Director of Public Prosecutions v Simmons

[2024] VCC 665

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-21-00024

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALLISON SIMMONS (ALLISON TAOUK)

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JUDGE:	HIS HONOUR JUDGE D SEXTON
WHERE HELD:	Melbourne
DATE OF HEARING:	25 March 2024 (Plea); 9 May 2024 (Further Plea)
DATE OF SENTENCE:	16 May 2024
CASE MAY BE CITED AS:	DPP v Simmons
MEDIUM NEUTRAL CITATION:	[2024] VCC 665

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Theft from employer; course of conduct charges

Legislation Cited:      Sentencing Act 1991; Criminal Procedure Act 2009

Cases Cited:DPP v Bulfin [1998] VR 114; Dyason v The Queen  [2015] VSCA 120; Veen (No 2) [1988] 164 CLR 465; Stevens v The Queen [2021] VSCA 218; DPP v Flynn Tullipan (a Pseudonym) [2021] VSCA 191; DPP v Jones [2018] VCC 1459.

Sentence:                  Total Effective Sentence of 4 Years and 6 Months Imprisonment with a Non-Parole Period of 3 years and 2 Months Imprisonment

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr Peter Pickering	Solicitor for the Office of Public Prosecutions
For the Offender	Mr Raj Bhattacharya	Docherty Legal

HIS HONOUR:

1Allison Taouk, on 25 March 2024, you pleaded guilty before me to an indictment containing seven charges of theft, which carries a maximum penalty of 10 years’ imprisonment.

2You also admitted your criminal record.

3On this date, notwithstanding that you are named in the Indictment as Allison Simmons, you indicated that Taouk remains your preferred legal name with Simmons being your married name. Accordingly, in these remarks I will refer to you as Allison Taouk.

Circumstances of offending

4The circumstances of your offending were set out in the Summary of Prosecution Opening for Plea dated 18 March 2024, Exhibit 1 at your plea hearing.

5Your offending can now be briefly summarised.

6At the time of your offending, you were residing in Mildura and were employed by Merbein Mushrooms Pty Ltd, a family-owned mushroom farm operated by Vera and Geoffrey Izzard since 1970.

7You commenced your employment at Merbein Mushrooms in May 2010 and concluded this employment in April 2019 after the discovery of the current offending.  You were employed in the capacity of a payroll officer.  Your duties, among others, were to run the weekly pay cycles of all employees, including yourself, through a software package.

8The period of offending ranged from 2013 to 2019. During this period, your hourly pay ranged from $27.05 per hour in 2013 up to $30.50 an hour in 2019.  You were also paid an extra $125 per week for your OHS role which commenced in about 2011.  Over the offending period, you received a net total of $279,496.45 for income or salary from the victims in this matter.

9You worked in close proximity to Beverley Kavanaugh in the administration office, who would complete stand-in duties as the payroll officer when you were absent from work.  You had your own office within the administrative area for privacy purposes, which was used when you were performing your payroll duties.  On 30 January 2019, Ms Kavanaugh was approached by another employee who reported that $400 had been withdrawn from her pay and transferred to an unknown bank account.

10As you were working that day, Ms Kavanaugh made further checks and discovered that another employee had the same incorrect banking information as the employee who made the initial disclosure to Ms Kavanaugh.  That second employee was a casual worker, and was on leave that week, and should not have been receiving any pay.  On 4 February 2019, Ms Kavanaugh raised this discrepancy with you and you falsely told her that the casual employee had changed her bank account before going on leave.

11On 18 February 2019, which was payday for the employees, you were absent from work, as a result, Ms Kavanaugh finalised the weekly pay run.  A couple of days later on 21 February 2019, two employees informed Ms Kavanaugh and Mr Izzard, that they had not received their pay.  Upon inspection, it was apparent that these employees bank details had been changed to different accounts without their knowledge.  They had both been changed to an account with the account number ending in “CBA533”.  These accounts were later discovered to be operated by you.

12You reported being ill the following week, so Ms Kavanaugh again completed the pay run for that week.  A direct debit report from the payroll software was obtained which listed the accounts into which payments were made.  Several were identified as having the same account details as those of the employees who had not been paid in the preceding week.

13These records also revealed that from 14 September 2017 to 2 October 2018, in your capacity as payroll officer, you had transferred money into your own bank account against the name of a former employee who had ceased working at Merbein Mushrooms in August 2015.  Ultimately, an accounting firm was engaged to audit the payroll system.

14On 28 March 2019, a folder was located in your office containing bank statements that included the account details of the account ending in CBA533, which had been receiving payments that should have gone to other employees.

15The victims in this matter hired auditors and solicitors, who ultimately discovered a further three bank accounts into which you were paying money that should have been paid to other employees.

16Ultimately, that audit which included an analysis of your bank accounts from 1 March 2013 to 31 March 2019 revealed that across the financial years from 2013 to 2019, you stole $884,423.34 from Merbein Mushrooms.  You transferred this money into your own bank account but against the name of others in order to disguise the recipient of the money.

17After police became involved in March 2019, you were interviewed on 16 October 2019.  Whilst you essentially admitted transferring the money, you deflected responsibility, telling police that you did so at the direction of Mr Izzard, that he threatened to kill you if you told anyone, and that you started to deliberately make mistakes so that the arrangement would be detected.  By virtue of your plea of guilty, I proceed to sentence you on the basis that you were not truthful to police.

Victim impact

18No victim impact statements were provided in this matter.  However, it can reasonably be inferred that your sustained and serious offending had an adverse impact upon your victim, essentially a family-run business.  Whilst I was not informed of any particulars with regards to that adverse impact, it is apparent that extensive auditing over a period of time was required, before the matter was referred to police in March 2019.  Some five years later, the delay associated with the completion of this matter has no doubt impacted upon your victims, as it has you.

Nature and gravity of your offending and your level of culpability for it

19As previous sentencing decisions and authorities have made clear, offences of this nature invariably represent serious criminality.[1]  The offending often involves a carefully calculated course of conduct over a significant period of time, repeated deliberate acts of dishonesty, and substantial amounts of money.  The offender often holds a position of responsibility or trust, and has the ability to disguise or camouflage the conduct in question.  Detection can be very difficult.  The result of these considerations means that the sentencing purpose of general deterrence will usually carry particular significance, as will the need for a sentence which reflects strong denunciation by the sentencing court.

[1]DPP v Bulfin [1998] VR 114; Dyason v The Queen  [2015] VSCA 120

20In your case, your offending spanned a period of approximately six years, and must therefore be seen as very sustained offending.  Each of the seven charges to which you have pleaded guilty are course of conduct charges, reflecting multiple incidents of the commission of the same offence during the specified period referred to in each charge.  Indeed, as indicated at paragraph 27 of the Summary of Prosecution Opening for Plea, your criminality involved 435 transactions across seven financial years from 2013 to 2019, representing therefore 435 separate acts of dishonesty on your part.  The quantum of your thefts is significant, $884,423.34.  As indicated by the prosecution, your offending involved a sophisticated level of subterfuge, which involved changing bank account details, and utilising the accounts of both past and present employees to facilitate your dishonesty and to avoid detection.

21Due to your role within the company, you were held in a position of trust, being responsible for the payroll system.  You breached that trust through your offending, a significant matter with regards to both the nature and gravity of your offending and your level of culpability for it.

22You have a prior conviction of considerable relevance to the sentencing exercise, for serious dishonesty for which you received a suspended sentence of imprisonment in May 2004, essentially for similar offending.  As the authorities make clear, you are not to be punished again for your prior offending, and your criminal history cannot be given such weight as to lead to the imposition of a penalty which is disproportionate to the gravity of the current offending, however, your relevant prior conviction is relevant with regards to your moral culpability for the current offending.  You knew of the gravity of such conduct when you received a suspended sentence of imprisonment in 2004.[2]  That you would again engage in such serious criminality elevates, in my view, your moral culpability for the current offending.

[2]Veen (No 2) [1988] 164 CLR 465; Stevens v The Queen [2021] VSCA 218 at paragraph 23

23Further, with regards to an analysis of your level of culpability for the offending, it is difficult, in my view, to ascertain with any clarity your motivations for the sustained dishonesty offending.  I do not accept the explanation given by you to police, maintained in your contact with psychologist, Carla Lechner, that you were essentially acting under the direction of Mr Izzard, under threat of violence.

24At your plea hearing, your counsel indicated that not much could be said about your offending.  The Summary of Prosecution Opening at paragraphs 28‑30 sets out in some detail the expenditures on your part that were revealed as a result of the audit of your accounts.  A considerable amount was said to be spent on gambling, though I was not informed that any difficulties in this regard motivated your offending.  At your plea hearing, I raised the anomaly of approximately $180,000 being spent on Facebook, apparently in the context of you participating in online games.  The prosecution opening also reveals a relatively significant sum of money being paid to third parties including your family members.  Whilst there remains, in my view, some ambiguity with regards to the reasons for your offending, it seems clear to me that there is an absence of any evidence with regards to a lavish lifestyle often seen in cases such as this.  In any event, one thing is clear – your offending only stopped when your criminality was detected.  When confronted, rather than accepting your considerable wrongdoing, you attempted to deflect responsibility elsewhere.

25Your counsel did not submit that your moral culpability was reduced in any way due to the well-known mental impairment principles.  In all the circumstances, I have concluded that your offending represents a serious example of this particular type of offending, and your moral culpability for it is high.

Personal circumstances

26Your personal history and circumstances were set out in your counsel’s plea submissions dated 21 March 2024, Exhibit A, and the Psychological Report of Ms Carla Lechner dated December 11 2023, Exhibit B.

27You are now 52 years of age, you have resided in the Mildura area for over 20 years.  You reported to Ms Lechner that your father is of Lebanese origin, and your mother is Australian.  Your childhood was apparently devoid of any domestic violence, substance abuse issues and parental mental health issues.  You did however, find your family environment to lack nurturance and affection.  According to your counsels’ submissions, you are the second youngest in a sibship of nine.  You report a close relationship with three of your siblings.

28You were born and raised in Bendigo and attended school there until your family moved to Melbourne when you were in Year 11.  You reported to Ms Lechner that you found this immensely unsettling, and that it prompted your early departure from school at some stage in Year 11.

29Since your exit from school, you have worked in administrative positions, and at the age of 19, you married a man 11 years your senior.  From this relationship you had three children.  You report that your husband was emotionally controlling and became physically abusive towards the end of the relationship.  You told Ms Lechner that he once held a gun to your head.

30You separated from your husband and ultimately found yourself in Mildura with your three young children in 1996.  You took a number of temporary working positions over this time before finding more permanent positions when your children were older.

31You commenced another relationship and married in 2010 which ultimately ended amicably in 2019.  You lost your mother in 2018 which apparently caused great distress to you.

32Having moved to the Mildura area in the late 1990s, you remained there until 2019 when you returned to Bendigo where you resided with your brother, and from about 2020, worked in an office administration role before ultimately being remanded in custody at your plea hearing on 25 March 2024.

33During your time in Mildura, you worked for Merbein Mushrooms between the period of 2013 to 2019.  For a number of years while employed at Merbein, you also operated a beauty service business from which you earned some income between 2014 and 2019, and you worked for Australia Post for a short period in 2018.

34As I have indicated, of considerable relevance to the sentencing exercise is your involvement in another period of employment in Mildura that led to your prior conviction from 2004.  Details with regards to that matter were provided to the Court in the context of the pre-trial hearing before me in September 2023.  From the end of 1999, you were employed as a bookkeeper and payroll officer for a citrus contracting company, where you were responsible for the payroll.  Around the middle of 2000, discrepancies on the payroll system were identified, involving extra payments of wages into your bank account.  You were ultimately charged with and pleaded guilty to 61 charges of obtain property by deception, with the offending occurring between July 2000 and February 2001, in the amount of approximately $27,000.  At the Mildura Magistrates’ Court on 11 May 2004, you were sentenced to three months’ imprisonment, with this sentence wholly suspended for 12 months.

35In gaining an appreciation of your personal circumstances and background, I have had regards to the report of clinical psychologist, Carla Lechner, dated 30 December 2023, Exhibit B at your plea hearing.  In your assessment interview with Ms Lechner, you apparently referred to a tense relationship with your strict Lebanese father, and the trauma associated with your previous abusive marriage from which your three children were born.  You referred to feeling fearful of domineering men, and acquiescing to their requests and demands in order to stay safe.[3]  According to Ms Lechner, you evidenced some symptoms of complex Post  Traumatic Stress Disorder, such as chronically low self-esteem, emotional dysregulation, poor interpersonal trust and a high level of anxiety.  According to Ms Lechner, you present with longstanding symptoms of depression and currently fulfill the criteria of a diagnosis of Major Depressive Disorder.[4]  As I have indicated, you essentially maintained your denial of responsibility for the offending with Ms Lechner.  You denied a gambling or substance abuse problem, and although you were not able to explain identified expenditure in your bank account, you maintained that you did not enrich your lifestyle through your offending conduct.[5]

[3]Psychological Report by Ms Carla Lechner dated 30 December 2023, 4.

[4]Ibid 1.

[5]Ibid 7.

Sentencing factors

36The Sentencing Act 1991 requires me to have regard to various factors when formulating an appropriate sentence in your case. I have already referred to the maximum penalty for the offence of theft, the nature and gravity of your offending and your level of culpability for it, and your previous character.

37The Sentencing Act 1991 requires me to have regard to whether you pleaded guilty to the offences and, if so, the stage in proceedings at which you did so or indicated an intention to do so.[6]

[6]Sentencing Act 1991, S5(2)(e).

38In your case, you entered your pleas of guilty to the charges at your arraignment on 2 November 2023.  Your case was otherwise heading to trial six days later, at the commencement of the County Court circuit in Mildura before me on Wednesday, 8 November 2023.

39In those circumstances, your pleas of guilty must be seen as having been entered quite late in the proceedings, only a matter of days before trial.  Nevertheless, your pleas of guilty carry with them utilitarian value.  By virtue of your pleas of guilty, a criminal trial of some length has been avoided, saving the court valuable time and saving costs to the community.

40Importantly, by virtue of your pleas of guilty, your victim has been spared from giving evidence at trial.  There is of course a significant utilitarian value which arises through the encouragement of those who are guilty to so plead and, accordingly, a sentencing discount is warranted.  However, whilst your pleas of guilty must represent an acceptance by you of criminal responsibility, you have apparently maintained your position with regard to a deflection of responsibility, as evidenced from the report of clinical psychologist, Carla Lechner.

41Ms Lechner opines that you appear “in denial of the nature and extent of (your) actions”.[7]  Given those sentiments, and notwithstanding your pleas of guilty, I have concluded that your level of insight with regard to your wrongdoing is poor, and you are unable to demonstrate any meaningful remorse for your illegality.  These matters have implications with regard to your prospects for rehabilitation, and the need for any sentence to specifically deter you and adequately protect the community.

[7]Psychological Report by Ms Carla Lechner dated 30 December 2023, 7.

42I turn now to the issue of delay.  Your offending continued until February 2019.  You were interviewed by police on 16 October 2019.  The matter was first listed at the Mildura Magistrates’ Court on 23 June 2020.  Your plea hearing before me did not take place until 25 March 2024.  The considerable delay associated with this matter is relevant to the sentencing exercise.

43The detailed chronology attached to the Summary of Prosecution Opening sets out the extended procedural history of this matter.  You exercised your right to take this matter to a contested committal, which occurred on 8 January 2021, upon which you were committed for trial in relation to 561 charges of theft.  As detailed in the chronology, there followed a series of delays associated with prosecution applications for extensions of time with regard to service of relevant material.  In particular, from 30 November 2021 there were clearly delays associated with the prosecution provision of a forensic accounting report.  Notwithstanding that such a report was initially indicated as being due in August 2022, in June 2022, the prosecution sought a further six-month extension to provide this report.

44At a Directions Hearing on 2 September 2022, according to the prosecution chronology, the revised date for the provision of this report was indicated as being November or December 2022, with time being needed to digest its contents, an updated Prosecution Opening was to be filed after receipt of this report, and discussions could not occur until receipt of the report.

45The forensic accountant’s report was ultimately provided on 18 October 2022.  A supplementary report was provided on 14 March 2023.  Whilst it is no doubt true that, based upon an earlier defence response, the undertaking of the alleged transactions were not in issue, rather whether or not you were authorised to make those transactions appeared to be the fact in issue, the fact remains that the forensic accounting report was clearly important with regard to the nature and scope of the prosecution case and the delays associated with its provision are not of your making.

46Further delays were caused through you exercising your rights to seek a sentence indication, which was given on 8 June 2023 and rejected by you on 13 June 2023, and subsequently due to your trial listed on 3 July 2023 not being reached and through pre-trial hearings, which included a contested tendency application on 28 September 2023.

47I accept in these circumstances that the extended delay associated with this matter has no doubt weighed heavily upon you, warranting a mitigatory allowance with regard to sentencing.

48I turn now to a consideration of your mental health and the impact of a custodial sentence.  Your counsel submitted essentially that mitigatory allowances were warranted pursuant to Verdins’ principles 5 and 6 – that due to your mental health issues a term of imprisonment would weigh more heavily upon you than a person in normal health, and further that there is a serious risk that imprisonment will have a seriously adverse impact on your mental health.

49According to Ms Lechner, you present with longstanding symptoms of depression and currently fulfil the criteria of a diagnosis of Major Depressive Disorder.  You also present with some symptoms of Complex Post-Traumatic Stress Disorder.[8]  According to Ms Lechner:

“Involvement with psychological supports in custody is strongly advised as she is at risk of self-harm in the setting of increased anxiety and further lowered self-esteem associated with being in the prison environment”.[9]

[8]Ibid 1.

[9]Ibid 7.

50In the Addendum from Ms Lechner dated 9 January 2024, specifically with regard to the impact of a term of imprisonment on your mental health, Ms Lechner concluded:

“It is my opinion that she suffers symptoms of Major Depressive Disorder that would be significantly aggravated by a term of imprisonment.  I would anticipate an increased risk of suicidal ideation and potential suicidal gestures as her feelings of hopelessness and low self-esteem would be exacerbated by the prison environment.  I would consider this to be a serious risk to be taken into account when considering her management.  The risk of suicide and a further decline in her mood state would represent a significantly adverse impact on her mental health.”

51The medical material tendered on your behalf and marked Exhibit C does document a history of depression dating back to 2012, for which you had been medicated, and a second episode of depression dating from 2017 and 2018.  I do not agree with the prosecution submission that the references to a history of depression may be simply your self-report.

52According to Dr Santhusha Wajekoon, in a report dated 7 December 2018, the doctor confirms a diagnosis of Major Depressive Disorder (recurrent) – moderate episodes, second episode, noting symptoms of depression with moderate severity.

53At your further plea hearing before me on 9 May 2024, your counsel provided updated details with regards to your difficulties in custody, amplifying further written submissions filed in preparation for that hearing.  According to your counsel, you have instructed that you have found the time in custody to date very difficult, and you have experienced difficulties sleeping, and cry all the time.  You apparently spoke to a mental health nurse upon initial entry into the custodial setting, and then a few weeks later.  You are apparently waiting to speak to a psychologist.  You have been offered antidepressants, however, have decided not to recommence this medication, which you apparently ceased a number of years ago.  You have also instructed that you have encountered some physical difficulties within the custodial setting, with pain medication being required due to your back problems and inability to access your usual back brace to support your back, and some further medical exploration required with regards to a recent cervical screening.  No medical or other documentation was provided to corroborate these asserted difficulties.  However, I accept in a general sense that your time in custody has been difficult, leading to contact with mental health specialists.

54With the exception of the documents to which I have referred, your counsel’s submissions with regards to the mitigatory impact of your difficulties in custody were largely premised on the report of psychologist Carla Lechner.  The opinions expressed by Ms Lechner are somewhat sparse in detail, particularly with regard to whether or not and to what degree a sentence of imprisonment would significantly adversely impact upon your mental health.  However, in the circumstances, I am prepared to make a mitigatory allowance pursuant to Verdins’ principle 5 and, to a lesser extent, principle 6.

55I turn now to the impact on sentencing with regards to these offences being course of conduct offences.  Each of the seven charges to which you have pleaded guilty are course of conduct charges, reflecting the fact that each single charge incorporates multiple instances of offending over a specified period, constituting a course of conduct having regard to their time, place or purpose of commission.[10] Pursuant to s5(2F) of the Sentencing Act 1991, in sentencing you for the incidents of the commission of an offence included in a course of conduct charge, I must impose a sentence that reflects the totality of the offending that constitutes the course of conduct; and I must not impose a sentence that exceeds the maximum penalty prescribed for the offence if charged as a single offence – in your case 10 years’ imprisonment. In dealing with the impact upon sentencing of the fact that you have pleaded guilty to seven course of conduct charges, I have had regard to the Court of Appeal decision of Tullipan.[11]  In that case, the Court of Appeal described the task of determining the appropriate sentence for a course of conduct charge as a task of particular difficulty, chiefly because it is so markedly different from the conventional sentencing exercise undertaken when sentencing for multiple offences.[12]  The court noted with regards to a course of conduct charge, that:

“The Judge is typically confronted with a large, or very large, number of instances of the one offence and is expected to arrive at a single sentence which ‘reflects the totality of the offending’, while operating within the limit of the maximum penalty applicable to a single instance of the offence.”[13]

[10]Criminal Procedure Act [2009], Schedule 1, Clause 4.

[11]DPP v Flynn Tullipan (a Pseudonym) [2021] VSCA 191

[12]Ibid 4.

[13]Ibid 5.

56Given this particular difficulty, the court referred to the need for maximum assistance to be provided to the court by way of reference to relevant sentencing materials.[14]

[14]Ibid 46.

57In light of the sentiments expressed in Tullipan, I received and have considered various authorities from both defence and the prosecution, on the issue of current sentencing practices.  As I indicated to counsel at the Further Plea hearing on 9 May 2024, most if not all of the authorities referred to by defence are factually distinguishable from yours, though they have been of assistance.  Likewise, the authorities referred to by the prosecution were also factually distinguishable, though of some assistance.  In any event, current sentencing practices form just one of the many relevant sentencing factors in the sentencing exercise.  Sentences involving a head sentence with a non-parole period are not uncommon in relation to cases involving essentially theft from an employer.  I note in this case that your counsel, in both written and oral submissions, conceded that a term of imprisonment with a non-parole period would be an appropriate penalty.

58I turn now to the impact, if any, of the previous sentence indication given by another Judge of this Court on 8 June 2023, on the sentencing exercise, a matter which was raised during the further plea hearing before me on 9 May 2024.  Given that you ultimately rejected the sentence indication, as was your right, the indication is not binding upon me.  Furthermore, the indication was given over four months prior to this matter ultimately resolving to a plea of guilty in the circumstances that I have described.  I have already described the timing of your plea as being relatively late in the proceedings, and this is in contrast to the benefit that would have been applicable as at the date of the sentence indication in June 2023.  The sentence indication was necessarily given without the benefit of the full suite of plea material now relied upon on your behalf, including the psychological report of Carla Lechner on 30 December 2023 together with the addendum on 9 January 2024, Exhibit B, the recent medical documentation, Exhibit C, and the recent information with regards to your hardship in custody.  In all the circumstances, whilst I have taken note of the sentence indication previously given, for the reasons I have articulated, I have nevertheless arrived at my own independent assessment with regards to the appropriate sentence in your case, having regard to orthodox sentencing principles and the relevant provisions of the Sentencing Act 1991.

Principles and purposes

59Given the nature of your offending, the sentencing purpose of general deterrence carries particular significance in the sentencing exercise.  Other like-minded offenders must know that engaging in such serious criminality will attract significant punishment in the form of incarceration where appropriate.  There is also a need for strong denunciation given the nature of your offending.

60Given your relevant criminal history and your ongoing deflection of responsibility for the current offending, there is a need for any penalty I impose to specifically deter you from engaging in such conduct again.  Also given these matters, together with the sustained and serious nature of your offending, I do not view your prospects of rehabilitation as being particularly positive.  There is a need for any penalty I impose to appropriately protect the community.

Aggregate sentence

61At your further plea hearing on 9 May 2024, I raised with counsel the issue of whether, having regard to s9 of the Sentencing Act 1991, an aggregate sentence of imprisonment was available and appropriate in the circumstances of your case, particularly given that you fall to be sentenced for multiple course of conduct charges. In both written and oral submissions, Mr Pickering who appeared on behalf of the Director submitted that an aggregate sentence can be applied in this case, and the fact that you fall to be sentenced for numerous course of conduct charges does not prevent an aggregate sentence being imposed. Your counsel submitted essentially that an aggregate sentence was both available and appropriate in the circumstances of your case, noting that one of the sentencing authorities relied upon in written submissions involved the imposition of an aggregate sentence for multiple course of conduct charges.[15] Having carefully considered s.9 of the Sentencing Act 1991, I have concluded that an aggregate sentence is available in your case. Course of conduct charges are not contained in the list of matters which have been expressly excluded from the imposition of an aggregate sentence, pursuant to s9(1A). Whilst course of conduct charges are not referred to at s9(4A), a rolled up charge, which has been interpreted from a sentencing perspective as being akin to a course of conduct charge is mentioned, and in any event I have concluded that s9(4A) is inclusive rather than exhaustively covering the field so to speak. Moreover, having regard to s9(1) of the Sentencing Act 1991, you stand to be sentenced with regards to offences which are clearly founded on the same facts, or form part of a series of offences of the same or a similar character such that an aggregate sentence of imprisonment is appropriate. In your case, the delineation between the charges is referable only to distinct financial years. Your offending is the same, utilising the same methodology, on the same victim. In those circumstances, an aggregate sentence is appropriate.

[15]DPP v Jones [2018] VCC 1459

Sentence to be imposed

62In relation to the seven charges on the indictment, you are convicted and sentenced to an aggregate sentence of four years’ and six months' imprisonment.  I order that you serve a period of three years’ and two months' imprisonment before becoming eligible for parole.

63Pursuant to s18(4) of the Sentencing Act 1991, I declare a period of 52 days pre-sentence detention, and I order that this amount be deducted administratively from your sentence.

64Pursuant to s6AAA of the Sentencing Act 1991, I declare that had you pleaded not guilty but been found guilty at trial, I would have imposed a total effective sentence of six years’ imprisonment with a non-parole period of four years and six months.

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