DPP v Venn
[2017] VCC 1043
•7 June 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
Case No. CR-16-01511
Indictment No. F14079701
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PENNI JANE VENN |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF PLEA HEARING: | 26 May 2017 | |
DATE OF SENTENCE: | 7 June 2017 | |
CASE MAY BE CITED AS: | DPP v Venn | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 1043 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Boulton & Ors v R (2014) 46 VR 308
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Isle | |
| For the Offender | Mr C. Mandy |
HER HONOUR:
1 Penni Jane Venn, you have pleaded guilty to five charges of theft (Charges 1, 2, 4, 5 and 6) and one charge of obtaining property by deception (Charge 3). The maximum penalty for each of these offences is ten years’ imprisonment.
2 The circumstances of your offending are set out in the Amended Summary of Prosecution Opening on Plea, which was tendered as Exhibit A. The circumstances in brief are as follows. Your offending occurred between
23 October 2009 and 7 March 2013. During that time, you were engaged by SJD Homes Pty Ltd, a building company, to provide bookkeeping services on a subcontract basis. You worked from home. You were trusted to have unsupervised remote access to the company’s bank accounts and accounting software. You, on some occasions, were entrusted with blank cheques. You would prepare cheques for the managing director to sign. You also effected electronic transfers of funds. You were entrusted with access to the bank accounts of the company, and from 2011 this included passwords and “tokens”, enabling online payments to be made. You were responsible for preparing monthly bank reconciliations, reconciling the accounting records to the bank statements.
3 Over the same period of time, the company engaged your husband to carry out subcontract plastering work on building sites. Your husband handled about half of the company’s building projects.
4 Between 23 October 2009 and 23 December 2009, you stole three cheques, and, using those cheques, transferred $27,068.13 into your account (Charge 1). Between 1 February 2010 and 8 December 2010, you stole seven cheques and, using those cheques, transferred $40,485 into your account (Charge 2). Between 31 January 2011 and 25 October 2011, you stole $45,138.31 by seven unauthorised electronic funds transfers (Charge 4). Between 19 April 2012 and 21 November 2012, you stole $31,462.20 by three unauthorised electronic funds transfers (Charge 5). Between 13 February 2013 and 7 March 2013 ,you stole $21,326.51 by two unauthorised electronic funds transfers (Charge 6).
5 On 9 June 2010, you purchased a shower base from Hardy’s Mitre 10 for private use using the company’s supplier account (Charge 3).
6 A total of $165,480.15 in 22 unauthorised payments were paid by you into bank accounts in the name of yourself and your husband. This involved ten cheque payments in 2009 and 2010, totalling $67,553.13, and 12 electronic transfers in 2011 to 2013, totalling $97,927.02. An Appendix attached to the Amended Summary of Prosecution Opening on plea sets out details of the transactions which are the subject of the charges.
7 On some occasions, you made false entries in the paper or electronic records of the business to conceal or disguise the payment. Your husband’s status as a frequently used subcontractor made detection of amounts paid into the accounts more difficult. You obtained the managing director’s signature on cheques payable to your husband, but recorded a different payee on the cheque butt.
8 The electronic funds transfers from January 2011 were supposedly made in payment of plastering invoices from your husband. You made false entries to hide duplication and entered transactions into a separate account or other accounts with associated false entries to conceal payments. In respect of Charge 6, the last online payment was of $10,586. You arranged for this payment to be reversed a week later, in circumstances where you were going on leave and were asked to explain to another staff member how to do the bank reconciliation.
9 Irregularities in payments were discovered in late August 2013. The company began an investigation of the matter and suspended your retainer. The company reported the thefts to police on 26 September 2013.
10 The company sought recovery of moneys through civil litigation. Solicitors on your behalf admitted overpayments of a certain amount and claimed offsets. The amount then repaid was $37,142.81. The balance of $117,837 remains owing. Summary judgment in respect of the civil matters was obtained on
29 September 2014 in the amount of approximately $104,000.
11 You were interviewed on 5 August 2014 by police and denied any dishonesty. The matter was listed for trial on 22 May 2017 at a funding mention on
22 November 2016. The Court was advised that the matter had resolved, and it was relisted for a plea hearing.
12 In sentencing you, I have taken into account your personal history, which was outlined by your counsel. You are now 48 years old. You and your husband have three children, the youngest of whom is in Year 12. The children all live at home. Your parents separated when you were very young, and you were brought up mostly by you mother, with very limited financial resources. Both your parents have children from other relationships and have stepchildren. You have good relationships with most family members. You have otherwise an unremarkable upbringing. You left school at the end of Year 9, but later went back at night to complete Year 12. You have been employed in various jobs, including hairdressing, administrative and reception duties, and nursing.
13 Your husband started his own plastering business in 1997. After he had a heart attack in 2006, you sold your house to reduce the mortgage, and your husband reduced his business. Your combined family income was limited, and the children were attending fee-paying schools. At this stage, the family was struggling financially.
14 You have been involved in your children’s schools and sporting clubs. From 2008 to 2010, you visited a nursing home twice-weekly in a voluntary capacity. After that time, you continued to attend, but more irregularly. A number of references have been provided by your family members and friends. Those references speak very highly of your qualities as a friend and parent. You live in a relatively small community, and your standing has altered significantly as a result of your admitted misconduct.
15 In sentencing submissions, your counsel submitted that the appropriate sentence would be a Community Correction Order. Your counsel accepted that your offending constituted a significant theft from an employer. It was accepted that general deterrence had special significance, as did denunciation, but it was submitted that imprisonment was not the only option, and that a Community Correction Order could adequately meet these sentencing considerations.
16 Your counsel, in mitigation, particularly relied on your plea of guilty, the partial repayment, delay, lack of any prior history, excellent prospects of rehabilitation, prior good history, prior good character and personal history.
17 Your counsel said that you did not have any problems such as gambling or drug or alcohol issues. Your offending was in the context of pressing financial circumstances, but could not be described as being for need.
18 Your counsel relied on the delay in this matter, particularly between the report to the police in 2013 and the laying of charges at the end of 2015. Your counsel said that you have been of good behaviour during the delay, and that that was significant.
19 Your counsel said that there was an offer to plead guilty in August or September 2016 to a lesser sum, and a similar offer after the committal hearing, and that that should be taken into account. Your counsel said that it was only in the context of a contested committal hearing that material was provided from the company’s computer system, which would provide the opportunity to check on what the amounts had been and what amounts were appropriately the subject of charges. There were difficulties in ascertaining the quantum. Your counsel argued that your plea of guilty should be accepted as indicating some level of remorse, given that you have now pleaded guilty on the basis of the amount alleged. He conceded that you could not be said to be as remorseful as a person who had pleaded guilty at the first opportunity.
20 The prosecution, in the Amended Summary of Prosecution Opening, referred to a house and land package that you had purchased during the period of offending as an investment. Your counsel said that that was a house and land package purchased from your employer, and the purchase was funded by borrowings. You had gained approximately $30,000 as a result of the sale of the property. Your counsel submitted that your motive for offending was to provide extra support for your family, but there was no evidence of any form of lavish lifestyle.
21 In respect of your children, your counsel submitted that your principal concern was in respect of your youngest child, who has some difficulties of her own and is completing Year 12.
22 Your counsel referred to a number of cases in support of the contention that a Community Correction Order without imprisonment would be an appropriate penalty. Although a suspended sentence would be an available option, given the period of your offending, your counsel submitted that a Community Correction Order would be the appropriate sentencing disposition. Your counsel principally relied upon the decision in Boulton & Ors v R (2014) 46 VR 308.
23 The prosecutor, in sentencing submissions, said that there was some similarity in the comparable cases, but also some marked distinctions. The prosecutor submitted in this case, there were significant matters of mitigation, which were not present, and that an immediate term of imprisonment was the only appropriate sentence.
24 The prosecutor referred to the civil proceedings and at least partial denial of liability throughout those proceedings. The prosecutor relied on the decision in DPP v Bulfin (1998) VSC 261. The prosecutor submitted that this was not a case where there ought to be moderation of general deterrence due to pre-existing conditions, or where there was an early plea of guilty with expressions of remorse. The prosecutor referred to the references and said there was no express acknowledgement of remorse or impact more broadly. The prosecutor submitted that taking into account the breach of trust, the amount, the period of time, and the late arrival to accepting liability meant that an immediate term of imprisonment was the only appropriate penalty.
25 Penni Venn, the charges to which you have pleaded guilty cover serious offending over a period of approximately three and a half years. Over that period, you engaged in repeated acts of dishonesty against your employer. The amounts you took each time were not very large, but added up to a significant amount over that time. You abused the trust your employer had in you. You used your husband's work for the company as a cover. You engaged in devious and deceptive practices to carry out your crimes and to avoid detection.
26 Given the matters set out in the references and your background, it is difficult to understand how you managed to justify this considerable dishonesty to yourself. I accept that your motivation was not to engage in leading a lavish lifestyle. It appears that your motivation was to keep your family life continuing at a level which you and your husband could not then afford. You have no mental health issue which might decrease your moral culpability. Your offending was deliberate and calculated, and your moral culpability is high.
27 Your offending has caused considerable harm. The harm of this type of offending generally is well-recognised in the cases. Employers must be able to entrust employees with financial transactions. If they were not able to do so, businesses could not operate. The type of offending in which you engaged diminished confidence in employers' ability to trust their employees.
28 Two Victim Impact Statements were tendered by the prosecution. Exhibit C is the Victim Impact Statement of Mr Simon Dunstan, who operates the company. Exhibit B is a Victim Impact Statement from his wife, Mrs Mandy Dunstan, who is also a director of the company. Those Victim Impact Statements make it clear that the harm caused by your offending has gone beyond merely the offending involved in a breach of trust in employment. It appears from those Victim Impact Statements that you and your family had become friendly with the Dunstans and their family. Your offending has caused difficulties in those relationships, has caused enormous emotional impacts on both Mr and Mrs Dunstan. There have been financial consequences for them and their company.
29 Mr Dunstan also speaks of the difficulties caused by your failure to make an early plea of guilty. He speaks of the difficulties that the discovery of your offending has caused in social circles that they and their children are involved in. Mr Dunstan speaks of his anxiety, stress, and sleeping disorders.
30 Mrs Dunstan also refers to the significant emotional and financial impact of your offending. She also speaks of the difficulties that her children and the family generally have experienced in socialising, given the relatively small community in which both families live. Mrs Dunstan, "I feel betrayed, hurt and angry that myself, and particularly my children have been subjected to such unwarranted and unremorseful deceit." I have no doubt that Mr Dunstan shares those emotions as well.
31 In respect of your offending, there are aspects typical of corporate crime, as described in the case of Bulfin. Such criminality is difficult to detect. In that case, the importance of denunciation and general deterrence were stressed. The court, in that case, said that, "A substantial period of imprisonment without an unduly short non-parole period would be more likely to have a deterrent effect."
32 Your offending is serious, but, in my view, in the mid-range of this type of offending. The amount of money and level of dishonesty involved is not as serious as the offending in Bulfin, which was described by His Honour Justice of Appeal Charles as, "of Leviathan proportions over a period of years."
33 There are a number of matters to be taken into account in mitigation. You have no prior criminal history. You have a previous good character. The references speak highly of your contribution in respect of your family, friends, children's schools and local community.
34 Your plea of guilty was made late. It was certainly not at the earliest opportunity. You exhibited some resistance - in fact, considerable resistance to accepting total liability. Despite that, I accept that your plea of guilty is an indication of remorse. The references describe your shame and remorse. I accept that your remorse is genuine, and at a higher level than mere regret for the consequences to yourself and your family.
35 The delay in this matter has been significant, especially between the report to the police and the police charging you. That may have some relationship to the instigation of civil proceedings. Whether that is the case or not, the matter has been hanging over your head for some time. During that period, you have remained offence-free, and from the references provided, have done your best to provide support and stability for your family.
36 I would assess your prospects of rehabilitation as being very good. Your prospects are not, in my view, excellent, given that you were prepared to engage in this level of dishonesty. Your dishonesty has now been revealed, and you are unlikely to ever be in a position to have access to money in the same way that you did in respect of this offending.
37 Your offending is known in your community. Despite your offending, you have significant support from your children, from your family and your friends. The references speak of some difficulties in respect of your relationship with your husband as a result of this offending, and the impact within the community, but he continues to be supportive of you.
38 I have taken into account that you have suffered some consequences within the community, with a degree of ostracisation. Your employments prospects have clearly already been affected, in that you have lost one job when you were charged, and no doubt you have diminished prospects of ever being employed in a similar capacity again.
39 I have taken into account, in mitigation, that a proportion of what you stole has been repaid. General deterrence and denunciation remain very important sentencing considerations. Specific deterrence has less weight, given the exposure of your offending, your remorse, and your prospects of rehabilitation.
40 In sentencing you, I must take into account factors including current sentencing practices, as well as the decision in Boulton. The statements of the Court of Appeal in that case as to the punitive aspects of a Community Correction Order are particularly apposite. Further, the Sentencing Act provides that no sentence of imprisonment ought be imposed, unless that is the only option.
41 In this case, I consider that imprisonment is not the only option, given all the factors and considerations to which I have referred, including my assessment of the seriousness of your offending and the harm it caused. I consider there is another alternative to imprisonment, and, accordingly, a suspended sentence would not be appropriate.
42 A lengthy Community Correction Order with substantial work hours provides for significant punishment. It would allow you the opportunity to demonstrate your continued rehabilitation within the community. The sentencing objectives of just punishment, general deterrence and denunciation can, in my view, adequately be addressed by such a Community Correction Order. You have been assessed as suitable for such an order.
43 Could you please stand, Ms Venn. Ms Venn, I understand that the core conditions of a Community Correction Order have been explained to you. I understand that you have, on that basis, consented to such an order being made. One very important condition is that you must not offend during the period of the order. If you do commit any offence for which imprisonment is a potential penalty, you will be brought back before me on breach of the Community Correction Order. Do you understand that?
44 OFFENDER: Yes, I do.
45 HER HONOUR: You can be resentenced in respect of this offence, and of course would be sentenced in respect of any further offending. The order that I propose to impose would last for three years and involve 350 hours of community work. Do you consent to that Order being made?
46 OFFENDER: Yes, I do.
47 HER HONOUR: Thank you. On each of the charges (1 to 6), you are convicted and sentenced to a Community Correction Order for a period of three years, with the special condition that you perform 350 hours of community work. But for your plea of guilty, I would have sentenced you to two years' imprisonment, with a non-parole period of 15 months. Can you please take your seat.
48 Mr Mandy and Mr Isle, is there anything you need repeated, or that has not been covered as a technical matter?
49 MR MANDY: No, Your Honour.
50 MR ISLE: No, Your Honour.
51 HER HONOUR: All right, thank you. I'm just checking this. Mr Mandy, would you go with Ms Ollquist, please, and obtain Ms Venn's signature on that Order. Yes, thank you. Thank you, Mr Cullen.
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