Director of Public Prosecutions v Pereira

[2021] VCC 566

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 19-01559

DIRECTOR OF PUBLIC PROSECUTIONS

v

ROCKY PEREIRA

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JUDGE:	HIS HONOUR JUDGE GUCCIARDO
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	7 May 2021
CASE MAY BE CITED AS:	DPP v Pereira
MEDIUM NEUTRAL CITATION:	[2021] VCC 566

REASONS FOR SENTENCE

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Subject:

Catchwords:  Obtain financial advantage by deception – Arson – Attempt

to obtain financial advantage by deception – Gambling

disorder - Lack of priors – prospect of deportation

Legislation Cited:

Cases Cited:

Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C. Foot
For the Accused	Mr J. Lowy

HIS HONOUR:

1Rocky Pereira, you pleaded guilty to one charge of obtaining a financial advantage by deception, one charge of arson and a charge of attempt to obtain a financial advantage by deception.

2The circumstances of the offending are outlined in a summary prepared by the prosecution which was tendered and exhibited the factual basis which was agreed upon by the parties.  I will recite these circumstances briefly.

3At the time of the offending, you and your de facto partner, Melissa Crocker, owned and operated a café in Wodonga.  The business had been registered with ASIC, the Australian Securities and Investments Commission, as a registered propriety company limited by shares in January 2018.  Ms Crocker was the registered Director and Secretary.  The business had a bank account with the Commonwealth Bank and you were a signatory and authorised to conduct transactions on the company's account.  You in fact controlled the
day-to-day running and finances of the business.

4The café was located within a complex of commercial premises in the central business district of Wodonga.  A number of business were located under the roofline and the complex round a central courtyard space.  Access to this courtyard after hours was via a padlock and key padlock and key on a secured gate.

5In late February 2018, you obtained insurance underwritten by CGU Insurance by way of insurance brokers in Albury.  The policy covered public liability equipment and stock with a small excess.  You and Ms Crocker jointly signed the policy.

6Whoever is in charge of this group, can you ensure that you are in the court before the process starts please?

7On 15 July 2018, a Sunday, you were seen at the complex and you told the person who was working in her shop at the time that you were cleaning the storeroom.  This witness noticed that a large mirror from your café had been removed and was now in the courtyard.  She only noticed a drink bottle just outside the café door on the ground.

8At about 3.30 am on the following morning, July 16, you left your place of residence in a ute and drove to a car park of Hume Street and walked via a laneway into the complex of the corner of Stanley Street and Hume Street where your café was located.  CCTV footage from a camera which captures the laneway and the courtyard shows you walking into the laneway from Stanley Street at 3.44 am.

9You hid your face and walked to the gate.  You used the key to open it and you then entered an electrical room which controlled power to the complex.  You poured petrol from a Powerade bottle onto the ground at one end of the electrical room near the door and near your café.  You then forced the door which allows access to the courtyard from the café to ventilate the entry.  You then ignited the petrol which caused the fire.  You left the premises by way of the toilets at the rear of the complex.  You went over a fence, back to the car park and returned home by 3.55 am.

10A few hours later, at about 6.20 am, you went to work and saw police and CFA members at the scene.  You approached them and gave the appearance of being in shock and surprised by the fire.  By the following day, 17 July, you lodged a claim for insurance payment via the brokers from CGU for fire damage to the café.  This is the subject of Charge 3, the attempt to obtain a financial advantage by deception.

11The total damage caused by the fire was estimated at $141,749.  The fire was deliberately lit by pouring flammable liquid at floor level and igniting it.  There was damage done by the fire and consequent smoke to not only your café but to another business nearby.

12Your café business was in arrears on its rent at the time of the fire in mid-July with no rent having been paid since it commenced trading in February 2018, some $16,409.  You had written to the estate agents for the complex to explain the overdue rent by claiming a banking error seeking a deferral of the debt.  This letter was found by police investigators.  Your financial details were obtained from the relevant bank by way of the café's account history.

13You had in fact lodged a misplaced funds complaint with the bank for $350 in March 2018, not for $6,243 as was claimed on the document for overdue rent.  This document had been altered by you before providing it to the agency in order to obtain the deferral.  This is the matter the subject of Charge 1 of obtaining a financial advantage by deception.

14Police investigators also uncovered that the café was in effect not in a position to trade at all on the morning of the fire as there were few drinks in the drink's fridge, no packaged foods or items usually available for sale and no food stock in the storeroom or fridges.

15On 26 July, police found the bottle containing fuel at your place of residence.  They examined your vehicle on 31 July and found personal documents and photographs of children, cigarettes and a lighter, an electric mixer, part of the property you had removed from the café in anticipation of the fire you were to set the day before you proceeded to light it.

16Police seized your telephone and it contained rather remarkably a saved recorded exchange between yourself and Ms Crocker of 16 June 2018 at 2 pm on that day, a full month before the arson, during which you discussed your relationship and the café with its finances. The café was not operating successfully and you discussed finding alternative work and closing the business.

17The following was part of the exchange.  You have said, 'Would like to blow this place up?'.  Crocker replies, 'I don't want to blow it up but I don't see any other option'.  You then said, 'It's either today or tomorrow.  It's gonna happen over this week.  It's gonna happen.  The reason for behind that is for us and walk out of this place.  That's the only way it's gonna work.'  Crocker replies, 'Yep'.  You then added, 'The reason behind it is I don't wanna shut the door and tell anyone that it didn't work.  We don't have a thing.  At least we can say the fire went out and we're done and dusted.  After that we go, "Nah, there's no point rebuilding it, just left it as it is", and that's all you have to.'  Crocker then noted, 'Yep, it's been six months and it's not getting any better.  I don't know.'  And you agreed.

18The removal by you of stock from the café is confirmed by a written notice from the property manager at the complex noting that goods were being stored in outside areas interfering with safe exit and requesting that they be removed.  That notice was on 12 July.  The witness who saw you at the door to the business on the late afternoon of July 15 was told by you that you were cleaning the storeroom and she noticed the mirror and the bottle I mentioned before.  They were gone when she left at 8.35 pm.

19On 26 July, you attended at the Wodonga police station.  You first told police that it was not you in the CCTV footage and that people in the complex had said to you that it would be better if it went up.  You expressed disappointment that police were implicating you in the fire.  You denied owing $5,000 to your coffee supplier but only $1,200 and you asserted Crocker was both out of the loop when it came to the business finance issues.

20The following day, you were arrested.  Apart from a largely no-comment answer to questions put to you by police, you said that the bottle located at your home contained lawn mower fluid petrol but admitted you had never mowed the lawn at your home address.  You denied being involved in the arson and asserted you had nothing to gain from it.  You were remanded.  Before being bailed, you remained in custody for five days.

21Arson is a serious criminal offence which carries the maximum penalty of 15 years' imprisonment. Obtain financial advantage by deception has a
10-year maximum penalty.  Attempting to so obtain has a five-year imprisonment maximum.  These maxima indicate from the legislators the inherent gravity of this criminal conduct.  Fire deliberately lit to cause damage is damaging of itself, dangerous and unpredictable.

22Although the fire you ignited was started at night, the potential for serious damage to the entire complex was real both by fire and smoke.  Deliberately lit criminal arson also potentially endangers first responders if not the public.  The cost to various businesses associated and located in this commercial complex including cleaning, hire of equipment, the loss of income as well as disruption to those businesses.

23The electrical room powered all 13 businesses in the complex and all of them share the same roofline.  Only two of the available shops were then vacant.  You had gone to some length to disguise your identity by wearing a dark hooded jumper, dark track or cargo pants and sports runners.  You claimed the shop had milk and coffee and other stock in preparation.

24Your intention was to do significant damage to the café.  Without the early notification by ambulance officers to CFA, the entire complex could have been destroyed.  As it was an adjoining business to your café in question, it was damaged.  This was selfish and unacceptable conduct and the behaviour of setting the fire for the reasons, which you had, shows high moral culpability.  You were utterly irresponsible and oblivious to the damage your actions could have produced to others and did produce and such conduct must be denounced in strong terms.

25Victim impact statements were submitted to the court by Robert Groat, one of the adjoining proprietors.  He speaks of the worry and stress of the uncertainty over his business, the impact on his family and staff and clients.  He was forced to rectify damage caused, hire a power generator, cover its costs, the viability of the business remains a question mark and the business is a real estate agency and remains under question.  He needed to attend to requests by tradesman, police, insurance representatives, media and this all required time and energy.

26Jarrod Hunter, a part-owner of the complex, expressed consternation, upset and anger.  He lost one tenant who had been in the complex for about 10 years.

27Della and Mathew Poppins, who run a hairdressing salon in the complex, have been there for some 28 years.  The shortfall in insurance left them $10,000 short.  They also had built a rapport with you and feel betrayed and upset your actions.  I take these victim impact statements into account.

28Although insurance did cover most costs, this type of criminality not only endangers businesses but causes stress and dismay in ordinary citizens going about their lives and activities.

29The intent to access insurance cover for your criminal acts is also, in my view, contrary to what was submitted serious dishonesty.  More serious certainly than the actual obtaining of a financial advantage by deception by way of a rent deferral which was of temporary nature.

30I take your plea into account.  You pleaded guilty at the committal hearing in August 2019 prior to any cross-examination of witnesses.  This is the earliest opportunity for a plea in effect.  Your plea of guilty will reduce your sentence.

31The plea has a utilitarian benefit of having avoided a criminal trial with its attendant stress and costs.  Its utilitarian benefit is particularly valuable during these times blighted by the COVID-19 pandemic when the criminal justice system has been placed under significant pressures and consequent delays.

32I take your personal circumstances into account.  You are 39 years of age and you come before the court with no prior criminal history.  You are a Sri Lankan citizen with permanent residency status in this country.  You were born and raised in Kandy and you came to Australia aged 21.  When you were aged 31, your father passed away in a motorcycle accident.  Your mother has not re-partnered.  You have a younger brother.

33Your childhood and adolescence were unremarkable, and you lived in a
close-knit catholic family with regular contact with grandparents and extended family, a good social life.  You played sports and enjoyed pastimes and had a comfortable and active life.  Your brother is still living in Sri Lanka.  You were educated to Year 11 equivalent there and within two weeks of leaving school, you obtained employment selling timeshares in resorts for a year and then for an insurance company for some 18 months.  You then worked for Sri Lanka Airlines as a ticket agent and later as a flight attendant.

34You came to Australia with a woman you were dating.  In Australia, you commenced working in a restaurant as a kitchen hand but without formal training.  You worked then as a chef and at a salad bar for some four years before purchasing the bar which you ran for then six years.  Following your separation, you sold the business.

35By this stage, you had developed a gambling addiction.  However, with the leftover money from the sale, you purchased another salad and soup bar which survived only six months.

36Your gambling was intermittent with periods of abstinence and then relapse.  A friend who owns motels offered part-time work and you had never had significant periods of unemployment.  This work history is to your credit and I take it into account.

37Together with your prior good character, lack of priors, this work history augurs well for your rehabilitation and you continued, I note, to work currently up to this point in two jobs and for the last three years have been employed in positions of trust in a motel business and a takeaway business.  You pay child support regularly for your daughter with whom you have 2,5 hours contact every second week.  I accept that you have good prospects of rehabilitation and likely not to reoffend.

38When you moved to Australia, you lived together with a woman who was also employed by the airline and after some 18 months, the relationship broke down.  At age 24, you met Casey, then an 18-year-old.  You moved in together, she became pregnant and you have a daughter who is now aged about eight years of age.  It was during this time your gambling habit became problematic.  It is a familiar story.  You had some large initial wins which you put in a separate account which was meant to fund your gambling.  With time, as the losses mounted, you began to withdraw money from the business.  Casey left the relationship which had lasted some eight years, two of which as a married couple.

39You were together with Melissa Crocker for about eight months before that relationship ended.  You are now in a relationship with a woman who is the daughter of your employer.  You told Warren Simmons, a psychologist, who provided a report to the court dated 22 January 2021 that this relationship had little emotional depth, that it is more of a friendship.  However, your counsel described that as a relationship and Ms Sanford has provided a character reference which I take into account.  You currently reside with her and her two sons and Ms Sanford speaks highly of you in her reference as a generous and kind person that you built a life together and she is supportive and this support is a positive factor for your future.

40You have no psychiatric history or medical issues or substance abuse problems.

41You have described beginning to gamble when your daughter was born.  The habit became problematic and continued being so for some 2,5 years.  It ceased when Casey left you.  However, you relapsed when with your new partner.

42You told Mr Simmons you had taken steps to ensure that you are in control of what is occurring on the gambling front.  At the time of the offending, you were gambling with money from the business.  This led to significant difficulties leading to the offending.  You appeared remorseful to Mr Simmons and acknowledged the significant impact on others.  I accept your plea is accompanied by remorse.

43You have close contact with your daughter and very close relationship with her.  Mr Simmons opined that your pattern of gambling would meet criteria for a diagnosis of gambling disorder.  You have been able to refrain from gambling in some periods but it has been a significant factor in relationship breakdowns, loss of your first business along with a lack of success in the business that is at the heart of these index offences.

44You believe your disorder contributed to your behaviour.  It is clear that although you had been thinking of this ill-advised behaviour for a while and cleared the store, secured fuel, your effort was amateurish including leaving revealing locations services and applications running on your phone which meant your movements for the night were recorded and stored not to mention the recorded conversation I have mentioned before.

45You wished to apologise through your counsel to other tenants.  It was said your remorse and regret comes from a recognition that your conduct affected these people who ran businesses around you and were known to you.  You betrayed friends and acquaintances.  You have sought counselling for your gambling habit and have attended every three days to that and I was told you relapsed about two months ago.

46I was informed that at the peak of your gambling, you were putting something like $30,000 through pokies each month.  Clearly, this was not sustainable.  You obtained counselling away from the more public forums such as Gamblers Anonymous.  It was submitted at the plea that there was a clear nexus between the gambling habit and the offending.  This was said to be relevant to the disposition sought, a community corrections order either standing alone or in combination with a sentence of imprisonment which in the case of arson falls outside the strictures of the 12-month limitation by legislation.

47I have reviewed the long line of authorities from Raddino
(2002) 128 A Crim R 437 to Pham [2020].  In my view, your gambling disorder, to use Mr Simmons' diagnosis, offers an explanation, not an excuse, and to some extent may be taken into account that that is as far as it goes in effect.

48General deterrence in this case is a primary consideration.  The fact that you have a relapsing gambling disorder and it has played a part in the commission of the offences is a matter upon which little weight must be given (see R v Atalla (2002) 132 A Crim R 531).

49Whether or not the offender's gambling addiction should be taken into account as a factor in mitigation and the weight which should be attached to it will vary according to the nature of the case (see Pasco (Unreported, 29 April 1998, Victorian Supreme Court, Court of Criminal Appeal) and Petrovic
[1998] VSCA 95); (see also Cavallin (Unreported, 24 July 1996, Supreme Court of Victoria, Court of Criminal Appeal).

50Your addiction here has avoided an aggravated motive for pure greed or a desire to fund some other criminal activity but, in my view, this is not the type of unusual case where a gambling addiction has a significant effect upon the importance of general deterrence (see R v Martin (1994) 74 A Crim R 252;
R v Galletta [2007] VSCA 177).

51When offences of dishonesty are committed and where an arson is committed as here in order to free the accused of the burden of a failing business, irrational thoughts and a measure of impaired judgment will be present.  The diagnostic label is not the end of the point of the inquiry.  What matters is the nature and extent and effect of the disorder on mental impairment at the relevant time.

52In other words, a demonstration of how the disorder affected mental functioning, if there is to be reliance to be placed upon a gambling disorder to show your inability to exercise appropriate judgment or make calm and rational choices must be demonstrated.  All matters which would reduce your moral culpability and ameliorate denunciation and specific and general deterrence.

53You have had periods of abstinence and relapse.  You have had opportunities to address your addiction.  The offence was premeditated and planned, perhaps not too well but planned nevertheless (see R v Do [2007] VSCA 308).

54The offence was not committed to feed a gambling addiction.  The connection or nexus here is primarily temporal but not causative in any sense.  You still had a large degree of choice as to how to finance your habit and this does not, in my view, impact upon your moral culpability or relevant primary sentencing principles to be applied.

55An underlying motive and partial explanation falls here, far short of a condition which is causative or which impairs the offender's judgment (see R v Grossi [2008] VSCA 51).

56Your gambling may be indirectly and only partially responsible for the offending conduct but the decision to offend was not the consequence of the disorder which impaired your judgment as to either the nature or the seriousness of the conduct you contemplated and acted out.  It cannot act in appreciable moderation of the sentence (R v Cusack [2019] VSCA 207).

57I do, however, take into account in your favour your effort in relation to counselling which you have undertaken.  I do not consider that this is a case in which a sentence other than a custodial one is warranted.  You appear to have concluded without thought to the impact or damage to others that your way out of this burdensome obligation of a business was to be resolved by burning the place down and in some way resolving your situation.  Your blameworthiness is high.

58After the plea, I made clear that obtaining an assessment for a community corrections order was to provide the court with full sentencing options.  Although you were found suitable, the same conditions which enabled you to be found suitable are those which will ameliorate your sentence and to make it what, in my view, is a lenient disposition.

59A community corrections order either alone after a sentence is warranted to support rehabilitative efforts already undertaken or to provide supervision and promote rehabilitation.  Your prospects are good given your lack of priors, your plea, your work history, your remorse, your efforts of addressing your gambling.

60I take into account the delay that has occurred between the resolution in August 2019 and the plea and sentence.  This was largely due to COVID-19 pandemic consequences.  I take the impact of this delay upon you noting you have used it positively by way of employment and relative stability.

61You have support in place and this is another protective factor.  I take into account that you have health issues.  You suffer from very high blood pressure and chest pain and you have consulted a cardiologist.  You will also require surgery to deal with a hernia.  I do take into account these conditions and the potential for them to render reclusion more burdensome.

62I take into account the reference from Dr Phelps of a cardiovascular disease as well as the letter from Michael McQuilton who has provided you with counselling over your gambling. Your employers, Mrs and Mr Gavin and Mr Pompier, also provided a reference which I have read.

63In your case, because of your status as a permanent resident and not an Australian citizen, there may be repercussions concerning your visa and ability to remain in Australian under the provision of the Migration Act.

64The consequences of this sentence will no doubt weigh on you with the prospect of deportation being one possible outcome and I will take this significant consequence into account.  I cannot and must not speculate as to the outcome of such an administrative process but can take into account the likely impact upon your state of mind at the prospect of deportation given your current stability and overall good prospects for the future.

65The mitigating factors here present, I repeat, compel persuasively me to impose what I consider to be a lenient sentence.

66Mr Pereira, please stand.

67On Charge 1 of obtaining a financial advantage by deception, you are convicted and sentenced to six months' imprisonment.

68On Charge 3 of attempting to obtain a financial advantage by deception, you are convicted and sentenced to three months' imprisonment.

69On Charge 2 of arson, you are convicted and sentenced to 18 months' imprisonment.

70I order that two months on Charge 1 and one month on Charge 3 be cumulative making a total effective sentence of 21 months' imprisonment.

71I fix a non-parole period of 12 months.

72I declare that you have served five days by way of pre-sentence detention.

73But for your plea, I would have sentenced you to 26 months' imprisonment with a non-parole period of 15 months.

74Ms Foot, are there any ancillary orders?

75MS FOOT:  There is one disposal order, Your Honour, which I believe has been provided and a forensic sample order which is also sought, Your Honour.  Also drafts have been provided.

76HIS HONOUR:  I do not have them in front of me but I will sign them when they are available.

77MS FOOT:  If there are any issues, I will make sure they are sent again to the learned associate.

78HIS HONOUR:  I should inform Mr Pereira as to the forensic sample order.

79Mr Pereira, that is an order which provides that a forensic sample, a biological sample be taken from you.  That will be by way of a mouth swab.  It is not a painful procedure and that is in order to place your DNA on the DNA database.  If at the time that an authorised police officer asks you to undertake that process, you do not consent, then that officer is empowered to use reasonable force to get a sample from you and it is likely to be a blood sample.  Do you understand?

80OFFENDER:  (No audible response.)

81HIS HONOUR:  Yes, I will sign those orders when they are available.

82Are there any other matters?

83MS FOOT:  No, Your Honour.

84MR LOWY:  No, Your Honour.

85HIS HONOUR:  Thank you both.  Sine die.

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