DPP v Kirakopoulos

[2017] VCC 1297

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00817

DIRECTOR OF PUBLIC PROSECUTIONS

v

ELIZABETH KIRAKOPOULOS

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 September 2017
CASE MAY BE CITED AS:	DPP v Kirakopoulos
MEDIUM NEUTRAL CITATION:	[2017] VCC 1297

REASONS FOR SENTENCE
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Subject:  Criminal law - sentence
Catchwords:  Pleas of guilty to three charges of theft of funds from employer - sophisticated manipulation of accounts over 26 months - total theft $144,434.00 - breach of trust - funds used for arrears of mortgage payments and household expenses - chaotic domestic financial situation - no gambling or substance abuse issues or spending on luxury lifestyle - aged 45, married with four school-age children - psychological distress - agreed CCO within range.
Sentence:  Three year CCO with 100 hours of unpaid community work and appropriate programs.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms V Nguyen	Director of Public Prosecutions
For the Accused	Mr R. Thyssen	Tony Danos, Solicitor

Pages 1 - 8

 

HER HONOUR:

1Elizabeth Kirakopoulos you have pleaded guilty to three charges of theft of funds.  The three charges cover the total of thefts of different amounts occurring over a period of 26 months between October 2013 and December 2015.  Respectively, they were $2,476.18 in 2013, $55,053.32 in 2014 and $86,904.97 in 2015. 

2Theft is a charge which attracts a maximum penalty of ten years' imprisonment but for reasons which I shall explain I shall be sentencing you to undertake the terms and conditions of a community correction order rather than be imprisoned.

3You were first employed by a small family company, The Electric Company, three or four months before you began offending in October 2013.  You worked part time in the accounts section of the company, receiving invoices from clients, establishing online banking accounts for clients and updating and editing the internal accounts system of the company.

4Mr Ray Kimber was the managing director of the company and you would provide him as supervisor with a list of creditors due to be paid.  He would then direct you as to whether to pay them or not.  Once a payment was approved in this manner you would arrange for it to be made through the company's Westpac Corporate online system using previously established templates from the internal accounts system.  The templates contained the bank details of clients of the company and it enabled accounts to be paid without the need to enter or edit banking information.  After you had arranged for the payment to be made you would seek authorisation from the office manager to transfer the relevant funds. 

5On 91 separate occasions you transferred a total of $144,434.47 into your own Westpac bank account, funds to which you were not entitled.  This was a joint account held with your husband but he knew nothing of this as he did not use the account.

6You performed the fraudulent transactions by editing banking information on the templates from the company accounting system changing the bank details for payments to your Westpac account and then submitting the proposed payment to the supervisor for authorisation as I described.  The information supplied to the supervisor did not include the altered banking details.

7While you were away on holidays in early January 2016 a client notified the company that an account was overdue and it was then discovered that payment of that account had been made into your account. 

8An audit followed which revealed 89 fraudulent transactions where company funds had been paid into your account. 

9Your employment was terminated the day you returned from holidays on 11 January and you made admissions to your employer.  A police investigation had commenced in the meantime and a forensic accountant later identified two further fraudulent transactions bringing the total to 91.

10You were arrested on 15 August 2016 and you made full admissions when interviewed by the police. 

11You are a 45 year old married woman, the mother of four children ranging in age from 17 to 11.  All attend local state schools and live with you and your husband.  You completed your secondary education as well as a TAFE course in computer programming.  You worked for some years both before and after your marriage in 1996, and after your first child was born in 2000 you continued working part time until 2006, when you then devoted yourself full time to caring for the children and household.  You returned to the workforce on a part-time basis after about eight  years, first at a medical centre and then with The Electric Company.  You are now again employed at a medical centre. 

12Early in your marriage, you and your husband bought a house in Mill Park but found it a struggle paying the mortgage.  You sold the house and then lived with your father for two years trying to get back on your feet financially.  Then, five years ago, you bought a house in Mernda financed through a broker, rather than a bank, as your credit rating was poor owing to what appears to have been a long-standing debt to Telstra.  The mortgage was subject to a very high interest rate of 13 per cent and with other commitments such as car payments and the debt remaining after the failure of a small business, you continued to struggle with payments.

13Neither you nor your husband gamble, drink alcohol or use illicit drugs and the bank records do not disclose any evidence of an expensive lifestyle.  Certain large deposits and withdrawals such as those of mid-June 2015 have been explained by the need to settle mortgage arrears.  Otherwise, the money that was obtained fraudulently was spent on daily living expenses including food and petrol. 

14At that time you were earning about $550 or $650 a week and your husband was earning around $750 a week but that has now risen to $950.  You also received some family allowance payments.  Your outgoings were almost equal to this combined income and that remains the case now.

15When the finance company threatened foreclosure on the house you appealed to family members who came to your assistance and your current plan is to try and refinance the mortgage.

16Against the background of what your counsel described as financial chaos, other family stressors have included the death of your mother several years ago and your father's increasing neediness, as well as your eldest daughter's hole in the heart condition which requires monitoring, and her persistent body rash which is currently being treated.

17As far as your own physical health is concerned, you are due to have an MRI performed to investigate an ischemic condition and you have several indicators of conditions which are not uncommon nor life-threatening but which do require monitoring.  The theft of a large amount of money, as in this case, warrants a penalty which reflects that seriousness as well as the fact that you stole from your employer and thereby breached the trust that was placed in you.  Mr Kimber said as much in his victim impact statement which was read to the court at the plea hearing. 

18Indeed, he had trusted you as a friend as well and you exploited that trust.  You heard that he has had to implement stricter guidelines to be followed in the company and this has had a deleterious effect on workplace relations. He has also suffered from the stress caused by the thefts, particularly in having to account to others as to what happened. 

19Through your counsel you have expressed your regret at your offending.  You have explained it only in terms of being desperate, in the context of having no money for food or for petrol to get home from work, although you said you knew this was no excuse. 

20You have no prior convictions.  You have worked in the paid workforce for most of your adult life on a part-time basis in more recent years and it would seem that you have some talent to contribute. 

21It is conceded by the prosecution that a community correction order is within range in this case; meaning that it is an appropriate penalty taking into account all the circumstances of the case, with the qualifying submission that I should nonetheless give serious consideration to combining a community correction order with a terms of imprisonment. 

22Prison is no place for a hard working person such as yourself who has hitherto committed no crimes and who is unlikely to do so again.  It is a disposition which should only be imposed if there is no other means of meeting the various sentencing requirements that apply to the facts of the case and the personal circumstances of the offender. 

23General deterrence does require that the sentence I impose be adequate for that purpose, but the punitive aspects of a community correction order can be sufficient in the appropriate case.  There is a reduced need for specific deterrence, given your circumstances, and the feelings of shame and guilt that you have expressed.  As you know, you have been assessed as suitable for a community correction order which I shall impose.

24The report from the corrections officer who assessed you last week suggests practical, and probably effective ways of addressing the cause of your offending.  Your counsel referred to the several consultations you have had with a psychologist and that has been confirmed by a report describing emotional distress and anxiety with feelings of desperation at your situation.

25A community correction order will enable such counselling to be monitored and it is possible that funding will be made available for financial counselling as well. 

26You told the corrections officer that you were badly depressed at the time of the offending.  If that is addressed as well as the financial dysfunction of the household, your prospects for rehabilitation will be good and that is an important matter to be taken into account in sentencing you.

27There will also be a punitive aspect of the order and I will explain that now.  Will you stand now please, Ms Kirakopoulos?

28The community correction order will begin today and will last for three years.  You must perform 100 hours of unpaid community work over 12 months and you must take part in the programs I have mentioned and, indeed, in any program to which you are directed. 

29If you breach the order either by further offending or by non-compliance, you will be charged with that offence and if it is proved, you will be re-sentenced for these matters. 

30Now, the appropriate corrections office is at 4A, No.545 McDonalds Road, South Morang and you must go there no later than four o'clock this Thursday, 14 September.

31Now, there are some ancillary matters so just take a seat for a moment please, Ms Kirakopoulos.  Was there an application for a forensic sample, Ms Nguyen?

32MS NGUYEN:  Yes, there was, Your Honour.  A forensic sample order and then there were two compensation orders.

33HER HONOUR:  Yes, I have the, I have the compensation orders.  Can you tell me what police station would be applicable for the forensic sample?  Do you know Mr Thyssen?  South Morang, is there one there?

34MR THYSSEN:  I am not sure of South Morang.  I will just ask - maybe I will approach the informant.

35HER HONOUR:  Would you mind?  Thank you.

36MR THYSSEN:  Mill Park, Your Honour.

37HER HONOUR:  Thank you, and is that by consent, Mr Thyssen?

38MR THYSSEN:  Yes, Your Honour.

39HER HONOUR: I will make the order, Ms Kirakopoulos, I will make an order for a forensic sample of saliva to be obtained. That is under s.464ZF of the Crimes Act. It means that the police do have the power to use reasonable force to obtain that sample if necessary but I trust that won't be the case and I will sign that order shortly. There are also two orders for compensation. I just wanted to raise that with you too, Ms Nguyen. There is one to Chubb - the insurance company, Chubb Insurance.

40MS NGUYEN:  That is correct, Chubb Insurance Company and
one - - -

41HER HONOUR:  And that is for $143,000 which is around about $1,000 less than the amount stolen.  The other order is to the victim company, Electric Factory Pty Ltd for $5,000.

42MS NGUYEN:  Correct.

43HER HONOUR:  I am just wondering how those figures stack up because ‑ ‑ ‑

44MS NGUYEN:  The $5,000 Your Honour - my understanding is that that is the amount that was paid in terms of an excess for the insurance policy. 

45HER HONOUR:  I see. So that is why it is - the total is around about $148,000 instead of $144,000.

46MS NGUYEN:  That is correct.

47HER HONOUR:  All right.  You are aware of that, Mr Thyssen.

48MR THYSSEN:  Yes, I am, Your Honour. 

49HER HONOUR:  In that case, I make both those orders and I will just read them out for the purposes of the transcript so it is perfectly clear.  The first one is to Chubb Insurance Australia Ltd for $143,196.38 and the other is for payment to the Electric Factory Pty Ltd in the sum of $5,000. 

50Now, my associate will prepare the s.464ZF order and I will sign that in chambers and it will be available to you very shortly and the corrections order is available. Do you want to look at that Mr Thysssen?

51MR THYSSEN:  Yes, Your Honour.

52HER HONOUR:  Are there any other matters?

53COUNSEL:  No, Your Honour.

54HER HONOUR:  Thank you. 

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