Director of Public Prosecutions v Toma
[2022] VCC 2211
•9 December 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 21-01094
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MARTIN TOMA |
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JUDGE: | HER HONOUR JUDGE GWYNN |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 11 November 2022 |
DATE OF SENTENCE: | 9 December 2022 |
CASE MAY BE CITED AS: | DPP v Toma |
MEDIUM NEUTRAL CITATION: | [2022] VCC 2211 |
REASONS FOR SENTENCE
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Subject: Criminal law
Catchwords: Obtaining property by deception
Legislation Cited: Sentencing Act 1991 (Vic)
Cases Cited: Worboyes v The Queen [2021] VSCA 169
Sentence: Four months imprisonment and a two-year community corrections order
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr J. O'Toole | Office of Public Prosecutions |
For the Accused | Mr R. Melasecca | Melasecca Kelly & Zayler |
HER HONOUR:
1Martin Toma, you have pleaded guilty on indictment to a single charge of obtaining property by deception. This is a rolled-up charge covering 20 acts occurring between 9 August 2016 and 11 December 2017. A rolled-up charge captures more than one instance of offending and may only be included on an indictment by the agreement of the accused and only for the purposes of a guilty plea.
2In sentencing you for your crimes, I must have regard to the maximum penalty for the offence you have committed. The maximum penalty for obtaining property by deception is 10 years imprisonment.
3This maximum penalty reflects the seriousness with which Parliament regards this offence.
4The circumstances of your offending are set out in a document entitled 'Summary of Prosecution Opening for Plea' dated 15 October 2022. This is an agreed document and represents your acceptance of the elements of the offences to which you have pleaded guilty as well as the factual basis on which I am to sentence.
The offending
5I will not repeat the entire summary as it is a matter of record, but in brief terms, the victim in this matter is the Australia and New Zealand Banking Group.
6Between 9 August 2016 and 11 December 2017, on some 20 occasions, you deceptively obtained money from ANZ totalling $137,000.00.
7To obtain the money, you would submit an online application for a credit card using an alias. In support of your application, you would provide a fraudulent Victorian Marine Licence, which displayed the name of an alias but contained a photograph of yourself. You used some nine aliases in relation to your offending.
8Once the application was approved and you had received the credit card via post, you would attend an ANZ branch in possession of the false credit card and the licence and withdraw cash from the teller.
9On 12 March 2020, you were arrested and transported to Broadmeadows Police Station where you participated in a record of interview and denied the offending. You said you previously held bank accounts with the Commonwealth Bank and that the male depicted in the marine licence did not look like you. You stated that the male portrayed in the CCTV footage could not be you as he did not have a tattoo on his hand.
10To date, I understand none of the monies obtained from the bank have been repaid.
Offence gravity
11In terms of offence gravity, it is obviously serious offending, totalling in value a not insignificant amount of $137,000.
12The offending could be described as somewhat protracted as the between dates are that of 19 August 2016 to 11 December 2017. I note, however, there was a gap of offending between those dates and that the offending is persistently committed over a three-month period within the 17 months described.
13Whilst you physically attended to these deceptions yourself, it was sufficiently planned such that you were able to use various false identities with your photograph on falsified documentation, which was of sufficient quality to be accepted by a bank on each occasion.
14It was clearly deliberate and carefully orchestrated in the sense that you utilised various false identities, attended at no bank branch on more than one occasion and sought to make the relevant transaction within a period shortly after the application for funds were made and approved.
15Your moral culpability is assessed as high.
16However, it is to your credit that you did desist before being identified by a third party or investigator.
Plea of guilty
17The Sentencing Act obliges me to take into account the stage at which you entered your plea.
18You did run a contested committal.
19On 6 September 2022, you made application for a sentence indication. Until that point, you had intended proceeding to trial, with identification of you as the offender being the primary issue.
20Sentence indication is a process which permits a judicial officer to give a defendant a general indication of the sentence that would be likely to be imposed if the defendant pleaded guilty at that stage of the proceedings. The sentence indication process can resolve some concerns about the likely sentence that may be causing a defendant to defer entering a guilty plea or otherwise electing to continue to proceed to trial.
21At the time of your sentence indication, you sought an indication of a sentence of a specified type pursuant to s207(1)(a) of the Criminal Procedure Act 2009. You sought the imposition of a community corrections order, should you determine to plead guilty.
22Filed on your behalf in support of your application were:
a)extensive and well-prepared written submissions;
b)a report authored by Luke Armstrong, psychologist, dated 31 August 2022;
c)a letter from your brother, Isaac Toma, confirming he had taken out a loan to make restitution to the ANZ Banking Group;
d)home loan statement of Isaac Toma confirming the closing balance in that account (and the ability to therefore make restitution on your behalf);
e)a letter from your father, Reverend Korkis Toma, undated;
f)Facebook excerpt from Panton Hills Football Club recommending Nuts for Donuts Eltham and acknowledging sponsorship of the club;
g)a letter authored by Natalia Mitrevski, general manager of Nuts for Donuts, dated 25 August 2022 confirming you are an authorised licensee;
h)a certificate of appreciation from the Salvation Army Red Shield Appeal dated 25 May 2022; and
i)Community Correction Orders: Guidelines for Sentencing Courts.
23I had received written submissions from both parties supplemented by oral argument. Your criminal history was also provided.
24In consideration of those materials, including your lengthy period of reformation, the sentence indication given by me was that should you determine to plead guilty to the charges on the indictment, then I would impose a brief term of imprisonment in combination with a community corrections order.
25You accepted that sentence indication.
26You were arraigned and formally pleaded guilty to the charges on the current indictment on 11 November 2022. That charge was a direct reflection of the charges for which the sentence indication was given other than the charges had been rolled up into a single charge.
27In your plea, there is clear value in saving the community the expense of contested proceedings.
28Your decision to plead guilty in the context of the COVID-19 pandemic has additional utilitarian value as it does provide certainty and finality to all parties in circumstances where the court's operations have been significantly disrupted and many trial dates remain as yet unfixed.
29In the still recent decision of Worboyes v The Queen [2021] VSCA 169, at paragraph 39 the Court of Appeal said that:
a plea of guilty entered during the currency of the COVID-19 pandemic is worthy of greater weight in mitigation than a similar plea entered at a time when the community and the courts are not afflicted by the pandemic's effects. A plea of guilty during the pandemic ordinarily should attract a more pronounced amelioration of sentence than at another time …
30I do accept that your plea is also some indication of remorse.
31These factors will all be taken into account in your favour.
Personal circumstances
32
I turn now to your personal circumstances, which have been outlined in defence submissions and a report authored by consultant psychologist
Luke Armstrong, dated 31 August 2022.
33You are currently 44 years of age and were born in Iraq with three siblings.
34You were born with a ventricular septal defect, which is a hole in your heart, and you did not walk until you were three years of age.
35In 1985, you moved to Australia at six years of age to obtain medical treatment for your condition.
36Your parents are originally from Syria. Your father was brought up in an orphanage in Iraq. He became a trained priest when he was 21 years old and remains a priest today in Australia. Your family were well known in the community due to your father's high profile with the church. You told Mr Armstrong they were rarely home and 'totally consumed by the impression of others'.
37Growing up, your parents were very strict. You were not close with your mother, and your father would often engage in corporal punishment.
38Bullying was another salient feature of your childhood. Although you deny struggling academically at school, you did struggle socially. At primary school, you were teased, as you could not speak English. You and your siblings were physically and verbally assaulted because of your ethnic background.
39You were also subjected to intense bullying by your brother, Isaac, who would engage in sadistic violence in the absence of parental oversight. He would make demands of you, and any refusals were met with severe violence such as punching, gauging your face, and on one occasion, stomping on your head. You endured beatings from both your brother and father on a regular basis, and the violence continued throughout your adolescence.
40These beatings contributed to anger and depression, and, eventually, at the age of 13, you began a pattern of running away from home. Initially, you would only run away for one to two days at a time; however, this escalated to weeks at a time when you were aged between 14 to 16 years, prompting your parents to file missing persons reports with the police on several occasions.
41You began participating in antisocial behaviour such as fire lighting and throwing rocks at cars and were suspended several times at school for fighting. You were eventually expelled at the age of 18 years after being accused of theft and for throwing chairs and upending tables. This resulted in your first appearance in the Magistrates' Court for criminal damage.
42Following your expulsion, you gained work in a factory, however left after two weeks after throwing a bottle at your boss.
43You have no solid work history until after 2019.
44In terms of drug use, you used cannabis briefly when you were 14 years of age, however desisted as it made you feel paranoid. You began binge drinking when you were 16 years old and occasionally used amphetamine during this time. Later in life, in 2004, you started using cocaine after being released from a period of incarceration. After your release, you commenced training as an amateur boxer, which led to socialising with 'like-minded drug users'. You admit to binging on alcohol and illicit substances during this period, which became intertwined with gambling.
45You had begun gambling when you were 17 years of age. You started by playing the pokies, which quickly escalated into a severe gambling problem. You would lie to cover up losses and to obtain funds and loans from family and friends. Your drug use and gambling also played a role in your offending behaviour.
46In terms of relationships, you had a significant relationship when you were 18 years old, which led to an unforeseen pregnancy, prompting you to move out of home. That relationship came to an end after two years, which you attribute to your gambling. You had one daughter together, Tanisha, who is now 26 years old and has been primarily raised by her mother.
47You report that you had one other significant relationship 11 years ago. You were married; however, the marriage broke down after 11 months in the context of your substance abuse. This breakdown, in combination with the end of your boxing career in 2014 due to a shoulder injury, saw an escalation in gambling and alcohol abuse, and you also started using drugs daily.
48At the time of the offending before me, you were using cocaine daily and gambling regularly.
49Your gambling and substance use saw you associating with serious criminals. This led to a point where you eventually made the decision to desist from gambling, drugs and excessive alcohol use altogether. You reached out to your father, who advised you to disassociate from your criminal and
drug-using peers. You acted upon his advice, and this led to a turning point in your life in 2019. You advise that you have not engaged in gambling or drug use since this time and only drink minimally. It is conceded that you made these positive life changes without police intervention, prior to being charged and that you ceased offending at your own volition.50Tendered on your behalf was a report dated 31 August 2022 authored by Luke Armstrong, Consultant Psychologist. I have had regard to its contents.
51In his opinion, your gambling behaviour became a coping mechanism to escape your experience of extreme distress as a result of your upbringing. He sees a link between the need to disassociate through gambling from the distress of chronic violence in the aftermath as an obvious connection.
52Mr Armstrong opines that gambling is an addiction which requires greater amounts of money to achieve the desired mental state. It is within this context that he finds that you began committing fraud-related offences and a pattern of 'chasing your losses'. You were committing such offences to fund your gambling habit.
53Mr Armstrong diagnoses a gambling disorder and, at least between the years 2014 to 2019, a heavy stimulant and alcohol use disorder.
54Your counsel does not call into your aid the principles of R vVerdins & Ors (2007) 16 VR 269.
55Mr Armstrong also refers to a number of personal circumstances since 2019. These include a repair of your relationship with both your father and brother, your abstinence from drugs and gambling, a severing of ties with previous associates and your establishment of two businesses in which you are
self-employed.56Such that he is qualified to do so, Mr Armstrong opines that your rehabilitation since 2019 has been genuine. He points to your intelligence and insights as to your own flaws and addictive potential.
Criminal history
57Your prior criminal history does form part of your personal circumstances.
58Of relevance to the sentencing exercise before me are several appearances for similar dishonesty offences.
59As aforementioned, you initially appeared before the Broadmeadows Magistrates' Court on 19 January 1996 at 18 years of age for a charge of criminal damage and unlawful assault, for which you were convicted and fined $1,500.
60
On 9 November 1999, at 21 years of age, you once again appeared before the Broadmeadows Magistrates' Court for 266 charges of obtain property by deception. This charge related to credit card fraud, and you were sentenced to six months imprisonment, which was ordered to be served by way of a
six-month intensive corrections order.
61You breached this order with new offending relating to obtaining loans by deception and were resentenced by the Broadmeadows Magistrates' Court on 21 March 2000. The intensive corrections order imposed 9 November 1999 was cancelled, and you were imprisoned to serve the unexpired portion of 149 days.
62On 25 May 2000, you came before the Melbourne County Court on 31 charges of obtaining property by deception, four charges of obtaining financial advantage by deception, 12 charges of attempting to obtain a financial advantage by deception, attempting to commit an indictable offence and stating a false name. You were sentenced to four years imprisonment with a non-parole period of two years.
63You again came before the Melbourne County Court on 1 August 2007 for charges relating to perjury and obtaining financial advantage by deception. You were sentenced to 15 months imprisonment, wholly suspended for a period of 15 months. You were also ordered to pay $971 in compensation.
64This was appealed by the Office of Public Prosecutions. The Supreme Court upheld the appeal and on 6 December 2007, you were convicted and sentenced to a term of imprisonment for a period of 26 months, which was wholly suspended for a period of three years. The Supreme Court also confirmed the compensation order.
65The decision of the Court of Appeal was provided to me by the Crown. In brief compass, you attended Broadmeadows police station on four separate occasions and swore numerous statutory declarations in order to avoid parking fines, speeding infringements and road toll notices. You nominated another person as the driver of the vehicle who had committed the various infringements. That other person was entirely innocent. This offending could also be described as systematic and calculated.
66The Court of Appeal recognised your efforts at that time of rehabilitation and stated:
It is hard in that context to understand that (he was) involved in this further offending and these offences represent a significant error of judgment on (his) part because in all other respects (he) had taken positive steps to turn (his) life around.
67This quote appears equally apt to your present circumstance. There have been gaps between your offending yet resort to offending of a similar nature. I see the offending before me as objectively more grave than the circumstances of the offending dealt with in 2007.
68Whilst not to be punished for your criminal history a second time, it is relevant to the assessment that needs to be undertaken by me as to the weight that should attach to the principles of specific deterrence, denunciation and protection of the community, all of which do carry importance in your sentencing exercise.
69It informs your level of moral culpability, which, as I have already indicated, I assessed to be high. Given the gap in your offending in more recent times, I am prepared to lessen the weight that would otherwise attach to specific deterrence and protection of the community. Your criminal history has obvious relevance to the assessment as to your prospects for rehabilitation.
Delay
70Your offending occurred between 9 August 2016 and 11 December 2017.
71You were not charged until 12 March 2020, and of course, your matter has not been finalised until today, 9 December 2022. I observe such delay is not uncommon, given such offences are often difficult to detect and then to investigate.
72On your behalf, it is argued that this delay is relevant in two ways. The first is the burden of these matters hanging over your head - at least from the time that you were charged until your sentencing - a period in excess of two and a half years. The second references the time between the cessation of your offending - a cessation, as I have already remarked, of your own volition - in December 2017 and now - as being a period in which to assess your prospects for rehabilitation. Given it has been some five years without further offending, it is submitted that your prospects of rehabilitation are high.
73I accept each of these submissions as to the relevance of delay in terms of the burden on you between charge and today and the period offered in which to assess your future prospects, to which I now turn.
Prospects of rehabilitation
74You now run your own businesses, which, on the information before me, includes importing and exporting white goods, beds, bikes and tanning products with your brother. You also run a retail doughnut business and have been recognised for your donation of left-over doughnuts to the Salvation Army and for your contribution to the community through your sponsorship of a local football team. Materials were tendered supporting this.
75Whilst these materials link you to commencing as a licensee for a doughnut store in Eltham in January 2022, that store recently closed, and you took over as a licensee for a store in Sunbury in November of this year.
76You have reconciled with your brother and are now on positive terms. He is your business partner, and you describe him as one of your closest supports. I note he has written an undated letter advising the court that he has obtained a loan of $150,000 to assist you to repay debts created through your offending. He says that he would not be prepared to make this payment on your behalf if he was not a hundred per cent confident that you have changed your life.
77You now also enjoy a close relationship with your father and attend Bible studies with him every Tuesday. Your father has provided a reference and speaks of being approached by you in March 2019, asking for his help to lead a better life. He describes you as open about your drug and alcohol use and gambling abuse. Your father comments on your demonstrated positive improvement in your behaviour and your generous heart. He remains supportive of you.
78You are currently settled living with your parents and act as a carer to your mother, who has numerous medical issues. You care for her during the night and take her to all medical appointments.
79Your daughter, Tanisha, is currently struggling with drug addiction and you recently saved her life after discovering her having overdosed.
80You have considerable obligations to your family, which provides you with an additional reason not to reoffend, as do the benefits you associate with the reconciliation of these now supportive relationships.
81At this stage, you do appear to have positive and well-established prospects for rehabilitation, and I have already indicated the role that that will play and the weight that will then attach to the principles of specific deterrence and protection of the community.
Sentencing submissions
82In terms of sentencing submissions, the Crown submit that all relevant sentencing considerations could properly be reflected in the imposition of a community corrections order in combination with a term of imprisonment. This was their position on sentence indication and plea.
83As referred to earlier, at your sentence indication hearing, you sought a community-based order. You accepted a sentence indication that, should you determine to plead guilty, I would consider imposing a brief period of imprisonment in combination with a lengthy community corrections order.
84At your plea hearing on 11 November 2022, you relied on materials filed in support of the sentence indication. These materials were extensive and played a significant role in the sentence indication given on 6 September 2022 and the consideration of leniency, given your relevant criminal history and the objective gravity of your offending. No further material was provided nor additional evidence called.
85You maintained your original submission that all relevant sentencing considerations can be reflected in the imposition of a community corrections order. In effect, it was argued that you had abandoned a life of crime, that your rehabilitation should be preserved, and that community protection can be served in supporting your continued progress.
86Given my indication, and that each party made allowance for the imposition of a corrections order, I have had you assessed as to your suitability for a community corrections order, and your further plea was listed for today's date, 9 December 2022.
87An assessment outcome report dated 15 November 2022 finds that you are suitable for a community corrections order.
88In advance of the hearing date, your counsel has provided additional submissions seeking the imposition of a community corrections order without the imposition of any period of imprisonment. In addition to previous submissions made, your counsel refers to your assessed suitability for a corrections order and recent communications with the Office of Public Prosecution indicating a desire to repay monies that you dishonestly received from the ANZ Banking Group. I note your intention to repay has always been part of the submissions before me.
Sentencing principles
89The basic purposes for which a court may impose sentence are just punishment, general and specific deterrence, rehabilitation, denunciation and protection of the community. In sentencing you, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, your personal circumstances and those of any victim.
90I am also required to balance the interest of the community in denouncing criminal conduct with the interest of the community in seeking to ensure, as far as possible, that offenders are rehabilitated and are reintegrated into society.
91I have taken into account the sentencing purposes referred to in s5 of the Sentencing Act where relevant to your case. I have taken into account the current sentencing practices for the offences to which you have pleaded guilty.
92On Charge 1, a rolled-up charge of obtaining property by deception, you are convicted and sentenced to four months imprisonment.
93This sentence of imprisonment is in combination with a community corrections order of two years duration. During this time, you are to submit to:
a)supervision by Community Correctional Services;
b)to perform 120 hours of community work;
c)to undergo treatment and rehabilitation for drug addiction;
d)to undergo programs as directed to reduce offending;
e)75 hours of treatment can be offset against the community work.
94In addition to the conditions that I have imposed, there are standard conditions. The first and foremost of those is that you must not commit any other offences during the two-year period which can be punished by imprisonment. You must report within two working days of your release to the nearest Corrections office. You are also required to advise your supervising Corrections office of any change of address of where you are living or working, and you must do so within two clear working days. It is a term of all community corrections orders that you must submit to visits as directed and you must obey all of the instructions and directions of a Corrections officer. You are not able to leave the State of Victoria without the prior permission of your supervising Corrections office.
95The order presents you with a chance to continue to change your life in the positive way that you have undertaken if you choose to take up the opportunity and the supports that should be made available. As indicated, the order can be breached if you reoffend by an offence punishable by imprisonment or if you do not comply with it in terms of its conditions. If you do, you will have to reappear before me for contravention proceedings, and I may have to look to resentencing you on the original charge as well as for breaching the order.
96I can only place you on the corrections order if you agree to be placed on that order, and if you wish to speak to Mr Melasecca about that, I will give you the opportunity. So if you wish to approach, Mr Melasecca, I will have a copy printed out, and you can take it and see what Mr Toma says.
97MR MELASECCA: Thank you.
98HER HONOUR: Before I do that, s6AAA of the Sentencing Act requires me to state the sentence I would have imposed, had you not pleaded guilty. If not for your plea of guilty, you would have received a total effective sentence of two years and four months with a minimum of 20 months before being eligible for parole.
99Do we have that order available? Yes. Anything arising or anything I missed?
100MR O'TOOLE: No, Your Honour. As the court pleases.
101MR MELASECCA: No, Your Honour, thank you.
102(Community-based order signed and acknowledged.)
103HER HONOUR: Is there an error?
104MR MELASECCA: No, no, no problems, Your Honour. It is signed, thank you.
105HER HONOUR: Thank you. Mr Melasecca, you are to be commended for your continued and valiant efforts on behalf of Mr Toma. There is nothing more that you could have done and said on his behalf.
106MR MELASECCA: I am grateful for that indication, Your Honour, thank you.
107HER HONOUR: Mr O'Toole, I am grateful also for your assistance.
108MR O'TOOLE: If the court pleases.
109HER HONOUR: I will stand down now until 10.30, thank you. Yes?
110MR MELASECCA: Would Your Honour allow Mr Toma to remain for a minute before he just - - -
111HER HONOUR: I do not have a problem. Mr Melasecca wishes to speak with his client very briefly in the dock. Can that be done?
112PRISON OFFICER: Yes, it can be, Your Honour.
113HER HONOUR: All right.
114MR MELASECCA: Thank you.
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