Director of Public Prosecutions v Simovska
[2019] VCC 525
•12 April 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02251
CR-17-02250
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TANYA SIMOVSKA |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2019 & 11 April 2019 | |
DATE OF SENTENCE: | 12 April 2019 | |
CASE MAY BE CITED AS: | DPP v Simovska | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 525 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Theft – Obtaining financial advantage by deception – Possess a prohibited weapon without exemption – Taser – Fail to appear in accordance with bail – Plea of guilty.
Legislation Cited: Sentencing Act1991; Road Safety Act 1986
Cases Cited: R v Verdins & Ors (2007) 16 VR 269.
Sentence: 18 months imprisonment with a non-parole period of 9 months imprisonment; Fine; 16 days pre-sentence detention; Compensation orders made; Forfeiture orders made; Forensic sample order made; Licence and permits cancelled and disqualified for 6 months; 6AAA declaration: 3 years imprisonment with a non-parole period of 18 months imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Sharpley | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr P. Casey | Cameron Marshall & Associates |
HIS HONOUR:
1 Tanya Simovska, on 29 March 2019, you pleaded guilty to three charges of theft (Charges 1 to 3), with Charge 1 and Charge 3 being charged on a course of conduct basis. Additionally, you pleaded guilty to Charge 4, obtaining a financial advantage by deception that occurred during the period covered by Charge 3 on the indictment. Charge 1 consists of 43 separate thefts over a period of five months totalling $76,283, whilst Charge 3 consists of 37 separate thefts over a period of ten months totalling $60,544.
2 The maximum penalty for each of the offences on the indictment is ten years’ imprisonment.
3 You also pleaded guilty to two related summary offences, being Charge 1, possess a prohibited weapon without exemption being a taser, and Charge 41 on 21 October 2016 you did fail without reasonable cause to appear in accordance with your undertaking of bail.
4 The maximum penalty for summary charge 1 is 240 penalty units or two years’ imprisonment while the penalty for summary charge 41 is two years’ imprisonment.
5 You admitted one appearance before the Sunshine Magistrates’ Court in August 1998 for unlawful assault which was dealt with by way of an adjournment without conviction. I treat this appearance as irrelevant for the purposes of sentence.
6 As will appear later in these reasons your plea did not conclude on 29 March.
7 Tendered as Exhibit A and read aloud in court was the summary of prosecution opening upon plea. In the period from March to August 2010, you were employed as a real estate representative for PRD Jens Gaunt Real Estate. Your role within the estate agency was as property manager in charge of managing 150 rental properties. During the course of your employment you received a number of payments from tenants for the first month’s rent and bond for newly leased properties. Most payments were given to you in cash. Rather than deal with these moneys in accordance with statute and the fiduciary duty that you owed to your employer, you retained the funds. It is apparent that you commenced to steal from your employer and/or the tenants whose bond moneys should have been paid to the Residential Tenancies Bond Authority (RTBA) as soon as you commenced your employment at PRD Jens Gaunt. (Charge 1) Shortly after you left the employment of PRD Jens Gaunt, another agent’s representative took your place and an audit was conducted of the rental roll and the 43 thefts were uncovered.
8 Moving to Charge 3, between August 2014 and June 2015, you were employed again as a property manager by Hunter French Real Estate. Again, almost immediately upon being employed, you commenced to steal from your employer and tenants who you dealt with in your role as rental property manager. Again, immediately after your resignation in June 2015, another property manager was employed in your stead. Upon an audit being conducted of the property management portfolio, the 37 thefts were revealed.
9 Whilst employed at Hunter French Real Estate, you committed Charge 4, obtaining a financial advantage by deception in the following circumstances. Your victim, Mr Lee, leased a property in Nicholson Street, Footscray. Mr Lee provided you with a bank cheque by way of bond to secure the property. Subsequently, Mr Lee changed his mind about the lease and informed you of this fact by email. You responded to Mr Lee by telling him that, “The bond covers the letting fee and lease break fees, et cetera”. You sent to Mr Lee a residential tenancies bond authority which Mr Lee’s wife signed but left the bank account details blank as requested by you.
10 On 28 April 2015 a copy of the form was forwarded to the Residential Tenancies Bond Authority to claim the bond. You had inserted your personal bank account details into the form and received the sum of $1,127 into your bank account on 29 April 2015. The following day you transferred those funds to another of your personal bank accounts. Thereafter you retained the funds for your own use. I regard this offending as very calculating.
11 Between the period of your offending in Charge 1 and that period contained in Charge 3, you were employed on a permanent part time basis at a number of real estate agencies as an agent’s representative in charge of the rent roll. During that period on 6 October 2011, you attended Thrifty Car Rentals (“Thrifty”) in Footscray to lease a motor vehicle being a Mitsubishi Lancer sedan. You agreed to lease the vehicle for a period of four days and the vehicle was due to be returned on 10 October 2011. You did not return the motor vehicle and subsequently resisted attempts by Thrifty to reclaim it. The vehicle was reported stolen on 14 January 2012 and you retained possession of the vehicle until it was seized by police on 17 August 2012 and returned to Thrifty. (Charge 2)
12 As part of the Crown opening a chronology of the prosecution was set out with some particularity. In respect to Charges 1 and 2, you were interviewed by police on 17 August 2012. You denied any impropriety in respect to your employment at PRD Jens Gaunt. You claimed that all monies received by you were given to Janelle Finnigan at reception for banking and that Ms Finnigan used to receipt rent payments. (See R of I Q&A 58) Further, you told police it was Ms Finnigan’s role to do the banking although you had done it on occasion. (Q&A 97) You told police that all bonds went to the RTBA (Q&A 105). You also told police that in respect to some of the alleged thefts there was a conspiracy between Ben Crooks and Michael Bevan and others against you. (Qs &As 292 to 311) Mr Bevan was a principal in the victim firm while Mr Crooks was an employee of that firm and each have made statements for the hand-up brief.
13 As to Charge 2, you told police that you had always wanted to return the car when you had the money to pay for it in full. (Q&A 38) This answer sits in stark contrast with the statements of James Leech that set out the attempts made by him and his employees to contact you to arrange payment for the vehicle and/ or its return and your responses to those attempts. (See depositions pages 193 to 198)
14 You were not charged until 22 October 2013. The police chose to deal with you by way of summons. Accordingly, you committed the offence the subject of Charge 3 whilst having been charged in respect of Charge 1.
15 You were interviewed in respect to Charge 3 on 3 May 2016 and were once again released on summons in respect of the dishonesty offences. However, you were bailed in respect to the summary offence of possession of a taser. During the record of interview you denied any dishonesty and asserted that you resigned your position with Hunter French Real Estate because sexual demands were made of you by one of the partners of that firm.
16 You told police that the system in respect of payments was effectively the same as that at PRD Jens Gaunt in that all monies and cheques were handed into reception for processing. (Qs&As 104 to 106) Further, you told police that you had no idea where the cash would go because it was not part of your job and that Rita would do the banking. (Qs&As 167 to170) In respect to the allegations made against you at Q&A 210 you told the police, “It’s easy to point at people”, implying that others were to blame.
17 In respect to cash payments for bonds you told police that those monies should have been paid into trust and a cheque drawn to the RTBA and this was the responsibility of Kiki the wife of one of the partners of the victim firm. (Qs&As 223 to 237).
18 In each record of interview you told the police a tissue of lies and sought to shift the blame for your offending elsewhere.
19 Between 22 October 2013 and 3 May 2016, you failed to appear before the Magistrates’ Court on five occasions in respect to Charges 1 and 2. On each occasion warrants were issued for your arrest. A similar course of conduct was adopted by you in respect to the matters that comprise Charges 3 and 4. Ultimately on 14 July 2017 you elected to have the charges uplifted from the summary stream into the committal stream. Thereafter you were represented by a number of legal practitioners until the matter was resolved into a plea on 8 November 2018 on the eleventh directions hearing in this court.
20 Tendered as Exhibit B were a bundle of victim impact statements. In respect to each of the two real estate agencies your thefts caused loss to those businesses over and above your thefts. Each agency lost business because of your conduct and as a result of this loss of business they suffered financial stress. The same can be said for the owner of the Thrifty Car Rentals franchise and to a lesser extent Mr Lee, who simply deposed that the money that he lost could have been used on the education of his child.
21 Tendered as Exhibit 7 on the plea was the report of Ian Joblin, psychologist, dated 21 March 2019. Mr Joblin consulted with you on one occasion, the day of his report. Mr Casey of Counsel, who appeared on your behalf, relied on Mr Joblin’s report in respect to your background as well as in combination with Exhibits 1, 3, 4, 5 and 6 to found a submission that your offending was caused by and based in an abusive relationship that you had with Michael Azzopardi that over time stripped you of your self-esteem, self-respect and integrity.
22 You are 37 years of age. You were raised in Sunshine. You attended Footscray Girls College and in 1999 successfully completed Year 12. Your parents migrated to Australia from Macedonia. Your father is a pensioner aged 64 and during his working life was a factory worker. Your mother is 70 years of age, and your parents live together in Melton. You have two brothers with whom you are on good terms.
23 On leaving school, you commenced work in 2000 as a receptionist. You studied at night and qualified as a real estate agent’s representative. In 2002, you commenced work in the real estate industry and worked in the Sunbury, Pascoe Vale and St Kilda areas.
24 You married and a daughter was born to you in September 2005. With your young family you travelled to Queensland and New South Wales until you returned in 2006 to Victoria and commenced to work in Sunshine in the recruitment industry for a period of approximately 12 months. Your marriage was short lived and you formed a relationship with Michael Azzopardi and in 2008 you gave birth to a son to him.
25 You reported to Mr Joblin on 21 March 2019 that since the last offences in 2015 that you had "some work”. This information is in contrast to the reference tendered as Exhibit 2 on the plea from Trimson Partners dated 20 March 2019. It refers to you having worked for that organisation as “a senior property manager managing approximately 240 properties.” The reference continues:
“As the office manager of Trimson Partners, I am delighted to have worked with Ms Simovska since being employed by the firm in June 2015.”
26 On its face, there is real conflict in the history that was provided to me as to your employment since 2015.
27 An analysis of Exhibits 1, 3 and 5 reveal that Mr Azzopardi has a number of prior convictions that include assaults on you, despite the existence of Family Violence Intervention Orders being in place. The exhibits also reveal a reluctance in you from time to time, having summoned police assistance, to pursue intervention orders.
28 You told Mr Joblin in conference that Mr Azzopardi was violent towards you, that he threatened you and that he sexually abused you. Further, you asserted against Mr Azzopardi that he was extremely demanding financially of you because of his drug habit and this was the motive for your offending.
29 It must be noted that you are the sole source of the claim that Mr Azzopardi made repeated and unwarranted demands on you for money.
30 Mr Joblin opined:
“The basis of the offending in my opinion involved a strong psychological context. She reported that the constant battering resulted in her need to try to find money. She wanted to be able to give him money for drugs so she could avoid that battering. She reported that she developed strong feelings of helplessness and became distressed, even suicidal. It is apparent that the offences for which she is before this court occurred in that context.”
31 Called on the plea was your close friend, Ms Johnson, as well as your father. Both spoke as to observing the aftermath of Mr Azzopardi’s violence towards you and that Mr Azzopardi had assaulted and threatened each of them on occasion. Your father’s view was that “she worked whilst he took the money”.
32 Ms Johnson met you in 2015 and you quickly became fond friends. She, as well as your father, swore that your son from 2015 for a period of approximately 18 months would not speak to adults although he spoke to you and to children. This problem, according to Ms Johnson, resolved after a period of approximately 18 months. There is no evidence before me as to the cause of this behaviour and it is unclear what role this information plays in the sentencing exercise.
33 Apart from the commission of the offence that founds Charge 2, namely the theft of a motor vehicle, there is a period of approximately four years between the offending the subject of Charge 1 and that of Charge 3. However, during this time, you continued your relationship with Mr Azzopardi and it was not put to me that he became any less violent or demanding of you during that period of time.
34 Tendered as Exhibit 5 was an email chain dated 9 November 2015 between yourself and Mr Azzopardi. The documents were sent to my associate during the luncheon adjournment on day one of the plea by Mr John Verduci, a partner of Trimson Partners. This exchange evidenced in my view no more than a normal exchange between you and Mr Azzopardi in 2015, well after your offending the subject of the indictment had concluded. The transfer concerned the transfer of moneys from your account at the request of Mr Azzopardi to the account of a Mr Brian Bourke. It is to be noted that you refer to one another by your respective diminutives Bab and Bub.
35 The reason put to me for your offending does not sit well with the denials that you made to the police in 2012 and 2016, nor with the four-year gap between the offending the subject of Charges 1 and 3. Further, you are the sole source of the assertion that Mr Azzopardi made unwarranted demands on you for money that was the motivation for your offending, an assertion not supported by sworn evidence.
36 Mr Casey submitted that in respect of Charges 1 and 2 on the indictment that you should be sentenced to terms of imprisonment but that those terms of imprisonment should be wholly suspended and that in respect to Charges 3 and 4 and the related summary offences, that you be placed on a community correction order. I informed Mr Casey erroneously that such a disposition was prohibited by statute.
37 Because I had misled Mr Casey and potentially affected the proper presentation of the plea, I brought the matter back for further hearing on 11 April to inform Mr Casey of my error and to give him an opportunity to expand upon his submission. During the course of discussion I pointed out to Mr Casey that it would be an anomalous situation to concede that Charges 1 and 2 were deserving of imprisonment yet the subsequent offending was not. Ultimately Mr Casey submitted that in all the circumstances a community correction order involving unpaid community work and a condition for psychological treatment was appropriate in all the circumstances.
38
Mr Casey additionally tendered a letter from you that became Exhibit 8.
Mr Casey informed me that as a result of receiving the letter he became aware that you had been consulting a psychologist for two years and that he was hopeful of providing the court with a report from your treating psychologist by the next morning. Accordingly the matter was listed for further plea and possible sentence on 12 April.
39 In Exhibit 8 you acknowledge your offending and express disappointment in yourself and concern for yourself and your children arising out of your relationship with Mr Azzopardi. Nowhere in the document is there an expression of remorse or concern for your victims.
40 Mr Casey informed me that your children will be cared for by your parents, who are loving grandparents.
41 Your plea is a late one but has utilitarian benefit. I am not satisfied that it is evidence of remorse. The chronology of these proceedings is indicative of a person who has attempted to avoid the final reckoning for her offending. Mr Casey did not rely upon any of the limbs set out in R v Verdins. However, Mr Casey relied upon your relationship with Mr Azzopardi to submit that you suffered from “battered wife syndrome” although no expert evidence was before me to support this submission nor, if it had been, what role that syndrome played in your offending.
42 In addition, on the third day of the plea tendered as Exhibit 9 was a letter dated 11 April 2019 from Mr Stojecevski, psychologist. As was conceded by your counsel its contents do not assist you. To my mind the contents of Exhibit 9 positively work against you in that you consulted him on four occasions only, commencing on 30 June 2015, and your expressed concerns centred on ongoing harassment coming from your previous employer about who “apparently without substantiation was making allegations of misdemeanours and misappropriations of funds”. These allegations concern Charge 3 on the indictment. You were then and are now without remorse.
43 I accept that Mr Azzopardi was violent towards you and that your relationship with him was an abusive one. However, I am not satisfied on balance that Michael Azzopardi made demands on you for money as described. I am of the opinion that you are both dishonest and manipulative as is evidenced by your plea and the contents of each of the records of interview and the history of this prosecution as well as the gap in time between Charges 1 and 3.
44 I regard you as an appropriate vehicle for the application of the principle of general deterrence. Further, as the offending that founds Charge 3 occurred after you had been interviewed and charged in respect of the conduct that founds Charge 1, you are an appropriate vehicle for the application of specific deterrence.
45 In respect of Charges 1, 3 and 4, your offending involved a breach of trust. You caused financial hardship to your employers. However, you have not reoffended since 2015 and accordingly your prospects for rehabilitation must be regarded as better than average.
46 By this sentence I must punish you, publicly denounce your conduct and deter you and others from committing these kinds of crimes. I must look to your rehabilitation. Taking into account the circumstances of the offences and their effects, your personal circumstances and antecedents, endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you as follows:
On Charge 1 – 12 months’ imprisonment;
On Charge 2 – six months’ imprisonment;
On Charge 3 – 12 months’ imprisonment;
On Charge 4 – one month’s imprisonment.
47 I order that one month of the sentence imposed on Charge 2 and five months of the sentence imposed on Charge 3 be served cumulatively upon the sentence imposed on Charge 1. This results in a total effective sentence of 18 months’ imprisonment and I order that you be eligible for parole after serving nine months’ imprisonment.
48 In respect of the summary offences being Charges 1 and 41, I convict and sentence you to an aggregate fine of $750.
49 Pursuant to s6AAA of the Sentencing Act 1991, I declare that but for your plea of guilty I would have sentenced you to three years’ imprisonment with a non-parole period of 18 months’.
50 I declare that you have spent 16 days by way of pre‑sentence detention not including today. You may be seated.
51 I have made each of the compensation orders and the forfeiture orders and I hand them down.
52 Ms Simovska, would you please stand. The Crown have made application for what is known as a forensic sample and I have made that order, that being a scraping of your mouth. I have made the order because the seriousness of the circumstances of your offending warrant the order, the order is by consent and the granting of the order is in the public interest. I must inform you that if at the time of request you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. I hand down that order.
53 Are there any other matters?
54 MR CASEY: No, Your Honour.
55 MR SHARPLEY: There is the loss of licence question on the car theft, Your Honour, mandatory loss of licence.
56 HIS HONOUR: Is there a mandatory minimum?
57 MR SHARPLEY: No minimum, Your Honour.
58 HIS HONOUR: I order that all licences and permits to drive held by you under the Road Safety Act are cancelled and that you are disqualified from obtaining any such licence or permit for a period of six months from today.
59 COUNSEL: If Your Honour pleases.
60 HIS HONOUR: Thank you for reminding me of that, Mr Sharpley. You may remove the prisoner. Sine die.
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