Director of Public Prosecutions v Rowe

[2017] VCC 1731

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT LATROBE VALLEY
CRIMINAL JURISDICTION

CR-17-01492

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHERYLE ROWE

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Latrobe Valley
DATE OF HEARING:
DATE OF SENTENCE:	22 November 2017
CASE MAY BE CITED AS:	DPP v Rowe
MEDIUM NEUTRAL CITATION:	[2017] VCC 1731

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Triandos	The Office of Public Prosecutions
For the Accused	Mr M. Minucci	Balmer & Associates

Pages 1 - 7

 

 

HIS HONOUR:

1Cheryle Margaret Rowe, you have pleaded guilty to eight charges of false accounting and nine charges of theft.  Those crimes carry maximum penalties of ten years' imprisonment.  However, in this particular situation, Charge 6, 14 and 15 of theft involve a continuing criminal enterprise.  Therefore, the maximum penalties for those three is 20 years' imprisonment.

2Firstly, pursuant s.464Z of the Crimes Act, I make an order that you provide a saliva sample for DNA purposes.  That order having been made, I must advise you that should you refuse to provide such a sample, police may use reasonable force to take it from you and that order is made and handed down.

3You are 63 years of age.  You pleaded guilty at an early opportunity and you must of course get the utilitarian benefit of that plea of guilty.  In matters such as this, that utilitarian benefit is significant as it saves the community a lot of money in terms of prosecuting such a matter.  You have expressed remorse to Mr Joblin, the psychologist, who is known to me, and I accept that.  You have no prior convictions but it must of course be borne in mind that this offending took place over an extended period of time.

4The circumstances of the offending are that you commenced employment with Birch Ross and Barlow solicitors on 27 October 1996.  That is a firm which has been practicing in Victoria for a century.  They have offices in Leongatha, Korumburra, Wonthaggi and Cowes.  I don't need to go through who was working there other than you were employed by them from 1996 as a law clerk.

5Again, I do not need to go through the size of the trust accounts or anything along those lines but what occurred was that a Mr Neville Howard, who held the power of attorney for a Francis Tishelman, requested information from you in regard to $245,000 held in trust at Birch Ross and Barlow.  He did not receive the requested information and subsequently lodged a complaint with the Legal Services Board.  They then conducted an audit of the trust accounts held at Birch Ross and Barlow.

6You were initially charged with some 60 offences of theft and false accounting, alleged to have been committed between 1 January 1998 and 23 November 2013.  The charges to which you have ultimately pleaded guilty in front of me are of a shorter time frame than that and I am given that information just simply to put this into an overall context.

7I must of course be careful to sentence you only to the charges before me.  14 of those 17 charges are rolled up charges and, aware of the principles related to sentencing for those, as I indicated, three of the charges are of a continuing criminal enterprise nature.  The charges of theft are, in one sense, quite simple.  The individual victims, though in this particular situation, the victim in reality is Birch Ross and Barlow, are outlined in the fixtures.

8The fact of the matter is that the amount taken comes to a sum total for which I sentence you of $666,000.  The legal fidelity fund has already paid a total in excess of $1.5 million to clients of Birch Ross and Barlow, and as I understand it, there are further claims pending in relation to that.  That is a matter which will be determined at a later period of time. 

9It has been put to me that you have been declared bankrupt as a result of all this and it seems to me that that is not a matter I should be investigating or buying into.  The fact of the matter is that the individual victims as such, a number of them have not been reimbursed by anybody and accordingly, I am not going to indulge in the folly of trying to sort all that out.

10The rolled-up charges of false accounting relate to, as with the theft, calendar years and they inherently involve the hiding of the false transactions that you had been conducting.  The false accounting charges have been given a monetary figure which is a little bit unrealistic because there's not actually a victim to them, which totals something in the order of $6.5 million.  That of course includes double-ups. 

11On 22 May 2013, police attended your address.  A search warrant was executed and you and your husband, who is now deceased, as I understand it, were present.  Police located documents and files related to clients of Birch Ross and Barlow.  You were not authorised to have those documents and files at your homes.  They also located cheques made payable to clients that you had failed to forward to respective clients.  You were not authorised to keep those at home.

12On 15 July 2013, police attended at a self-storage facility in Cowes which was, rented in your name.  They found 34 boxes of documents related to Birch Ross and Barlow contained within those units.  Contained within the boxes were numerous client files from Birch Ross and Barlow.  You were not permitted to remove the documents from their offices and store them in your storage shed.  Some of the files contained land titles which had not been transferred into the new owners' names.

13The offences to which you've pleaded guilty span the time frame of 2005 to around March of 2013.  It is clear that during that period of time there were numerous dishonest transactions carried out by you and as I have indicated, very significant amounts of money were taken.  There is really no information as to where that money went.  You have never really provided an explanation. 

14The report of Mr Ian Joblin which was tendered on your behalf says that he made a number of endeavours to try and work out what had happened, and I will refer to that again shortly.  The fact of the matter remains that a very significant amount of money remains missing and totally unaccounted for. 

15You, as a law clerk, engaged in what can only be described as gross breaches of trust over a very long period of time in relation to many people.  The situation is that three victim impact statements have been filed and one read out in court.  Whilst Birch Ross and Barlow are the overall victims in all this which enables me, I think, to make an aggregate - or to give an aggregate sentence, the victim impact statements that I have read indicate the personal sense of betrayal of each of the people whose families suffered loss, albeit with many of them being reimbursed later, and that sense of a breach of confidence, of personal information and just general trust.

16It is hard to really equate or describe, I suppose, the devastation that this sort of offending causes to many people and indeed, I would assume in this situation, to a community.  There have been references tendered on your behalf which indicate a number of matters and again I will go to them in a moment.

17The offending has to be regarded as very serious.  It occurred over an extended period of time.  The application of general deterrence to this sort of thieving has to be, in my view, paramount.  I doubt that you will offend in this way again but denunciation and appropriate punishment are also important parts of this sentencing process.  A significant gaol sentence is inevitable and that is what it will be.

18Tendered on your behalf were references, a report from Mr Joblin and a report from your general practitioner, a Mr Awburn.  Those references indicate that you have had a number of unfortunate incidents in your life.  You have clearly been a person who has, in other ways, served the community in Bass Valley and around Wonthaggi, with the football club, with the day care for aged people and you've obviously, in many respects, been a caring person for members of your family.

19As I have indicated, as a consequence of all this, you and your then-husband were declared or declared yourselves, I'm not sure which, bankrupt and again, when you spoke to Mr Joblin, you still weren't saying where the money went, other than that the property that's been seized and sold soon after that bankruptcy, you told him would not have been from the proceeds you took.  As I say, the references speak very much on your behalf.  As is often the situation, they don't seem to appreciate the gravity of the thieving that you were engaged in over such an extended period of time.  Mr Joblin in his report goes through your history.  Again, at the age of 63, I am not going to go back into childhood and the like.

20You had an unfortunate childhood in some respects.  You had, as I understand the material, endeavoured to bring up stepchildren and all that has fallen apart.  You are now ostracized by many members of your extended family and whilst there are matters in here which I have got no idea what is really going on in the background. It would seem that your detection at least, not the offending, has caused you a great deal of grief and I take that into account.

21Again, as I said, Mr Joblin has endeavoured to try and find out where all this went and why you did it and remain as nonplussed as I suspect many other people are.  He said,

"Indeed, it was interesting to try to locate the destination of the monies involved in these matters, given her outline of the assets they had and lost through the trustee.  It is reported that very few if any would have been purchased with the funds involved in these offences."

22He goes through your work history, which up until the commencement of this offending, was clearly good.  You left school at an early age, went to work in a bank and then went to solicitor's offices and would have, on the face of it, appeared to have always been employed.  You suffered from depression and I have the letter from your general practitioner who indicates that at the present time, he has been treating you for depression, osteoarthritis and hypertension, and he mentions the matters that he has treated you for in the past as well as the medications that you are currently on.

23Since this has all come to light, I accept, obviously, that your partner of many years has passed away and that again, must have been a very difficult matter for you.  I take all those matters into account.  The prospects of your rehabilitation are really up to you.  The risk of you reoffending, I would have thought in your personal circumstances would be very little indeed.  However, the fact remains that what you have done, as I said, very serious offending over an extended period of time.  It caused a great deal of distress and loss to a great number of people.  Accordingly, the sentences to be imposed must reflect all those matters as well as the matters personal to you.

24Accordingly, on all the charges, you are sentenced to be imprisoned for an aggregate period of five years. I direct that you serve a minimum term of two and a half years before becoming eligible for parole. Pursuant to s.6AAA of the Sentencing Act,  which is meaningless in this situation because you cannot be put on trial for rolled-up charges, but for the purposes of this I say that you would have been sentenced to be imprisoned for a period of seven and a half years with a minimum term of five, but for your pleas of guilty.  Are there any other orders I have to make?

25MR TRIANDOS:  No, Your Honour.

26HIS HONOUR:  No.

27MR TRIANDOS:  No, just to be noted on the records of the court that it's just been sentenced as of a continual criminal enterprise nature.

28HIS HONOUR:  I have, yes.

29MR TRIANDOS:  That's been done. 

30HIS HONOUR:  Yes but I should, yes - I direct that that continuing criminal offence, whatever the word is, be noted on the court records.  I will revise that later and get the correct wording.

31MR TRIANDOS:  As Your Honour pleases.

32MR MINUCCI:  Nothing further, Your Honour.

33HIS HONOUR:  All right.  Yes, you can take her now, thank you.

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