Director of Public Prosecutions v Loh
[2012] VCC 1011
•17 July 2012
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-12-00110
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| STEVEN LOH |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 2 July 2012 | |
DATE OF SENTENCE: | 17 July 2012 | |
CASE MAY BE CITED AS: | DPP v Loh | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1011 | |
REASONS FOR SENTENCE
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Catchwords: Sentence – guilty plea – obtaining by deception - $1.17 million – asserted belief of accused inconsistent with guilty pleas and agreed summary of facts – fact finding for sentencing – 65 year old prisoner – previous good character – now destitute and estranged from family – delay – witness in pending trial – burden of imprisonment
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Ms A. Bhai | OPP |
| For the Accused | Mr R. Edney | Robert Stary Lawyers |
HER HONOUR:
1 Steven Loh, you have pleaded guilty to eight charges of obtaining property by deception, one of obtaining a financial advantage by deception, and one of perjury.
2
The offences occurred in this context. In 2003 you were employed as
a salesman for Benchmark Capital Ltd. It was a company involved in project marketing of large residential developments to investors, and it operated from offices in Queens Road in Melbourne. Some time in 2003 Benchmark held a seminar to market properties to potential investors. Luis Alfaro attending the seminar and was introduced to you. The two of you discussed possible investments and exchanged telephone numbers. A short time later the two of you met at a place near Benchmark's offices in Queens Road. You told
Mr Alfaro that you needed $120,000 for three months. You said that he would receive a return of $1,500 per month. That's a significant return on investment. You told him that the money was needed to settle some land, and it was just
a three month loan, with all the capital being returned at the end.
3 Mr Alfaro was given to believe that the money sought was part of a property investment through Benchmark. He discussed it with his brother Ricardo, and Ricardo Alfaro agreed to invest the $120,000 you had asked for.
4 On 16 September 2003 the Alfaro brothers Luis and Ricardo went to Benchmark's offices where they met you and Robin Little the managing director. You gave them a document headed re loan of $120,000 with Forest Resort, Unit 220, and a prospectus showing the projects that Benchmark Capital was marketing, and other information about Benchmark. Ricardo Alfaro handed over a cheque for $120,000 payable to Benchmark, which was deposited into Benchmark's bank account. Two days later on 18 September 2003 you withdrew that full amount of $120,000 from Benchmark Capital. That money has not been seen since, and has been unable to be traced.
5
A month later on 14 October 2003, after further discussions between you and the Alfaros, in relation to investing, Ricardo Alfaro made out a further cheque for $50,000 and gave it to his brother Luis to give to you. You told them that there would be very high returns on their investment. Again you banked that cheque for $50,000 into Benchmark's account.
The following day on 15 October Ricardo Alfaro transferred a further amount, $17,000 into Benchmark's bank account. This was pursuant to the same agreement or understanding, and the same representations that had been made.
6 On 16 October, the day after the transfer of funds, you withdrew 67,000, that is the $50,00 that had been paid by cheque, and the $17,000 that had been transferred by direct debit, from Benchmark's accounts. That money has not been seen since. It has not been returned to the Alfaros, and has been unable to be traced.
7 Those three transactions give rise to Charges 1, 2 and 3, two of obtaining property, and one of obtaining a financial advantage by deception.
8 Two months later on 16 December 2003 Mr Luis Alfaro gave you a further amount in cash of $170,00 for investment purposes. You had told Louis Alfaro that you needed the money to bring money back into Australia from China, and that if Luis Alfaro provided that money he would make a couple of million in return, for that investment of $170,000. That $170,000 has not been seen since you received it. There is no evidence as to what happened to it after that. No receipt was provided to Luis Alfaro for that payment.
9 That gives rise to Charge 4.
10 A month after that on 16 January 2004, Luis Alfaro gave you another $185,000 in cash. Again there was no receipt provided, and again there is no trace of what happened to the money after it went into your possession. The money was provided by Luis Alfaro after you had told him you needed more money to free up the money from China. Those funds were raised in part by the refinance of Luis Alfaro's house, and in part raised from friends of his.
11 That gives rise to Charge 5.
12 Two months after that, on 11 March 2004 Luis Alfaro provided you with another $415,000 in cash. $200,000 of that was raised by his brother Ricardo, and $215, 000 was raised by his mother Gloria, and another brother Carlos Alfaro. Those two cash amounts again were not the subject of receipts, and have been unable to be traced. There is no sign of what happened to them after they were handed to you. You told Luis Alfaro in March of 2004 that it would be only a matter of weeks before all of the money that the Alfaros had provided would be returned. However none of it has been returned.
13 That gives rise to Charges 6 and 7.
14 Charge 8 relates to the provision of an amount of $120,000 by some friends of the Alfaros, Gonzalo Montti, and Cecilia Herrera. At some time in May 2004, so two months after the payment of the $415,000 by the Alfaros to you, that amount of $120,000 was paid to you. Mr Montti and Ms Herrera had decided to invest, or to pay you the money as a result of what they had been told by Luis and Ricardo Alfaro about the promises that had been made to them by you of the returns.
15 Again this transaction was held out by you to be a Benchmark transaction. You signed a document, which on the face of it evidenced that $120,000 was being invested with Benchmark, and that was provided to the Monttis, however again there is no sign of what happened to that money after it was provided by the Monttis through the Alfaros to you, and none of it has been returned. That gives rise to Charge 8.
16 The final charge of obtaining property by deception is also one that occurred in May 2004. You told Luis Alfaro that more money was needed to ensure that the investment remained on foot, and he provided you with another $50,000 in cash. This money he borrowed from a friend.
17 Again there is no trace that the money after it was handed to you and none of it has been returned to Mr Alfaro.
18 There the deceptions rested. But in August 2006 you signed a statutory declaration in which you declared that $375,000 had been received from Marilou Alfaro for an investment in Benchmark. Marilou Alfaro is the wife of Ricardo Alfaro, and in fact, a total amount of $387,000 had been obtained from Ricardo and Marilou Alfaro by the time that declaration was signed.
19 You gave that false statutory declaration to Marilou Alfaro, purporting to be a receipt for the monies that she and her husband, Ricardo, had provided to you for the investments.
20 You were interviewed by police on 29 October 2010 and gave in a lengthy interview the following answers:
· You said that you had worked at Benchmark Capital for about four to five years, and had been working there at the time that you obtained the monies from the Alfaros and their friends.
· You said that you worked as a sales executive and that you were also treated as the Asian manager, looking after the Asian side of the business.
· You said you were a real estate agent and that you had met the Alfaros who were people who wanted to buy properties.
· You said you had met one of them at an investment seminar and that the two of you had become friends.
· You said you asked Luis Alfaro to help you get some money back that you had lost. You said that you told Luis Alfaro that if your investments from overseas came back that you would give him a loan, you said that you signed a loan agreement with him to that effect.
· You denied ever telling the Alfaros that they were making investments in Benchmark. You said that the money that you were going to repay the Alfaros was not going to come from Benchmark. You said that you would repay the Alfaros once you had received your commission from Benchmark.
· When asked about the cheque for $120,000, that is the first payment, you said that you gave it to Rob Little, and it was banked in the Benchmark account. You agreed that you later withdrew both the $120,000 and the $150,000 cheques that you had received made out to Benchmark, from Benchmark's account, in cash.
·
You agreed you received a significant cash amount from Luis Alfaro.
You thought about $170,000, although you could not recall the exact figure.
· You referred to a man by the name of Jimmy Kock, and you said you had given him about $1,000,000 over two or three years, and that you had not received any money back from him.
21 In total, you obtained an amount of just over one million, $1,127,000 from the Alfaros and their friend, Mr Montti, as a result of the representations made by you.
22 The maximum penalty for perjury is 15 years imprisonment. The maximum term of imprisonment for obtaining by deception is 10 years imprisonment, unless the offending constitutes a continuing criminal enterprise offence, and the continuing criminal enterprise offender provisions contained in s.6G to 6J of the Sentencing Act are enlivened.
23 All but one of the obtaining by deception offences concerned property worth $50,000 or more. That is Charges 1, 2, 4, 5, 6, 7, 8 and 9. So all are, by definition, continuing criminal enterprise offences.
24 Conviction for a third continuing criminal enterprise offence here, Charge 4, makes you a continuing criminal enterprise offender, and liable to double the penalty, that is 20 years, for all subsequent continuing criminal enterprise offences, namely Charges 4 to 9. That is correct, is it not, Ms Teague?
25 MS TEAGUE: It was in Grossi, but Rosetti overturned Grossi, and it meant that - - -
26 HER HONOUR: It was the 20 years for - - -
27 MS TEAGUE: It includes one and - the first two - it qualifies for all of them, not just from then on.
28 HER HONOUR: All right. Thank you. Conviction for a third continuing criminal enterprise offence here, Charge 4, makes you a continuing criminal enterprise offender, and liable to double the penalty, that is 20 years, for all continuing criminal enterprise offences, namely Charges 1, 2, 4, 5, 6, 7, 8 and 9.
29 I must make a declaration under s 6J of the Sentencing Act that you are sentenced in respect of those charges for a continuing criminal enterprise offence. I make the declaration accordingly.
Personal circumstances
30
You are 65, born in Malaysia. You arrived in Australia with your wife and
three children in 1988. You had had a successful business career in Malaysia, first in the family printing business, which under your guidance expanded from a workforce of 10 to 60, and then ultimately managing
a packaging business with 500 employees. Your came to Australia for better education and opportunities for your children.
31
They have flourished. They are now in their 30’s. Your oldest son is
a doctor and a medical director of a large hospital network. Your second,
a physiotherapist, and the youngest, your only daughter, a lawyer.
32
Your first 10 years here were spent in similar businesses to those you had managed in Malaysia, initially as a high level employee, and then as
a proprietor of your own businesses. In the late 1990s you obtained a real estate licence and moved into marketing properties off the plan. That was how you came to be employed by Benchmark. Meanwhile your wife had set up and had run her own business, a hairdressing and beauty salon in the city.
33 Your daughter, Elsie, who gave evidence on the plea, described the family life here as good. She said her parents worked hard, that their marriage was good and that you and your wife had supported each other when you came to Australia. She said that you were always there for your children.
34 You had a Christian upbringing in Malaysia, and you and your family forged close links with other members of the Australia for Christ Fellowship, the church you joined on arrival in Australia. You have never had any troubles with drinking, gambling or violence.
35 This, then, would appear to be a personal, family and migrant success story.
36 And yet now, it has all fallen apart. At 65, instead of looking forward with your wife to a comfortable retirement together, to sharing in your children's lives, getting vicarious pleasure from their progress in the careers that you helped set them on course to pursue, watching them form their own families, and spending time with your grandchildren, you are divorced from your wife, prohibited from contacting her, and alienated from her and your children.
37
You are destitute, without the assets and savings you and your wife had worked so hard to amass. Your sole income is the age pension for which you have just qualified, and you were living, before your plea was heard, in
a share house, with strangers, in an area far removed, socially as well as geographically, from the suburb that you had lived in with your wife and children. You no longer have contact with your old friends and the church community, which had been such a feature in your life.
38 How did this come about?
39 There is no evidence of using funds for lavish lifestyle, or to fund a gambling or drug or alcohol habit. There is no evidence that you had debts you were unable to meet from your earnings. There is no evidence that you have tried to conceal monies so you can access them later.
40 Mr Edney submitted that the only explanation for the offending was that you, as well as the Alvaros and their friends, were the victim of a scam. That you were lured by the prospect of enormous returns for moneys invested, and that, despite the warnings of your family you continued to believe that each next payment would unlock vast riches.
41 In support of that, he relied on a number of matters: In particular, your account in interview, the letters written by your daughter and son about your behaviour over many years, and the evidence supportive of that given by your daughter, Elsie, on the plea.
42 In your interview you maintained that you genuinely believed that you were investing in a legitimate venture which would yield millions of dollars in return for the investment of tens of thousands of dollars. You said you continued to believe that, even when instead of payment of the promised funds, you received further and increasingly insistent demands for additional funds to secure the release of the promised monies from China. You said you were pursued and threatened with death and the death of family members by gangsters or the Chinese mafia if you did not comply with their demands for more money, and that the Jimmy Kock you said you paid the money to was not an invention, but a real person, a powerful and dangerous man.
43 There are insuperable difficulties in finding your interview account is truthful. Parts of it are demonstrated by evidence independent of you, and the Alvaros, to be patently untrue. More significantly, your account in interview is inconsistent with the agreed facts, and incompatible with your pleas of guilty.
44 Your daughter’s evidence, and the letters that she and your son wrote, and which were tendered, are consistent with your interview account, in showing that well before you obtained the funds from the Alvaros, you were applying your own funds (or those jointly owned with your wife) and actively soliciting funds from wherever you could, to pay what you said were the taxes which would secure the payment of millions of dollars from China to you. This evidence also reveals you brushed off all suggestions it was a scam, and maintained your assertion that you were investing, and soliciting funds to invest in a legitimate scheme, which would return you and other investors, millions of dollars in return for a comparatively small outlay.
45
Your daughter gave evidence of the many, and futile efforts she, your sons, and your wife, had made to convince you it was a scam, and of your refusal to accept that, or even to consider it to be a possibility. She gave evidence of the attempts by the family to have the police investigate what they believed to be a scam, but which you continued to maintain was genuine, so thwarting any police investigation. She also gave evidence of your conduct in soliciting money from family, friends and members of your church, of taking funds from your joint holdings with your wife, all the while adamantly maintaining in the face of the family’s concerted opposition, that the investment was genuine. She gave evidence that, as time progressed, you made and received phone calls which she believed were with Chinese men involved in the scheme.
She said these conversations were in Cantonese, a language she understands “a bit of”. At times, she said, the caller's tone of voice was aggressive.
46
It is important to put this in time context. Ms Loh said that it was in
2000 or 2001 that the family discovered that you were using joint assets without your wife’s knowledge to invest in this scheme, and confronted you.
It was then you first told them of the Chinese investment scheme. Your efforts to use joint funds, and to solicit money from family members and church associates continued up until the time she left home in 2004. It would appear that it was about the same time that you left the family home, having failed to comply with an ultimatum from your wife and children not to put in any money of your own, or any joint family funds into it, and not to solicit any more from family, friends and church members.
47 It is clear, from what you told the police when interviewed, and from your daughter's evidence that you were using money, yours and other people's, to put into what you described as the Chinese investment scheme, well before you began soliciting funds from the Alvaros.
48 As early as 2001, you were taking money from your own, or rather your assets jointly owned with your wife, and soliciting money from your pastors and other members of the church, and from family members in Malaysia.
49 Your wife and children had been telling you that they believed it was a scam and had sought police assistance well before you began taking money from the Alvaros.
50 It is not clear exactly when your marriage broke up, but it is clear that it was at least under serious strain as a result of your continued attempts to take joint assets for your own purposes before you began to take money from the Alvaros.
51 It was three years after your family first became aware you were using yours and your wife's funds and soliciting funds from others, telling them it was for the Chinese investment, that the offences concerning the Alvaros commenced.
52
Even if your purpose in soliciting money from the Alvaros was to make further payments to secure the release of funds in China, and even if you were
a victim of a scam, it is clear that you deceived them into believing they were making short term, high yield loans to Benchmark, a company whose prospectus held itself out to be in the business of property development, and for a specific purpose, namely settlement of the sale of land as part of the forest resort project.
53 Even if you were the victim of a scam, it was a different scam, one of your own devising which led the Alvaros to part with their money.
54
At interview, you asserted you never told the Alvaros they were making
a Benchmark investment. At the plea, Mr Edney put specifically (and relied on it as a mitigating factor) that you denied holding out the investments made by the Alvaros were with Benchmark.
55 This is unsustainable. The agreed summary reveals the following:
56 You were working for Benchmark when you met Luis Alvaro, who identified himself as a potential investor, at a Benchmark marketing event. Benchmark was promoting itself as project marketing large residential developments to investors.
57 You followed up with a meeting near Benchmark’s offices, where you promised him a fixed return of $1500 per month on a three month loan of $120,000.
58 You told him the purpose of the loan was to settle a land purchase.
59 You then met him at Benchmark’s office, and gave him a Benchmark prospectus, showing Benchmark’s projects and loan documentation, including a document headed "Loan of $120,000 with Forest resort 220."
60 Ricardo Alvaro paid by cheque made out to Benchmark which you deposited into Benchmark’s account before withdrawing.
61 The next two payments made by the Alvaros a month later were also by cheque made out to Benchmark and deposited into Benchmark’s account before being withdrawn by you.
62 The payment made by the Monttis was also supported by a fraudulent receipt purporting to be from Benchmark.
63 All of this clearly indicates that you were holding out this was an investment with Benchmark, for Benchmark purposes, and consistent with its projected purposes. Yet as is equally clear, you never intended the funds to be used for Benchmark’s projects or purposes. Wherever the money went after you withdrew it, or received it, it was not used for the stated purposes. So far as the first three payments were concerned, there was no return of $1500 per month on the $120,000 invested, and no return of capital at the end of the three months.
64 Even if you were a victim of a scam, that does not mitigate the seriousness of this offence or reduce your culpability, or reduce the weight otherwise to be given to denunciation, deterrence and just punishment.
65 So far as the later obtaining by deception charges and the perjury charge are concerned, Mr Edney’s submission that I should accept what you said in the interview, that you, too were the victim of a scam is more troubling than trying to apply that explanation to Charges 1 to 3.
66 A conviction for obtaining by deception requires proof:
1. that you obtained property belonging to another;
2. that you did so with the intention of permanently depriving that other of that property;
3. that you obtained the property by deception, that is by making a representation that you knew at the time of making was false, or probably false; and
4. that you obtained the property dishonestly. That is that you did not believe you had a legal right to obtain it.
67 If you were the victim of a scam, that is if you had genuinely believed at the time you made your representations to the Alvaros and their friends, and obtained the property from them, that the investment in China was real, then element 3 of the charge of obtaining by deception, would not be made out.
68 Your account in your interview and your daughter's account of your behaviour is inconsistent with knowing at the time the representations were made, that there were or were probably false.
69 It is probably also inconsistent with proof of element 4, that you did not believe you had a legal right to obtain the money for the purpose you obtained it.
70 When I raised my concerns about the compatibility of accepting the truthfulness of your account in interview with your guilty pleas, Mr Edney conferred with you, and then confirmed that you had entered your pleas in full knowledge that a plea of guilty constituted an admission of the elements of the offence, and that you admitted the facts contained in the crown opening. That is, it was an agreed statement of fact. Mr Edney is an experienced criminal practitioner. I have no basis for doubting that he has discharged his professional obligations competently and ethically. I accept without qualification what he has told me. I therefore proceed on the basis that you have made an informed decision to plead guilty, well aware of what a guilty plea entails, and that your decision to accept the prosecution summary, as an agreed statement of facts, is an informed one.
71
How then can I act on the basis you were soliciting funds from the Alvaros for a scheme you believed was genuine? Mr Edney submitted I could reconcile the pleas with the account in your interview as consistent with the state of mind of recklessness as to the truth of the representations you made.
I disagree.
72 Recklessness as to the truth of the representations is inconsistent with the explanation advanced in the recorded interview, and with the evidence of your conduct set out in the emails of your daughter and son, relied on by Mr Edney, and in your daughter's evidence. Consistently with what you said in your interview, your daughter's account and the emails reveal that at the time the Alvaros were being defrauded, and at the time the perjury was committed, you continued to maintain to your family, and to the police, when the family sought to have them investigate what they believed to be a scam, that it was genuine. It is also inconsistent with what you told Dr Danny Sullivan, the psychiatrist, as recently as June this year, namely that you had only recently come to accept the scheme was a scam.
73 I cannot accept for sentencing purposes that you believed the scheme was genuine at the time you obtained the money and property from the Alvaros and their friends, and when you attested to the truth of the document. That would require me to sentence you on a factual basis incompatible with your pleas of guilty.
74 As I am told you accept the summary, enter your pleas knowing they amount to an admission of all elements of the offences, and, after I had raised my concerns about traversing the pleas, being told that you, through Mr Edney, that you did not seek to change your pleas, I cannot rely on your asserted belief at interview that the scheme was genuine, as a sentencing fact.
75 Dr Sullivan was asked by your legal advisers to assess you, and in particular, to address any mental health issues relevant to sentencing. He noted that his opinion was cautious, as many facts claimed by you were unsubstantiated or not verifiable.
76 He was, however, clear in finding that there was no evidence of a psychotic illness, such as a delusional disorder, and no indication the offences were associated with any mental disorder. He noted that you remained working as a real estate agent during, and for some years after the offences, and that your functioning was not clearly impaired.
77 In paragraph 3 of his report, he said this,
"I cannot find any evidence of a psychotic illness, such as a delusional disorder. Mr Loh was insistent that he was funnelling money to a Chinese man, who promised him significant returns. He reports that he inveigled others to provide money to him because he believed that he would receive substantial returns on his investment.
He states that upon his arrest he accepted that he had been swindled and continues to accept this. There is no element in the story which could be considered delusional. Mr Loh is either fabricating the story or the other man existed, in which case Mr Loh's behaviour may have been associated with gullibility or poor choice. However, such accounts do not mean that Mr Loh was suffering from delusions. He insists that Mr Kock was a real person.”
78 Your daughter, when asked whether you now accepted that it was a scam, said “he sways, he’s very stubborn that way.” Later, in cross‑examination, she said that you had, at times, since being charged expressed some doubts about the genuineness of the scheme, but reverted to denial. She said you were desperate to believe it was real.
79 I can only treat these assertions, in light of what I accept is the informed nature of your guilty pleas, and Dr Sullivan’s opinion, to be an attempt to maintain face, or a failure, despite the pleas, to accept moral responsibility for your conduct.
80 I am fortified in this view by the terms of the open letter tendered on your behalf on the plea. It is headed, "Sorry N Guilty”. Followed by the words, “Ask the barrister to say for me in court”.
81 It then says, “I admit I am wrong. I am guilty, extremely sorry to Luis and those who lend me money. Please forgive me for my wrongdoing, I will change and never do it again.”
82 It follows that there is no basis for rejecting your guilty pleas. So far as all deception counts are concerned, I sentence you on the basis that you did not believe the representations to be true at the time you made them. I must sentence on that basis.
83
So far as the perjury charge is concerned, your explanation was that you were prepared to swear a false statutory declaration to assist the Alvaros for tax purposes. Whether your motivation was to assist them to present false information for tax purposes, or whether this demonstrates, as the agreed summary says, that you continued to hold out to them, that they had invested in Benchmark investments, is of little moment. Neither explanation reflects any credit on you. Both bespeak a preparedness to lie, and deceive, and
a disregard for the law.
84
Your explanations generally then reflect little credit on you. To put that you too are a victim of a scam is to avoid taking responsibility for your conduct, by seeking to place the blame on others. I do not consider that to be evidence of remorse for the Alvaros. Even if you were the victim of a scam, that does not justify deceiving others, or exploiting their naivety or greed so you could continue to pursue your gamble for windfall profits. Although you appear to waver between maintaining the scheme was genuine and accepting it was
a scam, I take your letter of apology as an acknowledgement of wrongdoing to the Alvaros, and a reflection of remorse for what you have done to them.
85 I am left with the uncomfortable feeling that there is more to this than I have been told. Your conduct, as explained by your children, and by you in interview, seems at odds with the behaviour that would have been expected of the successful businessman, who had no problem with gambling, substance abuse or insurmountable debts, that you were until the early 2000s. Nothing has been said by you to suggest that you were under any form of coercion from the outset, which you are too afraid to disclose, or to suggest that you were like a compulsive gambler, consumed by the belief the next wager would be a winner. No other explanation has been advanced.
86 I cannot speculate about why you did this. I must sentence you on the agreed facts or the facts as found by me, and in the absence of satisfactory explanation.
87 This is serious offending. You extracted over one $1 million from the Alvaros and their friends over a period of 9 months. It may be that they were too trusting, or gullible, or greedy, lured by the promise of high returns, and prepared to continue to give you money, most of it in cash, generally without asking for receipts, even in the face of broken promises about the interest payments and the return of the initial funds, and then in the face of repeated requests for top up amounts to secure the release of the promised millions. However, that makes the offending more serious. Having been shut off from extracting further funds from people you knew, your family, friends and church connections, you exploited this easy source of money, deceiving the Alvaros and persuading them to hand over further and further sums until they had nothing left.
88 None of their money is recoverable. The victim impact statements make clear the effect that has had on them.
89
You have indicated that you consent to the making of compensation orders.
I do not regard that as a significant mitigator, or, in the circumstances, evidence of remorse. Your pleas of guilty and your acceptance of the prosecution summary make the making of those orders inevitable. And they are of no real assistance to the Alvaros in recouping their funds. All their funds were converted to, or received as cash, and there is no trace of where the monies went, once they fell into your hands. And as Mr Edney frankly acknowledged, you have no assets, and no means of repayment.
90 It is clear therefore, that just punishment, denunciation and deterrence all require considerable weight.
91 Balanced against those sentencing considerations are these matters. You are now 65 and you have lost everything; your family, your church, your friends and your money. You were a person of good character, up until your mid 50s. You had been, by all reports, a good father and husband. You had worked hard, brought up a family and supported them through school and university, and into successful professional careers.
92 You are entitled to credit for all of that. Although as Ms Bhai correctly pointed out, it was your maturity, your business experience, and the position you held at Benchmark which put you in a position where you could exploit those qualities and commit these deceptions.
93 There has been considerable and inexcusable delay in investigating and laying charges. Although the deceptions occurred between September 2003 and May 2004, and the perjury was committed in August 2006, it was not until May 2008, four years after the last deception, that the Alvaros made complaint to the police. It took another 4 years before your plea was heard. After complaint it took 9 months before warrants were issued, and a further year passed before you were interviewed, in October 2010. Close to a year passed after that before you were finally charged in September 2011. Once charged, matters moved with commendable speed, and your plea was heard in this court less than 10 months after charges were laid.
94 The delay is a matter to take into account. You have had the matters hanging over your head, unresolved, for a considerable period. And that time has not treated you well. I have already referred to your slide from living in the family home with a comfortable retirement in prospect with your family, to living in a shared house with strangers, with nothing other than the age pension to provide for your needs.
95 You are estranged from all of your immediate family except your daughter, Elsie. She, like the rest of the family, long ago ran out of patience with your conduct in repeated attempts to extract money from family and friends, but continues to offer you support; emotional, practical and financial. While not condoning your conduct, she says you are still her dad, and she will continue to provide support to you.
96 Your estrangement from your former wife is now complete. She ultimately took out an intervention order against you, as you continued to importune her to advance monies to you. You ignored that order, and ultimately were charged with, and convicted of breaching the intervention order.
97
You have also faced court since the commission of these offences, but before they were dealt with, on a number of occasions, for unlicensed driving.
This conduct is a far cry from the successful and law abiding man you were before you began committing these offences.
98
You have also suffered a serious assault and face a prospect, whilst in custody, of giving evidence in the trial of those charged with kidnapping and assaulting you. That too will clearly add to the burden of imprisonment.
I have read your lengthy police statement. You recount a terrifying experience which lasted many hours.
99 Dr Sullivan reported that you present with symptoms of depression and anxiety, mild to moderate in severity. He says your symptoms have worsened since the 2010 kidnap and assault. He diagnoses you as suffering a mood disorder. He notes that you have had some past psychiatric contact, but have not persisted in taking medication or engaging with follow-up.
100
He noted the limitations of the past two psychiatric assessments, namely they were limited in scope, reliant on self report and without follow up.
He considers that engagement with a psychologist would help you cope and compliance with medication may improve some of the mood disorder.
101 He does not consider imprisonment will be more onerous for you, by reason of mental disorder, as you elected not to persist with treatment whilst in the community. He said you are likely to be distressed if imprisoned, but that you would be able to access appropriate psychiatric and psychological treatment.
102 Imprisonment for the first time, at age 65, for a person previously of good character and estranged from his family, are all features relevant to the assessment of the burden of imprisonment and will add to it for you.
103
I accept that you are unlikely, by reason of your age and the circumstances of your convictions, to be in a position to offend in like manner in the future.
In my view, your risk, generally, of re-offending is low.
104 I also take into account in your favour the significant utilitarian benefits of your guilty plea. You pleaded guilty at the first opportunity and in the circumstances where a trial would have been long and complex.
105
In arriving at the appropriate sentences I have followed this reasoning.
I consider Charge 1 to be a serious matter, because it is the first step in the fraudulent scheme that you then embarked upon. There is some merit in the proposition that it is the first step that is the most significant, because the steps thereafter are simply perpetuating the wrongdoing that you had committed yourself to, by reason of the first step.
106 I treat Charges 1, 2 and 3 as part of a continuing episode, because they all relate to that first encounter with the Alvaros. Therefore the sentences for Charges 2 and 3 are less than the sentence on Charge 1, not only because of what I have said about the significance of Charge 1, recognising the first step, but also because they are for lesser amounts.
107
So far as the sentences on Charges 4 through 9 are concerned, I have imposed on them sentences of the same magnitude as the sentence on Charge 1 and save for Charge 9, which is for a lesser amount and therefore
I have fixed proportionately a lesser amount for that.
108 I have imposed cumulations on the charges that represent stand alone deceptions of a greater amount than the cumulations I have imposed for charges where they are part of a continuing act. Therefore, the cumulations on Charges 6 and 7, which relate to the two amounts obtained on 11 March 2004, are less than the cumulations in respect of the stand alone counts of Charges 4 and 5, and Charge 8.
109 The cumulation on Charge 9 is again a lesser amount because that deception was for a lesser sum.
110 Finally, I have treated Charge 10 separately because it is a charge of perjury, and imposed a more significant period of cumulation in respect of that charge, than I have for the other charges.
111 In arriving then at the total effective sentence I have had regard to the principle of totality and to the matters that I have indicated, reflective both of the seriousness of the offending and the matters counting in your favour.
112 I have also imposed a significant gap between the head sentence and the non parole period to reflect those matters I have referred to. Could you now please stand? Not you. Just Mr Loh.
Sentence
113 Steven Loh, on the 10 charges, to which you have pleaded guilty, you are convicted:
114 On Charge 1, you are sentenced to be imprisoned for a period of two years. That is your base sentence.
115 On Charge 2, you are sentenced to be imprisoned for a period of one year and six months, and I direct that three months of that be served cumulatively upon the sentence on Charge 1 and the other partial cumulation orders I am about to pronounce.
116 On Charge 3, you are sentenced to be imprisoned for a period of nine months, and I direct that three months of that be served cumulatively upon Charge 1, and the other partial cumulation orders.
117 On Charge 4, you are sentenced to be imprisoned for a period of two years, and I direct that six months of that sentence be served cumulatively upon the sentence on Charge 1 and the other partial cumulation orders.
118 On Charge 5, you are sentenced to be imprisoned for a period of two years, and I direct that six months of that sentence be served cumulatively upon Charge 1, and the other partial cumulation orders I make.
119 On Charge 6, you are sentenced to be imprisoned for a period of two years, and I direct that three months of that sentence be served cumulatively upon Charge 1, and the other partial cumulation orders I am making.
120 On Charge 7, you are sentenced to be imprisoned for a period of two years, and I direct that three months of that sentence be served cumulatively upon the sentence on Charge 1, and the other partial cumulation orders.
121 On Charge 8, you are sentenced to be imprisoned for a period of two years, and I direct that six months of that sentence be served cumulatively upon the sentence on Charge 1, and the other partial cumulation orders.
122 On Charge 9, you are sentenced to be imprisoned for a period of one year and six months, and I direct that three months of that be served cumulatively upon the sentence on Charge 1, and the partial cumulation orders I am making.
123 On Charge 10, you are sentenced to be imprisoned for a period of one year and six months, and I direct that nine months of that be served cumulatively upon the sentence on Charge 1, and the other partial cumulation orders.
124
That makes a total effective sentence of five years and six months, and
I direct that you serve a period of three years before being eligible for parole.
I declare that you have spent 15 days in pre-sentence detention, and direct that that be counted and reckoned as part of the sentence already served.
125
I have some other orders to make. You can be seated, Mr Loh, while
I pronounce the balance of them.
126 I make the continuing criminal enterprise declaration in respect of Charges 1, 2 and 4 to 9, inclusive.
127 I declare, pursuant to s.6AAA that but for your pleas of guilty, I would have sentenced you to the following terms of imprisonment. On Charge 1, imprisonment for three years. On Charge 2, imprisonment for two years and three months. On Charge 3, imprisonment for 12 months. On each of Charges 4 to 8, I would have sentenced you to terms of imprisonment of three years.
128
On Charge 9, I would have sentenced you to a term of imprisonment of two years and three months. On Charge 10, I would have sentenced you to
a term of imprisonment of two years and three months. With the same pattern of partial cumulation orders, that I would have arrived at a total effective sentence of eight years and three months, and I would have fixed a period of six years, as the term you had to serve before being eligible for parole.
129
I have been asked to make compensation orders for the defrauded parties.
I propose to do so, noting that you have consented to them. So far as Carlos and Gloria Alfaro are concerned, I make a compensation order in the amount of $215,000. So far as Luis Alfaro is concerned, I make a compensation order in the amount of $390,000. So far as Ricardo and Marilou Alfaro are concerned, I make a compensation order in the amount of $387,000. So far as Gonzalo Montti is concerned, I make compensation order in the amount of $135,000.
130 Do the orders that I have pronounced reflect what I said I intended to do?
131 MS TEAGUE: Yes, Your Honour.
132 HER HONOUR: And is the arithmetic correct?
133 MR RICHTER: Yes, Your Honour.
134 HER HONOUR: Are there any further orders that are required?
135 MS TEAGUE: No, Your Honour.
136 HER HONOUR: Thank you. Could you remove Mr Loh please. Adjourn.
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