Director of Public Prosecutions v Turley

[2015] VCC 993

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

AT GEELONG
CRIMINAL JURISDICTION

DIRECTOR OF PUBLIC PROSECUTIONS

v

BEVERLEY JANE TURLEY

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	12 May 2015
CASE MAY BE CITED AS:	DPP v Turley
MEDIUM NEUTRAL CITATION:	[2015] VCC 993

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Harrold	Office of Public Prosecutions
For the Offender	Mr S.J. Tovey	James Dowsley & Associates

HIS HONOUR: 

1Beverley Turley, you have pleaded guilty to four charges of obtaining a financial advantage by deception over a period from December 2005 to January 2010.

2The total amount involved was $950,165.  This amount was made up by many, many fraudulent transactions.  Thus, the four charges are rolled up charges.  The charges relate to three separate bank accounts.  The bank accounts were all connected to a Russell Colwell, though he was not the sole owner or beneficiary of each account, rather he was a trustee or joint beneficiary in respect to some of those accounts.

3These circumstances will be made clearer shortly in these reasons, but the point to be appreciated right from the outset was that there were significant losses suffered by a number of people due to your gross dishonesty.

4You met Russell Colwell in late 2005.  He had, it seems, been a successful businessman in Geelong.  He was married, but in the years up to 2005, his excessive drinking and mental breakdown saw his marriage collapse.

5His business was, or had failed, and it seems he was relying on his significant savings.

6You and he met in Melbourne and commenced a friendship.  He continued to drink excessively and gamble.  As a consequence of his drinking and depression he was hospitalised from time to time.  You became his carer and then his intimate partner.  You had legitimate access to his day to day bank account for ordinary daily expenses.

7However, quickly you dishonestly gained access to other accounts and, in effect, fleeced those to get money for your gambling, your own use, and for using with Mr Colwell in a fast or excessive lifestyle.

8The accounts you gained access to were, firstly, the Rosemary Ferrier Trust Account.  Mrs Ferrier was the mother of Mr Colwell's then wife, Janet. 
Mrs Rosemary Ferrier trusted Mr Colwell to set up and operate an account with directions to him to invest the money so that the funds were available to her, or available for her, as she got old, and for even distribution when she died, between her five children.  Mr Colwell was the sole signatory of the account.  Plainly Mr Colwell was the trustee with important responsibilities to Mrs Ferrier and her children.

9You first embarked on dishonestly transferring money from that account by phone banking, having secured the necessary information to, in effect, breach the security regarding PIN numbers and the like over that account.

10Over a very brief period, from 16 December 2005, to 14 March 2006, in 31 transactions you moved $142,200 from the Rosemary Ferrier Trust Account.  It is notable that these transactions were commenced relatively quickly after meeting Mr Colwell.  That conduct was Charge 1.

11Your dishonesty in relation to this trust account continued unabated from March 2006 up until February 2009, in which $293,380 was moved by the means of internet banking from the trust account.  That conduct was
Charge 2.

12By these methods, and with you protracted dishonesty, the Rosemary Ferrier Trust Account was completely emptied.  Mrs Ferrier died on 5 July 2010.  When the family came to sort out her finances it was discovered that the account held no funds.

13A full police investigation undertaken painstakingly and with great dedication. Application by Mr McKinnon of the Geelong CIU, revealed your methods were to transfer money into various accounts, including Visa cards and day to day accounts held by Mr Colwell.

14Thereafter you further transferred it into your own account or purchased items by Eftpos or credit card, or withdrew cash, or simply used the money at gaming venues in Geelong or most prominently at Crown Casino.  These methods were repeated in relation to other accounts you dishonestly used.                  

15Mr Colwell also operated an account named Pegasus Lodge Account.  In just over one month from February to March 2009, you transferred 75,000 from that account in four large transactions into the Rosemary Ferrier Trust Account.  You then transferred that money out of the trust account for use by you and Mr Colwell, mostly in cash.  Your dishonesty in relation to the Pegasus Lodge account was Charge 3.

16The other account Mr Colwell had was name the Colken cheque account.  This was an account that held the superannuation funds of, I understand, both Mr Colwell and his then wife.  In 20 transactions in an eight month period from 5 May 2009 to 20 January 2010, you withdraw $439,585 from that account.

17To achieve this you employed a range of blatantly dishonest methods, such as forging Mr Colwell's signature, or altering the amounts on cheques after
Mr Colwell had signed it. 

18These were substantial transactions, often of amounts between 20 and $30,000 at a time.  Often they were in quick succession, such as, by way of example, the 142,000 in the month between 6 September 2009 and 3 October 2009, in seven transactions.

19By 14 August 2010, the Colken account was reduced to four dollars.  As noted, it was the death of Mrs Ferrier and the discovery of the empty account which prompted her family, including their family accountant, to raise the alarm.

20When confronted by the accountant, a Mr Terracall, you made admissions to your dishonesty.  You repeated these on 3 September 2010 in your first interview with the police.

21Once all the bank documents were gathered, a second record of interview on 3 November 2011, saw you make "no comment", on legal advice.

22The gravity of your crimes is made evident by the large total amount of your frauds.  Just less than one million dollars.  So, too, the protracted and repeated dishonesty that adds to the gravity. 

23The dishonest methods, ranging from forgery of signatures to misuse of the internet banking system, also are part of my assessment and the conclusion that these are grave examples of this form of dishonesty.

24You used whatever methods were needed, and those methods were as sophisticated as they needed to be to achieve your aim of getting money that did not belong to you.

25Also though I have yet to mention your prior convictions.  The fact that you have a long and serious set of like dishonesty offences makes your offending here, between 2006 and 2009, all the more serious.

26The dimension that makes this offending a bit different to other examples is the fact that you were involved in a relationship with Mr Colwell and you both used the funds to engage in the destructive lifestyle of excessive use of alcohol and relentless gambling.

27It is clear that in terms of gravity and moral culpability, Mr Colwell's poor mental and physical health made him vulnerable.  You were trusted as his carer.  That is an aspect that tends against you.  However, at the same time, Mr Colwell was not the prudent businessman that he perhaps once was.  He was involved in drinking and gambling and, it seems, was careless about his money.

28He had some benefit, if it can be called that, from your dishonesty in taking money that he owned or controlled or was a trustee, in the sense that the money was used by him and, in that sense, it is not the same as many other offences, where persons in trust steal and deceive and use the money belonging to another, solely for themselves.

29That aspect of your offending circumstances tends towards mitigation, certainly as compared to other like offending.

30I take into account also in this area of moral culpability that you, yourself, had mental health difficulties with depression and perhaps a bipolar disorder, which saw you gambling excessively.

31The state of your mental health is not ignored and to a slight degree, moderates your moral culpability.

32Notwithstanding these important unique matters, your moral culpability remains high because you were in a position of trust and knew well
Mr Colwell's vulnerabilities and, importantly, you had in the past regularly broken the law in this manner and had served gaol terms.

33Additionally, this offending was an escalation as it was at a scale far greater than ever before for you.

34Your crimes have had a significant adverse effect on Mr Colwell and his
ex-wife, Janet, and others in her family.  Mr Colwell, I was told, died late last year.  From the medical reports attached to his Victim Impact Statement, it seems his health, including his mental health, had been significantly compromised for a number of years.

35He wrote in his Victim Impact Statement that his depression and alcoholism got worse once your fraud was revealed.  He lost his relationship with his children and grandchildren and he felt great guilt that the money entrusted to him by his ex-wife's mother, was lost, leaving his wife and her siblings without their rightful inheritance.

36Mrs Janet Colwell also wrote in her Victim Impact Statement of feelings of devastation in the loss of her mother's money and her family's superannuation.  The financial loss was obviously very significant and the emotional cost likewise.  Mrs Colwell did no wrong, but she feels guilty and she should not feel that way, but she feels guilty that her siblings lost an inheritance.

37She is now a more wary person, uncertain of the intentions of others.  It is hard for her not to have this saga intrude into her thinking every day. 

38I have taken into account the impact of your crimes on the victims, although
I note in respect of some moneys it was repaid by the banks.

39To understand how you got to where you are, I need to touch on your background.  You are approaching 45 years of age.  You are the adopted daughter of loving parents and siblings.  They supported you throughout what became a protracted proceedings where you pleaded guilty and sought unsuccessfully to withdraw your plea.

40Their continuing support is an important factor that I have taken into account in your favour.  Your endeavour to reconnect with your biological mother was unsuccessful and this set you back.  Your schooling was not easy and you reported being rebellious and unsettled.  You reached Year 11, but left when you fell pregnant.  Your psychological health in your childhood and adolescence was problematic.  A number of psychological reports were tendered on your plea.  You saw a Dr Grech, a treating psychologist in 2015.  His report relies in part of what you spoke to him about.

41You saw Dr Bath, a psychologist, seen for medico-legal purposes, and they also had access to a report of Mr Newton, who you had seen earlier for the same medico-legal reasons.

42Dr Bath's report makes clear that you were prone to exaggerate your problems even after he told you that his testing had exposed what you were doing.  That said, I have concluded that you have had difficulties with your self-esteem and depression as a young person, notwithstanding your family's care and love.

43As noted, you became pregnant by the age of 17.  Your partner was a violent man and you were subjected to his physical and emotional abuse for a number of years.  You have remained dedicated to your son and he remains supportive of you, despite all that you have gone through.

44You commenced offending with forgery, obtaining financial advantage by deception and thefts, from around the age of, it seems to me, 17 or 18.  Your offending then became frighteningly regular, with nine court appearances for many, many offences of dishonesty and deception and forgery in 1988 to 1992 when you were just then 22.

45You received many suspended sentences, community-based orders, youth training centre detention and gaol terms.

46A break in offending occurred from 1992 to 1999 and, again, a break to 2002.  In 2002 you were placed on a short community-based order, but you breached this by serious offending which saw you sentenced to imprisonment on 31 January 2003 by a judge of the County Court.

47The sentence was one of 19 months with a non-parole period of six months.  Your offending that I am dealing with you was shortly after your parole period had ended.

48You are not to be re-punished for your past crimes.  The fact that you have such a long and serious criminal history of like offending is highly relevant to my sentencing task.

49As I have already said, your prior criminal behaviour makes your offending here more serious and your moral culpability higher.  Also your prior history means I must give weight to the need to protect the community from your dishonest propensities.  Also I must give weight to deterrence to you. 

50Ms Turley, you must understand through the penalty I impose, that stern punishment awaits you should you re-offend in the future.  That message must have practical impact in the sense that the term of imprisonment
I impose, leaves you in no doubt of the consequences of dishonesty.

51Finally, your prior history, in combination with the protracted offending here, makes your prospects of reform problematic.

52I have only mentioned your background up until the violent relationship with your son's father.  It seems you were able to separate from that violent partner, and after time in prison you dedicated yourself to your son's upbringing.  You tried to get a qualification in welfare studies at the Gordon TAFE.  You found employment in that area very hard to secure because of your past criminal history.

53You fell into gambling.  You used money dishonestly obtained to gamble with which saw you returned to prison.  You have had a lifelong battle with depression.  The treating psychologist considers that you had - or the diagnosis is one of bipolar disorder and severe anxiety.  Dr Bath considers you have a major depressive disorder.

54There seems no real debate that you have a fragile mental health.  You suffer from depression and anxiety and life is difficult for you.  You are medicated and will have to remain medicated for the foreseeable future, if not permanently.  Prison will be harder for you because of your mental health problems and I have factored that into the sentence to a degree, keeping what the Court of Appeal has said recently in the DPP v Meyers in relation to this topic, as follows:

"Being depressed in gaol is very common and understandable, and in the ordinary case would not justify a reduction in the sentence."

55In the end, the impact of your impaired mental functioning on the sentencing task is that there is a small reduction in moral culpability which, even with that reduction, nonetheless remains high.

56Also your time in prison will be harder, as I have just outlined.  I am not persuaded that in all the circumstances the weight to be given to general deterrence ought be moderated.  It is, of course, that is, general deterrence, a very weighty matter in offending of this kind.

57Your rehabilitation is not overlooked.  However, because of your past and your offending here, I can be no more than very guarded that you will reform.  You will need help beyond the significant efforts of your family.

58To that end, your counsel urge that I should allow for the potential for a lengthy time on parole.  I will return to this shortly.

59There are other mitigatory matters that I must mention that I have taken into account.  Be assured, Ms Turley, that I have factored into your sentence that ultimately there was no trial.  You saved the cost of a trial and the adverse impact that would have had on witnesses.

60Although you endeavoured to change your plea, in the end the utilitarian benefit of the plea will be acknowledged, and your sentence will be less than it otherwise would have been.

61I cannot attribute to you real or genuine remorse and contrition.  You are very unhappy to be where you are, but I do, in this regard, note what you said in your first record of interview, where you accepted responsibility.  I also note what you said to Dr Bath.

62The delay from the discovery of your crimes in August 2010 and your first record of interview in September 2010, until you were charged in January 2013, is a matter that I take into account in mitigation.  It is now five years since you were first interviewed, and the commencement of your offending is over nine years' past.

63The delay has meant you have had this matter weighing on you for too long and in that regard I take into account what was said by Dr Grech.

64By and large the time since you applied to change your plea is not a matter of much mitigation.  But, that said, even that process did not move quickly enough.  In the end the whole period of delay is a factor that I have taken into account.

65Importantly, since your offending up until your remand you did not offend, pointing to the possibility of rehabilitation.

66Your counsel, in concluding his well-constructed and measured plea, urged that the inevitable gaol term allow for the potential of a lengthy time on parole.

67In some circumstances, regular recidivism, including a lengthy parole period which did not see you stop offending would lead to a stern gaol sentence and not much by way of potential parole allowed.

68However, in some cases, the need for a lengthier monitoring and assistance to reform, means the call for a longer period of parole is the most sensible approach.

69In my view, you fall into the latter category, given your problems with depression and gambling.  Dedicated expert assistance from parole officers may give the community the best chance to avoid your dishonest tendencies.

70The prosecution gave emphasis to the matters that I have referred to in assessing the gravity of your offending, the effect of your crimes, the high moral culpability, and the need for significant weight to be given to deterrence to you and to others who might be minded to fleece others of their money.

71Both parties agreed I could impose an aggregate term and I will.  Here, the overall loss, and the overall dishonesty, is the key.  Although there were different people and institutions who have lost, in the end, the transactions you performed, moved money around accounts until you could realise the benefits in cash, Eftpos, credit card, and use in the gambling dens that I have named.

72The total amount of just over $950,000 must be met with a total sentence that endeavours to meet all sentencing purposes, denunciation, deterrence, rehabilitation.  Balancing everything that was raised for you, and against you, until in the end, doing the best I can, I fix upon what is to me a just and appropriate sentence.

73Ms Turley, can you please stand.  Charges 1, 2, 3 and 4, obtaining a financial advantage in the total sum of $950,165 you are sentenced to an aggregate term of imprisonment of five years' and nine months', and I fix a minimum
non-parole period of three years' and six months'.

74You have already served a significant amount of time in prison.  I was told of that at the time of the plea.  I just need that updated.

75MS HARROLD:  397 days, Your Honour.

76MR TOVEY:  That's correct, Your Honour.

77HIS HONOUR:  You have already served 397 days in custody, and that has been reckoned and I ensure that that reckoning is declared as a period of time that is to be taken into account in respect to the sentence that I have just announced.

78I will ensure that this declaration is entered into the records of the court so the prison authorities are left in no doubt that you have already served 397 days of the sentence I have just imposed.

79Had you pleaded not guilty and been found guilty of these crimes, I would have imposed a sentence of seven years' with a minimum of five.

80There are a number of compensation orders that have been sought and
I intend to make those compensation orders in the terms set out by the prosecution.  Are there any other orders?

81MR TOVEY:  No, Your Honour.

82MS HARROLD:  No, Your Honour.

83HIS HONOUR:  Thank you.  Just allow me to deal with the compensation orders.

84The first order I have signed which is indicated by consent for the compensation order in the sum of 95,000 be paid to the ANZ Bank.

85The second order by consent is that a sum of $415,580, be paid to Janet Colwell.

86Finally, again, by consent, an order that a sum of $439,420 be paid by way of compensation to the Westpac Bank.

87Those orders will be signed and copies made available.  You may be seated, Ms Turley.

88The orders are now signed.  There is nothing further?

89HIS HONOUR:  Yes.

90MR TOVEY:  Your Honour may have formally made the order yesterday, my brief requires me to seek a certificate for yesterday.  If that has not formally been ordered, then I would ask Your Honour to ‑ ‑ ‑

91HIS HONOUR:  It was done and, in fact, signed, so I note in the transcript that an application pursuant to the provisions of Appeals Costs Fund; that application is granted and an order signed.

92MR TOVEY:  As Your Honour pleases.

93HIS HONOUR:  Copies be made available to you or your solicitors, as soon as possible.

94I thank counsel for obviously Mr Gibson and Ms Harrold for their considerable assistance in respect of this matter.

95Ms Turley knows that she cannot remain in the court and Ms Turley can be taken.

96(Offender removed.)

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