R v Bourozikas [2008] VSC 558

3 On 9 May 2006, you wrote two trust account cheques, each in the amount of $50,000, and both payable to you. Both cheques were subsequently deposited into your personal cheque account, thus creating a deficiency of $100,000 in your trust account, which you attempted to conceal by creating false entries on the trust ledger, in the cash payments journal, and on the cheque book stubs.

4 You had also placed on the estate's file two unsigned letters addressed to each of the beneficiaries purporting to enclose a cheque for $50,000 to each of them as partial distribution of the estate. These matters came to light when, as part of a routine audit, the Law Institute investigators contacted Ms Lau and Mr Brooks seeking confirmation of the receipt of $50,000.

5 On 22 February 2008, you were interviewed by officers of the Fraud Squad. In that interview, you admitted depositing the two $50,000 cheques from the trust account into your personal bank account. You stated that you had been under financial pressure at the time and intended to borrow the money from the trust account and to pay it back. You admitted that you had spent all but $28,000 of the money paying off credit card debt, school fees, everyday expenses and a holiday to Greece, and you acknowledged that what you had done was dishonest. When asked if you had a reasonable excuse for having the deficiency in your trust account, you replied that there was no excuse, "I was just a stupid idiot."

6 In a letter dated 10 March 2008, you wrote to the Fraud Squad indicating that you would accept service of the hand up brief and that you intended to plead guilty. Amazingly, one week later, on 17 March 2008, you withdrew $43,170.79 from the account of two of your clients, Mr and Mrs Green, who were then living in America. The withdrawal was in the form of a Commonwealth Bank of Australia bank cheque, made payable to the Australian Taxation Office. At the time you had no authority to access Mr and Mrs Green's account, although previously you had been so authorised.

7 Once Mr Green became aware that the money was missing from the account and being notified by the Bank that it was you who had withdrawn it, he spoke to you by phone and you told him you needed the money as an emergency and that you would pay it back, initially by an instalment of $2,500 on 7 April and a further payment of $10,000 on 11 April.

8 The police were notified on 7 April 2008 and investigations revealed that a cheque for $2,500 was paid by you into Mr and Mrs Green's account, but it was subsequently dishonoured. No other attempt had been made to repay the money.

9 You were interviewed by the police in respect of this matter on 9 April 2008 and you admitted withdrawing the funds to pay your debt to the Australian Taxation Office as you were about to be declared bankrupt. You also told the police that Mr Green had agreed to loan you the money, which was not the case.

10 Your prior conviction for forgery, occasioned in 1991, also arose from your practice as a solicitor. On that occasion you were approached by persons in the Greek community wishing to privately adopt a child, and you witnessed and made a false declaration as to the paternity of that child. You were convicted and fined $2000, and in disciplinary proceedings brought by the Law Institute your practising certificate was cancelled for 12 months.

11 You are now 50 years of age, married, and the father of two children, one of whom, Dean, aged 13, suffers from a condition known as Global Developmental Delay Syndrome.

12 Your parents came to Australia from Greece in 1956, and in their early years here operated a fish and chip shop in Clayton. Your father ultimately worked in real estate, and died in his early 80s in 2002. Your mother has not been told of these offences. You are supported in your predicament by your wife and her parents, who have generously repaid the $100,000 owed to the estate of Mrs Brooks, and propose to make restitution on your behalf to the Commonwealth Bank of Australia.

13 You completed your HSC in 1975 and obtained a Bachelor of Economics in 1979 and a Bachelor of Laws in 1981 from Monash University. While at university, you established the Clayton Greek Youth Club, and you were its president and secretary. For a time you were also club secretary of the Clarinda Soccer Club between 1984 and 1988, and you have been honorary legal advisor to that club and to other associations within the Greek community.

14 Apart from two years as an employee solicitor, you have practised as a sole practitioner until April 2007 when your practice was placed in receivership and ultimately sold. Since then, you have been employed for 12 months as a leasing officer with United Petroleum, but you are presently unemployed.

15 A number of witnesses gave evidence on your behalf, including your general practitioner, Dr Anthony Lolatgis who detailed your medical history and, in particular, that you suffer from type-2 diabetes. These witnesses variously spoke of your standing in the local community, that you are regarded as a leader, that you are generous, well liked, loyal, community minded and an enthusiastic and supportive parent.

16 Your wife, Marilyn Yiannoudes, spoke of the long hours that you worked and the difficulties of caring for Dean, which difficulties, by reason of her work commitments, would be exacerbated if you were incarcerated and the concerns that each of you share concerning Dean's transition to a new school next year.

17 A report by Mr Cummins, forensic psychologist, dated 29 October 2008, was tendered in evidence on your behalf as Exhibit 2. Mr Cummins details your antecedents, which I accept. He opined that at the time of your offending, you suffered from an adjustment disorder with depressed mood which occurred in the context of suffering work-related burnout, coinciding with the loss of your office administrator who, it appears, had been a great support to you.

18 In Mr Cummins' view, you still present as being significantly depressed. He reports that you are embarrassed, ashamed, and remorseful for your offending conduct which, he said, represented a self-destructive cry for help against a background where you were not coping adequately in a psychological sense, triggered by work-related stress and pressures.

19 Dr Handrinos, consultant psychiatrist, has seen you on 12 occasions since April 2007, that is, you have been under his care and he has been counselling and treating you since after you committed the May 2006 offences, and before and after you committed the theft in March 2008. His report, dated 12 October 2008, was tendered in evidence as Exhibit "5". Dr Handrinos describes your initial presentation as "being flat and depressed, soon after being caught out on legal trust matters".

20 He described you as being troubled by anxiety, and after your return from Greece you were down and despondent, although in his opinion, you did not develop a major depressive illness and he did not therefore prescribe you any medication. He stated in his report that:

"It seemed that Mr Bourozikas was suffering an adjustment disorder. He needed an opportunity for general support, and ventilation of his concerns."

21 Dr Handrinos is your treating psychiatrist. He does not say that you were depressed at the time of either of the episodes of your offending.

22 You have not given him a history of any major psychiatric or psychological condition, he does not describe your mental state at the time of the May 2006 offence and indeed he describes the trip to Greece which preceded the March 2008 offence as a psychological circuit breaker.

23 Although it is not apparent whether Dr Handrinos was aware of Mr Cummins' report when the former proffered his opinion, it must be said that his opinion as to your psychological condition appears to be couched in more constrained terms than that proffered by Mr Cummins. In these circumstances, I would prefer the opinion of your treating psychiatrist who saw you one year after the first offences, and contemporaneously and subsequent to the March 2008 offence. Further, apart from saying to the police in respect of the first offences that you were under financial pressure and in respect of the March 2008 offence that you needed to settle the debt to avoid bankruptcy, you gave no answers which suggested that your mental state impacted upon your offending on either occasion. In these circumstances, while I accept that you were under financial pressure and that you may well be suffering an adjustment disorder now, although Dr Handrinos's report is not clear on that aspect, I am not satisfied that your psychological condition attracts the principles of Verdins'[1] case so as to reduce your moral culpability and to impact upon considerations of general and specific deterrence.

24 Your counsel has submitted that the genesis of your offending is that you struggled to maintain the appearance of a successful solicitor when the reality was that you were working long hours, yet not attaining financial success. It appears that the pressures of your working life were compounded by the early retirement of your conveyancing clerk upon whom you placed great reliance. By your own admission, the money stolen was spent to fund your lifestyle including the trip to Greece, described by Dr Handrinos as a psychological circuit breaker and according to what you told Mr Cummins, a family holiday to Bali and fees for your daughter to attend Wesley Pre-School.

25 Although the money stolen from Mr and Mrs Green was intended to meet your obligations to the Australian Taxation Office so as to avoid bankruptcy, there is no doubt that the other moneys were stolen to fund your lifestyle choices and thus, as the prosecutor submitted and I accept, you were simply living beyond your means.

26 Various reports concerning your son's condition were tendered in evidence as Exhibit "3". He has been diagnosed with ongoing development delay, ataxia, and ocular motor apraxia, a condition of the eyes. He requires weekly speech and occupational therapy and the assistance of a full time integration aide at his present school. His full IQ is 73 which places him within the borderline range of intellectual functioning. Obviously his full time care will fall to his mother should you be incarcerated and therefore, your counsel relied upon this hardship to your family as an exceptional circumstance and one of the factors which, when taken together with your pleas of guilty, your remorse, your psychological condition and your good character, would warrant the imposition of a non-custodial sentence.

27 I accept that your imprisonment will effect a hardship upon your family and I propose to take that into account in determining the appropriate sentence but I do not consider that it amounts to an exceptional circumstance which warrants the imposition of a non-custodial sentence either on its own or in combination with the other considerations. Your son's disabilities were obviously known to you at the time of the offending both in 2006 and in 2008. His disabilities did not prevent you from absenting yourself from the home in order to take the trip to Greece, and although your present concerns involve not only the impact of your incarceration upon him and your daughter and his transition to a new school next year, it is apparent that you and your wife will have the support, at least of your wife's parents, who, no doubt, would be willing to assist in that process.

28 In sentencing you, I must have regard to the nature and gravity of the offences here committed. The defalcation in your trust account is a serious breach of your professional obligations, and the theft of your clients' money on three occasions two years apart is a significant breach of trust, it is reprehensible conduct of the highest order. It is conduct which brings the profession into disrepute and impacts upon the confidence the community reposes in the profession. It follows that I regard these as serious offences and your culpability as high.

29 Considerations of general deterrence carry considerable weight, as does the need to pass a sentence which will seek to punish you and act in denunciation of your conduct.

30 Your counsel submitted that specific deterrence may be given less weight by reason of your psychological condition at the time of the offending but, in my view, that amounts to no more than an inability to cope with the pressures of sole practice and, in any event, you committed the theft from Mr and Mrs Green when you had not only been interviewed by the police in respect of the thefts from the Brooks' estate, but you had indicated that you would plead guilty to those offences.

31 In these circumstances and particularly when you have a prior conviction for forgery which related to your conduct as a solicitor, in my view specific deterrence should be given considerable weight. For these reasons, I am satisfied that a sentence of imprisonment actually to be served is the only appropriate sentence.

32 Accordingly, in sentencing you, I take into account your pleas of guilty, that by reason of your pleas, you have facilitated the administration of justice and saved the community the cost of possibly two trials and the witnesses the ordeal of giving evidence. I take into account also your remorse, your previous good character and the fact that you are held in high regard by your friends and associates, and I take into account your community service. I take into account that at the age of 50 you will be serving a sentence of imprisonment for the first time and that your incarceration will effect a hardship upon your family. I take into account also that the monies have and will be repaid. In short, I take into account all matters which go in your favour.

33 Accordingly, you are convicted and sentenced as follows: On Presentment No. X00942529, Count 1, deficiency in a trust account, six months' imprisonment. Count 2, theft, nine months' imprisonment. Count 3, theft, nine months' imprisonment.

34 Your counsel has submitted that concurrency is here appropriate because the offences all arise out of the one transaction, and while in a sense that is so, nonetheless, Counts 2 and 3 involve different victims and you deposited the cheques into your personal account on different dates and you sought to conceal your activity by placing letters on each of the respective beneficiaries' files.

35 In these circumstances, your offending conduct does warrant a degree of cumulation, and I order that three months of the sentence imposed on Count 3 be served cumulatively with the sentence imposed on Count 2. Count 1, by operation of law, will be served concurrently with the sentences so imposed on Counts 2 and 3.

36 In respect of Presentment X01811787, being the count of theft from Mr and Mrs Green, you are convicted and sentenced to 18 months' imprisonment, six months of which is to be served cumulatively with the sentences imposed in respect of Presentment X00942529. That is, 18 months' imprisonment.

37 The sentence I impose is one of 18 months' imprisonment. You are to serve six months of it. Twelve months of it is, therefore, suspended, and is suspended for a period of 18 months, and the operational period is 18 months.

38 That means you are not to commit another offence punishable by imprisonment in the next 18 months, running from today. If you do, and irrespective of the sentence that is imposed, if it is an offence that is punishable by imprisonment, then you will be in breach of this sentence and unless exceptional circumstances can be shown, you will face a real and grave risk of serving every day of the balance of the sentence. That is every day of another 12 months.

39 Do you understand the sentence I have imposed upon you?

41 HER HONOUR: You may be seated, thank you. Are there any matters, Madam Prosecutor?

42 MS BORG: Section 6AAA, Your Honour, which is the - - -

43 HER HONOUR: Yes, thank you. Yes, pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty I would have imposed a sentence of 24 months' imprisonment, and I may or may not have suspended any part of it.

[1] R v Verdins; R v Buckley; R v Vo [2007] VSCA 102; (2007) 16 VR 269