DPP v Dankovic [2012] VCC 712

4 The prosecutor Ms Guesdon tendered a prosecution case summary for the offending in each indictment. The offending for the charges in the first indictment is described in the summary I marked as Exhibit A. The offending for the charges in the second indictment is described in the summary I marked as Exhibit B. Your counsel Mr Pearson accepted the accuracy of each summary and agreed that I could proceed to pass sentence on you on the basis of what is contained in each summary.

5 Because the summaries were each respectively read to the court it is not necessary that I repeat here what is there to be found except in summary form.

6 As to the two charges on the first indictment your offending can be summarised as follows. Whilst employed by a business called HPCC Finance in Footscray under the name of Marina Loprese you undertook work for a client Tran as a conveyancer for a fee of $495. Tran was purchasing a property.

7 Prior to settlement of the purchase you sent a fax to Tran's bank, the NAB, on the letterhead of HPCC requesting cheques required for settlement. The request included two cheques, being one payable to M, Loprese for $495 (Charge 1) and the other for $2,500 payable to M. Dankovic (Charge 2). Neither cheque was required to effect settlement of the purchase on behalf of Tran but were paid into bank accounts controlled by you. By this means you obtained a total sum of $2,995 by deception from the NAB but the loss was suffered by Tran whose account was debited. This offending occurred on 21 December 2009.

8 I admitted into evidence a victim impact statement of Mr Tran as Exhibit C. The statement brings out how offending of this kind can affect people. Mr Tran and his family no longer trust service providers such as conveyancers because you have breached the trust he placed in you. In passing sentence I have taken the victim impact statement of Mr Tran into account as I must.

9 You were arrested and interviewed and charged in relation to the charges in the first indictment on 18 January 2011. At interview, rather than express remorse, you claimed to have acted on authority and told police you were entitled to the cheques. That was sheer nonsense.

10 As to the three charges on the second indictment your offending can be summarised as follows.

11 In January 2011 you were carrying on a conveyancing business in Sunshine. You acted as a conveyancer for one Gail Sutherland, an immigrant from South Africa, who had at that time signed a contract to purchase a house. You advised Sutherland to arrange with her bank to deposit the full amount of the purchase price into a trust account controlled by you. Later you told Sutherland this arrangement would have to change and asked her to obtain a number of cheques from her bank required for settlement and give them to you. The cheques included a cheque in the sum of $17,452 payable to Marina's Conveyancing, your business. This cheque was to cover the costs of you acting of $500 as well as Titles Office Lodging Fees of $1,082 and Stamp Duty of $15,870.

12 On or before 2 March 2011 these cheques were provided to you. Instead of paying stamp duty on the transfer you prepared a false a statutory declaration (Charge 1) and used this document by lodging it with the State Revenue Office (Charge 2) in the result that the State Revenue Office was deceived into assessing the transfer of the property from the vendor to Ms Sutherland as being non dutiable. You then used the proceeds which had been paid to you for payment of the appropriate stamp duty for your own purposes (Charge 3). The money has gone on every day type living.

13 The offending in the second indictment occurred whilst you were on bail for the offending in the first indictment. In passing sentence upon you for the offending in the second indictment I must, unless I otherwise direct, order any sentence being a term of imprisonment to cumulate upon any term of imprisonment I impose by way of a sentence for the offending in the first indictment. That is what s.16(3C) of the Sentencing Act 1991 provides for. Here the prosecution have asked that I apply this section and provide in my sentence for the total cumulation between the offending in the two indictments. Having given thought to this submission and the nature and circumstances of the offending I accept the submission and this is reflected in the sentence I shall shortly pass.

14 The person who lost money in your fraud in the second indictment offending was Gail Sutherland. I admitted into evidence as Exhibit D a victim impact statement from her which was read to the Court. Ms Sutherland was also present in the court for your plea. Mr Pearson objected to much of the content of the victim impact statement on the ground it was inflammatory and irrelevant for the task which I have; namely, to sentence you for the offending covered by the charges. I agree with that submission. There are statements in the victim impact statement which attribute various consequences to the victim from your offending that do not relate to the charges for which I sentence you. They may in fact relate to other offending which is still the subject of investigation. To that extent I have put out of my mind the matters contained in the victim impact statement of Ms Sutherland that do not relate to the offending covered by the charges in the second indictment. Having said that, I well understand how Ms Sutherland feels betrayed by your offending in the charged acts. She placed her trust in you to protect her interests. Not only did you betray her trust, you did so to advance your own financial interest.

15 Although the amounts of money in each of the charges are not large, the trouble that you went to in perpetrating your deceptions, nonetheless shows your offending here represents serious examples of what are serious offences. Ms Guesdon submitted the offences were relatively sophisticated. I agree. They are straightforward examples of breach of trust. In such circumstances any sentencing disposition will have proper regard to application of principles of general deterrence and denunciation of your conduct.

16 You were remanded in custody on 18 January 2011 but granted bail on 21 January having served four days in custody. You were arrested and charged in relation to the second indictment offending on 19 May 2011. It is agreed that up to and including 29 May 2012 you have served a total of 387 days pre-sentence detention for the offending I am to sentence you for.

17 You have admitted a number of prior convictions from 15 court appearances dating back to August 1979. With an irrelevant exception of a prior conviction for assault from a domestic incident in May 1999, all of your prior convictions are for dishonesty offences or for breaching non custodial dispositions by further offending by dishonesty offences. In your case in passing sentence, as well as giving appropriate application to principles of general deterrence and denunciation, I also must have regard to application of the principle of specific deterrence.

18 I turn to your background circumstances. Mr Pearson provided a good summary of your background in writing and I borrow from it. You were born on 21 January 1962 and you are now 50 years of age. You migrated to Australia with your family as a young child from Italy. You have brothers and sisters. Your childhood is said to have been characterised by physical and sexual violence at the hands of your father and eldest brother. Mr Pearson described you as being physically injured and emotionally damaged. He submitted these events have come to shape your entire life.

19 Your parents are said to have separated when you were about 16 after which you never again spoke with your father who is now deceased.

20 You were described by your counsel as being both intelligent and well educated to Year 12 level at which time you left school, and home, leading what was described as a lawless and somewhat rebellious existence since then. I note your first conviction for shop theft was at age 17.

21 I was told and accept you accept counselling from the Centre Against Sexual Abuse whilst in custody on remand. You are neither an abuser of drugs or alcohol and nor are you addicted to gambling. You took Zoloft anti-depressant medication in the mid 1990s for depression. Whilst in custody you have been diagnosed as being diabetic and have been appropriately medicated.

22 You were married in 1981 aged 19. The marriage produced three (3) children whom you remain close to and are proud of. The marriage broke up in 1998 when you were aged 36. The break up was acrimonious.

23 You have been in a relationship with one Emil since 2000 and you remain close notwithstanding you being in custody. He visits you regularly as do your children and elderly mother.

24 I accept the factual background provided to the court through your counsel.

25 A psychological report from Gina Cidoni, psychologist, was tendered in evidence as Exhibit 1. The prosecution submitted correctly that the opinions were based entirely upon what you had reported to Ms Cidoni without corroboration in any way. That is true but the nature of the matters personal to you discussed in the report are of such a kind I am not prepared to accept they have been made up to misled the court. I therefore have taken into full consideration in arriving at an appropriate sentence the opinion of Ms Cidoni. In her report Ms Cidoni opines by way of conclusion as follows:**

"Opinion; Ms Dankovic is a severely reduced person. The assessment revealed evidence of psychopathology with significant thought disorder, also depressed mood, anxiety and chronic PTSD, and abbreviation for post-traumatic stress disorder. Her presentation and history is consistent with her report of a previous diagnosis of dissociative identity disorder (DSM-IV-TR). This including the presence of two or more distinct identities or personality states (each with its own relatively enduring pattern of perceiving, relating to and thinking about the environment and self) which recurrently take control of her behaviour; and an inability to recall important personal information that is to extensive to be explained by ordinary forgetfulness.

Ms Dankovic reported severely traumatic childhood sexual and physical abuse. Research has linked childhood abuse with dissociative identity disorder. This association is widely reported to occur in response to severe and chronic childhood trauma. The disassociation is initially used as a means of defence or an attempt to adapt to the pain; if the extent of the abuse is sufficient then the dissociative response then regularly becomes relied on as a defence mechanism and the individual's mental processes become intermittently fragmented. In view of her disturbance her daily functioning is seriously compromised and presents challenges to her ability to think clearly, make sound decisions and exercise good judgment. Dissociative disorder results in an altered state of mind where sufferers are deluded about who they are. The individual suffers a loss of autonomy, cannot remember events that take place in their lives, and are incapable of making rational decisions and commitments when in an altered state.

A psychiatric opinion is highly recommended with regard to making a formal diagnosis. In terms of rehabilitation intensive psychotherapy is required. In view of her severe disturbance she will require care, intensive support and understanding upon release into the community for some time."

**26 Mr Pearson did not contend such an opinion gives rise to a consideration of any mental state defence and nor did he submit that principles in Verdins v R have application here. That was appropriate in my view. I take the report into consideration from the point of view of obtaining some understanding of the issues at work in your life and which to some extent explain your offending behaviour and your prospects for rehabilitation. I was told and accept you now acknowledge the wrongfulness of your behaviour although that did not come through when you were first interviewed by the police.

27 The prosecution seeks compensation orders in favour of your victims and these orders were not opposed by your counsel and I will sign them.

28 I cannot say you have good prospects for a full rehabilitation. At best I think your prospects must be assessed as guarded. That is because of your age and your past history. Many forms of past disposition where you have been given the chance to rehabilitate yourself have failed. Absent proper counselling and supervision I doubt you will achieve full rehabilitation but I accept you presently seek to achieve that goal.

29 You have been remanded at Dame Phyllis Frost Centre where you are a trusted prisoner but, because you are on remand, you have not had access to all courses and facilities available to sentenced prisoners. You have however made the most of your time on remand completing short courses in various subjects that will assist with your rehabilitation. I admitted into evidence as Exhibit 2 certificate to that effect.

30 Addressing the offending in each indictment Mr Pearson submitted there was no evidence either set of offences were part of a series of other offending. He describes each as one off events. I agree and will sentence on that basis. He said the offences were prompted by poor financial circumstances. That is not an excuse but it is an explanation.

31 Mr Pearson emphasised your pleas of guilty at an early stage without need for a committal. I accept that submission. By your pleas of guilty you have saved the time and costs of two trials. For this you are entitled to a reduction in sentence from that which would be expected to follow had you been convicted at trial. This reduction in sentence will be reflected in the sentences I will shortly pass. I treat your pleas of guilty as having been given at the earliest opportunity.

32 Addressing your prior convictions and the dispositions previously imposed upon you Mr Pearson emphasised you have complied with parole on the one occasion in the past it has been granted to you and you have otherwise generally complied with suspended sentences and other non-custodial dispositions. This, he submitted, suggests that if released on parole you will comply with it without re-offending.

33 Mr Pearson criticised the prosecution for bringing these matters on indictment to this court when they could have easily been dealt with summarily in the Magistrates' Court. In the lower court the maximum penalty would only have been five years. The prosecution here apparently saw these charges and other alleged offending that I am not concerned with here as justifying the indictments in this court on the basis that a continuing course of conduct could be shown. Those considerations are irrelevant here. In my view Mr Pearson's criticism that these charges could have and should have proceeded in the Magistrates' Court is justified.

34 Ms Guesdon submitted that having regard to the nature of your offending and your prior criminal history application of the principles of general and specific deterrence must loom large in any sentence passed. She submitted on instructions an appropriate head sentence of three to four years' imprisonment with a non-parole period of 18 months to two and a half years is called for as an appropriate sentencing range. Mr Pearson disputed this and submitted the range ignored the fact this should have been dealt with in the Magistrates' Court where the range would be much lower.

35 In passing sentence I have taken into account all of these matters.

37 On Charge 1 you are convicted and sentenced to a term of imprisonment of two months.

38 On charge 2 you are convicted and sentenced to a term of imprisonment of six months.

40 On Charge 1 you are convicted and sentenced to a term of imprisonment of six months.

41 On Charge 2 you are convicted and sentenced to a term of imprisonment of six months.

42 On Charge 3 you are convicted and sentenced to a term of imprisonment of two years.

43 I direct that the sentence I have imposed on Charge 2 on indictment B10135069 cumulate upon the sentence I have imposed on Charge 3 in indictment B11356768, making a total effective sentence of two and a half years' imprisonment.

44 I direct that you serve a minimum of one year and eight months' imprisonment before you are eligible for release on parole.

45 I declare that you have already served 389 days pre-sentence detention of the sentences I have passed this day, and that 389 days be reckoned as time already served by you under the sentences passed this day and be entered into the records of the court.

46 For the purposes of s. 6AAA of the Sentencing Act 1991 I declare that had it not been for your pleas of guilty to the charges I would have imposed a total effective sentence of three and a half years' imprisonment and I would have directed that you serve a minimum term of two years and four months.

47 I will sign the compensation orders submitted by the prosecution as the making of those orders was not opposed.

48 Ms Rennie, have I correctly calculated the pre-sentence detention?

49 MS RENNIE: Your Honour, the Crown's calculation is 390 days.

50 HIS HONOUR: I was told two days ago that it was 387; how do we get 390 given that it was two days ago, the day before yesterday?

51 MS RENNIE: My instructor tells me that that figure was given three days ago on Tuesday, is that not the case?

54 HIS HONOUR: The declaration as to pre-sentence detention will be 390 days.

56 HIS HONOUR: Thank you, Ms Rennie. Are there any matters, Ms Ma, arising out of that?

58 HIS HONOUR: Very well. Could you remove Ms Dankovic please.