Director of Public Prosecutions v Kepkey

[2020] VCC 1156

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 20-00494

DIRECTOR OF PUBLIC PROSECUTIONS

v

KYLE KEPKEY

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JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	13 July 2020
DATE OF SENTENCE:	31 July 2020
CASE MAY BE CITED AS:	DPP v Kepkey
MEDIUM NEUTRAL CITATION:	[2020] VCC 1156

REASONS FOR SENTENCE
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Subject:  Obtaining property by deception, obtaining a financial advantage by deception. 
Sentence:  5 years imprisonment with a non parole period of 3 years.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Malobabic
For the Accused	Mr A. Sim

HIS HONOUR:

1Kyle Kepkey, you have pleaded guilty to three charges of obtaining property by deception, and three charges of obtaining a financial advantage by deception.  The maximum penalty for each of these charges is imprisonment for 10 years.

2The circumstances of your offending are summarised in an agreed summary in writing, dated 2 July 2020.  That document was read in open court by the prosecutor, Ms Malobabic.  In those circumstances, it is not necessary that I again set out in full all of the facts surrounding your offending, and I do so only in an abbreviated way.  These sentencing remarks should, however, be read in conjunction with what is set out in the agreed summary.

3Each of the charges here are rolled up charges.  That is to say, each charge includes a number of agreed occasions between agreed dates, upon which you committed a crime.  In total, you carried out 279 unauthorised transactions related to your father's Westpac account over a period of about two years.

4Between 13 February 2017 and 24 January 2019, on 179 occasions, you transferred money from a Westpac account in the name of your father into an account in your name at the Bank of Melbourne.  None of these transactions were authorised by your father.  You acted dishonestly, and in total you received $958,100 into your Bank of Melbourne account.  This is the offending embraced by Charges 2, 4 and 6, each is a rolled up charge of obtaining financial advantage (a transfer of money from one account to another) by deception.

5Between 13 February 2017 and 22 February 2019, you also completed 100 unauthorised cardless withdrawals totalling $43,230 from your father's Westpac account.  Again, you acted dishonestly in each of these transactions.  This is the offending embraced in each of the rolled up Charges 1, 3 and 5.  Each is a rolled up charge of obtaining property (cash) by deception.

6As a result of your crimes, a total sum of $1,001,330.00 was stolen by you from your father.

7Your father was the victim of your fraud.  You told police when interviewed that you initially stole a letter to your father from Westpac Bank, which contained a Westpac statement that related to your father's account.  You used the information contained in that letter to steal your father's identity.  Having done so, you effectively took control of his Westpac account and took money from it or diverted it to your own use as you pleased.

8Although the charges relate to your offending over about a two-year period, between February 2017 and February 2019, you in fact laid the foundations that enabled your offending to occur much earlier.

9On 2 November 2014, you registered internet banking on your father's online banking profile.  A ProTect SMS code was added to the profile and linked to your father's mobile number.

10Two days later, on 4 November 2014, you registered third parties, 'add payee', on your father's online banking profile.  This permitted online payments from your father's account to your account at the Bank of Melbourne.  None of this was authorised by your father, who knew nothing about what you were doing.

11In late 2016, your father sold his home in New South Wales.  The sale price was more than $1.2m.

12Before the deposit was received, on 13 October 2016, you called Westpac and pretended to be your father.  You reset a new telephone password.

13About three weeks later, $60,762.22, a deposit for the sale of the house, was received into your father's account.

14Four days later, on 13 November 2016 you logged into your father's account and increased the online transactions limit from $750 to $5000 per transaction.  All of your dealings with Westpac that related to dealings and manipulation of your father's Westpac account were unknown to your father and unauthorised by him.  In all of your dealings with your father's Westpac account you acted fraudulently.

15On 21 February 2017, your father received the balance of the monies due on the sale of his home of $1,181,792.02 into his Westpac account.  Immediately before that sum was deposited, the account had a credit balance of $21,044.71.  It was your father's intention to live off the money received from the sale of his home.  He maintained a frugal lifestyle.  He only had the one bank account at Westpac.  He did not use internet banking, and he tried to keep his finances simple.  He reckoned that if he kept his expenditure to about $70,000 a year, then his money would last for some time.  He was protective of his account information, not requesting a bank balance lest someone would find out how much money he had.

16Your father moved to Melbourne in early 2017, and soon after moved to live with you in a rental property in Maidstone.

17It is necessary to look at you offending in more detail.

18Between 13 February 2017 and 27 December 2017 you completed 56 unauthorised cardless cash withdrawals totalling $25,480 from your father's Westpac account.  The amounts range from between $100 to $500.  The offending commenced after the receipt of the deposit and just before receipt of the final proceeds from the sale of your father's home.  The amount of each transaction and the frequency of each transaction is set out in item 1 to the schedule to the indictment (Charge 1 obtain property by deception).

19Around the same time, as well as taking cash from your father's account, you commenced transferring money from his account to your Bank of Melbourne account.

20Between 13 February 2017 and 28 December 2017, you fraudulently transferred $199,100 into your account at the Bank of Melbourne.  There were 83 unauthorised fraudulent transfers ranging in value from $500 to $4000.  The amounts and the frequency of these transactions is set out in item 2 of the schedule to the indictment.  During this period, on 30 September 2017, you dishonestly logged into your father's account online and increased the online transfer limit from $5000 t0 $10,000 (Charge 2 obtaining financial advantage by deception).

21Between January 2018 and 23 December 2018, you completed 39 unauthorised cardless withdrawals totalling $15,350 from your father's Westpac account.  The frequency and amounts of these transactions are set out in item 3 of the schedule to the indictment (Charge 3 obtaining property by deception).

22At the same time, between January 2018 and 28 December 2018, you transferred $713,000 from your father's Westpac account to your account at the Bank of Melbourne.  The amounts and the frequency of these transactions are set out in item 4 to the schedule in the indictment.  There were 90 unauthorised transfers.  It is noteworthy that from June 2018, all transfers were of $10,000 (Charge 4 obtaining financial advantage by deception)

23Between 2 January 2019 and 22 February 2019, you completed six unauthorised cardless withdrawals totalling $2400 from your father's Westpac account.  The amounts ranged from between $150 and $500.  On two occasions, an unknown person was observed on CCTV footage making the unauthorised withdrawals.  You told police that on those occasions you gave the SMS code for those two cardless withdrawals to your then drug dealer, thereby permitting that person to complete the transaction and take the cash from the bank.  The amounts and the frequency of these transactions are set out in item 5 to the schedule in the indictment (Charge 5 obtaining property by deception).

24Finally, between 2 January 2019 and 24 January 2019, you transferred $46,000 from your father's Westpac account to your account at the Bank of Melbourne by five unauthorised fraudulent transfers.  The amounts and the frequency of these transactions are set out in item 6 to the schedule in the indictment (Charge 6 obtaining financial advantage by deception).

25Your offending ceased only when there was no money left in your father's Westpac account.

26In March 2019, you were shopping with your father.  He went to the ATM to withdraw some money, only to be told that his balance was $19.34.  You immediately told your father that you had been responsible for the withdrawing of money from his account.  You told him that you had had a drug problem for a number of years.

27Your father approached Westpac and was told to report the matter to the police.  Your father made a statement to the police on 5 April 2019.  He told the police of the dire financial situation that your conduct had placed him in.  Your father was unaware of your drug problem.  During all this period you had continued to work, and you were a high functioning drug user.

28Remarkably, and notwithstanding the fact your offending has left him penniless and dependent on Centrelink payments, your father remains supportive of you and was in court to support you on your plea.

29It is of course relevant to set out what you did with the money.

30As is set out at paragraph 30 and following of the summary, investigators were able to account for $977,996.32 of the total of $1,001,330.00 stolen.  When interviewed, you told police a number of things:

cash withdrawals were either made by you or you would send the access code to other people, commonly drug dealers, to withdraw the money;

you transferred $18,854 directly into an account of your then partner when she needed something or was going shopping.  You told police, 'It was just me more being the big man of things providing money that wasn't mine';

when you and your girlfriend broke up you paid her $10,000;

you transferred $12,000 to your best friend for his wedding;

you paid rent for a friend;

you spent approximately $26,000 modifying a Honda Civic car purchased for you by your father;

you spent $2695 on Deliveroo;

you spent $15,000 on Uber rides;

$12,800 was paid to Bunnings, buying tools;

$22,000 went to online gaming;

$22,000 went to Amazon, $7000 to Coles, $2000 was spent in 7-Eleven stores and $4700 in 7-Eleven cash withdrawals;

$286,523 was spent on random purchases using PayPal;

$204,760 was cash withdrawn from ATMs.

31You told police that your offending was all just out of selfishness, 'It was all just putting myself first.  Living the Rockefeller lifestyle on someone else's dime'.  Your father paid for you to travel to Japan but did not know that on that trip you spent $14,000 of his money.

32You accurately described your conduct to the police.  Your conduct was driven by selfishness and a desire to lead the high life which you could not afford.  Your spending was, in my view, reckless and extravagant, designed to portray yourself as someone with money.

33Your offending is obviously very serious.  It is not a breach of trust in the legal sense.  It is opportunistic identity fraud, where the victim is your own father. 

34Your offending is a shocking breach of trust in the moral sense.  For a son to do this to his own father in the way that you did and for as long as you did, stopping only when there was no money left, in my view, is reprehensible conduct. 

35Identity fraud is becoming more and more a prevalent offence.  People have to closely guard their dealings with banks when online dealings have become the normal course of business.  A person's identity for relevant purposes can easily be intercepted and stolen from a letterbox; just as you intercepted a bank statement.  Your conduct shows that people even have to guard their banking details from their own family, lest children succumb to the temptation to steal from their parents.

36In cases like this, general deterrence and denunciation loom large as sentencing principles that must be applied in arriving at an appropriate sentence.  Your counsel did not suggest otherwise.

37Of course, in arriving at an appropriate sentence, I must also take into account a number of mitigating factors and your prospects for rehabilitation, which I think are good.

38On 23 April 2019, you were interviewed by the police and you made full admissions and you were released pending further investigations.

39You were not charged until 5 December 2019 when there was a filing hearing.  There was a first committal mention on 27 February of this year, which was adjourned to enable you to get legal aid funding.  At the second committal mention a month later, the matter resolved into a plea and you pleaded guilty to the charges, and I heard your plea on 13 July 2020, when you were remanded in custody.

40On your plea, your counsel, Mr Sim, submitted that there had been delay in bringing this matter before the court and that you have had this matter weighing upon you for an inordinate length of time.  I do not accept that submission.  Whilst you have fully cooperated with the police investigation, because of the period of time over which you offended and the number of transactions involved, it was appropriate that your offending be fully and thoroughly investigated, and that was done.  A delay of about nine months between the police being alerted to your offending and you being charged, in a fraud such as this should not, in my judgment, be labelled as inordinate delay.  And nor has there been any inordinate delay in the charges being dealt with by the court.

41You have pleaded guilty to the offences and you did so at the earliest available opportunity, and you cooperated fully with the police.  For the purposes of sentencing, I treat you as having pleaded guilty at the earliest opportunity.  For that, you are entitled to receive, and will receive, a reduction in sentence and this will be set out in the sentence that I will shortly pass.  By your pleas of guilty, you have saved the time and costs of a trial.  Importantly, by pleading guilty you have saved your father from the unseemly experience of having to be called as a witness and give evidence against you in a criminal trial.  Further, by pleading guilty, you have accepted responsibility for your criminal conduct, and you have advanced the administration of justice.  I regard your pleas of guilty as evidencing genuine remorse.  In arriving at an overall sentence, I have taken all of this into account, as I must.

42I turn to deal with some matters personal to you and relating to your background circumstances.

43Your counsel, Mr Sim, prepared and filed a helpful outline of his submissions in writing, dated 8 July 2020, which I marked as Exhibit 1.  Mr Sim also relied upon a psychological report from psychologist, Kerrie DanSwan, dated 11 June 2020, which I marked as Exhibit 2.  The psychologist met with you via video-link for the purposes of the report on 2 June 2020.  Further, Mr Sim relied upon references from Mathilda Foster and Claire Stubbs and from your father.  He also relied upon a letter from you addressed to me, as the sentencing judge.  I marked each of these letters in a bundle as Exhibit 3.

44You were born on 6 July 1990 and you are now 30 years of age.  You have no prior convictions and there are no further charges pending.  I am conscious of the fact that this is your first time in custody.  I am also very conscious of the fact that you enter prison at a time when the operations of a prison have been restricted and curtailed because of the pandemic presently existing in this State.  This means that your movement within the prison and your rights to exercise and have visitors will be restricted for so long as the pandemic lasts, making your time in prison more burdensome than it ought be.

45You were raised as the only child to your parents.  Your mother died when you were aged three.  She hailed from the Philippines.  Your parents lived in the Philippines, and after the death of your mother your father returned to Australia, where he raised you with the assistance of his parents.  You were raised as an only child.  You were told at about the age of 15 that your mother had given birth to 15 other half siblings.  Your father, who remarried for some years before divorcing, had no other children.  You told the psychologist that you felt out of place growing up because of your ethnicity.

46You completed Year 12 at high school in the western suburbs of Sydney, and thereafter you pursued work as a labourer.  After that you worked selling insurance.  You did well at this and were promoted a number of times.  Subsequently, you worked in various roles in IT, and in recent years you have worked on a regular casual basis as a data analyst.  Apart from the period of about 12 months after your offending was discovered, you have had a continuous work history since leaving school.

47After the offending, you have continue to suffer from depression, having confessed to your father that you had stolen all of his money.

48You have had two significant relationships with women.  The first lasted approximately seven years, during which, I was told, that you were a victim of significant physical and emotional abuse from your partner. 

49Ms DanSwan set out what you told her of this relationship and how your previous partner had behaved at paragraph 36 of her report.  You told her that after this relationship broke down you relapsed back into drug use (methamphetamine) after a four year abstinence. 

50Ms DanSwan opined that after the breakup of this relationship, when your partner left you, you did not handle this well, and having already had depressive symptoms, your mental health deteriorated significantly.  She said that your ongoing depressive symptoms fuelled your drug use and continued offending behaviour.  On your self-report, she opined you continued daily drug use so that you did not have to experience low moods, guilt and suicidal ideation.

51Ms DanSwan was of the opinion that at the time of your offending, low moods and drug use, you continued to offend over a period of time avoiding thinking about the possible consequences of your actions, including the impact of your offending upon your father.  She said that you displayed high levels of guilt and remorse during your assessment interview with her.

52It was not contended by Mr Sim that any Verdins principles need to be invoked in the sentencing of you.  Mr Sim did submit, and I accept, that for the purposes of sentencing I must, in a general sense, take into account the fact that you suffer from a major depressive disorder, along with stimulant use disorder.  In passing sentence, I have taken all of this into account.  Further, your pleas of guilty and your cooperation with the police, and from what you said to
Ms DanSwan, I accept you are remorseful for your offending.

53Ms DanSwan found that you did not have any personality disorders, traits or intellectual impairments, nor any medical or neurological problems.  She diagnosed you with major depressive disorder with anxious distress and a history of stimulant use disorder.

54Ms DanSwan thought you were a low risk of reoffending in this way.  This is based upon the fact you have no prior convictions and you have ceased substance abuse and you have the ongoing support of your father and you have a good work record.  I accept that you are a low risk of reoffending, although you will need ongoing counselling when released from prison to ensure you do not relapse into drug use.

55After your father sold his home in Sydney, in early 2017 he came to live with you in Melbourne.  The both of you rented a townhouse in Maidstone.

56In mid-2018, you commenced a new relationship with Ms Foster.  You continued to live with your father, but you would spend time with her.

57In May 2019, the townhouse was damaged by fire due to an electrical fault, and two days later both you and your father moved to Ms Foster's one-bedroom apartment, where your father would sleep on the couch.

58On 23 June of this year, the relationship between yourself and Ms Foster ended, and you and your father were asked to vacate the apartment.  Ms Foster remained supportive of you and she has provided a reference.  In that document, she speaks of the fact that you are a selfless person towards people you care for.  She speaks highly of you as a co-worker and as someone who has expressed remorse to her.

59A reference from Claire Stubbs also says that you are a kind, caring and selfless person and that this offending is out of character.  She also says you are remorseful, which I accept.

60I was told, and accept, that you commenced using drugs, acid, ecstasy and crystal meth at age 16.  By age 18, you were using methamphetamine on a daily basis, and that continued for about two and a half years, at which point you ceased and remained abstinent for about four years.  You achieve this acting on your own, without help.  You recommenced using methylamphetamine in 2015 after the breakup of your first relationship, and from that time until this offending, it was revealed your drug use escalated significantly.  You were using 1 gram of methylamphetamine a day.  I was told, and accept, over this period, your mental health deteriorated, but you did not seek help.  You have not used illicit drugs since you disclosed your offending to your father.

61In his letter, your father makes the point that you are a loving son and you are a different person, absent drugs.  He points out that his loss continues whilst you are in prison.  Despite all that you have done, you enjoy his ongoing full support and love.  He makes the point that you are all that he has left.  Mr Sim submitted that because you will be imprisoned, I should take into account the exceptional financial hardship that this will bring to bear upon your father.  I do not accept that submission.  In my judgement, your father's continued financial predicament has been brought about by your offending, not because of the sentence that I will shortly pass.  I am of the view that there are no exceptional circumstances here which should operate to reduce any sentence.

62In your letter to the court, you have expressed guilt and remorse for what you have done, and I accept, as I said earlier, that you are remorseful for what you have done and the financial loss that you have caused your father.

63Mr Sim submitted that I should impose a term of imprisonment in combination with the making of a community corrections order with therapeutic conditions.  During the plea, I expressed the view that your offending was too serious for such a disposition.  The amount of money involved, the period of time over which you offended and the way that you did, stealing your father's identity, in my view, means that the sentence imposed must properly reflect general deterrence and appropriate denunciation.  A combination sentence would not properly achieve these purposes of sentencing.

64Alternatively, Mr Sim submitted that if I impose a term of imprisonment and fix a non-parole period, then he asked that I provide for you to be on parole for a longer period than would normally be the case.  Because you are still relatively young, and this is your first time in prison, and because of your good work record, and you are remorseful, and because I think your prospects of rehabilitation are good, I have accepted this submission.  The sentence I will impose provides that you will serve 60 per cent of the total effective sentence imposed before being eligible for release on parole.

65On Charge 1, obtaining property by deception, you are convicted and sentenced to a term of imprisonment of one year.

66On Charge 2, obtaining financial advantage by deception, you are convicted and sentenced to a term of imprisonment of two years.

67On Charge 3, obtaining property by deception, you are convicted and sentenced to a term of imprisonment of six months.

68On Charge 4, obtaining financial advantage by deception, you are convicted and sentenced to a term of imprisonment of three years.

69On Charge 5, obtaining property by deception, you are convicted and sentenced to a term of imprisonment of three months.

70On Charge 6, obtaining financial advantage by deception, you are convicted and sentenced to a term of imprisonment of one year.

71I direct that one year of the sentence imposed on Charge 2, and six months of each of the sentences imposed on Charges 1 and 6 cumulate upon the sentence imposed on Charge 4, making a total effective sentence of five years' imprisonment.

72I direct you serve a minimum term of three years' imprisonment before being eligible for release on parole.

73I declare there has been 18 days pre-sentence detention already served relating to the sentences passed this day and direct that 18 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

74For the purposes of s.6AAA of the Sentencing Act 1991, I state that had it not been for your pleas of guilty to the charges, I would have imposed a total effective sentence of seven and a half years, and I would have fixed a minimum term of five years before you would have been eligible for parole. Are there any questions arising out of that, Mr Sim? Mr Sim, can you hear me?

75MR SIM:  No, Your Honour, thank you.

76HIS HONOUR:  Do you have any questions?  Ms Malobabic?

77MS MALOBABIC:  No, Your Honour.

78HIS HONOUR:  Thank you.  I will have the transmission terminated. 

79MS MALOBABIC:  As Your Honour pleases. 

80MR SIM:  As Your Honour pleases.

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