Director of Public Prosecutions v Payne

[2016] VCC 1666

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-02169

DIRECTOR OF PUBLIC PROSECUTIONS

v

CHERRY PAYNE

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JUDGE:	HIS HONOUR JUDGE CHETTLE
WHERE HELD:	Melbourne
DATE OF HEARING:	3/10, 4/10, 5/10, 6/10, 7/10, 10/10, 11/10, 12/10, 13/10
DATE OF SENTENCE:	25 October 2016
CASE MAY BE CITED AS:	DPP v Payne
MEDIUM NEUTRAL CITATION:	[2016] VCC 1666

REASONS FOR SENTENCE
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Subject: Obtaining financial advantage by deception, obtaining property by deception
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms S. Thomas	OPP
For the Accused	Mr H. Rattray	Stary Norton Halphen

HIS HONOUR: 

1Cherry Lois Payne, you have been convicted by a jury of five charges of obtaining property by deception and seven charges of obtaining a financial advantage by deception.  Each offence represents one of a series of offences committed by you and a co-accused, Joanna Mendoza Cortez between November 2007 and the end of August 2008.

2In each case, your victim was a workmate who I will call Sally Carter for the purposes of these reasons.  You and Mendoza Cortez repeatedly induced Ms Carter to provide you with a cash or credit amounts to your bank account.  You were acquitted by a jury on Charge 1, a charge of obtaining property by deception.

3Charge 2.  On about 14 November 2007, you told Ms Carter to attend a meeting with Mendoza Cortez.  You told her that Jo ‑ that is, Mendoza Cortez ‑ had been able to obtain good stock from a warehouse including GHD hair straighteners.  You told her that there was already a purchase order from Hairhouse Warehouse to buy these items.  A sample hair straightener was produced.  You told Ms Carter that the deal represented a good opportunity to make profit for everyone and that having money sitting in a bank was stupid.  You said it was an absolute surety that Ms Carter would get her money back and you requested a transfer of $40,000 to your account.

4Mendoza Cortez calculated that she would be paid interest on her investment.  You told Ms Carter that it was easier to transfer money into your account as both she and you held Westpac bank accounts.  On 14 November, Ms Carter deposited $40,000 into your Westpac bank account. 

5Every representation you and Mendoza Cortez made to Ms Carter was in fact untrue.  You and Mendoza Cortez had told Ms Carter that a further $24,000 would be required to complete the deal.  Ms Carter accumulated $24,000 in her bank account as a result of your false story and on November 27, 2007 at your request she transferred $12,000 to your bank account with the Westpac Bank.  That was Charge 3.

6On Charge 4 of the same day, you requested Ms Carter to provide you with a further $12,000 in cash.  She did so.  You accompanied her to the bank and placed the $12,000 in an envelope and put it in your bag.

7Charge 5, at a subsequent meeting, you and Mendoza Cortez told Ms Carter of another business opportunity available to her.  You falsely told her that you had been doing business with Dimmey's and your proposal was that Ms Carter provide you with $65,000 to purchase dressing gowns to be onsold to Dimmey's.  You brought a sample dressing gown to Ms Carter's work as part of the deception.  Ms Carter borrowed $65,000 from her friend and on 5 December 2007 arranged for that $65,000 to be credited to your bank account with the Westpac Bank.

8There were a number of meetings between you and Mendoza Cortez and Sally Carter over the following months.  At one such meeting on 31 January 2008, you and Mendoza Cortez sought a further $35,000 from Ms Carter.  Again, you both falsely told her that you had done deals with Strandbags and Sportsmart in the past, that you were going to sell discounted Adidas and Nike apparel and footwear to Sportsmart and bags to Strandbags.  Again, loan documentation was prepared and interest calculated.  Again, your story was a lie.

9Charge 6.  On 31 January 2008, Ms Carter transferred $25,000 to your Westpac account as a result of that fraudulent inducement.

10Charge 7.  On the same day, 31 January 2008, Ms Carter withdrew $10,000 in cash at your request and provided it to you.

11In March of 2008, further moneys were requested by you and Mendoza Cortez from Ms Carter, purportedly to enable non-existent deals with Strandbags and Sportsmart to go ahead.  On 20 March 2008, Ms Carter paid you $12,000 for that proposal in two instalments, one of $7,000 and one of $5,000 from two separate Westpac bank accounts.  Those two sums form the basis of Charge 8.

12Further, Ms Carter borrowed money from her friend and on-lent a further $100,000 to you and Mendoza Cortez to enable the false Sportsmart/Strandbags deal to proceed.  The $100,000 was credited to your bank account with the National Australia Bank on 20 March 2008.

13An examination of your bank statement demonstrates how those funds were distributed to Mendoza Cortez and also withdrawn in cash.  The total funds were withdrawn over one or two days.  This fraudulent obtaining of this $100,000 is the subject of your conviction on Charge 9.

14In July 2008, you falsely told Ms Carter that there would need to be an alteration to the loan documents that had been drawn up because there was going to be a delay in delivery of stock.  An earlier loan document was then altered.  At about this time, you and Mendoza Cortez falsely told Ms Carter that an opportunity had arisen to buy and onsell socks.  You purported that the socks had already been sold for $16,620 and you said that you and Ms Carter would each split the profit from the transaction after paying $1,100 in cash to you to take on your trip to a holiday in the Philippines.  A false invoice was prepared and shown to Ms Carter; Charge 10. 

15As a result, on 29 July 2008, Ms Carter transferred $14,320 into your bank account.  You immediately withdrew the proceeds of that transfer.  On 21 August 2008, $16,620 was paid into Ms Carter's bank account purportedly being the proceeds of the sale of socks.  From these funds, Ms Carter transferred $1,100 to you for your travelling expenses.  This repayment was designed to induce a further false "investment" by Ms Carter.

16On 25 August 2008, you proposed a further sock deal.  Charges 11 and 12 relate to this further transaction.  Charge 11 relates to $12,650 paid to you by Ms Carter in cash.  She withdrew $10,650 in cash from her bank and had been paid $2,000 in cash by her father over the weekend.  Those two sums constitute the money that you were paid on 25 August 2008. 

17In addition, a further $5,000 was transferred to your account by Ms Carter to facilitate the purported sock purchase.  That payment of the $5,000 forms the basis of Charge 12.

18Again, a false invoice was prepared to demonstrate the purported cost of $17,650 and the purported sale price of $20,550.  The proposed breakup of profit is set out on that invoice.

19Over the next few days, you repeatedly told Ms Carter that you required more money in order to ensure that the deals in place were in fact completed.  You falsely told her that there was a further sock deal available and that you would lose face unless that deal was completed.  You requested a further $10,500.  You falsely told her that you would repay the money from funds that would be paid to you from your (non-existent) brother living in Queensland.  You said that she would have the money in three or four days.  As a result of your request, Ms Carter withdrew $10,500 in cash and gave it to you.  This payment forms the basis of Charge 13.

20A purported repayment cheque subsequently deposited into Ms Carter's account in early September 2008 was returned unpaid.  You claimed that there was a problem with your supposed brother's finance and that you would fix the problem.  It was, of course, never fixed.

21Subsequently, Ms Carter sought to contact both you and your co-accused in order to secure a repayment of the funds you had promised.  Such payment was not forthcoming save for one payment of $4,000 which you made to Ms Carter on 12 September 2008. 

22The total money obtained by you as a result of the offences for which you were convicted totals $318,470.  $19,520 of that amount was repaid to Ms Carter.  The evidence reveals that you sought to intimidate Ms Carter.  You abused her and threatened her.  I make it clear that I do not take that evidence into account in sentencing you for the offences you have committed.  I am sentencing you solely in relation to the obtaining of the various amounts by deception and not your subsequent conduct or misconduct.  That conduct does however demonstrate that you have absolutely no remorse for your offending.

23Your victim provided a victim impact statement, Exhibit A, upon your plea.  She states that your actions have greatly affected her life.  She has lost trust in people and had sustained significant financial damage as a result of your crimes.  She now feels that she may never be able to afford to retire and she fears being a burden on her children.  She states that she has pursued these matters through the courts in order to ensure that what happened to her does not happen to others.  I take the contents of the victim impact statement into account in sentencing you.

24Your co-accused, Joanna Mendoza Cortez, pleaded guilty to six charges of obtaining property by deception and five charges of obtaining a financial advantage by deception before Judge Cannon in March of 2016. On 18 July of this year in this court, Mendoza Cortez was sentenced to an effective term of imprisonment of two years and 11 months with a non-parole period of 14 months. Her Honour made a declaration pursuant to s.6AAA of the Sentencing Act that but for her pleas of guilty, she would have sentenced Mendoza Cortez to an effective term of imprisonment of five years with a non-parole period of three years.

25Clearly issues of parity are relevant in your case.  The offending of your co-accused involved all of the charges for which you were convicted.  However, in addition your co-accused pleaded guilty to Charge 1, the charge upon which you were acquitted.  Your co-accused had no prior criminal convictions, however had been interviewed in relation to a subsequent offence at the time she committed the offence for which she was sentenced by Judge Cannon.

26When you were interviewed by the police in relation to your offending, you lied about your involvement with Ms Carter.  The jury's verdict indicates they had rejected beyond reasonable doubt your version of events.

27Turning to your personal circumstances, your personal history is set out in Exhibit 1, your counsel's submissions, and they need not be repeated extensively in these reasons for sentence.  You are 65 years of age being born in the Philippines in 1951.  You came to Australia at 28 years of age.  Your parents are now both deceased and you have siblings in the Philippines, the USA and in Queensland.  You had four children from three relationships.  One sadly died in 2003 and you currently live with one daughter. 

28You completed secondary school in the Philippines and completed a Bachelor of Arts at university there.  You had employment as a secretary before moving to Australia.  You worked as an administrative officer in Darwin for a year and after the breakdown of your first marriage worked in an accounting firm before obtaining a fulltime job with the Commonwealth public service in 1983.  You moved to Melbourne in 1986 and worked with the Department of Education and Training until 1999 when you started with the Australian Taxation Office. 

29It was there that you met the victim of your crimes and you retired in July these year because of these crimes.  You have just started on the aged pension.  You help care for an 83-year-old neighbour and she provided a reference, Exhibit 2, attesting to your caring support and previous good character. 

30You have no prior convictions nor subsequent convictions.  I sentence you as someone of otherwise good character and as someone with good prospects for future rehabilitation. 

31Your counsel properly submitted that I should take into account firstly your age, secondly that this is your first time in custody, thirdly your lack of prior offending and previous good character, fourthly the delay of eight or nine years since your offending, fifthly your good prospects for rehabilitation and sixthly your general circumstances.  As discussed with your counsel at your plea, I am unable to say where the money you defrauded Ms Carter actually went.  I know that it went through your bank account and a sum of it was forwarded to your co-accused.  Most of the cash just vanished.  I cannot say how much you received nor how much your co-accused received.  I am prepared to view you and Ms Mendoza Cortez as equally culpable in the offences although I recognise that Ms Mendoza Cortez pleaded guilty to one charge that the jury acquitted you of.

32You on the other hand were the victim's purported friend.  You abused her trust and you repeatedly defrauded her.  You lied, you obfuscated, you berated her to suit your own dishonest ends.  Your offending was protracted, it took place over nine months and it caused significant hardship to Ms Carter. 

33Ms Mendoza Cortez was sentenced by Judge Cannon on 18 July as I said to a total effective term of two years 11 months with a non-parole period of 14 months after her early pleas of guilty.  As I say, a 6AAA of five with a three was made by Her Honour.  In sentencing Mendoza Cortez, Her Honour said: 

"Ms 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 Carter 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.  Between you and your co-accused, you were relentless in the pressure and deceits that you applied to the victim. 

In 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 over lengthier periods.  However, the impact on this victim is far greater than it would have been had you taken money from a bank or an organisation which would have been better able to absorb the theft. 

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 accepted this is the case.  Effectively, you worked as a team but insofar as one can tell from the paper trail, it appears that Ms Payne may have derived a greater benefit than you from the moneys which you took from your victim.  However, this is far from clear and a good deal of cash was withdrawn by Ms Payne and you were actively involved in the offending.  Ms Payne had control of the funds and was making large cash withdrawals.  However, I am unable to know where the cash went from and therefore I am unable to determine the extent to which she derived any greater benefit in the circumstances where you were clearly acting as a team and you were actively involved in the deceptions."

34Her Honour's comments clearly have application to your offending. 

35As Her Honour did with Mendoza Cortez, I take into account in your favour the fact that you have had these matters hanging over your head for many years and that you have not reoffended since September 2008 which is, by any view, a considerable period of time.  That said, you have shown absolutely no remorse for your offending nor the slightest empathy for the hardship you caused your victim.

36I must give effect to principles of general and specific deterrence, express the community's denunciation of your conduct and take into account the mitigating factors urged by your counsel.  Mr Rattray submitted that a partially suspended term of imprisonment was the appropriate sentence for your offending.  I am unable to agree with that submission.  To impose a suspended or a partially suspended sentence requires an effective term of less than three years' imprisonment to be imposed.  Your crimes are too serious for such a sentence to be imposed.  Your counsel agreed that it was appropriate for the court to impose an aggregate sentence for all of your offences as your offending should properly be seen as one of a repetitive course of conduct.

37Would you stand up please.

38On all charges, you are convicted.  On the seven charges of dishonestly obtaining a financial advantage and the five charges of dishonestly obtaining property by deception, you are sentenced to an aggregate term of imprisonment of four years and six months.  I order that you serve two years and ten months of that sentence before being eligible for parole.

39How many days PSD?

40MS THOMAS:  Thirteen, Your Honour.

41HIS HONOUR:  Thirteen?  I declare 13 days of the sentence I have just imposed as already been served by way of pre-sentence detention.  I have already made the forensic sample order and compensation orders sought by the Crown and warned you that the authorities have a right to use reasonable force to obtain the DNA sample.

42Would you remove Ms Payne please.  Any other orders required?

43MR RATTRAY:  No, Your Honour.

44HIS HONOUR:  All right.

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