Director of Public Prosecutions v Gavriel

[2016] VCC 377

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-00691

DIRECTOR OF PUBLIC PROSECUTIONS

v

ALEX GAVRIEL

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:	31 March 2016
DATE OF SENTENCE:	31 March 2016
CASE MAY BE CITED AS:	DPP v Gavriel
MEDIUM NEUTRAL CITATION:	[2016] VCC 377

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Barry
For the Offender	Mr P. Smallwood

HIS HONOUR: 

1Alex Paul Gavriel, you can stay seated for the time being.  You have pleaded guilty to an indictment charging you with one offence of using your position as a director dishonestly with the intention of gaining advantage between 29 May 2012 and 13 December 2012 and you admitted prior court appearances and convictions.

2The maximum term of imprisonment for the offence to which you have pleaded guilty is five years.  The prosecution has tendered and relied upon outline of prosecution opening for sentence indication, which I will mark Exhibit A and an outline of the Crown submissions on sentence indication which I will mark Exhibit B.  I am not going to read those documents again.  I incorporate them into my reasons for sentence in their entirety. 

3The offence to which you have pleaded guilty is a serious offence.  It was committed over a period of time, did involve a breach of trust, involved quite a substantial sum of money, $137,071, and it involved 20 separate instances of dishonesty in circumstances where you knew perfectly well what you were doing, knew you were not entitled to it, knew that you were acting dishonestly.  The money was taken for your personal benefit in circumstances where you knew the company was in trouble and had debts which turned out to be something in the order of $200,000 owed to creditors.  So it is serious offending and offending which ordinarily should attract a term of imprisonment.  Indeed, I am persuaded that it is an offence of a kind which cannot be dealt with by any punishment other than a term of imprisonment, albeit one which for the reasons that have already been canvassed can and will be wholly suspended in effect so that you will be released on a recognizance release order forthwith.  I will come to the sentencing in due course. 

4The plea that was put on your behalf is summarised in an outline of submissions which is dated 29 March and is Exhibit 2 and is supported by the references to which my attention has been drawn in the course of the plea and which are Exhibit 1 on the plea hearing. 

5As with many people in your position many good things can be said about you and it would seem that you have been a hard worker and successful and that people speak well of you.  It is unfortunate that you should have engaged in this conduct and you were tempted and you fell to the temptation. 

6I incorporate the outline of submissions into these reasons in their entirety.  I do not propose to go through them in detail.  I accept that you are remorseful in the cold light of day although you were not particularly cooperative in the investigation of the offences and I accept that your prospects of rehabilitation are good.

7It is necessary to impose a sentence that is of a severity that the facts of the case require.  It is also necessary for me to take into account a number of matters in your favour, particularly under the headings in s.16A(2) of the Commonwealth Crimes Act.  As I have indicated, I am satisfied that no other punishment other than a term of imprisonment is appropriate in this particular case, having regard to the seriousness of the offending in the period over which the offending was conducted. 

8The sentence that I have in mind will be a sentence which will enable your immediate release. You must realise that that sentence will be having over your head for a period of three years and I will be releasing you on a recognizance in the sum of $30,000.  So you run the risk if you commit a further offence punishable by imprisonment of losing the $30,000 and also serving the whole of the term of imprisonment that I intend to impose upon you.  You realise that?  So it is important that you do not commit any further offence punishable by imprisonment during the next three years. 

9With all of that in mind and having regard to the comparative sentences that have been imposed in other cases of a broadly similar kind, I am ready now to impose sentence upon you.  Would you stand, please? 

10For the offence to which you have pleaded guilty of using your position as a director dishonestly with the intention of gaining advantage, I sentence you to imprisonment of a period of 20 months.  That sentence will commence today and you will be released forthwith upon entering into a recognizance sum of $30,000, be of good behaviour for a period of three years from today and I have already indicated to you the consequences of your failure to be of good behaviour during that period. 

11But for your plea of guilty I would have sentenced you to imprisonment for a term of 25 months and I would have required you to have served a period of that term of imprisonment of five months.  Is there any other order I need make?

12MR BARRY:  I don't believe so, Your Honour. 

13HIS HONOUR:  The recognizance obviously will have to be drawn up.  Do you have a copy of a pro forma recognizance?

14MR BARRY:  My instructor has - is able to email it to the associate if need be and ‑ ‑ ‑

15HIS HONOUR:  I do not know whether we have got one on the system, have we, pro forma?  No.  Can you email it to my associate, please?

16MR BARRY:  Thank you, Your Honour. 

17HIS HONOUR:  Take a seat. 

18MR BARRY:  Yes.  My instructor tells me it'll take a few minutes, Your Honour.

19HIS HONOUR:  Yes. 

20MR BARRY:  The details need to be inserted.

21HIS HONOUR:  Yes, all right.  Well look, I will leave the Bench while that is being done.

22MR BARRY:  Thank you, Your Honour.

23HIS HONOUR:  And yes. 

24MR SMALLWOOD:  Your Honour, can I just raise one matter?

25HIS HONOUR:  Yes. 

26MR SMALLWOOD:  The trial was listed to commence on Monday of next week, 4 April.

27HIS HONOUR:  We will vacate that date.

28MR SMALLWOOD:  As the court pleases.

29HIS HONOUR:  Yes.  Thank you.  So the trial date of 4 April is vacated.  All right.  I will stand down. 

30(Short adjournment.)

31Mr Smallwood, would you accompany my associate to your client so that he - and make sure that he understands what he is saying.

32MR SMALLWOOD:  As the court pleases.  Your Honour, Mr Gavriel has signed the recognizance.

33HIS HONOUR:  All right.  All right.  All right, well that is now in place, you may leave the dock.

34OFFENDER:  Thank you, Your Honour.

35MR BARRY:  Thank you, Your Honour.

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