Director of Public Prosecutions v Allan

[2015] VCC 1411

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01030

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROB ALLAN

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	22 September 2015
DATE OF SENTENCE:	1 October 2015
CASE MAY BE CITED AS:	DPP v Allan
MEDIUM NEUTRAL CITATION:	[2015] VCC 1411

REASONS FOR SENTENCE
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Subject:  Property by deception x 6
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:  Community corrections order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Fisher
For the Accused	Mr G. Georgiou

HIS HONOUR: 

1Rob Allan, you have pleaded guilty to six rolled up charges of obtaining property by deception.  The maximum penalty for each charge is ten years' imprisonment.  By rolled up, I mean each of the charges includes a number of instances where an offence occurred, but for the sake of convenience and simplicity, those charges have been combined into one.  In each case, the maximum penalty remains the same.

2You have no prior convictions and, this offending aside, have otherwise led a blameless life.  There are no matters pending.

3Your offending occurred over a four-year period between October 2006 and September 2010.  It was prolonged, planned and sophisticated.  It exploited weaknesses identified by you in the claims reporting and handling methods employed by the two insurance companies concerned.  You were the mastermind but your offending could not have succeeded without the involvement of others including each member of your family and you readily used the names and personal details of friends and acquaintances from the local Russian community whose identity had been used by you without their knowledge and consent.

4The facts and circumstances surrounding your offending are summarised in a lengthy prosecution summary that was tendered in evidence and marked as Exhibit A.  It was read in open court by the prosecutor Mr Fisher and accepted by your counsel, Mr Georgiou SC and Ms Smith, as being accurate and as representing a proper basis upon which I can pass sentence upon you.  It is not necessary that I here repeat what is there set out in full, except in a very summary way.  However, these sentencing remarks need to be read with what is contained in the summary, all of which I have taken into account.

5You and your wife purported to be the insured policy holder and provided false information to the RACV, and in one incident, Calliden, about motor vehicle accidents that either did not occur or in respect of which the named insured was not involved.  You also provided additional third party vehicles and false driver details to support claims made falsely by you.

6To perpetuate the fraud, you provided third party driver mobile telephone numbers registered to you and your wife or other family members.  When telephoned, those persons masqueraded as the third party.  The names of the third party vehicle drivers provided to the insurer by you or your wife were fictitious, and they were not the registered owners of the vehicles.  In most instances, the third party registered owners had never driven or seen the vehicles concerned.  Many of these persons were from the Russian community of which you are a member.

7By various means, you diverted payments from the insurer to yourself.  By these means, you obtained $307,376.79 by deception, but the ultimate benefit to you was $242,666.49.  This money was spent largely on alcohol and gambling.

8To your credit, you have repaid $242,666.49 in full.  This was done by your wife borrowing secured by a mortgage over your home.  No compensation order is sought against you.

9Also to your credit, you have pleaded guilty to the charges and I treat you as having done so at an early stage.  The matter resolved at committal.  For that, you are entitled to a reduction in sentence and this is reflected in the sentence that I shall shortly pass.  By your guilty pleas, you have saved the time and cost of what might have been a lengthy trial and I treat your guilty pleas as evidence in genuine remorse.

10In 2010, you desisted from your fraud.  You were first spoken to by police in July 2012 and you were formally interviewed in January 2014 and charged in August 2014.  I accept you have had these matters hanging over your head for some time and this has affected you, but I cannot see any evidence of undue delay.  These types of charges are notoriously hard to investigate, and it is time-consuming work.  Nevertheless, as I say, I have taken the time between when you ceased offending and now into account.  Importantly, I take into account the fact you stopped offending of your own accord.  You were not caught in the act and you have not reoffended.

11Your wife and two children are co-offenders as were Sam Eingorn and Alexander Torbay.  The latter two persons were dealt with on lesser charges in the Magistrates' Court in December 2014.  Eingorn was convicted of deceptions totalling $6,513.32 and the matter was adjourn for 18 months for him to be of good behaviour, and he was to pay $2,000 into the court fund.  Torbay was dealt with for one charge of deception involving $11,550.  He received a similar disposition but without conviction.

12Your son Edward was dealt with on 11 June this year in the Magistrates' Court for recklessly dealing with the proceeds of crime, for which he received an adjournment without conviction and he had to pay $500 into the court fund.  The offending of your son and Eingorn and Torbay was at a far lower level than your offending.

13Your wife, who was more closely involved with your offending, but who played a lesser role than you, was dealt with on 29 July 2015 in the Magistrates' Court, having pleaded guilty to two rolled up charges of obtaining property by deception totalling $85,461.37.  She was convicted and received a community corrections order for a period of 24 months with conditions including 250 hours community work.  She has appealed that sentence.

14You face more charges and the amounts involved are much larger.  There is no question of parity with your wife or any of the other offenders here, and it was not suggested that parity must apply.

15Your daughter has also been charged with offending and awaits trial.  As I say, you were the mastermind of this criminality, assisted by your family and others.  I regard your offending as being very serious for offending of this kind and your criminal culpability in the offending was high.  The reason for your offending seems to have been to fund your alcohol abuse and gambling, although I was told, and accept, you have not gambled now for some time.

16Mr Georgiou conceded that your offending was serous and normally would call for immediate imprisonment.  But in a helpful outline of argument, he and Ms Smith outlined a number of matters that they ask me to take into account and ask that instead of sending you to gaol, that I impose a community corrections order with conditions.  I borrow from their outline.

17You are now 56 years of age.  You were born on 2 May 1959 in the Ukraine.  You migrated with your parents and another sibling to Australia in 1976 when you were 16 years old.  You attended school in the Ukraine but you did not continue with any formal education after your arrival in Australia.  Your parents still both reside in Melbourne but are separated, and have been so separated for about 25 years.  Your father is now 86 and your mother 76.  Your mother is in poor health.  Your relationship with your father is strained but you have a good relationship with your mother.  You see your father infrequently and have had very little contact with him.  In contrast, you see your mother regularly and take her for swimming exercises.

18Within two weeks of the family arriving in Australia, you obtained work as an apprentice panel beater.  Your upbringing is said to be marked - and I accept - by physical and emotional abuse from your father, who was described as a violent and abusive drunk, and his violence was frequently directed towards your mother and you.  From the age of 12, you began to abuse alcohol and you socialised with other disaffected youth.  Your father's drinking and alcohol abuse continued upon your arrival in Australia.  The family was not in a strong financial position and you were required to hand over most of your income.  You left home at the age of 19 due to the ongoing conflict with your father, who made it impossible for you to continue to live at home.

19You completed your apprenticeship as a panel beater after three years.  You left the apprenticeship as you were no longer living at home and could not afford to survive.  During the apprenticeship years, you attended trade school at Batman Automotive College and you have had a solid work history in the panel beating industry ever since.

20You are married to Yana Sher and you have two children, Frances (33) and Edward (28).  You have had difficulties in your marriage over the years and there have been periods of separation, the longest period being for six months.  However, you and your wife are working towards maintaining your relationship which is described as having been good in recent times.  You maintain a good relationship with your son Edward, but these events have strained your relationship with your daughter.  I received into evidence a detailed psychological report of Dr Matthew Barth dated 15 September 2015.  In that report, Dr Barth deals with what he describes as your emotional distress.  He says, at paragraph 25 and following: 

"Mr Allan's arrest on these matters has cast him into a state of personal crisis.  He is experiencing marked emotional distress and he reported recurrent bouts of suicidal ideation which remains concerning despite his insistence that he will not self-harm.  Mr Allan's mental state is currently characterised by prominent depressive and anxiety-related symptoms.  He told me that he experiences continual sadness, guilt, emptiness and experiences minimal pleasure in his daily life.  He said he has become pessimistic about his future due to the detrimental impact the offending has had on his family.  Furthermore, Mr Allan's dysphoric moods are interspersed with intense irritability, agitation and resentment about his life circumstances.  He reported that his emotional distress has severely disturbed his sleep, and that he has withdrawn from many of his social outlets.  Mr Allan's current emotional distress has significant 'reactive' elements due to the stress associated with his current legal matters and breakdown of his family.  However, his mental health also consists of more chronic elements which are an outworking of the emotional and interpersonal issues that have their genesis in his abusive childhood."

21Mr Barth went on to conclude as follows: 

"Mr Allan presents as a man who continues to experience significant emotional, interpersonal, behavioural issues.  His problematic childhood undermined his ability to establish positive connections with others, leading to the development of deep-seated feelings of inadequacy which he has overcompensated for by engaging in a range of unhealthy behaviours.  At risk of stating the obvious, the more treatment he can access, the better.  On a positive note, Mr Allan has a strong work ethic, good work skills, stable employment history which bode well for his ultimate rehabilitative prospects.  In contrast, his limited insight into his offending, long-standing emotional issues, his maladaptive personality traits and chronic alcohol abuse require sustained treatment."

22He went on to say that you require ongoing psychological treatment which should encompass mental health treatment and alcohol-related education and counselling.  In passing sentence, I have taken Dr Barth's report into account, and I accept what he has found.

23Mr Georgiou submitted, and I accept, that your mental health issues would make a gaol sentence more onerous for you, and this should be taken into account in deciding the kind of sentence that I should impose.  Offending of this kind almost always calls for a stern sentence because of the need to apply general deterrence and to adequately reflect denunciation for your offending.  This kind of offending strikes at the heart of this area of commerce.  It is almost always committed by offenders like you who have never previously been found to have breached the law.  That is why stern sentences are called for as a general deterrent to others who may be tempted to offend as you have.  This kind of fraud is difficult to detect and investigate, and such investigations are costly and time-consuming.  They take up a lot of resources in investigation and prosecution, as was the case here.  In your case, the offending lasted in total four years.  For these reasons, a term of imprisonment is almost always imposed.

24Recognising this to be the position, and accepting your criminal conduct was serious, Mr Georgiou asked me to impose a community corrections order.  As I have said, he relied on all of the matters that I have set out above, but principal amongst them your age and the fact that you have no prior convictions, your pleas of guilty and your remorse, the fact you have repaid the money and desisted from offending on your own accord, your family background and history of abuse leading to your long-term alcohol abuse, and your state of mental health and the fact that a gaol sentence will be more burdensome for you.

25The prosecution submitted that any disposition here must involve an element of immediate imprisonment.  It submitted that a community corrections order only, without some immediate imprisonment, would not be just punishment and would not represent proper application of the principle of general deterrence, which it submitted is the principle driving a sentence for serious fraud which it submitted your crimes represent.  Mr Fisher relied upon Dyason v The Queen [2015] VSCA 120 where the Court of Appeal reaffirmed the principles enunciated by Justice of Appeal Charles in Director of Public Prosecutions v Bulfin (1998) 4 VR 114.

26Whilst I recognise the force of Mr Fisher's submission, and I accept that your offending in a crime of this kind is serious, in my view there are numerous factual matters that distinguish this case from that of either Dyason or Bulfin. Apart from anything else, the amounts of money involved here are much lower and you have repaid all that you deceitfully obtained. More importantly, there are matters personal to you that drive the kind of sentence that should be imposed. Section 5(4C) of the Sentencing Act provides:  A court must not impose a sentence that involves the confinement of the offender unless it considers that the purpose or purposes for which the sentence is imposed cannot be achieved by a community corrections order to which one or more of the conditions referred to in sections 48F, 48G, 48H, 48I and 48J are attached.

27In imposing a sentence, I am bound by that provision.  I have decided that a community corrections order is the appropriate disposition here.  In my view, the terms and conditions of the community corrections order I propose will strike an appropriate balance between just punishment and rehabilitation, both of which can be achieved without sending you to prison.  To be clear, I am not satisfied the purposes for which the sentence is imposed cannot be achieved by a community corrections order.  In this case, I am of the view that the purpose of sentencing can be achieved by the making of a community corrections order and that is the sentence I will impose.

28Would you please stand, Mr Allan.

29On each of the charges, I make a community corrections order with conviction.  The term of the community corrections order will be four years.  There will be conditions as follows:  for 350 hours unpaid community work, supervision, treatment and rehabilitation for alcohol and gambling, and treatment and rehabilitation for mental health.

30For the purposes of s.6AAA of the Sentencing Act, I state that had it not been for your pleas of guilty to the charges, I would have imposed an aggregate sentence of three years' imprisonment, and I would have directed that you serve a minimum of two years before being eligible for release on parole.

31The prosecution seeks a forensic sample order for the taking of a forensic sample from your body.  The application was not opposed, and having regard to the seriousness of your offending, and my view that it is in the public interest that a sample be taken from you, I have signed the order sought.

32Mr Allan, I have been told that you have had the terms of the community corrections order explained to you.  Is that so?

33OFFENDER:  Yes.

34HIS HONOUR:  Do you understand that during the term of the order, which is four years, you must not commit another offence punishable by a term of imprisonment?  Do you understand that?

35OFFENDER:  Yes.

36HIS HONOUR:  Do you understand that if you do so, you will breach the order and you will be brought back before me to be dealt with?  Do you understand that?

37OFFENDER:  Yes.

38HIS HONOUR:  I have also made an order that a forensic sample be taken from your body, which is nothing more than a taking of a sample of saliva from your mouth, do you understand?

39OFFENDER:  Yes.

40HIS HONOUR:  By the terms of that order, you will have to present to the Moorabbin police station at the Nepean Highway within 28 days, do you understand?

41OFFENDER:  Yes.

42HIS HONOUR:  And you will have to permit the policemen to take that sample from you.  Do you understand that?

43OFFENDER:  Yes.

44HIS HONOUR:  Any questions arising out of that, Mr Georgiou?

45MR GEORGIOU:  No, Your Honour.

46HIS HONOUR:  Mr Fisher?

47MR FISHER:  Nothing.

48HIS HONOUR:  Could you come forward please, Mr Allan.  Just behind where Mr Georgiou is there, please.

49There's some technical difficulty with the computer case management system which regrettably is aging and needs some attention.  I'll just stand down for a moment, if you could just remain in the court please, Mr Allan, whilst we attend to that and get it printed off.  If counsel have other commitments, feel free to leave if you do.

50MR GEORGIOU:  Thank you, Your Honour.

51MR FISHER:  Thank you.

52(Short adjournment.)

53HIS HONOUR:  I'm sorry you've been delayed, Mr Fisher.

54MR FISHER:  That's all right, Your Honour.

55HIS HONOUR:  You should feel free to leave if you have other commitments.

56MR FISHER:  I'd be grateful - I was just going to ask if Your Honour would excuse me, I do have a matter at 10.30.

57HIS HONOUR:  Absolutely, yes, absolutely.

58MR FISHER:  My instructor, Ms Askov.

59HIS HONOUR:  She probably has other commitments too, does she?

60MR FISHER:  Yes, she probably - yes, I shouldn't jump in, perhaps she needs to leave and I need to stay.  Just excuse me.  She's all right to stay, Your Honour.

61HIS HONOUR:  Very well.  Yes, feel free to leave.  There's just ‑ ‑ ‑

62MR FISHER:  The paperwork.

63HIS HONOUR:  ‑ ‑ ‑ for some reason or other, the system's not recognising Charge 1 and we need to get that right, otherwise there can be problems down the track.

64MR FISHER:  Yes.

65HIS HONOUR:  I apologise.  Mr Georgiou, for any inconvenience.

66MR GEORGIOU:  Yes, I might - my instructor is able to remain.

67HIS HONOUR:  If your instructor could remain, I'd be grateful ‑ ‑ ‑

68MR GEORGIOU:  Yes, yes.

69HIS HONOUR:  ‑ ‑ ‑ but feel free to leave.

70MR GEORGIOU:  Thank you, Your Honour.

71MR FISHER:  Thanks, Your Honour.

72HIS HONOUR:  I'll just leave the Bench for a moment.

73(Short adjournment.)

74(Community-based order signed and acknowledged.)

75HIS HONOUR:  Very well, Mr Allan.  Thank you, you're free to leave.  I don't want to see you back here, you understand?  Thank you.

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