Director of Public Prosecutions v J. Mendieta Blanco

[2020] VCC 1320

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-19-00407

DIRECTOR OF PUBLIC PROSECUTIONS

v

JULIO MENDIETA BLANCO

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JUDGE:	HIS HONOUR JUDGE JOHNS
WHERE HELD:	Melbourne
DATE OF HEARING:	31 July 2020
DATE OF SENTENCE:	25 August 2020
CASE MAY BE CITED AS:	DPP v J. Mendieta Blanco
MEDIUM NEUTRAL CITATION:	[2020] VCC 1320

REASONS FOR SENTENCE

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Subject:         Criminal Law

Catchwords:  Sentence – Plea of guilty – Receiving stolen goods – Gold jewellery –       $45,210 value – First time offender – Genuine remorse- excellent prospects of rehabilitation- 30 Month Community Correction Order with 250 hours community work.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Glynn Ms T. Ferrari	Office of Public Prosecutions
For the Accused	Mr P. Holdenson QC Mr W. Barker	Furstenberg Law

HIS HONOUR:

1.Julio Mendieta Blanco, you have pleaded guilty to a charge of receiving stolen goods.  The maximum penalty for this offence is 15 years imprisonment. 

2.The charge embraces nine occasions that have been rolled up into one charge.  There were seven occasions where you paid money for stolen goods received by you. 

3.The total amount paid by you on these occasions was $18,320.  You were also involved and complicit in two transactions with Mr Tenenboim during which $26,890 was paid, being a total of $45,210. 

4.Those nine transactions took place over less than a fortnight between
21 September 2017 and 3 October 2017.  You received gold jewellery, diamond rings and coins that you knew were stolen. 

5.You were an employee of Sell Your Gold Pty Ltd, trading as Gold Buyers Melbourne (hereafter Gold Buyers), but you had been involved with the company since 2012, at the suggestion of your younger brother. 

6.The details of your role, as set out in the submissions filed on your behalf, demonstrate that you had some vested interest in assisting the growth of the company.

7.You received a commission on transactions you were involved in.  You had been a director at one stage.  And the submissions indicate you had expectations of equity in relation to the pawn business. 

8.The total amount paid for the stolen goods, as I have stated, is $45,000 or thereabouts, which is a measure of convenience, rather than one which represents the true value of the items. 

9.Like your co-offenders, you have no criminal record.  The details of your offending are set out in the Summary of Prosecution Opening dated 30 July 2020, which was tendered as Exhibit A, and forms part of these reasons for sentence. 

10.Gold Buyers traded in gold, diamonds, precious gems and luxury watches.  A large part of the business involved purchasing gold jewellery from members of the public.  The purchase price for the jewellery was based on carat and weight.  A price was calculated on the spot and a cash payment was made to the customer.  The majority of the jewellery was then melted into gold bars in a separate room on Level 11 and then sold to a gold refinery. 

11.The instances of dishonesty that constitute your offending demonstrate that you had no hesitation in adopting the course of conduct that Mr Tenenboim engaged in and that your brother had endorsed. 

12.Your moral culpability was high, given your occupation and the setting your offending occurred in. 

13.You did not dwell on the origins of the stolen items at the time you received them, but you acknowledged, before me, that many of the items would have had great sentimental value.  And I am satisfied that you feel appropriate shame and remorse for the harm caused by your actions. 

14.The serious aspects of your offending that I have had regard to in assessing the objective gravity of the offending includes:

a)The fact that you were experienced in the trade you were engaging in during the commission of the offence.

b)The context of receiving stolen items such as these in the course of a gold buying business represents a significant level of dishonesty. 

c)The stolen property was likely to include highly prized personal items of great sentimental value to their owners. 

d)The stolen property was likely to have been stolen during domestic burglaries, or certainly a large proportion of it. 

e)The money exchanged by you for the stolen property was in the tens of thousands. 

f)The actual value of the stolen property was no doubt significantly higher than the discounted gold and jewel value paid by you for the goods. 

g)You were well aware of the second-hand dealers' obligations and the reasons for those regulations.  You by-passed those regulations with no hesitation or compunction.

h)You were clearly aware that the detection of your crime would be extremely difficult, given the fact that the stolen property was unable to be identified once it was melted down. 

15.As in the case of your brother and Mr Tenenboim, there are no circumstances that mitigate the offence.  The fact that the profit from your offending was modest does not mitigate the offending, in my view. 

16.The best that can be said for the circumstances of your offending is that your role within the business was not as prominent or significant as that of your brother or Mr Tenenboim. 

17.The deliberate and considered nature of the offending, given the context, suggests a motive of greed as the only reasonable explanation.  The modest advantage is no doubt explained in part by the chances of detection being negligible. 

18.As with your co-offenders, you no doubt thought that you could do it without getting caught.  It is extremely shameful behaviour, as you have acknowledged. 

Personal Circumstances

19.You were born in Bucaramanga in north-central Columbia on 14 April 1983, growing up at home with your parents and two brothers.

20.You, along with your brothers, attended Catholic education.  Your family was not wealthy, but you received a scholarship due to your academic ability that allowed you to continue at school when the family had difficulty paying fees. 

21.You are close with your family.  You spent a lot of time together with your family growing up and in your early career. 

22.Your father is a doctor.  He ran a small clinic which worked with alternative medicines, apparently.  Your father later ran farms with cattle, fruit, and organic fertiliser. 

23.Your parents were not wealthy.  Times were often hard.

24.After completing school, you attended a public university where you studied medicine.  This was a distinct achievement, given how competitive entry to the medicine course was, which is not unusual.  You were accepted and completed the degree in 2006.  You then studied a Diploma in Alternative Medicine, with the goal of being able to work with your parents in their clinic.  You completed that diploma in 2008. 

25.Since 2006, you worked part-time with your father in the clinic and also
part-time as a local private practitioner, the private practice serviced families in the small township you had grown up in.  You were working six days, and approximately 55 hours a week. 

26.You invested savings into the family farms.  These investments were not successful. 

27.In 2009, you travelled to Australia with your parents to attend your brother Alejandro's wedding.  This was the first time you had visited Australia, and you were impressed with the lifestyle. 

28.Upon returning to Columbia, you decided to save up and move to Australia.  And I accept that your aim was to learn English and transfer your qualification to become a doctor and settle in this country. 

29.You continued working as a doctor in Columbia, as well as helping your father in his organic fertiliser business until you had saved enough to move to Australia.  You arrived on a student visa.  Central to you being able to qualify as a medical practitioner in this country was the requirement that you successfully pass an English examination, and this was, it would seem, the most significant hurdle for you. 

30.You commenced English studies, but your savings ran out and you had to obtain employment to support yourself.  You started working as a waiter and, despite being able to earn more in other occupations, you chose working as a waiter because it would help you improve your English whilst also earning income. 

31.You were struggling to support yourself, and I was told that it was around this time that your brother, Alejandro, started the company, buying and selling gold, and you were offered a job with a salary.  You commenced that in around 2012.  Your salary was around $60,000 per year. 

32.I was told your role was project manager and you would have been involved in the administration of the business.  It was a back of house role essentially, but you also dealt with customers, as the charge reveals. 

33.The business became successful.  You became busy,and I was told that this interfered with your English studies.  You studied a management course whilst working for the company, which you completed.  That enabled you to apply for a skilled worker visa, and your brother's business sponsored you to remain in Australia on a permanent basis. 

34.I was told that you were involved in setting up the pawn broking business and you concentrated your efforts into growing that aspect.  Your goal was to grow the business and be rewarded with equity when it sold or made bigger profits, and you hoped that this would supplement what would be a low income when you started out as a medical practitioner. 

35.Throughout this time, you were living in modest accommodation, and the point was made on your behalf that the media, after your arrest, painted you in a far different light from the reality of your situation.  I will come back to that matter. 

36.The consequences of your offending, of course, were the immediate loss of employment and income, loss of ability to pursue like employment, although you did end up working with Mr Tenenboim in relation to diamond sales subsequent to being charged. 

37.The point was made on your behalf that your offending related to a relatively small quantum and the benefit obtained by you or the business was low.  However, it was of course accepted that the impact on the owners of the stolen goods was far greater than the benefit obtained. 

38.As I have already observed, this aspect of your offending is not one which reduces the gravity of the crime, in my view. 

39.There is no doubt that the media attention in your case also resulted in, what I will refer to as, online consequences and social media consequences, such that you became isolated due to the anger and hostility directed towards you on social media platforms.  It was said on your behalf that the media releases and social media posts painted your brother as living an expensive and lavish lifestyle - expensive cars, first class flights and parties. 

40.It is difficult to know the exact dynamics between you and your brother, but I accept that the point is simply that the reality of your situation was far removed from the way it was painted in the media by association with your brother. 

41.The consequences of that media portrayal has impacted upon you in a negative way and has had the further consequence of you being vilified on social media, further isolating you during a period of delay, which I will come back to. 

42.A related issue is your suspended medical career.  It was submitted to me that there is a strong prospect that you will lose the opportunity to pursue that career and that this should be considered a significant mitigating factor.  In particular, the point was made that your circumstances are distinguished from an offender who loses their career due to criminal offending where the career itself was used to commit the offending. 

43.The point was made that your offending was remote from your career in medicine.  This submission needs to be placed in context, because it appears to me, based on the available evidence, that your motivation and interest in pursuing your medical career must have fluctuated somewhat over the six or so years you worked in Sell Your Gold, up until your arrest. 

44.I accept that the three-year period since your arrest has presented a drag on any remaining intention or ambition you have had.  I do accept what has been written about you by those who know you, including former student colleagues. 

45.It is one thing to assert that your ability to pursue a career in medicine is in jeopardy, but it is another to have that supported by these testimonials, and I do accept that, on a level, you have always intended to pursue qualification in this country as long as that remained open to you. 

46.I will refer to a couple of those testimonials.  There is the reference from
Andre Martinez, registered medical practitioner, who attended the same medical school as you.  He noted that the process for you to be qualified in this country was difficult for you due to limitations with your English language skills. 

47.In his view, you still genuinely have the plan that you always had, that you would improve your English and pursue a registration with the Australian Medical Board to be allowed to practise medicine in Australia. 

48.Your younger brother's former partner, Ms Finlay, has also written on your behalf, attesting to your character but also noting that you had always had the ambition to transfer your medical qualifications into work as a doctor in Australia.  You have put these ambitions on hold since being charged, and you have been worried whether you can ever work as a doctor again as a result of the charges.

49.The reference on behalf of Iris Arnold also supports generally the proposition that I accept, somewhat qualified, that you have maintained, throughout your presence in this country, a desire to be qualified and registered as a medical practitioner.  It would seem to be a remote possibility, but still a possibility.  It is a matter I have had regard to.  I accept that medical qualification in this country has remained a goal of yours and there may yet be a glimmer of hope in that regard.  But, of course, the prospect of it eventuating may already be lost to you, and that would be yet another consequence of your offending.

50.In your case, as I accepted in the cases of your brother and Mr Tenenboim, the mitigatory effect of your plea of guilty is significant.  I accept the propositions that were put on your behalf by Mr Holdenson QC in relation to offers that were put prior to the contested committal hearing or at the time of the contested committal hearing, that there were discussions had prior to the committal hearing, and that there is every reason to consider your plea of guilty as an early plea of guilty, as an early indication of a willingness to plead, even before the opportunity to test the evidence at committal. 

51.In your case, the sentencing discount available, by virtue of the plea of guilty, goes well beyond what I have referred to as the 'significant utilitarian value' of the plea of guilty in relation to your co-offenders.

52.I also accept that it represents true remorse for your offending and the impact upon the victims of a crime of this nature, but also displays insight into the wrongfulness of your conduct and appreciation for the wrongfulness of how you acted. I consider that these matters are particularly significant in your case based on the impression made upon me during your plea from the materials on your behalf but also the step you took in reading out the letter that was tendered on your behalf. 

53.It follows from what I have just said that I accept genuine, significant remorse in your case. As I have stated, it not only comes through in the submissions of your counsel but also in your conduct post-offence and, more particularly, the impressive testimonial material that was tendered on your behalf. 

54.In combination with your educational background and your work history, your ability, your remorse and contrition also gives me strong confidence as to your prospects for rehabilitation.  The motivation of perhaps one day pursuing a medical career also gives me confidence in relation to your prospects of rehabilitation.  I do accept that in your case the consequences and constellation of factors that have arisen due to your offending have provided specific deterrence and that you have excellent prospects of rehabilitation. 

55.In that context, delay is also a significant factor in your case.  As I pointed out, in relation to your co-offenders, the three year delay with you having the very significant nature of the offence hanging over your head for that entirety in circumstances where it has now, of course, resolved to a much more refined basis is an appropriate matter in mitigation. 

56.In your case, you have been remorseful throughout that period and you have demonstrated rehabilitation throughout that period. 

57.Parity, of course, is an important consideration in a case such as this, or disparity where the circumstances are different.  It is particularly important to have considered parity carefully in your case, particularly as I have jailed your brother for four months in combination with a Community Corrections Order. 

58.I consider that your moral culpability is at a level slightly below your brother, despite the greater frequency and value of your crime. 

59.Perhaps more importantly, I have accepted you have very strong prospects of rehabilitation.  As I have stated, due not only to your background and education and the motivation to return to a medical career, but also due to the genuine contrition and appreciation of the wickedness of your crime that I have found you to possess.  And as I have noted, this is a factor which seeps into many of the other factors I have found in your favour, such as delay and the plea of guilty.

60.I consider that in your case mercy can extend to saving you from perhaps the final barrier in the already fleeting prospect of you resuming a medical career. 

61.I am quite sure you will not offend again.  I have decided that in your case that leniency and mercy can extend to you avoiding a gaol term while still imposing a sentence which adequately punishes you for your crime.  It denounces your crime and serves the principles of specific and general deterrence. 

62.I sentence you as follows, Mr Julio Mendieta Blanco.  Can you stand, please.

63.For the crime of receiving, you are sentenced to a Community Corrections Order of two and a half years duration.  You are to perform 250 hours of unpaid community work.  That Community Corrections Order is imposed with conviction. 

64.Were it not for your plea of guilty, pursuant to s.6AAA, I indicate that were it not for your plea of guilty, I would have a sentenced you to a term of imprisonment of 20 months with a non-parole period of 10 months. 

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61.HIS HONOUR:  Do you consent to the order?  All right.  That will now be prepared and I will sign it, and you will be asked to sign it. 

62.MR HOLDENSON:  As Your Honour pleases. 

63.HIS HONOUR:  All right.  Thank you.  Anything else, Ms Ferrari?

64.MS FERRARI:  No, Your Honour. 

65.HIS HONOUR:  And, Mr Glynn, sorry, I should say as well?  You are here, even though you are not present?

66.MR GLYNN:  May I please Your Honour. 

67.HIS HONOUR:  Mr Holdenson, nothing else?  All right.  Thank you, everyone.  Thanks for your attendance.  We will adjourn the court. 

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