Director of Public Prosecutions v Malisevs

[2020] VCC 38

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-00306

THE QUEEN

v

ARTUS MALISEVS

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JUDGE:	HER HONOUR JUDGE GWYNN
WHERE HELD:	Melbourne
DATE OF HEARING:	13 December 2019
DATE OF SENTENCE:	3 February 2020
CASE MAY BE CITED AS:	DPP v Malisevs
MEDIUM NEUTRAL CITATION:	[2020] VCC 38

REASONS FOR SENTENCE

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Subject:Furnish false information, obtaining a financial advantage by deception, obtaining property by deception, possess false travel documents, attempting to obtain a financial advantage by deception.

Catchwords:

Legislation Cited:    Sentencing Act 1991 (Vic), Crimes Act1914 (Cth)

Cases Cited:

Sentence:Total effective sentence of four years and one month with a non-parole period of two years and nine months

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APPEARANCES:	Counsel	Solicitors
For the Queen	Mr J. Saunders	Office of Public Prosecutions
For the Accused	Mr S. Tovey	Giorgianni & Liang Lawyers

HER HONOUR:

1Artus Malisevs, you have pleaded guilty on indictment to two charges of furnish false information; four charges of obtaining a financial advantage by deception; five charges of obtaining property by deception; one charge of possess false travel documents; and one charge of attempting to obtain a financial advantage by deception.

2In sentencing you for these crimes I must have regard to the maximum sentences for each of the offences that you have committed.  The maximum penalty for all of the offences to which you have pleaded guilty is 10 years imprisonment, save for the attempting to obtain a financial advantage by deception charge, which carries a maximum penalty of five years imprisonment.  The maximum penalties reflect the seriousness with which parliament regards these offences.

3I turn now to the circumstances of your offending.  They are set out in a document entitled, 'Prosecution Opening On Plea'.  This was an agreed document and represents an acceptance by you to all the elements of the offences and the factual basis on which I am to sentence.

4In my view, some further detail needs to be outlined in order to fully understand the serious nature of your offending.  I note that all but three of the charges are what are described as “rolled up” charges, each of which encompassed different victims and multiple instances of offending.

Circumstances of offending

5In April 2018 the Victoria Police Fraud and Extortion Squad received a complaint from the ANZ Bank regarding merchant banking accounts being opened with false documents.  An investigation commenced which ultimately revealed your offending.  In terms of Charge 1 and 5, furnish false information, you are a Latvian citizen who arrived in Australia on a tourist visa on
6 May 2017.  That visa was due to expire on 31 July 2017.

6On arrival in Australia you completed an incoming passenger card.  Some of the information was false and was inserted in order for you to gain entry to Australia, including marking the card that you did not have a prior criminal history.  A search of Interpol records shows that at the time of entering Australia you did have prior convictions for dishonesty offences in Germany, the United Kingdom, France and Ireland.  This act comprises Charge 1, furnish false information.

7On 24 July 2017, in advance of your visa expiring, you applied for a further visa.  You again stated that you did not have prior convictions.  This visa was also granted and was due to expire on 3 September 2017.  That act comprises Charge 5, furnish false information.

8I now turn to Charge 6, possess false travel documents.  At various times, between 10 August 2017 and 6 June 2018, you had in your possession or control 10 false foreign passports.  Each of these passports were in a different name and each contained a picture of you identifying yourself as the holder of that passport.  The provision of false information upon entry and subsequent visa application, combined with your possession of false foreign passports, facilitated the offending which was to follow.  Any penalty imposed for these charges, taking into account totality and the crucial role they played to commence and then facilitate your offending will be concurrent with other sentences imposed.

9Charge 2 I refer to as the ASIC offences.  Not long after your arrival, between 20 May 2017 and 20 May 2018, you registered three companies through Company 123, an ASIC agent.  The registration of the companies was done online and the fees for these services were paid by the provision of false credit card details.  The amount of financial advantage obtained was $1581.10.  In some ways I consider this charge in the same way as the Commonwealth offences.  It provided the foundation for your ongoing offending.

10Charge 3, occurred between 9 June 2017 and 26 July 2017. You purchased three TAG Heuer watches from LVMH Watch & Jewellery Melbourne.  These purchases were made online using false credit card details and false passport details which were provided for identification.  The total of the three watches was $15,950.  This offending stands separately in type from the majority of your offending.

11Charge 4, occurred between 28 June 2017 and 2 April 2018. You registered seven companies through Business Switch Pty Ltd.  The registration of these companies was done online and the fees for these services were paid by the provision of false credit card details.  The amount of the financial advantage obtained was $4263.  Again, this offending has provided the structure for your ongoing offending.

12Charge 7, occurred between 17 August 2017 and 9 May 2018. You processed a number of transactions through CBA Merchant Facilities, that is, EFTPOS machines provided by the bank to six of the companies you had registered.  Each of these transactions used stolen credit card information which was entered into the EFTPOS machine, the machine being linked to the business account of the company to which it was assigned.  The money credited to those business accounts was then transferred to other personal accounts and from there disbursed to unknown locations.  The total sum obtained from the CBA was $229,547.73.  It is axiomatic to describe this offending as serious.

13Charge 8 involves two discrete types of offending, and I note that particular, (g), was withdrawn.  Particulars (a), (h), (k), (l) and (m) involves offending between 7 September 2017 and 2 May 2018 when you made applications to the ANZ Bank for transaction cards with $10,000 credit limits for five of the companies you had registered.  Those applications were approved and the credit cards were granted.  The details provided in the applications for the credit facilities was false.  The credit facilities were then used by you to obtain goods and services.

14Particulars (b), (c), (d), (f), (i) and (j) involve offending between 19 September 2017 and 2 March 2018. You processed a number of transactions through ANZ Merchant Facilities, again EFTPOS machines, provided by that bank to three of the companies you had registered.  Each of these transactions used stolen credit card information which was entered into the EFTPOS machine, the machine being linked to the business account of the company to which it was assigned.  The money credited to those business accounts was then transferred to personal accounts and from there disbursed to an unknown beneficiary or unknown beneficiaries. The total sum obtained from the ANZ, was $123,671.76.

15Charge 9, attempting to obtain financial advantage by deception,
occurred between 28 September 2017 and 7 March 2018. You processed numerous transactions through ANZ Merchant Facilities, again EFTPOS machines, which had been provided by the bank to several of the companies that you had registered.  Each of these transactions used stolen credit card information which was entered into the machines.  The transactions were declined.  The total sum that you attempted to obtain from the ANZ Bank was $332,130.04.

16In addition, on 8 September 2017, you attempted to obtain a $50,000 credit card facility from AM COACHING Pty Ltd, a company you had registered.  The details in which the application for the credit facility was based was false.  That application was also refused.  In company with charges 7 and 8 this was also very deliberate and significant offending.

17Charge 10, occurred between 6 November 2017 and 6 April 2018 when you used a credit card issued in the name of one of the companies you had registered for a number of day to day purchases and cash withdrawals.  The value of the property obtained was $373.35.  This offending is relatively innocuous in the context of your other offending.

18Charge 11, occurred between 6 April 2018 and 27 May 2018 when, using a number of false identities, you made 11 online purchases of electronic equipment from DJ City.  False credit card information was used to pay for the purchases.  On a number of occasions the cards used were declined before further false credit card information was provided and the purchase approved.  The equipment was delivered to various addresses you nominated.  The total value of the property obtained was $22,479.50.  This is also very different in nature from your other offences.

19Charge 12, occurred on 3 May 2018 when you attended at Collections Fine Jewellery in South Yarra and purchased a Breitling gold watch valued at $10,100.  You paid a deposit of $2000 using an ANZ credit card in the name of Galaxyrent Pty Ltd and Ramunas Galdikas.  On 11 May 2018 you attended Collections Fine Jewellery where you paid the balance outstanding on the watch, using a credit card in the name of Arthur Panini.  The valuation for insurance certificate provided to you by Collections Fine Jewellery valued the watch at $15,000.

20Final charge, Charge 13, on 2 June 2018 you attended Melbourne Pawnbrokers in Flinders Street, Melbourne.  You provided your real name and provided your Latvian passport as identification.  You loaned the Breitling gold watch referred to in Charge 12 for the sum of $4000 in cash.

21Your offending, over what amounts to a 13 month period, was highly orchestrated and sophisticated.  For example, it was clearly facilitated by use of the false passports and company structures, but you also obtained mobile phone numbers, mostly connected in false names, and registered to false addresses, and also created Gmail accounts mostly in false names.  Using false identities you registered companies with ASIC.  The registration documents and ASIC certificates for the companies created were sent to the false Gmail accounts.  You were able to attend a number of banks using false documents to obtain credit.  Using false phone numbers, addresses and Gmail accounts you were able to maintain contact and receive statements.  You provided false business documentation to support the business account applications.

22For some of the newly created companies you sought the supply of EFTPOS merchant facilities linked to the business accounts.  When those facilities were provided, stolen overseas credit card information was entered into the facility and the funds obtained and credited to nominated accounts.  Moneys credited to those accounts were then redirected to the associated personal accounts and withdrawn.  Your offending took place in a range of guises and mechanisms.  In its essence your offending was persistent, planned and, as already stated, sophisticated.  In total, you were able to obtain $411,906.44.  You attempted to obtain a further $375,013.04.  Your sole purpose in coming to Australia was a criminal one.

23General deterrence and denunciation must loom large consisting a warning to you and to those considering committing similar offences.  Given the scale, high level and duration of your offending, specific deterrence also has a role to play.  This is reinforced by the fact that your offending in other countries, whilst relevantly minor, is all dishonesty related.  I find the objective gravity of your offending and your moral culpability to be high.

24On 6 June 2018 police attended at Bentleigh Fitness Centre where you were arrested.  They searched your gym bag, executed a search warrant on a car linked to you and at a premises located in Glen Eira Road, Elsternwick.  You were then conveyed to the Melbourne West police station where you provided a DNA sample and fingerprints taken.  You were not interviewed at that time.  At the time of your arrest you were an illegal non-citizen.

Personal circumstances

25I now turn to your personal circumstances.  I am told you are presently 31 years of age and were born in Riga, Latvia.  You have one older sister and one older brother who died when you were seven years of age.  Your mother is 74 and your father 73.  They both reside in Latvia, where your sister also resides, and they are reportedly in poor health.  Your father, unfortunately, suffers dementia and your mother is wheelchair bound.  Your sister is able to care for each of them.

26You report having had a good relationship with your parents and that you were raised in a happy environment.  You were a good student in school and excelled in sports.  At the age of 14 you took up boxing.  By 16 years you were showing potential but an injury to both knees saw you hospitalised for some months with six month recovery required in a rehabilitation centre.  After this injury you got work with your father who owned and ran gyms and wellness centres.  You continued working for your father until you were aged around 18 years.

27At the age of 18 you decided to move to the UK and commenced a professional boxing career.  You later moved to Dublin, Ireland, where your sister was living at that time, to train with a boxing professional.  During this time you met your now ex-partner, Julia, with whom you were in a relationship for some six years.  At the age of 25 you had a reoccurrence of your knee injury and had to stop boxing.  You then returned to England with Julia.  You had an opportunity to work with a friend in Nottingham in a business called, First Choice, which would be paid fees for organising seasonal workers from eastern Europe for clients such as large farms and warehouses.

28At this time you and your partner contemplated having children but this proved difficult and placed strain in the relationship.  Around the same time your mother visited in the UK and whilst doing so suffered a major stroke.  This resulted in her being paralysed in the left side and she had to relearn how to walk, talk and swallow food.  She remained in England for some eight months before returning to Latvia.  Shortly after your mother's stroke I am told your father suffered a minor heart attack.

29Following on from this combination of issues you took time away from work.  You say you felt pressures from all angles, being work, your partner and the health of your parents. I am told you then began to drink and gamble excessively to deal with those issues.  Over time your inability to deal with these problems meant you were essentially not working and you broke up with Julia.  You tried to start your own business and, not wanting to borrow money from your parents, took out a loan of £50,000 from someone described as a loan shark, who you had met through your period as a boxer.  In fact you did not start your own business and spent the money gambling and drinking.  You instruct that when the loan shark came calling you were unable to pay the money back.

30You say you were told you could either pay the money back by travelling overseas using foreign cards to steal money, or face other, more dangerous, consequences.  You chose the former.  You were given instructions on how to commit the offences and where to send the money.  This provided the genesis for your offending which you appear to have enthusiastically and ably embraced. 

31I have no basis to form the view that you were the architect of this scheme.  However, you were clearly part of an organised syndicate where your role was to undertake essential tasks to achieve the relevant criminal purpose.  Based on your instructions, your counsel puts that approximately $100,000 was returned as per your debt, which leaves a considerable amount unexplained and unaccounted for.  Whilst likely not the only beneficiary of your offending, you obtained a substantial portion and offended for reward.

32Whilst in Australia you instruct that you continued to drink and gamble heavily.  You opened numerous accounts at Crown Casino, some in your own name.  Material submitted on your behalf indicates that in 2017, you spent more than 163 hours at Crown Casino, and that your average bet was $726.  $153,900 in cash was exchanged for gambling chips.  A win of $67,492 was also recorded.  Up until your arrest in June the 2018 records reflect that you spent 19 hours at the casino where your average bet was $246. It was submitted that rather than experiencing a lavish lifestyle, monies you obtained were used for these purposes.  I see little basis for distinction.  You were clearly able to do what you want, when you wanted and spend it how you wish.  I consider this to be lavish. 

33There was no material tendered on your behalf relating to your gambling that was in addition to the material in the depositions to which I have just referred.  I have no basis to form the view that your use of either alcohol or gambling was on a problematic level, particularly in 2018, such as would explain or reduce your moral culpability.

34You have no friends or family in Australia.  In August 2017 you met Samai Sripim.  You and she have a one year old daughter together, Christine.
Ms Sripim resides in Adelaide and you have only met your daughter once, approximately six months ago.  Not much further was made of these relationships in terms of relevant sentencing considerations.

35You have been in custody since your arrest, a period which now constitutes, at least on my maths, 607 days.  You obtained a billet's position whilst on remand and I am told run boxing classes for other prisoners.

Sentencing

36I accept that you have pleaded guilty at an early opportunity.  Your plea has utilitarian value and has saved the court the time and expense of what was likely to be complex proceedings.  It is representative at least of some remorse.  You will undoubtedly be returned to Latvia on completion of any sentence.  It is difficult to assess your prospects for rehabilitation given the seriousness of your offending and limited materials tendered on your behalf.  I do accept overall that those prospects remain live.

37I accept the sentences imposed need to consider sentencing principles in relation to both State and Commonwealth offending.  They also need to reflect the differing amounts obtained as well as the similarity in some of the offending and their intertwined purposes.  Overall the totality principle applies which requires that where an offender is being sentenced to multiple terms or is otherwise to serve multiple sentences, then the sentences should ensure that the total sentence remains just and appropriate for the whole of the offending.  Care also needs to be taken to reflect the separate criminality contained in the 13 charges.

38I do make the ancillary orders as sought for both forfeiture and disposal.

39In terms of the basic purposes for which a court may impose a sentence, they are punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community.  In sentencing you I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of your victims.  I am also required to balance the interests of community in denouncing criminal conduct with the interest the community clearly has in seeking to ensure as far as possible that offenders are rehabilitated and are reintegrated into society.

40I have taken into account the relevant sentencing guidelines referred to in s.5 of the Sentencing Act 1991 (Vic) were relevant to your case. With the Commonwealth offending I have taken into account the general sentencing principles contained in Division 2 of the Crimes Act 1914 (Cth), specifically the provisions of s.16A(2). I have also taken into account current sentencing practices for the offences for which you have pleaded guilty and read the cases to which counsel have referred.

41As indicated at the start, a chart will be provided, setting out the individual sentences in which I aim to reflect their differing gravity, avoid double punishment and apply the totality principle, together with the relevant sentencing principles to which I've just referred.

42I will just deal briefly with the Commonwealth offences.  In terms of the Commonwealth offences, of charges 1 and 5, I intend to impose an aggregate on those two offences.  I propose to impose an aggregate as I am satisfied that those two offences are founded on the same facts or form part of a series of offences of same or similar character.  In so doing I also bear in mind, as indicated, the principles of totality, but also proportionality, which have application to all the charges on the indictment.

43The aggregate sentence that will be imposed on charges 1 and 5 is one of 12 months imprisonment which is to commence 12 months prior to the expiration of the non-parole period to be imposed on the State sentences.

44In terms of Charge 6, described as the passport offence, you are convicted and sentenced to 12 months imprisonment, which will also commence 12 months prior to the expiration of the non-parole period on the State sentences.

45I now turn to the State sentences.  I will hand the chart down after I have read them out.

46Charge 2, obtaining a financial advantage by deception, convicted and sentenced to two months imprisonment.  There is no cumulation.

47Charge 3, obtain property by deception, which is the TAG Heuer watches, convicted and sentenced to eight months imprisonment, of which two months is cumulative on the base sentence.

48Charge 4, obtaining a financial advantage by deception, which is the ASIC registrations, convicted and sentenced to six months imprisonment, no cumulation.

49Charge 7, obtaining a financial advantage by deception, which is the $229,547.73 offence effectively, the sentence is two years and four months imprisonment, which is the base sentence.

50Charge 8, which relates to obtaining a financial advantage in excess of $173,000, convicted and sentenced to two years imprisonment, of which six months is cumulative.

51Charge 9, the attempt to obtain some $382,000, convicted and sentenced to two years imprisonment, of which eight months is cumulative.

52Charge 10 are the relevantly minor credit card purchases, convicted and sentenced to one month imprisonment, no cumulation.

53Charge 11, which is the DJ gear offending, convicted and sentenced to nine months imprisonment, of which two months is cumulative.

54Charge 12, obtaining property by deception, again relating to watches, convicted and sentenced to six months imprisonment, of which two months is cumulative.

55Finally, Charge 13, the obtain property by deception, which was from Cash Converters, convicted and sentenced to three months imprisonment, of which one month is cumulative.

56I will have the chart handed down now but that is a total effective sentence of four years and one month.  The non-parole period will be fixed at two years and nine months.  Pre-sentence detention is 670 days.  That will be reckoned as already served. Sectiom 6AAA of the Sentencing Act 1991 (Vic) requires me to state the sentence that I would have imposed if you had not pleaded guilty to the charges. If not for you pleas of guilty I would have imposed a sentence of six years imprisonment with a non-parole period of 4 years.

57COUNSEL:  If Your Honour pleases.

58HER HONOUR:  If I ultimately have made any errors in relation to that let me know.  You do not have to do it right now.  Anything arising at this stage?

59MR SAUNDERS:  No, Your Honour.

60HER HONOUR:  All right, if you could remove the prisoner, and thank you, gentlemen, you are excused.

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Charge on Indictment	Offence		Maximum	Sentence	Cumulation
1	Furnish False Information 6/5/17 Migration Act  s234 (1) ( c )		10 years	12 months Aggregate with 5	None
2	Obtain financial advantage [$1,581.1] by deception between 20/5/17-20/5/18 (ASIC registration) Crimes Act 1958 s 82		10 years	2 months	None
3	Obtain property [$15,950] by deception between 9/6/17 and 26/7/17 (Tag Heuer watches) Crimes Act 1958  s 81		10 years	8 months	2 months
4	Obtain financial advantage [$4263] by deception between 28/6/17-2/4/18 (ASIC registration)    Crimes Act 1958 s 82		10 years	6 months	None
5	Furnish False Information 24/7/17 Migration Act  s234 (1) ( c )		10 years	12 months Aggregate with 1	None
6	Possession of false travel documents (10 passports) between 10/8/17 and 6/6/18             Foreign Passport (Law Enforcement and Security Act 2005 s 22		10 years	12 months	None
7	Obtain financial advantage [$229,547.73] by deception between 17/8/17-9/5/18 (Commonwealth Bank credit)    Crimes Act 1958 s 82		10 years	2 years and 4 months	Base
8	Obtain financial advantage [$173,671.76] by deception between 7/7/17-10/11/17 (ANZ credit)         Crimes Act 1958 s 82		10 years	2 years	6 months
9	Attempt to obtain financial advantage [$382,155.04] by deception between 8/9/17-7/3/18 (ANZ credit)   Crimes Act 1958 s 321M and s 82)		5 years	2 years	8 months
10	Obtain property [$373.35] by deception between 6/11/17 – 6/4/18  (credit purchases)     Crimes Act 1958 s 81		10 years	1 month	None
11	Obtain property [$22,479.50] by deception between 6/4/18-27/5/18 (DJ gear)  Crimes Act 1958 s 81(1)		10 years	9 months	2 months
12	Obtain property [$12,000] by deception between 3/5/18-11/5/18  (watches)  Crimes Act 1958 s 81(1)		10 years	6 months	2 months
13	Obtain property [$4,000] by deception 2/6/18 (Cash converters) Crimes Act 1958 s 81(1)		10 years	3 months	1 month
Total Effective Sentence State Offences:		4 years  1 months’ imprisonment
Non-Parole Period:		2 years and 9 months imprisonment
Commonwealth sentences		12 months to be served concurrently
Pre-sentence detention declared:		607 days
6AAA Statement: 6 years’ imprisonment, non-parole period of 4 years