Director of Public Prosecutions v Anukur

[2018] VCC 1783

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00850

DIRECTOR OF PUBLIC PROSECUTIONS

v

ANKUR ANAND

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	23 October 2018
DATE OF SENTENCE:	31 October 2018
CASE MAY BE CITED AS:	DPP v ANUKUR
MEDIUM NEUTRAL CITATION:	[2018] VCC 1783

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW
Catchwords:  Obtain Financial Advantage by Deception
Legislation Cited:  Sentencing Act 1991
Cases Cited:

Sentence:Convicted and placed on a community corrections order for a period of three years and fined $75,000.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr S. Devlin	Director of Public Prosecutions
For the Accused	Mr P. Tiwana	Dribbin & Brown Criminal Lawyers

Pages 1 - 13

 

 

HIS HONOUR: 

1Ankur Anand, on 23 October 2018 you pleaded guilty to three charges on the indictment No.H12081632.  Each of the charges were separate counts of obtaining a financial advantage by deception.  The offending by you is part of a continuing criminal enterprise and due to the operation of s.61 of the
Sentencing Act 1991, the maximum penalty for each of the three charges is 20 years' imprisonment. The prosecution concede that you are entitled to the benefit of an early plea of guilty. Your formal plea of guilty was taken on 16 July 2018.

Circumstances of Your Offending

2You were 35 to 36 years old at the time of these offences.  You are now 39 years old.  Between 24 October 2014 and 2 July 2015, you were employed by the Australian and New Zealand Banking Group Limited (“ANZ”) as a home investment lending manager at the Highpoint branch.  Your role involved interviewing customers, collecting supporting documents and submitting suitable applications to the ANZ lending department for credit assessment.  You were paid a salary with the ability to receive a bonus if sales targets were exceeded.  The business model and your remuneration model, giving rise to the bonus system had been the focus on the Royal Commissioner Hayne at the Banking Inquiry. 

Charges 1 and 2:

3Between 24 October 2014 and 29 May 2015, you were involved in the processing of 20 home loan applications which were approved by the ANZ based on false documentation or false information provided in the applications.  In relation to each of the 20 applications, the applicants were introduced to the ANZ bank by your co-accused, Rama Akkala. 

4The false information contained in the applications variously included information regarding either the purchase price of the properties, the deposits said to have been paid, the financial position of the applicants and/or the real estate agents involved in the transactions. 

5The agreed basis of your plea is that in relation to each of the 20 home loan applications, you completed the details on the personal statement of financial position forms that were part of the applications and entered inflated figures in relation to the savings, superannuation or shares owned by the applicants. 

6It is accepted by the prosecution that you did not know that the figures provided in relation to the income of the applicants was false, nor did you know that any knowledge or have any knowledge that the payslips provided in support of the applications were false. 

7Eight of these home loan applications were approved in 2014, which are the subject of Charge 1, a rolled up charge of obtaining financial advantage by deception.  The remaining 12 of these home loan applications were approved in 2015, and are subject of the Charge 2, another rolled up charge of obtaining financial advantage by deception.  In total, the ANZ provided credit facilities amounting to $6,559,712.44 as a result of the approval of the 20 home loan applications the subject of Charges 1 and 2.

8You were not paid any money by your co-accused, Rama Akkala, Sheree Becker, or Erdan Hassan in relation to these home loan applications.  You accept that you did receive an increase in your bonuses during the period in the order of $5000 due to these home loan applications increasing the total you would otherwise have processed.

9The prosecution tendered an Appendix A which was part of Exhibit “A”.  The Appendix A had a list of the circumstances of each of the transactions and the 20 home loan applications the subject of Charges 1 and 2.  I will not repeat them here. 

Charge 3:

10In 2015, you sold two properties that you owned to buyers to whom you were introduced to by your co-accused, Rama Akkala.  Charge 3, is also a rolled up charge of obtaining financial advantage by deception in respect of the two home loan applications related to these transactions.  In each case, the contracts of sale for the transactions including information that you knew to be false, you did not personally process the home loan applications for the purchases for these two properties, but were aware that the false information in the contracts of sale would deceive the ANZ into approving the applications, in circumstances where they would not have otherwise done so.

11The two properties were as follows: 

24 Carramar Drive in Melton West

12In early 2015, you owned the property at 24 Carramar Drive in Melton West.  You had purchased the land for $135,000 to $140,000 then built a house on it for $210,000.  You had been told by the real estate agent that the property would be worth between $380,000 and $425,000. 

13On 27 February 2015, Scott Syddall entered into a rent to own contract for the purchase of that property at 24 Carramar Drive in Melton West through your co-accused, Ms Becker, but pulled out of that deal after becoming worried about the level of repayments. 

14A couple of days later, Mr Syddall was contacted by your co-accused, Mr Akkala who said he was acting as a broker for the sale of the property.  He said that he could cut Ms Becker out of the deal and that they could go directly to the bank and lower the price to make it more affordable.  Mr Akkala told Mr Syddall that if he came up with $2,000 within 30 days then he would get the property.  They would then go off to the ANZ Highpoint branch to apply for a home loan. 
Mr Akkala said Mr Syddall was $30,000 short of what the bank was going to loan him and asked if there was anyone else who could provide that money. 
Mr Syddall asked his 19-year-old son, Tyson Syddall, who then applied for a personal loan for that purpose.

15On 10 March 2015, an application for a home loan in the name of Scott Syddall was submitted through the ANZ systems by Guarav Khanna.  The contract of sale for the property was $420,000, which was included as part of the application.  It had been signed both by yourself and Mr Syddall and listed your real estate agents as Raine & Horne at Melton.  A letter of offer was made by the ANZ bank to Mr Syddall on 12 March 2015.  Mr Kieran Carson who is a director and officer in control of Raine & Horne at Melton confirmed that his firm did not act on behalf of you in the sale of 24 Carramar Drive in Melton West.

16On 16 March 2015, Mr Syddall went to the ANZ Highpoint branch with Mr Akkala and they met with you.  You gave him the paperwork to sign which he did and told him everything was right to go.  Mr Syddall's home loan application was approved by the ANZ bank on 25 March 2015, and a home loan account opened in his name.  The sum of $387,225.21 was disbursed from the approval of this loan.  If the ANZ had been aware that any of the information provided to support the application was false or misleading including the contract of sale, the ANZ would not have approved of this application.  You knew that by listing
Raine & Horne as your agents in the contract of sale that the transaction would be treated by the ANZ as a non-market sale, and that the sale price of $420,000 would be used in processing the application in lieu of a full valuation. 

17On 10 August 2015, a kerbside valuation of the property was undertaken by Opteon Victoria Pty Ltd (“Opteon”) which returned a value of $330,000.  Your counsel there urged me to exercise caution when considering the kerbside valuation of $330,000 by Opteon.  I note that you agree you received a deposit of $42,000 in this transaction.  The home loan dispersed amount was $387,225.31.  The young 19-year-old son of the purchaser Tyson Syddall was saddled with a personal loan of $30,000.  This transaction was a deceit on your employer all for a financial benefit to yourself achieved by selling your property for the top of the market value at $420,000.

18Two days after the loan application was made by the purchaser for the Carramar Drive property, you purchased 11 Jolley Rise in Melton West for $290,000. 

11 Jolley Rise in Melton West

19I will now turn to the offending in respect of 11 Jolley Rise in Melton West.  Jay Baldacchino worked for your co-accused, Ms Becker, for a period of just under six months in 2014.  Throughout her employment, she was introduced to your other co-accused, Rama Akkala, who Ms Becker said was a very good broker.

20On 12 March 2015, you bought the property at 11 Jolley Rise in Melton West for $290,000.  Later in 2015, when Ms Baldacchino was no longer working for Ms Becker, she contacted Mr Akkala as she and her boyfriend Lance Borg, were interested in buying a house.  Mr Akkala told her that he had a friend who was wanting to sell and they met at your house at 11 Jolley Rise in Melton West together with Mr Borg and their children.  You were still the owner of that property at that time.

21Mr Akkala advised the sale price was $365,000 which was negotiable. 
Ms Baldacchino thought it was a reasonable price but had doubts about whether they could afford to pay for that on Mr Borg's income.  Mr Akkala told them they needed $5,000 as a deposit.  Ms Baldacchino gave Mr Akkala the payslips for Mr Borg and their banking statements.  Mr Akkala arranged for them to go to the ANZ Highpoint branch where he met them but got them to wait outside.  He came out with the documents, did not explain anything to them and just told them where to sign.

22A joint application by Ms Baldacchino and Mr Borg for a home loan from the ANZ was submitted by Mohammad Hafeez through ANZ systems on 29 May 2015.  The contract of sale of the property was included as part of that application which set out that the sale price was $425,000 and a deposit of $42,500 had been paid.  It had been signed by you, Ms Baldacchino, and Mr Borg.  As referred to earlier, the agreed price was in fact $365,000 and the deposit paid was $5,000.  This resulted in ANZ assessing the application for a home loan with a false picture of the loan to value ratio; had the true figures been used, the application would not have been granted. 

23Ms Baldacchino and Mr Borg's home application was approved by the ANZ bank on 2 July 2015, in a home loan account opened in both their names.  The sum of $354,767.67 was disbursed to the approval of this loan.  If the ANZ had been aware that any of the information provided to support the application was false or misleading including the sale price and the amount of the deposit in the contract of sale, the ANZ would not have approved the application.

24In your record of interview, you admit to making $20,000 from this transaction.  The gross difference between the two purchase prices is $75,000 (i.e. $365,000 (the real price) minus $290,000 the purchase price.  There is no evidence led in this case to justify the $55,000 transactional costs for your property investment between March and May of 2015.  Your direct benefit from this dishonest action by you was more than $20,000 and less than a total of $75,000.

25The total of your offending and that of your co-accused Rama Akkala and Sheree Becker from Again investments and Erden Hassan from Erden Properties came to police attention in July 2017. 

26On 21 July 2017, you attended at the Footscray police station by appointment.  You were interviewed by the informant, Mr Shearer and during that interview you stated as follows: 

(1) That you first introduced to Rama Akkala by the branch manager of the ANZ Highpoint branch.  You did not go out and source him.  You were told Mr Akkala was being signed up as an introducer for the ANZ;

(2) Most of the people Mr Akkala referred to you, came through Erdan Properties or Again investments;

(3) You would initially receive personal statements of financial position from loan introducers, when you started at the branch which you had then checked with the clients, however, four or five months later, there were changes at the bank, which meant they could not accept the documentation from the introducers;

(4) You then were asked about the personal statements of financial position that were submitted as part of the home loan applications that are the subjects of Charge 1 and 2.  You admitted that you had filled in the forms, but stated the information included in them had come from the applicants themselves;

(5) That you were asked about the property that you had sold at 11 Jolley Rise in Melton West.  You said you had bought the property through a real estate agent, and held it for two months.  You had acknowledged that there was a rebate to be paid to the purchaser at settlement, which the bank were not aware of in the application.  It would make the applicant appear to be in a better financial position.  You stated you made about $20,000 from that transaction;

(6) That you were then asked about the property you sold at 24 Carramar Drive in Melton West.  You acknowledge that you had been unable to sell the property through Raine & Horne, and that you then sold it through Mr Akkala.  You said that you were not involved in the home loan applications;

(7) You denied that you had done anything wrong, or made any money out of these transactions.  You did not know that what Mr Akkala or the real estate agent had made out of it.

Personal Circumstances

27You are now 39 years old.  You are a married man.  You are the father of two boys aged seven and ten months respectively.  Your wife is full-time engaged in looking after your children.  Your wife had previously worked for Sportsbet.

28At the time of your plea and since September 2015, you have been conducting a business which imports furniture from India and China.  Your business, “Studiored Lifestyles” is based at a warehouse in Hoppers Crossing. Your furniture business sells directly to the public and to other retail outlets.  You work six days a week

29You are a person of previous good character as you have no prior criminal history.  I have noted the character references from Nidi Ankur Anand, who is your wife, Dinesh Joshi, who is your conveyancing lawyer and, Sandeep and Shalini Kumar who are your friends. Each of these people speak highly of your trustworthiness, your dedication to your family, and your charitable work for people less fortunate than yourself. These references were Exhibit “1” on the plea. 

30You were born in Indore, India.  Your father ran a manufacturing business.  He passed away when you were 13 years old.  Together with your older brother and mother, you moved to live with your maternal grandfather.  Your own mother died when you were 20 years old.

31You completed Year 12 in 1996 and subsequently graduated in 1999 with a degree in Business Administration in India.  In 2004, you came to Australia on a student visa.  You completed a two year Master's degree in accounting at the Melbourne Campus of Central Queensland University.  You became an Australian citizen in 2010.  You married your wife in India in January 2006, and she came to Australia in 2007.

32In your early time in Australia, you worked in the petrol stations.  From December 2007 to January 2009, you worked as a sales team leader at Telstra.  By January 2009, you commenced work for Commonwealth Bank of Australia in a call centre operation, selling bank products until December 2012. 

33In December 2012, you commenced your employment with the ANZ bank.  Initially, you worked as a leading specialist in a call centre until May 2014.  By May 2014, you moved to the Highpoint Shopping Centre branch, where the offending occurred.  You resigned from the ANZ bank in September 2015.

34It is now over three years since your offending.  You have been on bail and whilst on bail you have been allowed to return to India for a family wedding.  An affidavit sworn by you on 20 July 2018 set out the basis for the variation of your bail conditions, including reference to your financial and business ties in Australia.  This affidavit and its contents were canvassed during your plea, particularly with respect to your current financial circumstances. 

35You have given an undertaking to this court to give evidence in the trials of co-accused persons consistent with your sworn statement to the police dated 14 June 2018.

Sentencing Considerations

36The basic purpose for which a court may impose a sentence of just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In sentencing you, I must have regard to a range of factors, such as the seriousness of your offending, your culpability for it, and your personal circumstances. 

37I am also required to balance the interests of the community, in denouncing your criminal conduct with the interests of the community in seeking to ensure as far as possible, that you as an offender are rehabilitated and reintegrated into society.

38I am also required to take into account current sentencing practices, in fixing your sentence.  That inquiry is directed particularly but not exclusively to the kinds of sentences imposed in comparable cases and the statistics for those sentences.  I have considered the statistics and current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed, they are from one another.

39I note that current sentencing practices, are only but one of the considerations I take into account.  I am also mindful of the Sentencing Act, in particular
s.5 (4C), which directs that a sentence in court to consider whether a community corrections order can achieve the purpose for which a sentence is to be imposed. 

40I have reviewed the case of Bolton, in considering if a community corrections order would be appropriate in your case, and I have had you assessed for that community corrections order.  You have been assessed as being suitable for a community corrections order but that is not the end of the matter.

41You have pleaded guilty to this charge.  Your plea of guilty was indicated at any early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is an assertive outcome, and the resolution of substantive issues raised by your offending.  Your plea allows for the preservation of the court, and for police resources to deal with other matters.  Your plea indicates the public confidence in the legal process, set up to protect the community.

42Your plea is also a clear acknowledgement by you, that you accept your responsibility for your criminal behaviour on this occasion.  Your plea also recognises you are willing to facilitate the course of justice in the community, and I accept that your plea to these charges, indicates and demonstrates some remorse on your behalf. 

43I accept that your remorse is genuine.  You have brought shame upon your family and broken your own code of conduct. I have had the advantage of observing you in court and accept that while some of your emotional responses related to the uncertainties of your immediate future, your reaction to these offences is also genuine remorse.

44You have given an undertaking to this court to give evidence in accordance with your statement dated 14 June 2018 at the trials of your co-accused.  The statement was Exhibit “B” on the plea.  The extent of the sentencing discount for such an undertaking depends upon all the circumstances of the case. In this case your evidence will be the admissible evidence that really connects your co-accused to the offending.  Your readiness to give evidence may result in your co-accused pleading to the offending, thus avoiding the cost of a trial in their cases.  I assess the informers discount to be considerable but not of the highest order

45In your case, the informers discount is reflected in the sentence for
Charges 1 and 2, where instead of a term of imprisonment being the sentence a community corrections order is to be imposed.

46The issue of delay is a factor in your sentencing.  The offending occurred three years ago.  The immediacy of a court case has only been relevant since the police interviewed you in July 2017.  In the period since the offences, no further offending has occurred.  Your rehabilitation has been ongoing through your conduct of a business since September 2015.  You have continued with your family responsibilities and since the birth of your youngest child, you are the sole breadwinner in the household.

47Your rehabilitation is to be encouraged in the sentencing process.  The seriousness of your offending is informed by the following factors:

(1) The offences are part of a continuing criminal enterprise;

(2) The offending continued for a period of seven months, from October 2014 to May 2015;

(3) You have breached the trust of your employer;

(4) You have breached the trust of your employer's clients, your clients;

(5) There was a total of 22 separate loans that your offending affected;

(6) In respect of two properties, the subject of Charge 3, you admit in your statement to police, that you obtained inflated prices for your properties over market prices.  You were able to do this by virtue of your position at the ANZ bank and your dealings with the co-accused;

(7) Your practice of inflating the savings, superannuation, and shares on the loan applications, indirectly attacks the confidence of consumers to get loans on a fair dealing basis.  In short, can they afford the loans.

48I assess your prospects of rehabilitation as good.  A community corrections order will enforce a continuing path of rehabilitation by supervision, plus punishment through unpaid community work condition.  Your offending was motivated by greed.  That is evident from your pursuit of bonuses through the loan application offences in Charges 1 and 2. 

49You agreed it is more readily apparent in your offending for Charge 3. You stood to make greater financial returns from the sale of your two properties through manipulating higher loan applications, so that your property prices could be inflated above the market price. The appropriate sentence for
Charge 3, is a significant financial penalty to mark out the sentencing considerations, of general and specific deterrence, denunciation of your conduct, and just punishment.

50Would you stand please?

51On Charges 1 and 2, you are convicted and placed on a community corrections order for a period of three years.  The conditions of the community corrections order are as follows: 

(1) You are to be supervised;

(2) you are to perform 300 hours of unpaid community work;

(3) you are to attend for judicial monitoring at 9.30 am on 30 January 2019;

(4) you are to attend the Werribee Community Corrections centre within 48 hours of this order.

52In respect of Charge 3, you are convicted and fined $75,000. 

53Pursuant to s.6AAA, I am to declare that but for your plea of guilty, what the sentence would otherwise have been.  The sentence, but for your plea of guilty would have been four and a half years, with a non-parole period of three years imprisonment. 

54I have ordered that you are to provide a forensic sample, that is, under s.464ZF and I will just explain to you what that is.  You are attend at a police station nearest to you and present yourself for the purpose of taking a swab.  What they do is they take a swab from your mouth, and they are authorised to use reasonable force if you do not comply with them.

55MR DEVLIN:  As Your Honour pleases.

56HIS HONOUR:  Was there anything else?  Stay for the payment of the fine.

57MR TIWANA:  Yes, Your Honour, and also the six triple ‑ ‑ ‑ 

58HIS HONOUR:  Yes, four and a half years with three minimum.

59MR TIWANA:  Sorry, I missed that.  Sorry.

60HIS HONOUR:  It is four and a half years.  This is over the whole lot.

61MR TIWANA:  Yes.

62HIS HONOUR:  Four and a half years with a minimum of three.

63MR TIWANA:  Thank you.

64HIS HONOUR:  Yes. 

65MR TIWANA:  Thank you.  Can I just some instructions on the financial penalty.

66HIS HONOUR:  Yes, certainly.

67MR TIWANA:  Your Honour, he requests 12 months to pay the fine.

68HIS HONOUR:  I will give him three.  I will give him a stay of three months.  I will manage the fine payment.  I will manage the fine payment, not leave it in Fines Victoria.

69MR TIWANA:  Yes, he will be before Your Honour on 30 January.

70HIS HONOUR:  Correct.

71MR TIWANA:  Yes.

72HIS HONOUR:  You have got a stay of three months for payment of the fine.

73MR TIWANA:  Yes, thank you.

74MR DEVLIN:  As Your Honour pleases.

75HIS HONOUR:  Yes.  I will get a copy of the s.464ZF, so he knows what he has to do and what it is, and also there is the community corrections order.

76MR TIWANA:  Yes, Your Honour.

77HIS HONOUR:  Thank you.  You can attend to that.

78MR TIWANA:  Yes, Your Honour.

79HIS HONOUR:  Thank you.  I will have a copy of that order made, so that your client has one.

80MR TIWANA:  Yes, Your Honour.

81HIS HONOUR:  I thank both counsel and their instructors for their assistance in this matter.

82MR DEVLIN:  Thank you, Your Honour.

83MR TIWANA:  Thank you, Your Honour.

84HIS HONOUR:  You can step out of there, Mr Anand.

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