Director of Public Prosecutions v Taylor
[2020] VCC 176
•28 February 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-19-01816
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| GRANT TAYLOR |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 20 February 2020 |
| DATE OF SENTENCE: | 28 February 2020 |
| CASE MAY BE CITED AS: | DPP v Taylor |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 176 |
REASONS FOR SENTENCE
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Subject:Plea - sentencing
Catchwords: Obtain property by deception - obtain financial advantage by deception
Legislation Cited: Sentencing Act 1991
Cases Cited:
Sentence:5 years and 9 months’ imprisonment, 3 years and 6 months non-parole
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APPEARANCES: | Counsel | Solicitors |
| For the DPP at hearing For the DPP at sentence | Dr J. Harkess Ms A. Birkin | Office of Public Prosecutions |
| For the Accused | Mr D. Sala | Balmer & Associates |
HIS HONOUR:
1Grant Taylor, you have pleaded guilty to six charges of obtaining property by deception and four charges of obtaining a financial advantage by deception.
- Each of these offences carries a maximum penalty of 10 years’ imprisonment.
- However on Charges 1, 2, 4, 5 and 7 of Obtaining Property by Deception and Charges 3, 6 and 9 of Obtaining a Financial Advantage by Deception you stand to be sentenced as a Continuing Criminal Enterprise offender, so there is a substituted maximum penalty on those charges of 20 years’ imprisonment. I will go into more detail on this aspect of your sentencing later.
- As Charge 8 of Obtaining Property by Deception and Charge 10 of Obtaining a Financial Advantage by Deception are ‘rolled up’ charges, the Continuing Criminal Enterprise provisions do not apply and each is subject to the maximum penalty of 10 years.
2You were born on 20 October 1952 and are now 67 years old. You were aged from 54 to 62 at the time of the offending.
3You do not have any prior criminal history.
4You pleaded guilty to all charges presented following a committal hearing on 9 September 2019.
5As to background to this matter, at the time of the offending you had been working in financial planning for over 30 years. You owned and operated a financial services business trading under the name ‘TFG Financial Solutions’. You were the Chief Executive Officer of the business and a director and major shareholder of the corporate entities through which the business traded.
6As the CEO of TFG you oversaw the direction of the business, which included managing more than 20 employees, introducing new clients to the business and occasionally undertaking personal planning advice and transactions for individual clients.
7You were licensed to provide financial advice from 1 December 2003 until 20 June 2013. You held your licence in your capacity as a duly authorised representative of GWM Adviser Services Limited, a wholly-owned subsidiary of the National Australia Bank Limited.
8The details of your offending are as follows. The victims in this case are individuals who sought financial planning advice from you. They each entrusted you to invest and deal with their money in accordance with tailored investment plans that had been agreed to after receiving your financial advice.
9For the relevant period of offending you, by your words and conduct, consistently held yourself out to your victims to be:
a) authorised to provide financial services advice;
b) acting in their best interests with respect to managing their personal finances;
c) acting in accordance with their instructions in relation to the investment of their funds; and
d) acting in accordance with standard practices in the financial services industry.
10There are six individual victims who were directly affected by your conduct.
11Ms Camilleri entrusted you with deposits of $700,000, $250,000 and $50,000 between August 2007 and May 2015. When she discovered that the funds were gone you lied to her, telling her that a disgruntled employee had made a false report to police. When pressed by her son, you admitted that all the portfolio reports you had provided over the years were false. Ms Camilleri was still in bereavement for her husband at the time of the discovery of the loss and has described the stress she then experienced as “horrendous”. Your conduct in respect of Ms Camilleri is represented by Charges 1, 3 and 9.
12Ms Harris entrusted you with $80,000 in April 2009. It was deposited into your own personal account. This conduct is represented by Charge 2.
13Ms Partridge came to know you through her partner Mr Foster. She also was persuaded to place funds with you for the purpose of setting up a self-managed superannuation fund. Ms Partridge provided a cheque in the sum of $490,000 to you for that purpose. You advised her that the money would be invested in shares and cash. Instead, you deposited Ms Partridge's funds into an account owned and controlled by you. This conduct is represented by Charge 5.
14Mr Foster you have known for some 60 years. You were at school together and he was a close friend of your brother. Mr Foster transferred $230,000 to you for the purpose of establishing a self-managed superannuation fund. You instead deposited the money into an account owned and controlled by you. This conduct is represented by Charge 6.
15As to Charge 7, Mr Brewster has known you since 1981 when you were a pastor at his local church in Eltham. Mr Brewster became aware that you were a financial planner, so he sought your advice. Mr Brewster provided a cheque for $200,000 to you with instructions that $100,000 was to be deposited into a self-managed superannuation fund for Mr Brewster's benefit and the balance of $100,000 was to be applied to 'Project Compassion' - which was suggested by you to be a charitable organisation that helped children in poor countries.
16As to Charge 8, Mr Brewster subsequently provided a further five cheques totally $48,000 that he instructed you to also apply to Project Compassion
17Ms Forsayeth has known you since 1995 and maintained contact with you over many years. She provided funds to you on the basis that they were to be deposited in an account in her name and to be applied to investments that would be beneficial to her. On 24 February 2014 she provided a cheque to you for $78,000. You deposited the cheque into an account held in the name of Taylor Financial Group, the company that was owned and controlled by you and your wife. This conduct is represented by Charge 4.
18Between 11 August and 15 August 2015, Ms Forsayeth provided you with a further three cheques for investment purposes totalling $60,000. You also deposited that money in the Taylor Financial Group account controlled by you. This conduct is represented by Charge 10.
19There is also a corporate victim in this case which has been affected by your offending. The National Australia Bank's financial services arm, GWM, placed itself in a vulnerable position by authorising you to act as a financial planner on its behalf. It ultimately accepted liability in relation to the individual victims' claims relating to the money that they had lost as a result of your offending conduct. The National Australia Bank settled these claims for in excess of $2m.
20Now, in relation to each of Charges 1 to 10:
(a)you did not invest the victim’s money in accordance with their investment instructions;
(b)you used the funds as your own, though you were not authorized by the victim to receive and apply the funds in the way that you did;
(c)you maintained the deceit by:
(i)providing the victim with false investment statements in writing and/or oral advice concerning investment performance;
(ii)providing periodic ‘withdrawals’, as and when requested by the victim; and
(iii)reassuring the victim as to their investment’s performance in the event of any concerns raised by the victim.
21The total amount of money that was misappropriated by you in relation to Charges 1 to 10 is $2,186,000.
22The victim impact statements tendered provide eloquent testimony to the emotional stress and pain caused by this type of offending.
23I now turn to your personal circumstances.
24As I noted earlier, you are now 67 years old, you were aged from 54 to 62 at the time of offending and you have no criminal record.
25You overcame difficult family circumstances in your youth, including family rejection and disinterest because of your stepfather's alcoholism and mental health in combination with your mother's guilt concerning the circumstances of your birth. You never knew your biological father. You were also the victim of sexual abuse.
26With resilience, and much hard work, you managed this adversity and ultimately developed a very successful career in business in the financial advisory sector. You have otherwise led an exemplary life, characterised by a commitment to your work, your family, your community and your church. The personal testimonies tendered speak of an exceptional community contribution through selfless acts of kindness and generosity to many people.
27Paradoxically to the commendable aspects of your life, you also engaged in serious criminal offending. The type of offending in which you were engaged is well-recognised as difficult to detect, and requires the expenditure of significant amounts of time and resources to investigate and ultimately prosecute.
28Whilst your offending was relatively unsophisticated, it remains serious. It was calculated, planned and quite cruelly exploited the trust which you held by the persons whose interests you were expected to protect. In that sense it did not need to be complicated because of your position and reputation in financial advice, as well as the great personal estimation in which you were held because of your otherwise selfless behaviour towards others. People believed in your goodness.
29The offending was repetitive, involved a significant amount of money and extended over a period of almost nine years. The individual victims are ordinary hard-working people who had placed a considerable amount of their personal finances into your trust. Your victims can be regarded as vulnerable because:
i. they relinquished full control of large amounts of their personal wealth to you;
ii. you held yourself out to be somebody they could trust to act in their best interests in dealing with their money;
iii. they believed you because of your professional reputation and experience, and your standing in the community;
iv. they were retirees or semi-retired and most likely did not have the knowledge or expertise to detect any impropriety, nor the confidence to effectively challenge you in the event that they suspected any irregularities in the way in which their money was being applied;
v. in one case, the victim wanted to donate a significant amount of money to a charity - instead, you used it for your own business ends;
vi. in another case, a victim provided you with funds she had received as a result of compensation from the Catholic Church as being a victim of historic sexual abuse - when she was out of the country and needed funds for cancer treatment, her calls to you for the withdrawal of her funds went unanswered.
30The only explanation for your behaviour was essentially weakness in succumbing to use deceitful and illegal means for business ends.
31You also failed to disclose to any of your victims that you ceased holding a licence as a financial services advisor on 20 June 2013. This circumstance was in effect in respect of Charges 4 to 10.
32Whilst the most vulnerable individual victims’ suffering has been ameliorated by full financial restitution, the commercial victim remains uncompensated. Given your current financial circumstances, age and future financial prospects, this is likely to remain the case.
33In mitigation, I have considered all the matters urged by your counsel and, in particular, taken into account:
· your plea of guilty and the time in which it was entered - your plea has a utilitarian value by having saved the community the expense and time of what otherwise might have been protracted proceedings involving inconvenience and trauma to witnesses, has given certainty of outcome to the community and to the victims and is also capable of being accepted as evidence of some remorse;
· your previous good character demonstrated by the absence of any previous offending and the references to your good character from the testimonials tendered and from the evidence of witnesses given during the course of the plea;
· your history of care in the community, both pastoral and by opening your home and family to the disadvantaged;
· the close support you have from your wife, your children, friends and others in the community;
· the loss of your business, your home and financial security;
· your age and reduced health following your stroke;
· your expressions of remorse as evidenced by examples in the character evidence and your own expressions of apology made on oath in court; and
· the personal resilience and hard work you have demonstrated by your ability to overcome a difficult beginning in life, develop a business which supported others and raise and care for an extended family - these characteristics can be considered in support of your prospects of rehabilitation which I consider are good.
34Your counsel has submitted that a sentence of imprisonment with provision for an extended period of parole should be imposed.
35The prosecution has submitted that substantial gaol time is warranted.
36I have considered each of these submissions in arriving at the sentence now imposed.
37The basic purpose or purposes for which a court may impose a sentence are punishment, deterrence - that is both specific, to deter you from future similar conduct and also general, to deter others that might be like-minded - rehabilitation, the denunciation of your conduct by the court and the protection of the community.
38In sentencing, I have regard to a range of matters such as the maximum penalty for the offences, the nature and gravity of the offences, your culpability and degree of responsibility for the offences, your personal circumstances and those of the victims, all in the context of current sentencing practices. Each factor must be balanced in order to impose a sentence that is just in all the circumstances.
39I am required to balance the interests of the community in denouncing and punishing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
40Under the continuing criminal enterprise offenders provisions of the Sentencing Act 1991, on your being found guilty on three continuing criminal enterprise offence charges, I am required on all of the continuing enterprise offence charges to have regard to the substituted maximum of 20 years' imprisonment. I note that this sentencing basis applies to your offending on Charges 1 to 7 and Charge 9.
41In arriving at the total effective sentence, and in particular having regard to your categorisation as a continuing criminal enterprise offender being sentenced for continuing criminal enterprise offences, I have given careful consideration to the principals of totality and proportionality.
42Mr Taylor, could you please now stand.
43On Charge 1 of obtaining property by deception, you are convicted and sentenced to 4 years' imprisonment.
44On Charge 2 of obtaining property by deception, you are convicted and sentenced to 18 months' imprisonment.
45On Charge 3 of obtaining financial advantage by deception, you are convicted and sentenced to 2 years' imprisonment.
46On Charge 4 of obtaining property by deception, you are convicted and sentenced to 18 months' imprisonment.
47On Charge 5 of obtaining property by deception, you are convicted and sentenced to 3 years' imprisonment.
48On Charge 6 of obtaining financial advantage by deception, you are convicted and sentenced to 2 years' imprisonment.
49On Charge 7 of obtaining property by deception, you are convicted and sentenced to 2 years' imprisonment.
50On Charge 8 of obtaining property by deception, you are convicted and sentenced to 12 months' imprisonment.
51On Charge 9 of obtaining a financial advantage by deception, you are convicted and sentenced to 12 months' imprisonment.
52On Charge 10 of obtaining financial advantage by deception, you are convicted and sentenced to 12 months' imprisonment.
53Charge 1 is the base sentence. I direct that 3 months of each of the sentences imposed on Charges 2, 6 and 7 and 6 months of each of the sentences imposed on Charges 4 and 5 be served cumulatively on the sentence imposed on Charge 1 and upon each other. The sentences are otherwise concurrent.
54The total effective sentence is 5 years and 9 months' imprisonment.
55I direct that you serve a minimum of 3 years and 6 months' imprisonment before being eligible for parole.
56I also direct, pursuant to s.6J of the Sentencing Act, that it be entered into the records of the court that I have sentenced you in respect of Charges 1 to 7 and Charge 9 for continuing criminal enterprise offences within the meaning of that Act.
57The sentence starts today.
58Pursuant to s.18(4) of the Sentencing Act 1991, I declare that the period of 8 days, not including today, be reckoned as time already served under this sentence and I direct that the fact of this declaration and its details be noted in the records of the court.
59For the purposes of s.6AAA of the Sentencing Act, but for your plea of guilty the sentence that would have been imposed is a term of imprisonment for 7 years and 6 months with a non-parole period of 5 years.
60You may be seated for the moment, Mr Taylor.
61At the plea hearing, the Crown sought an order for a forensic sample and I make that order today for the reasons noted on the order, namely, that the seriousness of the offending warrants the making of the order, the order is not opposed and the making of the order is in the public interest.
62I also need to inform you that, if at the time of the request for the sample you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted. Do you understand that, Mr Taylor?
63OFFENDER: Yes.
64HIS HONOUR: Thank you.
65At the plea hearing, there was also an application for a forfeiture order to which you have now consented and I will sign that order once I leave the Bench today. Are there any other matters from counsel?
66MR SALA: No other matters, Your Honour.
67MS BIRKIN: No, Your Honour.
68HIS HONOUR: Thank you both.
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