Director of Public Prosecutions v A Mendieta Blanco

[2020] VCC 1319

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-19-00398

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEJANDRO MENDIETA BLANCO

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2020
DATE OF SENTENCE:	25 August 2020
CASE MAY BE CITED AS:	DPP v A. Mendieta Blanco
MEDIUM NEUTRAL CITATION:	[2020] VCC 1319

REASONS FOR SENTENCE
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Subject:         Criminal Law

Catchwords:  Sentence – Plea of guilty – Receiving stolen goods – Gold jewellery –       $29,000 value – First time offender – Combination sentence – Four months   imprisonment in combination with a two-year Community Correction Order with 200 hours community work.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn Ms T. Ferrari	Office of Public Prosecutions
For the Accused	Mr P.J . Hannebery QC Dr G. Boas	Madgwicks Lawyers

HIS HONOUR:

1Alejandro Mendieta Blanco, you have pleaded guilty to a charge of receiving stolen goods.  The maximum penalty for this offence is 15 years imprisonment.

2The charge embraces four occasions that have been rolled up into one charge.  On three of the four occasions you paid a total of $1800 for stolen goods (incidents 12, 44 and 45 in the Prosecution opening).  On another occasion you were complicit with co-offender Mr Tenenboim in paying $27,200 for stolen goods.  The details are set out in the schedule to the indictment.

3You received gold jewellery and a Louis Vuitton handbag you knew to be stolen, in your capacity as the owner and operator of Sell Your Gold Pty Ltd (Gold Buyers Melbourne, hereafter Gold Buyers).  The total amount paid for the stolen goods was $29,000 – which is a measure of convenience rather than one which represents the true value of the items.

4You have no criminal record.

5The details of your offending are set out in the Summary of Prosecution Opening dated 30 July 2020, which was tendered as Exhibit A on your plea and forms part of these reasons for sentence.

6I do not propose to set out these details again except in so far as it is necessary to identify the circumstances of your offending, its objective gravity and your moral culpability.

Objective Gravity

7Gold Buyers was a company owned by you.  It operated at level 11, 227 Collins Street. Gold Buyers traded in gold, diamonds, precious gems and luxury watches.  A large part of the business involved purchasing gold jewellery from members of the public.  The purchase price for the jewellery was based on carat and weight.  A price was calculated on the spot and a cash payment was made to the customer.  The majority of the jewellery was then melted into gold bars in a separate room on level 11 and then sold to a gold refinery.

8You set up the company and saw its turnover grow very significantly.  You were the manager, and you occasionally served customers.  Your company salary was $365,000, aside from the profits you were entitled to, which is relevant to understanding your role and stature within the business.

9Your role was such that you were in a position to set the tone and culture of the business.  By that I mean you were a ‘hands on’ owner-operator.  You were not only well aware of the second-hand dealers’ obligations - adherence to its requirements was part of your responsibility notwithstanding the second-hand dealers’ licence was in the company name.

10This is the context within which you offended.  You are not to be sentenced for the crimes of Mr Tenenboim, or for those of your brother Julio.  You are not to be sentenced for uncharged acts or knowledge of the misdeeds of others.  Nor are you sentenced as a person who ran a business which incorporated the illegal activity of receiving stolen goods within the wider, lawful operations of the business.  The context is relevant to assessing your moral culpability for the instances of dishonesty embraced by the charge.  The context is also relevant to my assessment of the need for denunciation of your crime and general deterrence.  Your position of responsibility and ownership are central to your criminality.

11In identifying the context and circumstances of your offending I have had regard to not only your role within the company, but also some of the matters revealed by the recorded conversations, referred to in the Prosecution summary, particularly at paragraphs 27, 28, 34 and 36.

12These conversations reveal much about your leadership within the business and the gravity of your offending. Your acts of receiving between August and October 2017, were not aberrations or mistakes, perhaps made in the heat of the moment or made under some psychological pressure that reduced your inhibitions. They reveal the absence of a moral compass.  They revealed the brazenness of your offending, and the fact that the acts were committed by the owner of the company in a manner consistent with the company ethos and culture that you observed and fostered.

13The serious aspects of your offending that I have had regard to in assessing the objective gravity of the offending includes:

a)The fact that you were the owner and operator of the company.

b)The context as set out above relating to the culture and example set by you.

c)The stolen property was likely to include highly prized personal items of great sentimental value to their owners.

d)The stolen property was likely to have been stolen during domestic burglaries.

e)The money exchanged by you for the stolen property was significant.  

f)The actual value of the stolen property was no doubt significantly higher than the discounted gold and jewellery value paid by you for the goods.

g)You were aware of the second-hand dealers’ obligations and the reasons for those regulations. You bypassed those regulations with no hesitation or compunction.

h)The second-hand dealers’ licence places you and the company in a position of trust which was breached.

i)You were clearly aware that detection of your crime would be extremely difficult given the fact that the bulk of the stolen property, namely jewellery, was unable to be identified once was it was melted down.

14There are no circumstances that mitigate the offence.  The charge embraces four deliberate acts of dishonesty.  The suggestion that there was no financial need to deal in stolen property as the business was otherwise doing well, and the suggestion that any profit that could be identified from the proceeds of your offending was extremely modest, do not mitigate the offence in my view.

15The deliberate and considered nature of the offending, given the context, suggests a motive of greed as the only reasonable explanation.  Taking such a risk for such a modest advantage is perhaps explained, at least in part, by the chances of detection being negligible.

16There is no evidence that you experienced any shame or disquiet during your offending.

Personal Circumstances

17You were born on 4 June 1986 in Columbia.  You are 34 years of age.

18Your background sets you apart as someone who is extremely gifted, resourceful and driven.

19You completed school at the age of 15 in 2001, two years earlier than your peers.  You travelled alone at the age of 16 to Australia, with little English and no family or real contacts.  You commenced work as a cleaner in office suites in a St Kilda Road office complex, and then as a dishwasher with the Atlantic Group at a function centre.

20You commenced studies to obtain an Advanced Diploma in Hospitality Management with Cooking in mid-2003.  In 2004 you went to work at the neighbouring business (Rivers Restaurant) as a kitchen hand, studying during the day and working until late at night. After a few months working at Rivers Restaurant, the Head chef took you with him to work at “Deck”, an elite fine dining restaurant at the time.

21In April 2005, you commenced your application for permanent residency, requiring you to work two jobs as well as studying.

22In July 2005, you obtained a Diploma as a qualified chef.   In August 2005, you met your now ex-partner, Ms Finlay, and went on to have two children with her. At the same time, you commenced work at the Royal Melbourne Hospital, while also working as a cleaner in a residential complex in East Melbourne.

23You obtained permanent residency in Australia in late 2006.

24In February 2007, you moved in with Ms Finlay and her mother on the Sunshine Coast. You then commenced work as a labourer with a brick manufacturing company, in Gympie, Queensland.

25In July 2007, Ms Finlay became pregnant with your first child.

26In August 2007, you started your first business, providing coin operated massage chairs to Returned and Services League Clubs (‘RSLs’).  In October, you returned to Melbourne with Ms Finlay working as a cleaner again.  During this time you continued your efforts to obtain contracts with shopping centres in order to place your massage chairs and by January 2008 you were able to work full time in that business.  In March 2008, your daughter was born.  Later that year, you sponsored your brother Cesar to Australia.

27In the same year, you commenced your first gold buying business, Sell Your Gold.

28In January 2009 you married Ms Finlay and in December that year your son was born.

29In 2011, you set up your first shop front and then moved to the Collins Street premises.

30By 2016, you had separated and divorced Ms Finlay which took a significant personal and emotional toll, I am told and accept.

31In 2016, you teamed up with another jeweller to donate over 300 bicycles to under-privileged children in Vietnam, which has been repeated every year thereafter.

32A number of testimonials and other materials were tendered in support of this fact and to illustrate the breadth and benefits of your charitable work.

33In April 2018, you informally sponsored two international students in their studies in Australia, spending $20,000 on this pursuit thus far and recently formalising this ongoing charitable work.

34These matters personal to you tell a tale of drive, hard work, dedication, innovation and ability.  From very humble beginnings at a young age you have achieved remarkable success.  Your charity work is a further credit to you.

35You are well thought of by those who know you.  I received letters of commendation from several people who have come to know you and speak highly of you, including a medical practitioner and a retired paediatrician.

36It is a great shame that you have sullied such a fine reputation by succumbing to the temptation of easy money via dishonest means without a care for the perhaps invisible victims to you of the thefts.

37Your background is otherwise impressive, and gives me confidence as to your rehabilitation – although a question will always remain over your honesty in circumstances of trust where the risk of detection is low.

Extra-curial Punishment

38Your Counsel, Mr Hannebery QC, relied upon two matters amounting to
extra-curial punishment.  The widespread media reporting of your case, and the fact that your assets were seized and have been frozen over a three-year period in response to a prosecution case that has diminished monumentally.

39Both matters attract some mitigation of sentence in my view.  Both matters must be viewed in the context of the three-year delay, which is also relied upon as a separate matter in mitigation.

40The reporting of your case was extreme and in only the slightest of ways does the reportage reflect the criminality before me.  I accept that this is a matter that has caused you distress, embarrassment, shame, loss of reputation, loss of opportunity and the pain of public condemnation and opprobrium.  I note in passing, that even recent media reports since the plea and sentence of
Mr Tenenboim state as fact matters that were not stated by me, nor am I aware of them forming part of the Prosecution opening.

41I accept that the weight of such a matter must have affected your life in all manner of ways over a three-year period.  I accept it represents a degree of extra-curial punishment.

42So too the financial consequences of restraint of your assets over such a length of time would amount to some extra-curial punishment, although it is difficult for me to assess that matter other than in a very rudimentary way, as I am not aware of the extent of the restraint nor the extent of the discrepancy between what will remain and what will be released.

43Both of these matters are also relevant to the question of delay. They have added to the weight of worry hanging over your head during that period and I give both of them mitigatory weight.

Plea of Guilty

44I am satisfied that your plea of guilty should be regarded as an early one.  As your Counsel has detailed, you effectively entered pleas on the charge as soon as you were reasonably able to do so.  You initially faced 450 charges.  Post committal you faced a single charge of conspiracy.  The current indictment arose in June 2020 and you indicated a preparedness to plead guilty to it immediately.

45Your plea attracts a very significant utilitarian value.  As I noted during the plea hearing, it is not an exaggeration to describe the circumstances surrounding trial listings in this State at present as a crisis.

46A trial of you and your co-offenders may have taken up three months of court time.  The trial was listed for July just gone, but of course it would not have been able to proceed and the date was vacated some time ago.   It is likely a trial would not have been reached until late 2021 or early 2022.  The many hundreds of trials that have not been reached during this pandemic and those that cannot be dealt with in the coming months of course stand a better chance of being reached in the next 18 months due to the resolution of matters such as yours.

47At the best of times your plea would have a significant utilitarian value.  In the context of this pandemic it is far more pronounced.

Delay

48Delay is a matter of great significance in your case, as it is for your co-offenders. The matter has hung over your head for a lengthy period.  You have not
re-offended, you have abided by strict bail conditions and travelled from Sydney to Melbourne for court commitments when required.  You have also engaged in charitable works and remained engaged in the community.

49Your conduct during this period of delay, and the fact that you have experienced the delay knowing you would face the consequences of your offending eventually, attracts mitigation and I have taken this into account in determining the sentence I will impose.

COVID-19

50You will enter custody at an extraordinary time in our history.  The atmosphere in our community in this State is one of high anxiety and oppressive circumstances.  Your experience in custody will be shaped by the atmosphere we are all experiencing.  You will endure a 14-day quarantine.  You will have no visits for the four-month duration I will impose.  It is likely that you will not be able to see those dear to you other than on a screen, for the duration of your gaol term.

51I have taken these matters into account.  I have also taken into account the added burden of experiencing anxiety and concern for the welfare of yourself and others whilst you are incarcerated.

Prospects of rehabilitation and previous good character

52I have taken into account your previous good character and I find your prospects of rehabilitation to be good.

53You are a first-time offender, and significantly, this will be your first experience of custody.  The sentence I impose reflects the leniency and mercy that I consider is available to you given your circumstances.

54Your Counsel made several very persuasive points, one of which was that this charge, all things considered, is a $30,000 handle charge of receiving stolen goods or thereabouts. The implication being that I should deal with you as I would a first-time handler who had bought a $30,000 stolen car perhaps, or a stolen caravan perhaps, or who had a garage wall containing stolen power tools.

55That argument is worthy of consideration and is persuasive up to a point. However, the subject matter of your offending falls within a particular category, the serious aspects of which I have already summarised.  Further, you owned and ran a business that held a second-hand dealer’s licence.  The offending was difficult to detect for the reasons I have set out.

56The crime of receiving encourages theft.  A particular type of theft is encouraged by instances of handling committed in the course of the sort of business you owned and ran.

57General deterrence and denunciation are very significant factors.

58For that reason, I find I am unable in your case, despite the mitigation available to you, to conclude that a lengthy Community Corrections Order alone can meet those factors.

Parity

59I have considered parity.  The disparity that is called for between the sentence I imposed upon Mr Tenenboim and the appropriate sentence in your case is clear given the disparate circumstances of offending:

a)The charge Mr Tenenboim faced embraced 42 rolled up occasions of handling. He outlaid $144,000 to purchase the stolen goods.

b)The circumstances of his role, background, experience and qualifications are in a similar orbit to your circumstances however, ultimately it was you who had the responsibility for compliance with the second-hand dealers’ obligations.

c)The personal mitigation available to Mr Tenenboim was slightly greater than in your case.  The burden of imprisonment will weigh heavier upon him.  He had demonstrated some remorse.  The financial extra-curial punishment in his case was precisely identified.

60Your brother Julio is older than you, but you were his employer.  His role in the company was not one of seniority although he was a director at one time.  His salary reflects his position in the company.  The quantum and frequency of his receiving stolen goods exceeded yours – however he was not in the same position of trust.  It was not apparent that me that he was in a position to shape the culture and practices of the company.  He followed the practice, during that period of offending, that was observed and encouraged within the company.

61I have concluded that his moral culpability is less than yours despite his criminality having greater breadth.

62I have also found in his case genuine and deep remorse.  I have also found occasion in his case to impose a merciful sentence for the reasons I will set out when I come to sentence him.  I was particularly moved by his letter which he read and which was strongly supported by the testimonials tendered on his behalf.

63I have applied the principle of parity in arriving at the sentence I will now impose.

64You can stand up, Mr Alejandro Mendieta Blanco.

Sentence

65On the charge of receiving stolen goods I sentence you to four months imprisonment in combination with a Community Corrections Order of two years duration.

66A condition of the Community Corrections Order is that you perform 200 hours of unpaid community work.

67Pursuant to 6AAA of the Sentencing Act were it not for your plea of guilty I would have sentenced you to a period of two years imprisonment with a non-parole period of 12 months.

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70HIS HONOUR:  Now, I think I raised this in Mr Tenenboim's sentence. There is a disposal order somewhere.  Is the disposal sought in relation to the goods listed in the schedule for each indictment, My Glynn, or is it - is that a matter I need to deal with now, or?

71MR GLYNN:  No, I think there's some complications with those orders, and I think it's generally agreed that they should be just adjourned for the time being. We'll see if we can work out an agreed position and bring the matter back. 

72HIS HONOUR:  All right. No other matters that need to be addressed? There's no pre-sentence detention, is there? 

73MR GLYNN:  No, Your Honour. 

74HIS HONOUR:  I don't think there was. All right,
Mr Alejandro Mendieta Blanco, you understand the sentence that's been imposed on you.  I'll leave the Bench, and you can have a brief chat with
Mr Hannebery. I'm not sure what the arrangements are downstairs, so I'll allow that to take place. 

75MR HANNEBERY:  Now, Your Honour, what I was proposing for the
co-accused sentence was to go back to chambers.  I don't need to be here, I'm assuming that's - - -

76HIS HONOUR:  No, you don't need to be here. You can log in and view that. And that will be done at 12.30. 

77MR GLYNN:  Pardon me, Your Honour. Mr Mendieta Blanco has to sign the order, I think. 

78HIS HONOUR:  Yes, of course. No, that's right. We'll have to - you can take a seat, Mr Mendieta Blanco. I take it you will consent to the Community Corrections Order that will follow the period of imprisonment? 

79OFFENDER:  Sorry, Your Honour? 

80HIS HONOUR:  I assume you consent to the Community Corrections Order that will follow the period of imprisonment?

81OFFENDER:  Yes, I do. 

82HIS HONOUR:  Yes, well, that will be prepared now and I'll sign it and you'll be asked to sign it. 

83MR HANNEBERY:  If I could be excused, Your Honour? 

84HIS HONOUR:  Yes, certainly, Mr Hannebery. Thank you. All right, thank you for that.  Thank you, Mr Mendieta Blanco. Thank you for everyone in attendance. If necessary, I'll adjourn the court until 12.30. 

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