Director of Public Prosecutions v Coombs
[2023] VCC 338
•7 March 2023
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-21-00850
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT COOMBS |
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JUDGE: | KARAPANAGIOTIDIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 27 February 2023 | |
DATE OF SENTENCE: | 7 March 2023 | |
CASE MAY BE CITED AS: | DPP v Coombs | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 338 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentencing.
Catchwords: Plea of guilty – Obtain financial advantage by deception – obtain property by deception – planned offending against financial institutions – Good prospects of rehabilitation – Delay.
Legislation Cited: Sentencing Act 1991 ss 5; 6AAA.
Cases Cited:Boulton v The Queen [2014] VSCA 342; R v Cockerell [2001] VSCA 239 per Chernov JA; R v Tiburcy [2006] VSCA 244; Worboyes v The Queen [2021] VSCA 169.
Sentence: Community Correction Order for a period of 34 months.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr M. Cookson | Office of Public Prosecutions |
| For the Accused | Mr S. Tovey | Fayman Lawyers |
HER HONOUR:
1 You have pleaded guilty to seven charges of obtain financial advantage by deception and one charge of obtain property by deception. You also consented to this court hearing and pleaded guilty to three summary charges of dealing with property suspected of being proceeds of crime.
Summary of offending
2 The full circumstances of your offending are contained in the agreed prosecution opening marked as Exhibit A and that is the basis upon which I will sentence you.
3 In summary, you were 30 years of age at the time of you offending and in a defacto relationship with your co-accused, Tiffany Schurmann.
4 You operated a criminal business operation which involved the methodology outlined in the prosecution opening. That is, you stole financial information pertaining to real persons. Using this information you then made online applications for credit cards by creating false identities. On occasion, you utilised manufactured false documents. Online applications were made to financial institutions for small personal loans or credit cards. If successful you would attend abandoned or unused property to pick up the card and you would then use the card to make a variety of personal purchases.
5
The primary victims in this matter were financial institutions, namely,
Westpac Banking Corporation, Latitude Financial Services and the American Express Corporation.
6 Your offending generally involved eight incidents, which I will now briefly summarise.
Incident 1
7
On 27 February 2019, you used stolen Victorian driver's licence and bankcards belonging to John McCormack, in order to create an alternative identity of
John McCormack. The John McCormack identity was made with false information, including an address and driver's licence number.
8 You used this identity to apply to the Westpac Banking Corporation for a $25,300 credit card. Westpac accepted that application and granted a line of credit. A credit card was issued and you subsequently collected the card from the bank and that is Charge 1 – Obtain Financial Advantage by Deception.
9 The John McCormack credit card was subsequently used by you to purchase goods and services between 27 February 2019 and 22 July 2019. As a result of the fraudulent account and the use of the card, Westpac suffered a financial loss of $27,312.91.
Incident 2
10
Moving to Charge 2, on 30 April 2019, you used identification documentation to create an alternative identity of William Thomas. The William Thomas
identity was made with false information, including an address on
Lower Dandenong Road, which was a vacant rental property, occupation and driver's licence. Using these details you applied to Latitude Financial Services and were granted a credit card. This was mailed to the Lower Dandenong Road address and collected by you (Charge 2 – Obtain Financial Advantage by Deception).
Incident 3
11 In respect of Charge 3, on 3 June 2019, you used identification information stolen from Scout Financial to create an alternative identity of Chad Cole. The Chad Cole identity was made with false information, including an address at Wonderland Terrace, Mt Martha and occupation and driver's licence (Charge 3 – Obtain Financial by Deception).
12 Using this identity you then successfully applied to Westpac for a $22,200 credit card. A card was sent to the Wonderland Terrace address and you collected it.
13 You then used the Chad Cole credit card to obtain cash, purchase goods and services and fund your lifestyle. As a result of the fraudulent applications Westpac was forced to reimburse a total of $22,991.41.
Incident 4
14 On 3 June 2019, your co-accused, Tiffany Schurmann, used identification information stolen from Scout Financial to create an alternative identity of Sharon Cole. The Cole identity was made with a range of false information, including the Wonderland Terrace, Mt Martha address, which at the time was a rental property still under construction.
15 Ms Schurmann used the Cole identity to fraudulently apply to Westpac for a $22,600 credit card bundle. Westpac accepted the fraudulent application and granted the card. The card was mailed to the Wonderland Terrace address and collected by Ms Schurmann.
16 She used the Sharon Cole credit card to obtain cash and purchase goods and services. A total of 92 separate transactions were performed on the fraudulently obtained credit card.
17 On 24 June 2019, on a number of occasions at the Southland Shopping Centre, you were shown on footage making purchases using this card, including from the Australian Geographic store for $247.46, the Shaver Shop $216.90 and you were also depicted at Woolworth (Charge 6 – Obtain Property by Deception) Purchases were also made from Crown Casino and footage depicted both you and Ms Schurmann.
Incident 5
18 Charge 4, on 3 June 2019, you successfully used the Chad Cole identity to make an application to Latitude Financial Services for a $9450 “credit line” credit card. The card was mailed to the Wonderland Terrace address. You attended and collected it (Charge 4 – Obtain Financial Advantage by Deception).
19 On 9 June 2019, a transaction was made on the second Chad Cole credit card, in which $6496 worth of goods were purchased from the Apple Store at Chadstone.
Incident 6
20 On 3 June 2019, you used the Chad Cole identity to make an application to Westpac for a $22,400 credit card. American Express accepted the fraudulent application and granted a credit card to the Chad Cole identity. It was mailed to the Wonderland Terrace address and collected by you (Charge 5 – Obtain Financial Advantage by Deception).
21 The third Chad Cole credit card was used on 38 separate occasions to purchase goods and services to the value of $22,176. As a result of this fraudulent account, American Express sustained a financial loss of some $17,000.
Incident 7
22 On 7 July 2019, you used personal information stolen from Scout Financial to create an alternative identity of Neha Manchanda. This identity was made with false information, including an address, email and driver's licence. You used this identity to fraudulently apply to Latitude Financial Services for an $8900 “credit line” credit card. Latitude Financial Services accepted the fraudulent application, granted a credit card, mailing it to Belle Crescent, Mordialloc, a vacant rental property where you later attended to collect it (Charge 7 – Obtain Financial Advantage by Deception).
23 On 12 July 2019, an online form was used from The Good Guys store in Springvale to purchase some $4000 worth of goods, using the card and on the same day the credit card attempted unsuccessfully to purchase further products from Kogan online.
Incident 8
24 On 12 July 2019, you used personal information stolen from Scout Financial to create an alternative identity of Wendy Field. This identity was made again with false information, including the same Belle Crescent, Mordialloc address. You used the Field identity to fraudulently apply to Latitude Financial Services for a $9500 “credit line” credit card. Latitude Financial Services accepted the fraudulent application, granted you a credit card, posted it to the Mordialloc address where you collected it (Charge 8 – Obtain Financial Advantage by Deception).
25
On 12 July 2019, there were two attempted purchases using the card but they were declined. The prosecution opening further outlines that using the false identity of Chad Cole you entered into a one year contract with the
National Storage Facility to hire a storage unit. This unit was used by you to store stolen goods and proceeds of crime. A number of documents were located by police upon the execution of their warrant.
26 A number of identity documents were located at the storage unit at 320 Centre Dandenong Road. The identity documents were seized, as outlined in the prosecution opening at paragraph 74 and this is the subject of summary offence 26 – Deal with Property Suspected of being Proceeds of Crime.
27 There were also several items located and seized that were alleged to have been purchased using the fraudulently obtained credit cards, as outlined at paragraph 75 and the subject of summary offence 6 – Deal with Property Suspected of being Proceeds of Crime.
28
On 22 July 2019, police executed a search warrant at your home address. As outlined in the prosecution opening, they also executed search warrants at a number of other addresses, including at the National Storage Facility at 1123A Nepean Highway. In respect of this address you had hired a storage unit for
12 months, using the name Shaun Crinion.
29 On 2 August, a search warrant was executed on the storage unit. The unit was found to contain:
a) A credit line EFTPOS card connected to the fraudulent account of Neha Manchanda and that relates to summary charge 24 - Deal with Property Suspected of being Proceeds of Crime;
b) A NAB Visa debit card in the name of K Holmes. The prosecution alleges that this card is connected to the disbursements from the Sharon Cole identity on 5 June 2019 and that the subject of summary charge 44 - Deal with Property Suspected of being Proceeds of Crime; and
c) The credit line EFTPOS card connected to the fraudulent account of Wendy Field (Summary charge 44 - Deal with Property Suspected of being Proceeds of Crime).
30 CCTV of the person accessing the 1123A Nepean Highway storage unit was obtained and depicted you.
Course of the investigation
31 The prosecution opening details the course of the investigation at paragraphs 90-95 and the relevant meta data analysis at paragraphs 96-103, which I will not repeat here.
32 You were interviewed on 22 July 2019.
Gravity of offending
33 Mr Coombs, on your behalf, your counsel, Mr Tovey, quite properly accepted that your offending is serious, particularly as it involved a form of offending that is often difficult to detect and that was relatively well organised and sophisticated. The seriousness of your offending is also underscored by the maximum sentences prescribed by parliament. I accept the submission of the prosecution that general and specific deterrents loom large in cases such as yours.
34 The combined total amount or value of your offending is approximately $105,000. This figure represents the amount of monies lent by financial institutions or obtained by deception. The total amount of monies actually spent representing the monetary loss suffered is $85,611.32.
35 In assessing the objective seriousness of your offending I take into account the financial sum and period involved and also that your offending was obviously planned, protracted and reasonably sophisticated. I also take into account as an aggravating feature that on Charges 7 and 8 you were on a community corrections order at the time of their commission.
36 While the amount involved is not insignificant, I agree with both counsel that it is not of the high end value compared to other cases seen by this court. Also, your offending is not characterised by a breach of trust. Further, there is no evidence to suggest that there is any loss at the consumer level. In other words, all monetary losses appear to have been borne by financial institutions.
37 Your Counsel submitted that your offending occurred within the context of significant substance abuse. While your offending involved funds being used personally, this was far from offending that was supporting a lavish or outlandish lifestyle. Overall, he submitted that your offending was serious, but considering all matters, including its objective gravity, it was not so serious that prison is the only option.
Plea of guilty
38 On the face of it, Mr Coombs, your plea of guilty is not an early one or one made at the earliest opportunity. In the circumstances, however, I accept that your plea warrants a substantial discount in sentence. As submitted by the prosecution, your ‘plea can be seen as occurring at an early stage in the context of extended good faith negotiations between the parties.’ I accept that your plea of guilty indicates your willingness to facilitate the course of justice.
39 I also accept the submission of both Counsel, that in your case there is strong utility in a plea of guilty. On some charges the prosecution case might be regarded as reasonably strong. While on others it involves circumstantial reasoning that appears to be of a weaker nature. The trial was likely to take at least three weeks and involve complicated evidence, expert evidence and legal issues.
40 Further, I accept that your plea of guilty ought to be given greater weight in accordance with the Worboyes considerations.[1]
[1]Worboyes v The Queen [2021] VSCA 169.
41 I also accept that you have demonstrated genuine remorse. This is reflected in your plea of guilty, the various character references tendered on your behalf and your conduct over the last few years, indicating your remorse and acceptance of responsibility.
Personal circumstances
42 Your personal history was canvassed in the treatment reports of Heidi Lecluse and also by Mr Tovey. You were the only child of your parents, who separated when you were very young. You were mainly raised by your mother, though had regular contact with your father. He remarried and has three children from his second marriage and you are particularly close with one of your sisters.
43 As your counsel submitted, you were someone who started out life in a positive direction. You were supported by family, attended school where you did very well and then at the age of 17 started an electrical apprenticeship. You completed this at Nicholson Group, where you worked for several years, including in a supervisory role. You ended up leaving to start your own business. Ultimately, your business was unable to survive the far reaching effects of the pandemic.
44 You met Ms Schurmann through friends several years ago and formed a relationship. You first resided in Sydney and then travelled around Australia for several years before deciding to start a family. You now have a four year old son, Spencer.
45 You had experimented with drugs earlier in life but in more recent years they started to intrude further into your life, merging with and disrupting your work, social and family life.
46 At first drugs seemed to help you work longer hours. However, it was put on your behalf that slowly and insidiously, drugs started to take over, particularly as a means of coping with the stressors of running your own business. In her reference, your mother, Ilona Bell, notes that your increase in dependence on recreational drug use alienated your long term social friendships, caused significant stress which damaged family and personal relationships and impacted on your employment.
47 I accept that while it is not an excuse your drug use provides context to your prior criminal offending and the current offending.
48 Your counsel submitted that the year 2019 was where everything hit rock bottom. Legitimate work was replaced by drug use and offending and your relationship spiralled into an unhealthy drug dependent one. In her report, Ms Lecluse indicates that around the time of your offending you were likely experiencing symptoms consistent with depression. She also considered that you currently exhibit symptoms of anxiety and sleep disruption. Your counsel quite properly did not reply upon Verdins[2] principles but referred to these matters and her reports as generally relevant to your circumstances.
[2]R v Verdins & Ors [2007] VSCA 102.
Criminal history
49 You do have a relevant prior criminal history that, consistent with your outlined personal circumstances, appears to have commenced in 2016. Your prior history includes drug and dishonesty matters and you have been sentenced to a variety of monetary dispositions and on 28 June 2019, a 12 month community corrections order with conditions.
50 I have already noted that Charges 7 and 8 on the indictment were committed soon after you had been sentenced to this community corrections order. Your counsel submits that at the time you had yet to engage meaningfully with the order. The order was subsequently breached by non-compliance, varied, extended and ultimately, completed by you.
Delay
51 I take into account, Mr Coombs, the significant delay in this matter, some three and a half years. You were arrested and interviewed in July of 2019. It was accepted by the prosecution that the delay in this matter is in no way attributable to you. No issue was taken with the position that a delay of the magnitude presented in this case is burdensome on you.
52 The justification for taking delay into account as a mitigating factor rests upon the twin considerations of rehabilitation and fairness.[3]
[3]R v Cockerell [2001] VSCA 239 per Chernov JA; R v Tiburcy [2006] VSCA 244.
53 First and perhaps foremost where there has been a relatively lengthy process of rehabilitation since the offending, being a process in which the community has a vested interest, the sentence should not jeopardise the continued development of this process but should be tailored to ensure as much as possible, that an offender has the opportunity to complete the process of rehabilitation.
54 Secondly, from the point of view of fairness to the offender, the sentence should reflect the fact that the matter has been hanging over his or her head for some time, thereby keeping the offender in a state of uncertain suspense.
55 Mr Tovey, on your behalf, submits that you are someone who has felt the full weight of the process. You made offers to plead guilty prior to the committal in April 2021, to offending which is not too dissimilar to the amount ultimately settled on.
56 You have not been responsible for the delay. It was occasioned by a combination of delays in preparation of prosecution documents and issues relating to the pandemic.
57 You have also demonstrated rehabilitation during this period, returned to work, completed an earlier imposed community corrections order and also you have not re-offended.
58 The letter from your employer, Stephen Wright, confirms you have worked for him for the past two and half years. He is the owner and director of Remic Civil, a commercial and industrial electrical group. You have proven your skill set, punctuality and excellent leadership skills to the apprentices. You are the company's sole qualified electrician. He also confirms that you have been the subject of random drug testing as a condition of your employment and passed all tests.
59 Further and importantly in your case, you have attended counselling and treatment since July of last year and participated in approximately 14 sessions. You have demonstrated, 'impressive insight' and have sought to equip yourself with the skills and resilience that you will need to remain abstinent from drugs.
60 Today, I was also provided with 13 urine screens undertaken during the course of your treatment, which were all clean and clear of illicit substances.
61 On your behalf it was submitted that term of imprisonment will disconnect you from this treatment, from your work and son and will place at risk the progress that you have made.
Hearing loss
62 In addition, you suffered substantial hearing loss as a result of significant surgery in late 2022. Medical material was provided as to the nature of your treatment. Your long term prognosis is unclear at this stage and you have follow up appointments.
63 Given the recency of your surgery you cannot presently use a hearing aid, nor can you undergo any other operations for a period. You told Ms Lecluse that, 'Your hearing deficits create significant problems for you when communicating with unfamiliar people'. I accept that you suffer from significant hearing loss and that in broad terms this will likely make a custodial disposition more difficult for you than it would for a person of healthy or 'normal' hearing.
64 I also take into account as referred to by Ms Lecluse, that if incarcerated you would experience some concern and anxiety as to the welfare of your young son.
Prospects of rehabilitation
65 In all the circumstances, Mr Coombs, I consider that you have good prospects of rehabilitation. As submitted by the prosecutor, Mr Cookson, however, this offending represents a significant escalation from your prior offending and care needs to be taken to ensure that you do not descend into similar patterns, where quite drastically you turn to offending of this nature.
66 In assessing your prospects of rehabilitation, I take into account your current work and level of responsibility. I also take into account your good work history and as Mr Tovey put it the, 'critical mass of experience you have in leading a positive lifestyle'.
67 I take into account that you have attended for counselling and treatment with Ms Lecluse on approximately 14 occasions, as I have already referred to. She refers to your 'high levels of motivation and commitment to engage with treatment'. She also states, 'Mr Coombs possesses many skills that will enable him to contribute to his community in a positive, proactive way, such as trying new skills and activities, engaging with others with similar skills and actively participating in his community'. She also makes a number of recommendations as to future treatment.
68 I take into account the character references tendered on your behalf. Your father, Kevin Coombs, states that since the offending he has noticed that your priorities have changed. He states, 'Firstly, he certainly understands the severity of these charges and understands what he may miss out on in the future. He now works every day and enjoys going to work. He is spending more time with his mother and sister. He rings or visits me every second or third day and he is home with his son almost every night to put him to bed. He spends every day with his son, both before and after work'.
69 It is also clear from the letters of both your parents that you continue to have family support and also the continued support of your partner.
Parity
70 The principle of parity is relevant in your case as an aspect of equal justice. It requires that like should be treated alike but that due allowance must be made for relevant differences between co-accused.
71 I accept that there are differences in your case and that of Ms Schurmann, including the period of your offending and the monetary value involved. Her offending however was almost identical in method, planning and sophistication. Also, her criminal history is relevantly more extensive than yours.
72 Having sentenced Ms Schurmann, I am also well familiar with her personal circumstances and note broadly, that she was able to call upon similar mitigating factors as advanced on your behalf.
73 Overall, I consider parity remains an important consideration that I must have regard to. The differences in your offending does provide a basis for some justifiable variants in the ultimate outcome and it then becomes a question of what is the appropriate and just sentence in your case.
Sentencing principles
74 The basic purpose for which a court may impose a sentence are punishment, general and specific deterrents, rehabilitation, denunciation and protection of the community.
75 As previously noted, I do accept that specific and general deterrence are important in this case. I take into account the sentencing guidelines referred to in s5 of the Sentencing Act were relevant in your case. I have also had regard to the current sentencing practices for the offences to which you have pleaded guilty. Further, I have taken into account the principles of parsimony, proportionality and totality.
76 Counsel were largely in agreement as to the relevant sentencing principles and considerations in your case. Your counsel, Mr Tovey, submitted that while this was a difficult sentencing task, as relevant principles and considerations pulled in different directions, punishment and deterrence could be achieved without resorting to imprisonment.
77
The prosecutor, Mr Cookson, submitted that the purposes of the
Sentencing Actcan only be met by a disposition involving a period of immediate imprisonment. He submitted that a combination of imprisonment and a community corrections order was a disposition capable of appropriately dealing with the seriousness of the matter.
78 In formulating your sentence I have considered all the submissions of both counsel and the written material. I have also been assisted by the court's guidance in the case of Bolton v R, where it was stated that axiomatically nothing is as punitive as prison. At the same time, the opportunities for rehabilitation in prison are severely limited and imprisonment can be seriously detrimental for the offender.[4]
[4]Boulton v The Queen [2014] VSCA 342.
79 A community corrections order is intrinsically punitive and depending on the length of the order and the nature and extent of the conditions imposed, is capable of being highly punitive. The mandatory conditions attached to each CCO by force of s41(5)(i) affect an offender's liberty and autonomy.
80 A community corrections order is capable of having a significant punitive and deterrent impact. It will operate punitively for every day of its duration and in your case, it will assist to foster and enhance your rehabilitative prospects. You were assessed as suitable for such an order with appropriate conditions.
81 In all the circumstances of your case, Mr Coombs and after very serious and careful consideration, I do not consider that the retributive and deterrent purposes of punishment can only be adequately met through the imposition of an immediate term of imprisonment.
Sentence
82 If I can ask you now to stand? Synthesising all relevant considerations on all charges you are convicted and sentenced to a community corrections order.
83 I will make that order for a period of 34 months, which is just shy of three years and I will impose the following conditions: 230 hours of community work. I will offset 110 hours of work against treatment. Supervision, treatment and rehabilitation for drug use and treatment and rehabilitation for mental health.
84 Along with those conditions I note that there are mandatory ones that also apply that you would be familiar with, having completed a community corrections order.
85 Mr Tovey, in a moment will be given a copy of it and he can go through it with you but it does include other conditions. You have got to report and for you it is Dandenong Corrections within two working days. You need to accept visits. You need to advise them of any change of address. You need to get permission if you are to travel interstate. There are mandatory conditions that attach to each order. You breach an order by committing an offence punishable by imprisonment during its duration.
86
All right. That order commences today for a period, as I have indicated,
of 34 months. So, if you breach the order by non-compliance or committing an offence, you come back. You are dealt with for a breach and you can be
re-sentenced on the original charges, for which you would be at risk of receiving an immediate term of imprisonment. Do you understand?
87 OFFENDER: Yes, Your Honour.
88 HER HONOUR: Thank you. Pursuant to s6AAA of the Sentencing Act, I indicate that but for your plea of guilty I would have imposed a combination sentence in your case. And while it is difficult to be precise, given the various factors in your case, I can indicate that it would have involved some 10 months imprisonment with a community corrections order of some 15 months.
89 I make the forfeiture and disposal orders in the terms sought that were unopposed. Counsel, is there anything further required of me?
90 MR COOKSON: Not from my end, Your Honour.
91 MR TOVEY: No. With those orders made, Your Honour, that completes the matter.
92 HER HONOUR: All right. Thank you. We'll have the order printed and it might be - is that being done now? All right. Mr Tovey, if you would like to approach Mr Coombs with it?
93 MR TOVEY: Thank you, Your Honour.
94 HER HONOUR: We might also need to check the address that appears on that order to ensure it is the current one.
95 MR TOVEY: May it please the court.
96 HER HONOUR: Mr Cookson, I'll have copies made and you will also receive that. I might also for completeness mark as Exhibit D, the amended prosecution opening.
97 EXHIBIT D - Amended Prosecution Opening.
98 MR COOKSON: As Your Honour pleases.
99 HER HONOUR: Thank you.
100 MR TOVEY: Mr Coombs has signed that order, Your Honour and confirms that the address is correct.
101 HER HONOUR: It is correct. Thank you. All right. Mr Cookson, Mr Tovey, thank you very much for your assistance in this matter. We will now adjourn the court.
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