DPP v Michael [2024] VCC 2087

. I indicated I would impose a fine of $6000 with conviction. You accepted that indication and pleaded guilty on arraignment. When your plea was formally listed ultimately on 23 July 2024 you at that hearing indicated you wished to apply to change your plea. 2. That application was heard on 12 September 2024 by Judge Rozen of this court who refused your application, thus you fall to be sentenced in accordance with the provisions of the that governs sentence indications. In practical terms, given that you have pleaded guilty after a sentence indication I cannot impose a more severe penalty than that that was indicated. 3. As I said, these charges were rolled up charges. The charges were in essence with respect to the victims, identical charges of breach of the

Commonwealth Consumer Laws. The maximum terms for each offence are very substantial fines. The facts and circumstances of the breaches were set out in the prosecution opening. It seems to me what was involved in this case is straight forward. 4. You, Mr Michael, came up with a business idea to offer small businesses such as plumbers or electricians, guaranteed work in maintaining and repairing property by placing them on a register for such work. The guarantee made was that work to the value of $30,000 would be forthcoming over 12 months. A refundable fee was charged and fixed at $2035. 5. Twelve small businesses located in various places along the east coast signed up and paid the fee. In the end no work was secured for any of the businesses and no fees were refunded. The scheme operated from August 2018 through to October 2021. Ultimately when interviewed you admitted the flaws in the system. You maintained that there was every intent to secure contracts for maintenance work but the withdrawal of financing partners and to an extent the pandemic proved too much and the well-intentioned scheme failed. 6. The offences are in broad terms, wrongly accepting payments, making false and misleading representations as to guarantees of work, making false and misleading representations as to value, misleading the public as to the nature of services to be provided and wrongfully accepting payments. Consumer laws are to protect consumers from promises made that are not fulfilled. There is a high need for integrity from those who make enticing promises, who fail to deliver and then keep the payments made by the consumers who anticipated getting a service. 7. When such conduct falls to be dealt with in the criminal courts, the primary sentencing purpose is deterrence. Also of importance is the impact on the duped victims and the denunciation of sharp business practices or practices of overreaching and then not paying refunds when they should be paid. In the scheme of things this whole proposal was flawed, almost but not quite a promise too good to be true. 8. The sum involves of $2035 for each of the 12 victims are at the lower end of the scale in comparison to most online frauds and schemes charged as breaches of State or Commonwealth Crimes Acts. Appropriately, in those matters the offenders face long maximum penalties of gaol terms. These offences are regulatory and directed at ensuring honesty in providers of services and protection to consumers, thus as mentioned, the maximum terms are substantial fines. 9. I take into account the victim impact statements. The victims involved in the end they lost their trust, they felt ashamed at being duped and gullible, they were embarrassed and disappointed, their businesses suffered. They chased up the refunds or work only to be fobbed off at different times. It seems to me, Mr Michael, both in correspondence sent to the court and to the OPP and in oral submissions here there is a lack of empathy with the victims notwithstanding directly saying that you are empathetic to them. It seems that on the contrary you blame them for their failures. You do not have remorse to mitigate your offending. 10. Of note the offending is now very dated and you have been before the courts for some time. You have had difficulties with respect to legal representation. The overall impact on you and your capacity to recover your business reputation is a matter I have taken into account in the overall sentencing synthesis. With respect to your mental health, I note you are receiving some counselling and I have read the letter provided by Beebs Brownlie, a counsellor connected with Uniting Victoria who says that you have registered as a participant for disability employment services for ongoing physical and mental health concerns, in particular with recent escalations in your depressive symptoms due to this ongoing court case. This was written in March 2024. 11. Your counsellor says you would greatly benefit from being referred to appropriate mental health interventions. Your own health has been concerning. You have suffered cardiac issues. What is urged by the prosecution is a substantial fine with conviction. You urge a lesser penalty, that being an adjourned undertaking and one without conviction or a moderate fine without conviction. 12. You in fact have a prior criminal history not related to business practices but nonetheless serious offending which saw a prison term imposed that was in the end suspended. Those offences were in 2015 and 2016. Given the penalties involved, there were convictions and there has been another conviction fine imposed in 2016, as well as earlier matters back in 2010 and 11 which were without conviction adjourned undertakings, but they were brought back before the court because you breached the undertakings. 13. In the end and in my view given the gravity of the offending and given the fact of your prior convictions, it is appropriate that the penalty that I impose is one with conviction. There is a need for general deterrence and there is a need for deterrence to you, the gravity of the offending and the moral culpability involved, your persistence is such that the overall promotion of the purposes of consumer laws requires that there be a conviction. 14. What I indicated was there would be a fine, a global fine of $6000 with conviction together with an adjourned undertaking for Charge 5. I impose that penalty now, that is with conviction for Charges 1 to 4 there will be a fine of $6000 and Charge 5 are without an adjourned undertaking for 12 months with conviction. That document needs to be prepared. 15. Is there anything else required Ms Hamnett? 16. MS HAMNETT: Your Honour, there is just the draft compensation order which was filed on the 25 June. 17. HIS HONOUR: Yes. 18. OFFENDER: I understand that's not connected to with the plea. 19. HIS HONOUR: I do not know what that is. I will just hear Ms Hamnett out. 20. MS HAMNETT: Yes, so that order is sought, although it's not - - - 21. HIS HONOUR: So, you seek an order for compensation? I don't presently have it right in front of me. Can you help me? 22. MS HAMNETT: I can hand up a copy to Your Honour. 23. HIS HONOUR: Yes, thanks. 24. OFFENDER: Defence don't have a copy of that. 25. HIS HONOUR: Yes. 26. OFFENDER: I've never received it. 27. HIS HONOUR: You have provided it I imagine? 28. MS HAMNETT: Yes, it's been provided in the past. 29. HIS HONOUR: You will get a copy, Mr Michael. 30. MS HAMNETT: It can be shown to Mr Michael as well. 31. HIS HONOUR: Yes, all right. Who is it to be paid to? Each of the people? 32. MS HAMNETT: Yes. 33. HIS HONOUR: Yes, all right. Have you got all their addresses? 34. MS HAMNETT: Yes. So - - - 35. HIS HONOUR: Do they know that? 36. MS HAMNETT: They would have been consulted. 37. HIS HONOUR: Anyway. So, Mr Michael, this is an application made pursuant to s86 of the Sentencing Act, that is, that compensation be paid by you to each of the individuals $2035. Do I take it from what you just said then that you oppose this order? 38. OFFENDER: At this stage, yes. That's not part of the sentencing indication that was discussed. 39. HIS HONOUR: All right. Can you file documentation required for a hearing that might come before me, it might go to another court, but if he opposes it then you need to run a hearing. 40. MS HAMNETT: Yes, thank you, Your Honour. 41. HIS HONOUR: Pursuant to that s86. That's a Sentencing Act matter. 42. MS HAMNETT: I appreciate that it can't be dealt with today and there are also policy considerations around where it's opposed by a defendant. 43. HIS HONOUR: Yes. Yes, all right. 44. MS HAMNETT: So it may not come to that. 45. HIS HONOUR: You will take that into account? 46. MS HAMNETT: And it will be taken into consideration. 47. HIS HONOUR: Thank you very much. All right. That matter, the application by the Director of Public Prosecutions for orders of compensation pursuant to s86 of the Sentencing Act is adjourned to a date to be fixed. All right. Anything else? 48. MS HAMNETT: No, Your Honour. 49. HIS HONOUR: Thank you. Have you got the undertaking document? Maybe it can be drafted by - - - 50. MS HAMNETT: We can speak to your associate about that. 51. HIS HONOUR: Just bear with me. It's just being printed now. Mr Michael, the Charge 5 is a slightly different charge that relates just to one complainant,

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