Director of Public Prosecutions v Cumberlidge
[2020] VCC 1547
•17 September 2020
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| GENERAL LIST |
Case No. CR-18-00763
Indictment No. H11787375.3
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN CUMBERLIDGE |
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JUDGE: | HIS HONOUR JUDGE D SEXTON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 June 2020 | |
DATE OF SENTENCE: | 17 September 2020 | |
CASE MAY BE CITED AS: | DPP v Cumberlidge | |
MEDIUM NEUTRAL CITATION: | [2020] VCC 1547 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Sentence – using a false document – obtain property by deception – making a false document – continuing criminal enterprise offender – plea of guilty
Legislation Cited: Crimes Act 1958; Sentencing Act 1991
Cases Cited: Cay v R [2010] 29 VR 560
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms D. Caruso | Solicitor for the Office of Public Prosecutions |
| For the Accused | Mr C. Mandy SC with Mr S. Norton | Stary, Norton, Halphen Criminal Lawyers |
HIS HONOUR:
Introduction
1 Martin Cumberlidge, you have pleaded guilty to an Indictment containing four charges: using a false document which carries a maximum penalty of 10 years' imprisonment; a rolled-up charge of obtain property by deception which carries a maximum penalty of 20 years' imprisonment, as the continuing criminal enterprise offender provisions apply in respect of this charge; and two charges of making a false document which each carry a maximum penalty of 10 years' imprisonment.
Circumstances of Offending
2 The circumstances of your offending were set out in some detail in the Summary of Prosecution Opening for Plea dated 7 July 2020 (Exhibit 1). Through your counsel, you have agreed this is the factual basis upon which you will be sentenced. Given the complexity of that document, some of which was read out earlier today, it will be an appendix to my Reasons for Sentence.
3 By way of a relatively brief summary of your offending, your victim, Mark Matheson, was referred to you as someone who could help him acquire Torana XU1s to add to his car collection. Mr Matheson was, it seems, an avid collector of such vehicles within the classic Holden Torana community. You were relied upon by some within this community for your expertise and reputation in relation to such vehicles.
4 Holden Torana GTRXU1 vehicles were produced between 1971 and 1973 and are considered collectors' vehicles. Depending on the year of production within this period, and the precise model number, these vehicles, if genuine original vehicles, can be valued in excess of $150,000. Vehicles that are restored with original chassis, original tags and engine numbers are considered collectors' items and therefore of considerable value. When a vehicle is restored and for it to have maximum value, it will have its original body shell which will include the original chassis number, its original engine which is stamped with its engine number, along with three identification tags that are unique to that same vehicle. The chassis number is a unique identifier and is stamped to the shell of a vehicle. Each engine also has a unique number which is stamped to the engine. Each vehicle also has the three identification tags.
5 The vehicle identification tags, chassis and engine numbers are therefore of paramount importance to Torana GTRXU1 buyers. Vehicles that have been re-shelled or re-stamped with a different chassis number are considered to be replicas and are worth a fraction of the value of a genuine vehicle.
6 Between 8 August 2006 and 13 January 2011, Mr Matheson purchased Toranas from you, believing them to be genuine Torana GTRXU1 vehicles. Whilst he was aware that the cars would not be in original factory condition, he believed that what he was paying for were cars that had original factory engines, and that the chassis and identifying tag numbers would all match and be genuine. He paid considerable sums of money to you due to this belief. The total amount paid by Mr Matheson to you for these four vehicles was $710,000.
7 Your conduct in selling the four vehicles to Mr Matheson forms the basis of Charge 2 on the Indictment, which is a rolled-up charge in relation to the four vehicles. Your conduct involved obtaining the funds from Mr Matheson, with the intention of permanently depriving him of the funds by deception, namely by making false representations in relation to each of the four vehicles.
8 The nature and detail of those deceptions were set out in Schedule A to the Indictment. On 8 August 2006, you sold what has been described as “the green vehicle” to Mr Matheson for $160,000, representing that it was a Holden Torana GTRXU1. On 12 June 2007, you sold “the pink Holden LJ Torana GTRXU1” to Mr Matheson for $200,000, falsely representing to him that it was a different vehicle to the one previously offered for sale as the “pink Holden LJ Torana GTRXU1” with the identifying details set out in the schedule. On or about 13 January 2011, you sold “the black vehicle” to Mr Matheson for $220,000, falsely representing that it was a Holden Torana GTRXU1. And on or about 13 January 2011, you sold “the silver vehicle” to Mr Matheson for $130,000, falsely representing that it was a Holden Torana GTRXU1.
9 The four vehicles that Mr Matheson purchased from you are not genuine GTRXU1s. The green vehicle is a Torana GTR modified to look like a GTRXU1. The pink vehicle had its identifying numbers removed and replaced so that it would not come up on the stolen list and would appear to be a different vehicle. The black and silver vehicles are Torana S vehicles modified to look like GTRXU1 vehicles.
Offending in Relation to the Green Vehicle
10 On or about 8 August 2006, you sold the green vehicle to Mr Matheson for $160,000, falsely deceiving Mr Matheson by purporting that it was an LJ Holden Torana GTRXU1. The vehicle was visually presented to Mr Matheson, both internally and externally, as a Torana GTRXU1. At no time did you tell Mr Matheson that this vehicle was a replica or a copy, or that it was previously a GTR rather than a GTRXU1. Mr Matheson paid over market value, as he believed he was buying a genuine restored vehicle.
11 Prior to this sale, on 25 February 2005, you had attended VicRoads and registered the green vehicle as an XU1, using a false receipt of purchase for a Holden Torana LJ GTRXU1. Police investigations later revealed that this receipt was not genuine, and that you had used it to deceive the roadworthy inspector at VicRoads that the green vehicle was a GTRXU1 rather than a GTR.
12 Through a complicated series of transactions involving Mr Aldo de Santis and Mr Noel Wood, you had earlier purchased vehicles from these men, and then engaged in various alterations and modifications to transform the green vehicle into what appeared to be a genuine GTRXU1.
13 Your conduct in using a false receipt of purchase for a Holden Torana LJ GTRXU1 with the intention of inducing VicRoads to accept it as genuine forms the basis of Charge 1 on the Indictment, using a false document. As I have described, your conduct in this regard facilitated your ability to later sell the green vehicle to Mr Matheson, falsely representing it to be a Holden Torana GTRXU1, part of the offending captured by Charge 2 on the Indictment, obtain property by deception.
Offending in Relation to the Pink Vehicle
14 In early 2007, Mr Matheson commenced negotiations with you to purchase an unregistered pink coloured Holden LJ Torana GTRXU1 for $200,000. That pink vehicle had certain identifiers as set out in the Summary of Prosecution Opening for Plea.
15 Mr Matheson contacted police to check those identifiers and was informed that it had been listed as stolen nearly 20 years previously in Victoria, and that it had been reported as stolen by the vehicle's owner, Ms Carol Richards-Miller. When Mr Matheson informed you that the car was coming up as stolen, you informed him that you were surprised about this fact, and told Mr Matheson that you had a second pink Torana GTRXU1 that you could sell to him. Mr Matheson then purchased what he believed to be the second pink Torana on 12 June 2007, paying $200,000.
16 Mr Matheson had earlier made enquiries with VicRoads in relation to the identifiers for the second vehicle and was informed that there was no registered interest. Being satisfied that this vehicle was not stolen, he proceeded to purchase this vehicle from you.
17 During subsequent police investigation into this matter, it became apparent that the car purchased by Mr Matheson was in fact the first vehicle that had been offered for sale, and that it had been modified and had its identifying numbers changed, in order to deceive Mr Matheson that he was purchasing a different vehicle than the one previously rejected by him. Your conduct in this regard forms part of the offending captured by Charge 2 on the Indictment, obtain property by deception.
18
In order to facilitate this deception, you committed a number of other offences. Some weeks prior to the sale to Mr Matheson on 12 June 2007, you had been informed by VicRoads that in order to have the pink vehicle registered, you would need to provide proof of ownership and supply a statutory declaration. On 13 June 2007, you therefore attended at the Collingwood Police Station where you completed and signed a false Statutory Declaration stating that you had purchased the pink vehicle with the identifiers set out in the Summary of Prosecution Opening, from an individual in Thornbury on
25 September 1994 to the value of $4,950. For the purposes of signing that false Statutory Declaration, you provided a false receipt dated 25 September 1994 purporting to verify this false sale. Your conduct in relation to the false Statutory Declaration and the false receipt of purchase forms the basis of Charges 3 and 4 on the Indictment, making a false document.
Offending in Relation to the Black and Silver Vehicles
19 In late 2010, Mr Matheson purchased a black vehicle from you for the sum of $220,000, believing it to be a Holden Torana GTRXU1. He also purchased the silver vehicle for the sum of $130,000, believing it to be a Holden Torana GTRXU1. Your conduct in relation to both of these vehicles is captured by Charge 2 on the Indictment, obtain property by deception. In fact, both vehicle shells were originally Torana S models. The black vehicle had been transformed into a clone of a real Torana GTRXU1, and the silver vehicle was a re-shelled, renumbered Torana S which had been transformed to look like a genuine Torana GTRXU1.
20 Mr Matheson had begun negotiations with you to purchase the black vehicle in 2010. He believed the vehicle to be a genuine Holden Torana GTRXU1 with correct and original identifiers. The black vehicle was visually presented to him, both internally and externally, as a Torana GTRXU1. At no time did you tell Mr Matheson that this vehicle was a replica, clone or a copy, or that it had previously been a Torana S.
21 Having earlier purchased the black vehicle, it was not until Mr Matheson attended the Bathurst 40th Anniversary Car Show in October 2012 that he realised there was any issue with this vehicle. He had displayed the black vehicle which he had purchased from you next to Mr Steve Maloney, who was displaying his vehicle. When Mr Matheson and Mr Maloney spoke and compared their vehicles, it became apparent that the engine numbers were the same, indicating a problem. When Mr Matheson confronted you about this, you stated that you had checked the numbers and that you would return Mr Matheson's money if there was an issue.
22 Following a later discussion between Mr Matheson and Mr Maloney around Easter 2014, when they ran into each other at a car show and again discussed the vehicles, police received an anonymous tip and the investigation into this matter commenced.
23 At around the same time as purchasing the black vehicle, Mr Matheson also purchased the silver vehicle from you. That vehicle was sold as a silver 1971 Torana GTRXU1 with identifiers as set out in the Summary of Prosecution Opening. The vehicle was visually presented to Mr Matheson both internally and externally as a Torana GTRXU1. At no time did you tell Mr Matheson that this vehicle was a replica or a copy or that its body shell had previously been a Torana S. It was not until after the car show to which I have earlier referred that Mr Matheson became aware that his vehicle was not in fact a genuine Torana GTRXU1.
24 Subsequent forensic examination established that the vehicle sold was in fact three different cars pieced together to create what was purported to be the silver Torana GTRXU1. Investigations also revealed the vehicle was essentially a fabricated vehicle of the original Holden Torana GTRXU1, with the body shell, engine and chassis number being a combination of components used to construct a vehicle to match the identity tags.
25 After the police became involved, you called Mr Matheson and offered to buy back the silver vehicle, in addition to the black vehicle.
26 When formally interviewed by police on 29 October 2015, you answered 'no comment' to all questions.
Impact on Victim
27 Your victim in this matter, Mr Matheson, signed a Victim Impact Statement on 29 May 2020. That victim impact statement has been tendered in these proceedings. Whilst that statement was not read out during the hearing, I have read and considered its contents carefully. In his statement, Mr Matheson clearly outlines the significant impacts of your offending on him.
28 Victim Impact Statements are an important means through which victims of crimes can meaningfully participate in the sentencing process. I have carefully taken into consideration the contents of Mr Matheson's statement as one of the many factors, in formulating an appropriate sentence in your case.
Offence Gravity and Role Culpability
29 Turning firstly to the obtain property by deception charge in relation to the four vehicles, Charge 2 on the Indictment, I regard the objective gravity of this offending to be significant. Charge 2 is a rolled-up charge, referring to the commission by you of four offences between August 2006 and January 2011. This represents an extended period of time within which your offending took place. Through four separate transactions, you illegally obtained significant amounts of money from your victim, in total obtaining $710,000.
30 In my view, this represents a significant quantum, which must bear upon an assessment as to the objective gravity of your offending in relation to this charge. Whilst it may well be that both yourself and Mr Matheson could, at the relevant times, have been considered wealthy individuals, the amount illegally obtained by you represents significant criminality. Any penalty I impose must reflect these sentencing purposes of denunciation of your conduct and in particular general deterrence.
31 You knew when selling these vehicles to Mr Matheson that they were not original Holden Torana GTRXU1 models. Notwithstanding that you must surely have had ample opportunity to inform Mr Matheson of this, given the inflated prices that were being negotiated, you deliberately chose not to do so. Particularly in relation to your sale to Mr Matheson of the pink vehicle, given that he was contacting you to inform you of his concerns regarding the vehicle being listed as stolen, initially, the sale to Mr Matheson of the pink vehicle could not be described as a simple, swift or uninvolved transaction. Your ongoing failure to come clean, as it were, to Mr Matheson in relation to the true nature of this and the other vehicles accentuates, in my view, both the offence gravity and your moral culpability for your behaviour.
32 I accept, for the purposes of this assessment, that the vehicles sold by you were not without value. I am satisfied that you had spent a significant period of time working on these vehicles and expended significant amounts of money in doing so. Given your reputation within the classic car industry and the evidence adduced at your committal hearing, I am satisfied that these vehicles had both an intrinsic and esoteric value notwithstanding your deceptive conduct, which cannot be ignored.
33 I also accept that there is no evidence upon which I could conclude that you actively sought out your victim in relation to this offending. Rather, it appears that Mr Matheson was referred to you, and it seems actively pursued you in relation to the sale of the vehicles which he believed to be genuine.
34 The false document charges, in my view, further accentuate the gravity of your overall criminality in relation to this matter. Whilst your conduct in using a false receipt of purchase in relation to the green vehicle to register this vehicle with VicRoads, Charge 1 on the Indictment, predates your negotiations with Mr Matheson in relation to the sale of the green vehicle, this conduct nevertheless represents distinct and concerning dishonesty on your part, which no doubt facilitated your dishonest sale of that vehicle on a later date to Mr Matheson.
35
Your conduct in relation to Charges 3 and 4 on the Indictment, in my view, is more serious than your earlier use of the false document in relation to the purchase of the green vehicle, Charge 1. You dishonestly sold the pink vehicle to Mr Matheson on 12 June 2007. Your negotiations with Mr Matheson in relation to this sale, however, commenced in early 2007.[1] On 3 May 2007, you were informed by VicRoads when you attempted to get permission to register the vehicle that you would need proof of ownership and the supply of a Statutory Declaration. You then subsequently attended on
[1]Summary of Prosecution Opening on Plea (7 July 2020) Paragraph 34
13 June 2007 at the Collingwood Police Station, where you completed a false Statutory Declaration stating that you had earlier purchased the vehicle on
25 September 1994 from Mr Simon Murphy, producing a false receipt in this regard.
36 Whilst given the date period set out in Charge 4 on the Indictment, I am unable to conclude that you made the false receipt in direct contemplation of your dishonest sale of the pink vehicle to Mr Matheson, the same cannot be said in relation to the false Statutory Declaration.
37
I am satisfied, given the date upon which that Statutory Declaration was sworn, that you did so to facilitate your dishonest sale of the pink vehicle to
Mr Matheson. This represents deliberate and calculated dishonesty of a significant nature. The making of a false Statutory Declaration at a police station, in my view, represents serious criminality, particularly in the circumstances that I have described.
Sentencing Guidelines
38 In sentencing you, I must have regard to various factors and principles as set out in s.5 of the Sentencing Act 1991. I have already referred to the nature and gravity of your offending, your culpability and degree of responsibility for the offending, and the impact of your offending on your victim, Mr Matheson.
39 I must have regard to the maximum penalties for the offending. As I have stated, the maximum penalty for the false document charges is 10 years' imprisonment.
40 In relation to Charge 2 on the Indictment, obtain property by deception, the Prosecution submits, pursuant to s.6H and s.6I of the Sentencing Act 1991, that an increased maximum penalty of 20 years' imprisonment applies to this charge as you are a continuing criminal enterprise offender, having been found guilty of three or more continuing criminal enterprise offences. I note in that regard, pursuant to Schedule 1A of the Sentencing Act 1991, that obtain property by deception is a continuing criminal enterprise offence where the value of the property obtained is $50,000 or more. The Prosecution submitted that as each instance of your offending in relation to the four vehicles involved property in excess of $50,000 being obtained, you are to be sentenced as a continuing criminal enterprise offender. It was submitted that Charge 2, as a rolled-up offence, is a bundle of offences rolled up into one for the purposes of a plea hearing. Whilst, through your counsel, you initially took issue with this classification and thereby the increased maximum penalty, ultimately your counsel did not press the matter in argument today.
41 Notwithstanding this concession by your counsel, having considered the matter carefully I am of the view that the increased maximum penalty of 20 years applies in relation to Charge 2, as you have through your conviction for Charge 2, been found guilty of three or more continuing criminal enterprise offences. Clearly you were originally charged with separate charges in relation to the four vehicles. Upon an indication by you that you would plead guilty, a plea Indictment containing a rolled-up charge was signed. That rolled-up charge incorporates the four offences in relation to the four motor vehicles. As indicated in the note to s.9 of the Sentencing Act 1991, a rolled-up charge is a charge in an Indictment that alleges that the accused has committed more than one offence of the same type between specified dates. A rolled-up charge alleges a series of separate offences in a single charge and is permissible only with the consent of the accused and on a plea of guilty.[2]
[2]Criminal Proceedings Manual, section 2.2, paragraph 24,
42 As indicated by Appeal Justice Neave in the decision of Cay v R,[3] at paragraph 34:
[3]Cay v R [2010] 29 VR 560, paragraph 34
“Where relevant offences are charged as a single rolled-up count and the count comprises at least one transaction which involves an amount of $50,000 or more, the rolled-up count should be regarded as a continuing criminal enterprise offence falling within Schedule 1A.”
43 In reality you have pleaded guilty to four offences of obtain property by deception where the value of the property obtained exceeds $50,000, such offences having been rolled up into Charge 2 on the Indictment. The authorities are clear in relation to the merits and indeed advantages to you of pleading guilty to a rolled-up charge.
44 I turn now to a consideration of your plea of guilty to the offending and the mitigatory allowance which flows from that. Having considered this matter, I am satisfied that a significant sentencing discount is appropriate in relation to your plea of guilty in the circumstances of this case. Whilst it could not be said that your plea of guilty was entered early in proceedings, given the chronology of this matter, in the particular circumstances of this case, in my view, your plea of guilty carries with it significant mitigatory weight for utilitarian reasons. This was clearly a complex and lengthy investigation by police, leading to a complex prosecution. Notwithstanding the fact that police executed a Search Warrant and seized vehicles at your property on 18 September 2014 with relevant statements being obtained shortly thereafter, you were not interviewed until October 2015. You were not charged until 2 June 2017. A committal hearing took place in April of 2018, with the first listing of your trial listed in 2019. According to the Prosecution, approximately 25 witnesses would have been called by the Prosecution at your trial. Those witnesses included interstate and numerous expert witnesses. There was the likelihood that a view would be required. There was also the significant prospect of at least three days of pre-trial issues prior to empanelment. This would have been a trial involving a most significant amount of factual material to be digested by any jury. To a substantial degree, the prosecution case against you would have relied upon inferential reasoning, which in turn would have required a jury to comprehensively understand the breadth, nature and details of the background within which the offending took place. Further complicating this scenario is the impact of COVID-19. All jury trials in the County Court have been suspended until further notice, given the ever evolving pandemic and its impact on the administration of criminal justice in this state. Your trial, which was estimated to require at least four weeks of court time, would have been unlikely to commence until late next year at the very earliest. Given all of these circumstances in combination, the sentencing discount applicable for your plea of guilty is, in my view, a very significant factor. Any sentence imposed must, in these circumstances, meaningfully reflect the benefit to the Court and the community from your plea of guilty.
45 An analysis of the chronology of this matter reveals that there has been an extended delay in the finalisation of this matter. As earlier stated, the investigation by police into your actions commenced in September 2014, six years ago. Notwithstanding that you were interviewed by police in October 2015, you were not charged until June of 2017. As highlighted in the proceeding's chronology contained in the Summary of Prosecution Opening for Plea (Exhibit A), there have been considerable delays associated with the progress of this matter through both the Magistrates' Court and the County Court. I accept that throughout this extended period, you have been in a state of 'uncertain suspense' as to the disposition of the allegations. Further, I accept that particularly in circumstances where there has been no further offending by you, the delay in this case means that the applicability of the sentencing principles of both specific and general deterrence has been substantially eroded.
46 Significantly, you have agreed to pay compensation to Mr Matheson in the sum of $560,000 by two equal instalments, the first by 31 December this year and the second by 31 May next year. I accept that this represents a significant mitigatory aspect in sentencing in your case. Notwithstanding the complexity in relation to agreed valuations in relation to the motor vehicles in question, you have now agreed to fully compensate Mr Matheson financially for the losses sustained by him through your offending. In my view, this represents significant action on your part, to alleviate the financial consequences on your victim of your offending. It accentuates your acceptance of wrongdoing, provides the foundation for a favourable finding in relation to the issue of remorse (in addition to that reflected through your plea of guilty) and highlights your favourable rehabilitative prospects.
Personal Circumstances
47 Significantly, at the age of 59 you have no prior or subsequent convictions. You have six siblings, aged between 48 and 61. Your brother, Kieran, lives in North Carlton, and cares for your elderly parents, Denise and Keith, aged 82 and 86 respectively. Your mother suffers from a nerve disorder similar to multiple sclerosis and your father, sadly, suffers from dementia. For the past 24 years you have been married to your wife, Katharine, and you have two sons, Jack, aged 19, currently engaged in tertiary studies, and Charlie, aged 17, who is completing secondary education.
48 You left school at the age of 16 and went on to complete a carpentry apprenticeship, engaging in further studies at night school, undertaking a building engineering course and a Diploma of Architectural Drafting at Box Hill TAFE. For the past 40 years you have been in the building industry. As outlined in the biographical summary previously provided by your counsel, you have a significant and indeed impressive employment and work history. By way of example, you have previously owned and operated a company by the name of Designbuilt Pty Ltd, a commercial construction company responsible for the construction of various hospitality venues connected with the Sydney Olympics, and upgrading catering facilities at the Gabba Cricket Ground in Brisbane. You have been involved in the redevelopment of the tearooms at the Royal Botanic Gardens and an upgrade of catering facilities at the Royal Melbourne Showgrounds. Since 2011, you have been responsible for Designbuilt Industries, a project management organisation catering for construction within the medical and allied health industry, and more recently the hotel sector.
49 In 1995, you acquired a building practitioner's licence in relation to domestic and commercial building and you are a licensed project manager. Since the recent expiry of one of your relevant licenses, you have moved from a building focus to hotel fit outs and interior design, which has reduced the income of the company. I accept that upon conviction you will be unable to renew your licenses because they are subject to good character tests and police reports, and accordingly you will no longer be able to practice your profession in the way that you have for all of your adult life. This will necessarily mean that you have to restructure your businesses and the ways in which you are able to generate income.
50 For the purposes of gaining an appreciation of your previous character, I have considered carefully the various character references provided on your behalf, including a letter from your wife, Katharine, dated 17 May 2020, various employment-related references and a reference from your brother-in-law and solicitor, Peter Lynch, dated 24 May 2020. I will just stop there and give those references, Mr Mandy, collectively an exhibit number. They will be Exhibit 2.
51 Those references speak as one in relation to your impeccable reputation in the workplace. You are clearly a man held in high regard by those who know you well. You are also clearly a devoted family man who has endured personal hardships within your own family and who continues to assist in the care and support of your elderly and frail parents. Notwithstanding the nature of these charges, you have a reputation for being honest and trustworthy. Since the commencement of the police investigation in 2014, it is also clear from the references of those who know you well, that you have carried the burden of this prosecution heavily. Perhaps unsurprisingly, you have lost all interest in cars, something which had previously been a passion of yours, and you have sustained periods of depression.
52 Having considered all of the relevant background matters, including the absence of any prior criminality on your part, I am satisfied that this offending, as serious and sustained as it was, is out of character for you, and that your prospects for rehabilitation are indeed very good.
53 Pursuant to s.5(1) of the Sentencing Act 1991, the only purposes for which sentences may be imposed are just punishment, specific and general deterrence, denunciation, community protection, and facilitation of your rehabilitation. In my view, this offending requires me to impose a penalty which adequately reflects the denunciation of your conduct and reflects the important sentencing principle of general deterrence. Likeminded offenders must know that engaging in such serious criminality will have significant consequences in terms of sentencing. For the reasons that I have already stated, I am satisfied that specific deterrence is not a particularly prominent sentencing purpose in this case, and given your favourable rehabilitative prospects, community protection also should not loom large in terms of applicable sentencing practices.
54 As highlighted by counsel in the course of submissions earlier, I am satisfied that the principle of parity has limited if any application in your case, given that Mr de Santis received a Community Correction Order in 2018 in relation to false accounting and obtain property by deception and was dealt with essentially in relation to distinct offending and his circumstances were entirely distinct from yours.
55 Whilst in relation to Charge 2, I have determined that you fall to be sentenced as a continuing criminal enterprise offender with an increased maximum penalty applicable, the relevant maximum penalty is just one of the many sentencing factors to which I must have regard in sentencing you. The fact that an increased maximum penalty is applicable in relation to Charge 2 is relevant to my sentencing discretion, and I have taken it into consideration, though it does not automatically warrant an increased penalty in relation to that charge.
Sentencing Submissions
56 Given the dates of your offending, it is agreed between the parties that suspended sentences in relation to imprisonment, up to three years, are available as a sentencing option. Your counsel submitted that in all the circumstances, a wholly suspended sentence was appropriate. The prosecution submitted that in all the circumstances, a wholly suspended sentence would not be inappropriate in your case.
57 In considering whether it is desirable in the circumstances to make an order suspending a sentence of imprisonment, I have had regard to all relevant matters including the need to ensure that the sentence adequately manifests the denunciation by the Court of the offending, that it adequately meets the purposes of specific and general deterrence and that it adequately reflects the gravity of the offence.
58 Having considered all of the relevant matters, I have determined that a sentence of imprisonment wholly suspended, will appropriately reflect the various sentencing factors and principles in this case. In my view, given the distinct nature of the offending in relation to the false documents, a separate penalty is required to reflect this.
59 Mr Cumberlidge, I am now up to the final portion of my sentencing remarks and I am about to pass sentence on you.
Sentence to be Imposed
60 On Charge 2 on the Indictment, you are convicted and sentenced to 2 years' imprisonment. That sentence is wholly suspended for a period of 2 years.
61 On Charges 1, 3 and 4, these offences being part of a series of offences of the same or similar character, you are convicted and sentenced to an aggregate sentence of 5 months' imprisonment. That sentence is also wholly suspended for a period of 2 years.
62 Pursuant to s.6J of the Sentencing Act 1991, I direct that you have been sentenced in relation to Charge 2 as a continuing criminal enterprise offender for a continuing criminal enterprise offence and that this fact be entered in the records of the Court.
63 Finally, as earlier indicated, I will make the various ancillary orders sought by the prosecution. Firstly, Ms Caruso, any issues or ambiguities in relation to the sentence or have I missed anything?
64 MS CARUSO: No, Your Honour, nothing ambiguous.
65 HIS HONOUR: Thanks. Mr Mandy, anything from your point of view?
66 MR MANDY: No, thank you, Your Honour.
67
HIS HONOUR: Yes, thank you. That completes this matter. Thanks,
Mr Swindon.
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| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE | Court Reference: CR-18-00763 Indictment No: H11787375.2 |
CRIMINAL JURISDICTION
THE DIRECTOR OF PUBLIC PROSECUTIONS
v
MARTIN CUMBERLIDGE
SUMMARY OF PROSECUTION OPENING FOR PLEA
| Date of Document: Filed on behalf of: Prepared by: Abbey Hogan Solicitor for Public Prosecutions 565 Lonsdale Street Melbourne Vic 3000 | 7 July 2020 The Director of Public Prosecutions Solicitors code: 7539 Reference: Shane Kenna Telephone: (03) 9603 7513 File Number: 1703793 |
Background
1.
The offending relates to cars in the Classic Holden Torana GTR XUI community.
2. The offender is Martin Cumberlidge. The victim Mark Matheson was referred to the offender as someone who could help him acquire Torana XU1’s to add to his car collection.
3. Mark Matheson is the victim in this matter. He purchased four Torana’s from the offender believing them to be genuine Torana GTR XU1 vehicles. He was aware that the cars weren’t in original factory condition. He believed that what he was paying for were cars that had original factory engines, and that the chassis and identifying tag numbers would all match and be genuine. He paid over market value for each car due to that belief. It was not until after a car show in 2012 that the victim became aware there was an issue with his Torana’s. Police received an anonymous report relating to potential vehicle frauds being committed on Torana XU1’s which included a report that there was an issue with the black vehicle. Police commenced an investigation in about September 2014. The victim Matheson had not reported the issue to the police.
4. The four vehicles the victim purchased are not genuine GTR XUI’s. The black and silver vehicles are Torana S Vehicles modified to look like GTR XU1. The green vehicle is a Torana GTR modified to look like a GTR XU1 and the pink vehicle has had its identifying numbers removed and replaced so that it would not come up on the stolen list and would appear to be a different vehicle. The total deception amount is $710,000. The pink vehicle will be returned to its original owner Carol Richards-Miller. As the remaining three vehicles have some value the agreed compensation amount is $560,000.
5. In addition to the deceptions the offender is charged with other offences relating to using false documents to aid in the registration of the vehicles. They are:
· Use false document in relation to the green vehicle by attending at vic roads with a false document to register the vehicle (charge 1 on draft plea indictment, charge 3 on trial indictment). The remaining false documents will remain in the summary as context to the offending.
· Make false document relating to the pink vehicle by attending at Collingwood police station and making a false statutory declaration (charge 3 on draft plea indictment, charge 6 on trial indictment)
· Make false document being the false receipt purported to be the sale of the pink vehicle to the offender from Simon Murphy (charge 4 on the draft plea indictment, charge 7 on the trial indictment)
Holden Torana vehicles
6. Holden Torana vehicles that are restored with original chassis, original tags and engine numbers are extremely valuable and considered collectors’ items.
7. When a vehicle is restored and for it to have maximum value it will have its original body shell which will include the original chassis number, its original engine which is stamped with its engine number
along with three ID tags that are unique to that same vehicle. Holden keeps records of all of these numbers and they are unique to each vehicle. Vic Roads records the chassis number and engine number in order to register the vehicle. It is permissible to restore a vehicle but not re-shell a vehicle. Restoring can involve changing paint colour, repairing panels, and rebuilding (not replacing) the original engine.
8. The chassis number is a unique identifier and is stamped to the shell of a vehicle. Each engine also has a unique number which is stamped to the engine. Each vehicle also has three identification tags.
9. As part of the manufacturing process Holden cast a stamp into every engine block and cylinder head with a casting date indicating the day and month in which the engine is built.
10. Re-shelling, cloning or replicating of Toranas in this matter involve the following:
a. Chassis number from one vehicle (usually a wrecked or written off vehicle) being cut out and placed onto a different shell. The vice is that the re-shelled vehicle is then sold or registered as if it was the wrecked or written off vehicle and therefore an original restored vehicle.
b. Engine numbers being ground down and re-stamped. The vice is that the purchaser believes they are buying a shell with a matching engine number.
c. Replication of tags so that the tags match the chassis and engine number. The vice again is that the purchaser will believe that the vehicle is genuine.
d. Additions added to a “Torana S and Torana GTR model” vehicles so that it looks like a genuine GTR XU1 vehicle – eg: additions of larger fuel tanks, clips added, larger wheels, additions of markings and badges to make it look like a genuine model.
e. Modifying a genuine vehicle that was stolen by removing its original chassis number, tags and engine number so that it would not be identified as a stolen vehicle.
11. Vehicles in this state can’t be registered with Vic Roads. Vehicles that have been re-shelled or re- stamped with a different chassis number are considered to be replica’s and are worth a fraction of the value of a genuine vehicle.
Holden Torana GTR XUI Vehicles:
12. Holden Torana GTR XU1 vehicles were produced between 1971 and 1973 and are considered collectors vehicles. The average price for a genuine original vehicle is currently between $102,500 and $152,500 (depending on condition). During the three years of production, approximately 3300 Torana GTR XU1 were built, with quantities split almost evenly between LC and LJ model versions. In August 1972 Holden produced a run of 200 'updated high performance' Torana LJ GTR XU1s that became retrospectively known as 'Bathurst Specials' and a year later came a further and final upgrade - the final batch of 150 'Bathurst' XU1s. These 350 vehicles are considered the most collectible.
13. The vehicle ID Tags, Chassis and Engine Numbers are of paramount importance to Torana GTR XU1 buyers. As the vehicles were produced using standard production type parts and 2 door Torana body shells they are easily cloned/replicated when using specialised equipment to re-stamp engine blocks, make false ID Tags and add other components to replicate the XU1 or XU1 Bathurst.
14. The model Toranas in order of value are:
a. Torana S
b. Torana GTR
c. Torana XU1
d. Torana XUI Bathurst edition
15. The following is a summary of the re-shelling, additions, replications and other modifications made by the offender in order to produce a vehicle that appeared to be a genuine GTR XU1.1
| Green (Re-shelled) | Pink (stolen) | Black (replica/clone) | Silver (replica/clone) | |
| Body actually is: | 1972 Torana GTR | Carol Richards- Miller’s genuine 1972 Torana GTR XU1 (May 1972 build) | 1973 Torana ‘S’ | 1969 Torana ‘S’ |
| Transformed into: | 1972 Torana GTR XU1 | 1972 GTR XU1 (September Build) | 1973 Torana GTR XU150 | 1971 Torana GTR XU1 |
| Deception: | Re-shelled / Replicated | Stolen vehicle and Rebirthed | Re-shelled / Replicated | Re-shelled / Replicated |
1 This table is intended to be used as an aid and summaries the alterations made to the shells, chassis and engine numbers and includes values.
| Matheson paid | 160,000 | 200,000 | 220,000 | 130,000 |
| Shannon’s value | 40,00-50,000 | 30,000-40,000 | 40,000-50,000 | 30,000-40,000 |
| Agreed Compensation amount | 105,00 | 200,000 | 165,000 | 90,000 |
| Matheson Insured for:2 | 120,000 | 155,000 | 230,000 | 90,000 |
| Chassis no | Number has been tampered with Originally BLJ5145B now BLJ51175B | Original number ALJ05412A cut out and new number ALJ11962A welded in from a different Green vehicle | Original number on chassis changed | Chassis number removed and new number welded in from the red Holden |
| Engine number | Non Original engine has had the number ground down and been re-stamped to match the identity of BLJ51175B. Original number unable to be identified. | Non Original engine has had the number ground down and been re- stamped to match the identity of ALJ11744A. Original number unable to be identified. The restoration process identified the engine number for ALJ05412A. Engine block originally cast in May 1973 but restamped to match a September 1973 build. | Non Original engine has had the number has been ground down and been re- stamped. Original number unable to be identified. | Non Original engine which was sourced from chassis BLJ5145B has had the number has been ground down and been re- stamped. |
| Tags | The Tags were transferred from the vehicle sold by DeSANTIS onto the vehicle purchased from WOOD. | Made by Himself - A combination of Holden Torana ID Tags non original to this vehicle tampered with and made to appear original. | Made by Himself and Ordered from the US – And a combination of Holden Torana ID Tags non original to this vehicle tampered with and made to appear original | Made by Himself - A combination of Holden Torana ID Tags non original to this vehicle tampered with and made to appear original |
2 NOE Mark Matheson
| Other modifications3 | Complete restoration of the vehicle. Clip and fuel tank added. Clip added in boot Fuel tank replaced. Fuel line breather added Spare wheel bracket added | Racing additions removed and complete restoration of the vehicle. Seat belt mount moved so that it conformed with a post June 1972 build. Cylinder head casting removed and replaced to match a September 1972 build vehicle4 | Complete restoration of the vehicle. Clip added in boot Fuel tank replaced. Fuel line breather and fender flutes added Spare wheel bracket added Cylinder block modified using a grey substance so that the head casting part number matched the build date of the vehicle. | Complete restoration of the vehicle. Clip added in boot Fuel tank replaced. Fuel line breather added Fender Flutes added Spare wheel bracket added Torana ‘S’ Badge holes welded up |
The offending:
VEHICLE ONE: Covert Green Holden LJ Torana
16. In relation to the green vehicle there are two offences alleged. They are producing a false receipt and presenting that to Vic Roads (use false document charge 1) and the sale of the vehicle to Mark Matheson by deceiving him that the vehicle was a restored Torana GTR XU1 (vehicle 1 in charge 2).
17. On or about 8 August 2006, the offender sold the green Torana to the victim MATHESON for $160,000. The offender sold the vehicle to Mr Matheson and in in doing that he deceived Matheson by selling the vehicle purporting it to be a LJ Holden Torana GTR XU1. The identifying numbers were:
· Chassis number BLJ51175B
· Engine number as JP391848.
3 Evidence will come from Glenn Dower
4 NOE – of Forensic Vehicle Examiner Glen Dower
18. The vehicle visually presented to the victim both internally and externally as a Torana GTR XU1. It has GTR XU1 badge on the side and on the rear5. It’s number plate when sold was XU 150. It also contained the fuel clips, larger fuel tank and the spare wheel bracket the are unique to the XU1. The stamped number on the vehicle engine had a JP number which is correct and unique to the LJ Torana XU1 type. Other model Torana’s do not have an engine number with the JP prefix.
19. At no time did Cumberlidge tell Matheson that this vehicle was a replica or a copy or that it previously was a GTR rather than a GTR XU1. Shannon’s has since valued the vehicle as being worth $40,000-
$50,000. This is consistent with the classic car guides value of a replica model in fair-good condition. Compensation has been agreed in the amount of $105,000.
20. Matheson paid over market value as he believed he was buying a genuine restored vehicle and he is collector. The price set by the offender was not a price consistent with replica’s or clones but rather for genuine GTR XU1’s.
21. Matheson insured the vehicle for market value with Shannon’s insurance for $120,0006 however he told VicRoads on 10 August 2006 that the dutiable value was $4,000.00.7
The offending relating to the false documents:
22. On 25 February 2005 the offender attended VicRoads and registered the Green coloured 1973 Holden LJ Torana Coupe as XU150, bearing the following identifiers: Chassis Number: BLJ51175B and Engine Number: JP391848, with a value of $7,000.8 (Use false document charge 1)
23. In approximately the year 2000 witness DeSANTIS purchased a Torana GTRXU1 in a rusted damaged condition painted a yellow colour without the original engine. DeSANTIS believed that the vehicle had been re-shelled and that a non-original engine (NP5516) was supplied at the time of purchase.
5 See photographs of Green vehicle photo 1 and 2
6 Evidence will come from Matheson’s insurer when available and will be disclosed
7 Brief page 307 Vic roads transfer papers Matheson will be provided with s128 advice
8 Page 435 depositions vic roads registration 25 Feb 2005
24. DeSANTIS sold the car to Cumberlidge. At the time of the sale DESANTIS told Cumberlidge what he knew about the vehicle. DeSANTIS told Cumberlidge that the vehicle had been re-shelled and was not original.9
25. Police located 2 receipts at the offender house.
· The first one states that on 4th November, 2000, DESANTIS sold the vehicle to the offender as a 1973 Holden Bathurst LJ GTR XU1 with engine: NP5516 in need of restoration for $10,000.10
· The second one states that on 4th November, 2000, DESANTIS sold the vehicle to the offender as a 1973 Holden Bathurst LJ GTR XU1 with engine: JP391848 in need of restoration for
$7,000.11 (uncharged)
26. The first receipt is consistent with the evidence of DeSANTIS. The second receipt is consistent with aiding Cumberlidge creating a genuine line of history for the vehicle to deceive the Roadworthy inspector, VicRoads and then Matheson that the vehicle was a GTR XU1 rather than a GTR.
27. Various witnesses gave statements as to the steps the offender took to modify the GTR vehicle into what appeared to be a GTR XU1. This includes a panel beater Scott Dowie, DeSantis and photographs located by police in warrants.12 13:Police also located letters from Holden in the name of Cumberlidge and notes at the accused residence outlining the build history of the original GTR XU1 vehicle.14 15 Police also located VicRoads documentation and roadworthy notices in relation to the registering of the vehicle.16
28. Records show that the Holden Torana bearing chassis number BLJ51485B had been previously registered in NSW as a Blue coloured 1973 Holden Torana GTR No: GKY441 with engine No: 186P369022. Noel WOOD sold this vehicle to Cumberlidge on 6 of April 2004 for $3,500.17
9 Statement of DeSANTIS page 295
10 Page 295 brief
11Page 294 brief
12 Dowie statement page 193 brief.
13 NOE 19 July 2018 statement of DeSantis page 1-2
14 Deps page 420
15 Deps 423 and 424
16 Deps pages 428
17 Statement of Wood page 191 brief and receipt page 450 deps
29. Police located a Trading Post advertisement18 and a notice of disposal between Cumberlidge and Wood for a Torana GTR.19 Police also located NSW Registration plates GKY441 in the offender garage that was registered to that vehicle. It is the prosecution case that the body shell BLJ51485B was substituted and used as the body shell for the green car, but the numbers BLJ51485B were altered to suit the identifying numbers from the yellow vehicle BLJ51175B. This then transformed Wood’s vehicle a Torana GTR into what become the green vehicle a Torana GTR XU1(uncharged20).
30. On 25th September 2015, Victoria Police Forensic examiners completed an inspection of the vehicle. A summary of the modification is contained in the table at the commencement of the opening.
31. The vehicle owned by MATHESON is a replica of the original Holden Torana GTR XU1 produced by Holden in 1973 bearing the following identifiers: Chassis Number: BLJ51175B and Engine Number: JP391848. Cumberlidge used the body shell purchased from WOOD being BLJ51485B previously registered as a Holden Torana GTR in NSW to transform the Torana into what appeared to be a genuine GTR XU1.
32. MATHESON believed due to what Cumberlidge had told him, the way the vehicle visually looked (badges, number plate, internal and external presentation) and the price that he paid that he was purchasing was a genuine Torana GTR XU1 and as such paid above market value for a restored Torana GTR XU1. (Vehicle 1 (Green) Charge 2 on plea indictment)
VEHICLE TWO: PINK Holden LJ Torana
33. In relation to the pink vehicle the offender is charged with 3 offences. They are make false document in that he made a false statutory declaration which he then produced to Vic Roads to register the vehicle (charge 3); make false document in making a false receipt purporting to be a receipt for the purchase of the vehicle from Simon Murphy (charge 4) and obtaining a financial advantage by deception in the sale of the pink Torana to Mark Matheson (vehicle 2 in particulars of charge 2).
34. In early 2007 Matheson commenced negotiations with the offender to purchase an unregistered Pink coloured Holden LJ Torana GTR XU1 for $200,000. At the time the offender had two unregistered Pink coloured Holden LJ Torana GTR XU1’S that he was restoring.
18 Deps pg 451
19 Deps page 448
20 Uncharged but relevant as it outlines the illegal steps taken to create the vehicle and thus effect the deception.
35. During the investigation into the matter it became apparent that the car purchased by Matheson was the first vehicle that had been offered for sale and that it had been modified and had its identifying numbers changed. This was done in order to deceive Matheson that he was a different vehicle than the one previously rejected by the victim. To complete this process Cumberlidge committed a number of other offences in order to have the car registered with VicRoads.
36. What Matheson purchased was Carol Richards-Miller’s 1972 GTR XU1 Torana but in a restored condition with the original identifiers removed and replaced to make it appear to be the second pink Torana GTR XU1 a September 1972 built vehicle. (vehicle 2 of charge 2)
Background of purchase:
37. Matheson originally negotiated with Cumberlidge to purchase a pink vehicle for $200,000 with the following identifiers:
a. Holden Torana GTR XU1 pink in colour;
b. PSN Tag: 82911JL202297;
c. Chassis No: ALJ05412A;
d. Engine No: JP148032
e. Build Date: 7/1972
38. Matheson contacted police to check the identifiers of this vehicle and was told it had been listed as stolen nearly 20 years previously in Victoria and had been registered as EBB 430 on 14 December 1992. This car was owned by Carol Richards-Miller’s and had been reported stolen by her.
39. Matheson told the offender that the car was coming up as stolen. Cumberlidge told Matheson he was surprised the car was coming up as stolen and told him he had a second pink Torana GTR XU1 that he could sell to him.
40. Matheson then purchased what he believed to be the second Pink Torana on 12 June 2007. He paid Cumberlidge $200,000 for the vehicle. The identifiers on the vehicle purchased by Matheson were:
a. Holden Torana GTR XU1 pink in colour
b. PSN Tag: 82911JL213079
c. Chassis Number: ALJ11962A
d. Engine Number: JP212184,
e. Build date: 9\1972
f. Body Tag No: 871-A
41. On 30 April 2007 Matheson made enquiries with VicRoads in relation to the identifiers for the second vehicle and was told there was no registered interest. He was satisfied it was not stolen and believed it was not the same vehicle that he had previously rejected.
42. On 31 August 2007 Matheson attended at VicRoads and registered the Pink coloured 1972 Holden Torana Coupe as PINKLJ. He insured the vehicle at Shannon’s Insurance for $155,000 but registered it at VicRoads with a value of $25,000. Shannon’s have since valued the vehicle at between $30,000-
$40,000. Whilst the vehicle is a GTR XU1. Due to the offender cutting out and replacing the chassis number the vehicle is unlikely to be registrable in most states in Australia and is only suitable for motorsport, display or for stripping for parts21. The prosecution will seek compensation for the full purchase price of $200,000 as this vehicle is to be returned to Mrs Richards-Miller.
False documents
43. After the deception the offender did various steps to have the vehicle registered.
44. On 3 May 2007 Cumberlidge made a request to VicRoads to get permission to register Holden Torana bearing the following identifiers: Chassis Number: ALJ11962A and Engine Number: JP212184.22 On the 25 May 2007, the offender was given permission to register the vehicle based on proof of ownership and the supply of a statutory declaration.23
45. On 13 June 2007, the offender attended at the Collingwood Police Station where he completed and signed a false Statutory Declaration stating that he purchased Holden Torana bearing the following identifiers: Chassis Number: ALJ11962A and Engine Number: JP212184 from Simon Murphy of a Speight Street, Thornbury address along with a receipt dated 25 September 1994 to the value of
$4,950.00. Police located a copy of the VicRoads documents, the signed Statutory Declaration and receipt at the offender house.24 (charge 3 – make false document – false statutory declaration)
21 NOE – David Johnston – Shannon’s report
22 Letter from offender to vic roads at page 510
23 Letter from vic roads to the offender at page 509
24 Receipt purported from Murphy at page 505. Statutory declaration at page 507
46. Simon Murphy states that he was once a business partner of the offender. The business relationship ended badly and Murphy has had no contact with the offender since then. He further states that he lived in Speight Street, Thornbury with a former partner and had moved out of the address in around November 1993. At no stage has ever owned a Holden Torana, nor did he sell Holden Torana to the offender. (charge 4 – make false document – false receipt)
History of offender’s dealings with the pink vehicle:
47. Denis Masut states that in about 2005 he had purchased the shell of a LJ XU1 Torana which had original VIN plates identifying the original colour as strike me pink. He will state that the rolling shell had been heavily modified to be a drag vehicle. He realised the restoration was too big a job for him and he re- advertised it with the help of a friend named Sean Tunney. He sold the vehicle shell to a “Martin” for the same amount he paid for it in “excellent condition”. He will further state that about two months after he sold the car to Martin he received a call from Martin telling him that the rolling shell was listed at Vic Roads as stolen.25
Investigation
48. On 18 of September 2014 police executed search warrants on the offender address. Police located the chassis plate and identity tags belonging to Holden Torana Chassis No: ALJ05412A with Engine No: JP148032 which was listed as Victoria stolen vehicle registered EBB430 in the offender office area. These are the tags and identifiers that belong to the car that Matheson purchased and previously owned by Carol Richards-Miller.
49. It is the prosecution case that the offender removed the chassis plate and tags and replaced them in order to be able to sell and register the vehicle. He did this to deceive Matheson that he was buying the second pink car rather than the car that was coming up as stolen. Cumberlidge also made other alterations to the vehicle so that it would match the new identifying numbers and tags. This would also deceive Matheson as to the actual vehicle being purchased.
50. On 18 of September 2014 police officers Detective Florence and Detective Bertoncello conducted a video recorded field interview whilst executing a search warrant on the offender address. The offender
25 Statement of Masut page 301-302 of depositions
was shown the ID Tags and Chassis plate which had been located by police at the offenders residence. The offender stated that he purchased the vehicle from a male named Sean Tunney in Morwell for
$15,000 and restored the vehicle. He later found out that the vehicle was stolen and stated he attempted to clear the matter up. He stated that he was unable to clear the matter so he stripped the vehicle of the componentry he had put in it. He agreed he cut out the VIN and tags that were found at his residence. He stated that the body shell had be re-located to the DESANTIS residence.26
51. Police were unable to locate the body shell at the DESANTIS residence. DeSantis gave a statement and outlined his knowledge of the vehicle27. Forensic examination of the pink vehicle purchased by Matheson from Cumberlidge identified that it was the Carol Richards stolen vehicle and not cut up or stored at DESANTIS residence as stated by offender.
Forensic evidence:
52. On 12 March 2015 and again in 2019, Victoria Police Forensic examiners completed an inspection of the pink vehicle purchased by Matheson. A summary of the alterations in contained in the table at the commencement of the opening.28
53. Various witnesses including the original owner Ms Richards-Miller and Dion Heard gave statements consistent with the vehicle being the Richards-Miller Torana XU1.
54. Police ascertained that Holden LJ Torana body No: 871 belonged to a white vehicle Victoria registered LGK216. This vehicle was destroyed and written off.29 It is this vehicles identifiers that were put onto the pink vehicle which deceived Matheson that he had purchased the second pink vehicle.
Interview:
55. CUMBERLIDGE initially stated in a field interview that he was aware the car was stolen. That he had had kept the Chassis Plate and ID Tags and that the rest of the body shell was located at the DeSANTIS residence.
26 A notice of incriminating conduct was filed for trial
27 Statement of DeSANTIS page 3 - 6
28 NOE of Dower – statement dated 25 January 2019
29 Notice of admission
56. When formally interviewed on 29 October 2015 the offender gave a ‘no comment’ response to all questions.
VEHICLE THREE: BLACK Holden LJ Torana
57. In 2010 the Matheson purchased 2 further Torana GTR XU1’s. These are the black and silver cars. The offender is charged with obtaining property by deception relating to the sale of these two vehicles to Mark Matheson (vehicle 3 and 4 as particulars of charge 2).
58. It is the prosecution case that both vehicles shells were originally a Torana S. The black vehicle has been transformed into a clone of a real Torana GTRXU1 owned by witness Steve Maloney. The silver car is re-shelled, re-numbered Torana S which has been transformed to look like a genuine Torana GTR XU1.
Black vehicle:
59. On 5 October 2012, Matheson attended the Bathurst 40th anniversary car show to celebrate 40 years of the Torana GTR XU1. He displayed the black Torana he had purchased from Cumberlidge. This vehicle was registered BLKXU1 and during the show witness Maloney and Matheson had their vehicles displayed next to each other. Moloney’s vehicle was registered LRH582. Moloney and Matheson had conversation when it became apparent that the engine numbers of Maloney’s car and Matheson’s car were the same. As engine numbers are unique they discussed that they would have to work it out as both could not have the same engine number.
60. It is the prosecution case that the vehicle purchased by Matheson is a fabricated replica of Moloney’s vehicle. Moloney’s vehicle had not been registered for many years and is the prosecution case that an inference can be drawn that the identifying numbers for Maloney’s vehicle was used as it was believed to no longer exist.
Offending:
61. In 2010 Matheson began negotiations to purchase the black vehicle. Matheson paid Cumberlidge
$220,000 for the vehicle. Matheson believed the vehicle to be a genuine Holden Torana GTR XU1 with correct and original identifiers. The black vehicle identifiers are:
·Chassis no BLJ29624A
·Engine no JP403321
62. The black vehicle visually presented to the victim both internally and externally as a Torana GTR XU1. It has a GTR XU1 badge on the side and on the rear30. It also contained the fuel clips, larger fuel tank and the spare wheel bracket the are unique to the XU1. The stamped number on the vehicle engine had a JP number which is correct and unique to the LJ Torana XU1 type. Other model Torana’s do not have an engine number started in JP.
63. At no time did Cumberlidge tell Matheson that this vehicle was a replica, clone or a copy or that it previously been a Torana S rather than a GTR XU1. The price negotiated was inconsistent with the vehicle being a clone or a replica but rather for a genuine GTR XU1.
64. On 13 January 2011 Matheson attended at VicRoads and registered the Black coloured 1972 Holden Torana Coupe as YDV406, bearing the following identifiers: Chassis Number: BLJ29624A and Engine Number: JP403321. He insured the vehicle with Shannon’s as a Torana GTR XU1 for $230,00031 but only registered it with Vic Roads for the value of $25,000. The victim stated on the registration form that the vehicle was purchased from M. CUMBERLIDGE from a Parkville address and a Mr Keith Loris CUMBERLIDGE from a Sapphire Beach address32.
65. It was not until the car show that Matheson realised there was any issue with his vehicle. He contacted the offender who stated that he had checked the numbers and that he would return the victim’s money if there was an issue. In a later phone call the victim asked the offender if he would buy it back.33 The offender told the victim he was waiting to hear back from someone else who would buy it. The victim decided not to sell it back to the offender as he did not want anyone else to be deceived.
30 See photographs of Black vehicle photo 1 and 2
31 NOE Matheson 31 January 2019 statement dated 24 January 2019
32 Deps page 570
33 This will be relied on as incriminating conduct
The black vehicle has been valued by Shannon’s between $40,000 to $50,000 as a replica GTR XU134. This is consistent with the complete classic cars value for replica GTR XU1’s in good condition.
Compensation has been agreed in the amount of $165,00035.
66. On 8 of October 2012 Cumberlidge completed a Freedom of Information Request to VicRoads on LRH582 (Moloney’s vehicle).36 The completed request indicated that both vehicles bore the same engine number of JP403321 and that LRH582 had been registered on 30 October 1973 with that engine number.37
67. At about Easter 2014 the victim saw Steve MOLONEY again at a car show and they discussed the vehicles. It was after this conversation that the police received an anonymous tip and the investigation commenced.
Investigation:
68. Witness DeSANTIS will give evidence that in approximately the year 2000 he purchased a rolling body shell in undercoat with no engine and sold it to Cumberlidge on 21 of May 2004. DeSANTIS sold the vehicle as a 1973 Torana coupe chassis No: BLJ29624A for $3000.00. Police located the following note pages at the DESANTIS house.
· The first one states Martins black 9/73 Bathurst XU1 engine. The reverse side has a copy of a photograph of the engine number JP40332138.
· The second one states that Martins Black XU1 came from T/Town with a QL Engine in 1985. Peter Stevens’ mechanic owned the black car. Anthony has records in 85 on paint tag blank39.
· 19/08/06 check for Martin 73 Bathurst XU1 “Black” and the details of a vehicle which in fact was originally white40.
· The second one states check for martin 73 Black 73 Bathurst smashed from North NSW41.
34 NOE- Report of David Johnston
35 Purchase price minus midpoint value of replica.
36 Deps 587-588
37 Deps page 580
38 Deps 837
39 Deps 838
40 Deps 839
41 Deps 840
69. DeSANTIS states that on the day of the car show that Cumberlidge called him and told him that there was a problem and that two cars had come up with the same chassis, engine and VIN numbers. Cumberlidge told DeSANTIS that one of the cars was his old black car and the other was an unrestored sunburst gold car. Cumberlidge told DeSANTIS that his car was the right car and the other was a dud. He further told DeSANTIS that the black car had come from Bob Jane and they must have done something shifty.
70. Police ascertained that the Holden Torana sold to Cumberlidge by DeSANTIS bearing chassis number BLJ29624A had been previously registered in Victoria as a Gold coloured 1973 Holden Torana S - 2 door No: LPJ680 with engine No: CD40368342. Police spoke to the previous owner, who states that DESANTIS purchased the vehicle in an undercoat condition without a drive line for $1500 in approximately 2001. The vehicle was sold as a Torana ‘S’ coupe and not as a Torana GTRXU143.
71. Police contacted Data Tag in the USA who stated that they supplied the offender on the 16 April 2010 with brand new VIN identification Tag. A letter from the offender to AG Backeast confirms the payment for replacement tags and attaches an email from DeSANTIS making that enquiry. The offender had stated that he needed a replacement Tag and provided a copy of a Holden Letter and a Registration notice.44
72. On 26 May 2015 and again in 2019, Victoria Police Forensic examiners completed an inspection of the black vehicle that Matheson had purchased. A summary of the alternations are contained in the table at the commencement of the opening.45
73. Witness Moloney will give evidence that he purchased his vehicle in 2006. The vehicle was inspected and photographed by police. The police ascertained that this vehicle was in an unrestored condition baring original chassis No: BLJ29552A with engine No: JP403321. The identity Tags and including the PSN Tag are original to the vehicle have not been removed. The black vehicle purchase by MATHESON is a fabricated replica of Maloney’s vehicle.
74.
MATHESON believed that he was purchasing a Torana GTR XU1 given what Cumberlidge had told him, the way it visually presented including the badges on the front and the side and due to the price he
42 Craig Chandler deps page 342
43 Spendlove deps page 328
44 Deps page 553 – 555
45 NOE 31 January 2019 Statement of Glen Dower 25 January 2019
paid. As the vehicle was in an excellent restored condition he paid above market value for a Torana GTR XU1.
75. When formally interviewed on 29 October 2015 the offender said no comment to all questions.46
VEHICLE FOUR: Silver Holden LC Torana GTR XU1
76. At around the same time as purchasing the black Torana in 2010 Matheson also purchased a silver Torana from Cumberlidge. Matheson paid $130,000 for this vehicle. This Torana was sold as a silver 1971 Torana GTRXU1 with the following identifiers:
·Chassis No: ALC36605A
·Engine No: CK50656
·PSN: 82911CL186899
·Registration KCK 186
77. The vehicle visually presented to the victim both internally and externally as a Torana GTR XU1. It has GTR XU1 badge on the side and on the rear47. It also contained the fuel clips, larger fuel tank and the spare wheel bracket the are unique to the XU1. The stamped number on the vehicle engine had a CK engine number which is correct and unquie to the LC Torana XU1 type. Other model LC Torana’s do not have an engine number commencing in CK.
78. At no time did Cumberlidge tell Matheson that this vehicle was a replica or a copy or that its body shell had previously been a Torana S rather than a GTR XU1. The price negotiated was inconsistent with the vehicle being a clone or a replica but rather for a genuine GTR XU1.
79. On 13 January 2011 the Matheson attended VicRoads and registered a Silver coloured 1971 Holden Torana Coupe. He insured the vehicle with Shannon’s insurance for $90,000 but only registered it with VicRoads at value of $2,300. On the registration form Matheson stated that the vehicle was purchased from M. CUMBERLIDGE from a Parkville address that had purchased it from a Mr Keith Loris CUMBERLIDGE from a Sapphire Beach address.
46 The prosecution will not lead this at trial
47 See photographs of Silver vehicle photo 1 and 2
80. Again; it was not until after the car show that Matheson became aware that his vehicle was not a genuine Torana GTRXU1. Shannon’s has since valued the silver vehicle between $30,000-$40,000 as a replica48. As police are unable to ascertain the history of the vehicle it will not be able to be registered. Compensation has been agreed in the amount of $90,00049. Making a total compensation amount of
$560,000 for the four vehicles.
Investigation:
81. Forensic examiner Dower established that the vehicle is 3 different cars pieced together to create what was purported to be the Silver Torana GTR XU1.
82. In relation to the Chassis no on the final car police ascertained that Holden LC Torana bearing the following identifiers: Chassis Number: ALC36605A along with Engine Number: CB/60024 was first registered in Victoria on 17 November 1971, as a Red coloured vehicle LAC898. In 2001 Chassis No: ALC36605A was archived at VicRoads. This vehicle was not a Torana GTR XU1 and Engine No: CB/60024 denotes a 138 CID engine and not the required GTRXU1 186 CID engine.
83. Police ascertained that the engine in the silver care being the restored Engine No: 186P36?022 had been previously fitted to Holden Torana bearing chassis number BLJ51485B, NSW registered as a Blue coloured 1973 Holden Torana GTR No: GKY441 with engine No: 186P369022. This is the vehicle owned by Noel Wood that was also used to create the green Vehicle. Police spoke to the previous owner, who states that the offender purchased the vehicle on the 6 of April 2004 for $3,50050.
84. Witness Dion HEARN from HEARNS Fabrications Deniliquin who restored the silver vehicle will give the following evidence:
a. The offender brought the components of 2 wrecked 1971 Torana XU1 vehicles to him to restore in approximate 2004 or 2005.
b. The offender had purchased the components from either the Ballarat or Bendigo swap meetings.
c. The offender restored the vehicle using a body shell close to the original manufacturing date.
48 NOE – David Johnston
49 Purchase price minus midpoint of valuation.
50 Noel Wood deps 333
85. Trent WOOD who also previously owned the vehicle will state the car was a Holden LC Torana ‘S’ Coupe with a 138 CID engine. It was not a Torana GTRXU151.
86. Police located a valuation receipt at the offender’s house dated 17 October 2007 from Australian Muscle Car sales indicating that the offender wanted a valuation on this vehicle as a genuine Holden Torana GTRXU1. The valuation was supplied for Martin CUMBERLIDGE C/O M.K Superannuation Fund.52
87. On 22 April 2015 Victoria Police Forensic examiner Glen Dower completed an inspection of the vehicle. A summary of the alterations is contained in the table at the commencement of the opening.
88. The vehicle owned by MATHESON is a fabricated vehicle of the original Holden Torana GTR XU1 produced by Holden in 1971 bearing the following identifier: PSN: 82911CL186899 and Engine Number: CK50656. The body shell, engine and chassis number plate are a combination of components used to construct a vehicle to match the identity tags.
89. MATHESON again believed that he was purchasing a Torana GTR XU1. This was due to the price he paid, the way the vehicle visually looked both externally and internally and what Cumberlidge told him. Matheson again paid above market value for what was purported by Cumberlidge to be a high quality restored Torana GTR XU1.
90. After the police became involved Cumberldige called Matheson and offered to buy back the black and silver Torana’s.53
91. When formally interviewed on 29 October 2015 the offender answered no comment to all questions.54
51 Deps page 335
52Deps 635
53 This will be relied on as incriminating conduct
54 The no comment record of interview will not be lead or referred to at trial.
ANCILLARY MATTERS
Maximum penalties
The maximum penalty for obtain financial advantage by deception is 10 years maximum. The prosecution assert that the Continuing Criminal Enterprise Offender provisions apply to the 4 transactions pursuant to Part 2B of the Sentencing Act as each transaction qualifies as a relevant offence (over $50,000 each).
The deception charge is a rolled-up charge comprising of 4 separate offences as per the schedule. Section 6H provides that a
"continuing criminal enterprise offence" means an offence referred to in Schedule 1A The maximum penalty for make and use false document is 10 years imprisonment.
Prior convictions
The offender has no prior convictions.
Pre-sentence detention
The offender has not spent any time in custody.
Compensation
Compensation is sought in the amount of $560,000 which is an agreed amount.
Victim Impact statement
Has been served
6AAA and Delay
There has been delay in the finalisation of the case. The complexity of the matter led to a long investigative period prior to charge.
There was a four day contested committal hearing. Mr DeSantis’ matter resolved after the committal and he gave an undertaking to give evidence against the offender. He did not plead guilty to any offences where the offender Cumberlidge is also charged.
The case was listed for trial on 12 March 2019 (first listing offender on bail). The offender applied to adjourn the trial due to a prospective important defence expert witness having a serious medical condition and due to late filing of prosecution documents (draft filed 10 January 2019, amended opening filed 7 February 2019). The prosecution were ready to proceed however; consented to the adjournment given the defence expert’s serious illness.
The trial was listed to commence on 20 April 2020 but was vacated due to the COVID-19 pandemic. The case was listed for emergency case management and the offender sought a sentence indication.
The plea was not entered at the earliest opportunity but there is significant utility in the plea as the trial had a likely estimate of 4 weeks. The prosecution would have called approximately 25 witnesses. Those witnesses include a number of witnesses that now live interstate. Four prosecution experts will be called – two as the modifications to the vehicle, one as to value and a VicRoads expert. The prosecution propose that a jury ought view the vehicles which would necessitate to a trip to Preston. Within the 25 witnesses there is prospect that 4 or 5 might be agreed to be read in. If the matter does not resolve in addition to the 4 week trial estimate there is 2-3 days of pre-trial issues including 198B applications.
Forfeiture/Disposal orders
Will be filed for some of the items seized if the matter resolves to a plea. A list will be sent in due course.
464ZF(2)
Application will be filed.
PROCEEDINGS CHRONOLOGY
| 2 June 2017 | CUMBERLIDGE charged and hand up brief served by police |
| 30 June 2017 | Filing Hearing |
| 22 September 2017 | Committal Mention |
| 10 - 12 April 2018 | Committal Prosecution of co-offender Aldo DE SANTIS resolved to PG. 18 witnesses prepared to give evidence including Glen DOWER. Committed on 41 charges. |
| 13 April 2018 | Initial Directions Hearing |
| 13 July 2018 | Correspondence from the Crown to defence indicating an extension of time for filing opening is sought to 27 August 2018 and defence response to be served on 27 September 2018 |
| 16 July 2018 | Defence consent to Crown extension for further time to serve opening |
| 19 July 2018 | Notice of additional evidence – Statement of Aldo DE SANTIS served |
| 23 July 2018 | His Honour Judge DEAN advises registry that no mention is required to extend the document filing dates |
| 13 December 2018 | Plea opening and plea indictment for Aldo DE SANTIS served Defence advised that the depositions were not completed due to the original exhibits not being in the possession of the Crown and then a further system fault required the depositions to be redone. |
| 14 December 2018 | Copy of depositions forwarded to defence |
| 16 December 2018 | Defence seek a stage appropriate resolution from the Crown |
| 21 December 2018 | Letter from defence received by Crown re disclosure of further material and defence response timetable |
| 10 January 2019 | (Draft) Summary of Prosecution Opening for Trial served |
| 23 January 2019 | Trial Indictment (11 charges) and Notice of Incriminating Conduct served |
| 24 January 2019 | Final Directions Hearing |
| 31 January 2019 | Notice of Additional evidence – Statements of Glen Dower and Mark Matheson |
| 7 February 2019 | Amended trial indictments served (removing 1 charge) for the Torana prosecution. Summary of prosecution openings for Torana and Range Rover indictments served |
| 14 February 2019 | Second notice of incriminating conduct served Defence make first request to view cars |
| 18 February 2019 | Request for further and better particulars received from the defence. |
| 21 February 2019 | Further Final Directions Hearing |
| 25 February 2019 | Defence expert views car in company of informant. |
| 28 February 2019 | Defence response due (ordered by His Honour Judge Meredith) Defence advise the Crown that their expert Mr Cuthbert is unwell and an application to adjourn the trial will be made. |
| 12 March 2019 | Trial (20 days) listed |
| 7 February 2020 | Revised opening served (further and better particulars added to clarify how the Crown put the deceptions) |
| 13 February 2020 | Valuation statement of Shannon’s expert served |
| 16 February 2020 | Report of Gerry Bashford (confirming much of Glen Dower evidence) |
| 2 March 2020 | Directions hearing – defence response served. |
| 20 April 2020 | Trial listed (4 weeks) |
| 14 May 2020 | Emergency case management conference – parties seek a sentence indication |
| 5 June 2020 | Sentence indication hearing. Matter resolved save for agreement as to compensation. |
| 9 July 2020 | Plea hearing |
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