Director of Public Prosecutions v McKenzie
[2013] VCC 1310
•29 July 2013
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-13-00100
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| COLIN DAVID MCKENZIE |
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JUDGE: | HER HONOUR JUDGE PATRICK | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 29 July 2013 | |
CASE MAY BE CITED AS: | DPP v. McKenzie | |
MEDIUM NEUTRAL CITATION: | [2013] VCC 1310 | |
REASONS FOR SENTENCE
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | |
| For the Accused | Ms C. Gwynn |
HER HONOUR:
1 Colin David McKenzie, you have pleaded guilty on Indictment B12680647 to 16 charges of obtaining financial advantage by deception, four charges of theft and two charges of falsification of documents. You have also pleaded guilty on Indictment B12680647.A to one further charge of obtaining financial advantage by deception. The maximum penalty for each charge is 10 years' imprisonment.
2 The prosecution sought orders for compensation and a certificate pursuant to section 89F of the Sentencing Act 1991 in respect of Charge 17 on Indictment B12680647. The making of the compensation orders was not opposed.
3 The circumstances of your offending are set out in a Summary of Prosecution Opening for each Indictment which were tendered as Exhibit A and Exhibit B. In brief the circumstances of the Charges on Indictment B12680647 are as follows. You had been a car yard owner in the past. From 2000 you had worked as a car broker. At the time of these offences you had an arrangement with the owner of Regency Motors of Woori Yallock to use Regency Motors’ bank account at the NAB for the private sale of motor vehicles. The owner had agreed to this arrangement because you provided him with a mechanical repair business. You had a similar arrangement with Jim Cree Motors.
4 In October 2006 you asked an accountant friend of 20 years to help arrange finance for a vehicle for your use. You asked him to finance the purchase as you were having financial difficulties but said that you would make all the payments. You produced a false Regency Motors used vehicle tax invoice for a Nissan Patrol. In fact, the vehicle had never been sold by Regency Motors but had been purchased through you by a friend of yours of 30 years. As a result of the false invoice, Macquarie Leasing financed the chattel mortgage of $22,800 on the Nissan Patrol which was paid into Regency Motors’ bank account. $22,300 of that amount was transferred to your personal bank account. This is the basis of Charge 1 of obtaining financial advantage by deception.
5 There are 15 further charges of obtaining financial advantage by deception that relate to similar offending between 2006 and 2011. In each case you obtained funds by organising a chattel mortgage on a vehicle using false documentation and taking some or all of the funds provided by the lender.
6 Charge 2 relates to the provision of a vehicle by you to your former wife in lieu of maintenance. You registered the vehicle in her name and took out a chattel mortgage of $28,900 from the Westpac Bank in her name. You forged her name on the loan documents and provided false documents including a false invoice to show the vehicle had been sold by Regency Motors which it had not. Westpac paid loan money into Regency Motors account. $19,390 of that amount was transferred from the Regency Motors NAB account to your personal Bendigo Bank account.
7 Charge 3 relates to a new vehicle ordered by a friend through you. You received a commission for organising this sale. The vehicle was registered to your friend whom you had known for 30 years. You took out a chattel mortgage from Esanda Finance on the vehicle, providing a false tax invoice from Regency Motors that stated that you had purchased the vehicle. Regency Motors had never owned or sold the vehicle. $27,856.30 was transferred from the Regency Motors’ account to your personal account.
8 Charge 4 relates to a new vehicle that you ordered for a person and registered in his name. You provided a false tax invoice from Regency Motors to Westpac Bank stating that your ex-wife had purchased the vehicle and forged her signature on the chattel mortgage loan documents. The mortgage was for the sum of $36,890. $34,495 of that amount was transferred from the Regency Motors account to your personal account.
9 Charge 5 relates to a chattel mortgage for $36,000 that you took out in your own name with Westpac Bank on a vehicle purchased on behalf of another friend of 37 years. You again provided false information on the loan documents including a false statement that the vehicle was being purchased from Regency Motors. $29,018 was paid to Regency Motors and then transferred to your personal account.
10 Charge 6 relates to a chattel mortgage for $31,500 that you took out in your own name with Esanda Finance on a vehicle. Again you provided a false invoice from Regency Motors this time to a mortgage broker. The vehicle was registered to another person. You were never in possession of this vehicle and it was not sold to you. $14,000 of the loan amount was transferred from the Regency Motors NAB account to your personal account.
11 Charge 7 relates to a chattel mortgage you took out in your own name with Esanda Finance on another vehicle. Again you provided to the mortgage broker a false invoice from Regency Motors. You were never in possession of this vehicle and it was not sold to you. $28,856 was transferred from the Regency Motors’ account to your personal account.
12 Charge 8 relates to a vehicle that you acquired in October 2008. You provided a false Personal Statement of Assets and Liabilities to Westpac Bank and obtained a chattel mortgage for $8975. You falsely stated that the vehicle had been purchased from Regency Motors. $8979 was transferred from the Regency Motors account to your personal account.
13 Charge 9 relates to a chattel mortgage for $37,286.40 that you took out with Esanda Finance on another vehicle which was the same vehicle as in Charge 6. As well as falsifying a tax invoice from Jim Cree Motors for the amount of $36,930 for the vehicle, you also falsely stated to Esanda Finance that there was a trade-in of $24,927.50 on the vehicle transaction. An amount of $12,002.50 was transferred to the bank account of Jim Cree Motors and then to your personal account
14 Charge 10 relates to a chattel mortgage on a vehicle you took out in the name of the same person whose name you used in Charge 5. You arranged this purchase from Echuca Toyota on your friend’s behalf and the vehicle was registered in his name. You falsified an invoice from Jim Cree Motors. The amount of $29,400 from the chattel mortgage was transferred from the account of Jim Cree Motors to your personal account.
15 Charge 11 relates to a chattel mortgage on a vehicle that you arranged for a friend of over 40 years to take out on your behalf with Esanda Finance. The vehicle was still owned by another friend. You provided a false Regency Motors tax invoice to Esanda Finance which falsely stated that your friend had purchased the vehicle from Regency Motors for $38,412. Esanda paid $18,500 into the Regency Motors’ account and the same amount was then transferred into your personal account.
16 Both Charges 12 and 13 are charges of Theft. These charges relate to the purchase of a vehicle valued at $155,000 arranged by you on behalf of two people who paid you a $20,000 deposit. The purchase was to be arranged through Colin Watson Motors and you were to arrange finance through a broker. Finance was provided by Macquarie Leasing for $187,000. The purchasers had to cancel the contract and you obtained a letter signed by one of them authorising you to act on their behalf regarding the cancellation of the contract. Colin Watson Motors resold the vehicle at a loss of $28,000 to your client. You signed a deed of release on your client’s behalf.
17 Believing that the money would be returned to your client, Colin Watson Motors paid $42,000 into your bank account on 13 August. On 2 September Colin Watson Motors transferred the balance of the transaction of $70,000 to your account on behalf of your client. You transferred these amounts into your personal account on the same day they were deposited.
18 Colin Watson Motors had sent a fax confirming the amount of the refund to your client’s business. The practice manager of that business found that the refund had not been received and asked you about it. You made various false statements to the business manager to avoid detection. Ultimately, Macquarie made demand on your client for payment of the outstanding sum on the chattel mortgage of $209,029.26.
19 Charges 14, 15 and 16 are again charges of obtaining financial advantage by deception. In particular, Charge 14 relates to unauthorised Bank of Queensland finance taken out on a vehicle purchased by you on behalf of a friend. You falsified documents once again including an invoice stating that you had bought the vehicle from Regency Motors. The Bank of Queensland paid Regency Motors $34,950 which was transferred to your personal bank account.
20 Charge 15 relates to a car purchased and registered by a friend of 20 years. Prior to the delivery of the car you showed the vehicle to a second friend of 20 years. You asked this second friend to finance the purchase of the vehicle on your behalf so you could on-sell it to someone overseas. This friend travelled interstate without finalising the requested finance. You signed the chattel mortgage documents in your second friend’s name and provided Macquarie Leasing with false documents including a false invoice from Regency Motors. As a result Macquarie paid $32,000 to Regency Motors and $31,500 was transferred to your personal bank account.
21 Charge 16 relates to a chattel mortgage taken out for you from Esanda Finance by a friend in order to assist you to purchase a vehicle. You falsified documents once again including a tax invoice from Regency Motors. The vehicle itemised on the tax invoice did not belong to Regency Motors but was a vehicle you had previously purchased for another client of yours. $37,900 was paid to Regency Motors then transferred to your personal bank account.
22 Charge 17 is a charge of falsification of documents and is closely related to Charge 18, another charge of obtaining financial advantage by deception. The circumstances of this offending are as follows. Again you purchased a vehicle on behalf of a friend. This friend is the same friend from Charge 5 (whom I shall call friend A). After purchase, the car was registered and delivered to friend A. You then asked another long-time friend (friend B) to finance a purchase of a vehicle on your behalf from Esanda Finance. You said that you would repay him over 12 months. You told him that you had lost money in the Queensland floods and were waiting for an insurance payout. Friend B agreed to help you.
23 You then approached TKO Auto Sales saying that you wished to sell a car that you owned to a client (friend B) but that the client needed finance. You asked that the car be transferred to TKO Auto Sales and then sold on to your client (friend B). You then borrowed the car belonging to friend A for 2 hours saying that you were selling a similar car to another client and you drove it to TKO Auto Sales to show it to them. You brought with you a falsified VicRoads transfer transferring the ownership of friend A’s vehicle to TKO Auto Sales. This transfer was lodged with VicRoads. Finance was arranged for friend B for $29,556.60. TKO Auto Sales then transferred $21,146.80 into your personal bank account. Friend B requested repayment of the debt and you repaid $1800 in cash and $2000 by cheque. That cheque was subsequently dishonoured.
24 Charge 19 is a further charge of theft and relates to a sale you were asked to make on behalf of another long time friend. Your friend gave you the vehicle and then did not hear anything from you. When he was finally able to speak with you, you told him that you had sold the car interstate and you would transfer the funds to his account. You did not. Your friend did not hear further from you.
25 Charge 20 is a charge of falsification of documents and Charge 21 is a charge of obtaining financial advantage by deception. They are closely linked. The circumstances of these two charges are as follows. You asked another long time friend (friend C) for help obtaining finance to purchase a vehicle telling him that you had a vehicle that was damaged in the Queensland floods and that you were overdrawn at the bank. Your friend agreed to provide a signature on a contract with Esanda Finance for the new vehicle. You told him that you would make all of the loan repayments. You then asked another long time friend (friend D) if you could borrow a vehicle that you had previously purchased for him on his behalf as you had another client interested in a similar vehicle. You took the vehicle to friend C and told him that you had purchased the vehicle. Friend C signed the Esanda Finance document that day as previously agreed. Esanda Finance transferred $18,800 to your Bendigo Bank account in the name of Camron Transport Pty Ltd. Some time later friend D found that his car was no longer registered in his name but had been registered in the name of Camron Transport Pty Ltd.
26 Charge 22 relates to the charge of theft. You told a business acquaintance that you had a buyer for his vehicle. With permission you sold the vehicle to a person for $3500 and promised your acquaintance and the purchaser that you would make the necessary VicRoads transfer of registration. The registration was about to expire at this time. The purchaser was intercepted by police at a later date and informed that the registration had neither been renewed nor transferred. You did not pay any money to your acquaintance and did not return his calls.
27 In respect of Indictment B12680647 the total amount of financial advantage obtained on 16 charges of obtaining financial advantage by deception is $484,187.60. You retained the vast bulk of those funds.
28 The charge of obtaining financial advantage by deception in Indictment B12680647.A involves you dishonestly obtaining the provision of a loan facility of $43,990 from Macquarie Leasing Pty Ltd. This loan relates to a car which you purchased on behalf of old friends who wanted a car for their daughter. You found a suitable car which had a purchase price of $26,200. You arranged finance for the purchase through a broker. You provided two false invoices on Jim Cree Motors' letterhead to Macquarie Leasing describing the vehicle as a high performance model with a purchase price of $37,990. An invoice included an additional amount of $6000 to cover a loss on a trade-in vehicle.
29 In the invoices, you falsely stated that a previous car of the friends’ daughter had a trade-in value of $24,846.73, when the vehicle was actually valued at $14,250. You obtained the finance and you took a bank cheque for the purchase price of $26,200 and paid for the car. Macquarie Leasing paid the balance of the amount financed of $13,143.27 into Jim Cree Motors’ ANZ account. On 25 June 2009 $12,643.27 of that amount was transferred into your personal Bendigo Bank account.
30 Colin McKenzie, in sentencing you I have taken into account your personal circumstances. You are now 66 years old. You have a background as a very successful business man. You have owned successful car yards and enjoyed a wealthy lifestyle. Since 2000, you have been working as a car broker. You have been married twice and have an amicable relationship with both ex-wives. You were divorced from your second wife in 2000 and began attending poker machine venues. Gambling on poker machines escalated until it developed into an addiction.
31 Your counsel relied on a number of matters in mitigation of sentence including
a) Your recognition in February 2011 that matters were catching up with you and contact was made with police at that time acknowledging your gambling problem;
b) Your attempts in March/April 2011 to come to an arrangement about your offending;
c) Your full and frank admissions to the police in September 2011;
d) Your attempts to repay amounts obtained dishonestly;
e) Your remorse;
f) Your plea of guilty made at an early stage;
g) Your lack of prior criminal history and previous life demonstrating good character
h) Your efforts at rehabilitation and good if not excellent prospects of rehabilitation;
i) The loss of standing you have suffered amongst friends, family and community;
j) The loss of your employment and income;
k) The diagnosis of pathological gambling disorder;
l) The diagnosis of current dysthymic disorder;
m) The delay since the offending.
32 Your counsel submitted that specific deterrence had already been achieved and that the range proposed by the Prosecution was not unreasonable. In view of matters of mitigation, your history and current health your counsel submitted that any sentence of imprisonment imposed should involve a shorter non-parole period.
33 The Prosecution addressed aspects of your offending which were said to be aggravating features. The Prosecution submitted that your pathological gambling disorder in itself should not result in an appreciable reduction of sentence. The Prosecutor also expressed caution in respect of your prospects of rehabilitation.
34 The Prosecutor accepted that there were factors operating in mitigation of sentence and submitted a non-parole period should be set which would reflect the offending, your age and state of health and the previous long period with no offending.
35 The Prosecutor’s instructions were that the appropriate sentence would be a sentence of imprisonment in the range of two to three years with a non-parole period of nine months to 18 months.
36 Your offending is clearly serious. You exploited and betrayed the trust and good nature of people you had known for a long time. You deceived people and finance companies and used them to achieve your aim of obtaining money for yourself. You stole from old friends and a business acquaintance. You falsified documents on numerous occasions. Your offending went on over a five year period and was calculated and sophisticated. You obtained a large amount of money by dishonest means. Approximately $200,000 was repaid to the finance companies which reduces the harm caused to those entities.
37 In February 2011 you contacted police as a result of a complaint by one of your friends. You contacted police and admitted over the phone that you had ‘done a fraud’ and no longer had the money. I accept that at that stage you felt some remorse and acknowledged a gambling problem but the remorse and insight was extremely limited as you continued to offend. You attempted to make an arrangement with Esanda but did not stop offending including against Esanda (Charge 22). That attempt does not demonstrate remorse in those circumstances. It appears that your offending ceased in September 2011 because you were investigated by police.
38 When interviewed by police you made significant admissions. I consider your cooperation at that stage is an indication of genuine remorse. That remorse is further demonstrated by your plea of guilty at an early stage to all the charges except one. You have expressed a wish to make written apologies. I have taken your remorse into account in mitigation of sentence.
39 Some friends were cross-examined in the contested committal on one charge which must have been distressing. Despite that, you are entitled to a significant reduction in sentence for your plea of guilty for its value in saving the expense, inconvenience and trauma of a trial in addition to it being an expression of remorse.
40 You are also entitled to have your lack of prior criminal history taken into account in mitigation of sentence. There is no history of offending until this offending. Up to that point you have lead a productive life contributing to the community including in a voluntary capacity with various organisations. The personal references tendered attest to your previous good character. Sadly your previous good reputation was what enabled you to obtain the trust and co-operation of friends and business acquaintances.
41 I consider that you have good prospects for rehabilitation. I accept that your offending started because you needed money for gambling or to pay living expenses because of your gambling losses. Since being interviewed by police you have taken steps to deal with your gambling addiction and depression. You have signed a deed of self-exclusion which excludes you from attending gambling venues. You have engaged in problem gambling counselling. You have also engaged in counselling in relation to your depression. Your family and friends are now aware of your gambling behaviour. I accept the opinion of Mr Jeffrey Cummins, psychologist set out in his report dated 22 April 2013, that persons in your situation are much less likely to resume gambling once the gambling is known to family and friends. You say you are no longer gambling. You appear to have some insight into the nature of your gambling addiction. You have engaged in gambling counselling in respect of your gambling whilst you have been in custody. You have formed a new close personal relationship. Those matters all support a conclusion that you have good prospects for rehabilitation.
42 You have not been able to obtain employment and have suffered considerable embarrassment and shame as a result of your offending being made public. Some family members no longer have contact with you and you have lost many significant friendships. You have had a high profile. You have been made aware of the disapproval of people in your community. You went from being a successful and well respected businessman with the prospect of enjoying a relatively luxurious lifestyle in your later years with a significant friendship network to a person with little income living at times in transient accommodation reviled by many friends, people in the community and some family members. This is a tragic example of what can befall those who continue gambling when they cannot afford to do so and decide to fund their gambling by cheating others. You brought all this onto yourself by your wrongdoing. I do take into account these consequences of your wrongdoing as being relevant to the issue of the need for specific deterrence. What has happened to you is nothing like the types of extra-curial punishment referred to in Chaplin [2010] VSCA 145 which was relied on by your counsel. I consider that the degree of punishment to be imposed may be reduced because of these consequences but only to a very slight degree.
43 In addition to Mr Cummins’ report a further report was tendered from Dr Hannah McMillan, psychiatry registrar, dated 12 February 2012. Dr McMillan reports that you said you had been diagnosed with depression in November 2010. She reports that, at the time she assessed you, you were not significantly depressed but were highly vulnerable to deterioration in mood.
44 Mr Cummins’ opinion is that you have suffered from a dysthymic disorder – a depressive disorder one level of severity below a major depressive disorder – since about 1988 or 1990, which was not diagnosed until 2010. His opinion is that the depressive disorder would have resulted in your perception, judgement and reasoning being compromised but not to the extent that you did not know what you were doing was wrong. Mr Cummins does not explain further to what extent depression compromises these matters and the connection between that level of compromise and the offending or your gambling addiction. He goes on to say you could not resist the urge to gamble because of your gambling addiction. Mr Cummins does say that your dysthymic disorder would make imprisonment more difficult for you.
45 I have considered the application of the principles set out in Verdins (2007) 16 VR 269 as submitted by your counsel. I do not consider that the effect of your depression affected your mental capacity such that it reduces your moral culpability for this offending. You knew what you were doing was wrong. You went about your offending over a long period of time in a very deliberate and calculating way. You are a person of considerable intelligence and capacity but you did not seek professional assistance until very late in the day and then kept offending. Nor do I consider general deterrence or specific deterrence ought be moderated as a sentencing considerations because of your depression.
46 I accept your gambling addiction provides a motive and explanation for your offending. I have considered the application of Verdins principles in relation to this and the Court of Appeal decision in Grossi [2008] VSCA 51 to which I was referred. It is clear that each case must be considered in the light of its own circumstances but there is considerable relevance to your situation in the remarks by Redlich JA in Grossi at paragraphs 56 and 57. His Honour referred to common features in the offending of persons with a pathological gambling disorder. Those features include offending over a long period, a long term chase to recoup losses, a degree of sophistication, deviousness and careful planning and breaches of trust. All of those features were present in your case. You repeatedly chose to fund your gambling by dishonest means. I do not consider that your gambling addiction reduces your moral culpability or results in moderation of the application of consideration general deterrence in your sentence.
47 I do take into account that a sentence of imprisonment will weigh more heavily on you because of your depression. I also take into account in moderation of sentence your current health problems of diabetes and high blood pressure although only to a very minor degree as these conditions are able to be controlled by oral medication according to material tendered on your behalf. I have also taken into account to a minor degree the concern you will undoubtedly feel in relation to your friend with whom you are in a relationship and who is in ill health.
48 The delay in this case appears to have arisen because you wished to contest the committal and then go to trial in relation to the charge in the second indictment. That is your right but in those circumstances the delay does not seem unusual. I accept that you have had the matter hanging over your head for some time and that it is of particular relevance that you have not re-offended in that time.
49 The seriousness of your offending warrants a sentence of imprisonment for the purposes of denunciation, just punishment and general deterrence. I accept that specific deterrence has been achieved to a considerable extent but consider that specific deterrence remains a sentencing consideration, albeit to a limited extent. You must be given a warning that if you offend again you will face very serious consequences.
50 In fixing the individual sentences and amount of cumulation, I have taken into account the principles of totality and proportionality. I have also taken into consideration the different types of offending and the different victims affected.
51 In fixing the appropriate non-parole period, I have taken into account that this will be your first sentence of imprisonment, your age, your depressive disorder, your previous good character and your good prospects of rehabilitation.
52 The individual sentences I am imposing are set out in a Table. You are convicted and sentenced to a term of imprisonment on each charge as follows:
| Indictment B12680647 | Offence | Sentence of imprisonment | Cumulation |
| Charge 1 | Financial advantage by deception | 9 months | |
| Charge 2 | Financial advantage by deception | 9 months | |
| Charge 3 | Financial advantage by deception | 9 months | |
| Charge 4 | Financial advantage by deception | 12 months | 2 months |
| Charge 5 | Financial advantage by deception | 12 months | 2 months |
| Charge 6 | Financial advantage by deception | 6 months | |
| Charge 7 | Financial advantage by deception | 9 months | |
| Charge 8 | Financial advantage by deception | 5 months | |
| Charge 9 | Financial advantage by deception | 12 months | 2 months |
| Charge 10 | Financial advantage by deception | 10 months | |
| Charge 11 | Financial advantage by deception | 12 months | 2 months |
| Charge 12 | Theft | 12 months | |
| Charge 13 | Theft | 18 months | BASE |
| Charge 14 | Financial advantage by deception | 12 months | 2 months |
| Charge 15 | Financial advantage by deception | 12 months | 2 months |
| Charge 16 | Financial advantage by deception | 12 months | 2 months |
| Charge 17 | Falsification of documents | 3 months | |
| Charge 18 | Financial advantage by deception | 9 months | 1 month |
| Charge 19 | Theft | 4 months | 1 month |
| Charge 20 | Falsification of documents | 3 months | |
| Charge 21 | Financial advantage by deception | 9 months | 1 month |
| Charge 22 | Theft | 4 months | 1 month |
| Indictment B12680647.A Charge 1 | Financial advantage by deception | 12 months |
53 In respect of Indictment B12680647 the sentence on Charge 13 is the base sentence. One month of each of the sentences on Charges 18,19, 21 and 22 and two months of each of the sentences on Charges 4,5,9,11,14,15 and 16 are to be served cumulatively on each other and on the sentence on Charge 13. The sentences on Charges 1,2,3,6,7,8,10,12,17 and 20 are to be served concurrently with the sentence on Charge 13.
54 In respect of Charge 19, your driver's licence is suspended for a period of 12 months.
55 The total effective sentence is 36 months' imprisonment.
56 I fix 16 months as the period you are required to serve before being eligible for release on parole.
57 But for your plea of guilty to the charges on that Indictment I would have sentenced you to a term of imprisonment of 54 months with a non-parole period of 36 months.
58 In respect of Indictment B12680647.A, the sentence is to be served concurrently with the sentences on Indictment B12680647.
59 But for your plea of guilty to the charge on that Indictment, I would have sentenced you to a term of imprisonment of 18 months to be served concurrently with the sentence on Indictment B12680647.
60 I declare that you have served 62 days of these sentences by way of pre-sentence detention to be deducted administratively.
61 I have made the orders for compensation sought.
62 I grant the application for an Identity Crime Certificate in respect of Charge 17 on Indictment B12680647.
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