IN THE COUNTY COURT OF VICTORIA
AT Melbourne
CRIMINAL DIVISION	Revised
Not Restricted
Suitable for Publication	
General List

Case No. CR-22-01897

DIRECTOR OF PUBLIC PROSECUTIONS		
		
v		
		
RICHARD HAYDEN		

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JUDGE:	HIS HONOUR JUDGE DEMPSEY	
WHERE HELD:	Melbourne	
DATE OF HEARING:	5 June 2023	
DATE OF SENTENCE:	16 June 2023	
CASE MAY BE CITED AS:	DPP v Hayden	
MEDIUM NEUTRAL CITATION:	[2023] VCC 985		

REASONS FOR SENTENCE
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Subject:	CRIMINAL LAW – Sentence.
Catchwords: 	Offences against the Estate Agents Act 1980. Plea of guilty to charges of having a deficiency in trust account x 2 and fraudulent conversion. Gross breach of trust. Significant quantiles of money converted over a significant period of time. Offender middle aged of exemplary character. Offending occurs in context of extraordinary pressures, including undiagnosed and untreated mental illness and terminal illness of wife. Early plea of guilty during pandemic. Plea accompanied by remorse. Hardship. Delay between detection and charge, the further delay between charge and sentence. Verdins considerations enlivened. 
Legislation Cited:	Estate Agents Act 1980 (Vic); Sentencing Act 1991 (Vic).
Cases Cited:	Brancatella v The Queen [2016] VSCA 94; DPP v Ngo [2018] VCC 952; DPP v Nguyen [2023] VCC 846; DPP v Bulfin [1998] 4 VR 114; R v Bartels [2018] SASCFC 34; Leimontis v The Queen [2018] VSCA 198; Ryan v The Queen (2001) 206 CLR 267; Torrefranco v The Queen [2021] VSCA 157; R v Smith (1982) 7 A Crim R 437; R v Oktugen (1982) 8 A Crim R 262; Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175; Philips v The Queen (2012) 37 VR 594; R v Merrett, Piggot and Ferrari (2007) 14 VR 392; Duncan v The Queen (1983) 9 A Crim R 354; R v Todd [1982] 2 NSWLR 517 ; R v Daetz; R v Wilson [2003] NSWCCA 216; R v Verdins (2007) 16 VR 269; Markovic v The Queen (2010) 30 VR 589; Berry v The Queen [2019] VSCA 291; Lecornu v The Queen (2012) 36 VR 382; R v Beary (2004) 11 VR 151; Boulton v The Queen (2014) VR 308.
Sentence:	Convicted and sentenced to a combination sentence of 12 months imprisonment, followed by a 2-year CCO with conditions upon release. 
	Section 6AAA – 4 years with non-parole period of 2 years 3 months.
	No PSD to declare.
	Compensation order made.

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APPEARANCES:
	Counsel	Solicitors	
For the DPP	Ruth Hamnett	Office of Public Prosecutions	
			
For the Accused	Ian Hill KC
Michael Allen	Galbally & O’Brien	

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HIS HONOUR:
INTRODUCTION 

1	Richard Hayden, you have pleaded guilty to the following charges:
Charge 1: Between 2 February 2018 and 4 September 2018, there was a deficiency of money in a trust account ($485,749.00), contrary to s 90(1) of the Estate Agents Act 1980 (Maximum penalty: 2 years imprisonment or 100 penalty units.)
Charge 2: On 12 March 2019, there was a deficiency of money in a trust account ($962,433.50), contrary to s 90(1) of the Estate Agents Act 1980 (Maximum penalty: 2 years imprisonment or 100 penalty units).
Charge 3: Between 14 January 2018 and 25 January 2019, you fraudulently converted to his own use monies received or held on behalf of persons in respect of transactions in your capacity as estate agent ($776,976.65), contrary to s 91(1)((a)(i) of the Estate Agents Act 1980 (Maximum penalty: 10 years imprisonment or 500 penalty units.)
2	These offences against the Estate Agents Act 1980 (the Act) represent a significant breach of trust.  Over a long period of time, you used a substantial amount of money that was held on trust on behalf of others for your own purposes. 
3	The pressures on you, and your own fragility borne as it was out of poor mental health and personal tragedy inform your culpability for these crimes.  It is no co‑incidence that you, as a mature offender with an otherwise unblemished character, offended in the way you did at the time you did, as your wife of twenty years was dying of terminal cancer.
4	For reasons that relate to this tragedy, along with other powerful matters in mitigation, the sentence in this case will be less severe than it may be in other instances of this type of dishonesty. 
5	It was submitted by your Counsel Mr Hill KC (with whom Mr Allen appeared) that in this case a term of imprisonment followed by a Community Corrections Order (CCO) was the appropriate penalty.  Having considered the matter carefully (and having been apprised of the plea material in this case) Ms Hamnet on behalf of the Director of Public Prosecutions accepted that such a sentence was open to me to impose. 
6	I wish to note now the quality of assistance I was given by all Counsel in this case.  The submissions made by both parties (both written and orally) were thorough, considered, clearly expressed and of the highest standard. I am extremely grateful to Counsel. 
7	I am going to sentence you Mr Hayden to a term of imprisonment to be served immediately, followed by a CCO with conditions. 
8	The duration of both the term of imprisonment and the CCO (as well as the conditions that accompany the latter), and my reasons for imposing such a sentence follow.
OFFENDING 
9	The full particulars of the offending are set out in the Summary of Prosecution Opening (SPO) and relevant annexures.  I will summarise the pertinent facts but make it clear that I sentence you on the totality of the conduct outlined in the SPO. 
10	You were a real estate agent, operating the family business Hayden Real Estate that had existed in Ballarat in one form or another for close to a century. 
11	The Real Estate industry is obviously a regulated one. One would naturally expect a person in the position of an estate agent to be utterly beyond reproach.  An estate agent is entrusted with large sums of money as part of significant financial transactions on behalf of individuals.
12	You had worked as an estate agent since 1990 and were a director and secretary of your family’s business, Hayden Real Estate, since 1996.  It was a business that had 50 properties on its rent roll, sold up to 10 properties a month and employed 19 agent’s representatives. 
13	At the time of the offending, Hayden Real Estate operated four bank accounts with Bendigo Bank.  There were several authorised operators recorded on the accounts, however at a practical level you were the only person who accessed and operated the agency’s trust accounts.  Any and all enquiries about the accounts were directed to you.
14	Employees observed that from 2016 you were present at the office on a daily basis, however your attendance lessened as your wife’s health deteriorated.
15	On a number of occasions, your employees reported to you that customers had made complaints about their deposits and settlement proceeds not being received.  These complaints increased in the 6 to 12 months leading to the agency’s closure in March 2019. 
16	Consumer Affairs Victoria (CAV) ultimately investigated your agency’s records, and a forensic analysis was undertaken on the accounts. Charges 1–3 were identified from that analysis.  Investigators also obtained statements from consumers relating to 9 of the 37 properties the subject of Charge 2.
17	A number of victims were identified from which investigators obtained statements, all of whom trusted you or your firm with the deposits to houses. 
18	Some of the 9 witnesses speak of the sheer disruption caused to their lives when money tied to (usually) their biggest and most significant financial asset was used by you.  Those people are, I expect, representative of many other customers who suffered tremendous anguish and cruel uncertainty when the funds that they trusted you with were misappropriated.
INVESTIGATION 
19	CAV commenced an investigation into Hayden Real Estate (and you) after receiving complaints from consumers in late 2018.
20	The investigation persisted through to January 2019 during which time your wife had died.
21	Investigators compared the documents supplied by the agency with statements of trust accounts obtained from relevant banks.  The bank records and trust records differed substantially.  The discrepancies are identified as follows: 
Sales Trust Account	
Date	Balance on bank statement supplied by Hayden Real Estate	Balance on bank statement supplied by Bendigo Bank	
1 Sep 2018	$1,014,222.26	$3,018.95	
1 Oct 2018	$1,243,893.30	$3,837.15	
1 Nov 2018	$1,538,129.08	$22,042.96	
30 Nov 2018	$1,386,697.43	$20,387.96	

22	On 12 March 2019, the Minister of Consumer Affairs, Gaming and Liquor Regulation:
(a)	directed Bendigo Bank that funds held in Hayden Real Estate’s Rental Trust Account and Sales Trust Account be frozen until further notice;
(b)	directed Hayden Real Estate to cease carrying on its business as an estate agency; and
(c)	appointed Ross Hamilton of Price Waterhouse Coopers as statutory manager of Hayden Real Estate, in place of you, to carry on Hayden Real Estate’s business with a view to winding it up.
23	On 13 March 2019, investigators attended Hayden Real Estate and served the notices issued by the Minister.  You were present at the time.
24	Investigators returned to the offices on 15 March 2019 and served a notice upon Hamilton to produce documents relevant to the investigation.  Documentation was seized from the premises.
25	On 20 March 2019, the funds frozen in Hayden Real Estate’s trust accounts were swept into the Victorian Property Fund (the VPF) pursuant to a direction by the Minister.  At the time, there was $16,689.45 in the Rental Trust Account and $50,110.04 in the Sales Trust Account.
26	On 18 March 2019, investigators issued a notice to Hamilton (as statutory manager of Hayden Real Estate) to produce a number of documents.  A further notice was issued on 15 April 2019.
27	On 21 June 2019, your estate agent licence was cancelled.
28	On 9 August 2019, Hayden Real Estate was placed into external administration and eventually wound up.  It is no longer a registered company.
29	On 10 September 2019, the appointed statutory manager, Ross Hamilton, produced a report regarding his reconciliation of the trust accounts.  A number of outstanding deposits were identified, either where the properties had been settled and were payable to the vendor, or the properties had not settled and were payable to the purchaser.
30	A forensic analysis of the accounts was later undertaken, and a report was issued on 13 December 2019.  That analysis assists one in understanding the inter‑relationship between the charges. 
FORENSIC ANALYSIS 
Charge 1 
31	The forensic analysis of the accounts establishes that on various occasions between 2 February 2018 and 4 September 2018, there were deficiencies in the Sales Trust Account in respect of 12 properties, in sums ranging from $14,925 to $76,428 and totalling $485,749.  
Charge 2
32	The Sales Trust Account was frozen on 12 March 2019 when Hamilton was appointed statutory manager.  As at that date, Hayden Real Estate had received deposits in relation to 37 properties totalling $1,014,999.  Those deposits had not yet been remitted.  At the time it was frozen, the Sales Trust Account had a balance of $510.31.
33	Hayden Real Estate was entitled to $52,055.50 commission in relation to the outstanding deposits.  After deduction of that commission and the balance in the account, there was therefore a total deficiency of $962,433.50 in the Sales Trust Account on 12 March 2019, in relation to the 37 properties.  
Charge 3
34	The forensic analysis also identified 98 occasions between 14 January 2018 and 25 January 2019 where you transferred sums of money from the Sales Trust Account to various personal accounts, in the total amount of $776,976.65.  
35	In the period 1 January 2018 to 1 March 2019, you transferred $150,089 back into the Sales Trust Account from your personal accounts. Thus while the total $776,976.65 was fraudulently converted, the net loss to the Sales Trust Account was $626,887.65.
36	Forensic analysis of the accounts also examined the nature of the expenditure of the funds in the accounts over the relevant period.  The $776,977.65 (the subject of Charge 3) involved transfers of funds into your personal accounts as follows:
No	Number of transactions	Destination Account	Total Amount	
1	81	R M HAYDEN 6125	$580,423	
2	9	RLH NOMINEES PTY LTD AS TRUSTEE FOR THE RLH FAMILY TRUST	$112,074	
3	3	MEHAG PTY LTD AS TRUSTEE FOR THE J.M.H. TRUST	$70,030	
4	5	R M HAYDEN 253	$14,450	

37	The expenditure included some $113,947 on lifestyle expenses exceeding $1,000, from various personal accounts and credit cards. 
38	It also included $199,750 on lifestyle expenses less than $1,000 from those accounts.
39	Some of the lifestyle expenses included sums spent on travel expenses (including international flights, hotels, and overseas hotels), medical and pharmaceutical expenses, motor vehicle expenses, entertainment expenses and clothing expenses.
VICTORIAN PROPERTY FUND (VPF) 
40	76 claims were made against the VPF for compensation for losses suffered by victims:
(a)	10 claims were approved and partly compensated from funds frozen in Hayden Real Estate’s account.  The amounts of those 10 claims totalled $56,503.61, and the amount of frozen funds applied to them was $30,131.84;
(b)	35 claims were withdrawn as a result of Hayden Real Estate and/or the you repaying the claimants prior to the finalisation of their claims.  The amounts of those claims totalled $403,844.78;
(c)	24 claims were approved to a value of $394,249.19 and paid from funds in the VPF.  You later reimbursed two claimants to the amount of $42,235.33, and this amount was recovered to the VPF; and
(d)	7 claims were withdrawn as a result of insufficient information.
41	An additional sum of money of frozen funds was later swept into the VPF.  The amount covered by the VPF and not reimbursed to the fund stands at $309 471.98.  There are no pending claims.
INTERVIEW
42	In December 2019, you declined an invitation to participate in a recorded interview as was your right.
CASE HISTORY 
43	Having been aware of the investigation into your offending since early 2019, you were finally charged in October 2021.  The matter proceeded through the Magistrate’s Court through various administrative hearings in 2022, culminating in an application to have the matter determined summarily (by way of plea of guilty) in October 2022.  That application was refused, and the matter came before me as a plea in mitigation on 5 June 2023.  I will deal in more detail with the significance of the time between offending and charge, as well as the time between charge and plea in my reasons.  I make two points now though:
(a)	I consider you pleaded guilty early (and during the course of a pandemic at that); and 
(b)	I consider the delay I have just alluded to operates to reduce the sentence I impose. 
MATTERS PERSONAL TO THE ACCUSED 
44	Only through exploration of your personal history does one get the real and proper context for the present offending.  There are, as I said, aspects of tragedy that are impossible to divorce from your offending behaviour.  In a way it is inconceivable you would have offended the way you did but for the unhappy convergence of deeply stressful events that befell you in around 2017.
Family background
45	You were raised in an environment free of abuse or neglect.  You are the eldest of five children.  Your father worked in the family real estate business, which had been established in Ballarat in the 1920s by your grandfather.  Your mother was focused on home duties.  You are still close to her and have tried to support her financially, which is no longer possible.  She is 79, and you assist her in her daily life in other ways though.
46	Your father died in 1998 after battling leukemia. 
47	In July 2017, your younger brother, Stephen, died suddenly in a car accident in New Zealand, leaving behind a family that you naturally felt (and still feel) some responsibility to assist.  This wasn’t the only familial loss you would suffer before being charged. 
Education 
48	You attended primary school in Ballarat, before completing secondary schooling as a boarder in Melbourne.  You were a good student and established strong friendships.  After school, you completed a Bachelor of Commerce at the University of Melbourne.
Employment 
49	You have been in constant work since completing University.  After leaving university, in the late 1980s, you worked briefly in commercial real estate in Melbourne.  In the early 1990s, you returned to Ballarat, and took up a position in the family real estate business.  Soon after, your father was diagnosed with leukemia and ceased work.  You eventually took over management of the business in 1996, a business that had significant debt. 
50	You were eventually able to make the business profitable, but the debt burden and ongoing financial worries weighed heavily on you over the ensuing years. 
51	In 2015 and following, the business was again under a great deal of financial stress.  This stress continued into and throughout the period of the offending in 2018 and 2019.  It was not the only stressor in your life then.  Indeed, your offending is not explicable by financial stress alone. 
52	As a result of your offending, in March 2019 you lost the family real estate business and with it your career as an estate agent. You have no assets. You own no property. You live with your daughter. 
53	To your credit, you’ve since obtained work, on a part-time basis, at DEC Housing, a housing charity for disabled people.  They value you.  The letter provided on your behalf is itself impressive.
Marriage and children
54	You met Lisa, whilst at university in the 80’s.  You married her, settled in Ballarat, and raised two children (now aged in their twenties).  There is no question you were totally devoted to your wife.  You are similarly devoted to your children. 
55	In 2003, your wife developed breast cancer.  Having thought you’d seen the cancer off during an extended period of remission, it returned aggressively in 2017.  The cancer that returned metastasised and was inoperable.  It would take your wife’s life within two years of diagnosis.
56	It is clear that you strove to provide a stress-free and supportive environment for your wife, which led to you to concealing from her the financial stressors that were mounting personally and for the business.8  As observed by your brother-in-law Tim McFarlane, your ‘determination to shield Lisa … when the cancer returned and she was deteriorating, was an enormous pressure on [you]’.9  
57	You did more than keep the true state of financial strain on the estate agency from Lisa in the remaining year of her life.  You did all you could to make her remaining time comfortable and worry free. As part of this pretence, you used money that was not yours and there is a real sense you indulged her.  I will return to the interaction between this fact and offending later in these reasons. 
Character 
58	You are a man an of unblemished character that extends well beyond simply your lack of prior convictions. 
59	I was provided with character references authored by those friends, family members and former colleagues who know you best.  Many of them have known you for decades.  All of them knew the purpose for which the reference was to be used. 
60	You are a man who has had strong connections to his local community and strove to improve it with generosity directed towards charities and other community initiatives. You championed, along with your late wife, events designed to raise funds for cancer research. You volunteer for a charity that distributes food to the needy on the Surf Coast. 
61	You are universally described as ‘thoroughly decent’, ‘kind’, ‘law-abiding’, ‘trustworthy’, and ‘sincere’. 
62	Many of these qualities are what one would expect of an estate agent, trusted as they must be in order for homes to be properly bought and sold for instance.  Your personal qualities are genuine, not a veneer hiding something more exploitative or malevolent in your nature.  
63	You did not become an estate agent to offend, either.  It is a sad fact of your offending though, that the trust many clients had in you (for good reason until 2018) was so terribly misplaced as for the first time in your life, you put your own needs and that of your family before theirs.
Mental health
64	I was provided with a report of forensic psychologist Patrick Newton, who provided important insights into this fact of your life. 
65	He concluded that you had a ‘lengthy history of psychological disturbance in response to various life stressors’.  The stress has arisen from two main areas.  First, you have experienced recurrent episodes of financial stress in connection with the real estate business.  Secondly, since the 1990s, there have been repeated illnesses and deaths suffered by members of your family, friends, staff and others.
66	Most significantly, during the period of your wife’s final illness and death (2017 to 2019), you experienced what he described as a ‘persistent state of emotional distress’, ‘a profound sense of grief’, and ‘significant anxiety and depression’.  At the time, you received no mental health treatment, the absence of which ‘prolonged and intensified [your] distress’.
67	In Patrick Newton’s assessment, you suffer from recurrent major depressive disorder, with anxious distress.  You were suffering from this at the time of the offending, and this depression and anxiety is ongoing today.
68	Since the offending, you have obtained treatment for your mental condition.  In 2019, you sought the assistance of your GP who prescribed antidepressant medications (escitalopram and mirtazapine).  In March 2021, you commenced treatment with Dr Steve Carroll, clinical psychologist, which is ongoing.  Dr Carroll, who has seen you for 31 sessions, states that you have been ‘fully compliant with treatment and showed a strong willingness to address [your] depression and anxiety’. 
69	It is worth pausing to note your poor mental health is anything but a fleeting feeling of sadness for instance. The severity and magnitude is such that it still persists despite the proscription of dual medications and extensive ongoing psychological treatment.  I will come to how this is to be treated in the sentencing exercise in due course. 
OFFENDING 
Context 
70	In the broader context of things, this offending can be summarised as an otherwise decent and honourable man in the midst of immense pressure, anxiety and crisis offending in a serious but aberrant way. Once your judgement lapsed and you succumbed to using trust money, you never seemed to find your way out of the situation you created. There is no real sense that you ever thought you would evade detection or consequences for the offending either. You appeared completely lost. 
71	The offending can be better understood through the forensic insights of Mr Newton as follows (bearing in mind what I am about to describe is compounded by the overlay of depression and anxiety that you were labouring under at the time):
By way of background, Mr Hayden told me that his offending had occurred in the context of severe personal stressors. Of these he listed the diagnosis of his wife’s cancer recurrence (2017), the death of his brother in a motor-vehicle collision (2017), a tax office investigation and the illnesses of several staff members which reduced the profitability of the business significantly.
Mr Hayden noted that he had become increasingly anxious and stressed as these stressors mounted. He said that he had found it increasingly difficult to “juggle” the various demands he was facing and that he felt increasingly overwhelmed, stressed and anxious. At the same time, Mr Hayden was also more and more invested in maintaining the outward appearance that “everything was normal”. He said that this desire was primarily motivated by his desire to spare his wife the effects of stress – which he had reportedly been told would undermine her health. Mr Hayden also acknowledged that issues related to his own self-esteem were also involved.
In this context, Mr Hayden decided to take money from the agency’s trust fund to meet an emergent expense. He rationalised to himself that he would be able to rectify the inconsistency before anyone would notice and that, since he would bring things into balance, no harm would be done. As matters eventuated, he was not able to do so. On his account, further irregular transactions were made and the offending spiralled out of control until it was detected.

72	The overlay of your poor mental health is summarised this way at [49]:
Mr Hayden’s offending conduct arose in the context of an unusually intense accumulation of stressors. In turn, this precipitated in him a particularly intense state of depression.
Compounding matters, the nature of the stressors he experienced inherently compromised his principal social support, increasing the financial demands upon the family while at the same time leaving him convinced that it was imperative to prevent his wife from becoming stressed. Based on my evaluation of him, it would seem likely that his depression and anxiety played an important role in the poor judgement and lapse of control which led to his offending.
MATTERS OF SENTENCING PRINCIPLE 
Offending of this type 
73	I was assisted by reference to the case of Brancatella v The Queen, where Weinberg AP and Coghlan JA dealt with offences under s 91 of the Estate Agents Act 1980.  Leaving aside the perhaps illusory exercise in comparing culpability between one offender who offends to prop up an ailing business as opposed to one who offends to fund an extravagant lifestyle, the Court made the following observations:
(a)	The maximum penalty for conversion is the same as theft and obtaining property by deception under the Crimes Act 1958 for good reason; 
(b)	These are more than regulatory offences — they are dishonest by nature and reflect a high degree of criminality; and  
(c)	The oft quoted passage of Charles JA in DPP v Bulfin, still has application in cases of his kind, namely, 
Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses (often tragic in their impact) to large numbers of small investors The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme... 
The result of such considerations, in my view, is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.
74	Clearly general deterrence and denunciation are key sentencing considerations.  The community concern for dishonesty offending of this nature must be reflected in the sentencing process.  I have had regard to the comments of Doyle J in R v Bartels and Priest and Weinberg JJA in Leimontis v The Queen, the latter quote being particularly apposite here:
Principles of general deterrence and denunciation, the judge said, ‘are clearly the primary sentencing considerations’ in the applicant’s case. General deterrence, the judge observed, ‘is of particular importance’, since ‘offending of this kind is easy to commit, may be difficult to detect and is usually committed by persons who hold a position of trust and who are otherwise of good character’. Thus, ‘the message needs to be sent to anyone contemplating exploiting or abusing their employed position so as to dishonestly enrich themselves’, that if they are caught they will be punished. Whilst the applicant’s offending ‘might not be described as sophisticated, elaborate or complex, it nonetheless required forethought, some degree of planning and on each occasion a decision by [her] to complete the fraudulent transaction’. Offending of this kind, the judge said, ‘will always be viewed by the courts as serious’. It is ‘not a species of victimless crime as some are apt to regard it’. The applicant’s offending —  which covered a period of three years and four months and involved a sum in excess of $200,000 — was ‘a gross abuse of the trust’ that had been placed in her by her employer.
Specific matters relied on regarding the offending in the case
75	The Crown notes that between January 2018 and March 2019, you converted a significant quantum of monies from, and caused deficiencies to the Sales Trust Account of Hayden Real Estate, of which you were the Officer in Effective Control.
76	The offending is serious. It involved sustained dishonesty and a gross abuse of trust.  The offending included significant expenditure on lifestyle expenses including travel expenses (for example, international flights, hotels and international hotels) a car dealership, entertainment and clothing expenses.
77	Your counsel, whilst accepting the ongoing dishonesty implicit in the offending and that it represents a breach of trust stressed the need to keep that notion of ‘lifestyle expenses’ in context. Part of that proper context can be found in the reference of Gretel Hayden:
At the risk of sounding simplistic, the only way I can attempt to justify why my Dad made those decisions was to keep the people around him safe; keep my mum comfortable and worry-free as her health rapidly declined and he was required to pay thousands of dollars for non PBS covered medication [I add which amounted to $10 000 per month] , keep his widowed mother cared for in her retirement, support his family through the sudden death of his brother and the ongoing debilitating mental health challenges of another brother, and keep paying his staff their wages (some of whom were on leave for various reasons and unable to work for extended periods of time). He is the first to admit that this absolutely doesn't make what he did right.
78	It was also submitted that the following further matters are pertinent:
(a)	First, the offending formed part of one relatively confined episode of just over one year.  Charge 3 covers 12 months.  Charge 1 relates to a seven-month period (within the 12 months of charge 3).  And charge 2 relates to a single date only.

(b)	Secondly, in respect of charge 1, there was no actual loss occasioned to the victims.  While the deposits were depleted between date of deposit and date of remittance, each person ultimately received remittance of the deposits as required.

(c)	Thirdly, in respect of the victims of charge 2, you have already endeavoured to make restitution to the best of your ability.  At this stage, you have substantially reimbursed the victims (having contributed approximately $450,000).  The victims have otherwise received compensation from the Victorian Property Fund.

(d)	Fourthly, there is a substantial overlap as between the offending in the three charges, because the conversions the subject of charge 3 are responsible, in part, for the deficiencies the subject of charges 1 and 2.  In considering the overall quantum across the three charges, the overlap must be kept in mind to avoid a distortion of the true measure of the offending.  In these circumstances, as addressed below, care will need to be taken to apply the principles of totality and to avoid double punishment in the overall sentence imposed by the Court.38

(e)	In any event, whilst the overall quantum is not insignificant, the quantum is but one consideration and ought not be permitted to swamp the other important matters for consideration in the sentencing synthesis.
Character 
79	Character is a vexed issue in cases of this kind.  Inevitably, offences such as this under the Estate Agents Act are be committed by those who were of prior good character, as that would be a pre-requisite for being licenced. 
80	Your good character was what put you in the position of trust that you ultimately exploited.  One can’t ignore the comments of Charles JA in Bulfin in that regard. 
81	Still, it is hard to ignore the fact you have lived a blameless life until you reached your 50’s.  More than simply not offending in the past you have been an industrious, kind, generous man with a loving family.  You will not be in a position again to offend like this.  Your past behaviour tells the Court something about your future prospects for reform.  That character has work to do in sentencing you as a mature first-time offender, operating under extraordinary pressures. 
82	Factors such as breach of trust go to the weight to be given to your ‘otherwise good character’, but as a matter of sentencing principle undue weight cannot be given to an offender’s breach of trust.  It cannot be used both as an aggravating factor and to diminish an offender’s good character.  I have not treated it as such here.  You are entitled to have your character considered in the way relied upon by your Counsel.
83	It is obvious that just punishment has a role to play in the sentence I impose.  That punishment will be delivered in two ways.  It will involve your confinement and it will involve your performance of conditions under a long CCO.  
Plea of guilty and remorse
84	You pleaded guilty early.  Your plea has been of substantial utilitarian value.  You have facilitated the course of justice.  More than that, you have pleaded guilty during the course of the pandemic.  Pleas of guilty are worthy of greater weight in mitigation and should attract a more pronounced and perceptible amelioration of sentence than at another time.  The reduction of your sentence because of your plea will answer the description ‘perceptibly ameliorated’. 
85	You exhibit real contrition.  Evidence of your remorse is found in your plea and your efforts at making restitution.  It is evidenced by the comments and observations of those close to you in their testimonials written for you on the plea.  There is a palpable sense of genuine guilt and that you feel for the seismic effect your behaviour had on so many people — clients, your staff and your family.  It is further evidenced by the way you describe yourself in punitive, harsh terms to mental health professionals.
86	These matters speak to your true acceptance of responsibility, which in turn informs questions such as specific deterrence and capacity for rehabilitation.
Delay 
87	There has been a delay of four years between the end of the offending (and its detection) and sentence.  More than 20 months have elapsed between charge and sentence.  I accept what the Crown says about this to the extent that offending of this kind often requires a fulsome (and one can infer, lengthy) investigation and accordingly delay is not unusual in a case such as this.  Common or not, it operates to reduce the penalty I impose. 
88	The delay in this case constitutes a ‘powerful mitigatory factor’.  It is relevant in two ways:
(a)	First, ‘where, prior to sentence, there has been a lengthy process of rehabilitation and the evidence does not indicate a need to protect society from the applicant, the punitive and deterrent aspects of the sentencing process should not be allowed to prevail’; and
(b)	Secondly, it has long been recognised that ‘the anxiety and uncertainty experienced by a defendant over a long period while his or her fate is undetermined … is punishment in itself.’
89	I was taken to Street CJ remarks in R v Todd, regarding the notion that, at times, delay may warrant leniency in sentence:
The passage of time between offence and sentence, when lengthy, will often lead to considerations of fairness to the prisoner in his present situation playing a dominant role in the determination of what should be done in the matter of sentence; at times this can require what might otherwise be a quite undue degree of lenience being extended to the prisoner.
90	This is such a case.  I have treated the delay in this case as operating to reduce the sentence I impose for the reasons articulated in the above paragraphs.  You have engaged in a long period of reform, attempted to financially right the wrongs you made, as well as endured anxiety and uncertainty about your fate now for years. 
Extra curial punishment 
91	It is worth noting the delay and uncertainty I have just referred to hasn’t occurred privately.  Your loss of status, the loss of your career, business and reputation have all followed your offending, which has been reported on quite widely (and negatively).  It has been a very public fall from grace.  The Court naturally has a role when sentencing to punish offenders, and where necessary, specifically deter them from repeat offending.  The need to emphasise these sentencing purposes is diminished somewhat where punishment in other forms has already followed the criminal acts and the offender is specifically deterred as is the case here.
Verdins
92	At the time of the offending, you were suffering serious depression and anxiety.  There is a clear nexus between your mental illness at the time of the offending and your offending, which is explained by Mr Newton so clearly as follows: 
Depressive disorders are recognised to have predictable effects on the ability of those who suffer them to think clearly, solve problems and manage life’s challenges.  In particular, those who suffer depression typically manifest a slowing in the speed of their cognitive processing which adversely affects decision making and problem solving.  Their concentration is often impaired and they feel that their thoughts are ‘clouded’.  There is often a tendency to avoid tasks involving effort and to utilise salient solutions; while these may be expedient to implement, they often lead to long term detrimental consequences as well as being ineffective and inefficient more generally.  Beyond this, feelings of hopelessness, pessimism and self-doubt can also adversely affect the ability to take necessary action.
Based on my assessment of Mr Hayden, it is considered highly likely that he was suffering such effects at the time of the offending.  Not only would this be consistent with his self-report, but it also reflects the expected course of the disorder.  Moreover, he continues to manifest these symptoms on examination.
…
Based on my evaluation of him, it would seem likely that his depression and anxiety played an important role in the poor judgement and lapse of control which led to his offending.  The absence of behavioural problems such as addiction or gambling makes this more likely.
93	Moreover, you still continue to suffer depression and anxiety, which requires ongoing treatment.  Mr Newton describes your current mental state as follows:
On examination, Mr Hayden presents with persisting symptoms of a major depressive disorder.  These are most clearly evident in the emotional domain of experience with symptoms such as prominent feelings of sadness, a loss of pleasure in life, and withdrawal from recreational and social activities being prominent.  In addition, Mr Hayden reported significant cognitive effects of depression, he is isolated and pessimistic, and he feels hopeless about the future.  His preoccupations continue to disturb his sleep and he continues to experience a degree of physical malaise.  He adamantly denied suicidal ideation.
Diagnostically, Mr Hayden’s symptoms are sufficiently intense to meet DSM-5 criteria for a recurrent major depressive disorder.  His depression is at a moderate level relative to other sufferers of the condition.  That is, he clearly manifests the core features of the disorder.  His depression also presents with anxious distress.
Mr Hayden’s symptoms persist despite the provision of medication and counselling.  He is assessed to be at risk for a deterioration in his mental health – particularly if he were to be placed into a custodial environment.  Mr Hayden should continue with counselling and medical treatment.
94	It is submitted further that your mental illness would be likely to deteriorate, and your experience of custody is likely to be considerably more onerous than that of a typical prisoner.  Specifically, I was taken to this passage of Mr Newton’s report at [51]–[53]:
Mr Hayden is already engaged with expert mental-health treatment with clinicians with whom he enjoys a good rapport. Were it to be interrupted, such support would not be easily replicated …
From my area of expertise, I would simply reiterate my view that his depression would be likely to deteriorate were he to be placed in custody. He would be likely to internalise the punitive aspects of sentencing in a particularly harsh manner. Further, he is demographically divergent from the majority of prisoners, has no prior exposure to prison mores and would be likely to be vulnerable on these bases alone.
Given such considerations, I would anticipate that Mr Hayden would find the period of adjustment to the custodial environment to be particularly difficult and that he would require close mental-health support at that time. Specifically, it would not only be important that he continued to receive his medication without interruption, but also that his mental state were monitored by mental-health professionals so that any deterioration were speedily addressed. Access to counselling in custodial settings is quite limited, and it would appear to be fair comment to note that treatment of Mr Hayden’s depression in custody would be more constrained than is possible in the community. Thus, it is likely that any deterioration of his mood would persist for the longer term. While it is a truism that any first-time prisoner is apt to experience some mood disturbance, in Mr Hayden’s case his already significant depressive condition is such that his experience would be likely to be considerably more onerous than is typical.
95	In light of the evidence of your mental illness at the time of the offending and at the time of sentence, it is submitted that the Verdins principles apply in the following way (and I will note where there is consensus between the parties on the issues):
a.	First, the nature and extent of your mental condition at the time of the offending ought to reduce the assessment of your moral culpability for the offending conduct.  This, in turn, should lead to a moderation of the need for punishment and denunciation in the sentencing exercise.  The Crown accept that this limb is enlivened but ought not be given much weight.  I indicate I have significantly moderated the sentence imposed as a result of the evidence on this point. 

b.	Secondly, the condition should have bearing on the formulation of the sentence to be imposed, particularly having regard to the likely deterioration of your mental illness in custody, your need for ongoing treatment, and the limited availability of psychological treatment in custody.  The Crown likewise concede that this limb is engaged but again ought to be given limited weight.  I have concluded that the evidence is sufficiently cogent and compelling to have a meaningful influence on the type of sentence I impose — in this case a combination sentence very much tailored to your circumstances. 

c.	Thirdly, given your mental condition at the time of the offending and at the time of sentence, there should be some reduction — even if moderate — of the role of general and specific deterrence in the sentencing synthesis.  There is no acknowledgement on behalf of the Director that this limb is engaged and even if it was, it ought not carry much weight.  I find that the severity of the condition, the way it arises and the how it influences the offending makes it hard for me to truly accept that you are an entirely suitable vehicle through which to deter others.  I will moderate the sentence I impose modestly for this reason. 

d.	Fourthly, your condition at the time of sentencing will mean that a sentence of imprisonment will weigh more heavily upon you than on a person in normal health.  This should mitigate punishment.  The Crown took a similar view of the impact of the condition when considering specific deterrence.  The question seems rather redundant given what I say elsewhere in my reasons about the weight I give specific deterrence (which is to say little at all) given it is hard to conceive of a man who has lost more than you and requires any further personal deterrent to prevent you from re-offending. 

e.	Fifthly, there is a serious risk that imprisonment will have a significant adverse effect on your mental health.  This too is a matter that ought to mitigate punishment.  The Crown notes that your condition may be enough to enliven this limb and I agree this is a concession properly made. 

f.	Sixthly, it is asserted that if imprisoned, your mental health is likely to deteriorate, making your experience in prison more onerous that others would find it.  The Crown submit that this limb, even if enlivened, attracts little weight.  This facet of the argument is more complex than the other aspects of the Verdins argument.  In the end I find the evidence and analysis of Mr Newton described above about the complex factors such as disengaging with existing mental health treatment, the diminution of similar services now available in prison, the real potential for a decline in your health which would persist longer than usual, collectively make good this point. 
Hardship 
96	You will no doubt find prison aversive and difficult.  You have no criminal pedigree.  One way in which you are said to be vulnerable because of your poor mental health is dealt with under the cover of Verdins as I have just said. 
97	The fact also remains you will experience real anguish about the fate of your ageing mother, and your children (who have already lost their mother) during your incarceration.  I consider these matters will add to the burden of imprisonment for you, and commensurately decrease the need to specifically deter you from further offending.
Prospects for reform 
98	Your prospects are excellent.  That fact is of course informed as I said by your prior character.  You haven’t offended before or since.  You have made partial restitution.  You are remorseful.  You seek out help for issues that contributed to your offending.  You enjoy the support of family (some of whom you in turn support) and are employed now and presumably employable in the future.  Even from a clinical perspective, Mr Newton concluded the chances of you reoffending are low. 
99	The Crown agrees that they are excellent, though points to the comments of the Court in Brancatella, that many offenders like you also enjoy excellent prospects too.
Totality 
100	The totality principle is pertinent in this case, given the number of offences and the period of offending.  The totality principle requires a Court sentencing an offender for multiple offences to ensure that the overall sentence imposed is a ‘just and appropriate’ measure of the total criminality involved and ‘not excessive’.
101	Further, and relatedly, given the substantial overlap as between the offending conduct in the three charges (as addressed above) care must also be taken to avoid double punishment in the overall sentence imposed by the court.
102	This principle has application even when imposing a combination sentence such as I am here. 
103	I should add that I have considered the nature of the charges each being rolled up — that is to say they are a collection of identifiable charges bundled together in a single charge.  Rolled-up charges require the offender's agreement and are only for the purpose of a guilty plea.  They simplify the sentencing court’s task and work to the benefit of the offender by allowing multiple instances of similar offending to be dealt with as a single charge.  That is obviously the case here, and it confirms the ultimately cooperative approach you have taken in resolving the matter. 
104	When sentencing on a rolled-up charge, I must consider all the circumstances of the offence and the offender, including if the offending was carried out over an extended period, victimised multiple persons, and the totality of the harm described in the charge.
105	While the Court may consider all the relevant circumstances of a rolled-up charge, the pleading must still be treated as presenting a single formal charge.  The maximum penalty is therefore limited to the maximum for a single charge, in this case two (2) years on charges 1 and 2 and ten (10) years on charge 3.  
106	In this case, I am sentencing you for multiple acts of dishonesty, overlapping in the way I have described earlier.  The totality of this conduct is unquestionably serious, and my sentence will reflect that.
Suitability for a CCO 
107	I had you assessed for CCO.  The author of the assessment report found you to be certainly suitable for a CCO and endorsed the conditions that I was contemplating namely, supervision, treatment and rehabilitation for mental health issues as well as unpaid community work.
108	The CCO report was accompanied by a Mental Health Advice and Response Service (MHARS) report.  Such a report is sought as a matter of course when the Court is contemplating imposing a mental health condition as part of a CCO.  The author of that report insightfully noted; 
Mr Richard Hayden has a documented and self-reported history of depression, anxiety and unresolved grief, loss, and change issues. He presented today as an emotionally vulnerable man experiencing stress, distress, shame, and uncertainty secondary to his legal trajectory and social embarrassment caused by his offending behaviours. Mr Hayden could benefit from ongoing GP review of his physical and mental health status and the efficacy of his medication regimen. He could benefit from ongoing participation in psychological counselling.
Appropriateness of CCO in combination with term of imprisonment 
109	I have had regard to the Court of Appeal’s guideline judgment in Boulton v The Queen.  A CCO imposed in addition to a term of imprisonment is the type of sentence that adds to the flexibility of the CCO regime because it allows a court to conclude, even for serious offending, that all purposes of sentencing may be achieved by a comparatively short period of incarceration followed by a CCO with conditions targeted to the offender’s circumstances.  
110	The maximum term of imprisonment that I can impose in combination with a CCO is 12 months.  The maximum period I can impose for a CCO is 5 years.
111	There is scope within a sentence structured that way for me to pay due regard to all of the purposes of sentencing.  
112	In my view, having balanced and weighed the necessary considerations, the appropriate sentencing disposition is a term of imprisonment followed by a CCO, enabling both punishment and rehabilitation purposes to be served together.  
113	Ms Hamnet, as I said earlier, with conspicuous fairness on behalf of the Director acknowledges that such a disposition is open to me in this particular case, having regard to the both the objective gravity of the instant offending and the unusual constellation of particularly powerful matters in mitigation that apply here.  She also very properly and soundly makes the point that in most other cases of this kind a head sentence and non-parole period would be the only proper way to sentence you.  
114	It appears to me that I can denounce your conduct, punish you, deter others as well as you and foster conditions that assist in your reform by imposing a CCO upon release with conditions I have foreshadowed already.  
115	I have concluded, principally because of the sheer gravity of your offending, that the maximum period available to me as the custodial portion of the combination is appropriate.  I acknowledge that this will cause disruption to your treatment that has already commenced, and you will find that term onerous, but in my view (even taking the Verdins matters into account) nothing less than this figure would be adequate in the circumstances. 
116	I stress that the punitive aspect of my sentence does not end on the day you are released from custody.  For years after your release, you will subject to an Order that is designed to further punish you both by its very existence as well as through the imposition of a large number of unpaid community work hours.  
117	It is clear that post release, you will require ongoing assistance in terms of mental health treatment, which you will receive, and to be clear, the duration of the CCO is in part a reflection of what I perceive to be the need for ongoing treatment, given the comments of Mr Newton as to just how long the symptoms you experience have persisted even with medication and treatment thus far.  It is also designed to give you sufficient time to complete the community work I impose in a way that does not come at too high a cost to other protective factors in your life such as caring for your family, treatment itself and the purpose you find in the work (paid or not) that you do.  
SENTENCE
118	Providing consent is forthcoming, I intend to convict you of each charge and sentence you to a term of imprisonment of 12 months which commences today, followed by a 2-year CCO upon your release.
119	Every CCO, including this one, contains certain core conditions.  They are:
(a)	You must not commit another offence punishable by imprisonment during the period of the order.
(b)	You must comply with any obligation or requirement prescribed by the regulations.
(c)	You must report to, or receive visits from, the Secretary during the period of the order.
(d)	You must report to Geelong Community Correctional Services within two working days of the commencement of this order.
(e)	You must notify the Secretary of any change of address or employment within two working days after the change.
(f)	You must not leave the state of Victoria, except with the permission from the Secretary.
(g)	You must comply with any direction given by the Secretary that is necessary for the Secretary to give, to ensure that you comply with the order.
120	The conditions that apply in addition to those mandatory ones are:
(a)	That you be the subject of supervision by Office of Corrections. 
(b)	You undergo 200 hours of unpaid community work.
(c)	You undergo assessment and treatment for mental health.
(d)	I propose to order that 70 hours of treatment and rehabilitation successfully undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.  
121	You need to understand if you were to breach this order in any way, either by committing another offence or by not complying with any of the conditions of the CCO that alone would constitute a criminal offence for which you can be imprisoned. Further, upon a breach of the CCO, you can be returned to Court and be resentenced for these offences before me. 
122	By way of comment, this sentence means that you are subject to the Order I have just made for the next three years, which means that the consequences for you for your offending will continue until 2026 — a full eight years after the offending occurred.  
Other matters / declarations 
123	Section 6AAA of the Sentencing Act 1991 applies.  But for your plea of guilty alone, I would have sentenced you to a period of imprisonment of 4 years with a non‑parole period of 2 years and 3 months. 
124	No PSD is to be declared. 
125	I make the compensation order in favour of VPF in the sum of $309 471.98.
126	I will order that the reports of Mr Newton and Dr Carroll be provided to Corrections as  a means of assisting them in processing and classifying you upon reception into custody.