IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
CR-24-00757

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
ROBYN LUNNEY		

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JUDGE:	HER HONOUR JUDGE DALZIEL	
WHERE HELD:	Melbourne	
DATE OF HEARING:	12 August 2024	
DATE OF SENTENCE:	21 August 2024	
CASE MAY BE CITED AS:	DPP v LUNNEY	
MEDIUM NEUTRAL CITATION:	[2024] VCC 1297		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW 
Catchwords: 	Theft, obtain property by deception, obtain financial advantage by deception 
Legislation Cited:	Sentencing Act 1991 (Vic)
Cases Cited:	DPP v Lunney [2024] VCC 433; DPP v Oksuz (2015) 47 VR 731; Bugmy v The Queen  (2013) 249 CLR 571; R v Lunney [2007] VCC 638
Sentence:	3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ms A. Liantzakis	Office of Public Prosecutions 	
			
For the Accused	Mr J. Portelli	Giorgianni & Liang Lawyers	

HER HONOUR:

1	Robyn Lunney, you have pleaded guilty to one charge of theft, one charge of obtaining property by deception, and one charge of obtaining financial advantage by deception.
Circumstances of Offending 
Background 
2	At the time of the offending you were employed as a bookkeeper by the victim, Norm Phillips and Staff Pty Ltd. This company provided electrical and data services, and was owned and operated by Matthew Phillips, who was the managing director.
3	At the time of the offending, the company operated with one ANZ business bank account, one ANZ credit card, and one American Express credit card. 
4	You were employed by the victim company from 25 July 2023 to 22 January 2024 as a full time office manager/bookkeeper. Your duties included:
(a)	Uploading payment schedules into the banking system to be authorised by Mr Phillips;
(b)	Running day to day operations;
(c)	Reconciling banking and credit card statements for payments;
(d)	Invoicing; and 
(e)	Running projects through MYOB, including data entry into the MYOB system.
5	Only one person aside from you had access to the MYOB system, that being 
Mr Phillips’ father, the business accountant. It was your sole responsibility to input data into the MYOB system. 
6	You were able to make payments from the two credit cards you had access to. These cards were ordinarily used to pay suppliers, or for accommodation when workers were away from the local area. You could not make payments from the ANZ business bank account, although you could access the financial statements associated with it. Payments from the ANZ bank account required Mr Phillips’ authorisation. 
7	At the time of the offending you were on bail for previous dishonesty offences, for which you have now been sentenced. 
8	The Summary of Prosecution Opening details the various transactions.  For these sentencing remarks I will further summarise the information in that Opening.
Charge 1 – theft 
9	This charge commenced approximately 2 months after you began to work for the victim company.
10	Over a period of around 4 months, from 28 August to 22 December 2023 you caused a total of $122,481.50 over 14 transactions to be transferred from the business ANZ bank account into one of your personal CBA accounts. 
11	When a payment was received into your account by this method, you further dispersed it, either fully or partially, to another of your CBA accounts.
12	Most of these transactions which found this charge involved you uploading payments for genuine suppliers into the MYOB system, but changing the banking details so that they reflected your CBA account rather than the legitimate account.  The invoice would be processed and the funds intended to pay the invoice would go into your bank account.  You would then pay the supplier using the victim’s AMEX card.  The quantum of the transactions varied, with the lowest being $1,293.27 and the largest $29,212.34.  Eight of these transactions were at the lower end, below $4,000, five between 10 and 20 thousand dollars, and the largest, to which I have already referred, was $29,212.34.
Charge 2 – obtain property by deception 
13	Between 25 September and 20 October 2023 you made two online purchases, using the victim company's credit cards. The total value of the property you obtained by using these cards without authorisation was $3,196. 
14	First, between 25 and 28 September 2023 you purchased an Apple Mac Book Air from JB HiFi for $1,799. The purchase was made with the victim company’s AMEX card. The purchase was shipped to an address in Fountain Gate shopping centre, addressed to you.
15	Then, on 20 October 2023 you purchased three pieces of furniture from Fantastic Furniture Dandenong for $3,197. The purchase was made with the victim company’s ANZ VISA credit card. The purchase items were shipped to your home address. The invoice for this purchase was in your name, and included your mobile phone number. 
Charge 3 – obtain financial advantage by deception 
16	On 24 October 2023 you made an online payment to “Kwik Finance Qld Pty Southport” for $813.75 using the victim’s ANZ credit card. You entered this transaction into the MYOB system as, “JH Market Purchase”.
17	This payment matches other payments made from your own CBA account to Kwik Finance Qld for the same amount. 
Detection of offending
18	Mr Phillips grew suspicious of you on 21 December 2023 when you requested the urgent authorisation of a multi batch payment. He was also notified on that day by the ANZ Bank that a large sum was owed on the company credit card. 
19	A new office manager was hired and commenced work on 22 January 2024. She identified several discrepancies in the supplier payments on the victim company’s credit card statements. Additional transactions on the MYOB system were recognised as being paid into an unrelated CBA account. 
20	The victim reported the matter to police on 12 February 2024. The ensuing police investigation discovered that the CBA account was held in your name, and that you were the sole signatory of that account since it was opened in February 2022. 
21	You attended the Dandenong Police Station on 16 February 2024, where you admitted to the offending, and explained to police how you misappropriated the funds. 
22	You told police that you did not know why you offended, and that it was just something your mind told you to do and so you did. You told police several times that you were sorry. You said you would spend the money on general spending, and gambling.
Victim Impact
23	Mr Phillips provided a victim impact statement.  He is now less trustful of his employees, which has an adverse impact on his interactions with them.  He is less trustful in general, and feels defensive and anxious in many situations, including in personal relationships.
24	The loss of the funds you stole or obtained has had a significant impact on his business.  Considerable additional work also had to be done to find and correct errors in the MYOB system, which was not only a source of stress, but also another financial burden.  
Gravity of Offending
25	I consider that your offending is serious, particularly Charge 1.  This charge required steps to be taken to obtain the initial funds, and then to cover up your theft by misdirecting payments through the MYOB system, and use of the credit cards.  You repeated this type of conduct on different occasions, over four months.  You caused a significant financial loss to the business.
26	Your offending required an understanding and manipulation of the MYOB system, but whilst you took steps to avoid the diverted funds being obvious, for example by ensuring that the invoices were paid, when you used your own bank account, your involvement was inevitably going to be discovered.   When you were committing Charges 2 and 3 you provided your own personal details.  Each of those charges is considerably less serious.
27	All of the charges are aggravated by the position of trust that you held in the business.  The victim was not a large company, and the loss inflicted directly impacted both the owners and no doubt the employees.  
28	Defence counsel told me that you are aware that you have a habit of such offending, when under stress.  You listed various stressors in your life at the time, including financial stress of funding legal representation for the other proceedings which were on foot, and issues regarding your brother.  You described your own offending as impulsive and short-term thinking.  I have some difficulties with that characterisation, given the number of transactions and steps involved.
29	I also note your instructions to counsel that spent around half on gambling, and significant amounts of the funds on cocaine.  As was discussed in the course of plea hearing, these instructions to your barrister are inconsistent to what you told Dr Sullivan.  He explained this on the basis that you were less than forthcoming with Dr Sullivan in light of the ongoing proceedings, and the fact that you were still working for the victim company at the time of your assessment by Dr Sullivan.
30	I do not consider it necessary to make a finding as to the reasons for your offending.  If it were gambling or drugs that is in no way mitigating.
Personal Circumstances 
31	You are now 48 years old and you were raised in Berwick by your parents. You have three brothers.  You also have two daughters. You described your parents, when speaking to Dr Sullivan, as strict and over protective.  You report an ongoing relationship with your parents, speaking regularly to them by phone.  
32	You report being sexually abused by one of your brothers, when you were nine years old, and that this was discovered by your other brothers, who told your mother, following which the behaviour ceased.  You felt then and feel now that your parents brushed this abuse aside, and that you experience ongoing grief about this.
33	Your daughters are now aged 22 and 19.  You are now estranged from them, and I was told that they have cut off contact with you since you were sentenced earlier this year.  You have no ongoing relationship with their fathers.  You have reported being the victim of family violence inflicted by the father of your eldest daughter.
34	You have reported on a number of occasions that you were the victim of an attempted rape in mid-2005, that offence having been committed at knife point.
35	You went through primary school and high school, and left after Year 11.  You initially found work at a dry cleaner and then at a dye works.  You had a significant injury to your hand in your work at the dry cleaner, in 1995.  You subsequently developed post traumatic symptoms from this incident.  Following that job you began working at the dye works, and I was told you worked there between 1995 to 2000.  
36	At some point you trained in administration and bookkeeping.  You commenced employment with the victim of the first offending, Slorach Designs, and that brought you before the courts after you were interviewed by police in September 2005.  You were sentenced in 2007 to 26 months' imprisonment, with a non-parole period of eight months.
37	In 2012 you were working for another business, Bulla Wines, as a credit controller.  You stole from that company on five different occasions, leading to you being sentenced in the Magistrates' Court in 2013.  You then worked for the company, Cut Price Kitchens, which was the victim of the offending for which Judge Mullaly sentenced you.  Cut Price Kitchens was also a small family business.  You worked for them as I understand it from2016 to 2020.  You commenced working for victim in this matter in July 2023.  I was not told what jobs you had in the intervening periods.
38	More recently, whilst you have been in custody, you have been seeing a counsellor, addressing your anxiety and gambling issues.  You have applied for courses in prison, and for counselling through West CASA, although that has not yet commenced due to the waitlists.  You have a job in prison in data entry, which you say is a prized role.
39	You told Dr Sullivan that you were a moderate drinker, and did not use any illicit stimulants or hallucinogens.  You did report to Dr Sullivan that you had in the past overused and had cravings for some of the prescription medications which you had taken in the past.  As I have already mentioned, your instructions to counsel were that you did in fact at the time of this offending have a drug habit in respect to cocaine.
Mental Health
40	A report was prepared by Dr Sullivan was tendered on the plea.  This was the same report that was provided to Judge Mullaly earlier this year.  You reported:
•	Significant anxiety, for which you had medication, that you found helpful;
•	You experienced intermittent depression;
•	You had past weight issues and eating disorders;
•	You denied any perceptual abnormality;
•	You spoke of a lack of trust in others which you connected to the past sexual abuse and assault;
•	As I have already said, you reported minimal gambling, no more than $20 per week.
41	Dr Sullivan considered you met the criteria for a diagnosis of generalised anxiety disorder with panic attacks, and that you reported good control of these symptoms with medication.  He did not consider your symptoms related to past trauma, including triggering and re-experiencing, satisfied the diagnostic criteria for PTSD.  
42	He noted that past presentations which had been considered to be consistent with bipolar effective disorder were no longer apparent in you.
43	Dr Sullivan considered that none of your mental health issues were causally related to the offending.  Nor did he consider that your mental state would make incarceration more difficult for you.
Criminal History
44	In 2007 you were before this court, before Judge Michael Bourke, on three charges of theft, one of false accounting and a charge of dealing with property suspected of being the proceeds of crime.  You were sentenced to a total effective sentence of 26 months' imprisonment, with a non-parole period of eight months.  In effect, that offending consisted of over the course of 17 months stealing $292,695.75 from your employer.  You had been working for that business as a book keeper.  You had continued to offend even when the business was in financial difficulty and an investigative bookkeeper had been employed by it.
45	You were sentenced again in 2013 at Dandenong Magistrates’ Court on five charges of obtaining financial advantage by deception, which had been committed in 2012 against the business which was your employer, Buller Wines.  As I have already mentioned you were employed as a credit controller with that company.  Using methods similar to those in the case before me, you diverted payments into your bank account.  You received a sentence of two months' imprisonment, to be followed by a CCO, with conditions for assessment and treatment for your mental health and other issues.  There was a compensation order in the sum of $14,654.18.  You appealed that sentence, without success.
46	After you were charged with the matters which are before me, you were sentenced by Judge Mullaly for offences which were committed between 2016 through to 2020.  They involved you, in your employment as a bookkeeper in a small family business, misappropriating $561,922.72, by diverting payments into your own bank account.  Judge Mullay sentenced you to a total sentence of five years and nine months’ imprisonment, with a non-parole period of four years.  His Honour observed:
'…as to the gravity and perhaps your moral culpability, was that your own banking records, once investigated, revealed your self-indulgent greed in how you spent the victim's money. You used the victim's money to fund frivolous extravagances for yourself. As I said, on any measure, this was a grave example of the always serious crime of theft from an employer.'
Matters In Mitigation
Plea of Guilty
47	You were interviewed in respect to these matters and charged on 16 February 2024.  You were released on bail on 17 February 2024.  Then, on 20 February 2024, following the plea hearing in the matters which were before Judge Mullaly, you were remanded in custody, both on that matter and on the charges for which I will now sentence you.  On 10 April 2024 you were sentenced on CR-22-01409, to the sentence to which I have already referred, with 50 days of pre-sentence detention declared.
48	The matters which are before me resolved on 1 May 2024, and the matter was booked in for a plea hearing on 12 August 2024.  On that day your counsel was unwell and so the matter was adjourned to today, 21 August 2024.
49	All that points to this being an early plea of guilty.  The speedy resolution of these charges has saved the resources of the courts and the prosecution, and has saved the victims the stress of giving evidence.
50	I accept that you do regret your actions, as evidenced by your early admissions, and pleas of guilty.  I also note that you told the police that you were sorry for what you had done.  On the other hand, such expressions of remorse were not linked in past to rehabilitation.  In view of your early pleas of guilty you will receive a significant discount in your sentence by reference to the facilitation of the administration of justice, and the practical utilitarian benefits afforded.
Totality
51	Broadly speaking, the principle of totality requires a court, on having arrived at the individual sentences, to step back and look at the total effective sentence, to ensure that the final combined sentence is just and appropriate.
52	I also have regard to the fact that you are still serving the sentence imposed for the offending committed between 2016 and 2020.  I note that there was a period of some three years between the end of that offending, and the start of the offending which is before me.  The victims in the two sets of offending are unconnected.
53	Because you committed these offences whilst on bail, the usual presumption of concurrency has been removed by the Sentencing Act 1991 (s16(1A)(e).  That does not mean that there must be total cumulation, but it does impact the application of the principle of totality.
54	In view of the lower gravity of Charges 2 and 3 before me, there will be some modest cumulation between those charges and Charge 1.  In view of the timing of this offending, and this plea, and the factors to which I have already referred, there will be a significant degree of cumulation between this sentence and that imposed by Judge Mullally earlier this year.
Bugmy
55	The next topic which was raised was childhood depravation.  In the course of the hearing your counsel sensibly abandoned reliance on the principles expressed by the High court in the case of Bugmy.  
56	This was an appropriate course.  Your childhood, although marred by the sexual assault by your brother, cannot be described as one of involving deprivation. 
57	Your personal experiences, including sexual assault, have of course been part of the life experiences which have formed you, and are a relevant part of your personal circumstances.
Prospects of Rehabilitation
58	When you were sentenced in 2007 the judge observed you had spent your ill-gotten gains, “profligately and irrationally”.
59	Judge Mullaly, earlier this year, described the offending for which he sentenced you as very similar to the past offending, and committed in circumstances where it was made plain to you, at that earlier sentence in 2007, the impact of your dishonesty upon the victims.  Judge Mullaly had to grapple with the situation where at the time of that assessment you had committed these new offences.
60	Defence counsel told me that you will avoid working, in future, in roles where you have access to money, and also that you understand the need to address both your gambling and drug use.
61	Given your past history of committing dishonesty offences against three separate employers, in 2004-5, in 2012, and in 2016 to 2020, and then committing these offences whilst on bail for the earlier offending, and in view of your reasons for offending, I find that your prospects of rehabilitation are guarded, at best.  Whilst you express the understanding that you need to not work in jobs where you have access to the business’s money, you have not in the past taken that simple and obvious step previously.  
62	I consider specific deterrence has significant impact on your sentences.
Other Principles and Purposes
63	The sentences I will impose must give force to the principles of general deterrence, just punishment, denunciation, and protection of the community.  You are a recidivist fraudster, who has now cheated four employers on four separate occasions.  
Sentences
64	Charge 1, the sentence is two years.
65	Charge 2, the sentence is five months.
66	Charge 3, the sentence is two months.
67	I will direct that two months of the sentence on Charge 2 and one month of the sentence on Charge 1 be served cumulatively on the sentence on Charge 1, which is two years.  That leads to a total effective sentence of two years and three months.
68	I direct that one year of the total effective sentence I have imposed be served concurrently with the sentences you are presently serving.  That means that the combined total sentences involving my sentences and those imposed by Judge Mullaly is seven years' imprisonment.  Taking into account pre-sentence detention of two days, which I will declare, by my calculations that means that the total effective sentence of seven years will expire on or around 18 February 2031.
New single Non-Parole Period 
69	You are currently serving the non-parole period of the sentence imposed by Judge Mullaly.  He imposed a sentence of five years and nine months, with a non-parole period of four years, on 10 April 2024, and he declared 50 days of pre-sentence detention.  By my calculations the non-parole period imposed by Judge Mullaly would expire on 20 Feb 2028. Section 14 of the Sentencing Act provides that I must impose a new single non-parole period covering both the sentence you are now serving and the sentences I impose.  The new non-parole period cannot enable your release earlier than the non-parole period set by Judge Mullaly.
70	The new non-parole period that I impose will commence running from today, less the two days of pre-sentence detention I will declare credited to that period.  It is my intention that you will have the opportunity for two years on parole, thus being eligible for parole in February 2029.  To achieve this I impose non-parole period of four years and six months, commencing today.
71	As already stated, I declare two days of pre-sentence detention, and I direct that that be entered into the records of the court.
72	I will make the disposal and forfeiture orders sought by the Crown.
73	Pursuant to S6AAA of the Sentencing Act, I state that if you had not pleaded guilty I would have sentenced you to three years and six months' imprisonment with a non-parole period on these charges alone of two years and three months.
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