Director of Public Prosecutions v Hunter
[2013] VCC 1359
•20 September 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00952
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| THOMAS HUNTER |
---
JUDGE: | HER HONOUR JUDGE CANNON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 13 September 2013 (Plea); 20 September 2013 (Further Plea) | |
DATE OF SENTENCE: | 20 September 2013 | |
CASE MAY BE CITED AS: | DPP v Hunter | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1359 | |
REASONS FOR SENTENCE
---
Subject: CRIMINAL LAW
Catchwords: Sentence – Obtain Financial Advantage by Deception – Attempt Obtain Financial Advantage by Deception – Extensive criminal record – Identity theft – Bipolar disorder
---
APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr G. Hughan | Mr C. Hyland, Solicitor for Public Prosecution |
| For the Accused | Mr P. Marin | Stephen Andrianakis & Associates |
HER HONOUR:
1 Thomas Hunter, also know as James Campbell Allan, you have pleaded guilty to four charges of obtaining financial advantage by deception which has a maximum penalty of 10 years imprisonment and one charge of attempting to obtain a financial advantage by deception, which has a maximum penalty of 5 years imprisonment. As the maximum terms reflect, these offences are considered by Parliament to be serious offences.
2 The Crown opened your offending as follows:
3 By way of introduction, I was told that at the time of the offences you were aged between 52 and 53 years. Your birth name is James Campbell Allan and you have also used the name Pierce Buchanan in the past.
4 Sometime before 12 December 2006 you acquired documentation which identified you as Bruce Stewart Gibson. The real Bruce Stewart Gibson had been the victim of “identity theft”. In January 2007 he discovered that his driver’s licence (No. 027135389) had been falsely used to incur demerit points against him. I was told that there had been a break-in at a Vic Roads office a number of years ago and machines producing drivers licences were stolen as well as licence identifications, including that of Mr Gibson. I was also told that his identity was apparently sold on the ‘black market’ and was used by a number of people, including you.
5 Between 2007 and 2008 you obtained a housing loan facility and three credit cards, purporting to be Mr Gibson. You also tried to obtain a fourth credit card.
The Offences
Charge 1 – obtaining a financial advantage by deception
6 Sometime before 12 December 2006, using the name of Bruce Gibson, you sought a home loan quote from the ANZ Bank at Ashburton. On 12 December 2006, an employee of the bank provided a quote for a loan amount of $441,000. You were seeking that amount of finance for the purpose of funding 60% of the purchase of a new home.
7 On or about 30 January 2007, you, purporting to be Mr Gibson, and your wife, Karen Margaret Allan, using your own name, applied to the ANZ Bank for a home loan of $441,000. The purpose of the loan was to fund the purchase of a newly constructed home which was subsequently allocated the address of 10 Homebush Court Doncaster East. The address which you and your wife gave as being your current address at that time, that is, the time of the loan application, was in Victoria Avenue Macleod.
8 On 15 February 2007 the application was approved. The following day the ANZ Bank opened a home loan account in the names of Ms Allan & Mr Gibson. $441,000 was paid by the Bank towards the settlement of the Homebush Court property and the ANZ Bank took a mortgage over the property as security for the loan.
9 The loan was serviced with regular payments of the required monthly interest amount for approximately 12 months, at which time it was re-financed with the Bank. After that time, monthly interest payments continued regularly until March 2009. From then until February 2010 no payments were made, resulting in an increase of the amount owing on the loan. Monthly payments then resumed. As at 23 May 2013, $483,294.31 was outstanding on the loan. However, I was told by your Counsel that the mortgage payments are in fact up to date.
Charge 2 – obtaining a financial advantage by deception
10 In February 2007 you, as Mr Gibson, applied for an ANZ ‘First Free Days’ Visa credit card. That application was approved. On or about 15 March 2007 you were issued with a credit card in the name of Bruce S Gibson of 10 Homebush Court, Doncaster East (The account number was 4564-6210-1273-7311.) The credit limit was $15,000.
11 The account statements show that the credit limit was reached within about six months, after which you made payments, mostly of the minimum monthly required amount. You continued to operate the account in this way until about February 2009. From that date, you paid only token sums such as $10 per month. Around March to May 2010 payments totalling $2,500 were made. After that time the account had a balance owing of $13,543. 97, which was still owing as at May 2013 (not including any interest amounts which were not added from May 2010, according to the statements).
Charge 3 – obtaining a financial advantage by deception
12 On 4 April 2008 you submitted an online credit card application to the National Australia Bank (NAB). You gave your name as Bruce S. Gibson and provided Mr Gibson’s licence number 0217135389.
13 The application was approved. In June 2008 a credit facility, being a Master Card account number 5313556610471767 was created in favour of Bruce Gibson. The credit limit was $10,000.
14 On or about 2 June 2008 you attended the Doncaster East Branch of the NAB and provided proof of identity, being a driver’s licence in the name of Bruce Gibson and a council rates notice.
15 Within about three months, you had reached the credit limit, by a combination of purchases and significant cash withdrawals (e. g. for $4,500 on 6 June 2008.) From that time to June 2010, you kept the account operating by paying mostly the minimum monthly required amount. However, no further payments were made after May 2010. In January 2011 the NAB closed the account and referred the amount owing, $10,555.77 to a debt recovery agency, Lion Finance.
16 Lion Finance then contacted the real Mr Gibson, asking that he pay the outstanding amount. He protested that he was not liable for the amount owed and contacted the NAB and also asked that the matter be investigated by the Bank’s fraud section. He also reported the matter to police.
Charge 4 – obtaining a financial advantage by deception
17 On 6 April 2008, you made another online credit card application. On this occasion, it was for an American Express Gold Credit card, with a credit limit of $2,000. You again gave your name as Bruce S. Gibson, born 25 August 1958.
18 The application was approved. On or about 21 April 2008 American Express issued a credit card in favour of Mr Gibson (numbered 3760 844215 61002).
19 You made regular purchases using the credit card. You mostly paid the minimum monthly required payments, except for May 2010 and March 2011 in which you paid amounts totalling almost $1,800.
20 In February 2011, the real Mr Gibson informed American Express that he had not applied for or received this credit card. The account was cancelled. Due to the payment made by you in March 2011 there was no money outstanding.
Charge 5 – attempt to obtain a financial advantage by deception
21 On 4 April 2008 you submitted an online credit card application to Citibank. You again gave your name as Bruce S. Gibson, born 25 August 1958, and said you were an employee of Allan Constructions. In support of the application you faxed a copy of a driver’s licence bearing your photograph, but in Mr Gibson’s name and with the licence number of Mr Gibson (0217135389). You also provided Citibank with an ANZ account statement and a payslip for Bruce Gibson from Allan Constructions. The application was for a $30,000 credit facility, but was not approved.
The arrest of the accused
22 On 22 January 2013 you attended Doncaster Police Station by pre-arranged appointment. You were arrested. Police commenced a record of interview, which was suspended so they could attend at 10 Homebush Court, your home address, with you and execute a search warrant.
23 During that search, police found and seized various documents in the name of Bruce Gibson, including an ANZ home loan account statement relating to the offending in respect of Charge 1.
24 After the search, police returned to the Doncaster Police Station with you where the interview was resumed. You made “no comment" answers in relation to the allegations put to you.
25 You were charged that day and released from the police station.
26 A most serious aspect of your offending is the fact that you used someone else’s identity in order to secure credit facilities for yourself, or in one case, you attempted to do so. This has caused Mr Gibson a good deal of difficulty, exposing him to liabilities he did not incur and, effectively, has put his reputation in question. As the learned prosecutor Mr Hughan said, you engaged in purposeful deliberative conduct over a significant period of time. You committed the first of these offences in February 2007 and you committed the last of these in June 2008, which means that you went to the time and trouble of setting up credit facilities dishonestly and with the use of Mr Gibson’s identity on a number of separate occasions over a period of more than 12 months.
27 Your offending in respect of Charges 1 and 2 is aggravated by the fact that you were subject to two suspended sentences and one community corrections order at the time you committed these. Indeed, one of these dispositions was imposed the day before you committed Charge 1. Although you had been diagnosed as suffering bipolar disorder in 2004, Mr Marin did not submit that your moral culpability was reduced because of this and there was not psychological material directly on point in any event. In all the circumstances, I regard your moral culpability as fairly high and your conduct must be denounced. Further, I must impose a punishment which is just in all of the circumstances, allowing for one of those circumstances is that you suffer bipolar disorder.
28 You have a fairly extensive criminal history, commencing in 1972. Your history includes a significant number of prior convictions for dishonesty offences. In 1979 you were fined in relation to a theft and in November 1990 at the Melbourne Magistrates Court you were dealt with for 217 theft charges and 8 attempted thefts. You were fined $150 in respect of each charge and ordered to pay $36,830 restitution.
29 In March 2000 you were convicted of one charge of burglary, one charge of attempted theft and one charge of impersonating a member of the police force as well as possess regulated weapon; you were convicted and sentenced to a total effective sentence of 3 months imprisonment. In July 2004 you were dealt with for a number of offences including 2 charges of handling or receiving stolen goods and two charges of theft, one of which was the theft of a car. You were convicted and sentenced to a total effective sentence for these and other matters of 1 year 2 months imprisonment which was to be served cumulatively upon any uncompleted term owed to the Parole Board and you were to undergo a term of 6 months before becoming eligible for parole.
30 On 24 March 2006 in this Court you were convicted of armed robbery, amongst other charges, and were sentenced to a total effective term of 15 months imprisonment, which was wholly suspended for 2 years and you were also given a Community Corrections Order for 12 months. Your counsel told me about the circumstances of the armed robbery which are set out in the sentencing remarks of Her Honour Judge Cohen. You committed the armed robbery after you had a minor collision with another driver and it was said that you held a comb near the other driver's throat, demanding that he pay you $100 for the damage to your mirror; he gave you $95 and you drove away.
31 Over and above the matters to which I have just referred, you have prior convictions for offences of violence including intentionally causing serious injury, and reckless conduct endangering serious injury as well as a number of unlawful assaults. You also have convictions for driving offences and drug offences including trafficking in a drug of dependence in 1993 for which you were sentenced to 5 years imprisonment with a non-parole period of 4 years and in 2000 you were sentenced to 2 years imprisonment for possessing equipment for the manufacture of a drug for the purposes of trafficking; this was the same occasion on which you were sentenced for intentionally causing serious injury and you were sentenced to a total effective term of 3 years imprisonment with a non-parole period of 1 year 9 months.
32 Therefore, over and above the offences for dishonesty, you have a significant history of disregarding the law in the various ways that I have set out and these are matters which are relevant to my sentencing task in various ways. As previously referred to, you committed Charges 1 and 2 on the indictment before me during the operational periods of two suspended sentences and a Community Corrections Order. One of these dispositions was in respect of the armed robbery to which I have previously referred and the second of these was on 15 February 2007 when you were sentenced to one month imprisonment for an operational period of twelve months for drive whilst authorisation was suspended and stating a false name and address. As Mr Hughan pointed out, you initiated the first offence for which I now sentence you, as I have already said, on the day after you were dealt with for the latter matter.
33 Further, there are subsequent matters being a threat to inflict serious injury on 18 November 2011 for which you were fined $1000 and on 7 February 2013 you were convicted of possession of a chemical which, I was told, appeared to be a pre-cursor for drug manufacture. You were sentenced to 12 months imprisonment which was wholly suspended for 12 months for this offence.
34 I take into account in your favour that you have done what you can to service some of these credit facilities which were put in place by you and which is the subject of the sentence before me, even though, as your Counsel has said, this was done in order to avoid detection. I was told that you took out the ANZ mortgage, using Mr Gibson’s identity, as you were a bankrupt and would have been unable to do so in your own name. The mortgage was put in your bogus name but in your wife’s real name and presumably, with the details you each provided as to your financial situations, whatever that was. The mortgage was approved. Your wife has always worked as an audiologist and her income together with yours as a personal trainer supplemented by your social security pensions were apparently the sources of your income.
35 Notwithstanding that there was a significant gap in the time that mortgage payments were made, I am told that the mortgage payments are currently up to date. It is unclear as to the course that the bank will take in respect of the property, but it does seem more than likely that they will sell it. As your family home, this will be a hardship for your family but it was not put that there would be exceptional hardship and therefore, this is not something that I factor in. However, I do take into account that this will cause you some angst, no doubt, in the knowledge that your family may well be deprived of the family home, albeit that this was obtained through unlawful means.
36 In relation to the ANZ credit card Mr Marin said that this was offered to you and you took it rather than actively seeking this out. That may be so, but not only did you take the card, you used it to the point that the credit limit of $15,000 was reached in a very short period of time. The outstanding balance of $13,543.97 was still owed as at May 2013 excluding interest from May 2010.
37 According to you, you did not receive bank statements for this after two or three years, however, this does not accord with the documentary evidence. It may well be, as the learned prosecutor suggested, that you closed your mind to this situation, but I do not accept that the bank stopped sending you statements as to what you owed. In respect of this account, I was told by Mr Marin at the plea hearing that in fact $7000 was currently due and you had been negotiating with the bank about this. In support of this contention, he provided a document dated 4 July 2013 via email which has been referred to today and a copy of this was provided to the Crown. The letter from Collection House Ltd. records the sum due as being $7,500 and indicates an offer that they would accept $5250 in satisfaction of the debt. I sought clarification from the parties as to some aspects of this matter and received responses with the other party copied in. I understand from the Crown that the debt of $13,543.97 was actually incurred by you, but that the debt was sold for a reduced figure to the collection house and they made an offer to you for a further reduced figure in a bid to encourage you to pay this sum. The Crown’s position, having inspected the letter from the collection house of 4 July 2013 is that this was an offer made by them rather than a figure arrived at due to negotiation with you. This appears to be accepted by you as indicated by your counsel today. Ms Naimo, Crown Instructing Solicitor, indicated in her email to the court of 18 September 2013 that upon the fraud investigation team at the bank becoming aware that the debt had been sold to the collection house, the bank now intends to recall the debt. Mr Hughan, Counsel for the Crown, confirmed this in further submissions to the court this morning. Mr Marin said in his email that you had been hopeful of repaying the reduced figure by 26 July 2013, being the set due date, but had been unable to raise the funds and that you had also been unable to extend the due date before the plea hearing. In any event, no payment has been made by you in relation to this debt which, it would appear, the ANZ bank are now intending to recall and seek the full amount.
38 In respect of the National Australia Bank debt, your counsel submitted that you maintained that you had not incurred the sum owing on that account. It was suggested by Mr Marin that others using the same identity may have incurred a good deal of the debt rather than you. He said that you had spoken to the NAB about this situation and indicated that the amount owed by you was nowhere near the figure claimed by the bank. However, the documentation all appears to points in the other direction showing that the relevant bank statements were going to your address; that you were frequently making minimal repayments in respect of the account and that there were significant debit transactions occurring in places close to where you lived. I reject that you were not responsible for the entirety of this debt and it gives me some cause for concern in terms of your prospects of rehabilitation that you would proffer such a position in a bid to apparently avoid taking full responsibility for your actions.
39 In respect of the American Express card, I take into account in your favour that there is nothing owed and of course, in respect of the attempt charge, no sum of money was advanced to you, although not for the want of trying. I note that you also gave a false payslip, purporting to be working for a construction company.
40 I take into account your background: You were born in Scotland and came to Australia when 13 years old. You attended a high school until Year 10 and then left to pursue a carpentry apprenticeship which you did not complete. You then worked as a sprinkler fitter for a fire engineering company for 13 years. For the next 7 years you bought, renovated and sold houses which proved to be a profitable enterprise and from this income you then opened a night club in St Kilda in the mid 1990’s. I was told that this venture led to your downfall. You lost a great deal of money and were unable to sell the business to recoup your losses which forced you to keep borrowing to keep things afloat. In the end, you lost the club to your creditors and owed a significant sum of money. Since that time you have worked as a personal trainer on a part-time basis to supplement a disability pension which you have received since being diagnosed with bi-polar disorder in 2004. I was told that, on a voluntary basis, you also assist your son, Blake, who has a landscaping business.
41 You were married in 1982 and have two adult children. As I previously said, your wife has worked as an audiologist for many years. Your 28 year old son has a university degree and is pursuing another in a bid to further some business ideas in China. He suffers from Crohn's disease and lives at the family home and has been monitored by you. When he has an attack, you have taken him to hospital. Your daughter is a qualified financial officer.
42 According to the report about you from Carla Lechner, psychologist, you were expelled from school for what you termed ‘stupid behaviour’; but you did not engage in violent behaviour until you were 16 years which coincided with ‘the onset of heavy drinking’. You developed an awareness of your mental health problems during your carpentry apprenticeship which was part of the reason you left. You attempted to mask severe anxiety and panic attacks with heavy drinking and you resorted to kick boxing and boxing as a means to develop an exterior persona. Ms Lechner was of the view that during your early adult years you were exhibiting symptoms of Bipolar II disorder, even though a formal diagnosis came much later.
43 Unfortunately, after leaving gaol in 1997, having been prescribed Xanax and Zoloft, you became addicted to benzodiazepine which caused your behaviour to become increasingly erratic. When remanded in 2004, you were taken off all drugs which was a most difficult experience for you, exacerbated by a nasty assault upon you by another inmate. At this time you were assessed psychiatrically and prescribed an anti-depressant which stabilized your mood and reduced anxiety. This worked for a few years, but you then became suicidal and you were placed on another medication. You were then trialled on others from time to time as the efficacy of these, which were principally anti-depressants, were short lived. You have been recently placed on a medication regime which has proven effective, and you had been hopeful of attending an appointment at St Vincent’s Hospital in December for assessment as to experimental treatment. It is not clear if this appointment can be accommodated in view of the fact that you will be incarcerated at this time, but I will make the relevant authorities aware of this matter in the hope that such an appointment can be kept.
44 I understand that you have been treated and counselled for some time by your general practitioner in conjunction with a psychologist at the same practice. According to this report you have been compliant with treatment over the past few years and have stabilised emotionally and have abstained from alcohol and drugs, apart from your prescribed medication which is set out in a letter from your general practitioner. I also take into account a report from Jennifer Lawrence, psychologist, although it is dated 27 October 2012 and so is about 12 months old.
45 Further, I take into account that you have had your prostate removed after it was found to be enlarged. According to Carla Lechner it was removed because you had been diagnosed with prostatic cancer. However, having heard from Mr Marin this morning and after taking instructions from you, it was not confirmed to be cancerous but removed nevertheless. You continue to have some discomfort in your stomach and urination problems and have been under the care of a urologist. I make some allowance for these difficulties in that time in gaol will be somewhat harder for you than for those without such ailments. Mr Marin said you also suffer from cardiac arrhythmias, but this is not confirmed by the medical report. Although it does indicate that you have suffered from asthma in the past, it does appear that your medical problems do not inhibit your work as a personal trainer or assisting your son from time to time in his landscaping business.
46 In your favour, I take into account your early plea of guilty which has saved the witnesses the time and trouble of giving evidence and which has saved the community the time and expense of running a trial. I take into account the early stage at which it was entered which entitles you to a sentencing discount in the sentence which you would otherwise receive.
47 I do not make an allowance for delay in circumstances where you were charged in January this year and had no notice of the charges before then, therefore, there has been little time for you to be anxious about matters hanging over your head and it cannot be said that since the time of your offending you have demonstrated that you are on the path to rehabilitation.
48 In all of the circumstances I must place a good deal of weight on the need to protect the community and fairly significant weight on specific deterrence after allowing for marginal reduction of the weight I attach to this because of your impairment of mental function.
49 Also, general deterrence is a factor to which significant weight should be ordinarily given. A strong message ought to be sent to others in the community who are tempted to offend as you have that such conduct will not be tolerated so as to deter others from behaving as you have. As you suffer from bipolar disorder, I shall allow for some moderation in the weight to be attributed to this factor, albeit to a limited degree. Unfortunately, in view of your significant criminal history and subsequent offending as well as the sustained nature of the offending in the case before me, I rate your prospects of rehabilitation as being fairly poor. In saying this I do note that you appear to have good family support to look to upon your release from gaol, however, such support does not have appeared to have served you well in the past insofar as leading a life without crime is concerned. You have reached an age where it is really up to you as to whether you wish to turn your life around and contribute to the community in a positive way or whether you wish to spend ever-increasing periods in gaol. For your sake and that of your family, I do hope you choose the first option.
50 The Crown submitted that a sentencing range of between four and a half and five and a half years with a non-parole period of between three and four years was appropriate in your case. Mr Marin submitted that this was an extraordinarily high range in view of the matters in mitigation. He submitted that a sentence of imprisonment which involved imposing a sentence of about six months for each charge was fitting if an immediate term was to be imposed.
51 Having considered all of the matters in your case and the weight which I must attach to all relevant sentencing considerations I am of the view that a sentence at the lower end of the Crown's range is warranted.
52 Would you please stand up Mr Hunter.
53 On all charges you are convicted and sentenced to the following terms of imprisonment:
54 Charge 1 3 years 6 months. This will be the base sentence.
55 Charge 2 18 months.
56 Charge 3 12 months.
57 Charge 4 10 months.
58 Charge 5 7 months.
59 I direct that 5 months of the sentence on Charge 2, 4 months of the sentence on Charge 3, 2 months of the sentence on Charge 4 and 1 month of the sentence on Charge 5 be served cumulatively with each other and with the base sentence producing a total effective sentence of 4 years 6 months and I direct you are to serve 3 years imprisonment before becoming eligible for parole.
60 I declare that you have already served 7 days imprisonment which will be reckoned as served under this sentence.
61 If not for your pleas of guilty I would have sentenced you to a total effective sentence of 5 years 8 months with a non-parole period of 4 years imprisonment.
62 I record that on 13 September 2013 I made an ancillary order in this matter by agreement of the parties being an identity crime certificate pursuant to s. 89F Sentencing Act 1991 in favour of Mr Bruce Stuart Gibson. When I say by agreement of the parties, I refer to the stage at which I made the order. I made the order having been satisfied that the necessary matters had been made out.
63 Take a seat for a moment please, Mr Hunter.
64 HER HONOUR: Is there anything arising from that?
65 MR HUGHAN: No, Your Honour.
66 HER HONOUR: Mr Marin?
67 MR MARIN: No, Your Honour.
68 HER HONOUR: Yes, thank you, if you could remove the prisoner.
- - -
0
0
0