Director of Public Prosecutions v Haidaris

[2024] VCC 1768

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 24-00895

DIRECTOR OF PUBLIC PROSECUTIONS

v

NIKOLAOS HAIDARIS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	25 October 2024
DATE OF SENTENCE:	7 November 2024
CASE MAY BE CITED AS:	DPP v Haidaris
MEDIUM NEUTRAL CITATION:	[2024] VCC 1768

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Charge of obtaining a financial advantage by deception and obtaining property by deception – gambling addiction – no prior criminal history – profound effect on victim – high moral culpability – no breach of trust – plea of guilty at earliest opportunity – evidence of remorse – delay – totality -

Legislation Cited:     Sentencing Act 1991;

Cases Cited:R v Verdins (2007) 16 VR 269; R v Gross [2008] VASCA 51; Tones v The Queen [2017] VSCA 118; DPP v Versace [2019] VCC 1913; R v Flavall [2006] VSCA 32; Apted v R [2021] VSCA 151; DPP v Najjar [2009] VSCA 246; CDPP v Saard [2021] VCC 1901; DPP v Toumngeun [2008] VSCA 91; Boulton v The Queen (2014) VSCA 342 and DPP v Edwards [2012] VSCA 293.

Sentence:Total effective sentence of three years and three month’s imprisonment. Non-parole period of two years and two month’s imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Jeong	Office of Public Prosecutions
For the Accused	Mr S. Ranjit	Papa Hughes Lawyers

HIS HONOUR: 

Introduction

1Nikolaos Haidaris, I will sentence you to a total sentence of three years and three months' imprisonment and I will set a non-parole period of two years and two months' imprisonment.

2You pleaded guilty to a charge of obtaining a financial advantage by deception and a charge of obtaining property by deception.  Each charge is a rolled-up charge and the offence in each has a maximum penalty of 10 years' imprisonment.  The circumstances of your offending appear in the “Summary of prosecution opening for plea” which is Exhibit A. 

Circumstances

3The complainant, Andrew Koulouris, was referred to you by a friend of his.  You and he met on 19 January 2017.  You explained to him the details of an investment scheme you conducted. There were property developers who wanted finance.  In order to persuade lenders to lend to develop a project, they needed to show prospective lenders there were monies in trust representing pre-sales of property to be developed.  Once loans were made, the investor's monies would be repaid with interest.

4In this case, you outlined what would happen to the investor's money.  Initially, it would be paid into your personal bank account and then transferred into a solicitor's trust account.  The monies would not leave the trust account as it was there to show the prospective lenders of the funds received from pre-sales.  Once the developer obtained a loan those monies would be paid with interest.

5Mr Koulouris believed his investment would be protected by the laws governing estate agents, of which you were one, and the conduct of solicitor's trust accounts.  He made a series of loans to you.  In truth, there was no solicitor's trust account.  The account masquerading as a solicitor's trust account was another personal account of yours. 

6Exhibit A details the various financial transactions between you and
Mr Koulouris.  They are set out in paragraphs 15 to 53 of Exhibit A.  Along the way, you made payments to him, with the last payment of $10,000 on 4 April 2018.  During the period of your offending and afterwards, you repaid a total of $164,500.  Despite your attempts to persuade him not to do so, in March 2019, Mr Koulouris instructed solicitors to pursue a civil claim against you.  It appears he obtained a judgment against you. You were bankrupted on 23 April 2020 with Mr Koulouris as an unsecured creditor, for $1,153,084.93.

7As I said, the nature of your deceptions is set out in Exhibit A.  It describes the transactions in terms of nine loans and six repayments.  Taking loan 1 as an example, this arose out of an agreement made on 19 January 2017 where $20,000 was to be loaned.  Its term called for the repayment of the principal and interest of $7,500 within three months.  On 2 February 2017, you paid Mr Koulouris $7,500 being the agreed interest on the loan and the next day repaid the principal of $20,000.  In view of the speed of those payments, it is unsurprising Mr Koulouris made further and much larger loans.

8It appears the civil proceedings brought little or no compensation to Mr Koulouris.  On 25 April 2020, he reported the matter to the police however, it was not until 18 August 2020 that he signed his statement and two days later the police executed a search warrant at the Commonwealth Bank to obtain the records of your bank accounts.

9On 28 September 2020 you were arrested and interviewed.  You made full admissions to your offending.  Among other things, you said you had a gambling addiction from about 2015. You described the scheme as a good way to earn extra money. You used the monies on gambling. You lost your real estate job. Whatever you said to Mr Koulouris was false and was to buy extra time.

Criminal history

10You have no previous convictions or findings of guilt.  In fact, you have not reoffended since this offending.  For your entire life except for the period of this offending, you have been of good character.  This is a mitigating factor of some weight.

Phang

11Marshall Phang is a senior forensic accountant employed by Victoria Police.  He examined your bank accounts to determine the source of the monies entering them and the destination of withdrawals.  He examined two personal and one joint account. Essentially, he engaged in an elaborate tracing exercise.  His report is contained in a statement made on 30 August 2023.  The statement refers to several tables which were not admitted into evidence. 

12His analysis of these accounts revealed:

(a)   the receipt of $1,170,000 in advances by Mr Koulouris;

(b)   $164,500 in repayments to Mr Koulouris;

(c)   subtracting (b) from (a), add the figure of $1,005,500, which represented 96.4% of the monies going into these accounts in the period of your offending;

(d)   the 100% of the net inflow of funds into those accounts were mainly disbursed as follows: $366,682.48 as the net amount lost in online gambling; $298,890 being the net amount withdrawn in cash; $220,549.97 in living and lifestyle expenses; and $106,648.96 being the net amount transferred to other parties.

Victim impact statement

13Andrew Koulouris is the victim of your crimes.  On 18 October 2024, he made an impact statement, which he read out in the court room.  He could barely suppress his anger and given what he had to say, one can understand why.

14Owing to the shame and financial disruption caused by your deceptions, he can no longer face his family.  He is isolated.  His wife has left him.  He sees his children only twice a week.  His relationship with his wife's family is strained.  His circle of friends have diminished because of his reluctance to socialise.  He is alienated from his community. 

15He no longer trusts people. He is anxious. He sleeps poorly.  He is tormented by the thought you used his money to indulge yourself.

16He now works long hours in an attempt to retrieve his financial position, but it is a struggle. His pursuit of civil relief against you has proven very costly.  He is firmly of the belief you treated the legal system with contempt. 

17He ended his statement with this paragraph:

“I no longer hate you, Nicholas. Instead, I pity you.  You are nothing, and I expect that is all you will ever be.  But one thing remains - you still owe me the money”

Personal

18You are 52.  You were born and raised in Melbourne.  Your parents are of Greek origin and are still together. You have a sister aged 49. 

19Your upbringing was uneventful and, to an extent, within the Greek community.  It was the same with your formal education. You completed Year 12. You enrolled in the degree of Bachelor of Physical Education and completed all bar the last three months. You left because you lost focus, as you put it.  You intended to return to complete your degree but did not. 

20After university, you worked as a salesperson and played soccer for a club on a semi-professional basis. earning $300 a week. Apparently, your playing skills were such that after travelling to Greece you were offered a spot in the Greek Youth Team.

21After your return to Australia, you worked in sales and marketing.  You set up a business enabling customers to find a tradesperson but the business failed. 

22You then moved into real estate, working largely on commission and changing your employer to earn more.  Since December 2023, you have sold marketing packages.

23At 18, you started a relationship with Connie and married at 22.  At about 32, the marriage broke down due to the increasing impact of your gambling through its effect on the family’s finances.  You left the matrimonial home, which led to an increase in your gambling.  It worsened to the extent that you did not pay the rent on an apartment and were evicted in 2018.  You spent the next eight months living in your car.

24You have a current partner, Rachel, having been in a relationship for five or six years.  Since August 2023, you have lived in Lennox Head in northern New South Wales. Even though Rachel lives in Melbourne, you describe the relationship as 'very positive'.  You are the coaching director of the local junior soccer club and also coach the senior team. 

25You do not have any issues with alcohol or other substances.

26You were admitted into hospital with blood clots on your lungs.  It took two months to dissolve the clots.  You have had difficulty breathing and swelling of the legs, each requiring medical attention.

27You told the psychologist, Mr Simmons, you had arranged similar loans previously for your friends. You say these were honest loans, which I take to mean were repaid with interest.

Psychologist

28Warren Simmons is a psychologist. At the request of your solicitors, he interviewed you on 16 October 2024[1].  As is the practice of psychologists, he took a detailed history from you. 

[1] Report dated 16 October 2024.

29You told Mr Simmons you started gambling when you were younger, with the occasional bet at a TAB branch on horse races.  This gambling was erratic and did not cause problems. But it became a problem in about 2015, when the betting escalated with regular attendances at the TAB and online gambling.  It continued to rise even after the breakdown of your marriage and ultimately resulting in your eviction from an apartment for non-payment of the rent.

30Mr Simmons diagnosed you as suffering from a Gambling Disorder, which is a recognised psychological disorder of significant intensity.  The disorder was the driving force behind your offending because you followed a typical pattern of thinking at the start: gambling would solve your problems and then you continued to offend to gain money to chase the losses suffered. To Mr Simmons, you did not attempt to minimise your behaviour and appeared remorseful.

31He assessed your prospects of rehabilitation as apparently good. First, and somewhat vaguely, he noted your current employment as 'marketing packages', and your preference for commission-based work which offered better payment.  Second, there was your current relationship of five years standing even though you live in Lennox Head and she lives in Melbourne.  Third, you have no significant psychiatric history and there was no evidence of antisocial personality traits.  Your only difficulty has been the gambling disorder which arose eight or nine years ago and continued until the commission of these offences.

32Mr Simmons does not recommend any particular treatments except for you to continue counselling for gambling.  He noted you had sought treatment which had proven beneficial.  More importantly, he found no evidence of any problems with gambling at the present time.  Nevertheless, the last sentence of his report reads[2]:

“His offending appears to have been driven by a Gambling Disorder and if effectively treated, then the likelihood of offending will be significantly reduced.”

[2] At [31].

33In view of Mr Simmons' report, you do not rely upon any of the limbs in R v Verdins[3].

[3] (2007) 16 VR 269. See also R v Gross [2008] VASCA 51.

Treatment

34Between 8 October 2020 and 24 June 2022, you attended about 15 appointments with the 'Gambler's Help' service offered by an organisation called 'Better Health Network'[4].  These appointments involved face to face meetings and telephone calls.

[4] Letter dated 24 October 2024.

Discussion

35The purposes of sentencing are set out in s 5(1) of the Sentencing Act 1991. Each purpose has application in your case. For these offences, general deterrence is an important purpose. My sentences should act to deter persons from committing the same or similar offences.

Rehabilitation

36Mr Simmons thought you are a good prospect of rehabilitation provided your gambling disorder is effectively treated. This note of caution was probably generated by your comment to him that gambling will always be a problem for you.

37Another document was admitted into evidence. It appears to be issued by an entity called 'The Poker Banking Authority' and entitled 'Search GPI'.  It resulted from an internet search.  It purports to show your involvement in various online gambling ventures:

(a)   the Australian Poker League Poker Tour;

(b)   the Melbourne Poker Championships 2019;

(c)   the 2018 and 2019 Aussie Millions Poker Championships;

(d)   the Sapphire Series Poker Challenge;

(e)   the Asia Pacific Poker Tour;

(f)    the 2017, 2010, 2011, 2012, 2013, 2016, 2017, 2018 and 2019 Melbourne Crown Casino Recurring Tournament;

(g)   the Joe Hachem Deep Stack Series 4 and 5;

(h)   the 2009 Poker News Cup Championship;

(i)    the Joe Hachem and Shane Warne Charity Poker Tournament;

(j)    the 2006 and 2008 Victorian Poker Championship.

38The exhibit has two graphs, one of which gives what appears to be your earnings from the gambling between 2006 and 2023.  In all bar 2021, it records earnings and apparently no losses. 2021 records nothing by way of earnings even though there is an entry for 29 April to 2 May of $900 at an event called 'No-Limit Hold'em - APLPT Main Event'. 

39This exhibit was simply tendered into evidence. The meaning of the entries was unexplained by any witness or otherwise.  My reading of the exhibit shows your best years were 2017 to 2019. Your earnings in 2022 and 2023 were small, much less than $10,000. The last recorded event was between 15 to 19 November 2023. The largest figure was in 2018 at over $50,000.

40Mr Simmons was unaware of your involvement in the recent poker events.  He noted[5]:

“Mr Haidaris revealed that subsequently he has attended counselling for a gambling addiction as well as having involvement with Gamblers Anonymous.  He is aware that gambling will always be a problem with him, [and adding] that even now when he goes for a drink with the soccer team at Lennox Head at the local sporting club, he leaves whenever others want to gamble.”

[5] At [23]

41The revelations of the exhibit perhaps underpins your observation to
Mr Simmons “that gambling will always be a problem”.  Although you were still gambling until late 2023, the level is apparently greatly reduced from that in 2017.  Since the end of the present offending, your gambling has not been accompanied by offending. You did not tell Mr Simmons of this gambling. 
Mr Simmons diagnosed the gambling disorder. As a psychologist, presumably he could assess the significance of these revelations.  As it now stands, I hesitate to accept his qualified opinion of your prospects. On the other hand, the exhibit reveals limited gambling compared with your past efforts. It also sits in the context of your otherwise good behaviour after this offending. My sentences today will sentence you to prison for the first time in your life and, for you, my sentences will appear to be long.  They will act as a very powerful deterrent to you about offending in the same or similar manner in the future.  They are also a powerful reason to rehabilitate yourself.  At least, as far as the criminal justice system is concerned, your behaviour has been excellent. You made full admissions to the police when interviewed. As I note shortly, you are remorseful.  Overall, I do not consider your prospects of rehabilitation are excellent, as your counsel submitted, but they are very positive. 

42This assessment of your prospects affect the sentencing purposes of specific deterrence and protecting the community from you.  Those purposes are moderated. 

Nature and gravity of the offences

43In combination, the charges describe serious offending.  Your offending started with your initial contact with Mr Koulouris. His first instalment was destined for gambling. There was never a solicitor's trust account. The monies were transferred to another account belonging to you masquerading as a solicitor's trust account. 

44Frequently, in these types of offending, courts look at the sophistication of the deception. Looking at your scheme and describing it with that term is inappropriate.  Judging by your comments to Mr Simmons, in the past you had garnered loan monies on short-term loans to suggest to would be lenders the fruits of pre‑sales of property. This was a simple scheme promising very high returns for short term investments. However, with Mr Koulouris, although promising such returns, it was never implemented. You encouraged his continued, larger participation through similar promises. It followed a classical path of this type of dishonesty. The ultimate amount loaned is very large.  It is a mistake to view your actions in terms of sophistication.  Its simplicity led to its success.  It came to an end when Mr Koulouris sought to recover his monies civilly.

45The prosecution submitted your offending constitutes a breach of trust which existed between you and Mr Koulouris in your position as an estate agent and as members of the Greek community. With the former, the fact of you being an estate agent and the regulation of estate agents gave Mr Koulouris some confidence in the safety of his money.  The breach of this trust is an element.  As to the latter, I do not consider your actions as a member of an ethnic community constitutes a breach of trust.  It simply explains, in part, why your deception was successful.

46I have summarised the effect of your criminality upon Mr Koulouris. It is profound.  He is trying to resurrect a life severely damaged by your actions.  Although your gambling reached the level of a recognised psychological disorder, it does not lessen your moral culpability, which is high.

Guilty pleas

47The first hearing in the Magistrate's Court after the filing of these kinds of charges is a filing hearing.  This hearing is usually administrative, in the sense of providing a timetable for the service of documents.  Afterwards, there were five committal mention hearings, four of which occurred because of discussions between the parties.  Those discussions resulted in your committal, based on the brief of evidence, and the adjournment of the proceedings to a plea hearing before me.  I agree your pleas were made at the earliest reasonable opportunity.

48Guilty pleas have the practical effect of avoiding a trial by jury.  Such trials can be lengthy and cumbersome.  Although the virus has limited effect on trials nowadays, the pandemic has made people more aware of their health and to the effect of their ill health on others.  Indirectly, the virus still affects jury trials.  This reinforces the benefit of guilty pleas to the criminal justice system. 

49Guilty pleas relieve the need for witnesses to give evidence, especially victims.  Here, Mr Koulouris read his impact statement in the court room.  Having seen him do so, I somehow feel he would have relished giving evidence at a trial.  Nevertheless, your pleas are an unqualified acknowledgement of your offending and are evidence of your remorse. 

50Your pleas require a significant discount on the sentences I otherwise would have imposed in their absence.

Remorse

51You expressed your remorse for the offending during your interview by the police. Although you did not defend the civil action, I understand you were fined for contempt during the enforcement phase. Your actions underpinning the contempt process may be inconsistent with genuine remorse. But since I know so little about what happened, I am not prepared to so conclude.  In your recent interview with Mr Simmons, you expressed your remorse in an unqualified manner.  I accept you are remorseful.

Delay

52In Tones v The Queen, the court said[6]:

“It is well established that significant delay between the time that an offender is interviewed by police and the time that charges are laid, and the delay between the laying of charges and trial, can be a powerful mitigating factor. There are two limbs to delay. The first limb concerns unfairness to the offender, in the sense that the relevant charge – or the prospect of such a charge – was ‘hanging over’ the accused’s head and caused him or her anxiety (‘unfairness limb’). The second limb concerns whether, during the period of the delay, the offender made progress towards rehabilitation and whether there were good prospects of ongoing rehabilitation (‘rehabilitation limb’).”

[6] [2017] VSCA 118 at [36].

53On 25 April 2020, Mr Koulouris reported the matter to the police.  It was not until 18 August 2020 that he signed his statement.  Two days later the police executed a search warrant on the Commonwealth Bank to obtain documents about your bank accounts. On 28 September 2020 you were arrested and interviewed where you made full admissions of your guilt.  However, you were not charged with offences until 24 October 2023, more than three years later.  Whatever the reason for the delay, neither you nor your legal advisers were responsible for any of it. 

54Your counsel relied on both limbs. First, the prospect of these charges has hung over your head for a long time.  Second, he submitted you have used the time profitably by attending Gamblers Anonymous and not reoffending in any fashion.

55As to the first, Mr Simmons links your stress waiting for the outcome and your drinking.  At paragraph 26 of his report, he said:

“He has been drinking more significantly in the last six months, although this appears to be in response to the stress of his impending court date and concern over the potential disposition that he will receive...”

56Elsewhere you mentioned to him you were aware of the possibility of imprisonment.  Plainly, this very significant delay is unfair to you, through the stress it caused.  As to the second limb, I have already discussed this under the heading of 'prospects of rehabilitation'.  Both aspects carry a good deal of weight in mitigation.

Totality

57Both charges are rolled up charges. The nature of the offence in Charge 1 reflects the loans were made by electronic funds transfer and Charge 2, by cheque.  The difference is the mode of payment and there is one overlap. What is called loan 5 was made up of two payments, one by electronic funds transfer of $20,000 and the other by cheque of $50,000.  Apart from that overlap, Charge 1 consists of nine instances of the offence in that charge and Charge 2, three instances. The total amount involved in Charge 1 is $945,000 and in Charge 2, $225,000. 

58In this instance, it is easy to apply the principle of totality by a significant degree of concurrency of the sentence on Charge 2 with that on Charge 1.

Other matters

59I do not consider your age or your past health problems have any bearing on my sentencing.  At 52, you are middle aged. You are not old or elderly.  Your health concern problems arose in 2019. They were treated then and do not arise as a problem now, although you take blood thinning medicine.

Current sentencing practice

60The Director's counsel summarised two sentences of judges of this Court and three sentencing appeals in the Court of Appeal[7].  The cases of Versace, Apted and Najjar involved the breach of the trust which exists between an employer and an employee.  Breach of trust is a significant aggravating feature of the offending in those cases.  Although the amount in Saad's case was $1,531,925, it did not reflect the amount received by Saad.  His benefit was unquantified but would have been far less[8].

[7] DPP v Versace [2019] VCC 1913; R v Flavall [2006] VSCA 32; Apted v R [2021] VSCA 151; DPP v Najjar [2009] VSCA 246; and CDPP v Saard [2021] VCC 1901.

[8] See [43].

Disposition

61In their written outline, your counsel quoted passages from several cases which emphasised the importance of mercy and rehabilitation.[9] It was submitted a community corrections order would be an appropriate disposition.  In my opinion, this disposition, or even a combined sentence, would not give sufficient weight to the sentencing purposes of general deterrence and denunciation. The latter is highlighted by the damage of your offending as inflicted on Mr Koulouris.

[9] DPP v Toumngeun [2008] VSCA 91; Boulton v The Queen (2014) VSCA 342 and DPP v Edwards [2012] VSCA 293.

Sentence

62On Charge 1, a rolled-up charge of obtaining a financial advantage by deception, I sentence you to three years' imprisonment.

63On Charge 2, a rolled-up charge of obtaining property by deception, I sentence you to 15 months' imprisonment.

64Three months of the sentence on Charge 2 is to be served cumulatively upon the sentence on Charge 1. The total effective sentence is three years and three months' imprisonment. I will set a non-parole period of two years and two months' imprisonment.

Section 6AAA

65If you had pleaded not guilty to these charges, but had been found guilty after a trial, I would have sentenced you to a total effective sentence of four years and eight months' imprisonment and set a non-parole period of three years and one month imprisonment.

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