R v Munt

[2015] VSC 132

IN THE SUPREME COURT OF VICTORIA Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

S CR 0095 of 2014

THE QUEEN

v  

ALAN MUNT

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JUDGE:	KING J
WHERE HELD:	Melbourne
DATE OF HEARING:	5 February 2015
DATE OF SENTENCE:	9 April 2015
CASE MAY BE CITED AS:	R v Munt
MEDIUM NEUTRAL CITATION:	[2015] VSC 132

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Solicitor operating ‘Ponzi Scheme’ – Theft – 9 Charges, obtain property by deception – 8 Charges, deficiency in trust account – 8 Charges, obtaining financial advantage by deception – 2 Charges, continuing criminal offences, quantum in excess of $4,000,000.00, lengthy period of offending (11 years), co-operation, plea of guilty, remorse.
Sentence: 8 years and 6 months.  Minimum non parole period: 5 years and 6 months.

But for your plea of guilty, and pursuant to s 6AAA of the Sentencing Act, you would have been sentenced to 10 years with a minimum of 7 years.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr G Silbert QC	Office of Public Prosecutions
For the Accused	Mr G Lyon QC with Mr P Doyle	Amad & Amad

HER HONOUR:

1. Alan John Munt, on 5 February 2015 you pleaded guilty to an indictment containing 27 charges, comprising nine charges of theft:  charges 1, 4, 5, 6, 7, 9, 13, 17 and 21;  eight charges of obtaining property by deception, charges 2, 8, 11, 12, 14, 16, 18 and 20;  eight charges of deficiency in trust account, charges 3, 10, 15, 19, 23, 24, 26 and 27;  and two charges of obtaining financial advantage by deception, charges 22 and 25.

1. The earliest date of the indictment was 30 January 1998.  The last charge related to 23 September 2009, a period in excess of 11 years. 

1. The quantum of funds misappropriated by you and included in this indictment was  $4,819,061.90. 

1. The maximum penalties available for your offending are complicated by two factors;  firstly, changes in legislation during the relevant period;  and, secondly, that some of the applicable sentences are aggravated by the provisions relevant to continuing criminal enterprise offenders contained within the Sentencing Act.

1. The charges of theft, deceptions and obtaining financial advantage by deception, where the value is in excess of $50,000, carry a maximum penalty of 20 years’ imprisonment pursuant to the continuing criminal enterprise sections of the Sentencing Act contained in ss 6G, and 6H, which effectively doubles the maximum penalty for those offences.   

1. Thus, charges 4, 5, 7, 13 and 21, charges of theft of an amount exceeding $50,000, carry a maximum penalty of 20 years’ imprisonment.  Charges 1, 6, 9 and 17, being charges of theft of an amount less than $50,000, carry a maximum penalty of 10 years’ imprisonment. 

1. The obtaining property by deception charges comprising charges 2, 8, 11, 12, 14, 16, 18 and 20 all relate to amounts in excess of $50,000, and accordingly each carries a maximum penalty of 20 years’ imprisonment.  Equally, in respect of the charges of obtaining financial advantage by deception, charges 22 and 25, being in excess of $50,000, carry a maximum of 20 years’ imprisonment.

1. In relation to the charges of deficiency in your trust account, charges 3 and 10 are charges laid pursuant to the Legal Practice Act 1996, which carried a maximum penalty of 10 years’ imprisonment.  That Act was replaced in 2004 by the Legal Profession Act 2004, and, accordingly, charges 15, 19, 23, 24, 26 and 27 are laid pursuant to that Act with a maximum penalty of 15 years’ imprisonment. 

1. You are an undischarged bankrupt and there has been no restitution of any of these moneys by you and, on the material before me, no prospect of there being any restitution of the moneys, the subject of these charges, in the future. 

1. The Legal Practitioners Fidelity Fund has made application for a compensation order pursuant to s 86 of the Sentencing Act 1991 in the sum of $1,447,717.88, representing payments made by the Legal Practitioners Fidelity Fund to a total of 15 people relating to  five charges on the indictment, charges 19, 21, 23, 24 and 26.

1. You are a 61 year old former solicitor with no prior convictions.  You have pleaded guilty to the offences and you are entitled, as a matter of law, as well as common-sense, to an amelioration of the penalty that would otherwise be imposed as a result of your plea of guilty, together with a number of other factors to which I shall refer shortly, which will include your remorse, contrition and cooperation. 

1. Pursuant to s 6AAA of the Sentencing Act, I am required to state the penalty that I would otherwise have imposed but for your plea of guilty, which is a matter I shall do at the time of announcing your sentence.  As I indicated, your plea of guilty is relevant to a number of other issues beyond the statutory requirement of reducing the sentence that would otherwise have been imposed.

1. However, what must be acknowledged is that your behaviour in this case was appalling – it was predatory, manipulative and scheming, being carried out upon people who knew, liked, trusted, respected and, indeed, even cared about you.  There is no doubt that you have abused the trust of so many of your clients, family, friends and even your staff.  You have left in your wake pain and suffering, feelings of loss, distrust, in some cases financial deprivation and heartache.  For a number of the people from whom you stole or defrauded significant sums of money, this has been a long, slow and agonising process to get to this point, and while I will refer to the delay, it should be noted that the very significant delays that have occurred since this offending came to light, have not been of your making. 

1. I would like, however, to express to all of those who were the victims of your crimes that the delay they have suffered in waiting for this to be completed is entirely unacceptable and hopefully this is a case at the absolute extremity and no one else in their position will ever have to endure such lengthy and unjustifiable delays in the matter being brought before a court and finalised.  It is a sad indictment on the priorities of a policing organisation that they claim they cannot conduct an investigation into large sums of money stolen by a solicitor from members of the public, due to having inadequate resources, or other problems, and I shall deal with that issue later.

1. Equally, the law says that you are entitled to have the delay in this matter being finalised taken into account, in that you have done all within your power to cooperate and bring this matter to a close, and you have been waiting for this day  for all of that time.  That does not of course remove or even reduce your criminality but it is a factor that I need to take into account when imposing a sentence upon you. 

1. You confessed to the law institute in September 2009 and from that moment on have cooperated with the legal services board, the police and any of the authorities that have spoken to you.  You have provided material, statements, assistance, answered questions, but despite that, it has still taken in excess of five years to be brought before this court, a matter that is absolutely unacceptable from either your position or that of the of the victims of your crimes.

1. The Crown opening on this plea which was in itself a quite truncated version of your offending, was still 37 pages long.  I do not intend to recite the detail of your offending, charge by charge.  I will attach to my sentencing remarks a copy of the Crown opening, marked ‘A’, which will provide the information for those who are interested in the details of your offending. 

1. A great deal of the background to this case relies upon the statement you made and swore on 6 March 2014.  It was submitted, and also said in your statement to the police, that the circumstances that led to all of this offending commenced as a result of you becoming involved with a client Tony Fornasari, a Venitian, who you represented in the County Court regarding a fire at his restaurant in Sassafras.  You first met him in around 1993/1994.  In your statement you refer to a court case that went for 21 days, but it is unclear when this court case actually commenced and when it concluded.  What you told the police was that at the conclusion of the court case, despite him having won the case, Fornasari only received the sum of about  $20,000 after the legal costs had been taken out of his award of some $180,000. 

1. You stated to the police, that he approached you in relation to a scheme he had to sell opals overseas, that he was seeking seeding, or start up capital.  Initially you put up approximately $20,000, which I have presumed came from your own money.  This enabled Mr Fornasari to return to Venice for the purpose, so called, of setting up an organisation to sell and import opals from Australia.  That unfortunately never occurred, and you then, in your statement wrote ‘I was then forced to pull finance from other areas to cover the costs’.[1]

   [1]Page 169 deposition statement of Munt [10].

1. It was never explained to me why, having invested your $20,000, you then determined that, you were forced to behave in a criminal manner by illegally taking money from clients.  You continued in your statement by saying[2]:

   [2]Page 169 deposition statement of Munt [10-11]

At the time there was a client, a Mr Robert Stanley Walker, who had a property and I arranged for a mortgage to be placed over that property to help finance the continuous activities of Fornasari.  I am not sure what the amount of the mortgage was.  The mortgage had to be turned over and Ronald Fazzani/Rhonda Templeton and Cor Wildoer eventually took over those mortgages.  This was the beginning of the Ponzi scheme.  Moneys had to be found to pay the interest and at times to turn over the capital. 

Tony Fornasari died in 2002. 

1. Your criminality did not die with Tony Fornasari, it actually grew and flourished. You explained that the criminality started, in reality, in the mid-1990s and you continued, from that time, taking money from your clients to pay for these expenses. This behaviour must have commenced whilst you were still in partnership with your former partner, as your working history in the law is that you worked with Joseph S Falcone in Main Street, Emerald, firstly, as an employee solicitor in 1978 and then in partnership from 1982 when the practice was known as Falcone & Munt.  You dissolved the partnership in May 1999.  You then left Emerald and moved to Monbulk, and also purchased the conveyancing practice from Edward Halse in Emerald. With that purchase you received a company known as Emerald Conveyancing Services Pty Ltd and, through that company, a number of mortgage clients, some of whom ultimately became victims of your fraudulent behaviour.  In 2003 you purchased James & James Legal Practice of Emerald for $80,000, which was primarily a family law practice.  By 2005 your practice was conveyancing, family law and litigation, and you were operating it out of the emerald offices, having closed your Monbulk premises.  You had also become a member of the committee at Sylvan Glades in about 1995, a retirement village of some 20 units operating just outside Monbulk.  You were their lawyer, as well as ultimately the treasurer, and you embezzled significant sums from that organisation.

1. Your criminal behaviour continued over that time, cheating both your clients from the law practice and those who were investors, through Emerald Conveyancing Services, many of whom believed they were investing through the guarantee of a solicitor’s trust account in first mortgage’s .

1. You had met a man by the name of Dominic Perri, through your association with Tony Fornasari.  Perri had been involved in selling products to Noddy’s Soft Drinks, a business based in Geelong.  Your explanation for your involvement in Noddy’s Soft Drinks was that, in 2006 Perri had arranged to purchase the business and had organised a number of partners to come in to assist him in purchasing the business, and you were to handle the legal work.  You stated that, at the time it came due to settle, one of the partners pulled out at the last moment, and the purchase was in jeopardy, as they were $20,000 short.  What you said in your statement to the police was:[3]

   [3]Page 173 Depositions

I arranged for Emerald Conveyancing Services Pty Ltd to pay the money.  I then became involved to assist Mr Perri in the running of the business as a former director of Noddy’s.  After about 12 months, it became evident that the business was not going well and needed a complete overall.  The business needed a huge capital injection and I decided I would assist in that regard.  A Bruce Donaldson was employed as general manager and an ambitious project was carried out to move the existing business to an empty factory site and rebuild the factory from the bottom up.  The difficulty was that the initial estimates of the costs and timing were completely wrong.  Rebuilding the factory meant that instead of one production line it was envisaged to be four – handling soft drinks of all sizes and a water line.

1. Your explanation continued on:

Once I had started financing the project, more funds were needed and more funds were delivered to the project over a period of 12 to 18 months from 2007 to 2009.  However, the source of those funds was from my trust account.  The initial costs estimates were completely wrong.  There were a number of estate moneys that I was holding in my trust account which had a balance at one time between $1m to $2m, depending on the situation.[4]

[4]Page 173 Depositions [18]-[19].

1. You have in your statement included the names of some of the people involved in this particular scheme relating to Noddy’s being:  Knauf, Schofield, Molenaar, Collins, Williams, Fairchild, Pratt, Stevenson, Granic, Perkins and Di Cesare.  You described the use you made of the Emerald Conveyancing Services Pty Ltd in the following way:

The company operated effectively as a second trust account, which was never audited and moneys were funnelled in and out in relation to that account.  As the years rolled by, there was a need to refinance and to pay out other loans, especially where there were losses in a number of projects, ie Noddy’s.  My ECS2 account was effectively used to funnel moneys through for Noddy’s and to make interest payments for my Ponzi scheme.[5]

[5]Page 174 Depositions [21].

1. You used the funds from all of these different people, so that you could do what you wanted to do.  You used their funds to prop up your practice, so that you looked and behaved like a successful solicitor.  You used them to allow you to become involved in hair-brained schemes and plans, that were well outside any expertise that you could claim to possess. In your statement you appeared, to a degree, to claim a gullibility that saw you taken in, firstly, by Fornasari and, secondly, by Perri.  I find it difficult to accept the level of gullibility that you claim.  You were university educated, had worked as an employee solicitor and then as a partner in a law firm for some years.  You were fully aware of your responsibilities as a solicitor, your responsibilities to your clients, your responsibility for the maintenance of the trust account and, above all, your responsibility to the community in general as an honest citizen. 

1. Your involvement and participation in community ventures had made you a respected and trusted member of the community, all of which helped to facilitate your ability to commit these crimes. You were involved in community service in organisations such as Rotary, the Old Mentonians Society, you became President of the Victorian Hockey Association and Vice-President of the Australian Hockey Association as well as basketball clubs.  All of this should have reinforced to you the trust that was placed in you by the community, that they believed you were an upstanding and decent man, a person with whom they could confidently deal and it was that trust, that reputation, and that confidence that people had in you that you shattered by your offending.  You have caused untold distress to so many people.  I have 16 victim impact statements, not including those from your staff, all of which attest to the devastation that you have inflicted upon these people.  For some, your offending may seem somewhat minor, but for others, it has been incredibly destructive.  One of the reasons is that a lot of these clients had become friends or perceived themselves as friends.  The comments made by some of them in their victim impact statements include:

·Alan Munt hoodwinked, conspired and went to great lengths to conceal his fraud for many years.

·His deception and praying on the elderly, the sick and the frail was well-planned an executed over a long period.  This callous swindle and deceit has impacted upon our family.[6]

[6]Ian Bakkers, victim impact statement.

·It wasn’t only the money that worried me it was the fact that a solicitor you trusted and recommended to many friends had let everyone down.[7]

[7]Ray Abley, victim impact statement.

·I lost my independence and had to rely on family members to provide a stable roof over my head for myself and my children as I was unable to provide this due to the sale of our family home and subsequent loss of money directly caused by Alan Munt.  I could not purchase another house as he had taken all the money from the sale.[8]

[8]Hendrika Collins, victim impact statement.

·When you find a person of this standing whom you have known in your local community for over 20 years and held in high regard and completely trustworthy can commit such acts and can no longer be trusted is even more disturbing.[9]

[9]Ronald Fazzani and Rhonda Templeton, victim impact statement.

·My mother’s financial loss to Alan Munt was $80,000 but it was much more than that, being her remaining savings and financial independence.[10]

[10]Len Purton, victim impact statement for and on behalf of Mrs Dorothy Purton, deceased.

·My mother was battling cancer, and receiving radical chemotherapy and radiation treatment when she learned of the allegations against Alan Munt and the loss of her investment.  She was emotionally distressed and clearly devastated that a respected member of the legal profession and someone she trusted would do such a thing to a defenceless elderly lady.[11]

[11]Len Purton, victim impact statement for and on behalf of Mrs Dorothy Purton, deceased.

The victim impact statements continue in this form and in this manner.  I have read them all, and it is clear that you have inflicted great pain on many people, of whom a number were quite elderly, with some having died during or subsequent to your offending. You have brought heartbreak to many people in this small community in which you worked and lived.  There is no doubt that life would be exceedingly difficult for your wife and children, residing in that area, and being part of that community.  It is apparent, from the material presented on the plea, that you had not been spending the money on your wife or children, or on a lifestyle related to your family, they live still in a modest house and whilst you were together, you all took quite ordinary family holidays of brief duration, to local or possibly as far as the gold coast, but not long overseas holidays flying first class.  You were not leading a grandiose lifestyle on the basis of the money that you stole.  It appears that what you did, was that you used it to prop up your business and keep employing staff which you could not afford to employ, to make yourself appear to be a successful solicitor.  Equally, you used it to prop up businesses that were beyond salvation, trying again to make yourself look like a successful businessman, a good investor. 

1. How a community-minded person such as yourself, who had been involved in all of these community organisations, could delude and deceive themselves into believing that this was acceptable, that this was alright; defrauding the old, the trusting, friends, family and neighbours beggars belief. Your offending went on for so long, and the hole you dug for yourself became deeper and deeper, every month and every year. 

1. It was submitted on your behalf that this offending ceased as a result of your self-reporting to the Law Institute of Victoria.  Your counsel has in a number of places in the outline of submissions on your behalf referred to this self-reporting[12]:

   [12]Defence submissions, [6], [7], [12] and [31]

“AM reported his conduct to the LIV on 14 September 2009.”

“the self-reporting of his offending has left AM isolated and living in disgrace…”

“Five-and-a-half years have now passed since AM self-reported his offences.  He has lived on his own in rented accommodation and has worked consistently in that period.”

“The cooperation in this case is underscored by the fact that AM self-reported his offending.”

And finally, under the summary provided by the Crown at paragraph 52 the following is stated:

“The prisoner contacted the Law Institute of Victoria and self-reported his misconduct to them.  The prisoner has then provided the Law Institute of Victoria Inspector Colin Chun with a handwritten list of clients which have been affected and typed lists of mortgages related to his Ponzi scheme.  The prisoner has also given Chun additional names and details that did not appear on the aforementioned documents.”[13]

[13]Crown opening page 37.

1. Whilst there is no doubt you were exceedingly cooperative once the matter had come to light, it is not the situation that you caused this offending to cease as a result of determining to self-report to the Law Institute.

1. The evidence in fact discloses that on Thursday, 10 September 2009, Ms Marieke Ruzla contacted the Professional Standards Department of the Law Institute of Victoria. She was a junior solicitor in your employ. She spoke to a trust inspector, Kevin Jennings, about her concerns in relation to a series of files, in which she was suspicious about a misuse of trust money. Those concerns were communicated by Mr Jennings to Mr Jolyon Dunn, another trust account inspector, and the LIV Compliance Manager. As a result, Mr Dunn immediately made arrangements for the appointment of Mr Colin Chun, as an inspector pursuant to s 3.3.29 of the Legal Profession Act 2004.  

1. Mr Chun on Monday, 14 September 2009, telephoned you to advise you that he had been appointed to conduct an investigation into your trust account and trust account records of your practice, and wished to make an appointment to do that the next day.  During the course of the telephone discussion, you said to Mr Chun that there were in fact some trust account issues and that you would explain it all to Mr Chun when you met with him at your law practice.  Mr Chun attended on Tuesday, 15 September 2009 and he specifically asked you what you had meant by your reference to trust account issues, and asked you about the current situation, which is when you commenced to tell him what you had been doing.  That material is recorded at paragraphs 5‑18 of the signed statement made by Mr Chun which exhibits the file note. 

1. What I do accept is, that when this matter was brought to the attention of the Law Institute, you were immediately forthcoming upon their first inquiry of you, but I do not accept that you were, in fact, a self-reporter for the purposes of the plea. 

1. You are entitled to still rely upon your extensive cooperation with the authorities, firstly, the Law Institute, secondly, the Legal Services Board, and, finally, the police and the courts. 

1. I also have to take into account your personal circumstances.  You were born on 9 May 1953, in Perth and you are currently 61 years of age.  You will shortly turn 62.  You were one of two children.  Your brother is also a lawyer, practising as a patent attorney.  Whilst your mother is deceased, your father, Richard, is 92 years of age living in Sandringham.  He was an accountant during his working life, attaining the position of managing director of BP Australia, after the family relocated to Melbourne in 1966.  You had commenced at Wesley College in Perth, but attended Mentone Grammar School, after the move to Melbourne.  Post-secondary education you attended at Monash University, switching to an Arts Law Degree, from which you graduated in 1977.  You were an active member of the Labor Club during your time at university and particularly involved in the anti-Vietnam war movement.  You married young, at the age of 21.  That marriage produced no children and lasted only three years. 

1. Having completed your university degree, you then undertook the Leo Cussen course and commenced work with Joseph S Falcone in Main Street, Emerald in 1978.  And as outlined earlier, you were made a partner in 1982 and the firm became, Falcone & Munt.  In 1985, you married your wife, from whom you are now estranged; she was a teacher and became an administrator within the education system, and works at a school catering for children with learning difficulties and complex needs.  Together you have three children; 26, 24 and 22.  The separation between you and your wife occurred shortly after she found out about your particular offences.  She is singularly distressed about the impact of your offending upon the victims.  Your father is also aware of your offending and that you will be facing a term of imprisonment.  Your children have had only sporadic contact with you since this offending came to light.

1. The firm you joined originally was one where your partner’s practice was predominantly conveyancing, and you focussed on family law and litigation. 

1. In 1993, you and your family purchased a property in The Patch and your three children attended the local primary school, followed by the local Catholic High School.

1. Your partnership with Joseph Falcone disintegrated around 1999.  You became a sole practitioner, and as stated earlier, in 2000 bought the conveyancing practice of Edward Halsey in Emerald.  You were in Monbulk practising and you operated Edward Halsey’s premises, as a branch office. 

1. In 2003 when you bought James & James, you moved your firm to Emerald, wound down the Monbulk practice, and from 2005 worked exclusively from the Emerald office. 

1. I mentioned earlier that you had been involved with the community for quite some years, and I will expand upon that a little.  Between 1994 and 1998 you were involved with the Rotary Club in Monbulk, serving as club president for a year, you sought to expand its membership base and improve its finances. 

1. In 1977, you founded the Old Mentonion Hockey Club, playing there as a player until approximately 40 years old.  You became president of the Victoria Hockey Association in 1993, for five years.  That organisation administered men’s senior hockey.  You were also vice-president of the Australian Hockey Association between 1994 and 1998, and served as chairman of Hockey Victoria, the amalgamated association of women’s, junior’s and men’s seniors hockey competitions.  Finally  you were also chairman of the State Hockey Centre.  In 1998, you ceased your involvement in all of those matters and it was not until 2006 that you became interested in community sporting bodies again, joining the Knox Basketball Association, first as treasurer and later as vice-chairman as well as president of the Ranges Basketball Club, until you resigned in 2009.

1. You are an undischarged bankrupt and nothing has been recovered, from any area, to assist in the repayment of these people that you have defrauded.  The only moneys that have in fact been repaid are those paid out by the Legal Services Board, relating to trust account deficiencies, but none relating to your investments on behalf of the Emerald Conveyancing Service No. 2, as they were considered to be commercial investments not covered by the trust account, despite the instructions of a number of your clients as to what was to be done with the money.  Consequently, a significant number of people have been unable to recover anything in the way of funds that had been advanced to you for legitimate investment on their behalf. 

1. I accept that you are remorseful and that you attempted to plead guilty to these offences at the earliest possible time.  Without your assistance, in the form of the statement that you provided, together with the information you provided from the initial time at which these matters were brought to light, it is doubtful that anything in the way of a comprehensive set of charges could, in fact, have been laid against you. 

1. Your counsel tendered a psychological report from Patrick Newton dated 21 January 2015.  He initially saw you in December of 2013 and reviewed that assessment on 21 January 2015.  In that report you indicated to Mr Newton that, in fact, you had begun your offending in the mid-1990s in relation to the failed opal export venture.  You stated to him that you subsequently resorted to offending as a way to manage poor business practices, and other emergent problems, and that your offending had really taken off from 2007/8, when you became involved in the failed Noddy’s Soft Drink company[14]. You have no particular mental health issues, apart from mild emotional distress relating to shame and guilt, which is to be expected for a person in your position.

   [14]Report of Patrick Newton 21/1/2015 at [25]

1. You have, since this offending, regained employment and your current employer has been at all times fully aware of your offending, somewhat ironically you advise business people, who are in debt, about how to reorganise and restructure their businesses, to recover. You have also tendered character reports which I have read, including one from your current employer, David Graer. I accept that you were a person of good character, prior to the commission of these offences, but that has only a very limited role to play in the determination of the appropriate sentences.

1. I was most concerned at the delays that occurred in respect of the investigation and prosecution of these offences.  I have received further submissions from the Legal Services Board and the Law Institute of Victoria, as to the cause of these delays.  It became abundantly clear that the delay was occasioned by the processes put in place by the Victoria Police and the Legal Services Commission. 

1. There was a decision made, by Victoria Police, in about 2008 that the Legal Services Board would become responsible for the investigation of solicitor’s trust account offences pursuant to the Legal Services Act.  That was decided even though there appeared to be insufficient structures in place to support such investigations.  It was apparent that this was a resource driven policy from the police perspective, although police agreed that they would investigate the matters relating to offences under the Crimes Act committed against the citizens of this State. There was, equally, a reluctance on the part of the Board to commit its funds to the investigation process.

1. Having viewed the correspondence between the two organisations, it is patently clear that Victoria Police, despite being aware that serious offences of theft and deception had occurred, and despite being asked to either take over or help the Legal Services Board investigate the prisoner, consistently refused to investigate or assist the investigation of this offending, and the investigation had to be outsourced to a private investigation company.  That was a wholly inefficient, time consuming, time wasting, unnecessary process, that could have been alleviated by the police doing their job.  The fact that the accused was a solicitor does not mean that he has not committed offences against fellow citizens in our community that merit proper investigation, by an appropriate investigation agency, with all necessary powers and obligations to conduct such an investigation.

1. A report prepared by the Law Institute Inspectors and comprising some 60 pages was handed over to the Pakenham Police Station for investigation in September of 2009, it contained within it references to the prisoner conducting a Ponzi scheme, that he had defrauded many people, using fake mortgages, supported by false documents totalling in excess of $2.5 million.  The Victoria Police refused to investigate or prosecute the matter, saying that it should be investigated by the Legal Services Board.

1. By 28 November 2012, there was formal recognition that there were mortgage frauds of between 1 ½ to 2 ½  million dollars, over and above the trust account offences, and after consultation with the OPP, the OPP recommended that the matter then be referred to Victoria Police, for full investigation. 

1. When the matter was finally investigated by the police, it appeared to consist of having the prisoner Munt reiterate the information he had already provided to the law Institute in the form of a statement, together with a desultory collection of some statements.  It was unimpressive, to say the least.

1. The public have been very poorly served by all of the organisations involved in this investigation, but I am particularly critical of the Victoria Police, for putting resourcing issues ahead of the investigation of very serious criminal offending.  This offending related to numerous citizens, some wealthy, some not at all wealthy, placing all of their available funds, at the disposal of the prisoner.

1. The Legal Services Board made its position clear to Victoria Police when they wrote on 17 December 2009 stating:

Whilst I regret troubling you with this matter, I wondered whether the decision not to assist in the prosecution of Mr. Munt could be reconsidered in view of the fact, to be frank, the expertise which Victoria Police has in matters such as this, has not been developed to date in the Legal Services Board or the law Institute, its delegate, in relation to criminal matters arising as a result of trust account inspections’.  

1. The Police still declined to investigate.

1. I can only hope that this sorry episode is never repeated, it is grossly unfair that all of the complainants in this matter have had to wait so long for this matter to be heard and determined.  It is also unfair to the prisoner, who will be punished for his criminal offending, but that punishment should not hang over him like the sword of Damocles for this length of time. The legal Services Board says that it has put in place processes to ensure that it never happens again, I would hope that Victoria Police have also done the same.

1. These offences are serious, the amounts of money involved was in the millions of dollars, involving a large number of victims, they went on over a very lengthy period of time, and above all, they are a gross abuse of the trust that has been placed in you by the courts, and the public of Victoria.  Accordingly, there is no doubt that the issue of general deterrence looms large.  The issue of specific deterrence is of little significance, as I accept that you are indeed remorseful, and have very good prospects of rehabilitation, but again, this is of little weight in the overall determination of the appropriate sentences.  The persons against whom you offended in some cases have been severely damaged by your crimes, and the loss of trust and faith in people persists in a large number of those people.  For quite a large number, the financial loss that they have suffered is on-going and severe, for others there has been some compensation from the fidelity fund, but all have been significantly impacted by your crimes.  You are, in respect of a large number of the offences, to be sentenced as a continuing criminal enterprise offender, an aggravating feature, which means that the maximum penalty, is doubled for those particular offences.

1. The courts have identified, in cases of similar offending, that solicitors, who breach their obligations and commit frauds and thefts upon their clients, will receive significant punishment. 

1. Your counsel relied upon the decisions of Phillips v The Queen as to the mitigating effect of a plea of guilty, a matter to which I have already referred and will have regard when imposing sentence, the cases of Lyndon Cockerell and R v Merrett, Piggott and Ferrari as to inordinate delay, and the Queen v Shane Gavin Doran a decision related to volunteered confessions of crimes that otherwise might not have been detected.  As I indicated earlier, I have determined that this is not a self-reported matter, but one in which you co-operated extensively with the authorities.

1. I have had regard to a number of cases involving fraudulent solicitors, that have been dealt with either in the trial division, or the appellate division, of this court within the last few years, and whilst they do not provide a tariff as such, as each case must be decided upon its individual circumstances, the principles that can be gleaned are useful[15]. 

   [15][15] DPP v Penny [212] VSCA 203, R v De Stefano [2003] VSC 68, Koch v The Queen [2011] VSCA 435, The Queen v Linacre [2014] VSC 615

1. Balancing all of those factors to which I have referred, you are convicted and sentenced as follows:

On the non-continuing criminal enterprise Charges of theft – carrying a  maximum penalty of 10 years imprisonment

-     Charge 1 – 12 months imprisonment

-     Charge 6 – 9 months imprisonment

-     Charge 9 – 9 months imprisonment

-     Charge 17 – 12 months imprisonment

On the continuing criminal enterprise Charges  of theft  - carrying a maximum penalty of 20 years imprisonment

-     Charge 4 – 2 years imprisonment – concurrent

-     Charge 5 – 2 years imprisonment – concurrent

-     Charge 7 – 2 years imprisonment – concurrent

-     Charge 13 – 3 years imprisonment

-     Charge 21 – 2 years imprisonment

On the continuing criminal enterprise Charges of obtaining property by deception – carrying a  maximum penalty of 20 years imprisonment

-     Charge 2 – 3 years imprisonment

-     Charge 8 – 3 years imprisonment

-     Charge 11 – 2 years imprisonment

-     Charge 12 – 2 years and six months imprisonment

-     Charge 14 – 3 years imprisonment

-     Charge 16 – 2 years imprisonment

-     Charge 18 – 2 years imprisonment

-     Charge 20 – 2 years and six months imprisonment

On the continuing criminal enterprise Charges of obtaining financial advantage by deception – carrying a  maximum penalty of 20 years’ imprisonment

-     Charge 22 – four years imprisonment

-     Charge 25 – 3 years imprisonment

On the charges relating to deficiencies in your trust account, pursuant to the Legal Practice Act 1996, which carried a maximum penalty of 10 years’ imprisonment

-     Charge 3 – 12 months imprisonment

-     Charge 10 – 12 months imprisonment

On the charges relating to deficiencies in your trust account, pursuant to the Legal Profession Act 2004, which carried a maximum penalty of 15 years’ imprisonment

-     Charge 15 – 2  years six months imprisonment

-     Charge 19 – 2 years imprisonment

-     Charge 23 – 2 years imprisonment

-     Charge 24 – 5 years imprisonment  

-     Charge 26 – 4 years imprisonment

-     Charge 27 – 3 years imprisonment

1. The sentence on charge 24 of 5 years imprisonment is the base sentence, and I direct that the following charges are to be served cumulatively upon the base sentence and upon each other:

-     1 month of charge 17

-     2 months of charges 8, 13, 19, 21, 22, 25, and 27

-     3 months of charge 1

-     6 months of charges 4 and 26

-     12 months of charge 14

Making a total effective sentence of 8 years and six months.  I have determined, for the reasons put forward by your counsel, that I will direct a slightly lower non parole period than normal.  Accordingly, I direct that you are to serve a period of five and half years before becoming eligible for parole.

Pursuant to s 6J of the Sentencing Act, I direct that it be noted in the records of the court that you have been sentenced as a Continuing Criminal Offender on the relevant charges stated.

I declare pursuant to s 6AAA of the Sentencing Act that were it not for your plea of guilty, I would have sentenced you to a term of 10 years, with a minimum non parole period of 7 years.

I make a compensation order, as requested, pursuant to s 86 of the Sentencing Act 1991 in the sum of $1,447,717.88, representing payments made by the Legal Practitioners Fidelity Fund in relation to charges 19, 21, 23, 24 and 26.

I Declare that Alan John Munt’s name be removed from the Roll of persons admitted to the legal profession kept by the Supreme Court of Victoria.

------------------

ATTACHMENT “A”

IN THE SUPREME COURT
OF VICTORIA
AT MELBOURNE

THE QUEEN
V
ALAN JOHN MUNT

CROWN OPENING ON THE PLEA

INTRODUCTION

1. On Monday, 14 September 2009, the prisoner phoned the Law Institute of Victoria (LIV) and advised the LIV that he wished to hand in his Practising Certificate as he had been involved in misappropriating his clients’ trust and investment monies. 

2. The matter was initially investigated by Law Institute of Victoria (LIV) Inspectors and the Legal Services Board (LSB) before the matter was referred to Victoria Police Fraud and Extortion Squad in December, 2012 for an investigation.

THE PRISONER

1. Alan John Munt was born on 9 May 1953, in Scarborough, Western Australia, and moved to Victoria with his parents in 1966.  The prisoner was educated at the Mentone Grammar School between 1966 and 1971 and then attended Monash University in 1977 where he completed his law degree.

2. The prisoner then completed a six month course at the Leo Cussen Institute and obtained employment as an employee solicitor with the law firm, Joseph S. Falcone in Main Street, Emerald, in 1978.

3. He was admitted as a legal practitioner of the Supreme Court of Victoria on 3 November 1980.  He was assigned practitioner number P0009208.

4. In 1982 the prisoner entered into partnership with Falcone and the law practice was then known as Falcone & Munt.  The prisoner practised until 1999 when the partnership dissolved and he then moved to Monbulk.

5. The prisoner held a Victorian Principal Practising Certificate, with authorization to receive trust money between 1 January 1985 to 30 June 2008 and 4 August 2008 and 1 October 2009.  A Local Practicing Certificate (LPC) was issued annually to the prisoner confirming the above details as seen in LPC No 10910000920829 for the period 1 July 2009 to 30 June 2010.

6. The prisoner operated as a sole practitioner at the local law practice “Alan J. Munt” (E0009190) in Monbulk from 1999 to approximately 2003.  The prisoner then moved to the rented premises located at 347 Main Street, Emerald, Victoria, 3782, where he operated until 1 October 2009.  The prisoner purchased this legal practice from Solicitors, James & James in 2000.

7. The prisoner also operated a company by the name of Emerald Conveyancing Services Pty Ltd initially from Monbulk, and then from the same Emerald address as his legal practice.  The prisoner purchased this conveyancing practice from Solicitor, Edward Halse in 2000.

8. The prisoner operated a general law practice but specialized primarily in family law and general law employing eight staff at its peak being two solicitors and six support staff.

9. In early July 2009, the prisoner established a new branch office trading as “Belgrave General Lawyers” located at Shop 17, Belgrave Arcade, 1647 Burwood Highway, Belgrave.  The prisoner employed Solicitor, Arthur Kapantzian to run this office.

Bank Accounts

1. The prisoner operated the following business and personal bank accounts and credit cards:

   a.National Australia Bank (NAB) account named “Alan John Munt Trust Account” BSB 083-777, number 46-790-7204 at the Monbulk branch located at 53 Main Street, Monbulk, Victoria, 3793.

   b.NAB account named “Emerald Conveyancing Services Pty Ltd Business Cheque Account 2” (ECS2) BSB 083-427, number 55-099-2411 at the South Yarra branch located at 600 Chapel Street, South Yarra, Victoria, 3141.

   c.NAB account named “Emerald Conveyancing Services Pty Ltd Business Cheque Account” (ECS) BSB 083-427, number 47-238-4946 at the South Yarra branch located at 600 Chapel Street, South Yarra, Victoria, 3141.

   d.NAB account named “Alan John Munt Business Cheque Account” – ‘Office Account’ BSB 083-777, number 46-746 0465 at the Monbulk branch located at 53 Main Street, Monbulk, Victoria, 3793.

   e.NAB account named ‘Alan John Munt Statutory Trust Account No 2” BSB 083-321, number 16-083-2666 at the Ferntree Gully branch located at Shop 12, Mountain Gate Plaza Shopping Centre, Ferntree Gully, Victoria, 3156.  

   f.NAB account named “Alan John Munt Instalment Loan” BSB 083-245, number 54-414-3333 at the South Yarra Business Centre branch located at Level 2/627 Chapel Street, South Yarra, Victoria, 3141.

   g.NAB account named “Alan John Munt & Denise Margaret Munt” – ‘Home Loan’ BSB 083-777, number 10-499-6703 at the Monbulk branch located at 53 Main Street, Monbulk, Victoria, 3793.

   h.NAB account named “Alan John Munt National Flexi Account” BSB 083-638, number 51-815-5760 at the Monbulk branch located at 53 Main Street, Monbulk, Victoria, 3793.

   i.NAB account named “Alan J Munt” – National Gold Visa Card, number 4557 0168 3524 4232.

   j.NAB account named “Alan J Munt” – Classic Visa Card, number 4557 0256 7728 2341.

   k.Westpac Banking Corporation (W/Pac) account named “Alan John Munt” BSB 733-000, number 67-8573 at the Melbourne branch located at 360 Collins Street, Melbourne, Victoria, 3000.

   l.W/Pac account named “Noddy’s Softdrinks Pty Ltd ITF Pure Beverage Group Unit Trust” and formerly known as “K & E Welding Industries Pty Ltd ITF Pure Beverage Group Unit Trust” BSB 033-127, number 26-9083 at the Vermont South branch located at Shop 20/495 Burwood Highway, Vermont South, Victoria, 3133.

   m.W/Pac account named “Australian Pure Beverages Pty Ltd” BSB 033-127, number 28-7062 at the Vermont South branch located at Shop 20/495 Burwood Highway, Vermont South, Victoria, 3133.

Circumstances of Offending

1. Around 1993 or 1994 the prisoner met Tony Fornasari whom he represented at the County Court regarding a fire at Fornasari’s restaurant in Sassafras.

   After the conclusion of the court case, Fornasari approached the prisoner in relation to a scheme he had to sell opals overseas.  He required starting capital and initially the prisoner  put up approximately $20,000.00.

2. The prisoner then had to pull finances from other areas to cover the many trips overseas that Fornasari made to buy opals and arrange importation.  The prisoner had a client at the time being Robert Stanley Walker who had two properties with the titles in possession of the prisoner.  The prisoner used one of Walker’s titles to arrange a false mortgage of $100,000.00 to cover the costs regarding his scheme with Fornasari.  This was the beginning of the Ponzi scheme.

3. Between 2000 and 2009, the prisoner operated a fraud scam commonly referred to as a ‘Ponzi Scheme’.  The prisoner obtained his clients’ money with the promise of high interest returns.  The prisoner provided his clients with false Epitome of Mortgages, false Mortgage of Land documents and false Promissory Notes concerning their investments to misrepresent to them that their investments were legitimate and secure.

4. When the prisoner received investment monies, they were generally paid into one of the following accounts:

   a.NAB Account number 55-099-2411 in the name of “Emerald Conveyancing Services Pty Ltd Business Cheque Account 2”; or

   b.NAB Account number 46-790-7204 in the name of “Alan John Munt Trust Account”.

5. The prisoner would then debit the aforementioned bank accounts for the full amount as the credit for investment.  The prisoner would write a cheque generally made payable to either himself, to Emerald Conveyancing Service 2 or to Noddy’s Softdrinks.

6. The prisoner would provide a narration on the cheque stub containing false information as to the destination of the said cheque to avoid detection by staff or auditors.

7. The prisoner’s ECS2 account was operated effectively as a second trust account that was never audited.  This account was used to funnel monies in and out for Noddy’s Softdrinks and to make interest payments for his Ponzi scheme.

8. Between 2006 and 2009 the prisoner, in his role as a director, became involved in the company known as Noddy’s Softdrinks Proprietary Limited located in Geelong.  The business was to be purchased by Dominic Perri in 2006 and needed a huge capital injection which the prisoner agreed to finance.  The prisoner sourced these funds from his Trust Account by using estate funds that had been withheld awaiting finalization.  The prisoner also embezzled funds, which went to Noddy’s Softdrinks, from a retirement village known as Sylvan Glades where he was the Treasurer on the committee and was responsible for all the legal work.

9. Noddy’s Softdrinks was forced into liquidation in 2009 and its only real asset, being the plant and equipment, was sold for $100,000,00 which only covered the liquidator’s remuneration.

Charge 1:Theft of $21,633.56 from Carol Crook (nee Bell) between 30 January 1998 and  31 December 1999.

1. Carol Crook was a client of the prisoner regarding a child maintenance claim against her former husband.  The claim was settled around 1990 and the prisoner invested the monies on Crook’s behalf in a term deposit with the Bank of Melbourne.  Bank records show a balance of $21,633.56 as at 31 October 1990.  On 30 January 1998 the prisoner used $19,000.00 of those funds as a mortgage to another client, Robert Walker.  Carol Crook, now deceased, never received the funds she had invested through the prisoner.  Additional funds belonging to Crook were also stolen by the prisoner – see Charge 9.  The prisoner stole these funds which he used for business expenses and to make interest payments.

Charge 2:Obtain Property by Deception of $100,000.00 from Cor Wildoer on or about 10 January 2001.

1. On 10 January 2001 the prisoner received a cheque for $100,000.00 from Cornelius (Cor) Wildoer which he misrepresented to Wildoer would be lent to Robert Walker and secured by first mortgage against Walker’s Nangana property.  Cor Wildoer was a major investor with the prisoner and lent the prisoner large amounts of monies to be secured against first mortgages in return for high interest returns.  The prisoner held both the titles for Walker’s Nangana and Ellendale (TAS) properties.  The prisoner falsely prepared mortgage documents to satisfy Wildoer and Walker was unaware his property had been mortgaged.  The prisoner then used the $100,000.00 obtained by deception as business expenses to pay out an existing mortgage although he cannot recall which one.

Charge 3:Cause Trust Account Deficiency of $12,742.00 on 20 February 2003.

1. The prisoner debited the amount of $12,742.00 from his Trust account no. 46-790-7204 on 20 February 2003 by preparing and signing cheque no. 1002 made payable to himself and then deposited it into his personal Westpac account no. 67-8573 the same day.  These funds belonged to Martina Whelan and Desmond Cox, clients of the prisoner.  The prisoner made a false narration, “D Cox re: Flaton/Whelan funds release”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds for business expenses and for personal use.

Charge 4:Theft of $50,000.00 from Margaretha Vanderaa (Nee Bakker) on 24 April 2003.

1. The prisoner received $50,000.00 from Margaretha Vanderaa on 24 April 2003, which was the first of four amounts the prisoner received over approximately 12 months from Vanderaa totalling $175,000.00 – (see Charges 5, 6 and 7).  Vanderaa was an investor with the prisoner in return for a first mortgage as security and high interest returns.  After receiving all four amounts from Vanderaa, the prisoner prepared a false Epitome of Mortgage with Vanderaa (nee Bakker) as Mortgagee and Robert Stanley Walker as Mortgagor.  The principal sum was for $175,000.00 with security being Walker’s Nangana property and interest was calculated from 1 May 2004.  That document relates to all four charges.  The prisoner deposited the first amount being $50,000.00 into his ECS2 account no. 55-099-2411 on 17 April 2003.  On 24 April 2003 the prisoner prepared and signed cheque no. 000011 in the amount of $48,000.00 payable to himself which was deposited into his Westpac personal account no. 67-8573 the same day.  The prisoner used those stolen funds, together with the funds referred to in Charge 5, to pay out an existing mortgage although he cannot recall which one, to make interest payments for his Ponzi scheme, for business expenses and for his own personal use.

Charge 5:Theft of $50,000.00 from Margaretha Vanderaa (Nee Bakker) on 2 May 2003.

1. The prisoner received $50,000.00 from Margaretha Vanderaa on 2 May 2003, which was the second of four amounts the prisoner received over approximately 12 months from Vanderaa totalling $175,000.00 – (see Charges 4, 6 and 7).  The prisoner deposited the second amount being $50,000.00 into his ECS2 account no. 55-099-2411 on 2 May 2003.  On 2 May 2003 the prisoner prepared and signed cheque no. 000012 in the amount of $50,000.00 payable to himself which was deposited into his Westpac personal account no. 67-8573 the same day.  The prisoner used those stolen funds, together with the funds referred to in Charge 4, to pay an existing mortgage although he cannot recall which one, to make interest payments for his Ponzi scheme, for business expenses and for his own personal use.

Charge 6:Theft of $10,000.00 from Margaretha Vanderaa (Nee Bakker) on 1 July 2003.

1. The prisoner received $10,000.00 from Margaretha Vanderaa on 1 July 2003, which was the third of four amounts the prisoner received over approximately 12 months from Vanderaa totalling $175,000.00 – (see Charges 4, 5 and 7).  The prisoner deposited the third amount being $10,000.00 into his ECS2 account no. 55-099-2411 on 1 July 2003.  On 1 July 2003 the prisoner prepared and signed cheque no. 000020 in the amount of $10,000.00 payable to himself which was deposited into his Westpac personal account no. 67-8573 the same day.  The prisoner used those stolen funds for his personal use.

Charge 7:Theft of $65,000.00 from Margaretha Vanderaa (Nee Bakker) on 13 April 2004.

1. The prisoner received $65,000.00 from Margaretha Vanderaa on 13 April 2004, which was the fourth of four amounts the prisoner received over approximately 12 months from Vanderaa totalling $175,000.00 – (see Charges 4, 5 and 6).  The prisoner deposited the fourth amount being $65,000.00 into his ECS account no. 47-238-4946 on 8 April 2004.  On 13 April 2004 the prisoner prepared and signed cheque no. 001081 made payable to himself in the amount of $59,450.00 and made a false narration, “RW Walker”, on the cheque stub to deliberately misrepresent where the funds actually went.  Robert Walker did not receive the funds.  Margaretha Vanderaa did not get any of her $175,000.00 returned.  The prisoner used those stolen funds to pay out an existing mortgage although he cannot recall which mortgage, to make interest payments for his Ponzi scheme, for business expenses and for his own personal use.

Charge 8:Obtain Property by Deception of $140,000.00 from Ronald Fazzani and Rhonda Templeton on 24 August 2004.  

1. On 24 August 2004 the prisoner received a cheque for $140,000.00 from Ronald Fazzani and Rhonda Templeton having misrepresented to both Fazzani and Templeton the money would be lent to Robert Walker and secured by first mortgage against Walker’s Nangana property.  Fazzani and Templeton invested with the prisoner and lent the prisoner the funds to be secured against a first mortgage in return for promised high interest returns.  The prisoner held both the titles for Walker’s Nangana and Ellendale (TAS) properties.  The prisoner falsely prepared mortgage documents to satisfy Fazzani and Templeton and Walker was unaware his property had been mortgaged, and did not receive the loan.  On 24 August 2004 the prisoner deposited the $140,000.00 cheque into his ECS2 account no. 55-099-2411.  On 26 August 2004 the prisoner prepared and signed cheque no. 110 made payable to himself for the amount of $140,000.00 which was credited into his personal Westpac account no. 67-8573 the same day.  The prisoner made a false narration on the cheque stub, “C. Wildoer repayment debt re Walker”, to deliberately misrepresent where the funds actually went – Wildoer did not receive the funds.  The prisoner then used the $140,000.00 obtained by deception to make interest payments for his Ponzi scheme, to pay a deposit for client Susana Kay McKail, for business expenses and for his own personal use including a cheque payable to himself for $65,000.00 but he cannot recall now what he used the funds for.

Charge 9:Theft of $10,000.00 from Carol Bell between 12 November 2004 and 18 November 2004.

1. On 12 November 2004 Carol Bell, now deceased, gave the prisoner $10,000.00 in cash to be invested for her mother, also deceased.  These funds are in addition to Charge 1.  The  prisoner deposited the funds into his ECS2 account no. 55-099-2411 the same day.  The prisoner never invested Bells’s funds and by 18 November 2004, the prisoner had withdrawn and used the funds for general office expenses and to make interest payments for his Ponzi scheme.

Charge 10:Cause Trust Account Deficiency of $66,397.60 between 2 February 2004 and 28 April 2004.

1. The Prisoner debited the amount of $26,397.60 from his Trust account no. 46-790-7204 on 2 February 2004 by preparing and signing cheque no. 1162 made payable to his ECS2 account no. 67-8573 where it was deposited the same day.  The prisoner made a false narration, “G Scott balance of Mothers Estate”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to make an interest payment for his Ponzi scheme, for business and personal use.   

2. The prisoner debited the amount of $20,000.00 from his Trust account no. 46-790-7204 on 23 April 2004 by preparing and signing cheque no. 1580 made payable to SDCA Pty Ltd.  The prisoner made a false narration, “Sue McKail, J Bakker P/L”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds for his own personal use, which in this case he gave to client Susanna Kay McKail.

3. The prisoner debited the amount of $9,000 from his Trust account no. 46-790-7204 on 23 April 2004 by preparing and signing cheque no. 1581 made payable to Sue McKail.  The prisoner made a false narration, “Sue McKail, J Bakker P/L”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds for his own personal use, which in this case he gave to client Susanna Kay McKail.

4. The prisoner debited the amount of $11,000.00 from his Trust account no. 46-790-7204 on 28 April 2004 by preparing and signing cheque no. 1582 made payable to his Office account no. 46-746-0465.  The prisoner made a false narration, “Sue McKail, J Bakker P/L”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds for his own personal use, which in this case he gave some of those funds to client Susanna Kay McKail and used the rest for business expenses.

Charge 11:Obtain Property by Deception of $80,000.00 from J.T. Bakker Pty Ltd on 14 February 2005.

1. On 14 February 2005, the prisoner received a cheque for $80,000.00 from J.T. Bakker Pty Ltd having misrepresented to Bakker the money would be lent to Susanna Kay McKail and secured by first mortgage against her property of Unit 14 and Accessory Unit 40/151 Princes Highway, Dandenong.  John Theodore Bakker was a long time investor with the prisoner and invested and lent the prisoner funds to be secured against a first mortgage in return for promised high interest returns.  J.T. Bakker Pty Ltd divided his investments between his two children, daughter Pauline Bakker and son Ian Bakker.  This particular loan was given to Ian Bakker and his wife Christine Bakker and their company Eagleye Pty Ltd.  The prisoner falsely prepared mortgage documents to satisfy J.T. Bakker and Eagleye Pty Ltd.  The prisoner changed the security for the loan to another of McKail’s properties being 3/41 Chandler Road, Noble Park.  The prisoner had the mortgage of land documents drawn up which were signed by Ian and Christine Bakker for Eagleye Pty Ltd but not dated.  The prisoner did not register this mortgage.  The prisoner also falsified an Epitome of Mortgage and Promissory Note to support the mortgage documents which were unsigned.  On 14 February 2005 the prisoner deposited the $80,000.00 cheque into his ECS2 account no. 55-099-2411.  McKail did not receive the $80,000.00 loan.  The prisoner then used the $80,000.00 obtained by deception to make interest payments for his Ponzi scheme, some of the funds went to client Susanna Kay McKail, for business expenses and for his own personal use.

Charge 12:Obtain Property by Deception of $90,000.00 from Cor Wildoer on 4 March 2005.

1. On 4 March 2005 the prisoner received a cheque for $90,000.00 from Cor Wildoer having misrepresented to Wildoer the money would be lent to Susanna Kay McKail and secured by first mortgage against her property being 6/52 Chandler Road, Noble Park.  Cor Wildoer was a major investor with the prisoner and lent the prisoner large amounts of monies to be secured against first mortgages in return for promised high interest returns.  The prisoner falsely prepared mortgage documents to satisfy Wildoer.  The prisoner had mortgage of land documents drawn up which were signed by McKail which he witnessed but did not lodge a caveat against the property to secure the loan.  McKail did not get the $90,000.00 loan.  On 4 March 2005 the prisoner deposited the $90,000.00 cheque into his ECS2 account no. 55-099-2411.  The prisoner then used the $90,000.00 obtained by deception to make interest payments for his Ponzi scheme, to pay off debts totalling $42,000.00 for client Susanna Kay McKail, for business expenses, for his own personal use and to pay back an estate but he cannot recall now which estate.

Charge 13:Theft of $100,000.00 from Dorothy Purton between 27 April 2005 and 11 November 2005.

1. The prisoner received $50,000.00 from Dorothy Purton on 27 April 2005 and another $50,000.00 on 18 October 2005 totalling $100,000.00.  The prisoner received instructions from Dorothy Purton, now deceased, to invest her monies in first mortgage property finance on approved properties.  The prisoner receipted the first amount of $50,000.00 into his ECS2 receipt book with the narration “Mortgage advance-McKail” on 27 April 2005.  The prisoner receipted the second amount of $50,000.00 into his ECS2 receipt book with the narration “Mortgage” on 18 October 2005.  On 27 April 2005 the prisoner prepared a false Epitome of Mortgage with Purton as Mortgagee and McKail as Mortgagor.  The principal sum was for $50,000.00 with security being McKail’s property of Unit 10/11 Westlands Road, Emerald, with interest calculated from 27 April 2005.  On 7 June 2005 the prisoner prepared a Promissory Note for the $50,000.00 loan from Purton which was dated the same day, signed by McKail and witnessed by the prisoner.  The prisoner prepared a Mortgage of Land (unregistered) which was signed by McKail and witnessed by the prisoner.  After receipt of the second amount of $50,000.00 on 18 October 2005, the prisoner prepared an Epitome of Mortgage increasing the advance to $100,000.00.  The same day the prisoner prepared a Variation of Mortgage or Charge (unregistered) detailing the total advance of $100,000.00 which was signed by Purton and witnessed by her son Leonard Purton.  The prisoner then forged McKail’s signature which he then witnessed himself.  The prisoner prepared these false documents to give Purton the impression the loan to McKail was legitimate and properly secured.  McKail did not receive the $100,000.00 loan from Purton.  The prisoner used those stolen goods to make interest payments for his Ponzi scheme, for business expenses including giving $6,000.00 to McKail and for his own personal use.

Charge 14:Obtain Property by Deception of $130,000.00 from Cor Wildoer on 27 July 2005.

1. On 27 July 2005, the prisoner received a cheque for $90,000.00 from Cor Wildoer which he misrepresented to Wildoer would be lent to Susanna Kay McKail and secured by first mortgage against her property being 8/1203 Heatherton Road, Noble Park.  Cor Wildoer was a major investor with the prisoner and lent the prisoner large amounts of monies to be secured against first mortgages in return for promised high interest returns.  The prisoner falsely prepared mortgage documents to satisfy Wildoer.  The prisoner had mortgage of land and other documents drawn up but they remained unsigned.  McKail did not get the $130,000.00 loan.  The prisoner acted on behalf of client Sujeeta Singh in relation to the purchase of 82 Douglas Street, Noble Park, which was purchased by Singh on 27 June 2005 from F.I. and I.V. Noyahr for $220,000.00.  The property settled on 28 July 2005 for the amount of $236,436.98 which included stamp duty, costs and registration fees.  The prisoner then prepared a mortgage of land document, unregistered, in relation to 46 Westlands Road, Emerald, with Susanna Kay McKail as Mortgagor and Cornelius Ewald Wildoer as Mortgagee.  The advance was for $130,000.00 and the due date was 28 October 2007.  Wildoer signed the mortgage of land document upon which the prisoner has forged McKail’s signature and witnessed it himself.  On 28 July 2005 the prisoner deposited the $130,000.00 cheque from Wildoer into his ECS2 account no. 55-099-2411 and requested a Special Clearance – Reference No. 3638-41.  The same day the prisoner prepared and signed cheque no. 000220 for the amount of $90,544.02 payable to F & I Noyahr with a narration on the cheque stub of “FI Noyahr Singh/SIJS McKail, bal of purchase 82 Douglas St”.  The prisoner did this to replace the SIJS funds he had taken from his Trust account previously.  The prisoner then used the remainder of Wildoer’s $130,000.00 obtained by deception to make interest payments for his Ponzi scheme, to pay off debts totalling $42,000.00 for client Susanna Kay McKail, for business expenses and for his own personal use.

Charge 15:Cause Trust Account Deficiency of $308,591.74 between 6 June 2005 and 28 November 2005.

1. The prisoner debited the amount of $70,000.00 from his Trust account no. 46-790-7204 on 6 June 2005 by preparing and signing cheque no. 1715 made payable to his ECS2 account no. 455-099-2411.  The prisoner made a false narration, “Cre Slykerman”, on the cheque stub to deliberately misrepresent where the funds actually went.  On 7 June 2005 the prisoner receipted $70,000.00 from Cre Slykerman to be invested in a mortgage loan to Susanna Kay McKail.  The prisoner receipted the funds into his ECS2 receipt book with the narration “McKail Mortgages”.  The prisoner did not prepare any mortgage documents.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds for his own personal use, which in this case he gave $17,000.00 in cash to client Susanna Kay McKail and also prepared cheque no. 000183 in the amount of $54,000.00 with the narration “McKail to MacIntosh” which the prisoner states is an indicator that those funds also went to McKail.  He used the rest for business expenses.

2. On 14 June 2005 the prisoner receipted $130,000.00 into his Trust account no. 46-790-7204 which he received from Margaretha Sijs for the purpose of a loan to Sujeeta Singh as detailed in the receipt narration “Singh Loan”.  The prisoner debited the amount of $130,000.00 from his Trust account no. 46-790-7204 on 14 June 2005 by preparing and signing cheque no. 1725 made payable to his ECS2 account no. 455-099-2411.  The prisoner made a false narration, “M Sijs”, on the cheque stub to deliberately misrepresent where the funds actually went.  Singh did not get the loan of $130,000.00.  The prisoner did not prepare any mortgage documents.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to make interest payments for his Ponzi scheme, for business expenses and for his own personal use.  The prisoner gave the majority of these funds, at least $66,784.00, to client Susanna Kay McKail or to make payments on her behalf.  The prisoner received $16,648.75 in cash but believes the balance of that amount would also have been given to McKail.

3. The prisoner managed the deceased estate of Pearl Evelyn Tate.  On 28 November 2005 the Trust account statement for Tate showed a balance of $440,799.95.  After the prisoner had taken out his costs and the two bequests of $500.00 each to Y. Heading and J. Stamps, the remainder was to be equally disbursed by the prisoner to four beneficiaries being:  Anglicare Victoria, Christian Blind Mission, Melbourne City Mission and the Leprosy Mission.  Each major beneficiary was to receive $108,591.74 or $108,591.75.  Both the Christian Blind Mission and the Leprosy Mission received their bequests on 28 November 2005.  The prisoner did not forward the bequests to Anglicare Victoria – (see Charge 23) nor to the Melbourne City Mission which is the subject of this charge.  The prisoner debited the amount of $108,591.74 from his Trust account no. 46-790-7204 on 29 November 2005 by preparing and signing cheque no. 2237 made payable to his ECS2 account no. 455-099-2411 where it was deposited the same day.  The prisoner made a false narration, “Melbourne City Mission, Estate of Tate”, on the cheque stub to deliberately misrepresent where the funds actually went.  The Melbourne City Mission did not get the bequest of $108,591.74.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to make interest payments for his Ponzi scheme, for loans to Bruce Renowden ($20,000.00) and Terry & Patricia Wright ($40,000.00), to pay out a loan/debt for Susanna Kay McKail ($25,000.00) and for business expenses.

Charge 16:Obtain Property By Deception of $70,000.00 from J.T. Bakker Pty Ltd and Eagleye Pty Ltd on 9 March 2006.

1. On 9 March 2006 the prisoner received two (2) cheques (one for $50,000.00 from J.T. Bakker Pty Ltd and the other for $20,000.00 from Eagleye Pty Ltd) totalling $70,000.00 having misrepresented to both J.T. Bakker Pty Ltd and Eagleye Pty Ltd the money would be lent as a mortgage advance to Dominic & Joanne Perri and secured by a first mortgage against their property being 5 St Helena Place, Rowville.  John Theodore Bakker was a long time investor with the prisoner and invested and lent the prisoner funds to be secured against a first mortgage in return for promised high interest returns.  J.T. Bakker Pty Ltd divided his investments between his two children, daughter Pauline Bakker and son Ian Bakker.  This particular loan was given to Ian Bakker and his wife Christine Bakker and their company Eagleye Pty Ltd.  The prisoner falsely prepared mortgage documents to satisfy both J.T. Bakker Pty Ltd and Eagleye Pty Ltd.  The prisoner compiled a false Epitome of Mortgage and a false Promissory Note drawn up which were signed by Dominic Perri to give Bakker and Eagleye the impression the loan was legitimate and secured.  The Perri’s did not get the $70,000.00 loan as a mortgage advance.  On 9 March 2006 the prisoner deposited the two (2) cheques totalling $70,000.00 received from Bakker and Eagleye into his ECS2 account no. 55-099-2411.  The prisoner has used these funds obtained by deception as follows:  On 14 March 2006 the prisoner prepared and signed cheque no. 000320 for the amount of $83,350.00 payable to the Pure Beverage Group Pty Ltd (Noddy’s Softdrinks), transferred $2,500.00 to his office account no. 46-746-0465 as fees associated with Noddy’s Softdrinks, transferred $1,000.00 to his NAB Flexi account no. 51-815-5760 and provided a $2,000.00 loan to John Edward Wales.

Charge 17:Theft of $20,000.00 from Donald Alan Pascoe on or about 2 May 2006.

1. The prisoner received $20,000,00 from Donald Alan Pascoe on 2 May 2006 and deposited the $20,000.00 into his ECS2 account no. 55-099-2411 the same day.  The prisoner falsely prepared mortgage documents to give Pascoe the impression that the loan was legitimate and properly secured.  The prisoner compiled a false Epitome of Mortgage with Donald Pascoe as Mortgagee and Dominic Michael Perri & Joanne Rosemary Perri as Mortgagor/s.  The principal sum was for $20,000.00 with interest calculated from 3 May 2006.  The Perri’s did not get the $20,000.00 loan as a mortgage advance.  The prisoner used those stolen funds to make interest payments for his Ponzi scheme, for business expenses and for his own personal use.

Charge 18:Obtain Property by Deception of $50,000.00 from Cor Wildoer Pty Ltd and Margaretha Sijs on 24 July 2006.

1. On 21 July 2006 the prisoner received a cheque in the amount of $50,000.00 from Margaretha Sijs having misrepresented to both Cor Wildoer Pty Ltd and M. Sijs the money would be lent as a mortgage advance to Nicholas Florio (as he needed the $50,000.00 for the purchase of Lot 1 Weiss Road, Healesville) and secured by a first mortgage against that same property.  The prisoner falsely prepared mortgage documents to satisfy both Cor Wildoer Pty Ltd and M. Sijs and to give them the impression the loan was legitimate and properly secured.  The prisoner compiled a false Epitome of Mortgage with Cor Wildoer Pty Ltd as Mortgagee and Nicholas Florio as Mortgagor with the principal sum being $50,000.00 with interest calculated from 7 July 2006.  The prisoner then created a false Mortgage of Land document where he forged Nicholas Florio’s signature which he then witnessed himself.  Nicholas Florio did not get the $50,000.00 loan as a mortgage advance.  The prisoner did not register the mortgage until 27 February 2008 because he received a letter from the Field Group (Wildoer’s Accountants) dated 13 February 2008 requiring an Urgent response into why there was no registered mortgage in relation to the “Florio Loan” of $50,000.00.  On 24 July 2006 the prisoner deposited the cheque for $50,000.00 received from Wildoer Pty Ltd & M. Sijs on 21 July 2006 into his ECS2 account no. 55-099-2411.  The prisoner has then used these funds obtained by deception to pay Noddy’s Softdrinks $11,500.00, to make interest payments for his Ponzi scheme, to pay Elmo Enterprises $20,000.00 (associated to Dominic Perri & Noddy’s) and for business expenses.

Charge 19:Cause Trust Account Deficiency of $244,631.35 between 1 February 2006 and 31 August 2006.

1. The prisoner debited the amount of $69,631.35 from his Trust account no. 46-790-7204 on 1 February 2006 by preparing and signing cheque no 2301 made payable to his ECS2 account no 55-099-2411.  The prisoner made a false narration, “Cor Wildoer, S Rahertin or similar, Sijs payment, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner needed those Trust account funds to make interest payments for his Ponzi scheme and for business expenses.

2. The prisoner debited the amount of $175,000.00 from his Trust account no. 46-790-7204 on 31 August 2006 by preparing and signing cheque no. 2397 made payable to his ECS2 account no. 55-099-2411.  The prisoner made a false narration, “M. D’Cesare, matrimonial monies (balance-1667)”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to make interest payments for his Ponzi scheme, to pay off a $22,000.00 debt for client Susanna Kay McKail as well as giving McKail a further $14,729.60 and for business expenses.  The prisoner also raised a cheque for $50,000.00 payable to the City Pacific Law Firm Pty Ltd but he cannot recall what the payment related to

Charge 20:Obtain Property by Deception of $110,000.00 from Cor Wildoer on 25 January 2007.

1. On 25 January 2007 the prisoner received a cheque in the amount of $110,000.00 from Cor Wildoer having misrepresented to Cor Wildoer the money would be lent as a mortgage advance to Maria Di Cesare and secured by a first mortgage against her property of Unit 1/6 Bark Avenue, Rowville.  This all relates back to when the prisoner used Di Cesare’s matrimonial monies detailed previously.  The prisoner acted for Di Cesare in the purchase of Unit 1/6 Bark Avenue, Rowville, which was due  to settle on 25 January 2007.  On 16 January 2007 the prisoner wrote to Di Cesare advising her “we understand that there will be no lender involved in this matter”.  On 25 January 2007 the prisoner withdrew $113,208.49 from his ECS2 account no. 55-099-2411 and transferred those funds to his Trust account no. 46-790-7204 the same day.  Settlement takes place on 25 January 2007 and Di Cesare signs the Transfer of Land.  On 17 January 2008, the prisoner wrote to Di Cesare advising her that her investment of $175,000.00 had earned $6,562.00 in interest for the period 1 September 2006 to 15 January 2007.  On 27 February 2009 Di Cesare is registered on Title – Instrument AF680522G refers.  On 23 February 2009 the prisoner forged Maria Di Cesare’s signature on the Mortgage of Land which he then witnessed himself – Instrument AG410818L refers.  The mortgage was registered by Cor Wildoer Pty Ltd on 19 March 2009.  On 11 May 2010 Di Cesare received a letter from Holt & MacDonald who were acting for Cor Wildoer Pty Ltd and Di Cesare first became aware that a mortgage had been registered over her property of Unit 1/6 Bark Avenue, Rowville, without her knowledge.  Maria Di Cesare did not get the $110,000.00 loan as a mortgage advance.  The prisoner used these funds obtained by deception to repay monies he had previously taken from his Trust account and in this case the funds were used for settlement payments regarding Di Cesare’s purchase of the Rowville property as follows:  Cheque no. 2455 was made payable to the ANZ Bank for the amount of $27,401.99, Cheque no. 2456 was made payable to A. Kyriazis & S.L. England-Kyriazis for the amount of $84,753.57 and Cheque no. 2457 was made payable to Stuart Morgan & Associates for the amount of $649.00.

Charge 21:Theft of $68,000.00 from Paul Schofield on 9 November 2007.

1. The prisoner received $68,000.00 from Paul Schofield on 9 November 2007 and deposited the $68,000.00 into his ECS2 account no. 55-099-2411 the same day.  Schofield had a mortgage over his property of 1/19 Moores Road, Monbulk, and the Mortgagor was Arden Ivor Perkins (EagleHammer Pty Ltd).  The prisoner received instructions from Schofield that he was to reduce the mortgage he had with Perkins by the amount of $68,000.00.  The prisoner did not follow Schofield’s instructions.  Instead, the prisoner used those stolen funds to make interest payments for his Ponzi scheme, to pay Noddy’s Softdrinks $10,000.00 for business expenses and for his own personal use.

Charge 22:Obtain Financial Advantage by Deception of $300,000.00 between 28 November 2007 and 14 December 2007.

1. Between 17 July 2008 and 10 February 2009, the prisoner debited the total amount of $150,000.00 from his Trust account no. 46-790-7204 by preparing and signing each of the three cheques as follows:  Cheque no. 2688 made payable to himself on 17 July 2008 for the amount of $1,500.00, cheque no. 2740 made payable to himself on 22 October 2008 for the amount of $140,000.00 and cheque no. 3007 on 10 February 2009 made payable to himself for the amount of $8,500.00.  The prisoner deposited all three cheques totalling $150,000.00 directly into his personal W/Pac account no. 67-8573 on the same day that he raised each cheque.  These monies all related to Mrs. Jean Dekker, a resident of the Sylvan Glades Retirement Village, who paid the funds as an “Ingoing Contribution” for Unit 11.  The prisoner made the following narration, “Don Collis commission re unit 11 Sylvan Glades” on cheque stub no. 2688 for $1,500.00.  The prisoner made the following false narration, “Decker + Sylvan Glades, purchasing unit Sylvan Glades” on cheque stub no. 2740 for $140,000.00 which deliberately misrepresents where the funds actually went.  The cheque stub for no. 3007 was not located by the receivers.  The prisoner had no reasonable excuse for causing the three trust account deficiencies.  The prisoner used these Trust account funds to make interest payments for his Ponzi scheme, for business expenses including commission to Don Collis of $1,500.00 and for his own personal use.  The prisoner also transferred approximately $53,000.00 to Noddy’s Softdrinks and made payments to BMW which could relate to a car purchased for Noddy’s.  Additional disbursements of these funds are detailed in (xvi) which also relates to Sylvan Glades.

2. The prisoner debited the amount of $230,000.00 from his Trust account no. 46-790-7204 on 26 August 2008 by preparing and signing cheque no. 2711 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds belonged to Paul and Nina Fairchild who’s settlement the prisoner managed.  The prisoner made a false narration, “Aughterson trust ac, P. Fairchild, monies to invest”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to pay Noddy’s Softdrinks $218,000.00, to make interest payments for his Ponzi scheme, to make a payment of $5,000.00 to the Sharron Worrell estate, for business expenses and for his own personal use.

3. The prisoner debited the amount of $113,500.00 from his Trust account no. 46-790-7204 on 18 November 2008 by preparing and signing cheque no. 2749 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds relate to Violet Murphy, now deceased, a resident of the Sylvan Glades Retirement Village, who paid the funds as an “Ingoing Contribution” for Unit 9.  The prisoner made a false narration, “Violet Murphy settlement monies”, on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to pay Noddy’s Softdrinks $65,000.00, to make interest payments for his Ponzi scheme, to pay Barrister fees to Billings & Cloak, for business expenses and for his own personal use.  The prisoner used some of the funds to repay the Grumont estate monies he had taken previously as detailed in (iv), (v) & (vi).  Additional use of these funds form part of the expenditure detailed in (xvii) & (xviii).

4. The prisoner debited the total amount of $37,125.13 from his Trust account no. 46-790-7204 on 15 July 2008 by preparing and signing each of the 3 x cheques as follows:  cheque no. 2758 made payable to himself for the amount of $30,050.16, cheque no. 2760 made payable to himself for the amount of $6,881.26 and cheque no. 2763 made payable to himself for the amount of $193.71.  The prisoner deposited all three cheques totalling $37,125.13 directly into his personal W/Pac account no. 67-8573 the same day.  These funds relate to the deceased estate of Lionel Raisin.  The prisoner made false narrations on all three cheque stubs that “Refer to the Estate of Grumont”, which deliberately misrepresents where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  How the prisoner used these Trust account funds is detailed above in (xvi).

(xviii)The prisoner debited the total amount of $15, 693.94 from his Trust account no. 46-790-7204 on 2 December 2008 by preparing and signing each of the 3 x cheques as follows:  cheque no. 2757 made payable to himself for the amount of $1,931.42, cheque no. 2759 made payable to himself for the amount of $6,881.26 and cheque no. 2761 made payable to himself for the amount of $6,881.26.  The prisoner deposited all three cheques totalling $15,693.94 directly into his personal W/Pac account no. 67-8573 the same day.  These funds relate to the deceased estate of Lionel Raisin.  The prisoner made false narrations on all three cheque stubs that “Refer to the Estate of Grumont”, which deliberately misrepresents where the funds actually went.  The prisoner had no reasonable excuse for causing the trust account deficiency.  How the prisoner used these Trust account funds is detailed above in (xiv) & (xv).

1. The prisoner debited the amount of $290,000.00 from his Trust account no. 46-790-7204 on 29 December 2008 by preparing and signing cheque no. 2779 made payable to Laura Pink.  These monies belonged to Mrs. Dorothy Williams and are the proceeds from the sale of her property located at 30 Francesca Street, Mont Albert.  On 23 December 2008, the prisoner’s Trust account was credited with $432,277.24 being the proceeds from the sale of the Williams’ property in Mont Albert.  On 23 December 2008 the prisoner raised cheque no. 2779 for the amount of $290,000.00 as detailed above, however, it wasn’t debited from the trust account until 29 December 2008.  The prisoner made a false narration, “Dorothy Williams, part proceeds of sale, 30 Francesca St, Mont Albert” on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing that trust account deficiency and he used the $290,000.00 to pay a beneficiary, Laura Pink, from a deceased estate that he had taken monies from previously although he cannot recall which estate.

Charge 25:Obtain a Financial Advantage by Deception of $100,000.00 from Arden Ivor Perkins of EagleHammer Pty Ltd on 20 March 2009.

1. The prisoner needed money for Noddy’s Softdrinks, so he approached Arden Ivor Perkins of EagleHammer Pty Ltd, requesting the $100,000.00 as a loan.  He purported the loan was for client Debra Lee Ceeney and that it would be secured by a first mortgage over the property at 86 Woori Yallock Road, Cockatoo, Vic.  The prisoner produced false Mortgage of Land documents and a false Promissory Note which he showed to Perkins purporting that Debra Lee Ceeney had signed them.  The prisoner had forged Ceeney’s signatures and pretended to witness them himself.  Perkins was unaware that the aforementioned documents were false and he trusted the prisoner as they had had other business dealings over a number of years.  Perkins agreed to loan the money for Ceeney and he electronically transferred the amount of $100,000.00 from his CBA account via Netbank on 23 March 2009 into the prisoner’s Trust account no. 46-790-7204.  Prior to the receipt of the Perkins $100,000.00 loan for Ceeney, the prisoner had already debited his Trust account on 20 March 2009 in the amount of $100,000.00 by preparing and signing cheque no. 3014 made payable to Noddy’s Softdrinks which was deposited into account no. 26-9083 the same day.  The prisoner did this because he knew the loan from Perkins for $100,000.00 was already organized and guaranteed.  The prisoner did not register the mortgage.  The prisoner received a financial advantage being the $100,000.00 loan by deception as he had purported to Perkins that Debra Lee Ceeney had signed the mortgage of land documents and Promissory Note.  The cheque stub was not located by the Receivers.  The prisoner has then transferred the entire $100,000.00 received by deception to Noddy’s Softdrinks.  The prisoner stated Noddy’s was in dire straits in terms of its financial situation with creditors that had to be paid and to buy supplies.  The prisoner also stated that the Noddy’s Christmas sales did not eventuate, an investor insisted on being repaid and Noddy’s had no cash flow as sales were down.

Charge 26:Cause Trust Account Deficiency of $618,600.14 between 8 January 2009 and 11 September 2009.

1. The prisoner debited the amount of $140,000.00 from his Trust account no. 46-790-7204 on 8 January 2009 by preparing and signing cheque no. 2784 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These monies belonged to Mrs. Dorothy Williams, and are the proceeds from the sale of her property located at 30 Francesca Street, Mont Albert.  On 23 December 2008, the prisoner’s Trust account was credited with $432,277.24 being the proceeds from the sale of the Williams property in Mont Albert.  The prisoner made a false narration, “Dorothy Williams, balance of purchase monies 30 Francesca St, Mont Albert, less costs on account” on the cheque stub to deliberately misrepresent where the funds actually went.  The prisoner had no reasonable excuse for causing that trust account deficiency.  The prisoner used the Trust account funds to pay Noddy’s Softdrinks $99,000.00 which includes a $10,000.00 debt for Noddy’s Softdrinks in relation to a van as Noddy’s couldn’t get finance and a $27,000.00 payment to a creditor, and to pay Susanna Kay McKail $8,850.00.  The prisoner also made interest payments for his Ponzi scheme, for business expenses and $23,010.00 for his own personal use.

2. The prisoner debited the amount of $35,000.00 from his Trust account no. 46-790-7204 on 18 February 2009 by preparing and signing cheque no. 3005 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.   The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used the Trust account funds to pay Noddy’s Softdrinks $29,900.00, to make interest payments for his Ponzi scheme, for business expenses and $9,000.00 for his own personal use although he cannot recall what he used the funds for.  Some of the disbursements of the funds listed below relate to expenditure detailed in (iii).

3. The prisoner debited the amount of $18,757.70 from his Trust account no. 46-790-7204 on 27 February 2009 by preparing and signing cheque no. 3011 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  The cheque stub was not located by the Receivers.  These funds relate to the deceased estate of Lionel Raisin.  The prisoner had no reasonable excuse for causing the trust account deficiency.  How the prisoner used these Trust account funds is detailed above in (ii).

4. The prisoner debited the amount of $6,995.00 from his Trust account no. 46-790-7204 on 20 March 2009 by preparing and signing cheque no. 3013 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used the Trust account funds to make interest payments for his Ponzi scheme and for business expenses.

5. The prisoner debited the amount of $65,000.00 from his Trust account no. 46-790-7204 on 14 April 2009 by preparing and signing cheque no. 3030 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds relate to the deceased Estate of Peter Pratt.  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to pay the Sheriffs Office $44,284.93 which would have been a debt that was incurred at Noddy’s Softdrinks, to pay barrister’s fees of $3,700.00 to Greg Andrews, to make interest payments for his Ponzi scheme and for business expenses.

6. The prisoner debited the amount of $10,575.13 from his Trust account no. 46-790-7204 on 19 May 2009 by preparing and signing cheque no. 3043 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds belonged to Glen Daly and Hendrika Collins – (see Charge 24 (ii)).  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to make interest payments for his Ponzi scheme and for business expenses.  Other disbursements made by the prisoner from these funds are detailed below in (vii).

7. The prisoner debited the amount of $55,000.00 from his Trust account no. 46-790-7204 on 22 May 2009 by preparing and signing cheque no. 3044 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds belonged to the Stephenson family.  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to pay Noddy’s Softdrinks $29,000.00, to make interest payments for his Ponzi scheme, for business expenses and for his own personal use.  Other disbursements made by the prisoner are detailed below in (viii).

8. The prisoner debited the amount of $55,000.00 from his Trust account no. 46-790-7204 on 10 June 2009 by preparing and signing cheque no. 3052 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds belonged to the Stephenson family.  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to pay Noddy’s Softdrinks $10,000.00, to make interest payments for his Ponzi scheme, for business expenses and for his own personal use.  The prisoner used some of the funds to repay $43,000.00 to William Bennett, a legitimate heir of the Lionel Raisin deceased estate from which he had taken monies previously as detailed in Charge 24 (xvii).

9. The prisoner debited the amount of $118,500.00 from his Trust account no. 46-790-7204 on 26 June 2009 by preparing and signing cheque no. 3059 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds relate to Iris Marriott, a resident of the Sylvan Glades Retirement Village, who paid the funds as an “Ingoing Contribution” for Unit 7.  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to pay Noddy’s Softdrinks $23,000.00, to make interest payments for his Ponzi scheme, to pay monies owed to Res Ed Pty Ltd $15,000.00 in relation to his interest in the Beacon Cove Port Melbourne apartment, for business expenses and for his own personal use including approximately $4,500.00 relating to overseas expenditure which he withdrew from but wasn’t able to get a refund.  The prisoner used some of the funds to repay $35,000.00 to William Bennett, a legitimate heir of the Lionel Raisin deceased estate from which he had taken monies previously as detailed in Charge 24 (xviii).

10. The prisoner debited the amount of $20,000.00 from his Trust account no. 46-790-7204 on 15 July 2009 by preparing and signing cheque no. 3065 made payable to himself which was deposited into his personal W/Pac account no. 67-8573 the same day.  These funds belonged to Dianne Rayson.  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used those Trust account funds to pay Noddy’s Softdrinks $5,000.00, to make interest payments for his Ponzi scheme, to pay monies owed to Res Ed Pty Ltd $15,000.00 in relation to his interest in the Beacon Cove Port Melbourne apartment, for business expenses and for his own personal use.

11. The prisoner debited the amount of $80,000.00 from his Trust account no. 46-790-7204 on 24 August 2009 by preparing and signing cheque no. 3076 made payable to Noddy’s Softdrinks which was deposited into the Noddy’s Softdrinks W/Pac account no. 26-9083 the same day.  These funds belonged to Zeljko Granic.  The cheque stub was not located by the Receivers.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used the entire amount of those Trust account funds to pay Noddy’s Softdrinks $80,000.00.

12. The prisoner debited the amount of $13,833.01 from his Trust account no. 46-790-7204 on 11 September 2009 by via an Internet transfer directly to his personal W/Pac account no. 67-8573 where it was deposited the same day.  These funds belonged to the deceased estate of Laurence Bourke.  The prisoner had no reasonable excuse for causing the trust account deficiency.  The prisoner used all those Trust account funds to make interest payments for his Ponzi scheme.  

Charge 27:   Cause Trust Account Deficiency of $249,994.00 on 23 September 2009.

1. The prisoner received the amount of $249,994.00 from Margaretha (Cre) Slykerman (Sijs) as the proceeds of an overseas inwards transfer from Holland, which he receipted into his trust account no. 46-790-7204 on 28 April 2005.  Cre and her husband John Slykerman operated and ran the Kenny Lane Nursery business in Monbulk, and after John’s death in the mid 1990’s, Cre ran the business herself until it went into insolvency.  The  prisoner was the solicitor for the estate of John Slykerman, and was also involved in the negotiations in relation to the winding up of Kenny Lane Nurseries Pty Ltd.  The difficulty of this was the sale of the assets could not pay off the debts including a substantial debt with the NAB.  At this time, Cre became ill which required treatment and she recovered in time.  She negotiated with the NAB who forgave all debts in her name.  The aforementioned monies were in Holland at the time of liquidation and weren’t listed as assets to Kenny Lane Nursery.  After the prisoner had receipted those monies into his trust account, he used them, with the knowledge of Cre Sijs, to invest in various mortgages in relation to the purchase of 82 Douglas St, Noble Park, around July 2005.  $160,000.00 was lent to Sujeeta Singh, and $90,000.00 was purported to have been lent to Susanna McKail.  When 82 Douglas St, Noble Park, was sold in January 2006, Cre Sijs did not get her monies back as the prisoner misrepresented to her that her mortgages were still active.  The prisoner had no reasonable excuse for failing to pay or deliver to Cre Sijs (formerly Margaretha Slykerman) her trust monies valued at $249,994.00 which were used over the years to make interest payments for the prisoner’s Ponzi scheme, for business expenses, to pay out clients and for his own personal use.

Law Institute of Victoria and Legal Services Board Investigation  

1. On 23 September 2009 the legal practice of Alan J. Munt and Emerald Conveyancing Services was placed into receivership by the Law Institute of Victoria.  The receivers have seized all available relevant documents/records from the offices of the prisoner as well as the prisoner’s bank records from the financial institutions. 

2. The Law Institute of Victoria and the Legal Services Board investigated and reported upon 34 Fidelity Fund claims pertaining to victims/alleged victims of the prisoner.  As a result of the Fidelity Fund claims, approximately $2.78 million was paid to victims of the prisoner in relation to trust account monies.  This amount does not include interest payments and costs that were awarded in some instances which totalled approximately $86,000.  Victims who invested monies with the prisoner which were not considered trust monies, had their claims wholly disallowed.

POLICE INVESTIGATION

1. In December 2012, the Victoria Police Fraud and Extortion Squad (FES) commenced an investigation into the legal practice of “Alan J. Munt and Emerald Conveyancing Services” from information received from the Law Institute of Victoria and the Legal Services Board – Operation “Symploce” refers.

2. On 5 December 2012, FES detectives met with the prisoner at his workplace in Oakleigh.  The prisoner was informed that the investigation was commencing and it was not proposed to charge him with false documents, false accounting or with small amount offences.  The prisoner told investigators that he would fully co-operate with the police investigation and that he intended to plead guilty.

3. FES detectives gathered relevant documentation from both the Law Institute of Victoria and Legal Services Board including, but not limited to, copies of bank statements, Fidelity Fund claim reports with exhibits and original mortgage files and sale/purchase files pertaining to the prisoner’s legal and general practice.

4. On 3 October 2013, FES detectives met with the prisoner in Richmond.  The purpose of the meeting was to discuss various documents the prisoner had given to Legal Services Board Inspector Colin Chun during a three (3) day period in September 2009.  These documents included a handwritten list, two (2) typed mortgage lists and the notes taken by the Inspector.  The prisoner provided police with information regarding the above documents to assist with their investigation.  The prisoner stated he would provide to police a full statement responding to all allegations.  The prisoner agreed to provide an additional statement regarding other possible investigation/s resulting from his business practices.

5. The prisoner was interviewed by FES detectives on 6 March 2014.  The prisoner made full admissions to the 69 allegations involving theft, obtaining property and financial advantages by deception, and causing trust account deficiencies totalling approximately $4.9 million by way of reading a prepared confessional statement.   The prisoner was charged and bailed to the Melbourne Magistrates’ Court for a Filing Hearing on 11 March 2014.

RESTITUTION

1. An application for restitution will be made regarding monies paid out by the Fidelity Fund claims, payments made by the Legal Practitioners’ Liability Committee and on behalf of victims who have been unsuccessful with their claims.  The amount of restitution has yet to be finalized but is not expected to exceed $5 million.

EXPENDITURE BY PRISONER

1. The Informant conducted an analysis of the various bank accounts associated with the prisoner and bank trace material.  The analysis identified the following major beneficiaries of the prisoner’s offending:

   a.Noddy’s Softdrinks:  Approximately $1.65 million; and

   b.Ponzi scheme:  Approximately $1,110,000.00.

CO-OPERATION BY PRISONER

1. The prisoner contacted the Law Institute of Victoria and self-reported his misconduct to them.  The prisoner has then provided Legal Institute of Victoria Inspector Colin Chun with a handwritten list of clients that had been affected and typed lists of mortgages relating to his Ponzi scheme.  The prisoner has also given Chun additional names and details that didn’t appear on the aforementioned documents.

2. The prisoner co-operated fully with police as first stated by him in December 2012.  He provided additional information when requested and attended the FES offices on several occasions in relation to providing a statement regarding client Susanna Kay McKail.  The level of co-operation of the prisoner is estimated to have saved approximately 18 months to two (2) years of further investigation because a forensic analysis of his accounts was not deemed necessary, nor the requirement to take a further 60 or so witness/victim statements.  

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