Director of Public Prosecutions v Poursanidis

[2015] VCC 1628

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-00929

DIRECTOR OF PUBLIC PROSECUTIONS

v

TOM POURSANIDIS

---

JUDGE:	HER HONOUR JUDGE LAWSON
WHERE HELD:	Melbourne
DATE OF HEARING:	9 November 2015
DATE OF SENTENCE:	16 November 2015
CASE MAY BE CITED AS:	DPP v POURSANIDIS
MEDIUM NEUTRAL CITATION:	[2015] VCC 1628

REASONS FOR SENTENCE
---

Catchwords: Criminal Law- Sentencing- “course of conduct”-obtain financial advantage by deception- offending committed over lengthy period of years- exploitation of a business associate by a friend- sentence of imprisonment imposed.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr D. Hannan	Vaille Anscombe, Acting Solicitor for Office of Public Prosecutions
For the Accused	Mr R. Thyssen	Patrick Dwyer

HER HONOUR: 

1Tom Poursanidis, you have pleaded guilty before me to one charge of obtaining financial advantage by deception.  This is a course of conduct charge and the offending spans just over seven years between 20 September 2003 and 8 December 2010. 

2The offence is serious and that is marked by the maximum penalty prescribed by Parliament, namely ten years' imprisonment.

3I now will proceed to sentence you on the basis of the summary of the prosecution opening that was read at the plea hearing and is marked as Exhibit 1.

4Your offending involved one victim, Paul Knight.  Mr Knight, a retired builder, became acquainted with you through your brother John.  Mr Knight operated a business with his brother trading as J & P Knight Hire Pty Ltd.  The business was a small building business specialising in formwork for concrete constructions. 

5Mr Knight first met you in 1990.  He had built a factory with your brother John in Granville, New South Wales.  The factory was leased to Fleet Repairs, a panel beating shop, between 1988 and 1998.  You worked at Fleet Repairs as an assessor.  Mr Knight became acquainted with you in attending as the landlord to the factory.  Your relationship was initially one of friendship. 

6On 24 November 2010 Mr Knight contacted Victoria Police to report a deception.  He told police that it had taken place between September 2003 and continued up until November 2010.  In broad compass Mr Knight made 541 separate payments to you, all as a result of deceptions perpetrated upon him by you.  In total, the amount he was deceived into paying you totals $4,929,800, none of which moneys have been recovered and all of which moneys have been used by you. 

7The context of the offending was that in early 2000 you spoke to Mr Knight regarding a business deal to purchase and sell a second-hand car.  He knew you had substantial experience in assessing damage to second-hand cars and so he agreed to the deal.  He supplied half the cost of the purchase and repair costs.  Over 2002 and 2003 six cars were similarly purchased and sold, one at a time, and Mr Knight made $500 to $1,000 per car. 

8Between 2003 and 2004 you started commuting between Sydney and Melbourne.  Mr Knight continued providing funds towards second-hand cars and the deals were undertaken in Melbourne.  He never received any money back from those further deals.  In reality, no cars were purchased nor fixed nor sold by you. 

9You deceived him into making some 29 deposits into your St George Bank account on this basis.  He would periodically ask you the whereabouts of the funds and/or the share of the profit for the sale of various cars and you would always tell him that you were preparing a larger and more lucrative deal that you wanted his involvement in.  You told him that you were using the profits gained to help purchase the fleet of cars. 

10Mr Knight, having been satisfied with the first six transactions in which he received a profit, acquiesced and agreed to roll over his initial investment into the next business venture as was proposed by you.

11In 2004 you proposed a business deal with Mr Knight whereby you told him that you were intending to purchase a small number of brand new cars and sell them to the Department of Justice.  You told him you had a cousin working with the Department and your cousin was going to put you in contact with the two officers responsible for buying the cars.  He was told initially that there would be six cars involved and that the Department would hold all paperwork until the deal was complete.  None of those matters were true. 

12Mr Knight, still having confidence in the deal, paid you the money upon these deceptions.  He understood that at the completion of the deal he would receive the initial investment and half the profits.  Over time you told him the deal was getting bigger.  The initial supply of cars increased from six to 20 and then 30 and eventually peaked at 55 cars.  There were no deals and all of the details provided by you were fraudulent.

13Mr Knight began depositing money into your St George Bank account to fund this non-existing deal and made periodic payments to the same account from 14 April 2005 over the next five years or more.  The total amounts paid to you as a result of your deceptions amounted to four million nine hundred and twenty-nine thousand dollars and eight hundred dollars.

14The course of conduct charge is representative of the 500-odd deceptive transactions where Mr Knight was routinely and repeatedly requested to pay or deposit moneys into the St George account operated by you.  Over time you continued to spin various stories about why there was a delay in providing Mr Knight his moneys.  For instance, one time it was due to water damage caused to the vehicles followed by a flood at the premises where they were being warehoused.  On another occasion you told him that you were not a licensed car trader or registered to be able to supply a government department and the Department of Justice changed the deal to a lease-type agreement.  You also told him that the profits would not be paid until the completion of the three year novated leases on the vehicles. 

15On one occasion you took Mr Knight out to Custom Fleet, Preston to purportedly prove the existence of the fleet.  Right up until the point when Mr Knight reported the matter to the police in late November 2010, you made up stories and told lies to Mr Knight in response to his constant requests when he could expect to receive the moneys he had invested plus his profits.

16On an occasion you handed Mr Knight documents suggesting that you had been paid large amounts of money from finance companies for the purchase and sale of cars.  Those documents, all false in their particulars, were used as method by you to appease Mr Knight and defraud him into thinking his past and future investments were safe.  In reality they were just being used as a means to keep Mr Knight at bay.

17Matters came to a head when Mr Knight exhausted all his assets and used all his savings.  He was impecunious and unable to serve any debts, and as a result of his dire financial circumstances enquiries were made by his wife and son-in-law concerning the deals.  Following further investigations, what was revealed was that your deals were non-existent and were in fact, frauds.

18You were arrested on 19 September 2013 and when interviewed you mainly answered "no comment" to questions that were put to you.  You did acknowledge knowing Mr Peter Knight and to having a cousin whom you believed worked for the Department of Justice and that you had a St George Bank account.

19Mr Knight has lost all his property including his family home, holiday home, commercial property and all his life savings that he had accumulated over his long working history.  He is now severely indebted to friends and family and subsists on a pension and assistance from his own children to survive. 

20Your offending has had a profound effect upon Mr Knight and his wife.  Their victim impact statements were read to the court.  Mr Knight states that his life has been dramatically changed for the worse.  He detailed the necessity to be declared bankrupt and the loss of all his assets.  He had built up a business and operated that with his brother from 1961.  He now lives in a home which has been purchased by his son-in-law some 200 kilometres from Sydney, a long way away from friends and family.  He effectively lost everything he worked so hard to accumulate and there is absolutely no prospect that it will ever be restored.  This whole misfortune has affected his relationship with his wife and his health has deteriorated badly. 

21Mrs Shirley Knight states that when you became involved with her husband Paul, both her life and that of her husband's changed forever.  She stated that her husband truly believed everything was legitimate and that you were conducting proper dealings with Corrective Services in respect to fleet cars and that he would receive his investments plus profits.  She confirms that she and her husband have lost everything in terms of their financial security.  She has received counselling and says her life will never be the same now as she now has a semi-invalid to care for.

22Mr Poursanidis, this offending involves egregious behaviour on your behalf.  You preyed upon the naivety and trust that Mr Knight, your friend, invested in your relationship.  You are a conman who took advantage of his goodwill to fleece him of all his hard-earned assets.  The harm done to Mr Knight is substantial and ongoing.

23In sentencing you there is a real need to impose stern punishment.  This is a very serious example of this sort of offence.  I have had regard to the protracted period of time the offending took place, the substantial amount of money involved and the continuing deceptions involved in your conduct.  The amount received by you was considerable and none of the money has been recovered.  There has been no reparation on your part.

24The offending was attended by a degree of cunning on your behalf.  It was not sophisticated but you did exploit your relationship and told many lies to Mr Knight to keep him believing that the deals were legitimate and that he had a reasonable expectation of receiving his investment moneys plus profit in return.

25During the period of offending you had a gambling habit.  Your gambling was not raised as a mitigating factor, merely that it provided an explanation for your offending.  There is no evidence that you had a lavish lifestyle, and all the investigations undertaken by police have not revealed how all the money was disposed of.  You do not appear to have any assets, so it is likely that the money was just used to maintain your lifestyle over the years, probably to support your various businesses.

26There is a real need for the court to emphasise general deterrence and the court must formally denounce your behaviour.

27A psychological report from Mr Jeffrey Cummins, clinical and forensic psychologist, provided to the court, states that over the time of your offending he believed your mental health in general terms was best described as you suffering from an adjustment disorder with mixed anxiety and depressed mood and features of traumatisation. 

28I note that Mr Farrington, your counsel, eschewed any reliance, however, on the Verdins[1] principles.  There is no link between your purported psychological state and this offending, and I will sentence on that basis.

[1]R v Verdins (2007) 16 VR 629.

29I have had regard to the matters put in mitigation.  You were aged 52 and the offending occurred whilst you were aged between 40 and 47.  You did not have any prior criminal history.  However, a lack of prior convictions is a common feature for white collar frauds.[2]

[2]DPP v Bulfin [1998] 4 VR 114, 131 (Charles JA); Gianello v R (2015) VSCA 205, [27] (Beach JA).

30You have admitted one prior finding of guilt at the Heidelberg Magistrates' Court on 24 March 2009 relating to a false statement made during a liquor licence application.  You were fined $4,000 without conviction.  That offence was committed towards the end of the offending period for the current offence.

31I have taken into account your previous good character but have placed less weight on it having regard to the serious nature of this offending.  Nevertheless, it is still a relevant sentencing consideration.

32I also took into account the fact that you entered a plea of guilty, albeit at a late stage just prior to the trial commencing. 

33Following your arrest on 19 September 2013 you were interviewed and formally charged.  The matter then proceeded by way of a two day contested committal hearing in May 2014, during which the victim, Mr Knight, was cross-examined.  You were then committed for trial and the matter fixed as a long trial, but it resolved to a plea of guilty to the one course of conduct charge on the first day listed for the commencement of the trial on 28 September 2015.

34I have taken into account the matter resolved following negotiations.  I have had regard to the late timing of the plea, but nonetheless the plea does have some utility.  By your plea, you have facilitated justice and your sentence will be discounted accordingly.

35It was submitted that the plea in and of itself ought to be seen as an indication of remorse.  I accept through the plea that you have evidenced some limited remorse.  In your letter addressed to the court you state that you are remorseful and apologetic to Mr Knight.  I also took into account the contents of the letter from your sister Sophia and your friend, Boris Baritakis, in which they noted your remorse.

36Mr Cummins, in his report, also noted that you expressed remorse and regret for your offending behaviour.  You acknowledged to him that you let down the victim of your offending and also let down your family.

37I have had regard to your personal history and background.  You are the only son of Katina and George Poursanidis and have three sisters: Roula, aged 54, who lives in Sydney; Sophia, aged 48, who lives in Melbourne; and Barbara, aged 47, who lives in Melbourne.  You have been twice divorced and have three adult daughters from your first marriage.  Each of your daughters, who range in age from 23 to 28, now live in Melbourne and remain supportive of you.  You are currently single.

38I noted your limited formal education.  You did not complete Year 10.  You initially worked in hospitality before moving into a career as a panel beater and you were involved in the panel beating industry for over 20 years in various businesses, both as employee and owner.  You moved to Melbourne in 2002 and you continued working as an assessor for some seven to eight years.  You also operated several other businesses during the period including Natolia's Greek Cuisine Restaurant, which you operated for several years commencing in 2007. 

39In the past two years you have been caring for your elderly parents. Mr Farrington, on your behalf, sought a finding that because of a combination of particular features, that gaol will mean that there is family hardship.    

40He referred to the case of Markovich[3] and accepted that unless the circumstances are shown to be exceptional, family hardship ought to be disregarded as a sentencing consideration. 

[3]Markovic v Queen [2010] VSCA 105.

41Mr Hannan, the learned prosecutor, rejected this submission.  He acknowledged that by reason of your incarceration it would impact upon your elderly parents and family, but that the circumstances were not sufficient to satisfy the stringent test of family hardship. 

42Overall, I do not consider that this is the case where family hardship is made out.

43I accept both your parents are elderly and in frail health.  Your mother is aged 75 and your father is aged 80.  Both were injured following a motor vehicle accident on 9 June 2013.  Your mother suffered injury to the left side of her body and has difficulties with insomnia, nightmares, high anxiety, hypervigilance and has difficulty leaving her home.  She only does so for medical appointments.

44Up until your incarceration, you lived with your parents providing assistance by driving them both to medical appointments, shopping for them, acting as their interpreter and assisting them to attend social and family functions.  Your mother refuses to enter any vehicle apart from yours saying that she could never get in the same car as her husband with his driving because of her post traumatic stress disorder.

45Dr Arthur Kokkinias, a psychiatrist, confirmed in his letter of 22 September 2015 that he is your mother's treating psychiatrist and is regularly treating her for depression.  He noted she was overly distressed with the prospect of you going to gaol, with the consequential lack of ongoing care and support that she and her husband will experience.

46He postulated that that will impair her overall prognosis and make it difficult, very difficult to continue with ongoing treatment.  He states her overall psychiatric state will no doubt deteriorate because of your imprisonment, and that will then have an effect on her physical state as well.

47Mr Econimou, a psychologist, confirmed your mother's depression and anxiety and he too said if you are incarcerated, your mother's life will change for the worse, that is, he expects she will become more depressed and she will limit her socialisation, family ties and appointments.

48Insofar as your father is concerned, Mr Econimou states that as a consequence of the accident, he suffered moderate to severe pain in the right leg, insomnia, high anxiety and hypervigilance and that he too only feels safe in cars that were being driven by you.  He suffers from post-traumatic stress disorder and associated depression.  Mr Econimou expected your father to may become more depressed following your incarceration.

49In addition, your father has been diagnosed with carcinoma of the lung for which he is having active radiotherapy.  His condition is grave and his life expectancy is limited. 

50It is apparent from reading all the material that was provided at the plea hearing, that your parents' circumstances are extremely difficult.  You have been their carer for some time following the accident, and it is clear that some hardship will be caused to them and it will now be necessary for your family members and other people to share the burden of their care following your incarceration, resulting from your own wrongdoing. None of your sisters were available to act as carers for your parents on a fulltime basis. 

51Inevitably, your father may succumb to his advanced lung cancer, the effect of which is that you will be deprived of the opportunity of supporting him and your mother during the end stages of his life.

52Your continued incarceration will undoubtedly cause hardship to your parents.  The situation naturally engenders sympathy, but I have concluded that the hardship is not exceptional.  Two of your sisters live in Melbourne as well as your adult daughters.  No evidence was led regarding alternative care options supported by your family, or other community organisations.

53I have however taken into account as a mitigatory factor that your parents are in frail health and their difficulties, especially your father's will cause you anguish and I am satisfied that this will cause you to have a more burdensome experience in gaol.  I have taken that into account.

54I have also had regard to what Mr Cummins said when he said that imprisonment may cause you to suffer anxiety.  In the past, you have had mental health problems associated with anxiety and he anticipates your mental health would inevitably deteriorate when you are incarcerated and that the prison authorities should be advised of this in his opinion.

55He noted that you had recently engaged in suicidal thinking and in your self-assessment of your self-esteem, you now consider yourself to be a failure, and a worthless, hopeless person.  In his opinion, all of those aspects of your current mental health render you particularly vulnerable in a custodial sentence, and will make it more onerous for you to serve your time in custody and I have taken that into account.  Mr Cummins' report will be made available to the prison authorities.

56In sentencing you, I must have regard to the course of conduct as is required by s.5(2F) of the Sentencing Act 1991. 

57I must impose a sentence that reflects the totality of the offending and I note the maximum penalty is ten years imprisonment.

58There were a number of decisions referred to in the course of submissions made by the parties that referred to sentencing where high value offending occurred.  Your case can be distinguished from a number of those on the basis that those cases involved continuing enterprise offences and as such, a different maximum penalty of 20 years imprisonment applied.

59As was discussed in the plea hearing, I have to sentence you on the basis of the particular circumstances of your offending and the applicable maximum penalty. 

60Overall, I consider this to be a very serious example of a very serious offence.  You engaged in deceptive conduct over a protracted period, you breached Mr Knight's trust, you exploited him and relieved him of all his life savings, none of which monies have been repaid.

61The sentence to be imposed must deter like-minded individuals from committing similar offending.  Overall, having regard to your conduct whilst on strict bail conditions, I consider that there is a need to moderate specific deterrence, the fact that you have been charged with this serious offending has rendered it more likely that you will not offend in this nature in the future and I consider that you have good rehabilitation prospects.  I must impose just punishment.  Could you please stand now Mr Poursanidis.

62On the one charge of obtaining financial advantage by deception, Mr Poursanidis, you will be convicted and sentenced to seven years imprisonment.  I fix a non-parole period of four years and six months.

63I make the following declaration pursuant to s.6AAA of the Sentencing Act 1991, but for your plea of guilty, I would have imposed a term of imprisonment of eight and a half years, to serve six years non-parole period.

64I make the following declaration of pre-sentence detention.  There are eight days pre-sentence detention and I direct that that be entered into the records of the court. 

65I make the Compensation Order sought pursuant to s.86 of the Sentencing Act.  I order that you pay to Mr Paul Knight compensation in the sum of $4,929,800.00. 

66Finally, I make the order pursuant to s.464ZF of the Crimes Act 1958, Victoria.  I have considered the seriousness of the circumstances of your offending and I am satisfied in all the circumstances, the making of the order is justified and I note the order was by consent.  I consider that the granting of the order is in the public interest.

67The only thing I need to tell you is that because of that last order, a forensic sample will be requested to be taken from you and that involves you being given a little cotton bud to place in your mouth, under supervision of an authorised member of the police force.

68If you do not cooperate, police may use reasonable force to enable that procedure to be conducted.  Do you understand that?  Very well.  All right, so I have signed those orders.  All right, so Mr Poursanidis can be taken downstairs.  We will make sure that the report of Mr Cummins is provided to the Corrections Authority today. Is there anything else?

69MR THYSSEN:  No, Your Honour.

70HER HONOUR:  No.  Very well, thank you.

‑ ‑ ‑