Director of Public Prosecutions v Graer

[2022] VCC 2198

IN THE COUNTY COURT OF VICTORIA

AT Melbourne

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00387

DIRECTOR OF PUBLIC PROSECUTIONS

v

DAVID ARTHUR GRAER

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	7 December 2022
DATE OF SENTENCE:	7 December 2022
CASE MAY BE CITED AS:	DPP v Graer
MEDIUM NEUTRAL CITATION:	[2022] VCC 2198

REASONS FOR SENTENCE

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Subject:  CRIMINAL LAW – Sentencing.

Catchwords:  Plea of guilty – Attempting to obtain a financial advantage by deception – Delay – No criminal history - Very good prospects of rehabilitation – COVID-19 pandemic.

Legislation Cited:     Crimes Act 1958 s 321M; Sentencing Act1991 s 6AAA.

Cases Cited:            Worboyes v The Queen [2021] VSCA 169.

Sentence:                 Community Correction Order for a period of 18 months, with conviction.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu with Mr E. Dober	Office of Public Prosecutions
For the Accused	Ms J. Poole	Tony Hannebery Lawyers

HIS HONOUR:

Introduction

1Davis Arthur Graer, you have pleaded guilty to one charge of attempting to obtain a financial advantage by deception, contrary to s 321M of the
Crimes Act 1958, which carries a maximum penalty of five years imprisonment.

2You have no prior criminal history.

Circumstances of Offending

3On 7 August 2014 the Australian Tax Office (’ATO’) conducted a tax assessment of Michael James Murray for income years ended 30 June 2008 to 30 June 2011.  As part of the assessment tax liabilities were raised against Mr Murray.  From that date on any purchase by Mr Murray left him susceptible to legal action and asset confiscation by the ATO because of his outstanding taxes.

4On 18 February 2016 Mr Murray sent a text message to his friend,
Marcus Hume, stating, 'Good morning, mate. My guy David is going to give u a call this morning re leasing jeeps’. Mr Hume replied, ‘No worries Cheers’.

5Mr Hume was a car salesman and manager for the Berwick Motor Group and an associate of you and Mr Murray.

6You were a company director and secretary for Richmond Investment Property Holdings Pty Ltd (formerly known as Secure Loan Solutions) as of
7 December 2012.

7No further text messages were sent regarding the Jeeps until October 2016. 

8Between 15 October and 10 November 2016, you attempted to obtain financial advantage, namely the provision of loan facilities and finance, for Mr Murray. You did so using deception, namely, putting forward applicants for finance with falsified supporting material. The applicants put forward by you were
Zahid Mohammad Ashraf and Lakhveers Brar. The applications were to
Nissan Finance, Bank of Melbourne and Macquarie Bank.  The purpose of the loan facilities was for Mr Murray to purchase two Jeep Grand Cherokees in a name other than his own.

9On 15 October 2016, in a series of text messages, you and Mr Murray discussed the purchase of a Jeep. The texts are as follows:

Murray:	wife wants jeep 60-80k worth
But need it reg in someone friendly
You:	I have a chance to lease a. New thing for u discuss Monday
Murray:	OK the jeep for Deb. Graham has org a car for me. Katie breaking my balls for 3 weeks now for a range r!
You:	Will she cop jeep
New one
Murray:	Katie?
You:	Yes
Murray:	Deb priority But yes Katie will be happy also’
Is this possible ?
You:	Yes mate talk Monday
Murray	OK thank u

10On 17 October 2016, you and Mr Murray exchanged a series of text messages discussing: 

(a)the colour of the two jeeps (one white and one black);  

(b)the models and price;  

(c)purchaser details (not his own) that Murray was to put forward for the contracts;  

(d)the fact that they will be purchased by internal finance; and  

(e)that you were going to use a friend of yours to purchase the Jeep.  You said your friend is a salesman. 

11On 18 October 2016 you and Mr Murray exchanged another series of text messages regarding: 

(a)finance of the Jeeps;  

(b)that Mr Hume had emailed you; and

(c)that Mr Hume was waiting on you to get back to him regarding the ‘guys details’ that the purchase was under so he could organise invoices and applications.

12Mr Hume suggested that Mr Murray may want to, ‘touch base’, with you to move you along.  Mr Hume then indicated that you would get back to him as soon as possible and he could then book out the cars and submit the applications.

13On or about 18 October 2016, you consulted with Nicole Richardson, an employee of the Berwick Motor Group finance department. 

14On 19 October 2016 Mr Murray and Mr Hume exchanged further text messages regarding finances and awaiting information from you, hopefully being able to sort it out, ‘today’.  Mr Hume said he told you to deal directly with his finance lady.

15On 20 October 2016, Mr Murray asked Mr Hume (by text messages) for an update as you told him the finance lady was being more thorough than anticipated.  Mr Hume told Mr Murray that you had not given the lady enough detail to process the applications.  Mr Murray then asked Mr Hume to speak to you as the finance lady was asking to speak to the applicants.  Mr Hume said he would do so in 20 minutes as he was on a Jeep course.  He then texted
Mr Murray that he had spoken to you and that you and the finance lady,
Ms Richardson, were working slowly through the applications and that it would not be completed today.  Mr Murray asked if the applications would be okay, and Mr Hume replied that you had changed the applicants’ names and that he would have to wait to see but he was confident you knew what you were doing.  

16On 20 October 2016, you sent Ms Richardson documentation regarding the applicant Mr Ashraf.  This included his Western Australian driver licence and his Commonwealth Bank debit card.  These were later forwarded to
Merryn Graer, your wife.

17Ms Richardson was in the finance department at Berwick Motor Group between February 2014 to September 2018.  Her job was to receive and prepare applications to finance vehicles being purchased by customers from the dealership.  This involved having customers select a vehicle, compiling an application for a loan agreement and submitting the application for finance to a financier.  If the application was approved, funds would be made available to the dealership and the customer would receive the vehicle and repay the financier under the loan agreement.  She recalls an application where you were representing someone and that Mr Hume was the sales manager at the time.  She was not able to recall how far she got with the application.

18Employment records were supplied, which showed that Mr Ashfar and Mr Brar were able to service loans. These employment records indicated they were both employees of Cheap Deals Online, with ABN 18 161 562 009, which is the ABN for your company, Richmond Investment Property. Those records were fake.  

19On 21 October 2016, you contacted Vishal Jadhav by text, asking him which of the Indian names you gave him was returning to India, 'for good'.  Immigration records show that:

(a)Mr Brar left Australia on 17 September 2016; and 

(b)Mr Ashraf left Australia on 8 November 2016. 

20On 21 October 2016, Mr Murray and Mr Hume (by text messages) discussed the progress of the applications. Mr Hume said that:

(a)Ms Richardson still had not received all that she needed from you but that the two of you were working through it;  

(b)you and Ms Richardson had put forward an application from Perth for the figure of ‘91k for the car with 9.5k deposit’; and

(c)Ms Richardson would submit it and would find out the outcome on Monday.

21Mr Hume said he was not sure about the second car yet as not enough information had been given. He said, 'no worries mate we’re trying really hard for you it’s just not easy with the way it’s happening'. 

22On 21 October 2016, you emailed your wife, forwarding the document you sent to Ms Richardson on 20 October 2016.  The email to your wife said, ‘This is what was sent to [Ms Richardson]’. 

23That same day you confirmed via text with Mr Murray that the applications were being sent to Nissan finance.

24Also that same day you emailed Kiran Kosagi and Mr Jadhav with attachments titled, ‘2 x applications’.  Your email said:

'We are purchasing 2 SRT Jeeps one white one black, apprx value 90k, we are going to pay 10% up front then payments each month thereafter.

Vinny you are Ashraf Zahid you have his deals, you employed now by CHEAP DEALS ONLINE on a contract for 3 years at 142k per annum, previously 2 other website operations.

Kiran I am sending who you are on separate email. The person will be a Nicole, you are both now at 50 Regent Street, Oakleigh, I am your accountant, review your full names and birthdates, good luck don’t muck up'.

25You had arranged for Mr Kosagi and Mr Jadhav to adopt the identities of
Mr Ashraf and Mr Brar for the purposes of the two finance applications for the Jeeps.

26On 22 October 2016, Mr Murray and Mr Hume (in text messages) discussed the progress of the applications.  Mr Murray asked, ‘are both app in?’, and
Mr Hume responded, ‘not sure tried to ring her but her phones off I’ll let you know as soon as she calls me back’. Mr Murray then texted that ‘Dave [you] just msg said she has submitted both app I guess answer mon?’ and Mr Hume agreed that the answer will probably come Monday.

27On 24 October 2016, Mr Murray followed up again with Mr Hume. Mr Murray’s text message said, ‘Good morning mate, any word from finance’.  Mr Hume replied, ‘…spoke to Nicole no word yet but she thinks it’s going to be a long shot based on the strength of the applicants they trying to borrow nearly 85k and had never had finance before.  They may come back to with a maximum borrow amount and then we can work with that.  She also hasn’t received pay slips yet?’. Mr Murray responded, ‘Fuk ok Dave in court I’ll have to wait till he’s out Did 2 apps go in or just one??’. Mr Hume said, ‘No stress I’ll Nikki and find out if they’ve both been put up’. 

28In October 2016 a finance application was prepared to the Bank of Melbourne on behalf of Mr Ashraf and Mr Brar. Both applications had you as the referee to the application. Both were detailed as working for Cheap Deals Online.
Mr Ashraf was being financed to purchase a Jeep Grand Cherokee, white, registration, AHU 926, in the sum of $81,500.00 with the money going to Pakenham CJD. Mr Brar was seeking finance to purchase a
Jeep Grand Cherokee, black, registration, ALD 593, in the sum of $87,020.00 with the money going to Pakenham CJD.

29On 25 October 2016 there were issues with the applications.  Mr Murray and Mr Hume discussed the fact that you were going to get Ms Richardson payslips for the two applications so they could be sent in.  The pay slips were going to be ‘amended’.

30On 27 October 2016, Mr Hume and Mr Murray discussed the fact that the payslips were not accepted and an employment letter was needed.  Mr Murray was to follow up with you about this.  Mr Hume told Mr Murray, ‘[I]t’s been like this the whole time I’ve got the car sitting here waiting to go.’  Mr Murray asked if, once the employment letter was received, finance would be done.  Mr Hume said ‘[I]t will still need approval from Macquarie but at least it will all be presented right it’s like going to court with no case.  Now we have a case we see what the judge says.’  Mr Murray asked why the process is so hard.  Mr Hume responded, ‘we’re borrowing nearly $200,000k with to [sic] pretty weak applicants so we need all the info presented spot on.  Since GFC banks make you jump through hoops to get the money.  Dave has been really slow with all the info we need which has delayed it all for you. Sorry mate trust me I want it approved and cars out for the end of month’.

31On 28 October 2016 Mr Hume sent a text message to Mr Murray, telling him, ‘it's done approved we just need to verify all paper work with David. I’ve already ordered the black one.’ Murray responded, ‘ok cool’. He then asked, ‘When can I get the keys?? LOL…and when will black one be ready?’ 

32On 28 October 2016, Mr Kosagi texted you asking you to call Ms Richardson, as she was calling Mr Kosagi about payslips. 

33On 29 October 2016, there was a further issue.  Mr Hume told Mr Murray that ‘its all approved just waiting on David Graer for the info on getting all documents and ID’s signed off.  We’ve tried to contact the Borrowers and David but no response’. 

34On 31 October 2016, the missing information for the applications was supplied by you.  Mr Hume then sent a text to Mr Murray which read, ‘Hi David, deposit amounts are $9500 each. Insurance for Brar is $1876.67.  Insurance for Zahid $2033.49 chq’s made out to Berwick Motor Group, however I believe they may be bringing cash’.

35On 1 November 2016 you texted Vinny asking for the utility notice for the two people in Perth.

36On 2 November 2016, there were still issues with paperwork and Mr Hume sent Mr Murray a text indicating that, ‘Dave still hasn’t sent the docs.  Debs in loan car and I just sent black car to get wheels done'.

37Between 3 and 9 November 2016 there are more issues regarding paperwork and the finance company not getting back to Mr Hume.  On 9 November
Mr Hume told Mr Murray that the bank is holding everything up.

38On 3 November 2016, solicitor Brett Sutterby emailed you and your wife the documents regarding the first of the two applications to be processed,
Mr Ashraf’s application.  On 7 November 2016 Ms Richardson texted you and said that Mr Hume mentioned he had the other documents for Mr Brar.

39On 10 November 2016 Mr Hume and Mr Murray spoke over the phone.
Mr  Hume told Mr Murray that the bank loan has fallen over for the white Jeep and that you were trying to sort it out.

40On 10 November 2016 you texted Mr Murray, suggesting using, ‘Grace’.

41Later that day Mr Hume called Mr Murray and told him that the bank picked up some irregularities and now they want bank statements.  Mr Hume said that the problem was that you had put up, ‘A fuckin’ Indian guy …from Perth…to finance it’, and he had never had finance before; he did not even have a Victorian licence.  Mr Hume said you had told him that you would give him, ‘a cleanskin, like, a fresh application and it’ll all be sorted.’ He said he had to resubmit everything but that it would not be an issue. Mr Hume said he had gotten himself into trouble with his boss as he had given away a $90,000 car and only received a deposit in return.  He ended by stating, ‘I’ve got not control over any of this. It’s all Bank of Melbourne’.

42Ultimately, finance was obtained in the name of Grace Hollingworth. One Jeep Grand Cherokee (AHU 926) was purchased, and used by Mr Murray.

43On 7 December 2018 you were arrested and made a ‘no comment’ record of interview with police. 

Nature and Gravity of the Offending 

44Ms Poole, who appeared on your behalf, sensibly conceded that by your conduct, you played a leading and coordinating role, facilitating the deception for the ultimate benefit of Mr Murray. The total amount of finance subject to the charge amounts to an attempt to obtain approximately $170,000, and related to three financial institutions.

45Mr Porceddu, who appeared with Mr Dober on behalf of the
Director of Public Prosecutions, emphasised that your previous experience with banks and obtaining finance, as part of your business activities, was a primary motive for Mr Murray in approaching you for assistance.  It was submitted on your behalf that you acted on behalf of Mr Murray because he believed you owed him money.  However, your offer to assist in obtaining finance became a role where you actively made arrangements for false applicants, which necessarily involved considerable communication and the preparation of false documents. In order to protect the deception, you nominated yourself as the referee for the applicants, clearly demonstrating that you were prepared to continue the lie if called upon.

46Your involvement in the attempted deception continued for some weeks and in my view, while your offending may not be a high end example of deception in all the circumstances, it is also not at the lower level.  Given the considerable planning and communications involved to set up the deception, together with the amount of money being sought, in my view, this is still serious offending.

Personal Circumstances 

47You were born in Ivanhoe, Victoria in 1957 and are now 65 years old.  You had a happy childhood.  Your parents worked at a hotel in Brighton. Your father passed away 10 years ago, but your mother is still alive and you remain close with her. She fostered your love of football and took you to watch matches as a child.

48You have been married to your wife, Merryn, for 35 years.  You each have children from previous marriages; you also have six grandchildren.  You are close to your children and grandchildren and remain in frequent contact with them. You now divide your time between your properties in Inverloch, Sandhurst and Broome.

49In terms of your education and employment history, you completed Year 11 at Brighton High School and went on to play football professionally for
Melbourne Football Club.  The club assisted you with getting employment as a cabinet maker with a company in Cheltenham.  You then transitioned into a role within a small construction company in Bentleigh, and then a larger construction company now known as Thiess Construction.  Your employer there encouraged you to go back to school to complete your education, so you undertook a building diploma and continued to work at Thiess Construction for six years, finishing an apprenticeship in carpentry and joinery. 

50Your next role was with Lewis Constructions, where you finished your building diploma.  You were then headhunted to join a company that was ultimately taken over by BHP.  In 1985, you purchased a company called
Apex Metal Products and grew the business, eventually selling it in 2001.  At that time, it was turning over $94 million per annum.  Since then, you have become involved in property development and have acted as a consultant in insolvency matters. 

51You have been involved with various charitable organisations throughout the years and raised large sums of money for these organisations.  You have a longstanding relationship with the Bali Children’s Foundation, which provides support to orphanages in Bali.  You are also a founding member of the Leukaemia Foundation charity, which raises funds for leukaemia research at the Royal Children’s Hospital.

52A number of character references authored by various personal and professional associates were tendered on the plea and speak to your longstanding commitment to charity work, as well as your otherwise good character and regret at becoming involved in this offending.

Sentencing Considerations 

53Ms Poole, who appeared on your behalf, highlighted a number of matters in mitigation.  The first of these is your plea of guilty.  You agreed to plead guilty to this charge in November 2022 following a sentence indication hearing before me.  However, the matter has had a lengthy procedural history.  You originally faced a conspiracy to defraud charge together with two co-accused, Mr Hume and Mr Murray.  Following legal argument and a ruling in relation to parts of the evidence, you sought the sentencing indication. Nonetheless, in the circumstances, your plea has still saved court time and expense and has high utilitarian value, demonstrating your willingness to facilitate the course of justice.

54The plea carries additional weight which must be reflected in a further amelioration in sentence, as the plea was entered in circumstances where the pandemic has caused a substantial backlog of cases in the criminal justice system.[1]

[1]Worboyes v The Queen [2021] VSCA 169 at [39].

55Delay is a relevant consideration.  The offending took place in late 2016, some six years ago.  You were not charged until late 2018.  I accept that none of the delay can be said to be attributable to you and that you have suffered stress as a result of these proceedings weighing upon you these last four years. Further, you have not reoffended in the intervening period, consistent with your otherwise good character. 

56As to your prospects of rehabilitation, you are now retired and no longer involved in the business of property development or consulting.  You have no prior criminal history and have the ongoing support of your wife, extended family and long term friends who provided references.  In the circumstances, in my view, your prospects are very good.

57General deterrence and denunciation of your conduct are the primary sentencing considerations. Others who are tempted to seek to obtain finance on behalf of another using false information, must be aware that such activity is illegal and will be met with consequences. As to specific deterrence, given your previously good character and excellent prospects of rehabilitation, in my view, specific deterrence need only carry minimal weight in the sentencing calculus. 

Sentence

58Mr Graer, would you please stand. 

59David Arthur Graer, on Charge 1, attempting to obtain a financial advantage by deception, you are convicted and will be placed on a community correction order for a period of 18 months.  In addition to the standard conditions that apply to all community correction orders, you will be required to complete 150 hours of unpaid community work.

60Pursuant to s 6AAA of the Sentencing Act1991, if not for your plea of guilty I would have sentenced you to three months imprisonment, together with a community correction order.

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