DPP v Moeller

[2018] VCC 248

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
(Not) Restricted
Suitable for Publication

Case No. CR-17-02026

DIRECTOR OF PUBLIC PROSECUTIONS

v

RITA MOELLER

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JUDGE:	HER HONOUR JUDGE DAVIS
WHERE HELD:	Melbourne
DATE OF HEARING:	5 March 2018
DATE OF SENTENCE:	9 March 2018
CASE MAY BE CITED AS:	DPP v Moeller
MEDIUM NEUTRAL CITATION:	[2018] VCC 248

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:   Plea of Guilty - Theft
Legislation Cited:  Sentencing Act 1991 (Vic), Crimes Act 1958 (Vic)
Sentence:  Community Corrections Order for a period of 2 years.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Ms K. Hamill	Office of Public Prosecutions
For the Accused	Mr P. Tiwana	James Dowsley & Associates

HER HONOUR:

1       

Rita Moeller, you have pleaded guilty to 4 rolled up counts of theft. The maximum penalty for theft is 10 years’ imprisonment. Your offending occurred during the course of your employment between 27 September 2013 and

15 November 2016 as a payroll and administrative officer at a private hospital. You were responsible for depositing cash payments made by patients and reconciling those deposits in the hospital’s accounting systems. Over the offending period, on 108 separate occasions (at least monthly, and sometimes on several occasions during the same week) you stole cash totalling $117,244.

2       The circumstances of your offending are set out in the Prosecution Opening on the Plea[1] to which no exception was taken by your counsel and I sentence you on the basis of the facts set out in that document. Your offending conduct may be briefly summarised.

[1] Exhibit 1

3       Your offending began 4 months after a restructure of the finance department. In that restructure, the previous internal control process whereby daily banking was checked by two staff, ceased. Under the new system, you and another employee each did the banking alone on different days of the week, but you alone were responsible for reconciliation of all of the daily banking summary forms to the bank statements, and for identifying any cash discrepancies. In late 2016, your business manager discovered a $40,000 discrepancy in the hospital’s debtor reconciliation for the previous financial year. She discussed her concerns with you and your colleague who did the daily banking. She arranged for consultants to come to the hospital to check the software in September 2016. She asked you to reconcile the receipts. You told her that there were no discrepancies, and she accepted this. She arranged for further investigations to be undertaken, and told you that from October 2016, reconciliation back to the general ledger was to occur each month. Your last theft of cash occurred the following month.

4       In early 2017, when the consultants reported their inability to explain the discrepancies back to your manager, she arranged for the computer software to be checked. When that software was confirmed to be operating appropriately, she obtained approval to engage an auditor, and, while preparing the documentation, found discrepancies in the receipts reconciliation prepared by you in 2016. She asked you about this and you made no admissions, but left your employment straight after this conversation and did not return.

5       A few days later, you notified your business manager that you were resigning due to personal issues, and provided a letter of resignation on 5 March 2017. However, you continued working part-time in patient services at another hospital.

6       On 11 April 2017, after a chartered accountant had completed an audit and identified the extent of the cash discrepancies, the offending was reported to police. You attended the police station the following day by appointment and gave a no comment record of interview.

7       The business manager made a Victim Impact Statement[2] which was read out in court. In that statement, she details how much she trusted you and how betrayed she felt by your actions, particularly since she had confided in you how stressed she was by the discrepancies in the accounts and you had comforted her about it. She stated that the discrepancies made her feel vulnerable and embarrassed, and made her question her own ability as an accountant. In addition, your abandonment of your employment left her with two roles to fill and she had to work most Saturdays for two months to cover the workload.  She now finds it very difficult to trust people and this has affected her relationship with her staff.

[2] Exhibit 2

8       Your counsel acknowledged that your offending over a period of three years constitutes a serious breach of the trust placed in you by your employers to bank the cash paid by patients at the hospital.  At the time of the thefts, you were under financial pressure as you were building two units and had mortgage and credit card commitments.  The money stolen was used to pay day to day expenses, including buying things for your daughter, financing her school trip to Europe and contributing to a deposit for your son’s first car. Fortunately, in this case, your offending did not financially ruin the hospital.

9       You are now 50 years of age and have no prior convictions, no subsequent convictions and no pending matters. You have had a very difficult background. You lost a sister, then aged 6, in a traffic accident. Your parents separated when you were 12 years old and you lived with your father. When you were 13 years old your mother took you out of school to live in Greece and it was only 6 months later that your father brought you home. By then you had developed bulimia.

10      You left school after Year 9. You also left home, and lived with friends, supporting yourself by working. You married overseas in 1993 and had a son. The marriage failed and you returned to Melbourne the following year, working in a restaurant and then as an accounts clerk. You met your second husband in 1995 and lived with him for a number of years. Your daughter was born in 1999 and you married in 2003. Your brother, with whom you were very close, committed suicide at the age of 39 in 2005, as a result of which you began drinking a lot more and your mother developed serious mental health issues. You had a strained relationship with her due to her behaviour. Your father came to live with you in 2008 after being diagnosed with lung cancer. He died in July 2010. Your mother was hospitalised for 6 months in 2013 in a psychiatric ward interstate and was diagnosed with Parkinson’s disease, and in 2016 you brought her back to Melbourne to live in a nursing home. She contracted cancer of the liver in late 2016 and died in May 2017. By that time, you had reconciled.

11      You have been in consistent employment since leaving school, apart from a period of 4 years when you were caring for your young children. You have worked in restaurants, cafes and shops, as a receptionist, administrative clerk, accounts clerk and, since mid-2017, have been working full time at a private hospital (which is aware of your offending) as a patient services clerk, greeting and admitting patients, and taking payments.  You are not involved in banking any money. You have also been volunteering 4 hours per week driving a food van for a charity. You are responsible for paying the mortgage on your unit, and are paying off credit card debts.

12      Your treating psychologist, Barbara Lach, whom you have been seeing since mid-November 2017, provided a report dated 7 February 2018 in which she noted that you have been haunted by your difficult relationship with your mother, that you used and abused alcohol to cope with the pressures of single motherhood, and that your offending occurred in the context of financial pressures flowing from your decision to build two townhouses. You told her that you hated yourself for stealing from your employers but were living beyond your means and did not want your daughter to miss out on anything.

13      

Ms Lach performed psychometric testing which indicated markedly elevated scores on the depression scale, and were also suggestive of alcohol dependence and borderline personality issues. Clinically, your symptoms were consistent with a diagnosis of Major Depressive Disorder and Borderline Personality traits. She considered that you had been experiencing these difficulties for most of your life and that, while you knew what you were doing was wrong, you were unable to resist your “pathological need to please and avoid abandonment”, and your “judgment was significantly compromised”.[3]

Ms Lach stated that you have taken full responsibility for your actions, have engaged very well with psychotherapy, and appear to be determined to take control over your life.

[3] Exhibit A, 5

14      Character references were provided by your sister, each of your children, two of your closest friends (one of whom was one of your employers) and the coordinator of your soup van charity team.[4] Each of them noted that you fully disclosed your offending to them, expressed great remorse for it, have engaged with psychological treatment, and have been working extremely hard to address your personal issues. Your daughter noted the need for you to address your  alcohol dependency problem. You were supported in court by your sister and two of your friends.

[4] Exhibit B

15      

In relation to remorse, your counsel referred to the fact that on 15 July 2017 you sent an email to your employers apologising for your offending, indicating that you would be pleading guilty and that you would repay all the money taken once the sale of your unit was completed.[5] You have told your family and friends of your offending. In addition, you pleaded guilty at the committal mention stage of proceedings. On 26 February 2018 you made full restitution to your former employer. You have also relinquished your rights to over $10,000 worth of entitlements. You expressed remorse to your treating psychologist, Barbara Lach. You also expressed sincere remorse in a letter to the Court dated

24 February 2018[6] which was tendered on the plea.

[5] Exhibit C

[6] Exhibit D

16      You have also consented to the order sought by the prosecution for the taking of a forensic sample.

17      Your counsel did not rely on Verdins' principles but submitted that your difficult background, family issues and financial pressures, and your psychological reaction to them, help explain your offending. He submitted that in the light of your early plea of guilty, remorse, and full repayment of the money stolen, a Community Corrections Order with appropriate conditions (those of supervision, unpaid community work, treatment for mental health and treatment for alcohol dependency) could satisfy all of the relevant sentencing considerations, including that of general deterrence. In particular, it was noted that such an order will allow you to maintain your employment.

18      Counsel for the prosecution submitted that the paramount sentencing consideration in this instance is that of general deterrence and that offending of this kind is commonly taken by persons without prior convictions, and that in this case the appropriate disposition is one of a combined sentence including a short term of imprisonment as well as a Community Corrections Order.

19      I requested an assessment for suitability for a Community Corrections Order and received a report dated 6 March 2018 indicating that you are suitable for such an order. The conditions recommended were those of supervision, community work, and treatment and rehabilitation in relation to mental health and alcohol.

20      The purposes of sentencing include denunciation, just punishment, specific and general deterrence, protection of the community and rehabilitation. In sentencing, regard must be had to factors including the seriousness of the offending, your culpability for it, your personal circumstances (and those of the victim, if any). I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society.

21      In cases involving offending such as that committed by you, specific and general deterrence are important considerations. Your offending involves a serious breach of trust, over a considerable period, involving 108 separate transactions and a substantial amount of money. The offending was regular and opportunistic but otherwise relatively unsophisticated. Your moral culpability for the offending is quite high.

22      On the other hand, I have taken into account your difficult personal, financial and emotional circumstances at the time of the offending. I must give appropriate weight to your early and consistent expressions of remorse, to your early plea of guilty, and particularly to the fact that you have made full restitution and in addition foregone access to your entitlements from your employer. Your plea of guilty at the earliest opportunity has saved the witnesses and the State the expense and inconvenience associated with a committal and trial. Your acknowledgement of your conduct and expressions of remorse have been fulsome and been made to your employer, your business manager, your family and your friends, your psychologist and to the Court. The most telling expression of your remorse is, of course, the making of full restitution. I consider that in the light of Ms Lach’s report and your character references that you have excellent prospects of rehabilitation and are at low risk of reoffending.

23      In all the circumstances, I consider that a lengthy Community Corrections Order with appropriate conditions is capable of satisfying the requirements of proportionality, parsimony and just punishment, specific and general deterrence, while affording you the best prospects of rehabilitation. I propose to sentence you to a two year community corrections order, with conditions including supervision, mental health and alcohol assessment and treatment, and 150 hours of unpaid community work. 

24      Would you please stand, Ms Moeller. On Charges 1-4 you are convicted and placed on a Community Corrections Order for a period of two years.

25      In relation to the Community Corrections Order, you will be subject to supervision and are required to complete 150 hours of unpaid community work, as well as mental health assessment and treatment, and assessment and treatment in relation to your alcohol dependency. I direct that up to 50 hours of your participation in counselling may be credited towards or as hours of unpaid community work.

26      In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Corrections Orders.  These are: that you must not commit any other offences during the period of the order being enforced - that is, two years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer.  You must report to the Community Corrections Centre at Moorabbin within two clear working days, which will be 14 March 2018. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from and directions of Community Corrections officers.  Do you understand all the conditions I have imposed and the general terms that apply?

27      OFFENDER:  Yes, I do, Your Honour.

28      HER HONOUR:  Before you consent to the making of such an order, you must understand that contravening any condition attached to the Community Corrections Order, except for a contravention of a direction of the Secretary, is itself an offence punishable by three months’ imprisonment.  Contravention of a Community Corrections Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the community corrections order?

29      OFFENDER:  Yes I do, Your Honour.

30 HER HONOUR: All right, thank you. I indicate pursuant to s.6AAA of the Sentencing Act[7] that but for your plea of guilty, I would have sentenced you to a period of 12 months’ imprisonment.

[7]1991 (Vic)

31 As I mentioned earlier, the prosecution has also sought an order pursuant to s.464ZF of the Crimes Act[8] in relation to the taking of a forensic sample, and you have consented to that order through your counsel. I will make that order because you have consented to it and because having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.

[8]1958 (Vic)

32      In making this order, I need to inform you, Ms Moeller, that I am signing this order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for the placement on the database. I advise you that if at the time of the request for such a sample is made, 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 the police may use reasonable force to enable that forensic procedure to be conducted.  Do you understand?

33      OFFENDER:  I understand, Your Honour.

34      HER HONOUR:  Thank you. 

35      Alright, I'll just sign these orders.  So in this case it's the ones requiring Ms Moeller to report to the Mordialloc police station?

36      MS HAMILL:  Yes. And that was based on discussion with defence, Your Honour.

37      HER HONOUR:  All right, thank you.  Let me just sign those.  Thank you.

38      MR TIWANA:  Thank you, Your Honour.

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