Director of Public Prosecutions v Athanasiadis
[2018] VCC 1445
•5 September 2018
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR 18-007198
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CONSTANTINOS ATHANASIADIS |
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JUDGE: | HER HONOUR JUDGE QUIN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 5 September 2018 | |
CASE MAY BE CITED AS: | DPP v Athanasiadis | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1445 | |
REASONS FOR SENTENCE
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Catchwords: Obtain property by deception
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr D. Brown | OPP |
| For the Accused | Ms P. Marcou | Markotich Lawyers |
HER HONOUR:
1 Constantinos Athanasiadis, you have pleaded guilty to three charges of obtaining property by deception. The maximum penalty for this offence is ten years. Charge 2 relates to an amount of $100,000, so qualifies as a continuing criminal enterprise offence pursuant to s.6H of the Sentencing Act though the maximum penalty remains ten years.
2
You met Harvey Jimenez when you were both parents at your respective children's school. On or around 19 May 2017 you contacted Mr Jimenez and told him that you had an opportunity for an investment in a short term loan.
Mr Jimenez was to provide the funds to you for on-lending to your client and interest was to be paid above ordinary rates.
3
On 23 May 2017 you gave Mr Jimenez signed loan documents that had in fact been prepared and signed by you which included false client details.
Mr Jimenez provided the funds by both cash and bank deposit into your account in the amounts of $30 000 and $20,000. That relates to Charge 1 which is a rolled up count of obtain property by deception $50,000. You told Mr Jimenez that you would provide a further $50,000 to make up a $100,000 loan.
4
On 26 May 2017 three days later, a similar agreement was reached with
Mr Jimenez for two other alleged clients. The amount of this loan was to be $200,000 with you each providing $100,000. Again it was expected that interest would be charged above the commercial rate. As with the previous transaction, you provided loan documents to Mr Jimenez that were purportedly signed by your clients, though you had in fact signed them yourself. Mr Jimenez transferred $100,000 to your account. That is Charge 2, obtain property by deception.
5 When the due date for interest and repayments of the loans arrived, Mr Jimenez made numerous attempts to contact you to retrieve his money only to be stalled and ignored by you. A number of text messages are included in the depositions. He reported the matter to the police on 23 August 2017 and has not been able to recover any of his funds.
6 You also knew Peter Jaman through contact at your children's school. On 17 June 2016 you approached Mr Jaman at his work. You had with you a signed loan document for an alleged client for $100,000. Interest was to be above commercial rates and you told him you would provide $60,000 if he provided $40,000. By 20 June Mr Jaman had transferred $40,000 into an account in your name. Towards the end of July 2016 you sought an additional $12,000 from Mr Jaman, allegedly for the same client. These additional funds were transferred into your account by him.
7 Nine months later in April 2017, you again approached Mr Jaman to provide $30,000 for another short term loan. He now does not recall the name of the alleged borrower though he transferred that sum into your account. You told him you would draw up the loan documents but they were never forthcoming. You made a similar request to Mr Jaman in June 2017 for $15,000 and he transferred those funds to an account in your name.
8 Aside from receiving the odd amount, none of these loans were ever repaid. In April 2017 you told Mr Jaman that the original loan had been rolled over into another contract in the sum of $52,000 for a person known as David Grant. You provided a new contract and Mr Jaman signed it.
9 Each of these above transactions between June 2016 and June 2017 were deceptions committed on Mr Jaman by you and in total you obtained $97,000 by falsely representing that this money was to be lent to bona fide borrowers. You forged documents to facilitate the deception and none of this money has been recovered by Mr Jaman. That is Charge 3 which is a rolled up charge of obtaining property by deception.
10 I received victim impact statements from Mr Jaman and Mr Jimenez. They were both read by the prosecutor and Mr Jimenez attended court. See Exhibits B and C. Both of these businesses have suffered significant financial damage. In respect of Mr Jimenez his children have also suffered given the connection of you to the school where his children attended. Emotionally the family have suffered, unfairly perceived to be the troublemakers by others in the school community. Your deception has caused Mr Jimenez sleeplessness, anxiety, embarrassment and feelings of guilt.
11 Mr Jaman reveals that he and his family have suffered in many ways. Your breach of trust has meant they have struggled emotionally and financially. They are suffering anxiety and concern regarding their financial security and stability for the future. Your actions have clearly had a significant impact on the lives and security of honest, hardworking small business owners and their families who trusted you as a friend.
12 I was provided with a report from Patrick Newton, clinical forensic psychologist dated 17 August 2018, Exhibit 1. And from Suzy Adler, therapeutic counsellor dated 14 August 2018. I was also provided with medical material relating to your wife and daughters and character references from your employer and wife. I take all that material into account.
13 You are currently aged 51. You have one sister and your parents immigrated to Australia from Greece in the mid 1960s. You had a normal and happy childhood with both parents working hard and your grandmother assisting with your care. You have a good relationship with your sister and parents with whom you are currently residing. Your father, sister and other friends were in court to support you. You learnt English in primary school though Greek is your first language. You successfully completed Year 12 at Salesian College and you then completed a Bachelor of Arts. You have had a range of jobs since graduating, working in a finance company, operating a pub, and operating a business with your wife in children's sport. Whilst operating this business you continued to work in the finance sector referring clients to mortgage and other finance brokers on a commission basis. It was through this work that the offending occurred. Since being charged you have worked in the construction industry as a labourer.
14 You met your wife in 1986 and have been married since 1990. You have two children aged 17 and 19. They were all in court and remain supportive of you. Your wife suffers from a range of health problems including fibromyalgia and depression. Additionally your daughters had significant health issues. (See report of Dr Nick Stragalinos dated 20 August 2018). You and your wife separated in 2017 after you were charged with these matters though you remain in communication with each other. I was informed that you were living separately each with your respective parents and that you were required to sell the family home, the proceeds of which in excess of $1m all went to the bank in June 2018.
15 This offending has been explained by your addition to gambling. You commenced betting on horses when you were aged about 16. This developed into more a problem in about 2012 and again in 2015. Your offending occurred in the context of increased personal stressors and mounting business debts. Inevitably you accrued substantial losses. Like many others in that situation rather than desist, you increased your gambling borrowing money from friends in a desperate attempt to recoup your losses.
16
Once you had revealed your offending to our family and Mr Jimenez, you consulted Ms Suzy Adler, therapeutic counsellor at Gamblers Help in August 2017. Your first contact with Ms Adler was in October 2017 and you attended on three occasions on the first week. There was however no further face to face contact until March of this year. You indicated to her that you were no longer gambling and that you had work commitments which now served to distract you from gambling. I note that she indicates in her report that very little of your contact was focused on actual gambling related treatment and that
Mr Newton is of the view that further treatment for your gambling is clearly indicated. Your counsel did not suggest otherwise.
17 Apart from expected or normal range stress and anxiety at both the time of this offending and regarding your current situation, you have no history of mental illness other than in relation to gambling. You have never had issues with drugs or alcohol. You have no prior criminal history. As revealed in the material tendered on your behalf, you are apart from this offending, otherwise of good character. I accept that you have been a good and caring father and made a valuable contribution to your local community.
18 Your counsel explained your offending on the basis of your gambling addiction that existed at the time of the commission of the offences. Mr Newton was of the view you were suffering from a severely pathological gambling problem. He describes you at the time of the offending as being oblivious to the behavioural statistical and economic realities of gambling and that you engaged in superstitious rituals by which you hoped you might garner divine favour to skew the odds in your favour. Mr Newton is of the opinion you met the DSM-5 criteria for a gambling disorder though he notes that your arrests seems to have broken the compulsive cycle which maintained your gambling.
19 Your counsel did not submit that the principles in Verdins were enlivened on the basis of this opinion. Rather it was submitted that although such a diagnosis does not excuse your conduct, it provides a context or explanation for it.
20 As noted by Justice Redlich in Grossi [2008] VSCA 51 at 56, the relevance of such a disorder to the sentence to be imposed will generally not on that basis alone result in an appreciable moderation of the sentence. He notes:
‘The disorder will not generally be directly connected to the commission of the crime, the addiction providing only emotive and explanation for its commission. Hence by contrast and mental condition that impairs an offender's judgment at the time of the offence, such addition will generally be viewed as only indirectly responsible for the offending conduct.”
21 You took advantage of your friends and continued to do so over a period of 12 months with Mr Jaman. You made the choice to approach and deceive both of them. I accept that your offending was not to finance a high lifestyle or greed, these aggravating features do not exist. I view your gambling addiction as part of the context of your offending. It does not however reduce to a significant degree your moral culpability or general deterrence. Clearly there is a need to deter you from further offending and to denounce your conduct. I will refer to specific deterrence again later in these reasons.
22 I accept that you of your own volition revealed your offending to your family and confessed to Mr Jimenez your wrongdoing. It was Mr Jimenez who contacted the police who then became involved. You have indicated an intention to plead guilty to these matters when these matters were first at court. I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit. Neither of your victims were required to give evidence at any stage during these proceedings and you have save the community the significant costs associated with running a trial. I accept your plea is also indicative of remorse. You told Mr Newton,
"I am truly disgusted in myself. These people were friends and good families. I should never have put them in that situation and so have them suffer along with their children. They don't deserve to be in this situation. Knowing the suffering and emotions my own family is going through I sit there and think what they would be going through and how it's affected their lives. It's not right and it's not fair on them. I stress about the situation I have put them in and I can't apologise enough."
23 Also consistent with remorse your counsel submitted you were intending to repay the funds. I accept that you legitimately hope to be able to do so though you have not thus far been able to manage any repayments.
24 Your counsel submitted there were features that augured well for your rehabilitation. You retain the support of your family, your plea of guilty, remorse and acceptance of responsibility of your actions, that you have no prior convictions and were otherwise of good character, that you have a strong work ethic and have continued to work labouring for long hours since charged with these matters, that you voluntarily sought assistance with your gambling problem. However I note that Mr Newton is of the view you still require professional counselling or treatment to overcome those issues.
25 Your counsel submitted your rehabilitation prospects were very good. Counsel for the prosecution conceded your rehabilitation prospects were reasonable though dependent on you properly engaging with treatment. Mr Newton noted your insight into issues associated with your gambling including behavioural modification and relapse prevention remain very limited. There is in his view a clear need for you to engage with further counselling and education directly targeting your problem gambling, and that the sooner this takes place the more effective it's likely to be.
26 I accept your prospects are reasonable. But clearly you require further professional assistance in overcoming your gambling addiction that led to this offending. I accept that the impact of this offending on your family relationships and your own financial security in addition to your rehabilitation prospects and lack of prior convictions are such that the principles of specific deterrence are moderated.
27 There were some aggravating features of your offending. The amount of your fraud was significant, $247,000. The impact of each of your victims and their family cannot be overstated. Their lives and financial security have been severely affected. General deterrence has an important role to play. Your gambling addiction does not reduce the operation of this as a sentencing factor. Just punishment and community denunciation of your conduct are also applicable in the sentencing exercise.
28 The prosecution submitted this offending warranted an immediate term of imprisonment but conceded that a term of imprisonment and a Community Correction Order to be completed at the end of that term was within the range of sentencing options available to me. Your counsel argued that a Community Correction Order could meet all relevant sentencing considerations and I have received a favourable report from Corrections.
29 You exploited the trust placed in you by your friends with what you persuaded them was a legitimate business proposal. The impact of your deception on both your victims has been great. Their financial security has been threatened and they have had difficulties absorbing the loss that your actions caused. The impact of these victims is greater than that suffered by large organisations often the subject of fraudulent behaviour. The amount of funds and duration of your offending should be viewed in that context. Your conduct must be strongly denounced and just punishment imposed. Others must be deterred from engaging in such activity.
30 These considerations along with the objective seriousness of this offending must be balanced against the matters in mitigation outlined above. Taking all relevant sentencing considerations into account, and on consideration of the Court of Appeal decision in Boulton, I am not persuaded that a Community Correction Order alone is an appropriate disposition. Rather I propose to impose a term of imprisonment with a Community Correction Order to be completed at the end of the term.
31 If you could please stand.
32 In respect of Charge 1, you are convicted and sentenced to a term of imprisonment of three months.
33 In respect of Charge 2, you are convicted and sentenced to a term of imprisonment of six months.
34 In respect of Charge 3, you are convicted and sentenced to a term of imprisonment of four months.
35 The base sentence then is the sentence imposed in respect of Charge 2. Two months of the sentence imposed on Charge 3 is to be served cumulatively on the sentence imposed on Charge 2 making a total effective sentence of eight months.
36 I require you to enter into a Community Correction Order at the expiration of the period of eight months for a period of 12 months. That order will include a condition regarding gambling, treatment and also supervision from Corrections.
37 The report from Corrections indicated you consent to the making of a Community Correction Order. I am required to inform you that if you commit another serious offence for the duration of that Community Correction Order, or fail to abide by any of the conditions imposed, you may be subject to breach proceedings and I may have to sentence you again for these matters.
38 Pursuant to s.464ZF of the Crimes Act, you are required to provide a sample. I make that order because it was indicated that that order was consented to.
39 I am required to inform you that if at the time of the request for the scraping of a mouth sample or blood sample you do not consent, an authorised member of the police force may use reasonable force to ensure the sample is obtained.
40 Two compensation orders were handed up to me in relation to both of your victims. For Mr Jimenez in the sum of $150,000 and for Mr Jaman in the sum of $97,000 and I make those orders.
41 Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to these matters I would have imposed a term of imprisonment of three years with a non-parole period of 22 months.
HER HONOUR: Is there any other matters?
MS MARCOU: No Your Honour.
MR BROWN: No Your Honour.
HER HONOUR: Thank you. There are those orders Mr Brown. Ms Marcou once that's done you may want to go down with my associate to have the CCO signed thank you.
MS MARCOU: I'll do that Your Honour.
HER HONOUR: Thanks. Thank you, I'll just stand down
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