Director of Public Prosecutions v Brennan

[2015] VCC 1171

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-00918

DIRECTOR OF PUBLIC PROSECUTIONS

V

DANIEL BRENNAN

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	24 August 2015
DATE OF SENTENCE:	24 August 2015
CASE MAY BE CITED AS:	DPP v Brennan
MEDIUM NEUTRAL CITATION:	[2015] VCC 1171

REASONS FOR SENTENCE
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Subject:Criminal law - sentence

Catchwords: plea of guilty to one charge of making false documents and one charge of obtaining a financial advantage by deception –false documents provided to finance company for purchase of Porsche car -  deception detected promptly and car returned – no money lost by financier or vendor company - early plea of guilty – remorse – Verdins considerations due to cognitive defects as legacy of head injuries in the past, combined with depression and anxiety – one similar prior court appearance 10 years ago – good prospects for rehabilitation – CCO appropriate    

Cases Cited:Boulton V R [2014] VSCA 342 Verdins v R [2007 VSCA 102

Sentence: 3 year CCO, with treatment, supervision, and 100 hours of unpaid work. Convictions recorded.         

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms N Burnett	OPP
For the Offender	Mr I Crisp	Thexton Lawyers

HER HONOUR: 

1Daniel Nathan Brennan, you have pleaded guilty to one charge of making a false document and one charge of obtaining a financial advantage by deception.  The charges involved your attempted purchase of a Porsche motor vehicle using false documents that you created.  Immediately before the offending, you had been employed by a car dealership, Southbank Prestige, as a sales manager. 

2On 12 March 2014 whilst still employed there, you contacted BMW Australia Finance wanting to borrow $130,000 to purchase a vehicle.  A conditional finance preapproval loan was arranged by BMW Australia Finance as you had not yet located the car you wanted.  You provided documents to the finance company and you were told a cash deposit would be needed.  Meanwhile, you had been given the option by Southbank Prestige of resigning or dismissal due to a series of minor infractions, and on 12 April, you ceased working there. 

3A short time later, you informed the finance company that you had found a car to purchase for the sum of $120,000 from the Porsche Centre in Melbourne.  The finance company required updated documents including a declaration of purpose in relation to the use of the car and more recent payslips.  You then created false documents as follows: 

A signed letter on a letterhead of Southbank Prestige dated 1 May 2014 as to the use of the car for business purposes. 

A letter on Southbank Prestige letterhead stating that you had been employed there for 12 months and earned $250,000 per annum.  In fact, your salary had been $90,428 per annum.  This letter purported to be signed by Ian Porter, an administrator at Southbank Prestige, but he neither wrote nor signed it. 

Two payslips on Southbank Prestige letterhead bearing dates after you had ceased working there. 

A chattel mortgage agreement signed by you with Jai Patel as witness, in fact, Mr Patel neither witnessed nor signed the document. 

4Once these documents were provided to the finance company, the loan was approved, and funds of $113,336.45 were advanced to the Porsche Dealership on 1 May.  You took possession of a Porsche Cayenne motorcar the same day. 

5A few days later, it came to the attention of Mr Porter at Southbank Prestige that you had supplied false payslips to BMW Australia finance and the police became involved. You were arrested on 26 May and the car was repossessed. 

6You are a 36 year old single man with one prior court appearance in 2007 when you were found guilty in the Magistrates' Court of four charges of obtaining property by deception and two charges of attempting to do so.  No conviction was recorded and the case was adjourned for a year on condition you pay $1,000 to a court fund.  You had tried to sell items obtained under contract using an alias or had successfully pawned them. 

7Your personal circumstances are these, that as a schoolboy you had had no difficulties until at age 17 you suffered a head injury during a football match, spending a week in hospital.  Later that year, you were a passenger in a car involved in a serious accident resulting in the death of one of the three occupants of the car.  When you returned to school, it seems that the combination of these two incidents caused you to be unable to concentrate and you left school.  As a 20 year old, you returned to studying VCE but again could not cope with the work.  You obtained work as a car salesman and have a very solid work history, having spent several years in each of a number of car dealerships.  Indeed you are now working again in that industry. 

8In early 2014, several factors combined to place you under a great deal of stress.  Your relationship with your then partner began to deteriorate, and at around the same time, your parents separated after a long marriage, with your father, an alcoholic, coming to live with you and your partner, causing tensions.  Unfortunately, your partner became ill with cancer and had surgery.  You changed your employment from a large corporation to the smaller company, Southbank Prestige, and found the adjustment difficult.  You became depressed and anxious, and it was at this time that the offending occurred, between 28 April and 1 May 2014.  Your relationship with your partner broke down and you separated. 

9You pleaded guilty to these charges at an early stage and have demonstrated remorse, with there having been no loss to the victim and all outstanding money being repaid within seven days of detection.  I accept that you always intended to pay the debt and there is no suggestion that you would have avoided it. 

10You were assessed recently by a neuropsychologist, Dr Lindsay Vowels, who formed the opinion that you do not have an intellectual disability, but that as a result of some form of organic brain impairment, you have limited capacity in certain abilities related to analysis of a situation and being able to generate solutions.  She stated that your depressed state and anxiety interact with your cognitive difficulties resulting in poorer achievements and less acceptable behaviour. 

11Dr Vowels diagnosed a moderate and significant pattern of abnormal cognitive abilities which she said may be associated with an acquired brain injury, impacting on the frontal regions of the brain, involving both memory and executive functioning, hence her diagnosis of Amnesic Syndrome and Dysexecutive Syndrome.  She said: 

"Many of these cognitive disabilities of executive function may have contributed to Mr Brennan's alleged offending when considering the decisions he has made with no apparent recognition of the likely consequences of his actions". 

12She thought your capacity for moral reasoning is less than a matched peer who has not suffered a head injury. 

13Accordingly, that part of the sentence I impose which provides for general deterrence should be sensibly moderated to a slight degree because although you knew that what you were doing was wrong, your capacity to accurately assess the criminality of your actions was impaired.  You had never been assessed in this way before and had no awareness of your condition. 

14Dr Vowels considered that you are capable of rehabilitation but with support and assistance, and that leads me to explain the sentence that I will impose. 

15As you know, you have been assessed as suitable for a community corrections order and that is also considered appropriate by the prosecution.  Since the decision in Boulton's case, it is accepted that even in the case of some serious crimes, a community corrections order is regarded as adequate punishment in terms of general and specific deterrence depending on the circumstances. 

16I will ask you to stand now, please, and I will explain these details to you.  The order will begin today and will last for three years.  You will be under supervision and you must perform 100 hours of unpaid community work over six months.  In view of the seriousness of the charges and the fact that you have one prior court appearance for a number of similar matters, there will be convictions recorded in this case. 

17You must submit for any psychological assessment and treatment in view of Dr Vowels' recommendation for therapy in this regard.  You may also be required to take part in other programs to address your rehabilitation. 

18Strictly speaking, you have until 4 pm on 26 August, in two days' time, to report to the Corrections office at 444 Swanston Street, Carlton, but an appointment has been made for you to go there at 11 o'clock tomorrow. 

19If you had pleaded not guilty to these charges, I would have sentenced you to a five year community correction order with 180 hours of unpaid work. 

20HER HONOUR:  The Community Corrections Order has been signed now, so everything is in order.  Thank you. 

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