R v Callery
[2017] VCC 276
•20 March 2017
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised (Not) Restricted Suitable for Publication |
CR-16-01645
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAWN ELIZABETH CALLERY |
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JUDGE: | HIS HONOUR JUDGE PUNSHON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 10 March 2017 | |
DATE OF SENTENCE: | 20 March 2017 | |
CASE MAY BE CITED AS: | R v Callery | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 276 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J. Singh | Office of Public Prosecutions Victoria |
| For the Accused | Mr D. Sala | Galbally Rolfe |
HIS HONOUR:
1 Dawn Elizabeth Callery, you have pleaded guilty to two charges of obtaining a financial advantage by deception (Charges 1 and 2) and one charge of theft (Charge 3).
2 The prosecutor, Mr Singh opened the circumstances of your offending by reading from a written "Prosecution Opening For Plea" which was tendered.
3 In short, you were employed by the ANZ Bank as an Executive Assistant on a salary of $83,000 per annum. Concerning Charge 1, you used computer logon and passwords of two of your supervisors to make false claims for overtime payments. Such claims had to be authorised by a supervisor. There is no suggestion that you contrived or tricked these superiors into supplying you with their computer details, however you should not have had access to these details. Nevertheless, your offending involved your two superiors and you seem to have betrayed their trust, as well as that of your employer.
4 The system-generated emails to the appropriate supervisor for confirmation when an overtime claim was made. You either deleted these emails or placed them in a folder where they were unlikely to be undetected. You falsely claimed between 38 and 184.5 hours of overtime per fortnight. The total amount falsely claimed was $304,180.89.
5 Charge 2 relates to improperly refunding private expenses from the ANZ on two occasions. The respective amounts on each occasion being $1,400 and $1,000.
6 Charge 3 concerns the use of your ANZ Corporate Credit Card to purchase personal items on 14 occasions. The total amount stolen is $8092.12.
7 The total of the financial advantages and theft that is the subject of these frauds is $314,637.01, however income tax was allocated in the sum of $127,000. This means that you received $187,673.01 in total. The ANZ is seeking to recover this sum from you. The bank has taken the view that it may be arguable that they cannot seek to recover money from you that you did not actually receive. In these circumstances, the bank are pursuing recovery of the sum forwarded to the ATO as PAYG tax from the ATO. Discussions with the ATO are currently ongoing.
8 Mr Sala appeared for you. He tendered a folder of material.
9 To explain the offending, he submitted that you were overborn by circumstances and a desire to provide for your family.
10 You recently turned 49. You were born in London and have been married for over 27 years. You came to Australia in August of 1991, but returned to the UK in 1992. You had a daughter in October 1991 and two boys in 1993 and 1994. You have always been actively employed and were described by your counsel as a prodigious worker, continuing to work throughout periods of significant ill health. In England you worked as a personal assistant before returning to Australia and settling in Melbourne in 2002. You worked for the NAB for 10 years before commencing at the ANZ in 2012.
11 You continued to work after the discovery of your offending and most recently in early 2016 began working for Medibank as a personal assistant. You also assist with a well-known charity food provider at the Abbotsford Convent. Both Medibank and the charity are aware of your offending and are supportive.
12 It seems you began experiencing significant financial stress shortly before the offending and sought financial guidance, but it seems this was largely ineffective. The majority of the money you obtained was spent on family expenses, although your counsel conceded that “some of the money went towards a holiday and other luxurious spending”. The holiday, I was informed, was the only one your family had been on.
13 It was submitted by your counsel that your motivation for the offending was to ensure your family, particularly your children, were provided for. As I followed, despite the fact that your three children are now adult, albeit one is studying, they have been financially demanding and placed pressure on you to support them and pay various bills and provide them with gifts. You complied with what your counsel described as an almost pathological need or desire to do so. Your husband is a cook, his income has always been limited, and you have always been the primary provider. One child, in particular, has been very demanding of your support, and has also been controlling and aggressive to the extent that an intervention order had to be taken out against him somewhere between two and four years ago, and he was removed from your home for about eight to ten months before returning.
14 Your motivation, argued your counsel, could be distinguished from those cases where frauds are undertaken for greed or to support an extravagant life-style. Your family, it seems, have lived relatively modestly. I accept that your motivation seems to have been to support your family and your children, in particular.
15 Your counsel relied heavily on your history of physical ill health and your current mental fragility. He urged me to keep in mind that the offending occurred in the setting of your relatively poor health generally, financial debt, and the pressure exerted by your children to assist them financially.
16 Your history of ill health was summarised in a table which was part of the tendered material. You certainly have had more than your fair share of serious health problems since your late 20s. For example, since 2009/2010 you have had breast cancer, depression and anxiety, coeliac disease, had part of your uterus removed, and more recently in 2016, you were diagnosed with major depressive disorder and generalised anxiety and prescribed medication. You also currently suffer undiagnosed abdominal pain and swelling which needs to be kept under supervision.
17 Your counsel specifically disavowed any reliance on the Verdins principles, however there is evidence from a psychologist to which I will refer in a moment, that you will find prison onerous and would be vulnerable in custody.
18 You did not make full and frank admissions when initially interviewed by bank investigators, and a committal proceeding was “run”, albeit “upon a narrow basis”. Nevertheless, it is clear that you must benefit from your pleas of guilty. They were not made at the earliest time, as is conceded by your counsel, but nevertheless they save time, expense and the need for witnesses to give evidence at trial. I am prepared to accept that your pleas are accompanied by remorse and that there is other evidence of your genuine contrition and remorse.
19 You have no prior criminal history and nothing pending. This is important in determining your rehabilitative potential. I think it unlikely that you will re-offend. Of course, whatever penalty I impose is intended to deter you from offending. Nevertheless, your counsel’s submission that you were driven by a pathological desire to assist your family makes it difficult to be very confident about your future prospects. At the very least this drive would need to be addressed.
20 To your credit, you have consented to the making of the compensation order sought by the bank as referred to earlier by me. I accept your consent to this order is genuine, however the financial circumstances of you and your family are parlous at the present time.
21 After your offending was discovered you lost your job. Mortgage payments on your family home could not be met and the home was sold. Your husband, who gave evidence, said this did little to alleviate your financial burdens, and you have entered into an agreement with debtors in an attempt to satisfy outstanding debts totalling $72,800. The first payment is due in mid-April this year.
22 Psychological reports from Sarah Tiong, clinical psychologist, and Patrick Newton, clinical and forensic psychologist, were tendered. You were referred to Ms Tiong by your general practitioner. Ms Tiong has been treating you since early February.
23 You confirmed to Mr Newton that a primary motivation for your offending was your attempt to service borrowings in order to support the lifestyle to which your family were accustomed.
24 You also told Mr Newton that in addition to suffering breast and ovarian cancer, both in remission, you suffer glaucoma, migraine headaches and gastro-oesophageal reflux, all of which require specialist attention and ongoing medication.
25 The current proceedings have increased your anxiety.
26 Mr Newton noted your remorse and shame and thought your regret for your behaviour was so intense that it had become incorporated into your depressive symptoms in “the form of an intensely self-punitive dialogue”. You also expressed sorrow for the effect of your conduct on the bank, and you wish to make restitution as soon as practicable.
27 Mr Newton thought your current symptoms consistent with the diagnosis of recurrent major depressive disorder. Your depression has been likely to diminish your capacity for clear reasoning and decision-making.
28 Mr Newton considered your self-esteem has been so wedded to your ability to assist your family that you have been willing to compromise your safety, health and emotional well-being, as well as making unsustainable financial decisions in pursuit of the perfectionist ideal you have set yourself as a mother and provider.
29 Mr Newton noted regular bouts of intrusive suicidal ideation, and whilst you deny any active intent to harm yourself, he thought you remained at elevated risk for impulsive acts of self-harm. Precautions were needed, he thought, to ensure such behaviour is prevented.
30 Your depressive symptoms are becoming more intense with the passage of time and require ongoing treatment. Without it your vulnerability is likely to increase.
31 If imprisoned, Mr Newton considered it likely you would take time to adjust and would be vulnerable generally in a prison environment. Your pre-existing depression, multiple medical problems and fragile emotional stability would combine, considered Mr Newton, to make your experience of prison more onerous than prisoners without your constellation of problems.
32 Additionally, given your particular commitment to providing for your family, the worry of how your family would cope without you is likely to weigh more onerously on you than would be typical of others who suffer this worry.
33 Mr Newton thought you had “positive prospects for return to productive engagement with mainstream society”.
34 I accept Mr Newton’s opinions, although as already noted, I am nevertheless cautious about the risk of reoffending, which as I see it, will require psychological treatment to ameliorate this risk.
35 A number of supportive character references, including references from your husband and children, were tendered. Three of the authors including your husband gave evidence. You are clearly well loved and respected by those close to you who are shocked by your offending as it is inconsistent with the person they know.
36 As noted earlier you have consented to me making a compensation order and I will do so.
37 You also consented to me making an order for the taking of a forensic sample. I will make this order, and I need to tell you that a police officer may use reasonable force to obtain the sample.
38 Your counsel submitted that all sentencing objectives could be met with release on a lengthy community correction order.
39 The prosecution, emphasising the significant sum of money involved in your offending, submitted that even allowing for the reduced sum that was actually lost to your employer, your breach of trust, the fact that some level of sophistication was employed to facilitate the frauds, the extended period over which the offending occurred (just under two years) as well as the “three prongs” to your offending being reflected in the three charges, that only immediate imprisonment was open. Indeed, Mr Singh submitted that even a combined CCO and prison sentence was not open. He made this submission at a time when a sentence of imprisonment of two years or less could be combined with a CCO. As of today the permissibility of such a combined order is restricted to imprisonment of one year or less.
40 In my view, immediate imprisonment is necessary, and released on a combined order of imprisonment and a CCO is not appropriate.
41 The prison authorities are to be advised of your mental fragility and Mr Newton’s concerns about self-harm, if not risk of suicide. To that end, I propose to provide his report to the authorities unless there is some objection.
42 You will be convicted of all three charges and sentenced to an aggregate term of 30 months' imprisonment, with a non-parole period of 15 months' imprisonment.
43 Had you not pleaded guilty, I expect I would have sentenced you to a term of about 40 months' imprisonment with a non-parole period of about 24 months' imprisonment.
44 Have the orders for me to sign been prepared?
45 MR SINGH: Yes Your Honour.
46 HIS HONOUR: Mr Sala, do you want to say anything about the provision of the report to the prison authorities?
47 MR SALA: No, not at all Your Honour.
48 HIS HONOUR: Mrs Callery, you will have to go into custody, so you will have to go with the prison officer, thank you. All right, I will adjourn, thank you.
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