Director of Public Prosecutions v Trappitt
[2023] VCC 292
•2 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-19-02169
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANGUS TRAPPITT |
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JUDGE: | HIS HONOUR JUDGE MAIDMENT |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 12 September & 23 November 2022, 2 February 2023 |
DATE OF SENTENCE: | 2 March 2023 |
CASE MAY BE CITED AS: | DPP v Trappitt |
MEDIUM NEUTRAL CITATION: | [2023] VCC 292 |
REASONS FOR SENTENCE
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Subject:Trial - sentencing
Catchwords: Obtain financial advantage by deception - perjury
Legislation Cited:
Cases Cited:
Sentence:17 months' imprisonment, 3-year CCO, pay $151,970 compensation
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr A. Grant | Office of Public Prosecutions |
For the Accused | Mr D. McGlone | Sarah Pratt & Associates |
HIS HONOUR:
1Angus Trappitt, on 14 February 2022 following a trial by jury, you were found guilty of six charges of obtaining a financial advantage by deception and six charges of perjury. Following the convictions your bail was continued until it was revoked on 12 September 2022. You have been in custody now since that date.
2The maximum term of imprisonment for obtaining a financial advantage by deception is imprisonment for 10 years. The maximum penalty for perjury contrary to common law is imprisonment for 15 years.
3You have no prior convictions. The case against you is outlined in the summary of prosecution submissions on sentence which is Exhibit A on the plea.
4The offences occurred between 8 May 2018 and 20 July 2018. During that period you were employed by the Financial Ombudsman Service Limited. You fabricated claims that you were being threatened by a client of the Financial Ombudsman Service, following a period during which you had been assigned as case manager handling a complaint to the Financial Ombudsman Service by your victim.
5On 26 April 2018 you telephoned your victim and advised him that you would recommend that the resolution of the complaint that he had raised would result in a finding which favoured the bank which had been the object of his complaint. Your victim made it clear that he was not happy with your recommendation and indicated that he may choose to make a further complaint.
6On 7 May 2018 you sent your victim an email reminding him that he had until 26 May 2020 to accept or reject your recommendation. It was the prosecution contention at trial, and I accept beyond reasonable doubt, that your victim had no further contact with you or with Financial Ombudsman's Office through email or any other means after that date.
7However, on 7 May 2018 a number of emails which were purportedly sent to you by your victim arrived. Those emails were the first of many threatening emails that were purportedly sent to you by the victim. The jury verdict means that they were satisfied to the criminal standard that you were responsible for creating and sending those emails.
8On 8 May 2018, you notified your employer that you had received threatening emails from your victim. On that day your employer, apparently accepting the truth of your assertions, engaged a security group to provide advice to minimise the apparent risks created by the emails purportedly sent by your victim.
9On that day, your senior manager advised you to report the matter to police. Later that day you attended the Melbourne West police station and made a formal police statement in relation to the purportedly threatening emails. The jury verdict means that they were satisfied to the criminal standard that that written statement to police contained false information. That statement is the basis of Charge 7. It was the first of six statements that you made in a similar manner to police, containing false allegations directed at your victim.
10On 9 May your employer arranged for your emails to be redirected to one of your senior managers. Your employer also put in place security precautions which were in place from 9 May 2018 until shortly before you were interviewed by police in relation to this offending on 20 July 2018. Those precautions included engaging a security group to provide advice and security officers, who were tasked to monitor you, your safety and the safety of your then partner.
11Secondly, they were engaged in arranging and paying for alternative accommodation for you and your partner, away from your then home address, including at one point accommodation in Queensland to provide you and your partner with some respite from these purported threats. I note in passing that you were first offered a trip to Tasmania, but you indicated that you did not wish to go to Tasmania and therefore a trip to Queensland was arranged.
12Also, the measures taken by your employer included providing meals and supplies for you and your then partner while you were living away from home, and providing travel and transfer between the locations at which you were staying with your partner. Your employer also provided legal assistance to enable you to obtain an intervention order against your victim for your own protection. The measures also included paying other incidental expenses incurred by you and your partner while living away from home.
13The services to which I have just referred were each a financial advantage received by you during the period of the alleged offending. They are reflected in Charges 1 to 6 on the indictment.
14The threatening emails purporting to be made by your victim against you and sent to you continued between 9 May 2018 and 17 July 2018. The jury verdict means that they were satisfied to the criminal standard that you were responsible for preparing and sending all of those emails to your email address at your employer.
15In addition, towards the end of the period during which those offences were committed, you reported that you had been confronted by unknown males on a number of occasions and reported finding a threatening note at your home. You also reported being threatened and confronted by unknown males on 9, 11 and 13 July 2018.
16You made it plain in your indications to your employer and in your statements to police that those confrontations had apparently been initiated by your victim, who was then a resident of Western Australia.
17You subsequently made further police statements implicating not just those who had confronted you in Melbourne but implicating your victim as the person behind the continued threats. In your final statement to police, which is the subject of Charge 12 on the indictment, you made even more elaborate allegations of being attacked in the street, attacked with an edged weapon and threatened, resulting in you reporting that incident to first your employer, and then in the form of a written statement to the police. Again, you implicated your victim as the person behind the assault upon you and the further threats.
18After you were arrested on 20 July 2018 there were no further emails to you of a threatening nature purporting to come from your victim. There were no further occasions upon which you reported that anyone had been following you, assaulting you or threatening you or your partner, nor anyone associated with you.
19I am satisfied that the summary of the case against you as set out in the prosecution summary of submissions on sentence, Exhibit A on the plea hearing, is a fair and accurate account of the relevant events. I am satisfied of those matters beyond reasonable doubt.
20You have no prior convictions. The total sums of money, the benefits of which you obtained during the course of conduct encompassed by Charges 1 to 6, are detailed in the annexures to the indictment and total $151,970.79.
21A compensation order is sought by the prosecution against you and I propose to make that order.
Personal Matters.
22Your counsel provided me with a written plea submission dated 9 September 2022 and that became Exhibit 1 on the plea. In addition, I was provided with references from a sister-in-law dated 24 August 2022, from a Michael Hopkins dated 20 August 2022, a Kieran Shaw dated 27 August 2022, another sister-in-law Amy Trappitt dated 5 September 2022, your father dated 27 August 2022, your brother Fergus Trappitt dated 25 August 2022 and your mother dated 27 August 2022.
23I propose to read out a passage from the letter of reference from Fergus Trappitt, which reads:
“While I am not seeking to excuse his conduct [meaning your conduct], I humbly request that the following is considered with regards to sentencing:
Any period of incarceration is likely to have an exponentially significant impact due to his Asperger Syndrome Disorder, for which has only been diagnosed in adulthood, but has struggled with throughout his life. The impact on his life and capacity for social interaction has been significant. It has meant that he has often come across as antagonistic or contrarian in his daily life which has made it challenging for him to establish friendships.
The lengthy period between being charged with the criminal offences in 2018 and his conviction. Angus has been unable to pursue any meaningful employment during this period, this delay has caused significant stress to his fiancé and our parents. [And I might say that I understand that the relationship with your fiancé has come to an end.]
The extra curial punishment from the highly visible nature of the investigation and his subsequent dismissal from his previous employment, has meant that he will be unlikely to return to his previous field of employment. As well as the significant period of time that he has been on bail, which has effectively led to his confinement within his residence. The impact on his mental health has been significant, the sense of disgrace that he feels impacts on all facets of his life. He has become reclusive and embarrassed to appear in public. The impact of the conviction has permanently altered the way he interacts with people.”
24He indicates, as the other letters do, that you will continue to enjoy the support of your family in the future. I note that your father is present in court.
25I was also provided with a letter from Dr Gooding concerning your diagnosis of Level 1 Autism Spectrum Disorder and Attention Deficit Hyperactive Disorder of predominantly inattentive type. Dr Gooding indicates that he referred you to a psychiatrist and indeed Exhibit 4 is a report from Dr Matthew Sellen, who confirmed the diagnosis of Autism Spectrum Disorder, although he put it as Level 2. I might say that having heard evidence from Dr Barth, I accept that the correct diagnosis is Autism Spectrum Disorder Level 1, rather than Level 2.
26I was also referred to a letter from Dr Megan O'Malley of Dentists for Life, concerning some dental treatment.
27Your academic transcript shows that you are a capable and it seems a successful student during the period when you were studying for a Bachelor of Laws degree between 2020 and 2022. In 2022 you either did not continue with the course, or were unable to achieve the same level of success. I note that a number of your grades were Distinctions and some High Distinctions during the period 2020 and 2021. Not surprisingly, given that your trial commenced in January 2022, there are no such results for the 2022 period.
28Exhibit 7 is a report from Dr Matthew Barth dated 11 November 2022. Earlier this year Dr Barth gave evidence before me in this court. I was impressed by his evidence. He confirmed the diagnosis of Autism Spectrum Disorder Level 1 and Attention Deficit Hyperactive Disorder predominantly inattentive type. He also diagnosed adjustment disorder with mixed anxiety and depressed mood, which no doubt has been heightened by the effect of the convictions by the jury and more recently your period of remand in custody pending sentence.
29Dr Barth confirmed that you were able to appreciate that what you were doing was wrong; there was no inhibition of your capacity to appreciate the criminal nature of your conduct.
30The information with which I have been provided by Dr Barth and from the other sources indicate that you are a person of at least average intelligence. You clearly have a capacity for hard and effective work. You were able to obtain the job with the Financial Ombudsman Service and were able to hold that job until your offending was detected.
31Your background has been somewhat chequered, in that during your early childhood you were living overseas. You commenced school in Japan and subsequently attended boarding school in Australia, at a time when your Autism Spectrum Disorder and your Attention Deficit Hyperactive Disorder had not been diagnosed. You were teased, bullied and abused, it seems quite unmercifully. Your plight was ultimately recognised by your parents who moved you from the boarding school. You did much better at the school you attended during Years 11 and 12.
32You have been subjected to a similar kind of conduct during your period of incarceration.
33According to the report of Dr Barth, your relationship with your partner Carolyne, with whom you were living throughout the period of your offending, came to an end as a result of your conviction in these matters and perhaps the attendant stresses that arose from that.
34Your mental impairments will make it much harder for you to cope with your period of incarceration: that is apparent from your experiences thus far and it is reasonably to be predicted that you will continue to suffer a considerably heavier burden of incarceration during the period of your sentence, than a person without your mental impairments. Verdins principle No.5 is to be applied in the sentencing process.
35It is not suggested, and I do not find, that your mental incapacities give rise to the application of any other Verdins principles, although I note that you continue to suffer from your mental impairments, including the anxiety and depressed mood.
36I think the one factor that made it difficult for Dr Barth to drill down into the interplay between your mental impairments and your offending conduct was that you continue to fail to acknowledge your offending conduct. Without enabling Dr Barth to explore with you the facts and the nature of your offending conduct and its motivation, it is clear to me that it was very difficult for him to express an informed opinion as to that relationship. That underscores my inability to find any nexus between your mental impairments and your offending conduct.
37Your continuing denial of the offences and failure to acknowledge your criminal responsibility means that you get no credit for remorse. That is unfortunate, because rehabilitation requires a degree of acceptance of those factors.
38It is difficult without an acceptance of criminal responsibility to be overly optimistic about your prospects of rehabilitation. But they appear to me to be reasonable.
39I think that this experience will render it unlikely that you will offend again. Your period of incarceration will have taught you a particularly stern lesson, given your mental impairments. One hopes that that will ensure that you do not get into any further trouble with the law.
40This offending was very serious. The amount of money involved is not inconsiderable. I do not find that you were motivated primarily by the prospect of financial gain. It is very difficult to discern what your motivation was, but it seems to have arisen from some reaction to what you may have perceived to be the hostile attitude of your victim and his unwillingness to accept your analysis of the facts relating to his case. Whatever the motivation was, to embark on a course of conduct which alleged serious criminal offences against him and which caused him considerable discomfort is to be regarded as very serious.
41In his submissions, Mr Grant points out a number of factors which go to the objective gravity of the offending. Each of the charges of obtaining a financial advantage by deception, Charges 1 to 6, were course of conduct charges and involved the total sum of more than almost $152,000. Whilst it may not have been your intention initially to obtain that advantage, you permitted it to happen and enjoyed the fruits of your conduct during the period of your offending.
42The most serious of those charges is Charge 3, which involved the obtaining of a financial advantage in the sum of more than $120,000 for the security that was provided to you and your then partner.
43Next, the prosecution points out the frequency and duration of the alleged offences, and that there was a degree of sophistication and planning involved in your offending. You were careful in the way that you went about disguising the emails and in the way you constructed the emails to present a credible series of threats and to react to new events. It meant that your employer and the security company involved responded by increasing the level of security and protection that was offered to you and your then partner.
44The value of the financial advantage is significant and the steps taken to conceal your offending by making the written statements to the police were particularly serious. They provided detailed accounts which pointed strongly to serious criminal offences committed by your victim.
45The offending also involved a serious breach of trust given that they were committed against your employer, as well as against your victim in Western Australia.
46You were clever enough to make the accounts given to police in the first five of your statements, the subject of Charges 7 through to 11 inclusive, convincing. They resulted in the involvement of a number of Victoria Police in endeavouring to assist in the provision of security for you. They involved investigators also contacting police in Western Australia, who utilised the equivalent of Special Operations Group to arrest your primary victim and to take him into custody where he was interviewed.
47Western Australian police also arrested and interviewed two of your primary victim's associates. That investigation, like the Victorian investigation, was time-consuming and involved numerous members of the Western Australia police force. There was a significant waste of police time and resources.
48Offences of that nature are to be regarded as very serious, as reflected in the maximum penalties of 10 years' imprisonment for the obtaining financial advantage by deception, and 15 years for each of the perjury offences.
49The bizarre and outrageous story that you told police which led to the making of the statement the subject of Charge 12, led to your undoing because it contained a particularly bizarre series of allegations which stretched the suspicions of those who received them too far. It is perhaps fortunate that you were stopped at that particular time.
50The court is required to denounce offending of that nature strongly, to punish you adequately for your offending, and to offer a measure of protection from your conduct to members of the public, to deter others from committing offences of that nature and to deter you from engaging in that sort of conduct in the future.
51That has to be balanced against the absence of any prior convictions or allegations of other criminality against you. You have a good work record, family support and the support of others in the community.
52I was greatly assisted by the careful submissions of both counsel, the expert opinion that I received and the assistance in seeking to determine current sentencing practice for each of the types of offences that I am dealing with.
53Ordinarily, offences of perjury attract significant terms of imprisonment and I have no doubt that a very significant term of imprisonment could be justified against you for these offences. But I am required to synthesise all of the factors, including your Autism Spectrum Disorder, Attention Deficit Hyperactive Disorder and your other mental impairments and reach what appears to me to be a just sentence, which achieves as far as possible all of the sentencing objectives.
54As will be apparent from the number of hearings that have taken place during this lengthy plea and the evidence of Dr Barth in particular, which I found particularly nuanced and helpful, it has not been an easy exercise for me or for counsel. I stress that the assistance that I received from both counsel has been particularly useful in reaching this point.
55I accept that your period of incarceration to date and the period that you will have to remain in custody has been and will be particularly hard. I accept entirely that you are a particularly vulnerable prisoner, but I have no choice other than to punish you adequately for the offending.
56I would have regarded, if you had been sentenced back in September, a sentence of 12 months' imprisonment with a community correction order as inadequate. That view was consistent with the submissions of Mr Grant. This further period of incarceration whilst we have been seeking further information and in particular the evidence of Dr Barth, has enabled me to reconsider the question of whether it is possible to impose what is known as a combined sentence, that is, a sentence of imprisonment followed by a community correction order.
57With some hesitation I have come to the conclusion that we have reached the point where it is possible for me to do that. The alternative would be to give you a term of imprisonment of a number of years, which would also have had a non-parole period during which hopefully your mental impairments could be addressed. However, I think that given your mental impairments, a more productive way in which sentencing objectives can be achieved and your rehabilitation facilitated can be and should be met by a combined sentence. That is what I propose to do.
58We will come to the detail of that in a minute, but you will appreciate that I cannot impose a sentence which involves a community correction order without your consent and I will be seeking your consent in a few minutes time. But let me first go to the other features of the sentencing orders that I intend to make.
59Angus Trappitt, on Charge 1 you are convicted and sentenced to imprisonment for a period of four months.
60On Charge 2 you are convicted and sentenced to imprisonment for three months.
61On Charge 3 you are convicted and sentenced to imprisonment for nine months.
62On Charge 4 you are convicted and sentenced to imprisonment for five months.
63On Charge 5 you are convicted and sentenced to imprisonment for seven months.
64On Charge 6 you are convicted and sentenced to imprisonment for three months.
65On Charge 7 you are convicted and sentenced to imprisonment for 12 months.
66On Charge 8 you are convicted and sentenced to imprisonment for 12 months.
67On Charge 9 you are convicted and sentenced to imprisonment for 12 months.
68On Charge 10 you are convicted and sentenced to imprisonment for 12 months.
69On Charge 11 you are convicted and sentenced to imprisonment for 13 months.
70On Charge 12 you are convicted and sentenced to imprisonment for 14 months.
71The sentence of 14 months on Charge 12 is the base sentence. I order that three months of the sentence on Charge 3 be served cumulatively upon the sentence on Charge 12. Therefore, the total effective sentence is 17 months' imprisonment.
72In addition, I propose to order that you be the subject of a community correction order for a period of three years which would commence at the completion of your term of imprisonment.
73You will be required to report to the Melbourne Community Correctional Services at 50 Franklin Street, Melbourne within two clear working days after your sentence of imprisonment is completed.
74The mandatory terms of the order are as follows:
a) You must not commit another offence for which you could be imprisoned during the period whilst the order is in force. That means that it is effectively like a suspended sentence hanging over your head, because if you were to commit another offence punishable by imprisonment, then first of all you would be liable for up to three months' imprisonment for merely breaching the order, as well as being resentenced for these twelve offences.
b) You must comply with any obligation or requirement prescribed by Regulation 17 of the Sentencing Regulations, which means not turning up for appointments or for prescribed community work drunk or drug affected or some such.
c) You must report to and receive visits from the Secretary of the Department of Justice or his/her delegate.
d) You must report to the Community Corrections Centre within two clear working days of the order starting.
e) You must let a Community Corrections Officer know within two clear working days of you changing your address or job.
f) You must not leave Victoria without first getting permission to do so from the Secretary or his/her delegate.
g) You must obey all lawful instructions and directions from the Secretary or his/her delegate.
75In addition to the mandatory terms the following terms will apply:
a) You must perform 250 hours of unpaid community work over the three-year period of the order, as directed by the Regional Manager. And I order that 75 hours of treatment and rehabilitation satisfactorily undertaken by you be counted as hours of unpaid community work, for the purposes of this unpaid community work condition. If you fail to comply with this order, the Secretary of the Department of Justice or his/her delegate may give you a direction to perform additional hours of unpaid community work in accordance with the Sentencing Act.
b) You must undergo any mental health assessment and treatment, that may include psychological, neuropsychological, psychiatric or treatment in a hospital or residential facility, as directed by the Regional Manager.
76I have received a community correction report which finds you suitable for an order in those terms. I have also received a report from Forensicare which supports the need for ongoing mental health care. It is in those circumstances that I propose the order that I have just outlined.
77Angus Trappitt, you must realise that if you fail to comply with any of the terms of the order you could be brought back to this court, probably before me, and re-sentenced for these offences, which would almost certainly be a further term of imprisonment, in addition to any further punishment that may be imposed for breaching the order.
78So it is important that you are willing and able to comply with the terms of the order. It will be onerous at times and it is not something that you should be entering into lightly. It is like a suspended sentence hanging over your head which could mean that you have to serve further imprisonment if you fail to comply with its terms.
79No doubt you have discussed this carefully with your counsel. Mr McGlone, do you require any further time to go through it with your client?
80MR McGLONE: I don't believe so. We have actually gone through it a number of times, unless Mr Trappitt wants anything further? I believe he is in a position to provide his consent.
81HIS HONOUR: Yes. Mr Trappitt, if you could just make sure your sound is on, because I am going to ask you to indicate whether you understand the terms of the order that I have described to you.
82OFFENDER: Yes, Your Honour, I do.
83HIS HONOUR: Are you willing to abide by the terms of the order?
84OFFENDER: Yes, Your Honour.
85HIS HONOUR: I take that as an indication of consent and I propose to sign the order. Your consent is noted on the order. I make the order for compensation in the terms set out for $151,979, is that right?
86MR GRANT: Yes, I think that is correct, Your Honour.
87HIS HONOUR: Was there any other order that I need to make?
88MR GRANT: I think that the only other order would be to confirm the pre-sentence detention of 171 days.
89HIS HONOUR: Yes, thank you for that. I declare 171 days of pre-sentence detention as time to be reckoned as served on the sentencing order that I have made.
90Mr Trappitt, I have now signed the community correction order and your counsel will be provided a copy of it. Any other matters?
91MR GRANT: No, thank you, Your Honour.
92HIS HONOUR: I thank both counsel for their considerable assistance in the matter.
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