Director of Public Prosecutions v Sakipon
[2024] VCC 1278
•21 August 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00598
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| BUNSIE SAKIPON |
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JUDGE: | HER HONOUR JUDGE DALZIEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 9 August 2024 | |
DATE OF SENTENCE: | 21 August 2024 | |
CASE MAY BE CITED AS: | DPP v Sakipon | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 1278 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Obtain property by deception; obtain financial advantage by deception; refund scam
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited:DPP v Bunsie Sakipon [2011] VCC 307; R v Sakipon – Sentence - unreported County Court of Vicotria 13 September 2001
Sentence: 7 seven years and 7 months' imprisonment with a non-parole period of six years
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr J. Hurley | Stary Norton Halphen |
HER HONOUR:
1Bunsie Sakipon, you have pleaded guilty to seven charges of obtaining financial advantage by deception and four charges of obtaining property by deception.
2There are 10 victims, each of whom was a client of yours, in your work as a personal trainer.
3In August 2015 you were released on parole. You were in your later 40s. You found work as a personal trainer, and in 2016 you were working at Zap Fitness, in Richmond. You were going by the name of Tyson Kosakul. Each of the victims knew you by that name, or as Tyson.
4The prosecution filed a detailed Summary of Prosecution Opening.[1] The summary which I will give now is an abbreviated version of that document.
[1]Exhibit P1 – Amended Summary of Prosecution Opening dated 8 August 2024
Circumstances of Offending
Charge 1 – 30 September 2016 – 8 February 2018 – OFABD - $14,720
5In late September 2016 one of your clients at Zap Fitness introduced you to his brother, Mr Chua, who agreed to pay you for personal training. Part of this initial agreement included Mr Chua paying you $500 for 'insurance' on the basis that you would refund him that amount. He gave you this $500 on 30 September 2016. This is the first payment which is the subject of Charge 1.
6In early October 2016 you discussed further payments by Mr Chua to cover his and his brother's personal training with you. On 12 October 2016 he paid you a further $3,000, which is not part of the charge. The next day, you told him he needed to pay a further $3,000 'for accounting purposes', and that this would be refunded immediately. He paid the money, but you never repaid it (Charge 1 transaction 2).
7In late October 2016 you told Mr Chua that you needed a further $3,000 to 'balance the books' and that you would refund him that amount immediately. You acknowledged that you still owed him the $3,000 from earlier that month. Mr Chua paid you $3,000 on 28 October 2016, and the same amount again on 31 October 2016, both payments were made on the basis that you would repay the sums immediately (Charge 1 transactions 3 and 4). By that time you had promised, but failed, to refund him $9,500.
8On 6 November 2016 you again acknowledged the debt, but said you needed a further $2,500 in order to be able to re-pay him. Mr Chua transferred you $2,500 on 6 November 2016, on the understanding that you would also refund that amount to him (Charge 1 transaction 5).
9In December 2016 you did re-pay $3,500 to Mr Chua. That was the only repayment you made to him.
10Over the year between December 2016 and December 2017 Mr Chua continually tried to recover his money, with you putting him off with various excuses.
11
On 11 December 2017 you spun a story to Mr Chua about repaying him, and that he needed to give you $500 in order to be re-paid $1,000. Mr Chua transferred $500 to you on this basis (Charge 1 transaction 6). You continued to deal with
Mr Chua on this basis, getting him to transfer you more funds which are not the subject of the charge. On 20 December 2017 you put time pressure on Mr Chua to transfer a further $500 to you, on the basis that you could then refund him $14,490.[2] He transferred $500 to your account (Charge 1 transaction 7). No money was repaid.
[2]This sum includes amounts paid by Mr Chua, that are not the subject of charges.
12Over later December 2017 you told Mr Chua that you were in Sydney, which was not true, again telling him to transfer money so that you could organise repayment. You asked him to give you money for airline fares, telling him that if he did so you would withdraw $8,000 to repay him. This was also not true. On 24 January 2018 Mr Chua did transfer $980 to you, but you made an excuse and did not repay him the money (Charge 1 transaction 8)
13On 29 January 2018 you again told Mr Chua that you were in the process of arranging a refund, this time for $18,000. You claimed a previous transfer by him had not processed, and said you needed a further $540 for the money to be released. Mr Chua transferred $540 to you (Charge 1 transaction 9).
14Over late January and early February 2018 you maintained the fiction that you were in Sydney, when you were in fact in Melbourne, and continued to hold out the prospect of imminent repayment to Mr Chua. You persuaded him to transfer various sums of money to you on the basis that you needed petrol money to drive from Sydney to Melbourne, to give him his money. None of these amounts are part of the charge.
15On 8 February 2018 you persuaded Mr Chua to transfer a further $200 to you, on the basis that this would facilitate you accessing the money to repay him. This was transaction 10 founding Charge 1.
16Following that transaction you contacted Mr Chua again to seek further transfers of money but he did not comply.
Charge 2 – 1 December 2016 – 10 May 2017 - OPBD - $16,000
Charge 3 – 28 December 2016 – 28 February 2017 – OFABD - $47,400
17The victim of these charges is Mr Tang. He was 19 when he made his statement in mid-2017, and in Year 12.
18In December 2016 Mr Tang started personal training with you and agreed to pay you for four months’ training. Later that month you discussed the rate for 10 months’ training and it was agreed that he would pay you $5,500 on top of the $3,800 already paid, for this training. Mr Tang paid you $2,000 cash and $3,500 by bank transfer. You told him that he would get $500 back at the end of the contract.
19After he had made these payments you told Mr Tang the $3,500 had not cleared. You told him 'the company' would not accept a partial payment and he had to pay the full amount in cash. You offered to further discount his training fee and offered free training for his mother. As a result of these and other inducements, Mr Tang paid you $3,500 cash. (Charge 2 transaction 1).
20Also in late December 2016 you persuaded Mr Tang to loan you $1,500, telling him it was to purchase gym equipment. You did not intend to and never did repay him this money. (Charge 2 transaction 2).
21On 28 December 2016 you contacted Mr Tang and told him your company had only received $3,500, and that Mr Tang still owed you $5,500. You told him that this amount would be added to the funds he would be refunded, and sent him a photo of a cheque in the amount of $81,000, saying you would repay him from the funds from that cheque. These representations persuaded Mr Tang to transfer $5,500 to you (Charge 1 transaction 1).
22You then told Mr Tang that the payment he had transferred on 28 December would take two to three days to clear and asked him to pay the same amount in cash, on the basis that this also would be refunded. Mr Tang arranged for a friend to deposit $2,000 into your account and he himself transferred $3,500 to your account. (Charge 3 transactions 2 and 3).
23On 5 January 2017 Mr Tang contacted you, seeking his refund. You told him you were short of cash because you were purchasing a property (which was not true) and persuaded Mr Tang to loan you $12,000 to assist with the deposit for the property purchase. He loaned you that sum.
24A week later, having received no money from you, Mr Tang called you up and told you you owed him $46,800. You asked him if he wanted to become your business partner, offering this on the basis that he would give you a further $50,000. In reliance on this representation Mr Tang paid you $35,000 by bank transfer, on the understanding that he would pay you a further $15,000. (Charge 3 transaction 4). You showed him a document which purported to be a contract for the purchase of a business interest.
25In February 2017 you contacted Mr Tang, telling him you were having tax problems. You said you had been unable to complete the business partnership contract as he had only paid $35,000. You told him if he could pay the $15,000 the problems would be solved. He was unable to pay this amount, having exhausted his savings. You told him that you were trying to get an introduction to a loan shark and needed $1,400 to facilitate this. Based on that representation, on 7 February 2017 Mr Tang loaned you a further $1,400 (Charge 3 transaction 5).
26
On 13 February 2017 you persuaded Mr Tang to loan you a further $6,500.
Mr Tang, having no money left, borrowed this amount from a friend, and gave it to you on the basis that you would repay it within a week. You did not do so. (Charge 2 transaction 3).
27On 20 February 2017 Mr Tang confronted you about the money you owed him. You told him that if he loaned you a further $3,000 you would use this to pay the loan shark, who would then provide a loan to repay all the money owing to Mr Tang. Mr Tang was thus persuaded to loan you a further $3,000, which you did not repay (Charge 2 transaction 4).
28On 27 February 2017 you repaid Mr Tang $500. That is the only amount of money you ever repaid him.
29On 8 May you borrowed more money from Mr Tang, saying it was for legal fees, and then two days later you tried to borrow a further $3,800. He did not have the money and so he borrowed $1,500 from a friend and gave it to you on 10 May 2017 (Charge 2 transaction 5).
30In June 2017 Mr Tang's parents confronted you about the money. You promised to pay it back, but you have never done so.
Charge 4 – 3 May 2017 – OFABD - $3,200
31The victim of this charge was a personal training client of yours, at Zap Fitness. She began to train with you in December 2016, at no charge. In April 2017 she agreed to pay you $1,900 for a 12-week training program. She paid you this amount.
32Once she had done so, you told her you needed to show that you had a client on your books for 12 months of training, and asked her to pay you a further $5,000, on the basis that you would refund that full amount.
33The victim, Ms Mukerjee, told you that she did not have that amount of money, but offered to pay you $4,000 on the basis that it would be refunded. You agreed and on 3 May 2017 she transferred that sum to you.
34Between May and November 2017 Ms Mukerjee continuously reminded you about refunding her. You did not repay her. Finally, in May 2018, you did repay her $800, but you have not repaid any of the balance.
35The charge is put on the basis that when she transferred the $4,000 to you, you did not in fact intend to repay her. The amount of the charge has been reduced by the $800 which you did repay her.
Charge 5 – 30 May 2017 – OFABD - $850
36The victim of this charge, Ms Zammit, was also a personal training client of yours at Zap Fitness in Richmond. She agreed to engage you for eight weeks of personal training, three times per week, for $1,600. She transferred this amount to you on 11 April 2017.
37In late May 2017 you told Ms Zammit that you were transferring to another gym in Richmond, Anytime Fitness, and you offered to train her there. She did not want to change gyms, and you agreed that you would refund her the balance of her payment, the amount being $1,040. You later negotiated this repayment down to $850.
38The charge date is 30 May 2017, and is put on the basis that whilst you offered to refund Ms Zammit you did not intend to repay that money to her.
Charge 6 – 14 June 2017 – 1 August 2017 – OFABD - $7,670
Charge 7 – 1 August 2017 – OPBD - $3,170
39The victims of Charges 6 and 7 joined Zap Fitness, in Richmond, in late 2016. They met you in February 2017 and engaged you as a personal trainer.
40On 14 June 2017 you told the victim of Charge 6, Mr Krygger, that you were fighting in a boxing match in Japan and encouraged him to bet $2,000 on your fight. You told him it was a sure thing, and he would get a payout of $14,000.
41Based on these representations Mr Kyrgger transferred $2,000 to your bank account (Charge 6 transaction 1). The next day you told Mr Krygger that your opponent had had to pull out of the fight due to injury, but if you travelled to Japan and signed a contract stating you had won the fight it would be paid out as a win. Based on these representations, Mr Krygger transferred a further $2,500 to you (Charge 6 transaction 2).
42You had become aware that Ms Goldspink’s daughter was in the process of treatment for cancer. You expressed understanding and sympathy to her, saying that you understood as your sister had died of cancer.
43On 1 August 2017 you offered to train Mr Krygger and his partner Ms Goldspink, the victim in respect to Charge 7, free of charge. You told them that if they each transferred you $3,170 you would refund that full amount to them. You attended Ms Goldspink’s workplace in Carlton, where she paid you $3,170 in cash (Charge 7).
44Mr Krygger transferred $3,170 to your bank account on 2 August 2017 (Charge 6 transaction 3).
45The basis of Charge 6 is the two payments made by Mr Krygger for the purported boxing match bet, and the later payment for training paid on the basis that you would refund him the $3,170. When Mr Krygger asked you to give him the $4,500 back, you made various excuses and then ceased to communicate with him. By your plea you acknowledge that you deceived him about each of these transactions.
Charge 8 – 8 August 2017 – OPBD - $900
46Ms Olsen is the victim of Charge 8. She joined Anytime Fitness in Richmond in May 2017. In July 2017 she met you there, and you offered personal training at the rate of eight weeks, three sessions per week, for $550. She agreed and paid you that amount.
47On 8 August 2017 you told Ms Olsen that if she paid a further $1,900 up front the full amount would be refunded, and you would provide training until the end of January 2018. Your explanation to her was that this payment was for tax purposes. You provided a contract to her, to sign, but then did not give her a copy. In reliance on these representations Ms Olsen transferred the $1,900 to you.
48Despite numerous requests you failed to refund that sum to her. Eventually, when she told you she needed money to live and pay her car insurance you did refund her $1,000. You told her that she would only get the balance, $900, if she did not report you to the police.
Charge 9 – 8 August 2017 – 22 August 2017 – OPBD - $8,000
49The victim of Charge 9 was also a personal training client of yours, at Anytime Fitness in Richmond. You offered her three months of training, at no cost, on the basis that she would transfer $2,500 to you, and you would fully refund that amount once your tax had been processed. On 11 August 2017, in reliance on these representations, Ms Dawson transferred $2,500 to you (Charge 9 transaction 1). As with Ms Olsen, you provided a contract to her to sign, but you did not give her a copy.
50Ten days later you told Ms Dawson that she was a special client, and offered to train her at no cost for a year. You asked her to pay you $5,500 on the basis that you would fully refund that amount once you had received your tax return. She believed you and on 22 August 2017 transferred a further $5,500 to your bank account (Charge 9 transaction 2).
51You did not repay her any of that money, having had no intention of doing so on each occasion when you obtained the funds from her.
Charge 10 – 27 September 2017 – 12 October 2017 – OFABD - $3,700
52Ms Hendrata, the victim of Charge 10 was also offered personal training, at the rate of $250 per session, for herself and a friend. She and her friend started training with you in August 2017.
53After three or four sessions you told Ms Hendrata that you would continue to train her at no cost, but that you needed to show the gym that you had clients on your books. You asked her to transfer $1,900 to you and told her you would refund that amount immediately.
54Acting on those representations on 27 September 2017 Ms Hendrata transferred that amount to your bank account (Charge 10 transaction 1). Her friend declined the offer.
55You then asked Ms Hendrata to pay a further $1,800, again telling her it would be fully repaid. She transferred a further $1,800 into your account on 12 October 2017 (Charge 10 transaction 2).
56You then repeatedly cancelled training sessions and never provided the refund you had offered. When Ms Hendrata spoke to you, you made various excuses as to why you could not repay her, as you had agreed.
Charge 11 – 8 November 2017 – OFABD - $5,000
57The victim of this charge joined Anytime Fitness in May 2017. You offered to provide personal training to her, but she declined. You got to know her and you became friends.
58On 6 November 2017 you invited her for coffee, in Prahran. She and you met and you discussed personal matters.
59Two days later, you had coffee with her again, and then you invited her to your flat, in Richmond. You told her that you had an opportunity for her to make some money. You said you were arranging a bet on a UFC fight, and that already nine other people had put in $10,000 each. You told the victim that if she invested $10,000 she would be guaranteed to get at least 110 per cent back.
60The victim of this charge explained that she was opposed to gambling. You then changed your pitch, saying that what you were offering was a share in a group of people funding the fight itself.
61When the victim said that she did not have $10,000 you offered a share at the rate of $5,000. You told her that the return on her $5,000 would be $30,000. Based on your representations the victim transferred $5,000 to your account on 8 November 2017.
62The next day she had second thoughts. She asked you to refund the money. You told her you could not as it had already 'gone to the USA'. You promised to return her money but said it would have to be after the fight.
63She contacted you again and again trying to get her money. You did not respond to her until 15 November 2017. You admitted the money had not gone into the fight, and again promised to repay her. You have not repaid her any of that money.
Personal Circumstances
64You were born in Thailand in 1969 and are now 55 years old. Your parents separated when you were young and your relationship with your biological father has been limited.
65Your mother has re-partnered. She and your stepfather moved to Australia, bringing you with them, in 1980 when you were 12 years old.
66You had four full brothers and four full sisters, as well as a half-brother. I was told that one of your sisters passed away in 2014, and that you were not able to attend the funeral as you were in custody. In that same year, your mother passed away at age 71 due to a stroke. You were given permission to attend your mother's funeral.
67The depositions include a Certificate of Australian Citizenship dated 29 March 1982, in the name of Aroon Fees. The name you gave the police when you were interviewed was Tyson Bunsie Sakipon Kosakul. The information I have been provided with shows you have used the names Bunsie Sakipon, Bunsie Gosakool, Bunsie Kendres, Bunsie Kosakul, Bunsie Aroon, Tyson Kosakul, Tyson Nakajima, and other names. The victims of the offending for which I will sentence you knew you as Tyson, or Tyson Kosakul. You told Mr Cummins, in 2011, that you used false names when dealing with victims, in order to deceive them.[3]
[3]Report of Mr Cummins 8 February 2011, page 4 (“Cummins 2011”)
68You completed Year 12 and went on to complete an economics degree at Monash University.
69As a teenager you had joined a gym, developing an interest in fitness. You worked in the fitness industry in your 20s as a fitness instructor. It is not clear whether you possess any qualifications in fitness or first aid - the certificates from Fitness Australia and St John's Australia which you provided to Anytime Fitness were forged.[4]
[4]Depositions 69, 70
70I have been told that during your life you have experienced three significant romantic relationships. You have a 28-year-old son with one of your former partners. You have not had contact with your son in approximately eight years.
71More recently you have been in a romantic relationship for two years with a woman who lives in Sydney. I am told that she is your only support in the community. Due to your repeated offending your other friends and family members have ceased contact with you.
72You told Mr Cummins that you had been travelling around Australia since your arrest in 2018, and you could not understand why the police had not found you earlier. Your counsel told me that you moved to Queensland in late 2020, to find work, and then you moved to Sydney. You worked in cafes and gyms. Your partner lives in Sydney and you intend to move to that city upon your eventual release.
73Whilst on remand you have worked as a food billet. You have limited outside contact and no contact with your family. Your partner lives interstate, although you speak to her regularly.
Psychologist’s Reports
74
I was provided with two psychologist reports, both by Mr Cummins. He assessed you on 5 July 2024 and had previously assessed you in 2011. You told
Mr Cummins in 2011 that you had participated in programs to treat problematic gambling.
75In 2011 Mr Cummins assessed you as suffering from Dysthymic Disorder and a gambling addiction. He further stated that you displayed a narcissistic personality style, and that you reported symptoms of depression and anxiety.
76In the 2024 interview with Mr Cummins, you presented as moderately depressed. You regretted the loss of contact with your son, who seems to have ceased contact with you following your most recent prison sentence. Another factor linked to your present depression is your awareness that you are facing further time in custody.[5]
[5]Report of Mr Cummins dated 24 July 2024, [41], [49] (“Cummins 2024”)
77Mr Cummins in his most recent report considered that you have Borderline Personality Disorder, which is characterised by 'a pervasive pattern of instability of interpersonal relationships, self-image and affects, and marked impulsivity, beginning by early adulthood and present in a variety of contexts.'[6] Mr Cummins considered that you presented with some narcissistic traits, but that you did not meet the criteria for a diagnosis of Narcissistic Personality Disorder.
[6]Cummins 2024 [40], [47], [48]
Prior Convictions
78In September 2001 you were sentenced in this court by Judge Cullity for blackmail, obtaining property by deception, theft, and possession of property suspected of being the proceeds of crime. The victims were your personal training clients. You received a sentence of four years in total with a non-parole period of two years and nine months. Judge Cullity said:[7]
You are described as a person who appeared to be very friendly and convincing. You certainly made full use of those characteristics in the furtherance of your criminal activity. Further, the fact of a very fertile, inventive mind is fully demonstrated chapter and verse by the convincing lies you told to effect Counts 1 and 2. You engaged in despicable conduct without the slightest care nor concern for its detrimental effect on the victims.
[7]R v Sakipon – Sentence - unreported County Court of Vicotria 13 September 2001 (“Judge Cullity Sentence”) page 2
79In October 2001 you were sentenced to other dishonesty offences, in the Magistrates’ Court, and received a total effective sentence of eight months.
80In March 2011 you were sentenced by Judge Chettle to a total of seven years' imprisonment, with a non-parole period of five years. Across two indictments you pleaded guilty to 32 counts of obtaining property by deception and 17 charges of obtaining a financial advantage by deception. There were 10 victims, with the total value of the frauds being close to $300,000. Judge Chettle summarised your offending as follows:[8]
You repeatedly asserted that you were able to make money from fighting competitions in Asia and when you induced the victims to invest in such non-existent fights, you thereafter manufactured false stories to explain why the funds were not forthcoming and in order to obtain further funds. You manufactured false documents and displayed false cheques for inflated amounts to embroider your deceptions and offered manufactured false stories about the need to pay fines, corrupt police officers and other individuals in order to get more money from your victims. You enlisted the aid of associates to pretend to be people such as judges and bank officers, and to make fictions you created appear more credible. In summary, you repeatedly told gross lies, manufactured elaborate stories and repeatedly deceived people who you persuaded to trust you.
[8]DPP v Bunsie Sakipon [2011] VCC 307, [4] “Judge Chettle Sentence”
Procedural History
81The next part of my sentence I have set out the procedure history which I will not read out now, and I will move on to the relevant sentencing considerations, the first being the plea of guilty and remorse.
Relevant Sentencing Considerations
Plea of Guilty and Remorse
82You have pleaded guilty, with the matter resolving at an early stage. In so doing you have acknowledged your guilt for each charge. You are entitled to a reduction in your sentence due to the significant utilitarian value of your pleas.
83I do not accept, however, that your pleas are an indication of any real contrition. You did express regret and some remorse for your offending - Mr Cummins wrote:[9]
At interview I specifically asked him whether he appreciated he was pleading guilty to offending which indicated he had befriended clients and then financially exploited them. He stated – 'I'm pleading guilty. I’m very sorry for what happened - I feel very bad. I never intended to not repay the monies.'
[9]Cummins 2024 [34]
84At the same time you maintained to Mr Cummins that your intention was to pay the money back to your clients, and you blamed the filing of charges for preventing this. You justified yourself, saying it was normal to ask clients to pay in advance and give discounts for doing so.[10] Your explanations to Mr Cummins traverse your pleas and furthermore fail to have regard to the fact that between your interviews, in September 2017 and February 2018, and your arrest in November 2023 you apparently made no effort to repay any of the victims, nor am I aware of any offer to do so. I do not accept your excuse that you were told that you could not have contact with your former clients. If you had genuinely wanted to repay them there were ways that that could appropriately have been done.
[10]Cummins 2024 [30]-[33]
85Mr Cummins also said 'In my opinion he displayed minimal victim empathy. In this regard I am aware his offending involved him establishing a rapport with clients and then financially exploiting them.'[11]
[11]Cummins 2024 [39]
86I therefore accept that you have acknowledged your offending, saving the cost and time of a trial, and saving the victims the stress of giving evidence, particularly after the long passage of time since the offending. I do not accept that you have any real appreciation of or regret about the harm that you caused the victims, nor any desire to atone.
Reasons for offending
87Judge Cullity was told that after the breakdown of a relationship with a partner in around 2000, your mental health declined, and you took up gambling at the casino, TAB, and pokies venues, and you fell into debt.[12] In 2001 Judge Cullity was told that 'you no longer have the urge to gamble'.[13] You gave a similar explanation to Judge Chettle in 2011.[14] As Judge Chettle said, even if that is true, it does not mitigate your offending.
[12]Judge Cullity Sentence 1 - 2
[13]Judge Cullity Sentence 5
[14]Judge Chettle Sentence [8]-[9]
88Judge Chettle was told that six to eight months after you were released on parole from the sentence imposed by Judge Cullity, you were having financial trouble and 'found yourself re-offending'.[15] He was told that you had since ceased gambling and attended Gamblers Anonymous.[16]
[15]Judge Chettle sentence [10]
[16]Cummins 2011, page 2.
89This year you told Mr Cummins that the offending for which you are now being sentenced was not related to gambling, unlike your previous offending. You told him that you had stopped gambling 10 years ago. Your counsel submitted that after you were released 'it was not long before [you] owed money to people who had provided assistance to [you]', and you used the funds from the offending to pay these people.[17]
[17]Defence Outline of Submissions [8]
90You also told Mr Cummins that you had been betting on boxing fights during the period of the offending. You did not acknowledge to Mr Cummins that this is a form of gambling. You maintained, as you have in the past, that you owed large amounts of money to loan sharks.[18]
[18]Cummins 2024, [22]-[23], [35]
91It is well established that when gambling is the motivation for offending, this is not mitigating. You appear to have an entrenched gambling problem, about which you have limited or no insight. If your offending was not motivated by gambling, which you maintain, I do not accept that defrauding people, to repay other debts, is in any way mitigating. Whilst there is no evidence of you living a lavish lifestyle, there is no evidence at all where the money went.
92Regardless of your motivation for this offending, it is clear from your history that you habitually turn to deceiving and defrauding others as a way to make money.
Prospects of Rehabilitation
93In view of your history of offending, even after serving significant sentences of imprisonment, your lack of empathy, insight and remorse, I consider your prospects for rehabilitation are poor.
94Whilst no further offending has been alleged to have occurred, since February 2018, given the attitudes you expressed to Mr Cummins, I do not take the lack of other offending in that period as evidence that you are a reformed man.
Gravity of Offending
95Your counsel accepted that the offending was serious, involving 'repeated and flagrant lies told to persons who placed their trust in' you.[19] He submitted that whilst the offending was pre-meditated and protracted, it was not particularly sophisticated.
[19]Defence Outline of Submissions [9]
96Clearly some of the charges are more serious than others.
(a) Charge 1 spans 15 months, from September 2016 to February 2018. There was a break in that period of time between November 2016 and December 2017 during which the victim continued to try to recover his money, with you putting him off. The amount of money you obtained in late 2017and early 2018 was much less, amounting only to $1,720 of the $14,720 which is the subject of this charge.
(b) Charge 2 covers five separate payments to you by the victim, totalling $16,000 over the period December 2016 to May 2017. The victim in that charge, and in Charge 3, was only 18 to 19 years old, and finishing high school;
(c) Charge 3, whilst spanning only December 2016 to February 2017 involves much more money, $47,400, which you deceived this young man into giving you.
97All of the charges involved you preying upon people who had come to know you and have some trust in you. Whilst it seems strange, in retrospect, that the first two victims continued to give you money, despite your failure to repay most of what you owed them, this seems to be part of your success as a fraudster – you find targets who can be deceived, and you are, to quote Judge Chettle, a 'glib and fluent liar'.[20]
[20]Judge Chettle Sentence [5]
Victim Impact
98I was provided with two victim impact statements. Each speaks of the shock and sense of betrayal when they realised that you had deceived them, and the ongoing impact of your breach of their trust in you. You learnt personal information about these women when training them, and were aware of the issues facing them. One had a child going through cancer treatment, which you told her you could empathise with, due to your sister's death. She wrote, in her victim impact statement:[21]
It took a long time to get over being ripped off financially, but more than that, trusting someone when at one of my lowest times in life, he abused the emotional and vulnerable state I was in to benefit himself and did so knowing exactly what I was going through and could clearly see I was just holding things together and his only thought was for himself.
[21]VIS L Krygger
99I expect that all of the victims would have experienced shock, disbelief and then distress as a result of your offending, as well as financial damage. Even where the sum of money you deceitfully obtained was low, compared to some of the other charges, the impact on the victims would have been real.
Totality
100When considering the orders for cumulation or concurrency, it is necessary to appreciate the totality of the offending, so as to ensure that the total effective sentence, and non-parole period, adequately reflect the entirety of the offending.
101To that end, I have set out in my reasons a table of the time frame of the offending, and the various amounts obtained.
Month Amount and Charge Total for Month Sept 2016 $500 - Charge 1 $500 Oct 2016 $3,000, $3,000, $3,000 - Charge 1 $9,000 Nov 2016 $2,500 - Charge 1 $2,500 Dec 2016 $3,500, $1,500 – Charge 2
$5,500, $2,000, $3,500 – Charge 3
($3,500 repayment to Victim of Charge 1)
$16,000 Jan 2017 $35,000, $1,400 - Charge 3
$36,400 Feb 2017 $6,500, $3,000, – Charge 2
($500 Repayment to Victim of Charge 2)
$9500 Mar 2017 April 2017 May 2017 $1,500 – Charge 2
$4,000 – Charge 4
$850 – Charge 5
$6,350 June 2017 $2,000, $2,500 - Charge 6
$4,500 July 2017 Aug 2017 $3,170 - Charge 7
$3,170 - Charge 6
$900 – Charge 811 Aug 2017 – sentence lapse
$2,500, $5,500 – Charge 9
$15,240 Sept 2017 12 Sept – Arrest and interview
27 Sept $1,900 – Charge 10
($1,000 refunded to victim of Charge 8)
$1,900 Oct 2017 $1,800 – Charge 10 $1,800 Nov 2017 $5,000 - Charge 11 $5,000 Dec 2017 $500, $500 $ – Charge 1 $1,000 Jan 2018 $980, $540 - Charge 1 $1,520 Feb 2018 $200 - Charge 1
27 Feb 2018 – arrest and interview
$200 May 2018 ($800 refunded to victim of charge 4) 102In summary, over the course of 17 months you deceived 10 different people into giving you money, generally on the basis that you would refund it in part or in full.
103The total benefit, cash and bank credits, over the 17 months was $110,610. You repaid a total of $5,800, in differing amounts, to four of the victims, and none were refunded in full. Those refunds were reflected in the final amount of the relevant charge.
104More than half of the total sum you obtained was from the young victim of Charges 2 and 3.
Offending on Parole
105All of the charges, save for 9, 10 and 11, and part of Charge 1, were committed whilst you were on parole for the sentence imposed by Judge Chettle. Section 16(1A)(d) of the Sentencing Act 1991 provides that in those circumstances the usual presumption of concurrency does not apply.
106Your counsel accepted that being on parole was an aggravating factor for the relevant offences.
General Deterrence Just Punishment and Denunciation etc
107General deterrence, just punishment and denunciation of your offending all carry significant force in sentencing you. Furthermore, in view of your dim prospects for rehabilitation, specific deterrence and protection of the community are factors of considerable weight.
108The sentences are:
Charge Sentence Cumulation 1 3 years 1 year 2 3 years 1 year 3 4 years base 4 1 year 3 months 5 6 months 1 months 6 2 years 4 months 7 1 year 2 months 8 6 months 1 month 9 2 years 3 months 10 1 year 2 month 11 18 months 3 months Total Effective Sentence: 7 years 7 months
Non-Parole Period: 6 years
109I state pursuant to s6AAA that if you had not pleaded guilty I would have sentenced you to nine years' imprisonment with a non-parole period of seven years and six months.
110I declare that you have already served 292 days of pre-sentence detention not including today and I direct that that declaration be entered into the records of the court.
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