DPP v Bezuidenhout

[2016] VCC 1070

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02225

DIRECTOR OF PUBLIC PROSECUTIONS

v

ZENOBIA BEZUIDENHOUT

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JUDGE:	HIS HONOUR JUDGE MASON
WHERE HELD:	Melbourne
DATE OF HEARING:	1 & 14 April, 15 July 2016
DATE OF SENTENCE:	25 July 2016
CASE MAY BE CITED AS:	DPP v Bezuidenhout
MEDIUM NEUTRAL CITATION:	[2016] VCC 1070

REASONS FOR SENTENCE

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Subject:Plea – sentencing

Catchwords:             Theft

Legislation Cited:     Sentencing Act 1991

Cases Cited:            Boulton & Ors v The Queen [2014] VSCA 342
  Sherritt v The Queen [2015] VSCA 1

Sentence:                  5-year Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Parkes	Office of Public Prosecutions
For the Accused	Mr M. McGrath	Stary Norton Halphen

HIS HONOUR: 

1Ms Bezuidenhout, please remain seated until I ask you to stand.

2Zenobia Bezuidenhout, you have pleaded guilty to one charge of theft.  This offence carries a maximum penalty of ten years' imprisonment.

3You were born on 19 November 1982, so you are now aged 33.  You were aged 30 to 31 when this offending occurred from January 2013 to May 2014. 

4You do not have a criminal record.

5During the period of the offending, you were an employee of Telstra Corporation Ltd. 

6You commenced employment with Telstra in 2009 in a retail store in Albury.  You then transferred to the Melbourne Icon Store on Bourke Street in Melbourne.  Whilst working in these stores, you learnt that the purchase orders for business customers could be made by emailing the details of the orders to retail staff.  The items could then be collected by either the customer or the Telstra representative.

7In 2011 you moved to Telstra's enterprising sector, where you worked as a billing consultant. 

8In August 2013 you were promoted to the position of billing specialist.  In this role you were not authorised to make purchase orders on behalf of Telstra business customers.

9In May 2014 Telstra contacted police as a result of internal investigation into your activities.  The investigation revealed that you had placed numerous orders with Telstra retail stores without authorisation.

10You created fake purchase orders for mobile phones and tablets.  Some orders were placed under Telstra small business customer accounts.  Others were placed under SPI Powernet accounts.  All of the orders were placed without the customer’s knowledge or approval. 

11You would collect the mobile phones and tablets personally from the retail store.  You would then make a series of adjustments in the accounts in order to prevent any charges appearing on the customer accounts. 

12You then used the classifieds website Gumtree to sell the stolen mobile phones and tablets.  You developed a relationship with an initially unidentified male who would buy mobile phones and tablets from you on a regular basis.  He would contact you with an order for phones, and you would sell the phones and tablets to him at a reduced price and make a profit as a result of the sale.

13Charge 1 is a rolled up charge comprising 65 unauthorised orders placed between 17 January 2013 and 1 May 2014.  The transactions are set out in Schedule A of the indictment and are outlined in detail in the Summary of Prosecution Opening tendered on the plea.

14In summary, the total value of the property stolen is calculated as follows:

-    actual loss to Telstra, $257,622;

-    net gain to you from the sale of 406 phone and tablet units, approximately $100,000. 

15This loss to Telstra has subsequently been reduced by a recent payment by you of $4,900.

16Your employment was terminated on 13 May 2014. 

17The offending began in January 2013 and continued up until 1 May 2014, a period of some 15 months.

18You were arrested and taken to the Melbourne West Police Station, where you were interviewed on 28 October 2014.  When interviewed, you made full admissions to creating fraudulent purchase orders which enabled you to collect mobile phones and tablets from the retail stores.  You then deleted the order from the system.  You stated that you would then sell the mobile devices on eBay.  You stated further that after a period of time you stopped selling the devices through eBay and began dealing with one person, who would give you approximately $200 for each device.

19You stated that you committed the offences because you were having financial issues.  You also said that you were earning $65,000 per year, but had accumulated up to $100,000 in unpaid parking and CityLink fines, on top of a liability for a $16,000 personal loan.  When asked why you committed the thefts you said, "I don't know why, to be honest …. it was just an easy option".

20You used the money you received from your thefts to pay the civic compliance fines and penalties.  When asked why you accumulated so many fines you said you were working in the city, you could not afford parking fees, and it was either that or do not work and do not have any money.  You also told police that you were really sorry and that you intend to pay back all the money.

21This matter resolved at a further committal mention at Melbourne Magistrates' Court on 15 December 2015.  You pleaded guilty and the matter proceeded by way of straight hand-up brief to the County Court.

22I now turn to your personal circumstances. 

23As I noted earlier, you are now 33, you were 30 to 31 when this offending occurred, and you have no criminal record.

24You were born in Zimbabwe and came to Australia with your parents aged seven or eight.  You proceeded through school, did well academically and completed year 12 just prior to your 16th birthday.  You commenced studying nursing but discontinued when offered employment in a nursing home.  At the time your family was under financial strain and you assisted in paying the mortgage.  You are currently studying a Bachelor of Accounting through Open University.

25You worked at the nursing home for three years, and during that time commenced a de facto relationship with your employer Mr Doull.  You were 18, he was 31.  In 2002 Mr Doull opened a medical supply business.  You worked in that business for six years until 2008.  During the time you worked in the business you claim never to have been paid, other than small amounts of pocket money.  You have two children from the relationship, both girls, aged ten and nine.

26The relationship was not happy and ended when you left in March 2008.  You have given evidence that your ex-partner was domineering, controlling, and became physically violent when you left him.  In July 2009 you were assaulted by your ex-partner and received soft tissue injury to your head.  This is documented by hospital reports tendered.

27Medical reports also confirm suicidal thoughts in early 2008 and again in mid-2009.  The separation has been marked by continuing conflict over custody and child support issues.  You have now abandoned any property settlement proceedings and do not receive child support payments.

28Your father died in 2003.  Your mother had been entirely dependent upon him, and since then you have assisted your mother with her finances and with other support.

29You commenced employment with Salmat, a call centre for Foxtel.  You rose to team leader before joining Telstra in 2011.  For the first 18 months you worked with the Complex Billing team, then, with high recommendations, moved to the position of Tabcorp Billing Specialist.  Your duties included resolving complex enquiries through the analysis of customer data/accounts and making necessary adjustments in accordance with the customer contract.  Your work in that capacity was also highly regarded by your immediate supervisor at Telstra.    

30Psychological reports from Ms Cookson and Ms Lechner were tendered on your plea.  Ms Cookson was essentially treating you for depression and general emotional fallout from the revelation of your conduct and dismissal from Telstra.  Specific issues were anxiety over ongoing difficulties with your ex-partner, and fears you might lose your new job and custody of your children.  There was a background history of depression following separation from your ex-partner in 2008.  Ms Cookson noted that you appeared burdened with a range of emotions, including considerable guilt and shame.  You had, however, responded well to treatment from the counselling sessions with her.

31Ms Lechner saw you in March this year and advised that you presented with depression at a clinical level.  Moreover, your history revealed an extended period of mood disturbance in the context of an unhappy relationship, acrimonious separation, chronic financial stress and the stress of supporting your mother and children.  Ms Lechner also noted that you expressed “extreme shame” over your offending, that you require ongoing counselling but that you have positive rehabilitation prospects and may benefit from community support and supervision.

32Since being dismissed from Telstra you have managed to obtain employment with another company - a finance company.  They are not aware of your current circumstances.  You started in July 2014, became an area manager, and by early this year were offered the role of National Training and Support Manager.  This position involves you being responsible for 66 branches.  You must be highly regarded.  You have now been appointed to that role on a salary of $94-95,000 per annum.

33Theft is justly regarded as serious offending, and such is reflected in part in the penalty imposed by parliament.  The seriousness of the particular context of this offending is reflected in the amount stolen, the breach of trust and the sustained manner of offending.

34The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community.  In sentencing, I must have regard to a range of matters, such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim.  I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.

35In mitigation, I take into account the matters urged on your behalf by your counsel, including your plea of guilty and the early time it was entered.  You acted quickly and openly to the investigation and made frank and full admissions, explaining the procedures you adopted in order to commit the thefts and what led you to undertake that behaviour.  Independent evidence has confirmed that explanation.  This has saved the time and cost of a committal and trial.

36I also treat your plea of guilty as indicative of remorse.  When you were interviewed you expressed remorse to those who interviewed you in the investigation, and to others who have spoken with you, including the character witnesses and both psychologists.  Your remorse is also indicated by your intention to repay the loss to Telstra and the effort you have already made in that regard.  I note that on 22 July this year, you paid the sum of $4,900 into Telstra's nominated account, as part of a commitment to repay the company's loss.  You also agreed to assist police in locating the person to whom you sold the Telstra items.

37I take into account also your lack of any prior convictions and the good character examples that were given in the testimonials.  Also, your otherwise excellent employment record, including commitment and a high capacity for sustained and challenging work.  I accept that as well as talent you have had to work very hard for what you have achieved, and it is very much to your credit considering your background.

38I also take into account your commitment to your children and wider family, especially in the context of the disturbing and stressful circumstances of your unhappy relationship with your ex-partner which continued after separation, your prospects of rehabilitation, which I assess as high given your remorse and sense of guilt, your cooperation and frank admissions, your intelligence, employment history and the support you have from your close extended family, and your history of periods of anxiety, stress and depression, including suicidal thoughts prior to this offending.

39Whilst it was not submitted, and I accept that there is insufficient evidence to establish your mental state at that time as reducing your moral culpability, I accept that it is very likely that you were emotionally vulnerable leading to the development of the thefts, and at the time of the thefts, and that the conduct creating the serious civic compliance debts, and then the theft itself, was committed in this context.

40I take into account the anguish and concern that you have lived with at the prospect of the separation of you from your two young children and being unable to care for them.

41While sympathy and understanding of your difficulties as a single mother raising two young children with little financial support and in the context of an inharmonious past relationship must be considered, this does not excuse your conduct.  There are many others in a similar position, and unlike you do not have the personal resources to gain and maintain the sort of quality employment that you had.

42You are clearly an intelligent and highly capable person.  You progressed successfully through year 12 at the age of 15.  You had a bright future.  There was a rational and appropriate way to approach your difficulties.

43The massive accumulation of civic fines and penalties you incurred with a view to working out a payment plan later was a foolish exercise in self-delusion.  The debt that developed does not excuse your acts of theft which were coldly calculated, involved breach of trust and sustained over an extended period.  In my view, your moral culpability is high.

44I have carefully considered the evidence and authorities concerning the issue of whether hardship to your children should be a matter for application on the issue of your incarceration.  In my view, whilst you have been the primary carer for the children and the children are susceptible to emotional reaction, there has been regular contact with their father, their aunt, grandmother and extended family who would be available to provide competent care, and in my view the circumstances are not exceptional.

45Ordinarily for an offence of this nature, an offender should consider that a sentence of imprisonment to be immediately served is the most likely outcome.  Whilst considerations of deterrence may be ameliorated by your personal circumstances, absence of any prior convictions and prospects of rehabilitation, they are not eliminated.  Commercial theft is often difficult and expensive to uncover, and denunciation by the court and general deterrence - that is, a sentence that is designed to deter other like-minded offenders - remain as important, applicable principles quite apart from the specific need to impose a sentence that will deter you from re-engaging in similar conduct.

46In sentencing you, I have taken into account as best I can the material available as to current sentencing practices.  In doing so, I have read and considered the cases referred to me by both counsel on the plea, as well as the statistics overview and summaries provided by the Judicial College manuals and Sentencing Advisory Counsel.

47As was referred to in discussion, most of this material predates the significant change to sentencing considerations that has developed since amendments to the Sentencing Act concerning community correction orders in September 2014 and the decision of the Court of Appeal in the case of Boulton & Ors v The Queen[1] in December 2014.  I have given close attention to the principles expressed in that decision, and to the further expressions of the Court of Appeal on this subject in subsequent decisions.

[1] Boulton & Ors v The Queen [2014] VSCA 342

48In the case of Sherritt[2], the court said as follows: 

"The court in Boulton emphasised that if the CCO is to serve the purpose for which parliament quite clearly envisaged it, sentencing courts, including this court, need to rethink the conventional wisdom about whether prison is really the only option.  The court was at pains to spell out the grave disadvantages of imprisonment both for the offender and for the community, and the unique advantages of a community correction order in enabling real punishment to be imposed at the same time as advancing the offender's rehabilitation in a way no prison term ever can."

[2] Sherritt v The Queen [2015] VSCA 1

49In the case of Boulton, the court said as follows:

"The availability of the CCO dramatically changes the sentencing landscape.  The sentencing court can now choose a sentencing disposition which enables all of the purposes of punishment to be served simultaneously in a coherent and balanced way, in preference to an option (imprisonment) which is skewed towards retribution and deterrence.

"The CCO option offers the court something which no term of imprisonment can offer, namely, the ability to impose a sentence which demands of the offender that he/she take personal responsibility for self-management and self-control and (depending on the conditions) that he/she pursue treatment and rehabilitation, refrain from undesirable activities and associations and/or avoid undesirable persons and places.  The CCO also enables the offender to maintain the continuity of personal and family relationships, and to benefit from the support they provide.

"In short, the CCO offers the sentencing court the best opportunity to promote, simultaneously, the best interests of the community and the best interests of the offender and of those who are dependent upon him/her.  On this analysis, if defence counsel submits that a CCO would be appropriate, it is no answer for the prosecutor (or a judge) to say, 'How could a community correction order be appropriate, given that an offence of this seriousness has always received imprisonment?'  As we have endeavoured to explain, that question should mark the beginning, not the end, of the court's consideration."

50The court continued:

"The views we have expressed are reinforced by the recent insertion into the [Sentencing] Act of s.5(4C).  This provision came into force on 29 September 2014, after the completion of argument in the present proceeding.  The new subsection provides as follows: 

A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.

…….

"What is most powerful about s.5(4C) is that it prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to

(a)the purposes for which the sentence is to be imposed on the offender; and

(b)whether those purposes can be achieved by a CCO to which one or more of the specified (onerous) conditions is attached.

"The process of deliberation which this provision requires should assist in the reconceptualization of sentencing options to which we have referred.  In particular, that process will throw into much sharper focus the distinction we have sought to draw between the narrow, punitive purpose (and effect) of imprisonment, on the one hand, and the multi-purpose character of the CCO.  The sentencing court should ask itself a question along the following lines: 

Given that a CCO could be imposed for a period of years, with conditions attached which would be both punitive and rehabilitative, is there any feature of the offence, or the offender, which requires the conclusion that imprisonment, with all of its disadvantages, is the only option?"

51Now, there is no doubt in my mind that your prospects of rehabilitation will clearly be better enhanced if you are able to maintain your work and the personal care of your young children.  A community correction order will enable that continuity and the support you can get from your extended family.  Your rehabilitation is important not just for your sake, but also in the wider interests of the community.

52My great concern in this matter has been whether a sentence to a community correction order alone or in combination with a sentence of actual time to be served in custody is sufficiently punitive and appropriately reflective of the serious nature of the offending.

53On balance, in the particular circumstances of this case, I am persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison.  The authority of Boulton anticipated the community correction order as being a disposition which enables all the purposes of punishment to be served simultaneously in a coherent and balanced way in preference to the option of imprisonment, which is skewed towards retribution and deterrence.

54In important respects a community correction order can reflect very significant punishment.  First, it can be imposed to operate for a significant period of years.  Then, there can be onerous conditions attached.  Further, there is the penalty of potential imprisonment for any breaching offence, and a contravention of the terms can result in re-sentencing for the original offence.

55The breach provisions provide a powerful disincentive for further offending, and the imposition of time to be served in unpaid community work can represent significant punishment, particularly for a person who is otherwise engaged in full-time work.

56In light of the particular extenuating circumstances of this case, an appropriately tailored community correction order would, in my view, fall within appropriate sentencing range.  You have been assessed as suitable for such a disposition.

57In all the circumstances, given that the order can in my view be sufficiently punitive through its duration and terms of unpaid service in the community, I am satisfied that a sentence involving total imprisonment or some portion of actual imprisonment is not the only appropriate sentence.

58The terms will not be easy for you when consideration is given to your employment and single parenting responsibilities.  The order will make demands on your time that would otherwise be spent in rest and recreation and the enjoyment of time with your children.  I have no doubt it will represent a continuing burden upon you for a considerable time.

59Ms Bezuidenhout, could you please now stand.

60On Charge 1 of theft you are ordered, with conviction, to serve a community correction order for a period of five years. 

61The community correction order commences today and ends on 24 July 2021.  The Corrections centre you will attend is the Sunshine Community Corrections Services at 10 Foundry Road, Sunshine, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm on Wednesday 27 July 2016.

62All the mandatory terms of a community correction order apply, and the additional conditions I impose are that:

·    you perform 375 hours of unpaid community work, to be completed within three years as directed by the regional manager; 

·    you be under the supervision of a Community Corrections Officer; and 

·    you undergo mental health assessment and treatment, including but not limited to mental health, psychological, and if necessary neuropsychological and psychiatric, in a hospital or residential facility as directed by the regional manager.

63I will now explain the mandatory terms of a community correction order to you.  The mandatory terms 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 comply with the requirements of regulation 17 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the Community Corrections Centre - such things as not attending drug or alcohol-affected;

·    you must report to and receive visits from a Community Corrections Officer;

·    you must report to the Community Corrections Centre, that is the Sunshine centre, within two clear working days of the order starting, and as I have already indicated that is by Wednesday this week, 27 July;

·    you must notify a Community Corrections Officer of any change of address or employment within two clear working days after the change;

·    you must not leave Victoria without first getting permission to do so from a Community Corrections Officer; and

·    you must obey all lawful instructions and directions of Community Corrections officers.

64Do you understand and agree to those conditions, Ms Bezuidenhout?

65OFFENDER:  Yes, I do.

66HIS HONOUR:  If you get sick or if there are exceptional circumstances, the order may be suspended for a period of time.  If your circumstances materially alter you may apply for a variation or cancellation of the order.  In either case you must notify the Sunshine Community Corrections Centre, and I would recommend that you obtain legal advice if any of these things happen.

67However, I must warn you that if you breach any condition of this order you will be brought back before court, and that will be back before me.  One of the options open to me is to cancel the community correction order and re-sentence you on the original charge.  And I may also deal with you for any breach offence by sending you to prison for a period of up to three months on that offence alone.  So do you understand the consequences of breaching your community correction order?

68OFFENDER:  Yes, I do.

69HIS HONOUR:  All right, I will ask you to sign the community correction order shortly.  You can be seated for the moment.  There are further matters to which I need attend.

70At the plea hearing, the Crown made an application for a forfeiture order which you did not oppose, and I have made that order today.

71The Crown also sought an order for the taking of a forensic sample, which was opposed.  However, I have made that order today, for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order and the granting of the order is in the public interest.  In many cases of deception and fraud, valuable evidence can be obtained by DNA sampling.

72I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be undertaken.  Do you understand that, Ms Bezuidenhout?

73OFFENDER:  Yes.

74HIS HONOUR:  Are there any other matters, counsel, before the community correction order is signed?

75MS PARKES:  Compensation order, Your Honour.

76HIS HONOUR:  The compensation order is separate to this process.

77MS PARKES:  Yes, Your Honour.

78MR MCGRATH:  No, Your Honour.

79HIS HONOUR:  All right, thank you.  If the order could be passed now.  Ms Bezuidenhout, there is one further matter, if you just stand for a moment.

80Sometimes when people get on community correction orders, they tend to push the envelope about times when they are not turning up, not giving appropriate reasons, not providing documentation if there is a particular issue such as illness.  Those matters are treated seriously by Corrections, and they are treated very seriously by me.

81This order is going to continue for a considerable time.  I have tailored the hours so that you can work, understanding that you can only work probably on Saturdays, on the basis of generally an attendance a fortnight if you need to, because you will be needing to do matters with the children on Saturdays sometimes for other arrangements.  But if you do it regularly you will work through it within the 3-year period, and it does not require you to be there every Saturday morning.

82OFFENDER:  Thank you.

83HIS HONOUR:  All right, so I have given you that understanding.  But if you are not showing a real commitment to the terms of this order, you are likely to be breached, and when you come back before me I will take a very dim view about that.  Do you understand that?

84OFFENDER:  I do.

85HIS HONOUR:  It is still going to require real commitment on your part, and there will be times when it will be frustrating.  You will not like it.  But that is the punishment.  You know what the alternative is.

86Now, as to the compensation order, it seems to me in the circumstances the financial circumstances are such that the order can be complied with, with a reasonable commitment, and I ought to make the order in terms of the sum that is currently outstanding, which I understand is $252,722.

87MR MCGRATH:  Yes, Your Honour.

88MS PARKES:  As Your Honour pleases.

89HIS HONOUR: And I make that order under s.86 of the Sentencing Act.  I should thank you both, counsel, for the work that you have put in during the course of this plea.  It has been very helpful.  Thank you.

90MS PARKES:  Thank you, Your Honour.

91MR MCGRATH:  Thank you, Your Honour.

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