Director of Public Prosecutions v Trison
[2022] VCC 233
•09/03/22
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-01861 / CR-21-01863 / CR-21-01864
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LISA TRISON |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 09/12/21 | |
DATE OF SENTENCE: | 09/03/22 | |
CASE MAY BE CITED AS: | DPP v TRISON | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 233 | |
REASONS FOR SENTENCE
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Subject:Obtaining Financial Advantage and Theft from Employer
Catchwords: Obtaining Financial Advantage – Theft – Three different Employers – Arrest and Charge followed by further offending – Offences committed on Bail – Past history of similar dishonesty – Past history of imprisonment – Drug addiction, Lifestyle, Gambling – Plea of Guilty
Legislation Cited: Sentencing Act 1991
Cases Referred to: Worboyes v The Queen [2021] VSCA 169 -- DPP v Zafiratos [2020] VCC 377 -- DPP v Bourke [2020] VSC 130 -- DPP v Caulfield [2019] VSCA 131 -- Belilzia v The Queen [2016] VSCA 21 -- Caruana v The Queen [2011] VSCA 180; DPP v Versace [2019] VCC 1913; DPP v Van Doorn [2016] VCC 1513; DPP v Guy [2016] VCC 1497
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Thomas | Office of Public Prosecutions |
| For the Accused | Ms A. Hancock | Adrian Paull Criminal Lawyers |
HER HONOUR:
1Lisa Trison, you have pleaded guilty to a range of dishonesty offences committed against three different employers between July 2018 and March 2020. The offending represents a gross breach of trust to each of the organisations and the people who employed you.
2Twice you provided false police check documents to your new employers which had the effect of concealing your true past. You then used your position as a bookkeeper or accounts clerk to obtain over $312,000, which you in turn used to fund your drug addiction, gambling, and lifestyle. You obtained that amount of money via 113 separate transactions.
3Of particular concern, despite being caught out by your first and then second employers, and being charged and bailed by police, you continued to regularly offend.
4Of further concern, this is not the first time you have offended in this way. Since 2006 you have spent more than eight years of your life in jail for similar dishonesty. You are now 38 years old.
5Turning to the offending in more detail.
Advance Record Management
6You were employed by Advance Record Management in Corio as a book-keeper between about July 2018 and October 2018.
7After you commenced your employment, you produced a document purporting to be a National Police Check in your name. Later enquiries revealed this document was false, being the National Police Check of another person. That is Charge 5 of Using a False Document.
8In your role with Advance Record Management, you had access to the financial accounts associated with the company, as well as personal superannuation and family trust accounts belonging to the Managing Director, Mr Peter Newland.
9Mr Newland observed that you were disorganized at work. You overlooked invoices and made data entry errors. You would present him with 'urgent' invoices requiring immediate payment to avoid him reviewing them in detail. You deliberately sought to create confusion in order to disguise your criminal behaviour.
10On 26 October 2018 you were dismissed for poor performance. It was only after that time, through an audit, that your dishonesty was discovered and reported to police.
11During the course of your employment, you had made multiple payments from the business and personal accounts of Mr Newland to your own bank accounts through fraudulent paperwork and/or payments. At times you made duplicate payments on invoices, paying a second amount to your own account. At other times you changed the method of superannuation fund payments to conceal the path of payments to your own account via a 'clearing house' which avoided detection by the bank. You created 'ghost' invoices using numbers within the range of a supplier and substituting BSB and account details for your own. You also used genuine documents to create false documents which were then used to make payments into your accounts.
12The charges are 'rolled up', reflecting your multiple fraudulent transactions relating to different entities. Charge 1 of obtaining financial advantage by deception reflects 16 separate transactions relating to Invernesshire Pty Ltd. Charge 2 of obtaining financial advantage by deception reflects eight separate transactions where you directly defrauded Advance Record Management. Charge 3 of obtaining financial advantage by deception reflects a fraudulent transaction relating to Skye Kinross Pty Ltd, and Charge 4 reflects four episodes of theft directly from Mr Newland's personal and superannuation accounts.
13The total amount of money you fraudulently obtained during your employment with Advance Record Management was $95,082.62
14You were interviewed by police on 28 February 2019. You made admissions to the offending, and detailed the methods used to substitute your personal accounts for those of other entities. You admitted diverting funds about once per week for a period of four months.
15You stated the offending was to finance a methylamphetamine habit. There were some substantial amounts of cash withdrawn by you. However, forensic analysis of your accounts shows expenditure on various purchases and 'lifestyle' items, including hotels, dining out, a skydiving excursion, and a trip to Surfers' Paradise.
Barwon Timber
16Only months after being charged with the offending against Advanced Record Management, you obtained employment at Barwon Timber in Breakwater. You signed employment documents as an Accounts Receivable Officer on
24 April 2019 and commenced work shortly after.17In May 2019 a customer overpaid an invoice by $2,663.45. The customer provided the Accounts Receivable department with an email detailing their account details for repayment. You edited the email replacing the customer's details with your own. You then gave a printout of the email to another employee who processed that payment based on the information you provided. Those matters are reflected in Charge 6 of obtaining financial advantage by deception.
18On 7 May 2019, another Barwon Timber client paid the sum of $1315.25 to the firm. You used an EFTPOS machine to process that payment. Shortly afterwards, you refunded the payment and entered your own credit card details for the destination account. Two days later, on 9 May 2019, you used the same method to attempt to obtain the sums of $1368.11 and $13.90. A hold was placed on those transactions by Westpac Bank Merchant Fraud Team. Those three attempts to obtain financial advantage by deception are rolled up as Charge 7.
19After becoming aware of discrepancies arising from these transactions, Barwon Timber investigated and discovered your fraudulent activity. The matter was reported to police in May 2019.
20You were on bail for the offending against Advanced Record Management at the time of this offending. That fact is reflected in the transferred Summary Charge 2 of Committing an Indictable offence while on Bail. That is an aggravating feature of your offending
Geelong Arts Centre
21Despite that offending, and despite already being on bail, you again sought and obtained employment in a financial role. You produced what appeared to be a National Police Check in your name. Later investigations revealed that it was another person's document which you had altered to include your name. That is Charge 8, Using a False Document.
22You were employed as an Accounts Payable Bookkeeper by the Geelong Arts Centre (GAC) between 17 June 2019 and 12 March 2020. You had a range of duties, including administration of contracts database, procurements processes, and accounts payable processing.
23Whilst employed by GAC you made unauthorized transfers to five bank accounts that you operated or were able to access. You did so by substituting the details of those bank accounts for payments or refunds to GAC suppliers or patrons.
24The three charges relevant to this period of employment are again rolled up to reflect a variety of transactions. Charge 9 of theft reflects 75 separate transactions whereby you made unauthorised transfers totalling $200,016.43 to your own accounts, or your husband's account which you controlled and could access. Charge 10 of Theft reflects two occasions when you used GAC funds to purchase goods from Bunnings and JB Hi-Fi. Charge 11 of theft reflects five occasions when you issued false refunds to North Geelong Secondary College, Floorworld, Custodian Travel & Cruise, Christian College. and Aerosport Allstars between
5 September 2019 and 26 February 2020 amounting to $12,964.27.25In the nine months you were employed at Geelong Arts Centre you obtained a total of $213,517.18.
26The offending only came to light when the Chief Executive Officer of GAC became aware of press reports about your previous offending. Police were contacted and an internal investigation and external forensic audit were conducted. These investigations showed the unauthorized transfers to your accounts.
27You were terminated from your position on 12 March 2020.
28You were on bail for the offending against Advanced Record Management at the time of your offending against GAC. In addition, in the middle of your employment with GAC you were arrested, interviewed and charged with the offending against Barwon Timber. That was in December 2019, and yet you continued to offend against GAC for several months.
29You were arrested and interviewed by police in relation to your offences against GAC on 24 November 2020. You admitted that the five accounts in the name of your husband were controlled by you, but you otherwise declined to comment.
30You were remanded into custody on that date and have been on remand since.
Sentencing Principles
31This is serious offending whereby you have repeatedly breached the trust of those who employed you for your own gain.
32Breaches such as this are often difficult to detect. They result in losses to companies and individuals. The impact on those companies and individuals is real. It is financial, but it is also stressful for those involved. It diverts energy away from the operations of the business and into audits and examination of financial systems. It has the capacity to create reputational damage.
33The sentence I impose must deter others from committing such offences. It must announce the community's denunciation and it must justly punish you. In your case it must seek to specifically deter you from further offending in this way.
Objective Gravity
34In determining the objective gravity of your offending, I take into account the following features.
35First, there are three sets of offences here reflective of offending against three separate employers. That fact in itself elevates the overall seriousness of your offending.
36Second, on two occasions you were arrested, interviewed, charged and bailed and yet you continued to reoffend. That is an aggravating feature of the latter two sets of offences. It is bewildering that you would deliberately seek out work in a financial capacity knowing you have just been charged for defrauding a different employer.
37Third, while I view the offences committed against Barwon Timber as opportunistic, the same cannot be said of your offending against Advance Record Management or Geelong Arts Centre. In both of those cases your offending was deliberate, pre-meditated and repetitive. In each case it began very soon after you were employed. At Advance Record Management you created an atmosphere of disarray in order to disguise what you were doing. You totally abused your access to financial information and systems in order to divert funds to yourself. And you employed a variety of methods to do so.
38Fourth, the funds you obtained have been spent on lifestyle items, along with drugs and gambling. There was not a 'need' component to them. Spending on drugs and gambling cannot excuse such dishonesty. Having said that, I accept the destructive power of both of those addictions were operative forces on you. I accept that you withdrew large amounts of cash and that a significant portion was spent on drugs. Similarly, you attended Crown Casino where you would gamble, and a large number of transactions show payments to TAB Ltd, Ladbrokes, and BETEASY Pty Ltd.
39Fifth, the amounts obtained are reasonably substantial, over $95,000 from Advance Record Management and significantly, over $200,000 from Geelong Arts Centre. That represents misappropriated funds of over $16,400 per month being diverted to yourself.
40Sixth, in relation to Advance Record Management, you stole directly from
Mr Newland's personal funds, including his superannuation fund.41Seventh, your offending represents over 110 separate occasions in an 18 month period when you defrauded or attempted to defraud your employer. That demonstrates the frequency of your offending.
42For those reasons, in my view, your offending against Advance Record Management and Geelong Arts Centre are serious examples of this type of dishonesty.
43Such offending must be met by a term of imprisonment.
Personal History
44You were born Lisa Tyssen on 27 July 1982 in Queensland.
45Your father was a mechanic. Your mother worked as an artist, then stayed at home performing home duties, and more recently worked as a kitchen hand.
46You describe both of your parents as 'difficult'. Although you felt loved by them, your relationship with them has not been easy, and perhaps their relationship was strained. When you were around 16 years of age and midway through Year 12, your father left you and your mother. You and she relocated to Melbourne. Soon after your father followed you to Victoria and ultimately your parents reconciled.
47You attended multiple primary schools in Queensland. After relocating to Melbourne, you attended a secondary college and a Catholic Girls' College in Altona where you remained until midway through repeating Year 12. You then did two years of legal studies at VUT in Footscray.
48During those studies and when you were 19 or 20 you became pregnant. You have a 19-year-old son. You were in a relationship with his father for approximately 12 months. You describe him as an abusive man. You had intended to adopt out your son and for that reason did not tell your parents you were pregnant until the baby was born. They insisted you keep him. His father left you and returned to Turkey when your son was a baby.
49As a result of your pregnancy, you had to stop your legal studies. Later you undertook and completed a Bachelor of Business Accounting via distance studies from the University of South Australia.
50When your father was approximately 45 years old he was jailed for fraud. He had a heart attack while in custody and died. You were 22 years old and at that time were a single mother to your young child.
51Following your father's death your mother was experiencing trauma. She became depressed and angry. Your relationship with her was very turbulent and you were in and out of contact.
52You have two brothers and a sister. Your 36 year old brother intermittently works as a shed builder. Your 35 year old brother lives in Queensland and works as a tyre fitter. Both have had problems with alcohol and drugs and have spent time in jail. Your 34 year old sister lives in Queensland and is raising three children. She has significant mental health issues.
53You are now married, having met your husband in approximately 2017. You lived together for approximately two years and married in 2020 after this offending.
54Your husband is aged 32. He is employed full time as a chef. He has no prior criminal history, nor any problems with drugs or alcohol. Since your remand he has been in a parenting role supporting your son who lives with him. During your offending you managed to hide your drug addiction from him.
55That addiction started with cannabis use for about a year when you were 14 years old. When you were 17 and 18, you intermittently used amphetamines, ecstasy, and cocaine. Your real downfall began when you started using methylamphetamines. In the circumstances of the birth of your son and your relationship breakdown, and the subsequent death of your father, that usage increased and you developed a serious addiction. That addiction has dogged you throughout your adult life and has also led you to gambling.
56Despite periods of abstinence in custody, you have relapsed repeatedly and continued to be dependent on those illicit substances.
Prior criminal history
57You have a most concerning history of criminal offending commencing in 2004. On six separate occasions you have been dealt with in both the Magistrates' Court and in this Court in relation to approximately 100 dishonesty offences.
58In 2004 you were given the opportunity to undertake a Community Based Order, which you breached by further offending. In 2006 in this court, you received a total effective sentence of 19 months' imprisonment with a non-parole period of eight months. You breached parole within days by committing further offences where you misappropriated over $500,000. For that offending you were again before this Court in 2008 and were sentenced to a total effective sentence of five years imprisonment with a non-parole period of three years. You had already served approximately a year on remand.
59In sentencing you, Her Honour noted that the monies stolen were used to buy luxury lifestyle items including jewellery, clothing, and vehicles. Psychological reports noted your intelligence and the fact you were aware that what you were doing was wrong. At that point in time, you were expressing a desire to better understand your offending, and to address your drug addiction and learn relapse prevention strategies. You were talking of inpatient rehabilitation.
60Despite those expressed intentions and that extended period in custody, you reoffended, committing 49 deceptions for which you were sentenced in the Magistrates' Court in 2013 to 15 months' imprisonment with a non-parole period of eight months. You again breached parole.
61You are not to be sentenced for your prior criminal offending. But of course, it is relevant to my assessment of the need for a sentence which specifically deters you from further offending. It is relevant to my assessment of your prospects of rehabilitation, and it is relevant to the need for a sentence directed at community protection. In relation to each of those sentencing principles, your past history of repetitive and unrelenting dishonesty in the context of your employment is most concerning.
Prospects of rehabilitation
62Your counsel conceded that given your prior history, I should have significant reservations about your prospects of rehabilitation. That is so. Your persistence in seeking out employment which places you directly in the path of a temptation you seem unable to resist is alarming. It demonstrates either a complete lack of insight or a determination to obtain funds which are not yours.
63You told Mr Cummins that you are embarrassed and regretful about your offending. You expressed remorse while acknowledging that during your offending you knew that what you were doing was wrong. You understood, if apprehended, imprisonment would be the only outcome.
64You stated the one thing you hoped the court would take into consideration in sentencing is that you remain very motivated to undergo residential drug rehabilitation. While it is easy to be sceptical about those statements, given you have said those things before, I do take into account that during your remand you have made application for and been accepted by two residential rehabilitation programs. You have not previously taken those steps, nor undertaken such programs, nor received any mental health treatment for your dependency on drugs.
65I take into account the protective factor of your current relationship. Although you and your husband have been in a relationship throughout the course of your offending, it is apparent that he was not aware of either the extent of your struggle with drug addiction, nor of your dishonesty.
66When you were working for Advanced Record Management, you and your husband were not living together as you were having relationship problems. You had met before you were breached on parole. After imprisonment you returned to live with your mother and your relationship with your now-husband was strained. Once remanded, it took you two weeks to call him and tell him about your offending. He is now fully aware of your offending. He has written in support of you. He remains committed to you and to your son. He has stated that you need to face the consequences in court and at home to build the trust back for your family.
67Unlike many offenders with significant histories of fraud offences, you have not been diagnosed with a personality disorder or other mental health condition which would impede your capacity for rehabilitation.
68I take into account the fact that you consent to the making of two compensation orders in favour of Advance Record Management and Barwon Timber and that there is some evidence you re-directed approximately $12,000 back to GAC.
Pre-Sentence Detention
69You were remanded into custody on 24 November 2020. In total you have spent 471 days in custody.
COVID-19 Pandemic
70I take into account the fact that your remand has been during the COVID-19 pandemic. That represents possibly the most difficult time for prisoners in Victoria in the modern era. The prison setting has become a more onerous one. You have had only limited visits with your husband and your son. Access to remote contact with family and friends via iPads and the like are limited due to demand, although you have managed to have regular phone calls.
71Education and rehabilitation programs have at times been suspended and work is limited. There have been periods of lockdown. As with the broader community, prisons are places of heightened anxiety in the COVID-19 setting. Prisoners, however, are unable to make autonomous choices about social contact and distancing. Higher Courts have stated that the difficulties of time in custody during the COVID-19 pandemic must been reflected in palpable discounts in sentencing.[1]
[1]Worboyes v The Queen [2021] VSCA 169
Plea of Guilty
72You pleaded guilty to these charges at an early opportunity and prior to any witnesses being called to give evidence.
73I take into account the utilitarian benefit of your pleas. The community is saved the cost and time of a criminal trial.
74I also take into account the particular benefit of pleas of guilty in the context of the COVID-19 pandemic where there is significant trial backlog.[2]
[2] DPP (Vic) v Zafiratos [2020] VCC 377; DPP (Vic) v Bourke [2020] VSC 130
75It was submitted that your plea is evidence of remorse. I have read your letter to the court carefully. You express there your shame and embarrassment for your offending. You do express your sympathy for and understanding towards your victims at a financial and personal level. I accept that is a true expression.
76I have read your statements about the shame you are bringing on your family, about the fact you have let down your son and been a 'disgraceful', to use your word, example to him. You say you are now at an age where you understand you must address the issues which underlie your offending. In these courts we do see people reach a level of maturity where they are able to turn their lives around. The proof will be in the pudding. For the sake of the community, you must follow through on your stated intention to undertake long term rehabilitation on your release from custody. It is a matter for you whether you can do that. I accept at least your intentions this time around are earnestly held.
Maximum Penalties
77I have given consideration to the applicable maximum penalties of 10 years' imprisonment for the theft and deception charges, including use false document, and five years for the attempted deception. The maximum penalty for committing an offence on bail is three months' imprisonment.
Current Sentencing Practices
78I have taken into account current sentencing practices and have considered various sentences in other cases and the summaries provided on the Judicial College of Victoria website.t[3] As always there are lesser and greater aggravating features of the offending and differing personal circumstances for each offender. Ultimately, I am required to impose a just sentence and that is what I have endeavoured to do.
[3] See for example DPP v Caulfield [2019] VSCA 131; Belilzia v The Queen [2016] VSCA 21; Caruana v The Queen [2011] VSCA 180; DPP v Versace [2019] VCC 1913; DPP v Van Doorn [2016] VCC 1513; DPP v Guy [2016] VCC 1497 and Sentencing Advisory Council Sentencing Snapshot No.254 April 2021
Victim Impact
79What is clear is that white collar crime where a fraud is perpetrated on an individual or a business must be met by significant punishment. That is particularly so where an offender uses their position of trust to perpetrate the deception.
80There are victims at the end of these offences, people who have worked hard to build their businesses and to build trust with their clients and suppliers. In the case of the Geelong Arts Centre that is an organisation which depend on funds from patrons. Your offending against those victims has caused them not only inconvenience but financial and reputational loss.
81That is articulated clearly in the victim impact statement of Mr Peter Newland. He describes the anger and disappointment he felt. He says client confidentiality is his company's chief priority and is constantly communicated to clients and the workforce. In the face of those principles, the core values of his company of integrity and trust had been grossly breached by you. Plans for expansion were paused as the implementation of tighter financial controls and the handling of sensitive information for their clients occurred. Mr Newland described the ripple effect not just for his business, but for his valued staff and for his own family. Happily, they have had a positive recovery; however, it has been a challenging and stressful experience which has made generally him more wary.
82I take into account that an order for compensation will be made against you in favour of both Advance Record Management and Barwon Timber.[4]
[4] In relation to GAC it appears $12,572.62 was redirected into the accounts of GAC suppliers. That could not be verified. It also cannot be verified whether any other payments have been made. Due to the time and cost of investigating those matters it is unclear the final amount outstanding to GAC. As such no compensation order has been sought by the Prosecution.
Concurrency and Cumulation
83There are three sets of offences here relating to each period of employment.
84In my view, the most serious of the charges is Charge 9 of theft from the Geelong Arts Centre. I reach that conclusion on the basis of the number of transactions it reflects, on the amount of money misappropriated, on the basis that the offending covers a period of approximately nine months, and due to the fact you were already on bail for the two other sets of offending.
85In determining the amount of cumulation and concurrency for each set of charges, I take into account that each set of offending came about by virtue of your position within each company. Your role allowed you access to finances and enabled you to commit the offences. Although at times they are committed via different methodology, in my view it is appropriate to impose an aggregate term of imprisonment for each set of offending.
86Equally, in my view, there must be a degree of cumulation reflecting each individual organisation as a victim. That must be so, particularly given the fact you were charged and bailed and yet continued to offend.
Sentence
87On Charges 1, 2, 3, 4 and 5 regarding Advance Record Management you are convicted, and I impose an aggregate sentence of two years' and eight months' imprisonment.
88On Charges 6 and 7 regarding Barwon Timber you are convicted, and I impose an aggregate sentence of 10 months' imprisonment.
89Oh Charges 8, 9, 10 and 11 regarding Geelong Arts Centre you are convicted and sentenced to four years' and eight months' imprisonment. That is the base sentence.
90On the summary charges, Charge 2 and Charge 84 of committing an indictable offence while on bail you are convicted and sentenced to three months' imprisonment.
91I direct that 14 months of the sentence on Charges 1, 2, 3, 4 and 5, three months of the sentence on Charges 6 and 7, and one month on the related summary charges be served cumulatively on the base sentence. The total effective sentence therefore is one of six years' and two months' imprisonment.
92I direct that you must serve a minimum term of four years' and six months' imprisonment before becoming eligible for parole.
93I declare that you have already served 471 days of pre-sentence detention and that that period should be reckoned as having been served against this sentence.
94I declare pursuant to s6AAA of the Sentencing Act 1991 that but for your plea of guilty, the sentence I would have imposed would have been one of eight years' and five months' imprisonment with a non-parole period of six years' and six months' imprisonment.
95I make the two orders for compensation. Are there any matters to raise, counsel?
96COUNSEL: No, Your Honour.
97HER HONOUR: All right, thanks very much. That concludes the matter. Thank you, we will stand down.
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