Director of Public Prosecutions v Sharma

[2016] VCC 1021

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR -13-01924
CR -14-02239

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAVADA SHARMA

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	19 July 2016
CASE MAY BE CITED AS:	DPP v Sharma
MEDIUM NEUTRAL CITATION:	[2016] VCC 1021

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms A. Coomber
For Accused	Ms R. Sleeth

HIS HONOUR: 

1Savada Sharma, you have pleaded guilty to three indictments, one D10367362.1, which is an indictment with 50 charges of theft; Indictment D10367362.3, which is an indictment of five charges of theft and five charges of obtaining a financial advantage by deception; and Indictment D103367362.7, which is an indictment containing three charges of theft.

2You have admitted your criminal history, which I will refer to later in these reasons.  It relates to a sentence given by His Honour Judge O'Shea of this court on 2 May 1995. 

3The facts of the case are set out in the summary of prosecution opening on plea and not disputed by your counsel.  Any reader of these reasons can refer to that exhibit to place the sentence in its factual context. 

4The allegations to which you have pleaded guilty are succinctly set out in paragraph 2 of the prosecution opening, which reads, you were the managing director of Sharma and Associates, an accounting firm which operated out of an office at Suite 11, Walker Street, Dandenong Arcade.  You worked as an accountant for the business and from 2009, you hired an additional accountant to prepare tax returns, accounts and bookkeeping. 

5You held a trust account for the business and would inter alia prepare individual and company tax returns, business activity statements and financial paperwork.  You used your position to steal tax return funds and superannuation funds belonging to your clients.  I add, there were 61 of the clients you dishonestly obtained $837,532.78 and the amount of $722,204.78 is still outstanding.  It is not anticipated from bankruptcy proceedings that have been taken against you that any of the creditors will receive any of their money.

6The protracted progress of these charges through the court system is set out in the chronology.  There have been approximately 40 appearances.  I have read Her Honour Judge Hampel's reasons for a ruling in relation to an application to change plea on 30 October 2015.  Those reasons, in part, set out some of the reasons and background for the various court appearances, including the reasons for a change of practitioner and your attempt to change your plea.

7Your counsel relies on this and the other reasons she set out, to submit that delay is a mitigating factor in this matter, in that the offences have been hanging over your head for quite some period of time.  I accept that submission. Insofar as I understand the various pieces of legal advice you have received and your disappointment at the change of barristers and then the new barrister suggesting to you that you should change your plea from guilty to not guilty.  So I have taken delay into account in sentencing you for the reason outlined by your counsel.

8Two victim impact statements were read to the court.  One by Damian Damiano and one by Allesandro Damiano, which was read by his wife.  They movingly set out the effect your actions have had upon the family and the family finances.  Damien Damiano attached to his victim impact statements, documents from your bankruptcy proceedings, including the most recent report to creditors from Pitcher Partners.  That report makes a reference to what occurred to the funds that you took and said that investigations were still undertaking. 

9At the last hearing, counsel for the prosecution informed me that Pitcher Partners had determined that the person to whom you said you had given the money, was a fictitious person. However, as I remarked during the plea, I find that there is no material before me by way of evidence that would enable me to determine what in fact you did with the funds that you took. 

10As remarked during the plea, you claimed to the psychologist who saw you, Jeffrey Cummins, that you invested the moneys taken in a scheme operated by your friend, Hartyun Nalbandian.  As I said, there is no evidence before me of what you actually did with it. 

11Your counsel told me that the scheme you invested with concerned computers and softwares and had a prospective return of 20 per cent.  You said there was a written agreement you had with that person, but it has not been produced, either by yourself or by the prosecution.  Mr Nalbandian has not been investigated by the police.

12In addition, you told Mr Cummins, at paragraph 20 of his report, that you frequented local pokie venues over 12 months and lost a total of around $10,000.  You told him that, "Mr Nalbandian said he'd meet me at various locations and while I was waiting for him, I'd play the pokies."  That admission by you is not a proper basis upon which I could conclude that a lot of this money was gambled away.

13Apart from the purchase of one property, there is no evidence of an extravagant lifestyle or enrichment. 

14Your prior conviction, recorded on 2 May 1995, involved an amount of $50,000.  You, at that stage, working for the Commonwealth Tax Office and in relation to 17 taxpayers, you deliberately introduced false information, with a view to obtaining a larger refund than the taxpayer was entitled to.  I am reading this from the reasons of His Honour Judge O'Shea at p.1. 

15This resulted in the Commonwealth paying out tax refunds, to which those payers were not entitled to the extent of about $50,000.  You said that you participated in that scheme to gain the esteem of friends.  You thought it was all right, as you thought you were taking away from the rich and giving to the poor.  See p.2.

16As is the case in this case, a minister of the Hindu religion testified to your good reputation and what a helpful person you are and there was no question of your honesty. (See p.6.)  I have a similar reference before me in this case.

17References were tendered in that case, as in this, which spoke about your remorse.  In that case you entered a plea of guilty at a very early stage.  You were sentenced to four months' imprisonment, in addition to a suspended sentence.  Well, what in the Commonwealth legislation is called a recognizance, but in the State legislation it is a suspended sentence.

18The prosecutor in this case admitted that a custodial sentence, without the combination of a community corrections order, was the appropriate sentencing disposition.  She pointed to the number of victims, the duration of the offending, the total amount involved and your relevant prior conviction.  She said that any delay in the matter was self-inflicted, you had shown little remorse and it was
a late entry of pleas of guilty.  No admissions were made to the police. 
           She submitted that I could not be satisfied you had good prospects of rehabilitation.  She submitted, and there has been no argument, that you are to be sentenced as a CCO, that is a continuing criminal offender in relation to Charges 1 and 2 on Indictment D10367362.1, and Charges 1 and 3 on D10367362.7, as they are all offences with the amount of $50,000 or above.    

19You are to be entered in the court records as a continuing criminal enterprise offender.  The effect of being in relation to those charges being so designated, is that the maximum penalty is doubled. 

20The prosecutor submitted that your offending here was a gross breach of trust of your many clients. 

21In mitigation, Ms Sleeth, whilst acknowledging that it was serious offending, relied on, in mitigation:

(1) Your plea of guilty, although late was an acceptance of responsibility   by you and had a utilitarian effect;

(2) It was not sophisticated offending;               

(3) There was no evidence of an extravagant lifestyle or betterment; 

(4) If I accepted your explanation of what occurred to the money, it   involved poor decision making; 

(5) She referred me to Mr Cummins' report, which I have read and it sets                  out your personal history and background, which I also take into   account.  He set out, in paragraph 34, his conclusions as to you   suffering from the symptoms of an adjustment disorder with mixed              anxiety and depressed mood, which is reactive to your current legal                 circumstances and your belief that it is inevitable that you will be                  required to serve a period of imprisonment;

(6) On your personal background;

(7) The concern you have for your parents' health and in particular,   mother, for whom you are the primary carer.  These matters will   weigh on you whilst you are in custody;

(8) She submitted that something of an indeterminate nature occurred in                   2009/2010 to cause this offending, which involved many victims with                    whom you had had a long relationship; 

(9) She submitted that you were very shameful and thus remorseful; 

(10) There was no attempt to avoid detection; 

(11) Your difficulties in coming to terms with your behaviour; and  

(12) She submitted many references from your family and medical   references in relation to your mother's health and a reference from              the person involved with the Hindu faith.  I have read all those and               taken them into account. 

22I was referred to, by the parties, sentencing statistics and a number of comparable cases.  Each case is decided on its peculiar fact and such material is a guide for me to assess current sentencing practices and I have considered that material. 

23In sentencing you, general deterrence is an important sentencing factor in cases which involve offending of this type.  Denunciation is also important.  Conduct of this kind is serious offending because of the breach of trust involved.  Clients entrusted you to look after their financial affairs and you betrayed that trust.  Also I am of the view, because of your previous criminal behaviour involving matters of dishonesty, that specific deterrence also has a role to play in my sentencing decision.

24You are to be sentenced, as I have referred to in relation to the charges I have referred to, as a continuing criminal enterprise offender.  The way I should deal with those matters were set out in the case of Roussety [2008] VSCA 259. At paragraph 65 of that case, Redlich AP set out a discretion that I have in relation to whether I so deal with you. In my view you have not satisfied the elements set out by His Honour so that I would exercise that discretion.

25I have considered the exercise of that discretion and upon a review of the facts of the case, because of the way the offences, the qualifying offences were committed in respect of times and durations of their committing, they do demonstrate a continuing propensity to engage in the type of behaviour you engaged in.  However the consequential effect of a continuing criminal enterprise offence of increasing the maximum sentence, remains only one of a number of considerations in determining the appropriate sentence.

26I have to assess your prospects of rehabilitation.  I find that a difficult task, given that in the previous matter, you had expressed to the presiding judge your remorse.  References were given, yet you still re-offended.  How you will come out of gaol and with what attitude, I just am not in a position to assess.  Hopefully, at your age, you will realise that you cannot re-offend again. 

27A submission was made by your counsel that I should impose a sentence with a community corrections order.  Upon a consideration of the guideline judgment in the case of Boulton, in making an assessment of the principles of Boulton,
I have to consider whether the offending in question is so serious that nothing short of a sentence, wholly comprised of an immediate term of imprisonment, will satisfy the requirements of just punishment and whether a CCO, either alone or in combination with a sentence of imprisonment, not exceeding two years, would satisfy the requirements of just punishment. 

28I have undertaken my sentencing task, having paid regards to the statements of principle in the case of Boulton.  In the end, because of the nature and duration of the offending and the amounts involved and the number of people involved, it is my view that the offending is so serious that an immediate sentence of imprisonment is the correct outcome.  Thus to impose a sentence with a CCO would simply not represent the necessary degree of punishment for the serious offending in which you have been engaged. 

29I have taken into account all the mitigatory factors mentioned by your counsel, including:

(1) Your plea of guilty, which is an acceptance of responsibility by you and           also saved the court the time and the expense of conducting a jury trial. 
           I have mentioned the issue of delay; 

(2) I have taken into account your personal background; 

(3) The effect of your concern for your mother will have upon you whilst in           custody.  The remorse you have expressed. 

30I have taken into account all the matters mentioned by your counsel, even if
I have not specifically just referred to them.  I have looked at the principles of totality and proportionality. 

31A matter which has weighed on my mind is how to structure the sentence.  As discussed during the plea, I was of the view that I could impose an aggregate sentence in relation to each of the three indictments and then combine them.  Alternatively the prosecution submitted that I should sentence on each individual charge.  Or the third option, which I have decided to do, is to just impose an aggregate sentence on the three indictments. 

32If one goes back to the summary set out in paragraph 2 of the prosecution opening, it is my view that that then qualifies me to apply an aggregate sentence under s.9(1) of the Sentencing Act, as the acts form or part of a series of offences of the same or similar character. 

33I diligently tried to do it in each of the other two ways suggested to me and laboriously went through the exercise of sentencing - with each charge and then got my associate to put it on the court system to see if it worked out.  I just found it much too difficult to do and it seems to me that s.9(1) was specifically brought in for the type of matter that I am dealing with here.  So
I intend to impose one aggregate sentence for the three indictments. 

34What is the PSD now? 

35MS SLEETH:  Seven days, not including today.

36HIS HONOUR:  Very well. 

37So, Mr Sharma, I impose an aggregate sentence in respect of the three indictments, of five years, and order that you serve a period of three years before being eligible for parole. 

38What was it, five days?

39MS SLEETH:  Seven.

40HIS HONOUR:  Seven.

41MS SLEETH:  Seven day.

42HIS HONOUR:  I declare the period of seven days you have already served to be reckoned to be part of the term of imprisonment I have just imposed. 

43I declare, under s.6AAA of the Sentencing Act, that if the matter had proceeded to trial and you were convicted of all of the offences, I would probably has sentenced you to a term of imprisonment of something like seven years, with a five year minimum, or eight years with a six year minimum.  I find an incredibly difficult requirement to make a guess as to what I would do after a jury trial, but that is the best estimate I can do, as I am required by the law, to state. 

44Are there any other matters I need to look at?

45COUNSEL:  No, Your Honour.

46HIS HONOUR:  Was there a 464 order? 

47MS COOMBER:  Your Honour signed that on the last occasion.

48HIS HONOUR:  I did that?  No other orders?

49MS COOMBER:  No other orders sought, Your Honour. 

50HIS HONOUR:  Very well.  Thank you, you can take Mr Sharma out thanks. 

51I have a matter at 10.30, so if you would like to vacate yourselves, I will get on with that. 

52MS SLEETH:  As Your Honour pleases.

53MS COOMBER:  As the court pleases, Your Honour.

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