Director of Public Prosecutions v Tavoletti
[2023] VCC 1952
•25 October 2023 (Unrevised) 1 November 2023 (Revised)
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
Case No. CR-23-00883
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TERESA TAVOLETTI |
---
JUDGE: | HER HONOUR JUDGE MANOVA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 October 2023 (To Plead) | |
DATE OF SENTENCE: | 25 October 2023 (Unrevised) 1 November 2023 (Revised) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Tavoletti | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1952 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: One rolled-up charge of theft – position of trust – significant dishonesty – continued breach of trust – $1,698,583.61 stolen over 7 years – serious offending – bookkeeper – family business – gambling disorder – psychiatric condition – family hardship – PTSD and depression symptoms – Verdins principles – general deterrence of significance – denunciation – specific deterrence – delay in filing charges – earliest plea of guilty – full cooperation with authorities – serious impact on victims – significant remorse – elderly offender – no prior criminal history – positive prospects of rehabilitation – community corrections order not appropriate
Legislation Cited: Crimes Act 1958 (Vic), s74(1); Sentencing Act 1991 (Vic), ss5(4C), 6AAA, 44
Cases Cited:R v Grossi [2008] VSCA 51; Koch v The Queen [2011] VSCA 435; Watkins (a pseudonym) v The King [2023] VSCA 203; Bugmy v The Queen (2013) 249 CLR 571; Newton (a pseudonym) v The King [2023] VSCA 22; Sabbatucci v The Queen [2021] VSCA 340; DPP v Bulfin [1998] 4 VR 114; Boulton v The Queen [2014] VSCA 342; Dyason v The Queen [2015] VSCA 120; R v Verdins [2007] VSCA 62; Bellizia v The Queen [2016] VSCA 21; Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105; DPP v Hill (a pseudonym) [2023] VSCA 84; Kumova v R [2012] VSCA 212
Sentence: Sentenced to 42 months’ imprisonment with a non-parole period of 30 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms A McVean (Solicitor) | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms A Wong (Solicitor) | Victoria Legal Aid |
HER HONOUR:
Introduction
1Teresa Tavoletti, you have pleaded guilty to one rolled-up charge of theft, contrary to s74(1) of the Crimes Act 1958 (Vic), on Indictment P10179415 in respect of thefts committed by you between 16 October 2013 and 24 June 2020 representing 287 separate transactions on which cheques drawn by you on your employer’s account were paid into your personal account/s. The total sum of the transactions was $1,678,931.61. In addition, there were seven transactions of Electronic Funds Transfers (“EFT”) from your employer’s account, made by you to the Australian Taxation Office (“ATO”), in respect of your personal tax liability. The total of these was $19,652. The total sum of your theft was $1,698,583.61.
2The maximum penalty for this offence is 10 years.
3After the offending was detected, you repaid approximately $256,350 made up as follows:[1]
(a) $6350 personally by you made up by one lump sum payment of $5,000 together with $1,350 made up by 27 instalments of $50 per week; and
(b) approximately $250,000 under bankruptcy proceedings initiated by your victims. This sum constituted the net proceeds from the sale of your home and vehicle.
[1]Submissions made from the Bar table without supporting documents but uncontested by the prosecution
4An excellent plea was conducted on your behalf by Ms Wong and I have taken all of the submissions into account in arriving at the sentence which I will impose upon you.
Circumstances of offending
5The circumstances of your offending are set out in the Amended Summary of Prosecution Opening dated 18 October 2023 and tendered on your plea,[2] the contents of which were agreed by your counsel. I will briefly set out the pertinent facts below.
[2]Exhibit A – Agreed Amended Summary of Prosecution Opening for Plea dated 18 October 2023
6In 2005, your nephew Simon Tavoletti and his wife Cara Tavoletti set up a concreting and construction business, being OSL Concreting and Constructions Pty Ltd (“the company”). This was a small family-run business providing concrete slabs for suburban homes and builders. The company was run from an office in your nephew’s home in Carrum Downs.
7The company operated one account linked to a cheque book and also to electronic banking. Simon and Cara Tavoletti were the only signatories to that account (“the account”).
8Between March 2006 and June 2020, you worked as a self-employed bookkeeper trading with an Australian Business Number (“ABN”).
9In 2011, after recommendations from members of your family, Simon and Cara Tavoletti employed your services as the company’s bookkeeper. You worked in the company’s home office one day per week.
10As part of your general duties you were also solely responsible for the following:
(a) receiving creditor invoices, entering them into the company’s books and making payments by cheque or EFT;
(b) monitoring debtors and payments and recording payments into the company’s books using software entitled MYOB;
(c) reconciling bank statements for the account against the company’s books;
(d) managing payroll for employees and contractors; and
(e) maintaining the company accounting records and general ledger accounts.
11Despite engaging an external accountant to prepare annual financial statements, no audits of your financial management of the company’s accounts were ever undertaken during the period of your employment and in particular during the offending period.
Modus operandi
12Between 16 October 2013 and 24 June 2020, you wrote cheques on 287 occasions, forging the signature of Cara Tavoletti and depositing the cheques either into accounts held by you or into credit cards for which you were responsible.
13To avoid detection, the amounts nominated by you on the cheques were always random, not rounded sums. You recorded the payments as “expenses” in the company’s books, falsely nominating non-existent purchases from the company’s suppliers. To avoid arousing suspicion, you nominated different suppliers in the company’s books of account.
14In 2013, when you began offending, six cheques were written by you in three months totalling $33,653.29. Over the years, the number of cheques written by you escalated.
15From October 2018, you began making payments to the ATO in respect of your own GST obligations. You told Cara Tavoletti that you needed to make a payment to a creditor of the company, and she provided you with her security token and login. You then used that information on seven separate occasions to make direct deposits to the ATO in respect of your personal tax liability.
Detection of offending
16Your offending was detected in August 2020 when a bank officer noticed a discrepancy between the appearance of a signature you had forged on a cheque and the original signature provided by Cara Tavoletti to the bank.
17The bank officer then contacted Cara Tavoletti to query the transaction, alerting her to the issue. Cara Tavoletti told the bank officer she had not written a cheque in years, but that you were their bookkeeper and a trusted member of the family. She then found the cheque book and discovered that many cheques had been written from the back of the cheque book.
18To your credit, when Cara Tavoletti confronted you, you admitted what you had done and provided an explanation for your actions, namely that you had done it to support a gambling addiction.
19Your counsel tendered a letter of apology which you wrote to the victims.[3] That letter is undated. In it you make reference to repayment by you of $5,000 to the victims. You also provided an undertaking to make further payments of $50 per week and your preparedness to “legally leave you my house upon my passing and have a legal document drawn and sent to you for your records”. Your counsel told the Court, and I accept, that the letter was sent in February 2021. This was uncontested by the prosecution.
[3]Part of Exhibit 2 – a 32 page bundle comprising various documents
20In June 2021, you made a statement to the solicitors of the company, making full admissions to the offending. That statement was used in bankruptcy proceedings against you, which resulted in the sale of your home in Epping and your 2016 model vehicle, the proceeds being applied to repay some of the stolen amount. That statement was tendered in evidence on your behalf.[4]
[4]Ibid
21No documentary evidence was provided to the Court confirming the amounts disbursed under the bankruptcy. Your statement dated June 2021 sets out that the mortgage over the property was then $302,000. I accept your counsel’s indication that the Epping property was sold for $570,000 and after payment of the mortgage, approximately $250,000 was available to be applied to the repayment.
22On 1 August 2021, the matter was reported to police.
23On 15 December 2021, you attended the police station and made full admissions. In addition, you told police that “I got along with them really good, they treated me like a mum”, “I did not think at the time” and “I knew that I was doing the wrong thing”.[5]
[5]Exhibit A at paragraph 38
Personal circumstances
24You are now 62 years old. I have taken your age into account in your favour in imposing sentence.
25You grew up in Sydney, the fifth of seven children. Your parents were from Italy, and you grew up being bullied at school on account of being of ethnic origin.
26Your childhood was marred by abuse in your family of origin.
27Your father was a gambler which caused marital strain between your parents.
28Your mother was a disciplinarian and would ‘pinch’ you as punishment. Your father also at times disciplined you and once tied you to a pole for stealing jelly. Your parents owned a fruit and vegetable shop where you worked on weekends and after school.
29You completed year 10 at Cromer High School.
30After high school, you attended a business school for accounting and bookkeeping and earned a Diploma in Bookkeeping.[6]
[6]Exhibit 3 – Defence Outline of Plea Submissions dated 18 October 2023
31You have a steady employment history, working in various office positions until you started your own business in 2009.
32You were married in 1985 at the age of 24. Your marriage was difficult and unhappy. There was domestic violence. Your husband was also a gambler and alcoholic. In 2001, your marriage ended. Your husband’s gambling caused financial strain and ultimately a bankruptcy.
33You have one daughter, Melissa Rettore, who gave evidence to the Court on your plea.
34Melissa Rettore is a primary school teacher and interior designer. She is married to Donato Rettore and they have one daughter, Gia, who is three years old. You have a close and loving bond with your daughter, granddaughter and son-in-law who are all supportive of you.
35Melissa Rettore told the Court about your unhappy marriage to her father and its impact on her. Melissa was 14 years old when you separated from her father. She had witnessed domestic violence, gambling and alcohol abuse in her childhood. You raised her as a single parent, working long hours to provide for both of you. In 2003, you purchased land and built a house in Epping and moved in with Melissa in 2005. That property was sold as part of the bankruptcy proceedings issued against you by your victims following the discovery of these offences.
36A psychological report dated 21 August 2023 by Carla Lechner[7] was tendered on your behalf. Its contents were uncontested by the prosecution. According to that report, in 2013 your daughter Melissa moved out of home, and your mother, who had lost her eyesight due to complications from diabetes, became very ill. These two events caused you to feel extremely alone, triggering thoughts associated with your childhood abuse. You began gambling online as a means of distracting yourself and this soon developed into a Gambling Disorder.[8]
[7]Exhibit 1 – Report of Carla Lechner dated 21 August 2023
[8]Exhibit 1 at page 2
37Your mother died in 2015. She and your father had been living together, and you began to visit your father on a weekly basis until he passed away in 2019. According to Ms Lechner, you were playing online ‘pokies’ for three to four hours per night as you had trouble sleeping; and experienced fear associated with your childhood. Ms Lechner refers to a history you provided of obtaining money on credit, transferring from your mortgage account to your credit account and spending between $1,000 and $2,000 per night.[9]
[9]Exhibit 1 at page 4
38The Prosecution opening outlines that:
(a) in 2013, you wrote 6 fraudulent cheques totalling $33,653.29;
(b) in 2014, you wrote 26 fraudulent cheques totalling $131,228.63;
(c) in 2015, you wrote 36 fraudulent cheques totalling $238,246.47;
(d) in 2016, you wrote 58 fraudulent cheques totalling $372,031.56;
(e) in 2017, you wrote 65 fraudulent cheques totalling $354,861.13; and
(f) in 2018, you wrote 50 fraudulent cheques totalling $294,915.75.
39In 2019 your father died. You continued to gamble and, in that year, you wrote 38 fraudulent cheques totalling $210,420.58.
40In August 2020, your offending was detected by chance. You had written $43,574.20 in fraudulent cheques in that year, which was the last year of your offending.
41Ms Lechner’s report records that you told her you took advantage of the free rein with the company finances your employer had given you. You told Ms Lechner that you were “shocked” to learn of the amount you had stolen and you “just didn’t think, [you] had no thought about it at all, [you] would just bank the cheque, [you] still don’t know why [you] did it”, and that “Cara had treated [you] like her mum”.[10]
[10]Exhibit 1 at page 6
42When your offending was discovered, you made full admissions. You eventually cooperated with your employer in the bankruptcy proceedings they issued against you, although I note that in your letter of apology you initially sought to keep your house and leave it to your victims upon your death.
43Ms Lechner diagnosed you with Adjustment Disorder with mixed anxiety and depressed mood, mostly attributable to the pending court hearing, but also in relation to life in general. Ms Lechner also considered that you had “undiagnosed Post Traumatic Stress Disorder” for most of your life. However, with therapy and treatment post-dating the offending, Ms Lechner noted that the “symptoms of Complex PTSD ... have lessened in their intensity” and you are “currently reporting a “mild” level of psychological distress and “moderate” level of depression, mostly referable to [the] pending Court hearing but long-standing in response to experiences of loss”.[11]
[11]Exhibit 1 at page 8
44Your daughter Melissa Rettore told the Court that you have been supporting her with the care of Gia while she works and that Gia has a very close and loving bond with you. Melissa is finding it hard to envision what life would be like if you are imprisoned and what it might do to your mental health. Melissa and her husband both work full-time, and you have been providing childcare, teaching Gia Italian and teaching her to cook. Although Melissa will continue to love and support you, she believes that if you were imprisoned it would be difficult for her and her family.
45Your son-in-law Donato Rettore provided a letter to the Court in which he described the close and loving bond you have with Gia and how shocking and shattering it has been to learn about your childhood and the crime you have committed.
46Other letters tendered on your behalf describe you as a loving, supportive and caring person. A number of the authors of those letters were present in Court to support you: your sister Rosetta Tavoletti, her daughter Garbriella Tavoletti, your daughter’s friends Eliza Svikulis and Mia Recorro, and your son-in-law Donato Tavoletti.
47One of your clients, Guy Rohan White, provided a letter to the Court in which he described you as being his bookkeeper and friend for the last 16 years. He was truly shocked to learn about the charges, but describes you as being “transparent about your wrongdoing and very remorseful, having paid back the money and being made bankrupt”. He considers that his business will be worse off without you continuing to work as his bookkeeper.[12] The submissions of your counsel refer to you continuing to work as a bookkeeper until this day.[13]
[12]Part of Exhibit 2 – undated letter of Guy Rohan White
[13]Exhibit 3 at paragraph 17
48Rachel Paterson from Gambler’s Help provided a letter to the Court dated 24 January 2023. In that letter, Ms Paterson confirms that you have been attending the “Peer Connection Program” since 24 August 2020 and that you have stopped gambling and been engaging with telephone calls with a peer support worker, initially on a weekly basis and more recently on a fortnightly basis.[14]
[14]Part of Exhibit 2 – letter of Rachel Paterson dated 24 January 2023
49Your friends Mark Funnell and Michele Perri both wrote letters to the Court describing their love, support and compassion for you.[15]
[15]Part of Exhibit 2 – letters of Mark William Funnell and Michele Perri, dated 28 September 2023 and 17 May 2023 respectively
50Your sister, Rosetta Tavoletti, also provided a letter to the Court. She described you as a person with strong family values and morals, aside from these offences. Your sister confirmed the issues you have raised about your childhood”.[16]
[16]Part of Exhibit 2 – letter of Rosetta Tavoletti dated 21 May 2023
51It is clear you have the love and support of a number of very important people in your life and this stands you in good stead to continue to rehabilitate yourself and to continue your recovery from your traumatic childhood.
Sentencing considerations
52The Sentencing Act 1991 (Vic) (“the Act”) provides that the only purposes for which sentences may be imposed are just punishment, deterrence (general and specific), rehabilitation, denunciation by the Court of the offending conduct, and protection of the community.
53In passing sentence, the Court must have regard to a range of matters including, in this case, the following: current sentencing practice, the nature and gravity of the offence, the offender’s culpability and degree of responsibility for the offence, the impact of the offence on any victim, the personal circumstances of any victim, the loss resulting directly from the offence, whether the offender pleaded guilty and the stage at which that occurred, the offender’s previous character, and the presence of any aggravating or mitigating factors.
Current sentencing practice
54I have had regard to current sentencing practice. In written and oral submissions, I was referred by your counsel and by the prosecution to a number of cases to which I have had regard. However, no two cases are exactly alike. There are always differences in the offending behaviour, the motivations for it, and the personal circumstances of the offender. My task is to sentence you for the crime you have committed in your unique circumstances. Later in these reasons for sentence, I refer to some of these cases.
The nature and gravity of the offence
55The maximum penalty for theft is ten years’ imprisonment. Theft is a dishonesty offence which can cover a wide range of conduct. The amount stolen ($1,698,583.61) by you is very substantial. There were 287 cheques with false signatures of your employer which you deposited into your accounts. In addition, there were seven EFT transactions applied to your personal tax liability which were facilitated by your lies to your employer.
56The prosecutor submitted that the offending is a very serious example of theft given the significant amount stolen, the long period of offending, and the offending occurring in the context of your position both as a bookkeeper and a member of the family. Your breach of trust as a family member was submitted to be an aggravating feature.
57Save for the further aggravating feature of breach of trust as a family member, I accept this submission. Your offending took place over 6 years and 8 months, which is a protracted and substantial period of time. Despite any symptoms of post-traumatic stress disorder (“PTSD”) you might have had during this time, the sheer number of transactions and the length of time over which you engaged in the conduct must mean there was a degree of choice which you continued to exercise as to how to finance your addiction to gambling.[17]
[17]R v Grossi [2008] VSCA 51 per Redlich JA at paragraph [52]
58The prosecution submitted that in assessing the objective seriousness of the offending, the amount involved (almost $1.7 million) is “of very great significance in determining the appropriate sentence … because the quantum provides some real measure of the loss and damage, both financial and psychological, caused to the victims of the frauds”.[18]
[18]Exhibit D – Prosecution Submissions on Sentence dated 20 October 2023 at paragraph 4, citing Koch v The Queen [2011] VSCA 435 per Maxwell P at paragraph [58]
59I accept that submission. You were a bookkeeper whose responsibility was management of the entirety of the company’s accounts. You must be taken to have been well aware of its financial position during the offending period and the impact your theft would have on the company’s financial position.
60Your conduct was premeditated, calculated, systematic and a gross breach of trust. Your counsel appropriately conceded that your offending was “self-evidently very serious”, that it was planned, that it had a degree of sophistication, and that you took steps to avoid detection. Significantly, a concession was made that there was a serious breach of trust.
61That breach of trust was put by your counsel on the basis of the employer/employee relationship rather than the family relationship between you and your victims. Your counsel referred the Court to the need to be satisfied beyond reasonable doubt of aggravating features of offending,[19] and I accept that submission. I have only treated as an aggravating feature of your offending the breach of the trust reposed in you as a bookkeeper of the business who was trusted to make payments on behalf of that business.
[19]Watkins (a pseudonym) v The King [2023] VSCA 203
Moral culpability
62Your counsel submitted, and the prosecution accepted, that your childhood was such that you have a background of deprivation, thus reducing your moral culpability.
63In particular, it was submitted on your behalf that your childhood experience of abuse moderated, in a general way, your moral culpability for the offending. It was said that “the deprivation is explanatory of the offending in that [your] gambling was a means of distracting [yourself] from PTSD symptoms, and the offending was motivated to satisfy the gambling addiction”.[20]
[20]Exhibit 3 at paragraphs 46 to 48 referring to Bugmy v The Queen (2013) 249 CLR 571 and Newton (a pseudonym) v The King [2023] VSCA 22
64The prosecution conceded that your moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred by abuse.[21]
[21]Exhibit D at paragraph 16
65I have taken into account in your favour the circumstances of deprivation put on your behalf.
66In determining the extent to which social disadvantage or deprivation warrants a reduction in moral culpability, the Court must make the assessment by reference to the nature and circumstances of the offence, the nature and severity of the disadvantage suffered, and whether the effects of the disadvantage can be seen to be explanatory of the offending.[22]
[22]Sabbatucci v The Queen [2021] VSCA 340 at paragraph [26]
67You were working out of the home office of your employer and would have had a very good understanding of the financial impact of your offending at the time you were engaging in that conduct.
68Ms Lechner’s report provides details about the abuse in your family of origin. The effects of the abuse in your childhood were bed-wetting and, in adulthood, symptoms of complex PTSD such as low self-esteem and negative self-image, hypervigilance, poor interpersonal trust and emotional dysregulation.[23]
[23]Exhibit 1 at page 4
69To your credit, despite the symptoms, you were able to complete your schooling and earn a Diploma in Bookkeeping. You were then able to manage to maintain a steady employment history, provide for your daughter financially after your marriage ended, buy land and build a house, and continue in employment. In her viva voce evidence, your daughter told the Court that you had worked full-time since she was three months old and that you always had her in “before school” and “after school” care. Your daughter described you as the “most responsible and strongest person I know, she taught me everything I know about money and how to do the right thing”.
70Ms Lechner’s report provides that after your mother’s illness and your daughter leaving home, you began to distract yourself from the symptoms by gambling. In this way it was said on your behalf that your moral culpability is not as high as a person without the disadvantages you suffered. I accept that submission and find that your moral culpability is less than it would otherwise have been had you not had those childhood experiences and subsequent symptoms.
71In terms of your gambling addiction itself, this was not relied upon as mitigation but rather as also being relevant to assessment of your moral culpability in the sense that you did not commit the offences to lead an extravagant lifestyle or to purchase luxury goods. I accept that your moral culpability would be higher if you committed the offences to purchase luxury goods.[24]
[24]R v Grossi [2008] VSCA 51 per Redlich JA at paragraph [57]
72On the evidence, you were not a problem gambler in 2013 when you first made the choice to begin gambling. Ms Lechner’s report refers to you drawing money on a credit card and transferring from your mortgage.
73Given your experience with your husband’s problem gambling and your experience with finances as a bookkeeper you must have been aware, before you began to steal from your employer, that you were heading into dangerous territory with your gambling. The decision to begin stealing and to continue for over six years means your moral culpability is still at the high end, though lower on account of the childhood factors and that you were not stealing in order to pursue a life of luxury.
74You have made such restitution as you have been able, and have cooperated with bankruptcy proceedings against you. You have also assisted the victims in their attempts to obtain compensation from the bank which honoured the cheques.
75The Court was informed that the bank has compensated the victims with payment of approximately $1,000,000. That is clearly a very substantial loss to the bank which is a direct result of your offending.
76Taking into account the restitution of approximately $256,350 thus far made by you and the sum received as compensation from the bank, that still leaves the victims with over $400,000 which have not been recovered. This is relevant to the Court’s assessment of your moral culpability.
77During the period of your theft, the resources of the company (which was described by Cara Tavoletti as a business run by a young family) were very significantly less than they otherwise would have been, and you would have known that.
78Overall, while your moral culpability for the offence is high, it is not as high as it would be had you not had the deprivation factors in your life and if you had stolen the money out of desire for luxury goods or lifestyle. I have taken these matters into account in your favour in imposing sentence.
General and specific deterrence
79The Court of Appeal has consistently said that general deterrence must be a prominent feature of the sentencing consideration in offences of this type. For persons contemplating stealing in a corporate setting and in a position of trust, a sentence which requires an offender to spend a substantial term in actual custody by virtue of the non-parole period fixed by a Court is much more likely to act as a deterrent.[25]
[25]DPP v Bulfin [1998] 4 VR 114, cited with approval in Dyason v The Queen [2015] VSCA 120 at paragraph [33]
80The prosecution submitted that general deterrence and denunciation are of paramount significance in the sentencing task for offences of this kind both in relation to the total effective sentence and the non-parole period.[26]
[26]Exhibit D at paragraph 7, referring to DPP v Bulfin [1998] 4 VR 114
81No submission was made to the Court by your counsel to the contrary.
82Further, no submission was made on your behalf that limb 3 of Verdins[27] was enlivened in your case which would have meant that you were not an appropriate vehicle for general deterrence.
[27] R v Verdins [2007] VSCA 62
83Accordingly, I accept the prosecution submission that general deterrence and denunciation are of paramount significance.
84The prosecution also relied on the Court of Appeal’s statement that specific deterrence does not feature as largely in the sentencing consideration, as white collar crime is usually committed by persons with no prior convictions and such persons usually have high prospects of rehabilitation.
85I accept that submission. It seems most unlikely you would have been able to be a bookkeeper and entrusted with the company funds if you were a person with convictions. Your demonstrated remorse and the steps you have taken to address the cause of your offending behaviour all point to high prospects of rehabilitation.
86However, given the long period of offending, which was only detected by chance, specific deterrence must still play some role in the sentencing task. The sentence passed must be a clear denunciation of your conduct and must involve an element of punishment. By your plea and the submissions made on your behalf, it is clear you are now aware of the seriousness of your conduct.
Impact on victims
87The prosecution read to the Court and tendered two victim impact statements.
88Cara Tavoletti’s victim impact statement is dated 14 July 2023.[28] It describes you as treating her like a daughter while stealing from her. She describes feelings of anxiety and guilt for failing to detect your deception. She describes her love for you as clouding her judgment. She describes having lost her ability to trust and the difficulty in recovering from the financial damage caused by your offending. She is broken-hearted and cries herself to sleep.
[28]Exhibit B – Victim Impact Statement of Cara Tavolleti dated 14 July 2023
89Simon Tavoletti’s victim impact statement is also dated 14 July 2023.[29] The statement describes the stress and depression he has experienced as a result of your offending. It has impacted on his entire family including his children. He is hurt by what you have done, he has had trouble sleeping due to financial stress, and has had to work long hours to try to recoup what he has lost.
[29]Exhibit C – Victim Impact Statement of Simon Tavolleti dated 14 July 2023
90The Crown opening sets out that the company you worked for was a small family-owned company which operated out of the Tavolettis’ home. You were given the job as bookkeeper of the company on recommendations from family. It operated out of the Tavolettis’ family home in Carrum Downs. On discovering that you had been writing company cheques to yourself, Cara Tavoletti told the bank employee that you, the company bookkeeper, were her aunt and a trusted member of the family.[30]
[30]Exhibit A at paragraphs 5, 11 and 34
91The victim impact statement clearly outlines to the Court the love and trust between you and your victims and the enormous impact your offending has had on them. It is clear that such impact on your victims is far greater on account of your position in the family and the love between you during the almost seven years of your theft from them.
92You did not steal from a faceless corporation. You stole a very significant sum of money from members of your own family while you worked in their home. Over a significant period of time, you engaged in serious dishonesty in order to fund your gambling addiction, and you did that to the detriment of people you say you loved and whom you treated like your own children. The offending has had a profound impact on Cara and Simon Tavoletti and has fractured your relationship with them.
Absence of prior criminal history
93You will be sentenced as a person with no prior criminal history.
94Your counsel appropriately conceded that the lack of prior criminal history is often the case in cases like yours where it would not be possible to obtain a position of trust without an unblemished record.[31]
[31] Belliziav The Queen [2016] VSCA 21 at paragraph [41]
95I also take into account in your favour the character references on your behalf, all of which describe a loving and caring person who has made valuable contributions to her family and friends.
Mitigation
Plea of guilty and remorse
96You cooperated with police, made full admissions, and consented to be committed to this Court by straight hand-up brief. The plea was conducted on your behalf on the first listing in this Court. You have facilitated the course of justice and have pleaded guilty at the first available opportunity.
97Your plea itself is evidence of remorse; however, in your case there is other evidence which establishes a degree of remorse over and above that usually associated with a guilty plea alone.
98Your conduct upon the discovery of the offending demonstrates genuine remorse; you cooperated with the company in the bankruptcy proceeding and in the proceeding in which they sought compensation from the bank. You also cooperated with police and prosecuting authorities. As stated earlier, you also made such restitution as you were able.
99You will receive the full benefit for your plea, which is of high utilitarian value, and which attracts a statutory discount.[32] It saves the community the expense of both a committal and a trial and saves your victims the trauma of participating in that process.
[32]Sentencing Act 1991 (Vic) (“the Act”), s6AAA
100The report of Ms Lechner describes you as being “deeply ashamed of your actions”.[33]
[33]Exhibit 1 at page 8
101Your daughter Melissa told the Court that when you first disclosed the offending to her, your mental state was such that she feared for your life. With therapy, you have been doing much better.
102The letters tendered to the Court on your behalf all allow a finding to be made that you are genuinely remorseful for your actions, ashamed of what you have done, and have made substantial inroads to addressing the causes of your offending behaviour both by attending specialised counselling and by attending “Gambler’s Help”.
Family hardship
103In her viva voce evidence to the Court, your daughter Melissa said she did not know how she and her family would manage while you were in prison, and what effect your imprisonment might have on your granddaughter Gia, with whom you have a close and loving bond.
104I accept that your daughter, son-in-law and your granddaughter would be unhappy that you have been imprisoned. I am not satisfied that your relationship with your granddaughter constitutes such exceptional circumstances that family hardship would be occasioned by your imprisonment such as to warrant any amelioration of your sentence.[34] Your counsel did not submit otherwise.
[34]Markovic v The Queen; Pantelic v The Queen [2010] VSCA 105 at paragraphs [7] to [11]
105I accept however, that your incarceration will be more burdensome on you because of the hardship experienced by your family, especially Gia, who will no doubt miss you and, because of her young age, lacks the capacity to understand the reasons for your imprisonment.[35] I have taken that burden into account in the sentence I will shortly pronounce.
[35]DPP v Hill (a pseudonym) [2023] VSCA 84
Psychiatric condition
106Relevant to this case and the submissions made by prosecution and your counsel, impaired mental functioning, whether temporary or permanent, is relevant to sentencing in the following ways:
(a) limb 5 of Verdins provides that the existence of the condition at the date of sentencing or its foreseeable recurrence may mean that a given sentence will weigh more heavily on you then it would on a person in normal health; and
(b) limb 6 of Verdins provides that where there is a serious risk of imprisonment having a significant adverse effect on your mental health, this will be a factor tending to mitigate punishment.
107It was submitted on your behalf, and the prosecution conceded, that these two limbs of Verdins, being limbs 5 and 6, apply in your case.
108Ms Lechner has diagnosed you with Gambling Disorder (in remission), Adjustment Disorder with mixed depression and anxiety, mostly referrable to your pending court hearing but also in relation to your life in general, and “symptoms of Complex PTSD that with therapy, have lessened in their intensity” such that you are now reporting a “moderate level of depression, mostly referable to your Court hearing but longstanding in response to experiences of loss”.
109Ms Lechner’s report does not address whether there is a serious risk of imprisonment having a significant adverse effect. I have mitigated your sentence on account of both limbs but given particular weight to limb 6 because of your pre-existing condition of complex PTSD or Symptoms of Complex PTSD and that such a term as I impose may weigh more heavily on you that a person without such a condition.
Delay
110Your counsel submitted that there has been a delay of two years and five months between the date your offending was detected and the date the charges were filed[36] through no fault of yours. The prospect of criminal charges has been hanging over your head over that time and you have used it wisely to address the causes of your offending behaviour.
[36]Exhibit 3 at paragraphs 50 to 52
111I accept that the prospect of criminal charges has been hanging over your head for that period of time and that you have been experiencing psychological distress and depression, mostly referable to that. I accept also that full weight should be given to the rehabilitation limb as you have undertaken rehabilitation during that period of time in the form of attending Gambler’s Help and specialised counselling.
112I accept that you were not responsible for the delay and that you made admissions and cooperated with police.
113The matters alleged against you are dishonesty matters involving fraudulent cheques and financial transactions over a long period of time. Such matters often take longer to investigate and for a brief of evidence to be collated and authorised.
114No evidence was led about the reasons for the delay, but, given the type of matter, I do not consider it inordinate or unduly long.
115Nevertheless, I have taken the delay into account as a mitigating factor. In particular, I have taken into account the fact that you have had depression and anxiety as a result of the uncertainty pending the laying of the charges, and also that you have been able to attend to your rehabilitation.
Consideration of a community correction order (“CCO”)
116Section 5(4C) of the Act provides that a Court must not impose a sentence that involves the confinement of an offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more conditions are attached.
117Your counsel submitted that “all purposes of sentencing can be achieved by a comparatively short period of incarceration followed by a CCO [tailored] to [your] circumstances … The maximum period of imprisonment that can be combined with a CCO is one year” and the CCO itself can be for a maximum term of five years.[37]
[37]Exhibit 3 and section 44 of the Act
118For reasons which I will state, I do not accept that submission.
119The prosecution submitted that having regard to all of the circumstances, a term of imprisonment with a head sentence and non-parole period is the only appropriate disposition in this case.
120I accept the prosecution submissions.
121This was very serious offending over a long period of time; it was deliberate and calculated, with repeated acts of dishonesty involving a substantial amount of money. Your position in the company enabled you to conceal and disguise your conduct which you successfully managed to do over many years. General deterrence carries a particular significance in cases of this kind.
122I have considered the submission strongly made on your behalf. In particular, I have considered whether the principles in the guideline judgment of the Court of Appeal in Boulton[38] would be applicable to the particular circumstances of your case, together with a term of imprisonment of one year or less.
[38] Boulton v The Queen [2014] VSCA 342
123I have considered what the Court of Appeal has said about how Boulton applies in a similar case of white collar crime involving a similar sum of money ($1.4 million) obtained by deception, which carries the same maximum term of imprisonment as theft.[39] In that case, the Court of Appeal said that:
“Given the nature of the offending, the amounts involved, and the duration over which the offending occurred, these offences were so serious that nothing short of a sentence wholly comprised of an immediate term of imprisonment would suffice to satisfy the requirements of just punishment and a CCO, either alone or in conjunction with a sentence of imprisonment (which [at that time] could not exceed two years), would not satisfy the requirements of just punishment in this case. This is because of the importance of general deterrence in cases of this kind.”[40]
[39]Dyason v The Queen [2015] VSCA 120 at paragraphs [40] to [43]
[40]Ibid at paragraph [45]
124I have taken into account all of the mitigatory matters put on your behalf and those conceded by the prosecution. However, I consider that a term of imprisonment higher than one year, which therefore precludes the imposition of a CCO, is the only appropriate disposition in this case.
125In fixing the non-parole period, I have taken into account the following matters:[41]
(a) the minimum period to be served by you because the crime calls for such detention;
(b) the need to incorporate an element of punishment for the offending;
(c) the need to deter others who might be minded to commit such offences;
(d) to a much lesser degree, the need to deter you from committing such offences in future, especially since your profession is a bookkeeper and you have continued to work as such after the offending was discovered; and
(e) the objective of general and specific deterrence should not be undermined by an unduly short non-parole period, especially in cases such as this.
[41]Kumova v R [2012] VSCA 212
126Taking all of the matters into account, including your personal circumstances and mitigatory matters, on charge 1 you will be convicted and sentenced to a term of imprisonment of three years and six months, and I direct that you serve a minimum of two years and six months before being eligible for parole.
s6AAA of the Act
127I have taken into account your plea of guilty and given you a discount on account of it. Had you been found guilty of this offence by a jury, I would have convicted and sentenced you to a term of five years and three months with a minimum non-parole period of three years and nine months.
128I direct that this statement, made in accordance with s6AAA of the Act, be entered into the records of the Court.
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129HER HONOUR: Ms Wong, are there any custody matters and issues?
130MS WONG: Yes, Your Honour, as indicated in the materials before the Court, Ms Tavoletti is receiving, does take anti-depressant medication.
131HER HONOUR: Yes, Avanza I understand, or mirtazapine?
132MS WONG: I think it was mirtazapine.
133HER HONOUR: Yes it's the same thing, yes.
134MS WONG: She also has some physical health issues that are also noted in the defence submissions.
135HER HONOUR: Yes a back problem, yes.
136MS WONG: Yes.
137HER HONOUR: My Associate will note that the prisoner is on Avanza/mirtazapine and has a back condition which requires to be assessed and attended to.
138MS WONG: As the Court pleases.
139HER HONOUR: Adjourn the Court.
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