Director of Public Prosecutions v Jackson
[2014] VCC 326
•28 February 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT GEELONG
CRIMINAL JURISDICTIONCR 12-02190
AP 12-2630
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEPHEN PAUL JACKSON |
---
| JUDGE: | HER HONOUR JUDGE MORRISH |
| WHERE HELD: | Geelong |
| DATE OF HEARING: | 29 November 2013, 3 and 4 December 2013 and 25 February 2014 |
| DATE OF SENTENCE: | 28 February 2014 |
| CASE MAY BE CITED AS: | DPP v Jackson |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 326 |
REASONS FOR SENTENCE
---Subject: Criminal Law – Plea – Sentence
Catchwords: Obtain property by deception – Drive while licence suspended
Legislation Cited: Crimes Act 1958; Crimes Act 1914; Criminal Procedure Act 2009; Road Safety Act 1986; Sentencing Act 1991
Cases Cited: DPP v Josefski (2005)13 VR 85
Sentence: CR-12-02190 – Charge 1: 2 years imprisonment with a minimum non-parole period of 18 months (applicable to both CR-12-02190 and AP-12-2630). AP-12-2630 – Charge 1: 6 months imprisonment; Charge 2: convicted and fined $750; Charge 3: convicted and fined $750, disqualified from driving for 6 months.---
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms S. Flynn | Ms B. Paridaen |
| For the Accused | Mr D. Holding |
HER HONOUR:
1 STEPHEN PAUL JACKSON, you are to be sentenced in respect of one charge of obtain property by deception on indictment contrary to section 81(1) of the Crimes Act 1958. The maximum applicable penalty is 10 years’ imprisonment.
2 Following preliminary applications, a jury of 12 was empanelled on 3 December, 2013 and when you were arraigned, you pleaded not guilty to the charge. The next day, through your counsel, Mr Holding, you sought leave to amend your plea to guilty. I granted such leave, after satisfying myself that your changed plea was voluntary, that is to say, made without threats, promises or inducements, and made in recognition of your guilt. You were then re-arraigned in the presence of the jury and you pleaded guilty to the charge. Pursuant to section 241(1) of the Criminal Procedure Act 2009, I directed that the jury be discharged from delivering a verdict and instead directed that an entry of guilty be made on the record in respect of that charge. Under sub-section (3), that entry has the same effect as if it were the verdict of a jury on your trial on that charge.
3 Your counsel asked that the plea hearing be adjourned to enable expert reports to be obtained concerning your mental or psychological background and status. I note that your counsel, Mr Holding, also requested that your pending appeal from a Magistrates’ Court sentence imposed on 13 November 2012, be determined at the same time as the plea hearing.
4 Mr Doyle, who then appeared on behalf of the prosecution consented to that course.
5 Mr Holding also made a bail application on your behalf, and on specific instructions, Mr Doyle consented to an order granting you bail pending the plea hearing. I granted bail on the strict conditions suggested by the informant to which you agreed.
6 The plea hearing and appeal were heard at the same time on 25 February 2014. Ms Flynn appeared for the prosecution. Mr Holding appeared on your behalf. Today Ms Whitford appears on your behalf.
Circumstances of offending
Charge on Indictment No: C1204176
7 The circumstances of offending are well set out in the summary of prosecution opening which Ms Flynn read to the Court. A copy of it was tendered as exhibit A, and is attached to these reasons for sentence as Annexure A. You admit most of the facts asserted in the opening, and you are to be sentenced on those agreed facts. Your counsel did not require any witness to attend for cross-examination on any disputed fact. I will not repeat all of the facts now, rather, I will further summarise:
8 You and the complainant, Mrs Marilyn King, and her late husband Phillip King had a long-standing friendship. There were some financial dealings between you and Mr King over the course of that relationship.
9 After Phillip King died in January 2008, his widow, the complainant, received a payout of her husband’s life insurance policy. She invested $195,000.00 in a bank term deposit. You discussed this investment with Mrs King and, as the global financial crisis was descending, you suggested to her that when the term matured, she should invest the money with you. You promised her a safe investment with a favourable interest rate.
10 When the term deposit matured, acting in reliance on your false promises, Mrs King paid $190,000.00 into an account nominated by you, in the belief that the money was to be invested on her behalf. Effectively, you represented yourself as a trustee for that investment.
11 The account into which you directed Mrs King to deposit the money was in the name of a corporation “TANROCK Consultants Pty Ltd”, also known as “Tanrock Pty Ltd” which I will call "Tanrock". The records show that you were not an officer of Tanrock. Nor did you have any official position or role in Tanrock. Your wife, Sagal, was an office bearer of the corporation, but you were also a signatory to the Tanrock bank account. You later told police that this was your company (Record of Interview question and answer 38, Depositions page 266).
12 What you never disclosed to Mrs King was the truth. At the time you persuaded Mrs King to “invest” her money with you, you were a bankrupt, you had no real assets, no income to speak of and you had a nominal amount in a bank account. More significantly, you never disclosed to Mrs King that you intended to use her money for your own benefit, rather than for hers.
13 Very soon after receiving Mrs King’s money, you commenced transferring it from the Tanrock account. You drew it down and spent it, treating it as your personal slush fund.
14 Before Mrs King made the deposit, the amount standing in credit in the Tanrock account was $51.05. With the deposit, the balance increased to $190,051.05. Within three months, you had spent the lot. By 16 January 2009, the balance in the Tanrock account was a paltry $4.93.
15 Mrs King became worried about her investment, and from time to time she asked you about her money. Despite having converted all of her money to your personal use, you assured Mrs King that her investment was doing well and was now worth well in excess of the original amount. At the time you assured her it was worth “about $220,000.00”, not one penny of it was left. You promised to pay $235,000.00 into her account, but you never did. There was no $235,000.00.
16 Without access to her money, Mrs King was in a parlous financial circumstance, and at times she virtually begged you for her money. You paid her small amounts from time to time. You even assisted her to fill out forms so that she could obtain a Centrelink pension. You falsely inserted in that form that the money Mrs King gave you to invest on her behalf was a loan to you.
17 You made some payments to Mrs King, asserting that they were interest payments. Apart from these payments, the capital obtained and the majority of the income that was meant to be derived from the investment has been lost.
Arrest and Interview
18 When interviewed by police on 27 July 2013, you denied any wrongdoing (Q and A 419), asserting that you used the money (Q and A 235) “to pay bills or whatever needed to be done” (Q and A 280). You asserted that Mrs King had lent you the money (Q and A 426), and that there was money available to pay her back (Q and A 73 and 74). You said that Mrs King “invested it [the money] in me” (Q and A 244). You did not explain how you would be legally entitled to control the preferential repayment of what, according to your version, was an unsecured loan, while your financial affairs were subject to the control of the trustee in bankruptcy.
Charges on appeal AP12-2630
19 The first charge the subject of appeal is obtaining property by deception. The facts emerged in the preliminary application at trial, when the prosecution was attempting to adduce evidence of this offence as “tendency” evidence. On this occasion, in May 2011, you obtained $20,000.00 from a barrister, who was a friend, on the false representation that you were buying a block of units on the Geelong foreshore, and needed to pay a nominal deposit of $20,000.00 as a sign of good faith. In return, you falsely promised the barrister that he could have his choice of apartments in the block, at 60 per cent of its true value. The barrister advanced you the money paid directly into a bank account nominated by you, but only on condition that you would hold it, effectively on trust, until his wife consented to the transaction. The next day, the barrister told you that his wife did not agree to the transaction, and he asked you to return his money. You agreed to refund his money, however, you never did. On numerous occasions he urged you to return his money, and you promised to do so, offering various false explanations for the delay. You never returned his money. In truth, there was no property deal, and very soon after receiving the money you spent it as if it were your own, supporting a lifestyle well beyond your means. You had been bankrupted several times before and were again declared bankrupt approximately one month after receiving the barrister’s money.
20 When interviewed by police about this matter on 11 June 2012, you demonstrated no remorse. The informant considered that you acted as though you had done nothing wrong.
21 There are also two charges of drive whilst licence suspended. The first of those was committed on 11 June 2012, the day that police interviewed you about the deception charge committed against the barrister. After the police interviewed you, you were intercepted for driving while your licence was suspended. You admitted the allegations, explaining you needed to drive to the interview. You demonstrated little regard for the law, placing your personal convenience above your duty to respect the period of suspension. It was an audacious act to drive to and from the police station while your licence was suspended and when you must have realised that police might observe you arrive at or leave the station.
22 Undeterred, you drove again. The second drive whilst suspended occurred not even a month later, on 9 July 2012. There was no emergency or legitimate reason to drive. You told police that you drove “to get bread and milk for my boys.” Remarkably, not only did you tell police on that occasion that you knew your licence had been suspended, but you also volunteered that you had driven on at least six separate occasions in the period 11 June and 9 July 2012. You are to be sentenced only in respect of the charges before me today, and there are no charges for these other 6 occasions of driving whilst your licence was suspended. The point is that the charges were not isolated acts and they evince your disregard for the law.
23 I note that none of the charges which are the subject of the appeal constitute prior convictions on the charge on indictment. The charges arose almost three years after the charge on indictment. The facts upon which the subsequent charges are based are relevant because your counsel urges me to take account of the totality of your offending when sentencing you today in respect of all charges, including those on appeal.
24 Your counsel agrees that your subsequent offending is relevant to the question of whether the offending the subject of the charge on indictment was an isolated act, and it has a bearing on your prospects for rehabilitation, the likelihood of your re-offending and the role of specific deterrence in your sentence.
25 You pleaded guilty in the Magistrates' Court on the day that the case was to proceed as a contested matter. The complainant on Charge 1 attended court to give his evidence, but was spared from having to do so as a consequence of your very late plea.
26 The maximum applicable penalty for driving whilst licence suspended is 30 penalty units or 4 months imprisonment. You have no prior convictions for driving whilst licence suspended.
Effect of your offending on Mrs King
27 Two Victim Impact Statements were tendered and read to the Court. Exhibit C, Victim Impact Statement of Mrs King, 9 January, 2014 and Exhibit D, Victim Impact Statement of her daughter, Belinda Urbanski, 4 February 2014. It is clear that your offending has had profound consequences for Mrs King and her family. Not only did Mrs King lose her largest asset, thus becoming financially impoverished, but she also suffered emotionally. Not only did she have the stress of financial problems and the burden of the betrayal of trust, but immense strain was placed on her relationship with her daughter.
Effect of your offending on the barrister
28 Victim Impact Statement of the barrister dated 7 January 2014 was tendered as Exhibit E. Your offending on the barrister also had consequences. He felt betrayed by a person he considered to be a loyal friend. He suffered significant financial loss. Fortunately he was not financially crippled by your offending, as was Mrs King.
Gravity of offending
29 The crime of obtaining property by deception encompasses a wide variety of conduct, from passing small amount valueless cheques, to large scale fraud on financial institutions. The amount you obtained falls in the mid-range. But your reason for offending together with your moral culpability also have a bearing on the objective gravity of the crime. Your moral culpability is high: You defrauded a recently bereaved widow, a friend who trusted you. What was to be her nest egg has been lost. You were a bankrupt yet took this money pretending it would be held on trust to use as an investment on Mrs King’s behalf. Instead, you converted it to your own use, and having had it deposited it into an account beyond the reach of the trustee in bankruptcy, you spent Mrs King’s money on a lifestyle well beyond your means and status as an undischarged bankrupt. Mrs King will never make a financial recovery. She is reduced to living on a pension and working as a cleaner to try and make ends meet. While she was begging you to return her money, you were living “high on the hog”, even trying to purchase a multimillion dollar property in Toorak. Yours was a crime of greed and not need.
30 In circumstances such as these, principles of general deterrence, denunciation and condemnation, and protection of the community are dominant sentencing factors. Accordingly, a term of imprisonment is often the only appropriate response in cases such as these.
Plea in mitigation
31 Mr Holding made a plea in mitigation on your behalf. Ms Whitford made further submissions this morning. Mr Holding conceded the gravity of your offending and he conceded that a term of imprisonment must be imposed.. However, he identified a number of factors, which he submitted, combine to compel a more lenient sentence than might otherwise be expected.
Pleaded guilty
32 You have maintained your innocence until a jury trial was commenced. As I understand it, at committal the case proceeded by way of hand-up brief.
33 The fact is, however that you have now pleaded guilty and, as a matter of law, this must be counted in your favour. Although your plea was very late, it was nevertheless entered before Mrs King was required to give evidence at your trial. I imagine it would have been a very stressful experience for her. In any event, a guilty plea, no matter why or when it is entered, must almost always attract a sentencing discount.
34 In addition, I consider that the weight to be given to your plea must take account of the timing of your plea. You have avoided the cost of a trial. There is true value in the plea. Although there is some documentation, essentially, the success of the prosecution would have largely depended on Mrs King's evidence. That is not to suggest that she would not have made a credible and reliable witness. The outcome of any jury trial can never be assumed and there is social utility involved in your plea.
Remorse
35 Although your counsel submits that you are ashamed and sorry I am not satisfied that there is any evidence of remorse.
Factors personal to you
36 You were born on 2 June 1955. I was told that you were in your fifties before being charged with any significant crime. You obtained an Arts Degree at La Trobe University majoring in maths, as I understand it. You then worked in the building industry. You were a successful sportsman. In 1978 at age 23 you married. There are three children from that union. As I understand it, they are adult and all have become productive members of the community.
37 In the mid 1990s you separated from your wife. You then worked overseas as an executive manager in your father's family business. You worked in Hong Kong and you married there. You have a child from that relationship. The family business, which I have called "Sands" for the sake of brevity struck financial problems in about 2008 and went into receivership. As I understand it had debts of around ten million dollars, largely constituted by tax liabilities. The company also had family trusts associated with it and various family members lost their houses.
38 You separated from your Hong Kong wife and returned to Australia. In 2003 you travelled to Brisbane where you met your current partner, Sagal. You have two children from that union. They are aged eight and nine. Your wife, Sagal, was not present in court on the day of the plea hearing. She worked as a bookkeeper. In 2006 your father was diagnosed with cancer and you returned to Victoria to help with your father's care. As I understand it your partner, Sagal's father, helped with the purchase of a property in which both you and Sagal could live. I am told that there were restrictions on your ability to travel by reason of your bankruptcy.
39 Turning to your explanation for offending. Your counsel submitted that at the time you took this money from Mrs King you had reached a desperate situation. You persuaded Mrs King to part with her money and you acknowledged it was unconscionable to do so. Your counsel said you believed that you would be able to pay it back and this was a position that you maintained even to the day of plea hearing. Your counsel admitted that you knew Mrs King for many years and because of that relationship you were able to convince her to sign papers. A month after receiving Mrs King's money you signed a 1.5 million dollar cheque for a deposit on a 15 million dollar home in Toorak. That cheque bounced and contributed to further bankruptcy. You say you are liable to pay 1.5 million dollars and you received nothing for it.
40 Your counsel said that, contrary to suggestions that you had never worked a day in your life, in fact you had a good working history working in your father's business for some 20 years. When you signed the cheque for 1.5 million dollars you expected the funds would arrive to make good on it and you said that you were expecting money from Sagal's father who is a man of considerable wealth in Mogadishu. There was actually no independent evidence of this, I might say.
Prior character
41 You have a prior conviction for refusing or failing to produce a document. I was given no information by your counsel, Mr Holding, as to the circumstances of your offending on that occasion and today I raised the matter before sentencing you. Your counsel, Ms Whitford, took instructions from you but you claim to have no recollection of the circumstances of offending other than to say it must have been a regulatory matter and you consider the penalty to be minor. Ms Flynn had no further information regarding the circumstance of the prior conviction. I can only deduce that it was a Federal Charge because on 26 June 2008 in the Ringwood Magistrates Court you were convicted and released on a good behaviour bond under section 20(1)(a) of the Crimes Act 1914.
42 You committed the offence against Mrs King four months later, whilst bound by the terms of your good behaviour bond.
Verdins factors
43 There is no evidence of any mental or behavioural disturbance that you suffer that might either explain your conduct or reduce your moral culpability.
No evidence called or tendered on your behalf
44 The matter was adjourned to enable you to gather evidence for your plea hearing, however, when the matter resumed, no documents were tendered and no witnesses were called. No further adjournments were sought. Your wife did not attend the plea hearing as I have said.
Delay
45 Understandably, this matter was not raised by your counsel. Although Mrs King did not make timely complaint to police, the reason for delay was your re-assurances that all was in order and that there was no cause for concern. Also in the period of delay you committed another fraud which was the subject of appeal, AP12-2630.
Family hardship
46 It was not asserted that any exceptional circumstances arise by reason of hardship that any term of imprisonment may pose to any member of your family.
Prospects for rehabilitation
47 There is no evidence concerning your prospects for rehabilitation. On the other hand, the available evidence shows you committed this offence only four months into a one year good behaviour bond. Your conduct was motivated by greed. You instructed your counsel that you still have the resources to repay Mrs King but you have still not done so. This was not an isolated act. You are remorseless. No witness can speak of whether you have learnt from this experience, whether you are sorry for what you have done and whether you are sorry for the misery that you caused. Nor has any evidence been produced to say that you are unlikely to re-offend.
48 You do not seem to respect authority. Driving whilst suspended is a very good example. Your drove to the record of interview, the subject of the appeal, and then away. You were apprehended for that, yet on your own admission, you drove on several occasions later one of which is the subject of appeal and you offended whilst a bankrupt.
Sentencing submissions
Prosecution submissions
49 Ms Flynn submitted that your offending represents a serious example of a gross breach of trust. You exploited a long-standing friendship and represented yourself as a financial adviser. Ms Flynn places the offending on the Indictable matter in the mid-range for cases of this type. She submits that your culpability is high and that there is little in the way of mitigation.
50 In the circumstances she submits that both general and personal deterrence are dominant sentencing factors, along with principles of denunciation, just punishment and protection of the community.
Your counsel’s submissions
51 Mr Holding conceded that he was unable to support any of his submissions with evidence. He pointed out the difficulties that he was having taking instructions from you about some matters.
52 He relied on your guilty plea and he urged me to find that your plea evidences your remorse. However, you were still maintaining to the last minute that Mrs King simply lent you the money and that you had a viable defence. He also submitted that I should accept that you have good prospects for rehabilitation because of prior relative good character, your age and the salutary lesson you will learn by being imprisoned.
53 Mr Holding agreed that your offending represented a gross breach of trust on a vulnerable victim. He quite properly conceded that the only appropriate response is the imposition of a term of imprisonment to be served immediately. Finally, he called in aid principles of mercy, but did not further elaborate.
54 I agree with Ms Flynn your moral culpability is high and there is little by way of mitigation.
Sentences to be Imposed
Charge on Indictment
55 I turn to the sentence to be imposed on the charge on indictment.
56 I take into account all of the matters personal to you to which I have referred including your prospects for rehabilitation. Given the state of the evidence I am unable to make a finding in your favour about your prospects for rehabilitation. I must also take into account such matters as deterrence, especially general deterrence, which is of importance in a case such as this.
57 I am required to take into account the question of the protection of members of the community from you and bear in mind the likelihood of your re-offending. I am called upon by the Sentencing Act to manifest the community's denunciation of your conduct and generally to impose just punishment. In all the circumstances there is no alternative to the imposition of a term of imprisonment.
58 On Charge 1, obtain property by deception you are convicted and sentenced to two years' imprisonment.
59 The total effective sentence on indictment is 2 years. This will be the base sentence for all matters in respect of which you are to be sentenced today.
60 Before turning to the minimum non-parole period, I propose to sentence you in respect of the charges the subject of Appeal.
On the summary charges, the subject of the appeal AP12-2630
61 I set aside the sentences imposed and the orders made in the court below. I have taken into account all relevant factors in sentencing you that I mentioned earlier. In the stead of the sentences and orders made in the court below I impose the following sentences:
62 On charge one, obtain property by deception, that is to say the $20,000.00 from the barrister, you are convicted and sentenced to 6 months imprisonment.
63 The total effective sentence on Appeal AP12-2630 is six months imprisonment.
Accumulation
64 I turn to the question of cumulation. In determining whether to order any period of cumulation, and if so, how much, I must take into account that the two fraud charges are discrete and were committed in differing circumstances and involved offending of such gravity that total concurrency would fail to do justice.
65 I must pay regard to principles of totality and proportionality and I must avoid imposing a crushing sentence.
66 Taking into account all relevant factors I consider that it is appropriate to order some period of cumulation between the charge on indictment and Charge 1, the subject of appeal.
67 I therefore direct that three months of the sentence imposed on Charge 1, the subject of Appeal AP12-2630 be served cumulatively upon Charge 1 on the indictment.
68 This makes an overall total effective sentence of 2 years and 3 months' imprisonment in respect of all offences for which you are presently before the court. That is to say, in relation to both the charge on indictment and charge the subject of Appeal AP12-2630.
69 I will fix a single non-parole period applicable to both the charge on indictment and charge the subject of Appeal AP12-2630.
70 Among the matters to be taken into account are:
a) That a non-parole period has a punitive element;
b) That where either general or specific deterrence is important, that objective should not be undermined by an unduly short non-parole period; and
c) An offender’s prospects for rehabilitation are almost always a significant consideration (see DPP V Josefski (2005) 13 VR 85 at paragraph 43): I have already stated that there is no evidence to assist me to come to a finding in your favour on this question.
71 Balancing all relevant matters, I direct that you serve a minimum of 18 months’ imprisonment before becoming eligible for parole.
72 I now impose the sentences on the driving charges.
73 On Charge 2, drive whilst authorisation suspended you are convicted and fined $750.
74 On Charge 3, drive whilst authorisation suspended, you are convicted and fined $750.
75 Under s.28 of the Road Safety Act I cancel all licences and you are disqualified from driving for six months such period is to commence on 28 July 2015.
Statement under s6AAA Sentencing Act
76 By virtue of the provisions s.6AAA of the Sentencing Act, I am required to state the sentence and non-parole period, if any, that would have been imposed in respect of the offence but for the plea of guilty. Therefore, pursuant to s.6AAA, and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the sentences I would have imposed are follows:
Charge on Indictment No: C1204176
77 You would have been convicted and sentenced to 30 months’ imprisonment. On appeal AP12-2630 charge 1, you would have been convicted and sentenced to 8 months’ imprisonment.
78 I would have directed that 4 months of the sentence imposed on appeal AP12-2630 be served cumulatively upon the sentence imposed on Charge 1 on Indictment No: C1204176 resulting in an overall total effective sentence of 34 months in respect of all sentences imposed this day.
79 I would have directed that you serve a minimum single non-parole period of 22 months.
80 I direct pursuant to s.6AAA(4) that the sentences that would have been imposed but for the plea of guilty be noted in the Court’s records.
Pre-Sentence Detention Declaration
81 Under sec 18(4) Sentencing Act 1991, I declare that the period of 27 days is to be reckoned as a period of imprisonment already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
Ancilliary orders
82 The prosecution has made application for an order under s.85B of the Sentencing Act that you pay Marilyn King compensation in the sum of $175,000. Your counsel consented to the making of the order or did not oppose the making of such an order and I propose to make the order in the form submitted for my signature.
83 In the matter, the subject of appeal, application was also made for a compensation order in favour of the barrister. You did not oppose the making of such an order and I propose to make it. You are ordered to pay compensation to the barrister in the sum of $20,000.
84 (Orders signed)
85 I have now signed the compensation orders.
86 Application was also made for forfeiture but it was abandoned. Are there any other orders or matters that need to be dealt with?
87 MS FLYNN: No, thank you, Your Honour.
88 MS WHITFORD: No, Your Honour.
89 HER HONOUR: Thank you, you can remove the prisoner.
90 (Prisoner Removed.)
- - -
ANNEXURE ‘A’
Indictment no. C12134369
IN THE COUNTY COURT OF VICTORIA
AT GEELONG
CRIMINAL JURISDICTION
THE DIRECTOR OF PUBLIC PROSECUTIONS
-v-
STEPHEN PAUL JACKSON
SUMMARY OF PROSECUTION OPENING
Date of document: | 24 February 2013 |
Filed on behalf of: | The Director of Public Prosecutions |
| Prepared by: CRAIG HYLAND Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | Solicitor’s code: 7539 Telephone : (03) 5215 6700 Direct: (03) 5215 6710 Reference: J. Weigl |
Background
1. In 1979, the complainant, Marilyn KING (58 years of age) and her husband Phillip KING became known to the accused and his family through their printing business - Peter Jackson's Graphics. Peter JACKSON is the accused's father.
2. Phillip KING formed a close friendship with the accused whilst also doing printing jobs for Peter Jackson's Graphics. He had several business interests with the accused.
3. The KINGS moved to the Gold Coast in Queensland in February 2006.
4. In May 2007, the accused was declared bankrupt by the Federal Magistrates' Court. The period of bankruptcy was to run for 3 years.
5. In late November 2006, Phillip KING was diagnosed with oesophageal cancer. On the 7th January 2008, he passed away.
6. After finalising her and her late husband's affairs on the Gold Coast, the complainant relocated back to Geelong with her daughter Belinda KING. She then made arrangements with AMP to collect her late husband's life insurance payout.
7. On the 4th of April 2008, the complainant received a lump sum payment in the amount of $224,702 from AMP. After she spent some of the funds to pay several bills, purchase a car, furniture and payoff her late husband's visa card, she was left with $195,000. This money was to be her nest egg.
Circumstances of Alleged Offending
Charge 1 - Obtaining property by deception
8. On the 9th of April 2008, the complainant opened a term deposit account with an interest rate of 8.25% p.a .. She deposited $190,000 for six months maturing on the 9th of October 2008.
9. Whilst the complainant's money was in the term deposit, the accused approached her and said he could provide a better interest rate and a more productive investment.
10. The complainant thought about what the accused had said to her over the following few weeks. At that time, due to the Global Financial Crisis that began in September of 2008, banks were dropping their interest rates and superannuation accounts were being affected. There was also talk of banks only guaranteeing specific amounts.
11. Just prior to the term deposit maturing in early October 2008, the accused contacted the complainant. He once again offered her a better interest rate than the banks. He told her he would make sure the money was" ... tucked away safely and you'll have a better nest egg in a few years ...” (p.24) She then asked him if she gave him her money to invest if he would provide her with Official documents and paperwork. He assured that that he would provide these.
12. On the 5th of October 2008, the accused and the complainant met at The Barking Dog restaurant in Geelong West, as a result of him telephoning her. He explained that he would invest her money and asked her to draw up a cheque once the term deposit matured. He told her that would provide her with the account details that the cheque was to be made out to.
13. On the 12th of October 2008, the accused telephoned the complainant and instructed her to write a cheque for $190,000 payable to Tanrock Consulting Pty Ltd. He then told her to deposit the cheque into the Tanrock bank account, providing her with the account number and BSB.
14. On the 15th of October 2008, the complainant went into her Commonwealth Bank branch in Geelong West. She obtained a bank cheque for $190,000 payable to Tanrock Consulting Pty Ltd and deposited the cheque into the accused's National Australia Bank account.
15. On the 16th of October 2008, the accused telephoned the complainant and told her that he had received the money and " ... everything is all good to go."(p.25) He told her further that they could meet in a day or so and he would give her the paperwork.
16. On the 17th of October 2008, the complainant met with the accused at The Barking Dog. She was of the belief that he would be providing official paperwork for her to sign in relation to the investment. All the accused provided was a one page hand written note with his signature on it. (Exhibit 2, p.49)
17. The 14% interest promised was made up of 7% declared officially as $6650 for a period of 6 months, and a top up of $1110 cash per month to equal 14% for the 6 months. There was no actual time frame about how long the investment would remain with the accused, he simply put 6 months on the paperwork without consulting the complainant.
18. Over the next 4 to 6 months, the accused provided some of the interest payments, however the amounts would vary. On each occasion when the complainant made enquiries with the accused about her investment, he would say “… everything was on track, and all was above board." and " ... your investment is doing very well." (p.26)
19. In around March 2009, the accused and his wife Sagel MacLENNAN attended the complainant's house. He said words to the effect of "Your investment is doing really well, and I'm really pleased, and it's around 210,000." (p.26)
20. During the following months, the accused continued to take the complainant's telephone calls and respond to her text messages. They would meet on regular occasions for catch-ups, dinners, when the complainant babysat his children and to attend family functions as they had always done.
21. By mid 2009, the accused was not forthcoming with the monthly payments. The complainant had to ask him for money to pay her rent and bills as she was also supporting her daughter Belinda financially.
22. After a further 6 months, the complainant and Belinda looked at properties to purchase. They were doing so on the basis that the accused had told them "Your investment has done well so far and you have accrued around $220,000. (p.27)
23. The complainant had a number of conversations with the accused in relation to purchasing a unit. She was particularly interested in purchasing a unit in Herne Hill, which had a purchase price of $185,000. She asked the accused for a deposit of $500 for the property. She told him she was keen to purchase and that she would need a 10% deposit and the rest within 30 days. The accused would not give her a straight answer about giving her the money or on how quickly the funds would be available for her to make the purchase.
24. The accused then suggested to the complainant that she push the settlement terms on the property to 90 days and did "due diligence" on the property. He told her that if she still wanted to go ahead with the purchase, he would give her the money.
25. The accused provided the complainant with the $500 deposit and she gave it to the vendor's real estate agents. He then talked her out of the property deal and said it was the wrong time to buy. He told her she could do better by waiting a bit longer and that she might be better to find a two bedroom unit.
26. The complainant was very disappointed that she had not been given a formal date by the accused as to when she would receive her money back. She was assured by him that the longer she left her money with him, the bigger amount of money she would have. He told her words to the effect of "The longer your money stays invested with me bigger the amount of money you will have to play with." (p.28)
27. Over the 2009 and 2010 period, the complainant met with the accused on various occasions and each time he told her the money had been invested with a company located in the suburb of Broadmeadows in Melbourne. He told her that the company manufactured safes for large companies and that it was doing very well and had made a good return. He provided her with no details, address or information about this business but reassured her that the investment was doing well and was now above $220,000.
28. In late 2009, Belinda KING raised concerns with the complainant about the accused and that she did not think the accused was looking after the complainant's best interests. Nevertheless, the complainant still trusted the accused believed that what he was telling her was the truth. He would say to her on some occasions, words to the effect of "Beware, it's best not to discuss what we talk about because your family would hope maybe to get some of the money and you don't want to lose out, and you don't want that to happen." (p.28)
29. Later during this period, the complainant again asked for her money back. The accused told her that he would have to travel to Europe to get the money as it was now offshore. He continued to make excuses as to why he could not return her money to her. She was struggling financially and had to plead with him to at least give her some of the money, however he failed to do so.
30. In January 2011, the accused told the complainant that he would be transferring $235,000 into her bank account and would send her a text message when this was done.
31. The accused later advised the complainant that he would be travelling overseas to obtain her funds and he would transfer $235,000 into her account by the end of the month.
32. After January, the accused informed the complainant that things had not gone to plan and he would need to travel overseas to find another avenue to obtain the funds. He asked if she could wait until the end of the 2011 financial year then her investment would be around $260,000.
33. In June 2011, the accused was again declared bankrupt.
34. During this time, the complainant attended the accused's daughter in law's birthday party. Whilst at the party, the accused told the complainant that he would be going offshore. She told him that her application for the widow's allowance had been approved. They had had discussions previously about the allowance as she needed him to fill out some details on the application about her investment. When she had met with him previously to complete the paperwork, he was hesitant about answering some of the questions in the application.
35. The accused advised the complainant that he would probably leave to go overseas on the 23rd of June 2011 for about 2 weeks.
36. In the following weeks when the accused was meant to be overseas, the complainant bumped into him at the Corio Village Shopping Centre. She said to him "I thought you were offshore." The accused appeared flustered and said "Oh Saga I and I needed a break away for a week by ourselves, we haven't told anyone, but I will still be going." (p.30)
37. Immigration records show that he never travelled overseas at this time.
38. During this time, the accused told the complainant that her money was now with his money and that he had put it in a trust fund. He continued to reassure her that all was well and her money would be forthcoming.
39. In August 2011, the complainant tried to contact the accused to discuss how things were going and to let her know that she had been quite unwell. On the 20th of August 2011, she received a text message from the accused stating "Sagal not well either - must be a bug going around in Geelong. Looking forward to finalise all upon return. Please look after yourself. Steve J." (p.30)
40. By October 2011, the accused continued making excuses to the complainant about her investment. She was very frustrated and told him via telephone that she needed everything to be finalised and that she would get someone else to step in and handle the matter for her and she wanted her money back. She also told him that she wanted the money settled by the 10th of October 2011 as it was now coming up to three years that he had had her money and she did not want it to drag on for another year.
41. By December 2011 , the accused told the complainant that he would be travelling overseas to New Zealand. He also said that he was delaying his trip because his father was ill. He said words to the effect of "you can understand because you have been through it with Phillip."(p.31) She decided not to discuss the return of her money with the accused for a few weeks as she felt a great deal of respect towards his father.
42. On the 3rd of December 2011, the complainant made contact with the accused as she had no income and wanted to know about when he would be returning her money. Christmas was approaching and she was getting behind in her rent payments.
43. On the 7th of January 2012, the complainant arranged to meet with the accused at The Edge restaurant in Geelong. She told him that she needed money to pay her rent. He gave her $150 in cash and told her he would be away on the 23rd of January for 8 days. He said words to the effect of "I have to go across the ditch to access the funds and to settle, really sorry about all this but we've got dad more or less organised now, and I haven't wanted to be away whilst he was having treatment." (p.32)
44. The complainant waited until the start of February 2012 and had not heard from the accused. She sent a text message to MacLENNAN and did not receive a reply.
45. In mid February 2012, the accused's sister died. The complainant attended the funeral and did not think it was the time or place to discuss financial matters.
46. The complainant waited for about two or three weeks and in early March 2012 contacted the accused to arrange a meeting for the return of her money. The unit she was renting was up for sale and she had been approached about putting in an offer to purchase. The meeting never eventuated because over the following days, being the 3rd and 4th of March, she discovered that the accused and MacLENNAN were declared bankrupts.
47. On the 4th of March 2012, the complainant discussed the accused with Belinda KING. The complainant then realised that she had been deceived by him and reported the matter to police.
48. The accused's NAB banking records show that the complainant's $190,000 was deposited into his account on the 15th of October 2008.
49. By the 15th of January, 2009, the accused had withdrawn the entire amount as follows:
(a)$30,700 cash by way of ATM withdrawals on 43 occasions in amounts ranging from $100 to $1000.
(b)$84,500 cash by of way attendance at NAB branches on 24 occasions in amounts ranging from $700 to $13,000.
(c)On the 24th of October 2008, MacLENNAN, who was a signatory to the account, withdrew $9468.35 in the form of a bank cheque made payable to herself and deposited it into her ANZ Visa debit card account. She then used these funds to purchase jewellery, a scarf, a digital watch and men's pyjamas. Police recovered a pearl bracelet (Exhibit 34), Louis Vuitton scarf (Exhibit 36) and pearl earrings (Exhibit 65) totalling $2175 in value after executing a search warrant on her address in Melbourne on the 17th of October 2012.
(d)In October 2008, he gave his ex-wife, Wendy JACKSON, a $5000 bank cheque to assist with their daughter's education fees and other expenses.
(e)He made the following payments in relation to a knee replacement he underwent at the Geelong Hospital on the 31st of October 2008 - $2278 for an Orthopaedic Surgeon (paid on the 30th of October 2008), $14,654 to the Geelong Hospital (paid on the 31st of October 2008) and $900 for a Specialist Anaesthetist (paid on the 5th of November 2008).
(f)In October, 2008, he and MacLENNAN purchased the BAlLLIEU family home at 39 to 41 St George's Road, Toorak for a purchase price of $15,500,000 by way of tender. On the 11th of November 2008, MacLENNAN handed RT EDGAR Real Estate, Toorak a bank cheque in the amount of $50,000 as a preliminary tender deposit. On the 14th of November 2008, the accused and MacLENNAN provided a cheque drawn from their personal Westpac Bank account for $1,500,000 as the 10% deposit balance to RT EDGAR Real Estate. There were insufficient funds in the account and the cheque was returned to RT EDGAR on the 17th of November 2008 stating "Refer to Drawer." Monies were never forthcoming and the accused and MacLENNAN breached the contract of sale. As a result of the breach, the vendor was forced to sell to the under bidder for a lower price.
(g)On the 18th of December 2008, MacLENNAN purchased a set of 18 carat gold pearl stud earrings from Duffs Jewellers in Geelong for $790.
50. The Crown alleges that at no stage did the accused invest any of the complainant's $190,000, rather he spent the money on his and MacLENNAN's lifestyle.
51. Since the 15th of October 2008, the complainant received a total of $15,000 from the accused.
Arrest and Record of Interview
52. On the 27th of July 2012, the accused attended Bellarine Police Station as a result of being contacted by police. He was then interviewed.
53. When interviewed, the accused stated that he was not aware of the complainant's term deposit (O&A 28, p.143) He claimed that the $190,000 was given to him by the complainant as a loan, with repayments of 7% interest. He claimed that the loan period was not for 6 months, rather it was ongoing and over a five year period. He stated that the money was spent on "various things." and as to what they were stated "I couldn't be that specific." When asked whether he still had the money stated" ... the money is available to repay it. From the person I will be working for." He admitted that he was declared bankrupt in 2007 and 2011. He agreed that he had declared assets totalling $1000 cash as at the 29th of June 2011. (O&A 29 to 86, pp 143 to 150).
54. The accused denied purchasing the Baillieu family property, stating that his company, Tanrock Consultants had purchased the property. He admitted that he had used the complainant's money to draw the $50,000 cheque. (Q&A 87 to 176, pp 150 to 161).
55. The accused stated he would have spent all of the cash withdrawals on bills, but could not specify which ones. He agreed he gave his ex-wife $5000 to help her pay bills and that he also used the complainant's money to have a knee replacement. With respect to the $9,468.25 cheque to MacLENNAN and the $790 cheque to Duffs Jewellers, he stated he would have given instructions to MacLENNAN to take these funds and use them at her discretion. (Q&A 278 to 344, pp 174 to 181).
56. The accused denied that he had deceived the complainant and that he had used the money on his own lifestyle. He denied that he never had any intention of repaying the money and that he did not have the means to do so. (Q&A 373, p.185)
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