R v Tansey
[2012] VSC 221
•31 May 2012
THE SUPREME COURT OF VICTORIA Not Restricted AT MELBOURNE
CRIMINAL DIVISION
S CR 2011 0064
THE QUEEN v DAVID TANSEY
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JUDGE:
ALMOND J
WHERE HELD:
Melbourne
DATE OF HEARING:
26 March 2012
DATE OF SENTENCE:
31 May 2012
CASE MAY BE CITED AS:
R v Tansey
MEDIUM NEUTRAL CITATION:
[2012] VSC 221
Amended 4 June 2012
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CRIMINAL LAW – Sentence – Theft – 25 charges of theft by a solicitor from clients – Plea of guilty – Delay – Previous good character – Compensation – Sentence of four years imprisonment with a non-parole period of two years and six months.
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APPEARANCES:
Counsel Solicitors For the Crown Mr J Champion SC and
Ms A BhaiSolicitor for Public Prosecutions For the Accused Mr P Chadwick SC Victoria Legal Aid For the Legal Services Board Mr S Senathirajah Solicitor Legal Services Board HIS HONOUR:
1 David Michael Tansey, you have pleaded guilty to 25 charges of theft. The offences involved 44 separate transactions and a total amount of $1,990,081.21 stolen from 11 separate clients over a period of 4 ½ years from 13 July 1999 to 14 January 2004. At the time the offences were committed you were a barrister and solicitor of the Supreme Court of Victoria and held a Victorian Practising Certificate. You were initially a partner of Birch Ross & Barlow and then became a sole practitioner, practising under the name Lynch & McDonald.
2 During the relevant period you were between 46 and 50 years old; you were a director of Saul Nominees Pty Ltd (the trustee of your family trust), Shuckers Pty Ltd (the corporate entity behind a restaurant business operated by your wife) and South Eastern Secure Investments Limited (“SESI”) which is a financial institution.
3 An investigation commenced by the Law Institute of Victoria in March 2004 revealed that you had applied certain funds of clients of Birch Ross & Barlow or Lynch & McDonald into accounts held with SESI and without entitlement or authority, transferred funds from those accounts directly or indirectly to the benefit of yourself or family members.
4 I set out the details of your offences as follows:
Charges 1 & 2
5 Ms Thora Nixon was a client of Lynch & McDonald. You had the conduct of her financial affairs. Her funds were held in an SESI investment account in the name of “L & M TST for Nixon T”.
6 On 13 July 1999, you stole $70,000 by drawing a cheque on that account (Charge 1). You used the money to purchase shares in the name of Saul Nominees and also to deposit money into the accounts of Saul Nominees. Between 9 February and 14 October 2003, in four separate transactions, you stole a further $87,919 from the account (Charge 2). You used this money to pay rent on a property in Black Rock and deposited money into the accounts of Lynch & McDonald.
7 On 3 April 2002, you restored $1,738.05 to the account and paid this money to Retirement Services Australia for Ms Nixon’s resident contributions and chemist charges.
8 You told a trust account inspector of the Law Institute of Victoria, who visited your practice on 30 March 2004, following a complaint to the Law Institute of Victoria by Ms Nixon’s niece Ms Jenny Drake, that you had applied certain funds of Ms Nixon’s to renovate Shuckers oyster bar premises.
Charge 3
9 In 1984, you acted on behalf of the executor of the estate of Mrs Hilda Robinson. After the estate was finalised, you continued to act on behalf of the beneficiary, Sister Dorothy Robinson.
10 In December 2000, you instructed share brokers to sell some of Sister Robinson’s shares and received $9,774.51 for the sale of those shares. You deposited the cheque into your son’s SESI Investment Account and later transferred the monies into the accounts of Saul Nominees and Shuckers.
11 In December 2001, you instructed share brokers to sell more of Sister Robinson’s shares and received a cheque for $40,808.22 for the sale of the shares. You deposited the cheque into the SESI Investment Account of Lynch & McDonald and then transferred the money to your American Express account, your ANZ Visa account and your Citibank Gold Visa account. The total amount stolen from Sister Robinson was $50,582.73 (Charge 3).
Charges 4-9, 12 and 14
12 In 1998, Mrs Maud Bourne appointed you to act as one of the executors of her will. Lynch & McDonald were appointed to act as solicitors in the administration of the estate and were entitled to charge the usual legal costs and commissions.
13 Mrs Bourne died on 5 February 2001, leaving assets of approximately $592,000. You deposited those funds into an account created with SESI entitled “David Tansey as Executor Estate of M K Bourne”. You were the sole signatory to that account.
14 You stole $455,000 from the account comprising $60,000 on 22 May 2001 (Charge 4), $70,000 through five separate transactions between 22 May 2001 and 7 December 2001 (Charge 5), $60,000 on 29 June 2001 (Charge 6), $55,000 on 12 July 2001 (Charge 7), $50,000 on 6 August 2001 (Charge 8), $60,000 on 22 August 2001 (Charge 9), $50,000 on 26 August 2001 (Charge 12) and $50,000 on 7 December 2001 (Charge 14).
15 In total, you made 13 unauthorised withdrawals from the account. You deposited the money into the accounts of Shuckers and Saul Nominees, as well as your personal Visa, American Express and Mastercard accounts. In order to pay the beneficiary of the estate, you restored $461,092.30 to the estate.[1]
[1]The offender restored $6,092.30 more than he stole.
16 These repayments comprised $187,720 which was stolen from the estate of Kagan on 25 October 2001; $150,000 which was stolen from the estate of Pincini on 7 March 2002; and $123,372.30 from Saul Nominees.
Charges 10, 11 and 13
17 You acted for the executors of the estate of Mr Benzion Kagan. Money from the estate was held in an SESI account “Lynch & McDonald ITF Est Kagan”. The beneficiaries of the Kagan estate were four individuals and three charities.
18 In December 1997, distributions were made to the four individual beneficiaries. However, no distributions were made to the three charities.
19 You stole $282,520 from the estate by withdrawing money from the SESI account. You stole $85,000 on 25 November 2001 (Charge 10), $187,720 on 25 October 2001 (Charge 11) and $9,800 on 28 November 2001 (Charge 13).
20 You used the $187,720 that you stole on 25 October 2001 to restore funds to the estate of Mrs Bourne so that disbursements could be made to the beneficiary of that estate. You paid the balance into the account of Saul Nominees, your Visa account or to pay the tuition fees for your son at Taylors College.
Charges 15 and 16
21 You acted for the executor of the estate of Ms Eileen Pincini. You and the executor of the estate were signatories to an SESI investment account of the estate.
22 On 7 March 2002, you stole $150,000 from the estate of Ms Pincini (Charge 15). You used this money to restore funds to the estate of Mrs Bourne so that disbursements could be made to the beneficiary of Mrs Bourne’s estate. On 9 May 2002, you stole $50,000 from the estate and deposited the money into the account of Saul Nominees (Charge 16).
23 The following year you restored $177,002.50 to the estate, leaving a deficit of $22,997.50. You obtained the money you used to restore funds into the estate of Ms Pincini by stealing it from Mr Leon Landucci and the estate of Mr Francis McDonald.
Charges 17 and 18
24 You acted for Mr Kenneth Vale in respect of a disputed estate matter. Funds were held in a SESI investment account on behalf of Mr Vale pending the resolution of the dispute.
25 On 20 June 2002, you withdrew $360,000 from the account. Approximately $58,000 of this amount was deposited into the account of Saul Nominees. The balance was used to purchase bank cheques for the purchase by Saul Nominees of a property at Black Rock (Charge 17). Between 27 June 2002 and 17 October 2002, you made a further three withdrawals from the account totalling $26,734 and used these funds for expenses associated with the purchase of the Black Rock property. You also deposited money into the account of Saul Nominees (Charge 18).
Charge 19
26 On 27 March 2003, you withdrew $35,000 from an SESI account held on trust in the estate of Mr Francis McDonald.
27 You used these funds (together with funds misappropriated from Mr Leon Landucci) to restore money to the estate of Pincini so a distribution could be made to one of the beneficiaries of Ms Pincini’s estate.
Charge 20 and 22
28 Mr Leon Landucci held a number of SESI accounts which he alone was authorised to operate. On 27 March 2003, you withdrew $100,000 from an account of Mr Landucci. You used the funds (together with funds misappropriated from the estate of Francis McDonald) to restore money to the estate of Ms Pincini to enable a distribution to one of the beneficiaries of Ms Pincini’s estate (Charge 20).
29 Between 25 August 2003 and 21 December 2003 in three separate transactions, you withdrew $57,002.50 from Mr Landucci’s account. You used $42,000 to restore funds to the estate of Ms Pincini for payment to enable a distribution to beneficiaries. You deposited the balance of the funds into your Visa account and your American Express account (Charge 22).
Charge 21
30 Mr Robert Hunter appointed you as the executor of his estate. He died on 21 October 2002, leaving assets of approximately $765,000. You opened an SESI account entitled “R W Hunter Estate c/o Lynch & McDonald”. You were the sole signatory to that account.
31 On 15 April 2003, you stole $20,000 from the account and on 12 May 2003, a further $15,000. You restored these monies to the account on 20 and 21 May 2003. Between 27 November 2003 and 14 January 2004, you stole a further $38,878.83 from the account. In total, you stole $73,878.83 from the account in five separate transactions (Charge 21).
Charges 23 and 24
32 You were a signatory to the SESI account of the estate of Mr Ernest Mustard. On four occasions between 18 November 2003 and 3 December 2003, you stole a total of $94,136.47 from the account. You used approximately $44,000 to pay off a loan for an AMP life insurance plan in your name. You paid rent on a property in Toorak and paid amounts into your American Express account and Mastercard account (Charge 23).
33 On 20 November 2003, you stole $50,000 from this account. You used these funds to pay approximately $12,000 for rent and a bond on the property in Toorak, $15,000 into your son’s bank account and the balance into your American Express account and your Visa account (Charge 24).
Charge 25
34 Lynch & McDonald were appointed as solicitors in the administration of the estate of Mr John Fogarty.
35 You were a signatory to the SESI account of the estate. On 21 December 2003, you stole $47,307.68 from that account. You used the funds to pay off a loan account with GMAC Financial Services which related to the purchase of a Subaru Impreza.
Summary of charges
36 In total, you stole $1,990,081.21 from 11 separate clients. You restored $674,877, leaving an amount of $1,315.203.36 outstanding.
Impact on victims
37 There were nine victim impact statements in evidence before me, the tenor of which was similar. Though the Legal Practitioners Fidelity Fund compensated most of the victims for their financial losses, the misappropriations nevertheless caused the victims stress and trauma. Your conduct was described as “a grave betrayal of trust” and “reprehensible”. One victim was shocked that a lawyer could use funds belonging to a client for his personal use. Yet others were distressed that you brought disrepute upon a formerly respected legal firm under whose name you carried on your legal practice. One of your victims has suffered great emotional stress and states that she “now questions everything and distrusts everyone”.
38 It is plain that you have caused and, in some cases, continue to cause your former clients and their families distress. Yet not one of those clients expresses any desire for retribution. Rather, they convey their sense of betrayal and deep disappointment.
Penalty for theft
39 The maximum penalty for theft under s 74 of the Crimes Act 1958 is 10 years’ imprisonment.[2] In your case, 15 charges[3] are continuing criminal enterprise offences under s 6H of the Sentencing Act 1991 as they are offences where the value of the property stolen is $50,000 or more.[4] An offender who is found guilty of three or more continuing criminal enterprise offences is a continuing criminal enterprise offender and under the provisions of the Sentencing Act 1991 is liable, for a continuing criminal enterprise offence, to twice the length of the maximum term of imprisonment prescribed. You are therefore liable to a maximum term of imprisonment of 20 years for the continuing criminal enterprise offences.[5]
[2]Crimes Act 1958 (Vic) s 74.
[3]Charges 1, 4, 6-12, 14-17, 20 and 24.
[4]Sentencing Act 1991 s 6H and Schedule 1A.
[5]Sentencing Act 1991 s 6I.
Plea of guilty
40 You were charged with the offences on 9 July 2010 and pleaded guilty on 20 May 2011 at a committal mention although you had earlier foreshadowed that you would plead guilty before the committal mention date. Senior counsel for the prosecution submitted that, from at least 1 October 2010, you indicated an intention that you would plead guilty. In this context, I also take into account in your favour the confessional position that you adopted when you were first interviewed by the account inspector of the Law Institute of Victoria in March or April 2004 and when you were first interviewed by the police on 17 February 2010. I accept your counsel’s submission that your plea of guilty is genuine and that you are entitled to the full benefit of it. You have saved the State and your former clients or their families the expense and stress of a trial. I accept that your plea reflects remorse for your conduct and amounts to an acknowledgement that you have breached the standards to which you were required to adhere. I also take into account the fact that contemporaneously with the initial complaint you saw a counsellor at the Law Institute; that you cooperated with the investigation of your affairs; and that you retained at your own expense a solicitor from Nicholas O’Donohue & Co solicitors to assist in the investigation. Each of these things I regard as objective indicators of your remorse.
41 In addition, your counsel submitted that your offer to consent to removal of your name from the Roll of persons admitted to the legal profession kept by the Court constitutes a recognition that your right to practice has gone and that you are unlikely to ever be a legal practitioner again. Although there was an element of inevitability about removal of your name from the Roll, I do accept your counsel’s submission and take into account your offer as an acknowledgement of your wrongdoing. In passing, I note that my reasons for acceding to the application of the Legal Services Board for removal of your name from the Roll arise from the gravity and numeracy of the offences to which you have pleaded guilty, the duration of offending (in excess of four years) and the fact that money was stolen from elderly and otherwise vulnerable clients who had complete faith and trust in you. I was satisfied that you were not a fit and proper person to remain on the Roll and therefore ordered that your name be removed from it.
Personal circumstances
42 Mr Tansey, you were born in England and came to Australia as a six year old child. You grew up in the Sandringham area. Your father was employed as a manager with the Shell Chemical Company and your mother was employed as an Accounts Clerk with the local council. You won a scholarship to St Kevin’s College and sat your Higher School Certificate in science subjects. You participated in school activities such as rowing, rugby, cadets and amateur dramatics. You weren’t happy with your results and decided to repeat your HSC. You enrolled at Melbourne High School and did well enough to obtain a Commonwealth scholarship and study Arts/Law at Melbourne University.
43 At that time, you lived at home with your girlfriend Janet whom you married during your fourth year of university. You drove taxis and purchased and renovated houses to secure an income. You served articles on completion of your legal course with the firm Ronald Sieman and Hamilton, and in 1977 you were admitted to practice. You then joined the firm Hargreaves in Yarrawonga and moved there, practising in common law work in Victoria and New South Wales. After six months your wife Janet transferred to Yarrawonga. During the six month period that you spent apart your relationship deteriorated. You then separated from Janet. At about the same time, the marriage of your sister-in-law Cindy also broke up. You entered into a relationship with Cindy and moved from Yarrawonga to Leongatha with the firm known as Birch Ross & Barlow. Birch Ross & Barlow subsequently purchased the firm Lynch & McDonald. You became a partner of Lynch & McDonald and moved to Melbourne to become the resident partner with two others. You married Cindy in 1981 and your first child, a daughter, was born in 1982. You lived in Parkdale with your family. In 1984, your first son was born. At the three month check up there were signs that something was wrong. Subsequently, it was diagnosed that he had epilepsy and cerebral palsy as a result of which he needed constant care. Your son lived at the Moira Hospital in Sandringham from the age of 10 months. He was totally dependent on others for all aspects of his existence. You threw yourself heart and soul into every part of the life and care of your child. You served on the committee of the Moira Hospital, becoming Vice-President at one stage. You were also greatly involved in fundraising for the hospital.
44 Unfortunately, your troubles continued with the birth of your second son on 1 January 1985. He was born a haemophiliac and required home injections. Specially treated blood supplies were required. From about 1984 to 1985, domestic life was very difficult for your family. However, your practice was going well. You had a comfortable income without a lavish lifestyle. In 1991, your first son died at the age of 7 years from an epileptic seizure. You did not at that stage seek any professional help but got on with caring for your other two children.
45 In 1996, your wife Cindy injured herself on a winter holiday. Whilst recuperating at a house that your parents owned at Yarrawonga, she met someone else. In December 1996 Cindy left you. During 1996, you sought professional assistance as a couple. Cindy was diagnosed as having a bipolar affective disorder and you were diagnosed with depression and placed on antidepressants. You bought a unit in Sandringham so that Cindy could live near the children and so the children could visit. You resumed living together in 1998 while your second son was still at school. By this time your daughter had gone to college in Sydney.
46 In 2000, Cindy wanted to move to St Kilda and set up an oyster bar in Fitzroy Street, St Kilda. You went along with that. Your house was put on the market but sold for less than expected. You had purchased a terrace house in Grey Street, St Kilda that needed a lot of restoration. Renovations went on for longer than expected and it was necessary for you to live in a serviced apartment. You sold assets to meet your repayments, including the unit in Sandringham and your boat. Meanwhile, Cindy set up the oyster bar business with her sister. It was known as Shucks Oyster Bar. The oyster bar cost far more to set up than anticipated, though it eventually opened for business. At about this time, Cindy’s sister was diagnosed with breast cancer and she decided to move to Perth. The oyster bar was closed with substantial losses.
47 You are unable to say how much money went into Shucks Oyster Bar or the house in Grey Street, St Kilda but your counsel informs me that well over $1 million went into each of them and involved borrowings which you were not able to service on your income as a solicitor. It was in this setting that you started to steal money from clients to meet bills, both for the renovations and for the business. I was informed that you started off in the belief that you would be able to pay back what had been taken when things were sold, but when your assets sold for less than expected you began stealing from one client to restore funds to another.
48 Your counsel has said you instructed him that you lost your sense of consequence, but you felt you had nobody to discuss it with.
49 Your counsel put these matters before me, both by way of an explanation to give the Court an insight into why an otherwise law abiding man would behave the way you did, and also to demonstrate that the money was lost on failed investments rather than on an extravagant lifestyle.
50 Your counsel also relied on the medical report of Dr Ian Katz, consultant psychiatrist, dated 27 October 2004. Dr Katz reported that you had been in his professional care since 24 November 2003 and were being treated intensively, and that you were admitted to the Albert Road Clinic Private Psychiatric Hospital for a two week period in May 2003 and for a four week period in April and May of 2004. Dr Katz expressed the opinion that you have had a longstanding history of depressive disorder complicated by alcohol abuse; and that it is likely that you first became unwell in 1991, although you did not present for treatment until 1996. In his opinion, you were under significant stress and had experienced profound adversity over the years, including from an unhappy marriage, the death of your young son from an epileptic seizure, significant difficulties in relation to your work and coping with the everyday stress of a busy and demanding legal practice and significant financial difficulties. You were severely depressed when you first came to Dr Katz’s attention in November 2003 and you were treated with significant quantities of antidepressant medication. Your depression was complicated by profound anxiety and suicidal ideation.
51 I have also had regard to the medical report of Dr Kevin Ong, consultant forensic psychiatrist dated 21 February 2012. Dr Ong is employed by the Victorian Institute of Forensic Mental Health.
52 In Dr Ong’s opinion, you had a relatively unremarkable developmental history and performed well enough to receive a scholarship to undertake a combined Arts/Law degree at Melbourne University and subsequently ran a relatively successful practice for many years until the current offences occurred. Dr Ong says it would appear that your personal life has been marked by misfortune. He referred to the death of your first son and noted that your other son suffers from haemophilia and has been diagnosed with a schizophrenic illness. Dr Ong says it would appear that you suffered from reactive depressive episodes for several years in the lead up to your offending, suffering from periods of lowered mood, amotivation, tearfulness and thoughts of not wanting to be alive, often in the context of your multiple psychosocial stresses. This was exacerbated by problematic alcohol abuse which, Dr Ong states, would have made you more prone to impulsive and poorly judged acts.
53 On examination, Dr Ong could find no current evidence of major mental illness. You appeared to be in remission with regard to your depressive symptoms. Dr Ong states that it would appear that many of the stressors which contributed to your previous offending have been removed; that you are currently not in a difficult intimate relationship, are no longer exposed to the rigours of a busy legal practice and have undertaken work that has not been particularly onerous. In Dr Ong’s opinion, your risk of re-offending appears to be low.
Delay
54 It is common ground that there has been an inordinate delay prior to you being charged with these offences, for reasons which are not attributable to you. The offences were committed between 13 July 1999 and 14 January 2004. By 30 March 2004, there was a complaint to the Law Institute of Victoria and by April 2004 the Major Fraud Group became involved. Investigations commenced, but for reasons which are not entirely clear, those investigations stalled until January 2010 when the Fraud and Extortion Squad were re-allocated to the investigation. You were formally interviewed by the police for the first time in February 2010.
55 The Crown acknowledged that approximately six years had passed from the time the matter came to the attention of the Law Institute of Victoria and the police and when you were interviewed by the police for the first time. After you were charged in July 2010, there were some further delays related to the nature of the proceedings and negotiations which occurred. Some of the delay in the curial part of the process is attributable to you seeking further time to obtain psychiatric material and legal advice but in relative terms this delay is of no moment. In my view, you are entitled to have the lengthy delay taken into account.
56 First, you have had to live with the knowledge that you will have a custodial sentence imposed with respect to these offences and to that extent your life has been on hold in the interim. Doubtless, the lengthy period of waiting with these matters unresolved has caused you much anxiety. Secondly, whilst there has been one alcohol-related traffic matter since 2004 there has been no other offending and in that sense you have demonstrated that you have rehabilitated yourself. To some extent this is the inevitable consequence of you no longer being in a position of trust as a practising solicitor. Nevertheless I accept there has been an inordinate delay, not attributable to you, which I regard as an important factor which must significantly reduce the severity of the sentence.
Previous good character
57 I accept that you are a person of previous good character. I note your previous community service to the Moira hospital and that you had no prior convictions at the time of the offending. However, as the Court of Appeal said in R v Coukoulis, although the fact that you have had no prior convictions is of importance, it must be recognised that your reputation as a legal practitioner enabled you to obtain the money you stole.[6] Whilst your previous good character has some broad relevance, it is of little weight when dealing with a breach of trust by a solicitor who is an officer of the court. Likewise, the fact that you have lost your right to practise your profession, though relevant, is of less significance when the offence itself constitutes a breach of trust by a solicitor.[7]
[6][2003] VSCA 22, 22-23 [42].
[7]R v Howse [2002] VSC 197, 10 [38].
58 In R v Sarong, Eames J said:
The devastation of the loss of practice and of the good repute among friends and professional colleagues is a profound punishment, but in my view solicitors who abuse the trust of the clients not once but on repeated occasions must understand clearly that the most likely outcome of the repetition of such conduct is imprisonment. A message must be clearly given to solicitors that if they have once foolishly succumbed to financial pressure and have committed theft against a client, they must stop there, report the situation, and not, as happened here, continued to rob Peter to pay Paul in the desperate hope that a miracle might later save them.[8]
[8][2001] VSC 213, 13 [48].
Specific and general deterrence
59 In my view, the predominant sentencing consideration applicable in this case is general deterrence. Specific deterrence, whilst relevant, is of less significance because you have now lost the capacity to offend in this way in the future. I accept without reservation the observations of Dr Ong and the submissions of your counsel to the effect that you are unlikely to reoffend.
60 However, the Court must express its abhorrence and condemnation for your behaviour in order to ensure that the legal practitioners in this State are reminded that the normal punishment for stealing money from clients is a custodial sentence.[9] Such conduct brings the whole legal profession into disrepute and causes others to doubt the integrity of their legal practitioners.[10]
[9]R v John [2001] VSC 416, 3 [15].
[10]R v Coukoulis [2003] VSCA 22, 22 [41].
Mental health
61 It is evident that you may have had a depressive illness at some times during the period of your offending. This provides background to the circumstances of your offending. However, your counsel expressly disavowed any reliance on the principles discerned in R v Verdins which might apply had there been evidence of a causal nexus between your mental health issues and the offending.[11] Nevertheless on the material it appears that you were suffering from a reactive depressive disorder which the Crown concedes provides some context in which to evaluate the question of your moral culpability and I take it into account in that sense. It was not suggested that the depressive condition which you suffered is something that should moderate the proper application of general deterrence principles in this case; it could not be said, and was not contended, that you are not an appropriate medium for making an example to others.[12]
[11]R v Verdins [2007] VSCA 102.
[12]R v Halfpenny [2003] VSC 308, 18 [47].
Compensation
62 Before I sentence you I will deal with the issue of compensation. Senior counsel for the Crown made application on behalf of the Legal Services Board for compensation pursuant to s 86 of the Sentencing Act 1991.[13] The amount of compensation sought of $636,095.14 is not in dispute. You did not formally oppose the making of such an order but your counsel informed me that your circumstances are reduced and are likely to be so for a very long period of time and you currently have no assets.
[13]Sentencing Act 1991 (Vic) s 86.
63 Although there was no evidence to verify counsel’s submission from the bar table that you have no assets, the submission was not challenged and I am willing to accept counsel’s submissions to that effect. I note that you have been unemployed since ceasing your employment as a storeman on 30 November 2011. In this context I also note that you voluntarily made partial restitution of $674,877 which must be acknowledged as a mitigating factor. I also take into account as another indication of your remorse the fact that you did not formally oppose the making of the compensation order or dispute the amount of compensation sought.
64 I am aware that the making of a compensation order will impose a substantial burden on you. By the time you are eligible for parole, you will be aged in your early sixties and it may be difficult to obtain employment. In the exercise of my discretion, in order to ensure that your rehabilitation is not hampered by the imposition of an overly severe compensation order, I order you to pay compensation to the Legal Services Board of $318,047.57 which is half the amount sought.
Sentence
65 In sentencing you I have not sought to differentiate between the gravity of offences of misappropriation for your personal use and misappropriation to restore funds previously stolen. I take the view that the offences are equally serious. Though the latter offending might be in a sense regarded as less serious, because you were not using the money for personal use, they were necessarily carefully premeditated offences and involved concealment of earlier offences. Viewed overall, in my opinion they are all serious offences of stealing money from vulnerable or elderly and trusting clients or their families.
66 I have also reflected on whether there is any objective difference in the seriousness of misappropriation of funds from the SESI accounts of estate clients, namely the estates of Bourne, Kagan, Pincini, McDonald, Hunter, Mustard and Fogarty and the individual clients, Mrs Nixon, Sister Robinson, Mr Landucci and Mr Vale. I consider there is in substance no difference. You were in a fiduciary relationship as solicitor to both the estate clients and the individual clients.
67 Taking into account the above considerations I sentence you as follows:
| CHARGE | TERM OF IMPRISONMENT |
| 1 | 18 months |
| 2 | 18 months |
| 3 | 18 months |
| 4 | 18 months |
| 5 | 18 months |
| 6 | 18 months |
| 7 | 18 months |
| 8 | 18 months |
| 9 | 18 months |
| 10 | 18 months |
| 11 | 24 months |
| 12 | 18 months |
| 13 | 9 months |
| 14 | 18 months |
| 15 | 24 months |
| 16 | 18 months |
| 17 | 36 months |
| 18 | 9 months |
| 19 | 9 months |
| 20 | 18 months |
| 21 | 18 months |
| 22 | 18 months |
| 23 | 18 months |
| 24 | 18 months |
| 25 | 9 months |
68 All of the offences involved misappropriation of funds from SESI accounts in the names of the various clients. Though the method used was essentially the same in each case, the amounts stolen varied and I have broadly taken the approach that the larger the amount stolen the more serious the offence. I propose to treat the sentence on charge 17 of three years’ imprisonment as the base sentence. I regard this as the most serious of the offences involving misappropriation of the largest single amount ($360,000) of estate funds applied for personal use which included the purchase of a property by Saul Nominees in Black Rock. All other sentences are to be served concurrently save where I specifically order cumulation.
69 There were seven rolled up charges. Each rolled up charge involved multiple offences against the same client committed over periods varying between about a fortnight[14] and about 12 months.[15] Considered overall, the rolled up charges demonstrate that your offending occurred with regularity over a protracted period in respect of some of your clients. In my opinion, some cumulation is warranted to reflect the multiplicity of offences.
[14]Rolled up charge 23 totalling $94,136.47 from the estate of Mustard comprising four offences between 18 November 2003 to 3 December 2003.
[15]Rolled up charge 3 in respect of Sister Robinson in the amount of $50,582.73 comprising two offences between December 2000 and December 2001.
Totality
70 Looking at the totality of your criminal behaviour, and considering the appropriate sentence for all of the offences, I have determined to order cumulation of several single transaction charges and one rolled up charge. This is to ensure that your total sentence is not excessive. I have also had regard to sentencing trends in the higher courts of Victoria between 2005-2006 to 2009-2010,[16] amongst other things. Finally, I have had regard to the sentencing range suggested by the prosecution and the defence response to the suggested range.
[16]Sentencing Snapshot 106 published by the Sentencing Advisory Council in March 2011.
71 I make the following orders for cumulation:
· Charge 11: 5 months cumulative on charge 17.
· Charge 1: 3 months cumulative on charges 17 and 11.
· Charge 19: 2 months cumulative on charges 17, 11 and 1.
· Charge 5: 2 months cumulative on charges 17, 11, 1 and 19.
72 This means you have a total effective sentence of four years’ imprisonment. I fix a non-parole period of two years and six months.
73 I declare that you have served 66 days of pre-sentence detention, not including today, and that this period be reckoned as already served under this sentence.
74 Pursuant to s 6AAA of the Sentencing Act 1991 I declare that but for your plea of guilty I would have fixed a total effective sentence of six years with a non-parole period of four years and six months.[17]
[17]Sentencing Act 1991 (Vic) s 6AAA.
75 Pursuant to s 6J of the Sentencing Act 1991, I declare that in respect of charges 1, 4, 6-12, 14-17, 20 and 24 you have been sentenced as a continuing criminal enterprise offender for a continuing criminal enterprise offence. The Court must cause to be entered in the records of the Court in respect of each continuing criminal enterprise offence the fact that you were sentenced for a continuing criminal enterprise offence.[18] That fact will be entered in the records of the court.
[18] Sentencing Act 1991 (Vic) s 6J.
76 I set out below a table of the sentences imposed and an explanatory note relating to the approach I have taken to cumulation.
CHARGE OFFENCE AMOUNT SENTENCE 1
Theft
$70,000 CCE
18 months
2 Theft $87,919
(rolled up charge)
18 months 3 Theft $50,582.73
(rolled up charge)18 months 4
Theft
$60,000 CCE
18 months
5
Theft
$70,000
(rolled up charge)18 months
6
Theft
$60,000 CCE
18 months
7
Theft
$55,000 CCE
18 months
8
Theft
$50,000 CCE
18 months
9
Theft
$60,000 CCE
18 months
10
Theft
$85,000 CCE
18 months
11
Theft
$187,720 CCE
24 months
12
Theft
$50,000 CCE
18 months
13
Theft
$9,800
9 months
14
Theft
$50,000 CCE
18 months
15
Theft
$150,000 CCE
24 months
16
Theft
$50,000 CCE
18 months
17
Theft
$360,000 CCE
36 months
18
Theft
$26,374
(rolled up charge)9 months
19
Theft
$35,000
9 months
20
Theft
$100,000 CCE
18 months
21
Theft
$73,878.33
(rolled up charge)18 months
22
Theft
$57,002.50
(rolled up charge)18 months
23
Theft
$94,136.47
(rolled up charge)
18 months
24
Theft
$50,000 CCE
18 months
25
Theft
$47,307.68
9 months
Explanatory note
I have taken the following approach to sentencing:
(1)For amounts under $50,000 (not CCE offences) – 9 months imprisonment.
(2)For amounts between $50,000 and $100,000 – 18 months imprisonment.
(3)For amounts between $100,001 and $250,000 – 24 months imprisonment.
(4)For amounts between $250,001 and $500,000 – 36 months imprisonment.
77 In relation to cumulation, I consider that:
· Charge 11 is representative of the single transaction charges involving between $100,001 and $250,000;
· Charge 1 is representative of the single transaction charges involving $50,000 and $100,000;
· Charge 19 is representative of the non-CCE single transaction charges involving amounts below $50,000; and
· Charge 5 is representative of the rolled up charges.
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