Director of Public Prosecutions v Mendoza-Cortez

[2016] VCC 1026

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 15-01592

DIRECTOR OF PUBLIC PROSECUTIONS

v

JOANNE MENDOZA-CORTEZ

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	18 March 2016
DATE OF SENTENCE:	18 July 2016
CASE MAY BE CITED AS:	DPP v Mendoza-Cortez
MEDIUM NEUTRAL CITATION:	[2016] VCC 1026

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:             Sentence – Plea of guilty – Obtain property by deception (6) – Obtain financial advantage by deception (5) – Criminal antecedents – Calculated offending – Co-accused – Depression and suicidal ideation

Cases Cited:            Boulton & Ors v The Queen [2104] VSCA 342

Sentence:Convicted and sentenced to Total Effective Sentence of 2 years and 11 months’ imprisonment with a non-parole period of 14 months’ imprisonment – s.6AAA Sentencing Act 1991 declaration made – Ancillary order – Compensation order

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Porceddu	Solicitor for Public Prosecutions
For the Accused	Mr J. Jassar	Melasecca, Zayler and Kelly

HER HONOUR:

1Joanne Mendoza-Cortez, you have pleaded guilty to six charges of obtaining property by deception and five charges of obtaining a financial advantage by deception.

2Each of these offences has a maximum penalty of 10 years’ imprisonment. The maximum penalty reflects the seriousness with which Parliament regards these offences.

3I was told by the Prosecution that between July 2006 and November 2008 you deceived five investors of a total sum of $266,400 by falsely representing that you could provide high returns by purchasing large amounts of stock including perfumes, hair straighteners and clothes and then selling them to various retailers. No such items were purchased or existed. On 5 December 2011 His Honour Judge Maidment, of this Court sentenced you to a total effective sentence of 2 years 9 months’ imprisonment and ordered you to serve 22 months’ imprisonment before becoming eligible for parole. He also made compensation orders in respect of all of the victims. 

4Between 9 November 2007 and 29 August 2008, you, together with co-accused Cherry Payne, using the same modus operandi, convinced Ms Wendy Poynton to invest a total of $333,470 on the basis that these monies would be repaid plus $85,500 interest. On 21 August 2008 Ms Poynton was repaid $16,620, together with $1,100. On 12 September 2008 a $4,000 cash deposit was made to Ms Poynton by Ms Payne.

5The victim in this matter, Ms Wendy Poynton was employed by the Australian Taxation Office in Melbourne commencing work there in 2002.  I was told that Ms Cherry Payne was a work colleague of hers and she therefore was also employed by the Australian Taxation Office, having commenced her employment in 1999. 

6I was told that sometime in 2007, Ms Poynton disclosed to Ms Payne that she had approximately $400,000 in a Term Deposit account which she had received from a recent family law property settlement.  In November 2007, Ms Payne advised Ms Poynton that a friend of hers, referring to you, was involved in a variety of retail business deals where she would purchase large amounts of stock including perfumes, hair straighteners, clothes, socks and then sell the stock in bulk amounts for a profit to various retail department stores including Dimmeys, Hairhouse Warehouse, Strandbags and Sportsmart. She said that you also supplied kit bags to the Department of Defence. 

7Ms Poynton, Ms Payne and you signed a total of (6) six hand written Loan Contract agreements which were dated and detailed the various amounts of money which Ms Poynton loaned to Ms Payne and you in order to finance the apparent proposed business deals plus the amount of interest Ms Poynton would receive. 

Charge 1

8In relation to Charge 1, I was told that on 8 November 2007, Ms Payne called Ms Poynton and asked her for $15,000 and said that the money was for you.  Ms Poynton was told that you had a business deal that needed to be completed the following day and said she had known you all her life, that she trusted you and that you were like a sister to her.

9Ms Poynton agreed to loan Ms Payne $15,000 and told her she would transfer the money on the morning of 9 November 2007.  You then spoke with Ms Poynton and told her that you needed the money in cash and would repay the $15,000 plus $1000 in interest within a fortnight.  Neither you nor Ms Payne specified who the business deal was with.

10To finance this deal, Ms Poynton transferred $15,000 from her Max-I Direct Term Deposit Account the details of which were in the prosecution opening and I will not repeat them here.  But she transferred that sum to her Westpac One Account on 9 November 2007.  Ms Poynton then attended at the Westpac Bank at a branch in Melbourne CBD with Ms Payne and subsequently withdrew the $15,000 which she handed to Ms Payne.

11Later that day, Ms Poynton met with Ms Payne and you.  This was on the afternoon of 9 November 2007.  You met at a café near the workplace of Ms Poynton and Ms Payne where you thanked Ms Poynton for the $15,000. 

Charge 2 and Signing of Loan 1 refers - Hairhouse Warehouse Deal:

12In relation to Charge 2 and the signing of a loan in relation to a Hairhouse Warehouse deal, I was told that on 14 November 2007, Ms Poynton met with Ms Payne and you at the same café near their workplace where you showed Ms Poynton a sample of a GHD Hair Straightener and you told her that Hairhouse Warehouse were going to purchase a large quantity of them.  You asked Ms Poynton to loan you $80,000 in order to purchase a large quantity of these hair straighteners which you would supply to Hairhouse Warehouse.

13You told Ms Poynton that the deal was too good to pass up and Ms Poynton agreed to loan you $80,000 to finance the deal.  You then suggested to her that she should roll over the previous $16,000 which was due to her in two weeks' time being the $15,000 previously loaned plus promised interest and to loan you a further $64,000 for the Hairhouse Warehouse deal.  Both parties agreed and Loan Contract 1 was drafted and signed by Ms Poynton,  Ms Payne and you at this café. 

14Loan Contract 1 stated that you had borrowed a total of $80,000 and it was payable to Ms Poynton on 4 February 2008 with $17,500 interest.  This was made up of the initial $15,000 loan plus promised interest of $1000 plus the $64,000 loan. 

15Later that day, you telephoned Ms Poynton and informed her that the deal with Hairhouse Warehouse had just been finalised and she needed to transfer $40,000 to Ms Payne's account so that the stock could be secured.  You further stated that you would let Ms Poynton know when the remaining $24,000 would be required.

16In order to finance this loan, Ms Poynton transferred $40,000 from her Westpac Max-I Direct Account to her Westpac One Account.  Ms Poynton then attended the Westpac Bank in the CBD of Melbourne with Ms Payne where she withdrew $40,000 from her Westpac One Account and deposited this into Ms Payne's Westpac Bank Account. 

Charge 3 & 4  - Hairhouse Warehouse Deal: ($24,000)

17In relation to Charges 3 and 4, I was told that on 27 November 2007, Ms Poynton was told by  you and Ms Payne that you needed the remaining $24,000 to finalise the Hairhouse Warehouse deal for the GHD Hair Straighteners and that you needed the money in cash that day. Ms Poynton contacted her son Michael Poynton and arranged for him to repay $18,000 he had previously loaned for a personal unrelated matter.  On 27 November 2007, Ms Poynton received a deposit of $18,000 into her Westpac One Account from her son Michael Poynton. 

18Ms Poynton also transferred $6000 from her Westpac Max-I Direct Account to her Westpac One Account and then attended at the Westpac bank Flagstaff branch in Melbourne CBD with Ms Payne.  At this location she withdrew $24,000 cash from her Westpac One Account and Ms Poynton received $12,000 in cash, which she handed to Ms Payne and transferred the remaining $12,000 into Ms Payne's Westpac Bank Account.  This gives rise to Charges 3 and 4.

Charge 5 - Dimmeys Deal:

19In relation to Charge 5, on 4 December 2007, Ms Poynton met with Ms Payne and you at a restaurant in Richmond where she was shown a sample dressing gown which you stated you were purchasing for $30 per item and selling on to Dimmeys for $40 per item.  You asked Ms Poynton for a further loan of $65,000 to purchase numerous dressing gowns to sell to Dimmeys.  Ms Poynton agreed to loan you a further $65,000 and was told by Ms Payne to transfer the money to her account the following day.

20In order to finance this loan, Ms Poynton contacted her ex-husband Ian Laws and arranged for him to transfer $65,000 to Ms Payne's Westpac Bank account.  On 5 December 2007, Mr Laws transferred $65,000 from his National Australia Bank Cheque Account to Ms Payne's Westpac Account.  This transaction was facilitated by a Real Time Gross Settlement Application. 

Charge 6  - Strandbags and Sportsmart Deal:

21In relation to Charge 6, I was told that a meeting was arranged for around 20 January 2008 to discuss the repayment of $97,500 due for the Hairhouse Warehouse deal, Loan 1.  You told Ms Poynton the cheque was not available for collection until after 12 February 2008 and you also mentioned there were further business deals coming up with Strandbags and Sportsmart. Ms Payne told Ms Poynton “This is a really good deal for us.  You can’t say no.”    

22You said that you had other business deals that were due and there was a shortfall of $35,000 which you needed immediately to secure stock for Strandbags and Sportsmart.  You told Ms Poynton she would have to provide another $35,000 as well as roll over her $97,500 due from Loan1 making a total loan of $132,500 and she would receive $22,000 interest.  Ms Payne also told Ms Poynton “We can’t always get good stock.  Sometimes we have to wait months to get good stock.  We have to do this.”

23At this point, Ms Poynton agreed to loan Ms Payne and you a further $35,000 to finance the deal for Strandbags and Sportsmart (Loan 3).  Payne told Ms Poynton to transfer the money to her account and Payne and you would work out where the money had to go. 

24In order to finance this deal, Ms Poynton transferred $35,100 from her Westpac Max-I Direct Account to her Westpac One Account and then Ms Poynton attended at the Westpac branch with Ms Payne where she withdrew $35,000 from her Westpac One Account and gave that money to Ms Payne.

Charge 7 & 8  - Strandbags and Sportsmart Deals:

25In relation to Charges 7 and 8, a further meeting between Ms Poynton, Ms Payne and you took place on about 19 March 2008.  At this meeting, Ms Poynton was advised by Ms Payne and you that orders had been placed with Strandbags and Sportsmart and you had discontinued Nike and Adidas jumpers, tracksuit pants and other sportswear that Sportsmart had agreed to take.  You told Ms Poynton that the stock had to be paid for within 3 days and you needed $150,000 and said that Ms Poynton would be repaid the $150,000 plus $22,000 in interest on 16 July 2008.

26Ms Poynton told you she had only $120,000 and would not be able to finance the full $150,000 loan and you said you would arrange for Kevin Roberts to loan you the $38,000 shortfall.     

27You told Ms Poynton when you received the $80,000 due for the Dimmey’s loan ($80,000) you would repay Mr Roberts the $38,000 and pay Ms Poynton the $42,000 for the Dimmeys dressing gown loan within a week and would arrange the new loan to be drafted.

28Ms Poynton agreed to another loan for what she believed was a business deal with Strandbags and Sportsmart and agreed to loan Ms Payne and you a further $112,000.  In order to finance this loan, Ms Poynton was told by you to transfer $100,000 to Ms Payne and that you needed $12,000 in cash.  The remaining $38,000 would be sourced from Kevin Roberts who you said was your accountant.

29On 20 March 2008, Ms Poynton transferred $12,000 (which gives rise to Charge 7) from her Westpac Max-I Direct Account  to her Westpac One Account and then attended at the Westpac branch she normally attended with Ms Payne where she withdrew $5,000 from her Westpac One Account and handed the $5,000 to Ms Payne.  Later that same day Ms Poynton attended at the Westpac Bank in William Street Melbourne with Ms Payne where she withdrew another $7,000 from her Westpac One Account which she also handed to Ms Payne.

30In order to finance the remaining $100,000 loan, Ms Poynton contacted her ex-husband Ian Laws and arranged for him to transfer $100,000 to Ms Payne.  On 20 March 2008, Mr Laws transferred this sum from his National Australia Bank Cheque Account to Ms Payne's National Australia Bank Account.  This transaction was facilitated by Real Time Gross Settlement Application.

Charge 9  - Akim Pty Ltd Deal:

31In relation to Charge 9, I was told that on 29 July 2008, Ms Poynton, Ms Payne and you met at a café in Melbourne where you discussed Ms Payne's forthcoming trip to the Philippines.  At this meeting you mentioned that you had previously dealt with a sock retailer called Akim Pty Ltd on the odd occasion and you always paid cash to Akim Pty Ltd.  Ms Poynton stated she was not interested in financing any further business deals. 

32You told Ms Poynton she needed $14,320 in cash to finance the deal and promised Ms Poynton she would receive $2300 in interest and be paid $16,620 on 20 August 2008.  Ms Poynton was also requested to provide $1,100 to Ms Payne for her holiday to the Philippines. 

33On 29 July 2008, Ms Poynton agreed to finance the $14,320 business deal with Akim Pty Ltd. In order to finance the business deal with this company, Ms Poynton transferred $14,320 from her Westpac Max-I Direct Account to her Westpac One Account.  Ms Poynton then attended at the Westpac Bank in Melbourne with Ms Payne where she withdrew $14,320 from her Westpac One Account and handed this sum to Ms Payne.

34Over the next few weeks Ms Payne repeatedly told Ms Poynton that money from Loan 4, which was for $172,000, was delayed due to delays at Strandbags and Sportsmart and because one of the signatories was overseas.  Sometime in July 2008, you gave Ms Poynton a copy of an invoice dated 30 July 2008 with a particular number on it which was set out in the opening which was said to be for Akim Pty Ltd for the sum of $16,620.

Poynton received NAB cash cheque for $16,620 from you:

35On 28 August 2008, Ms Poynton met with Ms Payne and you and received a National Australia Bank cash cheque for $16,620 for the Akim sock deal.  She was also asked to give Ms Payne $1,100 as spending money for her trip to the Philippines.  You also said you were picking up further cheques within the next week or so and had to bank the cheques and wait for them to clear.  You also mentioned that you had Nike and Adidas shoes to sell and said that Sportsmart wanted your stock and there was big profit in the deal.  Ms Poynton told you she wasn’t interested in financing any further business deals and was constantly asked to get more money from her son and family in order to finance the business deal.

Charge 10 & 11 - Akim Pty Ltd Deal:

36In relation to Charges 10 and 11, as a result of receiving a cash cheque for $16,620, Ms Poynton felt reassured that she would be receiving the remaining money owed to her.  The following day she banked the cheque into her Westpac One Account and paid Ms Payne $1,100 for her trip to the Philippines.  A few days later, Ms Payne called Ms Poynton and told her that you required a further $17,650 for another sock deal with Akim Pty Ltd and the repayment would be $20,500, which included a profit of $2,900.  Ms Poynton agreed to finance this business deal and the arrangement was for Ms Payne and Ms Poynton to share the profit and the repayment would be made on 22 September 2008 and the money had to be given to Ms Payne in cash. 

37In order to finance the business deal with Akim Pty Ltd, Ms Poynton transferred $15,650 from her Westpac Max-I Direct Account to her Westpac One Account on 25 August 2008.  Ms Poynton then transferred $5000 to Ms Payne's Westpac One Account before attending at the Westpac Bank at  Bourke Street in Melbourne with Ms Payne where she withdrew $10,650 from her Westpac One Account and handed the $10,650 to Ms Payne as well as another $2000.  The transfer of the $5000 gives rise to Charge 11 and the second mentioned transfer of $10,650 and $2000 given to Ms Payne gives rise to Charge 10.   

38A few days later Ms Poynton received a copy of another invoice from you in relation Akim Pty Ltd dated 27 August 2008 with a particular number on it to the value of $20,550.  During this meeting you said that the male that you dealt with in relation to the sock deal wanted to be supplied with more socks and you needed a further $10,500.  Ms Poynton repeated to you that she did not wish to finance any further business deals. 

39You told Ms Poynton if you didn’t place the order for more socks it would delay the payment of $20,550 she was owed and you would lose face.  You told Ms Poynton to call her parents, her son or Ian Laws to get the money and Ms Payne also encouraged her to call her parents, son or Ian Laws to obtain the money from them.

40Sometime after this meeting Ms Poynton began receiving calls at work from both you and Ms Payne asking her to finance the $10,500 sock deal and was told by Ms Payne that they would not be getting their $20,000 as previously promised.

Charge 12 - Akim Pty Ltd Deal:

41In relation to Charge 12, I was told that the following morning being 29 August 2008, Ms Payne told Ms Poynton she needed to find the $10,500.  You  attended Ms Poynton's work and told her the previous transaction for the $20,000 deal may not be repaid and asked her to get the money from her parents.  Ms Payne also called Ms Poynton that day and told her the $10,500 had to be obtained that day and her brother had agreed to give her the $10,500 for the deal but the money was with ING and could not be accessed for 3 days.  Ms Payne then said to Ms Poynton, “If you give me the money I will be able to repay you.  I promise you the money will definitely be in your account by 5 September.”

42Ms Poynton succumbed to the pressure from Ms Payne and you and agreed to finance the $10,500 business deal with Akim Pty Ltd for the supply of socks.  She stressed the money must be repaid by 5 September 2008.  Ms Poynton received an email from Ms Payne on 29 August 2008 acknowledging the fact she borrowed $10,500 from Ms Poynton and she would be repaid this sum plus $500 interest on 5 September 2008.    

43In order to finance this $10,500 loan, Ms Poynton transferred $11,000 from her Westpac Max-I Direct Account to her Westpac One Account  on 29 August 2008 and again attended Westpac branch in Melbourne CBD with Ms Payne and withdrew $10,500 from her Westpac One Account which she gave to Ms Payne.

Dishonoured NAB Cheque 000045:

44After being promised the payment of $10,500 plus $500 interest on 5 September, Ms Poynton checked her bank account in 8 September 2008 and noticed she had not received the $11,000 payment as promised by Ms Payne.  Ms Poynton called Ms Payne at work to enquire why the money had not been transferred to her account and was told by Ms Payne, “The money will be in your account tomorrow.  You have nothing to worry about.”            

45On 9 September 2008, Ms Poynton checked her Westpac One Account  and noticed there had been a deposit made at Bulleen for the amount of $11,010.  On 10 September 2008, Ms Poynton checked her account and noticed the deposit of that sum had been reversed.  That day Ms Poynton made numerous unsuccessful attempts to call both you and Ms Payne and received a letter, NAB Cheque in the business name of JS LMIJ from Westpac Bank dated 9 September 2008.  The letter confirmed that NAB Cheque 00045 in the business name of JS LMIJ, which was a business account held by you, which was made out to Wendy Poynton for $11,010 and dated 6 September 2008, had been reversed due to the payment being stopped. 

46Ms Poynton eventually contacted you and enquired why the cheque  deposited into her account had been stopped.

47You said you did not know how Ms Payne had been in possession of one of your cheques and told Ms Poynton, “Cherry is confused.  I don’t know what she has done.  As far as I knew the money owing to you was coming from her brother.  I will contact Cherry and find out what is going on.  Don’t worry I can get through to her.”

Repayment of $4,000 to POYNTON by PAYNE:

48On 11 September 2008, you arranged to meet Ms Poynton and Ms Payne in Victoria Street Richmond on 12 September to discuss why the cheque in your business's name was stopped but you cancelled the meeting. 

49Ms Poynton called you and was told the meeting was not going ahead because Ms Payne was still at the doctor’s and you were not prepared to meet without Ms Payne being present.  Ms Poynton said to you, “This is not a business partnership between the three of us.  This was never a business venture between the three of us. I lent you the money.”  You replied, “Cherry and I are partners.  I will not meet you until Cherry is present.”

50Ms Poynton's Westpac Bank statement  dated between 22 August 2008 and 24 February 2009 confirms that  a $4000 deposit on 12 September 2008 was made at Bulleen into her Westpac One Account.

Attempts by Poynton to recoup outstanding money owed:

51After numerous unsuccessful efforts to recoup outstanding monies owed to her, Ms Poynton engaged a solicitor to act on her behalf in an attempt to recover money owed to her, that is the sum of $333,470 which had been taken by you and Ms Payne.

52In early December 2008, Mr Roberts called Ms Poynton and told her that she would get all her money back but she had to be patient and stop all the legal action immediately.  Ms Poynton replied that the money owed to her was well overdue and legal action would continue.   Mr Roberts replied, “You’re making a big mistake continuing with such action, you will pay for it.   You better watch your back.” I do not sentence you on the basis that you were party to this threat. I was not told whether Mr Roberts was being prosecuted for this thuggish conduct.

53Ms Poynton did not receive any further payments from either Ms Payne or you since receiving the payment of $4,000 on 12 September 2008.

54Between 8 November 2007 and 28 August 2008, Ms Poynton had only ever sighted a few samples of goods described by you and had never been to any warehouse owned or leased by you; nor had she ever seen any commercial quantities of any goods as described by you.

55Police enquiries made with Department of Defence, Dimmeys, Hairhouse Warehouse, Akim Pty Ltd, Strandbags and Sportsmart revealed that none of the aforementioned retailers have any records of any business agreements involving Ms Payne and you.

56Police enquiries with Australian Securities and Investment Commission revealed that you are listed as the owner of a Business ‘JS IMIJ’ which was registered as a business on 30 September 2002. Ms Payne is not listed as the owner of any business.

57On 11 July 2013 Detective Senior Constable Whelan attempted to interview you while you were undergoing sentence for other matters to which I have referred.  However, through your legal advisor, you declined the offer.

58On 11 September 2015, your matter was listed for a committal hearing together with co-accused Cherry Payne. However, before any witnesses were called, you entered a plea of guilty to all charges. Ms Payne continued with her committal hearing and has been committed to stand trial in this court. It is scheduled to commence on 3 October this year.

59Ms Mendoza-Cortez, your offending is despicable and must be strongly denounced. I must impose a punishment which is just in all of the circumstances. You exploited the trust that Ms Poynton placed in you and took her down for every cent that you could. You even had the audacity to pressure her to obtain money from other members of her family when she was unable to pay you anymore.   Ms Mendoza-Cortez, you have your eyes shut, I do not know if you are awake or not but I am talking to you and I would ask you that you open your eyes so I can talk to you.  This is the sentencing remarks directed at you.

60When one looks at the scam that you ran in respect of Ms Poynton and in respect of the other victims for which you were previously sentenced, a very clear picture of you emerges as a greedy and callous con-woman. I regard your moral culpability as high.

61In sentencing you, I have also taken into account the fact that your offending was somewhat elaborate and endured over a period of 9 months. Between you and your co-accused, you were relentless in the pressure and deceits that you applied to the victim. In saying this, I leave out of this encapsulation the parts of the prosecution opening that are only evidence against Ms Payne or Mr Roberts.

62In sentencing you, I have taken into account the amount of money you took. It was a substantial sum, although the courts have seen larger sums taken over lengthier periods. However, as was discussed at the plea hearing, the impact on this victim is far greater than would have been the case had you taken the money from a bank or organization which would have been able to better absorb such a theft.

63As you might expect, the impact on the victim has been profound. In a most eloquent victim impact statement which was read aloud, Ms Poynton said that she could no longer live with the comfort of openness and trust with people. She said that she had suffered a complete and painful change of mindset because of what you had done to her. She said that the offences had also deeply affected her financially and that this would be severe for the rest of her life. She will never be able to afford to retire and wonders how she will survive her ‘golden years’ without being a financial burden on her children. She has suffered anxiety and depression as well as stress, which have negatively impacted on her family, friends and co-workers. She has been consumed by thoughts of how you lived well off her money. She said that her reason for taking the matter through the courts was that she did not want this happening to anyone else. Ms Poynton is to be commended for her courage and fortitude in helping to bring you to justice. She said that the most difficult thing was that you had never expressed any kind of remorse or guilt about what you had done to her.

64I note with great concern that perhaps while and certainly after you had committed your last fraud against your previous victims, you offended against Ms Poynton. Further, it is evident from His Honour’s sentencing remarks in relation to the other offending, that you presented yourself as someone who had done nothing wrong since September 2007, when you knew very well that you had committed offences against Ms Poynton from November 2007 until 29 August 2008 - yet another deception, and one that was put in mitigation at that time before His Honour Judge Maidment. In saying this, in no way do I cast any aspersion upon Mr Jassar who was your counsel at that time as well as presently.

65Moreover, you did not stop trying to take money from the victim Ms Poynton out of some sense of conscience or decency. You kept going until she was not able to give you anything more. Further, you were placed on notice about the wrongfulness of such offending, if you needed to be, when you were first interviewed by police in 2007 in respect of other victims. Despite being placed on notice, you went on to offend against Ms Poynton, which is a matter which goes to your moral culpability.

66I must say that your counsel voicing an apology to Ms Poynton on your behalf on the day of the plea hearing, following on from the victim impact statement, smacked of self-serving - that is, rather than real contrition.  It smacked of you trying to curry favour with the court, having heard of Ms Poynton’s concern that you had never tried to apologise for what you had done. Indeed, you had originally intended to run a contested committal hearing in respect of this matter, but having required witnesses including the complainant, to attend, you entered pleas of guilty to all the charges.

67I make it clear that you are not to be punished for taking such a course. You are entitled to contest the charges. However, as at the day of the committal hearing, prior to the matter resolving, you were not showing much in the way of remorse for your victim. The report from your treating psychologist, Helen Norman, reveals that you feel humiliated and ashamed of the situation and that you believe that being brought back to court for these matters is ‘a great injustice’ and you have lost trust in ‘the system’. It is breathtaking that a good part of the report is taken up with your sense of loss in respect of your business and assets and your disillusionment with the justice system. There is no mention of your concern for Ms Poynton in the report or any recognition by you, or Ms Norman for that matter, as to the immense suffering you have inflicted on her. I was told at the plea hearing that a friend of yours, Ms Thompson, who had been in prison with you, advised your counsel that you had told her of your contrition as to how you had affected Ms Poynton.  However, this was not in the character reference that she had provided and only seemed to materialise when I raised this aspect as an issue at the plea hearing.

68However, in circumstances where you chose to take full responsibility for your offending at the committal stage, without the need to cross-examine Ms Poynton, I allow for a significant discount in the sentence that would otherwise be imposed. Although Ms Poynton had the anxiety of being required to attend court to give evidence, she and all witnesses have been spared contested proceedings and the community has been spared the time and expense of these. Your preparedness to accept full responsibility, even if you seem to paint yourself as something of a victim, is a matter which goes in your favour in my assessment of your prospects of rehabilitation.

69In sentencing you, I have factored in the role that you played in this fraudulent enterprise. You played an active role in it, albeit that Ms Payne is alleged to have said some dreadful things to Ms Poynton which cannot be sheeted home to you. Ms Payne is also alleged to have initiated the fraudulent conduct, luring Ms Poynton in and lying to her about your trustworthiness and business opportunities. However, you were the one who urged the victim to come up with more money, even if this meant borrowing it from her family members. In the end, there is little difference in the roles that you and Ms Payne are said to have played, and, to your credit, you accept that this is the case. Effectively, you worked as a team, however, insofar as one can tell from the ‘paper trail’, it appears that Ms Payne may have derived a greater benefit than you from the monies which you took from the victim. However, this is far from clear as a good deal of cash was withdrawn by Ms Payne and you were actively involved in the offending.  It was accepted by your counsel that each of you liked to gamble sums at the Casino. In the end, I accept that it is likely that you derived a lesser benefit than Ms Payne as she had control of the funds and was making large cash withdrawals. However, I am unable to know where the cash went from there and therefore, I am unable to determine the extent to which she derived a greater benefit in circumstances where you were clearly acting as a team and you were actively involved in the deceptions.

70I factor in the delay in this matter being brought to finalisation in circumstances where, unfortunately, the police told the victim to seek civil remedies when she went to see them about you and Ms Payne in 2009. I make some allowance in your favour for the fact that, because of this delay, you have lost the opportunity for partial concurrency in this sentence with the other sentences imposed in 2011. However, if you had been dealt with at that time, I would expect that your sentence in respect of the offending before me would have been a substantial one, as the total sum that you stole from Ms Poynton was considerably higher than the amounts taken from any other of your victims.

71I also factor in that there has been delay from the time that you were made aware that the police were notified of your fraudulent conduct and the matters being finalized. It appears that you were made aware of this investigation in 2013 when you were serving the gaol term for the other offending. However, there was mention of Wendy Poynton’s name in the record of interview in 2009, although no charges were forthcoming at that time in relation to her. You were stressed and refused to take part in a record of interview in 2013, which is your right. If you had taken part and made full admissions then perhaps the delay might not have been so great and therefore, your anxiety in respect of these proceedings would not have been hanging over your head for as long. However, at the end of the day, I make an allowance in your favour for the fact that these matters have been hanging over your head for several years, and also that you have not re-offended since November 2008, which is a considerable period.

72I also factor in that at the time you committed the offences before me, you had no prior convictions.

73I was told by your counsel that you spent all of Ms Poynton’s money either at the Casino or used it in a type of Ponzi scheme, in circumstances where a business venture of yours failed. I was told that you used some of Ms Poynton’s money to keep some business ventures afloat but when I asked for some documentary evidence for this, none was forthcoming. Your counsel accepted and I sentence you on the basis that your motivation for the offending before me was pure greed. This was confirmed by Dr Davidson psychologist in her recent report.

74You were released from gaol on parole on 10 October 2013 and have complied with the strict terms of parole completing this on 3 September 2014. As part of your parole, you were required to perform 96 hours of unpaid community work. Unfortunately, the charges in the matter before me were not laid until 2015.

75While in custody, you found it difficult to adjust and you kept yourself busy doing as many courses as you could. A bundle of certificates was tendered which demonstrated that this was the case.

76When you were released from gaol, you embarked on a beauty therapist course and obtained a diploma in this area in January 2016, although you completed the course in July 2015. You had to pay $100 per fortnight to undertake the course, and the remaining cost of this was funded by Centrelink.

77You are now trying to build a business in this field and as at the plea hearing you had 10 regular clients who pay you $60 per session. You also ran a market stall where you would buy and sell cosmetics and hair products. However, at the further plea today, I was told that you have ceased running the market stall for the time being. Your partner, Mr Fox, financially supports you in your business pursuits, and you plan to convert a bedroom at your home into a studio for you to work from home in your beauty therapy business. It was pointed out by your counsel at the plea hearing in respect of your other offending, that you were building up a business as at that time too. I factor in these efforts, your ability to make an honest living, and the character reference material tendered on your behalf when assessing your prospects of rehabilitation. I understand that your business plans will be negatively impacted by any further period in prison which will be a hardship to you. The fact that you have taken steps to make an honest living since your release from gaol, have committed no further offences, as well as the character material attests to the fact that you have already embarked on rehabilitation. While I am most mindful of this, your rehabilitation is not the only matter which is of pertinence when it comes to sentencing you.

78I take into account your background.

79You were born in the Philippines and you are now 51 years old. Your parents have passed away. Your brothers still live in the Philippines and you have been too ashamed to tell them about your offending. You have no contact with any family members in the Philippines. Mr Jassar said that there was nothing in your upbringing which was out of the ordinary or which he could point to as being relevant to your offending.

80Mr Roberts and you were involved in various businesses together in the late 1980’s, the principal one involving selling attache cases. You developed a friendship which continues. After the briefcase business, you engaged in businesses involving buying and selling cosmetics.

81You came to Australia in 1984 and married a Graham McCormick. You divorced 4 years later. You have had a number of relationships which were troubled and where you have been subjected to violence and abuse. However, you were able to escape these, and to concentrate on running your business.

82Your community supports are limited, comprising your present partner, Mr Fox, Ms Thompson who was in gaol when you were in gaol and Ms Thompson’s sister, as well as your accountant and friend, Mr Roberts, who flew in from Sydney for the plea hearing. However, you do have support as well as a home and the means to earn income. These matters go in your favour when it comes to assessing your prospects of rehabilitation. I also factor in that you have already served a term of imprisonment, which was, no doubt, a salutary experience. You have been seeing Dr Norman psychologist and your GP regularly. You have been seeing Dr Norman since October 2013 through the Office of Corrections, as you were having difficulties at that time, whilst on parole. You stopped seeing Dr Norman in July 2014 but re-commenced seeing her in September 2015, having been overwhelmed by facing new police charges.

83I was told that you attempted to gas yourself at one point after pleading guilty to the charges at the committal hearing, the charges that is which are now before me. However, you stopped your suicide attempt and sought help from your GP and re-commenced therapy with Dr Norman. You did not attend hospital after the suicide attempt. Surprisingly, this incident was not contained in Dr Norman’s report but was in the report of Pamela Matthews, psychologist. You gave various vague accounts of this alleged incident to Dr Davidson psychologist.

84I adjourned this case to have a Forensicare report prepared and also to enable each of the parties to provide some further information in relation to aspects of this matter.

85The Forensicare report was prepared by Dr Ann Davidson on 28 June 2016.

86She saw you on two occasions and provided a detailed report.   She was of the view that you currently suffer a depressive illness which has arisen as a result of the original charges, the charges you now face and imprisonment. She also said that this illness did not play any part in your offending against Ms Poynton. Dr Davidson said that she found no evidence of post- traumatic stress disorder.  

87Although you gave various and vague accounts of your asserted suicide attempt, Dr Davidson found that you currently present with elevated suicidal ideation and recommended that you be reviewed by a psychiatrist following sentencing.

88She carried out a risk assessment in relation to  re-offending and found that you scored in the medium range.  However, your counsel has queried at least one aspect of this assessment.  She said that although gambling debt played a part in your offending, it did not appear to be the cause of your offending behaviour. She said that it appeared that the lifestyle you desired, ‘combined with your adventurous, impulsive and insecure personality fostered a willingness to engage in risky and deceptive financial schemes.’ She said that it appeared that your motivation for the offending was greed and that your declarations of remorse lacked insight and appeared ‘superficially allied with your sense of personal loss, failure and humiliation.’   

89In this regard, Mr Porceddu referred me to the various paragraphs of that report where it seems to me that you were engaging in a good deal of denial in relation to your wrongdoing, which no doubt was a basis for Dr Davidson's findings in this regard.

90You reported to Dr Davidson that you had been sexually assaulted when you were 16 years old and that your mother had been subjected to intimidation by an abusive uncle when you were a child. It is surprising that these alleged incidents did not appear to have been mentioned by you to the authors of the reports tendered on your behalf. Indeed, Ms Matthews said that you told her that you were not exposed to domestic violence or child abuse. I have misgivings with the veracity of your account in relation to some of these background matters, Ms Mendoza-Cortez.

91Having reviewed the psychological material and placing particular reliance on the report from Forensicare, I accept that you are currently suffering from a depressive illness and that time in gaol would be harder for you than for someone without this condition. I also factor in that you have been suffering from suicidal ideation, and that your symptoms are likely to exacerbate if you are to return to gaol. I note that you are being medicated for these conditions, which is something that would need to be maintained on any view of things. Dr Davidson also recommended treatment with a forensic clinical psychologist, noting that access to such an expert is also available within a custodial setting.

92In view of the deliberative, repetitive nature of your offending and the matters to which I have  referred, and also in view of the things that you have reported to Ms Norman and Dr Davidson, I do not accept that you have a great deal of remorse for what you have done, other than feeling ashamed of and sorry for yourself.

93In view of the deliberative, repetitive nature of your offending, the fact that you have engaged in like offending at about the same time, and your limited remorse and insight into its impact on the victim, but also factoring in your lack of prior convictions, your steps toward rehabilitation over a number of years without re-offending, your community supports, work history and your past salutary experience of gaol, as well as your successful completion of parole, I rate your prospects of rehabilitation as fairly good. I place less than moderate weight on specific deterrence and protection of the community.  However, I place strong weight on general deterrence and denunciation. I must send a strong message to the community that offending such as yours will not be tolerated in a bid to deter others from behaving as you have.

94Mr Jassar submitted that in view of all mitigatory matters, and having regard to the principle of totality, that I ought impose a wholly suspended gaol term. He submitted that it is in the community’s interests to preserve the rehabilitation that you have already achieved. Mr Jassar said that if I were against him in this regard, an onerous community corrections order would be appropriate relying on the Court of Appeal decision of  R v Boulton.  

95Mr Porceddu, the learned prosecutor, submitted that an immediate term of imprisonment was the only appropriate penalty in your case. He referred me to some recent decisions of the Court of Appeal which dealt with white collar crime offences and the need to give proper weight to principles like general deterrence. In having regard to these cases, I am most mindful that each of the offenders in those matters stole a good deal more money than you.

96Having taken into account all relevant matters in your case, I’m afraid that I cannot do justice to the weight I must give to all relevant sentencing principles, including the principle of totality,  without imposing an immediate gaol term which involves a non-parole period.

97Would you please stand up, Ms Mendoza-Cortez.  You are convicted of each of the offences.

98I make an order for compensation in the sum of $312,850 to be made in favour of Ms Wendy Poynton.

99I make an order for a forensic sample, by way of buccal swab from the mouth to be taken from you because of the seriousness of the offending, because it is not opposed, and because it is in the interests of justice to do so. I must inform you that if you do not co-operate with this procedure then the authorized officer may use reasonable force to take the sample.

100You are sentenced to the following terms of imprisonment:

101Charge 1                   6 months

102Charge 2                   12 months

103Charge 3                   6 months

104Charge 4                  6 months

105Charge 5                   18 months

106Charge 6                   10 months

107Charge 7                   6 months

108Charge 8                   2 years 4 months which will be the base sentence

109Charge 9                   6 months

110Charge 10                6 months

111Charge 11                1 month

112Charge 12                6 months

113The sentence on Charge 8 will be the base sentence.  I direct that 4 months from the sentence on Charge 5, and 1 month from the sentences on Charges 2, 6 and 12 be served cumulatively with each other and with the base sentence, producing a total effective sentence of 2 years 11 months’ imprisonment and I direct that you serve 14 months’ imprisonment before becoming eligible for parole.

114If not for your pleas of guilty I would have sentenced you to a total effective sentence of 5 years’ imprisonment with a non-parole period of three years’ imprisonment.  I will have noted on the records that Charges 5 and 8 are in the nature of continuing criminal enterprise offences.

115MR JASSAR:  Sorry, can I just ask Your Honour to repeat the cumulation order, please?

116HER HONOUR:  I ordered that the sentence on Charge 8 is the base sentence and that is a sentence of two years four months.

117MR JASSAR:  Yes, Your Honour.

118HER HONOUR:  And that four months from the sentence on Charge 5 and one month from the sentences on Charges 2, 6 and 12 be served cumulatively.

119MR JASSAR:  Thank you, Your Honour.

120HER HONOUR:  Is there anything arising.  No.  Thank you, you can remove the prisoner.

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