Director of Public Prosecutions v Veric
[2018] VCC 1907
•20 November 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR 18-01489
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| VESNA VERIC |
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| JUDGE: | HIS HONOUR JUDGE SACCARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 5 September; 8,9,12 & 16 November 2018 |
| DATE OF SENTENCE: | 20 November 2018 |
| CASE MAY BE CITED AS: | DPP v Veric |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 1907 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Theft – Fiduciary Relationship – Administrator
Sentence:Total Effective Sentence of 12 months’ imprisonment and an 18 month Community Corrections Order to commence following release.
Section 6AAA declaration 22 months’ imprisonment with no minimum term and without a Community Corrections Order.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P. Triandos | Office of Public Prosecutions |
| For the Accused | Ms B. Johnson | Mario Vaccaro Solicitors |
HIS HONOUR:
1Ms Veric, you have pleaded guilty to two counts of theft, each of which carries a maximum penalty of ten years' imprisonment. As we have just discussed, the first count involves a theft of $7,000. The second count involves the theft of $181,488.30.
2The circumstances of the offending are set out in the prosecution opening, which has been modified by agreement. In this instance there is no issue that you, as a trustee charged with the supervision of the assets of your estranged husband, who suffers from significant dementia, wrongfully stole the totality of all his assets, which you applied primarily to your own benefit, with the exception of $60,000 which was applied to the benefit of your son, and $20,000 which you used to buy a vehicle employed to transport the victim of your offending, but which you also employed for your own personal use.
3It is not in issue that you were appointed as the administrator of the victim's estate by an order made by the Victorian Civil and Administrative Tribunal, and that you were aware that this appointment required you always to act in the best interests of your victim, and to notify the tribunal of any money paid out by you in the course of the administration of the victim's estate.
4I am satisfied that you must, in those circumstances, have been aware of the important role you played in guarding the assets of your victim, and that it is appropriate to characterise your offending in this instance as involving behaviour of a type which is very serious when account is taken of the sort of behaviour associated with charges of the type you have pleaded guilty to.
5There is no issue that you pleaded guilty to the charges at the earliest possible opportunity, and that plea entitles you to a significant discount in the sentence which would otherwise be imposed.
6Your relevant history is set out in the report of Dr Sowden, a clinical psychologist who has examined you for the purpose of this plea.
7You were born in Croatia and you are the elder of two children. Your father was a violent alcoholic who sexually molested you when you were young. You left home at the age of 17 and migrated to Australia in 1972, where you married your husband, who is the primary victim of your offending. He was much older than you. And in that relationship, you gave birth to your son, who is now 43 years of age.
8You have a long and stable work history of working in unskilled labouring. You did so until approximately eight years ago, when you completed an apprenticeship as a butcher. You then worked in that occupation until that work proved too heavy for you, at which time you undertook cleaning duties.
9You have always suffered from depression. You have a history of attempted suicide some years ago. You suffer from nightmares and sleep disturbance and post-traumatic stress disorder for many years, all of these conditions arising by reason of your childhood abuse.
10Dr Sowden has expressed the opinion that your history and upbringing had caused you to become a person who is withdrawn and isolated. You told Dr Sowden that during your son's childhood you abused alcohol. You were not there for him emotionally. And Dr Sowden commented that it was likely that your psychological condition rendered you vulnerable to having impaired parenting capacity, and an impaired capacity for stable relationships.
11Dr Sowden opined that you presented with a response style which suggested that your response patterns indicated defensiveness on your part about particular shortcomings, as well as exaggeration of certain problems. She described this issue as being relevant to the accuracy of your self-description, but said that the existence of that tendency did not impact upon her ability to be confident as to the diagnosis of the illness with which you present.
12Significantly, Dr Sowden described your expected behaviour in the following terms:
"She may have been involved in illegal occupations or criminal acts involving theft and destruction of property and physical aggression towards others. She is likely to be egocentric, with little regard for others or the opinions of society around her in her desire to satisfy her own impulses. She may take advantage of others, and have little sense of loyalty even to those who are close to her. Although she may describe feelings of guilt and other past transgressions, she likely feels little remorse of any lasting nature. She would be expected to place little importance on her social role and responsibilities. Her behaviour is also likely to be reckless. She can be expected to entertain risks that are potentially dangerous to herself and those around her".
13Although you have said that you were very sorry for your offending, and Dr Sowden has commented that you wish to have treatment to deal with the issues which may have contributed to that offending, the comments made by Dr Sowden in her report, to which I have just referred, cause me to have concerns about your expressed remorse, and equally your likelihood for rehabilitation.
14Dr Sowden said that in the past you had presented with post-traumatic stress disorder in light of your history of reported sexual abuse by your family, a history of alcohol-dependence disorder, and that you are currently suffering from major depressive disorder of recurrent, moderate severity.
15In my opinion, these diagnoses in no way excuse your offending, but they do give it context.
16Having said that, I am satisfied that you knew what you were doing, and that you chose to steal most of the assets of your husband for your benefit either primarily, for the purpose of renovating your house, as you admitted to Dr Sowden, or for the secondary reason which involved you seeking to try to effectively buy the affection of your son. As to that point, I am satisfied that this was a factor in your offending, taking into account your evidence, which you gave in the course of the contested plea, and the content of Dr Sowden's report, in the course of which she recorded your statement to her that your son hated you.
17I have a significant obligation in this instance to make it clear not only to you, but to other members of the public, that dishonest behaviour by people who have a fiduciary relationship and obligation to others of the type which you undertook in respect of your victim, must not abuse that obligation, and such an abuse will meet harsh punishment.
18You have a relevant history of prior convictions in 2004 for counts involving obtaining money by deception, and counts of undertaking an unauthorised function, for which offending you received a suspended sentence of 12 months' imprisonment, and were placed on a Community Service Order. That history of dishonesty is clearly relevant. It calls into question your general honesty, and to some degree raises issues as to the prospect of your rehabilitation, as do the comments of Dr Sowden, to which I have referred.
19Taking account of all the evidence I am satisfied the most important sentencing factors in this instance involve a combination of denunciation, punishment, and the sending of a strong message to you and to others that fiduciary relationships must not be abused to advance the personal interests of the fiduciary.
20You have been assessed as being suitable for the imposition of a Community Corrections Order. It is recommended by the assessment officer that, should such an order be made, it should contain a requirement that you undergo treatment, rehabilitation and supervision. I note that in her assessment report, the author indicated that the court was considering an order of less than 12 months. This is clearly a processing mistake which has now been rectified.
21There can be no question in my mind of the seriousness of your offending, and that a sentence of imprisonment is the only sentence which is appropriate in this instance.
22Given the seriousness of your offending, I thought long and hard about whether it is appropriate to combine the imposition of a sentence of imprisonment with a Community Corrections Order.
23In the end I am satisfied that the combination of the fact that:
(i) you distributed significant sums of money, which you stole from your husband, to your son, and in doing so did not apply those funds to your benefit; and
(ii) you distributed the proceeds of the sale of your own home to your son, with the result that you have been left with no real assets;
establishes the probability that to some extent your offending was influenced by the demands made upon you by your son for money, and that this, combined with your own perception of yourself as a failed mother whose son hated her has influenced this offending.
24As I have said, it in no way justifies the offending, but it does put it in context, the result being that even though my obligation to make a statement to others which deters them from offending, is a very important factor. The circumstances of your particular offending moderate the influence which that factor should play in my sentencing.
25For all these reasons, I am satisfied that I should impose a period of imprisonment in this instance, which should be combined with the imposition of a Community Corrections Order.
26Accordingly, for the reasons that I have set out, I sentence you to serve a period of imprisonment of 12 months, in combination with a Community Corrections Order, the duration of which will continue for 18 months following your release. This is an aggregate sentence. I am satisfied that your offending in this instance arises out of the one course of conduct.
27If you had not pleaded guilty, I would have imposed a straight sentence of imprisonment in this instance of 22 months. I would not have fixed a minimum sentence.
28Ms Johnson, I need to explain the Community Corrections Order, and I take it that there is no issue that your client will comply with a Community Corrections Order?
29MS JOHNSON: No issue at all, Your Honour.
30HIS HONOUR: All right. So I need to make it quite clear, Ms Veric, that what will happen is that the order will commence upon your release from imprisonment, and it will continue for 18 months.
31You have got to comply with the order and the directions of people who are administering it. If you breach the order, that breach in itself carries the potential of a period of imprisonment of up to three months. And then you will be brought back to me, and I have to deal with the breach, and a number of things could happen. Depending on what has happened and the nature of the breach, I could resentence you with respect to this offending. I might do nothing, or I might vary the order.
32But you should understand that a Community Corrections Order is an important part of this process, and it imposes obligations upon you which you must follow.
33Are there ancillary orders sought?
34MR TRIANDOS: No, Your Honour.
35HIS HONOUR: All right. So I think what we will do is, Ms Johnson, I will show you the order. The conditions will be those recommended by the assessment officer, and they have been included in the order. Is there anything else that I need to attend to in terms of sentencing reasons? I have given the 6AAA indication. I have explained the sentence, and I think I have explained the Community Corrections Order?
36MR TRIANDOS: Yes, Your Honour.
37MS JOHNSON: Yes, Your Honour, there's nothing in that.
38HIS HONOUR: Why don't you take it down and just take your client through it?
39MS JOHNSON: And explain it.
40HIS HONOUR: Now the order requires Ms Veric just to attend the Office of the Community Corrections at 5 Elgin Boulevard Wodonga within two working days of the commencement of the order, which is her release. And Ms Johnson, Ms Veric understands that? I think we had better just explain to her.
41MS JOHNSON: Yes.
42HIS HONOUR: Obviously it has got to be confirmed at some stage, but we had better explain that the address that she attends is the Wodonga office, and she has to attend within two days of her release.
43MS JOHNSON: Two days of her release, yes.
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