Director of Public Prosecutions v Abdo

[2016] VCC 1776

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00787

DIRECTOR OF PUBLIC PROSECUTIONS

v

IBRAHIM ABDO

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JUDGE:	HIS HONOUR JUDGE CARMODY
WHERE HELD:	Melbourne
DATE OF HEARING:	2 November 2016
DATE OF SENTENCE:	4 November 2016
CASE MAY BE CITED AS:	DPP v Abdo
MEDIUM NEUTRAL CITATION:	[2016] VCC 1776

REASONS FOR SENTENCE
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Harjadibrata	OPP
For Accused Ibrahim Abdo	Mr P. Randles	Randles Cooper & Co Pty Ltd

HIS HONOUR:

1Ibrahim Abdo, you have pleaded guilty to the following charges on indictment number F12378135. 

2Charges 1, 5 and 6, obtain financial advantage by deception.  Each of these charges have a maximum penalty of ten years' imprisonment. 

3Charges, 2, 3 and 4, attempting to financial advantage by deception.  Each of these charges have a maximum penalty of five years' imprisonment.

4Charge 7, possession of a drug of dependence, namely, Cannabis L.  The maximum penalty is five penalty units.

5Charge 8, possession of a drug of dependence, namely, methamphetamine.  The maximum penalty is 30 penalty units or one year imprisonment. 

6You have also pleaded guilty to two related summary charges transferred to this court pursuant to s.145 of the Criminal Procedure Act. Summary Charge 2, possess a weapon without exemption, namely, a taser. The maximum penalty for that is 240 penalty units or two years' imprisonment. Summary Charge 4, failing to store ammunition which is a maximum penalty of 60 penalty units or 12 months' imprisonment.

7As a result of your offending it is agreed you obtained a total of $179,400 in credit.  Your further offending in respect of the attempt charges was for a further sum of $344,300. 

8As a result of your criminal activity you accept that you actually obtained $102,630.16 from the use of 12 separate credit cards.

CIRCUMSTANCES OF OFFENDING

9Ibrahim Abdo, your offending extended over a 12 month period from 26 March 2014 to 16 March 2015.  You were arrested on 14 March 2015. 

10The applications were made online over the internet using a mobile phone, computer or a laptop computer.  The applications were made in fictitious names of non-existent persons, or in the names of persons whose details were appropriated from them without their knowledge, usually uplifted from stolen or lost Victorian drivers' licences.  Those personal details were in the name of the person, their date of birth, their Victorian driver's licence number and sometimes an old address.  Using the appropriated identity of those persons, other details such as employment and income, would be fraudulently created to complete a false credit card application. 

11The prosecution's case is in the 12 month period between 26 March 2014 and 16 March 2015 you made 44 false credit card applications to the following credit providers. 

(a) American Express:

i) there was seven successful applications with a total credit facility of $56,400.  That was done between 26 May 2014 and 15 March 2015.  That is the basis for Charge 1, obtaining financial advantage by deception.

ii) there were 12 applications that were declined, the total credit facility sought on those occasions, was $66,300 and that was between the period of 27 May 2014 and 17 January 2015.  That is the basis for Charge 2, attempt to obtain financial advantage by deception.

(b) Bank of Melbourne:

i) there were 12 applications that were declined, the total credit facility sought on those occasions, was $163,000 and that was between the period of 27 May 2014 and 27 September 2014.  That is Charge 3, attempt to obtain financial advantage by deception.

ii) there were seven successful applications with a total credit facility of $108,000 between the period of 7 August 2014 and 16 March 2015.  That was Charge 5 which is obtaining financial advantage by deception. 

(c) The Australian and New Zealand Banking Group

i) there were five applications that were declined seeking a total credit facility of $115,000 between 27 May 2014 and 27 September 2014. That is Charge 4, attempt to obtain financial advantage by deception.

ii) there was one successful application in the name of Andrew Talolua of $15,000 on 28 February 2015. That is a charge of obtaining financial advantage by deception.

12Of the applications that were successful, 12 of the credit cards that were obtained were used to obtain cash advances, goods and services in the following amounts; (a), American Express cards, $20,107.29.  (b), The Bank of Melbourne cards, $82,160 and the ANZ Bank, $362.87. 

13In the period between 26 March 2014 and 22 September 2014 you had made a total of 32 false credit card applications. 

14In the period between 22 September 2014 to 16 March 2015 you and your brother, Khalil, made a further 12 false credit card applications.  Your brother is the co-accused in those offences. 

15In total you had used the names and identities of 19 innocent people in your applications for credit. You have made up a further four fictitious identities to perpetrate your offences.  You were driven by the attraction of easy money to pay for your drug use.

16On 10 July 2014 your brother, Khalil, and Abdul Khan were intercepted by police.  The police found documentation and notes of peoples' identities and credit cards.  The documents were seized and photographed.  A police investigation was commenced. 

17On 9 October 2014 your brother, Khalil, and Abdul Khan were intercepted for a second time.  On this occasion further bank documents, Victorian drivers' licences of other persons and a Medicare card were located in the boot of the car.  The documents were seized and photographed.  A subsequent investigation revealed that the fraudulent credit card applications were made in the names of the documents found in the boot of that car, namely, Albert Lloyd, Rosalin King, Laurence Reza, Trent Gilbert, Sarah Elhayek, Antonio Luna, Metin Turkozu and Jake Murphy. The applications were made to financial institutions that included the ANZ Bank.  The handwritten notes were later discovered to be the personal details that were used to complete false credit card applications in those names and included the details contained in the drivers' licences located.

18On 24 March 2015 police executed a search warrant at 44 Eucalyptus Place in Meadow Heights, the home of you and your co-accused. Police located in the room at the rear of the house occupied by the two of you and your brother Ali, the following items:

(a) Credit cards in the names of Andrew Talolua (ANZ), Eliza McRae (American Express) and Anthony Caddy (Bank of Melbourne);

(b) Handwritten notes containing the name and personal details of Anthony Caddy, Paul Bradson, Huu Ho, Eliza McRae and Andrew Talolua; 

(c) A handwritten note, "template", containing personal details required in a credit card application with those details not yet inserted; 

(d) Credit card documents in the name of Paul Bradson from the Bank of Melbourne;

(e) Victorian driver’s licences in the name of Anthony Caddy and Andrew Talolua;

(f) Debit cards in the name of Andrew Talolua from the Bendigo Bank and ME Bank. 

(g) Credit card transaction receipts or records from EB Games - two of those - and Sportsco; 

(h) Lenovo HP, in the lounge room, and Acer laptop computers, iPhones, Nokia mobile phone and two USB sticks; 

(i) A plastic bag containing a small quantity of cannabis.  That was the basis for Charge 7, possession of a drug of dependence.

(j) Two plastic bags containing methylamphetamine.  That is the basis for Charge 8, possession of drug of dependence. 

(k) Two separate loose quantities of 45 and 35 cartridges of 12 gauge shotgun ammunition found in a hunting vest in the wardrobe.  That is the basis for the summary charge 4 of failing to store ammunition;

(l) A taser device in a box in a wardrobe and that is the basis for summary Charge 2.

19The items that were located were photographed and seized by police.  You, your brother, Ali and Khalil, were taken to the police station and separately interviewed.  Your brother, Ali Abdo, was released without charge. 

20In your interview with police you made the following comments: 

(a) as a licensed shooter you understood that the shotgun cartridges were required to be stored in a safe but could not explain why they were found in the pocket of your hunting vest. 

(b) the Amex credit card in the name of Eliza McRrae was your ex-girlfriends’ who gave permission for you to use it. 

(c) the ANZ Bank card in the name of Andrew Talulua located in your wallet was found in a mate's car and you tried to use it at a 7-Eleven store in Coolaroo, but it had expired. 

(d) you denied the taser was yours and you had never touched it. 

(e) when told that the personal information and other banking documents that were found with your documents, you admitted that it was a fraud.  You said you had started doing the credit card frauds, after you became indebted to your drug dealer for probably $20,000 to $25,000. 

21You explained the system you used as follows: 

(1) the applications were made online to banks that were chosen randomly; 

(2) the information and the handwritten notes came from drivers' licences; 

(3) the other addresses, residential addresses, email addresses, incomes, were all made up; 

(4) you lost count of the number of fraudulent credit card applications that you had made; 

(5) you had set up an electricity account under the person's name and address and also online account details and email addresses; 

(6) you had made the online applications using Wi-Fi internet on your mobile phone and portable internet devices; 

(7) you said that you sometimes randomly made up names and licences like the handwritten information about Paul Bradson was completely made up; 

(8) you used the cards to obtain cash for your “high drug debt” and sometimes used them for small $20 purchases; 

(9) the addresses for the bank correspondence were obtained from real estate agents' websites for rental properties that were about to become vacant; 

(10) the phone numbers used were fax numbers obtained randomly; 

(11) the online applications were made to various banks but the ANZ Bank was not targeted because the cards sent had to be taken to the branch to be activated;

(12) you used portable Wi-Fi so that the network was private through using multiple servers around the world and placing IP address into business somewhere else in the world; 

(13) you agreed that the small amount of cannabis and small amount of methamphetamine in the jacket pocket were drugs but denied they were yours although you did use those drugs regularly;

(14) the computer laptop in the lounge room was yours;

(15) you used the iPrimus network at home for the laptop.

22There was further investigations with the electronic devices seized from your home being forensically examined. The examination of those located identification documents including drivers' licences, Medicare cards, bank cards and false payslips in the names located on documents during the motor car interceptions and the search of your family home.

23Following the investigation including enquiries with the persons whose identity had been appropriated, and the financial institutions, it was deemed that false applications were made.  Police discovered the following about the false credit card applications:

(a) the name, date of birth, address and driver's licence number were uplifted from an identification document including Victorian drivers' licences;

(b) email addresses with the internet providers Hotmail and Outlook were specifically created for the application;

(c) home phone contact numbers that were in fact facsimile phone numbers for businesses, courts, police stations, schools, information services, hospitals and child care centres were used; 

(d) addresses were obtained from real estate agents' websites advertising properties for rent; 

(e) false income and employer details were created; 

(f) except for the credit card applications in the name of Lawrence Reza, a private network or mobile device internet connection was used in an attempt to mask the IP address for each application so the application could not be traced to the user's address.

(g) for the credit card applications in the name of Reza, an email account, [email protected] was set up using an IP address of 203.134.140.131 allocated to iPrimus and registered to the Meadow Heights home address of where you lived. 

24I find the system of offending was sophisticated.  Your actions were persistent and you achieved a direct benefit of $102,630.16 in the year of your offending.

YOUR PERSONAL CIRCUMSTANCES

25You are now 24 years old.  At the time of the offending you were 22 years old.  You had no prior criminal history at the time of these offences.  Your counsel advised the court that you had offended since these charges and that you have been placed on a community corrections order for 18 months on 13 October 2016. 

26You have a history of drug use; more recently methamphetamine. 

27At the time of your interview you told police you needed money to pay for your drug habit and your drug debts.  I accept that part of your motivation for these offences is your need to finance your drug problem.

28You were educated to Year 11 and left school early in Year 12 at Lakeside Secondary College.  You have previously worked part-time for Kentucky Fried Chicken and you continued that work after leaving school.

29You worked at your uncle's butcher shop for a while and then you qualified to work as a crowd controller. 

30At the age of 19 or 20 you started using drugs and ended up in substantial debt to your dealer.  In the past three years you have been unemployed and on Government benefits. 

31Your father died in May 2015, some two months after your arrest for these offences. 

32You are the second child of six children.  You live with your widowed mother and your brothers and sisters. 

33It was submitted on your behalf that your brother, Khalil, was the starter of these offences and you followed him.  That submission is contrary to the agreed facts of this case, where you are offending for a full year, and where your brother's offending is for the last six months of that year. 

34Mr Randles accepted that the principles of parity and sentencing do not apply between yourself and your brother, Khalil, due to the fact that:

(a) you are four years older;

(b) your offending extends over 12 months;

(c) your direct benefit is $102,000 plus which is almost three times that of your brother. 

35I accept that you are the principal offender.

SENTENCING CONSIDERATIONS

36The basic purpose for which a court may impose a sentence of imprisonment are just punishment, deterrence, both specific and general, rehabilitation, denunciation of your actions and the protection of the community. 

37In sentencing you I must have regard to a range of factors such as the seriousness of your offending, your culpability for it and your personal circumstances.  I am required to balance the interests of the community in denouncing your criminal conduct with the interests of the community in seeking to ensure, as far as possible, you as an offender, are rehabilitated and reintegrated into society.

38You have pleaded guilty to these proceedings at an early state.  Your plea has a utilitarian value of allowing the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by you offending.  Your plea also allows for the preservation of court and police resources to deal with other matters.  Your plea vindicates the public confidence in the legal process set up to protect the community.

39You have, by your plea, relieved the police of compiling a full brief of evidence against you.  Your plea is also a clear acknowledgement by you that you accept your responsibility for your criminal behaviour.  Your plea also recognises that you are willing to facilitate the course of justice in the community.  I also accept that your plea is an indicator of your remorse.

40I am mindful of the provisions of the Sentencing Act and in particular s.5(4)(C) which directs a sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed. 

41I have reviewed the case of Boulton.  In considering whether the community corrections order it would be appropriate in your case I have had you assessed for the purpose of a community corrections order.  You have been assessed as suitable.

42As I said to your brother, that is not the end of the matter. 

43I also require to take into account current sentencing practices in fixing your sentence. That enquiry is directed particularly, but not exclusively, to the kinds of sentences imposed in comparable cases and the statistics of those cases at the time.  I have considered the statistics of current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and that many cases would be distinguishable from your case, as indeed they are from one another.

44Your counsel referred to the authorities of Boyton v The Queen, Roujnikov v The Queen and Marasco v The Queen.  Each of these cases are 2016 decisions of the Court of Appeal of Victoria.  The authorities provide guidance as to the current sentencing practices but each of these cases is distinguishable from you as they were in fact from each other. 

45The prosecutor submitted that it was appropriate for an immediate term of imprisonment in your case.  The prosecutor relied upon the pronouncements of Osborne JA in the two cases, Zotos (2008) 82 at paragraphs 57, 60 and 61 and the case of Breen (2008) VSCA 178 at paragraph 25 to 27.

46I have referred to those pronouncements by Osborne JA in both of those cases in the sentence to your brother and I do not repeat them here. 

47The principles of specific and general deterrence and just punishment require a term of imprisonment to be served as part of the sentence for your overall offending.  A community corrections order to be commenced at the end of your term of imprisonment is for the purpose of punishment, but more predominantly, to be put in place supports for your rehabilitation.  The community and you will benefit from this part of your sentence. 

48The level of seriousness of your criminality is marked by the following factors: 

(1) the period of time that you persisted in offending, that is, from March 2014 to March 2015; was a period of 12 months;

(2) the total of 44 separate credit card applications were made in that period;

(3) that you created a total of, four fictitious identities, to facilitate your offending;

(4) you used some 19 identities of real people to commit you crimes; 

(5) you have targeted three separate financial institutions on numerous occasions;

(6) you have received a total benefit of $102,630 from 12 credit cards; 

(7) you obtained credit facilities from 15 credit cards totalling $179,400;

(8) you attempted to obtain a further 29 credit card facilities for a total credit facility of $344,300.

49A proper characterisation of your offending is that your system was sophisticated.  Your activities were persistent and you continued until your arrest.  No restitution has been paid to the victims of your crime. 

50You have no prior convictions.  You have subsequently been ordered to serve a CCO on 13 October 2016 for subsequent offending. 

51I take into account your prior good character when fixing your sentence. 

52You were 22 at the time of your offending and 24 at the time of the sentence.  I consider you to be a young offender and that the principles of Mills case apply to you in fixing your sentence.  The main consideration for sentencing a young offender is rehabilitation, however the seriousness of your offending, ameliorates the weight to be given to the mitigatory effect of your youth in the sentencing calculus. 

53I reject the submission made on your behalf that the financial institutions did not have sufficient processes in place to avoid or foil your criminal activity.  You have dishonestly exploited the financial system used by all members of the community to obtain a financial benefit for yourself.  You are the person at fault here, not anyone else.

54I have considered the sentencing principles of parity in fixing your sentence.  The principle of parity is based on the concept of equal justice.  Your offending is more serious than that of your younger brother and co-accused, Khalil Abdo.  The differences are marked by the following factors:

(a) you are four years older;

(b) you have offended over twice the length of time;

(c) you have obtained three times the direct financial benefit;

(d) you have made more than three times the number of credit card applications.

55In summary, you have offended for longer, on more occasions for a greater benefit to you when compared to your younger brother.  These are factors set aside any consideration of parity.  Your counsel agreed that parity of sentence was not a relevant factor. 

56I assess your prospects of rehabilitation as fair.  You have a drug abuse problem.  It is long-standing.  The combination of a gaol sentence and a CCO is the best chance to support your rehabilitation. 

SENTENCE

57On Charge 1, you are convicted and sentenced to six months imprisonment.  That is the base sentence.

58On Charge 2, you are convicted and sentenced to three months imprisonment.

59On Charge 3, you are convicted and sentenced to three months imprisonment.

60On Charge 4, you are convicted and sentenced to three months imprisonment.

61On Charges 5 and 6, you are convicted and ordered to serve a two year community corrections order upon your release from prison. 

62The conditions of that community corrections order are supervision, drug treatment and rehabilitation, mental health treatment and rehabilitation and offender reduction programs.

63On Charge 7, you are convicted and fined $100.

64On Charge 8, you are convicted and sentenced to 14 days imprisonment.

65In respect of summary Charge 2, you are convicted and sentenced to one month imprisonment. 

66In respect of summary Charge 4, you are convicted and sentenced to seven days imprisonment.

67I order that one month of each of the sentences in Charges 2, 3 and 4 be served cumulatively on the sentence in Charge 1 and on each other. 

68That is a total effective sentence of nine months imprisonment. 

69Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you totally to three years with a two and a half year non-parole period. 

70I declare you have served two days pre-sentence detention which is to be deducted administratively from your sentence of nine months imprisonment. 

71I make the orders in respect of disposal, compensation, section 464ZF and the certification for the crime certificates for the victims of your identity fraud. 

72I just remind you that you will be in custody.  The authorities have the right to take a sample of DNA from you - that is placing a swab inside your cheek and they are empowered to use reasonable force if you do not comply.  Do you understand that?

73OFFENDER IBRAHIM ABDO:  Yes, Your Honour.

74HIS HONOUR:  Thank you.  Does that cover everything?

75COUNSEL:  Yes, Your Honour.

76HIS HONOUR:  You just have to sign this CCO.  You can take a seat, thanks. 

77(Orders signed and acknowledged.)

78HIS HONOUR: Thank you. You can remove the prisoner.

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