Director of Public Prosecutions v Titany

[2015] VCC 978

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-01-01380

DIRECTOR OF PUBLIC PROSECUTIONS

v

EMILY TITANY

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JUDGE:	HER HONOUR JUDGE HAMPEL
WHERE HELD:	Melbourne
DATE OF HEARING:	10 July 2015
DATE OF SENTENCE:	10 July 2015
CASE MAY BE CITED AS:	DPP v Titany
MEDIUM NEUTRAL CITATION:	[2015] VCC 978

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Roper	OPP
Accused	Self-Represented

HER HONOUR: 

1I am sorry, Ms Titany, I am just working out the logistics of this.  Let me explain to you what I am going to do.  You can remain seated.

2Defrauding people and telling lies in order to get money, particularly when it is just for lifestyle purposes, is obviously something that is dishonourable, as well as dishonest, and as well as criminal.  Normally it would require significant punishment, particularly for somebody who is an adult. 

3Your case and your circumstances make this a very unusual form of case, particularly unusual for a case that comes before this court where we deal with the more serious offending.

4Had you come before me as an unrepentant 25 year old who had been obtaining money by deception to have a more comfortable life, you would have been at risk of receiving a gaol sentence, depending on the way you were living your life.  Whether there was a sign that you had changed your ways or not, you certainly would have been looking at having a conviction recorded against your name.  But this combination of things satisfies me that whilst it is appropriate, you having pleaded guilty, for me to be satisfied on the material you are guilty of the offences, not to record a conviction against your name and to adjourn the matter and to release you on an undertaking to be of good behaviour for a period of 18 months. 

5I am doing that for these reasons:

6In the 15 years since the offending, you have clearly lived a good and honourable life that stands in contrast to this period of selfish offending. 

7The fact that as a 24 year old you committed this offending when you had relatively recently arrived in Australia - you were without family support and parental guidance, you were under pressure to achieve well on the scholarship you had been given and to support your family back home in Kenya - in itself means that somebody who is youngish and without family support and guidance at the time should be deserving of more understanding for their offending than people who are better placed to know very clearly their boundaries between right and wrong and should be able to withstand temptation.

8The fact that at the time you were questioned you admitted and acknowledged your dishonesty and were prepared, not only to acknowledge your own dishonesty, but to take the additional step of providing assistance to the prosecution, shows that although you did the wrong thing, you were prepared to take responsibility and to try and do even then what you could to make good for it.

9In the time since then, although like many immature young people, you ran away and perhaps hoped you could put it behind you without having to face your responsibility, in that time, whilst you ran away and before the warrant caught up with you, you showed that this was indeed an aberrant period in your life and contrary to the values that you lived yourself and modelled to other people as a maturing adult.  So whilst you cannot be rewarded for bad behaviour by running away, the fact that you did not continue in a dishonest or any other criminal lifestyle, that you have used that time well and usefully, counts in your favour.  It shows that normally what we would have to look at if we were sentencing someone close to the time of offending, that is, whether they are likely to offend again, whether they need to be deterred from offending again, whether we need to give a sentence that encourages rehabilitation, those factors do not apply so much when I am sentencing you so far after the event when you show that you have actually, by your own efforts, not offended again and rehabilitated yourself.

10That comes not just from the absence of convictions, but it comes from that incredibly impressive array of testimonials that I have been provided with, but also from what you have told me, the way you have expressed yourself and what seems to me to be a genuine shame about this offending and a real shame about that contrast you see between the role model you have tried to be to your children, to young women from emerging communities who you work with and to your husband and your broader community. 

11Not everybody who comes before this court is ashamed and shows that they have changed their life.  You really have, and I wish in a sense that other people could see the way you have presented and think about whether that is indeed the way to take responsibility for past bad behaviour but show that you can move on and live a better life and make amends, all of those things that you have done.

12All of that in itself would probably be enough to get me close to saying certainly that no sentence other than an adjournment with a promise to be of good behaviour would be sufficient.  But the things that have tipped the balance for me in deciding that, in addition, I should not impose a conviction are these:  The obvious hard work you have done to educate yourself and then to use the benefit of that education for yourself and other people; the strength that you have shown after you have had what could have been catastrophic stroke, in not only working on your own rehabilitation, but seeing, as you have expressed it, that being saved was a real privilege and gave you a different purpose in life beyond that. 

13I cannot tell you how moving it was to hear you express yourself that way and to hear from the way you told me what you had been doing since then that you are living it, you are not just talking it, that sense of responsibility, seeing your life now as a gift and putting back in.

14It would serve no purpose and would do you real harm if I recorded a conviction, because you would lose your capacity to hold the jobs that you have and to continue to work to better the lives of others who may not have yet had the advantages you have, and I think it will probably give you an even greater capacity to help young people who are heading in the wrong direction to understand and to be able to inspire and enthuse them with an understanding that doing something wrong does not mean your life is over, you can help turn your life around.  For them, these young people, to see as a role model someone whose life has not always been perfect, but who has been able to do well, may inspire these young people who may feel defeated by the trouble they find themselves in.  If you feel the courage to share your story with the some of the young people you are helping, that may well be something in addition to all you are already giving them that could ensure that not only you are putting back in, but you are helping a whole generation of other vulnerable young people to have a sort of happy and fulfilled life that you have been able to have and that you feel so privileged to have. 

15So that is why all of those reasons make it abundantly clear that, for me, any sentence other than marking the acknowledgement of your guilt, by adjourning the matter for a period of 18 months, on your promise to be of good behaviour would amount to a disproportionate punishment.

16For the record, I need just to do a little summary of what you have actually done so that if you come back before me or someone else because you do not live up to the promise that you have so abundantly shown the circumstances of the offending as well as your circumstances will be clear on the record, but I have every confidence that you will not breach this undertaking I am going to ask you to give to be of good behaviour.

17I am not going to put any other conditions on it, because it seems to me, of your own volition, you are already doing ample community service and putting ample into the community, and it is also clear to me that you have not done this just in order to have things look good for you for the court hearing, this is a demonstration of the way you have been living your life for a long time.  So that is why, again, it is just that one limited condition.

18I also have to make a declaration about the sentence that I would have imposed if you had not pleaded guilty.  That is a difficult one.  If you came before me today having lived the life that you have but pleading not guilty and been found guilty, I certainly would have imposed a conviction and I probably would have imposed a sentence that would have required you to be under supervision and to perform some unpaid community work, a community correction order.

19If you had come before me 15 years after the offending having not used the 15 years fruitfully, you might have been looking at something very different again, like perhaps gaol, and if you had been sentenced back at the time, having pleaded not guilty, you would almost certainly have been looking at a conviction result, whether it was going to be a fine, unpaid community work, supervision in the community or maybe even a suspended gaol sentence, which would have been available at the time. 

20For the purposes of s.6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have imposed, with conviction, an adjournment for a period of three years on your undertaking to be of good behaviour. 

21Now just to do a short summary of the circumstances of the offences.

22Over a period of two years, between July 1997 and December 1999, on four separate occasions you filled in or signed applications for finance which contained information which you knew to be false and, as a result of that, obtained a total of $48,625 from financiers as a result of the false representations as to your financial circumstances.  That amount you obtained is, as I understand it, the amount that was obtained and not repaid by you, some of the amounts advanced having been repaid. 

23Over that same two year period you made two further applications for finance containing similar false information, but which were rejected.  Thus, that leads to two charges of attempt to obtain a financial advantage by deception as well as the four completed charges of obtaining a financial advantage by deception.

24It is important to note that the original offending was not your idea.  You were put on to it by somebody who, on the information I have been given, was running, in effect, a scam or a conspiracy to assist people to make false statements in loan applications in order to obtain finance.  But once shown that this could be done and how easy it was to get money, it can be said that you enthusiastically followed suit and, of your own volition, continued to do so, and indeed, in respect of one charge, obtained a substantially greater amount than any of the other amounts.

25That, I think, is a sufficient description of the circumstances of the offending for the purposes of the record.

26Would you stand for a moment again, if you do not mind, Ms Tanui.

27In respect of the six charges to which you have pleaded guilty, I find them proven, and without recording a conviction, I adjourn all matters for a period of 18 months upon your undertaking to be of good behaviour. 

28PRISONER:  Thank you.

29HER HONOUR:  I will now have that undertaking produced.  You will be asked to sign that, and once you have signed that undertaking and confirmed to me that you are prepared to make that undertaking, that promise to me, to the court, to be of good behaviour, which means not committing any offences and being a good person generally ‑ ‑ ‑

30PRISONER:  Yes.

31HER HONOUR:  Then you will be free to go.

32PRISONER:  Thank you so much.

33HER HONOUR:  Right, thank you.  Take a seat. 

34…

35HER HONOUR:  Our last difficulty is this.  The charges in the system under the name of - or the charges are under the name of Emily Titany because that's the name on the indictment.

36MR ROPER:  I see.  Yes.  Also known as ‑ ‑ ‑

37HER HONOUR:  You'd have to apply to amend the indictment, we'd have to amend the indictment, then amend the name in the system, but I assume that so far as the criminal record is concerned, it's clear that the Emily Titany charged is the Emily Titany, as she then was, now known as Emily Tanui.

38MR ROPER:  Yes.

39HER HONOUR:  So, so far as leave is concerned, all names will go under the same entry.

40MR ROPER:  Yes.

41HER HONOUR:  And that's really the only purpose of having the different names so that it's traceable in the record.

42MR ROPER:  Yes.

43HER HONOUR:  Are you prepared, Ms Tanui, to give the undertaking in the name of Emily Titany?

44PRISONER:  Yes.

45HER HONOUR:  Which was ‑ ‑ ‑

46PRISONER:  Yes.

47HER HONOUR:  ‑ ‑ ‑ the name that you used at the time of the offending?

48PRISONER:  Yep.

49HER HONOUR:  Or some of it.

50PRISONER:  Yes.

51HER HONOUR:  Or by the time you were charged?

52PRISONER:  Yeah.  But now my - my record is now connected.  When I put a clearance it all comes up.

53HER HONOUR:  That's right, yes.  So as long as that's clear now ‑ ‑ ‑

54PRISONER:  Yep, yep. 

55HER HONOUR:  I don't see a need to put any more names in.

56MR ROPER:  The informant will be updating LEAP anyway on the basis that the names will be connected in the system.

57HER HONOUR:  And it clearly came up, because that's how the warrant was found.  I mean our last problem was it still had the Oakleigh address.  So that's now been changed.  I think it's now going to be right.

58Ms Tanui, I am sorry it has taken so long.  We now have the adjourned undertaking form which indicates that you have been found guilty of the two charges of attempt to obtain financial advantage by deception and four of obtaining financial advantage by deception and placed you on an undertaking with the following conditions: That it starts today and goes for 18 months; that you must be of good behaviour during the period of the undertaking; and that you must attend before the court if called upon to do so during the period of adjournment. 

59You are now going to be asked to sign this undertaking and it contains this endorsement: "I understand the effect and conditions of this order and consent to it being made."  If you sign that with that understanding, then I will countersign it and you will then be given a copy and then be free to go.

60PRISONER:  Thank you.

61HER HONOUR:  It also contains a warning that if you break the conditions of the undertaking you can be punished for any offence that has been adjourned on your agreeing to enter into the order, so that is the six charges that are before, that you can be punished for failing to be of good behaviour and, in addition, to be punished for either of those, you can also be fined.

62PRISONER:  Thank you, Your Honour.

63(Order signed and acknowledged.)

64HER HONOUR:  Sorry, it took look longer to formalise the order than it did for the reading of the charges, the presentation of the Crown's summary or the presentation of the defence submissions.  I am sorry for that.  I am sure I will not see you before the court again unless you come in to support someone and give character evidence for them.

65PRISONER:  Yes.  Thank you so much.

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