Director of Public Prosecutions v Williams

[2014] VCC 810

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00050

DIRECTOR OF PUBLIC PROSECUTIONS

v

SCOTT DOUGLAS WILLIAMS

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JUDGE:	HER HONOUR JUDGE PATRICK
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	29 May 2014
CASE MAY BE CITED AS:	DPP v Williams
MEDIUM NEUTRAL CITATION:	[2014] VCC 810

REASONS FOR SENTENCE
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Subject:
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Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Hosking
For the Offender	Mr T. Alexander

HER HONOUR: 

1Scott Douglas Williams, you have pleaded guilty to one charge of obtaining property by deception (Charge 1) and one charge of attempting to obtain property by deception (Charge 2).  The maximum penalty for obtaining property by deception is ten years' imprisonment.  The maximum penalty for attempting to obtain property by deception is five years' imprisonment.

2The prosecutor applied for a compensation order to Suncorp Group Limited in the amount of $279,824.97.  The making of that order was consented to.

3The circumstances of your offending are set out in the Summary of Prosecution Opening upon Plea, which was tendered as Exhibit A.

4In brief, the circumstances of your offending are as follows: At the time of the offending between 21 October 2011 and 2 July 2013 you were employed by Suncorp Group Limited as a repair development manager in the motor vehicle insurance division.  You had been employed with that company for 13 years.  In your role you had access to the computerised payment system which was used to make payments to insured customers, repairers and third parties.  Staff members would initiate a payment by entering details using their unique user code and password.  The payment would not be made until a supervisor authorised the payment using their unique user code and password.

5Charge 1 is a rolled up charge which covers the following offending: On 21 October 2011 you initiated a payment using the user code and password of a colleague.  You then authorised the payment using the user code and payment of another colleague.  This claim related to the policy of a customer with the same name as you.  A payment of $2136.89 was made directly into your bank account.

6Between 21 October 2011 and 6 August 2013 you made 58 unauthorised payments into your personal bank accounts or accounts held by members of your immediate family which you controlled.  The unauthorised payments totalled $297,195.97.  The frequency and amount of the payments varied.  The largest single payment was $8614.32.  Thirty-one of the transactions were initiated using your own user code and password.  The remaining 27 transactions were initiated by using the user code and password of eight different colleagues including your wife.  You authorised all 58 transactions using the user codes and passwords of colleagues.

7Charge 2 is also a rolled up charge which covers the following offending:  Between 7 November 2011 and 2 July 2013 you attempted 12 unauthorised payments totalling $61,466.27.  The largest payment attempted was $16,224.  You used your own user code and password as well as those of colleagues including your wife.  These payments did not go through.  The payments were cancelled for some reason that has not been identified to me. 

8In August 2013 Suncorp began investigating suspicious transactions.  Your transactions were identified.  Suncorp investigators spoke to you and you admitted your offending.  Your employment was terminated immediately. 

9On 7 October 2013 you attended at a police station.  You were arrested and interviewed and made full admissions.  You told police that there had been fair bit of pressure on you from your family.  You said, "I guess you wouldn't consider it an extraordinarily extravagant lifestyle, but it was maintaining credit cards and living beyond our means.  A family holiday to Japan was somewhat financed by this."  You said the amounts were taken as you needed to make payments such as on your credit card.  You said you intended to make what recompense you could.  You said you were extremely sorry for the damage caused to the company and to your wife and family.

10The committal proceeded by way of straight hand-up brief, with you indicating your plea of guilty at the committal mention in January 2014. 

11A victim impact statement was tendered by the Suncorp Group's investigator, who interviewed the staff whose access codes were used by you to perform the transactions.  The investigator says that those people she interviewed felt victimised by you, as you were a senior person they reported to and respected.  Their access had been used without their permission or knowledge and all staff expressed shock and disbelief at you having done this. 

12I have taken into account your personal circumstances in sentencing you.  A number of exhibits were tendered on your behalf.  Your older sister gave evidence on your behalf and provided some information as to your background.  The information as to your background comes from her evidence, from the contents of the exhibits and from what was said on your behalf by your counsel.

13You are now 41 years old.  You grew up in suburban Melbourne.  Your parents are teachers and have fairly conservative values.  Your parents separated when you were about eight.  You lived with your father but had regular contact with your mother.  Your relationship with your mother become somewhat strained after difficulties involving her second husband.  You have a good relationship with your sister and are currently living in a caravan at her residence.

14You completed Year 12 and did some brief training in hospitality.  You worked in that field and then obtained administrative work.  You then gained employment with Suncorp and progressed through the ranks.  After your dismissal you have found employment in the retail area.

15You have been married twice.  You married your second wife in about 2001 and you have one child with her, who is now eight.  You and your wife separated after you were arrested for these matters and are obtaining a divorce.

16A psychological report was provided by Mr Patrick Newton, psychologist, dated 26 April 2014.  You told Mr Newton that as a younger man you had engaged in significant drug use but had ceased all drug use in your early twenties.  You said that you had been drinking very heavily at the time of your offending. At the time he first saw you, Mr Newton was of the opinion that you were dependent upon alcohol.  You have subsequently reduced your use of alcohol.

17You told Mr Newton that your offending commenced when a cheque made out S. Williams was returned and you fell to the temptation of putting that into your own account.  You said you thought you could do it again and use the money to make things better at home.  You told Mr Newton that you engaged in further offending whenever you experienced financial pressure or your wife asked you to supply some sort of material good.  You acknowledged that the money had been spent on cars, a holiday, brand items, international travel and similar.

18Mr Newton is of the opinion that you have a persistent depressive disorder from which you were suffering at the time of your offending.  He says the result of that is that the clarity of your cognitive processes and capacity to make logical and rational decisions and to impede your impulses were all compromised.  He says there is a compelling need for ongoing mental health intervention.  Mr Newton says that you are "suffering noteworthy symptoms of depression that are causing him considerable distress."  It is Mr Newton's opinion that a proportion of your symptoms have arisen as a result of your offending and subsequent detection and the consequences but that your depression had been severe enough to require ongoing professional intervention since 2006.

19Mr Newton says that your personality is such that you tend to "compromise the pursuit of his own interests and needs in order to seek the approval of others by anticipating their needs.  A further strategy he has used has been to surround himself with outward displays of prosperity and success."

20It is Mr Newton's opinion that if you were in prison, you would be likely to experience more severe depressive symptoms than is typical of prisoners not affected with a pre-existing depressive condition.  He considers that there is a significant risk you would experience deterioration in your mood following sentencing and recommends that you be provided with professional assistance.  He is also of the view that your depressive symptoms are likely to render your time in custody more onerous.

21In addition to giving evidence, your sister provided a character reference for you (Exhibit 1).  It is clear that your sister remains close to you and supportive of you.  In her written reference and her oral evidence she said that you are back to your normal self since the disclosure of your offending, although clearly affected and stressed about the situation.

22A further bundle of positive character references was tendered as Exhibit 3.  Those references speak of your popularity and generosity, your contribution to the Moke Owners Association of Victoria and your remorse at your offending.  Your sister and the writers of the references also refer to changes in your demeanour and contact with friends during your second marriage.  During that time you had less contact with your family and friends and appeared to be under pressure of some sort. 

23In sentencing submissions, your counsel conceded that your offending was clearly serious and involved a breach of trust and a substantial amount of money.  Your counsel said that you had found employment since the termination of your Suncorp employment and were earning a regular, albeit modest income.  He said you had begun repaying the amount to Suncorp and had paid $10,050 back and had entered into a repayment arrangement to repay the balance. 

24Your counsel said that as a result of your offending, you had lost your employment and the prospect of further employment in the industry.  You had suffered a loss of dignity and self-esteem.  Your marriage had ended and you felt particularly keenly the loss of living full-time with your son.  Your counsel said that you had lost all your wealth, as in the property settlement with your wife you had received about $40,000.  You had nothing to show for your offending, and your counsel said that the punishment for your crimes was all encompassing. 

25Your counsel relied on your lack of prior criminal history and suggested this offending was out of character for you.  Your counsel submitted that on the basis of Mr Newton's report, your offending was to fulfil a psychological need rather than avarice or greed.  Your counsel said that your past was one of working and being family orientated, with contributions to the community through church and other activities.

26Your counsel particularly relied in mitigation on (a) your early plea of guilty; (b) your real and genuine remorse; (c) your disclosure to your current employer and community association of your offending; (d) your deep insight into your conduct, exemplified by portions read of a letter that you had written to the court; (f) your previous character as a working family orientated contributor to the community through church and other activities; (g) the restitution you had made together with an agreement to make further restitution; (h) the application of principles set out in Verdins [2007] 16 VR 269; and (i) your prospects of rehabilitation.

27Your counsel submitted that a sentence of imprisonment would be within the range but that you were the sort of person who would benefit from a disposition which did not require you to go to gaol.  He submitted that appropriate sentencing purposes could be adequately met by a suspended sentence of imprisonment.  Your counsel pointed to your behaviour since the detection of your offending and the extra curial punishment that you had received together with your genuine remorse and acceptance of responsibility.  Your counsel submitted that there would be a reduced need for specific deterrence in any sentence and that you had excellent prospects of rehabilitation. 

28The prosecutor submitted that there were a number of serious aspects of this offending, being the period of time; the amount of money; the number of transactions; the breach of trust of your employer; and the use of the access codes of your co-workers.  The prosecutor acknowledged your full admissions and remorse.  He submitted that you were, at the time, enriched by the offending, although you had got no ongoing benefit. 

29The prosecutor submitted that Verdins' Principles 5 and 6 could have some application, but that if I were applying any of the Verdins' principles, moderation of sentence ought to be limited.

30The prosecutor acknowledged your previous good character, but said that was not surprising in matters of this kind.  The prosecutor submitted that notwithstanding the matters in mitigation, the seriousness of the offending was one which required a term of imprisonment. 

31Mr Williams, your offending was clearly serious.  You breached your employer's trust.  Employers must be able to trust their employees to deal with their financial affairs.  You had a position of responsibility as a manager. You were trusted to do the right thing by the company you worked for.  You were in the position to take this money because you were a trusted employee without any criminal history.  You have not only breached the trust of your employer. You have also breached the trust of your fellow employees by abusing the knowledge you had or acquired about their user codes and passwords in order to commit your offences.  You engaged in repeated dishonesty over a considerable period of time.  Your offending had a degree of sophistication in that you worked out the process and went to efforts to obtain passwords to be able to use for this purpose.  You took a significant amount of money and attempted to take an additional amount.

32It appears that your motivation was to support the lifestyle which you and your wife then wished to have.  It is clear that you did not need this money but was spending it on items which could be described as luxury items.  You clearly knew what you were doing was wrong but continued with your deceptions until you were discovered. 

33I accept that your personality type, as described by Mr Newton, had a part to play in your decision to offend and to continue to offend in order to support your lifestyle and to gain the approval of your wife.  That does not, in my view, reduce your moral culpability for these activities.  It is clear that general deterrence must be given very significant weight in this sentence.  It is to be hoped that other employees will be deterred from similar offending by the prospect of going to gaol. 

34The seriousness of your offending warrants a term of imprisonment for the purposes of denunciation, just punishment and general deterrence.  As I will explain, I consider that your prospects of rehabilitation are good and, accordingly, and that specific deterrence need only have considerably reduced significance in this sentence.

35I have taken a number of matters into account in mitigation of sentence.  You are entitled to a significant discount for your plea of guilty.  You have saved the expense and inconvenience of a trial.  I accept that your plea of guilty is an expression of your genuine remorse.  You made immediate admissions to the Suncorp investigators and to the police.  You have expressed your remorse to members of your family and friends.  You have agreed with your sister that it was a relief to have been caught.  You have confessed to your current employer and to the Moke Owners Association.  Your efforts to repay the amount to Suncorp are also an indication of your remorse, as is your consent to the compensation order.  You have found work and have attempted to re-establish a stable life with the assistance of your sister and have continued your contact with your son.  You have no prior criminal history.  I consider these offences to be out of character for you.  That is confirmed by your efforts to stabilise your life since the detection of your offending and your lack of subsequent offending.  Mr Newton suggests that you have insight into your offending.  You have support from your family and friends.  All of those matters suggest that you have very good prospects of rehabilitation.

36I have also taken into account in mitigation of the punishment that I will impose that you have suffered considerable adverse consequences as a result of the detection of your offending.  Those matters constitute some punishment in themselves. 

37On the basis of Mr Newton's opinion, I am satisfied that your longstanding depression had some deleterious effect on your ability to make proper decisions.  You did continue to work throughout this period in the position of some responsibility, and I consider that your depression reduces your moral culpability but only to a very moderate degree.  That conclusion will be reflected in some moderation of sentence for this reason.

38I do not consider that your mental state reduces your suitability as a vehicle for general deterrence.  I accept that Verdins Principles 5 and 6 apply.  I accept that your depression will make incarceration more difficult for you and that there is a significant risk that imprisonment will have an adverse effect on your mental health. 

39I consider that a wholly suspended sentence of imprisonment would not adequately meet the sentencing purposes of general deterrence, just punishment and denunciation.  I consider that it would be desirable to partially suspend the sentence that I impose to reflect the matters in mitigation, particularly the matters which go to your good prospects of rehabilitation.  I consider the offending to be so closely linked that a very modest cumulation would be appropriate between the charges.

40Please stand up, Mr Williams.

41On Charge 1, you are convicted and sentenced to a term of imprisonment of two years and ten months. 

42Charge 2, you are convicted and sentenced to a term of imprisonment of nine months.

43Two months of the sentence on Charge 2 is to be served cumulatively on the sentence on Charge 1. 

44The total effective sentence is three years' imprisonment.

45You will be required to serve nine months of that sentence.  Two years and three months of this sentence will be suspended for a period of three years. 

46But for your plea of guilty, I would have sentenced you to a term of imprisonment of four years and three months with a non-parole period of three years.

47Mr Williams, I am required to tell you about the consequences of having a suspended sentence.

48Having a suspended sentence means that if you commit any offence during the next three years, which is the period of suspension, which could result in imprisonment, then you will be brought back before me.  Unless there are exceptional circumstances, you will be required to serve the two years and three months.  Accordingly, it is extremely important that you make sure that you do not commit any offence, hopefully ever, but particularly for the next three years.

49I have made the compensation order that was sought.