Director of Public Prosecutions v Zara

[2018] VCC 1584

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-01399

DIRECTOR OF PUBLIC PROSECUTIONS

v

DALE ZARA

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JUDGE:	HER HONOUR JUDGE QUIN
WHERE HELD:	Melbourne
DATE OF HEARING:	20 September 2018
DATE OF SENTENCE:	26 September 2018
CASE MAY BE CITED AS:	DPP v Zara
MEDIUM NEUTRAL CITATION:	[2018] VCC 1584

REASONS FOR SENTENCE
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Subject:         Use a false document and obtain a financial advantage by deception
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Goetz	OPP
For the Accused	Mr T. Sawyer (Plea) Ms S. Gaunt (Sentence)	Valos Black

HER HONOUR:

1Dale ZARA, you have pleaded guilty to one charge of using a false document and one charge of obtaining a financial advantage by deception.  The maximum penalty in respect of each of these offences is 10 years' imprisonment.

2The full details of your offending are set out in the Prosecution Opening
(Exhibit A) and can be summarised as follows:

3On 27 June 2017, you purchased a 2017 Mercedes-Benz C63 S coupe, (the Mercedes) for $180,867.92 from a BMW dealership.   In order to finance the purchase, you were to pay monthly instalments of $2,947.68 to BMW over 5 years through Alphera Financial Services. (the finance company)  

4You were encountering difficulties meeting the repayments and a friend introduced you to Patrick MUTO, who was the owner of “Patrix Prestige”, a used car business. On 13 February 2018, Mr MUTO agreed to help you negotiate with the finance company – the following day it was agreed that $118,000.00 would be paid to BMW through the finance company by Mr. MUTO by 27 February 2018 for purchase of the Mercedes; the remainder of the monies were to be paid by you under separate agreement with the finance company.  The finance company provided you documentation to formalise this agreement.

5Whilst these negotiations were taking place you had told your co-accused, Jean Michael MARIE, a friend, that you were trying to sell the Mercedes without your girlfriend knowing.  You told him you would transfer the proceeds of the sale of the Mercedes into his business account, so as to avoid discovery by your girlfriend. You agreed to give MARIE a commission of $1,500.00 for his assistance, and the remainder of the funds were to be dispersed to various accounts of your own.

Charge 1: Use false document

6You provided the finance company documents to MARIE, who altered the documentation and returned it to you.  The documentation was changed so that the BSB and account number where the funds were to be deposited was changed.

7On 27 February 2018, you emailed MUTO the fraudulently altered document, which purported to be from the finance company.

Charge 2: Obtain financial advantage by deception

8Despite MUTO agreeing to pay the $118,000.00 to you , he was unable to finance the purchase of the Mercedes.  As a result, MUTO negotiated the sale with Clinton MILLS, the manager of another luxury car wholesale business known as Dutton Garage.  They agreed that Dutton Garage would purchase the Mercedes and would pay BMW, via the finance company the $118,000.00 owing immediately.  In exchange, MUTO was to receive a commission as being the “middle man” in the arrangement.  In accordance with their agreement, MUTO forwarded Dutton Garage all the relevant documentation, including the fraudulently altered finance company documentation, which had been provided to him by you earlier that day.

9An accountant at Dutton Garage subsequently used the details in the altered document to transfer $118,000.00 to what she believed was the finance company’s  business account. However, the monies were in fact transferred into MARIE’s business account.

10Once the money had been transferred into MARIE’s business account on 27 February 2018, he immediately re-negotiated his commission fee with you.  On 2 March 2018, MARIE withdrew $11,970.00 from his business account and transferred it into his personal account as a commission for his ‘services.’

11The remainder of the monies transferred from the finance company was then deposited by MARIE into two separate accounts in the amounts of $86,000.00 and $20,000.00 respectively.  The latter amount was deposited into your girlfriend’s account, though was quickly transferred into your account.

12On 9 March 2018, Dutton Garage, believing the details provided in the false document were the bank details of the finance company, unwittingly transferred a further $14,607.00 into MARIE's account for another unrelated car sale.  As with the initial commission fee, MARIE  immediately transferred those monies into a personal account that he held.

DISCOVERY OF OFFENDING

13On 22 March 2018, MARIE closed his business account, which he was using as part of the deception on Dutton Garage.  On the same day, Dutton Garage also contacted the finance company in order to clarify why the titles for the vehicles had not been transferred.  The finance company responded that it had not received any funds from Dutton Garage.

14Following conversations between all related parties, it was discovered that the monies paid by Dutton Garage (that being a combined total of $132,607.00) had been paid into an account related to MARIE.  On the evening of 23 March 2018, MUTO went to your house to recover the funds.  Police were ultimately called, and it was at this time that an unrelated outstanding warrant was executed.

ARREST AND INTERVIEW

15You were interviewed in relation to this matter, and admitted that you had bought the Mercedes and were having difficulties making the repayments.  You said a friend had introduced you to Mr MUTO who was interested in buying the Mercedes for $118,000.00.  You were to pay the difference to the finance company.  You said that the title probably had not been organised because you had not paid the remaining amount.  You denied tampering with the finance company document.

16You were released pending further investigation.  On 27 March 2018, Police identified through your social media account, that you had left Australia on a holiday to Greece with your girlfriend.  You contacted investigators and indicated that you would return on 11 April 2018 and would contact Police on 12 April 2018.

FURTHER INVESTIGATION

17On 28 March 2018, police executed warrants on your bank accounts, which identified that of the $106,000.00 transferred from MARIE’s account into your account on 2 March 2018, only a total of $32,583.52 remained.  (That meant that you had spent about $73,000)  You admitted that some of the funds were used for your engagement ring, upgrades on your flights to Greece, expenditure relating to a Gold Coast holiday and cyber currency. 

RE-ARREST

18You were arrested at the airport when you returned from Greece on 6 April 2018 and were remanded, then granted bail on 11 April 2018.  I was informed that you spent that time in custody in the cells – I am sure that was a salutary experience for you.

PERSONAL CIRCUMSTANCES

19You are currently aged 30.  You were born in the Philippines, and arrived in Australia in 1989 when you were aged one.  You have two siblings – your parents were in Court and remain supportive of you.  You completed VCE in 2006 – you have always worked in sales and received multiple sales recognition and awards within your work place.

20You are currently engaged to your partner, Ms Criselda FLORES and are a father figure to her seven year old son.  Ms FLORES was in Court to support you and gave evidence on your behalf.  You currently provide significant financial support for the family.  I also received a character reference from her father, Maximino FLORES Jnr, Senior Pastor at your church.  He refers to you as regularly attending church and volunteering within the Church community – he expressed shock and concern at his discovery of your activities.  I take all of the material tendered on your behalf into account. 

21As to your work history, you were promoted to National Sales Manager for an online learning company in 2014-2015 and worked for them in Manila for about 4 months.  In 2016-2018, you joined a company called "Kyani".  You were a leader in a team of about 3000 people, selling health and nutritional products both face to face and online.  You participated in some charity work with this company in Manila.  You earnt the status of Diamond leader and travelled overseas for the company.  Unfortunately the business success did not continue that was one of the reasons why you found yourself struggling financially. 

22Your counsel submitted that your offending was due to monetary pressures and your limited life experience and naivety.  You were unable to re-finance the car – realistically you probably never could have afforded it.  As noted, much of the money was spent in support of your greedy extravagant lifestyle at the time. 

23You are currently employed as a Senior Insurance Broker for a health insurance company and you were in the top 5 high performers last month.  I was informed that your current employer is unaware of these matters.

24You have no issues with alcohol or drugs or any mental health problems.  You do have an unrelated prior conviction, for stalking occurring around the time you were 18 or 19 – you were, at that stage, sentenced to a community based order, though this was breached and ultimately varied to a fine in 2009. 

25

PLEA OF GUILTY

26You pleaded guilty to these matters at the committal mention.  I accept your guilty plea has significantly facilitated the course of justice and has a utilitarian benefit.  You have saved the Court time and the community the cost of contested proceedings.  You have accepted responsibility for your actions.

27I accept that your plea is also indicative of remorse – I was informed that you are embarrassed and ashamed about your offending.  You have placed in your solicitor’s trust account the amount that you gained, $106,000, in restitution or compensation for Dutton Garages. 

28Significantly, you assisted police in their investigation and you have provided a statement and given an undertaking to the Court to give evidence in accordance with your statement in proceedings against your co-accused.  His matter is currently listed for trial in this Court next year.

REHABILITATION PROSPECTS

29Your counsel submitted that you had good rehabilitation prospects given;

30That you have a good and successful work history;

31Your family support; your plea of guilty; your undertaking to give evidence and co-operation with police;

32And an unrelated prior conviction;

33The prosecution did not dispute that you had good rehabilitation prospects, and I accept that is the case.  Principles of specific deterrence and community protection are of more limited application given that finding.

GRAVITY OF OFFENDING

34Your offending appeared to be motivated by greed and maintaining a lifestyle you could ill afford;

35The amount of money you obtained was substantial – over $100,000;

36You were part of the plan to defraud those who were trying to assist you in solving your financial problems and overcoming your commitments in respect of an expensive car.

SENTENCING SUBMISSIONS

37Your counsel submitted that all sentencing principles could be properly recognised by the imposition of a Community Correction Order – I had you assessed for such an order and you were deemed suitable.  The prosecution submitted that the only appropriate disposition was for you to be sentenced to a term of imprisonment, though conceded that a combination term of imprisonment and CCO was open.

38General deterrence, denunciation and just punishment are important sentencing considerations.  Those involved in business need to be able to trust that documentation is legitimate and provide finance in good faith.  Though you may have been naive or uncertain how to get out of financial strife, you clearly were not entitled to the money or to spend it in the manner in which you did. 
I do take into account matters in mitigation, particularly your undertaking and your plea; without the former, I would have had little reservation in accepting the prosecution submission on sentence.

39If you could please stand?

40Taking all relevant matters into account I propose to sentence you as follows:

41In respect of Charge 1: you are to be placed on community corrections order  for a period of 2 years, with a work component 100 hours

42The same community corrections order will be imposed of the second charge.

43It is important that you understand necessary for you to do this work. Also, that if you find yourself in financial difficulties, that you should not to revert to such conduct or any offending whatsoever.  Any breach will have this matter come back before me.

44It will be noted on the court records that you had six days in custody, although it is not technically pre-sentence detention given the sentence which I have imposed. 

ANCILLARY ORDERS

45A forfeiture order is sought pursuant to s 33(1) of the Confiscation Act 1997.

46A forensic procedure order is sought pursuant to s 464ZF(2) of the Crimes Act 1958, you should be aware that the police are able to use reasonable force in obtaining a sample from you and if you do not consent to the making of the order that the police can use reasonable force in taking the sample from you.

47Pursuant to s.6AAA of the Sentencing Act, if you had not pleaded guilty to this matter, I would have sentenced you to a term of imprisonment of two years with a non-parole period of 15 months. 

48Anything else, Mr Goetz?

49MR GOETZ:  Your Honour will recall I foreshadowed a restitution order?

50HER HONOUR:  Yes.

51MR GOETZ:  It is thought more appropriate with respect that a compensation order be made?

52HER HONOUR:  Yes.

53MR GOETZ:  My instructor has sent to Your Honour's associate a draft of that or is trying to because the document that your associate has does not describe the Dutton Garage correctly.  The cheque that my learned friend's firm holds is made payable correctly, it would seem, to Dutton Wholesale Garages Pty Ltd.  So when Your Honour makes the compensation order, if that wording could be used and then that will be accurate and I also note that Mr Sawyer's name appears on that document.  If that could be altered together with a date?

54HER HONOUR:  Yes.

55MR GOETZ:  I think that completes the procedure orders, Your Honour.

56HER HONOUR:  Thank you.

57MR GOETZ:  Thank you. 

58HER HONOUR:  Ms Gaunt, I have got a copy of the community correction order here.  Could you please go with my associate and explain that to Mr Zara?  Thank you.

59MS GAUNT:  Yes, Your Honour.

60HER HONOUR:  What is the name again, Mr Goetz?  Dutton Garage what?

61MR GOETZ:  Dutton Wholesale Garages, plural, Pty Ltd.

62HER HONOUR:  All right. 

63MR GOETZ:  Not Pty Ltd? 

64HER HONOUR:  What I will do is correct those in chambers and my associate will send them through to your instructor.

65MR GOETZ:  I am being told that Pty Ltd ought to be deleted off the end of that second wording.

66HER HONOUR:  All right.

67MR GOETZ:  I also note that the 464ZF order that Your Honour's associate has is one that is normally used for a person in custody.

68HER HONOUR:  Custody, all right.  So can your instructor please forward the form that does not have the - when they are not in custody.

69MR GOETZ:  And what would be the appropriate police station for him to report to?  That ought to be?  Werribee?  That will be done, Your Honour.

70HER HONOUR:  Yes, thank you.

71MS GAUNT:  As Your Honour pleases.

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