Director of Public Prosecutions v Baird
[2023] VCC 684
•2 May 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-22-01979
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER BAIRD |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 April 2023 |
DATE OF SENTENCE: | 2 May 2023 |
CASE MAY BE CITED AS: | DPP v Baird |
MEDIUM NEUTRAL CITATION: | [2023] VCC 684 |
REASONS FOR SENTENCE
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Subject: Criminal law. Sentence upon plea of guilty.
Catchwords: Obtain a financial advantage by deception - Obtain property by deception
- Covid-19 delay - Unremarkable upbringing - Absence of alcohol, drug
or gambling problems - Significant criminal history - Guarded prospects
of rehabilitation.
Legislation Cited: Sentencing Act 1991.
Cases Cited: Worboyes v The Queen [2021] VSCA 169; The Queen v Merrett, Piggott
and Ferrari [2007] VSCA 1.
Sentence: Total effective sentence of 4 years' imprisonment with a new non-parole
period of 3 years and 3 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Deppeler | |
For the Accused | Mr J. Hurley | Ms A. Murrell |
HIS HONOUR:
1Peter Michael Baird, you pleaded to two charges of obtaining a financial advantage by deception and one charge of obtaining property by deception. This last charge was a rolled-up charge.
2The circumstances of your offending were summarised in a prosecution opening upon the plea which was exhibited, and I shall recite them.
3At the time of the offending commencing in or around October 2012, you were 40 years of age. The victim, Raymond Baird, is your father. At the time the offending commenced Mr Baird was 65 years old.
4In 2011 your father sold his home. You assisted him with his financial arrangements. In that capacity, you helped set up accounts for the remaining funds from the house sale, approximately $75,000, and in creating a myGov account for Mr Baird.
5You were aware of all information relating to his bank and myGov accounts established at this time, including their passwords. Mr Baird had given you control of that account to assist with managing his finances.
6Your father had been receiving the Centrelink Aged Care Pension since January 2010. Prior to the offending these funds were being deposited into a Commonwealth Bank savings account in his name.
7During a trip to Thailand he lost a Commonwealth Bank credit card in or around 2011 or 2012; the loss of the card was reported to the bank and the relevant credit card account was locked. He told you about losing the credit card and having his account locked and asked you to help get the bank account unlocked. You told him that you would sort matters out on his behalf.
8Subsequently you told him that you had made enquiries with the Commonwealth Bank and that his savings account, which had been receiving the pension payments, had been locked along with an associated account with the lost credit card. You told him you would contact the Financial Ombudsman Office to assist in getting these accounts unlocked.
9Following these conversations until 2015 your father received regular phone calls from persons purporting to be officers of the Financial Ombudsman concerning efforts being made to assist with unlocking his accounts. A number of meetings were also arranged with him but were all cancelled at the last minute. These phone calls were in fact made by you.
10During this time your father also received an email purportedly from Premier Daniel Andrews about the same matters. This email was obviously also false.
11Between 2011 and 2018 your father supported himself on part time work and his wife has supported him since 2018, as he did not have access to his pension payments between the locking of his accounts and June of 2020.
12The first fraudulent loan occurred on 24 October 2012. An online personal loan application was made with the Commonwealth Bank in the name of Raymond Baird. The application was for a loan for $42,500 to buy a new car. Information submitted in support of the application included a mobile phone number, email address and postal address associated with you, copies of statements for a Bank of Melbourne savings account held in your father's name.
13The application was approved on 31 October 2012. A total of $42,650 was credited to a Commonwealth Bank account held in your father's name.
14You used these funds to purchase a 2012 Dodge Journey vehicle which was registered in your name (Charge 1 of obtaining financial advantage by deception).
15Loan repayments of $840 were made on 1 December 2012 and 1 January 2013, but no further repayments were made and the loan fell into arrears.
16Your father did not authorise you to obtain a personal loan in his name and did not know about the application or the loan and he received no benefit from the funds credited by the bank.
17The second fraudulent loan occurred in January 2013. An online personal loan application was made with Esanda Finance from the ANZ Bank in the name of Raymond Baird. The application was purportedly for a loan of $35,000, Mr Baird to purchase the 2012 Dodge Journey from you.
18A pay advice clip and a copy of a Centrelink statement from Mr Baird was submitted to confirm the applicant's income. The loan was approved, and a contract drawn up for a seven-year loan, with 84 monthly repayments of $584.24.
19Your father did not make this application. You had applied for the loan in his name without his knowledge, authorisation or consent. A copy of the loan contract was signed in the name of Raymond Baird with a witness signature by your then partner, Jody Seuren. These signatures were false. You forged the signatures of both Raymond Baird and Jody Seuren on the loan documents. Neither of them had signed the contract and neither were aware that the documents existed.
20The loan proceeds were subsequently drawn down and expended by you. Mr Baird did not receive the benefit of any of these funds and Ms Seuren had no knowledge or dealings with these funds (Charge 2, obtaining financial advantage by deception).
21Repayments were made into the loan account for six months, but the loan defaulted in July 2013 and the vehicle was repossessed by the lender in May 2014, the vehicle sold for just over $19,000 with the bank suffering a loss of $21,216.69 inclusive of all repossession, storage and towing costs.
22Details of the loan default were recorded on your father's credit history report.
23In June 2013 the destination account for your father's pension was changed to an account held with Westpac Bank. The Westpac account was held in your name. The destination account was subsequently changed to a Bendigo Bank account, also held in your name.
24By 2015 your father was becoming frustrated that his accounts were still locked and approached you to establish what was happening. You told Mr Baird that you were liaising with then Finance Minister, Robin Scott's office to resolve the problem.
25Subsequently your father received phone calls from a person purporting to be Minister Scott, who advised him that work was being done in relation to his complaint but the progress was being hampered by IT technical issues. He received multiple calls each week about the issue.
26Purported contacts with Minister Scott's office continued until 2017 when you told your father that you would make contact with your father's local Member of Parliament, Kim Wells, to further pursue the complaint.
27Between 2017 and 2020 your father received regular calls from a person purporting to be Kim Wells, regarding his bank accounts. Despite these conversations, the alleged issues relating to those accounts were never resolved.
28The purported contacts from Minister Scott's office and Kim Wells were orchestrated by you. It is unclear if all were made by you. A number of meetings were arranged but all were cancelled at the last minute.
29During this time, Mr Baird's daughter emailed Minister Scott's office asking about her father's matter. She received the reply indicating that the Minister's office did not know who Mr Baird was.
30When your father asked you about this you told him that privacy considerations meant that Minister Scott's office would not be able to provide that information to your father's daughter. This response led Mr Baird to continue to trust that you were still trying to help with getting his accounts unlocked.
31Between 7 June 2013 and 27 May 2020 your accounts received payments from Centrelink totalling $152,423.33, to which your father Raymond Baird was entitled (obtain property by deception, Charge 3).
32Mr Baird did not receive any of the funds credited to his accounts.
33In May 2020 you were sentenced in this court by His Honour Judge Tinney to a term of imprisonment for deception matters. You lost contact with your father at this time.
34On 27 May Mr Baird called Kim Wells' office directly and when he received the call back, he was told that Mr Wells did not know who he was. The redirection of the Centrelink pension payments was not discovered by your father until he attended a Centrelink office on or around 29 May 2020, accompanied by his daughter, to enquire about his Aged Care Pension payments.
35Centrelink advised your father that since 2014 his ongoing Aged Care pension payments had been credited to a Bendigo Bank savings account, allegedly held in his name. He was unaware of this account and subsequently made enquiries with the bank and those enquiries established that the relevant account was actually held in your name.
36On or around 29 May your father received a credit report from Equifax indicating among other things, that an Esanda Finance loan had been taken out in his name, with $21,670 remaining outstanding. He also obtained account statements for his supposedly locked account and he then reported these matters to police on 29 May.
37On 23 March 2021 you were interviewed while in custody at the Hopkins Correctional Centre in Ararat and you were charged following the conclusion of this interview.
38A victim impact statement written by your father was exhibited and was read to the court. He wrote your offending put untold stress on him and his wife. Constant concerns about their financial wellbeing affected all aspects of their lives. The relationship was strained, sleep was difficult, and anxiety and depression became a sad reality for them. He sought counselling. He is also worried about contact with you after your eventual release.
39Your offending impacted his sole income, the Aged Care Pension, for some seven or eight years resulting in large debts accumulated in his name without his knowledge, and it has taken him years for him to get clear of them, with great sacrifices.
40During the offending period your manipulation impacted his relationship with his daughter and her children. Lacking financial security and means meant that friendships and social occasions diminished, often because he defended you in the face of suspicions and advice from others, which he rejected.
41He wants nothing more to do with you. I take the victim impact statement and the impact upon your father into account.
42These offences span a period of some eight years between October 2012, the date of the first obtaining financial advantage and April 2020, the last date of a period which began in 2013 during which you obtained property by deception.
43During this period your offending effectively escalated from obtaining financial advantage extracted from financial institutions to the tune of over $78,000 for your use. In order to do so you deceived them by applying for loans in your father's name and by falsely affixing your signature and that of your then partner.
44It was argued that they were not sophisticated frauds. The device you used may not have involved a complex deception, but nevertheless it involved a level of sophistication and more importantly planning and a fraudulent intent. Your deception as regards those charges not only impacted the financial institutions when the loans fell into arrears and they suffered losses, but they involved the deception of your father and your partner. They are of high moral culpability.
45The third charge which is a rolled-up count involved a fraudulent scheme which made your own father the victim of your manipulation and deceit. It is of a scale and betrays a contumacious intent that is brazen and confounding.
46This behaviour breaches fundamental principles of trust and familial care, respect and responsibility in order to deceive for your own benefit and greed, but in doing so willingly and over an extended period, deprives your father of financial security by way of a pension, resorts to connivance of a gross nature, abusing both trust and naivety while inflicting hardship and distress, which must have been all too obvious to you.
47To have made or orchestrated false calls from government authorities defies decency and the worth of familial links, which still lie at the foundation of our society. It is conduct reprehensible, which must be denounced and justly punished.
48The fraud on financial institutions threatens the stability of financial arrangements in the community, with its attendant costs.
49The defrauding of a parent also calls for general deterrence to deter like-minded others that such unacceptable deception will be met with stern punishment.
50The legislators have recognised the seriousness of such conduct by providing for maximum penalties of 10 years' imprisonment for each of these offences, which is the first consideration as a yardstick to take into account.
51I take your plea into account. It has utilitarian value in that it has avoided a criminal trial, which would have exposed both your father, your sister and your ex-partner in giving evidence.
52Its value is enhanced at a time of pandemic in which the criminal justice system is still endeavouring to recover from delays and backlogs. It facilitates the delivery of justice outcomes and must attract the reduction of sentence according to the Worboyes considerations.
53It was also made with an expectation of incarceration during which time pandemic conditions still effect the period of reclusion to be undertaken by you, of periods of isolations, quarantine requirements, necessary lockdowns, the curtailing of programs, of visits, activities, transfers, opportunities both for work and educational endeavours.
54Also relevant in this context is that you were sentenced in May of 2020, a matter I will discuss in a moment, so that you have spent almost three years in reclusion during this difficult period, a matter which must be taken into account of itself and its impacting on the application of totality, in arriving at a just disposition.
55I note that in August 2022 you became eligible for parole on the sentence being undertaken, but your parole has been put on hold as the outcome of these matters before me must be determined.
56I accept that having been charged in June 2022 for these matters, your plea was made at the earliest opportunity at first committal mention in October 2022, although the plea could not proceed before April of this year.
57These matters will all be taken into account in reduction of your sentence.
58I take your personal circumstances into account. You are 50 years of age. You had an unremarkable upbringing. You received a good education, excelled academically.
59Your mother died at age 57 in 2008. Your father is now aged 76 and he remarried in 2018. He was a French furniture polisher. There was neither gambling, drug or alcohol issues in the family, nor any form of violence within the family.
60You attended Scoresby High School till Year 12 as Dux of the year. You also won a couple of scholarships at school. You studied medicine at Monash University for three years, but you were excluded by the University because your academic performance was not up to expectations.
61Both of your siblings have had careers in medicine and biomedical research and engineering. You have effectively no contact with either your sister or your brother.
62After leaving studies you worked for your father for five or six years, then as a prison officer for three years, but you lost that job after being charged with financial deception for which you received a three-month suspended sentence in 2004. That disposition included a fine of $3,000 and involved five counts of obtaining financial advantage by deception, making a false document to prejudice another.
63Six months later that fine was varied to perform 147 hours of unpaid community work, pursuant to a community-based order. You breached that order and it was cancelled in 2007 and you were imprisoned for 28 days.
64It was around this time that you and your wife separated, having married in 2002, the second of your relationship was with Ms Jody Seuren, with whom you had two daughters now 12 and 10. It was her signature you falsely applied to the fraudulent loan application in 2013. She too left you as a result of your conduct.
65Between 2013 and 2016 you had a relationship with a woman, Amy, a profoundly deaf woman who had a son by you, now aged seven.
66You told Mr Jeffrey Cummins, a consultant clinical and forensic psychologist of long experience, that all these intimate relationships ended by your partners 'because of your financial irresponsibility, financial deception and lies regarding money'.
67Between 2004 and 2008 you worked in door-to-door sales and in compliance with Energy Australia, then with SP AusNet through to 2012 when you ceased work, having been diagnosed with meralgia paresthetica. You are now in receipt of a disability benefit. This diagnosis is aggravated by morbid obesity and you experience back pain.
68Mr Cummins interviewed you from the Hopkins Correctional Centre in February of this year and his report is dated March 22. You were then in protection because of your past work as a prison officer at Port Philip and Barwon. You are medicated on blood pressure medication and Panadol Osteo for the meralgia, which compresses the nerves in your lower spine.
69You are seen by a psychiatric nurse every three months, although you have not received mental health treatment. You work in signage industries. You were assessed as morbidly obese, and this makes your custody more difficult generally. At the time of his assessment, your weight peaked at 202 kilograms and within the last three weeks you told him you had lost 26 kilograms on a strict diet.
70Apart from work, while at Hopkins you have worked as a peer mentor to prisoners diagnosed with intellectual disability. Your physical condition is a relevant consideration as well as your efforts at work, which is to your credit.
71You speak to your daughters on a regular basis by Zoom every Saturday and with your son every Sunday morning. These connections are also positive factors for your future.
72You told Mr Cummins that in 2019 you experienced some cardiac issues where a stent was fitted. You also suffer sleep apnoea, although you have neither an alcohol, drug or gambling problems.
73In 2014 you attended a psychologist with a mental health plan and you were prescribed Aropax, a mood stabiliser. You are not currently medicated for psychological conditions.
74Mr Cummins states that very early in the assessment you told him that your current incarceration had produced a course of self-examination and self-exploration. You told him your offending was motivated by the need to present as a man with money, leading to deceptions. You expressed guilt and remorse, particularly that offending involved your father, for which you rightly feel ashamed.
75As to the money obtained, you used it, you told Mr Cummins, to pay rent and maintenance for your children. You said you bought two cars but did not accumulate wealth.
76You told him you took responsibility for your offending. You accepted that your criminal conduct was against your father, but although you hope to reconcile, if it did not occur you would learn to live without it. You doubt much reconciliation will occur with your sister.
77In prison, you told Mr Cummins, you have formed a close relationship with Father Ferguson, the Anglican Chaplain. You see him weekly and you said you have 'rediscovered your Christianity through him'. A transformative discovery.
78The court was provided with a letter from Reverend Samuel Bleby who had been asked to contact you by the Reverend Ferguson, and he confirms that he is keen to assist you to transition back into the community after your imprisonment, with your intention to join his congregation in Cranbourne.
79You presented as being at least of high average intelligence. You did not present with current impairment in reasoning or judgment or mental disorder. You exhibited some characteristics of a borderline personality disorder, but your communication was not consistent with any antisocial personality disorder, although your medical problems contribute to your sense of depression.
80Mr Cummins opines these conditions exacerbate your incarceration by making it more onerous than normal. I take the contents of this report into account, particularly the matters pertaining to your health which to a limited extent mitigate your punishment.
81Although I have mentioned your prior history up to 2007, it is noteworthy to continue that summary, given that relevant matters do occur thereafter.
82In March 2014 you were placed on a community corrections order and required to perform 80 hours of work for charges of theft, obtain a financial advantage by deception and driving offences. That order was breached by contraventions of family violence intervention orders, theft of a motor car and offences of obtain financial advantage by deception.
83For the breaching offences you were ordered subject to a 15-month community corrections order with 170 hours of work. For the breaches you were ordered, under another community corrections order, to perform 40 hours of work and those matters were dealt with in 2017.
84These priors are important not because you are going to be punished for them again, but because they enliven specific deterrence and aid in the assessment of your prospects of your rehabilitation and indicate a propensity for dishonesty in the past.
85They are relevant because these court appearances in 2014 and 17 occur at a time current with the offending for which I am dealing with, in relation to Charge 3, which spans June 2013 to April 2020. It is reasonable to infer that the court sanctions and the predicament of being dealt with for dishonesty offences by the criminal justice system, posed no deterrent for your conduct under Charge 3.
86Of even greater relevance is the matter the subject of His Honour Judge Tinney's sentence of 25 May 2020. In the case of Charge 3 on the indictment I am to deal with, you received the moneys due to your father right up to 27 May 2020. The indictment upon which His Honour sentenced you encompasses offences committed:
· In 2013 by the passing of bad cheques for a car, a debt.
· Between December 2013 and March 2014 as passing nine bad cheques for a car and to evade significant debts.
· From April 2014 to August 2014 another 10 cheques.
· Another nine cheques from May to July 14.
· Two cheques on September 14.
· Another three valueless cheques between November and December 2014.
87It is also noteworthy that in the submissions of counsel upon your plea before His Honour, it was stated upon your instructions that 'You remained close to your father'.
88Those offences involved breaches of trust causing loss to several parties, the quantum of the offending substantial. There were two charges of obtaining property by deception, 15 of obtaining financial advantage by deception, and one attempt to obtain property by deception.
89His Honour described your offending as brazen, evading debts to friends, associates and businesses. Some of the many accounts you opened, depositing valueless cheques and taking out significant sums, were also open in your father's name. His Honour described your conduct in relation to matters which again involved Ms Seuren as 'cruel'. You were on a community corrections order during most of those offences.
90In his sentence at para 34, His Honour no doubt relying on submissions based on your instructions, recited the fact that you were close to your father. However, His Honour also said at para 36 that he had great difficulty accepting anything by way of untested instructions from you on almost any topic'. Perhaps he should have included that scepticism to your assertion about your relationship with your father.
91His Honour concluded from a review of your priors, that you are someone who just will not, or cannot act honestly, again referring to one of the offences for which a CCO was imposed as a 'pretty cruel duping of a family friend'.
92He was not satisfied of the accuracy of any account you gave in relation to your motives and intentions (para 42).
93Also at that time in May 2020 and for many reasons pertinent to that case and how it proceeded through the court, he was not satisfied that there was any remorse. He found the offending was deliberate, some of it with 'some modest level of sophistication'. He said your moral compass was wildly astray and that you had exhausted any claims for great leniency. He estimated your prospects as relatively poor. His Honour sentenced you to three years and nine months with a two-and-a-half-year non-parole period.
94I have recited these matters pertaining to that sentence because the disposition to which I arrive must reshape your imprisonment by imposing a new total effective sentence and non-parole period.
95As to remorse, in my view your prompt plea to these offences is in stark contrast to the delay in the matters before His Honour Judge Tinney, and I accept that the plea is some evidence of remorse, perhaps brought about by your imprisonment in May as reflected in the matters I have referred to in Mr Cummins' report.
96I agree with His Honour's assessment of a level of sophistication, but I also agree that your offending demonstrates a continuing and abiding dishonesty in the offending period. I agree that your prospects based on this history must be guarded.
97Totality requires me now to impose a sentence that seeks to encompass your criminality as understood by an analysis of this indictment and that upon which His Honour sentenced you, towards an appropriate and proportionate sentence commensurate to that criminality. This is always a difficult exercise, but not in the sense that I resentence you for the matters which His Honour dealt with, but by applying ss14 and 16 of the Sentencing Act 1991 I will cumulate part of this sentence on the sentence you are serving and fix a new single non-parole period.
98The matter which I will take into account is the delay in this matter. There are two aspects consequent on this subject. The first is that in the matters and times leading up to the sentence of May 2020 you could have made admissions to investigators even before the long-standing deceit upon your father was discovered, some few days after that sentence.
99It would have allowed His Honour or some other judicial officer to consider all of the matters together. As it turned out, at that time you opted to waste your time on futile arguments about change of plea and your counsel's performance, which finally fell away only after a considerable passage of time.
100A statement from your father was taken in June 2020, but you were not interviewed until 23 March 2021 and not charged till 27 June 2022.
101I was not given any reason for these delays. I might reasonably speculate that the pandemic period is central to that delay, but irrespective of the reasons the delay occurred. Once proceedings were on foot the plea was given in a timely fashion.
102The question of unfairness as it was argued is a difficult one. It was raised but not expanded upon, except by reference to Merritt, Pigott and Ferrari[1] in Justice Maxwell's judgment as relevant to rehabilitation.
[1] Judgment of Justice Maxwell - The Queen v Merrett, Piggott and Ferrari [2007] VSCA 1.
103In my view the length of the delay in the present matter in the period in which you have been uncertain of your fate, is not mandating a significant reduction in the sentence but only slight moderation.
104Your progress during your current incarceration has tempered the effect of delay, but that factor will be taken into account in sentencing you because such progress can be a significant mitigating factor in your favour. Of course, if this conduct and progress had taken place in the community then that factor may become a powerful mitigating factor. Nevertheless, even in custody some progress can be gleaned if the matters found in Mr Cummins' report are to be given credence, and therefore delay will be taken into account as having a mitigatory effect.
105It was submitted that the court could adopt the applicable regime of suspended sentences for part of the sentence. In my view that course is inappropriate and unnecessary, it complicates an already difficult task. I do not agree with the submission made on your behalf that a concurrent and partially suspended sentence, in effect avoiding further imprisonment, is appropriate or justified.
106On obtaining a financial advantage by deception, on Charge 1 you are convicted and sentenced to 12 months' imprisonment.
107On Charge 2 of obtaining a financial advantage by deception, you are convicted and sentenced to 12 months' imprisonment.
108On Charge 3 of obtaining property by deception, you are convicted and sentenced to three and a half years' imprisonment.
109I order that three months on count 1 and three months on count 2 be served cumulatively on count 3 and upon each other, making a total effective sentence of four years' imprisonment.
110I order that one year and six months of this sentence be cumulative on the sentence currently undergoing and I order a new non-parole period of three years and three months.
111I do not believe there are any ancillary orders that I need to order in making this matter, so that is really the end of the matter, thank you.
112MR HURLEY: As the court pleases.
113HIS HONOUR: Ms Deppeler, is there any pre-sentence detention that needs to be declared in relation specifically to this matter, in this exercise?
114MS DEPPELER: Not that I am aware of, Your Honour.
115HIS HONOUR: Yes.
116MS DEPPELER: There was no pre-sentence detention because of the charges being born whilst Mr Baird was in custody and the decision in respect of parole pending.
117HIS HONOUR: Yes. But for your plea Mr Baird I would have sentenced you to five years' imprisonment.
118Yes, thank you. I will remain on the Bench. You may leave, thank you.
119MR HURLEY: Thank you, Your Honour.
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