Director of Public Prosecutions v Gakis

[2014] VCC 511

v

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-12-02272

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHARLES GAKIS

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	26 February 2014
DATE OF SENTENCE:	14 April 2014
CASE MAY BE CITED AS:	DPP v Gakis
MEDIUM NEUTRAL CITATION:	[2014] VCC 511

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW

Catchwords: Two rolled-up charges of obtaining property by deception – breach of trust of victims who were not financially well-off – past history of similar offending – accused had served a prison sentence, parole and Community-Based Order in between last offending, five years ago, and date of sentence – full restitution to victims and some rehabilitative gains – order pursuant to s44 Sentencing Act 1991 – three months’ imprisonment plus Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	Office of Public Prosecutions
For the Accused	Mr M Dempsey	Victoria Legal Aid

HER HONOUR:

1       Charles Gakis, you have pleaded guilty to two charges of obtaining property by deception, each of which carries a maximum sentence of 10 years’ imprisonment.

2       The circumstances of your offending are detailed in the prosecution plea summary (Exhibit “A”).  

3       Charge 1 relates to you dishonestly obtaining a total of $138,100 from Sandra Hall between 3 September 2004 and 20 August 2009 by falsely representing that the money was to be used for various purposes relating to your alleged purchase and development of the Royal Mail Hotel at Whittlesea and also in order to pay for the purchase of a Mini Cooper motor vehicle for Ms Hall’s daughter, Demi Hall-Poulios.  This is a rolled up charge comprising 12 separate transactions of you obtaining sums of money from Ms Hall.

4       Charge 2 relates to you dishonestly obtaining a total of $35,580 from Ms Demi Hall-Poulios between 3 May 2009 and 18 July 2009 by falsely representing that the money was to be used for legal costs in relation to your alleged purchase of the Royal Mail Hotel at Whittlesea or to pay for the purchase of a Mini Cooper motor vehicle for Ms Demi Hall-Poulios.  This is also a rolled up charge comprising nine separate transactions of you obtaining sums of money from Ms Hall-Poulios.

5       Your offending involved you befriending Ms Demi Hall-Poulios, who was aged only 14 years, when you first met her working as a casual kitchen hand at the Royal Mail Hotel in Whittlesea, where you were a chef.  You then ingratiated yourself with her mother, Ms Sandra Hall, in order to impose on their trust and extort money from each of them, time and time again, by playing on their friendship and  sympathy.

6       You are presently aged 48 years, having been born on 20 September 1965.  You come before the Court with a significant criminal history, particularly for dishonesty offences.  Between 1983 and 2008 you appeared before courts on seven occasions on some 64 charges, of which the vast majority were offences of dishonesty, including obtaining property by deception, obtaining a financial advantage by deception, theft and forging and uttering.  The most serious offending was as follows:

·    At the County Court at Melbourne on 19 December 1990 you were sentenced by His Honour Judge Byrne to a total effective sentence of three years and six months with a non-parole period of 18 months for a total of eleven charges of theft, five charges of attempted theft, one charge of obtaining a financial advantage by deception and one charge of forging and uttering.  His Honour’s sentencing remarks (part of Exhibit “C”) note that your offending involved circumstances where “you won the confidence of people and then betrayed that confidence for the sake of your own ends”.  He described you as having a calculated objective to serve your own selfish interests and the suffering that you brought to other people did not count with you to deter you.  He described you as a “scheming criminal”.  In his remarks, his Honour stated:  “I think you have come thudding down to earth during your stay in custody to this time and I think that you are now likely to be chastened and determined to behave yourself in the future”.  Unfortunately, his Honour’s optimism for your future was not realised. 

·    On 12 February 1992 at Melbourne Magistrates’ Court you were convicted of 14 charges of obtaining property by deception and one charge of theft.  You were sentenced to three months’ imprisonment, wholly suspended, and also ordered to serve a Community-Based Order for a period of 12 months.

·    At the County Court at Melbourne on 12 November 1998, you appeared on three charges of obtaining property by deception, eleven charges of obtaining a financial advantage by deception, one charge of theft and one charge of attempting to obtain property by deception.  You were convicted and sentenced to a total effective term of imprisonment of 30 months with a non-parole period of 16 months.  It is clear from the sentencing remarks of His Honour Judge Shelton (part of Exhibit “C”), that, yet again, your conduct involved you acting as a conman, by representing yourself to various of your victims as a wealthy man in order to encourage them to part with money for purported investments.  Your offending involved a significant number of transactions with different victims and involved amounts totalling almost $300,000.  His Honour commented that “a pattern emerges in your offending in that you persuaded members of the community to invest in proposed ventures which appeared doomed to failure, with your promising to invest substantial sums, which never occurred”  and your victims were left with financial difficulties.  His Honour Judge Shelton referred to material from Dr Lester Walton, psychiatrist, which described you as suffering widely ranging mood swings.  He also referred to a report from the psychologist, Mr Healey, who diagnosed you as having a Bipolar Mood Disorder, which, by the time you came to be sentenced, had been the subject of medication to control your mood, whilst you were in custody.  His Honour did not accept that the principles laid down in Tsiaras v Anderson (1981) VR 155 applied, but considered that your mood disorder warranted some ameloriation of the emphasis on general deterrence. He thus imposed a shorter than usual sentence with a longer than usual parole period.

·    During the period of your offending against Ms Sandra Hall, between September 2004 and May 2005, you committed further offences by fraudulently obtaining benefits of $73,766 from the Transport Accident Commission (Exhibit “D”).  At the Magistrates’ Court at Melbourne on 4 December 2008, you had been convicted of 28 charges of obtaining a financial advantage by deception and sentenced to be imprisoned for an aggregate period of 30 months with a non-parole period of 18 months.  However, you successfully appealed to the County Court and, on 5 August 2010, Her Honour Judge Cannon sentenced you to an aggregate period of 18 months’ imprisonment with a non-parole period of 9 months. 

7       Your victims, Ms Hall, and her daughter, Ms Hall-Poulios, were strung along by you with a series of lies.  Over the years you presented them with multiple different excuses as to why you were unable to repay the money, when in fact any proposal for you to purchase the Royal Mail Hotel at Whittlesea had fallen through by late 2004.  You invented litigation relating to the deal, claimed that you had kidney cancer, that your father had died, that your mother had died, and many other stories designed to arouse sympathy for you, so that they would not press for payment. 

8       Ultimately, Ms Hall received a nasty shock to read in the newspaper about your appearance at the County Court for the TAC fraud.  It was only after this that your victims became aware of your true nature and, finally, made a statement to police in 2011 about the fraud which you had perpetrated upon them over so many years. 

9       You were interviewed by police on 7 December 2011 and, essentially, made a “no comment” record of interview.  You were charged on summons on 10 February 2012, and both of your victims were put through cross-examination at a contested committal hearing on 6 December 2012. 

10      You were committed for trial and pleaded not guilty.  On 16 August 2013, you filed a defence response to the prosecution opening in preparation for the trial which was listed on 14 October 2013.  Prior to that date, negotiations took place and on the morning of the trial the matter resolved into a plea of guilty to the two rolled up charges for which I must sentence you.  On that date, you paid an amount of $20,000 by way of restitution to Ms Hall.  When the matter came on for plea before me on 26 February 2014, further restitution in the sum of $45,000 was made to Ms Hall.  Your counsel, Mr Dempsey, asked that the sentence be delayed for a period until April in order to enable you to make further restitution your victims.  This has been achieved by your twin sister and her husband taking out a mortgage loan on their family home as well as your current partner giving you some funds.

11      The matter was adjourned until 14 April 2014 and, this morning, two further cheques of $59,000 and $9,500 were paid to Ms Hall.  These amounts and the earlier cheques for $20,000 and $45,000, together with some $4,600 worth of goods which were given to her back in July 2009, result in restitution of $138,100 ultimately having been made to Ms Hall nearly 10 years after the first amounts of money were extracted from her, and nearly five years after the last amounts were extracted from her.  Today, also, a cheque of $35,580 has also been handed over for Ms Hall-Poulios, in full restitution of the amounts of which you defrauded her five years ago. 

12      The impact of your despicable conduct upon your victims has been devastating.  Ms Hall is a single parent who, over the course of your offending, has suffered cancer and the loss of both of her parents, as well as losing her house and her possessions during bushfires in the area in which she lived.

13      In a Victim Impact Statement made on 25 February 2014 (Exhibit “B”), Ms Hall stated that, “The heartache and damage that your actions have caused myself and Demi can never be undone”.  She describes your appalling lies and how, “you took what was not yours to live a Packer lifestyle while we went without”.  She describes the great privation they suffered after the bushfires destroyed her home and concludes by saying that your conduct, “Has cost me, my family, my friend, my health, my trust in people.  Most of all it took what I hold most precious to me – time.  10 years gone.”

14      In a plea on your behalf by Mr Dempsey, the Court was told that you have not been involved in any further offending since the last of this offending in 2009.  You were released from the sentence imposed by Her Honour Judge Cannon in May 2011 and there are no outstanding matters.  Mr Dempsey said that, since being released from prison, you have endeavoured to rebuild your life.  You have formed a relationship with your current partner, Ms Nikolovska.  You have rebuilt a relationship with your daughter, Anastasia, from one of your three earlier marriages.  She moved to Melbourne from Ballarat in the middle of last year, in order to undertake her VCE here.  In addition, you have forged a bond with your stepmother, Anastasia Gakis, who was your father’s second wife and to whom you had previously not been close.  Your father died in 2010.  At that time, you had been estranged from him since 2005.  Apparently, the lack of reconciliation before his death caused you considerable grief and you twice tried to commit suicide.  It seems that you have tried to atone in some way by taking a keen interest in your stepmother since being released from prison and have been actively helping her with matters of daily living.  You have gained her trust and she was in court to support you, whereas previously she had never been to any of your court appearances. 

15      I heard evidence from your partner, Ms Nikolovska.  She is some 15 years your junior, aged 33.  She is a secondary school teacher by occupation and met you whilst doing part-time waitressing work at a restaurant in Ivanhoe, where you were working as a chef.  She said that she met you towards the end of 2011 and you commenced going out in or about April 2012.  You were earning $85,000 as a chef, but had no living expenses because you lived with your twin sister and her family.  She claims that you are a good man and she did not recognise the conduct read out in the prosecution summary as being associated with the man she knows.  She says that you are a decent and loving partner and have been very diligent in ensuring that your daughter in Year 12 has all that she needs for her VCE year.  She also confirmed that you have been very attentive towards your stepmother and have gained her trust. 

16      Ms Nikolovska impressed me as someone who wanted to see the best in you but she obviously had no idea about the nature of this offending or, indeed, your extensive criminal history, prior to coming to court for the plea hearing.  You had told her that you had been in jail in the past but had not intentionally hurt anyone and that this case was all about “the sale of a hotel that fell through”.

17      Mr Gakis, there is no doubt that you have been a serial predator upon and an audacious liar to the victims in this case, and, also, to your prior victims.  You have offended against people who could ill afford the money they gave you, and the fact that they gave more and more, repeatedly, over such a protracted period of time shows that they cared for you and wanted to help you.  You defrauded them in a heartless way which shows a serious breach of trust.  There is no doubt, in my mind, that the only appropriate sentence for your offending against Ms Sandra Hall is custodial sentence with an immediate custodial component.  This is a case where denunciation, general deterrence, specific deterrence, protection of the community and just punishment need appropriate emphasis.  However, there are a number of important considerations which must be taken into account in your favour as follows:

(i)There was delay in reporting the matter to police.  This occurred only in July 2011.  This delay occurred because Ms Hall thought you were her friend and she lacked knowledge of your true nature as a fraudster, and because you strung her along and had lied to her.  Nevertheless, such delay deprived you of potential concurrency with the sentence which was imposed by her Honour Judge Cannon on 5 August 2010.  You were released from custody in May 2011 and successfully completed your parole period by February 2012.  In addition to that, you have also successfully completed a six month Community-Based Order which was subsequently imposed at Heidelberg Magistrates’ Court on 11 May 2011.  Hence, I take this delay into account in sentencing you.

(ii)Specific deterrence must be a matter of emphasis in your case, because of your repeated fraudulent offending against your victims and your past history of similar offending.  However, some amelioration of the emphasis upon it should take place in the light of the fact, that since the date of the offending, one must assume that there has been some rehabilitative affect by reason of you having served the prison sentence imposed by her Honour Judge Cannon, as well as successfully completing your parole period and, also, undertaking a Community-Based Order successfully.

(iii)Since being released from prison in May 2011, you have reorganised your life.  You obtained work as a chef at a restaurant where you met your current partner, but that employment ceased in 2013 and you had been looking for work prior to my remanding you in custody on 26 February 2014.  Your counsel told the Court that you are confident of obtaining work and, indeed, anxious to do so to repay your partner and, also your family members, who provided the funds for restitution by way of mortgaging their home.  Notwithstanding that you spent the money which you obtained from your victims on a profligate lifestyle, having an affair with a woman and lavishingly renovating a home, you ultimately lost all of your ill-gotten gains by being out-conned by a fraudulent solicitor.  Thus, at the end of it, you had no property and no car and have been dependent upon your sister who has supported you and allowed you to live in her home with her family.  It is a protective factor that you do now have the support of your sister and her family, as well as your current partner.  Also, you have forged a relationship with your stepmother, from whom you were formally estranged, and you have formed a supportive bond with your daughter, Anastasia. 

A bundle of references tendered as Exhibit “1” attest to the rehabilitative gains that you have made since being released from custody.  Those references are from Dr Maher Luka, who is the general practitioner of your stepmother, and attests to her poor health and the assistance that you give her on a daily basis.  There is another reference from your former wife, Debbie, who speaks of the support that you have been to your daughter, Anastasia, including the provision of tutors to help her with her schoolwork, of how you have strengthened the relationship with her and shown yourself to be a dedicated father.  There is another reference from Anastasia who states that she did not think highly of you because of her past experiences with you, but, since last year, when she moved to Melbourne, she has found your support tremendous, has experienced thoughtfulness and consideration from you that she would not previously have thought possible, and that you have brought the family together to assist your stepmother, as well as giving her all that she needs to concentrate on her studies.  The final reference is from your twin sister’s husband, Peter Phlorides, who has known you for 25 years.  He describes how your life spiralled out of control and you became ostracised from your family, but states that, since being released from prison, you have shown yourself to be a caring and unselfish person and have reconnected with your family and been of great support to them.

(iv)I have also taken into account the fact that you have pleaded guilty.  I do not regard your pleas as being remorseful pleas.  This is because you strung this matter out by putting your victims through a contested committal hearing and only pleaded guilty as the trial date loomed, nearly two years after you were interviewed by police.  Nevertheless, I must take into account such pleas by giving you a tangible discount on the sentence which, otherwise, would have been imposed. 

(v)I also take into account, as a very important factor, the restitution made to your victims, even though it has come very late and after much hardship to them and is not from your own pocket.  However, the fact that your partner and sister and brother-in-law have been prepared to take this risk on your account and come to court to support you is a very significant factor.  You can be assured, Mr Gakis, that were it not for such restitution, I would be ordering you to serve a far longer term of imprisonment than I am imposing today.  You should be very grateful to all of those people for such support.

It seems to me, in all circumstances, that it would be appropriate to give you a chance to show that the rehabilitative gains that you have made are not purely directed towards creating plea material for this case and that you will go out and get work and repay your partner and family. 

There was no psychological material tendered on your behalf, and, notwithstanding the reference in his Honour Judge Shelton’s sentencing remarks back in 1998, your counsel did not suggest that you have been under psychiatric treatment for a Bi-polar Disorder.  You do have a history of drug abuse and it is possible that, in the past, it has played some role in your mood.  One can only hope that by the age of 48 years you have had a chance to think upon your wasted life and how many people you have ruined and hurt and perhaps, at last, turn the corner.  Although, personally, I have a guarded view about your prospects of rehabilitation, it would be wrong of this Court to ignore the apparent gains that you have made in the last couple of years.

18      Your counsel told the Court that in 2004 your shoulder was injured in motor vehicle accident.  Apparently, you require some form of reconstructive surgery on that shoulder and a report has been tendered from Mr Roderick Cunningham, orthopaedic surgeon, dated 4 October 2013 (Exhibit “2”).  This states that you give a history of persistent pain and restriction of movement in the right shoulder, since you first saw him on 7 August 2006, although he states that the procedure is not necessary and is of an elective nature.  Also, tendered as Exhibit “3”, were clinical notes from the general practice which you attend at 131 Upper Heidelberg Road, Ivanhoe.  This notes that you are currently on codeine phosphate, 30 milligrams, twice per day for shoulder pain and spasm, as well as Valium, 2 milligrams, twice per day for muscle spasm.  It also notes that you are on Lorazepam, one at night for insomnia and anxiety, and Xanax, 0.25 milligrams, once or twice a day for panic attacks.  According to the clinical note of Dr Tri Nguyen, at that practice on 30 January 2014, it seems that your anxiety was primarily related to this upcoming court case and you were asking to be admitted to the Albert Road Clinic to manage that anxiety.  However, your counsel conceded that there was no psychiatric or psychological diagnosis that would attract the principles in R v Verdins.[1]

[1](2007) 16 VR 269

19 Since the adjourned plea hearing on 26 February 2014, I have received a Community Correction Order Assessment Outcome Report, dated 26 March 2014 which assesses you as suitable for such an order. The author of that report comments that you showed little insight into your offending and were deflective when asked about your current offences. This reinforces my guarded view as to your prospects of rehabilitation. Nevertheless, having taken into account all of the matters in your favour, I have determined that relevant sentencing objectives can be appropriately served by making an Imprisonment and Community Correction Order pursuant to s44 of the Sentencing Act.

20      On Charge 1, you are convicted and sentenced to be imprisoned for a period of three months.  I declare a period of 47 days pre-sentence detention (excluding today) to be time reckoned as already served under this order.  In addition, I order that you serve a Community Corrections Order for period of two years and nine months.  The order will commence immediately upon your release on 25 May 2014.  The terms of the order are that:

(a)you must not commit, whether in or outside Victoria during the period of the order an offence punishable by imprisonment;

(b)you must comply with any obligation or requirement prescribed by the regulations;

(c)you must report to and receive visits from the Secretary or Secretary’s delegate during the period of the order;

(d)you must report to the Community Corrections Centre specified in the order within two clear days after the order coming into force;

(e)you must notify the Secretary or delegate of any change of address or employment within two clear working days after the change;

(f)you must not leave Victoria except with permission, either generally or in relation to a particular case of the Secretary;

(g)you must comply with any directions given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.

21      In addition, the following conditions apply:

(i)        that you undertake 200 hours of community work;

(ii)that you undergo assessment and treatment and rehabilitation for drug abuse;

(iii)that you undergo psychological assessment and treatment as directed; and

(iv)that you undertake any program that is recommended in order to reduce the risk of reoffending.

22      Mr Gakis, I can only make such an order if you consent to it.  You must be aware that breach of such order will constitute an offence and that you will be brought back before me to be dealt with for such breach.  Do you understand that?

23      PRISONER:  Yes.

24      HER HONOUR:  Do you consent to the making of the order?

25      PRISONER:  Yes.

26      HER HONOUR:  On Charge 2, you are convicted and sentenced to undertake a Community Corrections Order for a period of 12 months concurrently with the Community Corrections Order on Charge 1.  The terms and conditions of that order are identical to those imposed in relation to Charge 1, save that there is no condition as to community work.  This order is to commence on the same day, namely, 25 May 2014.

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