Director of Public Prosecutions v Sharma

[2023] VCC 1746

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR-23-00406

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAVISH SHARMA

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JUDGE:	Kelly
WHERE HELD:	Melbourne
DATE OF HEARING:	5 September 2023
DATE OF SENTENCE:	25 September 2023
CASE MAY BE CITED AS:	DPP v Sharma
MEDIUM NEUTRAL CITATION:	[2023] VCC 1746

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW

Catchwords:          Obtain Financial Advantage by Deception – Attempt – Use a False Document to Prejudice Another – Property Suspected of Being the Proceeds of Crime – Gravity of Offending – Prospects of Rehabilitation – Delay – Comparable Cases – Sentencing Principles.

Legislation Cited:         Crimes Act 1958; Sentencing Act 1991

Cases Cited:DPP v Petropolis [2014] VCC 1899; Tran v The Queen [2014] VSCA 85; R v Verdins & Ors (2007) 16 VR 269; Worboyes v The Queen (2021) 96 MVR 344; Mao v The King [2022] VSCA 211; DPP v Akkala [2020] VCC 120; DPP v Mao [2022] VCC 526;

Sentence:  3 Year Community Correction Order, 400 Hours Community Work & Therapeutic Conditions

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr D. Ellwood	Office of Public Prosecutions
For the Accused	Mr C. Mandy S.C.	Stephen Andrianakis & Associates

HIS HONOUR:

1Ravish Sharma, you have pleaded guilty to two charges of Attempting to Commit an Indictable Offence, namely Attempting to Obtain a Financial Advantage by Deception,[1] four charges of Obtaining a Financial Advantage by Deception,[2] one charge of Using a False Document to Prejudice Another,[3] and one summary offence of Dealing with Property Suspected of being the Proceeds of Crime.[4]

[1] Contrary to ss 82, 321M Crimes Act 1958.

[2] Contrary to s 82 Crimes Act 1958.

[3] Contrary to s 83A Crimes Act 1958.

[4] Contrary to s 195 Crimes Act 1958.

2The maximum penalties for these offences are as follows:

·        Charges 1 and 4, attempting to obtain a financial advantage by deception – 5 years’ imprisonment;

·        Charges 2, 3, 6 and 7, obtaining a financial advantage by deception – twenty years’ imprisonment as these are continuing criminal enterprise offences in your case;

·        Charge 5, using a false document to prejudice another – 10 years’ imprisonment; and

·        Summary charge 70, deal with property suspected of being the proceeds of crime – 2 years’ imprisonment.

Circumstances of Offending

3The circumstances of your offending were as follows.

4In November 2017, Harpreet Singh and his wife Ella Nudelman purchased land in Keysborough, intending to build a house. In order to do so they sought a loan broker to assist them to refinance their existing home. Mr Singh approached you and sent you copies of his business financials and identification documents. The application prepared was for a loan of $572,000.

5You told Mr Singh that his application had been declined because of a default listed in his name. You told Mr Singh it would be better to apply again in the name of his wife, Mrs Nudelman, alone.

6A second application was prepared and submitted to AMP Bank Ltd. It was approved.

7After executing a search warrant at your home on 5 April 2018, police located various loan application documents.

8In the application for the first attempted loan, Ms Nudelman’s employer is listed as Nissan Financial Services.

9In the second successful application, Ms Nudelman is recorded as employed by Nissan Financial Services and Mr Singh as employed by Humphris Nurseries. Also located in the application were Pay As You Go (‘PAYG’) summaries and pay advice slips from Humphris Nurseries together with a PAYG summary and pay advice slips in the name of Nudelman purporting to be from Nissan Financial Services.

10Enquiries of Nissan Financial Services and Humphris Nurseries established that neither Mr Singh nor Mrs Nudelman were employed with those companies. The proof of income documentation was false.

11The deception associated with the first attempted loan constitutes the offending under charge 1 – attempt to commit an indictable offence.

12The deception involved in the second and successful application constitutes the offending under charge 2 – obtain a financial advantage by deception.

13In December 2017, Mr Singh and Mrs Nudelman sought further funding for their land purchase. They approached you and you assisted with the application to MyState Bank for a loan of $426,400.

14The application was supported by false income documents including a Commonwealth Bank statement supporting the crediting of false income streams. The application was successful, and this offending constitutes charge 3 – obtain a financial advantage by deception.

15On or about 18 January 2018, you submitted a loan application to PlanLend, the financial aggregator, seeking a sum of $520,000 on behalf of another Protective Services Officer, or PSO, Vikas Kanwal. Mr Kanwal was seeking to refinance his home loan.

16Mr Kanwal sent proof of income documents issued by the Victoria Police pay system.

17The application was ostensibly approved by the National Australia Bank.

18On 5 March 2018, Mr Gupta, an analyst at NAB, carried out a review of loan applications submitted by you. He selected a sample of loans submitted and this included Mr Kanwal’s application.

19Mr Gupta observed that there were discrepancies in the noted salary amounts and the pay slips. He made enquiries with Victoria Police who confirmed that the two Pay Advice slips and the PAYG statement had been altered to inflate the income figures.

20The loan was not provided. This offending constitutes charge 4 – attempt to commit an indictable offence.

21In mid-2017 Sonia Bhalla was looking for land to buy on which to build a house. Through her brother, she met you. Before meeting you, with her brother’s assistance, she provided you with payslips and a tax return as well as the contract of sale.

22Ms Bhalla made an application to the Bank of Melbourne for a loan of $268,000.

23When the application was examined by Ms Bhalla, she identified that the income figures had been exaggerated. Eastern Health, where she worked, also confirmed that the documents had been altered to inflate the income amount.

24The use of the PAYG summaries and payslips constitutes charge 5 – using a false document.

25In January 2018, Mahdi Hamidpourian sought to refinance his home loan to raise a bond to sponsor bringing his parents to Australia. He obtained your phone number and made contact. You asked for proof of income documents and identification.

26The loan was approved by Advantage Financial Services in the amount of $340,000 and proceeded to settlement in early February 2018.

27Subsequently, Mr Hamidpourian was shown documents, payslips and a PAYG payment summary used to support the loan application. Police also contacted Mr Hamidpourian’s employer ABEY Australia. Both Mr Hamidpourian and the employer confirmed that the income figures had been altered and included an exaggerated income. Mr Hamidpourian had no knowledge of these alterations.

28This offending constitutes charge 6 – obtain a financial advantage by deception.

29In about July 2017, another PSO, Prashna Pasupathipillai, approached you looking to obtain refinancing for his home loan. You explained what documents needed to be provided and he provided you with them within a few days. These documents included three payslips and a PAYG payment summary from Victoria Police.

30The loan was approved and settled.

31Subsequent examination of the documents used to support the application revealed that the proof of income had been altered and exaggerated.

32This offending constitutes charge 7 – obtain a financial advantage by deception.

33You handled a total of $126,143.07 in commissions received through the loans obtained from various lenders. Only $15,793.27 was actually received by you personally, however your dealings with the total amount constitute summary charge 70 – dealing with property suspected of being the proceeds of crime.

Personal Background

34At the time of the earliest of these offences, you were aged 30. You are now aged 35.

35You were born in India in 1987. You came to Australia in 2005, when you were 17. You left your parents and older brother behind.

36Upon arriving you lived with your cousin. You completed a Bachelor of Accounting at the University of Ballarat.

37You became a permanent resident in 2010 and worked to pay off the debts incurred through your studies. You attempted to enrol in a graduate program but were told that your bachelor's degree was too old, and that there were very few places available for international students.

38You then worked in security at a Dominoes store, and for Victoria Police in administration. You undertook door-to-door sales work and worked in a call centre.

39Eight years ago you met your wife in India and you have been together ever since.

40Six years ago you were introduced to the Malhotras, the people who trained you in loan brokerage and who educated you in the culture of dishonesty where this offending took place. I was told that you underwent a two-day weekend course to become a licenced mortgage broker. I was not told whether there was an ethics component to that course or, if there was, how many minutes it consumed.

41When you were approached to work for the Malhotra’s, Mrs Malhotra was in the throes of losing her accreditation and Mr Malhotra was not licenced. They therefore required your licence to remain in business. That is the setting in which Mrs Malhotra became your mentor, a role she appears to have been uniquely unqualified to discharge.

42The Informant’s statement lists the exhibits in the investigation. It is noteworthy that in 48 of 50 loan applications, Mr Malhotra passed himself off as you.

43Mr Ellwood advised me that the evidence demonstrates that Mr Malhotra produced the false wage documents relied on in the applications submitted in your name. You are to be sentenced on the basis that you submitted loan applications which contained details you knew were false, although you did not create these false documents.

44You worked for the Malhotras for 18-24 months and did not follow their example of charging extra commissions to your clients. I am told that your sole source of income in this period was the trailing commissions paid to you by the lenders. This offending spans five months of your time as the Malhotras apprentice and mentee.

45You and your wife now have two children, aged 3 ½ and 4, born after your offending. Your wife had complications in labour in the case of both children, and at one point was in hospital for 4 months. Whilst your wife was pregnant with the second child, you had to take on the role of caring for the first, whilst also working to support the family.

46You are the only breadwinner in the family and your wife cares for the children. You have been working as a fully licensed real estate agent, earning about $100,000 per annum. You work 6 days a week with long hours. Your employer is aware of your offending. I am told you are well respected by your peers and clients, and a bundle of client reviews provided to the court bears out that assessment.

47Aside from the offending the subject of these remarks, your record is unblemished, save for a single minor driving offence committed in South Australia in 2007.

Prosecution Submissions

48The prosecution accepted that your pleas of guilty were entered at the earliest opportunity.

49However, given the quantum and the repeated nature of the offending, it was submitted that the principle of general deterrence required a term of imprisonment.

50It is conceded that the personal benefit you received was negligible.

51The prosecution, as noted, accepts that you did not generate any of the false details in the loan applications the subject of these charges.

52The prosecution also accepts that you were introduced to the dishonest practices underpinning these charges by your employers, the Malhotras, who had developed these practices well before your arrival as their employee. They have both been charged with more extensive offending and both are yet to be sentenced in relation to 54 dishonesty charges spanning the period before your employment commenced.

53It was accepted that charges were filed against you in April 2022, four years after you were interviewed by police and you are in no way responsible for this delay.

54Mr Ellwood drew the court’s attention to the case of DPP v Petropolis where Mullaly J underscored the need for financial institutions to trust those like you working in the financial services sector and decried the cost to the community when that trust is breached.[5]

[5] [2014] VCC 1899, [13] (‘Petropolis’).

55Mr Ellwood also urged the court to consider the case of Tran v The Queen[6] which, he said, can be readily distinguished from your case due to the level of assistance and cooperation with investigators which Mr Tran provided.

[6] [2014] VSCA 85 (‘Tran’).

Defence Submissions

56Mr Mandy on your behalf highlighted the delay involved in bringing this case to conclusion. The most recent of the offences was committed over five years ago. The hand-up brief was in its current state by late 2019. Since then, you have reordered your life. You have married and have had two children. You are now working as a real estate agent and, I am told, you are well respected in that line of work. A list of customer reviews from realestate.com.au was provided to the court, showing the esteem in which you are held by your clients. I am told that you do not handle trust monies in this position.

57The delay in bringing these matters before to court was not in any way attributable to you. You have had these charges hanging over your head for years now. It is to your credit that, despite that, you have nonetheless tried to move on, start a family, and remake yourself as a real estate agent. This is a significant factor in my decision not to gaol you.

58It is also significant that on 5 April 2018, the day the search warrant was executed at your address, you left the brokerage business and never returned.

59It is submitted that your prospects for rehabilitation are provably good, since you have not reoffended in the five and a half years since these offences. You have no outstanding or pending criminal charges. I accept this assessment of your prospects of rehabilitation.  

60It was conceded that your employment as a protective services officer at the time of your offending was an aggravating factor, although to an extremely modest degree. This is because of the heightened expectation of ethical behaviour from such officers. There is no evidence before the court that you exploited this position to recruit clients or to generate false documents, although some of your clients were people known to you through that work.

61A letter from your employer’s director, Mr Shahid Ismail, was provided to the court. In it, Mr Ismail attests to your good character and strong work ethic. He speaks highly of you. He is aware of this offending, but nonetheless lauds your commitment to transparency and accountability. He says you embody the qualities of an individual who can overcome adversity, embrace personal growth and contribute positively to any environment. He has observed you interact with clients and is familiar with how well they regard you.

62A further letter from Ms Kathryn Barker, psychologist, was provided to the court. In it, she explains that she is treating you for adjustment disorder with depression and anxiety symptoms. The letter describes that you self-reported your symptoms as arising from your shock at being investigated by police. No reliance on the principles of Verdins[7] was made in this case. However, I do take the matters raised in Ms Barker’s letter into account insofar as they demonstrate the impact upon you as a stranger to the criminal justice system of charges that carry a real threat of gaol.

[7] R v Verdins; R v Buckley; R v Vo (2007) 16 VR 269, 276 [32] (‘Verdins’).

63Mr Mandy also relied on the fact that in each instance where funds were disbursed by the banks,[8] they were secured by the value of the real estate to which the mortgage applied, independently assessed and verified by the banks concerned in the expectation that if the loans defaulted- which did not happen- there was ample equity in the secured  properties  to recoup the monies leant. I will have more to say about this mitigatory feature elsewhere in these remarks.

[8] Charges 2, 3, 6 and 7

64The principle of parsimony was also invoked in the context of a delay of 5.5 years where pleas were entered “without prevarication’ and at a time when the Worboyes discount continues to be given.[9]

[9] Worboyes v The Queen (2021) 96 MVR 344, 356-357 at [39] (‘Worboyes’).   

Comparable Cases

65I have been referred to various cases involving similar offending. These include Tran v The Queen,[10] Mao v The King,[11] DPP v Akkala,[12] and DPP v Petropoulos.[13]

[10] (n 6).

[11] [2022] VSCA 211 (‘Mao’).

[12] [2020] VCC 120 (‘Akkala’).

[13] (n 5).  

66These cases have many features in common with yours - the nature of the dishonesty, the role ascribed, relative lack of antecedents etc - but no two cases are exactly alike and your offending cannot be equated altogether with the offending described in the cases to which I was referred.

67I note the observations of Doyle J in the case of Mao. In that case, a similar argument for leniency was made for the same reason Mr Mandy identified in his written submissions: namely, the fact that none of the fraudulently obtained loans have been defaulted upon. The original sentencing judge said the following:

“It must be that those who participate in offending such as this usually expect the venture to succeed and that their dishonesty will remain undetected. Success of the enterprise and the absence of loss cannot be elevated to become the primary sentencing consideration or be allowed to unduly erode the importance of general deterrence.

For the integrity of the system, it is obvious that those who might be tempted to obtain substantial financial advantages from banks through fraudulent misrepresentations be deterred from doing so. A belief in the ability to service the loan, even if such a belief is proven to be accurate, is somewhat beside the point. The assessment of the borrower's capacity to repay the loan is a matter for the lender, based on honest information.

That said, I accept the absence of loss and the low risk of default is a matter of significance which reduces the objective gravity of the offending.”[14]

[14] DPP v Mao [2022] VCC 526 at [57]-[59].

68On appeal, their Honours took no issue with the sentencing judge’s remark, and  the appeals against sentence for both accused were dismissed.[15]

[15] (n 11).

69In the case of Tran, an appeal against sentence involving 1 charge of receiving a secret commission and 16 charges of obtaining a financial advantage by deception was upheld. The applicant’s original sentence of 2 and a half years’ imprisonment was set aside and, in its place, a 2-year community correction order was imposed. The offending in that case involved a significantly larger quantum than that involved here: nearly $4, 300, 000, although Mr Tran’s personal gain was exceedingly modest.

70In upholding the appeal, their Honours placed considerable stress on the nature and gravity of the offending, the otherwise exemplary character of the applicant, his early plea of guilty, genuine remorse, prospects of rehabilitation and the large degree of assistance he provided to the authorities.[16]

[16] (n 6) at [33].

71As noted earlier, the same kind of assistance has not been provided here. However, there are parallels to be drawn between Tran and this matter, including the lack of criminal history, the prospects of rehabilitation, and the early plea offer. Moreover, the extraordinary delay in this matter is a powerful factor in mitigation. It is made all the more powerful when coupled with the consideration that the hardworking family life you have established for yourself since the offending would be imperilled by time in prison. Your rehabilitation appears to have been attended to in the years since you left the Malhotras and you contribute substantially to the community now.

72Akkala concerned an offender obtaining false documents and information to enable clients to obtain mortgages they could not afford to repay. In doing so, the offender received over $43,000 and four luxury watches. The offender operated as a go between and did not purport to offer financial services. As a continuing criminal enterprise offender, he was subject to a maximum penalty of 20 years imprisonment, and his offending was aggravated by a prior conviction for the same offence. The ultimate penalty was a combined sentence of 6 months imprisonment with a 3-year Community Correction Order.

73The case of Petropoulos involved charges of doctoring documents to grossly exaggerate the amounts paid as deposits for property purchases to influence mortgage brokers to act adversely to their interests. The offender was 52 at the time of sentencing, had no prior convictions and his moral culpability was high. The sentence imposed was a wholly suspended sentence of 20 months' imprisonment. I was also taken to a passage which I respectfully adopt, as to the effect of this kind of offending:

“All business and commerce, including that involved in the purchase of properties and obtaining finance to fund those purchases, depends on all involved acting honestly. Vendors, agents, those involved in securing loans, such as mortgage brokers, and purchasers, must be able to trust that the documents they are provided with are true and not fraudulent.”[17]

[17] (n 5) at [13].

74Mr Mandy also referred me to another case involving two co-offenders. Given that the sentencing remarks in that matter are currently classified as not suitable for publication, I shall not name either offender. However, they were both charged with one count of conspiracy to defraud, contrary to common law. There were broadly similar facts in that matter in that both offenders were involved in a sophisticated home loan fraud operation. Both were under the influence of a more domineering figure who oversaw the operation. Delay was also a significant factor. Mental health issues and undertakings to give evidence were also powerful mitigatory features of that case, both absent here. Ultimately, both offenders were placed on lengthy CCOs, without any period of imprisonment.

Sentencing Principles

75Section 5 of the Sentencing Act 1991 provides that the only purposes for which you may be sentenced are:

(a)   To punish you in a manner and to an extent which is just in all of the circumstances;

(b)   To deter you or others from committing similar offences in future;

(c)   To facilitate rehabilitation;

(d)   To manifest the denunciation of your conduct;

(e)   To protect the community; or

(f)    A combination of two or more of these purposes.

76I accept that, in your case, the need for specific deterrence is limited. You have not reoffended, you have virtually no criminal record besides this, and the stress at having these matters hanging over you for several years has already served to deter you and reform you. There is, nonetheless, a need for general deterrence and denunciation. I accept that you have completed your rehabilitation in the years since you left the Malhotra’s employ and I believe it is in the community’s best interests that you be permitted to continue making the contributions you have been making in the expectation that the unusual circumstances that exposed you to their criminality are unlikely to be repeated in any other setting in which you may find yourself.

Community Corrections Report

77I have a report from Corrections Victoria dated 11 September 2023.

78You have been assessed as having a low risk of reoffending. Consequently, Corrections Victoria have recommended minimal conditions be attached to any community correction order imposed. You have also indicated that you are willing to comply with a CCO.

79Less promisingly, however, is that you appear to deflect blame for your offending. To the Corrections officer preparing the report, you placed the blame for what has occurred squarely with the Malhotras. There is some tension between this disavowal of  personal responsibility and the acknowledgement of your criminal conduct reflected in your pleas of guilt, but I accept that you became  exposed to the Malhotras fraudulent scheme when you came to work for them  and but for your position as their employee you would not have become ensnared in this offending.

Sentence

80Mr Sharma, what I am proposing to do is sentence you to a Community Correction Order for a period of 3 years from today.

81Before I ask if you consent to a Community Correction Order being made, I have to tell you a little bit about the order, so you know what it means.

82The following core conditions apply to all Community Correction Orders:

(a)   You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment.

(b)   You must report to and receive visits from the Secretary to the Department of Justice, or his or her nominee, during the period of the Order.

(c)   You must report to a Community Correction Centre within 2 clear working days from today. In your case, you will be reporting to Werribee CCS, located at 87 Synnot Street, Werribee.

(d)   You must notify the Secretary, or his or her nominee, of any change of address or employment within 2 clear working days after that change.

(e)   You must not leave Victoria except with the permission of the Secretary to the Department of Justice, or his or her nominee.

(f)    You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure you comply with the Order.

83There are a number of other conditions attached to this Order, and they apply to you:

(a)   You have to perform 400 hours of unpaid community work over a period of 3 years as directed by the Regional Manager. 200 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition.

(b)   You must be under the supervision of a Community Corrections Officer for a period of 3 years.

(c)   You must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the Regional Manager.

84I direct that I be advised by your Corrections officer of any non-compliance of these conditions and I will then determine if the matter should be brought back before me.

85I can only impose a Community Correction Order if you agree to such an order being imposed.  So I need to tell you just a little bit more about that. 

86If you contravene or breach that order by committing further offences you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach. 

87You can also be re-sentenced for the offences that are before me. One of the options available includes a term of imprisonment.

88You need to be extra careful for the next 3 years.  No committing any further offences that might incur a term of imprisonment, otherwise you are back before the Court and you will be re-sentenced on these charges that are before me.

89I also advise you that if you fail to comply with any direction of the secretary to the Department of Justice, that is a Community Corrections officer, worker if you like, as part of this order, a substantial fine can be imposed.

90Now you understand all of that?

91OFFENDER:  Yes

92Do you consent to this order being made?

93OFFENDER:  Yes.

94HIS HONOUR:  All right.  I will get you to sign it in a minute.  I have got to sign it first no doubt.

Sentence

95Ravish Sharma, I sentence you as follows:

96On charges 1 to 7 and on summary charge 70, I sentence you on an aggregate basis to a 3-year Community Correction Order with the conditions I have just outlined.

97Pursuant to section 6AAA of the Sentencing Act 1991, I declare that, had you not pleaded guilty to these offences, I would have sentenced you to 6 months’ gaol followed by a 3-year Community Correction Order.

98I note that a disposal order was sought by the Prosecution. I understand that order is consented to, and so I make that order.

99MR ELLWOOD:  As Your Honour pleases.

100HIS HONOUR:  All right.  Nothing further.

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