Director of Public Prosecutions v Whittingham

[2019] VCC 1409

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01161

DIRECTOR OF PUBLIC PROSECUTIONS

v

MARK WILLIAM WHITTINGHAM

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	29 August 2019
DATE OF SENTENCE:	29 August 2019
CASE MAY BE CITED AS:	DPP v Whittingham
MEDIUM NEUTRAL CITATION:	[2019] VCC 1409

REASONS FOR SENTENCE

---

Subject:  Obtaining a financial advantage by deception
Sentence:  12 months' imprisonment with non-parole period of six months.

---

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Cookson	Office of Public Prosecutions
For the Accused	Ms D. Price	Theo Magazis & Associates

HIS HONOUR:

1Mark William Whittingham, you have pleaded guilty to two charges of obtaining a financial advantage by deception, for which the maximum penalty in respect of each charge is imprisonment for 10 years.

2The offending in Charge 1 is a rolled-up charge of offending between the 14th day of September 2015 and the 27th of January 2016.  In that charge the victim was the National Australia Bank and the amount obtained by you as a result of your deceptions, a financial advantage obtained, was $33,000.

3Charge 2 is a charge of offending on the 29th day of December 2015 and the victim in that charge is the ANZ Bank.  The amount of the financial advantage obtained by you as a result of that charge was $30,150.

4In each charge the offending that you have pleaded guilty to occurred whilst you were released on bail for other charges. The other charges have been dealt with by another judge of this court who sentenced you on 7 March 2019. Those sentencing remarks of His Honour Judge Trapnell [2019] VCC 313 detailed your offending in the charges which were the subject of your bail at the time of the commission of these offences. In His Honour's sentencing remarks he deals with other offending committed by you also whilst on bail and around the time of this offending under the heading, preceding paragraph 87, 'The Westpac Matter (Indictment G10711001.1 - Charges 4, 5, 6 and 7).'

5His Honour in dealing with you on 7 March 2019 for a number of offences imposed an overall total effective sentence of five years' imprisonment and fixed a non-parole period of three years and four months. His Honour made a declaration for the purposes of s.6AAA of the Sentencing Act 1991 which I shall hereafter refer to as 'the Act', that had it not been for your pleas of guilty he would have imposed a total effective sentence of seven years' imprisonment with a non-parole period of five years.

6It is necessary to refer to His Honour's sentence and his sentencing remarks because you fall to be sentenced for this offending whilst you are undergoing a term of imprisonment.  I was told, and accept, that you became eligible for parole under the sentence imposed by His Honour Judge Trapnell a little over a week ago on 19 August of this year.  It is also important to have regard to the sentence imposed by His Honour Judge Trapnell because the offences that I must sentence you in relation to occurred at or around the time, as I say, as the Westpac matters for which you have already been sentenced, and I must have regard and must apply in sentencing you what is known in sentencing the principle of totality.

7His Honour in sentencing you declared at that time pre-sentence detention of 1053 days, and the result that you have now been in custody for a little over three years and four months.  You were remanded, as I follow the chronology in the prosecution summary on or about 10 March of 2016 and have remained in custody since that time.

8The offending for which I must deal with you is summarised in a prosecution opening in writing dated 26 August 2019.  That document was tendered by the learned prosecutor Mr Cookson and read to the court by him.  Your counsel, Ms Price, agreed that the prosecution summary was accurate and forms a proper basis upon which I can proceed to pass sentencing upon you.  In those circumstances it is not necessary that I therefore repeat that which is contained in the prosecution opening except in a very abbreviated way.

9In the lead up to the offending you took a number of steps legitimately to change your name from Mark William Whittingham to Mark William Logie.  Logie being the surname of your wife.  You then obtained by various means identification consistent with the name Mark William Logie.  In Charge 1 you on five occasions applied for credit facilities in the nature of various credit cards to the National Australia Bank in the name of Mark William Logie but the information or answers provided by you to questions asked in the application were false.  Acting on the information by you on five occasions the National Australia Bank acted on the information provided by you and granted the credit cards.

10In Charge 2 you made an application for a credit facility to the ANZ Banking Group in the name of Mark William Logie but also answered questions falsely.  The bank acted on your false representation to them and granted the credit facility.  The proceeds of these facilities were never recovered.  Your financial position being such that you were later declared bankrupt.

11This kind of offending is prevalent and sentences imposed by the court for this kind of offending must recognise that and must appropriately reflect general deterrence so as to deter others who may seek to offend as you have.  An aggravating factor here is the fact that your offending occurred whilst on bail and s.16(3C) of the Act provides that in such circumstances unless the court orders otherwise, the sentence imposed for offending that occurs whilst on bail must be served cumulatively on the sentence imposed on other charges or upon sentences being undertaken.  So I must have regard to that.

12In sentencing you I must also have regard to the need for a sentence imposed to appropriately denounce your offending but I must also impose just punishment and I must have regard to your prospects for rehabilitation.  You have pleaded guilty to the charges and that is to your credit.  Whilst you did not plead guilty at the earliest available opportunity your pleas of guilty have nonetheless saved the time and the cost of what might have been a reasonably lengthy trial, probably about a week, and you have saved the time and cost of that so there is some public benefit and utility in the fact that you have pleaded guilty at an early time, and that entitles you in my view to a reduction in sentence that would normally apply.

13As I say, you are presently undergoing a sentence and any sentence that impose, unless I order otherwise, will start with the presumption that it is served concurrently with the sentence that you are presently undertaking.  However, as the prosecutor quite correctly submitted to the court you will have to serve a non-parole period set by me under this sentence and in fixing that period I will have to have regard to, as I said earlier, principles of totality.

14Ms Price filed with the court a helpful outline of submissions in which she addresses a number of matters relating to your background and I now borrow from that document.

15You were born and raised in Melbourne by your mother and your parents never married and your father played no role in your early life.  You were really raised by your mother, maternal grandmother and aunt.  You first met your father when aged 10 and had no contact with your half-siblings on your father's side.  Your mother died in 1991 and your grandmother and aunt have now also passed.  You were educated in West Melbourne at primary school and you later attended Footscray Technical College until Year 11.  You played cricket and football with local clubs in the North Melbourne area.

16You have had a good working record commencing as a salesman and trainee manager at Myer for approximately five years, after which you obtained a clerkship with the State Bank of Victoria, as it then was.  You became a home lending and integration officer assisting in the transmission to the Commonwealth Bank of Australia.  You became credit officer and settlements clerk at the National Bank and later worked at Aussie Home Loans as a credit and lending officer.  You were later promoted to managerial roles at the Bank of Melbourne and Westpac specialising in home lending.  You were appointed state manager for Victoria and Tasmania for ING.  All of that training and work in the financial sector no doubt equipped you with the knowledge and expertise to successfully pass off these fraudulent loan applications that bring you before the court today.

17You established a number of companies in the financial sector which appear to have been successful and I infer that you must have had a reasonably good reputation in your work in that sector otherwise you would not have succeeded as you did.  You met your partner Kate in 1990 when you both worked for the State Bank.  You married in 1993 and had four children, three daughters and a son.  One of your daughters was in court today to support you and I have received written references from your wife and daughters, all of which I have read.  All of which speak highly of you as a devoted and loving father who has worked hard to provide for his family.

18Not unexpectedly your relationship with your family was strained because of this offending and other offending for which you were dealt with His Honour Judge Trapnell, but I was told and accept that since the passing of that sentence and since you can now see a way forward into the future that the relationship has greatly improved.  As a sentencing judge that is evidence that makes me feel reasonably comfortable in saying that your prospects for rehabilitation appear good.  Time will tell.

19You appear to have coped reasonably well in custody.  There is no evidence that you have caused any trouble, although you have suffered the difficulties always associated with prisoners in being institutionalised.  You are a billet in the drug and alcohol clinical services section at Barwon Prison, so you are regarded appropriately as a trusted prisoner and all that is to your credit.

20One of the important matters I think to have regard to in the sentencing of you is that you are now 49 years of age and have not had a prior criminal history other than for the matters that His Honour Judge Trapnell dealt with you for so that for the first 40 to 42 years of your life or thereabouts, I am not quite sure of the arithmetic, but for the first 40 to 42 years of your life you led an unblemished life and that all needs to be taken into account.

21As I indicated earlier this offending is common but it is serious.  Financial institutions and commerce generally cannot operate with this kind of offending going on.  Financial institutions must be able to act on and trust the validity of the information they're supplied with.  A good fraudster will always find a way through the system.  You are a good fraudster because you brought your expertise learned over many years of working in the financial sector to your crimes.  However the principles of totality mean that I must moderate the sentence that I would otherwise have imposed if dealing with these matters in a vacuum rather than in the background of those matters for which Judge Trapnell has already sentenced you for.

22The parties agree that having regard to the nature of each of these charges there is similarity and form.  It is appropriate in the circumstances that I impose an aggregate sentence applying the provisions of s.9 of the Act. 

23On Charges 1 and 2 I make an aggregate sentence of 12 months and I fix a non-parole period of six months from this date. 

24For the purposes of s.6AAA of the Sentencing Act, I declare that had it not been for your pleas of guilty to these charges I would have imposed a total effective sentence of two years' imprisonment and I would have fixed a non-parole period of 15 months.

25Are there any questions?

26MR COOKSON:  In terms of the forfeiture order, Your Honour.

27HIS HONOUR:  Have I got that?

28MR COOKSON:  I hope so, I say with some sheepishness.  If not I believe my instructor is - Your Honour, there is one document here that I would plan to physically tender.  It was referred to in the opening, it's the Marine Licence that is sought to be forfeited, that is the only thing.

29MS PRICE:  I consent.

30HIS HONOUR:  I will sign that order.

31MR COOKSON:  As Your Honour pleases.

32HIS HONOUR:  Do you have any questions, Ms Price?

33MS PRICE:  So that I think it's really just for Mr Whittingham's benefit that he would be required to serve an additional six months of imprisonment and then would have to apply for parole would be the effect of Your Honour's ruling.

34MR COOKSON:  And just to clarify ‑ ‑ ‑

35HIS HONOUR:  I expressly say that I am not imposing a sentence cumulatively on the sentences presently being undertaken.

36MR COOKSON:  I thank Your Honour for that clarity.

37HIS HONOUR:  You look a bit concerned, Ms Price.

38MS PRICE:  It just takes me a moment to - so the - Your Honour's not making any specific orders by way of concurrency or cumulation so s.15 governs the way it's to be dealt.

39HIS HONOUR:  The Act applies.

40MS PRICE:  Thank you, Your Honour.

41HIS HONOUR:  They deem to be served concurrently.

42MS PRICE:  Thank you, Your Honour.

43HIS HONOUR:  And the sentence is - just to make it clear, the Act provides that the sentence commences today.

44MS PRICE:  Yes.

45HIS HONOUR:  This sentence ‑ ‑ ‑

46MS PRICE:  Yes.

47HIS HONOUR:  ‑ ‑ ‑ commences today so that this non-parole period commences today.  The calculation of it.

48MS PRICE:  Yes, Your Honour.  Thank you, Your Honour, I am grateful.

49HIS HONOUR:  Can you take Mr Whittingham into custody please.

‑ ‑ ‑