Director of Public Prosecutions v Anderson

[2020] VCC 1435

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
Suitable for Publication

Case No. CR-19-00691

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID  JOHN ANDERSON

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JUDGE:	HER HONOUR JUDGE TODD
WHERE HELD:	Melbourne
DATE OF HEARING:	25 August 2020
DATE OF SENTENCE:	18 September 2020
CASE MAY BE CITED AS:	DPP v Anderson
MEDIUM NEUTRAL CITATION:	[2020] VCC 1435

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:   Plea of guilty – One charge of theft – exploitation of power of attorney – breach of trust – theft from vulnerable elderly family member – previous good character - circumstances of COVID-19 pandemic.

Legislation Cited: s74 Crimes Act 1958 ; s3 and s8L Sentencing Act 1991.
Cases Cited:  Berichon v The Queen [2013] VSCA 319; 40 VR 490.
Sentence:  3 years imprisonment with 2 year non-parole period.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Mr. F Scully	Rodda Legal

HER HONOUR:

Introduction

1John Anderson was born on 18 March 1945.  He had two children from his first marriage:  David John Anderson and Julie (who is now Julie Fairfield).  John Anderson separated from the mother of his children in 1992.  Hwjae later remarried.  John Anderson suffered from Parkinson's disease, which was diagnosed when he was in his 40s.  On 10 December 2012, John Anderson appointed his son, David, as an enduring power of attorney in relation to both his financial and his medical affairs.  Over the next two years, John Anderson's condition deteriorated, and by 16 July 2014, Dr Sharma Aradye determined that Parkinson's related dementia had rendered John Anderson incapable of making reasonable decisions regarding his financial, residential and legal affairs.  The enduring power of attorney was activated.  Some four years later on 4 October 2018, John Anderson passed away, aged 73.

2In the period from 5 June 2014 to 21 April 2016, David Anderson used his power of attorney to steal a total of $542,991.33 from his father's bank accounts.

3David John Anderson, you have pleaded guilty to one charge of theft, contrary to s.74 of the Crimes Act 1958, an offence which carries a maximum penalty of 10 years' imprisonment.

Circumstances of the offending

4The circumstances of your offending are set out in the Summary of Prosecution Opening for Plea, dated 8 November 2019; that document is Exhibit A on the plea and forms part of these reasons.  I will summarise the facts giving rise to your offence here.

5You were born on 27 April 1976 to John Anderson and Collette Gurrie.  You have one sister, Julie Fairfield.

6In 1992 your parents separated.  Your father later began a relationship with Veronica, and they married in 2006, after more than 10 years together.  Your father and stepmother had no children together, but she had children from a previous relationship too.

7When he was in his 40s, your father was diagnosed with Parkinson's disease and he also developed Parkinson's related dementia in his later years.

8On 10 December 2012, your father appointed you as his enduring Power of Attorney over both his financial and medical affairs.

9Just over a year later, in February 2014 your father wrote his last will and testament and appointed you as the executor of the will and trustee of his estate.  It was your father's intention that all of his real and personal property would go to your stepmother, Veronica Anderson, upon his death.  His will provided that if your stepmother did not survive him, that his real and personal property should be divided, with half to be shared between yourself and your sister, and the other half to be divided between his step-children.

10In July of the same year, your father was admitted to the Peter James Centre Geriatric Evaluation Ward.  At this time it was determined by Dr Sham Aradhye that your father's dementia had progressed to a point where he was no longer capable of making reasonable decisions about his financial, residential and legal affairs.  It was recommended that the previously prepared Enduring Power of Attorney be activated.

11In August 2014, your father was admitted to Opal Salford Park, a permanent aged care facility.  His wife, Veronica, had previously been admitted to a different aged care facility.

12I note that the Prosecution Summary contains reference to the actions of a Ms Van Burren, who had some connection to the Opal Salford Park facility.  The prosecution does not allege that you were connected with Ms Van Burren's actions and I make it clear to you that I do not sentence you on the basis of any suggestion that you and Ms Van Burren were somehow acting together to reduce the contact that your father had with other people.  I make that very clear; I do not sentence on that basis.

13Around this time your sister, Julie Fairfield, became suspicious that your father's funds may have been inappropriately managed by you.  She made an application to remove your Enduring Power of Attorney at the Victorian Civil and Administrative Tribunal (VCAT).

14On 21 April 2016, the VCAT Guardianship List appointed FTL Judge & Papaleo Pty Ltd as administrators of your father's affairs.  The administrators discovered numerous irregularities in your father's finances, including a number of transfers going directly into your bank accounts and to third parties with no connection to your father.

15On 2 June 2017, the administrators wrote to you requesting an account of your dealings with your father's finances.  You did not respond.  On 25 July 2017, the administrators reported their suspicions of theft to the Police.

16The Police investigation revealed that you had taken a total of $542,991.33 of your father's money between 5 June 2014 and 21 April 2016, while you held his Power of Attorney.  None of the money spent was for your father's benefit.  The money was spent on such things as the purchase of a boat ($8000), private rental accommodation ($4180), legal fees owed by you ($15,150), and direct transfers to bank accounts owned by you ($ 384,513 over approximately 19 transactions).  The amounts of those transactions are set out in the schedule to the Indictment.

Arrest and interview

17On 12 November 2018, just over a month after your father passed away, you were arrested and interviewed and, for the most part, chose to exercise your right to not answer questions.  You were charged with theft.

Procedural History

18On 19 November 2018, you were brought before the Melbourne Magistrates' Court for a filing hearing.

19On 11 February 2019, the matter proceeded for a Committal Case Conference and was listed for a Contested Committal.  At the Committal Hearing on 19 April 2019, you indicated an intention to plead guilty to a single charge of theft and no witnesses were cross-examined.

20Your offending occurred in the context of your father's lengthy illness and decline.  Your father suffered from Parkinson's disease and, over many years, his capacity to make decisions deteriorated until such time as he was placed into full-time institutional care.  Your counsel conceded that you, in stealing from your father, stole from an extremely vulnerable victim and from the person who cared for you since you were a child.  The theft took place over an extended period and, although unsophisticated, in that you took no steps to conceal the transactions, it was highly unlikely to be detected by your father because of his loss of capacity.

21You exploited a family member who you were obliged to protect, if not as the result of a filial loyalty, at least as the result of you holding his power of attorney.  You took advantage of this elderly man's tragic circumstances.  You were, not only as a son, but as a Power of Attorney, in a position of enormous trust.  You owed your father utmost honesty and integrity.  This trust was placed in you at a time in your father's life when he could not have been more needy or more incapable of detecting your offending.

22The duration of the period in which you stole from your father, a quantum over half a million dollars, combined with your father's vulnerability and your special position of trust locates your offending among the more grave offences of its kind.  However, I accept that you offending was opportunistic, in that you did not design the circumstances that led to your access to your father's funds.

Victim Impact

23Section 3 of the Sentencing Act defines 'victim' as a person who, or body that, has suffered injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence, whether or not that injury loss or damage was foreseeable by the offender.  I am obliged to take into account the impact on any victim of your offending.  However, it is important to note the law confines the definition of 'victim' to someone who suffers effects that are a 'direct result' of the offending.[1]

[1] Berichon v The Queen [2013] VSCA 319; 40 VR 490 at [12].

24It was put by the Prosecutor on the plea that the financial victims of your offending are those who had an established legal right, even a potential legal right, to a part of Mr Anderson's estate at the time the offences were committed.  As already set out in my reasons, your father's will contemplated several possibilities for the distribution of his estate contingent upon whether or not his wife Veronica survived him.  As it turned out, Mrs Veronica Anderson was the sole beneficiary of your father's will because she survived him.

25That being the case, I regard Mrs Veronica Anderson as the only financial victim of your offending.  To decide otherwise would require me to speculate about a set of conditions that never arose (that being if Mr Anderson had outlived Mrs Anderson), or to speculate about a set of conditions that may arise in the future, depending on Mrs Anderson's intentions for her estate.

26I received victim impact statements from both the natural daughter of Mr Anderson, Julie Fairfield, and from the son of Mrs Anderson, David Trevascus.  I note that Mr Trevascus' statement contains a mixture of statements, some of which are about the impact of your offending on him and some of which express the impact of your offending on his mother, Veronica.  I note that Mr Trevascus holds his mother's power of attorney and this is noted on the front of his victim impact statement.

27I have considered these statements and, pursuant to s.8L of the Sentencing Act, take those parts of the victim impact statements into account that are relevant to your sentence.

28Mr Trevascus sets out in his victim impact statement (that part of it which is concerned with the effect of the crime on Mrs Anderson), that Mrs Anderson, as a direct result of the offending, has had less capacity because of her financial circumstances to make choices about her care, less capacity to financially assist her children, that she would have enjoyed as a result of not having access to funds that would have flowed to her after her husband's death.

29In terms of the emotional impact of the offending, I take into account those parts of the statements that reflect the direct result of your offending and recognise that your conduct has had an emotional effect on the writers of those statements.

Personal Circumstances

30You are one of two children and have a sister, Ms Julie Fairfield.  Your mother and father separated when you were approximately 12 years old.  Your sister lives in the United States.  Until your parents' separation, your experience was that you were raised in a loving and caring family.

31You attended primary school and secondary college to Year 10 and then Year 11 and 12 at Boronia Secondary College.  When you were 18 you went to Croydon TAFE and then over the next five years completed a carpentry apprenticeship while being employed with a number of different employers.

32Since then, you have worked either as a subcontracted carpenter or as an employed carpenter.  Since your offending was detected, you have had minimal employment, partly as a result of a sharp downturn in the building industry, but also because the pending charges excluded you from certain workplaces.

33Between 2005 and 2007, you developed an addiction to betting on horses at the TAB and you lost a considerable amount of money in this way.  In early 2008 you separated from your wife.  You had two children from that relationship, Bailey (who is nearly 15 years old) and McKenzie, age 12.  You incurred significant expenses in litigating your rights in the context of family law proceedings.

34From 2013 until 2017, you were in a new relationship and a son, Cooper, was born, he is now aged five.  I understand that the relationships between you and each of your children are currently fractured, and you do not communicate with your children often.  Your  counsel submitted that you have experienced depression since the breakdown of your marriage.

35When you took the money from your father, you used it to pay for family law expenses and, in one case, to buy a boat, but it appears that you used a substantial portion of money to gamble on the stock market.  You lost a lot of money in this way and chased your losses by taking more money.  Your offending was unsophisticated, in that you did nothing to try to conceal the theft.

36You are now 44 years old and your offending took place when you were 38 and 39 years old.

Matters in mitigation

Stage of plea

37Your case was listed for a filing hearing on 19 November 2018 and listed for contested committal on 19 April 2019.  On that day, witnesses were not cross-examined, and your case proceeded by way of straight hand-up brief to the County Court:  you indicated that you would plead guilty to the charge of theft.

38I take into account that plea of guilty.  It was at an early stage, and you saved the considerable distress that the witnesses were likely to have experienced by giving evidence.  Moreover, you have saved the community all of the various costs of having a trial.  In sentencing you, I recognise these benefits and have taken them into account in your favour.

39Further, at a time where the public health emergency has prevented criminal trials from being held, I consider that your plea is particularly valuable; it reduces the already large backlog of cases to be heard in the future.

Delay

40I note the delay in the finalisation of your case.  I take that into account, in that the last transaction against your father's accounts occurred on 23 March 2016, and from approximately April 2016, when an administrator was appointed to take over your father's affairs, you effectively knew there was going to be 'a knock at the door'.  However, it was not until June 2017 that you were contacted by the relevant trustees to invite you to respond to discrepancies in your father's accounts.  It was another 18 months until you were formally interviewed by police.  It is now well over four years since your offending.  I accept that that delay has taken its toll on you and I take it into account in mitigation of sentence.

Previous good character

41You come before the court aged 44 as a person of previous good character.  You have no prior convictions.  On your plea, your counsel relied on letters attesting to your good character from Jon Haskin, Karen Ridley, Megan Duckworth, Stephen Maason and Jason Jackson.  Mr Jackson also gave oral evidence on the plea. Your character referees spoke about your dedication to your children, particularly their sporting endeavours, about your integrity in your personal relationships, your capacity for hard work and caring and your trustworthiness in the workplace.  In that regard, Mr Jackson gave evidence that given his high regard for you and his perception that you needed help after you were charged with these matters, he made room for you in his business where you worked on a casual basis.  Mr Jackson, notwithstanding that he knew about your offending, regarded you highly enough that he not only employed you, but gave you access to the financial aspects of the business:  a responsibility that you respected.  Mr Jackson gave evidence of how you were regarded as a 'fantastic bloke' who attracted commendations, not only from customers of his business but from your fellow employees.

First time in prison

42It was submitted by your counsel that it was open to me to impose either a standalone Community Corrections Order or a combination of imprisonment and Community Corrections Order.  For the reasons I have stated, I am unable to agree.  Your sentence requires that I commit you to a period of incarceration of more than 12 months.  I note that you have never been before a court before, much less been incarcerated.  I recognise that for a person who lacks any prior history, that incarceration will be a particularly shocking experience.

Psychological report

43Exhibit 5 on the plea was a psychological report of Mr Jeffrey Cummins.  Your counsel relied on the report not in support of any Verdins submission, but rather by way of context for your offending and for your prospects of rehabilitation.  He notes that you were assessed as severely depressed, and that you had become addicted to trading on the Forex market in approximately 2015 to 2019.  You had previously sought help for your gambling, presumably for your earlier difficulty with betting at the TAB.  Mr Cummins formed the opinion that you have a gambling disorder at the relevant time.  Mr Cummins concluded that your current symptoms were largely reactive to your current legal situation. 
Mr Cummins expects, and I accept, that your mental health issues would be exacerbated in the context of you being imprisoned, and I take that into account.

44It is encouraging that you have more recently attempted to reengage with a counsellor you have previously seen in relation to your gambling addiction.

Prospects of rehabilitation

45I have considered your prospects for rehabilitation.  You have a very strong work history.  Several members of the community have spoken of your contribution to the community, particularly in the area of participating in your children's sports clubs.  In your work with Mr Jackson's firm, you have demonstrated that you are capable of being exposed to responsibility around money without offending.  You are said to be strongly motivated to restore your relationships with your children.  You are highly regarded as a friend and described as a hard worker.  You now recognise you need assistance with your gambling, and you have made active steps to getting that assistance.  In this context, I regard your prospects of rehabilitation as strong, and the likelihood of your reoffending as low.

Remorse

46I regard your plea of guilty as indicating your remorse; moreover, it seems you have recognised that there is no excuse for your offending.  I accept that you now feel a degree of shame for what you did.

Consequences of the COVID-19 pandemic

47In thinking about how to sentence you, I am assisted by submissions from both the Prosecutor and your barrister, that the current public health measures taken by the Office of Corrections system necessarily mean that your time in custody will be unusually difficult.  At the moment, all prisoners are unable to receive visits, have less access to phone calls, and all prisoners have to deal with the anxiety of being in an environment they do not control, in circumstances where infection rates in Victoria and in the prison system are unpredictable.  Whether and how long this situation persists cannot be determined at this point, but I recognise that this prospect will make not only your immediate incarceration, but your experience of your prospective incarceration more stressful.  I have taken this into account in your favour.

Sentencing considerations

48I have to impose a sentence that properly punishes you, denounces this behaviour and deters you (and others) from committing similar offences.  Given the evidence of your rehabilitative prospects, I consider that specific deterrence has a lesser role to play in your case.  The sentence that I impose has to convey to you the public condemnation of this type of behaviour, of which yours is an example, that exploits people who most need our protection.  I consider that general deterrence to be particularly important in your case.

49I am also obliged to reflect on and take into account current sentencing practices for similar offending, and I have done so.

Disposition

50David Anderson, on the charge of theft, you are convicted and sentenced to a period of imprisonment for three years.  I direct that you will become eligible for parole after two years. 

51Pursuant to s.6AAA of the Sentencing Act, I declare that, but for your plea of guilty, I would have imposed a period of imprisonment of four years and six months, with a non-parole period of 32 months. 

52So, you have a head sentence of three years, Mr Anderson, and have to serve two years before you become eligible for parole. 

53Counsel, is there anything arising before we adjourn?

54MR SCULLY:  No, Your Honour.

55MR COOKSON:  I believe Your Honour was inclined to make a compensation order at this stage, is that - - -

56HER HONOUR:  I am going to hold over both of those orders until I hear from you, Mr Cookson.

57MR COOKSON:  I see.  Thank you.

58HER HONOUR:  All right.  There are no other ancillary orders sought, I take it?

59MR COOKSON:  Correct, Your Honour.

60HER HONOUR:  All right then. 

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