Director of Public Prosecutions v Struthers
[2013] VCC 1373
•14 October 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT WARRNAMBOOL
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BARRY STRUTHERS |
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JUDGE: | HIS HONOUR JUDGE MONTGOMERY | |
WHERE HELD: | Warrnambool | |
DATE OF HEARING: | 11 October 2013 | |
DATE OF SENTENCE: | 14 October 2013 | |
CASE MAY BE CITED AS: | DPP v Struthers | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1373 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr J. Lewis | Office of Public Prosecutions |
| For the Accused | Mr M. Turner | Melville, Orton & Lewis |
HIS HONOUR:
1 Barry Struthers, you have pleaded guilty to 14 charges of obtaining property by deception. The facts of the matter are set out in the Summary of the Prosecution Opening which is Exhibit 1 on the plea. It is not disputed by the defence. I will not repeat the facts therein set out together with the annexure. Any reader of these reasons can refer to that exhibit to place the sentence in its factual context.
2 Briefly put, between 1992 and 2000, you misappropriated funds in your position as a bookkeeper from 24 clients of your employer’s accountancy firm to the total of $281,321.97. The misappropriations were discovered by the accountancy firm some time in the year 2000. Subsequently, Supreme Court proceedings were commenced on 21 December 2000. Settlement was reached in the matter by the payment of a sum of $177,543.48 paid by you on 20 December 2005.
3 Your house was searched by police on 23 March 2001 and you were subsequently interviewed by the Hamilton Criminal Investigation Unit on 16 and 17 September 2004, where you made full and frank admissions. However, due to a misfiling or mislabelling of the police file, you were not charged until 19 September 2012. An audit of police files discovered your file. Apparently the investigating officer, I was told, after interviewing you went on leave because of a WorkCover issue. I was not told why a Supreme Court action was necessary for the funds to be recovered from you.
4 Obviously the delay in this matter in getting it to court was not your fault.
5 The prosecutor tendered two victim impact statements, I have read them and considered their contents and taken them into account.
6 Trying to set out the chronology in this matter makes sorry reading. As I said, Supreme Court proceedings were begun on 21 December 2000. The next day you got a letter from solicitors acting for the accountancy firm. You met with an auditor of the firm on 23 January 2001 and you were asked to provide all relevant information that you had in respect of the misappropriated funds. As I said, there was a search of your house on 23 March 2001. Some time in October 2001, a proper audit was done by the firm indicating that the amount of misappropriated funds was $208,319.48.
7 By the time of 2001, the police should have been aware of the fact that there was a Supreme Court action underway for your misappropriation of funds. They had searched your house and an audit report had been done. Given those facts, it is unclear to me why you were not interviewed until 2004. The police had a volume of material available to them. The prosecutor suggested it was because of the complexity of the investigation.
8 The prosecution submitted, after taking into account all your mitigatory factors but in particular the delay in this matter, that an appropriate sentence would be of between one and a half to two and a half years imprisonment, with some of it to be served immediately, the rest could be suspended. He agreed I could aggregate under s.9(1) of the Sentencing Act.
9 On your behalf, Mr Turner made a number of submissions. He set out your family background, you have a brother and two sisters. You went to Casterton High where you met your wife. You did Year 12 but did not complete it. In 1963 you became a clerk with the Postmaster-General in Hamilton and worked there until 1988, when you were approached by Mr Strutt from the accountancy firm who you knew through your cricketing activities and offered a job with the firm. You have lived in the same house in Hamilton for the last 45 years. You have two children. You have family support in court.
10 Apparently, Mr Turner tells me, that this all arose because, after the first year at the accountancy firm, you asked for a pay rise but you were told the partners of the firm thought you were being overpaid. You thus became aggrieved.
11 Since leaving the firm in the year 2000, you were unemployed for quite some period of time, then obtained a part time job as a funeral director until September 2011. Since then you have been retired on a pension.
12 Mr Turner told me that substantially the funds you obtained were used to purchase a share portfolio. He told me to take into account the fact that the funds were there to repay the amount when it was discovered. In the meantime, you have lived a modest lifestyle. He said that you told him once you started you did not know how to stop. You said, "I suppose it became a bit of compulsion." It was a matter of time, you thought, before you were discovered. You believed you would always be caught, you did not try to hide your assets.
13 A plea of guilty was entered in December 2012. Mr Turner put to me there were two aspects to your offending. One was for personal gain, the second was to move money around from one account to another to avoid detection. It was conceded that there was a level of planning in the manipulation of the accounts and that your offending was a significant breach of trust. However, he submitted when taking into account the mitigatory matters, I could consider a wholly suspended sentence. He referred me to a number of cases.
14 You have no criminal history and there has been no further offending. In respect of your life since then, you have told your counsel that it had gone on for a long time, it is like a suspended sentence, your life has been on hold.
15 Defence Exhibit S1 sets out your extensive community service including receiving an Australian Sports Medal in 2000 for services to cricket. That service stopped around the year 2000. You effectively withdrew from the community. You were ostracised by the community and since then have led a quiet, unassuming life, I was told. You have become lately involved in cricket again through your grandson's interest. You are a conservation volunteer.
16 Your offending has affected your capacity for work and certainly you would not expect to work as a bookkeeper again.
17 In summary, Mr Turner asked me to take into account the following factors:
(1)Your plea of guilty. Investigation of these matters is a complicated factor and pleading guilty you have saved the community the necessity of a jury trial. It is also an acceptance of responsibility by you for your actions.
(2) Your co-operation with police.
(3) The restitution you paid.
(4)Your age, you are now 68 and in good health. He said that at your age, incarceration would be more difficult than for a younger person.
(5) He heavily relied on the delay in the matter.
(6) He pointed out that you have no other criminal history.
18 Sentencing considerations. I have taken into account all of the submissions made, exhibits tendered and cases referred to by both parties, taking into account s.5(1) and (2) of the Sentencing Act.
19 General deterrence and the court's denunciation of your conduct are the important sentencing considerations here. You betrayed the trust of your employers and your community. At the time of these deceptions, you were an active member of the community, particularly in relation to voluntary work and activities in the cricketing community. However, as your deceptions reveal, you were leading a double life. You were using the money to purchase shares, that is building up an asset. You have been effectively ostracized by the community since your deceptions were discovered.
20 The court's duty is to send a message that persons in position of financial trust must not misappropriate funds for whatever reason. Such a message is invariably diluted when it takes 12 to 13 years for the crime to get to court. The initial delay between discovery and interview was lengthy, but the lack of action since interview is not only incomprehensible but scandalous. For the police to mislay or mislabel a file in the circumstances described weakens and compromises the administration of justice.
21 I accept that specific deterrence has a little role to play here because of your otherwise good record and non-offending since the discovery of these crimes. I accept that you have rehabilitated yourself.
22 I have made the appropriate discount for the plea of guilty on the basis it has a utilitarian factor and an acceptance of responsibility by yourself. I have taken into account your age, 68, the effect a custodial sentence would have upon an elderly person and your otherwise good character and taking into account your general background. You have no other criminal history, full restitution has been made. You made full and frank admissions and co-operated with the police.
23 The appeal courts have recognised that delay is a significant mitigating factor. Such delay gives the court an opportunity to gauge whether and how far an offender has progressed along the path to rehabilitation. In addition, the court has to consider the uncertainty and anxiety caused by the delay with respect to the prospect of punishment hanging over your head. In fixing a sentence here I have taken both those factors heavily into account.
24 In this case the delay was caused by what can only be described as the negligence of the Victoria Police. It was conceded by the prosecution such delay could lead to me considering a sentence which I could partially suspend. Without this delay, you would have faced a significant custodial sentence.
25 Under s.9(1) of the Sentencing Act, I am able to impose one sentence in respect of all of the charges, that is to aggregate, because in my view they are founded on the same facts or form part of a series of offences of the same or a similar character.
26 Weighing up all those matters as best I can and taking them all into account, I impose an aggregate sentence of 16 months' imprisonment. I suspend 14 months of the 16 months, which means you have two months to serve. I impose an operational period of 24 months, which means at the end of the two months for the remainder of those 24 months, if you were to commit an offence punishable by imprisonment, you come back before me and unless you show exceptional circumstances, you would do the rest of the time.
27 I have to fix a s.6AAA sentence, that is a sentence I would have imposed but for your plea of guilty. It is always an artificial operation but is even more so in a case like this where delay has played such a big factor. However, at law I am bound to state a s.6AAA sentence and, in the circumstances here, but for your plea of guilty, I would have sentenced you to a term of imprisonment of four years, with a non-parole period of two years.
28 Are there any other matters?
29 MR LEWIS: No, Your Honour.
30 HIS HONOUR: Mr Turner?
31 MR TURNER: No, Your Honour.
32 HIS HONOUR: Would you remove Mr Struthers please.
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