DPP v Naughten
[2018] VCC 1758
•26 October 2018
m
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 17-02200
Indictment H11917114
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DEBBIE NAUGHTEN |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 25 October 2018 | |
DATE OF SENTENCE: | 26 October 2018 | |
CASE MAY BE CITED AS: | DPP v NAUGHTEN | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1758 | |
REASONS FOR SENTENCE
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Theft x 2. Rolled up offending over 5 months; Breach of trust; No prior court history, 58 years old; approx. $450,000.
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APPEARANCES: | Counsel | Solicitors |
| Department of Public Prosecutions | Ms Upton | Office of Public Prosecutions |
| For the Accused | Mr R. De Kretser | James Dowsley and Associates |
HIS HONOUR:
1 Debbie Naughten, yesterday, you pleaded guilty to two charges of theft. They are both between dates rolled up charges. Charge 1 relates to the 47 transactions set out in schedule A on the indictment, where you took $44,600, that was cash from cash registers between 11 July 2016 and 15 November 2016. Charge two relates to the taking of cash from registers occurring between 16 June and 3 July 2016, this time netting a touch over $407,000. The 3rd of July is specified as that was the date you entered false data into the cash management system. You were born on 7 July 1960, You were therefore 55 to 56 years of age at the time, and you are now 58 years old. You have no criminal history and nothing occurring since. The maximum penalty for the charge of theft is ten years' imprisonment.
Facts
2 The prosecutor Ms Upton opened this matter to me yesterday and that was in accordance with a written prosecution opening that was dated 2 February 2018. That document was marked as Exhibit A on the plea, it was read aloud in the course of the proceedings yesterday and your counsel told me that it was an agreed summary. Your counsel did take me to some additional answers in your first police interview. I had in fact read all of the depositional materials including the two police interviews.
3 Given the agreed factual setting, I see no need to descend to the full factual setting in these my sentencing reasons, as I am not going to stray beyond the agreed summary. I still should say something about your offending.
4
Very briefly, as to the facts, you were working in a position of trust at the Coles Lalor store. You were not the store manager, but were described a “team member in charge” and as such, you obviously had some heightened responsibilities. You had access, for instance, to the cash management computerised system and obligations in relation to entry of details onto that system. You removed cash from the register and manipulated the cash management system of your employer. You entered the clearances into the cash management system and that was to convey the impression that the money had been collected by Armaguard. That accounts for the 47 transactions set out in Schedule A to the indictment. The much larger sum involved the similar process, but in a much tighter timeframe. The taking of those sums from cash registers in the between dates period and your three debit entries on
3 July, signing off the amounts as essentially having been collected by Armaguard. That was done a day or two before a new system was coming online and no doubt you hoped that the new system would deflect any enquiry into your conduct as it carried across a zero outstanding balance.
5
In any event, as we know, some of the losses were detected by Coles. An investigation was commenced and it was discovered that Armaguard had never made the collections. A far more detailed review was conducted and that identified the loss of $452,000, with concealment by what appeared to be deliberate manipulation of the cash system. Closer examination showed that you were rostered on as a team leader in charge on every date that cash went missing, with manipulations of the system carried out using your log on entry. It took real effort though to untangle the transactions and to obtain a true picture. Private investigators were engaged and observed you on 11 November 2016 take some cash from a till. You went to the cash room and left a short time later and a short time later still, you were then observed playing the poker machines at the Plough Hotel in Mill Park. That same sequence was observed on two other days. On 15 November, again you were seen to take some cash from one of the registers. You were arrested out in the car park on that occasion and the cash was actually found up your sleeve, with the relevant cash clearance receipt also up your sleeve. It was $900. Other similar receipts were found in the car that was parked nearby. You were interviewed about that particular transaction and it is true, you made some admissions. It was though a pretty odd interview, odd for the lack of detail from you, or any real explanation at all. You certainly made no admissions to any greater theft, but you did concede that your conduct was a disgrace. Well it was, but as you knew it, it was a tiny proportion of the true disgrace. You were released uncharged. You were later interviewed on 7 July the following year and really you did yourself no favours in the course of that interview. You told a number of lies. You denied any other offending and denied point blank any role in the larger or other thefts. You were charged on summons. The matter resolved at a committal mention on
30 October 2017, and you were committed to a plea date in March 2018. That was adjourned on your application to August of this year. On that next date, again your application to adjourn succeeded. That is, applications brought by representatives appearing on your behalf. On each occasion the adjournment was sought to obtain expert materials.
6 It follows then that across the two charges to which you have pleaded guilty, your offending spanned the period from 16 June to 15 November 2016. So it is a period of five months. You stopped because you were caught on 15 November.
7 Enough then of my brief summary of the agreed facts. As I say, that is all it is. Exhibit A sets out the more complete factual setting.
Impact
8 There are no victim impact statements here. Your victim of course is a large corporate entity. That is not in any way mitigatory. The case lacks the aggravating feature which sometimes exists with thefts of this magnitude, often enough bringing a business to the brink of collapse. That is not the position here obviously. Your counsel suggests in fact that the size of the business may have been used to rationalise your conduct. Well maybe that is so, who knows, but again, that is not mitigatory either. It is certainly not a victimless crime. Impact is conceded in the written submissions as well as the oral submissions. We all pay for this sort of theft. There is the loss of $450,000 or thereabouts, with little hope of full recovery of that sum.
Mitigation
9 Your counsel raised a number of matters in mitigation in an excellent plea conducted on your behalf. He spoke to a written outline that was marked as Exhibit 1, relying chiefly upon:
· Your early guilty plea;
· The presence of remorse;
· Your past good character;
· The aspect of delay at play here;
· Your good if not very good prospects of rehabilitation;
· The presence of family support, including the reference from your daughter Gabrielle, as well as the one from your younger daughter Maddison;
· Mr de Kretser, your counsel, took me to your personal background in some detail;
· He relied upon reports from two psychologists, Mr Staios, and Ms Dixon, as well as a report from a psychiatrist Dr Turnbull and he submitted that two propositions from a case of Verdins which you heard discussed had some application here;
· He made submissions as to nature of the offending and the possible underlying causes of the offending, as spoken of in the expert materials and confirmed in instructions from you;
· He suggested that there may be some very small reduction in your moral culpability here owing to the gambling addiction and that this case could be contrasted with someone living the high life.
10 He conceded though that this was serious offending involving a number of transactions over a period of time, each involving a breach of trust. He conceded that a prison term was inevitable, but argued that a combination type order would be open with your release onto a community corrections order in due course.
Prosecution
11
The prosecutor who appeared yesterday on the plea, Ms Upton, challenged the application of the fifth and sixth principles from that case of Verdins and argued there was no adequate evidentiary foundation to enliven those two matters.
On behalf of the Director of Public Prosecutions, Ms Upton called for an immediate term of imprisonment and submitted that a combination type disposition was not in the circumstances open here, owing to the gravity of the offending and the need to pay adequate weight to the various relevant purposes of sentencing.
Guilty plea
12 Let me turn then to consider the various submissions made by your counsel yesterday in his able plea. Firstly your guilty plea.
13 You have pleaded guilty and you have done so at what I will treat as the earliest stage in the proceedings. That is, as your counsel suggests, a significant mitigatory matter. There is a sizeable utilitarian benefit that must apply to an early guilty plea such as yours. You have taken early responsibility for your offending. Witnesses have been spared the experience of coming to court to give evidence. The community has been saved the time, the expense and the effort associated with the conduct of a committal hearing in the Magistrates' Court and a trial of some complexity and length in this court. You have facilitated the course of justice and the court must reward you for your decision to plead guilty and at the early stage which you did. I take the guilty plea into account in the manner envisaged by your counsel on page 3 and 4 of his written submissions and as you will see, I will treat it also as evidencing some remorse in this case.
Remorse
14 I turn now to that issue of remorse. There is virtually none as of the date of the second interview with the police. That much is plain. It is a bit of a worry that you tried to bluster your way through as you did on that occasion. That second interview, as I have said, was in July of 2017, so well after you had been sacked. The case was an overwhelming one, and yet even as the overwhelming nature of it was put to you in the course of the interview, including photographs being shown, you tried to avoid liability altogether. You told a number of lies which I hasten to add is not a matter of aggravation at all. It is hard to think of the position you found yourself in. You probably panicked when confronted with the evidence and it is to your credit that you have relented and pleaded guilty and at the earliest stage.
15
A guilty plea is usually evidence of at least some remorse. Here, I have also the views expressed by the experts who have had reports placed before me, though it seems clear they did not have your second police interview.
Mr De Kretser told me as much. They really should have received your interview accounts to give a more informed opinion as to the concept of remorse or contrition in this case. I do not know why they were not. I also though, have your daughter Gabrielle’s sad letter, as well as your younger daughter Maddison’s letter and I take those matters into account.
16 I sense there is a fair bit of self-pity at play here from you, but one can hardly blame you for having that feeling. But I am satisfied also there is no doubt a sense of shame for the exposure and I have no doubt that you feel deep remorse for the predicament falling upon your family. As to the actual remorse for the crime that you committed upon Coles, that is perhaps a little less evident, but I am prepared to find the presence of some remorse here. I am sure there is a swirling of emotions as you sit in the dock, both yesterday and today and I am confident that one of those emotions is a feeling of regret for committing these crimes against your employer. So I take that remorse into account in mitigation.
Background
17 I have not really spoken of your background in any detail at all and I turn now to your background. A written outline has been provided in this case, you will not have seen it, but it is very detailed. It goes into significant detail as to your personal and family background. So too do some of the reports that I have read. I am not going to set it all out in such detail, as I have no reason not to accept the family and personal background placed before me.
18 You are 58 years of age. Very briefly, you were brought up in Heidelberg and then Bundoora. You are one of three children as I understand it. You are the eldest. Your parents remained together. Your father is now dead, but your mother is elderly and she lives up in Queensland. You were educated to Year 11. You then went into a long term job at a credit union which was taken over by a bank, being the Bank of Melbourne. What is significant is that you were employed there for 19 years with no mishaps and it would seem the ability to use your position of trust at that institution, to act dishonestly had you chosen to and you did not. I was told that you worked at Coles for close to 13 years, with the last 11 years at the Lalor store. That employment was of course terminated on 17 November 2016, a couple of days after the discovery of the $900 up your sleeve on 15 November. You have not worked since.
19 You are a married woman with a husband of 35 years who is self-employed. There is no question that these offences and the court sequel, they have placed great strain on you both, but he is still supportive and of course that is a positive. You have one child of that relationship, that is Maddison who is now 22 years of age and she has written a letter which as I have said, I take into account. You adopted your niece Gabrielle when she was about six months of age and her parents were not in a fit state or able to provide for her.
20 She also has written a letter. It is a sad and forlorn letter, but one that I take into account. This offending has been devastating for all those who surround you and support you. Gabrielle is a parole officer. She has got two children, one of them born quite recently I think. You are the only mother she has known and she regards her success in life as owing to your, and presumably your husband’s generosity, in just stepping up to the plate when assistance was needed, doing what was needed, when it was needed, with no questions asked. Plainly you are loved, plainly you are supported and that is as it should be, irrespective of your crimes. She, Gabrielle, speaks of your shame and your regret. Your family are clearly very supportive of you and that support will continue. They were all in court yesterday and they are here again today. I mean they are shocked and they are upset and they are grappling still with what you have done. It is so foreign to the person that they know and so out of character.
21 It is obvious enough that you had more than some mild interest in attending at the pokies. You were followed there by investigators on a handful of occasions in thevery timeframe and there were statements taken from those at the hotel speaking of the frequency of your attendance over the years.
22
I have the magnitude of your offending. I have the breach of trust at play here. I accept the submissions as to the out of character nature of the offending, when measured against your past good conduct. However, this was not some isolated behaviour occurring on a single occasion. There were many acts over some months. What have you done with all of that money? I was told that it all went into the machines. It is a bit hard to fathom. You were arrested on
15 November 2016, only a handful of months after taking over $400,000 cash in the period from 16 June to 3 July. I have some difficulty accepting that all of that money could have been gambled away, but ultimately, it makes not one jot of difference in the sentence that I impose. The money is gone. You stole it and certainly there are no signs of wealth or enrichment and no suggestion that you were leading any sort of extravagant lifestyle. So it seems likely that the lion's share if not, all of it has been fizzled away into the machines.
Rehabilitation
23 What are your future prospects then of rehabilitation? It is always a bit hard sitting up here to assess a person’s future prospects. It is never easy. I cannot ignore the positive material placed before me. Nor the fact of your appearing for the first time before a court aged 58. You now call in aid your past good conduct. I have the three expert reports and the letters of your daughters Gabrielle and Maddison. You have the strong family support I have detailed which of course is a plus. You had it as you went about the commission of these offences. Perhaps you just lost sight of that. That is what makes it so puzzling that you are siting where you are sitting here today. No doubt had people who knew you well been asked prior to any offending as to your prospects of committing this style of offence, they would have said there was no possibility ever of you acting in such a way and yet you did.
24 As your counsel opened the plea yesterday, he detailed what you had built up over your life and all that you had lost owing to this offending. That is, exposure as a thief. You have been sacked. You have lost your reputation he said and have a sense of undoing much of the good in your life. Your self-esteem which seems from the reports has never been particularly high, has sunk to a new low. You found it difficult to leave the home and have been self-conscious, lest you be seen by someone who knows of this unhappy affair. It would be amazing if the process of being confronted and then arrested by the police, caught red handed on 15 November, sacked, charged and then brought before this court has not had an impact upon you. Of course it has. It is obvious that it has deeply affected you and your family. How could it not? Much of the depression and anxiety spoken of in the reports seems to relate to the reaction to these events, that is, the discovery of the offending, the laying of charges and awaiting finalisation of the court case.
25 Serving the sentence which I will be obliged to pass will also have a sizeable impact upon you. All of these things surely will go some sizeable way to deterring you from committing crimes such as these into the future.
26 You may still attempt to enter the workforce upon your release. I do not know one way or the other whether you will. It is unlikely that you would ever find yourself in a position of trust ever again, at least if you deal honestly with prospective employers in any future job applications, but who knows how that will pan out? The risk of future offending is always difficult to quantify. A fair reading of the expert material would suggest that they believe the risk is low. Now that is the conclusion I would reach independent of that material in any event. You are remorseful to a degree, you pleaded guilty at the earliest opportunity. I believe you are unlikely to commit this style of serious offending in the future.
27 You plainly should never be placed in any position of trust ever again, at least in relation to money. It is hard not to be a little bit guarded given the scale of these crimes and the fact of them occurring over some months in breach of trust. However, in all the circumstances, these acts as serious as they no doubt are, they do not just cancel out the decades of excellent behaviour and effort and contribution that is spoken of in the materials. They do not undo all your good deeds even if you think they do.
28 You are more than just the person who has committed these crimes. You are the person who has led the otherwise blameless life, who has been the doting wife, who has been the wonderful mother, who has been the kind hearted and generous person spoken of in the two letters from your children, who has been the excellent worker. So that past good character is now relied upon in mitigation. It seems to me you are a very decent bet for the future. I am prepared to assess your prospects of rehabilitation as being good.
Psychologist and psychiatrist’s report
29 I have mentioned the psychologist's reports from Mr Staios and Ms Dixon and the psychiatrists’ report from Dr Turnbull. These sentencing remarks have been long enough. I am not going to set out slabs of those reports. It would appear that you, like so many others, had a gambling addiction. I act on that opinion. I also accept the opinion as to the major depressive disorder spoken of in those reports.
30 You certainly were spending some time playing the pokies. There is no doubt about that and as I have said, no doubt the lion’s share, if not all of the stolen funds was lost to gambling. At one point your counsel spoke of your being intoxicated by the addiction and acting in that state. Well it was a turn of phrase. The fact is though you were not intoxicated at all. An intoxicated person may genuinely not know what he or she is doing, or have but a scant sense of the seriousness of the act, or what it truly means. You knew exactly what you were doing. It was not done in a single hit where an error of judgement on a single occasion may provide some explanation. You were doing it on a regular basis, in direct breach of your duties owed to your employer. You knew you were. It was calculated conduct, any way we look at it. Stealing money and covering it up by manipulating the records and then squandering someone else’s money, your employer's. Again, and again and again. You were not powerless, you were not without choice or free will. Each time you resisted what must have been the obvious need for treatment or counselling or seeking help or confiding in someone, anyone. Even after being unmasked in November of last year, no treatment was sought until much much later.
31 This offending was not founded on need. The addiction such as it was certainly did not deprive you of the knowledge of the serious nature of these crimes. Incredibly, you just stopped gambling overnight, once caught, and before being charged, as simple as that and that strikes me as being an unusual feature here. It is said in the reports that you felt a sense of relief when caught. Well that relief did not extend to telling anything resembling the truth in the second police interview.
32 The fact is, in terms of your criminal conduct, these were choices you made. You knew they were serious crimes and there is not much mitigation to be found in the labels or tags applied here in the expert reports. Dr Turnbull says there were some components of your mood state that lent themselves to finding yourself in a position of offending, but they were modest and would not have eroded your ability to appreciate the wrongfulness (of your conduct) or deprive you of the capacity to make sensible judgments. You had the gambling addiction. It is hard to know why. Lots of people are addicted to gambling and you were.
33 As to the gambling addiction, I can give it only some very modest weight in mitigation as is suggested to be the position by your counsel. He suggested it was part of the context and it is, as it is part of your personal circumstances at the time and that is something I have to have regard to. It is not and cannot be greatly mitigatory and the authorities are clear enough in this area. I will though, do as your counsel suggests, treat it as distinguishing your case from one where the taking is to fund an extravagant or lavish lifestyle. That style of aggravation is absent. I will give it some very modest weight in the reduction of your moral culpability.
Verdins
34 You heard some submissions made about a case referred to as Verdins. I am not sure you necessarily would have understood any of that dialogue yesterday. That is a decision of the Court of Appeal which deals with the effect on the sentencing process of conditions existing either at the time of offence, or sentence, or both. That is a gross simplification of that case, but it suffices for present purposes. The expert materials are not relied upon by your counsel as reducing in any way your moral culpability in a Verdins sense. Your counsel was explicit in his submissions in that regard. He stated that none of the first four principles from that case had any application here at all.
35 Mr De Kretser did however argue that the fifth and sixth limbs of that decision applied. That is, the condition referred to could mean that the sentence will weigh more heavily upon you and the sixth proposition that there was a serious risk of imprisonment having a significant adverse effect on your mental health. The condition he was relying upon was the major depressive disorder spoken of and the impact of that condition upon you in the service of the sentence. That is in increasing your burden. The practice direction at 7.6 in this area states that the report must state as precisely as possible the basis for each such opinion. The reports are not explicit in explaining why such a condition would increase any burden. Indeed, Mr Staios’ report when one examines it is quite dated. It arises from a consultation, a single one in March of this year.
36 The depressive state he described and saw then was plainly to a degree reactive to your then current predicament. See 3. 7 and 7.2 of his report. He spoke of the anxiety surrounding the legal matters. He expressed in March of this year, in relation to that consultation in March, a concern that an extended sentence, (whatever that may mean), could serve to exacerbate your existing psychological vulnerabilities. Well plainly that is not enough to enliven the sixth limb and on its own, would not enliven the fifth limb either.
37 Dr Turnbull’s consultation though is far more recent. He describes at page 2 your drifting into a depressive state since being charged. He says that you would struggle in custody, given the intensity of your current depression, but does not really give any further particulars. Your treater Ms Dixon describes your anxiety as escalating the closer your court date gets. None of this is surprising and she believes a term of imprisonment will be detrimental to your mental health. You have expressed concerns as to your risk.
38 Well as is very often the case with these Verdins type submissions, there is little satisfactory material placed before me, imprecise opinions and a high level of speculation engaged in and required. However, ultimately, I am prepared to find that the fifth limb has some very modest application here. You are currently labouring under a depressive disorder, in part, one that is reactive to your predicament and the anxiety of these proceedings. I am prepared to find that there will be some increase to your custodial burden. I am not satisfied on the materials that there is any adequate material to support the submission that there is a serious risk of imprisonment having a significant adverse effect on your mental health. That is not the evidence before me. I am not satisfied of that on the balance of probabilities. Therefore I do not moderate in relation to that sixth proposition, as it is not made out.
39 That is not to say I think you will take prison in your stride. You will not. Quite independent of any Verdins type considerations, ‘Blind Freddie’ would sense that prison for one such as you will be a struggle. You are 58, you have no prior exposure to the courts or to prison. This is all a foreign affair to you. Waiting for the blow to fall must be excruciating and you have been waiting for some time. There has been the delay spoken of and I turn now to that.
Delay
40 You were first arrested in November 2016 and caught red handed, in relation to the $900 transaction. You were sacked a couple of days later. You were interviewed and charged in July 2017. The matter settled quickly once you had been charged and brought before the court.
41 The plea should have been heard in March of this year and then in August of this year. Here we are in October. Your counsel raises that as being a matter in mitigation, namely that you have had the matter over your head and your mental health has deteriorated owing to that fact. That is rather the point I made a moment ago as to much of this being reactive to your predicament. In any event, there has been that period of time. It is not inordinate at all, it has not been brought about by some relaxed police or prosecution stance. Police had to investigate the offending. In the second interview you made full denials. Once charged, as I have said, it settled quickly and in October of last year, you were committed to this court to plead on 23 March 2018. It really should have been finalised on that date or shortly after and could have been. Instead, there have been these two adjournment applications made by your legal team, who are deemed to be acting on your instructions.
42 Of course it has been difficult, of course it has been stressful for you to have this matter over your head and I take that into account. Your condition has deteriorated. I have taken that into account already. Of course it will take some time for you to settle in and to adjust to prison life. One hopes that the reactive component of the depression may recede to some degree, once the case has in fact been finalised, as it will be today. As your counsel said yesterday, and he was correct when he said it, one of the most difficult days for a person coming to court is the day that you faced yesterday, of going into custody after all this time.
Sentencing purposes
43 As to the offences themselves, your counsel conceded that this was serious offending with a sizeable breach of trust. He was correct. The amount is the amount and it is large. Not in the millions, of course it is not, but it is over $450,000.
44 If all a court had to do is consider the prospects of rehabilitation of an offender, sentencing would be much simpler than it actually is. It is far more complex than just looking at your needs and what is best for you and for your family. I have to consider a number of purposes of sentencing, not only your prospects of rehabilitation. I must impose a just and proportionate sentence in relation to your offending. You must be punished and you know that. Just punishment is a very important sentencing purpose in this sort of case.
45 I must also denounce your conduct. Denunciation is also an important matter. Your conduct was extremely dishonest, it was not isolated in nature, it was of high enough monetary value and occurring in breach of trust. It must be strongly condemned.
46 There are other purposes of sentencing and I spoke of some of these yesterday in the course of discussions with your counsel. There is the need for this court to seek to deter you from offending in the future. That is known by us lawyers as the principle of specific deterrence. I must give the principle of specific deterrence at least some weight in my sentencing task and that is so despite your lack of criminal record and my favourable views, as to your future prospects and the assessment I make of you having a low risk of re-offence. You must never be tempted to engage in this sort of conduct ever again.
47 I must also consider the need to give weight to protection of the community which is another purpose of sentencing.
48 As I have announced earlier, I believe that you have good prospects of rehabilitation and a low risk of reoffending in the same way in the future and I believe that as a result, I can moderate to a quite significant degree, the weight to be given to specific deterrence and community protection in this case. They are still relevant to my task. They must be given at least some weight. I give specific deterrence and community protection some weight, just nothing like the weight I would give, had you less favourable prospects of rehabilitation or a relevant past criminal history.
49 General deterrence is however a very significant purpose of sentencing in this sort of case. That is the need for this court to send a clear message to other individuals in the community, who are in positions of trust, and who might be tempted to commit this sort of serious high monetary gain dishonesty offending. The court must strive to deter others.
50 These were neither isolated or minor criminal acts. Over fifty dishonest acts covered by the two charges in the timeframe specified. As I have said, you made a choice, it was a very poor one obviously to commit these serious crimes against your employer. You were not deprived of your will to act. You had that free will, you had that choice and no doubt you hoped that you would never be detected. Probably every offender holds that hope.
51 Crimes committed in breach of trust are often difficult to detect or not detected swiftly and often enough, that is because of the trust invested in the offender. You were expected to do your job. You were trusted to do it. Your crimes were not greatly sophisticated and discovery was highly likely. There was still the need for a detailed investigation. You knew the systems in place and you knew the changes to the cash management system that were coming in. You covered up your tracks. But for the footage, and other material tracked down by investigators in a detailed investigation, it would have been no easy business necessary linking you to the money which had gone missing. Even having done all of that, and placed it into the hands of the police for them to further investigate, you then denied any role in the second police interview.
52 As relatively unsophisticated as your crimes were, they were as your counsel conceded, more sophisticated than just putting your hand into a till and taking money. You did that. But in the setting of purporting to act as the team leader, and in the setting of having heightened responsibilities. Heightened responsibilities that gave you access to the system which you then used in an endeavour to hide your crimes.
53 So you used your position of trust to commit crimes upon the very organisation which was paying you. As I have said, they were not particularly sophisticated. You did what needed to be done to steal the money and cover up as best you could your misconduct. You represented that the money had been collected. Your counsel spoke in his submissions yesterday of the inevitably or certainty of your conduct being discovered. Well firstly, nothing is ever certain, especially when dealing with a very large organisation and with migration to a new cash management system. Losses can sometimes get lost in a company of the size of your employer.
54
As we know, it took a fair bit of dedicated leg work to unravel this conduct. Secondly, the likelihood of discovery is not of itself a matter in mitigation. Investigative eyes had turned to you. You had not desisted voluntarily or gone to your employer and confessed your crimes. You were caught out on
15 November 2016 and even then, for whatever reason, you chose not to make a clean breast of it when later interviewed.
55 So this was serious offending, committed in the setting of a serious breach of trust as is conceded by your counsel.
56 I do pay regard to current sentencing practices. I have looked at the Sentencing Advisory Council's snapshot in relation to the offence of theft. That is snapshot number 202 of April 2017. Those statistics are of very little use, given the matters I will shortly mention. I have looked also at a selection of cases held at the Judicial College of Victoria Sentencing Manual.
57 I raised yesterday the case of Thorpe, a decision of the Court of Appeal, 2016 VSCA 158, as having at least some similarities. That is all. It is not on all fours with your case at all. There were a number of matters in mitigation in that case which do not apply here, including a very lengthy delay at play there. So too though, there were matters in aggravation in that case which do not exist in yours.
58 The fact is the offence of theft can be committed in many ways and in a vast number of different factual settings. There can be differing acts, differing relationships. Sometimes, quite often, there is no element of breach of trust at all, but sometimes there is. There can be differing amounts and durations of offending. Sometimes a single act on a single day can account for an enormous theft. Sometimes a variety of smaller acts over a lengthy period are required. What I have to do as a Judge is to pass the appropriate sentence for your thefts and they are serious, as your counsel concedes. The two offences involve rolled up between dates offending in the context of the breach of trust. The amount was large enough. The money is gone.
Totality
59 I have taken into account the principle of totality of sentence.
60 I have engaged in a last look at the sentence imposed by this court, in endeavouring to guard against the imposition of a crushing term upon you and to ensure that the sentence is commensurate with your overall criminality. Your criminality I am afraid to say was high here.
Section 464ZF
61 I have been requested to make some ancillary orders. The first of those is an application for a forensic sample order. That application is not opposed. I have signed the order and I will now pronounce it. Having considered the seriousness of the circumstances of the offending, I am satisfied that the making of the order is justified, owing to the seriousness of the offending, the fact that the order is by consent and that I judge it to be in the public interest. I order pursuant to the provisions of the Crimes Act, that you undergo a forensic procedure, for the taking of a scraping from the mouth in accordance with the relevant provisions of the Crimes Act, until a sample of sufficient standard is obtained for placement on the database.
62 I am authorising the least invasive procedure which is a scraping from the mouth. I am not authorising a blood sample at this point. What this mean is that someone in a position of authority will approach you in the not too distant future and engage in a swabbing procedure. A mouth swab will be run around the inside of your cheek to obtain. It is not a particularly invasive matter. I have to advise you if you do not consent at the time, they can use reasonable force to enable that procedure to be conducted. Or for that matter, they can come back and make application for a blood sample which to this point I have not authorised, but I have signed that order.
Compensation
63 Secondly, there is also a compensation order sought in this case, pursuant to the provisions of s.86 of the Sentencing Act. Again, it is not opposed and essentially what it provides to Coles is a judgment debt in the amount spoken of in the order. I am satisfied that it is appropriate to make the order. I am satisfied that Coles has suffered the loss spoken of in the order.
64 I order that you pay to Coles Lalor at the address on the document compensation in the sum of $452,390. As I say that operates as a judgment debt. In a way it circumvents the sorts of proceedings that Coles otherwise may take in a civil jurisdiction. In any event, I have made the order.
Disposal
65 Finally, there is also a disposal order and that is under the provisions of the Confiscation Act, s.78. Again, there is no opposition to the making of the order. I have signed it and I order that the item in the schedules, the receipts, that they pursuant to the relevant provisions be forfeited to the State and dealt with in the manner contemplated by the order.
Boulton
66 Your counsel referred me yesterday to the Court of Appeal decision of Boulton, a decision I am well familiar with. It is referred to in virtually every second plea conducted in this court. He argued yesterday for an immediate term of imprisonment. He conceded that that was inevitable, but that there should be a release mechanism, with your being released onto a community corrections order. The Crown argued that such an outcome was not open in this case.
67 In the past, in an appropriate case, the court had a period of up to two years prison available to combine with a community corrections order. Following amendments made last year, I only have at my disposal a period of no more than 12 months prison, in combination with a community corrections order. If such an outcome achieved all the purposes of sentencing, then I would proceed in that way. Prison is always a disposition of last resort. Prison is warranted here, as your counsel correctly concedes.
68 A court must never pass a more severe sentence that is warranted to achieve the various needs of sentencing. General deterrence, denunciation and punishment are prominent purposes of sentencing in this case and in my judgement, those purposes cannot be adequately reflected in the combination type disposition urged upon me by your counsel. Your offending is just too serious.
69 One can always see some advantages with release onto a community corrections order. Your counsel suggests the provision of that guaranteed release mechanism would be of some comfort to you, as you commence your sentence. Well maybe it would. But what I have to do is pass an appropriate sentence, not select a disposition that has some advantages and plot some course to it. A term of twelve months imprisonment, even in combination with a suitably conditioned community corrections order is simply not adequate in this case, in my assessment.
Aggregate
70 I believe I can deal with you by way of an aggregate sentence and I have raised that earlier this morning with both counsel and they each agree. There is an obvious unity as between these two charges. It is a series of offences of the same character, of that there can be no doubt.
71 It would be open to me to pass two individual sentences, to mark out the sentence on Charge 2 as the base sentence and then pronounce the level of cumulation upon the base sentence. I see no need to do that here and I am going to pass an aggregate sentence in the circumstances.
Sentence
72 I now move to pass sentence. I apologise for the length of my remarks, but you and your family and others have to understand why I am doing what I am doing. I will have you remain seated, thank you.
73 On Charges 1 and 2 on this indictment, being the two charges of theft to which you have pleaded guilty, I convict and sentence you to an aggregate term of 32 months or two years and eight months imprisonment. That is therefore the total effective sentence. I fix a period of sixteen months, during which you will not be eligible for release on parole. You have been in custody in relation to these matters for a period of one day and that period is to be declared as having been served already under that sentence. That declaration is to be noted in the records of the court.
Section 6AAA
74 I have taken into account your early guilty plea. I have passed a lesser sentence because of it. I now let you know the dimensions of the saving you have brought about by your early guilty plea. Had you been found guilty of these offences by a jury, I would have convicted and sentenced you to four years, eight months imprisonment. I would have fixed a non-parole period of two years and ten months and that statement, made under the provisions of s.6AAA, is to be entered in the records of the court. Is there anything else I need to deal with at all?
75 MS BARRETT: No, Your Honour.
76 MR DE KRETSER: No, Your Honour.
77 HIS HONOUR: All right, in terms of custody management, I have made the order that I made yesterday on the material. What if anything do you want me to raise today?
78 MR DE KRETSER: Well Your Honour, as I understand my client wasn't - was seen by a nurse yesterday when she got back to Dame Phyllis Frost, but despite assurances I have from the Assistant Commissioner of Corrections last week when I cross-examined him on a similar issue, no doctor was available to see my client last night. She's without medication and in a state of distress still and should be seen immediately by a doctor, in my submission.
79 HIS HONOUR: All right, well - - -
80 MR DE KRETSER: I know Your Honour can't control that, but if a note could be made to that effect.
81 HIS HONOUR: Well she is a sentenced - look it's probably - I think she was received pretty late, I don't quite know why because the order was signed pretty early on. It won't pan out like that today, she'll be serving a sentence now, a sentenced prisoner. Anyway I've alerted them yesterday in that document to some of the issues. What do you want me to deal with today if anything?
82 MR DE KRETSER: Just a repeat of those issues, Your Honour, and a note that she's yet to be seen in a custodial setting by a doctor and if that has a degree of urgency.
83 HIS HONOUR: Yes anyway have a seat. I think in the circumstances I will simply repeat what I put in the document yesterday. It is her first time in custody, please take all care. She is highly distressed and anxious. She has been prescribed antidepressant medications Zoloft. She will need to be seen by a nurse or a medical practitioner - I will insert as soon as possible.
84 MR DE KRETSER: I mean the only change Your Honour is she has requested to see a doctor and it hasn't been facilitated.
85 HIS HONOUR: All right. So I will say she has requested to see a doctor.
86 MR DE KRETSER: Yes.
87 HIS HONOUR: She will need to be seen by a nurse or medical practitioner and I will refer them again to the report of Fiona Dixon, as to her risk in custody.
88 MR DE KRETSER: Thank you, Your Honour.
89 HIS HONOUR: If I put it in those terms, is that adequate?
90 MR DE KRETSER: Yes, Your Honour, thank you.
91 HIS HONOUR: You will go down and see her downstairs?
92 MR DE KRETSER: I will.
93 HIS HONOUR: All right, well thank you. I will sign that order in a second, once it is - yes all right, well I have signed that formal order. Yes, thank you. Well that completes the matter then. So if Ms Naughten can be removed, thank you.
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