Director of Public Prosecutions v Lapatis

[2023] VCC 1618

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 22-00008

DIRECTOR OF PUBLIC PROSECUTIONS

v

APOSTOLOS LAPATIS

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JUDGE:	HIS HONOUR JUDGE LAURITSEN
WHERE HELD:	Melbourne
DATE OF HEARING:	21 July 2023
DATE OF SENTENCE:	7 September 2023
CASE MAY BE CITED AS:	DPP v Lapatis
MEDIUM NEUTRAL CITATION:	[2023] VCC 1618

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:                    Four charges of obtaining property by deception – victims known to the offender – fictitious story told to victims about legal proceedings to obtain money – over two and a half million dollars obtained – admissions made in record of interview – relevant criminal history of similar offending – plea of guilty – diagnosis of major depressive disorder and generalised anxiety disorder – positive prospects of rehabilitation – not a breach of trust – high moral culpability – totality

Legislation Cited:           Sentencing Act 1991

Cases Cited:Watkins v R [2023] VSCA 203; DPP v Waij [2021] VCC 1350 and Kenyeres v R [2023] VSCA 25

Sentence:  Total effective sentence four years and nine months’ imprisonment. Non-parole period of three years and two months’ imprisonment.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	Office of Public Prosecutions
For the Accused	Mr P. Kounnas (Plea) Mr C. Sloan (Sentence)	McNally & Gleeson Lawyers

HIS HONOUR:

Introduction

1I propose to sentence you to a total effective sentence of four years and nine months' imprisonment.  I will set a non-parole period of three years and two months' imprisonment and I will declare the 48 days of your presentence detention as time served under these sentences.  That figure of 48 days excludes today.

2You pleaded guilty to four charges of obtaining property by deception.  The maximum penalty for this offence is 10 years' imprisonment.

3The circumstances of your offending are set out in the prosecution opening.

Circumstances

4The four charges involve five victims directly.

Charge 1

5The victims for Charge 1 are Robin and Roslyn Nagorcka.  They were the owners and managers of a motel.  A longstanding resident at their motel was David Stakic, your friend and co-accused.  You visited Mr Stakic and his wife at the motel and got to know the Nagorckas.

6Mr Stakic and you told them that he, Mr Stakic, was a property developer whose assets were stolen through the use of identity theft.  To regain his assets, there was a proceeding in the High Court.  Information about this proceeding was suppressed and could not be discussed.  This proceeding required certain payments including daily court fees.  In truth, there was no such theft or proceeding.  The story was fictitious.

7Between 23 December 2013 and 12 September 2016, the Nagorckas deposited monies into your bank account.  They also made many other payments to bank accounts controlled by you and Mr Stakic.  By late 2015, Mr and Mrs Nagorcka had exhausted their savings and asked their family members and friends to assist, which they did. Personally, Mr and Mrs Nagorcka contributed over $1,200,000.

8The prosecution opening explains the circumstances of the amounts other persons contributed.  These persons are Terence and Robyn Nagorcka; Dale Nagorcka; Raymond Baker; Gwenda Littlewood; Bryan Nagorcka; Lynette Harman; James Lenehan; Glen Baker; and Narelle Cassidy.  Between 1 December 2013 and 2 June 2017, you and Mr Stakic received a total of $2,949,499 from all of these sources including the contributions of Mr and Mrs Nagorcka.

9A curious thing about this case is Mr and Mrs Nagorcka apparently still believe what you and Mr Stakic told them and were unprepared to assist in the prosecution of this charge against you.  I expect your guilty plea to the charge will satisfy them of your guilt.  

Charge 2  

10Having been friends for some years, in 2014, you asked Daniel Ward for money to fund a property dispute in Greece.  Over six weeks in 2014, Mr Ward gave you $21,725.  He stopped when he ran out of money.  What you told Mr Ward was false.  There was no such property dispute in Greece.

Charge 3

11After an approach from Mr Ward, his friend, Albert McCormack, gave monies to you.  Between 2 July 2015 and 22 December 2015, there were 33 payments totalling $146,050.

Charge 4

12Chandon Chopra was a taxi driver, who regularly drove you.  You persuaded him to give you monies.  You told him you needed the money, or the monies, to release funds from a successful court case in which you were involved.  You even showed him a bank statement, showing a significant balance and telling him they were the monies you could not access.  Mr Chopra provided $16,930 from his savings and what he could borrow.

13On 12 February 2019, you were arrested and interviewed.  You made extensive admissions, summarised in paragraph 17 of the prosecution's opening.

Criminal history

14Between 9 August 1994 and 13 April 2015, you have appeared in a criminal court on six occasions and have been found guilty or convicted of 76 charges.  You have been sentenced to imprisonment on three occasions which included a sentence of imprisonment to be served by way of an intensive correction order.  Later, you were ordered to serve the unexpired portion of that sentence.  Your longest sentence of imprisonment was 14 months.

15The overwhelming majority of your charges have been for dishonesty offences, in particular, the offence of obtaining property by deception.

Victim impact statements

16The effects of your offending upon the victims are varied and, sometimes, unexpected.

17For Terrence Nagorcka, it destroyed his relationship with his brother, Robin.  Your offending has left him sad and unwell.  He has had to work so hard to retain his farm.  Once he enjoyed farming, now it is just hard work for him.  He has retreated from the life of his community.

18For Cheryl Nagorcka, it created tension between her and her husband.  She blames him, that is, her husband, for continuing to give you money, but kept quiet for fear of making him angry.  It prevented them from easing back on working their farm, for their financial position would have been good if it was not for your offending.  It caused her sleepless nights.  During the drought of 2017, she was forced to accept charity in the form of food, much to her anger, frustration and humiliation.

19For Glenn Baker, he lent monies to his sister, Robin.  He thought the loan would be repaid quickly.  When it was not, he became stressed and needed to use medicine.

20For Raymond Baker, it has destroyed his relationship with his sister, Robin.

21For Narelle Cassidy, she feels anger and frustration that her money has gone to someone like you.

22For Lynette Harman, she believed it would be a short‑term loan.  She used her own monies and monies from her joint account with her husband.  Your offending has left her frustrated and angry.

Personal

23You are 53.  You have three sisters.  They lead successful lives.  Your sisters help you and through their efforts you have not needed substances for the last three years.

24Your mother died in 2014 and your father at the end of last year. During your father's illnesses, you lived with him for the last four years of his life.  You enjoyed an excellent upbringing and have good contact with your sisters and their children.

25You enjoyed school and did well.  You left school in Year 11.  You were good at Australian Rules football and had ambitions of playing in the AFL.  Unfortunately, injury prevented the possibility of a career in senior football.

26After school, you obtained work in construction.  This work took you to Cairns where you obtained further qualifications and became a 'confined space specialist' within the gas industry.

27You attribute your use of substances to the loneliness of working underground for up to eight hours at a time, injury and the death of your 'sweetheart' in a car accident.  Using drugs made your attendance at work erratic.  Ultimately, you failed a drug test and lost your job.  Your addiction made finding other employment impossible so that you have not worked for the last 20 years.  You financed your drug addiction through your dishonesty.  You told a psychologist, Dr Dawson, you obtained $2.1 million through your deceptions.  Plainly, you are poor at arithmetic.

28Apart from your 'sweetheart', you have had no relationships of substance.  You have lost your friends as they did not want to associate with a dishonest addict.

29At 18, you started using speed.  After a while, you started with heroin, which continued intermittently for 30 years.  With effort, you stopped using heroin or substances after your father became ill.

30At the time I remanded you into custody, you were living in your father's house.  The house will be sold.  By the time of your release from custody, it will be unavailable for you to live in.

31During the plea hearing, I was told that you are being treated for a hernia, or hernias.  I am told that you have undergone an operation, which apparently has been successful.

Psychologist

32Hannah Dawson is a forensic psychologist.  At the request of your solicitors, she interviewed you on 21 and 26 April 2023[1].  

[1] Report dated 15 May 2023.

33After interviewing you and applying certain psychometric tests, Dr Dawson diagnosed you as suffering from a Major Depressive Disorder and a Generalised Anxiety Disorder.

34Owing to the content of the information you gave and an inability to complete certain psychometric tests, Dr Dawson could not say to what extent your substance abuse contributed to your offending.

35Interestingly, Dr Dawson assesses your general risk of re-offending as moderate and capable of reduction through treatment.

36Finally, Dr Dawson recommended drug and alcohol counselling notwithstanding your abstinence.  She also recommended counselling including treatment based on the Good Lives Model.

Discussion

Purposes

37Section 5(1) of the Sentencing Act 1991 ('the Sentencing Act') sets out the purposes for which sentences may be imposed:

(a)   to punish the offender to the extent and in a manner which is just in all of the circumstances;

(b)   to deter the offender or other persons from committing offences of the same or similar character;

(c)   to establish conditions within which it is considered that the offender's rehabilitation may be facilitated;

(d)   to manifest the denunciation of the type of conduct the offender engaged in; and,

(e)   to protect the community from the offender.

38Each of the purposes of sentencing is relevant to the sentencing of you.  My sentences should act to deter you and others from committing these or similar offences.  I have summarised your criminal history.  The offence of obtaining property by deception figures prominently.  Previous sentences, including terms of imprisonment, have not deterred you from re-offending in this manner.  Clearly, my sentences should act to deter you, to protect the community from you and to denounce your offending. 

39Sentencing courts are always concerned to evaluate the chances of an offender rehabilitating themselves. A rehabilitated person will not re-offend in a relevant sense. Your criminal history does not give confidence. It is extensive and relevant. You have shown an ability to act dishonestly despite the opportunities provided in the past.      My sentences today will be the longest sentence of imprisonment imposed on you. It should act as a strong deterrent to future offending. From a psychological perspective, Dr Dawson assessed your general risk of re‑offending as moderate and being capable of reduction through treatment. Your abstinence from drugs lends weight to that assessment.

40Usually, a plea of guilty is taken as evidence of remorse and I accept it is so in your case. You were interviewed at length by the police and judging from the summary in the prosecution's opening, you were most helpful to them. Some of your comments to Dr Dawson suggest a desire not to re-offend. I consider there is a degree of determination not to re-offend but it does not appear to be due to the realisation of the damage you have done to the victims.  

41Overall, I consider your prospects of rehabilitation are positive.   

Gravity

42Helpfully, the prosecution analysed the four charges. Each is a rolled-up charge. In all, they cover your offending between 1 December 2013 and 10 March 2019, a period of more than five years.

43The prosecution submits the most serious of the offending is encompassed in Charge 1 and involving Mr and Mrs Nagorcka. That is plainly correct. The charge has these features:  

(a)   the period between the first known electronic transfer of funds on 1 December 2013 and the last known electronic transfer payment on 2 June 2017 is about 3 and a half years;  

(b)   there were 276 electronic transfers and an unknown number of payments in cash;

(c)   the amounts involved are large with Robin and Rosalyn Nagorcka defrauded of at least $1,200,000 and Terrence and Cheryl Nagorcka of $1,500,000. With the contributions of others, the total amount is estimated at almost $3 million.

(d)   I have already noted the effects of your offending upon those victims who have made statements.   

(e)   your motive for these deceptions was greed. It is immaterial that you wanted monies to repay persons you had already defrauded.  

(f)    contrary to the prosecution submission, this is not a case of a breach of trust as that concept is usually understood. The victims trusted you but the position you held in relation to them is not one which amounts to a position of trust.

I drew to the attention of the parties the very recent judgment of the Court in Watkins v R[2], which examined this concept. The prosecution has now withdrawn its submission in that regard.  

(g)   the fictional story and the requests for money continued well beyond the limits of the particularised charge dates, evidenced by the intercepted phone calls where you continued to plead for money on the promise of imminent litigation success. This is far from a voluntary cessation of your deceitful conduct.

[2] [2023] VSCA 203.

44With Charge 2, Mr Ward exhausted his savings in passing monies to you.  

45With Charge 3, the offending is not a breach of trust. You used various methods to dishonestly convince your vulnerable and generous victim that the payments were being made for good cause.

46With Charge 4, while a moderate amount of money was obtained from Mr Chopra, his loss represented his savings, as well as money borrowed from his own friend. The fact he was a taxi-driver with moderate means must have been obvious to you.  

47Overall, your offending involved a small number of victims and large sums of money. Your ploy was simple. It was practised over a long period. I would not describe your offending as breaches of trust in the sense that is used in sentencing by persons in positions of trust. Deceptions necessarily involve a victim trusting the offender. The fact they trusted what you told them is part and parcel of the deception. You knowing them beforehand made the deceptions easier to practise. It is not an aggravating factor. It is simply explains how the offending occurred.    

Guilty pleas

48You indicated an intention to plead guilty at a committal hearing. If one views the progress of a charge, starting with its filing in the Magistrates' Court and ending with a trial in this Court, then your indication was given mid-way in that process.  

49By pleading guilty, you have taken responsibility for your offending. In relation to Charge 1, this is important for Mr and Mrs Nagorcka did not believe you were guilty of deceiving them. There is no surer way of convincing them of your guilt than by you pleading guilty to the charge. It puts the issue beyond doubt.

50Your guilty pleas have the practical effect of assisting the criminal justice system in dealing with criminal cases. It removes your proceeding from the list of those requiring a trial. A jury trial is a time consuming and expensive exercise. You have created space for those proceedings which genuinely require a trial and avoided the need for witnesses to give evidence in this Court.

51Even though the problems caused by the virus to the criminal justice system have waned, they have not disappeared. The virus still disrupts the progress of trials in this Court. The Court is still trying to overcome the backlog of cases built up during the severe restrictions of the pandemic. Even now, a guilty plea deserves a greater discount on sentence than would be the case in normal times.

Current sentencing practices

52As to current sentencing practices, it is difficult to discern a practice because the offence of obtaining property by deception occurs in a wide variety of circumstances. The prosecution referred to two sentencing decisions[3].  

[3] DPP v Waij [2021] VCC 1350 and Kenyeres v R [2023] VSCA 25.

53There was some dispute about the level of your moral culpability. I consider it was high. Your asserted reason for offending does not reduce its level.   

Totality

54Where one sentences a person to more than one term of imprisonment, the sentencer should ensure the overall sentence is just and appropriate for the whole of an offender's criminality. This is called the principle of totality. Its proper application results in the sum of the sentences for individual charges do not become disproportionate to the offender's overall offending.  

Sentence

55On Charge 1, I sentence you to 4 years' imprisonment.

56On Charge 2, I sentence you to 12 months' imprisonment.

57On Charge 3, I sentence you to 18 months' imprisonment.

58On Charge 4, I sentence you to 12 months' imprisonment.

59The base sentence is the sentence on Charge 1. Three months of the sentences on Charges 2, 3 and 4 will be served cumulatively upon themselves and the base sentence. The total effective sentence is 4 years and 9 months' imprisonment. I will set a non-parole period of 3 years and 2 months' imprisonment.

60I declare the 48 days of your pre-sentence detention as time served under these sentences. This figure excludes today.  

S 6AAA   

61Absent your guilty pleas, I would have sentenced you to a total effective sentence of 7 years and 6 months' imprisonment.

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