Director of Public Prosecutions v Hadzic
[2013] VCC 2180
•27 February 2013
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SADIK HADZIC |
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JUDGE: | HER HONOUR JUDGE DAVIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 February 2013 | |
DATE OF SENTENCE: | 27 February 2013 | |
CASE MAY BE CITED AS: | DPP v. Hadzic | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 2180 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW – Sentencing – obtain financial advantage by deception – good prospects of rehabilitation
Sentence: Two year Community Corrections Order with 200hrs unpaid community work
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms S. Naimo | OPP |
| For the Accused | Mr R. Gipp | GPZ Legal |
HER HONOUR:
1 Sadik Hadzic, you have pleaded guilty to one charge of obtaining financial advantage by deception contrary to s.82(1) of the Crimes Act 1958. The maximum term of imprisonment for this offence is ten years imprisonment. The prosecution has tendered and read out in open court a summary of the case that they bring against you. This is Exhibit 1 in these proceedings. You have admitted the truth and accuracy of that summary and I sentence you on the facts as set out in that document.
2 The offence relates to the application you made on 27 January 2011 to Aussie Home Loans for finance for the purchase of a property at 3 Nicholson Close, Werribee. At the time you were 27 years old, married and living with your wife at 1 Nicholson Close, Werribee. The property at 1 Nicholson Close had been purchased by you and your wife in 2006 using a loan from Aussie Home Loans.
3 When signing the application on 27 January 2011 you declared that all the information set out in your application was true and correct, that any decision of Aussie Home Loans to accept your application was made in reliance on the information given, and that if any false information or statement had been made in the application the applicants may be subject to a penalty of imprisonment and/or a fine.
4 In your application you failed to disclose that on 26 July 2010 you, together with a friend, had purchased a property at 10 Belvedere Close, Maribyrnong and that there was an outstanding loan with Westpac Bank for $1,100,000. It is this failure that constitutes the deception. On 11 February 2011 a $393,323.66 increase was approved by Aussie Home Loans. That approval was granted based on the information provided in the application.
5 On 21 February 2011 the loan which consolidated the mortgages over both 1 Nicholson Close and 3 Nicholson Close was drawn down. Had you disclosed your loan with Westpac Bank the loan granted by Aussie Home Loans would not have been approved. You were arrested on 11 April 2012 and interviewed at the Footscray Police Station. You admitted the offence and said at record of interview question and answer 277, firstly, "My point was really trying to get this loan." Later at question and answer 312, "Just fearing I was - didn't want anything to sort of hinder us that might get the loan for that house cause we really wanted to live there."
6 I notice that notwithstanding all the difficulties, including financial difficulties which you have experienced since your arrest on this charge, to your credit you have continued to fully discharge your financial obligations to Aussie Home Loans in respect of the loans obtained from it, and that no-one, apart from you, has suffered as a result of your conduct.
7 I note that the circumstances in which your offending was detected are unusual. Detection followed police inquiries into the conduct of your tenant at Belvedere Close who was found to be cultivating cannabis hydroponically at the premises. I accept that you attended at your local police station in order to seek information about the premises and that you eventually obtained a VCAT order to regain entry to that property. I accept that police were satisfied that you had no knowledge of the conduct going on at those premises.
8 Your counsel tendered a psychological report by Mr Geoffrey Cummins, which is Exhibit A, as well as a number of references from your friends, which are Exhibits B, D and E, from your employer, Exhibit C, and from your mother-in-law, Exhibit F. The references indicate that you are a well educated, well qualified, hard working, dedicated family man of excellent character and a valued employee, friend and family member.
9 They felt that the offence was completely out of character for you. I accept that evidence. I accept the report of Mr Cummins, apart from the references in it to your offending conduct having been reckless rather than intentional. I accept your concession that you knew at the time you committed the offence that you were obliged to make disclosure of all your existing loans to Aussie Home Loans and chose not to do so.
10
Your background and personal circumstances were accurately outlined in
Mr Cummins' report and further detailed by counsel. Your are now 29 years old and were 27 at the time the offences were committed. You were born in the Philippines, your mother died when you were six years old. You remained in the Philippines with your grandmother for a few years until your father arranged to bring you to Australia in 1992 to join him and your siblings.
11 You spoke no English when you arrived. You attended school and completed Year 12 and then did six months of an international business diploma before working in smash repairs. You then worked at Holden for six years and completed a fitting and turning apprenticeship before being enticed to work at your current workplace, Owens Illinois, as a maintenance fitter. You are working there full time while also undertaking an electrical apprenticeship. You earn approximately $115,000 per annum.
12 You are married to Lauren and have a two year old son. Your wife is expecting another child in six months. Because of the current difficulties you separated from her for some months last year but have since reconciled. You have never received ongoing psychiatric treatment. You took anti-depressants for some years after a relationship break-up and have been on anti-depressants for the past year because of your financial and legal situation.
13 You have been suffering symptoms of a reactive adjustment disorder in response to your financial difficulties and current legal situation. Mr Cummins felt you would benefit from some psychological treatment over the next nine months and noted that although your marriage had been under strain you felt it would survive the current situation.
14 He felt that your mental health would worsen if you are incarcerated. You are a social drinker and have never used illicit drugs. You have no prior convictions which is a significant factor weighing heavily in your favour. You have been under financial strain because of the restraining orders over your assets which were imposed when the cultivation activities of the tenant at 10 Belvedere Close were discovered and the police considered, wrongly as it turns out, that you were involved in those activities.
15 You earn about $1500 net per week but your mortgage commitments total around $1000 per week. You owe approximately $9000 on your credit card but have approximately $9000 in cash savings and own two cars. You are planning to sell 1 Nicholson Close and 10 Belvedere Close as soon as possible. Your financial position will improve once any remaining restraining orders are lifted, although the family home at 3 Nicholson Close is subject to a confiscation order.
16 You accept that you were wrong in not disclosing the existence of the mortgage for 10 Belvedere Close, Maribyrnong. Your reason for lying was that you were focussed on getting the loan approved in time for you to fit in within the two week settlement arrangement demanded by the vendor of 3 Nicholson Close. You wanted to buy the property to take advantage of what you believed were rising prices in the area.
17 In spite of all the financial difficulties which have resulted from the purchase of 10 Belvedere Close and the activities of the tenant there, you have managed to keep servicing all your mortgages and Aussie Home Loans has not lost any money. You have been able to do this because a friend was prepared to lend you in the order of $27,500 between August 2010 and March 2011 to prevent you defaulting on your loans to Westpac and to Aussie Home Loans. You have not offended since committing the subject offence.
18 The charge is a serious one. General deterrence is an important consideration in a case such as this. The integrity of the banking system depends on the honesty of customers seeking loans. Further your dishonest warrants condemnation and punishment. In particular it is to be noted that dishonesty should not be dressed up in the guise of ambition. You were simply greedy in wanting to get ahead faster than your own financial circumstances, if honestly disclosed, would permit.
19 You would not have obtained the substantial loan you wanted but for your lying about your existing loans. Your lies prevented the bank from accurately assessing the risk involved in lending more money to you. However I note that you are very remorseful about what you have done. You made full admissions when interviewed by police and pleaded guilty at an early time at the committal mention.
20 Your plea indicates your true remorse and warrants a substantial discount, not only for this reason but also because you are entitled to a statutory discount for the plea. I acknowledge that your plea is of social utility and that the community has been spared the cost and expense of a trial. No witnesses were required to give evidence against you. Your cooperation with authorities is well demonstrated by your attitude to the restraining orders. You did not oppose the restraining orders imposed over your assets and were very cooperative in explaining to police the source of the cash payments you received from your friend to assist with your mortgage payments.
21 Although the amount involved, nearly $400,000, is very substantial, you have managed to keep servicing the loan in spite of your arrest and in spite of the restraining orders which affect your assets. The loan is well secured by the property at 3 Nicholson Close. You are a relatively young man with no prior convictions and are in stable employment with the full support of your current manager.
22 I accept from your references that the offending conduct is completely out of character for you and I am satisfied that you are deeply ashamed of what you have done and are unlikely ever to offend again. Therefore personal deterrence is not required in your case. For these reasons, notwithstanding the importance of principles such as general deterrence, denunciation and just punishment, I propose to give you an opportunity to avoid conviction taking into account the matters referred to in s.8 of the Sentencing Act.
23 I accept that a finding of guilt may severely negatively impact on your employment prospects. I accept your counsel's submission that you have already suffered a penalty in terms of the toll that these matters have taken upon your marriage, and although I do not take into account the fact that your family home is subject to a forfeiture order, I note that you will continue to face some financial repercussions for some time as a result of your conduct.
24 Doing the best I can to balance all of the above factors I will now proceed to sentence you for the offence. Would you please stand.
25 As I have already said the offence you committed is a serious offence of dishonesty. It involved a large amount of money. However you are otherwise a reasonably young person of excellent character with stable remunerative employment. You are remorseful and unlikely to offend again.
26 Aussie Home Loans has not lost money because of your conduct and the loan is secured against the property you purchased with it. In the circumstances I sentence you without a conviction to a community corrections order for a period of two years, requiring you to perform 200 hours of unpaid community work. This is the only condition, in addition to the mandatory conditions, which I propose to impose upon you.
27 So that you are in a position to make an informed decision about whether you give your consent I will tell you something about the course that I propose. The length of the order will be two years and the order will commence today on 27 February 2013. Every community corrections order, including the one that I propose in this case, contain six mandatory conditions. They are firstly that you must not commit, whether inside or outside Victoria, during the period of the order an offence punishable by imprisonment.
28 Secondly, that you must report to and receive visits from the Secretary during the period of the order. Thirdly, that you must report to the Community Corrections Centre specified in the order in this case and we will work out which one that is shortly, within two clear working days of the order coming into force, namely within two working days of today.
29 Fourthly, that you have to notify the secretary of any change of address or employment within two clear working days after the change. Fifthly, that you must not leave Victoria except with permission, either generally or in relation to a particular case of the Secretary. Finally, that you must comply with any direction given by the secretary that is necessary for the Secretary to give to ensure that you comply with the order.
30 I am also required to attach at least one condition in accordance with s.47 of the Sentencing Act 1991 and in attaching these conditions I bear in mind firstly the principle of proportionality, second, the purpose for which a sentence may be imposed as set out in s.5 of the Sentencing Act, and finally, the purpose of a community corrections order as set out in s.36 of the Act, which is to provide a community based sentence for a wide variety of offending behaviours while having regard to and addressing your circumstances.
31 The proposed additional condition in these circumstances that I propose to impose is simply that you perform the 200 hours of unpaid community work during the next two years. The purpose of attaching this work condition is to adequately punish you in the community for the offence.
32 My proposal then is not to record a conviction and to make a community corrections order containing the conditions that I have just mentioned.
33 You must understand that if you breach any of the conditions of this order you may be charged with the offence of contravening a community corrections order. That offence carries a maximum penalty of three months imprisonment. There may be other consequences. If you are found guilty of the breach, in addition to the penalty imposed for that offence, the court might vary or cancel the order or re-sentence you in respect of the offences before me today. That might mean that you will be sent to prison as a result.
34 Do you understand? Do you consent to the order in the terms that I have outlined in the full knowledge of the consequences of breaching such an order? Thank you.
35 I am also required to state the sentence and non-parole period, if any, that would have been imposed in respect of the sentence but for the plea of guilty.
36 Pursuant to s.6AAA of the Sentencing Act and taking into account the matters I have previously referred to as relevant to the weight to be given to your guilty plea, I state that but for your guilty plea the sentence I would have imposed is as follows. Six months imprisonment, wholly suspended for a period of two years. I will also direct that pursuant to s.6AAA(4) that the sentence that would have been imposed but for the plea of guilty be noted in the Court's records.
37 I will order that the order be prepared in the terms that I have indicated. We will just need to get the address in relation to the attendance. There is one in Werribee?
38 MR GIPP: I understood there was one in Werribee.
39 HER HONOUR: Thank you. We will get that order prepared. I thank counsel for their assistance. We will prepare the orders in those terms.
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