Director of Public Prosecutions v Collins

[2020] VCC 819

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-01608

DIRECTOR OF PUBLIC PROSECUTIONS

v

WAYNE COLLINS

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	1 June 2020
DATE OF SENTENCE:	1 June 2020
CASE MAY BE CITED AS:	DPP v Collins
MEDIUM NEUTRAL CITATION:	[2020] VCC 819

REASONS FOR SENTENCE
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Subject:  Obtain a Financial Advantage by Deception – 2 charges

Sentence:  3 years wholly suspended for 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot
For the Accused	Ms M. O'Brien

HIS HONOUR:

1Wayne Collins, you have pleaded guilty to two charges of obtaining a financial advantage by deception.  Charge 1 involves obtaining a financial advantage for yourself in the sum of $1 million from the ANZ Banking Group and Charge 2 involves obtaining a financial advantage for yourself or another from the company, Bankseea Pty Ltd, in the sum of $1,351,418 from the ANZ Bank.  Charge 1 was committed on 1 July 2013 and Charge 2, the following month, on 27 August 2013.  There's maximum penalty for each of these charges is imprisonment for 10 years.

2The circumstances of your offending are summarised in a plea opening filed by the prosecution and dated 7 January 2020.  That was read to the court by the prosecutor, Ms Foot, and your counsel, Ms O'Brien agreed that the prosecution opening was accurate and forms a proper factual basis upon which I can proceed to pass sentence upon you.  These relatively brief sentencing remarks need, however, to be read in conjunction with that which is obtained in the prosecution opening.

3In this case, in conformance with the COVID-19 emergency protocols of the court the prosecution has filed also a written plea submission, as has your counsel, Ms O'Brien, and these sentencing remarks need to be read in conjunction with the matters set out in each of those submissions.

4Before I turn to the facts of your offending you have also admitted a prior criminal history from a number of court appearances in relation to various matters.  You were before the Williamstown Magistrates' Court in 1983, charged with theft by deception.  About a year earlier you were before the Brunswick Magistrates' Court and dealt with for handling and retention of stolen goods.  In your younger days you had a prior conviction for an act of violence.  In 1998 you were dealt with fraudulently altering the use of identification and then in 2004 you appeared in this court before Her Honour Judge Lewitan and dealt with for obtaining financial advantage by deception and obtaining property by deception.  Her Honour on that occasion gave you a 12 month suspended sentence, suspended for three years.  There are no further prior convictions for dishonesty, although there were some driving matters which are irrelevant, really, to my consideration of the sentence here.

5On the hearing of your plea there has been much discussion about what is properly regarded as a subsequent matter before Judge Maidment in this court on 17 February 2015 when you were dealt with for two charges of obtaining financial advantage by deception.  Those charges related to facts connected with these matters but they occurred after these matters in August and September 2013.  You were charged with, and pleaded guilty, to two charges of obtaining financial advantage by deception.  There were two applications for finance for car loans for others.  Those applications were false and the loans obtained.  The total financial advantage was obtained at $360,000.

6These offences for which I must sentence you occurred in July and August, as I have already said, of 2013.  You provided false information to the ANZ Bank, which resulted in the bank in the first transaction loaning $1 million and the money was largely directed to paying out a mortgage over the property at
97 Green Street, Bulla and held by a company, Central Victorian
Investments Ltd, which was paid out $882,672.74.  That money had been loaned to some people named Annesley, who were the registered proprietors of the property.  According to the disbursements, $70,199.83 was paid to you in relation to that  transaction.  The loan was obtained by lodging false documentation with the ANZ Bank.  It is not necessary that I hear detail of what all the falsities were but the first transaction was a classic false documentation fraud.

7The second transaction was similar, although there the property was ultimately transferred to a company then controlled by you named Bankseea Pty Ltd.  The second transaction enabled Central Victorian Investments Ltd, the registered mortgagee, to be repaid the moneys again owed by the Annesleys and $630,000-odd was paid out to Mrs Charlene Annesley.  $118,581.93 found its way to Bankseea Pty Ltd, a company then controlled by you.  I was told by your counsel that soon after the shareholding that you held in that company was transferred to Mr Annesley so that he controlled those funds.  This was a scheme apparently derived between you and Annesley to obtain moneys to refinance the precarious debt situation that the Annesleys found themselves in with Central Victorian Investments Ltd.  The prosecution concedes that as a result of your frauds the ANZ lost approximately $184,000.

8You, I think, can best be described, having regard to these matters and the prior criminal history, as a serial fraudster.  However, there are a number of factors at play here which, because of matters of law, mean that I cannot send you to gaol, which I would normally do.  The first matter is that you have pleaded guilty, and although it is not at the earliest opportunity, you have pleaded guilty to the charges and by your pleas of guilty you have saved the time and cost of what might have been a reasonably lengthy trial and you have admitted responsibility for your offending and you have advanced the administration of justice.

9Secondly, you, some time ago now, gave a statement to the police about your involvement in the matters that were before Judge Maidment and your statement was valuable evidence in what was to be a trial against a
Mr Jordanou, a Mr Zaya and a Mr Arthur for, amongst other things, what amounted to a conspiracy to defraud in obtaining car loans.  The prosecution agrees that your statement was valuable and of assistance to the prosecution of those others, and the law prescribes that you must get a significant discount because of that involvement.

10However, in this case when you made your statement and, indeed, when you spoke with the police in 2013, you provided to the police the documentation which is relevant to this prosecution.  The prosecution concedes that these charges should have been before Judge Maidment when he dealt with you on 17 February 2015.  The consequence is that you have had these matters hanging over your head for some time.  The prosecution cannot properly explain the inordinate delay but concedes that it is in no way caused by any fault or neglect on your part of your legal advisors.  The law again prescribes that you must get a substantial reduction in sentence because of that.  The rationale is that justice delayed is justice denied.  Had it not been for that fact you can rest assured that I would have sent you to gaol this day.

11It is the law that has save you from going to gaol.  Sometimes it works in funny ways.  Here, because these are fraud crimes and because they are of a kind that are prevalent, one cannot be overly critical of the investigating police officers.  These matters are complicated, complex, intertwined, often rely upon investigation of a number of accounts, a number of companies, obtaining documentation including tax returns, even checking out with the tax office whether or not the tax returns actually exist.  It all takes time and meanwhile there is delay.

12Usually in crimes like this the court would impose a substantial term of imprisonment.  That is because these matters are so complicated the sentence has to reflect general deterrence to deter other fraudsters from engaging in this sort of conduct which strikes at the very fabric of commerce in our society.

13You, as I say, have pleaded guilty.  The prosecution concedes that you have not reoffended in this sort of way since the time of the occurrence of theses offences.  You are connected with a company that runs a successful business installing NBN, and you have a number of people, including family, involved in that business, all of which would be lost were I to send you to gaol.  I have received into evidence a number of references from people who speak highly of you, although I doubt they have been familiar with all of your background and/or the full circumstances of this offending.  Your responsibility for this offending, in my view, is high.  I am not convinced that you are anything other than a fair prospect for rehabilitation but find myself with my hands somewhat tied because of the fact that the law requires me to take this inordinate delay caused by what would appear to be either lack of resources or incompetence into account.  These matters should have properly been before the court some considerable time ago.

14In all the circumstances I have been persuaded by the persistent advocacy of Ms O'Brien that I should not send you to gaol.  On each of the charges you will be convicted and sentenced to a term of imprisonment of two years.  I direct that one year of the sentence imposed on Charge 2 cumulate upon the sentence imposed on Charge 1, making a total effective sentence of three years' imprisonment.  Because these matters occurred at a time when the court could impose a suspended sentence, I am told that you managed to get into that by three days, I propose to wholly suspend the operation of the sentence imposed for a period of three years from this date.

15What that means, Mr Collins, is this.  If you commit any offence punishable by a term of imprisonment in the period of the next three years you will be brought back and re-sentenced.  You understand that?

16OFFENDER:  Yes, I do, Your Honour.

17HIS HONOUR:  And the suspended sentence will be turned into an actual sentence.  You understand?

18OFFENDER:  Yes, I do, Your Honour.

19HIS HONOUR:  Very well.  Come out of the dock if you would and take a seat for the moment.  Ms O'Brien.

20MS O'BRIEN:  As Your Honour pleases.

21HIS HONOUR:  Are there any questions arising out of that?

22MS FOOT:  No, Your Honour.  Just one moment.  I'll just confirm with my - - -

23HIS HONOUR: I should say for the purposes of s.6AAA of the Sentencing Act - - -

24MS FOOT:  Yes, thank you, Your Honour.

25HIS HONOUR:  - - - had you not pleaded guilty I would have sentenced you to a term of imprisonment of five years and I would have fixed a minimum term of three years before which you would not be eligible for parole.

26COUNSEL:  As Your Honour pleases.

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