Director of Public Prosecutions v Stevens
[2020] VCC 1677
•19 October 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR-18-02332
Indictment No. J12293523
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| Christopher Joseph STEVENS |
---
| JUDGE: | HIS HONOUR JUDGE TINNEY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 14 October 2020 |
| DATE OF SENTENCE: | 19 October 2020 |
| CASE MAY BE CITED AS: | DPP v STEVENS |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 1677 |
REASONS FOR SENTENCE
---Subject: OFABD x 2; total amount of $475,000; Developer resold two units; No prior convictions. Significant delay. Early plea. 65 years of age as at sentence
APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr P Pickering | Office of Public Prosecutions |
| For the Accused | Mr J Miller | James Dowsley & Associates |
HIS HONOUR:
1Christopher Joseph Stevens you have pleaded guilty to two charges of obtaining a financial advantage by deception.
2The maximum penalty for each offence is 10 years' imprisonment.
3You were born on 17 April 1955 and are 65 years old now. You have no prior criminal history. Nor have you committed any subsequent matters in the very significant period which has elapsed since these offences were committed back in November 2012.
4The matter was opened to me last Wednesday (14 October) by the prosecutor Mr Pickering. He opened in accordance with a written plea opening dated
21 September 2020. Your counsel Mr Miller informed the Court that the written opening which was marked as exhibit A was an agreed summary.5In such circumstances, there is little purpose in my now descending in great detail to the facts of your offending. I will sentence in accordance with those agreed facts.
6However, I will still say something briefly about your offending so that these reasons may be properly understood by those who may happen to read them.
7In 2008 you purchased a block of land in Seaford. You were a property developer and were developing the site with 20 townhouses. You had obtained finance to the tune of $6,000,000 from the ANZ Bank. I say you, but of course there was a company structure. You had established a company, Marina Seaview Pty Ltd. You were the Secretary and Director of that company and plainly, this was your project.
8If we skip forward a number of years to April 2012, Michael Tucci was a project manager engaged by your then builder at that site. You asked him if he’d be interested in purchasing one of the units. He was and the unit was sold to him. He signed a contract in May 2012. You signed the contract on behalf of the company. You were giving him a better deal subject to him paying a larger deposit.
9A little later in May, your company had difficulty making a payment to a contractor and you sought a loan from Mr Tucci. He obliged and lent you $25,000 and after you failed to make the repayment, you agreed to take the sum of $26,200 off the final settlement cost. By that stage then, he had deposited $215,000 as against a total purchase price of $290,000.
10He had spoken to his father Franco and Franco Tucci ultimately agreed to buy another unit in the same complex. The original price for that unit was $310,000. That contract was signed by Franco and Maria Tucci as trustees of the family superannuation fund. You signed on behalf of the company and later, you further reduced the price, conditional upon him increasing the deposit by another $60,000, which he did. In his case then, the amended purchase price was $290,000 and he had paid by way of deposit the sum of $260,000.
11All these people trusted you.
12These units were being sold off the plan but unlike some such arrangements where there is just a computerised image of the end product and a set of drawings and perhaps even a display unit in place, here there was some comfort taken from the fact that Michael was engaged in the actual project. Not just that, the project was actually up and running. There were bricks and mortar rather than mere promises of bricks and mortar. You were the Director of the Company. Though Michael Tucci would have had some sense of some cash flow issues with your company which would have explained your desire to get more of the deposit and to seek to borrow the later amount, he could have had no real idea as to the companies true financial position. You did.
13What you knew is that there had been a number of issues with the project and you spoke of those in the interview. A builder going ‘belly up’ on you, another builder ultimately engaged and who was providing shoddy work. You had pressure from the bank.
14No-one is suggesting that you went into this scheme intending to defraud people. You didn’t. As you made clear in the police interview, you went into this venture hoping to complete the project, sell the units and make millions of dollars. There was, you said, a lot ‘of cream’ in this venture, referring to potential profit. See questions 120-123 of the police interview.
15Nor is it suggested that when you agreed to sell to the Tucci’s, that this was the start of your fraudulent conduct. That is not the way the charges are laid.
16However, your next step commenced this serious fraud. The two units which had already been sold to the Tucci’s were then resold to other buyers in November 2012. You did not tell Hocking Stewart that they had already been sold. You did not tell the new purchasers either. Though not present when the new purchasers signed the contracts, you later signed those documents and sold the units on behalf of the company for larger amounts of money. You still didn’t inform the real estate agent or the new purchasers that the units had already been sold. You did nothing to inform the Tucci’s of your conduct and you did nothing to return any of the very sizeable amounts of money already received by the company.
17Paragraph 29 sets out the basis of the financial advantage you obtained.
18Well the inevitable happened. On the 8th of February 2013, the receivers were appointed, you lost control of the project and poor Michael and Frank Tucci were called in to a meeting with the receivers and were shocked to learn in May of 2013 that the contracts they had entered were judged to be invalid and unenforceable. By that stage you had already left the country. You had left on the 3rd of March 2013.
19The Tucci’s then had nowhere to turn and have suffered the full loss. $475,000.
20The company was deregistered in November 2014 and an investigation was commenced by police in October 2015 but by then you had well and truly left the country and had not by that point returned. You returned in May 2017 as your son was getting married. In early 2018, the police got wind of your return and you were interviewed on 6 March 2018.
21If I may say so, the interview is not the strongest point in mitigation. It was a self-serving and incomplete account, one where you blamed virtually every person other than yourself and where you focussed on the impact upon you and your family. I will return to discuss the police interview when dealing with the submission made as to the existence of remorse.
22The opening sets out the chronology in detail. I shall not. The matter came straight hand up brief to this Court in November 2018 and soon after on
6 December, you offered to plead guilty to charges virtually identical to the matters on the indictment. That offer was rejected by the Crown, a trial date was obtained and the Office of Public Prosecutions reconsidered their position and in June 2020, accepted the plea offer which had been made about 18 months earlier.23So much then for my summary of the summary. I will sentence in accordance with that more comprehensive agreed factual statement marked as exhibit A.
Impact
24There are no impact statements placed before me. I hardly need them. These were sizeable losses that had been suffered. There is reference in the 2016 police statements of Michael and Frank Tucci as to the impact as of that date. Neither of these families thought they were becoming speculative financiers of your development. They were buying units. They were investing in bricks and mortar. They trusted you. Michael Tucci and his wife have lost $85,000 of their personal savings. They also obtained a mortgage of $130,000 from their bank secured against their home. They had to service that loan, a loan taken out to purchase this unit. So servicing and striving to pay off a loan with nothing to show for it. As investments go, they don’t really come much worse than that. Even as of 2016 it was described as an exhausting burden seeking to have the matter redressed. It was no doubt a large blow financially and emotionally.
25Franco Tucci was older than you. The contract was signed by he and his wife as trustees of the family superannuation fund. The loss of that $260,000 has had a significant impact on their financial security for their retirement.
26The impact here has been very sizeable as you must surely know. It is conceded by your counsel who states in his written submissions that the loss of funds would be felt “acutely by them” (see paragraph 16).
27Of course, it was not just the money. It was the whole wretched experience brought about by your conduct.
In Mitigation
28Your counsel, Mr Miller relied upon some detailed written submissions which he had prepared. Those submissions read in conjunction with Mr Cummins’ report went into great detail as to your background. Mr Miller placed before the court the report of Mr Cummins as well as a report from your GP, Dr Baum, with a letter sent back to that Doctor by a psychologist you had been referred to, that is Mr Rusu.
29There was also a character reference from your sister. Mr Miller also provided some details of suspended sentence cases referred to in the Judicial College of Victoria sentencing manual.
30He made submissions as to the circumstances of your offending.
31He relied upon the following in mitigation;
·The guilty plea and the early stage of that plea;
·The presence of some remorse;
·Your previous good character and what he suggested were your excellent prospects of rehabilitation; and
·The passage of time between the offence date and now as well as the delay in the finalisation of this matter after you had offered to plead guilty and your efforts in those periods.
Mr Miller made no direct submission as to the impact of COVID-19 upon serving prisoners. I am assuming that was either an oversight or that he took it as a given, as there is no reason why you would not suffer the increase in prison burden which has been brought about by the prison authorities’ response to this virus. So, I will treat him as having made a submission that there would be an increased burden of imprisonment courtesy of the response to the COVID-19 virus.
32He conceded the seriousness of the offending but was at pains to remind the court that you did not, as he put it, ‘personally’ benefit. He conceded that it was of a sizable amount and had caused acute loss and hence impact to the victims. He stated that such offending would normally attract a significant prison term. See para [37]. He suggested it might be open for you to avoid spending one day in prison owing to the many matters in mitigation including the delay. Though his written submission suggested that a standalone community corrections order was open here, he really did not press that suggestion on the plea. It was quite inconsistent with the concession he was making as to the inevitability of a prison term. However, given the age of the offending, the impact of delay, your early guilty plea and past good behaviour, he argued it would be open to impose a prison term and then wholly suspend that term.
33I should explain that such an outcome is not open as a matter of law for any matter dealt with on indictment where the offence was committed on or after
1 September 2013. Suspended sentences were in fact phased out in stages and were finally abolished altogether as a sentencing disposition in this State in September 2014. But when this Court is dealing with matters on an indictment for offending predating the 1st of September 2013, it is still an option, if suspension either wholly or in part, is desirable in the circumstances. That is the effect of the transitional provisions.Prosecution
34The prosecutor made some brief submissions. As to the suggestion that you did not personally benefit, the prosecutor argued that you were the secretary and Director of this company. As was plain, this was your project and you stood to gain sizeable profit. In reselling the units, he submitted that you had converted the Tucci’s into your financiers without telling them they were. In reselling the units, you were buying time in the hope of completing the project. You had choices and one obvious one, the prosecutor said, was to walk away and call in the bank. It was not an option to resell the units. He submitted that you left the country at such a time as to have the Tucci’s then dealing with the receivers. Though there was not then an active police investigation on foot, there was certainly an aspect of putting the issue off or abandoning your responsibilities.
35The prosecutor questioned the extent of any remorse here and pointed to your interview and to your more recent account to Mr Cummins.
36The prosecutor Mr Pickering argued on behalf of the Director of Public Prosecutions of this State that an immediate term of imprisonment was required here. Whether there was partial suspension was a matter for the court but the Director argued that the seriousness of the offending, the impact of it and the need to mark out denunciation and general deterrence required an immediate prison sentence.
Background
37I will turn now only relatively briefly to your background.
38As I said earlier, much material as to your background was set out in the written submissions. There is more detail still in Mr Cummins’ report. I have no reason not to accept the family background placed before me and see no need to restate it all. Your background in no way explains this offending.
39Very briefly then, you were born in April 1955 in India and you are now 65 years old. You were 57 at the time of the offending. You have no prior convictions and nothing committed subsequently. You call in aid your past good character.
40Born and raised in India, your father died in a car accident when you were only a boy. Your mother re-partnered. You have siblings and half siblings spread around the globe. Mention is made of some sexual abuse at the hands of one of your stepbrothers, something that has only recently been disclosed.
41You were a good student. It is plain from the report of Mr Cummins that you are of high intelligence. You attended University in Bombay. You moved to Dubai as a young man to work in air freight where you held a number of jobs, some quite senior, in managerial roles.
42You have been married since 1977 and there are two sons of that relationship. You are presently living with one son. The other lives in Adelaide.
43You lived in Dubai until 1991 and moved then to Melbourne. You are an Australian Citizen so there is no issue in terms of risk of deportation in this case. You had a number of jobs once in Australia, including in the insurance industry. You also had some businesses. There was a fishing and tourism business operating out of Papua New Guinea. I was told that you sold out of that profitably in 2009 but I note earlier accounts of your depression arising from the failure of the fishing business. That is referred to in the 2004 notes of your GP. Who knows where the truth lies there? You had also turned your hand to property development. The Seaford project was not your first.
44I infer that you must have had some success in business as you were ultimately successful in obtaining a six million dollar loan for the project in Seaford. The family also at one point had two Nando’s franchises, franchises that were surrendered in 2015.
45As indicated already, after the receivers moved in on 8th February 2013, you left the country within a month, not returning for a number of years. You travelled to Thailand, then to Canada, then to Sri Lanka spending a number of months in each location. Then you went to India. You wound up in Dubai and worked there for some years back in air freight. You came back to Australia in 2017 for one of your son’s weddings.
46You have been working in customer service for Metro buses but COVID-19 has impacted upon that. It is not a highly paid job. You have been paid around $700 per week and you and your wife are living with your son and his family out in Lynbrook.
47You were bankrupted and are disqualified from holding any office within a company.
48It has been a large fall from grace.
49Plainly, since being interviewed by the police, there has been a degree of stress involved in awaiting the outcome of this matter. Both the psychologists comment on that aspect of anxiety.
50You fear the prospect of being sent to prison. You wife fears for you as well.
51Let me turn then to the various other matters raised in mitigation.
Guilty plea
52You have pleaded guilty. I am not going to set out the full chronology. Your counsel suggests it was a plea at the earliest opportunity. It was not. You were interviewed in March 2018 and gave a pretty unsatisfactory account. It certainly was not a full confession to these two charges. Far from it. You were charged in July 2018 with a filing hearing in September 2018. Then a committal mention in October 2018 and another in November 2018. There had been issues in terms of obtaining a lawyer and on the 13th November, the matter came straight hand up brief to this Court on a not guilty plea.
53Within a short space of time though, you had offered to plead to these two charges. That offer was made on 6th December 2018. It is not your fault that the Crown rejected that plea offer. It is a shame they did, for here we are almost two years later dealing with those same two charges. I will have further regard to that aspect when I come to consider the submissions made as to delay.
54Though not a plea at the very first opportunity, undoubtedly your plea is to be treated as a very early one.
55No doubt when further consideration was given to your plea offer in June 2020 by the prosecution agency, it would have been very apparent that the trial date in July 2020 was just a notional one. In fact by June, I suspect it had probably gone off to a holding date in 2021. The Courts’ operations had by that point been totally disrupted by the COVID-19 virus and there would have been no realistic prospect of the trial being held until next year, at the earliest.
56The matter settled and I have regard in your favour to the fact that this has taken place in the currency of the disruption of the Court processes brought about by the COVID-19 virus.
57This trial would not have got on for a very long time and that would have extended the anguish for the victims.
58You have admitted your guilt. You have taken this early legal responsibility for your crimes. You have facilitated the course of justice. The community has been saved the time, cost and effort associated with a committal in the Magistrates’ Court or a trial up in this court. The various witnesses have been spared the experience of giving evidence. I take these various matters into account in your favour.
Remorse
59What then of remorse? Your counsel’s written submission was completely silent as to remorse. That was not in any way surprising to me given your interview account and your more recent account to Mr Cummins. However, in the running, your counsel submitted that I should find the presence of remorse. We then discussed some of the potential obstacles to such a finding. Ultimately,
Mr Miller argued that I should imply some remorse from your guilty plea.60You have pleaded guilty at an early stage. Though not always the position, a guilty plea is often indicative of at least some remorse. Unfortunately, there is material before me suggesting to me that you have had, and continue to have, real difficulties truly acknowledging your own highly criminal behaviour. Yes, you have acknowledged your guilt legally, by pleading guilty, but your account given on two occasions causes me to doubt the presence and extent of much genuine remorse here. I acknowledge that your sister speaks of your remorse. But I don’t really know what she is describing. Nor do I know how you have explained your criminal conduct to her. Her description of your confusion as to the complexity of what you had done does not suggest to me that you have given a very accurate description. Nor for that matter does the account you give to Mr Cummins fill me with confidence that you are giving a true or full account of your criminal conduct to others.
61I do not doubt by the way that you are sorry to have placed your wife and family in this setting. That is not remorse for your crimes. Nor could one doubt your concern for your own position. You speak of it so frequently. Far less frequent is any consideration by you of the impact upon the Tucci’s.
62Further, your sister is not fixed with knowledge of the account that you gave to the police or to Mr Cummins. I am.
63I am not going to spend an enormous time on your interview. Nothing you said in the police interview aggravates the matter. However, your own counsel accepted that the interview posed some sizeable problems. He reminded me that the interview account was a long time ago and that you had since pleaded guilty. That is true.
64There was nothing confusing about what you did. You sold two units twice. You told the police that you wished you had taken some money and hidden it away. You said “Why should I suffer?” (see questions 189-190). You blamed your builder for much of your woes. You even implied that in some way, the Tucci’s were at fault (see questions 211-220). You claimed that it was the real estate agent who had double dipped, suggesting that you had pre-signed contracts of sale and implying that the real estate agent had, without your knowledge, sold the units a second time. That is not what happened as the agreed summary makes plain. You blamed the ANZ Bank for calling in the receivers. You spoke of your ruined life and your skin condition and the stress of it all for you and for yours. Of your reduced position. Your loss. Hardly a word about the Tucci’s. There was a bizarre exchange at questions 265-271, as the informant tried to establish how this was all going to play out, if you succeeded in completing the project, with you saying that if the receivers had not come in, all would’ve ended well and ‘they’ would have had their apartments. The informant was understandably puzzled and stated the obvious and said they couldn’t both have the same apartment, something you agreed with.
65There is in my assessment virtually no remorse on display in the police interview but plenty of self-pity.
66Mr Miller correctly says that interview was some years ago. That is true, but you had 6 years to think about what you had done prior to that interview. You had done a pretty thorough job of putting yourself up as a victim.
67The account to Mr Cummins is far more recent with consultations on 10 July of this year, 10 August, 28 August and 18 September of 2020. So very recent discussions and in a setting where you had already admitted your guilt by pleading guilty which you did on 9th July this year.
68You admitted that you did the wrong thing but said that the money went straight into the business to try to keep the project afloat. You described being approached by Michael Tucci. You said that both father and son knew your project was running into financial difficulties and offered to put money into the development by buying units. You told Mr Cummins that this suited you and you went along with this. This distorts what really occurred, as the agreed summary makes very clear.
69You told Mr Cummins you were shocked when the police had suggested that you purposefully deceived the Tucci’s see para [33]. You told Mr Cummins that you had difficulty accepting that you set out to deceive the Tucci’s. Now of course it is not suggested that when you first sold the units to them that you had fraud on your mind. The criminality here was in selling these units a second time. That’s not too difficult to understand actually in terms of criminality.
70You told Mr Cummins that you did not intentionally forget to tell the real estate agent that you’d sold the units. You said you were shocked when told the units had been sold a second time and then retreated in your account to Mr Cummins of this nonsense of signing contracts in advance.
71You were not shocked at all. You knew of the sales and were acting dishonestly at that stage, as is conceded by your plea. You signed these documents, these contracts of sale after the purchasers had signed them, Mr Stevens. Again, there is a strong theme in your account to Mr Cummins of being wronged or let down by others. Though you did say that you feel really bad and guilty for the Tucci’s, you speak of bitterness in relation to the bank and the builder and Nando’s franchises. Of all the impacts upon you and your family.
72Your response to the receivers being called in is hardly suggestive of remorse at that point. Going on holiday to Thailand, to Canada, to Sri Lanka and to India, and then relocating permanently to Dubai, amidst the receivers being called in to unravel the shambles of your making, your bankruptcy, the deregistration of the company. It all reeks of just abandoning all of your responsibilities and just burying your head in the sand and hoping it would go away.
73It is not surprising that you focus on your own predicament. However, I am not satisfied on the balance of probabilities that there is much by way of genuine remorse in this case. It is disturbing that you still put a gloss on your criminal conduct and introduce this notion of inadvertence. This had nothing to do with some unintended act by a real estate agent. You were acting dishonestly not the real estate agent. That is the basis of the charge. Dishonesty in not informing the Tucci’s of the resale to others, not informing the new purchasers, retaining the Tucci’s deposits which related to the lion’s share of the purchase price and in doing so, really deferring their ability to launch proceedings to recover their deposits or to enforce the contracts of sale in a timely fashion. I don’t believe there is much remorse here at all. Not now and not in the past. I am prepared to find only some minimal remorse as indicated by your guilty plea but beyond that, there is not much on display.
COVID-19
74As I said earlier, no submission was made as to the impact of the COVID-19 virus upon the experience of prisoners in this State. I treat the submission as having been made for I can think of no reason why the impacts would not apply to you.
75I believe that the COVID-19 virus and the response to it by those running the prisons would increase your prison burden. Prison is, at the moment, a more stressful environment. Prisoners cannot make a decision to self-isolate. Social distancing is not easy. No doubt there is a worry about catching the virus in such a setting where there is no level of autonomy.
76It is difficult for a sentencing Judge to know precisely how the virus or the response to it by those running the prisons would impact upon a prisoner in the future, how it would impact upon you if you were to be sent to prison. There are some lockdowns but they do not exist across all prisons so I cannot conclude that they would necessarily apply to you in the future. Visits have already been suspended and so have some courses and programs. I cannot know how long those things will persist.
77It is in fact impossible for me to forecast the impact of this virus either on those in the community or those in prison. Some cases have been discovered in prison but not too many actually. There had been fears of massive spread within prisons and that has not come to pass. It has been very well contained.
78There has been a state of disaster declared in this State with a roadmap to reopening but things are looking a good deal more positive at the moment than they were looking as we headed into that phase. Some further significant relaxations were announced by the Premier yesterday and again it seems clear from the statistics that we have ‘flattened the curve’. So we are heading back in the right direction once again. It still does not suggest to me that there will be any prospects in the short term of the prison conditions being returned to the pre COVID-19 setting. So prison life is tougher for those who are sent there and more so for one such as you who would be a first time prisoner. Not just that but one who already has the sizeable anxiety about going to prison arising from the past sexual abuse perpetrated upon you.
79I would expect there will be less time out of cells, less access to programs and courses and no access to in-person visits for quite some time. Also a 14 day isolation when first received which is a tough initiation. Things are being done to try to compensate for the lack of in person visits with access to video visits but they are not the same.
80There is probably no such thing as a good time to be sent to prison. But this is a particularly bad time to be sent there and I take this increased custodial burden into account in your favour.
Rehabilitation/Delay
81I move now to consider your prospects of rehabilitation. This necessarily involves a consideration of delay and the way in which this is taken into account here. You are 65 years of age and have no prior criminal history or anything committed subsequently in the 8 years since the offending I am dealing with. You call in aid then your past good character. It is said that the conduct was out of character and that is true.
82You are a married man with stability on that front. You have reared two sons to adulthood and have never come into contact with the criminal justice system. You have none of the matters that so often would impede rehabilitative prospects, for instance serious mental health issues or dependency on drugs. Those sorts of things very much cloud an offender’s prospects and they just do not exist here. They very often don’t exist when dealing with white collar or corporate crimes.
83One would never have expected you to commit serious crimes and yet you did.
84You have a very good employment record in the past and were to some extent perhaps out of your depth in the scale of this project. It plainly ran off the rails. You did not commence the project with fraud in mind. You did not even sign the original Tucci contracts with fraud in mind though the project was teetering precariously. It was the resale of those same units that was done with dishonesty. So, as I say, you did not set out to defraud. You set out to make millions of dollars and the project ran into some hurdles. No crime in any of that until you turned to crime. That was the background to the offending. You no doubt hoped to complete the project and earn the big pay day you spoke of in the interview and no doubt then thought that you’d somehow be able to extricate yourself from the unfortunate scenario of having sold these two units twice. Perhaps you would have tried to ease yourself out of that predicament with fast talk or by blaming the agent or offering a refund or perhaps the offer of another unit. Who knows? It doesn’t really matter. Maybe you had not even thought that far ahead.
85You had in the course of your life acquired a decent financial position and it has all been lost. You were declared bankrupt. The company was deregistered. You buried your head in the sand and headed overseas and lived there for some years only coming back when your son was getting married. When overseas you worked back in air freight and back in Melbourne you have worked in a greatly reduced capacity. You have lost everything. You and your wife are now living with your oldest son and his family and paying board. As I’ve said, you have been working in customer service at Metro buses. It is a large fall from grace.
86You perhaps hoped that the matter had been filed away or forgotten. It hadn’t. When police got wind of your return, they interviewed you. From that time, there has been much uncertainty in your life. Then you were charged and that uncertainty increased. You offered to plead guilty in December of 2018, the offer was rejected and ultimately it has been resolved on that same basis. So, from the period when you were charged, you have lived with the dark cloud represented by these criminal proceedings. A dark cloud essentially hovering over your future. That cannot have been easy and I take into account that delay in that manner as a form of separate penalty. These things are spoken of in your counsel’s submissions at paragraphs [12]-[14]. Mr Cummins and Mr Rusu each speak of the impact of having this matter hanging over your head, of the understandable anxiety produced by that.
87You have also stayed out of trouble and tried to re-order your life. That process of staying out of trouble and reordering your life extends far beyond the date when you were charged. You have been engaged with that from shortly after leaving the country. I can’t just ignore the last 8 years. Had you been committing all manner of offences in the 8 years since these crimes were committed, delay would not be you ally in any way. Well, you haven’t.
88When you left Australia within a month of the receivers being called in, though you were not fleeing some active police investigation, there was plainly an aspect of you burying your head in the sand and not confronting any of your responsibilities. It was obviously a stressful time. You knew that things were unravelling. The receivers had come in. Then you were bankrupted and the company deregistered though I am unsure of the order of those two events.
89Your decision to leave the country and then not return for some years explains why we are in Court in 2020 rather than perhaps in 2015 or 2016, if not earlier. Why to some extent I am dealing with a matter that is relatively stale.
90I cannot just ignore your efforts in the period that has elapsed. Those efforts are relevant to my assessment as to your rehabilitative prospects. You have stayed out of trouble. The delay and your efforts in the course of it assists me in making these assessments and it is no answer to say that you have brought on a large part of the delay by going overseas. The case law in this area makes it clear that it is most often an unprofitable exercise conducting an audit as to the reasons for delay. Now the delay would be given more weight if for instance you had at all times been in Australia and the police had interviewed you in say 2013 and the case sat idle for many years for no reason. So if either the police or the prosecution agency sat on their hands and engaged in an unduly leisurely approach to bringing the matter to court for finalisation. That sort of setting would have an offender held unfairly in suspense, awaiting the axe to fall and trying to live their life in the interim. Well, that is not what has happened here. You have had that uncertainty only since being interviewed in March 2018 and that followed your decision to return to Australia only the year before.
91Ultimately, what is important is the impact of the delay and the efforts at rehabilitation occurring in the period that has elapsed. I take into account delay in the two ways urged upon me by your counsel.
92You have grown older. You are now 65 and have for over two years now been staring down the barrel of a prison term. You have been bankrupted. You have been disqualified from holding any office within a company and that prohibition will be extended for at least the next 5 years. It is unlikely that you would hold such a position again. It is unlikely that you would ever be judged to be suitable to conduct such a project as this ever again with two crimes of dishonesty in your ‘kitbag’, not to mention a bankruptcy as well as corporate disqualification.
93As against all of that, as a mature man aged 57, you chose to commit pretty breathtakingly dishonest crimes. This was not some sharp, dubious or lineball business decision. These were serious crimes of dishonesty at a high enough monetary level. Disturbingly, you still to some extent rationalise your conduct. There is the limited remorse here which is actually a bit disturbing. I wish that in the lengthy period since you committed these crimes that you had developed a deep, genuine and complete sense of remorse but for whatever reason, you have not.
94The only reason I am in any way guarded is that you have committed offences as serious as these two and despite your guilty plea, still seemingly do not fully accept your responsibility and fully recognise the seriousness, the dishonesty, as well as the deep impact of your conduct.
95I would expect that the fact of being arrested, interviewed, charged and then sentenced by this Court will all have a sizeable role in deterring you into the future.
96Ultimately, I judge your future prospects favourably. I believe there is a low risk of reoffending in this way in the future. I believe that you have very good prospects of rehabilitation.
Mr Cummins and the two other reports
97I have mentioned already the report of Mr Cummins, the letter from your GP
Dr Baum as well as the letter coming back to him from a psychologist Gabriel Rusu.98I am not going to descend into the detail of the reports and letters. I take them into account in the way ultimately urged upon me by your counsel. There are some physical health issues which I see no need to list. I asked and your counsel was explicit in saying they were not relied upon as in any way increasing your burden of imprisonment. I don’t ignore them.
99There was reference in the written submission to your mental health (see paras 2 d and 32-35) and I wanted to have a clear understanding as to what was actually being relied upon. Your counsel commenced on this topic by telling me that none of the principles from the case of Verdins [1]were in any way being relied upon. No causative connection, no reduction in moral culpability, no reduction in the weight given to general or specific deterrence and no impact upon your prison experience. The anxiety spoken of in the reports was being relied upon as demonstrating the impact upon you of the delay since being charged and since your rejected plea offer and I have already spoken of that a short time ago and take that into account.
[1] [2007] VSCA 102; 16 VR 269; 169 A Crim R 581
100However, at one point, Mr Miller changed tack and seemed to suggest that there was reliance on an increased prison burden arising from a mental health condition. I asked him again whether any limbs from that case were being relied upon, as the case was not mentioned in his written submissions, and he had specifically a short time before made it clear it was not being relied upon in any way. Mr Miller then told me that the 5th limb from the case of Verdins was relied upon. I asked how. There was then some further discussion on that topic and the end position was the same as the position at the start of his submissions. The principles from the case of Verdins were not in any way being relied upon here. That included the 5th limb. In so far as there may have been aspects of Mr Cummins’ report that might be seen to potentially or at least possibly enliven the 5th limb, Mr Miller was explicit in submitting those opinions were not relied upon here (See for instance para [57]).
101Of course, there was still value in the report being placed before me. It set out your background in great detail as well as your level of functioning. There was also the personality testing. The report spoke of the anxieties arising from the sexual abuse at the hands of your stepbrother and the concern that gave you in facing a prison term. Also, the anxiety you have had as to the finalisation of this matter.
102You have been ruminating on the case and that has produced much anxiety. You have some symptoms of post-traumatic stress disorder and a depressive disorder. I take these things into account, just not in a Verdins manner.
Mr Cummins was seeing you in July, August and September 2020, and any opinions from him as to your state of mind in November 2012 are of course speculative. You were plainly under the stress of the project collapsing but you knew what you were doing. The report is less helpful when descending to your account of what had happened, as I mentioned earlier in these reasons when dealing with remorse.103The stresses of the project are actually spoken of in the notes of your GP. It speaks of someone who had bitten off more than they could chew with reports to your GP in 2010 of being under stress owing to the builder going broke and in late 2012 with complaints of increasing stress and then in February 2013, saying that it had all got too much to deal with and that you were heading overseas.
104I take into account these reports and letters. I have also mentioned your sister’s letter. I take that into account as well.
The Offences
105I will turn now briefly back to the two offences. They are undoubtedly both serious. So much is conceded by your counsel. As your counsel concedes, the quantum is large and the impact felt acutely, given the scale of the loss. On two occasions, Mr Miller focussed on the fact that the benefit was not to you, but rather was to the company with the funds being used to finish the project. See paragraph [17] for instance. He stressed that the funds did not ever leave the business (see paragraph [5]). As your counsel says, that is all cold comfort to the victims. He is right. It is.
106It is also in my view, to an extent, overvalued by your Counsel. You had said the same sorts of things to the police and to Mr Cummins.
107No doubt if you had done all this to secure some extravagant lifestyle living ‘high on the hog’ on the funds unlawfully obtained, that would be a matter of some aggravation. That is not what happened. You were desperate to keep the project afloat. You were doing that as you hoped to be handsomely rewarded at the end. Your preparedness to re-sell the units in the way that you did undoubtedly arose in a situation of financial stress but you were trying to keep your project afoot with a view to sizeable reward. You had by reselling the units, engaged in very serious dishonesty. When you resold them, you must have known it would end unhappily for one of the two purchasers of each unit. It was a matter of which I suppose and you did not much care. You had your eyes on the prize, a prize that you probably thought would be big enough to use to placate the disenchanted “buyer”, whoever that was.
108This was seriously criminal behaviour. Speculate all you like with your own money or even the banks but as the prosecutor submitted correctly, you had converted the Tucci’s into your financiers and they had no idea they were. They were purchasers who trusted you. It was serious criminal conduct notwithstanding that the money went back into the project. You were prepared to do anything to complete the project and that is not mitigatory.
109I suppose it would be more serious if it hadn’t been put back into the project for in such a setting, I would be dealing with the obtaining of the funds to satisfy your greed there and then. That setting of wanton greed would likely have a higher level of culpability. Anyway, I am not dealing with you for what you haven’t done. I must deal with you for what you have done and your criminal culpability was high here.
110Your counsel submitted it was not planned offending but was based on the desperation of finishing the project (see paragraph [18]). The fact is, it was both planned and desperate. You knew the two units had been sold. You did not tell the agent that fact and then signed the fresh contracts which were for larger sums. You didn’t tell the Tucci’s. You didn’t tell the new purchasers. This was hardly unplanned. None of this is in any way justified or excused by your desire to complete the project. The ends will not justify the means. You were duty bound not to resell these units and the moment you did and ‘kept mum’ about it to the Tucci’s, you were engaging in serious criminal conduct. You knew you were.
Purposes
111I turn now briefly to make some comments about the purposes of sentencing and the various other matters which I must have regard to. Sentencing would be far easier a task if all a Judge had to take into account was the rehabilitation of the offender. Probably few, if any, people would be locked up in such a setting as that. Sentencing is a far more complex task than that.
112There are other purposes of sentencing which must be adequately reflected in the ultimate sentence.
113No doubt the best thing for you and for your family would be for you to be remaining at home and remaining employed. To go nowhere near a prison.
114My task is a much more complex one than just looking at what is best for you.
115I must give appropriate weight to the other purposes of sentencing. To specific and general deterrence, to protection of the community, to denunciation and to punishment. Rehabilitation is also a purpose of sentencing, one often enough overlooked in the popular media. As I have said, I believe your future prospects are very good. I do not ignore them. Your rehabilitation, though still of importance, must surrender some ground to other purposes and general deterrence is an important purpose of sentencing in this sort of case notwithstanding the delay.
116Punishment is also an important sentencing purpose in this case. You must be punished. I must impose a just and proportionate sentence in relation to your offending.
117I must also denounce your conduct. Denunciation is also an important sentencing purpose here. You were in charge of the project. You were the Company Secretary and Director and acted very dishonestly. You should be ashamed of your conduct, a good deal more ashamed than you actually are. I must strongly denounce your conduct.
118I must deter you from offending in the future. That purpose is known by us lawyers as the principle of specific deterrence. You have very favourable prospects into the future. A low risk of reoffending in this way ever again. I can significantly moderate the weight that I give to this purpose. I cannot ignore it. I wish that you had a greater acceptance of your serious dishonest conduct but you do not.
119No doubt I would give specific deterrence far greater weight in a case with an offender with a relevant past criminal history. Far more weight in a case where there were less favourable future prospects and I thought there was a higher risk of re-offending. However, that is not the position here and given my views as to your very good future prospects and your low risk of reoffending, it just stands to reason that there can be this sizeable moderation I have spoken of.
120The same things apply with equal force to community protection. The community has never needed protection from you in the past and hopefully won’t again in the future. Nor has it in the 8 years since this offending, so again, there can be sizeable moderation of this purpose. It could make no sense to give great weight to that sentencing purpose.
121So, there can be this moderation of specific deterrence and community protection.
122General deterrence is in a different position. That concept relates to the need to deter others. It is an important purpose of sentencing in this sort of case, one involving serious dishonesty committed by a developer in the course of his duties as company Director and Secretary. You had a superior understanding of the issues with this development. Of the financial position of the Company. You were after all the Director and Secretary. In that role, you committed serious criminal conduct. The Tucci’s were customers of the Company. The moment you entered into the second contracts to resell, you were committing an unmistakably serious crime, and knew you were. The impact has been very sizeable. These people trusted you. Members of the public must be able to engage in a trusting manner with those engaged in this sort of development. Developers must understand that the ends will never justify the means and that serious acts of dishonesty such as yours will be rewarded with sizeable prison terms. This court must send a loud message to others in the community who may be tempted to offend in the way that you did.
123I must pay regard to the maximum penalties and the impact of your crime.
The impact has been sizeable as is conceded.124I must also take into account current sentencing practices. That is not a controlling factor.
125Statistical material always has limitations. The Sentencing Advisory Council Snapshot No. 229 of 2019 for the offence of obtaining financial advantage by deception is of no great value. It shows that not every offender was sent to prison and for those that were, that the most common sentence fell in the range of 2 to less than 3 years. But so what? What does that say about the sentences required here? Nothing. The offence of obtaining financial advantage by deception covers such a wide range of different factual settings. Differing durations and values and relationships. Some indictments may roll up many acts into a single charge. Some not. Some charges may relate to millions of dollars obtained. Then there are the host of different features of the individual offender. The fact of and stage of plea, the presence of remorse and the extent of rehabilitative prospects and future risk. The statistical material is always silent about the individual features of the offence or the offender. All of the details which might explain the sentence are omitted. Nor is there any such thing as one correct sentence.
126I have looked at the cases to which I was referred by the Mr Miller. He simply provided an extract from the Judicial College of Victoria Manual where suspended sentences had been employed. There was no suggestion that the cases were comparable. In fact plainly they were not. Three of the cases were matters that went to the Court of Appeal. The balance were simply examples of cases where a Judge in this Court had imposed a suspended sentence.
127I am heartily sick of being referred off to decisions of Judges of this Court. There is always an aspect of cherry picking of cases placed before the Court. The cases are all different. None is on all fours and they are virtually of no use to me. Mr Miller or the prosecutor could have as easily referred me off to tens if not hundreds of other cases where suspended sentences were deemed inadequate by Judges in this Court. That would also have very little value.
128The Court of Appeal decisions were not on all fours. In Kumar[2], omitted from the summary is the fact that he received a 50% discount for assistance and that the end sentence was judged to be extremely merciful. I am not, by the way, suggesting that Mr Miller has omitted that from the summary. He has placed before me the summary that exists in the JCV manual. Marannu[3] was a 21 year old offender who was dominated by her husband to obtain a second mortgage, one that occasioned no actual loss in the sense that she continued to service the loan. She was also said to be a minor offender. Strangio[4] had an unusual procedural history which rendered the very lenient outcome unique. None of the cases is on all fours. There are differences in offence detail as well as in matters of aggravation and mitigation.
[2] [2012] VSCA 35
[3] [2011] VSCA 105
[4] [2017] VSCA 6
129Other cases will never provide the answer to my task. They are not precedents or authorities. There are always differences in the offending and in the personal circumstances and that is borne out by reading the various cases I was referred to here.
130I am not passing sentence in those other cases. What I have to do is pass an appropriate sentence in your case for your crimes.
A term of imprisonment is required
131Prison is a disposition of last resort. Your counsel conceded the inevitability of a prison term in his oral submissions to me. You have not to this point served a day in prison. His written and oral submission focussed on the ability of the Court to wholly suspend whatever prison sentence was actually imposed.
132A suspended sentence of imprisonment is still a term of imprisonment. There was the unusual secondary submission as to the availability of a standalone community corrections order, unusual as that disposition sits below a prison term on the sentencing hierarchy.
133Mr Miller made it clear he was not pressing for a standalone community corrections order or even one in combination with a prison term. He made it clear that his central submission was for a wholly suspended prison term, which involved a concession as to a prison term being warranted in this case.
134That does not relieve me of the need to eliminate from the available sentencing dispositions a community corrections order option. I am after all exercising my sentencing discretion and am not bound to accept sentencing submissions made to me by either party.
135Prison is a disposition of last resort. If confinement can be avoided, it must be. That is the law. As a matter of law, if a suitably conditioned community corrections order would achieve all the needs of sentencing in this case, then I would proceed in such a way, whatever the parties may have submitted as to the inevitability of prison. That is the effect of section 5(4C) of the Sentencing Act1991.
136It is as plain to me as it was to your own counsel that a standalone community corrections order could not achieve the various purposes of sentencing in this case. General deterrence in particular is a significant sentencing purpose. So too denunciation. Prison is just unavoidable, as was in fact conceded.
137Nor for the same reasons do I believe that a combination order is open here. I must impose a sizeable prison term. The dimensions of that term preclude a community corrections order.
Totality
138I have taken a last look at the orders that I intend to make to guard against a crushing outcome and to ensure that the total effect of my sentence is commensurate with your criminality here. Your conduct occurred in the setting of your desperation to complete the project. The two charges occurred in the same time frame. However, they were separate crimes committed upon separate victims and each of course have been acutely affected. They are not a job lot because they happen to be related. Your culpability was high in this case.
Compensation Orders
139Application has been made for compensation orders under the provisions of section 86 of the Sentencing Act 1991. Those orders are consented to. I take that into account in your favour and I now pronounce those orders in an abbreviated fashion. I've signed the orders. I am satisfied that is appropriate to make these orders in favour of Michael Tucci and Laura Tucci owing to the fact that you have been convicted of the offence of obtaining financial advantage by deception. I am satisfied that there has been the loss referred to in the document. I order then that you pay to Michael Tucci and Laura Tucci compensation in the sum of $215,000.00.
140Further, in the case of Franco Tucci and Marie Tucci, again I am satisfied that as a result of the commission of the offence of obtain financial advantage deception that they too have suffered the loss referred to in the document. I order then that in their case you pay to Franco Tucci and his wife Marie Tucci, compensation in the sum of $260,000.00.
Sentence
141Prison is unavoidable here. That last resort is easily reached for the reasons I have discussed including the nature of your dishonesty, your position, the scale of the financial advantage obtained, here $475,000, and the significant impact caused.
142The conduct embraced by the two charges occurred in the same month and involved an offence obviously of the same character. No doubt, I could impose individual sentences, pronounce one as the base sentence and make an order for some degree of cumulation but I believe it is both open and appropriate to impose an aggregate sentence here. The end outcome would of course be the same.
143Stand up please.
144On Charges 1 and 2 on the indictment you are convicted and sentenced to an aggregate term of 34 months or 2 years and 10 months' imprisonment.
145That is not the end of the matter. This leaves the question of how that term ought be served, if at all, and if it is to be served, whether I make an order for partial suspension or alternatively fix a non-parole period.
Immediate term required
146Ultimately, despite all of the material presented on your behalf, I am satisfied that you must actually serve an immediate term of imprisonment in this case. I believe that there must in fact be a sizeable immediate component. I am simply not satisfied that it is desirable to wholly suspend the term I have imposed. In considering that issue, I have considered the matters spelt out in the provisions of s.27(1)(A) of the Sentencing Act 1991. I have concluded that given the nature of the offences and the impact on your victims, a wholly suspended sentence would not adequately manifest the court’s denunciation nor adequately deter others or reflect the true gravity of the offending. What message would it really send to other Directors out there, to other developers running building projects, to those others who might be tempted to put the completion of a project ahead of their duties and responsibilities to customers, if you are not sent to prison? For you not be sent immediately to prison in a setting where you have committed serious dishonesty offences with $475,000.00 obtained by way of financial advantage and that level of loss to your victims, it would, as far as I am concerned, send entirely the wrong message to other potential offenders out there.
147I then have to consider whether I should partially suspend the term or instead, fix a non-parole period.
148I see no great need to make provision for your possible release on parole. I believe that it is appropriate to make an order for partial suspension. I direct that 16 months of the 34 month sentence be suspended for an operational period of three years.
149 I am now obliged to explain to you the effect and purpose of this order and I appreciate that as you are standing there now it might all be something of an unpleasant blur for you but no doubt these things will be explained again to you by your counsel. I have imposed a term of 34 months' imprisonment. I have ordered that you serve immediately the period of 18 months. So you will go to prison for 18 months. Once you have served the term that has to be served immediately, that is the 18 month term, you will be released with the balance of the sentence suspended for the operational period that I have pronounced from today’s date. I have considered the terms of s.27(1)(A) of the Sentencing Act 1991 and I am satisfied it is desirable that the sentence that I intend to impose upon you should be partially suspended in the way that I have described. I need to inform you of two things.
150 Firstly, the purpose and effect of this order. Well, the purpose and effect of the order for suspension is to enable your certain release from prison at a specified date in the future once you have served part of that sentence, here, namely 18 months. There will be no question of you being assessed for eligibility for any order for parole. You will not be on parole. You will just be released.
151 Secondly, once you are released from prison, the balance of that sentence, namely 16 months, will be suspended over your head for a period of three years from today’s date. That is known as the operational period. You will have that 16 month prison sentence hanging over you. You should understand that if, during the operational period of that sentence, so for three years from today's date, if you commit another offence punishable by imprisonment, whether in or outside Victoria, in the absence of exceptional circumstances, you should expect to be brought back before this court and re-sentenced to the balance of that suspended term being the 16 months.
152 I want to make it very plain to you that but for the delay in this matter, there could have been no question of structuring a sentence such that a suspended sentence would have even been open. A head sentence above three years would have been a certainty and such a sentence could not have been the subject of any suspended sentence order. Instead, a non-parole period would have been selected.
153 However, given the various matters in mitigation including the lengthy time that has elapsed, your efforts at rehabilitation in that period and the impact of the delay over the last couple of years especially, I believe a sentence of the dimension I am imposing is open and so too an order for partial suspension. Your conduct is just too serious to avoid a sizeable immediate prison term.
Section 6AAA
154I have taken into account the guilty plea in this case. If you had pleaded not guilty and been found guilty of these offences, I would have convicted and sentenced you to a term of 4 years 4 months' imprisonment. I would have fixed a non-parole period of two years 10 months and that statement is to be entered into the records of the court.
Nil section 18 PSD
155There is no pre-sentence detention to declare in this case. Have a seat please, Mr Stevens.
156Are there any other matters at all? Any other matters, Mr Pickering?
157MR PICKERING: No. Any other matters, Mr Miller, or not?
158MR MILLER: No, Your Honour.
159HIS HONOUR: You will go down and see your client downstairs obviously and take him through these various things and presumably also the various steps he'll need to take in terms of getting family members on phone logs and that sort of thing but are you wanting me to make any sort of custody management directions at all or not?
160MR MILLER: If it could be noted that it is his first time in custody and he will be vulnerable due to age and appearance.
161HIS HONOUR: Well, I mean his age and appearance is what it is and I'll specify then it is Mr Stevens first time in custody so please take all care.
162MR MILLER: And also that he has some medication and some prescriptions. I suppose that will be filtered out by the nurse when he arrives.
163HIS HONOUR: I am not prescribing medication for him. He will be seen, he will need to specify - or for that matter your instructors can specify what his current medication regime is but he has some medical issues.
164MR MILLER: Yes.
165HIS HONOUR: Including type 2 diabetes?
166MR MILLER: Yes, a condition requiring cholesterol lowering medication.
167HIS HONOUR: As I say I am not going to spell out his medication regime. I'm just looking at the things that might be more urgent than other things. He has some medical issues including type 2 diabetes and will need medication.
168MR MILLER: Thank you.
169HIS HONOUR: I will have that endorsed on the document. As I say if your instructors with to provide to Corrections a full list of medications they'll be free to do that but I am always cautious about doing that, I can have some sort of slip up in terms of a decimal point or something like that, it is not for me to do that. But he will be seen upon his receipt and will be in a position to speak and describe the conditions that he has and the medication that he has. All right.
170MR MILLER: As Your Honour pleases.
171HIS HONOUR: You will go down and see him downstairs?
172MR MILLER: Yes. I'll sign the formal orders downstairs so that completes the matter. Mr Stevens can be removed and your counsel will come down and see you downstairs, Mr Stevens. Mr Miller will come down and see you downstairs, all right?
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