Director of Public Prosecutions v Young, Stacey
[2012] VCC 2090
•13 December 2012
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT BENDIGO
CRIMINAL DIVISION
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STACEY YOUNG |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Bendigo | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 13 December 2012 | |
CASE MAY BE CITED AS: | DPP v Young, Stacey | |
MEDIUM NEUTRAL CITATION: | [2012] VCC 2090 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr Jones | Office of Public Prosecutions |
| For the Accused | Ms J. Gleeson |
HER HONOUR:
1 Stacey Patricia Young, now Fishman, you have pleaded guilty to one charge of obtaining property by deception and four charges of attempting to obtain property by deception. The charge of obtaining property by deception is Charge 1. The charges of attempting to obtain property by deception are Charges 2, 3, 4 and 5. You have also pleaded guilty to an uplifted Summary Charge 1 of failing to appear.
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.The maximum penalty for failing to appear in answer to your bail is 12 months' imprisonment.
3 The prosecution has sought orders for the forfeiture of certain items of property that were seized from your premises. They have also sought an order for compensation in the sum of $13,926.20 to the Bendigo and Adelaide Bank Limited. You have consented to the making of those orders.
4 The circumstances of your offending are set out in the Summary of Prosecution Opening Plea which has been tendered as Exhibit A. In brief, the circumstances of the charges of obtaining property by deception and attempting to obtain property by deception are as follows.
5 Between 22 December 2008 and 1 November 2010, you drew 45 worthless cheques on various accounts and deposited them in other accounts with various banks. Some of the accounts into which you deposited the cheques were in your name and some were in the names of other people. The face value of the cheques was $1,125,627. That figure needs to be read in the light of three of the cheques which were deposited totalling $565,000 and which were not cheques but were promotional material from the Readers' Digest. You paid those cheques into an ATM machine over a weekend. I will refer later to those cheques when outlining the circumstances of each charge.
6 The charges that you face are all rolled up charges. Charge 1 relates to all of the amounts of money you were able to obtain from the Bendigo and Adelaide Bank Limited together with eftpos purchases that you made at various shops. The funds for those eftpos purchases were obtained also from the Bendigo and Adelaide Bank Limited. The remaining attempt charges each relate to a particular bank and to the attempted deceptions on each of those banks. Charge 2 relates to the Bendigo and Adelaide Bank Limited. Charge 3 relates to the Commonwealth Bank of Australia. Charge 4 relates to the Australia and New Zealand Bank Limited and Charge 5 relates to Westpac Banking Corporation.
7 In relation to Charge 1, despite your cheques being worthless, you were able to make withdrawals from ATM machines totalling $8,210. You were able to make eftpos purchases from various shops totalling $8,241. The amount of financial advantage it is alleged you obtained by these deceptions from this bank was a total of $15,451.20. I note there is some discrepancy between that amount and the amount which would be totalled by adding the two previous amounts together, however, the prosecution is relying on the amount of $15,451.21.
8 In relation to Charge 2, you deposited a large number of cheques of no value with the Bendigo and Adelaide Bank Limited. The cheques either had no value because you had very little money in the accounts or because they were Readers' Digest promotional material rather than actual cheques. In relation to Charge 2, the amount of property you attempted to obtain by this method was $1,140,327.51.
9 In relation to Charge 3, you deposited cheques which had no value with the Commonwealth Bank of Australia. The amount of property you attempted to obtain from that bank by this method was $36,000.
10 In relation to Charge 4, you deposited a large number of valueless cheques with the Australia and New Zealand Banking Group Limited. The amount of property you attempted to obtain by this method was $82,000. I note that in relation to some of that offending you had opened an account in the name of your sister and had paid the cheques into her account.
11 In relation to Charge 5, attempting to obtain property by deception from the Westpac Banking Corporation, you again deposited valueless cheques into the account in your sister's name. The amount that you attempted to obtain from the Westpac Banking Corporation was $8,000.
12 In the Summary of Prosecution Opening, the prosecution describes how you were able to withdraw money against the cheques in relation to Charge 1. It appears that the Readers' Digest "cheques" were deposited by you through an ATM machine with you keying in the amount into your account. Due to a staff shortage they were not immediately removed from the machine for processing. You had deposited them on 1 February 2009 but they were not dishonoured until 10 February 2009. You were, as a result, able to access funds from that account and conducted dishonest transactions which are the subject of Charge 1.
13 Some of your offending was detected reasonably early in the process. You were arrested on 9 February 2009. The police recovered various items that you had bought. The investigation started but you were not formally interviewed. There was a gap of about six weeks before you started offending again. You utilised your former boyfriend's account and the account of someone else from whom you had stolen a credit card. You were then formally interviewed on 24 June 2009. You made certain admissions. You were released pending a summons. No summons was served at that stage and about five months later you started offending again. This was the time when you opened the account in your sister's name.
14 You were ultimately arrested on 2 December 2010. You were interviewed again and made admissions. You said you had offended in order to fix up your bills. You said the bills were technically not yours but you had got stuck with them.
15 The matter was listed for a committal on 13 April 2011. You failed to appear. Your counsel said that you had gone interstate. That failure to appear is the subject of the summary charge to which you have pleaded guilty. From what your counsel said you knew that you were facing very serious charges but went out of the jurisdiction. Ultimately, you surrendered yourself to the police when you came back to Victoria and there was a committal proceeding on 16 May 2012. That committal proceeded by way of straight hand-up brief and you indicated your plea of guilty.
16 I have taken into account your personal circumstances in sentencing you. I have derived those circumstances from what your counsel said on your behalf and also the matters set out in a psychological evaluation from Dr Simon Kennedy dated 6 September 2012. That report was tendered as Exhibit 1.
17 You are 22 years old. You have lived in Bendigo all your life. Your parents are both working. You have an older sister and an older brother, a younger brother and two younger sisters.
18 Dr Kennedy said you had difficulties from an early age in your relationships with your family. You had problems at school and were bullied at school. You moved out of home at 16 and did a certificate in hospitality. I understand at that stage you had completed Year 11.
19 You had a relationship with a male when you were 17 and 18 but that was dominated by domestic violence. When you were 19 you went to the Northern Territory with your parents. When you were 20, and I understand this was when you returned to Bendigo, you were then working and you met your partner, who is 20 years old and has been working for the council. He is now unemployed. You have not had any work since you were 20 but have been looking for work. I understand that you and your partner married recently.
20 Dr Kennedy says that you present as extremely immature. He says you also have a problematic attitude in that you present as a person with low frustration tolerance and vulnerability to depression with underlying personality difficulties that have made you vulnerable to depression. Dr Kennedy says that you function at the borderline range of intellectual abilities. He assesses your intellectual functioning as being at a percentile of five per cent. He also considers that you have a dysthymic disorder with fluctuating levels of depression in the context of personality difficulties caused by attachment problems.
21 You told Dr Kennedy that the person with whom you had a relationship when you were 17 and 18 had significant alcohol problems. He would drink in excess to the point where you could not pay your bills. You told him that you were attempting to cope with your finances and it was in this context that you wrote false cheques. You told him you felt like it would solve your problems.
22 Dr Kennedy is of the opinion that your offending was caused by your "personality difficulties and the subsequent effect of these with the dysthymic disorder and intellectual problems in combination". Dr Kennedy notes that you have no prior criminal history.
23 Dr Kennedy is of the opinion that you require psychological and psychiatric treatment with probably some anti-depressant treatment being appropriate. He suggests that you require a consultation with a psychiatrist to address this issue. He also suggests that you require longer term psychological treatment with an experienced clinical psychologist over a period of about two years to address personality issues.
24 Dr Kennedy suggests that your prognosis would improve with this treatment. He says you have no marked anti-social personality difficulties but that your offending has been caused by the combination of personality difficulties, cognition and depression.
25 Your counsel particularly relied on a number of matters in mitigation. I accept that these matters do operate in mitigation of your sentence. You have no prior criminal history. Your plea of guilty was entered at the committal stage although it was the second listing of the committal. You co-operated with the police in handing over property and in making admissions.
26 I accept that you are now a youthful offender and at the stage where you commenced this offender you were a young offender. Your rehabilitation ought, therefore, to have prominent weight in the sentence that I am imposing. I accept that the principles set out in Mills' case apply to your situation.
27 I accept that you have accepted responsibility for your actions and to that extent are remorseful. Your plea of guilty has saved the time, cost and inconvenience of a trial.
28 I also note the matters set out in Dr Kennedy's report. In relation to your offending, I do consider that there is some application of the Verdins principles in that your judgment was, to a certain extent, impaired by your depression in the circumstance and context of your limited cognitive functioning. That, in my view, reduces your moral culpability but only to a slight degree.
29 I accept your counsel's submission that incarceration would be more difficult for you because of your personality difficulties, your depression and your cognitive ability.
30 You have reasonable prospects for rehabilitation. You have no other criminal history. You have pleaded guilty and accepted responsibility. Your offending ceased at the time when you met your husband and you have not offended since being in a relationship with him. That suggests that you may be becoming more mature and also feeling more secure and therefore less likely to offend.
31 I consider that specific deterrence need not be a strong sentencing factor but should be given some weigh tin your sentence.
32 Your offending is, of course, serious. You behaved in an extremely dishonest way over a long period of time. You continued offending, despite having been spoken to by the police twice. It appears that you thought because you didn't get into trouble, in the sense of having charges actually made against you, that you could continue. You knew you did not have the money and you knew what you were doing was wrong. As I say, I accept that your judgment was, to a degree, impaired and that you had difficulties thinking through the consequences of your actions.
33 It is very important that you understand that if you do anything like this again, you will get into very serious trouble, that is you will go to gaol.
34 A sentence of imprisonment in this case would be warranted for the purposes of denunciation, just punishment and general deterrence. Because of your young age the difficulties you face, I consider that your rehabilitation should be given such weight that a sentence of imprisonment ought not to be imposed. I consider that a more appropriate disposition would be a Community Correction Order. This was what was proposed by your counsel and was not opposed by the prosecution.
35 The circumstances of your offending and your situation are very unusual and somewhat puzzling. In order to reduce the risks of you re-offending, I consider that a Community Correction Order would provide the appropriate opportunity for treatment and counselling. It would also provide for you doing community work. By doing the community you would both be punished and be able to make a contribution back to society and the community.
36 I consider that your failure to appear ought to be dealt with by way of a fine. I have taken into account your financial circumstances but I consider a fine to be the appropriate penalty.
37 You have talked to someone from Corrections, as I understand it. I believe they have explained to you some of the requirements of a Community Corrections Order, is that right?
38 PRISONER: Yes.
39 HER HONOUR: You have signed a piece of paper saying you consent to the order being made, is that right.
40 PRISONER: Yes.
41 HER HONOUR: So you understand that these orders would require you to obey various directions of the Community Corrections people?
42 PRISONER: Yes.
43 HER HONOUR: And you understand it would also mean that you must not commit any more offences?
44 PRISONER: Yes.
45 HER HONOUR: If you commit any offences during the time of the order, then you can be brought back to me for re-sentencing. Do you understand that?
46 PRISONER: Yes.
47 HER HONOUR: And you understand if you do not do what they tell you to do, that you will be brought back to me for re-sentencing?
48 PRISONER: Yes.
49 HER HONOUR: The order that I wish to impose would go for two years, it would have the following conditions. You would have to do 200 hours of unpaid community work over the two years. You would have to be under the supervision of the Community Corrections people. You would have to undergo mental health assessment and treatment that they tell you to do. You would have to do any programs or courses they tell you to do to address factors relating to your offending, as directed. Do you understand all of those things?
50 PRISONER: Yes.
51 HER HONOUR: I know you don't understand the details but in terms of generally what that means, do you understand?
52 PRISONER: Yes.
53 HER HONOUR: You would have to attend at Bendigo Community Correctional Services by 4 pm on 17 December, which is Monday. Do you understand that as well?
54 PRISONER: Yes.
55 HER HONOUR: Do you consent to that order being made?
56 PRISONER: Yes.
57 HER HONOUR: Then I propose to formally sentence you as follows.
58 I propose to impose a Community Correction Order in relation to Charges 1, 2, 3, 4 and 5. I consider that these are multiple offences which form a series of related offences with similar offending. For that reason I consider one Community Correction Order to be appropriate pursuant to s.40 of the Sentencing Act 1991.
59 The Community Correction Order imposed has the conditions that I have just outlined.
60 In relation to the summary charge of failing to appear, you are convicted and fined $500. I will give you a stay of two months on the $500 fine. That means you have got two months to pay it. If you cannot pay it in two months, you have to make an arrangement to pay it off.
61 I make the orders for forfeiture of the items that were seized. I also make an order for compensation in the sum of $13,926.20. There is a stay of two months also on that order. Ms Gleeson will explain to you what that means.
62 I am not sure whether I said it before but the Community Corrections Order is with conviction.
63 But for your plea of guilty, I would have sentenced you to a term of imprisonment of 15 months with a non-parole period of nine months.
64 I am going to ask my associate and Ms Gleeson to come up to you so that you can sign the Community Correction Order.
65 It is important that you understand that you would have got a much harsher sentence if you had actually succeeded in getting more money out of the bank. Do you understand that?
66 PRISONER: Yes.
67 HER HONOUR: Do you understand that it is very important that you do not do anything like this again?
68 PRISONER: Yes I do.
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