Director of Public Prosecutions v Testa

[2019] VCC 2204

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-01496

DIRECTOR OF PUBLIC PROSECUTIONS

v

ENZA TESTA

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JUDGE:	HER HONOUR JUDGE CARLIN
WHERE HELD:	Melbourne
DATE OF HEARING:	11 December 2019
DATE OF SENTENCE:	19 December 2019
CASE MAY BE CITED AS:	DPP v Testa
MEDIUM NEUTRAL CITATION:	[2019] VCC 2204

REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Plea of guilty- obtain financial advantage by deception- one charge-full restitution made- no prior criminal history-older offender-moral culpability high- drug addiction
Legislation Cited: Crimes Act 1958 (Vic), Sentencing Act 1991 (Vic)
Cases Cited: DPP v Caulfield [2019] VSCA 131; DPP v Patel [2018] VCC 1423; DPP v Arnall [2016] VCC 640; DPP v Mastrangelo [2018] VCC 87
Sentence: Three year community corrections order with 350 hours of unpaid community work and treatment for drug abuse

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Teague	OPP
For the Accused	Mr B. Newton	Randles Cooper & Co Pty Ltd

HER HONOUR:

1Enza Testa, you can remain seated for the time being, all right.  Between late October 2015 and mid-October 2017 you, a woman in your late 40s, with no prior convictions, fraudulently secured for yourself a financial advantage in the sum of $100,689.26.  You were able to do this because you were a trusted employee and the financial controller of Reho Travel, a travel management company.

2The agreed facts are set out in the summary of prosecution opening but essentially you generated 74 false invoices to corporate clients of Reho, which caused them to pay Reho for amounts they did not in fact owe.  You then transferred the payment received, which varied between $300 and $5,350 into one of seven bank accounts in the name of a friend or associate and thereafter obtained the money from that person. You disguised the transfers from Reho so that they appeared to be legitimate business expenditures. 

3Your detection came about as a result of a tip-off to your employer.  After initially disbelieving the information Karsten Horne, the owner of Reho Travel, began investigating your activities and discovered your deceit.  He immediately reported the matter to police and dismissed you the next day, being 17 October 2017.

4You were interviewed on 13 December 2017 but not charged until 29 March 2019.  You indicated your intention to plead guilty prior to the committal mention, which took place on 14 June 2019 and in fact pleaded guilty to a single, rolled up count of obtaining a financial advantage of $100,689.26 by deception before me on 11 December 2019.

5It falls to me to sentence you for your conduct.  Your counsel submitted that a community corrections order was within range and appropriate in your case.  The prosecutor submitted that such an order was only within range if it formed part of a combination sentence, that is, if it was imposed together with an immediate term of imprisonment.

6In arriving at an appropriate sentence I am required to have regard to all the factors set out in s.5(2) of the Sentencing Act 1991. These factors are sometimes overlapping and sometimes contradictory in nature. Some tend towards leniency and some point the other way. No one factor automatically prevails over any other. Rather, I must have regard to them all and give each one the weight it deserves in order to arrive at a just sentence.

Current Sentencing Practices

7One, and only one of the matters to which I must have regard is current sentencing practices.  This is to promote consistency of approach in the sentencing of offenders and, in particular, the application of relevant sentencing principles. 

8The maximum penalty for the offence of obtaining a financial advantage by deception is 10 years' imprisonment.  The most recent Sentencing Advisory Council statistics of the higher courts (May 2019) indicate that just over half the people charged with obtaining a financial advantage by deception over a five year period received an immediate term of imprisonment in some form, with a community corrections order being the next most frequent sentence imposed.  In my view, these statistics are of limited assistance given the vast disparity in seriousness of the offence of obtaining a financial advantage by deception, even within the County and Supreme Courts.

9Whilst no two cases are the same, of more use are the sentences imposed in comparable cases.  These sentences are not binding, nor do they set the outer parameters of appropriate sentences.  They are simply a guide or yardstick against which to measure any sentence I propose in this case. 

10In support of his argument for a community corrections order, your counsel referred me to several cases which he asserted were comparable. 

11The most similar and recent case to which I was referred was DPP v Patel [2018] VCC 1423, in which His Honour Judge Johns imposed a three year community corrections order with 300 hours of community work on an offender who pleaded guilty to a rolled up count of obtaining a financial advantage by deception comprising 14 instances of dishonestly obtaining funds from his employer totalling $127,000 over an 18 month period. The 32 year old first time offender was remorseful, made full admissions when interviewed and made full restitution by means of personal loans and borrowing from relatives. The offending was motivated by financial pressures arising from two failed business ventures. The prosecutor in that case accepted that a community corrections order was within range.

12The case of DPP v Arnall [2016] VCC 640, to which your counsel also referred, was another case where an offender who essentially defrauded his employer and a supplier, to the tune of $147,000, received a community corrections order. Although the offending was described by the sentencing judge as serious, there were also a number of significant mitigating factors.

13I have also referred to the list or recent comparable cases which was provided to Judge Johns in the case of DPP v Patel, in which corrections orders were imposed, the first from employers for amounts up to $250,000 even where full restitution had not been made.

14The case of DPP v Mastrangelo [2018] VCC 87, to which I was also referred, involved a bookkeeper who effectively stole $281,170 from his employer over a two year period with massive implications for a small business and only partial restitution. There were a number of mitigating factors and despite the prosecutor submitting that a community corrections order alone was within range, Her Honour Judge Sexton sentenced the offender to six months' imprisonment and a community corrections order.

15My research has revealed a number of other cases in the County Court in which immediate terms of imprisonment were imposed for thefts from employers in recent years, albeit for larger sums than your case.  I have also had regard to the recent Court of Appeal decision of DPP v Caulfield [2019] VSCA 131, which again involved a much larger sum than yours.

16Whilst all these cases are informative, ultimately my duty is to impose a just and appropriate sentence on you in the circumstances of this case.

Objective Gravity of Your Offending and Moral Culpability

17Your offending involved a gross breach of trust.  It commenced approximately three months after Reho took over the business in which you had been working for 20 years.  It may be assumed the new owners relied heavily on you as an experienced long term employee.  Instead of assisting them in their new venture, you embarked on your own venture of deceit, which only ceased when your activity was detected.

18Your offending involved a high level of dishonesty.  On 74 separate occasions you not only deceived your employer, you deceived your employer's clients with whom, at least for some of them, you had an established relationship.  You also deceived the recipients of the diverted sums, one of whom was your cousin, by telling them false stories about the source of the money paid to them. 

19Initially you explained your offending by saying you had a gambling addiction.  This is what you told your employer and it appeared, at least one friend, Josie Litras, who provided a character reference.  However, when you saw forensic psychologist, Pamela Matthews, in November this year, you said that prior to the sale of the business to Reho you started to gamble as a relief from your heavy domestic and work responsibilities but you were soon introduced to methylamphetamine, which became your real problem.  Thereafter the main reason for you attending gambling venues was to obtain this drug.  You were using methylamphetamine two to three times a week at a cost of $300 to $400 a week. 

20Despite your apparently differing accounts, and in this regard I note that you maintain that you did tell your three referees of your drug addiction, I accept that you were using methylamphetamine for at least part, if not all, of the time you were offending.  This is because you self-referred to a drug and alcohol service on 23 May 2017, complaining of a dependence on this drug.

21However, there are several things to note about this explanation.  First, the average amount you obtained over the period of your offending was $900 a week.  So it is not clear where the balance of the money after the $300 to $400 went.  Secondly, to the extent the money you obtained was spent on drugs, it freed up the money you legitimately earned to be spent on your ordinary expenses, and in that sense you were enriched.  Thirdly, since you only used two to three times a week and were able to carry on your normal life, it appears your drug use did not amount to a raging addiction.  Finally, the authorities are clear that drug addiction is not a mitigating factor, in any event, neither, I note, is a gambling addiction.

22Ms Matthews assessed you as having insight and average cognition.  Whilst you likely had an adjustment disorder in the lead-up to your offending, this was replaced by a ‘Stimulant Use Disorder’, namely methylamphetamine, at the time of your offending.  She did not consider you had a gambling disorder at any time. 

23Having regard to the factors I have just outlined, I consider your moral culpability for your offending to be high.

Impact of Your Offending

24In his Victim Impact Statement Karsten Horne explained the ripple effect of your offending.  As well as a sense of betrayal that he and his employees felt, your close friends at work felt under suspicion despite being reassured to the contrary.  There was an enormous amount of work in reconstructing and rectifying accounts.  Reho ensured that its clients were reimbursed for all erroneous invoices however client relationships suffered.  After recovering from insurance, Reho was still out of pocket, $20,982 plus a $5000 excess on its insurance claim.  It also now has increased insurance premiums.

25That Victim Impact Statement was made on 29 July this year, prior to you making full restitution, which you did on the day before the plea hearing.  Reho will now be reimbursed the $20,982 it was out of pocket.  However, it is obvious from the Victim Impact Statement that your restitution in no way fully compensates Reho for the financial and psychological impact of your crimes.

Plea of Guilty, Cooperation and Remorse

26On 17 October 2017 Mr Horne sent you a text message dismissing you after you advised you were too sick to come to the office to attend your yearly appraisal that day.  Later that day you sent Mr Horne a text message apologising for your actions and asking for forgiveness.  You said you had a gambling problem and wished to pay back the total stolen.  The next day you sent further text messages asking to meet Mr Horne to explain your 'fuck up'.  You did in fact attend a meeting at Reho on 18 October 2018 where you again apologised.

27When you were formally interviewed by police on 13 December 2017 you admitted to having worked at Reho but otherwise responded 'No comment' to all other questions.  You were released without charge. 

28After you were charged you indicated your intention to plead guilty within three months.  In indicating your intention at that early stage you facilitated the course of justice and took legal responsibility for your crimes.  Witnesses were spared the experience of coming to court to give evidence.  You are entitled to a substantial discount for that.

29You reported to Ms Matthews that you were ‘embarrassed’ about your offending and understood the impact of your actions on Reho and its clients, noting that it would have ‘severely undermined their ability to trust people’, undermined relationships with clients and undermined the company financially.  You presented as ‘genuinely sorry’ for betraying their trust.  You expressed similar sentiments to your three personal referees, although I note that one of them refers to your offending as a momentary lapse, which it clearly was not.

30I am satisfied that your plea of guilty is accompanied by genuine remorse, which entitles you to an even greater discount on sentence. 

31Further, on the day before the plea hearing you paid the full amount that you had obtained.  It is unfortunate this happened at such a late stage as an earlier repayment might have alleviated the impact of your crimes on Reho.  However, the lateness was explained as being due to your husband's reluctance to allow the mortgage on your marital home to be increased for this purpose.  You have entered into a written contract acknowledging that should you separate from your husband the amount of the loan attributable to the consequences of your offending is your responsibility.  Whilst late, your restitution is nevertheless a significant matter in your favour.

Delay

32You were first confronted about your offending on 17 October 2017.  Mr Horne made a statement and provided records to police on 21 October 2017.  You were interviewed on 13 December 2017, charged on 29 March 2019, and pleaded guilty on 11 December 2019. 

33There is no doubt that fraud offences take some time to investigate and the fact you essentially made a no comment interview would not have assisted the process. That said, the reason for the 15 month delay between interview and charge has not been explained other than the prosecutor accepting it was through no fault of yours.  I take into account, as a matter that mitigates your sentence, the fact that you have had the worry of this matter over your head for over two years.

Background and Personal Circumstances

34Your background and personal circumstances were set out in detail in the Outline of Defence Submissions tendered on your plea and marked as Exhibit 1, and elaborated upon in oral argument. 

35Very briefly, you were born in Swan Hill in 1969 and raised in Coburg, Melbourne, by your parents.  You describe ‘happy memories’ of childhood.  You have two siblings and also lived with your grandmother growing up.  Your mother and father were born in Italy and moved to Australia at ages five and 20 respectively.  Your parents both worked in factories.

36You attended primary and high school in Moreland and report doing well academically.  You left school at the beginning of Year 12 where you commenced work in the travel industry. 

37You have a good employment history.  After leaving school you were employed by Jetset as a typist.  After that company went into voluntary administration you commenced work at Net Corp, which eventually became NGT and then Reho as a travel consultant.  You worked for this business, in its various incarnations, for 25 years.  You eventually took over the bank and debt collection part of the business and described working long hours, particularly when the business was put up for sale.  It took you six months to find work after you were dismissed from Reho and you are currently working four days a week in Thomastown as a receptionist.

38You met your husband when you were 18, moving in together a year after you met and eventually purchasing a house together.  You currently live together in Greenvale.  I am told your offending has caused strain in your relationship.

39There are three children of the marriage, aged 23, 20 and 17, with your youngest son still in high school.  Your middle child, a son, has Autism Spectrum Disorder, which is something you, as a mother, have had to manage.  You told Ms Matthews that you have had to mediate the relationship between this son and your husband, which has been difficult at times.  Further, this son was recently charged with rape and though ultimately found not guilty, the whole process was distressing. 

40You reported to Ms Matthews that you struggled managing your work and home life, including the care of your three children. You currently have a carer role for your elderly parents as well as continuing to care for your children, all of whom still live at home. 

41Ms Matthews states that in the ten to twelve months prior to your offending you experienced ‘significant levels of stress’ which precipitated your gambling and then drug use.  You described to Ms Matthews that your substance abuse started as a result of needing to work long hours and additionally being preoccupied with the care of your three children.  You report that methylamphetamine assisted you in remaining awake, managing your workload at home and at work, and that it made you ‘actually enjoy’ work again.  You report that you have not used methylamphetamine since your arrest in December 2017 for this offending.

Your Character and Risk of Reoffending

42You have no prior convictions.  You have a good employment history.  You are entitled to be sentenced as a person of otherwise good character. 

43The three character references tendered on your plea speak to this offending being completely out of character.  One of the referees, Josie Litras, said that in late 2017 or early 2018 you told her that you had developed a gambling addiction and also that you had done something you were very ashamed of. 

44None of the referees referred to methylamphetamine use in their original references, dated in June and July 2019. This morning I received amended references from two of these referees, now referring to your gambling and drug addiction.  The amended reference from Josie Litras now states that you told her in late 2017 or early 2018 that you had developed a gambling and ice addiction.  That amendment really raises more questions than it answers.  Nevertheless I am prepared to accept that these people know you as a kind, generous and good person.

45Ms Matthews assessed you to be at low risk of reoffending.  She did however consider you displayed some vulnerability factors, such as hostility, and your somewhat naïve view that drugs are no longer a problem for you.  Ms Matthews opined that you would benefit from drug testing, addiction counselling and counselling that addresses mood regulation and assertion to address your specific treatment needs. 

46I am satisfied that your risk of reoffending is low, especially as you will be required to undergo drug and alcohol assessment and treatment as part of your Corrections order.

Purposes of Sentencing

47In addition to specifying matters to which I must have regard in arriving at an appropriate sentence, the Sentencing Act 1991 prescribes the purposes, indeed the only purposes, for which a sentence may be imposed. These are just punishment, deterrence, rehabilitation, denunciation and protection of the community. A custodial sentence must only be imposed as a last resort.

48In your case general deterrence, just punishment and denunciation loom large in the sentencing process.  Whilst not so important, specific deterrence and rehabilitation also have some role to play.

49I have had you assessed for a community corrections order and you have been found suitable and indicated your consent to that order.  The central issue for me is whether to impose that on its own or in combination with a term of imprisonment. 

50It is clear that a community corrections order has a punitive element and that it can, in appropriate cases, achieve all the sentencing purposes, including denunciation and general and specific deterrence.  Further, I am obliged only to impose a term of imprisonment as a last resort.  That is, if the sentencing purposes cannot be satisfied by any other disposition.

51I have weighed all the matters in your favour and against.  Whilst your offending is serious and your moral culpability high, the mitigating factors are such that I have decided the purposes of just punishment, general and specific deterrence, and denunciation, can be achieved by means of a community corrections order alone.  Such an order will serve to facilitate and consolidate your rehabilitation. 

Sentence

52If you could stand, please, Ms Testa.

53On the charge of obtaining a financial advantage by deception I convict and sentence you to a community corrections order.  The order will last for three years. 

54You are to report to Coolaroo Community Correctional Centre by - well, it is within two clear working days of today.  I will come back to you with the actual time but within two clear working days of today, because the order starts today. 

55So there are a number of mandatory terms to the order, including that you must not commit another offence.  You have to comply with obligations and requirements prescribed in the regulations.  You have to comply with lawful instructions and directions from the secretary. 

56Now, there are other mandatory conditions.  They will be explained to you but I have also imposed two extra conditions. The first is unpaid community work.  You must perform 350 hours of unpaid community work over the period of three years.  You are also subject to a treatment and rehabilitation condition.  You must undergo assessment and treatment, including testing, for drug abuse or dependency as directed by the regional manager. 

57So, as I say, your counsel will explain that order to you in more detail but you have to ensure that you comply with it.  If you do not then you are liable to be resentenced for these offences and you face, as you did initially when you came before me, because if you breach the order you will come before me again, you face the prospect of a term of imprisonment.  As well as that, on the original offences, not complying with the order is an offence in itself, and that carries a term of imprisonment of three months.  So it is very important that you comply with the order.  Do you understand that?

58OFFENDER:  I do, Your Honour.

59HER HONOUR:  So you have to report to Coolaroo Community Correctional Services Centre by 4 pm on 23 December.  So that is the close of business then.  Now, we are just printing out that order, which I will then sign.  You will then sign it. 

60While we are waiting for that I will also announce that if you had not pleaded guilty to these charges and if you had been found guilty by a jury, I would have sentenced you to a term of imprisonment of three years with a non-parole period of two years.

61Ms Teague, are there any other matters I need to attend to?

62MS TEAGUE:  No, Your Honour.

63MR NEWTON:  May I approach the dock, Your Honour?

64HER HONOUR:  Yes, certainly, yes.

65MR NEWTON:  Your Honour, I just note ordinarily where there is a condition for both community work and treatment, that there might be a - - -

66HER HONOUR:  An offset.

67MR NEWTON:  An offset.

68HER HONOUR:  Yes.  I am not providing for that.  So I intend there to be no offset.

69MR NEWTON:  As Your Honour pleases.

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