Director of Public Prosecutions v Donnelly
[2022] VCC 2215
| IN THE COUNTY COURT OF VICTORIA AT Melbourne CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No: CR-18-02104
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAMON DONNELLY |
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JUDGE: | HER HONOUR JUDGE RIDDELL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 12 October 2022 | |
DATE OF SENTENCE: | 13 December 2022 | |
CASE MAY BE CITED AS: | DPP v DONNELLY | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2215 | |
REASONS FOR SENTENCE
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Subject:Sentence --- Obtaining Property by Deception
Catchwords: Obtaining Property by Deception --- Sale of Car --- False Claim that it was an original 1946 Holden Prototype --- Reconstruction of vehicle to add features of original Holden Prototype and remove features which would reveal it was a later model --- Victim paid $246,000 --- Vehicle worth $8,000 --- Plea Not Guilty --- Prior offences of Dishonesty --- Delay --- Family responsibility
Legislation Cited: Confiscation Act 1997 (Vic) --- Sentencing Act 1991 (Vic)
Cases Cited:Boulton v R [2014] VSCA 342 -- Bugmy v The Queen (2013) 249 CLR 571 --- DPP v Bulfin [1998] 4 VR 114 --- Kepkey v R [2021] VSC 202 --- Markovic v The Queen(2010) 30 VR 589
Sentence: Total Effective Sentence --- 3 years imprisonment --- 18 month non-parole period
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Triandos | OPP |
| For the Accused | Mr D. McGlone Mr E. Goldman | McNally & Gleeson Lawyers |
HER HONOUR:
1Damon Donnelly, you are currently 48 years of age. After a nine day trial which finished on 15 August 2022 a jury of 12 unanimously found you guilty of one charge of obtaining property by deception.
2That offending occurred in 2012 when you were between 35-37 years old.
3You deceived the victim, Mr Trevor Nelson, into believing that a car you were selling was an original Holden prototype imported from the USA to Australia in the 1940s.
4The history relating to the introduction of the Holden prototypes, and the lead up and basis of your offending are complex. They are contained in detail in the Summary of Prosecution Opening for Trial. The evidence led was in keeping with that opening.
Summary of Offending
5In summary, the facts of your offending are as follows.
6In 1946, General Motors Holden (GMH) sent three Holden prototype vehicles from the USA to Australia. Those vehicles effectively became the foundation for the production of FX Holden vehicles in Australia. It is because of that history the three Holden Prototypes are of significant value to anyone interested in the history and development of Holden motor cars in this country.
7The three cars were registered JP 480 (Holden Protype number 1), JP 481 (Holden Protype number 2) and JP 482 (Holden Protype number 3). Holden Protype number 1 is currently at the National Museum in Canberra. The whereabouts of Holden Prototype 3 are unknown.
8The offending in your case relates to JP 481 – Holden Prototype 2. The jury found that you falsely represented to Mr Nelson that a car in your possession ('the subject vehicle') was that original vehicle. As a long-time Holden enthusiast, Mr Nelson was very interested in buying it from you. You ultimately sold the subject vehicle to him for $246,000 and he paid instalments in February and March 2012. That car was a fake, and its true value approximately $8,000.
History of Holden Prototype 2 – JP481
9Holden Prototype 2 was assigned registration number JP 481 upon its arrival in Victoria in February 1947. It was originally called a Chevrolet, but in 1948 the name was changed to Holden to reflect the change of name announced by General Motors Holden. Engine number 1946/3 was registered with the vehicle on 12 February 1947; the same day it was assigned its Victorian registration number.
10In 1951, JP 481 was sold to Mr Albert Kleye, who was a GMH employee at the Fisherman's Bend plant in Melbourne and later, Service Foreman at the GMH Dandenong Plant. A follow up notification by Kleye to the registration branch stated that the engine block had been replaced and bared no engine number. In April of that year, records show that the bare engine block was restamped with a Victorian Police engine number V51441P.
11In May 1953 the car's registration was changed to GAB 694 and ownership transferred to a Maurice Octavius Wood. In turn, Mr Wood traded the vehicle in around 1956 to F. Williams and Sons located in Atherton Road, Oakleigh, a mechanic garage and car trader. This business was eventually bought out by Garry and Warren Smith Motors in February 1969. Thereafter, no known records exist to determine where or to whom vehicle Holden Prototype 2 registration GAB 694 was eventually sold or disposed.
12The engine which had been installed in JP 481 was registered as being installed in a vehicle OX 411 in 1951. It was replaced in Holden Prototype 2 with engine number V572399P in 1957. In other words, by 1957 the vehicle JP 481 and its original engine had been separated for almost 7 years.
Re-construction of the fake Holden Prototype 2 – JP 481
13On 18 June 2009, Gabriel Victor Brusco of Drouin passed away at the age of 81. During his life, Mr Brusco had worked as a motor mechanic with local Holden dealerships and other workshops in the West Gippsland area as a head mechanic. Consequently, he amassed a large collection of old parts for Holden motor cars and Holden paperwork.
14After Mr Brusco's passing, his son-in-law, Mr Rick Wyers, arranged to sell the vast collection of parts and tools that were stored on his property. These items included motors, starter motors, windscreens, differentials housings and centres and many other mechanical parts along with 5 generator motors made out of Holden 'grey' motors. Of significance, there were no FX Holden motor vehicles or shells present in this collection.
15On 20 August 2009, Mr Wyers advertised those items for sale on eBay. You contacted him during the bidding process when the bid for the collection was approximately $2,000. You negotiated to buy the lot for $8,000. Within hours you attended at Mr Wyers' address in the presence of an older man who I accept was your stepfather, Peter Donnelly.
16You returned with a different person days later to collect the items. You came with a semi-trailer and crane and spent the entire day loading all of the items. Mr Wyers assisted you in that process. In addition to all the parts and generators you also purchased from him a much later model 1978 HZ Holden utility which had been owned by Gabriel Brusco.
17The total amount you paid to Mr Wyers for the parts, generators and the HZ Holden Ute was $15,000.
18Mr Wyers gave evidence that his father-in-law, Mr Brusco, had an extensive collection of documents, many of which related to Holden vehicles. Some short time after you had purchased the parts from Mr Wyers, he advertised bundles of those documents for sale on eBay. You made contact and arranged to purchase the lot. You collected them and he issued a receipt.
19In about mid-2018, Mr Wyers came across a copy of that receipt which he provided to police. It is made out to the name Damon Donelly [sic]. The total amount for the sale is recorded as $15,000. Written in pen on the copy is the name “Damon” and a mobile and a work phone number, both of which belonged to you.
20On 3 September 2009, you advertised a number of items for sale on eBay under the username 'ismellrust'. One item was a Holden 'grey' motor. Mr Rodney Martin was the winning bidder and attended at a factory in New Gisborne where your stepfather kept his car parts and collections. He attended to collect the engine. He believed this had come from a deceased estate of an ex GMH employee that he had been monitoring on eBay (i.e., the Brusco estate).
21At that time Mr Martin owned a rolling chassis of a production model FX Holden sedan – in effect, a shell. It had no engine and there was no known chassis number. When Mr Martin attended your factory to collect the grey motor, he told you about the FX Holden sedan. You negotiated a swap of the motor for the rolling chassis. Mr Martin described you attending at his house with a trailer to collect the rolling chassis soon after.
22It was the prosecution case that this FX Holden rolling chassis became the basis of the car subsequently sold to the victim Mr Nelson as Holden Prototype No 2. I accept that to be the case and I do so to the requisite standard.
23I reach that level of satisfaction on the basis of your account in the record of interview which included the fact that you and your father purchased parts and 'the vehicle' and rebuilt the vehicle. Although the prosecution did not have to prove who built the vehicle or how or when, they relied on what you said in your record of interview, namely that you and your father purchased 'the car' in 2009 from a deceased estate belonging to someone who had worked for GMH. That ties with Rick Wyers' evidence regarding the Brusco estate, but there was no car purchased there; only the much later model HZ Ute. Hence, it is untrue. I accept that you purchased the rolling chassis around the same time and that it became the basis for the subject vehicle sold to Mr Nelson.
24You stated in your record of interview that you tried to obtain as much information as you could regarding the Holden Prototypes. You stated that back in around 2009 and 2010 you and your father were 'going through every book [you] could find'. You also corresponded with Mr Don Loffler, who had formerly worked for Holden General Motors, in your search into the history of the car.
25You told police you and your father then rebuilt the car. I find either you built the car alone or with your father or some other person or persons.
26Expert evidence was called at the Trial from two experts. Dr Norman Darwin holds a PhD in early automotive car design, and wrote his thesis in the evolution of car design in Australia from 1895 to 1953. He worked for General Motors – Holden for 15 years, from 1969 to 1985. He is a recognised expert in the history of Holden motor vehicles, having written five books on Holden vehicles, as well as numerous articles. He has presented conference papers relating to the history of Holden and is a member of multiple car clubs, holding the position of President of the Society of Automotive Historians. He gave evidence about the history of the Holden Prototypes generally, and about Holden Prototype No.2. He described in detail the appearance of the subject vehicle outlining where the appearance differed with the true Prototype.
27Mr Nigel Alves is a forensic officer with Victoria Police, who has worked in the vehicle examination unit since October 2013. He is a qualified motor mechanic with over 20 years of experience in the industry, and has completed a course at General Motors. He has particular expertise in the restoration of obliterated and altered identifying numbers for vehicles.
28Mr Alves gave evidence regarding his forensic analysis of the vehicle you sold. That evidence in combination with the evidence of Dr Darwin, demonstrated the many ways in which the subject vehicle had been altered to make it look like the prototype – either by adding or adjusting features or hallmarks which would accord with the appearance of HP2, or by removing marks or features of later production model FX vehicles. This included the following alterations:
1. The engine number pad displayed V51441P however on examination by Mr Alves the pad revealed the characters 7394 which belonged to the original engine. This engine was manufactured in 1949 and installed in a later production Holden sedan.
2. The shape of the number plates reading JP 481 had been altered to resemble an early-style Victorian number plate. The font of the number 1 had been flattened and sprayed to remove the hat on the 1, and make it appear like the earlier font style.
3. There were screw holes with spacing consistent with corresponding holes for a chassis number plate which was not used on prototype vehicles. These had been filled and smoothed over.
4. There was a GMH body plate that did not indicate a Prototype built in 1946 attached to the passenger side of the bulkhead.
5. There were anomalies in the centre of the floor panel. The floor panel in HP2 was handmade and consisted of two separate parts welded together. Examination of the floor panel in the subject vehicle revealed it was a single piece however weld marks had been made running along the floor panel as if to demonstrate two panels had been connected together, consistent with HP2.
6. The dedicated engine number pad on the Holden 'grey' motor with identification number 1946/7 was stamped with uneven irregular striations not consistent with the factory finish.
7. On the engine, casting on an 'X' had been added. That X usually denotes a prototype engine, however on this vehicle was false.
29In the background to your purchases from Mr Wyers and Mr Martin, you were making arrangements to obtain the registration number JP 481. This evidence was relied on by the Prosecution to demonstrate your efforts to obtain documents to support the false provenance of the vehicle you would ultimately present as JP 481.
30On 11 August 2009, you purchased a 1994 Black BMW 325i tourer via carsales.com.au. The vehicle was allocated a new registration number XEK 313.
31On the 22 August 2009, you purchased the registration number plate rights to the combination JP 481 under your name Damon Donnelly.
32On 30 October 2009 you registered the 1994 Black BMW in the name of your mother and arranged for the JP 481 number plate to be assigned to that vehicle. Those plates were never affixed to that car.
33On 9 November 2009 you contacted Shannons Insurance and arranged for insurance of a vehicle which you identified to be the Holden prototype number 2. You identified yourself as Peter Junior. You told Shannons that you paid $8,000 for the car from a deceased estate. You originally requested cover for $500,000 but were asked to provide evidence as to the genuineness of the vehicle. On 13 November you corrected your name to Damon, but on 9 December you advised that the policy should not be in your name as the car was not yours. A follow-up call indicated documentation was provided, however on 23 November 2009 cover was given for the vehicle for a value of $100,000. The registration provided was JP 481.
34On 8 February 2010, a motor vehicle that you claimed to be a 1946 Chevrolet Model 320, grey in colour, displaying chassis number 2 and engine number V51441P, was presented by you to a licensed roadworthy tester in New Gisborne. The documentation includes the name D. Donnelly and your phone number. You were recorded as being the contact person.
35The witness who undertook the roadworthy gave evidence that he did not know how to describe the vehicle based on its stated rarity. You showed him documentation identifying the vehicle model as a 1946 Chevrolet Model 320.A Roadworthy Certificate was subsequently issued.
36Two days later, I am satisfied that you presented the vehicle for registration at VicRoads in Bendigo. You did so seeking registration in the name of Peter Donnelly. You signed the application form as Agent for your father. At the same time you made application for a surrogate chassis number.
37The registration application indicated that the 'previous owner' of what was said to be a Holden Model 320 Sedan was 'Rick Wyerson' of Drouin. Your signature is attached to the Registration Application.
38Although the Prosecution could not prove that it was you who completed that false document, that is, the application form[1], I am satisfied that you were the one who presented it, along with the car, for registration and that you were aware of its contents. I am satisfied on the basis that first, you conceded in the record of interview that it could have been you who presented the car to VicRoads; second, you signed and dated the document on the same day; third, yours is the only signature on the document and I can assume VicRoads would not have issued registration if it had not been in some way acknowledged. Therefore, I can reasonably infer to the requisite standard that you knew what was on the document. That includes the false reference to Rick Wyerson.
[1] Charges discharged after a No Case to Answer submission.
39I am satisfied that the reference to Rick Wyerson of Drouin was a reference to Rick Wyers and the Brusco estate and was given in an effort of legitimacy. That detail of course cannot be true, given the evidence of Mr Wyers, which I accept, is that there was no such car in the Brusco estate and given you were the one present when the estate was collected. I am satisfied that you knew that information was false and that you lodged the document with the intention of hiding the true identity of the vehicle and knowing VicRoads would rely on that information as correct.
40There was evidence at the Trial of an email being sent by you in February 2010 to Mr Ted Furley of the National Holden Motor Museum in Echuca, which outlined the history of the car including that you had purchased the car from a 'Victor Brusco'. There was also evidence that the subject vehicle had been sent for display in the Echuca museum.
41Your stepfather died in October 2010. You were then engaged in selling off a large number of items which were part of his estate. This included car parts and the like, stored in his factory in New Gisborne. At that time, the subject vehicle was also housed in the factory, and had in front of it a sign apparently from the National Holden Motor Museum in Echuca identifying it as Holden Prototype 2.
42In May 2011, you were interviewed by Barry Park, a motoring journalist with The Age, and an article appeared in The Sunday Age. Mr Park had become aware of the fact you were advertising the subject vehicle for sale as a result of a flag he had set up, alerting him to any online advertisements for cars of interest.
43He interviewed you and gave evidence that you told him the history of the car. Mr Park's article 'Discovery of Missing Link in Holden History' was an exhibit in the Trial. It contains a great amount of detail as to the history of Holden Prototypes generally and as to Holden Prototype 2. It describes a number '2' stamped on a plate under the bonnet, the positioning of the rear vision mirror, and the visible replacement of 'Chevrolet' with 'Holden' on the registration papers as the indicators of the vehicle's prototype status. It further gives a brief history of the change from the NSW registration plates to its Victorian registration of JP 481. He gave evidence that the history given to him was from you. It must have been, given your stepfather had passed away by then. That history included, tellingly, that you had purchased the vehicle from a deceased estate in about 2009 for the sum of $15,000.
44In the article, you suggested that you were looking to find a new owner and that the asking price was $1.2m.
45You got to know Mr Trevor Nelson over a period of months. He was a car enthusiast but only at a hobby level and had no knowledge of the Holden Prototypes. You met him in the context of selling your father's estate. For that purpose he attended the factory in Gisborne and it was there that he observed the subject vehicle with the sign displayed in front of it. He continued to express his interest in the subject vehicle. You and he developed a friendship of sorts and he engaged you in employment at his company.
46You told him the 'history' of the subject vehicle and made representations to him about its authenticity. The representations you made were not only verbal, but included you taking him over the car and showing him all of the features of the vehicle which you told him demonstrated that it was HP2. What that shows is firstly, an intimate knowledge of the appearance of the HP2 and secondly, an intimate knowledge of the subject vehicle.
47You also gave Mr Nelson a folder of documents, including early registration papers, and the more recent paperwork obtained by you such as the roadworthy and VicRoads registration, as well as the article from The Age newspaper written by Mr Park.
48You sold him the vehicle and accepted the money from Mr Nelson knowing that the vehicle was not an original prototype and knowing that aspects of the FX had been altered to make the vehicle appear legitimate.
49Mr Nelson transferred funds to you on three occasions in February and March 2012. The total amount paid was $246,000. The deception was complete on payment of those moneys and hence they are reflected in the charge dates.
50Trevor Nelson died in 2020. His statements were read to the jury and committal evidence played to them. Mr Nelson stated that if he had known the true history and identity of the vehicle, he would not have purchased it. You told him it was “the real deal”. He stated that he would not have purchase the vehicle given its true value could have been much less. The market value of the vehicle was $8,000.00 in 2012.
51The jury accepted the prosecution case, namely that you sold the vehicle to Mr Nelson knowing that it was not an original prototype and knowing that aspects of the FX had been altered to make the vehicle appear legitimate, and knowing the associated engine had a false number. They rejected your version of events given to police in your record of interview whereby you claimed that the vehicle had come to you together with its parts and that you and your stepfather merely reconstructed it, and that it already had the JP 481 number plates affixed. They rejected your claim that you always believed the subject vehicle was Holden Prototype 2.
52You claimed you relied on an expert opinion from Mr Don Loffler in South Australia. Mr Loffler is indeed an expert in the history of Holden vehicles. However, he never inspected the vehicle. The evidence of Mr Alves shows that only close inspection would reveal the true and rather exquisite details of the car and the various anomalies which existed.
Arrest and Interview
53The article in The Age came to the attention of Detective Senior Constable Jordan Brown. He commenced an investigation into the subject vehicle in around July 2015. That investigation was thorough and detailed. It involved investigating not only the history and whereabouts of the three Holden Prototypes, but pursuit of the documentation tending to support this charge.
54You were arrested and interviewed by police on 28 March 2017. You denied purchasing the Brusco estate and denied attending Drouin to collect it. Further, you denied involvement in the production of the fake Holden Prototype 2 and distanced yourself from all aspects from acquisition, ordering of plates, arranging insurance, roadworthy inspection and registering of the vehicle with VicRoads. You nominated your stepfather as being the owner and dealer in relation to the car.
Sentencing Principles
55Offences of deception are serious offences, reflected in the maximum penalty of 10 years' imprisonment. They are serious because they are often very difficult to detect. They often involve planning and a calculated course of conduct which is directed at covering up the dishonesty involved. They often involve the breach of trust of an unsuspecting person, who is taken advantage of and who suffers a significant financial loss. Those features are present in your offending.
56You are charged on dates which reflect the occasions when Mr Nelson transferred moneys to you. However, your Counsel properly conceded that I could not view these as single date offences, but that it was appropriate I consider the lead up which involved both the creation of the subject vehicle and the obtaining of various documents aimed at its legitimacy.
57I cannot determine the exact period over which the car was altered, other than to say it must have taken some considerable time. The detail of hallmarks removed and added, as outlined by Mr Alves was quite extraordinary. The reconstruction must have occurred sometime between 2009 and when you offered the vehicle for sale in 2011.
58In your record of interview, you told police that you and your father bought 'the car' in 2009 and spent time recreating it. You reiterated those comments to psychologist Mr Bernard Healey in October this year. You told him you and your stepfather ‘fully refurbished the vehicle’.
59The obtaining of the number plates, insurance, roadworthy and registration also happened over a lengthy period.
60I have, however, taken a cautious approach to any time frame, given I cannot determine exactly at which point you determined to pass off the vehicle as HP2 and sell it to an unsuspecting purchaser. I can infer, as the prosecution case was put, that documentation and registration was obtained for that purpose, however the most certain reference point for that decision seems to be around the time you advertised the car for sale in about May 2011, coinciding with the article in The Age. You admitted to Mr Healey that you ‘decided he could sell that vehicle as apparently a vintage vehicle notwithstanding some advice from engineers to the contrary.’ In my view that is a clear acknowledgement that at the time you offered it for sale, you knew what you were doing was wrong.
61The victim here was a person who trusted you. Although the deception was not committed as a result of your employer/employee relationship, you came to know Mr Nelson over a period of time and to work for him. He obviously trusted you to engage you in work, and he trusted your entreaties to him that this vehicle was, as he put it. “the real deal”. You breached his trust.
62More broadly, deceptions such as these undermine the community's trust in online buying and selling of cars. It is right that buyers must beware and should make their own enquiries, however when it comes to cars that is an area where many people rely in good faith on the word of the seller. That comes with it a burden of responsibility on people who trade online. Those are often items of significant value and as a result buyers have a lot to lose. When one person undermines the faith and responsibility it undermines the confidence in that system.
63For all of these reasons principles of general deterrence, denunciation and community protection loom large in sentencing you.
64In your case specific deterrence also plays a role. You were convicted in this Court in October 2008 of seven charges of obtaining property by deception. Those offences occurred in 2004 and 2005 and related to other online dealings in what were said to be vintage cars and car parts. The victims of those offences paid you money for items you either did not have or never provided to them. The value of your fraud on that occasion totalled $130,000. You pleaded guilty and were sentenced to two years imprisonment which was wholly suspended for a period of three years.
65Separately you pleaded guilty in the Bendigo Magistrates' Court in November 2008 to obtaining financial advantage by deception. You received one month imprisonment suspended and concurrent with the County Court suspended sentence. You were ordered to pay compensation of $9,400, although you reported to Mr Healey at that time that you had made restitution in the sum of $11,000 and were paying off a balance of $7,000. You claimed that offence related to selling a car and being unable to provide a roadworthy.
66You also have other prior matters of assault, recklessly causing injury and driving matters including stating a false name or address. You were placed on an Intensive Correction Order in the Magistrates' Court in 2008. You breached that order, however were given another opportunity to complete it along with a Community Correction Order imposed in 2009. I can assume you completed those orders as there is nothing further on your criminal record.
Personal Circumstances
67I have read the assessment report from 2008 authored by Psychologist Mr Bernard Healey and which outlines your history, and I have also considered an updated report from him dated 24 October 2022.
68You were born in Fitzroy and were raised in Fawkner. Your parents separated when you were about four years old. You had little contact with your natural father Pedro Cavalieri until about age 12 or 13, but contact diminished over time as he showed little interest in you. There is some material which suggests you have had some contact with him in more recent years which has been limited but generally positive.
69Your mother developed a new relationship with your stepfather, Peter Donnelly. The three of you moved to Gisborne when you were about age 10.
70You a half-sister from your mother's relationship with Peter. You and your sister have a positive relationship and she has been present at various times throughout these proceedings and has provided a written reference. Your mother has also provided a written reference.
71You describe your stepfather Peter Donnelly as physically, mentally and emotionally abusive towards you and your mother, particularly when under the influence of alcohol. You reported to Mr Healey that there were times where you could not go to school because of bruising on your body or a broken nose as a result of your stepfather's abuse.
72You also state that the area of Fawkner in which you were raised was violent, and that Peter had criminal connections. You lived in approximately six rental homes prior to your move to Gisborne and you indicate that money was tight for your family growing up.
73On moving to Gisborne you lost any friendships from your school and you became socially isolated. You did not have friends to your house on account of the tense environment.
74You say your mother tried to end her relationship with Peter, but always returned at his insistence. Once you reached your 20s you were able to intervene on your mother's behalf and it seems any violence started to abate. Peter Donnelly had a motor vehicle accident shortly after your move to Gisborne and did not return to work.
75You report that he apologised towards you and your mother for his behaviour when you were younger, and that you developed a better relationship in your later years. There is some conflict in the evidence as your mother in her reference describes him as your mentor and best friend. It was he who inspired your interest in cars, and you apparently spent a lot of time with him in that pursuit. In your record of interview, you became upset when discussing his passing. I accept he was a significant feature in your life in both negative and positive ways.
76Your mother is now 69 and undergoing recovery from breast cancer and is receiving treatment for Diabetes.
77You have had only sporadic contact with extended family on both your mother and father's sides, and your family was cut off from your mother's extended family who did not approve of her relationship with Peter Donnelly.
78In the most recent assessment with Mr Healey, you told him that you recall experiencing sexual abuse at the age of eight from a then 16-year-old cousin. You have not previously disclosed this and you believe your mother and sister are unaware of that fact, although there is some family awareness of this cousin's sexual abuse of his own siblings.
79It was not suggested that your formative years enliven the principles enunciated by the High Court in the case of R v Bugmy[2], however they of course form a backdrop to your development. I accept that your early years were marked by emotional and at times physical trauma. I accept that you are a man marked by anxiety as a result.
[2] (2013) 249 CLR 571
Education and Employment
80No doubt in the context of your home life, your grades at school were not good, and you had to repeat Year 10. You suffered some bullying and did not relate particularly well to teachers or your peers. You were financially limited in your ability to engage in extracurricular activities. You did however ultimately complete Year 12.
81After school you trained as a chef through William Angliss, apparently at the urging of your stepfather. You were employed at the Stokehouse and another restaurant in Port Melbourne for a total of three years.
82You then worked on West Swanston Dock as a straddle operator, picking up containers, for three years until you suffered a work injury to your neck. You became unemployed and began to pursue your interest in buying and selling vintage cars, motor bikes and parts on eBay. Since then, you have worked in and out of labouring and, on occasion, as a chef. At the time of the offending, you were apparently not in consistent work. At the you were interviewed in 2017 you gave your occupation as 'chef'.
83More recently you received an exemption to work through COVID and have worked at a construction site at Kalkalo, where there is apparently work available for the next 10 years. I have also received a reference from Srdjan Dobre of Dobre Excavation who offers you employment. That is relevant to your capacity to pay the compensation order which I will make against you.
Alcohol and Gambling Abuse
84According to Mr Healey, from around the age of 20 you began ‘deriving dubious solace and escape from alcohol to the point of frank alcoholism.’ In the context of work in hospitality you found alcohol to be easily accessible. You also descended into gambling which was a significant problem for approximately two years. You reported going drinking almost every night of the week and would sometimes sleep in your car in order to attend work. The quantities you consumed would lead to you blacking out.
85Your first relationship commenced when you were approximately 28 but deteriorated and eventually ended in 2006 as a result of your alcohol use and gambling. Around that time, and I interpolate, the time of your 2004-5 offending you were drinking heavily, gambling and at times couch surfing or sleeping in your car before work.
86It was after that relationship ended, that you returned to live with your mother and stepfather amid a realisation that you had to 'get your life together'.
87In 2007, with the assistance of a counsellor at the Werribee Mercy Psychiatric Unit, you successfully abstained from alcohol. According to Mr Healey you have been absent any alcohol intake for the last 10 years.
88You met your wife in 2010 and married towards the end of 2012. You moved to her apartment in North Melbourne and then together to Maribyrnong before relocating to a home in Woodend. Your wife holds the title to that house. You have a daughter together who is now 10 years old.
89Your wife is a Secondary Teacher and is 10 years younger than you. You report that she enjoyed a 'rather intensive' social life and that alcohol was a regular feature for her. You say she would at times stay away from the home for periods of days. You had concerns about drug use.
90Your relationship ended early in 2022, you say as a result of stressors created by her lifestyle and exacerbated by your legal situation and the COVID-19 pandemic. She left the matrimonial home and since that time you have had sole care of your daughter. According to you, your wife spent time in a psychiatric inpatient unit after leaving you, although she has now returned to part time teaching. There were intervention order proceedings between you which resolved without any order being made against you, but with an order preventing her from attending your home.
Family Hardship
91At your plea, significant reliance was placed on your role as sole carer for your daughter. Your daughter was described by your counsel as the most important and positive effect in your life. You have stopped paid work to attend to her needs and to assist her through the emotional aftermath of your separation.
92I have received a number of references which attest to your dedication to that role. It is unclear to me whether those persons are aware the references are being used for criminal proceedings, as opposed to family law proceedings. Nonetheless I take into account their contents. They attest to your primary role in delivering your daughter to school and supporting her extracurricular activities, to the fact you are engaged in knowing her friends and their parents and being an active part of the school community.
93Most important to my mind is the reference from your stepsister in this regard. She writes in full awareness of your offending. She is in regular contact with you. She talks not only of the role you play and the impact on you, but about your daughter's connection to you. She states that your life revolves around your daughter and hers around you. She says you mean the world to her – that is your daughter – and that it would be devastating and traumatic for your daughter to be separated from you after the abrupt separation from her mother.
94Family hardship is a matter which is relevant to sentencing. The leading case is the 2010 Victorian Court of Appeal decision in Markovic v The Queen[3]. As stated more recently by the Kyrou J in Kepkey v The Queen[4], the Court in Markovic:
‘reaffirmed that family hardship can only be taken into account as a sentencing consideration where exceptional circumstances render the plea for mercy irresistible. It summarised the applicable principles as follows:
1. Reliance on family hardship — that is, hardship which imprisonment creates for persons other than the offender — is itself an appeal for mercy.
2. Properly understood, therefore, the purpose and effect of the ‘exceptional circumstances’ test is to limit the availability of the court’s discretion to exercise mercy on that ground.
3. Accordingly, there can be no ‘residual discretion’ to exercise mercy on grounds of family hardship where the relevant circumstances are not shown to be exceptional.
4. The effect on the offender of hardship caused to family members by his/her imprisonment raises different considerations, to which the ‘exceptional circumstances’ test has no application.
[3] (2010) 30 VR 589
[4] [2021] VSC 202
95The Court referred to the fact that such cases will be rare and that there are many examples of undoubted hardship which have fallen short of that test.
96His Honour in Kepkey continued,
The ‘exceptional circumstances’ requirement was developed in response to several considerations. First, it is almost inevitable that imprisoning a person will have an adverse effect on the person’s dependants. Secondly, the primary function of the sentencing court is to impose a sentence commensurate with the gravity of the crime. Thirdly, to treat family hardship as the basis for the exercise of leniency produces the paradoxical result that a guilty person benefits in order that innocent persons suffer less. Fourthly, to treat an offender who has needy dependants more leniently than one equally culpable co-offender who has none would defeat the appearance of justice and be patently unjust.
97I accept that your current role as sole carer for your young daughter is a matter which is relevant to my consideration and is a mitigating feature in sentencing you. However, I do not find that it reaches exceptional circumstances such that it ought to significantly affect the ultimate outcome in your sentence. I therefore take it into account generally, but not to the extent that it meets that test.
98I accept that any separation from you in the light of the recent separation from her mother will be difficult for your daughter. Fortunately, your mother is available to her and already plays a support role at times having her stay with her and at times driving her to school. Your stepsister is also available though I accept she has her own commitments. I am aware that your wife is also waiting in the wings and keen to have care of your daughter. Whatever issues may exist there are matters for determination in other proceedings and I do not have any evidence about that beyond what you have told Mr Healey. The bottom line is that there are other adults in the form of mother, grandmother and aunt who are available to your daughter.
99I do take into account the impact separation will have on you. You will no doubt experience guilt and worry about your daughter. She is young and has just experienced the separation of her parents. I accept time away from her will be more difficult for you in those circumstances. I accept time in custody will mean you are not immediately available to her and that will limit your capacity to resist any family law proceedings. I accept this will make time in custody more difficult for you and I take those matters into account.
Mental Health
100I also take into account that you are someone with a history of anxiety and depression. At the time of his 2008 assessment Mr Healey described you as 'distressed, disturbed emotionality, with in particular depression, anxiety, social introversion/withdrawal and initially schizoid trend features. The latter resolved by the time of his second assessment in 2008'.
101You have also reported issues with sleep that commenced in childhood, which you attribute to emotional distress.
102Mr Healey notes you took an antidepressant from around 2009 for two to three years and attended on a mental health professional for about 12 months. That of course is double edged given the offending before me occurred after that time.
103In his 2022 assessment Mr Healey described an overall improvement in your mental health commensurate with ceasing alcohol abuse. However, he said your generalised anxiety remains at a clinically significant level. He also referred to some post-traumatic stress reflecting the legacy of your early childhood and adolescence.
Prospects of Rehabilitation
104In relation to your prospects of rehabilitation they are somewhat guarded in my view. You are a person with a prior history of similar dishonesty. You were dealt with in this court not long before committing the offence before me. The warning of a suspended term of imprisonment along with your involvement on an ICO and CCO should have deterred you from further offending. And yet, your offending in fact escalated in terms of the scale and quantum of dishonesty here.
105I take into account your life circumstances at that time which I accept are different to your current circumstances.
106I take into account the fact that you have not offended for approximately 10 years.
107I accept your relationship and birth of your daughter were stabilising factors as you changed your life around.
108I accept you are someone with a history of employment and have expressed a willingness and capacity to make restitution, though none has been made thus far.
109You ran a trial on this matter. That is not an aggravating feature, however it means you do not receive any of the leniency which attaches to a plea of guilty, an acknowledgement of your wrongdoing and acceptance of responsibility, nor an expression of genuine remorse.
110Although you report feeling ashamed and embarrassed of your offending conduct, you continue to obfuscate in your description of what that involved. You either lack insight or still wish to deny this offending. That does not usually bode well for rehabilitation. For those reasons I find that your prospects of rehabilitation are somewhat guarded.
Delay
111Your Counsel relied on delay as a mitigating matter in your case. Delay in a case of dishonesty is double edged. Often, as here, it is at least in part brought about because of the difficulty in detection of the deception. Your Counsel accepted the thoroughness needed in the investigation. The informant gave evidence about the many paths he had to follow in order to obtain evidence which established your involvement in the offence. You cannot receive a credit for that delay.
112You were interviewed in 2017. Since that time there has been significant delay in finalising the matter. There were ongoing issues with obtaining of or disclosure of material. There were numerous mentions and Prosecution delays in compliance with a number of Court orders. At one stage the trial prosecutor was unavailable due to a circuit trial over-running. Given the size and complexity of the brief that necessitated an adjournment.
113There were also delays brought about by the COVID-19 pandemic. Given the nature of your case and the fact you were on bail yours was not a high priority trial. Then, when it was listed for trial in early 2022 you contracted COVID-19 and the trial had to be aborted.
114I take into account the delays since the time of your record of interview, and the fact that this matter has been hanging over you for a period of over five years. In that time you have not reoffended but have continued on your path to rehabilitation from your earlier lifestyle.
Current Sentencing Practices
115I have taken current sentencing practices into account and the maximum penalty. I was assisted by your Counsel, who provided me with a snapshot of sentence statistics and ranges for this offence. Ultimately, I am required to impose a just sentence and that is what I have endeavoured to do.
116The offending in question occurred prior to 1 September 2013, and the sentencing option therefore of a wholly or partially suspended sentence of up to three years is available to me.
Victim Impact
117Deception covers a wide range of factual scenarios and quantum of loss for victims. The victim here was a man heading towards retirement. His wife writes of the impact of your offence which included the need for her and her husband to return to work at a stage of life when they had other plans. That coincided with Mr Nelson being diagnosed with cancer, a fact you may not have been aware of, but a compounding stress for Mr Nelson and his wife.
118You have not repaid any of the money since being interviewed in 2017 and as such, the Nelsons have not been compensated in any way for the valuable asset they thought they had purchased. I take the impact on Mr Nelson and his wife into account.
Objective Seriousness
119In assessing the objective seriousness of your offending, I do take into account that it was Mr Nelson who first approached you to buy the car, although you then entreated him over a long period of time.
120I take into account the quantum here of $246,000, while reasonably substantial, is much lower than in many other cases where deceptions run into the millions. I take into account that you spent the money at least in part on assisting family including buying your mother a vehicle, but a deal of the money is unaccounted for.
121My overall assessment of the objective gravity of your offending is that it was sophisticated, detailed and purposeful. You were the one doing all the wheeling and dealing in buying parts and in obtaining provenance through documentation. The extent of knowledge which was used to Frankenstein the car in order to make it look like the Holden prototype was extraordinary. Having created the monster, you then determined to sell it to an unsuspecting buyer for significantly more than it was worth. You did that fully knowing it was not the real deal. You deceived someone who trusted you and who you knew was reliant on your honesty. Your moral culpability is very high. Those factors make this, in my view, a moderately serious example of this type of offence.
Prosecution submissions on sentence
122The Prosecution submits that a term of imprisonment with a head sentence and
non-parole period is appropriate in this matter.123They highlight your offending as being elaborate and characterise you as showing no evidence of remorse or insight into your offending behaviour.
Defence submissions on sentence
124Your Counsel relying on the reports of Mr Healey submits that around the time of your offending you remained a distressed and disturbed man. Those features which were described in the 2008 sentencing remarks it was submitted had not yet resolved. In contrast, you have turned your life around since this offending and have not reoffended.
125For those reasons your Counsel submits a term of immediate imprisonment is not the only available sentencing option. Counsel relied on the Court of Appeal's comments in Boulton v R[5] to submit a Community Correction Order could meet the offending here.
[5] [2014] VSCA 342
Conclusion
126In my view the nature of your offending and your history of similar offending close in time, mean general and specific deterrence loom large.
127I take into account the comments of Charles JA in DPP v Bulfin[6]:
Whatever the motivation, offences of the kind here in question almost invariably involve a carefully calculated course of conduct over a long period, repeated deliberate acts of dishonesty, substantial amounts of money, and, frequently, losses … to large numbers of small investors. The offender often holds a position making it possible, or has the ability, to disguise or camouflage the conduct in question. Detection is difficult, the investigation of the crime usually lengthy and very expensive, and the problems of trial and proof will frequently be extreme. … The result of such considerations … is that the element of general deterrence will usually carry particular significance in sentencing for crimes such as the present, both in relation to the total effective sentence and the non-parole period; together with a requirement for strong denunciation by the sentencing court.
[6] [1998] 4 VR 114
128You have had the opportunity of suspended sentences, an intensive correction order and community correction order. Having undertaken the sentencing synthesis, I am not satisfied that it would be appropriate to impose any of those orders in the circumstances of your offending, even taking account of the mitigating features. In my view a term of imprisonment is the only appropriate disposition here. Further, in my view it must be a term which includes a term which is immediately served and, in light of my conclusions about your prospects of rehabilitation, sees you supervised on release.
129The mitigating features such as your reform, the delay, your role as carer for your daughter, and your willingness to repay the monies obtained, work to mitigate the term I will impose and to reduce both the head sentence and the term to be served prior to becoming eligible for parole.
130I also have taken into account that you will enter custody at a time when the COVID-19 pandemic is still at play. You can stand up please, Mr Donnelly.
Total Effective Sentence
131On Charge 3 of Obtaining Property by Deception you are convicted and sentenced to 3 years imprisonment. I direct that you must serve 18 months imprisonment before becoming eligible for parole.
Ancillary Orders
132The Prosecution make an application pursuant to s86 of the Sentencing Act 1991 for compensation - excuse me. Just have a seat Mr Donnelly.
133I understand there was an email this morning, Mr Triandos, indicating the compensation order should be made to a different name. Is that right?
134MR TRIANDOS: Yes, Your Honour.
135HER HONOUR: And that is, is it Tranell Group? Tranell.
136MR TRIANDOS: Yes, that's correct, Your Honour.
137HER HONOUR: Tranell Group Pty Ltd atf Nelson Family Trust.
138MR TRIANDOS: Yes, Your Honour.
139HER HONOUR: Very well. I take it there is no issue with that, Mr McGlone?
140MR McGLONE: No, I just would have liked the details earlier, that is all.
141HER HONOUR: Yes. You can stand up again, Mr Donnelly, please.
142The Prosecution makes an application pursuant to s86 of the Sentencing Act 1991 for compensation in the sum of $246,000.00, payable to Tranell Group Proprietary Limited atf Nelson Family Trust.
143You do not oppose the application for compensation. I propose to make it in those terms.
144The Prosecution also makes application pursuant to section 32(1) of the Confiscation Act for the forfeiture of a number of documents and photographs seized from your premises. Again, you do not oppose that order and I propose to make it in those terms.
145COUNSEL: As Your Honour pleases.
146HER HONOUR: You can have a seat there. Any issues to raise, counsel?
147COUNSEL: No, Your Honour.
148HER HONOUR: All right, thank you very much. I will leave the Bench and I will just give Mr Donnelly a moment with your sister and then he can be removed please. Thank you. Thank you counsel for your assistance.
149COUNSEL: As Your Honour please.
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