STATE OF TASMANIA v GARRY LEE FULLERTON GEASON J
COMMENTS ON PASSING SENTENCE 12 JUNE 2020
Mr Fullerton, you have pleaded guilty to a number of offences of dishonesty.
On 57 occasions between 2 June 2014 and 5 April 2018, you used 19 different aliases to obtain and attempt to obtain credit cards, personal loans, finance and store credit accounts with financial institutions and credit providers using false supporting identification and financial information and forged documentation. On 21 occasions, your applications were successful and, as a result, you used the credit to purchase goods and services and in the case of credit cards, withdrew cash, utilising the cash advance facility. Your conduct with respect to these applications resulted in you dishonestly acquiring a financial advantage of $346,035.
On 36 occasions your applications for credit were unsuccessful and resulted in you attempting to dishonestly acquire a financial advantage of $766,827.
In addition, on 10 occasions in this period you used 6 aliases and false identification documentation to induce various banks and financial institutions to open savings, check, and visa debt accounts in false names. On 5 occasions in that period you used 4 aliases and false identification and financial information in applications for credit cards which were issued to you with various credit limits under false names. Despite not using these credit cards you gained a benefit of $78,000 when they were issued to you, which is the total of the credit limits across the five credit cards. In respect of the fraud charges had the various financial institutions known that you were using false and forged identification documentation in support of your applications they would not have authorised the opening of the savings and credit card accounts. There has been no loss caused as a result of these frauds.
You have committed 72 different acts of dishonesty and fraud using 19 different aliases as follows: Terrence West or Terry William West or Terry West; Rex Gregory Parker or Rex Parker or Rex Mark Parker; Brian Brent Jefford or Bryan Jefford; Terry Selwyn Baxter; Donald Wayne Gregg; Willem Jan Erkelens; Ronald Pearson Brandt; Bruce Macklam; Raymond Eric Dean; Eric Dean; Peter Edward Robertson; Wayne Christopher Keen; Dr Adam Wade Fynn; Thomas Sean Kent; Todd David Whall; Lloyd Carl Murray; Jarred Dent; Kevin Todd Craig; Rodney William Harlan.
Your conduct on each of the 72 occasions was similar in that you made an application online or in person to financial institutions and credit providers. The information provided in the application used a false identity with a date of birth within a date range of approximately 10 years to your own. You also provided a residential address which you did not reside at but to ensure receipt of the correspondence you applied for a mail redirection to a post office box. Over the four year period you used 12 different post offices boxes in the Launceston area. Some of the post office boxes were used by you for more than one false identity.
You always used different mobile phone numbers and email addresses in each application. Over the period you had 29 different mobile phone numbers and 22 different email accounts. The mobile phone contact number for your purported employer was a number you had obtained using one of your aliases. You used the same personal details in each application relative to the particular false identity. You provided the financial institutions and credit providers with supporting documentation in the form of bank statements, driver’s licences, payslips, Medicare cards, birth certificates, utility accounts, and Australian Security and Investments Commission and Australia Taxation Office documents which were false or forged.
Once a credit card was issued to you, you would sometimes make small repayments so that your use of the card did not initially go over the credit limit to ensure you could continue to use it. However, the money for those repayments came from the cash withdrawn using the cash advance facility on each of the credit cards as you were not employed during the period, nor were you in receipt of any Centrelink benefits.
Once you had exhausted the credit limit made available to you under one credit card you would then apply for a further credit card using an alias, but with a different financial institution. Your conduct first came to the attention of Tasmania Police on 8 August 2016, but you were not spoken to at that time. On that date police were contacted in relation to a 2015 Mazda BT50 utility that was parked on a vacant block at Relbia. The vehicle was registered to a New South Wales company O8O8O8 Pty Ltd and it was established that it had been purchased by a Peter Edward Robertson from Mazda Burnie with the finance provided by MyState. This is the subject of count 37. Investigations led police to St Leonards and it was established that a person by the name of Terry West had been sleeping on a couch at that property since at least 15 May 2016. A resident of the property told police that he knew you as Terry West, and you owned a new Mazda BT50 utility.
You had told him that you were a businessman who had previously lived in New York, owned a mansion there and had millions of dollars until you lost it all. You also said that you were planning to start a business in Spain and when you left you would give him the utility in exchange for him collecting your mail from the post office boxes and forwarding it on to you. This arrangement was dependent on him taking over as a director of the company 080808 Pty Ltd which was the only way you said that the utility could be transferred into his name. All the documentation in relation to this was signed and forwarded to ASIC. After the police had been to the St Leonards Road property he contacted you and told you that the police wished to speak to you. You told him to get rid of your possessions. He became suspicious of your activities and sought the assistance of his father. In the suitcase there were bundles of false and forged documents including bank statements, driver licences, mobile phone accounts and bank loan applications relating to 10 separate identities. All of your possessions were then handed to Launceston police.
A forensic examination of the documents revealed nine fingerprint matches on various documents which matched you. The matters were not investigated further at that stage as your whereabouts was now known by police. Knowing that the police were looking for you, on 16 November 2016 you left Tasmania and lived in Victoria, South Australia and New South Wales. You eventually returned on or about 1 February 2017 and within three days of your return you successfully applied for a credit card with the National Australia Bank using a different alias, which is the subject of count 18.
In January 2018 police were advised by the manager of the Legana Post Office of the suspicious conduct of a male person who was using a post office box which had been registered in the name of Thomas Kent but was receiving correspondence in various aliases, namely Todd Whall, Thomas Kent and Willem Erkelens. At this time police were not able to establish where Mr Kent was living, but did establish that he was also using the alias of Eric Dean.
On 12 April 2018, police were notified of a male person who had been admitted to the Launceston General Hospital Intensive Care Unit, and hospital staff were wanting to contact a next of kin, but could not confirm who the male person was. At the time of admission, you were in possession of a Victorian drivers licence for Rex Grossman Parker, date of birth 28 July 1968, and a European drivers licence in the name of Peter Harris Glenn, date of birth 20 August 1968, both which contained photographs of you. A Commonwealth Bank and Westpac card in the name of Rex Parker was found, as well as a New Zealand Passport in the name of Kevin Todd Craig.
On 17 April 2018, police executed a search warrant at the Launceston RSL. A search of the room where you had been staying resulted in police locating credit and debit cards for 15 different financial institutions and in the names of 19 different persons as well as 5 Medicare cards. They also found 20 current drivers licences all depicting you, but in 16 different names. The drivers licences were of excellent quality and could easily be passed as genuine. Affixed to a notice board was a South Australian drivers licence and an ANZ credit card in the name of Todd Wall. Police did not find any documentation in the name of Garry Lee Fullerton.
Police also located several piles of documents which contained forged bank statements, correspondence from banks and credit providers and forged birth certificates. Many of the documents showed evidence of being forgeries as they included a name and address stuck on or pasted over the original name and address. In addition, the police found 20 passport drivers licence-style photographs of you, 17 rear templates of Victorian drivers licences, 3 blank Medicare card templates, 2 blank copies of the rear of a Medicare card template, 2 copies of a blank Victorian drivers licences featuring a photograph of you, 1 blank South Australian drivers licence featuring a photograph of you, 1 blank Tasmanian drivers licence featuring a photograph of you, an Acer laptop, 2 USBs, a scanner and printer, a mobile phone, 3 post office box keys for PO Box 16 Hadspen, PO Box 127 Legana and PO Box 301 Riverside, a container of stationary items, including scissors, glue, white-out, sticky tape and different coloured pens.
A forensic examination of the room resulted in a fingerprint match for you. On 20 April 2018, you discharged yourself from the Launceston General Hospital. Shortly after your discharge, police located you at a hotel next to the Launceston RSL where you were arrested.
Subsequent investigations by police revealed over 700 images of drivers licences, birth certificates, Medicare cards, bank statements and pay advice slips for various employers. In addition, all email addresses and some emails linking you to the frauds committed on the financial institutions were located. A forensic examination of the USBs revealed more documents linked to the aliases used by you, which were mostly drivers licences and blank Medicare card templates. A diary that contained numerous notes relating to 9 of the false identities and applications that you had made in the 2017/2018 financial year. The company O8O8O8 Pty Ltd, trading as Abita Springs, was a company that you registered with the Australian Securities and Investments Commission using the alias of Raymond Eric Dean. The company did not operate in any commercial aspect whatsoever.
When you were interviewed by police you told them your correct identity, you agreed that you were in possession of the cards and licences which had been located in the room where you were living, and you said that they had been obtained by another person who owed you money. You denied defrauding financial institutions claiming that you had been living on $50,000 to $60,000 which you had in cash. Your reason for having so many mobile phones was put down to the fact that some worked, and some did not, and that they were cheap phones.
You admitted making the application subject of count 9 in the indictment, and you told police that you had been using the card which you obtained in that count, to purchase alcohol.
You claimed that the computer found in your possession belonged to the same third party who you had identified as being the source of the false identity documents. You were asked whether you had used the computer to create fraudulent or forged documents and told police that you might have written a few documents up, but that you only did so for a work reference.
You agreed that you had very few possessions and stated that you were an alcoholic, and that your life was very bleak.
You have been in custody since your arrest on 20 April 2018, a period in excess of 2 years.
In mitigation, Mr Hensley, emphasises the issue of alcohol and drug abuse as central to your offending.
The very fact that for all of the money you have obtained you are in possession of very little of any value, is consistent with the submission that most of it has been spent on consumables such as alcohol and drugs, and also in obtaining accommodation.
Mr Hensley told the Court that the cards were used primarily for the purchase of alcohol, and cash withdrawals which were used for the drug purchases. He submits that some of the drugs and alcohol were consumed by others, even though you had paid for it.
The major exception to that pattern, though not the only one, involves the use of money for the purchase of motor vehicles. I have already referred to the purchase of a Mazda utility from a business in Burnie. Your use of motor vehicles was limited, suggesting that their purchase did not reflect any particular need for you to have a vehicle. It makes your behaviour, and the extent of it difficult to understand. Whilst I accept that you abuse alcohol and have used drugs, and that the proceeds of your offending have been largely applied to such pursuits, I have an impression based on the extent of your offending, and noting that this offending is not the first time you have engaged in such behaviour, that you derive some personal satisfaction from the challenge of engaging with these various institutions and the success of obtaining credit from them. The level of effort involved in the production of false documents, and the various interactions required in order to successfully obtain funds, and your pattern of engaging in this behaviour over a number of years, suggests that this is a driven or compulsive behaviour. The fact that your counsel has advised me that you will not engage with psychologists or psychiatrists for the purpose of assisting the Court to understand your behaviour better, means however that this is merely my observation and no more. In the circumstances, the Court has no insight into you and the motivations and urges behind your offending. I would have investigated this aspect further had there been an opportunity to do so. When you were sentenced in the Victorian County Court in 2000, there was a claim made on your behalf of mental health concerns. There was a report obtained on that occasion but the contents of the report were not accepted by the sentencing judge.In the circumstances of your reluctance to engage there is no evidentiary basis for the Court concluding that there are any reasons for considering the application of principles articulated most recently in Verdins, in your case.
It is put to the court that you were the victim of significant and regular sexual abuse as a child and a young adolescent. I was told that this abuse led to your becoming estranged from your family, and abandoning your surname by the time you had reached your mid-teens. Your habit of going by an assumed name began for those reasons, at an early age, and before there was any dishonest intent associated with it. But it is put that it was through that process you eventually discovered the advantage of adopting a fake persona for pursuing your dishonest financial purposes.
Mr Hensley submits that you have not recovered from the trauma arising from the crimes perpetrated against you as a young man, and says that you turned to alcohol and drugs; mostly heroine in your younger days, but methyl-amphetamine in more recent times, as a way of numbing yourself, as he put it, and avoiding the need to confront or deal with trauma.
In assessing the objective seriousness of your offending, the very deliberate nature of your behaviour and the careful and calculated way in which you undertook your offending is relevant. Your crimes required careful planning and diligent execution. None of this is out of character for you. You have relevant and significant prior convictions in Queensland, Victoria and New Zealand and you have spent time in prison in all three places for significant frauds. In Queensland you were convicted in March 1993, for 19 charges involving the misappropriation of property and you were sentenced to 3 years’ imprisonment with a non-parole period of 12 months. After you were released from prison in Queensland, you committed further offences of dishonesty in Victoria for which you were convicted on 27 October 1995. You were convicted of 2 counts of obtaining a financial advantage by deception, and some other offences of dishonesty relating to false documentation. You were sentenced to 4 years’ imprisonment with a non-parole period of 2 years.
Whilst you were on parole for those offences, you committed further fraud related offences in Victoria under a different name. You were extradited from New Zealand so that those charges could be dealt with. You pleaded guilty to 5 counts of obtaining a financial advantage by deception, and 4 of attempting to obtain a financial advantage by deception. You were sentenced to 4 years and 4 months’ imprisonment with a non-parole period of 3 years.
The Crown has provided me the comments on sentencing in respect of those matters, and it is evident from them that your conduct exhibits many of the same features exhibited in the offending I am dealing with today. Upon your release from prison in Victoria you returned to New Zealand where you commenced offending again in similar circumstances. There you assumed a number of identities to obtain more than $550,000 in mortgages, and more than $38,000 from credit cards. You also made fraudulent claims in respect of goods and services tax, resulting in your obtaining $42,000 or thereabouts.
You are not to be punished again for those matters, but they are relevant to the assessment of your character, and they also demonstrate that the drivers behind your offending are not deterred by lengthy prison sentences. It can be said with some certainty that the sentences imposed upon you in the past have had no deterrent effect upon you. But as to that, the years have caught up with you. Mr Hensley tells me that your personal circumstances now are such that further offending is less likely. I cannot ignore the fact that offending of this sort does not require the same level of mobility as other categories of crime, but I do accept that your health has deteriorated to the point where the submission that you are essentially incapable of offending in any meaningful way in the future, is a sustainable one. Your heart is significantly weakened, to the extent that you spend up to 23 hours a day in bed. You apparently sleep 16 to 17 hours per day. Essentially you only emerge to go to meals. Again the Court is without the benefit of any professional assessment of your physical condition because of your reluctance to engage with medical practitioners.
It is not put to me that your medical condition gives rise to particular concerns in the context of COVID-19 and your being imprisoned. It is submitted that prison is more difficult for you, and that you fear contracting that illness. I note however that you are accommodated in a separate section of the prison in consequence of your health conditions.
I have decided having regard to your health, your early plea of guilty, and your age, that I should ameliorate the sentence I would otherwise have imposed. In sentencing you, I accept that this was an early plea of guilty and the utilitarian benefit which accrues as a result of that early plea is significant in a case as complex as this one. I will discount the penalty I would otherwise have imposed by 20% in recognition of that utilitarian benefit. General deterrence looms large in fixing a penalty for you, as does the need to punish you. As I have said, this was a sophisticated course of conduct engaged in over a considerable period of time which gave rise to significant losses to third parties.
Mr Fullerton, I convict you. In all the circumstances and having regard to the matters to which I have referred, the sentence of imprisonment which is appropriate in your circumstance, is one of 5 years and 9 months. I set a non-parole period of 3 years and 5 months. I have set that non-parole period notwithstanding your history of offending, because in my view that is a way of taking account of the matters that do point towards the need for a reduced sentence, without robbing the overall sentence of the general deterrent effect I think it must have having regard to the nature of the offending. That sentence also pays proper regard to the principles of totality, which are plainly relevant in the context of an indictment that comprises so many charges. I have determined that it is not appropriate to suspend any part of that sentence, because to do so would deprive it of any utility as a vehicle for punishment and the deterrence of others.
The sentence begins on the date you went into custody, 20 April 2018.
I make the restitution orders sought by the State, in favour of the named entities in the amounts stated:
(a) National Australia Bank – $60,965
(b) Westpac Banking Group – $94,280
(c) HSBC Bank Australia Limited – $11.520
(d) ANZ Banking Group – $94,400
(e) American Express Australia Limited – $3,230
(f) Pepkor trading as Harris Scarfe – $6,620
(g) Osborne Investments Pty Ltd trading as Begents – $5,090
(h) Mystate Bank Limited – $14,395
I make a forfeiture order in the terms sought by the Crown. These matters will be detailed in the memorandum of sentence.
The net effect of the sentence is that you are sentenced to 5 years and 9 months’ imprisonment, commencing on the day you went into custody. You are eligible to apply for parole after you have served 3 years and 5 months.