R v Penny
[2012] VSC 25
•7 February 2012
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MILDURA
CRIMINAL DIVISION
No. 0004 of 2012
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| BRUCE RICHARD PENNY |
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JUDGE: | KING J | |
WHERE HELD: | Mildura | |
DATE OF HEARING: | 6 February 2012 | |
DATE OF SENTENCE: | 7 February 2012 | |
CASE MAY BE CITED AS: | R v Penny | |
MEDIUM NEUTRAL CITATION: | [2012] VSC 25 | |
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Plea of guilty - Theft (8 Counts), False Accounting (2 Counts), Obtaining financial advantage by deception (9 Counts) - total 7 Million dollars plus – no financial gain by accused, continuing criminal enterprise, position of trust, early plea, previous pillar of community, no criminal history, exemplary character reflecting substantial history of community involvement.
Sentence: 6 Years imprisonment. Minimum of 4 Years.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P Rose S.C. Mr Y Hardjadibrata | Office of Public Prosecution |
| For the Accused | Mr B Walmesley S.C. | Martin, Irwin & Richards |
HER HONOUR:
Bruce Richard Penny you have pleaded guilty to eight charges of theft being charges 1, 3, 4, 5, 6, 17, 18 and 19; two charges of false accounting, being charges 2 and 15; and nine counts of obtaining financial advantage by deceptions, being counts 7, 8, 9, 10, 11, 12, 13, 14 and 16. The maximum penalty for each of the offences to which you have pleaded guilty is 10 years. However, the majority of the charges relating to theft and those of obtaining financial advantage by deception, and more specifically, charges 3 to 6 inclusive, 7 to 14 and 17 to 19 inclusive all carry a maximum penalty, pursuant to s 6H of Part 2B of the Sentencing Act 1991 of 20 years imprisonment. Those offences to which I have just referred and to which you have pleaded guilty are all continuing criminal enterprise offences making you a continuing criminal enterprise offender for the purposes of sentencing for all bar four of the offences.
Your offending has taken place over a lengthy period of time with the first of the charges being November of 1997 and the last the 30th January 2009. You are currently 62 years of age and have no prior convictions.
The circumstances relating to your offending are set out in detail in the prosecution opening for the plea hearing which is Exhibit 1. I do not intend to repeat the whole of that opening and will attempt to make my summation of your offending relatively short and intelligible to any member of the community who wishes to read what in fact has occurred. I have, however, looked closely at the materials contained including the extensive opening and the flow chart that has been provided by the Crown on the plea and have married together the documents to ensure I had a full comprehension of your criminality. The theft charges are relatively straightforward, whilst the false accounting and obtaining by deception a little more complicated.
The background to the actual offending requires me to go back some period of time. As a young man you had, whilst married and supporting a child, trained as an accountant. You had been working for Thomsons, a Mildura based accountancy practice, even prior to qualifying as an accountant, but, ultimately, once you were qualified, you joined them and became a partner at a later stage. You remained there with some, it would appear, time out when you and your family travelled overseas, until your ultimate retirement from the firm in June of 2007.
Eric Biggs was a Mildura Horticulturalist and a successful one. He set up a company called Tatjana Securities Pty Ltd which was a financing business. Thomsons was the company used for the administration and management of that finance business. You whilst at Thomsons took over that management and administration ceasing only in 2009. You were well known to the Biggs family and would have been considered a good family friend.
The Crown submitted that the criteria for lending by the finance company of which you were the administrator would be that it provided loans and leases to low risk clients known to the accountancy firm. It would be for small loans, usually for the purchase of business equipment by persons residing within the area. The items would be purchased and then leased to the client for sums up to but not exceeding $50,000, unless that had been approved by Eric Biggs in writing. These were small loans to local people that were often unsecured. There were to be loan agreements in place signed by a director of Tatjana, and by those who were borrowing the monies. This company is referred to in the Crown opening as old Tatjana because, by 1992, Tatjana Securities (Australia) Pty Ltd was registered and had taken over the business. The directors and shareholders included Eric Biggs, his son John Biggs and subsequently his daughter Beverley Biggs.
Subsequently there was a Melbourne branch of the finance business which was managed by the accounting firm Boyds Partners. You were appointed the company secretary for Tatjana and you continued to manage it and administer the Mildura branch. You were responsible for maintaining the books of account and although you retired in 2007 from Thomsons, you continued the role in respect of Tatjana until your services were dispensed with in 2009.
From approximately 1995, you started to advance moneys, in large sums, and in an unauthorised manner to John Edward Allen, commonly referred to as Ted, who was a school friend of yours, best man at your wedding and it would appear he continued over a lengthy period of time to be someone that you trusted, believed and admired. You had a lengthy period in which you had not been in contact with each other, but by the time of the offending you were very involved and had been for a number of years. He was involved in the mining industry, he did not reside in Mildura, he was not a client of Thomsons, and he had no link to any of the criteria for loans, except your friendship.
Over a period of time you advanced to him very large sums of money, often using false entities or real companies or people who were clients of Thomsons but with slight changes to their names or their details and occasionally directly attributable to Allen. All of these were unauthorised and resulted in the eight charges of theft for which you will be dealt with. These were unauthorised from the very beginning, and that is demonstrated by the lack of proper record keeping relating to those loans.
I shall deal with each of the charges of theft very briefly.
The first theft related to an amount of $518,231.04 in that you issued a cheque for that amount. It was recorded as an unknown borrower with just a loan number of 421. Neither the police or accountants were able to trace the person who received the funds from this cheque, due to the age of the offence.
The second count of theft, charge 3, was in the sum of $950,600, it was a cheque recorded in June 2001 as being a loan to Allen Investments (Queensland) Pty Ltd. The directors of that company were your friend Ted Allen and his wife. The cheque was actually cashed and the proceeds were transferred by telegraphic transfer to an unknown person, once again due to the passage of time.
Charge 4 and charge 5 I will deal with together. They are two counts of theft and both relate to cheques issued on 3 September 2001, the reference being to a company Biscawood Pty Ltd. The first cheque was for $393,584.22. The second cheque was in the sum of $399,832.39. Biscawood Pty Ltd had directors before it was deregistered who were Ted Allen your friend, and his wife Christina.
Charge 6 is a cheque on 31 January 2002 in the sum of $495,766.66. It is recorded as a loan to Dynamic Commodities Pty Ltd, once again, cashed at the Mildura Westpac branch and the funds forwarded to an unknown person by telegraphic transfer. ASIC records show that Ted Allen and Christina Allen were the directors of that company prior to deregistration.
Charge 17 occurred on 11 December 2008. You issued a cheque for $50,000 to JE and C Allen. The account was originally named Christed Pty Ltd, an amalgam of Christina and Ted but later renamed as Ted and Christina Allen.
Charge 18 relates to a cheque drawn 30 December 2008 for $73,419 under the name of JE Allen and deposited into a United States account of Ted Allen
Charge 19 – is the last of the thefts charges and occurred on 30 January 2009 when a cheque in the sum of $137,673.54, again in the name of JE Allen, was deposited into the same United States bank account.
It was in February 2009, very shortly after the issue of the last cheque, that the Tatjana directors became aware that you were continuing to draw funds from the Tatjana bank accounts in defiance of their directions and your access to the bank account of Tatjana was terminated.
In a number of these cases there were no proper records kept, no loan agreements or lease agreements, no files, nothing related to Allen contained on the files and, most importantly, there were no repayments at any stage for any of these advances, either for the principal sum that was borrowed or even the interest that was owing or rental payments that were allegedly due.
The nine charges relating to obtaining financial advantage by deception - being charges 7 through to 14 – and the circumstances relating to those offences, vary to a degree, but have a fairly consistent theme, they are all obtaining financial advantage by evasion of debt by deception. When the accounting system for the company was changed for the 2006 financial year, a number of loans that previously had no names and no attribution to them and only a number such as 421, 465 and similar were given account names and identified borrowers. Loan agreements were produced which were subsequent to the actual date of the loan, they were usually unsigned by the alleged borrower and although no repayments were made on any of these loans the interest that was owing and accruing was in fact recorded as accrued annually and thus increased the balance of the account.
Most of the account names that you gave or purported borrowers that you nominated were known to the firm Thomsons as clients, or were people that you knew, such as your neighbour. These clients, and others, have been contacted and have confirmed that they had no knowledge of the loans or the leases purported to be in their names, and that they had not received the loan moneys, or leased equipment. Some had previously had legitimate loan contracts with Tatjana, but all of those had been repaid and finalised some time prior. I will give two examples: Loan number 421, which was a loan to an unnamed borrower on 30 November 1997 in the sum of $518,231.04; on 30 June 2006 that loan, 421 the unnamed borrower, became Sunset Vineyards with a debt value, at that point, of $1,175,675.58 – there is no name , of the director or secretary of Sunset Vineyards, on the loan document. Sunset Vineyards Management Pty Ltd was, according to ASIC records, a company incorporated to manage a vineyard on behalf of a number of joint venturers, one of whom was you, through the services of a family company. At one point the office address of Thomsons was the registered office and principal place of business of that company. In 2004 that company, Sunset Vineyards, obtained a short-term loan of $15,000 to purchase farming equipment, which had been repaid and finalised. There were no other legitimate borrowings from Tatjana, by that organisation. By 31 December 2008, the amount owed to Tatjana, from the loan known as Sunset Vineyards was $1,459,919.89, as a result of the initial loan amount, together with the accruing interest, over the substantial number of years that had elapsed.
To give another example loan number 465: A loan on 30 June 2001 of $950,600, again to an unnamed borrower, was on 30 June 2006 renamed the borrower becoming Property Group No 1 with a debt of $1,516,459.11, which by 31 December 2008 had become $1,851,595,91 after accrued interest was taken into account. Again ,that was a company with which you had an involvement through Thomsons, and you were, for a period of time, a director of that company. It also had borrowed a small amount of money from Tatjana previously, which had been paid and finalised.
Although the names and organisations varied, the modus operandi that you used was similar and brought about by the desire of the beneficiaries to have access to the books of account of Tatjana, and the arrangements they had made, for the accounts to be changed to the quickbooks software program.
In relation to charges 2, that of false accounting, reconstruction of the books was done that showed that you had placed false entries into the books of account for a period in excess of 11 years, relating to three leases made in fictitious names, which were amounts that were attributable to Ted Allen. Each year the calculated value for the combined asset account for the three leases, was a total of $31,616 and each year they were recorded against, initially, the Standley Asset account and subsequently, from 30 June 2005 to 30 June 2008, under the name of Vescun enterprises.
In relation to Charge 15, you falsely transferred a debt of $82,069.78, from the CG and P Evan loan account, to that of Budd drilling Pty Ltd, a client of yours, but not an entity responsible for that debt. There was no connection between Evans and Budd and no legitimate reason for the transfer. The sum that you transferred, related back to charge 7 - the evasion of debt by deception – a February 1996 false loan to Biscawood Pty Ltd, that you nominated, falsely, on 30 June 2006 to be Budd drilling P/L.
You have made numerous entries in the journals of Tatjana which are inaccurate and false, in respect of the leased debts, usually relating to the Ted Allen accounts. The total for the false accountings - being charges 2 and 15 - are $429,845.78. In relation to the theft and the obtaining financial advantage by deception, the total involved is $7,027,510.95. How you were able to get away with this, for as long as you did, is a matter of some amazement to me.
One of the major reasons, I presume, that this was able to continue unabated was, that you were a trusted friend and confidante of the Briggs’ family.
In 2005, Eric Biggs the founder of this company died and his estate passed to John and Beverley Biggs. The estate was complicated and the matters and disputes were not settled until 2007. There were debts to the Australian Taxation Office, which were unknown, and many other problems. As a result, the Melbourne end of Tatjana Financing was closed down. They ceased using Boyds as their accountants. Charles & Partners took over the accounting and tax agent role, previously performed by Boyds. You continued to manage Tatjana in Mildura, but you were told that, they intended to wind up the Tatjana Finance business in Mildura and that , loans should be curtailed.
John and Beverley Biggs determined, that it would be appropriate to change the accounting software used, to enable them to monitor the accounting books of Tatjana more easily. You were required to provide all of the accounts and all the details relating to those accounts. You were described as, being slow and difficult in providing this information. You provided some of it in 2007. You provided to the secretary, 12 unsigned loan agreements, all of which were prepared and transferred in 2006 by you. They were fictitious and all of the details, apart from the amounts of money involved, were false.
You prepared a trial balance in May 2007, for the year ended 30 June 2006, which included a number of these false entities. All of these were entered onto the new system, by the person employed to do so and provided to the accountants at Charles & Partners, for preparation of accounting records. That material was acted upon and accepted as true and correct. Charles & Partners were requested to assist in the oversight of Tatjana, with a view to winding up the business. Ultimately a solicitor, Peter Maloney, was engaged in late 2008, to assist with assessment and recovery of debts to Tatjana. The solicitor became concerned about the issue of loans, particularly the number of loans which were identified as Allen related loans, of high value, apparently unsecured and involving ‘mining operations’.
At a meeting on 13 February 2009, you provided details about the loans. A number of those details were, later found to be false. On 20 February 2009, you delivered to Charles & Partners a handwritten note and five, unsigned single page loan documents, for loans to Allen, which you identified as Allen Contracting Pty Ltd, Biscawood, Dynamic Commodities, John Edward Allen and John Edward and Christina Allen. The total you identified then, in those accounts, was $2,923,527.63.
On 24 February 2009, the solicitor Moloney contacted Thomsons in relation to two very large loans, being, the Property Group No 1 and Sunset Vineyards, which were investment companies managed by Thomsons. He was told that, both were false and, neither had any such loans in existence.
On 25 February 2009, you emailed Charles & Partners, identified the debt owing to Tatjana, from the five Allen loans as $3,718,926 and included a copy of an email you received from Allen, stating he was in the United States securing funding to finalise the outstanding accounts with Tatjana and to access accounts for his own business.
On 3 March 2009, you attended a meeting with Moloney, Charles and Partners and John Biggs and disclosed, that the loan documentation you had provided was false, and that the false loans, related to Allen. You admitted the loan documents, without signatures, were not true and you agreed to hand over all files.
On 4 March 2009, you, assisted by John Biggs, delivered 10 boxes of records to Charles & Partners. A comprehensive examination was done, including a reconciliation of loans by Charles & Partners. This resulted in a discovery of the thefts and the fraud. The matter was reported to the police on 11 March 2009 and on 16 February 2010, police executed a search warrant and located, a large quantity of documents relating to Tatjana and the accused. You initially made a no comment record of interview, but you re-attended at the police station on 30 November 2010 and you were again interviewed. In a record of interview, you made claims as to the legality of some of the loans.
You told the police that, Ted Allen was a close friend of yours, who you spoke to regularly. You said that, Eric Biggs did approve of the substantial loans without security, that you didn’t receive anything personally or benefit in any way from these thefts and frauds, and you had no comment on why you had given Allen $4.5 million of Tatjana’s money, with absolutely no return, over those years.
You had also continued, after you could no longer access the money from Tatjana, to provide money to Allen, in part from your own resources. You made unauthorised withdrawals, from a Baron Langtree bank account between March and November 2009, of over $130,000. From your own bank, with a company called Medotta Pty Ltd the trustee for your family trust, and you sent many thousands to him, up to June 2009. You were charged on 25 March 2011 and released on bail.
Whilst that is a lengthy summary, it is still far shorter than that contained in the prosecution opening summary. This offending was persistent, lengthy, fraudulent and done in a manner to try and cover your tracks. You commenced your offending at least back in 1995, although you are not charged with any offence prior to 1997, and you will not be punished for any offending not on the indictment, that has a relevance to which I shall subsequently refer.
There are two victim impact statements in this matter. One from John Biggs who resides at Cunamulla in Queensland and who is the son of Eric Biggs and the beneficiary of his estate. The other is from Beverley Ann Biggs, the daughter of Eric Biggs and the sister of John Biggs, also the other beneficiary of the estate. Each of them, unsurprisingly, talk about the shock, anger and dismay they feel at the betrayal of a trusted family friend. They refer to the loss that they have each suffered, which is substantial, in terms of loss of their inheritance, the destruction of what their father had worked so hard to do and build, and the amount of time, effort and money, that has had to go into uncovering your fraudulent activity. All of this has had a major impact on their work and their family life. Whilst you may not have physically harmed either of them, you have brought upon each of them great stress and trauma, and caused a loss of faith in their fellow man, not surprising, when I read the esteem in which you have been held in this community. I take all of that into account in determining the appropriate sentence in this case.
Equally, I take into account that you have pleaded guilty and that you have pleaded guilty at the earliest possible stage, that is the time of committal. Parliament has indicated, that a plea of guilty is to be given an appropriate reduction in sentence, consistent with encouraging people to admit their guilt and express their contrition and remorse, and thus spare the community and the courts the substantial cost, trauma and pain, associated with people having to give evidence and be cross examined. There is no doubt that, these charges represent a serious history of fraud and theft, upon persons who trusted you. It makes the offence, because of your position of trust, at a higher level than it would be otherwise.
I also have to take into account your personal circumstances. You are 62 years of age as I indicated, having been born in Mildura on 5 January 1950. You are married and your wife is aged 58. You married when she was 18 and you were 21 and she has a tea room which she operates in Mildura. None of your family, wife, children or siblings have been in trouble with the police. Your parents are both dead, your father having died in 1993 at the age of 68 and your mother in 2003 at the age of 74. You have three sisters and two brothers and you, are the eldest of all, with their ages ranging from your age of 62 down to 45. You have three children; Matthew aged 37, married with three children, an accountant; Cameron aged 34 who has two children and works as a welder; and a daughter Kristen aged 30, single who works with Tourism Victoria. No one in your family has been treated for any mental health issues over the years.
You went to Mildura West Primary School and from there to Mildura High School, passing Year 11 at the age of 17. You then went to work in the local accounting firm being Thomsons but also working at night undertaking matriculation English. Over a period of some seven years, you completed a certificate in business studies at Mildura Technical College in 1975. You then became a full-time student at Ballarat College of Advanced Education and took two years to complete a degree of business studies. You continued doing some evening accounting work, for your firm ,whilst you were living in Ballarat for two years. You were dux of your course. You returned to Mildura after completing your course, continued working at Thomson & Associates and you were made partner of the firm on 1 April 1979. There are some differences between what is contained in your wife’s character testimonial and what is contained in the history given by Mr. Cummins, but the differences are marginal, as to your qualifications and whether you completed year 12 before leaving school, or subsequently, things of that nature that do not make a substantial difference to your background.
In 1987 you had what you described to Jeffrey Cummins, clinical psychologist, as a mid-life crisis, evidenced by your lack of interest in work. You retired from the partnership and you, your wife and children went overseas for three months. You returned to Mildura, planning to go to Adelaide, to undertake post graduate accounting and business studies, but you were approached by your previous partners at Thomson, asked to rejoin the partnership. Which you did exactly a year later on 1 April 1989.
In 1999 the partnership was taken over, each of the partners, including you, received approximately $1 million and you all became principals, of the newly established business. By 2004, you had relinquished most of your client base to the younger, more aggressive principals and you did accounting work for self-managed superannuation funds, from 2005 through to 2007. It was, according to what you told to Mr Cummins, in May 2007 that you were unilaterally told by your fellow partners, that you were to retire. You thought the younger partners were ruthless and felt the quality of the client service was deteriorating and you happily left. For the next two years you worked from home, that being from 2007, and you continued your accountancy work for Tatjana Securities. You told Mr Cummins that you continued working for Tatjana Securities until April of 2009, when you confessed you’d put some false names on documents. I note, that the detection of this offence was not as a result of your confession, but as a result of dogged determination by the victims to understand what was happening with Tatjana.
Since you have no longer been involved in that workforce, you have helped your wife in her shop and are living off savings. The family home is in your wife’s name and has been for over 12 years. You have never been the subject of ill-health, you have not been a gambler. I am really quite unsure about your status in terms of alcohol, but it certainly does not appear that you were a person who would be described as an alcoholic. You were tested by Mr Cummins in June 2011 and on a Michigan Alcoholism Screening Test, he said, he determined you were either likely to have a drinking problem, or be at serious risk of developing a drinking problem. The description you gave to Mr Cummins, did not seem to indicate that at the time of the offending, you had a drinking problem. Although in his evidence Mr. Cummins stated that you had an alcohol problem, that combined with your depression may have contributed to your offending. In all of the many references I have received on your behalf, including from your wife and daughter, there is no mention of you being alcohol affected over the 10 year period, to which Mr. Cummins referred. It would also seem inconsistent with the high level of community and voluntary work that you were undertaking during that time. It would appear you have sleep apnoea, an enlarged prostate gland, for which you take medication and high blood pressure.
You informed Mr Cummins that, you feel acutely and chronically depressed regarding your offending behaviour and how you have let down so many people, describing yourself as, now feeling chronically sad. That is not surprising, you were well regarded in the City of Mildura. You were considered an important and responsible citizen, that has been exposed as false and I have no doubt you have been the subject of unpleasant remarks and gossip. You feel ostracised by many members of the Mildura community. Whilst many friends have come to support you in this Court a large number, according to the evidence before me, have also turned their backs upon you and your wife.
In the report provided to the court by Mr Cummins in the section headed “Opinion and Conclusions” at page 8, he stated:
On the basis of the history obtained from Mr Penny, it is my opinion he has been suffering from a dysthymic disorder (depressive disorder DSM1V-TR code 300.40) from around 1999 when the accountancy partnership was taken over by a listed company. In my opinion he was depressed whilst offending and his level of depression increased as the funds owed to Tatjana Securities grew in quantum. In my opinion it is therefore open for a court to conclude the principles of Verdins et al were relevant in terms of Mr Penny’s mental state at the time of offending. As a result of suffering from a dysthymic disorder his perception has been compromised and his ability to make rational decisions has been compromised. In my opinion his mental health remains compromised even though he is now taking an antidepressant and receiving psychological treatment. As indicated above, I would expect his mental health would deteriorate – and most probably significantly so – if he were incarcerated.
The false loans to Mr Allen commenced in 1995, some four years before what Mr Cummins refers to, as the takeover by the public company. There is no diagnosis of depression going back to the commencement of your criminal behaviour, it was something Mr. Cummins dealt with in his evidence, but I did not accept his explanation for that. It should also be noted you had not sought any treatment for depression, or any problems prior to these offences coming to light. There is no doubt that you have depression at this stage, how much of it is established, long held depression and how much, is reactive to the circumstances in which you now find yourself, I am unable to determine . You were prescribed anti-depressive medication shortly after these events were discovered and you tried two different types, neither of which you thought worked and until quite recently, had been some two years without taking any anti-depressant medication, resuming only after being advised to do so by Mr. Cummins. You initially, after the offences being discovered, sought treatment with a psychologist in 2008 and ceased that, for an unknown reason. You had no treatment during the intervening period, until after you were charged with these offences and you saw Mr. Cummins and commenced treatment again, this time with a Dr. Mirabelle McConchie in Mildura.
One of the factors I noted in the report given by Dr Mirabell McConchie, clinical psychologist, who has been treating you since August 2011, wherein she says that you described rituals and behaviours consistent with a diagnosis of the anxiety disorder of obsessive compulsive disorder. She says, you are concerned about a fear of failure, but that you denied feeling overly depressed. Her impression, from the seven sessions that you have undertaken together was, that you had suffered a huge negative adjustment to retirement and the subsequent lack of structure in your life. She said, that you identified that you would like to (1) be able to worry less and to gain control of your anxiety related behaviours; (2) to feel better in yourself; and (3) to explore your fear of failure. She wrote at page 2 of the report dated 29 January 2012:
It appeared Mr Penny sought treatment in order to gain support and anxiety management strategies to assist him to negotiate the coming months of legal proceedings.
In respect of the issue of the first limb of Verdins relating to your offending being linked to a mental health condition, I am not satisfied that there is evidence of sufficient weight, to support such a proposition and will not moderate the sentence on that first limb.
In respect of the issue of finding it extremely difficult to cope, as a result of your depression if you were incarcerated, unless you are a person who is used to the environment of prison, I would assume any person would find prison stressful and be anxious about being incarcerated. However, I do accept that you may find incarceration more difficult than the ordinary person, due to your depression and anxiety. I will act upon the basis, that you may be in a more anxious and stressful state than the average prisoner, and I will modify your sentence accordingly.
As indicated, I take into account your plea of guilty together with the indication of remorse that it demonstrates. I do note, in relation to the issue of remorse, that you continued offending right up until the point of discovery and ceased offending, it would appear, only because your ability to access those funds was removed from your control. I have no doubt, that you will not reoffend again in any way similar to this. I doubt you will not be in a position to do so, I doubt anyone will ever trust you with any funds in the future. I do not believe you will be able to practice in any way as an accountant, and any credibility that you had, in the community of Mildura is well and truly gone.
You have expressed shame, embarrassment, remorse and some degree of resentment as to Mr Allen not facing these charges instead of you. You acknowledge that you have been overwhelmed by your legal situation. Your family, who are standing by you, were unsurprisingly appalled and horrified at what you had done over this period of time. You are fortunate, they obviously care for and about you, and have been steadfast in their support of you.
There is an issue of general deterrence, which clearly has to pay a significant part in sentencing. It is real significance. You were in a position of trust, given the ability to handle these accounts without having to get someone else to co-sign or approve and you abused that. Others, who may be like-minded, must be shown through the processes of sentencing, that behaviour of that type will not be tolerated in this community.
The issue of personal deterrence, is not of such a significant level. One of the major reasons being, that you will never be in a position to commit any offence of a similar type again, and that you would have no desire to ever bring that level of shame, humiliation and rejection upon yourself, or your family again. Whilst that reduces the need for specific deterrence, it does not totally eliminate it, you continued with your offending even after it became clear that the beneficiaries were concerned, it continued even after the loans to Allen started to become clear to the solicitor and the accountants, none of that deterred you. Even though your prospects of rehabilitation are quite good, you must understand that significant punishment attends behaviour of this level of criminality.
I note, that in your case you have presented to this court testimonials from 16 individuals in this community, including your wife and your daughter. They are glowing references and describe you as a devoted community member, who provided continual community service to this city of Mildura. You were held in the highest of esteem, and most of those who wrote continue to value your friendship and your input into projects. All of them talk about your honesty and your integrity, your strong sense of morality, of right and wrong, your sound financial judgment, your conservative and careful managing of accounts of community organisations, your kindness to others, to total strangers, to friends, to colleagues. They are some of the most impressive character reports I have ever seen. None of the reports refer in any way to matters that would give any indication of chronic depression, or alcoholism over the time that these witnesses have known you. You have been a very esteemed character in this community, all of which has now been lost.
It is clear that your friends will stand by you, and that is an even stronger indication of the value they place upon your character.
I will take into in your favour, that no only are you a person without prior convictions but, that you are positively a person of good character who has made a significant contribution to the community in which you and your family have resided all these years.
I also take into account your plea of guilty, the early stage at which it was indicated, your expressed remorse, although in that context I note that there has been no attempt at any level of restitution of the funds taken. I note your age, and significantly that the money was not used by you for personal gain, to satisfy a gambling habit or personal aggrandisement. The fact that you now suffer from anxiety and depression is also of some significance. Whilst they are matters I take into account in your favour, they are only some of the factors that I need to consider. I also have to consider the duration of the offending, the high level of offending, the consequences upon the victims of that offending, the level of breach of trust involved, the need for denunciation, general and specific deterrence, and try to impose a just and appropriate sentence.
Accordingly you are convicted and sentenced as follows
Theft
Count 1 and 3 – 3 years imprisonment
Counts 4, 5, 6, and 19 - 2 years six months imprisonment
Counts 17 and 18 – 2 years imprisonment
False Accounting
Count 2 – 12 months imprisonment
Count 15 – 9 months imprisonment
Obtaining financial advantage by deception
Charges 12 and 14 – 3 years and six months imprisonment
Charges 7, 8, 9, 10 and 16 – 2 years imprisonment
Charges 11 and 13 – 2 years and 9 months imprisonment
Direct that charge 12 be the base sentence and that six months of charge 14, and 18 months of charge 1, and six months of count 19 be served cumulatively upon charge 12 and upon each other, making a total of 6 years imprisonment. I direct that all other charges are to be served concurrently with the sentence on count 12. I direct that you are to serve a minimum of 4 years before becoming eligible for parole.
Pursuant to S6AAA I declare that the sentence I would have imposed, but for your plea of guilty, would have been 8 years with a minimum of 6 years. Whilst many may think this a merciful sentence in light of the vast sums of money involved, I have given you great benefit for your previous exemplary life as a citizen of this community.
Pursuant to s.6J of the Sentencing Act it's to be noted in his criminal record that they were continuing criminal offences.
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