Director of Public Prosecutions v Giannakos
[2015] VCC 1951
•16 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-14-00605
CR-13-01584
CR-14-01386
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANTONIOS GIANNAKOS |
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JUDGE: | Her Honour Judge Sexton | |
WHERE HELD: | Melbourne | |
DATES OF HEARING: | 24th – 26th, 31st August 2015, 2nd – 4th, 7th – 11th, 14th, 21st – 25th, 28th, 29th September 2015, 1st, 9th October 2015. | |
DATE OF SENTENCE: | 16 October 2015 | |
CASE MAY BE CITED AS: | DPP v GIANNAKOS | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1951 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords: Pleaded guilty to twelve charges of obtaining financial advantage by deception, and one charge of attempting to obtain financial advantage by deception, found guilty of making and using a false document, obtaining a financial advantage by deception and handling stolen goods – accused ran caravan manufacturing business – ran into financial difficulty – wrote cheques with insufficient funds – reputation of business adversely affected following “A Current Affair” episode – received stolen caravans and changed their identification for re-sale – created false invoices – sold stolen caravan to customer – lengthy and serious offending but no benefit gained -
Sentence: Convicted and sentenced to 3 months’ imprisonment – followed by CCO of two years with 350 hours community service work – fined a total of $3,000.00.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. D’Arcy | OPP |
| For the Accused | Mr V. Peters Ms Y. Mik | Allan McMonnies |
HER HONOUR:
1 Tony Giannakos, on 2 September 2015, you pleaded guilty to two charges of obtaining a financial advantage by deception, an offence with a maximum sentence of 10 years’ imprisonment. These charges are on Indictment No. D12204703.1.
2 On 29 September, following a trial, you were found guilty of making and using a false document (charges 1 and 5), and obtaining a financial advantage by deception (charge 6), which are all offences with a maximum sentence of 10 years’ imprisonment, and five charges of handling stolen goods (charges 2-4, 7-8), an offence with a maximum sentence of 15 years’ imprisonment. These charges are on Indictment No. D10811221.3.
3 On 1 October, you pleaded guilty to ten charges of obtaining a financial advantage by deception, and one charge of attempting to obtain a financial advantage by deception, which has a maximum sentence of 5 years’ imprisonment. These charges are on Indictment No. C1309303.1.
4 All of these charges arise out of the financial difficulties in which you found yourself from 2011 to 2013.
5 You began a caravan manufacturing business under the name Champion Caravans in 2011. While the business had a reasonably promising start, you were not a good businessman, and you made mistakes, including incurring ongoing costs that you could not manage. I was told by your counsel that you were generous to your customers, for example, offering discounts, which meant that you had a low profit margin, and paying for their accommodation if interstate customers came to Melbourne to take delivery. As a result of a combination of these poor business decisions, by the end of 2011, the business was in financial difficulty.
6 A summary of the charges on Indictment No. C1309303.1 follows. On 10 occasions between October 2011 and November 2012, you wrote cheques for costs for supplies, and rental for your showroom and office premises, as well as to the Sheriff’s Office for a judgement debt arising out of an advertising contract. At the time you wrote these cheques, insufficient funds were in the business cheque account, which you knew, and the cheques were dishonoured. Consequently, you dishonestly obtained a financial advantage by the evasion of the debts.
7 The prosecution concedes that six of these ten debts were met within 3 days to 3 weeks after the cheques were written (charges 1, 2, 4, 5, 6, and 8). Included in these repayments are the largest amounts of money on this indictment, approximately $85,000.
8 One of these debts was only partially paid, but I was told by your counsel that the supplier did not seek the balance (charge 5). For charge 3, which was a payment for rent for the month of May 2012, while there are no bank records of payment being made, your counsel submitted that it must have been paid or you would have been evicted. Charge 10 was also a payment for rent, which you instructed your counsel was paid by bank transfer, but you do not have the relevant bank statements to confirm this. However, I accept that the evidence shows that you remained in possession of those premises at least until the end of 2012.
9 As to the remaining two debts, you instructed your counsel that the amount in charge 7 was paid by cash, and for charge 9, you instructed your counsel that there were sufficient funds at the time the cheque was written, but it was dishonoured when presented two weeks later, the delay arising from the Sheriff’s Officer apparently waiting to hear as to whether that part payment was acceptable.
10 The final charge, charge 11, arose from your offer to pay the Sheriff’s Office $23,000, but a review of your account by the Sheriff’s Officer showed that there were insufficient funds to meet that payment had the cheque been received. This last charge relates to late November 2012.
11 During the course of 2012, your business took deposits for caravans to be manufactured, but you were not always able to deliver the finished product. Some customers became extremely disgruntled and took their story to the television program called “A Current Affair”. A series of episodes were shown between November 2012 and January 2013. Two of the unhappy customers appearing in the program were filmed asking you for a return of their deposits. Your counsel told me that “to try to keep the business in a good light, and under duress”, you gave each of the customers cheques ($10,000 for charge 1, and $30,000 for charge 2 on Indictment No. D12204703.1), even though you say that under the terms of their contracts with you, they were not entitled to a refund of their deposit.
12 You have pleaded guilty to these two charges. Whatever your reason for writing the cheques, the fact remains that you wrote them knowing there were insufficient funds to cover them.
13 The fallout from the series of episodes of “A Current Affair” concerning your business was that you were unable to continue to use the business name of Champion Caravans. Your business reputation took a major blow. You suffered financially, as the bank foreclosed on the mortgage on the house you and your wife built, and you, together with your two children, moved into the two bedroom unit where your wife’s parents live.
14 The prosecution case on the trial (Indictment No. D10811221.3) was that this downfall led you to try to make money from illegal activities involving caravans. You denied this, and still maintain that you had nothing to do with the stolen caravans, and that others were involved.
15 By their verdict, the jury showed that they were satisfied beyond reasonable doubt that you had made and used a false invoice in the name of another caravan manufacturer (charges 1 and 5), and that you lied to a purchaser about the manufacture of the caravan he was purchasing and obtained from him $70,000 as a result of that lie (charge 6). That money was paid into an account called ‘Funky Customs’. There was evidence capable of being used by the jury that you sought the payment from the Queensland purchaser[1], provided him with the Funky Customs bank account details[2], and were aware of the money being paid into that account[3].
[1] Trial Evidence of Kerry Bunting; Exhibit C on the trial
[2] ibid
[3] Trial Evidence of Xeng Lor and Kerry Bunting; Trial Exhibit C and Trial Exhibit P which was found in possession of the accused.
16 The jury were also satisfied that you were involved in receiving six[4] stolen caravans (charges 2-4, 7-8). The prosecution relied on circumstantial evidence which connected you to the factory where five of the six stolen vans were found, and on direct evidence of you handling the sixth van, the subject of charge 4, by delivering it to the purchaser in Queensland. There was evidence capable of showing that this van had been at the factory, because items identified as belonging to it were found at the factory.
[4] Charge 3 included two caravans
17 The evidence showed that two other men were associated in some way with the factory at which the stolen vans were found. These men were Christopher Peroulis, the owner of Funky Customs, the panel-beating business located in the factory next door, and an employee of his, Beau Ioannides. The evidence showed that Mr Peroulis had keys to the factory at which the stolen vans were found, and Mr Ioannides was the sole director of True Blue Caravans, a business registered at the factory address in March 2013 and the name of which was on the stolen caravan delivered by you to the Queensland purchaser.
18 However, from the information provided to me at your plea hearing[5], it can be seen that neither of these men were ever dealt with by a court in respect of the stolen vans. On 19 May 2014, at the Melbourne Magistrates’ court, Mr Peroulis was convicted and fined $2000 for negligently dealing with the proceeds of crime. This is an offence with a maximum of 5 years’ imprisonment, with two years being the maximum penalty which can be imposed in the Magistrates’ Court. The summary of that offence shows that the proceeds of crime was the $70,000 paid by the Queensland purchaser into the Funky Customs bank account.
[5] Exhibits C, D and 1 on the plea
19 Although the summary states that “these funds were withdrawn from the account and passed by onto (sic) Mr Giannakos”, I accept that there is no evidence that you received the funds into your bank account. The prosecutor submitted on the plea that following the receipt of the funds in the Funky Customs bank account, apparently payments were withdrawn from that account over time but it was conceded that there is no matching of those amounts with payments made or received by you.
20 On 3 April 2014, Mr Ioannides had charges of handling, knowingly dealing with the proceeds of crime and recklessly dealing with the proceeds of crime withdrawn, and was convicted and fined for negligently dealing with the proceeds of crime. I did not receive a summary for his offending. Even assuming that the handling charges which were originally laid dealt with the same subject matter as your charges, that is, stolen vans, his charges did not proceed.
21 Therefore, while you instructed your counsel that your only involvement with the factory and the vans was that Mr Peroulis offered you work on the caravans and you jumped at it, that position is not in keeping with the finding of guilt on the handling charges by the jury. There is nothing on which I can base a finding that Mr Peroulis or Mr Ioannides were involved with the stolen caravans, and there is no charge which can form the basis of parity between you and these men.
22 To the extent that the offence summary for the charge of negligently dealing with the proceeds of crime brought against Mr Peroulis relates to the same $70,000, I do take into account that he was dealt with on a plea of guilty in the Magistrates’ Court, and received a fine, and that he had relevant convictions for dishonesty. You have no prior convictions but were charged in this court with a different offence relating to the $70,000 that has a maximum of 10 years’ imprisonment and were found guilty after a trial. Clearly, there are differences which prevent me from treating you and Mr Peroulis equally in relation to the $70,000.
23 In summary, I sentence you on the basis of the following findings:
· Over a period of 13 months, in an attempt to cover debts arising from your business, you dishonestly wrote 12 cheques totalling almost $150,000 which were dishonoured;
· Most of the people to whom the cheques were addressed were repaid within a short time, with only about $40,000 still outstanding;
· In late 2012, the Queensland purchaser paid you a deposit of $22,000 which I accept was received by you at the time as a genuine business transaction for the manufacture by Champion Caravans of two caravans for him;
· In early 2013, you used the name of another caravan manufacturer to create a false invoice which you then used to dishonestly obtain a further $70,000 from the Queensland purchaser, by lying about who was making the caravans, instead intending to sell him stolen caravans altered to look like a different brand of van;
· You delivered a stolen van to the purchaser in Queensland, which was later seized by police;
· That purchaser was left without any caravans to show for his payments; and
· In that same period, you received six stolen caravans, including the one delivered to Queensland, with a total value of about $400,000, and I am satisfied that you were involved in altering their identification for re-sale.
24 This was a sustained period of dishonesty, which escalated from dishonoured cheques of sometimes small amounts in the hundreds of dollars to a large scale operation to alter the identification of stolen caravans worth many thousands of dollars.
25 While I am satisfied that you did not make any money from your dishonest activities, and the offending relating to the cheques was committed in an effort to keep your business running, I find that the length of the period of criminal activity, the escalation in the offending, and the value of the goods involved increases the seriousness of your overall offending.
26 Against this serious offending, there are some matters that I must take into account in your favour. The first matter is that you pleaded guilty to the charges involving the dishonoured cheques. Although the pleas were not entered at an early stage, I accept that this was not because of any delay on your part. The prosecutor very fairly conceded that the two trials involving a large number of allegations of dishonoured cheques could not be resolved until the documentation was carefully looked at by the prosecution, and that had not been provided and inspected before this matter came on for its second trial date, having first been listed for August 2014. I accept therefore that your pleas of guilty in the remaining dishonoured cheque charges have saved the community the time and cost of two trials. Your sentence on those charges will be less than if you had been found guilty after a trial. The pleas of guilty also reflect some remorse for those charges.
27 Next, I take into account that you have no previous convictions and so are to be sentenced as a person of good character before this period in your life. Further, you have been in no further trouble since these charges were laid, which is over two years now.
28 Next, I heard evidence from two men who had worked with you in cleaning jobs before you went into business for yourself, and who said that they considered you to be trustworthy and honest. One said that you were generous and very trusting, and had a good work ethic to build up your business, but that you were not so good at running the business. Both said how the programs on “A Current Affair” had devastated and ruined you.
29 I was told about your background and personal circumstances which I take into account. You were born and grew up in Greece where your family ran a restaurant until it closed due to the economic downturn in Greece. You completed your compulsory national service, and through your father, you became interested in steel fabrication. You met your wife in Greece and married in 1995; she is of Greek heritage born in Australia and had returned to live in Greece with her parents. You came to Australia with her, and her parents, in 1996. Within days of your arrival you obtained cleaning work with one of the men who came to give evidence on your plea. You and your wife worked part time in this work for 10 years, and you also obtained full time work in a number of places until you did a traineeship as a cabinet maker in the caravan industry, beginning in 2002. Your children were born in 2000 and 2009.
30 In 2010, you began your first business, and then in 2011, set up Champion Caravans. Through your hard work, you purchased a home, which was later sold and you then built the home that was later re-possessed in late 2012 or early 2013. After a month living in a caravan at the Champion Caravans showroom, you and your family moved in with your wife’s parents. The rest of your family remains in Greece.
31 As your counsel said, by early 2013, you were effectively homeless, had no income, and had no prospects of income due to your shattered reputation. Also, from 2008, you have suffered from anxiety and a depressive illness which has been managed by your general practitioner and treated with medication. According to Dr Romas[6], you remain on a high dose of Effexor. These were the circumstances that existed at the time that the more serious offending took place.
[6] Exhibit 2 on the plea
32 You are now aged 43 years, and since 2013, when the charges were laid, you have been helping your wife doing some cleaning work but have not pursued any other employment while the trials were pending. You spent 8 days in custody over two periods of time when charges were laid, before being released on bail on each occasion.
33 Your counsel submitted that I should find that you are unlikely to reoffend. While I accept that you are unlikely to be in business again and if you are, I am not so sure that you may not again fall into the trap of writing business cheques with insufficient funds. The more serious offending of course, is said to have arisen in the circumstances that you were then in. The problem is that you are still in those desperate circumstances, so the motivation may still exist. On the other hand, you have not committed any offences in the past two years while still in those circumstances and your family is now in your own rental housing.
34 On balance, I find that you are unlikely to re-offend in the same way. You are prepared to work hard in more than one job, even if it is not in your preferred occupation of cabinet making, and together with support from family and friends, your prospects of rehabilitation are reasonable.
35 However, I do find that the sentence I impose must try to deter you from re-offending again, and also deter others from committing such crimes.
36 Application has been made for an intimate forensic sample to be taken from you and you have consented to this. I am satisfied that it is in the interests of justice that in all the circumstances, I order that an intimate forensic sample, namely saliva, be taken from you. The sample may be taken by a doctor or nurse or other authorised person. A saliva sample is taken by wiping a swab inside your mouth. Although you have consented, if you change your mind I must inform you that the police may use reasonable force to enable that procedure to take place.
37 Finally, I take into account that you have consented to the forfeiture of a large number of items seized by the police. Further, I note that none of the people affected by your crimes, who lost money or property, took the opportunity to make a statement about the impact of your crimes on them, and none of those who remain out of pocket have asked the court to order that you repay them.
38 Your counsel conceded that a term of imprisonment is an available option. Of course, a sentence of imprisonment must be the only available sentencing option before it can be imposed. Your counsel submitted that in the event that I reach this conclusion, the sentence of imprisonment should be wholly suspended, and that a term of actual imprisonment would not serve the purposes for which sentence must be imposed in this case. It was also submitted that a community correction order was an available option.
39 I initially ordered that you undergo an assessment for such an order, but as I decided that if I did impose a community correction order, the only condition would be of unpaid community work, an assessment was not needed.
40 The prosecutor submitted that a sentence of imprisonment should be imposed. He further submitted that you should serve some time in prison. Although he conceded that a prison term of more than three years was not necessarily required in the circumstances of your case, and a prison sentence in this case is able to be suspended due to the dates on which the offences occurred being before suspended sentences were abolished as a sentencing option.
41 In respect of the charges to which you have pleaded guilty, I have reached the conclusion that I do have an alternative to imprisonment on those charges. I propose to sentence you to pay fines. I realise that you have no current income, but you may apply to the court to pay by instalments or convert the fines to unpaid community work. Your lawyers will advise you about this. I will announce those orders first.
42 The order of the court is, on Indictment No. D12204703.1, you are convicted and fined on both charges of obtaining a financial advantage by deception an aggregate fine of $1000.
43 On Indictment No. C1309303.1, you are convicted and fined on all charges of obtaining a financial advantage by deception and one charge of attempting to obtain a financial advantage by deception an aggregate fine of $2000.
44 I will order a stay of payment of six months to allow you time to get legal advice and decide if you want to apply to pay by instalments or convert to unpaid community work. So in other words you do not need to pay that amount immediately but of course you may pay it before the six months is up.
45 On the charges on which you were found guilty at trial, after careful consideration, I have decided I have no alternative to a sentence of imprisonment. Further, the seriousness of those offences means that you must spend some time in prison, even though you have not committed any offences before this period in your life. However, on these charges, because of the matters in your favour, the prison sentence you will serve is a short one of three months and then you will be released on a community correction order for two years.
46 A community correction order has compulsory conditions attached to it which are as follows: you must not commit, in or out of Victoria, during the time of the order which will be two years, an offence punishable by imprisonment; you must comply with any obligation or requirement that is placed on you by Corrections Victoria; you must report to and receive visits from Corrections Victoria during the period of the order if required; you must report to the Community Corrections Centre closest to where you live within two clear working days after the order comes into force. And this will be information contained on the order that you receive. This, of course, will be two days after you have been released from prison. The next compulsory condition is that you must notify Corrections Victoria of any change of address or employment within two days of that change. During the period of the order you must not leave Victoria except with the permission of Corrections Victoria, and you must comply with any direction given by Corrections Victoria. So those are what are called the core conditions, and I will also impose a special condition that you do 350 hours of unpaid community work.
47 I have just read out to you the conditions which are attached to a community correction order and also the special condition of 350 hours of unpaid community work. Do you understand those conditions? Do you agree to be released on a community correction order with those conditions?
48 If you are ill during the period of the order or there are exceptional circumstances, the order may be suspended for a period of time. If your circumstances change, for example, if you get a full time job, you may apply to the court to vary or cancel the order. In either case, you must notify the Community Corrections office, and I recommend you also get legal advice.
49 If you do not comply with a condition of the order, you will be brought back before me to be re-sentenced and dealt with for the breach of that condition. What will happen then will depend on a number of circumstances, but you should be aware that my options are limited, and one of those limited options is more gaol time. Do you understand what may happen if you breach a community correction order?
50 I have taken into account that charges 1, 5 and 6 on the trial indictment involve the same conduct and charges 2-4, 7-8 on the trial indictment involve the same conduct. I propose therefore to impose two aggregate sentences. This means that there will be one community correction order for charges 1, 5 and 6, and one term of imprisonment for charges 2-4, 7-8.
51 The order of the court is as follows:
52 On Indictment No. D10811221.3:
53 On Charges 2, 3, 4, 7 and 8 – Handling stolen goods, you are convicted and sentenced to an aggregate term of imprisonment of 3 months.
54 I declare that you have served 8 days in custody for these offences and that these are to be deducted administratively from your sentence.
55 On Charge 1, make a false document, Charge 5, using a false document, and Charge 6, obtaining a financial advantage by deception, you are convicted and sentenced to be released after you have served three months’ imprisonment on a community correction order for two years with the core conditions and a special condition that you do 350 hours of unpaid community work.
56 I have made the ancillary orders and they can be provided.
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