DPP v Chapman

[2016] VCC 231

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

AT MELBOURNE

CRIMINAL DIVISION

Case No. CR-15-01799

DIRECTOR OF PUBLIC PROSECUTIONS

v

SHANE CHAPMAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	19 February 2016
DATE OF SENTENCE:	22 February 2016
CASE MAY BE CITED AS:	DPP v Chapman
MEDIUM NEUTRAL CITATION:	[2016] VCC 231

REASONS FOR SENTENCE
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Subject:  Theft from employer $250,000
Sentence:                 3 year community corrections order

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APPEARANCES:	Counsel	Solicitors
For the DPP	MS A Bhai
For the Accused	Mr S Gardner

HIS HONOUR:

1      Shane Chapman, you have pleaded guilty to three charges of theft.  Your offending occurred during the course of your employment between 4 April 2014 and 20 January 2014.

2      The maximum penalty for the charge of theft is ten years imprisonment.

3      The circumstances of your offending are contained in a summary of prosecution opening dated 3 February 2016.  The summary was read in open court by the prosecutor Ms Bhai and was acknowledged as being accurate and as being a proper basis upon which I can proceed to pass sentence upon you by your counsel Mr Gardner.

4      It is not necessary that I hear set out in full the circumstances of your offending which, as I say, are set out in the prosecution summary.  I do so only in a very summarised way.

5      In February 2014 you commenced employment on a part-time basis as the accounts payable officer with an organisation whose specific purpose was non-profit but to assist with the employment of persons with an intellectual disability.  Between 4 April 2014 and 20 June 2014 (a 2 ½ month period) on 21 separate occasions you diverted payments intended for the creditors of your employer to an account in the name of a company controlled by you.  The charges that you have pleaded guilty to embrace the 21 occasions on which you stole money in this way on a representative basis.

6      By this means you stole $253,280.30.  On 10 occasions you repaid a total of $98,409.09 from the same account on a “robbing Peter to pay Paul” basis.

7      I accept that your offending was somewhat amateurish and unsophisticated.  Your offending did not have complicating features such as one often sees in embezzlement cases where the offender falsifies accounts and prepares false invoices.  Your offending was that of straight out theft and it was inevitable that you would be caught.  As could be expected it was disclosed when a creditor complained at not having been paid.  The complaint was made in your absence.  When confronted you made an excuse that was easily proven to be wrong and your offending was thus exposed.

8      The most obvious aggravating feature of your offending is that it constitutes a breach of trust placed in you to care for the funds of a not-for-profit organisation so soon after your employment commenced.  Although, in my opinion, your offending does not fall within the category of the most serious embezzlements, it is nonetheless serious offending.  Employers, particularly those in the position of your employer being a not-for-profit organisation, must be able to conduct their commercial affairs trusting those that they employ to be honest.  Your offending breached that trust and that is why it is serious.  Your counsel submitted your offending was isolated and opportunistic.  I accept those submissions.

9      You have pleaded guilty to the charges and you indicated your intention to do so at the earliest possible opportunity.  In passing sentence I must take your plea of guilty into account as well as the time at which you indicated that you would do so.  In my opinion you are entitled to a reduced sentence because of the way you have pleaded guilty which has saved the time and cost of a committal and trial.  I also treat your plea of guilty as indicative of remorse.  When you were interviewed you expressed remorse to those interviewing you.

10     You were arrested and charged on 30 November 2014 and you made frank admissions to the police when interviewed.  You told the police, and I accept, that your motive in offending was to finance a gambling habit which you had acquired.  Your gambling preference was to place bets on sporting events.  Your gambling habit is not an excuse for this offending but it does assist in explaining it.

11     You were 31 years of age at the time of this offending and you are now aged 33 years.  You are married and have been so for nine years.  You grew up in a caring and supporting family.  I was encouraged that you were well supported in the court by family and friends.  You were educated to Year 12 level and gained entry to Monash University where you studied for but did not complete a degree in commerce.  You had various part-time jobs as a student and commenced your own book keeping company which had financial difficulty.  It seems that this failure caused you to suffer from depression.  You are of above average intelligence.

12     You have no prior criminal history.  I accepted into evidence a number of personal references each of which speaks highly of you and I accept that this offending aside you have otherwise led an unblemished life.  That is all to your credit and I have taken this into account.  You have had periods where you have imbibed illicit recreational drugs which you have disclosed to psychologists who have treated you or written reports about you.  You have had a drink-driving offence which is of no relevance here in my view.

13     There are no subsequent matters nor any alleged outstanding matters yet to be dealt with that need to be taken into account.

14     I received into evidence a medical report from Dr Downe who confirmed that you attended at his clinic with features of “significant anxiety and depression” on 29 January 2014 before this offending.  His report indicates that he prescribed medication and when seen again on 21 March 2014 there was some improvement.  Dr Downe referred you to a psychologist who has confirmed by letter that she saw you for seven sessions for treatment for depression between 7 May 2014 and 25 March 2015.  I also accepted into evidence a report from a clinical psychologist Bernard Healy who confirms that you suffer from a gambling addiction caused by depression.  In passing sentence I have taken all of these features of your case into account.

15     In normal circumstances for offending of this kind the court must take into account proper application of the principle of general deterrence.  The sentence imposed by the court must deter others who may seek to offend in a similar way.  The sentence imposed must also serve to denounce this kind of offending.  The sentence must also reflect just punishment and have proper regard to the prospects of the offender's rehabilitation.  I accept that before this offending commenced you were suffering from and being treated for depression and I accept that this is a relevant factor in sentencing you.  I must take it into account in reducing the significance of the sentence to impose proper application of the principle of general deterrence and I must take it into account in determining the kind of sentence that I will impose.

16 I have formed the view that your prospects for rehabilitation are reasonably good. Your counsel asked me to impose a community corrections order. He submitted, and I accept, that the imposition of a community corrections order with appropriate conditions can properly serve to address each of the relevant principles of sentencing. The prosecution in this case concedes that a disposition involving a community corrections order with appropriate conditions is within the sentencing range. No doubt that submission has taken into account proper application of s.5 sub-s.4 of the Sentencing Act which requires the court to consider all sentencing options before imposing a sentence involving incarceration.

17     On each of the charges I make a community corrections order with conviction for a period of three years. There will be conditions for 300 hours unpaid community work, supervision, treatment and rehabilitation for mental health - this is designed to assist you overcome your gambling addiction and your depression - and for treatment and rehabilitation programs to reduce offending.

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HIS HONOUR:  Now Mr Chapman do you understand the sentence that I have imposed?

ACCUSED:  I do Your Honour.

HIS HONOUR:  Was it explained to you by the person carrying out the assessment?

ACCUSED:  Yes it was Your Honour.

HIS HONOUR:  Most importantly you must not commit any offence, that means any offence, punishable by a term of imprisonment within the next three years.  Do you understand?

ACCUSED:  I understand Your Honour.

HIS HONOUR:  If you do that you will be brought back before me to be dealt with for breaching the order and it's possible that you could be resentenced on these charges.  Do you understand that?

ACCUSED:  I understand Your Honour.

HIS HONOUR:  Now it's also important that you comply with the conditions of the community corrections order.  If you do not you can also be brought back and charged with breach of the community corrections order and again dealt with.  Do you understand?

ACCUSED:  I understand Your Honour.

HIS HONOUR:  Very well.

ASSOCIATE:  Could you come forward please.  Do you confirm that this is your signature?

ACCUSED:  I do.

ASSOCIATE  Thank you.

HIS HONOUR:  The prosecution has sought an order for the taking of a forensic sample.  That application was not opposed and for the reasons disclosed in the order I have made that order.  Mr Chapman this means that within four weeks of today, 28 days of today you must report to the Knox police station at 414 Burwood Highway, Wantirna South for the purpose of furnishing a forensic sample from your body.  Which is just a swab taken from your mouth.  Do you understand?

ACCUSED:  I understand Your Honour.

HIS HONOUR:  You must comply with that order also and I've signed the community corrections order.  Are there any matters arising out of that?

MR GARDNER:  6AAA is the only other matter that Your Honour - - -

HIS HONOUR:  Yes.

MR GARDNER:  It's unscrambling the egg I know.  But - - -

HIS HONOUR:  No.  No just a moment.  For the purposes of s.6AAA had it not been for your plea of guilty to the charges I would've imposed a sentence of three years imprisonment and directed that you serve a non parole period of two years.

MS BHAI:  As Your Honour pleases.

MR GARDNER:  May it please the court.

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