Director of Public Prosecutions v Schroder

[2022] VCC 2071

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

 Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-02235

CR 22-01164

DIRECTOR OF PUBLIC PROSECUTIONS

v

KRIS SCHRODER

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	7 July 2022, 8 July 2022 11 July 2022, 12 July 2022 13 July 2022 , 14 July 2022 and 11 November 2022
DATE OF SENTENCE:	28 November 2022
CASE MAY BE CITED AS:	DPP v Schroder
MEDIUM NEUTRAL CITATION:	[2022] VCC 2071

REASONS FOR SENTENCE

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Subject:

Catchwords: Attempt to obtain a financial advantage by deception, Perjury, Attempt to pervert the course of justice, Subordination of perjury

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. O'Doherty (Plea)	OPP
For the Accused	Mr S. Kenny (Plea)	Stary Halphen Norton

HER HONOUR: 

1Kris Schroder, in respect of Indictment J12099413.2, a jury found you guilty of the following charges:  one charge of attempting to obtain a financial advantage by deception (Charge 1); four charges of perjury (Charges 2, 3, 4 and 8); one charge of attempting to pervert the course of justice (Charge 5); two charges of subordination of perjury (Charges 6 and 7).  You were found not guilty of one charge of attempting to pervert the course of justice (Charge 9). 

2You also pleaded guilty to two charges of perjury in Indictment No.J12099413A. 

3The maximum penalties for these offences are:  attempting to obtain a financial advantage by deception – five years; perjury and subordination of perjury – 15 years; attempting to pervert the course of justice – 25 years. 

4The circumstances relating to the plea matters are contained in the Summary of Prosecution Opening dated 5 August 2022.  Those circumstances are relevant to the offences that were the subject of the trial, and all arise as a consequence of your involvement with the financial affairs and estate of Maree Elizabeth Hart (Ms Hart), and steps taken by you in an attempt to ensure that the legitimate entitlements of Leah McDermott (Ms Hart's niece) and Darrell William Keely (Ms Hart's nephew) were not recognised. 

5You had been in a relationship with Ms Hart and had lived with her since 1988.  In 2006, you purchased a house together in Kew – you owned 20 per cent and she the remainder.  Unfortunately, Ms Hart's health failed in February 2015 and she was hospitalised intermittently until her death in February 2016. 

6The plea matters relate to evidence that you gave in VCAT proceedings relating to transactions that you conducted on bank accounts owned by Ms Hart, which resulted in funds being transferred to bank accounts either jointly in both her and your name, or an account in your name.  These transactions or activity occurred between February 2015 and December 2015.  Proceedings were issued in VCAT by Mr Keely in August 2016 where the issue in dispute was your handling of Ms Hart's financial affairs during the relevant period, that being whilst she was ill but prior to her death.  The evidence that you gave that you had not transferred funds from Ms Hart's bank accounts to a joint account or an account in your name was false.  The details of those transactions are set out in the Prosecution Opening.  In giving that evidence you deliberately misled the Tribunal as to the true role that you played in the management of Ms Hart's financial affairs and the benefit you received at a time when Ms Hart was unable to manage her own affairs. 

7In respect of the trial matters, the jury by their verdict, accepted that you engaged in a course of conduct designed or attempting to ensure that the legitimate beneficiaries of Ms Hart's estate were denied their entitlements, and that you were the sole beneficiary.  Without traversing all of the facts, to put your offending in proper context:

·Ms Hart had made a will in 1998 (the 1998 will) – that will distributed her estate one-third to you, one-third to Mr Keely and one-third to Ms McDermott;

·Ms Hart died in February 2016;

·In April 2016, you were paid approximately $800,000 as the beneficiary of Ms Hart's superannuation – you also sold the Kew property for $1.5m that was subject to probate of Ms Hart's will;

·Around this time, you informed two friends Kenneth Ewington and Warren Rogan that:  (i), Ms Hart had no will; (ii), that you had prepared a will (that is the 2014 will); and (iii), that you had forged their signatures on the will as witnesses.

·You then sought the grant of probate of the 2014 will – this was advertised on 29 April 2016;

·On 13 May 2016, Ms Hart's sister lodged a caveat in respect of 2014 will;

·On 6 June 2016, you applied for probate in the Supreme Court in respect of the 2014 will – you exhibited to the application a copy of the 1998 will – by doing that, you attempted to obtain a financial advantage namely two‑thirds of the estate to which you were not entitled.  (Charge 1)

·In the probate proceedings, you affirmed three separate affidavits attesting to contents relating to the legitimacy of the 2014 will knowing that it was false - that is, one on 6 June and two on 15 June.  (Charges 2, 3 and 4);

·Sometime in June, you contacted Mr Ewington and told him that he and Rogan needed to file affidavits as to the validity of the 2014 will.  You later informed them what information needed to be included in the affidavits. That is Charge 5 - attempt to pervert the course of justice;

·On 26 July 2016, both Ewington and Rogan swore those affidavits at a solicitor's office.  (Charges 6 and 7);

·On 15 September 2016, both the application for probate of the 2014 will and the caveat were withdrawn. 

·On 15 November 2016, you were granted probate of the 1998 will.

·On 7 February 2017 you swore an affidavit in the VCAT proceedings indicating that Ms Hart had made both the 1998 will and the 2014 will, knowing that statement was false.  That is Charge 8. 

·On 20 September 2017, Ewington and Rogan both pleaded guilty to one charge of perjury in respect of the affidavits sworn by them on 26 July 2016 – they were each placed on a 12-month CCO and gave undertakings to give evidence against you in the trial which they did.

·In November 2017, the proceedings in VCAT resolved.

8I received victim impact statements from both Leah McDermott (Ms Hart's niece) and Darrell William Keely (Ms Hart's nephew).  They both provide an account of the grief and distress caused your conduct leading up to Ms Hart's death and more particularly the events that followed.  As is apparent from the brief outline above, you engaged in a course of conduct in legal proceedings to deny them of their entitlements.  They have both suffered significant financial loss in participating in various legal proceedings relating to the monetary affairs and estate of their aunt, brought about directly by your conduct.  Mr Keely speaks of the impact on his financial state and business but also the significant stress placed on relationships within the family, particularly the impact your offending had on his mother, Ms Hart's sister.  Ms McDermott feels deeply betrayed by your actions and also grief as to what she describes as your betrayal to Ms Hart and her desires.  Both have engaged psychologists to deal with the emotional and traumatic issues that have arisen in family and friends relationships. 

9Ms McDermott concludes:  'Whilst I never had this money in the first place, it is easy to say there isn't a financial loss, but that would be a disservice to my children, my family's future and what Maree (or Ms Hart) would have wanted.  I never wanted their home, I never wanted Maree's money or Kris' mess but I was thrown into it by Kris' crimes.'

Personal circumstances

10As to your personal circumstances, I was provided with the report of Dr Matthew Barth, psychologist, 10 October 2022.  There is also a report of Warwick Brewer, consultant clinical neuropsychologist, 20 July 2021; and a letter from Dr Emily Walsh, 9 November 2022.  I also received a bundle of character references.

11Your personal history and background are fully canvassed in Dr Barth's report and I take that material into account.  You are currently aged 61 – you are the middle of five  children and grew up in Springvale.  I was informed that you are estranged from your family except your mother with whom you have regular contact.  You completed Year 12 at a local school and commenced an Arts degree, though you soon left and went to Queensland.  You trained as a chef and worked in restaurants for a short time in Queensland and then Tasmania.

12When you returned to Melbourne you completed a Bachelor of Behavioural Sciences and then a further Honours year in Organisational Psychology.  You then worked in child protection and undertook further studies, completing a Masters of Counselling in Psychology and a Masters of Forensic Psychology in the early 2000s.  Since that time, you have worked as a psychologist in private practice, child protection, and for the Department of Justice. 

13You have no issues with drug or alcohol abuse.

14You have a number of significant physical health issues including osteoporosis, rheumatoid arthritis, and chronic pain.  In late 2020, you suffered a stroke which caused a mild acquired brain injury.  That injury has left you with some cognitive and neuropsychological impairments and you have not been able to return to work since that time. 

15Upon settlement of the proceedings regarding Ms Hart's estate, you have lived in a house by yourself in Harkaway.  I was informed you are currently unable to meet the mortgage repayments and face difficulty selling the property because it is subject to a restraining order.

16You have no prior convictions and no outstanding matters – I accept that you were previously of good character. 

17The character references filed on your behalf attest to your strong devotion for Ms Hart and the devastation that you felt upon her death.  They speak glowingly of the support and care that you were able to provide her when she was unwell and the impact that had on your business as a psychologist, and also your own mental and physical health. 

18Both personal and professional colleagues describe you as hard working and committed to the care and welfare of your clients.  Many also describe the significant impact on you as a consequence of your involvement in this offending – the damage to your reputation and your career, and the capacity for you to work as a psychologist. 

19Many comment on the financial impact and the inability of you to properly grieve the death of Ms Hart, recognising she was your life partner.  None of the witnesses called in the trial disputed that you had a close and loving relationship with Ms Hart and that she was the most significant person in your life.  It was submitted that her illness and passing were at a deeply distressing time for you and you still suffer from grief and have required mental health assistance to cope. 

20Your offending was described by your counsel as you having made some very poor decisions or choices during this emotional and difficult time.   

Mental functioning

21As to your mental functioning, Dr Barth opined:  'You continue to present as a psychologically vulnerable person.  Presently, your mental health has been exacerbated by the stress of your ongoing legal matter.  In short, while your current mental state is being impacted by your current legal issues, you also have a history of emotional problems.'  He opined that your moral reasoning was not impaired and that your intelligence was within normal range.  A comprehensive assessment of your personality and behavioural adjustment indicated some problematic features.

22In his opinion you suffer from a major depressive disorder - with anxious distress - recurrent episodes of moderate severity.  You remain at significant risk of further deterioration in your moods and ongoing psychological treatment is unequivocally warranted.  

23Dr Barth noted further that your pre-existing depressive symptoms, your fragile personality adjustment and your chronic medical problems all suggest that your level of distress would be more severe than would that of a prisoner not facing your psychological and personal challenges.

24I take into account that prison will be more burdensome for you given your age and current psychological and physical state both of which are likely to deteriorate whilst you are in custody.

25I also take into account COVID and the impact it has had in custody, making conditions more burdensome.  Prisoners' movements are more restricted and limits are placed on visitors and the availability of programs.  Although some of these restrictions are now not so severe, the continuation of them remains uncertain at this time.

26I take into account your plea to matters in Indictment J12099413A.  Although the plea was not at an early stage, it has facilitated the course of justice and saved the cost of a trial.  Further, it has more value, having reduced the backlog that has been created as a consequence of COVID with the hearing of matters in this court.

27Additionally, with COVID, there were delays with the trial matter being able to proceed and you have had the matters hanging over your head for a number of years. 

Prospects of rehabilitation

28I accept that given your lack of priors, previous good character and the unique and personal circumstances of this offending that you are unlikely to re-offend and that you have good rehabilitation prospects.  The continued and persistent nature of your offending is of some concern and specific deterrence, though of less weight, remains relevant.

29Current sentencing practices are one factor, amongst others, that must be taken into account in fixing a just sentence.  Reference was made to relevant sentencing statistics for the deception offence but such were not available for perjury or attempting to pervert the course of justice given the very different circumstances that can amount to this kind of offending.  I have considered current sentencing practices where applicable and available. 

Objective seriousness of offending

30As to the objective seriousness of the offending, in R v Buscema, Nettle JA said: 

'Offences of attempting to pervert the course of justice are conceived of as striking at the heart of the justice system and, therefore, as ordinarily necessitating a custodial disposition.  The offence is broadly defined, however, and so may be committed in a wide range of circumstances, and the particular circumstances of each case inform the gravity of the offending.  Circumstances which bear upon the assessment of the nature and gravity of particular offending, and so upon the sentence to be imposed, have been identified as including the following:

'(a), the consequences which the offending was calculated to avoid;

'(b), the time for which the deception was maintained and whether it was actively repeated or persisted in or merely allowed to continue;

'(c), whether the deception involved some other person, either as an accomplice or as a victim;

'(d), whether there was any threat or violence involved;

'(e), whether the offence was spontaneous or premeditated;

'(f), whether the deception resulted in the deception of the court or the creation of false public records and, if so, the extent and consequences of that.'

31Some of these considerations are also relevant to the perjury charges – it is a serious offence as justice cannot be properly administered unless people under oath or affirmation tell the truth.  It is difficult to detect and can produce unjust results which undermines the public confidence in the justice system as a whole. 

32In respect of Charge 1, you stood to gain a significant amount of money – approximately two-thirds of $2.3m, or $1.5m.  You persuaded others to be involved in your fraudulent activities, first by informing them that you had forged their signatures on the 2014 will, then by arranging for them to commit perjury.  Your conduct escalated in order to prove the lie of the 2014 will.

33The period of this offending – it began in June 2016 when you applied for probate in the Supreme Court – your last offence was committed when you attested to an affidavit in VCAT proceedings in February 2017.  Your conduct persisted over this time and you had the opportunity to cease but did not do so.  You persisted in the lie, involved others to commit perjury.  These factors reveal your persistence and the committed course that you adopted to persuade those involved of the validity of the 2014 will. 

34Your charges of perjury were committed in two different curial proceedings and strike at the very heart of the administration of justice.  Each of your perjury charges arises from the false declarations made by you to secure the whole of Ms Hart's estate and to avoid discovery of your dealings with Ms Hart's finances before her death.  Your actions were directed to compromising the administration of justice. 

35Your motivation in respect of the offending was either greed or a misguided sense of entitlement to the whole estate – you stood to inherit significant funds from the estate and you sought more.

36Perjury that occurs on more than one occasion is more serious than that which occurs on the spur of the moment.  The whole of your offending is committed in the curial setting of court proceedings in both the Supreme Court and VCAT.   These offences attack the administration of justice at its core. 

37Given these considerations including the seriousness with which this kind of offending is viewed by the courts, general deterrence, denunciation and just punishment are important sentencing considerations.  I must consider these factors in addition to the other matters set out above including matters personal to you.

38Some of the perjury charges are the basis of the attempting to pervert the course of justice charge and the attempting to gain a financial advantage charge.  There is a degree of overlap in these charges in the sense that Charges 2, 3 and 4 relate to Charge 1; and Charges 6 and 7 are the basis for Charge 5.  Each of these charges relate to your whole conduct in reliance of documents in legal proceedings on the 2014 will, a document you knew to be false.   

39The total number of charges brings into consideration, of course, the issue of totality.  I am cautious to avoid punishing you twice for conduct which falls in the area of overlap.  Whilst an appropriate sentence must be imposed for each offence, with totality, considerations of concurrency are appropriate.  I adopt the approach set out in Haidari by Harper JA that

'When sentences are imposed on numerous offences, the sentencing judge should stand back and look at the overall picture and decide whether the total of what would be otherwise be an appropriate sentence is a fair and reasonable total sentence to impose.'

40In respect of Indictment J1209941, that being the trial indictment, in respect of Charge 1, you are convicted and sentenced to a term of imprisonment of one year.

41In respect of Charge 2 - the perjury, you are convicted and sentenced to a term of imprisonment of 15 months.

42In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of 15 months.

43In respect of Charge 4 - perjury, you are convicted and sentenced to a term of imprisonment of 15 months.

44In respect of Charge 5 - attempt to pervert the course of justice, you are convicted and sentenced to a term of imprisonment of three years.

45In respect of Charge 6 - subordination of perjury, you are convicted and sentenced to a term of imprisonment of 15 months.

46In respect of Charge 7 - subordination of perjury, you are convicted and sentenced to a term of imprisonment of 15 months.

47In respect of Charge 8 - perjury, you are convicted and sentenced to a term of imprisonment of 6 months.

48In relation to the plea indictment J12099413A, in respect of Charge 1 - perjury, you are convicted and sentenced to a term of imprisonment of four months.  And in respect of Charge 2, you are convicted and sentenced to a term of imprisonment of four months.

49The base sentence then in respect of both matters is in relation to Charge 5 - the attempt to pervert the course of justice charge - of three years.  Ten months of the sentence imposed on Charge 2 in the trial indictment will be cumulative, and two months of the sentence imposed on Charge 1 of the plea indictment will be cumulative, giving a total effective sentence of four years.  And I set a non-parole period of 20 months.

50Pursuant to s6AAA of the Sentencing Act, if you had not pleaded to the plea indictment, I would have imposed a term of imprisonment of eight months.  What is the PSD please?

51COUNSEL:  Seventeen days, Your Honour.

52COUNSEL:  That's not including today, Your Honour.

53HER HONOUR:  All right.  I declare 17 days' PSD and I need to formally transfer the summary matters back to the Magistrates' Court. 

54COUNSEL:  Yes, Your Honour.

55HER HONOUR:  What is the date of those please?  They will be for a special mention on 23 February next year with the hearing date on 6 April.

56COUNSEL:  Thank you, Your Honour. 

57HER HONOUR:  Thank you.  Is there anything else?

58COUNSEL:  Nothing further, Your Honour.

59HER HONOUR:  Thank you.  I will just stand down.  Thank you.

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