Director of Public Prosecutions v Spillard

[2018] VCC 1033

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-00444

DIRECTOR OF PUBLIC PROSECUTIONS

v

GRAHAM SPILLARD

---

JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	5 July 2018
CASE MAY BE CITED AS:	DPP v Spillard
MEDIUM NEUTRAL CITATION:	[2018] VCC 1033

REASONS FOR SENTENCE
---

Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms J. Croxford
For the Accused	Ms S.Kilic

HER HONOUR:

1Graham Spillard, you have pleaded guilty before me to one charge of obtaining a financial advantage by deception and one charge of possessing a drug of dependence.

2The facts underlying your offending are as follows.

3You and your co-accused, Maria Alimic, met about nine years prior to the offending, dating for a short time after meeting up on an online site but simply remaining friends thereafter.

4In about September 2015, you contacted Alimic asking her about doing a conveyancing for the sale of your property in Queensland.  She had previously told you she was a mortgage bank broker and had an office in Deer Park.  During discussions with you she told you about numerous properties she purchased and how well she was doing.

5In October 2015, the two of you met in her office to discuss the sale of your Queensland property and you told Alimic you were proposing to use the sale proceeds to buy a run-down property in Victoria and to renovate it.

6During the meeting, Alimic said she could not do the conveyancing because the property was located in Queensland, but proposed a business partnership with you, she outlining a plan where you and she would enter into a business partnership, you would both buy the property that was run-down and renovate it, or if suitable build units on the land.  She said the properties bought would need to be in your name because she had a criminal record and she would provide purchase money for the properties and be responsible for loan repayments even though the loan had to be in your name.

7She said your part in the enterprise was that you would be responsible for organising any necessary plans and council permits, you would contribute your labour to the renovation or building works and be responsible for coordinating the project by organising the builders and tradespeople.  It was agreed that you would contribute the sale proceeds from your Queensland property towards either the units being built on the property or the land purchased.

8You agreed to this proposal and intended using the proceeds of the sale of the Queensland property to put towards the building units and over the next few weeks you and Alimic discussed the partnership and she regularly sent you details of properties she had been looking at on the internet.

9On 26 February 2016 the two of you went to an auction for a property at 33 Shand Road, Allamah, where Alimic bid and successfully purchased the property for $800,000, Alimic paying a deposit for $40,000.  She took control of the settlement of the property and dealt with the paperwork for the loan application and finance through the ANZ Bank, which was to be in your name.

10At this time you were working as a nurse for an agency in mental health and you gave Alimic your employee payslips in support of the loan application, but as you were not working much at the time due to family circumstances your income had dropped.

11During the process of applying for the loan, Alimic's assistant sent you payslips from the Diamond Creek Family Dental stating that you were an employee of the business, which was in fact entirely untrue.  When you raised concerns about using false payslips in support of the loan with Alimic, she assured you that this was a common practice, that she had done it for other clients previously, as long as the loan was being serviced it was not an issue.  She told you that she was the finance expert and was handling all the paperwork.

12On 27 January 2016 a loan application in your name was submitted to the ANZ Bank by the Australian Financial Group on your behalf, signed by you, and the loan being sought in the sum of $704,000.  The application form stated that you earned $98,176 a year, and in support of this you provided false payslips from the Diamond Creek Family Dental, stating you earned a weekly salary of about $1,890.85 and had worked for the business for about two years.  You recall attending the ANZ Bank.

13On 24 March 2016 the loan was approved and drawn upon and an ANZ Residential Investment Loan Account was opened in your name.

14On 9 August 2016 police executed a warrant at your address in Hurstbridge as part of a fraud investigation generally being organised by the Brimbank CIU.  They located both personal and company documents at your property, as well as a quantity of cannabis that is located in three glass jars with cannabis seeds.

15Your actions in participating in the provision of false information to the ANZ Bank underlies Charge 1 on the indictment, your possession of the cannabis underlies Charge 2 on the indictment.

16A restraining order was placed on 33 Shand Road, Reservoir on 6 September 2016, which property you sold on 13 December 2017 after receiving approval from the County Court.

17On 27 April the Residential Investment Loan Account was paid out and the loan was closed.

18You were interviewed on 9 August 2016 and made full admissions to your involvement in the offending, implicating Maria Alimic.

19On 30 September 2016 you made a lengthy statement to police implicating yourself and detailing matters involving Maria Alimic in relation to this offending and other matters.

20In the course of the plea that statement was handed up.  I have read it; it is indeed a lengthy statement.  You entered the witness box and under oath undertook to give evidence against Alimic when and if required.  I was informed by the prosecutor that the material that you provided was in fact valuable in that Alimic who is implicated in a number of other dishonest dealings, was released on bail and immediately proceeded to seek to make a false loan.  As a result of your information she has now been placed in custody.

21I now turn to your personal circumstances.

22You are 59 years of age and have no prior convictions.  You are the youngest of two children in your family.  Your parents separated when you were 11.  You attended a Catholic school in Reservoir.  You repeated Form 5 and left school after failing Form 6 at Reservoir High.  You undertook an apprenticeship as a cabinet maker, working in that capacity for years before joining Victoria Police. 

23You occupied a number of roles in the police force, including within the Special Operations Group and in crime scene photography. 

24You left Victoria police in 2003 and trained as a Division 2 Nurse, an occupation you still undertake.  You have worked in a number of roles, mostly including mental health units as part of long-term agency placements.  You have also worked as a fencer and renovating houses.

25You had a difficult time whilst you were in the police force.  I am referring to a report by psychiatrist Dr Lester Walton dated 19 May 2016.  He stated that,

"Mr Spillard has probably endured more than his fair share of adverse events while working as a police officer.  He was undertaking duties at D24 at the then Russell Street police headquarters when in March 1986 a bomb exploded.  He was thrown to the floor by the blast and showered with glass."

26In other words, you were directly involved in the Russell Street bombings.

27In December 1988, you were attacked with an axe handle during a house search.  In 1989, you were confronted with an offender wielding a sawn-off rifle, and the next month were involved in the Hawthorn kindergarten siege where an offender doused five children with petrol.

28Dr Walton went on to describe a number of incidents involving sieges, raids, and violent incidents as you were in the Special Operations Group which is a highly-skilled “bring in when nothing else works” type part of the police force and it is unsurprising that you have been involved in so many incidents.  Just a further example is another siege you were involved in in 1991 in Frankston, and a second siege in the same year with a knife-wielding offender who was shot dead by a member of Special Operations Group.  You were the first member to enter the premises and administered first aid until the paramedics arrived.  And then in 1991, which seems to have been a bad year for sieges, there was another siege in Frankston with a rifle being displayed, the perpetrator was shot.  In 1992 you were involved in a shootout at Tullamarine Airport.  You were involved in the 1992 Mercy Hospital siege.  In 1993 you were attacked by a person wielding a baseball bat.  The offender was shot and you got death threats.  You have been just attacked on a number of occasions.  You have witnessed people being shot.  You have been attacked yourself.  You suffered from a fractured eye socket on one occasion when you were attacked in the Northland Park Centre.

29You saw a psychologist for about six sessions but were never medicated.  Unsurprisingly, Mr Patrick Newton, whose report dated 19 June 2018 describes you as being a person who suffers from post-traumatic stress disorder which has gone largely untreated, although since being charged with these offences you appear to have been attending in a very serious way to the psychological difficulties that you have suffered from for a number of years.

30You have been involved in two relationships.  You were married in 1976 and that marriage ended in 2003 and you have two children from that marriage and then you had a relationship with a woman called Gaby which ran from about 2006 to 2015.  In fact, I received a reference from Gaby as to your character and the unlikeliness of you being involved in this sort of offending.

31You have no problems with alcohol or drugs generally but you have reported to Mr Newton irregular use of cannabis for several years essentially to help you sleep.  Mr Newton, as I said, diagnosed you as suffering the residual symptoms of a post-traumatic stress disorder together with a longstanding persistent depressive disorder and it is certainly his recommendation that you continue ongoing mental health care.

32It appears at the time of this offending you had a number of family difficulties.  You were not working normal hours.  You were to some extent persuaded by Ms Alimic that what you were doing was perfectly normal and though dishonest would not have any ramifications for you.

33One of the fallouts of this has been that you have suffered significant financial loss as a result of the purchase and sale of this property which was never able to be developed and which had a restraining order over it.  You have concerns about losing your home in Queensland.  You have also, according to Mr Newton, suffered a considerable loss of self-esteem.  You had always regarded yourself, according to Mr Newton, as fairly street smart and are very unhappy with yourself.

34I received a number of character references from family and friends, all of them excellent and all of them attesting to your normal character as a law-abiding, helpful, conscientious and trustworthy man, and it is quite clear from your history that that is what you are.

35Nevertheless, you have appeared before this court on a serious matter.  I accept that to some extent the seriousness of it escaped you but as a former police officer you must have been aware that the use of false payslips was not something that you should have been engaging in.

36However, I have had you assessed for a Community Corrections Order, it being submitted that this was an appropriate sentence for you and this was not of course demurred from by the prosecution and unsurprisingly you have been found suitable.

37In sentencing, I take into account your very early plea of guilty.  I take into account your prior excellent history, your assistance to police and your prospects of rehabilitation which I regard as excellent.  I think it is most unlikely a court will ever see you before it again.

38Therefore, can you stand up please, sir?

39Before I can place you on an order, I must first gain your consent.  I therefore need to outline the fundamental conditions.

40They are firstly that you must report to the Community Corrections Office within two working days of the making of this order, that is by Monday of next week.  Whilst on the order, you must not commit any offence punishable by imprisonment.  You must report to and receive visits from the Community Corrections Office.  You must not leave Victoria without the permission of the Community Corrections Office.  You must not attend upon the Community Corrections Office under the influence of drugs or alcohol.

41You must obey all lawful directions of the Community Corrections Office.  I note the order will last a period of 18 months.  I am going to order that you undertake 150 hours of unpaid community work.  You are also to attend for treatment and rehabilitation for drug use and you are also to attend for treatment and rehabilitation for mental health difficulties.

42Are you prepared to enter this?

43OFFENDER:  Yes, Your Honour.

44HER HONOUR:  Thank you.  Have a seat.  Can I actually place him on a CCO for possession of marijuana?  I don't think that's a - I probably can.  I just don't think I can gaol him.

45MS CROXFORD:  I think it's 30 - I don't have it in front of me Your Honour.  Is it 30 penalty units or 12 months' imprisonment.

46HER HONOUR:  All right.  That's all right.  It is use cannabis that is the problem.

47MS CROXFORD:  It is the use but that is the penalty unit.

48HER HONOUR:  All right.  That is fine.  I can.  All right.  Well, I am doing it.  Both arise and I am going to be putting them as on the same order.  All right?

49MS CROXFORD:  Is that with or without conviction, Your Honour? 

50HER HONOUR:  It is with conviction.

51MS CROXFORD:  Thank you, Your Honour.  Your Honour, let's just check that penalty, if I can.  My learned friend has indicated that a small quantity ‑ ‑ ‑

52COUNSEL:  I am not opposed to the course Your Honour proposes but I just - I said I think the legislation says that if it is a small quantity, it is only punishable by a fine.

53HER HONOUR:  I have got a feeling that is right.

54MS CROXFORD:  Yes.  I think it is.  Is it s.73 of the Drugs - we'll just have a look at it.  Because it is that three-step stage penalty provision and it depends on how it's put.

55HER HONOUR:  Three-step stage penalty provision.

56MS CROXFORD:  That doesn't make much sense, Your Honour, but ‑ ‑ ‑

57HER HONOUR:  But it is true whether - it is s.73(1)(a), where the court is satisfied on the balance of probabilities that the offence was committed in relation to a quantity of cannabis that is not more than the small quantity applicable the offence was not committed for any purpose related to trafficking in cannabis or tetrahydrocannabinol to a penalty of not more than 5 penalty units.

58All right.  So the CCO goes on in relation to the deception charge and I will fine you $120 in relation to the possessing and drug of dependence and that will be with conviction and you have got three months to pay that.  So it is only the - all right.  Yes, I would have thought you just take the charge out and you are done.

59Thank you.  Very well.  Thank you very much.  Can I get you to sign that please, sir?  Yes.  Thank you very much.  Yes.  Thank you.  We will give you a copy of that.  Thank you very much.  Thank you.  We will stand down.  Thank you.

‑ ‑ ‑