Director of Public Prosecutions v Harland

[2021] VCC 1384

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-20-00552

DIRECTOR OF PUBLIC PROSECUTIONS

v

SIMON JARROLD HARLAND

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JUDGE:	Her Honour Judge Davis
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2021
DATE OF SENTENCE:	30 September 2021
CASE MAY BE CITED AS:	DPP v Harland
MEDIUM NEUTRAL CITATION:	[2021] VCC 1384

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:              Obtain financial advantage by deception – delay – plea of guilty during the currency of the COVID-19 pandemic – excellent prospects of rehabilitation - remorse

Legislation Cited:      Sentencing Act 1991 (Vic)

Cases Cited:The Queen v Cockerell [2001] VSCA 239; Warboyes v The Queen [2021] VSCA 169

Sentence:                  Community Correction Order

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr S Devlin	Office of Public Prosecutions
For the Accused	Mr P Dunn QC Mr M Radzaj	Paul Vale Criminal Lawyers

HER HONOUR:

1Simon Jarrold Harland, you have pleaded guilty to one charge of obtain financial advantage by deception, for which the maximum penalty is 10 years’ imprisonment.

2Your offending is set out in the Summary of Prosecution Opening on Plea,[1] and I sentence you on the basis of that description. The parties filed written submissions and spoke to them during the plea hearing, and your counsel tendered three expert reports,[2] as well as a letter of apology from you. There was no Victim Impact Statement. I have taken into account all the matters referred to by counsel.

[1]        Exhibit 1

[2]Neuropsychological report of Ms Simone Hollands dated 16 February 2021, psychological report of Ms Cathy Wagner dated 3 September 2021, and medical report of Dr Andrew Broad dated 2 September 2021.

3You are 59 years old and were 54 years old at the time of offending. You were declared bankrupt in 2013 and your marriage broke down. You became friends with Ms Dekas. In early 2016, your wife moved in with her parents, who lived close by, and you remained in the family home with your two children. You then commenced an intimate relationship with Ms Dekas. Ms Dekas loaned you $15,000 in 2014 to help with your parasailing business. In October 2016, she took out a loan for the purchase of a car for your son, and you made the repayments.

The offending

4In September 2016, you signed a conditional purchase agreement to buy a boat with motor and trailer for $125,000. Your offending comprised making a loan application to Yamaha Motor Finance Pty Ltd (“Yamaha”) to fund that purchase, in the name of Ms Dekas, without her knowledge.

5In order to obtain the loan, you undertook a number of deceptions:

·        set up an email account in Ms Dekas’ name without her knowledge;

·        altered an offer of employment Ms Dekas had received from Fletcher Real Estate for a salary of $58,000 to one for a salary of $145,000;

·        provided false details, including the inflated salary, in the “Conditional Approval Application” and forged Ms Dekas’ signature;

·        provided a “Statement of Assets and Liabilities” in Ms Dekas’ name that contained false figures;

·        altered an ANZ loan statement of Ms Dekas so that her loan balance was listed as $167,850.94 instead of $667,850.94; and

·        altered a Fletcher Real Estate payslip in Ms Dekas’ name to reflect a salary of $145,000. 

6Between 8 and 14 December 2016, you used the email address you created in Ms Dekas’ name to convey the documents listed above to Yamaha. The false loan application was approved by Yamaha for the sum of $111,935.40 and the boat was delivered to your home. You did not meet all the repayments and a Default Notice was sent to Ms Dekas. She found the boat at your home and contacted Yamaha, who repossessed the boat the same day. She then ended her relationship with you. I note she played no role in your fraud on Yamaha.

7Ms Dekas made a police statement in July 2017. In January 2018, she indicated her wish for the investigation to cease. On 6 February 2019, after indicating that she wished for the matter to proceed, she made a second police statement. The investigation continued and you were arrested on 21 February 2019. You made some admissions, and indicated on 11 March 2020 your willingness to plead guilty subject to negotiations over particulars. Delays in listings then occurred due to the COVID-19 pandemic. The negotiations concluded on 17 May 2021 when it was agreed that Ms Dekas was not a party to your offending.

Prosecution submissions

8The prosecution submitted that general and specific deterrence loom large as sentencing considerations given your prior relevant history of four dishonesty offences committed between the ages of 32 and 45 years, and in particular given that your offending occurred just months after you were convicted of dishonesty offences in April 2016 (albeit in relation to offending which occurred between 2009 and 2011), as well as the breach of trust and planning involved in the current offending. It was submitted that this is a serious example of a prevalent offence and that the appropriate sentence, after balancing current mitigating personal circumstances, is one of a combined sentence rather than a straight Community Correction Order.

9On 20 September 2021, you were assessed by Corrections Victoria as suitable for a Community Correction Order. The author of the report recommended conditions of supervision, community work, and mental health treatment. You were also assessed by a Forensicare clinician from this Court’s Mental Health Community Corrections Screening Program. The clinician noted in her report dated 20 September 2021 that you require ongoing treatment by your doctor and ongoing medication for neuropathic pain and anxiety, as well as weekly psychological treatment for your depression, trauma symptoms and for suicide intervention and prevention.

Personal circumstances

10Your personal circumstances were outlined in the expert reports[3] and the chronology provided by your counsel. You were raised by a man who married your mother when she fell pregnant with you. You believed him to be your father. When you discovered whilst in secondary school that he was not your biological father, you left school, left home, and began a motor mechanic apprenticeship, which ceased when the mechanic stopped trading. In the 1980’s, after completing a fitness training course, you owned and managed a gym, but struggled during the 1990’s recession and lost the business in 1994. In October 1994, without conviction, you received an adjourned undertaking for three charges of obtaining property by deception and seven charges of obtaining financial advantage by deception. That offending related to cheques you wrote which bounced. In September 1995, without conviction, you were fined $250 and received an adjourned undertaking for charges including obtaining property by deception. In October 1997, you received a 4-month suspended sentence and a 12-month community based order for charges of theft, making and using false documents, and obtaining property and financial advantage by deception.

[3]Neuropsychological report of Ms Simone Hollands dated 16 February 2021; psychological report of Ms Cathy Wagner dated 3 September 2021; medical report of Dr Andrew Broad dated 2 September 2021.

11You began a relationship with your wife in 1992 and married her in 1998. Your children were born in 1998 and 2001. You separated from your wife in 2002, reunited and lived in the USA together between 2008 and 2010. Between 2009 and 2011, you committed further dishonesty offences by banking in your personal account cheques received from a basketball club sponsor. Those matters reached court in April 2016, when you were convicted and fined $2000.

12You then worked in sales selling library automation equipment.  

13In 2013, you were declared bankrupt and were unable to access further credit. In June 2015, you were fined $2000 for failing to file an affidavit in respect of your bankruptcy. Your marriage broke down again. Towards the end of 2016, you committed the current offending. Between September 2016 and February 2017, you made loan repayments to Yamaha totally approximately $10,000. After the boat was repossessed in February 2017, you continued to negotiate with Yamaha to repay the loan.

14In 2018, while you were in Sydney, you witnessed the suicide of a young woman who jumped off a roof and was impaled on a fence just metres away from you. She was still conscious but died while you tried to help by holding her up. You were traumatised by this episode and were unable to work for some months. You lost your job and had some counselling after being diagnosed with PTSD.

15In early 2020, there were a number of administrative adjournments of your plea hearing. During that time, your general practitioner, Dr Andrew Broad, who noted your report of long-standing depression since your adolescence, prescribed antidepressants and referred you for psychological treatment from Ms Cathy Wagner for depression, anxiety and suicidality in October 2020. Unfortunately, during that month, you fell from a ladder, striking your head and losing consciousness as well as sustaining several fractures. You were admitted to the Royal Melbourne Hospital. Although your fractures healed, you suffered ongoing back pain and were diagnosed with a cyst on the spine. You were retrenched from your job. You also suffered some longer term cognitive deficits in speed of thinking and concentration for which you were attending rehabilitation and which were expected to improve over time.[4] You resumed contact with Ms Wagner in August 2021 and told her about the current offending. You expressed remorse for your behaviour, indicated that the matter had been dragging on for three years and that you had been on medication and feeling suicidal for much of that time.

[4]        Neuropsychological report of Ms Simone Hollands dated 16 February 2021, 3.

16As at 3 September 2021, Ms Wagner expressed concern about your acute depression and significant suicide risk and indicated that she will continue to provide you with therapy including suicide intervention and prevention.[5] Dr Broad indicated that when he saw you in early September this year, your mood had improved somewhat, but you were tearful and upset about the current court case and still had periods of depression, guilt and shame in relation to it.[6]

[5]        Psychological report of Ms Cathy Wagner dated 3 September 2021, 3-4.

[6]        Medical report of Dr Andrew Broad dated 2 September 2021, 2.

17Each of your children obtained basketball scholarships to American universities. Your son has completed his degrees and intends to return to Australia to attend Duntroon University, but has become stranded in the United States due to the COVID-19 pandemic. He is not permitted to work there. Your daughter attends Dartmouth University in Boston but is also unable to return home. As at today’s date, you have been supporting your children while they remain in the United States by working three jobs: one full-time job as a sales manager, a Saturday job installing and removing inspection signs for a real estate company, and a commission-based business helping athletes obtain scholarship funding to attend American universities.

18You maintain a good relationship with your ex-wife and are hoping to reconcile with her. She knows generally about your current offending but not the details of it.

Plea in mitigation

19In relation to the circumstances of your offending, your counsel submitted that you were obsessed with giving your children a perfect Christmas in 2016 and bought the boat believing (mistakenly) that you could pay for it. The boat has been repossessed by Yamaha.

20In mitigation, your counsel relied on a number of matters, including delay, your early plea of guilty, particularly during the currency of the COVID-19 pandemic,  your remorse, and the greater toll that imprisonment will have on you in the light of your poor mental health and the pain resulting from the cyst on your spine. It was submitted that you have demonstrated that your prospects of rehabilitation are excellent because you have not committed any offences since 2016 and have been working hard to support your children in the United States.

Whilst conceding that ordinarily your offending would call for the imposition of a term of imprisonment, it was submitted that in your case, all of the purposes of sentencing could be satisfied by the imposition of a suitably crafted Community Correction Order with conditions including supervision, unpaid work and mental health treatment.

Sentencing considerations

21In the light of your four prior convictions for dishonesty offences, together with the circumstances of this offending, general deterrence and specific deterrence remain important sentencing considerations.

22I accept that your offending occurred against the background of your bankruptcy and marriage breakdown. However, the offending involved a serious breach of Ms Dekas’ trust in impersonating her in order to obtain a loan from Yamaha for the purchase of the boat. The offending comprised forging or altering a number of documents to support the application for that loan. Fortunately, Yamaha was able to repossess the boat within a few months. Were it not for the matters I address below, I consider that a combined sentence would be required.

23I accept the matters put in mitigation on your behalf.

24I turn first to the issue of delay. You are being sentenced today for an offence committed in 2016. You are not responsible for all of the delay which has occurred. You were not interviewed until February 2019 and then not charged until December 2019. You indicated a plea of guilty in March 2020 but then the COVID-19 pandemic and your accident supervened and caused further delay. So you have carried the burden of facing a possible sentence of imprisonment for at least two years, and this has weighed heavily on you. I acknowledge that the sentence imposed upon you should be moderated somewhat in respect of that portion of the delay for which you are not responsible.[7]

[7]        The Queen v Cockerell [2001] VSCA 239 [10].

25Secondly, I accept that you have expressed remorse in your record of interview, where you made admissions in relation to the offending and cooperated with police, and that remorse is also reflected in your plea of guilty. You also expressed remorse to Ms Wagner.

26Thirdly, you indicated a plea of guilty at the earliest opportunity, thus sparing the community the time, inconvenience and expense of a trial. The utilitarian value of your plea is significant and warrants a moderation of sentence. In addition, your plea has been made during the currency of the COVID-19 pandemic, when the courts are under particular pressure. For this reason, a further perceptible moderation of sentence is warranted.[8]

[8]        Warboyes v The Queen [2021] VSCA 169 [39].

27Fourthly, since your offending, you have committed no further offences. This is in spite of facing significant challenges to your mental and physical health caused by the trauma you experienced in 2018, and the physical and neurological damage you suffered in the fall from a ladder in 2020. Notwithstanding these challenges, and a mental state which appears particularly fragile at present, you have continued to work more than full-time to support yourself and your two children who are stranded in the United States. Your conduct since 2016 demonstrates that your prospects of rehabilitation are excellent, provided that you address the mental health issues that you face.

28Fifthly, I consider that due to your physical condition (cyst on the spine causing neuropathic pain) and your very poor mental health (depression, suicidal ideation requiring medication and weekly consultations with a psychologist), the impact of imprisonment upon you would be much greater than upon the ordinary prisoner, particularly in the light of the COVID-19 related restrictions within the prison system.

29Finally, I consider that all the relevant purposes of sentencing: denunciation, just punishment, specific and general deterrence, rehabilitation and community protection, taking into account the principle of parsimony, can be addressed by the imposition of a Community Correction Order with appropriate conditions.

Conclusion

30Simond Jarrold Harland, on the charge of obtain financial advantage by deception, you are convicted and sentenced to a two-year CCO with conditions of supervision, 200 hours of unpaid community work, and mental health treatment. I direct that all of the hours satisfactorily undertaken for mental health treatment and rehabilitation are to be counted as hours of unpaid community work.

31You will need to report to Box Hill Community Correctional Services within two working days. Because of the restrictions introduced in response to the COVID-19 pandemic, that will be by telephone.

32The mandatory conditions of the order include that you must not commit any other offences during the period of the CCO - that is, 2 years from today - for which you could be imprisoned, even if a court would not choose to impose imprisonment in relation to those offences. You must not leave Victoria without first getting permission to do so from a Corrections officer, you must obey all lawful instructions from and the directions of Corrections officers, and you must report to and receive visits from a Corrections officer. Finally, you must notify a Corrections officer of any change of address or employment within 2 clear working days after the change. Do you understand all the conditions I have imposed and the general terms that apply?

33Your counsel will explain the order to you in more detail. You must make sure that you comply with the order because if you breach a condition of the order, aside from a direction of the Secretary, that is an offence punishable by 3 months’ imprisonment. You will then be dealt with for breaching the order, but will also be exposed to the possibility that you will be brought back and re-sentenced for the original offending. If you are re-sentenced, you may be sentenced to a term of imprisonment. Do you consent to the making of a CCO?

34I declare pursuant to s 6AAA of the Sentencing Act1991 that, if you had not pleaded guilty to the charges and if you had been found guilty of the charges by a jury, I would have convicted and sentenced you to a term of imprisonment of 6 months followed by a 12-month Community Correction Order.