DISCIPLINARY COMMITTEE OF THE ASSOCIATION OFCHARTERED
CERTIFIED ACCOUNTANTS
REASONS FOR DECISION
In the matter of:
Mr Leonard Miles Vandenborn
Heard on:
22 September 2016
Location:
The Chartered Institute of
Arbitrators, 12 Bloomsbury Square,
London.
Committee:
Mr Maurice Cohen (Chairman), Mr
Robert Clarke (Accountant) and Mr
Gerry McClay (Lay)
Legal Adviser:
Dr Fayyaz Afzal with his
guide/reader, Vito Giambalvo
Persons present
and capacity:
Miss Sarah Cawley-Wilkinson
(ACCA Case Presenter), Mr
Vandenborn (Member), by telephone
link from prison and Miss Rachael
Davies (Hearings Officer)
Observers:
Mrs Wendy Harris (ACCA
Appointments Board).
ALLEGATIONS AS AMENDED
1.
The Committee convened to consider three allegations:
Allegation 1
Pursuant to bye-law 8(a)(i), Mr Leonard Miles Vandenborn is guilty of
misconduct in that between 5 July 1975 and 19 November 1987 he
committed 12 acts of indecent assault against two children who were, at the
time of the assaults, aged between eight and fifteen years old.
Allegation 2
Pursuant to bye-law 8(a)(i), Mr Leonard Miles Vandenborn is guilty of
misconduct in that on a day between about 24 December 1981 and 4 July
1982 he had sexual intercourse with a fourteen year old girl.
Allegation 3
Pursuant to bye-law 8(a)(i), Mr Leonard Miles Vandenborn is guilty of
misconduct in that he failed to notify ACCA that he may have become liable
to disciplinary action contrary to bye-law 10(b), by virtue of any or all of the
following:-
(i)
His conviction in the Royal Court of Jersey on 18 April 2010.
(ii)
His sentence in the Royal Court of Jersey on 15 June 2010.
(iii)
The dismissal, on 25 November 2010, of his appeal against
his conviction in the Royal Court of Jersey on 18 April 2010.
SERVICE
2. The Committee had three bundles of documents before it. An Adjournment
Bundle numbered 1 – 84, a Service Bundle numbered 1 – 23 and a
Substantive Bundle paginated a – l and 1 – 40.
3. The Committee considered Regulations 10(1) and 22 of The Complaints
and Disciplinary Regulations 2016. It was satisfied that, in accordance with
the Regulations, Mr Vandenborn had been properly sent the correct
documents and notice at least 28 days in advance of the hearing.
BACKGROUND
4. On 22 November 1971, Mr Vandenborn became a member of ACCA and on
8 November 1979 he became a Fellow.
5. On 18 April 2010 Mr Vandenborn was convicted, in the Royal Courts of
Jersey, in respect of 12 charges of indecent assault and one charge of rape.
The charges related to the abuse of two girls over a long period of time.
6. Mr Vandenborn was sentenced, on 15 June 2010, to a total of 12 years
imprisonment.
7. Mr Vandenborn’s appeal against conviction was heard and dismissed by the
Court of Appeal in Jersey on 25 November 2010.
8. On 7 October 2015, ACCA received an anonymous complaint which alleged
that Mr Vandenborn had been convicted of indecent assault and rape. This
resulted in an investigation by ACCA during which evidence was gathered
including a record of conviction, court transcripts of the sentencing remarks
and the dismissal of the appeal.
APPLICATION TO AMEND
9. ACCA made an application to amend the allegations. Mr Vandenborn stated
that he did not wish to be perceived as being obstructive and on that basis
he agreed. The Committee received advice. The Committee treated Mr
Vandenborn’s response as being neutral on the issue.
10. The Committee considered Complaints and Disciplinary Regulation (CDR)
10(5). The Committee granted ACCA’s application being satisfied that there
was no prejudice to Mr Vandenborn. The amendment to Allegation 1 and
Allegation 2 merely sought to correct the order in which Mr Vandenborn’s
first and middle name appeared. The amendment to Allegation 3 ensured
that bye-law 8(a)(i) was expressly stated. In the Committee’s view this
corrected an obvious omission and it did not introduce any new allegation
and did not alter the character of the allegation.
MEMBER’S RESPONSE
11. Mr Vandenborn accepted that he had been convicted but he denied the
facts. In light of Allegations 1 and 2 containing factual assertions, rather than
the convictions themselves, the Committee proceeded on the basis that the
facts in Allegations 1 and 2 were denied.
12. Mr Vandenborn admitted the facts contained in Allegation 3. The Committee
was satisfied that the admission was correctly made and was in keeping
with the evidence. By operation of CDR 12(3)(c) the Chairman announced
that the facts in Allegation 3 were proved.
13. Mr Vandenborn denied misconduct.
14. The Committee heard ACCA’s case and was referred to the documentary
evidence.
15. Mr Vandenborn chose to give evidence to the effect that he was not guilty of
the offences for which he had been convicted. Mr Vandenborn submitted
that he intended to pursue a further appeal. He also relied on arguments
utilised at the criminal trial and during the course of the appeal relating to
the admissibility of evidence and other matters. He also made a vague,
particularised reference to ongoing investigations in Jersey which may come
to fruition in 6, 12, or 18 months time.
16. The Committee heard parts of the case in private to prevent a
disproportionate interference with Mr Vandenborn’s right to a private life.
17. The Committee retired to deliberate. The Committee noted that Allegation 3
contained the word “promptly”. The Committee considered bye-law 10(b)
(2010). It noted that the bye-law prevailing at the time did not contain the
word “promptly”. The Committee was aware of the power to amend the
Allegation on its own motion pursuant to CDR 10(5). The Committee gave
the parties the opportunity to make representations on this issue. Neither
party objected to this course being adopted. The Committee decided to
make the amendment as it was essential that the Allegation was correctly
based on the prevailing bye-laws rather than those which prevail now.
DECISION ON FACTS & REASONS
18. The Committee considered carefully all the documents provided and the
submissions from both parties. The Committee accepted the advice of the
Legal Adviser.
Allegation 1 – Proved
19. The Committee had before it a document, namely a record of conviction,
particularising the charges faced by Mr Vandenborn, including 12 charges of
indecent assault on child females. The earliest and latest dates mentioned
therein are 5 July 1975 (Count 1) and 19 November 1987 (Count 15). The
ages of the victims, at the time of the offences, range from 8 (Count 1) to 15
(Count 15).
20. It is clear from the transcript of the sentencing remarks, dated 15 June 2010,
that the charges related to “two separate victims” and that Mr Vandenborn
was sentenced in respect of the 12 charges of indecent assault following his
conviction.
21. Mr Vandenborn accepted that he had been convicted of the 12 charges in
question. However, Mr Vandenborn continued to maintain that he was not
guilty of the charges.
22. The judgement of the Court of Appeal in Jersey, dated 25 November 2010,
made it clear that the court considered Mr Vandenborn’s application for
leave to appeal against the convictions was unarguable and must be
refused. There is no current appeal against the convictions.
23. Pursuant to bye-law 8(e) the Committee was satisfied of the fact of the
convictions and the underlying facts, as the record of conviction which is
akin to a memorandum of conviction, judgements from the Courts in Jersey
before which Mr Vandenborn was tried, convicted and sentenced, served as
conclusive evidence of this.
24. Thus, the Committee was satisfied on a balance of probabilities that Mr
Vandenborn committed the 12 offences mentioned in the allegation.
25. The Committee went on to consider whether the proved facts amounted to
misconduct. In the Committee’s assessment the commission of 12 offences
of indecent assault are very serious. The offences spanned a period of
some 12 years, they related to two separate victims, the victims were
vulnerable due to their age and the offences started when the victims were
as young as 8. The imposition of a lengthy sentence of imprisonment is a
clear indication of the seriousness of the offences. The conduct fell far
below that which can be accepted as proper, it attracts a significant degree
of moral blameworthiness and was so serious in nature that it amounts to
misconduct.
26. In addition to this, the Committee decided that Mr Vandenborn has been
found guilty of offences that are discreditable to him, derogatory to ACCA
and the accountancy profession. It brought shame onto ACCA members
and the profession. Further, it was damaging to the reputation of ACCA
members and ACCA itself. It represented a serious departure from the
standards to be expected of ACCA members. The Committee is satisfied
that the convictions were before a court of competent jurisdiction in Jersey.
In the Committee’s opinion the judgements of the Courts in Jersey are
relevant, being based on an established legal system with rules,
procedures, sanctions and appeals
27. In these circumstances, and by operation of bye-law 8(e)(i), the fact of the
convictions are conclusive proof of misconduct.
28. The Committee thus finds that, in respect of Allegation 1, Mr Vandenborn is
guilty of misconduct pursuant to bye-law 8(a)(i).
Allegation 2 – Proved
29. The document particularising the charges faced by Mr Vandenborn
included, at Count 7, rape of a female aged 14 between 21 December 1981
and 4 July 1982.
30. It is clear from the transcript of the sentencing remarks, dated 15 June 2010,
that Mr Vandenborn received an 8 year sentence of imprisonment in respect
of the charge of rape of a 14 year old female.
31. Mr Vandenborn accepted that he had been convicted of the charge in
question. However, in keeping with Mr Vandenborn’s case of denial, he
maintained that he was not guilty of this charge.
32. Mr Vandenborn’s application for leave to appeal against his convictions
included this charge. The application was refused and there is no current
appeal against this charge.
33. Pursuant to bye-law 8(e)(i) the Committee was satisfied of the fact of this
conviction and its underlying facts from the judgements from the Courts in
Jersey which served as conclusive evidence of this.
34. Thus, the Committee was satisfied on a balance of probabilities that Mr
Vandenborn did have sexual intercourse with a female aged 14.
35. The Committee considered whether this amounted to misconduct. In the
Committee’s assessment unlawful intercourse with a female aged 14 which
resulted in a conviction for rape and a sentence of 8 years imprisonment is
very serious. The conduct fell far below that which can be accepted as
proper, it attracts a significant degree of moral blameworthiness and was so
serious in nature that it amounts to misconduct.
36. In addition to this, the Committee decided that Mr Vandenborn has been
found guilty of the offence of rape, thus he had sexual intercourse with a girl
aged 14, which is discreditable to him, derogatory to ACCA and the
accountancy profession. It brought shame onto ACCA members and the
profession. Further, it was damaging to the reputation of ACCA members
and ACCA itself. It represented a serious departure from the standards to be
expected of ACCA members. The Committee is satisfied that the conviction
was before a court of competent jurisdiction in Jersey and in the
Committee’s opinion the judgements of the Courts in Jersey are relevant.
37. In these circumstances, and by operation of bye-law 8(e) (i), the facts
underpinning the conviction are conclusive proof of misconduct.
38. The Committee thus finds that, in respect of Allegation 2, Mr Vandenborn is
guilty of misconduct pursuant to bye-law 8(a)(i).
Allegation 3 – Not Proved
39. The Committee was satisfied that as a member Mr Vandenborn had to
follow bye-law 10(b) which obliged him to notify ACCA of facts or matters
indicating that he may have become liable to disciplinary action.
40. The Committee found that Mr Vandenborn failed to give any notification of
his conviction, sentence or the dismissal of his appeal. These facts and
matters came to light as a consequence of the anonymous complaint made
on 7 October 2015, some five years after the events.
41. The factual aspect of this Allegation was proved with reference to Mr
Vandenborn’s admission.
42. In the Committee’s view it was imperative for Mr Vandenborn to give
notification. Reliance is placed on ACCA members to comply with bye-laws
designed to enable ACCA to properly protect the public interest and to
maintain confidence in ACCA.
43. The Committee accepted Mr Vandenborn’s evidence that at the time he had
not appreciated the obligation to give notification. The Committee accepted
that this was the position as Mr Vandenborn had retired from his
accountancy practice in 2009. His Practising certificate was withdrawn on 8
April 2010 and he was not practising at the time of the conviction, sentence
or dismissal of his appeal. There was no evidence of any contact with ACCA
as would be the case for those in active practice.
44. The Committee also accepted that there were many concerning aspects that
Mr Vandenborn was concentrating on at the time, not least the serious
criminal allegations that he faced and continued to defend post-conviction
and, even now, he is contemplating an appeal. Combined with this, Mr
Vandenborn’s health had suffered. There had been some tragic family
circumstances and consequent poor health of another close family member.
45. The Committee accepted that in all the above circumstances Mr
Vandenborn did not deliberately choose to withhold information through the
failure to give notification.
46. The Committee did not regard the failure to be serious enough in these
circumstances such that it could amount to misconduct.
SANCTION AND REASONS
47. The Committee had regard to the Guidance for Disciplinary Sanctions. The
Committee accepted the advice of the Legal Adviser.
48. The mitigation included the fact that there were no matters noted on Mr
Vandenborn’s ACCA disciplinary record, Mr Vandenborn is now nearly
seventy, he is in poor health and there were some concerning personal
issues. He has been a member of ACCA since 1971, he has had a
successful accountancy career, and he has provided a good quality service.
Mr Vandenborn ensured that his clients went to other practices with the
consequence that he lost the goodwill for his business. He had to pay his
own legal fees and those of the prosecution for the criminal case and this
swallowed up all of his life savings. He cooperated with this process, made
some admissions and one allegation of misconduct was not proved. Mr
Vandenborn asked the Committee to take a merciful view.
49. The Committee determined that the aggravating features included the fact
that the misconduct is based on 12 instances of indecent assault and an
occasion of having sexual intercourse with a child. These are very serious
offences. The offences spanned a 12 year period. There were two separate
victims. The offences started when the youngest victim was 8 years old. The
misconduct was repeated and persisted over a 12 year period. There was
no acceptance of responsibility and the victims had to give evidence. The
sentence of 12 years imprisonment confirms the gravity of the case. Mr
Vandenborn still denies the offences. There has been no regret, remorse or
insight demonstrated. No reliance can be placed on Mr Vandenborn’s
character. The public cannot have confidence in Mr Vandenborn.
50. The Committee concluded that, due to the seriousness of this case, taking
no action or issuing an Admonishment, or a Reprimand or a Severe
Reprimand would be wholly insufficient to protect the public interest in such
a serious case
51. The Committee determined that the minimum sanction necessary in this
case is one of Exclusion from the Membership of ACCA.
52. This outcome sufficiently reflects the seriousness of the misconduct. It will
sufficiently uphold standards of personal conduct. It will restore confidence
in the profession which has been severely undermined. It will maintain
confidence in ACCA’s disciplinary process. It will protect the public.
COSTS AND REASONS
53. ACCA claimed costs of £7,703.98.
54. The Committee was satisfied that the schedule was appropriate. It
contained costs that were necessary and reasonable in terms of time and
rate.
55. The Committee decided that Mr Vandenborn is not in a position to meet any
costs liability as a serving prisoner since 2010 and will remain in custody
until 2018. He has no means of meeting the liability. In reaching its decision
the Committee had regard to the Statement of Financial Position. In these
circumstances the Committee concluded that there was no basis on which
an Order could be made.
EFFECTIVE DATE OF ORDER
56.
The Committee decided that the order would be effective at the end of the
expiry of the appeal period referred to in the Appeal Regulations.
Maurice Cohen
Chairman
22 September 2016