Director of Public Prosecutions v Bacon
[2019] VCC 220
•1 March 2019
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-18-02006
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CAMERON LESLEY BACON |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2019 | |
DATE OF SENTENCE: | 1 March 2019 | |
CASE MAY BE CITED AS: | DPP v Bacon | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 220 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Soliciting a secret commission – receiving a secret commission – obtain financial advantage by deception – attempt to obtain a financial advantage by deception – perjury – hardship – position of trust – no actual impact of perjury on justice system – no prior convictions
Legislation Cited: Sentencing Act 1991 (Vic)
Sentence: Community Correction Order for a period of 2 years
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | Office of Public Prosecutions |
| For the Accused | Ms Z. Garde-Wilson | Garde-Wilson Lawyers |
HER HONOUR:
1 Cameron Lesley Bacon, you have pleaded guilty to one charge of soliciting a secret commission, which carries a maximum penalty of ten years’ imprisonment; three charges of receiving a secret commission which also carries a maximum penalty of ten years’ imprisonment; one charge of obtain financial advantage by deception, which carries a maximum penalty of ten years’ imprisonment; two charges of attempt to obtain a financial advantage by deception, which carries a maximum penalty of five years’ imprisonment; and one charge of perjury, which carries a maximum penalty of 15 years’ imprisonment.
Circumstances of offending
2 The circumstances of your offending are set out in the agreed Summary of Prosecution Opening for Plea and I sentence you on the basis of the facts set out in that document. I summarise those facts very briefly here.
3 During the period of offending (12 May 2017- 12 September 2017), you were 40 years old and living with your family at Wyndham Vale. You were employed as a finance broker by ‘Yes Insurance Group’ which operates as ‘Yes Finance’. You were the only finance broker within the company, and your duties were to assist existing clients with obtaining finance for assets which ‘Yes Insurance’ would subsequently insure. On occasion, with approval from your employer, you were permitted to assist non-insurance clients with finance arrangements.
4 You came to know your co-accused, Brandon Scicluna, prior to March 2017. Scicluna had failed numerous times to obtain finance through ‘Yes Finance’ due to his poor credit rating. You told him he would have to clear his debt first before applying further. Scicluna had sold a jet ski to Jake Carrigg. He told you that Carrigg was his friend, who wanted to buy a motorcycle, and asked you to check his credit rating. You did so. On 12 May 2017, you requested payment of $200 from Scicluna to settle the finance for Mr Carrigg’s purchase. This is the subject of Charge 1. You also told Scicluna that there was a charge of $300 for submitting the finance application. Scicluna transferred $300 to you on 13 May 2017. This is the subject of Charge 2.
5 Scicluna then assumed the identity of Jake Carrigg when agreeing to purchase a Harley Davidson motorcycle from Harley Heaven. On 15 May 2017, you submitted a finance application to Pepper Money Pty Ltd in the name of Carrigg for Scicluna for the amount of $23,459.20. You attached two payslips which you created in the name of Jake Carrigg, along with a copy of his Marine licence which Scicluna had provided. Scicluna had sold a jet ski. You exchanged numerous text messages with Scicluna concerning the need for signatures to deceive verification checks. The loan was approved. This conduct is the subject of Charge 3.
6 On 16 May 2017, you received a payment of $400 from Scicluna for your assistance in obtaining the fraudulent loan. This is the subject of Charge 4.
7 Scicluna, posing as Jake Carrigg, authorised Harley Heaven to transfer the registration of the motorcycle into his name and Scicluna collected it on 18 May 2017. On 7 August 2017, Carrigg received a letter from the finance company seeking outstanding loan repayments. This was when he first learned that, without his knowledge, a loan had been taken out in his name for the purchase of a motorcycle. Carrigg made a statement to police the following day.
8
On 18 June 2017, Scicluna pretended to be interested in buying a boat from Michael MacKenzie and obtained his personal details, including bank account number and photo of drivers licence. The purchase did not proceed and
Mr MacKenzie was then overseas until 24 July 2017. Scicluna gave you
Mr MacKenzie’s details, telling you that Mr MacKenzie was his uncle, and asked you to check his credit rating. Scicluna then asked you to obtain finance for a boat and car in the name of Mr MacKenzie’s business. You manufactured an Australian Taxation Office (‘ATO’) Notice of Assessment in Mr MacKenzie’s name and sent this to Scicluna on 23 June 2017. You exchanged text messages with Scicluna, who told you to proceed only with the finance for a vehicle.
9 You submitted an online application for finance to purchase a Jeep Grand Cherokee valued at $77,453 through Pepper Money Pty Ltd in the name of Michael MacKenzie. The application was rejected. This conduct is the subject of Charge 5.
10 On 28 June 2017, Scicluna transferred $200 into your bank account as payment for attempting to obtain this fraudulent loan. This is the subject of Charge 6.
11 On 6 July 2017, Scicluna sought to buy a boat from Master Craft Melbourne and was told to contact 360 Finance Pty Ltd. Scicluna contacted 360 Finance, identified himself over the telephone as Michael MacKenzie, and applied for $100,000 finance in the name of Michael MacKenzie. At Scicluna’s request, you manufactured a fraudulent tax return in Mr Mackenzie’s name, which Scicluna filled in. You also created an ATO Notice of Assessment in the name of Michael MacKenzie. On 6 July 2017, Scicluna submitted these documents to the finance company. The application was rejected after detection of inconsistencies in the paperwork. This conduct by you is the subject of Charge 7.
12 On 7 July 2017, Scicluna transferred $100 into your account as payment for creating and providing the false ATO Tax Return for use in relation to the failed loan application.
13 Mr Scicluna was arrested on 31 July 2017. You were originally contacted by police as a potential witness, and were not a suspect. You provided a statement to police which was signed and witnessed on 12 September 2017. That statement contained lies in relation to two matters. Firstly, you lied when you stated that you had received a telephone call from Jake Carrigg and that he had provided you with the two payslips. In fact, you never spoke to him, and you manufactured the two payslips. Secondly, you lied when you stated that Michael MacKenzie had telephoned you and had forwarded his driver’s licence to you. In fact, you never spoke to him, and Scicluna had provided you with MacKenzie’s drivers licence details. Your conduct in telling those lies is the subject of Charge 8.
14 I note that prior to your signing your statement, police had, on 6 September 2017, downloaded material from Scicluna’s phone which included the various text messages you exchanged with him.
Chronology
15 You were arrested on 28 November 2017 and were interviewed and charged. You admitted receiving some payments but did not admit any wrongdoing. Towards the end of the interview, you became unwell and the interview was terminated.
16 You pleaded guilty at committal, prior to any witnesses being called, after resolution of a legal issue concerning the secret commission charges.
17 Your co-accused, Scicluna, was sentenced by His Honour Judge Wraight on 24 January 2019. The prosecution and defence in your case agree that parity is not a consideration, given the extensive differences between his offending, background, age and mitigatory factors and those of your case.
Personal circumstances
18 Your personal circumstances may be briefly summarised. You are now 41 years old. You grew up in Altona Meadows. Prior to retiring, your mother worked in administration with Colonial Life and your father was a sales representative. You completed Year 12 at school and started work immediately with Colonial Life after deferring a business degree. You have qualifications (in the form of various Certificates and Diplomas) in financial planning, investment planning and mortgage broking. You have worked fulltime for 23 years in various managerial and finance positions. You worked for Yes Finance between 2016 and December 2018, earning approximately $90,000 per year. Your employer kept you on after your offending came to light, but you felt embarrassed and ashamed of your conduct and left the company. Since then you have worked for the Dulux Group as a sales representative, earning approximately $70,000 per year. You married in your early 20s, and share custody of a 13 year old son. You remarried ten years ago and have lived, for the past five years, in rental accommodation, with your parents-in-law, wife, 18 year old step-daughter (who has mental health issues) and seven year old son (who has autism spectrum disorder). As a result of the current matter, you are being treated by your general practitioner for anxiety and depression.
Plea submissions
19 It was pointed out that the gravity of your offending in relation to Charges 1-7 is very low given the quantum of monetary benefit to you, which was also very low. It was conceded that the most serious charge is that of perjury, but again it was submitted that your offending, in telling two lies in an otherwise honest statement, lies at the less serious end of offending because it occurred outside the curial context. In addition, it was emphasised that at the time you signed the statement, without the benefit of legal advice, police already had the statements of Mr Carrigg and Mr MacKenzie and knew that you had not spoken to them. Your conduct had no impact on the justice system and rather reflected your panicked state at the time.
20 Your counsel tendered a bundle of documents.[1] A letter from your son’s paediatrician confirms his diagnosis. A letter from your first wife attests to your being a careful person who pays attention to detail and who is a good father. She stated that it was out of character for you to be involved in dishonesty at work. Your current wife states that you are a wonderful, hands on father, the glue that holds the family together, as well as being the sole income earner. Your general practitioner, Dr Sirimanne, certifies that you are being treated for anxiety/depression as a result of these matters, and that you have been referred for psychotherapy and counselling.
[1]Exhibit C.
21 Your counsel relied on your early plea of guilty, your prior good character and absence of pending matters, your very solid work history, the fact that you are the sole income earner for the extended family members living with you, as well as the personal hardship to you that would flow from imprisonment in knowing that your wife is alone to care for your autistic son and your troubled step-daughter, and being unable to be there to support them emotionally or financially.
22 In all the circumstances, it was submitted, the scope and gravity of your offending, even on the charge of perjury, could be dealt with by the imposition of a lengthy Community Correction Order with conditions including unpaid community work and mental health assessment and treatment.
Prosecution submissions
23 The prosecution conceded that your offending, in relation to all the charges, lies at the lower end of seriousness for these kinds of offending. However, it was submitted that you had a high level of moral culpability, and that your offending in relation to Charges 2, 4 and 6 was motivated by greed. It was conceded that you pleaded guilty at a relatively early stage. In relation to your prior good character, it was submitted that this matter is of less significance in offending of this nature, where offenders are often of good character and therefore in positions of trust where they are able to offend. Finally, it was submitted that a combination disposition was appropriate in all the circumstances.
Assessment by Corrections Victoria
24 I note that on 22 February 2019 you were assessed as suitable to undergo a Community Correction Order. The recommended conditions include: supervision, unpaid community work and mental health treatment and rehabilitation.
Sentencing considerations
25 In sentencing you, I must take into account the principles of denunciation, just punishment, general and specific deterrence, protection of the community and your rehabilitation. I must consider the seriousness of the offending, your culpability for it, as well as your personal circumstances. I must also balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and reintegrated into society.
26 I consider that you bear a high level of moral culpability for your offending, which constituted a breach of your employer’s trust and occurred during a period when you felt financially pressured. However, I also consider that your offending, in relation to each of the charges to which you have pleaded guilty, lies at the lower end of seriousness for each type of offending. Although not determinative, it is noteworthy that the secret commission offences involve very small amounts. You were not the principal offender in relation to Charges 3, 5 and 7, which involved a total of approximately $200,000 obtained by Scicluna. Perjury is a very serious offence. Your offending was less serious because it was extra-curial, in circumstances where police were already aware from Messrs Carrigg and MacKenzie that they had had no telephone contact with you. There was no actual impact on the justice system. However, it is clear that you deliberately lied to deflect police attention away from you. I accept that you were in a state of panic when you perjured yourself. In the circumstances, I consider that your offending in relation to the charge of perjury lies at the lower end of seriousness for this type of offending.
27 There are two powerful mitigating factors. First, you are entitled to a substantial discount for your early plea of guilty, which has saved the community the time and expense associated with a trial, and the witnesses the inconvenience of having to give evidence. In addition, the plea is indicative of your remorse. You have also expressed remorse through your counsel for your offending.
28 Second, you have no prior convictions. Whilst this is often the case for offenders who are in trusted positions, I accept that you have had a consistent work history in trusted positions, and that your employer, knowing of your offending, was content to keep you in your employment, even though you have elected since then to change jobs for much less well-paid employment in sales. You have shown insight into and remorse for your offending. You are well supported by your wife. You play a critical emotional and financial role in the family constellation and I accept that you will suffer hardship if imprisoned because of being unable to emotionally and financially support your son who has special needs and your emotionally vulnerable step-daughter. I consider that your prospects of rehabilitation are at least reasonable.
29 In all the circumstances, I am not satisfied that the scope and gravity of your offending is such that only a term of imprisonment, whether or not combined with a Community Correction Order, will suffice. Rather, I consider that the punitive elements of sentencing can be addressed by the imposition of a lengthy Community Correction Order. Given that the offences form part of a series of offences of the same or a similar character, I consider it appropriate to impose an aggregate Community Correction Order.
30 Would you please stand, Mr Bacon. On Charges 1-8 you are convicted and placed on a Community Correction Order for a period of two years.
31 In relation to the Community Correction Order, you will be subject to supervision and be required to complete 100 hours of unpaid community work, as well as mental health assessment and treatment. I direct that up to 50 hours of your participation in counselling may be credited towards or as hours of unpaid community work.
32 In addition to the conditions that I have specifically imposed, you must also abide by the terms that apply to all Community Correction Orders. These are: that you must not commit any other offences during the period of the order being enforced - that is, two years from today – for which you could be imprisoned, even if a court would not choose to impose imprisonment. You must report to and receive visits from a Community Corrections officer. You must report to the Community Corrections Centre at Werribee within two clear working days, which will be 5 March 2019. You must not leave Victoria without first getting permission from a Community Corrections officer, and you must inform the Community Corrections Office of any change of address, where you live or work within 48 hours of that occurring. Finally, you must obey all lawful instructions from, and directions of, Community Corrections officers. Do you understand all the conditions I have imposed and the general terms that apply?
33 OFFENDER: Yes.
34 HER HONOUR: Before consenting to the making of such an order, you must understand that contravening any condition attached to the Community Correction Order, except for a contravention of a direction of the Secretary, is itself an offence that is punishable by three months’ imprisonment. Contravention of a Community Correction Order also carries with it the prospect that you will be brought back before me and resentenced for the original offending. Do you consent in these circumstances to the imposition of the Community Correction Order?
35 OFFENDER: I do.
36 HER HONOUR: I indicate pursuant to s 6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to an aggregate term of imprisonment of six months and a 12 month Community Correction Order.
37 The prosecution has also sought an order pursuant to s 464ZF of the Crimes Act in relation to the taking of a forensic sample, and you have indicated that you do not oppose this through your counsel. I will make that order because you do not oppose it and because having regard to the nature of the offending, I consider that it is in the interests of justice for the order to be made.
38 In making this order, I need to inform you, Mr Bacon, that I am signing this order that requires you to undertake a forensic procedure for the taking of a scraping from the mouth and/or a blood sample until a sample of sufficient standard is obtained for the placement on the database. I advise you that if at the time of the request for such a sample is made you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police, then the sample to be taken will be a blood sample, and the police may use reasonable force to enable that forensic procedure to be conducted. Do you understand?
39 OFFENDER: I do.
40 HER HONOUR: All right. Were there any other matters?
41 MS GARDE-WILSON: No, Your Honour.
42 HER HONOUR: We will just provide you with a copy of the order for Mr Bacon to sign. We will produce the forensic sample order in chambers and circulate it.
43 MR PORCEDDU: Yes, Your Honour.
44 HER HONOUR: All right, thank you, we will adjourn.
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