R v Mardirian
[2019] VCC 1551
•25 September 2019
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
CR-18-00710
| THE QUEEN |
| v |
| KEROVPE MARDIRIAN |
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| JUDGE: | HIS HONOUR JUDGE MURPHY |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 18 September 2019 |
| DATE OF SENTENCE: | 25 September 2019 |
| CASE MAY BE CITED AS: | R v Mardirian |
| MEDIUM NEUTRAL CITATION: | [2019] VCC 1551 |
REASONS FOR SENTENCE
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CRIMINAL LAW – SENTENCE – Late Plea – Commonwealth Offences – Being an undischarged bankrupt obtained credit to the extent of $3,000 or more – Multiple prior bankruptcies – General deterrence – Specific deterrence - Limited remorse – Relevant prior criminal history – Breach of trust – Significant victim impact – Delay – Guarded prospects of rehabilitation – Considerations of totality – Principle of parsimony – Bankruptcy Act 1966 (Cth) s269(1)(a) – Crimes Act 1914 (Cth) – Van Haltren v R [2008] NSWCCA 274 – Total Effective Sentence 3 years and 9 months imprisonment, Non-Parole Period 2 years and 6 months imprisonment – Reparation Order.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr D. Renton (Plea) Ms A. Reid (Sentence) | Commonwealth Department of Public Prosecutions |
| For the Accused | Ms S. Poulter | Mel Walker Solicitors |
HIS HONOUR:
1Mr Mardirian, you have pleaded guilty to three charges of being an undischarged bankrupt and obtaining loans of more than $3,000 without advising the lender that you were an undischarged bankrupt, contrary to s.269(1)(a) of the Bankruptcy Act[1]. The complainant in the matter is Ms Stubbs.
[1] 1966 (Cth)
2You have also admitted under section 16BA as part of your plea to Charge 1, a similar offence involving Ms Legge. The maximum penalty for each offence is three years' imprisonment.
Circumstances of the offending.
3The circumstances of the offending were set out in the prosecution opening[2] which I incorporate by reference. In brief outline, you are aged nearly 58 and you were born in Beirut arriving in Australia when you were aged 17. You are an Australian citizen.
[2] Exhibit A on the plea
4The offences occurred during your fourth bankruptcy. You were declared bankrupt on 24 July 2012 for a period of three years and you were subsequently discharged from that bankruptcy on 16 October 2015. During the period of that bankruptcy you opened bank accounts with the CBA and the ANZ banks. You also arranged for an associate to open a further account in the name of Mr Rhodes at the ANZ bank. The statements from that account were forwarded to your PO box in South Yarra.
5Charges 1 to 3 involve loans obtained by you from Ms Stubbs. You first met her in March 2014. She was a single woman and had recently been the subject of a divorce and property settlement. She found you handsome, attentive and very charming. A relationship developed. You became aware that she had recently sold her family home and had received $2.2m as her share of the sale proceeds. You told her that you were a successful businessman and would give small business loans and charge high interest and implied that your business was very profitable.
6Between June and August 2014 you asked her for a loan of $255,000 for two months and said you would provide her 9 per cent interest, which would equate to $45,000. You told her you needed the loan because another person owed you $18,000. She agreed.
7On 18 August the complainant met you and you produced a loan agreement with the pre-signed witness signatures of your associate, Mr Rhodes. She never met him. The complainant signed the agreement and at your request paid the money into the bank account in the name of Mr Rhodes. She did not question you as she trusted you. The complainant transferred the $255,000 on 20 August 2014.
8On 8 October at the end of the two-month period you gave her $15,000 which led her to believe that you would make good your promise to repay the loan in full.
9On 9 October you asked her to lend you a further $300,000 to further your business interests and told her that a company, Strategic Holdings Proprietary Limited owed you $1m and that this could debt could be partially assigned to her as security for the loan. She agreed with this and a fresh written loan agreement, again pre-witnessed by Mr Rhodes, rolled up both loans for a period of 12 months and relying on the agreement on 9 October 2014 she transferred $300,000 into the ‘Rhodes’ ANZ bank account.
10On 9 November you requested a further $400,000 which you said was needed so you could invest in caravan parks. An agreement was signed on 9 November which had the effect of rolling up the previous loans resulting in a total of $1,000,000 repayable over 12 months, and on 11 November Ms Stubbs transferred the $400,000 into the Rhodes ANZ account.
11The loans of $255,000, $300,000 and $400,000 collectively make up Charge 1, being a total loan of $955,000, obtained from the complainant without advising her that you were an undischarged bankrupt.
12In November 2014 you gave Ms Stubbs a further $18,000 in cash as a repayment. On February 2015 after you and Ms Stubbs had travelled to Queensland together, you requested a further loan of $500,000 to invest in caravan parks. No formal loan agreement was entered into and she transferred this amount to the same ‘Rhodes’ ANZ account on 4 February 2015.
13On 24 February 2015 you requested a further loan of $400,000 and told her that it was vital so as to not to compromise your business dealings and in order to secure your investments. She agreed, however, no loan agreement was signed, and the money was transferred on 24 February 2015. The loans of $500,000 and $400,000 in February 2015 collectively make up Charge 2, being a total of $900,000.
14On 24 February 2015 Ms Stubbs started to ask whether she would get her money back. In response you provided her with three post- dated cheques each in the amount of $500,000 drawn on the ANZ bank account. They were dated 3 and 24 March and 14 April 2015. You told her not to cash the cheques before their dates as there would be no funds to cover them. You later convinced her not to attempt to cash them at all.
15On 10 April 2015 you requested a further loan of $60,000. She agreed. No loan agreement was signed, and the transfer was made on 10 April. This constitutes Charge 3.
16Subsequent investigations indicate that the moneys paid to Ms Stubbs were mostly transferred from the ‘Rhodes’ ANZ account to Crown Casino accounts held by you and Mr Rhodes or withdrawn in cash. Both you and Mr Rhodes went to the Casino where Mr Rhodes withdrew money as cash and handed it to you over several transactions. From December 2014 until September 2015 small amounts were repaid to Ms Stubbs. In total, amounts of $1,915,000 which was loaned to you, was the subject of repayments totalling $143,100. Ms Stubbs is seeking a reparation order from you in relation to the outstanding amount, about $1.7m, which includes some legal fees she incurred.
17On 10 November 2015 she confronted you and asked you for repayment of the $1.2m as the sum that was then due. You told her she would get her money on the 27th or 28th of that month.
18In February 2016 you told her for the first time that you had been a bankrupt at the time she had loaned you the money. Her evidence is that at no time did you advise her of your status as an undischarged bankrupt. You claim that you did make some mention of a bankruptcy but accept that it was not in the manner required prior to each loan being obtained.
19In relation to the additional offence admitted in relation to Ms Legge, you met her in November 2013. You told her that you were in the business of short-term money lending. You required money and would give her the opportunity to invest if she loaned you money. You told her one of your clients had died owing you a large amount of money and suggested that she could buy part of the debt from you, but she declined. A debt assignment was produced but not signed. Subsequently on 23 November 2013 you again approached her and asked to borrow $17,000 for a period of a week, agreeing to pay back $18,000. She agreed and made transfers to your ANZ bank account for $4,500 and $12,500, totalling $17,000. The money was withdrawn in cash the same day that it was deposited or within one or two days thereafter. Those monies constitute the section 16BA offence, as part of charge 1.
20On 23 May 2015 as a result of you breaching promises of repayment, she did some research and found out that you were an undischarged bankrupt. She contacted your registered trustee and advised the trustee that she had loaned money to you without being advised that you were an undischarged bankrupt. The prosecution accepts that during the course of your dealings with her, you did avert to bankruptcy but failed to properly disclose that you were an undischarged bankrupt at the time you obtained the loan from her.
21On 29 May 2014 Ms Legge and her husband, together confronted you about the fact that you were an undischarged bankrupt. You maintained that you had told her that you were bankrupt. In August you approached Mr Legge and offered to pay them to get rid of the matter. You provided a new deed of acknowledgement of debt dated August 2014 to Ms Legge which included a statement that the parties agreed that you were at all material times an undischarged bankrupt. There was an exchange of emails stating that the acknowledgement of debt had to be signed before you would pay anything. Initially the Legge’s refused to pay. You offered to pay the money in instalments. They finally agreed to your terms and subsequently the money was repaid.
22On 23 August 2016 you participated in a record of interview during which you admitted being an undischarged bankrupt and maintained that you had told the Legge’s that you were a bankrupt from day one, and that you had also told Ms Stubbs that you were a bankrupt when she invited you to go overseas with her. You told her that you were a bankrupt and you could not be bothered asking your trustee for permission to travel. You further stated that you knew the law of bankruptcy very well having been bankrupt previously.
23In October 2016 you were charged with a number of charges contrary to section 269 (1) (a) of the Bankruptcy Act[3]. The matter was the subject of a number of Committal Mentions until finally a Committal Hearing occurred on 26 March 2018. You were formally committed for trial to this Court on 5 April 2018. The trial was listed on 13 May 2019. On 4 March 2019 a plea offer was made to the Commonwealth Director. This was refused. The matter was listed in the Reserve List in this Court on 13 May and not reached. On 14 May a second plea offer was made. There was a response by the prosecution which was accepted, and a plea indictment was filed on 15 May and you pleaded guilty to the three charges on the indictment and on that day, signed the notice under s.16BA. The matter was then adjourned for a plea last week.
[3] 1966 (Cth)
Victim Impact Statements.
24Relevant to the seriousness of the offending is the impact on each of the complainants in the matter. Ms Stubbs provided a powerful victim impact statement indicating that she and her family have been devastated by her loss. The offending has had a profound and debilitating impact on the family. She became tearful and feels quite depressed. Her children worry about her. She had to sell a home and buy an inferior property. She had to sell her car and jewellery in order to survive, having lost the money. She was previously a happy fun-loving woman, trusting and believing in people but now she struggles every day. She continues to feel the humiliation of your deceit. The impact of your breach of trust on her was palpable in her victim impact statement before the Court.
25Ms Legge also provided a victim impact statement indicating that your conduct had caused her to go on an emotional rollercoaster and her children had felt the impact on her.
26I must take into account the impact on both the victims of your offending. In particular, your offending has had a major impact on Ms Stubbs. It is clear that she was in a vulnerable position in relation to you, given she stated she had fallen in love with you. Thus, the offending occurred during the relationship between the two of you. It is clear that your offending has had a considerable and continuing impact on her. Similarly, in relation to Ms Legge, although she has not suffered a financial loss like Ms Stubbs.
Seriousness of the offences.
27In order to consider the seriousness of the offences and your moral culpability, it is important to take note of your criminal record. On 16 May 2002 you were sentenced in this Court to four years imprisonment with a non-parole period of three years on nine counts of obtaining property by deception. This involved defrauding friends and associates of a sum totalling $502,000. An appeal to the Supreme Court was dismissed.
28On 12 April 2019 in this Court, on three charges of obtaining property by deception you were sentenced by His Honour Judge Dean to a total effective sentence of three years with a non-parole period of two years. You are currently serving that sentence. That offending involved amounts in excess of $800,000 although the victims recovered their losses. The offending arose in December 2009 and involved the fraudulent use of a Certificate of Title.
29Whilst it is strictly not a prior conviction, it is relevant to your moral culpability for this offending. Also relevant to your moral culpability is that this offending occurred during your fourth bankruptcy. The inescapable inference is that you were fully aware of your obligations towards creditors as a bankrupt. Considering the offending overall, the total quantum involved makes it serious, particularly in relation to Ms Stubbs.
30Charge 1 involves three different transactions totalling $955,000. Charge 2 involves two separate transactions totalling $900,000. Also relevant to the seriousness of this second charge is that notwithstanding your representation to Ms Stubbs that it was to invest in caravan parks, no action was taken in relation to that. The final charge involves a lesser amount, but again at that point Ms Stubbs had already advanced considerable moneys to you and to that extent her psychological dependence on you must have been at that point, very considerable.
31Overall, enhancing the seriousness of the offending here, is that it involved a large amount of money and personal vulnerability on the part of Ms Stubbs. There was also a breach of trust arising out of her personal relationship with you.
32Further aggravating features of the offending are that you used a bank account in the name of someone else to accept the deposits and your motivation for the offending was nothing but greed.
33In your criminal record it appears that on 23 April 2019 you were dealt with by the Warrnambool Magistrates' Court for a number of offences relating to record-keeping as a truck driver. A two-month sentence of imprisonment was imposed to be served concurrently with your current sentence. I do not see this offending as having any significant relevance in this case.
Matters in mitigation.
34In a comprehensive plea your counsel put a number of matters in mitigation which I take into account. First, she submitted that you should be given a palpable discount for your plea of guilty. You are entitled to the utilitarian benefit of your plea of guilty. It was a relatively late plea given that the matter was listed for trial before a plea offer was made, and the matter was the subject of a contested committal. There is however a utilitarian benefit in the plea as it obviated the need for a trial. You are entitled to that utilitarian benefit.
35The plea is also some evidence of remorse. It is hard, however, to see any real victim empathy here, but I do take it into account.
36Turning to your personal circumstances. As I indicated, you are nearly 58 and were born, grew up in Lebanon and experienced the difficulties associated with the civil war including losing your closest friend. You migrated to Australia and arrived in 1977 aged 16 and struggled to adjust to your new circumstances. You lost your older brother to suicide when you were in your late teens and suffered as a result of this.
37You married in 1984 and have two daughters. They are now aged 30 and 22. You separated from your wife in 2013 but continue to have an amicable relationship with her. One of your daughters remains fully supportive of you while the other has been somewhat more distant, one of your daughters has been visiting you in prison.
38Your mother is aged 86 and remains a support for you despite recent health problems. Your daughter, Lydia provided a character reference.[4] She indicates that you have been a strong supporter of your mother and notwithstanding your difficulties in life, have been able to overcome hardships and remain positive. She noted that after your business failed you commenced truck driving and have been in high spirits supporting her and providing support to your 86-year-old mother since commencing the truck driving.
[4] Exhibit 3 on the plea.
39In December 2016, as I previously indicated you have been working as an interstate truck driver. I was provided with a very supportive reference from your employer. He states that he is prepared to re-engage you upon your release from prison. I have taken into account both those references.
Prospects of rehabilitation.
40There has been considerable delay in this matter which the learned Crown prosecutor submitted should be neither to your advantage nor to your detriment. It took some time before the matter was the subject of a committal. The delay has meant that there has been no offending since these offences and thus enhances your prospects of rehabilitation. Further, you have had the offences hanging over you for a lengthy period. I take these matters into account.
41Overall, given my assessment of your moral culpability, notwithstanding that you have been offence free in the period since this offending came to light, I would regard your prospects of rehabilitation as being guarded, particularly given your prior convictions.
42In her sentencing submissions, your counsel submitted that considerations of totality are very important. She invited the Court to impose substantial concurrency in relation to the three offences as she submitted, they involved a single course of conduct.
43While I do accept that they involved a single course of conduct, they also involved a number of individual transactions within that period and there is a lengthy period, namely from August 2014 until April 2015 that the offending occurred. The separate offending should be reflected in some cumulation between the individual accounts. Considerations of totality are relevant given that you are currently serving a sentence of three years imprisonment with a minimum term of two years. Further given the delay from when that sentence was imposed, no concurrency is available for approximately six months.
44I have had regard to the sentence that you are currently serving and have had regard to considerations of totality, looking at the criminality involved in your overall offending here, and stepped back and applied principles of parsimony and proportionality in fixing the total overall effective sentence having regard to your earlier sentence.
45Your counsel submitted that any sentence should not alter your earliest release date, which under your current sentence is 11 March 2021. I am unable to accept that submission as the separate seriousness of the three different charges here, must be reflected in a significant sentence and the offending itself is of a different character to the offending for which you were dealt with by this court in March 2019. I have however, taken into account the period that concurrency is unavailable due to the delay from April 2019.
46Having considered all the submissions including the cases referred to by the prosecutor as providing something of a yardstick, and noting that the prosecutor accepted that the offending here was less serious than that in the case of Van Haltern[5], I have considered all the submissions put by your counsel and by the learned Crown prosecutor.
[5]Van Haltren v R [2008] NSWCCA 274
47In sentencing you, the learned Crown prosecutor reminded me that I am required to consider the matters in s.16BA of the Crimes Act and apply a principle of parsimony. Your counsel accepted that a sentence of imprisonment was appropriate. The learned Crown prosecutor noted that in relation to Charge 1, the sentence is to be “bumped up” as you have admitted the offending involving Ms Legge in the s.16BA notice, however the maximum penalty of three years imprisonment is not to be exceeded for that particular count.
48The learned Crown prosecutor in his submissions, noted that considerations of general deterrence and specific deterrence are very salient in this matter and in these offences. The cases referred to by the learned prosecutor indicated that in sentencing for this offence, general deterrence is very important in order to ensure that sentences assist in maintaining the integrity of the law of bankruptcy, without which there would be serious public disadvantage of various economic, commercial and social kinds. Thus, the sentence of the Court must send a signal to those who are under the state of bankruptcy, that they must be conscientious in their dealings with creditors. This applies both to commercial lenders and individuals, which is the case here.
49In your case, considerations of specific deterrence are also very salient given your prior offending that I have referred to. Considerations of denunciation are very important, given the amounts of money involved, and that no satisfactory explanation has been given as to what happened to the money. It appears that at least some of it was used for gambling, your counsel submitted that you were no longer involved in gambling.
50Your conduct as a three-time bankrupt when you must have known your obligations to disclose that status, was absolutely unacceptable and a grievous breach of trust against the complainant, Ms Stubbs. The complainant had placed her trust in you. Your conduct is to be utterly denounced.
51In sentencing you I must have regard to considerations of totality in this particular offending and also totality when having regard to the sentence that you are currently undergoing, and I have sought to do that.
52Could you please stand?
53On Charge 1 you are sentenced to two years and three months' imprisonment;
54On Charge 2 you are sentenced to two years' imprisonment.
55On Charge 3 you are sentenced to 15 months imprisonment.
56In sentencing you on Charge 1 I have taken into account the s.16BA notice. I am required to order when the sentences commence. I order that the sentence on Charge 1 commence this day. I order that the sentence on Charge 2 commence one year from this day. I order that the sentence on Charge 3 commence two years and six months from this day. This makes a total effective sentence of three years and nine months from this day.
57I order that you serve a minimum term of two years and six months from this day before being eligible for parole. There is no presentence detention to be declared. I declare that pursuant to s.6AAA of the Sentencing Act, had you not pleaded guilty I would have imposed a total effective sentence of four years and three months' imprisonment with a three-year minimum sentence.
58The Crown have sought a reparation order and I will make the order that has been sought for the sum of $1,796,241.58 to Ms Stubbs.
59I am required to explain the Commonwealth sentence to you under the Crimes Act and I am required to specify a date for the commencement of each sentence. I have sought by my sentence to specify dates such that from today, the total effective sentence you are required to serve is three years and nine months' imprisonment and I declare that you will be eligible for parole after two years and six months. So that date operates in parallel with the current sentence that you are undertaking, which I have taken into account considerations of totality.
60Are there any other matters, Madam Prosecutor?
61MS REID: There is nothing further, Your Honour.
62HIS HONOUR: I have made the sentences partially cumulative, partially concurrent in order to achieve that total effective sentence.
63I want to thank counsel for their assistance on the plea, Ms Poulter, Ms Reid and Mr Renton. I thank others involved in the case, the complainants who gave their evidence.
64Mr Mardirian can be taken back downstairs.
65COUNSEL: As Your Honour pleases.
66(At this stage the accused left the court.)
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