Director of Public Prosecutions v Thompson
[2012] VCC 970
•22 June 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00494
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KYLIE THOMPSON |
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JUDGE: | HER HONOUR JUDGE WILMOTH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2012 | |
DATE OF SENTENCE: | 22 June 2012 | |
CASE MAY BE CITED AS: | DPP v. Thompson | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 970 | |
REASONS FOR SENTENCE
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Catchwords: Early plea of guilty to 6 x obtain property by deception and 5 x obtain financial advantage by deception; total amount $338,901.67; victim was employer and accused was in position of high level of trust; offences occurred over long period; offending hard to detect; mitigation due to likely pre-existing depression and anxiety and need for therapeutic counselling; good prospects for rehabilitation; about a third of funds repaid.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Porceddu | |
| For the Accused | Mr T. Freeman |
HER HONOUR:
1 Kylie Thompson, you have pleaded guilty to six charges of obtaining property by deception and five charges of obtaining financial advantage by deception.
2 In the order in which they appear on the indictment, they are as follows: Charge 1, obtaining property by deception, the value being $1650.03;
Charge 2, obtaining property by deception, $6243.90;
Charge 3, obtaining financial advantage by deception, $740.78;
Charge 4, obtaining property by deception, $24,104.08;
Charge 5, obtaining financial advantage by deception, $7267.85;
Charge 6, obtaining property by deception, $125,851.63;
Charge 7, obtaining financial advantage by deception, $25,117.30;
Charge 8, obtaining property by deception, $60,601.67;
Charge 9, obtaining financial advantage by deception, $24,974.64;
Charge 10, obtaining property by deception, $48,946;
Charge 11, obtaining financial advantage by deception, $13,403.79.
3 From July 2004 you were working as a senior secretary at Rio Tinto Pty Ltd in Melbourne. You were responsible for booking flights and accommodation, ordering taxis and couriers and other general administrative duties. You were given a corporate credit card for making payments for these and other legitimate business expenses. You were required monthly to codify each expense, assigning it to a particular costs centre within the organisation, recording this electronically on an allocation form. The relevant receipt was then to be attached to the allocation form and submitted for approval and signature by a more senior employee.
4 By falsely nominating an alternative costs centre code, attributable to another manager, and entering a false expense category on the allocation forms, you submitted for approval, expenses you incurred for your own private enjoyment. For example, you created fictitious expenses for flights or accommodation attributed to another employee and produced an allocation form covering that expense, together with supporting documents relating to that employee. In the case of air travel, you would provide altered e-Tickets that you had purchased for yourself, using the corporate credit card, and then substitute your name for another employee who had purportedly travelled. On three occasions you channelled refund payments from conference venues due to be paid to Rio Tinto into your own bank account.
5 All these deceptions were difficult to detect, and indeed, were not detected until anomalies were identified in April 2010.
6 After enquiries were made, your employment was terminated on 30 August 2010 and you were arrested and charged on 21 June 2011.
7 A total sum of $338,901.67 was obtained by you through these deceptions, involving 375 fraudulent transactions between January 2005 and August 2010. You used this system to pay for your own domestic and first class international travel and accommodation, concert tickets, restaurant expenses, alcohol, entertainment for your friends and family, unbeknown to them, numerous other expenses and cash withdrawals.
8 A victim impact statement has been provided by Mr David Peever, managing director of Rio Tinto Australia and companies within the group. He was informed by your manager that you were regarded as a competent, reliable and strong performing employee in whom a great deal of trust was placed by him and other employees.
9 Mr Peever gave details of a number of ways in which your criminality and consequent sudden termination affected the organisation deleteriously. A great deal of effort, time and expense has been devoted to the investigation and to reviewing administrative procedures to avoid a recurrence. Staff whose names you had used in the deceptions felt betrayed, and many were very concerned at the possibility of having to give evidence in court.
10 Similar exploitation of fellow employees has been held in the recent case of Akkala v. R[1] to be an aggravating factor.
[1] [2012] VSCA 29[12]
11 By your very early plea to these charges, you have, of course, avoided the need for a trial, and in this case that has been of significant benefit to the criminal justice system. For example, it avoided the need for a very large number of other persons to be interviewed in preparation for a trial. This means you are entitled to a significant discount on your sentence.
12 Just as your colleagues and superiors were shocked to learn of your offending, so were your family and friends. According to the many references provided by them, you were universally regarded as a hardworking person, a good friend, a loyal daughter and sister, and you have been in a stable relationship for three years.
13 You have no prior convictions, and none of your family have ever been in trouble with the law. Indeed, even after you were charged, you were able to find work and remained employed until very recently.
14 You are aged 34, one of two children in an intact and very supportive family. You completed secondary school and studied at university for a year, then at TAFE, where you completed business qualifications. You travelled and worked overseas for several years and returned to Melbourne when you were 25.
15
Following being charged, you began consultations with the psychologist,
Mr Cummins, late last year, and in his report, and in his evidence, he offered the opinion that you have suffered from the condition of low self-esteem, anxiety and depression since at least your early teenage years, which had its origins partly in the separation of your parents when you were 11 or 12.
Mr Cummins considered you have repressed your feelings concerning this and have not fully come to terms with it. In addition, you report having always felt bullied and intimidated by your brother, who is five years older. His perception is very different from yours, as he claims, in a letter that he wrote in your support, to have always had a special relationship with you.
16 In any event, Mr Cummins formed the view, after ten consultations with you, that you are a person who is insecure, interpersonally dependent and requires constant reassurance.
17 A further matter relevant to your psychological state is the fact that soon after your employment was terminated, but before you were charged, you made a complaint to Rio Tinto that you had been sexually harassed by a manager in the UK division of the company. You recently made a statement to police and the matter is under investigation. You told Mr Cummins that your offending escalated at the time of the sexual harassment, and he offered the opinion that your pre-existing psychological condition has been exacerbated by that harassment. He considers that your incarceration will in turn exacerbate it and place you at some risk in prison.
18 For these reasons, Mr Hill, who appeared on your behalf, submitted that your condition should go some way towards mitigation of your sentence by way of reducing your criminal culpability, as should the likelihood of your vulnerability in prison, and that your experience of prison will be more difficult for you than for many others. This is not to say, and Mr Hill did not demur from this, that general deterrence should not be the most important consideration in sentencing you. Your actions were a gross breach of the high level of trust placed in you, committed over a long period of time, and others must know that such behaviour will be firmly denounced by the courts and punished appropriately. The charges are very serious and the maximum penalty is ten years' imprisonment.
19 I agree with Mr Hill's submission as to the relevance of your mental state and I shall take it into account in determining an appropriate sentence.
20
The fact that you are already engaged in therapy with Mr Cummins and that you wish to continue is an indication that the minimum period which you must serve should not be so long as to be crushing, so that the opportunity to
re-engage in counselling not be delayed for too long.
21 Other matters in mitigation include your remorse, which you have already demonstrated by a significant effort towards restitution; the payment of $102,000 to Rio Tinto, made possible by a loan from your parents. You intend to try and repay the balance over time.
22 Those who have written references for you state that you are indeed remorseful.
23 You have good prospects for rehabilitation, particularly through counselling therapy, which may assist you to understand the reasons behind your offending, and hopefully in future you will be able to make a useful contribution to the community.
24 There has been a delay between when you were charged and the finalisation of the matter commensurate with the complexity of this case. That is also a matter I must take into account.
25 You co-operated with the authorities from the beginning and pleaded guilty at the earliest possible time. In the interval, you have put the time to good use, but have also lived with the painful knowledge that you have caused great anguish and anxiety to your partner and parents and others close to you, with the prospect of gaol lying ahead of you.
26 Ms Thompson, will you stand now, please?
27 I sentence you to the following terms of imprisonment:
For Charge 6, two years and eight months. That will be the base sentence for purposes of cumulation.
For Charge 4 and Charges 7 to 11 inclusive, two years for each charge.
For Charges 2 and 5, 12 months for each charge.
For Charges 1 and 3, six months for each charge.
One month of the sentences for each of these charges will be served in cumulation upon the base sentence, resulting in a total effective sentence of three and a half years.
I order that you serve a minimum period of 18 months before being eligible for parole. That non-parole period is relatively short because of the need for you to engage in therapy sooner rather than later and because this will enhance your already good prospects for rehabilitation.
28 If you had pleaded not guilty to these charges, I would have sentenced you to four and a half years' imprisonment with a minimum period of three years to be served.
29 You have now been in custody for seven days, which is to be reckoned as already served, and I shall cause that to be entered on the court record.
30 The prosecution has applied for a compensation order that the sum of $236,901.67 be paid to Rio Tinto and that there be a forfeiture order in relation to items seized. I understand that you consent to those orders; is that right, Ms Thompson, through your counsel?
31 MR FREEMAN: Yes, Your Honour.
32 HER HONOUR: Yes, thank you. And I make those orders.
33 Now that pre-sentence detention of seven days; is that correct? Can I just check that with you, Mr - - -
34 MR PORCEDDU: Your Honour, it's nine excluding - well, sorry, nine including today, eight excluding today.
35 HER HONOUR: All right, well, I will make it eight excluding today.
36 MR PORCEDDU: Thank you, Your Honour.
37 HER HONOUR: Any other matters?
38 MR PORCEDDU: No, Your Honour.
39 MR FREEMAN: No, Your Honour, thank you.
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