Director of Public Prosecutions v Dalton

[2014] VCC 2112

IN THE COUNTY COURT OF VICTORIA Revised
 Unrestricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR-13-02068

Indictment No. C12960985.1

DIRECTOR OF PUBLIC PROSECUTIONS

v

Allan Rae  DALTON

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JUDGE:	HIS HONOUR JUDGE TINNEY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 December 2014.
DATE OF SENTENCE:	9 December 2014
CASE MAY BE CITED AS:	DPP v  Dalton
MEDIUM NEUTRAL CITATION:	[2014] VCC 2112

REASONS FOR SENTENCE

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Catchwords: Theft. Use False document

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr Sharpley	Office of Public Prosecutions
For the Accused	Mr  Johnston	Emma Turnbull Lawyers

HIS HONOUR:

1        Allan Rae Dalton you have pleaded guilty to one charge of theft and two charges of using a false document. Each offence carries a 10 year maximum term of imprisonment.

You have admitted a relevant prior criminal history. You also have some relevant subsequent criminal conduct.

Facts

2        The details of your offending are set out in Exhibit A, the written summary of prosecution opening dated 22^nd August 2014. Your counsel Mr Johnston told me that this was an agreed statement. The only issue was in relation to paragraph 20 which seemingly asserted the lack of any payments made. Mr Johnston argued that you had made some interest payments for some period of time and took me at one stage to some of the bank records as well as the additional evidence statement of Mr Goldstein. Your counsel suggested that the inference of some payments having been made could be drawn from the passage of time between the mortgage and the default action in relation to substantial arrears of interest in 2007. I was told you had not worked from the end of 2005 and it is apparent that the account which housed the ill-gotten funds was as good as empty by mid to late 2005. I am however prepared to accept your counsel’s submissions as to the fact of some interest repayments being made by you prior to the discovery of the theft. There can’t have been that many. I note your consent to the compensation order.  The summary was otherwise agreed and accordingly I incorporate it into these reasons for sentence. That summary has been marked as an exhibit and will be available for inspection on the Court file. For that reason, I see no need to fully restate the facts. Very briefly though, you acted very dishonestly towards your partner of over a decade Ms Heather Oliver. That is conceded. You became a couple in about 1996. Sometime in the early 2000’s, the planned redevelopment of adjacent properties, one owned by each of you in Auburn Road Hawthorn, ran into financial difficulties leading to the financier Latrobe Finances moving in and taking possession of each property. Your de facto Ms Oliver also owned outright a property in Mt Egerton and to shield that property from the potential of being claimed by the financier which you and others said was possible, the decision was made to set up a company structure. Abba Dabba Pty Ltd was set up. It was intended that the property would be transferred into that company’s name and as a further protection, a mortgage was taken out. That is to say funds were advanced to the company on the otherwise unencumbered property. Ms Oliver trusted you. She should not have. You had registered the company name installing a director other than the one Ms Oliver had directed you to install.

3       You signed mortgage documents on behalf of the company purporting to be the sole director and secretary. You were neither. I make clear that is just before me as context. You are not to be sentenced for any criminal conduct other than that the subject of the three charges on the filed over indictment. A firm of solicitors was facilitating the mortgage and at your direction the funds advanced by way of bank cheque was made payable to Down to Earth Developments Pty Ltd. The following day you went and opened a Commonwealth Bank account in that same name and deposited the $73,807 into that account. You had sole authority to access that account. You had no business deposited the money in that way and you knew it. You knew you were acting dishonestly. Ms Oliver had no idea you were obtaining any access to the funds in this way or doing what you were doing. As far as she was concerned the mortgage was a device to protect her and one where the full amount borrowed was to remain in trust with the interest going towards the repayments. Those funds were however used by you as your own funds though I accept that some day to day grocery purchases may have benefited her as well. You were after all a couple. You sought to cover up your dishonest appropriation by the use of two false documents purporting to be from a firm of solicitors assuring her of the existence of the sums held in trust earning a healthy interest. Those letters assured Ms Oliver of the existence of the funds in trust and the fact of the mortgage payments being made regularly from the funds in trust. There were of course no sums held in trust. You were just spending them without her having any knowledge at all. The second letter provided advice purportedly from a lawyer suggesting a consideration of the arrangement in about a year’s time, subject to Latrobe not having  “done anything”. So a pretty skilled letter raising the potential spectre of the financial institution and suggesting maintaining the satisfactory status quo for another year from June 2006. A status quo where the interest was being applied to cover the mortgage. A status quo that you knew was totally no existent. The money had gone by then.

Victim Impact

Your victim Ms Oliver has made a victim impact statement. So has her son who has also been caught up in this debacle of your making. Each impact statement was read out aloud and I have read them again overnight. I see no need to restate the impact in full. Ms Oliver is 72 years old. She has been significantly affected by your crimes. That is obvious enough. Now true it is she came to the relationship with a house in Auburn Road and the outright ownership of the Mt Egerton property. She says she is left with nothing. Now I hope I made clear enough on the plea that the loss of her Auburn Road property is only to be put down to a failed business venture with you, not to any criminal conduct by you. You after all lost the other Auburn Road property. It was a spectacular failure but that is what it was, for you both. A failure. I do not proceed in any way on the basis of that failed transaction having any dishonesty or criminality at all. It is before me only as to the context as to what then happened in relation to the Mt Egerton property. However her predicament in relation to the Mt Egerton property can be put down to your dishonest conduct. There was a refinancing and that is where her son came in. It has been a financial catastrophe for her and her son. A stressful one. Ms Oliver has feelings of anger hurt and fear for her wellbeing. The man she was living with committed these acts and the Sherriff came knocking totally out of the blue. Her financial security has been significantly affected by your criminal conduct. She is not living the life she imagined she would be living at her time of life and she has had to put off any plans of retirement. She sees her future as being quite bleak due to your dishonesty in her financial affairs. As I have said, her son was caught up in the debacle rising to the occasion to stop the Sherriff’s repossession of the house which would have left his own mother homeless. Now I do not act on the suggestion of $120,000 being stolen or any fraudulent mortgage. I am only sentencing you for the theft and the use of the false documents. I take into account the significant impact of your crimes.

Submissions in Mitigation

4        Mr Johnston, who appeared for you, raised a number of matters in mitigation in an excellent plea. They were:

·    Your plea of guilty;

·    The delay since this offending and the staleness of the crime;

·    The application of totality of sentence given the relationship of the three offences and the existence of the other sentences imposed upon you in September for other subsequently committed dishonesty offences;

·    He argued that you had good or at least reasonable prospects of rehabilitation;

·    He argued that the offending whilst serious was unsophisticated with all roads leading back to you;

·    He conceded the inevitability of an immediate term of imprisonment but argued that there should be a high degree of concurrency as between sentences imposed in this case as well as a very high degree of concurrency upon your existing term.

Prosecution

The prosecution argued that there should be some cumulation in relation to the sentences imposed on the indictment charges as well a significant level of cumulation upon the existing sentence.

Background

Your counsel placed before me oral submissions as to your personal background. There is also reference to your background in Mr Johnston’s filed outline exhibit 1 and in my previous sentencing remarks exhibit 2. I see no need to go through your personal background in these reasons.  I have no reason not to accept the personal family background placed before me. You are now 60 years of age, born in January 1954. I am told that up until your heart attack in 2005, you had a pretty solid employment record. That may well be so but you had already by then accumulated a number of criminal appearances and had of course well and truly committed the theft for which I must pass sentence.

I take into account your personal background as far as I am permitted to.  There is, however, nothing in it reducing at all your culpability for this offending. You come from a decent family and have had a relatively privileged background with schooling at an renowned private school. You are intelligent. You have no addiction to drugs or alcohol or gambling.  Given the nature and extent of your dishonesty conduct over the years, it is inescapable that you for whatever reason are prepared to act dishonestly when it suits you, and it does often enough. I accept that there were financial difficulties arising out of the failure of the Auburn Road development as the context to the offending before me but it does not really greatly reduce your culpability. I accept that you have had some poor health in 2005 when you had a heart attack and you have type 2 diabetes. Medication is taken for each condition. Neither condition is relied upon as in any way increasing your custodial burden. The suggestion of your being unemployed since the 2005 heart attack is an unusual proposition given the your involvement in the joint venture which was the context of the 2011 offences for which I sentenced you in September.

Criminal History

You have admitted a prior criminal history.  The appearances in the criminal history document are not recent.  As I said on the last occasion, they seemingly occurred against the context of either family and/or financial mishap or strain.  Given their age, they were and are not greatly relevant to my task.  They are still relevant. There is a past history of dishonesty offending on a number of occasions in this State and in Queensland.  You have served terms of immediate imprisonment. All of that past offending had been as a mature adult in your 30’s or approaching your 40’s. However it is not just your prior criminal history. You have also been dealt with more recently for dishonesty offending. These are subsequent matters. You received a 78 day sentence in early May 2012 for going equipped to steal and driving offences occurring back in 2007.  Later in May 2012, you received a six month term with three months to serve, three months held in suspense for a number of dishonesty offences, including obtain property by deception and possession of property suspected of being the proceeds of crime.  I had been told by Mr Skehan on the last plea that the deception related to selling a car part and there was also a cheque offence.  That various offending occurred in either 2008 or 2009. Of course you also have the matters for which I sentenced you in September of this year for the highly criminal conduct occurring in 2011 where in a significant breach of trust you took cheques payable to a firm of solicitors, created a bogus business name, then a bank account in a similarly styled name and banked the $144,000. See exhibit 2, sentencing reasons.

Guilty Plea

I turn then to the matters raised by your counsel. You have pleaded guilty. I take that into account. As late as the plea is, it is still of value and spared witnesses from attending this Court. The community has been spared the cost and effort associated with the actual running of the trial. A committal was run. Witnesses including Ms Oliver were called and cross examined. That was your right. Your plea is though a very late one offered on the Friday before the start of the trial and though there have been some charges withdrawn and some reshaping of the main charge, the fact is you had always asserted a lack of dishonesty and asserted Ms Oliver’s knowledge of what you were doing.  You denied creation or use of the false documents. Ultimately you concede by your plea of guilty to these three charges that which you had not to that point conceded: Your dishonest conduct. Your act of theft. Your use of the false documents.  Anyway I still must reward you for your plea. It must be rewarded with a discount in sentence but it is a very late plea and I am required to take into account the stage of the plea.

Remorse

Your counsel specifically disavowed any suggestion of remorse and nor do I find any. I see no evidence of any remorse for your crimes. I hasten to add that is not a matter in aggravation.  

Rehabilitation

I said in September 2014 when sentencing you then that I thought you had some prospects of rehabilitation. I spoke then of your committing as a mature man those serious crimes in 2011 for which I was then sentencing you. I had learnt at that time of a number of prior and subsequent criminal matters but had no ability to factor into my assessment these crimes for which I must now pass sentence. These serious crimes committed in the years 2004, 2005 and 2006. I knew nothing of the detail as was entirely appropriate. You were after all awaiting trial. That is no longer the position. The picture that is developing is of a mature and intelligent man who has acted dishonestly in business and on a personal level. Mr Johnston initially in oral submissions argued that you had reasonably good prospects. I raised his unqualified use of the adjective “good” in the written outline as he was seemingly moving away slightly from that suggestion in the oral submissions. Ultimately he submitted that you had some prosects of rehabilitation. I certainly do not believe you have good prospects of rehabilitation. Neither age, maturity, Court sentences, prison nor poor health have impeded your commission of serious dishonesty offences over 20 years. I am prepared to find that you have some prospects of rehabilitation.

Delay

These crimes occurred in 2004, 2005 and 2006. The latter two crimes of using the false documents were committed to avoid detection of the theft and to an extent explain why the theft went undetected for as long as it did. Ms Oliver made statements in 2008 and you were not interviewed until March 2012.  The informant said at the committal that your whereabouts were unknown.  Upon interview you were not frank. It was your right not to be.  No doubt if you had been frank or told something even resembling the truth, the matter could have been swiftly investigated and finalised years ago. You were not charged for 6 months after the interview date and then there was a large gap between the summons issue date and the filing hearing. I am obviously sentencing you very many years after the event and with those significant delays even after your alleged crimes came to light and then delays even after you were charged. Mr Johnston relied upon the staleness of the crime. I accept they are very old and that there is a staleness to these crimes. I do have regard to the principles associated with sentencing for stale crimes to which I was taken. There can be a considerable measure of understanding and flexibility of approach and what might otherwise be viewed as undue leniency can on occasion be extended courtesy of the delay between offence and sentence. Each case will depend on its own facts.  On the seriousness of the crime, the length of delay, the reasons for delay, the response of the offender in the meantime and a host of other factors including considerations of fairness. Unfortunately since committing these offences in 2004, 2005 and 2006, you have continued to commit a number of other dishonesty offences. As to the delay, Mr Johnston relied upon the anxiety caused by the delay spanning the period September 2012 when the charges were laid and filing hearing in June 2013 when the decision had been made by the Prosecution to proceed to a committal stream. It was that 9 month period which was relied upon in the sense of uncertainty created in your mind. Well I will have regard to that in the way suggested but it is of very little moment here. It is of little mitigatory benefit and as your counsel made plain it was impossible to point to any process of rehabilitation here. I make plain I do not lose sight of the age of the offending for which I must pass sentence.

Offence Gravity

I must pay regard to the nature and gravity of the offences. Your counsel conceded the seriousness of the theft offence and the protracted nature of the dishonesty given the use of the two false documents to avoid detection of the theft. In the course of the argument I described it as a pretty miserable crime. Your counsel did not quibble with that description. In his written submissions he raised issues of your valuable contribution to the property and relied upon your assertions in the interview. I told him I would not accept such assertions from you. I have seen you give evidence on oath and you had a very relaxed attitude to that obligation. Your interview was certainly not truthful. Ms Oliver conceded a good deal less than is suggested. You had done some work together at the property. In any event , this was not raised as lessening your dishonesty in the transaction at hand. Though the theft in form relates to property belonging to the company, in reality the offence was practised upon your intimate partner, Ms Oliver and with significant and lasting impact upon her. As you were living with her, and as she thought you had protected her financial affairs and were protecting her interests, you had in fact stolen the funds as you swung the money into a freshly created bank account and started using it yourself. Obviously the quantum of a theft is a highly relevant consideration and this is relatively speaking a quite small quantum to be dealt with in this Court but it not the only indicia of seriousness. The relationship between offender and victim is relevant. The element of trust. The extent of planning. There is nothing spontaneous about this theft. It required you to create the bank account to receive the stolen funds. You stole them as soon as was possible. The false document offences were also very calculated. A false document presumably sent to her, your defacto wife, purporting to be from a solicitor assuring her of the safety of the funds in trust whilst you knew those very funds were in your control and being expended. Disgraceful conduct really. I accept that the offending was relatively unsophisticated and that all roads did lead back to you. It didn’t stop you running it as a contest to the very door of the Court. She was unsophisticated and naive, guided by you and did not take much fooling as she trusted you. I sentence on the basis referred to on page 4 of your counsel’s outline of your having the statutory presumption as to intention to permanently deprive under section 73 [12] by virtue of your treatment of the property as your own. Still it is a serious theft given the setting and the relationship and the steps taken by further criminal conduct with the false documents to avoid detection. The prospect of all roads leading back to you seemingly does not to deter your dishonest offending and exactly that submission was raised in relation to the serious offending occurring in 2011 for which you are already undergoing sentence. You are just dishonest. I don’t know why. You act dishonestly and are arrogant to a degree. You expect to be able to talk your way or bluff or bluster or lie your way out of it, always resisting the claim of dishonesty where ‘blind Freddy’ would see it in an instant. Interestingly Ms Oliver has not been paid back by you the amounts outstanding. You received $144,000 of investor’s money in 2011. They didn’t get it back from you and none of it was applied to Ms Oliver by you. Ms Oliver is owed $73,807 by you.  This theft was a serious crime, targeting your own intimate partner by a man well versed in dishonest conduct and with a dishonest pedigree stretching forward to this day.

Totality

I must pay regard to totality of sentence in considering the extent of cumulation to be imposed as between the individual sentences imposed by this court. There is obviously a relationship between the second and third charge and the charge of theft, with the latter two offences being committed to avoid the detection of the theft. Still they are separate crimes committed at a different time. Quite deliberate. Quite calculated with a false document being employed to give your own partner complete comfort. Mr Johnston conceded the need for at least some cumulation given the different offences, differing elements, the timing and the nature of the criminal conduct.

I also have to consider the sentence you are currently undertaking and the extent to which there is any extension of that sentence and again the principle of totality is very important in that consideration. It is important in making judgments as to the extent of cumulation. It is also important when fixing a new single non parole period. When fixing a new single non parole period I am to have regard to the total effective sentence being the combination of all sentences  which you are required to serve (and have been serving) including that which is about to be imposed. I must have regard to totality of the offending. The new single non parole period is fixed in relation to that total or global sentence. I have engaged in a last look at the overall effect of the sentences I will shortly pronounce in endeavouring to avoid the imposition of a sentence that might be crushing upon you, and to ensure that the overall effect is consistent with your overall criminality. I sentence consistent with the observations made by Redlich, JA  in Azzopardi, the case to which I was referred.

Sentencing considerations

5        I have taken into account all of the submissions made by your counsel. I am not sure you actually appreciate the extent of the work that went into the excellent written submissions filed by your counsel, excellence which was mirrored in the quality of his oral submissions on your behalf.

6        As I told you in September I tell you again now, there are a variety of matters which must be taken into account by the court.  I must take into account the maximum penalty.  Here as you know it is ten years in each case.  I must pay regard to current sentencing practices. I do but each case falls to be decided on its own facts. The crime of theft for instance can cover a multitude of acts and conduct. Each crime is different. So too every offender so there is a limit to the usefulness of statistical material or even consideration of other sentences imposed in other cases as your counsel readily conceded. I must consider also your prospects of rehabilitation.  As I have announced, I am prepared to find that you have some prospects of rehabilitation.

7       You stand to be punished for your crimes justly and proportionately.  This court must denounce your conduct. Your conduct in committing the theft was seriously wrong. Ms Oliver trusted you. It was a pretty miserable and low act to do what you did and has left her very much in the lurch even a decade later. Your conduct in hiding your dishonest conduct by the use of false documents was quite calculated and criminal conduct.

8       Protection of the community from you is a matter I must pay some regard to given the nature of your crimes and the criminal chronology. That is so despite the passage of time.

9       Despite the age of the crimes, an examination of your past, current and subsequent matters paints a picture of a person who acts dishonestly across a number of domains. Business and personal. So despite the age of the crimes I must sentence you for, I still believe that specific deterrence has some importance. You must be dissuaded from committing dishonest crimes. Courts have tried in the past with very limited success. The message is not getting through to you. This court must also seek to deter others who might be minded to commit this type of offence.  That purpose, known as general deterrence, is still a relevant purpose of sentencing though I judge it to be of lesser importance given the passage of time.  

Sentence

Sending a person to prison is always a matter of last resort.  Your counsel concedes the inevitability of such an outcome given the seriousness of your crimes.  

Compensation

Application is made for compensation in favour of Ms Oliver. The order is not opposed. I have signed it. 

Can you stand up, please.

Indictment

10      On Charge 1, theft I convict and sentence you to 18 months' imprisonment. That is the base sentence;

11      On Charge 2, I convict and sentence you to 9 months' imprisonment;

12    On Charge 3, I convict and sentence you to 9 months' imprisonment.

Cumulation

I direct that 3 months of the sentence imposed on Charge 2 and 3 months of the sentence imposed on Charge 3 is to be served cumulatively upon the base sentence and upon each other.  These orders produce a total effective sentence of 24 months imprisonment. I direct that 12 months of that sentence be served cumulatively upon the sentence you are undergoing.

NPP

I fix a new single non parole period pursuant to section 14 of the Sentencing Act. This supersedes the previous non parole period I ordered. I direct that you serve a period of 19 months' imprisonment before becoming eligible for release on parole. That non parole period commences today.

Section 18

There is in such a setting no need for me to make any section 18 declaration as you will be credited for every day you have served to this point and the previous declaration will apply. If of course I am wrong in this regard I can correct this by way of a later declaration

Section 6 AAA

Had you pleaded not guilty I would have imposed a TES on the indictment charges of 3 years 3 months. I would have cumulated 19 months upon the existing sentences and fixed a new single non parole period of 30 months. That declaration is to be entered into the records of the Court pursuant to section 6 AAA

Are there any other matters?

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