Director of Public Prosecutions v Baker
[2021] VCC 1742
•5 November 2021
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-00860
Indictment No. L12407714
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JOHN BAKER |
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JUDGE: | HIS HONOUR JUDGE TINNEY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3 November 2021 | |
DATE OF SENTENCE: | 5 November 2021 | |
CASE MAY BE CITED AS: | DPP v Baker | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 1742 | |
REASONS FOR SENTENCE
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Catchwords: Obtain financial advantage by deception and make and use false document - No significant prior criminal history - 32 years old now - Early guilty plea – COVID-19.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr S. Davison | Office of Public Prosecutions |
| For the Accused | Mr K. McDonald | Milardovic Legal |
HIS HONOUR:
1 John Baker, you have pleaded guilty to four dishonesty offences laid on the indictment that has been filed in this court. They are two charges of obtaining a financial advantage by deception and two charges of making a false document. Three of these charges are between dates offending and two of those, being the charges of obtaining financial advantage by deception, are described as rolled up charges.
2 You have a short criminal history and you are 32 years of age.
3 Each offence is punishable by a 10-year maximum term and none of the special provisions within the Sentencing Act 1991 apply here, for instance Category 1 or 2 offences or the standard sentencing scheme. My sentencing discretion is not in any way fettered.
Facts
4 Mr Davison appeared to prosecute on the plea and he relied upon a written amended summary of prosecution opening dated 1 November 2021. Your counsel Mr McDonald told me it was an agreed opening and that document was marked as Exhibit A on the plea.
5 There is then no need for me to work my way through the detailed summary. I will sentence in accordance with it.
6 I still should say something though and will do so very briefly. You entered into a chattel mortgage with VW financial services (I will refer to them hereafter as VW) for the purchase of a 2018 Chevrolet Silverado. The credit amount was $145,330 with a total to pay under that contract of $176,635. You signed that document. This was entered into on 20 December 2019. You were incurring a liability of monthly payments of almost $2000 per month.
7 By early January of 2020, you were trying to offload that very same vehicle and responded on 13 January to an advertisement that had been placed by a man named Jordan Roche. He lived in Western Australia. He was seeking to swap his 2014 Camaro for what he described, an 'American truck'. The summary sets out the details of the correspondence that was entered into between the two of you. He asked about finance owing on your vehicle and you said there was about $5000 owing and you could get a payout letter. You in fact got one on or about 15 January 2020 showing there was $165,553.49 owing as that payout figure. You created an altered form of that document later that same day, removing the one and the six out of the equation, and so presented that vehicle as having a payout of only the $5553.49. That was of course totally false as you well knew.
8 You then agreed to swap your vehicle - I say your vehicle, this the vehicle under that contract - for his 2014 Camaro with an additional $10,000 paid by Mr Roche, being the payout figure to VW of the $5553 as well as $4446 cash going into to your bank account. Plainly enough, the Camaro was a highly valuable car. Your counsel suggested it was worth somewhere in the vicinity of $95,000 to $110,000. The precise value is not critical. Anyway, the deal was struck. You each shipped the vehicles to one another, yours travelling west and his travelling east.
9 Mr Roche discovered when dealing with a VW dealership in Perth that the vehicle he thought was free of any encumbrance had the very large amount owing on it that of course you knew was owed. The payout letter you had provided was investigated and was obviously found to be fraudulent.
10 You had in the meantime applied on 6 February 2020 to VW for a second chattel mortgage, this time in relation to a 2018 Camaro for around $99,000. That application was subsequently cancelled once VW discovered the fraud in relation to Mr Roche. Now, there are no charges in relation to that second application for the 2018 Camaro by way of that application for chattel mortgage. The fact is though none of your conduct to that point is suggestive of any financial strain on your part. The chattel mortgage in relation to the Silverado which was after all entered into only on 20 December 2019 had a payment per month of $1991. The second chattel mortgage you endeavoured to enter on 6 February 2020 for the 2018 Camaro would have incurred an additional $1500 per calendar month.
11 Anyway, once Mr Roche discovered the amount owed to VW, you and Mr Roche agreed to reverse the various deals and return the vehicles and you paid back the $5000 to Mr Roche, so he was ultimately not out of pocket.
12 This had all unravelled by February or March at the latest. Demonstrably then, this dishonesty had absolutely nothing, nothing to do with COVID-19 or the impact of the global pandemic upon your business. You were after all arranging the swap of a vehicle. How would that restore your financial position if it was precarious? Further, as at the date of these events, COVID had not even landed a blow in this State as you well know. You were entering into what you knew was a highly dishonest transaction as soon as you were communicating with Mr Roche and entering into arrangements with the Silverado which you knew was almost entirely encumbered. It was, though you are not keen to admit it, highly dishonest conduct and your preparedness to make the false document sums it all up. It was just totally fraudulent.
13 Incredibly then, having somehow fortuitously avoided any police scrutiny or investigation of what I will describe as that first dishonest conduct relating to Mr Roche, you then engaged in similarly dishonest conduct with another purchaser. This was in April 2020. On 10 April, you were advertising that same Silverado for $115,000 on Gumtree which is an online marketing site. You were also saying though that you were prepared to swap the car for a wake boat or a bobcat excavator with cash coming your way or that you might even swap it for another car or ute with some cash coming your way.
14 Well, Queensland-based Mr David Williams saw your advertisement, he liked what he saw and so commenced the communications between the two of you. He obviously thought you were honest. He did not know you were a crook. But you were. You were starkly dishonest again. A price of $115,000 was agreed between the two of you. You took a deposit of $3000 on 12 April and then a further $12,000 on 19 April. In early May, Mr Williams did a security check and learnt for the first time of an encumbrance. That obviously did not disclose the extent of the encumbrance in terms of the value. When he quizzed you about this, you confirmed that there was an amount owing to payout VW. You said you would get the payout figure.
15 Well, he came from Queensland to Melbourne on 7 May of last year to look at the car. He was happy with what he saw and happy with the payout letter you provided showing that there was only that sum of $5553.49 owing. Of course, you just lied about the payout figure. You lied about the reasons for the date on that the document. You said you had been unable to get an updated figure due to COVID-19. It was all just total nonsense. This was not just online conduct. You had picked this man up at the airport. He was only in this State because of your dishonesty to that point. You have driven him to your property and you are looking him in the eye and telling him these lies.
16 You had many opportunities to pause for thought and to consider the ramifications of what you were doing. He in fact paid that amount of $5553 to VW to clear the encumbrance, or so he thought, and paid you the balance owing being $89,446 and he took the vehicle back to Queensland.
17 On the same day 7 May, VW emailed you advising you of the cancellation of the direct debit facility that had been set up in relation to the 2018 Camaro chattel mortgage application and told you that there were with no future payments to be deducted. By then of course, the application had been refused. You were later to use that document as I shall soon relate.
18 So you had been paid a total of $110,000. Mr Williams was happy with his vehicle but between 13 May and 5 June he was contacting you, trying to chase down a letter conveying that the title was clear on that vehicle. He still thought he was dealing with a person who was honest. He was not. You ultimately, after making a lot of excuses, sent to him a doctored letter relating to the correspondence you had received from VW in relation to the 2018 Camaro but purporting to show clear title for the Silverado. You had used that email that had been sent to you on 7 May by VW finance and altered the identity of the vehicle to match it up with the Silverado and you did that to convey to Mr Williams that there was clear title which was what he was worried about. He was prepared to pay you the outstanding amount of $5000 for the lid, that amount had been held back to that point, so by this stage he had paid $115,000.
19 Well, he was happy enough with his vehicle, that is until he realised it was not his because it was not yours. This is what you have created. A man travelling down from Queensland, then driving the whole way to Queensland with this vehicle that you had no right to sell purely as a result of your dishonesty. Then he learns that it is not his vehicle, it was not your vehicle and he learns that in the worst fashion really. Repossession agents turned up out of the blue at this house with a court order on 4 September 2020 and seized his vehicle. Well, happily, he went to the police in Queensland and your conduct has now been exposed.
20 Warrants were executed down in Victoria in October 2020 and you were arrested and interviewed. Frankly, the less said about your interview the better. You were not at all honest in that interview as you surely must know. That is not a matter in any way in aggravation. Simply though, your counsel cannot point to your making truthful or complete admissions in that exchange. You did not. You gave a cock and bull story about not knowing the size of the payout figures and having an explanation that you had paid significant amounts of the debt owing which would explain why the payout figure had so significantly reduced. Total nonsense.
21 The police presented you with the evidence of the document that had been sent to you from VW showing the true payout figure and then they showed you the document that had been given by you to Mr Williams with the altered amount. And at that stage, you closed your lips. You were not prepared to answer the questions about the payout letters or their obvious alteration. Well, that was your right. It was clearly though a very incomplete account given by you. Massive minimisation of what was plainly very fraudulent conduct by you.
22 You said for instance at Questions 243, 244 towards the end of the exchange - and by the way, this exchange did not deal with the earlier transaction. Nothing is said about the earlier transaction with Mr Roche. You were not being interviewed about the Roche transaction. Towards the end of the interview at 243, 244, you said this: 'I don't know what more I can say. As I said, I'm not going to tell you it was done the right way but…. I definitely wasn't trying to scam anyone for money or anything.'
23 Well, that was total rubbish. You were. You definitely were and you knew you were and this process of minimisation worryingly has to a degree continued in your dealings with Mr Cummins far more recently.
24 The summary details the items found on your mobile phone disclosing how you had altered the various documents.
25 Ultimately, on 23 November 2020, you paid out the vehicle by paying $165,553 to VW. You paid VW their legal fees of over $3000 and you paid $21,472 into Mr Williams' lawyers trust account to cover their costs and expenses. See Exhibit 5. So the debt has been cleared and Mr Williams has at least been left with clear title. That was done with money you borrowed from Ms Naumovic. Heaven knows what you have told her about your conduct.
26 What a saga though for each of these unsuspecting purchasers who were treating you at face value as a person who is honest. You were a crook at the time that you engaged with them. It was flagrantly dishonest conduct by you. A total scam as you know and as you knew. At least though they are not out of pocket.
27 So much then for my short summary of the summary. I sentence pursuant to the more detailed agreed statement which has been marked as Exhibit A.
In Mitigation
28 Your counsel Mr McDonald conducted the thorough plea on your behalf. He relied upon a written outline that was dated 31 October.
29 He placed before me details of your personal and family background including details of your education and employment history. He made some submissions as to the relative gravity of the offending and the relevant sentencing principles in play here, also as to your rehabilitative prospects.
30 He placed before me a report from Mr Cummins as well as references from your grandfather, from that friend Ms Naumovic, from Ms Penn the mother of your son, and also one from your accountant. He recognised in the course of his submissions to me the very real limitations of Mr Cummins' report. He recognised also that your suggested motivation, that is financial need, really did not seem to be consistent with your actions in purchasing one car in December 2019, endeavouring to swap that car for another in mid-January 2020, and also seeking to enter the second chattel mortgage for the 2018 Camaro and finally offering to swap the Silverado in the second leg of this fraud for a wake boat or bobcat or other vehicles. He accepted that your explanation of financial need was to a degree problematic as was the suggestion which was swallowed hook, line and sinker by Mr Cummins that this conduct was driven by COVID-19.
31 Your counsel relied upon the following matters in mitigation:
· The admissions that you made to the police as well as your early guilty plea in the midst of the global pandemic, far greater weight was placed on the second leg of that submission, that is the early guilty plea in the midst of the pandemic;
· He relied upon the fact of there being full restitution here;
· The absence of any sizeable criminal history;
· When I raised it, Mr McDonald made a brief submission as to the impacts of COVID-19 upon your custodial experience should you be sent to prison.
32 He was arguing that a suitably conditioned community corrections order was open in this case.
Prosecution
33 Mr Davison on behalf of the Director of Public Prosecutions had prepared some written submissions as to sentence which were dated 1 November 2021 and marked as part of Exhibit A. I see no need to repeat those matters. They went to the relevant purposes of sentencing and matters of aggravation and mitigation here. They were generally uncontroversial. So too were the oral submissions he made. He raised issues as to the suggestion of COVID-19 or financial need or concern for your subcontractors as providing the motivation here. He dealt with the aggravation of committing the second set of offences (the Williams matter) after the unravelling of the earlier fraudulent Roche transaction. He made submissions as to your ongoing minimisation of the seriousness of your offending notwithstanding your guilty plea. However, the Director of Public Prosecutions of this State conceded the availability a standalone community corrections order in this case. They were not suggesting that it was necessary in all the circumstances to send you to prison.
34 Well, I want to make very clear I am not bound by submissions as to sentence made by either party. I will not ignore any submission made to me by either party but I will make my own judgments as to the seriousness of the offence and the range of available sentences open to me. That is because I have to exercise my own sentencing discretion. This was serious criminal conduct and the chronology that I have spelt out does you no favours. It makes clear to me that specific deterrence is of real importance in this case. That much is conceded by your own counsel.
Background
35 I turn briefly to your background. It is set out in the written submissions as well as in the report of Mr Cummins. I am not going to descend into the fine detail of your background for a few reasons actually. Firstly, I have no reason to doubt the details of your personal and family background which has been placed before me and secondly, it does not seem to me that your developmental background has anything at all to do with your decision to commit these crimes.
36 It was an unusual background where your grandparents really became your parents. They played the major role in looking after you and the reasons for that are explained in the report. Your mother had serious mental health issues and you had virtually no contact with your father. I do take into account your background as far as I am able to but there is no reduction in your culpability in this case.
37 You have one sister. She is viewing this hearing. You left school aged about 16 and you ultimately completed a carpentry apprenticeship. You have worked in the carpentry or building game for many years now. At one point you had your own business doing smaller type jobs. I was told that you ramped up your work some four years ago and got involved in larger projects and maybe it really was not part of your background to be at the helm of such a large and growing business. The written submissions set out some of the financial issues you had as well as the vehicles that you owned at the relevant time frame. There was an amendment in relation to the first named VW. You own a house in Lancefield but had sizeable help from your grandfather in purchasing that in 2016. There is a pretty convoluted financial history spelt out in paragraphs [32] to [38] of the written submissions and I see no need to restate that detail.
38 You seemed to have been running a successful business whatever may be said of COVID-19. In the tax year ending 30 June 2020, you or your company (and I was told it amounted to the same thing) had a gross income of over $640,000. The projected figures for the last tax year suggest a higher gross income than the year before. I interpose I am not satisfied on the balance of probabilities that your decision to commit these dishonesty offences had anything to do with COVID-19. I really do not know why Mr Cummins acts on your account at paragraph 36. He really should not. It is nonsense. You were buying the Silverado by way of the chattel mortgage in late 2019. That is pre-COVID. You were moving it on dishonestly in January 2020. That was pre-COVID. You were swapping it for another vehicle in any event. How getting that other vehicle was consistent with financial need is a complete mystery. Your counsel suggested - and this was based on your instructions, there is nothing else before me in relation to this - that it was to obtain that vehicle to then on-sell yourself. Who knows where the truth lies in that claim? I am just not prepared to act on anything that is based purely on your instructions. You just cannot be relied upon to tell the truth. Virtually everything you have said whether to the police or Mr Cummins is questionable when recourse is had to the objective facts available to me. By the way, it would hardly be mitigatory that you were prepared to defraud Mr Roche by sending the Silverado out west to get your hands on his Camaro to then on-sell. But I do not accept that in any event.
39 How your entering into the Silverado chattel mortgage in December 2019 is consistent with financial need is likewise just a complete mystery. So too your claim as to being surprised by the amount owed. It was on the document you signed. So too the second attempt at the chattel mortgage of the 2018 Camaro. Not that there are any charges pertaining to that but your preparedness to source such a vehicle, to assume a monthly debt of an additional $1500 per calendar month for yet another car is not in any way consistent with dire financial circumstances or cash flow issues or the need to clear debts or to provide for any other.
40 You have a two and a half-year-old son from a previous relationship with Ms Penn. There is a good reference from the mother.
41 You have a limited prior criminal history. It is not irrelevant but it does not greatly inform my task given the age of the dishonesty matter. You have breached a past community corrections order and it would seem also a suspended sentence.
42 I turn then to consider the other matters raised by your counsel.
Guilty plea
43 The first of those matters is your early guilty plea. It was entered at what I will treat as the earliest stage and as a result there have been considerable savings. By pleading guilty you have taken early responsibility for your offending.
44 As a result, the time, the cost and the effort of a committal hearing or trial has been avoided. Witnesses, such as for instance David Williams, have not been required to give evidence. These are all matters of real significance. I have to take them in to account. You must be rewarded for your early guilty plea.
45 You have facilitated the course of justice. Your guilty plea is worthy of extra weight for the many reasons set out in the decision of Worboyes.[1] There is, as you may or may not be aware, a mountainous backlog of cases waiting for a hearing in this court. Well, this case is not one of them and that is as a result of your early guilty plea.
[1]Worboyes v The Queen [2021] VSCA 169
46 It is true that you made some admissions to the police and I do take that into account in your favour, but as I said earlier, it is not the strongest point in your favour given the answers you gave to the police. Your own counsel was not suggesting that your interview with police was demonstrative of any remorse and he accepted the serious issues with your deficient account to police.
47 I take these various matters into account in mitigation. The guilty plea and one entered in the course of a global pandemic is a matter of real significance.
Remorse
48 Your counsel very specifically submitted that he was not relying on the existence of any remorse here. He recognised some of the problematic issues in the account you had given to the police and to Mr Cummins. In so far as other people referred to remorse such as Ms Penn or Ms Naumovic or even Mr Cummins and there is also reference in the CCO assessment reports for that matter, Mr McDonald was not relying on those references to remorse. What he urged me to do is to not find as a positive feature the complete absence of any remorse. There is a fine distinction but in fact what he was asking me to do was to make no finding of remorse on a mitigatory basis. So, not to be satisfied on the balance of probabilities of the existence of remorse. I will act on that submission. I am not satisfied on the balance of probabilities of remorse in this case but I will at least imply some very limited remorse from the fact of the early guilty plea. I take that into account in your favour.
Rehabilitation
49 I turn now to your prospects of rehabilitation. Well, you have had ample opportunity to reflect on your criminality but regrettably you still seem to minimise or rationalise it to a degree notwithstanding the fact that you have pleaded guilty. You have had a good employment history. You have pleaded guilty at the earliest stage. You have only a relatively minor and pretty ancient criminal history dating back many, many years.
50 This was however not spontaneous offending. It was premeditated and not without some level of sophistication. It was not some line ball conduct just falling on the side of dishonesty. It was highly dishonest conduct and as I have said, the chronology is quite telling. Having miraculously escaped police scrutiny when the first dishonest transaction was uncovered, your response was to simply go in to bat again. Your explanations for the offending make very little sense to me. I do not accept them at all. Not COVID. Not financial need. Not maintaining the jobs for your subcontractors. Not because you had only pretty rudimentary education or had bitten off more than you could chew, business-wise. Not because you were owed money. None of these things actually explain this offending. It would actually be far easier making favourable judgments as to your future prospects if I saw signs of great remorse or contrition here. I do not.
51 Instead, what I see is justification after justification and misrepresentation after misrepresentation of the true events in the police interview. Now, that interview was of course some time ago. More worryingly though, far more recently in the conference held with Mr Cummins there is still some justification and even to some extent in the course of the plea. It raises a serious question mark in my mind as to your response to the offending. You really seem to be able to convince yourself of almost anything.
52 I would hope that the fact of apprehension, police interview, being charged and brought before the court will serve to deter you to a degree in the future. So too the sentence which I will soon pronounce.
53 I have not really mentioned Mr Cummins report in any great detail nor do I intend to. It is not relied upon as in any way enlivening any of the principles from the case of Verdins[2]. It has become very common for unsatisfactory reports such as this one to be placed before the court. This is yet another example of a report with very little rigour in its preparation. That much was conceded by your own counsel. Mr Cummins just acts on your account and he should not. Your account is demonstrably inaccurate.
[2]R v Verdins [2007] VSCA 102; 16 VR 240
54 The commencement of this dishonest offending, as I have said, had nothing to do with COVID-19. Nothing. He speaks of financial need but does not even consider or grapple with the timing of the transactions or the fact of a swap vehicle, or the very making of the December 2019 credit application or the desire on the second transaction to swap for a wake boat or a bobcat or even the second application for a chattel mortgage relating to a 2018 Camaro made in February 2020. This report is of very little use to me at least in assessing your motivation for offending and your rehabilitative prospects. Nor do I accept his conclusions as to remorse. He just takes you at your word. Well, I cannot and he should not have.
55 However, having considered all of the materials, I am prepared to find that you do have relatively good prospects of rehabilitation.
COVID-19
56 I accept the brief submission that was elicited by me from your counsel as to the impact of COVID-19 restrictions in the event that I was to send you to prison.
57 It is clear that the COVID-19 virus and the response to it by those who run the prisons would increase your burden of imprisonment. Prison is a more stressful environment. Social distancing is not easy. No doubt there would be worry about catching the virus in such a setting where, unlike someone in the community, there is really no level of autonomy. You are not vaccinated and heaven knows why. Your counsel said he did not know what you were waiting for. Nor do I.
58 Well, you have not been in prison to this point so there is little point in my dwelling on what has occurred in the past by way of limitations upon prisoners. They have not applied to you.
59 What lies ahead in the future is really impossible for me to determine. I am not free to guess about them. I cannot speculate for instance about how long restrictions on prisoner visits would persist. We are starting to open up in the community owing to the increased vaccination rate. Prisons seem to have lagged a bit behind the community in terms of lifting restrictions. Presumably the restrictions in a prison setting will lift in due course. I cannot say when that would occur. Those whose job it is to run the prisons will be able to reflect on the impact of any ongoing limitations on any individual case. So should you be sent to prison, the authorities would have the power to address any increased burden in your case by way of conferring emergency management days upon you. I cannot know if that would take place or not.
60 But I do take into account that it seems likely that these current restrictions that exist in this State will continue into the future at least in the short term. That would produce some worry and uncertainty and also of course would lead to the inability to have in-person visits. I take into account the increased burden posed by the response to COVID-19 in the event you were to be imprisoned.
The Offences
61 I must pay regard to the nature and gravity of the offences before the court. As I have said, this was serious offending. There was significant premeditation. It was flagrantly dishonest. You were altering documents to misrepresent the position as to the payout figures. It was between dates conduct so not just some out of character momentary aberration. That is not the nature of this criminality at all. You had many occasions to reflect on what you were doing and how wrong and criminal it was. I am not satisfied on the balance of probabilities that it was actually driven by any need. As to what you hoped to achieve, well you hoped to obtain the Camaro and the balance of cash and you did. You hoped to obtain the $115,000 in relation to the Silverado on the later transaction with Mr Williams and you did. How could you hope to get away with it? You were using your own name and details and bank account and even picked up Mr Williams and took him to your home. Would not all roads lead back to you? Well, they would and you did not much care.
62 As you told Mr Cummins, you hoped you could as you put it ‘settle the situation’ (see paragraph [29] of his report). Well, they led back to you after the first suite of fraudulent offending and you somehow - I do not know how - talked your way out of any police report. I do not know how and it does not matter how you averted scrutiny of that first dishonest transaction. You did. But that is the backdrop to the second set of offences. It is quite incredible that you would commit those offences when you had had such a close shave. But you did.
63 It is plain that you must have thought you could talk your way out or dance your way around or pay your way out once the truth was discovered by Mr Williams. We can see that you tried to do that in your dealings with Mr Williams and then in your discussions with the police.
64You have repaid the lot. Well, that is not entirely accurate of course. When I say you, Ms Naumovic has lent you that sizable amount of money. But I do note that ultimately all the losses have been made good and I take that into account.
65This was serious criminal conduct and I do not accept for one moment that you had any illusions about that at all. It was serious, calculated, dishonest criminal conduct and with that very unhelpful chronology of your choosing to offend against Mr Williams after just about falling though the ice in the Roche affair. It was incredible that you took that decision but you did.
Purposes
66I have to consider a number of purposes of sentencing. Rehabilitation is one such purpose and I do not ignore it. I have already pronounced my views as to those relatively positive prospects. However, they are not the only thing I must consider. There are many other sentencing purposes and given the seriousness of your offending, some of these must be given real weight in this case.
67I am required to punish you justly and proportionately. Well, that is an important sentencing purpose in this case.
68I must also denounce your conduct. That is also important. You have behaved with a high level of dishonesty. You should recognise that and be ashamed though regrettably I see no great signs of that at all actually.
69Community protection is also of some importance here and that is so despite the absence of any sizeable criminal history.
70Deterrence is also important in this sort of case. There is the need for this court to seek to deter you as well as others from offending in the future.
71Specific deterrence relates to the need to deter you. It is important given the dimensions of the fraud, the acts you took and the chronology of the offending here as well as the complete absence of any real mitigatory explanation. Also, owing to the extent of your minimisation. There is no reduced culpability in this case. I must deter you and that is important.
72General deterrence is also of real importance. That is the need to deter others. Well, there are many who use online sales platforms and many are brought into contact with people such as you who are prepared to use or access these platforms to link into unsuspecting purchasers who then are defrauded. There is a strong need to send a message to those others who might consider doing what you did. They must be deterred. That is an important purpose of sentencing in this sort of case.
73I have to pay regard to the maximum penalty for each offence. It is 10 years in each instance here.
74I have to pay regard to current sentencing practices. They are not a single controlling factor though.
75I have looked at the Sentencing Advisory Council Snapshots to which I have been referred by Mr McDonald. They are not much use if any at all. These sorts of offences that I am dealing with, they cover a multitude of different settings and acts and amounts. The statistics provide none of the essential detail. For instance, as I have said, a significant aspect of this case was your preparedness to commence the Williams fraud after such a close shave where your dishonesty in the Roche transaction came to light.
76I am exercising a sentencing discretion in your case. That is not a statistical exercise. Statistics have inherent limitations. I have looked at examples of sentences imposed for these crimes as set out in the Judicial College of Victoria sentencing guide but again that exercise has real limitations. One can never find a case on all fours. All cases are different, so too every offender. I am sentencing you for your crimes and that is not some mathematical task or one where the outcome is dictated by what has happened to other offenders in other cases for other crimes.
77Here, I have the between dates nature of some of the charges as well as the rolled up status in two cases. This was not some isolated conduct.
78It is true that the loss has been made good and that is of real significance. It will not actually matter to Mr Williams who has funded that outcome. Ms Naumovic has repaid the amount on your behalf. But, at least Mr Williams is not waiting in the wings interminably for you to pay a restitution order.
79At least here the various victims are not out of pocket.
80I do take into account all of the submissions made by your counsel and those made by the prosecutor.
Totality
81I also take into account the principle of totality of sentence.
82I must consider whether the effect of the sentences is just and appropriate and commensurate with your overall criminality. Your overall criminality here was high. There are a number of separate crimes with separate elements and committed at separate times. There are of course separate victims. There is the relationship between the two paired charges of course.
83I have engaged in a last look at the sentences imposed by this court and the total effect of them in endeavouring to guard against the imposition of a crushing term upon you.
84Prison is always a disposition of last resort. Your counsel argued that it would be open to place you onto a standalone community corrections order. That is, that you did not need to spend a single day in prison. Mr Davison, on behalf of the Director of Public Prosecutions of this State, did not challenge the availability of that outcome. As I have said though, I am exercising my sentencing discretion. Whilst I will not ignore any submission made to me by either counsel, I am not bound by sentencing submissions made by either side.
85I have had you assessed for a CCO but warned you not to presume that such an outcome was assured just because I was having you assessed. I told you that I was considering all options including a combination type order or even a head sentence with a non-parole period. You were warned that you should not take it as a given that I would place you onto a community corrections order if you were judged to be suitable. I meant what I said. I have received the two reports, one in relation to your suitability for a community corrections order, the other relating to your mental health.
86You are judged to be suitable for a community corrections order. I am not surprised by that conclusion. You have what they describe as a low risk of reoffence. Your being judged as suitable is not the end of my task. Can such an order on its own achieve the various purposes of sentencing? If it can, then I would be obliged not to go further up the hierarchy of sentences. Prison is after all genuinely a disposition of last resort. A court must never impose a more onerous or serious sentence than is actually required to achieve the purposes of sentencing. That is the law. I have considered this matter in the time which has elapsed since the plea was conducted a couple of days ago. I have reread all the materials including the various submissions made by each of the parties. As you may have gleaned, I had some very serious doubts as I heard the plea the other day as to whether you could avoid a term of imprisonment here.
87Having considered all of the matters afresh, and I tell you, by the finest of margins, I believe that it is open to me to release you onto a community corrections order. So that is what I will do if you consent. You need to listen very carefully. I am really not sure that you understand how close you have come to sailing off to prison today, but you need to understand, for that day will most certainly come if you are foolish enough to breach this order that I am shortly to pronounce. I must explain the order to you and the reason I must do that is I need to obtain your informed consent. I do not want someone consenting to such an order and coming back upon a breach application saying, 'I did not know what could happen to me.' You will know and that is because I am telling you right now.
88So you better tune in very carefully as I explain the order I propose because once I have explained it I am going to ask you if you consent. If you do, I will place you on the order. If you do not, then I will send you to prison.
89I am convicting you. I take it, Mr McDonald, I mean you said he essentially is the company. I am assuming he is a director, is he?
90MR McDONALD: I am sorry. Say that again, Your Honour.
91HIS HONOUR: He is a director of the company is he?
92MR McDONALD: Yes, he is.
93HIS HONOUR: Yes, all right. Well, there will be some ramifications, will there not, in terms of his directorship? Yes, all right.
94I am convicting you. You will leave this court today with serious dishonesty convictions. Presumably, they will have impact upon your ability to be a company director and bear in mind, failing to disclose these matters in any future application for credit would most likely constitute fresh fraudulent conduct.
Sentence
95I am going to convict you in relation to each one of these charges. On all of them, I am going to admit you to a community corrections order. It is going to run for a period of three years. Now, you have had one of these orders before and you mucked it up by the looks of it. You were taken back to court for breach. So maybe you did not listen too carefully but you were much younger back in 2008.
Mandatory terms
96Let me explain the mandatory terms of this community corrections order. Every person who gets an order such as this has to comply with the mandatory terms. They are mandatory. They apply to anyone who gets one.
97Well, what you are going to need to do is you will need to attend at the Bendigo Community Corrections Services within two clear working days. There is a phone number on that order. I am not quite sure what the state of play is. I will have a look at the report I think. But you will probably need to ring first I imagine. I will look more carefully. I think it is. You will need to ring that number first and get further instructions. Do it within two clear working days. Do it today would be my advice.
98So that is the starting point. No doubt then they will arrange to see you and to induct you onto the order. But the mandatory terms are these. The first is a pretty obvious one. You must not commit another offence for which you could be imprisoned during the time the order is in force. That is the next three years. You commit any offence that in theory could be punished by a term of imprisonment, you breach the order. Just to explain it further, if you were to commit any sort of fraud offence, any sort of theft offence you would be breaching the order. There are some driving offences that carry with it a term of imprisonment. If it was driving unlicensed or drive whilst disqualified, punishable by imprisonment, you have breached the order.
99So any offence punishably by imprisonment and virtually every offence these days carries with it at least the theoretical possibility of a term of imprisonment. You commit any offence that could in theory be punished by a term of imprisonment, you have breached this order. I will further explain it.
100Just suppose and I am not saying it is going to happen, if you went into a milk bar and stole a 30-cent Freddo Frog, I do not think there is any Magistrate in their right mind who would send someone to prison for that. But a charge of theft of even a minor object like that is punishable by a 10-year term of imprisonment, you have breached the order, all right? So you stay out of trouble. Pretty straightforward.
101You must report to and receive visits from the community corrections officer as directed. As I have said, you have got to report to them within two clear working days of this order starting. You have got to let them know within two clear working days of any change of address or job. You must not leave Victoria without first getting permission to do so from the Secretary. And you must obey all their lawful instructions.
102So they are the mandatory terms. They apply to anyone who gets one of these orders. They will apply to you. You commit any offence punishable by imprisonment in the next three years, you breach the order. You need to turn up when you are told to turn up. You need to do what you are told to do when you turn up. It is amazing how many people breach these orders by not complying. They are happy to get them because the alternative is not too attractive The alternative is prison really.
103So there is a sense of relief. You will probably have a sense of relief that I am not sending you to prison today. Well, do not lose touch with that sense of relief because if you breach this order and wind up sitting back in the dock of the court, you would place yourself in a position where you will almost certainly be locked up. People are relieved to get the orders. You will be relieved to get it. But then they get out into the real world, out into the community and they realise actually this order is not that easy. It is not. It is not designed to be. I mean I am punishing you. I will tell you more about the punishment in a moment in terms of the unpaid work. But the order itself is a form of punishment as well. So no silly excuses, no playing games with Community Corrections, no prioritising your paid work over your unpaid work. You prioritise this order. If you do not, we will meet again. So they are the mandatory terms.
104Now, if you are complying with the order and doing everything under the order and you have got everything under control and the unpaid work has been whittled away nicely and there is good reason for you to want to head interstate, maybe they will let you. Maybe you can make application to go on holiday or something like that and maybe they will let you go. I mean, no one can get out of the State at the moment but that will change. But you do not just get up and leave. You get up and leave, you breach the order. Leave your residential address without telling them where you are going or your job, you breach the order. So the main thing is just communicate. Form a relationship with the corrections officer and that is the best way of actually complying with these orders. So they are the mandatory terms that I have explained.
Tailored conditions
105There are also tailored conditions. One of these is unmistakably punitive. That is unpaid work. This is an order that runs for three years and I am requiring you to perform 400 hours of unpaid work and it is over a two-year period. I think I will say over the first two years. The order is a bit opaque but it says you must perform 400 hours of unpaid community work over a period of two years as directed by the regional manager. I have inserted into the order that that 400 hours will be done in the first two years of this order. So the order will run for three years from today. In the first two years, you have got that obligation to do 400 hours of unpaid work.
106There will be a mental health condition. You must undergo any mental health assessment and treatment. That includes all sorts of things that are set out in the document. But essentially, you undergo any mental health assessment and treatment as directed by the regional manager. They will probably tell you to get a mental health plan and require proof of that.
107I am going to fix a condition that is not mentioned in the report. I am going to fix a judicial monitoring condition in this case. I am going to monitor you. So like it or not, you are going to see me again and you are going to see me again for the first time in February of next year, 4 February at 9.30 am.
108So they are the full suite then of tailored conditions. It is amazing how people, as I say, they are happy to get the order. They are relieved not to be going to prison but then the reality sets in when they are spending large amounts of their time, having to do unpaid work. The attraction of the order wears out pretty quickly and people stop turning up for work. They dream up excuse after excuse. Well, Corrections have heard them all and so have I. You play games with Corrections, you will breach this order. As I say, the best way of complying is to actually genuinely try on this order. Form a relationship, a decent relationship with your Corrections officer and communicate with them. If there is some particular obligation under the order that is difficult, if there is something that is going to be a clash, well, raise it in advance. No doubt they will reschedule if it should be rescheduled or not as the case may be. But if you do what so many people do - that is just not turn up, not turn up for unpaid work, not turn up under the mental health condition - you will be breach this order.
109So what I suggest you do is be what you have not been throughout this whole sorry episode - honest and frank with the community corrections officer.
Ramifications of breach
110I do have a sense you can rationalise almost anything in your own mind. I know that you can look someone in the eye as you did to Mr Williams and just lie through your teeth to a person.
111You must think that you are a persuasive person to be able to commit these crimes and then think that you might talk or walk or dance your way around them. Maybe you are even sitting down there, thinking that you have for I am not sending you to prison. But this case is not over. Not by a long shot. It will be over in about three years if, if you comply with the order in that period. As I have said, I am monitoring you. You will know you are coming back before me and I can see how you are travelling on the order. One of the reasons I am doing that is to look at your efforts, but not just your efforts, but Corrections' response to your efforts.
112I do not want to see a situation where Corrections hang back from breaching you and let you rack up absence after absence on the order and then bring you back for breach in two years from now with a very long list of stale historical failures on this order. I am monitoring you so I will have a report in my hands from them to me, telling me about your progress on the order. That will permit me to tell them at the first sign of non-compliance to just breach you. And that is what I will do. I have contemplated putting a condition on the order that at the first non-compliance under this order that the matter should be brought back for breach. I will not do that. But I am seeing you on 4 February of next year. Muck around on this order all you like because I will be seeing you then. If there is a sign of any breach, I will be telling them to bring you back for breach proceedings.
113What I have not told you about is the ramifications of breach proceedings and your counsel can go over this once I have left the Bench and once you have left the dock as you will. But firstly, breaching a community corrections order is itself a criminal offence. It is punishable by I think three months' imprisonment. That is not the sting. The sting is this: If a person is found guilty of breaching an order such as this, the court then has to do one of a handful of things. There are only a very small range of things that can be done by a court and I can tell you that the most commonly exercised power is to cancel the order and then to resentence. So it is a resentencing exercise where you would then fall to be sentenced for these very same crimes. Well, of course, I would listen to anything said on the plea, as I have in the course of the plea conducted before me in this case.
114I would have to take into account the extent of compliance of the order. I would have to make judgments as to the appropriate course to adopt under the provisions of the Sentencing Act. But as I say, the most commonly exercised power is to cancel the order and to then resentence. Work on the theory that if you breach this order, I will be sending you to prison andnot for months. Work on the theory it will be a head sentence with a non-parole period being fixed. I do not want you to be under any illusions about that.
115I have heard every excuse under the sun. Do not think you will pull the wool over my eyes. If you breach this order, do not think that you can come back and say to me through your counsel, 'Look, I'll have my second chance now'. This is your chance. It is your only chance. Do not think there is a second chance waiting in the wings. There is not. Breach it and I will almost certainly send you to prison for a long time, as some may perhaps think I should have done today.
116Now, let me just satisfy myself that I have adequately explained the order to you. Let me have a look at that. Mr McDonald, you can go down and have a chat to your client if you would and just satisfy yourself that he understands. I will just sign this and you can take it down as well. So you can - - -
117MR McDONALD: Thank you, Your Honour. I was going to say to Your Honour, picking upon your queries before about the two-year condition.
118HIS HONOUR: Yes.
119MR McDONALD: I do not think that it is mandatory but s39 in the Act allows for a court to seek an intensive compliance period where it can set one or more conditions must be completed within that period.
120HIS HONOUR: I see. All right.
121MR McDONALD: And it seems to me if Your Honour chose to do so and say, specify two years as the intensive compliance period for the work component, it would make the effect of Your Honour's order unambiguous.
122HIS HONOUR: I would have said it is not ambiguous. I think the system gives that vague wording. What I have done is by way of the other order, I have said I have directed that 400 hours of community work be completed in the first two years of this order. So - - -
123MR McDONALD: That would seem to achieve the same purpose, Your Honour. As I say, I do not think it seems to be necessary to descend into detail that can be found in the statutory provision.
124HIS HONOUR: Yes. All right, let me just look at that.
125MR McDONALD: I certainly do not seek to quibble with anything Your Honour says. I just thought I would bring that to Your Honour's attention if it was of assistance.
126HIS HONOUR: No, no. See if he is consenting. If he is, I will get him to sign. If you can take that down, have a brief chat to him please.
127MR McDONALD: Thank you, Your Honour. May I approach the dock, sir?
128HIS HONOUR: Yes.
129MR McDONALD: Thank you.
130HIS HONOUR: Yes.
131MR McDONALD: Thank you, Your Honour. Mr Baker has signed that order and he instructs me that he is prepared to consent to that.
132HIS HONOUR: All right. Thank you. I will enquire directly of him. And Mr Baker, stand up if you would please. Do you then consent to enter this community corrections order?
133OFFENDER: Yes, Your Honour.
134HIS HONOUR: You just need to talk up please.
135OFFENDER: Yes, Your Honour.
136HIS HONOUR: And you have signed the order signifying that you understand the terms of it and you consent to entry into this order, is that so?
137OFFENDER: Yes, Your Honour.
138HIS HONOUR: Have a seat then.
Section 6AAA
139I have taken into account his guilty plea. If you had pleaded not guilty and been found guilty of these offences, I would have sentenced you to three and a half years' imprisonment. I would have fixed a non-parole period of two years. That is to be entered into the records of the court.
Forfeiture of phone
140Finally, there is the disposal order in relation to the phone. What was the position on that then, Mr McDonald, is it - - -
141MR McDONALD: I think I was going to leave it in Your Honour's hands but it seemed the indication was we would be able to get a copy of the material from it and my instructions are we are more than content with that.
142HIS HONOUR: Well, that would be a matter between you and the Crown and the police I suppose. But I will in the circumstances, I will make the order and as to what happens with it beyond that, it is between the two of you I suppose.
143MR McDONALD: Thank you, Your Honour.
144HIS HONOUR: I am satisfied it is appropriate to make the disposal order. I do not think there is any meaningful objection taken to it. It is more concern about what was on it and what could be copied from it. There has been a significant period where that could have been arranged in any event but as I understand it, there is potentially some ability for a copy of it to be provided. In any event, that is between the parties and is not germane to my task.
145The basis for the making of the order is made out here and I order pursuant to s78 of the Confiscations Act the forfeiture to the State of the property referred to in the schedule. I direct it be placed in the custody of the Chief Commissioner of Police and be held and dealt with by him in the manner contemplated by the order which I have signed. Let me just see. Are there any other matters I need to deal with firstly from your perspective, Mr Davison?
146MR DAVISON: No, Your Honour. As Your Honour pleases.
147HIS HONOUR: All right. Any other matters from you, Mr McDonald?
148MR McDONALD: No, thank you, Your Honour.
149HIS HONOUR: All right. Well, I have explained the order as best I can and I think you have a sense Mr McDonald as to why I am monitoring this order and as I say, I will be seeing him in February of next year. I will be calling for a report and you explain to him the ramifications - I have done it. I have explained the ramifications of breaching an order such as this. Just explain to him and reinforce the limited options open to a court in the event he breaches.
150MR McDONALD: I will, Your Honour.
151HIS HONOUR: It is his choice. I mean he ought to leave court and ought to comply with this order and never look back. But if he chooses to breach it, I am not going anywhere. I will be here and I will be waiting for him. I do not want to see him again other than in monitoring. I would much rather he complied with the order and that when I next see him and when I see him beyond that date he is doing well on the order and complying in every shape or form. But if he is not, he better prepare for prison. I will just sign the CLMS entry then. Just bear with me.
152MR McDONALD: As Your Honour pleases.
153HIS HONOUR: I have signed that order. So that completes the matter. I adjourn the court to - your client can come out of the dock in a moment once I have left the Bench. But I will adjourn the court then to - and he will get copies of the document obviously. So too will the prosecutor. But I adjourn the court then to 9.30 on Monday then please.
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