Director of Public Prosecutions v Van der Heyden

[2016] VCC 1747

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00935

DIRECTOR OF PUBLIC PROSECUTIONS

v

KERRIE VAN DER HEYDEN

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JUDGE:	HIS HONOUR JUDGE DEAN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 November 2016
DATE OF SENTENCE:	18 November 2016
CASE MAY BE CITED AS:	DPP v Van der Heyden
MEDIUM NEUTRAL CITATION:	[2016] VCC 1747

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms H. Bate	Office of Public Prosecutions
For the Accused	Mr R. Kelly	Juliana Smith Barrister & Solicitor

HIS HONOUR: 

1Kerrie Michelle Van der Heyden, you have pleaded guilty to three charges of obtaining a financial advantage by deception contrary to s.82(1) of the Crimes Act 1958 and the maximum penalty for that offence is ten years imprisonment. You also pleaded guilty to one charge of attempting to obtain a financial advantage by deception contrary to s.82(1) and s.321M of the Crimes Act 1958. The maximum penalty for that offence is five years imprisonment.

2You had pleaded guilty at committal mention and I have taken your early plea into account in your favour in mitigation of sentence.  You have no prior convictions, subsequent convictions or outstanding charges.

3A prosecution opening was read to the court and tendered in evidence and your offending may be summarised as follows –

4In May 2011 you recommenced employment with Hartcon Australia Pty Ltd, a company engaged in the installation and construction of steel structures.  In July 2011 you were promoted to the position of construction coordinator.  Your duties included the authorisation of the payment of invoices issued to your employer by suppliers.  One such supplier was Starjan Pty Ltd, a company you had regular dealings with. 

5Between 19 October 2012 and 17 March 2015 you submitted invoices from Starjan that had been falsified by you to Hartcon for payment and authorised payment of them.  The funds for payment of the invoice were deposited into a bank account operated by you and in your name.  Charge 1 on the Indictment concerns eight false invoices totalling $170,000.  Charge 2 on the Indictment concerns six false invoices totalling $87,000.  Charge 3 on the Indictment concerns five false invoices totalling $42,000.  You obtained a total of $299,000 in this manner.  Two false invoices in the sum of $18,000, the subject of Charge 4 on the Indictment, were not paid when your offending was discovered on 9 April 2015. 

6You occupied a significant position of trust with your employer and your offending constitutes a significant breach of that trust.  Your offending was sustained and came to light by chance. 

7The sentencing principles applicable in cases of this nature are well established.  The sentence that I impose must be calculated to deter you and others from offending in this manner.  You must also be punished for what you have done.  You have made no restitution to Hartcon Pty Ltd and its losses have been borne by its insurer.

8When your offending came to light, Hartcon commenced proceedings against you to recover the moneys you have obtained.  In an affidavit sworn by you in those proceedings you stated that the moneys had been expended on renovations to your home, your wedding and honeymoon, financial assistance to your brother and general living expenses.  When you were interviewed by investigative police you made full admissions in relation to your offending but stated that it was to provide financial support to your husband and that you also believed you had been exploited by your employer.

9In my opinion your offending was motivated by a desire to fund in part a lifestyle that you believed that you were entitled to and, accordingly, your moral culpability must be regarded as significant.  I accept that your plea of guilty is evidence of remorse in your case and the character references tendered on your behalf also speak of your remorse; however, you have also sought to attribute in part responsibility to others for your dishonest and criminal conduct and your expressions of remorse are to be considered in that context.

10I now turn to your personal circumstances.  You were born on 19 May 1978 in Gippsland and are now aged 38.  You grew up on the family dairy farm in Longwarry and have four siblings.  Your family life was stable and supportive and you completed VCE at Marist-Sion College in Warragul.  You have been actively involved in your local community for many years and you have also a stable work history principally in business administration.

11In January 2010 you met your husband, Milad Saleh, in Egypt while you were on holiday there.  After visiting him twice in Egypt, you were married in Australia on 17 March 2012.  The marriage was an unhappy one and, after your husband was granted permanent residency in August 2014, you separated permanently in October 2014.  You are now divorced.

12I accept that some of the moneys you obtained from your offending were given to your husband, although, as I have said, the moneys were principally expended to fund a lifestyle that you could not otherwise afford.

13In November 2014, after experiencing constant headaches, you were treated as an in-patient at the Monash Medical Centre for an aneurism that had not ruptured.  No surgery was required and your condition is now stable. 

14You are currently employed by a construction company in Bendigo.

15I have received in evidence a psychological report of Ms Pamela Matthews, a consulting and forensic psychologist, and I accept that you are suffering from anxiety and depression which requires ongoing medication and counselling. 

16You have no children.  You have the close support of your family who attended the court proceedings. 

17In my opinion your prospects of rehabilitation are good but a degree of caution is required in that regard.  I do not believe that you truly understand the seriousness of your crimes and the extent of your persistent criminal dishonesty.

18Your counsel submitted a CCO was the appropriate proportionate sentence in your case, but in my opinion such a disposition would not meet the objectives and purposes for which this sentence is to be imposed.  In my opinion, general deterrence and specific deterrence are important factors in this case and a term of imprisonment is required. 

19I will fix a non-parole period that will provide for your future rehabilitation and the hardship that you will experience whilst in prison.

20Would you stand up, please.

21In relation to Charge 1 on the Indictment, a charge of obtaining financial advantage by deception, you are convicted and sentenced to 18 months' imprisonment.

22On Charge 2 on the Indictment, the charge of obtaining a financial advantage by deception, you are convicted and sentenced to 12 months' imprisonment.

23On Charge 3, the charge of obtaining financial advantage by deception, you are convicted and sentenced to 12 months' imprisonment.

24On Charge 4, the charge of attempting to obtain a financial advantage by deception, you are convicted and sentenced to 6 months' imprisonment.

25The sentence imposed on Charge 1 is the base sentence.  I direct that 6 months of the sentence on Charge 2, 6 months of the sentence on Charge 3 and 1 month of the sentence on Charge 4 be served cumulatively on each other and cumulatively on the sentence imposed on Charge 1. 

26This makes for a total effective term of imprisonment 2 years and 7 months. 

27I direct you serve 12 months imprisonment before becoming eligible for release on parole. 

28I declare that you have served 3 days by way of pre-sentence detention. 

29But for your plea of guilty I would have sentenced you to a total effective term of imprisonment of 3 years and 9 months with a non-parole period of 2 years. 

30You can be seated.

31What is the position in respect of compensation?

32MR KELLY:  The compensation order which is consented to, Your Honour, is in the sum of $10,000, which is effectively the excess.

33HIS HONOUR:  Yes, I have made that order.  Yes, could you remove the prisoner, please.  Thank you.  We will adjourn until half past ten o’clock.

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