R v Rollo
[2005] VSC 189
•3 June 2005
| IN THE SUPREME COURT OF VICTORIA | Not Restricted | |
AT MELBOURNE
CRIMINAL DIVISION
No. 1437 of 2005
| THE QUEEN |
| v |
| MARGARET JANE ROLLO |
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JUDGE: | BONGIORNO J | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 April 2005 | |
DATE OF SENTENCE: | 3 June 2005 | |
CASE MAY BE CITED AS: | R v Rollo | |
MEDIUM NEUTRAL CITATION: | [2005] VSC 189 | |
CRIMINAL LAW – sentencing – theft from employer – false accounting – solicitor - position of trust – failure/inability to explain use of stolen funds – restitution.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr K Gilligan | Office of Public Prosecutions |
| For the Accused | Mr C Heliotis, QC | Voitin Walker Davis |
HIS HONOUR:
Margaret Jane Rollo you have pleaded guilty to 14 counts of theft and 9 counts of false accounting in respect of a fraudulent scheme which you perpetrated on your employer, the Transport Accident Commission, between January 2000 and April 2004 when the fraud was discovered. Although these counts refer to a total of about $416,000 the amount you actually derived from the fraud was about $367,000. It is now my duty to sentence you for these offences according to law.
The offences to which you have pleaded guilty were committed whilst you were employed by the T.A.C. as group manager of its Legal Costs Department. You were a solicitor of this Court and held a practicing certificate as such over the whole of the relevant period. In your position at T.A.C. you were responsible for certain matters relating to legal costs payable by and to the Commission in the course of its administration of statutory and common law compensation schemes for the victims of transport accidents in this State.
The various means employed by you in your depredations upon your employer were simple; perhaps they might even be described as naïve. The amazing thing is that none of your peculations were discovered, despite their simplicity, for some four years and then only by what appears to have been a chance query, in April 2004, raised by a staff member of the Commission’s bank who noticed that the name of the payee on a Transport Accident Commission cheque appeared to have been altered. The cheque was for $26,500 and ought to have been paid to a firm of Mildura solicitors. Investigation revealed however that the name of the true payee had been altered to your name. That a statutory corporation’s internal audit system did not pick up irregularities of this nature over such a long period is worthy of comment although that fact does not, of course, lessen your culpability.
An investigation followed the finding of the cheque for $26,500 and, although you initially denied any wrongdoing, you soon realised the futility of taking this position in the face of irrefutable evidence and eventually made a full confession, at least as to how you perpetrated the fraudulent scheme.
Overall you stole 21 cheques, 19 of which were paid into your own bank account. All of them, with one exception, were for amounts of less than $30,000. The significance of that figure was that cheques for greater than that amount required approval by Commission management senior to you.
There were three ways in which you dealt with these cheques to your advantage. The first involved your intercepting a cheque which would be generated in the ordinary course of business. You would then falsify Commission records, change the payee details on the cheque and deposit the cheque into your personal account. This involved scraping the payee’s name off the cheque with a sharp instrument and substituting your own.
The second method you employed was to arrange for an “off line” cheque to be issued on the pretext that money was required to be paid to a creditor as a matter of urgency. You were thus able to have a cheque delivered to you purportedly to send to its payee. You would then misappropriate this cheque, alter the payee details and deposit it into your bank account.
The third method which you used was to intercept legitimate cheques which came to the Commission from its debtors. In these cases you would change the name of the payee from the Commission to your own name and bank the cheque in your own account. None of these fraudulent activities was sophisticated and all of them were inevitably going to be discovered.
On 14 December 2004 you were interviewed by the police. You read a prepared statement in which you admitted stealing approximately $360,000 and said that by that time you had mortgaged your family home in Kew and repaid $340,000 in cash to the Transport Accident Commission. With offsets for money owed to you by the Commission you thus effectively repaid about $351,000, which as you said in your statement, the Commission accepted in full and final settlement of your indebtedness to it. In fact, subsequently you repaid a further $15,000 to bring your total repayment to $366,745 – the full amount that you had stolen from your employer. It was thus fully reimbursed in respect of its loss.
Although you made a full disclosure of the amount you stole from the Transport Accident Commission and the way in which you effected those thefts, you refused to answer any questions by the Police as to what you did with the money you stole. I shall return to this aspect of the case later.
You were born on 9 August 1954 and are, accordingly, now 50 years of age. You are married to a practicing solicitor and have two teenage daughters. You were educated at a private girls’ school in Melbourne where you completed Year 12 in 1971 and proceeded to study arts/law at Melbourne University from which you graduated B.A.,LL.B. in 1976 and 1980 respectively. You subsequently undertook articles and were employed by two reputable firms of Melbourne solicitors until 1987 when you left the second of those firms and began working as a legal costs consultant in a legal costing company. In this position you prepared bills of costs, assessed those costs and appeared at taxation hearings.
In about 1990 you became an equity partner in the costing company and acquired a 25% interest in the business at a cost of $100,000 which you raised by way of a bank loan. In 1991 you acquired a further 25% share in the business at a cost of $10,000. You retained your equity interest in the costing company until October 1998 when you left to work at the Transport Accident Commission. Your leaving the costing company crystallised a debt of over $230,000 which you owed to it on a loan account. This loan account had been raised to record payments made by the company on your behalf in respect of what appeared to have been outside debts. Some, at least, of these were of a domestic nature.
You executed a repayment agreement with respect to this indebtedness supported by an unregistered mortgage over your family home of which you were the sole registered proprietor. You apparently did this without your husband’s knowledge although he had purchased the property with you when it was bought. You sought to discharge the liability by repayments of $3,000 per month but, according to your statement to the police, you found this exceptionally difficult, which difficulty resulted in sometimes late monthly payments and sometimes no monthly payment at all. You also told the police that you used credit cards to raise further funds to meet these repayments and that it was when those credit cards were pushed to their limit that you began misappropriating funds from your employer.
Shortly after your thefts from your employer were discovered you began attending Dr Lester Walton, a psychiatrist who has seen you on a regular basis for a year or so. Dr Walton gave evidence on your sentencing hearing and a report which he wrote dated 21 April 2005 was tendered in evidence. It contains a history which he took from you which is not contested by the Crown and accordingly can be taken as being generally accurate for the purposes of sentencing.
Dr Walton elicited the history from you that you were born and raised in a comfortable Australian middle class family. Your father was a surgeon. Your early years may have been characterised by a degree of tension within your family as perhaps demonstrated by psychological difficulties which beset at least two of your siblings. You have been married twice; the first marriage being of relatively short duration and without children. You now have two daughters who are teenagers.
You described to Dr Walton an upbringing in which you regarded yourself as being the subject of your parents’ (particularly your father’s) aspirations to succeed, which aspirations you evidently fulfilled. You took an Honour’s Degree in History and a Law Degree and embarked upon a legal career, most of which I have already described.
By the time you got to Dr Walton he considered that you were quite overwhelmed by the multiple problems which then confronted you, not the least of which were your thefts from your employer. He described you as sleeping poorly, having nightmares, having a suppressed appetite and having lost weight. He thought you demonstrated some perfectionist tendencies and that you were inclined to contain your feelings within yourself. He said that you have enjoyed a reasonable response to the treatment he has introduced but that, understandably, you have a specific ongoing anxiety with respect to the matters with which the Court is at present concerned.
Dr Walton is of the view that there are relevant psychological factors which have contributed to your offending. He described you as pathologically moulded towards the shouldering of personal problems and that you have suffered from at least nascent depression since childhood. Your failure or inability to share financial difficulties with your husband made you subject to the temptation to misappropriate your employer’s funds in the way you did. However he considers that most of your problems are substantially reversible and overall he considers your risk of re-offending as being reasonably low. He was unable to provide any explanation as to what happened to a large amount of the money you stole other than to suggest that you may have been spending beyond your means in relation to yourself and your children. He used the word “reckless”. In the absence of any other evidence it must be assumed that a large proportion of the money was simply dissipated in circumstances such that it cannot now be accounted for.
Finally, in his evidence, Dr Walton specifically raised the question of your being incarcerated and the problems that will create for you. Gaols are vicious, violent places. Unfortunately, incarceration in such places is the only ultimate sanction society has, at present, to express its condemnation of anti social conduct.
A number of character witnesses were called on your behalf and written testimonials were received in evidence. They spoke of your excellent reputation as a solicitor, as a wife and mother and as a person generally. However, it is trite to observe that it would be remarkable if someone in your position did not have access to a number of respectable citizens who could attest to such a reputation. It is in the nature of the type of offending in which you engaged that the offender will almost always be someone who enjoys a reputation such as yours until the events which bring them before the Court become known. That is not to say though that such evidence is irrelevant. It enures to your benefit as does the fact that you have no prior convictions whatsoever and would appear to have led a life devoid of anti-social behaviour up until this time.
Your counsel made submissions which, if they were accepted, would result in your receiving a non-custodial sentence for these offences. However, proper application of sentencing principles to your case compels the Court to reject these submissions. Whilst imprisonment must be seen as a penalty of last resort by a sentencing court, when, as here, there must be a strong element of general deterrence in the penalty imposed for delinquent behaviour a term of imprisonment is highly indicated. Where aggravating factors such as breach of trust, premeditation and the lack of any real evidence of serious financial need are considered it becomes inevitable. Mitigating factors such as your plea of guilty, total restitution, remorse, extra-curial punishment by the loss of your profession and reputation may moderate the term of such custodial sentence but they do not render it inappropriate.
Your counsel also submitted that as you were not working as a solicitor at the time you stole from the T.A.C. and, indeed had not worked for some time as such, the fact that you were a solicitor should not be taken into account in the sentencing process adverse to your interests. This submission cannot be accepted without qualification. Although Mr Heliotis did not spell it out, a distinction can be made between the position of a solicitor in private practice who steals his client’s money from his trust account and an employee who steals from her employer. The distinction relates to the reliance by the client on the solicitor and the trust placed in him by the client. However, theft from an employer also involves a gross breach of trust particularly, of course, where the employee is able to have access to the employer’s funds. The significance of the employer/employee relationship and its obligations should have been clearly obvious to you because of your legal education if not because you had practised as a solicitor in the past. In this somewhat limited way the fact that you were a solicitor is relevant to the sentencing process.
Finally, in determining the sentence to be imposed upon you I have borne in mind the requirements of proportionality and totality so that your total effective sentence represents an appropriate sentence for the criminal activity in which you have engaged and the minimum term imposed will reflect the fact that it is highly unlikely that you will offend again so that you should be eligible for parole at the earliest date consistent with maintaining the proper objects of the imposition of a gaol sentence in a case such as yours.
Sentence
The sentence of the Court is as follows :-
Count 1: Imprisonment for 2 years
Counts 2 to 19 inclusive, 22 and 23: Imprisonment for 1 year on each count
Counts 20 and 21: Imprisonment for 2 years on each count.
It is further ordered that one month of each of the sentences imposed in respect of counts 2, 4, 6, 8, 10, 12, 14, 15, 17, 18, 19 and 22 be served cumulatively on the sentence imposed in respect of count 1 and that six months of each of the sentences imposed in respect of counts 20 and 21 be served cumulatively upon the sentence imposed on count 1. Thus the total effective sentence is 4 years of which you must serve two years before becoming eligible for parole. There will be a declaration that the period of 36 days is to be reckoned as a period of imprisonment already served under this sentence. This declaration and the fact that it was made will be entered in the records of the Court.
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