Director of Public Prosecutions v Tangaloa
[2021] VCC 376
•31 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-19-02481
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| TANIORA TANGALOA |
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JUDGE: | HIS HONOUR JUDGE WRAIGHT | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 29 March 2021 | |
DATE OF SENTENCE: | 31 March 2021 | |
CASE MAY BE CITED AS: | DPP v Tangaloa | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 376 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.
Catchwords: Plea of guilty – Recklessly deal with proceeds of crime – Offender accessed and withdrew fraudulently obtained funds in a bank account – Deportation and separation from family inevitable – Delay – Totality – Time in custody particularly difficult – Circumstances surrounding COVID-19 pandemic taken into account – Offender rehabilitated in custody.
Legislation Cited: Crimes Act1958 s 194(3); Migration Act 1958 (Cth) s 501(3A); Sentencing Act 1991 s 6AAA.
Cases Cited:DPP v Nguyen [2014] VCC 125; DPP v Buhagiar & Heathcote [1998] 4 VR 540.
Sentence: Imprisonment for a period of 12 months, wholly suspended for a period of 2 years.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr C McConaghy | Office of Public Prosecutions |
| For the Accused | Ms N Karapanagiotidis | Stary Norton & Halphen |
HIS HONOUR:
Introduction
1Taniora Tangaloa, you have pleaded guilty to one charge of recklessly dealing with the proceeds of crime, contrary to s 194(3) of the Crimes Act1958 which carries a maximum penalty of 10 years imprisonment (Charge 1).
2You have also admitted your criminal history.
Circumstances of the offending
3The prosecution opening was tendered on the plea and may be summarised as follows:
4At the time of the offending you were living with your then partner, Jessie Lee Oakley.
5On 6 November 2008 Sonya El Haji purchased a house at 7 Magnolia Avenue, Kings Park (the property) for $226,000. On 24 October 2011, Ms El Haji listed the property for sale with an asking price of $320,000. It did not sell and was withdrawn from the market a year later. The assigned estate agent received negative customer feedback about the property and was of the opinion that the property was in poor condition and the tenant had a lot of furniture and mess in every room.
6On 27 October 2012 a contract of sale for the property was executed in the name of you and Ms El Haji for $592,000. You paid a 10 per cent deposit and settlement was listed for 27 January 2013.
Establishment of ANZ Account
7On 28 December 2012 an Australia and New Zealand Banking Group (‘ANZ’) account was opened at the Bacchus Marsh branch in the name of Ernie Oakley, Ms Oakley's father. Mr Oakley had an existing account at ANZ and recalls that sometime after 2011 he was approached by you and Ms Oakley in relation to opening up a bank account in his name. Mr Oakley recalls giving you and
Ms Oakley permission to do so but does not recall why you wanted to set up the account, or how it was established. Mr Oakley never accessed the account or received any information on its use.8Ms Oakley recalls that sometime in late 2012 you told her that you were waiting for settlement on a house that you were purchasing. This surprised her as she believed that you did not have the money for a deposit. At around the same time you asked Ms Oakley to open up a bank account to be used to deposit funds. Ms Oakley was concerned about how opening an account in her name may impact on her Centrelink parenting payments and suggested that her father could open an account. Mr Oakley agreed to do so and an ANZ Access Advantage Cheque Account 01 3511 2659-72964 (‘the ANZ Account’) in the name of Ernie Oakley was established. Following its establishment Ms Oakley received an access card.
Bank of Queensland Home Loan
9Bank of Queensland ('BOQ') records show that on 15 January 2013 a BOQ Mount Waverley branch employee commenced keying into the loan application system an application for a home loan for $473,600 in relation to the property.
10On 18 February 2013 a housing loan application to the BOQ in the amount of $473,600 was made in your name via a handwritten loan form (‘the application’). The application was supported by attached documents, namely a contract of sale, bank statements and a payslip.
11In the application it was falsely represented to the BOQ that you commenced employment with S.F. Transport Pty Ltd on 1 July 2010, were employed by them on a full time basis and received a monthly after tax income of $6,651.
12Enquiries by police concerning the supporting documents attached to the application have established that they were false.
13National Australia Bank (NAB) account statements in your name for the period
8 October 2012 to 8 February 2013 contained fortnightly salary credits identified as 'INTERNET TRF'. The account balance as of 8 February 2013 was $1,371.29. Original NAB account statements were obtained by police and when compared to those submitted in support of the home loan application they showed different transactions balances and contained no salary credits. The authentic NAB account statement showed fortnightly Centrelink Newstart payments of $486.01 and an account balance of $4.02 as of 14 February 2013.14The payslip on S.F. Transport Pty Ltd letterhead for the period 25 January 2013 to 7 February 2013, with 'TANGALOA T.' as the payee, indicated a gross pay of $4,480.07. Sebastian Ferraro, the owner of S.F. Transport Pty Ltd says that the payslip was not issued by his business and that he does not know you.
15Based on the information entered into the BOQ's loan application system, the loan was electronically approved on 18 February 2013.
16On 5 March 2013 the loan was drawn in the amount of $440,829.24 and nine BOQ cheques were prepared in terms of the letter of instruction received from Joe Anthony & Associates. The BOQ cheque details are as follows:
(a) $306,827.95 paid to Bendigo BOQ account G. Karim & S. El Haji;
(b) $256 paid to Brimbank City Council;
(c) $11,999.20 paid to Sonia El Haji;
(d) $916.85 paid to Joe Anthony & Associates;
(e) $7,104 paid to Tam Nguyen;
(f) $5,000 paid to Patrick Wales;
(g) $1065.19 paid to Convert Property Acquisitions;
(h) $78,131.89 paid to Ernie Oakley; and
(i) $29,528.16 paid to Walmoody Pty Ltd.
Dealing with monies obtained from BOQ loan
17You were aware that funds from the approved BOQ loan were to be deposited into the ANZ account. When Ms Oakley first checked the ANZ account about $78,000 had been deposited. She asked you about the money and you replied words to the effect of 'just go pay your bills'. Ms Oakley then made withdrawal transactions on the account. You also had access to and regularly withdrew money from the ANZ account for your own purposes. It is these facts that relate to Charge 1, recklessly dealing with the proceeds of crime.
18A breakdown of the $78,131.89 subsequently withdrawn from the ANZ account is as follows:
(a) $11,388 withdrawn by Jessie Oakley;
(b) $25,795 in relation to the purchase of a Kia Grand station wagon;
(c) $1,200.90 in relation to purchase of air travel; and
(d) $42,150 of other cash withdrawals.
19Upon settlement of the property you rented the property to Rose Williamson, the mother of one of your ex partners, who subsequently failed to pay any rent. The loan quickly went into arrears as only two loan repayments of $2,724.56 were made on April and May 2013. Consequently the bank took possession of the property.
20In December 2013 the Bank arranged for the property to be valued by Herron Todd White, who estimated the property to be worth between $240,000 and $265,000. In May 2014 the bank sold the property and received a net amount of $242,016.86.
21On 14 June 2018 you were interviewed by police and made a 'no comment' record of interview.
Nature and gravity of the offending
22Ms Karapanagiotidis who appeared on your behalf, submitted that there are number of factors that mitigate the gravity of your offending.
23While you ultimately did access funds that had been fraudulently obtained, as was made clear by the prosecution on the plea, the evidence does not disclose that you were responsible for making the initial loan or directly associated with the provision of the false material.
24It was submitted that the transaction that ultimately led to the use of fraudulently obtain funds was but one of approximately 40 fraudulent transactions involving the BOQ during the same time period. Those transactions involved a number of irregular and dishonest activities of bank staff and others, such as conveyancers. The prosecution does not dispute that fact. Nonetheless, while there may have been others that assisted in facilitating the specific fraudulent transaction, in this instance you were well aware that the money that ultimately was placed in the ANZ account was the proceeds of crime and you chose to access that money.
25While the quantum of the proceeds of crime is limited to $78,131.89 and you are not charged with the larger fraud in relation to the home loan, in my view your offending is still serious.
Personal circumstances
26You were born in Tonga on 17 March 1975 and are 46 years of age. You and your family moved to Australia on 23 November 1976 when you were 20 months old and have been in Australia ever since on a Class BF transitional permanent visa. You come from a close family of two sisters and five brothers who also live in Australia and two other brothers who live in New Zealand and the United States respectively. Your whole family are Australian citizens, except for you and your brothers living overseas. You also have a large number of aunties, uncles, nieces and nephews who live in Australia.
27You completed primary and secondary school in Australia before entering the workforce. You have a relatively strong work history. You were employed as a labourer between 1993 and 1995, a security guard from 1994 to 2001, a pallet technician from 1997 to 2003, a labourer from 2003 to 2004 and a director of Manton Security Services from 2011 to 2013.
28You have been in custody since July 2013 in relation to offending that occurred in 2009 for which you were ultimately found guilty at trial. In January 2014 you were sentenced in this court to eight years imprisonment, with a non-parole period of five years. You were not granted parole and have served the whole of the eight-year sentence, which expired on 27 March 2021.
29On 12 January 2016 your permanent visa was mandatorily cancelled as a result of your conviction and sentence of imprisonment, pursuant to s 501(3A) of the Migration Act 1958 (Cth). You unsuccessfully sought revocation of the cancellation decision and have exhausted all avenues of appeal, including an unsuccessful appeal to the Full Court of the Federal Court in 2020.
30Your father, with whom you had regular phone contact, was diagnosed with prostate cancer in 2017 and died in 2018 while you were in custody. You were permitted to attend the burial.
31In terms of your physical health, you suffer from asthma, cardiomyopathy and take medication for these conditions. You have also suffered mild heart attacks and the vision in your right eye has deteriorated whilst in custody, requiring treatment.
32
You have 11 children to three long-term partners all of whom are under the age of 18. You have two children to your second partner, Ms Stafford, who are 14 and 16 years of age. You have two children to your most recent partner,
Ms Oakley and they are eight and 10 years of age respectively. Ms Oakley struggles with addiction and is not in a position to care for the children. It was initially hoped that you would assume full time care of the children.
33You have maintained relationships with all your children during your time in custody and enjoy regular contact with them via phone and mail. You also received visits from your children prior to visits being suspended as a result of the COVID-19 pandemic. In a reference prepared by Nicole Moller who cares for two of your children, she confirms your regular contact with the children from prison by sending cards and letters and telephoning them at least three times per week.
34A bundle of documents were tendered that reference your activities in custody including the fact that you have, since 2017, performed the role of a peer support worker which is a leadership role. You are described as punctual, polite and a diligent worker who is greatly appreciated by other participants in the programs in prison that you help facilitate. You are also employed as a drug and alcohol peer educator with Caraniche services and described as a valuable part of the team. You have served a significant sentence without incident and have taken full advantage of the rehabilitative supports that have been offered to you.
Sentencing considerations
35In terms of the procedural history of the matter, a committal hearing was heard in the Magistrates' Court on 9 December 2019 with one witness being cross-examined. The matter was listed for trial in this court on 8 February 2021. This date was ultimately vacated and after various directions hearings, a case conference was heard before me on 12 March this year. Defence made an application for a sentence indication on 29 March 2021 in relation to the charge that you have now pleaded guilty to and the plea was conducted on the same day. Whilst your plea cannot be considered as an early plea, it still has utilitarian value in that it avoids a jury trial which would require witnesses to be cross-examined and expend significant cost and court time. Your plea represents a willingness to facilitate the course of justice and can be taken into account in your favour.
36General deterrence and denunciation are important sentencing considerations in this instance. Others must be made aware that this type of offending has an impact on the community and will not be tolerated. Offences of this nature are difficult to detect and may impact the community by making it more difficult for people to obtain finance and possibly at a higher cost.[1]
[1] DPP v Nguyen [2014] VCC 125 [13] (Rozenes CJ).
37As to specific deterrence, technically you have come before the court with no formal prior convictions. As noted however you have recently completed an eight-year sentence in relation to armed robbery and serious injury charges. That said, as noted above, you have been a model prisoner and have taken leadership roles within the prisoner system. Further, this offending is of an entirely different nature to the offending that led to your prison sentence. Therefore in my view in all the circumstances specific deterrence is able to be moderated in this instance.
38For similar reasons, in my view your prospects of rehabilitation can be assessed positively. You have demonstrated your ability to rehabilitate whilst in custody and while transition into the community will present its own challenges, the evidence suggests you will stay on a positive trajectory. You have maintained close relationships with your family and your children and while it is inevitable that you will be deported, I have no doubt you will remain close to your family as best you can.
39Ms Karapanagiotidis submitted that your time in custody has been particularly difficult. Firstly, you have served your time in custody - particularly since the Federal Court decision - with the knowledge that you will likely be deported to Tonga. You have spent all your life in Australia. You have no family ties in Tonga and you will be separated from your children and wider family. This prospect has understandably weighed heavily on you while in custody. Secondly, you have had to deal with a number of physical health issues in custody which have required ongoing management and treatment. Thirdly, your father died whilst you were in custody and the grieving process has been more pronounced whilst incarcerated and separated from your family. Lastly, for more than a year you have served your time during the COVID-19 restrictions, creating a further burden on you as programs have ceased and you have been unable to receive visits from your children.
40Delay is of some relevance in this case. The offending occurred in 2013 and charges were not laid until June 2019. This considerable delay, which was not attributable to you, has meant that the matter has been hanging over your head and also in circumstances where your future in this country was less than certain.
41The delay in bringing this matter to court also raises issues in relation to totality. Undoubtedly, had this matter been brought to a conclusion in timely manner while you were serving your eight-year sentence, the court would apply principles of totality when considering any orders for cumulation. In this instance the totality principle requires the court to consider what sentence would have been imposed if you were sentenced at the same time that you were sentenced for the armed robbery matter. The principle continues to apply when an offender is already undergoing a sentence (or in this case just completed a sentence) and is about to be sentenced for an offence that was committed many years earlier. When it is possible, totality is achieved by making a sentence substantially concurrent. Where that is not possible, as is the case here, the sentence is able to be moderated accordingly.
42
Ms Karapanagiotidis submitted that because of the time in which the offence was committed, a suspended sentence is an available sentencing option.
Mr McConaghy who appeared on behalf of the Director of Public Prosecutions, submitted that an immediate term of imprisonment is appropriate, however, accepted that a suspended term of imprisonment is within range.
43In my view a term of imprisonment is warranted. However, in the circumstances, the applicable sentencing considerations are able to be met by the imposition of a wholly suspended term of imprisonment. As was noted in DPP v Buhagiar & Heathcote[2], 'a suspended sentence of imprisonment is not an unconditional release or a mere exercise in leniency. Rather it is an order made in the community's interest and generally designed to prevent re-offending.'[3]
[2] [1998] 4 VR 540.
[3] Ibid at 547.
Sentence
44Mr Tangaloa, can you please stand.
45Taniora Tangaloa, on Charge 1, recklessly dealing with the proceeds of crime, you are convicted and sentenced to 12 months imprisonment. That sentence will be wholly suspended for a period of two years.
46I am required to warn you that if you commit any offence punishable by imprisonment whether in or outside of Victoria during the period of suspension, you will be brought back to this court to be dealt with. In that circumstance, unless you are able to provide exceptional circumstances, that sentence will be restored and served.
47Pursuant to s 6AAA of the Sentencing Act 1991, if not for your plea of guilty I would have sentenced you to a period of 2 years imprisonment with a non-parole period of 14 months.
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