The Queen v Alimic

[2019] VCC 2264

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-18-00653

THE QUEEN

v

MARIA ALIMIC

---

JUDGE:	HIS HONOUR JUDGE LACAVA
WHERE HELD:	Melbourne
DATE OF HEARING:	8 July 2019
DATE OF SENTENCE:	11 July 2019
CASE MAY BE CITED AS:	The Queen v Alimic
MEDIUM NEUTRAL CITATION:	[2019] VCC 2264

REASONS FOR SENTENCE
---

Subject: obtaining a financial advantage by deception. 
Sentence: 4 and ½ years imprisonment with a non parole period of 3 years.

---

APPEARANCES:	Counsel	Solicitors
For the Crown	Ms J. Croxford &  Mr D.Sagnelli
For the Accused	Ms E. Stevens & Ms.M. O’Brien

HIS HONOUR

1Maria Alimic, you have been found guilty after a trial of one Charge of obtaining a financial advantage by deception.  The maximum penalty for this offence is imprisonment 10 years.  This offence occurred on 24 March 2016.

2You were also found guilty of a second, unrelated offence of attempting to obtain a financial advantage by deception for which the maximum penalty is imprisonment for five years.  This offence occurred between 1 August 2016 and 30 September 2016.

3You fall to be sentenced for these crimes after a trial.

4Whilst you cannot be punished for having pleaded not guilty and conducting a trial at the same time you cannot expect a reduction in sentence that would normally follow had you in fact pleaded guilty to the charges.  I will return to these matters shortly.

5At the time that I heard the plea submissions for the crimes that I have set out above you also pleaded guilty to a Commonwealth charge on a separate indictment of obtaining a financial advantage by deception from the Commonwealth between the 4 July 2016 and the 25 July 2016.  The maximum penalty for this Commonwealth offence is also imprisonment for 10 years.

6This crime was committed by you submitting to Medicare claims for medical services which had not been rendered.  The offending took place between the times of the two state offences dealt with by the jury.  I will come to discuss the circumstances of this Commonwealth offence a little later in these sentencing remarks.

7Another relevant but complicating matter in respect of you is at the time of sentencing you are in fact undergoing a sentence for other unrelated dishonesty offending against the Commonwealth.  In March this year a sentence was imposed upon you in the Magistrates’ Court.  The sentence in the Magistrates’ Court dealt with offending committed by you between August 2011 and 2014.

8I will also return to that matter a little later in my sentencing remarks.

9You were born on 2 September 1966.  On the hearing of your plea you admitted a significant criminal history for offences involving dishonesty and deception.  You were first dealt with in the Hobart Supreme Court in May 1991 when you were aged 24 years.  You received a term of imprisonment on that occasion for the offence of attempting to obtain goods by false pretences.

10Between 1991 and 2006 you had six appearances in the Magistrates Court, and in this court, all for offences of dishonesty of similar kind to this offending for which I must now pass sentence upon you.  You have received a number of custodial sentences but you have not changed your ways.

11In submissions it was noted that you have a further trial pending in this court to be heard in February 2020.  In that charge you are to be tried with your daughter on a charge of conspiracy to defraud.  The allegations involve large sums of money.  That pending trial is only relevant here because it relates to a submission put on the plea by your counsel Ms O’Brien that I should entertain making a community corrections order in combination with a term of imprisonment in my overall sentence.  For the reasons that will soon become apparent, I am of the opinion that your chances of rehabilitation are poor and that the making of combination sentence being a term of imprisonment in combination with a community corrections order will not serve all of the purposes of sentencing in your case.

12I turn to deal with the state Charges that the jury convicted you of in February of this year.

13In respect of first Charge of obtaining financial advantage by deception, the prosecution case was that you committed this offence with Graham Spillard.  He pleaded guilty to this Charge, and gave an undertaking which he honoured, to give evidence against you on behalf of the prosecution.  He was convicted and sentenced to a Community Corrections Order.  His background was very different to yours.  Unlike you, he had no prior conviction for anything.

14The prosecution case which must be assumed to have been accepted by the jury in summary form was as follows.

15You met Spillard in about 2008 or 2009 on an online dating site and keep in contact periodically.  In about 2014 Spillard told you that he was renovating a house in Queensland.  He showed you some pictures of his work and said that he intended to buy another house in Melbourne and to renovate it.  He said that he would do this after the Queensland renovation was complete.

16In about November 2015 you and Spillard discussed going into partnership together.  In substance the two of you agreed to buy a house together which Spillard would renovate.  Proceeds of sale of Spillard’s Queensland property were to be used to help fund the renovation and building. Spillard’s role was to organise permits and plans and to do the renovation work.

17You purported to work as a mortgage broker in Sunshine.  Your role in the partnership was to organise finance to pay for the project until Spillard’s Queensland money came through from the sale of that property.

18Together you both looked for suitable properties and eventually a property at Reservoir was located and purchased.  You were the successful bidder and the contract was put in Spillard’s name.  The purchase price of the property was $880,000.  You paid $30,000 towards the deposit of $88,000. You set about obtaining a loan from the ANZ bank to pay the balance of the purchase price and stamp duty etc.

19A loan of $704,000 was obtained from the ANZ bank.  Documentation in the form of payslips which purported to show that Spillard, a nurse, was employed by a dental group was falsified at your direction and submitted to the ANZ Bank.  You directed the making of false documents and you directed Spillard as to what he should do in order to obtain the loan from the bank.  He followed your instructions.

20Evidence was lead that had the ANZ Bank known that it was given false documentation and information about the borrower Spillard, it would not have approved the loan.  The financial advantage obtained from the ANZ Bank because of your fraud was $704,000 which was used to complete the purchase of the Reservoir property.  The Reservoir property was later sold and the bank was paid out without loss.

21The second Charge that you were convicted of is attempting to obtain a financial advantage by deception.  It is unrelated to the first Charge but it does involve Spillard.

22Again, the prosecution case which must be assumed was accepted by the jury in summary form is as follows.

23In September 2016, Spillard was the owner of a unit located in Hurstbridge.  That property was unencumbered.  Spillard was also a director of a company called Spokeman Constructions Pty Ltd.  At around this time you had many loans on foot and you attempted to borrow more.

24You approached a moneylender named Stevic who operated a company FX Money International Pty Ltd.  Stevic had never met Spillard.  He only dealt with you.  Stevic is a moneylender of last resort who lends money at high interest rates.  In your record of interview you described him as a loan shark.

25On 23 September you asked Stevic for a loan of $250,000, but you also still had an outstanding loan from him and he would not lend you more money until you had repaid the first loan.  You offered various properties as security but they were not acceptable to Stevic.  Eventually you told Stevic that Spillard’s Hurstbridge property could be used as security for your borrowing.  This was false as Spillard had not agreed to you using his property for security for your borrowing.

26You attempted to obtain the loan by having the security documentation forwarded to you.  Your attempt to obtain a loan of $250,000 failed because the security documentation was not sent to you, as you requested, but to a solicitor, who had previously acted for Spillard, Mr Chung.  He contacted Spillard who told him not to proceed with the transaction.  You attempted to have Chung proceed with the transaction even though Spillard had refused to allow it to proceed.  Your attempt to obtain the loan was thus foiled and failed.

27Your offending in each of these two charges are each serious examples of what are serious offences notwithstanding the fact on each occasion there was no ongoing loss incurred.  Financial dealings of this kind cannot properly work in a commercial setting where people behave as you have. Commercial dealings of this kind depend upon the integrity and honesty of all parties.  You simply lied as it suited you to advance your personal financial dealings.

28The prosecution case against you on each of these charges was strong.  In the face of compelling evidence you have maintained your innocence, which is your right, however in doing so you have not evidenced any remorse for your wrongdoing and this must be taken into account in passing sentence upon you.

29In cases such as this the sentence imposed by the court must properly reflect the application of the principal of general deterrence.  Those who would seek to act as you have must be deterred from doing so and realise that if they are detected, and convicted, they will be dealt with appropriately by the court.  In your case because you have a significant number of prior convictions for similar offending the sentence imposed must also properly reflect application of the principal of specific deterrence.  The sentence must also appropriately serve to denounce your offending.

30I turn to the Commonwealth charge which you pleaded guilty to on your plea.  The circumstances of your offending in that charge are described in a summary of prosecution opening prepared for the plea dated
27 June 2019.  That document was read to the court by the prosecutor Ms Croxford, and your counsel, Ms O’Brien, accepted that the summary was accurate and forms a proper basis upon which I can proceed to sentence you on that charge.  In those circumstances it is not necessary that I here again set out in detail all of the circumstances of your offending but I do so only in an abbreviated way.

31On 16 June 2016 you submitted a Medicare claim form in respect of medical services that you had in fact received.  It was a legitimate claim, and an amount of $4219.90 was remitted electronically to a bank account nominated by you.

32Thereafter, and no doubt void by the simplicity with which such claims are dealt, on four separate occasions between 4 July 2016 and 25 July 2016 you submitted to Medicare four further claims.  Each of those four claims was false and claimed an amount of $4551.05 for medical services that were not in fact provided to you.  Each claim was supported by falsified documentation prepared by you, and you received a total sum of $18,204.20 by this dishonest means.

33This offending is against public funds and is the kind of offending for which you have a number of prior convictions.  Although your offending against the Commonwealth on this occasion was relatively short lived, it did occur around the same time as the offending in Charge two that was before the jury.

34Appellate courts in this country have repeatedly said that offending of this kind against the public purse is serious and sentencing courts have a duty to recognise that and the sentence imposed must have full regard to the principle of general deterrence and the sentence must denounce your offending.

35You have pleaded guilty to the Commonwealth charge and that is to your credit.  By your plea of guilty you have saved the time and cost of a trial, you have admitted responsibility for your offending, and you have advanced the administration of justice.  Because you have pleaded guilty you are entitled to receive, and will receive, a reduction in sentence for this charge and this will be clear from the sentence that I will shortly pass.

36You have been in custody since 6 October 2016.  Pre-sentence detention for the matters that I am to sentence you amounts to 875 days.

37You were arrested on these and other matters and you have remained in custody without bail because you were considered an unacceptable risk of reoffending.

38In March of this year you appeared before the Magistrates’ Court at Geelong in relation to 4 Charges of offending against the Commonwealth. On 7 March 2019 you pleaded guilty to those further Commonwealth charges relating to offending that occurred between August 2011 and
3 October 2014.  The Magistrate imposed a sentence of eight months imprisonment having previously expressed an intention to impose a sentence of only six months imprisonment.  Because of this error, the matters that had been dealt with in the Magistrates’ Court on the 7 March 2019, by agreement, we brought on before me as an appeal out of time in order to correct an error in the Magistrates’ sentence. I dealt with the appeal out of time and set aside the sentence below and re-sentenced you in the result that you are now to serve an overall sentence of imprisonment of six months commencing on 7 March 2019 arising from those matters previously before the Magistrate.  I directed that 123 days be reckoned as time already served.  That was done on 8 July this year which was the day that I heard the plea on your behalf.  About two months of that sentence from the Magistrates’ Court remains to be served.

39All of this is relevant because it reduces the amount of pre-sentence detention to be declared for the charges that I must now sentence you.  It is further relevant to the question of totality in sentencing.  In passing sentence upon you I am very conscious of the fact that you have been in custody continuously since 6 October 2016 and I have taken this into account.  In my sentence, the sentence I impose on the Commonwealth charge will be made to commence this day so that it will be served more or less concurrently with the remainder of the sentence imposed on the two state matters.  One of my main reasons for doing this is that had you been dealt with on this Commonwealth charge at the same time as the other Commonwealth charges in the Magistrates’ Court on the 7 March of this year you could have expected a degree of concurrency in my view.

40I turn to some matters relating to your background circumstances.

41A helpful written outline of submissions was filed with the court on your behalf which I marked as Exhibit 1.  You were raised by your Croatian parents in a loving and supportive home.  You were educated in the Victorian public school system and left school after completing year 11. You have worked in various occupations including jobs as a radiographer, a real estate agency, as a secretary and as a mortgage broker and also in the food industry.

42You were previously in a long-term relationship which produced two daughters, namely Klemintina and Stefani.  I was told and accept that your relationship was marred by family violence.

43You first appeared in court charged with dishonesty offences in Tasmania in 1991.  The first charge related to a false insurance claim and you have thereafter appeared before courts on dishonesty charges in 1997, 2004, 2005 and 2006.  The latter charges related to you lodging false tax returns and claims for family tax benefits. 

44When you will first jailed in 1991 you gave birth to a still born child whilst in custody.

45In 1992 you were referred to a consultant psychiatrist Dr Congiu and you continued to see him regularly until October 1997.  I received into evidence a copy of a report from Dr Congiu dated 13 December 2016 which I marked as Exhibit 3 on the plea.  In that report Dr Congiu said, inter alia as follows:

46‘Mrs Maria Alimic was initially referred to me by her general practitioner and I first saw her on 24 February 1992.  She presented as a severely disturbed individual.  Her mood was unstable with symptoms of both anxiety and depression.  The degree of disturbance was such that she was initially unable to give a coherent history.  At that stage Mrs Alimic was still grieving the loss of a male child who was stillborn on 7 August 1991.  The main findings of consultation were consistent with the prolonged grief reaction and associated feelings of guilt over the child’s death.  There were a number of other issues intermingled with grief which were associated with intense feelings of guilt and anger.’

47You have seen Dr Congiu on a number of occasions over many years.  He said in his report that when he saw you in May 2009 you presented with a much milder version of an anxiety/depression syndrome.  He prescribed antidepressant medication and you continued to see the doctor for counselling until March 2011.

48You were once again referred to Dr Congiu on 16 April 2016 and he saw you in August and September 2016, around the time of this offending.  He said in his report:

49‘Mrs Alimic is presented in an acutely distressed state exhibiting symptoms of anxiety and unstable mood consistent with symptoms of depression.  The precipitant event on this occasion related to difficulties which had been encountered in the course of running a practice concerned with financial services.  Ms Alimic informed me that both she and her daughter Tina had been charged with fraud.  I was told there were approximately 40 separate charges.

50In consultation it was noted that in addition to symptoms of both anxiety and depression, Mrs Alimic was very angry and bitter.  She maintained she had been “set up” by (sic) group of individuals whom she had assisted in purchasing property.

51When I saw her in April 2016 (sic) noted that she had been prescribed antidepressant medication (duloxetine) which she was taken at the dose of 60 mg daily.  On 20 September 2016 she presented with very high levels of tension and tranquilizing medication was added.’

52I also received into evidence a psychological report from Mr Jeffrey Cummins dated 8 March 2019.  He interviewed you by means of a video conference for purposes of making the report on the 28 February 2019.  He opined, inter alia, as follows:

53‘[43]     In my opinion she was a difficult woman to interview and assess.  She was frequently very distracted.  My general impression of her was that she was likely to have a personality disorder, although in my opinion she did not present with or disclose sufficient characteristics to be diagnosed with any of the standard of personality disorders.  She certainly displayed some of the characteristics of a borderline personality disorder (DSM – 5 (Code 301.83) including a disturbance of identity, repeated efforts to avoid real or imagined abandonment, mood actuation’s and possibly also dissociative symptoms.  I therefore assessed her as having Other Specified Personality Disorder (DSM – 5 Code 301.89) – with mixed personality features. In my opinion Ms Alimic is also genuinely suffering chronic symptoms of anxiety and depression which are most probably reflective of the suffering a chronic adjustment disorder with mixed disturbance of emotions and conduct (DS M – 5 Code 309.4) – with this adjustment disorder being triggered as a result of her having been in a chronically abusive marriage.  She also suffers from a major depressive disorder which is of at least moderate severity and recurrent in type (DSM – 5 Code 296.32).

54She also suffers from a number of medical symptoms some of which would appear to be related to her having been diagnosed with SLE.’

55Mr Cummins noted that whilst on remand you were being medicated with the antidepressant medication Cymbalta and that you were also receiving prescribed Methotrexate for systemic lupus.  Mr Cummins was also of the opinion you would previously have attracted a diagnosis of gambling disorder and cannabis use order.

56Mr Cummins gave the opinion that there is a nexus between his diagnosis and the commission of these offences.  In paragraph 48 of his opinion he said, inter-alia:

57‘In my opinion it is very probably her mental health issues played a role – perhaps even a significant role – in her offending behaviour, although I am unable to be specific about the nexus between her mental health and her offending behaviour.’

58I do not accept that evidence.  I have difficulty accepting that such an opinion can be given on the basis of one video interview.  That this is so is also apparent from Mr Cummins own report.  Even Mr Cummins could not specify what the nexus was between your mental health and the commission of these offences.  I do accept that I must take into account the fact that you suffer from a mild adjustment disorder, anxiety and depression in framing my sentence but I do not accept that your moral culpability this offending should be regarded as having been reduced.

59I accept that your time in custody has not been easy for you and you may have at times experienced difficulties with other prisoners.  I received into evidence an affidavit from Brendan Money who is assistant commissioner, sentence management division of Corrections Victoria.  I also received full details of your placement and movements within the prison system whilst in custody.  I have also received into evidence your full medical record from Justice Health.  I have read and have had full regard to these documents.

60You suffer from Lupus and I am satisfied that you have been receiving adequate medical care for this condition whilst in custody including appropriate dietary needs.  I am also satisfied that you are being properly medicated for depression whilst in custody.  The affidavit of Mr Money deals with a number of issues raised by you concerning your request from time to time for protective custody, your difficulty with other prisoners and other matters.  I am satisfied that any difficulties that you may be experiencing in custody which maybe making your time in custody more difficult for you are of enlarge part of your own making, perhaps deliberately.

61I was told and accept that when released from custody you plan to reside in private accommodation near your elderly parents and to assist them in a transition into a retirement village.  I also accept that you would like to reengage in mental health treatment, probably with Dr Congiu.

62I received into evidence as Exhibit 5 a document described as ‘Character Reference’ which is unsigned but which I was told is a reference from your youngest daughter.  I do not accept, absent appropriate evidence, that she wrote this document which is a rambling story about you which I do not act on.

63On the plea prior to my commencing my sentence this morning Ms Stevens who appears for you this day told me that she received the document via email from your daughter and I accept that to be the case, but I do not rely on that document or give it any weight.

64In my judgement your prospects for rehabilitation are poor.  Your criminal history suggests to me that you will reoffend in a fraudulent way given opportunity.  You’ve shown no regret or remorse for your offending and you have a tendency to blame others for almost every aspect of your troubled life.  In passing sentence upon you I must have proper regard to specific deterrence and for the need to protect the community from you.  In my judgement you are capable of defrauding government, business and anyone vulnerable who may per chance happen to come in contact with you.

65On Charge 1 obtaining a financial advantage by deception you are convicted and sentenced to a term of imprisonment of three and a half years.

66On Charge 2 attempting to obtaining a financial advantage by deception you are convicted and sentenced to a term of imprisonment of two years.

67On the Commonwealth Charge of fraud on the commonwealth you are convicted and sentenced to a term of imprisonment of six months and I direct that sentence commence this day.  For the purposes of section 6AAA of the sentencing Act 1991 I state that had it not been for your plea of guilty to this charge the sentence I would have imposed would have been a sentence of 15 months.

68I direct that one year of the sentence imposed on Charge 2 cumulate upon the sentence imposed on Charge 1 making a total effective sentence of four and a half years imprisonment.

69I direct you serve a minimum term of three years before being eligible for release on parole.

70I declare there has been 875 days pre-sentence detention in relation to the sentences passed by me in relation to Charges 1 and 2 and direct that 875 days be reckoned as having been already served, be entered into the records of the court and be deducted administratively.

71Are there any questions arising out of that?

72MS O’BRIEN:  No Your Honour.

73HIS HONOUR: Ms Stevens.

74MS STEVENS:  Thank you, Your Honour.

75HIS HONOUR:  Can you take Ms Alimic into custody please.

‑ ‑ ‑