Director of Public Prosecutions v Harvey
[2024] VCC 1162
•2 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-00641
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| DAVID ALEX HARVEY (aka DAVID JAMES ALEXANDER) |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 1 August 2024 | |
DATE OF SENTENCE: | 2 August 2024 | |
CASE MAY BE CITED AS: | DPP v HARVEY | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1162 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Attempt to pervert the course of justice
Legislation Cited: Sentencing Act
Cases Cited:Guden v The Queen (2010) 28 VR 288; Treloar v The King [2023] VSCA 214; Hill v The Queen [2021] VSCA 349; Saleem v The Queen [2014] VSCA 190
Sentence: 2 years’ imprisonment with a non-parole period of 16 months
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Ms C. Jeong | Office of Public Prosecutions |
| For the Accused | Ms E. George | Slink & Keating |
HER HONOUR:
1David Alex Harvey, you have pleaded guilty to one charge of attempting to pervert the course of justice. The maximum penalty for that offence is 25 years’ imprisonment.
Background
2On 5 May 2022, you were facing a plea hearing at Melbourne Magistrates’ Court, before Magistrate Stary. There were a number of charges of obtaining property by deception and one charge of obtaining a financial advantage by deception. One charge related to offending in January 2021. You had sold four tickets to the Australian Open on Gumtree, for $300 each ticket. When the buyers got to their seats, they found them already occupied. Investigations showed that you had purchased the tickets, and then cancelled them, so that they had been re-sold to new patrons.
3The next charge related to you defrauding the Bayside Pet Centre. You had boarded two dogs at that kennel. You were using the name David Alexander. You initially paid with a credit card in February 2021, but the payment was reversed by the bank. When the Bayside Pet Centre followed up with you, you sent them copies of payment receipts. These were false, you never paid the Bayside Pet Centre the $3,775 you owed.
4You were employed by HIC insurance between January 2019 and February 2021.[1] Between the dates of 14 January 2020 to 3 August 2021, you lodged numerous claims for health insurance payments with NIB, Australian Unity, GMHBA and HCF. You would purchase insurance policies in false names, submit false invoices from healthcare providers, and receive the payments into your bank accounts. The breakdown of these charges was:[2]
(a) HCF – 4 May 2020 to 7 June 2020 – seven false claims, you received $2,167;
(b) Australian Unity – 3 April 2020 to 15 June 2021 – six policies in false names, 17 false claims, received $2,306;
(c) NIB – 14 January 2020 to 3 August 2021 - 25 policies in false names – 135 claims using false invoices – you received $33,676.75;
(d)
GMHBA – 25 April 2021 to 13 May 2021 – policies in the name of
David Alexander and Zara Ahmed (your then fiancée) - 10 false claims – you received $1,257.10.
[1]See transcript of plea hearing in Magistrates’ Court, page 12
[2]Transcript of plea hearing in Magistrates’ Court, pages 5-9
5I have recited the charges in that hearing in some detail, not because you are to be sentenced for them again, by me, but because they show the nature of your past dishonesty.
6Prior to the plea hearing in the Magistrates’ Court, your solicitors requested a restitution form from the informant, so that you could arrange repayment. An email from your solicitor to the informant included the following:[3]
'Mr Harvey had expressed deep remorse in relation to this offending and requested confirmation of how he could repay the money that he obtained by deception'.
[3]Summary of Prosecution Opening [4]
Offending
7In the course of the plea hearing before Magistrate Stary on 5 May 2022, your barrister told the learned magistrate that some restitution had already been paid to the NIB Health Insurance Group and the Bayside Pet Centre. Your barrister tendered three documents, which had been provided to your lawyers by you, which purported to show that payments had been made to:
(a) Bayside Pet Centre – in the full amount owing $3,775;
(b) NIB Health Fund - $20,000 in two separate transactions of $10,000 each.
8The sentence imposed for the fraud offences was a CCO of 18 months duration, with conviction. The conditions of the CCO were to perform 275 hours of community work. You were also fined $10,000 in aggregate on those charges.
9Following the plea hearing, your solicitor made enquiries about how the payments you had purportedly made could be deducted from the restitution order. It is apparent from these emails that your solicitor had also accepted the documents provided as genuine, which they were not.
10Further enquires were made by the informant, and it was discovered that the payments purportedly made by you had never been debited from your bank account and no money had been received by the Bayside Pet Centre, or NIB.
Procedural History
11You were interviewed in respect of this attempt to pervert the course of justice on 28 October 2022. You made no comment, as was your right. You were remanded overnight, and released on bail from the filing hearing on 29 October 2022. The conditions of your bail included requirements that you to surrender your passport and not apply for another, that you not leave the State of Victoria, nor attend any points of international departure.
12On 26 April 2023, following the third committal mention, you were committed to this court, for a plea hearing which was listed on 27 September 2023. The day before that plea hearing, you applied for an adjournment, on the basis that you needed to get representation. The plea was adjourned to 24 April 2024. You also had a hearing listed in the Melbourne Magistrates’ Court on 23 November 2023, in respect to a breach proceeding for the CCO imposed by Magistrate Stary, and for other charges.
13In October 2023, you applied for another New Zealand passport. This was in breach of your bail. From 12 October 2023, you failed to comply with your reporting obligations on your bail. On 22 November 2023, the AFP responded to an alert at the Perth Airport. You had been booked to leave the country, flying to New Zealand, in breach of your bail. You were prevented from leaving the country on that flight. I was told that you had booked one way tickets from New Zealand for yourself, your wife and your child to travel to the United Kingdom.
14You failed to appear at the Melbourne Magistrates’ Court on 23 November 2023, and warrants were issued. An application was also made for a warrant, in this court, which was granted.
15You were arrested in Western Australia, on 25 November 2023 and extradited back to Victoria.
16I am told that your outstanding matters in the Magistrates’ Court are for plea listed on 5 August 2024.
Personal Circumstances
17You are now 33 years old. You were 31 at the time of the offending. The following history is taken from your account to Dr Cunningham, and your lawyers.
18Your parents are New Zealanders, and you are also a citizen of that country, although you have never lived there. You were born in the United Kingdom. You completed high school and started at University but left studies to begin working. You were running a business selling access tickets to corporate boxes at sporting events.
19You say that a client introduced you to gambling, and you began stealing from the business to fund that habit. Your business partner suicided as a result of the financial loss to the business. You report feeling guilty about that.
20You report that you were married young, due to family pressure. Your family are conservative Christians and wanted you to marry the young woman whom you had been dating for around six months. After the suicide of your business partner, she ended your marriage. Apparently your family took her side and your sister, a lawyer, assisted her in the divorce proceedings.
21Then, at age 22, you moved to the United States. You worked in the same area, and formed a new relationship which lasted for a time. You say that it was in this period that you ceased communicating with your family. You were travelling between the USA and Australia. The offending in 2015 occurred in this time frame.
22You report being introduced to cocaine whilst working in the USA and became a regular user of that drug. You continued using cocaine up until the time of the plea before Magistrate Stary, and I note that one of the charges on that day was possession of cocaine.
23You decided to move to Australia fulltime in 2018, when you were around 28 years old. You worked for an insurance company, and also continued to work in the ticket re-sale business.
24
In approximately 2021, you met your current wife, Ms Ahmad. She and her family are practicing Muslims, and you took part in an Islamic marriage early in your relationship to enable contact, according to that religion. You married in a civil ceremony shortly after the plea hearing in May 2022. You have a child with
Ms Ahmad, born in January 2023. You describe your wife as caring, loyal and supportive.
25You have not had contact with your family for many years, but in the middle of this year, you received an email from your father, who now lives with your mother in New Zealand. He said he would like to visit you, in Australia.
26In May 2023, you reported to police an assault and burglary committed by a group of men seeking to recover money from you. I will refer to these incidents again later in these reasons.
27
I note that in some of the material, you have used the name David James Alexander. I was told that you changed your name by deed poll, in New Zealand, but that many documents here in Australia are still in your original name,
David Alex Harvey.
Psychologist Report
28You were assessed by Dr Aaron Cunningham, a forensic psychologist, on 26 and 29 July 2024. Dr Cunningham stated that you exhibited traits for Antisocial Personality Disorder and Narcissistic Personality Disorder. He also noted that you told him that you had been diagnosed with Post Traumatic Stress Disorder when you were first incarcerated. You were placed on antidepressants, but due to increased anger linked to the medication, you ceased using it. Dr Cunningham, in a supplementary letter said that on the basis of his clinical assessment and testing, you did not meet the diagnostic criteria for PTSD. Any symptoms that you reported were related to the incident in May 2023, when you were assaulted.
29
You told Dr Cunningham you had a habit of ‘lying about everything, even inconsequential things'. Dr Cunningham is of the opinion that your account of your psychological symptoms was truthful. He stated in his report that you expressed a desire to improve your mental health and address your personality problems.
Dr Cunningham opined that you would benefit from engaging with psychological intervention in the community. He considered that you would need 'long-term psychological intervention in the community to create new patterns of thinking and behaviour'.
Other Offending
30You have one prior finding of guilt. On 3 September 2015, you were sentenced in the local court in New South Wales for a charge of dishonestly obtaining financial advantage by deception. You were sentenced to seven months’ imprisonment, which was wholly suspended, and you were required to pay $10,000 in compensation. I was told that this offending involved you sending a false screenshot purporting to be a payment of $10,000 payment for a booking for a private suite at the March 2015 Golden Slipper Day.
31
On 9 August 2023, following the offending before me, you were sentenced at Melbourne Magistrates Court on a further charge of obtaining property by deception. You were fined $1,500. The offending was, on that occasion that on
4 March 2022, around three months prior to the plea hearing before Magistrate Stary, you had sold fake tickets to the Grand Prix, via a Facebook group. You received $1,500 from the victim, provided the false tickets to him and then you ceased responding to his messages.
32The upcoming matters which are listed for plea on 5 August 2024, include allegations where on two separate occasions, you obtained $850 for the sale of an item over the internet. The first occasion was on 29 August 2021 and the second on 7 February 2022. In each instance, having received payment, you then stopped responding to the victim-buyer.
33In addition to those court matters, I note that your complaints to the police about the assault and extortion in May 2023, arise in respect to a grievance the alleged offender had with you. In your report to police on 22 May 2023, you told the police officer that you had agreed to buy a Rolex for the offender, who gave you $25,000 for this purpose. The alleged offender is said to have threatened you and demanded $300,000 to be paid, or they would kill you. You alleged a group of men assaulted you. The second report on 23 May 2023, sets out 'The extortion is believed to be perpetrated due to the victim [you] being the suspect for a $600,000 deception, with the extortion thought to be an attempt to retrieve money lost'.
34I only have regard to your history of other offending, prior to and subsequent to the offending on 5 May 2022, in assessing your prospects of rehabilitation. Furthermore, whilst it was accepted before me that the attempt to leave the country, whilst on bail for this offence, aggravated the offending, I will not use those events in that way in assessing the gravity of the offending for which I must sentence you. I have regard to your conduct in seeking to leave Australia only as demonstrating an inability of abide by court orders and lack of contrition.
Guilty Plea
35The principal factor in mitigation was your plea of guilty. You pleaded guilty at an early stage in the proceeding. You are thus, entitled to a discount or reduction in your sentence, to reflect the utilitarian benefit of that plea. I do not consider that the plea is evidence of contrition, rather, it appears to be an acceptance of responsibility in the face of a strong case against you.
Deportation
36In Guden v R,[4] the Court of Appeal said that the prospect or risk of deportation was relevant to (a) the fear of deportation making the burden of imprisonment more onerous for the offender than for a person not facing that risk and (b) the loss of opportunity for remaining in Australia.
[4]Guden v The Queen (2010) 28 VR 288
37In your case, there is reason to be concerned that you will not be permitted to remain in Australia, but any concern that you may have about that is in circumstances where you have made multiple moves in your life, New Zealand is not a risky place for you to live, despite your lack of history there, English is the main language in that country and its culture is fairly similar to Australia. Furthermore, I was told that when you were attempting to leave Australia in November last year, you were moving, without return tickets, with your wife and child to the United Kingdom. Whilst your wife and child are Australians, there is no evidence suggesting that they would not be willing to join you in New Zealand, if you had to live in that country.
38Thus, any concern that you may have about losing your ability to stay in Australia must be limited. You do not have any ties here other than your wife and child, who seem willing to follow you.
Prospects of Rehabilitation
39Your counsel very properly accepted your prospects of rehabilitation are very guarded. You have provided a history of dishonesty in the Australia that led to a business partner committing suicide. Whilst you told Dr Cunningham that you continue to feel guilt about this, it did not deter you from further dishonesty.[5]
[5]Cunningham page 2
40Your other offending further demonstrates your willingness to defraud others for your own benefit. You continued to offend, even when charged with other dishonesty offending. You breached bail, taking a number of steps to leave not only Victoria, but the country. Your explanation to your counsel for your planned flight to New Zealand was that you wanted to visit your wife and child, who was ill. This was far from the whole story, if it was true at all.
41You are a habitual liar, who repeatedly lies or engages in conduct designed to get some sort of advantage for yourself, regardless of the impact on any other person. Whilst having a wife and child sometimes acts as a reason for people to reform their way of life, in your case this does not seem likely, given your continued offending whilst in the relationship with your wife, and the events after the birth of your son.
42I consider that specific deterrence, and protection of the community are powerful factors in sentencing you.
General Deterrence & Just Punishment
43In a plea hearing, a court receives a history of an accused’s person’s life, and a range of other material such as reports, which are largely based upon the words or reporting of an accused without other supporting material. The courts, particularly the Magistrates’ Court, with a high volume of matters to consider, cannot always demand or require corroborative material, and the court must act on the information given.
44Offending such as yours has the capacity to interfere, not only with the instant matter, which was your sentencing, but it also undermines the expeditious hearing and completion of matters before the court. I was referred to a passage from Treloar v The King, which applies also to court hearings:[6]
'It is important that the prosecution be able to rely on and accept, on their face, the integrity of documents presented to them. At a practical level, it can be accepted that the prosecution branch of the justice system, and particularly police prosecutors, do not have sufficient resources to enable them to inspect and verify all documents and other material provided to them in relation to the cases, in which they are engaged. It is important, for the proper and efficient administration of justice, that the prosecution be able to rely on the integrity of such documents and materials. The offending of the kind engaged in by the applicant is apt to undermine that important aspect of our justice system and as such, to affect and compromise the proper administration of justice'.
[6]Treloar v The King [2023] VSCA 214, [32]
45In an earlier case the Court of Appeal had said:[7]
'[A]ttempting to pervert the course of justice is an innately serious offence. Any attempt to pervert the course of justice must be viewed seriously and denounced appropriately. This is especially so in a case such as the present, where the attempt takes the form of seeking to mislead a court for personal advantage. Moreover, the applicant’s offending was not spontaneous. It was a calculated attempt to deceive the magistrate, and the police, in the interests of achieving a favourable sentencing outcome.
…
Offending such as the present strikes at the heart of the administration of criminal justice, and is designed to erode the confidence that should exist between the Bench and those appearing for sentence.’
[7]Hill v The Queen [2021] VSCA 349, [30] footnote omitted; [36] citing Saleem [2014] VSCA 190, [35]
46In the case of Hill, the court said that misleading a court to gain an advantage in sentencing, was more serious than misleading the police.[8]
[8]Hill v The Queen [2021] VSCA 349, [34]-[35]
47Later, in the case of Treloar, the court said:[9]
'For those reasons, the sentencing purposes of denunciation and general deterrence are accorded particular weight in cases involving an attempt to pervert the course of justice. It is important that the sentences imposed in such cases be sufficient to properly express the condemnation by the courts and the community for the kind of conduct engaged in by the applicant. In addition, it is necessary that sentences be adequate to deter other likeminded persons in the community from engaging in such conduct'.
[9]Treloar v The King [2023] VSCA 214, [33]
48As to your reasons for offending, I accept Dr Cunningham’s opinion that:[10]
'Mr Harvey’s tendency to lie to and exploit others, combined with his desire for material wealth, cultivated the antisocial and narcissistic traits that were present in his personality profile. He did not consider the consequences of his behaviour to himself or others and was driven by short-term gain. Lying and deception had become a habitual behaviour to avoid problems. In my opinion, this mindset and personality style was the main contributor to his offence behaviour'.
[10]Cunningham page 4
Comparable Cases
49I was referred to several decisions of the Court of Appeal and also two sentences from this court. These decisions included Treloar, Hill, and a case of Saleem v The King.[11]I have also had regard to the discussion as to penalty and range in Hill and the cases which were referred to in that decision.
[11]Saleem v The Queen [2014] VSCA 190.
50A significant factor in your case, in assessing your culpability, is that you did not offend spontaneously. There was preparation and planning, lying to your lawyers, and creating false documents. Such behaviour a consistent theme in your history. You used those methods to trick your lawyers into unintentionally deceiving the court.
Disposition
51Your counsel submitted that it would be within range to impose a sentence of imprisonment, combined with a CCO, but she conceded also that a gaol term with a non-parole period was within range. The prosecution made the same submission.
52I consider that a sentence of imprisonment with a non-parole period is required, to meet the sentencing purposes of just punishment, general deterrence, denunciation, specific deterrence and protection of the community. Whilst I have had regard to your past failure to comply with a CCO, and your breaching bail, these are not determinative of the type of disposition – that is whether to impose a non-parole period or a CCO.
53Attempting to pervert the course of justice is a serious offence. The maximum penalty of 25 years demonstrates the gravity with which Parliament, on behalf of the community, views such criminal behaviour. Even low-level examples of this offence are still serious.
54Your offending was not a low-level instance of the offence. In preparation for the offending on 5 May 2022, you created the false payment records, provided them to your solicitor and provided instructions about your willingness to repay the victims. Even accepting your explanation that you were frightened to go to gaol, this offending is another instance, in your life, of lying to get a benefit for yourself, regardless of any other concern.
55The sentence on the charge of attempting to pervert the course of justice is two years’ imprisonment. I set a non-parole period of 16 months.
56Pursuant to s18 of the Sentencing Act, I state that you have already served 252 days of pre-sentence detention not including today and I direct that that declaration be entered into the records of the court.
57Finally, pursuant to s6AAA I state that if you had not pleaded guilty, I would have sentenced you to three years imprisonment, with a non-parole period of two years.
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