R v Petrovic [1998] VSCA 95

Court of Appeal (Vic)|1998-10-22|Before: TADGELL, ORMISTON and CHARLES, JJ.A.

The applicant, who is now aged 39, was presented on 16 February 1998 before the County Court at Melbourne and pleaded guilty to a presentment containing nine counts of obtaining property by deception (counts 1, 2, 7, 8, 9, 10, 13, 14 and 15), two counts of burglary (counts 3 and 11), two counts of theft (counts 4 and 12) and one count each of forgery (count 5) and uttering (count 6), both contrary to s.67B of the Crimes Act 1914 (Cth). The applicant had no prior convictions.

A plea was heard on the same day, during which a clinical psychologist, Dr Peter Cook, was called and gave sworn evidence including a diagnosis that the applicant was a pathological gambler. The learned judge also received a letter dated 15 May 1997 from Ms Susan Gavan, a counsellor with Break Even Problem Gambling Counselling Service.

The circumstances giving rise to these offences were as follows. The applicant commenced playing poker machines socially with her husband in 1994. Unfortunately this soon became an addiction, and the applicant consulted a financial adviser late that year. The applicant was made redundant in her position with the Department of Health in May 1995 and from her redundancy package of $30,000, half was spent taking a family trip back to Yugoslavia, and the other half helped her resolve her then financial difficulties. Upon her return from Yugoslavia, however, the applicant began to gamble heavily and by late 1995 she was unable to make mortgage repayments or meet household bills. She consulted the Break Even Problem Gambling counsellors without the knowledge of her family, but discontinued this service when questions were asked about mail received by her from that organisation. To drag herself out of the financial difficulties she had created, the applicant then devised an elaborate plan to get access to large amounts of money by obtaining a number of fraudulent loans. In the process she took advantage of her friends and neighbours, the Jutrisa family.

On 13 November 1995 the applicant obtained and completed an ANZ Telstra application form for a Visa credit card in the name of Kata Jutrisa. She signed it with the forged signature of Kata Jutrisa and lodged it with the ANZ Bank. The bank then processed the application in the belief that the applicant for the card was Kata Jutrisa and issued the card to the Taylors Lakes branch of the ANZ. On 11 January 1996 the applicant attended at that branch and produced a forged letter of authority signed by her as Kata Jutrisa, allowing her to pick up the Visa card. She obtained the credit card after first signing the Customer's Acknowledgment Form in the presence of the branch manager. Between 12 January and 11 March 1996 the applicant used the credit card and made numerous transactions to a total value of $5,679.10. These events gave rise to counts 1 and 2.

Between 1 January 1996 and 1 March 1996 the applicant went to the house of Mrs Jutrisa at 19 Minerva Crescent, Keilor Downs, when the house was empty. She entered through an unlocked door, and stole the Certificate of Title, a plan of subdivision, an original blueprint, a caveat and a safe custody lodgment joint account, all relating to 19 Minerva Crescent. She knew before entering where the documents were kept. The applicant used these documents to obtain a mortgage against the property through some solicitors and a mortgage broker, arranging the mortgage as if she were Kata Jutrisa, with herself as guarantor. The property was initially mortgaged for $50,000, but the applicant raised this amount to $70,000 and ultimately mortgaged the property for $100,000, cheques being given to her for this amount. To hide what she had done, the applicant went to the Taylors Lakes Post Office and filled out a mail re-direction form in relation to the property at 19 Minerva Crescent, and thereafter retained any mail relating to the mortgage sent to this address, but hand-delivered routine mail by herself. The applicant listed her own home telephone number as the home number of 19 Minerva Crescent so that any questions would be directed to her and not to the true owners. The applicant also obtained an Australian Money Order for part payment of brokerage fees to the mortgage broker in the amount of $200. She then changed the money order to read $500 and forwarded payment on 22 February 1996. The forgery was detected when the money order was lodged at the Hawthorn Post Office. As a result of the applicant's actions, the title to 19 Minerva Crescent became security for the mortgage debt. We were, however, informed during the hearing that the dispute as to title has now been settled, with Mr and Mrs Jutrisa being relieved from the mortgage. The applicant spent approximately $30,000 from the amount she had thus obtained on outstanding bills, with the remainder of the money being used to finance her gambling habit over a period of six months. These events gave rise to counts 3 to 7.

On 17 September 1996 the applicant organised a second mortgage against 19 Minerva Crescent in the sum of $16,000 through Nexus Mortgage Securities Pty Ltd. She presented as the owner of the property and signed and acknowledged all documents and two statutory declarations as Kata Jutrisa. She received a sum of $16,000 by cheque for this mortgage (count 8). To obtain the second mortgage, the applicant was contacted on her own telephone number to arrange a property valuation, which she organised for a time when she knew the house would be empty. A valuer attended at the premises on 23 September 1996 and took a series of photographs in which the applicant could be seen pretending to be the owner of the premises. The applicant's reason for committing this offence was to finance her daughter's wedding, half the money being used for this purpose.

On 30 December 1996 the applicant made a telephone application to the Bendigo Building Society for a $19,000 loan purportedly to purchase a used car. Several details on the loan application were incorrect. She said that she was renting from a Mr Ivic at 44 Sarranvale Crescent, Sydenham, and changed the address on her driver's licence to produce it as false proof of her residential address. In fact the applicant owned her own premises at 10 Morris Drive, Keilor Downs, the property at Sydenham being purchased by her daughter, Julianna Ivic, the house not yet having been constructed. When the applicant went to the Sunshine branch of the Bendigo Bank on 13 January 1997 to obtain the loan, she was told that proof of pay and rent conditions had yet to be provided, and then wrote out three fraudulent rent receipts signing the receipts as "V. Ivic" and presented these to the bank. She was then handed a cheque in the sum of $19,000 (count 9). The applicant said that she used a small part of the money to pay bills, gambling with most of it.

Count 10 involved a visit by the applicant and her married daughter, Julianna Ivic, to the Niddrie branch of the Bendigo Bank. Ivic applied for an unsecured personal loan from the bank, several details in the application being incorrect, including statements that Ivic was single, that she rented from a Mr Petrovic, and that she was working for Toolwood Properties rather than Kentucky Fried Chicken. The application stated inflated amounts for the value of contents insurance on the price of rent paid. The applicant produced two fraudulent wage packets and fraudulent rental receipts as well as omitting other relevant material. The applicant and her accomplice daughter were advanced a loan of $19,000 by way of a bank cheque for $18,000 and $1,000 in cash. Of the $19,000 Julianna Ivic received a few hundred dollars and the balance went to the applicant.

On 17 March 1997 the applicant made a telephone loan application, as Kata Jutrisa, to the Bendigo Bank for approximately $19,000. She gave the false address of 22 Minerva Crescent, Keilor Downs, and supplied the bank with the documents she had previously taken from the Jutrisas' house to substantiate the loan. She was asked to supply further documentation including pay slips, Commonwealth Bank account details and other items. She then went to 19 Minerva Crescent and stole an Australian Medicare Card, a Commonwealth Bank book and two pay slips (counts 11 and 12), and faxed these documents to the bank, signing as "K. Jutrisa". On 7 April the applicant went to the Collins Street branch of the bank and signed all relevant documentation as Kata Jutrisa, immediately withdrawing the money in cash as to $1,500 and in a cheque for $16,000 payable to Z. Petrovic; and she withdrew a further $1,500 in cash on 10 April 1997 (the three such sums making up count 13). Again the applicant's reason for these offences was to finance her gambling addiction.

On 19 March 1997 the applicant made a telephone loan application to the Bank of Melbourne for $8,000, pretending to be Kata Jutrisa. She claimed that the money would be used to pay wedding expenses and forwarded the documentation she had stolen from 19 Minerva Crescent. She also produced an income tax return of Stjepan Jutrisa, which she had taken under false pretences with the knowledge of the Jutrisa family. She also forwarded the Telstra ANZ Visa card, which is the subject of count 1. The loan was duly granted by the Bank of Melbourne and on 24 March the applicant went to the Gladstone Park branch of the bank and signed all relevant documentation as Kata Jutrisa. The applicant was given a $5,000 cheque and $3,000 in cash (count 14). She then deposited the cheque as Kata Jutrisa into an account held by her mother, Marija Boban, with the Bank of Melbourne, while Mrs Boban was overseas. She then withdrew the moneys over the next two days, forging Mrs Boban's signature on the withdrawal slip. Again she blamed her gambling addiction for her offending.

Count 15 related to the applicant in April 1997 depositing two cheques in the sum of $3,115.95 into a Commonwealth Bank account held in the name of Lucy Jutrisa. She then withdrew $3,000 using Lucy Jutrisa's keycard. The cheques were subsequently dishonoured. Thereafter, the applicant, having received moneys from a fraudulent loan into her National Bank account, deposited a cheque in the sum of $3,200 into Lucy Jutrisa's account, thereby negating the previous withdrawal for $3,000. The Jutrisa family alerted police that something was awry and the suspicious dealings were then linked to the applicant.

During the plea Dr Cook gave evidence to the effect that the lengths to which the applicant had gone to obtain gambling money indicated that she was a pathological gambler. He said she was suffering from depression, which was commonly a feature of such an addiction. He said that the fact that the applicant had not gambled since her arrest was a positive sign in terms of her future prognosis.

The victim impact statements made by Kata and Stjepan Jutrisa demonstrate their sense of betrayal and shock at the person they regarded as a friend committing these offences, and the looming threat to their financial and household security which they had achieved over long years of hard work. The Jutrisas claimed they were then experiencing relentless pressure from financial institutions and had incurred substantial legal costs in defending their home. The applicant has, not surprisingly, lost her friendship with the Jutrisa family, and her activities may well have destroyed her family relationship. She is now separated from her husband although they live under the same roof. She plainly has experienced considerable regret and shame.

The applicant seeks leave to appeal against sentence on the grounds that -

1. The learned judge failed to give appropriate weight to the early pleas of guilty and lack of prior convictions of the applicant.

2. The learned judge failed to give appropriate weight to factors personal to the applicant.

3. The learned judge failed to give appropriate weight to the fact that the applicant was diagnosed as a compulsive gambler.

4(a) The learned sentencing judge placed too much weight on principles of retribution.

4(b) The learned judge placed too much weight on principles of general deterrence.

5. The learned judge failed to set a commencement date of imprisonment in respect of counts 5 and 6.

6. The learned judge placed too much weight on the victim impact statements.

7. The sentence in all the circumstances was manifestly excessive.

Ground 5 can be put to one side immediately. It is concerned with the requirements in s.19 of the Crimes Act 1914 (Cth), which obliges a judge sentencing for a federal offence to direct when each sentence should commence. I accept that the learned judge in the present case should technically have made such a direction. But his Honour's sentencing reasons make it perfectly clear that the sentences were all to be served concurrently and that the sentences imposed on counts 5 and 6 were therefore to commence on the date on which they were imposed. The failure to comply with s.19 did not, in my view, invalidate the sentences imposed, particularly in light of s.16E of the Commonwealth Act and s.17 of the Victorian Sentencing Act.

Ground 6 can also be rapidly dismissed. It claims that too much weight was placed on the victim impact statements, and the ground is directed to his Honour's saying of these statements that "they speak of the harassment the victims have both suffered as a result of the threat posed to their house by [the applicant's] actions". When the victim impact statements were tendered during the plea, no objection was taken by defence counsel to any part of the statements, nor did counsel seek to cross-examine upon them. The comments made by his Honour upon these statements do not suggest to me that any impermissible weight was given to them.

I turn then to grounds 3 and 4. Mr Salek, who appeared in this Court for the applicant, submitted that, since the applicant suffers from a pathological gambling disorder, accordingly the issues of retribution and general deterrence should be placed in the context of actions that are motivated by an innate addiction. This, it was argued, lessens the applicant's moral culpability compared with other offenders who commit offences of dishonesty motivated by pure greed. On the other hand Ms Carlin, who appeared for the Crown, put it that the learned judge's repeated references to the applicant's gambling addiction and the fact that it provided the motivation for her offences showed that the relevance and weight attributed to the applicant's gambling addiction by his Honour were consistent with established principle.

The fact that an offender was motivated to the commission of the crimes in question by an addiction to gambling will, no doubt, usually be a relevant, and may be an important, consideration for a judge sentencing the offender for these crimes. But as Tadgell, J.A. said in R. v. Cavallin (unreported, Court of Appeal, 24 July 1996) at 10 -

"It is ... important that the public does not assume that a crime which is to some extent generated by a gambling addiction, even if it is pathological, will, on that account, necessarily be immune from punishment by imprisonment."

It is considerations such as these which have led this Court to say more than once that it will be a rare case indeed where an offender can properly call for mitigation of penalty on the ground that the crime was committed to feed a gambling addiction; see R. v. Scott Aiden Dawsan (unreported, Court of Appeal, 27 May 1997) at 6; R. v. Gregory Frank Pascoe (unreported, Court of Appeal, 29 April 1998) at 4-5.

It was established, clearly enough, that the applicant had a pathological gambling disorder and that it was this condition which provided the principal motivation for the commission of the present offences. But despite Mr Salek's forceful arguments to the contrary, I would accept Ms Carlin's submission that no error is to be found in the approach taken by the learned judge to the question of the applicant's gambling addiction.

Under grounds 1 and 2 Mr Salek emphasised the applicant's early pleas of guilty, her lack of prior convictions and her genuine remorse. The applicant had, until the offences, led a hard-working and productive life, had married at the age of 16, and had four children who are now aged from 11 to 22. In these matters, Mr Salek said, she had shown herself to be a hard-working, devoted mother and, save for these offences, completely law-abiding. Each of these matters will be considered further under ground 7. Before I turn to that ground, however, I should say that the learned judge made repeated reference during the plea and in his sentencing reasons to the applicant's previous good character, to her early pleas of guilty, her lack of prior convictions, the full admissions made when she was arrested, and her genuine remorse. As Ms Carlin submitted, it could not be said that his Honour failed to give careful consideration to any of these matters. I have no doubt that the guilty pleas and the applicant's admissions greatly facilitated the overall investigation of her offences and avoided the necessity for a lengthy trial. But, although she was entitled to, and, I think, received, careful consideration of this mitigatory factor, her co-operation and her pleas were given after a search warrant had been executed at her house, and after the discovery of many documents linking her to these transactions, which can have left her with no doubt that she was facing an overwhelming Crown case. As to her previous good character, this Court has on numerous occasions noted the melancholy fact that offences such as occurred here are not infrequently committed by persons of apparently good character, which in turn leads to general deterrence necessarily playing an important role in the construction of an appropriate sentence.

The question which remains is whether the sentences were manifestly excessive, an issue which must be considered bearing in mind the submissions already made under grounds 1 to 4. In the course of the 17-month period spanning November 1995 to April 1997, the applicant obtained by various fraudulent means a little under $190,000. In doing so she misrepresented herself to, and otherwise deceived, the ANZ Bank, the Bendigo Bank (on at least three separate occasions), the Bank of Melbourne, the Commonwealth Bank, Nexus Mortgage Securities Pty Ltd and McDuff Thomson & Associates, as well as a firm of solicitors, Hicks & Oakley. She entered the house of her friends, Mr and Mrs Jutrisa, when they were absent, on at least two occasions and stole title documents and other personal records necessary to enable her to pass herself off as Mrs Jutrisa for the purpose of subjecting her friends' house property to two separate mortgages without their knowledge and to obtain loans as Mrs Jutrisa. She went to their house on a third occasion, when they were absent, with a valuer and obtained a valuation representing herself to the valuer as the owner. She had the mail of the Jutrisa house and another house in Minerva Crescent redirected to ensure that the householders would not become aware of her activities. She impersonated Mrs Jutrisa and forged her signature on many occasions to obtain these fraudulent loans and in the process left the Jutrisa family with two mortgages over their house which threatened the security and stability of the life they had built up over 27 years. The offences took place over some 17 months. They were well-planned, premeditated and highly sophisticated, and involved significant and continuing breaches of trust.

This is a particularly sad case for the applicant's children and for her husband, for the Jutrisa family, and indeed for the applicant herself. But in the light of all the circumstances I have mentioned, notwithstanding Mr Salek's able and comprehensive submissions, I cannot say that the sentences imposed were manifestly excessive.

I agree. I shall add only a few words on the matter of the applicant's gambling addiction. A steady indulgence in gambling requires a ready supply of money. A compulsive gambler can either financially afford the pastime or not. If not, other people's money will necessarily be used to feed the addiction. Being thus in need of other people's money, the addict will resort to criminal dishonesty to obtain it.

Only in an exceptional case will the courts be required to treat criminal conduct of this kind as appreciably mitigated for the purpose of sentencing by the nature of its motivation. In my opinion this is not such a case. It is notable that since the applicant was arrested she has, without apparent difficulty, desisted from her gambling habit. She apparently expressed relief that her arrest on 5 May last year brought her gambling conduct to a halt.

The community should not expect, nor should it have to tolerate, a weak attitude by the law to crimes that have been generated as this applicant's were. They deserve condign punishment, and the message to be sent to the community by the sentence passed in respect of them must be clear.

Taking account of all legitimate and appropriate mitigating and other factors, I am unable to conclude that the sentencing judge erred in this case. I too would dismiss the application.

I agree. If anything, I would consider the sentences, both the individual terms imposed and the total effective term, as well as the non-parole period, were too modest, but the learned judge was in the best position to reach the conclusions that he did. I therefore would dismiss the application.

The application for leave to appeal against sentence is dismissed.

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