Director of Public Prosecutions v Van Doorn

[2016] VCC 1513

IN THE COUNTY COURT OF VICTORIA  Revised

(Not) Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR-16-00644

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARTINA MARIE VAN DOORN

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JUDGE:	HIS HONOUR JUDGE STUART
WHERE HELD:	Melbourne
DATEOF HEARING:
DATEOF SENTENCE:	12 October 2016
CASE MAY BE CITEDAS:	DPP v Van Doorn
MEDIUMNEUTRAL CITATION:	[2016] VCC 1513

Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:

REASONS FOR SENTENCE

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APPEARANCES:  Counsel  Solicitors

For the Office of Public Prosecutions

Mr D. O'Doherty

For the Accused  Mr R. Eason

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone [phone]

TC:AF

HIS HONOUR:

1Martina Maria Van Doorn, you have pleaded guilty to seven charges of theft.

The maximum penalty for theft is ten years imprisonment. Your offending commenced on 6 February 2006 and continued until 3 November 2012, encompassing seven calendar years.

2The circumstances of your offending are set out in the summary of prosecution opening, Exhibit 1, which I draw heavily upon for the purpose of my sentencing remarks. You were born on 12 April 1955. You commenced work with Komatsu Australia Limited, the victim in relation to this matter, in 1993, having been transferred from S.E.C. Victoria along with a number of your fellow employees and you concluded your employment in November 2012. At the time of the offending you were employed as the Gippsland Service Administrator at the Gippsland Morwell branch.

3Your duties included reception work, payroll and progress data entry, including completion and pro forma invoicing. You received and invoiced the Loy Yang power work in progress jobs and maintained and updated the Loy Yang power vehicle scheduling service database and provided monthly reports with the regard to the Loy Yang vehicles and items of plant due for service. You ordered and purchased office supplies and employee personal protective equipment and raised the purchase requisitions for branch administration costs and you were the custodian of petty cash tin which was kept in a draw, managing disbursements and reconciliation. You were responsible for the banking of customer cash and cheques and in control of the Gippsland Social Club accounts, deposits and withdrawals.

4Your duties were many and varied. But in particular, in relation to your offending, you had effective control over the petty cash and the Gippsland Social Club accounts. In addition, your duties related to postal services and it is those three areas of petty cash, social club and postal services which you

used to exploit the company by your peculations over this extended period of time.

5Each of the seven charges are rolled up charges in relation to the particular calendar years in which you stole the monies, as set out in the schedules to the indictment. Your thefts were particularly focused on petty cash, then, in order of amounts, stealing from the social club and the Australia Post account. Turning first to the stealing from the petty cash provision. The schedules set out amounts varying up to, but below, $2,000 on generally a fortnightly basis. This fortnightly misappropriation increased in frequency, particularly in the final five months of your employment, to weekly episodes, which I will come to later.

6However, that truly does not reveal the nature of the offending as set out, for example in Schedule A, where the petty cash amount stolen on 1 March 2006 in fact relates to a series of peculations involving either the use of genuine invoices and receipts to create a basis for the allocation of petty cash amounts to you, or the creation of entirely false invoices.

7Thus, each instance as set out in the various schedules of takings from petty cash, in fact involved multiple episodes of you preparing either false documentation or utilising genuine receipts and invoices for false purposes.

8When one looks to the numerous amounts set out in relation to the petty cash peculations over that seven year period and appreciates that each of those amounts involved the multiple use of either genuine documents for fraudulent purposes or the creation of fraudulent documents to support the payments out of petty cash. It is plain that your stealing involved what can only be described as a highly industrious and highly motivated activity. The material that I have been provided with in relation to the petty cash amounts reveals that something in the order of 97 percent involved fraudulent activities.

9Steven Flowers was branch manager at that Gippsland branch. His duties included overseeing works and progress, management of branch employees

and control of the branch budget. That budget consisted of parts and services, sales, petty cash, branch extensions such as utilities and employee work and equipment. You, as Gippsland service administrator, came under his direct supervision. Your counsel has sought to point out that even a cursory examination of accounts for the petty cash reconciliation, as illustrated in Exhibits 2 and 3, would have revealed unusually large and inexplicable sums of money being paid on account of amenities which, it was submitted, ought to have alerted Mr Flowers and management to irregularities. Any audit would have brought sharp focus on your activities and caused it to cease.

10In his statement at p.269 of the depositions which became Exhibit 4 on the plea, he states:

"When I first was appointed to the role of branch manager, Tina made it known that she was displeased with the fact that I had been appointed to branch manager and would often come to me and accuse me of taking work off of her and not valuing her as a long term employee. This seemed to mainly stem from the fact that I began to question some of her invoicing methods, such as what miscellaneous items/costs were attributed to jobs only referred to as miscellaneous on the invoices. Tina generally told me that I did not need to worry about that, but as branch manager, I believed that I did".

11Mr Flowers became branch manager in March 2005, prior to the commencement of your offending in February 2006. It is plain from Mr Flowers' statement and the passage I have referred to, that you, when confronted with your practices, stood up to him and were not in any way deterred from continuing to offend in the way in which you did for the ensuing seven years.

12In short, you endeavoured to and perhaps successfully so, put him off track.

But in the end, whether there be any lack of appropriate supervision, you were trusted and it was because of the trust that others had in you, including Mr Flowers, that your thievery was able to continue and indeed, it is not too far to say, flourish.

13That trust arose, not simply because of the position that you occupied, but also because of your long term employment with the company and with the S.E.C.

beforehand. Employers are entitled to assume that employees such as yourself would be worthy of the trust that had been given to you.

14Your stealing was, approximately, on a fortnightly basis. But more accurately, it probably involved acts of dishonesty on a daily basis in order to effect the theft of no less than $416,715. What you did involved a gross breach of trust and you stole a substantial sum of money.

15As revealed in Schedule G for the year 2012, the amounts that were being stolen from petty cash increased in frequency from earlier periods of time where the amounts involved were being taken on a fortnightly basis, or put more accurately, the petty cash had to be topped up on a fortnightly basis, on average in the past. But your peculations continued at a higher rate, necessitating the topping up of the petty cash and roughly on a weekly basis in 2012, continuing until 3 November 2012.

16On 29 October 2012, you handed Mr Flowers your resignation. Your last working day was 3 November and you took long service leave from 5 November 2012 until 30 November 2012. You stole right up to the last day of your employment and the amount stolen in that last year had on a calendar yearly basis reached a total of $79,246 in that year. The amounts stolen increased over the years from $32,547 in 2005 to $55,300 in 2007 to $57,375 in 2008, going down to $53,894 in 2009, rising again to $67,141 in 2010, rising further in 2011 to $71,208 and finally, as I have said, to the figure of $79,246 in 2012, the year of your resignation.

17On that day, 2 November 2012, Mr Flowers asked you for three things. One, confirmation that all petty cash held at the Gippsland branch had been returned to head office in accordance with instructions from the company's finance department. Two, to provide him with the Gippsland social club account deposit book and statements and three, the return of all branch keys.

18You told him that all petty cash had been returned.  That of course was an

outright lie. You told him that all social club account funds had been returned to head office. Again, an outright lie. You also told him that all the branch keys had been given to another employee Mr Maxwell. That again was untrue, for even by 5 November 2012, the keys had not been returned.

19When questioned as to why the social club funds had been returned to head office you told him that this was as directed by head office. Mr Flowers thought that this was odd, as the funds were from the Gippsland branch and had nothing to do with head office. As a result of his concerns, on that same day he contacted the company's head office and was told on 7 November 2012 that you had not returned any money. He was forwarded copies of the Gippsland branch petty cash reconciliations for September and October 2012, where, upon review, he noticed several discrepancies. One of which was of the amount supplied on the reconciliation forwarded to the accounts office had not been costed against the job.

20The following day, 8 November 2012, Mr John Pounder, chief risk officer of the company's head office in Sydney was advised of the irregularities. He reviewed some of the petty cash reimbursement claims and noted that a number of the receipts were for items that were of a private nature. As a result, further investigations into three main areas of transactions were made, these were: petty cash claims, cash withdrawals from the social club and Australia Post invoices, all three areas which were managed by you. As a result of the suspicions all petty cash claims were examined back to 2006, records prior to 2006 were not available. All these petty cash claims were reviewed with the relevant information recorded on the spreadsheet.

21There was a separate worksheet for each of the 190 claims that were reviewed.

Each expense was listed on the worksheet and categorised into suspicious or business expenditure. If the category was uncertain, it was attributed to business. The social club bank account balance, statements and cash withdrawals were obtained, except for one unsigned cash withdrawal.  Each of

the withdrawals were signed by you.

22Mr Flowers was unable to identify any legitimate purpose for the withdrawals.

The only legitimate expenditure for the social club was the staff Christmas party in December. The social club funds were obtained by the company selling scrap metal and disused parts. The annual cost for the Christmas and associated gifts to staff were something in the order of $1,200, plus Christmas hampers of about $2,000 and other items.

23Between 2006 and 2012, the social club account statement reveals 57 cash withdrawals from that account. All save one is signed by you. There were 51 cash withdrawals which did not fall into legitimate business social club purposes. The amounts of those withdrawals varied from a minimum of $100 up to a maximum of $2,000. The total amount that you took from the social club account amounts to $28,626.

24The third area of your responsibility relating to Australia Post, involved you managing the day to day mail which included picking up mail from the Traralgon Post Office and purchasing any envelopes as required. Mr Pounder requested a number of invoices from the accounts payable department to review the Australia Post invoices. He discovered items of expenditure which were not for business purposes, such as gifts, international letters and parcels, philatelic items, special edition books, writing products and telephony.

25The company did not have a need to send any international mail, yet during the period of 2006 to 2012, there were no less than 74 invoices totalling $27,394. Of this amount, $17,578 was identified as being for your private purposes as opposed to legitimate purposes.

26Those purchases included postcards, greeting cards, numerous items identified as gifts and international letters as I have indicated. As to the petty cash, it was available as needed if, for example, an employee required a particular part to be obtained.  In such cases, a requisition for the part would be taken out and

the requisition signed by a supervisor. If the part was not available in store, then an order was created and the employee could collect the part externally.

27You were frequently involved in collecting such parts. Once the part was collected, a purchase docket would be obtained and returned to the storeman who would upload the purchase and assign it to a corresponding job. If the purchase involved petty cash the employee would obtain a sales docket and return any leftover petty cash to you, who had by then, uploaded the details of the corresponding jobs. Petty cash transactions usually occurred about once, maybe twice a week.

28Outside purchases were generally made from a list of approved vendors.

Authority of the service supervisor was required for the purchase to be made. However if it was for an expensive item if it was cheaper for example, $20, petty cash would be used. In both cases a purchase order was required.

29Petty cash claims for the period between 2006 and 2012 were reviewed. The total of these claims was $379,885. Analysis of those claims indicated that no less than $370,511 was for your personal and non-business purposes. Thus, only something in the vicinity of $9,300 was legitimate petty cash payments.

30You had created false invoices. The fact that they were false invoices was only established when cheques were made with various other businesses, including Clark Rubber, Australia Workwear, The Sound on Wheels, Gippsland Bearing Supplies, Gippsland Automotive Services, Valley Auto Repairs, Mid City Auto and Suspension Centre, BJ Bearings, Morwell Radiator Repairs, Valley Hydraulics, SFJ Automotive and Chris Humphrey Office National, establishing that the invoices that you prepared in those business names were fake. The purchases of course had not been made.

31Some of the invoices had different ABN numbers, unrelated to the particular business or a different ACN number. Other variations were that of address, format of the invoice or reference numbers were incorrect.  In some instances,

businesses did not create invoices for cash sales.

32Indeed some of the businesses for which invoices and "sales" had been created in the names of ANDCAM, Traralgon Exhaust and Gippsland Aluminium Supplies, which had ceased trading or ceased to exist. Again, these invoices covered the period from 2006 to 2012. The total cash taken from the company's petty cash for non-business purposes totalled a sum of $370,511.

33Apart from the creation of false invoices, other items claimed from petty cash were of a more blatant kind, such as food from McDonalds, Woolworths, Safeway grocery items and Michel's Patisserie. Clothing from David Jones, children's clothing, DVDs, items from JB Hi-Fi, Deli 9 and lunches. For those items, the amount was removed from petty cash and the legitimate store receipt provided.

34After an extensive audit by the company, the matter was reported to the police on 20 February 2013. You were interviewed on 30 July 2013, but, as I understand it you did not provide any information in relation to the offending nor were you required to.

35It is plain from what I have said that, typical of offending of this nature, the detection of the offending and the extent of it requires a detailed and exhaustive analysis and assessment of individual documents, such as invoices and the cross referencing of documents with legitimate suppliers. This takes much time. The investigation is and has to be exhausting.

36I do not propose to go into any detail about your financial circumstances.

Suffice it to say that during the period of your employment between 2006 and 2012, your salary in hand amounted to approximately $800 per week. The amounts you stole over that same period amounted to approximately $1,100 per week.

37The hand-up brief consisted of some 21 levier arch folders and the depositions..

The matter was listed for three day committal on 18 April 2016, but was resolved on that day to the seven charges of theft before me.

38You do not have any prior convictions, there are no matters pending and you have since been on bail up to today's date.

39The Court of Appeal in the matter of in the matter of Coral Marie Dyason v The Queen, 2015, VSCA 120. Some of the matters that must be taken into account, in the joint judgment of Justices of Appeal Whelan, Santamaria and Beach, Their Honours, at paragraph 33, state:

"Justice of Appeal Charles with whom President Winneke and Justice of Appeal Callaway relevantly agreed, rejected that submission. He referred to the fact that white collar offenders usually had no prior criminal history and that the prospects of rehabilitation of such offenders were generally very high. He observed that specific deterrence would often not feature largely in sentencing consideration. He said, however, that these features had a tendency to distract attention from the importance of general deterrence".

40Justice of Appeal Charles then said the following in DPP v Bulfin, 1998, 4 VR, 114:

"The motivation to engage in conduct of the kind here under consideration may spring from many sources a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided; greed or the burden of funding an extravagant lifestyle; weakness in succumbing to outside pressures to use deceitful means for business ends; and personal or corporate ambition, to name but a few. Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period of time, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof  will frequently be extreme. Many of  these matters were discussed by this court, similarly constituted, in R v Kostikidis and Mpehelevanas (unreported, Court of Appeal, 12 September 1996); see also R v Cave (1988) 32 A Crim R 484 per O’Bryan J at 487. The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non- parole period; together with a requirement for strong denunciation by the sentencing court".

41Here, you used your position of trust and your abuse of that trust was gross.

You utilised your responsibilities in the three areas of petty cash, the social club accounts and the postal accounts for your own purposes. The sums, as I have said are in total very substantial.

42It is put by the prosecution that you were motivated simply by greed. There is no other explanation for what you did other than greed.

43Your personal history is set out in a very thorough way in your counsel's Mr Dionysius' written submissions and I have made the relevant four pages of that personal history an exhibit in this plea.

44You are now a woman of 61 years of age. You were born in Holland and your parents migrated to Australia in 1958, arriving in January 1959. Eventually, after some moves, your parents purchased their own home in Mt Waverley in 1962. You completed your high school education to Form 5 in 1970 at the local Mt Waverley High School. You were apparently doing very well academically but wanted to get a job, which you quickly found at Foodworks in December 1970.

45After a year, you moved to general insurance in Melbourne in 1971, working in the postal room. You were promoted to Marine Underwriters as the secretary in 1972, where you dealt with insurance covering cargos and ships. It was there that you met your husband George Jackson who was then working as a clerk. You married in 1974. You were compelled to leave your employment because married couples were not allowed to work together in the same firm. You then started a new job with another insurance broker, McNellie Sullivan Insurance Brokers and then moved into your own home that same year in Boronia.

46Apparently your husband was abusive, both physically and mentally and you separated in 1975, but reconciled. Your first child was born in 1976 and you then moved as a family to Sydney where your second son was born. Finally, however, in April 1980 you left your husband after he had threatened you with

a knife. You packed your bags and took your two young children and left to return to Melbourne to live with your parents. Your husband paid irregular maintenance.

47You obtained ministry housing in Morwell in August 1983. You then, despite the young age of your children, started to look for work and in July 1984 commenced employment with the Department of Sport and Recreation on a one year contract. You then obtained employment as a typist with the SEC in Morwell. After two years, you were promoted to transport manager's secretary. In 1993, Komatsu Limited took over the SEC and in that year, you moved to the position of personal assistant to the branch manager of Komatsu Australia. In 1995 to 1996, you ceased being the personal assistant to the branch manager and became the administrative coordinator/clerk.

48You have looked after your children, absent as I understand it, any assistance from your husband. Your father has died. He died in 2005 and your mother suffers from dementia and is now in an aged care facility in Inverloch. You visit her on a weekly basis. Her dementia is plainly from the descriptions I have been provided, advanced, she confusing you with other people and believing other people are you. Her memories have gone back to her childhood.

49Since police interview, you have attempted suicide because of your concerns about your legal situation, in August 2013. Despite all that confronted you, you on 17 April commenced a Certificate III in commercial cookery, having obtained a job with the Paradise Pizza which finished in July 2016.

50In June 2016, after the realisation of your Traralgon home in Breed Street, you were able to repay $190,970, reducing the loss suffered by the company to

$225,746. That property was sold as a result of a freezing order made in the Supreme Court of Victoria on 27 November 2013.

51I do take into account that you have made considerable reparation to the company, albeit pursuant to court orders, which you could have resisted for a

time, by not pleading guilty. In the psychological report of Doris Riccardo which has been tendered, she observes:

"The consequences of the theft committed by Ms Van Doorn has had a major impact on all areas of her life. She lost her house, her employment and the financial security for her senior years".

52A little later she continues:

"It is my opinion that Mrs Van Doorn is very sorry for what she has done in relation to this crime. She regrets her behaviour and states that she has ruined her own life. She explained how she was always a trustworthy and loyal employee for Komatsu for ten years, before she succumbed to the temptation to steal petty cash. Her stealing became addictive where she was unable to resist the constant temptation. It was only by making the decision to leave Komatsu that she could stop her behaviour. She had been gone for months prior to being found out".

53As to the suggestion that the stealing became addictive, I am dubious of this.

You were motivated not by temptation, but by greed. Your decision to leave the company was not in my view to stop your behaviour and if there is any doubt whatsoever about that, one needs only to look to the Schedule G for the year 2012 to see the frequency and the quantity of money being stolen to appreciate that you were not trying to stop your stealing, but increasing it prior to your resignation. Ms Riccardo continues:

"Mrs Van Doorn is still too ashamed to disclose the full details of her crime to her family or friends. She has kept her guilt and fear to herself for almost four years to date. This guilt is contributed to a generalised anxiety disorder and major depression".

54For you, I am satisfied that gaol would be more burdensome than for others in like circumstances. This is because your 86 year old mother, who suffers from dementia, will be separated from you and you cannot attend upon her whilst in custody. It is highly probable that during the course of your period of imprisonment, your mother will die.

55The delay here is of some four years, but not a substantial period of time. Whilst delays of this order are common in cases such as this, but nonetheless, there has been delay in you knowing your fate. You have developed major depression and have made one attempt at suicide.  You have used the period

of time profitably and displayed your continued capacity for work, despite your age.

56You have, as I have observed, no prior or subsequent criminal history. You are entitled to call that to your credit and I take it into account. I am satisfied that specific deterrence, that is deterring you, is of less significance in this case, given that history and give your age and given what I accept, is your remorse for your offending as demonstrated, not only by your statements to Ms Ricarrdo, but also by your pleas of guilty.

57Those pleas of guilty are of particular importance in cases such as this. Had you not pleaded guilty and put the prosecution to its case, it is plain that the trial or trials would have been lengthy and protracted. I estimate that the trial had it proceeded, would have taken something in the order of three to four months.

58In addition, the matter proceeded by a straight hand-up brief. The utility therefore of your pleas of guilty must be fully appreciated and of course, I take that into account.

59General deterrence, deterring others from offending such as you have engaged in is a significant matter. So too is denunciation of this type of behaviour involving, as I have said, a gross breach of the trust placed in you by your employer. Just punishment also must play its role in the sentencing process.

60I have given anxious consideration to what, in total, I consider to be the appropriate sentence. I have moderated the sentence because of my finding that prison will be more burdensome to you than other prisoners in your position. I have therefore made an adjustment downwards in relation to the cumulation on Charge 2 as will be revealed in my following sentences.

61On each of Charges 1 to 7, I sentence you to be imprisoned for a period of 18 months. On Charge 2, I direct that three months of that sentence be cumulative upon the sentence on the base charge, Charge 1.  I direct that six months on

Charges 3 to 7 inclusive be cumulative upon the cumulation on Charge 2 and the sentence on Charge 1. Producing a total effective sentence of four years and three months and I set a non-parole period of two years and three months.

62I state that but for your pleas of guilty, I would have sentenced you to a period of six and a half years and set a minimum non-parole period of four and a half years. There is no pre-sentence detention so I make no declaration. Now Mr O'Doherty, was there any other orders that is sought?

63MR O'DOHERTY: No, we don't seek any further orders, Your Honour.

64HIS HONOUR: Are there any other matters that - - -

65MR O'DOHERTY: There are no other matters in relation to - - -

66HIS HONOUR: Yes.

67MR O'DOHERTY:  - - - this case.

68HIS HONOUR: Yes, remove Mrs Van Doorn please.

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