DPP v Roache [2023] VCC 1034

1. I now turn to the first set of charges, being Charges 1 to 5. The offending the subject of Charges 1 to 5 occurred between 9 April 2018 and 12 November 2018.
2. Antoine Moussi made a will in January 2008. In his will, he nominated you as a joint executor and trustee of his estate. You were not named as a beneficiary of the Moussi estate.
3. Mr Moussi passed away in April 2009. Following a grant of probate, Coulter Roache Lawyers were retained to administer the Moussi estate. Between August 2010 and February 2021, the firm received a large sum of money on trust. The firm duly established and kept a trust ledger account in relation to the Moussi estate.
4. By your plea, you have admitted to misappropriating a total of $300,000 held on trust by Coulter Roache Lawyers for the beneficiaries of the Moussi estate. The circumstances in which you did so are as follows.
   • On 9 April 2018, you caused $49,000 belonging to the Moussi estate to be transferred from the firm's trust account to an account held by Trans Otway. The transfer was not authorised by the joint executors. That misappropriation constitutes Charge 1.
   • On 4 May 2018, you caused $51,000 belonging to the Moussi estate to be transferred from the firm's trust account to an account held by Trans Otway. The transaction was not authorised by the joint executors. That misappropriation constitutes Charge 2.
   • On 24 May 2018, you misappropriated trust funds over two separate transactions. Neither transaction was authorised by the joint executors. First, you caused $40,000 belonging to the Moussi estate to be transferred from the firm's trust account to an account held by Trans Otway. That misappropriation constitutes Charge 3. Secondly, you caused $139,000 belonging to the Moussi estate to be transferred from the firm's trust account to another account held by Trans Otway. That misappropriation constitutes Charge 4.
   • On 12 November 2018, you caused $21,000 belonging to the Moussi estate to be transferred from the firm's trust account to an account held by Trans Otway. The transaction was not authorised by the joint executors. That misappropriation constitutes Charge 5.
5. The deception practised by you was similar for each of Charges 1 to 5. You generated false letters, addressed to various people, where you advised each recipient that a certain sum would be transferred to their nominated bank account as all or part of their entitlement as a beneficiary of the Moussi estate. You then created an internal "EFT Requisition Slip" that described each transfer as a "trust distribution". Importantly, you concealed Trans Otway's identity as the recipient of the funds by stating on the EFT Requisition Slips that the funds were being transferred to the recipients of your false letters. You adopted a similar methodology when you made the transfers using the firm's facility at the Bendigo Bank. That is, you stated that the purpose of each transfer was "trust distribution", and you falsely recorded the identity of the transferee as a recipient of your confected letters, rather than identifying the transferee as Trans Otway.

1. Charges 6 and 7 occurred between 21 and 24 October 2019.
2. Eileen Margaret Robins made a will in October 2005. You were neither an executor nor beneficiary of Ms Robins' estate.
3. Ms Robins passed away in June 2015. Coulter Roache Lawyers were retained to administer the Robins estate. Between June 2015 and January 2022, the firm received a large sum of money on trust. The firm established and kept a trust ledger account in relation to the Robins estate.
4. By your plea, you have admitted to misappropriating a total of $120,000 held on trust by Coulter Roache Lawyers for the beneficiaries of the Robins estate. The circumstances in which you did so are as follows.
   • On 21 October 2019, you caused $80,000 belonging to the Robins estate to be transferred from the firm's trust account to an account held in the name of a client, Ms H.[3] The transaction was not authorised by the executors of the Robins estate. That misappropriation constitutes Charge 6. You obtained the funds by: (a) generating a false letter where you advised the recipient - who was not Ms H - that $80,000 would be transferred to them as an "additional distribution" from the "Family Trust"; (b) creating an internal EFT Requisition Slip where you described the purpose of the transfer as a "Further distribution" and identified the transferee as the recipient of the letter, rather than Ms H; and (c) falsely recording the transferee as the recipient of the letter, rather than Ms H, when you made the transfer.
   • On 24 October 2019, you caused $40,000 belonging to the Robins estate to be transferred from the firm's trust account to an account held by Trans Otway. The transaction was not authorised by the executors of the Robins estate. That misappropriation constitutes Charge 7. You obtained the funds by: (a) generating a false letter where you advised the recipient that $40,000 would be transferred to them as an "additional distribution" from the "Family Trust"; and (b) stating that the transfer was from the Robins estate.

1. You participated in a detailed record of interview in June 2022. During that interview, you admitted to the defalcations the subject of each charge on the indictment. You also admitted to generating false letters and EFT Requisition Slips, and to falsifying transaction details when making payments. At times your explanation for why you engaged in the conduct was vague and confused. Your record of interview included the following.
   • You said that you transferred money to the Trans Otway account to avoid internal scrutiny.
   • You said that you created a false trail to conceal the fact that money was being transferred to a company in which you had an interest. You were acutely aware of the risk that the firm's auditors could establish a link between you and Trans Otway.
   • The funds misappropriated from the Moussi estate were "applied for different reasons", including to repay money you borrowed from friends.
   • You characterised your conduct with respect to the Moussi estate as "stupid and wrong".
   • You convinced yourself that you would repay the money, but you knew that you were "never in a position to do [so]".
   • You admitted that you "needed" the money and would "benefit personally" from the funds received. You denied that Trans Otway was in financial difficulty and said that you did not misappropriate the money to acquire personal assets or gamble.
   • You said that the only "alternative" to misappropriating the funds for your own purposes was to sell your house.

1. The maximum penalty for the offence obtaining property by deception, contrary to s 81(1) of the Crimes Act 1958 (Vic), is 10 years' imprisonment.
2. You fall to be sentenced as a continuing criminal enterprise offender in relation to Charges 2, 4 and 6 as the value of the property obtained under each of these offences exceeds $50,000 - it being $51,000, $139,000 and $80,000 respectively. Your status as a continuing criminal enterprise offender means that the maximum term for those offences is 20 years' imprisonment. And I shall record on my orders your status with respect to those offences.

1. I turn to the gravity of the offending and my assessment of your moral culpability.
2. While you have never given a clear or cogent explanation for all of your offending, it seems you required the funds for several different reasons:
   • A significant amount of the money obtained was applied directly or indirectly towards debts relating to your failed or failing Trans Otway transport business.
   • Some funds were taken for personal use, such as repaying loans you owed to other people.
   • Some funds were given to Ms H, an elderly woman who had been a client of yours for a number of years. Initially, your counsel submitted on the plea that you believed that Ms H was involved in some scheme which would generate a return on your funds; your counsel contended that the whole thing turned out be a scam, though you were not involved in that scam. Later in the plea, it was suggested that the money was being used ultimately, however, for Trans Otway. In any event, you gave those monies to Ms H in the expectation you would benefit in some way. I certainly do not punish you for being involved in a scam.
3. Overall, as your counsel said, you found yourself in a chaotic or desperate spiral of "robbing Peter to pay Paul". I accept that your offending was not motivated to fund a lavish, extravagant, or grandiose lifestyle. That all said, there can be no escaping the fact that you engaged in this appalling conduct in a desperate endeavour to maintain the lifestyle that you did enjoy at the time. Most people, in fact overwhelmingly most people, in the community do not resort to dishonest behaviour to fix up their financial troubles. Still less should a legal practitioner resort to this with client funds.
4. In my view, your offending was objectively very serious, and your moral culpability is high:
   • You engaged in multiple transactions.
   • Overall, the offending was protracted, occurring over a period of 18 months.
   • Despite the opportunity to reflect on your conduct, you persisted.
   • Your conduct was sophisticated and systematic. In each transaction, you transferred funds pretending they were distributions of the deceased estates to beneficiaries. You actively sought to disguise the offending conduct by creating a false paper trail.
   • While the courts often see higher sums involved in solicitor frauds, the sums here in total were not small.
   • Importantly, you committed the offences while occupying a position of trust and responsibility as a legal practitioner responsible for administering the two deceased estates; additionally in relation to the Moussi estate, you were one of the executors and trustees. The abuse of this special relationship enabled you to commit this dishonest conduct.
   • You knew the offending conduct was wrong. You had been practising as a lawyer for approximately 50 years.
   • You were an experienced principal of a law firm and held a position of real responsibility within the firm and with respect to the wider Geelong legal community.
   • You deliberately obtained the trust funds knowing that you would never be in a realistic position to repay the amounts.
5. Both your counsel and the prosecution drew my attention to a 2022 Victorian Civil and Administrative Tribunal (VCAT) decision that found you had engaged in professional misconduct.[4] That finding centred on two matters:
   • First, you improperly borrowed $150,000 from a client in December 2017. You did so with that client's knowledge and consent.
   • Secondly, you attempted to cover up your transgression by giving the false or misleading impression that you did not borrow money from the client.
6. At the time you engaged in the conduct the subject of Charges 3 and 4 before me, the Legal Services Commissioner had notified you of a complaint about this improper 2017 loan. At the time you engaged in the conduct of the subject of Charges 6 and 7, the Legal Services Commissioner had informed you that the complaint about the improper 2017 loan was being investigated as a disciplinary matter.
7. The prosecution relied upon the disciplinary matter as a feature of aggravation because your instant offending occurred against the backdrop of intervention by a regulatory body, and at a time when an aspect of your practice was under scrutiny. In support of that contention, the prosecution relied upon the decision of Director of Public Prosecutions v Bouhalis.[5]
8. The conduct the subject of the complaint to the Legal Services Commissioner concerned the improper borrowing of money from a client, not misconduct relating to trust monies or the taking of trust monies. While concerning conduct, I am not satisfied that it is sufficiently similar to the present offending to allow for a conclusion that it imbued your conduct with a more brazen quality. I think your case is distinguishable from a case like Bouhalis. I am also conscious that I am required to apply the applicable criminal standard in order to act upon a matter as a circumstance of aggravation. With that in mind, I give you the benefit of the doubt here with respect to the 2017 matter.[6]
9. In any event, not much turns on this. For the reasons I have already outlined, your moral culpability is high.

1. I turn to the question of repayment and compensation.
2. To date you have repaid $38,066.49 to the Moussi estate.7 Both estates made applications to the Fidelity Fund. In both cases the Fidelity Fund did not make a payment to the estates.
3. However, I will be making the following Compensation Orders pursuant to s 86 of the Sentencing Act 1991 with your consent:
   • the sum of $261,933.51 to be paid to the Estate of Antoine Moussi.
   • the sum of $120,000 to be paid to the Estate of Eileen Margaret Robins.
4. These orders will be satisfied from the proceeds of the sale of two properties at Anglesea and Newton which had been owned by you. Those properties were the subject of restraining or freezing orders. The properties were sold with the proceeds held on trust by the Asset Confiscation Office. These amounts will fully satisfy the compensation orders and the amounts taken by you.
5. You consented to these orders and had always said you would.[7]
6. I take this into account.

1. Stephen Robins, the son of Eileen Robins, made a victim impact statement which was read at the plea. He talked about how shocked he was that you - as their trusted family lawyer - would take the money and how he had lost complete trust in the legal profession. He spoke about the financial hardship and anxiety that this had caused to himself and his family.
2. Mr Robins' victim impact statement eloquently sums up the consequences of your dishonest offending.
3. I note that when he made that statement none of the money had been paid back.

1. I turn to your personal circumstances.
2. You were born in Warrnambool in July 1940.
3. You married your wife, Mary, in 1967. You have described her as your closet companion and friend. You raised three children together and have six grandchildren. Your family situation has changed in recent months, with Mary suffering a heart attack earlier this year. She was hospitalised and is now under the care of a neurologist and on a series of medications.
4. Your upbringing was unremarkable. You left school in Year 11 because the school you attended did not offer the equivalent of Year 12. Your parents were unable to afford to send you to a school that did, so you commenced work as a junior clerk at the State Electricity Commission (SEC). While at the SEC, you attended night school to complete your matriculation. The SEC awarded you a scholarship to study Commerce at the University of Melbourne. You graduated and went on to work in the Accounting and Finance Department. It was at that time that you undertook, and completed, a law degree. After completing your articles in 1969, you resigned from the SEC and commenced work as a solicitor.
5. As I said at the outset of these reasons, you practised as a solicitor for over five decades. Following your admission to practice, you worked hard as an employee solicitor and quickly obtained partnership. At the time of your offending, you were a named partner at Coulter Roache Lawyers. It was a large firm that employed approximately 80 people.
6. Unsurprisingly, but still to your credit, you have no prior convictions.
7. The Court received several character references on your behalf.[8] I have read each of them. Your counsel described the references as a "powerful collection". I agree. Certain themes emerge from your references.
   • First, they paint a picture of a person who, prior to this offending, acted with professionalism and integrity, and who was committed to community service and helping those in need.
   • Secondly, they support the contention that your offending was an aberration. One reference remarked that your offending is "in total contrast to the principles which have characterised both [your] personal and professional life".[9]
   • Thirdly, they speak of your dedication to your clients and the practise of law. One reference described you as a "formidable representative"[10] of your clients. It is clear that you were an astute and capable solicitor who was well regarded and respected by your clients and peers alike. I interpolate to observe that there is a clear tension between your offending and your commitment to your clients. Misappropriating clients' trust funds is so incongruous with your obligations as a solicitor that it is difficult to comprehend why a person dedicated to client service would do so.
   • Finally, a number of your references describe you as genuinely remorseful. They describe you as experiencing a deep sense of shame and serve to illustrate the devastating effect that your actions have had on you and those around you.
8. You come before the Court today having destroyed your reputation and legacy, which you worked so hard to achieve - as your counsel frankly acknowledged on your plea, "it is a dreadful end to such a life and such a career".[11] One of your referees candidly observes that you have entirely lost your status in the local community, particularly in the legal community, which you will never regain. Such are the consequences for solicitors who breach their clients' trust in such a fundamental way.
9. Notwithstanding your dishonourable conduct, the Court cannot ignore your enormous contribution to the Geelong community and wider region. Your community service was not tokenistic; it was long-lasting and geared towards improving the lives of other around you. You were involved with organisations such as the Committee for Geelong, Bendigo Bank, Barwon Health, Anam Cara House Hospice, and Lifeboat Geelong. Additionally, you facilitated access to justice by providing pro bono legal advice and representation to those who could not afford it. I take all of those matters into account to your credit.
10. Taking these matters into account, I accept that, prior to your offending, you were a person of good character who worked hard to support those around you.
11. The prosecution submitted that your good character and respectability placed you in a position of professional trust where you were able to commit this offending. It was suggested that good character can therefore be reduced. There can be no doubt that the offending involved a significant breach of professional trust which aggravates this offending. I will deal with that breach of trust separately, but I want to make it clear that I will not reduce the weight to be attached your prior good character on this basis. That would or might amount to double punishment.[12] I want to avoid that risk.
12. I return to the 2022 VCAT civil misconduct finding against you, relating to professional misconduct which occurred in 2017.[13] Whilst this does not aggravate your instant offending, your counsel accepts that it cannot be said that, apart from the offending before me, you otherwise have had a completely unblemished career. However, I take on board your counsel's point that this disciplinary issue also occurred very late in your personal and professional life when your financial affairs were unravelling, and that it does not diminish your lifelong community service.

1. I now turn to the medical matters that were put before me on the plea.
   1. A number of medical reports have been filed on your plea by your counsel.[14] I have read each of them. At the plea, particular emphasis was placed on the reports authored by Mr Martin Jackson, Dr Alistair Mander and Mr Patrick Newton. I too will focus upon them.

1. Mr Martin Jackson, neuropsychologist, provided a report dated 13 December 2022. Mr Jackson concluded with the following opinions:[15]

It is clear from the current neuropsychological assessment that Mr Roache has significantly impaired cognitive function which is consistent with a neurodegenerative process (dementia). Given his profile of problems with semantic language, executive functions, visuospatial functions, and complex new learning and memory, this may represent one of the frontotemporal dementias (a semantic dementia) or it might be a form of Alzheimer's disease. It is not possible on the basis of this assessment alone to make a definitive diagnosis. Mr Roache requires an urgent referral to a geriatrician for full investigation of a potential neurodegenerative disorder including brain scans, blood tests, et cetera.

1. Whichever definitive diagnosis it is, as to when you commenced to experience symptoms of cognitive decline, Mr Jackson noted that it is impossible to say, although he observed that:
   • Your son had reported a history of some two to three years of changes in your thinking skills as well as to some degree changes in your behaviour.[16]
   • There was no evidence that you were suffering a mental health or psychological condition prior to the behaviours which first led you to being charged.[17]
   • At the time of the offending, no one had noticed any change in your cognition or behaviour.[18]
   • It is, however, highly likely that you had been experiencing a deterioration for "some years".[19]
2. As to whether frontotemporal dementia would make imprisonment more onerous for you and/or whether it would be exacerbated by your incarceration, Mr Jackson said the following:[20]

The main issue with Mr Roache is that if he does in fact have a neurodegenerative disorder, then he is likely to deteriorate in the future. As such, his issues with language, complex new memory (getting overwhelmed initially), is likely to make prison more onerous initially. However, given that with repetition he improves and that his executive skills for the most part are in the average range or better, then he would be able to learn the logical structure. His letter fluency and structured recall are still high average to superior and therefore, he would cope with a highly structured environment of prison, at least initially. If he was there for an extended period of time, then I would have concern about the effect of deteriorating cognitive function on his capacity to manage in prison.

1. I now turn to Dr Mander, Geriatrician.
2. Following on from the recommendation of Mr Jackson, you were referred to a geriatrician, Dr Alistair Mander. Dr Mander has provided three reports dated 30 December 2022, 28 January 2023 and 24 April 2023.
3. In his first report, Dr Mander notes that your wife did not notice any obvious changes to your behaviour or cognition until you were charged with these matters. She noticed your recollection of conversations and birthdays had declined, as had your ability to handle finances and problem solving.[21]
4. By his second report, Dr Mander confirmed that that you had a semantic variant of a frontotemporal dementia.[22]
5. As to when you commenced to experience the early stages of frontotemporal dementia, Dr Mander concluded:[23]

These illnesses have an insidious onset, and thus a precise date for the onset of his symptoms is difficult. The neuropsychological report of Mr M Jackson gives a 2 to 3 year history noted by his son. His wife only noted changes at the time of his being charged with criminal offences.

1. As to the future prognosis, Dr Mander observed:[24]

This condition is a progressive neurodegenerative disorder, with no known disease modifying agent.

This is a neurodegenerative disease generally lasting some 8 to 10 years following onset of symptoms. This will lead to progressive dependency upon others for decision-making and general care needs.

1. By the time Dr Mander saw you for the last time in April 2023, he observed that your communications with strangers and friends required supervision as you were unaware of the effect of your comments on others. Dr Mander goes on to say:[25]

He now requires assistance with choosing his clothes so that they are appropriate for the weather conditions. His medications are now supervised by his wife. He is unable to be empathic and can on other occasions be inappropriately jovial and has generally become apathetic.

1. As to the impact of your frontotemporal dementia on your imprisonment experience, Dr Mander observed in his April report:[26]

This illness impairs his ability to interact in an empathetic way with others. Kevin is thus more likely to offend sensibilities and thus be the subject of unfortunate consequences and misunderstandings. His cognitive abilities are highly reduced.

1. Patrick Newton, Forensic Psychologist has provided a report dated 9 May 2023. Mr Newton saw you a number of times between November 2022 and April 2023.
2. I will first deal with what Mr Newton says about your frontotemporal dementia.
3. Mr Newton deferred to the expertise of Dr Mander and Mr Jackson in relation to the diagnosis of your frontotemporal dementia.
4. As to the current level of frontotemporal dementia and your rate of deterioration, Mr Newton said the following:[27]

My observations of Mr Roache over the course of our three interviews suggest that he has experienced a significant deterioration in his condition even during that time. While I would defer to the specialist expertise of Dr Mander and Mr Jackson, it seems clear Mr Roache's condition is progressing rapidly, with a significant decrease in adaptive functioning being observed even since diagnosis. This suggests that his condition may be at a more advanced stage.

1. As to the hardship of incarceration, Mr Newton concluded that your frontotemporal dementia:[28]

... would be likely to make it difficult for him to adjust to the rigours of the custodial environment and to pose a range of challenges across the course of any extended period in custody. He would be expected to find it considerably more difficult to adjust to the changed environment than would a person in normal health since his cognitive flexibility and capacity to acquire new skills and information are significantly impaired. Beyond this, the difficulties which his disorder entails for communication, the personality changes associated with it, the increasing confusion he will experience as it progresses and the accompanying challenges to his emotional regulation and expression are all likely to increase the likelihood of adverse interactions with other prisoners.

1. Mr Newton did, however, recognise in his report, and in his evidence before me, that the structure of prison life might provide some assistance to you, while maintaining his overall view that your experience of incarceration would be significantly more onerous than that of other prisoners who do not suffer from your problems.[29]
2. In relation to your general future, Mr Newton said:[30]

While some adaption would be expected, the general trend would be for the burdens to increase in their impact, as Mr Roache's neurocognitive disorder progresses and he becomes more confused and behaviourally impaired.

1. Mr Newton also gave evidence before me about the different levels of care which are needed for someone suffering from frontotemporal dementia. There is sub-acute care which means management to assist the person to improve their functioning in the moderate term. Sub-acute care would typically be a pathway towards high-level care such as a nursing home.
2. Mr Newton agreed in evidence that, as matters stand, you are not at the level where you would immediately require sub-acute care, still less high-level care. Mr Newton emphasised, however, that regular temporary periods of sub-acute admission are likely to become more frequent as your condition deteriorates.
3. Mr Newton also diagnosed you with anxiety and depression which arose within the context of your VCAT legal troubles and have persisted throughout this prosecution. Your symptoms are sufficiently severe to meet DSM-5 criteria for an adjustment disorder with mixed anxiety and depressed mood.[31] These symptoms have intensified by reason of your frontotemporal dementia notwithstanding your attendance with your psychologist and psychiatrist. Your symptoms were sufficiently intense to require an in-patient admission in 2022. Your symptoms persist despite the prescription of an anti-depressant.
4. In addition to making your incarceration more burdensome, your anxiety and depressed mood are likely to deteriorate within the custodial setting. Mr Newton said that the risk of deterioration in your mental state is:[32]

... greater than usual on account of his co-morbid dementia, the disruption to his social supports and his equivocal response to treatment so far. Such deterioration would be particularly likely in a custodial context.

1. As to the interaction of all your conditions on your imprisonment experience, Mr Newton said:[33]

Thus, in combination these cognitive and emotional effects would be expected to have a significantly adverse effect upon Mr Roache's psychological functioning over and above the normal rigours of incarceration experienced by a prisoner in normal health.

1. Mr Newton gave oral evidence to the effect that there is a real risk that your adjustment disorder with mixed anxiety and depressed mood would progress to a more severe type of emotional disturbance, whether that is anxiety or depression. Mr Newton considered your prognosis to be poor given that you had responded poorly to treatment. This risk is magnified by your frontotemporal dementia.
2. Mr Newton made reference to the limitations in accessing treatment within the prison environment. This issue occupied some time at the plea.
3. As to the care available in prison, the prosecution relied upon a letter tendered on the plea by Ms Kyra Low, Acting Director of Clinical Governance at Corrections Victoria.
4. With respect to general mental health care, amongst other things, Ms Low noted the availability of a range of mental health and dementia services. These services ranged from services provided by registered mental health nurses and general practitioners through to in-patient care provided by Forensicare. Ms Low made reference to the Mobile Forensic Health Service which provides counselling to prisoners with complex psychological needs.
5. Insofar as the availability of health services for prisoners with dementia is concerned, Ms Low noted the following:[34]

While a specialised dementia unit is not available in prison, the health staff will continue to monitor the patient's progress and monitor any signs of deterioration. Where appropriate, referrals can be made for geriatric assessments and to Dementia Australia for ongoing support and advice.

Where patients with dementia become unable to self-care while in the general prison accommodation, patients with dementia may need admission to a sub-acute unit as their condition deteriorates for either short or long-term support, where they will have access to the health staff 24 hours per day.

1. Ms Low also noted the following:[35]

Health service delivery within the Victorian corrections system is based on the principle of community equivalence, whereby prisoners are provided with health care of a quality and standard equivalent to that provided in the community through the public health system.

1. Mr Newton was cross-examined about Ms Low's letter and the health services available in prison as outlined by Ms Low. I will not repeat here all of Mr Newton's evidence. Mr Newton accepted the substance of Ms Low's letter and that medical, geriatric and dementia services were available within the custodial environment as outlined by Ms Low. Mr Newton did not question the value or professionalism of the services. Mr Newton also emphasised that they were conducted by very good clinicians who do their very best to deal with the challenges they are facing.
2. Mr Newton emphasised, however, that the implementation of those plans or services were subject to resource constraints and to the everyday challenges of a custodial environment. His concern was that any treatment would not be specific to your age and to the stage of your frontotemporal dementia development, with your cognitive limitations. In short, for someone with your complex mental health needs - and by that I am referring to all of your mental health needs - Mr Newton said that the services available are typically limited in scope, and/or delayed in their access, by comparison with what might be available to you in the community. Mr Newton acknowledged that, even within the community, the capacity to access the best treatment has its limitations - that is even more so in the prison environment.
3. Mr Newton gave a number of examples, including the following:
   • While qualified to undertake counselling, the Mobile Forensic Mental Health service does not typically provide treatment for those who suffer from neurocognitive symptoms. They are focused upon dealing with the people with complex behavioural needs. They are not trained in dealing with persons with geriatric needs.
   • There is no psychogeriatric ward or a geriatric evaluation and management unit where specialist assessments and care could be undertaken. A sub-acute unit is an important service but is not a dementia unit.
   • There is no acute or high-level care dementia facility available, such as a nursing home-like facility.

1. I now just turn briefly to some of the other medical material placed before me.
2. The above expert reports in many respects supersede and clarify the reports of Tony McHugh, consultant psychologist, and the reports of Dr Edmond van Ammers, psychiatrist. I therefore do not propose to summarise their reports in any detail.
3. Mr McHugh initially saw you in relation to your depression attributable to your VCAT proceedings. In his most recent report of 20 May 2023, he noted that your depression condition has not been easy to treat and that you continue to be significantly depressed. He also noted that incarceration has the strong potential to worsen your depression. In large part this is confirmed by Mr Newton.
4. Dr Edmond van Ammers, psychiatrist, in his initial report dated 4 August 2022, reported that he did not get the impression of dementing process after a long discussion of complex matters. His clinical view was that the neurological deficit was not the explanation for your difficulties. He expressed a view that you were not suffering from a dementing process in 2022. While I have accepted the evidence of the other experts in relation to your suffering of dementia, the van Ammers report highlights the difficulties in pinpointing your commencement of dementing symptoms.

1. I will now address the Verdins[36] principles in the light of the mental health evidence. According to Verdins principles 5 and 6 respectively, mental impairment may be relevant to sentencing in the following ways:[37]
   • The existence of an impairment may mean that a sentence of imprisonment may weigh more heavily on an offender than a person in normal health; and
   • It will be a mitigating factor if there is a serious risk that imprisonment will have a significant adverse impact on an offender's mental health.
2. As I said to the prosecutor at the plea hearing, in your case it is not easy to apply these principles separately or in a mutually exclusive way. Nor is it possible to entirely disentangle your frontotemporal dementia from your adjustment disorder with mixed anxiety and depressed mood. Both interact with each other. At a practical level, in your case I must ultimately take a holistic approach in relation to the question of the consequences of imprisonment concerning your mental health conditions. Whether the consequences of imprisonment in the light of your mental health conditions are better categorised under Verdins principle 5 or 6 does not matter much as I will be taking them into account one way or the other.
3. As I said earlier when summarising the evidence, there was an issue at the plea hearing as to the level of medical care available within the prison environment for someone with your complex mental health needs. More specifically, questions were raised as to the adequacy of the services available in prison and as to whether the medical services in prison for someone with your complex mental health needs fell short of the level of care which would be available to you in the community.
4. Given the ultimate conclusions which I have reached in relation to the applicability of Verdins principles 5 and 6, I have decided that I do not need to reach any specific conclusions about these level of care issues.
5. While a consideration of these issues does involve some consideration of the available treatment in prison, and its effectiveness, in this case the answers to these Verdins principles 5 and 6 questions do not turn upon a nuanced comparison between the treatment which you will receive in the custodial setting and the available treatment in the community.
6. Most importantly, and returning to the questions which I must address, I have reached the following conclusions:
   • I accept the evidence of the experts, summarised by Mr Newton, that imprisonment will weigh noticeably more heavily on you than it would on a person without frontotemporal dementia.
   • These challenges are likely to increase the longer you are incarcerated, as your dementia progresses.
   • The difficulties which you will face by reason of your dementing process relate to your confusion, communication, and behaviour with all its consequences in a prison setting.
   • Your frontotemporal dementia will progressively deteriorate in the same way regardless of whether you are in custody or not. However, the management and care of your dementing condition within a custodial setting will become increasingly more challenging for you as your dementia progresses. The disruption to your social network and support environment, each of which plays a role in preserving your quality of life, is likely to amplify the effects of your condition in a custodial setting.
   • In the short term, there is likely to be greater scope to manage you in the sub-acute unit, should you experience temporary periods of exacerbation or distress relating to your dementing process. There is capacity for geriatric assessments and advice to be obtained. The full range of dementia and geriatric care services are, however, not available in prison, as pointed out by Mr Newton. Any shortcomings in specific dementia and geriatric care are likely to be of more significance to you should you be imprisoned for an extended period of time. Your dementing conditions will worsen over time and, as they do, your care needs will increase. The absence of specific dementia care options offered within the custodial environment would increasingly impact you.
   • I also accept the evidence that your mixed anxiety and depressed mood will further exacerbate the challenges which you will face within a custodial setting, in combination with your frontotemporal dementia.
   • I also accept the evidence that your adjustment disorder with mixed anxiety and depression is likely to be aggravated by the experience of imprisonment. The risk of aggravation to your adjustment disorder within the prison environment is amplified by your failure thus far to respond to treatment and because of your frontotemporal dementia. I accept the evidence of Mr Newton that medical care available in prison, is unlikely, in your case to be contain your symptoms.
   • I accept the overall tenor of the expert evidence, including Mr Newton's, that there is a real risk that imprisonment will adversely impact your mental health.
7. Verdins principles 5 and 6 are thus squarely engaged. The prosecution conceded as much. I have accepted this.
8. I consider the consequences of imprisonment in relation to your mental health conditions globally to be a powerful matter in mitigation in your case. The hardship which you will experience in prison by reason of your dementia, in particular, is a weighty factor in mitigation.
9. I have reached these conclusions without the need to reach any firm findings about where the level of custodial care and treatment sits by comparison with what might be available within the community. Nor am I required to make abstract findings with respect to the appropriateness of the level of care provided.

1. As for Verdins principles 3 and 4, mental health conditions may require that:
   • General deterrence be moderated or eliminated as a consideration depending on the nature and severity of the offender's symptoms, and the effect of their impairment at the time of offending, sentence, or both.
   • Specific deterrence be similarly moderated or eliminated in the same circumstances.
2. In your case, your counsel sought to enliven these principles upon the basis of your impairment at the time of sentence.
3. I will take each of these in turn.
4. It was submitted that I should moderate the degree to which you should be seen as an appropriate vehicle or medium for general deterrence having regard to your age and frontotemporal dementia in particular. General deterrence is directed to deterring others, so one must look to the impact a sentence will have on others.[38] Your dementing process (and age), evokes a degree of human sympathy, which says: "Well, you would not expect him to get the same sentence as someone else".[39]
5. I accept that the weight to be given to general deterrence must be materially reduced in your case. There will also be some consequential moderation to just punishment and denunciation.
6. However, even with this tempering, the nature and gravity of the offending still means that general deterrence (along with just punishment and denunciation) will continue to play a role of some importance in my sentence. I will return to this.
7. I would similarly moderate the weight to be given specific deterrence. I will similarly return to this.

1. Your counsel explicitly eschewed or abandoned any reliance on Verdins principle 1, it being accepted that the evidence does not establish a realistic connection between your onset of dementia and your offending. That concession was principally made because the evidence is unclear (and somewhat contradictory or inconsistent) about when the dementia commenced and therefore whether you were suffering from it at all when you offended. In my view, the concession made by your counsel accords with the uncertain state of the evidence.
2. In his second report, Dr Mander made reference to criminal behaviour associated with this type of dementia and referenced some related articles on this issue. Those articles were provided to the Court. Given the overall state of the evidence, your counsel said he has stepped back from reliance upon them, and no weight is now placed upon them. I can and will put them to one side.
3. The submissions advanced in relation to Verdins and your mental health issues were, as your counsel frankly acknowledged, focussed upon your mental state at the time of sentence, rather than at time of offending.

1. I now turn to your age and health. These comments are made in addition to the observations I have already made.
2. You also have a number of physical medical conditions, including the following:
   • Prostate cancer, which your GP said is unlikely to be affected by imprisonment. Your specialist - Dr Gregory Neerhut - described it as minor and that you will probably not require treatment for this.
   • High blood pressure. Your GP noted stress might cause high blood pressure. And, of course, imprisonment will bring stress and I acknowledge that.
   • Aortic Sclerosis, which is monitored biannually by ultrasound and may be treated surgically if required. Your GP said it is unlikely to be affected by imprisonment.
3. The evidence suggests that these physical conditions can be monitored and managed within the custodial environment.
4. They are unremarkable for man of your age. I will take them into account in a general way when giving weight to your age and health generally.
5. As I have observed, you are nearly 82 years of age, about to turn 83.
6. Your age is relevant in a number of ways.[40]
7. On the question of life expectancy with this form of dementia, I return to what Dr Mander said on the issue:

This is a neurodegenerative disease generally lasting some 8 to 10 years following onset of symptoms.

1. While it is impossible to say when your dementia commenced, I will allow for the possibility that it had commenced some years ago.
2. I will proceed upon the basis that you are some years into this progressive, degenerative illness which generally has a survival rate of eight to 10 years following onset of symptoms.
3. I am conscious that any term of imprisonment which I impose upon you carries with it a possibility that you may not live to be released from prison. On any view, each year you spend in custody will represent a not insubstantial portion of the balance of your remaining life. Your age must also be factored in when considering the quality of your time in custody. It will be more challenging for someone of your age.
4. Dr Mander and Mr Newton have both spoken of your demonstrable decline during the period in which they have seen you. You will continue to progressively decline. You are certain to conclude any term of imprisonment I impose as a cognitively diminished person. This means that any period you spend in custody will represent a meaningful portion of the balance of what quality life lies ahead of you. I take this into account.
5. Facing gaol at your age, in these circumstances, is, as your counsel said, a "dreadfully bleak" prospect.
6. Your age and health issues also inform my assessment of your risk of reoffending.
7. Your age - in combination with your mental health conditions - is a compelling factor in my sentencing exercise.

1. I turn to your plea of guilty and to the question of facilitating the course of justice and remorse.
2. You indicated to the prosecution that you would plead guilty at the earliest opportunity. The matter was resolved at the committal stage. You are entitled to the utilitarian benefit for your early plea of guilty. Further, I also accept that your plea of guilty is significant in the context of a backlog of cases which has arisen as a result of the COVID-19 pandemic, as recognised under the case of Worboyes v The Queen.[41] The pandemic-related backlog persists even though we are no longer in the midst of the health emergency.
3. I turn the question of remorse.
4. It was common ground at the plea that you have been unable to provide a clear narrative or cogent explanation for all of your offending, whether to the police at interview or to your medical professionals. As I have said above, some explanations remain confusing as of today. The prosecution says this that reflects poorly on your insight into your offending behaviour.
5. In my view, some allowance must be made for the fact that when you gave your accounts in 2022 and 2023 it is likely that you had been suffering the onset of frontotemporal dementia.
6. Further, I have before me a good deal of evidence that you are deeply ashamed and remorseful for what you have done. This appears through your record of interview, your medical reports, and your references, which I have summarised. You have always acknowledged your wrongdoing. I accept that this remorse is genuine.
7. You receive credit for this remorse and for your facilitation of the course of justice by your plea of guilty.

Prospects of reform, specific deterrence and community protection

1. I turn to the questions of your prospects of reoffending or reform, specific deterrence and community protection.
2. I think that it is highly unlikely you will ever offend again.
3. You will never hold a practising certificate again.
4. With your age and dementia it is difficult to envisage that you will ever be placed in a position of trust again.
5. I also doubt, as the years pass, that you will have the cognitive capacity to re-offend. Similarly, I am conscious that your dementia may or will reach a point where the specific deterrent effect of any sentence imposed upon you will lose much of its force.
6. Overall, at a practical level, specific deterrence and protection of the community have little, if any, meaningful role to play in this sentencing exercise.

Just punishment, general deterrence and denunciation

1. On the other hand, the sentencing principles of just punishment, general deterrence and denunciation must continue to play a meaningful role in your sentence, even with the moderating effect which your age and mental health issues will have upon them.
2. Offences involving a solicitor's breach of their client's trust is viewed with abhorrence. As the Court of Appeal observed recently in Kotsifas v The Queen:

The sanctity of a solicitor's trust account is a matter of fundamental importance. As every solicitor knows, when a client entrusts funds to a solicitor to be used for specific purposes, those funds are impressed with that trust and must not be used for any other purpose without the client's express consent.[42]

1. To that can be added statements like the following:

Society treats a solicitor's abuse of a client's trust with abhorrence. In general, that is because any abuse of vulnerability is odious. More particularly, in this context, it is because the commission of these types of offences reduce community trust in the legal profession as a whole.[43]

1. In punishing you, the sentence must still have some denunciatory and deterrent effect. These considerations, which reflect the gravity of your offending, must be balanced against the many factors in personal mitigation which I have canvassed.

1. I turn to the question of current sentencing practices and submissions on disposition.
2. Both the defence and prosecution referred me to a number of solicitor fraud cases as a guide to current sentencing practices. I have considered these.
3. Individualised justice demands that every sentence must be appropriate for the individual offender having regard to the facts and circumstances specific to that case. That said, these sentences do demonstrate that generally terms of imprisonment can be expected for solicitor frauds. A review of the cases also shows a range of global outcomes spread across the single figures, with a grouping clustering towards and around the mid-single figures.
4. As I said, every case is different. There are serious aspects to the objective gravity of your offending which pull in the direction of a heavier sentence; but on the other hand, your case stands apart from the other solicitor fraud cases as a result of your personal circumstances, especially your advanced age and dementia, which call for leniency or mercy.
5. I have concluded that the gravity of your offending is too great to impose anything less than that a term of imprisonment. Old age and ill-health do not justify the imposition of an unacceptably inappropriate sentence.
6. The prosecution made a submission to the effect that a term of imprisonment in combination with a community correction order (CCO) is within range.
7. I make the following observations about that submission.
8. Having regard to all the matters placed before me, especially the objective gravity of this offending, I have decided that the only appropriate sentence in your case, making full allowance for the principle of parsimony, is that of an imprisonment sentence involving a head sentence and a non-parole period. That sentence is demanded.
9. In addition, at present it is not possible to assess the effectiveness of a CCO to commence well into the future for someone with dementia which is rapidly declining. It is a matter of speculation as to what the state of your mental health will be at the future commencement of the operation of any CCO. Still less is it possible to assess your capacity to comply with terms and conditions. In short it cannot be practically determined today what conditions should be attached to the order to address your needs and circumstances at some point in the distant future. Similarly, it is not possible to assess the appropriateness of conditions which might be needed to reflect the punitive and denunciatory requirements of a sentence, including some unpaid community work component. Any such condition is likely to be futile. Estimating the appropriate duration of a CCO to commence in the future for someone with your medical conditions is also fraught with danger.
10. In short, I am not satisfied that a combination sentence in your case can sensibly be fashioned to serve all the purposes of sentencing.
11. This is one of those cases where it is demonstrably more appropriate to fix a non-parole period than to impose a combination sentence. The Adult Parole Board will be well placed to assess how you are faring in custody, and will be able to tailor parole conditions to your needs as they then appear to be.[44] Should the authorities see fit to grant you parole, they will no doubt take into account the need to ensure that you are supported in your reintegration into the community.
12. I have also concluded that I can appropriately accommodate all your factors in mitigation, especially those relating to your age and frontotemporal dementia, in moderating the length of both the head sentence and the non-parole period, to arrive at a just, proportionate, and appropriate sentence.
13. Your counsel submitted that, should a combination CCO sentence in your case not be appropriate, I should treat the prosecution submission at least as a general guide to the appropriate sentencing range for your case when fixing a head sentence and non-parole period. I will do this. I will also treat the submission to include a recognition by the prosecution of the significant weight which must attach to your personal circumstances, especially those relating to your age and frontotemporal dementia.

1. Finally your offending was concerned with the estates of two different persons. The offending was also separated by time. My orders for cumulation and concurrency will reflect this.

1. I will now move to impose the sentences upon you.
2. On charge 1 you are sentenced to 18 months' imprisonment.
3. On charge 2 you are sentenced to 18 months' imprisonment.
4. On charge 3 you are sentenced to 18 months' imprisonment.
5. On charge 4 you are sentenced to 22 months' imprisonment. This will be the base sentence.
6. On charge 5 you are sentenced to 18 months' imprisonment.
7. On charge 6 you are sentenced to 22 months' imprisonment.
8. On charge 7 you are sentenced to 18 months' imprisonment.
9. I direct that 6 months of the sentence imposed in relation to charge 6 be served cumulatively upon the base sentence imposed on charge 4.
10. All other sentences are to be served concurrently with the base sentence and with each other.
11. This makes for total effective sentence of 28 months' imprisonment.
12. I fix a non-parole period of 12 months' imprisonment.

Section 6AAA

1. Had you not pleaded guilty I would have imposed a total effective sentence of 4 years and 4 months and a non-parole period of 2 years and 4 months.

[1] By order of the Victorian Civil and Administrative Tribunal made on 30 March 2022, you were ordered to surrender your practising certificate with immediate effect. You also gave an undertaking not to apply for a practising certificate, nor to engage in legal practice, at any time in the future. See Victorian Legal Services Commissioner v Roache (Legal Practice) [2022] VCAT 353.

[4] Victorian Legal Services Commissioner v Roache (Legal Practice) [2022] VCAT 353.

[5] [2019] VSC 684. See also Kotsifas v The Queen [2021] VSCA 368, [88] (Kaye JA).

[6] For similar reasons, I also do not place any weight on the 2015 finding by the Legal Services Commissioner in assessing your moral culpability. The 2015 finding is referred to at [15] of VCAT's decision in Victorian Legal Services Commissioner v Roache (Legal Practice) [2022] VCAT 353. Little is known about this matter.

[7] I note also that you had previously entered into a deed with Coulter Legal in June 2022, as part of the process to repay the trust deficiency. This deed contemplated, inter alia, the sale of these properties. That deed was entered into voluntarily and before the Director of Public Prosecutions (the Director) took steps in October 2022 to freeze your assets.

[8] Reference of Richard Anderson dated 23 December 2022; Reference of Dr R. Byron Collins dated 3 February 2022; Reference of John Cleary dated 12 December 2022; Reference of David Dunoon dated 8 January 2023; Reference of Father Kevin Dillon AM dated 6 February 2023; Reference of Bill Mithen dated 6 February 2023; Reference of Gerald Miller dated 8 February 2023; Reference of Dr Hugh Seward AM dated 22 December 2023.

[9] Reference of Father Kevin Dillon AM dated 6 February 2023, 2.

[10] Reference of Gerald Miller dated 8 February 2023, 1.

[12] Torrefranca v The Queen [2021] VSCA 157, [41].

[13] Victorian Legal Services Commissioner v Roache (Legal Practice) [2022] VCAT 353.

1. [14] Reports of Tony McHugh, Consultant Psychologist, dated 3 November 2021, 28 March 2022 and 22 May 2023; Report of Dr Edmond van Ammers, Consultant Psychiatrist, dated 4 August 2022 and discharge summary dated 7 October 2022 (dated 14 October 2022 on covering letter); Report of Dr Tom Bradley, General Practitioner, dated 13 October 2022; Report of Gregory Neerhut, Urologist, dated 14 October 2022; Report of Martin Jackson, Neuropsychologist, dated 13 December 2022; Reports of Dr Alistair Mander, Geriatrician, dated 30 December 2022, 28 January 2023 and 24 April 2023; Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023.

[15] Report of Martin Jackson, Neuropsychologist, dated 13 December 2022, 14.

[16] Report of Martin Jackson, Neuropsychologist, dated 13 December 2022, 14.

[17] Report of Martin Jackson, Neuropsychologist, dated 13 December 2022, 14.

[18] Report of Martin Jackson, Neuropsychologist, dated 13 December 2022, 14.

[19] Report of Martin Jackson, Neuropsychologist, dated 13 December 2022, 14.

[20] Report of Martin Jackson, Neuropsychologist, dated 13 December 2022, 15.

[21] Report of Dr Alistair Mander, Geriatrician, dated 30 December 2022, 1.

[22] Report of Dr Alistair Mander, Geriatrician, dated 28 January 2023, 1.

[23] Report of Dr Alistair Mander, Geriatrician, dated 28 January 2023, 1.

[24] Report of Dr Alistair Mander, Geriatrician, dated 28 January 2023, 1.

[25] Report of Dr Alistair Mander, Geriatrician, dated 24 April 2023, 1.

[26] Report of Dr Alistair Mander, Geriatrician, dated 24 April 2023, 1.

[27] Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023, 14 [53(11)].

[28] Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023, 14 [53(12)].

[29] Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023, 14 [53(13)].

[30] Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023, 13 [53(13)].

[31] Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023, 13 [53(8)].

[32] Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023, 13 [53(8)].

[33] Report of Patrick Newton, Forensic Psychologist, dated 9 May 2023, 15 [53(15)].

[34] Letter from Kyra Low, Acting Director (Clinical Governance), Department of Justice and Community Safety, to the Office of Public Prosecutions dated 22 May 2023, 3.

[35] Letter from Kyra Low, Acting Director (Clinical Governance), Department of Justice and Community Safety, to the Office of Public Prosecutions dated 22 May 2023, 3.

[36] Verdins v The Queen [2007] VSCA 102; (2007) 16 VR 269.

[37] Verdins v The Queen [2007] VSCA 102; (2007) 16 VR 269, 276 [32].

[38] The Queen v RLP [2009] VSCA 271; (2009) 213 A Crim R 461, 473-74 [28]-[29], quoting R v Engert (1995) A Crim R 67.

[39] The Queen v RLP [2009] VSCA 271; (2009) 213 A Crim R 461, 473-74 [28]-[29], quoting R v Engert (1995) A Crim R 67; Harmon (a pseudonym) v The Queen [2017] VSCA 169, [84] (Ashley JA).

[40] R v RLP [2009] VSCA 271; (2009) 213 A Crim R 461, 476 [39].

[41] [2021] VSCA 169; (2021) 96 MVR 344 [39].

[42] [2021] VSCA 368, [61] (Maxwell P and Emerton JA) (emphasis added).

[43] Director of Public Prosecutions v Bouhalis [2019] VSC 684, [39] (together with the authorities cited therein).

[44] Deng-Mabior v The Queen [2015] VSCA 179 [39]-[41]; Abdou and Chebib v The Queen [2015] VSCA 359, [39].