DPP v Howard
[2018] VCC 967
•25 June 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT BALLARAT
CRIMINAL JURISDICTIONCR-17-01597
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KELLY HOWARD |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Ballarat |
| DATE OF HEARING: | 25 June 2018 |
| DATE OF SENTENCE: | 25 June 2018 |
| CASE MAY BE CITED AS: | DPP v Howard |
| MEDIUM NEUTRAL CITATION: | [2018] VCC 967 |
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
Sentence:3-year Community Correction Order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. O'Doherty | Office of Public Prosecutions |
| For the Accused | Mr P. Dunn QC | A. B. Natoli Lawyers |
HIS HONOUR:
1Kelly Howard, you have pleaded guilty to eight charges of theft. This offence carries a maximum penalty of ten years' imprisonment.
2You are currently 44 years of age having been born on 23 July 1973. At the time of the offending, you were aged from 38 to 42 years.
3You have no criminal record.
4By way of background to this matter, at the time of the offending you were a fully qualified accountant for Accountable Bookkeeping Solutions, Ballarat. Between 2005 and 2016, you were involved with the Wathaurung Aboriginal Corporation due to strong family connections. From 2007 you began completing the corporation’s bookkeeping and accounting on a voluntary basis and subsequently had full control and access to all of the Wathaurung Aboriginal Corporation financials.
5At the present time I am not going to recite all the particular circumstances of each of the charges. They have been read into court and they are tendered as Exhibit A and I sentence you on those agreed facts. These more particular details are included as Appendix A in these sentencing remarks.
6The various amounts taken were applied to, as much as can be determined, a home loan for your premises, your daughter's dance classes, a property for your mother in Horsham, payment of rent for when you were residing at other premises, your credit card and debt, and landscaping at a newly purchased property at Alfredton.
7You were arrested on 30 June 2016 and you attended the Ballarat police station where you were interviewed. During the formal interview, you were very cooperative and you made admissions to thefts totalling over $200,000.
8On 28 July 2016, you re-attended the Ballarat police station where a further interview was conducted by consent. During this interview, you were again very cooperative and made further admissions, totalling the thefts to be in excess of $240,000. I will refer to that a little later in more detail.
9As to your personal circumstances, as I noted earlier you are now 44 years of age, at the time of the offending you were aged from 38 to 42 and you have no prior criminal record. I am advised you have no subsequent offending and nothing pending.
10You experienced a disadvantaged childhood. You understand that your mother gave birth to you when she was 15 and further understand that your mother and biological father were never formally together. Your stepfather, who is aboriginal, has been part of your life since you were aged two. Your mother and stepfather had a turbulent relationship and there were incidents of domestic violence.
11You initially believed that your stepfather was your biological father. When you were 12 your stepfather, when intoxicated and in a moment of violence, told you he was not your father. Since then, continuing to the present day, you have been obsessed with not knowing the identity of your biological father.
12You also experienced deep personal abuse from other sources commencing at a young age, which are more particularly referred to in the report of Mr Jeffrey Cummins.
13At age 19 you sought treatment for anxiety and depression by way of hypnotherapy and anti-depressant medication. Since that time, you have been medicated intermittently on Zoloft. You are currently taking 100 milligrams daily.
14Despite your disadvantages, it is very much to your credit that by your intelligence, commitment and resilience, you have managed to achieve much success in your life.
15After successfully completing Year 12 at school, you achieved tertiary qualifications with a Diploma of Accounting and a subsequent double university degree in Commerce and Computer Science. That was quite an achievement because you obtained the latter degree whilst also working full-time.
16You have been variously employed in financial services with the Melbourne City Council, with Perpetual Trustees and with the accounting firm Barker & Jennings. It was there that you undertook your chartered accountant training and you remained with this firm for about 11 years between the ages of 27 and 38.
17You left Barker & Jennings on good terms and then opened your own accounting business in partnership with Mr Jennings and traded as ABS - Accountable Business Solutions.
18You first married in 1996 at age 26. The marriage lasted four years and there were no children.
19You subsequently married your current partner in 2003. You have two children, a son now aged 13 and a daughter aged 10. In 2005 whilst on maternity leave with your son, you commenced voluntary work for the Wathaurung Aboriginal Corporation. You have explained that it was you who essentially established this corporation to provide employment for your stepfather, your siblings and for other local members of the aboriginal community. The corporation was initially run from your home and in 2009 moved to an office in Sturt Street, Ballarat. Your sister was employed as the Cultural Heritage Manager.
20Your theft from the corporation commenced in around September 2011.
21Your personal circumstances and current psychological condition were assessed by Mr Jeffrey Cummins, consulting clinical and forensic psychologist. In his report dated 15 June 2018, Mr Cummins opined that at the time of the offending and currently, you have had very significant mental health issues. These issues are reflected in the following circumstances:
· You have been intermittently medicated on anti-depressants since the age of 19.
· At age 22, you also received hypnotherapy for up to 8 - 12 months for anxiety and depression. This therapy appears to have been in the context of disclosure to your therapist of your history of childhood experiences referred to earlier.
· You have been suffering from low self-esteem, clinically described as Insecure Attachment, because you have never known your biological father, never had a close relationship with your stepfather and are insecurely attached to your mother.
· This has resulted in your attracting a diagnosis of a complex Post-Traumatic Stress Disorder in the context of a lengthy history of Major Depressive Disorder which is recurrent in type and has at times been moderately severe and other times very severe.
22Mr Cummins summarised the net effect of these various traumatic events as follows:
“… she has invariably sought to please those around her and particularly those who are close to her. In my opinion this aspect of her psychological functioning was a significant motivator for her offending behaviour. Further, some of her offending was motivated by a desire to bolster her self-esteem in a very direct way by using the stolen monies for her own benefit or for the benefit of her children.”
23Mr Cummins expanded on this when giving evidence today. Mr Cummins concluded that at the time of your offending, your perception, judgement and reasoning ability were impaired, although not to the extent that you did not know what you were doing was wrong. Mr Cummins opined that any thoughts you may have had about being justified in using monies of the corporation without permission because of casual, informal or poor recording probably reflected what is called a ‘delusional type’. Whilst not having been assessed as suffering from a Generalised Delusional Disorder, persons who are suffering from depressive and/or post-traumatic stress disorders - as you were - sometimes intermittently engage in what is objectively described as ‘encapsulated delusional thinking’. In Mr Cummins' opinion, your offending was situationally motivated and ‘satisfied’ your clinical need to elevate your self-esteem and therefore avoid being overwhelmed by feelings of identity confusion, depression and worthlessness.
24Many character references were tendered on your plea, both from those who know you professionally and those who know you socially. It is clear from the references that you have been held, and continue to be held, in very high regard for your many great qualities including honesty, trust, your professional work ethic, community spirit, extreme competence, hard work, leadership, friendship and compassion, and also for your deep anguish, shame, regret and remorse for what you have done.
25Your friend of long standing, Ms Dines, also gave first-hand evidence of her observations of the difficulties you had faced within your family when growing up. Your work colleague, Mr Jennings, gave evidence of your exceptional competence at your work, your commitment to work beyond the usual call of duty and what he described as your impeccable honesty and integrity.
26It is clear on the evidence that you have had, and despite your fall continue to have, a very high reputation in the community.
27The offending is of course serious. You were in a position of trust, having set up the organisation and managing high-level donated funds which are provided by grants from Cultural Heritage Management, property developers and local councils. The intended beneficiary is the cultural heritage of the local indigenous people.
28In my view it is, at first sight, incongruous in light of your obvious intelligence and ability that you could possibly believe that because you had played such an instrumental role in the establishment of the corporation, you may not have been charged with theft from the organisation or that you could believe that to some extent you could use the corporation's funds for your own purposes without permission. Your thefts were considered, involved significant sums and extended over a period of years.
29In mitigation I have taken into account the submissions of your counsel, and in particular:
· your cooperation with the police investigation and plea of guilty both for its practical effect and as expression of remorse,
· your stated remorse,
· your maturity and the absence of any prior convictions or post-offence convictions,
· your disadvantaged life and the consequential mental health conditions which have been longstanding and continue,
· your consistent employment record,
· the positive steps you have voluntarily taken towards your rehabilitation by seeking psychological counselling,
· your prospects of rehabilitation which I regard as very high,
· that the funds calculated as stolen have been repaid in full and, because of civil proceedings, to a greater extent than that represented by these charges by approximately $108,000,
· that the repayment of funds resulted in you having to sell your family home,
· the distress to you from the impact your offending has had on your children, particularly your son, and on your relationship with your husband, and
· the respect you feel you have lost in your community and the great shame and embarrassment this has caused.
30I accept that the time that has elapsed since your arrest has caused continual anxiety and uncertainty in your mind concerning your future, and I accept that this uncertainty has impacted upon your life both emotionally and practically with regard to concerns about your future employment, notwithstanding the fact that you have maintained your employment in another capacity but in that same realm of accounting.
31Your counsel has submitted that a community correction order would reflect the appropriate balance in sentencing considerations, relying in particular on your previous good character, the significant delay and your evidence of remorse and rehabilitation.
32The prosecution submitted that a community correction order is inappropriate in light of the significant amount stolen, your high position of trust and the aggravation by the extended period of offending.
33In the course of the defence submission, a range of sentencing remarks from like cases were produced. I have considered these authorities along with other statistics as are available from the Judicial College and the Sentencing Advisory Council. These sources may be considered as a general guide to current sentencing practices. There is a very wide range and the particular circumstances of each case are inadequate for fine analysis. In the end, with regard to context of other cases, each case must depend on its own particular circumstances.
34The basic purpose for which a court may impose a sentence are punishment, deterrence (that is, both specific to you and general -, which means to make an example of you to deter other like-minded offenders), rehabilitation, denunciation by the court and the protection of the community. In sentencing, I have to have regard to a range of matters such as the maximum penalty for the offence, the nature and gravity of the offence, your culpability and degree of responsibility for it, your personal circumstances and those of the victims. Each factor must be balanced in order to impose a sentence that is just in all the circumstances. I am required to balance the interests of the community in denouncing and punishing criminal conduct with the interests of the community in seeking to ensure that as far as possible, offenders are rehabilitated and reintegrated into society.
35I have carefully considered the submissions of your counsel and those of the prosecutor. I accept that your background of a difficult and emotionally harrowing start to life with objective discernible consequences, your vulnerability due to your mental health issues, your otherwise good character, and the application and ability that you have shown to your life of full employment, raising a family, very significant community work and the other matters in mitigation very much reduce the emphasis that would otherwise be appropriate and necessary to place on specific and general deterrence.
36In particular, I accept that the evidence does establish that your aberration from your usual and well-recorded behaviour of honesty and trust has a recognised cause which lies as a very deeply entrenched and longstanding psychological need to belong in the context of feelings of identity confusion, depression and, despite your great objective successes, low self-esteem.
37I accept that the sentence imposed should be significantly moderated to reflect those matters.
38On a technical level, in my view the remarks in the authority of the case of Boulton & Ors v The Queen[1] as to the efficacy and punitive aspects of a community correction order with conditions should be given their full weight. In Boulton, the court remarked as follows:
“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?”
[1] [2014] VSCA 342
39I have considered the option of a sentence to imprisonment alone and also to a sentence tailored to combine some period in custody together with a community correction order. In my view, on balance, given the remarks of the Victorian Court of Appeal in the authority of Boulton and applying the provisions of the governing principles of the Sentencing Act (Vic), I am not satisfied that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order with conditions attached without the necessity for actual confinement.
40Ms Howard, could you now please stand.
41On Charges 1 to 8 of theft, you are ordered, with conviction, to serve a community correction order for a period of three years.
42The community correction order commences today and ends on 24 June 2021. The order that will be prepared - and if you agree to it and sign it - is as follows: it commences today and ends on 24 June 2021. The Corrections centre you will attend is the Bendigo Justice Service Centre at 3 William Vahland Place, Bendigo, and you must attend there within two clear working days after the commencement of the order, that is, by 4 pm on Wednesday 27 June 2018, this coming Wednesday.
43All the mandatory terms of a community correction order apply and the additional conditions I impose are that:
· you perform 250 hours of unpaid community work 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, neuropsychological and psychiatric, if necessary in a hospital or residential facility as directed by the regional manager.
44I will now explain the mandatory terms of the community correction order to you. Throughout the time of the order:
· 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 18 of the Sentencing Regulations 2011, which essentially set out your obligations as to your attendance at the community correction centre - such things as not attending drug or alcohol-affected - you will not have any problem with that, I should think;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre - that is the Bendigo centre - within two clear working days of the order starting, and as I have already indicated that is by this Wednesday, 27 June;
· 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 the community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers - such directions may be given orally or in writing.
45Do you understand and agree to those conditions, Ms Howard?
46OFFENDER: Yes, I do.
47HIS HONOUR: If you get sick or if there are exceptional circumstances, the order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the order. In either case, you must notify the Bendigo Justice Service Centre and I recommend that you obtain legal advice if any of these things happen.
48However 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 then is to cancel the community correction order and resentence you on the original charges, and I may also deal with you in addition for the breach by sending you to prison for up to three months. So do you understand the consequences of breaching your community correction order?
49OFFENDER: Yes.
50HIS HONOUR: I will ask you to sign the community correction order shortly. There is a further matter to which I need attend. You may leave the dock at this stage. I would ask if you could just take a seat at the back of the court.
51At the plea hearing, the Crown sought an order to which you consented for the taking of a forensic sample and 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, the order is by consent and the granting of the order is in the public interest.
52Now I 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 is to be a blood sample and police may use reasonable force to ensure the forensic procedure to be conducted. Do you understand that, Ms Howard?
53All right, if that order could be provided now please to the representatives for Ms Howard.
54MR DUNN: Thank you, Your Honour.
55HIS HONOUR: And if she agrees to it and signs it, I will countersign and that will be it.
56(Community correction order signed and acknowledged.)
57Are there any other matters from counsel?
58MR DUNN: No, Your Honour.
59HIS HONOUR: Thank you, can I just ask the parties to remain after I have left the Bench so that copies of that order can be made.
60MR DUNN: Thank you, Your Honour.
61HIS HONOUR: Thank you both. 10 o'clock tomorrow.
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APPENDIX A: Particulars of Charges
(extracted from the ’Summary Of Prosecution Opening’ tendered as Exhibit A on the plea)
Charge 1
On the 26th of September 2011, HOWARD made an Electronic Transfer for $25,000.00, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal MeBank Account No. 009338705. HOWARD recorded the transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Contract Income Cash Payment Unknown" when in actual fact it was used to pay her Home Loan for 216 Bling Creek Road, Canadian.
Charge 2
On the 8th of February 2012, the Accused made an Electronic Transfer for $100.00, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 direct to Anita COUTTS School of Dance. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Printing and Stationary Cash Payment" The money was used to pay for her Daughters Dance Classes.
Charge 3
On the 17th of February 2012, HOWARD made an Electronic Transfer for $25,000.00, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 direct to Wes Davidson Real Estate. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "St George Hire Purchase Repayments - St George Bank." The finds were used to pay for a Deposit for a property HOWARD purchased in Horsham being Unit 2/3 Burgess Street, Horsham.
On the 18th of February 2012, HOWARD made an Electronic Transfer for $500.00, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 direct to Wes Davidson Real Estate. There was no narration recorded on the Wathaurung Aboriginal Corporation Book-Keeping but is has been established that the funds were used to make a further payment for the property that HOWARD purchased in Horsham.
Charge 4
On the 18th of February 2012, HOWARD made an Electronic Transfer for $11,477.80, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal MeBank Account No. 009338705. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Loan WAC Property Trust - Heinz & Partner." The funds were used to pay the Stamp Duty of the property she purchased in Horsham.
On the 3rd of November 2012, HOWARD made an Electronic Transfer for $1,375.93, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal ANZ Bank Credit Card Account No. 4564-6800-1309- 0047. There was no Narration recorded on the Wathaurung Aboriginal Corporation Book-Keeping.
On the 12th of November 2014 the HOWARD made an Electronic Transfer for $17,300.00, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal MeBank Account No. 024289970. HOWARD recorded the transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Accounts Receivable - Adelaide Brighton Ltd". HOWARD also fraudulently manufactured an Adjustment Note from Adelaide Brighton Ltd regarding this transfer and attached it to the Book-Keeping.
Between the 30th of July 2014 and the 20th of May 2015, HOWARD made 43 Electronic Transfers from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal MeBank Account No.013076167. The 43 Transfers totalled $15,050.00 and were recorded on the Wathaurung Aboriginal Corporation Book- Keeping as "Loan Property Trust - Waduwurrung Property Trust". The funds were used to pay HOWARD’s rent whilst she was residing at 174 Remembrance Drive, Cardigan Village.
On the 23rd of January 2015 HOWARD made an Electronic Transfer for $4,302.95, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal MeBank Account No. 013076167. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Website Logos & Uniforms." It has not been established what the Electronic Transfer was used for.
10.On the 3rd of August 2015, the HOWARD made an Electronic Transfer of $13,556.03, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal ANZ Bank Credit Card Account No. 4564-6800-1309- 0047. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Loan - WAC Property Trust - Cash Payment - New Heater & Air Conditioner In Building (Aquair Pty Ltd)". HOWARD fraudulently manufactured a Tax Invoice from Aquair regarding this Transfer and attached it to the Book-Keeping.
11.On the 30th of November 2015, HOWARD made an Electronic Transfer of $4213.00, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal MeBank Account No. 014289970. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Accounts Receivable - AMJ Costello Pty Ltd". It has not been establish what the funds were used for.
12.On the 28th of December 2015, HOWARD made an Electronic Transfer of $9,532.65, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Personal ANZ Bank Credit Card Account No. 4564-6800-1309- 0047. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Waduwurrung Property Trust - Stamp Duty". Investigators believe HOWARD used this Money to pay off her Credit Card Debt.
Charge 5
13.Between the 23rd of November 2012 and the 29th of November 2012, HOWARD made 6 Electronic Transfers from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 direct to her Mother-In-Law, Cheryl HOWARD’S, National Australia Bank Account. The 6 Transfers totalled $145,000.00 and were recorded on the Wathaurung Aboriginal Corporation Book-Keeping as "Contract Income - Cash Payment - reduce John Holland Cost Due To VicRoads Agreement" and "City Link Bond - Waduwurrung Property Trust". The funds were used for a settlement for a property purchased by HOWARD’s Mother-In-Law. On the 21st of December 2012. Cheryl HOWARD returned the $145,000.00 to HOWARD by Transferring if from her National Australia Bank Account into HOWARD’s Personal MeBank Account No. 009338705. Further, between the 29th of January 2013 and the 4th of February 2013, Transferred $66,925.99 back into the Wathaurung Aboriginal Corporation Bendigo Bank Account No 133930677 but kept the remainder being $78,074.01 and used off her Home Loan.
Charge 6
14.Between the 2nd of March 2015 and the 8th of March 2015, HOWARD made 3 Electronic Transfers from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her son, Isaac HOWARD’s Personal ANZ Bank Account No. 195588915, totalling $40,817.15. The transactions were recorded on the Wathaurung Aboriginal Corporation Book-Keeping as "Grants - Department of Premier and Cabinet" and "Accounts Receivable - City West Water/Biosis Ltd / Adelaide Brighton Ltd".
Charge 7
15.On the 2nd of March 2015, HOWARD made an Electronic Transfer from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 to her Daughter, Keeley HOWARD's, Personal ANZ Bank Account No. 195590273, totalling $1,199.95. This transaction was also recorded as"Grants - Department of Premier and Cabinet" and "Accounts Receivable - City West Water/Biosis Ltd / Adelaide Brighton Ltd".
Charge 8
16.On the 16th of December 2015, HOWARD made an Electronic Transfer of $19,000.00, from the Wathaurung Aboriginal Corporation Bendigo Bank Account No. 133930677 direct to Ballarat Ground Works NAB Account No. 174667585. HOWARD recorded the Transaction in the Wathaurung Aboriginal Corporation Book-Keeping as "Contract Income - Ballarat Ground Works - Reimbursement for Overcharges Western Link Road Project - Government To Pay Back In March 2016". The funds were used to pay for landscaping at HOWARD’s newly purchased property at 27 Evergreen Drive, Alfredton.
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