Director of Public Prosecutions v Maddock
[2019] VCC 2213
•19 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-01615
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTHONY MADDOCK |
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JUDGE: | HIS HONOUR JUDGE C RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 17 December 2019 | |
DATE OF SENTENCE: | 19 December 2019 | |
CASE MAY BE CITED AS: | DPP v Maddock | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 2213 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – Theft – Plea of guilty.
Legislation Cited: Sentencing Act 1991
Cases Cited: R v Verdins & Ors (2007) 16 VR 269
Sentence: Aggregate sentence of 2 years imprisonment with a non-parole period of 15 months imprisonment; 2 days pre-sentence detention; 6AAA declaration: 3 years imprisonment with a non-parole period of 2 years imprisonment.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr A. Sharp | Solicitor for Office of Public Prosecutions |
| For the Accused | Ms A. Kapitaniak | Robert James Lawyers |
HIS HONOUR:
1 Anthony Maddock, on Tuesday, 17 December 2019, your plea was conducted in respect to Indictment J105588658.1 containing four charges of theft.
2 The maximum penalty for theft is 10 years’ imprisonment.
3 You are a 60 year old man without prior conviction.
4 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening on plea. At the time relevant to the counts on the indictment, you were the sole director of SF Global Pty Ltd and operated a business named Solutions Franchising Group. At least part of the business of your company was to facilitate the purchase and sale of new and existing “Coffee Club Franchises” and in particular franchises in Western Australia.
5 SF Global Pty Ltd was a company registered in Victoria and operated in St Kilda Road, Melbourne.
6 Your relationship to Coffee Club Franchise dated back to the 1990s and you operated as a broker for them on what was described as a “handshake agreement”.
7 Your offending, though straightforward, requires some explanation. In respect to Charge 1, your victims, Mr and Ms Chawla, were applicants for a Coffee Club Franchise in Western Australia. Your victims paid a deposit of $22,000 to be held in trust by your company in anticipation of finalising the purchase. The deposit was to be held until the completion of the transaction when it would be applied to the purchase price or was fully refundable if the transaction did not proceed to settlement.
8 On 27 March 2016, Mr and Mrs Chawla decided not to proceed with the purchase and advised the Coffee Club Franchise accordingly and requested return of their deposit. Likewise on 28 March 2016 you were advised of Mr and Mrs Chawla’s intention.
9 Your victims did not receive their deposit moneys and it was accepted that the moneys were expended by you.
10 In respect to Charge 2, Deric and Elyn Won were applicants for a Coffee Club Franchise and were put in touch with you as a facilitator for Coffee Club Franchise buyers and sellers. You met your victims in February 2015 and went through with them the procedures and requirements for purchasing a Coffee Club Franchise. Again, a deposit of $22,000 was required of your victims and was paid to you in three payments during the first week of April 2015.
11 The purchase did not complete and accordingly the deposit was refundable to your victims. When enquiries were made of the Coffee Club Franchise, your victims were advised that the Coffee Club Franchise had not received the deposit funds from you. Coffee Club Franchise refunded the deposit moneys to Mr and Mrs Won in full after a transfer by Mr and Mrs Won of their right to recover the $22,000 from you to the Coffee Club Franchise.
12 Mr and Mrs Gooch were franchisees and operators of a Coffee Club Franchise in Midland, a suburb of Perth. Mr and Mrs Gooch decided to sell their franchise and were referred to you as a broker for the sale. You met with Mr and Mrs Gooch and a sale price of $670,000 was settled upon. A sale was arranged and pursuant to the contract of sale, a deposit of $100,500 was payable by the purchaser. The deposit holder under the contract of sale was your company, SF Global Pty Ltd, trading as Solutions Franchising Group. The deposit was to be released to the vendors on settlement.
13 On 17 November 2015, the sale price for the franchise was reduced to $590,000 but the amount of the deposit remained the same. On 15 March 2016, the sale was completed and the deposit moneys were payable to Mr and Mrs Gooch. Mr and Mrs Gooch did not receive their deposit. By reference to Schedule “A” to the indictment, you expended $95,905.15 of the deposit moneys.
14 Charge 4 relates to the sale of a Coffee Club Franchise located in the Galleria shopping complex in Morley, a suburb of Perth. The owners of this franchise were Chris Dellit, Karen Lewis and Rhonda Lewis.
15 On 15 December 2015, a contract for the sale of the Galleria Coffee Club Franchise was signed by the vendors and the buyer Gerol Pty Ltd as the Trustee for the Coetzee Family Trust. The agreed sale price was $750,000. The deposit was $127,500. The deposit was to be paid to the vendors upon completion of the sale. On 30 September 2015, Gerhard Coetzee on behalf of the buyers paid the deposit to Solutions Franchising Group. The funds were deposited into the account of SF Global Pty Ltd and by reference to Schedule “B” to the indictment, you expended $76,896 of that deposit. The vendors of the Galleria Coffee Club Franchise did not receive the $127,500 deposit moneys.
16 There appears to have been contact made by your victims with the Coffee Club Franchise and yourself seeking payment. However, these attempts to recover the moneys owed to them in the main proved fruitless and ultimately your victims went to the police and on 9 May 2017 you were interviewed under caution. You made full admissions as to your conduct, acknowledging that the moneys that you had received were expended on your company’s operational expenses. A perusal of Schedules “A” & ”B” to the indictment reveal many cheques made payable to you personally. In total, you stole something in excess of $216,000 from your victims.
17 Tendered as Exhibit B were four Victim Impact Statements from Mr Deepak Chawla, Mr Kevin Gooch, Mr Chris Dellit and Ms Karen Lewis. Mr and Mrs Chawla, as new arrivals to Australia, sought to open a business and so seek a better life in their adopted homeland. Mr Chawla describes his desire to have his own business in Australia as having been shattered by your conduct
18 In his Victim Impact Statement, Mr Gooch sets out in some detail conversations that he had with you in respect to his personal circumstances and that of his wife. The reason why Mr and Mrs Gooch were selling their business was due to Mrs Gooch’s ill health, she had been diagnosed with terminal cancer. Mr Gooch deposed in his Victim Impact Statement that:
“After many failed attempts to get my money, and broken promises by Mr Anthony Maddock, the deposit was never released. I engaged a Lawyer and the subsequent additional costs incurred by me was approximately $20,000.00. The outstanding money was also to clear the mortgage on my personal home. I am still struggling to pay off the mortgage to this day.”
19 Part of the purchase moneys were to be used to allow Mr and Mrs Gooch to travel to New Zealand so that Mrs Gooch might make a final farewell to family and friends. Owing to the shortfall in the sale price arising from your criminal conduct, Mrs Gooch was unable to make that trip.
20 Mr Chris Dellit had known you for approximately nine years and had worked with you as a consultant to the Coffee Club Franchise. In anticipation of a successful transaction, he and his wife sold their home in Brisbane and moved to the Sunshine Coast and bought the house in which they intended to retire. As a result of not having received all of the settlement funds owed to them and principally the funds held by you, Mr Dellit and his wife have increased mortgage payments to meet on their new home and incurred solicitor’s costs seeking advice as to how to recoup their losses. To add insult to injury, they had to pay tax on money that they did not receive. They are under financial strain and Mrs Dellit has had to return to the workforce in order to keep the couple’s heads above water.
21 Ms Lewis in her Victim Impact Statement deposed that you portrayed yourself as a professional broker who she could trust to sell the business in which she was a partner. As a group, she and her two partners had spent years building up their business in order to gain some financial reward for their hard work. Ms Lewis’s motive for selling the business was to obtain some financial breathing space to help set up her mother in a retirement home. As a result of not receiving the funds that were owed to her and her partners, Ms Lewis had to take out a loan in order to establish her mother in a retirement home and she was still servicing that loan as at 2 December this year.
22 It is plain from the Victim Impact Statements that you established a rapport with your customers and were privy, at least in part, to their personal circumstances. Your breach of trust in respect to each of your client victims is palpable and the consequences of your criminal conduct on each of your victims has been profound.
23 Ms Kapitaniak of Counsel who appeared on your behalf, submitted that your offending occurred in the context of cash flow issues in your failed business ventures. She acknowledged that you were effectively robbing Peter to pay Paul. She likewise conceded that your offending involved a breach of trust. However, she submitted that your conduct could not be characterised as the most serious example of the charge of theft in what she described as “white collar” terms. Ms Kapitaniak submitted that your conduct lacked premeditation, planning or any level of sophistication such as measures to avoid detection. Further, she submitted, there was no evidence of greed and certainly no evidence of enrichment.
24 In respect to the submissions that your offending lacked sophistication and that there were no measures taken by you to avoid detection, you were not an employee and your books of account were not subject to review by anyone save yourself. There was no need for you to enter into any ruse or engage in false accounting to protect yourself from immediate detection.
25 As to your personal circumstances, you are 60 years of age. You were born in the United Kingdom and migrated to Australia as an infant in 1960. You were educated in Victoria and Western Australia and obtained your VCE from Cobram High School. You hold a Bachelor of Business obtained from Monash University in 1979, a Diploma in Marketing obtained from the Royal Melbourne Institute of Technology in 1997 and a Graduate Diploma of Management obtained from Deakin University in 2000. You were declared bankrupt in April 2018 as a result of the failure of your business and the company SF Global Pty Ltd, which you established in March 2014, was placed in liquidation in November 2016. I was informed that you are currently providing consultancy services to long term clients with potential involvement in projects in 2020.
26 You have been in a relationship with your partner, Andrea, for some 29 years. A reference from your partner forms part of Exhibit 3 on the plea. Your partner writes that you are a good person that has made a commercial mistake. Further she writes that you are needed in your home to assist her with her brother who is 63 years of age and suffers from mental health issues. Further she writes that she works full time and is obliged to support the household as you have been declared bankrupt.
27 Making up the balance of Exhibit 3 were two further references, one from Raymond Widjaja, a person who has known you since 2007 and has been involved in business with you since that time. Mr Widjaja opines that you have always been polite, reliable, confident, honest and caring throughout your business dealings with him. In addition, you share a personal friendship and you have interacted with Mr Widjaja’s family and friends over the years. Further he writes that the consequences of your offending have taken a big toll on your life and affected you enormously.
28 The third reference comes from Ms Chloe Chan who was described as your mentee. She describes you in the following terms:
“Anthony has been a guide and mentor for me as I established and operated successive businesses. Anthony assisted with the purchase of both my business operations and has always been available to help and advise me. I plan to work more closely with Anthony in the future.”
29 Ms Chan goes on to write that you were “a kind, generous and thoughtful person who always puts other persons first.” Tendered as Exhibit 2 was the report of Patrick Newton, psychologist, dated 24 November 2019. At the outset, it is important to note that Ms Kapitaniak did not rely upon any of the principles of R v Verdins. It is apparent from a perusal of Mr Newton’s report that during the course of the financial pressures that you experienced which brought about your offending you experienced bouts of anxiety. You are presently anxious in respect to the position in which you now find yourself with your liberty in the balance.
30 Ultimately Ms Kapitaniak relied upon your plea of guilty, delay in the prosecution and your previous good character and general background in support of her submission that a lengthy Community Correction Order with conditions was the appropriate sentencing disposition in all the circumstances.
31 When questioned as to the conditions that were appropriate to be included in a Community Correction Order, supervision and unpaid community work appeared to be the only conditions that were relevant. Ms Kapitaniak submitted that a condition of psychological treatment and rehabilitation was appropriate and relied upon paragraph 33 of Mr Newton’s report to support this submission. To my mind the contents of Mr Newton’s report do no more than demonstrate that when you are under pressure you experience anxiety and this is not sufficient to include psychological treatment as a condition of Community Correction Order, in my opinion. Further, a Community Correction Order with such limited conditions does not meet the purposes of sentencing appropriate to you.
32 This matter initially came on before me as a trial. It appeared to me that the matter cried out for settlement and during the course of discussions prior to the commencement of the trial, I said so. The matter was stood down and eventually settled on the basis of the indictment presently before the Court. The matter resolved on the basis that you stole the amounts of money that you expended out of the funds that you obtained from your clients, the subjects of Charges 3 and 4 as opposed to the total amount of funds obtained from them. The difference between the parties as to the appropriate indictment seems to have been an ongoing dispute and has caused some delay in the resolution of this matter.
33 To my mind little turns on the difference of opinion held by the accused’s counsel and the crown as to the appropriate form of the indictment, as your criminality is not to be determined simply by the amount of money that you stole. It is the nature of the thefts, your breach of trust in respect of each of your client victims, one of whom you had known for years and had been in business with and others about whom you knew some private and personal details. In addition the consequences to your victims and the brazenness of your offending truly inform the nature of your criminality.
34 In the circumstances when you were under financial stress you simply took the opportunity to steal funds from your clients, all save one of whom have recovered no moneys as a result of their dealings with you.
35 You have pleaded guilty and are entitled to the benefits that flow to you from that plea being that it is some evidence of your remorse and that it has utilitarian benefit.
36 Your counsel submitted that your plea was an early one because you pleaded to what so far as those who advised you were concerned was an appropriately drafted indictment and not the trial indictment filed by the crown. In my view this submission is more accurate in form than in substance. However, as referred to above you will receive the benefits that flow to you from your plea.
37 You are entitled to the mitigatory benefit of delay although I do not regard the delay as inordinate and it is plain that in part the victims of your offending sought civil relief before they resorted to the police. Further, there were many mentions in the Magistrates’ Court that seem to have concerned an appropriate resolution of this matter. There is no evidence before me of the steps that you have taken during the period of delay to re-order your life. It is true that the delay has weighed on you and made you anxious and I must give full weight to this aspect of delay.
38 While the amount of money stolen by you is not as large as the sums stolen by others who fall to be sentenced in this Court, however, I regard your offending as serous, it was repetitive and was committed over some many months. Your offending involved breaches of trust. Having said that your offending lacks many of the aggravating features that sometimes are present in this kind of offending namely, there is no evidence of enrichment or expenditure of funds on extravagant items.
39 I must take into account your age and lack of prior convictions, or expressed another way, until the instant offending you had lived a law abiding life. In my assessment you have good prospects for rehabilitation.
40 Denunciation, just punishment and the application of the principles of general deterrence are the principle purposes of sentencing when arriving at an appropriate sentence in your case.
41 Will you please stand?
42 By this sentence, I must punish you, publicly denounce your conduct and deter you and others from committing this kind of crime. Taking into account the circumstances of your offending and its effects, and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending that I regard as a course of conduct I consider that an aggregate sentence is appropriate. Accordingly I sentence you to two years’ imprisonment and I fix the period of fifteen months’ imprisonment as the period of imprisonment that you must serve before you will become eligible for parole.
43 I declare that you have served 2 days by way of pre-sentence detention not including today.
44 Pursuant to s6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have sentenced you to three years’ imprisonment with a non-parole period of two years.
45 Is there anything that arises from this sentence?
46 MS KAPITANIAK: As the court pleases.
47 MR SHARP: No, Your Honour.
48 HIS HONOUR: Remove the prisoner.
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