Director of Public Prosecutions v Ritchie
[2019] VCC 2137
•17 December 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-17-02001
CR-18-00291
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMANDA RITCHIE |
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JUDGE: | HER HONOUR JUDGE LAWSON | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 29 May 2019 & 11 June 2019 (Melbourne) | |
DATE OF SENTENCE: | 17 December 2019 | |
CASE MAY BE CITED AS: | DPP v Ritchie | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 2137 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – SENTENCE – obtain financial advantage by deception- theft – breach of trust – immediate term of imprisonment imposed
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr R Pirrie (plea) Mr H Tighe (sentence) | John Cain, Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr TS Lynch | Emma Turnbull & Associates |
HER HONOUR:
1 Amanda Ritchie, on Indictment No G12691998, you have pleaded guilty to one charge of obtaining financial advantage by deception and in relation to Indictment No H12198775, you have pleaded guilty to 34 charges of theft.
2 The maximum penalty for both offences is 10 years' imprisonment and that reflects the seriousness of each of the charges that have been laid.
3 I shall proceed to sentence you on the basis of the prosecution openings that were read at the plea hearing. No issue was taken with the openings.
4 In relation to Indictment No G12691998 the victim is Jennifer Hindson.
5 You were aged 40 at the time offending. The offending occurred on 9 April 2013. At the time you were a partner with the M & S Group working as a financial planner.
6 The context to the offending was that in or about 2010, a decision was made by M & S Accounting Services Pty Ltd to restructure the company. It then became M & S Group which operated as an accounting firm with associated entities including M & S Group Administration; Pinnacle Financial Planning; and Super Check Audits with branches at Kyabram, Shepparton and Echuca.
7 You were working as a financial planner for M & S Accounting from the 2 August 1999 to the 30 June 2011. Following the restructure you continued in that role with the M & S Group from 1 July 2011 to 13 August 2014 at the Shepparton branch.
8 Jennifer Hindson, her late husband, Keith Hindson, and son, Karl Hindson, held a self-managed superannuation fund (SMSF) called Hindson No 2 Superannuation Fund with Macquarie Bank.
9 They held the account for 20 years or more and that was administered by M & S Accounting and Pinnacle Financial Planning.
10 Most dealings regarding accounting and taxation were with managing partner, Michael Watt, who was based in Echuca. The Hindsons had known him for about 25 years. During the period, Mrs Hindson had only dealt with you about two or three times regarding setting up the investment portfolio and some additional changes along the way relating to their self-managed superannuation fund. About three to four times a year Mr Watt would visit Mrs Hindson’s shop to meet with her.
11 The Hindsons signed a Limited Power of Attorney where in effect no transfers were to be made without their consent. Their self-managed superannuation fund statements were received twice a year, normally in January and July.
12 In February 2013, Pinnacle Financial Planning transferred their financial planning licence to the Magnitude Group which was associated with Westpac Bank.
13 In April of 2012, Gino D’Augello retired from Magnitude Group after 24 years and was selling his equity. There was no buyer and subsequently it was determined that interested purchasers were the partners at Shepparton branch namely accountant, Glenn Brewster, and you and Michael Connick, both financial planners.
14 Meetings were held to determine the agreed value of the shares to be sold. It was determined that each partner would purchase one-third of D’Augello’s share for $130,261.91 with settlement to occur on 12 April 2013.
15 Dawes & Vary Pty Ltd, solicitors from Shepparton, prepared the relevant share sale agreement. The purchasers were each individually responsible for sourcing finance to pay for the purchase of their shares.
16 The circumstances of the offending.
17 On Tuesday, 9 April 2013, Emily Davidson, an employee of Magnitude Group, was requested by you to transfer $130,000 from the Hindson No 2 Superannuation Fund to Dawes & Vary Solicitors trust account and to use reference number LCH20131079. She was told by you that this had been authorised by Keith Hindson. That was untrue.
18 On 12 April 2013, the settlement of the transfers of shares occurred.
19 By directing Davidson to transfer the sum of $130,000 from the Hindson No 2 Superannuation account, using the reference LCH20131079 for the purchase of D’Augello’s equity shares without authorisation or loan agreement, you misappropriated the funds treating them as if they were your own and with the intention to permanently deprive the Hindson’s of their property. That is the gravamen of the offending.
20 The Hindsons suffered a loss and damages as a consequence of your misappropriation of their funds in the amount of $144,210, being $130,000 plus $14,210 interest. They have since been reimbursed by the M & S Group. You then became liable to compensate the M & S Group for $144,210. You subsequently have repaid the group $175,000 compensation and therefore you have made full restitution and that will be taken into account in mitigation of your sentence.
21 On the first day of your trial, being 31 January 2019, the matter resolved. You were arraigned and pleaded of guilty on 1 February 2019.
Indictment H1219877522
23 This offending occurred when you were aged between 43 and 45. You were living in Shepparton and were a partner at M & S Group in your capacity as financial planner.
24 Following the restructuring of the M & S Accounting Services Pty Ltd, you continued as a financial planner at M & S Group from 1 July 2011 until 13 August 2014 at the Shepparton office.
25 For an extended period prior to 2015, you acted as an accountant and financial planner for Jennifer Lewis and her late husband who died in 2017. You prepared individual tax returns, annual reports and managed Ms Lewis’s and her deceased husband’s self-managed superannuation fund (“SMSF”) known as the Leo No 5 Superannuation Fund .
26 As part of that role, you opened a direct investment account with the Commonwealth Bank on 19 June 2015 in the name of Mr D J Lewis (the name of the deceased husband of Jennifer Lewis).
27 In October 2015, you were permanently banned by the Australian Securities and Investments Commission (“ASIC”) from providing financial services and financial advice. (That was because of the conduct relating to a charge on an earlier, different indictment.)
28 The Leo No.5 Pty Ltd with the Macquarie Bank Ltd was the trustee for the Leo 5 Superannuation Fund.
29 The offending concerned you, without permission from Ms Lewis, between 4 November 2015 and 28 March 2017, electronically withdrawing cash on 34 occasions from Ms Lewis’s Commonwealth Bank direct investment account (having earlier transferred funds from the superannuation account) and then depositing the moneys straight into your own personal Commonwealth Bank account for your personal use.
30 The moneys were not returned to Ms Lewis. The total amount of cash stolen from Ms Lewis by you following the 34 unauthorised transactions was $350,905.36. The particulars of the 34 transactions are set out in paragraphs 13 through to paragraph 46 of the Crown opening.
31 On 4 August 2017, you were arrested and taken to Shepparton Police Station. You made no admissions during the formal record of interview. You asserted that you had authority to deal with the moneys.
32 This matter resolved on the first day of the trial, being 31 January 2019. You were arraigned on 1 February 2019 and entered pleas of guilty.
33 You do not have any prior criminal history.
34 On 14 June 2017, you were sentenced by His Honour Judge Parrish to a Community Correction Order of 2 years with special conditions, namely you perform 150 hours of unpaid community work and supervision in relation to some dishonesty related offences.
35 The background to His Honour Judge Parrish's sentence is as follows;
36 You were sentenced by him on two separate Indictments.
37 You pleaded guilty to Indictment F13483670A.1 to a charge that on 1 May 2017 you assisted an offender contrary to s.325 of the Crimes Act 1958, which offence carries a maximum penalty of 5 years’ imprisonment.
38 The offending occurred between 30 April 2009 and 31 December 2009. The particulars are that between those dates at Shepparton, you, knowing or believing an unknown principal offender to be guilty of a serious indictable offence, namely theft, without lawful authority or reasonable excuse, did act with the purpose of impeding the apprehension, prosecution, conviction or punishment of the unknown principal offender.
39 On Indictment F13483670B, you pleaded guilty to 2 charges of theft. Charge 1 theft involving stealing property belonging to Helen Bassani on 17 December 2013. On Charge 2, you stole other property belonging to Helen Bassani in or about 3 January 2014 at Shepparton.
40 The entry of the plea of guilty in respect to the first indictment that was dealt with by His Honour Judge Parrish occurred following empanelment of the jury and before the trial proceeded.
41 Following disclosure of further material provided by the Director of Public Prosecutions, and subsequent redrafting of the Indictment such that it included a second charge, you instructed your counsel that you would plead guilty to Charge 2 on the amended indictment.
42 You pleaded guilty in front of the jury and no further evidence was led in respect to Charge 1 of theft, such that the jury was discharged in relation to that charge.
43 This offending occurred in the context of you working as a financial adviser with M & S Accounting.
44 An unauthorised withdrawal was made from a superannuation fund known as the Cox Senior Superannuation Fund to the trust account of Dawes & Vary for settlement of an apartment in Cremorne. The Cremorne property was settled on 8 January 2008 with the payment being made by Dawes & Vary with moneys taken from the Cox Senior Superannuation Fund. This was without authority.
45
You then told a number of lies and carried out actions to cover up the fact that you had not applied for funding from a different source, namely Colonial, and used a false document purporting to have come from Colonial to cover your tracks. The letter asserted that Colonial had transferred the money on
7 January 2008 and that the complaint could be fixed if Lisa Cox signed a deed of settlement. That deed was a sham. You used both the letter and the sham deed knowing they were fictitious. Ultimately an investigation was undertaken that revealed the true source of the moneys used for the settlement.
46 The theft charges the subject of the second indictment involved you without authority withdrawing funds from Helen Bassani’s superannuation account in the sum of $24,944.02 on one occasion and $51,491.61 on another occasion.
47 The two charges were based on the allegation that you caused funds to be taken out of the Bassani superannuation account to cover up the fact that you had not made investment requests requested by other clients, namely Geoff and Joyce Cox.
48 M & S Accounting recompensed the Bassani superannuation fund to the extent of the amount stolen by you.
49 The prosecution made clear that there was no evidence that you had gained any financial advantage by the commission of any of these offences.
50 His Honour Judge Parrish convicted of you of each of the offences the subject of both indictments and sentenced you to a Community Correction Order for a period of 24 months, operational until 13 June 2019. I have taken it into account even though it is not prior criminal history, it is still a matter of some relevance in my sentencing of you today.
51 I will proceed to sentence you in respect to the fresh plea Indictments on the basis that you have no prior convictions. However, I note that the charges of theft numbered 15 to 33 inclusive occurred whilst you were on bail for the indictable matters being dishonesty offences that occurred in the context of your employment for which His Honour Judge Parrish placed you on a Community Correction Order and that breach of bail conditions is an aggravating factor.
52 During the course of the current plea hearing a progress report was received from Community Corrections dated 12 March 2019. The report states that you were compliant and engaged positively with the Community Correction Order. You have successfully completed 150 hours of unpaid community work. You were deemed as assessed as being at a low risk of re-offending by way of assessment via the LS-RNR assessment tool.
53 As was discussed during the plea hearing with Mr Lynch, that assessment must be seen through the prism that you knew that you had committed the further offending, the subject of the current charges, and that information was not disclosed to the relevant Community Correction Officer therefore little weight can be placed upon that assessment.
54 Formulating the appropriate sentence, I have had regard to the gravity of the offending.
55 There was no Victim Impact Statement in respect to the first indictment but common sense dictates that the effect of your offending on those impacted by your significant breach of trust would have been great.
56 The impact of the offending the subject of Indictment H12198775 was set out in Jennifer Lewis's Victim Impact Statement which was read by the prosecutor at the plea hearing. Ms Lewis sets out how your abuse of trust has hurt her and shocked her.
57 Not only was she dealing with the death of her husband, she also had to deal with the gut wrenching process of finding out about your theft of moneys belonging to her and the consequential harm that was caused.
58 She describes her reaction as being soul destroying.
59 Ms Ritchie your offending was brazen, well planned and executed. The offending is a gross breach of the trust reposed in you as a Financial Planner. You abused your situation of trust and exploited relationships that had been built up over many years to obtain funds that you used for your own gain. You were motivated by greed. The offending involving Ms Lewis has the extra aggravating feature that you exploited that relationship after you had been banned from working as a Financial Advisor by ATSIC. The offending was protracted over the period 27 August 2015 to 28 March 2017 and involved a substantial sum of money.
60 Your actions must be condemned and are deserving of condign punishment. Both general deterrence and specific deterrence are significant features of your sentence as well as the protection of the community.
61 Mr Lynch on your behalf acknowledged that the offending was serious.
62
I have had regard to your personal history and background. A report from
Dr Aaron Cunningham, forensic psychologist, confirms that you are 46, you were born in Victoria and raised in Shepparton with a younger sister. Your parents had a good relationship with you and your upbringing was unremarkable.
63 At age 17 your father died from a heart attack. You left the family home to live in Bendigo to study for two years and then returned to Shepparton. You lived in Ballarat for a short while and then returned to Shepparton and have continued to live there ever since with your husband, Christopher. There are two children aged 18 and 16 respectively. Your partner is gainfully employed and you have lived together with him in Shepparton for 20 years.
64 Your mother died in 2018. She had chronic health issues associated with her diabetic condition.
65 You completed Year 12 and then completed a degree in accounting. You have been successfully employed over the years, working for a brewery company, a radio station and finally with M & S Accounting for 15 years. You stopped working with them because of your offending.
66 You took up a franchise with Direct Appliance Rentals and it was submitted that the moneys the subject of thefts were used to prop up that business.
67 Subsequently the business failed and the franchise agreement was terminated.
68 Medically you suffer with asthma and you are being actively investigated for a suspicious focal lesion in the bladder that has been investigated since your time in custody on remand and those investigations are ongoing.
69 Dr Aaron Cunningham, in his report dated 11 March 2019, states the results of his mental state assessment indicate that you suffer adjustment anxiety and depression related to your charges. Psychometric testing indicated significant traits of dependent personality disorder and symptoms of anxiety.
70 Mr Lynch did not seek to rely upon any of the Verdins principles. I have had regard to Dr Cunningham's findings in a general sense only.
71 Dr Cunningham noted in his report you engaged in the offence behaviour to finance your transition into a new career following loss of career because of the offending the subject of the first set of indictments. You rationalised your behaviour to him as being an acceptable practice in your firm. I strongly reject that assertion and consider that you lack real insight into your offending behaviour.
72 In hindsight it is said that you now struggle to understand the reasons for engaging in the offence behaviour.
73 The Leo No.5 Pty Ltd loss was returned by the Commonwealth Bank of Australia (“CBA”), which characterised the losses occurring because of identity theft.
74 The Commonwealth Bank of Australia sought recovery from you and subsequently you have been declared a bankrupt. The Official Trustee in Bankruptcy, represented by the Australian Financial Security Authority, is now the trustee of your bankrupt estate. To date there has not been any funds recovered and the bankrupt estate is for an unquantifiable amount. Part of the estate that vested in the Official Trustee is your previous interest in the home at 21 King Richard Drive, Shepparton, and also a demountable home at Tocumwal.
75 I have not been provided with the statement of bankruptcy affairs so that I am unclear as to what the net value of the estate is and I cannot make any further findings in respect to that. It has been put on your behalf that you are willing to cooperate with the Official Trustee in Bankruptcy to accommodate any transfers of your interests. I have had regard to that but I cannot place any weight on that in mitigation of penalty.
76 I have, however, taken into account that you did enter a deed of settlement with the M & S Group in respect to the matters the subject of the indictments and that your shares in the business were sold and the settlement sum of $175,000 was used to satisfy the moneys owed by you to M & S following the claims against them as a consequence of your criminal actions and I have taken that into account in mitigation.
77 I am very cautious of your prospects of rehabilitation having regard to your lack of insight and willingness to accept responsibility for your offending behaviour.
78 I have however had regard to the mitigating features highlighted on your behalf. The pleas, notwithstanding they were entered at a very late stage just prior to the trial being conducted, still have real utility. The victims of your crimes have been spared the trauma of having to give evidence in respect to your trial. You have spared the State the expense and inconvenience of a trial and therefore you have facilitated justice and the sentence will discounted accordingly.
79 I am very cautious about attributing any remorse on your behalf given your lack of insight, taken together with the late stage of the pleas of guilty. Some limited allowance has been made for remorse but it is not great in the circumstances.
80 I have had regard to sentencing practices and the principles expressed in the cases of DPP v Bufin[1], Dyson v The Queen[2] and I have also had regard to the cases that were referred to during the course of the plea hearing, in particular Director of Public Prosecutions v Kerry Caulfield[3] and Director of Public Prosecutions and Connie Paglianiti[4].
[1] [1998] 4VR 114.
[2] (2015) 251 A Crim R 366.
[3] [2019] VSCA 131.
[4] Unreported decision of Gaynor J, 28 November 2019.
81 Each case must be dealt with upon their particular merits and as discussed in the course of the plea hearing, there are many distinguishing features that set your case apart from those that were provided. I have highlighted those features as I have gone through the matters put on your behalf.
82 In formulating the appropriate sentence, I must impose just punishment. I have had regard to totality and proportionality. Deterrence and the protection of the community are important considerations.
83 Given that the offending the subject of Indictment H12198775 consists of offences that are part of a series of offences of the same or similar character, I consider that an aggregate sentence is appropriate; that is, one sentence will be imposed in respect to those charges.
84 I make the following formal orders. Ms Ritchie, could you please stand?
85 On Indictment G12691998, the one charge of obtaining financial advantage by deception, you will be convicted and sentenced to eighteen months' (18 months) imprisonment.
86 In respect to the second indictment, H12198775, 34 charges of theft, you will be convicted and sentenced to an aggregate term of three years and six months’ imprisonment.
87 I make the following orders for cumulation. I direct that six months of the sentence imposed in respect of the first indictment be cumulative upon the sentence imposed in respect to the second indictment, making a total effective sentence of four years' imprisonment and I direct that you serve two years' imprisonment before being eligible for parole.
88 I make the following declaration of pre‑sentence detention. I direct that 196 days be declared and entered into the records of the court, being time served under this sentence.
89 I make the following s.6AAA declaration. But for your plea of guilty, I would have imposed a term of six years' imprisonment to serve four years' imprisonment.
90 Finally, I make the order for the taking of a forensic sample under s.464ZF(2) of the Crimes Act 1958 and direct that you undergo a forensic procedure for the taking of an intimate sample.
91 I make that order having regard to the circumstances, I consider that such an order is justified and I have noted that it is by consent and I consider the granting of the order is in the public interest.
92 Ms Ritchie, I must tell you that if you do not consent to the taking of a mouth scraping under supervision by an authorised member of the police force, then the sample can be taken by way of blood sample and police may use reasonable force to enable that forensic procedure to be undertaken.
93 That concludes my sentencing remarks. I do not believe there were any other ancillary orders?
94 COUNSEL: No, Your Honour.
95 HER HONOUR: All I have got to do is sign the order for the taking of the forensic sample which I have. That completes the matter. Ms Ritchie can be taken downstairs back into custody and we can adjourn the court.
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