Director of Public Prosecutions v Telios
[2013] VCC 975
•23 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No.
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PERICLIS TELIOS |
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JUDGE: | HER HONOUR JUDGE DOUGLAS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 23 July 2013 | |
CASE MAY BE CITED AS: | DPP v Telios | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 975 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms Russell | |
| For the Accused | Mr Thomas |
HER HONOUR:
1 Mr Telios, you have pleaded guilty to one charge of theft, namely, $224,008.48 from the Ward Avenue Kindergarten Association Incorporated, between the following dates: 1 February and 1 October 2012.
2 A schedule attached to the indictment sets out that you stole that sum over 104 occasions. That total sum which you stole was virtually all of the kindergarten funds. On 50 occasions between 1 February and 15 May 2012 you attended at various NAB branches and withdrew cash. The transactions varied from between $100 and $30,000. On 54 occasions between 28 May 2012 and 1 October 2012 you transferred $23,938.48 by online banking to your personal back account. Those transactions varied from between $50 and $3200.
3 A summary of the prosecution’s case was read aloud and tendered. I will annex that document to these sentencing remarks, as the details of the prosecution case are set out in that document comprehensively. And just pausing there, Madam Prosecutor, if that could be sent as soon as practicable, that opening in a Word format.
4 MS RUSSELL: In electronic format. Yes, Your Honour.
5 HER HONOUR: Yes, in electronic Word format so that that can be annexed to my sentencing remarks.
6 MS RUSSELL: Certainly, Your Honour.
7 HER HONOUR: Thank you.
8 A Victim Impact Statement was read aloud and tendered on behalf of Naomi Hoewel, the secretary of the Ward Avenue Kindergarten Association. I take into account the contents of that Victim Impact Statement. Victim Impact Statements are of great assistance to sentencing judges. And I will read part of this. “As to emotional trauma suffered as a result of the crime: emotional trauma suffered to committee and staff, families, due to investigation and process of uncovering defendant’s lies and theft; mistrust and anxiety for staff and committee throughout 2012 and onwards.” And then further on, “The crime committed has left staff and committee members shattered. It was a calculated and planned crime. The kinder has lost its autonomy. We can no longer improve the kinder and struggle to offer any additional opportunities for our children. Committee members and staff have been defamed and feel the blame the community has put on us for not realising the defendant’s plan earlier”.
9 Mr Telios, your criminal record consists of four court appearances between 1995 and 2005, consisting of findings of guilt or convictions in relation to offences of dishonesty. The last appearance was 29 August 2005 in relation to one charge of attempting to commit an indictable offence, three charges of obtaining property by deception, four charges of theft, one charge of obtaining a financial advantage by deception and one charge of making a false report to police. You were sentenced to 6 months imprisonment, which was ordered to be wholly suspended.
10 A psychological report of Dr Julie Janev, dated 12 June 2013, was tendered on your behalf and I will refer in more detail to that report. The psychologist reported that you informed that you had been in trouble with the criminal justice system on two prior occasions, once for assault and burglary at the age of 18, which occurred in the context of attempting to recover a gambling debt, and a second occasion five years ago when you stole property from your employer to sell for money because he was refusing to pay your wage.
11 Mr Thomas appeared on your behalf. He set out comprehensively your personal circumstances and made a plea in mitigation. He also referred to the psychological report of Dr Janev in which your personal circumstances were also set out.
12 You are currently 41 years of age, having been born on 31 March 1972. Your parents, Evangelos and Effi, are hard-working people who came to Australia from Greece. You have a younger brother, John, who is 39. After the plea hearing I remanded you in custody. Before that time you were living in East Bentleigh with your wife, Vanessa, with whom you have been married eight years, and your two children, Sofia, five years, and William, six months.
13 You have been a problem gambler for over 25 years and you committed this offence because you had incurred debts from gambling. I accept that. I accept that you stole this money on the basis that you would use it to pay your debts. Throughout your life your gambling has adversely affected you and your family. You lost your house, your first marriage failed, and you’ve lost jobs. You sold the house you were living in with your current family without telling them, as you needed to sell it to pay the gambling debts.
14 At the time you committed this offence you had been unemployed for some time. Your wife, however, was working and she was pregnant. As to your education and employment, you told Dr Janev that although you passed year 12, after your 15 years of age you became rebellious and were in trouble for fighting, verbally abusing teachers and truancy. You were expelled from four secondary schools. During your final year of secondary school you were taken to the Tasmanian casino. This excited you and you believe that this was the catalyst for you having, as you described, a lifelong addiction to gambling.
15 After you left school you commenced a degree at university but after six months you discontinued the course because of gambling. You then went to Greece to try and break your cycle of gambling but that was unsuccessful. On your return to Australia you then worked in various jobs. At one stage you were employed as a financial officer with a company and paid a salary of $120,000 per year. Unfortunately you were made redundant from that position. You then worked in sales for a year and then for four years as a waiter at the Lemnos Tavern. For around two years before you committed this offence you were unemployed and you said you had been interested in owning a restaurant with a person who is already involved restaurants.
16 Dr Janev reported that following your redundancy you experienced an increase in gambling due to boredom and that to keep yourself occupied you volunteered part-time work in a friend’s restaurant with a plan to return to study business management, information technology or trade in the future. However you did not do that.
17 Under the heading Opinion and Recommendations the psychologist, Dr Janev, reported as follows:
“In my professional opinion, Mr Telios’ offending behaviour is a direct result of his gambling disorder. It was likely aggravated by his obsessive compulsive disorder, antisocial personality disorder and inadequate coping skills, for example, his overuse of denial, minimisation and blocking defence mechanism. His conditions were undiagnosed and untreated at the time of offending, which is disappointing given his age, and very concerning when considering that he could have refrained from offending had it not been the case. According to Mr Telios for too many years the act of gambling has provided him with a form of release and escapism from negative emotions in a way no other outlet can. As a result he finds it almost impossible to perceive his identity as separate from it at present. By his own words”I feel like gambling is a part of me, because it has always been there. It’s hard to think of myself without it.’ Given the gravity of the situation I find it extremely promising that Mr Telios has been able to refrain from gambling for the past seven months and counting.”
18 Dr Janev further reported that in her opinion you have a strong rehabilitation potential at this time, particularly if you remain connected to your current supports and family and away from gambling.
19 Mr Thomas informed the court that you and your first wife were gamblers, and you both attended a session of Gamblers Anonymous, but did not continue as neither of you believed you had a problem. Clearly you did. On 12 October 2012 your offending came to light. You contacted your solicitor, Mr Thomas, at an early stage and he contacted the police. On 17 October 2012 you were interviewed by the investigating detectives. Dr Janev initially treated you under a mental health care plan, which was for nine sessions. Under that time you were transferred to Gambler’s Help, where there were 11 more sessions with Ms Moreland. I accept that for the first time in your life you have come to terms with your problems and because you now have insight, you are taking steps to deal with gambling, which is the underlying reason for committing these offences.
20 On 20 December 2012 you contacted Gambler’s Help Eastern. A report from Isobel Moreland, psychologist of that organisation, dated 12 June 2013 was tendered on your behalf. You informed Ms Moreland that you had a problem with compulsive gambling and wanted help. You attended and continued to attend on a regular basis. In the report Ms Moreland said you were actively engaged in the therapeutic process and demonstrated an ability to implement behavioural interventions as well as develop appropriate strategies to address your long-term compulsive gambling. She said that she accepts you are genuine in your assertion that you would like to continue gambling counselling for as long as necessary to enable you to feel confident that gambling would no longer be a problem for you in the future.
21 It has not been submitted that deterrence should be lessened as referred to in the decision in R v Verdins & Ors on the basis you were an gambling addict. This is correct as a matter of law and could not be taken into account in that way. There are a number of recent decisions in relation to this issue of gambling, R v Con Chi Huynh [2004] VSCA 128, R v Raddino (2002) 128 A Crim R 437, R v Atalla (2002) 132 ACrimR 531, R v Galletta [2007] VSCA 177, R v Terry Do [2007] VSCA 308. I sentence you on the basis that your gambling problem provides an explanation for your offending and that you did not offend for reasons of greed.
22 In R v Con Chi Huynh [2004] VSCA 128 p.21 Eames J said this,
“The fact that an offender had a gambling addiction and that played a part in the commission of the offences is a matter upon which little if any weight might be given by a sentencing judge: DPP v. Raddino (2002) 128 A Crim R 437; R v. Atalla (2002) 128 A Crim R 437.”
23 In R v Galletta [2007] VSCA 177 Redlich J referred to the manner in which a sentencing judge in that case dealt with the appellant’s gambling addiction. On the plea it was not in dispute that the appellant had a serious gambling addiction. It was submitted that the appellant’s offending as being out of character and should have taken his addiction into account in relation to his prospects of rehabilitation. At paragraphs 15, 16 and 17 Redlich J said:
“Whether or not an offender’s gambling addiction should be taken into account as a factor in mitigation and the weight which should be attached to it will vary according to the nature of the case. It may be taken into account as a mitigating factor. - # It would not infrequently be the case that a sentencing judge will be entitled to conclude that it should be afforded no weight. In some cases the addiction has rather been viewed as avoiding what otherwise would have been an aggravating motive such as pure greed or a desire to fund some other criminal activity. But it would be an unusual case where evidence of addiction to gambling would have any significant effect upon the importance of the element of general deterrence. Counsel for the appellant submitted that the sentencing judge had wrongly disregarded it in the present case as a mitigating factor. It is not surprising that he did so as counsel for the appellant on the plea expressly stated that he did not rely upon the appellant’s gambling addiction as a factor in mitigation. As a consequence, the sentencing judge only addressed the question of the appellant’s gambling addiction in terms of the element of general deterrence, observing, in accordance with the authority to which I have referred, that gambling addiction will have no significance in reducing the importance of the element of general deterrence. I discern no error in his Honour’s approach in this regard.
17 Although counsel for the appellant on appeal initially contended that the appellant’s gambling obsession should be viewed as a mitigating factor because it produced irrational thoughts and impaired judgment which explained why these offences occurred, this argument was but faintly pressed as it was accepted that such conditions would almost always be present when offences of dishonesty were committed as a consequence of pathological gambling.”
24 I sentence you as an appropriate vehicle for general deterrence, that is, deterring other people from behaving in the way you did. Relevant sentencing considerations for this type of offence include a combination of just punishment, deterrence, both general and specific, the denunciation by the Court of dishonesty practices in which you engaged, as well as balancing that with matters of rehabilitation that have been put on your behalf. Each case depends on its own facts and circumstances, but the concept of general deterrence together with the requirement for strong denunciation carries significant weight in this type of offence, as you are entrusted by others to deal honestly with the finances of the kindergarten. In your position in the kindergarten, which as been referred to correctly as a grass roots organisation, you held a position of trust and responsibility with the organisation, which consisted of other parents of children in your local area, most of whom you and your family knew. Until these matters came to light you were regarded as a trusted and responsible parent in the local community who was relied on to carry out the duties of the president of the kindergarten honestly and responsibly. There are matters of aggravation, namely the large amount of money you stole, the length of time and number of occasion you stole the money, and importantly the breach of trust which the other parents reposed in you.
25 I must give weight to specific deterrence. That is to deter you, to send a message that your conduct in continuing to gamble and take up positions involving owned by other people will be met with condign punishment. As I said, this organisation entrusted the finances to your care. It has been clear to you in the past the consequences of your gambling. I must make it abundantly clear that if you commit this type of offence again you will be ordered to serve a very lengthy term of imprisonment.
26 I consider on the material put before me that your chances of rehabilitation are cautiously optimistic and your rehabilitation depends on your continuing to seek professional assistance and continue insight to the extent of your gambling problem.
27 I accept the submissions made on your behalf that your offending was easily linked to you once the investigation commenced, as it was not sophisticated. You pleaded guilty to this charge and cooperated with the investigating police. You made full admissions which I take into account your plea of guilty and cooperation with the investigating police. Your plea of guilty has saved the Court the time and expense of a trial, however, it has to be viewed in the context of what in my view was a very strong prosecution case. Nonetheless, your early plea of guilty is a relevant matter to be taken into account in your favour as you have now taken responsibility for the offending and the sentence I intend to impose reflects that early plea of guilty.
28 I accept that you now are remorseful. In your favour I accept your rehabilitation will be assisted, as you now are candid about your gambling with friends and family. I take into account the references from your wife, your friends Fiona Flegeltaub, Kirrily Bloink, Evan Kotsopoulos and Kristina Arnaoutis. Your father, your uncle and father-in-law attended the plea hearing to show support for you.
29 When these matters came to light they came to light in a public arena, in particular your local area, the Greek press, and you had to acknowledge your offending and your addiction to gambling. As I stated, I accept you now have insight to your gambling problem, and I take into account the report from Dr Janev and Ms Moreland of Gambler’s Help.
30 I accept that you have been punished by the fact that you and your family reside in the local community involved in the Ward Street Kindergarten. Consequently you are constantly reminded of the upset and anger your offending has caused the families of the children who attended the kindergarten. In those circumstances you considered that you should reside elsewhere and not send your daughter to the local school.
31 I take into the account the two compensation orders which have been made.
32 I also take into account in your favour that any term of imprisonment will be more difficult for you, a man of 41 who was not served a term of imprisonment before.
33 I have ordered that you be eligible to apply for release on parole after you have completed half of the head sentence. If you are granted Parole it is imperative that you take the opportunity to continue rehabilitation that you have already started.
34 I sentence you as to 4 years imprisonment and I order that you serve a minimum of 2 years before you become eligible for parole.
35 I take into account the pre-sentence detention – and what is that?
36 MS RUSSELL: 33 days, Your Honour.
37 HER HONOUR: You agree with that, Mr Thomas?
38 MR THOMAS: Yes, Your Honour.
39 HER HONOUR: 33 days pre-sentence detention as having already been reckoned. As to s.6AAA of the Sentencing Act, had you not pleaded guilty I would have sentenced you to 5 years imprisonment with a minimum of 3 years before you become eligible for parole.
40 Now, are there any other matters?
MS RUSSELL: No, Your Honour.
HER HONOUR: Thank you for your assistance.
MR THOMAS: Thank you, Your Honour.
HER HONOUR: Very well. Would you remove the prisoner, sir. Very well. I will leave the Bench now. I have got another matter. Thank you.
(See Prosecution Opening attached.)
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Indictment No. C12926831
Court Reference: CR-13-00488
IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL JURISDICTION
THE DIRECTOR OF PUBLIC PROSECUTIONS
–v–
PERICLIS TELIOS
Date of document: | 17 June 2013 |
| Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: Office of Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: 7539 41 Reference: 1205782 |
SUMMARY OF PROSECUTION OPENING
The offender is aged 41 and was born on 31 March 1972. At the commencement of the period of offending he was aged 39 and at its conclusion he was aged 40.
History of Proceedings
The offender was charged on 17 October 2012. At a further committal mention on 19 March 2013 the offender indicated an intention to plead guilty to one rolled up charge of theft and the matter proceeded by way of straight hand up brief.
Background
In November 2011 the offender was elected to the position of President of the Ward Avenue Kindergarten Association Inc. in Oakleigh South (the Association). The Association’s committee of management comprises volunteers who are mostly parents of children attending the Kindergarten, including the offender. The offender’s wife also joined the committee at this time. [1]
[1]Statements of Naomi HOEWEL (pp.71-72), Melita KEYWOOD (p.75) & Sarah FOTHERGILL (p.82)
The Association is responsible for managing the Kindergarten’s non-teaching activities, including the payment of maintenance, equipment, excursions and daily operating expenses. It operates bank accounts and derives income from fees, fundraising and grants from the Victorian Department of Education via Early Childhood Management Services. The Association had engaged an independent accountant for about 10 years to prepare monthly reconciled account statements for the committee. [2]
[2]Statements of Melita KEYWOOD (p.76), Sarah FOTHERGILL (pp.82-87), Beverley NOLAN (pp.90-91) & Bernie NOTT (pp.96-97)
As President, the offender was one of three signatories to the Association’s bank accounts, together with the Vice President and Treasurer. Any cash withdrawals or cheques payable were required by the Association’s constitution and banking institution to be counter-signed by two of these committee members. Most bills incurred by the Association were paid by the Treasurer via on-line banking transfers using a secure password. [3]
[3]Statements of Naomi HOEWEL (p.72), Melita KEYWOOD (p.75), Sarah FOTHERGILL (p.83) & Beverley NOLAN (p.91)
As at the end of 2011 the Association’s operating bank account had a balance of approximately $11,375 while its term deposit account had a balance of approximately $190,000. [4]
[4] NAB Account Statement (p.159)
Offending
On 18 January 2012 the offender attended the NAB in Clayton to organise his signatory authorisation for the Association’s bank accounts. At this time he lodged an Account Authority Card counter-signed by himself and the Treasurer which altered the requirement for having two committee signatories authorise Association bank withdrawals/transfers to just one signatory. He also changed the Association’s mailing address for all NAB correspondence to his personal home address. [5]
[5]Statement of Sarah FOTHERGILL (p.83); NAB Account Authority Card (pp.175-179)
On the same date the offender unilaterally closed the Association’s original term deposit account and transferred its funds into three new term deposit accounts which he opened. Over the next five weeks the offender closed and opened a total of five term deposit accounts, into which he disbursed Association moneys at various times. By early March 2012 the majority of funds previously held in the Association’s original term deposit account had been diverted back into the Association’s operating bank account. [6]
[6] NAB Account Statement (pp.159-160)
At some stage the offender was issued with an individual password by NAB which enabled him to conduct on-line internet transactions involving the Association’s bank accounts.
10. In early February 2012 the offender terminated the services of the Association’s accountant and advised committee members that such fees were excessive and he would find a cheaper alternative. However, no replacement was appointed and the offender commenced preparing monthly account statements himself. [7]
[7]Statements of Melita KEYWOOD (p.76), Sarah FOTHERGILL (pp.83-84) & Beverley NOLAN (pp.91-92)
11. On 1 February 2012, the first day of the kindergarten year, the offender attended the NAB in Clayton and withdrew $1,400 cash from the Association’s operating bank account by signing a withdrawal slip and producing identification. [8]
[8] NAB Cheque (p.195)
12. Between 1 February 2012 and 15 May 2012 on 50 separate occasions the offender attended various NAB branches throughout the south-eastern suburbs of Melbourne and withdrew a total of $200,070 cash from the Association’s operating bank account. Each individual cash transaction varied from between $100 and $30,000. [9]
[9] NAB Account Statements (pp.159-170); NAB Cheques (pp.195-311)
13. Between 28 May 2012 and 1 October 2012 on 54 separate occasions the offender also transferred a total of $23,938.48 cash from the Association’s operating bank account to his personal bank account via on-line banking. Each individual transfer varied from between $50 and $3,200. [10]
[10]NAB Account Statements (pp.159-170 & 342-357)
14. In total, the offender stole $224,008.48 from the Association involving 104 separate transactions between 1 February 2012 and 1 October 2012. This represented virtually all of the Association’s funds. [11]
[11] NAB Cheques & Account Statements (pp.159-311)
Detection & Interview
15. By mid-2012 it had become apparent to the Treasurer and other committee members that the Association had insufficient funds in its operating account to pay regular bills and expenses. The offender advised the committee he had transferred the Association’s funds into higher interest bearing term deposits to maximise investment. The offender was directed to transfer moneys back into the Association’s operating bank account, however by this stage almost all of the Association’s funds had been stolen. [12]
[12]Statements of Naomi HOEWEL (p.72), Melita KEYWOOD (pp.76-79), Sarah FOTHERGILL (p.84) & Beverley NOLAN (p.92)
16. The offender also attempted to deflect attention from his illicit activities by falsely claiming other persons had apparently stolen money from the Association and/or misused its credit cards. [13]
[13]Statements of Melita KEYWOOD (pp.76), Beverley NOLAN (p.93) & Bernie NOTT (p.98)
17. On 27 September 2012 a number of committee members attended the NAB branch in Clayton and were advised that the Association’s bank accounts were empty. The suspected offending was then reported to police and investigations commenced. [14]
[14] Statements of Naomi HOEWEL (p.73); Melita KEYWOOD (pp.79-80)
18. On 17 October 2012 the offender was interviewed by police during which he made full admissions and stated that: [15]
[15] Record of Interview Transcript (pp.103-154)
- in early 2012 he withdrew money from the Association’s bank account “to pay a bill … and whatever was leftover I’ve proceeded to gamble with it” (Q143, 153);
he spent all the Association’s money on “pretty heavy gambling … Tattslotto, AFL betting, horses, greyhounds, harness, you name it”, which occurred at various hotels and TAB venues around Melbourne (Q154-157);
“I didn’t think it would reach this stage” (Q162);
“It occurred virtually if not every day, every second day. The losses started coming. I started panicking like crazy and the more I was losing the more I panicked” (Q165);
he initially transferred funds from the Association’s term deposit into its everyday bank account, from where he then withdrew it all in smaller amounts over several months (Q167-171);
he has been a problem gambler for 21 years – “I’ve had counselling over it. Counselling actually made it quite worse” (Q184, 373);
he hoped to pay the money back with funds obtained from a relative in Greece, however this did not eventuate (Q205-206, 357-372).
Maximum Penalty
19. Theft – Level 5 imprisonment (10 years maximum) per s.74(1) Crimes Act 1958.
Victim Impact Statement
20. A victim impact statement is to be tendered from Naomi HOEWEL, Secretary of the Ward Avenue Kindergarten Association Inc.
Pre-Sentence Detention
21. The offender has spent no time in pre-sentence detention.
Compensation
22. Compensation is sought in the total amount of $224,008.48.
J. Ayres
Counsel for the Prosecution
17 June 2013
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