Director of Public Prosecutions v Ritchie
[2017] VCC 780
•14 June 2017 (at Melbourne)
| IN THE COUNTY COURT OF VICTORIA AT WANGARATTA CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-00286
Indictment No. F13483670A.1
and
Case No. CR-17-00368
Indictment No. F13483670B
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMANDA SHIRLEY RITCHIE |
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JUDGE: | HIS HONOUR JUDGE PARRISH | |
WHERE HELD: | Wangaratta | |
DATE OF HEARING: | 26, 27 and 28 April 2017 | |
DATE OF SENTENCE: | 14 June 2017 (at Melbourne) | |
CASE MAY BE CITED AS: | Director of Public Prosecutions v Ritchie | |
MEDIUM NEUTRAL CITATION: | [2017] VCC 780 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – one charge of assist offender – two charges of theft – position of trust – no pecuniary gain for the accused
Legislation Cited: Crimes Act 1958, s325 and s72; Sentencing Act 1991; Criminal Procedure Act 2009, s241(1); Sentencing (Community Correction Order) and Other Acts Amendment Act 2016
Cases Cited: Boulton & Ors v R [2014] VSCA 342
Sentence: Community Correction order of 2 years with 150 hours of community work and supervision.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr D Hannan | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr B Nibbs | Nevett Ford |
HIS HONOUR:
1 Amanda Shirley Ritchie, you have pleaded guilty to the following offences:
(a) On Indictment No. F13483670A.1, you pleaded guilty on 1 May 2017, to Charge 2, to wit, that you, at Shepparton and divers other places in Victoria, between 30 April 2009 and 31 December 2009, knowing or believing an unknown principal offender to be guilty of a serious indictable offence, namely theft without lawful authority or reasonable excuse, did acts with the purpose of impeding the apprehension, prosecution, conviction or punishment of the unknown principal offender.
Such offence of assisting an offender is contrary to s.325 of the Crimes Act 1958 and carries a maximum penalty of five years’ imprisonment;
(b) On Indictment No. F13483670B, you pleaded guilty on 15 May 2017, to:
· Charge 1 – that you, at Shepparton and divers other places in Victoria, on or about 17 December 2013, stole property belonging to Helen Bassani.
Such offence of theft is contrary to s.72 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment;
· Charge 2 – that you, at Shepparton and divers other places in Victoria, on or about 3 January 2014, stole property belonging to Helen Bassani.
Such offence of theft is contrary to s.72 of the Crimes Act 1958 and carries a maximum penalty of ten years’ imprisonment;
2 For clarity, it should be noted that pursuant to Indictment No. F13483670A, you were initially charged with one offence of theft contrary to s.72 of the Crimes Act 1958 where it was alleged that you, at Shepparton and divers other places in Victoria, on or about 7 January 2008, stole property belonging to Mrs Joyce Cox.
3 That matter commenced at Wangaratta on Wednesday, 26 April 2017, after which there were two days of pre-empanelment argument. The jury was empanelled at approximately midday on Thursday, 27 April 2017. You pleaded not guilty to the offence involving Joyce Cox.
4 On 28 April 2017, further material was supplied by the Director of Public Prosecutions which consisted of work in progress on all of the relevant accounts, with no redactions. Your counsel sought time to consider such material and on 1 May 2017, I was informed of the following:
(a) Indictment No. F13483670A was to be redrafted to include a second charge involving assist offender contrary to s.325 of the Crimes Act 1958. Such redrafted Indictment is Indictment No. F13483670A.1. On 1 May 2017, you were re-arraigned, at which time you pleaded not guilty to the original Charge 1 of theft and guilty to the charge of assist offender contrary to s.325 of the Crimes Act 1958.
(b) I was informed by counsel for the prosecution that no evidence would be led with respect to Charge 1 and ultimately, pursuant to s.241(1) of the Criminal Procedure Act 2009, the plea of guilty in relation to Charge 2 was recorded and the jury was discharged in relation to Charge 1 on the basis that the prosecution would lead no evidence.
Circumstances of your offending
5 Counsel for the prosecution tendered a written summary of the circumstances surrounding your offending in relation to the charge concerning assisting an offender (Indictment No. F13483670A.1). Such summary has been marked as an exhibit (Exhibit 1) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
·In 2008, you were a “financial advisor” employed by a business known as “M&S Accounting”. Such business provided financial services involving giving people financial advice and investing the moneys of its various clients.
·In January 2008 you had amongst your clients members of the Cox family, which consisted of Geoff and Joyce Cox (a married couple) and Stephen and Lisa Cox (their son and daughter-in-law).
·Geoff and Joyce Cox had a number of bank accounts, and of relevance were the Macquarie Bank account in the name of the GJ&LJ Superannuation Fund (“The Cox Senior Superannuation Fund”) and the Rabo Direct Account in the same name (“Cox Senior Rabo Direct”). These accounts were managed by M&S Accounting.
·Lisa and Stephen Cox wanted to buy an investment property in Cremorne, and Lisa Cox asked you to apply for the funds from their “Calia Colonial Geared Investments” facility to buy the property. You had enquiries made with Colonial and determined that the facility had sufficient equity for them to borrow $500,000. You informed Lisa Cox of the situation and set up a meeting for both Stephen and Lisa Cox to meet with the John Hopkins Group, a developer building a set of units in Cremorne.
·Lisa and Stephen Cox entered into a contract to purchase an off-the-plan apartment at Lot B502 in Cremorne Street, Cremorne. They engaged a law firm called Dawes & Vary to handle the property transaction. Lisa Cox wanted you to obtain the funds from Colonial through the “Calia” facility, so that Colonial could send such moneys to Dawes & Vary to purchase the property and complete the settlement. Lisa Cox gave you such instructions and you agreed to carry out that task.
·You did not apply for the funding from Colonial.
·
The settlement of the Cremorne apartment was due to take place on
8 January 2008, at which time it was required that there be payment for the settlement in the sum of $442,034.26.
·Instead of obtaining the funds from Colonial, someone within M&S arranged for $600,000 to be transferred from the Cox Senior Rabo Direct Account to the Cox Senior Superannuation Fund. Such transaction was unauthorised as the purchase had nothing to do with Geoff and Joyce Cox.
·From there, a withdrawal form was completed and signed by staff at M&S Accounting on 7 January 2008 for the payment of $442,034.26 from the Cox Senior Superannuation Fund to the trust account of Dawes & Vary. Again, no such authority existed from the Geoff and Joyce Cox for such a payment. They knew nothing of it.
·Counsel for the prosecution noted that the prosecution cannot prove who, in fact, was responsible for the unauthorised withdrawal and payment to Dawes & Vary for the settlement of the apartment.
·The Cremorne property was settled on 8 January 2008, with payment being made by Dawes & Vary from money taken from the Cox Senior Superannuation Fund. In or about September 2009, Lisa Cox found out that the Cremorne apartment was still registered in the “vendor’s name” and the property transfer had not been processed. At that time, she was under the misapprehension that the funds which had been sent to Dawes & Vary had come from a loan from Colonial through the “Calia” facility.
·Lisa Cox told you that the transfer of the Cremorne property had not been processed. You then told a number of lies and carried out actions to “cover up” the fact that you had not applied for funding from Colonial initially, and that the money had, in fact, been transferred from the Senior Cox Superannuation Account. These acts were done to cover up the theft and done with the purpose of impeding the apprehension, prosecution, conviction or punishment of the person or persons responsible for the theft. Such action is the offending, the subject of Charge 2, to which you have pleaded guilty.
·You told Lisa Cox:
– That you had made a complaint to Colonial, which was a lie
– You used a false document – a letter which was created and made to look as though it had come from a manager of Colonial called Brian Phelps. Such letter was addressed to Stephen and Lisa Cox and dated 1 October 2009. In part, the letter said that Colonial had received a complaint from you about the Cremorne property not being registered to the Cox’s. The letter also 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”.
– The proposed terms of the sham “Deed of Settlement” were that Colonial would not ask for a return of the money which had been lent and Colonial would register the property at Cremorne and pay the costs associated with doing so and in return, Stephen and Lisa Cox would take no further action against Colonial.
·You used the “letter” and the sham “Deed of Settlement” knowing they were fictitious.
·In October 2009 you, together with Lisa Cox, met her lawyer at Dawes & Vary, at which time you said that Colonial had advanced the money without the proper documents being signed. At that time, Lisa Cox’s lawyer, Charles Hart, requested that some alterations be made to the Deed. On 15 October 2009, you sent an email to Mr Hart saying that Colonial had agreed to the alterations to the Deed.
·In December 2009, you spoke to a friend called Susan Norris, who was a conveyancer. You informed Ms Norris that a conveyance had taken place, but the solicitor or conveyancer handling the matter had not arranged for the stamp duty to be paid. You transferred $16,670.49 to Ms Norris. You then paid the stamp duty which was owed for the purchase of the apartment in Cremorne.
·In late December 2009, the title for the Cremorne unit was finally given to Lisa Cox and the title remains in the name of Stephen and Lisa Cox.
·In 2014 Joyce Cox became concerned as to whether M&S Accounting were giving her accurate information about how much money was in her accounts and she shared these concerns with her daughter-in-law, Lisa Cox. As a result, Lisa Cox began looking into the Cox family financial affairs and was told by an employee at Dawes & Vary – Lesley Hart – that according to their records, the money to buy the apartment had been transferred from the Cox Senior Superannuation Account and that the bank records of Dawes & Vary show that deposit.
·An investigation began involving people from M&S Accounting, Dawes & Vary and ultimately the police.
6 Counsel for the prosecution also provided a Summary of Prosecution Opening in relation to the two charges of theft on Indictment No. F134836370B. Such summary was marked as an exhibit (Exhibit 2) and has been accepted by you and your counsel as an appropriate representation of the offending. The important matters of such summary are:
·In May 2013, Geoff and Joyce Cox met with you and advised that they were not happy with the returns they were getting from an investment called “IOOF Managed Fund”. Geoff and Joyce Cox requested you to sell that investment in the IOOF Fund and use the money made from the sale to buy shares in the stock market instead. At that meeting, it was discussed that the best time to buy the stock market shares would be in June 2013.
·You agreed to sell the investment in the IOOF Fund and to buy shares in the stock market in June. However, you did not sell the investment in the IOOF Fund and did not buy shares in the stock market in June 2013.
·In September 2013, Joyce Cox called you and wanted to know which shares you had bought. You replied that the “bad news” was that the shares had not been bought yet, but “the good news” that the shares nominated to buy had increased in value.
·The case by the prosecution is that that was the state of affairs in late 2013. As a result, you told a number of lies and carried out a number of actions to shift the blame from yourself for your failure to buy the shares in June. You wrote a letter to Geoff and Joyce Cox, dated 28 September 2013, stating that, in effect, you had purchased the shares for them, but the IOOF had delayed in paying out what was owed from the sale of the IOOF investments (this was not true).
·You also wrote a letter to Geoff and Joyce Cox dated 26 November 2013 stating that, in effect, IOOF was to blame for the delay in buying the shares (this was not true).
·You created a false document – namely a letter which pretended to come from IOOF, dated 13 December 2013, saying, in effect, that IOOF accepted that it was due to its delay that Mrs Cox was out of pocket and that IOOF would send a cheque for $24,944.02. Such letter was a false letter and did not come from IOOF.
·Helen and Guiseppe Bassani were also clients of M&S Accounting. You handled their financial affairs and, in particular, managed the Superannuation Fund of Mr and Mrs Bassani.
·In order to compensate Geoff and Joyce Cox for your failure to invest in the stock market in June 2013, you arranged for a cheque to be made out authorising the withdrawal of $24,944.02 from Mrs Helen Bassani’s superannuation account. Such cheque was dated 17 December 2013 and the sum of money came from the Bassani Superannuation Account and was paid into the Cox Senior Superannuation Fund. At no time did Mr or Mrs Bassani authorise you to withdraw the money or pay it into the Cox Senior Superannuation Fund.
·On 20 December 2013, you sent an email to Mr Michael Watt, who was the managing director of M&S Accounting, that you had calculated that IOOF owed a further $51,419.61 to Geoff and Joyce Cox.
·You created a false document – namely another letter which purportedly came from IOOF – and addressed to Geoff and Joyce Cox, dated 3 January 2014. You pretended that such letter came from IOOF and in that letter, IOOF accepted that it was to blame for any financial loss and contained a cheque for $51,419.61.
·You arranged for another cheque to be made out authorising withdrawal of $51,491.61 from the Bassani Superannuation Account to be paid to the Cox Senior Superannuation Account, and such cheque was dated 3 January 2014, and was countersigned by a man called Peter George – an accountant from M&S Accounting.
·In Charges 1 and 2 on Indictment No. F13483670B, 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 the investments requested by Geoff and Joyce Cox.
7 During the course of the plea on 15 May 2017, the following information was also established:
·The prosecution was unable to offer any reason why you did not apply for funding from Colonial, given the request and the initial contact with Colonial.[1]
·When queried by the Court as to whether there was any paper trail as to how the $600,000 came to be transferred from the Rabo Direct Account into the Superannuation Fund, I was informed that the withdrawal required the signatures of two directors, and in the statements of those particular directors, they indicated they often performed such activities and did not recall the actual transaction.[2]
·I was informed by the prosecutor that no person had been charged with the theft of this money from the Cox Senior Superannuation Fund.
·I was also informed that the Crown was not in a position to prove that the signature in relation to the letter purportedly from Mr Brian Phelps, on the Deed purportedly from someone at Colonial, was forged by you. However, as already asserted, the Crown case was, and accepted by those acting for you, that the letter and the Deed were false.
·I was also informed that the sum of $16,670 transferred by you to Ms Norris in order to complete the transfer by way of payment of stamp duty, came from you or your family.
·The moneys stolen from the Senior Cox Superannuation Account (by a person or persons unknown) has not been repaid.[3]
·Ultimately, the IOOF asset was realised and according to the prosecution, such moneys were paid to Geoff and Joyce Cox.[4]
·M&S Accounting recompensed the Bassani Superannuation Fund to the extent of the amount stolen by you.
·The prosecution made clear that there was no evidence that you had gained any financial advantage by the commission of these offences.
[1]Transcript (“T”) 4, Lines (“L”)14-18
[2]T5, L7-10
[3]T12, L23-T13, L10
[4]T20, L1-19
Prior criminal record
8 You have no prior convictions and, furthermore, I have been informed that there has been no record of subsequent offending of any type.
Victim Impact Statements
9 The prosecution tendered two Victim Impact Statements – one from Mrs Lisa Cox, declared on 15 May 2017 (Exhibit 3), and one from Mrs Helen Bassani, declared on 11 May 2017 (Exhibit 4).
10 Each of these deponents read their statements to the Court.
11 Mrs Cox, stated in part:
“Amanda Ritchie had been our Financial Planner since approximately 2002. Amanda was employed and licenced by our then long term accountants M & S Accounting Services Pty Limited, part of the M & S Group. We had a very strong and trusting relationship with Amanda as our Financial Planner, accepting and following her investment advice whole heartedly. My husband Stephen and myself were proud of the investment choices being made and were quite excited when Amanda explained that equity had reached a point where it was recommended that we make a property purchase in Melbourne. With Amanda's referral to a property agent and approval for finance, a purchase off-the-plan was made. Seeking and paying for legal advice through the whole settlement process and the now subsequent Deed of Release process, the deception that has followed this proud moment for us and the pain and financial loss that has evolved since this day is quite unbelievable.
This crime has caused emotional pain, confusion and disbelief, the hundreds of separate conversations, revelations and discoveries have been an emotional rollercoaster. The pain and loss of confidence it has inflicted on ourselves and the frustration of seeing those very close to us have to endure the same process is unforgiveable. A lot of hard work and sacrifice has gone into building the life we have today. All decisions are not easy to make that is why you surround yourselves with licenced professionals, ones you trust that will perform all duties in line with the laws and regulations.
Our financial position has gone from a strong healthy place where confidence was held high not only on a personal level but also with our financial lender. The financial uncertainty and doubt on our true financial position has ceased any personal investment since 2014 … .”
12 Mrs Bassani stated, in part:
“At the time of the crime that affected myself, I had just lost my husband from terminal cancer, it was a very low point that I was coping with as I put (so I thought) everything in place, mainly our finacial (sic) matters. I trusted Amanda completely with all financial matter and paper work. The misappropriation of the money was bad enough, it was the timing that upset me greatly. I have lost my faith to trust anyone (money wise) I questioned my own stupidity to trust some so completely.
Even to have to put my feelings on paper is very upsetting and highly emotional. (sic)”
Your personal, educational and vocational background
13 You will recall that your counsel tendered a document, “Defence Submissions on Plea” (Exhibit “A”). Based on the contents of the plea submissions and other information supplied by your counsel, I note the following in relation to your general background:
(a)You are a forty-five-year-old married woman with two children, a son who is aged sixteen and a daughter who is aged fourteen, both of whom attend the Notre Dame College, Shepparton;
(b)At the time of the initial offending you were thirty-seven years of age, and at the time of the second lot of offending, you were forty-one years of age;
(c)You were born in Shepparton, and both your parents had steady employment in the Shepparton area. You have one sibling, a sister, who is employed as the International Sales and Marketing Manager of a wine company;
(d)You attended primary school in Shepparton, after which you completed your VCE at Shepparton High School;
(e)You then attended Latrobe University, studying for a Bachelor of Business – the first two years were spent at a Bendigo campus, studying and travelling home each weekend to Shepparton, and your third year was completed at a newly opened campus in Shepparton;
(f) Over the years you have had the following employment:
(i)Your first job was as a delivery person at the Neil Werner Amcal Pharmacy in Shepparton, which commenced when you were fifteen. You were required to ride your bike to the pharmacy after school each night and deliver prescriptions to those who were not able to come into the store, and also to a private hospital and nursing home. At the age of sixteen-and-a-half, you moved into working within the pharmacy on a Friday night and Saturday morning, and through your school holidays. Such work continued until your second year of university;
(ii)Also, during the summer months at the end of Year 12 and during your university years, you did a variety of seasonal work associated with fruit picking and process work involving fruit;
(iii)When you transferred to Shepparton for your final year of university, you commenced work at the Victoria Hotel, Shepparton, where you worked as a waitress in the bistro and later, when gaming was introduced, you obtained your gaming licence and worked in both the bistro and gaming room;
(iv)After completing your tertiary education, you accepted a position as the internal auditor in Ballarat, for the Ballarat Brewing Company, where you remained for about two years;
(v)Rather than move to Melbourne following an amalgamation between the Ballarat Brewing Company and CUB, you moved back to Shepparton and commenced employment with the Goulburn Valley Broadcasters, which owned various radio stations. You were in that position for about three years performing bookkeeping duties and other clerical tasks;
(vi)Seeking more active forms of employment, you commenced in the role of a para-planner/administrator at M&S Accounting Services in Shepparton, during which time you met your now husband, and you were married in May 1999.
14 When you commenced with M&S Accounting Services in August 1999, your role was to effectively type reports for the planner using a basic template and filling in details of any particular client. During your maternity leave in relation to your first child in mid-2000, you commenced your studies for a Diploma of Financial Planning, and this was done through Deakin University under the auspices of the Financial Planning Association of Australia.
15 Ultimately, you commenced work as a planner, and during twelve-month’s maternity leave in 2002, you completed your Diploma of Financial Planning.
16 On returning to work after maternity leave, you initially commenced four days per week, but later this increased to five days per week and you were given the responsibility, together with another planner, of collating the applications and proofs for ASIC. Essentially, this involved you taking a leadership role in the financial planning area of the Shepparton office.
17 Over the years, you and your husband had been actively involved in sporting activities undertaken by your children. In particular, you, together with your husband, were team managers of various basketball teams in which your son was a representative and you have also been team manager for your daughter’s netball team.
18 You have performed volunteer work involving organising and rostering umpires for the Netball Association.
19 You are still actively involved in baking for a church catering group and you are also the primary carer of your mother, who is an insulin-dependent diabetic and has a number of other complications with her health, including heart disease, fluid retention, blood loss and kidney failure. Although your mother does live independently, she does require your assistance, as there has been a number of amputations of toes and, in 2012, she lost the lower half of her leg, just below the knee. Although your mother has a prosthetic leg, she has been unable to use it since August last year and needs assistance with a variety of matters.
20 When your offending became known, your employment was terminated and you have lost the ability to work as a financial planner. Apparently you have been looking at other options, mainly in project management, as you consider that you have good organisational skills and know how to stick to a budget, and such skills could be transferred to such activity.
21 Furthermore, you have enrolled in a Diploma of Health Care Documentation and hope to finish this course in June 2017. Apparently this is the type of work that can be done on completion of such a diploma and can be undertaken on a contracting basis at home. You consider that working from home will give you the flexibility to be able to care for your mother and cater for the needs of your family.
Submissions of your counsel regarding mitigation of sentence
22 Your counsel submitted that the following matters are particularly relevant in determining an appropriate sentence:
(a)You have no prior convictions for any matters pertaining to dishonesty or, indeed, any prior convictions at all;
(b)You have pleaded guilty to all of the offences, and such pleas should be considered to have been at the earliest opportunity. In this respect, your counsel noted that the original indictment which contained one charge of theft was denied, and that after legal argument and further disclosure the new indictment was filed over, and the matter was resolved immediately by you pleading guilty of assisting an unknown offender contrary to s325 of the Crimes Act 1958. Furthermore, it was submitted by your counsel that in relation to the subsequent offending involving the theft from the Bassani Superannuation Fund, you had indicated, through your legal representatives, from a very early date, that that matter would resolve and that you would plead guilty;
(c)Although the offending does involve matters of dishonesty, there was no personal gain or betterment by you;
(d)That you have had your registration as a financial planner revoked and will be unemployable in that type of work in the future;
(e)That the media reporting of matters surrounding your offending has had an impact upon you and your family so that has been the additional punishment of having your immediate community know what your offending has involved.
23 Your counsel submitted that although the offending clearly involves a significant breach of trust, the various mitigating factors which suggest that rather than an immediate prison sentence, a community correction order is appropriate.
The submissions of the prosecutor
24
Counsel for the prosecution accepted, in a general sense, that the circumstances surrounding your offending is “unusual” and, there was no suggestion of a typical situation which involved obtaining moneys for the offender’s gratification. However, counsel for the prosecution did submit, with some force, that your offending certainly involved a significant breach of trust and, in particular, he referred to the comments of Mrs Lisa Cox and
Mrs Bassani in their respective Victim Impact Statements .
25 Counsel for the prosecution also submitted that Mrs Bassani was in a vulnerable state at the time of the theft and that she had experienced nursing her dying husband, and the funds had been set up at or around the time of his death.
26 Counsel for the prosecution conceded that given the circumstances surrounding this matter, it is not necessary that there be a sentence of actual immediate imprisonment, and the sentencing principles of just punishment and deterrence can be achieved by a different type of disposition.
27 The Court directed that you be assessed to determine your suitability for a Community Correction Order. Such assessment occurred on 14 June 2017. In a report of the same date, it is recorded that you have been assessed as suitable for a Community Correction Order and that conditions of supervision and community work are recommended. Furthermore, you were assessed as being at a “low risk of re-offending”.
Conclusion
28 As both counsel submitted, there are a number of strange circumstances surrounding your offending. Although it cannot be gainsaid that in respect of each of the charges to which you have pleaded guilty you acted dishonestly in relation to your respective clients and breached their trust in you as their financial advisor and planner. I am satisfied that such offending was not embarked upon to financially advantage yourself in anyway whatsoever. Indeed, it is agreed that you or your family supplied the moneys for stamp duty to complete the sale of the Cremorne property to Lisa and Stephen Cox.
29 Indeed, it is not clear to the Court as to why you did embark on your criminal activities in relation to the Cremorne property and the theft from the Bassani Superannuation Fund. It was suggested that in both instances you were particularly tardy in carrying our your instructions, and rather than confront your respective clients you chose the course to assist an unknown offender when realising such offender had stolen from the Cox Superannuation Fund the sum of $600,000 and, furthermore, chose to steal from the Bassani fund when you had not sold the IOOF asset to purchase the shares. Furthermore, such action may also have been borne in a misplaced loyalty to the firm where you started as a junior and had risen up through the ranks.
30 Be that as it may, there is clear dishonesty on your part in dealing with the Cox family and the Bassani family. These people, in general, have relied on you for your expertise in financial planning and permitted you to deal with large sums of money on their behalf. The offending does reflect a significant breach of trust and, indeed, one only has to read the Victim Impact Statements of both Lisa Cox and Mrs Bassani to appreciate how that breach of trust had affected them and their families.
31 It is also to be appreciated that your offending occurred over a period of time, both in the sense that each bout of offending occurred over a number of months and, indeed, also in the sense that the offending relating to the Cremorne property and the offending relating to the Bassani Superannuation Account were separated by a number of years.
32 I do consider that such offending is reasonably serious given the blatant breach of trust in circumstances where people rely on financial planners such as you to assist in building assets on which they are dependent now and into the future.
33 I consider that any sentence must reflect elements of general deterrence, just punishment, and specific deterrence.
34 In mitigation, I do accept that your pleas of guilty in relation to each of the offences were essentially at the earliest possible time. Furthermore, you have no prior convictions and, in particular, no offending, whatsoever, for dishonesty offences.
35 Importantly, I do accept that whatever your motivation for such offending, it was not for personal gain or betterment for you or your family. I also note that your registration as a financial planner has been revoked, and given the convictions which I will enter in relation to these offences, you will never be able to work in this type of industry again.
36 I also accept that it is probable, in a smaller community such as where you live, the knowledge in the community of your offending will perhaps cause greater hardship to you and, indirectly, to your family.
37 I also accept that prior to such offending you have demonstrated that you have been someone who has worked extremely hard from when you were a teenager and engaged in a variety of community activities. You have been committed to your family and have been involved in your children’s activities in a variety of ways and, indeed, continue to help your invalid mother.
38 Unfortunately, for reasons which are not completely clear, you made frightfully bad decisions when going about your business with the junior Cox’s in relation to the Cremorne matter, and later assisting the senior Cox’s with the disposal of the IOOF asset. To your credit, you are now attempting to retrain yourself in an area in order to resume some type of work. All of this is to your credit.
39 Although I consider specific deterrence a relevant issue in the disposition of this matter, I accept that, in your circumstances, the chances of re-offending are very small. Indeed, I also note that in the report assessing your suitability for a Community Correction Order, it is recorded that you are “a low risk of re-offending”.
40 I also take into account that the Bassani Superannuation Fund has been recompensed by your previous employer and that the Cox Senior Superannuation Fund still continues to enjoy the benefits of the Calia facility which, as I understood it, holds the Cremorne property.
41 In all the circumstances, I intend to convict you of each offence. Your counsel submitted that a Community Correction Order would be appropriate in all the circumstances and, indeed, counsel for the prosecution did not urge on the Court an immediate period of incarceration.
42 I refer to the guideline judgment given by the Court of Appeal in Boulton & Ors v R[5] pertaining to the operation of Community Correction Orders which have been available in Victorian courts since January 2012. As that court stated, the Community Correction Order is a radical new sentencing option, with the potential to transform sentencing in this State. Although a non-custodial order, such order has certain mandatory conditions laid down by the legislature, and a sentencing court can attach to a Community Correction Order, a range of conditions which are variously “coercive, prohibitive, intrusive and rehabilitative”. As pointed out by the Court of Appeal, a Community Correction Order is a “flexible sentencing option in enabling punitive and rehabilitative purposes to be served simultaneously”.
[5][2014] VSCA 342. Significant amendments were made to the operation of community correction orders by the operation of the Sentencing (Community Correction Order) and Other Acts Amendment Act 2016 which, for present purposes, applies to any order made on or after 20 March 2017.
43 I refer to s.5(4) and s.5(4C) of the Sentencing Act 1991 which respectively states:
“(4)… a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender."
… And furthermore
(4C)… "a court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community correction order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.”
44 As the Court of Appeal has stated, s.5(4C) of the Sentencing Act 1991, prohibits the imposition of a sentence of imprisonment unless the sentencing court has paid specific and careful attention to:
(a)The purpose for which the sentence is to be imposed on the offender; and
(b)Whether these purposes can be achieved by a Community Correction Order for which one or more of the specified (onerous) conditions is attached.
45 It is necessary that I first assess the objective nature and gravity of the offending and moral culpability of you. As I have already recorded, I consider your offending to be serious given the nature of your breach of trust in relation to your clients, but consider, in all of the circumstances, such offending does not involve the worse types of moral culpability in relation to these offences.
46 I am of the opinion that the offending, as so assessed, and given all the circumstances that a Community Correction Order is an appropriate sentencing disposition. Accordingly, in relation to the three offences, and applying s.40(1) of the Sentencing Act 1991, I intend to sentence you to a Community Correction Order for a period of two years with certain conditions.
47 Please be upstanding.
(a)In relation to Charge 2 on Indictment No. F13483670A.1 and in relation to Charges 1 and 2 on Indictment No. F13483670B, you are convicted of each offence and sentenced to a Community Correction Order for a period of twenty-four months. This order commences today and ends on 13 June 2019.
You must attend at the Shepparton Community Correctional Services by 4pm on the 16 June 2017. In addition to the mandatory terms, the order contains the following conditions:
(i)Pursuant to s.48C of the Sentencing Act 1991, you are to perform unpaid community work for a period of 150 hours;
(ii)Pursuant to s.48E of the Sentencing Act 1991, you are to be supervised, monitored and managed as directed by the Secretary of Justice and Regulation; and
(b)Pursuant to s6AAA of the Sentencing Act 1991, save for your pleas of guilty, I would have imposed a sentence of eighteen months’ imprisonment, with a non-parole period of twelve months.
48 Yes. Anything arising out of that counsel?
49 MR NIBBS: No, Your Honour.
50 HIS HONOUR: Yes. Mrs Ritchie, as has been explained to you, you have been convicted of each offence and you are being sentenced to a Community Correction Order. That is a sentence of the court. If you get into any sort of trouble over the next two years, you will be back before me and the sentencing disposition re-opens and it means I can send you off in a prison van that particular day.
As I said in this judgment, although I do not think this is the worst type of this type of offending, mainly because I do accept that you have not set out to gain money for yourself or your family, it cannot be gainsaid that the breach of trust in this matter was immense in the role that you had, and indeed, as I say, if there was any suggestion that you were being financially advantaged by that, you would be taken off today, but in the circumstances of this matter, you are being punished and you will have to perform those hours of work, and as I have already noted, you will not work in this area ever again, as no doubt you will well appreciate, and indeed as I have also said in this sentence, it is not clear to me at least, why these events occurred. Be that as it may, you made frightful decisions for which you are paying the consequences now. Very well. We will stay here. We will have that signed. I might adjourn briefly.
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