Director of Public Prosecutions v Horne

[2020] VCC 954

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

AT MELBOURNE
CRIMINAL JURISDICTION

Case No. CR -19-01531

DIRECTOR OF PUBLIC PROSECUTIONS

v

GEOFF HORNE

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JUDGE:	HER HONOUR JUDGE MARICH
WHERE HELD:	Melbourne
DATE OF HEARING:	15 June 2020
DATE OF SENTENCE:	29 June 2020
CASE MAY BE CITED AS:	DPP v Horne
MEDIUM NEUTRAL CITATION:	[2020] VCC 954

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr L. Harrison	Office of Public Prosecutions
For the Accused	Mr T. Smurthwaite	James Dowsley & Associates

HER HONOUR: 

1Geoff Horne, you have pleaded guilty to an indictment containing two charges of theft, each of which carries a maximum penalty of 10 years' imprisonment.

2The circumstances in which you came to commit those offences are set out in the Summary of Prosecution Opening on Plea (Exhibit A), which was read into evidence at your hearing. The Prosecution also tendered an Outline of Submissions on Sentence for my consideration (Exhibit B). Since the plea in mitigation of penalty, I have received confirmation from the Office of Corrections as to your suitability for a Community Corrections Order, and I will mark that assessment report as Exhibit C.

3In addition to making oral submissions, your counsel relied on a Written Outline of Submissions (Exhibit 1), and Supplementary Submissions (Exhibit 2), a Bundle of References (Exhibit 3) and a Sentencing Snapshot prepared by the Sentencing Advisory Council (Exhibit 4).  I have since received supplementary material, which I will receive and exhibit as Exhibit 5. I have had regard to these in formulating my reasons for sentence in addition to the matters raised in the course of the plea in mitigation of penalty.

Circumstances of the offending

4At the time of your offending, you were the sole registered owner of a business called LEAP Estate Agents trading as Geoffrey Horne Real Estate and LEAP Estate Agents. You worked as a licensed real estate agent.

5Leanne VAN and Fred KHALIL were the owners of property at 14 Michael Court, Berwick and they engaged LEAP. You had previously sold a property for their friends, and, in July 2018, they engaged you as their estate agent to facilitate the sale of their property. In this month, you advised Ms VAN and Mr KHALIL that you had found a buyer for their Berwick property. A sale price was agreed to and a deposit of $71,500 was paid into your trust account by the purchaser, via one payment of $50,000, and the balance of $21,500 paid on 16 July 2018.

6Between 13 July and 20 August 2018, following your receipt of these trust monies belonging to Leanne VAN and Ed KHALIL, you withdrew the entirety of the $71,500 from the trust account in 28 transactions and used the money for your own purposes. This is the behaviour referable to charge 1 on the Indictment, of theft.

7Following settlement of the property, VAN and KHALIL attempted to have the deposit released to them by you. No payment was made.

8Eric and Stephen MILLS were father and son and joint owners in a property at 26 Joyce Street, Cranbourne. You had previously sold a property for their neighbours, and, in May 2018, they engaged you as their estate agent to facilitate the sale of their property.

9In late August 2018, you called Stephen MILLS to advise that there was some interest in the property and a sale price was agreed. The MILLS instructed We Care Conveyancing to perform conveyancing tasks in relation to the sale. On Monday, 20 August 2018, Aston STECHLING agreed to purchase the Cranbourne West property through you and LEAP Estate Agents, for a total of $520,000. Mr STECHLING deposited a bank cheque for $104,000 made out to Geoffrey Horne Trust Account to secure the purchase. You provided Mr STECHLING with a receipt for this deposit on 21 August 2018, and the contract of sale was signed by both Mr MILLS on 3 September 2018, noting the agreement to sell the Cranbourne West property, for a purchase price of $520,000 with a deposit of $104,000.

10Between 23 August and 27 September 2018, following your receipt of these trust monies belonging to Stephen MILLS and Eric MILLS, you withdrew the entirety of the $104,000 from the trust account in 18 transactions and used the money for your own purposes. This is the behaviour referable to charge 2 on the Indictment, of theft.

11On 26 September 2018 STECHLING authorised the early release of the deposit funds to the MILLS. On 18 October 2018, We Care Conveyancing forwarded an email to you including the Deposit statement and requesting that the deposit be released to the MILLS. We Care Conveyancing called you on 22, 23, 25, and 31 October 2018 but their calls were unanswered and so they left messages, and they emailed on you on 22 October.

12On 19 November 2018 We Care Conveyancing sent a further email to you advising that the sale of the property had settled and a further request for the deposit funds to be transferred to the MILLS was made, however no response was received.

Investigation, arrest and interview

13Your offending came to police attention when, on 7 December 2018, Stephen MILLS made a report to police as he had still not received the deposit monies. Police executed a search warrant on Westpac Bank confirming the withdrawals constituting your acts of theft.

14On 2 May 2019, police arrested you and you were interviewed. In your answers, you told police that your trust account was there to hold deposits of monies from a purchaser prior to settlement, and that those monies were released to the vendor less the fees due, which was a 1% commission. At the time of your offending, you said, business had slowed down, and when your business closed it still owed two vendors the deposits.

15You admitted that you used trust monies to support yourself and the business while still trying to pay out all the vendors. You admitted that you knew you shouldn’t do this, but you always thought you would be able to catch up, but then your business wasn’t going good, and you couldn’t catch up. You got to a point where you were taking money from the next sale to pay the last sale, but then the market stopped and you couldn’t sell any more.

16At the time of the interview you were $200,000 in debt, including the amounts taken, and debt on credit cards. Your transfers went into a working account for your business, for the payment of business bills and living bills including rent, as well as a personal debt, and to cover other deposits.

17You said that you knew that trust monies were protected through the property fund at consumer affairs, and that they would be paid to clients, and nobody would miss out on any money. You said that you made sure that it had affected the least amount of people, and they’d be paid by the property fund. You had not been able to pay back the property fund, but you were intending to start a new business and put the money aside to pay them back.

18You said that you knew that what you had done was wrong, and the vendors would have gone through heartache, but the system has it in the back of your mind that they are getting paid back.

Plea of guilty

19You were charged following interview, and you proceeded at committal mention by way of hand up brief on a plea of not guilty, without cross examining any witnesses. You eventually entered a plea of guilty at further initial directions hearing in this court. 

20I accept and take into account in mitigation of penalty that you pleaded guilty at what I would consider to be an early stage without having inconvenienced any witnesses and, as submitted by your counsel, that this plea is indicative of remorse as well as having utilitarian value.  In addition to your cooperation with police, and the remorse indicated by your plea, you have expressed your contrition in addition to other persons who have provided references in this case, to which I will return.

Personal circumstances

21You were, at the time of the offence, 53 years of age and you are now 55. 

22You were born in Sydney and completed part of year 12 at Ashcroft High School. Your parents are in their 80s and live in Cranbourne North. You have a brother whom you have not seen for many years, and another brother sadly died in a car accident at the age of 19, when you were only 16.

23You were married in 1988 and moved to Melbourne as a newlywed, eventually separating in 2004.

24You are the loving parent of a son Benjamin, now 28 who has a master’s degree in landscape architecture and works for a company involved in construction work, and a daughter Emily, now 26, who has completed a bachelor’s degree in photography and runs her own business. You have been the sole carer of your children since they were aged 13 and 10 respectively, and both have provided references to me on your behalf.

25Ben told me that he has always had a very close relationship with you, and you have always supported him and done the best you could to help him, and Emily. He says that your children are your number one priority, and you made sacrifices to be their main carer. You are a loving and caring son to your own parents, and you visit your mother regularly for coffee and cake, and you help her out where you can as she has two metal hips and uses a walking frame. Ben has also told me that when he was younger you coached junior rugby league and basketball teams, some of which he was in, and also other teams.

26Emily told me that you are the best person she knows – caring, loving and always there for her. She speaks to you nearly every day, and you are the rock of her family. You are a wonderful father to her and she will always be there for you. She knows that you regret everything.

27Your parents Ron and Judy Horne told me that they rely on you a lot, and you never hesitate to help, and you are always there when they need you. Since the coronavirus has hit, you have been doing their shopping, assisting with the house cleaning and all the running around. They told me that you told them what you had done, and you were very regretful for your actions. You have told them that you just want to make things right again and will work hard to do so. They love you very much.

28You have been employed for the most part since a young adult. After leaving school, you worked for Qantas and joined the New South Wales Police Force, resigning when you came to Melbourne in 1988. You were then employed in various sales positions from 1988 until 2001, reaching managerial roles with several companies. In 2001, you suffered neck injuries in a car accident and had some time out of the workforce as a result. In 2006, you started to work in real estate with Jacksons Real Estate, which closed down in 2010 – you then found similar work with other agencies, before you established yourself as a sole trader, sometimes sub-agenting with Eview Real Estate.

29In 2011, you experienced depression and you were prescribed antidepressants.

30I am told that you have had enduring financial problems, which have been described to me in your counsel’s Supplementary Written Submissions (Exhibit 2) and did not derive any cash benefit from the sale of your matrimonial home in 2010. You commenced your business when you could not find suitable employment and did not qualify for Centrelink payments. You worked as an Uber driver at one point in 2017. You have in recent times experienced insecure living arrangements, and have couch surfed, lived in a property rented by a friend, then in an apartment rented by your son.

31In May 2019, the month of your arrest, you became unemployed but you have now established a business called Real Estate Agents’ League, the purpose of which is to provide packages of advice and support to real estate agents, particularly those who are working as sole traders. Your counsel informed me that you have learned from mistakes made in your own experience, and you currently have 25 sole trader “clients.”

Prior criminal history

32In November 2003, you pleaded guilty in the Magistrates’ Court to charges of produce/use account to mislead/deceive, 34 charges of obtaining financial advantage by deception, and one charge of attempting to obtain financial advantage by deception, and you were convicted and sentenced to an aggregate sentence of three months’ imprisonment, wholly suspended for 12 months. I am told that the victim was the TAC, and that you failed to declare income received whilst you were in receipt of TAC benefits on some 34 fortnightly occasions, which is of course, over more than a year.

33Your counsel submitted that the weight to be attached to this matter is diminished by the significant amount of time which had passed since the conviction was recorded. I note the passage of nearly 15 years since that conviction was recorded and the commencement of this offending but I still afford weight to the matter given that on that occasion your offending occurred over a period exceeding a year, you received a sentence of imprisonment, wholly suspended, for the opportunistic and dishonest obtaining of monies, and yet this offending, so similar in purpose, still occurred.

Prospects for rehabilitation

34It has been submitted on your behalf that you have very good prospects for rehabilitation. 

35Your counsel referred to the combination of the following facts in your case:

·     your limited and dated criminal history;

·     your insight into the wrongness of your conduct, cooperation with police and remorse;

·     your plea of guilty at an early stage;

·     your strong support from family, and

·     your age and the unlikelihood of your reemployment into a position of trust given that you have lost your estate agent’s license.

36I consider, notwithstanding the nature of your offending and its similarity in purpose with your earlier matter, that in view of these circumstances, you have good prospects for rehabilitation as has been submitted and I give that weight.

Gravity of your offending; moral culpability

37I accept the prosecution’s submission that this offending is serious and concerning. You received very substantial amounts on your clients’ behalf into trust, and then you immediately brazenly misused your fiduciary position to draw down those monies for your own purposes. Your charges involve rolled up offences for 46 separate smaller transactions described in the schedules to the Indictment, each of which separately was in breach of your obligations as trustee.

38When evaluating your moral culpability, I note that you did not use the funds to fund an illicit habit such as gambling or the consumption of drugs. Your personal and business finances were in tatters, and you resorted to stealing from your beneficiaries in order to keep your modest lifestyle intact and to repay monies that you had taken from your other clients (though you are not implicated in any criminal acts in relation to those transactions). This is marginally in distinction from other cases involving breach of trust where the funds were diverted to enable a lavish lifestyle.[1] You knew you were in the wrong and I take that into account as well.

[1]Brancatella v The Queen [2016] VSCA 94, [23].

39Further, this is not the first time that you have used dishonesty as a means to obtain funds to which you were not entitled, as your prior conviction shows. That offending resulted in a sentence of imprisonment, albeit suspended. That has not deterred you from further serious offending. 

40The availability of a scheme which underwrites your dishonest acts does not mitigate your offending.

Relevant sentencing principles, current sentencing practices

41I take into account the other purposes beyond rehabilitation for which sentence must be imposed including the need for deterrence, particularly general which attracts weight in white collar criminal cases, and also specific. 

42I accept the prosecution's submission in accordance with the authorities relied upon, all of which I have read and considered, that general deterrence is a significant sentencing consideration for offending of this nature and that specific deterrence also requires weight. Your counsel told me that your real estate license has been cancelled and you are most unlikely to receive funds in trust in the future, and as I have mentioned I consider you unlikely to reoffend. It was submitted that specific deterrence is not a matter which should attract great weight in the sentencing synthesis. I prefer the prosecution submission which is that this sentencing purpose is still of relevance given your prior matter notwithstanding the passage of time.

43I must also punish you and denounce your conduct.

44I have read each case to which my attention was drawn by counsel in the course of argument and am cognisant of current sentencing practices which are one of the matters I must take into account in this sentencing exercise.[2] I am also aware of the Sentencing Advisory Council Snapshot, which was given to me by your counsel, and am conscious of the spectrum of sentences imposed for theft offences in past cases.

[2]Brancatella v The Queen [2016] VSCA 94; DPP v Bezuidenhout [2016] VCC 1070; DPP v Dalgleish (2017) 262 CLR 428, [64]-[68]; DPP v Deo [2017] VCC 57; DPP v Deal [2017] VCC 754; DPP v Howard [2017] VCC 967; DPP v Venn [2017] VCC 1043; DPP v Kirakopoulos [2017] VCC 1297; DPP v Dane [2017] VCC 1741; DPP v Ngo [2018] VCC 952; DPP v Pfeiffer [2018] VCC 251.

Sentencing submissions

45Your counsel submitted that a Community Corrections Order would represent a proportionate penalty, and adequately satisfy all of the purposes for which sentence must be imposed in this case.[3] In addition to the matters I have summarised, your counsel reminded me that, were I to sentence you to a disposition involving immediate custody, the growth of your nascent business would stall, and you would be unable immediately to start repaying the compensation that I will order.

[3]See R v Boulton [2014] VSCA 342; Dyason v The Queen [2015] VSCA 210, [40].

46I note that should I sentence you to immediate custody, it coincides with the unhappy and serious risks posed to you and other prisoners by the COVID-19 virus. A sentence would necessary involve an initial two week isolation period, and you would be deprived of some of the ordinary concomitants of custody such as face to face visits, courses, and employment activities. I take this into account in mitigation of sentence and also weigh this matter carefully in deciding the type of sentence I must impose.[4]

[4]R v Madex [2020] VSC 145, [52]; Brown v The Queen [2020] VSCA 60, [48]; DPP v Tennison [2020] VCC 343, [36].

47The prosecution submitted that a disposition without immediate custody was not available in the proper exercise of my sentencing discretion, and submitted that a sentence involving immediate imprisonment was necessary. It was added, that could involve a combination of custody and a community corrections order, and you have since been assessed as suitable for an order.

48I have been mindful of the totality principle of sentencing, and am also acutely conscious of the need for parsimony, and I have reflected very carefully upon your counsel’s submission as to the suitability of a community corrections order as a proportionate sentence in all of the circumstances of the case. I am ultimately of the view that such a disposition does not adequately satisfy all of the purposes for which sentence must be imposed in this case and I accept the prosecution’s submission that a combination sentence is necessary.

49I have also been mindful of the fact that this is your first term of imprisonment and I trust and infer that it will be of salutary effect.

Sentence

50On charge 1, theft, you are convicted and sentenced to seven months' imprisonment. 

51On charge 2, theft, you are convicted and sentenced to seven months' imprisonment, two months to be served cumulatively upon the sentence imposed upon charge 1, followed by a community corrections order, which will be of 12 months’ duration and include conditions of supervision and assessment for your suitability for offender specific programs and consequential treatment. This will commence upon your release from custody. 

52Sir, I must trouble you to consent to the order, should you be willing to do so. Upon your release from custody in nine months’ time, you will be required to attend a Community Corrections office, and you will be required to attend for supervision and assessment for offender specific programs for a period of 12 months. Are you willing to enter into that order, sir?

53MR HORNE: Yes, I am.

S 6AAA declaration

54Pursuant to s.6AAA of the Sentencing Act 1991 of Victoria, I declare that had you pleaded not guilty to these charges and been found guilty of them, the total effective sentence that I would have imposed would have been 18 months’ imprisonment with a non-parole period of nine months.

55Finally, I understand that a compensation order is sought. Is that the case, Mr Harrison?

56MR HARRISON: Yes, it is, Your Honour.

57HER HONOUR: Yes, thank you. I therefore order that Geoff Horne pay to Victorian Property Fund, Secretary, Department of Justice and Community Safety, 121 Exhibition Street, Melbourne 3000, compensation in the sum of $165,476.01. Are there any other applications to make, or orders sought?

58MR SMURTHWAITE: No, Your Honour.

59HER HONOUR: Thank you very much. Mr Harrison?

60MR HARRISON: No, Your Honour.

61HER HONOUR: Thank you. Now, we’ll just trouble Mr Horne to sign the order and then he will be remanded into custody. With thanks to you both. Thank you, I will stand down.