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DPP v Mardirian [2019] VCC 1551

sentence — 3 charges of being an undischarged bankrupt and obtaining loans of more than $3,000 without advising the lender that you were an undischarged bankrupt offences contrary to s 269(1)(a) of the Bankruptcy Act 1966 (Cth) — offences relate to loans of $955,000, $900,000 and $560,000 respectively — a similar offence relating to a loan of $17,000 was taken into account pursuant to s 16BA — nature and circumstances of the offence — s 16A(2)(a) — antecedents — s 16A(2)(m) — criminal record of multiple counts of obtaining property by deception in 2002 and 2019, the latter for which offender currently serving sentence of 3 years with a 2 year non-parole period — whilst strictly not prior conviction, relevant to offender’s moral culpability for this offending — offending occurred during offender’s fourth bankruptcy, so offender fully aware of obligations towards creditors as a bankrupt — total quantum makes offending serious — enhancing seriousness is that it involved a large amount of money and personal vulnerability on the part of the victim, and breach of trust arising out of victim’s personal relationship with offender — further aggravating features of offending are that offender used bank account in name of someone else to accept deposits and motivation for offending was nothing but greed — guilty plea — s 16A(2)(g) — contrition — s 16A(2)(f) — relatively late plea given matter was listed for trial before plea offer was made and matter was subject of contested committal, but some utilitarian benefit in the plea as obviated the need for a trial — guilty plea also some evidence of remorse — hard to see any real empathy towards victim here, but sentencing judge did take it into account — rehabilitation — s 16A(2)(n) — delay — delay has meant no offending since these offences and thus enhances offender’s prospects of rehabilitation — offences hanging over offender for a lengthy period — given assessment of moral culpability, sentencing judge regarded prospects of rehabilitation as being guarded, particularly given prior convictions — totality — while sentencing judge accepted 3 offences involved a single course of conduct, they also involved a number of individual transactions within that period and offending occurred over lengthy period — separate offending should be reflected in some cumulation between the individual accounts — sentencing judge had regard to current sentence and considerations of totality, looking at criminality involved in overall offending, stepped back and applied principles of parsimony and proportionality in fixing total overall effective sentence — general deterrence — s 16A(2)(ja) — specific deterrence — s 16A(2)(j) — general deterrence very important to maintain integrity of bankruptcy law without which there would be serious public disadvantage of various economic, commercial and social kinds — sentence must send signal to those under state of bankruptcy to be conscientious in dealings with creditors — specific deterrence also relevant due to prior offending — sentence imposed 3 years’ and 9 months imprisonment with a 2 year and 6 month non-parole period — reparation order of outstanding amount of $1,796,241.58 to victim
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