Director of Public Prosecutions v Stevens

[2016] VCC 1392

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00184

DIRECTOR OF PUBLIC PROSECUTIONS

v

FIONA CATHERINE STEVENS

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JUDGE:	HER HONOUR JUDGE COHEN
WHERE HELD:	Melbourne
DATE OF HEARING:	6 May 2016, 22 June 2016, 11 August 2016, 9 September 2016
DATE OF SENTENCE:	16 September 2016
CASE MAY BE CITED AS:	DPP v Stevens
MEDIUM NEUTRAL CITATION:	[2016] VCC 1392

REASONS FOR SENTENCE
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Subject:  Sentencing; thefts from employer

Catchwords:             Accounts manager; 6 month period; 55 transfers totalling of $170,000 but half for personal gain; spent on drugs and gambling; mother of 6 year old child

Legislation Cited:     Sentencing Act 1991 (Vic) s 6AAA

Cases Cited:Boulton v The Queen; Clements v The Queen; Fitzgerald v The Queen [2014] VSCA 342; DPP v Felton [2007] VSCA 65

Sentence:                  TES: 3 months imprisonment followed by 2 year CCO

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic	OPP
For the Accused	Mr J. Miller	Paul Vale Criminal Law

HER HONOUR:

1Fiona Stevens, you have pleaded guilty to seven charges of theft. 

2The maximum penalty for each charge of theft is 10 years' imprisonment.  For reasons I shall explain, you will not be receiving anywhere near that maximum, even in total, but I must take it into account as reflecting in general terms the relative seriousness with which charges of theft are regarded by Parliament on behalf of the community.

3These offences were all committed against your employer at the time, a company called Straight Line Excavations Pty Ltd, which was operated by
Mr Tarkan Gulenc and his business partner, Mr George Parissis.

4Mr Gulenc had interviewed you and offered you employment with his company as the accounts and payroll manager, at a starting salary of $60,000 with a view to an increase to $65,000 after six months. You commenced at that work on 13 January 2015.  The following day you commenced to steal from your employer. 

5Over a period of about six months, in 55 separate transfers, you stole sums of money from the business' accounts.  They were transferred to your personal Westpac bank accounts.  Some of the transactions were disguised as payment for business invoices and some were purportedly payments to employees on the payroll.

6In the first two weeks of your employment, that is the second half of January last year, you stole $1,073.03 in four separate transactions.  In February there were two transfers totalling $1,826.  Over the following months, the numbers of transactions increased with the greatest monthly amount stolen being in June 2015 in 19 transfers totalling $76,117, and the largest single transaction being on 6 July 2015 for $23,579.

7Your thefts were reported to police by your employer on 15 July 2015 which is the same date on which your employment was terminated.

8It is accepted on your behalf that the total taken in the 55 dishonest transactions was $172,173.83.  Of that total, you say and the prosecution accepts, that as an estimate, the amount you actually gained through those transfers was approximately $80,000.  That is because some amounts were redirected by you to the suppliers or employees to whom the payments were meant to be paid.  You told police as an example, that for an employee who had earned $500 in a particular week, you would transfer, say $1,500, to your account and then from your account, pay the $500 into the employee's account.

9Some of the repayments or redirections by you were prompted by the fact that suppliers or employees complained that they had not yet been paid, or in one instance, an employee asked you about his child support payments that were meant to have been deducted from his pay every week, because he had been advised by the Agency that he owed such money.

10You claim that all of the money you gained was wasted on drugs and gambling.  Not only are those purposes not excuses for theft, but you say that you did not have a gambling problem until you started taking this money and spending it on gambling, mainly poker machines. Further, although you had past experience with illicit drug taking and had previously been introduced to using crystal methamphetamine known as “Ice” by a former partner, you say that when you started this employment in January 2015, you were not using methylamphetamines. However, with the money you stole, you say you resumed using that drug and then increased your use of it, addictively, once you had the money available to buy more.  The more you used, the more your drug problem increased, and with it, your work performance also became problematic.

11As the moneys were paid into accounts in your name, you were bound to be caught, so this was not a sophisticated plan and indeed, you told police that you were expecting that the employer would soon be audited. However, the fact that you attempted to disguise the thefts indicates that you knew from the outset that what you were doing was wrong.

12Your employment was terminated on 15 July.  You have said that you thought it was because your performance was poor due to the effects of your drug abuse.  However, as that appears to be the same date on which the employer reported the matter to the police, I cannot reach any conclusion on the reason for your dismissal.

13On 22 July 2015 you were arrested and interviewed by police.  You made a number of admissions, explained how you had not kept all of the money you had taken, said you had wasted all of the money on drugs and gambling, although you said you did not have a gambling addiction when you started working there. You also said that your drug addiction was not as bad at the time that you started that work as it became over the period that you were stealing.

14You said you knew you were going to get caught, but kept doing it as it did not seem real, although you say you tried to stop many times.  You admitted that had you not been caught, you would probably still be doing it.  You said that you loved working there.  You also acknowledged that Mr Gulenc would not have seen it in you to do this, and as you describe, would have “felt like his heart had been ripped out” to know that you had been lying to him and stealing from him for the last six months.

15I must assess the seriousness of your offending, both from an objective point of view and your personal (or subjective) blameworthiness.

16Although these offences were not sophisticated, their objective features make them serious.  This was a flagrant breach of the trust of your employer who had given you a job that gave you access to the business's accounts.  Your offending consisted of 55 separate acts extending over a six month period and increasing in frequency and amounts over the last couple of months. Although the division into seven separate charges is artificial, in that each charge covers what you stole in each calendar month of your employment, the duration and number of separate transfers reflects the seriousness of the overall conduct.

17I mentioned at the outset that the maximum penalty for each charge of theft is 10 years' imprisonment. I do not take it into account as reflecting that the overall total here would potentially have been 70 years, because of the artificial division into the seven charges.

18From a subjective point of view, there are in my view some particularly serious aspects.

19First, you seem to have started stealing through some sort of opportunism or temptation and not motivated by particular need.  You claim to have wasted all the money stolen on gambling and illegal drugs, which was self-indulgence, especially as you were not already heavily addicted to either gambling or drugs at that point, and indeed say that you had not previously had a gambling problem. You were not stealing through desperation, such as to pay off onerous debts, nor for your child's needs.  The thefts may have escalated with your growing “Ice” and gambling addictions as you spent money on those, but did not start for those reasons.

20Further, although you say you have struggled over the years to obtain and keep employment, and had no formal qualifications in accounting or bookkeeping, on being offered the opportunity of a job at a commencing salary of $60,000, you started stealing from your employer the very next day.

21I also regard as subjectively particularly serious that you were working on a daily basis with the people from whom you were stealing.  You knew that you were having an impact on individuals when there were complaints such as that the Child Support Agency claimed that the deductions were not being made from an individual's weekly pay.  You acknowledged to police that the man who employed you would have felt as if his heart had been ripped out. 

22A victim impact statement from Mr Gulenc sets out the reality of the impact of your offending on him, his business, his partner and his family.  Because he offered you the job and you reported to him in the business, he was responsible for supervising your duties and says his partner regarded him as responsible for the losses you inflicted. Mr Gulenc says that the trust between him and his business partner is now constantly in question.  They had to apply to increase their bank overdraft limit to accommodate suppliers and other contractors who were expecting payments, and incurred interest for that. They were also not able to draw their own wages for some time.  That in turn caused emotional stress between them, and between each of them and their respective wives.  Both have children to support and the impact on each family was real. Further, the company was fined by the Australian Taxation Office for incorrect lodgement of employee superannuation payments, the completion of those forms being one of your tasks.

23I am satisfied that at a personal level Mr Gulenc felt betrayed, and that there was real financial impact to him, his family, his business partner and the business itself, and further emotional stress as a result of all of that.

24When an employee who has been entrusted with tasks giving access to an employer's accounts steals from that employer, the theft will always involve a breach of trust.  When that occurs in a relative small or family run business, with impact on the individuals with whom the thieving employee actually works, the betrayal is much greater as it is personal, compared with when there is theft from a large corporate or institutional employer where the actual financial impact is not felt directly by individual managers or others with whom the guilty employee has worked.

25The total you stole was not insignificant, although I take into account that it was by no means as high as some of the cases of this type which come before the courts, nor did it continue for as long as some of those.  After six months, your employment was terminated.

26In my view, the duration and number of individual acts, the disguising of them, even if thinly, and huge personal betrayal of the man who gave you the opportunity of much better employment than you seem to have had previously, puts this case both objectively and subjectively into a medium range of seriousness for offences of theft from an employer.

27That level of seriousness calls for a sentence which conveys both to you and the community generally that opportunistic theft of this type, particularly maintained over a protracted period, is a serious matter and will attract serious punishment.  The message must be sent to those tempted by the circumstances of their employment to steal from an employer, that they can expect serious punishment.

28Also of relevance is your prior criminal history.  It is not extensive, but you do not come before this court with a previously unblemished record.  There is only one prior offence alleged, being a charge of obtaining property by deception for which you were convicted and sentenced in Bendigo Magistrates' Court in January 2010 to a Community Based Order with modest unpaid work and remedial conditions. That apparently arose from you purporting to place for sale online an item you never provided, but for which you received and kept $2000.  This was clearly an offence of dishonesty, and so relevant to the current thefts, but as a single prior conviction, is not in my view of serious weight.

29I note from some of the reports before me that you have told those reporters that you also were in trouble that took you before the Children’s Court.  I also note that you say you have used cannabis since early teenage, and other illegal drugs over the years, including of course crystal methylamphetamine during the period of these offences. I do not take either a Children’s Court history or the illegal drug abuse into account as prior offending, but it puts your single prior offence on your record into a context of someone not otherwise scrupulously law abiding.

30I note that there has been no offer by you to attempt to repay any of the money you stole from Straight Line Excavations Pty Ltd.  I understand that you have not had employment since, and have received only social security payments and a modest amount of child support from your young son's father, and that even that has recently ceased.

31I recognise that making repayment would be difficult for you, and neither your current partner nor your parents should be expected to be making the offer to repay your indebtedness.  However I conclude that your focus seems throughout to have been entirely on your own needs.

32Strongly in your favour is that you have pleaded guilty to these charges, and indeed made admissions as soon as you were questioned by police.  I am told that your plea of guilty was formally indicated at the committal mention on 12 February this year.  You are entitled to considerable leniency for indicating your plea of guilty at an early stage, for the utilitarian value of saving the community the time and cost of disputed hearings, and for saving the inconvenience and possible stress for Mr Gulenc and others at your former employment of having to come to court to give evidence.

33You have, through your pleas of guilty, accepted responsibility for your offending.  Finally I accept that your plea of guilty reflects some degree of remorse by you, but in my view your remorse overall is more in the nature of regret for the position into which you have placed yourself and your son, and not sufficient to consider putting aside even a small amount per week towards repayment of what you stole.

34You will receive significant leniency for pleading guilty in the circumstances you have, and I shall tell you what your sentence would have been had you not done so after I announce details of the sentence I have decided upon.

35I turn now to your personal circumstances.  You are now aged 30.  You were raised in a stable family environment, but I am told that you describe yourself as "not one of the cool kids" at primary school, and then you took up with the wrong friends and in your early teens, started using cannabis.  You apparently struggled in your teenage years, and left school at the end of Year 10, although you are said to have had the intelligence to continue at school.

36You were apparently taken to see a psychologist during your early teenage years, but I was told that your parents were not told of the findings and that you ceased attending. It is now conjectured that your behavioural problems at that stage may have been a reflection of your use of cannabis, and also you have now been diagnosed with personality disorders which may well have existed since that time.

37You are said, as I have said, to be intelligent, but you have not undertaken further education since leaving school early, and I am told have struggled to obtain satisfactory employment.  You apparently aspire to work in psychology but recognise that you may not be able to pursue such a career. You have almost certainly lost the chance of a career in bookkeeping or accounting type employment after this current offending.

38I am told that you have taken various addictive drugs over the years, including continuing to use cannabis. 

39You were in a relationship with Steve, with whom you had a child, born in April 2010.  You say that it was in this relationship and after your baby was born that you were introduced to use of Ice, which you had not previously used despite having used other amphetamines and other drugs and cannabis. That relationship broke up only months later, and in January 2011 there was a parenting plan agreed between you by which parenting was to be shared, although with a very young child it would be assumed he would spend more time with you, and over the years he has mainly lived with you.  He has stayed and spent time with his father, but not as often or regularly as you would have liked.

40You have been in a relationship for about the last two and a half years with your current partner, who I am told maintains full time work. He only came to court on the last occasion when work permitted, although I see he is here again today.  There is a personal reference from his mother who speaks highly of you.

41You have not had employment yourself since losing your job at Straight Line Excavations.  You have been on Centrelink and child support payments. Your son's father has fallen into arrears in making payments and ceased in August as he apparently hurt his back and is on WorkCover.

42Your son is now age six, and I accept is a very important part of your life.  He started school this year and I am told has been showing behavioural problems.

43Since your case started before me some months ago, I have been told that the Department of Health and Human Services had taken an interest from early in the year because of some marks on your child.  You say these were inflicted through discipline by his father.  I have no evidence about the precise reasons that DHHS took an interest, so I make no finding about whether that was due to any actions by your son's father or ‑ ‑ ‑

44OFFENDER:  That was reported in 2013.  That was reported to DHS ‑ ‑ ‑

45HER HONOUR:  All right.  Or whether it was due to you telling ‑ ‑ ‑

46OFFENDER:  I did not - I would never hit him.

47HER HONOUR:  Ms Stevens, I will pause while you collect yourself and sit down.

48OFFENDER:  I would never hit him.  I never hit my son.  I would not hit my son.  I never hit him.

49HER HONOUR:  Ms Stevens, I am not suggesting ‑ ‑ ‑

50OFFENDER:  That was his father.

51HER HONOUR:  I am not suggesting for a moment that you hit your son.  The rest of the - I will just pause.  Sit down and take a deep breath and collect yourself for a couple of moments.  Ms Stevens, do you feel able to keep listening to what I have to say?

52OFFENDER:  Yes, Your Honour.

53HER HONOUR:  All right.  I am not suggesting by what I have just said that there is any allegation that you hit or directly harmed your son.  What the rest of what I was going to say was, is that I am not in a position through not having evidence about why the Department of Human Services intervened, to decide whether it was due to any reported harm from your child's father or due to the matter - of which you have apparently told a reporter in July of this year - that it was because of your drug abuse.

54I am told that the Department of Health and Human Services has decided not to take any further action in relation to your child, at least at the stage they made that decision this year.

55What is of concern are the ongoing problems with your son's behaviour in his first year of school.  I was told that there were such problems some months ago, but last week was provided with a letter from the principal and class room teacher at his primary school. It sets out a concerning list of behaviours ranging from those affecting him personally such as losing concentration and not completing tasks, struggling to be motivated to work on his own and requiring constant attention and prompting, to ignoring instructions from his teacher and principal. However they progress to impacting others including throwing heavy objects around the classroom, becoming aggressive towards other students and staff, and running out of the school grounds and needing staff to chase him for his safety.

56He has been suspended for his aggressive and unsafe behaviour, which I am told would have been for the rest of the day on which such behaviour occurred, but it had occurred on more than one occasion.

57Obviously for his own sake, for his educational progression, his own safety and the safety of other students and staff, all of these matters are of concern and do need attention.

58The letter I have indicates that the school has involved you closely in addressing these behavioural problems, and that you have been proactive in continuing to engage in services and to work with the school to eliminate his behavioural difficulties. You have accepted the school's recommendations and have been spending a great deal of time at the school for this purpose. I was told by your counsel, and provided with documentation that shows, that you have applied for a Volunteer Working with Children check because of spending so much time at the school.

59Your parents have lived interstate for some years.  They both travelled to Melbourne to support you from the beginning of the hearing of this case, and on subsequent occasions one or the other has been present again to support you. Your mother is here today.  I was told that the news of this offending has devastated your family and I accept that it comes in a family that has not otherwise had members involved in criminal behaviour of this type.

60I accept that both of your parents have maintained their support for you, even to the extent that your father apparently accompanied you for an interview with the community corrections officer you saw last month.

61Having commenced using cannabis in your early teens, you have apparently continued to use it.  Your use of crystal methylamphetamine was able to be supressed for some time after your prior offending, that is from 2010, but once you had access to the money you were stealing from your employer, you resumed and increased its use. Apparently you have always smoked and not injected it, but you resumed and increased its use during the period of your employment, although I am told you ceased in December of last year.

62When your plea hearing started before me in May of this year, there had been inquiries made but not real application by you to address your underlying problems - with drugs in particular.

63In January of this year, you had asked your general practitioner for a mental health care plan and were referred to a psychologist, Ms Jackson.  Among the medical history you gave Ms Jackson was that you have a history of problems with sleep and diet, especially when anxious. You described your mental health as never having been good, and that you have never really been happy in life.  You recall being taken at age 14 to a mental health service but your mother having refused to have you admitted. You were smoking a lot of cannabis at the time and in retrospect, you think that could have been the cause of your symptoms.

64You say that you have had a lot of counselling over the years but have had problems engaging with practitioners and often lied in those sessions to minimise your symptoms.

65You told Ms Jackson, your previous general practitioner, that had diagnosed you with anxiety and depression, one to two years previously, and prescribed Xanax but that you had started misusing that drug. You also reported two suicide attempts; one about Year 10 at school in response to bullying and one earlier this year when you took multiple Valium tablets after being charged with these offences.

66There is no independent medical information to support the information about what you had previously been prescribed, what previous diagnosis had been made nor as to any suicide attempt.

67You told Ms Jackson that you were using methylamphetamine and becoming reliant on cannabis to counteract their stimulant effects while you were working, and that you maintained that up until when you lost your job in July 2015 which you attributed to the impact of your drug use.

68You told the Community Corrections officer who assessed you last month that you were still using cannabis and did not appear to that assessor to see any harm in doing so, although you said you had ceased using Ice. I note that with Mr Gleeson's counselling which I will come to mention shortly, you may have now recognised the need to reduce then eliminate cannabis use also.

69In the past, you apparently indulged in binge drinking of alcohol, but replaced alcohol with drugs and no longer drink on a regular basis.  You told Ms Jackson that you had no drug or alcohol treatment, although there were clearly conditions for that on your 2010 Community Based Order.

70You told Ms Jackson that you started gambling in 2015 when using methylamphetamines on a daily basis, and you became bored and restless and were typically visiting pokie venues in hotels most days, when you could spend up to $2000.  You told the community corrections officer assessing you that you lost some $40,000 in pokie machines during the period you were employed.

71The psychological report of Ms Jackson does not contain a diagnosis of any mental health conditions suffered by you, although she does describe you as an anxious young woman.  You appear to her to be of normal intelligence although not formally tested.  You were very focused on the difficulties that you have experienced while growing up and the impact that this has had on your family relationships. Ms Jackson's opinion was that you fit a diagnostic criteria for borderline personality disorder with symptoms that include instability in your relationships, identity disturbance, impulsivity with a history of substance abuse, and mood instability.

72It was considered that with no long term or consistent psychological or psychiatric treatment, you had relied on drugs to manage your clinical symptoms.  You also fitted diagnostic criteria for a substance abuse disorder that had included chronic cannabis and methylamphetamine abuse, and that it was still current when you saw Ms Jackson. At that stage, you had had no formal treatment for substance abuse. Ms Jackson also considered there to be a link between problematic gambling, drug problems along with your mental health problems, although there was no separate diagnosis of a mental health condition.

73It was recommended that you be referred to drug treatment services for specialised assistance, and mental health support which was felt to be integral to your rehabilitation, along with participation in the Gamblers Anonymous program to address your history of gambling.

74I was told that under a health care plan from your former GP, you consulted a psychologist, Ms Patti, but ceased in February when the Medicare allocation for sessions ran out.  I do not have any more details about what that counselling involved.

75I was told on 22 June - one of the dates for hearing in this matter - that you had also called Lifeline in the last couple of weeks before that hearing.

76You have consulted, but not until recently engaged with, drug rehabilitation services.  Last August, you emailed a service in Broome which is where your parents were living at the time, but you did not move to Broome or attend there. I was told that in March of this year, you spoke to someone at Odyssey House but were told to return after you knew the outcome of your court case. On 22 June, when the matter came on for further plea hearing, I was advised that in May you had called ReGen and obtained an appointment for 19 May, and attended and it had been suggested there that you attend a group meeting for Crystal Meth Anonymous, however as the only meeting you could find was a long way from home, you could not manage to do that.

77At last week's resumed hearing, your counsel informed me that you had tried to start a local support group in your area of CMA, that is “Crystal Meth Anonymous”.  He subsequently forwarded, and I have read and has tendered as an exhibit this morning - an article in the Brimbank and Northwest Star of 12 July this year, in which you were interviewed about this. You are reported as saying you were a recovering Ice addict who had an addiction that had cost about $1000 a week, now facing gaol time linked to your Ice addiction. You were reported as saying that you had first used the drug in 2010 when your child was about six months old, and it made you feel awake, but everything was destroyed by Ice.  You had lost friends and all your family, your job, almost your son as DHS were going to take him from you, and that you had lost your teeth and spent thousands of dollars getting your teeth fixed. You said that you had not used this drug since December 2015, but lived with the daily temptation to return to old habits, and you hoped that a support group would assist you and others.

78I accept that in attempting to start that support group, your aim was to assist other people addicted to ice as well as yourself.  But if you have been correctly reported, you have not acknowledged that you are facing gaol in this case not primarily because of your misuse of the drug Ice, but because on the second day at a new job, you started stealing from your employer.

79OFFENDER:  He said I could not write that.

80HIS HONOUR:  And continued to do so over the following months at increasing rates. If some of that money went to buy Ice, which I have no reason to disbelieve as you say happened, and led to the increase of your Ice use, there is a connection, but it was not abuse of this drug that started your offending.

81I have been told by your counsel that the local publicity from that article backfired because neighbours reacted against you having a meeting of drug abusers where you were living.  It is unfortunate if that destroyed the prospects of such a group getting established and perhaps another attempt could be made with meetings on non-residential premises.  Often institutional or charitable ones are used for groups such as Alcoholics Anonymous or similar support groups.

82Last week I was told and provided with reports confirming that over the last three months you have sought to engage more promisingly with drug counselling.  You presented for comprehensive alcohol and other drugs assessment at Sunbury Community Health, on 19 June.  You describe your presenting history as of methamphetamine dependence and problematic gambling, reporting ceasing use of methylamphetamine last December but continued use in a dependent manner of cannabis.  Assessment led to treatment planning to develop relapse prevention strategies in relation to both methylamphetamine and to reduce your use of cannabis.

83You have engaged on six occasions in such a program between 11 July and
8 September, attending approximately weekly, and have apparently engaged well in that treatment with a counsellor, Mr Matt Gleeson. I am told you have found this counselling particularly helpful, and that you hope if you are permitted to remain in the community, to continue your treatment there to address these issues.

84I accept that in the last three months you have shown some real commitment through regular attendance at this counselling, on top of the attempt to establish a support group although it failed, to address your problems with both methylamphetamine and cannabis.  I am also of the view that addressing those drug addictions would assist in addressing other addictive behaviour by you including the gambling. Perhaps, although no one specifically has given expert opinion on it, some of the regularity of the offending once you started, can be traced to some addictive traits in your personality.

85I recognise that to interrupt what seems to be your most positive engagement with a drug counsellor is not ideal, and potentially could undermine the recent progress you have made.  However, this late engagement with drug rehabilitation services cannot in my view, of itself, override all other sentencing considerations.

86Finally, in July you attended a consultant psychiatrist, Dr Irina Kolesnikova for opinion and psychiatric assessment.  This was on referral from your general practitioner.

87Dr Kolesnikova noted your personal circumstances including that you were worried that if you went to prison for theft, your son would be likely to be sent to stay with his father whom you believe is unable to parent him due to his own problems. It was noted that you have one older sister who, like your parents, lives in Queensland. You gave a long history of unstable mood and suicidal thoughts and behaviour starting from age 11 with a suicide attempt apparently unsuccessful at that stage.

88You have given a history of other trauma in your early teenage years, feeling dysfunctional and disorganised and then leaving school at the end of Year 10 and never able to return to school. You said that suicidal thoughts stayed at the back of your mind but you had not acted on them.  You were apparently taken to hospital by your parents in May of this year due to stress and anger outbursts in which you started smashing things in the home.

89You gave Dr Kolesnikova a history of your extensive use of various substances, having had a severe addiction to Ice, claiming to have stopped that in December last year, and that you also drank heavily as a teenager.  You had problems relating to ongoing use of cannabis and were unable to quit. She reports that you were currently seeing a psychologist for support but still going through a lot of difficulties.  You presented as tearful and stressed, and expressed worries about separation from your son, or if he would be removed from your care, and you were anxious in your affect and mood.

90Dr Kolesnikova noted that you had an anger management problem, erratic behaviour, poly substance abuse, risk taking behaviour and noted the current charges.  Her opinion was that you presented with what she believed were complex personality disorders including borderline and perhaps anti-social personality traits. She believed these had developed from your childhood and noted you had started stealing from your parents. She considered you would require support when facing court, and noted that it is not her area of expertise, and suggested that you be started on anti-depressants or a small dose of Seroquel.  She also recommended that you continue seeing your psychologist.

91I am told that your general practitioner has indeed prescribed Seroquel, that you have been taking as suggested by Dr Kolesnikova.  This has replaced the Valium I was told was prescribed in previous years.

92I was told on the other hand, that psychology sessions ceased early in the year because you could not get further Medicare paid sessions under the present healthcare plan, and could not otherwise afford to attend.

93It was conceded on your behalf that from a legal perspective, neither the reports and opinions of Ms Jackson nor of Dr Kolesnikova diagnose any mental health condition of a nature that would enliven principles known to lawyers as those in Verdins case.  Had they applied, they might have required me to modify the application of some sentencing principles.  In your case I recognise that there are personality disorders that have been diagnosed, but they do not activate these principles.

94I accept that over the last two to three months, you have taken some very positive and productive steps to address some of the problems which appear to have been features of your life since your early teenage years. The most promising is your engagement since July with Mr Gleeson in alcohol and drug counselling.  I am told you have also attended an anger management program, the need for which arose out of your behaviour causing your parents to take you to hospital in May. Anger management is not a feature of the offending for which I sentence you, but obviously it has been causing problems in your life, and in particular as you have a young child it is to your credit that you have seen fit to address it as a problem.

95I note that although you have not been diagnosed with mental health conditions as opposed to personality disorders, there have been recommendations that you attend for psychological counselling, but that has not occurred, or ceased at the beginning of the year, due to lack of funding.

96I accept that the steps you have taken recently do indicate some prospects that with real commitment, you can rehabilitate yourself, and at the age of 30 it is still well within your grasp to do so. 

97I take into account the personal references that were provided as to how people close to you find you, and I accept that you are seen as a loving and caring mother.  I am not convinced that those reports acknowledged the extent of the offending that has been described to me, nor the extent of the underlying problems that have apparently dogged your behaviour over many years, including the drug abuse and the personality disturbances.

98I accept that you are genuinely very worried and upset about what might happen to your son if you are imprisoned.  Not only is his father not a constant part of his daily life, but the fact that your son is demonstrating his own behavioural problems in his first year of school is a further concern. I accept that over the last two to three months, you have been working hard with those at his school to try to address and improve his behaviour. I have no information as to whether his living with his father is feasible.  I accept that you do not think it is.  I am aware that you have responsible parents and a sister, who although they live interstate, might be thought to be possible carers for your son while you are in prison.

99It was not suggested in submissions through your counsel that the impact of imprisonment on your son reaches that exceptional level of hardship which the law requires before the impact on family members of imprisonment can be taken as mitigatory. Taking into account Court of Appeal and other court decisions on this matter, I do not overlook that there will be hardship on your son - real hardship.  But as courts repeatedly point out, there is often considerable hardship on the family of persons who commit offences for which they are ultimately imprisoned.

100What I do take into account in some mitigation of your sentence, is that what I accept as likely to be real worry and concern for him by you, which will impact heavily on you, and make your time in prison more onerous than if you had not had that particular concern.

101As I have said, I accept that you have made some positive moves recently towards addressing your problems.  In the long term, that will require commitment by you to continue with similar counselling or similar programs as you have started with Mr Gleeson at Sunbury Health, and it is of course in your son's interests that you not only get to a point of ceasing use of illicit drugs, but that you also address what I am told are anger management problems as well as personality disorder problems.

102In the long term, your rehabilitation would not only be to your own and your son's and the rest of your family's benefit, but also to the benefit of the community in general, and I have taken that into account in terms of the duration of a period of imprisonment that I intend to impose, so as not to totally crush your motivation to continue with rehabilitation programs and services.

103Some months ago, I requested an in-depth report on your suitability for a Community Corrections Order.  That report was delayed as you did not notify that you had moved address and then were reluctant to answer telephone calls from that service.  Nevertheless you have been assessed and I have read that report.  I note that there are some qualifications, but overall you have been assessed as suitable for such an order and there are recommendations which are mainly to the effect that you continue in the programs you were undertaking by the time you were assessed for that report.

104I was urged by your counsel to sentence you to a Community Corrections Order, which in addition to promoting the rehabilitation steps which you have started, even if relatively late, could also address the need for just punishment and general and specific deterrence through unpaid community work.

105I do not overlook that you have in the last couple of months apparently recognised some need to apply yourself to address your addictive behaviours, especially your use of methylamphetamine and cannabis as well but also the gambling.  I have taken into account the principles outlined in Boulton's case, as to the potential of Community Corrections Orders as a sentencing option to address cases which previously would almost invariably have required imprisonment.

106However, taken with the whole of your history and the relatively late commencement of your engagement in rehabilitation services, while those are positive and promising as indicating a start for your future rehabilitation prospects, in my view overall they have come too late to outweigh the need for just punishment and general and specific deterrence for offending as serious as yours was.

107In my view, no sentence which does not involve some imprisonment would be adequate to achieve just punishment or of sufficient ‑ ‑ ‑

108OFFENDER:  Please do not take my baby away from me.  Please.

109HER HONOUR: ‑ ‑ ‑ deterrent to you and particularly others ‑ ‑ ‑

110OFFENDER:  Please.

111HER HONOUR: ‑ ‑ ‑ that thefts of this overall seriousness will attract serious punishment.  I will just wait a few moments for you to collect yourself.  Are you able to ‑ ‑ ‑

112OFFENDER:  Please do not take him away from me.  Please.  His dad is (indistinct words).  Do not take him away from me please.  Do not take him (indistinct words), do not take him away.  He is all I have got.  Please do not take him away.

113HER HONOUR:  Are you able to let me proceed - to listen if I proceed, Ms Stevens or do you want a break?

114OFFENDER:  Sorry, Your Honour.

115HER HONOUR:  I do not have much more to say.  I will continue then.

116As I have just said, in my view, no sentence which does not involve imprisonment would be able to achieve the sentencing principles of just punishment or be a sufficient deterrent to you and particularly to others. Thefts of this overall seriousness will attract serious punishment.

117However, in my view, that message can adequately be achieved in your circumstances by an initial period of imprisonment of relatively short duration, followed by a much longer period under the supervision of Community Corrections officers, and with treatment and rehabilitative programs.

118The structure of the sentence is more complex than I would have liked, but I take the Court of Appeal's decision in Felton's case to preclude me from imposing an aggregate sentence on some or all of these charges as each is a rolled up charge.  I therefore must impose a separate sentence on each charge, although many will be served concurrently.  That means overlap.

119Would you stand up now please?

120OFFENDER:  I am so scared.

121HER HONOUR:  Fiona Stevens, on each of the charges, you are convicted and sentenced as follows:

122On Charge 6, which was theft of $76,000-odd in June, three months imprisonment to be followed by a Community Corrections Order - all right, I will pause.  Take a seat, Ms Stevens.

123OFFENDER:  No, do not take my baby.  I need my baby.  I need him.  I am doing the best I (indistinct words). 

124HER HONOUR:  Mr Miller, do you want to approach your client and see if she needs a break?

125MR MILLER:  Thank you.

126HER HONOUR:  I can stand the court down.

127MR MILLER:  Thank you.

128HER HONOUR:  It is the details of the sentence and I have to obviously make sure she is in a state to be able to hear this.

129OFFENDER:  I need my, I need my baby.  Please, his dad is going to destroy him.

130MR MILLER:  Thank you, Your Honour.  If we could have a five minute break?

131HER HONOUR:  I know it protracts the stress as the whole process does.  What I will do is stand the court down for five minutes.  It might - I think there is a room just behind - perhaps if Ms Stevens went there and was alone for a few minutes to collect herself would be the best idea.  She can obviously have a paper cup of water and tissues if she needs.  I will stand the court down for five minutes and see if she is able to resume at that stage.

132MR MILLER:  Thank you, Your Honour.

133HER HONOUR:  If you could take Ms Stevens just into the - remove her from the court please.  Ms Stevens, would you please accompany the officer just to the private area behind the dock.

134OFFENDER:  Please do not separate us, I am begging you, please.  I am begging you.

135HER HONOUR:  Ms Stevens, would you please just leave for a few minutes and try to collect yourself.

136OFFENDER:  My baby.

137HER HONOUR:  I understand this is very upsetting for everybody concerned, but I will stand the court down for five minutes.  If Ms Stevens needs - if the officer comes back in, a chair, a cup of water and the tissues can all be back there for her.  I will stand the court down for five minutes and wait nearby to hear if we are able to proceed.

138(Short adjournment.)

139HER HONOUR:  All right.  Ms Stevens, are you able to proceed?

140OFFENDER:  Yes, Your Honour.  Sorry.

141HER HONOUR:  I had got to the point of imposing the sentences I have decided on, on each of the charges.  I had said but I repeat:

142On each of the charges, you are convicted and sentenced as follows:

143On Charge 6, theft of $76,116 in June 2015, 3 months' imprisonment to be followed by Community Corrections Order to commence on the date of your release from prison, and to last for two years with conditions of supervision, assessment and treatment as directed for drug abuse including testing, for mental health issues and offending behaviour programs.  There will also be a condition of judicial monitoring and the first date for that I will fix for approximately three months from your release from prison.  I will come back to that date shortly.  I think the nearest Friday would be 17 March at 9.30 am.

144On Charge 7, for theft of $48,229 in July, I impose a sentence of 2 months' imprisonment which I direct be served wholly concurrently with the sentence imposed on Charge 6.

145On Charge 1, theft of $1073 in January, a Community Corrections Order to commence on your release from prison and to last for two months, the only condition being supervision.

146On Charge 2, theft of $1,826 in February, a Community Corrections Order to commence on your release from prison to last for two months with a condition of supervision.

147On Charge 3, theft of $6,177 in March, a Community Corrections Order to commence on your release from prison and to last for 4 months, including conditions of supervision, 10 hours of unpaid community work, assessment and treatment for drug abuse, mental health conditions and programs to reduce offending behaviour.

148On Charge 4, theft of $10,290 in April, a CCO to commence on your release from prison and to last six months with conditions of supervision, 10 hours of unpaid community work and assessment and treatment for drug abuse, mental health conditions and programs to reduce offending behaviour and judicial monitoring.

149On Charge 5, theft of $28,460 in May 2015, a Community Corrections Order to commence on your release from prison, to last for 12 months with conditions of supervision, 40 hours of unpaid community work, assessment and treatment as directed for drug abuse including testing, mental health issues and programs to reduce the risk of reoffending.  There will also be judicial monitoring as a condition on this CCO, again, three months after your release from prison.

150For clarity, I direct that the Community Corrections Orders imposed on Charges 1-6 inclusive all be served concurrently except for the conditions for unpaid community work which are to be cumulative and amount in total, the most to be over the 12 month period, a total of 60 hours.

151The total effective sentence is therefore 3 months' imprisonment to be followed by Community Corrections Orders totalling 2 years duration which I have staggered in duration.  So compliance with each Community Corrections Order will extinguish your sentences on a cascading basis.

152I have said what the conditions on each of those are.  In addition to the conditions on each community corrections order, I must explain the usual terms which also apply.

153Those terms are, that within two working days of your release from prison, you must report at the nearest community corrections office to where you will be living.  That office will have to be clarified.  The one suggested in the report was ‑ ‑ ‑

154MR MILLER:  I am pretty sure it is Sunshine, Your Honour.

155HER HONOUR:  Sunshine.  The address will be available for you.  You will also be reminded of it obviously before you are released from prison.

156Other terms of all of the Community Corrections Orders are that you must advise Community Corrections officers within two clear working days of any change of address of where you are living or where you are working.

157You must obey all lawful instructions and directions of Community Corrections officers, and submit to visits at your home or attend where they require for supervision. You are not to leave the state of Victoria without prior permission of Community Corrections officers. Most importantly, you are to commit no further offences during the period of the Community Corrections Orders.

158Just to make clear, offences which potentially would breach the Community Corrections Orders include not only offences such as thefts or dishonesty, but also use of illicit drugs.  Those would be offences that would breach the community corrections orders.

159If you fail to comply with the conditions of the Community Corrections Orders or breach any of the terms, including by further offending, you can expect to have what are now called “contravention” proceedings brought against you.  That means that if you breach the Community Corrections Orders conditions or terms, the matter is likely to be brought back before the court, probably in front of me.

160A breach or contravention of a Community Corrections Order is in itself another offence which could be punished by up to 3 months' imprisonment.  If the Court finds that you have contravened a community corrections order, the options are to simply confirm the terms of the order, or to vary the terms which might include extending the duration or the conditions, or the Court may decide to cancel the Community Corrections Order and resentence you for the charges to which the CCO related. What the Court actually decides to do on such a hearing depends on a lot of circumstances including the nature and seriousness of the breach or breaches, how much of the CCO has been completed satisfactorily, and what your general circumstances are at the time. However it is important that you understand that for the whole duration of the CCOs which in your case will be a total of two years commencing after your release from prison, you will be under that supervision and the reason that I mention that I have ordered CCOs of different duration, is that once each is completed in duration, and if you have successfully completed it, it could never come up again for you to be resentenced on that particular offence.

161Now Ms Stevens, I must ask at this stage, do you understand the terms and conditions of the CCOs as I have explained them?

162OFFENDER:  Yes, Your Honour.

163HER HONOUR:  Do you agree to comply?

164OFFENDER:  Yes, Your Honour.

165HER HONOUR: All right. I state pursuant to s.6AAA of the Sentencing Act that if you had not pleaded guilty but been found guilty of the equivalent of these total charges after a trial, if all other circumstances had been the same, including as to your son, I would have sentenced you in total to 15 months imprisonment to be followed by a CCO to last for 18 months with conditions of supervision, rehabilitation and treatment.

166Now I just want to clarify, I think the only other order that was applied for - there was not a compensation order?

167MS MALOBABIC:  No, Your Honour, there was no compensation order.  There was only the DNA ‑ ‑ ‑

168HER HONOUR:  There was one for a forensic sample?

169MS MALOBABIC:  Yes.

170HER HONOUR:  Yes.  An application for a forensic sample to be taken from you has been made.  That would enable your DNA to be placed on the state's database.  The making of such an order is in my discretion.  All offences such as theft bring an offender potentially within the scope of such an order.

171I have considered the nature of your offending here which did not involve any risk that you would not be able to be identified.  In my view, in all the circumstances, the nature of your offending and other considerations do not warrant that it be made. I will not make an order for a forensic sample to be taken.

172MS MALOBABIC:  As Your Honour pleases.

173MR MILLER:  As Your Honour pleases.

174HER HONOUR:  Now Ms Stevens, take a seat.  The orders have to be formally produced and each of the CCOs, and unfortunately there will be six of them, have to be checked obviously by counsel and then you will be asked to sign and I will sign.  While that is occurring, I will permit if it is wished, that your family members can approach but not make physical contact with you if they want to speak with you.  But if you are too distressed, we will not have that occur.  Can we have the orders produced, please.

175OFFENDER:  (Indistinct words).  What have I done?  What have I done.

176HER HONOUR:  No, I said approach but ‑ ‑ ‑

177OFFENDER:  What have I done, what have I done?

178HER HONOUR:  Please ‑ ‑ ‑

179OFFENDER:  What have I done?  What have I done?  What have I done?  What have I done?  My baby.

180HER HONOUR:  I will ask that the CCOs be shown to counsel, to both counsel, to check that they embody what I think I have announced.  They do not have the charge number on them.  My associate has tabbed them for you.

181All right.  I want to raise this and Mr Miller, you may need to get your client's instructions on this.  In terms of custody management issues to place on the order, I was going to include reference to the Seroquel dose.

182MR MILLER:  Yes, please, Your Honour.

183HER HONOUR:  We can attach a copy of the doctor's letter if that is appropriate.

184MR MILLER:  Yes, thank you.

185HER HONOUR:  Now the other two drugs in that letter, I do not know if they are to be disclosed or not in that letter.  I am not sure whether they are of the same - one is said to be a nasal spray and I do not know if that is - do you want to get instructions on that?

186MR MILLER:  Thank you, if I could.

187HER HONOUR:  The other matter is this.  I will make what I think is an appropriate custody note.  I will not disclose on it unless it is with your client's wishes, that part of her underlying stress is separation from her child.

188MR MILLER:  Yes, I will get some instructions for that.  Thank you, Your Honour.  The other medications are not ones that she needs every day.  Seroquel is one that she does.

189HER HONOUR:  All right, so we will only put Seroquel there.  She will be assessed for general needs medically.

190MR MILLER:  It is appropriate that that notation be made about her underlying stress.

191HER HONOUR:  Yes.  What I will do is have my associate approach the dock - I need you to hear this Ms Stevens.  Ms Stevens, it is time for my associate to approach the dock and ask you to sign each of the Community Corrections Orders.  They have been checked by both sides’ counsel but I suggest you look through them and you said you have agreed to them and to comply, but I need you to check them and then sign where it indicates for you to sign and then I will sign them.

192OFFENDER:  Yes, Your Honour.

193HER HONOUR:  Take a seat again if you would like.  All right.  The Community Corrections Orders have been copied and there will be a copy for Ms Stevens.  I think she is allowed to take that with her.  There will be a copy for counsel on both sides and the order will be finalised as soon as I have left the court room.

194Ms Stevens, the total sentence is 3 months' imprisonment commencing today.  That means you will be out before Christmas, and from that day, the CCOs commence which in a combined sense, will last for two years.  Some of them are much shorter than that and will drop by the way as you satisfactorily complete them.  The overall time after you are out of prison is two years under supervision and with those conditions on community corrections orders.

195You will be back in front of me on 17 March next year for judicial monitoring which, as long as all is going well on your Community Corrections Order, will be very brief, and will simply be a matter of checking up how things are going.

196It is up to you from here on.  I know it has been a stressful time but I will ask that you now be removed from the court room and that brings this matter to an end.  But could you please take Ms Stevens first from the court room please.

197OFFENDER:  Do I get a cigarette at any point?

198VOICE (from body of the court):  I do not think so.

199HER HONOUR:  If you have personal items with you, I think they get brought to you downstairs.  Is it - if there is a bag of clothes - I do not know if there is.

200VOICE (from body of the court):  I have got her bag.

201(Offender removed.)

202HER HONOUR:  I will have the order formally completed as soon as we get downstairs, so that it follows Ms Stevens quickly and we forward it to both sides, counsel or solicitors, I am not sure.  Could we adjourn the court please until Monday 10.30.

‑ ‑ ‑