Director of Public Prosecutions v Kalivoda

[2017] VCC 1328

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 17-00771

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROBERT KALIVODA

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	31 August 2017
DATE OF SENTENCE:	13 September 2017
CASE MAY BE CITED AS:	DPP v Kalivoda
MEDIUM NEUTRAL CITATION:	[2017] VCC 1328

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Obtain financial advantage by deception – Significant delay – Drug and gambling addiction

Sentence:Convicted and sentenced to 2 years’ imprisonment wholly suspended for two years

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Henderson (Plea) Ms L. Treasure (Sentence)	Solicitor for Public Prosecution
For the Accused	Mr G. Steward ( Plea) Mr T. Freeman (Sentence)	Tony Hargreaves & Partners

HER HONOUR:

1Robert Kalivoda, you have pleaded guilty to one charge of obtaining a financial advantage by deception, which has a maximum penalty of ten years' imprisonment. 

2The maximum penalty reflects the seriousness with which Parliament regards this offence.

3The offending occurred in January 2010 when you were 34 years old.  You are now 41.

4I was told that the victim of the offending is a company called Southage Pty Ltd (’Southage’), a company which provides short term finance to individuals or corporations.

5In early January 2010, a solicitor, Steve Katsimidakos, was approached by a mortgage broker to obtain a second mortgage in your favour.  The security for the mortgage was to be a residential property in Williamstown and Southage was to be the loan provider.

6The purpose of this second mortgage was to fund the deposit for a home in Kew.  Mr Katsimidakos contacted you.  You told him that the mortgage was to be secured by a property owned by your wife, Lisa Vescovi and that she had requested an evaluation of the Williamstown property.  However, Ms Vescovi was unaware of any of these arrangements.

7Following a satisfactory evaluation of Ms Vescovi's Williamstown property, Mr Katsimidakos prepared loan documents to be delivered to Ms Vescovi for execution.  You telephoned Mr Katsimidakos on 20 January 2010, and asked for the loan documents to be delivered to your Melbourne office so that you could attend upon your solicitor with Ms Vescovi to have the documents executed.  Mr Katsimidakos hand delivered the loan documents to you that morning.

8Later that day, Mr Katsimidakos attended the offices of Southage and met with you.  You were in possession of the loan documents, purportedly signed by Ms Vescovi.

9Under the mistaken belief that the documents were legitimately signed by
Ms Vescovi, Southage issued cheques totalling $285,000, made out to you.  You failed to repay the loan and Southage Pty Ltd instructed
Mr Katsimidakos to commence recovery proceedings in July 2010.

10During 2011, you made sporadic interest payments.

11In August 2011, Ms Vescovi, your estranged wife, became aware of the loans secured over her Williamstown property and told Mr Katsimidakos that she had not signed any loan documents.

12On 20 February 2012, Mr Katsimidakos met with you.  You disclosed that you had forged your former wife's signature on the loan documents.  Southage continued to attempt to recover the money before finally reporting the matter to police in January 2016.

13On 1 April 2016, you were arrested and taken to Cheltenham Police Station where you took part in a record of interview, giving no comment answers to questions asked by police.

14Mr Kalivoda, your offending is serious and warrants a punishment which is just in all of the circumstances, and your conduct must be denounced.

15Further, strong weight must attach to general deterrence in a bid to deter others who are tempted to behave as you have.  Your behaviour was obviously dishonest and you placed your estranged wife in a dreadful situation, which was played out in the Supreme Court, when she was subjected to proceedings in a bid to recover the outstanding money.

16I am at a loss to understand why it was that you approached the victim company which offered loans at exorbitant interest rates, rather than approaching a bank, in circumstances where the house you wished to purchase was to be for your former wife, as I understand it.  I am also at a loss as to why you did not simply obtain her consent for securing a more affordable loan.

17In any event, you chose to behave in a fraudulent manner, obtaining funds that you were then unable to repay, especially in view of the extremely high interest charged.

18I take into account the admissible parts of the victim impact statement in this matter prepared Mr Bill Velos, who is the director of Southage Pty Ltd.  I put to one side the inadmissible paragraphs of the victim impact statement being paragraphs 27, 28, 31 and 32, as well as the last sentence in paragraph 30.

19I must say, I am somewhat bemused as to why this matter was not referred to the police by Mr Velos or Mr Katsimidakos upon learning of your wrongdoing in 2011 or 2012.  Instead, Mr Velos pursued the matter as a civil debt and only reported the matter to police after the Court of Appeal rejected his bid to overturn the decision of His Honour Macaulay J.

20In any event, I factor in the impact upon Mr Velos of your wrongdoing insofar as I can.

21I was told by Mr Steward, who appeared on your behalf, that when you embarked on this behaviour, you were owed approximately $650,000 by the New South Wales Government for work you had invoiced with them, and expected to be able to service this loan without any problem.

22I was told that you fraudulently signed the documents, in circumstances where you were told by the victim that the paperwork had to be attended to that very day.

23Mr Steward acknowledged on your behalf that your behaviour was reckless and presumptuous, attendant with its inherent criminality, but said that you had every intention of servicing the loan.

24Unfortunately, you were not paid what you were owed by the New South Wales Government, receiving a sum of only $60,000 in August 2010.  You had invoiced the New South Wales Government for work you had done through your business consultancy relating to the Metro Project, and there was no provision in the contract you had with them in relation to compensation for breaching it.  I was told that you still do work for the New South Wales Government, but nowadays, the contracts have such provisions built into them which guarantees payment.

25I understand that the victim company has been reimbursed at least to some extent by insurers, as I understand it, acting on behalf of Mr Katsimidakos in relation to the loss suffered by it.

26In relation to the loan itself, I was told by your counsel that the expected duration of the loan was to be three months, with interest payments of 20 per cent per annum.  I was told you received $274,300, with the lender deducting $10,700 for administrative, legal, brokerage and procuration fees.  The interest payments over the three month period would amount to $14,250.  I was told that while payments on the loan were sometimes in arrears, by the time the loan was due for repayment on 20 April 2010, all of the arrears had been brought up to date.

27The loan was extended for three months and you paid interest at the rate of 20 per cent from 20 January 2010 to 20 July 2010-  that is, at the rate of $4,750 per month.

28From 20 August 2010 onwards, you paid penalty rates at the rate of 24 per cent, namely $5,700 per month and you continued to make payments at this rate from 20 April 2010 until 20 October 2011, totalling $105,746.27, at which time the arrears of interest amounted to $10,488.05.

29As I before said, the victim company sued your former wife, you and Steven Katsimidakos in the Supreme Court, but failed in its claim against Ms Vescovi.  You were bankrupt at the time and did not take part in the proceedings.  I was told that the judgment made it clear that Southage had entered into a confidential settlement with Mr Katsimidakos' professional indemnity insurers.

30I was told that at the time of the offending, you were battling a cocaine addiction as well as a gambling addiction.  Since then, you have managed to address both of these problems.  No doubt, such addictions had a substantial impact upon your income as well your ability to behave in a calm and rational manner. However, neither addiction is migratory in respect of your offending, but may help to explain your offending behaviour to some extent.

31A number of character references were tendered on the plea hearing, including one from your former father-in-law.  Each of these references attest to your otherwise good character, as does the fact that you have made significant contributions of your time and money over the years to a number of charities.

32Further, you have no prior convictions, nor do you have any subsequent matters.

33Save for the offending for which I now sentence you, and your past addiction to gambling and cocaine, I find that you are otherwise of good character.

34I take into account your background.  You were born in the Czech Republic in 1975 and came to Australia with your parents when you were 17 years old.  After completing secondary education, you obtained a MBA at the University of New South Wales and a PhD in Economics at Stanford University.

35You are the director of a company known as RK Consultancy Services Pty Ltd and are engaged as a commercial business strategy consultant, with about 90 per cent of your income being derived from your engagement by the New South Wales Government in various of its departments.

36You married Lisa Vescovi in 2006 and have two daughters who are now six and eight years old.  Your marriage ended in 2010 and you now have fortnightly access to your daughters.

37You are now in a stable and devoted relationship with a new partner who was at the plea hearing, and I see is here again today, and she is fully supportive of you.

38I allow for a significant discount in the sentence you would otherwise receive by virtue of your plea of guilty, which was made at the first available opportunity.  In taking this course, you have saved the witnesses the time and trouble of giving evidence, and you have saved the community the time and expense of contested proceedings.

39In view of what is said by a number of your character referees and by
Mr Newton, psychologist, in his report dated 16 August 2017, I accept that you are genuinely remorseful for your offending behaviour.

40I take into account, in a general way, the report of Mr Newton.  Although he detailed various stressors and personality traits, which he believed contributed to your offending, there was no impairment of mental function operating upon you which would reduce your moral culpability.  Mr Steward did not seek to argue otherwise.

41You do not suffer any personality disorder or condition which might give cause for concern in terms of your reoffending.  According to Mr Newton, you are experiencing reactive anxiety in respect of your ongoing legal situation.  However, your symptoms are not sufficiently severe to meet diagnostic criteria for a mental disorder.

42In all the circumstances, I find that you have excellent prospects of rehabilitation and I place negligible weight upon specific deterrence.

43I also factor in the significant delay in this matter which was due to the fact that the victims sought civil relief rather than reporting the matter to the police.  The delay has worked to your advantage though, as you have used the time to demonstrate your positive prospects of rehabilitation.

44Your counsel submitted that a wholly suspended sentence was warranted in your case.  The prosecution submitted that this was appropriate in all of the circumstances.

45Although your offending is serious, and I must give strong weight to general deterrence, the matters in mitigation in your case are such that a wholly suspended sentence is appropriate in all of the circumstances.

46Would you please stand up, Mr Kalivoda?

47You are convicted of the offence on the indictment and you are sentenced to two years' imprisonment, which will be suspended for two years.

48This means that if you commit another offence which is punishable by a period of imprisonment within the next two years, then you will be required to serve the two years' imprisonment unless you can show that there are exceptional circumstances which would make it unjust to do so.  Do you understand that?

49If not for your plea of guilty, I would have sentenced you to an immediate term of four years' imprisonment with a non-parole period of three years.

50Take a seat for a moment please sir.

51Is there anything arising from those sentencing remarks?

52MS TREASURE:  No.

53MR FREEMAN:  No, Your Honour.

54HER HONOUR:  All right.  Yes, thank you.  Then Mr Kalivoda is free to leave the dock and I will now adjourn.

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