Director of Public Prosecutions v Andreou-Luca
[2016] VCC 195
•22 February 2016
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-04-00341
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| LUCAS ANDREOU-LUCA |
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JUDGE: | HIS HONOUR JUDGE TAFT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 and 29 January 2016 | |
DATE OF SENTENCE: | 22 February 2016 | |
CASE MAY BE CITED AS: | DPP v Andreou-Luca | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 195 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Dishonesty offences – obtaining of credit cards by employing false documentation - fraud upon Commonwealth Bank – offending occurred in 2003 – absconded whilst on bail – subsequently imprisoned for similar offending in Queensland – application of principle of totality
Legislation Cited:
Cases Cited: Morgan v R [2013] VSCA 33
Sentence: 3 years 2 months Imprisonment with a non-parole period of 19 months imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr S Devlin | Solicitor for Office Public Prosecutions |
| For the Accused | Mr K Oldis |
HIS HONOUR:
1 Lucas Andreou-Luca, on 28 May 2004 and while awaiting the hearing of fraud charges in this Court, you failed to comply with your undertaking of bail and absconded to Queensland. Subsequently you were sentenced to a significant term of imprisonment in Queensland and following the expiry of the minimum term, you were extradited to Victoria.
2 You have pleaded guilty to one count of obtaining $391,500 by deception over a six month period between April and October 2003, a second count of theft of $49,550 during the same period and a final count of attempting to obtain a financial advantage between July and October 2003. In each case, the victim was the Commonwealth Bank of Australia. You have also pleaded guilty to the uplifted summary charge of failing to answer your bail in 2004.
3 The circumstances of your offending are detailed in a lengthy prosecution opening of some 57 pages. A summary will suffice.
4 The first count is rolled-up and relates to 34 fraudulent credit card applications made to the Commonwealth Bank by yourself. The total financial advantage obtained by the false applications was $391,500. You employed a common modus operandi.
5 In March of 2003, you attended at a Virtual Office Company and filled out an application for a telephone answering service for Highmonte Constructions. You produced a certificate of registration of business for that company and you used a false name to hide your real identity. That false name was buttressed by supporting documentation including a driver licence and an employee identification card. Over a number of months, you used a similar method to create false documentation in support of fraudulent credit applications in the names of persons who purported to be employed by eight bogus companies.
6 It is helpful to provide an example of the manner in which you offended.
7 On 1 April 2003, you attended at a Commonwealth Bank branch at 225 Bourke Street, Melbourne and lodged an application for a Gold MasterCard to a personal banker. In the application, you provided a number of personal particulars in which you claimed that you were Con Kanaris, that you lived at an address in Sandringham and were employed by Highmonte Constructions as an architect on a salary of $96,200. Your application was supported by false documentation including a Papua New Guinea driver’s licence, a Melbourne birth certificate, and a letter of introduction from Highmonte Constructions. The credit card application was approved with a credit limit of $12,000 and you organised for mail to be redirected to a post office box on the Gold Coast. Withdrawals were then made from this account including a cash advance of $8,400 on 11 April 2013.
8 On the same day, you attended at two further Commonwealth Bank branches and successfully made applications for credit cards in two further false names. In one case, you claimed to be Zenos Christou and that you were employed as a work supervisor by Highmonte Constructions on a salary of $91,000. You provided a Queensland driver licence, a birth certificate and a letter of introduction from Highmonte Constructions.
9 In the final transaction of 1 April 2003, you purported to be John Kalos and that you were employed as an engineer by Highmonte Constructions on a salary of $101,400. You produced a Victorian birth certificate, a St George bank statement, a Papua New Guinea driver licence and a letter of introduction from Highmonte Constructions.
10 The total amounts withdrawn from bank accounts created in false names was slightly in excess of $284,000, although the bulk of those withdrawals occurred in Queensland.
11 Count 2, being a rolled-up charge of theft, represents cash withdrawals of $49,550 from the falsely obtained credit cards at Commonwealth Bank branches in Victoria. Twelve transactions are detailed in Schedule B of the presentment.
12 Count 3 concerns a charge of attempting to obtain financial advantage from the Commonwealth Bank, when your fraudulent applications to secure two credit cards were refused.
13 On 17 October 2003, you were arrested at a Queen Street branch of the Commonwealth Bank in Melbourne. A record of interview was subsequently conducted. You told police that you had gone to the bank to withdraw money from an account in the name of “E Dimitropoulos”. You said that you did not know much about that account and that “Jamie” and “Tony” had given you documents to open the account. You said that you did not know the surnames of “Jamie” and “Tony” but that “Jamie” lived in Nerang on the Gold Coast. As for “Tony”, you said that he also lived in Queensland. You claimed that a Queensland driver licence in the name of Dimitropoulos and a MasterCard in the same name had been given to you by "Jamie". You stated that “Jamie” asked you to go into the branch, withdraw $6,900, and that the amount would be split between the two of you. As to the circumstances in which you met “Jamie”, you said that you met him “about maybe nine months now – eight months. At the pub.”
14 A subsequent search of your room at the hotel at which you were staying resulted in the location of various false documents including birth certificates, bank statements and driver licences in the names of the persons you used to perpetrate the fraud upon the Commonwealth Bank.
15 The interviewing police officer asked you, “… what you did today, is that the right or the wrong thing to do?” You answered, “Maybe it’s right, maybe it’s wrong, I don’t know.” You denied making any other withdrawals from the Commonwealth Bank using false credit cards and when police suggested that they had 35 applications they thought you might have been involved with, you denied making any applications. Ultimately, you conceded that your photo was on a number of false documents and said that you had been told that if the application for a credit card was approved, there would be a 50/50 split of the proceeds. Police put to you that by taking money from accounts in different names, you were engaging in dishonest and illegal conduct. You said, “I don’t know, you know, I'm not a judge.”
16 On any analysis, you engaged in serious and sustained fraud. You were a participant in a sophisticated scheme of sustained dishonesty directed at the Commonwealth Bank. You provided the bank with false documentation including bogus official records in false names. Your conduct extended over six months and involved a multiplicity of transactions. Large sums of money were involved.
17 The prosecution accepts that you did not act on your own and that other persons participated in the fraud. It submitted that you should be sentenced on the basis that you played a significant role in a sophisticated fraud. I agree with that characterisation.
18 On 18 November 2005, Chief Judge Rozenes sentenced Neil Moran to 24 months’ imprisonment with a non-parole period of 9 months. Moran pleaded guilty to two counts of obtaining financial advantage by deception, two counts of theft, one count of attempting to obtain a financial advantage by deception and one count of attempting to use a false document.
19 On 18 occasions between 30 June 2003 and 4 March 2004, Moran attended branches of the Commonwealth Bank in various suburbs of Melbourne and with false documentation opened accounts in false names. He initially used credit cards to withdraw $21,000 and later withdrew a total of $96,400.
20 On Moran’s plea you were nominated as a co-offender.
21 Your dates of your offending do not mirror those of Moran and it is to be noted that the scale of your offending was more extensive than his. Further, in contrast to you Moran had no prior convictions and you were more than 15 years older than him.
22 I turn to your criminal record. You have previously been convicted in the Magistrates’ Court in Queensland in June 1980 of making false pretences. Subsequently you were convicted in the District Court at Brisbane of seven charges of passing a valueless cheque and on 26 May 1997 you were convicted in respect of four charges of defrauding the Commonwealth.
23 This Court was informed that on 21 November 2014, you were sentenced by the District Court in Brisbane upon an indictment containing eight counts of offences involving dishonesty and 11 charges of a summary nature. The offending included the dishonest obtaining of $170,381.63 from Westpac Banking Corporation by obtaining credit cards under fraudulent names. The learned sentencing Judge imposed a head sentence of 6 years' imprisonment and directed that you be eligible for parole after 2 years. A substantial amount of pre-sentence detention was declared.
24 The sentencing remarks reveal that when you were arrested police searched the townhouse in which you lived. They located multiple computers, printers, quantities of identification products made up into kits, documents, mobile phones, a card printer, embosser and stamper. Identities, addresses, business names, payslips and other documents were located which matched the aliases used by you in perpetrating the frauds.
25 You told police that you were working at the direction of accomplices and that you only enjoyed about a 10 per cent benefit from the funds received. When asked about the identity of the persons with whom you worked, you nominated a “Cameron” and a “Warren”. You said that you had met those two people in a pub.
26 Upon the expiry of the minimum term, you were extradited to Victoria in 2015 and have remained in custody since that time.
27 I turn to your personal circumstances.
28 You are now 58 years old. You are of Greek-Cypriot background and migrated to Australia in 1973. You married when you were twenty-one and have five children. In 2003, your wife left you and her children to return to Cyprus. You cared for those children as a single parent and struggled to support your family. Your children are now in their twenties or thirties. Whilst in Australia, you have worked in labouring jobs and when living in Queensland you were employed in a glass factory and as a fibreglass insulator for air conditioning systems.
29 A psychological report has been tendered authored by Ian Mackinnon dated 18 September 2015. Mr Mackinnon notes that after being extradited to Melbourne in April 2015, you have been subjected to a lock-down regime whilst on remand because of the prison riots in 2015. Mr Mackinnon considers that your functional intelligence appears to fall within the normal adult range. You have been assessed as suffering from a Mixed Anxiety and Depressive Disorder. Further, Mr Mackinnon expresses the opinion that at the time you offended in 2003 you were probably suffering from significant depression and anxiety which adversely affected your ability to reason soundly and make competent judgment. The basis for this opinion is not clearly stated. Nor is the basis for the opinion that the primary reason for your offending was your desperation to provide adequately for the welfare of your five children. One might have expected that the expression of such an opinion would be based on more than your narrative and that before such an opinion was advanced, your subsequent offending in Queensland, at a time when your children were adults, would be taken into account. Understandably your counsel, Mr Oldis, did not seek to enliven a number of Verdins principles.
30 A number of matters were relied upon to mitigate sentence. They included:
· your pleas of guilty which have a utilitarian benefit and represent an acknowledgment of wrongdoing;
· partial admissions made by you during the lengthy interview conducted on 17 October 2003;
· some evidence of remorse as demonstrated by the plea of guilty, some admissions and comments made to Mr Mackinnon;
· your significant health issues which make prison more burdensome for you;
· the opinion expressed by Mr Mackinnon that you are not an inherently antisocial criminal and do not pose a high risk of similar offending in the future; and
· your reasonable prospects for rehabilitation based upon your age, ongoing family support and the significant period of imprisonment that you have already served.
31 I consider that little weight can be given to the proposition that you evidence meaningful remorse or that you have reasonable prospects for rehabilitation. Your history is one of entrenched offending and more recently, the many and extended episodes of offending in Queensland undermine any but the most qualified assessment of your future prospects. I accept that your pleas of guilty have a significant utilitarian benefit and I do accept that there is evidence of serious underlying health issues which you confront and which render the service of any sentence to be more burdensome than for a person in better health.
32 Medical records indicate that you have severe coronary artery disease, chronic obstructive pulmonary disease, and dyslipidaemia. In 2008, you experienced a myocardial infarct which required two separate artery stent procedures and in 2012, you had an episode of severe chronic obstructive pulmonary disease. You were assessed as medically unstable and may need to access an Intensive Care Unit at short notice. That you should have engaged in serious offending in Queensland after being treated for major health conditions is surprising.
33 In the course of the plea in mitigation, I drew counsels’ attention to the case of Morgan v R [2013] VSCA 33. It is unnecessary to refer in any depth to the important considerations of totality which were discussed in Morgan. In this Court, counsel did not demur from the proposition that in sentencing you, regard should be had to the total time you have spent in custody in Queensland and the time you have spent on remand in Victoria. As a consequence, this Court is applying the principle of totality notwithstanding that the offending you engaged in in 2003 and that in Queensland were in different jurisdictions and committed at different times. In total, you have now been continuously held in prison for something in the order of two years and 11 months when combining the term you have spent in Queensland together with your pre-sentence detention in Victoria.
34 The length of the sentence to be imposed upon you has been substantially reduced when applying the principle of totality and in recognition of your underlying medical conditions.
35 In respect of the counts of obtaining financial advantage by deception, theft and attempting to obtain financial advantage by deception, you are sentenced to an aggregate term of imprisonment of three years.
36 In respect of the uplifted summary charge of failing to answer your bail in 2004, you are sentenced to a term of imprisonment of three months; two months of that term is cumulative upon previous orders.
37 The total effective sentence is a term of imprisonment of three years and two months. I direct that you serve 19 months of that term before being eligible to be considered for parole.
38 Pursuant to s18(4) of the Sentencing Act 1991, I declare that the period of 340 days that you have been in custody be reckoned as time already served under the sentence passed today and I direct that this be entered into the records of the Court.
39 I make orders for forfeiture, for compensation and for restitution in the terms sought.
40 Further, I make an order for the taking of a forensic sample by way of a buccal swab. I must inform you that the police may use reasonable force to carry out that procedure.
41 Pursuant to s6AAA of the Sentencing Act, I indicate that but for your pleas of guilty, you would have been sentenced to a term of imprisonment of four years and eight months with a non-parole term of three years.
HIS HONOUR: Does anything arise from those orders?
MR DEVLIN: No, Your Honour.
MR OLDIS: No, Your Honour.
HIS HONOUR: Mr Interpreter, can I thank you for your assistance. Can I also thank counsel for their assistance.
MR DEVLIN: As Your Honour pleases.
HIS HONOUR: Yes, can we adjourn the court please.
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