Director of Public Prosecutions v Assaad

[2019] VCC 1816

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-02119

DIRECTOR OF PUBLIC PROSECUTIONS

v

FADI ASSAAD

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	7 November 2019
DATE OF SENTENCE:	7 November 2019
CASE MAY BE CITED AS:	DPP v Assaad
MEDIUM NEUTRAL CITATION:	[2019] VCC 1816

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Z. Menon	Office of Public Prosecutions
For the Accused	Mr T. Danos	Danos Lawyers

HER HONOUR: 

1Fadi Assaad, you have pleaded guilty before me to one charge of falsification of documents.  You have no prior convictions.  The facts underlying your offending are as follows.

2The charge you have pleaded to is a rolled-up charge involving three incidents.  Each of those incidents involved you making a loan application for finance to buy a car, the details of which were false.  The false details were firstly that a particular motor car trader licence was the owner of the vehicle sought to be purchased, and secondly, details were provided of a car which were in fact false.

3Incident number 1 involved purchaser Mr El Masri, who in July 2017 came to you and an application was made in September 2017 to Macquarie Leasing.  The loan application identified a 2010 Audi with a particular VIN engine and registration number.  The loan was approved, $40,000 was transferred to the bank account of one Coburg Quality, which was a motor car trader licence with whom you had previously worked, but with whom at the time you had no association; you were not working for that organisation and neither you nor Coburg Quality had the legal right to deal with the car in question.  Further, the car that was described on the loan was in fact not that car.

4Incident number 2 relates to a second application made again by you to Macquarie Leasing on 4 October 2017.  This application was for a Ms Saad.  A licensed motor car trader Elfar & Co was used.  This was not an organisation with which you had any association and neither Elfar & Co nor you had any right to dispose of the vehicle which was described in the application.  As a result a loan for $34,950 was approved based on the false information.

5Incident number 3 relates to a third application made on 30 October 2017 to Macquarie Leasing.  This application was to purchase a Porsche vehicle again in the name of, so far as the vendor was concerned, another motor vehicle trader with whom you were not involved.  A particular Porsche was identified and a loan $169,990 was approved.  In this third case, Macquarie took out a chattel mortgage over the vehicle.  When the owner of the vehicle sought to sell that car, it was discovered there was, unbeknownst to the owner, a mortgage over the car and a complaint was made and these dealings came to light.

6Ultimately police caught up with you and conducted a record of interview with you on 3 April 2019.  You basically told police that you were putting up deals for Macquarie to approve, but you really made no admissions as to dishonesty.  There was a committal mention and the committal proceeded by way of a straight hand-up brief on 17 October 2018.  There was an initial and final directions hearing, but on 26 September 2019 there was a sentence indication heard and ultimately the plea proceedings went ahead today, being 7 November 2019.  It could not be said this is a particularly early plea, but you have saved the community the time and expense of a trial.

7You are 37 years of age and, as I said, you have no prior convictions.  You came to Australia with your family when you were aged four, in 1986, from Lebanon.  You completed Year 12 at Redden College and undertook a Bachelor of Information Systems at RMIT.  You have a good work history, beginning in 2004 when you worked at the accounts department at a firm called Prestige Motors, where you worked between 2004 and 2007.

8From 2007 to 2009 you worked as a car broker wholesaler with an organisation called Wholesale Car Sales.  Then from 2009 to 2015 you were employed with Automobiles Melbourne as a wholesale broker.  You worked with Coburg Quality Cars in 2016 as a wholesale salesman, but at the time of this offending you were no longer associated with that company on a formal employee basis.

9Following this offending you left the car industry and since May 2019 have been employed by Foster Hydronic Heating as a company service manager. 

10Your counsel informs me that you became involved in this offending as a result of approaches made to you by criminal members of the Lebanese community; however, in relation to the first incident, you had known Mr El Masri for about 15 years.  He needed some money and you sought to assist him in this way by making a false application.

11In relation to the second and third incidents, you were introduced to those persons by a third person who had some criminal weight, if I can put it that way, and you organised for the false applications whereby the applicants themselves received part of the money, the criminal figure received the majority of the money and you received all up about $20,000 in relation to those transactions.

12Whilst you have no formal prior convictions, you were dealt with in October of this year for two charges of obtaining property by deception, which offending occurred in 2015 and related to false documentation in order to obtain financing for cars.  You were fined $2,000.  You have also been charged for allegedly being involved in the obtaining the assurance of a false guarantee in relation to a lease over a property, which matter is being contested.

13You were married in 2008.  You have three children aged nine, eight and six.  You and your wife separated in May 2015 and initially relations between you were poor.  In recent times both your parents-in-law have been diagnosed with serious cancer issues, in particular your mother-in-law.  Your wife has been caught up in caring for both her parents and I received a reference from her as to your actions in supporting her. 

14It appears that on an almost daily basis you pick the children up from school, you give them tea, you do their homework with them, you put them to bed and you often stay the night.  Your wife said that relations have improved very much between you, and that you have been invaluable in assisting her through this difficult time.

15The offending you engaged in was extremely dishonest.  Ordinarily the courts are expected to respond sternly to frauds perpetrated on institutions such as the lending institution involved in this offending, that is Macquarie Leasing.  General deterrence, that is a sentence designed to deter those inclined to behave in the way you have behaved, is expected to dominate the sentencing exercise. 

16Because of your lack of prior criminal history, the fact you have removed yourself from the car industry, that you now appear to be gainfully employed, that you have not subsequently offended as far as records show, that you have a good work history, I was persuaded to have you assessed for a Community Corrections Order, for which you have been found suitable.  You have only just made it into a Community Corrections Order, Mr Assaad, let me make this very clear, and you are not out of the woods yet.

17Whilst you are on the Community Corrections Order, if you commit any further offending you will be brought back in front of me.  I will have the power to re-sentence you for this offending and if you breach this order, I make it very clear, sir, I will gaol you.  Do you understand?

18OFFENDER:  Yes.

19HER HONOUR:  All right.  In all the circumstances, however, I am persuaded that a Community Corrections Order is appropriate.  You do not appear to have any issues with substance abuse or mental health difficulties and I do not propose to deal with you other than by way of imposing fairly severe work hours upon you, which will be carried out over a period of time.  I understand that your hands are pretty full at the moment, but the Community Corrections Order will be lasting for two and a half years, so you will have plenty of time to undertake the work hours that I have required.

20Could you stand up, please, sir.

21Before I place you on a Community Corrections Order I must first gain your consent and therefore I must outline to you the conditions that apply to the order.  They are that you must report to the Community Corrections Office within two working days of the making of this order; that is by Monday of next week.  Whilst on the order you must not commit any offence punishable by imprisonment.  That does not mean you have to be gaoled, but if you commit an offence for which theoretically you could get gaoled, like knocking off a box of matches from Woolworths, that will breach the order.  You will be brought back in front of me and I will gaol you if you are breached.

22You may not leave Victoria without the permission of the Community Corrections Office whilst you are on this order.  You must report to and receive visits from the Community Corrections Office.  You must report any change of address or employment within 48 hours of the making of this change.  You must obey all lawful directions of the Community Corrections Office.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol.  I am going to order that you undertake 250 hours of unpaid community work.  Are you prepared to enter this order?

23OFFENDER:  Yes.

24HER HONOUR:  Yes, thank you very much.  Have a seat, we will prepare the documentation.  Yes.

25MR MENON:  Sorry, Your Honour, may I just make three submissions just in relation to the record.

26HER HONOUR:  Yes.

27MR MENON:  Nothing turns on it, just in relation to incident 2 and incident 3.

28HER HONOUR:  Yes.

29MR MENON:  The invoices were always under the name of Coburg Quality.

30HER HONOUR:  Yes.

31MR MENON:  The companies that were mentioned by Your Honour were the companies that were purchasing the vehicles and made the application.

32HER HONOUR:  Right, thank you.  So I will make a correction that in addition to the first incident the fraudulent activities involving incident 2 and 3 related to a false application said to be made by Quality Car Control, but the companies that I had mentioned were put down as the purchasers of the vehicles.

33MR MENON:  Yes, and the invoice was on Coburg Quality letterhead.

34HER HONOUR:  The invoice was also on Quality Car Control letterhead.

35MR MENON:  Your Honour, the only other matter is a mistake of mine and I apologise.

36HER HONOUR:  Yes.

37MR MENON:  The subsequent matter, rather than on 1 October it should read 1 August 2019.

38HER HONOUR:  Yes.  So the prior matter that I have related to resulting in a $2,000 fine was dealt with by the Magistrates' Court on 1 August 2019.  Thank you.

39MR MENON:  Thank you, Your Honour.  Your Honour, there is an application pursuant to 464ZF.

40HER HONOUR:  Yes, I'll grant that.  Have you got anything to say about that?

41MR DANOS:  No, Your Honour.

42HER HONOUR:  All right.  Thank you.  I am also going to allow police to take a DNA swab from you which will be a saliva swab.  You will be given a list of police stations that you can attend.  You must attend them within 28 days to allow police to take a swab.  I have to inform you that should you refuse to allow this sample to be taken police may use reasonable force in order to obtain it.  Yes, thank you.  Could you give that to your client, thank you. 

43Did I get an application form in relation to that?  It's on the file?

44MR MENON:  Yes.  Yes, Your Honour.

45HER HONOUR:  Have you got the non-custody one?  I've only got a custody one.  Yes, it's been printed on the back of it, so I can't use it.  Can you forward that?

46ASSOCIATE:  I can print it.

47HER HONOUR:  Well, I'll need to sign it and give it to him.  All right, then.  We'll sort that out.  Yes, thank you.  Have you got something there, have you?

48MR MENON:  My instructor informs me that this is a complete copy.

49HER HONOUR:  All right, thank you very much.  We'll use that then, thank you.

50MR MENON:  My instructor informs me the second page is the non-custodial.

51HER HONOUR:  Have we go the list of police stations?  And I need to know which police station he's - it's at Brunswick.  Is Brunswick your closest police station, Mr Assaad?

52OFFENDER:  Yes.

53HER HONOUR:  All right.  Well, I'll sign it as it is.  It's got all the material about going to Brunswick.  All right, I'll hand that to you.  Thank you very much.  Yes, thank you, we will adjourn.

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