Director of Public Prosecutions v Swan
[2018] VCC 1842
•13 November 2018
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-14-00204
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TANYA VIRGINIA SWAN |
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JUDGE: | HER HONOUR JUDGE HOGAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 3-7 September 2018 (pre-trial) | |
DATE OF SENTENCE: | 13 November 2018 | |
CASE MAY BE CITED AS: | DPP v Swan | |
MEDIUM NEUTRAL CITATION: | [2018] VCC 1842 | |
REASONS FOR SENTENCE
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Subject:
Catchwords: Two charges of obtaining a financial advantage by deception, namely, a home loan of $960,000 (Charge 1) and of $1.28 million (Charge 2)
Legislation Cited:
Cases Cited:
Sentence:
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr YK Hardjadibrata | Solicitor for the Director of Public Prosecutions |
| For the Accused | Mr M Thomas | Furstenberg Law |
HER HONOUR:
1 Tanya Virginia Swan, following a jury trial, you have been convicted of two charges of obtaining a financial advantage by deception. Each of these charges carries a maximum penalty of 10 years’ imprisonment.
2 Your offending on Charge 1 involves obtaining a home loan in the sum of $960,000 from Westpac Banking Corporation on 16 March 2012. Your offending on Charge 2 involves your obtaining a home loan in the sum of $1,280,000 from Westpac Banking Corporation on 8 June 2012.
3 For approximately eight years prior to your offending, you had been a single parent of two children, albeit that you had been in a number of relationships during that time and were apparently in a relationship with Lex Carter, who was an architect, at the time of your offending. At the time of your offending, you were in receipt of Centrelink single parenting benefits, as well as income of $2,390 per month by way of rental from a property at 46 Valley Parade, Glen Iris (“the Glen Iris property”). The Glen Iris property had been purchased by yourself and your late father some years earlier. Following his death in 2009, via some interest of your mother, your father’s share was ultimately transferred to you in 2012. In or about March 2012, you were formally registered as the sole proprietor of this property, which was unencumbered. The property was valued by Westpac Bank at $1,200,000.
4 On 8 February 2012, you signed a contract to purchase another property, namely, 43 Finch Street, East Malvern (“the Malvern property”) for $1,600,000. Apparently, $100,000 of the deposit came from an inheritance from your late father’s estate. You planned to demolish the house on the Glen Iris property and to build two town houses on the land. You also planned to renovate the Malvern property so that you and your two children could live in it. This was so that your children could live in the location zone to qualify for attendance at a primary school in that area.
5 Your intimate partner, Mr Carter, introduced you to a friend of his called Noel Parsons, who was a finance broker. He, in turn, introduced you to Mr Jason Fischman, who was somehow involved with Mr Parsons’ finance brokerage business. Prior to meeting you, Mr Fischman had introduced some clients of his to the home finance manager of the Balaclava Branch of the Westpac Bank, Ms Natalie Shafir, in order to obtain finance for property purchases.
6 On 14 February 2012, you attended the Balaclava Branch of the Westpac Bank. You were accompanied by Mr Carter and Mr Fischman and the three of you attended a meeting with Ms Shafir. The purpose of this meeting was for you to make application for a loan of $960,000 in order to develop the Glen Iris property and a second loan of $1,280,000 to help purchase and renovate the Malvern property.
7 Before the jury, Ms Shafir gave evidence that, at the meeting on 14 February 2012, she asked you questions which you orally answered concerning your income, assets, expenses and financial liabilities. She stated that you told her that you were working as a sales marketing manager for Australian Rigging and Lifting Pty Ltd and you provided several documents in support of your application. These included a PAYG payment summary for the year ending 30 June 2011 in your name, showing gross payments of $390,000 to you from Australian Rigging Supply Pty Ltd; two payslips from Australian Rigging and Lifting Pty Ltd for the fortnights ending 23 January 2012 and 6 February 2012 for yourself, showing you to have a classification of national marketing manager, an annual salary of $390,000, a gross fortnightly pay of $15,000 and a net fortnightly pay of $8,900; and Commonwealth Bank statements for the period from 1 November 2011 to 31 January 2012 in your name, which showed fortnightly credits by way of deposits of $8,900, described as wages from Australian Rigging. All of these documents were false, in that you had not been employed for some eight years.
8 On the basis of your oral answers and the information in the documents supplied, Ms Shafir stated that she compiled a “live” loan application, there and then, in the meeting. The first application was for a loan of $960,000, which was to be the subject of a mortgage over the Glen Iris property. The second application was for $1,280,000, which was to be secured by a mortgage over the Malvern property. You signed both of those applications on that day.
9 On 8 March 2012, you returned to the bank in the company of Mr Carter and signed formal loan documents relating to each of the applications. Ms Shafir stated that you read over the loan offers which were being accepted by you and which were accompanied by the applications which you had signed on 14 February 2012.
10 On 16 March 2012, the loan of $960,000 relating to the Glen Iris property was advanced to you. On 8 June 2012, the loan of $1,280,000 relating to the Malvern property was advanced to you.
11 Ms Shafir gave evidence that, in August 2012, you again approached her asking for a construction loan. She asked whether there had been any alteration to your circumstances by way of income or employment and, when you stated that there had not been, Ms Shafir advised that she could not assist you, as you could not afford another loan.
12 On 14 June 2013, you approached Mr Tom Collie, who was employed in the private banking sector of Westpac. Mr Collie gave evidence that he had made contact with you because your name had been on a list of clients with large loan balances which had come from the retail part of Westpac to the private banking section. He stated that, when you met on 14 June 2013, you told him various things about yourself. These included that you had the Malvern property, which you were renovating, and the Glen Iris property, which was a future development site. You stated that you worked in a marketing role with a company you had been with on and off for quite a period of time and your income was approximately $250,000 per year. You also mentioned that either you or your broker were under some kind of investigation in relation to the earlier loans.
13 The meeting with Mr Collie was for the purpose of obtaining a potential loan, but supportive documentation was never supplied to him and, ultimately, no loan was advanced to you by the private banking system.
14 On 24 July 2013, you were interviewed by police. You stated that you were unemployed and on Centrelink payments and sometimes had to borrow from family and friends, and were a single parent, living hand to mouth, trying to make ends meet. You stated that you had never seen the false PAYG payment summary and said that the broker would have done it to get the loan passed through. You had been to see the brokers in St Kilda two or three times and were told that you must prove to the bank that you had an income in order to support the loan. You stated that they told you that they would take care of everything and you were assured that everything was going to be okay, and they had done it a million times before. You stated that you were told by them that you did not need to have an income since you had an asset, and you did not need to be working as the funds supplied would pay for the loan.
15 In your record of interview, you agreed that your loan application stated that you did earn wages and that was to get the loan put through. However, you stated that you never told the bank you had an income of $390,000 and that, at the meeting with the bank, the broker answered questions on your behalf. You simply signed what was put in front of you and stated that income was not really brought up, and you could not recall if income was discussed in your presence. In response to police alleging that the information provided to the bank was false, you stated that you provided information to “the finance guys”, who said they would take care of everything.
16 The evidence from Ms Shafir before the jury was that, had the bank been aware that you did not have the income as falsely represented to the bank, then the loans would not have been advanced to you, as there was a need for both equity and income in order for the loans to be granted.
17 Your defence at trial was that you knew nothing of the false representations made to the bank or the false documentation supplied in support of them, and that you had relied solely upon your broker who handled everything. You did not give evidence at trial, which, of course, is your legal entitlement.
18 At trial, in addition to the evidence of Ms Shafir, the prosecution relied upon evidence that you had given on oath at an earlier trial in 2017 where the jury had been unable to arrive at a verdict. At that trial, you had given sworn evidence, including evidence that the first occasion upon which you had become aware of the false loan applications was when you met with Tom Collie on 14 June 2013. The evidence of Mr Collie was that, at that meeting, he had no knowledge of anything to do with the earlier applications or false supporting documentation, as that was not information to which he was privy in the private banking sector, which is separate from the retail banking sector.
19 As a matter of fairness, it was agreed between the parties that it should not be made known to the jury that you had made this statement on oath at the earlier trial. However the statement on oath by you was relied upon by the prosecution as evidence of post-incriminating conduct. That is, it was a lie by you on oath that you had only become aware of the false loan applications and supporting documentation when you saw Tom Collie one year and four months after making the loan applications. It was a deliberate lie and the only explanation for it was that you believed that you had committed the offences as charged. In other words, had you admitted that you knew of the false representations back at the time of making the loan applications in February 2012, rather than over a year later on 14 June 2013 when you spoke to Tom Collie, then that would demonstrate that you had been deceptive. This was how your statement was relied upon by the prosecution at trial.
20 It should be mentioned that both Mr Jason Fischman, the broker, and your now former partner, Mr Lex Carter, were both called as witnesses in the trial as part of the prosecution’s obligation to call all relevant witnesses, but were not relied upon by the prosecution. Mr Fischman had admitted that he was involved with one of the Australian Rigging companies which were mentioned in the false documentation, and that his brother-in-law was the person who had signed the false PAYG summary from Australian Rigging Supply Pty Ltd. He also admitted that Mr Parsons, to whom you had been introduced by Lex Carter, was a co-owner of Australian Rigging.
21 Mr Fischman was interviewed by police in May 2014 as a suspect concerning the making of the false documents which were produced to the bank. He had denied in an earlier statement that he had made those documents, and then made a “no comment” record of interview. Ultimately, he was not charged. On the basis that he was possibly criminally concerned with the making of the false documents, and the other matters to which I have referred, the jury were given an unreliable witness warning in relation to him.
22 As far as Mr Carter was concerned, there was evidence that he was the architect of the plans for your property development and had a potential interest in ensuring that the loans were obtained in order for the plans to go ahead. He was not an independent witness because he had had a falling out with you and was embroiled in family law proceedings in order to recover from you what he claimed was $100,000 owed to him by you in relation to the Malvern property. Accordingly, an unreliable witness warning was also given in relation to him.
23 The defence case run on your behalf was that you did not dispute that you had obtained the financial advantage by having each loan advanced to you, but you denied that you had acted deceptively. It was put to Ms Shafir that you had not personally made any false representations, and it was put to the jury that you were not party to any agreement that the broker made false representations on your behalf. Essentially, you argued that Jason Fischman had told you that you should be able to obtain the loans on the basis of your equity in the Glen Iris property and not to worry about it because he would take care of everything, and you just literally let them do it because they were the experts and you were told by them not to worry.
24 It was argued on your behalf that the prosecution could not exclude, as a reasonable possibility, that the deception was committed by another or others in order to get the loan through, particularly in the light of Jason Fischman having received a commission of 1.1 per cent of the total loan amounts, namely $24,000, and also having an association with Australian Rigging Supply Pty Ltd, as well as an existing relationship with the home loans manager at the Balaclava bank, Ms Shafir.
25 The prosecution had conceded that it was possible that Mr Fischman had produced the false documents. It was put on your behalf that the prosecution could not exclude, as a reasonable possibility, that there had been a meeting between Ms Shafir and Mr Fischman after you left the meeting on 14 February 2012 at which the false representations and/or documents were provided.
26 Clearly, the jury did not accept the submissions made on your behalf and were satisfied beyond reasonable doubt that you made either false oral representations concerning your employment and salary or represented that either the PAYG certificate or payslips or false bank statements were genuine.
27 You are presently aged 50, almost 51 years, having been born on 12 December 1967. You come become the court with no prior or subsequent criminal history and no matters pending. Your counsel, Mr Thomas, urged that the court should take this into account in relation to your prospects of rehabilitation and conclude that you are unlikely to further offend.
28 Mr Thomas submitted that your primary concern in the offending was to ensure a stable and secure home for your children. Certainly you stated that that was so in your record of interview. However, it is difficult to understand why this could not have been achieved without committing these offences. You were born in Sri Lanka. Your mother is of Sri Lankan and Portuguese background and is a retired teacher, who worked in Montessori schools. Your father was of Irish and Dutch heritage and was an engineer, who initially worked in Sri Lanka with the Corps of Engineers for the United Nations. You had a relatively privileged background, having started school at St Michael’s, initially in Malvern and then in North Melbourne.
29 From ages 11 to 16 you attended an international school in Saudi Arabia, where your father was working. You returned to Melbourne and commenced Year 10 at Mandeville Hall in Toorak, but left before completing Year 12. After being taken by your father on a holiday to Japan for a couple of months, you then undertook a three year Diploma of Hotel Management at William Angliss and began working in catering. At age 21, you moved to London and worked for a time with a personal relations company and then returned to Melbourne at age 25, where you worked for Country Road on a catering contract. You apparently catered for large numbers of people daily, as well as functions, and had a staff of approximately 40 people. You later studied architecture for a year, but did not pursue that course and, instead, undertook a two year Diploma of Interior Design at Holmesglen Institute. After completing the diploma, you taught cooking at Holmesglen TAFE for two years.
30 You ceased working subsequent to the birth of your first child, who is now 13 years. You have a second child, now 11 years of age, who has a different father from your first child. Neither of the fathers of your children have played a role in their upbringing. In particular, the father of your younger child was violent and abusive towards you and the children and, in 2008, the situation came to the notice of the Department of Human Services. A report dated 28 February 2008 details a stressful situation, with you being reluctant to leave your younger child’s father but, ultimately, did so with some encouragement from police and a child protection worker, and an Intervention Order was taken out. (Exhibit “3”)
31 Since then, it appears you have gone from one relationship to another, and your children have been exposed to a series of different partners of yours. You appear to have been largely financially supported by each of those partners, but received Centrelink benefits at various intervals.
32 It is difficult to understand why, given your training and work experience, and the fact that you had an unencumbered property at Glen Iris valued at $1.2 million, you could not have gone about providing security for your children in another way.
33 In your record of interview, you told police that you could not possibly have lived in the Glen Iris property because it was too run down. However, I note that you were renting it out for others to live in at $2,390 per month.[1]
[1]Answer to Question 258 in the record of interview
34 The material before the court gives me the impression that you are a person who has a sense of entitlement and social ambitions above your financial means.
35 The arrangement into which you entered whereby you were essentially paying off the interest on both loans by using the drawdown facility on the loan relating to the Glen Iris property is quite extraordinary. Needless to say, you battled to keep up the $10,000 per month payments. Towards the end of 2013, the Malvern property was sold and the bank was paid back the money owed to it, so it ultimately did not suffer financial loss. However, it is plain that a great deal of time, effort and resources was expended by the bank and police in investigating your offending conduct, for which you still decline to take responsibility.
36 Whilst the Crown concedes that it is possible that Mr Fischman produced the false documents in support of your loan application, and on the evidence it would appear that Mr Carter had invested a good deal of time and effort, and apparently money, in relation to the plans for renovating the Malvern property and the construction of the townhouses on the Glen Iris property and, hence, both appear to have had an interest in your loans being approved (particularly Mr Fischman who derived commission of $24,000), you were the person who ultimately stood to gain most by having the loans granted to you.
37 For reasons best known to yourself, notwithstanding that you had skills as a caterer and interior designer – both jobs which one might think you could have run from home whilst you had school age children – you decided that you would become a property developer. It seems to me that at least part of the motivation for your offending was a desire to create wealth for yourself in this way, when you had no experience in it and had not worked for eight years, rather than using the skills that you had to earn an honest living.
38 Tendered at the plea hearing was a report from Victorian Forensic and Clinical Consulting dated 25 October 2018 authored by Daria Sizenko, provisional psychologist, and co-signed by Pamela Matthews, forensic psychologist (Exhibit “2”). This is not a report from a treating psychologist but rather the product of one consultation on 23 October 2018.
39 In the history taken by the authors, you continued to claim that you were unaware of any false financial record, effectively laying blame on Jason Fischman and Lex Carter, and stating that you only signed where you were asked to. You stated that you “can’t put 4 and 8 together without confusing (your) self”. This appears to be at odds with your history that, when at school in Saudi Arabia, you were a “straight-A student” and, also, with a number of answers in your record of interview which revealed that you had organised a couple of bank loans in the past (albeit apparently more straightforward than the subject loans)[2] and that, as far as the building work on the Malvern property was concerned, you “had a whole lot of specs which I’d gone through” and “in dealing with the builder ‘I was so diligent about everything coz every cent counted’ and effectively told the builder that he could not add various costs which he was claiming as extras [as they] were already included”.[3]
[2]Questions and answers 442-3 of the record of interview
[3]Record of interview, question and answer 274 and 279
40 I do take into account that apparently your financial situation was made somewhat worse by some fraudulent behaviour by your builder, David Knight, although this occurred after you had committed the offences for which I must sentence you. You made a complaint about Mr Knight to the police. He was originally charged with four offences of obtaining a financial advantage by deception. However, three of the charges were withdrawn. At the Melbourne Magistrates’ Court on 22 April 2014, he pleaded guilty to one charge involving a false invoice of $6,050 for plumbing work. The matter was adjourned by the Court to 21 July 2014 for a diversion plan. On 25 August 2014 the Court discharged Mr Knight noting that the diversion had been completed.[4]
[4]Exhibit “D” on the plea hearing.
41 You gave a history, which is recorded in the psychological report, that you had a poor relationship with your mother, who appeared not to like you and was verbally and psychologically abusive to you. However, you were close to your father. You gave a history that you had been the subject of sexual offending as a child in two discrete contexts when you were of pre-school age and shortly after commencing school and, later, when you appear to have been in your late teens. None of the alleged offending was reported to the police as you elected to “keep it private”.
42 You described the father of your daughter as having become physically and verbally violent after she was born, and then, when you took up with Lex Carter, that he was verbally abusive and domineering towards you. You told the psychologist that you had been “self-medicating with Valium for many years” and “also drinking alcohol before bed to ‘numb the head’” and that you were “constantly on ‘uppers and downers’ but (were) unable to recall what stimulant drugs or medication you may have been using”. You had since stopped drinking alcohol and reduced your Valium use and now take four tablets of Panadol most nights to aid your sleep.
43 In addition, you were diagnosed with Diabetes Type 1 at the age of 35 years. You have a subcutaneous implant in your upper left arm, which allows you to check your glucose levels, and had a number of presentations to hospital referable to this condition. Indeed, a letter from the Baker Heart and Diabetes Institute, tendered as Exhibit “1”, dated 9 October 2018 noted that you had Type 1 Diabetes which was in an unstable state. You had had multiple episodes of hyperglycaemia and hypoglycaemia and had been hospitalised on multiple occasions in the past two years with diabetic ketoacidosis. You require multiple injections a day and need to monitor your blood glucose levels frequently, as you are at risk of serious and permanent medical complications. The condition is aggravated by stress. A letter from your general practitioner’s rooms notes the need to use a Levemir Flex Pen injection and a NovoRapid Penfill for your diabetes, as well as medication for elevated cholesterol and another medication for herpes (Exhibit “4”).
44 The psychologist considered that you presented with Post-Traumatic Stress Disorder relating to your history of alleged sexual offending against you, and that your symptoms are active and currently exacerbated by your current legal situation. The psychologist assessed you as also presenting with a borderline personality disorder with pervasive patterns of instability of interpersonal relationships, self-image and effects and marked impulsivity, beginning in early adulthood and presenting in a variety of contexts.
45 I note that a number of the matters relied upon in support of the diagnosis of borderline personality disorder overlap with some of the symptoms of Post-Traumatic Stress Disorder, particularly unstable interpersonal relationships and anger and dissociative symptoms. The psychologist noted that physical and sexual abuse, neglect, hostile conflict and early parental loss are more common in the childhood histories of those with a borderline personality disorder. The author also considered that your symptoms of Post-Traumatic Stress Disorder and personality disorder are interactive and compulsively repetitive. For example, you seek security in relationships with men, but invariably reject attachment relationships which may offer this, and persist with relationships which re-victimise you.
46 I consider that the authors of this report have stepped beyond their professional role in stating that it is highly likely that you offended in the emotional context of a highly dysfunctional relationship and that that was linked to you developmental history of attachment disruption/pathology and child abuse. However, I do note that they remarked that you were likely to be instantly suicidal if imprisonment was imposed and that you would need psychiatric monitoring and support until you stabilised. Also, should your children be placed with your mother or another, there is likely to be an ongoing risk of suicide. (I here note that your children have been placed in the care of your mother.) The report concludes with a statement that:
“From a rehabilitative perspective (you) require a long-term consistent therapeutic relationship of two to five years with a psychologist who is a trained dialectical behavioural therapist, which is therapy specifically formulated for a personality disorder.”
47 On your behalf, Mr Thomas conceded the difficulty of attributing those parts of your psychological presentation to a Post-Traumatic Stress Disorder, as distinct from your diagnosed borderline personality disorder. He conceded that limbs 1-4 of the principles in R v Verdins,[5] did not apply, but urged that the court find that limbs 5 and 6 of Verdins did apply, in that imprisonment is likely to be more burdensome for you because of your Post-Traumatic Stress Disorder and also is likely to enhance your psychological symptoms.
[5](2007) 16 VR 269
48 Tendered today as Exhibit “7” on your behalf was an affidavit from your brother, Nigel Paul Swan, sworn on 12 November 2018. I do not propose to recite from that affidavit, however, he confirms personally having witnessed two incidents consistent with sexual abuse of you by a male relative in 1974 and 1975. He states also that he was present in London in 1992 when you disclosed to your parents that you had been subjected to regular sexual abuse by two male relatives over a period of some five years in the 1970s.
49 In the circumstances, I accept on the balance of probabilities, that you have been subjected to criminal conduct to which no child should ever be subjected. The long term serious psychological impact of such abuse has been acknowledged, particularly in the wake of the Royal Commission Into Institutional Responses to Child Sexual Abuse.
50 I must say I find it impossible to tease out what aspects of your presentation might be referrable to Post-Traumatic Stress Disorder, as distinct from your borderline personality disorder but, as a matter of fairness, your personal circumstances must be taken into account in mitigation in the sense that a person with the psychological problems exhibited by you is likely to find imprisonment difficult and there is a risk that imprisonment will cause your mental health to deteriorate. These circumstance include difficulty sleeping and intrusive memories and hypervigilance, which appear to be related to your Post-Traumatic Stress Disorder. They also include difficulties trusting others, unstable and intense interpersonal relationships, impulsivity, instability or mood and intense anger or difficulty controlling anger, together with identity disturbance, feelings of emptiness and paranoid ideation or severe dissociative symptoms referable to your borderline personality disorder and, in part, to your Post-Traumatic Stress Disorder.
51 I do take into account that, with no past criminal history and being almost 51 years of age, you would most likely find a term of imprisonment difficult, and that these features of your psychological presentation are likely to make it more burdensome for you than for others who do not have those features, and that there is a real risk that your psychological condition may deteriorate in custody, including having suicidal ideation. In addition, I take into account that you will suffer considerable anxiety concerning the welfare of your children and their separation from you whilst they are housed with your mother, whom you appear to intensely dislike and claim that such dislike is reciprocated by her towards you.
52 Your counsel did not submit that the plight of your children constituted exceptional circumstances, however, I accept that it will weigh heavily upon you.
53 I also take into account that your condition of diabetes is a challenging one requiring constant monitoring, and this may be more difficult in the prison environment for you. However, I was not to know that, after the conclusion of the plea hearing on 2 November 2018 when I remanded you in custody, there would be a serious and dramatic development relating to this condition, to which I shall refer shortly.
54 On your behalf, it was urged that the delay between your being charged with these offences on 24 July 2013 and the conclusion of the trial process in 2018, should be taken into account as a mitigatory factor. It would appear that the matter was first listed for trial on 13 April 2015 and was then adjourned at the request of the prosecution in order to attempt to locate your broker, Mr Jason Fischman, to give evidence at your trial. The matter was listed on 5 February 2016 and an application was then made on your behalf to adjourn the trial. The charges were relisted for trial on 29 August 2016 but, then, were further adjourned by the prosecution because Mr Fischman had not answered his subpoena. Ultimately, the matter came before his Honour Judge Lacava and a jury for trial commencing on 30 October 2017. However, on 14 November 2017, the jury was discharged after it was unable to reach a verdict. There was, then, an 11 month delay before the trial commenced before me on 3 September 2018. Pre-trial issues took place between 3 and 7 September, and, then, the trial itself ran between 10 and 21 September 2018 and on, the latter date, the jury returned verdicts of guilty on each charge.
55 Clearly, any person charged with a criminal offence has an entitlement to run a trial and put the prosecution to proof of the offence. Although it would seem that approximately six months of the delay was occasioned by your having changed solicitors, I do take into account the balance of the delay as a mitigating factor. In particular, you have had protracted anxiety because of this, including having endured one trial with a hung jury.
56 Your counsel has urged that a totally suspended sentence is appropriate in all the circumstances. The prosecution has submitted that only a sentence with some immediate custodial component is appropriate, whether it be by way of partially suspended sentence or a combination of a term of imprisonment together with a Community Correction Order.
57 In order to consider sentencing options, I requested that you be assessed for suitability for a Community Correction Order. A report authored by Community Corrections Officer, Ms Sarah Hornidge, dated 2 November 2018 was provided to the court. It is apparent from this report, as was the case with the psychological report, that you continue to deny responsibility for the offending. You told the Community Corrections Officer that you had been taken advantage of and had no idea that you were not eligible for the loans you took out, and became upset, reporting that you “want to die”.
58 Notwithstanding that the psychological report had emphasised your need for psychological treatment and that the authors stated that you appeared motivated for treatment and acknowledged a need for help in dealing with your psychological problems, and exhibited a positive attitude by way of responsibility in pursuing treatment, you told the Office of Corrections that you were not willing to seek out or accept any help in relation to mental health or other issues or participate in any grief counselling in relation to the death of your father. You did indicate a willingness to undertake unpaid community work if it is ordered, but the author expressed concerns regarding your willingness to meaningfully engage in any treatment or supervision component of a Community Correction Order. Today, through your counsel, you indicated that you are willing to engage in psychological treatment. I must say that I have reservations about the view expressed in the psychological report about you being motivated to seek psychological treatment. I have doubts about how much insight you had into your psychological makeup. Your borderline personality disorder is obviously something which has been with you long-term, and even the psychologist acknowledged that treatment is likely to be quite challenging and arduous with many reversals. On top of this, you have untreated symptoms of Post-Traumatic Stress Disorder relating from your childhood sexual abuse which require treatment.
59 Ms Swan, the maximum penalty of 10 years’ imprisonment for each of these offences indicates the seriousness of the offences. The amounts of the loans, of $960,000 and $1,280,000, obtained as the result of deception, are substantial amounts. The deception engaged in was for your benefit in purchasing the Malvern property, and enabled you to begin development on the Glen Iris property by demolishing the dwelling on it.
60 Although it is not suggested by the prosecution that you personally prepared any of the rather elaborate false documents presented in support of your application, it is plain from the jury verdict that they accepted that you were aware of the false representations made to the bank, either orally and/or by the documents.
61 In your record of interview you come across as being less than frank with police. In Question 90, police pointed out that you had received no wage for over eight years, and you answered “My loan application says I did and that was to get the loan put through.” You later denied that you had told the bank about such income, and stated that you had only read about it “now” whilst being interviewed.[6] Later in the interview, when police pointed out that, at the start of the interview you had volunteered the information about the false income details, you stated, “I didn’t provide any false income details at all, a hundred per cent, a hundred per cent I did not.”
[6]Question and answers to 401
62 You come across as evasive on many occasions throughout the record of interview, with long pauses before answering questions. Relatively early in the interview, police stated “you said you were employed with the loan application. Do you want to just expand on that.” You answered, “Not really, no.”[7] It is, of course, your legal entitlement not to answer questions. You claimed to have got experts to help you deal with it, namely a broker, but stated that you could not remember the name of the broker – the very person whom you blamed for the false representations.[8] You later came up with first names, namely Ben, and markedly hesitated before giving the name Jason, and claimed that the other one had very little to do with it, Noel.[9]
[7]Question 103 and answer
[8]Questions and answers to 227–229
[9]Questions and answers to 243–244
63 In your record of interview, you were inconsistent in your explanations. On the one hand, you seemed to be stating that you had been advised by the brokers that having equity in the property would be sufficient for you to get the loan, but on the other hand stated, “And they said, ‘This is the situation, we’ve got to prove that you’ve got an income so you can support this loan,’ da da da da da.”[10] You told police that you had never seen the PAYG certificate, which stated that you had an income of $390,000,[11] yet you had sworn on oath in the earlier trial, in which the jury failed to reach a verdict, that you had become aware of the false loan applications for the first time when you saw Tom Collie, which was on 14 June 2013, the month before you were interviewed by police.
[10]Part of answer to Question 230, page 28 of the record of interview
[11]Questions and answers to 331–341
64 When police asked whether, as a single mother on a single parent income, you thought that you would be able to get a loan if you were honest and told the bank that, you stated “I don’t [think] anyone can get a loan for that price. But in the same breath I gotta tell you that in the past where – I’m fully aware that a lot of loans are done like this.” You were later asked whether you were aware, when you applied for the loans, that you would need to provide false information in order to be able to justify a loan to a single mother on Centrelink, and you answered, “I was aware that this is what their company does” (referring to the brokers).[12]
[12]Answer to Questions 355–357
65 When asked whether you thought it was wrong to provide false information to the bank declaring that you had an income of $390,000 when you did not, you responded, “... I think that was something that I wasn’t aware of.”[13] You were later asked how you were going to maintain the payments of $10,000 a month, and said you were frantically trying to get finance, which you were doing on your own. When police asked with whom you had discussions about that, you stated “Another financial adviser.” When they pressed you on which person in the Westpac Bank you had had discussions with, you stated “Doesn’t matter. Rather keep that private.”[14]
[13]Answer to Question 367
[14]Questions and answers 507–508
66 You also claimed that you had informed Westpac of your current situation and that they were aware that you were no longer in the same situation as you were last time.[15] Plainly you did not tell Ms Shafir, when you spoke with her in August 2012, that you had had any drastic alteration to your work and income situation as represented in order to get the loan. Further, when you met with Mr Collie only one month prior to being interviewed by police, you had still represented that you were working, albeit that you stated this time that your income was $250,000. I mention this latter factor, not as one of aggravation, but as a matter relevant to an apparent lack of remorse. You continue to claim ignorance of the misrepresentation, and that you were somehow a victim of the manipulative behaviour of others.
[15]Questions and answers 510–521
67 In sentencing for these offences, general deterrence must be the predominant sentencing principle. It is true to say that these offences are often difficult to detect, and they do undermine the trust that banks can place in documents provided in support of a loan application. This results in additional checks and balances needing to be put in place, which is a cost to banks and to the community generally.[16]
[16]The Queen v Di Cioccio [2012] VSC 15
68 Although you have no prior offending and no subsequent offending, your lack of remorse and personality style, which tends to blame everyone else but yourself for your predicament, coupled with a somewhat equivocal attitude to engaging in any psychological treatment, causes me to have some concern about your rehabilitative prospects, particularly given the apparent lack of support you have in the community.
69 I must say that, at the conclusion of the plea hearing on 2 November 2018, I had determined that the only appropriate sentence in your case was a term of imprisonment of which there must be, at least, several months to be immediately served. What transpired after I remanded you in custody that day has caused me to somewhat alter my view.
70 Prior to remanding you in custody, I had been at pains to personally telephone the Senior Gaol Officer in the cells at the County Court to advise your risk of suicide as pointed out in the psychological report and, also, the serious nature of your condition of Type 1 Diabetes, which required very regular monitoring and medication. As you were being taken from the courtroom I stated to the custody officer, “You’ll need to be aware, sir, that Ms Swan has monitoring equipment that is crucial for her Type 1 Diabetes condition. I have already drawn this to the attention of the Chief Jail Officer downstairs.” In addition, on the orders sent to the Office of Corrections, I listed custody management issues. The first item listed was that you had Type 1 Diabetes. I also noted there that your medication for this was the Levemir Flex Pen injection and NovoRapid Penfill.
71 It is lamentable that, after these efforts by the Court, your mobile telephone which was crucial to you monitoring the subcutaneous implant which reads your blood sugar levels, was taken from you and replaced with only twice-daily checks of blood sugar levels. Even more concerning is the fact that you were left totally without any insulin injection until approximately 3pm on the day after you were remanded in custody. This meant that you had been left without insulin for approximately 36 hours since taking your last does prior to being remanded. You were apparently told by prison officers that your own medication, which had been taken from you, could not be located. Once it was found, your Levemir Flex Pen injection was administered at inappropriate intervals so that your blood sugar levels increased and you were not provided with necessary top-ups of insulin from your NovoRapid Penfill. The ultimate consequence was that, by late afternoon on Monday, 5 November 2018, you were taken by ambulance to St Vincent’s Hospital in a critical condition suffering from diabetic ketoacidosis.
72 A letter to the Court from Dr Genevieve Calder, endocrinology registrar at St Vincent’s Hospital, dated 8 November 2018, was tendered as Exhibit “6”. This leaves me in no doubt as to the seriousness of your condition when you were admitted to St Vincent’s Hospital. Your ketones were greater than 7.0 (whereas normal is less than 0.3). Your blood sugar was greater than 30 (whereas normal is 4 to 7), and your pH levels were also below normal. You required more than 36 hours of an insulin infusion, to clear the ketones, and aggressive rehydration. Dr Calder expresses her clear view that this situation arose from inappropriate management by prison staff of your Diabetes 1 condition. She states that she discussed the situation with prison medical staff and guards and impressed upon them that Levemir, by its very nature, must be given at 12 hour intervals to be safe and that top-ups using NovoRapid between these hours is crucial. Dr Calder said that she was told that this plan cannot be guaranteed absolutely. She pointed out the dire multiple complications from diabetic ketoacidosis, which may be irreversible or even fatal.
73 I requested an explanation from the Department of Justice and Regulation. This came by way of a covering letter from Jan Noblett, Executive Director of Justice Health, dated 12 November 2018, with an accompanying statement by Associate Professor Thomas Turnbull, dated the same date. (Exhibit “B”) I regard the explanation as inadequate. It glosses over the fact that you were not provided with any insulin until approximately 3.00pm on the day after you were remanded in custody and, notwithstanding very high blood sugar readings of 26 on that day, which had gone up to 28 the following day and were 30 by the morning of Monday, 5 November 2018, there is no comment, at all, about how you were managed prior to your emergency hospitalisation. The letter refers to your “insulin regime being modified in consultation with (you)” prior to hospitalisation. Yet, I understand you were told that the prison regime would allow only two insulin injections per day and two monitoring of blood sugar levels per day.
74 After prison staff were given instructions from St Vincent’s Hospital, Associate Professor Turnbull’s statement is, “The ability for health staff to provide insulin in the evening to Ms Swan is dependent upon access to Ms Swan which is facilitated by Corrections Victoria. It is also dependent upon Ms Swan being adherent to the management plan and administration times.” This does not inspire confidence. Moreover, there is no suggestion that you would not have been compliant with an appropriate diabetes management plan. Indeed, I am satisfied that you were trying to communicate that very fact to prison staff, without success.
75 Today I have been handed a document from a nurse at the Dame Phyllis Frost Centre, Fiona Azzopardi. (Exhibit “C”) It sets out a plan in accordance with the instructions of Dr Genevieve Calder, the endocrinologist from St Vincent’s Hospital. It clearly applies to ensure your safety today whilst attending Court. However, the extent to which it might be adhered to, given the reservations expressed in Dr Calder’s letter to the Court and the previously quoted remark from Associate Professor Turnbull’s statement, leave me with reservations about whether your Diabetes Type 1 will be necessarily appropriately managed in custody at all times.
76 It is true that you have had multiple admissions to hospital for unstable diabetes in the last couple of years whilst in the community. However you and your endocrinologist had set up a system to monitor your blood sugar levels closely so that your condition would not deteriorate. I accept that your experience in being rendered helpless to remedy your deteriorating condition as a result of not being appropriately monitored and treated in custody was frightening and life-threatening. A prison sentence should constitute punishment, but it should not be a potential death sentence. This experience, coming on top of your psychological problems, particularly those associated with Post-Traumatic Stress Disorder relating to your sexual abuse, has caused me to rethink the sentencing disposition. This does not mean that anyone with Type 1 Diabetes cannot be sentenced to a term of imprisonment. Unfortunately, at your expense, prison staff may have learned something about being more diligent in managing Type 1 Diabetes in the future. However, I consider it likely that you will suffer added anxiety and lack of confidence about the management of your condition in custody, which is understandable.
77 Whilst I still consider that a term of imprisonment is warranted on each charge, in all the circumstances I consider that close to time served plus a Community Correction Order on the first charge is an appropriate disposition and that a wholly suspended sentence on the second charge is an appropriate disposition. I should also note that in arriving at these dispositions, although exceptional circumstances do not exist, I have considered some degree of mercy is warranted for the sake of your two children, who have no father to care for them, and for whom you have been a sole parent for many years.
78 You need to understand, Ms Swan, that if you do not comply with the Community Correction Order then that, in itself, is a criminal offence which is punishable by a maximum term of imprisonment of three months. In the event that you contravene the order by failing to perform the unpaid community work, attend for mental health treatment or supervision, all of which will be conditions of the order, then you will be brought back before me for breach of that order, and it is possible that it will be cancelled and you will be ordered to undertake a further term of imprisonment. If you start being difficult and carrying on and not turning up for appointments, whether they be for supervision, community work or mental health assessment or treatment, I will not be very sympathetic if you are brought back before me, Ms Swan.
79 Are you prepared to consent to a Community Correction Order, Ms Swan?
PRISONER: Yes, your Honour.
HER HONOUR:
80 On Charge 1, you are convicted and sentenced to be imprisoned for a period of 12 days and to undertake a Community Correction Order for a period of 3 years.
81 I declare a period of 11 days pre‑sentence detention to be time reckoned as already served under the sentence imposed this day. This means that you will be released from custody tomorrow.
82 The terms of the community correction order are as follows:
(a)You must not commit, whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;
(b)You must comply with any obligations or requirements prescribed by the regulations;
(c)You must report to and receive visits from the Secretary during the period of the order;
(d)You must report to the Community Corrections Centre specified in the order within two clear working days after the order coming into force;
(e)You must notify the Secretary of any change of address or employment within two clear working days after the change;
(f)You must not leave Victoria except with the permission, either generally or in relation to a particular case, of the Secretary;
(g)You must comply with any direction given by the Secretary that is necessary for the Secretary to give to ensure that you comply with the order.
83 In addition, the following conditions apply: namely, that you be subject to supervision, that you perform a period of 300 hours’ unpaid community work during the period of three years of the order, and that you attend for assessment and treatment of mental health conditions as directed.
Ms Swan, I cannot make such an order unless you consent to it. Do you consent to it?
PRISONER: Yes, your Honour.
HER HONOUR:
84 On Charge 2, you are convicted and sentenced to be imprisoned for a period of 6 months, which sentence is to be wholly suspended for a period of 3 years.
85 Ms Swan, you must be aware that, if in the next three years, you breach that sentence by further offending, either in Victoria or outside of Victoria, then you will be brought back before me for re-sentencing. Should that occur, the high probability is that you will be sentenced to serve the term of 6 months actually inside a prison. This Court order that I am making is still a term of imprisonment. It is just that you are being given the opportunity to serve it in the community.
86 Pursuant to s464ZF(2) of the Crimes Act I order that you undergo a forensic procedure for the taking of a scraping from the mouth in accordance with Subdivision 30A of Part 3 of the Crimes Act 1958 until a sample of sufficient standard is obtained for placement on the database. I consider that this order is warranted by reason of the seriousness of the circumstances of the offending.
87 Ms Swan, you need to be aware that if you do not consent to the taking of a scraping from the mouth under the supervision of an authorised member of the police force, then police may use reasonable force to enable that forensic procedure to be conducted.
88 Mr Thomas, would you or your instructor please take this Community Correction Order and go to the dock to ensure that Ms Swan understands its conditions.
89 Ms Swan, is this your signature on this document?
PRISONER: Yes, your Honour.
HER HONOUR: Do you acknowledge that you understand the terms and conditions of this Community Correction Order?
PRISONER: Yes, your Honour.
HER HONOUR: Do you agree to obey the terms and conditions of that order which you have signed?
PRISONER: Yes, your Honour.
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