DPP v Kane

[2017] VCC 1741

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-17-01357

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARNI KANE

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	17 November 2017
DATE OF SENTENCE:	22 November 2017
CASE MAY BE CITED AS:	DPP v Kane
MEDIUM NEUTRAL CITATION:	[2017] VCC 1741

REASONS FOR SENTENCE
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Subject:  Theft x 3
Sentence:  3 year Community Corrections Order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic
For the Accused	Ms H. Cooper

Pages 1 - 6

 

 

HIS HONOUR:

1Marni Kane, you have pleaded guilty to an indictment containing three charges of theft.  The maximum penalty upon conviction for theft is ten years' imprisonment. The offending occurred between June 2015, Charge 1, and
3 May 2016, Charge 3. 

2The circumstances of your offending are contained in an agreed summary of prosecution opening, dated 27 October 2017, which was read in open court by the prosecutor, Ms Malobabic.  It was agreed by your counsel, Ms Cooper, that the agreed summary of prosecution opening dated 27 October 2017 was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  It is not necessary, therefore, that I here set out in detail what is there contained except in an abbreviated way. 

3Your offending occurred when you breached your position of trust as an employee of Metricon Homes Pty Ltd. 

4Charge 1 is a rolled up charge of 11 transactions between 19 June 2015 and 14 September 2015 when you diverted moneys received by customers of your employer into an account controlled by you.  The total of those 11 transactions was $78,282.35. 

5Charge 2 is separate transaction where you diverted money received from a customer again to an account controlled by you.  The amount being $29,363.10. 

6Charge 3 is another charge that occurred on 3 May 2016 when you diverted $71,349 to an account controlled by you. 

7It is self-evident that each of these charges is a serious example of what is a serious offence.  Theft by employees placed in a position of trust by employers is prevalent and has been so for a very long period of time.  It is for that reason that sentences passed by the courts for this kind of offending must properly reflect general deterrence so that other employees placed in the same position get a very clear message that if they succumb to temptation and steal from their employer, they will be dealt with sternly. 

8The sentence must also properly denounce your offending and I must also have regard to your prospects of rehabilitation. 

9To your credit, you pleaded guilty to the charges and you did so at an early time.  Because you have pleaded guilty, you are entitled to reduction in sentence and this will be reflected in the sentence that I will shortly pass.  By your pleas of guilty, you have saved the time and cost of what might have been a reasonably lengthy trial.  All that needs to be taken into account. 

10You committed these offences over a period of some months in the context of an addiction to gambling.  That, to some extent, explains why the offending occurred but it in no way excuses it.  There have been a number of such cases come before the courts and the Court of Appeal in this State has ruled on a number of occasions that gambling addiction may explain an offence but does not excuse it. 

11An offender's moral culpability for this kind of offending is not diminished because of a gambling addiction and nor is the need for the sentence to adequately reflect general deterrence. 

12In your case, you have no prior convictions and, this offending aside, have led an unblemished life.  In my view, there is no need for any sentence to reflect specific deterrence. 

13I turn to some matters personal to you.  You are aged 35 and you were born in Melbourne.  You were aged between 32 and 33 at the time of this offending.  You were born in Altona and raised by both parents.  You have two siblings.  You had a stable upbringing.  You completed Year 12 at school.  You were supported in court by your father who is also present today.  You were apparently diagnosed with depression in Year 10 at school and attended counselling, then facilitated by the Royal Children's Hospital. 

14You married in 2008 and separated seven years later.  You are currently in a relationship which has produced a 16-month-old daughter.  The fact that you have a 16-month-old daughter who, doubtless, needs her mother, is one factor that has weighed heavily on my mind in deciding not to send you to prison. 

15I was told, and accept, that you have had a gambling addiction for some time but you kept it hidden from close family and your partner.  The money that you stole was used to fuel your gambling addiction. 

16After these offences became known, you then acquainted your family and your partner with your gambling problem and you sought assistance from Gambler's Help.  You were referred to a counsellor, Jo Hutton, from whom I received a report, for assistance and you have been attending upon her regularly since shortly after your arrest.  I think you plea of guilty signifies remorse but I accept that you are remorseful and ashamed of your offending. 

17I received into evidence a certificate from Banyule Community Health of your attendance for counselling and, as I say, a report from Ms Hutton, who recommends ongoing treatment and some specialist input for your gambling addiction.  The sentence that I propose of a community corrections order hopefully will assist in getting you the appropriate treatment. 

18I received, into evidence, character references in relation to you, both of which speak highly of you as a person of good character.  I am satisfied that you now have proper insight into your offending.  I think the prospects for your rehabilitation are reasonable.  I doubt that you will offend again in this way, although you should not be put in the position of trust again where you have the opportunity to steal as you have here. 

19On each of the charges I will, with conviction, impose a community corrections order.  The order will be for a period of three years and there is a condition that you undertake 200 hours community work and you engage in programs for treatment and rehabilitation to reduce offending.  You undergo supervision and you undergo judicial monitoring by me every six months, which means that you will have to come back and see me.  If you step out of line, I will re-sentence you; do you understand that, Ms Kane?

20OFFENDER:  Yes, Your Honour.

21HIS HONOUR:  During the course of the plea, the transcript will reflect a great deal of discussion raised by me about repayment.  Whilst I am satisfied that you have made some repayments of moneys stolen by you, I am satisfied that in the context of ongoing offending.  The Crown as sought, and your counsel has agreed, that I make an order for compensation to Metricon Homes Pty Ltd in the sum of $137,312.65.  The amount, in fact, stolen was $178,994.45. 

22The calculation allows for an amount repaid by you of $8004.15 and has been further reduced because an insurance company has chipped in $29,690.30.  For the life of me, I cannot see any logical reason why the insurance company is not being repaid.  However, I act on the application of the OPP.  It seem to me that the correct figure has been overlooked but in view that the parties have agreed, I will sign the order and only on that basis.  Any questions arising out of that?

23MS COOPER:  No, Your Honour.

24HIS HONOUR:  Just come out of the dock, if you would, Ms Kane, and take a seat behind Ms Cooper.  Now, Ms Kane, you need to understand that you must not, whilst on this order, commit any offence punishable by a term of imprisonment.

25OFFENDER:  Yes.

26HIS HONOUR:  If you do so, you could be brought back and I will have to deal with you, re-sentence you; do you understand?

27OFFENDER:  Yes, Your Honour.

28HIS HONOUR:  You must comply with this order in every way and it will be difficult, it will impose on you and it is mean to.

29OFFENDER:  Yep.

30HIS HONOUR:  You have to comply with it; do you understand?

31OFFENDER:  Yes.

32HIS HONOUR:  The first thing you will have to do is to attend at Box Hill Community Correctional Services within 48 hours.

33OFFENDER:  Yep.

34HIS HONOUR:   You will also have to come back here at 9.30 on 27 May next year for the first judicial monitoring.  I will receive a report about how the community corrections order is going and how well your participating in it; do you understand?

35OFFENDER:  Yes, Your Honour.

36HIS HONOUR:  If it is not good, I will take action.

37OFFENDER:  Yep.

38HIS HONOUR:  Very well.  On the rising of the court, you are free to leave.

39MS MALOBABIC:  I am sorry, Your Honour, an application for a DNA sample was made on the plea.  Has Your Honour ruled on that?

40HIS HONOUR:  Has there?  Have you got an order?

41MS MALOBABIC:  Sorry, I do not have copies. 

42HIS HONOUR:  You can do those and I will sign them.  You have seen these, Ms Cooper?  Is it opposed?

43MS COOPER:  Not opposed, Your Honour.

44HIS HONOUR: One matter that I overlooked in my sentencing remarks is that for the purposes of s.6AAA of the Sentencing Act, had you pleaded not guilty to these charges, I would have sentenced you to a term of imprisonment of three years and I would have ordered that you serve a minimum term of two years before being eligible for release on parole.  Now, I have been asked, and I have signed, what is called a forensic sample order.  For the reasons stated in the order, I have signed it.  This requires you to report to Doncaster police station within 28 days to provide the police with a forensic sample, which is a swab taken from your mouth; do you understand?

45OFFENDER:  Yes.

46HIS HONOUR:  Very well. 

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