Director of Public Prosecutions v Sharma
[2019] VCC 1384
•27 August 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication | |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR-18-00631
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ANAND SHARMA |
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JUDGE: | HIS HONOUR JUDGE GAMBLE | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | Plea (24 June 2019) | |
DATE OF SENTENCE: | 27 August 2019 | |
CASE MAY BE CITED AS: | DPP v Sharma | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1384 | |
REASONS FOR SENTENCE
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Catchwords: CRIMINAL LAW - Sentence – charges of make false document and obtaining a financial advantage by deception relating to purported sale of Range Rover for $148,000 – offender a LMCT – plea of guilty entered after a contested committal hearing - offender aged 54 at time of offending and 58 when sentenced – no prior or subsequent criminal history - reasonable prospects of rehabilitation – offender convicted and sentenced to a combination sentence of 10 months’ imprisonment with a 12 month community correction order.
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr Andrew Sim (Plea) Ms S Hosking (Sentence) | Office of Public Prosecutions |
| For the Accused | Mr Paul Bradley | Shamrock Woodland Lawyers |
HIS HONOUR:
Introduction
1 Anand Sharma, you have pleaded guilty to an indictment containing two charges. Charge 1 alleges an offence of making a false document while Charge 2 alleges an offence of obtaining a financial advantage by deception. The maximum penalty in respect of each offence is 10 years’ imprisonment.
2 Your offending is fully set out in the detailed typed prosecution opening dated 17 June 2019, a copy of which was tendered as Exhibit A on the plea hearing. It is sufficient, for present purposes, to provide the following outline.
Circumstances of the offending
3 By way of background, I note that at the relevant time you were aged 54[1] and trading in vehicles via the registered business 'Super Cars No Commercials' from an address in Dandenong. You were the sole owner of that business from 8 February 2013 to 23 June 2016.
[1] Mr Sharma was born on 18 August 1991.
4 In May 2016, the complainant Megan Cassell and her partner were introduced to a man named Arz Khoweiss for the purpose of having him assist them to re-finance their loans and purchase a Range Rover vehicle to replace their existing one. He recommended to Ms Cassell that she contact you at Super Cars and Commercials. He told her that he had dealt with you often and that you had the type of car that she wanted to purchase. He even sent her photos of a Range Rover and claimed that he had seen the vehicle and that it was perfect for what she required.
5 As a result, the complainant organised finance for the purchase of the vehicle through a finance broker, Ray McNamara, via his company Hanleigh Lodge. Mr McNamara then met with her and arranged finance for the purchase with the Bank of Melbourne. He then contacted you and requested an invoice and other necessary documents in order to process the finance application. On about 13 May 2016, you provided him with a false invoice for a 2014 Range Rover registration ABM 849 ('the Range Rover') and VIN number SALW2KE8EA33458 with a value of $148,000. It was false because to your knowledge, neither you nor your company had ever owned, possessed or registered that vehicle. The circumstances just described form the factual basis for the make false document offence alleged in Charge 1.
6 Acting in good faith, the complainant paid your company a $5,000 deposit to hold the Range Rover. Mr McNamara then arranged for the Bank of Melbourne to loan her $142,000 and settle the contract. On about
20 May 2016, the bank transferred the sum of $142,000 to your nominated Westpac Bank Account in the name of Mr Anand Prakash Sharma, trading as Super Cars and Commercials. The offence of obtaining a financial advantage by deception the subject of Charge 2 is put on the basis that you obtained those funds by deception since, contrary to what you were asserting, the vehicle was not, and never had been owned, possessed or registered by you or your company
Complainant’s attempts to take delivery of the vehicle and subsequent contact between her and Mr Khoweiss and Mr Sharma
7 The arrangement between you and the complainant was that she would attend your company’s premises at 9 am on the day the bank transferred the money, namely 20 May 2016. In anticipation of that occurring, she arranged for insurance coverage of the Range Rover to commence on 18 May 2016.
8 At about 8 am on 20 May 2016, Mr Khoweiss called the complainant and told her that she would not be able to collect the Range Rover until the Tuesday or Wednesday of the following week as there had been a delay in obtaining the roadworthy certificate.
9 The following Tuesday, the complainant contacted Mr Khoweiss to arrange a time for her to collect the Range Rover. He told her that it had been sold to someone else and she would need to select a different car. From then until about mid-June, she regularly contacted him about the Range Rover and was updating Mr McNamara as to what was happening.
10 On about 29 June 2016, she contacted you directly, Mr Sharma. On about
1 July 2016, you sent her an image purporting to be of a cheque in the sum of $140,000 and told her that you would meet her to hand over that cheque.
11 On about 4 July 2016, she contacted you and threatened to involve her lawyers and the police if you did not refund the $140,000.
12 On about 5 July 2016, you contacted her and claimed that Mr Khoweiss had stolen the $140,000 from you. In an effort to placate her, you claimed that you were dealing with the Bank of Melbourne and she should not worry about it. As she later learnt, that claim was false.
13 When she contacted the bank on about 28 July 2016, she was advised that you had never contacted the bank regarding the loan. She then engaged lawyers to send your company a letter demanding that you either supply the Range Rover or refund the money previously paid to your company.
14 On about 14 September 2016, she recorded part of a telephone conversation she had with you in which you admitted that you had to repay her the money.
Sale of Range Rover by its true and registered owner in May 2016
15 The false invoice that you had earlier sent to Mr McNamara needs some further explanation. The vehicle referred to by way of registration and VIN number actually belonged to a man named David O’Leary. He had never met you or the complainant.
16 On 14 May 2016, he listed his black Range Rover for sale on the Car Sales website for $89,000. He then received numerous phone enquiries, one of which was from a car dealer who offered him $80,000 for the vehicle. That offer was rejected.
17 It would seem, therefore, that after you had viewed Mr O’Leary’s advertisement, you used his vehicle’s registration and VIN number together with a general description of the vehicle in the invoice you sent to
Mr McNamara.
18 Mr O’Leary ultimately sold his vehicle to a man named John Giles. As with
Mr O’Leary, Mr Giles had never met you or the complainant. The agreed purchase price was $89,000, for which a deposit of $1,000 was paid on
18 May 2016. Mr Giles organised finance for the purchase through
Stratton Finance and Mr O’Leary arranged a roadworthy assessment.
19 On 24 May 2016, Stratton finance contacted Mr O’Leary about the Range Rover in order to obtain ownership details as they had discovered there was an encumbrance over the vehicle in the form of a Bank of Melbourne loan.
Mr O’Leary had no knowledge of that loan and confirmed to Stratton Finance that he was the true owner of the vehicle.
20 Mr O’Leary then advised a Mr Camilleri from the Bank of Melbourne that he was the owner of the Range Rover and that no other person had authority to take out a loan against the vehicle. When Mr Camilleri attended Mr O’Leary’s address at the end of May 2016, he was provided with the ownership documents, registration papers and original contract of sale relating to the Range Rover.
21 That same day, Mr O’Leary received a telephone call from the same car dealer who had first called him when the advertisement on the Car Sales website was listed. When he advised the dealer that that the Range Rover had been sold, the dealer asked if the vehicle had been picked up and offered to purchase the vehicle. Mr O’Leary rejected that offer.
22 Mr O’Leary then became suspicious and suggested to the dealer that he had ultimately caused the Bank of Melbourne to place an encumbrance on his Range Rover. The man then claimed there had been a mix-up; they had purchased another black Range Rover from Car Sales and one of the office staff had used Mr O’Leary’s vehicle details instead of those from the Range Rover the company had actually purchased.
23 The Bank of Melbourne subsequently removed the encumbrance on
Mr O’Leary’s Range Rover and the sale to John Giles was able to proceed on 30 May 2016. He took delivery of the vehicle on that date and retained possession and ownership throughout 2016. At no stage during that period did he attempt to sell the vehicle.
Subsequent enquiries by Camilleri and McNamara
24 Throughout that period, Mr Camilleri liaised with Mr McNamara about the status of the complainant’s loan and the delivery of the Range Rover. After he was contacted by Mr Giles’ finance broker at Stratton Finance, Mr Camilleri spoke to you at your company’s premises. On that occasion, you claimed that the complainant had taken possession of the vehicle.
25 As I have already noted, when Mr Camilleri subsequently attended at
Mr O’Leary’s premises, he sighted the Range Rover and was provided with various documents establishing that Mr O’Leary was the registered owner. That confirmed in his mind that the Bank of Melbourne had provided finance for a vehicle that had never been owned by you or your company.
26 When Mr Camilleri subsequently raised those concerns with you, he was told that your company’s admin area had accidentally provided the wrong VIN number on the original tax invoice provided to Mr McNamara. Then, on
31 May 2016, you provided him with an updated tax invoice for a Range Rover with registration AHD 233. That invoice related to a vehicle with a different VIN number and suggested that the vehicle would be delivered shortly. When Mr Camilleri checked the description on the updated tax invoice, he discovered there was a matching vehicle for sale at Berwick Land Rover. That vehicle was purchased by a woman named Ms Beekhuyzen in June 2016.
Initial Police involvement with Mr Sharma
27 When you met the informant on 4 August 2016, you provided him with a copy of the invoice for the vehicle you had purportedly sold to the complainant and which you had originally forwarded to Mr McNamara.
28 During that conversation, you also told the informant that a man called
Arz Masri had taken a deposit of $148,000 from the complainant for a Range Rover which she never received and that Masri had purchased a Range Rover from the complainant’s husband and then sold that vehicle as well.
Record of Interview
29 When you were formally interviewed by the police on 9 March 2017, you denied the alleged offending. On your account to them, you had been tasked to source a Range Rover for the complainant and had viewed the 2014 Range Rover registration ABM 849 with VIN number of SALW2KE8EA334458 at a car dealership in Berwick, for which you claimed to have paid a $1,000 holding deposit.
30 However, you were unable to explain why the registration and VIN number on the invoice you provided to the complainant and Mr McNamara matched the Range Rover that had been advertised on the Car Sales website and which Mr O’Leary had privately sold to Mr Giles.
31 By way of further claim, you said that you had withdrawn $90,000 in cash from your Westpac Bank account over a period of two days and given it to
Mr Khoweiss for the purpose of collecting the Range Rover from Berwick and delivering it to the complainant. According to that account, Mr Khoweiss did neither.
Procedural History
32 The procedural history in respect of this matter can be briefly summarised as follows.
33 On 9 March 2017, you were charged by police.
34 On 23 August 2017, you appeared at a filing hearing in the Melbourne Magistrates’ Court.
35 On 15 November 2017, you appeared at a committal mention.
36 On 23 March 2018, you appeared at the contested committal hearing where the complainant, a civilian witness and the informant were cross-examined. You were committed to stand trial in this court on these charges.
37 On 26 March 2018, you appeared in this court for an initial directions hearing. The trial was listed to commence on 4 March 2019.
38 On 13 February 2019, you appeared at a final directions hearing. The matter had resolved by then and so, when arraigned at that hearing, you pleaded guilty to both charges on the indictment. Your bail was then continued to the plea hearing which was fixed for 24 June 2019.
Plea of Guilty
39 Whilst it is appropriate to recognise the fact that you have pleaded guilty to these offences and thereby spared the witnesses from having to give evidence at a trial and saved the community from the cost and time associated with such a trial, this court must also have regard to the timing of that plea when determining the extent of any sentencing discount that is warranted for taking the course that you have. As is clear from the above mentioned procedural chronology, your preparedness to plead guilty to these offences post-dated a contested committal. Your plea was not entered at an early stage of these proceedings and is not, in my view, accompanied by any remorse on your part. In all of those circumstances, I consider it appropriate to accord you a moderate discount in your sentence for pleading guilty at the stage that you did.
Victim Impact
40 This court must have regard to the impact that your offending has had on the victims. There are two principal victims of this offending, namely the
Bank of Melbourne and the complainant, Ms Cassell.
41 Although there is no victim impact statement from the bank, it is relevant to note that despite having obtained a judgement debt in their favour, none of the outstanding monies have been repaid to date. The sum is a significant one and it can be safely assumed has had some adverse impact on that business.
42 As is clear from her victim impact statement dated 17 July 2019, the complainant has been very adversely affected by your criminal conduct.[2] As the mother of two young children, she had to try and prove to the bank and their lawyers that she was not at fault. Whilst ultimately successful, it took a financial and emotional toll. The lengthy time it has taken for this matter to proceed through the criminal justice system has also impacted her and her relationship. She has described it as the most difficult period in her life.
Gravity of the offending
[2] Exhibit B.
43 This Court must pay due regard to the gravity of your offending.
44 Given the relatively high maximum penalty for each charge, such offending must be viewed as intrinsically serious.
45 I consider your offences to be relatively serious examples of their type.
46 The offending was pre-meditated and, whether or not there were others involved, you played a crucial role in ensuring that the plan was successfully carried out. After the offences were completed, you continued to lie and try and conceal your wrongdoing.
47 The complainant was, in my view, a trusting and somewhat naïve woman. You took full advantage of that trust and abused it in a very serious fashion. The adverse consequences for her have been significant, far reaching and ongoing. Much of that impact would have been entirely foreseeable by you at the time that you embarked on your deceptive conduct.
48 The amount involved was significant and none of the monies have been repaid to date and may never be.
49 The offending remains unexplained in my view and there is no evidence to suggest that it occurred out of need or some type of straightened financial circumstances. In this context, it is interesting to note that when you were interviewed in order to determine your suitability for a community correction order, Mr Sharma, you told the assessor that your business was ‘operating well’ at the time of the offending.
50 I accept that Mr Sharma’s pleas of guilty indicate that he has taken legal responsibility for what he did. But, as is evident from the CCO suitability assessment report, he lacks insight, remorse and victim empathy and does not appear to be accepting any personal or moral responsibility for what he did; indeed, he considers himself to be a victim.
51 Given the nature and seriousness of this offending, I consider the level of
Mr Sharma’s moral culpability to be high.
Personal circumstances
52 I will now briefly describe Mr Sharma’s personal circumstances.
53 He is now aged 58.
54 He was born and raised in Fiji where he obtained a Year 12 equivalent education.
55 He migrated to this country in 1983 and became an Australian citizen in 1985. He then assisted his parents to migrate here in 1987. His father died in 2013.
56 Mr Sharma is now divorced and has two adult children and four grandchildren.
57 After migrating to Australia, he worked for a car component manufacturer. He started as a factory hand and advanced to become a Production Manager before the business closed. He then ran a car detailing business for 5 years, after which he worked as a Real Estate Agent for 14 months. He then commenced his own car trading business in 2002. He ran the company Super Cars N Commercial as a Licensed Motor Car Trader (LMCT) until 2017 when he ceased trading. Since the closure of that business, he has worked periodically as a contract truck driver and has become a full time carer for his now elderly mother.
58 Mr Sharma does not use drugs or abuse alcohol.
59 He has some health issues, however. He developed a heart condition for which he underwent a heart bypass operation in 1994 and is now medicated.
60 His mental health was impacted in the wake of his divorce in 2008 and in aftermath of this offending.
Matters in mitigation
61 Mr Sharma, your counsel was able to rely on a number of matters in mitigation.
62 Your previous good character is an important consideration in your favour. The fact is that you reached your mid-50s without having committed any criminal offences. I also note that there are no subsequent charges, findings of guilt or convictions.
63 You have a good work history.
64 You also have some support within the community.
65 As the character references tendered on your behalf make clear, you have volunteered your time to assist the local Fijian community in which you mix.
66 Those testimonials also confirm that you care for your elderly mother who is in relatively poor health. Whilst it was not ultimately suggested by your counsel that your incarceration would, in that context, amount to exceptional family hardship, it is nonetheless relevant to take that matter into account as part of your personal circumstances and, in addition, to acknowledge that the time that you will have to spend in custody will be made more difficult on account of the fact that you will be worrying about your mother.
Relevant sentencing principles
67 General deterrence and denunciation are important sentencing considerations in this case.
68 The sentence to be imposed here must play some role in deterring others in the community who are minded to commit similar offences from doing so.
69 On behalf of the community, this court must make clear that such conduct is totally unacceptable and to be roundly condemned.
70 In light of the planning and manner in which this offending was carried out, together with your lack of insight and remorse, I consider that there is a real need to effect some measure of personal deterrence on you notwithstanding the fact that you have no prior or subsequent criminal record. You must clearly understand that the consequences for behaving in this or any similar manner in the future will be very serious.
71 This court must impose a just punishment for this offending. Making full allowance for your personal circumstances and the matters in mitigation upon which you can rely, the nature and seriousness of your criminal conduct warrant a relatively stern response from this court.
72 The totality principle is relevant, although, to some degree, the separate and distinct criminality of each offence must be reflected in the overall level of punishment involved in this case. Ultimately, the total punishment imposed must be commensurate with the totality of the offending, no more and no less.
73 Finally, this court must have regard to Mr Sharma’s age and prospects of rehabilitation. In regards to the latter, all relevant matters considered, I consider those prospects to be reasonable.
Sentencing submissions
74 In his sentencing submissions, Mr Sharma’s counsel urged this court to impose a stand-alone community correction order or, in the alternative, a combination sentence involving a term of immediate imprisonment followed by a community correction order.
75 For their part, the prosecution submitted that this offending was too serious for a stand-alone community correction order. However, they acknowledged that a combination sentence was within the available range if the community correction order included a sufficient punishment component by way of an appropriately framed unpaid community work condition.
Analysis
76 I have had regard to, balanced and weighed all relevant sentencing considerations. In the end, I have concluded that while this offending is too serious for a stand-alone community correction order, a combination sentence is both open and appropriate, providing Mr Sharma consents to such a course.
77 His statements to the assessing officer from Community Corrections have given me cause to further reflect on what conditions should be attached to any community correction order. To my mind, it would be futile and potentially counter-productive to include any condition requiring him to undertake any courses or programs that seek to address factors relating to his offending. That is so because unless things change dramatically in the future, I do not believe that Mr Sharma would be willing to admit this offending, let alone what his reason or reasons were for undertaking it, to his community corrections supervisor or to any person conducting such a course or program.
78 Accordingly, the proposed sentence will consist of an aggregate sentence in combination with a 12 month community correction order, with conviction, to which will be attached the usual mandatory conditions together with one additional condition requiring him to perform 250 hours of unpaid community work.
79 Mr Bradley, I propose to leave the Bench in a moment to allow my associate to provide the parties with a copy of the proposed community correction order for checking. Please take the opportunity to ensure that your client fully understands the conditions of the order and the potential consequences for him if he were to breach it. Once you have done so, just let one of my staff know that the matter is ready to resume and I will return to the Bench to confirm that and to check that Mr Sharma consents to being placed on such an order. The proposed aggregate sentence will be one of 10 months’ imprisonment.
80 I will leave the Bench briefly, thank you.
81 MR BRADLEY: As Your Honour pleases.
(Short adjournment.)
82 HIS HONOUR: Mr Bradley are you satisfied that your client understands all of the conditions?
83 MR BRADLEY: Yes, I am, Your Honour, yes.
84 HIS HONOUR: Are you also satisfied that he understands what could occur to him in the event that he breached that order in any way, including by the commission of another offence during the period of the order?
85 MR BRADLEY: Yes, Your Honour.
86 HIS HONOUR: Does he consent to being placed on such an order and agree to be bound by all of its conditions?
87 MR BRADLEY: Yes.
88 HIS HONOUR: Very well. Mr Sharma, would you stand up please. Having had the conditions of the proposed community correction order explained to you, are you prepared to be placed on the proposed order and to be bound by all of its conditions?
89 OFFENDER: Yes, sir.
90 HIS HONOUR: Let me just explain something to you, Mr Sharma. I am not suggesting that this will occur, but you need to understand it. If you were to breach this community correction order in any way, including by the commission of any other offence while on the order, you could be charged with and sentenced for the additional offence of contravening the community correction order, an offence which carries a maximum penalty of three months' imprisonment. You could also be sentenced afresh for the current offences of making a false document and obtaining a financial advantage by deception. In such circumstances, you would face the very real prospect of being sent back to gaol. Do you understand that?
91 OFFENDER: Yes, I do.
92 HIS HONOUR: Very well. Mr Sharma, I will now ask that you sign the order. Mr Bradley, you can attend the dock to assist him if he needs it.
93 MR BRADLEY: Yes.
(Community-based order signed and acknowledged.)
Sentence
94 Is that your signature on the order, Mr Sharma?
95 OFFENDER: Yes, it is.
96 HIS HONOUR: Thankyou.
97 I will now formally announce the sentence.
98 In respect of the two charges for which he fell to be sentenced, Mr Sharma is convicted and sentenced to an aggregate term of 10 months’ imprisonment to be followed on his release from custody, by a 12 month community correction order. In addition to all of the mandatory conditions that attach to every such order, there will be a further condition which requires him to perform 250 hours of unpaid community work.
No Pre-sentence detention
99 For the sake of clarity, I note that there is no pre-sentence detention to be declared in this case.
Section 6AAA declaration
100 Pursuant to s.6AAA of the Sentencing Act 1991, I indicate that had
Mr Sharma pleaded not guilty to these charges and been convicted at trial, he would have been sentenced to a total effective sentence of 18 months’ imprisonment with a non-parole period of 12 months.
Custody Management Issues
101 Mr Bradley, what custody management issues, if any, do you wish the court to have noted on the relevant documentation that will accompany your client into custody?
102 MR BRADLEY: Only the noted health requirements in relation to his heart condition and medications associated with that
103 Very well. I will ensure that my associate notes as custody management issues that the accused has a heart condition, for which he has undergone a bypass operation previously and is currently medicated. He's also medicated with Valium, is he not? No?
104 MR BRADLEY: No, not currently, Your Honour.
105 HIS HONOUR: All right. Do you want me to also have noted that this is his first time in custody?
106 MR BRADLEY: Yes, Your Honour.
107 HIS HONOUR: All right, well that will be similarly noted, Mr Bradley.
108 MR BRADLEY: Thank you, sir.
Other Matters
109 Counsel, are there any matters that either of you wish to raise at this stage in respect of either the sentence or reasons for sentence?
110 MS HOSKING: Your Honour, there was a compensation order sought, I don't know whether it was ordered?
111 HIS HONOUR: No.
112 MS HOSKING: No.
113 HIS HONOUR: No, there wasn't.
114 MS HOSKING: All right.
115 Mr Sharma can be taken downstairs now, thankyou.
116 Adjourn the court sine die, thank you.
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