R v Fawcett

[2015] VCC 95

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

AT MELBOURNE

CRIMINAL DIVISION

CR-14-01141

DIRECTOR OF PUBLIC PROSECUTIONS

v

JENNIFER FAWCETT

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JUDGE:	HIS HONOUR JUDGE PUNSHON
WHERE HELD:	Bendigo and Melbourne
DATE OF HEARING:	14 November 2014 & 29 January 2015
DATE OF SENTENCE:	6 February 2015
CASE MAY BE CITED AS:	R v Fawcett
MEDIUM NEUTRAL CITATION:	[2015] VCC 95

REASONS FOR SENTENCE
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Subject:  
Catchwords:            
Legislation Cited:     
Cases Cited:            
Sentence:                 

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr J.J. Jassar	Office of Public Prosecutions Victoria
For the Accused	Mr N. Hutton with Ms M. Tait	Ian Robertson Lawyers

HIS HONOUR:

1       Jennifer Fawcett, you have pleaded guilty to eight charges of theft.

2       The prosecutor opened the circumstances of the offending by reading from a written ‘Summary of Prosecution Opening’, which was tendered.

3       In brief, you were employed to maintain financial records of your employer.  In this capacity you stole a total of $311,874.13 by transferring money belonging to your employer into accounts owned by yourself, your husband and other family members, as well as purchasing numerous items using your employer’s bank accounts, without authorisation.

4       Each charge is a rolled-up charge and reflects one month’s offending between October 2011 and June 2012, with the exception of April 2012.

5       You used a complicated system to steal and hide your offending which was discovered during an audit when a payment of $90,000 into your mother’s bank account, made in mid-June 2012 and not fully concealed by you, was identified.  You made this transaction on your last day at work before going on a family overseas trip for five weeks.

6       In your absence, your employers obtained a Mareva injunction to secure or freeze your assets.  On returning to Australia, you became aware of the injunction and pending civil proceedings.

7       You were interviewed by police on 3 October 2012 but made no comment.

8       However, you pleaded guilty at the first reasonable opportunity, at committal mention, on 25 June 2014.

9       The business from which you stole was a family run piggery owned by two brothers and family members.  

10      A Victim Impact Statement was tendered.  

11      As is often so in cases such as yours, you were a trusted employee.  The impact of your offending has been substantial.  It seems that the financial impact, although considerable, has been manageable.  You were an employee of the firm for about seven years and had formed a close personal relationship with one of the owners, a subject to which I will return later.

12      The civil proceedings which involved you, your husband, your daughter and mother were resolved in a Deed of Settlement, dated 8 February 2013, a copy of which was tendered by your counsel.  Your home in Pyramid Hill, at an agreed value of $180,000, with you being required to meet the outstanding mortgage, was transferred as part of the settlement.  Various chattels purchased with stolen money were surrendered.  Undertakings to release funds held in accounts were made and the sum of $73,000 was agreed to be paid in instalments by you, your husband, your daughter and mother, over a total of seven years.

13      The civil claim was complex and involved resolution of matters beyond the stolen money including an allegation of sexual harassment by you against your employer.  Its terms are confidential.

14      You rely on the terms of settlement as evidence of having made substantial restitution to the victims so as to mitigate your offending and provide evidence of remorse.

15      Despite the fact that you were joined with others in the civil proceedings, it was common ground on the plea that you were solely responsible for the thefts.  Your husband was initially charged but those charges were withdrawn.  Although bank accounts of others were used by you, it was not disputed that you did this as a conduit to disposal.  You had authority to use the accounts of others, principally your husband and mother, who were unaware of the use to which their accounts were put.  Both are legally blind and relied upon you to manage their accounts.  You told your family that the apparent increase in wealth, resulting from the stolen funds, was due to drawing down on your mortgage.

16      I accept that very substantial restitution has been made.  However, I also accept the prosecution submission that it is relevant that civil process was used to secure this end.  You are not entitled to the same mitigation of punishment that would be available had the entire amount stolen been repaid immediately and without legal process.  Mr Jassar correctly noted that there is a distinction between paying money through civil action and voluntarily paying money as reparation.  He was also correct to emphasise that the money agreed to be paid in instalments is a promise to pay and not to be equated with actual payment.  Nevertheless, the fact of this very substantial restitution and your undertaking, particularly given your limited capacity to make restitution, is an important factor in mitigation.

17      Your counsel sketched your background noting that your parents, who attended court to support you, though separated, remain good friends, despite divorcing, remarrying and divorcing again.  You are aged 48 and have no prior or subsequent criminal history.

18      Your current marriage is your third, with two children being born to each of your previous marriages.  Those children are now aged 23, 21, 16 and 15.  You had a further child, now aged four, with your current husband, Craig Fawcett.

19      You were born in England and came to Australia aged five.  You returned to England aged 11 and then came back to Australia when 16, ceasing your education in England at about year 11.  You worked as a cashier with Coles for three years before being trained in payroll skills with a cigarette distributor.  You worked for Myer for seven years before taking up employment with the victim company in 2003, where you remained as office manager until your offending was discovered. 

20      You had borrowed from your employer during this period and repaid these loans.

21      Submissions were made from the Bar table concerning your perception of your relationship with one of your employers.  You instructed your legal advisers that he showed you unwanted sexual attention and, indeed, that on one occasion you slept with him.  You said you felt you could not resist his attention because of your job and were aggrieved by his conduct.

22      I will outline the history of the relationship as I understood your account.

23      In 2006 your employer revealed his feelings for you.  At this time you were married to your former husband and your current husband was an employee at the piggery.  You formed a relationship with your current husband in 2007 and left your former husband around this time and although both your former and current husband were aware that you were receiving attention from your employer, neither of these men wanted to intervene.  As I understood the employment chronology sketched by your counsel, you did leave the piggery and obtain other employment twice before returning to the piggery on each occasion.  Neither of these alternative jobs was suitable, principally because travelling to Rochester and Bendigo was too onerous.  Another reason for staying at the piggery, despite the unwanted attention, was the employment of another office worker whose presence you thought would deter unwanted attention.  However, this person left the piggery in 2008 when she became pregnant at which time, as your counsel put it, unreciprocated physical and oral harassment occurred.

24      You instructed your counsel that because you had left your former husband, had four children to support and were the sole breadwinner, you felt impotent to resist your employer’s attention or leave your employment permanently.

25      A psychological report from Carla Lechner was tendered.  She notes that in 2008, you were admitted to the Alexander Bane Centre in Bendigo for three or four days as you felt acutely suicidal in relation to your situation at work.  You received anti-depressants but “regrettably” no psychiatric follow up.  You returned to work for some time before staying with your mother in Ballarat for nine months, after which you returned to the piggery.  You told Ms Lechner that you reluctantly ended up sleeping with your employer on that one occasion.

26      As I followed your counsel, this was in the setting of a falling out with your partner, now husband, with whom you subsequently reconciled, becoming pregnant to him in 2010.  You were married in August 2010 and your son was born in January 2011.

27      Your counsel described your relationship with your employer as fractious and “sometime in 2010” you made it clear you were not interested in him.  You made it clear you never were and never would be.

28      You told Ms Lechner you started stealing at the end of 2011 because “you hated him”.

29      Your counsel conceded that your employer likely saw the relationship quite differently.  Nevertheless, your counsel sought to rely upon your perception of the relationship as part of the explanation for why you committed the thefts.  This issue may have resulted in a factual dispute requiring resolution.  I noted my tentative view, in discussion, that your perceived grievance is unlikely to constitute a significant factor in mitigation.  In the end, your counsel agreed that this issue, concerning the way in which you saw the relationship, was just one factor contributing to the pressure you were under at the time of the offending, which explains why you might not have been thinking clearly and caused you to act out of character.  It was a matter relevant to who you were at the time, why you offended and the prospects of re-offending.

30      Ms Lechner thought you did not present with an inherently dishonest or anti-social disposition.  She thought you had very favourable rehabilitation prospects.  Your history indicated long-standing issues with depression and anxiety pertaining to your work environment.  She diagnosed clinical depression including symptoms of major depression, partly attributable to your current situation, including these proceedings.  She said you expressed regret and shame for your actions and are finding it hard to reconcile your dishonest behaviour with your perception of yourself as basically honest.

31      Ms Lechner considered that you require both medical and psychological treatment.

32      A letter was tendered from your current employer with whom you have worked since December 2012.  You oversee the accounts department.  You are a valued employee and your current employer would like to keep you in your current job.

33      Your husband gave evidence.  He is a diabetic.  He is also legally blind and on a Disability Support Pension.  He gave evidence of the frequency of hypoglycaemic episodes he suffers and the risks to his health or, indeed, life if you were imprisoned.  The primary focus was on the risk of an episode at night.  However, your husband is reliant upon you for a number of things such as driving in case of a medical emergency or reading small print such as writing on medication.

34      Although your husband is the main carer for your young son, a decline in your husband’s health may mean another carer would be required.

35      Your imprisonment would have an adverse effect on family finances and may mean that current mortgage payments could not be made, perhaps putting the family home, a home to four children, at risk, depending on the length of any sentence and the cooperation of the bank

36      Reports from Heathcote Primary Health and the Echuca-Moama Family Medical Practice concerning your husband’s condition were tendered.

37      A letter from your mental health clinician at Loddon Mallee Murray Medical Local was tendered.  You were referred to this centre in March 2014.  The writer noted your current depressive symptoms as well as your remorse.  If imprisoned, I accept that you will experience considerable stress and worry for the welfare of your family and their ability to cope without your support.  Your clinician confirmed your need for ongoing therapy.

38      Three character references were also tendered.  Your concern for others and remorse were emphasised.

39      Your counsel relied upon your early pleas of guilty, producing both utilitarian benefits for the administration of justice, saving time and expense and avoiding the need for witnesses to give evidence, as well as being reflective of remorse.  I accept all this.  The delay or passage of time that has passed since your offending was also emphasised.  I accept that you have been under pressure because of this and the absence of subsequent offending is to your credit.

40      The prosecution emphasised the need for both general and specific deterrence, the breach of trust involved in employee theft which, in your case, was ongoing, persistent, planned and concealed.  It was submitted that your motivation was greed rather than need given much of the spending of stolen money on items such as your house, furniture, a sauna, a treadmill, a boat and a caravan.

41      The proceedings were adjourned on 14 November until dates in December and then further adjourned until 29 January 2015 at the request of your counsel to enable further material to be obtained and evidence called concerning the hardship your husband and family generally might suffer if you were imprisoned.

42      On 29 January 2015, two reports dated 5 and 20 December 2014 were tendered and evidence from the author of the reports Professor Jeffrey Zajac, an endocrinologist was called.

43      The central focus of submissions on 29 January concerned whether exceptional family hardship, should you be imprisoned, had been established.

44      In my view, exceptional circumstances justifying regard to family hardship, should you be imprisoned, have been established.

45      Your counsel relied on a combination of factors to support the submission that exceptional circumstances had been made out.  

46      Central to the submission was your husband’s health

47      As noted earlier your husband suffers labile diabetes.  The control of this condition has been moderately poor.  The fact that your husband has labile diabetes is significant because it tends to be this group (Labile Type 1), a very small percentage of people with diabetes, who have significant hypoglycaemic events.

48      As just noted, on 14 November 2014, your husband gave evidence of suffering episodes of hypoglycaemia.  During the day, when he is awake, he is aware that such an event is about to occur and can take sugar to avoid the episode.  If he is asleep at night and is about to suffer an episode he fidgets or moves and makes noises that wake you, enabling you to assist him.  The frequency of such incidents fluctuates.  He said night episodes “can be a weekly thing”.  Your husband said that he lived by himself for a short period of time before living with you.  Prior to that time, he lived with his mother.  I also note, as advised this morning, that there was a period of some weeks during which you and your husband were separated.  If sleeping alone, your husband does his best to ensure his sugar levels are appropriate before sleep.  Your husband said he believed the frequency of his hypoglycaemic events was increasing and that he had suffered events during the night when he was awoken by you on more than 20 occasions during the last two years.

49      He also provided a history of such incidents to Professor Zajac who said that in a patient like your husband one would expect fairly frequent episodes of “hypoglycaemia and hypoglycaemia unawareness condition”.  That is, episodes occurring without warning symptoms, which was very common in people who have had Type 1 diabetes for 20 years such as your husband.  There may be some disparity between the frequency of hypoglycaemic events attested to by your husband in evidence and his account to Professor Zajac that such events occur once or twice during the week at night.  However, this is not a matter I need to resolve.  I am satisfied that your husband is at risk of suffering relatively frequent hypoglycaemic events at night and the exact number is not crucial.  

50      Once again, as I stated earlier, your husband is legally blind and, as a result of his diabetes, his employment prospects are very limited, given his condition, and likely to further diminish without you.  You are essentially the breadwinner.  At the time of submissions last November there were four children living at home.  The youngest child is four and your husband is the primary carer for that child.  The eldest child, Tania, is 23 and I was told last November that she was keen to undertake a career in real estate which may require her to move.  As I understood the submissions, confirmed this morning, she is now living in Griffith NSW with her boyfriend.

51      Your husband does not drive and the family is dependent on you for transport.  Such transport includes quarterly visits by your husband to his endocrinologist.  If a taxi is needed, he is entitled to assistance but this still costs $150.  Public transport is not readily available and your husband needs to be cautious when crossing major highways.  He requires assistance reading material such as prescription labels.  You usually assist him although, of course, if you were absent, the teenage children might assist.  You also attend to your husband’s intimate health care issues such as nail clipping.  Special care is required for this because of his susceptibility to infection.

52      Professor Zajac noted that even though your husband has significant complications of retinopathy and gastrointestinal symptoms and faces the risk of renal impairment, he may also develop neuropathy and have significant difficulty with dizziness on standing and sensation in his hands and legs.  His vision may worsen.  It is almost certain that he will get some or all of these complications.  No time estimate was provided for the development of these complications but I draw the inference that, at least, his disease generally is unlikely to improve in the future, although his condition could be better managed.  It would be desirable to reduce his blood sugar levels but this step is unlikely to be taken if there is no-one available at night to closely monitor him.  That is, although your husband’s condition could be and, perhaps, should be better managed by driving down his blood sugar levels, that is, in effect, not going to occur in your absence.  Running his levels a bit high worsens complications in the long run but it is preferable to increasing the risk of hypoglycaemic events in your absence.

53      Without you, some measures would be required to ensure that your husband is monitored at night.  Whatever is done, regular checks, a baby monitor, someone present nearby, is likely to be disruptive and less satisfactory than you being beside him.

54      Mr Hutton summarised the enquiries your husband has made recently concerning services that may be available to him.  It was clear that enquiries have been made with many organisations.  It is not clear precisely what resources he will be able to access to cope with whatever flows from you being imprisoned, but the possibilities seem limited.

55      Hypoglycaemic events carry the risk of cerebral damage and even death.  However, the latter is unlikely and the former difficult to estimate.

56      The critical issue concerning family hardship is whether your removal from the home is likely to produce hardship that, in all the circumstances, can be considered exceptional.  In my view it is inevitable that your absence will present a serious level of hardship that flows from your husband’s illness.  His illness prevents him from working and providing financially for the family as well as meeting mortgage repayments to maintain the family home.  He is not able to rely upon either yours or his parents to step into the breach.  His father is deceased and his mother is elderly and suffers diabetes herself.  Your mother lives in Queensland and your father, who has leukaemia, lives in Kyabram.  Your husband’s care and the management of his disease will be much more difficult without you.  Whether he will still have the capacity to care for the youngest child remains to be seen but this will obviously be much more difficult without you.  I consider the circumstances to be clearly distinguishable from the common consequences of the removal of the primary breadwinner and to justify the term exceptional.

57      However, those consequences and the weight to be given to this factor are not such as to avoid the imposition of immediate imprisonment but rather are to be reflected in a lesser term and assist to persuade me that I should impose a partially suspended sentence of imprisonment; one of the alternative outcomes argued for by your counsel.

58      On the single charge of theft, you will be convicted and sentenced to 21 months' imprisonment.

59      All but six months of that sentence will be suspended for a period of 3 years.  If you commit another offence punishable by imprisonment during that period you are likely to have to serve the period of 15 months held in suspension in prison.

60      Had you not pleaded guilty, it is likely that I would have sentenced you to a total effective term of 30 months' imprisonment and required you to serve about 15 months before being eligible for release on parole.

61      Is there anything that I have overlooked or obviously got wrong that counsel can identify?

62      MR JASSAR:  There are eight counts, Your Honour.

63      HIS HONOUR:  I was intending to impose an aggregate sentence, is that not permissible.

64      MR HUTTON:  It's permissible, Your Honour, it's just the way you worded it, we're confused at the Bar table.

65      HIS HONOUR:  I'm sorry.  You are right.  On the eight charges of theft, you will be convicted on each charge and sentenced to an aggregate term of 21 months' imprisonment.

66      MR HUTTON:  As Your Honour pleases.

67      HIS HONOUR:  Does that now make sense?

68      MR HUTTON:  Perfect sense, Your Honour, yes.

69      MR JASSAR:  Thank you.  As the court pleases.

70      HIS HONOUR:  Do you want to speak to your client before she is taken away?

71      MR HUTTON:  I might briefly, Your Honour, thank you. 

72      HIS HONOUR:  Mr Hutton, before you leave, I was proposing to provide the report prepared by Carla Lechner to the prison authorities, is there any objection to that?

73      MR HUTTON:  There's no objection to that, Your Honour.  I'm not getting a response from my client, Your Honour, I'm not sure that she's well.  If Your Honour will give me two minutes to remain at the dock.

74      HIS HONOUR:  Of course.

75      MR HUTTON:  Your Honour can see, she appears to be in some distress.

76      HIS HONOUR:  She's clearly extremely distressed, so I think a medical practitioner should be arranged without delay to check her condition.

77      MR HUTTON:  Yes, Your Honour.

78      HIS HONOUR:  Mr Hutton, I'll leave the Bench but I will remain here unless there's something I need to do.

79      MR HUTTON:  Yes, Your Honour, thank you.

80      HIS HONOUR:  I'll be immediately outside.

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