Director of Public Prosecutions v Walshe
[2023] VCC 309
•6 March 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01320
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| FRANCES WALSHE |
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| JUDGE: | HIS HONOUR JUDGE LAURITSEN |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 16 February 2023 |
| DATE OF SENTENCE: | 6 March 2023 |
| CASE MAY BE CITED AS: | DPP v Walshe |
| MEDIUM NEUTRAL CITATION: | [2023] VCC 309 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Charges of Theft and one charge of obtain a financial advantage by deception – employed at Melbourne High School as business manager stealing monies from the school – altered bank account statements to hide payments into bank account –– total amount $432,546.88 – breach of trust between employer and employee over ten years – offending occurred in context of gambling addiction – engagement in gambler’s counselling – diagnosis of major depressive disorder, generalised anxiety disorder, alcohol use disorder and gambling disorder – experiences of family violence – aged 65 – general deterrence important sentencing factor – high culpability – good character – very good prospects of rehabilitation – remorse – early plea of guilty – Verdins
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Weybury [2018] VSCA 120; Worboyes v R [2021] VSCA 169; R v Verdins [2007] VSCA 62; DPP vHitchener [2016] VCC 1844; DPP v Morton [2019] VCC 342; DPP v Mauger [2021] VCC 860; DPP v Cetrola [2018] VCC 1929; DPP v Amerasekera [2019] VCC 1833; DPP v Chen [2017] VCC 735; DPP v Harlow [2020] VCC 1336; DPP v Naughten [2018] VCC 1758; DPP v Peirce [2018] VCC 1571; DPP v Zanin [2020] VCC 963; DPP v Woolley [2021] VCC 479; DPP v Milton [2019] VCC 2019; DPP v Guy [2016] VCC 1497; DPP vDouglas [2017] VCC 622; DPP v Jones [2018] VCC 1459; DPP v Saad [2019] 1466; DPP v Sands [2018] VCC 1790; DPP v Horne [2020] VCC 954; DPP v Brown [2020] VCC 1522; DPP v Webster [2017] VCC 1825, DPP v Bezuidenenhout [2016] VCC 1070; DPP v Howard [2018] VCC 967; DPP v Kane [2017] VCC 1741; DPP v Kirakopoulos [2017] VCC 1297; Maddock v R [2020] VSCA 271; DPP v Caulfield [2019] VSCA 131; Malinikas v R [2016] VSCA 112; Thorpe v R [2016] VSCA 158; R v Galletta [2007] VSCA 177.
Sentence:Total effective sentence of two years' imprisonment with a non-parole period of 14 months’ imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Fetherstonhaugh | Office of Public Prosecutions |
| For the Accused | Mr H. Rattray | Balmer & Associates |
HIS HONOUR:
Introduction
1Frances Walshe, I propose to sentence you to a total of 24 months' imprisonment. I will set a non-parole period of 14 months' imprisonment.
2You pleaded guilty to 10 charges of theft and one charge of obtaining financial advantage by deception. The circumstances of the charges are set out in Exhibit A, which is a document entitled 'Agreed summary of prosecution opening for plea hearing'. As the title suggests, you agree with its contents.
Circumstances
3Between 2012 and 2021, you were employed as the Business Manager of Melbourne High School. You started employment with the school in 1994 as an assistant bursar.
4As the Business Manager, you had full access to the school's bank accounts. Owing to an oversight, you were able to make payments and transfers from those accounts without another staff member or the school's council knowing or authorising the payments or transfers. This is known as the 'single tier authorisation method'. Its use is contrary to the Finance Manual of the Department of Education and Training.
5The process of detection started with the new Principal of the school. Through the Department, he was aware of the possibility of the existence of poor financial governance at the school. He was determined to investigate.
6His investigation was not assisted by you initially. You dismissed his concerns and told him the existing policies and procedures made his job easier. After some months you gave him the security token which enabled him to access the school's bank accounts. After gaining access, he changed the process such that you were no longer a signatory to payments or transfers.
7The principal worked with the Department and discovered errors in the school’s financial documents. By 11 November 2021, they were in a position to confront you. At a meeting that day, having been told of transfers to a particular bank, which were not recorded on the CASES21 database, you admitted stealing monies from the school. You resigned after the meeting.
8Later that day, the Principal reported the matter to the police. Later again, it was found you had altered bank account statements to hide your payments to your bank account.
9On 28 December 2021, you were arrested and interviewed. You answered 'no comment' to most questions but, nevertheless, admitted having a gambling problem.
10The first 10 charges are charges of theft. Each charge relates to a calendar year, starting 1 January and ending 31 December, between 2012 and 2021. The amounts stolen vary from year to year; the lowest being $16,779.66 in Charge 6 and the highest, $67,462.13 in Charge 8.
11Between January 2016 and December 2021, on 10 occasions, you caused monies to be paid by others to your bank account. The total amounts involved are $77,034.79. This constitutes the circumstances of Charge 11.
12Through 264 transactions, the overall amounts involved in the charges is $432,546.88. You have made no restitution.
Criminal history
13You have only one appearance in a criminal court. On 19 March 2009, you were convicted of driving with greater than the prescribed concentration of alcohol in your blood and breaching a condition of an alcohol interlock device. An aggregate sentence of one month's imprisonment was imposed but wholly suspended for 12 months. Your licence to drive a motor vehicle was cancelled and you were disqualified from obtaining a licence or permit for 11 months.
14The conviction for breaching a condition of the alcohol interlock device means you had an earlier involvement with drink driving even though it does not appear on the police criminal history document. The imposition of a suspended sentence of imprisonment is a significant penalty. It means the offences deserved imprisonment but for a reason or reasons it was appropriate to suspend the sentence. It appears the sentence deterred you from committing further traffic offences. However, it did not deter you from committing these offences.
Psychologist
15Carla Ferrari is a forensic psychologist. At the request of your solicitors, she interviewed you on 7 December 2022 and reported.[1]
[1] Report dated 29 January 2023.
16Using various psychometric tests and the Diagnostic and Statistical Manual of Mental Disorders, 5th edition, Ms Ferrari diagnosed you as suffering from a major depressive disorder, a generalised anxiety disorder, an alcohol use disorder and a gambling disorder.
17The major depressive disorder was recurrent and of moderate severity. The gambling disorder was in partial remission.
18According to Ms Ferrari, you experienced periods of the depressive and anxiety disorders while coping with stresses in your life including violence to you by your first husband and his violence to your daughter, both after separation. These disorders re-emerged during your second marriage owing to your husband's psychological and employment difficulties.
19Generally, depression and anxiety impair a person's ability to think clearly. These states contributed to your drug and alcohol use and have a part to play in gambling. The alcohol use also played a part in your gambling by lessening your self-control.
20Ms Ferrari considered you are low-moderate risk of re-offending. She did not explain the degree of risk involved in categorising you in that way but noted, somewhat incorrectly, your lack of criminal history, that you do not have a criminal beliefs’ system, you no longer work for the school, you have stopped gambling and are engaged in appropriate treatment for gambling. You have the support of your family. However, your psychological conditions remain untreated, as does your drinking.
21She made recommendations for future treatment and, subject to your consent, I would provide Corrections Victoria with a copy of Ms Ferrari's report so her recommendations can be assessed and acted upon while you are in prison.
Personal
22You are now 65. You are the youngest of three sisters. Your family was close even though your mother was a 'very difficult' person. You were close to your father. Your mother is now 93 but your father died 15 years ago. You have always had a close relationship with your sisters.
23After completing Year 12, you started a computer programming course, which you did not complete because you met your husband and became pregnant. This was your first marriage, which produced your daughter, Becky. You separated in 1987 after 10 years of marriage and subsequently divorced after which, you undertook and completed a diploma in marketing.
24You remarried. The marriage lasted 20 years until 2012. There are two sons, Charlie and Teddy. Your husband had erratic employment due to a psychological problem, agoraphobia. The marriage ended after your husband travelled to the Philippines and returned to announce he had met a Filipino woman whom he intended to marry. Interestingly, as you told Ms Ferrari:[2]
She recalled feeling relieved that she would no longer have to put up with his financial instability, particularly given their children were now adults.
[2] At [42].
25Despite this, you and he have remained friends.
26You trace your gambling to the social isolation due to your husband's agoraphobia and his unwillingness to socialise. There was a gambling venue across the road from your home. Visiting it gave you social contact, a distraction and some relief from your depression and anxiety.
27In 1994, you obtained employment with the school, initially as an accounts payable officer and then, in 2001, as the Business Manager.
28When you realised the detection of your dishonesty was imminent, you contemplated suicide, but the fact of your family prevented you from doing so.
29You have cataracts in both eyes. The condition particularly affects the right eye. It prevents you driving at night. You are on a waiting list for surgery to that eye.
30Your gambling started in about 1991 after the introduction of poker machines in this State. Initially, you would lose $50 a month but it grew to $1,000 a month. By then, you would continue playing even after you won and until you ran out of money. You gambled your salary and stole to pay bills, including your mortgage repayments. To Ms Ferrari, you make that distinction as though it makes a difference.
31With the appointment of a new principal of the school, you realised your dishonest behaviour would be discovered. This realisation caused you distress, so much so, as I have said, you thought about suicide.
32In part, you attribute your gambling to loneliness and boredom and seeking company and distraction in an unhappy marriage with your second husband.
33The other part was the financial pressure through the responsibility you assumed for your family, including after your separation, your second husband.
34In November 2021, you started attending counsellors through Gamblers Help. Despite this help, in March 2022, you gambled again. You had accessed money from your superannuation fund to buy your unit. With the money left over, you gambled.
Gamblers Help
35Since April 2022, you have attended a programme called 'Gambler's Help Therapeutic Counselling' at La Trobe Community Health. Earlier, you had been involved in the same programme in Melbourne.[3] By 21 December 2022, you had attended 23 counselling sessions at La Trobe Community Health.
[3] Reports dated 7 July 2022 and 21 December 2022
36You and your counsellor have explored strategies which enable you to avoid gambling. You have joined a mentoring programme called 'The Peer Connection Support Program'. It links you with someone who has successfully ceased gambling.
37You have achieved success with the programme. As the counsellor, Jacinta Crealy, noted in her report:[4]
Fran has developed a stronger sense of self-awareness about her motivations to gamble and subsequently feels more able to use effective self-talk to control her gambling urges. She tested this recently attending a venue for a meal and was able to leave the venue without gambling. Fran has been unable to do this in the past.
[4] Report dated 21 December 2022.
References
38Both your son, Charles and your daughter mention your remorse for your offending. Your daughter mentions your painful osteoarthritis and its deteriorating state. She wonders how you will manage in prison. Both she and Charles are convinced you will not re-offend.
39Your longstanding friend, Ms Heap, describes a side of you that is not revealed elsewhere, as a mother and as a friend. She speaks of your shame and remorse.
40Another friend, and fellow employee at the school, Ms Peterson, also speaks of your remorse. Ms Peterson remembers you as a fair, compassionate and friendly person with a great deal of patience.
Discussion
Purposes
41Section 5(1) of the Sentencing Act 1991 (the Sentencing Act) sets out the purposes for which sentences may be imposed:
(a) to punish the offender to the extent and in a manner which is just in all of the circumstances;
(b) to deter the offender or other persons from committing offences of the same or a similar character;
(c) to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;
(d) to manifest the denunciation of the type of conduct the offender engaged in; and
(e) to protect the community from the offender.
42Each of those purposes are engaged in your case. Of particular importance is general deterrence because your offending involves a breach of trust which exists between an employer and employee. In your case, by circumstance, you were placed in an unusual position, which you abused over many years and involved a large amount of money.
43The Director's counsel submitted there is another aspect to trust. It is the trust the wider community has or should be able to have in you in connection with the administration of an educational environment that was in receipt of public funds. Not unnaturally, there is no evidence to support this submission, but I doubt there will be a withdrawal of students from the school as publicity of your dishonesty spreads. I daresay parents of students, past and present, may be upset by your dishonest appropriation of part of their voluntary contributions. I will give this consideration little weight.
44As will appear, the need for specific deterrence and protecting the community from you assumes a lesser importance because of your prospects of rehabilitation and the unlikelihood of further offending.
45Section 5(2) of the Sentencing Act sets out matters which are to be taken into account when relevant.
Gravity of the offending
46The charges cover dishonest behaviour over a period of almost 10 years and involve 264 transactions. There is a schedule for each of the theft charges. The schedule sets out the individual transactions and the amounts involved. For example, Schedule 1 to the first charge specifies 31 transactions totalling $26,769.83. The size of the transactions vary between $1,494.86 to $60.29. The total of the 11 charges is $432,546.88. For individuals in positions of trust, this is a large sum.
47Your counsel raised the issue of the sophistication of your methods. They may not have been as sophisticated as some but were sufficient for your offending to continue over many years and remain undetected. You were able to act dishonestly because you were trusted by the school without reservation. The level of trust emerges implicitly from Ms Peterson's reference. The fact of the adoption of the single authorisation method merely explains how you were able to carry out these transactions.
48You fobbed off the new Principal, by assuring him means you delayed your discovery. Fortunately, he was not persuaded by your assurances.
49You gambled your salary and committed these offences to fund your expenses of daily living. The traditional distinction between need and greed is of little value here. It is not need in the usual sense. It lacks an element of greed.
50I will avoid categorising the seriousness of your offending, which is a practice the Court of Appeal tells sentencing judges and magistrates to avoid.[5]
[5]DPP v Weybury [2018] VSCA 120 at [34].
Culpability
51There is no question but that your culpability is high for these offences. The fact you misled the new Principal about the state of the school's finances is of little moment compared with the scale of the offending preceding it.
Victim impact
52There is no victim impact statement. The school funds itself from monies provided by government and the voluntary contributions of parents of students. Although your offending must have had some effect on the school, but on the evidence before me, I cannot say to what extent.
Good character
53To an extent, you have the benefit of a good character. Such benefit ended in, at least 2009, in relation to the driving offences.
Rehabilitation
54Even though you have considerable skills, I doubt anyone would use those skills in the knowledge of this offending. Apart from the lack of opportunity, you have achieved a significant degree of success with Gambler's Help in overcoming your addiction to gambling.
55I accept you are remorseful for your offending. Remorse is useful if it translates into a determination not to re-offend. You have that determination.
56It should not be underestimated the deterrent effect of a sentence of imprisonment upon a person of your age who has never been imprisoned before. It is true your psychological issues are not being addressed except indirectly by Gambler's Help, but the fear of further imprisonment should act as a powerful deterrent to future misbehaviour and to assist in your steps to rehabilitate yourself. Overall, I consider your prospects of rehabilitation are very good.
Maximum penalties
57The maximum penalty for each of the charges is 10 years' imprisonment.
Guilty pleas
58In relation to the charges, in terms of the timing of your pleas of guilty, they were entered at the earliest reasonable opportunity.
59By pleading guilty, you have saved the time and expense of a trial and allowed other trials to be listed earlier than would otherwise be the case. You have spared witnesses the burden of giving evidence in a trial where giving evidence is rarely easy.
60At the present time, a plea of guilty deserves a greater discount on sentence. Why this is so was explained in the case of Worboyes v R[6], where the Court said:
As is abundantly clear, one of the pernicious effects of the current pandemic is that the lists of the criminal courts in this State have become severely congested. Unacceptable delay in the disposition of criminal cases is endemic. Indeed, it is not an overstatement to say that the system of criminal justice in this State is in crisis, requiring a response from the courts. We therefore consider that, whilst the courts of this State continue to labour under the adverse effects of the pandemic, a sentencing court should view a plea of guilty as carrying with it a greater utilitarian benefit than at other times and in other circumstances, and, concomitantly, as attracting an augmented mitigatory effect on sentence, simply because the plea will benefit the beleaguered administration of justice. Given the unhappy state of the courts' lists, the courts must, in an endeavour to alleviate the strain on the system, encourage those accused who are guilty to so plead. Such encouragement must come from an actual and palpable amelioration of sentence.
[6][2021] VSCA 169 at [35]
61Your guilty pleas are evidence of your remorse for the offending. Overall, they entitle you to a significant discount on the sentence which would otherwise have been imposed if you had not pleaded guilty but had been found guilty at a trial.
Verdins
62In the case of R v Verdins[7], the Court of Appeal set out some ways in which a person's mental impairment is relevant to sentencing. Of the six ways, your counsel relied on the fifth, which states:
The existence of the condition at the date of sentencing (or its foreseeable recurrence) could mean that a given sentence would weigh more heavily on the offender than it would on a person in normal health'.
[7] [2007] VSCA 62 at [32].
63In her report, Ms Ferrari lent strong support to the application of that way or principle. At [126], she said:
…imprisonment would likely weigh more heavily on Ms Walshe than a person without her conditions. In individuals with symptoms of MDD [Major Depressive Disorder] and GAD [General Anxiety Disorder], there is potential for significant mood fluctuation and the volatile nature of the prison environment can further exacerbate her symptom profile and risk of decompensation. There is no doubt that the unpredictable, volatile and tense prison environment will cause exacerbation of Ms Walshe's symptoms.
64This passage establishes the applicability of the principle but does not provide much upon which to evaluate its significance. The expectation is bouts of increased depression and anxiety. Since the symptoms of depression and anxiety were sufficiently elevated to justify their diagnosis when Ms Ferrari assessed you, then periodic escalation of their severity would be significant. Despite the prosecutor's submission as to the limited weight given to this matter, I consider some greater weight should be given to it.
Current sentencing practices
65Your counsel referred me to 24 sentences imposed in this Court for somewhat similar offending.[8] The sentences range from a community correction order of three years' duration to three and a half years' imprisonment with a non-parole period of one year and nine months' imprisonment.
[8] DPP vHitchener [2016] VCC 1844; DPP v Morton [2019] VCC 342; DPP v Mauger [2021] VCC 860; DPP v Cetrola [2018] VCC 1929; DPP v Amerasekera [2019] VCC 1833; DPP v Chen [2017] VCC 735; DPP v Harlow [2020] VCC 1336; DPP v Naughten [2018] VCC 1758; DPP v Peirce [2018] VCC 1571; DPP v Zanin [2020] VCC 963; DPP v Woolley [2021] VCC 479; DPP v Milton [2019] VCC 2019; DPP v Guy [2016] VCC 1497; DPP vDouglas [2017] VCC 622; DPP v Jones [2018] VCC 1459; DPP v Saad [2019] 1466; DPP v Sands [2018] VCC 1790; DPP v Horne [2020] VCC 954; DPP v Brown [2020] VCC 1522; DPP v Webster [2017] VCC 1825, DPP v Bezuidenenhout [2016] VCC 1070; DPP v Howard [2018] VCC 967; DPP v Kane [2017] VCC 1741; DPP v Kirakopoulos [2017] VCC 1297.
66The Director's counsel referred me to five appeals against sentences imposed in this Court and dealt with in the Court of Appeal.[9] The ultimate sentences ranged from between three years and 10 months' imprisonment with a non-parole period of two years and six months' imprisonment to 18 months' imprisonment and a community correction order of 18 months' duration.
[9] Maddock v R [2020] VSCA 271; DPP v Caulfield [2019] VSCA 131; Malinikas v R [2016] VSCA 112; Thorpe v R [2016] VSCA 158; R v Galletta [2007] VSCA 177.
Sentences
67On Charge 1, I sentence you to 12 months' imprisonment.
68On Charge 2, I sentence you to 15 months' imprisonment.
69On Charge 3, I sentence you to 12 months' imprisonment.
70On Charge 4, I sentence you to 12 months' imprisonment.
71On Charge 5, I sentence you to 9 months' imprisonment.
72On Charge 6, I sentence you to 9 months' imprisonment.
73On Charge 7, I sentence you to 12 months' imprisonment.
74On Charge 8, I sentence you to 24 months' imprisonment.
75On Charge 9, I sentence you to 9 months' imprisonment.
76On Charge 10, I sentence you to 12 months' imprisonment.
77On Charge 11, I sentence you to 24 months' imprisonment.
78The prosecution does not seek any orders for cumulation of these sentences, submitting your offending was essentially a continuous course of conduct against the same victim. I agree with that submission.
79The total effective sentence is 24 months' imprisonment. I will set a non-parole period of 14 months' imprisonment.
80There is no pre-sentence detention.
Section 6AAA
81If you had not pleaded guilty to these charges and had been found guilty after a trial, I would have sentenced you to a total effective sentence of 32 months' imprisonment.
Restitution
82To date, you have made no restitution to the school. However, the Director no longer seeks an order for restitution. Her counsel explained why this morning.
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