Director of Public Prosecutions v Baird
[2020] VCC 692
•26 May 2020
| lN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCase No CR-18-01187
Indictment No F12344825
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER MICHAEL BAIRD |
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| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 May 2020 |
| DATE OF SENTENCE: | 26 May 2020 |
| CASE MAY BE CITED AS: | DPP v Baird |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 692 |
REASONS FOR SENTENCE
---Catchwords: obtain property by deception (2), obtain financial advantage by deception (15), attempt to obtain property by deception. Delay; Change of plea application abandoned. No remorse
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr S. Kenny | Stary Norton Halphen |
HIS HONOUR:
1 Peter Michael Baird, you have pleaded guilty to two charges of obtain property by deception, 15 charges of obtain financial advantage by deception and a single charge of attempt to obtain property by deception.
2 You have a relevant criminal history. You also have a number of either subsequently committed offences or subsequently dealt with matters. They are all relevant to my task as is conceded by your counsel.
3 You were born on 4 October 1972 and you are now 47 years old. You were 41 or 42 at the time of the offending taking place as it did back in 2013 and 2014.
4 The maximum penalties are correctly set out in the prosecution summary. A number of the offences are relevant offences under the continuing criminal enterprise provisions of the Sentencing Act 1991 and when sentenced to three such offences, those three and then any others, which in this case is the other two, all then have the increased maximum courtesy of the continuing criminal enterprise provisions. It is not like the Serious Offender provisions where the sentencing ramifications do not apply to the qualifying offences. See Rousetty [2008] VSCA 259. I do not treat the attempt in Charge 9 as a continuing criminal enterprise offence, for though the amount is well in excess of the continuing criminal enterprise amount, attempt is not specifically provided for in
Schedule 1A of the Sentencing Act.
Facts
5 On 14 May, the prosecutor, Mr Pickering, opened this matter to me in accordance with the written prosecution opening dated 11 April 2019. Your counsel, Mr Kenny, told me it was an agreed summary. I am not going to set out all the detail of your offending. That document is as you know quite lengthy and does that very adequately and I will sentence in accordance with that agreed summary, which is marked as Exhibit A.
6 In the period covered by the charges you committed a series of dishonesty offences of varying levels of seriousness. The common feature was having access to a Bank of Melbourne cheque account. You knew that the account which had been opened with an intimate partner had no funds within it and you then set about writing valueless cheques as though they were going out of style, which in a way I suppose is true, as not many people write cheques in this day and age.
7 It was brazen offending and you evaded debts to friends, associates and businesses alike and obtained significant enough benefits and for that matter, property. You had obviously at some point detected some fault in the cheque clearance procedure at Bankwest. You opened a large number of accounts online and then deposited valueless cheques and then took out significant enough amounts which of course you knew would never arrive into the account once the cheque was dishonoured. You even opened up some accounts in your father’s name for that purpose.
8 There was just quite persistent dishonesty over this period. You were not greatly troubled by being uncovered and you tried to defer the evil day by sending out numbers of valueless cheque to some of those you had deceived, to replace the earlier valueless cheques. This was not by the way victimless offending. There were victims aplenty and actual sizeable enough loss in this case as well.
9 You were arrested and interviewed and made no admissions on 12 November 2015. You said that you had an account but you could not remember the various transactions which were put to you. You described though your belief that you had funds in an account sufficient to cover cheques drawn by you. You played a pretty straight bat in the course of that interview.
10 You were further interviewed on 17 November 2017 and made a series of quite damaging admissions. You were charged and there was a filing hearing in December 2017. The matter came up straight hand up brief to this court on
5 June 2018 with a not guilty plea. A puzzled Judge Taft quizzed your counsel about the actual trial issues the following day at the 24 hour initial directions hearing, raising the fact of the admissions made to the passing of valueless cheques that were contained within the interview. As expected, the matter settled and you were arraigned on 23 August 2018. That is not a misprint, 2018. There was a written plea and the judge on that occasion, Judge Grant, very sensibly got you to sign every charge on the indictment. Just as well he did.
11 Thereafter, there is a very lengthy chronology and I am not going to set it all out in my reasons. It is just not necessary for me to do so. Since your plea was taken on 23 August 2018 in this court, there have been at least 18 appearances in front of around 10 further judges, bringing the total number of judges in this court who have had some role in this case to 14 or so. All up since the matter came to this court there have been something like 24 or 25 listings of the case. The precise numbers are not critical though.
12 I could spend the next hour setting down the finer detail of the chronology for I was the judge who was selected at random to hear the application for change of plea which was listed before this court on 23 April of this year and hence I was required to read all of those transcripts to get a sense of the case. I choose not to set out anything more than a very broad summary of what has taken place in this court.
13 From time to time there have been health concerns almost always coinciding with some court listing. For instance, on both occasions on which the plea was listed, firstly in November of 2018 and then again in April 2019. I acknowledge though that stress levels often will rise at that point in time and there have been some medical materials filed which explain the health issues. So the first plea date in November came and went as you plainly were unwell in hospital. So too the second date in April 2019 came and went. By then though, you had signalled that you wished to change your plea. From that point, the case ran off the rails and you were not in my judgment displeased with that.
14 In trying to retreat from your guilty plea, you cited the improper conduct of previous counsel and a lack of understanding as to what you had pleaded guilty to, as well as pointing to assurances that had been made by your highly competent and experienced barrister of the likelihood of a non-custodial outcome. Your change of plea application was first listed in September 2019, collapsed due to change of counsel or funding issues, was relisted in January 2020 and was adjourned again, and then most recently of course was listed before me on the 23 April 2020.
15 I had to take myself out of court and spent over a day preparing for the matter and came on to the Bench to be told that the change of plea application was abandoned. That had in fact been conveyed to the court late in the afternoon of the day before. Then there was an adjournment application to get the plea ready, a plea that was first listed on 22 November 2018 and again in April 2019. With some reluctance, I granted the adjournment application to the 14 May, not the six to eight week period requested of me. On 14 May, I remanded you into custody and though of course I wanted to review all of the materials, it was obvious that a custodial outcome was required here. The issue was the length of that term and whether or not there might be some consideration of a combination type order in this case.
16 In relation to the change of plea application, you had sworn an affidavit late last year. It is Exhibit C on the plea. It has been filed on the plea by the prosecutor.
17 The barrister who had previously appeared for you was to give evidence on the change of plea application. He was to be called by the prosecution on that application, presumably to refute your many and varied allegations, allegations which looked pretty improbable, if not impossible merely by a consideration of what was said in your presence at the three mentions leading in to the
23 August 2018 resolution and what took place on that actual day before
Judge Grant.
18 Your counsel in those lead-in mentions had been telling the court of the matters that were still in dispute and the narrowness of the issue and described having taken instructions from you and needing to have further discussions with you. He described in your presence going through the charges with you. Eventually the court was told there was only a single charge which was a sticking point.
19 The claim made by you that the highly competent and experienced barrister who I shall not name would suggest that a community corrections order was on the cards for this serious offending by a man with relevant criminal history is inherently unbelievable without anything more. The claim that you did not know what you were pleading guilty to looks a bit sick and sorry when regard is had to the transcript of what was said to you and by you and in your presence at the various preceding mentions as well as on the day of the arraignment in front of Judge Grant, not to mention the fact of your own signature appearing alongside each of the charges on the indictment.
20 The change of plea application had some massive obstacles not the least of which were the damaging admissions which had been made by you both to the police in the second interview and to Ms Lechner and the great difficulty that they posed in terms of establishing any miscarriage of justice irrespective of the claimed conduct of counsel.
21 So much then for my summary of the summary as well as my summary of the chronology. The lengthy summary of the facts will remain available on the court file.
22 This was serious offending.
23 It is no part of my job to censure or punish you for proceeding in the way that you have and I will not lose sight of that important matter. It was your right to endeavour to change your plea. You are not to be punished for doing that. The only reason I have gone into such detail as to the chronology of proceedings is that it is undoubtedly relevant to the submissions that have been made to me as to the utilitarian value of your guilty plea and the presence of remorse in this case.
24 You have spent the better part of 12 months in a pretty determined endeavour to change your plea and to deny your guilt. I do not for one moment accept your instructions belatedly offered up now that you had no knowledge of what intention to permanently deprive was or what a financial advantage was and that this was the issue behind your change of plea application. I raised with
Mr Kenny how that posed any issue in relation to occasions of passing valueless cheques into accounts you had opened so that you could empty out the cash. Where was the issue there? Your instructions to Mr Kenny were that there were only some of the charges where there was an issue as to your guilt. I do not accept your instructions to counsel. There was nothing suggesting that in your affidavit or at any of the many mentions of the matter including when you were represented and nor is it mentioned in the written submissions that had been filed on the change of plea application. Nothing suggesting anything other than that you were denying guilt of the charges and were levelling some strong allegations against your former barrister in an endeavour to wriggle out of the entirety of your pleas, allegations which I am entirely confident are baseless. I will come back to these matters or some of them at least when discussing remorse and the benefits accruing to your plea. For whilst of course as I say, you do not fall to be punished for any of this conduct, I cannot ignore it when I consider the stage and value of your plea or the submissions that have been made to me as to the presence of remorse.
Victim Impact statement
25 There is a victim impact statement from Ms Seuren, one of your victims. Also incidentally a former partner. It is marked as Exhibit B. I have read it since the plea. Now, there was no issue taken with the filing of that impact statement, however, Mr Kenny made it plain that I had to distinguish between the impact of the crime and the breakdown of the relationship and take care in my approach. Of course that is true and I will exercise some caution in that regard. It is in truth hard to disentangle the two. The fact is though that your conduct in evading the debt has placed her under enormous strain and stress as she describes. She was owed a sizable amount of money by you and you agreed to pay various utility bills upon separation in lieu of child support. You had been intercepting her bills so that she did not receive them and realised that you were not making the payments, and your conduct in paying these various valueless cheques was actually cruel. It has caused much stress. I take into account the impact of those crimes.
Mitigation
26 Mr Kenny relied upon a written outline that had been prepared by your former barrister back in late 2018. That did strike me as being just a little bit strange given that your former barrister was the subject of such strong attack in your affidavit. Those excellent submissions has been written by your previous counsel in 2018 and mentioned things such as the stage of the plea, the utilitarian benefit and extent of savings, how the matter resolved, your full admissions, the agreed status of the summary, your rehabilitative prospects and the existence of remorse and insight.
27 There is a lot of water under the bridge since those written submissions were prepared and for that matter, since you were seen by
Ms Lechner in September of that same year. Nonetheless, Mr Kenny relied upon Ms Lechner’s report.
28 Returning then to the plea that was conducted before me. Mr Kenny, whilst adopting your former barrister’s submissions, also filed an addendum. He made plain that there were a couple of areas in the original written outline which he did not rely upon being the concession previously made as to the inevitability of a prison term, a sensible concession that was made by your previous counsel if I may say so, as well as the absence of any subsequent history. Mr Kenny took me to your background. He made submissions as to the circumstances and objective gravity of the offending. He took me your health issues and placed some material before the court on that score. He made submissions as to the relevant purposes of sentencing. He took me to what he said were some cases which illustrated current sentencing practices, as well as a snapshot from the Sentencing Advisory Council.
29 In mitigation he relied upon:
· Your admissions and guilty plea and the stage of the plea;
· The presence of some remorse;
· An increase in your custodial burden owing to your health issues, your previous status as a prison guard, as well as the COVID 19 response by Corrections;
· He argued that you had some guarded prospects of rehabilitation.
30 He conceded the seriousness of the offending and the relevance of your past criminal history. He also conceded the relevance of the many subsequent offences and or appearances. Rather puzzlingly in the written addendum, he relied upon your remorse, your prior good character and your prospects of rehabilitation. You did not have prior good character at all and I asked him about that and he amended that matter. You had after all relevant prior matters as well as subsequently committed dishonesty matters. You were on a community correction order at the time of many of these offences, one that was itself subsequently breached. Ultimately Mr Kenny did not concede the inevitability of a term of imprisonment. He argued that a community correction order would suffice.
Prosecution
31 The prosecutor, Mr Pickering disputed the presence of remorse and of your having even guarded rehabilitative prospects. The Crown had placed before me details of some of the other matters which have been dealt with, both prior matters and subsequent matters. They were marked as Exhibit D. The prosecutor submitted that you had a relevant prior history and also relevant subsequent offending including whilst on bail for this matter. They argued that you just kept offending and there was a high need for specific deterrence and community protection.
32 They submitted that some of the offending had some level of sophistication with the opening of the Bankwest accounts and then the depositing of valueless cheques and then either transfer or withdrawal from those accounts. The Crown argued that what was apparent from all of the materials before me was that you were a deeply dishonest person who must be deterred. They used and picked up the language from one of the cases your counsel had taken me to, a case of Nirens, where the term 'inveterate swindler' had been employed by the sentencing judge. The Crown called for an immediate term of imprisonment with the fixing of a non-parole period.
Background
33 There is much detail of your background in the report of Ms Lechner. It was also referred to in the older written submissions as well as the oral submissions made by Mr Kenny. I am prepared to accept the family background that has been placed before me. I see no real need to set it all out in my reasons.
34 You are 47 years of age, born on 4 October 1972. You are the oldest of three children as I understand it. Your mother died back in 2008 and I am told that was a very big blow to you, but of course you were by then a mature adult of 36 or so. You are close to your father. You had a good home life with no exposure to domestic violence or abuse. You have fallen out with your sister for reasons that have not been disclosed to me and get on well with your brother who lives overseas. You were a very good student and excelled in your HSC year and then went on to study medicine at university for a number years. You felt out of your depth and you retreated to a biomedical sciences degree which you abandoned after about six months. You had been a keen cricketer but no longer play and have not for some time owing to your weight. I interpose you were bullied at school owing to your size.
35 You worked as a prison officer at Port Phillip Prison for three years in the early 2000s but lost that job when convicted and placed onto a community correction order. You had other jobs in sales and as a compliance officer. You are on the Disability Support Pension and have been since 2013. Your counsel told me about three major relationships you had. I am not going to set out that chronology. You had two daughters with one of your victims, Ms Seuren, and they are nine and seven. Until my remand of you, I was told that you had access to them every second weekend as well as on Tuesday night. I was told also that one of the girls has recently had some behavioural issues of some description. You also have a four year old son, Gabriel, from your relationship with Amy. That relationship has also ended but you still enjoy seeing your son. His life is complicated in that the mother is profoundly deaf. The child is not. You have the understandable worries and concerns that a father feels for his children.
36 There have been some health issues. You experienced chest pain on the eve of the first plea date back in late November of 2018 and were referred off to Monash Heart in Dandenong where you underwent an angiogram the following day. That happened to be the day of the plea so obviously the plea could not proceed. You were admitted in late December following further chest pain and underwent some tests and scans. The document is headed 'discharge summary', but that it is bit deceptive as it would suggest that you were in and out on the same day. That seems not to be so, and closer examination refers to a ‘CATH lab’ procedure that was undertaken on 31 December. That is presumably the angiography. So there was obviously a hospital admission which is as you remember it. Since then, you have had regular appointments with a cardiologist on a six-monthly basis with medication prescribed. You worry about your health and fear that you may have a premature death. You claim that you have been told that you will not make old bones but who knows where the truth lies there. I do note though that your mother did die way too young at the age of 57 or so. There is nothing by way of evidence placed before me suggesting there is any limited life expectancy in your case. I made it pretty clear to your counsel that in the circumstances of this case, I had great difficulties accepting anything by way of untested instructions from you on almost any topic. He chose not to call you which is a decision I well understand.
37 You are now single, and you were, until my remand of you, living in rental accommodation. I am told that you are engaged with your children and engaged also in the school community.
38 You have a relevant criminal history with appearances for making a false document and obtaining property by deception. You got a suspended sentence for those matters back in 2004. It is not the longest prior criminal history, but it is of note that you were on a community correction order imposed in March of 2014 at the time of some of the matters I am dealing with, including all of the Bankwest offences. That community correction order was imposed in part for obtaining a financial advantage. It has also been brought back for breach in May of 2017. There has been some other offending dealt with subsequently as well as a number of later offences. You were placed on another community correction order for fresh dishonesty offences including car theft, obtain financial advantage and a valueless cheque offence. That order was for 15 months and was made on 11 May 2017. As I have said, Exhibit D gives some details of some of those other matters. Your continued offending is a worry. If I may cobble together a broad chronology, you were on a community correction order from March 2014. The offending I am dealing with spanned December 2013 through to December 2014. In May 2015, you committed the Sturrock brief offending for which you were placed on the May 2017 community correction order. That involved another valueless cheque. You were first interviewed on our matter on 12 November 2015. The second interview was on 17 November 2017. The filing hearing was as I said on 1 December 2017. Later in that same month, you committed the Hollyoak brief offence with an obtain financial advantage relating to a pretty cruel duping of a family friend. That was dealt with in May 2019. The community correction order imposed on
11 May 2017 ran for 15 months to mid-August 2018. Whilst it does not appear that you breached that community correction order, you committed the Graham offences around late September of 2018, so shortly after the expiry of the community correction order. You committed the Harris brief offences In March 2019. So there has been some offending in the currency of your plea bail. I am not going to plumb the depths of those various summaries or the older ones. The theme is again of someone who just will not or cannot act honestly.
39 Undoubtedly, your criminal conduct in the past or the subsequent conduct is relevant to my task, though plainly you do not fall to be sentenced by me again for any of that offending. You received sentences and served them and the prior or subsequent matters do not aggravate the objective gravity of the matters that I must deal with. I do though, as I say, have to make judgments as to the need to deter you and to protect the community from you. I have to also consider your moral culpability and your rehabilitative prospects. The need to deter you is pretty plain.
40 Your counsel sought to explain the offending that I am dealing with and said that you were not living an extravagant lifestyle and were seeking to feel good about yourself through the acceptance and approval of others. That you had poor self-esteem. That you needed or wanted to create the illusion of being a successful or wealthy man especially to your partners. How that fully explains the obtaining in relation to the cars is anyone’s guess. The cars were returned. What account could you have given to your partner then to preserve the illusion or when you went together to 'buy' the next one? Not for one moment do I suggest that your partner had a role to play in any of this. But you got the use of the car and that is obviously part of what you wanted to achieve. Who does not like a shiny new car and no doubt part of your armoury when confronted would be to say that you had made an honest error with the cheque account balance. The house was a little bit different. You could never have hoped to obtain possession unlike the occasion where you have used valueless cheques to wave away or stall a landlord in the past. So it is a strange offence and maybe there is the aspect of big noting yourself in that you were swanning around 'buying' an expensive property. But what happened when the house sale fell through? How was the illusion not then shattered? What account did you come up with in relation to that? Who knows?
41 In any event, as the prosecutor I think correctly points out, it is not that uncommon a thing for someone to want to appear to be more affluent than they actually are. In fact, it is a very common motivator for dishonesty offences that come before the court. Mr Kenny argues that there is no evidence of an extravagant lifestyle and that you spent the $82,000 (that is an approximate figure of cash) on living expenses, debts and on others. In your police interview, you said you were trying to make yourself out to be the good guy paying money into your father’s accounts. See Question 73 and 93. I was told by your counsel that you had opened and were operating accounts in your father’s name and using them to deposit valueless cheques with a view to withdrawing the funds. That activity had nothing to do with your father or creating some favourable impression in his or anyone else's mind.
42 I am not satisfied on the balance of probabilities of the accuracy of any account you have given in relation to your motives and intentions. I do accept though that most of the offending was not particularly sophisticated and much of it was likely to come home to roost, and I do not see any evidence of any extravagant lifestyle. You are said to be highly intelligent and I suspect you think you are brighter than many and you are able to talk your way out of virtually any position. You always seem to have an answer up your sleeve or at least another cheque.
43 There is not much reduction in culpability residing in any of this material and insofar as Ms Lechner’s report to a large degree is dependent on your explanation to her, I make it plain that it reduces the value or weight of that report in my judgment.
Guilty Plea
44 I turn then to consider the submissions made on your behalf.
45 I turn firstly to your guilty plea. You have pleaded guilty. Maybe you would like to wind the clock back and ignore the last 13 months and your conduct in that period. Well I cannot. Your counsel concedes that I cannot and submits that the history of the proceedings somewhat lessens the mitigatory effect of your guilty plea. He concedes that your conduct has left me with no choice but to reduce the weight to be given to your plea. Had you pleaded when you could have, then the claim in your previous barrister's written submissions as to the savings brought about by the plea would have been entirely correct. You did not and though of course poor health led to the first adjournment and maybe even the second, by the time of the second plea date in April of last year. you took a deliberate course of action to alter your plea. I am not going to repeat the earlier detail about the chronology or the strong need for me not to punish you for that conduct, and I will not.
46 I am not saying I will ignore your guilty plea. Of course, I will not. I must take it into account. The community has been saved the time, cost and effort associated with the conduct of a trial up in this court. Witnesses have not been called. But how long would that trial have been? What is the actual saving when measured up against the time that has been frittered away dealing with your forlorn, spurious and ultimately abandoned application to change your plea. On each occasion of the listing of this case there has been a judge and a prosecutor. Sometimes defence counsel, sometimes not. There have been endeavours taken to obtain evidence from your past barrister and questions as to the waiver of privilege by your previous solicitor. They are not easy things to organise. The calling of your past barrister as a witness was teed up. He was going to be video linked in from a court in Tasmania. That had to be organised. There has been significant effort and inconvenience along the way. Come
23 April when the change of plea application was listed, I suppose really you had two choices. Continue the application to change your plea or not do so and face the music at long last. You had taken it as far as you could and what you then did is you simply abandoned the application.
47 You have facilitated the course of justice to the extent that you have ultimately pleaded guilty, but the utilitarian benefit is clearly more modest than would have been the case had none of the events of the last 13 months taken place. I do not accept your counsel’s submissions that I should treat your guilty plea as indicating a willingness to facilitate the course of justice or as indicative of your desire to take responsibility. You had simply run out of options. I cannot give your plea the weight it would have received had you pleaded guilty and maintained that plea back in late 2018 or even early 2019. It just does not have the same utilitarian benefit, but it still has some.
48 I will still pass a lesser sentence upon you than I would have imposed had you been found guilty by a jury after conducting a trial. We did not need a jury, we did not need witnesses, we did not need a trial. We have not had to have a trial and you have to get credit for that.
Remorse
49 Your counsel relies upon the presence of some remorse here. He points to your guilty plea and Ms Lechner’s view on that topic based on your presentation and on what you had told her back in 2018. I am not satisfied that there is any remorse in this case. Ms Lechner could have had no inkling of what would happen in the period since she saw you or the steps you would take to backpedal away from the account you gave her or from your admissions or your guilty plea. Your own affidavit denies guilt and asserts everything else under the sun other than your own guilt. The absence of remorse is, by the way, not a matter in aggravation. I clearly will not view it in that way, but your conduct over the last year is entirely inconsistent with the presence of remorse. I am not satisfied on the balance of probabilities that there is any remorse in this case and that is so despite your guilty plea and the admissions that you made to the police. Those sorts of things are often indicative of remorse, but they have I regret to say been entirely overtaken by later events in this case. I don’t believe, nor am I satisfied on the balance of probabilities, there is any remorse in this case.
Prospects of Rehabilitation
50 I turn now then to your prospects of rehabilitation. Your counsel argued that I could hold a guarded view. That was about as high as he could put it. He pointed to the steps you had taken in counselling and the tapering off of offences. That and the health issues and the quiet life you now lead and your hope to be part of your children's lives into the future. As against that though, of course I have the nature of this offending, some of it quite serious and a fair bit of which occurred whilst on a community correction order. It was quite deliberate. It was quite planned and some of it with some modest level of sophistication. You have relevant prior history and you have relevant subsequent matters. This was not a single spontaneous crime or some minor or transitory error of judgement by a man with a blameless past. You were a mature man with a relevant history and offending in a quite brazen and calculated fashion over a sizeable period of time.
51 You have breached two community correction orders in the past. You have offended after the matters I am dealing with and it would seem whilst on bail for these matters. Such explanation for your offending as is given to Ms Lechner is of little comfort here. Your culpability was high enough in my judgment.
52 You have disclosed that you are just quite dishonest. Ms Lechner does not provide any complete answer here as to why. I do not know why you are as dishonest as you are, but you just are. That is so despite treatment in the past which I was told about by your counsel, some of which is referred to in
Ms Lechner’s report, some of which is referred to even in your interview from memory. I do not have the sense that one sometimes has of any regret for the past criminal act. You have none. You were prepared to say or do pretty much anything in 2013 or 2014 to dishonestly obtain an advantage and not that much has changed. Your moral compass is for some reason wildly astray. You have in my judgment exhausted any claims for great leniency.
53 I acknowledged it is not a good time to be in custody and I think it will be quite hard for you. You have pleaded guilty and I do not ignore that. You still have some level of family support with a close bond with your father. Your criminal history is not overly lengthy but is of obvious relevance to the judgments I can make as to risk of reoffence, rehabilitative prospects and community protection, as well as specific deterrence and where that fits in this exercise. I then look at your lack of remorse and your continued offending in the lead up to this case, and there is no basis for me to be particularly optimistic. I think those future prospects of rehabilitation are actually relatively poor. There is plainly a sizeable enough risk of reoffending in the same or a similar way. I must deter you, that much is plain. I must also strive to protect the community from you.
Increased Burden: COVID-19
54 Your counsel submitted that the COVID-19 global pandemic would make your time in custody more difficult.
55 The Court of Appeal first dealt with the issue of the COVID-19 virus and its impact upon prisoners in a decision of Brown in late March of this year. It seems such a long time ago now. They correctly cautioned judges against speculating. There have been many decisions since including amongst them, cases of Re Broes [2020] VSC 128; Re McCann [2020] VSC 138. Re Tong [2020] VSC 141, Madex [2020] VSC 145, Sazimanoska [2020] VSCA 66 and Nguyen [2020] VSCA 76, Nicholls [2020] VSC 189, Re Diab [2020] VSC 196, Wyka [2020] VSCA 104.
56 It is a rapidly evolving setting changing almost week by week. Things are looking far less gloomy than they were in late March when the courts first pronounced on this topic. The curve has flattened out in the community and the rate of new infections is probably envied by many countries around the world. There have already been some steps taken to relax some of the restrictions with more relaxations on the way in a staged return to a different life.
57 I cannot really know how the global pandemic will actually impact upon you as a prisoner. Only time will tell. I do not doubt though that the pandemic and the response of Corrections to it will be generating stress amongst prisoners.
58 I do not believe it is speculative to conclude that there is an increased prison burden in a case such as this. Lockdowns are already in place to a small degree and visits have been suspended. I work on the theory that there will likely be lockdowns to some extent and no personal visits, but also with a spectre of reduced programs and courses. Some courses might be done by way of video link as is referred to in the answering submissions by the prosecutor filed today. None of these things will be easy for any prisoner, much less a prisoner such as you who is fresh to the prison experience. How long will these things continue? I just cannot know that. But I think it is likely they will continue as social distancing and isolation from contact, is said to be the key to avoiding the spread of this virus and how else can that really be instituted in a prison setting. It is clear that the need for social distancing is going to continue, both in the community and in a prison setting, notwithstanding our good progress and notwithstanding any future relaxation of the stay at home directions which come into effect. That is already the message after the first relaxation came into force a little time ago. We are still meant to be practising social distancing.
59 It seems likely then to me that the virus itself and/or the prison authorities concern about the virus will be likely to limit social interaction, work opportunities and access to courses, education and programs. Your counsel filed a further addendum as to what had befallen you since you were remanded, and I mark that as part of Exhibit 1.
60 As predicted, you went into isolation for 14 days upon reception, and that has been a very hard initiation to prison life for you. This is not a good time to be going to prison. There are increased stresses and an increased custodial burden here for these various reasons and I do take them into account in your favour. You also do have some health vulnerabilities. There is no material before me speaking of any heightened risk if infected, but you are not in good health and though there is obviously some speculation in taking this aspect of vulnerability into account, I think it is appropriate to do so in this case. At the very least, you would worry about the risk and consequences to you upon being infected.
Other Increased Burden. Physical and Other Issues
61 Quite aside from the COVID-19 increased burden, I find an increased burden owing to the health conditions placed before me and also your past employment as a prison guard. Your counsel conceded there was little information available and no suggestion that your health conditions could not be medicated and appropriately managed in prison. He argued though that still there would be some anxiety. There is nothing really in the materials suggesting what those increased burdens will be or how they will play out, but rightly or wrongly, I will find some increased burden notwithstanding the pretty unsatisfactory evidentiary basis and I take that into account. I also take into account the likelihood of some worry and distress serving a prison sentence as a former guard and that will arise from potentially being brought into contact with former prisoners that you have guarded or staff you have worked alongside. Neither of those things are pleasing prospects, not at all, and I do make some allowance for them. You counsel on the plea had raised that those things, especially the past employment as a prisoner officer, may lead to some consideration of protective custody or security considerations being employed. This is in part now touched upon in the further addendum that I referred to a moment ago. Your instructions to your counsel were that you would be subject to a regime of significant isolation for your entire sentence owing to your past employment as a prison officer. Mr Pickering has placed before me material by way of an answering submission to the effect that that this is not likely at all. Being in protection, that may well take place. That is spoken of in that submission. I should say also that there is no objection taken to the form of that answering submission. I mark those submissions as part of Exhibit A. It has been done at late notice and no doubt the case could have been stood down to permit that to be presented by way of affidavit. But there is no challenge to the form of that. What the material makes plain is that being in protection does not translate into isolation at all. That is just not the way prisons function in this day and age. Often enough, it is raised on a Plea in a very stark fashion without any evidentiary support. What is happening at the moment in terms of your isolation is the isolation requirements arising from the COVID-19 reception of a fresh prisoner, but it seems apparent to me that there are many aspects of prison life where there is very little distinction between prisoners in protection and prisoners who are not. That really is the gist of the material placed before me by the prosecution and I accept that is so. I certainly am not able to find that you will serve your prison term in a state of isolation or in a position that significantly disadvantages you from prisoners who are not in protection. I take into account the increased burden that I raised at the start of this topic though.
Ms Lechner’s Report
62 I have already mentioned Ms Lechner’s report and I am not going to return to it now in any detail at all. I have read it and do take in into account as far as I am able to. Your counsel was explicit in conceding that none of the six principles from the case of Verdins v R had any application in this case. Still, the report was of use to me and gave me at least a sense of your personality and at least some inkling as to the motivation behind some of these offences.
The Delay
63 Mr Kenny did not make a song and dance about the delay in this case. There is no real explanation placed before me as to the delay in the laying of charges, with an interview in 2015 and then again in November of 2017, with a filing hearing on 1 December 2017. As I said earlier in these reasons, you played a straight bat in the first interview and certainly made no admissions which would have given any comfort to the police about how the matter would unfold. So there would have been a need to further investigation certain aspects. But it certainly took a fair time to get back to you and I do not know why it did. Once charged, there were a number of mentions in the Magistrates’ Court before going straight hand up to this court with a not guilty plea. Then we have the chronology that I spoke of earlier in these reasons which I will not repeat. Ordinarily, delay can be given some mitigatory weight for two reasons. Firstly, as providing in itself a penalty by way of the matters being suspended over the head of an accused. Secondly, the delay may permit a more favourable conclusion as to the prospects of rehabilitation given that there can be and often is favourable progress in the course of a delay. Here you had nothing over your head until late 2017 and I have explained what has taken place between then and now. True it is, there were some health issues that led to some delay and they are not laid at your feet, but the last 13 months is directly the result of your desire and efforts to change your plea. I cannot give much regard to delay in this case in the sense of there being that additional penalty spoken of in the case law. As to the second limb of delay, you have done yourself no favours in the course of that delay. Unfortunately you have just continued to offend, not just since being charged. You had continued to offend after the 2013/14 offending and some of the later offending has been whilst on bail. The delay does not assist you greatly in that regard.
The Offences
64 I turn now to the offences and as to those, I am not going to set out all the detail again from what was a very lengthy summary. The summary will remain on the court file. Your counsel concedes that the quantum is substantial. Well of course it is. I do not confuse financial advantage with gain in your hands. It is not just a matter of adding up the amounts in the indictment and providing a total and then dealing with you as though you had gained that sum. Of course you had not. Nor though am I to look at the financial advantage charge and look only to what you physically obtained out of the given charge. The financial advantage is spelt out in the charge itself and obviously for charges where you were awake to potential bank errors at Bankwest, you were depositing valueless cheques in the hope that you may have access to that amount. Most of the charges are financial advantage charges and some of those charges relate to evasion of a debt. So evading a debt to the Eastern Football League or to your landlord or in relation to the purchase of the unit or to your ex-partner. They still have impact. Some of the cheques to Mr Lynch were honoured. As to Charge 4, you had signed a contract of sale for the unit and your counsel concedes that the property was then taken off the market and that was for about seven weeks. Your partner had the accommodation up in Queensland courtesy of your valueless cheque, not that she was in any way responsible for that. The Bankwest conduct was serious offending. It was more sophisticated than the deceitful use of a cheque in person. These offences involved you going online, expending significant enough effort opening a number of bank accounts and undoubtedly you were doing so with fraud in mind. You must have had some understanding of a fault in existence in the Bankwest procedures. You certainly were aware of that by the time you committed Charge 12, as you had already used a valueless cheque in Charge 11 where there were withdrawals. This was serious offending. Of that there can just be no doubt. I have been referred off to the case of Bulfin and it is a bit hard to know what that case has got to do with this one. You are not really to be classed as a white collar criminal in my judgment. I am not dealing for any particular breach of trust in this case. I do not really follow paragraph 9 which concedes a breach of trust. It is just not the way that I see this case. But this was calculated, deliberate and serious enough offending. You got your hands on over $80,000 of money you were not entitled to. The financial advantage obtained is of course far more. You hoped to access the funds when they were incorrectly credited. Just a consideration of the summary shows the dates of the many transactions you made on those various accounts including going to a variety of branches to make transactions including withdrawals. Also, transfers between these accounts. This was serious and persistent criminal conduct and the serious criminal culpability is not diluted by the modest enough scale in terms of cash into your actual hands.
65 I note that as across the indictment, there are 5 continuing criminal enterprise offences.
66 It is true that the monetary amounts are small enough when compared to many cases which are brought before this court. But we see some massive monetary amounts in this court. Your criminality was high and your conduct serious enough. The cars which were obtained were returned or repossessed, but what was returned or repossessed was no longer a new vehicle and the loss would be sizeable enough. So this was serious enough offending by a man who was at times on a community correction order and has relevant criminal history and ongoing offending in the long period since this offending. There is no significant reduction in your culpability at all.
67 No submission was really made on this topic but I do recognise that I am dealing with offences that are, at least relatively speaking, stale. The problem is that you have to some extent contributed to a decent enough portion of the delay and despite the passage of time you have continued to offend.
Purposes
68 I have to consider a number of purposes of sentencing and they are not limited only to your prospects of rehabilitation. I do not ignore your prospects of rehabilitation, but those prospects are, in my view, as I have said, quite poor and that purpose, rehabilitation, must surrender some ground to a number of the other sentencing purposes in this case.
69 One of those is punishment. I am required to punish you, but it must be just and it has to be proportionate to your offence. The objective gravity is not aggravated by your past offending. The objective gravity is not aggravated by the course of the proceedings and your attempt to change your plea. Punishment is though an important sentencing purpose in this case.
70 I must also denounce your conduct. That is an obviously important purpose here.
71 I must deter you as well as others from offending. General and specific deterrence and community protection are all relatively important sentencing purposes in this case.
72 Specific deterrence relates to the need to deter you. It is of obvious importance here. You need to get it into your head you are not free to act dishonestly. You must desist in doing what you have been doing. Courts have tried in the past to deter you and they have not succeeded. I must try again.
73 I must also protect the community from you. Again, plainly, that is an important purpose. You are more than just a nuisance. You dishonestly target or did in the course of this time frame a variety of people and institutions that you come into contact with. An ex-intimate partner, friends, acquaintances, landlords, businesses, banks. You do not really discriminate. I must to an extent protect the community from you.
74 General deterrence is another sentencing purpose which has importance in this case. This court must send a clear message to other individuals in the community who might be minded to commit these sorts of serious enough dishonesty offending.
75 I do pay regard to current sentencing practices. It is not a single controlling factor. I have looked at the various cases that I have been referred to by your counsel as well as the broader Judicial College of Victoria document and the Sentencing Snapshot I was taken to. I have said before and I suspect I will probably have to say again in the future, that the use of other cases, even comparable cases, has inherent and obvious limitations. It has become greatly overused in this court. That is because when all is said and done, I have to pass an appropriate sentence in your case. There are no two cases that are ever the same. That is because no two crimes are ever the same and no two offenders are ever the same. The use of non-comparable cases is even less useful but occurs far too commonly for my liking. It happened in this case.
76 None of the cases referred to were comparable. I was not at all assisted by the process of being taken to the four examples of sentences imposed by single judges of this court. I was taken to Nirens. Well that was massive fraud with a large enough sentence. What was the purpose of taking me to that? It was not comparable. It could only be to try to establish some theoretical ceiling. That is not a valid process at all. There is no such thing as one correct sentence either. I was taken to Greer. In fact, it was one of my own sentences. Mr Kenny had worked on what was referred to in the summary. He had not even read the case. But just on the summary, it just was not comparable. There were fewer transactions, a less serious history, more favourable prospects of rehabilitation and risk of deportation for starters; so a host of differences in the offending and in personal circumstances. He took me to Tan. A young solicitor, 28 years old, who had lost his practicing certificate but who was under financial pressure and who in a single stroke of the pen stole a large amount from a trust account. A person with no prior convictions, with remorse, with admissions to police, with assistance to the authorities and with excellent prospects of rehabilitation. What was comparable? There was nothing that was comparable. Why was that case selected? Well obviously for the disposition being a community correction order and some focus on the cash amount which was higher. But it was an amount taken in a single transaction by a man described in the way that I have described with a lack of history, no priors and those excellent prospects. I ultimately intervened when I was taken to the case of De La Torre. Again, it was immediately apparent that it was not in any way a comparable case. Why then was it selected? Because of serious offending in that case, the outcome being a community correction order but with a host of telling differences.
77 None of the sentencing cases were actually being raised as containing any matters of principle. Mr Kenny was going to the detail of those cases in an endeavour to distinguish your case from this case or that case as though those cases were somehow precedents. At one point I pressed him as to what the relevance of one of the cases was. He said it demonstrated current sentencing practice. I corrected him and said it was a single sentence of a single judge of this court.
78 The unspoken slant of this style of advocacy is to the effect that these other offenders were somehow worse than you or their crimes more serious, and yet they received a particular sentencing outcome, and that hence, you should do better than those others by way of sentence. It is an approach which has no validity or merit. That is not what a judge must do. Incidentally, another judge in any one of those other cases may have passed a greater or lesser sentence and been entirely within his or her rights to do so. This wild goose chase through other sentencing decisions that judges in this court are routinely taken on is of minimal value at best in my view.
79 Statistics have inherent limitations. So do outcomes in other cases and I really was not assisted by being taken to cases which were not comparable.
80 Sentencing is not some mathematical exercise. The appropriate sentence is not arrived at by imposing upon you the sentence imposed in another case on another offender for another crime or selecting the most common sentence imposed in the past as disclosed by the statistics that are held. I have to pass an appropriate sentence upon you for your crimes. Crimes committed over a significant period by a man who was at times on a community correction order and a man with relevant prior history. One who has continued to offend, one who I find has no remorse and quite poor prospects of rehabilitation. One who has through the various matters in mitigation that I have commented on to this point. There was nothing resembling a comparable case. If there had been. presumably Mr Kenny would have taken me to that and not have been taking me to dissimilar cases.
81 I have to consider the nature and the gravity of your offences. These were not minor matters. They are not all at the same level of seriousness, but a number are sizeable enough to be badged as continuing criminal enterprise offences owing to the quantum.
82 Your counsel argues that a community correction order is open. If such an outcome could adequately achieve all the purposes of sentencing, well of course I would be duty bound to impose one. That is because prison is a disposition of last resort. See s.5(4) and 4A of the Sentencing Act. Plainly, a community correction order is not open in this case. Plainly, I must imprison you and that is despite what is said in the case of Boulton to which I was referred. That case and many cases since recognise that there will be cases where a community correction order cannot achieve all the purposes of sentencing and this is such a case. Community protection, specific and general deterrence, punishment and denunciation are important here and though I do not ignore your prospects of rehabilitation, you have, in my assessment, but quite poor prospects of reforming. Even a combination order would not give adequate weight to these various purposes and in any event, I only have at my disposal a period of a little over 12 months' imprisonment to work with, as you have only served a handful of days by way of pre-sentence detention and must be ready to commence on a community correction order within 12 months. That is obviously impossible here given the offending and the purposes which must be given adequate weight. A community correction order is not even as a matter of theory open and that is before one even considers your past failures on such orders and as importantly the complete failure of those past orders to deter you from dishonesty offending. It is clear that the head sentence will exceed the period where I am required as a matter of law to impose a
non-parole period and prohibited from combining any such order with a community correction order.
83 I have to proceed on the footing that you will serve every day of the head sentence that I will soon pronounce. I am not able to take into account the possibility of release on parole or speculate on that issue. The Adult Parole Board will make the decision as to whether you can be released on parole. It has nothing to do with me. I must not even consider or speculate about what they may or may not do. It is none of my business. It will be between you and them.
Totality
84 I have taken into account the principle of totality of sentence.
85 I have engaged in a last look at the sentences imposed by the court, and the total effect of them in endeavouring to guard against the imposition of a crushing sentence upon you and to ensure that the overall effect is consistent or commensurate with your overall criminality. These were separate crimes with separates elements, separate victims, separate values and separate impacts. There were separate periods as well. Some are continuing criminal enterprise offences, some are not, though I do note the cases dealing with the impact of those provisions. See the cases of R v Rousetty [2008] VSCA 259, Abela v The Queen [2014] VSCA 266 and Shiel v The Queen [2017] VSCA 359. The doubling up of the maximum does not compel a given sentence or require some automatic increase and I am careful about that. The criminality you were engaging in was not increased one jot owing to the fact of you happening to sail above the continuing criminal enterprise threshold amount and I pay strong regard to that.
86 Some of your offences produced loss, others not so. Some followed a pattern against the same victim and so there is, in that aspect, a course of conduct. For instance, the Bankwest offences. There was also, as we can see, a link between Charges 6 and 8, which I will recognise in my order for concurrency. But I cannot just roll all the sentences in together. The need for some level of cumulation is very plain.
464ZF Order.
87 There was an application for a forensic sample in this case that is not opposed as I understand it and I have signed that order and now pronounce it in abbreviated form.
88 I order pursuant to the provisions of the Crimes Act that you undergo a forensic procedure for the taking of a scraping from your mouth in accordance with the relevant provisions until a sample of sufficient standard is obtained for placement on the data base. I am satisfied that the granting of the order is appropriate owing to the seriousness of the circumstances of the offending, the prior convictions that you possess, the fact that the order is not opposed and I judge it to be in the public interest.
89 I am authorising the least invasive procedure that can be authorised. I have not authorised a blood sample. Indeed, I have crossed that out on the actual order. So as you will understand, someone in a position of authority will approach you with a mouth swab and run the swab around the inside of your mouth to obtain the sample. They are entitled to use reasonable force for that of course and I have to tell you that notwithstanding your present lack of opposition, in the event that there was any difficulty in obtaining it, no doubt the authorities would be back before me making application for a blood sample. But it is not my practice to authorise that at first instance.
90 I will have you remain seated then and I will pass sentence upon you. You will not necessarily follow this as we go through the sentences. I will mark out the level of cumulation in the course of my reasons, tell you what the total effective sentence is and then fix a non-parole period. Then it will become clear to you.
91 Charge 1, I convict and sentence you to 12 months' imprisonment.
92 Charge 2, I convict and sentence you to 21 days' imprisonment
93 Charge 3, I convict and sentence you to three month's imprisonment
94 Charge 4, I convict and sentence you to 12 months' imprisonment
95 Charge 5, I convict and sentence you to 12 months' imprisonment
96 Charge 6 relating to the financial advantage pertaining to Jodie Sueren, I convict and sentence you to 12 months' imprisonment
97 Charge 7, I convict and sentence you to four months' imprisonment
98 Charge 8, I convict and sentence you to six months imprisonment
99 Charge 9, which is the charge of attempt, I convict and sentence you to
eight months' imprisonment
100 Charge 10, I convict and sentence you to three months' imprisonment
101 Charge 11 to 18 involve the various Bankwest transactions. It was serious criminal conduct. These are a series of offences of the same description. It was a pattern of offending spanning August through to December 2014 and I believe it is both open and appropriate to pass an aggregate sentence. It is offending which truly is, as s.9 of the Sentencing Act describes, a series of offences of the same or similar character. No doubt the precise same outcome would be produced by passing the individual sentences and then making orders for partial cumulation, but I really see no useful purpose in doing so.
102 On these eight charges, so Charge 11 through to 18, you are convicted and imprisoned for an aggregate period of two and a half years. That 30 month term is therefore the base sentence.
Cumulation
103 I then make the following orders for cumulation;
· One month of the sentences imposed on each of Charges 3 and 10.
· Two months of the sentence imposed on each of Charges 4 and 9 and.
· Three months of the sentences imposed on each of Charges 1, 5 and, 6 will be served cumulatively upon the base and upon each other.
· The sentences imposed on Charges 2, 7 and 8 will be served concurrently with all other sentences.
104 This produces a total effective sentence of three years and nine months' imprisonment.
Non-Parole Period
105 I fix a period of two and a half years during which you will not be eligible for release on parole.
Section 18
106 You have already spent 13 days in custody by way of pre-sentence detention, and that period is declared as having already been served under this sentence pursuant to s.18 of the Sentencing Act.
6AAA
107 Had you been found guilty of these offences following a trial, I would have sent you to prison for five years. I would have fixed a non-parole period of three years and eight months. That is to be noted in the records of the court.
Continuing Criminal Enterprise Offender
108
I have sentenced you as a continuing criminal enterprise offender on
Charges 4, 6, 8,1 3 and 16 and that fact is to be entered into the records of the court.
109 Let me just see if there are any other matters. Any other matters that I need to deal with at all? You are probably all doing the maths at the moment.
110 MR PICKERING: I do not see any, Your Honour, no.
111 HIS HONOUR: No. Mr Kenny, any other matters?
112 MR KENNY: No.
113 HIS HONOUR: Are each of you across the very sentences that I have passed and the cumulation? I can repeat the cumulation if you want. Is there any doubt about the mathematics of it at all?
114 MR PICKERING: As I add it up, Your Honour, I think that is right.
115 HIS HONOUR: Yes. Yes, all right. Well I have looked at it carefully and I have considered it myself. Nothing else to say?
116 MR PICKERING: No, Your Honour.
117
HIS HONOUR: No. All right, you have to make arrangements presumably,
Mr Kenny, to speak to your client in an appropriate sort of setting. I do not think it is appropriate that I use the link in this sort of setting. My staff would be sitting in court and so you will have to do that in due course. I am assuming you will speak to your client at some point.
118 MR KENNY: Yes.
119
HIS HONOUR: Yes. I will sign the formal order then. I can sign the formal order downstairs. That completes the matter. I thank you each for your assistance in the course of the plea. Mr Baird, that completes the matter then.
Mr Kenny or his instructors will be in touch with you to discuss today's outcome. What I will do at this stage is I will disconnect the link. Thank you.
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