Director of Public Prosecutions v Razos
[2024] VCC 1077
•19 July 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-22-00594
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ATHENA RAZOS |
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JUDGE: | HIS HONOUR JUDGE KELLY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 4 December 2023; 13 June 2024 | |
DATE OF SENTENCE: | 19 July 2024 | |
CASE MAY BE CITED AS: | DPP v Razos | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1077 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Obtain property by deception — Obtain financial advantage by deception — Continuing Criminal Enterprise — Law Clerk — High moral culpability — Verdins principles — Extra-curial punishment — Prior criminal history – Deterrence – Denunciation
Legislation Cited: Crimes Act 1958 (Vic); Sentencing Act 1991 (Vic); Legal Profession Uniform Law Application Act 2014 (Vic).
Cases Cited:The Queen v Ligiris [2009] VCC 0492; R v Verdins (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Director of Public Prosecution v Munn [2019] VSCA 267; R v Nikodjevic [2004] VSCA 222; Day v The Queen [2011] VSCA 243; The Queen v Roussety [2008] VSCA 259; R v Merrett (2007) 14 VR 392; DPP v Fucile [2013] VSCA 312; R v Talia [2009] VSCA 260; R v Zerafa (2013) 235 A Crim R 265; DPP v Bulfin [1998] 4 VR 114; Kelly v The Queen [2021] VSCA 216; Kepkey v The Queen [2021] VSCA 202; Apted v The Queen [2021] VSCA 151; Daniel Shiel v The Queen (2017) 271 A Crim R 146; Dyason v The Queen [2015] VSCA 120.
Sentence: 5 years 3 months with a non-parole period of 2 years 9 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms J. Ellis | Office of Public Prosecutions |
| For the Accused | Dr G. Boas | Lewenberg & Lewenberg Solicitors |
HIS HONOUR:
Introduction
1Athena Razos, you have pleaded guilty to five charges of Obtaining Property by Deception;[1] and eleven charges of Obtaining Financial Advantage by Deception.[2] Charges 1, 2, 3, 4, 5, 6, 7, 8, 11, and 12 are all rolled up charges of multiple instances of offending.
[1] Crimes Act 1958 (Vic), s 81.
[2] Ibid, s 82.
2The maximum penalty for Obtaining Property by Deception is 10 years imprisonment. The maximum penalty for Obtaining Financial Advantage by Deception is 10 years imprisonment.
3The Continuing Criminal Enterprise provisions in the Sentencing Act 1991 apply to charges 9, 10, 13, 14, 15 and 16.[3] Accordingly, you are liable to a maximum term of imprisonment twice the length of the standard maximum penalty prescribed for the offences, namely 20 years in relation to each of these charges.
[3] Ss 6H, 6I.
Circumstances of Offending
4Between 2013 and October 2017 you were employed by the law firm Moray and Agnew (‘The Firm’) as a property paralegal. Your day-to-day duties involved overseeing and performing property conveyancing, which included preparing the necessary documents to complete property settlements and arranging settlement cheques for the distribution of funds at settlement.
5Between 23 April 2013 and 20 July 2017, you made or organised for 118 unlawful payments totalling $1,568,197.48 from a trust account belonging to Moray and Agnew Lawyers for your own financial benefit.
6You used false documents consisting of bogus Account Requisition’s requesting payment in connection with a client’s property sale or purchase accompanied by one or more of the following documents to legitimise the requested payment:
· Statement of Adjustments;
· Trust Statement & Trust Ledger;
· Matter Ledger Report;
· An email from or to the client purporting to authorise payment or confirming verbal instructions and/or an invoice from a third party.
7You nominated business names for the trust payments such as Sales Solutions, Professional/s Sale Solutions and Sales Solutions Professionals, all of which were unregistered trading names linked to your business as a sole trader, ‘Athena Zissiadis’ trading as ‘Athena Zissiadis Sales Solutions Professional’ (ABN 17 364 142 006). You were at no time authorised to deposit trust funds into this account.
8A large portion of the unauthorised third-party payments funded a block of land in Box Hill South, construction of a dwelling on that block and rental payments to your landlord.
9I do not propose to go through each episode of dishonesty in each rolled up charge, but instead provide two examples illustrative of your offending:
· On or about the 21st of January 2015, you presented an Account Requisition form seeking payment from the firm’s trust bank account which contained false or misleading details about a client of the firm, and a doctored email purporting to represent a client authorisation to transfer the funds. The requisition was endorsed and a trust cheque drawn up, the cheque was cashed and the funds transferred into an account you controlled (Incident 28, Charge 5: Obtain Financial Advantage by Deception);
· On or about the 1st of February 2017, you presented an Account Requisition which contained false and misleading information you claimed was a deposit in exchange for a bank guarantee for a Moray and Agnew client. The requisition was endorsed and a cheque prepared in the amount of $13,789.83 which was later presented to Bendigo Bank and deposited the funds into your bank account (Incident 100, Charge 11: Obtain Property by Deception).
10On 21 occasions, you moved trust funds from unrelated files into the accounts of files whose funds you had depleted, ensuring those files held sufficient funds for disbursement upon settlement. You did this to avoid detection and to conceal the unauthorised dissipation of trust monies. You have not been charged with any offences relating to this movement of funds between trust ledger accounts.
11Your offending was discovered in 2017 and your employment was terminated by the Law Practice on the 6th of October 2017 for serious misconduct relating to a cheque drawn against the general trust account and deposited into a bank account in the name of your husband. An internal enquiry was conducted.
12On the 6th of November 2017, paralegals identified a missing deposit of $35,900.00 relating to a client. On the same day, a text message exchange occurred between one of the firm’s paralegals and you asking if you recalled where the deposit was. You responded advising that the deposit was with the agent who was aware of settlement and would be transferring the funds to the firm at settlement.
13The next day, a payment of $35,900.00 was received in the general trust account of the law practice. The payment was traced to a company which had you and your husband as the directors and shareholders. Further enquiries concluded the missing deposit had been transferred to your trust ledger for the purchase of a Box Hill South property in your name, the funds having been drawn down in a series of unauthorised transactions.
14On the 4th of December 2017, the Law Practice notified the Victorian Legal Services Board (‘The Board’) of your conduct and commenced a wider internal review of their conveyancing files. On the 25th of September 2018, the firm engaged HLB Mann Judd to perform a review of source documentation for 1,283 open property files.
15On the 7th of September 2018, the Board instructed Mr Gary Setter of Corporate Risk Management Solutions to carry out a trust records investigation. Mr Setter produced a report on the 9th of January 2019 stating that you had misappropriated $1,051,337.00 from the Law Practice.
16On the 25th of February 2019, the Board instructed accounting firm Baker and Tilley to conduct a further trust records investigation. They were engaged to provide a comprehensive report which included an exhaustive trace of all relevant transactions. They concluded on the 31st of January 2020 that you had misappropriated a total sum of $1,569,195.48.
Personal Circumstances of the Offender
17Your personal history was helpfully summarised in the psychological report of Mr Patrick Newton dated the 26th of February 2024.[4]
[4] Report of Mr Patrick Newton dated 26 February 2024 (‘Newton Report’).
18You were born in Melbourne and grew up in East Hawthorn. You have one younger brother from whom you are now largely estranged. You described having a positive childhood in a happy family with lots of cousins and friends. Your father worked as a carpenter and your mother made fur coats. You told Mr Newton that your brother had albinism and you largely acted as his carer. On occasions you would intervene when he was bullied at school. You described these tasks as placing a lot of pressure on you and preventing you from enjoying normal childhood activities.
19You attended Auburn Primary School and reported having some learning problems but overall being a good student. You did not repeat any grades or suffer any significant difficulties. You attended John Gardiner High School for years 6 – 9 followed by Vauclose High School for Years 9 – 11. You said there was some teasing, but you were not subjected to bullying or harassment.
20You undertook a business diploma at RMIT and worked for many years as a secretary, moving to work as a paralegal in a property team at a law firm in 2006. You have had no paid employment since being charged with these offences.
21You met your first husband at age 21 and were together for about 18 years – you had one son together. You described your first marriage as violent and horrific and said you left when you suffered significant injuries after a beating.
22I note that you relied on this feature of your history when sentenced by White J in 2009.[5] He noted that the records from the Epworth Hospital relating to your consultation with them on 24 March 2003 where you claimed to have been beaten by your husband revealed no organic basis for your complaints of left sided numbness to your face, arm, hand and leg. You were prescribed Panadol and physiotherapy. The police attended your home on 4 February 2003 in response to an incident but observed no injuries to you. Police witnessed you screaming at your husband over the fence whilst he walked around an adjacent oval
[5] The Queen v Ligiris [2009] VCC 0492 (‘Ligiris’).
23You commenced your relationship with your current husband in 2009 and married in 2011. You describe him as your closest support and friend and said he had no awareness of your offending.
Defence Submissions
24Dr Boas on your behalf conceded at the outset that your offending involves a large amount of money over a lengthy time. He submitted that your offending takes place in the context of finding yourself trapped in spiralling debt associated with the purchase of your Box Hill property. He submitted that you experienced significant health issues in 2013 and your husband became unable to work in 2014 due to a serious knee injury. I pause to note that the offending here starts well before your purchase of the Box Hill block.
25He submitted that the fact that you intended to and did pay back the funds is relevant to an assessment of your moral culpability and the objective gravity of your offending. I am informed that you paid back $1,103,157 between November 2017 and October 2018. This was done prior to any criminal charges being laid, although obviously after your employer became aware of the scale of your dishonesty.
26Dr Boas told me that you have entered into a deed of agreement with your victim for the repayment of an amount close to the outstanding balance owed. This, he said, is a considerable matter in mitigation, demonstrating your desire to rehabilitate yourself and make good the damage you have done.
27He said that your rehabilitation has been hampered by your age, notoriety and your inability to work in your chosen field. However, your prospects are not bleak: you have been trying desperately to address the underlying causes of your offending. You have attempted to access electroconvulsive therapy, a regime not trialled previously.
28He reminded me that this offending began 11 years before your plea, and that the period between your offending coming to light and the eventual plea date justifies a mitigation in recognition of the effect this delay has had on your mental health and the rehabilitation you have apparently undergone since your crimes were unearthed.
29He submitted that Mr Newton’s report and his subsequent oral evidence demonstrate that limbs 1, 3, 4, 5 and 6 of Verdins are enlivened in your case,[6] such that your moral culpability is reduced, deterrence has a lesser role to play in sentencing you and you will have an abnormally burdensome time in prison.
[6] R v Verdins (2007) 16 VR 269, 276 [32] (‘Verdins’).
30He said that you have suffered significant extra-curial punishment in the form of disqualification from legal practice in 2020 which barred you from obtaining employment in your chosen field and public opprobrium from the media reporting of your case.[7] It was submitted that this extra-curial punishment justifies a further mitigation of your sentence.
[7] Victorian Legal Services Board v Razos (Legal Practice) (Corrected) [2020] VCAT 1304.
31He submitted – and it was accepted by the Prosecution – that your guilty pleas were entered early, during the Covid pandemic, justifying a further Worboyes discount.[8]
[8] Worboyes v The Queen (2021) 96 MVR 344, 356-357, [39] (‘Worboyes’).
32Your husband Mr Alex Razos provided a character reference and writes that you have known one other since the 1960’s where you lived in the same neighbourhood. He writes that you have always provided significant assistance in looking after his parents and your own family, including during a period of 2 years where Mr Razos was out of work. He said you have always suffered from mental health issues which were only exacerbated between the years of 2009 and 2017 where you had to contend with issues relating to your ex-husband. He also explained the additional burdens you have suffered since being charged with these offences and expressed concern about your ability to get through to the other side of these events.
33I pause to note here that your relationship with your first husband ended in early 2003. He discovered then that you had forged his signature and transferred title in the matrimonial property to your name exclusively. Thereafter, as noted elsewhere in these remarks, you forged his signature and depleted his superannuation account.
34I am unsure what he means when he refers to the issues relating to your first husband that you were apparently processing between 2009 and 2017, unless it is the criminal charges laid against you for the myriad dishonesties you visited upon him.
35Ms Polimia Razos also provided a reference. She is your mother in law. She writes that you have cared for her since 2009. She said she was shocked to hear of your offending, but upon reflection she felt your family placed too much pressure on you to provide for them, and your kindness meant you were unable to say no. She explained the extent of the help you provided when her husband was in the hospital and after his death, which included cooking for her and taking her to social outings despite your apparent tiredness.
36Regarding the ultimate disposition, Dr Boas conceded that a term of gaol is inevitable.
Prosecution Submissions
37Ms Ellis on behalf of the Prosecution said your offending was sophisticated; you drew upon your experience in conveyancing law and your employer’s internal protocols and work practices to lay a false trail and evade detection. Ms Ellis also emphasised that your offending was only possible because of the trust and confidence your employer reposed in you.
38Your motivation was a desire to maintain an opulent lifestyle, to purchase properties, to spend lavishly and without restraint. This motivation, it was submitted, increases the objective gravity of your conduct.
39The Prosecution accepted that your plea of guilty entitles you to a degree of mitigation, however it was submitted that the Covid backlog has long since been cleared and thus any Worboyes discount should be slight.
40She submitted that, whilst your disqualification under the Legal Profession Uniform Law does constitute extra curial punishment, this disqualification is a natural and direct consequence of your offending and as such should not entitle you to any mitigation in sentence.[9]
[9] Legal Profession Uniform Law Application Act 2014 (Vic).
41She submitted that the period of 10 months between the request for an initial interview in 2020 and charges being laid in 2021 entitles you to a slight mitigation for this gap. However, Ms Ellis submitted that any delay following your committal to stand trial is not the fault of the prosecution, and therefore ought not to mitigate your sentence.
42She submitted that there is an insufficient connection between the underlying mental impairments – either at the time of offending or now – to enliven limbs 1, 3 or 4 of Verdins, but concedes that limbs 5 and 6 are enlivened.
43Ms Ellis concluded that an immediate term of imprisonment comprising a head sentence with a non-parole period is appropriate. The Continuing Criminal Enterprise charges require a degree of cumulation, and increased individual sentences on charges 9, 14 and 16 due to the increased magnitude of the sums misappropriated.
Gravity of offending and moral culpability.
44Your moral culpability for this offending is high. Your offending involved over 100 total payments, involving hundreds of individual decisions and discrete acts on your part to facilitate these transfers and to hide them. You created false documents, gulled fellow employees to endorse false account requisitions, deposited cheques created through deceptions you crafted, and moved money between bank accounts. It was protracted, ambitious and deeply exploitative of your employer’s trust. It was also relatively sophisticated.
45Your behaviour grew bolder and more ambitious as it went on. In a table helpfully provided by the prosecution, the totality of the misappropriations were summarised as follows:
· 2013: $74,436.97
· 2014: $165,531.95
· 2015: $183,663.85
· 2016: $590,332.38
· 2017: $555,232.33
46Although the amount misappropriated in 2017 shows a decline in quantum from the preceding year, your offending was detected by the 20th of July 2017. This figure, viewed in this light, demonstrates that you were on track in 2017 to eclipse your previous annual totals. There is no indication that you would have stopped voluntarily, and that argument was never made.
47Your offending persevered for over four years. It was not merely a lapse in judgement. You had years to contemplate the consequences of detection, years to contemplate how enormous your breach of trust was, years to consider the potential of criminal sanctions, public opprobrium and professional disqualification because you had offended against a previous employer, had been detected, had been criminally charged and convicted in court. You had a very good idea of how this was likely to end, but your criminality grew more ambitious with each year.
48This is the third time you have been found guilty of betraying the trust of your employer and stealing from them. In 2009 you were sentenced by White J for seven counts of making a false document, nine counts of obtaining a financial advantage by deception, two counts of obtaining property by deception and two counts of attempting to obtain property by deception for a total of 27 charges.[10]
[10] Ligiris (n 5).
49That offending occurred between 1992 and 2003. You forged your husband’s signature and transferred the matrimonial property into your own name in 1992. He discovered what you had done in 2003 when he was forced to vacate the property. You were employed by solicitors at the time you lodged the bogus transfer and knew through your work how to prepare the relevant documents and how to lodge them with the Titles office. You forged your husband’s signature on a number of bank documents to enable you to obtain loans. You also forged a solicitor’s signature. You fraudulently accessed your husband’s superannuation account and depleted it. You forged his signature in order to access his account. You forged a police officer’s signature. You submitted a false affidavit to this court in 2001. You deceived your then business partner and used her credit card without her knowledge. You wrote a number of bogus cheques in 2003.
50White J noted that, “your offending occurred over a lengthy period of time. Such offending involved planned and calculated dishonesty with multiple victims.”[11] Indeed it did.
[11] Ligiris (n 5).
51On 6 August 2007 you were convicted of 61 offences of Obtaining Property by Deception and 141 offences of Theft committed in 2005. These were petty cash thefts from your employer, Freehills Solicitors. You stole $16,346.00 from them.
52In 2000 you appeared in the Dandenong Magistrates’ Court when you were convicted of 17 counts of obtaining property by deception, one count of making a false document with intent and one count of using a false document with intent.
Plea of guilty
53It was conceded that your pleas were entered early, entitling you to a discount reflecting the saving to the administration of justice. You indicated an intention to plead guilty in early 2022. I am prepared to accept that your pleas attract an additional discount in accordance with the principles in Worboyes,[12] albeit a modest one.
[12] Worboyes (n 8).
Verdins
54Dr Boas submitted that limbs 1, 3, 4, 5 and 6 of Verdins were enlivened in your case. Dr Boas relied upon Mr Patrick Newton’s report dated 26th of February 2024 and Mr Newton’s viva voce evidence taken on the 13th of June 2024.
55Ms Ellis on behalf of the Prosecution conceded that limbs 5 and 6 of Verdins were enlivened, and I have adjusted your sentence accordingly.
56However, Ms Ellis submitted Mr Newton’s report failed to sufficiently establish the necessary causal relationship between your mental impairments and your offending such that limb 1 is enlivened. It was submitted the sophistication and duration of your offending and the ruses deployed to evade detection undermine the contention that your judgement was impaired.
57Mr Newton had four consultations with you. He detailed a long history of mental illness in your family and that you suffered bouts of low energy, depleted depression and post-natal depression.[13] More recently, you have been treated by psychiatrist Dr Ajit Emmanuel who since 2019 has provided you with medication to assist your depressive symptoms. He has recommended electroconvulsive therapy. He also describes a number of suicide attempts, the first reported instance being in 2017 and then again in 2022 and 2023, the latter resulting in admission to hospital for psychiatric care.
[13] Newton Report (n 4) [21]-[22].
58Mr Newton diagnosed you as having a Major Depressive Disorder and anxious distress.[14] He writes that these disorders generally have a detrimental impact on the reasoning and decision making of those afflicted. Such disorders impair the ability of the sufferer to anticipate the likely consequences of one’s actions and to contemplate and execute alternative courses of action.[15]
[14] Ibid [45].
[15] Ibid [46].
59Mr Newton writes that your cognition would have been impaired making you more likely to reach for opportunistic solutions to your problems whilst being less likely to consider alternative strategies.[16] This opinion was qualified by the concession that it was made without contemporaneous medical records. Your impaired cognition would have had a moderate impact on you and would not have impaired your ability to comprehend the wrongfulness of your conduct.[17] The report makes no mention of when these impairments are likely to have commenced. I was told that your mental health has declined markedly following your arrest for these charges. That makes it difficult to say with precision how impaired your decision-making was at the time of this offending, save to note that it was highly organised, persistent, well-camouflaged and sophisticated. These hallmarks point away from impaired cognition.
[16] Ibid [47].
[17] Ibid.
60Mr Newton was called to give supplementary viva voce evidence at your plea hearing. He clarified that when he refers to the ‘likely’ impacts of your mental illnesses on your offending, he means more likely than not. He confirmed that the absence of contemporaneous medical records did not impede his ultimate diagnosis and opinions, but it qualified his opinions as probable, not certain.
61He said that your impairments would not have affected your ability to understand the wrongfulness of your conduct, but would have slowed your mental processes, affecting your decision making and your ability to evaluate the logical consequences of your actions. He said you would have reached for salient solutions rather than searching for appropriate or efficient solutions to create more long term benefits.
62He conceded that, although there would have been some mental slow down during the time of the offending, he was unable to say how intense the slow down would have been. This, the prosecution says, means that the diagnoses and opinions expressed by Mr Newton do not meet the evidentiary thresholds required to engage limbs 1,3 and 4 of Verdins. The Court of Appeal has stressed that what is required for the enlivening of Verdins is:
…a clear, well-founded expert opinion as to the nature and extent of the offender’s impairment of mental functioning and, so far as it can be assessed, of its likely impact on the offender at the time of the offending and/or in the foreseeable future.[18]
[18] Brown v The Queen (2020) 62 VR 491, 507-508, [61].
63Mr Newton was insistent that your Major Depressive Disorder and anxious distress operated throughout your offending. He also articulated how you would have been affected by these impairments. I am satisfied you were affected in a way that lowers your moral culpability despite the sophistication of your offending. Limb 1 of Verdins is enlivened.
64Mr Newton conceded that the extent of the impairment would have fluctuated in seriousness over time. It is possible there were periods where your mental impairments had a negligible effect on your judgement and capacity to reason. Mr Newton accepted that your impairments had no impact on your ability to comprehend the wrongfulness of your conduct. The mitigatory reduction in your moral culpability is therefore slight.
65Your cognitive impairments at the time of offending justify a slight sensible moderation in the application of general and specific deterrence and your sentence will be adjusted accordingly in line with limbs 3 and 4.
Prospects of rehabilitation
66As to your prospects of rehabilitation, your criminal history demonstrates that being charged and processed has not deterred you. Receiving a partially-suspended gaol term has not deterred you. I was told that you started with Moray and Agnew in late 2008. You appeared in this court before White J on 8 May 2009. You were sentenced to 16 months gaol then, twelve months of which was suspended. You therefore served a four-month gaol sentence in the first year of your employment with Moray and Agnew. How this was kept from them I do not know, but it did not deter you from offending against them, rapaciously and with increasing ambition.
67The Prosecution submitted that your extensive criminal record and lack of positive change means you are unlikely to be deterred from further offending, and your prospects of rehabilitation are guarded.
68Ms Ellis submitted that the sentencing remarks of his Honour Judge White demonstrate that your duplicity is not limited to employers and your inability in the future to obtain work with a law firm would be no bar to further offending.
69Dr Boas characterised your prospects as complex. He emphasised that you have been seeking alternative treatments for your underlying mental health issues such as electroconvulsive therapy. Although you have been unsuccessful in obtaining a place in this treatment program to date, he nevertheless submitted the act of seeking treatment demonstrates your desire to improve your situation
70Dr Boas also raised the fact that between November 2017 and October 2018 you paid back the majority of the money you misappropriated, and you have more recently entered into a deed of agreement to pay back a sum which the victim and regulator agree is appropriate. He submitted this places you in a different position to most who stand to be sentenced for dishonesty crimes and distinguishes your case from that of Munn,[19] for example. He said it demonstrates remorse for your offending and augurs well for your rehabilitation.
[19] Director of Public Prosecution v Munn [2019] VSCA 267.
71I have also had regard to the comments you made to Mr Newton during your psychological assessment with him:
Mrs Razos said that she had taken some funds from her law firm in order to pay the builder. While she understood that this was wrong she rationalised that she would be able to pay it back “when [she] got the occupancy permit”. Indeed, Mrs Razos said that she had subsequently repaid the funds. However, the process of returning the funds raised questions which triggered an investigation by the law firm which uncovered her wrongdoing. This was then referred to the Legal Services Board, leading to her disqualification as a paralegal and a referral to Victoria Police. Mrs Razos commented, “had the house not happened it [the offending] would not have happened” (emphasis added).[20]
[20] Newton Report (n 4) [34].
72As earlier observed, your offending pre-dates the purchase of the Box Hill block. More concerning is your minimisation and rationalising of your conduct to Dr Newton. It falls some way short of expressing contrition and betrays poor insight.
73On balance however, I accept that due to your age, your notoriety and negligible opportunities for financial crime available to you upon your eventual release, your prospects are somewhat better than guarded.
Delay
74Dr Boas submitted that there has been an 11 year gap since the commencement of your offending, and 4 years since you first learned of possible pending criminal charges.
75Unduly long delays which are not the offender’s fault ordinarily attract significant mitigation.[21] Here investigators were tasked with assessing the extent of a complex web of financial crimes which you committed over four years. Such investigations can take considerable time to complete.[22] I accept that years have now passed since you were committed on these charges and these proceedings have been hanging over your head, making you anxious and fearful.
[21] E.g., R v Nikodjevic [2004] VSCA 222, [22].
[22] E.g., Day v The Queen [2011] VSCA 243, [14]; The Queen v Roussety [2008] VSCA 259, [46].
76I accept that your mental health has suffered, and you have undergone in-patient treatment at psychiatric hospitals in the period awaiting sentence.
77Dr Boas submitted that the responsibility for the delay is not as important as its effect on the offender. As President Maxwell said in Merrett:[23]
The relevance of delay lies rather in the effect which the lapse of time – however caused – has on the accused. Delay constitutes “a powerful mitigatory factor”. In particular, it focuses attention on issues of rehabilitation and fairness. (citations omitted).
[23] R v Merrett (2007) 14 VR 392, 400 [35].
78I am therefore prepared to reduce your sentence slightly to acknowledge the stress and anxiety you have endured in the years since you were put on notice that you would likely be charged with the offences you committed at Moray and Agnew. You were well aware from that point if not well before it that you were destined to serve a prison sentence. As to your rehabilitation in that period, there is not much beyond your payment to your victims and your pursuit of alternative treatment regimes that indicates any capacity or appetite for change.
Extra-curial Punishment
79Dr Boas submitted that you have suffered extra-curial punishment due to your expulsion from your profession and the intense media opprobrium to which you have been exposed. You have been unable to work since your employment was terminated on 6 October 2017 and you were disqualified in 2020 from being employed in legal practices. He submitted that it was very unlikely that your prospects of employment would recover. He referred me to the cases of DPP v Fucile,[24] and R v Talia.[25]
[24] [2013] VSCA 312 (‘Fusile’).
[25] [2009] VSCA 260 (‘Talia’).
80Ms Ellis conceded that your disqualification within the meaning of the Legal Profession Uniform Law (Vic) does constitute extra-curial punishment however submitted that it is not a circumstance of mitigation. She submitted that your disqualification was a consequence that flowed directly from your criminal offending.
81The case of Fucile concerned an appeal where Respondents employed as security officers at Crown Casino had been charged and convicted following a trial by jury of offences relating to an altercation that took place between the respondents and a number of patrons. The Director of Public Prosecutions (‘DPP’) appealed each of the sentences imposed on the basis of manifest inadequacy, alleging that among other factors, the sentencing judge gave too much weight to the extra curial punishment flowing from the loss of their private security licences for a period of 10 years. Thereafter, fresh evidence was given that the Respondents would lose their jobs with the Casino entirely. Their Honours Maxwell P and Weinberg JA said the following:
We are conscious of the fact that there has already been a measure of ‘extra-curial punishment’ in this case. By the time the respondents came to be sentenced, they had already lost their ability to continue as security officers. The ‘fresh evidence’ tendered on the appeal makes it tolerably clear that they will, in the near future, lose their jobs with the Casino.
To some extent, however, these consequences flow directly from their offending. They have shown themselves to lack the self-discipline, and capacity for restraint, that would fit them to continue to be employed in the security industry. They are, in that sense, very much the authors of their own misfortune.[26]
[26] Fucile (n 24) [110]-[111].
82Dr Boas submitted that there was some difficulty resolving the judgment in Fucile with the judgment in Talia.
83The case of Talia concerned a real estate agent who had facilitated the purchase of a property from an elderly man at a significant undervalued price. The appellant was consequently disqualified from working in the real estate industry for a ten-year period. The applicant argued that this disqualification constituted extra-curial punishment and he was entitled to have this factored in as a mitigatory circumstance. Of this, Ashley JA and Weinberg JA observed:[27]
Had it been raised, we think that his Honour would have been entitled to give it some weight as a circumstance of mitigation; but that he was not bound to do so. In our opinion, the disqualification, although an extra-curial penalty, did not necessarily constitute a circumstance of mitigation; and to the extent that it might have been regarded as having that character, it was a circumstance of modest weight. There seems to us to be a distinct difference between a disqualification resulting from criminal conduct in the course of the employment from which the person is disqualified and criminal conduct remote from that employment but having that consequence. Should a teacher who is denied a return to that profession after he or she criminally molests a student be entitled to have the loss of profession treated as a circumstance of mitigation? What of the legal practitioner who misuses trust moneys and is precluded from practice? These situations are different to that which obtains when the offending conduct is remote from the employment from which the offender is initially precluded. In the latter class of case there might be a considerably stronger argument in favour of the incidental loss of employment being treated as a circumstance of mitigation.
...
In the circumstances, if it was necessary to consider the ground, we would not be prepared to conclude that the judge erred in failing to treat the appellant’s loss of occupation as a circumstance of mitigation. That is, he was not bound to so treat it.
[27] Talia (n 25) [28], [30].
84In addition, I have had regard to the case of R v Zerafa, in which Hoeben CJ at CL said:[28]
While I accept the relevance of the extra curial punishment likely to be suffered by the respondent as a mitigating factor, its effect is limited. As with insider trading cases, it must have been anticipated by the respondent that an inevitable consequence, if his offending were discovered and successfully prosecuted, would be that he would be struck off the role of chartered accounts as not being a fit and proper person to pursue that profession. This was a risk which the respondent chose to take when he facilitated the operation of the scheme for 7 years.
[28] (2013) 235 A Crim R 265, 287 [92].
85You have suffered profoundly as a result of your offending. Your fall from grace is complete. You have been unable to obtain paid work since being charged with this offending and you have been the subject of intense media interest. You had worked previously for Freehills and in that job, you had defrauded them. You knew from that time that if you perpetrated another series of frauds much grander in scale on a subsequent credulous employer you risked having your reputation for probity obliterated. That is what has happened. I am unprepared to make any allowance for the extra curial punishment constituted by your disqualification from practice as a law clerk which is a wholly unexceptional and inevitable consequence of your offending. I am however prepared to find that the media opprobrium you have suffered constitutes an extra-curial punishment which should be offset by some slight moderation of your sentence.
Sentencing Principles
1Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:
(a) To punish you in a manner and to an extent which is just in all of the circumstances;
(b) To deter you or others from committing similar offences in future;
(c) To facilitate rehabilitation;
(d) To manifest the denunciation of your conduct;
(e) To protect the community; or
(f) A combination of two or more of these purposes.
86Your offending needs to be condemned. At its heart was a wholesale breach of your employer’s trust and a callous indifference to the fates of your victims. You have not been deterred by previous prison terms. Specific and General Deterrence have central roles to play in the sentence I pass, noting that some sensible moderation is also warranted.
87In DPP v Bulfin, Charles JA observed:
Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme … The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court[29]
[29] [1998] 4 VR 114, 132.
88I have also had regard to the comparable cases provided to me by the prosecution.[30] They have been helpful in gauging current sentencing practices.
[30] Kelly v The Queen [2021] VSCA 216; Kepkey v The Queen [2021] VSCA 202; Apted v The Queen [2021] VSCA 151; Daniel Shiel v The Queen (2017) 271 A Crim R 146; Dyason v The Queen [2015] VSCA 120.
Sentence
89Ms Razos, please stand, I’ll now proceed to sentence.
90On charge 1, Obtaining Property by Deception, you are convicted and sentenced to 8 months gaol.
91On charge 2, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 1 month gaol.
92On charge 3, Obtaining Property by Deception, you are convicted and sentenced to 12 months gaol.
93On charge 4, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 2 months gaol.
94On charge 5, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 8 months gaol.
95On charge 6, Obtaining Property by Deception, you are convicted and sentenced to 12 months gaol.
96On charge 7, Obtaining Property by Deception, you are convicted and sentenced to 9 months gaol.
97On charge 8, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 18 months gaol.
98On charge 9, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 20 months gaol.
99On charge 10, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 9 months gaol.
100On charge 11, Obtaining Property by Deception, you are convicted and sentenced to 8 months gaol.
101On charge 12, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 30 months gaol.
102On charge 13, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 9 months gaol.
103On charge 14, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 18 months gaol.
104On charge 15, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 9 months gaol.
105On charge 16, Obtaining a Financial Advantage by Deception, you are convicted and sentenced to 18 months gaol.
106The sentence on charge 12 will be the base sentence. I order 6 months of charge 8 be cumulated; 6 months of charge 9; 3 months of charge 10; 3 months of charge 13; 6 months of charge 14; 3 months of charge 15 and 6 months of charge 16. This produces a head sentence of 5 years, 3 months. I set a non-parole period of 2 years, 9 months.
107You have served 134 days on pre-sentence detention and I declare this as time served.
108Pursuant to section 6J of the Sentencing Act 1991, I declare that I have sentenced you as a continuing criminal enterprise offender in respect of charges 9, 10, 13, 14, 15 and 16 and I direct that my having so sentenced you be entered into the records of the court.
109Pursuant to section 6AAA Sentencing Act 1991 I declare that, but for your plea of guilty, I would have imposed a sentence of 8 years with a non-parole period of 5.
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