Director of Public Prosecutions v Charisiou
[2024] VSC 303
•24 May 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2022 0149
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| DEMETRIOS CHARISIOU | Accused |
JUDGE: | CHAMPION J |
WHERE HELD: | Melbourne |
DATE OF HEARINGS: | 8 and 14 November 2023 |
DATE OF SENTENCE: | 24 May 2024 |
DATE OF REASONS: | 7 June 2024 |
CASE MAY BE CITED AS: | DPP v Charisiou |
MEDIUM NEUTRAL CITATION: | [2024] VSC 303 |
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CRIMINAL LAW — Sentence — Obtaining financial advantage by deception (two charges) and using false documents (two charges) — Pleas of guilty — Accused engaged in business transactions with Korean companies in relation to purported supply of National Disability Insurance Scheme approved housing — Remorse — Offending objectively very serious —Prospects of rehabilitation good — No criminal history — Sentence of 12 years’ imprisonment with non‑parole period of 8 years — R v Verdins (2007) 16 VR 269 — Sentencing Act 1991 (Vic), ss 5, 6AAA, 11.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | G Coghlan KC A Roodenburg | Office of Public Prosecutions |
| For the Accused | C Winneke KC A Haban-Beer | Tony Hargreaves & Partners Lawyers |
HIS HONOUR:
Introduction
Demetrios Charisiou, on 27 June 2023 you pleaded guilty to four charges, namely that:
i. Charge 1: On 5 April 2019, by deception you dishonestly obtained for LBA Capital Pty Ltd [‘LBA Capital’] a financial advantage, namely a credit of $30,100,000, to a National Australia Bank [‘NAB’] account ending 64213 [‘the NAB account’] in the name of LBA Capital, namely by falsely representing various matters to JB Asset Management [‘JBAM’] and KB Securities Co Ltd [‘KB Securities’] as set out in Schedule 1 to these reasons, contrary to section 82(1) of the Crimes Act 1958 (Vic) [‘the Act’];
ii. Charge 2: On 5 April 2019, by deception, on an occasion other than that described in Charge 1, you dishonesty obtained for LBA Capital a financial advantage, namely a credit of $8,494,500 to the NAB account in the name of LBA Capital, namely by falsely representing to JBAM and KB Securities various matters as set out in Schedule 2 to these reasons, contrary to section 82(1) of the Act;
iii. Charge 3: Between 21 May 2019 and 6 June 2019 you used false documents as set out in Schedule 3 to these reasons, which were, and you knew to be, false, with the intention of inducing the representatives of JBAM and KB Securities to accept them as genuine, and by reason of so accepting them, would do or not do some act to the prejudice of JBAM and KB Securities, namely releasing credit to LBA Capital contrary to section 83A(2) of the Act;
iv. Charge 4: On 4 July 2019, you used false documents as described in Schedule 4 to these reasons which were, and which you knew to be, false, with the intention of inducing the representatives of JBAM and KB Securities to accept them as genuine and by reason of so accepting them, would do or not do some act to the prejudice of JBAM and KB Securities, namely releasing credit to LBA Capital, contrary to section 83A(2) of the Act.
The maximum penalty for the offence of obtaining financial advantage by deception is 10 years’ imprisonment. The maximum penalty for the charge of using false documents is also 10 years’ imprisonment.
Background
The complete description of your offending is lengthy and complex and is set out in considerable detail in the Revised Summary of Prosecution Opening to these proceedings (Annexure A). The following represents a summary of your offending for the purpose of sufficiently expressing these reasons today. The 34‑page written summary of prosecution opening in this matter has been appropriately redacted and annexed to these reasons.
In short compass, at material times you were the sole director and secretary of LBA Capital, a company registered with the Australian Securities and Investment Commission [‘ASIC’] on 28 August 2018.
Prior to your offending, during August 2018, you engaged lawyers at Mills Oakley Lawyers to seek advice regarding the status of LBA Capital as a registered provider of Specialist Disability Accommodation [‘SDA’] within the National Disability Insurance Scheme [‘NDIS’]. You received that legal advice contained in a letter dated 21 August 2018.
During late 2018, KB Securities, a South Korean financial institution that conducts business by receiving funds from individual and corporate investors and managing those funds as trustee, became aware of an investment opportunity in Australia related to the purchase and supply of NDIS approved housing. Representatives from JBAM and KB Securities travelled to Australia in early 2019 to discuss this opportunity and conduct due diligence and meetings with LBA Capital. During early 2019, KB Securities and JBAM, a South Korean asset management company, subsequently received many false documents from you in relation to this investment opportunity.
At a meeting on 29 January 2019 with KB Securities and representatives of LBA Capital, which meeting included you, representations were made about the proposed use of the funds to be provided, in particular, to acquire completed NDIS‑compliant apartments, and that the funds would only be used for this purpose. Furthermore, acquired funds would be held in an escrow account that could only be drawn down by LBA Capital after satisfying conditions precedent that would be identified in a loan agreement. JBAM representatives also travelled to Australia in February 2019, to carry out due diligence, and attended meetings with you at the LBA Capital office and the NAB branch in Richmond, where JBAM’s role and the operation of the escrow account were discussed. You also showed the JBAM representatives property in Hall Street, Moonee Ponds, that was intended to be purchased. During this visit you explained how the apartments and a pool would be suitable for people with disabilities. JBAM and KB Securities decided to proceed with the investment following these visits.
A complete chronology of events is set out the Revised Summary of Prosecution Opening in Annexure A.
In short, it is alleged that between 22 March 2019 and 14 June 2019 you entered into a series of eight investment finance agreements with KB Bank Pty Co Ltd [‘KB Bank’]. KB Bank is a company related to KB Securities.
Your company, LBA Capital entered into all the alleged agreements with KB Bank, underwritten by KB Securities, with JBAM engaged as the asset manager. These agreements, and the amounts involved, which together totalled $394,740,000 are set out in the table below:
| Date | Agreement | Amount | |
| 1 | 22 March 2019 | ‘Hall Street Agreement’ JB Hall Street Private Fund1 | $30,100,000 |
| 2 | 29 March 2019 | ‘Margaret Street Agreement’ Margaret Street Private Fund1 | $8,500,000 |
| 3 | 29 April 2019 | ‘Orrong Road & Collins Street Agreements’ JB Australia NDIS Private Fund1 | $124,300,000 |
| 4 | 2 May 2019 | ‘Orrong Road & Collins Street Agreements’ JB Australia NDIS Private Fund1 | $32,240,000 |
| 5 | 4 June 2019 | ‘Forge Agreement’ JB Forge Private Fund1 | $15,900,000 |
| 6 | 11 June 2019 | ‘Australia 108 Agreement’ JB Australia 108 Private Fund1 | $22,200,000 |
| 7 | 14 June 2019 | ‘Queensland/Armadale Agreement’ JB Australia NDIS Private Fund2 | $60,000,000 |
| 8 | 14 June 2019 | ‘Queensland/Docklands Agreement’ JB Australia NDIS Private Fund3’ | $101,500,000 |
| Total | $394,740,000 | ||
Circumstances of the offending
The prosecution case is that to fulfil the above agreements, you forwarded numerous documents via email to KB Securities and JBAM between April and July 2019. The companies then transferred funds into a joint escrow account which you could then access to complete the property purchases.
The prosecution case is that over the course of five transactions between April and July 2019, KB Securities and JBAM transferred $394,740,000 to the escrow account, each transaction being facilitated in response to the false documentation you provided. Despite this larger figure, only the transactions pertaining to the Hall Street and Margaret Street purchases are the subject of charges 1 and 2, totalling $38,600,000. This is because, on or after 5 April 2019, it is alleged that you supplied false documents that purported to evidence the establishment of a trust between Perpetual Ltd [‘Perpetual’] and LBA Capital. Perpetual is a financial services company that provides investment management, wealth advice and corporate fiduciary services. However, no such trust was established.
An employee of one of the victim companies ultimately became aware of the non‑existence of the trust, and realised the falsity of the documents you supplied. The prosecution accepts that it cannot prove beyond reasonable doubt that the victim companies were deceived by such documents, and therefore it is not alleged that the funds transferred after 5 April 2019 were transferred as a consequence of your deceptive conduct.
Ultimately, none of the properties listed in the table above were purchased. The prosecution case is that you had made both oral and documentary representations to the victim companies that were false and/or misleading.
As above, an escrow account was established with NAB into which the victims’ transferred funds which were released to you after preconditions for release were satisfied. You were then able to transfer monies from the escrow account to the LBA Capital accounts. On 12 March 2019 you opened an account in the name of LBA Capital Pty Ltd, to which you were the sole signatory. You transferred a total of $238,313,151.55 from the escrow account to this account during the offending period.
On 6 May 2019 you opened up a further bank account in the name of LBA Capital Pty limited, to which you were initially the sole signatory. You transferred a total of $156,540,000.00 from the escrow account to this account during the offending period.
Furthermore, the prosecution case is that the legal opinion letter of 21 August 2018 provided by Mills Oakley lawyers was altered by you on several occasions, including 18 February 2019, 18 March 2019, 21 March 2019, 4 April 2019 and 24 April 2019. The lawyers who drafted and/or signed the original letter have confirmed they were not aware of these amendments and that the changes were not their work. These amended copies of the advice letter containing the altered information were forwarded to the victims along other false documents as part of the scheme to obtain the relevant finance.
Despite representations to the contrary in the documents provided by you to the victims, investigations revealed that:
(a) LBA Capital had no registration or commitment from the NDIS programme;
(b) there were no partnerships between LBA Capital and any developers; and
(c) a number of named purported members of the Board of Management had not been engaged by LBA Capital, and although genuine people in other areas of industry, had no connections to LBA Capital, and in one instance one such individual was not a director of the NDIS, as claimed in the false documents.
The complex detail of the four charges is also set out in the Revised Summary of Prosecution Opening, which has been attached as Annexure A to this judgment.
Procedural history
It turns out your offending was not discovered by the victim companies until August 2019, soon after which point civil proceedings were commenced against you. I note that the Court has been informed that the parties to the civil proceedings have reached a settlement for the repayment of funds.
Following a referral by a firm of solicitors (other than the one previously mentioned), investigators from the Victoria Police Fraud and Extortion Squad commenced an investigation into your alleged offending. On 12 March 2020, investigators executed a number of search warrants at various locations where documents, electronic devices, a telephone, and computer were seized. Investigations revealed numerous emails with attachments sent by you to KB Securities and JBAM as part of the investment finance applications process. Investigations revealed many of the documents relied on by you to obtain payments into and released from the escrow account were false or misleading. There were examples of signatures being forged or cut and pasted from other documents or made up entirely to make it appear there had been legitimate signing by official company representatives.
A Victoria Police forensic accountant analysed the bank accounts held by LBA Capital and controlled by you. An analysis of funds obtained by deception and/or through the use of false documents between 5 April 2019 and 20 August 2019 revealed:
(a) a total of $1,651,500.00 had been transferred to your wife’s bank account, which included transfers that discharged mortgages held with the NAB over two properties in Maribyrnong and Mount Macedon;
(b) amounts transferred to execute property purchases and pay for property development and loan arrangement fees relating to property not the subject of agreements with KB Securities and JBAM, as well as to a law firm for the purchases of property settlements, the amounts totalling approximately $54 million;
(c) on 30 August 2019 the Mount Macedon property was transferred into your wife’s name; and,
(d) on 3 September 2019 the Maribyrnong property was transferred into your wife’s name, as the sole proprietor.
You were offered an interview with police by letter dated 10 November 2020, which you declined, and you were subsequently charged on summons on 10 March 2021.
Following a contested committal in May 2022, negotiations took place in respect of the present matters with resolution being reached. You pleaded guilty and were arraigned before this Court on 27 June 2023. You remained on trial bail until the conclusion of the plea hearing.
The materials relied on and tendered at the plea hearing in this matter include the following:
(a) By the prosecution:
(i) Revised Summary of Prosecution Opening of plea dated 9 November 2023;
(ii) Victim Impact Statement of Chang Lee dated 5 October 2023;
(iii) Prosecution sentencing submissions dated 19 October 2023;
(iv) Further prosecution sentencing submissions dated 18 March 2024;
(b) By your counsel:
(i) Defence submissions dated 6 October 2023;
(ii) Plea book containing various documents including submissions, reports and character references, filed 9 October 2023;
(iii) Supplementary report of Patrick Newton dated 12 October 2023;
(iv) Additional character reference of Jiroo Eoh dated 14 October 2023;
(v) Additional character reference of the accused’s wife, dated 2 November 2023;
(vi) Further plea submissions dated 28 March 2024.
Victim Impact Statement
The Court received a Victim Impact Statement from Chang Lee, the Managing Director and Division Head of JBAM. Mr Lee summarises the financial and non‑financial impacts of your offending.
It is evident from this statement that the victim companies have suffered significant financial harm as well as reputational damage. Mr Lee states that substantial costs have been incurred to recover the funds, since August 2019 when JBAM and Kookmin discovered they had been the victims of a sophisticated fraud. Furthermore, civil proceedings are being brought against the companies in South Korea; a regulatory investigation is being undertaken by the South Korean Financial Supervisory Service; and, a criminal complaint and investigation by the South Korean prosecutorial service is underway. A significant amount of time, money and resources have been dedicated to dealing with the fallout of your offending.
Mr Lee describes your offending as sophisticated and having required planning. It significantly disrupted the operations of JBAM, and diverted resources that could have been better deployed on the business’ core strategies.
I have taken this impact, and the significant damage caused by your offending, as set out by Mr Lee, into account in deciding the sentence to be passed.
Personal circumstances
You are now 63 years of age. You were born in 1960 to a Greek family in Cyprus, and emigrated to Australia as a child. It appears you had a stable upbringing, doing well in school in Melbourne, and attending the University of Melbourne to study a Bachelor of Arts and later postgraduate qualifications in education. Clearly, you have been highly educated.
You have been married to your wife, LV, for 30 years and have two daughters. Your wife and daughter have both suffered from significant health issues which are not appropriate to discuss in detail in these reasons in deference to their privacy and in light of the suppression order made on 24 May 2024. Your family have suffered significant stress and anxiety in relation to these and other proceedings pertaining to your offending.
You also have a solid and high achieving work history. Briefly, you commenced your working career as an emergency foster care coordinator, and then worked as a social worker for Footscray City Council. You were later a policy officer for the Department of Health and Human Services.
In the late 1990’s, you moved into consulting work with various large firms, ultimately becoming a partner at KPMG in 2008. You have also worked at in‑house commercial roles, before you established the LBA businesses.
With respect to your physical health, the Court has been provided with a report authored by Dr Abayomi Dosunmu, your regular general practitioner, and I have had regard to this report. You have a history of heart problems, which resulted in hospitalisation in both Dubai and Melbourne in 2017. This was clearly a critical incident in your life, and your wife speaks of how you were affected and you became moodier, more withdrawn, with lower energy.
With regard to your mental health, I will address this issue below when considering the Verdins[1] factors advanced on your behalf. I note that your counsel have submitted that you have a mental health history. However, I note in passing that there is little supporting material to inform the Court about your mental state from a historical perspective.
[1]R v Verdins (2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA) (‘Verdins’).
Criminal history
You have no criminal history, a significant factor weighing in your favour.
Medical and psychological reports
A number of medical and psychological reports were provided for the Court’s consideration. None of the authors were called to give evidence at the plea hearings.
Psychological reports
Patrick Newton
A report authored by psychologist Patrick Newton dated 3 September 2023, and a supplementary report dated 12 October 2023, were provided to the Court.
You attended three consultations with Mr Newton between June and December 2022. He conducted various tests on your mental status, including your mood, thought processes, degree of insight and personality functioning. You described an extended history of mood disturbance to Mr Newton, but confirmed that prior to your arrest you had not engaged in any mental health treatment. You report a history of poor compliance with medication, since consulting with a psychiatrist for the first time in 2020, which I will discuss in more detail below, and have not supplemented this mood‑stabilising medication with any psychological treatment. You reported a history of using alcohol to manage your mood related symptoms.
With respect to your offending, you reported to Mr Newton that you had:
… gilded the lily a bit with regard to the financing and governance of the projects.
Mr Newton reported that when international investors became involved,
he did not rectify these issues; rather he continued to maintain a series of fictions about the projects including the involvement of (among others) government, other developers. large companies and financial backers.
Mr Newton discusses your depressive phases, the dominant tone across his consultations with you, and your hypomanic phases, ‘dominated by a reduced need for sleep, an increase in activity level, distractibility and a subjective feeling of power, acumen and creativity’. Mr Newton reports:
While these effects are consistent with the disorder from which Mr Charisiou suffers, it is also clear that, even taking them at their highest, their impact would have been relatively mild. This is inherent to the condition itself as well as being reflected in Mr Charisiou’s ability to carry out the intrinsically complex and detailed tasks which were necessary to commit the offending itself. Certainly, the effects of his condition did not adversely affect his ability to understand the wrongfulness of his conduct or his culpability.
Mr Newton states that you meet the criteria for bipolar affective disorder (type II) [‘Bipolar II Disorder’] and currently, the criteria for a major depressive episode. He reports that you are of above average intelligence and the dysfunction in your personality is not severe. He considers it is plausible that you were suffering the effects of Bipolar II Disorder at the time of the offending, which would have ‘reduced [your] ability to reflect on [your] actions with calm composure… [and] skewed [your] judgment so that [you] would have underestimated the likely difficulties of a given course of action while simultaneously overestimating the potential for managing challenges and resolving problems’. However, Mr Newton opines that the effects would have been ‘quite mild’ and ‘would not have obscured [your] understanding of the wrongfulness of [your] conduct or impaired [your] ability to understand the culpability inherent in the deceptions [you] committed’.
Mr Newton describes the disorder as such:
This is a major mood disorder characterised by recurrent depressive episodes (which dominate the clinical presentation) punctuated by episodes of hypomanic (elevated) mood. Mr Charisiou suffers this condition at a mild level of severity relative to other sufferers of the complaint. (It should be noted that bipolar disorder (type II) is itself a less severe variant of bipolar disorder type I. Specifically, it is NOT characterised by fully‑fledged manic episodes and is not typically accompanied by severe symptoms such as psychosis, delusions or hallucination.)
In his supplementary report, Mr Newton clarifies that your Bipolar II Disorder is characterised by depressive phases, in which your thought processes slow, causing you to experience some difficulties with clear decision making, and hypomanic phases, in which you experience an increase in impulsivity and ‘a tendency to make arbitrary and unconventional connections between disparate pieces of information’. Mr Newton writes that these cognitive and emotional effects, combined with impaired interpersonal functioning, are likely to have had an effect on your judgment at the time of the offending, though the intensity of the effect would have been mild but noteworthy.
Associate Professor Andrew Carroll
A report by Associate Professor Andrew Carroll, forensic psychiatrist, dated 21 August 2023 was also provided to the Court. Associate Professor Carroll examined you on 15 August 2023.
You gave Associate Professor Carroll an account of significant mood fluctuations from adolescence onwards. In his opinion:
…the criteria for a Type 2 Bipolar Disorder (Bipolar II Disorder DSM‑5 296.89) are met and it is likely that this illness had its onset when he was a young man: as is very commonly the case with this disorder, he was not formally diagnosed until many years later.
The overall picture of your personality evolution indicates a mild personality disorder according to Associate Professor Carroll.
As to the relationship between your condition and the alleged offending, I highlight the following findings of Associate Professor Carroll:
(a) regarding your Bipolar II Disorder, in 2019 you were not actively psychotic or pathologically disorganised at any point, but gave a convincing report of being ‘affected by symptoms amounting to clinical hypomania for several months’ up until your return from South Korea, such as grandiosity and engaging in activities with a high potential for adverse consequences;
(b) the hypomanic state you were in throughout this period did not lead you to not know in a cognitive sense that your behaviours were wrongful, but your ‘hypomanic grandiosity and pathological overconfidence would have likely impaired [your] capacity to properly appreciate at an emotional level the moral wrongfulness of [your] behaviours and the seriousness of [your] conduct’;
(c) there is therefore a connection between both the Bipolar II Disorder, your mild personality disorder and the offending;
(d) you are at ‘some risk’ of deteriorating in custody, but have shown a good response to pharmacotherapy, and your long term prognosis for Bipolar II Disorder would not be adversely affected by imprisonment, provided you choose to remain on medication; and
(e) there is nothing to suggest that your diagnoses would adversely your ability to cope with imprisonment.
In terms of the severity of your condition, Associate Professor Carroll concludes that at the time of assessment, ‘he appears to be suffering a depressive episode of mild to moderate severity which is partly secondary to the stress of awaiting court’. With respect to the period of offending, Associate Professor Carroll notes it is ‘difficult to be entirely certain as to [your] true state of mind since [you were] not clinically evaluated at any point in 2019’ but (emphasis added):
Regarding his Bipolar II Disorder; between February to April 2019:
§There is nothing to suggest that the effects of his hypomania led him to not know in a cognitive sense that his behaviours were wrongful i.e. that he was creating documents that were deceptive for the purposes of financial gain.
§His hypomanic grandiosity and pathological overconfidence would have likely impaired his capacity to properly appreciate at an emotional level the moral wrongfulness of his behaviours and the seriousness of his conduct.
§His judgment was therefore significantly impaired because of mental illness.
128) Regarding his personality disorder, his traits of “disinhibition” may have further aggravated his poor judgement when in a hypomanic state.
In Associate Professor Carroll’s opinion, your risk of reoffending is low and prospects of rehabilitation are high.
Dr Loretta Evans
A neuropsychological report has been prepared on your behalf by clinical neuropsychologist Dr Loretta Evans, dated 11 August 2023.
Dr Evans performed a range of psychological tests to determine your cognitive functioning levels. Based on the profile produced, it is Dr Evans’ opinion that there is no evidence you experience any underlying neurocognitive condition or dementing illness at the time of writing.
In response to the question posed as to what neuropsychological conditions you have now, or at the time of offending, Dr Evans reports (emphasis added):
Whilst it is acknowledged that Mr Charisiou does demonstrate some attentional inefficiency and lowered working memory capacity (that possibly impacts on new learning), these can be better accounted for by other factors, namely, the presence of a chronic mood disorder. Given the subtlety of Mr Charisiou’s attention difficulties, relatively to intellect, and the overlay of Bipolar Affective Disorder, together with the presence of an acute stressor in the form of his impending legal proceedings and seemingly long standing personality factors, I am not satisfied that the subtle inefficiencies demonstrated are: (1) outside the limits of normal variation, or (2) representative of a persistent and chronic pattern of impairment. When taken together, it is my opinion that Mr Charisiou does not meet any relevant DSM‑V criteria required for a formal diagnosis associated with cognitive decline and given his history, any subtle cognitive inefficiencies, can be better accounted for by other factors (namely: mood, anxiety, and possibly maladaptive elements of personality). Hence, there is insufficient evidence to implicate appreciable neurocognitive compromise; and nor is his cognitive function considered to have been a causal, or contributory factor, to the current offending.
Medical reports
Dr Abayomi Dosunmu
Dr Abayomi Dosunmu of Edgewater Medical Clinic notes that you have been a patient of the clinic since September 2019. He states that your main chronic illnesses on record are a heart condition and Bipolar Disorder. The doctor writes that you had your aortic valve replaced during surgery in Dubai in 2017, and have been under the care of a cardiologist since.
You have been treated with mood stabilisers and antidepressants, and were referred to a psychologist in February 2021. Dr Dosunmu states that the last time you were reviewed by him, you were clinically stable, but could have periods of depressed mood, low motivation and energy, anxiety and hypomania. With respect to your heart condition, you can occasionally experience symptoms such as dizziness, chest pain shortness of breath, palpitations and reduced consciousness.
Dr Dosunmu reports that it is highly likely that the stress of prison could aggravate your health conditions.
Dr Raid Al Humrany
Dr Dosunmu referred you to consultant psychiatrist Dr Raid Al Humrany, who assessed you in mid‑2020. A letter written by Dr Al Humrany to Dr Dosunmu was provided to the Court. It states that you described a history that suggested ‘Bipolar Spectrum/Bipolar Affective Disorder Type 2/depressive side’ with on and off episodes of hypomanic/manic sides, alternating with depressive elements, which he described as running for many years.
Dr Al Humrany devised a management plan that included putting you on the mood stabiliser Seroquel, attending weekly appointments with the psychiatry service, and possibly adding a further medication (benzodiazepine) to cover any withdrawal symptoms from alcohol abstinence if needed.
Verdins and mental impairment
As already noted, on your behalf, reliance on Verdins[2] was advanced in light of your diagnoses. I therefore turn to a consideration of the applicability of the principles in that case. The six propositions are:[3]
[2](2007) 16 VR 269 (Maxwell P, Buchanan and Vincent JJA).
[3]Ibid 276 [32] (Maxwell P, Buchanan and Vincent JJA).
Impaired mental functioning, whether temporary or permanent (“the condition”), is relevant to sentencing in at least the following six ways:
1.The condition may reduce the moral culpability of the offending conduct, as distinct from the offender’s legal responsibility. Where that is so, the condition affects the punishment that is just in all the circumstances; and denunciation is less likely to be a relevant sentencing objective.
2.The condition may have a bearing on the kind of sentence that is imposed and the conditions in which it should be served.
3.Whether general deterrence should be moderated or eliminated as a sentencing consideration depends upon the nature and severity of the symptoms exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of sentence or both.
4.Whether specific deterrence should be moderated or eliminated as a sentencing consideration likewise depends upon the nature and severity of the symptoms of the condition as exhibited by the offender, and the effect of the condition on the mental capacity of the offender, whether at the time of the offending or at the date of the sentence or both.
5.The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
6.Where there is a serious risk of imprisonment having a significant adverse effect on an offender’s mental health, this will be a factor tending to mitigate punishment.
Defence submissions on Verdins
It was submitted by your counsel that, on the basis of Associate Professor Carroll’s report in particular, your mental impairment should:
(a) reduce your moral culpability for the offending (namely, limb 1 of Verdins);
(b) reduce the weight to be given to deterrence as a principle of sentencing (limbs 3 and 4 of Verdins);
(c) factor into the considerations surrounding the hardship of prison (limb 5 of Verdins).
It was submitted, in relation to limb 1, that your diagnoses at the time of the alleged offending impaired your ability to exercise appropriate judgement, impaired your ability to make calm and rational choices, made you disinhibited, impaired your ability to appreciate the wrongfulness of the conduct, obscured your intent to commit the offence, and contributed causally to the commission of the offence.
Your counsel have submitted that whilst your mental impairment (namely Bipolar II Disorder) is subtle, it was capable of having a dramatic effect on your behaviour, such that it is unlikely that without it the offending would have occurred. The report of Associate Professor Carroll was relied on in this regard.
Oral submissions were not advanced in any level of detail surrounding the other limbs of Verdins, beyond your counsel stating that in relation to the third limb, there is a more than reasonable likelihood that your mental impairment contributed to your offending. General reliance was placed on the reports of Associate Professor Carroll and Mr Newton.
Prosecution submissions on Verdins
The prosecution accepts that you have a diagnosis of Bipolar II Disorder and that you experience both hypomanic and depressive phases. Further, it is accepted that this disorder was likely to have had an effect upon your judgement at the time of the offending. However, the prosecution contended that the intensity of that effect was mild but noteworthy, as reflected in your ‘ability to carry out the intrinsically complex and detailed tasks which were necessary to commit the offending itself’. It was submitted that Mr Newton and Associate Professor Carroll did not go so far as to suggest that you did not appreciate the wrongfulness of your conduct.
In this regard, the prosecution submitted that you were clearly aware your actions were wrong, given their high degree of sophistication, and the level of action and planning involved. It was noted that your business skills were not hampered by your mental impairment, but that following the period of hypomania between February and April 2019, you had a sudden insight into your behaviours.
In short, the prosecution submitted that your moral culpability may be reduced to a ‘very limited extent’ pursuant to limb 1.
Regarding the application of limbs 3 and 4, the prosecution contended that you remain an appropriate vehicle for general deterrence despite your diagnoses (limb 3). However, it was conceded that the weight to be given to general deterrence ‘may be reduced to a very limited extent’, depending on the Court’s view of the psychological material. However, it is acknowledged that specific deterrence is of less significance in your case (limb 4).
Finally, the prosecution accepted that due to your ongoing mental health issues, your experience of custody is likely to be more burdensome, pursuant to limb 5.
I will deal with the principles of Verdins in turn.
Analysis of Verdins
Limb 1: Reduction of moral culpability
To satisfy limb 1 of Verdins, the evidence must establish on the balance of probabilities that the offender’s mental condition contributed to the offending in such a way as to render the offender less blameworthy for the offending. This is generally (but not always) treated as an issue of causation, that is, the mental condition must be causally linked to the commission of the offence. In some instances, it may be sufficient that there is a ‘realistic connection’ between the two, without necessarily establishing causation.[4]
[4]Langton v The Queen [2022] VSCA 79 [33] (Maxwell P, McLeish and Macaulay JJA).
The expert reports of Associate Professor Carroll and Mr Newton both speak to this factor. Mr Newton opines that there is a connection between both your Bipolar II Disorder, your mild personality disorder and, your offending.
Similarly, Associate Professor Carroll states you were actively hypomanic for many months, and concludes there is a realistic connection between your mental disorders and offending, and that they were significant contributory factors to the offending.
Your judgment appears to have been to some extent impaired as a result of these mental impairments. I am satisfied on the basis of these reports that your mental condition was ‘realistically connected’ to the commission of the offence. Limb 1 of Verdins therefore applies. Its application is, however, limited. Further, clearly during some if not all of the offending conduct, you knew that your actions were illegal. It is therefore difficult for the Court to be satisfied that but for your mental impairment, you would not have undertaken the actions and behaviours underpinning your offending.
This leads me to accept the prosecution’s characterisation of your level of impairment with regard to this limb of Verdins. You were clearly aware that your actions, which were highly sophisticated and required significant planning and preparation, were wrong. A high level of skill and knowledge was required to carry out your offending. I am unable to accept your counsel’s characterisation of your scheme as ‘harebrained’. Whilst it may be that the offending would eventually have been discovered at some point, I agree with the prosecution’s submission that it was hugely successful offending, amassing millions of dollars, and being perceived as legitimate by multiple businesses.
The Court also notes the inherent weaknesses in the evidence surrounding your mental impairments. As above, none of the expert report writers were called to give evidence. I note that your diagnosis of Bipolar II Disorder is largely based on self‑reporting. You do not have a lengthy or documented history of this disorder, borne out in the medical records, although I accept it may have had its onset when you were a young man. Despite these diagnostic difficulties you experience, you appear to have been able to achieve professionally and academically.
Taking all the matters bearing on this issue, I am not satisfied that there can be any substantial reduction of your culpability owing to your impaired mental functioning. The reduction is at a minor level. Whilst your judgment was impaired, and you had a reduced ability to reflect on your actions with calm composure, you knew what you were doing was wrong and indeed, your keen intelligence over a lengthy period enabled you to successfully offend for as long as you did.
Limbs 3 and 4: Reduction of general and specific deterrence
There are difficulties with finding that limbs 3 and 4 of Verdins are enlivened.
I accept that the episode of hypomania described by Associate Professor Carroll would have affected your judgment to some limited degree. Despite this, you were aware, even during this period, that the documents you were creating were false, and you could appreciate the wrongfulness of this behaviour. It is unclear how your impairment materially diminished your ability to reason. Had your thinking and actions been completely irrational and senseless, I am of the opinion that it would have been unlikely you were capable of the inherently sophisticated fraud you took part in.
Whilst it is not necessarily a precondition to the application of the third or fourth limbs that there be a nexus between the mental impairment and the offending,[5] I am not satisfied on the basis of the evidence before the Court that your impairment makes you an inappropriate vehicle for either specific or general deterrence.
[5]A person suffering from a serious psychiatric illness or a mental impairment or abnormality is generally not an appropriate vehicle for general or specific deterrence, whether or not the illness played a part in the commission of the offence: R v Tsiaras [1996] 1 VR 398, 400 (Charles, Callaway JJA and Vincent AJA); R v Verdins (2007) 16 VR 269, 271 [5].
Accordingly, I do not consider that the sentencing objective of general deterrence should be moderated or limited to any significant degree based on the evidence before the Court. Despite this, I have considered your mental impairment as part of the broader mosaic of factors put to the Court in mitigation. Further, as I will indicate, I do not regard specific deterrence to play a significant role in the sentences to be passed.
Limbs 5 and 6: Effect of imprisonment
Consistently with limb 5 of Verdins, particular consideration must be given to the effect of any custodial sentence on a person with a mental health condition.[6] Where a sentence will weigh more heavily on the offender due to their condition, this will be a relevant factor when determining the appropriate sentence.
[6]See, for example, Atanackovic v The Queen (2015) 45 VR 179, 218 [154] (Weinberg, Kyrou and Kaye JJA).
The prosecution conceded in written submissions that it is open to me to find that the fifth principle of Verdins is enlivened here.
As to limb 6, this was not advanced in oral submissions. I note that Associate Professor Carroll states at paragraph 131 of his report:
Except for the fact that his condition is at significant risk of deterioration in the event of imprisonment, there is nothing to suggest that his conditions would adversely his ability to cope with imprisonment.
And later, at paragraph 133:
The overall long‑term prognosis for his Bipolar II Disorder however would not be adversely affected by imprisonment, provided he chooses to remain on his medication.
I acknowledge that a custodial sentence may have a more burdensome effect on you than someone that does not live with the mental health conditions Associate Professor Carroll and Mr Newton discuss in their reports. These conditions are likely to interfere with your adjustment and functioning within a custodial facility. I have taken these opinions and conclusions into account to a limited degree in moderating the sentence to be imposed.
Discussion
Sentencing factors
Section 5(2) of the Sentencing Act 1991 (Vic) [‘the Sentencing Act’] sets out a series of factors which a court must have regard to in sentencing an offender.
It is well accepted that the weight and emphasis given to any one factor by a sentencing court will vary according to the facts and circumstances of each case.[7]
[7]See Wong v The Queen (2001) 207 CLR 584, 612–613 [77]–[78] (Gaudron, Gummow and Hayne JJ); Markarian v The Queen (2005) 228 CLR 357, 373–375 [37]–[39] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Muldrock v The Queen (2011) 244 CLR 120, 128–129 [18]–[19] (French CJ, Gummow, Hayne, Heydon, Crennan, Kiefel and Bell JJ).
Maximum penalty
As above, the maximum penalty for obtaining financial advantage by deception is 10 years’ imprisonment. The maximum penalty for using false documents is also 10 years’ imprisonment.
Section 5(2)(ab) of the Sentencing Act provides that a court must have regard to the standard sentence, if any, for the relevant offence. The aforementioned are not standard sentence offences.
I note in passing that the prosecution confirmed in oral submissions that Charge 3 does not represent a rolled‑up charge and is advanced as a between‑dates charge.
Seriousness of the offending
The prosecution submits your offending was extremely serious, particularly given your actions required a high degree of sophistication, planning and preparation, and given you were likely to have been aware your actions were wrong. You did not simply edit documents; you forwarded and relied on many documents containing false information; you made representations, attended meetings and the like. It was also submitted that, whether or not your offending was motivated by greed, ambition or otherwise, it involved a breach of the trust reposed in you by the victim companies and their representatives. You clearly intended, in creating the false documents the subject of charges three and four, to induce the victim companies to act to their detriment, namely to release further credit under the loan agreements, and this intention came to fruition, with you ultimately obtaining over $38 million.
The prosecution also submits that you transferred money to your wife’s account and used funds for the purposes of unrelated property settlements, indicative of personal enrichment. Further, you involved other individuals in your offending, namely your brothers, and a firm, ‘GPZ Legal’.
Your counsel concede your offending is grave, as large sums of investor credit were advanced to the project escrow account. However, it was submitted that the gravity of your offending should not be assessed by solely considering the volume of the false documents and the resultant amount of credit advanced by the victim companies. In short, and with reference to the case of De Simoni,[8] your Counsel submit that you ought not be punished for a ‘$395 million fraud’ given the total amount of funds the subject of the fraud charges is significantly less. I accept this submission and have applied this in determining the sentence to be passed on you.
[8]R v De Simoni (1981) 147 CLR 383 (Gibbs CJ, Mason, Murphy, Wilson and Brennan JJ) (‘De Simoni’).
It has also been emphasised on your behalf that the offending occurred over a three month period during which you were in a hypomanic state, and you have since demonstrated a developing insight into your offending.
As to the objective gravity of your conduct, yours was an example of grave offending. The monetary amounts involved are extremely high when compared to past cases involving the commission of similar offences, though I have not considered this factor divorced from the broader picture of your offending conduct. The victim companies were taken advantage of and misled. The documents they were presented with looked genuine, and your victims had no reason to doubt your legitimacy as a businessman. You kept up the charade for months without detection. You have, in essence, undermined some central tenets of doing honest business, to the score of millions of dollars. Whilst you did not obtain a significant personal benefit, in the sense of using the money you derived to fund a lavish lifestyle or gambling addiction as examples, the amounts of money discussed in past comparative cases I have considered do not come near to approaching the scale of the funds involved in this case.
Taking these objective factors into account, and the case law in the area, I assess your offending as a very serious example of obtaining financial advantage by deception, and of using false documents.
Following the money, and whether the offender personally profited from the wrongdoing
Relevant to the sentencing exercise is whether you personally profited from the fraud, or whether the money was simply held in accounts before ultimately being repaid to the victim companies.
I note that at the time of the plea hearing, the Court was informed by your counsel that around $360 million of the funds the subject of transactions (totalling $394 million) had been recovered. You had signed rights to the plaintiff to continue to pursue amounts in the region of $28 million (referred to as ‘potential post‑settlement recoveries’, which is dependent on the sale of further properties). That leaves about $6 million that will not be recoverable. This money is unaccounted for. I note, however, that there has been complete restitution of the $38,594,500 the subject of the obtaining financial advantage by deception charges.
It is agreed between the parties that money was advanced for the payment of two mortgages of your own personal property (a total of $1.6 million being transferred to your wife’s account for this purpose). This is a clear element of personal profit that you gained as a result of the fraud.
A total of $54 million was also transferred from accounts held by LBA Capital and controlled by you to execute property purchases and pay for property development and loan arrangement fees (notably, including for properties not the subject of agreements with JBAM and KB Securities). The prosecution cannot positively assert that these transactions were made for your benefit, or whether they were for personal or business properties, though noting they were outside the scope of any agreements, and that ultimately you still derived a benefit given these purchases were utilised for your business. It was put on your behalf that this money was nonetheless spent on the purchase of other properties with a view to development and providing a return to the victims.
Ultimately, it is somewhat opaque as to what this money was used for. I accept, given the medical evidence about your hypomanic state, the middle ground, that you may have still thought that you could invest in other properties outside of the agreement and manage to provide a return to the investors in the end. I also, however, accept that this money was spent for business purposes that you were set to benefit from, as the director of LBA Capital.
Culpability and degree of responsibility
Pursuant to section 5(2)(d) of the Sentencing Act, a court must have regard to an offender’s culpability and degree of responsibility. I have already discussed your degree of culpability at length in regard to the application of the principles articulated in the case of Verdins.
You were never deprived of the ability to understand the morally wrong nature of your actions. In fact, I consider that given your age and life experience as a businessman it is likely you acutely understood the effect your actions would have on the victim companies, and the inevitable mess that would eventuate when the fraud was detected.
I do not accept that your actions after the episode of hypomania during 2019 can be characterised as desperate attempts at trying to ‘fix’ the situation you had got yourself into. I am unable to accept that you found yourself ‘out of your depth’ in negotiating such complex deals, and I consider it is more likely that your skills and experience enabled you to perpetuate your fraudulent behaviour for as long as you did.
I have considered the question of when your intent to defraud the victim companies arose, and the nature of this intent, both of which are relevant to your level of culpability. With respect to the temporal question, the prosecution has submitted that, on the basis of the false communications you engaged in in January 2019, the intention to deceive commenced at some point in January 2019.
Your counsel take issue with this, arguing that there was a genuine desire for you to have a business relationship with KB Securities and JBAM, and properties were to be purchased, namely, Hall Street and Margaret Street as the basis of this commercial relationship. Following this point, it is submitted that it became clear to you that you were not going to be able to purchase the properties for the right price and within the timeframe, such that the ‘harebrained’ scheme, to pretend the properties had indeed been purchased and that everything had gone as planned, developed. The defence therefore puts that the dishonest intent arose after 15 February 2019, when it became apparent the properties could not be purchased on terms that made it feasible.
Ultimately I accept the prosecution’s position on this point. KB Securities and JBAM received much documentation over January 2019 that was false, and further, had a meeting on 29 January 2019 at LBA Capital with you, where representations were made that the funds obtained would only be used for acquiring completed apartments that were NDIS compliant. At this meeting, you also represented that funds would be held in the escrow account could only be drawn down by LBA Capital after satisfying conditions precedent that would be identified in a loan agreement.
In terms of what your intention was, there has been much discussion in this matter as to whether you ever had the intention to provide your investors a return. I refer to the discussion above about following the money and whether you personally profited from the fraud. It is not completely clear to me whether you ultimately intended to provide your investors a return, albeit not ultimately at the location and in the form outlined in the agreement. I consider it more likely that your intention developed into wanting to keep up the ruse as long as possible and try and patch up problems as they arose.
The question of your motive is also relevant in a matter such as the present. The Court does not have material before it surrounding your financial circumstances, such that it might be confidently found that you were acting out of desperation or the need to support your family. Your counsel have submitted that you were driven by the desire to go through with the deal, to get the project done and not fail, pointing to the pathological over‑confidence and hypomanic grandiosity the expert assessors explored.
Of course, greed may be another valid suggestion as to your motive. Given what I have already said above about how some of the defrauded funds were used, I consider it is likely to have been a combination of these factors that drove you to offend as you did. As a successful businessman, with an inflated sense of ego arising out of your hypomanic state, the prospect of recanting on the deal or publicly ‘failing’ yourself or your investors was likely an unattractive prospect.
I note that there has been some discussion in this matter regarding whether your offending, given the position you were in when dealing with the South Korean victim companies, can be described as a ‘breach of trust’. This was not advanced in the sense used in trusts law when fiduciary relationships exist, such as lawyer/client or employee/employer relationships, but in a broader sense wherein it might be said that you gained and betrayed the trust of the victim companies.
In reviewing some authorities in this area dealing with charges of obtaining financial advantage by deception, it is evident that a breach of a position of trust in the general sense, as distinct from a true fiduciary sense, can still amount to an aggravating factor in such instances.[9] I note, for example, in Wilson,[10] in which the respondent stole money from an elderly neighbour and was sentenced on nine counts of obtaining financial advantage by deception and two counts of obtaining property by deception, the court commented on the offender’s cultivation of a friendship of an elderly and vulnerable man and accepted that the offender exhibited high moral culpability in a protracted period of offending involving gross breaches of trust.
[9]See, for example, Director of Public Prosecutions v Wilson [2024] VSCA 48, [29]–[30] (Niall, Boyce and T Forrest JJA); Kenyeres v The King [2023] VSCA 25, [33] (T Forrest JA and J Forrest AJA) (‘Kenyeres’).
[10]Director of Public Prosecutions v Wilson [2024] VSCA 48 (Niall, Boyce and T Forrest JJA).
Your offending occurred in a true commercial context where the victim had full opportunity and means to carry out due diligence, and attempted to do so, as evidenced by a number of visits to Melbourne, engaging in meetings, and discussions with you, as well the provision of a number of documents by you to them. Your offending was sufficiently sophisticated to overcome and satisfy these initial due diligence opportunities until eventually irregularities were noticed which led to your dishonesty being exposed.
I acknowledge that the betrayal of trust that occurred is not of a classic fiduciary type, nevertheless, in the commercial context it still may be observed that effective commerce depends on honesty and trust between the participants, and in this sense I am satisfied that your betrayal of the trust of your victims in the present circumstances and context represents an aggravating feature of your offending.
I accept that your actions after the offending conduct, however, were relatively cooperative and tend towards demonstrating a level of insight into the gravity of your actions. I will say more about this later.
For these reasons, and given my earlier comments surrounding the first principle of Verdins,[11] I find your culpability and degree of responsibility to be within the middle range.
[11]See [70]–[76] above.
Mitigating factors
Resolution and guilty pleas
As already noted, you have pleaded guilty to the charges on the indictment and these pleas must be taken into account, which I have done. Procedurally, the matter has developed as follows. Following the discovery of the fraud by the victim companies, civil proceedings were immediately commenced. A warrant was executed at your home in early 2020 and you were charged on 11 March 2021. As above, a contested committal hearing proceeded on 11 March 2022 for three days. Negotiations to resolve the matter subsequently occurred and you pleaded guilty and were arraigned on 27 June 2023. The prosecution accepts that the matters explored at the committal influenced the ultimate plea resolution.
Your counsel have submitted your pleas of guilty should be regarded as early, and of high utilitarian value, given negotiations commenced prior to the filing of a defence response, the prosecution was regularly appraised with new materials, which facilitated a negotiation on which charges were to proceed, and any trial would have been lengthy, and involve voluminous materials and witnesses.
The prosecution concedes that whilst the plea was not made at the earliest possible opportunity, you are entitled to an appropriate reduction in the sentence imposed,[12] and it is evidence of remorse with a high utilitarian benefit given the complexity of the matter. I accept the above, particularly in this case, that your guilty plea has meant that the victim companies have been spared the inconvenience and stress of drawn out proceedings and trial, and the Court’s time and resources are saved. It is appropriate that you receive the benefit for your pleas of guilty on the above basis, albeit I am of the opinion that they did not occur at the earliest possible time.
[12]Sentencing Act 1991 (Vic), s 5(2)(e).
Additional assistance provided
The Court has been provided with subsequent information following the plea hearing in this matter, which must also be mentioned at this point.
Your counsel provided correspondence from Tony Hargreaves & Partners, to which is attached a letter from GPZ Legal dated 23 January 2024, regarding the civil settlement of matters arising out of your offending, between JBAM and LBA and others (JB Asset Management v LBA Capital Pty Ltd and Ors, in proceeding number S ECR 2019 03875). This proceeding was brought by the victim companies against a number of individuals and entities. You were the fifth defendant in this proceeding and have settled matters with the plaintiffs pursuant to a deed dated 22 May 2022. Following this, I accept that you have remained involved, in order to assist settlement negotiations and the assignment of rights. I also accept that you have agreed to provide ongoing assistance, as required. Your counsel submit that your assistance in these matters ought to be taken into account as evidence of your willingness to facilitate restitution of the funds to the victim companies. The value of this cooperation is submitted to be important in that it allows the plaintiffs benefits additional to those the subject matter of these criminal charges.
The prosecution also made further submissions in relation to this ‘further assistance’. The prosecution disputes that you have acted in your personal capacity to provide the further assistance noted but alternatively suggest you have, in your capacity as sole director of LBA Capital, attended meetings and corresponded with the company lawyer to ensure LBA Capital has a new director. In short, the prosecution submit that as the current director of LBA Capital, you are required by law to fulfil your duties, and therefore the extent of your actions is indicative of minimal remorse and should be given little weight in the sentencing exercise.
On the basis of the information provided by these lawyers, I am willing to accept that you have been cooperative in the settlement process. However, as the current director until the time you are sentenced to a period of imprisonment, you are essentially required by law to act in this way. Nevertheless, in circumstances where you could have declined to assist, and taken any consequences that might have followed, I acknowledge that this cooperation is ultimately helpful for your victims and affected companies. I have taken this assistance into account as contributing to your remorse, to which I now turn.
Remorse
Remorse is recognised as a mitigatory factor in sentencing.[13]
[13]Sentencing Act 1991 (Vic), s 5(2C).
It has been submitted on your behalf that your early guilty plea is evidence of remorse, as are the references and medical opinions provided. You expressed remorse to both Mr Newton and Associate Professor Carroll, noting however that at the time of your offending you did not see anything seriously wrong with your behaviour.
Mr Newton states that when you were asked about your response to the offending, you said:
It was massive wrongdoing and I just didn’t think of it as fraud: I was just giving them what they wanted and twisting the story to keep it going. My intention was that eventually I would somehow still give them a return.
Even though [the investors] didn’t do due diligence, I understand that I did the wrong thing and that this is my responsibility. But there was no time to reflect or pause. I was always reacting to the next crisis. All the same I should have accepted that it wasn’t right and dealt with it more expeditiously.
The prosecution has submitted there is room for improvement in your level of insight into your offending, particularly in light of your description of your actions to multiple assessors as ‘gilding the lily’. This is not an apt way to describe your actions, as the offending went far beyond that type of description.
Your friends and family members state that you have expressed remorse for the hurt and betrayal of trust you have caused. Many of the character references tendered indicate that you have conveyed a degree of shame and remorse.
I also note that there is some evidence inconsistent with suggestions of genuine remorse. Some of the money defrauded from the victim companies was spent towards the repayment of mortgages of your own personal properties. Property at Mount Macedon was also transferred by you into your wife’s name, two days after a text message was sent to Mr Eoh expressing that you deeply regretted the hurt and mess your actions have had on him personally and on his firm.
Nevertheless, and despite your early reactions regarding the discharge of mortgages, I am prepared to accept that your expressions of shame, and the pleas of guilty at an early stage, amount to evidence of remorse. I also accept that you have more recently cooperated as I have noted above. This also is an indicator of remorse. However, I hold the view that you still may not fully appreciate the level of deception and deliberateness of your actions. The room for improvement in your level of insight fits with the notion that, as part of your diagnosed mild personality disorder and bipolar disorder, you have delusions of grandiosity.
Character references
A number of character references from a number of people, of whom it is not necessary to name each, were tendered on your behalf. I have considered and taken into account all of them, however, I will specifically mention the comments of some.
Kim Boyd, a longtime friend and practising lawyer, describes you as trustworthy and reliable and a ‘very supportive friend’. She states you have expressed genuine shame and remorse about your offending and that your dishonesty was ‘unprecedented and completely out of character’. Your counsel submitted this was a perceptive character reference, as it makes observations about the amount of pressure you were under at the time, your detachment and unrecognisable behaviour, and how in Ms Boyd’s view you were acting in an unusual way she was not used to.
Some of the above references are from past colleagues of yours. They describe you as a good communicator and experienced consultant, incredibly smart, innovative, and diligent in your professional life, and many were surprised at you pleading guilty to the charges you face. They view your conduct as out of character, and state they had known you to be an honest man in your dealings. Many noted you had privately expressed remorse and shame for your actions to them.
Your sister, Stella Garretto, and your wife, LV, also provided character references. They speak of you as a compassionate family man and loving and loyal husband and father. Your sister states that you have supported your brothers financially in difficult times, looked after your frail and elderly mother, and supported the Garretto family during various periods of illness and hardship. Your wife speaks of you as having an energetic and obsessional approach to work with your primary focus throughout your life being your work and your family.
Your wife also notes the significant impact this offending has had on your family, characterising it as detrimental and lifechanging, having eroded her health, coping mechanisms and resilience, and bringing a deep sense of shame. Both your daughters have faced, and continue to face, serious health conditions, and are understandably anxious about these proceedings and your incarceration and sentence. Your wife writes that she considers your behaviour difficult to reconcile, and an aberration contrary to your true character. She notes that you have engaged in reflection about your offending, and unwaveringly articulated your regret and remorse.
Notably, Jiroo Eoh of ABL Life Insurance has also provided a reference in support of you. Mr Eoh was conducting a due diligence investigation on behalf of the company when he discovered there was something wrong with the investment. Despite considering ABL a victim of the fraud, Mr Eoh states that he developed a relationship with you over the course of the four year investigation. Mr Eoh writes that despite all that has occurred over the past years, he considers that your character is ‘anchored by good values — as evidenced by [your] focus on investor returns, [your] recovery efforts and empathic nature, including [your] feelings of guilt, shame and remorse over [your] wrongdoing’. Mr Eoh considers that you are largely a good person who has done an uncharacteristic wrong, for which you have taken responsibility.
I have taken into account all of the remarks made about you and accept that on balance the opinions of you demonstrate you are genuinely remorseful for your offending conduct. I also take into account a consequence of your offending is that you have lost your career, reputation, and the prestige that has gone along with your success. You are exceedingly unlikely to recover your life to anything near what it had amounted to previously. Through your own folly you have lost much that underpinned your way of life. At the same time, you have hurt others by what you did, and adversely affected reputations. You must be strongly denounced.
Delay
Your counsel has submitted that the delay while awaiting the final resolution of this matter, and your resultant anxiety, should further mitigate the sentence to be passed on you.
The prosecution submits that in the circumstances, there has not been a significant or unjustified delay. The case law suggests that delay may be a mitigatory factor where the delay has occurred ‘between the detection and charging of an offender and the time of sentencing, where the offender can fairly say that the sentence has been hanging over him or her for an unreasonable time’,[14] or perhaps where there has been a leisurely investigation or prosecution. The prosecution, in my view validly, noted that given the sophisticated nature of this offending, there was a necessarily lengthy and expensive investigation which involved the analysis of devices. As such, the time from the warrant being executed in March 2020 to the filing of charges in March 2021, and the resolution of the matter following committal in June 2023, it cannot be said to have been a leisurely or inordinate delay in the circumstances. Whilst I acknowledge that this is a long period of time for any offender to await the final resolution of their matters, in the context of this type of offending, I do not consider it so out of the ordinary such as to warrant substantial mitigation in sentence.
[14]R v Nikodjevic [2004] VSCA 222, [22] (Ormiston, Callaway and Vincent JJA).
Current sentencing practices
Section 5(2)(b) of the Sentencing Act requires a sentencing judge to have regard to current sentencing practices for your offence at the time of passing sentence. I have done so, and have considered the cases raised by the parties.
The prosecution have provided a table of comparable cases, which includes Kenyeres,[15] Mao & Niu,[16] Gonzalez,[17] and a number of others. The cases of Bulfin[18] and Koch[19] were also referenced in oral submissions.
[15]Kenyeres [2023] VSCA 25.
[16]Mao& Niu v The King [2022] VSCA 211 (Beach and T Forrest JJA) (‘Mao & Niu’).
[17]Gonzalez v The Queen [2022] VSCA 110 (Maxwell P, Emerton and Sifris JJA) (‘Gonzalez’).
[18]Director of Public Prosecutions v Bulfin (1998) 4 VR 114 (Winneke P, Charles and Callaway JJA) (‘Bulfin’).
[19]Koch v The Queen [2011] VSCA 435 (Maxwell P, Buchanan and Neave JJA) (‘Koch’).
It should be noted that a review of past cases demonstrates that fraud can be committed in many different ways, from the rudimentary to the sophisticated, involve high levels of preparation and planning, and involve vastly different sums of monies defrauded and attempted to be defrauded. Comparisons between cases may not be particularly illuminating, however, what can be said is that the principles to be applied appear to remain reasonably settled.
As a starting point, it must be stated that the amounts defrauded in the table of cases provided by the prosecution do not approach the $38 million the subject of the charges 1 and 2 in this matter, and the scale of monies associated with the use of false documents connected to charges 3 and 4 on the indictment. The scale of your fraudulent activity whilst breathtaking, must however, be kept in perspective.
The case of Mao & Niu involved an amount of approximately $9 million, and Gonzalez concerned a fraud of over $17 million. In Mao & Niu however, the applicants pleaded guilty to eight charges of obtaining financial advantage by deception, and the fraudulent loans were obtained over a period of three years. The two accused were sentenced to three years (with a non‑parole period of 18 months) and two years and 14 months (with a non‑parole period of one year and two months) respectively. They were found to have good prospects of rehabilitation, good employment histories, and were motivated by wealth to obtain the fraudulent loans from various banks.
Gonzalez involved 14 charges of obtaining financial advantage by deception including six continuing criminal enterprise offences. The applicant, Ms Gonzalez, pleaded not guilty at trial to all charges. The two offenders, who were married lawyers, set up a law firm to defraud a victim company who employed one of the offenders. They rendered hundreds of false invoices over two years for fake legal work. The applicant in the appeal was sentenced to nine years and six months’ imprisonment with a non‑parole period of seven years (which was upheld on appeal). The accused had pleaded not guilty to all charges. Notably, in that case, the applicant was found to have breached a serious position of trust, given the offenders’ professional position, their level of pre‑meditation, lack of remorse, and the fact that the defrauded funds were fully repaid through a civil action.
Bulfin is of less assistance, as the offence of obtaining financial advantage by deception carried a different maximum penalty at the time, and the case involved more significant amounts of money. The offender had been convicted following pleas of guilty for four charges of obtaining financial advantage by deception, receiving a secret commission, making and using a false document and fraudulently inducing investments. Over many years, the offender had engaged in major corporate fraud involving public investments of millions of dollars which resulted in substantial losses for investors. The following was said about the quantum involved:[20]
It will be apparent from the foregoing that the sums of money involved were very large indeed. The Dreamworld loans totalled $159 million, the Lassiter's Casino loan was $33 million and the Gaffney/Drage loans totalled approximately $50 million. The actual losses were, of course, smaller but they were still very substantial. In the case of Dreamworld the loss was $40 million, quite apart from interest foregone of the order of $96 million. The loss on the Lassiter's Casino loan was $13 million. Interest foregone was estimated at $35 million. The learned judge was not given precise figures concerning the Gaffney/Drage loans. The shortfall in M.A.M.’s funds was $6.78 million, but interest was foregone by investors from February 1993 onwards. They ultimately received 58.5 cents in the dollar, although there is a possibility of further returns. The order of magnitude of the sums siphoned off by the respondent and Brown appears from my brief outline of the offences the subject of each presentment. By far the largest component was the $1.899 million in secret commissions, which were directed towards the development of the Queensland caravan park and ultimately lost.
[20]Bulfin, 129.
Bulfin was sentenced to five years’ imprisonment, with a non‑parole period of two years. He pleaded guilty early, demonstrating remorse and offering co‑operation by way of evidence against other co‑accused to the authorities. The matter went on appeal in relation to the non‑parole period. The Court of Appeal ultimately determined there is no sentencing principle that in white collar crime cases there should be a wider than normal gap between the head sentence and the non‑parole period. The Court of Appeal held that the sentencing judge had erred in failing to order sufficient cumulation of the sentence on all presentments and in fixing a non‑parole period which was disproportionate to the total effective sentence, and was re‑sentenced to a total effective sentence of six years’ imprisonment with a non‑parole period of three years.
I will briefly mention Koch. The case involved the applicant being convicted in the County Court of 15 counts of obtaining property by deception and seven counts of obtaining a financial advantage by deception, with a total effective sentence (involving a degree of cumulation) of 13 years and 2 months’ imprisonment and a non‑parole period of 10 years. The applicant had pleaded not guilty at trial. Koch committed the offences over three years in the late 1990’s, during which time the complainants transferred funds to him on the faith of his representation that the funds would be invested in an ‘investment opportunity … which involved or was linked to a high yield investment scheme’.[21] However, this scheme did not exist. The applicant had instead been depositing the funds into accounts he controlled, withdrawing them, and using them for his own expenses and for gambling. The matter was appealed on various grounds, including whether the total effective sentence was outside the available range. The sentence was ultimately reduced to nine years and ten months’ imprisonment with a non‑parole period of seven years and six months’ imprisonment.
[21]Koch, [2].
President Maxwell made the following comment about quantum in fraud cases:[22]
The most obvious point of difference between the present case and those in the table works to the applicant’s advantage. By reference both to the total amount defrauded and to the number of victims affected, the scale of the applicant’s fraud was substantially smaller than that in any of the other cases. While, as counsel for the applicant properly conceded, the amounts involved are not determinative of sentence, they are – for good reason – of very great significance in determining the appropriate sentence. This is so, at least in part, because the quantum provides some real indication of the measure of loss and damage, both financial and psychological, caused to the victims of the frauds. A review of the decisions in the table confirms that relativities between amounts defrauded, both as between different victims of the same offender and as between different offenders, have a direct bearing on sentencing differentials.
[22]Koch, [58].
It should be noted that, unlike the length of your offending, the offending in Koch took place over three years, involved many individual charges of dishonest activity, but involved a significantly less sum of money.
De Simoni is relied on for the principle that a circumstance in aggravation cannot be used as a factor in determining a sentence if that circumstance or factor might imply that a more serious offence has been committed than the conviction being sentenced. In the present case is said to be relevant because the prosecution accepts it cannot prove that an operative deception existed at the time of the transfer of funds for charges 3 and 4.
I have also considered a number of cases from the New South Wales jurisdiction, where a similar offence for obtaining financial advantage by deception exists,[23] noting these authorities do not bind this Court. These include:
[23]Crimes Act 1900 (NSW), s 192E.
(a) Kapila v The Queen:[24] the offender pleaded guilty to an offence of dealing with property to the value of $100,000 or more where there were reasonable grounds to suspect the property was the proceeds of crime, and an offence of attempting to dishonestly obtain a financial advantage by deception. A further offence of knowingly participating in a criminal group was taken into account on what is referred to as a ‘Form 1’ at the applicant’s request, which attached to count 2. The offender was sentenced to an aggregate term of imprisonment of four years and six months, with a non‑parole period of two years and six months. The matter was appealed in relation to the manner in which the sentencing judge took into account the Form 1 offence, with the appeal being dismissed. The fraud itself related to a large‑scale money laundering scheme with five co‑accused, during a limited period of months in 2018.
(b) R v Rosamond (No 3):[25] the offender was found guilty by a jury of 59 counts of providing a corrupt benefit, 29 counts of dishonestly obtaining a financial advantage, and two counts of attempting to obtain a financial advantage, in the context of an ongoing fraud involving transactions in excess of $19 million. The fraud was effected on the National Australia Bank over approximately 12 years, for the personal enrichment of the two offenders. She was ultimately sentenced to 15 years’ imprisonment with a non‑parole period of eight years.
(c) Director of Public Prosecutions (Cth) v Pratten (No 2):[26] following a guilty jury verdict for seven counts of obtaining a financial advantage by deception contrary to the Criminal Code (Cth), the offender was sentenced to three years’ imprisonment in respect of each of three counts, to be served concurrently, and four years in respect of each of the remaining counts, to also be served concurrently but to commence one year after the other sentences commenced. The matter was appealed on various grounds including manifest inadequacy. The offender was ultimately resentenced to six years and four months’ imprisonment. The fraud itself related to failures to disclose income in a number of tax years, the total amount undisclosed totalling about $5 million and the value of the benefit being a little over $2 million.
[24][2024] NSWCCA 48 (Harrison CJ, Button and Weinstein JJ).
[25] [2023] NSWDC 267 (Sutherland SC DCJ).
[26][2017] NSWCCA 42 (Basten JA, Campbell and N Adams JJ).
Whilst none of the above cases are completely analogous to the present circumstances, I have taken them into account in my sentencing decision. I accept the submission of your counsel that when having regard to the decisions of past cases, whilst a matter of significance, a sentencing court should not place undue emphasis on quantum as the predominant or sole factor in assessing the gravity of your conduct.
Sentencing purposes
General deterrence, denunciation and punishment
There is no question that considerations of general deterrence, denunciation, and just punishment are primary sentencing purposes that I must consider.
The courts must strongly denounce this type of conduct as completely unacceptable within our community, and within our economic institutions and dealings.
With respect to general deterrence, this remains important in the sentence to be passed, despite the consideration I have given to the Verdins principles. Individuals, particularly in the professional business sphere, must be deterred from engaging in fraudulent transactions to further their own interests. Many commercial arrangements depend, as a matter of first principles, on the two sides to any agreement being able to trust what the other says, as accurate and truthful. Exploiting this position of trust, as you have done, must be strongly discouraged. The Court of Appeal has regularly emphasised the significance of general deterrence in sentencing for offending of this character.[27] Opportunistic and sophisticated business people must be strongly deterred from such conduct as you have carried out.
[27]See, for example, R v Kinnear [2009] VSCA 104, [24]–[25]; Yusuf v The Queen [2010] VSCA 266, [27].
In my view, given my finding surrounding Verdins above,[28] the sentencing purposes of general deterrence, denunciation and just punishment are all factors which must be given appropriate weight in the assessment of the sentence to be imposed in your case.
[28]See [73]–[77], [82]–[84] above.
Specific deterrence, rehabilitation and protection of the community
The material placed before the Court addresses your prospects of rehabilitation. Both Mr Newton and Associate Professor Carroll indicate you are unlikely to reoffend. You have strong, supportive networks, and appear to be responding well to pharmacological mental health treatment. As noted, you have no prior convictions and you have not led a generally anti‑social life.
I note the prosecution’s submission that the steps you have taken for personal rehabilitation are limited; you have not engaged in psychological treatment or offence specific treatment. There is a risk, in my view, that you remain driven by your ego and delusions of grandiosity. However, given all matters put forward, I consider you have good prospects of rehabilitation, particularly if you continue to develop insight into the gravity of your offending throughout your time in custody. In the circumstances, I consider that specific deterrence should therefore be given minor weight in the sentence to be imposed.
I also consider that community protection is not a factor that needs to be given any significant weight in sentencing you. Your offending was not violent, and you do not have a history of criminal activity. However, it must also be remembered that the community is entitled to be protected from exploitative business practices and people.
The principle of parsimony in s 5(3) of the Sentencing Act must also be applied, and the sentence must not be more severe than is necessary to achieve the purpose or purposes for which it is imposed. In this regard, I accept that limb 5 of Verdins is enlivened. I have applied a slight moderation of your sentence on the basis that your mental impairments render you more susceptible to the stress and other rigors of the custodial environment.
Non‑parole period and concurrency
I have noted and taken into account the submission of your counsel that there should be a ‘significant disparity’ between the head sentence and non‑parole period, on the basis of your age, other health issues, and mitigating factors. Your counsel have also submitted that given the conduct and tenor of your offending across the four charges is similar, there should be a significant degree of concurrency in sentencing.
The prosecution submits in response that you are not a particularly elderly offender, and your health is presently quite stable. The prosecution brought the Court’s attention to a passage in the case of Bulfin[29] that suggests that a lengthy non‑parole period is more likely to serve the principle of specific deterrence, and fixing an unduly short non‑parole period may be subversive to the concept of general deterrence. The prosecution also submits that charges 1 and 2 can be grouped together, and charges 3 and 4, such that a degree of cumulation is necessary, given there is separate and discrete offending.
[29]Bulfin, 132 [50].
In the circumstances, whilst confirming that specific deterrence is not a factor that is to be significant weight in the sentencing calculus, I am not persuaded that the non‑parole period in this matter should be particularly short, or that the interest of justice demands this. These are serious examples of these offences, and your health issues and age are not such that this period should be significantly reduced given the importance of deterrence in this case. However, I consider that a degree of concurrency is appropriate in this matter. In determining the appropriate sentence to be passed I have also applied the principle of totality, mindful that for a man of your age and your positive prospects of rehabilitation, that the sentence imposed should not crush those prospects.
Sentence
I again emphasise that the offences of obtaining financial advantage by deception and using false documents both carry a maximum penalty of 10 years’ imprisonment. Demetrios Charisiou, having taken all of these factors into account, I sentence you to the following.
Count Offence Maximum Sentence Cumulation 1.
Obtaining financial advantage by deception
10y
7y
Base
2.
Obtaining financial advantage by deception
10y
6y
2y
3.
Use false documents
10y
6y
2y
4.
Use false documents
10y
5y
1y
Total effective sentence: 12y
I direct that, on charge 1, you be sentenced to seven years’ imprisonment, and that this be the base sentence.
On charge 2, I sentence you to six years’ imprisonment. I direct that two years of the sentence for charge 2 be served cumulatively upon charge 1.
On the between dates charge as set out in charge 3, I sentence you to six years’ imprisonment. I direct that two years of the sentence for charge 3 be served cumulatively upon charge 1.
On charge 4, I sentence you to five years’ imprisonment, with 1 year of this sentence to be served cumulatively upon charge 1.
The total effective sentence is therefore 12 years’ imprisonment.
I order that you serve eight years’ imprisonment before being eligible for parole. I have accepted the submission made on your behalf that the Court should impose a somewhat lower non‑parole period due to your age, plea of guilty and mitigating factors.
Section 6AAA declaration
I have imposed on you a less severe sentence than I otherwise would have because you have pleaded guilty to these offences. Pursuant to section 6AAA of the Sentencing Act, I declare that but for your pleas of guilty, I would have sentenced you to 15 years’ imprisonment with a non‑parole period of 12 years.
Pre‑sentence detention
I further declare that that you have served 192 days of pre‑sentence detention, not including this day.
Suppression order
On 8 November 2023, an interim suppression order was made, preventing the publication of any information regarding the medical details or diagnoses concerning the wife and daughters of Mr Charisiou pursuant to section 20(4) of the Open Courts Act 2013 [‘Open Courts Act’].
On 21 May 2024, an application was filed pursuant to s 17 of the Open Courts Act for a final suppression order in the same terms as Orders 1 and 2 of the interim order, for a period of 10 years.
I have determined that this application should be granted.
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Schedule 1 – False representations regarding Hall Street property transaction
| No. | Representation made by Charisiou |
| 1. | Contract of Sale of Real Estate for 40 Hall Street, Moonee Ponds signed by James Charisiou on 25 February 2019 provided under cover of email on 22 March 2019 was a genuine sale by the vendor, Caydon Property Group Pty Ltd to LBA Capital Pty Ltd |
| 2. | NDIS SDA Accessible Design Certificate dated 18 March 2019 provided under cover of email dated 2 April 2019 was a genuine document authorised by John Gaucks, Assessor, Choice Support Australia |
| 3. | Legal advice letter dated 4 April 2019 on the letterhead of Mills Oakley Lawyers was a genuine document prepared by Tim Cox |
| 4. | QBE Commercial Lenders Mortgage Insurance Master Policy Effective date 21 March 2019 provided under cover of email on 2 April 2019 was a genuine document issued by QBE Insurance (Australia) Limited) |
| 5. | Certificate of Currency of Commercial Lenders Mortgage Insurance dated 25 March 2019 provided under cover of email on 2 April 2019 was a genuine certificate evidencing insurance in the sum of $30,100,000 issued by Marsh Ltd and signed by Chris Ward, Claims Principal |
| 6. | Document headed Unit Trust Deed for LBA Capital Unit Trust, with Perpetual logo, dated in First Schedule 21st March 2019 provided under cover of email dated 2 April 2019 was a genuine Deed with Perpetual that had been signed by Philip Blowe, Director and Nancy Cartwright, Director |
| 7. | Minutes of Meeting of the Board of Directors of the LBA Capital Unit Trust of 21st March 2019 provided under cover of email dated 2 April 2019 were true and correct and the meeting was attended by Phillip Blowe, Chairman who signed the minutes |
| 8. | Certificate of Currency of Commercial Lenders Mortgage Insurance dated 4 April 2019 provided under cover of email on 4 April 2019 was a genuine certificate evidencing insurance in the sum of $30,100,000 issued by Marsh Ltd and signed by Chris Ward, Claims Principal |
| 9. | NDIS SDA Accessible Design Certificate dated 3 April 2019 for 40 Hall Street, Moonee Ponds Victoria 3039 provided under cover of email dated 4 April 2019 was a genuine document authorised by John Gaucks, Assessor, Choice Support Australia |
| 10. | Put and Call Option Deed between LBA Capital Pty Ltd and Caydon Group Holdings Pty Ltd dated 4 March 2019 provided under cover of email on 21 March 2019 had been validly executed by Joe Russo, Director, Caydon Group Holdings Pty Ltd and witnessed by John Nerurker, Law Partner, Mills Oakley |
Schedule 2 – False representations regarding Margaret Street property transaction
| No. | Representation made by Charisiou |
| 1. | Contract of Sale of Real Estate for 7 Aspen Street, Moonee Ponds signed by James Charisiou on 25 February 2019 provided under cover of email on 22 March 2019 was a genuine sale by the vendor, Caydon Property Group Pty Ltd to LBA Capital Pty Ltd |
| 2. | Put and Call Option Deed between LBA Capital Pty Ltd and Caydon Group Holdings Pty Ltd dated 4 March 2019 provided under cover of email on 21 March 2019 had been validly executed by Joe Russo, Director, Caydon Group Holdings Pty Ltd and witnessed by John Nerurker, Law Partner, Mills Oakley |
| 3. | Legal advice letter dated 21 March 2019 on the letterhead of Mills Oakley Lawyers provided under cover of email on 2 April 2019 was a genuine document prepared by Tim Cox |
| 4. | QBE Commercial Lenders Mortgage Insurance Master Policy Effective date 21 March 2019 provided under cover of email on 2 April 2019 was a genuine document issued by QBE Insurance (Australia) Limited |
| 5. | Certificate of Currency of Commercial Lenders Mortgage Insurance dated 30 March 2019 provided under cover of email on 2 April 2019 was a genuine certificate evidencing insurance in the sum of $8,500,000 issued by Marsh Ltd and signed by Chris Ward, Claims Principal |
| 6. | Document headed Unit Trust Deed for LBA Capital Unit Trust, with Perpetual logo, dated in First Schedule 21st March 2019 provided under cover of email dated 2 April 2019 was a genuine Deed with Perpetual that had been signed by Philip Blowe, Director and Nancy Cartwright, Director |
| 7. | Minutes of Meeting of the Board of Directors of the LBA Capital Unit Trust of 1st April 2019 provided under cover of email dated 2 April 2019 were true and correct and the meeting was attended by Phillip Blowe, Chairman who signed the minutes |
| 8. | NDIS SDA Accessible Design Certificate dated 29 March 2019 for 7 Aspen Street, Moonee Ponds Victoria 3039 provided under cover of email dated 2 April 2019 was a genuine document authorised by John Gaucks, Assessor, Choice Support Australia |
| 9. | Legal advice letter dated 4 April 2019 on the letterhead of Mills Oakley Lawyers provided under cover of email dated 4 April 2019 was a genuine document prepared by Tim Cox |
| 10. | Certificate of Currency of Commercial Lenders Mortgage Insurance dated 4 April 2019 provided under cover of email on 4 April 2019 was a genuine certificate evidencing insurance in the sum of $8,500,000 issued by Marsh Ltd and signed by Chris Ward, Claims Principal |
| 11. | NDIS SDA Accessible Design Certificate dated 3 April 2019 for 7 Aspen Street, Moonee Ponds Victoria 3039 provided under cover of email dated 4 April 2019 was a genuine document authorised by John Gaucks, Assessor, Choice Support Australia |
Schedule 3 – False documents pertaining to Charge 3
| Date of document | False document | Use of document |
| 14 May 2019 | Certificate of Currency Commercial Lenders Mortgage Insurance evidencing insurance in the sum of $32,240,000 issued by Marsh Ltd and signed by Chris Ward, Claims Principal | Provided as an attachment to email delivered 21 May 2019 |
| 16 April 2019 | Put and Call Option Deed between LBA Capital Pty Ltd and Cbus Property Pty Ltd allegedly executed by Adrian Pozzo, CEO, Cbus Property Pty Ltd and witnessed by Georgina Lynch, Chairman, Board, Cbus Property Pty Ltd | Provided as an attachment to email delivered 21 May 2019 |
| 16 May 2019 | NDIS SDA Accessible Design Certificate authorised by Nie Foar, Assessor, Choice Support Australia | Provided as an attachment to email delivered 21 May 2019 |
| 16 May 2019 | Cushman & Wakefield Valuation report for 9 Dryburgh Street, West Melbourne authorised by John Waugh and Mars Njoo | Provided as an attachment to email delivered 21 May 2019 |
| 16 May 2019 | Cushman & Wakefield Property Valuation report for 883 Collins St, Docklands authorised by John Waugh and Mars Njoo | Provided as an attachment to email delivered 21 May 2019 |
| 22 April 2019 | Cushman & Wakefield Property Valuation report for 915 Collins St, Docklands created and authorised by John Waugh and Mars Njoo | Provided as an attachment to email delivered 21 May 2019 |
| 21 April 2019 | Cushman & Wakefield Property Valuation report for 590 Orrong Rd & 4 Osment St Armadale created and authorised by John Waugh and Mars Njoo | Provided as an attachment to email delivered 21 May 2019 |
| 3 May 2019 | NDIS SDA Accessible Design Certificate for 915 Collins Street, Docklands authorised by Nie Foar, Assessor, Choice Support Australia | Provided as an attachment to email delivered 21 May 2019 |
| 8 May 2019 | NDIS SDA Accessible Design Certificate for 883 Collins Street, Docklands authorised by Nie Foar, Assessor, Choice Support Australia | Provided as an attachment to email delivered 21 May 2019 |
| 8 May 2019 | NDIS SDA Accessible Design Certificate for 590 Orrong Road, Armadale authorised by Nie Foar, Assessor, Choice Support Australia | Provided as an attachment to email delivered 21 May 2019 |
| 13 May 2019 | Certificate of Currency Commercial Lenders Mortgage Insurance evidencing insurance in the sum of $124,300,000 issued by Marsh Ltd and signed by Chris Ward, Claims Principal | Provided as an attachment to email delivered 21 May 2019 |
| 20 April 2019 | Put and Call Option Deed between LBA Capital Pty Ltd and Lend/ease Group executed by David Crawford, Director, Lend/ease Group and witnessed by Jane Hemstritch, Director, Lendlease Group | Provided as an attachment to email delivered 21 May 2019 |
| 27 May 2019 | Contract of Sale for 70 Australia Wharf, 883 Collins Street, Docklands signed, sealed and delivered for Lendlease Group by Nicholas Cowie, Partner at Freehills, and witnessed by Sarah Benbow at Freehills was a genuine signed Contract of Sale | Provided as an attachment to email delivered 6 June 2019 |
| 27 May 2019 | Contract of Sale for 1 Collins Wharf, 915 Collins Street, Docklands signed, sealed and delivered for Lend/ease Group by Nicholas Cowie, Partner at Freehills, and witnessed by Sarah Benbow of Freehills was a genuine signed Contract of Sale | Provided as an attachment to email delivered 6 June 2019 |
Schedule 4 – False documents pertaining to Charge 4
| Date of document | False document | Use of document |
| 2 July 2019 | Certificate of Currency Commercial Lenders Mortgage Insurance evidencing insurance in the sum of $15,900,000 issued by Marsh Ltd and signed by Kyle Williams, Senior Claims Principal | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 27 June 2019 | Tax Invoice (No. H2182518) issued by Marsh Ltd to James Charisiou, LBA Capital Pty Ltd | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 28 June 2019 | NDIS SDA Accessible Design Certificate for Forge, 871 South Wharf Drive, Docklands, Victoria authorised by Dan Christian, Assessor, Choice Support Australia | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 2 July 2019 | Certificate of Currency Commercial Lenders Mortgage Insurance evidencing insurance in the sum of $60,000,000 issued by Marsh Ltd and signed by Kyle Williams, Senior Claims Principal | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 27 June 2019 | Tax Invoice (No. H2182519) issued by Marsh Ltd to James Charisiou, LBA Capital Pty Ltd | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 27 June 2019 | NDIS SDA Accessible Design Certificate for 36 King Street, Bowen Hills, Queensland authorised by Dan Christian, Assessor, Choice Support Australia | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 27 June 2019 | NDIS SDA Accessible Design Certificate for Toorak Park, 590 email Orrong Road Street, Armadale, Victoria authorised by Dan Christian, Assessor, Choice Support Australia | Provided as an attachment to from Matt Bartalotta delivered 4 July 2019 |
| 2 July 2019 | Certificate of Currency Commercial Lenders Mortgage Insurance email evidencing insurance in the sum of $101,500,000 issued by Marsh Ltd and signed by Kyle Williams, Senior Claims Principal | Provided as an attachment to from Matt Bartalotta delivered 4 July 2019 |
| 27 June 2019 | Tax Invoice (No. H2182520) issued by Marsh Ltd to James Charisiou, LBA Capital Pty Ltd | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 29 June 2019 | NDIS SDA Accessible Design Certificate for Lucid, 38 Hope St, email South Brisbane, Queensland authorised by Dan Christian, Assessor, Choice Support Australia | Provided as an attachment to from Matt Bartalotta delivered 4 July 2019 |
| 29 June 2019 | NDIS SDA Accessible Design Certificate for Art House, 58 Hope Street, South Brisbane, Queensland authorised by Dan Christian, Assessor, Choice Support Australia | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
| 29 June 2019 | NDIS SDA Accessible Design Certificate for Forge, 871 South Wharf Drive, Docklands, Victoria authorised by Dan Christian, Assessor, Choice Support Australia | Provided as an attachment to email from Matt Bartalotta delivered 4 July 2019 |
ANNEXURE A
Revised Summary of Prosecution Opening for Plea dated 9 November 2023
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