Director of Public Prosecutions v Dallwitz

[2015] VCC 833

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00968
15-00839
15-00834

DIRECTOR OF PUBLIC PROSECUTIONS

v

JORDAN DALLWITZ

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JUDGE:	HER HONOUR JUDGE WILMOTH
WHERE HELD:	Melbourne
DATE OF HEARING:	12, 29  May, 2015
DATE OF SENTENCE:	19 June 2015
CASE MAY BE CITED AS:	DPP v Dallwitz
MEDIUM NEUTRAL CITATION:	[2015] VCC 833

REASONS FOR SENTENCE
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Subject: Sentence – criminal law
Catchwords: pleaded guilty to  numerous charges of  obtaining/attempting to obtain a financial advantage/property by deception, 2 charges attempting to pervert the course of justice by providing to court  letters purporting to be from psychiatrist; learned behaviour from early age having assisted father in dubious accounting practices and providing false documents;  lived beyond means, grandiose life style, might have gambling disorder, remorse;  compensation orders made;  specific and  general deterrence necessary; crushing sentence avoided.

Sentence:  6 years imprisonment with 4 years before being eligible for parole.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Pickering	OPP
For the Accused	Ms E. Clarke	Stary & Associates

HER HONOUR: 

1Jordan Dallwitz, you have pleaded guilty to charges on three indictments and for the sake of clarity, I shall list them as follows.  The first indictment is number C1409484 (CR-14-00968) comprising ten charges of obtaining a financial advantage by deception, five charges of attempting to do so and eight charges of obtaining property by deception.  An extensive summary of prosecution opening was tendered, and a copy will be appended to the sentencing remarks.  The second indictment, number F10582754 (CR-15-00834) deals with two charges of obtaining a financial advantage by deception.  The third indictment number F11676325 (CR-15-00839) deals with two charges of attempting to pervert the course of justice.

2These offences were committed when you were on bail for the other matters, and consequently you were charged with the summary offences of having committed those offences whilst on bail.  You have also pleaded guilty to those charges.  As for the first indictment, charge 1 occurred in June 2013, a few months after you had completed a suspended sentence imposed in the Magistrates' Court for similar offending.  On 7 June 2013, you purchased New Zealand currency to the value of $3,357.92 which, in Australian dollars was $2,740 from a currency trader, using the Westpac credit card details of Francis Lam.

3She had been a student at a coaching institute, where you had been employed.  You had formally been a student there, as had been your wife, Monique Gebbing, and her father.  As part of your employment, you had access to student files, which included credit card records.  On the same day, you also used Ms Lam's credit card details to purchase airline tickets for the sum of $2,740.  When this was discovered, Ms Lam cancelled her credit card.  That is charge 2.  A few days later, you used the same means to buy airline tickets using the credit card details of Beverley Unitt, a former student at the coaching college.  That is charge 3. 

4In June 2013, you advertised a motor vehicle for sale which you had purchased with finance from Macquarie Leasing.   Glenn De Silva inspected the car and found that it was subject to finance.  When he questioned you about this, you told him this was a mistake and showed him a letter purporting to be from Macquarie, stating that the car was not under finance.  This letter was false, but after receiving it, Mr De Silva paid $28,000 to you.  In August, he was contacted by a repossession agent working for Macquarie Leasing and was told that the letter was fraudulent and that he had to return the car to Macquarie.

5Mr De Silva contacted you, and you provided him with further letters purporting to show payments made to Macquarie.  The car was repossessed and despite his attempts at recovering the money from you, he has received none.  That is charge 4.  You continued to offend using the credit card details of your wife, your father-in-law and of 16 persons who had been students at the coaching college, or had been involved in it in some way, to set up trading accounts, withdraw cash and to buy various goods and services. 

6Charges numbered five to 18 were also committed in this way, and I will come to those details shortly.  You also set up four different foreign exchange trading accounts during the offending period, using the credit card details of others, an exercise which involved planning and expertise and drew on the profits produced, but lost money as well.  This would seem to be a form of gambling using that planning and expertise, unlike the random aspects of other forms of gambling.  On other occasions, you attempted to use credit card details in the various ways described but were unsuccessful.

7Charge 5 involved purchasing a large number of items valued at over $3,000 using the credit card details of Matthew Morris.  You used his details again to hire a jumping castle at a cost of $235 for use at the child care centre attended by your children, after having used false credit card details to attempt to pay outstanding fees.  That is charge 6.  That charge, and charge five occurred in November 2013. 

8Charge 7 occurred in December, when you opened two accounts in the name of your father-in-law and used the credit card details of Mr Morris and those of two other former students of the coaching college, Ms De Franceschi and Ms Appleby to fund the accounts.  You then made withdrawals from the accounts over three weeks of sums totalling $123,305.  Over the following few weeks you used the credit card details of Morris and Appleby and those of three other students; Ms Clarke, Ms Tona and Mr Himing, to pay Eastlink accounts totalling $348.79.  That is charge 8.

9Charge 9 was a series of unsuccessful attempts totalling $23,830 to use the credit cards of a number of former students during December and charge 10 was the use of Ms Popper's credit card details to make a purchase of supplies in the sum of $147.89.  Charge 11 concerns various transactions using the credit card details of a former student Annette Twine to avoid paying debts to third parties.  You have purchased furniture from Casey Auctions in the sum of $3,464.  A deposit of $1,000 was paid by your wife using her credit card, but when you attempted to pay the balance the next day, the three credit cards you offered were all declined and then you used a fourth successfully.  The transactions were disputed leading to a police investigation, following which the furniture was recovered from your house and returned to the auction house.

10Charge 12 involved the setting up of a foreign trading account in September 2013, using credit cards in your own name but falsified with the details of the credit cards of two former students, Ms Reading and Mr Westcon.  In December you made withdrawals totalling $12,250 and attempted unsuccessfully to withdraw a further $5,000. 

11Also in September you repeated this process using the credit card details of Mr Himing, Ms Reading and Mr Westcon and tried to withdraw a total of $10,350 in three transactions and this is charge 13. 

12Charge 14 involved your use of credit card details of Ms Appleby to buy lottery tickets in December in the sum of $6,949.80.

13Charge 15 comprises nine purchases from ITunes in December and January totalling $105.99, using the credit card details of Ms Clarke.

14Around the same time, you used Ms Hutton's credit card details to purchase items worth $873.64 and to pay your mother-in-law's car registration.  This is charge 16. 

15Early in 2014, you set up an account in your father-in-law's name and funded it using the credit card details of seven former students of the coaching college, then attempted to withdraw funds totalling $16,500.  That is charge 17.

16A few days later, you set up another account and funded it using the credit card details of four former students and then withdrew sums totalling $11,005.  That is charge 18. 

17Charge 19 covers a large number of unsuccessful attempts over ten days to withdraw a total of $11,978 from the same account.  Again, using the credit card details of seven former students. 

18Charges 20, 21 and 22 are transactions that all occurred over two days in January.  Charge 20 is an unsuccessful attempt to pay an Eastlink account of $60 using the credit card details of a student, Ms Reid. 

19Charge 21 deals with the purchase of a printed for $229.000 using the credit card details of Mr Himing. 

20Charge 22 involved again the funding of an account using a student's credit card details and withdrawals totalling $1,550. 

21The final charge, charge 23, occurred on 20 January when you used credit card details of Ms Tona to make a purchase of $172. 

22You were arrested on 4 February 2014 and interviewed.  You made admissions in respect of the charges involving former students of the college.  At that time, you were 25, and you are now aged 27.  The circumstances of the plea made on your behalf are very unusual.  Ms O'Brien of counsel appeared for you on 25 February this year before His Honour Judge Dean.  She outlined your background extensively and thoroughly but His Honour adjourned the matter for a report to be obtained from a forensic psychiatrist.  Before the return date His Honour became aware that two letters, purported to have been written by your treating psychiatrist to the court in support of an adjournment application had been fraudulently written by you. 

23His Honour recused himself from the case and defence counsel returned the brief.  The letters have given rise to the two charges of attempting to pervert the course of justice, charges 1 and 2 on indictment numbered F11676325 and to the related summary charge of committing an indictable offence while on bail.  The matter was listed for hearing on 12 May, and on that day I heard from the learned prosecutor that there had been further developments.  These were charges arising from your conduct in June 2014 and were to be the subject of a first mention in the Magistrates' Court in a few days' time and the charges of perverting the course of justice and attempting to do so were ready for filing with the court.

24These two sets of charges needed to be taken through the necessary steps to bring them before me for hearing together with the original indictable charge, a course with which you agreed.  Accordingly, the matter was adjourned until 29 May for further hearing.  On that day, you pleaded guilty to the further charges and Ms Casey, who appeared on your behalf made a further plea. 

25The summary in respect of the further deception charges is as follows.  After your arrest on 4 February 2014, you were remanded in custody until 28 May, and then released on bail to live with your aunt Karen Jones.

26The next day you advised the ANZ Bank that your visa card had been stolen and you were supplied with the replacement.  You then made four deposits totalling $4,000 from your credit card accounts, via the internet, into a foreign exchange trading account, Axicorp, which you had established.  That gives rise to the related summary offence.

27You then used that amount for foreign exchange dealings.  A few days later you advised the bank that the Visa card had again been stolen and disputed the transactions whereby money had been deposited in the Axicorp account.  As a result, $5,000 was debited to Axicorp and the money was re-credited to your ANZ account.  That is charge 1 on indictment, number F10582754.

28On 18 June 2014, you used the internet to set up another foreign exchange account which gives rise to the related summary offence.  You falsely stated that you were a "consulting and business analyst", with an annual income of $100,000 to $250,000.  On the same day, you deposited $2000 with Forex Capital and carried out foreign exchange trades, losing the money deposited.  A few days later, you disputed the transaction with the ANZ Bank and a result the $2,000 was debited to Forex Capital by ANZ and the money was re-credited to your bank account.  That is charge 2. 

29Forex Capital contacted you numerous times and you denied the transactions claiming you would contact ANZ for it to be resolved.  You were arrested on 5 February 2015, and you denied all the allegations.  Again, there is a related charge of committing an indictable offence while on bail.

30At the plea hearing, I heard evidence from Ms Jones who took you into her home where she lives with her husband and children as part of your bail conditions from your release in May 2014 until you were remanded again in February.  Unfortunately you exploited her hospitality and concern for you, and committed the further offences. 

31She described her support for you and the assistance she gave you in examining your motives for offending.  Ms Jones and her husband continued to support you.  They have visited you in prison regularly and Ms Jones said you were remorseful and you understand that you have jeopardised your relationship with your children.  She considers you now have insight into your offending and what you lack now is the chance to put it into practice.  She was realistic in agreeing that you knew what you were doing was wrong and you did it anyway and that remorse has come late.

32These offences are very serious examples of deception, and a large amount of money was lost, approximately $211,000.  Many of them are rolled up charges involving multiple transactions or attempted transactions.  It is particularly serious that you continued to offend over a long period of time and did so again while on bail.  The creation of the false letters shows a blatant disregard for the system of justice, jeopardising the reliance on documents by the courts and the legal profession.  That is a very serious matter, an attack on the system of trust which is of great importance in expediting justice.  All your offending deserves severe punishment as a powerful message of deterrence to others and to deter you as well from offending again. 

33Your eventual rehabilitation will be subject to your own resolve to return to fulltime work one day, with a reformed attitude.  You are intelligent and capable and it is a great pity that your talents have been dissipated in such dishonest activity. 

34You have a history of similar offending in the past in that you were sentenced in the Magistrates' Court on 21 February 2011 to 12 months' imprisonment, wholly suspended for 24 months following your conviction in respect of a large number of fraud charges.  That sentence was not sufficient deterrence for you, and you offended  again soon after completing the sentence. 

35It now seems that your recent experience of the structure imposed by prison life has been salutary for you and may be what is required.  You can no longer spend money you do not have and your very modest prison earnings must be stretched to pay for the daily phone calls to your wife and children, upon which I am told you rely heavily.  Efforts by others to understand the causes of your offending lead to your childhood experiences of learning deceptive practices from your father.  He went to prison for deception and you acted accordingly, undeterred by that consequence.

36Although you were referred to a psychiatrist recently, you failed to attend all appointments and take medication in a completely misguided attempt to facilitate the appearance of a mental illness which you thought would look good for the court.  You fell into debt through the previous court case and by trying to set up a business.  It was to try and repay these debts that you began the deceptions, but that does not explain the impulsive need to buy expensive luxury items such as the jet ski and a car, to take your family on expensive holidays and to gamble at Crown Casino. 

37I turn now to your personal background, to which I have already made brief reference, to say that you were aged 25 when you committed these offences and you recently turned 27.  When you were two years old, the police raided your home and your father was charged with deception.  Three years later, he went to gaol for 18 months, and as a five year old you visited him there regularly.  The point was made by your former counsel, Ms O'Brien, in the original plea hearing that your own son is now about that age.  When your father was released, he started a security installation business, which went well, but as you grew older and began to help your father, you became aware that some of his accounting practices were dubious. 

38Because of your computer skills, you began to help your father create false documents and you became adept at it.  In this manner, your father obtained such things as credit and car loans that the family could not afford but without your mother's knowledge.  At the age of 18, you became the sole director of the business when your father was forced into bankruptcy following legal action taken by the taxation office.  The business had huge debts, and these spiralled even when the income of the business improved.

39The creation of further false documents masked the true situation as funds were raised to pay creditors.  Meanwhile, you commenced a relationship with Ms Gebbing and the two children were born, now aged five and three.  You continued to live beyond your means, spending money in a grandiose fashion and hiding the truth from Ms Gebbing.  Although this behaviour might suggest that you suffer from a mental health disorder, there is no evidence of that despite the fact that various types of anti-anxiety medication have been prescribed for you in the recent past.  It appears that you were non-compliant in that regard, but since your incarceration the medication has been reinstated and you are experiencing the benefit of it. 

40The forensic psychiatrist who assessed you recently diagnosed no disorder, as I have said, but considered that you may satisfy the criteria for a gambling disorder because of the persistent and recurrent problematic gambling behaviour you reported.  He said you would benefit from psychological treatment to explore the distortions leading to the offending behaviour. 

41From an early age you learned from your father how to cheat people and steal money.  When you put that into practice, you failed to see how wrong it was, determined as you were to have expensive material goods and live a life as a wealthy person beyond your means and using further falsehoods to try and dig yourself out, all the while hiding it from your partner.  You even resorted to members of your partner's family to pay your debts.

42This may suggest some form of manic disposition but that has not been substantiated.  You have failed in the past to learn from your mistakes and your chances of rehabilitation must be considered guarded.  Other than the possible gambling disorder, there is no disorder to treat, despite the fact that the sedative medication appears to be beneficial.  Whether the narcissistic or grandiose thinking which might be behind your offending is treatable or not is something about which there is no evidence.

43A period of parole for which you might eventually become eligible would likely assist with your rehabilitation, the chief motivation being your return to your family and the resumed relationship with your children.  You have written to the court expressing your remorse and the intention to change when you are released.  That is important, but specific deterrence must be a significant aspect of your sentence.

44In cases of serious crime such as this, general deterrence is also of great importance.  People who might be tempted to act as you did must understand that they will be severely punished and that the courts will firmly denounce such behaviour by imposing severe sentences where appropriate.

45In sentencing you for these matters, I must attempt to avoid a crushing sentence and apply some reduction to the long prison term that is warranted by the course of conduct you engaged in.  To this end, I have moderated the extent of cumulation of the individual sentences.  You are entitled to a discount on your sentence for having pleaded guilty at an early stage.  If the matter had proceeded as a contested case, a trial would have been quite extensive involving many witnesses and taking up a lot of court time.  For avoiding the expense and inconvenience of a trial, you are entitled to that discount and I also accept it as an indication of remorse.

46You are sentenced to a total effective sentence of six years and you must serve four years before being eligible for parole. 

47The individual sentences of imprisonment are as follows: 

48On the first indictment, C1409484, three years for each of Charges 4, 7, 12, 1 4 and 18.  Two years for each of Charges 1, 5, 9, 11, 13, 17, 19 and 22.  Twelve months for each of Charge 2 and 3.  Six months for each of Charges 6, 8, 10, 15, 16, 21 and 23.  Three months for Charge 20.

49On the second indictment, F10582754, two years for each charge. 

50On the third indictment, F11676325,12 months for each charge. 

51For each of the summary offences, one month to be served concurrently with all other charges.

52The sentence for Charge 7 is the base sentence for the purposes of cumulation and I order the following in relation to cumulation.  As to the charges on the first indictment, one month of each of the sentences for Charges 1, 3, 6 and 22;  two months of each of the sentences for Charges 5, 13, 17 and 19;  three months of each of the sentences for Charges 4, 9, 11, 14 and 18; four months of the sentence for Charge 12 be served in cumulation upon the base sentence.

53As to the charges on the second indictment, one month of each of the sentences for those two charges is to be served cumulatively upon the base sentence. 

54As to the third indictment, three months of the sentence for the first of those charges is to be served cumulatively upon the base sentence.

55I have apportioned cumulation on the basis of the number of transactions involved or attempted and the monetary value involved.  In order to achieve proportionality and to avoid the sentence being a crushing one, I have not ordered cumulation in respect of every charge, by taking into account charges involving lower amounts of money or where there was a degree of similarity as between offences, such as Charges 1 and 2 on the second indictment and Charges 1 and 2 on the third indictment.  These orders result in a total effective sentence of six years.  I order that you serve a minimum of four years before being eligible for parole.

56If you had pleaded not guilty to these charges, I would have sentenced you to eight years' imprisonment with a non-parole period of six years.  You have been in custody for 229 days not including today and that time is to be reckoned as already served.  I shall cause that to be noted on the court record.

57The prosecution seeks a number of ancillary orders and through your counsel, you do not oppose them.  Therefore, I make orders that you pay compensation to Vantage FX in the sum of $123,305.  To 49 Fine Food in the sum of $776.  To Glenn DeSilva in the sum of $28,000.  To International Capital Markets in the sum of $12,2500.  To CMC Markets in the sum of $11,005.

58I order that items listed in the schedule be forfeited. 

59I also order, pursuant to s.464ZF of the Crimes Act that you provide a forensic sample of saliva.  I have to advise you that the police have the power to use reasonable force to obtain that sample, but I trust that will not be necessary.

60Are there any other matters?

61MR PICKERING:  No, Your Honour.

62MS CLARKE:  No, Your Honour.

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