Disgraced Illawarra realtors Gordana and Roger Ocvirk have spent their first night behind bars after a judge warned he would increase their jail time if they continued to appeal against the severity of their 18-month sentences.
Judge Michael King told the Figtree husband and wife they had committed a breach of trust ‘‘of a very substantial nature’’ in misappropriating almost $1.4 million from trust accounts linked to two real estate businesses.
The judge lamented the crimes were not originally brought under the jurisdiction of the District Court, where they might have attracted jail terms of up to 10 years.
The Ocvirks’ barrister was poised to deliver final submissions on day two of the appeal in the District Court in Sydney late yesterday morning when Judge King halted proceedings with a ‘‘Parker Warning’’.
The warning indicates a judge’s intent to increase the penalty imposed in the Local Court, and is an appellant’s last chance to accept their original sentence.
‘‘Fair Trading has hardly done justice to the community by processing these matters in the Local Court, where the [imprisonment] limit was two years, as opposed to the [District Court] limit, which is 10 years,’’ Judge King told barrister Phillip Boulten.
‘‘I’m happy to have your submissions but ... I think it would be a tall order to justify the sentences that were in fact imposed by the magistrate, which in my view fall at the very bottom end of any appropriate range.’’
Mr Boulten withdrew the appeal and the Ocvirks, both aged 39 and parents to two children, were later taken into custody.
They were sentenced in May to to 18 months' imprisonment with a 12 month non-parole period for misappropriating more than $1.2 million from strata company Strata Decisions Wollongong, and $198,708 from real estate agency Dougmal Harcourts Warilla. The offences occurred between August 2010 and January 2012.
Judge King yesterday upheld the decision of Wollongong Local Court magistrate Susan McGowan not to sentence Mr Ocvirk under mental health provisions.
The court heard Mr Ocvirk suffered a suite of depressive symptoms ‘‘culminating in a probable dissociative fugue state’’ and went missing from his home - then in Blackbutt - in January 2012, several days before Mrs Ocvirk notified Fair Trading and police of the misappropriation.
Judge King considered the reports of three doctors who attested to Mr Ocvirk’s poor mental health, but noted all assessments were retrospective, and not borne of treatment at the time of the offences.
‘‘It appears that all of [the doctors] only dealt with the appellant after those [misappropriation] matters had been reported to the police and Fair Trading,’’ Judge King said.
Adult family members attended the appeal in support of the Ocvirks, but did not wish to comment on the outcome.
NSW Fair Trading Commissioner Rod Stowe described the case as tragic but said the Ocvirks’ actions would not be tolerated. “Fraud of any sort in the real estate industry will not be tolerated and Fair Trading will continue its program of spot inspections to ensure all agents are operating within the law when it comes to trust account fund management,” he said.