Director of Public Prosecutions v Lewis

[2020] VCC 934

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00125
CR-18-00126
CR-18-00127
CR-18-00881

DIRECTOR OF PUBLIC PROSECUTIONS

v

DEAN LEWIS

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	7 May 2020
DATE OF SENTENCE:	24 June 2020
CASE MAY BE CITED AS:	DPP v Lewis
MEDIUM NEUTRAL CITATION:	[2020] VCC 934

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Multiple charges of obtaining and attempt to obtain a financial advantage by deception; Sophisticated offending involving persistent use of false identities and manipulation of documents over 26 month period; Offender obtained $180,000 and attempted to obtain over $400,000 by deception; Offender suffered from pre-existing psychiatric symptoms leading to methamphetamine abuse; Lengthy period of pre-sentence detention followed by 16 month period on­ bail; Plea of guilty; Delay; Rehabilitation; General deterrence.

Legislation Cited:           Sentencing Act 1991 (Vic).

Sentence:25 months’ imprisonment combined with 18 month Community Correction Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr N. Batten	Office of Public Prosecutions
For the Accused	Dr M. FitzGerald	Doogue + George Defence Lawyers

HIS HONOUR:

1Dean Lewis, you have pleaded guilty to three charges of attempting to obtain a financial advantage by deception, four charges of obtaining a financial advantage by deception, one charge of attempting to obtain property by deception and two charges of possessing a drug of dependence.

2In addition, you pleaded guilty to three summary charges, namely two charges of dealing with property suspected of being the proceeds of crime and one charge of committing an indictable offence whilst on bail.

3These offences were committed between 20 September 2014 and
18 January 2017.  During that time you made a number of online loan applications to finance companies using false names, supported by false financial information and documentation.  Many of the names you used were from real people, whose identity was used without their knowledge or approval.  You would provide such details as phone numbers and email addresses with false supporting referee details for this purpose.

4In some of the early offending, you provided the prospective lender with the account number of your own bank accounts using a false name.  Later, loans were sought and, if approved, paid to a bank account opened in a false name but controlled by you.  Where you were able to access funds, they were not recovered.

5At the plea hearing, Mr Batten, who appeared on behalf of the Victorian Director of Public Prosecutions, tendered and read to the court a prosecution opening dated 6 May 2020.  Dr FitzGerald, who appeared on your behalf, accepted that the opening accurately described the circumstances of your offending and could form the factual basis for sentence. The following summary is based on that opening.

Circumstances of offending

Charge 1 – Attempt to obtain a financial advantage by deception

6Charge 1 comprises four attempts to obtain by deception, loans totalling $35,000.  The dates, name of the finance company, amount, and false name used are particularised in Schedule 2 of the Indictment.

7On 20 September 2014, you made two online loan applications in the name of Dean Haugh for a loan of $500 from the finance company Cashfirst, and $1000 from the finance company MoneyMe.  Dean Haugh was a former name that you had used but was not your current name.  For these loans, you used your own mobile phone number and Commonwealth Bank account details, however, the loans were not approved.

8On 12 November 2014, you applied for an online loan from Direct Money in the sum of $32,000 using the name of Daniel McQuitty; that loan was refused.  On 19 December 2014, you used the same identity to attempt to obtain a loan of $2000 from a finance company known as Loans By Phone; that loan was also refused.

9Earlier in 2014, Daniel McQuitty had been in a relationship with your former partner, Jessica Dyson.  In about June 2014, Ms Dyson photographed Mr McQuitty's drivers licence and gave you a copy.  You used that copy, together with a false Commonwealth Bank statement, false pay slips and rate notice documents to support both applications.

Charge 2 – Obtain a financial advantage by deception

10Charge 2 comprises three instances of obtaining loan finance, totalling $20,525, by deception.  The particulars of the dates, names used and finance companies involved are set out in Schedule 1 of the Indictment. This offending occurred between 1 October 2014 and 9 December 2014.  

11On 1 October 2014, you applied online for a loan of $2025 using the name of Dean Jefferies from a finance company known as Dollars Direct.  In so doing, you used a Victorian driver's licence displaying your own photo, but in the name of Mr Jefferies, and a false bank statement in the same name, showing bank account details for an account held in your name.  The loan was approved, and the funds were transferred to the account held in your name.

12The following day, on 2 October 2014, you used the same identity to apply for an online loan of $15,000 from Cashfirst.  To support the application, you used another false bank statement in Mr Jefferies’ name with your bank account details, a false Medicare card, and a Victorian driver's licence in Mr Jeffries' name, showing your photo, bearing a certification dated 1 October 2014 from a solicitor, Ms Marnie Troeth.  At that time, Ms Troeth was legal counsel at a large charity operating in the Geelong area known as Karingal Inc.  You worked for Karingal, and in June 2014, Ms Troeth certified a copy of your licence for you.  She did not do so on 1 October 2014, and the signature on the certification provided to the finance company was a forgery. The practitioner stamp resembles a stamp that was used by her in June 2014.

13The third instance referable to this charge involved another online application for a loan of $3500 from Max Finance, again in the name Daniel McQuitty.  As in the other applications, the false driver's licence and a false bank account statement was used to support the application, and the loan contract was reported to have been witnessed and stamped by Ms Troeth.  The loan was approved, and the funds were transferred to an account which you controlled.  You later admitted to Jessica Dyson that you had obtained a loan in
Mr McQuitty's name.

Charge 3 – Obtain a financial advantage by deception

14Charge 3 comprises 10 instances of obtaining loan finance totalling $34,242.99 by deception.  The particulars of the transactions are set out in Schedule 3 to the Indictment and they span the period 8 January 2015 to 31 December 2015.

15Eight of these deceptions involved a finance company known as Nimble Australia.  In the first of these deceptions, on 8 January 2015, you used the name Brandon Hughes and supplied a false transaction history for a bank account purportedly held in that name, but in fact held in your own name.  In later applications, you gave the lender payment details of a bank account fraudulently opened in the name of the purported loan applicant.  Funds were paid into those accounts and later withdrawn.

16Evidence such as handwritten entries in notebooks and diaries and other documentation was later found by investigators in your possession, and that evidence linked you with many of these applications.

17In a deception perpetrated on 3 October 2015, on FlexiRent, you obtained $7323.99 for the purchase of Hi-Fi and computer equipment from JB Hi-Fi in Waurn Ponds.

18On 7 December 2015, you obtained by deception $17,958 from Pepper Finance in the name of Joshua Myers, to purchase a second-hand Holden Commodore.  Mr Myers had previously lost his wallet containing his driver's licence and bank cards.  The materials provided in support of that application included a copy of a drivers licence bearing a false certification purportedly made by an accountant, Ashley Killen.

19The car was recovered on 3 January 2016 in Bannockburn.

Charge 4 – Attempt to obtain a financial advantage by deception

20Charge 4 consists of eight attempts to obtain by deception, loan finance totalling $42,500 during the period 7 January 2015 to 23 November 2015.  The particulars relating to those transactions are set out in Schedule 4 to the Indictment.

21Five instances of those eight attempts were committed in a three day period between 7 and 9 January 2015 using the identity Brandan Hughes but providing your own bank account details. In support of the applications, you used genuine identification documents such as Mr Hughes' drivers licence, together with false payslips and the like.

22At the time, Brandon Hughes lived in North East Victoria.  He had no part in the applications and did not know you. 

Charge 5 – Obtain a financial advantage by deception

23Charge 5 relates to the obtaining of a loan of $53,520.56 from St George Finance by deception.  The purpose of the loan was to purchase a new silver 2015 Subaru Liberty sedan from Subaru Geelong.  Again, you used the identity of Brandon Hughes with a combination of both genuine and false documents in his name.

24At around this time, you told your former partner, Ms Dyson, that you had done something dodgy to obtain the car and had later ditched it.  The car was recovered by police in a damaged state in Belmont on 23 February 2015.

Charge 6 – Obtain a financial advantage by deception

25Charge 6 consists of 27 instances of obtaining loan finance by deception, the total amount of which was $81,566.40 between 1 January 2016 and
22 August 2016.  The particulars of those transactions appear in Schedule 5 of the Indictment.

26In most instances, the amount obtained was less than $3000.  In 23 of the 27 instances, the finance company deceived was Nimble Australia.  The loans obtained from Nimble ranged in size from $248 to $5400.

27One of the larger transactions involved obtaining approval for a loan in the false name of Andrew Mateus from the Commonwealth Bank in the amount of $30,150.  Another involved using the name Stuart Lyles to obtain a loan of $13,301 from Latitude Personal Finance on 23 June 2016.

Charge 7 – Attempt to obtain a financial advantage by deception

28Charge 7 consists of 21 attempts to obtain loan finance by deception in the total sum of $354,469.95 during the period 21 January 2016 to 8 December 2016.  The particulars of those transactions are set out in Schedule 6 to the Indictment.

29In seven instances, the named loan applicant was Thomas Jaworski.  An array of other names were used in the other applications.  In many instances, the identification documents used in these applications were found in your possession.  Two names in particular, Cliff Anderson and Christopher Diffey, were real people and their addresses, as recorded by VicRoads, were changed without their knowledge to addresses linked to you.

30Some examples of this offending include a transaction of 9 May 2016, where you used the name David Mallett to seek a loan of $35,000 from HSBC Bank, purportedly for home renovations.  The loan was initially approved, however, the fraud was discovered before the funds were released.

31Similarly, you used the name John Furness on two occasions in late September 2016 in an attempt to obtain two loans of $35,000 each.  The applications were supported by false documents including a bank statement and driver's licence.  In late 2015, an iPad containing Mr Furness' scanned ID and personal information was stolen from his business.  Documents in Mr Furness' name were found in your possession on 26 October 2016, and his name and personal information appeared in a notebook found in your possession on 18 January 2017.

Charge 8 – Attempt to obtain property by deception

32Charge 8 relates to a single instance of offending, where you applied in the name of John Furness on 30 September 2016 to Thorn Limited for a credit card with a credit limit of $25,000.  The application was again supported by false identity and bank documents.  The name, Andrew Mateus, was given as a reference.  The application was rejected.

Charges 9 & 10 – Possess a drug of dependence

33In relation to Charges 9, which is possess methylamphetamine, and Charge 10, possess MDMA, police found and seized approximately 0.1 of a gram of methamphetamine and 0.04 of a gram of MDMA (ecstasy).  The possession of those items also gave rise to a related summary offence of committing an indictable offence whilst on bail.

Summary offences

34You have also pleaded guilty to dealing with property suspected of being the proceeds of crime which is the subject of three summary offences. 

35Summary charge 5 related to a Victorian driver's licence, marine licence and Medicare card in the name of Tony Zdraveski.  Those items had been stolen on 23 September 2016.

36Summary charge 7 concerned a black Samsung mobile phone connected in the name of Simon Bellante.  Mr Bellante's driver's licence was stolen on 28 November 2016 and the phone had been connected without his knowledge.

37Summary charge 9 related to the possession of a driver's licence and Medicare card in the name of David Tsapkounis.

Investigation

38The police investigation into this offending commenced in February 2015 after Ashley Killen reported the fraudulent use of his accountant certification stamp on loan documentation. Between February 2015 and January 2017, investigators searched your car and home on four separate occasions and on each occasion seized incriminating material. You were interviewed on four separate occasions about various aspects of these allegations, and on each occasion denied that you had committed the offences, indeed you continued to commit offences of this kind after you had been charged with some of these matters.

39You were finally charged and remanded in custody in relation to the last of these charges on 18 January 2017.

Victim impact statements

40Turning to the specific impact this offending has had, Daniel McQuitty provided a victim impact statement which described the enormous frustration he has experienced since having his identity stolen. Up until that time, he had an excellent credit rating which enabled him to continue to expand his business and live comfortably.  However, over the past five years he has had to make countless phone calls and send numerous emails attempting to persuade credit agencies and institutions that he should not be given an adverse credit rating.  In essence, your offending has caused him a great deal of turmoil and heartache, as he describes it, and I must take that into account in the formulation of the sentence to be imposed upon you.

Personal history

41Turning to your personal history, you were born on 29 December 1974 and are now 45 years of age.  During the timeframe of the offending, you were between the ages of 39 and 42.  You have had one previous court appearance which I will return to shortly.

42You grew up in Belmont and Highton in Geelong with your parents, two brothers and a sister.  You described your early childhood as being happy, but that deteriorated at the time of your parents' separation when you were about 11 years of age.  In the lead up to the separation, there had been a good deal of arguing, abuse and some family violence.  You and your siblings remained living with your mother, and you had very little to do with your father after the separation.

43Whilst you did not initially experience any academic or social difficulties at school, it seems you developed some behavioural problems in the wake of your father leaving the family home.  You attended Belmont High School; however, you left in the middle of Year 11.

44When you left school you did some casual work for some time, and later you were permitted to enrol at Deakin University in a mechanical engineering and electronics degree, which you completed over a three-year period.  During your studies, you worked as a survey assistant, and once you had completed your degree you started working at Australian Engineering Solutions. You worked there for 11 years, starting with mechanical design and ultimately becoming a general manager.

45Towards the end of your time at that company, you developed some mental health problems which affected your working and personal life.  You had met your wife at the age of 16 and married her in the year 2000.  There were three daughters of that relationship, now in their late-teens.  You told your assessing and treating psychologists that around 2012 you began exhibiting symptoms of a bipolar disorder.  You apparently suffered a major depressive episode.  You were heavily medicated, and this affected your capacity to work and interact normally.  Over time, your relationship with your wife deteriorated and you were eventually divorced.  Your wife went to live in Belmont with the children and you were able to have frequent contact with them.

46You discontinued the use of psychiatric medication in 2013 and began abusing methamphetamine in 2014, after forming a relationship with a woman whose brother supplied drugs to you.  You told your assessing psychologist,
Ms Pamela Matthews, that were using about 1.5 grams per fortnight.

47It is that abuse which provides the setting within which you committed these offences.  I was told that you were given to behave in an intense manner, spending excessively, walking tens of kilometres each day, and all the while needing to fund your drug abuse.

48Insofar as criminal history is concerned, on 19 March 1993, you came before the Magistrates' Court at Geelong in relation to 18 charges of obtaining property by deception.  You were convicted of those charges and placed on a Community Based Order (‘CBO’) for a period of two years, with a condition that you perform 500 hours of unpaid community work.  You committed those offences when you were 18 or 19 years of age.  You completed the CBO and did not reoffend for nearly 20 years.  Whilst the offending is clearly relevant for the purposes of these proceedings, I must also bear in mind that it is a very long time since you committed those offences.

49When you were initially taken into custody, it seems you were assessed by the forensic psychologist, Ms Pamela Matthews, for the purposes of making a bail application.  I have already referred to and taken into account Ms Matthews' report of 15 February 2017.

50Significantly, you were not granted bail until 21 February 2019.  You have therefore already spent 763 days in custody in relation to this offending.  You have been on bail, pending the outcome of these proceedings, over the last 16 months.  

51During your time at large, you have been attending on a treating psychologist Dr Mari Molloy as a result of a referral from your general practitioner. In her report of 23 March 2020, Dr Molloy confirms that you have seen her on 11 occasions.  In her opinion, you suffer from post-traumatic stress disorder as a result of your experiences in custody.  In addition, you have been treated for clinically significant depression and anxiety, and your care is overseen by your general practitioner, Professor Gerard Gill.  Your treatment has involved the use of cognitive behavioural therapy, however, your progress has been limited because of the uncertainty surrounding the outcome of these proceedings.  

52Dr Molloy concludes her report with the following opinion:

Mr Lewis presents as a man who has struggled with feelings of isolation, inadequacy and incompetency throughout his life.  His early childhood experiences left him feeling alone, sad and anxious with a poor sense of self.  The absence of his father during his adolescent years saw a lack of a healthy role model to guide him through his development into adulthood.  This saw him vulnerable to feelings of inadequacy and a fear of rejection.  Mr Lewis developed a personality style that employs a behavioural pattern of masking his insecurities by striving to be more than his abilities can always match.  Mr Lewis presents himself as a leader, but his internal insecurities prevent this from being so, leaving him open to be taken advantage of by others.  His drive to feel he is always on par with others sees him vulnerable to being impulsive and making poor decisions in his need to be accepted and seen as capable and competent.  His personality style would also be a risk factor in a prison environment where his fear would also see an amplification of this style of interaction.

Defence submissions

53In his submissions on your behalf, Dr FitzGerald acknowledged the seriousness of this kind of offending, particularly as to its capacity to undermine the integrity of the consumer finance market.  The total funds advanced to you was in the order of $180,000 and, in addition, you attempted to obtain finance for over $400,000.  These were significant amounts which attract the need for emphasis on sentencing purposes such as general deterrence.  Aside from the overall quantum involved, there was a persistent use of multiple false identities and manipulation of documents over a protracted period of time (approximately 26 months). The offending was such that it required significant resources to investigate and it is aggravated by the fact that some of the offences were committed whilst you were on bail.

54It followed, Dr FitzGerald conceded, that this offending must warrant the imposition of a term of imprisonment.  However, there were some significant features of your circumstances to be relied upon in mitigation.

55First, you have pleaded guilty. That plea was formally entered on
14 February 2020, following lengthy negotiations between the parties, which resulted in the withdrawal of a considerable number of the original police charges.  Although the plea could not be characterised as an early plea of guilty, it was nonetheless timely.  It had very significant utilitarian value in avoiding multiple trials, and the approach taken by defence in negotiating the resolution of the matter demonstrated your willingness to facilitate the course of justice. It also demonstrated your acceptance of responsibility for this offending.

56Second, it was submitted that you had reasonable prospects for rehabilitation.  You have only one prior court appearance when you were very young.  You have a good education and work history.  This offending occurred during the period of methylamphetamine abuse which arose after the breakdown of your mental health and your marriage.  Since your release on bail, you have sought to put that behind you.

57Third, there has been a significant delay in the resolution of these matters.  That is understandable, having regard to the number and complexity of the charges and the volume of evidence.  However, that delay has had a punitive effect on you.

58Fourth, you are now receiving appropriate mental health treatment.  Your previous remand did demonstrably adversely affect your mental health, and it is therefore reasonable to infer that it is likely your condition will again deteriorate if you are returned to prison.  That likelihood is reinforced by the sentencing considerations relevant to the COVID-19 pandemic.

59It was submitted that given that you have spent more than two years in jail, and 16 months on bail, that you should now be sentenced to a Community Correction Order (‘CCO’) in combination with a term of imprisonment.

Prosecution submissions

60On behalf of the Crown, Mr Batten contended that the concessions made by
Dr FitzGerald as to the seriousness the offending were both fair and appropriate.  This was egregious offending, where the identities of real people had been stolen, no doubt causing them substantial inconvenience and anguish as the victim impact statement from Mr McQuitty demonstrates.  It was sophisticated and very much requires the emphasis of general deterrence and, to some extent, specific deterrence.  A substantial term of imprisonment is warranted, however, Mr Batten accepted, as I understand it, that the time you had already served, being 25 months' imprisonment, was itself substantial. 

Consideration

61In my view, each of the parties to this proceeding has adopted a practical and, if I may say, sensible approach to its resolution.  The seriousness of the offending and the fact that it warrants a sizeable term of imprisonment is not in issue.  The fact is, however, you have already served a 25 month term of imprisonment for this offending, and since being released on bail you have attempted to manage your mental health problems and related drug abuse.  There is clear evidence that if you were to return to custody in these circumstances, your mental health would be adversely affected, and, in all likelihood, so would the interests of the community in the longer term.

62Accordingly, I have been persuaded that it is appropriate to sentence you to a CCO in combination with the term of imprisonment already served.  At my request, you were assessed for your suitability for such an order and the report provided was very positive.

63I have also determined that, given that the charges on the Indictment and most of the related summary offences are of the same or similar character, I will impose an aggregate term of imprisonment.

Sentence

64On the three charges of attempting to obtain a financial advantage by deception, the four charges of obtaining a financial advantage by deception, the one charge of attempting to obtain property by deception, the two charges of possession of a drug dependence and the three related summary offences of dealing in property suspected of being the proceeds of crime, you will be convicted and sentenced to an aggregate term of imprisonment of 25 months.

65Pursuant to s 11(2A) of the Sentencing Act 1991 (‘the Act), I will not fix a non-parole period.  I will, however, make an order in accordance with s 44 of the act and place you on a CCO in addition to imposing the sentence of imprisonment. 

66The length of the CCO is 18 months.  Its special conditions will be that you be under the supervision of the Office of Corrections throughout that period, and that you further be required to undertake assessment and treatment in respect of drug abuse and mental health. 

67On the related summary offence of committing an indictable offence whilst on bail, you will be convicted and discharged.

68I will declare pursuant to s 18 of the Act that you have already served 763 days by way of pre-sentence detention, and I will cause that declaration to be noted in the records of the court.

69I will make a further declaration under s 6AAA of the Act that but for your plea of guilty, you would have been sentenced to a term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years.

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