Maddocks v The Queen
[2011] VSCA 20
•3 February 2011
SUPREME COURT OF VICTORIA
COURT OF APPEAL
No 695 of 2009
| IAN MADDOCKS |
| v |
| THE QUEEN |
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JUDGES: | NETTLE, NEAVE JJA and KYROU AJA | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 3 February 2011 | |
DATE OF JUDGMENT: | 3 February 2011 | |
MEDIUM NEUTRAL CITATION: | [2011] VSCA 20 | |
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CRIMINAL LAW – Sentence – Appellant found guilty of four counts of theft, two counts of obtaining a financial advantage for another by deception and one count of attempting to obtain a financial advantage by deception – Appellant pleaded guilty to four counts of perjury – Judge erred in admitting and relying upon victim impact statements made by non-victims – Sentencing Act 1991, s 95B – No different sentences ought be passed – Appeal dismissed – No point of general principle.
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| APPEARANCES: | Counsel | Solicitors |
| For the Appellant | Mr J D Williams | Victoria Legal Aid |
| For the Crown | Mr B L Sonnet | Mr C Hyland, Solicitor for Public Prosecutions |
NETTLE JA:
I invite Neave JA to deliver the judgment of the Court.
NEAVE JA:
This is an appeal against sentence by the appellant, Ian Maddocks, who was found guilty by a County Court jury of four counts of theft (counts 1, 2, 4 and 7), two counts of obtaining a financial advantage for another by deception (counts 3 and 6) and one count of attempting to obtain a financial advantage by deception (count 5) contained in Presentment number T02084362.2. He was separately presented (Presentment T02084362.3) on four counts of perjury, to which he pleaded guilty.
The offences in the first presentment arose out of the applicant’s activities between 2003 and 2005 as a financial advisor and property developer. During that time, the appellant obtained money from investors for the purpose of developing some land located in Carrum. In May 2003, he was contacted by the victim, Mr Manfred Schmidt, an aged pensioner, who had seen an advertisement in a suburban newspaper seeking investors in the development. The advertisement promised a net return of 100 per cent on capital outlay within 12 months.
After discussing the venture with the appellant, Mr Schmidt advanced $50,000 to the appellant for investment in a property syndicate. The money advanced was used by Mr Maddocks to pay personal expenses. This conduct constituted count 1.
A further $25,000 advanced by Mr Schmidt to the appellant in September 2003 for investment purposes was also used to pay the appellant’s personal expenses. This constituted count 2.
The appellant then urged the victim to advance further sums for investment purposes. When Mr Schmidt said he had little left to invest, the appellant encouraged him to approach a bank for a loan. After being told by the victim that the bank had refused to lend him any money because he had retired and was on the age pension, the appellant arranged a loan for the victim from Violet Home Loans Australia Pty Ltd (‘Violet Home Loans’).
He completed the application forms, falsely representing that the victim was employed and had assets worth $457,000. The victim signed the forms at the appellant’s request, and in May 2004, he received $190,000, which was secured against his house. This conduct constituted count 3.
The victim then advanced $86,095.78 to the appellant from the sum lent to him. This was covered by count 4.
In February 2005, the appellant attempted to obtain a loan of $240,000 from Bluestone Group Pty Ltd on behalf of the victim. He completed the application forms and again misrepresented the victim’s employment status and the value of the victim’s assets. The victim was not aware of the application, which was ultimately withdrawn. This conduct constituted count 5.
At about the same time, the appellant obtained a loan of $42,000 from Mercury STE Pty Ltd (‘Mercury STE’) for the victim after being told by the victim in late 2004 that he was having financial difficulties. The applicant drove the victim to a solicitor’s office and told him to comply with whatever the solicitor instructed him to do. The victim then signed the forms, which the appellant had completed and in which the appellant again falsely represented the victim’s employment status and the value of his assets. This conduct constituted count 6. Count 7 covered the theft of $35,000 which the appellant was given by the victim in February 2005 from the proceeds of the loan.
The perjury counts in the second presentment related to four declarations made by the appellant that he was not the driver of a motor vehicle photographed exceeding the speed limit. The victim agreed to be nominated as the driver and to bear the loss of demerit points.
The appellant was aged between 56 and 58 during the period of offending and aged 62 at the date of sentencing. He had no prior convictions. The appellant had a good employment record. He originally worked as an accountant and later moved into the advertising industry. In 1985, he set up his own advertising and marketing agency, which later ran into financial difficulties.
He then purchased a hospitality supplies company, mortgaging his family home to do so. The business failed and the home and an office building he had previously purchased were lost.
The appellant then re-trained as a financial advisor, and became involved in property development. The learned sentencing judge observed that the offences were committed in circumstances where the appellant was ‘at a low ebb and … experiencing considerable financial pressures’.[1] He had become accustomed to a life-style involving overseas holidays and club membership and was intent on keeping up appearances.
[1]R v Maddocks (Unreported, County Court of Victoria, Judge Coish, 18 June 2009) (‘Reasons’), [20].
Numerous references were tendered on the appellant’s behalf. His two sons spoke of his qualities as a parent and the way in which he shielded the family from his financial difficulties. A friend of over 50 years described his success as a businessman and his honesty and integrity. The offences were said to be out of character. His friend reasoned that the appellant was out of his depth in his role as a financial advisor. The chaplain who has seen the appellant regularly since his time in custody expressed the opinion that prison would be very difficult for the appellant.
At the plea hearing, the appellant relied on a psychological report prepared by Mr Bernard Healey and a letter from his general practitioner, Dr Natasha Livingstone. The judge noted in his sentencing reasons that, although the appellant was suffering from some anxiety and depression, it was not submitted on his behalf that the principles in R v Verdins[2] were applicable. He also noted that the appellant had not exhibited any signs of remorse.
[2](2007) 16 VR 269.
After hearing a plea in mitigation of sentence, the judge sentenced the appellant as follows:
Count
Offence
Maximum
Sentence
Cumulation
Presentment T02084362.2
1
Theft (continuing criminal enterprise offence)
20 years’ imprisonment
15 months’ imprisonment
4 months
2
Theft
10 years’ imprisonment
10 months’ imprisonment
2 months
3
Obtaining financial advantage by deception (continuing criminal enterprise offence)
20 years’ imprisonment
3 years’ imprisonment
Base sentence
4
Theft (continuing criminal enterprise offence)
20 years’ imprisonment
2 years’ imprisonment
6 months
5
Attempting to obtain financial advantage by deception
5 years’ imprisonment
18 months’ imprisonment
4 months
6
Obtaining financial advantage by deception
10 years’ imprisonment
12 months’ imprisonment
3 months
7
Theft
10 years’ imprisonment
12 months’ imprisonment
3 months
Presentment T02084362.3
1
Perjury
15 years’ imprisonment
6 months’ imprisonment
2 months
2
Perjury
15 years’ imprisonment
6 months’ imprisonment
3
Perjury
15 years’ imprisonment
6 months’ imprisonment
4
Perjury
15 years’ imprisonment
6 months’ imprisonment
This amounted to a total effective term of 5 years. His Honour imposed a non-parole period of 3 years.
The appeal
The appellant relies on the following grounds of appeal:[3]
1.The learned sentencing Judge erred by taking into account the content of the victim impact statements made by persons other than Mr Schmidt.
2.The sentences imposed are manifestly excessive.
3.The learned sentencing judge erred in making orders for cumulation on counts 4 and 7.
[3]Leave to appeal against sentence was granted on 28 May 2010. Maxwell P granted leave on the basis of ground 1, which is set out below.
Conclusion
The Crown has correctly conceded that ground 1 is made out. Section 95B(1) of the Sentencing Act 1991 provides as follows:
95B Contents of victim impact statement
(1)A victim impact statement contains particulars of the impact of the offence on the victim and of any injury, loss or damage suffered by the victim as a direct result of the offence. (Emphasis added)
In his sentencing reasons his Honour said that he had taken account of ‘the numerous victim impact statements tendered in evidence’ which describe the significant financial consequences of the appellant’s actions on many people.[4] Victim impact statements were made by Ms Webster and Messrs Peterson and Ford, each of whom invested in the syndicate to develop properties in Carrum, by Mr de Groot, the appellant’s partner in the property development, and by Mr Philip Steele, who managed the company which advanced moneys to Mr Schmidt, Mercury STE.
[4]Reasons, [21].
The investors in the property syndicate lost their monies because the property development plan was unsuccessful. The appellant was not prosecuted for theft or obtaining financial advantage by deception from these investors. Thus the losses suffered by the investors in the property syndicate were not the direct result of the theft of Mr Schmidt’s monies or the deceptive statements made to Violet Home Loans or Mercury STE, although Mr Schmidt handed over money to the appellant in the belief that he was investing in the property syndicate.
The Crown concession did not extend to the victim impact statement of Mr Steele, who managed the company which loaned Mr Schmidt $42,000 after being deceived by the appellant. Counsel for the Crown submitted that the loss suffered by Mr Steele was a direct result of the appellant’s offending and therefore admissible. That submission is probably correct, but nothing turns on it.
Because of the Crown concession, it is only necessary to make brief reference to ground 3. Ground 3 alleges that the sentencing judge erred by ordering that 4 months of the sentence imposed on count 4 (theft of $86,095.78 from Mr Schmidt) be cumulated on count 3 (obtaining financial advantage for another from Violet Home Loans). A similar complaint was made about the order for 3 months’ cumulation of the sentence imposed on count 7 (theft of $35,000 from Mr Schmidt) on the sentence imposed on count 6 (obtaining a financial advantage for another by deception of Mercury STE). Counsel for the appellant submitted that his client should have been sentenced on the basis that there were only two separate incidents of criminality, each of which included the making of a false statement to obtain a loan of moneys which were then stolen from Mr Schmidt.
We would reject ground 3. Mr Schmidt was the victim of the thefts, whilst the appellant’s misleading statements about Mr Schmidt’s financial position resulted in Violet Home Loans and Mercury STE advancing money to Mr Schmidt, which is unlikely to be recovered. The orders for cumulation were modest and recognised that the theft and obtaining financial advantage counts affected different victims.
Since the judge wrongly took account of the victim impact statements made by the investors in the property development, the Court must consider whether the appeal should be allowed and the appellant re-sentenced. Count 1 (theft), count 3 (obtaining a financial advantage by deception) and count 4 (theft) are continuing criminal enterprise offences to which the maximum penalty of 20 years’ imprisonment applies.
The maximum penalty applying to counts 2 and 7 (theft) is 10 years’ imprisonment as is the maximum penalty for count 6 (obtaining a financial advantage by deception). The maximum penalty for count 5 (attempting to obtain financial advantage by deception) is 5 years’ imprisonment.
The judge referred to a number of mitigating factors in sentencing the appellant. Error having been conceded, the appellant’s counsel submitted that these mitigating factors justified a reduction in his sentence. The appellant has been a good citizen for most of his life, though prior to being sentenced for these offences, he had appeared in the Magistrates’ Court in 2002/2003 for theft of minor items from a shop and in 2008 for having stolen newspapers worth $12 from his neighbour. Findings of guilt were made but apparently no convictions were recorded.[5] As a result of his conviction for the offences covered by this appeal his marriage is over. He will be aged 64 when he completes his term of imprisonment and will have no financial resources. He will also be unable to resume his previous career in finance or accounting. There was a delay of almost four years between July 2005, when he was interviewed by police, and June 2009, when he was sentenced. He pleaded guilty to the perjury counts; and the judge considered he had reasonable prospects of rehabilitation.[6]
[5]The appellant had also been placed on a bond in 2000 for taking another’s golf clubs after an altercation in the car park of a golf club. Details of these previous court appearances were obtained from the plea transcript and Mr Healey’s psychological report.
[6]Reasons, [22].
On the other hand, these were serious offences, which involved the callous and systematic exploitation of a vulnerable and financially unsophisticated victim over almost two years. The victim, whose background was not a privileged one, is an elderly man who faces a bleak financial future. The judge’s finding that the appellant was not remorseful was entirely justified.
Having regard to all of these matters, I do not consider that different sentences should be imposed on the appellant. Accordingly, I would dismiss the appeal.
NETTLE JA:
The order of the Court is that the appeal is dismissed.
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