The Queen v Vance; LSC v Vance [2014] VSC 421

LEGAL PRACTITIONERS - Application to strike solicitor's name from the roll of persons admitted to the legal profession held by the Supreme Court - Application granted (unopposed).

1 For over 18 months, Euan Peter Lionel Vance did things - seriously criminal things - that no solicitor should ever do. Mr Vance will now go to gaol for his crimes. He will also have his name struck off the roll of legal practitioners.

2 It all started innocently enough. His elderly and infirm client George William Cutts wanted to execute a financial power of attorney appointing Mr Vance as the attorney. Unfortunately, Mr Cutts' state of ill health meant that he could not sign the document. So Mr Vance allowed his employee solicitor do so on Mr Cutts' behalf. That would have been all right had there been the necessary witnesses present. Would it were so. But it was not. Instead of starting again and completing the procedure in the right way, Mr Vance then cut a corner in a criminal way. In particular, he later forged the signatures of two other employees on the document.

3 Then he compounded one crime with many more. He used copies of the forged document, and another forged document, dishonestly to deceive banks into gaining access to Mr Cutts' funds on numerous occasions and in very large amounts. Mr Vance transferred funds from Mr Cutts' accounts to his own, obtained bank cheques drawn on Mr Cutts' accounts and withdrew vast amounts of cash from those accounts. The total amount dishonestly obtained was over $1.2 million.

4 Mr Vance did all manner of things with those funds. For example, he spent nearly $130,000 on cars for his female employees and their relatives. This, he later said, was consistent with his (now deceased) client's instructions that he was to spend 30 percent of his assets helping out single mothers.

5 He bought premises worth over $200,000, into which he moved his legal practice. He bought a block of land worth nearly $80,000. These, Mr Vance said, were investments for Mr Cutts. Yet, long after their purchase, he had not managed to transfer the properties into his client's name. Nor did he produce any record of the rent he said he paid to Mr Cutts on the business premises.

6 Incredibly, Mr Vance kept over $340,000 of Mr Cutts' money in cash in a safe he buried under the dirt floor of his shed. This, said Mr Vance, was done to avoid the risk of losing Mr Cutts' funds should there be a run on the banks in the wake of the global financial crisis.

7 Hundreds of thousands dollars more remains missing. Mr Vance says he does not know where it all went.

8 In 2010, Mr Vance also used another forged document in relation to a former client, Anne Doyle. Mr Vance was approached by Mrs Doyle's son to complete probate and finalize her financial affairs after she died. Mr Vance forged the signature of his employee solicitor on a probate jurisdiction form for the will of Mrs Doyle. He sent a purportedly certified copy of that document to a bank with a request to transfer the balance remaining in Mrs Doyle's account to his firm. Mr Vance paid the resulting cheque, for over $14,000, directly into his office account rather than into his trust account, as required by law.

9 On 4 August 2014, Mr Vance pleaded guilty to 17 charges on two indictments. As will be apparent from the description of the offences, many of these charges comprise several transactions "rolled up" into the one charge.

10 On the first indictment, which concerns Mr Cutts, Mr Vance pleaded guilty to making a false document (Charge 1), eleven charges of obtaining property by deception (Charges 2-8, 10, 12-13 and 15) and three charges of obtaining a financial advantage by deception (Charges 9, 11 and 14).

11 On the second indictment, which concerns the estate of Mrs Doyle, Mr Vance pleaded guilty to using a false document (Charge 1) and having a deficiency in his trust account (Charge 2).

12 The plea in mitigation was heard over four days from 18 to 21 August 2014. By his own choice, Mr Vance was not represented by a solicitor or counsel. Mr Brown appeared for the Director of Public Prosecutions.

13 At the completion of the plea in mitigation, I heard an application on behalf of the Legal Services Commissioner to strike Mr Vance's name from the roll of legal practitioners. I shall deal with that application later in these reasons.

14 At the outset of the plea in mitigation, Mr Vance raised some preliminary matters.

15 First, he initially submitted that Charges 2-14 on the first indictment were "defective" or "invalid" for want of compliance with Schedule 1 of the Criminal Procedure Act 2009 (Vic) ("the CPA") because each referred to the particular section number of the Crimes Act 1958 (Vic) ("the Crimes Act") in which the offence was found, rather than to the sub-section creating the offence, or because each failed to follow the description of the offence in the relevant provisions, or both.

16 As I said at the plea, in my view, in the circumstances of this case, it was unnecessary for the indictment to refer to the particular sub-sections creating the offences. Instead, it was enough, for the purposes of Schedule 1 of the CPA, that the section numbers were mentioned, particularly where, as here, the offences were described in the particulars in words similar to those used in the provisions creating the offences.

17 One of the principal purposes of criminal pleading is to inform the accused of the offences it is alleged he or she committed. I do not consider that Mr Vance could have been under any misapprehension as to the offences to which he pleaded guilty. He appeared not to press this submission after I made the foregoing points.

Whose, and what, property was obtained by deception?

18 Mr Vance's second preliminary point was that the charges of obtaining property by deception concerning bank cheques (namely, Charges 2, 4, 5, 8, 10 and 15) were ambiguous, so that it was not clear whether he had pleaded guilty to obtaining bank cheques or to obtaining funds belonging to Mr Cutts.

19 Mr Brown indicated that, while the charges alleged the obtaining of cheques belonging to the banks, it was also alleged, as a relevant circumstance in the prosecution summary, that the cheques were used in a way that depleted Mr Cutts' funds.

20 Mr Vance initially submitted he should be re-arraigned. He said he thought he had pleaded guilty to obtaining money from Mr Cutts.

21 When asked whether he wished to apply to change his plea, Mr Vance said he did not wish to do so. He indicated that, if he were to be re-arraigned on those charges, he would plead guilty anyway.

22 Mr Vance's third preliminary point was that, on two bases, I should not take into account parts of the prosecution opening which referred to the use to which he allegedly put the funds obtained. First, he submitted that the use to which he put the funds was irrelevant to the charges to which he had pleaded guilty. Secondly, he indicated that he disputed the assertion, made several times in the prosecution opening, that he used the funds for his own purposes, as well as some of the related facts alleged.

23 I pointed out, and I maintain, that the use to which Mr Vance put the funds obtained is relevant to assessing the seriousness of the offences. I also noted that, sometimes, there is a tension between the principle that a person should be sentenced only for the offence to which he or she has pleaded guilty, and no other, and the principle that a court must take into account the surrounding circumstances of an offence. I was of course referring to the tension discussed in cases such as The Queen v De Simoni [1981] HCA 31; (1981) 147 CLR 383 and R v Newman & Turnbull [1997] 1 VR 146. I was, and remain, satisfied that there would be no breach of the first of those principles, and that there would be the necessary compliance with the second of them, in my having regard to the use to which Mr Vance put the funds.

24 However, given that Mr Vance disputed the Director's allegations on this topic, and that Mr Brown maintained reliance on those allegations, it became necessary to conduct a contested plea. Mr Vance ultimately gave sworn evidence about these and other matters. Thus, it falls to me to resolve the disputed facts before imposing sentence.

25 Accordingly, I shall outline the prosecution case and parts of Mr Vance's evidence, before announcing my conclusions on the disputed facts. Then, I shall turn to the other matters raised on the plea before imposing sentence. Next, I shall deal with the ancillary orders sought. Finally, I shall address the application to strike Mr Vance's name from the roll of practitioners.

Summary of prosecution case - First indictment - Mr Cutts

26 Mr Brown tendered a plea opening in respect of each indictment. In summary, the prosecution case on the first indictment was as follows:

27 Mr Vance was the principal of Legal Help Lawyers. He was admitted to practice in 2003. He usually worked as a sole practitioner but occasionally employed another solicitor. He also had several support staff over the years.

28 Initially, he conducted the practice from premises in Victoria Street, Eaglehawk. Later, in mid-2010, he moved to premises in Eaglehawk Road, California Gully. Both places are suburbs of Bendigo.

29 In May 2008, when aged about 87 and after suffering a stroke, George William Cutts moved into a nursing home in Bendigo. Soon afterwards, Mr Vance was engaged by Mr Cutts to prepare a new will appointing Nicole Scherger as executor and also as his financial power of attorney. Ms Scherger had been Mr Cutts' carer and friend.

30 In April 2009, Mr Vance handled the sale of Mr Cutts' house in Bendigo.

31 In August 2009, Ms Scherger died suddenly. Mr Cutts had been reliant on Ms Scherger. He became concerned about his financial affairs now that she was gone. He requested staff at the nursing home to contact Mr Vance to arrange a new power of attorney to be executed, appointing him as attorney.

32 On 30 September 2009, Mr Vance attended upon Mr Cutts at the nursing home with his employee solicitor Jessica Taylor. Mr Vance had prepared the new power of attorney. He explained it to Mr Cutts, who signified his understanding by nodding. Owing to Mr Cutts' inability to sign the document, Ms Taylor signed it at his direction. Ms Taylor, however, had come along with Mr Vance to be a witness. Now that she had signed the document, there was no one else qualified who had witnessed this process, such that the power of attorney was not valid.

33 Instead of starting again and following the required procedure so as to make a valid power of attorney, Mr Vance decided to cut a corner in a most illegal fashion. At some stage after he left the nursing home, Mr Vance forged the signatures of two of his other employees - Tabitha O'Shea and Leah Jenkins - on the document. Neither Ms O'Shea nor Ms Jenkins had been present at the nursing home when Ms Taylor signed the power of attorney. Neither of them had seen the document until shown it by police.

34 Then, from October 2009, Mr Vance told various financial institutions, by letter or personal contact, that he had been appointed Mr Cutts' financial power of attorney. He also provided each of them with a falsely certified copy of the forged power of attorney. This deceived the institutions into allowing Mr Vance to gain control of and operate Mr Cutts' accounts.

35 The remaining 14 offences charged on the first indictment involve Mr Vance operating those accounts in such a way as to transfer funds to his own accounts, obtain bank cheques and withdraw cash. The total amount concerned over $1.2 million. As indicated earlier, it will be apparent that many of these offences comprise several transactions "rolled up" into the one charge.

Charge 2: Obtaining eight bank cheques totalling $83,630

36 Mr Vance operated two accounts Mr Cutts held with the Bendigo Bank. One was a retirement account and the other was a term deposit account. Between 8 January and 19 March 2010, Mr Vance attended the bank on eight occasions and obtained bank cheques to the total value of $83,600 drawn on Mr Cutts' retirement account. He then paid those cheques into Bendigo Bank accounts he controlled.

37 Between 22 February and 22 December 2010, Mr Vance on 17 occasions withdrew $1,000 in cash from the same retirement account, making a total of $17,000.

38 Mr Vance also withdrew larger amounts of cash from the retirement account. On 25 March 2010, he withdrew $20,000, and, on 30 July 2010, he withdrew $30,000, making a total of $50,000.

Charge 9: Obtaining a financial advantage of $40,000

39 Mr Vance also transferred funds from Mr Cutts' retirement account to his own business accounts. On 18 June 2010, he transferred $20,000 to an account in the name of EPL Vance t/as Legal Help. On 30 June 2010, he transferred a further $20,000 to an account in the name of Advance Legal Services P/L.

Charge 11: Obtaining a financial advantage of $103,000.14

40 Mr Vance also transferred funds from another of Mr Cutts' accounts to his own. On 26 February 2010, Mr Vance opened a term deposit account with Bendigo Bank in the name of Mr Cutts. He transferred $100,000 from Mr Cutts' retirement account into the term deposit account. Then, on 26 August 2010, he transferred $103,000.14 from the term deposit account to a cash management account in the name of EPL Vance t/as Legal Help.

Charge 14: Obtaining a financial advantage of $190,000

41 On 26 October 2010, Mr Vance opened a Sandhurst Trustees savings account in Mr Cutts' name. (Sandhurst Trustees is part of the Bendigo Bank group of companies.) On the same day, he transferred $300,000 into that account from Mr Cutts' retirement account. He then transferred some of the funds in the Sandhurst Trustees account into accounts that he controlled. In particular, on 31 January 2011, Mr Vance transferred $160,000 to a Bendigo Bank business account in the name of EPL Vance; and, on 9 February 2011, he transferred a further $30,000, also to an account in the name of EPL Vance.

42 Mr Cutts held a cash management account with Westpac Bank. On the strength of the forged documents sent to it, Westpac allowed Mr Vance to control the account and even issued him with a "Handycard". Between 15 April 2010 and 11 July 2011, Mr Vance used the card on 327 occasions to withdraw cash from automatic teller machines ("ATMs"). The vast majority of withdrawals were in the sum of $1,000. In total, he withdrew $325,600 from the account in this way.

Charge 5: Obtaining two bank cheques totalling $30,000

43 In addition to those regular withdrawals from Westpac ATMs, Mr Vance also made two larger withdrawals from that account in a branch. On 22 March 2010, he made a staff-assisted withdrawal and obtained a bank cheque in the sum of $10,000 made payable to Advance Legal Support. On 1 April 2010, Mr Vance made another staff-assisted withdrawal and obtained a bank cheque for the sum of $20,000, also made payable to Advance Legal Support. Both cheques were deposited into Mr Vance's accounts.

Charges 12 & 13: Obtaining cash totalling $9,000 and $15,000

44 Mr Cutts held two accounts with the Commonwealth Bank - a pensioner security account and a streamline account. After gaining control of those accounts, over a period of 12 months, between 29 October 2010 and 26 October 2011, Mr Vance made nine withdrawals of $1,000 each from one account (Charge 12) and 15 withdrawals of $1,000 each from the other (Charge 13).

Charge 4: Obtaining two bank cheques totalling $34,499; and Charge 15 (in part): Obtaining two bank cheques totalling $32,600

45 Mr Vance used some of the money he misappropriated to buy motor cars for his staff members and some of their family members. On occasions, he gave the cars as a gift. On other occasions, he provided money as a loan without any requirement to pay interest. He did not enter into any written agreements. None of the monies repaid under the loans were deposited into any of Mr Cutts' known bank accounts.

46 Jessica Taylor worked for Mr Vance from mid-2009. Early in 2010, the engine in the car she was driving blew up. Mr Vance offered to lend her some money to buy a new car. On 1 March 2010, Mr Vance attended at Brian Dunn Ford with Ms Taylor and bought her a 2003 Ford XR6 for $15,000. Mr Vance used a bank cheque in the sum of $15,000 that he had drawn on Mr Cutts' retirement account to complete the purchase. (This is part of Charge 4.) There was no interest payable on the loan. Ms Taylor paid back about $14,000 of the loan to Mr Vance.

47 Early in 2011, Ms Taylor told Mr Vance she wanted to buy a Toyota Kluger from Kangaroo Flat Car Sales. Mr Vance offered to finance the purchase for her and she agreed that the repayment of the loan would be deducted from her wages. On 1 February 2011, Mr Vance drew a bank cheque for the sum of $21,700 on an account Mr Cutts held with Sandhurst Trustees to pay for the car. (This is part of Charge 15.) In about May of 2011, Ms Taylor stopped working for Mr Vance. By that time, she had paid back about half the loan. Mr Vance told her that he did not want to hear from her again, that she did not have to repay the rest of the loan and that she could treat it as a gift.

48 Marlene Taylor came to know Mr Vance through her daughter Jessica Taylor. Mr Vance told Mrs Taylor that, if she ever needed any money, she should see him. In March 2011, Mrs Taylor wanted to trade in her old car for a Chrysler Jeep Cherokee at Kangaroo Flat Car Sales. She approached Mr Vance for a loan. He offered to pay the changeover price of $11,900. Mrs Taylor was to repay the money when she sold her house. There was no written contract for the loan and no interest was payable on it. Mr Vance obtained a bank cheque for $11,900 made payable to Kangaroo Flat Car Sales from money in Mr Cutts' account with Sandhurst Trustees. (This is part of Charge 15. The balance of Charge 15 will be described later.)

49 Madison Scotton shared a house with Jessica Taylor and worked for Mr Vance between about September 2009 and late-2010. In August 2010, Ms Scotton's car was always breaking down. Mr Vance offered to lend her money to buy a new car. On 27 August 2010, he bought a Holden Rodeo for her from Epsom Motor Land. Mr Vance used a bank cheque in the sum of $19,499 that he had drawn on Mr Cutts' retirement account to complete the purchase. (This is part of Charge 4.) No interest was payable on the loan and the principal was to be repaid from deductions from Ms Scotton's wages.

50 The foregoing purchases of cars were all linked to bank cheques Mr Vance drew on Mr Cutts' accounts. Other purchases of cars and items for Mr Vance's employees or their families were made with Mr Cutts' funds but cannot be linked to specific transactions from his accounts.

51 For example, in April 2011, Ms Taylor's grandparents visited her at work and were introduced to Mr Vance. In conversation, it came out that the clutch had gone in their car three weeks earlier. The following day, Mr Vance told Ms Taylor that he would buy a new car for her grandparents, because he loved her. The purchase was to be a gift and not a loan. Mr Vance bought a 2011 Kia Rio sedan for $15,401 from City Automobiles in Melbourne for Ms Taylor's grandparents. The car was registered in her grandmother's name.

52 Another example is that Mr Vance bought Ms Taylor clothes, jewellery and an expensive handbag and purse, and gave her cash to spend on a holiday. He also paid for her rent sometimes, as well as her utility bills. Ms Taylor said she ultimately left Mr Vance's employ because he was always requesting her to leave her boyfriend and marry him.

53 A third example concerned Ms Scotton. She believed the Holden Rodeo Mr Vance had bought her only a couple of months earlier was costing her too much in diesel, so she arranged with Bendigo Toyota to trade it in on a Holden SS utility. The changeover cost was $13,000. Mr Vance paid that sum to Bendigo Toyota on 3 November 2010 from funds in an account he held in his own name. This was the account into which he previously transferred funds from Mr Cutts' term deposit account the subject of Charge 11. Not long after the purchase of the utility, Ms Scotton stopped working for Mr Vance. From text messages Mr Vance sent, it was apparent that he wanted to have a relationship with her. He asked her to go to a legal conference with him in Melbourne but she told him that she could not go because her boyfriend would not let her. Mr Vance sent her a message saying he was disappointed with her. Shortly after that, Ms Scotton took a day off work to attend the funeral of her boyfriend's grandmother. Mr Vance then told her not to bother coming back to work. He also told her that she did not have make any further repayments on the loan and that the Holden SS utility was a gift. Only a few thousand dollars had been deducted from her wages to repay the loans on both cars.

54 Yet another example concerned Ella Mulqueen, another female employee. Ms Mulqueen started working for Mr Vance in about September 2010. Mr Vance asked her to wear short skirts and revealing tops. He also sent messages to her after work commenting on how good looking she was. Mr Vance offered to buy her a car. She told him she could not accept a gift but arranged to borrow some money from him. On 23 September 2010, Ms Mulqueen attended at Waverley Nissan with Mr Vance where he bought a Kia Rio for $12,500 and placed it in her name. He paid that sum from funds in an account he held in his own name. Again, this was the account into which he previously transferred funds from Mr Cutts' term deposit account the subject of Charge 11. In October or November 2010, Ms Mulqueen stopped working for Mr Vance because, she said, the messages he sent to her made her feel uncomfortable. She told Mr Vance she would repay him for the car but he said not to worry about it and to treat it as a gift.

55 A fifth example concerned Kassie Place, another employee. On 3 May 2010, Mr Vance bought her a 2006 Commodore. He paid $13,995 cash for the car. The prosecution case is that this must have been cash withdrawn from Mr Cutts' account. The arrangement was that money would be deducted from her pay to repay the loan. Ms Place stopped working for Mr Vance late in 2010 without paying off much of the loan. She obtained another loan to pay the money back but Mr Vance told her that there was no need to do so and that it was a gift. Ms Place stopped working for Mr Vance, she said, because he acted inappropriately towards her at work and was always trying to have a relationship with her. At one stage, he gave her an engagement ring worth around $3,000 and insisted that she keep it as a friendship ring.

56 Finally, Mr Vance also bought a Holden Cruise for Morgan Wood, who was a female client of his whom he had befriended. He paid $6,800 cash for the car. Again, the prosecution case is that this must have been cash withdrawn from Mr Cutts' account. Ms Wood believes Mr Vance made it clear to her that he wanted a relationship, but she made it clear to him that she only wanted a professional relationship. He offered to lend her some money to buy the car and provided her with his bank account details so she could make repayments on the loan. However, she did not make any repayments as the car was tampered with and she had to pay for it to be fixed, which left her with no money. Mr Vance told her not to worry about paying for the car and that she could have it.

57 I should note here that, on my calculations, the total amount spent on cars for employees or their relatives was just under $130,000.[1] That does not include the money spent on other items, such as gifts for Ms Taylor or the ring for Ms Place.

Charge 8: obtaining two bank cheques totalling $209,095.56

58 Mr Vance also used funds from Mr Cutts' retirement account with the Bendigo Bank to buy two pieces of real estate.

59 In 2010, Mr Vance bought from Jo-Anne Tod a residential property at 331 Eaglehawk Road, California Gully. Afterwards, he moved his legal practice to those premises. In order to complete the purchase, on 2 June 2010, Mr Vance obtained two bank cheques from the Bendigo Bank by accessing funds in Mr Cutts' retirement account. One cheque was for $200,204.37 and the other was for $8,891.19.

60 Mr Vance had two staff members - Beverley Holt and Kassie Place - commence the paperwork he would need to complete the transfer. While some documents were drafted in the name Mr Cutts, they were never used. Transfer papers to have the rates and water put in the name of John Xerxes were drafted and sent to the Bendigo Council and Coliban Water. Ms Holt completed that paperwork, but it was queried by the Bendigo Council. After that, Ms Holt told Mr Vance she would not complete any more paperwork for the transfer. Ms Place also believed there was something wrong with the transfer and refused to do any more work on it.

61 Mr Vance completed the work himself and put the water and the rates in the name of John Xerxes (DOB: 1/1/61) of 112 Mount Pleasant Road, Forest Hill. That address was next door to Mr Vance's father's house. Both the name and date of birth are false. The residents at 112 Mount Pleasant Road knew Mr Vance's father but only met Mr Vance once, at his father's funeral. They had no knowledge of Mr Xerxes or the purchase of 331 Eaglehawk Road, California Gully.

62 After Mr Vance was arrested, police located in his office false transfer of land documents in the name of "Xerxes". Those documents had never been lodged and the property remained registered in the name of the vendor, Ms Tod.

Charge 10: Obtaining four bank cheques totalling $79,341.70

63 On 28 July 2010, Mr Vance commenced the purchase of a block of land at 11 Westwood Drive, Eaglehawk, from Kenneth and Robyn Geyer. To complete that purchase, Mr Vance withdrew funds from Mr Cutts' retirement account to obtain four bank cheques: one for $7,900 payable to Remax Gold Real Estate; one for $70,529.50 payable to KR & RE Geyer; one for $520 payable to Good Deeds Conveyancing Company; and one for $392.20 payable to the City of Greater Bendigo.

64 Transfer of land documents were drawn[2] but not filed for this purchase. The land remained registered in the name of the vendors, Mr and Mrs Geyer.

65 Neither of the two properties was recorded in the Legal Help Lawyer's trust account. Nor is there any record of Mr Vance, or anyone else, paying rent to Mr Cutts for either of those properties.

66 In January 2011, Mr Vance's father Peter Vance passed away in Melbourne. Bethel Funerals in Mitcham conducted a funeral service on 28 January 2011. The account for the service was sent on instruction to Euan Vance of 331 Eaglehawk Road, California Gully. On 21 March 2011, Bethel Funerals received a cheque from Mr Vance for the amount of $7,882. This cheque was a Sandhurst Trustees cheque drawn on the account of Mr Cutts.

67 The misappropriations from Mr Cutts' bank accounts were first discovered by Khan Birtles, an investigator with the Bendigo Bank. On 6 May 2011, Mr Birtles was alerted to unusual transactions occurring on the accounts of Mr Vance. This alert was generated by an automated monitoring system used by the bank to audit suspicious transactions. He noticed a large number of $1,000 cash withdrawals from an account in the name of EPL Vance. Further investigations revealed that Mr Vance was the financial power of attorney for Mr Cutts. Examination of Mr Cutts' accounts identified transactions inconsistent with his account profile. Mr Birtles found bank cheques being paid to car dealerships and to a funeral home. Once he believed the transactions were suspicious, he notified Austrac, who in turn notified police.

68 On 7 July 2011, detectives from Bendigo Criminal Investigation Unit commenced an investigation. It became apparent very quickly that Mr Vance had withdrawn large amounts of money from Mr Cutts' accounts.

69 Inquiries were also made with the Commonwealth Bank. Investigators were alerted that Mr Cutts had a term deposit to the value of $241,430.44 which was due to mature on 18 July 2011. It was believed that Mr Vance would try to transfer this money to another account on this date.

70 And so it was that, at 10:30 a.m. on 18 July 2011, Mr Vance attended the Commonwealth Bank in Eaglehawk. He went there to close the term deposit account and transfer the funds into another of Mr Cutts' accounts over which he had control.

71 Mr Vance was arrested. Police found $10,000 in cash in his coat pocket. While being driven to the Bendigo Police Station, Mr Vance stated the $10,000 had been withdrawn from the bank over a period of time.

72 When initially questioned as to why he had been withdrawing money from the accounts of Mr Cutts, Mr Vance told the police that this was part of his duties as financial power of attorney. He said he had been moving Mr Cutts' money around to safeguard it and keep him in a positive financial position.

73 Mr Vance admitted he had a large amount of cash in a safe place but, at that point, would not tell the police where it was. He said he was trying to protect Mr Cutts' money from a global financial crisis. He said he had made loans to people using Mr Cutts' funds and had documentation for those loans. He also said he had purchased property on behalf of Mr Cutts.

74 When told that a search warrant would be executed at his workplace, Mr Vance said that Mr Cutts' file was not there, but he refused to state where it was. He said, "I can exonerate myself when I face the court." He further stated that he had used Mr Cutts' money lawfully and not to his own benefit. His motivation in making every withdrawal was in the best interests of Mr Cutts.

75 During a subsequent formal interview at the police station, Mr Vance made admissions to being in a solicitor-client relationship with Mr Cutts. He again stated that everything he had done was in the best interests of his client. He said he first met Mr Cutts years before when he was asked to draw his will. Throughout the interview, he referred to Mr Cutts as his client.

76 Mr Vance stated that he was asked to attend the nursing home to execute a financial power of attorney for Mr Cutts but could not remember who had requested this. He stated that he had done hundreds of powers of attorney and wills previously. He agreed that Mr Cutts had difficulty communicating at that time. Nevertheless, he explained the power of attorney process to him and satisfied himself that Mr Cutts understood. Mr Cutts struggled to sign the power of attorney, so Ms Taylor signed on his behalf.

77 He reiterated numerous times that all his dealings and actions in respect of Mr Cutts' money were in his client's best interests and that he had never used any of the funds for himself.

78 He admitted that he had hidden a large amount of money but, again, refused to assist police in locating the money. He admitted transferring funds, closing accounts and cashing in term deposits. He repeated that he did this to protect Mr Cutts from the global financial crisis. He told the police that he had not spoken to Mr Cutts after he was moved to a nursing home in Heathcote.

79 Later on the day of his arrest, a search warrant was executed at Mr Vance's home address. He showed police to his shed and opened a sliding door. A utility was reversed out. Mr Vance then scraped away an area of dirt floor which exposed a safe buried in the ground. He opened the safe. Inside was $340,150 in cash.

80 Subsequently, police searched Mr Vance's home and his car. In the boot of the car police found a plastic tub containing a number of manila folders bearing Mr Cutts' name. Police also searched his business premises and seized various items.

81 After the searches, Mr Vance was taken back to the police station, where the interview was completed. He admitted that he lent money to females to purchase cars. He said he had written loan contracts for those loans. He also told the police that those loan agreements provided for a rate of interest to be paid.

82 He said he had purchased properties on behalf of Mr Cutts, including 331 Eaglehawk Road in California Gully, and that he paid rent to Mr Cutts. He refused to explain how this was done or to show any documentation about this.

83 Mr Vance was released. Police continued their investigations.

84 On 28 July 2011, solicitor Steven Sapountis was appointed manager of the trust property of Legal Help Lawyers. Trust account inspector Ron Pata was employed to conduct a financial analysis of all the accounts of Mr Cutts, Mr Vance and Legal Help Lawyers. The results of this analysis confirmed Mr Vance had removed $1,234,008 from the accounts of Mr Cutts. Money was either withdrawn directly from Mr Cutts' accounts as cash or by way of bank cheques. Other money was transferred to Mr Vance's accounts and then spent on his own expenses. The breakdown of funds removed from Mr Cutts' accounts is as follows:

• $749,408 from the Bendigo Bank retirement account;

• $103,000 from the Bendigo Bank term deposit account;

• $357,600 from the Westpac cash management account;

• $9,000 from the Commonwealth Bank streamline account; and

• $15,000 from the Commonwealth Bank pension security account.

85 The analysis also showed that Mr Vance withdrew $667,170 in cash from Mr Cutts' accounts. The cash was withdrawn either directly from Mr Cutts' accounts or from an account in Mr Vance's name after he had transferred funds into the account from one of Mr Cutts' accounts. Mr Vance withdrew $130,000 in cash in four large transactions, with the remaining cash being withdrawn in 544 separate transactions. The vast majority of those smaller withdrawals were for amounts of $1,000 withdrawn at ATMs.

87 On 28 February 2013, Mr Vance was re-interviewed at the Beenleigh CIB office in Queensland. (He had relocated to Queensland in November 2012.)

88 During this second interview, Mr Vance was asked further questions about the power of attorney document. On this occasion, he said that both Leah Jenkins and Tabitha O'Shea had attended with him at the nursing home on 30 September 2009 and witnessed the signing of the document. When he was informed all persons involved had made statements stating the signatures on the document were false and that they were not present when it was signed, he told police that those witnesses were not telling the truth. He maintained he had done nothing wrong and further stated that he had been paying rent in cash to Mr Cutts.

89 In relation to the buying of real estate, he said that John Xerxes was an associate of Mr Cutts and that they had an agreement to put the house at 331 Eaglehawk Road in his name. He said he had spoken with Mr Xerxes on the telephone.

90 In relation to the cars, Mr Vance said that, when visiting him at the nursing home, Mr Cutts told him to use some of his money on females who were single mothers. Mr Vance denied trying to have a relationship with any of them.

91 He said the payment for his father's funeral was a contra item. Mr Cutts owed him money for legal services, so he took the payment as a contra item.

92 Throughout the interview, Mr Vance did not deny withdrawing funds from Mr Cutts' accounts but claimed he did so on instructions or for the benefit of Mr Cutts.

Summary of prosecution case - Second indictment - Estate of Mrs Doyle

93 I turn now to a summary of the prosecution case on the second indictment.

94 On 9 November 2007, Anne Jane Doyle asked Mr Vance to complete her last will and testament, and appointed him as the executor of her will and as the trustee of her estate.

95 Mrs Doyle died on 3 May 2009, aged 84. Her eldest son Joseph Doyle subsequently contacted Mr Vance to inform him of his mother's passing. Mr Vance advised him to collect all the relevant documents and deliver them to him, which he did. Mrs Doyle's family then waited for Mr Vance to complete probate and finalize their mother's financial affairs. After a period of time, the family became frustrated with Mr Vance, as he did not return their calls or messages.

96 On 29 June 2010, Mrs Doyle's daughter Geraldine Fraser filed a complaint with the Legal Services Commissioner in relation Mr Vance's handling of her mother's affairs and in particular his failure to finalize her estate in a timely manner.

97 On 10 and 11 November 2010, Aruna Colombathantri, an inspector from the Law Institute of Victoria, visited Mr Vance at his law practice and inspected the file regarding Mrs Doyle's estate. The estate was not complete. Mr Vance was asked to provide a statement of account, which he did not produce until 21 July 2011.

98 On 28 July 2011, solicitor Steven Sapountis was also appointed manager of Mr Vance's law practice. The police requested him to locate the file relating to Mrs Doyle's estate and secure it pending investigation.

99 A further examination of the matter was later completed by trust account inspector Ron Pata. Investigations by Mr Pata revealed Mr Vance was the sole executor of the Mrs Doyle's will. Probate was applied for on 29 March 2010 and was granted on the 9 April 2010.

100 Mr Vance completed a trust ledger account detailing incomings and outgoings from Mrs Doyle's estate between 2 March 2010 and 22 July 2011. The estate consisted of approximately $76,985 in cash, bank deposits and bonds, as well as the family home valued at $210,000.

Charge 2: Having a trust account deficiency of $14,754.26

101 On 26 May 2010, the Bendigo Bank forwarded a cheque to Mr Vance in the sum of $14,754.26, being for the closure of Mrs Doyle's cash management account and a term deposit account.

102 This cheque was deposited by Mr Vance into his practice's office account. Mr Vance did not enter the cheque into the trust ledger account. Under the provisions of the Legal Profession Act 2004 (Vic), Mr Vance was required to enter the receipt of those funds into his trust account for the estate of Mrs Doyle. His failure to do so resulted in a total unrestored deficiency in the trust account of $14,754.26.

103 An interim tax invoice for work done on the estate of Mrs Doyle was located on the file by investigators. The invoice was for $14,754.26 and was dated 19 May 2010.

104 Also on the file was a final tax invoice for work performed for applying for probate and administering the estate. The final tax invoice was for the amount of $15,414.49 and was dated 22 July 2011. According to the trust ledger, Mr Vance paid his firm $14,122 to cover the final tax invoice. After payment of those costs, there was a nil balance in the trust account in relation to the estate of Mrs Doyle.

105 In total, Mr Vance paid himself $28,876.26 from the estate to cover his firm's legal costs for applying for probate and administering the estate.

106 On 5 September 2011, the Law Institute of Victoria Legal Costing Department conducted a review of the file in this matter. They costed the professional costs for the estate to be no more than $6,971.40.

107 On 12 August 2011, the Law Institute of Victoria handed police a copy of the file concerning Mrs Doyle's estate. Inside this file was a copy of the probate jurisdiction form for the will of Mrs Doyle. The copy was purportedly certified as being a true copy of the original document by Tabitha O'Shea. Ms O'Shea is a qualified solicitor who worked for Mr Vance from about August 2007 to January 2009. She was not working for him at the time he applied for probate and it is not her signature on the document. Mr Vance had forwarded the falsely certified document to the Bendigo Bank when requesting the bank to transfer funds from Mrs Doyle's accounts into the Legal Help Lawyers account.

108 When police interviewed Mr Vance in Queensland on 28 February 2013 in respect of matters concerning Mr Cutts, they also interviewed him about the estate of Mrs Doyle.

109 Mr Vance was adamant he had done nothing wrong. He said he completed a large amount of work on the file concerning Mrs Doyle's estate and that he was owed every cent of the money he took. He denied the $14,754.26 needed to be recorded in the trust account. He believed he could pay the cheque straight into his firm's office account.

110 He said that, if Ms O'Shea's signature appeared on the relevant documents, then it was her signature and she was present when her signature was placed on it. When it was put to him that Ms O'Shea was not working for him at the time, he said that he was unable to say without looking at employment records.

111 I turn now to a brief summary of some parts of Mr Vance's evidence on the plea.

Forging signatures on power of attorney and deceiving banks with same

112 Mr Vance accepted that, after Ms Taylor signed the power of attorney and therefore could not be a witness, he should have started again and assembled the necessary witnesses. But he did not do so because he considered time to be of the essence. He believed he was "giving effect to the client's wishes ... because ... there was a degree of urgency regarding getting it down before Mr Cutts lost his mental capacity".[3]

113 Throughout the plea, Mr Vance maintained that, at the time he forged the signatures on the power of attorney, he was unaware of the extent of Mr Cutts' wealth and that he believed the estate to be worth around $800,000.[4]

114 He accepted that he was a "bad lawyer" and that he should be "condemned" and "punished" for forging the signatures and using the document to deceive the banks.[5] But he maintained that at all times he was acting in accordance with his client's instructions or in what he believed to be his best interests.

115 Mr Vance said that he had begun to stockpile cash following the global financial crisis ("GFC") in 2009. He was concerned that Australian banks had not guaranteed their funds and was stockpiling Mr Cutts' money to avert any difficulties that might flow from the GFC, such as a run on the banks. Mr Vance had calculated, based on his own assessment of Mr Cutts' expenses, an appropriate amount to stockpile to ensure Mr Cutts could maintain his expenses for several years, should a run on the banks occur.

116 He said he took the same precaution with his own financial affairs during this time. He kept a separate safe with some of his own savings in it, buried under the house. He did not tell police about that safe, and they did not find it.

117 Mr Vance accepted he used Mr Cutts' money to purchase cars for his female employees and, in some cases, their family members. He was not sure whether he might have used his own funds for some of these purchases as well.

118 He said that, on 30 September 2009 and in discussions prior to this date, Mr Cutts gave instructions that 30 percent of his estate was to be spent assisting single mothers. Ms Taylor was out of the room at the nursing home when Mr Vance received these instructions from Mr Cutts. In relation to the discussions prior to 30 September 2009, Mr Vance was unable say with any specificity when or where they occurred. He said that, as a result of acting for him, he got to know Mr Cutts quite well and was therefore well-placed to know how he wanted his estate administered.

119 Despite Mr Cutts' instructions, Mr Vance intended the car purchases to be loans. He believed that, if the recipients of the vehicles were ever in a position to repay the loans, they should do so.[6] To this end, he prepared loan documents, though they were never signed.[7] Mr Vance was unable, however, to locate the draft loan agreements.[8]

120 Early in his submissions from the Bar table, which were later adopted as his evidence, Mr Vance denied he was romantically interested in any of his employees. He explained that some of them smoked, and that he "could never be personally interested in a relationship with a woman who smokes, because part of a relationship involves kissing".[9] Later in his evidence, however, when shown some very personal emails or diary notes suggesting a romantic interest in at least a couple of employees, I understood Mr Vance ultimately to admit that he had written those things and that he had had such feelings.

121 As to the purchases of real estate, Mr Vance maintained he bought the two properties as investments on behalf of Mr Cutts, with the intention of increasing the value of his assets.[10]

122 He said he received instructions from Mr Cutts to purchase the property in California Gully with his money, but to do so in the name of Mr Xerxes.[11] He received these instructions prior to 30 September 2009 while he was acting for Mr Cutts in relation to the sale of a property at Kangaroo Flat. It was his understanding that Mr Xerxes was an associate of Mr Cutts. At some stage prior to purchasing the property, Mr Vance received a telephone call from Mr Xerxes, who provided him with his personal details, including his address. The address Mr Xerxes gave was next door to Mr Vance's father's house. Mr Vance did not think anything of this at the time; but, he admitted, once the police drew it to his attention, he thought that it was unusual.[12]

123 Mr Vance prepared two contracts, one purchasing the property in the name of Mr Cutts and another purchasing the property in the name of Mr Xerxes. He did this because he was unsure of the correct procedure in light of his instructions. The documentation was never completed, as he simply never got around to it.[13]

124 Mr Vance said he paid rent on the property in California Gully, which he was using as his business premises, though there was no formal rental agreement. He was paying approximately $200 per week, and in the form of cash. He paid the money into the safe containing cash he maintained for Mr Cutts.[14] He believed he recorded the rental payments, though his memory is hazy and he has been unable to find the records.[15]

125 Mr Vance said the plan with the purchase of the block was to build something on it as an investment for Mr Cutts.[16]

126 When regard is had to the fact that about $1.2 million was removed from Mr Cutts' accounts, and that about $300,000 was spent on the two properties, $340,000 in cash was recovered and another $130,000 or more was spent on cars, then over $400,000 is unaccounted for. Mr Vance could not explain where that money was spent. He said he does not have it.[17]

127 As to the estate of Mrs Doyle, at the time he paid the cheque for $14,754.26 into his office account, he believed he was allowed to do so. He did not believe it had to go into a trust account first. (He now accepts that he was wrong about that.)

128 He also said he was entitled to the money as payment for costs. The estate of Mrs Doyle was very difficult for him to administer. He spent a lot of time speaking to members of Mrs Doyle's family. His costs, therefore, were legitimate. He did not keep accurate records of the time he spent working on the file,[18] and therefore an accurate picture of the work he did could not be obtained by the Law Institute.

129 When it was pointed out that the interim invoice purportedly written on 19 May 2010 precisely matched the balance left in Mrs Doyle's account, even allowing for interest and charges calculated as at 26 May, which was when the account was closed and the cheque was forwarded to his firm, Mr Vance suggested that he could have worked out that precise figure in advance by calculating the interest and charges. When pressed on the matter, he said he could not remember whether he did that calculation at the time.

130 I turn now to my findings on the disputed facts. In coming to these views, I have had regard to the summaries provided by the Director, the evidence in the depositions, the sworn evidence of Mr Vance and the submissions of the parties.

131 First, I do not accept major aspects of Mr Vance's evidence on the disputed facts. In particular, I do not accept that Mr Cutts gave him instructions to give 30 percent of his wealth to single mothers or that he was storing $340,000 of Mr Cutts' cash under the floor of his shed for fear of a run on the banks in the wake of the GFC. Nor do I accept that the shadowy Mr Xerxes even exists, let alone that Mr Cutts gave any instructions about putting property in the name of such a person. All of that is just nonsense. In fact, I am satisfied beyond reasonable doubt that none of those claims are true.

132 Secondly, instead, the truth of the matter is this: While I accept that Mr Cutts wanted Mr Vance to be his financial power of attorney and that he had no intention of abusing his client's trust at the time he bungled the execution of that document, I am satisfied, beyond reasonable doubt, that at some later point Mr Vance's thoughts turned sinister. For, within the next month, he chose to forge signatures on the power of attorney, and then send it to all and sundry, and to use it dishonestly to deceive financial institutions into allowing him free reign over Mr Cutts' accounts. That, in turn, allowed him access to Mr Cutts' funds, which, within months, he began withdrawing by one method or another.

133 Thirdly, I am satisfied, beyond reasonable doubt, that Mr Vance then used those funds largely for his own purposes. In particular, he used those funds in a sad attempt to buy the affection of others, by splurging on cars and gifts for employees, to the tune of around $130,000 or more. He must have kept at least some of the $340,000 cash stockpile for his own purposes, whether that be spending on more cars for employees or for other things. I have no doubt that a large proportion of it would have been spent, and not for the benefit of Mr Cutts, had the offending gone unchecked. That Mr Vance cannot account for over $400,000 of the money spent is troubling. I expect we shall never know where it all went.

134 Fourthly, however, I am not satisfied beyond reasonable doubt that he bought the two properties for his own purposes. That he had a contract in the name of Mr Cutts for the purchase of the California Gully property, and a transfer of land in the name of Mr Cutts for the block, is enough to make me doubt a sinister intention from the off. Rather, he may well have thought that those properties were good investments for Mr Cutts, and he may well have felt some obligation to act in his client's interests. At the same time, his decisions to invent Mr Xerxes, create documents in his name and put utilities in his name all suggest that Mr Vance was toying with some dishonest idea. But only goodness knows where that would have ended. Further, I reject Mr Vance's evidence that he paid rent to Mr Cutts. He paid none.

135 Fifthly, while Mr Vance's evidence as to the estate of Mrs Doyle was largely unsatisfactory as well, given the gaps in his legal knowledge demonstrated in evidence before me, I readily accept that he believed he was entitled to pay the cheque straight into his office account. Further, while I reject his evidence concerning the raising of the interim invoice - obviously, he created it after the fact to match the amount of funds represented by the cheque in a bungled attempt to justify his fees - I cannot exclude the reasonable possibility that he believed he was entitled to those funds.

136 Mr Brown tendered a victim impact statement declared by Mrs Doyle's daughter Geraldine Fraser.

137 Mr Vance objected to the tender on the basis that Ms Fraser could not be a "victim" within the meaning of that term in the Sentencing Act 1991 (Vic). This, he submitted, was because Ms Fraser could not have suffered any "injury, loss or damage (including grief, distress, trauma or other significant adverse effect) as a direct result of the offence" when he was entitled to the fees he charged.

138 I do not accept that submission. Ms Fraser was a beneficiary under the will. She had an interest in seeing her mother's estate administered properly. To know that Mr Vance used a forged document to obtain funds from her mother's account, and to know that they were then paid directly to him rather than into a trust account, as required by law, is capable of directly causing grief or distress in Ms Fraser. Accordingly, irrespective of whether Mr Vance was entitled to the money, I shall admit her victim impact statement into evidence. Further, there was a deficiency of over $14,000 in the trust account. Whether or not Mr Vance believed he was entitled to those funds, the crime was in the unlawful deficiency. To someone in Ms Fraser's position, that would be enough to cause grief or distress.

139 As it happens, Ms Fraser does speak in her statement of Mr Vance "help[ing] himself to almost $30,000 of mum's money" and of sleepless nights, anger and tears over this matter.

140 I accept Ms Fraser's account and I have taken it into consideration when sentencing Mr Vance.

141 I turn now to the nature and gravity of the offences.

142 The offences charged in this case carry substantial maximum penalties. Subject to a point I will make shortly, the offences of making a false document, obtaining property by deception, obtaining financial advantage by deception and using a false document charged in this case all carry a maximum penalty of ten years' imprisonment. The offence of having a deficiency in a trust account carries a maximum penalty of 15 years' imprisonment.

143 The proviso I just foreshadowed is that the offences of obtaining property by deception or obtaining financial advantage by deception charged in Charges 8, 10, 11 and 14 on the first indictment carry a maximum penalty of 20 years' imprisonment. This is because each of those offences concerned at least one transaction involving $50,000 or more, and is thereby a "continuing criminal enterprise" ("CCE") offence. This, in turn, means that Mr Vance must be sentenced as a CCE offender in respect of those four offences. Those sentenced as CCE offenders for CCE offences are liable to a maximum penalty twice the length of the maximum penalty prescribed for the offence, or 25 years, whichever is the lesser.[19]

144 Mr Vance submitted that, since the events giving rise to the CCE offences are all part of the one episode of offending, the CCE provisions should not apply. While I reject that submission, I do not consider that the doubling of the maximum penalty for those particular offences should have the effect of doubling the individual sentences for those offences. Nor, in the end, should it result in any greater total effective sentence in this case. The fact is that, even without resort to the CCE provisions, there is sufficient scope provided by the standard maximum penalties and the principle of totality to fashion individual sentences and a total effective sentence that adequately reflect the individual and overall criminality in this case.

145 One factor that makes the deceptions relatively serious is the large amount of money involved. Over $1.2 million of Mr Cutts' money was misappropriated. Happily, the value of the properties (which was roughly $300,000) has been recovered; and so too the $340,150 in cash. But much remains missing.

146 Further, Mr Vance's offending in respect of Mr Cutts was protracted and repeated. The signatures must have been falsified in early-October 2009, given that the forged documents were sent to banks in that month. The last deceptions were in July 2011. Thus, the total period of the offending spanned 21 months. The obtaining of funds appears to have commenced in early-2010, so that behaviour carried on for over 18 months. Thus, there was plenty of time to think twice and cease. But on it went. And on. The offences involved hundreds of transactions.

147 As I said earlier, I am satisfied that Mr Vance used a substantial proportion of the funds for his own purposes. Spending an infirm and elderly client's money, dishonestly obtained, in an attempt to buy the affections of employees qualifies as thoroughly disgraceful behaviour by a solicitor. It may have been nice for those who got the cars. But it was not Mr Vance's money to give. The stockpiling of the cash is more difficult to assess because it was not spent, albeit I think a large part of it would have gone sooner or later. And, as I have already said, while the purchases of the properties should not have happened, I am not satisfied that Mr Vance bought them for his own purposes. That said, he did use one property as if it were his own, and did not even pay rent - which was pretty miserable.

148 The seriousness of the making of the false document is lessened by the fact that Mr Cutts wanted Mr Vance to be his attorney. But it is still a breach of trust, and very deceptive, to forge the signatures of others on such an important document.

149 The most serious aspect of the deceptions is that they involved a gross breach of trust. Mr Vance's duty, as a solicitor, was to act in his client's interests. Instead, he acted largely against Mr Cutts' interests and largely for his own. The community should have the utmost confidence that every solicitor will act in his or her client's interests. Mr Vance's behaviour is calculated to erode that confidence.

150 Had the making of the false document occurred in isolation, it is likely a suspended sentence would have been appropriate for that offence. But it did not occur in isolation. The deceptions followed. Collectively, I regard the deceptions as serious offending of their type that demand immediate imprisonment, even allowing for substantial factors in mitigation.

151 Given that I accept it is reasonably possible Mr Vance believed he was entitled to pay the cheque from Mrs Doyle's account into his office account and that he was entitled to the funds, the seriousness of his trust account deficiency is reduced, but not completely. Solicitors must be scrupulous about dealing with trust monies. And it must be remembered that he effectively obtained the cheque by using another forged document, albeit, one which, again, it seems, he need not have forged.

152 While there are some serious aspects to it, were the offending in respect of Mrs Doyle's estate committed in isolation, I think that a suspended sentence would have been open. But, again, it was not committed in isolation.

154 First, while Mr Vance mostly protested his innocence when interviewed by police, he did make various admissions, including as to transferring funds, closing accounts, cashing in term deposits, buying cars, buying property and so on. Further, he directed police to the $340,150 in cash stored in a safe buried under his shed. I should have thought it unlikely the police would have found that money without Mr Vance's assistance.

155 Secondly, Mr Vance pleaded guilty. Those pleas came on the first day of the proposed trial - i.e. at a relatively late stage. That said, in pre-trial discussions before me, Mr Vance indicated he was prepared to discuss settlement of the matter with the Director. He also filed, but then withdrew, an application for a sentence indication. Ultimately, in the week before the trial was due to commence, Mr Vance indicated to the Director that he would plead guilty.

156 The utilitarian benefit of the pleas of guilty is very substantial. It was apparent in pre-trial discussions, and became even clearer on the plea, that the pleas of guilty have avoided what would have been a rather long trial on the first indictment and another, albeit shorter, trial on the second indictment.

157 While a committal hearing was conducted, it was very brief (it ran for perhaps an hour or so). Only the informant, Detective Mark Crossley, was required for cross-examination. Thus, not only has the cost of a trial been avoided, but no witnesses (other than the informant) have been required to give evidence in the Magistrates' Court and none at all were required in this Court. This is a particularly significant consideration given the nature of the allegations made by some of Mr Vance's female employees.

158 Thirdly, while I am satisfied that Mr Vance is remorseful for some aspects of his offending, I do not find he is remorseful for other aspects. His pleas of guilty are some evidence of remorse generally. Having observed him give evidence on the plea, I also find that he now accepts he was wrong to forge the signatures on the power of attorney and to use a certified copy to deceive the banks into allowing him to access Mr Cutts' accounts. As indicated earlier, contrary to his original stance, he ultimately admitted in evidence that he was romantically interested in two of his employees. But I am not satisfied he is remorseful for using at least some of Mr Cutts' funds for his own purposes, because he maintained in evidence before me that he was acting on his client's instructions, which evidence, I have already indicated, I reject.

159 Nevertheless, for the reasons I have given, I still regard Mr Vance's admissions and assistance to the authorities, his pleas of guilty and such remorse as there is as being collectively of quite significant weight in mitigation.

Prior good character and absence of prior convictions

160 The fourth matter in mitigation is this: Mr Vance, at age 53, has no criminal history. Further, after a couple of unsuccessful attempts at studying economics at university, Mr Vance worked in various occupations, including as a minister of religion in Hobart for some years. Ultimately, he decided to study law at a relatively late stage of life, which he did by correspondence with an interstate university. After gaining admission and working for other firms for a time, he set up his own practice in Bendigo, where he has been since 2004. As I noted earlier, Mr Vance described himself as a "bad lawyer". Nevertheless, it seems he has given good service to many clients, and employed several people, over a considerable period. So much is apparent from the reference I received from Andrew Stubs, who has known Mr Vance for 30 years and who worked for him briefly in 2006-2007.

161 While it is often said that prior good character generally carries less weight in offences of this nature,[20] in my view, it is of some considerable significance that Mr Vance is to be sentenced as a person of previously unblemished character and who has made significant contributions to the lives of others.

162 Fifthly, in my view, Mr Vance has excellent prospects of rehabilitation. There are several reasons:

163 First, his plea of guilty, lack of prior convictions and previous good character all point in that direction.

164 Secondly, those same matters, coupled with the experience he has had of the criminal justice system, including the humiliation of having his crimes and his personal life exposed for all to see and the deprivation of his liberty in police cells, satisfy me that Mr Vance is unlikely to reoffend.

165 Thirdly, I am satisfied that Mr Vance will make the best of prison and of his life upon his release. His life was in disarray at the time of the offending. His marriage was breaking down. He was struggling to keep up with his practice. But, as Mr Vance told me in evidence, he has had the good fortune to meet another woman, and is now happily married and hopeful of having children. He has worked in various occupations since his practice was closed, including in a sausage factory, a bread factory, in internet marketing and with computers. He has tried to educate himself in many ways. He is hopeful of travelling with his wife to Ghana, whence she hails, and perhaps making a life there. In short, he is determined to make a go of things. And I think he will.

166 Finally, I am also satisfied that Mr Vance's pleas of guilty signify his acceptance of responsibility and, in turn, an excellent chance of rehabilitation. True it is that I have found against him on some of the disputed facts. But, when delivering his plea in mitigation, one of the last things Mr Vance said was this:[21]

But I would say if that turns out to be the case [i.e. if he is sent to gaol], then I will accept it because I'm the one that put myself in this situation and I have to bear responsibility and I have to bear the punishment. If I end up in gaol, then I will hope that the experience will be a useful one and that some good will come out of that, too.

167 Those remarks struck a chord with me. They auger well for Mr Vance's future.

168 The sixth matter in mitigation is the delay between the initial arrest and his being charged. Police arrested Mr Vance on 18 July 2011. He was released without charge. Over 19 months later, he was interviewed again, in Queensland, on 28 February 2013. He was then charged and extradited to Victoria. Now, here we are a further 19 months later.

169 The delay of 19 months between the initial arrest and charging is very substantial. The further 19 months between charging and sentence is a little long, but is not out of the ordinary. I accept that, between the initial detection and charging, the police had a good deal of work to do to investigate the matter fully. There is no criticism of them. On the contrary, the diligence of the bank, and then the police and the Law Institute, has ensured that Mr Vance's criminality has been detected and exposed thoroughly and properly.

170 But the delay still operates in mitigation in two broad ways. First, there is the strain of having matters with an uncertain outcome hanging over Mr Vance's head for that additional 19 months. I accept that Mr Vance has found the whole period, not just the first 19 months, very difficult.

171 Secondly, there is the effect on rehabilitation. Mr Vance has used the delay very wisely. After losing his practice, he has worked hard in other occupations and at further education. He has moved interstate and started a new life with his new wife. He has kept his bail conditions and has not offended in the interim. He has no outstanding charges.

172 I consider the delay, particularly between the initial arrest and charging, to be a mitigating factor of significance.

173 Finally, there is the fact that Mr Vance, for all intents and purposes, has lost his career in the law. He has not practised since these matters came to light. Shortly, I will make an order that his name be removed from the roll of legal practitioners kept by this Court. I cannot envisage that Mr Vance will ever be allowed to engage in legal practice in this State again.

174 That said, the fact that Mr Vance's legal career is now lost, though relevant, is of little significance when the offences which caused that loss themselves constitute a breach of trust by him as a solicitor.[22] I should add that Mr Vance said on the plea that he had no intention of practising law again.

175 Section 5(3) of the Sentencing Act provides that a court must not impose a sentence that is more severe than that which is necessary to achieve the purpose or purposes for which the sentence is imposed. Section 5(4) provides that a court must not impose a sentence that involves confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a sentence that does not involve the confinement of the offender. These provisions reflect the common law principle of parsimony. I have applied those principles when fixing sentence.

General deterrence, denunciation and just punishment

176 In my view, general deterrence, just punishment and denunciation are important considerations when sentencing for offences of this nature. Other legal practitioners, and the community in general, should understand that offending of type engaged in by Mr Vance will result in stern and just punishment. All should also know that this Court will denounce such behaviour. And I do. It is a very sad day for the legal profession when one of its number behaves as Mr Vance did. Such behaviour can only damage the confidence the community otherwise should have in the profession. It is essential that the community should know that such conduct will not be tolerated by the courts.

Specific deterrence and protection of the community

177 Given Mr Vance's pleas of guilty, previous good character and prospects of rehabilitation, the fact that he will not be permitted to be a legal practitioner for the foreseeable future and my conclusion that he is unlikely to reoffend, I consider that the sentencing purposes of specific deterrence and protection of the community are of only very modest significance in the present case.

178 In my view, rehabilitation remains an important consideration. This is particularly so because Mr Vance's prospects of rehabilitation are so strong. A sentence which incorporates the purposes of deterrence, punishment and denunciation, but which also recognizes the importance of rehabilitation, and which is designed to encourage further reform, is the preferable outcome, because it will redound to the benefit of the community if Mr Vance is rehabilitated.

179 Shortly, I shall say more about rehabilitation when discussing the appropriate non-parole period.

180 Mr Brown provided the Court with a table of sentences imposed in several cases involving fraudulent behaviour by solicitors. Where available, I have read the reasons for sentence in the cases listed in the table. I have considered the sentences imposed, and reasons for their being imposed, in other similar cases as well.

181 It is almost always difficult usefully to compare sentences imposed in other cases. No two cases are ever truly alike. And, in any event, sentences are not precedents to be applied or distinguished. Nevertheless, I have found these sentences, and the reasons given for imposing them, instructive in gauging the order of sentence imposed for offences of this nature, and the extent to which those sentences tend to be affected by various aggravating and mitigating factors.

182 In the end, however, because of the limits of that process, I have been driven to rely principally on the particular circumstances of this case and sentencing principles to arrive at the appropriate sentence.

183 Mr Vance submitted that, if I accepted his evidence on the disputed facts, it was open to impose a wholly suspended sentence. Otherwise, he did not put any submission on the order of sentence if I were against him on that score.

184 Mr Brown submitted that, while a suspended sentence was open at law, it was not open on the facts, as the offending was too serious. He submitted that the only appropriate sentence was an immediate term of imprisonment.

186 At the conclusion of the plea, I advised the parties that I had come to the view that the only appropriate sentence was an immediate term of imprisonment. Despite that view, I allowed Mr Vance to remain on bail until sentence so that he might order his affairs accordingly.

188 Balancing all matters as best I can, on the offences charged in the first indictment (No. D106099640.4), which concerns Mr Cutts, Mr Vance is convicted and sentenced to the following terms of imprisonment:

Charge 2 (obtaining eight bank cheques totalling $83,630)

Charge 4 (obtaining two bank cheques totalling $34,499)

Charge 5 (obtaining two bank cheques totalling $30,000)

Charge 8 (obtaining two bank cheques totalling $209,095.56)

Charge 9 (obtaining a financial advantage of $40,000)

Charge 10 (obtaining four bank cheques totalling $79,341.70)

Charge 11 (obtaining a financial advantage of $103,000.14)

Charge 14 (obtaining a financial advantage of $190,000)

Charge 15 (obtaining three bank cheques totalling $41,482)

189 On the offences charged in the second indictment (No. D106099640.3), which concerns the estate of Mrs Doyle, Mr Vance is convicted and sentenced to the following terms of imprisonment:

Charge 2 (having a trust account deficiency of $14,754.26)

190 I direct that one month of each sentence for the offences in Charges 1, 2, 4, 5, 6, 8, 9, 10 and 15 of the first indictment and Charges 1 and 2 of the second indictment, three months of the sentence for the offence in Charge 11 on the first indictment and four months of the sentence for the offence in Charge 14 on the first indictment be served cumulatively upon the sentence for the offence in Charge 7 of the first indictment, and upon each other. The sentences for the offences in Charges 3, 12 and 13 of the first indictment are to be served concurrently with each other and with all other sentences.

191 That makes a total effective sentence of four years and six months' imprisonment.

192 I fix a non-parole period of two years and three months.

193 Although the potential parole period is not long in absolute terms, the non-parole period is relatively short when compared with the head sentence. While all mitigating factors affect both the head sentence and the non-parole period, some can have especial weight in fixing the non-parole period. Mr Vance's strong prospects of rehabilitation, and the strain of delay and his use of that period, his previous good character and his pleas of guilty, have moved me to fix this particular non-parole period.

194 Pursuant to s 18 of the Sentencing Act, I declare that six days of pre-sentence detention (including today) are to be reckoned as already served under the sentence.

195 Pursuant to s 6J of the Sentencing Act, I record that Mr Vance has been sentenced as a CCE offender in respect of the CCE offences charged in Charges 8, 10, 11 and 14 on the first indictment.

Section 6AAA of the Sentencing Act

196 Section 6AAA of the Sentencing Act requires that I must state the total effective sentence and non-parole period I would have imposed but for the pleas of guilty. That is a difficult task given the interaction between pleas of guilty and other mitigating factors, and the nature of the intuitive synthesis of all relevant matters in arriving at a sentence. Nevertheless, I can declare that, but for Mr Vance's pleas of guilty, I would have imposed a sentence in the order of six years' imprisonment with a non-parole period in the order of four years.

197 Mr Brown made application for four ancillary orders, two of which Mr Vance opposed.

198 First, Mr Brown applied for an order, pursuant to s 464ZF(2) of the Crimes Act, that Mr Vance undergo a forensic procedure for the taking of forensic sample. Mr Vance did not oppose the application. Such an order may be made only if an offender is found guilty of a "forensic sample offence". From 1 July 2014, the definition of a forensic sample offence was amended to include "any indictable offence". The offences to which Mr Vance pleaded guilty are all indictable offences. Given the seriousness of the circumstances of the offending, Mr Vance's consent and the public interest in making such an order, I am satisfied that the order should be made.

199 Secondly, Mr Brown applied for an order, pursuant to s 84(1)(c) of the Sentencing Act, that the Chief Commissioner of Police pay the sum of $350,150 to State Trustees (acting on behalf of the estate of Mr Cutts). This amount comprises the $340,150 in cash seized by police from Mr Vance's safe and the $10,000 seized from his person at his arrest on 18 July 2011.

200 As I understood him, Mr Vance did not oppose the making of the order concerning the monies in the safe but did object to the payment of the $10,000 found on his person, which he claimed was his own money won at the casino.

201 I do not accept Mr Vance's evidence that the $10,000 was his money. Rather, I am satisfied that that money was part of Mr Cutts' funds.

202 Accordingly, I shall make the order in the amount sought.

203 Thirdly, Mr Brown sought an order, pursuant to s 86(1) of the Sentencing Act, that Mr Vance pay to the Legal Services Board (on behalf of the estate of Mrs Doyle) compensation in the amount of $14,754.26.

204 Section 86(1) provides inter alia that, if a court finds a person guilty of an offence, it may order the offender to pay a person who has suffered loss of property as a result of the offence any compensation (not exceeding the value of the property lost) that the court thinks fit.

205 While I accept, as I must, that there was a deficiency in his trust account, I have also indicated that I cannot exclude the reasonable possibility that Mr Vance believed he was, and was in fact, entitled to those funds. In those circumstances, I do not believe it is open to me to make the order.

206 Further, even if I am wrong in that view, I would decline to make the order on discretionary grounds. Section 86(1) uses the permissive "may", which imports a discretion. If there is, and it seems there is, a dispute about the amount of funds to which Mr Vance was entitled for his work on the estate of Mrs Doyle, that is not a matter appropriate for me to resolve on an application of this nature. I understand that the Legal Services Board have paid compensation of some description to Mrs Doyle's estate. The Board can pursue Mr Vance in the appropriate civil forum if it is desired.

207 Fourthly, Mr Brown sought an order, pursuant to s 86(1) of the Sentencing Act, that Mr Vance pay to State Trustees (acting on behalf of the estate of Mr Cutts) compensation in the amount of $589,061.14. This amount, it is said, represents the balance of the funds taken from Mr Cutts' accounts that have not been recovered.

208 Initially, Mr Vance objected to such an order because he was concerned there may be some double counting. As I understood him, he did not maintain that particular basis for objecting to the order. However, he did maintain his objection to the order on the basis that he did not have the means to pay the amount sought.

209 Section 86(2) provides that, "[i]f a court decides to make an order under subsection (1), it may in determining the amount and method of payment of the compensation take into account, so far as practicable, the financial circumstances of the offender and the nature of the burden the payment will impose".

210 I accept Mr Vance's evidence that he has very little in the way of assets. While I also accept that he is the type who will find paid employment of some description upon his release from gaol, I think it is unlikely that he will be able to pay off a debt of over $500,000 given he will also be trying to re-establish his life upon release. There is also the concern that being fixed with such a burden may hinder his chances of reform.

211 On the other hand, as Mr Brown said, while there may be little prospect of any substantial recovery of the funds, Mr Vance may be lucky enough to win a lottery and would then be well able to repay the funds.

212 In my view, the order for compensation should be made, and in the full amount. I do not think that the consequent burden that may be imposed on Mr Vance would be unfair or so great as to interfere with his rehabilitation. Mr Vance owes the estate of Mr Cutts the money. If he is lucky enough to come into sufficient funds to meet the debt, the estate should have the chance to share in that good fortune too.

Application to strike Mr Vance's name from the roll of legal practitioners

213 I turn now to the application by the Legal Services Commissioner ("LSC") to have Mr Vance's name struck off the roll of legal practitioners.

214 While Mr Vance does not oppose the application, the exercise of the Court's inherent jurisdiction to make such an order requires my independent consideration as to whether such an order should be made.

215 Ms Hannon, who appeared on behalf of the LSC, provided written and oral submissions as to why such an order would be appropriate. In short, she submitted there were eight reasons why that was so. First, Mr Vance committed the offences during the course of his legal practice. Secondly, the offences were serious and involved dishonesty. Thirdly, the sums of money involved were substantial. Fourthly, the conduct was deliberate, repeated and protracted. Fifthly, the conduct only ceased when discovered. Sixthly, while Mr Vance made some admissions, he denied several aspects which, subject to my findings, he ought to have admitted. (As it happened, I did find most of those facts against him.) Seventhly, the offences carry substantial maximum penalties. Eighthly, Mr Vance's poor record-keeping shows that he does not have the ability to be a solicitor.

216 In those circumstances, Ms Hannon submitted that Mr Vance's conduct represents an egregious breach of trust and is wholly incompatible with his being on the roll of practitioners. She submitted that Mr Vance's conduct shows that he is not a fit and proper person to be a legal practitioner and will likely remain so for the indefinite future.

217 I accept those submissions. As Dixon J remarked in R v Coleman [2013] VSC 548 at [34], a case with some similarities to the present:

[I]t is of the utmost importance that public confidence in the legal profession be maintained. Legal practitioners play an integral part in the administration of justice. [Mr Coleman's] obligation included a duty to uphold the law, a duty to this Court, a duty to [his] clients and, more generally, to members of the public. High standards are demanded from legal practitioners and [his] conduct in committing these offences, particularly their character of dishonesty, established that [he is] not a fit and proper person of sufficient moral integrity and rectitude of character to be accredited to the public as a person who can be entrusted to perform the work of a solicitor.

218 Those remarks apply equally to Mr Vance's case.

219 While it is not determinative, I also consider it relevant that Mr Vance consents to the making of such an order.

220 For those reasons, I am satisfied that Mr Vance is not a fit and proper person to be a legal practitioner and will likely remain so for the indefinite future. Accordingly, I am satisfied that Euan Peter Lionel Vance's name should be removed from the roll of legal practitioners kept by this Court. And I shall so order.

[1] That figure includes the $6,700 spent on the car for Ms Wood, who was not an employee but a friend and former client.

[2] Paragraph 50 of the prosecution summary asserted that "[t]ransfer of land documents were not completed or filed for this purchase ...". Further, Mr Vance in evidence accepted the contents of that paragraph (T 141). But the fact is that the file contained a signed transfer of land and signed a notice of acquisition of land in respect of the block in the names of Mr Cutts and Mr and Mrs Geyer, and a receipt to Mr Cutts for the deposit monies (Depositions, pp 559-567).

[19] See ss 6H and 6I of the Sentencing Act 1991 (Vic); R v Roussety [2008] VSCA 259; (2008) 24 VR 253; Cay v The Queen (2010) 29 VR 560.

[20] See, e.g., R v Howse [2002] VSC 197 at [38] (per Flatman J).

[22] See, e.g., R v Coleman [2013] VSC 548 at [3] (Dixon J), citing R v Howse [2002] VSC 197 at [38] (per Flatman J).