Director of Public Prosecutions v Tweedly

[2016] VCC 2037

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-14-00500

DIRECTOR OF PUBLIC PROSECUTIONS

v

RAYMOND JOHN TWEEDLY

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	22 December 2016
CASE MAY BE CITED AS:	DPP v Tweedly
MEDIUM NEUTRAL CITATION:	[2016] VCC 2037

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	Mr S. Kenna
For the Offender	Ms M. Harris

HER HONOUR: 

1Raymond John Tweedly, you have pleaded guilty to the following offences:  (1) obtaining property by deception, Charges 1, 3, 6 and 7; (2) having custody of a false document, Charges 2 and 8; and (3) obtaining financial advantage by deception, Charges 4, 5, 9 and 10.

2The maximum penalty for each of these offences is ten years, however, Charges 4, 9 and 10 qualify as continuing criminal enterprise offences and have an increased maximum applicable of 20 years.

3Your offending in respect of Charges 1 to 8 relates to two individuals who you met through your involvement in martial arts.  Abdul Haq was a director of a company importing martial arts wear for resale.  You had known Emanuel Zara since 1982 but became re-acquainted with him through Haq in 2004.

4On 7 December 2004 you approached Mr Haq about investing in land in Tasmania.  You told Mr Haq you worked for a Melbourne company called Burbank, who had sent you there to buy land and you provided him with your business card.  You had in fact at that time ceased employment at that company. 

5You informed Mr Haq:  (1) that the purchase would be in Mr Haq's name given your employment; (2) that the cost of the land was $60,000, but would after a year or two be worth $250,000; (3) that Mr Haq should contribute $20,000 and you would provide the remainder; and (4), that on resale the proceeds would be divided equally, subject to Mr Haq providing you another $10,000.  Mr Haq agreed and gave you $20,000.  This sum is part of Charge 1.

6Soon Mr Haq asked you for the relevant documentation.  On or about 21 December 2004 you provided Mr Haq with a photocopy of a contract of sale dated 7 November 2004.  This document was false in a number of respects and is part of Exhibit C on the plea.  That is part of Charge 2.

7You also persuaded Mr Zara to invest in another property and indicated it would be sold at a profit after three months.  Mr Zara agreed to be involved and provided you $20,000.  You informed him it would be about three months before he got any money back.  That sum is part of Charge 3.

8In early May 2005 you again persuaded Mr Zara to be involved in a similar deal and he provided you $10,000.  You continued to get Mr Zara involved in other property deals and he gave you the following amounts on the following dates:  on 9 June 2005, $12,000; on 2 June 2005, $10,000; and on 23 June 2005, $30,000.  Each of these amounts and those other ones previously referred to make up part of Charge 3.

9In August 2005 you again approached both Mr Haq and Mr Zara re investment in other land in Tasmania.  You took them both to a property in Dodges Ferry, Tasmania, and told them that the land could be subdivided into 12 blocks, with each of you being allocated four.  You also took them to a house where you said the owner of the land lived and told them she would sell the land for $335,000.  You all went inside the house but there was no discussion regarding the purchase.  Soon thereafter Mr Haq agreed to purchase the property.  He got a loan and gave you $115,000.  That is the amount the subject of Charge 4.

10Additionally, you provided false documents indicating that Mr Haq was liable for fees and taxes relating to this land in the sum of $2,750.25, and another letter purportedly indicating approval from the relevant government authority for the subdivision of land.  Both letters and their contents were false documents and are part of Charge 2.  Mr Haq gave you the $2,750.25 referred to above, which is part of Charge 1.

11In December 2005 you told Mr Haq you needed $15,000 for fees relating to the solicitor connected to the land.  He told you he could only provide $5,000 and paid that amount into a bank account in your wife's name.  That is Charge 5.

12You continued to seek money from Mr Haq for these fees and ultimately, in about February 2006, he provided you another $10,000 with a cheque payable to your wife.  That sum is part of Charge 7.

13On two occasions, in June and July 2006, you told Mr Haq that he owed $5,000 towards advertising and for rates regarding the Tasmanian property, which he paid on both occasions by cheque payable to your wife.  Again that is part of Charge 7, the total amount of Charge 7 being $20,000.

14In September 2006, Mr Haq told you he wanted to sell the Tasmanian property and you assured him it would be put on the market.  In February 2007 you tried to get $30,000 from Mr Haq, telling him your father needed a heart operation in the US.  He did not provide those funds.  You later told him your father had died.  You also told him the Tasmanian property had been sold the previous month, that is in June 2007, and that settlement would be in two months.  You subsequently informed Mr Haq that your son had died.

15In respect of the 12 block subdivision, you told Mr Zara you had incurred advertising costs of $2,000, which he paid you.  That sum is part of Charge 3.  You also provided Mr Zara with documentation regarding the purchase of this land which was false in a number of respects and is part of Exhibit C on the plea.

16On or about 18 November 2005, you approached Mr Zara and recommended he purchase a property in Echuca Moama.  He provided you $30,500.  That is part of Charge 3, the total amount of Charge 3 being $114,500.

17In February 2006 you again persuaded Mr Zara to invest in another property in Echuca and he provided you $15,000.  That is part of Charge 6.

18Mr Zara continued to seek details about the progress of the various land deals but had difficulty contacting you.  You went to his house on 3 March 2006 and asked him for $2,250 for rates on the Tasmanian property, which he provided to you.  That is part of Charge 6.

19Zara continued to request you to provide the paperwork in respect of his property investments.  Ultimately you provided him with six photocopied one-page contracts of sale, saying that these were the contracts for the properties in which Zara had invested.  Each of these documents was false and are part of Exhibit C on the plea. 

20Also in September 2006 you contacted Mr Zara and asked him for some money for a heart operation that your father needed in the USA.  He gave you $10,000, that being part of Charge 6.  When you got this money you told him you needed more for the trip and he later gave you another $20,000.  You told him you would pay him back within a month.  That extra $20,000 is part of Charge 6.  The total amount in respect of Charge 6 is $47,250, although there was reimbursement of $20,000.

21Later in the year you told Mr Zara the operation had been successful and gave him back $20,000.  A week later you told Mr Zara your father had died.  Mr Zara contacted you seeking further repayments and you told him your stepson had committed suicide.  Neither of these statements were true.

22In August 2007 Mr Haq received a phone call from a man purporting to be your solicitor, asking for his name and address.  Mr Haq asked the man to identify himself, without success.  He then rang you and was told that himself and Zara would be receiving their cheques within two or three weeks.  Approximately four weeks later, having received no cheques, Mr Haq called you, and after this time, all other calls that he made to you were left unanswered.

23You were interviewed by police in relation to these matters on 29 October 2009.  While conceding you had travelled to Tasmania with Mr Haq and Mr Zara to investigate a potential land purchase, you otherwise denied all allegations of wrongdoing. 

24Your next offence relates to Sylvena Sylvie Maria Pecora.  In late 2007 you approached Ms Pecora, who was living in Anglesea.  You had been to school with her some 35 years before.  You told her you were involved in a building project of 19 townhouses on the Great Ocean Road at Anglesea.  You soon thereafter attended her home with plans and asked her to invest in the project.  She wanted time to consider whether she would invest her $200,000. 

25You returned on 9 January 2008.  You asked her to lend you $200,000 and promised her a return of $100,000 on the investment, or alternatively, one of the apartments when built.  You told her the offer was only valid on that day and that you had to receive the money.  Pecora agreed to invest $200,000 and gave you the money.  The representation by you of her investing in a genuine project was false.  That is the sum the subject of Charge 9.  The $200,000 was withdrawn by you between 10 January and 12 February 2008 and spent on personal matters, including $49,670 on two Harley Davidson motorbikes. 

26In the course of a record of interview with police on 5 December 2012, you admitted you did not own any land at Anglesea and claimed Ms Pecora had said to you that you could use the money for whatever purpose you chose.

27Your last offence relates to Timothy Cook.  During 2008 Cook was introduced to you by a mutual friend at Anglesea.  You spoke to him about two property developments in that area.  Mr Cook gave you $50,000 for the two projects and this payment is not the subject of any charge.

28In 2010 you told Mr Cook about another project in Fairhaven.  You met with Cook and a building surveyor, though nothing formal regarding design, plans or permits was ever finalised.  You told Mr Cook that $75,000 was required to be paid to the proposed builder and he paid that amount into your account.  Mr Cook became aware that no work was being done on any of the projects and confronted you.  He received excuses from you about money being frozen in accounts by others.  The $75,000 is the subject of Charge 10.  None of the $75,000 went to any builder and your bank records reveal the money was withdrawn by cash amounts and ATM transactions and was exhausted by 3 September 2010.

29In a record of interview conducted on 22 May 2013, you admitted to receiving the $75,000 deposit on 16 July 2010 and claimed the money had been paid to you as a consultant's fee by Cook.

30The total amount in respect of all of the charges is $579,500.25.  That takes into account the $20,000 repaid to Mr Zara.

31I was provided with Victim Impact Statements from each of Mr Haq, Mr Zara, Mr Cook and Ms Pecora.  Some of these were read in court and I take that material into account.  Each have had their assets and/or finances significantly depleted.  It is apparent your offending has significantly affected their financial plans for the future, previously thinking that they would be secure.  They feel anger and mistrust and their situation has placed strain on family relationships.  Some have suffered depression and anxiety and lack of sleep, worrying about their financial future and security.

32I received a report from Dr Aaron Cunningham, Forensic Psychologist, dated 6 December 2016, and I take that material into account. 

33You are currently aged 58.  You grew up in Williamstown but left home when you were about 21 years old.  You married soon thereafter and have five children.  You have lived most of your life in Werribee.  You have had no contact with your children since being in custody and your wife, Carol, is renting a property in Melton, as you have lost all the money that you had.  You maintain contact with your wife and hope to re-establish your relationship upon your release from custody.  Your family feel betrayed by your actions and you have no contact with any of your siblings or your elderly parents.  I understand your father is currently aged 90 and has been diagnosed with prostate cancer with an uncertain prognosis.

34You completed a carpentry apprenticeship when you left school and you have worked for various building companies, including Simonds Homes, Metricon and Burbank.  Your roles have varied including working as a site supervisor and building manager.  You have struggled to find permanent employment since 2005, when you initially became involved in this offending.  I accept that you initially hoped your property development plans would come to fruition, however, it would have been apparent very quickly that success would not eventuate.  You took more and more money and got deeper in trouble, abusing the trust of friends and acquaintances with schemes, some of which were fictitious and others with limited prospects.

35You have an interest in martial arts and operated your own club for approximately 25 years, though you stopped being involved because of embarrassment regarding these criminal matters.

36In Mr McKinnon's opinion you present with adjustment disorder with depressed mood.  Such developed following these charges and also with your incapacity to find stable employment. 

37Your plans to develop a property in Anglesea were initially legitimate, however, you had great difficulty securing sufficient funds, leading you to borrow money from friends and engaging in this deceptive conduct.  It is reported that you feel a sense of failure, having lost everything, including the respect of family members.

38You have had some of these matters having over your head for a period of time.  Additionally, I was informed that some of this offending could have been dealt with at the same time as your prior matters or previous court appearances.  It is necessary to set out the history of your prior matters and some relevant dates regarding the current matters before me.

39Between 2004 and 2008 the offending in respect of Mr Haq, Mr Zara and Ms Pecora, or Charges 1 to 9, occurred.  You were interviewed in relation to Mr Haq and Mr Zara's matters on 29 October 2009.  The offending in relation to Mr Cook occurred in July 2010. 

40In November 2011 at the Sunshine Magistrates' Court you were convicted and sentenced to three months' imprisonment and a 12 month community-based order.  I was informed that these charges related to six counts of obtaining property by deception in respect of the Anglesea project.  You lodged an appeal in relation to this sentence which was not listed in the County Court until October 2014, on which date the appeal was struck out.

41In August 2012 you were convicted and sentenced in relation to two charges of obtain property by deception and were sentenced to six months' imprisonment, wholly suspended. 

42You were interviewed in respect of the Pecora matter on 5 December 2012 and were charged in February 2013.  You were interviewed in respect of the Cook matter on 22 May 2013 and charged soon thereafter.  You were not charged in relation to the Haq and Zara matters until August 2013.  Your committal for Charge 10, or the Cook matter, proceeded in March 2014, and in relation to Charges 1 to 8, or the Haq and Zara matters, in June 2014.

43You have matters outstanding to which you failed to appear at Geelong Magistrates' Court in September 2014.  In March 2016 you were arrested and remanded in custody in respect of the matters currently before me.  On 5 April 2016 your appeal from November 2011 was struck out and the sentence was confirmed.

44No adequate explanation was provided by the prosecution for the delay in prosecuting Charges 1 to 8, particularly the delay between your interview in October 2009 and the laying of charges in August 2013.  Although some of the delay post committal was because you failed to attend court, I accept that much of the delay in having these matters finalised was not as a consequence of your own actions.  I take delay as a significant matter into account.

45I also take into account your plea of guilty, although it could not be said that it was offered at the earliest opportunity.  There is a significant utilitarian benefit in the plea, saving the community the costs and inconvenience of a trial.  Additionally, some aspects of the case relating to cash payments made to you by Mr Haq and Mr Zara would have been very difficult to prove.  I understand Ms Pecora was not required to give evidence at the committal.  Some of the money in relation to Mr Zara and Ms Pecora has been repaid, that is $20,000 each.  Such action is indicative of your remorse.  Your plea is also indicative of your acceptance of responsibility for your actions and shows a willingness to facilitate the course of justice.

46This is your first time in custody, the experience has been confronting and difficult.  I was provided with material indicating that you are in a trusted position within the unit, using your carpentry and other handyman skills to undertake maintenance work.  Material from relevant Correctional officers reveals you are trusted and hard-working and able to undertake various tasks within the prison - see Exhibit 2.  I understand you hope to resume work in carpentry when you are released.

47There are some features that auger well for your rehabilitation.  You continue to have the support of your wife and hope to re-establish relationships with other family members.  You have maintained your carpentry skills and hope to find employment on your release.  I accept that you have reasonable prospects for rehabilitation.

48There are some aggravating features of your offending:

i.it involved a significant breach of trust of friends and acquaintances. 

ii.Your offending involved four different individual victims and continued for a period of years;

iii.Your use of false documents gave a sense of legitimacy to your activities. 

iv.You used some of the funds to support your own lifestyle;

v.You continued to offend, even though you were aware police were investigating your conduct in relation to Mr Haq and Mr Zara

vi.The total amount of your fraudulent activities was approximately $575,000. 

vii.You are to be sentenced as a continuing criminal enterprise offender in respect of three of your charges.

49Your counsel submitted that a number of sentencing options were available, namely, a term of imprisonment with either a non-parole period or partially suspended or with a Community Correction Order.

50These offences are serious, and the amounts involved were significant in terms of funds or savings belonging to individuals.  Your offending continued over a very lengthy period of time and constitutes a breach of trust placed in you by your friends and acquaintances.  Issues of general deterrence are important.  Those who engage in deceptive conduct for their own financial gain and whose activities are discovered need to be aware they will face punishment. 

51I also take into account specific deterrence, though I accept that you have reasonable rehabilitation prospects.  It is necessary to strike a balance between the matters raised in mitigation and the objective seriousness of this offending, together with all relevant sentencing principles.

52If you could stand up please, Mr Tweedly.

53In respect of Charge 1, you are convicted and sentenced to a period of two months' imprisonment.  In respect of Charge 2, you are convicted and sentenced to a period of six months' imprisonment.  In respect of Charge 3, you are convicted and sentenced to a period of 12 months' imprisonment.  In respect of Charge 4, you are convicted and sentenced to a period of 18 months' imprisonment.  In respect of Charge 5, you are convicted and sentenced to a period of one month imprisonment.

54In respect of Charge 6, you are convicted and sentenced to a period of four months' imprisonment.  In respect of Charge 7, you are convicted and sentenced to a period of two months' imprisonment.  In respect of Charge 8, you are convicted and sentenced to a period of six months' imprisonment.  In respect of Charge 9, you are convicted and sentenced to a period of two years' imprisonment, and in respect of Charge 10, you are convicted and sentenced to a period of 12 months' imprisonment.

55The base sentence in relation to this matter is Charge 9 which is two years, and I order that six months of the sentences imposed in respect of Charges 3 and 10, and 12 months of the sentence imposed in respect of Charge 4 be cumulative on the sentence imposed on Charge 9.

56Mr Tweedly, what that means is that there is a total effective sentence of four years' imprisonment and you will be required to serve a non-parole period of two years before you will be considered for parole.

57The court records should reflect that Charges 4, 9 and 10 are continuing criminal enterprise offences.

58Pursuant to s.6AAA, if you had not pleaded guilty to this matter I would have imposed a sentence of five and a half years with a non-parole period of three and a half years. 

59The pre-sentence detention this time is calculated for your time in custody less the three months that you had imposed in respect of the appeal in 2011, so what is the current PSD please?

60MR KENNA:  184 days, Your Honour.

61HER HONOUR:  184 days PSD is declared.  Are there any other ancillary orders, Mr Kenna?

62MR KENNA:  No, Your Honour, those were attended to previously.

63HER HONOUR:  The other day, all right, thank you. 

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