Director of Public Prosecutions v Burnley
[2015] VCC 1988
•4 August 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-00702
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| PETER BURNLEY |
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JUDGE: | His Honour Judge Gucciardo | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 4 August 2015 | |
CASE MAY BE CITED AS: | DPP v Burnley | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1988 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr B. Nibbs | |
| of Public Prosecutions | ||
| For the Accused | Mr A. Isaacs |
HIS HONOUR:
1 Peter Burnley you have pleaded guilty to one charge of attempting to obtain a financial advantage by deception and three charges of obtaining financial advantage by deception. Prosecution tendered a comprehensive summary of the prosecution case upon your plea and that document was tendered and will be retained on the court file.
2 For purposes of this plea it suffices to say that on 21 February 2014 you made an application to Westpac Bank on behalf of a person for a loan of $720,000 and provided certain documents to the bank which, to your knowledge, were fraudulent. Some of these documents included letters purporting to be from accountants, pay slips, letters of employment, tax returns and bank statements. A loan application was assessed and further information requested. This information obtained by you through others was also false. The Westpac subsequently declined the loan and this was the basis for Charge 1.
3 Charge 2 related to an application which you made on behalf of another person, Pavlovsky, to La Trobe Financial Services. You acted as a self-employed finance broker and acted as the middle man, communicating requests and forwarding the replies such as fraudulent accountants' letters signed by one Zahir. You then fully requested Pavlovsky to complete a fictitious residential tenancy agreement for the purported rental income related to a false rental of a property for provision to La Trobe by you. You also obtained a false accountant's letter from Pavlovsky.
4 In May 2014 you drafted fictitious statutory declarations for purposes of this application. La Trobe ultimately assessed the application in May 2014 and approved the $720,000 loan. The funds were used to discharge a mortgage.
5 In relation to Charge 3, in March 2014, you were contacted to arrange a refinancing deal for which you requested documents. The documents provided were fraudulent, this loan was to be for the benefit of one Giordano referred by Pavlovsky to you. Pavlovsky in due course provided you with a number or fraudulent documents such as a rental lease; an arrears policy form and tenancy agreement. Upon receiving those, you submitted a loan application for two loans to Westpac totalling $1.1 m. The loan authority issued from Westpac and was funded. A false letter of employment for Giordano's wife and false rental income deceived Westpac. A cheque for $550,000 was issued out of the loan funds and was deposited to an NAB account controlled by Pavlovsky. The balance of funds of this account were dispersed in February 2015, but the details rather surprisingly are not known.
6 Charge 4 related to a home refinance arranged through you by Zahir for the Belmudas, a couple who were engaged in litigation and required funds. The matter was referred by Pavlovsky.
7 You received an email in April 2014 from Zahir for the fraudulent letter of employment signed by Pavlovsky. You requested that the declared income being earned by the applicant would not be sufficient to obtain the loan and you sought an amended letter from Pavlovsky. An amended fraudulent letter regarding the applicant's income was provided. You then forwarded a number of documents from which Westpac approved the loan for $584,000. The funds were not drawn and soon thereafter police were alerted to issues in the documentation concerning both the Giordano and Belmuda applications.
8 In June 2013 police executed a search warrant; this was at the offices of Zahir and Giordano, and certain false documents were found relating to the Belmuda loan. A number of people were arrested between June and October 2014 and again in February and March 2015. On 10 March 2015 you attended at the fraud and extortion squad office where you were interviewed and you made full admissions. Thereafter you provided further statements to the police about your involvement in these transactions, and the involvement of others.
9 The maximum penalty for obtaining financial advantage by deception is 20 years; its attempt carries 10 years imprisonment. These maxima apply to continue criminal enterprise offences and because of the nature of those offences being styled, continuing criminal enterprise.
10 By these periods the law indicates the seriousness of this offending. When committed in the context of high finance banking, loans and documents and applications, these offences strike at the heart of commerce which keeps society working, our financial institutions safe from dishonest degradations, and undermine the trust and ethical framework which lies at the foundation of financial arrangements in the community.
11 Given this gravity the features of the offending are relevant, particularly, its ongoing nature by way of the time involved in this continuing criminal enterprise; the level of sophistication and subterfuge involved in the creation of false documents; swearing of false statutory declarations; and the amounts involved which are not insubstantial.
12 The application of the continuing criminal enterprise penalties reflect the intention of the legislators to deter those who demonstrate a preparedness to engage in repeated predatory behaviour, effecting the putting in effect the commission of offences of the kind to which you pleaded guilty, which affect the economic welfare of individual victims and the general community.
13 General deterrence, denunciation and punishment must be primary considerations in your sentence. I must consider also of course other sentencing principals: the first matter is your plea of guilty which was entered at the earliest opportunity, that will attract a discount in your sentence. I accept that the plea is a facilitation of the course of justice and an acceptance of responsibility. There is here evidence of remorse in my view which was expressed to police during your interview and which is further evidenced by you undertaking to give evidence in accordance with statements you have made in cooperation with the authorities in the forthcoming proceedings against other accused. This is a matter rightly of some weight requiring further amelioration of the sentence given the public policy required to encourage such assistance.
14 You have no prior criminal record and have had no involvement in the criminal justice system. You are 43 years of age and you are a person of otherwise good character as evidenced on the material and through the evidence which was given on your behalf upon your plea which I take into account. I take these pieces of evidence into account in assessing not only the appropriate disposition but in the assessment of your prospects of rehabilitation.
15 I take into account your personal circumstances: you are the youngest of six children, you completed your VCE and at age 19 you competed in Australian championships in swimming and life-saving, representing Victorian swimming. You represented Australia in life-saving championships and Coastal Victorian Life Saving team from 1996 to the year 2000. You attended Victoria University, having already completed two years of a primary teaching degree for a Bachelor of Business. In 1995 and 1996 you completed a Diploma of Finance and you further studied at the Securities Institute between '97 and '98. In 1997 you commenced your own mortgage broking business, you worked for 18 years in the finance industry without blemish. On being charged with these offences you voluntarily handed in your licence and so your career in the finance industry has ended. I take this matter into account as extra-curial punishment. In 2007 you married your first wife who in 2014 had been diagnosed with cervical cancer and was severely depressed. In 2007 you also adopted a child, now eight years of age. You separated in 2010. In 2012 you met your current fiancé with whom you reside, she had two children from her previous relationship and you have had one child together, making four children all up. Also in 2012 you suffered a heart attack while swimming, you underwent coronary angioplasty for an occluded coronary artery. You are currently medicated, your partner has remained supportive of you throughout these proceedings. Although you have not revealed these offences to your parents or siblings, you have a close relationship with your family. As the only sibling in Victoria, you are involved in the care of your elderly parents, particularly your father who is suffering from stomach cancer and with whom you attend all medical appointments. You have obtained employment in the life saving field, and I accept that all these positive factors men that your prospects of rehabilitation are probably very good.
16 I accept that by this offending you did not stand to make additional commission and that you only received a commission in relation to Charge 2 which you have repaid.
17 I accept that in relation to each of the four charges the loan application was secured legitimately by property and obtained the correct names, and that, in relation to Charge 2 and 3, the banks have not sustained any loss. There is no evidence repayments are not being met.
18 I accept that you are not the initiator of any fraudulent documentation, and that the deception was begun by others. It is also true that you facilitated this activity and that you chose to participate in the conduct giving rise to the offences. Your motivation may have been to ingratiate yourself with other participants and to facilitate an ongoing business relationship, however, once you became suspicious, you were not then capable of disengaging from the conduct and willingly participated in it for others who would have been a new source of referrals.
19 A report was received from Pamela Matthews, a forensic psychologist, having outlined your background. Ms Matthews administered a number of tests which highlighted your situational anxiety and depression. She opined that the aspect of the offending which reflected a feeling of harassment or intimidation or fear was born out of your personality testing which would have triggered your concerns for self-preservation to some extent. She recommends a number of interventions for which you would benefit.
20 I should note that I was referred to a number of authorities in relation to the issue of the penalty attaching to continuing criminal enterprise which here applies to all charges. I note the comments in Arundell and in Grossi in relation to maximum penalty increase, not necessarily meaning that an increase or disproportionate sentence should be imposed, and the prosecution, I note, sought no such sentence.
21 I had you assessed by the Corrections Victoria; have received an assessment report. The correctional services have assessed you as being of low risk of reoffending and able to be supervised by the Frankston Community Services. In my view, your offer and undertaking to the court must be given significant credit, as well as your plea. The prosecution indicated that your evidence is clearly valuable to future proceedings in which you will be a key witness. The prosecution agreed that you as a medium range offence a Community Corrections Order was appropriate and I agree with that fair estimation. I am of the view that the matters outlined in totality means that a Community Corrections Order is suitable as an appropriate disposition in this matter given particularly recent Court of Appeal authorities. I have also considered that the sentencing principles applicable here are not exclusively and only met adequately by a sentence of imprisonment, but are sufficiently met by a Community Corrections disposition. Please stand.
22 Mr Burnley on Charges 1 to 4 on the presentment you are convicted and released on a Community Corrections Order for two years. You will undertake 300 hours of community work. You will be supervised and undergo assessment and treatment and rehabilitation in relation to mental health. I make no further order.
23 In relation to the circumstances pertaining to this matter I exercise my discretion to not make an order in relation to 464ZF, an order which in my view under the circumstances is unnecessary. Are there any other ancillary orders?
24 MR NIBBS: No thank you Your Honour.
25 MR ISAACS: May it please, Your Honour.
26 HIS HONOUR: Thank you, Mr Isaacs. Mr Burnley, you can step out of the dock and sit behind Mr Isaacs, you'll have to sign a document. Mr Nibbs?
27 MR NIBBS: Your Honour, just in relation to s.6(j) of the Sentencing Act, you need to record on the criminal record the continuing criminal enterprise offender provision.
28 HIS HONOUR: Yes. I will note that in relation to each of the charges I have sentenced Mr Burnley as a continuing criminal enterprise offender. I also note that the legislation requires that a note on the orders of the court - his assistance undertaken by him in this court.
29 MR NIBBS: Yes, Your Honour.
30 HIS HONOUR: Yes, I will do that.
31 (Community Corrections Order signed and acknowledged.)
32 HIS HONOUR: I should state for the record in relation to s.6AAA that but for Mr Burnley's plea I would have sentenced him to 18 months in prison.
33 MR ISAACS: May it please, Your Honour.
34 HIS HONOUR: Yes, thank you. I will just stand down. I have another matter at 10.30.
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