Director of Public Prosecutions v Goris
[2019] VCC 261
•6 March 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 17-02191
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| JAMES GORIS |
---
| JUDGE: | HIS HONOUR JUDGE GUCCIARDO |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | 6 March 2019 |
| CASE MAY BE CITED AS: | DPP v Goris |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 261 |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms C Teague | |
| For the Accused | Mr A Marshall |
HIS HONOUR:
1James Goris, you have pleaded guilty to three indictments and to related summary offences. The Indictment ending 3385 alleged that you used fake documents to induce various financial institutions to open accounts to the prejudice of such institutions. This was a course of conduct charge which occurred between 17 September 2012 and 31 March 2013.
2On the same indictment, you pleaded to obtaining property by deception between 1 November 2016 and 22 November 2016, by dishonestly obtaining the transfer of ownership of shares to the value of over $3.3 million by deception.
3The second indictment, ending 3385.1, alleged possession of child pornography on 22 November 2016.
4The third indictment, ending 01009, contained a charge of making, using, or supplying identification information which related to various items of Victoria Police identification, between 6 July 2016 and 13 October 2016.
5Summary offences related to the possession of a prohibited weapon - namely, a slingshot - on 22 November 2016, possession of cartridge ammunition, and dealing with property suspected of being the proceeds of crime was dealt with by way of your plea.
6The circumstances of your offending are summarised in some detail in the prosecution opening, three of them which pertain to each indictment.
They have been exhibited, and will be retained on the court file. For purposes of the sentence, I will briefly outline the circumstances.7At the time of the offending, you lived in Castlemaine. You were employed by a company called Computershare between May and August 2011. Computershare is a stock transfer company. This employment would have allowed you to access personal financial information about the company's clients, and in the relevant period you undertook a course of conduct to use the identity and personal information of a client in order to obtain the client's share holdings.
8The victim, Mr Holt, lived in New South Wales and was aged in his 90’s.
He was a pensioner and lived alone and did not have internet or email access or a mobile phone. He had accumulated shares over his lifetime of hard work but had no idea his portfolio was worth over $3.35 million.9Between September 2012 and March 2013, you opened 21 bank accounts and Credit Union accounts in the name of Mr Holt. You applied for these accounts online or by fax. You gave your email address as [email protected]. On each occasion, you used fraudulent or altered documents to apply for and obtain the accounts.
10You also created three false Victoria Police certification stamps which you applied to some documents to support the applications. Some of the false documents were false Australian passports in the name of Holt, false electricity bills and a birth certificate in the name of Kenneth Holt, each purportedly certified with the false police stamp.
11You did not use any of these accounts. It may be that you had a purpose in mind when you opened them related to what took place thereafter in relation to Mr Holt. I do not make that finding and will not speculate about it. What is clear is that from your brief stint at Computershare, you engaged in a course of dishonest conduct which involved Mr Holt's information and identity, which culminated in 2016.
12In late October, you obtained a PO box in Sydney. You registered a phone number in Mr Holt's name and redirected his mail to the PO box. You used Computershare Online Investor Portal to change Mr Holt's address to the
PO box you had set up. On the same day, you called Mr Holt on a pretext to give him false information.13In late October, you created a shareholding company, KH, and named Holt as director. You met Mr Holt twice in October at his home, claiming to be from the Sydney Stock Exchange, and that money was owed to him. You went there a third time with what you said was a statutory declaration relating to non-receipt of mail from Computershare. Mr Holt signed it.
14You called his home a number of times and waited for him to answer without then speaking, for your own mischievous purposes.
15In early November, you went to Marrickville police station and had a constable certify that a photocopy of Mr Holt's Medicare card was a true copy. He did so by affixing a stamp. You later copied the stamp and the constable's signature onto a company statement issued by KH, naming Holt as the director.
16On 19 November, using Mr Holt's identity, you submitted to Computershare written-off market transfer requests to transfer Mr Holt's shares to KH. Computershare called the number you had provided to them for validation checks on Holt, and you answered the call, identifying yourself as him.
You confirmed other pertinent details during the call and Computershare transferred the entirety of Mr Holt's shares to KH, which was in your exclusive control, to the value of $3,335,609.35.17By 23 November 2016, you would have been in a position to sell the shares for your own benefit. However, fortuitously, on 22 November, a search warrant was executed at your premises by police who were investigating your manufacture of false identification items the subject of another indictment, and evidence in relation to this current offence was uncovered.
18This coincidence prevented you from benefiting from the shares you had obtained. You had written out in notebooks the various steps undertaken by you to obtain the victim's shares, and what you intended to spend your profits on, including a Porsche 911, houses and other financial benefits.
19Many of the items used by you in the course of conduct were found, including documents relating to the extended family of Mr Holt, maps of Mr Holt's home, and prompt sheets containing instructions for yourself as to how to answer the phone. Also found were details of the victim's family members. You had conducted other searches and ancestry searches related to Mr Holt. Those were found in a storage facility used by you.
20You were arrested and offered feeble excuses for assuming Mr Holt's identity. In a second interview, you made no comment. The shares were returned to
Mr Holt.21Mr Holt has provided a victim impact statement. In this document, he says that he is 92 years old and that your offending had a major impact on his life.
Your behaviour caused sleeplessness and consternation. Access to his money became more difficult as stop orders had been placed on his accounts, and higher levels of verification were required when dealing with his shares. He has diligently saved his money since 1939, when at age 14, he began work, and this circumstance has caused him great upset and uncertainty. I take this victim impact statement into account.22Using false documents carries a maximum penalty of penalty of ten years.
This is also the maximum penalty for obtaining property by deception. I note for the court's records that this second charge involves an amount above $50,000. Therefore it is a relevant offence under s.6H of the Sentencing Act, and it is a continuing criminal enterprise offence. That will be noted on the final orders for the records of the court.23This offending was particularly egregious and serious. Your moral culpability
I consider very high. The course of conduct begins in 2011, when, as an employee of Computershare, you obtained information of Mr Holt.
The timeframes here are relevant to properly evaluate your criminality.
This course of conduct was in gestation for a period of a number of years, and when you sought to activate your plan to obtain the shares for your benefit, you went about the deception with sophistication and significant detailed planning.24This was not a slapdash con. This was a well-thought-out and calculated manoeuvre on your part. That the victim was an elderly man is reprehensible, but you compounded this abhorrent deceit with personal approaches during which the use of subterfuge and falsehood you put together the final touches to your dishonest scheme in a callous and calculated deception of Mr Holt.
Your breach of trust began at Computershare and continued thereafter, motivated by greed and entitled disregard for the victim or his property.
Your conduct must be denounced in no uncertain terms and justly punished.25General deterrence is paramount to discourage and send a clear message to the community, and to those sophisticated charlatans and tricksters, that such conduct will be punished by stern consequences. The level of planning here involved, and the high value of the amounts involved, in my view mean that specific deterrence is also of primary importance. You are obviously skilled and intelligent, and such level of criminality must be deterred in order to dissuade you from further similar offending in the future.
26On November 22, the police also searched your home address and they seized a laptop and an iPhone. The police e-crime unit carried out an analysis of the contents of a hard drive and the iPhone, and they located images of child exploitation.
27Three hundred and twenty images were found; 315 of those were in Category 1, which contains no sexual activity, but primary of teenage girls in sexually suggestive poses. Several of the images contained upskirting shots of girls in uniform in various places in Victoria. Two images were Category 2, solo sex acts by children, described in the summary. Three images were Category 4 of child/adult penetration of a young girl, performing oral sex on adult males.
Fifty-three images on the iPhone were child abuse material. All of those were in Category 1. A number of sexually explicit child abuse memorandums were also found in the Notes application on your phone.28The maximum penalty for this charge is five years' imprisonment. I have been provided with sentencing snapshots for this offence, as well as summaries of recent decisions, both of which I have reviewed in some detail. This offence is not a victimless crime. The upskirting images are local and seek to prove and emphasise that the children in these vile images are real, and that their exploitation is real and traumatic.
29The access and possession of such material fosters their production and dissemination, and constitutes criminal behaviour which warrants denunciation and punishment. You offered no explanation for such possession but invariably, it must by inference be tied to such base sexual gratification which results in the most repulsive abuse of young children. I consider that general deterrence is paramount in this case.
30Although the bulk of the material is in the lower categories, and the number is relatively low when compared to other similar offending which comes before this court, nevertheless, the offending in my view is serious and in relative terms requires a term of imprisonment.
31Between July 2016 and October 2016, you created a large number of false identification items. You supplied it intending to facilitate the commission of indictable offences. The identification, outlined in the summary, were wallets, badges, ID cards for Victoria Police and Australian Federal Police. You worked from 2011 onward in information technology and had previously served with the Victoria Police between 2005 and 2010.
32You actively contributed to online forums about document and identity forgery. You preferred advice as to avoiding detection by law enforcement. You were uncovered by police when you took active part in an online marketplace, AlphaBay, using the alias "PirateDeadpool." AlphaBay was a website hosted on the dark web which hides user's IP addresses by encryption and routing. Police engaged with you using aliases to covertly purchase items from you from July 2016 in a section of AlphaBay named "Fraud."
33You offered to sell Victoria Police and Federal Police items in various names. Photos of persons were sent to you for you to manufacture false identification items. The completed items were sent back by you by post. The agreed price on one occasion was some US$3,136.
34Later that month, investigators became aware you were offering for sale aviation and maritime security identification cards in the "Fraud" section of the website, and the offer entice purchasers to use their imagination as to what the cards could be used for. An enquiry is forwarded to you as to whether the maritime cards would allow the holder to access Patrick's docks, and you replied with advice. On a later occasion, you advised the enquirer that a maritime card would allow the holder to gain entry into a major freight facility near Sydney Airport.
35On 1 August, investigators purchased a Victoria Police wallet, badge and identification card, two Victoria Police lanyards, and one aviation card identification, and one maritime card identification, for US$1,950. Photographs were sent to you and the completed items were posted back by you to the investigators.
36In early August, investigators queried some issues in relation to failed access to a local police station. You provided advice and information and instructions for easier access, which included advice that those in possession of a fake ID could sign out a car or a weapons kit.
37In September, another set of identification items were requested and produced by you for some AU$4,800. In late September, you made an anonymous tipoff to Crime Stoppers in relation to the fake police ID in a parcel sent to the letter box controlled by investigators. You made another such tipoff to Crime Stoppers the following day, stating three Glock handguns were being shipped to the same box. No items were in fact sent by you on this occasion.
38The investigators continued to engage with you, claiming the items they had paid for in September had not been received and lodged a dispute with the moderator for AlphaBay. The latter requested you to re-post the items.
You did so on 13 October.39On 22 November, you were arrested. During a search of your premises, police found and seized the items I mentioned at the beginning, being the slingshot, six .38 hollow point bullets and a number of items relating to the fake identification offences, including a number of badges from a number of states, the UK, as well as an Australian Protective Services badge. Further, police badges were found in a storage unit.
40Making, using or supplying identification information carries a five-year maximum penalty. Your offending, in my view, is serious. The fact that in a period before your offending you had been a police officer does to some extent, in my view, aggravate your offending. This background conferred upon you knowledge and information which made the items and their use, together with your advice as to their use, very serious and morally highly culpable.
41It would have been clear to you that such material could be used in the commission of serious criminal offences, unlawful behaviour which could encompass the access to sensitive and dangerous places, both in aviation areas, civil and otherwise. Maritime locations, vulnerable to all manner of interference, restricted or secure areas would be rendered vulnerable and individuals in the community as a whole be exposed to enormous risk by the nefarious use of such items.
42The potential for the use and advantage bestowed on those criminally minded by the possession of such items to render security systems vulnerable and give access to protected areas where weapons, information, resources and people is limited only, as you said, by the imagination.
43Many of these potential risks, including terrorist-related activities, are very serious indeed. You must have realised this. However, both the financial rewards, the relative ease of manufacturing the items and its distribution must have lulled you into a sense in which you were prepared to expose the community to be at such risk while benefiting yourself.
44This offending, I repeat, is of high culpability. In this age of identity fraud and the prevalence of identity theft, the increased ability through digital technology to engage in this conduct and the enormous potential damage, your offences are, in my view, of a gravity which objectively is of a high order.
45I take your plea of guilty into account. It has a utilitarian value in that it has avoided one or more criminal trials. However, the plea was entered relatively late when a trial or trials were about to proceed. I was informed that it was always indicated that you would plead to appropriate charges, and some negotiations were needed to arrive at a resolution. So in that sense, I will take into account that a willingness to plead was given early on. Your plea will reduce your sentence according to law.
46An assessment of your remorse is difficult. The letter tendered on your behalf from a friend, Ms Victoria Toogood, does not mention any such feeling, and the report from Mr Glowinski, a psychiatrist from Forensicare, dated 13 February 2019, also does not mention frank remorse.
47You have proffered either feeble explanations or a puzzled dumbfoundedness at your behaviour, which in the circumstances of your offending, particularly the deception and false document charges, betrays a lack of insight or an unwillingness to confront some or other motivating factors which may be at the source of this conduct. I shall return to this later when I mention the reports which were tendered.
48As to the offending, a number of issues were raised by your counsel. It was said that you did not access information from Computershare but discovered the details when you visited the complainant on a number of occasions in the past, and during your visits in the offence period. Although this appears to be implausible as a proposition, the alternative, which was propounded as an ameliorating factor, is in my view even worse.
49You told Mr Glowinski you had known Mr Holt for a long time through clubs and bars in the 90’s, that you had continued contact with him and came to know he suffered a stroke. You may have seen, as you told Mr Glowinski, some paperwork about significant shareholding strewn about his property. But this is an even greater breach of trust that if you obtained the information through your work.
50You told Mr Glowinski that your dealings with Mr Holt was "a cry for help." I find this explanation self-serving and implausible. Such conduct over a significant period of time cannot be properly described as such, given its planning and its essential deception. You had trouble explaining your behaviour, or rather, trouble admitting your true motivations. You told him you did it "to see how far you could go." This may be the beginning of an explanation, but you profess to a memory of these events which was "all a blur."
51It was argued you were not a skilled forger in that you used rudimentary copies and cheap and easily accessible tools to provide the identification. Even if this is so, you appeared to be confident that your fakes would be successfully used, and for all manner of purposes, and you advised the purchasers as such. Your intention and clear confidence in your work renders the argument about the quality of the forgery secondary. Whether you are a mediocre forger was adequately covered by your skills at selling.
52It was submitted as to the child pornography that the number and categories of images are low. I have already touched on this point which is objectively true and relevant but must be seen in the full context of the damage inflicted by the production, access and storage of such material.
53It was said that the fake ID offences is moderated by your notifications to Crime Stoppers. There is no explanation which can properly explain these calls.
I certainly have not been given any, and although the answers could span a spectrum from your regret to some provocation which you saw as beneficial to your long run, I do not have to decide this issue because it seems to me that it did not affect the outcome of the transactions, or the investigation, or the course of your criminality, for that matter.54It is true that ultimately you neither used the bank accounts nor had access to their shares or their value, but in both cases, the offences are concerned with the deception put in place to open the accounts and the sophisticated planning required to achieve the transfer of the shares.
55I take into account your personal circumstances. You have no prior criminal history. You were born in Melbourne and are 46 years old. Your parents were born in Greece and you have one sister. Your mother passed away in 2000. You have no current partner and no children. You completed Year 12 and then passed two years of a commerce degree at Monash University, before working at a bank.
56In 2005, you entered the Victorian police force. Your period in the force was marked by some significant matters to which I shall refer in a moment. You left the police force in 2010, but due to your mental health, you were unable to work for some 12 months. During this time, you became isolated and commenced taking drugs which you continued until your arrest.
57You had gained some employment in 2010 and 2011 in the IT industry, but you could not continue in employment. You went through 11 jobs in six years.
You assert that your memory of this period is nebulous, coinciding with this offending conduct.58During your time in the force, you collected police paraphernalia, insignias and regalia from most Australian states.
59You described some serious incidents occurring during your service in the police. You started, you reported, to experience psychological issues at the Fawkner police station. You became irritable, short-tempered and isolated.
60You described nightmares after a pursuit of an offender while on night shift which turned into a fight in a secluded area. You were hit and scuffled with the offender. Eventually, he ran off and was arrested. You realised he had an axe and a knife on him, but you had not been threatened with these. You were distressed and anxious after this and avoided giving evidence in court.
61Other incidents involving being threatened with a firearm, being bitten by an offender, and attacked by another offender with a sledgehammer, followed.
62You sought a transfer to Robinvale, but in truth, you were already disillusioned with this job. You reported that in this new location, the local sergeant at the station caused you much distress with frequent clashes and incidents involving belittling, undermining behaviour and dismissing of your reports. This may, in part, have been due to your status as an openly gay person. You felt you could not continue and you had attempted suicide on some four occasions.
63However, you did not seek psychological assistance. You felt you had no support or adequate response to your complaints. Mr Mckinnon, in his report, suggests that you had undergone an enduring personality change after what he called a catastrophic experience causing a disruption in your otherwise moral and law-abiding personality. But he added that this is not a permanent personality disorder.
64You resorted to substance abuse to function in the community and to work in this period as best you could. You have no contact with your father, who you described as being domineering and controlling with anger and alcohol problems. You have no contact with him or your sister since your mother's death. You lived with a male partner for four years from 1996 to the year 2000 and have had no other significant relationships since.
65You began using cannabis daily from 2007 until your arrest. In 2011 and 2012, you started to use cocaine. From 2009 to 2010, you used ecstasy regularly. You have drunk alcohol to excess and have also had involvement with sedatives, prescription Valium, and Oxycontin. These were said to be self-medicating, in effect, for your mood swings and emotional peaks and troughs.
66Mr McKinnon provided a report dated 9 December 2017, and that report highlights your early struggles with a very traditional father and the difficulties in the relationship as a result of your stance on your homosexuality. This early insecurity made you more vulnerable to the police incidents and susceptible to the influence of drug-taking.
67He suggested that you had suffered post-traumatic stress disorder. Mr Glowinski specifically dealt with the Verdins limbs one to four in his report, and was clearly of the opinion that he could not attribute the offending to any mental state, which was conceded upon your plea.
68Mr Glowinski noted no current psychiatric or psychotic symptoms, or symptoms of traumatisation. You appeared to have limited psychological self-understanding. You appeared to hold a view that you had been a victim of life's circumstances. And he came to a view, because of the prominence of this feature, your history is not entirely reliable.
69You offered Mr Glowinski some explanation for your offending as to the child pornography and false documents which appears unlikely and implausible.
You told him the pornography related to your longstanding desire to do covert operations for Victoria Police in attempts to apprehend criminals on dark web forums, and you proffered no sexual interest in the material. You said the written material was unwittingly downloaded onto your phone. Both these explanations are not persuasive.70As to the documents, again, you asserted you were targeting people in the hope to provide information leading to their arrest by entrapping criminals and building rapport with them to ensnare them into criminal offending.
You conceded your behaviour was stupid and had not the thought of any consequences. This explanation, too, seems too far-fetched. It is in the realm of possibility that you have deluded yourself into this type of vigilante behaviour or aspirations. But in my view, this really provides little by way of any amelioration, even if such mere possibility was in the fact the true motive.71You have no pending matters before the courts, but you have spent in excess of a year in custody related to these offences. Having been identified as an
ex-police office has meant protective means have been taken to safeguard you during your occlusion.72You were bailed at the end of 2017 and have remained in the community since. You have been employed full-time as a civil construction labourer, much of it at night. You supervise and mentor workers. You have seen a psychiatrist on a regular basis, though you refused to provide a report to the court. You have been prescribed and continued to take antidepressant drugs. Your status as an ex-police officer will render your imprisonment harsher than for others, and I will take this into account as indeed your other personal matters.
73You report being abstinent and not having used drugs or alcohol since leaving custody.
74Mr Glowinski comments on the diagnosis of post-traumatic stress disorder, made by Mr Mackinnon, but notes that the report of Mr Mackinnon did not contain information about your offending behaviour. The diagnosis of post-traumatic stress disorder is plausible but questionable, in any event, unrelated causally or otherwise to the offending.
75I received a reference from Ms Toogood in which she states that you are generous, kind and helpful, and hopes you will continue to address the issues which have beset you when you are able to.
76In my view, a custodial sentence is inevitable in this case. Would you please stand, Mr Goris?
77On the first indictment, on Charge 1 of using a false document, you are convicted and sentenced to nine months' imprisonment.
78On Charge 2 of obtaining property by deception, you are convicted and sentenced to three years' imprisonment.
79This is an offence, pursuant to s.6H of the Sentencing Act, it shall be noted in the records of the court.
80On the second indictment, for possession of child pornography, you are convicted and sentenced to nine months' imprisonment.
81On the third indictment of making, using or supplying identification information, you are convicted and sentenced to two years' imprisonment.
82On the related summary charges seven, ten and eleven, possession of prohibited weapon without exemption, possession of cartridge ammunition whilst not the holder of a license, and dealing with property suspected of being proceeds of crime, you are fined $300 on Charge 7, $300 on Charge 10 and $600 on Charge 11, making a total of $1,200.
83With regards to indictment ending 3385, I order that two months on Charge 1 be cumulative on Charge 2, making a total effective sentence on that indictment of three years and two months.
84I order that two months of the charge on the second indictment ending 3385.1, and eight months on the charge on the third indictment ending 01009, be cumulative on the total effective sentence on the first indictment.
85This makes a total effective sentence, across all three indictments, of four years.
86I fix a non-parole period of two years and six months.
87I declare you have served 403 days by way of pre-sentence detention, and note that fact in the court's records.
88But for your plea, I would have sentenced you to five years imprisonment with a non-parole period of three-and-a-half years'.
89I have also signed the relevant forfeiture, disposal and compensation orders with the exclusion which I highlighted before in discussion. I have a forfeiture order which has three items; that is, one relating to the external hard drive, the iPhone, and any images derived there from. I have forfeiture order in relation to the prohibited weapon, the slingshot, and I have a forfeiture order in relation to the ammunition. And I also have a compensation order and a disposal order which outlines 59 items.
90Yes thank you, Mr Goris can be removed. Thank you all.
(At a later stage.)
91HIS HONOUR: Yes, thank you. Mr Goris, I asked you to come back into court because after you left, it was brought to my attention that because the sentence triggers another act, the Sex Offenders Registration Act, and by being convicted of the offence which you have been sentenced for, that Act and its provisions come into play. That gives rise to a number of obligations on your part upon your release.
92It is going to be in place for a period of eight years. That is a period that is stipulated in the legislation for particular offences. That will give rise to a number of obligations on your part which are quite substantial and can be onerous. You will receive a document that outlines those obligations and I would be obliged if your counsel could go through that with you because they are quite substantial and may be onerous, and you will have to abide by those obligations for a period of eight years. You must understand that there are penalties applicable for contraventions of that order, and for not complying with the obligations to which that Act gives rise.
93So I will make an order that you be registered for eight years and to comply with each of the obligations to which that Act gives rise. When that material is ready, I will sign it and I will then send it down to Mr Goris downstairs so that he can have it before he leaves.
94MR MARSHALL: Thank you, Your Honour.
95HIS HONOUR: He will probably be downstairs by that time, but he will receive that documentation and if he has not had to be transported back, you will have an opportunity to speak to him then.
96MR MARSHALL: Yes, thank you, Your Honour.
97HIS HONOUR: Thank you.
98MS TEAGUE: Your Honour, just a matter of clearing everything up. We've made some enquiries in relation to a forensic sample order. A sample was taken in Castlemaine in 2016. So that application is no longer pursued.
99HIS HONOUR: I take it that such a sample was obtained.
100MS TEAGUE: It will be automatically retained.
101HIS HONOUR: It will be retained, yes. Yes, well, Castlemaine, the last I heard, was in Victoria.
102MS TEAGUE: Yes.
103HIS HONOUR: So it is in this jurisdiction. Yes, thank you very much for that clarification. Thank you both.
104MS TEAGUE: Thank you, Your Honour.
105MR MARSHALL: Thank you, Your Honour.
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