Director of Public Prosecutions v Robert Gulaboski
[2022] VCC 1680
•9 August 2022
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
CR-20-01832
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ROBERT GULABOSKI |
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| JUDGE: | HER HONOUR JUDGE HAWKINS Melbourne 9 August 2022 27 September 2022 DPP v Gulaboski [2022] VCC 1680 |
| WHERE HELD: | |
| DATE OF HEARING: | |
| DATE OF SENTENCE: | |
| CASE MAY BE CITED AS: | |
| MEDIUM NEUTRAL CITATION: |
REASONS FOR SENTENCE
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Subject: Criminal Law – SENTENCING.
Catchwords: 1 charge of obtain financial advantage by deception – guilty verdict – prior criminal history – purported to be vendor of a property – falsified bank documents – low range offending – high degree of moral culpability – offender reimbursed victims post-verdict – reasonable prospects of rehabilitation – moderate risk of re-offending – first time in custody – no genuine remorse – delay – general and specific deterrence – just punishment – denunciation.
Legislation Cited: Crimes Act 1958 (Vic) s82; Sentencing Act 1991 (Vic) s18.
Cases Cited:Gonzales v The Queen [2022] VSCA 110; DPP v Loucas Louca [2021] 1566; DPP v Zaphir [2020] VCC 1746; DPP v Mardirian & Anor [2019]
VCC 523.
Sentence:15 months’ imprisonment and an 18 month Community Corrections Order to commence upon release.
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| APPEARANCES: | Counsel | Solicitors |
For the DPP | Ms G. McMaster | Office of Public Prosecutions |
For the Accused | Mr C. Terry | Galbally Parker Criminal Lawyers |
VICTORIAN GOVERNMENT REPORTING SERVICES
(Prepared by legal transcripts Pty Ltd)
HER HONOUR:
1Mr Gulaboski, on 29 June 2022 you were found guilty by a jury of one charge of obtaining financial advantage by deception.1 This offending took place on 23 March 2016 and arose out of a contract to sell Unit 1, 24 The Esplanade, Williamstown ('Williamstown Property').
2The offence that you have been found guilty of carries a maximum penalty of 10 years' imprisonment.
3You have admitted your prior criminal history.2
Circumstances of Offending
4Given the jury's finding of guilt, the evidence given at the trial forms the factual basis for sentencing. I will provide a brief summary of the circumstances of your offending as follows.
5On 5 March 2016, the victims Gemma Newall and Jacob Maher ('the purchasers') signed a contract to purchase the Williamstown property from the registered owner, 'Peter Parisis' ('the vendor').
6On 21 March 2016, the victims paid a deposit of $165,000 to the real estate agents engaged on behalf of the vendor to secure the purchase of the property.
7On 22 March 2016, the vendor sought the early release of this deposit. The 'Section 27 Notice' attached a letter purportedly from the Bank of Melbourne to the effect that the vendor owed the bank, by way of mortgage, less than 80 per cent of the purchase price of the property. As such the
Crimes Act 1958 (Vic), s82
Plea Exhibit B
purchasers could not refuse the request and $126,248 of the deposit monies were released to a bank account nominated by 'Peter Parisis' on 23 March 2016.
8Mr Gulaboski, you made the following false representations which together, amounted to the deception:
(a)You, by a web of false representations, created the alias 'Peter Parisis' and purported to be him in the sale of Unit 1/24 The Esplanade, Williamstown;
(b)You served the purchasers' agent a false Bank of Melbourne letter, it having been altered from the original letter in the following ways:
(i)The required monthly repayments of the false letter, being $4,383.00, differ markedly to those in the original letter, being $7,020.06; and
(ii)The amount required to discharge the mortgage in the false letter, being
$1,101,957.89, is markedly different to that of the original letter, being
$1,768,025.74.
(c)You also falsely represented that 'Peter Parisis', who was in fact you, had the authority to discharge the mortgage on the Section 27 Statement.
9Both the false Bank of Melbourne letter and incorrect Section 27 Statement induced the purchasers into believing that you had the capacity to discharge a mortgage over the property. They therefore did not refuse the early release of the deposit monies.
10The bank account that the deposit monies were transferred into was controlled by you.
11The outcome of your deception was that you obtained the early release of deposit monies to the value of $126,248.90, to which you were not entitled.
Nature and Gravity of Offending
12Your scam took considerable effort to put into place. You utilised two false licences; a false address and obtained a loan over the Williamstown property in a false name. You used this false identity to engage a conveyancer to execute the settlement and opened a bank account in the second identity to enable the fraud to be completed. You also used fraudulently altered bank documents to misrepresent the outstanding mortgage and monthly payments, inducing the purchasers to release the deposit. Almost the entirety of the proceeds of your deception were withdrawn in a period of some 24 hours.
13Your offending netted a profit of over $125,000. This is not insubstantial, although the prosecution concede is not as high as some cases seen in this court. Your elaborate and persistent deception demonstrates a high degree of moral culpability. You concede this, but counsel on your behalf, submits that your conduct is confined to one transaction, and you did not have a relationship of trust or a fiduciary relationship with the complainant, as is often the case in offending of this nature. As such, Mr Terry submits that such aggravating features are absent.
14When settlement was delayed, the purchasers moved into the property under a licence, and when it became evident that settlement would not occur, had to engage in the stressful and costly process of engaging a lawyer to attempt to recover their money. They ultimately were reimbursed the majority of their lost deposit but faced a shortfall of $26,137.59. They also lost the roof over their heads. The victims did not make victim impact statements. I note that you have agreed to make recompense of this amount, and the plea was adjourned to
facilitate your making of this payment. I am told that you have now made full recompense of that shortfall to the victims in the sum of $26,137.59.
15Although a significant sum for the victims, the quantum of $126,248.90 sits at the lower end of the scale of offences of this type that come before the County Court.
16In respect of victim impact I do note that it appears that at least one of the purchasers has joined the link today and I acknowledge their presence online.
17On balance I consider your offending is a low range example of such offences brought before this court.
Personal Circumstances
18Mr Gulaboski, your father immigrated from the Republic of North Macedonia to Australia in 1969 and your mother in 1976. You were born that year and your brother Tony in 1979. Your childhood was spent moving between Macedonia and Australia and you attended school in both countries. You completed high school at Keilor Downs High School at the end of 1994 and began working in hospitality.
19You went into business with your uncle in 1999 and later with your brother Tony.
You ran hotels until December 2008, when you opened 'Banque' restaurant in Williamstown with your brother, Maggie Talevski and another shareholder. That business ran for three years until December 2011.
20In late 2011, you started redeveloping properties full-time with your brother Tony.
You completed projects around Melbourne.
21Mr Gulaboski, I am told you first met your wife Maggie Talevski when you were 18 and started a relationship with her the year after Banque opened. You were married in January 2012 and have two children currently aged 10 and 7 years.
Sentencing Considerations
22Mr Gulaboski you were diagnosed with a tectal plate cavernoma in 2019 after experiencing dizziness and double vision. Your neurosurgeon, Mr Damien Tange, has advised against surgical intervention and continues to monitor your condition.3
23General practitioner, Dr Thien Nguyen,4 states that you suffer from anxiety and panic attacks for which you previously received counselling about cognitive behavioural therapy. You are not prescribed anti-depressants or anti-anxiety medications. In addition to your cavernoma you also required surgery for a mandible fracture on 9 August 2012.
24You report that you have never taken illicit substances or been a heavy alcohol drinker. You were referred for assessment for a Community Corrections Order and subsequently referred for a Mental Health Advice and Response Service or Forensicare ('MHARS Report') assessment as you had disclosed a history of anxiety and depression. The MHARS report states that you have not previously accessed a mental health care plan or been assessed by Forensicare. The author noted that you did not present as mentally unwell and appeared to have an adequate insight into your offending. You stated that you were keen to engage with a psychologist to address your anxiety regarding low self-esteem. It is unclear why the long-term counselling described by Dr Nguyen had not previously addressed these issues, nor why you have not previously accessed a Mental Health Care Plan to assist you to engage with a psychologist.
25The Crown submits that your prospects of rehabilitation are low, however it is clear from the Forensicare assessment, that targeted psychological treatment from a
Plea Exhibit D2
Plea Exhibit D1
registered psychologist would be of benefit to you. Coupled with your post-verdict repayment of the loss sustained by the victims of your offending (which I will discuss below in a moment), I assess your prospects of rehabilitation as reasonable.
26I note that the Community Corrections assessment assessed you as posing a moderate risk of re-offending.
27Mr Gulaboski you have several relevant priors in the Magistrates' Court, spanning a three-year period during which this offending occurred. Those prior matters also involve deceptions to aid your financial advantage. However, you have only ever been sentenced to financial penalties and this will be your first time in custody.
28Mr Gulaboski, you confined the issues at trial and put the prosecution to its proof on the issue of identity only. This assisted to reduce the length of the trial. The issues of deception or loss to the victims were never in issue and the victims were not cross-examined.
29Whilst you did not demonstrate any remorse for your actions prior to trial, you have since made full recompense of the deficit sustained by the victims. Your post-verdict actions show some level of insight and contrition but fall short in my view, of a demonstration of true remorse. Your repayment lessened the impact of your offending on the victims; however I am told that they do still remain out of pocket for significant legal costs they incurred.
30It appears that you are willing to pay up when caught out but will do what you can to avoid payment of your financial obligations. Despite this, post-verdict repayment is rare and is an important matter to be taken into account in mitigation, even in
circumstances where it is not a true demonstration of remorse. I accept that it indicates you do have some capacity for rehabilitation.
31I was helpfully assisted by counsel regarding what weight to place on your repayment.5 From the single case identified on point, that of Gonzales v The Queen,6 it is clear that a sentencing court can properly take into account the repayment of monies to a complainant as a significant matter in mitigation, even where the court rejects that the repayment indicates remorse.
32Your proceedings have spanned the entire COVID-19 pandemic and accordingly there has been a delay of some three years between the date of being charged and coming to trial.
33The system of property transactions in this state is based upon the exchange of documentary evidence. You have deliberately exploited this reliance. You must be justly punished for your scam and denounced in the eyes of the community for your behaviour. Your sentence must be sufficient to deter you and others from attempting such scams in the future.
34Ultimately, general deterrence, specific deterrence, just punishment and denunciation all have a role to play in your sentence. The court must impose a sentence which is proportionate to the gravity of the offence, considering all the circumstances.
35Mr Gulaboski, you concede that a term of imprisonment is the only satisfactory way to meet these sentencing purposes. Mr Terry on your behalf submits that the principle of parsimony and these sentencing purposes may be satisfied by way of
Defence addendum submissions on repayment of compensation dated 20 September 2022 and Crown further submissions dated 21 September 2022
[2022] VSCA 110, although I observe that this matter is somewhat different on the facts to Gonzales
in a number of key regards
a sentence comprising a term of imprisonment followed by your release on a Community Corrections Order with appropriate conditions. Following repayment to the victims, the prosecution did not submit that such a sentence was out of range.
36I have regard to current sentencing practices for offences of this kind. I particularly note those matters were pleas of guilty which occurred during the pandemic and note those that do not. I have specific regard to the cases to which I was referred.7
37Ultimately, Mr Gulaboski, yours was sophisticated offending, but spanned just one transaction and comparable to other cases, was not of significant quantum and will be your first sentence of imprisonment. Taking these factors and all other relevant matters into account, I am of the view that the sentencing objectives can be met in the current climate by a sentence comprised by a term of immediate imprisonment followed by release onto a Community Corrections Order with appropriate conditions.
Sentence
38Robert Gulaboski, I sentence you as follows:
39On Charge 1, obtain financial advantage by deception you are convicted and sentenced to 15 months' imprisonment.
40Pursuant to s18 of the Sentencing Act 1991, the period of 90 days of pre-sentence detention (not including today), is hereby declared as having already been served in respect of this sentence and I order that such declaration and its details be entered in the court record.
DPP v Loucas Louca [2021] 1566; DPP v Zaphir [2020] VCC 1746; DPP v Mardirian & Anor [2019] VCC 523
41At the conclusion of your period of imprisonment Mr Gulaboski, you are to be released onto a community corrections order for 18 months with the following conditions:
(i)You will be under the supervision of a Community Corrections officer for 18 months, which means that you are required to be supervised, monitored and managed as directed;
(ii)You are required to undergo mental health assessment and treatment as directed;
(iii)You are required to perform 200 hours of unpaid community work over the period of the order. I direct that 50 hours of your participation in mental health treatment may be counted to reduce the community work I have ordered.
42In addition, you must not commit any other offences punishable by imprisonment during the order. You must report within two working days of your release from custody to the Broadmeadows Community Corrections Centre. You are required to advise your supervising Corrections Office within two clear working days of any change of address of where you are living and or working. It is a term of all Community Corrections Orders that you must submit to visits as directed and you must obey all instructions and directions of your Corrections officer. You are not able to leave the State of Victoria without prior permission of your supervising Corrections officer.
43If you contravene this order by either committing further offences, or by failing to comply with the conditions then you can be brought back before this court, fined and resentenced.
44Do you have any questions about this order, Mr Gulaboski?
45OFFENDER: No, Your Honour.
46HER HONOUR: Do you consent to being placed on this order, Mr Gulaboski?
47OFFENDER: Yes, Your Honour.
48HER HONOUR: Thank you Mr Gulaboski, you have indicated your oral consent to this order, which I direct to be entered onto the court record.
49HER HONOUR: Otherwise close the court.
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