Director of Public Prosecutions v Salmak
[2015] VCC 1521
•28 October 2015
| IN THE COUNTY COURT OF VICTORIA | Revised (Not) Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-15-01245
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASEM SALMAK |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 21 October 2015 | |
DATE OF SENTENCE: | 28 October 2015 | |
CASE MAY BE CITED AS: | DPP v Salmak | |
MEDIUM NEUTRAL CITATION: | [2015] VCC 1521 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: One charge of using a false document to induce another person to act to that other person’s prejudice
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr J Livitsanos | Office of Public Prosecutions |
| For the Accused | Mr P Higham | Stary Norton Halphen |
HER HONOUR:
1 Asem Salmak, you have pleaded guilty to one charge of using a false document to induce another person to act to that person’s prejudice. This charge carries a maximum penalty of 10 years’ imprisonment.
2 The circumstances of your offending are summarised in the Prosecution Opening (Exhibit “A”). In September 2011, you made application to the ANZ Bank for a loan of $3 million. This was to purchase a fruit and vegetable business at Footscray Market. You applied for the loan using a false identity, Alam Kamal. You supported the application with three documents in this false name, namely an Australian passport, a Victorian driver’s licence and a birth certificate. You signed a Statement of Financial Position on 9 March 2012, declaring that all information in the loan application and in the documents in support of it was true and correct. The ANZ Bank subsequently advanced you a loan in the amount of $2,490,671.24, after interest on the loan had been paid up front. It was subsequently discovered that the documents presented by you were fraudulent and that you had been declared bankrupt in August 1996.
3 In a plea on your behalf by Mr Higham, the Court was told that you were initially charged with dishonestly obtaining a financial advantage by deception. Mr Higham stated that civil proceedings had been instituted by the ANZ Bank against you, seeking to recover an amount of $1.7 million still owed by you on the loan. He stated that, in your defence of those proceedings you had alleged that there had been misconduct on behalf of ANZ Bank employees at the branch where you had made your loan application, and the bank had accepted $500,000 from you in settlement of the $1.7 million debt.
4 Mr Higham stated that the reason you had used a false identity was because of a problem with your credit rating. You had voluntarily declared yourself bankrupt in 1996 when you were having difficulty paying a loan of $6,000, which had been given to you some years earlier by your then employer, Kodak Credit Union (and had discharged yourself from that bankruptcy some six months later). Nevertheless, Mr Higham stated that you used to personally attend the ANZ Bank branch from which you had obtained the loan, so your physical identity was known to the bank, as was your home address. In addition, the business for which you had secured the loan was a real and viable wholesale fruit and vegetable business, which had been the subject of an audit by the Chartered Accountants, Bird Cameron, prior to the ANZ Bank approving the loan. Further, up until the time that your identity fraud was discovered, you had kept up payments under the loan. These comprised four quarterly payments of $333,000 each. When the bank became aware of your fraud, it required you to refinance the loan, which you were unable to do, and also stopped an attached overdraft facility of $100,000. As a consequence, cheques relating to your business began to be dishonoured and the conduct of the business was taken over by an administrator, but, ultimately, it went into liquidation in June 2013.
5 Mr Higham stated that you had taken out a mortgage loan on your home in order to repay the settlement sum of $500,000 to the ANZ Bank. After the failure of your wholesale fruit and vegetable business, you obtained what work you could, undertaking accounting work for friends and colleagues. You had obtained a Diploma in Accounting in 1990 and a Degree in Accounting in 1997 and worked for a number of institutions as a financial officer prior to ceasing your last job with a pharmaceutical company because you wanted to run your own business. Mr Higham said that, since this offending, you had “bounced back”, as a business partner of yours purchased an independent supermarket in Moorabbin and you have been managing that supermarket since March of this year.
6 You are presently aged forty-six years, having been born on 20 August 1969. You come before the Court with no prior convictions. You are the oldest child of your parents, who migrated to Australia from Lebanon in 1965, and have a close relationship with your two brothers and two sisters. Three of your four siblings were present in Court to support you – the other sibling being unable to do so as she lives in Adelaide. You had some strain in your relationship with your father, which led you to change your name by deed poll in 2000, but it seems that subsequently that relationship has in some way been repaired. You have been married for 25 years and have three children, aged twenty, sixteen and twelve years. Your wife has suffered from depression since the birth of your first child and you have stood by her. Tendered as Exhibit “1” were eight references from family members and friends. Each, in its own way conveys that you are a reliable and loyal family man, who is honest, and that this offending is out of character for you and that you are ashamed and remorseful for it.
7 Mr Higham urged the Court to find that your prospects of rehabilitation are good, given your lack of offending and close family network. He also asked that the Court regard your plea of guilty as a remorseful one, noting that you indicated your intention to plead guilty following an adjourned committal hearing in July this year.
8 Mr Salmak, I agree with the submission of the prosecutor, Mr Livitsanos, that this a serious example of the offence of using a false document. Although there may be other more complex fraudulent structures than that employed by you, the fact is that you went to the trouble of contacting someone who used a passport number of a real individual and altered it proficiently to make it appear that you, with your false name, Alam Kamal, were the holder of that document. The driver’s licence and birth certificate did not relate to real human beings but were convincing counterfeits of such documents. It is very difficult to reconcile your scurrilous behaviour in obtaining and using such documents with the glowing references tendered to the Court, in particular, the one from your Imam at the Preston Mosque, which describes you as “a devout person who always displays the highest morals and character.”
9 There is no suggestion that you were in financial need. Indeed, immediately prior to making application for this loan, you were earning $120,000 per year as a financial manager with a pharmaceutical company. You are from a stable and loving family background and are educated to a high tertiary level. Back in 1996, your counsel stated that you made a “strategic” decision to voluntarily declare yourself bankrupt in order to avoid the $6,000 debt owing to your former employer, Kodak Credit Union. Mr Higham later stated that he had not meant the word “strategic” to imply a cynical action. However, it would appear that you did what was easy and convenient in order to avoid your legal and moral responsibility of repaying that loan, in circumstances where you were completing an accountancy qualification. This, to me, does not speak loudly as the action of a person of morality.
10 Further, you must have known that your credit rating was adversely affected by your former bankruptcy and, accordingly, tried to hide your identity when it suited you in order to obtain a $3 million loan. Many people in the community would like to obtain large sums of capital in order to start a business, but do not go to the length of hiding their identity and providing false documentation in support of the risk assessment which a loan institution must inevitably take before deciding whether to give the loan. You seem to me to be prepared to do whatever you think is necessary in order to better your financial situation. The only reason that I can find for your offending is that you were not content to earn a substantial wage as an employee and wanted to obtain greater wealth by running your own business.
11 Notwithstanding that the references tendered to the Court on your behalf speak of remorse and, indeed, in open Court you have claimed that you are remorseful, I have some reservations about whether you are truly remorseful in the sense that you are genuinely sorry for having committed this offence, as distinct from being ashamed of its consequences for you and the distress that it has brought to your family. If you were truly remorseful, it is difficult to understand why you simply made a “no comment” record of interview and did not assist the police.
12 Although I take into account that there has been some delay in this matter being finalised before the Court, it seems that you blame, at least in part, employees at the Keilor Park branch of the bank with whom you had dealings in relation to your loan application. Your counsel stated that your position is that these persons knew that the documents which you had tendered in support of loan application did not show your true identity. I am unable to make any finding on this one way or the other. However, that someone in a financial institution may have behaved in a criminal fashion cannot excuse your criminal behaviour in deliberately tendering false identity documents in order to have your credit risk assessed by the bank in a way that you knew was misleading.
13 It has often been said that this type of crime is not a victimless crime because, ultimately, all members of the community suffer when financial institutions make losses through this type of conduct. Moreover, when you took over the wholesale fruit and vegetable business you also took on 40 existing employees. These people lost their jobs when you lost your financial backing for the business once your dishonesty was discovered. In response to a question from me, Mr Higham stated that the administrators of your company endeavoured to see whether those persons could be found jobs elsewhere in the Market and you believed that some of them may have been successful, however, you appear not to have thought about their welfare when you embarked on this fraudulent conduct.
14 The delay in finalising this criminal proceeding, appears to have been partly caused by you having subpoenaed a host of material from the ANZ Bank with a view to demonstrating that there was misconduct on the part of its employees and that, therefore, the charge of obtaining a financial advantage by deception (with which you were originally charged) could not be made out. Had you chosen to cooperate with police, it seems that a resolution by way of you pleading guilty to the charge to which you have pleaded guilty could have been arrived at a long time ago. Also, a good deal of time and trouble and expense involved in the investigation of your offending would have been spared. This is also one aspect which causes me to doubt your remorse, although I accept that every person charged with a criminal offence is entitled to put the prosecution to the proof of that offence and that delay, no matter however it is caused, should be taken into account.
15 I also take into account that your plea of guilty, although I am not convinced that it is remorseful, has facilitated the course of justice and, of course, you must be given a discount on the sentence which would have been imposed had you not pleaded guilty.
16 Although I accept that you are loving husband and father and that your having let your wife and children down, will weigh heavily upon you and cause great distress to them, this, unhappily is something which is a common consequence of criminal offending.
17 In sentencing for this office, the Court must denounce your conduct and place emphasis upon general deterrence. People who might be minded to use false identities to try to persuade a financial institution that they are a good credit risk for the purpose of a loan of some magnitude need to know that this is regarded as a serious offence which will meet just punishment. Having said that, I do note that you have honoured the settlement sum agreed upon in the civil proceedings with the bank and done your best to keep working and that you do have a good work history. This, together with the support of you close family, many members of whom were in Court during the plea hearing, bodes well for your rehabilitation. I consider that these factors, together with the shame and guilt that you feel for what you have done to your wife and children, mean that your prospects of rehabilitation are good and that you are unlikely to offend in this manner again.
18 Unhappily, the gravity of this offending is such that I have determined that the only appropriate sentence is an immediate custodial sentence, however, I believe that the sentencing objectives which I have identified can be met by this being a relatively short period of imprisonment coupled with a Community Correction Order. You have been assessed as suitable for a Community Correction Order and indicated that you agree to be bound by its terms.
19 On one charge of using false documents to induce another to act to that other’s prejudice, you are convicted and sentenced to be imprisoned for a period of four months and ordered to undertake a Community Correction Order for a period of two years.
20 The conditions of the Community Correction Order are as follows:
(a)you must not commit, whether in or outside Victoria, during the period of the order an offence punishable by imprisonment;
(b)you must comply with any obligation or requirement prescribed by the regulations;
(c)you must report to and receive visits from the Secretary during the period of the order;
(d)you must report to the Community Corrections Centre specified in the order within two clear working days after the order comes into force;
(e)you must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)you must not leave Victoria except with the permission of the Secretary, either generally or in relation to a particular case;
(g)you must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
21 In addition to those terms, the following conditions also apply:
(1)that you undertake 200 hours of unpaid community work;
(2)that you be under supervision of the Secretary for the duration of the order;
(3)that you undertake any programs recommended by the Secretary to reduce the risk of reoffending.
22 Do you agree to be bound by a Community Correction Order with those terms and conditions?
PRISONER: Yes, I do.
23 Pursuant to s18 Sentencing Act, I declare a period of seven days pre-sentence detention be reckoned as time already served under the sentence imposed this day.
24 Pursuant to s6AAA of the Sentencing Act, I state that, had it not beenyou’re your plea of guilty, the sentence imposed would have been three years' imprisonment with a non-parole period of two years.
25 Pursuant to s464ZF of the Crimes Act, I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with sub-Division 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I believe that this order is warranted by reason of the seriousness of the circumstances of the offending. Mr Salmak, this involves providing a swab of saliva from inside your mouth. If you do not cooperate with the taking of such a sample, then the police are entitled to use reasonable force to ensure that such a sample is obtained.
26 Pursuant to s78(1) of the Confiscation Act 1997, I order the forfeiture to the State of the 19 items of property referred in the Schedule of this order. I further direct that such property be placed in the custody of the Chief Commissioner of Police and be held by him until 28 days from this date, or the conclusion of any appeal proceedings where it may be tested and/or analysed and then destroyed.
27 Finally, Mr Salmak, the Community Correction Order will commence once you are released from custody. You must understand that, if you do not comply with its conditions or if you commit another offence, you will have breached that order, and that, in itself, is an offence punishable by imprisonment. Should that occur, you would be brought back to Court to be sentenced for such breach and it may well be that the existing order would be set aside and you would be ordered to serve a further term of imprisonment.
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