Director of Public Prosecutions v Whiteley

[2019] VCC 1701

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

AT SHEPPARTON
CRIMINAL JURISDICTION

CR-19-00383

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOANNE WHITELEY

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Shepparton
DATE OF HEARING:	14 October 2019
DATE OF SENTENCE:	18 October 2019
CASE MAY BE CITED AS:	DPP v Whiteley
MEDIUM NEUTRAL CITATION:	[2019] VCC 1701

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Brown	Office of Public Prosecutions
For the Accused	Ms C. Lloyd	Slater and King

HIS HONOUR:

1Joanne Whiteley, you have pleaded guilty to one charge of obtain property by deception, that carries a maximum penalty of 10 years' imprisonment.

2You are 48 years of age and you pleaded guilty at a relatively early opportunity. When questioned by police you made a no comment record of interview, but you are perfectly entitled to do that and the matter was resolved once the investigation had been completed.

3I accept that your plea of guilty is now accompanied by remorse, though there is an element of justification that seems to permeate some of this material and you must obviously get the utilitarian benefit of that plea of guilty.  Trials such as this become complicated and it shows an intent to forward the course of justice.

4Firstly, pursuant to s.464ZF of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample police may use reasonable force to take it from you and that order is made and handed down.

5A summary of the offending is that it occurred when you were between the ages of 35 and 46 years of age.  You commenced full time employment as an accounts manager at a family company known as JDK Management or known as JDK Transport in February 2006.

6Between 26 May 2006 and 12 October 2017 you were misappropriating money for your employer.  You would flag a duplicated payment from a customer, would request cheque to be drawn up on the customer's behalf to return the overpayment to them.  That would be documented onto the cheque stubs and then into the system.  You would then prepare a cheque that would be signed by one Donny Caliphartis, who was the only signatory on the account.  The cheque would be returned to you to send to the customer, but you would - it says here in the Crown opening, 'By unknown means', and I am not going to investigate that - alter the cheque or complete the cheque from the customer's name into your name or into cash.  You would then deposit the cheques in your bank account.  If they were made out to cash they would cashed and deposited as cash.  You would deposit additional cash with a cash cheque or deposit multiple cheques at the same time in attempt to make the deposits difficult to detect.

7As a result of your conduct the National Australia Bank was deceived into believing that the cheques had been rightly made out to you.  They honoured the cheques and transferred the money to your account.

8In December 2017, you requested a cheque for a duplicated account for
Mars Petcare.  Connie Kalafatis, one of the proprietors as I understand it, declined the request becoming suspicious of your constant requests for duplicated payment cheques.  She started to investigate.

9On 12 January 2018, the matter was reported to police and a forensic accountant was called in and went through the entire history of the transactions.  In all, there were something like 86 cheques belonging to JDK Management Transport that had been used, totalling something in the order of $255,433.  That gives rise to the charge.

10The last cheque was deposited on 12 October 2017 and that had totalled $3,639.  The size of the cheques range from $475 to two cheques which were around the $17,500 mark.  The level of the offending varied over the years and the Crown opening has a history of that, which I do not think I need to go into.

11As I said, you were interviewed and made no comment and that is the bare bones of what occurred.  It is a situation where there has been no restitution.  It is clearly a serious, very serious, breach of trust.  The people that you were stealing from were in fact, on the face it at least, friends.  It was a family company, it is not a situation where it was being taken from a bank or anything along those lines.  It involved a number of separate decisions to steal over a period of around about 12 years.  The offending was only stopped by discovery.  There is nothing to suggest that it would have stopped had the suspicions not been aroused about that particular individual cheque.

12You have no prior convictions and as I understand it you have no matters pending.

13A victim impact statement has been provided and read out by the learned prosecutor, from Connie Kalafatis, which shows or displays clearly the sense of betrayal when someone who is trusted to that extent steals to such a large extent.  The person who has been stolen from becomes suspicious, doubts themselves and it causes ongoing grief and concern.  That can particularly be so in rural communities.

14The offending has to be regarded as serious.  It calls for the application of general deterrence and whilst I think in your case specific deterrence can be somewhat ameliorated, there must be denunciation and there must be an appropriate punishment. People who steal from employers in these sort of circumstances over such long periods of time must know that if you do it you are going to have to go to gaol.

15It would be an exceptional situation with this amount of money over this period of time for the person who has stolen not to be given an active custodial sentence.

16I have looked at a number of cases.  I have seen the statistics that have been provided and the various comparable cases.  No two cases are ever the same but I have taken all those matters into account and the submissions by your counsel in relation to them.  Because of the span of time over which the offending occurred a suspended or partially suspended sentence is open as a sentencing disposition.  I think that is the appropriate sentence here.  I do not think a community corrections order to follow on from a sentence would achieve anything.  In any event, I think that the circumstances are that it would be in my view out of range in any event.

17I then turn to matters personal to you, in terms of this offending.

18I deal firstly with the submissions that have been made that somehow this offending was related to need and not greed.  I queried that and I am not going to go into great detail about his or labour the point but I asked for details surrounding two transactions which had occurred in June 2015 and July 2015.  They were two cheques, each one in excess of $17,000.  I was given the bank records that surround those cheques and you received dishonestly some $35,000 over about three weeks.  That money was dispersed over a period of two and half, three months.  I have now looked at that whole four months.  It seems to be the suggestion that seemed to be put, that yours was some sort of hand to mouth existence is totally destroyed by those records.  You spent $3,500 on clothes.  You spent all sorts of money on - spent money on trips, spent on providing things for children.  They may all well be laudable but they are only laudable if it is your money and not somebody else's.  I do not accept that this was done out of needs basis.  The objective evidence suggests that that is not the case.

19I do understand, however, how in situations such as this can become almost a pattern of behaviour over a long period of time.  I accept Ms Lechner's opinion that the probabilities are that you really disassociated from it rather than have any desperate need for the money.

20Yes, I will not go into great detail about that but just simply point out that those two cheques were taken at the end of 2015 and the start of 2016 financial years.  Your taxable income in 2015 was $64,000 and your taxable income in 2016 was $62,000.  There is no needs basis, in my view, involved in all that.

21I then turn to your family history, which was outlined to me by Ms Lloyd on your behalf and I also have the report that has been put in by Ms Lechner.

22It is a situation where you were brought up in somewhat difficult circumstances. You were one of two children.  Your parents remained together and it is a situation where there is certainly ill health in regard to them.  You, I accept, on the material before me are fundamental in their care and I take into account that you be incarcerated will create a greater burden for you knowing that this conduct of yours over a long period of time has resulted in you being unable to assist them in any meaningful way for the next period of time.

23Again, I do not think I need to go into the childhood aspects of this.  Ms Lechner says that really it is a dissociative aspect, which comes about through a number of factors which I will deal with later.

24In any event, you went to school, completed Year 11, said you were an average student and had friends but struggled to fit in.  You at the age of 16 met the father of your eldest son, Shane, that was Mr Lynch.  Shane had been born by the time you were 18 and that relationship eventually foundered.  Again, I do not have to go into the reasons for all that.

25It is clear that within days of the baby's birth you were returning to work at Sidchrome, where you were at the time in an office administration role.  You remained at Sidchrome for 11 years in that role and I am told without incident.  A house was then rented and eventually purchased in Eltham and in the end as a result of incidents, and I will put it no higher than that, it is obvious what is in the report, you were left to support a son by yourself.  You returned to your parents' home for a period of time.  I am told you never received any support financial or otherwise from the father of the child.  You had tried to facilitate access but he did not seem to want to know.

26You finished your employment with Sidchrome in approximately 1998, the result of a forced redundancy.  You used your redundancy then to help purchase a small house in Rushworth for yourself and your son.

27You after that met a man, who was the father of your second child in 1999.  The second child, Zac, was born in 2001.  He apparently was a moody and controlling person but the two of you had built a house together in Rushworth using the proceeds of sale from your earlier house that you, as indicated, purchased.

28Your difficulties in that relationship with him never accepting your older son.  And those circumstances, again, are outlined in Ms Lloyd's helpful submissions I do not need to go into any further.

29The relationship ended in 2005 and he took ownership of the Rushworth home.  I now understand, what I am told the other day, that in fact you received $37,000 from that and that was in around about October 2015.

30I have now been shown the documentation that relates to the purchase of the next house and the house that you currently own.  I expressed some surprise that a bank would be prepared to loan money for the full value of the house, but it seems on the face of it at least that they have.  You at that period of time, this is around October 2015, had the balance of the money that had been paid from the marriage settlement and also the loan.

31You then, in February 2006, commenced work with KDF.  Clearly at that point in time you were paying off your own home, you were working and you would appear to have been going okay.

32You had previously worked with members of the Kalafatis family before and you took on this employment.  You started in, as I said, February and your duties involved keeping invoicing and answering telephone calls.  You had a lot of control over the business and it is clear from the materials that you were a trusted and valued employee like by, essentially, all and sundry.

33However, you commenced to steal from the company within a few months of your employment.  There is nothing here to indicate financial hardship at that stage.  It has been put that a lot of this resulted from you being behind in the mortgage and matters such as that as to renting your other house out.

34It is clear, however, that if the instructions are correct that you did not shift into Shepparton to rent until 2009, that you had been in that situation of stealing for three years before you had any mortgage problems with the rented house.  My calculation, you must have already stolen something between $30,000 and $40,000 by the time that you shifted to Shepparton.  You did that, you say, so that your younger son could attend primary school and then high school in Shepparton.  I accept that you did rent out your house in Rushworth and the matter proceeded on from there.

35I am not privy to and I not going to go into the accountancy experience of going through all your bank records over that period of time, but from then on in you maintained, as I understand it, the house in Rushworth and continued to rent in Shepparton till your detection.  It is put that you did not want to foreclose or sell the Rushworth property because to you it represented security and you did not want find yourself of leaving home again and having to go back to your parents.

36Unfortunately, the choice you made - and it was a choice - was to continue to steal to a considerable level.  As I have indicated to your counsel I do not accept that it was hand to mouth.  Whilst they may not have been described as extravagant expenses, they were certainly consistent and they were certainly the sort of expenses that someone in your situation should not have been engaging in.  As I said a lot of it, if it is for the children, is regarded as laudable but not when it is someone else's money.

37It is serious offending.  I do take into account the matters that I have raised already, that is the lack of prior convictions, the fact that it is out of character and I accept that and I heard sworn evidence from your sister and from your son, and I accept that this offending has come as a massive shock to them and to the rest of your family that you had concealed it for such a long period of time.

38Out of character is a difficult concept when the accused has been doing it for something like 12 years.  But clearly there has been no other offending.  I accept that in those circumstances you were, on her evidence, loaned money to your sister, in respect of her husband.  You had loaned money to your son and probably others.  Again, all very laudable if it is your money.

39The question of restitution has arisen.  It is a situation where there has been no attempt at restitution.  When you look at the cases, I think in one of the cases they looked the court pointed out they could not find a situation of a non-custodial sentence for this sort of thing unless there had been restitution made.

40I note one of them that did receive a community corrections order, restitution had been made by the selling of the house.  That has not occurred here and I note there is a significant degree of equity in it from what is being told to your counsel. It is stealing from them that kept the house and that they are the ones, whether their insurance claim's successful or not, I have got no idea, but they are the ones that have financed it.  That does not aggravate the situation, just makes it clear that the question of restitution in these matters is a very important one.

41Again, it hen look to, as I have indicated, the report of Ms Lechner and she says that you currently have severe or extreme level of depression.  I accept that is a very difficult thing for you.  It is not something that cannot be dealt with in a custodial environment.  But I accept that it would make it more difficult in a custodial environment.  That potentially is the only of the limbs of Verdins that are awakened in this particular situation but it is one that I do take into account.

42There is not the slightest pleasure a judge ever gets in sentencing somebody such as you at your age and your family situation, and the family that you have to a sentence of imprisonment but there is simply, in my view, no option.  Again, taking into account is that you do have a steady employment history but again it is a bit of a double edged sword.

43Ms Lechner basically says that you struggled to explain to her why you had done it and it may have been because of you needing money for urgent matters.  Her views seems to me, and I have read many of her reports over the years, that this is a disassociated series of events done in an effort to basically distance yourself from various feelings of shame and guilt.

44You clearly did not want to show to others that you were in trouble and you did not want to seek help from anybody else.  However, the choices that you made to facilitate that are very unwise indeed.

45The prospects of your rehabilitation should be relatively good.  The risk of you reoffending in this way, I would have thought, bearing in mind this will be - what is about to occur, I think, be very low.  It is really all a matter for you.

46What it all comes down to then is a very significant, very large sum of moneys being stolen from people who trusted you over a very long period of time and none of it has been paid back.  In those circumstances there is no option but to have an active custodial sentence of proper proportions, not just a token gesture.

47As I said, I looked at the cases and indicated that the basic area I saw - indicated to counsel the basic area that I saw this falling within and accordingly I am going to impose a partially suspended sentence.

48The sentence on the charge is one of 30 months' imprisonment and I direct that 16 months of that sentence be suspended for a period of three years, which leaves 14 months to serve.

49Now, in those circumstances I do not do a non-parole period because of the suspended aspect of it.

50MS LLOYD:  As Your Honour pleases.

51HIS HONOUR:  All right, were there any other - 6AAA, we will make it four with two and a half.  No other orders I need to make?

52MR BROWN:  No, Your Honour.

53HIS HONOUR:  All right.  She can go now, thank you.

54MS LLOYD:  As Your Honour pleases.

55OFFENDER:  I'm sorry.

56HIS HONOUR:  Sine die.

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