Director of Public Prosecutions v Manmatharajah

[2024] VCC 136

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

GENERAL LIST

Case No. CR-22-01582

DIRECTOR OF PUBLIC PROSECUTIONS

v

SABASHAN MANMATHARAJAH

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JUDGE:	HER HONOUR JUDGE HOGAN
WHERE HELD:	Melbourne
DATE OF HEARING:	15 February 2024
DATE OF SENTENCE:	21 February 2024
CASE MAY BE CITED AS:	DPP v Manmatharajah
MEDIUM NEUTRAL CITATION:	[2024] VCC 136

REASONS FOR SENTENCE
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Subject:

Catchwords:              Two charges of obtaining a financial advantage by deception ($192,500 and $82,500 respectively) – offender was the builder of a residential property who had not completed stages of construction but made representations to the bank of his victims that he had done so entity made him payments, offender’s business went into liquidation leaving victims with unfinished home – victims were friends of offender – late plea of guilty following unmeritorious contested committal and on a subsequent offending – good prospects of rehabilitation – some insights by offender into consequences of his offending.

Legislation Cited:      Sentencing Act 1991 (VIC)

Cases Cited:Worboyes v The Queen [2021] VSCA 169, R v Verdins & Ors [2007] VSCA 102.

Sentence:                  Total Effective Sentence is a Community Correction Order for a period of 3 years.

s6AAA: 15 months’ imprisonment with a non-parole period of 9 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr F Cameron	Solicitor for Public Prosecutions
For the Accused	Mr J Singh	Pentana Stanton Lawyers

HER HONOUR:

1Sabashan Manmatharajah, you have pleaded guilty to two charges of obtaining a financial advantage by deception, each of which carries a maximum penalty of 10 years’ imprisonment.

2The circumstances of your offending are detailed in the Summary of Prosecution Opening.[1]  Your offending occurred on 17 September 2018 (Charge 1) and 22 December 2018 (Charge 2).  You were a registered builder and the sole director of Oviya Homes Pty Ltd (Oviya), which conducted your business of constructing residential properties. The victims of both Charge 1 and Charge 2 were a married couple who were well known to you as part of the Sri Lankan community. Like many of the community they fled to settle in Australia due to the civil war in their country.  You had been to school in Jaffna with the husband of the couple. Both of your victims and their children were friends of you and your family.

[1]Exhibit “A”

3On 9 September 2017 your victims signed a contract for you to build a home for them and, in November 2017, they obtained a loan from Westpac Bank (Westpac) in order to construct it.  A building permit was issued on 28 February 2018.  The contract between Oviya and your victims required them to make progress payments as the building progressed.  These payments comprised a base payment of $82,500, another payment of $110,000 once the frame had been constructed, a third payment of $192,500 once the construction had reached lockup stage, a fourth payment of $82,500 at fixing stage, and a final payment of $55,000 at completion stage.

4On 17 April 2018 the base stage of the home was completed and a request for payment by your victims of $82,500 was made and that sum was transferred by Westpac to Oviya’s bank account on 19 April 2018.  On 22 August 2018 the frame stage was completed and a request for payment by your victims of  $110,000 was made and that sum, was transferred by Westpac to Oviya’s bank account on 3 September 2018. 

5Your offending on Charge 1 involved you sending Westpac a request on 17 September 2018 for the sum of $192,500, providing false information that the construction had been completed to lockup stage.  Relying upon your deception, on behalf of your victims, Westpac forwarded this sum to Oviya’s account on 19 September 2018.  This is the basis of Charge 1.

6On 22 December 2018 you sent a further request for payment of $82,500 falsely representing that the fixing stage of the house had been completed.  Relying upon this deception, on behalf of your victims, Westpac paid that sum to Oviya’s bank account on 28 December 2018. This is the basis of Charge 2.

7You withdrew the sums which you had obtained by deception from Oviya’s account. On 15 May 2019 Oviya was placed into liquidation.  Your victims had not authorised payment of either of the amounts comprising Charges 1 and 2 and were left with an uncompleted house.  The Victoria Managed Insurance Authority (VMIA) became aware of the situation and the matter was ultimately reported to police on 15 March 2020.  On 12 May 2020 police commenced investigations, but you were not interviewed until 2 April 2021.  When interviewed, you admitted to obtaining the two payments but did not admit that they were unauthorised or that the works which were the subject of the payments had not been completed.

8Victim Impact Statements filed by your victims reveal very considerable psychological, physical and financial consequences of your dishonest behaviour.  They were left in a terrible position where they had difficulty finding a builder to complete their home.  Their statements, which were tendered as Exhibit “B” and “C”, state that they ended up having little choice but to get a builder whom they regarded as less than satisfactory and who did a poor job.  They had expected to rent accommodation for some months before the completion of their new home, but ended up being forced to rent for a much longer period at a rate $2,400 per month. Their home was completed to an inferior standard to that which they had desired. Cheaper materials were used and at a greater cost than the contract price with yourself.  They are disappointed with the lack of attractiveness and what they claim is a shabby job done by the replacement builder. They had to pay interest on the sums which the bank had advanced and suffered great stress navigating the red tape which had been created by your dishonesty.

9You are presently aged 60 years having been born in January 1964.  You come before the court with no prior convictions.

10In a plea on your behalf by Mr Singh, the court was told that, notwithstanding that you had been a builder for 10 years, you had taken on too much work and, in order to remain competitive, you regularly under-quoted for your services.  This resulted in you receiving too little money too late to pay for such things as building permits, insurance, architects fees, engineering, sub-contractors and drainage.  He submitted that, in order to ensure that constructions progressed, you routinely put your own money into the business, as your cashflow was dangerously low. For this reason, ultimately, the business became insolvent, at which stage you had some 30 homes under construction. Your counsel stated that approximately 10 other homes were completed to only stage one or two, and had to be put into the hands of the VMIA. These are not subject of any charge against you.

11Mr Singh urged on your behalf that “the mechanics” of your offending were amateurish in that you had physically altered the two invoices referable to the sums involved in Charges 1 and 2 by whiting out original details with liquid paper and writing over them.  He maintained, that, when you were interviewed, you readily admitted to police that you had made those two alterations. However, the fact of the matter is that you instructed your then legal representative to conduct a contested committal on 1 September 2022, during which you maintained that your victims had given you authorisation to make the alterations to the invoices and submit the request for their payment to Westpac.  This was patently false, and both victims were put through cross-examination, as was their replacement builder and the informant. 

12The matter was committed to the County Court for trial.  There was an initial directions hearing on 29 September 2022, a case assessment hearing on 7 December 2022, and three subsequent directions hearings held on 17 March, 1 May and 10 May 2023.  At some point around May or June 2023, your current counsel became involved, and you ultimately pleaded guilty to the charges when you were arraigned on 21 July 2023.

13Mr Singh noted in his submissions that it is now some five and a half years since your offending.  There has been no explanation as to why there was such a delay in reporting the matter to police and then further delay by police of almost a year before they interviewed you on 2 April 2021.  However, it is clear that part of the delay after you were charged is attributable to you having conducted an unmeritorious committal, during which you had your then legal representative maintain the lie that your victims had consented to the requests for funds to be paid by their bank in September and December 2018 respectively. Of course, it is your legal entitlement to run a contested committal, but yours is not a situation where charges were dropped or lesser charges substituted as a consequence of matters raised at the committal.  Nevertheless, the court takes into account that there has been no subsequent offending by you, and I also accept that, having had these criminal charges hanging over your head during this lengthy period, has caused you anxiety.

14Mr Singh told the court that in the dire situation in which you found yourself financially after the company went into liquidation, you travelled alone to work in New South Wales for almost two years.  You have a wife and three daughters and were anxious to try and provide for them.  You instructed your counsel that you had lost $1.6 million by trying to keep your business afloat.  However, I note that, as at the date of the plea hearing, you live in a home worth $2.3 million albeit that you have a mortgage on it of $1.1 million.  Your equity of $1.2 million in your home contrasts with the situation of your victims. 

15Your victims had paid an amount of $467,500 for the construction which you failed to complete.  They had to pay a replacement builder a further $308,000, which meant that their home ended up costing them $775,500.  They received compensation of the maximum amount from VMIA, namely $126,000.  After taking this compensation into account, they still ended up having to pay extra money to the replacement builder over and above the original contract price negotiated with you. Also, they had to pay rental for an extra 18 months longer than they had planned (a total of approximately $43,020) before they could move into their home, as well as interest on the money of which you had defrauded them.  Even now, the external rendering of their home has still not been completed.[2]

[2]Exhibit “D”, Email from Ms Emily Yates, Office of Public Prosecutions to Chambers of Judge Hogan dated 21 February 2024.

16In sentencing you, I take into account that you have no prior or subsequent criminal history.  However, it must be noted that your good reputation, particularly in the Sri Lankan community, must in part have enabled you to obtain the trust of people like your victims.  Nevertheless, in the 10 years which you have conducted your building business, there is no suggestion that you engaged in any other unlawful behaviour.  Your offending seems to have occurred because you stretched yourself too far by taking on more building contracts that you could manage for the purposes of financial gain. 

17It is trite to say that to be entrusted with the building of a person’s home is a serious undertaking. Obviously, a person’s home is their sanctuary and of very fundamental importance in providing security and comfort to them.  Integrity of a high order is necessary when one is dealing with hundreds of thousands of dollars of precious savings which are to go into a crucial asset. You had been to school in Jaffna with your male victim and were well-aware of the immense challenges which he had suffered.  You were not open and frank towards your long-term friend and have breached the trust that he and his wife reposed in you and caused them great emotional suffering and financial hardship.   

18The Victim Impact Statements mention that they have been vilified by other members of the Sri Lankan community because you were charged with the criminal offending against them.  Whilst you played no part in such vilification, I took the somewhat unusual step of asking whether you had considered writing a letter of apology to your victims so that they could, if they wished, show it to those who erroneously thought that they should in some way be blamed for you being brought before the criminal justice system. Following the plea hearing, a letter was produced dated 15 February 2024.[3]  In that letter, you apologise for causing them financial and mental stress. You note the relationship between your family and your victims’ family and your respective children. You acknowledge that you know that your male victim has been through difficult times in the past, and both of your victims have been good doctors in the Sri Lankan community and come from a hard life in Sri Lanka.  You state that all of this makes you more ashamed of what you have done.  You also apologise for them having to come to court and be asked a lot of difficult legal questions when they were already stressed.  You do not actually descend to any particularity as to why you continued to lie about them having given consent to the subject financial transactions.

[3]Exhibit “11”

19I must say that much of your letter shows an element of self-pity in that you mention that you understand their financial and mental stress because of what you have been going through with your business having been put in liquidation and having a big mortgage and other debts. However, your financial hardship was caused by your own mismanagement, whereas theirs was inflicted by your dishonesty. You express the hope that your victims “can overcome this”, and mention that you are trying to work hard to also rebuild what you have broken in your family.  This seems to me, again, to bring the issue of your own hardship to the fore. You had had plenty of time prior to any police involvement to contact your old friends and try to explain the situation to them.  Instead, they were left in a beleaguered state with an unfinished house and had grave difficulty finding anyone to help them complete it.  They have suffered a very protracted ordeal because of your dishonesty.

20Your counsel submitted that you are remorseful for your conduct.  He relied upon a portion of a report from Mr Jeffrey Cummins, who assessed you on 10 October 2023, for the purpose of providing a forensic psychological report for your plea hearing.  In that report, dated 2 February 2024, Mr Cummins stated:

“At interview [you] expressed guilt, regret and remorse concerning [your] offending behaviour. [You] acknowledged [you were] under stress at work in terms of difficulties with the supply of materials and the availability of appropriate labour and that as a consequence Oviya Homes was having financial difficulties leading up to the business being placed into liquidation in May 2019.”[4]

In my view, this falls far short of true remorse and, indeed, the explanation given by you to Mr Cummins about why your building business failed, namely, difficulties obtaining the services of appropriate subcontractors in the context of “an ‘explosion’ in the volume of the building work”,[5] differs somewhat from your own counsel’s explanation of the cause being that you had taken on too much work, underquoted to get jobs and putting in your own money to make up shortfalls – in other words, your own financial mismanagement.  Nowhere in the history to Mr Cummins is there any mention of the impact on your victims, but, rather, a recitation of why it was that you believed you had their permission to do what you had done, but, nevertheless, had decided to plead guilty after obtaining legal advice.  It is possible that, after learning of the content of the Victim Impact Statements and hearing the exchanges between myself and your counsel at the plea hearing, you have developed some insight into the consequences of your behaviour upon your victims.

[4]Paragraph [29], page 5 of Exhibit 1

[5](Ibid) paragraph [17]

21I note from Mr Cummins’ report that you were never personally declared bankrupt.  On enquiring of your counsel, I was told that ten other homes were never completed by you, but the Court was never advised as to any other consequences that flowed from your company going into liquidation. I do note that your history to Mr Cummins mentioned paying creditors $150,000 after selling an investment property.[6]  Needless to say, you are to be sentenced only in relation to the two charges before the Court. Although you claimed, via your solicitor, that you had some savings and intended to pay back around $60,000 to your victims in 2023, this never eventuated “due to your current financial circumstances.” [7]

[6]Exhibit “1” p. 4 para 22.

[7]Email to Judge Hogan’s chambers from Mr Cheenam Mak, solicitor, dated 16 February 2024 (part of Exhibit “11”).

22You are entitled to a discount on the sentence which would otherwise have been imposed because you pleaded guilty.  Your pleas could not be characterised as early pleas of guilty. Nevertheless, you have saved the victims from, again, having to be cross-examined, and have spared the time and cost of a trial, so your pleas have utilitarian value.  According to the principle in Worboyes v R,[8] there is some added modest utilitarian value to your pleas of guilty by reason of the fact that, as at the date that you entered such pleas (21 July 2023), the Court was still recovering from the backlog of work created by restrictions during the COVID-19 pandemic. Thus, you did not add an extra trial to the busy criminal trial lists in this court.

[8][2021] VSCA 169

23Following your company being placed in liquidation in May 2019, you obtained employment as a project manager and supervisor in New South Wales on 1 July 2019 with Bathla Group Pty Ltd.  You told Mr Cummins that this company is a very big home builder in New South Wales.  You continued that work up until recently, which meant that you lived away from your family for extensive periods, only returning to be with them once or twice per month for a weekend.  Whilst you were working in New South Wales, on 21 November 2019, your wife and two of your three daughters were at home and were the subject of an alarming home invasion by five masked intruders who pointed a gun to your wife’s head, made threats, damaged various items in the home and stole jewellery, money, wallets and a car, and later tried to transfer money from family bank accounts.  Apparently the alleged perpetrators were arrested and charged, but the status of legal proceedings against them is unknown.[9]

[9]Ibid Paragraph 15 Page 3 of Exhibit “1”

24Your wife and two daughters who were at home have suffered significant adverse psychological consequences from this terrifying crime, and your third daughter, who was called to attend the home immediately afterwards, has also suffered vicarious trauma.  Reports relating to counselling of your three daughters and wife  were tendered.[10]  I have no doubt that they have suffered a great deal from this violent, intimidating crime.

[10]Exhibits “5”, “6”, “7” and “8”.

25I also accept that you were very alarmed when you heard about it and have suffered some vicarious trauma. You apparently attended six sessions of counselling with Mr Nick Batty, psychologist. A report from him dated 8 March 2021[11] noted that you had symptoms of Post-Traumatic Stress Disorder relating to what had occurred at your home when your wife and two daughters were present and, at that stage, you met the full DSM-5 diagnostic criteria for Post-Traumatic Stress Disorder with a mild/moderate presentation. Mr Batty’s clinical notes for the counselling sessions held between 26 February 2021 and 2 July 2021 were tendered.[12]  At the last counselling session, over two and a half years ago, you reported feeling stable and self-managing strategies to deal with your symptoms. Sessions were then ceased, with a note that you were to contact Mr Batty if you wished to resume treatment.  This has not occurred.

[11]Exhibit “2”

[12]Exhibit “3”

26When Mr Cummins assessed you in October last year, he took a history that you had intermittently experienced symptoms of anxiety and depression over many months leading up to and subsequent to your company being placed in liquidation in May 2019, and that those symptoms had been exacerbated following the home invasion on 21 November 2019, and were further exacerbated when you were interviewed by police on 2 April 2021.  He considered that you had intermittently been suffering from symptoms of a Major Depressive Disorder of moderate severity, with associated features of traumatisation in relation to the financial and trading difficulties experienced by your company, and the sequalae to that situation.  Mr Cummins did not express the view that, currently, you are suffering from all of the relevant diagnostic criteria of Post-Traumatic Stress Disorder. You have not found it necessary to attend any counselling since mid 2021 and have managed to work full-time interstate until very recently. Your counsel stated that you expect to be re-employed by the Bathlor Group when they commence building operations in Victoria soon.

27A recent assessment was conducted by the Mental Health Advice and Response Service whilst you were being assessed for suitability for a Community Correction Order on 16 February 2024.[13] A report authored by Gregory Lane, Registered Nurse, noted that you now present as relatively stable in your mental state.  He assessed you as having a mild mental health problem and recommended that assessment or treatment of your mental health be made a condition of a Community Correction Order in the event that the court considered it appropriate.  He considered that your current mental state would not impact upon your ability to engage in a Community Correction Order.

[13]Part of Exhibit “C”.

28Mr Cummins expressed the view that it would be more onerous for you to be incarcerated because you would not be able to pay the mortgage which you and your wife are now sharing and which you know that your wife would not be able to pay without your assistance. He also opined that, should you be incarcerated, your mental health would most probably deteriorate because you would be concerned that the family home would be lost. Whilst financial hardship is a common consequence of criminal offending which results in a sentence of imprisonment, the prosecution has not taken issue with the applicability of Principles 5 and 6 in R v Verdins.[14] Accordingly, I take into account that your symptoms of depression, anxiety and PTSD would make serving a term of imprisonment more onerous for you than a person without such symptoms and the risk that such conditions may worsen if you are incarcerated.

[14][2007] VSCA 102.

29Tendered as Exhibit “9” were three character references.  One was from Mr Gowriswaran Somasunthara Iyer.  This gentleman is a Hindu priest who has known you for several years since he was the priest at the Vinayagar Hindu temple in The Basin.  He noted that you and your family were attendees at the temple and at his home. In 2013, you had donated over $75,000 to complete constructions at the temple and also built his family home.  Another reference from Dr Raman Singh, professor at Monash University, dated 25 May 2023, states that you built three townhouses for him and he found you to be polite, sincere and helpful.  He noted that there was an unexpected problem occasioning additional cost with a new water supply line to the properties and you went out of your way to give him support by using your company’s funds to enable the work to continue and completed the job at cost, without charging him any additional fee.  He stated that you are a person basically of good character and human values.  The third reference was from Mr John Di Britto, who is a marriage celebrant and religious minister at Bethel New Life Christian Fellowship, an Assembly of God church in Dandenong.  The reference is undated, but states that he has known you since 2009 because he approached you to modify a factory to become a place of religious worship.  He found you to be of good character and committed and loyal. You completed the project successfully, following which you constructed two homes for church members.

30Also tendered on your behalf were a number of receipts for donations or sponsorships over a period from 15 November 2011 to 3 July 2018.  One of the documents included in this exhibit[15] is a letter from yourself detailing the work that you did at Vinayagar Hindu temple.  The other documents refer to various donations to charities or sponsorships of community events.

[15]Exhibit “10”.

31Whilst there is no doubt that your $75,000 contribution to the Hindu Temple by way of your building works in 2013 was significant, some of the other donations which you have made over the six or so years between 2011 and 2018 involve sponsorships which came with attendant benefits of advertising and promotion of your business.  This was the case with the $660 payment to the Blue Light Magazine in 2012.[16] Also, $10,000 paid by you to support the Melbourne Super Singer 2015 Concert involved, not only promotion of your company as a major sponsor, but the provision of 24 free tickets valued at $100 each.[17] Further, the $3,000 paid for the Ilam Thuliar 2017 Music Night, involved a one minute video advertisement of your company, (to be shown during the concert with no distractions), a double page advertisement in a brochure which was to be given to each family attending the event, banners inside the canteen, four complimentary adult tickets in the front three rows and a mention in the vote of thanks.[18] Thus, although you have been prepared to assist community projects, this has not always involved pure altruism and, without being appraised of your income over this period it is difficult to assess the extent of your generosity in context.

[16]Document dated 14 September 2012 forming part of Exhibit “10”

[17]Document dated 10 April 2015 authored by Anton Mahadeva forming part of Exhibit “9”

[18]Document dated 18 June 2017 signed by Thillai Thangarajah

32At the plea hearing on 15 February 2024, the prosecutor, Mr Cameron, submitted that the only appropriate sentence was a term of imprisonment in excess of 12 months and that a combination sentence was not within range.  No argument was put in support of this submission that the sentence of last resort was applicable.

33Your counsel submitted that a Community Correction Order is the appropriate sentence, noting in particular your prior good character, lack of subsequent offending, pleas of guilty, support from your wife and children and other members of the community who speak highly of you, your good work record including the hardship of trying to repair your financial position by working interstate, and your psychological condition exacerbated by the aggravated burglary committed at your home in your absence, together with the applicability of principles 5 and 6 in Verdins case.

34Whilst I have expressed my views about whether you have true remorse, I have no doubt that you are ashamed and embarrassed by your offending and there is no reason to consider that you would be likely, again, to engage in such dishonesty. The material before the court shows that, despite your dishonest and dishonourable offending against your victims, you do have some positive character traits, a supportive, functioning and loving family, an ethic of hard work, and evidence of community mindedness. I consider that your prospects of rehabilitation are good and you have been assessed as suitable for a Community Correction Order.

35Whilst denunciation and general deterrence are important sentencing considerations in matters of this type, after carefully weighing up the material before me I cannot be satisfied that the sentence of last resort, a term of imprisonment, is appropriate in this case.  I consider that the relevant sentencing objectives can be met by a Community Correction Order with special conditions of performance of unpaid community work, along with assessment and treatment for mental health. Overall, this seems to me to be an appropriate and proportionate sentencing disposition.

36You have had plenty of time since 2019 to attend counselling but have not done so for some time and I note that the most recent assessment done in conjunction with your assessment for a Community Correction Order finds your condition to be mild.  Thus, although I consider it appropriate that you be assessed for the need for treatment, I do not propose to order that any hours spent in counselling or other treatment may be deducted from the component of unpaid community work which I intend to impose.  The unpaid community work is the punitive aspect of this Community Correction Order.

37Mr Manmatharajah, I am not able to make a Community Correction Order unless you consent to it.  You also need to understand that, in the event that I do make a Community Correction Order, if you breach that by non-compliance with conditions or further offending within the period of the Order, then contravention proceedings will be instituted and you will be bought back before the court.  Should that occur, the charge of contravening a Community Correction Order, in itself, carries a maximum penalty of three months’ imprisonment. There is also a risk that the Community Correction Order that I propose to make for this offending would be set aside and you would be resentenced to a term of imprisonment.  Do you understand what I have just said to you?

OFFENDER:  Yes.

HER HONOUR: Are you prepared, with that understanding, to agree to a Community Correction Order being made by this court?

OFFENDER:  Yes.

38On Charges 1 and 2 you are convicted and sentenced to an aggregate sentence to undertake a Community Correction Order for a period of three years.  The terms of that Order are as follows:

(a)   you must not commit whether in or outside Victoria during the period of the Order an offence punishable by imprisonment;

(b)   you must comply with any obligations or requirement prescribed by the regulations;

(c)   you must report to and receive visits from the Secretary during the period of the Order;

(d)   you must report to the Community Corrections Centre specified in the Order within two clear working days after the Order coming into force;

(e)   you must notify the Secretary of any change of address or employment within two clear working days after the change;

(f)    you must not leave Victoria except with the permission either generally or in relation to a particular case of the Secretary;

(g)   you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the Order.

39In addition, the following special conditions apply:

(i)you must undertake 300 hours of unpaid community work over the period of the Order;

(ii)you must undergo any mental health assessment and treatment that is recommended by the Secretary.

HER HONOUR: Mr Manmatharajah, do you understand that the length of the Order is three years with the terms and conditions which I have just read out?

OFFENDER:  Yes.

HER HONOUR: Do you agree to comply with the Order which contains those terms and conditions for the period of three years?

OFFENDER:  “Yes”.

40Pursuant to 6AAA of Sentencing Act I state that, had it not been for your pleas of guilty the total effective sentence imposed would have been 15 months’ imprisonment with a non-parole period of 9 months.

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