Director of Public Prosecutions v Ionita

[2024] VCC 1440

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

 Revised
Not Restricted
Suitable for Publication

Case No. CR-22-02038

DIRECTOR OF PUBLIC PROSECUTIONS

v

CRISTINA IONITA

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JUDGE:	HER HONOUR JUDGE CHAMBERS
WHERE HELD:	Melbourne
DATE OF HEARING:	30 August 2024
DATE OF SENTENCE:	13 September 2024
CASE MAY BE CITED AS:	DPP v Ionita
MEDIUM NEUTRAL CITATION:	[2024] VCC 1440

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW - Sentence

Catchwords: Guilty plea – six charges of theft – chartered accountant – engaged to provide accounting services to companies associated with a medical clinic – theft of $5.85 million over four and a half years – payments made into six separate bank accounts controlled by accused – serious example of the offence of theft – continuing criminal enterprise under Part 2B of the Sentencing Act 1991 - no prior convictions – previous good character – delay – utility of plea – burden of imprisonment – good prospects of rehabilitation – weight to be given to general deterrence and denunciation

Legislation Cited:      Crimes Act 1958; Sentencing Act 1991

Cases Cited:DPP v. Bulfin (1998) 4 VR 114; R. v. Verdins (2007) 16 VR 269; R. v. Arundell [2003] VSCA 69; Shiel v. R. [2017] VSCA 359; The Queen v. Roussety [2008] VSCA 259; Kruger v. The King [2023] VSCA 149

Sentence:                  Five years, nine months' imprisonment with a non-parole period of three years, six months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr A. Albert	Office of Public Prosecutions Victoria
For the Accused	Mr M.N. Keks	Bramham Lawyers

HER HONOUR:

1Cristina Ionita, you have pleaded guilty to six charges of theft contrary to s 74(1) of the Crimes Act 1958 ('the Act').

2The victims of your offending are Dr Feda Eqbal and his wife, Nabila Eqbal, their company F&N Eqbal Pty Ltd, and other companies associated with the Westgate Medical Group ('WMG'). In 2009, you were engaged to provide accounting services to the Westgate Medical Group. While you held that role, between January 2015 and June 2019 you stole in excess of $5.85 million from the victim, by way of hundreds of unauthorised transfers into bank accounts in your name or under your control. You subsequently transferred the sum of $871,860 back to the Westgate Medical Group, leaving a total of over $4.98 million that was retained in your accounts.

3In August 2020, the Supreme Court of Victoria entered two default judgements against you in the sums of $4,462,680.46 and $337,129.65 respectively. Your assets were frozen by order of the court, and the sum of $719,568 was obtained through the realisation of the frozen assets. You have made no other repayments to the victims, and it is not anticipated that they will recover any further monies lost as a result of your offending.

4You were born in March 1969 and are now 55 years old. You were raised in Romania and arrived in Australia on a spousal visa in 2007. You have no prior criminal convictions.

Circumstances of the offending

5The background and circumstances of your offending are detailed in the Prosecution Opening on Plea dated 15 February 2024, which is the agreed basis upon which you are to be sentenced.

6At the time of your offending, you were a chartered accountant, operating an accounting practice under the registered business name 'IQ Accountants'.

7In 2009, Dr Eqbal engaged you to provide accounting services to the Westgate Medical Group. At that time, the Westgate Medical Group consisted of a group of companies operating various medical practices in the western suburbs. Dr Eqbal was a director of the companies within the Westgate Medical Group and was the overall manager of the medical practices within the group.

8In your role, you were responsible for all accounting functions for the Westgate Medical Group, except for the preparation of income tax returns. Your responsibilities included payment of salaries and invoices, including your own professional fees. You were authorised to operate the various bank accounts associated with the Westgate Medical Group, including transfers to and from those accounts using internet banking, for which you held the various passwords.

9You also made payments at the request of Dr Eqbal, which were recorded in the financial records. You were never authorised to use these accounts for your own private purposes.

Charge 1 - Theft (rolled up charge)

10The first charge is a rolled-up charge of theft relating to funds you stole from three accounts held by F&N Eqbal Pty Ltd between 15 January 2015 and 17 May 2019 totalling $1,401,925.57. The rolled-up charge encompasses 72 unauthorised transactions made up as follows:

(a)   Between 15 January 2015 and 17 May 2019, in 49 transfers, you stole $843,533.38 from an account held by F&N Eqbal Pty Ltd, trading as Independent Doctors.

(b)   Between 22 June 2016 and 5 April 2019, in 13 transfers, you stole $369,929.89 from another account held by F&N Eqbal Pty Ltd.

(c)   Between 9 July 2018 and 10 May 2019, in 10 transfers, you stole $161,462.30 from a further account held by F&N Eqbal Pty Ltd, as trustee for F&N Eqbal Superannuation Fund. 

11You transferred the stolen monies into separate accounts controlled by you; being $124,954.95 into your personal account, $353,856.61 into your Quantum 1 Pty Ltd account and $923,114.01 into four separate accounts held by your company Combine Intelligence Pty Ltd.

Charge 2 – Theft (rolled up charge)

12Charge 2 is a rolled-up charge of theft relating to the funds you stole from Dr Feda Eqbal and Nabila Eqbal between 1 September 2015 and 17 May 2019 totalling $226,832.60 in six unauthorised transactions.

13This sum was stolen from an account the Eqbals held as trustees for the Eqbal Family Trust. From the total of $226,832.60, you transferred the sum of $63,820 into your personal account and $163,012.60 into the various accounts held in the name of your company, Combine Intelligence Pty Ltd.

Charge 3 – Theft (rolled up charge)

14

Charge 3 is a rolled-up charge of theft relating to funds you stole from Sayers Medical Pty Ltd, another company connected to the Westgate Medical Group, between 18 July 2016 and 26 June 2019 in the sum of $2,535,969.89, over

184 unauthorised transfers.

15Of this amount, you transferred $111,500.45 into your personal account and $2,253,117.24 into the various accounts associated with your company, Combine Intelligence Pty Ltd.

Charge 4 – Theft (rolled up charge)

16Charge 4 is a rolled-up charge of theft relating to funds you stole from two accounts operated by Hoppers Super Clinic Pty Ltd, another company connected to the Westgate Medical Group, between 11 September 2017 and 29 May 2019, totalling $601,724.19. The rolled-up charge encompasses 101 dishonest transactions made up as follows:

(a)   Between 11 September 2017 and 29 May 2019, in 80 transfers, you stole $473,851.54 from an account held by Hoppers Super Clinic Pty Ltd, as trustee for Hoppers Unit Trust.

(b)   Between 28 December 2017 and 13 May 2019, in 21 transfers, you stole $127,872.65 from a separate account held by Hoppers Super Clinic Pty Ltd, as trustee for Hoppers Unit Trust.

17Of the sum of $601,724.19 stolen from Hoppers Super Clinic Pty Ltd, you transferred $26,243.53 into your personal account, $35,009.86 into your Quantum 1 Pty Ltd account, and $540,470.80 into the various accounts in the name of Combine Intelligence Pty Ltd.

Charge 5 – Theft (rolled up charge)

18Charge 5 is a rolled-up charge of theft relating to funds you stole from two accounts operated by Heaths Medical Pty Ltd, another company associated with the Westgate Medical Group, between 28 July 2017 and 17 May 2019, totalling $1,002,073.08. The rolled-up charge encompasses 62 unauthorised transactions, made up as follows:

(a)   Between 28 July 2017 and 17 May 2019, in 49 transfers, you stole $837,745.30 from an account held by Heaths Medical Pty Ltd.

(b)   Between 18 September 2017 and 12 February 2018, in 13 transfers, you stole $164,327.78 from another account held by Heaths Medical Pty Ltd.

19Of the sum of $1,002,073.08 stolen from Heaths Medical Pty Ltd, you transferred $46,391.23 into your personal account, $62,540.60 into your Quantum 1 Pty Ltd account and $893,141.25 into the Combine Intelligence Pty Ltd accounts.

Charge 6 – Theft (rolled up charge)

20

Charge 6 is a rolled-up charge of theft relating to funds you stole from AFD Medical Pty Ltd, another company associated with the Westgate Medical Group, between

21 January 2018 and 7 May 2019, totalling $87,264.70. The rolled-up charge encompasses four dishonest transactions from an account held by AFD Medical Pty Ltd as trustee for the AFD Trust.

21You transferred the entire sum of $87,264.70 stolen from the AFD Medical Pty Ltd account into your Combine Intelligence Pty Ltd accounts.

Total

22Overall, between 15 January 2015 and 26 June 2019, you stole $5,855,790.03 through 250 withdrawals from accounts associated with the Westgate Medical Group. Most of the withdrawals were split into transfers to two or more recipients, known as 'batch transfers'. Of those, you made 429 transfers for which there was no authorised purpose, into your personal account and other accounts you controlled, being:

(a)   A total of $4,860,120.60 into the Combine Intelligence Pty Ltd accounts;

(b)   A total of $622,759.27 into the Quantum 1 Pty Ltd account; and

(c)   A total amount of $372,910.16 into your personal account.

23Of the $5.85m stolen, you subsequently transferred the sum of $871,860 back to the Westgate Medical Group from your personal and business accounts, including 20,000 that was transferred back on 8 July 2019, outside the charged period. The remaining sum of $4.98m was never transferred back to the Westgate Medical Group.

Discovery of offending and investigation

24In April 2019, Greg Nugent was appointed Chief Financial Officer of the Westgate Medical Group to take over your role. Your involvement progressively reduced, before ceasing entirely on 30 June 2019.

25In July 2019, Mr Nugent discovered irregularities in the financial records of the Westgate Medical Group, including transactions not recorded in the Westgate Medical Group ledgers and accounting system and inexplicable transfers in millions of dollars to you and your associated entities, including Combine Intelligence Pty Ltd. Mr Nugent made the connection to you after being given a document with the letterhead, 'Combine Intelligence Pty Ltd trading as IQ Accountants'.

26Mr Nugent emailed you requesting information about these transfers, but no information was forthcoming.

27On 29 July 2019, you attended a meeting with Mr Nugent, Dr Eqbal and Martin Sammut from WMG's tax accountant, Murdoch Partners, and were asked to explain the suspect transfers. You said you could not divulge the reasons for them, but said you would provide reasons and all necessary details of the transactions within two days.

28You subsequently provided evidence of some of the repayments made by you, but nothing more.

29You left Australia and travelled to Romania on 3 September 2019.

30The matter was reported to police on 3 October 2019 and a forensic accountant from the Victoria Police Forensic Accounting Unit, Mr Tony Flynn, was assigned to investigate the matter in May 2020.

31You returned to Australia on 21 November 2020 and on 26 April 2021 you were arrested and interviewed by police.

Police interview

32In your police interview, you told police, amongst other matters, that:

(a)   You had full authority to make the payments.

(b)   You had responsibility for the Eqbal family personal credit cards and accounts and could not pay anything from the accounts without permission.

(c)   Nothing could be paid without Dr Eqbal knowing it.

(d)   Dr Eqbal was checking what you were paying every day.

(e)   If Dr Eqbal wanted cash, you would transfer the amount he asked for to your own account, withdraw the funds requested in cash and bring it to Dr Eqbal.

(f)    The primary reason for transferring money into the accounts of your companies, Combine Intelligence Pty Ltd and Quantum 1 Pty Ltd, was to withdraw cash to give to Dr Eqbal.

(g)   You only did what Dr Eqbal asked you to do.

(h)   Dr Eqbal asked you to send his wife $100,000. You transferred the funds from a Westgate Medical Group account into your own account, and the next day you withdrew the funds in cash and gave it to Dr Eqbal.

(i)    Dr Eqbal lent you money a few times when you bought properties, for around $150,000. You did not have a chance to repay it and the monies were recorded as a loan.

(j)    In total, you thought you loaned between $300,000-$400,000 to purchase a property in Beechworth. You loaned $200,000 from Dr Eqbal under a verbal agreement. Dr Eqbal told you to give the money back to him as soon as possible. That within a week, you repaid the $200,000 as Dr Eqbal asked you to.

(k)   You would earn between $25,000 and $40,000 a fortnight in your accounting practice.

(l)    WMG paid you $5,000 plus GST every fortnight.

(m)     The funds you took from the Westgate Medical Group accounts were used to pay your accounting fees.

(n)   Funds paid into your company accounts, Combine Intelligence or Quantum 1, were used to pay bills and to pay staff.

(o)   You could not say how much you had transferred from the Westage Medical Group accounts to your accounts in the time you worked for the Westgate Medical Group.

(p)   It was not possible that $8m was transferred from the Westgate Medical Group accounts to your accounts.

(q)   It could not be that from $8 million, only $600,000 odd was withdrawn in cash.

(r)   In relation to your expenditure:

(i)You stated you transferred $480,000 to your daughter between 2017 and 2019. You did not know what that was for.

(ii)You gave Smart Tech $600,000 for your son to buy equipment, but then he could not sell it.

(iii)You gave money to B4 Developments to go into partnership with them.

33The analysis undertaken by Mr Flynn revealed that in 2014 you were given a loan through the Eqbal Family Trust, that was repaid in 2019. That specific loan and the repayments were noted in the financial records of the Eqbal Family Trust. No other loan agreement is recorded in the financial records.

Procedural history 

34The procedural history of these proceedings is relevant to your sentence.

35

You travelled to Romania on 3 September 2019, and you returned to Australia on

21 January 2020. You were not arrested and interviewed until 15 months later on 26 April 2021. You were charged on 27 April 2021 with a filing hearing conducted in the Magistrates' Court that day. You were also granted bail on that date.

36Thereafter, a contested committal hearing was not conducted until 10 November 2022. Earlier committal mentions were adjourned at the request of the prosecution in order to obtain relevant witness statements, including statements of forensic accountant, Mr Tony Fynn in addition to other financial records and bank statements relevant to the suspect transfers.

37

The matter was listed for a case assessment hearing in the County Court on

27 April 2023 and a plea offer was made by you on 18 June 2023. That offer was rejected by the prosecution and a counteroffer made. The counteroffer was accepted by you on 11 July 2023 and you were arraigned and pleaded guilty to the charges for which you are to be sentenced on 29 August 2023. An earlier plea date could not proceed due to your counsel's unavailability and the matter was adjourned for plea before me on 30 August 2024.

38You now come to be sentenced five years since your offending ceased in July 2019 and over three years since your arrest. I return to the relevance of this delay later in my reasons for sentence.

Nature and gravity of offending

39Unquestionably, this was extremely serious offending. The gravity of your offending is borne out by a number of aggravating features.

40Firstly, the monetary value of your deceptions, in the sense of the actual amount stolen, being just over $5.85 million, is very substantial.

41Secondly, your offending involved 429 unauthorised transactions across numbers of accounts associated with the Westgate Medical Group, without authorisation, over an extended period of four and a half years. This was not one-off impulsive offending. To the contrary, between January 2015 and June 2019, you had ample opportunity to stop your offending, but you did not do so. Instead, you continued to engage in ongoing and repeated acts of dishonesty over a protracted period, involving literally hundreds of unauthorized transactions, ultimately stealing an enormous amount of money from the various companies associated with the Westgate Medical Group.

42Thirdly, and significantly, your offending was a gross breach of the trust placed in you to fulfil your role as the professional entrusted to provide accounting services to the Westgate Medical Group. Behind each of the companies that were the victims of your offending, are the doctors who built up and established the medical clinics that formed the Westgate Medical Group. Your protracted offending was a breathtaking breach of trust.

43That your offending has had a profound impact on your victims is borne out by the victim impact statements that were read aloud at your plea hearing.

44

In order to give context to the impact of your offending, Dr Feda Eqbal has detailed his own personal background and how it led to his decision to engage you.

Dr Eqbal was born in Afghanistan; one of nine children. He studied medicine at Kabul University. He fled to Pakistan following the Soviet invasion of Afghanistan and arrived in Australia as a refugee in 1986.  

45After working in factories and driving taxis at night, Dr Eqbal qualified to work as a doctor in Australia, opening his first medical practice in 1996, being the Westgate Medical Centre in Werribee. Over the years, further clinics were opened, ultimately employing 25 GPs, 40 receptionists and nursing staff.

46Dr Eqbal says he met you through his former accountant. You told him of the 'harrowing stories' of your life in Romania, which Dr Eqbal says resonated with his own background. Dr Eqbal states he offered you his full support and gave you the role of bookkeeper with the Westgate Medical Group. As to the impact of your offending, Dr Eqbal states your offending has eroded his ability to trust people, has placed enormous pressure on his health, marriage and social life, leaving him feeling embarrassed and with low self-esteem. He states he is now left with significant debts, forcing him to sell much of his share in the various companies that formed part of the Westgate Medical Group, and has destroyed his plans for retirement.

47The further victim impact statements of Dr Sawe Zin, one of the directors of Sayers Medical Pty Ltd, Dr Ata Eqbal and Deen Shirzada all speak of the emotional and financial toll your offending has taken on their lives, with their dreams of a financially secure retirement crushed.

48As to your motivation for the offending, the defence submissions highlight the absence of any evidence that you were leading an extravagant lifestyle or had acquired substantial assets derived from the stolen funds. Indeed, the mix of money in the various accounts controlled by you makes it difficult to discern precisely how any of the misappropriated funds were expended. On that basis, your Counsel argued that the court could not be satisfied, to the requisite standard, that your offending was motivated by profit or greed, notwithstanding the amount stolen by you over the four- and half-year period.

49In response, the prosecution submissions highlighted the analysis undertaken by Mr Flynn of transfers exceeding 13 million from your various transaction accounts for the period 1 January 2015 to 30 June 2019, including significant transfers in respect of various properties (approximately $1.99m), $1.95m on purchases and expenses, and $1.48m on withdrawals for unidentified reasons.

50However, because these expenses were met from mixed funds held in your accounts, it is not possible to discern with any certainty what, if any, component of this expenditure comprised stolen monies.

51Despite this fact, it is clear that you stole an enormous amount of money over those four and a half years which, once transferred to accounts you controlled, was available to you to expend as if it were your own. That money is now lost, and the victims have no prospect of recovery, with the judgement debt likely to remain outstanding. Whilst I am unable to conclude how the money was expended, I am satisfied you engaged in this offending in order to have access to the monies you stole, for your personal use. You were well-renumerated in your business as your answers to police attest. Your offending was not caused by need.

52In the often-cited case of DPP v Bulfin[1], Charles JA made the following observations regarding the aggravating features commonly associated with 'white collar' dishonesty offending, irrespective of the motivation, stating:[2]

'The motivation to engage in conduct of the kind here under consideration may spring from many sources: a position of trust and the easy ability to abuse it; the enormous rewards that may be available; a position of high authority in some substantial enterprise and the offender's assumption that discovery or proof of wrongdoing can be avoided…

Whatever the motivation, offences of the kind here in question almost invariably involve a carefully 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) …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.'

[1]DPP v Bulfin (1998) 4 VR 114 (‘Bulfin’).

[2]Bulfin, at pages 131 & 132.

53Although these observations were made by the Court of Appeal 26 years ago, they remain relevant to this day, and are apposite in this case.

54You bear a high level of moral culpability for your offending, however this is also informed by your personal circumstances to which I now turn.

Personal circumstances

55I have drawn much of your personal circumstances from the psychological report of Mr Jeffrey Cummins dated 15 March 2024[3], relied upon at your plea hearing. Mr Cummins assessed you over a video link on 8 March 2024. You were subsequently re-assessed by Mr Cummins over a video link on 4 September 2024.

[3]Exhibit 1 – Psychological report of Mr Jeffrey Cummins dated 15 March 2024.

56Your early childhood and adolescence were extremely difficult, marked by significant trauma and hardship.

57You were born in Spain in March 1969, and are the only child of your biological parents. When you were four years old, your father passed away. You and your mother then relocated to live in Romania, where your biological mother remarried. However, she did not raise you in Romania. Between the age of six½  and eighteen, you were raised by another woman who was a mother figure to you. You told Mr Cummins you felt abandoned by your biological mother. You have two half-siblings, a half-sister  and a half-brother, both of whom live and work in Romania.

58When you were 16 years old, you told Mr Cummins you were abducted and raped by a group of males, resulting in pregnancy. Following DNA testing, the father was identified, and you were forced to marry him.  Your son, Stefan, was born as a result of this rape. He is now aged 37 and resides in Melbourne. You separated from your first husband after three years. You told Mr Cummins that he tried to kill you, forcing you to live elsewhere in Romania to avoid being located by him. Your son had no further contact with his father after this time.

59You completed secondary school in Romania and then attended an army university, following which you worked as a strategist in a bomb squad for four years. While working there, you met your second husband, to whom you have a daughter, who was born in 1999. Your second husband was ambushed and killed during fighting, during which you also sustained a leg injury, requiring a metal plate. Your daughter was only 18 months old at that time.

60Due to your injuries, you were unable to work, and returned to university to study economics in Romania. You subsequently began working as an accountant.

61You met your third husband, Ghita, in Romania in 2005. He had previously lived in Australia and, in 2007 you both immigrated to Melbourne to live, with you traveling under a spousal visa. You subsequently became an Australian citizen.

62Upon your arrival in Australia, you spent four months studying English before securing work as an accountant with a firm in South Yarra. You worked for this firm for three years, also becoming a registered tax auditor. You then established your own business, IQ Accountants, working as an accountant until late-2019.

63The woman who was a mother figure to you became ill around this time, and you returned to Romania to spend time with her. You were unable to leave Romania when borders closed due to the COVID-19 pandemic. While you were in Romania, your husband told you of the civil proceedings in the Supreme Court, which you state you were unable to defend. You also became aware that your assets had been frozen.

64Upon your return to Melbourne, you report that people 'began hassling' you about your work at the Westgate Medical Group and that, together with your husband, you decided to move to a country area to 'make a fresh start'. You obtained an accounting role in Ararat before you were arrested. You then moved to Kaniva, where your daughter also lives. Sadly, your husband passed away from colon cancer in July 2022.

65You subsequently obtained work as the manager of a local motel in Kaniva, working seven days a week, including on-call work, where you live on-site. You enjoy this role. You also engaged in other voluntary community work in the district. You no longer work as an accountant.

66In his psychological report, Mr Cummins states that arising from the various traumatic events in your life, notably the death of your father when you were four, your experience of rape and forced marriage, and the circumstances in which your second husband was killed, you learnt to become a 'survivor'. Whilst presenting as psychologically robust and resilient, Mr Cummins concludes you suffer from complex-Post Traumatic Stress Disorder arising from these traumatic events.

Matters in mitigation

67On your behalf, Mr Keks of Counsel provided detailed submissions regarding the matters that arise in mitigation of your sentence, which he expanded upon at the hearing of your plea.

Guilty Plea

68First and foremost, you pleaded guilty to the charges at a relatively early stage. Through your guilty plea, you have accepted responsibility for your offending and have facilitated the course of justice. As your Counsel pointed out, your preparedness to facilitate the course of justice is also reflected in your conduct in voluntarily returning to Australia at a time you could have realistically anticipated being charged with this offending.

69Although evidence was given at a contested committal, your guilty plea saved the court and the community the time and resources associated with a potentially lengthy and complex jury trial. There is significant utility in your plea, which you are entitled to have recognised in mitigation of your sentence.

70However, beyond the remorse inherent in your guilty plea, there is no other evidence of genuine remorse for your conduct, or an appreciation of the impact of your offending on the victims of your dishonesty. At your plea hearing, Mr Keks conceded he does not contend that you have demonstrated genuine remorse for your offending.

71

When you were assessed by Mr Cummins, you provided an explanation for your offending, stating that Dr Eqbal directed you to transfer the monies to your accounts, and did so in order to 'hide money from business partners'. You state that you were being threatened by Dr Eqbal and acted under duress. However, given Dr Eqbals' evidence in these proceedings, your counsel expressly disavowed any reliance upon the explanation you gave Mr Cummins in mitigation of your sentence. To be clear, I do not accept the justification you provided to

Mr Cummins for your offending.

Delay

72

The second matter relied upon in mitigation of sentence is the delay associated with these proceedings. I accept that after you became aware of the internal investigation being conducted by the medical practice in July 2019, you must have considered it likely the matter would be referred to police. Indeed, your offending was reported to police in October 2019, and you were arrested and charged on

26 April 2021, some 18 months after the police report. However, in some respects this delay was inevitable. As stated in Bulfin, investigations into white collar crimes are customarily complex and lengthy, as proved to be the case here.

73Once you were charged, the prosecution was yet to receive evidence from civilian witnesses in admissible form, having only obtained the affidavits filled in the Supreme Court proceedings, and the case was adjourned on numerous occasions in order to obtain those statements and the statements, including an addendum statement, from the forensic accountant. It was not until 3 May 2022, that the case against you was known; more than a year after being charged.

74Delay may be relevant to a sentence in two ways.

75First, there is the unfairness limb. It is now over three years since you were charged with this offending, and over five years since you first became aware of the internal investigation. In this case, I accept that these proceedings have been hanging over your head for a long period, uncertain as to the outcome, which is a form of punishment in itself.

76The second limb relates to whether, during the period of delay, an accused has made progress towards rehabilitation. There are two aspects to this limb: remorse and rehabilitation. As I have already concluded, while you have accepted responsibility for your offending through your guilty plea, you have not fully acknowledged the wrongfulness of your conduct or expressed genuine contrition for your offending.

77You have however, demonstrated progress towards your rehabilitation in other ways. First, you have not offended since 2019. Moreover, since being bailed, you have sought and obtained alternate employment, worked long hours as a hotel manager to support yourself, and made contributions to the community in Kaniva by other voluntary work. 

78A number of references provided on your behalf attest to your community work in Kaniva. A letter from Major Karen Armstrong, a Minister with the Salvation Army dated 26 August 2024, speaks of your assistance with clients who have just arrived in Kaniva requiring accommodation and other support. Helen Hobbs is the Secretary of the Kaniva and District Progress Association where you are Treasurer, and in her letter to the Court dated 22 February 2024, Ms Hobbs also recognises your work supporting women through community events. Your daughter states that you assist in the community in other ways; catering for club events, feeding the elderly, and driving people to medical appointments.

79I accept that since this offending, you have sought to re-establish yourself in the Kaniva community through your work and by your contribution to the local community.

Previous good character

80As stated, you have no prior criminal convictions and at the age of 55, are to receive the credit of a life without coming before the courts. You have not offended since your arrest.

Prospects of rehabilitation

81There are positive indications for your future. You have been on stringent conditions of bail since 27 April 2021, including a curfew, and have fully complied with all bail conditions. You retain the support of your children and friends in the Kaniva community. You have retained full-time employment as a manager of the motel in Kaniva, and as discussed, have made significant contributions to the local community. Since being in custody, you have taken the opportunity available to you to do a food handling and OHS course. You hope to work in custody to keep yourself busy.

82In a letter written by your half-sister, a judge in Romania, dated 15 March 2024, she reflects on your hardship growing up, and the attempts you made to return to Australia from Romania, to 'take responsibility for what [you] did in front of the court'. To be clear, there is no suggestion that you fled to Romania in September 2019 to avoid prosecution. To the contrary, I am satisfied that you left Australia to be with your family, due to illness, and returned voluntarily as soon as it was possible to do so.

83Other friends who have written references on your behalf speak of your contributions to the community in Kaniva, your generosity and care for other people. To those who have known you in Kaniva, you are an honest and trustworthy person. However, for those whose references indicate no knowledge of this offending, such observations are clearly at odds with your dishonest conduct while working for the Westgate Medical Group.

84Although my assessment of your future prospects must be qualified by your lack of contrition or insight into the impact of your offending, overall, I assess that you have reasonably good rehabilitation prospects into the future.

Burden of imprisonment

85Finally, I accept that, as a first-time offender, your experience of custody will be difficult for a number of different reasons.

86Firstly, you have several medical issues of concern. Following lap band surgery in 2011, you have suffered from reflux, for which you take medication. You have previously had treatment for diabetes and have had your gallbladder and appendix removed. You have been on medication for high blood pressure and cholesterol for many years. More recently, in August this year, you were diagnosed with severe obstructive sleep apnoea, requiring use of a CPAP machine.

87In an addendum report provided by Mr Cummins dated 10 September 2024, he states that you have elected to remain in your cell, isolated, since being remanded because you are uneasy about spending time with other prisoners. Mr Cummins reports that being alone in your cell, you have thought more about your past trauma, as your usual way of managing this has been to remain active.

88Secondly, Mr Cummins concludes that the symptoms associated with your complex-PTSD are likely to be 'readily triggered' in custody, although he considers this may be moderated if you are offered work opportunities. I accept that your experience of custody is likely to be more onerous than it is for a person without your complex-PTSD. Mr Cummins considers that your complex-PTSD requires treatment in the form of psychotherapy, however he states this form of treatment is not available in a prison setting.[4] Mr Cummins states he has reached this conclusion based on his familiarity working within prison settings in Victoria.

[4]Exhibit 5 – Addendum psychological report of Mr Jeffrey Cummins dated 10 September 2024.

89The prosecution disputes Mr Cummins' assertion regarding the unavailability of suitable treatment in custody, stating that psychological treatment can be made available to persons in custody.  However, the prosecution did not adduce any evidence in relation to the form of psychotherapy recommended by Mr Cummins for the treatment of complex PTSD. 

90I consider that Mr Cummins opinion regarding the impact of your complex-PTSD in custody enlivens limbs 5 and 6 of the principles enunciated in Verdins[5], and operate in further moderation of your sentence.

[5]R. v. Verdins (2007) 16 VR 269.

Continuing Criminal Enterprise Offending

91Part 2B of the Sentencing Act 1991 is entitled 'Continuing criminal enterprise offenders'. The Part 'applies to a court in sentencing a continuing criminal enterprise offender for a continuing criminal enterprise offence'.[6]

[6] s 6G Sentencing Act 1991.

92Part 2B applies in your case as your offending meets these definitions. It has the effect that the maximum penalty for Charges 1, 2, 3, 5 and 6 is doubled and becomes 20 years' imprisonment.

93As the amounts stolen by you in each of rolled-up Charges 1-3, 5 and 6 includes sums exceeding $50,000, each offence is a 'continuing criminal enterprise offence' ('CCE offence'). Because you have pleaded guilty to five such offences, you are to be sentenced, in relation to all five charges, as a 'continuing criminal enterprise offender'.[7] The maximum penalty for Charge 4 remains 10 years' imprisonment. Whilst the total amount stolen by you in respect of Charge 4 is significant, the individual amounts stolen did not include a sum exceeding $50,000.

[7] s 6H(1) Sentencing Act 1991.

The Queen v. Roussety [2008] VSCA 259.

94The purpose of Part 2B of the Act was explained by Vincent JA in R v Arundell:[8]

Parliament has, through the enactment of Part 2B, expressed an intention to deter those who demonstrate preparedness to engage in repeated predatory behaviour, affecting through the commission of offences of the kind presently under consideration, the economic welfare of individual victims and the general community.[9] 

[8] [2003] VSCA 69.

[9] Ibid at [22].

95The correct approach to the application of Part 2B by a sentencing judge was explained by Santamaria and Coghlan JJA in Shiel v R:[10]

In the exercise of his or her sentencing discretion in a case where one or more of the offences on an indictment are CCE offences, a sentencing judge must take into account the higher maximum penalty that is applicable to CCE offences. However, the fact that CCE offences attract a higher maximum penalty does not compel a sentencing judge to increase any individual sentence. Further, where an offence is a CCE offence, the individual sentence imposed for that offence should not be automatically increased by virtue of there being a greater maximum penalty for that offence. Where a sentencing judge increases an individual sentence imposed on a CCE offence, he or she must explain the basis for doing so.[11]

[10] [2017] VSCA 359.

[11] Ibid at [41].

96In accordance with these authorities, I have taken into account the increased maximum penalty that applies to all of your offences other than Charge 4.

Other sentencing considerations

97I turn now to other sentencing considerations.

98In cases of this kind, the sentencing principles of general deterrence, just punishment and denunciation are of particular significance. For others in positions of trust contemplating the risk of engaging in similarly deceptive conduct, the sentence I impose must operate as a strong deterrent.

99While deception offences vary widely in seriousness, offending that is committed in breach of trust, involving large amounts of money over an extended period of time will normally attract a significant sentence of imprisonment. However, the need to deter you specifically is lessened by my positive assessment of your future prospects. Community protection is also fostered by your rehabilitation, and I have had regard to this consideration in fixing an appropriate non-parole period.

100As to current sentencing practices, the prosecution referred me to a number of decisions of the Court of Appeal and to those of this Court. I have considered all the cases to which I was referred, and in particular the case of Kruger v The King.[12] In that case, the accused was the bookkeeper for a water filtration business. Over a period of close to seven years, she made a total of 349 unauthorised electronic transfers into her account or accounts under her control, stealing a total of over $3.78m from the company. In that case, as here, the offender had no prior convictions, had experienced childhood trauma and was otherwise of good character, and was found to have good rehabilitation prospects. The offending in that case occurred over a longer period but involved a lower quantum than in your case.

[12]Kruger v The King [2023] VSCA 149.

101In Kruger, the offender was sentenced to a total effective sentence of five years, four months' imprisonment with a non-parole period of four years. However, in that case, because none of the individual transactions exceeded $50,000, Part 2B of the Sentencing Act 1991, had no application. The appeal against sentence was dismissed in that case.

102As always, every case must turn on its own facts and circumstances.

103When sentencing for rolled-up charges, whilst one maximum penalty applies, I must have regard to the totality of your offending conduct comprising that charge, including the total number of dishonest transactions and total quantum referrable to that charge. However, in doing so, I have been conscious to ensure that the overall sentence I impose reflects the totality of your offending across all six charges, and no more.

104On your behalf, Mr Keks conceded that an immediate term of imprisonment with a non-parole period fixed was the only available sentence given the objective gravity of your offending, but submitted that the sentence should also reflect the weighty mitigating features that arise in your case.

105The sentence I impose must give appropriate recognition to the objective gravity of your offending. However, I accept that the various matters that arise in mitigation are to be given weight in the sentencing synthesis.

Sentence

106

Balancing the matters to which I have referred, whilst having regard to the maximum penalty for the offence of theft, including the maximum penalty of

20 years' imprisonment for the CCE offences, I sentence you as follows:

107On Charge 1 – theft from F& N Eqbal Pty Ltd, you are convicted and sentenced to three years, six months' imprisonment.

108On Charge 2 – theft from Feda Eqbal and Nabila Eqbal, you are convicted and sentenced to two years, six months' imprisonment.

109On Charge 3 – theft from Sayers Medical Pty Ltd, you are convicted and sentenced to four years' imprisonment. This is the base sentence.

110On Charge 4 – theft from Hoppers Super Clinic Pty Ltd, you are convicted and sentenced to two years, ten months' imprisonment.

111On Charge 5 – theft from Heaths Medical Pty Ltd, you are convicted and sentenced to three years, four months' imprisonment.

112On Charge 6 – theft from AFD Medical Pty Ltd, you are convicted and sentenced to two years, six months' imprisonment.

113It is appropriate that there be some cumulation of the sentences I have imposed in recognition of your offending against the separate corporate entitles. I make the following orders for cumulation:

(a)   8 months of the sentence imposed on Charge 1;

(b)   4 months of the sentence imposed on Charge 2;

(c)   2 months of the sentence imposed on Charge 4;

(d)   6 months of the sentence imposed on Charge 5; and

(e)   1 month of the sentence imposed on Charge 6; and

order that they be served cumulatively upon the sentence imposed on Charge 3 and upon one another.

114This gives a total effective sentence of five years, nine months' imprisonment.

115I fix a non-parole period of three years, six months. This is the period of imprisonment you must serve before being eligible for parole.

116I direct, pursuant to s18 of the Sentencing Act 1991, that pre-sentence detention of 16 days be reckoned as time served under the sentence I have imposed.

117Pursuant to s6J of the Sentencing Act 1991, I direct that the fact you have been sentenced for a continuing criminal enterprise offence in respect of Charges 1, 2, 3, 5 and 6 be entered into the record of the Court.

118Finally, pursuant to s6AAA of the Sentencing Act 1991, I indicate that had you not pleaded guilty to these offences, the sentence I would otherwise have imposed is a sentence of seven years, five months' imprisonment with a non-parole period of five years, five months.

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