Director of Public Prosecutions v Grant Shaz Elliott
[2014] VCC 2156
•16 December 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-13-00166
CR-13-01189
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Grant Shaz ELLIOTT |
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JUDGE: | CHIEF JUDGE ROZENES | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 November 2014 | |
DATE OF SENTENCE: | 16 December 2014 | |
CASE MAY BE CITED AS: | DPP v Grant Shaz ELLIOTT | |
MEDIUM NEUTRAL CITATION: | [2014] VCC 2156 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Obtaining and attempting to obtain a financial advantage by deception – Make false document – Extensive relevant criminal history – Continuing Criminal Enterprise – Committing offences whilst on parole – Totality
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Ms A Ellis | David Barrese & Associates |
HIS HONOUR:
1 Grant Shaz ELLIOTT, also known as Grant ANGWIN, you have pleaded guilty to four charges of making a false document and one charge of obtaining a financial advantage by deception on Indictment Number C12797724 (‘Indictment 1’). You have pleaded guilty to a further two charges of obtaining a financial advantage by deception and two charges of attempting to obtain a financial advantage by deception on Indictment Number D10429842 (‘Indictment 2’). You have an extensive criminal history comprised predominantly of deception-based offences, for which you have received substantial terms of imprisonment. I shall refer to these in some detail later.
2 The circumstances giving rise to your offending were opened in detail by Mr Pickering who appeared to prosecute, and are contained in two Summaries of Prosecution Opening, Exhibits A and B.
3 The offences to which you have pleaded guilty on Indictment 1 concern or are connected with a house in Glen Iris that was owned by your mother, with whom you resided at the time of offending. In brief summary, between 15 and 28 April 2010 you made a series of false documents, including a Contract of Sale, a Commonwealth Bank Discharge/Refinance Authority, a Transfer of Land and a Statutory Declaration, by signing your name and forging that of your mother, with the intention that you would use these false documents to obtain a financial advantage for yourself in that you became the registered proprietor of the Glen Iris property.
4 ING now holds the title to the Glen Iris property and has commenced civil proceedings to obtain possession of it. Your mother, now aged in her mid-80s, has been forced to commence civil proceedings of her own to prevent the sale of her home and to restore the Certificate of Title to her name.
5 The offences involved on Indictment 2 arise from Operation Taylor, an investigation into a large cheque fraud perpetrated against the NAB. The facts as outlined by the prosecutor are lengthy and complex, and I do not propose to recite them in full. In short compass, however, between 8 December 2009 and 15 February 2012 you, together with a number of co-offenders, orchestrated and perpetrated a raft of multi-layered, fraudulent transactions. The general modus operandi can be best described by examining charge 1. A cheque in the amount of $240,746 was drawn against a dormant account belonging to an innocent agent known to you, and deposited into the account of an associate. The cheque, along with others, was then stolen from the courier transporting them for clearance. In the meantime, cheques were drawn against the associate’s account made payable to a number of persons in what could be effectively describe as a money laundering exercise for your benefit. A number of unwitting or complicit accomplices were used. Because the stolen cheque never reached the clearing house, the fraud against the bank was wholly successful. Whilst there was some variation in the methods of laundering the proceeds, the underlying technique was the same. By these processes you dishonestly obtained a financial advantage in the sum of $555,017.62, charges 1 and 2, and dishonestly attempted to obtain a financial advantage in the sum of $1,252,870.75, charges 3 and 4.
6 I turn to matters personal to you. You were born on 21 February 1963, and are currently aged 51. You were raised by adoptive parents, and grew up in the Glen Iris and Hawthorn areas. You have two half-siblings. Your father was alcohol dependent and was physically abusive towards your mother. You report attempting to intervene to protect your mother, however you report that your father physically beat you as a result. He died in 1990 from cirrhosis of the liver. You have a very close relationship with your mother, now aged 84, who is in poor health and dependent upon you. You were married in 1984 when you were aged 21. That relationship lasted for three years, during which time you had a daughter, and she in turn has had one child. You had very little contact with your daughter during her childhood, reacquainting briefly in 2009, and you report again no longer having a good relationship with her. I am told that during your time out of custody, you have been engaged in legitimate employment. You have had a string of jobs, ranging from paper rounds, working as a butcher, a baker, a labourer and a security guard. I note, however, that you have spent a very substantial amount of your adult life in prison. You report having had no visitors whilst in custody awaiting the finalisation of this matter.
7 On your behalf your counsel, Ms Ellis, submitted that I take the following matters into consideration by way of mitigation:
a) that your plea of guilty was made at a very early opportunity, demonstrating remorse for your offending and not merely of utilitarian value;
b) that you did not derive any substantial financial or other benefit from your offending, and that no great enrichment flowed as a result of your fraud, with much of the money you obtained being used to repay existing debts;
c) that your time in custody will be more onerous knowing that your mother will be experiencing hardship in your absence; and
d) that I should have regard to relevant principles of totality generally and also specifically in the context of other offences for which you have received terms of imprisonment.
8 Objectively viewed, you employed substantial dishonesty at a number of levels to achieve your ends. It was not a question of creating one or two documents. Your scheme involved multiple separate steps during which a deception of some sort had to be perpetrated. Whether it was purporting to be someone you weren’t, or making a false certification, it was a well-planned and sophisticated operation requiring substantial endeavour on your part. Planning and sophistication usually point to gravity of conduct and cases involving planning and sophistication are often distinguished from cases in which it can be said that the offender acted spontaneously and where accordingly it is argued that a lesser degree of criminality or culpability is evidenced. On the other hand offences such as the present cannot be perpetrated without the degree of planning employed, and in some instances can be viewed as the necessary means by which the offences were perpetrated. In this respect however, your propensity to offend in this manner, as demonstrated by your lengthy and relevant criminal history, of itself places your behaviour across both these Indictments in a very serious category.
9 The chronology, exhibit 2, and prison indent, exhibit D, shows that charge 1 on Indictment 2 was committed some seven months after release from prison. Ms Ellis said that you had some outstanding old debts that you felt obliged to clear. Charge 3 on that Indictment was committed after the charges on Indictment 1 and after your parole had been cancelled. Whilst a warrant for your arrest had been issued, it had not been executed. Charge 4 on that Indictment was after you had been arrested, interviewed and released on bail. These observations demonstrate that in your case specific deterrence must play a prominent role.
10 You have a substantive criminal record for dishonesty, commencing with convictions in Perth on 22 May 1991 for car theft and ending for these purposes on 21 June 2006 when you received, in this Court, a total effective sentence of 7 years and 10 months for 11 charges of obtaining financial advantage by deception. That sentence was made partially concurrent with another sentence of 7 years and 9 months also imposed in this Court for dishonesty offences on 9 August 2002. In between you have sustained several other convictions for dishonesty with prison sentences, the most significant of which was on 30 January 1995 when you received a sentence of 4 years and 3 months for 47 dishonesty offences. It can be seen from your record that despite having served significant sentences, you continue to offend in this manner upon release from custody. I note that the present offences were committed whilst you were still on parole.
11 The offences that you have pleaded guilty to are offences of dishonesty of a high order and call for the imposition of a sentence designed to reflect the community's condemnation of those who commit offences such as these, as well as to reflect considerations of specific and general deterrence. In particular, the position you placed and have placed your mother in as a result of your deception can only be described as disgraceful even though she has, not unexpectedly, taken a somewhat positive position with respect to your offending as evidenced in her victim impact statement, exhibit C. Further, there must be no misconception that offending against financial institutions is to be regarded as ‘victimless crime’. It is offending such as this which not only adversely affects the bottom line of bank books, but also increases the levels of scrutiny and difficulty faced by legitimate customers seeking to borrow money from such institutions.
12 I take into account your early plea of guilty. It has utilitarian benefit and is indicative of some remorse. In what was described as an example of the “old school”, you made a no comment record of interview and whilst other co-offenders pointed the finger at you, you were not prepared to return the gesture. Ms Ellis submitted that your co-offenders had perhaps not been as fulsome as they might have been in describing their roles and importance to the scheme but, be that as it may, she was not, I think, suggesting that that you had anything less than a most important role to play. She also pointed out that whilst the amounts obtained were significant you had little to show for it. In that context I think it should be noted that whilst you have little to show for it, you have managed, as I understand it, to have wiped away some debt and had enough to invest in a business in Manila.
13 As to the question of delay, whilst it is the case that some five years has elapsed since the commission of charge 1 on Indictment 2, the final charge, charge 4 on the same Indictment, was committed on 15 February 2012. The balance of the delay, whilst regrettable, can be explained by the fact that it is not uncommon for complex fraud investigations to take some time, particularly when a no comment record of interview is given and by uncertainty with your representation and funding issues in this court. Nevertheless, I propose to take the delay into consideration. You have been in custody for parole breach since 5 April 2004 and I understand that the earliest release date from you outstanding sentences is 12 February 2015.
14 The principle of totality requires that where an offender is being sentenced to multiple terms, or is otherwise to serve multiple sentences, then I must ensure that the total sentence remains just and appropriate for the whole of the offending and as well the sentence currently being served.
15 Notwithstanding that you sought to deprive your mother of her home, I do accept that you love her and that she is wholly dependent on you, exhibit C. She is 84 years old and whilst arrangements have been made for her to continue living in her house, I accept that your time in custody will be more burdensome knowing that your mother is experiencing hardship in your absence. You are 51 years old and have spent a significant portion of your adult life in prison. As I have already said the offending is most serious and you have pertinent prior convictions which have so far not deterred you from committing these sorts of offences. However, I must avoid a crushing sentence.
16 Pursuant to Part 2B of the Sentencing Act 1991, you fall to be sentenced as a Continuing Criminal Enterprise Offender for charge 5 on Indictment 1 and all of the charges on Indictment 2. The consequence is that for each of these offences the maximum penalty is twice that provided by statute. Having regard to the number of charges, the period spanned and the fact that there are two distinct enterprises, I propose to moderate each sentence and cumulate modestly in order to arrive at a total sentence which is just and appropriate for the whole of the offending. I have factored into my synthesis the fact that section 16(3B) is applicable. The effect is that the sentence I impose will be cumulative upon the sentence you are presently undergoing and, having regard to the fact that you would be eligible for release in a few months’ time, I do not propose to fix a new non-parole period.
17 You are convicted on each charge and sentenced as follows:
18 Indictment 1. On each of charges 1, 2, 3 and 4 to two years’ imprisonment, and on charge 5 to four years’ imprisonment. I make no order as to cumulation on this Indictment. The base sentence for both Indictments is charge 5.
19 Indictment 2. On each of charges 1 and 2 to four years’ imprisonment and on each of charges 3 and 4 to three years’ imprisonment. I direct that 18 months of the sentence imposed on each of charges 1 and 2 and 12 months on each of the sentence imposed on charges 3 and 4 be served cumulatively on each other and on the sentence imposed on the base sentence, making a total effective sentence of 9 years’ imprisonment. I fix 7 years as the non-parole period.
20 I direct that a notation be made on the Record of the Court that you have been sentenced as a Continuing Criminal Enterprise Offender with respect to charge 5 in Indictment 1 and all the charges in Indictment 2.
21 I make the compensation order in the terms specified in the draft.
22 Section 6AAA of the Sentencing Act requires me to state the Total Effective Sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 11 years’ imprisonment with a non-parole period of 9 years.
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