Roger and Gordana Ocvirk, the director and company secretary of Bayelm Pty Ltd, were each sentenced to 18 months imprisonment with a 12-month no-parole period in Wollongong Local Court in May this year.
The couple withdrew their appeals after the judge warned them that he would increase both sentences if the appeals were not withdrawn. The appeals were dismissed following the withdrawal.
Also dismissed was Mr Ocvirk’s additional appeal against the Wollongong magistrate’s decision not to deal with his offences under the Mental Health Act 2007. Mr Ocvirk claimed he was mentally impaired when the offences were committed.
Earlier this year, Mrs Ocvirk pleaded guilty to fraudulently omitting to account for $1,235,402.67 held in trust by Bayelm Pty Ltd.
She also pleaded guilty to fraudulently omitting to account for $198,708.76 held in trust also by Bayelm Pty Ltd.
Mr Ocvirk was charged with the same offences.
The court heard that on 20 January 2012 Gordana Ocvirk notified Fair Trading of trust account anomalies and handed herself in to Lake Illawarra Police Station.
The same day, lawyers acting on her behalf sent Fair Trading a full and frank admission of her conduct and that of her husband.
Four days later, the licensee of the agency the Ocvirks operated at the time, Tom Imre, filed a written complaint with Fair Trading, advising investigators the sales trust account was overdrawn as a result of unauthorised withdrawals.
In the complaint, Mr Imre alleged the Ocvirks had withdrawn funds totalling approximately $170,000 from the agency's sales trust account.
On May 9 2013, Mr Imre pleaded guilty in Wollongong Local Court to one count of breaching the Property, Stock and Business Agents Act 2002 by failing to properly supervise a business.
He was fined $2,000 plus court costs of $83 and professional costs of $250, and his agent’s licence was cancelled for two years.
The court heard that Bayelm Pty Ltd were running at a significant loss, with substantial debts at the time of the offences, and the Ocvirks frequently accessed the business’ trust funds to pay those debts.
On 10 January 2012, Mr Ocvirk went missing from his Blackbutt home and was located by police seven days later in the Grafton area.
Lawyers acting for Mrs Ocvirk told the court she believed her husband’s suspected mental breakdown was triggered by guilt and stress due to the irregularities and unlawful withdrawals made from the named trust accounts.
NSW Fair Trading Commissioner Rod Stowe described the case as tragic, but said the actions of the Ocvirks required the full force of the law.
“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.