Director of Public Prosecutions v Cullia

[2022] VCC 1529

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-01477

DIRECTOR OF PUBLIC PROSECUTIONS	Prosecution
v
Joseph CULLIA	Accused

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JUDGE:	Her Honour Judge Hampel
WHERE HELD:	Melbourne
DATE OF HEARING:	28 July 2022 and 7 September 2022
DATE OF SENTENCE:	7 September 2022
CASE MAY BE CITED AS:	DPP v Cullia
MEDIUM NEUTRAL CITATION:	[2022] VCC 1529

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Sentence – Obtain financial advantage by deception – forged signature of guarantor on finance documentation for $150,000 luxury vehicle – Guilty plea entered after sentence indication – means and intention to fulfil loan obligations – extra-curial punishment

Legislation Cited:      Sentencing Act 1991 (Vic) s 6AAA

Cases Cited:Worboyes v The Queen [2021] VSCA 169; Chenhall v The Queen [2021] VSCA 175 [35]–[36], Biba v The Queen [2022] VSCA 168 [21]

Sentence:                  $40,000 fine

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Brown	Office of Public Prosecutions
For the Accused	Mr A. Patton	Sarah Pratt & Associates

HER HONOUR:

1Joseph Cullia, you have pleaded guilty to one charge of obtaining a financial advantage by deception.  The charge relates to the obtaining of a $150,000 loan to finance the purchase of a Mercedes vehicle for your own use.

2The background to your offending is this. In 2015, you were in business with Pasquale Di Domenico in a development company named Property Confidential Group Pty Ltd. Mr Di Domenico was a director of Property Confidential Pty Ltd, and also a company called Di Domenico Constructions Pty Ltd.  In addition he was a director with Mr George Hosni of two other companies, Wall Tech Panels Pty Ltd and WT Panels Pty Ltd.

3In about November 2015, you and Mr Di Domenico approached Glen Robertson, a finance broker, looking to purchase luxury vehicles. Conditional approval for a loan for a Maserati was obtained. The applicant for that loan was Di Domenico Construction Pty Ltd and loan documentation was drawn up indicating that guarantees would have to be provided by Mr Di Domenico personally as well as Wall Tech Panels Pty Ltd and WT Panels Pty Ltd.

4The arrangement to lease the Maserati which, as I understand it, was for Mr Di Domenico's use, was eventually abandoned when it was discovered that a 20 per cent cash deposit was required.

5After that fell through some weeks later in mid-December 2015 you, Mr Cullia, went back to Mr Robertson on your own, told him that you were looking for different cars and asked him to send you loan documents. You identified a Mercedes that you had found. By 21 December 2015 Mr Robertson secured finance approval for $129,000 from Mildura Finance Limited through the Bank of Queensland for that vehicle. He sent you the documentation on 22 December and again it indicated, consistently with the documentation prepared for the Maserati, that the vehicle was to be financed through Di Domenico Construction Pty Ltd.

6Later that day, you asked Mr Robertson to amend the documentation for a different Mercedes, one with a purchase price of $150,000. On 23 December Mildura Finance approved a loan for that Mercedes Coupe in the sum of $150,000. That further amended loan documentation again was in the name of Di Domenico Construction Pty Ltd, and consistently with the documentation prepared for the Maserati deal, named Mr Di Domenico, Wall Tech Panels Pty Ltd and WT Panels Pty Ltd as guarantors.

7The loan did not proceed before Christmas and on 29 December 2015 Mr Robertson sent further documents to you for execution. You completed the documents, took photographs of the executed pages and emailed them back to Mr Robertson. Mr Di Domenico's signature appeared on several pages of the documentation, purportedly on behalf of Di Domenico Constructions Pty Ltd.  The evidence indicates that he was out of the country on holidays at the time.

8Mr Robertson told you that the documents needed to be signed by Mr Hosni on behalf of the other two guarantors, Wall Tech Pty Ltd and WT Panels Pty Ltd.

9You then sent Mr Robertson further copies of the loan documentation to which you had added the signatures of Mr Hosni, on behalf of Wall Tech Pty Ltd and WT Panels Pty Ltd.

10You had no authority to do so and Mr Hosni was unaware that those companies had guaranteed your loan or he as a director was a director of two companies that had guaranteed your car loan.

11It was as a result of this false representation that the loan was approved and you took possession of that Mercedes. It is the affixing of Mr Hosni's signature without his knowledge or authority that constitutes the single charge of dishonestly obtaining financial advantage by deception to which you have pleaded guilty.

12By the time the finance was approved and you had obtained the car, it would appear your business relationship with Mr Di Domenico was effectively over and it formally came to an end shortly after that.

13The dishonesty was not detected until late September 2016 and then only by accident, it would appear. You missed an instalment payment of around $2,000 and Mr Di Domenico was notified. He denied any knowledge of his company's ownership of the vehicle, being a vehicle of which you had had exclusive use.  

14In November 2016 a default notice was issued against Di Domenico Construction Pty Ltd and the guarantor companies, Wall Tech Pty Ltd and WT Panels Pty Ltd, in relation to that one missed payment.  Mr Di Domenico forwarded the notice to Mr Robertson and contacted you to ask for a copy of the finance agreement. It would appear he also told Mr Hosni about the finance agreement and the default notice.

15Mr Robertson sent you the default notice and sometime later you advised that the outstanding amount had been paid and attached a receipt.

16But as a result of receiving that default notice, Mr Hosni made contact with you and asked to see a copy of the loan contract. He noted that the companies of which he was a director were listed as guarantors and that the document appeared to bear his signature.  He denied having affixed the signature himself. So that was by then about two years after the loan had been approved and the car had been provided to you and you had had exclusive use of it.

17The matter was reported to the police but it was not until December 2018, a year after that, so three years after the finance was obtained, that you were eventually arrested and interviewed. You told investigators that Mr Di Domenico was aware that you were financing the vehicle through his company and that Mr Di Domenico had signed the loan documentation.  You said the only papers that you had signed were the registration papers for the vehicle.

18You acknowledged that you had been in possession of the Mercedes throughout and you had been making the loan repayments. You also acknowledged that you had been contacted by Mr Hosni in January 2018 and he had asked you to refinance the car and take Wall Tech Panels and WT Panels Pty Ltd off the finance agreement as guarantors. That had not, it would appear, happened by the time you were interviewed by the police in December 2018.

19You initially, having been charged, pleaded not guilty and were committed for trial and it was only shortly before your trial was listed to commence in August of this year that you requested a sentence indication. Following that sentence indication and my indication initially that a community correction order was within range and then my subsequent indication that the matter would be more appropriately dealt with by a substantial fine that you pleaded guilty to this charge of obtaining financial advantage by deception.

20It is therefore in those circumstances a late plea of guilty, but I acknowledge that it was not until Mr Di Domenico had been examined at a pre-trial hearing that discussions then ensued between the parties which resulted in the prosecution limiting its case on deception to the affixing of Mr Hosni's signature, as director of the guarantors Wall Tech Panels and WT Panels Pty Ltd, on the loan documents.

21For sentencing purposes the roles of Mr Di Domenico and Mr Robertson are unclear. I cannot make any affirmative findings as to whether they were complicit or also innocent dupes.

22However, whether others were involved or duped is not to the point.  What you come to be sentenced for is your conduct by presenting documents purportedly signed by Mr Hosni on behalf of Wall Tech Panels and WT Panels Pty Ltd, knowing that he had not signed them or agreed to these companies guaranteeing a loan for a car to be provided to you for your use through Mr Di Domenico's company and your acknowledgement, by your guilty plea, that you dishonestly obtained a financial advantage by deception as a result.

23The maximum penalty for this charge of obtaining financial advantage by deception is 15 years' imprisonment.  However, that does not mean that imprisonment is the only sentence. In appropriate cases community correction orders, fines or other sentencing dispositions are clearly open to the court.

24You are an apparently intelligent, educated and capable man.  You have got a long history of involvement in the construction and finance industries. You have demonstrated yourself to be capable of earning good incomes over the years but despite that you have got, what I consider to be, a relevant and concerning criminal history. Whilst this does not to me indicate that a term of imprisonment is the only way to deal with the matter, it certainly is relevant to fixing the appropriate penalty.

25In 1998 you were dealt with for possession of false documents in the name of three different people and possession of identification material, licences, birth certificate extracts, passport photos and the like, of other people. In other words, documentation and information relating to identity fraud.

26In 2001 you were dealt with for attempting to cash a cheque for $2,150, the proceeds of which you were not entitled to.

27Since the commission of these offences, but before you were charged or dealt with, you have been dealt with by courts for two subsequent offences of making threats. One, in what might be described as a personal capacity but the second more concerningly in terms of context for this offending, a threat made to a business colleague. In respect to both of those matters, you were fined without conviction.

28It follows from that therefore that specific deterrence, in my view, as well as general deterrence, denunciation and just punishment all have to play a role in sentencing.  Despite your intelligence, your history of good engagement in employment and business and financing roles, of being a responsible parent to your two daughters and your engagement in the community more generally, that there must be some reservations placed on assessing your prospects for rehabilitation.

29I am satisfied that the offending is properly characterised as being one motivated by greed, selfishness and status or a desire for a certain lifestyle.  It was suggested on your behalf that this was a momentary panic in order to get the finance through as quickly as possible when it was discovered that the signatures of Mr Hosni were required and this was over the Christmas break.  I am not satisfied that is the case. 

30There was nothing adequate or nothing put to me to suggest that you could not have waited for a few weeks until after the Christmas break, until people were around to seek to obtain Mr Hosni's consent if indeed he were prepared to give it or to find other sources of finance.  That is why I characterise it as greed, selfishness and status-seeking. A $150,000 Mercedes is a very nice car but there are lots of other nice, cheaper cars that could be obtained without pledging other people's credit and that to me encapsulates the moral culpability.

31This clearly is not a case where you did not have the means to pay or you had the means but no intention to pay the loan and I accept that the deception would have been unlikely to come to light had it not been for what appears to be a banking glitch that had led to one missed repayment. You clearly had the means to pay and the intention to pay but a failed payment led to the unravelling. So there is clearly a lesser moral culpability than somebody who has no means to pay and simply wants to get an asset for nothing. However, the gravamen of the offence is the deception in obtaining the finance, not the consequences.

32I also accept and proceed on the basis that you, once the deception came to light, showed every indication that you wished to continue to make the payments on the car. and it was conduct on behalf of the financier who refused to renegotiate the loan to you personally or through other companies associated with you or to accept any further repayments from you that has led to the, what seems on the face of it, extraordinary consequence, which is that you still have possession and use of the car although the financier has declined to take any payment from you for it.

33Since then, I was told ultimately on a plea, that they have written off the debt.  They have been waiting for the outcome of the proceedings and that repossession proceedings will then take place but I say that simply to say there is no evidence that you were intending to get the use of a vehicle without paying or without accepting an obligation to pay. Therefore, whilst it does not detract from what I have said about what I think is your motivation and what is the gravamen and the moral wrong, the pledging of somebody else's name and credit, it does in that sense, sit lower in the scale of the overall assessment of moral culpability.

34Mr Hosni, in his initial communications with the authorities, expressed understandable concern about the impact on his financial reputation, of the credit of his companies being pledged without his knowledge and the risk of what would have happened had you not honoured the obligation to repay and although he ultimately declined to make a victim impact statement, they are not surprising sentiments to be expressed by the person who is inadvertently caught up in somebody else's deception. Again that highlights what I have said about the gravamen of the offending and your moral culpability.

35There are many matters that count in your favour.  Despite that criminal history that I have recounted, you have had a long history of hard work and of being a good father and provider.  By the time the matter came to light, you were the parent with custodial responsibility for your two late teenage, young adult children and you had gone through what appears to have been a very distressing breakdown in the marriage with your wife of many years, the mother of your daughters, and that has had a significant impact on you and on them.

36The family home has gone. You are living in alternative, obviously comfortable alternative accommodation that is not the same as the sort of quality that you had been providing to your daughters before and that is clearly something that I accept has affected you in terms of the sense of what you want to provide for them. But I accept the evidence that you have been a very good father to them and that in the aftermath of what has been a very difficult break-up, you are the one who has been providing them with support and guidance as well as the material comfort and a home. That speaks well. I also accept the evidence that you provide considerable assistance to your parents who are getting older and have needs of their own.

37So in a personal sense, within your own circle, you are clearly a man who has and accepts responsibility and obligations and does so consistently and carefully.

38You have had this matter hanging over your head for five years.  That is a long time and whilst there have been two subsequent matters, they are not dishonesty offences. They are more offences relating to an inability in personal relationships or business relationships to be able to negotiate without threat.

39But it is a long time since there has been any dishonesty between your prior convictions and now. I take that into account. Therefore, the delay and the way you have assumed the responsibility for your daughters' welfare, particularly over that time and dealt with the breakdown of a marriage shows that you have generally used your time well and therefore that does counterbalance, to a great extent, what I said earlier about the reservations that were to be expressed about your prospects for rehabilitation.

40Although your plea was a late one, I have already identified the fact that it was only after the cross-examination of Mr Di Domenico that since serious negotiations about the more limited basis for the deception were entered into and ultimately result in the factual foundation for this plea.  In addition to that, you are clearly entitled to the additional reduction in penalty otherwise appropriate because of the impact of the COVID-19 pandemic on the delays in our court and on the impact on people, particularly those in custody awaiting trial.

41So anybody who pleads guilty and reduces the delay and therefore helps reduce the backlog, must have that acknowledged in the sentence. That is a significant factor to me, not only in being comfortably satisfied that this was not a case where a term of imprisonment should be imposed but also in terms of the actual penalty and the quantum of it.

42I also took into account at the time that I gave the sentence indication that having regard to the impact of COVID-19 on service of a term of imprisonment, that it would be disproportionately punitive to sentence you to a term of imprisonment where it had to be served under COVID conditions.  So, I have taken all of the considerations that the Court of Appeal in Worboyes and other cases have mentioned.[1]

[1]Worboyes v The Queen [2021] VSCA 169 [35]; Chenhall v The Queen [2021] VSCA 175 [35]–[36], Biba v The Queen [2022] VSCA 168 [21]

43It was also put to me that this has had a significant impact on you professionally because you have had to relinquish your financial advisor's licence and that you have not been able to assume the role of director and will not after this, be able to assume the role of a director in a company.  Those are clearly hardships but as I said to Mr Patton at the time of the plea, they are brought upon you by your own conduct and are not mitigatory matters that, to me, significantly affect the penalty which should be imposed. They are, if you like, additional consequences that are a direct result of your decision to do what you did.

44It is to your credit and also in reflection of your clear capacity, that despite the fact you cannot assume the role of a director and you cannot act as a financial advisor, you appear to have obtained and re-established significant and remunerative engagement in the financial sector, where you have considerable skill and experience. I hope this is a salutary lesson for you to be much more careful in future.

45So those are the main matters that I take into account in determining, as I indicated at the end of our sentence indication hearings, that the appropriate penalty was not a community correction order because you were in need of further supervision but rather a substantial fine and one that you indicated you acknowledge was an appropriate penalty and you are prepared to meet.

46So on the charge, the one charge of dishonestly obtain a financial advantage by deception to which you have pleaded guilty, you are convicted and fined an amount of $40,000.

47Now there is a procedure in relation to the fines that have to go to Fines Victoria and the process for negotiating instalment payments if you are unable to pay a lump sum. That will be explained to you and you will be provided with documentation in relation to that but it does not mean you have got to pay that full amount before you walk out of your lawyer's office, Mr Cullia.

48But there are consequences and they will be much bigger consequences than those resulting from the finance company's discovery of what had gone on for you.  Do you understand that?

49OFFENDER:  Yes I do, Your Honour.

50In that case, I declare pursuant to s6AAA of the Sentencing Act that but for your plea of guilty, I would have sentenced you to a term of imprisonment of six months.

51But I want you to understand, Mr Cullia, that would have been had you been convicted after trial.  That is not the penalty that you are to face but it is also an indication of the weight I have given to your guilty plea, the significance of COVID on that.  So, no further orders that are required?

52MR BROWN:  No, Your Honour.

53HER HONOUR:  Thank you. We'll adjourn.