Director of Public Prosecutions v Tambakis

[2017] VCC 697

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 16-00601

DIRECTOR OF PUBLIC PROSECUTIONS

v

EVAN TAMBAKIS

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	12 May 2017
CASE MAY BE CITED AS:	DPP v Tambakis
MEDIUM NEUTRAL CITATION:	[2017] VCC 697

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

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms D. Manova
For the Offender	Ms C. Woodward

1HER HONOUR:  You can remain seated, Mr Tambakis, until I ask you to stand, thank you.

2Evan Tambakis, you have pleaded guilty before me to two charges of obtaining financial advantage by deception.  The facts underlying your offending are as follows:  On 9 June 2009 you began working for Tomax Logistics (Tomax), an international freight forwarder and customs broker in Clayton.  That company had partnerships with many shipping and freight service providers such as Qantas, DHL, global, et cetera, which provide invoice charges for Tomax for services provided, Tomax paying them directly via electronic funds transfer.

3You were employed as an operations manager with a salary of $95,000 with superannuation and a company car and phone.  Your role was to organise deliveries and process invoices generated by others.  You were required to obtain the invoice from the service provider, allocate the appropriate job number and charge codes to the invoice and present it to the accounts payment department for payment by them.  You did not have the authority to make payments on the invoices but you did liaise directly on a daily basis with the accounts department to ensure urgent payment of invoices when necessary.

4In early 2014 you requested your colleague, John Wynn to install PDF editing software on your computer, saying you needed it for your café business.  This software enabled you to generate fake invoices from genuine clients which you then submitted to the accounts department for payment.  You were able to direct Tomax funds to accounts of your choosing by verbally notifying the accounts department that an existing customer had changed their payment details for particular invoices.  On occasion you would also provide to your account staff details written or printed on the invoice.  Those staff later told police they did not question you and simply did as you told them because of your seniority in the organisation.  You also requested that another colleague arrange payments to various beneficiaries and create new customer accounts for existing customers.  Again, given the level of your seniority in the company, these requests were met without question.

5You also created fake credit notes for existing customers which were entered into the company's system to enable you to obtain the funds.  The accounts department would liaise with you to ensure any credit notes were properly allocated and you would then direct the accounts staff to apply payment to the fake credit notes to anyone of nine accounts controlled by you.

6To avoid detection, you sometimes deposited funds in the Tomax account to make it look like a real client had made a real payment, which was required to be credited against their account.  That would enable the credit notes to be offset with payments made by the company into one of those nine accounts controlled by you.

7You also set up fake email addresses purportedly from employees working for existing customers attached to the fake invoice or request for payment, which enabled those requests to appear more legitimate and for you to avoid suspicion.  In this way, between 4 March and 23 December 2014 you obtained $402,558.29 comprising 63 separate transactions which underlie Charge 1, a rolled up charge, dishonestly obtaining financial advantage.

8Charge 2 covers a period between 7 January and 24 July 2015 when via these methods and in 43 separate transactions you obtained the sum of $238,826.40, this all being a rolled up charge.

9The total amount of money transferred from Tomax into the nine accounts nominated by you was $641,384.69 comprising 107 transactions.

10In July 2015 the Tomax CEO, Chris Charmers was checking through a chain of invoices when he discovered an anomaly, which he back tracked, and contacted the entity said to have issued the invoice.  That entity confirmed it had not issued that invoice and so Charmers commenced an investigation including contacting service providers and banks into which Tomax funds had been paid on questionable invoices.  He asked you about the situation and you told him that you had discovered some unpaid invoices, tried to cover the situation up by engaging in a convoluting series of transactions which involved you paying your own money into the Tomax accounts.  This was a similar explanation to one eventually you provided to police.  Eventually you admitted to Charmers the account which the moneys were paid into on that particular invoice was your account and not that of a customer.  And again, eventually, after finding evidence of about $600,000 being handled by you in an unauthorised manner, Mr Charmers reported the matter to police.

11Bank warrants eventually revealed the account holder details and statements of each of the nine accounts in which Tomax funds were transferred by you.  Forensic account analysis of the transactions conducted by you found some of the funds had been disbursed via spending at the TAB and other gaming, payments to third parties, cash withdrawals, mortgage repayments, payments on a home loan, payments to Café Licious, your restaurant business and a deposit on a house in which you and your family were then living.

12Inquiries with Tabcorp revealed that between 1 January 2014 and 16 November 2015 you gambled $1,287,810, placing an average 162 bets per day during the period in Charge 1 and 164 bets per day during the period in Charge 2.

13You were arrested on 20 January 2016 and a search uncovered seven fake tax invoices relating to Tomax suppliers which all contained banking details of accounts nominated by you for payment.

14In your record of interview you told police you had taken over as second in charge of Tomax in 2010 and then discovered a number of unallocated payments in the Tomax system and decided to fix the problem yourself as opposed to telling Mr Charmers.  You have said that between 2010 and 2014 you were shuffling funds around the business to try to cover for shortfalls in unallocated payments, saying you had been paying Tomax Supplies with cash from your own bank accounts to try and cover up what you were doing.  You said you ran out of money in 2014 which is when the unauthorised transfers from Tomax began.  You admitted to transferring the funds into nine different bank accounts, saying you knew that what you were doing was wrong but were just trying to cover up the shuffling of funds that had been going on.

15You also said you had been taking cash from Café Licious, the business which you owned with your wife, to pay supplies in cash over the counter at various locations.  But no specific supplier or location was nominated by you.  Nor could you provide any evidence of the cash payments that you purportedly made of your own accord from your own funds to any of the Tomax suppliers.

16You admitted to falsifying the tax invoices from Tomax suppliers by using a PDF editor on your computer to change the banking details of the supplier to accounts nominated by you, admitting again that what you did was wrong but stating you could not stop once you started, and that the problem had snowballed and got out of control.

17You have made some attempt to return funds to Tomax.  Documentation showing that $34,719.43 was transferred back into Tomax bank accounts by you over six transactions, that you directed part payment of the amount misappropriated, also being made by you, totalling $25,243.19 together with a forfeiture by you of your employee entitlements which amounted to $14,123.09 resulting in an overall repayment of $75,084.71.

18The property at 12 Van Haaster Court, Rowville, which you purchased with a deposit from funds diverted from Tomax, has been sold, following a restraining order by this court in 2016 over the property.

19The maximum penalty for obtaining financial advantage by deception is ten years' imprisonment.  The matter was resolved at committal mention which proceeded by way of a straight hand‑up brief to a plea of guilty to all 107 charges which are represented by the two rolled up charges on the indictment.

20I now turn to your personal circumstances.  You are 52 years of age.  You were born in Australia to parents who had emigrated from Greece, and have two older brothers still living.  Your family ran a take‑away food business in Burwood and you apparently had a stable and happy childhood.  You completed Year 12 in 1982 then worked for a large retailer, Venture Stores, for five years.  You then worked as a manager for K Mart for four years until 1990.  In that period you met your wife, to whom you are still married, and resigned from K Mart because of a policy there forbidding romantic relationships between staff members.  You then worked for an international logistics customs clearance firm eventually owned by your brother for 14 years.  Along the way you brought a share of a 7‑Eleven in Heathmont, which your wife ran, and which you then sold, and also bought a milk bar in East Burwood which you and you your wife managed until 2001.

21In 2003 you purchased a sports goods franchise which for a time was extremely successful, and you had three stores in Glen Waverley, Keysborough and Fountain Gate.  The original franchise involved an arrangement where no other sports stores were allowed to be open in the shopping centres where your stores were located but at the end of 2003, the franchisor sold its network and that important condition became void.  A large competitor, Rebel Sports, came in and your earnings dropped from $22,000 a week to $8,000 a week and eventually you declared bankruptcy and sold your franchises back to the company for a dollar.

22In the meantime, you and your wife had been able to build a large house in Glen Waverley which had five bedrooms and a swimming pool but you lost that home during this financial down turn.  You then began working with your brother on a casual basis.

23You and your wife married in 1994 and she worked, as I said, in the 7‑Eleven store and the milk bar.  She had a daughter from a previous marriage, she was your step daughter, and you and she have had two further daughters together.  Following your bankruptcy you and your family rented houses in Glen Waverley, Ferntree Gully and Rowville.  You eventually purchased the house in Rowville in 2014, as I have said, using moneys fraudulently obtained from Tomax as a deposit.

24Your wife runs a cafeteria in a large factory in Scoresby and you now work there with her.  You again live with your family in rented premises.  Your step daughter is aged 27 and lives independently.  Your eldest daughter is 21 and works with her mother.  She has had psychiatric and psychological difficulties.  Your third daughter, aged 15, is still at high school.

25You have only one prior criminal matter in your criminal history but it is extremely relevant to the sentencing exercise before me.  Between 2006 and 2008 you were employed by DB Shenker Logistics as the ocean transport manager.  On 1 July 2010 the Broadmeadows Magistrates' Court placed you on a 9 month wholly suspended sentence on charges of theft and obtaining property by deception.  I was given a summary of those charges which revealed that between September 1 and October 1, 2016, you spoke to a customer of DB Shenker Logistics, giving instructions that they pay their account by writing out a cheque to a bank account controlled by you.  After banking that cheque in that account you asked the accounts department at DB Shenker to produce a document stating the customer had settled the account, which you then faxed to that customer and accessed the money.  You repeated that exercise with that customer on one further occasion.  You then falsified an invoice in the name of another DB Shenker customer with the instruction that payment of it be made to another bank account you had access to.  You then made a second false invoice in the name of another customer, obtaining a cheque from the accounts department of DB Shenker which you placed in a bank account you had access to and repeated that exercise in relation to that customer a few weeks over.  Overall, you took $54,278.94 from DB Shenker.

26The explanation you gave to police on that occasion bore, in my view, a remarkable similarity to the explanation you gave to police in relation to the offending before this court.  You told police that your job at DB Shenker was to eliminate storage costs and you tried to do this yourself by paying your own moneys to particular parties described by your counsel as "dodgy" to get containers off the dock, then seeking to cover up what you had done by fraudulently obtaining cheques for another employer.  You told police that you had undertaken these actions to "attempt to undo by original error".

27The similarity between the two explanations you gave is that you made outlays from your own moneys in relation to both employers allegedly to make up for shortfalls you discovered in their businesses and this then got out of hand.

28Your counsel told me that after you began employment with Tomax Logistics in 2010, 2011, you were moved to an area where you had more responsibility, such that you were unequipped to deal with the larger duties you were then required to undertake.

29Originally you gave instructions to your counsel that you had repaid the entirety of the moneys taken from DB Shenker but it subsequently transpired that $27,139.40 was in fact the entirety of your repayments.

30Despite the extra number of daily bets placed by you during the offending encompassed by charges 1 and 2 on the indictment, it was the opinion of psychologist, Ian Joblin ‑ whose report is dated 7 November 2016 and 24 March 2017, tendered on the plea ‑ that you did not have a gambling addiction.  The total amount of moneys that went through your TAB account well exceeded the amounts of money taken by you from Tomax, and it appears that you had some success in this area.  Mr Joblin said that it was problematic to make a diagnosis of compulsive gambling because you did not gamble until your last dollar was spent, did not borrow specifically for gambling, sell property or attend pawn shops and he stated, "From my close review of the matter with Mr Tambakis, having discussed the issue on numerous occasions both in the office and over the telephone, it does not seem that he was addicted to gambling or driven by an overwhelming, uncontrollable impulse". 

31Mr Joblin gave evidence on the plea and was cross‑examined closely on this point.  In the end, given the dictates of Rossi that a gambling addiction is not a mitigatory factor to be taken into account in sentencing for offending of this kind, the issue seems to have limited relevance.  It does impact upon prospects for rehabilitation, however, and despite the opinion of Mr Joblin, a most experienced forensic psychologist, I find it difficult to accept that the frequency and magnitude of your betting was not problematic.  As I have said, the figures attached seem to indicate you had some success in this area so that recourse to borrowings or sale of personal items was not required.

32You purported to give instructions that you had attended upon the DayHab addiction treatment centre for a three day gambling addiction program between 29 and 31 March 2017 but a search of the records of that institution revealed no such attendance by you and those instructions were withdrawn by your counsel.

33Mr Joblin said that you had a good intellect and good insight which enabled you to "place the offending into an appropriate perspective".  You did tell Mr Joblin that you used some of the money to gamble and indicated that you needed funds to maintain the viability of the café, then run by your wife, which has now been sold, as well, it would seem, from the forensic accounting investigation into your offending, the need to make mortgage repayments.

34It appeared to me Mr Joblin did agree with the proposition that you had suffered a massive financial loss and reversal in 2005 from which you have never emotionally recovered and which you have not ever properly accepted and this, in my view, provides a more cogent explanation for your offending against both employers, as you have done.  By this I mean that you have been unable to accept the loss of a very successful business, your descent into bankruptcy, the sale of your house, the fact that your family was reduced to living in rented premises, and so behaved in this fraudulent fashion to enable you to live at least in some way more commensurate with the lifestyle you had enjoyed more than your current circumstances allowed.  I am also of the view that you do have a persistent it gambling problem.

35At the end of the day, however, it is quite clear that despite the opportunity given to you by the Magistrates' Court in 2010 you have gone on to behave in fraudulent fashion in order to obtain large amounts of money from your employer.  The offending before this court is, of course, the second time that you have offended in this way and in my view, represents a marked escalation of this offending behaviour.  I find the explanations, as I have said, given by you in relation to both sets of offending to be remarkably similar and hence implausible.  I accept the prosecution submission that your failed attempts to convince this court that you repaid all the moneys owed to DB Shenker and that you had undertaken a gambling treatment course, mean that I should exercise caution in accepting Mr Joblin's opinion into your insight, intelligence, contrition and remorse relied, as it is, upon your own representations to him.

36I am not persuaded that your remorse extends beyond that accompanying your detection and prosecution for this criminal offending and the effects that this will have upon you and your family.  I do, of course, accept that you have entered a plea of guilty at an early stage which saved the community the time and expense of a trial and you are to be given a benefit for this.

37Further, I received a report from your eldest daughter's psychologist, Dr Steven Jones, who verified that she is suffering anxiety and depression and that you have been a primary support and care giver in relation to that treatment.  Dr Jones said he had grave concerns for her ongoing health and state of mind were you to undergo a custodial sentence and I take this into account in sentencing you in that I accept that concern for your daughter's well‑being whilst in custody will make a term of imprisonment more difficult for you.

38I also received a report from your general practitioner to the effect that you have been referred to a specialist for "Urinary frequency, poor urinary flow and nocturnia for five months" which may need medical or surgical treatment.

39In the end, however, this was protracted, deliberate and quite sophisticated fraud carried out in a similar manner to your previous offending.  In my view, your prospect for rehabilitation must be viewed as guarded at best.  In my view, general deterrence and specific deterrence, that is a disposition which will discourage you from offending in the future, and will protect the community, are very live issues in this sentencing exercise.  It is my view that only a term of imprisonment comprises an appropriate response to this offending.  I therefore sentence you as follows.  Could you stand up please, sir.

40On Charge 1, you are sentenced to two years' imprisonment.  On Charge 2 you are sentenced to two years' imprisonment.  I order that one year of the sentence imposed on Charge 1 be served cumulative to the sentence imposed on Charge 2, giving a total effective sentence of three years.  I order that you serve 18 months of this sentence before becoming eligible for parole.

41Pursuant to s.6AAA I declare that had you pleaded not guilty, I would have sentenced you to a term of imprisonment of three years and nine months and ordered that you serve a minimum term of two years and three months.  Have a seat sir.

42Thank you.  Is there anything further I need to attend to? 

43MS MANOVA:  Your Honour, there was an application under 464ZF made in the course of the plea.  I understood from Mr Tambakis' counsel that that was by consent.  I don't know whether Your Honour is minded to make the order.

44HER HONOUR:  I am not really.  I really don't see the relevance of such an application to the offending, this offending or the last offending.  The problem with Mr Tambakis is, as I have said, an inability to accept his current financial situation compared to his old situation.

45MS MANOVA:  I think Your Honour indicated that on the previous occasion but there had been no specific ruling about it.

46HER HONOUR:  I am not inclined to grant that on this occasion.  Thank you.  Is that everything? 

47MS MANOVA:  That's all, Your Honour. 

48HER HONOUR:  Mr Tambakis can be taken down.  There's no pre‑sentence detention, is there? 

49MS MANOVA:  There's no pre‑sentence detention, Your Honour. 

50HER HONOUR:  Thank you very much.  Your counsel will see you downstairs. 

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