Director of Public Prosecutions v Eliezer

[2020] VCC 252

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-02022

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANITA ELIEZER

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	11 March 2020
DATE OF SENTENCE:	11 March 2020
CASE MAY BE CITED AS:	DPP v Eliezer
MEDIUM NEUTRAL CITATION:	[2020] VCC 252

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. French	Office of Public Prosecutions
For the Accused	Ms J. Willard	Nelson Brown Legal

HER HONOUR:

1Anita Chalmani Eliezer, you have pleaded guilty before me to five charges of obtain property by deception.  The facts underlying your offending are as follows.  The offending occurred between March 2006 and March 2014 and the victims against whom you offended were all friends of yours.

2Charge 1 is a rolled up charge whereby the victim, Graeme Simpson, between March 2006 and 14 October 2013, provided you with a series of cheques totalling $175,000, which he believed would be invested by you on his behalf in the Australian and international share market.  Mr Simpson had met your husband, Ananda Jolsi Kristi Eliezer, in the mid-1970s and he met you at your wedding, and for the next 25 years he and his wife socialised with the two of you and were good friends.

3You had a reputation amongst friends, family, and it seems the Sri Lankan community, of being a successful investor in the share market.  Mr Simpson's wife lost her job and you told Mrs Simpson you would be willing to invest money for her.  In 2006 and 2007 Mr Simpson provided cheques for $100,000 and $75,000 respectively, for an investment in the Australian international share market, you signing an agreement note confirming the amounts you had received, the financial securities to be traded on Mr Simpson's behalf, and when Mr Simpson could request a return of his capital and/or profits.

4On eight further occasions between August 2011 and October 2013 Mr Simpson gave you money for the same purpose.  You never invested the money in the share market but instead used it for your own purposes.  Initially the Simpsons received what they thought were dividend payments which were in reality amounts of money forwarded by you to the Simpsons in order to further their belief that the money had been invested as agreed.

5Charge 1 reflects the total amount of property obtained from Mr Simpson where each transaction involved a sum of, or greater than, $50,000, thereby constituting a continuum criminal enterprise.  The total amount you obtained during the containing criminal enterprise from the Simpsons totalled $775,000.

6The victim in Charge 2, Shivanthi KUNARATNAM, was a solicitor who had retired from her position as managing partner in a legal practice due to the onset of multiple sclerosis.  The arrangement was that she receive quarterly payments over six years for the sale of her share in the partnership.  Her mother is related to you and her parents were close friends of yours for at least 20 years before the offending against her.  Mrs Kunaratnam's father walked you down the aisle on the occasion of your marriage to Mr Eliezer.  Mrs Kunaratnam's parents had previously provided money to you to invest on their behalf without issue.

7Mr Kunaratnam discussed his daughter's financial situation with you and you and Mrs Kunaratnam had a meeting where it was agreed she would provide money to you to invest on her behalf in the Australian international share markets.  Mrs Kunaratnam provided an initial cheque of $25,000 to you in February 2007 and you and she signed a document labelled, 'Undertaking note', which detailed the amount of money provided, financial securities to be traded by you on Mrs Kunaratnam's behalf, a personal guarantee on her capital, and noted that profits from the capital would be given to Mrs Kunaratnam on her request.

8In August 2007 Mrs Kunaratnam provided a second cheque for $25,000 to you.  Between July 2008 and May 2012 Mrs Kunaratnam provided a further six cheques to you in amounts ranging from $18,375 to $45,000, and totalling $193,375.  The total amount obtained during this offending against
Mrs Kunaratnam was $243,375.  You never invested the money as agreed but instead used it for personal expenses, including payment of rent and credit cards.  During that period you would communicate with Mrs Kunaratnam via phone and email about the state of the share market and the progress of her portfolio and would query whether she had any other disposable income available, suggesting she provide those funds for investment.  When
Mrs Kunaratnam wrote out cheques which she gave to you, you provided written acknowledgment of their recept and that the money would be used to engage in trading on Mrs Kunaratnam's behalf.

9As with the Simpsons, in the first few years Mrs Kunaratnam received payments from you which were represented as dividends.  Again the prosecution case is that those payments were made to create the false impression that you had been investing Mrs Kunaratnam's money in shares.  You then suggested that she reinvest the dividends, which Mrs Kunaratnam did, hence ceasing any request for dividends by her.  On most of this time you also provided Mrs Kunaratnam with quarterly reports, setting out her profits after tax and brokerage fees that had been deducted.  Mrs Kunaratnam understood from you that you were always making a profit.

10Charge 3 also involves Mrs Kunaratnam and covers a period from January 2008 to February 2013 where she provided 39 cheques to you in amounts arranging from $50,000 to $300,000 and totalling $4,793,160.00.  Charge 3 is a rolled up charge reflecting the total amount of property obtained by you from
Mrs Kunaratnam during this period and your actions in this time also constitute a continuing criminal enterprise offence.

11Mrs Kunaratnam provided details of the money provided to you to her accountant, Aaron Doran, who in early 2013 advised her to begin winding down her portfolio or securing her investment with an underlying asset as he calculated she had invested more than $4.5 million with you.

12In around April 2013 Mrs Kunaratnam spoke with you about winding down her investment portfolios and you agreed that her investment portfolio was to be repaid in accordance with a written schedule.  You repaid $40,000 in May 2013 but then failed to return moneys in accordance with the schedule, giving various excuses, including being busy, working with your husband's film, tax related reasons, that your ASX account had been frozen, and that you had also been winding down the share portfolio of a well known musical entrepreneur, whose existence you called on in relation to other victims.

13Ultimately Mrs Kunaratnam issued a letter of demand by solicitors to you and between August and September 2013 you repaid about $740,000.
Mrs Kunaratnam then began civil proceedings against you and on 9 April 2014 obtained default judgment against you.  Ultimately on 16 October 2014 you were declared bankrupt.  The tracing of the cheques deposited into your accounts by Mrs Kunaratnam indicated you used the funds for personal expenses, including payment of rent and credit cards.

14Charge 4 again involves Graeme Simpson, who between August 2011 and March 2014 provided money to you on two occasions totalling $33,060.  The second amount, $20,000, was provided to you after you contacted him and asked him to give you $20,000 for you to invest for a week from which you said he would receive a profit of $2800.  You failed to repay the money and when Mr Simpson began requesting you do so, you again gave what he described as, 'countless excuses', as to why the money was not available.  Eventually
Mr Simpson engaged lawyers and in 2016 you repaid $8900 to him.  In November 2014 you entered into a deed of arrangement to repay $450,000 on or before 1 February 2017.  This, of course, never occurred.

15Charge 4 is a rolled up charge reflecting the total amount of property obtained from Mr Simpson where each transaction involved a sum of less then $50,000.  Charge 5 involves your victims, Heather and Ian Maurer, with whom you had been friends for many years.  In 2013 the Maurers planned to build a house at Rye, using money they had inherited from their own parents and from their own son, who had died.  Your husband told Mrs Maurer that you could make them extra money by trading shares to assist in the building project.  You then later telephoned Mrs Maurer, during which you suggested they invest their money in Rio Tinto shares, which you held and which you would sell them when they needed the money, and you persisted with this suggestion.

16In September 2013 you and your husband told the Maurers that you owned 100,000 Rio Tinto shares and that whilst you would not normally do this, you were willing to sell some of those shares on the basis they would increase in value in January 2014, which is a time at which the Maurers would need the money for the house.  You told them you wanted to help them with the beach house and that it was a way for you to contribute to the memory of Mr and Mrs Maurer's late son.

17Between the 3rd and 17 September 2013 Ms Maurer provided you with five cheques totalling $475,000 for the purchase of 9200 Rio Tinto shares.  You provided two documents entitled, 'Agreement Note', setting out the number of shares purchased.  The guaranteed profit that had been made and that you would sell the shares and return the purchase price of the shares and profits.  In January 2014 Ms Maurer asked you whether you had sold the shares, you saying you were not going to sell them yet as you wanted to receive a dividend payment in March/April 2014.

18Then in March 2014 you and your husband suggested the Maurers purchase more Rio Tinto shares held by the same well known musical entrepreneur mentioned to Mrs Kunaratnam, who needed funds due to the cancellation of a concert.  On 28 March 2014 Mrs Maurer, you and your husband went to the bank where $100,000 was transferred directly into your account.  A third agreement note was signed, stating that Mrs Maurer would receive $100,000 along with profits in approximately two weeks' time.  You did not purchase the shares, nor did you purchase any shares for the Maurers but instead used the money for your own purposes.  It appears that in November 2013 Mrs Maurer obtained judgment against you for the amount owed to her, and between April and July 2014 made numerous requests for you to sell the shares and return the funds in accordance with the judgment.  On 11 July 2014 you gave Mrs Maurer a cheque for $420,000, which was, however, dishonoured.

19Charge 5 of the rolled up charge reflecting the total amount of property obtained from Mr and Mrs Maurer where each transaction involved a sum greater than $50,000, thereby constituting a continuing criminal offence.  The total amount you obtained from Mr and Mrs Maurer was $575,000.  In around March 2015 Victoria Police began an investigation into your conduct in relation to Mrs Kunaratnam.  During that investigation transactions relating to Mr Simpson and Mrs Maurer were identified.

20On 21 December 2016 you were sentenced by His Honour Judge Wischusen of this court to a total effective sentence of four years with a minimum term of two and a half years in relation to five charges of obtaining financial advantage by deception.  This related to offending by you in July and August and September 2014, by which time Mr and Mrs Maurer and Mrs Kunaratnam had obtained judgments against you for money you owed them.  Bankruptcy proceedings against you were also on foot.  Again, the victims in this case, a couple, Linda and Chris Matich, were known to you, having been in regular contact with your husband for over 20 years.  The Matichs had sold their family home and were looking to purchase another but wanted to place their funds in a short term investment.  In short compass, you represented to the Matichs that you managed your own shares on a full time basis and looked after the share portfolios of a number of others, one of those clients being a person in the music industry who needed to dispose of Rio Tinto shares in a hurry, which could therefore be picked up for less than their market value.  The Matichs paid money to you to be invested in the purchase of those shares and again you composed an agreement note confirming the arrangement to invest the funds and return the capital of profits by a certain date.

21Again no shares were purchased with those funds, which were instead used by you and your husband to pay household expenses and credit card debts.  The Matichs were induced to repeat this process four times.  No shares were ever purchased, the moneys also being used by you in the way outlined.  The total of sum being obtained from them being $443,812.  Some of these moneys were used by you to pay off creditors in order to stave off the forthcoming bankruptcy. The Matichs were the first of your victims to approach police and you declined to be interviewed on that occasion.

22In relation to the matters before this court police sought to interview you in December 2016, at which time you were serving the sentence imposed by  Judge Wischusen, and again you declined to be interviewed.  Ultimately charges involving offending to be heard before this court were all filed by 13 December 2018 and the matter was resolved at a committal hearing on 7 October 2019.  There had been offers and counter-offers in the period leading up to that date and your plea is considered an early one.  No witnesses have been called to give evidence and face cross-examination and the community have been spared the time and expense of a criminal trial.  The maximum penalty for obtaining property by deception is 10 years' imprisonment.  The maximum penalty for obtaining property by deception, which comprises a continuing criminal enterprise offence is 20 years' imprisonment.

23I now turn to the impact your offending has had upon the Simpsons, the Maurers and Ms Kunaratnam.  It is quite clear from the victim impact statement of each that the effect of your offending has been nothing short of devastating.  Understandably each person in light of the long and close relationship you had with them feels utterly betrayed by you.  In physical terms the lives of each of your victims have been irreversibly adversely affected.  The Simpson lost the nest egg they had put aside for their retirement.  In his victim impact statement Graeme Simpson stated, 'The sacrifices we made to ensure we had a comfortable, self-funded retirement without relying on assistance suddenly evaporated.  This crime has necessitated a curtailing of our weekly, monthly and annual expenditure, revising utility plans, household budgets, even our grocery spending.  Life for us will never be how it was and how we had planned our future to be'.

24Due to the contractual relations that the Maurers had entered into in order to build the house in Rye, they had to re-mortgage their family home and then ultimately sell it because they had no longer had access to the moneys you had disposed of.  They were left with funds only sufficient to allow them to purchase a house 120 miles away in regional Victoria, far from their children, grandchildren, friends and community.  This is clearly a continuing source of grief for them.  They lost all the money left to them by their parents, and most tragically, their deceased son.

25Ms Kunaratnam too lost her life savings, particularly important to her due to the onset of multiple sclerosis, which has meant she can no longer work and has only been able to cope due to family support.  She has had to access a pension from her superannuation savings and the future security of her children has been, in her words, 'adversely affected'.  Accompanying the physical hardship resulting from your deceptions, each victim has been left with what I am satisfied are serious psychological impacts which continue to this day.  Both Mr and Mrs Simpson developed stress disorders resulting in ongoing hypertension medication in relation to Mr Simpson and Mrs Simpson ultimately developing severe stomach ulcers requiring surgery.  Mr and Mrs Maurer each described the enormous emotional toll the deception had upon them, involving high levels of stress and anxiety, sleep interruption, trauma and grief around the sale of their family home, enormous stress on their marriage, a loss of confidence in themselves and a lack of trust in others.

26Ms Kunaratnam wrote of, 'The stress, financial and uncertainty associated with the legal proceedings were enormous and impacted on my life in a huge way'. She wrote, 'It is so very difficult to move on.  I constantly berate myself for jeopardising my family's future.  I will spend the rest of my life burdened both mentally and financially by Anita's actions'.  Overall the victim impact statement made for most distressing reading and made it clear that your offending devastated these five people financially and psychologically in ways which are likely to affect them for the rest of their lives.

27I now turn to your personal circumstances.  You are now 60 years of age and have no prior convictions.  You were born in northern Sri Lanka, your parents separating when you were about nine months old.  Your mother raised you as a single parent and you had virtually no contact with your father until in your late teens.  Whilst it appeared you were well cared for and attended a private girls' school throughout your primary and secondary education, the conservative attitudes of Sri Lanka in the 1960s towards divorce caused you and your mother some distress and feelings of social ostracism.

28You were academically bright and successful in a number of activities at school, ultimately being made school captain in your final year.  You hoped to study law but the standardisation process whereby students of Tamil ethnicity were required to obtain higher grades in order to gain a place at university deprived you of that opportunity.  According to the psychological report prepared for the hearing before His Honour Judge Wischusen, dated 24 October 2016, authored by psychologist Elly Giovanni, which was tendered on the plea in this court, you were offered a move to India to live with relatives to pursue a legal career but wished to be self-sufficient, and instead, obtained a job as an English announcer with a radio station in Columbo.  There you lived for a time with your father and as the job was a part time one, you also obtained full time work at a local bank in the electronic data processing section.

29Your mother was concerned to see that you married and in 1983, when her health was failing, arranged a marriage to your husband, following which the two of you emigrated to Melbourne.  From 1987 to 2002 you worked in payroll data processing, then for a company which provided binding supplies, ultimately starting your own company in that field.  Your husband worked in the entertainment industry as a music commentator for The Age, and in 1994 in a media company.  The marriage was successful and you and your husband both prospered financially and the two of you enjoyed a comfortable lifestyle involving a great deal of overseas travel and pursuit of your husband's business interests and in the process obtained a degree of status in the Sri Lankan community here.

30In her victim impact statement Ms Kunaratnam, who has known you since she was a child, described you as an upstanding citizen of the Sri Lankan community who raised funds for charities in Sri Lanka, organised fundraising events and whose philanthropy was well regarded.  She described you and your husband as living in, 'luxurious rental premises in Canterbury', and described overseas trips where you and your husband frequently flew business and first class, staying in luxurious hotels.  You yourself described yourself to

Ms Giovanni as being, 'very wealthy', and the businesses of both you and your husband as doing, 'extremely well'.

31In 2000 you began investing in the share-market, initially through Goldberg Sachs and financially did very well, making a considerable amount of money in a short time.  You then became extremely interested in shares and trading, eventually investing yourself, and avoiding commissions you would otherwise pay to stockbrokers.  It is clear your success on the share market became well known in the Sri Lankan community and, indeed, a number of newspaper articles were written about your trading abilities.  According to your counsel you became obsessed with the share market, staying up at night to monitor international markets, at the same time running your binding supplies business during the day.  You became reliant on Valium and Mersyndol in order to keep going.

32Eventually members of the Sri Lankan community approached you for investment advice and it appears that although not a registered stockbroker, you invested money on behalf of a considerable number of people, including Ms Kunaratnam's parents.  In 2004 you began trading in the Contract For Differential CFD market, which is a form of derivative trading whereby investors speculate on rising or falling prices in the global financial market.  It is a risky form of trading compared to traditional share trading markets, being highly volatile.  Initially you experienced wins but soon began to incur enormous losses.  In addition to using your victim's money to pay for personal expenses, you continued to play the derivative market, hoping to recoup the money you had lost.  According to psychologist, Gina Cidoni, who's report, dated
26 February 2020, was tendered on the plea, your behaviour demonstrated a, “classic downward spiral reminiscent of addiction with initial wins then losses then attempts to recover the losses but instead she lost more and more of other people's money as she tried to dig herself out of a deepening hole”.

33Personality testing by both Ms Giovanni and Ms Cidoni resulted in a diagnosis of an Adjustment Disorder, being a disorder which occurs where a person is unable to adjust or cope with particular stressors or major life events.  In your case this was the losses you incurred whilst trading on the dividend market.  Ms Cidoni describes an adjustment disorder as a disturbance of conduct involving the development of behavioural issues that can include unlawful conduct.  She wrote, 'The manifestations also produced difficulties with planning ahead and making good decisions'.

34This is posited as an explanation for your decision to continue trading for many years in the derivative market despite the enormous losses you suffered and you then resorting to criminal behaviour whereby you swindled the Simpsons, the Maurers and Ms Kunaratnam of their money.  You were also diagnosed by Ms Giovanni as suffering severe depression and strong suicidal ideation in the face of a term of imprisonment in 2016.  Ms Cidoni believed that you developed depression and anxiety when you started experiencing losses whilst share trading, and described you as still suffering depression but no longer presenting with suicidal ideation.

35Both psychologists found in your personality what Ms Cidoni described as, 'Features of narcissism and histrionic traits with grandiosity, attention seeking, risk taking and egocentricity, although not sufficiently to constitute a full diagnosis of personality disorder'.  Ms Cidoni wrote, 'However, these enduring traits means that she struggled with insight, self-examination and denial that was pertinent at the time of the offending, where she did not cease the behaviour'.

36Ms Cidoni also wrote, 'She looks for solutions to her problem that do not require self-examination.  She struggles to postpone gratification and there is also significant rationalisation.  She can be avoidant of problems and responsibilities.  There is a denial of psychological and interpersonal problems and vulnerabilities.  There is a tendency for attention seeking grandiosity and having a martyr complex'.  Ms Cidoni also wrote that you have, 'Feelings of persecution and feeling hard done by and having difficulty trusting others.  Other traits include egocentricity, self-righteousness, risk seeking, agitation, feeling misunderstood and having a tendency to project conflicts and responsibility'.

37Prior to your imprisonment you and your husband were forced to give up your rental premises and were residing with your husband's sister.  Your husband remained supportive of you and visits you in gaol, although he did not attend the plea hearing.

38I now turn to legal submissions made on your behalf.  Your counsel conceded that the gravity of your offending was high and that the only appropriate response was a term of imprisonment to be immediately served.  First,
Ms Willard submitted that your plea of guilty demonstrated that you had taken responsibility for your offending and was of considerable utilitarian benefit by saving the community the time and expense of account contested committal and a trial and sparing the witnesses the ordeal of giving evidence and facing cross-examination.

39Further, she submitted the plea was also indicative of your remorse, noting that you had repaid $780,000 to Ms Kunaratnam, being declared bankrupt in 2014 and referring to Ms Cidoni's report where the opinion was that despite the personality characteristics that I have outlined, you were remorseful.  Secondly, she submitted that there had been considerable delay in this matter not attributable to you, which caused anxiety and significant stress, a form of punishment in itself.  Third, she submitted that totality was an important principle for the court to take into account in light of the sentence imposed by Judge Wischusen in 2016.  Fourth, she relied on the fifth and sixth limbs of Verdins based on your diagnosed Adjustment Disorder, which could make imprisonment more difficult for you than the normal prisoner in good health, and because there was a serious risk of imprisonment having an adverse effect on your mental health, referring also to the diagnosis of depression in that regard.  Fifth, she relied on your previous good character, you not having offended until the age of 48.  She also relied on your engagement in numerous community activities, submitting you had held employment, been law abiding and provided generously to organisations within the Sri Lankan community, such as the Tamil Christian Congregation of which you had been a member since 1984.

40Finally Ms Willard submitted that you had good prospects of rehabilitation given your age, lack of prior history, remorse and humiliation at your offending and the positive programs you had engaged in whilst undergoing sentence.  I received references from theatrical group of Somebody's Daughter, attesting to your participation in three productions, which were described as invaluable, I should add this is a theatrical group involving female prisoners, and the reference spoke of your own efforts in relation to other prisoners also participating in those productions, which were also described as highly supportive.

41A second reference was received from Dr Marietta Martinovic, a senior lecturer at RMIT University attesting to your participation in the Inside Out prison exchange program, and she described you as having obtained outstanding academic achievement involving extraordinary participation and demonstrating unflinching dedication to these programs. Dr Martinovic described you as having incredible potential for engaging in criminology related education, which she wishes to continue with you on your release.  Finally, I received a reference from Anh Nguyen, the Buddhist chapel at Dame Phyllis Frost Centre attesting to your attendance at the three hour services held there every Saturday.

42Ms French, on behalf of the prosecution, submitted that the gravity of offending was indeed serious, spanning eight years and involving a gross breach of trust of people who considered you a close friend.  She submitted that you had encouraged and persuaded them to keep investing and to reinvest dividends, and that because of these friendships you were able to manipulate your victims, for example, providing support and concern for Ms Kunaratnam as her multiple sclerosis developed.  She described the means by which you obtained moneys from Mr and Mrs Maurer as particularly distasteful, involving as it did, an exploitation of their desire to create a holiday house for their family in memory of their departed son.  Ms French submitted that the plans around the deceptions were elaborate, involving agreement notes, emails, calls, quarterly reports, and the implementation of false dividend payments in order to prolong the risk and yet nothing was invested.  She said it was noteworthy that you were not in a particularly financially troubled position when you began these deceptions.

43She said the prosecution did not dispute that you had used much of the money to play the derivative market but that it should be noted you also used it as you saw fit in terms of personal expenses.  Ms French submitted that the repayments made to you by Ms Kunaratnam of $780,000 and to Mr Simpson of $8900 was a small percentage of the moneys owned and, it would seem, was obtained by you through the defrauding of other and further victims.  She described this essentially as, 'Robbing Peter to pay Paul', and submitted it could not be regarded as a mitigatory factor.

44Ms French submitted there had been a devastating impact on the victims of your deceptions.  Insofar as your previous character is concerned it was her submission that prior good character was not an uncommon feature in cases of this kind and that indeed you had not been of good character for a period of eight years, you continuing to offend until September 2014.  In that time you defrauded multiple victims of millions of dollars.

45Insofar as prospects of rehabilitation were concerned it was Ms French's submission that those prospects could be regarded as reasonable only in light of the gravity of your offending and the duration of it.  It was her submission that this mitigatory principle should be subjugated to the principles of general deterrence, denunciation and just punishment.  Ms French also submitted that you had shown no demonstrable remorse, pointing to Ms Cidoni's assessment of your lack of insight or contrition for the harm that you had caused.

46Ms French submitted that the mitigatory wait of delay in this case should be reduced.  She submitted that the delay had not been undue or unreasonable and should not play a significant mitigatory role in the sentencing exercise before me.  It is worth noting here that after an unsuccessful approach to ASIC Ms Kunaratnam made a statement to police on 29 January 2015.  Police received materials for her in April of that year and eventually a request was made for a forensic accountant as investigations continued to lead to further victims.  That accountant continued investigators to mid-2017.  Ms French submitted that cases of this kind often involved complex and lengthy investigations and this had very much been the case in this particular series of offences.

47Finally, Ms French submitted that the application of the fifth and sixth limbs of Verdins should not be applied to any significant degree.  She submitted that, as Ms Cidoni put it, you are, 'Making the most of prison experience', and essentially there was not strong evidence that this was having a particularly adverse effect upon you.

48Generally speaking, I accept the prosecution's submissions as to the mitigatory factors in your case.  You are, in my view, entitled to a utilitarian benefit for your plea of guilty but I do not accept that it is particularly indicative of remorse.  Whilst you were entitled to exercise your right to silence or to refuse to be interviewed by police, you were certainly in a position in December 2016 when you had already received a sentence of imprisonment from Judge Wischusen to provide information to police which could have well reduced the length and complexity of these investigations.  This would have been of quite some relief to your victims.  The psychological report of Ms Cidoni, in my view, does not assist you in that regard.

49You expressed a deal of remorse, both to the effects that your offending had upon your family and for your victims, to Ms Giovanni in 2016 but then failed to act upon the contrition that you expressed by cooperating with police when they thought to interview you in December 2016.  This is not something, of course, for which I can penalise you but it means that on the materials before me I am unable to conclude that your plea of guilty deserves more than utilitarian value.  I agree with Ms French's submissions as to your good character.  For eight years you practised an elaborate scheme of deception upon persons able to be manipulated by you because of their friendship with you over many years.

50In those circumstances it is my view that the good character claim by you prior to that has lesser weight.  I also accept that it is not uncommon in cases involving long term deceptions for the perpetrator to be without previous convictions.  Likewise it is my view that it is not possible to conclude that your prospects of rehabilitation are more than reasonable in the light of your offending, its gravity and duration.  I accept that you have a good previous record of employment.  You are an intelligent woman who continues to have the support of her husband.  That offending, however, together with the personality traits uncovered by psychological testing do not, in my view, allow for a more optimistic prognosis than this.

51Insofar as delay is concerned I do not find that the delay in this matter has been undue or unreasonable.  Your offending came to police attention in early 2015.  As the informant told the court, investigation then revealed there were other victims besides Ms Kunaratnam, and the services of a forensic accountant were then required.  As Charles JA stated in DPP v Bulfin [1998] 4VR 114 at 131
to 2:

'Whatever the motivation, offences of the kind here in question almost invariably involve a careful and calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money and frequently losses (often tragic in their impact)'.

52His Honour continued:

'The offender often holds a position making it possible, or has the ability to disguise or camouflage the conduct in question.  Detection is difficult.  The investigation of the crime usually lengthy and very expensive and the problems of trial and proof will frequently be extreme'.

53I accept also that, as the informant said, that police needed to be in a position to know which matters were to be proceeded with before seeking to question you as they did in December 2016.  The delay in this case, in my view, arises firstly from your undetected offending for a period of eight years, followed by a necessarily complex and lengthy police investigation.  The weight that I attach to what is often a significant mitigatory feature is much lessened in your case.  Insofar as the application of Verdins is concerned I note that in 2016 prior to your incarceration you presented as exhibiting strong suicidal ideation with a definite plan of how to carry this out in the face of a forthcoming term of imprisonment.

54Ms Cidoni, by contrast, noted that whilst your depression had continued, there was no indication of suicidal ideation when she interviewed you in 2020.  I note that, as she stated, you appear to be making the most of prison services.  I am unable to conclude that your ongoing incarceration has had the deleterious impacts on your mental health prophesied by Ms Giovanni in 2016.  I accept that you continue to suffer from an Adjustment Disorder and a depressive condition as outlined by Ms Cidoni, the latter probably being affected to some degree by the imposition of a further term of imprisonment, but again, whilst there will be some allowance for this principle, its weight is somewhat reduced.  Charles J in Bulfin continued:

'In my view, the element of general deterrence will usually carry particular significance in sighting for crimes such as the present both in relation to the total effective sentence and the non-parole period, together with a requirement for strong denunciation by the sentencing court'.

55I agree that those principles have particular significance in your case.  I regard the gravity of your offending as serious and your moral culpability as high.  Notwithstanding that your early life experiences may have left you with psychological difficulties that have been outlined in the reports, the fact of the matter is that for a period of eight years you grossly exploited longstanding friendships with people you knew well to be in vulnerable positions -
Ms Kunaratnam, by virtue of this serious debilitating illness of multiple sclerosis, Ms Simpson's loss of employment and the stage of life that the Simpsons were at, that is close to retirement, and the Maurers also at the end of their working lives, seeking to build a holiday house, using the inheritance of those they loved and grieved for, in particular, their deceased son.  I do not regard the explanation of your losses on the derivative market to be anything more than that, an explanation.  Certainly there is in that explanation no excuse for your callous, predatory and ruthless use over many years of moneys manipulated out of your friends that you knew well to be critical to their financial wellbeing and standard of living.

56There is no doubt, as I have undoubtedly made clear, that the effect of this offending has been horrendous and devastating in the extreme and five people's lives have been irrevocably changed for much the worse in virtually every respect as a result of your offending against them.  In sentencing you I do take into account the mitigatory factors raised but for the reasons I have already given, in my view, the weight of those factors is much reduced.  I regard the principles of general deterrence, just punishment and denunciation to be the dominating factors in the sentencing exercise before me.

57I have not addressed the question of totality.  This is a factor which does have particular weight in the sentencing exercise I must undertake.  You are eligible for parole on 3 June 2019 and the sentence imposed by Judge Wischusen expires on 13 December 2020, by which time you will have served four years' imprisonment.  In other words, because of this further offending and these proceedings you did not receive parole and will serve the totality of Judge Wischusen's sentence.  In my view, this is a significant matter which I must take into account in determining the appropriate sentence which must encompass both these matters and the charges for which you were dealt with by Judge Wischusen. I am just going to depart from my formal sentencing remarks here because I wish to explain the principle of totality to those appearing in court, who are the authors of victim impact statements.

58As you have heard, Ms Eliezer has already been sentenced to a term of imprisonment where she was entitled to be released on parole.  She was not released on parole, so that has been an effect I must take into account.  What I have to do is because that matter was heard separately I have to take that into account, make an assessment about what is the appropriate total sentence Ms Eliezer should receive which includes the sentence from Judge Wischusen.  Does that make sense?  I have to give an overall estimate?

59Because of that overall estimate and the fact that it has to be appropriate, there sentence that I impose on Ms Eliezer which starts today, would be less than I would otherwise impose because it takes into account the sentence imposed by Judge Wischusen.  Does make sense to you?  All right.  So, for example, if Ms Eliezer had presented before this court on all matters, including the matters for which she was sentenced in December 2016, the sentence I would have  imposed would be a larger one but I have to moderate the sentences today even though they comprise the greater part of the offending, because of that previous sentence.  I hope that is of some sense to you and I am certain the prosecutor will explain it to you, all right?  Thank you.

60Ultimately I have determined, and it is unusual that I would actually spell out overall totality sentence but I think in light of the understanding for those who have been the victims of this offending, that an appropriate total sentence including the offending relating to Judge Wischusen's sentence is nine years with a minimum of seven years.

61As I said, that includes the charges dealt with in 2016.  You have to date served around three years and four months' imprisonment of that sentence.  The total effective sentence I will impose and which will run from today has been calculated by reference to that overall sentence and adjusted to that ultimately in time that will be the sentence that you end up serving.  That is in terms of what I impose today is in addition to what Judge Wischusen imposed.

62Further, cumulation of individual sentences has been significantly moderated to allow for the effects of their totality, as I have outlined.  In other words, I have not cumulated the different sentences as much as I would have if I had not had to take the principle of totality into that regard because of the limitations around what I can appropriately sentence you to.

63Could you stand up, please?  I therefore sentence you as follows.  On
Charge 1 you are sentenced to three and a half years' imprisonment.  On Charge 2 you are sentenced to 18 months' imprisonment.  On Charge 3 you are sentenced to five years' imprisonment.  On Charge 4 you are sentenced to six months' imprisonment.  On Charge 5 you are sentenced to three years and six months' imprisonment.  The base sentence will be the sentence imposed on Charge 3, which is five years' imprisonment.  I order that three months and two weeks of the sentence imposed on charges 1 and 5 and one month of the sentence imposed on Charge 2 be served cumulatively to the sentence imposed on Charge 3 and to each other.  The total effective sentence therefore is five years and eight months and I order that you serve a minimum term of three years and eight months before becoming eligible for parole.

64Pursuant to s.6AAA I declare that had you not pleaded guilty I would have sentenced you a term of six years and eight months' imprisonment and order that you serve a minimum term of four years and eight months' imprisonment.

65Thank you.  You can take Ms Eliezer down, thank you.  So is everyone clear on that principle of totality?  Which can be a difficult one to explain, much less understand.  Thank you.  Thank you.  I thank counsel for your assistance and - is that Ms Welsh?  No?  No one else is coming.  All right then.  Thank you very much.  We will stand down to - it is five to 11.  I will briefly stand down and I will come back on the Bench at five past 11. Thank you very much.

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