R v Valvo

Case •

[2025] NSWDC 422

•

12 February 2025

No judgment structure available for this case.

District Court


New South Wales

  • Amendment notes
Medium Neutral Citation: R v Valvo [2025] NSWDC 422
Hearing dates: 7, 12 February 2025
Date of orders: 12 February 2025
Decision date: 12 February 2025
Jurisdiction:Criminal
Before: Neilson DCJ
Decision:

See par [115].

Catchwords:

CRIME – SENTENCE – Engage in dishonest conduct in relation to a financial product while carrying out a financial services business – Approximately $10,000 taken from each of 12 victims’ superannuation accounts – Offender submitted Change of Account Fees forms to administrator of superannuation fund, known by him to be not genuine – All victims paid back (only 2x wholly by offender) – Little evidence as to financial standing of offender, fine of $20,000 imposed in addition to a suspended sentence of imprisonment.

Legislation Cited:

Corporations Act 2001 (Cth) ss 760A, 1041G, 1311(1)

Crimes Act 1914 (Cth) ss 16A(2), 16C, 17A(1), 20(1)(b)

Cases Cited:

DPP (Cth) v Gregory (2011) 34 VR 1, [53]

Jahandideh v R [2014] NSWCCA 178

Nicholls v R [2016] VSCA 300, [42]

Texts Cited:

Nil.

Category:Sentence
Parties: Crown – R (Cth)
Offender – David Mario Valvo
Representation:

Counsel:
Crown – Ms Wootton, N.
Offender – Mr Clark, B.

Solicitors:
Crown – Office of the Director of Public Prosecutions (Cth)
Offender – Baker Ryrie Rickards Titmarsh
File Number(s): 2024/00113580
Publication restriction: Nil.

Judgment

  1. HIS HONOUR: David Mario Valvo stands for sentence as a consequence of pleading guilty to a charge that between about 23 July 2019 and about 15 January 2020, at Sydney in this State, he did in the course of carrying on a financial services business in this jurisdiction engage in dishonest conduct in relation to a financial product, contrary to s 1041G and s 1311(1) of the Corporations Act 2001 (Cth) (‘Corporations Act’). The maximum penalty for that offence is 15 years imprisonment and/or a fine in the circumstances of this case amounting to $945,000.

  2. The following are the particulars of the charge: the offender did on or about 23 July 2019, 7 August 2019, 3 September 2019, 7 November 2019, 26 November 2019 and 17 December 2019, in the course of carrying out the business known as Your Financial Freedom Pty Ltd, completed and submitted Change of Account Fees forms to Macquarie Investment Management Pty Ltd to pay “adviser fees - ad hoc” in the amount of $10,000 or $5,000 in relation to Wealthtrac Superannuation Master Trust and Todd Haywood, Deborah Logan, Francis Muir, Camille Usher, Garry Whan, Romolo Costagliola, Ilija Bicanic, Jane Aming, David Attard, Megan Attard, Alexandra Bartlett and Prodomos Aspris, which the offender knew were not genuine. The offence can be seen as a “rolled up” offence in respect of the 12 personal victims of the offender’s activity.

  3. The offender became a registered financial adviser on 1 February 2004. His registered number on the financial services register was 273031. At all relevant times during the period of his offending between July 2019 and January 2020, the offender was the sole director and sole shareholder of Your Financial Freedom Pty Ltd. That company had been registered on 19 June 1998. As far as I am aware it has not yet been deregistered.

  4. The offender was, in essence, the personal financial adviser to each of the 12 individuals from whom he extracted unauthorised fees. The superannuation company with which he mainly dealt was known as Wealthtrac. The Wealthtrac Superannuation Master Trust is a superannuation fund administered by Wealthtrac Pty Ltd. The trustee of Wealthtrac is Oasis Fund Management Ltd. Oasis is a subsidiary of Insignia Financial Ltd. Oasis outsourced the administration function of the superannuation fund to a subsidiary of the Macquarie Bank.

  5. Members of the Wealthtrac superannuation fund may pay adviser service fees for financial advice provided in managing their superannuation accounts. These are known as adviser fees. Depending on the agreement between the Wealthtrac member and the financial adviser, adviser fees may be charged in various ways, including by paying a fee for each transaction, or by paying a one-off amount for advice such as an initial advice fee, or an ad hoc statement of advice, or by paying a monthly ongoing fixed-term fee based on a certain percentage of the value of the member’s interest in the superannuation fund.

  6. For an adviser fee to be deducted from a Wealthtrac member’s account, the financial adviser - in the present case the offender - was required to submit either an electronic or hard copy advice consent fee form to the administrator. The adviser fee form was required to be signed or electronically authorised by the client who was to pay the fee from his or her superannuation fund. As part of the commission arrangement between the offender and the administrator, a percentage of the commission was held by the administrator. In addition, Wealthtrac superannuation members were charged an adviser fee and a 2.5% charge representing GST.

Victims

Mr Haywood

  1. The first personal client was Mr Todd Haywood. Mr Haywood is married to Ms Alison Scown and works as a director and senior consultant. In around 2001 the offender became their financial planner. Sometime between 2008 and 2011 Mr Haywood arranged for his superannuation to be rolled over into the Wealthtrac superannuation fund. On 23 July 2019, an email was sent by the offender to Wealthtrac attaching two adviser fee forms, including one in Mr Haywood’s name. The email was sent with the offender’s email signature.

  2. One of the forms attached to that communication was entitled “Change of Account Fees” and purported to authorise and direct the withdrawal of an ad hoc fee of $10,000 from Mr Haywood’s Wealthtrac account. The “client signature” was signed in Mr Haywood’s name. However, it was not his signature. Mr Haywood had never discussed the withdrawal of an ad hoc fee of $10,000 with the offender and had not signed the form which purported to carry his signature. It is clear that his signature was forged. All told, the total fees taken were $10,554.95, which included the ad hoc fee of $10,000 plus non-refundable GST, which was $250. I assume the balance of the sum was some form of administrative expense.

  3. In late 2020, Mr Haywood logged into the Wealthtrac and noticed a $10,000 fee had been withdrawn from his superannuation account. Mr Haywood raised that with the offender, who said that it must have been a mistake and, later, that the ad hoc fee was intended to come from another client with the surname “Howard”. The offender told Mr Haywood that it was too much of a problem to get the money back into the superannuation account and instead offered to transfer the money directly to Mr Haywood’s bank account.

  4. A handwritten file note dated 18 November 2019 was located in the file that had been made by the offender for Mr Haywood. The file note said this:

“Todd calls me saying that he has changed his mind with the ‘one-off’ fee of $10,000 multiplied by two for himself and his wife Ms Alison Scown. I asked him, ‘Why the change of heart?’ He replied that due to inhouse advisory he had been given from his accountant, he was setting up a SMSF [self-managed superannuation fund]. So the $20,000 would go straight into the new fund and of course my future fees for service were no longer required.”

This appears to have been an attempt to explain what had happened, placed in the file by the offender. The purported conversation with Mr Haywood had never occurred.

  1. On 21 November 2020, the offender transferred $10,000 to Mr Haywood’s bank account from his personal bank account as a refund for the ad hoc fees. Later, the balance of the moneys lost by Mr Haywood were reimbursed by Oasis. The amount that the offender tried to take from Mr Haywood amounted to some 2% of his total superannuation moneys at the time.

Ms Logan

  1. The next client was Ms Deborah Logan. She is a qualified remedial massage therapist and runs her own business. She had met the offender in 1997. She had never used a financial adviser prior to that time. The offender was recommended to Ms Logan by her tax agent.

  2. In around December 2008, a Wealthtrac superannuation account was opened in Ms Logan’s name and the funds in her previous superannuation account were transferred to the Wealthtrac account. The Wealthtrac “Superannuation Application Form” in Ms Logan’s name bears the date 16 December 2008, and marked a 4.4% deferred fee and an adviser fee of 1.1% in the initial contribution and adviser service fee sections.

  3. On 7 August 2019, the offender sent an email to Wealthtrac attaching two adviser fee forms, including one in Ms Logan’s name. It was sent with the offender’s email signature. One of the attached adviser fee forms was entitled “Change of Account Fees” and purported to authorise and direct the withdrawal of an ad hoc fee of $10,000 from Ms Logan’s Wealthtrac account to the offender. The client signature section on the form was signed in Ms Logan’s name. The offender signed the section of the form required of him. Both signatures were dated 8 August 2019.

  4. The offender never discussed the withdrawal of a $10,000 fee with Ms Logan. Ms Logan did not sign the form and the signature which purports to be hers, was not hers. She did not provide any authority for anyone to sign the form on her behalf.

  5. On 4 September 2019, adviser fees of $10,408.67 were withdrawn from Ms Logan’s Wealthtrac account. They included the ad hoc fee of $10,000 plus non-refundable GST of $250 and obviously some further charges.

  6. By February 2020, Ms Logan had not heard from the offender for more than two years. She made an appointment to meet a new financial planner in July 2020 and then discovered the fee of $10,000 which had not been authorised by her. The ad hoc fee charged by the offender unlawfully amounted to about 6% of Ms Logan’s superannuation account balance as at the date of the payment of the fee. Like most of the other personal victims of the offender’s activity, she has been reimbursed by Oasis.

Mr Muir and Ms Usher

  1. The next victim is Mr Francis Muir. He and another victim, Ms Camille Usher, are a couple. Mr Muir is a builder and director of a family construction business and Ms Usher is the administration/office manager of that same business. After first meeting the offender, Mr Muir and Ms Usher opened a Wealthtrac account. Subsequently, they agreed to proceed with a recommendation, and in or around November or December 2008 a Wealthtrac account was opened for them.

  2. On 3 September 2019, an email was sent by the offender to Wealthtrac attaching a change of account fee form for Mr Muir and Ms Usher. Each of Mr Muir and Ms Usher was charged an ad hoc fee of $10,000. On 9 October, $10,370.37 was withdrawn from Mr Muir’s Wealthtrac account. That included the $10,000 ad hoc fee. On the following day, 10 October 2019, an amount of $10,370.89 was withdrawn from Ms Usher’s Wealthtrac account. The basis of that was, of course, the $10,000 ad hoc fee for services that were not provided.

  3. Mr Muir had no contact with the offender since early 2019 and had not seen the form and stated that the signature on the form that was purported to be his was not his. Ms Usher did not have any conversation with the offender about the ad hoc fee and certainly did not authorise it. She had not heard from the offender since September 2019 and had not received services from the offender that might justify his charging her $10,000. Ms Usher states that the signature on the form which purported to be hers was not hers.

  4. The amount deducted from Mr Muir’s superannuation account amounted to about 7% of his superannuation. The amount of money deducted from Ms Usher’s superannuation account represented about 7% of her superannuation. They were eventually reimbursed by Oasis.

Mr Whan

  1. The next victim of the offender is Mr Garry Whan. Mr Whan is a married man and works as the manager of an air conditioning, mechanical services business. Mr Whan met the offender in or around 2012. Mr Whan had had little experience with financial advisers prior to meeting the offender. Mr Whan said that the offender did not speak to him about his fees during the first meeting but said he thought there was a fee attached to the offender’s providing him with a service.

  2. In May 2013, the offender recommended to Mr Whan that he and his wife switch their superannuation account to Wealthtrac. Mr Whan agreed to do so. The Wealthtrac superannuation application form in Mr Whan’s name bears date 20 May 2013 and provided for a 1.1% ongoing monthly adviser fee.

  3. On 3 September 2019, the offender sent an email to Wealthtrac including with the forms concerning Mr Muir and Ms Usher, a form in Mr Whan’s name. It purported to authorise and direct the withdrawal of $10,000 from Mr Whan’s Wealthtrac account.

  4. On 3 October 2019, $10,421.02 was withdrawn from Mr Whan’s Wealthtrac account. At the base of that amount is the $10,000 ad hoc fee for service claimed by the offender. Mr Whan was unable to recall any phone calls or discussions with the offender about the $10,000 fee in September 2019. He did not authorise the fee and the signature on the form which purported to be his was not in fact his signature. The amount taken from Mr Whan’s superannuation fund amounted to roughly 7.5% of the total superannuation then available in his account.

Mr Costagliola

  1. The next victim, the sixth victim of the offender’s conduct, is Mr Romolo Costagliola.

  2. Mr Costagliola met the offender when they were at school together in 1963. They reconnected in the late 1970s or early 1980s and spoke a few times each year. Mr Costagliola had never had a financial adviser before appointing the offender to manage his superannuation in around 2005. At the time Mr Costagliola said that the offender said something to him to the effect of “I probably won’t charge anything” for managing his superannuation fund. Mr Costagliola said that he did not expect the offender to charge him anything for what the offender did for him. On the offender’s recommendation, Mr Costagliola set up a Wealthtrac superannuation fund account in early 2011.

  3. On 22 February 2011, a Wealthtrac “transfer request authority” form was completed by Mr Costagliola. The form marked a deferred fee of 1.1% and an adviser fee of 1.1%.

  4. On 7 November 2019, the offender sent an email to Wealthtrac attaching seven adviser fee forms, including that of Mr Costagliola. It purported to authorise and direct the payment of an ad hoc fee of $10,000 from Mr Costagliola’s Wealthtrac account. The client signature section of the form purported to carry Mr Costagliola’s signature.

  5. On 4 December 2019, a total fee of $10,571.51 was withdrawn from Mr Costagliola’s Wealthtrac Account. The majority of that of course was the $10,000 ad hoc fee. A handwritten file note dated 7 November 2019 was found in the file that had been kept by the offender concerning Mr Costagliola. The file note is this;

“Mr Costagliola and I met to discuss the review of his super with Wealthtrac which he is extremely happy with as the bull market currently is very pleasing but as returns as [sic] so he has no hesitation in granting me a one-off ad hoc fee of $10,000 for continual updating and monitoring I have personally provided [to] him. His previous fund was far too conservative for his investment profile, he is very happy with my advice, [illegible] as of 1/1/21 all grandfathering was to stop due to a government legislated act and that the 1-off ad hoc fee was [to] last me the entirety of my business association with him and still maintain a high degree of meetings, review and advice.”

Mr Costagliola gave no consent or authority for the ad hoc fee. He stated that if the offender had asked him for authority to withdraw an ad hoc fee of $10,000 from his superannuation, he would have declined to do so.

  1. The conversation reported in the file note did not occur. Mr Costagliola states that the handwriting on the form was not his handwriting and the signature on the form which purported to be his signature, was not his at all. The file note clearly was an attempt by the offender to cover up his wrongdoing or to use the vernacular, to “cover his own backside”.

  2. In early 2020, Mr Costagliola checked his superannuation statement and noticed that the $10,571.51 fee had been withdrawn from his account in December 2019. That was the first time that he knew that he had been charged such a fee. That day or the following day, Mr Costagliola called the offender and asked what the last adviser fee was. The offender told him that he did not know what it was, and he would investigate. The following day the offender called Mr Costagliola and said that Wealthtrac had accidently withdrawn the money and paid it to someone in Melbourne. Mr Costagliola said he wanted the money back and the offender said, he would speak to Wealthtrac. The offender subsequently called Mr Costagliola and said that it would be too hard to return the money into his Wealthtrac Account because of administrative reasons and that he would pay the money into Mr Costagliola’s personal bank account.

  3. Mr Costagliola was insistent that he wanted the money back into his superannuation fund because he did not want it to affect his pension payments and the money should have been earning interest. The offender told Mr Costagliola that he would sort it out for him.

  4. On 29 April 2020 Mr Costagliola sent an email to the offender stating this;

“Hi David,

This is a printout of just the fees for the last 13 months. Your fees are approximately double their admin every month. I’d probably earn more if I bought shares myself. Not happy Dave. The thing is that you had told me that you’re not going to charge me. We hardly ever spoke about my super and you were getting $310 per month in adviser fees. I trusted you and did not check all this until now. David this is so unfair. How much have I paid over the 17 years? See my estimate attached. The pink highlighting area is the estimate and above that is extracted from the Wealthtrac site, this is without looking at Trudy’s super as I don’t have access to this. I just am also unhappy because each time I spoke to you, you gave me a different story. Today you told me they made a mistake. The other day you told me you filled out the form wrong. Very upset. Don’t ring me today as I really don’t want to talk about right now. I am hoping that as a friend you’ll make right everything. Ring me when you hear back from them.

Your friend?

Rom”

  1. On 30 April 2020 the offender sent an email to Wealthtrac. The substance of that was this:

“I wish to reverse the ad hoc fee I charged Mr Costagliola back in November 2019. I await the account number and reference from you so I can refund into that account. Then in turn you can reimburse my client.”

On 29 May 2020 $10,250 was refunded into Mr Costagliola’s Wealthtrac amount. This amount did not cover the $321.51 of the ongoing monthly fees withdrawn from Mr Costagliola’s account in December 2019.

Mr Bicanic

  1. The next victim is Mr Ilija Bicanic. Mr Bicanic is an accountant who owns his own business called Bicanic Tax Service. He started that business in 1996. Mr Bicanic met the offender when he was working for ITP Accounting, and the offender was the financial adviser for many of their clients. During that time the offender and Mr Bicanic became good friends. When Mr Bicanic started his business, the offender became his personal financial adviser and managed his superannuation and insurances. Mr Bicanic said the offender never discussed his fees with him. Mr Bicanic said that he thought that the offender was looking after his superannuation as a friend.

  2. In March or April 2012, the offender recommended to Mr Bicanic that he transfer his superannuation to Wealthtrac. A Wealthtrac account was opened for Mr Bicanic in about April 2012. The form filled out and completed in Mr Bicanic’s name dated 3 April 2012 marked an ongoing adviser fee of 1.1%. On 7 November 2019, one of the seven adviser fee forms sent by the offender to Wealthtrac was one for Mr Bicanic charging an ad hoc fee of $10,000. On 4 December 2019, $10,481.97 was withdrawn from Mr Bicanic’s Wealthtrac account.

  1. The offender placed a file note in his file concerning Mr Bicanic. The file note said this:

“Mr Bicanic and I do a review of his super and he is happy with the performance and the funds under management with Wealthtrac, as the returns are quite positive and consistent, when I asked him would he mind paying a one-off ad hoc fee of $10,000 he is okay with that as he feels I have continually pointed him in the right direction with all my advice to date, his previous fund was far too conservative for his risk profile.”

  1. Mr Bicanic gave no consent or authority for the charging of the ad hoc fee. He has stated that he would never have authorised the withdrawal of $10,000 from his superannuation fund. He said the conversation recorded in the file note did not happen and that the signature that purports to be his on the form was not in fact his signature.

  2. In May 2020, Mr Bicanic logged on to the Wealthtrac online account and noticed the adviser fee of $10,481.97 was withdrawn on 14 December 2019. He also noticed ongoing monthly adviser fees had been withdrawn each month. On the same day he called the offender and asked him about the large adviser fee. The offender told him that it was Wealthtrac’s mistake and that it should have been withdrawn from a different client account.

  3. On 14 May 2020, the offender offered $11,000 from his personal company’s bank account with a transaction described as a refund to Mr Bicanic’s personal bank account. Subsequently, Mr Bicanic spoke with Wealthtrac and obtained a copy of the form purportedly signed by him, authorising the withdrawal. The offender told Mr Bicanic that one of the staff in his office must have sent the form. In view of the other transactions, that appears to be extremely unlikely and most probably an untruth.

  4. On 15 December 2020, the offender visited Mr Bicanic at his office. The offender apologised and said, “What can I do to make this go away and save the friendship?” Mr Bicanic replied, “Nothing.”

  5. On 23 December 2020, Mr Bicanic’s superannuation fund rolled over from Wealthtrac to Health Employees Superannuation Trust Australia. The balance of Mr Bicanic’s superannuation at the time was just under $300,000. The ad hoc fee represented approximately 3.5% of Mr Bicanic’s superannuation account as at December 2020.

  6. Between January 2017 and January 2021, the offender received a total of $18,840.27 in fees related to Mr Bicanic’s Wealthtrac account. The ad hoc fee represented approximately 51% of the total adviser fees paid by Mr Bicanic in that period. The ad hoc fee of $10,000, not including the applicable GST, represented approximately 55% of the total adviser fees for that period.

  7. Mr Bicanic made a victim impact statement. It is succinct. It says this:

“I have known David Valvo for over 30 years, both professionally and as a personal friend. I was and I am deeply affected by betrayal of my trust in him. It also affected me to lose a respect and trust in people who we should trust and place our financial affairs in their hands. It made me overly sceptical and distrustful of people that I should trust. I’m a registered tax agent and Justice of the Peace and expect high standards of people in my profession. I consider David to be in the same category.

His action of forging my signature to obtain a financial benefit of $10,000 came as a shock to me. Who can I trust, if not my financial adviser and dear friend?

Fortunately, since I discovered the fraud, money was returned to me promptly by David Valvo, with clumsy explanations that it was the fault of someone else and [not] him. This made it worse. Trying to blame someone else, but himself.”

Ms Aming

  1. The next victim is Ms Jane Aming. Ms Aming works a short order cook at a BP truck stop. She met the offender in around 1995. Ms Aming did not have a financial adviser and did not understand how superannuation worked. The offender became her financial adviser around 1997. In or about September 2008, Ms Aming said that the offender recommended that she transfer her superannuation into a Wealthtrac account. In September 2008 a form was completed for Ms Aming to open her Wealthtrac account. The form marked a 1.1% deferred fee and a 1.1% ongoing adviser service fee. The form was signed on 29 September 2019.

  2. On 7 November 2019, the offender in his email to Wealthtrac enclosed a form charging an ad hoc fee of $5,000 from Ms Aming’s Wealthtrac account. On 24 January 2020 an adviser fee of $10,481.97 was withdrawn from Ms Aming’s Wealthtrac account. This included the ad hoc fee of $5,000 plus a refundable GST of $125. Despite the offender submitting the ad hoc fee form on 7 November 2019, the fee was not deducted from her Wealthtrac account until 24 January 2020. In addition, there was a processing error on behalf of the superannuation fund which resulted in a $10,000 ad hoc adviser fee being charged, and subsequently $5,125 was refunded to Ms Aming’s Wealthtrac superannuation account on 14 July 2020.

  3. The offender placed a handwritten file note on Ms Aming’s file on 7 November 2019. That file note said this:

“We met at her workplace to discuss my ongoing fees and services. I explained to Jane that ongoing trail fee of 1.1% would cease on 1 January 2021 due to new rules introduced by government concerning abolishing grandfathering and that, regardless of that decision, it was my duty as her adviser to continue in the same vein of servicing her year in and year out until either my full retirement and/or unforeseen circumstances with our business relationship. Jane was happy for me to charge her a figure of $10,000 as she knew that would have to last me for theoretically many years.

Jane, as is the majority of my clients, relies on me for more than just financial planning. I have assisted her in many positive directions such as [with] home loan, solicitor, accountant, car loan, et cetera, and given her the contact details of those individuals without (of course) promoting the individual product (As that is not my expertise and contravenes my eligibility to be an adviser or TfLG). Basically I told Jane as in all my clients I am the GP and will point you in the right direction of the specialist. All forms signed by Jane including ad hoc fee put opt in, also explained to Jane it was a one-off fee.”

Ms Aming gave no consent or authority to the offender for this ad hoc fee. Ms Aming did not have any meeting or discussion with the offender at or about the time that this was done. Ms Aming states that the handwriting on the form was not her handwriting and the signature on the form which purports to be hers was not her signature. The ad hoc fee charged by the offender to Ms Aming amounted to about 6% of her superannuation.

  1. Ms Aming provided a victim impact statement. It commences in this fashion:

“My name is Jane Aming, and I am 62 years old. I considered Dave Valvo to be a friend as he plays snooker and pool with my two sons. We saw him at tournaments all the time. I have worked at a function for him and his wife, as a caterer. I have taken my nieces and nephews to his comedy shows. I thought he was someone I could trust. When I found out that what Dave did, I was shocked and hurt. I thought that my super wasn’t increasing due to COVID, that things were just slow. I never considered that Dave could have taken my money. Finding out that is what happened has been emotional for me. I feel that Dave betrayed me. I became afraid of bumping into Dave when attending snooker games. I would ask my daughter to attend the games with me so we could keep an eye out for Dave and make a quick exit if he was there. What he did has affected my ability to enjoy the tournaments, and I am always on edge looking out for Dave. I have anxiety about going to the club, because he was at the club rooms all the time. What I would say and how I would behave if I saw Dave was always on my mind. My sons have told me when Dave have been at the tournament on occasions that I didn’t go because I didn’t want to see him. I don’t think Dave knows that I know what he did, and I don’t want to have to pretend that everything is okay. I don’t think I could.”

The statement goes on, but a little later Ms Aming says, that the actions of the offender caused her to have trust issues; that is understandable.

  1. Ms Aming went on to say this:

“I work at a BP truck stop during the breakfast shift from 4am to 11am. I worked out that the $5000 Dave took from my super is approximately a year of contributions. I wanted to retire at 65, but now I have to work until I’m 67. I take extra shifts to top up my super. A year and a half ago, I fell off a bike. My doctor said I need a knee replacement, but I can’t take the time off, I have to push myself to keep working so I can retire comfortably. I am limping while I work. Recently, we all had to become permanent part-time at BP, and our wages dropped $8 an hour. Now I’m earning $200 less a week and can’t contribute as much to my super. My boss said I now get sick pay and holiday leave, but I’ve never had a sick day and I’m years from retirement so that that is not going to benefit me. The younger people at work in their 30s and 40s have years to build up their super but I only have a certain amount of time.”

I am not using such statements as evidence; however, it must be borne in mind that the offender dealt with a number of people who were long-term friends, and his taking money from their superannuation had obviously caused them pain, both psychic and financial. This is the direct outcome especially when the offender was dealing with, for example, his long-term school friend, Mr Costagliola.

Mr & Mrs Attard

  1. The next victims are a couple, Mr David Attard and his wife Ms Megan Attard. Mr Attard works in “human resources”. Mr and Mrs Attard had minimal experience with financial advisers prior to becoming the offender’s clients. On or about June 2011, the offender provided Mr and Mrs Attard with initial advice which included a recommendation to roll over their superannuation into Wealthtrac. Wealthtrac records show that Mr Attard’s Wealthtrac account was opened on 30 June 2011.

  2. As at 20 April 2018, Wealthtrac recorded Mr Attard to be paying a 1.03% ongoing adviser service fee. A Wealthtrac Superannuation Master Trust application form in Mrs Attard’s name was completed on 1 July 2011. That form marks a deferred fee of 2.2% and an adviser service fee of 1.1%.

  3. On 26 November 2019, the offender sent an email to Wealthtrac enclosing two “Change of Account Fee” forms: one for Mr Attard for the sum of $10,000 and one for Ms Attard in the sum of $5,000. Each form was supported by a signature dated 26 November 2019.

  4. On 4 December 2019, a fee of $11,199.28 was withdrawn from Mr Attard’s Wealthtrac account. On 4 December 2019, an adviser fee of $5,578.29 was withdrawn from Ms Attard’s Wealthtrac account. The base of that, of course, was the $5,000 ad hoc fee.

  5. The offender placed a note on the file he kept for Mr David Attard. The file note says this:

“David happy to pay a one-off ad hoc fee for service as I have [illegible] him continually every year since inception as to where he invests and the risk profile suitable for his personality, which is a balanced investor, and he generally appreciates my advice and he has saved much money. Continually monitoring David’s portfolio is what he wants from me, especially when there are extreme charges to world markets. The fund Davo previously was in was far too conservative for his more aggressive personality, and the growth has been very good.”

Mr Attard never had that conversation with the offender or any conversation about paying a one-off ad hoc adviser fee. Mr Attard states that he did not authorise the ad hoc fee payment and that the handwriting on the form purporting to be his signature was not his signature. Similarly, Mrs Attard states that she did not authorise the ad hoc fee payment and that the offender never spoke to her about the fee and that the handwriting on the form which purports to be her signature was not her signature.

  1. The amount deducted from Mr Attard’s account represented about 4.8% of the balance of his superannuation. The fee deducted from Ms Attard’s account represented about 6% of the balance of her superannuation.

  2. Both Mr and Ms Attard provided victim impact statements. The victim impact statement from Mr Attard is quite lengthy. It bears date 12 November 2024. It commences in this fashion:

“The emotional impact that this had on me was one of devastation, worry, and anger. I was devastated by the finding out that $10,000 of my hard-earned superannuation was so easily taken by David. David lied to me. David was sneaky, and David used his permission to exploit us of hard-earned money, and he abused his position to exploit me.

I found out the 10,000 was taken through chance by being asked why there is a $10,000 debit on my account. I called David and directly asked him what it was about, to which he simply brushed it off, knowing full well that he’d stolen it from me, and knowing full well he stole it from a decent hardworking person who then had to fight and fight hard to get it back.”

The rest of the first page and part of the second page of the statement discusses the work that Mr Attard had to do to recover the money and how it made him feel “stupid, used and psychologically abused”.

  1. Towards the end of the statement, he said this:

“The stress to get the money back as noted above was significant, we want David to know it took us close to two years before we had an outcome, but you stole $10,000 from our superannuation at the time! You did not have authority, and you lied about it. For that period of when you took it, the time we got it back, I lost $10,000 from my account, therefore I lost interest and I had to work even harder to regain it.

I was lucky enough to get the money back but it was a hell of a fight to get it back, and David was nowhere to be seen, he stole my superannuation money, and I was left to try and sort the mess he has caused.”

Ms Bartlett

  1. The next victim is Ms Alexandra Bartlett. Ms Bartlett works at TAFE, teaching business and computer studies. She met the offender in around 2008. They were married for three years from February 2016 to early 2019. During that period, she worked for the offender. Whilst working for the offender, Ms Bartlett opened a superannuation account with Wealthtrac on the offender’s recommendation. Ms Bartlett’s Wealthtrac statements dated 1 July 2012 to 11 December 2016 confirmed that Ms Bartlett did not pay the offender adviser fees during that period.

  2. On 17 December 2019, the offender sent some further ad hoc adviser fee forms to Wealthtrac. One of them was charging Ms Bartlett an ad hoc fee of $10,000. On 6 January 2020, an adviser fee of $10,250 was withdrawn from Ms Bartlett’s Wealthtrac account.

  3. The form purported to carry Ms Bartlett’s signature. Ms Bartlett has stated that she did not agree to pay the offender an adviser fee of $10,000. At the time the withdrawal was done she had not had any contact with the offender. The signature on the form which purports to be hers was not her signature, and the ad hoc fee paid out of Ms Bartlett’s superannuation fund amounted to approximately 12.8% of that superannuation fund. Like a number of the other victims Ms Bartlett prepared a Victim Impact Statement. Unfortunately, it does not refer to their having being married and living together for some three years, or what the offender tells me that a lot of his personal money was invested in Ms Bartlett’s property which I understand was being renovated whilst they were living in that property together as man and wife, and one might be able to detect some bias in Ms Bartlett’s Victim Impact Statement. However, it does record the financial loss:

“I currently work three jobs and have been a single mother of four children for most of my life. The $10,000 that David Valvo stole from me means I’m now going to have to work longer and harder before I can retire. I will never the full money back nor the compounding interest over five years in my superannuation fund.”

Mr Aspris

  1. The final victim is Mr Prodromos Aspris. Mr Aspris has now retired. Before retiring he was a carpenter and joiner. The offender and Mr Aspris met in September 2014 through Mr Aspris’s accountant, Mr Akis Mina who rented office space in the offender’s office. Mr Mina told Mr Aspris that he would only have to pay the offender a fee of between $900 and $1000 in cash, and that there would be no ongoing fee to obtain the offender’s financial advice. That advice by Mr Mina cannot be held against this offender.

  2. After the initial meeting, the offender recommended that Mr Aspris transfer his superannuation to Wealthtrac; Mr Aspris did so. The Wealthtrac application in Mr Aspris name bears the date 22 September 2014, and records, “Nil,” against all adviser fee options. Mr Aspris Wealthtrac statements reflect that he did not pay any adviser fees between 1 July 2015 until 5 October 2019. On 17 December 2019, the offender sent an email to Wealthtrac including an adviser fee form for Mr Aspris, that was, again, for $10,000.

  3. On 6 January 2020, an adviser fee of $10,250 was withdrawn from Mr Aspris Wealthtrac account. The offender placed a handwritten note on Mr Aspris’ client file, that note said this:

“We met at a coffee shop in Maroubra and we discussed how my ongoing trail would cease soon... he was happy to accommodate me in providing a one-off ad hoc fee; so the fee being $10,000 and was to last me as long as [he] wanted me to service him every year with reviews to his existing super, which I have been doing together since I met him in 2009. As well as financial planning, I have helped my client towards a very good accountant which he is for ever grateful.”

That meeting and that discussion did not occur. Mr Aspris states that he never agreed to pay the offender a $10,000 fee, that he did not provide anyone with authority to sign forms on his behalf, that the handwriting on the form was not his handwriting, and that the signature on the form that was purported to be his signature, was not his signature. The ad hoc fee represented roughly 6% of Mr Aspris’ superannuation fund.

  1. Fortunately, the administrator of Wealthtrac has stepped in to reimburse those victims of the offender who were not reimbursed by the offender himself, and Oasis has also topped up any deficit in monies that the offender failed to restore in full. The offender now owes Oasis $95,007.70, which they have paid out to cover the offender’s embezzlement.

Statutory Aims and Deterrence

  1. Offending involved in this case can be shortly described as white collar crime. This was not, for example, a person who steals from the person or conducts an armed hold up or anything of that nature. It is an offence against the Corporations Act. Ch 7 of the Corporations Act has a number of principles set out in s 760A. These provide that the main object of that Part of the Corporations Act is to promote the following:

“(a) confident and informed decision making by consumers of financial products and services while facilitating efficiency, flexibility and innovation in the provision of those products and services; and

(b) fairness, honesty and professionalism by those who provide financial services; and

(c) fair, orderly and transparent markets for financial products; and

(d) the reduction of systemic risk and the provision of fair and effective services by clearing and settlement facilities.”

Clearly Ch 7 of the Corporations Act is designed inter alia to try to establish honesty on the part of those who provide financial services. The offender in this case was such a person.

  1. Courts have generally emphasised the importance of general deterrence in the sentencing exercise for offences of this kind. The rationale for affording greater weight to general deterrence in sentencing offenders for white collar crime offences was summarised by the Victorian Court of Appeal in DPP (Cth) v Gregory (2011) 34 VR 1. The Court there stated:

“[53] In seeking to ensure that proportionate sentences are imposed, the Courts have consistently emphasised that general deterrence is a particularly significant sentencing consideration in white collar crime, and that good character cannot be given undue significance as a mitigating factor, and plays a lesser part in the sentencing process... Moreover, general deterrence is likely to have a more profound effect in the case of white collar criminals. White collar criminals are likely to be rational, profit seeking individuals who can weigh the benefits of committing a crime against the cost of being caught and punished. Further, white collar criminals are also more likely to be first time offenders who fear the prospect of incarceration.”

  1. In Nicholls v R [2016] VSCA 300, the Victorian Court of Appeal said this:

“[42] When considering sentences for crimes of dishonesty by those discharging duties under the Corporations Act, it is necessary to be mindful of the relative ease with which persons occupying positions of control and responsibility can gain very substantial financial advantages if they resort to dishonest means, and the likely harm done to multiple victims from such offending conduct…”

  1. Of course, it was relatively easy for the offender to submit a form containing a forged signature and for that to be acted upon by the superannuation fund, resulting in $110,000 being transferred from the accounts of 12 individuals into the offender’s personal account. A number of the victims were not financially literate and were probably small players, so to speak, amongst those who seek to build up superannuation nest eggs. The offender was clearly in a position of trust, and he broke the trust of the 12 victims for whom he was supposed to be providing financial advice and assistance.

Objective Seriousness

  1. The Court is always called upon to try to fix the offending in a range where a most serious case of offending might result in the imposition of the maximum penalty, and in the alternative where minor offending leads to a lesser sentence. Here there were 12 personal victims. Fortunately for them and for fortunately, perhaps, for the offender, their money has been returned to them. However, they have felt themselves scarred, it would seem, by the offender’s breach of trust. It was very easy for the offender to do what he did. The ease of what he did indicates that this is higher, rather than lower, in the range of offending. The number of victims is significant, albeit that the amount of money looked at generally in what is available in superannuation might be seen to be relatively small.

  2. Clearly the maximum penalty and in particular the maximum fine which is the greater of $945,000 or three times the total value of the benefit derived, indicates that the penalty is severe. It also indicates that the Parliament has foreseen that some of the offending could have involved much greater sums of money. However, the ability to get away with small amounts encourages people who wish to engage in such conduct to attempt greater crime by seeking greater amounts out of individuals’ superannuation funds. Especially is that so when not many holders of superannuation funds regularly check their funds to see what is being done with them, as appears to have occurred with a number of the victims in this case.

  3. In my view, this case is below the mid-range of seriousness for crimes of this nature. However, it is not an insignificant or minor crime. It is a rolled-up crime, and I would put it below the mid-range of objective seriousness but nowhere near the bottom of any range. It is well above the bottom of the range.

Personal Circumstances

  1. I turn then to the personal circumstances of the offender. The offender is now 71 years old. He committed these offences when he was aged either 65 or 66 as I have already pointed out. He has been registered as a financial service adviser since 1 February 2004.

  2. The offender was born in Malta in January 1954. He came to Australia from Malta with his family in 1963. He has two younger brothers who are close to him in age. He grew up in Panania and attended the local parochial primary school and then De La Salle College at Revesby. He left school after completing the school certificate. Dr Olav Nielssen interviewed him on 28 October 2024, and the offender gave a history of having numerous jobs as a teenager. The offender then joined the Australian Army for a period of two years between 1972 and 1974. He was in an infantry battalion at Kapooka, which I understand to be a training battalion, and then he was stationed at Holsworthy Barracks in an ordinance role.

  3. He then joined the NSW Railways and worked as a clerk. He then worked as a storeman and then at a bank, and from 1976 to 1985 he worked for Telecom. He would have finished working for Telecom at the age of about 30 or 31. He then joined AMP selling life insurance and whilst doing that, completed a series of TAFE courses to become a qualified financial planner, which he did for 37 years, until he sold his portfolio of clients to another financial planning dealership. That I understand to have occurred in October 2022, and that it has been suggested to me was perhaps how much of his criminal conduct was discovered. It is to be noted that he worked without malpractice as a registered financial adviser for some 15 years before committing the offences now in question.

  4. The offender married at the age of 24 and had, as a result of that marriage, two children, a daughter now aged 38 and a son now aged 33. That relationship broke down in 2005. He met his second wife Alexandra Bartlett in 2006. They married in 2016 and divorced in 2019. The offender told Dr Nielssen that he now has a new girlfriend, but they do no cohabit, and he has to make train journeys to visit her as he has been forced by his financial circumstances to sell his car. The offender told Dr Nielssen that his girlfriend is a nurse and has been very supportive.

  5. The offender at one stage worked as a standup comedian, and according to Dr Nielssen that can be confirmed by a search of the internet. I have not done so. The offender’s brother told Dr Nielssen that the offender had a longstanding gambling habit. However, as I understand it, the offender does not ascribe that habit to be the cause of his offending.

  6. Dr Nielssen diagnosed a substance use disorder, a gambling disorder, mild cognitive impairment and a depressive illness. Any person standing for sentence who can anticipate being sentenced to imprisonment would be abnormal if he or she did not suffer from anxiety and/or depression. The substance use disorder results from the offender’s ingestion of alcohol. He also has been a regular user of cannabis. Dr Nielssen’s history in that regard is this:

“Mr Valvo said that he had been a regular drinker for most of his adult life, and he said, “As I grow older I need more to get the effect that I am after”. He said that his drinking had been even heavier since he was charged.

He said that he had smoked cannabis since his teenage years. He said that he tried the hallucinogen LSD when he was younger, but denied other drug use.

Mr Valvo denied abuse of medication, including anabolic steroids.

He said that he had continued to gamble in small amounts, limited by his small income.

He said that he had attended self-help groups for both alcohol and gambling as well as attending individual counselling.”

  1. The offender discussed with Dr Nielssen his offending. That offending is succinctly summarised by Dr Nielssen on the first page of his report. Commencing on page 2, Dr Nielssen recorded this:

“He said that he had repaid some of the money, and planned to repay the full amount once the mechanism to do so was confirmed. He said ‘I feel so bad...some of these people were my friends...as soon as it is paid back I will feel better’. He said that he did not think about repaying the money at the time, but said ‘I really cared for the clients...I made them a lot of money...the reason the clients did not find out was that I had made them money’. He said that in retrospect he was glad the offences came to light as he said ‘it was playing on my mind’.

When asked about the offences, Mr Valvo said ‘I just got greedy...it’s what they call a trail commission for advice...the going rate is 1.1% of assets under management...unfortunately I have given myself more...ASIC found out about it and jumped on me’. He said that it came to the attention of ASIC after he sold his financial management portfolio while preparing to retire, and the new advisers reviewed the transactions in each account and made the clients aware of those charges.

Mr Valvo said that the offences themselves stem from being ‘very blasé with money’, and also to cover losses from gambling. He said, ‘I was not a big gambler but I am impulsive and I have an addictive personality...and I find it really hard to switch off’. Mr Valvo said that he is also affected by regular substance use, mainly of cannabis and alcohol, in the evenings after he had finished work. He said that his substance use had increased in frequency over the years and in the lead-up to his retirement he said, ‘I would not go a day without marijuana and alcohol’.

Mr Valvo said that his financial problems were made worse by the failure of two marriages, and the loss of a large sum of money he contributed to the renovation of his second wife’s home. He said, ‘we were married in 2016 and divorced in 2019, and the offences took place after the marriage broke down’.

He said that he left his former wife’s home. He moved to a rented property, which was difficult since he had retired from work and had no income, and the Court then froze his assets. He said that he had to borrow money to pay rent and for living expenses. He said that he became very depressed, and was diagnosed with depression by his general practitioner, and prescribed antidepressants and was referred to a psychologist. He said that he stopped taking the antidepressants, despite feeling depressed”.

The history goes on for another page, approximately. In one of the further paragraphs is it recorded that the offender said that he was still “soul searching” about why he took advantage of innocent people.

  1. Dr Nielssen, then, essentially quizzed the offender about whether his gambling habit led to his offending, but eventually the offender said that there was no direct link between gambling and these offences. The offender’s gambling is based upon sports events, often boxing and rugby league:

“The offender said that he had had a good income as a successful financial planner and was averaging to earn about half a million dollars per annum. He went on to complain, however, that he had not invested his own money in the way that he advised his clients to do and he had lost money as a result of the two divorces.”

The offender’s actual financial circumstances are currently unknown to me. This is relevant to another issue, and that is as to whether any fine is to be imposed and, if so, in what sum.

  1. Looking at the matter in broad terms, it appears that the offending only occurred after the offender’s second divorce when he appears to have lost money and have been left to rent accommodation for himself rather than living in his own home or in his second wife’s home. I do know that he had investment properties, one of which has been sold and is the subject of orders made by the Federal Court which has made preservation orders in respect of his assets, and also restricted his travel. The offender has been permitted to complete the sale of an investment property at Baulkham Hills and the funds are now in his solicitor’s trust account and governed by an order of the Federal Court.

Criminal History

  1. The offender has a criminal history, but not one that is relevant to the current offending. At the age of 20, he was dealt with by what was then the Ryde Court of Petty Sessions for malicious injury in 1974. He was then 20 years old.

  2. At the age of 21, he appears to have committed an offence of driving whilst having the prescribed concentration of alcohol in his blood. For that, he received a fine and was disqualified from driving for 12 months. If the date of charging was the same as the date of the offence, the offence occurred on the offender’s birthday.

  3. At the age of 25, he committed the malicious injury and again the same offence at the age of 32.

  4. At the age of 65, on 24 July 2019, he was convicted of a common assault which was a domestic violence crime for which he was placed on a Community Corrections Order for a period of 18 months commencing on 8 August 2019 and expiring 7 February 2021.

  5. There was no history of any like crime. The offender’s fall from grace, and so it was described by his own counsel, as well as counsel for the Crown, appears to have occurred at the end of 2019 and had led the offender into his current difficulty.

Submissions

  1. Section 17A(1) of the Crimes Act 1914 (Cth) provides this:

“A court shall not pass a sentence of imprisonment on any person for a Federal offence, or for an offence against the law of an external Territory that is prescribed for the purposes of this section, unless the court, after having considered all other available sentences, is satisfied that no other sentence is appropriate in all the circumstances of the case.”

It has been submitted by the Crown that, in this case, the offending in question has passed that threshold and therefore the Court must consider a custodial sentence. The view expressed by the offender’s counsel was somewhat tentative, but he agreed with the proposition, subject to a caveat placed upon that submission by the Crown itself.

  1. After making that submission, the Crown said this in its written submissions, MFI 1:

“The Crown does not contend that it would be necessary that such sentence be served by way of full-time custody. Further, in all the circumstances of this matter, it would be appropriate to impose a fine in addition to any sentence of imprisonment.”

I will return to the question of fine later.

  1. Later in the Crown’s submissions, the Crown submitted this:

“For Federal sentences in NSW, where a Court has determined that a sentence of imprisonment is the only appropriate penalty, the alternatives to full-time custody are:

1. release on recognisance forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) (i.e. a suspended sentence); or

2. an Intensive Correction Order, picked up under s 20AB of the Crimes Act 1914 (Cth).”

However, the Crown mistakenly submitted that I could impose an Intensive Corrections Order (‘ICO’) for a period of three years, but I cannot do so because there is only one offence for which the offender stands for sentence and if there be only one offence, the maximum term of an ICO can only be two years.

  1. When I said earlier that the view of counsel for the offender about a custodial sentence was tentative, counsel was indicating that I would accede to the alternatives to full-time custody referred to by the Crown.

Consideration

  1. As I said, the offender is 71 years old. He has not served any time in prison. If he were to be imprisoned full time, he would be greatly shocked. I am confident of that, having visited many gaols over the last 30 years, they are full of mainly young people, some of whom are particularly dangerous. The discipline can be harsh; living conditions can be, and are, harsh. However, if it be necessary to serve a full-time custodial sentence, the Court must ignore the harshness of it.

  2. It is common ground that the offender pleaded guilty at the earliest available opportunity and is entitled to a 25% discount of the sentence to be passed upon him for the utilitarian value of his plea of guilty.

  3. I turn now to the checklist that is provided to me by s 16A(2) of the Crimes Act 1914 (Cth). I have sought to describe the nature and circumstances of the offence. There are no other offences that are required or needed to be taken into account. This offence is rolled-up, and therefore refers to a course of conduct, and I have referred to and described that course of conduct committed in that half of 2019.

  4. I am required to consider the personal circumstances of any victim of the offence. As I pointed out there are 12 victims; I have sought to describe them. Fortunately, the damage was done to the victim’s financial assets rather than to their person or any other movable or immovable property.

  5. Section 16A(2)(ea) of the Crimes Act 1914 (Cth) provides that if an individual who is a victim of the offence has suffered harm as a result of that offence - any victim impact statement for the victim is to be taken into account. I have done so.

  6. The paragraph (f) refers to:

“The degree to which the person has shown contrition for the offence by taking action to make reparation for any injury, loss or damage resulting from the offence or in any other manner.”

Here, I have pointed out that each of the victims has been financially compensated for his or her loss. Some losses were personally paid by the offender, but in ten cases the losses have been covered by the manager of the superannuation fund, and the offender is now indebted to that company, Oasis, for $95,007.70. Fortunately, none of the personal victims is any longer suffering a financial loss.

  1. Paragraph (fa) is currently irrelevant.

  2. I take into account that the offender has pleaded guilty. As I pointed out, the timing of the plea was at the earliest available opportunity. The benefit for the community is, of course, utilitarian. It would have been very difficult for the offender to escape conviction, bearing in mind that there were 12 persons who could give evidence against him, and bearing in mind the records that would invariably prove his guilt. The offender’s conduct has shown some degree of cooperation with the law enforcement agencies.

  3. Paragraph (j) of s 16A(2) requires me to refer to the deterrent effect that any sentence or order under consideration may have on other persons, and may have on the offender. The next paragraph refers me to the deterrent effect that any sentence or order under consideration may have on other persons - that is, both specific and general deterrence.

  4. Specific deterrence no longer applies because the offender no longer practices as a financial planner. He has, in fact, retired and in 2022 sold his portfolio. However, general deterrence, as I sought to point out, is always very important. Those who provide financial services to members of the public must be honest, as well as being learned in what they are doing, and reliable. They must realise that although they may think it is easy to ‘get away’ with money, that if they try to do so, the law will come down severely against them.

  5. Paragraph (k) refers to the need to ensure that the person is adequately punished for the offence: I am the process of seeking to do so.

  6. Paragraph (m) requires me to take into account the character, antecedents, age, means, and physical or mental condition of the offender. I have sought to do so.

  7. Paragraph (ma) of s 16A(2) requires me to consider if the person’s standing in the community was used by the person to aid in the commission of the offence. That fact is a reason for aggravating the seriousness of the criminal behaviour to which the offence relates. Clearly, the offender’s standing in the community as a financial adviser, or financial planner, was used as an aid in the commission of the offence. However, the paragraph appears to me to be directed to matters such as a clergyman or other community leader engaging in actions in which one would think that person would not engage, such as child sexual assault.

  8. Paragraph (n) requires me to take into account the prospect of rehabilitation of the person. That largely is no longer relevant: the offender has ceased working in the field. He would not be permitted to go back into that field because of this offending. So, in essence, he has been rehabilitated by the fact of his being found out, by his being found to have offended, and by the current proceedings.

  1. The final consideration is paragraph (p): the probable effect that any sentence or other order under consideration would have on any of the person’s family or dependants. The offender is no longer married, is estranged from his former partners, and from the children of his first marriage, and does not have any dependants. That paragraph is irrelevant.

  2. I accept that a prison sentence is called for, for the crime against this section, bearing in mind the number of victims, and bearing the mind that the offender tried to cover his tracks with those bogus file notes on a number of occasions. The breach of trust involved is substantial.

  3. The maximum penalty is imprisonment for 15 years. As I said, this falls below the mid-range of objective seriousness. I commence the sentencing exercise with a period of four years, that must be reduced by 25% to account for the offender’s plea of guilty at the earliest available opportunity. That produces a head sentence of three years. I accede to the submission put to me by the Crown that this is an appropriate case for me to pass a sentence under s 20(1)(b) of the Crimes Act 1914 (Cth). That provides this:

“20(1) where a person is convicted of a federal offence or federal offences, the court before which he or she is convicted may, if it thinks fit:

……..

(b) sentence the person to imprisonment in respect of the offence or each offence but direct, by order, that the person be released, upon giving security of the kind referred to in paragraph (a):

(i) if none of the offences is a Commonwealth child sex offence - either immediately or after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(ii) if at least one of the offences is a Commonwealth child sex offence and the Court is not satisfied that there are exceptional circumstances, after the person has served a specified period of imprisonment that is calculated in accordance with subsection 19AF(1); or

(iii) if at least one of the offences is a Commonwealth child sex offence and the Court is satisfied that there are exceptional circumstances - immediately.”

Of course, none of the offences here is a Commonwealth child sex offence.

  1. The Crown has asked me to impose a fine. Section 16C of the Crimes Act 1914 (Cth) provides this.

“(1) Subject to subsection (2), before imposing a fine on a person for a federal offence, a court must take into account the financial circumstances of the person, in addition to any other matters that the Court is required or permitted to take into account.

(2) Nothing in subsection (1), prevents a court from imposing a fine on a person because the financial circumstances of the offender cannot be ascertained by the Court.”

  1. In Jahandideh v R [2014] NSWCCA 178, it was held that it would be prudent for a sentencing judge to raise the issue of the offender’s ability to pay a fine in considering that sentencing option. The question of a fine and the question of the amount of the fine were raised.

  2. The offender elected not to call any evidence about his financial circumstances. Equally, the Crown did not require on subpoena, any evidence which might establish what his financial circumstances were. I do know that he no longer has premises in which he lives that are freehold premises. He is currently renting premises. I do know that he sold his motor vehicle and therefore, can only commute by rail when he visits his girlfriend. A motor vehicle is a very common possession in our society. For the offender to have sold his motor vehicle indicates to me that he is not in a good financial position. I do know that his assets have been frozen by order of the Federal Court, but I do not know what monies are being held in trust by his solicitor. I do know that he owes Oasis $95,007.70 but the funds held by the solicitor on trust may well exceed that sum. I do know that he has been drawing from the monies held by his solicitor on trust, the sum of $1,100 per week to cover his living expenses, which indicates that his living expenses are substantially greater than what he could obtain if his only income were an aged pension.

  3. Of course, the offender is in the best position to tell me what his financial position is and he has not done so. That could easily be done by way of an affidavit from his solicitor who holds his monies in trust. I agree that where the penalty in question is both a prison sentence and or a fine, and when the offence involved peculation of money from clients, a fine is appropriate. The question then becomes, what ought be a sufficient fine.

  4. During the course of the Socratic argument which usually takes place in my court, I suggested a fine of $10,000 representing the maximum amount that was taken by the offender from ten of his 12 victims. The Crown appeared to suggest that that would be “de minimis” and suggested a much higher fine.

  5. Counsel for the offender suggested that the offender was, to an extent, impecunious. That, I do not know. This has been the most contentious issue in this case. Doing the best I can, I intend to impose a fine of $20,000.

  6. I ought to have mentioned and I add now this. There is before me in Exhibit 4, a letter from Odyssey House telling me that the offender has completed an assessment at Odyssey House on 8 January 2025, and has since been attending SMART recovery sessions in January and early February of this year. I was told without objection from the Bar table that those attendances are continuing and this is very wise. The offender will save money, as well as having a source of temptation removed by reducing his dependence on drugs, alcohol and gambling.

Sentence

  1. David Mario Valvo, on the charge that between 23 July 2019 and about 15 January 2020, at Sydney in this State you did, in the course of carrying on a financial services business in this jurisdiction, engage in dishonest conduct in relation to a financial product contrary to ss 1041G and 1311(1) of the Corporations Act 2001 (Cth), you are convicted. I sentence you to imprisonment for three years. I order that you be released immediately upon giving security by way of recognizance that you will comply with the following conditions:

  1. That you will be of good behaviour for a period of five years.

  2. That you will make reparation to Oasis Fund Management Limited in the sum of $95,007.70, plus any interest thereon since that sum was last specified.

  3. That you will pay to the Commonwealth of Australia a pecuniary penalty of $20,000 at such time and in such manner as is stipulated by the Registrar of the Court.

**********

Amendments

10 November 2025 - Correct sentence figures in [107] and [115].

Decision last updated: 10 November 2025

Cases Citing This Decision

0

Cases Cited

3

Statutory Material Cited

2

DPP (Cth) v Gregory [2011] VSCA 145
Mahdi Jahandideh v The Queen [2014] NSWCCA 178
Nicholls v The Queen [2016] VSCA 300