Director of Public Prosecutions v Marannu
[2018] VCC 1848
•9 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
GENERAL LIST
CR-17-02185
CR-18-02188
Indictment No.: H12095179
H13264852
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MEGANITA MARANNU |
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JUDGE: | HER HONOUR JUDGE CONDON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 and 30 October 2018 | |
DATE OF SENTENCE: | 9 November 2018 | |
CASE MAY BE CITED AS: | DPP v Marannu | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1848 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Sentence – plea of guilty – causing a deficiency in a trust account - mercy
Legislation Cited: Conveyancers Act 2006 (Vic), s78(1)(b)
Cases Cited:The Queen v Osenkowski (1982) 30 SASR 212; Akoka v R ( 2017) VSCA 214
Sentence: Total effective sentence of 12 months’ imprisonment with a Community Correction Order (CCO) of 3 years
6AAA declaration: 4 years’ imprisonment with a non-parole period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J S Livitsanos | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms J Poole | Michael J Gleeson & Associates |
HER HONOUR:
1 Meganita Marannu, you have pleaded guilty before me to one charge of causing a deficiency in a trust account, two charges of obtaining a financial advantage by deception, and two charges of theft.
2 Exhibits B and C on the plea in mitigation were Summaries of Prosecution Opening dated respectively 17 July 2018 and 24 October 2018. I incorporate these documents as part of my Reasons for Sentence. However, I will briefly summarise your offending in relation to each Plea Indictment.
3 Dealing first with the offences arising from Plea Indictment H12095179, these three offences were committed between 12 March 2015 and 15 May 2016. Charge 1, being a charge of causing a deficiency in a trust account, related to a period when you were the sole director of a company known as Bonzi Conveyancing Pty Ltd. You held a valid conveyancing licence from 23 October 2008 to 14 May 2016.
4 During the period of the offending, your residential address was 43 Malpas Street, Preston, Victoria. At the relevant time you held Commonwealth Bank personal accounts in your own name, ending in 1152 and 1416. You were also the sole signatory to two Commonwealth Bank business accounts, one named as Bonzi Conveyancing Pty Ltd, ending in 7194 (the trust account), and another known as Bonzi Conveyancing Business Account, ending in 7186. Both business accounts were opened at the same time in 2009 at the Bulleen branch of the Commonwealth Bank. You conducted a conveyancing business, employing staff, and traded as Bonzi Conveyancing.
5 As already noted, on 14 May 2016 your conveyancing licence was cancelled by the Business Licensing Authority. After this date you misrepresented to clients that you held a current conveyancing licence; for example, on the Bonzi Conveyancing website and on the letterhead to clients.
6 At the time of the offending in relation to charges 2 and 3 you were not licensed to carry on a conveyancing business.
7 The overall offending encompasses moneys received from five clients of Bonzi Conveyancing, totalling $97,618.49, which were deposited by those clients, as directed by you, into the Bonzi Conveyancing trust account or the Bonzi Conveyancing office account, for the sole purpose of disbursing funds related to settlement of client properties.
8 The moneys were then withdrawn by you from the trust account and office account, and then deposited into one of your personal Commonwealth Bank accounts held in your name or into another account operated by you.
9 Turning now to the matters the subject of Plea Indictment H13264852 involving two charges of theft contrary to s74 of the Crimes Act.
10 Charge 1 relates to offending that occurred between 9 March 2016 and 6 June 2016.
11 Charge 2 relates to offending that occurred on 6 May 2016.
12 This offending relates to moneys received by you on behalf of two clients of Bonzi Conveyancing, totalling $32,903.50, for the sole purpose of disbursing funds related to settlement of client properties. Overall, in relation to all Plea Indictments, all five clients successfully applied for reimbursement through the Victorian Property Fund.
13 In respect of charges 1 to 3 on Indictment ending 197, you indicated a plea of guilty at an early stage, being at the committal mention on 26 October 2017. Charges 1 and 2 on Indictment ending 852 were then uplifted from the Magistrates’ Court and pleas to these matters entered. I find that they are pleas consistent with your willingness to facilitate the administration of justice and reflective of remorse.
14 You are now 31 years of age. At the time of these offences you were between 28 and 29 years of age. Before me you admitted your prior criminal history. Indeed, it is worth descending into some detail into your criminal history in order to understand the context in which this offending arose.
15 On 7 May 2010 in this Court you were sentenced to a total effective sentence of 36 months’ imprisonment, suspended for three years. The offences to which you pleaded guilty were one charge of obtaining financial advantage by deception and one charge of attempting to obtain financial advantage by deception. The circumstances under which those offences were committed are markedly different from the ones before me. Firstly, the architect of the offending was your husband, a much older man who dominated your life. He was also under police investigation, as whilst he was a practising solicitor he had defrauded his clients.
16 There were a number of matters raised in mitigation on your behalf, one of which was the fact that you had committed those offences largely at the behest of your husband. On appeal the sentence imposed was reduced. In April of 2011 in the Court of Appeal you were ultimately resentenced to a total effective sentence of ten months’ imprisonment, to be wholly suspended for a period of ten months.
17 As a consequence, you have not previously served any time in jail. However, your husband was sentenced to a substantial term of imprisonment, being seven and half years, and was released in August of last year pursuant to parole. He was released a matter of days before your second child was born, a daughter who had been conceived whilst he was incarcerated.
18 Part of the submission in mitigation on your behalf related to your predicament once your husband was gaoled. Alone and isolated, you found yourself under significant financial and emotional stress.
19 Furthermore, it was contended that you were required to accommodate your husband’s parents while living in a rental property in Preston. In essence, the submission was that you found yourself in a position where you were unable to support yourself and your dependants, and turned to this dishonest conduct in order to meet basic financial obligations caused by daily living expenses. There is no evidence of lavish spending nor a dissolute lifestyle.
20 You are the primary carer of your son, aged nine, and daughter, aged 13 months. You are now six and a half months pregnant, and due in January of next year. Your counsel conceded that yours was a case where hardship based upon the existence of exceptional circumstances did not apply. However, the effect of incarceration upon your family unit does warrant some moderation of sentence. Clearly, incarceration would mean that your son (who has had very little contact with his father) and possibly your daughter, aged 13 months, may well be placed in the care of their estranged father.
21 Furthermore, the separation of you from young dependent children, and the prospect of giving birth in a custodial environment, would no doubt make your experience of imprisonment more burdensome. In this vein, I take note of the opinion of Dr Byron Rigby. In particular, his view was that a term of imprisonment would have a devastating impact upon your children, and the effect upon you would be to entrench your depressive symptoms, and worsen a recoverable adjustment disorder into a major depressive disorder.
22 Ultimately, your counsel made the submission that despite the seriousness of the offending here and your prior history, you were an appropriate candidate for an entirely non-custodial disposition. I have given anxious consideration to the able and eloquent plea presented on your behalf.
23 In light of your history, specific deterrence has a role to play in the sentencing exercise. After considerable reflection, I am of the view that this persistent and calculated offending is too serious to warrant an entirely non-custodial disposition.
24 Further analysis is required as to other offending which bears upon my conclusion.
25 The offending the subject of charge 1 on Indictment ending 179 occurred between the dates of 12 March 2015 and 10 February 2016. On 2 December 2015 you were arrested, and search warrants were executed by a joint taskforce involving Victoria Police and the State Revenue Office in relation to offending committed by you while operating as a conveyancer. The dates of that period of offending range from 20 March 2015 to 16 June 2015. Those matters were dealt with on 12 April 2016 at the Melbourne Magistrates’ Court. On that day you pleaded guilty and you were placed on a two-year Community Correction Order (CCO) with 250 hours of community work.
26 In relation to the matters before me, it is only charge 2 on Indictment ending 852 being a charge of theft (date of offending being 6 May 2016), and charges 2 and 3 on Indictment ending 179, being two charges of obtaining financial advantage by deception, that are subsequent matters in so far as the imposition of the CCO is concerned. It causes me considerable concern that within one month of the imposition of the CCO, you resorted to this calculated and dishonest conduct, bearing real similarity to the matters for which the CCO was imposed. I do note, however, that since June 2016 there has been no further offending by you.
27 To your credit, your compliance with the therapeutic conditions of the CCO was satisfactory. You largely completed the hours ordered, and you engaged well with consultant psychiatrist Dr Byron Rigby; attending 33 sessions with him. Given your positive attitude to the therapeutic conditions of the Order, it was recommended that your Order be confirmed with no further action to be taken.
28 Indeed, I have had you assessed to determine your suitability for a further CCO. I had in contemplation very similar core conditions to the ones to which you were already subject. You have been assessed as a suitable candidate for the imposition of a further order. You were described by the author of that assessment as very willing to complete a CCO and perhaps not surprisingly stated that you would do anything to stay with your children, as you are concerned that they may be neglected should you be imprisoned.
29 As already noted, the offending the subject of charges 2 and 3 on Indictment 179 and charge 2 on Indictment 852 occurred within a two-month time frame immediately after you had been placed on a CCO for very similar offending. No doubt, and as was properly conceded by your defence counsel, this constitutes an aggravating factor in your case.
30 You have developed a concerning pattern of dishonest behaviour. Unlike your offending in 2008, your conduct since has not involved your husband, and been entirely of your own accord. As already observed, it is persistent and calculated offending. It involves a gross breach of trust and a manipulation of a system with which you were familiar by dint of the acquisition of your conveyancing licence.
31 Your counsel made an argument based on totality. She contended that the pre‑2016 CCO offending (charge 1 on Indictment 179 and charge 1 on Indictment 852) accounts for four of the seven victims, and $81,108 of a total of $130,521.99. Her argument was that this includes the most serious charge, of causing a deficiency in a trust account, which does indeed carry a 15‑year maximum. In her submission, these matters (had they been detected and investigated earlier) may well have led to being part of the imposition of the CCO in April of 2016.
32 She submitted that the post-CCO offending (charges 2 and 3 on Indictment 179 and charge 2 on Indictment 852) accounts for the remaining three offences, being obtaining financial advantage by deception and one charge of theft, which occurred in the two months after the imposition of the CCO. According to her submission, these matters were insufficiently serious to warrant the imposition of a gaol term.
33 Consideration must no doubt be had to the totality principle by me. However, when viewed globally the amount here, being in excess of $100,000.00, in circumstances of sustained dishonesty in my view warrants a sentence of imprisonment.
34 The prosecution submission was that the objective gravity of your offending could only be met with the imposition of a term of imprisonment and one that would contemplate a non-parole period.
35 I am of the view that yours is a case wherein the sentencing principle of mercy has a place. In that vein, it is important to recall that:
“There must always be a place for the exercise of mercy where a judge’s sympathies are reasonably excited by the circumstances of the case. There must always be a place for the leniency which has traditionally been extended even to offenders with bad records when the judge forms the view, almost intuitively in the case of experienced judges, that leniency at a particular stage of the offender’s life might lead to reform.”[1]
[1]The Queen v Osenkowski (1982) 30 SASR 212 at [212-213]; Akoka v R ( 2017) VSCA 214 at [61]
36 Here there are a number of factors that warrant the exercise of mercy. These are:
(i) The profound impact imprisonment will have upon your young children, of whom you are the sole carer;
(ii) The prospect of a mother giving birth to a baby in a custodial environment must inevitably enliven compassion and sympathy;
(iii) The fact that your offending, while serious and persistent, was driven purely by your inability to cope with the financial pressure you found yourself under once your husband was sent to gaol.
(iv) Your relative cultural isolation, given that you are originally from Indonesia and have very few emotional support mechanisms available to you; and
(v) The fact that it is clear from the Corrections report dated August of this year that your general attitude to the April 2016 Community Correction Order was satisfactory.[2]
[2]With the exception of the further offending. This comment relates solely to compliance with the therapeutic conditions.
37 Thus, in the circumstances, I am of the view that the appropriate disposition in your case is a term of imprisonment combined with a community correction order. I am also of the view that despite your history your prospects of rehabilitation remain reasonable. I say this because I believe those prospects are capable of being harnessed with the benefit of ongoing supervision and continued treatment by Dr Rigby.
38 I turn now to your personal circumstances. You were born in Indonesia, and your parents separated when you were about eight years of age. At around 15 years of age you moved to Australia to complete your secondary schooling. You then returned to Indonesia subsequent to that.
39 In September 2007 you moved permanently to Australia, and not long after you met your future husband, Mr Andre Di Cioccio. You fell pregnant not long after; however, subsequently miscarried. On 31 May 2008 you married him. Your first child, a son, was born on 11 October 2009. He is now nine years of age.
40 In late 2008 you engaged in the deceptions to which I have already referred, and for which you received a suspended sentence.
41 You currently live with your brother and your two children. You are unemployed and in receipt of a single parenting payment. You and your husband live separately but are not estranged, as you are pregnant with your third child to him. Your mother and stepfather live in Indonesia, as does one of your brothers. You have a half-sister who lives in Melbourne, but you have very little contact with her. You have no contact with your parents-in‑law. In this vein, I note that your counsel submitted you were very isolated and with little supports. This, to my mind, highlights the need for the ongoing assistance of Corrections and their supervision, upon your release from custody.
42 The basic purposes for which a court may impose a sentence are punishment, general deterrence, both specific and general, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of the victims, if any.
43 I propose to sentence you in the following manner:
44 In relation to charge 1 on Indictment ending in 179, I convict you and sentence you to a period of imprisonment of six (6) months.
45 In relation to charges 2 and 3 on Indictment ending 179, I convict you and impose an aggregate term of imprisonment of six (6) months. Given the proximity of the dates of offending, I have determined it appropriate to impose an aggregate sentence of imprisonment. I order that this sentence be served cumulatively upon the sentence imposed upon charge 1 which makes for a total effective sentence of imprisonment of twelve (12) months.
46 In relation to charges 1 and 2 on Indictment ending in 852, I convict you and impose a three-year Community Correction Order with the following conditions: I order that you be supervised, that you undergo treatment and rehabilitation for your mental health, and that you be subject to judicial monitoring by me.
47 Pursuant to s6AAA of the Sentencing Act, were it not for your plea of guilty I would have imposed a sentence of four (4) years' imprisonment with a non-parole period of two (2) years.
48 Ms Marannu, before we conclude I have to speak to you about you entering into a Community Correction Order. Do you understand what I'm talking to you about?
49 OFFENDER: Yes.
50 HER HONOUR: You understand that if you breach any of the conditions of that three-year Order, either by further offending or the core conditions, you can be brought back before me for sentencing. Ms Poole has explained that to you?
51 OFFENDER: Yes, Your Honour.
52 HER HONOUR: And you understand, because you have been on a Correction Order before.
53 OFFENDER: Yes.
54 HER HONOUR: With that, you consent to undertaking that three-year Order upon your release from custody?
55 OFFENDER: Yes, I will, Your Honour.
56 HER HONOUR: Very well. I will have my associate provide the Order for Ms Marannu to sign. You may assist if you wish, Ms Poole, at the dock.
57 MS POOLE: As Your Honour pleases.
58 HER HONOUR: Very well. Any other orders?
59 MR LIVITSANOS: As Your Honour pleases. No, Your Honour. Can I just suggest only one matter, Your Honour, that just causes - something telling me but Your Honour would be probably more familiar. I thought there was a recent authority, Your Honour, and I must say I can't immediately turn it up, but s44, Your Honour, which is the combo, is obviously less than 12 months, and I understand there was some issue - - -
60 HER HONOUR: Twelve months is the maximum.
61 MR LIVITSANOS: Twelve months, yes. Taken in a recent authority, Your Honour. I can't immediately turn it up and my mind has just gone blank as to what it is, but as to what that meant and there's some criticism of the court imposing, as we have for some time, 12 months being the trigger, and the Court of Appeal said it needs to be less than 12 months. Can Your Honour just, before Your Honour rises, bear with me?
62 HER HONOUR: Yes. My understanding is the maximum is 12 months.
63 MR LIVITSANOS: Your Honour, that's my understanding too, but I had just recalled reading something just recently. It's not going to change - -
64 HER HONOUR: The only authority that I'm aware of is the problems associated with declaration of PSD and manipulation of that in the context of s44(1) and the concerns that have been raised about failing to declare PSD under s18(4) in order to artificially achieve the parameters of s44, being that sentences were imposed in circumstances where a person had in fact spent a longer period of time. So to my mind there's no issue as I understand it - I may well be wrong - with me imposing a 12-month sentence.
65 MR LIVITSANOS: And there's not, Your Honour.
66 HER HONOUR: That's the maximum.
67 MR LIVITSANOS: It is correct. I just read - and I'm sure it is and I probably am also, Your Honour, being absolutely incorrect but it's just that something is telling me - and I know the authority Your Honour is talking about but I'm sorry, Your Honour - - -
68 HER HONOUR: We will rise and if there is any issue you
can - - -
69 MR LIVITSANOS: Indeed I will. As Your Honour pleases.
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