Director of Public Prosecutions v Lenehan

[2018] VCC 1407

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00749

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHRISTOPHER LENEHAN

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JUDGE:	HIS HONOUR JUDGE LYON
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	4 September 2018
CASE MAY BE CITED AS:	DPP v Lenehan
MEDIUM NEUTRAL CITATION:	[2018] VCC 1407

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms T. Russell
For the Accused	Mr S. Moodie

HIS HONOUR: 

1Christopher Lenehan, you have pleaded guilty to the following offences with the following maximum penalties:

· one count of obtaining property by deception, contrary to s.81(1) of the Crimes Act.  That carries a maximum penalty of ten years' imprisonment;

· two counts of obtaining financial advantage by deception, pursuant to s.82 of the Crimes Act, which also carries a maximum penalty of imprisonment each of ten years.

2You have admitted your prior convictions.  They are 15 counts of theft committed in 1990 for which you were sentenced to a fully suspended sentence on appeal.  As that matter is relevant to the question of your current offending, I shall return to it later in these sentencing remarks.

3The Crown tendered a summary of prosecution opening on plea as exhibit A.  It is a comprehensive document which sets out the full detail of your offending, and I commend it to anyone who wishes to know the full extent of your conduct.  However, a brief summary of your offending is as follows.

4You have been a businessman and accountant working in agricultural and particularly dairy investments for many years.  You were introduced to the victim of your crimes, Darren Aitken, in 2007.

5Mr Aitken has an acquired brain injury which he sustained as a teenager.  As a result of his injuries, Mr Aitken is of borderline intelligence, is barely literate and can only read a small number of words.  He is in a constant fragile mental state and requires assistance with basic day-to-day living.  It is clear that he has no financial literacy.

6At the time you met Mr Aitken, he owned the house in which he had lived at

[1] A pseudonym has been applied

17 King[1] Street in East Keilor which was purchased with money he inherited from his grandfather.  He lived in that house for some 20 years.  It appears that he was struggling in making the repayments on the mortgage over that property and he sought your assistance to manage his finances and to secure a legacy for his two sons.

7At the time of first meeting with Mr Aitken you had recently been declared bankrupt.  When he came to you for assistance, you figured on a scheme which you hoped would enrich you and, to some extent, Mr Aitken.  Essentially, you apparently decided to invest in a robotic dairy business in Tasmania.

8In order to do so, you re-mortgaged Mr Aitken’s house to use the proceeds for the investment.  In order to get the loan, you persuaded Mr Aitken to transfer the title to his nephew, Daniel Ward.  Mr Ward became the registered proprietor of the property and you were then able to take out a mortgage with the ANZ bank for $340,000.  Once the previous mortgage was discharged, funds of $44,803.56 were paid to First Aussie Pastoral Limited, a company of which you were a director.

9This company was first registered on 24 June 2009 and deregistered on
24 October 2010.  It had a short life indeed.

10It is not at all clear what you did with the $44,000.  There is nothing presented on the plea to confirm this sum was in fact invested in anything.

11It is apparent, however, that despite your earlier assurances to Mr Ward and
Mr Aitken at the time of proposing this loan that you would meet the associated costs and loan repayments on the ANZ mortgage, no payments were made on the mortgage by you.

12This is all preparatory to the background to the offending.

13Charge 1, the count of obtaining property by deception, relates to a sum of $52,000;  Whilst Mr Ward remained the registered proprietor of the King Street, Keilor property you approached a financial consultant about obtaining a loan for Daniel Ward.  Mr Ward had no knowledge of the loan.  The financial consultant in turn contacted a moneylender who would only lend where there was a property sale or refinance; thereby guaranteeing repayment in full of the moneys loaned.

14On 28 July 2010 you signed the loan contract in Ward's name and initialled each page in the name Daniel Ward.  The financial consultant passed the loan contract to the moneylender together with a copy of the contract of sale for the property at 17 King Street with the vendor nominated as Daniel Ward and the purchaser nominated as Darren Aitken.  On the strength of these documents, the moneylender wrote a cheque out for $52,000 to the account nominated by you, Tickety Boo Pty Ltd.

15You paid the financial consultant $20,000 and kept the balance of the money.  Investigators were unable to establish how the money was spent.  When the property was refinanced in January 2011 and the title passed back to Darren Aitken, a cheque for $29,500 was paid to the moneylender.  It is not otherwise explained whether the balance was repaid or why it was not repaid.

16I have just mentioned that the King Street property was refinanced or sold back to Darren Aitken.  Charge 2 is a charge of obtaining financial advantage by deception and it was committed as follows.  In late 2010 Ward approached you and said that unless you started making repayments on the ANZ mortgage, he, Ward, would be forced to sell the house.  As a consequence, you approached an unaccredited finance broker to assist you in the transfer of the property back to Aitken.  You provided him with a myriad of forged documentation stating, amongst other things, that Mr Aitken was and had been employed as an area manager for First Aussie Pastoral since 12 June 2006.  I note again the company was first registered in 2009, and you also passed documentation that stated that Mr Aitken had substantial enumerated assets of about $300,000.  You supplied a PAYG summary showing Mr Aitken earned just under $119,000 per annum; you supplied three forged payslips and an employment letter. 
Mr Aitken, of course, was unemployed at the time and received a Centrelink Newstart benefit.  It goes without saying that he had never worked for you and he did not hold these assets.

17Through a series of brokers, the application for the mortgage was approved by the Victorian Mortgage Management Group.  You prepared further forged bank statements in Mr Aitken’s name to support the application.

18The loan funds of $436,000 presumably first met by the mortgage together with accrued unpaid interest owing on the loan to ANZ.  Thereafter, as I have mentioned, $29,500 was paid to the moneylender in relation to the loan funds the subject of the first charge.  Other amounts went to legal firms and utility services and a fee was paid to the unaccredited finance broker.  The Crown accepts that you did not receive any money from this loan.  However, it had the clear benefit to you of keeping your original fraudulent loan scheme, as described, alive for another little while.  Mr Aitken remained ignorant of all that you had done.  He simply thought that the property had gone back into his name as the registered proprietor.

19Once again, no repayments were ever made on this loan.

20Charge 3 is a charge of obtain financial advantage by deception in the sum of $62,527 and it occurred shortly after charge 2.  In early 2011 you took Mr Aitken to Jefferson Ford South Melbourne and told the finance officer that you wished to purchase a truck for your employee, that is, Darren Aitken.  You supplied this finance officer with a number of false documents, which purported to state that Mr Aitken was employed as a farm manager with Pacific Dairy Holdings Proprietary Limited and was previously employed by First Aussie Pastoral Limited.  In addition, you supplied false income details, two false payslips, false tax returns showing Mr Aitken’s purported income and a letter of successful tender for general cartage of livestock contract.

21You later fraudulently signed the finance contract in the name of Darren Aitken.

22The finance officer at Jefferson Ford forwarded the documentation to Macquarie Leasing.  Macquarie Leasing transferred the documents for the purchase of a lorry truck to a dealer in East Keilor.  The total amount financed was over $91,500.

23The lorry truck was registered in the name of Sustainable Dairy Group at your home address in Corunnun.  Once again no repayment was ever made on the loan.  When the lorry was repossessed a year later, it was sold for $25,000.

24The Victorian Mortgage Management Group took action against Mr Aitken for non-payment of the mortgage.  The house was sold at a mortgagees auction.  Mr Aitken has been living in a converted shed or caravan without electricity in the Northern Territory since.  I shall return to the effect on him later in these remarks.

25On 19 September 2014 police executed a search warrant at your apartment at 31 Spring Street in the city, at your country property at Corunnun, and at a
self-storage unit in Colac.  A number of falsely created documents relating to Mr Aitken were located as well as a great deal of mail addressed to Mr Aitken.

26When you were interviewed by police, you made a "no comment" record of interview.

27Mr Aitken made two victim impact statements.  One was read aloud and the other he did not wish to be read aloud.  Your actions have cost Mr Aitken his home in which he had lived for over 20 years and he lost approximately $300,000.  As he was paid the net balance after the sale of his house, this has reduced his disability support pension by $230 a fortnight.  He must now pay to have his funds managed.  His lawyers acted pro bono, which cost them over $100,000 in fees foregone.  Mr Aitken must apply for approval every time he wishes to use his funds.  More than that, Mr Aitken has had to move away from Melbourne and away from his friends and two sons into, as I have said, what was described as a converted caravan without electricity and in substandard living conditions.  He now lives in Humpty Doo.

28The effect of your actions on Darren Aitken have changed his life forever.  They have been nothing short of cataclysmic.

29Mr Rattray of counsel, who appeared on your behalf, submitted that you had gained little, either directly or indirectly, but that your hope was to improve your financial position following your bankruptcy and also to help Mr Aitken by investing in the business in Tasmania.  When that failed, Mr Rattray stated that you invested $25,000 of the money in another failed business venture in Gippsland, and it was for that purpose that you also got the truck.

30Whether or not your instructions are true (and I simply do not know because there is not a single document put on the plea to support these matters) the following matters are indisputable:

·First, Mr Aitken was, and you knew him to be extremely vulnerable;

·Second, he came to you for advice and assistance;

·Third, he had implicitly placed a great deal of trust in you to help him;

·Fourth, you repeatedly exploited the trust that he placed in you with a plan to first help yourself and then to purportedly to help him;

·Fifth, when it came to the need to transfer the property back to Mr Aitken, you, in effect, ponzied the fraud by refinancing the original loan and covering the fact that you had made no repayments; and

·Finally in this respect, it is beside the point to a large extent as to whether or not you gained directly or indirectly from the money.  The fact is, by your deceptions, you gained the advantage of the use of the money to do as you pleased.  This was to the lasting detriment of Mr Aitken, who does not have the physical or intellectual capacity to start again and make good the loss.

31This analysis leads me to doubt very much your instructions to counsel that you sought to help Mr Aitken.  Your actions involved squandering an enormous amount of his equity for very little gain.  The fact that you promised to, but did not, make any repayments on any of the loans indicates to me that you had none of Mr Aitken’s interests at heart.  In this respect, you were not prepared to shell out a single dollar of your own money to even prop up the fraud that you had commenced and that you were perpetuating.  Finally, in this respect, the fact that you kept borrowing money falsely in his and Mr Ward’s name but using
Mr Aitken’s property as security leads me to the conclusion that your crimes were callous, exploitative, driven by greed to put yourself first, and they were relentless because you just kept going and continued committing offences for a period of some seven months.

32I add to this a side observation.  On your plea, Mr Rattray told me that you sold your house in 2010 - that is the house in Corunnun - to a person in Sydney who now keeps it as an investment.  When I asked Mr Rattray about this, he had no further instructions.  You have constantly maintained an opacity in relation to your own financial situation.  It was not made clear to me whether this was an arm's length transaction or not.  What is apparent, though, is that it provided you with the opportunity to stay in your own home all of these years since, yet you readily denied Mr Aitken the same opportunity.

33It follows, Mr Lenehan, that your crimes are very serious indeed.  Your actions were not directed towards a bank or financial institution, but towards a person who had accumulated and held on to what he had in the most difficult of circumstances.  I conclude that your conduct required forethought and considerable preparation.  It continued with repeated episodes over a seven month period, and for that was, as I have said, extremely callous and determined.

34Your actions deserve public scrutiny and condemnation.  Your moral culpability is very high.  Your actions must be met by general deterrence, denunciation and just punishment.  I look back to the fact that 28 years ago you appealed to this court against partial sentences of imprisonment and suspended sentences of imprisonment on 15 counts of stealing money from your trust account.  In other words, you appealed against sentences of stealing from other people.  You were given a chance by this court when those sentences were fully suspended.  When I look at your offending on this occasion, I consider that a small measure of specific deterrence is required.

35I turn now to your personal circumstances.

36You are 65 years of age and you were born on in December 1952.  You are the third youngest of 16 siblings brought up in a stable home environment on a dairy farm at Corunnun.  You eventually purchased the house from your parents and you have now lived there since.  I presume that you gave up your Spring Street address after this offending.

37You attended local Catholic schools and then completed a Diploma of Business Studies in Accounting at the Gordon Institute in 1973.  Initially you worked for your father’s dairy business and in a variety of accounting roles until you started your own business in 1980, where you worked as a tax accountant, consultant and businessman in the agriculture industry.

38You told the psychologist, Peter Hanley, that you had experienced the highs and lows of the business world and that had owned 15 Rolls-Royce cars.  The lows came in 2007 when you went into bankruptcy.  You have apparently set up an agricultural company which is funded by an overseas investment which you expect to settle sometime in September 2018.  You told Mr Hanley that you considered that this would solve your current financial difficulties.  Your counsel told the court that this would provide you with the means to make restitution to Mr Aitken.

39You were first married in 1974 and you had two daughters with your first wife.  The marriage broke down and your daughters went to live with you.  Now I did express scepticism during the course of the plea, but I have since read the reference provided by your wife, Patricia Lenehan, and I accept when she states that she started living with you and your two daughters in November 1995.

40The references of your wife, of Athol Dennis and Melinda Bons speak of your charitable work and your kindness to others.  These letters, which attest to a different kind and decent side to you, however, can do little to ameliorate the callous and cruel attitude you displayed to Mr Aitken.

41You were assessed by Peter Hanley, psychologist, on 28 May and 6 August 2018.  You told Mr Hanley of the offending that “I don’t think I weighed up the risk… I was desperate to get a project up and running so I could get back on my feet and Darren Aitken was going to help me.  I thought I could kick a few goals like I had in the past.”  You described your decision to forge documents as a "spur of the moment thing.”  You said that you felt sorry for the parties impacted and that you had a plan to provide financial restitution to the affected parties.  Mr Hanley noted that your thought content included self-aggrandising and self-denigrating components but was neither delusional nor manic.  He considers that you exhibit prominent features of narcissistic personality disorder and moderate alcohol use disorder in sustained remission.

42Psychologist, Robert Postlethwaite, has been treating you for a major depressive disorder after your admission as an inpatient at St Vincent’s Hospital Mental Health Unit in March 2017.  You are medicated with Sertraline.  On your plea and in his report, Mr Postlethwaite refers to you having had suicidal thoughts.

43Mr Rattray denied any reliance on the principles in Verdins.  I will have regard to the fact that you will find the prison experience difficult because of your condition and for the fact that this is your first time in custody at age 65.  However, these factors cannot be used to significantly mitigate the sentence that I must impose upon you.

44An issue arose during the course of the hearing as to whether you had expressed any remorse for your offending.  You told Peter Hanley that you are sorry to each of the parties impacted by the offending.  You told
Mr Postlethwaite that you were embarrassed by your behaviour and by your arrogance.  Nevertheless, I find it difficult to detect real remorse.  Your words are not matched by your deeds.  You made a "no comment" interview with police.  The chronology tendered on behalf of the Crown speaks of the many times that you have delayed the hearing in this matter.  Since you were charged on 27 October 2015, the matter has been delayed when you changed lawyers, you needed time for funding, you missed a psychological appointment and you needed time so a report could be prepared, and then you met someone at a social function who advised you to change your plea to not guilty, and so you did, and then finally you changed your plea back again.  The plea date was vacated on 22 August 2016, 25 November 2016, in February 2017, although
I note you were in hospital on that occasion, and again on 28 April 2017.

45Furthermore, you have made no attempt whatsoever at restitution.  Moreover, you have made no attempt to explain your financial position at all.  As I stated earlier, I was told that you propose to make restitution if your latest business venture is successful, and yet I was not provided with a single detail, document or timeline beyond the one line in Peter Hanley's report about this business venture.

46Overall, I can only conclude that your instructions to your counsel remain vague and opaque in just about every detail.

47Mr Rattray submitted that your plea should be mitigated by your plea of guilty, which, although late, has a utilitarian value.  He submitted that you were otherwise a man of good character notwithstanding your prior conviction and that you have good prospects for your rehabilitation.  In this respect he pointed to the fact that you have your home, the support of your wife and you have psychological support.  Mr Rattray referred to Mr Hanley’s conclusion that your depressive symptoms may re-emerge in the custodial setting.  Mr Rattray submitted that I should have regard to the principle of totality as all of the offending arose out of the same narrative.  He pointed to the delay since the date of charge and submitted that ultimately that you should be sentenced to a partially suspended sentence.

48I consider that your plea, although late, does have utilitarian value, and I do consider that you have some reasonable prospects for your rehabilitation.

49Mr Nibbs, on behalf of the Crown, submitted that your history in business and as an accountant gave you some acumen.  You knew and exploited the vulnerabilities of Mr Aitken and you took dishonest steps to realise your own selfish objectives.  Mr Nibbs submitted that there is no evidence to suggest that you ever used your own funds in pursuit of these objectives.  Mr Nibbs submitted that the delay was of your own making and you should get no benefit from it. Ultimately, Mr Nibbs submitted that in, all the circumstances, an immediate period of imprisonment was warranted.

50In the end, I have concluded that your offending is far too serious to warrant a partially suspended sentence.  There was nothing “spur of the moment” about your offending.  Our community will not tolerate the exploitation of the weak and vulnerable.

51I have looked at the decisions of the Court of Appeal from around 2010 and 2011, that is when suspended sentences were still available, and I have also looked at current sentencing practices.  Of course, I am not bound or constrained by previous sentences imposed in relation to such offending.  Rather, I must form an individual assessment of your culpability, taking into account factors in mitigation, and in that respect, I consider your offending to have been egregious in the calculated exploitation of a vulnerable person.

52On Charge 1, the charge of obtaining property by deception, you are convicted and sentenced to a period of imprisonment of 18 months.

53On Charge 2, the charge of obtaining financial advantage by deception, you are convicted and sentenced to three years and one month's imprisonment.

54On Charge 3, the charge of obtaining financial advantage by deception, you are convicted and sentenced to a period of 20 months' imprisonment.

55I make Charge 2, the sentence of three years, the base sentence. 

56I order that nine months of the sentence on Charge 1 be served cumulative to that sentence.  I further order that 11 months of the sentence imposed on Charge 3 be served cumulatively on all other sentences. 

57The total effective sentence is, therefore, four years and nine months. 

58I order that you are to serve a period of two years and 11 months before you are eligible for parole. 

59I reckon the period of seven days pre-sentence detention excluding today as already served.

60The 6AAA declaration is that but for the plea of guilty, I would have sentenced you to a period of seven years with five years to serve.

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