Director of Public Prosecutions v Wilson
[2016] VCC 89
•17 March 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-15-01863
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHLEY WILSON |
---
JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 11 February 2016 | |
DATE OF SENTENCE: | 17 March 2016 | |
CASE MAY BE CITED AS: | DPP v Wilson | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 89 | |
REASONS FOR SENTENCE
---
Subject: Criminal Law- Sentencing- Breach of Trust by Employee- CCO Imposed having regard to powerful mitigating circumstances.
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | John Cain, Solicitor for Public Prosecutions |
| For the Accused | Dr M. FitzGerald | Dr Martine Marich & Associates |
HER HONOUR:
1
Yes, thank you. All right, now, on the previous occasion this matter was adjourned to enable a report to be obtained in respect to
Mr Wilson.
2 A pre-sentence report has been received, prepared by Stuart Reid, the Community Corrections officer at Moorabbin, Community Correctional Services, and that report is dated 26 February 2016. Have the parties all received a copy of that?
3 COUNSEL: Yes, Your Honour.
4 HER HONOUR: Yes, all right. What exhibit number are we up to, in respect to this matter?
5 ASSOCIATE: Eight.
6 HER HONOUR: Eight. All right, so that will be marked Exhibit 8 for the purposes of the plea hearing.
7 EXHIBIT 8 - Report of Stuart Reid, Community Correctional Services, dated 26/02/16.
8 Now did the parties wish to make any further submissions?
9 DR FITZGERALD: No, Your Honour.
10 MR PICKERING: Your Honour, I don't have any submissions with regard to the report itself. My submissions remain the same from the last occasion, but there are a couple of matters Your Honour asked me to update you on.
11 HER HONOUR: Yes.
12 MR PICKERING: One of which is the issue of the compensation has been settled between my learned friend and my instructor.
13 HER HONOUR: Right.
14 MR PICKERING: And the loss to Bosch was the sum of $155,797.
15 HER HONOUR: Right.
16 MR PICKERING: And there is a draft compensation order to that effect, which I understand will be consented to by my learned friend on behalf of his client.
17 HER HONOUR: Right.
18 MR PICKERING: Your Honour will recall on the last occasion it was submitted and accepted that there had been property which has, in effect, been already restrained, to enable that to be paid.
19 HER HONOUR: So what happens in respect to that? I understood that the property's available.
20 MR PICKERING: That is correct, Your Honour.
21 HER HONOUR: And will that cover that sum?
22 MR PICKERING: It will, Your Honour, we believe so.
23 HER HONOUR: All right. So there will be full restitution?
24 MR PICKERING: Yes, Your Honour. And it is to be noted that, in fairness to the prisoner, that it was offered at an early stage and it was a matter of it being held and restrained until the order of today and the final figure being worked out, which has been done.
25 HER HONOUR: All right.
26 MR PICKERING: So there will be full restitution.
27 HER HONOUR: All right.
28 MR PICKERING: And to that effect, Your Honour, I have the draft orders, which I'll hand to your Tipstaff.
29 HER HONOUR: Yes. So that order is consented to?
30 MR PICKERING: Yes, Your Honour.
31 HER HONOUR: In those terms, the doctor, Dr FitzGerald?
32 DR FITZGERALD: Yes. And I shouldn't lie silent about the question of restitution, Your Honour. The submission I made on a previous occasion was that the house had been valued at 300,000 by the State valuer general and was subject to a mortgage in the sum of 172,000, so it's substantial restitution. But the forfeiture of that property would not, of itself, entail full restitution of the amount, which is now consented to.
33 HER HONOUR: Right. But there will be full restitution.
34 DR FITZGERALD: Not by reason of the forfeiture of the house.
35 HER HONOUR: No, but there will be.
36 DR FITZGERALD: Yes.
37 MR PICKERING: Yes, Your Honour, and that's accepted, Your Honour. The only other matter, Your Honour, is that - and I believe it was foreshadowed in the opening, was an application for a forensic sample. I omitted to bring with me the draft orders and I apologise. I believe it's been emailed by my instructor to your associate for - and on the basis that it's a non-custodial order, having regard to the Community Corrections report.
38 HER HONOUR: Right.
39 MR PICKERING: I understand that's also not opposed.
40 HER HONOUR: Is that correct?
41 DR FITZGERALD: That is correct, Your Honour.
42 HER HONOUR: Have we got that order?
43 ASSOCIATE: I have received it. Would you like me to print that off?
44 HER HONOUR: Yes, please. So Dr FitzGerald, is your client being supported today in court?
45 DR FITZGERALD: Yes, by his sister again, Your Honour.
46 HER HONOUR: All right. Could Mr Wilson please come up to the witness box. Mr Wilson, have you had an opportunity of seeing the pre-sentence report that was prepared?
47 OFFENDER: Yes, Your Honour.
48 HER HONOUR: Yes, all right. All right, so you understand that you have been assessed as to your suitability for a Community Correction Order, a further one?
49 OFFENDER: Yes, Your Honour.
50 HER HONOUR: And you have been found suitable. It is said in the report, the requirements for CCO have been clearly explained to you and you have given your consent to such an order being imposed. Is that correct?
51 OFFENDER: Yes, Your Honour.
52 HER HONOUR: And it was noted that in the past you successfully completed a CCO, with a positive level of compliance and engagement. And it is recommended that an order include special conditions, unpaid community work, supervision programs to reduce re-offending. And should you be sentenced to a CCO, you will be required to report to Moorabbin Community Correctional Services. And is that the place where you went to previously?
53 OFFENDER: Yes, Your Honour.
54 HER HONOUR: All right. So having regard to the particular circumstances of your case, it is my intention to place you on another Community Correction Order in respect to this offending. The duration will be for three years from today's date. And it will be subject to the mandatory terms that apply to all Community Corrections Order.
55 OFFENDER: Yes, Your Honour.
56 HER HONOUR: Which you are well familiar with, so I won't repeat those. And there will be special requirements that you perform 150 hours unpaid community work over two years; that you will be subject to supervision; and that you engage in any courses that are suggested by the Community Corrections officer who is responsible for your case management. All right?
57 OFFENDER: Yes, Your Honour.
58 HER HONOUR: All right, so you are prepared to enter into an order of that nature?
59 OFFENDER: Yes, Your Honour.
60 HER HONOUR: You consent to it being made. In the past has it been explained to you, in the event that you breach any conditions or there is offending, that means that you have breached the Community Correction Order and there is a penalty for the breach, up to three months' imprisonment.
61 OFFENDER: Yes, Your Honour.
62 HER HONOUR: And that further you would stand to be sentenced in respect to any fresh offences and also you would be subject to be re-sentenced by me in respect to this original offence.
63 OFFENDER: Yes, Your Honour.
64 HER HONOUR: So you understand all that?
65 OFFENDER: Yes.
66 HER HONOUR: All right, good. All right, well look, now I will just announce my formal sentencing remarks. At the end I will just get you to acknowledge that you understand the effect and conditions of the order by signing the order. And a copy will be provided to you. All right?
67 OFFENDER: Yes, Your Honour.
68 HER HONOUR: Good, thank you. You can go back and I will do my sentencing remarks.
HER HONOUR:
69 Ashley Wilson, you have pleaded guilty before me to one charge of theft on the indictment.
70 This is a of course, of conduct offence involving offending between 30 October 2009 and 23 December 2012, when you were employed by Robert Bosch Australia as a retail sales specialist.
71 The offending is serious and that is reflected in the maximum penalty that is prescribed by Parliament, namely ten years' imprisonment.
72 I shall now proceed to sentence you on the basis of the summary of prosecution opening that was read to the court and was exhibited at the plea hearing.
73 You are 31. You were born on 20 June 1984. You were employed with Robert Bosch Australia for approximately eight years. Initially you commenced as a retail sales assistant. The role involved working at the Bosch retail shop in Clayton and in late-2009, your role changed to regional sales specialist. That role involved you working in both the retail shop and arranging sales to Bosch warehouses, interstate and in New Zealand. In addition, you were also responsible for organising trade sales events.
74 On 23 November 2012, you resigned from Robert Bosch Australia, following an internal investigation as to suspect transactions within the retail store.
75 Police then commenced an investigation of the alleged suspect transactions and in the course of those investigations, your NAB account was analysed and that showed you were receiving payments from PayPal for mobile phones and other accessories.
76 Police ascertained you held an eBay account in the name of “Mobile Man 99” and the account was used for the sale of 522 items between 30 October 2009 and 15 July 2013, whereby you would on-sell to third parties, mobile phones and accessories that you had obtained through your employment with Robert Bosch Australia.
77 Extensive investigations were undertaken internally that confirmed you had purchased products from Selnet, M2K, Optus prepaid services, and Road Hound. The goods were processed through the employer’s account system as blanket orders, which referred to the value of the goods, but did not refer to the product or quantity, which meant that goods could only be traced from the vendors and not within the accounting system and they were not recorded as individual stock items.
78 Following investigations you were interviewed and made a “no comment” record of interview. Ultimately you were arrested and charged on 22 April 2015. The matter proceeded by way of committal mention through the Magistrates Court and eventually negotiations took place between the parties and the claim was resolved on the basis of the one charge of course of conduct.
79
On 23 October 2015, an application for summary jurisdiction was refused and on that occasion, you entered a plea of guilty to the charge. The matter was then transferred to this court. The matter proceeded by way of straight
hand-up brief, so there were no witnesses called at the committal.
80 You come before the court as a person with no prior criminal history.
81
Of relevance, however, is a court appearance at the Dandenong Magistrates’ Court on 10 February 2015. You were convicted and placed on a Community Correction Order for 12 months', with special conditions of unpaid community work, treatment and rehabilitation for mental health assessment and offending behaviour programs, as directed, for 12 theft charges. The charges concerned you stealing various items from the Robert Bosch shop and
on-selling them to a business, “My Tools Store Proprietary Limited”. The business was located in Aspley, Queensland. You had a relationship with the owner of that business, Robert Malson, through your dealings with him at Robert Bosch. You had ordered goods through the employee shop and the costs were billed to internal Bosch cost centres. The orders appeared in the Bosch shop records as being paid, but were actually billed to departments within Bosch. Bosch was therefore out of pocket, as the goods were sent, but Bosch as a company never received any payments from Mr Malson.
82 You offered Mr Malson reduced prices for the products for cash payment. You would then arrange to meet him and collect the cash payments, under the guise of visiting Queensland for trade shows. In total there were 12 charges involving multiplicity of Bosch products. The total value of items stolen was a little over $115,000. You directly benefited by receiving cash of $62,000.
83 The 12 charges spanned a period of time, some of which overlaps with the time frame of the current charge.
84 The Magistrates’ Court proceedings were protracted and one of the reasons for the delay was that you had to sell a property in order to make full reparation. The property was sold and there has been full reparation to the Bosch for their loss in respect to that offending.
85 Whilst awaiting sentence in the Magistrates’ Court for the 12 charges, the current investigations in relation to the present charge were undertaken. They were extensive, as is set out in the statement of Gerald Dierolf, who was formerly employed as general manager of the original equipment supply chain at Bosch. One of his roles was to identify any fraudulent matters that may occur within the company.
86 He initiated the investigations at the end of October 2013, but because of the number of service providers involved and the manner in which the various items were processed, it took some time. There was considerable delay whilst investigations proceeded to confirm the number of items stolen and the value.
87 All documentation was provided to the informant on 29 January 2015. You were not, however, arrested, nor were you charged until 22 April 2015.
88 Throughout the conduct of the investigations, you were represented by your solicitor, Dr Michael FitzGerald. At no stage did the informant disclose that further investigations were pending, nor did he disclose the nature of such further investigations.
89 On 10 February 2015, you were placed on a community corrections order of 12 months duration, on the terms previous outlined. You successfully completed that order, as is confirmed in the pre-sentence report that has been obtained by the court.
90 The report dated 26 February 2016, confirms completion, with a positive level of compliance and engagement.
91 It is unfortunate that the true nature and scope of your theft from your employer was not known prior to your matters being dealt with by the courts on the first occasion. It would have been preferable that all the offending be dealt with together on the one occasion.
92 I have had regard to the nature of the earlier offending and the punishment that you received and your positive response to the imposition of the Community Correction Order, and consider this reflects well on your rehabilitation prospects.
93 In sentencing you, I must have regard to the nature and seriousness of the offending. This is a case where general deterrence must be emphasised. You were a trusted employee and by your actions, you have breached the trust that was reposed in you through your role as a retail sales specialist. The sentence must provide deterrence to anyone else in such a role, so as to prevent such offending in the future.
94 Given your behaviour and conduct following these charges and the earlier charges, I consider that the need to emphasise specific deterrence is not as great in this case. Nonetheless, there is still a need to emphasise specific deterrence.
95 You have made real progress during the period the CCO was imposed in respect to the parallel offending. I note you are currently employed and have been for the last two years, and there are no further matters outstanding.
96 Dr FitzGerald, on your behalf, submitted that you do accept your offending constituted a serious violation of the property rights of your employer, and that your offending is a significant breach of trust and confidence that was reposed in you. He confirmed you started working as an 18 year old with Bosch, initially in the staff canteen, but were promoted to your various roles over the years and became a trusted employee.
97 The scale of your offending is significant, involving offending over the period between May 2011 and April 2012. In total there were some 522 stock items removed from the premises. I am told the loss to Bosch is now fixed at $155,797.
98 The circumstances of the offending does call for condign punishment.
99 I have had regard to all the matters put in mitigation. They are: firstly, your plea of guilty, entered at a time when an appropriately agreed indictment was drawn. I accept that there is utility in your plea. It has spared the State the cost, inconvenience and expense of a trial. It has also meant that no one has been called to give evidence on your trial. You have thereby facilitated justice and your sentence will be discounted accordingly.
100 Secondly, I accept you are genuinely remorseful.
101 Thirdly, you had no prior criminal history, although I noted the parallel history of offending involving similar conduct.
102 Fourthly, I have had regard to the delay in the investigations and the fact that you were not charged with respect to this offence until 22 April 2015.
103 Fifthly, you have completed successfully the CCO imposed at Dandenong Magistrates' Court on 10 February 2015, and made full reparation with respect to the moneys owed to Bosch in respect to the parallel offending. Further I have had regard to the fact that currently there is a house over which there is a confiscation order that will be sold and the value of that property, less the mortgage is, $128,000, and it is proposed that the property be disposed to meet the compensation order that has been agreed. The expectation is there will be full restitution to Bosch Australia on your behalf.
104 Sixthly, your post-offence conduct shows that you have responded appropriately to the Community Correction Order and your prospects of rehabilitation are good. Since 22 April 2015, you have had this matter hanging over your head. Notwithstanding the uncertainty of the outcome, you have nonetheless successfully completed the order, the Community Correction Order, and there is positive compliance formally acknowledged in the pre-sentence report.
105 By way of personal history and background, I note you are one of three children. You have an older sister and a younger half-sister, with whom you have a close and supportive relationship. Your sister has been present during the hearings and is present here today to support you.
106 You left school early, having completed Year 10 and then you undertook an apprenticeship. At the very tender age of 15, you lived for 12 months on a resort in Port Douglas, pursuing your apprenticeship. You returned to Melbourne undertaking various catering jobs and eventually obtained employment with Robert Bosch Australia at their canteen.
107 Presently, you are working in hospitality, working in a café and you have been doing so for some two years.
108 No motivation was offered for your offending and I infer that you have used your money for your own personal gain. It is not suggested that you have any underlying drug or alcohol or gambling issues.
109 You are currently receiving some treatment from Dr Mark O’Reilly for anxiety and depression.
110 Your counsel, Dr FitzGerald, sought a further Community Correction Order. Mr Pickering, on behalf of the Crown, submitted that an immediate gaol term was the appropriate sentence, given the particular circumstances of this case.
111 Ultimately, I have come to the conclusion that and immediate gaol term to be served is not the most appropriate disposition. Having regard to your particular circumstances; the fact that you have already been dealt with for parallel and related charges; the fact that you successfully completed your Community Correction Order; the fact that there was delay in investigating and charging you in respect to this offending; and the steps that you have taken towards your rehabilitation in the intervening period, all combine such that I consider a Community Corrections Order is appropriate punishment.
112 I have had regard to the principle of totality as well.
113 A community corrections order is intrinsically punitive and does entail substantial general and specific deterrence and rehabilitation. I refer to the guideline judgment Boulton v The Queen [2014] VSCA 342.
114 I have also had regard to the fact that full reparation is likely to satisfy the compensation order sought.
115 So, Mr Wilson, what remains for me now is just to impose the formal sentence, and I ask that you stand.
116 On the one charge of theft, you will be convicted and placed on a Community Correction Order of three years' duration, with special conditions.
(i) That you perform 150 hours of community work over two years;
(ii) That you undertake programs to reduce re-offending; and
(iii) That you be subject to supervision.
117 The requirement of the order is that you must report within two working days of today's date to the Moorabbin Community Corrections Service.
118 I make the following declaration, pursuant to s.6AAA of the Sentencing Act 1991, but for plea of guilty, I would have imposed a term of imprisonment of three years', to serve 18 months'.
119
Finally, I make the forensic sample order sought, pursuant to s.464ZF(B).
I note that the order is by consent. I consider the order is in the public interest, having regard to the seriousness of the circumstances of your offending.
120 So that is all I need to say formally. The only other thing that I must advise you, is that the taking of a forensic sample involves the police giving you a cotton bud to put in your mouth. If you do not co-operate with them, they can use reasonable force to enable that to be conducted, but hopefully that will not be an issue in your case.
121 All right, so I will just sign those orders. I am sure that covers everything. But Mr Pickering, if there is anything I have omitted, you better let me know now.
122 MR PICKERING: Not that I can think of, Your Honour, no.
123 HER HONOUR: All right. I will just ask that your counsel, Dr FitzGerald to accompany my associate while you acknowledge the community corrections order. Then once that is done, a copy will be made and you will be free to go, Mr Wilson. That formally completes the matter. We can adjourn the court.
- - -
5
0
0