DPP v Amerasekera

[2019] VCC 1833

m

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

AT MELBOURNE

CRIMINAL DIVISION

CR 19-01410
Indictment No.K10707378.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

GAYAN AMERASEKERA

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2019
DATE OF SENTENCE:	7 November 2019
CASE MAY BE CITED AS:	DPP v  Amerasekera
MEDIUM NEUTRAL CITATION:	[2019] VCC 1833

REASONS FOR SENTENCE

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Catchwords: Theft from employer. $484,000 over approximately a three year period rolled up into a single charge. Nil repaid. Deportation.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr A. Paton	Valos Black

HIS HONOUR:

1       Gayan Amerasekera, you have pleaded guilty to one charge of theft.  You have no criminal history before the courts.  You were born on 12 September 1978 and are 41 years old now.  The maximum penalty is 10 years' imprisonment.

Facts

2       Yesterday, the prosecutor, Mr Cookson, opened this matter to me in accordance with a written prosecution opening dated 6 November 2019.  It was an agreed statement of facts.  I will sentence in accordance with those agreed facts and I therefore see no need to describe the full factual setting in these my reasons.  

3       Very briefly though I will say something.  You were a bookkeeper working for a family company which ran a number of Kentucky Fried Chicken outlets.  The director of the company, Desmond Arnolda, was in fact your cousin. Not only that, you had lived with him for a number of years whilst you were studying in this country. You were employed as essentially an operations manager and bookkeeper between 2012 and 2016. From 2016 to May 2018, you continued to work as part time bookkeeper, but even after ceasing formal employment which you did in May 2018, you came back to reconcile financial year accounts. You had secured a job as a hospitality manager on Phillip Island in September 2017 and worked there for about a year.

4       In the course of your engagement with your cousin’s company you had full access to their bank accounts and you had authority to conduct all manner of lawful transactions on behalf of the company. You were not just a bookkeeper, you had a level of control in day to day operations as well as in bookkeeping. So you were in a high management position and greatly trusted, and that is all conceded by your counsel.

5       You totally betrayed the company, your employers and also of course your relatives. You even continued to steal from the company after your departure. The summary sets out the periods of your dishonesty. Paragraph 7 was amended in the running yesterday. You stole around $199,000 in the period between 12 January and 31 December 2016, around $136,000 in the amended period from 11 January to 28 December 2017 and around $148,000 in the period from 8 January 2018 to 9 November 2018. There were around 151 separate dishonest transactions and the agreed amount stolen was $484,147.58.  You were even acting dishonestly against your employers when you were engaged in the other employment.

6       When a new bookkeeper came into the business some irregularities were detected. On 9 December 2018 you met with some of those associated with the business and though you admitted the theft of what you said was about $118,000 you told a pack of lies about the amount as well as the motivation for the theft, citing a failed business deal, debts  and  a shady company chasing you for a debt associated with a laundromat. That discussion was taped and you persisted in very elaborate lies indeed for quite some period. See page 1025 of the depositions.

7       You were trying to save your own skin. You persisted in that false account in an email sent to the family members on 10 December.  A letter was sent spelling out your intention to repay.  It is to your credit though that you abandoned that nonsense on 17 December when you admitted that you had been telling lies. You admitted theft dating back to 2016 and you said that every cent went on short term personal gratification; drugs, alcohol and gambling.

8       You begged your relatives not to report your conduct to the police. You asked to be able to repay at the sum of $2000 a month from January 2019, telling them that you were in debt to someone else. Well, the matter was reported to the police and you were interviewed and you made full admissions on 18 March. You were bailed but that bail was then revoked on 30 April and you have been in custody on this matter since then. You had in fact been in immigration detention from 9 April. You pleaded guilty at the earliest opportunity. Not one cent has been repaid by you.

9       You did not in discussions with your relatives or even in the police interview detail the precise full amount of your theft but actually, on reflection, I do accept it is easily possible that you may not have known the true amount given the duration of the theft, the number of transactions and the sort of life you were leading. You must however have known it was a very, very sizeable amount and more than the $118,000 that you originally disclosed.

Impact

10      There were no impact statements in this matter so really it is impossible for me to truly understand the impact of your crime.  I understand that the insurers bore the loss. No doubt your relatives would have been shaken and shocked by your conduct. You were a trusted employee and a trusted relative. Beyond that though I am really not able to make any judgement as to impact in this case.

Mitigation

11      Your counsel, Mr Paton, took me to your background in some detail including your lack of any criminal history. He relied upon a report from Ms Lechner that was marked as Exhibit 2 as well as four written references and a number of course completion documents. He made submissions about the relative gravity of the offending and the various purposes of sentencing that came into play here. He conceded the high level of breach of trust in this case. He raised a number of matters in mitigation in an excellent plea conducted on your behalf. He had prepared an equally excellent written outline that was marked as Exhibit 1 on the plea. He relied chiefly upon:

·    Your co-operation and your early guilty plea;

·    The presence of remorse;

·    The certainty of your deportation;

12                 He submitted that you had very good prospects of rehabilitation.

13      He conceded the inevitability of a prison term and likely one requiring the fixing of a non-parole period.

Prosecution

14      Given the sensible and realistic plea conducted by your counsel the prosecutor, Mr Cookson, had little need to make detailed submissions as to sentence. He highlighted the breach of trust here, there being the family relationship, the occupation as an accountant or a bookkeeper and the great level of autonomy you were given in relation to this business.

Background

15                Before turning to these submissions I want to turn but briefly to your family background. I have been taken to your background in some detail both in the oral and the written submissions as well as the portions in the report of Ms Lechner. There really is just no point me setting it all out again in my reasons. I accept that family background as it has been placed before me and it has really nothing at all to do with this offending.

16     I set out then really only some brief salient points. You were born on 12 September 1978 in Colombo. You are now 41 years old. You were one of two children and you were raised in Colombo where you completed schooling to Year 12 level before coming to this country for tertiary studies as a teenager. That also coincided with a period of great unrest and violence in your homeland, so you were happy to take leave of that instability and for good reason.  

17        You did a bachelor of business accounting at Deakin University. Before commencing in this work with the family company and that was in about 2012, you had worked for another franchisee for many years and there is a very strong reference from Mr Neofytou speaking of your performance over the sizeable period that he has known you.  Having left your cousin's business, you went on to become the food and beverage manager at Phillip Island Nature Park. That was for about a year ending in September of 2018.

18        Your father died in 2015 and for some reason, I do not understand why, you are estranged from your sister.  Your mother lives in Sri Lanka. I am told that you have little by way of genuine connection with Sri Lanka or at least people in Sri Lanka, and that would not be unusual given your age when you came to this country.  You have no prior criminal history at all and of course that is important.

19        You were held in immigration detention prior to bail being revoked and I take that into account in the broad fashion that has been contemplated by your counsel in his submissions to me. You are working as a billet and you will certainly be deported at the end of any sentence. That is not a direct consequence of the offending or the sentence that I will impose. You have not been lawfully in this country for quite some time and you were taken into custody by immigration authorities in April of this year.

Ms Lechner’s report

20    I have already mentioned the report of Ms Lechner.  I had something to say about the nature of that assessment in discussions yesterday.  I express as I have on countless occasions over the last six months my concern that psychologists are now it would seem routinely using video links to conduct assessments. It really should not be happening and ordinarily that factor I think will reduce the weight that any court will place on such a report.  Still of course none of this was your fault so I will take into account the report in the ways contemplated by your counsel and not focus on what I judge to be the shortcomings of that sort of assessment process.

21    Your counsel concedes that there is nothing in that report which reduces your moral culpability or in any way attracts any of the six principles from the well known case of R v Verdins, and I accept that that is so. The report is still of use. You have had issues with depression, gambling as well as alcohol and drugs. These things seem to have come to a head late in 2015. They certainly did not obscure your intent or in any way cloud your judgment or decision making. That aspect of the report is just not relied upon in any way by your counsel. You knew exactly what you were doing and you knew how serious it was.  Of that I have absolutely no doubt.

22    You also provide in your discussions with Ms Lechner over the video link your reasons for offending which it seems to me to an extent differs from the 17 December 2018 email and your account to the police. I am certainly not satisfied on the balance of probabilities that you were repaying debts with this money. Even on your own version you had debts of only $120,000 or so. I mean who knows if you did or did not have such a debt, I just do not know, but even if such a debt existed, it just would not explain the dimensions of this theft.

23    You were living the high life. You told your cousins in the 17 December email of using every cent of the money for personal self-gratification, alcohol, drugs, gambling. You told the police a very similar story, including using money to make gifts to others and to use prostitutes. Even a cursory examination of the banking records discloses stays at Crown Towers and the Windsor Hotel, dining out at a variety of restaurants including Nobu and Bistro Guilliame, Atlantic and Lau’s Family Kitchen.

24    You were propping up this extravagant lifestyle with the company's money and really you said as much in the police interview.  See Q154 “I was trying to get a lifestyle that was not possible, that wasn’t in my means”. I am confident that that is the position. Your counsel by the way was not suggesting that the supposed debt could explain the offending and conceded this aspect of extravagance in your lifestyle.

25    In any event I do take into account the report in the manner suggested by your counsel. You have developed some insight into gambling and drug and alcohol use and are getting counselling whilst in custody.  These are positive things.  You have taken responsibility for your offending.

Guilty plea

26    Let me turn to some of the other matters raised in mitigation.   The first of those is your guilty plea.  You have pleaded guilty and you have done that at the earliest opportunity.  That is important.  I take that early guilty plea into account in mitigation of sentence.  You have in this way taken early responsibility for your offending. The community has been saved the time, cost and the effort associated with the conduct of a committal hearing in the Magistrates' Court or a trial up in this court.  The various witnesses have been spared the experience of giving evidence in your case. You have facilitated the course of justice. I must and do reward you for these things. I must pass a lesser sentence upon you than I would have imposed if had you been found guilty by a jury.

27    I take into account in mitigation also your co-operation ultimately with your employers and then the police.  Now, as you know, and you do not need me to say it, initially you were not truthful to the company representatives, but that is not an aggravating factor and that changed by the 17 December when you then in my judgment made a clean breast of it. You then co-operated very fully with the police when they came knocking.  So I take that co-operation into account in your favour as well.

Remorse

28    I turn now then to the issue of remorse.  You have pleaded guilty at the earliest stage and you also expressed remorse in your discussions in the police interview and with Ms Lechner. Also to the authors of the three references placed before me.  Those are the three references from Mr Neofytou, Ms Khakham and Mr Pedris, and they are marked as part of Exhibit 3.

29    I also have your email that was sent on 17 December 2018. Why then have I had some reservations then as to the presence of remorse in this case in the face of all that material?  Well, I must say I was a bit concerned about your efforts to explain the offending to Ms Lechner in terms of the pressure of debts and not by reference to the extravagant lifestyle that you described in the police interview. I am not sure how you could have accumulated debts in a setting where you granted yourself pretty much an unlimited credit facility drawn down from your employer’s bank accounts. As I said earlier, I am just not satisfied on the balance of probabilities that you had these debts owed to loan sharks or that debts had a role to play in this offending. I do not doubt though that gambling had become an issue. So too drug and alcohol use.

30    You had undoubtedly fallen into an extravagant and quite false lifestyle. You told the police as much. You were using this money to live the high life and still seemed to have at least some difficulty in acknowledging that in discussions with Ms Lechner. You also mentioned aspects of revenge or resentment and having a sense of entitlement to the money which is a bit hard to follow actually, but it would run counter to feeling a sense of genuine remorse. In any event I have considered these matters overnight and having considered them I am prepared to find that you do feel a level of actual remorse for the crime that you have committed. I take that into account in your favour.

Rehabilitation

31      I turn then to your prospects of rehabilitation. You have pleaded guilty at the earliest stage. You are remorseful. You have been in prison already for a quite sizeable period. I have the various references placed before me. Those three references I have mentioned earlier, they are strong references from people who have known you for many years. I am not going to set out portions of those references. I take them all into account in your favour.

32      I also have the steps you have taken in custody. I have the letter from Bethany which is marked as part of that same exhibit. You have some insight into your gambling, alcohol and drug issues. You will, I am sure, to an extent be deterred by the period you have already served in prison on remand and the sentence I will pass which will extend that stay considerably.

33      You have no criminal history at all. The references speak of the out of character nature of this offending. Mr Neofytou speaks of your past exposure to substantial amounts of money over many years without any incident. As against all of that though, this was very serious offending, and it was over a period of close to three years. So it was not some isolated act.  We are dealing with multiple acts over years targeting your trusting employer and relative.  There was a very large breach of trust here and it relates to theft of high value. Very many individual acts of dishonesty rolled up into this single charge of theft.

34      I am not satisfied on the balance of probabilities that your conduct was in any way driven by need. I do accept though that you were a gambler but that is not relied upon in a mitigatory fashion and it provides only part of the explanation and the context. Your counsel argues though that you have very good prospects of rehabilitation. I am a bit more guarded than that, but not too much. I am confident that you should never be left in a position of trust every again. No doubt if you are honest with future employers you would not be so employed.

35      However you are trained in business accounting and you have experience as a bookkeeper. You have always worked in that sort of capacity. No doubt you will wish to work again in the future. I have no idea how that might play out in a different country. It is actually hard not to be a bit guarded here given the dimensions and the nature of your theft. Yes, of course it was out of character but it spanned close to three years. You were a mature person committing this serious crime over many years with that high level breach of trust. I do not rate your prospects as highly as your counsel suggests I should. I still though judge your prospects of rehabilation to be good.

Deportation

36      Those prospects plainly enough will take shape back in your homeland. Inevitably you will be deported. That is not as a direct consequence of your crime or my sentence. You were not here legally. You went into immigration detention prior to going into remand. As I have said, I will take that period of time into account in a broad Renzella type fashion. I accept that you will be deported. That will surely increase your custodial burden. It can never be easy going into custody for the first time for any person. You are doing so with much uncertainty that lies ahead.

37      When will you be deported, and what awaits you in your homeland, a land that you left back in 1998 and one where you have little connection after all these years?  I am sure there will be the spectre of family disapproval of your conduct as well. You are going to need to somehow start afresh. None of that will be easy and you will need to contemplate these various things whilst in custody. I am sure that will make it harder to serve this term and I do take that into account in mitigation in the way urged upon me by your counsel.

The Offences

38      I turn now then briefly to the offence.  I do not need to say too much as to the seriousness of the offending. Your counsel accepted that there were a number of aggravating features (see paragraph 17 of the defence outline). He described it as a gross breach of trust, with a significant degree of planning and sophistication and with aspects of revenge. It was not in fact massively complex offending. The thefts were hidden by you dressing up many of the deposits as deposits lawfully made in relation to company debtors, but it was as sophisticated as it needed to be. That is because you were so trusted. It was just unthinkable that you would offend. The Director’s mother and your mother were sisters.

39      You knew the systems in place. Your offending spanned close to three years and amounted to a sum a touch over $480,000. That sum was just frittered away.  It was frittered away to prop up a self-indulgent and extravagant lifestyle. As I have said, this was not offending driven by need. Your counsel concedes that you had what he describes as a high level managerial role with your employers. They were also relatives and you were trusted. This was very serious offending with no lessening at all of your moral culpability. .

40      This was plainly very serious offending with a large range of aggravating features as is conceded. It is true that we as Judges sitting in these courts see larger sums, sometimes in fact much larger sums. But a person can steal a large sum of money with a single stroke of a pen or a single transaction. An alteration to a single cheque or a single fraudulent transfer can do the trick. Here your dishonesty was ongoing for years. All of that time you had a duty owed to your employer and relative, a duty which you totally abandoned in favour of dishonest conduct to serve your own personal gratification. Though we see larger sums, sometimes much larger sums, this sum itself was substantial.  It is over $480,000.

Purposes

41      I turn then to the purposes of sentencing.  I have to consider a number of purposes. One of those purposes is your rehabilitation.  As I have said your future prospects are in my judgment good but there are many other purposes that come into play as well.

42      Consideration must be given to specific and general deterrence, to protection of the community, to denunciation and to punishment.

43      I am required to impose a just and proportionate sentence in relation to your offending.  You must be punished. That is obvious.  It is an important purpose for this sort of serious dishonest conduct.  I must also denounce your conduct and I do.  This was very serious offending indeed and I am sure you understand that.

44      There are other purposes of sentencing and one of those is the need for this court to seek to discourage or to deter you from offending in the future.  I clearly must give that principle of specific deterrence some weight in my sentencing task. Of course, I cannot ignore the personal references placed before me or the efforts you are making in custody as evidenced by the other materials filed on the plea. This was however serious long duration offending.

45      As I have said, I believe you have good prospects into the future, but you are only 41 years of age. You will wish to and will need to work in the future. No doubt you will seek employment down the track. You may yet find yourself in a position of trust again, given your qualifications. You will wind up in Sri Lanka. I have not the slightest idea as to whether you will be honest with future potential employers. I have no idea whether there will be probity checks upon you or whether if those checks are in fact carried out by an employer, that they would even lead to discovery of this prior conviction in this country. 

46      You must be deterred. Yes, you have no criminal record, I accept that, but against that is the fact that this offending spanned such a lengthy period. Specific deterrence is still then of some importance in my task. So too is community protection, not this community, but the community you will be heading to. These purposes must be given at least some weight. Now if you had less favourable prospects of rehabilitation or if you had relevant prior criminal history of course these purposes would be given far more emphasis in my task, but that is not the position.  They still have relevance to my task. I cannot just ignore them.

47      General deterrence is a very significant sentencing purpose in this sort of case involving as it does white collar fraud. You were in a position of great trust owing to your professional qualifications, your job description and additionally the family connections. These sorts of dishonesty crimes are difficult to detect or to detect swiftly and that of course is owing to the trust placed in the offender. This court must send a clear message to other individuals in the community in positions of trust that this style of serious criminal conduct will be met with a sizeable term of imprisonment.

48      I must pay regard to current sentencing practices though that is not a single controlling factor.  I have looked at the Sentencing Advisory Council's snapshot for theft.  That is snapshot number 227 of 2019. It really does not help me in my task at all. Theft covers a multitude of differing factual settings. Sometimes there is a breach of trust, sometimes there is none. There can be differing amounts, differing durations, differing numbers of acts and motivations. Some charges are rolled up charges, some relate to a single isolated act. Statistics do not spell out any of that detail at all. Statistical material therefore always has limitations. It says nothing at all about the individual features of the offence or of the offender.  I have also looked at the Judicial College of Victoria sentencing manual overview of cases dealing with theft at 32.15.1.1.

49      I have examined some cases in more detail, for instance the case of Caulfield [2019] VSCA 131. That is a case with a person with no criminal history, with a similar amount of money over a similar period, but with far fewer acts, and with in my judgment significantly lesser breach of trust. There was greater impact in that case but forgiveness by one of the victims and a pretty unfortunate personal background of the accused.

50      The fact is though that other cases are not precedents. One will never find an identical case, a case on all fours.  There are always differences in the offending and in the personal circumstances.  At the end of the day, what I have to do is pass an appropriate sentence in your case for your crime, a crime committed over a lengthy period and in a setting of a significant breach of trust and netting over $480,000, all of which remains outstanding. Not a cent has been repaid. The insurers have sustained that loss.

51 Prison is a disposition of last resort. Your counsel concedes there is just no option but to imprison you and of course he is right. He mentioned the likelihood of a sentence attracting a non-parole period, and again he is right. I cannot factor in your certain deportation in deciding whether or not to fix a non-parole period. When a sentence of two years or more is selected, as it plainly must be here, there are only two matters set out in s.11 of the Sentencing Act 1991 which justify a court not fixing a non-parole period and neither of those things exists here. I must fix a non-parole period and I am required to ignore the issue of deportation for the purposes of fixing that non-parole period.

52      I have taken into account the principle of totality. In addition I have taken into account, as I have said, the period that you spent in immigration detention prior to being remanded. That cannot be treated as strict pre-sentence detention, because it is not, but I take it into account in the broad fashion contemplated by your counsel in his submissions to me.

53      I have engaged in a last look at the sentence imposed by this court to ensure that it is commensurate with your criminality and to guard against the imposition of a crushing term upon you.  Your criminality was very high here as is conceded.

Compensation order

54 Let me turn then to the ancillary orders. The first of those is an application for compensation pursuant to the provisions of s.86 of the Sentencing Act. That is not opposed. I regard it as appropriate to make that order and I have signed it. I order then that you pay to Chubb Insurance, and this is in relation to the theft from D.B. Anelda Pty Ltd compensation in the sum of $484,147.58. I have signed that order.

464ZF

55 Secondly, there is an application for what is described as a forensic sample. It is not opposed and I regard it as appropriate to make that order. I direct then that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the provisions of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I judge it as appropriate to make that order and I am satisfied it should be made owing to the seriousness of the offending, the fact that it is not opposed and that I judge it to be in the public interest.

56      I am dealing with a request that will be made of you by a person in a position of authority in custody for you to conduct a mouth swab.  That is what I am authorising, the taking of a scraping from your mouth.  I am not authorising the more invasive process of a blood sample.  I have to tell you though that the authorities can use reasonable force to obtain that mouth swab.

57      There should not be any issue at all.  It is not a particularly invasive process, but no doubt if it presented difficulties then the authorities would be back before me making application for the blood sample, which at this point I have not authorised. I have signed that order and I regard it as appropriate to make that order.

Sentence

58      Please stand up, Mr Amerasekera.  On the charge of theft, that is Charge 1 on the indictment, I convict and sentence you to a period of three years' imprisonment. That is therefore the total effective sentence.

Non-Parole Period

59      I fix a period of 22 months during which you will not be eligible for release on parole.

Pre-Sentence Detention

60 There is a period of 191 days pre-sentence detention. That period is to be noted in the records of the court pursuant to s.18 of the Sentencing Act.

Section 6AAA

61      I have told you that I have taken into account your guilty plea. Had you pleaded not guilty and been found guilty by a jury, I would have imposed a greater sentence.  In those circumstances I would have convicted and sentenced you to a period of four and a half years' imprisonment, and I would have fixed a non‑parole period of three years and two months. That s.6AAA statement is to be noted in the court records.  Have a seat then for a moment please.  Are there any other matters at all?

62      MR COOKSON:  No, Your Honour.

63      MR PATON:  No, Your Honour.

64      HIS HONOUR:  You will go down and see your client downstairs?

65      MR PATON:  Yes, I am, Your Honour.

66      HIS HONOUR:  Thank you.  I have signed that formal order then so Mr Amerasekera can be removed, thank you, and Mr Paton will come down and see you downstairs.

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