The Queen v Branch
[2022] VCC 742
•23 May 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-21-02254
| THE QUEEN |
| v |
| JACOB BRANCH |
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JUDGE: | Her Honour Judge Syme | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 23 May 2022 | |
DATE OF SENTENCE: | 23 May 2022 | |
CASE MAY BE CITED AS: | The Queen v Branch | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 742 | |
REASONS FOR SENTENCE
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Catchwords: Misconduct in public office – obtaining financial advantage by deception – egregious breaches of trust – significant planning - firearms offences – early plea of guilty – remorse – pleading to the inevitable – limitations of psychological report – no causal connection between Verdins principles and offending – report devoid of reasoning.
Legislation cited: Crimes Act 1958 (Vic); Firearms Act 1996 (Vic).
Sentence: 4 years and 10 months imprisonment. Non-parole period of 2 years and 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr. Matthew Cookson | Mr. Shane Kenna |
| For the Accused | Mr. Bradley Hardisty | Mr. Andrew Madden |
HER HONOUR:
Background
1 Mr Branch, you have pleaded guilty to a very large number of offences. They are included in the prosecution opening and I will, at this stage of the proceedings, summarise them to some extent.
2 You have pleaded guilty to one count of misconduct in public office for which the maximum penalty is 10 years imprisonment. That offence occurred between 8 January 2018 and 21 March 2019.
3 I note, for the record, that at the time of committing that offence, you were on an existing Community Corrections Order which you were placed on in November 2017 for 18 months. It is not included as a breaching indication.
4 You have pleaded guilty to an additional eight counts of attempting to obtain financial advantage by deception. The maximum penalty for each offence is five years imprisonment. Attempts were made to commit these offences between November 2018 and much later in 2019.
5 You have also pleaded guilty to 24 counts of obtaining financial advantage by deception, for which the maximum penalty is 10 years imprisonment. Again, these offences were committed over an extended period, leading up to February 2020.
6 You have further pleaded guilty to two counts of theft. The maximum penalty is 10 years imprisonment for each count.
7 You have additionally pleaded guilty to three counts of possession of a drug of dependence. Concerning cannabis, the maximum penalty is five penalty units. In relation to the substances other than cannabis, the maximum penalty is five years imprisonment or 400 penalty units.
8 You have further pleaded guilty to one count of prohibited person using a firearm for which the maximum penalty is 10 years imprisonment or 1,200 penalty units.
9 You have also pleaded guilty to two counts of prohibited person being in possession of a firearm for which the maximum penalty is 10 years imprisonment and/or 1,200 penalty units.
10 You have additionally pleaded guilty to two counts of being a prohibited person in possession of a silencer for which the maximum penalty is eight years imprisonment and/or 480 penalty units.
11 You have further pleaded guilty to one count of possession of a Category A or B long arm firearm for which the maximum penalty is 12 months imprisonment. You have also pleaded guilty to one count of permitting an unauthorised person to use a firearm for which the maximum penalty is eight years imprisonment. Lastly, you have pleaded guilty to one count of negligently deal with proceeds of crime for which the maximum penalty is five years imprisonment.
12 You have admitted minor entries on your criminal record which include the contravention of a family violence order and the possession of a drug of dependence. Those matters were dealt with in October 2017. There were further contraventions of family violence orders and related matters dealt with in November 2017, when you were placed on a Community Corrections Order for 18 months with conditions that required you to attend for treatment and assessment as directed. Both matters were dealt with without conviction. No doubt, considering your then lack of prior criminal record.
13 The breach of the November Community Corrections Order forms part of the current matrix of offending before the court today. Those matters committed during the currency of the previous Community Corrections Order represent an aggravation of the circumstances of that offending. This includes a number of the obtain financial advantage by deception offences and, of course, the misconduct offences which are intricately related with the number of those offences.
14 In addition to the fact that some of these offences were committed shortly after you were placed on the Community Corrections Order, you have breached undertakings in the past. This gives the court caution with respect to accepting undertakings by you in the future.
15 The facts relevant to the offences are set out in the prosecution opening and are not in dispute. Although perhaps, not accurate as to a number of dates, assuming, as I do, that the most recent affidavit is correct. I also observe, because it has become part of the matrix of my fact-finding exercise, that the information provided in Mr McKinnon's report appears to be flawed. This is said with respect to the dates and sequences of your behaviour and offending during that period of time.
16 I accept, looking at historical matters, that on the information I currently have, you were employed by AMP for four years after you completed your commerce degree. You were employed with them until about 2012 when you and a partner started your own business which was termed Sovereign Wealth Funds. Apparently, that business did not fail as suggested by the prosecution in the opening.
17 Taking the information on other sources I now have, it looks like your share was sold to your partner in, or about, late 2016. As far as I can tell from the information that I have available to me, Sovereign Wealth Funds provided advice to its client on matters of superannuation, retirement and estate planning and similar wealth management concerns.
18 I observe, from information provided by you, that from the end of 2016, your marriage was failing. At the same time, you increased your drug use and commenced using the drug ice. You detail in your affidavit, a number of events in your personal life, which related to that. I will refer to this later.
Circumstances of offending
19 Your offending was uncovered by chance in March 2019, when you crashed your motorcycle in Ballarat. Police arrived at the scene to find you collecting a large bag from the road which contained a quantity of methamphetamine and a large amount of identification information. You also had, in your possession, items of mail from a number of persons which were not you. You made no admissions at the time and when speaking to police, you made up an excuse as to the possession of those identity documents.
20 To put the offending in context, between 8 January 2018 and 21 March 2019, you were employed by VicRoads at the Ballarat call-centre. Your employment was terminated on 21 March 2019. There is no information as to why your employment was terminated.
21 During your employment, you were bound by, and reminded frequently of, various codes of conduct which state that privacy of records must be maintained; that VicRoads systems are only to be used for business purposes; that records of family, friends and associates must not be accessed or disclosed without authorisation.
22 Contrary to that instruction and code of conduct, you photographed identification information pertaining to a number of people referred to in the prosecution opening. Many of them became victims of your criminal activity in one way or another and their photographs were uploaded to your Apple iCloud account. None of the interactions were justified by any professional activities you were required to perform and it is this act of photographing and uploading information that relates to Charge 1, misconduct in public office.
23 I now refer to a number of obtain financial advantage by deception counts and I will refer to them in the order that they were referred to in the Crown opening. That is, by summary of the offending behaviour relating to particular victims.
24 In relation to Beverly Mannix, on 7 November 2018, while still employed by VicRoads, you used Mannix's details to apply for a Bunnings PowerPass account. The account option was for $5,000.00 in credit. That application was not granted.
25 Secondly, between 11 and 14 February 2019, you successfully used David Lord’s credit card details to purchase a Red Balloon voucher valued at $300.00. This relates to Charge 4 alongside the purchase of $249.00 worth of tickets and vouchers from Regent Cinema in Ballarat relating to charge 6. You also attempted to purchase an Apple iPad, a Sony PlayStation and a Samsung Galaxy tablet valued, in total, at $841.00 from the Harvey Norman website. This purchase was rejected and relates to charge 5.
26 Thirdly, during February 2017, Paul Burton consulted you in your capacity as a financial adviser. I note that this date is significantly after you had ceased the business partnership with another. However, on the information before me, in any event, you were granted authority to make inquiries in relation to Burton's CBUS superannuation account.
27 On 12 March 2019, you contacted CBUS Superannuation purporting to be Mr Burton and changed a number of details, including the email address and physical address relating to that account, inserting an address at Tarawa Drive, Ballarat North instead.
28 On 24 March, you submitted a paper-based withdrawal request to CBUS Superannuation attaching Burton's National Australia Bank bank card, Medicare card, water account, birth certificate, Centrelink documentation and ING bank account. Some of these had been fraudulently altered to list a new address at Ballarat North. Four days later, you changed Burton's mobile number and email address details.
29 On 9 April, CBUS contacted you to provide further information in relation to the withdrawal request and you provided this information. On 9 May 2019, you made two withdrawals from Burton's superannuation account, successfully withdrawing $18,000.00. I have received and read the victim impact statement provided by Mr Burton who is still out of pocket for that amount. While the statement provided by him does not support a finding of aggravating circumstances, it does, however, remind the court of the significant consequences, financial and emotional, of fraud offences such as these.
30 The next victim was Angela Sureda. On 6 July 2019, you used Sureda's details to apply for a $10,000.00 personal loan with Latitude Finance. This relates to charge 10. A few weeks later, you used the same details to apply for a $1,400.00 personal loan from Cash Train (charge 11); a $1,056.00 personal loan from Money3 (charge 12) and a $2,450.00 personal loan from Nimble (charge 13). These were attempts to obtain financial advantage by deception. Your applications were each completed online and ultimately rejected.
31 I now turn to the offending against Kevin Shellard. During 2016, according to the prosecution facts, while you were a self-employed accountant, you assisted Kevin Shellard in completing an annual tax return. I note this may or may not be after you ceased in partnership with your former partner, but it is hard to tell.
32 In any event, you seem to agree that you assisted Kevin Shellard in completing his annual tax return. Between 11 September 2019 and 19 September 2019, some three years later, you attempted to make a withdrawal of $60,000.00 from Shellard's AMP superannuation account using a false email address and phone number on the form.
33 You attached Shellard's Victorian driver's licence, his 2018 tax return and the bank details of an ING Orange Everyday account which had been created by you unbeknownst to Shellard. AMP called Shellard's wife and the fraudulent request was detected on 19 September 2019. As a result, the attempted withdrawal was unsuccessful. This relates to charge 14, another attempt to obtain financial advantage by deception.
34 On 9 November 2019, you created a fraudulent ME Bank account in Shellard's name and this relates to charge 17. On 14 November 2019, you made an attempt to withdraw $40,000.00 from his Colonial First superannuation account. This attempted withdrawal was unsuccessful (charge 18). Later inquiries revealed that Shellard’s mailing details had been altered at VicRoads.
35 I turn now to the offending against Robert Buck. On 4 January 2020, you created three fraudulent Suncorp accounts in Buck's name. Between 4 and 19 January 2020, funds were transferred into and out of these accounts. This relates to charge 19. It was not suggested that the funds were sourced from Buck.
36 On 4 February 2020, you also created two fraudulent accounts in Buck's name and between 4 February 2020 and 17 March 2020, a total of $14,062.00 was transferred into that account and $13,965.00 was transferred out of it. Again, it is not suggested that the funds were sourced from Buck.
37 The next offending is in relation to Debbie Devereux. On 13 January 2020, you created a fraudulent Up Bank account in Devereux's name. Between 13 January 2020 and 5 April 2020, over $23,000.00 was transferred into that account and $23,000.00 was transferred out of it (charge 22).
38 On 22 January 2020, you created two bank accounts in Devereux's name and both accounts were linked to the same bank card. Between 17 February 2020 and 18 March 2020, you deposited a total of $21,909.00 into that account and $21,802.00 was transferred from it (charge 23).
39 On 6 February 2020, you created a further fraudulent bank account in Devereux's name and between 17 February 2020 and 22 February the same year, you transferred a total of $2,510.00 into the account and $2,500.00 from it (charge 30). On 22 February, you created a further fraudulent bank account in Devereux's name. It is not suggested that any of the funds transferred were sourced from Devereux.
40 Next, the offending in against Ian Sewell. Mr Sewell resides directly opposite your parent's address. On 2 February 2020, you created a fraudulent Up Bank account in his name. Between 2 February 2020 and 23 March 2020, a total of $51,996.00 was transferred into the account and $51,960.00 was transferred out of it (charge 24).
41 On 4 February 2020, you created a fraudulent National Australia Bank account, again, in Sewell's name. Between 12 and 19 February 2020, over $80,000.00 was deposited into the account and over $67,000.00 was transferred out of it (charge 26).
42 On 6 February 2020, you created a fraudulent Citibank account in Sewell's name, and this is Sewell account number 3. Between 17 February 2020 and 25 March 2020, a total of $33,217.00 was deposited into the account and $33,210.00 was transferred out of it (charge 28).
43 On 6 February, you created a further fraudulent bank account in Sewell's name and between 7 February 2020 and 24 March 2020, a total of $5,528.00 was deposited into this account and $5,502.00 was transferred out of it (charge 29). On 11 February 2020, you created a further fraudulent National Australia Bank account in Sewell's name and on 20 February, over $32,000.00 was transferred into the account before $10,000.00 was transferred out of it (charge 31).
44 On 12 February 2020, you created a fraudulent Commonwealth Bank account in Sewell's name and between 12 and 20 February, a total of $69,000.00 was deposited into the account and $2,225.00 was transferred out of it.
45 On 12 February, you created a further fraudulent Commonwealth Bank account in Sewell's name and between the 12 and 18 February, a total of $2,300.00 was transferred into that account and $100.00 was transferred out of it. On around 11 February 2020, you complied and submitted a withdrawal request to Australian Super, falsely purporting to be Sewell. A request was made to withdraw $65,000.00 from Sewell's superannuation into one of the false accounts that you had previously opened.
46 The application attached Sewell's driver's licence which had been fraudulently altered to display a residential address different to his own. The certified copy of the driver's licence and a false rates notice was falsely stamped as accurate by police officer Senior Constable Kay Mark with a police number attached to it. That officer does not exist.
47 On 18 February 2020, $65,000.00 was successfully paid by Australian Super into Sewell account number 2 (charge 34). The account it was transferred to was an account that you had sole access to because of the previous openings I referred to.
48 The next group of offences relate to a number of withdrawals and a lot of them concern related summary matters. Between 17 and 18 March 2020, you withdrew the sum of $7,800.00 from five ATMs in Ballarat, Dunolly and Maryborough. These amounts were withdrawn from accounts fraudulently created by you in the names of Devereaux, Buck, Sewell and Campbell (charges 37, 38, 39, 40 and 41). These events also relate to the summary matters of committing those offences whilst on bail and these are summary charges 51 to 57, 59 and 61.
49 These matters were discovered sometime later. As I noted above, on 19 March 2020, police attended at an intersection in Ballarat. You had dropped a large, coloured bag from your motorcycle, and you were collecting the contents from the centre of the road. A blue Kawasaki motorcycle was on the footpath, however, the plates were not recorded in VicRoads and a VIN check revealed that the motorcycle had a cancelled registration. There is no further information about that.
50 At that time, police observed that you had dropped a small Ziploc bag on the ground which contained methamphetamine (charge 44). This also amounted to the offence of committing an indictable offence whilst on bail.
51 You were searched and items were located in your backpack and on your person, including three VicRoads licences in the names of Buck and Devereux and Larkin. Police also found Up Bank cards in the names of Cooper and Thefelos; a Commonwealth bank card in the name of Page; a Victorian driver's licence; six bank cards in the name of Ian Sewell; two full-face balaclavas; a Ziploc bag containing green vegetable matter (charge 43); and 32 items of mail belonging to 18 different people located, all in your backpack. The items of mail bore postage stamps between 4 and 15 March 2020. These items were mail stolen from mailboxes of those persons (charge 41) and also reflect the related summary offences of committing indictable offences whilst on bail.
52 Also located was $5,918.00 in cash, a related summary offence of property reasonably suspected of being proceeds of crime. Police additionally located an ASP baton, a flick knife and gloves (summary offences 7, 8 and 9). They further located a black wallet containing seven bank cards in various names and seven withdrawal receipts from various ATMs alongside blue purse containing cards in the name of
Kirsten Lee. You were cautioned and questioned. You made no admissions but told some lies about being employed and assisting Sewell and Devereux yet declined a formal recorded interview.
53 On 15 October 2020, police were made aware that a storage space was set up in the name of Nathan Branch, your brother, and that it was paid for by you. Ultimately, the storage container was found to contain mail addressed to Shellard and financial paperwork in the name of Kevin Shellard; VicRoads address update paperwork in the name of Buck; VicRoads address update paperwork in the name of Devereux; and a black satchel containing numerous stolen cards, including bank cards.
54 Medicare cards, health care cards, marine licences, Working With Children cards, taxi driver IDs and other cards belonging to 30 people were also found alongside a silver metal box containing stolen mail bearing the names of numerous victims. Some of the mail was sorted into manila folders with notes indicating current bank balances, shareholdings, phone numbers and other details.
55 Eight of the persons whose information was contained within the box confirmed that their mail was stolen (charge 25). Also found in the storage container were two expendable batons; a spring-loaded dagger; a bundle of stolen licences, bank cards and membership cards in the name of one Peter Barry; and numerous documents in the name of a John Russet.
56 On 20 October 2020, you were arrested at Maryborough. A search was conducted with the consent of your parents and the following items were located there - a push knife; three further extendable batons; a learner's permit in the name of Courtney Zaokta (charge 44 and the related summary matter); and further cannabis (charge 45 and related summary matter).
57 Next, I note an Apple iPhone in your possession was accessed with your cooperation. The relevant contents on that phone were as follows - a video saved on 29 September 2019 showing you in possession of a Savage MK2 bolt action rifle with a silencer attached (charges 15 and 16); a photo saved on 7 January 2020 of the same rifle with the silencer attached (charges 20 and 21); and other indicia of your collection of various identification information taken by you during your employment at VicRoads.
58 Your iPad was located and contained the following relevant material - messages relating to the Vault Self Storage site; scanned copies of victim ID documents relating to the above; and pre-populated passwords to various emails utilised in the financial offending. There was also a video of you firing a handgun, being a cut down rifle, on 15 May 2019, and this apparently occurred in bushland, together with a video of your ex-partner firing the same handgun on the same date (charges 8 and 9).
59 Further videos and photographs of the same rifle were located and they were dated 29 September 2019 and 7 January 2020. A further video was located in which your ex-partner, Kirsten Lee, fired the Savage MK2 rifle with the silencer attached while you gave instructions. That video was dated 9 January 2019 (charge 3).
60 A laptop was located in the shed of the premises which contained scanned copies of victim ID documents and a plastic tub with your personal information and personal information of seven other people. You were formally interviewed and made no admissions other than that you had the weapons for your own protection and the cannabis was not for your use, but for your disabled brother, Nathan. You said the firearm was not a real gun but a prop for a movie. Further inquiries revealed the location of the bolt action rifle, the same rifle used in the videos, and that it had been given to another person by you for safekeeping.
Gravity of the offending
61 I now turn to an assessment of the objective gravity of the offending as a whole. Firstly, matters that make the offending more serious.
62 For a number of these offences, you were on, as I have observed, a supervised Community Corrections Order and one of the conditions of that were that you not commit offences. That Community Corrections Order expired in May 2019.
63 Your breach of that undertaking, even in the lack of separate charges for the same sort of offending, indicate to the court that your prior failure to observe such an undertaking makes the acceptance of accepting it again, much riskier.
64 The fact that a breach of trust exists for most of the offences you have committed is a serious aggravating circumstance. The breach concerning the offending against Paul Burton not only shows a gross breach but offending over a significant period of time with a significant degree of planning. You obtained, and then retained, his personal details in or about February 2017 and you removed money from his superannuation account some three years later. There is no explanation, even in the current circumstances, why you retained that information for that period.
65 The breach of trust with your neighbour, Ian Sewell, is of a similar egregious nature. There is little information as to how you obtained the details which enabled you to take the significant funds that you did. The breach of trust in relation to the customers of VicRoads is obvious and reflects a significant degree of planning.
66 It seems that after your departure from SWF, you either retained some documentation from clients or accessed these details much later for your own purposes. I make a finding that planning commenced for some of these offences much earlier than 2017. There is no satisfactory information as to the use of the funds that you removed. I do note, that on a number of occasions, you opened accounts but did not remove funds from the fictitious account holders. I do not know what was planned for the future and I do not propose to speculate.
67 In relation to the money that you did take, there is no information as to the use of those funds other than that it was used for personal extravagances. Thus, I can only assume that greed was your motive.
68 Again, the most important aggravating feature of the financial offences was the degree of planning involved. It was long term, systematic and detailed at every step. The firearms offences are also separately serious. The observation that the firearms involved operational firearms in combination with silencers is of significant concern to the community. The addition of a silencer suggests covert intention for the firearms. There is no explanation otherwise.
69 An aggravating feature of some of the offences is that, at the time, you were subject to a family violence order and were thus prohibited from having such items in your possession. The giving of the items to an acquaintance for safekeeping was not in accordance with that prohibition as those firearms were freely given up when and if you asked. The permission, and apparent encouragement to another to use such items, is also particularly dangerous to the community. The community rightly has a significant concern about the use of firearms and that is why the maximum penalties, in such circumstances, are so high.
70 No explanation has been given for your involvement in such activity. The possession of firearms and the use of firearms in such circumstances are separate from the financial offending. It requires the court to have an eye to both specific and general deterrence and to be dealt with as a separate feature to the financial offending which amount to serious offences in and of themselves.
Plea of guilty
71 I now turn to a consideration of mitigating circumstances. First of all, your plea of guilty. It is acknowledged that you pleaded guilty at the first available opportunity once all information was put before the court. You will receive a significant discount because of the benefit to the administration of justice that an early plea confers in a complicated set of offending.
72 By the time police located a number of identity documents in your possession, your crimes were capable of being investigated and proven. Therefore, to some extent, your plea is an acknowledgement of the inevitable. However, the breadth of the offending and the number of charges is significant.
73 Your pleas are still, therefore, a valuable indication of your desire to facilitate the course of justice and are of considerable utilitarian value. Much time, expense and investigation has been saved by your admission of guilt. You will be entitled, as I have said, to a significant discount including the Worboyes discount, which recognises the difficulties of the current times.
Remorse
74 A plea of guilty is sometimes also an indication of remorse and I accept it is, subject to what I have said above. The psychologist who prepared a report, which I will refer to later, observes that you have expressed remorse to him. The quotation he included in the report acknowledges an acceptance by you of your abandonment of your morals and values during the time of your offending. The expression, however, to my reading, also shows a degree of self-pity in that you were missing, during the course of your previous incarceration, the comfort of your family.
75 Your most recent affidavit, however, notes an understanding, to some extent, of your moral culpability by acknowledging your extravagance and your offending. Your acceptance that compensation will have to be given is an acceptance of your responsibility. I note that you received a victim’s compensation payment, I am told, of something in the nature of $20,000.00 in 2017 and I assume that was in relation to the home invasion. I have no information as to the disposition of those funds. I now refer to your personal circumstances and background.
Personal circumstances
76 Having sought further information in relation to your personal circumstances, I am now in possession of your affidavit dated 11 March 2022. The contents give a better sense to the timeline of events. You indicate in that affidavit that you were the subject of a violent home invasion in January 2017, presumably after separating from your family. There is no indication that that home invasion was related in any way to the current or subsequent offending.
77 I note that the injuries you suffered during that home invasion were significant. You attest that the event left you physically and emotionally scarred. I am told that you gave evidence against your attacker which has apparently left you vulnerable to reprisal in custody. I understand that your attacker is, or was in custody, as a result of his attack on you. Some concern was expressed for your welfare while you were in custody and it seems that this has given you some relief by being granted bail in the short term. It is a matter that will be taken into account.
78 In relation to your plea of guilty, again, it is the case that your personal circumstances and background are largely contained in the report from Mr McKinnon. The psychologist, at the commencement of his report, acknowledged the relevance of the practice note for its preparation; he accepted that the statements of opinions that he would give were to be based on the facts as observed or reported and that he needed to provide reasons for such conclusions.
79 While the psychologist appears to have faith in his report of what you told him, he did not give any form of reasoning for the conclusion contained in the summary, either for the conclusion as to the cause of the offending and/or for his further opinion that you had made significant rehabilitative progress since 2020 when you were first arrested. There is no information the psychologist sought confirmatory information from treating professionals before making this or any other observation, including a later recommendation that you should continue your current therapy. He did not even note what that was.
80 The report is further compromised, in my view, by the inconsistency in the dates of certain events concerning the preparation of your offending, some of which I observe was apparently undertaken in 2016. There is also the matter of the psychologist's opinion that the offending was related primarily to the assault on you in 2017. There is no explanation for this connection.
81 The information provided by you in that report and submissions from counsel are as follows. At the time of the offending, you were aged between 32 and 34 years of age. Again, I observe that the information gained by you prior to that date was used in the commission of some of these offences.
82 It was submitted by your counsel that you were engaged in mental health assistance in 2016 as a result of experiencing a breakdown of your marriage and mental health issues arising from, according to his submissions, immense stress while attempting to support your business prior to it failing. It is observed, however, that you left this business well prior to 2016.
83 Your general practitioner, Dr Sutherland, indicated that you were fit for work in 2017 after treatment for the consequences of the assault which occurred in early 2017. However, you were clearly using ice in significant quantities at that time and later. I observe that this inconsistency arose during the plea hearing. I also observe that the more recent report from Dr Sutherland does not clarify his previous opinion. However, it indicates that you have undertaken some psychological counselling and urinalysis since your release from custody in December of last year.
84 I acknowledge that you come from a very supportive background. You have strong ties to your immediate family and they now provide accommodation. Your father is in court with you today, again providing support. It is, to a very large extent, your family support that leads me to find that you have good prospects of rehabilitation.
85 It is reported that you and your wife separated in or about May 2016 and it is reported that you are apparently managing to co-parent your children in a manner satisfactory to both of you. Your children are now aged eight and five years. I am told that you have been supporting your disabled brother and that you have obtained a carer's pension in order to do so.
86 Your counsel submitted that your use of methamphetamine began to escalate after your wife left and your business started to fail. It was further submitted that, following the assault in early 2017, your substance abuse escalated to a daily habit. I note this occurred after your separation with your wife. However, Dr Sutherland's October 2017 report contradicts this submission.
87 You reported to your psychologist that by the time of the financial offending, which you stated was between 2019-2020, you had a daily ice habit. Your counsel submits that as at the date of the plea hearing - the first one, March of this year - you were again abstinent from substances.
88 Some evidence has now been provided and it is accepted, at face value, that you are currently abstinent from substances which is something Corrective Services will, no doubt, need to know the truth of. It is clear that you have suffered with substance abuse issues for a number of years. That being said, the extent and apparent connection between your life events and your addiction is not clear to me.
89 On one version of events, you commenced using methamphetamines prior to May 2014 while you were allegedly working long hours in your business. I accept that you may have sought assistance for this and other issues in 2016 from a medical practitioner.
90 It seems that the home invasion occurred in early 2017 and I am told, looking at the report from Dr Sutherland, that as of October 2017, you returned drug screens which were negative for alcohol or illicit substances. This gives justified concern to the Crown observation made a little while ago in relation to whether the urinalysis screens have been properly conducted or not.
91 It would appear that either your self-report to Dr Sutherland and/or the negative drug screens were inaccurate and/or you commenced using substances again in 2018 once you commenced working at VicRoads. I do not know which of these options is accurate. On another version of events, your use of substances escalated after you and your wife separated in 2016 and became daily habit in 2017 either before or after the home invasion occurred.
92 I note your criminal record includes entries for family violence matters and possession of drugs in or about July 2017. That is when you were charged. A few months later, Dr Sutherland provided the health report and you commenced work at VicRoads.
93 It is noted that when the offences were committed, you were under the supervision of the Department of Corrections. That order required you to attend for various treatments, including, for substance abuse. Now, the current report that I have is largely positive on your involvement with supervision but it seems to ignore the fact that during the period of supervision, a number of these offences were committed and according to other reports, you were still using substances notwithstanding the fact that you were under supervision and apparently attending substance abuse programs. Again, there is another disconnect in the factual matrix that I have before me.
94 The sequence of events, that is, the apparent inaccuracy in reporting to or by
Dr Sutherland concerning the commission of offences while you were on a supervised Community Corrections Order, gives concern that you have been selective in your self-reports. Considering your past history and failure to moderate your substance abuse, this is a matter that must be monitored very closely in future on your release from custody.
95 I would ultimately recommend that probation and parole or Corrective Services consider drug treatment programs or relapse prevention programs while you are in custody and further relapse prevention programs on your release. I accept that it is likely that when you were in custody up until December of last year, you were not using substances and that timing may have cleared your head.
96 However, it would be wrong to assume that you are rehabilitated from that particular issue. I say this after observing the number of years that you were using substances during the course of your offending and the relatively short period of time that you have been in the community not using substances as opposed to in custody not using substances.
97 I am concerned that the psychologist report observes that, and I quote, - ‘[you] have made significant rehabilitative progress since 2020’. I assume by that observation that he means that you have made significant rehabilitative progress while you were in custody. There is no indication of what evidence he has used to draw this conclusion other than your reported abstinence while you were in custody and that is significantly and qualitatively different from making rehabilitative progress.
98 The fact that you did not commit offences while in custody is simply an observation of the obvious. However, the psychologist then goes on to note that he does not believe you ought be directed to do community work which might bring you into contact with other criminals. Notwithstanding that, and without any reasoning whatsoever, the psychologist reaches the conclusion that you do not need any additional help in order to continue making rehabilitative progress and that your likelihood of reoffending is very low.
99 The extended Community Corrections report notes several areas where your risk of reoffending is towards the high side and it makes several sensible recommendations of targeted programs in that regard. However, I note, the report does not recommend substance abuse rehabilitation or any programs to address your past. Significantly, the risk of reoffending profile in the extended Department of Justice report is quite different from the cursory risk of reoffending obtained in your own psychologist report.
100 The psychologist has reasoned that your risk of offending is low because you did not use substances nor commit offences while you were in custody; during the reported two or three month period prior to the preparation of his report; and after your release from custody in December last year. The weight given to such a conclusion using such reasoning must be minimal. The psychologist makes no reflection or reference to the firearms offences in his report.
Moral culpability
101 I have been addressed on the issue of moral culpability and, therefore, must address it. In R v Verdins, the Court of Appeal identified six ways that mental impairment may be relevant to sentencing. It is submitted, based on the report of psychologist Mr McKinnon, that your offending is causally related to your mental health presentation and that prison would be more onerous for you than some others due to your mental health difficulties.
102 If an impairment existed at the time of the offending, there must be a realistic connection between the two in that the impairment must have caused or contributed to the offending behaviour. I accept that your current mental health diagnosis is a cause of some concern and I will take this into account.
It was also submitted that Verdins considerations affected your moral culpability for the offending. The first consideration is whether it is appropriate to punish you as harshly as somebody who is fully responsible. As I have observed, evidence is required to make this finding. The observations contained in several paragraphs of the psychologist's report are sadly devoid of any reasoning whatsoever. The report fails to explain any connection between what is, as I have found, the serious and well organised financial offending and your complex post-traumatic diagnosis.
104 In addition, there is no connection suggested between your apparent fascination and showing off with firearms and anything to do with the diagnostic observations. There is no evidence that your ability to exercise appropriate judgment, make calm and rational choices, think clearly and/or appreciate the wrongfulness of your conduct was affected in any way by your post-traumatic stress disorder or otherwise. Put another way, there is no reasoning or evidence to show that your post-traumatic stress disorder (or otherwise) causally contributed to the commission of the offences.
105 It may be the case that there is a connection between the financial and firearms offending and any post-traumatic stress disorder presentation but no explanation is present. It might be that the post-traumatic stress disorder is related to the substance abuse and that is a possibility, but nowhere is it suggested that the firearms and financial offences are connected with the substance abuse. There is no suggestion that the substance abuse is connected in any way with any other criminal elements. The psychologist's and doctor's reports refer to substance abuse as a standalone issue. You say that you spent money obtained by the financial offending on extravagances without further explanation.
106 The court cannot guess any connection in the absence of evidence. The chronology now provided by you sets out that the attack on you in 2017 was significant. I accept that. The provision of a disability support pension to you was, I am told, due to your post-traumatic stress disorder diagnosis. The only report I have noted is that such a diagnosis indicated you were not fit for work. I observe that that recommendation must have been altered in 2018 when you commenced work at VicRoads, courtesy of the report by Dr Sutherland.
107 In the final pages of Mr McKinnon’s psychological report, it again maintained, without reasoning, that your enduring personality changed because of your complex post-traumatic stress disorder and that this disorder, along with your polysubstance abuse disorder, contributed to your offending between 2018 and 2019.
108 As I have observed several times now, Mr McKinnon gives no reasoning for this opinion and as I have also observed, he appears to have the timeline of your offending and your substance abuse completely wrong. He observes, in the context of the triggering factors commencing in 2016, that you returned to substance abuse. This observation ignores the fact that you were significantly using substances prior to that event. The home invasion occurred in early 2017, after the separation from your wife and well after the sale of your business and your increase in drug use.
109 As I checked with counsel earlier today, the chronology taken from all of the information that I have seems to indicate that during 2014, you were working in the financial business and some details of your clients were retained. Between
2015 and 2016, you ceased working in the financial business or ceased work in other ways and your substance abuse either commenced or continued.
110 In 2016, you separated from your wife, intervention orders were made and the substance abuse continued. In early 2017, the home invasion occurred. In 2017, subsequent to the home invasion, you displayed significant symptoms of post-traumatic stress disorder and your substance abuse was apparently addressed satisfactorily in mid-2017.
111 In 2018, you were found fit for work and commenced work at VicRoads. You commenced illegally accessing your client details at that time and I am told your substance abuse either recommenced or continued. Between 2019 and 2020, the commission of most of the fraud and withdrawal offences occurred, although, as I have observed, planning commenced well prior to that. Between 2019 and 2020, the firearms offences were committed or continuing.
112 As I have observed, there is no reasoning contained in any report or submission as to why the financial offending or the attempts or the firearms offences are related to the post-traumatic stress disorder which I accept was most likely a consequence of the 2017 home invasion. I also observe that most of the offences utilising information obtained from VicRoads was unsuccessful and that you were not successful in removing funds from those people.
113 There is little information as to what you were seeking to do with the money you were trying to obtain. There is little information as to what you were seeking to do by opening fraudulent accounts in all of those people's names. Most of the successful frauds were related to information obtained from others, including former clients and your neighbour.
Current presentation
114 In relation to your current presentation, I note you were released from custody in December 2021. The psychologist's report was prepared after that date. I have already noted the discrepancies in your self-report to the psychologist relating to substance abuse and other matters. The psychologist assesses your functional intelligence and cognitive functioning within normal range.
115 However, he assessed on discussion with you, that you were suffering from complex post-traumatic stress disorder at a moderate level. He observed that this type of post-traumatic stress disorder is usually a consequence of multiple developmental traumas rather than one acute event. The explanation for his observations as above and his diagnosis was not given notwithstanding this apparent contradiction.
116 You present with symptoms including a hostile and distrustful attitude, enduring feelings of feeling on edge in general. The psychologist reports that you have a paranoid outlook on your surroundings. Notwithstanding this observation, he suggests that these features have ameliorated significantly since you were released from custody. Notwithstanding the fact that he prepared his report only two or three months after that time.
117 He further reports that, prior to the 2016 events, by which I assume he means the separation from your wife and the home invasion, you had, he says, a very impressive record of applying yourself to academic, sporting and vocational endeavours. This observation selectively ignores the substance abuse which is reported to have commenced around about 2014 to 2016.
118 The psychologist's observations that your criminal matters did not commence until 31 years of age and after you were seriously assaulted ignores the fact that your substance abuse was evidence of criminality prior to that time as were, of course, the breaches of the family violence orders. It is further observed that the retention of your client's details occurred between 2014 and 2015. I do not propose to take that into account when assessing the objective seriousness given the explanation given by your counsel today.
119 Finally, the psychologist reported that you suggest you are not well enough to work full-time in any capacity and that you fear your high-level career in the financial sector may be lost. I would suggest, sir, as a result of the commission of these offences, you ought not be permitted to be employed in any part of the financial sector or in any other form of employment wherein you might have access to other personal and private financial information. The commission of these offences will disentitle you from such activity in the future. In your most recent affidavit, you sensibly suggest that the construction industry may be a suitable form of employment in the short to medium term.
120 In summary, the report provided by your psychologist suggests that you currently appear to be able to comply with any reasonable obligation that may be attached to an order. But as I have observed, he suggests that you not do community service work as you might mix with criminals. I am not sure whether the others doing such work may be the perceived danger to you or from you. Your psychologist suggests that you would benefit from your continuing counselling sessions with your psychologist, but your psychologist, I note, prepared this report shortly after your release from custody and did not bother to contact the person who was attending to you in that regard.
121 This is another failing of the psychologist's report. Further, the psychologist suggests that you should maintain your psychopharmacological treatment under the care of Dr Sutherland. I note from Dr Sutherland's most recent report that you have been prescribed Valium and an antidepressant, Zoloft. However, I have no information that he has taken any further advice as to the prescription of these drugs for you.
122 I also note that the psychologist expresses concern that due to your paranoid tendencies you ought not be directed to participate in any group activities such as educational seminars. I find this puzzling in light of your current presentation. The psychologist's suggestion that you do not need additional help in order for you to continue making rehabilitative progress is optimistic, unsupported and as I have observed, devoid of reasoning.
123 I would address the issue of compensation. I propose to make the orders for compensation as sought. I have taken into account your current financial circumstances which I note are poor. However, compensation is an order that may remain for the future and may be of assistance in avoiding those victims of your financial misbehaviour having to sue you in a civil court. It is fair that those orders are made and I propose to make them.
Sentence
124 Sir, I am going to announce the sentence now. Again, it is going to be a long process. I suggest you remain seated. I do not think there is any reason in terms of the behaviour in this court why you should remain standing. It will take me a while to read through these.
125 In considering the sentence to be imposed it is noted that, whatever sentence is passed, you are entitled to a benefit of 415 days pre-sentence detention. This is a complex sentencing exercise and sentence considerations of just punishment, deterrence and rehabilitation must be balanced. Sometimes, these considerations pull in opposite directions and this is one of those cases where they do indeed pull in opposite directions.
Firstly, on count 1, misconduct in public office. This will be the base sentence. You are convicted and sentenced to two years imprisonment. Next, in relation to the eight counts of attempting to obtain financial advantage by deception, you are convicted and sentenced to 15 months of imprisonment on each. The 15 months on each will be concurrent - that is, served at the same time as each other. I also order three months accumulation on the base sentence.
Next, on the 24 counts of obtaining financial advantage by deception, I propose to sentence you on each offence to a term of imprisonment of 18 months. I order that these terms be served concurrently with each other and that six of these months be accumulated on the base sentence.
128 On the two counts of theft, I propose to sentence you to a period of 18 months on each, concurrent with each other. I also order that six of these months are accumulated on the base sentence.
129 Next, on the three counts of possession of a drug of dependence, I propose to impose a conviction but no further penalty. In relation to one count of prohibited person using a firearm, I propose to impose an imprisonment term of two years with an accumulation of six months on the base sentence.
Next, regarding the two counts of prohibited person in possession of a firearm, I propose a sentence of imprisonment of two years, concurrent on each, and an accumulation of six months on the base sentence. On the two counts of being a prohibited person in possession of a silencer, I sentence you to four months imprisonment and propose an accumulation period of three months on the base sentence.
131 Next, on the one count of possession of a Category B long arm, I sentence you to a period of imprisonment of three months, one month cumulative. Next, regarding the one count of permit an unauthorised person to use a firearm, I sentence you to eighteen months imprisonment with three months accumulating on the base sentence. Lastly, on the one count of negligently dealing with proceeds of crime, I impose a 12-month imprisonment term concurrent on the previous sentence.
132 On my calculation, that is a total term of four years and 10 months. I propose a non-parole period of two years and nine months and that will leave a period of supervision on parole of two years and one month. I formally take into account 415 days pre-sentence detention as time served so far.
133 I declare, pursuant to section 6AAA of the Sentencing Act, that had it not been for your early plea of guilty, the sentence I would have imposed would have been six years and six months of imprisonment and a non-parole period of four years and nine months.
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134 Now, I went through those rather quickly. First of all, Mr Cookson, do you want me to repeat any of those?
135 MR COOKSON: I believe I have them written down, Your Honour. I am good in that regard.
136 HER HONOUR: All right. Anything else from your point of view, Mr Cookson?
137 MR COOKSON: I believe Your Honour indicated that the compensation orders were granted. I can't quite recall if Your Honour said anything regarding the forfeiture and disposal?
HER HONOUR: No, I forgot. Thank you for that reminder. But I have it before me and I know that it is not opposed. I will formally make the compensation orders as sought and I will formally make the forfeiture and disposal orders. I have got a disposal order for the substances, the cannabis and so forth. Do we have the forfeiture order? Can't see a forfeiture order here, but I know what that's for. if you can make sure that that's sent through, I know that again, is not opposed. Anything else, Mr Cookson?
138 MR COOKSON: No, those are the matters for the Crown.
139 HER HONOUR: Thank you, very much. Mr Hardisty, anything else from your point of view?
140 MR HARDISTY: No, Your Honour.
141 HER HONOUR: I propose to make a recommendation to Corrective Services, which they will either take or not take. Firstly, that Mr Branch has apparently been diagnosed with post-traumatic stress disorder and I accept that he has that diagnosis. He has given evidence against a person in the past. I do not know who that was but I am sure that he will. He has been in custody previously and there needs to be a protection order made with respect to that person and/or that person's associates. I would also recommend that, if possible, he receive some substance abuse relapse prevention assistance while in custody and certainly have that assistance on his release. I commend Corrective Services for the most recent pre-sentence report that I have received. It is very helpful. All right, we'll adjourn now.
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