R v Misso
[2022] VSC 64
•18 February 2022
| IN THE SUPREME COURT OF VICTORIA | Not Restricted |
AT MELBOURNE
CRIMINAL DIVISION
S ECR 2020 0256
| THE QUEEN | Crown |
| v | |
| JAMES MISSO | Accused |
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JUDGE: | Taylor J |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 16 December 2021 |
DATE OF SENTENCE: | 18 February 2022 |
CASE MAY BE CITED AS: | R v Misso |
MEDIUM NEUTRAL CITATION: | [2022] VSC 64 |
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CRIMINAL LAW – Sentence – Plea of Guilty – Obtaining financial advantage by deception (8 charges) – Attempting to obtain financial advantage by deception (7 charges) – Obtaining property by deception (2 charges) - Possession of identification information – Possession of equipment capable of being used to make identification documentation – Recklessly dealing with proceeds of crime - Possession of an Australian travel document – Possession of a drug of dependence – Total quantum $418,497 – Relevant prior history – Need for denunciation and general deterrence – Need for specific deterrence and protection of the community – Applicability of R v Verdins (2007) 16 VR 269 – Applicability of Worboyes v The Queen [2021] VSCA 169 – Evidence of some remorse – Poor prospects for rehabilitation – Imposition of aggregate sentence of imprisonment of four years with a non-parole period of two years and nine months.
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APPEARANCES: | Counsel | Solicitors |
| For the Crown | Mr L Cameron | Office of Public Prosecutions |
| For the Accused | Mr R Nathwani | Haines & Polites Legal Practitioners |
HER HONOUR:
James Misso, you have pleaded guilty to 17 charges of attempted and completed deception offences, four associated charges of possession of identification equipment, possession of identification information, possession of an Australian travel document and recklessly dealing with proceeds of crime as well as one charge of possession of a drug of dependence.
Your offending was serious, subsisting over months and exhibiting a level of sophisticated planning, execution and scale. You obtained seven loans and one credit card by deception, with a total value of $144,247. You obtained two items of property by deception, with a total value of $55,050. You attempted to obtain a further nine loans and one credit card by deception, to a total value of $219,200. Twenty one individuals and six corporate entities have been victims of your behaviour.
Summary of offending
In general terms your modus operandi was to obtain, by means that remain unknown, the identification information of real people. You would then conduct an online credit check on the website ‘getcreditscore.com.au’ using that information. Where an individual had a suitable credit rating, you would make subtle online changes to their history. On many occasions you changed the addresses of individuals to a common physical address or a PO box location.
Then, in an individual’s name, you would open online accounts with various companies, such as utility and telecommunications companies, to obtain associated services and legitimise the changes you had made to their history. The creation of such accounts altered the credit profile of the individual and you would then lodge finance applications with banks and similar financial institutions in the name of that individual for credit cards and loans. You did so online or by telephone, but never in person.
When needed, you would use a card printer to manufacture driver licences and identification cards in the names of your victims, sometimes bearing your own image.
Although that describes your offending in general terms, it is necessary to describe your behaviour in some detail in order to capture its complexity.
Charge 1 – obtaining a financial advantage by deception
On 17 August 2017 you applied to the ANZ bank for a personal loan of $10,150. The application was made in your own name and using your correct date of birth. The email address you provided incorporated your own name. You gave a residential address in Lennox Street, Richmond and a phone number ending in 697, which was registered to an Anthony Price of an address in Queensland. You listed your employment as being full-time with Nik Zulik Co. of an address in Chifley Drive, Preston and provided the name of Nik Zulik as your loan referee, with a telephone number ending 182.
On 18 August 2017 you provided the ANZ bank with two payslips from Nik Zulik Co., dated 4 August and 11 August 2017, which stated that your gross pay for each of the preceding weeks was $1,440.
On 21 August 2017 you provided the ANZ bank with a further Nik Zulik Co. payslip dated 30 June 2017, which stated that your gross pay was $1,440 for the preceding week.
Nik Zulik had previously lived with you and in 2017 employed you on about five to seven occasions in his painting business. He had never employed you full-time nor provided you with payslips. He did not use the telephone number ending in 182 and did not have a business address in Preston.
On 28 August 2017, in response to a letter of offer, you telephoned the ANZ bank using a mobile telephone service ending in 816, which was registered to a Gretchen Tiangco of an address in Sydney. The following day you telephoned the bank to accept the loan and made further calls to it to discuss the account into which the loan funds were to be deposited. You did not, at that stage, have an ANZ bank account.
On 30 August 2017 you opened an account with the ANZ, using your correct name and date of birth, the residential and email addresses from the loan application and the telephone number ending in 816.
The loan was approved and $10,000 was deposited electronically into another ANZ account in the name of Di Fan Shi.
No repayment was ever made on this loan.
Charge 2 – obtaining a financial advantage by deception
On 15 October 2018 you opened two accounts with the ANZ bank in the name of Jack Andrew Douglas, one an access advantage account and the other an online saver account. You gave a date of birth of 8 March 1989, a home address in Edith Street, Heathmont and a postal address in Dorcas Street, South Melbourne.
On 22 October 2018 you applied for an ANZ personal loan in the sum of $13,000 in the name of Jack Douglas. You provided a different postal address, being in William Street, Melbourne.
Two days later you telephoned the ANZ bank using a telephone number ending in 447. That number was registered to a Jack Douglas of the Edith Street, Heathmont address. You identified yourself as Jack Douglas and enquired about the status of your loan application. You were asked to provide two recent payslips.
On 25 October 2018, you again telephoned the ANZ bank, this time using a mobile telephone service ending in 978. That number was registered to a Hilton Goodsir of an address in Queensland. You again identified yourself as Jack Douglas and again enquired about the status of your loan application. You were advised that a letter of offer was required before the loan funds could be deposited into your nominated account.
The next day you telephoned the ANZ bank once more, reverting to use of the 447 telephone number. Again you identified yourself as Jack Douglas. You accepted the loan offer. A further ANZ access advantage account was created. The accounts were verified electronically using copies of a Victorian driver licence and a Medicare card in the name of James Douglas. Later that day $13,000 was deposited into the ANZ access advantage account.
Between 28 and 30 October 2018 you disbursed $11,402.10 of those funds in five separate electronic transactions. In particular, on 30 October 2018 you made a payment in the sum of $5,884.10 to Unicard for the purchase of a card printer. You made that purchase in the name of Jack Douglas of William Street, Melbourne. You subsequently used that card printer to manufacture identification documents for use in your further offending.
No repayment was ever made on this loan.
The real Jack Douglas later told police that he was contacted by the ANZ bank in about October 2018 and advised that he had been approved for a personal loan in the sum of $13,000. He told police that he had not made the application.
Charge 3 – attempt to obtain a financial advantage by deception
On 12 November 2018 you applied online to the ANZ bank for a further personal loan in the sum of $18,250. You again used the name Jack Douglas and the 8 March 1989 date of birth, but gave a residential address in Cardigan Street, St Kilda East and a telephone number ending in 574 that was connected in the name of Jack Douglas. You stated that you were employed by Mercator Lighting Pty Ltd of Kyabram Street, Coolaroo and provided false payslips.
The format of the payslips was the same as other fraudulent payslips later used by you in offending using the identities of Christopher Gilsenan (charge 6), Jim Kostopoulos (charge 15) and Andrew Heslop (charge 16).
The application was identified as fraudulent by the ANZ bank and not approved.
Charge 4 – attempt to obtain a financial advantage by deception
On 17 January 2019 you applied online to the NAB for a personal loan in the sum of $12,000. The application was made in the name of Xavier Desmond Hurskin with a date of birth of 4 September 1990. A telephone number ending in 022 was provided as was a yahoo.com email address which incorporated the Hurskin name. Further, a Victorian driver licence ending in 848 in the Hurskin name, a residential address in Johnson Place, Endeavour Hills, a postal address of a PO Box in Docklands and details of employment with Landtrak were given.
The application was identified as potentially fraudulent by the NAB and was declined.
Charge 5 – attempt to obtain a financial advantage by deception
On 18 January you opened two ANZ bank accounts in the name of Xavier Desmond Hurskin, an advantage account and an online saver account. You provided the same 022 telephone number, Endeavour Hills residential address and Docklands PO Box number you associated with the Hurskin name to the NAB the day before. The accounts were verified electronically using the 848 Victorian driver licence in the Hurskin name also used the day before.
On 23 January 2019 you opened a further ANZ bank account in the Hurskin name using the same identifying details.
You subsequently made three attempts to obtain credit from the ANZ bank as Xavier Hurskin.
First, on 24 January 2019, you applied online for a personal loan in the sum of $16,150. You supplied the addresses, 022 telephone number and 848 driver licence number previously associated with Hurskin, but listed your employer as Anglo American.
The application did not meet ANZ lending criteria and was automatically declined.
Second, minutes later on the same day, you used the same information to apply for a personal loan in the sum of $10,150. Again this application did not meet ANZ lending criteria and was automatically declined.
Third, nearly four months later on 10 May 2019, you applied for an ANZ credit card with a credit limit of $50,000. You used many of the same Hurskin identifying details, but gave a telephone number ending in 955 and a postal address in Burwood Road, Hawthorn plus employment details with Grocon of Little Bourke Street, Melbourne.
The application was identified as potentially fraudulent by ANZ and declined.
On 6 June 2019 you attended at an ANZ ATM in Melbourne and, using an ANZ card in the name of Xavier Hurskin, withdrew $1,500.
Charge 6 – obtaining a financial advantage by deception
On 6 February 2019 you opened an online account with the ANZ bank in the name of Christopher Gilsenan. You gave a date of birth of 12 January 1989, a residential address in Memorial Drive, Narre Warren South and a yahoo.com email address incorporating the Gilsenan name together with the 022 telephone number and Docklands PO Box number that you had used with respect to the Hurskin identity.
On 8 February 2019 you applied for and were granted an ANZ personal loan in the sum of $13,150 in the Gilsenan name. You gave all the same identifying details used to open the bank account and further listed you employer as Kane Construction of an address in Church Street, Cremorne. You provided fraudulent payslips in support of the application.
On the same day you telephoned the ANZ bank to confirm acceptance of the loan and the amount of $13,150 was deposited into the account you had opened in the Gilsenan name two days prior.
You subsequently disbursed all the loan funds. On 9 February 2019 you withdrew $5,000. You withdrew a further $7,900 on 10 February 2019. The remaining $250 was spent in miscellaneous transactions.
No repayment was ever made on the loan.
Charge 7 - obtaining a financial advantage by deception
On 8 February 2019 you also used the Gilsenan identity in dealings with City Jeep, Ausloans Finance Group and Pepper Money.
Posing as Christopher Gilsenan, you telephoned the City Jeep dealership in Southbank and enquired about purchasing a vehicle. After discussion, you said that you would buy a 2018 Jeep Wrangler Sport 4x4 V6 and organise your own finance. You then made an online application for finance to purchase the vehicle through Ausloans Finance Group, trading as 1800Approved, in the Gilsenan name.
You provided to both Ausloans Finance Group and Pepper Money, the actual lender, a certified copy of a Victorian driver licence with a number ending in 150 in the name of Christopher Gilsenan but bearing your own image. The certification had been made two days earlier at a chemist in Carlton. You also provided the 12 January 1989 date of birth and 022 telephone number you had associated with the Gilsenan identity. You gave a yahoo.com email address incorporating the Gilsenan name, but different from the one given to the ANZ bank. Further, you provided photographs of other items in the Gilsenan name, namely a Visa debit card, a Victorian Recreational Fishing Licence and WorkSafe, Rail Industry Worker and Working with Children identification cards. The identification cards bore your image.
Later that afternoon the City Jeep salesperson used the 022 telephone number to speak to you. You indicated that your financier was about to send the paperwork and asked if you could pick up the vehicle that day, as you were going sailing on the weekend. The salesperson said that the vehicle could not be released until the funds were cleared, which would not likely occur until 11 February 2019.
You called the salesperson again the next day and were again told that you would need to wait until 11 February 2019.
Pepper Money approved a loan in the sum of $50,397 and paid this amount directly to City Jeep.
No repayment was ever made on this loan.
Charge 8 – obtaining property by deception
On 11 February 2019 you attended at the Southbank City Jeep dealership, completed relevant paperwork and collected the Jeep Wrangler Sport 4x4 V6 valued at $50,397 while falsely representing that you were Christopher Gilsenan.
Discovery of Gilsenan Offending
In February 2019 the real Christopher Gilsenan started receiving bills and notifications from a number of companies and organisations with respect to various services and accounts opened in his name. This caused him considerable distress, which I will detail when I consider the victim impact statement he has submitted.
On 5 February 2019 Mr Gilsenan received an email from Telstra advising that a telephone service, which he had not ordered, was about to be commenced. He subsequently contacted Telstra and arranged for its cancellation.
On 15 February 2019 Mr Gilsenan was notified by his father that mail had been received at the family home relating to a Suncorp motor vehicle insurance policy with respect to a Jeep Wrangler Sport 4x4 V6 manual vehicle indicating that the amount of $1,104.59 had been paid. He contacted Suncorp several times in order to cancel the policy.
On 18 February 2019 Mr Gilsenan obtained a copy of his credit report from Equifax. It recorded his address as somewhere he had never lived and employment as a carpenter with Kane Constructions, somewhere he had never worked. It also recorded seven transactions falsely conducted in his name between 26 January 2019 and 8 February 2019. These were the spending of $1,818 of Woolworths Mobile credit, the opening of accounts with Alinta Energy Retail, AGL Energy Sales and Telstra, the approval of a Skye credit card, the ANZ bank personal loan in the amount of $13,150 referable to charge 6 and the Pepper Money personal loan in the amount of $50,387 referrable to charge 7.
On the same day Mr Gilsenan was notified by his father that correspondence had been received at the family home from the Ausloans Finance Group.
Mr Gilsenan proceeded to make enquiries with the entities listed on his credit report to advise that the transactions were fraudulent. He also made a report to Victoria Police.
The Jeep Wrangler Sport vehicle you obtained from City Jeep on 11 February was found by police at Nationwide Towing, Collingwood. It had been towed from a clearway in the Melbourne CBD on 19 February 2019. Upon examination of the vehicle, various documents connected with you and the various identities assumed by you were found. These included ANZ documents in the Gilsenan name used to obtain the ANZ bank loan referrable to charge 6, Rail Industry cards bearing your image in the Gilsenan name as well as the name of Andrew Deconinck, a Victorian Game Licence in the name of Andrew Deconinck and CBA documents in the name of Steven Mark Wood of an address in Alma Road, St Kilda.
Charge 9 – attempt to obtain a financial advantage by deception
On 1 October 2018 you opened two accounts with the ANZ bank in the name of Anthony Brady, an access advantage account and an online saver account. You gave a date of birth of 21 May 1975, a residential address in Glenburn Road, Kinglake and a postal address in Tennyson St, St Kilda.
The requirements for online verification were not met, so the accounts were restricted pending appropriate identification being presented at an ANZ bank branch.
Some five months later, on 7 March 2019, you opened two further ANZ bank accounts in the name of Anthony Brady, again an access advantage account and an online saver account. You used the same date of birth and residential address as you had in October 2018, but used a Docklands PO Box number (different from the one used referrable to charges 4, 5 and 6) as the postal address. A Victorian driver licence and Medicare card in the name of Anthony Brady were recorded and verified online. The accounts were created.
Later that same day you telephoned the ANZ bank and, purporting to be Anthony Brady, requested access to the accounts via online banking.
Later still on 7 March 2019, after 9.00 pm at night, you submitted an application to the ANZ bank for a personal loan in the sum of $25,000 using the Brady name and giving a mobile telephone number ending in 002. That telephone number was registered to a Tom Tselios of an address in Dandenong North.
The application was identified by the ANZ bank as potentially fraudulent and declined.
On 2 April 2019 you used a telephone number ending in 248 to activate a Visa debit card issued with one of the accounts opened on 7 March 2019. That telephone number was registered to a Christine Almozara of an address in the Australian Capital Territory.
On 18 June 2019 the account was identified by the ANZ bank as being fraudulent and restricted.
During the forensic analysis of the identification card printer seized from your address in July 2019, printed card imprints in the name of Anthony Brady were identified.
Charge 10 – obtaining a financial advantage by deception
On 21 March 2019 you opened two ANZ bank accounts online in the name of Anthony Gerard Dzioba, an access advantage account and online saver account. You gave a date of birth of 16 February 1987, a residential address in Leonard Street, Ashwood and a postal address of a PO Box in Richmond East. You provided identification verification in the form of a Victorian driver licence and Medicare card in the Dzioba name.
The following day a Visa debit card linked to the access advantage account was sent to the Richmond East PO Box. That PO box was held in the name of Andrew Pearce.
That same day, minutes after 6.00 am, you telephoned the ANZ bank purporting to be Anthony Dzioba.
That evening you applied online to the ANZ bank for a personal loan in the sum of $25,000 in the Dzioba name. As part of that application you provided fraudulent payslips in that name.
On 27 March 2019 you made three separate telephone calls to the ANZ bank, in each of which you purported to be Anthony Dzioba, to discuss and accept the loan. You used a telephone number ending in 135, which was registered to a Trent Felter of an address in Narre Warren.
On 29 March 2019 the ANZ bank approved the loan and deposited the full sum into the access advantage account.
Between 29 March and 6 April 2019 you transferred $14,900 of the funds from that account. On 29 March 2019 you transferred $5,000 to the online saver account. On 1 April 2019 you transferred $500 from the account into an ANZ account in the name of David Gibson, $5,000 into the access advantage account in the Hurskin name and $500 into an ANZ bank account in the name of Ben Ward. On 3 April 2019 you transferred $3,900 into the access advantage account in the Hurskin name and $5,000 into an ANZ bank account in the name of Ben Ward. The $5,000 transferred on 20 March 2019 was later further transferred in two separate transactions, namely a transfer of $1,000 on 3 April 2019 into an ANZ access advantage account held in the name of Adam Gard and a transfer of $4,000 on 6 April 2019 into an access advantage account in the Hurskin name.
On 15 August 2019 the accounts were identified as being related to suspected identity theft and were restricted.
No repayment was ever made on the loan.
Charge 11 – obtaining property by deception
On 6 April 2019 you, purporting to be Xavier Hurskin, purchased a black 2009 Suzuki VL800 motorcycle from Michael Dabrowski for the sum of $4,600. At the time of the purchase you showed Mr Dabrowski a NSW driver licence in the name of Xavier Hurskin. The template for this false driver licence was later located by police on the identification card printer seized from your address.
In June 2019 the real Xavier Hurskin, who was resident in the USA, was notified by his mother that he had received a Linkt bill for travel on the Citylink tollway in April of that year. Mr Hurskin believed it to be an error, but did not pursue the issue.
On 24 June 2019, Mr Hurskin returned to Australia, viewed the Linkt bill and saw that it was in relation to a motorbike, bearing the same number plate as that purchased by you from Mr Dabrowski on 6 April. Mr Hurskin’s mother contacted police, who confirmed that the motorbike was registered in Mr Hurskin’s name to an address in Hawthorn.
In July 2019 when police executed a search warrant at your premises, the black Suzuki VL800 motorbike was parked next to the property and the paperwork associated with its purchase was located inside the property.
Charge 12 – attempt to obtain a financial advantage by deception
On 8 April 2019 you opened three ANZ bank accounts in the name of Glen Broad, an access advantage account, an online saver account and a progress saver account. You provided a date of birth of 19 November 1982, a home address of The Midway, Lilydale, a postal address of a PO Box in Windsor, a gmail.com email address incorporating the Broad name and a telephone number ending in 912. That phone number was registered to a Timothy Ramea of Hampton Park. You verified the accounts using a copy of a Victorian driver licence and Medicare card in the Broad name.
On 8 April 2019 a Visa debit card linked to the ANZ bank access advantage account was sent to the Windsor PO Box, but was never activated.
On 17 April 2019 you used the 912 telephone number to call the ANZ bank and, purporting to be Glen Broad, activated bank services associated with the Broad accounts.
On 22 April 2019 you transferred $40 from a bank account in the Hurskin name into the Broad access advantage account. On 23 April you made two separate transfers from the Broad access advantage account, one of $20 to the Broad online saver account and one of $10 to the progress saver account in the Broad name.
You then made two attempts to obtain a personal loan in the sum of $25,000 from the ANZ bank using the Broad name.
On 23 April 2019 you used the 912 telephone number to contact the ANZ bank. Giving the same addresses, driver licence and telephone number as you did when the accounts were opened on 8 April, you further stated that you were employed by Multiplex.
The application was identified by the ANZ bank as potentially fraudulent and declined.
The next day you used the same details to make the application online. That application was also identified as potentially fraudulent and declined.
On 23 May 2019 you transferred $10 from the Broad ANZ access advantage account to the Broad progress saver account.
On 18 June 2019 the ANZ bank identified the Broad accounts as being related to suspected identity theft and restricted them.
Charge 13 – attempt to obtain financial advantage by deception
On 14 May 2019 you opened three ANZ bank accounts online in the name of Richard Alexander, an access advantage account, an online saver account and a progress saver account. You gave a date of birth of 18 March 1983, a residential address in Viewside Way, Hampton Park, a postal address of the same Windsor PO Box used with respect to charge 12, a yahoo.com email address incorporating most of the letters in the name ‘Richard Alexander’, and a telephone number ending in 964. That number was registered to a Peter Lundgren of Warrandyte.
On the same day, using a different telephone number ending in 759, you telephoned the ANZ bank purporting to be Richard Alexander and enquired about obtaining a loan.
The following day, using the Alexander name, you applied to the ANZ bank for a personal loan in the sum of $24,650. The bank identified the application as potentially fraudulent and it was declined.
Subsequent forensic analysis of the identification card printer seized from your home revealed printed card imprints for identification documents in the name of Richard Alexander but bearing your image.
Charge 14 – obtaining a financial advantage by deception
On 15 February 2019 you opened online an ANZ access advantage account in the name of Adam Kirwan Gard. You gave a date of birth of 14 October 1974, a residential address in Taggerty Crescent, Narre Warren South and a postal address of the Docklands PO Box also used with respect to charges 4, 5 and 6.
On 14 May 2019 you opened a second ANZ bank account in the Gard name, namely an online saver account, providing the same details as you had on 15 February 2019.
Both of these accounts were restricted by the ANZ bank because the verification requirements had not been met.
On 17 May 2019 you applied online to the Westpac bank for a credit card in the name of Adam Gard. You gave the October 1974 date of birth, a residential address in Lonsdale Street, Dandenong, a yahoo.com email address incorporating part of the Gard name and two telephone numbers, one ending in 221 and the other ending in 350. The latter was registered to an Adam Gard of Taggerty Crescent, Narre Warren South.
The application was approved and the Westpac bank issued the credit card with a credit limit of $6,700. That credit card was later found at your premises during the execution of a search warrant. The credit limit had been completely expended. No repayments had been made.
Forensic analysis of the identification card printer seized from your premises revealed four printed card imprints in the Gard name, all bearing your image.
On 28 June 2019 you opened online two further ANZ bank accounts in the Gard name, an access advantage account and an online saver account. You again used the October 1974 date of birth and Lonsdale Street, Dandenong residential address. You verified the Gard identity using a Victorian driver licence and Medicare card in the Gard name.
On 1 July 2019 a Visa debit card in the name of Adam Kirwan Gard was linked to the ANZ online saver account and sent to the Dandenong address. It was never activated.
On 9 July 2019 all ANZ accounts in the Gard name were closed by the bank due to concerns about identity theft.
Charge 15 – obtaining a financial advantage by deception
On 31 May 2019 you opened two ANZ bank accounts in the name of Jim Kostopoulos, an access advantage account and an online saver account. You gave a date of birth of 26 November 1981, a residential address in Vincent Street, Glen Iris and a postal address in Rotherwood Street, Richmond. You verified the Kostopoulos identity using a Victorian driver licence and Medicare card in that name.
On the same day, a Visa debit card was linked to the access advantage account and sent to the Richmond address. It was never activated.
On 3 June 2019,[1] you applied online to the ANZ bank for a personal loan in the sum of $13,000 in the Kostopoulos name. You again provided the same identification details. You also stated that you were employed by Aqua Pro Plumbing & Excavations of an address in Mooroolbark. You provided two payslips purporting to have been issued by that business.
[1]The Agreed Summary of Prosecution Opening filed on 27 October 2021 suggests that the accused opened another ANZ bank account in the Kostopoulos name on 3 June 2019. However, there is no reference to the opening of a third ANZ account in the Kostopoulos name in the Depositions, save for a personal loan account associated with the personal loan application made by the accused in that name on 3 June 2019.
Later that day you used the 500 telephone number to call the ANZ bank to discuss the accounts. You made another, similar call the next day using a telephone number ending in 756. Later on 4 June 2019 you used the 500 telephone number to call the ANZ bank for a third time and, purporting to be Jim Kostopoulos, accepted the loan.
The loan was approved and the funds deposited into the ANZ bank accounts opened in the Kostopoulos name.
Between 4 and 11 June 2019 you transferred the total loan amount of $13,000 into an ANZ account you had previously opened in the Hurskin name.
No repayments were ever made in relation to the loan.
Charge 16 – obtaining a financial advantage by deception
On 5 June 2019 you opened two ANZ bank accounts in the name of Andrew James Heslop, an access advantage account and an online saver account. You gave a date of birth of 1 March 1985 and a residential address in East Esplanade Street, St Albans. You verified the Heslop identity using a Victorian driver licence and Medicare card in that name.
The same day, a Visa debit card linked to the ANZ access advantage account was sent to the St Albans address.
On 11 June 2019 the Visa debit card was activated by telephone using a number ending in 235. This number was registered to a Tony Fakhoury of Argyle Street, Fawkner and it was written on a whiteboard found at your residence during the execution of the search warrant on 3 July.
Also on 11 June 2019 you telephoned the ANZ bank using the 235 number and, purporting to be Andrew Heslop, registered for internet banking.
Later that day you submitted an online application to the ANZ bank for a personal loan in the sum of $13,000 in the Heslop name. You submitted fraudulent payslips to support that application.
The ANZ bank approved the loan and you, still purporting to be Andrew Heslop, used a telephone number ending in 091 to call the bank and accept the loan. That 091 number was also written on the whiteboard later found in your home. It was registered to an Edgar Dimech of Narre Warren South.
The ANZ bank deposited $13,000 into the Heslop access advantage account you had opened on 5 June 2019.
On 12 June 2019, you made three transfers from the Heslop access advantage account totalling $10,000. You transferred $1,000 and later, a further $1,300 into an ANZ account in the name of Gard and $7,700 into an ANZ account in the Hurskin name.
Charge 17 – attempt to obtain financial advantage by deception
On 28 June 2019 you opened two ANZ bank accounts in the name of Nathan Wheatley, an access advantage account and an online saver account. You gave a date of birth of 22 August 1991, a residential address in Ribbon Street, Frankston North, a postal address in McKay Street, Richmond and a phone number ending in 212. That number was registered to a Sasa Rajcevic of an address in Eumemmerring. Upon your arrest on 3 July 2019 you were found in possession of a phone fitted with the SIM card for the 212 telephone number registered to Rajcevic. You verified the Wheatley identity using a Victorian driver licence and Medicare card in that name.
On 1 July 2019 a Visa debit card in the Wheatley name was linked to the account and posted to McKay Street, Richmond. It was never activated.
Also on 1 July 2019 you applied to the ANZ for a personal loan in the sum of $13,000 in the Wheatley name. Later that same day, the ANZ bank contacted you on the 212 telephone number and asked you to provide payslips and bank statements to support the loan application. You subsequently supplied payslips by email.
On 9 July the loan application was declined and the accounts closed on suspicion of identity fraud.
Charge 18 – possession of identification information
On 3 July 2019 you were arrested by police in Swan Street, Richmond. You denied your own identity. You were in possession of a Victorian driver licence, Medicare card and Victorian Recreational Fishing Licence in the name of Tony Fakhoury. The driver licence bore your image.
Charge 19 – possession of equipment capable of being used to make identification documentation
Upon the execution of a search warrant at your address on 3 July 2019, police located an area of your bedroom apparently dedicated to the creation and monitoring of your false identities and deceptive activities. Various tools, equipment and other items used to make false documents were located. These included: a whiteboard containing the names, emails and phone numbers of the Andy Pearce, Anthony Rosado, Ben Smith, Greg Clinton Bush and Adam Gard identities; two Hewlett Packard laptops; a Microsoft Surface laptop/tablet; a metal card cutter; a quantity of white plastic cards capable of being printed upon; and a card printer and associated documentation.
Police later confirmed that the card printer was that purchased from Unicard on 30 October 2018 in the name of Jack Douglas and using the 447 telephone number used to obtain the $13,000 loan in the same name (charge 2).
Analysis of the card ribbon from the card printer revealed dozens of images of previously printed false documents in a significant number of different names. The documents printed included driver licences, Medicare cards and WorkSafe cards. Many of these documents contained the correct name, date of birth, address and other personal information of real people, most often with your own image attached.
Charge 20 – improper use or possession of an Australian travel document
In the same area of your bedroom police also located an Australian passport in the name of Brigid Guille. Subsequent enquiries determined that Ms Guille had lost the passport in Chapel Street, Prahran in early 2019.
Charge 21 – recklessly deal with proceeds of crime
At the time of your arrest, you were found in possession of $1,242.20 in cash, believed to be the proceeds of crime. Further, the following items, also believed to be the proceeds of crime, were located in your premises.
(a) Commonwealth bank documents in the name of Nathan Wheatley of an address in McKay Street, Richmond.
(b) Receipts for accommodation at The Blackman Hotel in the name of Adam Gard.
(c) Securities transfer documents in the name of Pierre Talleu.
(d) RACV documents in the name of Tim Clarkson.
(e) VicRoads documents in the name of Johnny Diffey.
(f) A Colombian passport in the name of Xiomara Rodriguez.[2]
[2]Subsequent enquiries by police in relation to the Colombian passport revealed that it had been stolen during a burglary at an address in St Kilda. There is no suggestion that the accused was involved in that offence.
(g) A Victorian learners permit and Medicare card in the name of Christopher Phillips.
(h) A Tasmanian driver licence in the name of Shane Farmer.
(i) Fuel cards from Shell, PB and Caltex associated with Elders Rural.
(j) A Bet Easy MasterCard and Crown Rewards card in the name of Drage Dodevski.
(k) Documentation relating to the black Suzuki motorcycle bearing Victorian registration HT402.
It remains unknown how you came into possession of most of these items.
Charge 22 – possession of a drug of dependence
During the execution of the search warrant police located a small snap lock bag containing an off-white coloured powder. This was later identified to be Ketamine, weighing 0.2 grams.
Record of Interview
During a record of interview conducted on 3 July 2019 you were asked to provide the passwords to your mobile phone and laptop computers. You told police that you were unable to remember them.
Victim Impact
Mr Christopher Gilsenan has provided a victim impact statement. It is eloquent as to the harm he has suffered. He felt ongoing helplessness against what seemed to be a faceless crime. It took him eight months to untangle the debts that had been obtained in his name, each day not knowing if the situation was going to worsen. The strain affected his work and his personal relationships. He still has no idea how his personal details were originally obtained and is now extremely nervous of providing his personal details to anyone, fearful of a similar situation in the future.
Personal Background
It is necessary to say something of your personal circumstances.
You are currently 38 years of age. You were aged between 34 and 36 years at the time of your offending. You are the middle of three children and enjoyed a stable early childhood. The relationship with your father is difficult and you consider him to be a disciplinarian. Nonetheless your father is supportive of you and you retain close relationships with your mother and siblings. I have received a comprehensive letter authored by both of your parents, expressing their unwavering support for you and detailing the difficulties you have experienced.
It is not necessary to here rehearse all of that material. The following summary suffices.
At the age of 13 years, following a period of uncooperative behaviour at school, you self-harmed and were found by your family having a serious panic attack. You were admitted under a psychiatrist to the Children’s Hospital and then transferred to the Albert Road Clinic under the care of Dr Ann Woon. You never returned to school.
Dr Woon referred you to a psychologist, Katie Wood, for assessment. That assessment is before the Court. Ms Wood noted that you had experienced increasing difficulties manifesting in depressed mood, suicidal thoughts and angry outbursts. You reported anger towards your father and authority figures. A personality assessment indicated serious psychological distress characterised by self-alienation, pessimism and ‘acting out’ behaviour. Ms Wood found evidence of disturbed thought processes suggesting, in combination with other factors, that you were vulnerable to losing touch with reality. In this regard, regular drug use and increased levels of stress were identified as risk factors.
At the age of 14 years the Department of Human Services became involved in your life and then followed a series of accommodation orders made by the Children’s Court, pursuant to which you resided in a number of different institutions. In turn that led to you associating with negative peers and you began to abuse drugs, particularly marijuana and heroin. Still aged 14 years you suffered a drug overdose.
You battled drug addiction over the next years, but managed intermittent periods of stable employment. You also suffered depression and anxiety, receiving medical treatment for it. In about 2000 or 2001 you were diagnosed with Hepatitis C, which was presumed to have been contracted in the course of your intravenous drug use.
From September 2009 to July 2010 you were treated by Dr Penny Brabin, a consultant psychologist. Dr Brabin’s report, dated July 2011, is before the Court. It details that you had, when younger, developed Oppositional Conduct Disorder and, in May 2010, had been diagnosed with Major Depressive Disorder and Opioid Intoxication Delirium. You had presented with an acute depressive episode caused by your sense of helplessness resultant from your inability to conquer your addiction and your guilt at the distress this caused your family.
Between June and October 2010 you were a patient at the Department of Addiction Medicine at St Vincent’s Hospital. You were treated for drug dependency and associated depression and anxiety. In November of that year you were admitted to the Raymond Hader Clinic for residential rehabilitation.
In 2011 you commenced use of methylamphetamine, apparently to alleviate your depression. Addiction soon followed. Despite further treatment, you have not been able to conquer your drug dependency.
You are the father of an eight year old child, whom you see regularly and in whose life you play an active role. Since your remand in October 2021 you have not been able to speak to her by telephone due to complications arising in custody from a Family Violence Intervention Order (‘FVIO’) to which you are the respondent and your daughter’s mother the affected family member.
Recently, during the seven month period in which you had absconded from Victoria, you formed a relationship with a woman in New South Wales. She gave birth to your son on 12 December 2021. Your partner remains supportive of you and she and her son are supported by your family.
The Court has received a report dated December 2020 from Pamela Matthews, a forensic psychologist. Ms Matthews is of the opinion that your difficulties with authority and possible conduct or oppositional defiant disorder has alienated you from many people. Your interrelated major diagnoses are substance use disorder, borderline personality disorder and depressive symptoms. Ms Matthews notes the developmental connection between your mental health, behavioural issues, family difficulties and illicit drug use. That drug use has resulted in your failure to meet major obligations, such as work. Your persistent or recurring psychological problems are exacerbated by your continued stimulant drug use. Ms Matthews states that your substance use disorder plays the greatest role in your offending, but the features of your borderline personality disorder and symptoms of your persistent depressive disorder also contribute. The interplay between these factors is complex and circular rather than linear.
The Court has also received an addendum report dated December 2021 from Ms Matthews. Her views as to your psychological functioning and the nexus between that functioning and your offending remain unchanged. The purpose of the addendum report is to explain your flight from Victoria when you were bailed to attend this Court on 1 February 2021 for the hearing of your plea. Ms Matthews states that paranoid delusions are a ‘potential explanation’ for your behaviour. She states that she observed no symptoms of paranoia or delusion when she interviewed you in December 2020 but that she ‘cannot exclude the possibility that [you were] guarded at the time in that [you] trusted no one’. That issue was not pressed on your plea.
As regards your physical health, there is some information before me as to abdominal pain you have experienced as a result of a hernia operation in 2020, although no medical evidence was tendered.
Prior offending
You have a relevant criminal history.
You had findings of guilt made with respect to (largely) drug offences between 1998 and 2001. Then followed a period of some years in which you did not offend. This seems to correlate with the time when, although not drug free, you managed to sustain both study and employment. In 2011 you commenced taking methylamphetamine. You have convictions for drug offences and bail offences as well as property and identity offences dating from 2012. In June 2017, only two months prior to the commencement of the instant offending, you received a 12 month community corrections order (‘CCO’) with conditions of treatment for drug dependency and mental health attached. In 2018 you served a period of imprisonment for a large number of relevant offences.
Consideration
Your offending was persistent and complex. It was done, apparently, to obtain money to feed your drug addiction. I note that it also furnished you with a car and a motorbike.
The first offence, which is the only one to have been completed using your own name, occurred while you were subject to a CCO. Your offending then paused while you served a 120 day sentence of imprisonment for like offending. Upon your release, you recommenced your criminal behaviour. By 28 October 2018 you had obtained $13,000 from the ANZ Bank. You used just short of half of that money to purchase the Unicard card printer. That was done to better facilitate your ongoing dishonest activities. Thereafter the frequency of your criminal activity increased. The interconnected web of stolen identities and associated email addresses, post office boxes, residential addresses, falsely registered telephone numbers and fraudulent payslips was intricate. You were able to keep track of your identities and occasionally re-used an identity months after you had first done so.
It was argued on your behalf that your offending was bound to be discovered. That might be so, but it does not alter the fact that it was sophisticated. Nor was your behaviour bound to be discovered quickly. Further, you conducted your deceptive behaviour online, making discovery less likely. In this regard I note that your offending did not cease upon the report to police by Mr Gilsenan in February 2019 nor upon the finding of the fraudulent cards bearing your image in the Jeep Wrangler Sport on 5 March 2019, but only upon your arrest on 3 July 2019.
I take note of the maximum penalties of each of the offences to which you have pleaded guilty. The duration, scale, quantum and victim impact of your offences combine to make it serious. I accept the prosecution characterisation that your offending falls towards the lower end of the middle range of gravity.
Online financial transactions have become the standard way of monetary interaction for both individuals and institutions. The assumption and manipulation of personal information for the purposes of deceptive online behaviour undermines the utility and safety of such dealings. Identity theft and its use in financial deception must be denounced. It follows that general deterrence plays a significant role in the sentence you will receive. And, given your past criminal history, specific deterrence and protection of the community are relevant considerations.
I consider your moral culpability for your offending to be significant. You alone created and maintained a sophisticated enterprise of repeated, blatant dishonesty. The monies you obtained were solely for your own benefit.
That said I moderate to some extent considerations of both deterrence and moral culpability as a result of your impairment of mental functioning.[3] I am satisfied on the evidence of Ms Matthews that there is a causal connection between that impairment and your offending in that your disorders, in her words, ‘played a role’.
[3]R v Verdins (2007) 16 VR 269.
Given the absence of evidence as to treatment or resolution of the abdominal pain you have suffered as a result of your hernia, the argument that your physical condition will cause imprisonment to weigh more heavily upon you than someone without that ailment was not pressed. Similarly, no evidence was submitted with respect to the likely effect of imprisonment upon your mental health. I do note that you have long been subject to the diagnosis of a persistent depressive disorder.
I take into account your early plea of guilty. It has significant utilitarian benefit in sparing the need for a complicated trial with voluminous evidence. Further, it was made during the COVID-19 pandemic, a factor which is deserving of additional weight.[4]
[4]Worboyes v The Queen [2021] VSCA 169, [39].
I also consider your plea to be indicative of some remorse. Your expressions of contrition are less than full and I consider your flight from the jurisdiction in February 2021 to dampen the finding that you are willing to face the consequences of your actions. That said, you did return to Victoria. It was put on your behalf that your flight was more connected with your then drug use than any issue of remorse or contrition. I accept that submission only partially.
Your prospects for rehabilitation are poor. Your acquisitive offending is inextricably linked to your drug addiction, an addiction that has endured since you were 14 years of age, despite repeated treatments and rehabilitation attempts and the supportive bedrock of your family. I do note that you enjoy some positive influences. You are using your time in custody productively and may be able to undertake study towards a degree. Your relationship with your daughter is central to your life. You have a new baby and partner. Your parents and siblings support you. But, given your history, remaining drug free in the community will be extremely difficult for you.
I have had regard to current sentencing practices.[5] I have also considered the principles of proportionality, totality and parsimony.
[5]I have considered the ‘Sentencing Snapshot’ published by the Sentencing Advisory Council for the offences of obtaining property by deception (No. 253, April 2021) and obtaining a financial advantage by deception (No. 254, April 2021). Counsel also referred to Friel v The Queen [2018] VSCA 48 and Pun v The Queen [2017] VSCA 219.
As I intend to impose an aggregate sentence of imprisonment[6] for all offences except charges 20 and 22, I must explain the reasons for so doing and the effect of the aggregate sentence.[7]
[6]Sentencing Act 1991 (‘Act’), s 9(1). The parties agree that none of the s 9(1A) bars to the imposition of an aggregate sentence of imprisonment are applicable.
[7]Act, s 9(3).
My primary reason is that your criminal conduct is not only a series of offences of a similar character, but is appropriately characterised as a single ongoing enterprise. As such, an aggregate term best expresses the synthesis of the competing sentencing principles I have identified. Further such an approach obviates the need for a complicated and somewhat artificial exercise in the imposition of 20 individual terms of imprisonment for both attempted and completed offences, three of which are rolled-up charges, and concomitant orders for cumulation and concurrency.
That means that for all of the property offences, except charge 20, you will receive a single term of imprisonment.
I intend to impose a fine for each of the drug offence and the Commonwealth offence of improper possession of an Australian travel document.[8]
[8]There being no sentence of imprisonment with respect to the single Commonwealth offence, s 19 of the Crimes Act 1914 (Cth) and the observations as to the approach to joint State/Commonwealth sentencing in DPP v Swingler [2017] VSCA 305 are inapplicable.
Sentence
Mr Misso, would you please stand.
Balancing, as best I am able, the competing considerations laid down in the Act and having regard to the matters I have just discussed, for the offences of obtaining a financial advantage by deception (charges 1, 2, 6, 7, 10, 14, 15 and 16), attempting to obtain a financial advantage by deception (charges 3, 4, 5, 9, 12, 13 and 17), obtaining property by deception (charges 8 and 11), possession of identification information (charge 18), possession of equipment capable of being used to make identification documentation (charge 19) and recklessly dealing with proceeds of crime (charge 21) I sentence you to an aggregate term of imprisonment of four years. You must serve a minimum of two years and nine months before being eligible for parole.
I declare that you have already served 136 days of that sentence by way of pre-sentence detention (not including today).
I am required by s 6AAA of the Act to indicate what sentence I would have imposed but for your plea of guilty. As such, I declare that I would have imposed a total effective sentence of five years and six months with a non-parole period of four years.
For the offence of possession of a drug of dependence (charge 22) I fine you $500.
For the offence of improper use or possession of an Australian travel document (charge 20) I fine you $500.
Ancillary orders
I make the disposal and forfeiture orders in the terms sought by the Crown.
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