Director of Public Prosecutions v Zafiratos

[2020] VCC 377

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 19-00493

DIRECTOR OF PUBLIC PROSECUTIONS

v

NEKTARIO ZAFIRATOS

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JUDGE:	HIS HONOUR JUDGE CAHILL
WHERE HELD:	Melbourne
DATE OF SENTENCE:	2 April 2020
CASE MAY BE CITED AS:	DPP v Zafiratos
MEDIUM NEUTRAL CITATION:	[2020] VCC 377

REASONS FOR SENTENCE
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Subject: obtain property by deception, obtain financial advantage by deception and theft (8 charges)
Catchwords: five women complainants - deceptions and theft totalling $48,193 – criminal history of dishonesty offences – longstanding bipolar disorder – Verdins principles 1 & 4 engaged – reasonable prospects of rehabilitation with treatment in community – 20 months imprisonment and 2 year Community Correction Order
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr M. Sharpley
For the Accused	Mr M. McGrath

HIS HONOUR: 

1Nektario Zafiratos, on 25 March 2020, you pleaded guilty to five charges of obtaining property by deception, two charges of obtaining financial advantage by deception and one charge of theft.

2The circumstances of your offending are set out in the prosecution opening.  They are agreed facts. 

3Seeking Arrangements is a sugar daddy website for older men seeking younger women.  In 2018, you registered a profile, under an assumed name, on the website.  You falsely claimed you were a successful businessman with substantial financial interests in Greece.  You also falsely claimed your ex-wife had frozen your bank accounts in divorce proceedings.

4You met five complainants through the website. 

5On 15 March 2018, you persuaded Complainant 1 to invest $10,000 in a bridal couture company in Greece.  She withdrew the money from her bank account and gave it to you.  You did not invest that money in any bridal business. That conduct constitutes Charge 1, obtaining property by deception.

6On 19 March 2018, you asked her to purchase mobile phones for you for your business.  You told her, because of your divorce proceedings, you wanted the phones in her name.  On 19 and 20 March, she went with you to Highpoint Shopping Centre where purchased three phones, each valued at $1,579, and headphones, valued at $399, for you.  You asked her for her bank account details to make a direct debit to repay her.  You kept the iPhones and the headphones but never made any payment to her and that conduct constitutes Charge 2, obtaining property by deception.

7Between 2 and 5 April 2018, at your request, Complainant 2 purchased four iPhones, valued at $6,316, for you.  You promised to repay her by direct debit to her bank account.  You kept the iPhones but never made any payment and that conduct constitutes Charge 3 of obtain property by deception.

8You asked her for a $10,500 loan to complete the purchase of a motor car.  Between 14 April and 4 May 2018, she made payments totalling $10,500 into a travel card for you.  You never made any repayment to her and that conduct constitutes Charge 4, obtain a financial advantage by deception.

9On 13 April, you persuaded her to obtain a David Jones credit card in her name for you to use.  You said you would reimburse her for expenses credited to the car.  You made several transactions, which incurred a debt of $5,969. 
You made no payments on the card and that conduct constitutes Charge 5, obtaining property by deception.

10On 1 May 2018, at your request, Complainant 3 bought two iPhones, valued at $3,158, for you.  You collected them from her home and paid her using funds on the travel card which belonged to Complainant 2 and that conduct constitutes Charge 6, obtaining property by deception.

11On 21 June 2018, you persuaded Complainant 4 that she needed a new mobile phone.  You went with her to a Vodafone store where she purchased an iPhone.  You took the phone from her and told her you would encrypt it and return it to her.  You did not return the phone and that conduct constitutes Charge 7, theft.

12Between 24 April and 1 May, at your request, Complainant 5 purchased four iPhones, valued at $6,316, and gave them to you.  You used Complainant 2's travel card money to repay her.  That conduct constitutes Charge 8, obtain property by deception.

13You dishonestly obtained $48,193 from your deceptive conduct.  Orders for compensation in a lesser amount was sought.  The phone company forgave Complainant 3's debt and you have repaid some moneys.  Each of the complainants identified you variously from Facebook and photo boards. 

14I have read the victim impact statements of Complainant 1 and Complainant 3.  They are both intelligent young women who have been psychologically traumatised by your criminal deceit.  It is not clear to me what their expectations from the dating service were, but they appear to have been vulnerable to your manipulation of them.

15Police arrested you on 18 July 2018 and charged you with other offences in respect of other young women you met on the same website and deceived as you did with the five complainants here.  I was told those proceedings are listed for hearing at the Melbourne Magistrates' Court on 14 April.

16You were remanded in custody where you have remained ever since.  You were charged with these offences on 15 August 2018.  You have admitted a criminal history, which dates to 17 December 1993.  All your offending, apart from two breaches of bail, is for dishonesty offences.

17On 21 February 1997, in the District Court of Brisbane, you were convicted of 27 dishonesty offences including false pretences, stealing and misappropriation and sentenced to five years' imprisonment.  Your minimum non-parole release period was two years.

18On 18 January 1999 at the Magistrates' Court in Brisbane, you were released on three years' probation for three fraud offences and passing a valueless cheque. 

19On 4 April 2011, in the District Court at Brisbane, you were sentenced for four fraud offences to a term of imprisonment of 18 months which was suspended for three years.

20On 13 December 2017, at the Downing Centre District Court in New South Wales, for four offences of dishonestly obtaining property and financial advantage by deception, you were sentenced to six years nine months and
15 days' imprisonment which commenced on 12 March 2012.  When you were sentenced, you had spent more than five years in custody.

21On 13 November 2017, at the District Court in Brisbane, for nine offences of dishonestly obtaining property and passing valueless cheques, you were gaoled for 509 days.

22Your counsel, Mr McGrath, told me that offending had occurred in 2011 and 2012.  He told me you were released from prison in late 2017.  You committed these crimes between March and June 2018.

23You were born in November 1972 in Brisbane and you are now aged 47 years.  Your personal circumstances are set out in the report of Ian McKinnon, psychologist, who interviewed you on 16 March 2020.

24You have one younger sister.  Your mother migrated from Greece to Australia in 1951.  In 1996, she returned to Athens, where she operates a bridal gown business.  Your father was a photojournalist.  You told Mr McKinnon you didn't see him, until he came to Australia from Greece, when you were two and a half years old.  You described him as a violent man who drank heavily and gambled.

25You said you had a close relationship with your grandfather until he died in 2004.  You reported, from the ages of 11 to 13 years, a Christian brother at your Catholic school sexually abused you.  You gave your account to the Royal Commission into Institutional Responses to Child Sexual Abuse in December 2015.

26You completed Year 12 at a Brisbane state secondary school and obtained a Bachelor of Business from the University of Queensland.  You set up a karaoke equipment hire business but while you were in Greece, your father sold the machines and gambled the proceeds away.

27You lived in Greece from 2003 to 2010.  While you were there, with a business partner, you ran a used car sales business.  It failed, in 2008, when the global financial crisis hit.

28As you said to Mr McKinnon, since you returned to Australia in 2010, you have been in and out of gaol.  You told him, when you were released from Silverwater Prison, you did not have anywhere to turn, and you resorted to cocaine and “a bit of ketamine to slow (you) down a bit”.

29You have a long history of bipolar disorder for which you are prescribed lithium. 
You said when you offended, you were not taking your medication and abusing cocaine.  You described yourself as very promiscuous and unable to hold down relationships.  You said you met intimate female partners through a sugar daddy website.  You described it as “a revolving door”.  You were “ripping them off“ and then spending the money on drugs and gambling.

30In Mr McKinnon's opinion, you suffer moderate Post-Traumatic Stress Disorder and enduring personality change due to your father's physical and emotional abuse and your teacher's sexual abuse, as well as your bipolar disorder. 

31He opined your psychological disorders made a major contribution to your offending by strongly and adversely affecting your ability to reason and make sound judgment. 

32He said 'Mr Zafiratos appears to have a long history of suffering severe bipolar mood swings with extremely manic episodes that have seen him hospitalised on several occasions.  Additionally, Mr Zafiratos' manic episodes appear to be strongly associated with his offences of dishonesty.  In such phases, Mr Zafiratos is likely to become overconfident, boastful and prone to exaggeration about his own social standing.  In my opinion, in this context,
Mr Zafiratos is prone to manipulating other individuals for his own financial benefit, often half believing he will actually make restitution to them later on, often by acting on his belief that he can gamble his way out of debt and to good financial standing.  In manic phases, Mr Zafiratos likely presents with narcissism, to be extravagant with money and being prone to spending and behaving in a manner strongly motivated by a deep desire to impress others and to be admired.

33Mr McKinnon continued, 'These are complex issues that Mr Zafiratos would be well advised to address and explore in ongoing psychiatric psychological therapy.  Something he has never previously engaged in for a sustained period.  Mr Zafiratos should expect to engage in several years of regular therapy to benefit significantly.  Mr Zafiratos' complex clinical picture suggests he is likely to find pharmacotherapy a useful adjunct to any other therapy he may engage in.”

34In Mr McKinnon's view, when you are not suffering a crisis and are in a better state of mental health, your antisocial and criminal traits largely recede and lie dormant.  He believes you have considerable potential to overcome your antisocial and criminal traits and make significant rehabilitative progress. 

35His opinions were not disputed, and I accept them.

36He noted you were coping well enough in prison.  While you have had no visitors, you speak regularly with your mother by telephone.  You have completed the courses and programs made available to you and have run others for other prisoners.  You have also held the trusted position of a peer listener.

37While in gaol, you have had several counselling sessions with WestCASA to help you address the trauma of family violence and sexual assault. 
The counsellor, Mr Uygen, wrote you reported experiencing frequent nightmares and flashbacks.  To him, you have presented with insight into your offending which is directly correlated to your trauma symptoms.  You have impressed him as being committed to your own healing and have indicated a wish to continue counselling when you are released.

38I was told your mother will support you financially and assist you with accommodation you have arranged later this month.

39Your counsel acknowledged a term of imprisonment is appropriate in your case.  In support of his contention, the length of your prison term should be less than the time, nearly 20 months, you have already spent in detention, he submitted the objective gravity of your offending was relatively low considering the modest financial loss to the complainants. 

40He also relied on the following mitigating factors.  Firstly, your plea of guilty, for its utilitarian value, acceptance of responsibility and remorse.  Secondly, the delay of more than 18 months in sentencing.  Thirdly, your mental health.  He submitted by reason of your longstanding psychiatric and psychological disorders, Verdins Principles 1 and 4 are engaged.  Fourthly, your positive steps to advance your rehabilitation while you've been in custody and fifthly, the greater hardship of incarceration because of the increased restrictions on prisoners and the worry of risk of illness due to the COVID-19 pandemic.

41Mr Sharpley, who appeared for the prosecution, in commendably concise submissions did not take issue with your counsel's submissions regarding your personal circumstances.  However, he contended the seriousness of your offending, demonstrated by your deception of five different women over an extended period, and the need for specific deterrence, given your considerable criminal history for dishonesty offending, require a term of imprisonment.  His submission was your time served is not an adequate penalty.

42I accept, firstly, your plea of guilty has high utilitarian value, particularly in times where this court's operations are necessarily disrupted as a result of the COVID-19 global pandemic.

43In that regard, I have been guided by a very recent observation of Jane Dixon J in DPP v Jordan Bourke [2020] VSC 130. At [32], Her Honour said, in relation to that offender:

'I regard your plea of guilty as having substantial utilitarian value at the present time, noting the current public health concerns regarding the COVID-19 virus, which may have impacted on the practical management of a jury trial if the matter had not resolved.  I note that in the interim, between you pleading guilty and this sentencing, new jury trials have had to be ceased for the time being in Victoria.  Fortunately, no jury pool needed to be called for in your case.'

44Her Honour's reasoning is apposite in your case. 

45I also accept your guilty plea is some evidence of your acceptance of responsibility for your actions and remorse.

46I accept, secondly, the uncertainty of your outcome, due to the delay in sentencing, has caused you additional anxiety. And thirdly, that your psychological and psychiatric disorders were a significant contributing factor to your offending, and, accordingly, your moral culpability is reduced.

47Additionally, specific deterrence, while a significant sentencing factor given your considerable history of dishonesty offending, is to be moderated also. 

48I accept, fourthly, you have reasonable prospects of rehabilitation, considering the progress you have made in custody, the availability of your mother's support and your potential to reform, provided you manage your mental health.

49I accept, fifthly, because of the heightened anxiety around the world due to the COVID-19 pandemic, prison will be harder for you, with the restriction and isolation of potential lock downs, and the worry, you, like all prisoners and every other member of the community, will suffer for the wellbeing of yourself and family members, in your case, your mother.

50I take guidance from the Court of Appeal in Brown v The Queen [2020] VSCA 60, a judgment which was handed down on 23 March 2020.
Their Honours, Priest and Weinberg JJA accepted at paragraph 48:

'The situation is causing additional stress and concern for prisoners and their families, as it is for every member of the community.  The extent to which that may be taken into account, if at all, will be a matter to be resolved on the particular facts of any individual case.'

51While Mr McGrath argued for your immediate freedom, I raised with him my concern that it is not in the community interest or yours that you be released without supervision, whether that be via parole supervision or community corrections order.

52Mr McGrath submitted that if there are treatment conditions that you could benefit from, these can be dealt with when you are sentenced in the Magistrates' Court.  I do not accept that submission.  Your reformation is relevant to both protection of the community and your rehabilitation.  I must take these matters into account in the sentencing synthesis.

53I must also consider the objectively serious nature of your offending.  Over a three-month period, you preyed on five young women, no doubt using your maturity and worldliness to your advantage, to betray their trust and cheat them of money, debit and credit cards and mobile phones, to obtain cocaine and to gamble.

54To enable me to consider all sentencing options, I have had you assessed for a community corrections order and you have been found suitable.  According to the assessment outcome report, you acknowledged you have struggled with this type of offending for most of your adult life.  You admitted you did it for financial gain to get cocaine and to gamble.  You showed remorse and said you have benefitted from the therapeutic support for your mental health and drug problem that you have received while in custody.

55To assist you to address the issues which relate to your offending, the assessing officer has recommended the following conditions:  supervision, treatment for your mental health, drug treatment and programs to address your offending behaviour.

56Overall, I have decided all sentencing objectives including punishment and your rehabilitation can be met by a combination of a term of imprisonment and a community corrections order. 

57Applying the totality principle, I have moderated the orders for cumulation of sentences to ensure your total effective sentence properly reflects your overall offending.

58By the sentence I impose, I must denounce your conduct, punish you and deter you and others from committing crimes of the same and similar kind.  I must also look to your rehabilitation.  Taking into account the circumstances of your offending, your personal circumstances and antecedents and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you,

59On Charge 1, obtaining property by deception, you are sentenced to 10 months' imprisonment. 

60On Charge 2, obtaining property by deception, you are sentenced to six months' imprisonment, which is to be served concurrently with the sentence I have imposed on Charge 1.

61On Charge 3, obtaining property by deception, you are sentenced to six months' imprisonment, which is to be served concurrently with all other sentences.

62On Charge 4, obtaining property by deception, you are sentenced to 10 months' imprisonment.  I direct four months of this sentenced is to be served cumulatively on the sentence I have imposed on Charge 1 and all other sentences. 

63On Charge 5 of obtaining property by deception, you are sentenced to six months' imprisonment which is to be served concurrently with all other sentences. 

64On Charge 6, obtain property by deception, you are sentenced to four months' imprisonment.  I direct two months of this sentence is to be served cumulatively on the sentence I have imposed on Charge 1 and all other sentences.

65On Charge 7, theft, you are sentenced to three months' imprisonment.  I direct one month of this sentence is to be served cumulatively on the sentence I have imposed on Charge 1 and all other sentences. 

66On Charge 8, obtaining property by deception, you are sentenced to six months' imprisonment, and I direct three months of this sentence be served cumulatively on the sentences I have imposed on Charge 1 and all other sentences.

67The total effective sentence is 20 months' imprisonment.

68In addition, in relation to all charges, you are sentenced to a community corrections order for a period of two years. As well as the core conditions,
I impose the following special conditions, supervision, mental health treatment and rehabilitation, drug treatment and rehabilitation and programs to reduce the risk of you reoffending.

69You are to report to the Sunshine Community Corrections Service within two days of your release from prison.

70I declare you have already served 597 days of your sentence by way of
pre-sentence detention.  I make orders for compensation in favour of Complainants 1, 2 and 4 in the amounts of $11,579, $27,785 and $300 respectively. 

71Because I am satisfied the seriousness of the circumstances of your offending warrants the order, I make an order you undergo a forensic procedure for the taking of a scraping from your mouth for placement on the database.  I must inform you that if, at the time of the request, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.

72Finally, but for your plea of guilty, I would have imposed a total effective sentence of three years six months' imprisonment with a non-parole period of two years nine months.

73Before I can make the community corrections order, you will be required to sign an acknowledgement that you understand the effect of the conditions of the order that I propose and sign a consent to me making the order.  If you do that, I will make the order.

74Mr Zafiratos, when the Corrections officer spoke to you, did she discuss with you the core conditions of the order and the effect of the additional conditions that were being recommended?

75OFFENDER:  Ah yes, she did, Your Honour.  I will accept anything that Your Honour is saying as far as sentencing and the additional requirements (indistinct words).

76HIS HONOUR:  And you will be asked to sign the acknowledgement that you consent.

77OFFENDER:  Yep.

78HIS HONOUR:  When you have done that, I will make the community corrections order.

79OFFENDER:  Okay.

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