Director of Public Prosecutions v Webb
[2019] VCC 1659
•12 October 2018
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
Case No. CR 18-01235
| DIRECTOR OF PUBLIC PROSECUTIONS |
| V |
| MICHAEL WEBB |
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JUDGE: | HIS HONOUR JUDGE LYON | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | ||
DATE OF SENTENCE: | 12 October 2018 | |
CASE MAY BE CITED AS: | DPP v Webb | |
MEDIUM NEUTRAL CITATION: | [2019] VCC 1659 | |
REASONS FOR SENTENCE
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Catchwords:
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APPEARANCES: | Counsel | Solicitors |
| For the Director | Mr P. Triandos | |
| For the Accused | Mr G. Hughan |
HIS HONOUR:
1 Michael Webb, you have pleaded guilty to the following offences which carry the following maximum penalties:
· one charge of theft which carries a maximum penalty of 10 years' imprisonment;
· one charge of obtaining property by deception which carries a maximum penalty of 10 years' imprisonment;
· three counts of obtaining financial advantage by deception, each of which carry a maximum penalty of 10 years' imprisonment.
2 The maximum penalties in your case are affected by the fact that with your plea of guilty, each of Charges 1, 3 and 4 constitute continuing criminal enterprise offences. As such, the maximum penalty for each of those offences increases to 20 years' imprisonment.
3 You have no prior convictions. You have one subsequent matter which resulted in a period of imprisonment together with a suspended jail sentence. The operational period of the suspended sentence is still extant. I will place the offending for which you received that sentence in context later in these remarks.
4 The Crown tendered a summary of prosecution opening on plea as Exhibit A. A brief summary of your offending is as follows.
5 In 2009/2010, you held a licence as a financial services representative. You worked as a broker under the business name Map Money and also MAP Home Loans. Each of the victims from whom you stole money or defrauded were, in a general sense clients or professionally associated with your business.
6 Charge 1 is a charge of theft from Gaetano and Rose Indomenico on 6 March 2009 in the sum of $99,330.66. You obtained a line of credit for the couple and then withdrew some of that money without their consent. When your fraudulent actions were discovered, you made a number of payments back into the account with money that you had taken from other clients.
7 The second charge was obtaining property by deception from Marilyn Evans on 9 July 2009. Ms Evans was a former client of yours. You persuaded Ms Evans to provide a loan of $30,000; purportedly to finance another client for the settlement of a property. This loan remains unpaid.
8 Charge 3 is a charge of obtaining financial advantage by deception. You had known the complainant Carolyn Cheep for 25 years. She had used you as a financial broker on several occasions since 2002. Ms Cheep approached you to obtain a loan for the construction of a house on a block of land. You obtained a loan of $300,000 for her. In addition, you deceived Ms Cheep into transferring $184,000 of her personal money to you. This is the subject of Charge 3. She did so in the belief that you would use those funds to make progress payments. Instead, it was paid into your personal account where you used the money to prop up other frauds and to also spend money on your own needs.
9 Charge 4 is a charge of dishonestly obtaining a financial advantage in the sum of $115,000 from Chris and Samantha Mitris on 16 August 2010. You brokered a loan and offset account for the couple. You then caused $115,000 to be deposited into your personal account. From this amount, you used the funds to pay into various loans accounts including that of another investor and to pay personal bills and debts. The money was not used to benefit the interests of the couple. You used other funds to make some payments back into the Mitris account.
10
Charge 5 is a charge of obtaining financial advantage by deception in the sum of $40,000 in respect to Graham Langford on 2 August 2010. In 2009, you obtained a loan for Mr Langford in the sum of approximately $150,000. You offered to invest the funds on his behalf. In August 2010 you told Mr Langford that you had a client in urgent need of $40,000 to complete a renovation.
Mr Langford trusted you and agreed to loan this client through you, $40,000. You transferred the money to your own account. Although the money was transferred temporarily to a client for a short-term loan, that client repaid the money back to you in full but you did not ever take the step of repaying
Mr Langford.
11 In total, you stole or defrauded your clients of $468,000. It is agreed between the parties that the actual loss to victims was $326,128 comprising the total of the amounts in relation to Charges to 3 and 5 and the sum of $72,128 in relation to Charge 4.
12 I received victim impact statements from Carolyn Cheep, Marilyn Evans and Graham Langford. Ms Evans and Mr Langford read their statements to the court. It is important to point out that you knew Ms Evans' partner to have been very ill with mental health issues and that she and her partner were trying to build their wealth to fund his pension in old age. It says something of the gravely callous nature of your offending that you were prepared to exploit people whom you knew to be so vulnerable. Moreover, one could not help but be moved by the plight that they now face; at least partly because of the loss of the money entrusted to you.
13 In fact, the victim impact statements together serve as a reminder that your greedy, selfish actions have had a real human cost on those from whom you stole or defrauded. You deliberately chose individuals with whom you were friendly and who trusted you. The loss incurred is not simply a figure to be written down by a large, anonymous financial institution. Rather, you have unalterably affected the financial and emotional well-being of these people. Your crimes in this instance lasted from 6 March 2009–16 August 2010. They were of long duration; you chose multiple victims and they were executed with guile, skill and sophistication. There is no one else implicated. This was all your own work. Your moral culpability is very high. These are very serious examples of dishonesty crimes. The sentences I impose must reflect the principle of deterrence, denunciation and just punishment.
14 Moreover, the sentences for the continuing criminal enterprise offences must reflect the significantly higher maximum penalties imposed by the Parliament for those three offences.
15 I was concerned to find out why it was that these matters are only being finalised in 2018, yet occurred in 2009–2010.
16 I was informed that your offending continued into 2011. It seems that some difficulty was caused to your clients who were trying to contact you as you moved to Queensland in 2012.
17 The 2011 matters were investigated by a different police informant. Ms Evans complained to the police in 2015/16. The informant in this matter made a number of enquiries. It appears that he investigated these matters with real alacrity. In any event it is not complained on behalf of the defence that you should get any particular benefit for the delay in the prosecution of this matter.
18 Rather, Mr Hughan on your behalf pointed out that you pleaded not guilty to the 2011 matters. You were convicted of two dishonesty offences with a total value of approximately $100,000 and you were acquitted of one charge. His Honour Judge Meredith of this court imposed a sentence of 20 months' imprisonment with fifteen months suspended. You served that five month term of imprisonment in 2017.
19 I turn now to your personal circumstances.
20 You are 60 years of age and were in March 1958. Mr Hughan stated that you were not a good historian due to your myriad of health issues. I shall say something of them shortly.
21 After finishing school, you commenced work at the State Bank of Victoria and worked your way up to the position of branch manager. You stayed with the bank until 1994.
22 In the mid-1990s you commenced work as a finance broker and obtained a Diploma of Financial Planning in about 1998. You did this as you worked full-time. You started MAP Financial Services Proprietary Limited in about 2000. You were first married in 1980 when you were about 22 years old. You have two daughters Sharon and Katrina; both of whom were present in court to support you on your plea.
23 Your business and financial circumstances were badly impacted by the global financial crisis after 2008. Mr Hughan stated also that you were financially overextended. Moreover, it appears that your daughter Katrina had not been making mortgage payments on your former home in Sunbury. As a consequence your former home in Sunbury and an office were sold at mortgagee sales when you could not meet the repayments.
24 These offences were committed in the aftermath of that background. Around the same time, a second marriage failed and you were treated for depression. In 1999 you suffered a stroke and you were diagnosed with cardiomyopathy in 2009.
25 You have not committed any further offences since 2011.
26 In 2012 you moved with your current partner Karen Hudson to Queensland when she was diagnosed with breast cancer. You had another failed business venture in Queensland and in 2015 you were declared bankrupt but you could not provide any particular details of the bankruptcy. You have had surgery for prostate problems and you are currently medicated for depression, heart problems and a knee problem.
27 I was advised by submissions in writing from Mr Hughan that you now live apart from Ms Hudson. You have no assets to speak of. Whereas you had previously rented a property together, until you were remanded, you were living in a caravan in the backyard of a friend’s place.
28 Significantly, your mental health has deteriorated markedly since you were imprisoned in 2017. You told the psychologists Dr Cunningham and Cameron Aggs that when you were remanded at the end of your trial in 2017, you were raped by another prisoner. The health professionals worry that you have been, and remain, suicidal. Mr Aggs has now seen you on 62 occasions and considers that you meet the criteria for major depressive disorder and post-traumatic stress disorder. Dr Cunningham considers that you continue to present as consistent with major depressive disorder and that you are a very fragile individual.
29
I have a number of character references; from your daughter Sharon and
son-in-law Trevor, from Paul Stanley and from your current partner Karen Hudson. They certainly attest to a different side to your character, and to the remorse you feel that your offending behaviour. It is clear from those references that you still have some genuine family and community support on which you may draw after your release from prison.
30 I sense that your focus now is on dealing with your health issues rather than the greed and lifestyle issues which absorbed you eight or nine years ago.
31 Mr Hughan submitted that you are no longer financially literate. He described you as “a wreck”. You now survive on a disability pension
32 I note on the question of remorse, that you have not made any restitution. It appears from your circumstances since 2011 that you have not been in a position to make any restitution. I am prepared to find that there is some genuine remorse although I do not consider it necessarily long-standing nor do I consider it all embracing. I note that you declined to be interviewed in respect to a number of the transactions being investigated. This of course made the investigation and prosecution of these matters all the more time-consuming; if not difficult.
33 I consider your prospects for rehabilitation are very good. You have not offended since 2011, and it is probably impossible to think that you would ever re-enter the industry which allowed your frauds to be committed. You have support from your family, which is a positive in moving forward when the time comes to reintegrate back into the community.
34 Mr Hughan submitted that your sentence should be mitigated by:
· your plea of guilty which has real utilitarian benefit and which was attended by some remorse;
· your prior good character;
· the burden you find imprisonment to be; and that there is likely to be a deterioration in your mental health and that you find it more burdensome than many others in the prison population; and
· there has been no offending for seven years and in that time you have led a quiet and blameless life within your family.
35 Significantly, Mr Hughan submitted that Principles 5 and 6 from the Court of Appeal case of R v Verdins should mitigate the sentence I impose upon you; that is to say
The existence of the condition at the date of sentencing (or its foreseeable recurrence) may mean that a given sentence will weigh more heavily on the offender than it would on a person in normal health.
Where there is a serious risk of imprisonment having a significant adverse effect on the offender’s mental health, this will be a factor tending to mitigate punishment.
36 Ultimately, Mr Hughan submitted that I should impose a suspended or partially suspended sentence.
37 Mr Triandos on behalf of the Crown submitted that your offending occurred over a 17 month period and involved multiple breaches of trust. Your offending involved a large sum of money and each offence required some planning and execution. Moreover your offending had a considerable impact on your victims. As such, Mr Triandos submitted that the only appropriate sentence was an immediate term of imprisonment. In my view, your offending must be met by a term of immediate imprisonment.
38 The greed and audacity of reaching into other people’s bank accounts and simply stealing or appropriating their money to fund your own lifestyle, and then to steal more to cover up your crime by making payments here and there can only be met by the punishment of imprisonment.
39 In this case however I take into account the time that has passed and that you have not offended since 2011. I also take into account the severe mental health issues from which you suffer, together with a myriad of physical health issues which all add up to you now being a fragile and different person to the one who committed these offences. These factors will indeed make your time in prison more burdensome; as will the fear instilled in you by your previous experience in custody. The sentences that I impose have been moderated to take into account those factors.
40 I will ask you to stand at this stage please Mr Webb.
41 On Charges 1, 3 and 4 you committed continuing criminal enterprise offences. I order that your status as a continuing criminal enterprise offender and the fact that I sentence you on Charges 1, 3 and 4 as having committed continuing criminal enterprise offences be entered onto the records of the court.
42 On Charge 1, a continuing criminal enterprise offence, you are convicted and sentenced to a term of 18 months' imprisonment.
43 On Charge 2, you are convicted and sentenced to a term of four months' imprisonment.
44 On Charge 3, a continuing criminal enterprise offence, you are convicted and sentenced to a term of 32 months' imprisonment.
45 On Charge 4, a continuing criminal enterprise offence, you are convicted and sentenced to a term of 22 month's imprisonment.
46 On Charge 5, you are convicted and sentenced to a term of six months' imprisonment.
47 The base sentence is Charge 3. I order that five months of Charge 1, one month of Charge 2, six months of Charge 4, two months of Charge 5 be cumulated on that and all other sentences. That makes a total effective sentence of three years and ten months. I order that you serve a non-parole period of 27 months, that is two years and three months, before you are eligible for release on parole.
48 I declare the period of nine days pre-sentence detention reckoned as already served.
49 The 6AAA declaration is that but for the pleas of guilty, I would have imposed a sentence overall of six and a half years with four and a half years to serve.
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