DPP v Tessa
[2023] VCC 501
•30 March 2023
Not
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT Melbourne
CRIMINAL DIVISION
Case No. CR-18-02142
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMUEL TESSA |
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JUDGE: | HER HONOUR JUDGE HAMPEL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 16 March 2023 | |
DATE OF SENTENCE: | 30 March 2023 | |
CASE MAY BE CITED AS: | Markovic v The Queen (2010) 30 VR 589, Mohammed v The Queen [2022] VSCA 136 at [81 – 83], Rodgerson v The Queen [2022] VSCA 154 [73], Mendoza-Cortez v The Queen, Matamata v The Queen, [2016] VSCA 302, [2021] VSCA 253. | |
MEDIUM NEUTRAL CITATION: | [2023] VCC 501 | |
REASONS FOR SENTENCE
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Subject: Criminal Law
Catchwords: Sentence – Obtaining Property by Deception – Obtaining Financial Advantage by Deception – Guilty Verdict – Trial – Australian Financial Services Licence – Offender provided false insurance
Cases cited:
Sentence:Two years 10 months imprisonment, non-parole period of one year and 8 months
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Mr J Shaw | Commonwealth Director of Public Prosecutions |
| For the Accused | Samuel Tessa | Self-represented |
HER HONOUR:
Samuel Tessa, on 13 December 2022, a jury found you guilty of five charges of obtaining property by deception and two of obtaining a financial advantage by deception.
In 2005 and 2006, you made applications for an Australian Financial Services Licence (AFSL). It is necessary to hold such a licence to provide financial services, including offering to provide insurance. Your two applications were rejected at the pre-lodgement stage because they did not provide all the information necessary to be provided in support of such an application.
In the early 2000’s, you walked into a factory in Dandenong where
Mohammed Atesh operated a panel beating business, Exotic Panels. You produced a business card describing yourself as a senior consultant, for Review Financial Services. The card also bore the name Eastern Profits Pty Ltd and an Australian Corporation's Number. You offered to provide business and personal sickness insurance at a cheaper rate than his then current insurance. You offered to allow him to spread the cost over the year, that is to pay by instalments, rather than a larger annual lump sum. The reduced premium and the instalment plan were attractive to Mr Atesh and he accepted your offer. You presented him with what you described as the policy documents for business and personal sickness insurance, on RFS or Review Financial Services letterhead. He paid you a six monthly premium. From then on, for what he estimates to be fifteen years, until November 2016, you would attend Mr Atesh’s premises at least twice a year, present him with a renewal notice for business and sickness insurance, and he would write you out a cheque, which you banked. Twice in November 2016, instead of paying you by cheque, he transferred funds to an account nominated by you by electronic funds transfer (EFT).
You did not hold a AFSL, a requirement for those providing financial services, including providing or arranging insurance. You were not an insurance broker, an underwriter or an insurer. Nor were Review Financial Services or Eastern Profits Pty Ltd. By law, individuals cannot operate as insurers. Only corporations can be licensed as insurers. You could not have been licensed as an insurer in your own right. Nor could Review Financial Services, it was not a company. Eastern Profits Pty Ltd was not licensed and had never applied to be licensed as an insurer. No company associated with you had ever applied to be licensed as an insurer. It follows, neither you, nor any company associated with you, had ever provided proof, as is required from a licensed insurer, that you satisfied the prudential requirements for providing insurance. You had no reserves or underwriting arrangements on which to call to meet any claim for an insurable event, whether it be a relatively small amount, for example, for replacement of stolen tools of trade, or up to $5 million or $10 million to satisfy a public liability claim.
You banked the cheques received from Mr Atesh in an account with the Bendigo and Adelaide Bank in the name of Samuel Tessa trading as Review Financial Services. You were the sole signatory to that account. Analysis of that bank account showed that the account operated in effect as a clearing house. Whilst leaving a small amount as a float, all funds standing to your credit in the account from banked cheques were withdrawn, untraceably, either by ATM withdrawals, or on one occasion, by cashing a cheque drawn on the account at a branch.
Despite the documents provided to Mr Atesh being self-described as insurance policies or renewals, there was no business or sickness insurance that you could, or did provide. Charge 1, of which the jury found you guilty, concerns obtaining from Mr Atesh and his business Exotic Panels, eleven cheques totalling $29,161.95, obtained over a five year period from May 2011 to May 2016. I want to make it clear, my reference to your dealings with Mr Atesh before May 2011, is for context only.
Charges 2 and 3 are single transaction charges of obtaining a financial advantage by deception. They are part of the overall scheme by which Mr Atesh was defrauded, but they do not form part of Charge 1, as the payments of $1,632.90 and $1,266.80 respectively, were made by EFT and not by cheque. They were made over a three day period in November 2016, approximately six months after the last cheque was paid in respect of the course of conduct charge concerning
Mr Atesh, Charge 1.
A similar pattern of behaviour was followed by you in respect of the other course of conduct charges of obtaining property by deception. The behaviour involved a cold call walk in to a small automotive business in an industrial estate, production by you of a business card bearing your name and the names of Review Financial Services and Eastern Profits Pty Ltd. On those cards and in your verbal introductions, you gave yourself, RFS and Eastern Profits Pty Ltd, various descriptions. For yourself, senior consultant, or senior adviser. For RFS, general broker, or general brokers. At one stage, you appended the letters DFP/AFPA to your name. You invented a brokers licence or registration number for Review Financial Services and appended that to its name on the business card. Again, to each of the other four people, the subject of Charges 4, 5, 6 and 7, you offered to provide insurance at a lower rate than their existing cover or other offers being considered by them, or in circumstances where they had been refused insurance because of the level of their risk. You promised to accept payments by instalments, to accommodate cashflow issues faced by these businesses. Again, with each of the other four, you produced and provided documents on Review Financial Services' letterhead described as insurance policy or renewals. Again, there were in person visits to present the 'renewal notices' and collect the instalment cheques.
Each of the other four people, the subject of Charges 4, 5, 6 and 7, accepted your offer to provide business insurance. Despite the documents provided to each of them described as insurance policy or renewal, there was no business insurance you could, or did provide.
Charge 4, of which the jury found you guilty, concerns the obtaining from
Mr Harrison and his business Jada Engineering, of nineteen cheques totalling $42,752.80 between March 2013 and December 2016. Again, there is context evidence showing your initial contact with Mr Harrison occurred over 12 months earlier, and that he had been paying you for what he believed to be insurance before the commencement of the charge period. Again, for sentencing purposes, that is context only.
Charge 5, of which the jury found you guilty, concerns the obtaining from
Mr Naughten and his business AAA Auto Panels, of thirty-six cheques totalling $12,261.75 over a five-calendar year period, from October 2012 to February 2017.
Charge 6, of which the jury found you guilty, concern the obtaining from Mr Hanna and his business Superban Auto, two cheques totalling $1,451.60. That represented two quarterly instalments paid in August and November 2014. And Charge 7, of which the jury found you guilty, concerns the obtaining from
Mr Calkular and his business Elite Auto Refinishing, of seven cheques totalling $5,963.90 between July 2015 and April 2017.
Mr Calkular and Mr Hanna each suffered thefts of tools of trade from their premises. They made claims which you rejected or reduced to a derisory amount.
Your defence at trial was, in simple terms, that you believed that you held an AFSL and that you could operate as an insurer, broker, and underwriter, that the policy and renewal documents were genuine, that you did provide insurance and that you rejected or reduced the claims of Mr Hanna and Mr Calkular in the proper conduct of your insurance business. You also asserted at trial, both in cross examination of witnesses and when in the witness box yourself, that it was not necessary to hold an AFSL to operate your business. Behind that relatively straightforward account of what I understood to be your defence however, were repeated and baseless claims of fraud, incompetence, conspiracy, and fabrication of evidence.
The evidence that you did not hold an AFSL, and did not believe you held one, was in my view, overwhelming. It came from contemporaneous records made by a number of independent ASIC officers from different areas of its operations between 2003 and 2006 of their dealings with you, and from other regulatory bodies, in particular the Australian Financial Complaints Authority. It was confirmed by documents found at your house when a search warrant was executed in 2017.
Consistently with the jury verdicts, I am satisfied that you did not, as you asserted you did, lodge a further application for an AFSL after your second pre-lodgement rejection in February 2006. I am satisfied, as the jury must have been, that you requested and received a refund of your lodgement fee in late 2006, and that you were aware that your membership of the insurance broker's dispute scheme had lapsed as a result of your not making further application for a licence.
There is no evidence to support your claims of a conspiracy or cover up involving a number of people and data sources, involving destruction of records and fabrication of records, either to destroy evidence that you had lodged a further application for licence or to fabricate records to suggest that you had requested and received a refund of your application fee. In any event, your assertion that you believed at all times from late 2006 until now that you were licensed because you heard nothing to the contrary from ASIC, defies logic, common sense and accepted business practice.
By its verdicts, the jury must have been satisfied beyond reasonable doubt that you:
· knew you were not licensed or authorised to arrange or provide insurance;
· represented to your five named victims that you would arrange or provide, through entities controlled by you, business insurance for their businesses, and in the case of Mr Atesh, sickness insurance as well;
· received and applied to your own use, a total of $94,451.70 in cheques and bank transfers as a result;
· did not arrange or provide the promised insurance.
The jury, therefore must be taken to have excluded as a reasonable possibility that you:
· believed you were licensed or authorised to provide insurance; or
· provided the promised insurance.
The maximum penalties prescribed by Parliament for these charges is 10 years imprisonment. That is one measure of the seriousness of these offences. All five obtain property by deception charges are course of conduct charges.
So far as the course of conduct charges are concerned, the maximum sentence remains 10 years, the same as for a single transaction, but the actual sentence imposed for each course of conduct charge must reflect the overall criminality or totality of the offending, referable to that charge.
For sentencing purposes, Charges 2 and 3 I treat as part of the same course of conduct in respect of the same victim as in Charge 1. I note that extends the time of offending to five and a half years overall.
The prosecution submitted that the objective gravity of the offending, and your culpability and degree of responsibility for the offending were all high. Having considered the submission and the evidence at trial and your submissions, I accept that.
The prosecution pointed to the number of victims, five in total, the protracted period of offending, almost six years from May 2011 to April 2017, to the amount obtained by deceptions, a little under $100,000 or ($94,451.70 to be precise).
The prosecution submitted that this was your enterprise, that you were the architect and sole operator of the fake insurance scheme, and personally received and benefited from all of the money obtained as a result of the offending. Again, I accept that submission having reviewed the evidence and the submissions myself.
You maintained your innocence post verdict and you did not directly address the submissions on offence gravity on plea. However, your case at trial and on plea was put on the basis that you were indeed the sole operator of what you maintained was a lawful enterprise, of providing and underwriting insurance cover. Indeed, you told the jury you had been providing insurance products to members of the public since the late 1990’s.
I have already noted the various descriptions, qualifications, bogus registration numbers and titles that you gave yourself, Review Financial Services and Eastern Profits Pty Ltd on the business cards, and documentation that you provided to Messrs Atesh, Harrison, Naughten, Calkular, and Hanna over the period of offending. In your direct dealings with them, you described yourself variously as a broker, an operator of your own broking business, a seller of insurance and a senior adviser to Review Financial Services. You described Review Financial Services and Eastern Profits Pty Ltd variously as a broker, an insurer and an underwriter. By the time of trial, you were describing yourself as an ‘insurance provider’ and underwriter. You acknowledged throughout this was your enterprise.
You were, and acknowledged you were the sole director of Eastern Profits Pty Ltd and the sole shareholder or beneficiary, and that it was the owner of the business name Review Financial Services, through which it plied its trade. You eventually acknowledged your business cards and letterheads contained invented qualifications and false titles, affiliations, and registration or licence numbers when questioned about them by Mr Shaw in cross-examination.
When fending off claims by Mr Calkular and Mr Hanna, when they tried to make claims on the fake insurance policies, you sent letters on RFS letterhead over various signature blocks, some bearing your own name alone, others, giving yourself the status of a general insurance broker for RFS. Other correspondence was notionally sent by what purported to be the various departments or divisions of RFS, including RFS claims department, RFS claims/underwriting, RFS underwriting, RFS claims, and RFS liaisons. You were the author of all those letters, and the inventor of those bogus titles. Despite the grandiose titles and attempts to portray yourself, RFS and Eastern Profits Pty Ltd as legitimate insurance entities, you were the sole operator of the scam.
In your initial correspondence with the court following the jury verdicts, you described yourself as 'wrongly accused/tried – insurer/underwriter'.
You maintain that Messrs Atesh, Harrison, Naughten, Calkular, and Hanna were each made explicit promises by you on behalf of Review Financial Services, and in the documentation provided to them, that RFS would provide insurance. You maintained that their businesses were insured by RFS or Eastern Profits Pty Ltd and that Mr Atesh was also insured against loss in the event of sickness or accident.
It is on that basis that I find, for sentencing purposes, that you were, as the prosecution submitted, and you acknowledged, the sole architect and beneficiary of what I find to be a fake insurance business operated by you, through RFS and Eastern Profits Pty Ltd.
This was not a single transaction, or one covering a relatively short period of time. The charges span six years. You visited your victims’ businesses at least twice a year, in some cases more frequently, each time, falsely promised them you were providing them with insurance, as you collected the payments from them. It was crude, yet sophisticated. You produced documents each time that professed to be insurance policies or renewals. They were in truth, no more than pieces of paper, produced by you to provide an appearance of authenticity. You turned up without fail at renewal time to collect the next payment. I accept, for sentencing purposes that you received and applied to your own benefit, the whole of the moneys paid to RFS by Messrs Atesh, Harrison, Naughten, Calkular, and Hanna and their businesses. That you ultimately purported to retrospectively cancel Mr Hanna’s policy years after he had made his claim and returned to him the amounts paid by him is not to the point. You received his cheques and applied them to your own benefit. That you later chose to return the money, does not negative the finding that you intended to and in fact did apply, the cheques received from him to your own benefit.
On one level, it may be said the total amount obtained by you was relatively low, compared to other frauds dealt with in this court and compared to the jurisdictional limit of the Magistrates' Court. But to your victims, these sums and the risks to which they were exposed were considerable. All five businesses were small, single operator businesses, relying on the reputation and labour of the principal. All appear to have run on tight margins, evidenced by the attractiveness to each of them of the ability to pay by half yearly, quarterly, or in some cases, six weekly instalments. Because of the high-risk nature of their businesses (but not because of a past poor claims history) some had been unable to secure insurance at all, or at a reasonable cost. All believed that the “insurance” would cover them for claimable losses, including public liability and product liability. You purported to provide them with public liability cover, in some instances $5 million, in others $10 million, and product liability cover of up to $5 million. Messrs Hanna and Calkular did not have the reserve funds to replace the items stolen from their premises, and as the evidence showed, were unable to operate for some time, or were only able to operate at a significantly reduced level after the thefts, until they could save or source additional funds to replace their stolen items.
Hence, the relatively low overall amount does not detract from the assessment of objective gravity, your culpability or degree of responsibility as high.
This was a breach of trust of each victim. You exploited the desire to obtain low-cost insurance to protect their livelihoods. In stark contrast, Messrs Atesh, Harrison, Naughten, Calkular and Hanna, acted with honour, ensuring they had the funds to cover each instalment cheque.
Mr Harrison, in his victim impact statement said poignantly:
'My business involved trucks and lifting equipment and was based on mutual respect and trust. My customers trusted me to do things right and I respected that trust. To learn after many years of paying for it, that my insurance cover, the insurance cover required of me that I assured everyone was in place was a hoax, has caused me considerable anxiety and shame. When Mr Tessa lied to me, he made me a liar. When Mr Tessa cheated me, he made me a cheat. When Mr Tessa defrauded me, he made me a fraud. How do I hold my head up as a man of honour?'.
It is clear therefore that denunciation, deterrence and just punishment loom large in the sentencing mix. The harm, actual and potential to your victims, of operating uninsured is clear and significant. People operating businesses, who in good faith, pay out for insurance, are entitled to believe they are in fact insured and their insurers, brokers, underwriters and providers of financial services, including those who sell or provide insurance are registered, licenced, regulated and comply with the necessary prudential requirements to be able to meet claims when they arise. They, their customers, and the general public likely to be affected by the occurrence of an insurable event, are entitled to believe they will be covered by insurance against loss and damage. Business and consumer confidence relies on trust.
People who exploit that trust and operate outside these rules designed to impose standards of probity and financial viability on insurers, underwriters, brokers and providers of financial services and defraud members of the public in the way you did, must understand that they will be held accountable. Their unscrupulous, exploitative, and protracted conduct must, by the sentence, be, and be seen to be condemned, and denounced. Those who engage in such conduct must face just punishment which is reflective of the objective gravity of the offending, their moral culpability, the need to denounce their conduct, to deter them and others like minded from engaging in such behaviour, and to protect the community. The sentences must also take into account your personal circumstances and encourage rehabilitation.
You have sought to portray yourself as the victim and to divert attention from your conduct by casting blame on others. You have been focused on what you assert is corrupt conduct on the part of the regulator, ASIC, in relation to the critical findings by the Auditor-General, and in a subsequent inquiry commissioned by the then treasurer, into payment of benefits or allowances to a former chair and deputy chair of ASIC.
I make the following points. There were no findings of corruption. The Auditor-General and special inquiry findings were critical of the inadequacy of the internal processes and oversight in relation to payment of executive benefits. Those matters have no connection with the proper discharge of ASIC’s regulatory function in relation to AFS licensing. There is no temporal connection. The employment of the chair and deputy chair and the subsequent inquiry into the internal processes and oversight into their benefits, occurred not only after the end date of the charges I have to deal with, but over 10 years after your dealings with ASIC in relation to your application for an AFSL.
You demonstrate a pattern of doing what you want, when you want without regard to the law, or the rights of others. You refuse to take responsibility for your own conduct, and when faced with facts which do not suit you, you lie, seek to divert attention from your own criminality by asserting conspiracy, corruption or incompetence, or by disrupting proceedings. You have made repeated, sweeping, and baseless allegations of corruption against ASIC and individual ASIC officials and investigators, the Commonwealth DPP and individual CDPP lawyers, and the prosecutor. You have also levelled accusations of corruption, and bias against me, and Judge Mullaly, the head of the criminal division of the court.
Your inability to accept responsibility for your own behaviour is demonstrated too by your criminal history. You have admitted your criminal history. At one level, it can be characterised as confined to relatively minor offences of some age. However, it has some relevance as the prior convictions are either for offences involving deception or dishonesty, or involve breaching court orders.
You were convicted and fined for obtaining property by deception over 2- years ago, and for theft from a shop, over 10 years ago. The theft conviction was recorded only a year before the beginning of this offending. Over a five month period concluding in January 2005, you were dealt with in three separate hearings for eight charges of breach of an intervention order. In August 2006, you were dealt with for a further breach of the intervention order and breaching a community-based order which had originally been imposed for breaching an intervention order.
You have admitted your criminal record but maintain you innocence of all prior matters. You assert you were either wrongly convicted, or pleaded guilty for pragmatic reasons. You appealed against some convictions, but abandoned the appeals. Again, you said that was for pragmatic reasons. You maintain you are an honest, law abiding citizen, who again, in respect of these charges, was wrongly convicted.
Although these are, as I noted, relatively minor offences of some age, they indicate some characteristics common to the circumstances of the offending which I am to sentence you for, namely, doing what you want to do regardless of any legal prohibition on acting as you did, denying or shifting responsibility for your wrongdoing to others, and minimising your behaviour.
In 2019, you were dealt with for another obtain by deception charge in respect of an offence committed in 2018. It is, as both you and the prosecution correctly submitted, not a prior conviction in respect of this offending.
The prosecution submitted its only relevance was to the assessment of your prospects for rehabilitation. The context (obtaining dental treatment under a false name, then running away without paying the bill) is entirely unrelated to the offending for which I must sentence you. Consistently with the rationalisations, denials and minimisations in respect of your prior convictions, you maintained your conduct on this occasion was properly characterised as not paying a bill on time, rather than criminal. Given the different circumstances and the comparatively minor amount of money involved, I consider the weight to be given to it in assessing your prospects for rehabilitation is, at best, slight. I have therefore decided not to take it into account for any purpose in sentencing you here.
Turning then to your personal circumstances.
You are now just 56 years of age. Your family heritage is Russian or perhaps, more accurately, from a former soviet state. You were born in what was then the USSR. You told the jury that when you were in your early teens, your parents left the USSR, bringing you and your older brother to Australia to make a new life here. They did that to avoid your then 16-year-old brother being conscripted to fight in the war in Afghanistan. You completed your schooling here and embarked on what you told the jury was your chosen career in the insurance industry. Evidence in the trial indicates that you have at times, maintained that you have been continuously engaged in selling or providing insurance since the establishment of Eastern Profits Pty Ltd in 1989. Other evidence indicates that you were, for a period, bankrupted, and at times you indicated to ASIC that you were not operating as an insurer, or not seeking out or servicing new clients pending the grant of an AFSL. You told the jury you were a successful businessman, that you made your living and supported your family from the insurance business you operated through RFS and Eastern Profits Pty Ltd. You said had substantial assets and the means to pay out any legitimate claims.
The prosecution submits your prospects for rehabilitation are poor. I agree. In addition to your prior convictions for dishonesty and flouting court orders, I rely on the matters I have already identified when addressing your failure to take responsibility, and the pattern of making baseless allegations of serious misconduct against those who seek to hold you to account for your behaviour. I accept the prosecution's submissions your conduct in relation to your dealings with ASIC, demonstrates a disregard for the integrity of the system of regulation of the insurance industry. Your conduct at trial and on the plea is further evidence of your determination to do what you want, when you want, without regard to the rights of others or the rules and laws that bind us all. That fortifies my view of your poor prospects for rehabilitation.
At trial and immediately following verdict, you asserted you intended to return to operating as an insurance provider. As I have noted, your early post verdict correspondence was signed 'Mr Samuel T Tessa, wrongly accused/tried –Insurer/underwriter'.
By the time of the plea hearing, you had, it would appear, changed your mind about that. The change of mind was not due to acceptance of the jury verdicts, any personal or moral responsibility or insight. Your change of heart you attributed to the combination of the loss of reputation brought about by what you maintain was a wrongful prosecution and conviction, and your loss of faith in the justice system and the regulator, as a result of the conduct and outcome of the trial. You took to signing your correspondence with the court as 'Mr Samuel T Tessa, wrongly accused/tried – Retired Insurer/underwriter'.
Even if you do intend to cease activity as an insurance provider, not to apply for an AFSL again, or to cease your involvement in the insurance industry, for the reasons I have just outlined, in my view your prospects for rehabilitation remain poor, and the need to give weight to protection of the community and specific deterrence remains.
Turning to your current circumstances. On the plea, you said the ASIC investigation had prevented you from plying your trade as an insurer since 2017. You said your only source of income since then had been a carer’s benefit, which you received as a result of the care you provided to your elderly mother. You said that she lives alone, nearby to your home.
You submitted your mother, and your son would suffer hardship if you were sentenced to a term of imprisonment.
In your written and oral submissions, you detailed the daily care you provided to your 87 year old mother. Your written submissions filed on 7 March, summarised what you have put on the various occasions. You put it in these terms:
Required obligatory daily and ongoing duties include: administering prescribed medicine, dressing and grooming, household chores/meal preparation, responsible for weekly shopping and all utility outgoings, compulsory escorting on regular scheduled visits to the hospital/private GP.
So far as your mother is concerned, you submitted:
It is absolutely imperative to be able to continue to provide essential aid to the elderly woman, as required on daily and ongoing basis. Any deviation from current arrangements, will naturally affect the wellbeing of an elderly woman, as the lady entirely dependent on full, comprehensive support and without a doubt will carry permanent repercussions.
In your supplementary submissions filed on 20 March 2023, you expanded on that in these terms.
As already stated verbally and in writing, a full comprehensive ongoing daily support is required and I am the sole and prime caretaker and have been such for the last 15 years.
The lady by choice lives on her own and in the walking proximity of my residence, where I attend every day to provide necessary, comprehensive care and support.
The elderly lady requires full comprehensive care-support and without a doubt in absences of such will prove fatal.
So far as your son is concerned, you said he was totally dependent on your support. You said he lives with you, and is a fulltime university student, studying law at Melbourne University'.
In the supplementary submissions, you said:
A bright intelligent young man will be forced to quit his university studies, seeking secondary-rate employment to support himself, a bright future will be lost to the society and in his disappointment, not to be able to pursue one's in a lifetime opportunity, may very well end him up on the streets without his father’s support and guidance.
When sentencing for State offences as these are, hardship to family members of an offender can only be regarded as a mitigating factor in exceptional circumstances.[1] Exceptional circumstances generally only arise where a third party is exceptionally vulnerable and dependent on the offender. The circumstances must rise above the general and sometimes tragic hardship all too often suffered by families of offenders. I have been presented with no cogent evidence of exceptional hardship, as that term is used in Markovic, Mohammed, Rodgerson and other cases. Your mother will no doubt be adversely affected if you are unable to provide the daily care for her that you detail. But she lives, you say by choice, independently. There is no evidence to suggest that she will be unable to access the support that you have provided elsewhere. And there is no evidence to support your assertion, the consequences for her if you were imprisoned and unable to provide the support that you say you have been to date would be fatal.
[1]Markovic v The Queen (2010) 30 VR 589, Mohammed v The Queen [2022] VSCA 136 at [81 – 83],
Rodgerson v The Queen [2022] VSCA 154 [73].
Your son is an adult, and there is no evidence to indicate he is incapable of supporting himself, or, for that matter, assisting his grandmother in the event you are unable to do so. If he has not had to support himself, or contribute to his support whilst undertaking tertiary study, even in law, he has been fortunate indeed and perhaps exceptional. That is a luxury many students, including law students do not experience. There is no evidence to support your assertion he would be forced to quit his studies, if you were sentenced to a term of imprisonment.
Their circumstances, alone, or combined, fall well short of the threshold required to be established for family hardship to be taken into account as a mitigating factor.
There are other matters I take into account as mitigatory. I have been advised that ASIC has served you with a notice under s91(1) of the Australian Securities and Investments Commission Act 2001, notifying you it is considering making an order that you pay the whole of the expenses of the investigation, (specified as $124,583.36). This is not an order the court is asked, or empowered to make. It is a power reserved to, or conferred on ASIC itself by Parliament.
In his helpful supplementary submissions, Mr Shaw on behalf of the prosecution, directed me to a number of decisions where courts, faced with a similar s91(1) notice, had considered whether the possibility a costs order might be made was a mitigating factor when sentencing. It would appear, some courts have taken account of the stress of the possibility a costs order might be made as mitigating. On the other hand, in R v Cooper[2], the sentencing judge took the view that where the nature of the conduct was such as to require substantial effort to detect and investigate, the possibility the offender may be required to reimburse the public for the costs of the investigation should not be a mitigating factor.
[2] [2022] WASCSR 43.
Whilst there is force in the observations of Forrester J in Cooper, as applicable to your case, I will assume in your favour that you may suffer additional stress following the jury verdicts as a result of the possibility that a costs order may be made against you and take it into account as a mitigating factor.
More significantly, I take into account as moderating the sentence otherwise appropriate, the extended time that this has been hanging over your head, unresolved. Whilst some of the delay is of your making, much of it is the result of systemic delays, both before and after covid significantly disrupted the operations of this court and all courts around the country. Your matter was in fact listed for trial and not reached before covid, and it was then delayed until last year, because of covid related disruptions to the court processes. And when your trial eventually started in the middle of last year, some months after its original scheduled listed date, after three weeks of evidence, the jury had to be discharged without verdict, when, through no fault of yours, irrelevant prejudicial material was placed before the jury. I consider that delay and particularly the circumstances of the first trial and the discharge of the trial and the delay consequent upon that as being a significant additional burden that I should take into account.
Finally, I take into account the impact of covid on persons sentenced. There are still restrictions in access to visits, courses and services, the freedom to move outside cells is still restricted, and the added risk of exposure flowing from incarceration, and the inability to exercise autonomy over managing the risk of exposure are all significant hardship factors to consider, when deciding whether to impose a term of imprisonment, and if so, how long it should be.
Of course, when considering the appropriate sentence, although there are seven separate charges, I must consider totality and ensure that the sentence reflects not just the individual charges, but the overall wrongdoing.
And I must consider, amongst other things, current sentencing practices. It is trite to say that no two cases are the same, and no two offenders' circumstances are the same. Nonetheless, comparisons with other sentences, whether to identify similarities or differences are helpful. The prosecution referred me to the cases of Mendoza-Cortez v The Queen and Matamata v The Queen, [2016] VSCA 302, [2021] VSCA 253.
Both cases involved amounts within the same sort of range as I am dealing with here. Both other sets of offences though were committed over a shorter period of time. Both involved persistence and a degree of planning as did this case and a level of sophistication, as did this case.
Significantly, both were cases where the offender pleaded guilty. You do not have the significant benefit of a reduction in the sentence otherwise appropriate, which flows from a guilty plea, by reason, not only of the operation of s6AAA of the Sentencing Act, but now, by reason of the principles outlined in cases such as Worboyes related to Covid hardship. In the two other cases, both offenders called in aid remorse, and evidence of rehabilitation. And in one case, one also could rely as additional hardship, on the risk of deportation.
Notably, despite these mitigating features which are not present here, but in both of the previous cases, terms of imprisonment were imposed.
I am comfortably of the view that no sentence other than one of imprisonment is appropriate in the circumstances. The sentences that I have fixed on involve the same sentence being imposed for each of the course of conduct charges of obtaining property by deception. In my view, the differences in the amounts obtained in the individual charges and the duration of the offending in the individual charges, is offset in relation to the charges committed over a shorter period and involving a lesser amount of money by the subsequent conduct, particularly and notably the treatment by you of the claims made by Mr Calkular and Mr Hanna.
I now proceed to sentence you. Samuel Tessa, on the seven charges of which the jury has found you guilty, you are convicted.
On Charge 1, a course of conduct charge of obtaining property by deception in respect of Mr Atesh, you are sentenced to be imprisoned for a period of eighteen months. On each of Charges 2 and 3, the single instance charges of obtaining a financial advantage by deception, you are sentenced to be imprisoned for a period of two months. On each of the remaining course of conduct charges of obtaining property by deception, Charges 4, 5, 6 and 7, you are sentenced to be imprisoned for a period of eighteen months.
I direct that four months of the sentences on each of Charges 4, 5, 6 and 7 be served cumulatively upon each other and on the sentence on Charge 1. That makes Charge 1 the base sentence. That makes a total effective sentence of two years and ten months and I fix the period of one year and eight months as the time that you must serve before being eligible for parole. There are no days of pre-sentence detention to be declared and I make the compensation orders sought.
Could you please remove Mr Tessa. Thank you, we will adjourn.
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