DPP v Tzounos [2025] VCC 808

Ms Bennett's name. 6. In the affidavit you filed in respect of your change of plea application, you said that at that time you were pursuing a big contract with Ferguson Plarre a large bakery franchise. You said in the affidavit, you knew you would not have passed a credit check due to previous defaults. In fact, you were made bankrupt in 2016. 7. You also have a relevant prior conviction from 2012, which I accept was also likely to hinder your ability to obtain the contract with Ferguson Plarre. You did obtain that contract, and the money received from Ferguson Plarre, was the only substantial income earned by Australian Solar during the period in which the offences took place. 8. Between 18 April 2018 and 1 March 2019, you used company accounts and the AMEX credit card for personal expenditures, as set out in the prosecution opening. I will not list all those expenditures, but the total value across the two bank accounts and the Westpac credit card is $133,348.90. The charge on the indictment particularises the deception as making unauthorised purchases and payments using your two accounts and the American Express card. 9. The prosecution puts the deception as that you impliedly or expressly represented to Ms Bennett that you would only use company funds and the American Express card for company purposes, and that you thereby gained access to the funds, which you used over an extended period for your own benefit. That is the basis of Charge 1 obtaining financial advantage by deception. 10. The background circumstances need to be described a little bit further. In her police statement Ms Bennett said this, in relation to the setting up of the bank accounts: 'All bank accounts were put in my name contrary to what we originally agreed to when we started the business. This was abruptly brought to my attention during the opening of the accounts with the bank consultant.' 11. There was a contested committal hearing in this matter and Ms Bennett was cross-examined about payments made and the use of the American Express card. She was taken to the list of payments detailed in her statement and she said that they did not relate to the business, and she did not approve any of the payments that did not relate to the business. She said that you had told her early in the piece, that you had secured a big commercial job. She was taken to a deposit of $279,180 paid into the company account in June 2018. She was also cross-examined over an amount of $27,550, which she withdrew from the company. 12. In respect of that amount there is no dispute, and I accept, her explanation that she was owed money from her previous involvement in a solar company where you were employed but which you did not run; and that you told her that she could pay herself that money out of the company accounts. 13. Regarding the $279,180, she said you told her that it was a loan you had obtained for the business, and she said that you had earlier told her that the Ferguson Plarre deal did not go through because the panels were stolen. She gave evidence at the committal that when you rang her from the Werribee police station, she asked you if that money was from Ferguson Plarre and it was only then that you told her the money was from Ferguson Plarre and that she had nothing to do with it. 14. The prosecution submitted that this conduct was relevant to support the existence of the deception alleged in the charge, and that the purpose of telling her the money was a loan was to hide from her the true source of the funds coming into the company, presumably to allow you free reign in using those funds. 15. Mr Marshall submitted that I should not accept the evidence that she was told this money was a loan to the company. However, Ms Bennett gave clear evidence on this point, and she was not challenged during the committal proceedings about that evidence. There is no contrary evidence. 16. I accept beyond reasonable doubt that you told her the money came from a loan. I should say there is not contrary sworn evidence before me, and I accept beyond reasonable doubt that you told her that that money came from a loan. 17. Ms Bennett was cross-examined in relation to the American Express card at the contested committal. She said she was personally responsible for the money owed on the American Express card. She said she was the primary card holder because she was the sole director. She said the card was solely for "Bill out on the road, that's what it was for". She said, "s_o the card was solely for him for business. I never used it._" She was asked, "You were regularly, I appreciate you didn't use it, but you were regularly made aware of what it was being used for weren't you? Answer: Only when I would get the statements". She said she read the statements until she realised that it wasn't being used correctly. She said this, "I mean once the AMEX card got maxed out, I had debt collectors ringing me. I stopped looking at the statements and I didn't know what to do. All I knew was that I had not created this debt, I had not touched that card". 18. On 11 December 2020, Ms Bennett reported the unauthorised transactions, and then on 20 May 2021, she participated in a recorded phone call with you, but the recording failed because the device did not operate properly. 19. On 25 October and 9 November 2021, search warrants were executed on various bank accounts, seizing relevant bank statements. Police made multiple efforts to locate and contact you for an interview, however, ultimately, you did not participate in a recorded interview. You did not attend an arranged interview on 11 August 2021. 20. Ms Bennett's victim impact statement was read out in court by the prosecutor, Mr Turner. She said, she felt as though you coerced her into a business venture with a premeditated purpose of syphoning money and leaving her responsible. She regarded you as a friend after knowing you for many years. And now because of this betrayal, she doubts if she will ever be able to trust anyone again. She says that at the age of 60 she moved from Horsham to Melbourne leaving her family and friends behind to pursue the dream of being a successful director of a solar company; and she is now psychologically, emotionally and financially destitute. 21. She feels guilt, embarrassment and shame. She says she turns 65 in July, and she has lost virtually everything. She has a substantial debt in her name, arising from her involvement with the company and believes her only option is to file for bankruptcy. She doubts if she will ever fully trust anyone again. 22. It is obvious from the victim impact statement that the offending in this case has had a significant ongoing impact on Ms Bennett, and that is a significant matter to take into account in sentencing in this case. 23. The seriousness of the offence of obtaining financial advantage by deception is reflected in the maximum penalty of 10 years' imprisonment. 24. Mr Marshall submitted that this is not a case where the whole enterprise was a sham and all of Ms Bennett's losses can be attributed to you. It does seem to me to have been a genuine business venture which failed, and Ms Bennett did receive some payments through the business and that is relevant to assessing her losses. Furthermore, you did bring in income for the company and as far as I can tell you received no remuneration other than what you deceptively took from the company. 25. That said, the impact on the victim Ms Bennett has been very substantial and that is largely due to your fraudulent conduct. This is not a case where you deceived a corporation or an entity with significant financial resources. You deceived a person you knew well. She is a person without the financial resources to cope with the debt she has been left. You have made no restitution or compensation in relation to her losses even though you have been working. 26. Given your personal relationship and knowledge of Ms Bennett, I am of the view that this offending involved a manipulation of her and a breach of trust. I accept she was a soft target. She was not a person with any significant experience in running a company and you must have been aware of this. It is inherent in the prosecution charge that you intended to use the money you knew was coming into the company from Ferguson Plarre for your own personal benefit from the outset. 27. I accept that there was surrounding dishonest conduct designed to help you to achieve unfettered access to that money. You then used the funds for your own personal expenses including non-essential spending, such as staying at relatively expensive hotels in Greece on an overseas holiday. You also paid your children's private school fees with money obtained and made other payments, for example to Tennis Australia. I do not conclude that you were living an extravagant life and there is reference in the material to your own financial pressures, but you did plainly use this money for non-essential purposes. 28. Once you had exhausted the company funds, Ms Bennett, who you had installed as a director, was left with the debts, including a tax debt of $63,000. This was deliberate and sustained offending for which you must bear substantial moral culpability. 29. The weight to be given to your guilty plea, which you entered in 2023, is substantially reduced in this case, because you made an application to withdraw that plea. Your evidence on that application was that you deny you were dishonest or deceptive and that was a major part of the reason why you should be allowed to change your plea. It is therefore in my opinion, not open to find your guilty plea reflects remorse for your conduct; and Mr Marshall did not submit there is any significant evidence of remorse. 30. There is reference in a psychological report, tendered on your behalf, from Mr Ball, that you are remorseful in respect of the impact on your family, but you show no significant remorse in respect of the impact on Mr Bennett. 31. However, in the latest Community Correction Order assessment report I ordered, you do seem to acknowledge some level of responsibility of the offending. And that is something. 32. Your guilty plea does have a utilitarian benefit in that a trial has been avoided and the prosecution, the police and the court have been spared the use of the resources required for a trial. Importantly, Ms Bennett did not have to give evidence again about these matters, although she did give evidence of a contested committal. 33. However, the utilitarian value of your plea substantially reduced because your change of plea application caused delay and further hearings in this matter since the date on which it was first listed as a plea in April of 2024. 34. Turning then to your personal circumstances. You are 54 years old. You were raised in Williamstown with your mother and father and one older brother. Your mother and father operated a shoe repair business in Footscray. Your mother passed away at the age of 78 and your father lives with your older brother. You reported a dysfunctional upbringing characterised by violence in the home. Your father was apparently a problem gambler. 35. You struggled at school with bullying by other students because of your Greek heritage and you were an average student. You left high school during Year 11, and you went to Footscray Institute of Technology to complete a diploma in drafting. 36. At the age of 16 you worked part-time in a paint store. You then worked as an apprentice chef in St Kilda for about 12 months and later managed a paint store in Williamstown working with various other companies over the years. Between 2009 and 2011, you worked as a mortgage broker before becoming involved with ASA. You have had pretty much continuous employment throughout your adult life. After ASA, you have worked in various sales positions and for approximately 10 months you have been a sub-contractor selling water filtration systems. Your current income is variable because it is commission based, and you contribute to the family mortgage which is in the amount of $700,000. 37. You and your wife married in 2005. She is the mother of your three sons: twins aged 17 and the youngest who is aged 14. There is currently a family violence intervention order in place which excludes you from contacting your family or returning to the family home. You have contact with your children with the consent of your wife. 38. You have a limited but nonetheless relevant criminal history. When you were 21 years old you were sentenced to a good behaviour bond for theft in 1994. Given the time that has passed and your age when that offence occurred, I do not regard that as of any real significance to sentencing. However, in 2012, you were sentenced to a nine-month Community Correction Order with 60 hours of unpaid community work for three counts of financial advantage by deception. 39. Mr Marshall set out that the basis of the deception in that case was providing false particulars on a loan application at a time when you were working for a roof restoration company. Of course, you are not to be sentenced again for that prior conviction, but it is relevant in that it demonstrates your dishonesty, and it goes to the importance of specific deterrence in this case, the assessment of your moral culpability and your prospects of rehabilitation. 40. These offences occurred in 2018 and 2019. Ms Bennett first reported the offending to police in December 2020. You were not charged until late 2021. The contested committal took place in September 2022. You then pleaded guilty in 2023, after a relatively lengthy period of negotiation with the prosecution. The matter was listed for plea in April 2024. Shortly prior to that date, you engaged new legal representatives and notified the court you intended to apply to withdraw your plea. That application was heard by me earlier this year. 41. Your counsel relied on delay as a mitigating factor. He submitted I should date the delay to the end of the offending in 2019 and include the time it took for

Ms Bennett to go to the police. However, Ms Bennett says in her statement she did not discover that you had committed these crimes until November 2020 when she was speaking to her accountant. Once that occurred, she reported the matter to police within a month. You did not attend an interview in August 2021 and police made further enquiries to locate you before charging you towards the end of 2021. 42. In my opinion, in the circumstances of this case, the delay between the end date of the offences and the report to the police was in no way inordinate and entirely understandable as was the period of the investigation before the charges were laid. Thereafter, the matter proceeded at the expected pace through the courts given the number of hearings required to get to the point we are now at. 43. However, I accept these offences occurred years ago and there is a staleness attached to them. I have taken into account that this matter has been hanging over your head for years and you have not committed any further crimes of dishonesty in that time. In this case, for the reasons that I have outlined, delay is a relatively modest mitigating factor because most of the delay is attributable to you exercising your rights within the court process. You are not to be punished for that, but it limits the benefit that can be obtained as a mitigating factor. 44. A psychological assessment from Mr David Ball, a Forensic Psychologist, was tendered to your behalf. His view is that you satisfy the criteria for persistent depressive disorder with anxious distress. In his report he says this about you.

'You are a man with the capacity to exercise generally good judgment and an ability to plan and execute positive and self-sustaining behaviours. You presented as high functioning and generally intelligent, but with limited insight into your general psychological functioning.'

1. Also relevant to your mental state is this, that on 9 May 2025, you texted your wife saying that you were going to kill yourself. She subsequently contacted 000 and a welfare check was conducted for your safety. You were taken to Frankston Hospital for further checks. You demonstrated limited insight into your emotional dysregulation. As I understand it, this incident is what triggered your wife to seek the intervention order that I have previously mentioned.
2. You are currently on a mental health care plan being treated by a Psychologist, Mr Stephen Mann with regular psychology sessions. A limited letter was provided to the court from Mr Mann, which confirms your involvement in psychological counselling, but the number and the frequency of those sessions is not detailed. You told Mr Ball you are prescribed antidepressant medication and medication for a bipolar disorder.
3. Your counsel submitted that having regard to your mental health as outlined above you are a risk of significant detrimental effects on your mental health if you are in prison and he submitted this satisfies Verdins limb 6 which is where there is a serious risk of imprisonment having a significant adverse effect on the offender's mental health, this will be a factor tending to mitigate punishment.
4. The initial report of Mr Ball from May 2025 says, that:

'You might benefit from ongoing treatment with your mental health provider and social support services.'

1. This does suggest your mental health is not at risk even if you were to cease treatment due to imprisonment. Otherwise, the issue of the adverse impact on your mental health is not considered. However, in an addendum report dated 3 June 2025, Mr Ball says, that there is serious risk that imprisonment may have a significant adverse effect on your depression as you will be 'further estranged from your supportive social peers and family and your existing professional support networks.'
2. Of course, you are already significantly detached from your wife and children, and I do not have a lot of evidence of some extended family support in front of me. You have some counselling from Mr Mann in the community and you have shared support from Orange Door and the Salvation Army and have sought other supports.
3. The prosecution submits that the evidence does not rise to the level required by Verdins limb 6. The prosecution refers to the psychometric assessment from Mr Ball which returned an invalid profile. Mr Ball says this:

'This means he denied or minimised most symptoms including those that might normally appear in general populations. He may have sought to betray himself in an unrealistically virtuous life.'

1. I have taken all of that into account. In the end, I am not satisfied that the evidence rises to the level required by Verdins limb 6, which is in my opinion quite stringent. What is required is a serious risk imprisonment will have a significant adverse effect on the offender's mental health. I am simply not satisfied in all the circumstances that, that limb is satisfied. That does not mean I disregard the evidence of your mental health, and I do accept that this, your first sentence, will weigh heavily on you for a variety of reasons including your current circumstances separated from your family and this background of mental health issues. It is clear to me, that the burden of a period of imprisonment on you will be significant.
2. The prosecution submits that taking into account the circumstances of this case and relevant sentencing principles, the only sentence within range is a term of imprisonment with a non-parole period. Your counsel, Mr Marshall, submitted that a Community Correction Order or a combination sentence of imprisonment and a Correction Order is within range.
3. In making that submission he referred to current sentencing practices. He referred to the sentencing snapshot in respect of these types of offences and placed before me a table of comparable cases, examples of dishonesty offending where the offender received a Community Correction Order. I have had regard to those matters. There are differences between those comparable cases and your circumstances, including that in most of the comparable cases the offender had no prior convictions. Of course, current sentencing practices are a guide to the appropriate sentence, but not a controlling factor and all cases are different.
4. In assessing Mr Marshall's submission, I have also taken into account that in my view you have reasonable prospects of rehabilitation. You have a long employment history, no issues with drugs or alcohol and only a limited criminal history. However, the offending in 2012 is a reason to exercise caution. It does display previous dishonesty which was on show again in these offences.
5. Furthermore, ongoing family support may not necessarily be there for you given your current circumstances and that is often a positive factor in respect of rehabilitation that may not exist for you in the future. Nonetheless, I take into account Mr Ball's opinion that you are likely to present with few, if any, challenges in terms of your safe management in the community as a factor going towards an assessment of reasonable prospects of rehabilitation.
6. The sentencing authorities for dishonesty offending such as this are clear that general deterrence must play a significant role. In this case because of your prior conviction in 2012 for similar offending, specific deterrence must also be given emphasis. Furthermore, I must denounce your offending on behalf of the community through the sentence I impose; and, in my opinion, just punishment is also important given the substantial impact on Ms Bennett in this case.
7. Ultimately, I consider that given the nature and gravity of the offences in this case, a proper application of sentencing principles does require a head sentence and a non-parole period. Just before I turn to sentence in this matter. There was one matter in relation to the victim impact statements I meant to add, and it is this. Insofar Ms Bennett's victim impact statement details financial impacts that relate to matters not covered by the charges, I have no regard to those matters.
8. Mr Tzounos, on the charge of obtaining financial advantage by deception you are convicted and sentenced to a period of imprisonment of 26 months. I fix a minimum non-parole period of 14 months.
9. I declare pre-sentence detention to be deducted from this sentence of eight days.
10. I indicate that but for your plea of guilty I would have imposed a sentence of 33 months with a minimum of 22 months. That is the 6AAA declaration in this matter.