Director of Public Prosecutions v Whittaker
[2012] VCC 953
•11 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-12-00162
Indictment No. B12835885
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEBBIE MAREE WHITTAKER |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 11 July 2012 | |
CASE MAY BE CITED AS: | DPP v Whittaker | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 953 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S Rennie | |
| For the Accused | Mr T Freeman |
HER HONOUR:
1 Debbie Maree Whittaker, you have pleaded guilty to four charges of theft.
2 The maximum penalty for theft is ordinarily 10 years’ imprisonment. That is the maximum penalty in relation to Charge 1. In the circumstances of this case the maximum penalty applicable to each of Charges 2, 3 and 4 is 20 years’ imprisonment.
3 The prosecution seek a compensation order in favour of the Bendigo and Adelaide Bank Limited in the sum of $184,992. The making of that order is not opposed.
4 The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea tendered as Exhibit A.
5 As at 4 May 2010, you had been employed by the Bendigo and Adelaide Bank Limited for approximately 14 years. You had progressed from working in the mail room through customer service to being a customer relations officer.
6 On 4 May 2010, you withdrew a total of $47,711.48 from a term deposit with the Bendigo Bank held by a customer, L. Wilson. You withdrew $7,711.48 in cash. You then drew up a bank cheque in the amount of $40,000 which you deposited into your mother’s account on 13 May 2010. You were the authorised signatory to your mother’s account. Your mother had no knowledge of the deposit and you subsequently withdrew the money from her account. (Charge 1)
7 On 19 May 2010, you opened two National Australia Bank accounts in your own name. On 24 May 2010, you made two electronic transfers of $92,500 each out of a term deposit account held by I. and M. Griffiths at the Bendigo Bank. One of the transfers went into one of the National Australia Bank accounts that you had opened. The other transfer went into the other National Australia Bank account opened by you. (Charges 2 and 3)
8 From one of the National Australia Bank accounts you raised a bank cheque in the amount of $47,711.48 payable to L. Wilson (the account holder the subject of Charge 1) and the account in the name of L. Wilson was returned to its pre-theft balance.
9 On 1 June 2010, you opened a Westpac bank account in your name. You then accessed a term deposit account of a Bendigo Bank customer, D. Trainor. You transferred $185,000 from D. Trainor’s account into your Westpac account. (Charge 4)
10 On 3 June 2010, you raised a bank cheque from your Westpac account payable to I. and M. Griffiths (the account holders in relation to Charges 2 and 3) in the amount of $85,000. You then deposited this cheque into the term deposit of the Griffiths. On the same day, you wrote a personal cheque from one of the National Australia Bank accounts that you had opened in the amount of $100,008. This cheque was back-dated to 24 May 2010 and deposited into the Griffiths’ term deposit. The deposit of these two cheques returned the Griffiths’ term deposit to its pre-theft balance.
11 Between 4 May and 1 June 2011, you had removed a total of $417,711.48 from three term deposits of Bendigo Bank customers. During the same period, you returned a total of $232,719.48 to two of the term deposits, leaving you with $184,992 that you did not return.
12 On 22 November 2011, you sent an email to the Bendigo Bank Greensborough branch manager disclosing that you had taken money from D. Trainor’s term deposit. In the email you indicated you were aware that the deposit was up for review at the end of the month and said you could not stand the thought of Mr Trainor being shocked at seeing a large amount of his money missing. You said you were “sincerely sorry” for putting the branch manager in this predicament. You said that you had not told anyone else of your actions and made yourself available for interview.
13 An interview was conducted with you by the bank’s investigators on 24 November 2010. You told the investigators about the money that you had taken from the accounts. You said that some of the money went towards your house and was paid to a builder after it had been put through your mother’s account. You explained about the other withdrawals. You explained about money you had borrowed and tried to pay back. You said no-one had questioned the transactions but you knew it was only a matter of time and that is why you had come forward. You told investigators about the financial situation of yourself and your partner. You provided documentation to the bank’s investigators by way of cheque butts and made full disclosure of your offending.
14 You were interviewed by police on 30 March 2011. You made full and frank admissions to the police. You said that you had initially taken the money because you had only been loaned 80 per cent of the money you needed for the construction of your home and you were “desperate” at the time. You said you were looking for the easy way out rather than going to your husband and saying that you needed to come up with the extra money. You were trying to solve the problem yourself. You took money from the second account to pay back the first account. You took more money from the second account because you had borrowed other money and had made a promise to pay it back. After paying debts and spending money on furniture, the remaining funds were spent on living expenses and things for the children.
15 You said your husband had been unemployed for three months and that your financial troubles and using credit cards had started when your husband’s business went bad. You said you were trying to maintain your previous living standard and that you had spent the money that was left after the initial accounts were repaid. You said when you needed a second signature to authorise a transaction, your colleagues would trust you and they would authorise you, and then you would go back and do the transaction.
16 You said you contacted the bank because you could not live with the guilt. You said you were pregnant during that time and, after you had had the baby, you made a decision that you could not wait any longer and that there was going to be a time when you would be found out so you wanted to tell the bank before the bank came to you. You said you had spoken about repayment and were trying to get your superannuation released so you could repay the money.
17 You also indicated an intention to plead guilty at the earliest time and cooperated by providing documentation to assist in the investigation.
18 The following exhibits were tendered on your behalf:
Exhibit 1 – reference from Ms Karen Buckland dated 29 May 2012;
Exhibit 2 – report of Mr Patrick Newton (Clinical and Forensic Psychologist) dated 22 May 2012;
Exhibit 3 – notes from CAT Team;
Exhibit 4 – summary of amounts moved between accounts;
Exhibit 5 – folder of materials relied upon by defence being three medical reports including Exhibit 2, eight character references including Exhibit 1, and three further documents;
Exhibit 6 – extract from Second Reading Speech of the Confiscation Bill 13 November 1997;
Exhibit 7 – breakdown of Ms Whittaker’s instructions as to where the money was spent.
19 Evidence was given on your behalf by Senior Constable Sharon Sheldon, Ms Karen Buckland and Mr Patrick Newton.
20 I have taken into account your personal circumstances in sentencing you. I have derived those circumstances from the material contained in the exhibits, what was said by the witnesses and what was said on your behalf by your counsel.
21 You are now 34 years old. You grew up in the Bendigo area. Your childhood and education was generally unremarkable. You described your upbringing in positive terms to Mr Newton. I note your father worked as a long haul truck driver and was away from home during the week with the result that your mother largely raised you and your two siblings herself. Your mother has a mild intellectual disability and is unable to read. Your parents separated when you were 15 which you found distressing. You told Mr Newton that as you could understand the reasons behind the separation you had coped relatively well with it.
22 You completed your VCE and took up two temporary jobs. You then joined the Bendigo Bank as a trainee. You remained worked for the Bendigo Bank until being detected in these offences. You achieved promotion and enjoyed your work with the bank.
23 You married in 1996. You remained in that relationship until 2005 when you separated from your first husband. You were left with a debt from this marriage.
24 You are now married to your husband, Danny Whittaker. You have been with Mr Whittaker since late 2005 and have three children who are aged five, three and one. Your youngest child was born on 14 November 2010.
25 Your husband worked in the security industry for many years. In 2008 he and his business partner decided to expand the business. Your husband borrowed money from his parents, purchased another security firm and incorporated a third partner into the business. The finances of the company then took a turn for the worse and the company was wound up and placed in liquidation. Your husband was left with substantial debts to his parents as well as costs associated with the liquidation.
26 Your husband had become depressed. In late 2008 he obtained work with another security company. He continued to drink heavily and his depression worsened. In June 2009 your husband obtained work in another security company and his mood improved markedly. You and Mr Whittaker decided to build a new home. You sold your existing home, bought a block of land and leased your original home back, awaiting the completion of your new home.
27 In September 2009 your husband was assaulted and relapsed into depression and problem drinking. Your husband was demoted and his mood and work performance declined. He ultimately resigned from his employment in December 2009. Your husband has recently returned to work in a semi-skilled capacity.
28 You had been unable to borrow as much as you wished to pay for your new home and had borrowed money from your family. Progress payments fell due which you were unable to pay.
29 You have no prior criminal history.
30 Dr D S Chauhan (general practitioner) confirms in his letter dated 2 May 2012 that your husband had consulted him on five occasions since January 2008 for anxiety and panic attacks. Dr Chauhan describes the medications he prescribed for your husband. He says that on 19 November 2008 he judged your husband to be in a “reactive depression”. Dr Chauhan last saw your husband on 13 May 2011 and says “I felt he was mildly depressed”.
31 Notes from the Northern Area Mental Health Service referred to as the CAT Team notes, were tendered as Exhibit 3. It appears from those notes that your husband was referred to the service by his general practitioner and was assessed on 1 February 2009. The intake summary of the presenting problem was that he was suicidal with plans and intention. The notes say that he had been using alcohol for the last six months, owed money to people and had anger management issues. The assessment notes say that he had had suicidal thoughts but did not intend to act on those thoughts. The assessment notes refer to symptoms of depression such as disturbed sleep, weight loss, forgetfulness, feelings of helplessness, hopelessness and suicidal thoughts.
32 It appears from the notes that there was a review the next day and that your husband was prescribed medication. It also appears that the question of referral to a psychologist was discussed. Progress was apparently checked on a daily basis between 5 and 9 February and again on 11 and 13 February. It appears that the checks on seven of those days were conducted by way of a home visit. It appears that shortly after 13 February 2009 your husband was discharged from the care of the CAT team.
33 Dr Mark Warren, medical oncologist, in his report dated 25 May 2012, confirms that your mother is suffering from a number of different cancers and that her medical condition is serious. It appears that she will shortly require further surgery and may require radiotherapy in the future. Dr Warren confirms that when your mother is in Melbourne she spends a lot of time with “her supportive daughter, Debbie and when she is unwell Debbie is her main carer.”
34 Senior Constable Sheldon had provided a very positive written reference. She gave evidence that she had known you for about 20 years. Originally she knew you in the context of her having previously been in a relationship with your brother. Senior Constable Sheldon said she lived with your family for about four years and had subsequently visited you regularly and played sport with you. She has not seen you as frequently since you both had children. Senior Constable Sheldon described you as being like a younger sister to her and as a beautiful person who was a good friend, honest, caring and loving. Her evidence was that you had always put everyone else first from a very young age and been worried about other people’s feelings rather than your own. She also described you as a very loving and caring daughter. She said she was totally astonished on hearing about your offending. Her evidence was that you were very emotional when talking to her about the matter and describing your financial problems of which she had been unaware.
35 Ms Buckland is a kindergarten teacher and is your sister-in-law, being the sister of your husband. Ms Buckland had also provided a very positive written reference. Ms Buckland said she has known you for seven years and that you were a very committed and loving wife and mother and a very caring and compassionate person. Ms Buckland said that you were “gutted” and distressed and beside yourself about your offending. She said that you were very caring in relation to your mother who travelled to Melbourne for treatment and stayed with you and your husband.
36 In relation to your husband’s situation, Ms Buckland said that he had suffered from severe depression and a nervous breakdown. She regards you as critical to keeping her brother alive. It was her evidence that her brother would not be alive without you. Ms Buckland said that you would do anything to keep things normal for your husband and children and that you had been very concerned about your husband committing suicide. Ms Buckland said you had been sincerely remorseful and that she regarded this offending as being totally out of character. From her evidence she regards you as the main decision maker in the family and said that if you could protect your husband then you would.
37 Mr Newton gave evidence consistent with his report (Exhibit 2). His opinion is that you have been suffering from a major depressive disorder of moderate clinical severity which pre-dated this offending. Mr Newton said that his view was as set out in his report that:
“It is well-accepted that the symptoms of major depressive disorder have a detrimental impact upon the sufferer’s capacity for clear reason and decision-making…There is a tendency to focus on salient solutions and to have difficulty generating alternative courses of action to manage problematic situations. In addition, a tendency to persist with activities well-beyond the time when they have exhausted their utility and to have difficulty motivating oneself to undertake needed changes is also commonly observed.”
38 Mr Newton described the effect that this state would have in relation to your judgment and this offending. He said that whilst you had the capacity to form the required intent, there would be a confusion with your intention to protect your husband from self-harm and an inability to consider alternative options. He said you would be limited in developing options to deal with your intention to protect your husband and keep things normal for your family.
39 It was also his evidence that incarceration would increase and magnify your depressive condition. It was his opinion that in jail you could obtain medication but you would have difficulty accessing supports or psychosocial treatments.
40 In his report, Mr Newton said that you had expressed deep remorse and shame for your conduct and that you had utterly rejected the dishonesty inherent in your offending and felt a strong sense of shame. He gave evidence that your remorse was pervasive, sincere, heartfelt and intense.
41 In relation to your likelihood of re-offending, Mr Newton suggested that you were taking steps to deal with your financial pressures and that your depression could be treated. Other than those factors, he did not consider there were any other factors which would lead to a likelihood of re-offending.
42 Mr Newton said that whilst it might appear that you made the decisions, the reality of the interaction between yourself and your husband was different. He referred in his report to your marriage operating on “traditional gender divisions” but also reported your statements about your love and commitment to your husband.
43 Mr Newton’s evidence was that your pre-eminent concern was that your husband would harm himself. He said that the involvement of the CAT Team meant that there was a clear threat of self-harm. He suggested that any self-harm engaged in by your husband would be regarded by you as being your fault because you had not managed the situation properly. He suggested that you were strongly invested in maintaining an outward appearance and accordingly would not outwardly manifest your inward distress.
44 In cross-examination Mr Newton described the decision to build the new home as being over-optimistic and agreed that the decision, based on information he had, was a joint decision.
45 In re-examination Mr Newton said that your mental state would contribute to you taking the first option available to you rather than thinking through the consequences and that without the depression you would think of the consequences. It was his opinion that making a decision that was expedient without thinking about the long-term was characteristic of disordered thinking processes.
46 In sentencing submissions your counsel submitted that a sentence of imprisonment would be considered but that any sentence of imprisonment should be wholly suspended. If I were against him on that, your counsel submitted that I should consider imposing a wholly suspended sentence of imprisonment in combination with a Community Correction Order.
47 Your counsel made submissions in relation to the increased penalty which he accepted applied to Charges 2, 3 and 4. Your counsel submitted that Charges 2 and 3 could have been dealt with as one charge in the same way as Charge 1 was, given that each situation involved two withdrawals. Your counsel argued that the application of the increased penalties was arbitrary and that your offending was not of the type of offending that fell within the purposes anticipated by the relevant legislation. He submitted that taking into account those matters you should not receive a higher sentence because of the categorisation of each of these offences as a continuing criminal enterprise than would otherwise have been imposed.
48 The prosecutor submitted that it would be an error if I ignored the statutory provisions, although the application of those statutory provisions might not mean a greatly increased sentence in relation to Charges 2, 3 and 4.
49 I am sentencing you, taking into account that the maximum penalty on Charge 1 is 10 years’ imprisonment and the maximum penalty on each of Charges 2, 3 and 4 is 20 years’ imprisonment. I do so taking into account the defence submissions and the nature of your offending, as well as the material relied upon by your counsel including the decision in Roussety [2008] VSCA 259.
50 It is my view that the offending contemplated by the relevant provisions covers a wide range of types of offending which would not exclude the offending you engaged in. I do take into account that these offences occurred a very short period of time and occurred in the circumstances which I have described. I have taken into account a number of matters in arriving at the sentence which I will impose. Those matters include the applicable maximum sentence.
51 In mitigation your counsel relied on a number of matters as follows:
(a) the short period of time over which the offending occurred;
(b) the individuals concerned were all repaid by the bank and are not out of pocket;
(c) your contacting a branch manager and confessing your crime;
(d) your remorse;
(e) your co-operation and admissions made;
(f) your motivation to alleviate financial pressure;
(g) the offending occurring in the context of your depressive illness and the effect on your judgment or your mental state;
(h) the offending occurring in the context of your husband’s depressive illness;
(i) apart from a holiday, the money was spent on matters to do with your home and household expenses, as well as to satisfy other financial obligations.
(j) your lack of prior criminal history;
(k) your prior “exemplary” history;
(l) the hardship that will be suffered by your family;
(m) your attempts albeit unsuccessful to make repayment;
(n) the likely negative impact of incarceration on your mental state;
(o) your prospects of employment.
52 For the purposes of the transcript, those are to be (a) through to (o) as factors.
53 Your counsel relied on Mr Newton’s report and evidence. He argued that you would not be a suitable vehicle for the application of general deterrence because of the application of certain of the principles set out in Verdins [2007] VSCA 102. He also argued that it was clear from Mr Newton's report that you must receive assistance and treatment. He submitted that a sentence of imprisonment to be served immediately would put deterrence before your reformation and rehabilitation given that there were certain sorts of treatment that would not be available to you in prison.
54 Your counsel acknowledged that your offending constituted a serious breach of trust but submitted that I should take into account that the victim in this case was an institution rather than an individual or individuals. Your counsel argued also that I should take your motivation into account and that your offending was not in order to lavish personal items on yourself but to make things better for your husband and children.
55 The prosecutor in sentencing submissions suggested that the court faced a very difficult sentencing task. He conceded that you could not have a higher discount for a plea of guilty at an early time. He also accepted that you had co-operated with the authorities, had shown remorse and had good prospects for rehabilitation, together with a previous good character.
56 The prosecutor then referred to the breach of trust in this case, the significant amounts involved and the number of offences. He agreed that some offences were close in time with the apparent motive of repaying.
57 The prosecutor referred to your estimate of what the money had been spent on (Exhibit 7). He agreed that much of it appeared to be related to matters of appearance and obligations to others. He said the repayment of $38,000, which you had made, was a matter of pride rather than it being pursued. He argued that you were not able to face up to the fact that you were living beyond your means. He argued that you seemed to be driving the decision to sell your first house and buy another, and that the decision was a poor one.
58 In relation to the application of Verdins’ principles, the prosecutor argued that you clearly knew that what you were doing was wrong but agreed that non-consequential thinking was evident as you must have known that you would have to “face the music”. He agreed that significant personal matters would cause you hardship if you were sentenced to imprisonment.
59 In relation to the question of hardship to your family, the prosecutor submitted that the circumstances did not amount to exceptional hardship, which is the required test. The prosecutor argued that whilst the circumstances would get close to meeting that test, the circumstances would not meet the test. The prosecutor submitted that the appropriate range of sentence would be a total effective sentence of between 12 and 36 months. As to whether a term of imprisonment could appropriately be suspended, the prosecutor submitted that that would come to my distillation of the matter, bearing in mind the significant breach of trust.
60 Ms Whittaker, there is no doubt that you engaged in serious offending. What you did was a very serious breach of trust. Any bank has to be able to trust its employees to behave honestly as otherwise the banking system simply could not work. You took advantage of your knowledge of how the banking system works and your access to people’s accounts. You also took advantage of the fact that you were trusted by your colleagues, who would sign the necessary documents on your say so. Ultimately it is because the responsibility falls on the bank that the individuals concerned are not out of pocket. This type of offending reduces public confidence in banks. I do not regard the fact that the bank repaid the individuals as a matter of mitigation.
61 The total amount you stole is very large, although it should also be taken into account that the amount that you ultimately retained was a considerably lower amount. In itself, the amount that you retained is a significant amount. Your offending was over a relatively short time but was engaged in in a relatively sophisticated manner. I accept that your offending would ultimately have been detected and that if you had thought that through, you would have known that. Indeed, it appears that you reached that realisation.
62 Your offending involved serious criminality, dishonesty and breach of trust. There is no doubt that the seriousness of your offending would lead to a conclusion that an immediate term of imprisonment was warranted for the purposes of just punishment, general deterrence and denunciation. Other bank employees must understand that they risk going to jail if they breach the trust of their employer in such a way.
63 In your case, however, there are significant matters which operate in mitigation of sentence. You have no prior criminal history. Indeed, the references and evidence given support a conclusion that you were, and would otherwise be, of an excellent character. It is consistent with that conclusion that you could not continue indefinitely in the knowledge of your guilt and contacted a person to confess your criminality very shortly after the birth of your daughter. I accept, as you do, that this was in the context that you would be found out as you were unable to repay this money but it is of great significance that you voluntarily confessed. You also gave immediate and considerable co-operation to the bank investigating authorities and the police. You immediately indicated an intention to plead guilty. Your actions indicate genuine and deeply felt remorse, acknowledgment of the wrongfulness of your actions and have saved the expense and inconvenience that might otherwise have been required by further investigations and a trial. Your conduct entitles you to a very high discount in sentence.
64 I have also taken into account your motivation for the offending which involves offending in order to protect your husband and children and their situation. In my view, there is, to a certain extent, a selfish aspect to this, in that it was so important to you to be thought of as having been able to manage to achieve a good lifestyle for your family. You spent money on a holiday and other items which could not be regarded as necessities. Based on Mr Newton’s evidence, I accept that this motivation was linked to the way your personality had developed and certain difficulties in your personality and that your decision to do what you did was made in the context of your depression. I accept that your judgment was affected to a significant degree by your depression. I consider that that conclusion ought result in some moderation of the punishment to be imposed on you and some moderation of the application of general deterrence. I say some moderation because I still regard your moral culpability as being high.
65 I consider that your prospects for rehabilitation are good. Your prospects for rehabilitation would be very good if you were able to receive the treatment recommended by Mr Newton. I also consider your prospects would improve if you were able to take up your current employment offer. Your offending appears to have occurred in the context of a number of factors coming together in combination with your personality traits and your depression. With support and appropriate treatment in the knowledge of your hitherto undisclosed difficulties in coping I consider that the future risk of your re-offending is very low. I consider that this process of having been charged and brought to court has been a severe lesson to you and that you will do your best to avoid any similar offending in the future. What has happened also ought to be in my view sending some messages to your family and it is to be hoped that they will have a better understanding of your difficulties and your difficulties as a family with your husband. I consider that specific deterrence ought only play a very minor part in your sentence.
66 I accept that your mother’s health is very poor and it is likely that she will require ongoing care from you. You acknowledge that other arrangements could be made but I accept that you have been her primary carer when she requires to be in Melbourne or when she is very ill, and that it would be a hardship to her if you were not able to care for her.
67 Clearly there would be hardship to your children if you were not able to care for them, particularly in the light of your husband’s difficulties.
68 I have carefully considered the material in relation to your husband. I accept that you and his family were very concerned that he might attempt to harm himself. On the medical material provided it appears to me that the severity of that risk was perhaps lower than might have appeared from submissions made on your behalf. Nevertheless, I accept, on the evidence of Ms Buckland, that the family as a whole, including yourself, were very concerned about him and were worried that he might attempt to take his own life if the situation became very bad, particularly in relation to financial matters.
69 I do not consider that this combination of hardships in this case meets the test of exceptional hardship required for the hardship to your family members in itself to be taken as a matter that ought to reduce your sentence.
70 I do consider that the hardship that would be likely to occur to your family if you were incarcerated would be a severe burden on you given the matters set out in Mr Newton’s evidence. It is my view that the contemplation of these hardships would cause you very considerable hardship if you were incarcerated and that consideration will be taken into account in imposing a sentence. I have also taken into account Mr Newton's opinion that your mental state will deteriorate if you are incarcerated. That matter also operates in mitigation of sentence.
71 I accept that it was and is your intention to repay the bank and that your inability to repay was contributed to by you being required to stop work earlier than anticipated because of pregnancy related matters. Having taken into account the matters which operate in mitigation of sentence, I consider that it would be an appropriate reflection of the totality of your offending to impose a sentence involving a suspended sentence of imprisonment together with a Community Correction Order. Such a sentence would, in my view, appropriately take into account all the sentencing factors and would appropriately meet the sentencing objectives of denunciation, just punishment and general deterrence. It would also reflect, in this case appropriately, the totality of your offending, denunciation, just punishment, and general deterrence.
72 In sentencing you I have taken into account my understanding of current sentencing practices for this type of offending. I have considered the principles of totality and proportionality when considering the appropriate sentence in relation to each charge and degree of cumulation together with the other aspects relevant to each aspect of your offending, including the maximum penalty available. I consider that your offending in Charge 4 is the most serious of your offending, given that that amount remained outstanding for a much longer period of time and given the amount involved. I consider it appropriate to provide for a small amount of cumulation to reflect the additional offending in Charges 2 and 3.
73 The amount involved in Charge 1 was a lesser amount and the amount was repaid fairly quickly. The lower maximum penalty is applicable to that charge. In my view, a Community Correction Order would be the appropriate penalty in relation to that offence. You have been assessed as suitable for a Community Correction Order.
74 The seriousness of the offending in relation to the other three charges warrants a sentence of imprisonment for the purposes I have outlined. As I indicated, I consider in the circumstances that it is desirable to suspend any sentence of imprisonment imposed particularly in light of the matters in mitigation and the desirability for yourself and the community of your rehabilitation. I have had regard to the need to ensure that sentence adequately manifests denunciation of your offending, deters yourself and others and reflects the gravity of the offences. I consider there is an extremely low risk of you committing another offence punishable by imprisonment during the period of suspension.
75 Ms Whittaker, I am required to ask you whether you will consent to a Community Correction Order being made. I will, in order for you to understand what you are consenting to, now tell you what the order I propose to make is in relation to Charge 1. I propose to make a Community Corrections Order which will last for 18 months. That order will require you to attend at Greensborough Community Correctional Services within two clear working days after the commencement of this order. I understand an appointment has already been made. There are terms that must apply to all these orders. They are that you must not commit another offence for which you could be imprisoned during the time that the order is in force; you must report to and receive visits from a Community Corrections Officer; you must report to the Community Corrections Centre within two clear working days of the order starting; you must let a Community Corrections Officer know within two clear working days of you changing your address or job; you must not leave Victoria without first getting permission to do so from the Community Corrections Officer; you must obey all lawful instructions from and directions of Community Corrections Officers.
76 I also propose to add the following special conditions. You must perform 120 hours of unpaid community work over a period of 18 months as directed by the regional manager. You must be under the supervision of a Community Corrections Officer for a period of 18 months. You must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric, in a hospital or residential facility as directed by the regional manager.
77 I also should explain to you that if you breach that order, if you do not comply with those conditions you can be charged with an offence and you could have a sentence of up to three months imprisonment imposed. You would also be brought back to court to be re-sentenced by me.
78 Do you understand the proposed conditions and the effect of that order?
79 PRISONER: Yes, Your Honour.
80 HER HONOUR: Do you consent to it being made?
81 PRISONER: Yes.
82 HER HONOUR: Thank you. Ms Whittaker you are hereby sentenced as follows.
83 On charge 1, theft, you are convicted and sentenced to a Community Correction Order for the period of 18 months with the conditions I have set out.
84 On charge 2, theft, you are convicted and sentenced to a term of imprisonment of 20 months.
85 On charge 3, theft, you are convicted and sentenced to a term of imprisonment of 20 months.
86 On charge 4, theft, you are convicted and sentenced to a term of imprisonment of 2 years and two months.
87 Two months of the sentence on Charge 2 and two months of the sentence on Charge 3 are to be served cumulatively on each other and on the sentence on Charge 4.
88 The total effective sentence is 2 years and 6 months. That sentence is wholly suspended for a period of 2 years and 6 months. The Community Correction Order is to be served concurrently with the sentence on Charge 4.
89 Ms Whittaker I am required to explain to you the effect of being placed on a suspended sentence. What that means is that if any time you commit an offence punishable by imprisonment within the next two and a half years, you will be brought back to court before me. Unless there are exceptional circumstances you will be required to serve the two and a half years imprisonment. So it is extremely important that you make sure that you do not do anything to contravene the law in the next two and a half years. Obviously you should not anyway but for the next two and half years it is extremely important. You need to be aware that for example even a minor theft or an offence such as dangerous driving, in circumstances driving while suspended or disqualified, does have a sentence of imprisonment applicable. So you must avoid any further offending for the next two and a half years. If you are in any doubt, do not do it.
90 The prosecution sought a compensation and as has been said, that was not opposed, it was consented to, and I make the order in favour of the Bendigo and Adelaide Bank Limited in the amount of $184,992.
91 But for your plea of guilty I would have sentenced you to a term of imprisonment of 4 years and 3 months with a non-parole period of 2 years and 6 months.
92 Mr Freeman and Ms Rennie, is there anything that at this stage you can see that I have left out in terms of the sentence or that you need repeated in terms of the sentence?
93 MS RENNIE: Not from my end, Your Honour.
94 HER HONOUR: Thank you.
95 MR FREEMAN: Nothing, Your Honour.
96 HER HONOUR: Could you please check it after I have left the Bench and if there is anything that is an error, by that I just have to explain to other people, I do not mean whether you agree with it or you do not. What I mean is that it is properly expressed and that I have covered the things that I am required to by the sentencing legislation, is really what I am asking you to do but if you could just look at it so that you can draw something to my attention quickly if there is anything of that nature that needs to be drawn to my attention.
97 MR FREEMAN: Certainly, Your Honour.
98 HER HONOUR: Thank you. Ms Whittaker could you stand please. I hope that you do engage in the recommended treatment. I appreciate that things are now very difficult for you and Mr Whittaker in terms of your financial circumstances. I hope that you are able to work together through that and with treatment potentially for each of you and with support that you are able to come out of this period of time. I am confident that you with support from your family and friends have the capacity to get through those years without re-offending particularly. I hope that will be the case. Thank you.
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