Director of Public Prosecutions v Ozer
[2024] VSC 119
•19 March 2024
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2023 0046
| DIRECTOR OF PUBLIC PROSECUTIONS | Crown |
| v | |
| YASEMIN OZER | Accused |
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JUDGE: | TINNEY J |
WHERE HELD: | Melbourne |
DATES OF HEARING: | 22 June, 27 September and 14 December 2023 |
DATE OF SENTENCE: | 19 March 2024 |
CASE MAY BE CITED AS: | DPP v Ozer |
MEDIUM NEUTRAL CITATION: | [2024] VSC 119 |
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CRIMINAL LAW – Sentence – Theft by solicitor of clients’ funds – In excess of $500,000.00 stolen over approximately five years – Accused under grip of gambling addiction which arose in aftermath of traumatic events – Admissions to police and early plea of guilty – Remorse – Money repaid to clients by Fidelity Fund but no repayment by accused – Accused diagnosed with incurable illness after offending – Limited life expectancy – Important sentencing purposes – Place of mercy in sentencing task - Whether community correction order (‘CCO’) capable of being sufficiently punitive without unpaid community work condition – Accused made subject to 3 year CCO with conviction – Order made by Court removing name and other particulars of accused from Supreme Court roll of Australian lawyers – Legal Profession Uniform Law Application Act 2014, Schedule 1, s 23(1).
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D Porceddu | Ms A Hogan, Solicitor for Public Prosecutions |
| For the Accused | Ms G Morgan | Doogue and George Criminal Lawyers |
HIS HONOUR:
Introduction
Yasemin Ozer, you have pleaded guilty to six charges of theft totalling a sum in excess of $500,000.00. Your crimes, which spanned a period of almost five years, were carried out by you in your role as a suburban solicitor. You stole from your clients, and, as such, your offending constituted an enormous breach of the trust reposed in you as a lawyer.
In ordinary circumstances, you could have expected to receive a substantial term of imprisonment for your crimes. However, the circumstances of your case are far from ordinary.
First, I am satisfied that the gambling addiction which drove your offending came about as a direct result of a very tragic event which occurred in your life, to which I will turn in detail shortly.
Secondly, I am satisfied that as a direct result of your crimes, you have lost your career, your home, your family, and your possessions. You have suffered a dramatic and complete fall in your circumstances, your future prospects, and the quality of your life.
Thirdly, I am satisfied that since your offending, you have been struck down by a serious illness which sees you now in a very sad physical state and with a dramatically shortened life-expectancy.
Your crimes
You were admitted as an Australian lawyer on 15 February 2005, and held a practising certificate with trust authority from 5 April 2005 until 30 June 2020. You ran a sole practice trading as Ozer Lawyers and undertook work in various practice areas including business law, compensation and personal injuries, conveyancing and property, family law and wills and estates.
The six charges on the indictment are charges of theft by you of monies held in your office account or trust account for the benefit of the respective victims. All charges with the exception of Charge 5 are rolled up charges.
Charge 1
Maxwell James was the executor of the estate of his late partner, Samantha Collins, who died in early 2015. In July 2015 he attended your office to discuss probate for the estate. Collins’ will provided that approximately one third of the estate (valued at $173,270.40), was to be split evenly between her three grandchildren, and placed in trust until they were 25. At the time of the preparation of the Amended Summary of Prosecution Opening for Plea, the children were aged 15, 13 and 10. The rest of the estate was to be divided between Ms Collins’ son and daughter, and her partner, Mr James.
The death of Ms Collins’ son resulted in his share of the estate being divided between Mr James, Ms Collins’ daughter and the grandchildren.
In December 2015, Mr James and Ms Collins’ daughter received their shares of the estate, and Mr James believed that everything had gone as planned.
In January 2021, Mr James was contacted by a lawyer appointed by the Victorian Legal Services Board, who informed him that he had taken over control of your office, and that you had removed $173,270.41 from the trust account set up for Ms Collins’ grandchildren.
Transaction records revealed that between September 2015 and September 2016, you had made eight withdrawals totalling $179,164.27 from the trust account. In effect, this meant that the entirety of the grandchildren’s share in Ms Collins’ estate had been stolen.
Charge 2
Maria Gerada was the executor of the estate of her late husband, Joseph Scerri, who died in July 2017. The estate was valued at $204,529.72. In November 2017, Ms Gerada and other family members attended your office to engage you to look after the probate of the estate. Ms Gerada and other family members were in frequent contact with you over the ensuing months to discuss probate. You repeatedly claimed matters were being delayed by other parties, including the Department of Veterans’ Affairs (‘Veterans’ Affairs’). In late 2019, Ms Gerada’s son, being sceptical about the delays, contacted Veterans’ Affairs, and was informed that you had never been in contact with them concerning the estate.
In the end, it was revealed that between 4 and 29 January 2018, by the use of 17 transactions, you had stolen the full amount of the estate from your office account.
Charge 3
Fuat Kapitan engaged you to carry out the conveyancing in respect of a property sale and distribution of the proceeds to himself and his ex-wife. Of the money owing to Mr Kapitan, you distributed a portion, but withheld $53,900.00, despite the numerous attempts he made to contact you. A fee of $2,000.00 was also incurred by Mr Kapitan.
Transaction records revealed that in November and December 2019, you effected 45 transactions totalling in excess of $108,000.00 from the trust account, of which $55,000.00 was paid to Mr Kapitan. In all, you stole $55,900.00 (the $53,900.00 withheld from the property sale, plus the $2,000.00 fee).
Charge 4
In December 2019, Ihan Dinek engaged you to carry out conveyancing for the purchase of a property in Broadmeadows. He paid you a total of $74,622.00 for stamp duty and other fees, and the deposit owing. As the settlement date of 30 June 2020 drew near, Mr Dinek tried unsuccessfully to contact you. Being concerned, he approached another conveyancer to complete the conveyance. Mr Dinek’s subsequent attempts to contact you for a refund were fruitless.
Transaction records revealed that between May and June 2020, you made 32 transactions on the office account to a sum of $73,742.00. A portion was paid to the seller of the property, but the remaining $60,122.00 was stolen by you.
Charge 5
Elaine Hill consulted you for the purpose of preparing wills for herself and her ex-husband. She paid you for the service. In addition, at your request, on 7 January 2020 Ms Hill paid you the sum of $3,090.00 ostensibly to obtain an original Land Title for a property which she and her ex-husband owned. The amount was paid in cash.
Subsequent attempts by Ms Hill to contact you were in vain. When she contacted the Land Titles Office, she was informed that there were no notes in respect of any Land Titles request made on her behalf. The evidence shows that you stole the $3,090.00 which Ms Hill paid you.
Charge 6
Ulka Aydin engaged you in February 2020 to prepare documents relating to a Family Court order. In February and March 2020, at your request, Mr Aydin paid you a total of $8,600.00 for legal services. You never provided these services, instead removing the full sum provided to you from your office account by 19 transactions between 6 February and 8 March 2020.
Arrest and interview
You were arrested on 9 February 2021 and interviewed at Melbourne West Police Station by Senior Constable Mulabegovic and Senior Constable Simcock-Bailey. At the time of the interview, only the events surrounding the Joseph Scerri deceased estate (Charge 2) were known by police. You admitted to that theft, and stated that there would be other victims of your offending, but you were unable to name them. You indicated that you had a massive gambling problem, that playing poker machines had been a means of escaping reality, that most of the stolen money had been spent on gambling, and that all of your own property had been dissipated as a result of your gambling. You told police that you had been a victim of domestic violence, and that your ex-husband had killed your three step-children before committing suicide in 2010. You further informed them that you had not applied for another practising certificate after the expiry of your practising certificate on 1 July 2020, because you knew you were doing the wrong thing.
Details of other victims were provided by a Victorian Legal Services Board investigator to Victoria Police. All victims have been paid back in full, inclusive of interest, from the Fidelity Fund.
You have not paid back any of the stolen funds.
Invitation to Court to remove name from Supreme Court roll
The prosecution invited me to make an order, on the Court’s own motion, removing your name from the Supreme Court roll of Australian lawyers, pursuant to s 23(1) of the Legal Profession Uniform Law contained within Schedule 1 of the Legal Profession Uniform Law Application Act 2014.
Ms Morgan, who appeared on your behalf during the plea hearing, indicated that you have accepted for some time that your professional career as a lawyer is over. She did not oppose the making of this order.
Personal background
You are now aged 57, and other than the current offending, you have never been in any trouble with the law. You were born in Türkiye and came to Australia with your family when you were two years’ old. You are the eldest of five children. You describe a good childhood, although your parents’ demanding work schedule - your father as a mechanic, your mother a machinist - meant that they were absent from the family home for long periods of the day. As the eldest child, you had additional responsibilities connected to housekeeping and the care of your younger siblings.
You had an unremarkable but happy childhood, concluding your secondary education at Upfield High School. Thereafter, you demonstrated your capacity for hard work and increasing your vocational skills.
You left the family home at the age of twenty, temporarily relocating to Türkiye for an arranged marriage. You maintained a close relationship with each of your parents. Your mother died in 2015 from lung cancer, and your father suffered a stroke and died in 2021.
Following school, you completed a Diploma of Welfare Studies at Footscray TAFE before completing a Bachelor of Arts majoring in Community Development at Victoria University, and then a Bachelor of Laws at La Trobe University. You completed the law degree part-time while you had the full-time care of your young children.
Before becoming a lawyer, an ambition which you had held for many years, you worked in a secure housing facility for women who had suffered abuse, and a number of other jobs relevant to your qualification in community work.
Having qualified as a lawyer, you worked in a firm for one year, before setting up your own practice, Ozer Lawyers, specialising in areas including conveyancing and property, and wills and estates. You describe having loved your job, because you enjoyed helping others and achieving good outcomes for them.
Your arranged marriage in Türkiye in 1987 led to two children, a son and a daughter. The marriage was not a happy one, and you and your husband separated after 12 years together. Thereafter, you maintained an amicable co-parenting relationship.
After another relationship for three years, you met your second husband, Rajesh Osborne, (‘Osborne’) in 2006. You married in 2007. Osborne had the care of his three young children at the time that you met him, and you took on the role of step-mother to the children, as well as having the care of your own youngest child. Osborne became controlling and moody some way into the relationship. The marriage was marred by domestic violence towards you, characterised by coercive control and jealousy.
You and Osborne separated in 2008 and were divorced in 2010, although you maintained a relationship with him, largely because of his persistence in keeping in contact with you.
In late-March 2010, you reported a sexual assault upon you by Osborne when he had arrived unannounced and unwelcome at your home. A family violence intervention order was applied for on your behalf and Osborne was interviewed by the police in relation to the sexual assault on 8 April 2010.
Death of your step-children and inquest
On the morning of 10 April 2010, Osborne used a sawn-off pump action rifle to shoot each of his three children, then aged twelve, nine and seven, once to the head, killing them. He then turned the rifle on himself and killed himself by a single shot to the head. He left, in his pocket, a note which essentially blamed you, and the complaint you had made to the police, for his terrible actions.
In her finding following the inquest in 2012, the State Coroner Ms Coate described the note left by Osborne as bearing ‘the hallmarks of the family violence perpetrator who fails or refuses or is unable to take responsibility for his actions and indeed blames his horrendous final acts of violence against his children and himself on someone else for causing or provoking his actions.’[1] Her Honour also indicated that it was ‘not surprising’ that you were fearful that you would be blamed by society for what Osborne had done to his children. [2]
[1]Inquest into the Death of Rajesh Rohit Ram Osbourne, Asia Charlotte Osbourne, Jairus Nicholas Osbourne, Grace Cheyanne Osborne (Coroners Court of Victoria, State Coroner Coate, 8 May 2012) [97].
[2]Ibid [98].
Psychological material, onset of gambling, and commission of offences
The devastating effect upon you of the tragic deaths of your step-children at the hands of your former husband was outlined by Ms Naomi Cameron, the forensic psychologist who assessed you in the lead-up to the plea hearing. You apparently felt guilty and ashamed, holding yourself partly responsible for the deaths. That these feelings of guilt and shame, looked at from afar, seem entirely unwarranted, takes nothing away from their substantial impact upon you at the time and in the years that followed. When you received counselling from a Victims of Crime Assistance Tribunal counsellor, you received further information that further compounded your grief and shock. For present purposes, it is unnecessary to detail that information in these reasons.
Your mental health declined rapidly in the aftermath of the shocking events set out above. You have had regular contact with community and crisis mental health services since 2010. You have received formal diagnoses of post-traumatic stress disorder (‘PTSD’) and major depressive disorder (‘MDD’) with psychotic features. Ms Cameron opined that the onset of your mental health issues was caused by the traumatic circumstances surrounding your marriage breakdown, the sexual assault upon you, the deaths of your three step-children, and the other matter to which I obliquely referred earlier.
Your PTSD and MDD have been characterised by a wide range of negative symptoms including low mood, anhedonia, sleep disturbance, hypervigilance and suicidal ideation. You have experienced psychotic symptoms of visual and auditory hallucinations and paranoia.
You received short-term treatment in the immediate aftermath of the traumatic events by a psychologist, but unfortunately, you resorted to one particularly unhelpful coping strategy in the form of gambling. You then rapidly developed a serious gambling disorder which, in due course, was at the very heart of your offending in this case.
You informed Ms Cameron that you commenced your gambling in 2010. This differs from what you had told the police, which was that the commencement of your gambling was in 2013, three years after the murder of your step-children, following a period of intense distress and pre-occupation. I think that account is more likely to be correct. Whatever the true position is, your commencement of gambling occurred in the context of your substantial descent into mental ill-health. The way in which you described this to the police in the interview is instructive.
You explained the circumstances of the death of your step-children, and then stated:
And then I couldn’t stop thinking about what he’d done, like, constantly. For three years I was thinking if I had’ve known, I could have done this, I could have done that, I could have done this….And then…just about three years about, 2013, I just happened to go into a pokie machine place and…then I couldn’t stop as I…didn’t have to think about what he’d done any more. And that was the only time my mind was silent, when I didn’t have to think about what he’d done and the damage he’d caused…And it just, like, escalated and escalated and nothing was enough. Like, all my assets, everything was gone.[3]
[3]Police interview QQ 32-36.
You informed Ms Cameron that during the course of your gambling problem, you lost close to two million dollars, including all of your life savings, three properties, your shares, and your jewellery. Having exhausted all of your financial assets, you started using funds from Ozer Lawyers’ office and trust accounts to finance your gambling, intending to regain both those funds and all that you had lost through further gambling. You became homeless, spending time living in your office in 2019, and then later in rooming houses which you shared with drug addicts and other homeless people. You now live in community housing in an inner suburb of Melbourne. You have been unemployed since the closure of your legal practice and have no employment prospects. You are on a disability support pension. You have little contact with your children and siblings. You apparently have two friends at the same independent living location where you reside. They are unaware of the current charges or of your prior career as a lawyer, because you have been too embarrassed to share the information with them.[4]
[4]See Tahlia Barkho and Kiayia Louch, Extended Pre-Sentence Assessment – Outcome Report (Final Report on Yasemin Ozer, 20 February 2024). See also paragraphs 102-103, below, for further discussion of this report.
You claimed that your offending was committed to fund your gambling addiction. In the aftermath of your offending, you claimed to feel guilty, ashamed and embarrassed.
You received gambling counselling through the Salvation Army in 2018 and 2019, while your offending was continuing. You received further intervention after your arrest in 2021, and your gambling significantly reduced. You engaged in a total of ten targeted sessions with a gambling counsellor in 2023. You are willing to engage in further gambling counselling.
In 2020, you attempted suicide by an overdose of aspirin, and contemplated jumping off the balcony of a hotel while interstate. You have had several psychiatric admissions since then. You have been treated for some years with antipsychotic and antidepressant medication.
Ms Cameron detailed in her report the psychiatric treatment you have received in the years since your offending, and the dramatic effects on your life that the conditions from which you suffer have caused.
Ms Cameron carried out psychometric testing on you using a number of established measures. The results of one of the measures indicated that you did not currently meet the criteria for a diagnosis of PTSD, but in the view of Ms Cameron, this outcome did not accord with your self-report, your clinical presentation and collateral material which were illustrative of your experiencing extreme levels of trauma. In the circumstances, the result did not sway Ms Cameron in her view as to the correctness of the PTSD diagnosis.
Your results on a questionnaire designed to measure your experience of symptoms of depression, anxiety and stress over the previous week were indicative of an extremely severe level of depression and elevated levels of anxiety and stress. Results on another tool confirmed the presence of severe depressive symptoms, with suicidal ideation.
A risk assessment carried out by Ms Cameron with the assistance of the Level of Service Inventory – Revised pointed to a low risk of reoffending for a number of reasons. The risk would increase with a change in your dynamic risk factors, including ineffective management of your mental health, increased gambling, and psychological destabilisers including homelessness. Ms Cameron opined that your, ‘risk of reoffending can be mitigated through appropriate treatment and psychological intervention to manage [your] severe mental health issues and gambling disorder, thus making [your] prospects of rehabilitation fair’.[5]
[5]Naomi Cameron, Confidential Psychological Report re Yasemin Ozer (Final Report, 31 May 2023) [91] (‘Cameron Psychological Report’).
Ms Cameron further posited that the extreme trauma and grief you experienced in the aftermath of the catastrophic events in 2010 predisposed you to develop PTSD. That condition was further aggravated and perpetuated by later events reminding you of the trauma, including the inquest in 2012. Your PTSD also predisposed you to the development of MDD, which in your case was of such severity as to have psychotic features. Her opinion was that you met the criteria for MDD at the time of your offending, and at the time of her assessment of you.
Ms Cameron considered that your obsessive gambling developed as a form of coping and escapism from your severe psychological distress, trauma and unresolved grief. This resulted in gambling disorder, characterised by a preoccupation with gambling, an increased need to gamble with increasing amounts to achieve the desired outcome and excitement, and repeated unsuccessful efforts to control or cease your gambling. Your gambling jeopardised your career and your financial condition, leading to homelessness and transience. She considered that your gambling disorder was severe at the time of the offending, and mild at the time of assessment.
Ms Cameron opined that your gambling disorder was directly linked to your offending behaviour, which was precipitated by your desire to fund your habit in the face of your ever-worsening financial circumstances. She stated:
Whilst her offending was premeditated, planned and methodical, Ms Ozer’s capacity to engage in rational decision making and appreciate the wrongfulness and consequences of her conduct was impaired…Her enduring psychopathology has undermined her ability to think clearly, respond calmly and exercise appropriate judgment, thereby contributing to her poor behavioural outcomes.[6]
[6]Cameron Psychological Report (n 5) [105].
Ms Cameron opined that imprisonment would likely weigh significantly more heavily on you than upon a person without the conditions, both psychological and physical, from which you suffer. She expressed concerns about the level of treatment you could expect to receive in custody for both the mental health problems and physical illness from which you suffer. I will turn to your physical illness shortly. Further, she noted that the volatile nature of the prison environment could lead to an exacerbation of your underlying PTSD symptoms.
Medical material
In August 2022, you were diagnosed with incurable stage 4 metastatic breast cancer. By the time of your diagnosis, the cancer had spread to your bones, liver, lungs and lymph nodes. As a result of the spread to your bones, you suffered spontaneous fractures to the pelvis and a rib.
Dr Veronica Aedo-Lopez, your oncologist from Peter MacCallum Cancer Centre and Royal Melbourne Hospital Oncology service, gave evidence during the plea hearing, and provided several reports which were tendered in evidence. Dr Aedo-Lopez explained that from the time of your diagnosis, the focus of treatment has been to extend your life and manage the severe pain and other symptoms you have experienced from your illness.
The first line of treatment in your case was hormone receptor treatment, the premier treatment for cancer of your type. Unfortunately, notwithstanding good early indications, your eventual response to the treatment was not as good as had been hoped, and you stopped responding positively after nine months, as confirmed by a positron emission tomography (‘PET’) scan carried out in June 2023.
A multi-disciplinary meeting that followed determined that the next step for you would be oral chemotherapy. Your response to this next line of treatment has been mixed. Some lesions were seen to be increasing in size, whilst some decreased. At the time of the final day of the plea hearing, your treatment with the oral chemotherapy drugs was continuing, with your progress being monitored by regular PET scans.
A monitoring of your blood in late-November 2023 known as a ‘tumour marker’ indicated that you were continuing to respond to the medication. Dr Aedo-Lopez informed the Court, however, that on 12 December 2023 during her consultation with you, you were again experiencing pain, which the specialist considered to be ‘suspicious’.[7]
[7]Transcript 12, 14 December 2023.
Dr Aedo-Lopez described your symptoms at the time of the hearing, including fatigue, frequent diarrhoea, hand-foot syndrome, and pain. As well as the cancer medications you are on, you are prescribed oxycodone and pregabalin to control the pain, temazepam to aid in sleep, an antidepressant, and other medications to deal with the symptoms which arise as secondary side-effects of your cancer treatment.
Dr Aedo-Lopez indicated that at some time in the future, you will cease responding to the current cancer drugs you are taking, and then a further mode of treatment will be necessary.
Dr Aedoz-Lopez was unable to be definitive on the question of your life expectancy, though she opined that it is likely to be in the range of between one and two years from the last day of the plea hearing. That projection is based on your observed limited response to the initial treatment.
Dr Aedo-Lopez frankly admitted her lack of personal knowledge of the treatment which would be available to you in a custodial setting, but expressed the opinion that from a medical perspective, a change from the current position to that which would be available through St Vincent’s Health in the prison setting, would be ‘not the best of ideas’,[8] as continuity of the treating team would be the optimal outcome.
[8]Transcript 12, 14 December 2023.
Following the last day of the plea hearing, the Court received information from Dr Aedo-Lopez, summarising more recent developments in the progression of your illness.[9] You were admitted to hospital with COVID-19 on 26 December 2023. Blood tests revealed a severe thrombocytopenia (decreased level of platelets), necessitating a platelet transfusion and treatment with steroids.
[9]Letter of Dr Aedo-Lopez of 27 February 2024.
A spinal MRI conducted on 13 January 2024, revealed ‘innumerable metastases throughout the cervical, thoracic, and lumbar spine’.[10] You received radiotherapy between 17 and 23 January 2024 to decrease the risk of fractures and pain associated with these metastases.
[10]Ibid 1.
A further PET scan conducted on 19 February 2024 showed a persisting mild heterogeneous bone uptake, with mild increased activity in several bony sites. At that time, Dr Aedo-Lopez assessed that your condition was still stable, hence your existing treatment was continued.
In her letter of 27 February 2024, Dr Aedo-Lopez considered your prognosis to be the same as previously expressed, save that you are now a further three months progressed into the evolution of your cancer.
In her report, Ms Cameron summarised your demanding medication and appointment regime as a result of your complex medical history, especially since your cancer diagnosis. You suffer ongoing pain and problems with your mobility. She opined that your deteriorating physical health has further aggravated your existing mental health conditions.
Objective gravity of your offending
Your offending involved numerous acts of dishonesty over a period of approximately five years, and each of those acts represented a gross breach of trust and of the professional ethics that bound you as a lawyer. The amount you stole was substantial. Ms Morgan pointed to a number of features of your offending which distinguished it from some more serious examples of offending of this type. In my view, none of those matters took away from the obvious conclusion that, whilst more serious examples of any crime may always be posited, your offending was exceedingly serious. The authorities relied upon by the prosecutor, Mr Porceddu, clearly demonstrate that fact.
Your moral culpability
Ms Morgan submitted that your moral culpability for your offending is reduced due to the extraordinary combination of circumstances in your case. The gambling disorder which was the driver for your offending developed as a psychological coping mechanism following the unimaginable trauma you experienced in 2010 with the murder of your step-children and the events which followed. The PTSD and MDD from which you now suffer were both active throughout your offending.
Ms Morgan relied upon the contents of the report of Ms Cameron, especially paragraphs 102 to 106, in support of the contention that your moral culpability is reduced. She did not submit that your ability to understand the wrongfulness of your actions was ‘completely impaired’.[11] However, in her submission, some reduction in moral culpability should be afforded to you, and a resulting moderation in sentence.
[11]Defence outline [23].
Mr Porceddu submitted that the gambling addiction which was at the heart of your offending should not be afforded mitigatory weight, in light of the authorities in the area. He conceded, however, that your addiction can be taken into account to demonstrate the absence in your case of an aggravating motive such as pure greed or a desire to fund some other criminal activity.
In my view, for the reasons advanced by Ms Morgan, your moral culpability for your offending is reduced to some extent. I accept that your crimes occurred when you were in the grip of a serious gambling addiction which only arose in the aftermath of the truly tragic events of 2010, and their devastating effect upon you. Furthermore, your thinking was affected by the psychological conditions from which you suffered.
Having said that, there are some aspects of what was said by Ms Cameron which I do not accept. I refer, in particular, to the contents of paragraph 105 of her report, which I set out earlier. At the time of your offending, you were an experienced solicitor who had a clear understanding of the importance of your role, and of the duty you owed to your clients and to the profession to act honestly in your professional dealings. Disturbed though you were at the time, and affected though you were by the gambling addiction which had overtaken you, I do not accept that you had any difficulty understanding, throughout the long years of your offending, how seriously wrong your behaviour was. Your decision-making and thinking skills were not so impaired as to obscure from your view the obvious criminality of your offending, and the serious consequences that your offending may cause for your clients.
Notwithstanding the reduction in your moral culpability which you will be accorded, your moral culpability for your offending remains significant.
General deterrence
For the same reasons she relied upon as justifying a reduction in in moral culpability, as well as the considerations flowing from the terminal illness from which you suffer, Ms Morgan submitted that general deterrence should be moderated as a sentencing consideration. She submitted that you are not an appropriate vehicle for a sentence with a general deterrence component to it.
The prosecution maintained that general deterrence is the principal sentencing factor in your case, notwithstanding all of the circumstances of your case including the illness from which you suffer.
I believe that general deterrence should play a much reduced role in your sentence than it otherwise would. You serious offending occurred in very particular circumstances which would warrant some moderation in general deterrence.
Even more important, however, is your current plight as a result of the illness with which you were struck down in the aftermath of your offending. Before you received that devastating diagnosis in August 2022, your life had reached a very low ebb. Your career, your financial security, and your reputation were destroyed. You were homeless and estranged from your children. Your fall from grace had been complete. And then you received the diagnosis of an incurable illness.
The treatment you have received and the progression of the illness have further reduced the quality of your life. Furthermore, I accept that your life expectancy is severely reduced.
In all of the circumstances, I do not think you are an appropriate vehicle for a sentence designed to demonstrate to others in the community that strong punishment will be the inevitable response of the court to offending such as yours.
Specific deterrence
Ms Morgan submitted that specific deterrence, that is, the need to deter you from further offending, should not loom large in your case. Mr Porceddu did not take issue with that proposition. In the particular circumstances of this case, I do not consider specific deterrence to be of great importance.
Your plea of guilty, admissions and remorse
Prior to your arrest for these offences, you made no effort to renew your practising certificate for the period 1 July 2020 to 30 June 2021. You also have not opposed the removal of your name from the Supreme Court roll of persons admitted to the legal profession. When interviewed by police on 9 February 2021, you admitted to the offending the subject of Charge 2, and admitted the likelihood of further offending. Whilst it might be observed that you were less than fully frank, you did cooperate with the police, which is to your credit.
Importantly, you indicated your intention to plead guilty to these charges at an early stage. I take into account, in your favour, your early plea of guilty, which entitles you to the utilitarian benefit flowing from the plea. In addition, in this case, your plea of guilty is indicative of your full acceptance of responsibility, and of the remorse which I am satisfied you feel in respect of your offending. Your sentence must be reduced accordingly.
Verdins considerations
Ms Morgan submitted that all six limbs set out in R v Verdins & Ors are enlivened in your case. [12] I have already dealt with your moral culpability, and the matters of general and specific deterrence (limbs one, three and four). Ms Morgan submitted that the second limb of Verdins is enlivened by the severe mental health issues from which you suffer. In addition, she submitted, in respect of the contents of the letter provided by Dr Aedo-Lopez on 27 February 2024, that whilst there is no change in your prognosis, the new material demonstrates the complexity of your medical condition, the number of interventions required in the short period of time since the last day of the plea hearing, and the increased desirability of your remaining under the care of your current treating team. She submitted that your medical condition is a powerful factor in mitigation, which bears upon the type of sentence to be imposed.
[12](2007) 16 VR 269 (‘Verdins’).
Ms Morgan relied upon the evidence of Ms Cameron in support of a contention that both the fifth and sixth limbs also have application. In respect of limb five, she submitted that the cancer diagnosis you have received and the resultant effects of that diagnosis further exacerbate the extent to which a prison sentence would be more onerous for you than for someone not suffering from your conditions. As for the final limb, Ms Morgan submitted that there is a clear and serious risk that imprisonment would have a significant adverse impact on your mental health.
I am satisfied that all six limbs of Verdins have some application in your case.
Current sentencing practices
I am required to have regard, in sentencing you, to current sentencing practices. To assist me in that regard, the prosecution provided a table of comparative cases, most of which concerned legal practitioners sentenced for stealing money from their clients. I have had regard to the decisions contained in that table, to sentencing practices more generally, and of course to the applicable sentencing principles.
I make the observation that each of the cases referred to in the table involved its own circumstances of offending and matters personal to the offender, and none of the cases was identical to this case. It is important to remember that sentences passed in other cases are not precedents to be applied or distinguished in the present case, but may provide assistance as a yardstick only.
The cases illustrate that in almost all cases of substantial theft committed by legal practitioners, significant terms of imprisonment are imposed.
The significance of you cancer diagnosis and reduced life expectancy
Interestingly, the cases concerning the relevance of a diagnosis of an incurable illness to sentence have generally been cases where the diagnosis has followed sentence and has been the subject of an appeal against sentence, on the basis of fresh evidence. In a number of those cases, the Court of Appeal has taken the merciful course of varying the non-parole period, and passing a new non-parole period with the effect of making the offender immediately eligible for parole.
In Cavanagh v The Queen; Rekhviashvili v The Queen,[13] the Court considered a case in which the applicant, Cavanagh, had been convicted of trafficking a large commercial quantity of methylamphetamine and sentenced to imprisonment for seven years with a non-parole period of three years. Fresh evidence accepted by the Court showed that the applicant had been suffering from undiagnosed bowel cancer at the time of sentence. He had a diagnosis of metastatic bowel cancer with a reduced life expectancy. The Court noted that the principles governing the relevance of illness to the sentencing process had been stated by King CJ in R v Smith as follows:
The state of health of an offender is always relevant to the consideration of the appropriate sentence for the offender. The courts, however, must be cautious as to the influence which they allow this factor to have upon the sentencing process. Ill health cannot be allowed to become a licence to commit crime, nor can offenders generally expect to escape punishment because of the condition of their health. It is the responsibility of the Correctional Services authorities to provide appropriate care and treatment for sick prisoners. Generally speaking ill health will be a factor tending to mitigate punishment only when it appears that imprisonment will be a greater burden on the offender by reason of his state of health or when there is a serious risk of imprisonment having a gravely adverse effect on the offender’s health.[14]
[13][2016] VSCA 305 (‘Cavanagh’).
[14](1987) 44 SASR 587, 589.
The Court considered that in the case under consideration, the burden of the applicant’s imprisonment would be materially affected by his cancer. Furthermore, his imprisonment would affect his ongoing prospects of obtaining optimal medical treatment. In addition, the Court held that the applicant’s prognosis ‘effectively removes the need to address the long-term risk of future offending by way of specific deterrence and renders him an inappropriate vehicle for general deterrence insofar as his non-parole period is concerned.’[15]
[15]Cavanagh (n 13) [122].
I am satisfied that imprisonment would be a greater burden on you than would otherwise be the case because of your illness. It is clear to me that life is currently extremely difficult for you, and that your quality of life is poor. Were you to be incarcerated, things would be all the more difficult.
Some time was devoted during the plea hearing to the question whether imprisonment would affect the quality of the medical care you would receive for your serious illness. I am not satisfied in the circumstances that you would be denied all reasonable care for your condition. Having said that, your imprisonment would require the transfer of your care to a different treating team. I accept the evidence of Dr Aedo-Lopez that maintaining your treatment in the community with your current treating team would be the best thing for you. Events which have transpired since the last day of the plea hearing have fortified me in that view.
Whether a community correction order would be open in your case
Your counsel submitted that your case is a unique and tragic one in which all of the sentencing purposes can be satisfied by the making of a community correction order (‘CCO’). She proposed a requirement that you engage in psychological and gambling treatment, and also community work, which would accommodate the need for denunciation and punishment.
Mr Porceddu, for the prosecution, submitted that a CCO, even with a term of imprisonment of the duration permissible under the legislation (12 months),[16] would not be an appropriate disposition in your case, because it would be insufficient to satisfy the sentencing requirements of just punishment, denunciation and general deterrence. He submitted that whilst you might be willing to perform unpaid community work, you would in reality not be well enough to carry out any work. In the absence of a component of unpaid community work, a CCO would not have the punitive effect necessary for the circumstances of this case.
[16]Sentencing Act 1991, s 44(1).
With great respect to Mr Porceddu, whose submissions on sentence could by no means be described as unreasonable, I think he may have understated the extent to which a CCO, even without an unpaid community work condition, can satisfy the sentencing need of just punishment. The guideline judgment of the Court of Appeal in Boulton v The Queen (‘Boulton’),[17] and the cases that followed it, make it plain that a CCO can achieve all of the purposes of sentencing described in s 5(1) of the Sentencing Act 1991 (‘the Act’). Specifically, in Boulton, the Court set out in paragraphs 91 to 98 the many ways in which a CCO can be punitive. None of these concerned a condition requiring the performance of unpaid community work.
[17](2014) 46 VR 308 (‘Boulton’). And see, for example, Cole (a pseudonym) v The Queen [2015] VSCA 44 [22].
The Court went on to state:
It follows from what we have said that a CCO may be suitable even in cases of relatively serious offences which might previously have attracted a medium term of imprisonment (such as, for example, aggravated burglary, intentionally causing serious injury, some forms of sexual offences involving minors, some kinds of rape and some categories of homicide). The sentencing judge may find that, in view of the objective gravity of the conduct and the personal circumstances of the offender, a properly-conditioned CCO of lengthy duration is capable of satisfying the requirements of proportionality, parsimony and just punishment, while affording the best prospects for rehabilitation.[18]
[18]Boulton (n 17) [131].
At the conclusion of the plea hearing, I ordered the provision of a pre-sentence report to assess your suitability for a CCO. A report dated 20 February 2024 was provided to the Court. The report was detailed and helpful, for which I thank the authors. Amongst other things the report set out your current circumstances in some detail.
You were assessed as being a suitable candidate for a CCO. Conditions requiring supervision and the performance of unpaid community work were not recommended, for detailed reasons set out in the report. A mental health treatment and rehabilitation condition was recommended, as was a condition excluding you from the licensed gambling section of any venue.
In written submissions filed on 7 March 2024, Ms Morgan maintained her submission that a condition requiring you to perform unpaid community work would be appropriate notwithstanding the view of the authors of the pre-sentence report.
The place of mercy in the sentencing task
In DPP v Snow,[19] the Court of Appeal stated, in relation to the role of mercy in the sentencing task:
[19][2020] VSCA 67 [80]-[81] (‘Snow’).
As this Court said in Markovic, the proposition that ‘there must always be a place in sentencing for the exercise of mercy’ is of long-standing and high authority, and has been repeatedly affirmed by this Court. Thus, in 1974, in a passage quoted by the sentencing judge, the Court of Criminal Appeal said:
Justice and humanity walk together. Cases frequently occur where a Court is justified in adopting a course which may bear less heavily upon an accused than if he were to receive what is rather harshly expressed as being his just deserts.[20]
Subsequently, in DPP v Miceli, Tadgell JA said that:
An element of mercy has always been regarded, and properly regarded, as running hand in hand with the sentencing discretion.[21]
[20]R v Kane (1974) VR 759, 766.
[21](1997) 94 A Crim R 327, 332.
Later in the judgment, the Court stated, ‘[w]hat is of vital importance about the discretion of mercy, in our view, is that its exercise is an expression or embodiment of the essential humanity of the sentencing process.’[22]
[22]Snow (n 19) [86].
In a number of the decisions concerning the significance of a dire medical prognosis on the sentencing discretion, including Cavanagh, courts have emphasised the role of mercy in the sentencing task.
In my view, the concept of mercy is an important factor in your case, too, a proposition which was relied upon by Ms Morgan and was not challenged by the Crown.
Conclusion
The only purposes for which a sentence may be imposed are those set out in s 5(1) of the Act. In sentencing you, I am required to have regard to all of the matters set out in s 5(2) of the Act.
I acknowledge that on initial assessment of all of the circumstances of your case, bearing in mind the considerable seriousness of your offending, and the purposes to be served by the sentence, including punishing you appropriately for your conduct and strongly denouncing that conduct, it may seem that your crimes could only properly be met with a significant term of imprisonment.
As I said at the outset, in ordinary circumstances, you could have expected to receive a substantial term of imprisonment. As I also said, however, and as I have justified throughout these reasons, the circumstances of your case are far from ordinary. Ms Morgan described your case as a unique and tragic one. I agree.
You are a person of previously excellent character, who was exposed through absolutely no fault of your own to the unthinkable trauma of your step-children being brutally murdered, and then being wrongly and publicly blamed by the perpetrator. In the aftermath of this event, further revelations occurred which compounded your shock, grief and guilt. Your development of PTSD and MDD in the context of your worsening mental state is unsurprising. Your later descent into the gambling addiction which was the driver of your offending occurred in direct response to the ongoing anguish and despair you felt.
Even these things, without more, would not, to my mind, have saved you from the inevitability of a term of imprisonment.
In your case, however, having already suffered a complete fall from the comfortable, stable, and respected position of your previous life, you were met with the shocking diagnosis of terminal cancer in 2022, and now face an uncertain and difficult future for the time remaining to you.
Having considered all of the particular circumstances of your case, and bearing in mind the prominent role which the concept of mercy should, in my view, play in my exercise of the sentencing discretion on this occasion, I consider that the applicable sentencing purposes can be achieved through the making of a community correction order, with appropriate conditions.
Sentence
Yasemin Ozer, on the six charges of theft to which you have pleaded guilty, you are convicted and made subject to a community correction order for a period of three years from today.
The CCO will have the usual conditions, as well as the following special conditions that:
1. you must attend and undergo mental health assessment and treatment as directed by the Secretary to the Department of Justice (‘the Secretary’) or the authorised delegate of the Secretary;
2. you must attend and undergo any gambling treatment program as directed by the Secretary or the authorised delegate of the Secretary;
3. you must not engage in any form of gambling, whether on an online platform or by any other means; and
4. you must not enter or remain in any gambling premises or the licensed gambling section of any venue for the duration of the order.
I order pursuant to s 86 of the Sentencing Act 1991 that you pay the sum of $501,635.94 to the Victorian Legal Services Board – Fidelity Fund. I note that you did not oppose the making of this order.
I order, on the Court’s own motion, that your name and other particulars be removed from the Supreme Court roll of Australian lawyers, pursuant to s 23(1)(a) of Schedule 1 of the Legal Profession Uniform Law Application Act 2014. I note that you did not oppose the making of this order.
I indicate pursuant to s 6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to be imprisoned for 5 years with a non-parole period of 2 years.
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