Sentence - obtain property by deception - obtain financial advantage by deception
Source
Original judgment source is linked above.
Catchwords
Sentence - obtain property by deception - obtain financial advantage by deception
Judgment (2 paragraphs)
[1]
Sentence: Convicted and sentenced to a term of imprisonment of 1 year and upon release from custody ordered to serve a Community Correction Order for 3 years
[2]
Ms Dwyer, if you just remain seated, please. I have got to go through a number of things that relate to your matters before pronouncing sentence. I will ask you to stand then.
This matter first came before the Court on 20 February 2015 before Chief Judge Rozenes when there was a plea to Indictment E11533105. The circumstances thereof being set out in Exhibit A which is the prosecution summary. There were six charges in that Indictment, three of obtaining property by deception, being Charges 1, 2 and 4 and three charges of obtaining financial advantage by deception, being Charges 3, 5 and 6. They are respectively breaches of s.81(1) of the Crimes Act 1958 (Vic) and of the , the seriousness of which is reflected by the fact that Parliament prescribes a penalty of ten years' maximum gaol imprisonment for such.
Insofar as the three deception charges and indeed all the charges, they were committed against Ms Dwyer's employer, Transpacific. As I said, the full details are fully detailed in Exhibit A. The first charge involved the period November 2007 to December 2008, in the sum of $140,513.84. The second charge was the period January 2009 to November 2009 and involved again the same victim, her employer, in the sum of $122,444.88. The fourth charge of those matters was from the period January 2010 to July 10 and that involved a figure of $70,013.64.
Insofar as the obtaining financial advantage by deception, the charges involved there were Charge 3 being for the period March 2009 to December 2010 involving a figure of $9,282.67. Charge 5, a period from January 2011 to December 2011 of $97,790.26 and finally Charge 6, for the period 4 January 2012 through to 16 January 2012 of $6,150.98.
Ultimately Ms Dywer was arrested and interviewed in May of 2014 and a plea was indicated in September of 2014. At the original hearing, the prospects of an additional Indictment was mentioned. It was determined by the Chief Judge that the matter should be adjourned so that the additional Indictment could be dealt with. It was also agreed prospectively that it would be appropriate for full sentencing consideration for a report to be obtained in regard to the possibility of a Community Correction Order being given and that was sought as well.
The matter was therefore adjourned to 27 March when the second Indictment E14029782 was pleaded to by Ms Dwyer and that involved simply one offence, obtaining financial advantage by deception, an offence against s.82(1) of the Crimes Act. It involved a number of transactions in the period 17 September 2012 through to 6 March 2014 when she was then terminated from her job in office administration. The company that she was then working for is Drainpro and financial advantage obtained was $51,548.11. She began that job in 2012.
In the plea before the Chief Judge, it was accepted by Mr May, in regard to the first Indictment that the series of transactions as I have detailed and which are individually totalled in the summary, demonstrate a gross breach of trust by Ms Dwyer in her position of employment. They demonstrate the criminality being committed over a significant period and relate to a high quantum. The total of the first Indictment involved by way of the totality of the six charges was $446,196.
As I said, the matter was further adjourned to 27 March and then adjourned for sentence on 1 April. Unfortunately given the Chief Judge's health, that could not happen and this matter was relisted in front of me on 1 May. Essentially the matters put both by the prosecution and by Mr May were adopted in that hearing before me.
Ms Dwyer is aged 50. She comes before the Court with no priors. She is a mother of three children. By way of background, she initially went into a plumbing and gas business, which failed unfortunately, and thereafter she began to enter a period of excessive drinking but more importantly in regard to these offences, excessive gambling, to use the word grossly excessive is not an underestimate.
Ms Dwyer was apparently aware of her difficulties and indeed sought help in 2006 for her gambling addiction and may indeed have sought help earlier than that. Unfortunately she then started with Transpacific in 2006. At that time she was having difficulties within her home. She had a new partner who was also having difficulties. She was the sole income earner, and as I said, the offending with Transpacific took place over the period of the year 2007 through to the year 2012.
There would appear to be no dispute that the totality of that almost $446,000 went straight down the pokie machine's mouth. She was ultimately, as I said, dismissed at Transpacific. Unfortunately a year later she began employment with Drainpro. As I said, that involved further offending in the sum of $51,548.11. She was finally terminated by Drainpro on 6 March 2014. She was arrested and interviewed initially insofar as the first Indictment is concerned, that is the Transpacific, on 7 May 2014 and she was subsequently questioned as to the Drainpro matters on 29 May 2014.
Mr May informed the Court that during that intervening period between her employment of approximately one year, she sought help. However, to quote his words, "She simply went back to work too soon." Clearly, having committed such serious crimes, to then go back, while she clearly had not been charged at that time, she was aware what was going to happen in her future. Despite the help that she sought, her addiction was such that she could not help herself and was involved in further criminality, which I have detailed.
Insofar as the discussions as to the sentencing in this matter, there was a considerable amount of discussion with the Chief Judge as to the appropriate period and type of sentence. It was the submission of Mr Nibbs, who appeared for the prosecution, that the seriousness of these crimes and the aggravating factors were such that there was a need for immediate imprisonment. His Honour was also of that view, and at the hearing before me, Mr May was accepting of that situation. Those matters were set out clearly by the Chief Judge at p.14 of the transcript of the last hearing that he was present at.
The Community Correction assessment report dated 20 February 2015, Exhibit B, determined that Ms Dwyer would be suitable and the particular conditions to be imposed were set out therein. There is nothing about those conditions that is unreasonable or inappropriate. The real issue for me was to determine exactly what the mix should be.
There is no doubt that the Court has before it in Mrs Dwyer a tragedy, a gambling tragic, a person who has no priors and has ruined her life by the commission of these very serious crimes. It is another example of what happens when a government introduces this type of gambling into a community. It is an absolute outrage and no government should be proud of itself for the plague that it has wrought upon this community. The tragedy is of course that subsequent governments have just continued to benefit from such, by way of money into the budget, so that despite all the tragedy that we see in this Court. The community continues to attend and promote gambling at these awful venues that produce this sort of tragedy. In this case there does not seem to be any dispute from either side, that the gambling addiction to the machines, was almost the total recipient of all the money involved in this case, which is getting up towards half a million dollars. It is marvellous to hear how they then contribute to the community, with small amount.
As I say, these are never easy sentences. No one likes sentencing a person who has been subject to an addiction, however the aggravating factors, the amount and the breach of trust is such that I agree totally with the comments made by the Chief Judge. There is no option, as accepted by Mr May, that a period of immediate imprisonment must be imposed.
If you would stand, please, Ms Dwyer. Insofar as the Indictment E11533105, that is the first matter that was dealt with on the first occasion involving the six charges, I intend, pursuant to s.9 of the Sentencing Act1991 (Vic) to impose an aggregate sentence of a period of immediate imprisonment of one year and thereafter the service of a Community Correction Order of a period of three years. The conditions that will apply when you begin that Community Correction Order will be a period of 200 hours to be served by way of unpaid community work. You will be subject to a treatment and rehabilitation condition and a supervision condition and in particular, you will be subject to further treatment insofar as your gambling is concerned.
I do not know how any people get over addictions. I do not know whether gaol helps but clearly I do not know whether you will ever be in a position to exercise your addiction again but I would have thought the consequences to your life and your family wrought by this criminality should be sufficient to ensure we never you see again. But we all know the problems of addiction.
Insofar as the second Indictment E14029782, which is the single offence, you will be sentenced to a period of six months' gaol. The end result of that, Ms Dwyer is pursuant to the provisions of the Sentencing Act, that you will serve a total of one year's gaol and then be released to serve a Community Correction Order for a period of three years.
Pursuant to s.18, I declare 39 days served to date on remand are deemed to be service of this sentence and a declaration to that effect be recorded in the records of this Court. I have signed the orders under s.464ZF of the C_rimes Act_ and the two compensation orders.
I further indicate to the extent that I am able to comply with the requirements of Parliament in this regard, pursuant to s.6AAA of the Sentencing Act, that had you not pleaded guilty, in regard to the first sentence of imprisonment, I would have sentenced you to a period of imprisonment of 16 months plus a Community Correction Order of three years and on the second Indictment, a period of eight months' gaol.
Good luck, Ms Dwyer. Yes, thank you. I will excuse counsel.
MR MAY: As Your Honour pleases.
HIS HONOUR: Thank you. Thank you for your assistance.