DPP v Tan [2016] VCC 2055 (23 December 2016)

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

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIEW KIM TAN

JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	20 December 2016
DATE OF SENTENCE:	23 December 2016
CASE MAY BE CITED AS:	DPP v Tan
MEDIUM NEUTRAL CITATION:	[2016] VCC 2055

APPEARANCES:	Counsel	Solicitors
Department of Public Prosecutions	Ms A. Coomber	Office of Public Prosecutions

For the Accused	Ms K. Kothrakis	Doogue, O’Brien George

1 Siew Kim Tan, you have pleaded guilty to seven charges of theft. Each are rolled up charges and they span a period of over six years. You have no criminal history before the courts. You were born on 21 March 1963 and you are

3 The prosecutor, Mr Nibbs, opened this matter to me in accordance with a written prosecution opening that was dated 19 December of this year. Your counsel told me that this was an agreed statement of facts and that summary was marked as Exhibit A.

4 The summary refers off to statements within the depositional material including the statement of one of the two directors, Mr Randall Neave, and the company accountant, Mr Zoch. I see no need to describe the full factual setting in these my reasons as no dispute was taken with any aspect of the summary or for that matter the source materials. Your counsel conceded that this offending was very serious. She was correct to make that concession.

5 I will still say something briefly about this offending. You were working in a position of trust as a book keeper at a company, Hunt Textiles Pty Ltd. You started there on a part-time basis back in 2005 but that progressed to full-time employment. By the end of your employment in March 2015, you were being paid something like $80,000 per annum.

6 One of your responsibilities was to prepare payments for local suppliers who were paid once a week in a batch. Though the directors of the company had in place a system that required one of them to actually enter a password into a system to pay funds to suppliers; it is obvious that they trusted you implicitly. You presented documentation to them in support of the later payments but then manipulated the system to change the destination of the later authorised payments that they then entered the password in relation to.

7 Rather than payments going to suppliers as the documentation prepared by you specified, in fact, funds were channelled into one of nine bank accounts held by you. However, the actual suppliers were also paid so there was no outstanding debt leading to some scrutiny of your conduct as a result of unpaid suppliers raising the hue and cry. Your conduct was very dishonest and it was clearly in breach of your duty to your employers. You knew that.

8 It was prolonged conduct with 465 dishonest transactions rolled into these seven charges. A cursory examination of the dates of offending demonstrates the relentless nature of your theft and the size of individual transactions. It escalated. All of it, net illegal gain to you and all of it representing a total loss to the company, a company whose parlous financial affairs you were well awake to. You were the book keeper.

9 There had been a downturn in profitability and your conduct was causing significant reduction to the company's profitability. At one point, even as you were plundering the company in the way described, you spelt out to the two directors the lack of funds on-hand to pay suppliers and raised the need for the two directors to inject $50,000 each to keep the business afloat. They deposited those personal funds to keep the company afloat and you continued your offending. It was incredible dishonesty. They trusted you and no doubt they valued you despite what you may say on the plea through your counsel.

10 Ultimately, an accountant Mr Zoch conducted an examination of the affairs of the company and some irregularities were detected and a meeting was arranged with you on 17 March 2015. The examination disclosed that a large amount of source documentation had gone missing.

11 You initially denied any wrongdoing but then once payments were identified as going into your accounts, you admitted to stealing about $ 100,000. You signed a document saying that the theft had been going on for 18 months. In fact, of course it had been going on since 2008 and the total amount was over $1.3m. At that stage though, the company did not know the true quantum of your thefts. You instructed lawyers and in a letter dated 27 March 2015, you sought to settle the matter for $128,000. The offer was correctly refused and your employment was terminated.

12 An analysis of your banking records discloses the manner in which the funds were used. You spent them in a variety of ways on a variety of things including day to day purchases, shopping, utilities and expenses. It included close to $50,000 on jewellery, $72,000 on entertainment, $65,000 on travel and close to $30,000 on a psychic. That is referred to in paragraph 35 of the statement.

13 You were arrested on 21 September and you were interviewed. Really, the less said about your interview the better. You stated or implied that you had at all times acted with the knowledge of the directors and only received that which you were entitled to but you told the police that you were not free to disclose what had happened without speaking to the directors who had knowledge of these various transactions and had authorised them.

14 You stated and implied that they, the directors, were somehow up to no good with some scheme to avoid GST. It was a pack of lies and it does you no credit that you took such a stance but I want to make plain it is not an aggravating feature at all. Some people cooperate with the police and that can be mitigatory when they do. Non-cooperation is not a matter of aggravation. You chose to tell those lies but that does not aggravate your offending.

16 So much then for my summary of the summary. The full summary remains on the court file.

17 Your victims have made victim impact statements. They were read in the course of the plea to me the other day. I do not see the need to recite what they said in those documents. Indeed, I have read them again since the day of the plea.

18 What is abundantly clear to me having read those materials is that your conduct had enormous ramifications for each of the directors personally and for the company as, they had families, it had impact upon their families, their dependants. And that is so despite the payout that ultimately had been made by insurers.

19 There is a very strong sense within those impact statements of their having been used and betrayed. Well, they trusted you. That is why they had that sentiment. The financial impacts were significant personally to each of them and your conduct has deeply impacted upon every aspect of their lives.

20 This was not a large and solvent company. The directors, owing to the parlous state of their business, were not paying themselves any wages for a significant period. You as the book keeper knew that. That impacted upon their families. They have lost a sense of trust in others. Well, that is hardly surprising. It would actually be amazing if they did not. Your conduct had a direct and sizeable role in the collapse and closure of this company.

22 Your counsel, Ms Kothrakis, raised a number of matters in mitigation. She relied mainly upon:

• An increased custodial burden owing to your knowledge of the position of the three children aged 29, 25 and 17;

• She took me to your personal background, and argued that your conduct was explained by virtue of the cumulative stress arising over a number of years. She implied that repetition of your behaviour was unlikely to be repeated and that you had good prospects of rehabilitation;

23 Ms Kothrakis conceded the seriousness of the offending and the significant breach of trust involved here. She conceded the inevitability of a term of imprisonment and one requiring the fixing of a non-parole period. She conceded that it would not be open to impose a community corrections order in combination with a term of imprisonment and clearly it is not.

24 Mr Nibbs, who appeared on behalf of the Director of Public Prosecutions of this State on the plea, conceded that there was a strong utilitarian benefit to be found in the guilty plea given the potential complexities of a trial. As to remorse, he directed me to the impact statement of Mr Neave who stated, “When Kim admitted guilt on her last day of work, crying and apologising, saying, ‘Randall, I’m sorry I stuffed up’, I initially felt empathy for her.”

25 Mr Nibbs submitted that there was a significant breach of trust here. You knew the system, you knew how to defeat it and also knew the situation of the business. The prosecution challenged the suggestion being raised that no significant weight had to be given to specific deterrence.

26 I turn then to consider the various submissions. The first of the matters I turn to is your guilty plea.

27 You have pleaded guilty and you have done so at the earliest stage. Well, that is a significant mitigatory matter and its worth is not to be determined by assessing the strength of the prosecution case against you. That is irrelevant. What is important is that you have pleaded guilty. You have taken early responsibility for your offending.

28 I give you credit for your decision to plead guilty. There is a significant utilitarian benefit that applies. Witnesses, including of course the two directors, have been spared at least the experience of coming to court to give evidence in a contested trial setting. The community has been saved the considerable time, expense and effort associated with the conduct of a committal hearing in the Magistrates' Court and a trial of some complexity in this court.

29 You have facilitated the course of justice and I must reward you for your decision to plead guilty and at the early stage which you did. I must pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury.

30 I turn then to the issue of remorse. That is, the suggestion that you are to an extent remorseful or contrite for the crimes you have committed. Some people who plead guilty are remorseful. Some are not. You have pleaded guilty and at the earliest stage. A guilty plea is usually evidence of at least some remorse but not always. Mr Nibbs very fairly directed me to the portion of the victim impact statement of Mr Neave as to his observations of you on the day you admitted guilt on your last day of work.

31 But of course, a closer examination of that document shows that that was his, Mr Neave's, initial feeling which was short-lived once he realised, the scale of what you had actually done and once he had further communication with you. Your initial response would mean a lot more had you told something resembling the truth as to the duration or the quantum of the theft, and/or backed it up with a truthful interview when you spoke to the police many months later. The trouble is your admissions on that last day of work were not truthful either as to the scale or the duration of your dishonest conduct and were followed up by a highly dishonest and self-serving account to the police some months later and by endeavours in the interim to settle the debt for $128,000.

32 I asked Ms Kothrakis to take me to any indication of remorse in the depositional materials and she could not. She took me to a line in the report of the psychologist who reports, “Ms Tan described appropriate regret and remorse regarding her behaviour.” Well, the author is stating a conclusion and without explaining it at all and I have raised that with your counsel earlier today.

33 I have to reach my own conclusion from the materials placed before me and I am not assisted by someone else’s conclusion where the underlying explanations for the conclusion are in no way placed before me. I am not acting on his conclusion. I am not prepared to.

34 As I will later disclose, I have some real reservations about the accuracy of some information you provided to the psychologist, especially about the nature of the workplace and your employment experience and the possible explanation of your offending. I will discuss that later in these reasons.

35 Now, justification is too strong a word but there was a sense of your being wronged spilling out in the course of the plea and in your consultations with the expert. I have significant reservations in this case as to the presence of genuine remorse in this case. Further, when one considers your actual conduct, it spanned over six years with very regular acts of dishonesty targeting this company and despite your close connection to the directors. You seemingly were in that period of time immune from feelings for others in the lengthy course of your crimes, looking ,as you did, directors in the eyes and requesting the injection of more capital which you then stole.

36 Looking them in the eyes and lying to them upon discovery. Looking the police in the eyes and lying about your own conduct and lying about the conduct of the directors. What then has triggered your feelings of remorse since?

37 Well, there is a fair amount of self-pity and blame of others lurking in the various materials presented to me, of your somehow being wronged by others. Self-pity and blame of others - well, that is not remorse.

38 I am not satisfied on the balance of probabilities that you are genuinely and deeply remorseful for these crimes, nor was your counsel really suggesting that I could find such significant remorse. She argued that I should find that there was some. Well, I will treat the plea as implying some limited remorse but as I say, I am not satisfied remorse is a powerful factor here at all. Indeed, I believe it is actually quite limited.

39 I turn to your background. I see no need to set out your personal background in great depth. It is referred to in detail in the written outline that has been prepared as well as in the oral submissions that your counsel made to me. Further, there is detail in the report of the psychologist. I accept the personal background that has been placed before me. I have no reason not to.

40 You are 53 years of age and you have no criminal history at all. Of course that is significant and it is significant despite the length of this criminal behaviour. I cannot just ignore many decades of good behaviour. You have three children from your marriage and have raised them alone since you and your husband separated back in 2003.

41 So much of the plea concentrated on stressors in your life as though somehow explaining this conduct. I was taken to a variety of far distant events. There have been some stresses in your life. I do not doubt it. There are for most people actually. You were left with a personal debt by your husband but that was many years ago and in fact predated the period on the indictment by some years. You struggled to maintain the mortgage and send the children to private school with the second child being withdrawn from a private school early on in secondary school.

42 You had very little if any support from your friends and the extended family - you had few friends, the extended family were living overseas. You lost your mother in 2010, your father much earlier still and in unusual circumstances. It would seem that you feel excluded from and even to some extent, judged by the extended family.

43 I was told on the plea that work at Hunt Textiles Pty Ltd was a challenging environment and that you claim that you were overburdened, underappreciated, unhappy and even taken advantage of. I doubt much of that account actually. But even if any of it was true, the answer then was surely to leave. But I doubt your account in that respect.

44 You have had issues with some of your children. You feel that the 29-year-old, is seemingly being a bit lost at this stage in his life. You wonder if he took on too much after the separation when he was but 17 years old. There had been serious issues with the middle child leading to an intervention order being taken out in 2010, but that seemingly is now all resolved and he is employed as a graphic web designer. The youngest is 17 and I was told in the course of the plea that he had finished at school and had been doing some work experience and had been looking for an apprenticeship. But as I understand it he is 17, but he is heading into the second year of the VCAL practical equivalent of the VCE next year.

45 The theme on the plea was of your living a very isolated existence without supports and social networks, with the cumulative impact of these stressors and the dishonesty somehow relieving the stress temporarily. The psychologist spoke of some of these matters.

46 The three sons all live at home and I was told in the course of the plea that none had any idea that you had been charged or were coming to court. Of course, that has changed now I am told and two of them are present today at court. I was told also that your partner or companion, and for that matter, your current employer had no knowledge of the fact of your being charged or coming to court. It is an incredible way to conduct yourself if it is true.

47 I do not know what to make of your future prospects. There is still a strong air of having been wronged by others that seeps through your account presented to me. Your counsel argued that specific deterrence ought not loom large, that it should not be a paramount consideration. On the face of it, this was an unusual submission given the scale and duration of the offending but no doubt, it was driven by the absence of any past offending and your age when you first offended and what has happened since.

48 I learnt that you have been employed on four occasions as a book keeper since being sacked in 2015. On two such occasions, you left those new jobs, feeling that you were not valued. The same sentiments that were said to contribute to the present offending.

49 The process of being arrested, charged and then serving what will be the sizeable sentence that I will soon pronounce will go some distance at least in deterring you from committing crime in the future. You have no prior criminal record and I do not ignore that fact. And there is nothing since. But of course, your serious offending spans over six years. That is easy to overlook but it must not be.

50 Given the scale and duration of your offending, I can only be quite guarded as to your future prospects and level of risk of re-offence. There were

465 instances of dishonest conduct targeting your employer. So many years of dishonesty, daily contact with those who you were actively deceiving. You clearly should never work as a book keeper ever again or in any position of trust and yet you seemed to have been able to obtain four jobs in that area since being sacked. That is disturbing.

51 I enquired of your counsel this morning and I have been told that you had not been open about disclosing your past and this offending.

52 Now, your ability to find such work may change once you have a criminal record but you are not a member of any professional association certifying your fitness with such a body having some ability to interfere with your capacity to work as a book keeper. No doubt there are some businesses out there who do not conduct police checks or run due diligence checks that perhaps they should.

53 It is very difficult for me to know what the future holds for you. There is obviously a risk of future offending but it is very difficult for me to quantify that risk - as it often is. However, I believe that you are probably relatively unlikely to commit this style of serious offending in the future and the criminal record arising from these proceedings will hopefully go some distance to dissuade future employers from engaging you in a position of trust. I am prepared in the circumstances then to assess your prospects of rehabilitation as being relatively good.

Mr Godfredson. He is a treater who has seen you six times since 26 August of this year. He does not purport to conduct any risk assessment. It follows you have only consulted him once you had been committed to a plea date in this court to "get support" for your ongoing legal matters. Your counsel made plain that the case of R v Verdins [1], a Court of Appeal decision, was not being relied upon in any fashion at all, correctly so. Still, I take into account that report. It certainly does assist me as to your background.

55 Now, Mr Godfredson provides a theory that is elevated to an opinion in his report at to the reasons for your offending, but it is founded to a large extent on information that you have provided to him about your life, about the stresses and the nature of the workplace and your attitude to the money that you stole or objects you purchased with it.

56 Whilst not doubting the existence of some stressors in your life, I very much doubt the accuracy of your account especially in terms of the nature of your relationship with your employer. Mr Godfredson says that it became apparent to him that you may have committed the offences as a form of compensation for your subjective experience of unfair treatment and dealing with the absence of support in your life.

57 His opinion is that your offending was not related to anti-social attitudes such as rule-breaking behaviour or a sense of entitlement. Rather he says it appears to be the manifestation of a long-standing subjective sense of unfairness and deprivation associated with self-sacrificing behaviours and that it represented, as he puts it, “maladaptive means of resolving your hopeless situation".

58 Well even if all of that was true, it in fact would not significantly reduce your moral culpability. Indeed, I am not so sure that targeting an employer in part owing to some perception of unfair treatment would be greatly if at all mitigatory.

59 On any view of the case, you knew what you were doing was seriously wrong and seriously criminal. I am satisfied of that beyond reasonable doubt. I am certainly not satisfied on the balance of probabilities of this theory spelt out in his opinion. You clearly had a sense of entitlement and you exercised it almost on a weekly basis. I do not mean to be glib but there may well be a far simpler theory than that fixed upon by Mr Godfredson.

60 You were just dishonest and you stole because at that stage in your life you wanted and/or needed the money. Maybe a bit of each. Whose life would not be made easier by a large tax free cash injection, one that dwarfs one’s legitimate salary? It made your life easier as it would for any person, especially a single-income sole parent. You saw the opportunity to change your life and took it. And you took it because you knew you could. You spent the money in the way set out in paragraph 35. You lived on a lot of it. There is close to $140,000 paid on utilities, over $500,000 on retail, over $65,000 on travel and so on.

61 I am not satisfied that you have provided an accurate account to Mr Godfredson as to the true state of affairs relating to your employment with Hunt Textiles. I see no suggestion of your being used or undervalued or taken advantage of. You worked there for many years and you appear to have been valued. Your annual salary reflected that fact.

62 No doubt your being valued and trusted in the way that you were explains also the strong sense of betrayal and devastation felt by the directors of that company, your victims. I note with interest that you have left two of the four jobs obtained since, claiming that you have "not felt valued".

63 Ultimately, I am not satisfied on the balance of probabilities of Mr Godfredson’s explanation. Maybe he is right. Maybe he is not. I do not know and I cannot know. And I am not assisted by what I judge to have been your inaccurate portrayal to him of the nature of your employment relationship.

64 Ultimately though, it is not a large matter. The fact is you understood the weaknesses of the system. You knew how to defeat the checks and balances. You had some stressors in your life, I do not doubt that at all. You were to an extent isolated and probably were living an unfulfilled and unhappy sort of existence. Again, I do not really have any reason to doubt that. When I examine it, your use of the psychic hotline - spending close to $30,000 on such a piece of humbug - does not suggest to me someone who was happy with their lot in life.

65 However, you clearly knew that your conduct was seriously wrong and seriously criminal and you knew that fact over the course of the more than six years when you committed these thefts. I do not believe there is any significant reduction in your culpability at all.

66 Your counsel argued that I could take into account an increased custodial burden owing to your concerns as to the predicament of your three children. So not the impact upon them of your being imprisoned which would require proof of exceptional circumstances, but rather the impact upon you in terms of the sentence you are to serve. That they have an emotional and financial dependence upon you and that leaving them unsupported will weigh heavily on you as you serve a prison term.

67 Well, it was an unusual submission when regard is had to the fact that they had at the time of the plea no knowledge at all of the charges, the allegations or your impending custodial placement. You presumably simply disappeared off their radar once remanded earlier this week. So you had done nothing at all to prepare them in any way for your going into custody. They have learnt since. You have done nothing prior to being remanded to prepare them for what was inevitable.

68 No preparations were made for your inevitable absence and that despite the strong entreaties of your psychologist who counselled you as to the importance of preparing your children for your possible incarceration. They are not children of a tender age. One is 29 and working-part time, one is 25 and employed and the youngest is 17 and as I have been told today is studying for VCAL. They live together.

69 Well, prison will be difficult for you quite independent of these matters. You are going there for the first time at the age of 53. I cannot give this claim of increased burden much weight at all given their ages and your deliberate or at least considered step not to in any way prepare them for life in your absence. However, I will give it some very modest weight especially as to your understandable concerns for the youngest of the children.

70 As to the offences themselves, your counsel conceded that this was serious offending, demanding of a sizeable prison sentence and one requiring the fixing of a non-parole period.

71 I have to consider a number of purposes of sentencing. They are not limited only to your prospects of rehabilitation. I am required to impose a just and proportionate sentence in relation to your offending. You must be punished. Well, that is obviously a very important sentencing purpose in this sort of case.

72 I must also denounce your conduct and I do. Again, it is an important matter. Your conduct was highly dishonest and it was of long duration and of high value. The breach of trust was high, so too your culpability. You really should be ashamed of yourself.

73 There are other purposes of sentencing and one such purpose is the need for this court to seek to deter you from offending in the future. Well, I must give that principle of specific deterrence some weight in my sentencing task. As I have said, this was very serious offending spanning may years by a person in a position of trust. Your only occupation has been that of bookkeeper and there is obviously a risk that you will endeavour to obtain similar work in the future as you have since being sacked in March 2015.

74 A criminal record check may protect some employers but not all will require such a step. You must be actively deterred. I must also give some weight to protection of the community. Now as I have announced earlier, I believe that you have relatively good prospects and as far as I can determine - it is not easy - but a relatively low risk of reoffending in the same way the future. So I think I can moderate to a degree each of these purposes but they are still relevant to my task and they must be given some weight.

75 General deterrence is a very significant purpose of sentencing in this case and your counsel concedes as much. This court must send a loud and clear message to other individuals in the community who might be minded to commit this sort of serious dishonesty offending, especially to those who are able to commit the offending by virtue of sitting in a position of trust within a structure as you were.

76 Your crimes were deliberate, they were calculated and they were carefully and quite skilfully executed actually. They are in fact the sort of crimes that are difficult to detect. You were a book keeper and one with no criminal record. No doubt owing to your good character and your competence, you were engaged in a position of trust. You then used the position of trust. You knew the weaknesses of the system. You knew how to defeat the system. You were trusted. And that is why you could commit the offences and go undetected for as long as you did. I am not so sure the offences were bound to be discovered especially with a company that may have collapsed into the ashes.

77 I must and I do pay regard to current sentencing practices. I have considered the Sentencing Advisory Council's snapshot in relation to the offence of theft; that is snapshot number 168 of May 2015. However, theft covers a multitude of offending in different factual settings. I have to pass sentence for your thefts and they are serious indeed. They are rolled up between dates offending so the sentencing statistics which always have real limitations have even greater limitations than is usually the case.

78 I have looked also at the selection of cases held at the Judicial College of Victoria Sentencing Manual but make plain that other cases are not sentencing precedents.

79 I have to look at the nature and gravity of your offending. Well, as I have said it was a serious breach of trust - that much is conceded - committed over a long duration and with a high monetary value. All of those matters are conceded. Your counsel argues that this was unsophisticated offending in that the money was going to your accounts and that inevitably, it would be detected. Well, it did go to one of your bank accounts, you had nine in all, but the destination of course was totally masked by your conduct. You did what you had to do.

80 You were trusted and the level of that trust can be gleaned from the fact of this conduct spanning over six years. It had a large impact on the company and brought it to the brink as you well knew. There was a real nastiness to your request for injection of more capital from the directors, their own personal funds.

81 This was not Telstra or the NAB, not that I am suggesting that fraud targeting such large institutions is somehow all right Of course it is not, but such entities may be able to absorb the impact and the person committing the fraud may have no dealings with those actually running the company. This on the other hand was a small company and one with directors who you closely worked with.

82 You knew the difficulties of the company, one not large enough to absorb your financial impositions and yet you persisted even as directors stopped themselves drawing a salary and injected their own personal funds, funds from which you could steal. It was disgraceful conduct. Your criminality was very high. It is not some distant historical event surrounded on both sides by periods of dedication to your true duty which spell out the fact of the conduct truly being out of character. It is not conduct that you have voluntarily desisted in prior to apprehension. You commenced the offending in 2008 and away it ran for years and it only stopped when you were caught.

465 separate dishonest acts. Being under some stress, and I say you may well have been - well, that in no way significantly reduces your criminal culpability. So serious offending indeed and not out of any true financial need nor to support some pathological addiction as is often the case such as gambling or the like. A large amount of money which you just absorbed into your life.

84 An examination of the charges and the schedules is instructive. Very sizeable individual transactions rolled up into calendar periods where we can see the true scale and the frequency of your dishonest conduct. True it is, there are some thefts or frauds that are larger in dollar value, even some that are far larger, but some large dishonesty offences can be committed with a single loop of the pen on a cheque or with a handful of dishonest acts. Then, there are those like yours - consistent sustained dishonesty over many years, all arising out of the trusted position that you held and the trust and the faith that others placed in you.

86 I have engaged in a last look at the sentences imposed by this court in endeavouring to guard against the imposition of a crushing term upon you and to ensure that the sentence is commensurate with your overall criminality. Unfortunately, your criminality was very high indeed.

87 I have been requested to make a forensic sample order. That application is not opposed and I have signed the order and now pronounce it;

88 I order pursuant to provisions of s.464ZF(2) of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the subdivision 30A of Part V of the Crimes Act until a sample of sufficient standard is obtained for placement on the database. I believe the making of the order is justified having considered the seriousness of the offending and so I judge, owing to the seriousness of the offending, the fact that the order is not opposed and that I believe it to be in the public interest that I should make that order. I have signed and now have pronounced that order.

89 What that relates to, Ms Tan, is the running of a swab around your mouth. The authorities will present a swab and either do it themselves or have you do it. I am not sure what happens these days. It is not an invasive process. I have not authorised a blood sample at this point. The authorities can use reasonable force to take this swab. They should not need to. It should be very straightforward, but no doubt, if they encounter any issues, the authorities will be back before me applying for a blood sample which at this point, I have not authorised. I have signed those orders.

90 There is also a compensation order that is sought pursuant to the provisions of s.86 of the Sentencing Act. Again, it is not opposed. I am satisfied that the order ought be made and there is no issue in terms of the quantum or the making of the order for that matter. You have been convicted of theft that has given rise to a loss. I order then that you pay to Hunt Textiles Pty Ltd, care of the insurer, Chubb Insurance Australia Ltd, at the address in the document, compensation in the sum of $1,317,273.70. That now operates as essentially a judgment debt that has been made against you.

91 In discussions with counsel, I raised the prospect of an aggregate sentence being employed in this matter. Each counsel regarded it as an appropriate case for such a disposition, notwithstanding the rolled up nature of each of the seven charges. I can understand the attitude of counsel. One could hardly imagine a case with greater unity as between the seven charges. It is a series of offences of the same character broken down purely by way of the calendar and the value of property taken in that calendar period.

92 Of course, it would be open to me to pass seven individual sentences then to make an order as to the base sentence and then pronounce levels of cumulation upon the base sentence. But I see no need to here. I am going to pass an aggregate sentence in the circumstances.

93 Your offending involved, as I have said, a significant breach of trust. It was of a high monetary value. The impact was sizeable and you knew of the impact. Significantly, the individual charges involved rolled up conduct. One can look at the values of the individual dishonesty acts incorporated into the individual charges. One could look at the total yearly values.

94 Charge 7 relates to 141 transactions in about a year from January 2014 to February 2015 netting $322,000, averaging out at well over $5000 per week. Every month, you were at it. Charge 6, 84 transactions totalling over $233,000. Charge 5, 55 acts totalling $336,000. Charge 4, 52 acts totalling over $256,000 and so on.

95 A close examination of the schedules to the charges spells out the relentless nature of your dishonest conduct. The frequency of your dishonest acts. It is in my view a very serious course of conduct. This was extremely serious theft and there was a grave breach of trust and your culpability was very high. It is unavoidable that you must serve a very substantial period of time in custody. Would you stand up please, Ms Tan?

96 On Charges 1 to 7 on this indictment, being the seven charges of theft, I convict and sentence you to an aggregate period of six years' imprisonment. That therefore is the head sentence.

97 I fix a period of four years during which you will not be eligible for release on parole.

98 You have been in custody in relation to these matters for a period of three days and that period has already been served under this sentence. That declaration is to be noted in the records of the court.

99 I have told you that I have taken into account your early guilty plea and I have reduced your sentence by virtue of it. But for your guilty plea, I would have imposed a greater sentence. Had you been found guilty of these offences following a contested trial, I would have convicted and sentenced you to eight and a half years' imprisonment. I would have fixed a non-parole period of six and a half years. That statement, made under the provisions of s.6AAA, is to be entered in the records of the court. Have a seat please.

100 All right. So are there any matters that I have not dealt with that I need to deal with in terms of formal orders?

104 HIS HONOUR: All right. Now, do you need me to make - or want me to make any sort of custody management directions at all or not?

105 MS KOTHARAKIS: I think they were noted on the previous occasion, Your Honour, when she was remanded.

108 HIS HONOUR: Yes, all right. I will sign that order in a moment. Yes, all right. I have signed that order. Well, this is all coming as a great shock to Ms Tan's children, Ms Kotharakis. They will not be familiar with any of the steps that are to be taken and in terms of visiting and those sorts of things. Will you speak to them about that sort of thing?

110 HIS HONOUR: And also of course to your client as to how she gets them in a position for them to visit. It is important that she have that.

114 HIS HONOUR: Thanks very much then. All right. Ms Tan can be removed then please. Yes, adjourn to a date to be fixed please. Yes.

County Court of Victoria

DPP v Tan [2016] VCC 2055 (23 December 2016)