R v Riganias

[2010] NSWDC 116

CITATION:	R v RIGANIAS [2010] NSWDC 116
HEARING DATE(S):	17 August 2009 20 November 2009 26 February 2010 14 May 2010 25 June 2010
JUDGMENT DATE:	25 June 2010
JURISDICTION:	District Court Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	The offender is sentenced to imprisonment with an effective non-parole period of 4½ years and a head sentence of 6 years.
CATCHWORDS:	CRIMINAL LAW - Sentence - Obtain benefit by deception - Defrauding family and friends - Effects on victims to be taken into account
LEGISLATION CITED:	Crimes Act 1900
PARTIES:	The Crown Constantios Riganias
FILE NUMBER(S):	DC 2008/00020762
COUNSEL:	Mr K McKay Mr M Gelbert - Offender
SOLICITORS:	The Director of Public Prosecutions Legal Aid Commission - Offender

SENTENCE

1 Constantinos Riganias pleaded guilty to nine counts of obtaining a benefit by deception, offences under s 178BA of the Crimes Act. The maximum penalty for each offence is five years imprisonment. These pleas of guilty came on the fourth day of the offender’s trial, but only after I had made a ruling on evidence and only after impressive evidence from a forensic accountant demonstrated what the offender already knew – that he had engaged in the long term systematic deceit of his family and friends for his own benefit.

2 Those pleas came some considerable time ago. The sentencing of the offender has been delayed many months. That is not due to any delay on the part of the prosecution nor the court. It was because the accused wanted to adduce evidence of his mother’s medical condition and what were said to be the benefits which she would obtain if the accused were able to care for her. Such evidence was not produced with any great speed, and multiple adjournments were granted at the accused’s request. As it turns out the evidence, although very sad, was not of the significance that Mr Gelbert expected that it might be. Of course the offender is not to be punished for those delays, I refer to them merely to indicate why it is that he is today being sentenced for matters to which he pleaded guilty many months ago.

3 With those preliminary remarks out of the way let me turn to the offences themselves. The offender was a real estate agent and appeared, to others, to be successful and knowledgeable. The offender knew that his family and friends trusted him not only because of his relationship with them, but because of that apparent success.

4 In the middle of 2000, one of the offender’s cousins (but who considered the offender more of a brother), sold an investment property he owned. The offender approached him and suggested that he invest the proceeds of the sale in 2 adjoining properties at Hammondville. The offender told his cousin, Dimitrios Saitis a series of bald-faced lies. In particular he said that both properties were for sale by a mortgagee in possession.

5 He said the same thing to another of his victims, Peter Androutsos, who was Mr Saitis’ father in law. The proposition that the offender put to the two men was that the three of them would buy the adjoining properties at Hammondville and then build up to 21 villas on the site which would be sold for a significant profit. As a result, both Mr Saitis and Mr Peter Androutsos paid substantial sums of money to the offender on the basis that they would be used to invest in the proposed development of the Hammondville properties.

6 However this was a complete scam on behalf of the offender. The properties were never offered for sale by a mortgagee in possession and the offender never even tried to buy them.

7 Having paid his money over Mr Saitis waited. He enquired occasionally as to what was happening, with the offender telling him that negotiations were still taking place.

8 Later in 2000, around December, the offender spoke to Mr Saitis and Mr Peter Androutsos about a new opportunity for investment. He told them that there was a development of units at Pyrmont (which was known as “Bullecourt”) by Australand and that they could purchase units off the plan, selling the units before settlement date. Although there really was a Bullecourt development at Pyrmont, the offender never invested in that development any of the monies given to him by anyone.

9 After that meeting, and up to 14 October 2003 Mr Peter Androutsos made a number of payments to the offender at his request. On each occasion the offender told Mr Peter Androutsos that the monies would be used for the purchase of residential property in the Bullecourt development. In that way the offender regularly obtained from Mr Peter Androutsos significant sums of money, eventually totalling $324,850. Mr Saitis also made regular payments at the request of the offender which the latter told him were to be used for the Bullecourt property development. Mr Saitis eventually paid $100,000.

10 The offender was so successful in duping Peter Androutsos that he spoke to his sons John and Terry Androutsos about investing in the same property development scheme. Both John and Terry Androutsos spoke to the offender, as a result of which they too paid over monies on the understanding they would be invested in the development (of course what the offender told them was a pack of lies). In October 2002 John Androutsos gave the offender $10,000. Some time later in April 2005 Mr John Androutsos was told by the offender that he could secure a bigger unit in the development, and thus a bigger profit, if he invested more money. As a result he did give more money to the offender. Those two payments made by John Androutsos totalled $21,300. Terry Androutsos only made a single payment to the offender of $10,000 in October 2002.

11 At the same time he was dealing dishonestly with his cousin and Peter, John and Terry Androutsos, the offender was also dealing dishonestly with others. In March 2002 the offender discussed a property development involving townhouses with George Siambis as a result of which Mr Siambis gave $50,000 to invest in that development. After a number of months the offender told Mr Siambis that that development was not proceeding but he had a better proposal. He then introduced Mr Siambis to the same idea he had offered to Mr Saitis and the Androutsoses. He told Mr Siambis the same lies, telling him that he would invest the previous $50,000 paid by Mr Siambis in the Bullecourt development and that if Mr Siambis paid more money he could obtain more units. Mr Siambis mentioned this proposal to another man by the name of Nick Genaris. Some time later Mr Genaris got a call from the offender who explained the scheme, dishonestly of course, to him. It therefore came about that there was a meeting at Mr Genaris’ home which was attended not only by Mr Genaris but also Marc Genaris, George Siambis and Malissa Kokkotas. The offender addressed the meeting and explained that his proposal was that he would collect money and go in as a single buyer in the Bullecourt property development. He explained that as a single buyer he could obtain the units for $44,000 per unit which would be sold before settlement with a potential profit of between $60,000 and $80,000 per unit. He reassured them that their money would be safe by telling them that the money would be kept in a trust account and it was backed by an insurance policy. It is worth interrupting the narration of facts at this stage to point out that of course the offender was deceiving the people he spoke to in a calculating way. No money was ever put into the Bullecourt property development, all of it instead being used by the offender for his own purposes. This was clearly intended by the offender at the time he spoke at the meeting.

12 After the meeting Nick Genaris told the offender that he was interested in two units. He went to his bank, met the offender there and gave him $8,800 in cash which he had withdrawn from his bank account. Later on the offender was able to persuade Nick Genaris to draw down his existing mortgage by $70,000. This Nick Genaris did in August 2002 giving the whole of the drawn down amount to the offender on the basis that it would be used by him to secure two units in the development. Thus in total Nick Genaris provided the offender with $78,000 to be invested in the development.

13 After the meeting at Nick Geraris’ home, Marc Genaris also decided to invest in the fictitious scheme. He told the offender that he would put a deposit on one unit. In order to get the money he had to obtain a substantial part of it from his parents. The offender picked up Marc Genaris from where he was working and drove him to his bank. At his request Marc Genaris handed him $4,400 in cash and a bank cheque payable to the offender’s company for $39,600. Thus in total Marc Genaris made payments totalling $44,000 to the offender on the understanding that the money would be used to secure a deposit on a unit in the Bullecourt development.

14 Mr Siambis made a further payment of $36,000 in addition to the $50,000 I have previously mentioned. Later still the offender discussed with Mr Siambis the prospect of him increasing his interest and so in late 2003 he provided to the offender a further $18,000. In total Mr Siambis provided the offender with $104,000 to be invested in the Bullecourt property development.

15 I mentioned before that Malissa Kokkotas was at the meeting. She too decided to invest having been told by the offender that he would invest the money as he told her he would. In September 2002 she deposited a bank cheque into the offender’s company account for $44,000. A couple of months later she discussed with the offender the prospect of her obtaining a second unit and so she paid a further $18,000 to him. Each of these payments was made after the offender deceived Ms Kokkotas by telling her that the development was going well.

16 Whether or not the development was going well was completely immaterial because none of Ms Kokkotas’ money had ever been invested in it. It was, as with all other monies received by the offender from his family and friends simply used by him for his own purposes.

17 In December 2002 she made further payments to the offender in order to secure a total of three units in the development. She eventually paid a total of $102,000 to the offender to be invested in the residential property development.

18 The final victim, Ms Effie Ioakimaris, was not at the meeting but she became aware of the investment proposal after discussions with the offender’s wife. Shortly after that she got a call from the offender who explained the scheme to her. She decided that she would pay a 10% deposit on a unit after he told her that there were potential profits to her of between $50,000 and $60,000. In October 2002 she gave a cheque to the offender in the amount of $44,000.

19 Of course having invested their money, the various victims of the offender’s wrongdoing made requests of him from time to time for information as to what was happening with the investment. The offender stalled them, telling them there had been delays in the completion of the development, and occasionally suggested to some people that they could have their money back, but he always maintained that their investments were going ahead.

20 As late as 2005 Mr Saitis recorded telephone calls with the offender who maintained that he was still trying to negotiate a deal in relation to the units.

21 The Bullecourt development was completed by Australand in December 2004, but not a single cent of any monies received by the offender on the basis that he would invest in that development was ever in fact invested as he said. Instead the money was used to pay his own debts, so that he could gamble, so he could meet some expenses involved with his own poor share investments, and so he could fund his lifestyle.

22 One of the reasons that the offender was able to persuade so many people to hand over money to him was because of his apparent success. There is evidence that the offender and his wife were perceived as having quite a luxurious lifestyle with the victims of these offences saying that they observed overseas travel, investment properties, private schooling and up to date fashion and housing.

23 Often when looking at the effects of crime upon victims we tend to focus on crimes of violence. However the consequences of offences of dishonesty such as these are often lasting and substantial. So it has proved in the present case. Mr Saitis feels particularly aggrieved having trusted the offender and looked up to him like a brother. Mr Saitis even went to the extent of delaying starting a family because he wanted to be financially secure and own a property in which to raise his children. Mr Saitis trusted the offender when he said that it would be worthwhile waiting until he could make money through the Bullecourt developments. When the money was lost he had to start again saving for a deposit, working twice as hard to make up for the money that he has lost to the offender. He is now struggling to get ahead and pay off his debts, having had to borrow money from his parents at times. He had to sell the townhouse he owned in a beach side suburb and move out west.

24 The consequences for Mr Saitis extend beyond the financial of course, it has affected his health and he has had frequent arguments with his wife because of the financial hardship caused by the offender’s wrong doing.

25 The money that Ms Kokkotas paid to the offender came from a life insurance policy over her brother who passed away at the age of 26. It was only seven months after his passing that the offender approached her with the idea of using the proceeds of the life insurance policy. The level of criminality displayed by the offender was such that he was prepared to take that money knowing its origin. That money was to be a retirement nest egg for Ms Kokkotas’ parents who now have the loss of the money to deal with along with the loss of their child.

26 Ms Ioakimaros had to go back to work as a result of losing the money she gave to the offender so that she was unable to herself care for her young children. Indeed the money that she paid was given to the offender while she was on maternity leave. That money was going to be used by her for day-to-day living expenses and household bills while she cared for her children until they were of school age.

27 At the time Nick Genaris handed over his money to the offender he and his wife had no savings, had a mortgage and were about to have their second child awaiting maternity leave at half pay. The offender knew this and told them if they gave him the money he asked for, their financial situation would be better within a six month period. They are still paying interest on the money they borrowed to give the offender.

28 Of course the consequences extend further. Mrs Genaris had to return to work full time when the children were very young. She would have liked to educate her children at a private school but that is no longer an option. They have had to live with her parents. Mr and Mrs Genaris summarised the position this way

“prior to entering this real estate transaction with Con Riganias we had a manageable mortgage. This mortgage has now almost doubled and as a result of this we will continue to be in heavy debt for the majority of our lives, limiting our children’s opportunities and futures.”

29 When Mr Siambis first got involved he owned an investment unit with a very small amount of money, about $5000, outstanding on the mortgage. Through his hard work and savings he was in a position to buy a second property so he drew down on the loan and took out $88,000 to give to the offender. Of course that money has now been lost. His loan now stands at about $100,000.

30 Each of the victims also suffered psychologically, particularly as the offender’s misconduct enabled him, and his family, to live a lifestyle which is probably now denied the people he defrauded.

31 Through his ongoing dishonesty the offender was able to obtain the sum of $828,950 from his various victims. Of that amount only $19,000 has been repaid after the offender transferred some money through Mr Siambis’ bank account to pay debts which the offender owed. The $19,000 was left in Mr Siambis’ bank account.

32 The offender was born in Greece and came to Australia as a young child. He went to school to year 10 but then left to study, firstly as a mechanic and then as a real estate agent. From 1980 until when he started work as a real estate agent in 1994 he primarily worked in his own take away food businesses in Warriewood, Balgowlah and Surrey Hills. For 4 years in that period he was employed in an import export business as well.

33 Since his dishonesty has been made known he has had trouble getting a job, being employed in various odd jobs from time to time.

34 He is one of three children, his older brother and step sister having no trouble with the law. The offender himself has no prior convictions. His father died recently and his mother has been recently diagnosed with leukaemia. The outlook for her is bleak indeed, but Mr Gelbert does not submit that the effects of the offender’s incarceration upon his family members is exceptional.

35 The offender is a pathological gambler and indeed the evidence of the forensic accountant demonstrated that much of the money the offender dishonestly received was paid into his TAB account. He gave evidence that he had hoped to be able to repay the money, often gambling in an attempt to do so. Not surprisingly he was unsuccessful. He now has no assets, no real estate and lived in rented accommodation before I refused him bail.

36 Gambling may explain some of the offender’s misconduct but it does not mitigate it. When a person has gambled away all of their own money, even if that be the case here, there is a choice to be made. The offender chose to continue his gambling by stealing from family and friends. Even addicts are not powerless to control their actions. It was the offender’s decision, a decision he repeated on many occasions, to fund his gambling through dishonest means.

37 When he gave evidence he appeared to be deeply ashamed, unable to even look at anyone in the Courtroom, including those who were the victims of his offences. He said that he used his family and friends for his own benefit and that his actions were motivated by “greed”. He recognises that he has torn his family apart. He also recognises that his wife, children and mother will suffer.

38 The offender has of recent times been devoting a fair bit of his efforts towards looking after his mother, who, I mentioned earlier, has been diagnosed with leukaemia. She of course has been deprived of that assistance since the offender went into custody. Although the hardship that will be occasioned to others through the offender’s incarceration is not in any way exceptional, there is the significant possibility that the offender’s mother will die whilst he is in gaol which will make his time in custody harder than would otherwise be the case. Similarly the offender must be effected by the knowledge that other members of his family, in particular his children are effected by his incarceration. I have taken that matter into account when formulating the appropriate sentence.

39 As I mentioned at the outset of these remarks, the offender pleaded guilty on the fourth day of his trial. The utilitarian value of that plea is minimal. Although it did save court time, the prosecution case needed to be prepared and presented (up until the pleas were entered), witnesses needed to be organised and court time had to be set aside. In those circumstances I will allow only a minor discount for the offender’s plea of guilty.

40 Nor are those belated pleas consistent with the offender’s claim to be remorseful. He knew full well that he was guilty of each of these offences yet refused to admit it until I had decided to admit some important evidence against him, and the impressive evidence of the forensic accountant was given, so that the writing was on the wall.

41 Whilst giving his evidence in the sentence proceeding the offender seemed more concerned with his position and that of his mother, wife, and children than the consequences of his offending for his victims. Nevertheless I do accept that he is sorry for what he has done.

42 The offender’s refusal to admit his guilt has had an impact on the delay between his offending and today. But other aspects of that delay are due to the unexplained failure of the prosecuting authorities to take action, with appropriate speed, after they were first made aware of the allegations in September 2005. It is probable that the accused has always been aware that this day would come. I will take the delay into account when formulating the appropriate sentence.

43 As is common, members of the offender’s family ask the rhetorical question “how will sending the offender to gaol help anyone?” Is it seriously suggested that the offender does not deserve punishment? of course he does. Other members of society also need to understand that if they act the way the offender did they too will be punished, so that they can take that matter into account when deciding whether or not to greedily take money for their own purposes from family and friends.

44 There are no special circumstances in this case. A psychologist’s report tendered on behalf of the offender suggests “it is highly unlikely that Constantinos Riganias will re-offend”. There is no evidence that the period of eligibility for parole which arises from the application of the statutory ratio will be insufficient to do what can be done to achieve the offender’s rehabilitation. Nor is there any other reason to extend leniency to the offender through a finding of special circumstances. In any case the overall non-parole period which I will shortly announce is the minimum which I consider properly reflects the offender’s criminality.

45 It is important that the offender, and the victims of his offences, understand that none of his offences should go unpunished. For that reason, in most cases I have partially accumulated the sentences I am about to announce on other sentences but because of the shear number of offences committed by the offender, the extent of accumulation is comparatively small. No doubt the victims of the offender’s behaviour may consider that the extra punishment the offender receives for the offence involving him or her is inadequate, and the supporters of the offender will no doubt consider that the overall sentence I am about to announce is harsh. However the sentences, and the way they have been structured is a reflection of sentencing principles which bind me, in particular, those concerning the principle of totality and the need for a sentence to adequately reflect the objective gravity of an offender’s conduct and the consequences of that conduct for the victims of his crimes.

46 Count 2 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of 18 months to commence on 20 November 2009.

47 Count 3 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of 18 months to commence on 20 May 2010.

48 Count 4 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of 18 months to commence on 20 November 2010.

49 Count 5 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of 18 months to commence on 20 May 2011.

50 Count 6 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of 18 months to commence on 20 November 2011.

51 Count 7 on the indictment, the offender is sentenced to imprisonment. I set a fixed term of 18 months to commence on 20 May 2012.

52 Counts 8 and 9, for each the offender is sentenced to a fixed term of imprisonment of 12 months to commence on 20 November 2012.

53 Those sentences are all fixed terms because of the sentence I am now about to announce on count one. On that count the offender is sentenced to imprisonment. I set a non-parole period of one year to commence on 20 May 2013 it will expire on 19 May 2014 on which day the offender is eligible to be released to parole. I set a head sentence on count one of 2½ years which means that the overall sentence will expire on 19 November 2015.

54 The effect of the sentences I have just announced is the offender is sentenced to imprisonment with an effective non-parole period of 4½ years and a head sentence of 6 years.

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JUDGMENT

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