Director of Public Prosecutions v Curran
[2015] VCC 454
•22 April 2015
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-01950
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GEOFFREY CURRAN |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 April 2015 | |
DATE OF SENTENCE: | 22 April 2015 | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Curran | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 454 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – obtaining financial advantage by deception – suspended sentence
Legislation Cited: Crimes Act 1958, s82(1); Sentencing Act 1991, s27 (as it then was)
Cases Cited:Arthars v R; Plater v R [2013] VSCA 258; R v Verdins & Ors (2007) 16 VR 269; R v Cockerell (2001) 126 A Crim R 444; R v Tiburcy (2006) 166 A Crim R 291
Sentence: Convicted and sentenced to a period of 6 months' imprisonment wholly suspended to the then s27(1) of the Sentencing Act 1991 (as amended) with a supervision period of 12 months. 6AAA declaration – 6 months immediate imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J Ayres | Solicitor for Office of Public Prosecutions |
| For the Accused | Mr M Cookson | Donaldson, Whiting + Grindal |
HIS HONOUR:
1 Geoffrey Curran, you have pleaded guilty to the charge that you, at Mordialloc in Victoria and diverse other places on 18 July 2002, dishonestly obtained for yourself or another, a financial advantage, namely $250,000, from Helene Brooks (“Brooks”) by deception, namely by falsely representing that the sum would be invested in a “AAA” rated bank guaranteed investment, and that such guarantee had already been approved and obtained.
2 The offence of obtaining financial advantage by deception is contrary to s82(1) of the Crimes Act 1958 and carries a maximum penalty of ten years' imprisonment.
3 The Prosecution has prepared a written summary of the circumstances surrounding your offending. Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. I will not set out all the details of such document but highlight the following:
(a)You are presently sixty-four years of age (having been born in October 1950). At the time of offending, you were aged fifty-one;
(b)The victim of your offending, Brooks, who is now aged seventy-four. You first met Brooks and her then husband in the early 1970s in your role as a manager of various branches of the then Bank of New South Wales and later Westpac Bank, where Brooks and her husband were account holders. Over the years from the 1970s to the late 1990s, you became a financial adviser and friend to Brooks and her husband;
(c)From about 1998, you were employed by the accounting firm Monaghan McLean & Co, (“MMC”) which was located in Mordialloc. Although you are not qualified as an accountant, you assisted in preparing clients’ financial accounts, reports and taxation returns. During this period, Brooks and her husband continued to have professional and personal dealings with you.
(d)Brooks and her husband owned and managed a bed and breakfast guest house accommodation business located in South Australia. In early 2002, Brooks and her husband divorced, and Brooks continued to manage the bed and breakfast business, during which time you prepared the financial accounts of the business, and annual taxation requirements free of charge, in return for which you travelled to and from the bed and breakfast establishment with no charge for your accommodation;
(e)On a number of occasions during 2001 and 2002, Brooks provided you with large amounts of money (up to $150,000) to invest in short-term mortgages supposedly guaranteed by “AAA” rated banking institutions and these transactions were mostly successfully completed, returning yields of around 10 per cent;
(f)In early 2002, you became aware of an investment opportunity through a business contact, Louis Williams, which involved plans to construct an apartment block in Ivanhoe. The project organisers were seeking an initial $250,000 to fund the venture, and you indicated to Williams that Brooks might be willing to invest in the project;
(g)You approached Brooks, enquiring whether she was interested in making a new investment of $250,000 and at such time, you falsely stated to her that such funds would again be invested in mortgages which were guaranteed by “AAA” institutions with an expectation of a 10 per cent yield. You did not reveal the capital was to be used to construct an apartment block;
(h)Brooks agreed to make an investment of $250,000 and in order to facilitate the financial arrangement, you registered a new corporate entity called “Brix N Mortar Investments Pty Ltd” on 16 July 2002. The listed directors of that company were Louis Williams and Heather Biddle, your then partner;
(i)On 17 July 2002, you sent a fax to Brooks on MMC letterhead stating:
“The dollars are to go to: John Kotsifas & Associates Lawyers and Consultants Trust Account at National Bank BSB 063 871 account number 479788249.
I have instructed that the money is only to be released on my signature and that I have in my hands a Bank Guarantee by AAA rated bank. As soon as I get these I will fax to you a copy of Guarantee and letter confirming interest payments at rate of 10% pa to be paid at rate of $2100 every 30 days commencing from date of draw down. I will also get copies of all other documents and post them over.
Love Geoffrey.”
(j)On 18 July 2002, Brooks withdrew $250,000 from an account and deposited such sum in the bank account nominated by you. You were not in possession of a AAA bank guarantee for this transaction or any other bank guarantee and, accordingly, the investment by Brooks was unsecured. Brooks never received any related documentation from you as you had promised;
(k)In August 2002, you instructed John Kotsifas to transfer $50,000 to the bank account of Brix N Mortar Investments Pty Ltd and the remaining $200,000 to the trust account of C Wantrup & Associates, Solicitors, whose principal, Charles Wantrup, was involved in planning and sourcing investments for the property development;
(l)In about mid-2003, the property venture collapsed and the investment funds were effectively lost;
(m)You did not advise Brooks of this situation but continued to make monthly “interest” payments of $2,100 to Brooks in accordance with the investment agreement up until 2006, notwithstanding the project had failed. Williams contributed towards eight to ten of these monthly payments after you had requested his financial assistance to do so;
(n)In February 2006, Brooks contacted you, indicating she wished to obtain a loan against her $250,000 investment in order to purchase a property. You advised her this was not possible and ultimately Brooks sought copies of the relevant documentation relating to her investment. At about this time, the monthly interest payments ceased;
(o)Brooks sought legal advice and in May 2006, her lawyers issued you and MMC with a letter of demand in relation to the outstanding funds, to which you replied by letter stating:
“The investment of $250,000 is presently at risk and the matter has been placed with the Law Institute of Victoria. We have reported Mr Charles Wantrup of Wantrup & Associates. Moneys were forwarded to his trust account to enable settlement of property matter and he has incorrectly distributed funds without authority.”
(p)You also wrote to the principal of MMC, advising that you had previously invested $250,000 for Brooks and in particular, stated:
“In venture whereby I had been given details and contract that we were to have a mortgage over land or a bank guarantee which was then to be used as a foundation or joint venture. The moneys were borrowed from Mrs Brooks, details were given to transfer funds to a solicitor’s trust account, who would release to Wantrup & Co, solicitor handling the settlement, who in turn did not settle but moved the $$ sideways. There was another party in this deal but he has walked away – I am trying to follow up legally but he would not discuss the matter.
It is to be noted that there are no writings to Mrs Brooks and funds could actually be construed as unsecured. I have not involved Monaghan McLean in any way, shape or form.”
(q)In 2008, Brooks initiated civil proceedings against you, MMC and John Kotsifas & Associates to recover her investment sum, and in July 2010, a settlement was reached between Brooks, on one hand, and MMC and John Kotsifas, where each of those parties (MMC and Kotsifas) paid Brooks $30,000 each. No settlement agreement was reached with you;
(r)In March 2012, Brooks notified local police in South Australia of the suspected offending and investigations commenced, causing you to be interviewed at Frankston Police Station on 5 September 2013. At that time, you admitted your alleged actions but disputed whether they constituted an offence.
4 Counsel for the Prosecution accepted that you did not obtain any direct personal gain from the transaction and furthermore, there was no suggestion by the Prosecution that the project for which you sought money from Brooks was a sham. Indeed, counsel for the Prosecution accepted that you had some legitimate intention to obtain an appropriate investment for Brooks but in the course of negotiations, deceived her by falsely asserting that the transaction was covered by a AAA rating and documentation was available to that effect.
5 Counsel for the Prosecution also accepted that you have no prior convictions for any offence and since the offending, there has been no subsequent criminal activity.
6 Your counsel, in support of your plea in mitigation, tendered the following documents:
·Exhibit A – the report of the consultant psychologist, Mr Tim Watson-Munro, dated 14 April 2015. Mr Watson-Munro has seen you on four occasions including 14 April 2015, a few days before the date of this plea hearing;
·Exhibit B – medical report of Dr Tim Dillon dated 3 November 2014;
·Exhibit C – outline of submissions on your behalf;
·Exhibit D – report of clinical psychologist Dr Katherine O’Donovan dated December 2014;
·Exhibit E – references from Ms Nancy Keogh, Mr Robert Driver and Mr Vince Dimasi.
7 I was also informed by your counsel that your daughter, son-in-law, sisters and a long-term friend were in Court to support you.
Your personal circumstances, educational and vocational background
8 Based on some of the materials tendered and the submissions made by your counsel, I set out the following details in respect to your personal circumstances, your educational and vocational background.
9 You were born in Perth and have three sisters, two of whom attended Court. You were educated in Perth until the intermediate level in 1966, after which you joined the then Commercial Bank of Australia, starting as a junior and rising to the position of bank manager of four different branches. In your earlier years, you attended night school to obtain appropriate qualifications.
10 Following the separation from your wife, you left the Bank and worked as a financial controller from the late 1980s to 1997 for an Apple Computer dealership on a full-time basis. You then commenced employment with MMC and assisted with account preparation, financial reporting and taxation return preparation. This employment came to an end in 2007 when the subject events became known. You were then employed by Bayside Tax Accounting Pty Ltd from 2007 to 2012 and since then, you have not worked consistently.
11 Over the last few years, you have been “relying on the charity” of your friends and family and either have been living with your daughter or, as you are now, currently living with a friend in Hampton Park.
12 The report from your treating general practitioner, Dr Tim Dillon, advises that you are being medicated to prevent stroke, heart disease, diabetes, high blood pressure, sleep apnoea and asthma. Furthermore, your general practitioner notes that there have been periods of depression over the years.
13 I also refer to the report of the psychologist, Mr Tim Watson-Munro, wherein he notes that you have suffered severe depression and anxiety, which, in his view, has been ongoing for many years. Furthermore, he considers that your emotional state has deteriorated further since being charged. In particular, when seen on the day before your plea, he described you being in a “parlous state”, referrable to your depression, and with active suicidal ideation. I also note that you have sought treatment from the clinical psychologist, Dr Katherine O’Donovan, and treatment with her resumed in 2013, when she diagnosed you to be suffering from depression.
14 In particular, I note that Dr O’Donovan describes you as having “strong feelings of shame, that [you have] let [your] family and friends down”.
15 Also, Mr Watson-Munro noted that at examination, you expressed “significant remorse for the actions which I believe to be genuine”.
16 Ultimately, Mr Watson-Munro was of the opinion that you need to be “closely watched” and that if you were to be incarcerated, you would have a “very difficult time” in prison, which would lead to further exacerbation of your symptoms. He considered that you required ongoing cognitive behaviour therapy, medication and supportive psychotherapy.
17 Through your counsel, you have described experiencing extreme personal stress caused by your offending, letting down Brooks, and indeed, letting down your family.
18 In support of his plea for mitigation, your counsel submitted that the following matters should be taken into account:
(a) That you entered a plea of guilty at the earliest possible time in relation to the offending and have demonstrated genuine remorse for your actions and the harm that it has caused Brooks and the shame that has been brought to your family;
(b) That you have no prior convictions whatsoever and indeed, have not come to the attention of the police since the subject offending;
(c) Your counsel also submitted that in somewhat strange circumstances for a deception case, it was always your intention to advise Brooks appropriately and lead her into appropriate investments and in no way was the subject investment considered initially to be a sham. Furthermore, and importantly, in no way did you benefit financially from the transaction;
(d) Your counsel also relies on the decision of R v Verdins & Ors (2007) 16 VR 269 to the extent that because of your psychological state existing at the date of sentencing, incarceration will “weigh more heavily” on you than on a person in normal health. I also note, as already recorded, that Mr Watson-Munro also considers incarceration would probably have an adverse effect on your mental health;
(e) Your counsel also relies on the “delay”, particularly from 2006. In particular, he submits that there was delay from 2002 to 2006, when the offence went “undetected”; delay from 2006 to 2012, when Brooks elected to pursue civil remedies rather than a criminal remedy, and from 2012 to 2015, the delay between the reporting to police and the laying of a charge. Your counsel submits that the delay from 2006 to the present is relevant both to issues of rehabilitation and fairness.
Counsel for the Prosecution, in a very fair response, indicated that the circumstances of the matter were “unusual”, as you did not enter into the transaction to deceive Brooks or in any way to obtain moneys, or in fact did obtain any moneys.
19 Furthermore, counsel for the Prosecution described the delay from 2006 as “unfortunate” and was no fault of yours from that date onwards. Furthermore, he described the offending as a “one-off transaction” and that you had genuine remorse for your actions. In this respect, although he considered general deterrence is relevant, the need for specific deterrence in the factual circumstances of this matter was not relevant.
20 However, the gist of the offence was that you failed to advise Brooks that the investment did not have a AAA guarantee and that no documentation existed when she entered into the transaction. Of course, this must be seen in the context that you well knew that Brooks desired “AAA” guarantees. Although you may well have expected to ultimately obtain a “AAA” guarantee, you saw fit not to advise Brooks at the time of the loan and unfortunately, the loan was significant, and the ultimate collapse caused Brooks to lose a substantial amount of money.
Conclusion
21 I consider that you are probably essentially an honest man who made a terrible mistake on this occasion. I fully accept that you did not enter into this transaction thinking it was a sham or expecting to gain from any loss suffered by Brooks.
22 I have come to this conclusion given your background and indeed, the strong relationship you had with Brooks, and at earlier times with her husband. Obviously you were friends and were looking out for her to invest in appropriate circumstances. This has also been demonstrated when you became aware that the land had not been purchased and the investment had fallen through, you continued to pay interest for a substantial period of time, largely out of your own pocket. I do not consider such actions to be those of a dishonest man.
23 However, as I say, you made a critical mistake by deceiving Brooks when she was about to pay the moneys, advising her there was to be a “AAA” guarantee, and documentation would be in place. Of course, none of that came about, and although I accept that you had the expectation that such events would occur, it was inappropriate to make those representations to Brooks. The fact that the deal went bad, and she had little or no recourse to obtain the money, highlights why the “AAA” guarantee was important.
24 I consider the relevant sentencing considerations include punishment to an extent and in a manner which is just in all the circumstances and general deterrence – that is to deter others from misleading potential investors in relation to their investments.
25 In all the circumstances, I accept the submissions of both counsel that personal deterrence has no particular relevance, as I do consider this to be essentially a “one off” situation.
26 I also consider the following matters as mitigating circumstances:
(a) Your early plea of guilty and your genuine remorse about the offending, both in relation to Brooks and indeed, the shame which you perceive you have caused your family;
(b) I also consider that the period of delay from 2006 to date is lengthy. Although none of the delay is of your making, such delay, in my view, can only run from 2006, as the offence was not detected until that date;
I refer to Arthars v R; Plater v R [2013] VSCA 258, wherein the Court of Appeal set out the basis of a justification for taking “delay” into account as a mitigating factor. In essence, the two considerations are of rehabilitation and fairness.
The Court of Appeal referred to the comments of Chernov JA in R v Cockerell (2001) 126 A Crim R 444, which was subsequently affirmed in R v Tiburcy 166 (2006) A Crim R 291. Chernov JA states:
“…First, and perhaps foremost, where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible that the offender has the opportunity to complete the process of rehabilitation. Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of suspense as to what will happen to him or her. … .”
As noted by the psychologist, your mental health has deteriorated markedly as a result of the charge being laid and no doubt going through the Court process to reach this day. This event has been hanging over your head a large period of time and I consider that the issue of “delay” is a significant mitigating factor;
(c) Prior to this offending, you have no record whatsoever, and since the offending, there has been no criminal activity;
(d) I also consider that if you were immediately incarcerated, your mental health would deteriorate, and certainly any period of imprisonment would be harder for you than someone without your psychological symptoms.
27 Taking all these matters into account, I consider that it is probably inappropriate to order a community correction order given the state of your mental and physical health. Bearing in mind the date of the offence, it is open to me (as confirmed by both counsel) that a suspended sentence can be given in all the circumstances.
28 Accordingly, Mr Curran, could you be upstanding please?
29 In relation to Charge 1, you are convicted and sentence to a period of six (6) months’ imprisonment.
30 Pursuant to the then s27 of the Sentencing Act 1991, I further order that the period of sentence be wholly suspended for a supervision period of twelve (12) months.
31 I further order in relation to Charge 1 that, pursuant to s.86 of the Sentencing Act 1991 (Vic), you pay the complainant, Ms Helene Brooks, compensation in the sum of $190,000.00.
32 It is necessary that I tell you that such a sentence does not involve immediate incarceration. However, if, over the period of the next twelve months you commit any offence punishable by imprisonment, your suspended sentence of six months will be almost certainly restored and you will have to serve that period of incarceration and indeed, any other penalty which you may incur as a result of any other offending. No doubt your counsel will give full details as to what this order involves.
33 Lastly, pursuant to s.6AAA of the Sentencing Act 1991, if not for your plea of guilty, I would have imposed six months immediate imprisonment.
34 Mr Curran, as you probably gather from what I have said in the sentencing remarks, is that you are being punished for what was a very bad decision on your part at the time. In no way does the Prosecution and indeed, perhaps more importantly, do I take the view that you are an inherently dishonest man. I do not think you are. I do not think you set out with a conscious aim to deceive Ms Brooks. I think events overtook you to a large extent. But on the other hand, a large amount of money was involved if certain guarantees were in place, this disaster would not have occurred.
35 So on that basis you are being sentenced and as I have explained in the sentencing remarks, your sentence is wholly suspended, but it is very important and as again, as counsel no doubt will stress this to you, it is very important that over the supervision period that if, and I am not suggesting you will of course, but if you are involved in any other further criminal activity which has the potential for you to be imprisoned, you will be back before me and almost certainly your suspended sentence of six months would be restored, plus any other sentence for the further conduct.
36 So hopefully this will be part of the process of getting your life back together again and I wish you the best because of that.
37 Anything to add counsel?
38 MS GODING: Nothing further, Your Honour.
39 MR COOKSON: Nothing further, Your Honour.
40 HIS HONOUR: Yes. You will explain to your client why and what has gone on?
41 MR COOKSON: Yes, Your Honour.
42 HIS HONOUR: Yes, thank you. We will adjourn the court.
43 MR COOKSON: As Your Honour pleases.
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