Director of Public Prosecutions v Carroll

[2024] VCC 1054

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-22-01916

THE DIRECTOR OF PUBLIC PROSECUTIONS

v

MARIA CARROLL

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JUDGE:	HIS HONOUR JUDGE BOURKE
WHERE HELD:	Melbourne
DATE OF HEARING:	21 June 2024
DATE OF SENTENCE:	11 July 2024
CASE MAY BE CITED AS:	DPP v Carroll
MEDIUM NEUTRAL CITATION:	[2024] VCC 1054

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms B. Cunningham
For the Accused	Mr B. Kelly

HER HONOUR:

1Maria Carroll, you are to be sentenced for 21 charges of obtaining a financial advantage by deception and 26 charges of theft. 

2The maximum sentence for both offences is 10 years' imprisonment. However, 22 of these offences attract the continuing criminal enterprise provisions under S6H-J of the Sentencing Act and thereby the maximum sentences for 19 of those charges, (that is,  continuing criminal enterprises offences after Charge 5 on the indictment)  becomes 20 years' imprisonment.

3You have pleaded guilty to the indictment by written arraignment, dated
19 October 2023, under s216 of the Criminal Procedure Act.  This was confirmed before me on 20 June 2024.  It is an agreed position that all requirements of the legislation as to such arraignment have been met. 

4You made a full confession to police in interview on 22 May 2020.  You had through your solicitors voluntarily contacted police to arrange that.  I accept that they were not aware of the offending prior to that;  nor was any other relevant authority.  You participated in a lengthy interview cooperatively setting out detail of offending.  This included that you have provided the identity of victims and documentation such as loan agreements, client files, bank statements and emails.  Much of the evidence of the offences is based on your admissions and that cooperation.  The extent of benefit to you under relevant principle and authority has been the subject of considerable submission,  both written and oral,  before me at plea hearing.  For example, the Crown essentially put the inevitability of discovery,  given  a developing difficulty in maintaining the offending program and growing client disquiet. 

5I find that you are entitled to high benefit of an early plea of guilty and your level of cooperation.  Your plea and that cooperation has accepted responsibility, expressed remorse, and facilitated the interests of justice.  That utilitarian benefit is high, given that your cooperation has avoided a trial very possibly of considerable complexity and length.  That is to an extent enhanced in the light of what has been the impact of the COVID-19 pandemic upon the criminal justice system.  The system is in recovery.  However, I note that the date of your indication to plead was much closer in time to the problems which existed;  your police interview much closer again.

6As to your voluntary confession back in mid-2020, it is true to say that
Ponzi schemes of this type are at least liable to eventual detection and that day may not have been far away;  although this is not certain.  You may not be placed in a position of having confessed utterly unknown offending with no other prospect of it coming to notice.  However, you are entitled to the benefit of the full circumstances of your confession.  It was you who brought it to the knowledge of authorities and,  perhaps more important,  in doing so provided important detailed proof of the offending.  I also find that you are genuinely remorseful and that at least partly motivated you. 

7At your plea hearing, which ran at the Bairnsdale County Court on
20 and 21 June, Ms Farrell for the Crown tendered a written Crown opening and the victim impact statements of Beatrice Carr,  as to Charge 16 on the indictment, and Paul Decarlo, as to Charges 2-5.  Ms Farrell provided written submissions on sentence and comparative sentencing cases.  She also provided a chart of the offences identifying amounts stolen, financial advantage obtained, amounts repaid, or compensated by the Victorian Property Fund and those charges which are continuing criminal enterprise offences.

8Ms Kelly for you tendered the forensic psychological report of Jeffrey Cummins dated 10 April 202;  two reports of treating psychologist, Silvia Kennett, dated 16 and 30 April 2024;  a medical history by your general practitioner; and a number of letters of character reference.  She called Mr Cummins to give evidence and he was cross-examined.  Ms Kelly also provided written plea submissions.

9The circumstances of your offending are comprehensively set out in the tendered Crown opening, which is Exhibit A.  My own summary may be quite short.  It is also informed by matters put on your behalf, not challenged by
the Crown. 

10You committed these offences between October 2013 and
May 2020 while operating your conveyancing business, Maree Carroll and Associates.  That business had commenced in 2003.  It should be noted the bulk of offending was toward the end of the period.  The indictment states offences in 2013, 2016 and 2017    (Charges 1-5)    and then Charges  6-47  in the 13-month period, April 2019 to May 2020.  As well as conveyancing work on sale and purchase of domestic properties, you came to manage investment into and loans out of the business,  often related to finance on domestic property.

11The offending fundamentally fell into two categories. 

12One, on the conveyancing side, you retained or diverted moneys, paid for  deposit or purchase of the properties.  These sums are usually identified and the subject of theft charges. 

13Two,  you diverted,  or mixed with the client funds, moneys invested with you for loans, usually to be secured by caveat.  Caveats were not lodged, false loan documents were created, the moneys or interest were not made good.  These are financial advantage charges. It was, I find, essentially a
so-called Ponzi scheme.  Moneys were, over time, paid to investors or other investors in order to maintain the process and your business.  The indictment states over 30 victims.  Many had long-term quite personal relationship with you.

14As to quantum, on the theft charges, $2,400,545 was stolen.  None of that was repaid by you.  $2,374,453 was paid in compensation by the Victorian Property Fund.  On the financial advantage charges,  a total quantum or measure is $2,277,000.  You repaid in the course of the scheme to a few victims a total of $118,300.  There is no compensation.  There is no evidence before me of  significant personal enrichment or lifestyle.

15Of the large number of people defrauded only two have made victim impact statements.  Beatrice Carr and her husband engaged you as a conveyancer for the sale of their Kyneton home.  You retained and stole $30,247 of the sale proceeds.  They have not been compensated by the Victorian Property Fund.  Her victim impact statement, dated, 18 February 2023, speaks of the anxiety, stress and uncertainty in the course of realising their loss.  There were additional costs,  for example legal costs, given the need to take action to protect their interests.  Ms Carr was suffering a serious illness at the time your fraud was revealed. 

16Paul Decarlo is the son of Elio Decarlo,  now deceased, who invested in your loan scheme over a number of years.  The amount lost is almost $550,000. $76,500 was repaid by you.  There is no Victorian Property Fund compensation.  An important aim was to provide for his family,  upon his passing.  His son's victim impact statement is a powerful description of the impact upon his father and the next generations of the family,  not only financial, but also deeply emotional.  He describes the stress of the gradual realisation of certain loss,  the impact upon his father as he approached his death from cancer.  He, Paul Decarlo,  suffers a pain of feeling that he ultimately failed to protect his father,  despite his suspicions.  Family relationships have been affected.  Mental health has been affected.  Paul Decarlo feels great anger.  He states that his father's pride was taken from him by what you did.  This is not a complete account of the victim impact upon the Decarlo family and others. 

17As stated only two victim impact statements have been tendered.  Although particular parts of the effects described are individual to them, I find that in a more general way they reflect the kind of impact that I should presume was suffered by all or most of your victims.  That includes the distress of a breached trust; stress and anxiety attached to the realisation of it;  and, as well as financial loss itself,   the fear of that.  Many of those defrauded in the investment scheme have not been compensated.  These sums of money were no doubt large in people's experience and situation.  They were associated in many cases with important personal transactions and investment.  I find that there has been very substantial, broadly felt victim impact, which must be taken into account in my sentence of you.

18You are a 63-year-old woman without prior conviction awaiting this sentence in remand custody.  I remanded you for sentence after the plea hearing on
21 June, 20 days ago. You were raised in the north-western suburbs of Melbourne.  Having been adopted at two weeks, you did not know your biological mother who was aged 15 at the time of your birth.  She is now deceased, as are your adoptive parents.  When young, you witnessed some abuse of your mother by your father.  You do not seem to have had a warm or close relationship with your mother.  There were two older children in the family.  You have had a good relationship with both.  They are in their early 70s.

19You left school during Year 10 when you were pregnant,  and then studied at a commercial college.  You began working as a junior secretary at a law firm,  working your way up to senior conveyancer.  You worked as a conveyancer and paralegal in a number of firms before commencing your own business in 2003, as stated earlier the business you operated at the time of offending.  Accordingly, you ran that without committing an offence for 10 years. 

20You married at 18.  That lasted six years.  There was a daughter, now aged in her 40s.  You raised her whilst working without financial assistance from her father.  You now have limited contact with her.

21As stated, you became pregnant at 15.  That was as a result of being raped.  The child, a son,  was adopted. He made contact about 30 years ago,  but that was not successful.  You have had two further relationships.  The most recent ended after about 10 years in 2008 or 9.  Mario Padalini, has remained a friend and is supportive of you.  His letter of character reference is tendered.

22You have given a history to forensic psychologist Jeffrey Cummins of a number of highly traumatic events in your life.  Such trauma is also reported in your treating psychologist’s report,  albeit not in a detailed way.  These are set out in Mr Cummins report as follows. 

23(1).   At 8 years you were raped by a teenage boy who was a neighbour.   He threatened to kill you if you told of it.  

24(2).  Between 12 and 13 you were sexually abused regularly by a man who drove a bus locally.  It involved sexual intercourse; 

25(3).   At 13 or 14 you were sexually abused by the father of a household where you did babysitting.   This involved sexual intercourse.  You remember your father confronting the man.

26(4)   You were raped when drunk at a party when 15; You became pregnant and the child was adopted.  You were deep into the pregnancy when the local parish priest assisted you in telling your parents.  There was some consideration of your older sister raising the child; however the child was adopted, taken from you soon after birth.   Contact with him when 14 was not successful and ended in difficult circumstances which included his harassment of your then 10-year-old daughter.

27I should add that about 17 or 18 years ago in the course of attending the Registry of Births Deaths and Marriages, because of an unrelated matter, you were informed then of your own adoption and introduced to a biological sister and cousin.  Your cousin worked there.  There had been a search lodged by your sister.  You have kept contact with your biological relatives.  Your cousin, Dennis Fraser,  has written a letter of character reference.

28Mr Cummins diagnoses a major depressive disorder which is now severe and associated with symptoms of traumatisation.  There have been symptoms of depression since teenage in response to sexual abuse.  He falls short of a certain diagnosis of complex post-traumatic stress disorder, but sees that as probable.  You have seen Mr Cummins on four occasions between May 2023 and June 2024.  He has conducted relevant questionnaire-style testing explained in his evidence.  Similarly, your treating psychologist, Silvia Kennett, reports symptoms consistent with major depression and complex
post-traumatic stress disorder.  You have attended 71 sessions with her since May 2020. 

29This is self-evidently very serious offending, measured in terms of its quantum, its prolonged period, (albeit I note my earlier remarks as to that)  Its level of sophistication, its breach of trust and victim impact.  The circumstances of offending raise as important sentencing considerations and purposes of moral culpability, deterrence, particularly general deterrence, the need for  strong condemnation and proportionate punishment.  The circumstance require a prison sentence of substantial length. 

30I also take into account a number of mitigating and moderating factors.  They include the following matters. 

31(1)   Your plea of guilty and the circumstances of your confession to police and cooperation.  I refer to my remarks and findings earlier about those circumstances.  They justify in my view a very significant discount in sentence. I find that you are genuinely ashamed and remorseful.  The circumstances of your confession and cooperation is an important moderating factor.

32(2)   Your personal history and circumstances.  This particularly raises the question of the relevance and impact of the principles stated in R v Verdins and related cases.  It is put on your behalf that your moral culpability be treated as reduced and that purposes of deterrence be seen as having a lesser role.  There is reliance upon 
Mr Cummins' opinion stated as follows at paragraph 61 and 62 of his report

'I did not assess her as suffering from any personality disorder.  Rather I had assessed her as being a significantly depressed and traumatised person.  In my opinion, it is very probable she suffers from complex post-traumatic stress disorder.  Although in the alternative I diagnosed her with a recurrent major depressive disorder with associated features of anxiety and traumatisation.'

'In my opinion there was a genuine nexus between her low
self-esteem and negative ruminative thinking and her desire to alleviate her symptoms of depression including low self esteem through lending other people's money but under circumstances where she promptly lost control of that activity.  In my opinion, she continued to offend under circumstances where she had a psychological need reflective of her traumatic past to feel appreciated and of importance to her clients, including those clients on whose behalf she lent money.'

33The Crown challenges that Verdins is so relevant or at least challenges the level of its impact or relevance.  Part of that challenge is that, I quote from the Crown written submission at paragraph 15, 'The offender's account of her personal history and childhood should be carefully and cautiously scrutinised.' As stated, Mr Cummins gave evidence and was cross-examined, in part I would find, on that proposition.  Ultimately, and having observed and considered that evidence, I see no reason to reject it.  Mr Cummins stated his consideration of the genuineness of your account of the trauma his opinions rely upon. There were a number of consultations.  I find that he applied his expertise to it.  Shortly stated, he took into account the nature of the history, your presentation and his experience in forensic psychological assessment.  His opinion that you were genuine was progressively reinforced, he said, in the sequence of his consultations.  I accept his opinion on it.  I find it likely  that the events you described to him happened.  I find that Verdins has some relevance to my assessment of moral culpability and moderates deterrence in the way put.  But, in the circumstances here, that relevance or its impact has limits.  This is not a case in which a seriously debilitating mental health condition has markedly affected judgment.  This was planned, prolonged and dishonest conduct cheating people.  It was self evidently wrong and you knew so.  I do not accept that this is a case of you simply losing control of what happened.  I do accept that the personality features described and said to be related to your psychological condition (low self esteem and an unusually powerful desire to please et cetera, left you more personally vulnerable to offend as you did, or to have it continue.

34Be that part of the application of Verdins principles or part of the broader personal context of your sentence, it should be seen by me as some part of the picture or assessment of the subjectively seen criminality of the offending.  I also see you as likely to suffer greater hardship in prison because of your psychological symptoms and that there is serious risk of those symptoms deteriorating.

35(3) Your previous good character.  Despite the limitations to parts of the character evidence raised by the Crown you should be seen and have the appropriate benefit of good character.  That of course, must also be considered in the light of how likely such good character can be in offending of this kind.

36(4)   Related to that good character and your remorse I see you as having good prospects for rehabilitation.  Specific deterrence plays a lesser role.

37(5)  There has been delay,  now of over four years since your confession to police.  It is not the fault of the investigators or prosecution, nor do I find it has been in any substantial way your fault.  The fact remains that you, as a psychologically vulnerable woman, have suffered the stress and anxiety of the delay.  The psychological evidence supports this. 

38These moderating factors go to lessen your sentence compared to what the objectively seen circumstances and those adverse sentencing purposes which flow would require.  However, such moderation must be balanced against the objective seriousness of the offending.  It was submitted on your behalf that I should consider a sentence combining imprisonment and, upon release, a Community Corrections Order.  I do not see that as within range, given the seriousness of the offending.  There should be a head sentence with a minimum term.  I am persuaded that those matters raised personal to you justify a lesser minimum term and potentially longer parole period.

39I must apply the principles of totality and proportionality.  That is extremely difficult in a case of 47 charges,  and of which a large number are continuing criminal enterprise offences requiring application of the legislative provisions and principles relevant to that.  I shall order what might be seen as very modest cumulation as to the sentence of only some charges.  In my view, it is the best way to achieve a just total sentence but also to give some proper reference to the seriousness of individual offences.  The amounts stolen or measured in financial advantage are inevitably important.  But there are also other facts.  For example the particular victim impact, and its breach of trust caused to Elio Decarlo's family.  I note that, coming earlier in time and in the indictment, those charges are not subject to the higher maximum sentence under the continuing criminal enterprise provisions. 

40I have considered the comparative sentencing cases provided.  I  also bear in mind the need to sentence individually to your case.

41Having considered and weighed what I see to be the relevant and conflicting matters, I sentence you as follows.  Will you stand up please,
Ms Carroll?

42On Charges 1, 4, 9, 13, 16, 20, 24, 25, 29, 31, 32, 34, 37, 39, 41, 44 and 45 you are sentenced to nine months' imprisonment on each.

43On Charges 40 and 42, you are sentenced to two years and nine months' imprisonment on each.

44On Charges 2, 6, 19, 22, 26 and 28, you are sentenced to two years' imprisonment on each.

45On Charges 7, 14, 21 and 36, you are sentenced to two years and three months' imprisonment on each.

46On Charges 3, 5, 8, 17, 18, 23, 30, 33 and 38, you are sentence to 18 months' imprisonment on each.

47On Charges 10, 11, 12 and 15, you are sentenced to six months' imprisonment on each.

48On Charges 27, 35, 46 and 47 you are sentenced to 12 months' imprisonment on each.

49On Charge 43, you are sentenced to two years and six months' imprisonment.

50I direct that four months of the sentences - of the sentence, I will say that again.  I direct that four months of the sentence on Charges 2, 36, 42 and 43 and three months of the sentence on Charges 21 and 22 be served cumulatively on the sentence for Charge 40 and upon each other.

51That is a total sentence of four years and seven months.  I set a minimum term before eligibility for parole of two years and three months.

52I declare, 20 years is correct - 20 days is correct?

53MS CUNNINGHAM:  That's correct, Your Honour.

54MS KELLY:  Yes, Your Honour.

55HER HONOUR: Yes. I declare under the s18 of the Sentencing Act, 20 days of pre-sentence detention already served.  I am required to make a statement of what - under s6AAA of what sentence I would have imposed had you not pleaded guilty.  It is more difficult here given emphasis upon the circumstances of your confession to police.  However, doing the best I can, I would have imposed a sentence of seven years with a minimum term of five years.  Is there anything else that I need to say or do?  Take a seat, please, Ms Carroll.

56MS CUNNINGHAM:  The only thing I'll note, Your Honour, is that it must be recorded on the orders that - the charges for which Ms Carroll was sentenced as a continuing criminal enterprise offender.

57HIS HONOUR:  Yes.  And that will happen.  And that will be not all of the continuing criminal enterprise offences, but those on which the legislation applies, is that right?

58MS CUNNINGHAM:  Yes.  That's correct, Your Honour.

59HIS HONOUR:  Sentenced as criminal enterprise - continuing criminal enterprise.

60MS CUNNINGHAM:  Yes, essentially - - -

61HIS HONOUR:  So, from - - -

62MS CUNNINGHAM:  - - - all but the first three, continuing criminal enterprise offender.

63HIS HONOUR:  Well, all of those types of offences after Charges 2, 3 and 5.

64MS CUNNINGHAM:  Yes, Your Honour.  That's correct.

65HIS HONOUR:  Yes, all right.  So, six and on.

66MS CUNNINGHAM:  Yes.

67HIS HONOUR:  But only the criminality enterprise offences.

68MS CUNNINGHAM:  Correct, yes.

69HIS HONOUR:  Only the relevant offences.  All right.

70MS CUNNINGHAM:  Correct, yes.

71HIS HONOUR:  All right, is there anything else I need to do?  You can sit down, please, Ms Carroll?

72MS CUNNINGHAM:  Nothing from me, Your Honour.

73MS KELLY:  Nothing in relation to Your Honour's sentence, but at an appropriate time I would make an application, in relation to yesterday, for an appeals cost certificate.

74HIS HONOUR:  Yes, I suppose.  I've got some concerns about what happened today, but that's not a criticism of you but there it is.  I don't really know.  But yesterday it was the failure of the electronics, wasn't it?

75MS KELLY:  That's my understand and I'm sure Your Honour's staff would - - -

76HIS HONOUR:  Yes, which I can't sheet home to you can I?

77MS KELLY:  I don't think so.

78HIS HONOUR:  No.  Nor can I sheet it home to your client yesterday.  All right.  I don't know which of the people in court are victims of the offending.  I know that Mr Decarlo is a victim of the offending.  I express my sympathy to you all in relation to what happened and I wish you the best for the future and your families.  All right.  Now I'll turn everybody off I think.  Is that right?  Turn people off.  Yes, good, thank you.  Good.  And I'll stand down.  We adjourn sine die.

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