Director of Public Prosecutions v Petropoulos

[2014] VCC 1899

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

AT GEELONG
CRIMINAL JURISDICTION

CR-14-00242

DIRECTOR OF PUBLIC PROSECUTIONS

v

CON PETROPOULOS

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JUDGE:	HIS HONOUR JUDGE MULLALY
WHERE HELD:	Geelong
DATE OF HEARING:
DATE OF SENTENCE:	5 November 2014
CASE MAY BE CITED AS:	DPP v Petropoulos
MEDIUM NEUTRAL CITATION:	[2014] VCC 1899

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr R. Gibson	Office of Public Prosecutions
For the Offender	Mr C. Baker	Michael Brugman Solicitors

HIS HONOUR: 

1Con Petropoulos, just prior to the empanelment of the jury you pleaded guilty to two charges of make a false document and three charges of attempt to obtain a financial advantage for yourself or another dishonestly.

2There was a lengthy and, in my view, inevitably forlorn argument prior to this point to stay the then indictment.  As I have said, ultimately your plea of guilty to the five offences acknowledged that you committed the offences, that is, all elements of them.

3You accepted responsibility for acting dishonestly.      There is, of course, a context in which you committed your crimes.  I will shortly, but briefly refer to the broad contextual facts, so as your conduct in committing the crimes can be understood.

4As I have repeatedly said to your counsel, you will not, and have not, been punished for other crimes, or other conduct that you are not facing or have not pleaded guilty to.

5The law in this respect is clear, it was laid down by the High Court in De Simoni and applied in this State, or re-stated in the decision of Newman v Turnbull, though in other decisions the Court of Appeal have, at times, cautioned judges not to read too much into Newman v Turnbull.  But the application of De Simoni in this case is straight forward.  All you are to be punished for is the five serious crimes you committed, no more and no less.

6Mr Petropoulos, you met a man by the name of Steve Bencich when you engaged his company, Cedar Windows, to supply you with windows.  The two of you became friends.  You encouraged him to join with you in property development. 

7In May 2011 you men formed a company, Bencon Property Group Pty Ltd.  Its purposes was investing in property and restaurants.  You agreed to purchase a property known as the Mill Market in Newcomb.  Its price was $2.55 million.

8Mr Bencich organised the loan or a line of credit for $805,000 and the funds were placed in Bencon bank account.  You had been negotiating for some time prior to that about the purchase of a café business in Geelong.  That proceeded.

9In any event, you assured Mr Bencich that the Mill Market deal was still on and he remained keen.  On 27 May 2011 a contract for the sale of Mill Market to Bencon was signed by you.  An $80,000 deposit was paid.

10However, funds were needed, and there was difficulty over the next period of time in settling the Mill Market purchase.

11You set about seeking finance for Bencon.  In this regard, you falsely altered important documents connected with the Mill Market sale.

12Firstly, you grossly exaggerated the amount Bencon had paid as a deposit from $80,000 to $1.38 million.  You later altered the s.32 certificate, or the schedule attached to it, provided by the vendor, indicating that the rent paid was $320,000 when, in truth, it was $220,000.

13All business and commerce, including that involved in the purchase of properties and obtaining finance to fund those purchased, depends on all involved acting honestly.  Vendors, agents, those involved in securing loans, such as mortgage brokers, and purchasers, must be able to trust that the documents they are provided with are true and not fraudulent.

14That is particularly so of documents provided to a purchaser by the vendor, such as the deposit received and the s.32 Certificate.

15The two crimes of making a false document are serious examples of dishonesty.  The purpose was to influence the mortgage brokers who received the false documents to favourably consider the financial position of Bencon.

16You knew the mortgage brokers were acting as your agent or conduit and they would forward the false documents to the lending institutions.  Your attempts to obtain finance using false documents were unsuccessful.          In respect to those documents, a person in your position, Mr Petropoulos, is representing that others separate from you, have stated facts about the property and the sale.  If you dishonestly alter those facts in order to deceive others, then you diminish, indeed, attack, the foundational ethic of business, and that is, as I have said, trust.

17While the value of the attempted deception is ordinarily very important in the assessment of the gravity of what you did, it is also important to consider the nature of your deception and what you did, and to what sort of documents.  On any analysis, this is serious offending.

18However, I keep in mind your attempts were just that, and thwarted because of the due diligence on behalf of others.

19I take into account that the documents were forwarded to mortgage brokers and not further down the financial track.  This impacts upon the gravity, or my assessment of the gravity of your offending.

20Nonetheless, I consider your moral culpability to be very high.  You knew, or must have known what you did, was plainly wrong, but you persevered.  This was not a spur of the moment set of crimes, but a considered and planned attempt.  Your crimes reveal a troubling dishonest aspect to your character.

21You are now 52, you have no prior criminal convictions.  You are entitled to call on that fact in seeking a merciful disposition.  You have had no trouble in a long time since these matters came to light and I take into account that they have been hanging over your head for some time.  All of that is to your credit.

22You have, and will suffer, reputational damage.  There will inevitably be collateral consequences as to your capacity to hold directorships. 

23You now live with your second wife and a number - I apologise, it just slips my mind, whether it's three or four - very young children in a rental property in East Geelong.  She relies on you.

24Your previous wife stands by you, as do your adult children.  You were, and still are, a good father.  Your brother is also a strong support to you.  He wrote a helpful reference and has been with you at court.  He speaks of your hardworking migrant parents raising a family in trying circumstances, especially after your father was seriously injured in 1975, and unable to work thereafter.  You came up to the mark yourself, taking on many family responsibilities in looking after your younger siblings. 

25You developed a hardworking ethic.  This saw you start and expand small businesses, especially in the retail petrol sales area.  Your work history is to your credit.  Your long hours working, and I think it was in Melbourne, in any event, your long hours working may have contributed to the end of your first marriage.

26It is clear enough that the Family Law property settlement at the time of your offending, made it hard for you to obtain finances in the orthodox ways.

27I have also read the letters written by other long-term friends who speak highly of you. 

28Your plea of guilty means I will impose a less severe penalty and, indeed, one of a different kind than would have been the case had you gone to trial.

29The prosecution's approach to the disposition of this matter was commendably fair.  In ordinary circumstances of crimes of dishonesty of this kind, the prosecution would contend for immediate and significant actual incarceration which would not have come as any surprise to the court and, more likely than not, would have been imposed.

30But, here, as a consequence of all the factors relating to the attempts, the false documents and your own circumstances, the prosecution submission was that a wholly suspended sentence was open.

31Your own counsel's misconceived initial submission seem to fall away and he argued ultimately that any term of imprisonment ought be wholly suspended.

32The principal sentencing considerations are denunciation of your crime, deterrence to others who may be like minded to act dishonestly and deceptively in business.  Also, given the nature and persistence of your offending, I must also give some weight to deterrence to you, notwithstanding that you have no prior criminal history.

33It is often said and thus part of current sentencing practices that prior good character is of less weight in offences of this kind, as so often perpetrators have never been convicted before and, indeed, the fact that they have not been convicted before or been in any trouble, is part of the reason why they are trusted by others who are taken in by them.

34Considering all the matters relevant in this sentencing process, in my view, the only just and appropriate sentence is one of imprisonment.  The real question is whether it is desirable that it be wholly suspended.  I use the term "desirable" because that is the terminology of the Sentencing Act at the time.

35I have considered the provisions of the Sentencing Act relating to the factors I must take into account in determining if it is desirable to wholly suspend the term of imprisonment.

36While at first blush I considered no other punishment other than some incarceration would suffice, I am now of the view that I can wholly suspend the sentence.

37You should understand, Mr Petropoulos, that it is by a bare margin that you are not spending a significant period of time in prison.  You should be in no doubt that should you act dishonestly again, a prison term awaits you, and you should understand that should that occur, that is, that you do act dishonestly, and find yourself facing prison, that no-one is ever the same after a prison term.

38Mr Petropoulos, can you please stand.  For committing the crime, Charge 1, you are sentenced to 14 months' imprisonment.

39Charge 2, nine months' imprisonment.

40Charge 3, nine months' imprisonment.

41Charge 4, nine months' imprisonment.

42Charge 5, ten months' imprisonment.

43I order that one month of charges 2, 3 and 4, and three months of Charge 5, be served cumulatively upon each other and upon the sentence that I imposed on Charge 1.  That gives a total sentence of 20 months' imprisonment and I wholly suspend that term of imprisonment, and the period of time for which the suspension is operative, is two years.

44I will explain to you what a suspended sentence means shortly.

45Had you pleaded not guilty to these offences and been found guilty of them, I would have imposed a sentence of two years' and two months' with a non-parole period of 14 months.  You would have spent a significant period in gaol.

46Mr Petropoulos, you have to understand that I have imposed a sentence of imprisonment, but wholly suspended.  Should you commit any offence punishable by imprisonment, within the next two years, you will breach the term of imprisonment that I have imposed, and unless you are able to establish to me that there are exceptional circumstances that have arisen from now on, and it is in the interests of justice; unless you can satisfy those high hurdles or high criteria, then I have no choice but to order that you serve each and every day of the 20 months that I have imposed.  Do you understand that?

47OFFENDER:  I do.

48HIS HONOUR:  You should understand that almost every crime you can think of is punishable by imprisonment, so if you get a can of drink at a service station and drive off, that is punishable by imprisonment, even if a magistrate would not give such a penalty for you. 

49I just emphasise that because of the consequences to you of committing any crime.  Of course, the way forward through this is never to commit any crime, at all, again.

50Is there any other orders sought?

51MR GIBSON:  No other orders sought, Your Honour.  If Your Honour pleases.

52HIS HONOUR:  I thank counsel for their assistance.  I also thank the informant for a comprehensively put together brief over a very long period of time.  It seems to me that these cases are hard enough, but diligence tends to make them easier, and that was evident.

53MR GIBSON:  Your Honour pleases.

54HIS HONOUR:  Thank you.  Mr Petropoulos can leave the dock.

55(Offender released.)

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