CDirector of Public Prosecutions v Al-Mosawy
[2024] VCC 368
•25 March 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01319
| COMMONWEALTH DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AL-MOSAWY, Maitham |
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JUDGE: | Judge Palmer | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 5 March 2024 | |
DATE OF RULING: | 25 March 2024 | |
CASE MAY BE CITED AS: | CDPP v Al-Mosawy | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 368 | |
SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Disposing of property with intent to defraud – Bankruptcy – Other offences to be taken into account under 16BA of Crimes Act - failure to fully disclose to the trustee particulars of disposition of property – remorse – good prospects of rehabilitation
Legislation Cited: Bankruptcy Act 1966 (Cth), Crimes Act 1914 (Cth)
Cases Cited:Bugmy v The Queen (2013) 249 CLR 571; R v Verdins (2007) 16 VR 269; R v Dunwoody (2004) 149 A Crim R 259 (QCA); Valentino v The Queen (1991) 109 FLR 167 (WACCA); Billis v The Queen (24 February 1997, WACCA, BC9700933); and Putland v The Queen (2003) NTCCA 3; R v Abouchabake [2024] NSWDC 42; and DPP v Luong [2021] VCC 1482
Sentence:18 months imprisonment to be immediately released upon entering into recognisance order
6AAA:2 years imprisonment, to be released on a recognisance release order after serving 12 months.
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APPEARANCES: | Counsel | Solicitors |
| For the CDPP | Ms Zoe Gibson | Commonwealth Director of Public Prosecutions |
| For the Accused | Mr Lachlan Cameron | Stary Norton Halphen |
HIS HONOUR:
Circumstances of offending[1]
[1] The circumstances of the offending are set out in more detail in Summary of Prosecution Opening for Plea (6 February 2024). The personal circumstances of Mr Al-Mosawy are set out in Daniella Kocic, Confidential Psychological Report (29 February 2024) and Letter of Support from Hamed Hamdy (1 March 2024). I have also read and considered Prosecution Submissions on Plea (3 March 2024) and Outline of Defence Plea Submissions (4 March 2024), as supplemented by the parties’ oral submissions.
Maitham Al-Mosawy, in 2014 you purchased Chinese Golden Dragon Pty Ltd, a restaurant business in Wagga Wagga. The business failed, leaving a number of unpaid creditors.
On 27 June 2019, the liquidators for Golden Dragon obtained a judgment debt against you for $313,366.11. On 20 October 2019, you were served, via email, with a bankruptcy notice and supporting court order. On 8 April 2020, Golden Dragon filed a creditor’s petition against you.
On 4 June 2020, you were personally served with notice of a hearing for that petition. On 2 July 2020, you appeared before the court and applied for an adjournment. You told the Court that this was to give you time to obtain legal advice, and funds to pay Golden Dragon.
You owned a property in Craigieburn. On 13 July 2020 you entered into a contract to sell that property. On 4 and 5 August 2020 you received funds from the proceeds of sale totalling $119,105.58. You deposited these funds into your Commonwealth Bank account.
Between 4 and 12 August 2020 you made 18 separate cash withdrawals from that account, totalling $121,000. At the end of that period, the balance of your account was less than $500.
On 13 August 2020, you were made bankrupt, and a trustee was appointed to your bankrupt estate.
On 18 August 2020, an employee of the trustee phoned you, and asked you about the withdrawals from your bank account. You told him that you had spent the money on girls, and by repaying a loan to a person whose address you did not know. The employee told you that he thought that these answers were false, and advised you to seek legal advice.
On 27 August 2020, you participated in a further telephone interview with employees of the trustee. You admitted that your previous answers were lies, and explained that you had in fact given the money to your father. You said that you owed your father the money as payment for a property in Shepparton that he had transferred to you.
There is no written agreement relating to the transfer of title for that property; nor did your name ever appear on the title. However, the prosecution accepted that your father was a creditor and that the money had been paid to him on that basis.
You have pleaded guilty to one charge of disposing of property with intent to defraud creditors, contrary to section 266(1) of the Bankruptcy Act 1966. The charge relates to the withdrawals from your bank account between 4 and 12 August 2020, and your disposal of that money. The maximum penalty for this offence is five years imprisonment.
Objective seriousness and moral culpability[2]
[2] Crimes Act 1914, s 16A(2)(a).
Your conduct involved 18 separate, dishonest, transactions over an eight day period. You privileged your father over all of your other creditors.
You have asked me to take into account a further offence,[3] relating to the answers you gave to trustee employees on 18 and 27 August 2020. That charge is of failing to fully and truly disclose to the trustee particulars of disposition of property, contrary to s 268(5) of the Bankruptcy Act. I have taken this offence into account in assessing the gravity of your conduct and the need for specific deterrence.
[3] Crimes Act 1914, ss 16BA and 16A(2)(b).
Although your attempt to cover-up your conduct may have been unsophisticated and amateurish, the fact remains that the money you withdrew has not been recovered. So your conduct was successful: you achieved your intention of defrauding your creditors.
Your counsel submitted, on the basis of the opinion of psychologist Daniella Kocic, that your offending was contributed to by your mental health issues and lack of coping strategies and problem-solving skills, the breakdown of your marriage, and the onset of the COVID-19 pandemic. I accept this.
Nevertheless, the prosecutor submitted, and your counsel accepted, that your offending was serious. I agree.
Personal circumstances and other subjective matters[4]
[4] Crimes Act 1914, s 16A(2)(m).
You were born in Iraq in 1982. When you were seven years old, your family fled Iraq. You spent several years in refugee camps in Saudi Arabia, where you witnessed numerous violent deaths. You arrived in Australia when you were 11 years old, and experienced ongoing difficulties as you adapted to your life here.
Your counsel did not submit that your upbringing contributed to or explained your offending. However, I accept that the scars of your difficult childhood and adolescence continue to affect you, and give some weight to that.[5]
[5] Bugmy v The Queen (2013) 249 CLR 571.
You completed a mechanical apprenticeship after leaving school, and have worked as a self-employed mechanic since then. You have also worked in disability and aged care.
You married your wife Sarah when you were 23 years old, and have three children with her: your daughter Zahra, aged 16, and sons Mosa and Ali, aged 12 and 10. You and Sarah separated in 2019. You share custody of the children, although they are not currently able to live with you, as you are living at your brother’s house. I accept that your imprisonment would cause hardship to your children. [6]
[6] Crimes Act 1914, s 16A(2)(p).
You have previously been found guilty of failing to deliver company books and records, and using a false document to prejudice others. Your counsel explained the circumstances of this offending. I find that it is objectively less serious than your current offending; but that it nevertheless shows a slightly increased need for specific deterrence. [7]
[7] Crimes Act 1914, s 16A(2)(j).
You have mental health issues. I accept that a sentence of imprisonment would weigh more heavily on you for that reason. I also accept that there is a serious risk that imprisonment would have an adverse impact on your mental health.[8]
[8] R vVerdins (2007) 16 VR 269, limbs five and six; the prosecution accepted that both limbs applied.
There was a delay of two years between your offending and the laying of charges. There has been another year and a half between the laying of charges and the hearing of your plea. Without seeking to apportion blame for this delay, I accept that you have had the prospect of imprisonment hanging over you for a significant period of time. I also accept that you have not been charged with any other offending during that period, and have thereby demonstrated that your prospects for rehabilitation are real. [9]
[9] Crimes Act 1914, s 16A(2)(n).
Those prospects are further demonstrated by your strong family support, your solid employment history, your involvement in and support from your religious community, the insight you have apparently shown into your offending, and the steps you are taking to deal with your mental health issues.
You have expressed some remorse for your actions.[10] You pleaded guilty prior to a committal hearing. [11] Although not at the earliest reasonable opportunity, your plea of guilty has nevertheless saved the courts, witnesses, prosecuting agencies and the community as a whole time, money, inconvenience and uncertainty. This is particularly important at a time when the courts are still dealing with the after-effects of the pandemic. I will therefore reduce your sentence because of your plea of guilty.
[10] Crimes Act 1914, s 16A(2)(f); Kocic, [62].
[11] Crimes Act 1914, s 16A(2)(g).
Current sentencing practice
I have taken into account sentencing practice for the offence of disposing of property with intent to defraud creditors. The prosecution referred me to four sentencing decisions.[12] The defence referred me to two.[13] I have had regard to all of these decisions. I note that some of these sentences were imposed at a time when the maximum penalty was only three years imprisonment, and that in two of them the sentences were imposed after a trial rather than a plea of guilty. Nevertheless, there is a common theme to the decisions:
a.The sentences imposed were all for a term of imprisonment, with release on a recognisance release order to be of good behaviour after serving a portion of that sentence;
b.The amounts involved ranged from less than $100,000 to $600,000;
c.The terms of imprisonment ranged from 18 months to four years; and
d.The amount of time to be served before release ranged from five to 12 months.
[12] See Comparative Sentence Schedule, summarising R v Dunwoody (2004) 149 A Crim R 259 (QCA); Valentino v The Queen (1991) 109 FLR 167 (WACCA); Billis v The Queen (24 February 1997, WACCA, BC9700933); and Putland v The Queen (2003) NTCCA 3.
[13] R v Abouchabake [2024] NSWDC 42; and DPP v Luong [2021] VCC 1482.
What I take from these decisions is that:
a.General deterrence is a very significant consideration in bankruptcy offending;[14]
b.Sentences for this offence will ordinarily involve a term of imprisonment with release on a recognisance release order after serving some portion (often significantly less than half) of that term; and
c.The amount involved is relevant to the seriousness of the offending but is not a determinative or controlling factor.
[14] Crimes Act 1914, s 16A(2)(ja).
In your case, the prosecution originally submitted that the seriousness of your offending required a term of immediate imprisonment. However, after considering the material in the report of Ms Kocic, the prosecution submitted that it was open to me to order your immediate release on a recognisance release order.
Your counsel submitted that it was open to me to impose a community correction order. However, he conceded that he had been unable to identify any current sentencing practice that supported that submission. He too accepted that it was open to me impose a sentence of imprisonment and to order your immediate release on a recognisance release order. That is what I will do. In determining the length of that term of imprisonment, I have taken into account all of the matters above.
Orders
If you had not pleaded guilty, I would have imposed a sentence of two years imprisonment, to be released on a recognisance release order after serving 12 months. Because you pleaded guilty, I am imposing a sentence of 18 months imprisonment, to be immediately released on entering into a recognisance release order to be of good behaviour.
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