R v Coleman
[2013] VSC 548
•25 OCTOBER 2013
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S CR 2013 0092
| R |
| v |
| ANTHONY ROBERT COLEMAN |
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JUDGE: | DIXON J | |
WHERE HELD: | MELBOURNE | |
DATE OF HEARING: | 9 OCTOBER 2013 | |
DATE OF SENTENCE: | 25 OCTOBER 2013 | |
CASE MAY BE CITED AS: | R v COLEMAN | |
MEDIUM NEUTRAL CITATION: | [2013] VSC 548 | |
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Criminal law – sentencing – deficiency in trust account – theft – obtain financial advantage by deception – legal practitioner – plea of guilty – misuse of position of trust – Verdins principles 5 and 6 applying – total effective sentence of 5 years’ imprisonment with non-parole period of 3 years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms S. Borg | Mr C. Hyland, Solicitor for Public Prosecutions |
| For the Accused | Mr B. Bourke with Mr R. Lawson | Mr A McMonnies |
HIS HONOUR:
Anthony Robert Coleman, you have pleaded guilty before me to one count of having a deficiency in your trust account contrary to s 3.3.21 of the Legal Profession Act 2004, one count of theft contrary to s 74(1) of the Crimes Act 1958 and 12 counts of obtaining a financial advantage by deception contrary to s 82(1) of the Crimes Act 1958. It is now my responsibility to sentence you for those offences.
The maximum penalty on the charge of having a deficiency in your trust account is 15 years’ imprisonment. The maximum penalty on the charge of theft is 10 years’ imprisonment and the maximum penalty on the charges of obtaining a financial advantage by deception is 10 years’ imprisonment. Other ancillary orders have been sought against you and I will come to those later. I will begin by explaining the circumstances of your offending.
You were admitted to practise as a barrister and solicitor of this court on 1 July 1998. At the time you committed each of these offences you held a Victorian practising certificate that permitted you to manage trust moneys and practised as a sole practitioner under the firm name ‘Coleman Lawyers’. It appears your practice included conveyancing, wills and estates matters, commercial transactions and criminal advocacy.
In 2001, you were introduced to Eric Charles Smith, for whom you drew a will. Smith appointed a neighbour as his executor and trustee although the will provided that you were to serve as executor and trustee should that person fail or cease to act in her appointed role. The will provided, after a legacy to the neighbour, for the residual estate to be divided between five charitable beneficiaries. It also provided the opportunity for your offending, permitting you to develop a fraud first practiced by creating a false identity and false conveyancing transactions.
In November 2001, you purchased a property in Casterton using a fictitious identity, an investor client ‘Robert Cole’. You established an account at the NAB in Cole’s name and in January 2002, lodged a first home owner’s grant application on behalf of Cole regarding the acquisition of the Casterton property. The application was accepted and you received $6,696 (charge 11).
On 1 April 2002, you created fraudulent documents which transferred the Casterton property to Ms Buchanan, your then de facto partner. You also lodged a first home owner’s grant application in Ms Buchanan’s name. On 25 July 2002, the sum of $6,832 was paid into Buchanan’s NAB account (charge 12).
At about the same time, you applied for a credit card in Cole’s name supported by fictitious employer references which you created. Between 1 July 2002 and 26 July 2002, you made 20 ATM withdrawal transactions using that credit card resulting in a bad debt of $21,388.01, that was ultimately written off by the NAB (charge 13).
Then, on 25 September 2002, Eric Charles Smith died. The neighbour renounced her entitlement to apply for probate of the will and you then applied for probate yourself. In doing so, you swore that Smith’s assets, totalling $219,524.37 in value, consisted of a unit in Murray Street, Brunswick West at an estimated value of $140,000 and two bank accounts with the Commonwealth Bank with a total balance of approximately $81,000. As executor, you closed those bank accounts and transferred the funds into your Commonwealth Bank practice trust account, in the name of the estate of Eric Charles Smith.
It appears that the charitable beneficiaries of Smith’s will were never informed of the terms of his will. Between 13 February 2003 and 26 March 2004, you depleted the funds in the estate bank account by payments falling into three categories. You paid the legacy left by Smith to his neighbour. You paid the debts of Smith’s estate and you paid the balance of the funds, $32,731.78, to yourself or for your benefit (charge 1). In distributing these funds other than in the proper administration of the estate of Smith, you, as a legal practitioner and without reasonable excuse, caused a deficiency of trust money on the 16 occasions that you created and distributed a cheque to a non-estate beneficiary. Ten payments were made to you personally, three payments were made to your then partner, Ms Buchanan, and three payments were made in discharge of your debts (charge 2).
On 24 June 2003, you transferred the Murray Street unit into your name as executor of Smith’s estate. Some weeks prior to that transfer, you had created a second fictitious identity, ‘Pat Bateman,’ by preparing a false electoral commission application. You then transferred the Murray Street unit to Pat Bateman for an apparent consideration of $103,000. No funds were deposited into the estate bank account and no moneys were distributed to the beneficiaries.
On 20 August 2003, you created and lodged a first home owner’s grant application in the name of the fictitious Pat Bateman. Having created a NAB account in his name, you deceived the State Revenue Office into paying a first home owner’s grant to Bateman’s NAB account from where it was appropriated for your own use and you obtained a financial advantage of $4,728 (charge 3).
About a year later, in June 2004, you created a third fictitious identity, ‘Craig Young’. It appears that you saw an opportunity to first exploit the identity of a known person. Ms Kaylene Nugent was known to you as the de facto partner of your friend and client Harun Ozgur. You obtained a copy of her driver’s licence. You arranged another fraudulent transfer of the Murray Street property from Bateman to Ms Nugent. On 30 September 2006, you made yet another first home owner’s grant application, this time in Ms Nugent’s name. This would later prove to be your undoing. Again, you prepared false documents for that application supported by a copy of Ms Nugent’s driver’s licence, which you had certified in your capacity as a legal practitioner. You had also created false contracts and Titles Office instruments. On 4 October 2004, you received $9,901 from the State Revenue Office in respect of the Nugent application (charge 4).
When Ms Nugent authorised you to prepare a tax return on her behalf, you procured her signature on an authority to pay her tax refund into your joint account with Ms Buchanan. In this way, you obtained a financial advantage of $3,221.50 (charge 5).
In July 2005, you arranged a third fictitious transfer of the Murray Street unit from Ms Nugent to the fictitious identity of Craig Young that you had created a year earlier. Again, you prepared false documents to open a NAB account in Young’s name, prepared fictitious contracts and conveyancing documents to transfer title and you made yet another first home owner’s grant application. You received the sum of $9,776 in respect of this fictitious Young application (charge 6).
With the property now registered in Young’s name, you leased it out and between 16 August 2005 and 6 July 2007 various tenants, on your instruction, paid rent directly into the Young bank account at the NAB. These moneys were withdrawn by you over time and nothing was received by Smith’s beneficiaries. In this way you obtained a financial advantage of $16,432.50 from the beneficiaries of Smith’s estate (charge 7).
Consistent with your methodology, at the time of the transfer from Nugent to Young, you created a fourth fictitious identity by a falsified electoral commission application and on 1 August 2005 the fictitious ‘Max Power’ was created.
On 29 May 2006, the Murray Street unit was transferred from Young to Max Power. You created and certified false documents to achieve this transfer of title. In September 2006, you prepared a false first home owner’s grant application in the name of Power in respect of this fictitious acquisition. You set up another NAB account in the name of Power. The Power first home owner’s grant application was paid in September 2006. In this manner, you obtained a financial advantage of $9,764 from the State Revenue Office (charge 8).
Then in 2007, you decided to dispose of the Murray Street property and appropriate the proceeds of sale. You engaged an estate agent on behalf of the fictitious Power to sell the property and a purchaser was found at a price of $214,000. When that sale settled, you received $203,200.21, which was paid into an account named ‘Coleman Lawyers’ with the NAB. Some days later, you withdrew $199,828 from that account and deposited it into an NAB account jointly owned by you with Ms Buchanan.
In December 2007, the funds in that joint account were used with other moneys to purchase a property at 85 Esplanade, Altona for approximately $900,000. These funds were properly assets of the estate of Smith to which the residual beneficiaries were entitled. You obtained a financial advantage by deception being the deposit of $10,700 (charge 10) and the balance after an allowance for appropriate costs of selling and distributing the estate of $189,531.21 (charge 9).
Unsurprisingly, except perhaps to your counsel, because you no longer had a property to use for fictitious transactions, your criminal conduct then ceased, but there is a remaining matter to mention that had earlier occurred.
In March 2006, you purchased a property at Point Cook in your own name. In June 2006, you transferred this property to another fictitious person that you created, ‘Kylie Ann Moore.’ From the original vendors, the consideration nominated in the transfer was natural love and affection. Some months later, you prepared and lodged a further transfer from Moore to yourself, again, for consideration described as natural love and affection. In each case, your fictitious identity Pat Bateman witnessed relevant signatures. Using this false documentation and the fictitious identities, you avoided paying government taxes totalling $6,000 and thereby obtained a financial advantage by deception (charge 14).
In summary, your conduct has involved creating five fictitious identities, manipulating the identity of an unknowing victim, Ms Nugent, creating three false bank accounts and one false credit card account, preparing false documentation for and submitting six applications for first home owner’s grants and preparing falsified conveyancing documents that included instruments of transfer, contracts of sale and statutory declarations.
The degree of planning and calculation involved in this repeated conduct demonstrates significant culpability. You chose to reoffend, not to cover up your past offending, but to obtain a further benefit for yourself. Acting in you capacity as a solicitor, you falsified the electoral register to create false identities. You deliberately falsified public land title records in order to perpetrate your frauds. You cheated the systems for identification of the true owners of bank accounts and you prepared false declarations, contracts and applications for taxpayer funded grants. You appropriated to yourself the assets of a deceased estate and used it as a vehicle for further fraud. Your offending was repeated over five and a half years. This planned and premeditated conduct was facilitated by your position as a solicitor and involved a gross breach of trust of your oath and obligations as a solicitor on each occasion. The total amount you received, approximately $327,700, falls well short of some massive defalcations committed by other dishonest solicitors but your nefarious activities remained concealed for almost a decade after you first crossed the line.
Your crimes may have gone undetected but for your appropriation of Ms Nugent’s identity. In her victim impact statement she has explained the anguish and the distress that she suffered when, after finally purchasing a property in her own name, her first home owner’s grant application was declined, leaving her with inadequate funds but committed to a contract of sale. Her statement explains that as well as direct financial loss she has suffered depression and anxiety. She was distressed that you had appropriated not only her tax refund, but also her identity, when she was suffering significant ill health.
There is no direct evidence of your motivation. On the one hand, psychiatric reports tendered in evidence reveal that as your practice became more focussed on criminal defence work you developed some admiration for some of your criminal clients who have led lavish lifestyles and attracted the attention of women. You have reported to a psychiatrist, Professor Mairead Dolan, that you socialised with some of your admired criminal clients. On the other hand, the evidence given by your psychiatrist, Dr Thomas, which is confirmed by other medical reports that have been tendered on your plea, is that you have a bipolar affective disorder, which is mainly depressive in nature.
On your behalf, your counsel submitted that your bipolar disorder had impaired your judgment at the time of your offending and that your moral culpability was reduced. In making that submission they relied on R v Verdins.[1] Despite your apparent ability to maintain your practice, which is attested to by a number of your character references, I was invited to assume that the condition about which Dr Thomas gave evidence has been an ongoing condition. I am not persuaded to accept this submission because the evidence on your plea does not enable me to direct my attention as to how your bipolar condition is likely to have affected your mental functioning in the particular circumstances of your offending that is, during the period from January 2002 until July 2007.
[1]R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269.
Dr Thomas told me that you first consulted him in November 2011 and that he has seen you regularly throughout 2012 and 2013. He described it as characteristic of your condition that the sufferer seeks medical assistance when in a depressed state. That was the state you were in when he first saw you. Dr Thomas gave evidence of the history of your condition mainly drawn from what you have reported to other medical practitioners, whose reports were also tendered on your plea. It seems that you were first treated for depression in 1997 when you were in the army. That period of treatment coincided with allegations of intimidation and sexual harassment made against you. You presented to Dr Norman Lewis in June 2004 with violent thoughts and fantasies, including homicidal ideation. This presentation was during the period of your offending but the evidence does not establish any realistic nexus between your mental state when consulting Dr Lewis and your offending at that time, which is the subject of charges 3 and 4, let alone your offending that is the subject of the remaining charges.
On the evidence, that you ceased criminal behaviour in mid 2007 is not related to your bipolar disorder at that time. Indeed, the evidence suggests it is probable that your bipolar disorder has developed in more recent times in response to anxiety and depression following on facing up to the consequences of your criminal activities. The more probable explanation is that having sold Murray Street, and used the proceeds to acquire the Altona property, you no longer had a property available to you for use in fictitious transfers and home owner grant applications.
You were born on 31 May 1966 and are now 47 years of age. Since 2001, you have lived in a de facto relationship with Fiona Buchanan, who was present in court supporting you on your plea. You have four children from two previous marriages. You have provided me with a detailed statement outlining your personal history including the circumstances of your upbringing, your life at university and your working life prior to setting up your own practice. I do not propose to rehearse these matters, which I have taken into account in your favour.
In relation to your medical condition, referring to both your bipolar condition and your diabetes, your counsel urged me to accept that a given sentence would weigh more heavily on you than upon a person in normal health and that there is a serious risk that imprisonment may have a significant adverse effect on your mental health, factors which tend to mitigate the appropriate punishment.
Returning to Dr Thomas’ evidence, he told me that your condition has stabilised with treatment and you have improved considerably. You are lucky to have no issues with non-prescription drugs and to have brought your past propensity to drink heavily under control. Your prognosis is good provided you continue with your treatment and your medication. That treatment includes cognitive therapy to control and readjust back to normal your disturbed thought processes. I accept that you suffer from claustrophobia particularly when depressed and that there is a risk that imprisonment may enliven your problems with claustrophobia and cause a relapse in your condition. I will take that matter into account with an appropriate allowance in your favour.
You have produced a number of character references and your referees, aware of your conduct, express their surprise at the out of character nature of your behaviour. It is clear that you are intelligent, well educated and that you have contributed in the army, at golf clubs, and elsewhere. While I accept the opinions of your referees about your character, it is unsurprising that an offender in your circumstances is supported by strong character references. I accept that you are a person of previous good character. You have no prior convictions. However, as the Court of Appeal said in R v Coukoulis, although the fact that you have had no prior convictions is of importance, it must be recognised that your reputation and position as a legal practitioner enabled your offending.[2] Whilst your previous good character has some broad relevance, it is of little weight when dealing with a breach of trust by a solicitor who is an officer of the court.
[2][2003] VSCA 22, 22-23 [42].
Your referees also speak of your genuine remorse for your conduct. Your remorse was not evident from any voluntary disclosure of your conduct or from your record of interview, but I accept that you are remorseful to a significant degree on the evidence of your early guilty plea, which has not only had utilitarian benefit in avoiding a contested committal and a trial but demonstrates that your remorse is genuine. I will take your early guilty plea and remorse as mitigating factors in setting your sentence.
You have lost your career, effectively on the appointment of receivers to your legal practice in July 2012. The fact that you will lose your right to practise your profession, though relevant, is of little significance when the offence itself constitutes a breach of trust by a solicitor.[3] Being satisfied that you are not a fit and proper person to be a legal practitioner and will likely remain so for the indefinite future,[4] I will order that your name be removed from the Roll kept by the court of persons admitted to the legal profession. Although you have consented to such an order, the exercise of the court’s inherent jurisdiction to do so requires my independent consideration of why that is appropriate.[5] I am satisfied that your name should be struck off the Roll because it is of utmost importance that public confidence in the legal profession be maintained. Legal practitioners play an integral part in the administration of justice. Your obligation included a duty to uphold the law, a duty to this court, a duty to your clients and, more generally, to members of the public. High standards are demanded from legal practitioners and your conduct in committing these offences, particularly their character of dishonesty, established that you are not a fit and proper person of sufficient moral integrity and rectitude of character to be accredited to the public as a person who can be entrusted to perform the work of a solicitor.
[3]R v Howse [2002] VSC 197, 10 [38].
[4]Legal Services Board v McGrath [2010] VSC 266, [9]-[10]; Legal Services Commissioner v Nguyen [2013] VSC 443, [3].
[5]Re An application by a Solicitor [1966] 1 NSWR 42, 43.
Your counsel invited me to assume, in your favour, that, ultimately, there will be some measure of restitution to your victims. While that outcome may eventuate in the future, I do not regard it as a mitigating factor to your benefit. I propose to order pursuant to s 86 of the Sentencing Act 1991 that you pay compensation in the sum of $3,221.50 to Kaylene Nugent. I will order that you pay compensation in the sum of $47,697 to the State Revenue Office of Victoria. You do not oppose the making of these orders.
An application for compensation has been made by counsel representing the residual beneficiaries of the estate of Smith. I am satisfied that, speaking generally,[6] those beneficiaries have suffered loss as a result of your offending which I assess as follows. First, the net proceeds appropriated from the deceased’s bank accounts after payment of his debts total $32,731.38. Second, there is the rent you received on the Murray Street property in the sum of $16,432.50. Third there is the lost capital value of the Murray Street property. The only objective evidence of the value of that property that is before me is the price achieved on the legitimate sale in 2007. After somewhat generously allowing you the reasonable costs of estate administration, the Crown has assessed the net value of the proceeds of that sale at $200,231.21. I accept that figure as the best evidence of the loss of the Murray Street property in mid 2007. I do not regard these assessments as a complete assessment of the entitlements of the beneficiaries against you for breach of your fiduciary duties towards them.
[6]It appears that there has not been any application to have you removed and replaced as trustee of the Estate of Eric Charles Smith, deceased and the proper party entitled to an order for compensation will need to be identified to the court before the application for compensation can be finalised.
I find that the beneficiaries became entitled to the net proceeds of the bank accounts after one year, that is on 24 September 2003 and entitled to the capital proceeds and rents of Murray Street from 6 July 2007. I regard the rent received as the return on the Murray Street property, albeit an inadequate one for the period from September 2003 until July 2007. There is a further head of loss in that you have not made restitution and are not presently in a position to do so and I will award interest on these sums from those dates to compensate for the loss of use of those funds. I estimate that the annual rent return on the property, when it was rented, was about 4%. I will allow interest at that rate compounding annually. In the case of the proceeds of Murray Street, interest is allowed at $54,831.81 and for the money in bank accounts interest is allowed at $15,719.06. I propose to order pursuant to s 86 of the Sentencing Act 1991 that you pay compensation in the sum of $309,945.96 to the proper representative of the residual beneficiaries of the estate of Smith, once the proper representative is identified to the court.
The higher penalty for a deficiency in a trust account reflects the very serious nature of fraudulent breach of a solicitor’s trust account obligations and it has long been recognised that offences which demonstrate that a solicitor is not to be trusted bring the whole profession into disrepute, requiring that solicitor to be punished severely.[7] The predominant sentencing consideration applicable in this case is general deterrence. Your sentence must be such as to not only reflect the nature and gravity of your offending but also to make plain the court’s abhorrence and denunciation of offending of this nature and to provide general deterrence against the possibility of its repetition.
[7]Director of Public Prosecutions v Ryan, Full Court, (unreported 7 April 1986, 6).
Given your age and circumstances, I accept that the chances of you reoffending are limited. I also take into account that you have not offended since mid-2007 and your medical condition. I consider that in the circumstances there is no significant need for specific deterrence as a purpose for this sentence.
I will also allow in your favour for the significant delay between the appointment of the receiver to your practice on 29 June 2011 and the present time. Although that delay is not particularly long in the scheme of things, I recognise that you have been subject to significant psychological pressures which have, no doubt, exacerbated your psychological condition. But there is nothing to suggest that you were responsible for that delay and I will allow appropriately for it in your sentence. Quite possibly you suffered similar anguish in the period since you stopped offending and prior to the appointment of the receiver. That period was your own responsibility as you could have at any time confessed to your deeds.
It is also necessary for me to take into account your present psychological condition. I accept that impaired mental functioning at the time of sentencing may have a bearing on the kind of sentence to be imposed, and the conditions in which it is served, and may moderate the need for general and specific deterrence. It may also go to mitigation of punishment if there is a serious risk of imprisonment having a significant adverse effect on your mental health. However, this is a question of fact and degree and the requirement for general deterrence is not eliminated, only moderated. There remains the need for a just punishment and a sentence which will deter other persons from committing offences of the same or similar character and which sufficiently manifests the court’s denunciation of your conduct. That said, some mitigation of your punishment is warranted by your present psychological condition.
I have also had regard to the cases and statistical information to which I was referred and to the sentencing range[8] suggested by the prosecution.
[8]5 – 6 years with a non-parole period of 3 – 4 years.
Balancing the competing considerations to which the Sentencing Act 1991 requires me to have regard, and in particular all of the matters to which I have referred, you will be sentenced as follows:
(1) On charges 1, 2 and 7 - 2 years’ imprisonment
(2) On charge 9 – 3 years’ imprisonment
(3)On charges 3-6, 8 and 10-14 inclusive – 18 months’ imprisonment on each charge.
Looking at the totality of your criminal behaviour and considering the appropriate sentence for all of the offences bearing in mind the principle of parsimony, I have determined to order cumulation on some, but not all, charges to ensure that your total sentence is not excessive. I propose to treat the sentence on charge 9 of 3 years’ imprisonment as the base sentence as I regard this charge as the most serious of the offences.[9] I regard the remaining charges by which you appropriated the assets of an estate entrusted to you for administration, (charges 1, 7 and 10) and the deficiency in your trust account (charge 2) as warranting a more significant sentence. Otherwise, I take the view that the offences are equally serious. All other sentences are to be served concurrently save where I specifically order cumulation.
[9]The Crown submitted that, following Director of Public Prosecutions v Bourozikas [2009] VSCA 29, [26], I should treat the sentence on count 2 as the base sentence, but I do not regard the trust account deficiency as the most serious offending even though it carries a higher penalty.
For the purposes of cumulation your offences fall into several categories. First, there is the financial advantage obtained by appropriation of Murray Street (charges 7, 9 and 10). Second, there is the deficiency in your trust account which involved the theft of cash from the estate bank accounts (charges 1 and 2). Third, there are those offences that involve Ms Nugent (charges 4 and 5). They involve the theft of the identity of a real person and have inflicted suffering on an individual. Fourth, there is the financial advantage obtained through the repeated use of a false credit card (charge 13). Fifth, there are the remaining charges (charges 3, 6, 8, 11, 12 and 14) which involved the repeated falsification of identities and documents over a period of 5½ years in order to obtain government financial benefits. In my view, some cumulation is warranted to reflect the multiplicity of offences and the varied forms of deceitful behaviour in which you engaged. In each category, I have selected a representative charge and imposed some cumulation.
Your counsel submitted that because you had received a wholly suspended custodial sentence on charges that followed upon the appointment of a receiver to your practice and charges relating to failure to pay stamp duty,[10] that I should wholly suspend any sentence of imprisonment that I was minded to impose.
[10]This was conduct subsequent to the offending for which you are now being sentenced.
While it might be the case that these suspended sentences you received in those matters were appropriate in the particular circumstances, a suspended sentence is manifestly less burdensome than an immediate term of imprisonment.[11] I do not consider that suspending the sentence gives due weight to the overriding importance of general deterrence in matters of this kind, for as Nettle JA observed in R v Bernstein:[12]
These days, the idea of a fully suspended sentence in a case of solicitor defalcation will seldom sit easily with the imperative that solicitors who act in fraudulent breach of trust account obligations must inevitably suffer severe punishment.
[11]R v Bernstein [2008] VSC 254.
[12]Ibid, [52] (citation omitted).
Coldrey J in R v Kesik[13] explains why:
… not only do offences of this nature constitute a breach of the trust of clients, but they also constitute a betrayal of the trust of the profession of which you were a member and of the community you swore to serve upon your admission to practice. … [They] undermine the confidence the community should have in its legal advisors. Consequently, the courts have a duty, by the sentences imposed on offenders, not only to reflect the gravity of the offences, but also to deter other lawyers who might be minded to commit similar criminal acts.
[13][2006] VSC 493, [39].
Anthony Robert Coleman, on each of the counts on the indictment you stand convicted and I sentence you as follows:
On charge 1 (theft of $32,731.78) – 2 years’ imprisonment
On charge 2 (having a deficiency in your trust account of $32,731.78) - 2 years’ imprisonment
On charge 3 (obtaining a financial advantage of $4,728 by deception) - 18 months’ imprisonment
On charge 4 (obtaining a financial advantage of $9,901 by deception) - 18 months’ imprisonment
On charge 5 (obtaining a financial advantage of $3,221.50 by deception) - 18 months’ imprisonment
On charge 6 (obtaining a financial advantage of $9,776 by deception) - 18 months’ imprisonment
On charge 7 (obtaining a financial advantage of $16,432.50 by deception) – 2 years’ imprisonment
On charge 8 (obtaining a financial advantage of $9,764 by deception) - 18 months’ imprisonment
On charge 9 (obtaining a financial advantage of $189,531.21 by deception) – 3 years’ imprisonment
On charge 10 (obtaining a financial advantage of $10,700 by deception) - 18 months’ imprisonment
On charge 11 (obtaining a financial advantage of $6,696 by deception) - 18 months’ imprisonment
On charge 12 (obtaining a financial advantage of $6,832 by deception) - 18 months’ imprisonment
On charge 13 (obtaining a financial advantage of $21,388.01 by deception) - 18 months’ imprisonment
On charge 14 (obtaining a financial advantage of $6,000 by deception) - 18 months’ imprisonment.
I make the following orders for cumulation:
·Charge 9 is the base sentence.
·Charge 2 (deficiency in trust account) – 6 months cumulative on charge 9.
·Charge 4 (Nugent) – 3 months cumulative on charges 9 and 2.
·Charge 6 (a representative deception charge) – 9 months cumulative on charges 9, 2 and 4.
·Charge 13 (credit card) – 6 months cumulative on charges 9, 2, 4 and 6.
This means that you have a total effective sentence of 5 years’ imprisonment. I fix a non-parole period of 3 years.
I declare that you have served 16 days of pre-sentence detention, not including today, and that this period be reckoned as already served under this sentence, and I direct that the fact of that declaration and its details be entered into the records of the Court.
Pursuant to s 6AAA of the Sentencing Act 1991, I declare that the sentence and the non-parole period that I would have imposed but for your plea of guilty is 6 years and 6 months with a non–parole period of 4 years. I will also make a disposal order pursuant to s 78(1) of the Confiscation Act 1997 in the agreed form and the orders for compensation in favour of Kaylene Nugent, the State Revenue Office and the proper representative of the residual beneficiaries of the estate of Eric Charles Smith, deceased.
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