The Queen v Jobson
[2013] VSC 214
•30 April 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2012 0157
| THE QUEEN |
| v |
| WENDY HOPE JOBSON |
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JUDGE: | PRIEST JA | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2013 | |
DATE OF SENTENCE: | 30 April 2013 | |
CASE MAY BE CITED AS: | The Queen v Jobson | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 214 | |
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CRIMINAL LAW – Sentence – Theft – 6 rolled up charges of theft by an employee from employer totalling over $7.8 million – Committed of a 6 year period - Plea of guilty – Sentence of 8 years’ imprisonment with non-parole period of 5 years
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P N Rose SC | Mr C Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr M D Stanton | Spicer Lawyer |
HIS HONOUR:
Wendy Hope Jobson, yours was a massive fraud committed over a period of six years, from November 2006 until September 2011. As a trusted employee, you stole almost eight million dollars from your employer. In the circumstances, I have no option other than to sentence you to a substantial term of imprisonment.[1] For the reasons I will shortly state, I intend to sentence you to be imprisoned for a period of 8 years, and to fix a non-parole period of 5 years.
[1]See Sentencing Act 1991, ss 5(3) and (4).
You have pleaded guilty to six counts of theft, each of which carries a maximum penalty of 10 years’ imprisonment.[2]
[2]Crimes Act 1958, s 74(1)
Each count of theft is a rolled-up count, that is, a collection of a large number of individual counts of theft bundled together into a single count. This could only have been done with your agreement. Use of rolled-up counts has considerably simplified my task in sentencing you. It also gives you considerable benefit, since the theoretical maximum sentence which could be imposed upon you is greatly reduced. Although you are to be sentenced for a large number of thefts embraced by each count, it is within the confines of a maximum sentence available on each count of 10 years’ imprisonment.[3]
[3]R v Jones [2004] VSCA 68, [13]; R v Beary (2004) 11 VR 151, 156–7 [11]–[14].
The amounts covered by each charge are substantial. Charge 1 – which relates to the least sum in any of the charges – is for thefts totalling $33,336.49 in 2006; charge 2 totals $456,014.20 in 2007; charge 3 is for $1,616,253.45 in 2008; charge 4 – which relates to the largest amount stolen in any year – is for $2,549,067.15 in 2009; charge 5 is almost as large, $2,228,593.91 in 2010; and charge 6, $935,628.46 in 2011.[4] The overall total is $7,818,893.66.
[4]I note that since none of the individual transactions embraced by the counts exceeds $50,000, none of the charges attracts the Continuing Criminal Enterprise Offenders provisions in Part 2B of the Sentencing Act1991: R v Ralphs [2004] VSCA 33, [9]–[10]; R v Shannon [2005] VSCA 143, [5]–[6]; Cay v R (2010) 29 VR 560, 566 [34]–[36].
As I have said, you have pleaded guilty to six charges. You indicated those pleas at committal mention on 27 November 2012, and entered those pleas when arraigned in this Court on 11 December 2012. In the circumstances I regard those as early pleas. They have facilitated the course of justice, by obviating the need for a trial (with the associated cost and inconvenience), but in my view they are also indicative of a degree of remorse. I intend to significantly ameliorate the sentence I would otherwise have passed in light of your guilty pleas. In my opinion, those in your position who plead guilty must know that they will receive a palpable discount for so doing.
I should make plain that I also take into account in your favour your cooperation with police and some very limited repayment of the funds you stole. These indicate some remorse for your actions.
The circumstances of your offending may be briefly described. You commenced work for the Koroneos Group at the Norlane Hotel in 1995. In 2005 you became the administrative manager. So that you could perform your duties, the group’s managing director, Mitchell Koroneos – who regarded you as a trusted friend – gave you access to the group’s accounts with the National Australia Bank (‘NAB’). Over a six year period, by 1478 separate transactions, you stole almost eight million dollars. You covered your tracks by false accounting, including the generation of bogus invoices and the manipulation of figures in Business Activity Statements, and similar.
The reason for your sustained offending was, in the main, to provide large sums for online gambling. It was submitted on your behalf that the genesis of your gambling
was pathological, but not in the way ordinarily encountered in these cases.[5] Evidence was called from a psychiatrist, Dr Sylvia Solinski, that you are afflicted by Dissociative Identity Disorder (‘DID’), and that your gambling was a result of that condition. I do not accept that this is so. In your case I am not satisfied that your moral culpability is reduced by DID or any other mental condition. You were fully aware of what you were doing. In the course of your record of interview with police on the day of your arrest, 27 November 2011, you told them that you had covered up your stealing by purportedly paying invoices which were in fact fictitious, they having been ‘made up’ by you.[6] Your stealing was revealed when the bank contacted your employer, Mr Koroneos of the Koroneos Group, about some unusual transactions. Your access to your employer’s accounts was blocked, and when you became aware of this, you wondered whether the bank had picked up what you were doing.[7] You contacted Mr Koroneos the next day, Saturday 24 September 2011, and you admitted to him that you had been stealing money, believing the amount to have been about one or two million dollars.[8] The following Tuesday, 27 September 2011, you were referred to a psychologist,[9] Madeline Grosso, with whom you ultimately had nine counselling sessions. You handed in your keys the next day, Wednesday 28 September 2011, and did not thereafter return to work.[10] To complete the chronology, your psychologist referred you to Dr Solinski for psychiatric assessment. Doctor Solinski first saw you on 1 December 2011, and diagnosed DID in her first session with you. She relied upon the history you gave her, including when completing the Dissociative Identity Scale (where you scored 41.8, a score of 30 or above being indicative of the likely presence of DID). Doctor Solinski confirmed her diagnosis of DID – which I accept she genuinely believes is present in you – in a report sent to Ms Grosso on 28 December 2011.
[5]R v Grossi (2008) 23 VR 500; 183 A Crim R 15; [2008] VSCA 51, [56]. See also R v Cavillin (Unreported, VSCA, 24 July 1996); R v Chamberlain (Unreported, VSCA, 23 May 1996); R v Lim (Unreported, VSCA, 13 March 1997); R v Dawsan (Unreported, VSCA, 22 October 1998); R v Petrovic [1998] VSCA 95; Director of Public Prosecutions v Raddino (2002) 128 A Crim R 437; [2002] VSCA 66; R v Atalla (2002) 132 A Crim R 531; [2002] VSCA 141; R v Mujedinovski [2003] VSCA 212; R v Wang [2009] VSCA 67; R v Cusack [2009] VSCA 207.
[6]Record of Interview (‘ROI’) Q 139–140.
[7]ROI Q 154.
[8]ROI Q 154–163.
[9]ROI Q 168.
[10]ROI Q 168, 190–192.
In the intervening period, on 27 November 2011, police conducted an interview with you. You told the police that you did not keep track of what you were spending, because you did not know you were doing it. But even on your own version to police, you claimed to know the next morning that you had stolen money when you viewed the transactions,[11] yet you did nothing to prevent the reoccurrence of your peculation over and over again.[12] Moreover, your claim that you did not know what you were doing does not sit well with your actions in deliberately covering up your thefts through false accounting.[13] Nor does it sit well with your assertion that you wanted to hurt Mr Koroneos, because you could not hurt him in any other way;[14] or with your expenditure of stolen funds on cars, a house, first class overseas air travel to London with your sister or payment for a corporate box at Etihad Stadium, where you entertained your sons, your parents and friends. Thus the objective facts surrounding your offences suggest a calculated and protracted course of deliberately dishonest conduct. Even if it be true that you ‘lost’ yourself when gambling online, the fact remains that, even on your own version, you realised in your more temperate moments – when apparently unaffected by any mental condition or ‘parts’ – what you were doing, yet did nothing to stop it. Indeed, on 1478 occasions – when apparently unaffected by any mental condition or ‘parts’ – you diverted money from your employer’s bank accounts into those under your control, with the intention of using the money as your own. Then later, after gambling online – and again when apparently unaffected by any mental condition or ‘parts’ – you took elaborate steps to cover your tracks. By your pleas you acknowledge that you dishonestly took the money belonging to your employers intending to permanently deprive them of their property. Realistically you could not have done otherwise. Of course, I do not use my rejection of your claim to have been prompted by DID as a feature of aggravation. It is merely the absence of a mitigating feature.
[11]ROI Q 225–227, 233-235.
[12]ROI Q 304–307.
[13]ROI Q 253–263.
[14]ROI Q 279–281 299.
Your offending was extremely grave, and represents a gross breach of trust. In his victim impact statement, Mr Mitchell Koroneos describes you as a trusted friend and worker. Thus I must impose a sentence which punishes you to the extent and in a manner which is just in all the circumstances. I must also have regard to current sentencing practises. My attention was drawn to a number of what were said to be ‘comparative’ sentencing cases. Beyond indicating that large frauds attract large sentences, and that (all other things being equal) general deterrence is an important factor in sentencing for large frauds – matters that were not lost on the court – I was not much assisted by them in arriving at what I regard to be a proper sentence in the individual circumstances of your case. That, I hasten to add, was not a criticism of counsel at either end of the Bar table, both of whom admirably lived up to their duties to the Court. But every case must depend on its own facts, and every sentence be the product of an instinctive synthesis of the features particular to it.
Many large frauds have a feature that is absent in your case. Thus often a large number of small investors are deprived of significant sums of money that they can ill-afford to lose. That is a feature that is absent in your case, where there is but one victim, albeit the victim impact statement records a substantial impact on the financial health of the Koroneos Group, and a very significant personal toll on Mr Koroneos and his family. The fact that there is a single victim is in no way, of course, a mitigating feature; but it is the absence of an aggravating factor often encountered in these cases.
In imposing sentence upon you, I must have regard to the need to deter other like-minded individuals from committing similar offences,[15] and I must pass a sentence which adequately reflects the court’s denunciation of your conduct.
[15]DPP v Bulfin [1998] 4 VR 114, 132; R v Kinnear[2009] VSCA 104, [24]–[25]; Yusuf v R[2010] VSCA 266, [27]; Koch v R [2011] VSCA 435, [55].
Although I do not ignore it entirely, I regard the need for specific deterrence to be of minimal importance in your case. I regard it as unlikely that you will ever be in a position to re-offend in a similar fashion. For much the same reason, I regard the need for the community to be protected from you as minimally important.
In reaching these conclusions I have had regard to your previous good character, and what I regard to be good prospects of rehabilitation. Indeed, I have endeavoured to arrive at a sentence which will facilitate your rehabilitation, consistently with the other purposes for which I must sentence you. I do not overlook that in her report of 23 April 2013, Dr Solinski records that during your time as a bank teller you stole and you shoplifted – matters upon which your counsel expanded in his plea – but I do not take those frank admissions to Dr Solinski into account in a manner adverse to you. I am prepared to accept that, apart from your persistent dishonesty over a period of six years, for most of your 50 years you have been of good character.
Several references as to your character were received, including your ex-husband, Christopher; your son Benjamin; past President of the Glen Orden Sports Club, David Cassano; your uncle and Justice of the Peace, Keith Claughton; your teacher in the Diploma of Children’s Services course you commenced in October 2012, Ellen Abel; your friend, Rosemarie Forbes; and your current partner, Gregory Glascott. I need not recount their content in great detail. They paint a picture of a person regarded as possessing good character; a loving parent; a good friend; and an individual who is remorseful. Save for those parts which might be used to support a diagnosis of DID – which were described by Mr Rose as ‘self serving’, and which I should take ‘with a grain of salt’ – I have taken them into account in your favour.
I have been told something of your history and antecedents. You were born on 27 July 1962, and are 50 years of age. You were educated at the Altona Gate Primary School where you were bullied because you stood up for your sister, who was teased because she wore callipers. I was told the bullying resulted in your arm being broken in 1974. Between 1975 and 1979 you attended Paisley High School in Newport, where you completed Form 5. You were happy during these years, participating in the Girl Guides and church related activities.
In 1980 you commenced work at the Commercial Banking Company. You married Christopher Jobson in 1986, aged 24 years. I was told that the marriage was an unhappy one, and you discovered that your husband was involved in an affair in 2002. You separated in 2010. However, your union produced two sons, Benjamin, born on 2 June 1990, and Jake, born 29 August 1994. As a result of imprisonment, you will suffer separation from your family, although no more than the average person with a family in like circumstances. It is also unlikely that upon your release you will ever be able to follow the same kind of employment that you have pursued since you were 17 years of age. I regard your separation from family, and loss of employment (and accrued entitlements), however, as being of very limited importance in fixing sentence. They are by no means out of the ordinary for cases of this kind.
You commenced work at the Norlane Hotel in May 1995, having previously met Mr Koroneos in 1987 when he was a customer of the NAB where you then worked. Between 1996 and 1997 you obtained qualifications relating to gaming, responsible serving of alcohol, food service, and similar. You were, as I have said, a trusted employee and friend. You have made some suggestion of an ‘inappropriate’ relationship with Mr Koroneos, but provided little or no support for that suggestion. In the result, I am unable to be satisfied that there was anything of an inappropriate nature in your dealings with Mr Koroneos which may have affected your moral culpability. The same might be said of your suggestion of abuse at the hands of a family member, as described in Dr Solinski’s report.
I was also told of the death of a close friend in 2003, a hysterectomy in 2005 and the trauma of discovering a breast lump. I do not regard these factors, however, of being of any relevance in determining an appropriate sentence.
Your counsel, Mr Stanton, in an earnest and complete plea on your behalf, sought to rely on your DID in a variety of ways, consistently with the guidance provided by the Court of appeal in Verdins.[16] I do not accept that the DID, even if extant, affected your moral culpability for the offending. As I have said, at times when you were capable of rational thought – uncompromised by a mental condition or ‘parts’ – you diverted funds to your own use, and later covered up your thefts. Nor do I accept that imprisonment for you would be more burdensome than for others. Doctor Solinski’s evidence as to the burden of imprisonment on you was at best speculative. Indeed, according to one of her speculative hypotheses, imprisonment for you might be less burdensome than for someone unaffected by DID.
[16]R v Verdins & Ors (2007) 16 VR 269.
I am required to have regard to the impact of the offences on the victim of the offence, and to any injury, loss or damage resulting directly from the offences. As I have said, you stole $7,818,893.66, little of which has been recovered and most of which is unlikely ever to be recovered. You remitted $195,849.98 to the Koroneos Group in December 2011 following the sale of your matrimonial home, and I take that into account in your favour. You are, however, now bankrupt; and even absent your bankruptcy, the prospect of you ever being in a position to pay back the vast majority of the almost eight million dollars you stole is forlorn. I received a victim impact statement from Mitchell Koroneos, which speaks of the impact the offences have had on him, his family and his business. I take that victim impact statement into account when fixing sentence.
In the end, I must impose sentences on each count which are proportionate to your offending, and fix a total effective sentence and non-parole period which are proportionate and which pay due heed to the principle of totality.
Wendy Hope Jobson on each count you will be convicted. On count 1 you are to be sentenced to 12 months’ imprisonment; on count 2, 2 years; on count 3, 3 years and 6 months; on count 4, 4 years; on count 5, 4 years; and on count 6, 3 years.
I select the sentence on count 4 as the base, simply because it relates to the largest amount stolen. I would cumulate 6 months of the sentence on each of counts 1 and 2, and 12 months of the sentences on counts 3, 5 and 6, with the sentence on count 4 and with each other, leading to a total effective sentence of 8 years’ imprisonment. In my estimation, and having regard to the various factors I have already discussed which must animate any sentence I pass, in my opinion the minimum period which you must in the interests of justice be required to serve is 5 years. Hence I fix a period of 5 years’ imprisonment before you will be eligible for parole.
Section 6AAA of the Sentencing Act 1991 requires me, if I impose a less severe sentence than I would otherwise have impose because of your guilty pleas, to state the sentence and non-parole period that I would have imposed but for the plea of guilty. Given that any sentence I pass must represent my instinctive synthesis of all relevant factors, and given that I cannot look at mitigating features in isolation, s 6AAA requires me to indulge in a somewhat artificial (although legislatively mandated) exercise in order to apply it. Doing the best I can, I state that, but for your pleas of guilty, I would have imposed a total effective sentence of 11 years, with a non-parole period of 8 years.
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CERTIFICATE
I certify that this and the nine preceding pages are a true copy of the reasons for Sentence of Justice Priest of the Supreme Court of Victoria delivered on 30 April 2013.
DATED this thirtieth day of April 2013.
Associate