Director of Public Prosecutions v Caridakis
[2015] VCC 898
•26 June 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-01237
Indictment No. C13393946.1
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MICHAEL CARIDAKIS |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 26 June 2015 | |
CASE MAY BE CITED AS: | DPP v Caridakis | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 898 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D'Arcy | |
| For the Accused | Not represented by counsel |
HER HONOUR:
1 Michael Caridakis you have pleaded guilty to four charges of obtaining financial advantage by deception. Your plea of guilty was entered on 2 September 2014 on what would have been the fourth day of your trial on seven charges of obtaining financial advantage by deception. A new indictment was filed over and you pleaded guilty to four charges, which represent four of the seven charges to which you had originally pleaded not guilty. You later applied to change your plea. On 10 March 2015 I ruled that your application to change your plea was refused.
2 The maximum penalty for the offence of obtaining a financial advantage by deception is ten years' imprisonment. Each of the four charges you pleaded guilty to is a continuing criminal enterprise offence for the purposes of s.6H(1) of the Sentencing Act 1991. As you have pleaded guilty to three or more continuing enterprise offences, the maximum penalty for each of the four offences is 20 years' imprisonment.
3 The circumstances of your offending are set out in a detailed Summary of Prosecution Opening on Plea, which was tendered as Exhibit A. In brief, the offences were engaged by you at a time when you were employed by the Commonwealth Bank of Australia between 3 December 2007 and 31 December 2008 as a mobile lender. A mobile lender promotes and facilitates loans to Commonwealth Bank of Australia customers.
4 You dishonestly obtained financial advantage on four occasions from the Commonwealth Bank of Australia by deception. You did this by setting up four mortgage loan facilities in the names of fictitious persons. The loans were obtained over a period between 20 August 2008 to 11 November 2008. In each case you arranged for a Streamline account to be opened in the name of the person. A debit card linked to the account was issued and sent to each account holder. You entered false information about each person in the bank's records. You were the recommending officer for each application. No valuation was required for the property which was the subject of each loan.
5 The moneys required for the purchases of four properties was supplied by the Commonwealth Bank through the mortgage facilities. Prior to the settlement of each purchase the vendor informed the purchasers that a purchaser incentive was to be paid at settlement. Because of the purchaser incentive, the loan obtained was more than enough to pay for the purchase of the properties, plus the associate ancillary costs. The excess funds were placed in each fictitious person's Streamline account.
6 The loan in respect of Charge 1 was for $219,652. The loan in respect of Charge 2 was $251,246. The loan in respect of Charge 3 was $717,263. The loan in respect of Charge 4 was $717,263. The total amount of financial advantage obtained was $1,905,424. The excess money paid back into the streamline accounts for the fictitious persons was a total of $479,080.
7 Commonwealth Bank investigators commenced investigation in these matters in about December 2008. On 29 October 2009 police executed a search warrant at your home, arrested you and interviewed you. You were charged by police in December 2012. A contested committal hearing was held in June 2013.
8 The excess moneys in respect of the loan which was the subject of Charge 1 was withdrawn or transferred into other accounts and had a closing balance of $11.66 cents. The excess moneys deposited in respect of the loan on Charge 2 was withdrawn or transferred to persons known to you. The closing balance of that account was a debit balance of $44.34 cents. $25,000 of the excess moneys from the loan in Charge 3 was withdrawn by a number of cash withdrawals. The closing balance of that account was $133,608.26 cents. The excess moneys deposited in a streamline account in respect of the loan in Charge 4 were partially withdrawn through cash withdrawals, leaving a closing balance of $95,462.19 cents.
9 Ultimately you represented yourself in your plea hearing. You tendered a bundle of material as Exhibit 1. That material included an outline of your personal history and personal circumstances, which I have taken into account in sentencing you.
10 You are now 41 years old. You grew up in the Melbourne area. Your parents separated when you were young and your father obtained custody of yourself and your older brother. You lived with your paternal grandparents, who effectively raised you. Your grandparents and your father have now passed away. It appears that you had a very close relationship with them. Your younger brother had gone to America with your mother many years ago, but you have now been reunited with your brother after his return to Australia.
11 You met your wife in 1995. You married in 2002 and have four young children. You were diagnosed with Stage 4A follicular cancer or Non-Hodgkins lymphoma in 2010. You were treated for that and were thought to be in remission. In August 2013 scans suggested that the cancer had returned. You provided a letter from your treating medical practitioner, Dr Jue-Chong Ding, who says that a recurrence has been noted and that you have had fluctuating symptoms until now, which have not required intervention. He says you have had multiple visits to the Royal Melbourne Hospital transplant team for consideration of a transplant. It appears that your younger brother may be a match, but you say that there are no plans for you to have a bone marrow transplant in the foreseeable future. Consideration of that option will depend on the progress of your condition.
12 You have been involved in the obtaining of home loans since 1995 in conjunction with your uncle's business and you then went into business on your own. You were employed in December 2007 as a mobile lender by the Commonwealth Bank of Australia. You say that you were successful in that role with referrals coming from Victoria, New South Wales and Queensland, although you were under pressure to meet targets in respect of certain matters. Since your employment with the Commonwealth Bank ended after the investigation of your offending, you have had financial difficulties. You have managed to retain the property in which you live but are in arrears on your mortgage. You say that your wife and children have been very supportive of you. Since losing your employment at the Commonwealth Bank of Australia, you say that you have worked on a casual basis referring people to finance loan providers, but you have not been able to obtain a licence as a finance broker.
13 You have no prior criminal convictions before this offending, but you received a suspended sentence in 2010 in relation to offending which occurred shortly prior to your employment by the bank. I will return to that matter shortly.
14 In her reference your wife describes your hard work in the past. She says that your potentially life-threatening disease is constantly on your mind. Your wife says that she cannot imagine being able to raise your children and run the household without you. She believes that if you are imprisoned your children will be devastated and that it would have a profound impact on them. She is clearly very supportive of you and caring about you. She speaks positively of you as a husband and father. Your wife has been in court to support you.
15 In his reference your brother-in-law describes you as being extremely dedicated to your wife and family. He says that you have been supportive to him and his children. He describes you as "diligent, dependable, honest and unselfish". A further reference is provided from a principal of a real estate agency, who says that he can vouch for your "outstanding character".
16 In your plea you said that you were under some financial pressure at the time of your offending but did not seek to make submissions in relation to your offending. This is consistent with what appears to be your continuing lack of acceptance of your guilt in respect of this offending.
17 In the plea hearing you described your concerns about the hardship your family would suffer if you were incarcerated. You said that your income is the only means of the family financially holding its head above water. You are concerned about your wife's ability to cope financially and with the daily life involving the four children.
18 You said there had been a considerable delay from when your offending was detected. You said that you have not breached your suspended sentence and that there are no further outstanding charges. You have no drug and alcohol or mental health problems to impede your rehabilitation.
19 You said that during the time that this matter has taken to come to court and be finalised you have been trying to get on with your life and you regret what has happened. Effectively your submission was that you should receive a suspended sentence or a Community Correction Order for as long as the Court considered appropriate.
20 The prosecutor in sentencing submissions said that immediate imprisonment would be appropriate and that a period of imprisonment followed by a Community Correction Order would be within range. The prosecutor also said that a suspended sentence option would be available to the court, given the time when these offences occurred. In respect of the delay, the prosecutor said that the lengthy delay was due to the investigation of this matter. It is my view that the length of the delay in this matter between the original interview and charging cannot be explained by any particular complexity in the investigation. The material gathered by the investigators was of a relatively straightforward nature. The delay in the matter coming to trial cannot be attributed to you. The matter has been hanging over your head for a considerable period of time.
21 The reasons for sentence given by his Honour Chief Judge Rozenes on 21 May 2010 in relation to that conviction were tendered as Exhibit B. The prosecutor said in relation to that matter that you were a small player in a bigger operation. You pleaded guilty to one count of trafficking in methylamphetamine between 1 August and 30 November 2007. You had purchased amphetamine-type substances and resold them and introduced the person who sold you drugs to other potential drug suppliers and customers. You were not using drugs. your involvement was purely for profit purposes. You cooperated with police and provided information to the police. You gave an undertaking to give evidence if required. His Honour said that you had only made a relatively small amount of money out of the transactions and were a middle man in financial difficulties at the time. He said you had demonstrated true remorse and contrition. You were convicted and sentenced to 18 months' imprisonment, which was suspended for a period of 24 months.
22 Michael Caridakis, the offending for which I am sentencing you is clearly serious. You engaged in very significant dishonesty. You went to considerable lengths to obtain access to funds to which you were not entitled. You abused the trust of your employer. You used your knowledge of the finance industry to achieve what you wanted. Your offending was planned and carried out in a systematic and sophisticated fashion. The amount of financial advantage obtained through these loans was large, although I note that you obtained access to only a portion of the amount loaned. I note that the bank has the ability to reduce some of its losses through repossession of the land purchased and freezing of the balance in the accounts. The bank may also have been insured, but what that means is that your offending caused some loss to insurers as well as the bank. I have no doubt that the bank has incurred costs in its efforts to recover its losses.
23 You motive appears to have been to access funds to relieve financial problems. I am not able to conclude that there is any direct connection between this offending and the offending for which you were previously sentenced, but it appears that at this stage in your life you were engaged in illegal means to obtain funds.
24 It is my view that the seriousness of your offending is such that a sentence of imprisonment is warranted for the purposes of just punishment, denunciation, general deterrence and specific deterrence. General deterrence is an extremely important factor in order to discourage others who may be in a position in their employment to dishonestly obtain funds for themselves. I consider some weight needs to be given to specific deterrence, although in my view your prospects for rehabilitation are good.
25 You are entitled to a discount for your plea of guilty. Your plea of guilty has saved the expense and inconvenience of the trial continuing beyond the point where it stopped. Your plea of guilty cannot be taken as an indication of remorse, given your subsequent efforts to change your plea and your other statements at various times, which are inconsistent with your full acceptance of your moral or legal responsibility in this case.
26 I have taken into account that the hardship to your family will weigh heavily on you while you are in custody. I do not consider the hardship to your family to be exceptional. The potential hardship to your family can only operate in mitigation of sentence insofar as I have taken into account the anxiety that you will undoubtedly suffer on behalf of your family whilst you are in custody.
27 I have taken into account also your concerns about your health in mitigation of sentence. At present there are no plans for a bone marrow transplant and it appears that your medical condition is relatively stable. I do accept that you are faced with the prospect of a very serious and potentially life-threatening illness and that this prospect will weigh heavily on you whilst you are in custody.
28 I accept that you are a person of previous good character, but that carries less weight than it might otherwise in sentencing for this type of offending. It was because of your supposed good character that you were in a position to commit these offences and you took advantage of that. Your previous good character, your compliance with the suspended sentence, your ongoing efforts to support your family without offending and the lack of any drug or alcohol or mental health issues lead me to conclude that your prospects for rehabilitation are good.
29 I have had you assessed for a Community Correction Order and you have been assessed as suitable. I consider that a period of imprisonment must be imposed and that a sentence of imprisonment wholly suspended would not give sufficient effect to the sentencing principles I have enunciated. I consider that a Community Correction Order in itself would not achieve those purposes either. I am of the view that a sentence of imprisonment to be followed by a lengthy Community Correction Order would appropriately give effect to those sentencing principles and, at the same time, provide for your rehabilitation in the community under supervision. I consider that a requirement to perform work hours would provide an additional appropriate level of punishment and general deterrence. I have taken into account also, in making that decision, the very lengthy delay since the discovery of these offences and the prosecution of these matters.
30 I am required by s.6H(1) of the Sentencing Act 1991 to sentence you in respect of each offence as a continuing criminal enterprise offender. That matter will be entered into the records of the court. I have also taken into account the increased maximum penalty which applies.
31 In sentencing you I have taken into account the principles of parsimony, totality and proportionality. I consider that it would be appropriate in this case to impose an aggregate term of imprisonment to be followed by an aggregate Community Correction Order because the offences for which I am sentencing you formed a series of offences of the same or similar character. They were committed over a three-month period and involved the same victim.
32 Could you please stand up, Mr Caridakis.
33 Mr Caridakis, what I am proposing to do is to sentence you to a term of imprisonment, 18 months, to be followed by a four-year Community Correction Order. The core conditions of a Community Correction Order have been explained to you, I understand, by the community corrections officer. Is that right? The additional conditions that I would impose are that you do 300 hours of community work over the four years and be under the supervision of a community corrections officer.
34 I do not expect that you necessarily agree with that sentence, but do you consent to the Community Correction Order being made?
35 OFFENDER: Yes, Your Honour.
36 HER HONOUR: Thank you. All right. So, Michael Caridakis, on Charges 1,2,3 and 4 you are convicted and sentenced to a term of imprisonment of 18 months, to be followed by a Community Correction Order of four years. In addition to the core conditions you will be required to perform 300 hours of community work and be under the supervision of Community Corrections officer.
37 But for your plea of guilty I would have sentenced you to a term of imprisonment of five years with a non-parole period of three years and six months.
38 Now, Mr Caridakis, the other thing that I must explain to you is that if you breach the Community Correction Order by not complying with the condition or by re-offending, then it would be brought back before me on the breach and I would be in a position then to sentence you in respect of any breach and to resentence you in respect of these offences, so it is important that you comply with the order on your release from custody. Thank you very much. Thank you, Mr D'Arcy. Mr Caridakis can be taken down now.
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