Director of Public Prosecutions v Abdo

[2016] VCC 1624

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00786

DIRECTOR OF PUBLIC PROSECUTIONS

v

KHALIL 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 1624

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Harjadibrata	OPP
For Accused Khalil Abdo	Mr C. Douglas	George Douglas & Co Pty Ltd

HIS HONOUR:

1Khalil Abdo, you have pleaded guilty to the following charges on Indictment F12399166. 

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

3Charges 2, 3 and 4, attempting to obtain financial advantage by deception.  These charges have a maximum penalty each of five years imprisonment.

4Charge 7, possess a drug of dependence, namely, Cannabis L.  This charge has a maximum penalty is five penalty units. 

5Charge 8, possess drug of dependence, namely, methylamphetamine.  This charge has a maximum penalty of 30 penalty units or one year imprisonment.

6You have also pleaded guilty to two related summary offences which have been transferred to this court pursuant to s.145 of the Criminal Procedure Act.

7They are Charge 2, possess a controlled weapon, a taser gun.  The maximum penalty for this charge is 240 penalty units or two years imprisonment and Charge 4, failing to store ammunition in a secure manner.  The maximum penalty for this charge is 60 penalty units or 12 months imprisonment. 

CERCUMSTANCES OF YOUR OFFENDING

8You turned 18 years of age on 22 September 2014.  You have been charged, together with your older brother, Ibraham, and co-accused, for these offences since that date.  In total there were 12 separate credit card applications using the identities of, seven different people, to three separate credit providers, the Bank of Melbourne, ANZ and American Express.  Of the seven different people three of them are said to be real people; four of them are fictitious.

9The applications took place between 27 September 2014 and 16 March 2015.  You were arrested and interviewed on 24 March 2015.  In each of these 12 credit applications your brother, Ibrahim, is your co-accused. 

10At paragraph 18 of the summary of prosecution opening there is a table setting out your applications and the names you used.  The dates in this table cover the period 22 September 2014 to 16 March 2015 and involved the Bank of Melbourne, ANZ and American Express. The names of the people you have used are Laurence Reza, Antonia Luna, Paul Bradson, Huu Ho, Andrew Talolua, Eliza McRae and Anthony Caddy.

11The actual amount that you obtained from your offending was $32,704.81.  It is accepted that you obtained a total credit facility in the sum of $85,200 by your criminal activity.  You also attempted to obtain a further $90,000 of credit facility. 

12These fraudulent credit card applications came to the attention of police as a result of two separate interceptions of motor cars in which you were the occupant.

13On 10 July 2014, at approximately 6.40 pm, police intercepted a Holden Commodore motor vehicle on Sydney Road in Brunswick.  You and a friend by the name of Abdul Khan were the only occupants of the car.  Before they spoke to you, the police noticed that you and Abdul Khan switched seats in the car.  Abdul Khan moved from the driver's seat to the rear passenger seat and you, who had previously been occupying the front passenger seat, moved into the driver's seat.  Police discovered that Abdul Khan's licence had been cancelled.  Khan was spoken to and a search was conducted of the car and of both of you.

14In your wallet police located the following documents:

a) Four handwritten notes containing the names and personal details of Daniel Rinaldis, Mahesh Perera, Muhammad Parhar and Harishkumar Dave;

b) An ANZ bank credit card in the name of Daniel Ranaldis. 

These names are names that are relevant directly to your brother's offending. 

15Police also located in the front passenger footwell of the car, Bank of Melbourne credit card documents in the name of Muhammad Parhar and Harishkumar Dave.  These documents had the same reference as application numbers that appeared on the handwritten information notes containing those names.  The documents were seized and later photographed.  A subsequent investigation revealed that fraudulent credit card applications were made in the names of the persons located on the documents seized, that is, Rinaldis, Perera, Parhar and Dave. 

16The applications were made to financial institutions which included the ANZ Bank and the Bank of Melbourne.  The handwritten notes were later discovered to be personal details that were used to complete online credit card applications in those names.  This interception by police was prior to your 18th birthday and should have served as a warning to you and your brother.  Undeterred by this chance warning, you continued to associate with Abdul Khan.

17On 9 October 2014, you and Abdul Khan were intercepted again by police driving a rental car in Meadow Heights.  A search of the boot of the car located the following items:

(a) Handwritten notes containing the names and personal details of Albert Lloyd, Rosalind King, Laurence Reza and Trent Gilbert;

(b) Credit cards in the name of Albert Lloyd (Bank of Melbourne) and Trent Gilbert (ANZ Bank);

(c) Credit card statement from the Bank of Melbourne in the name Laurence Reza

(d) Victorian drivers' licences in the names of Rosalind King (two located), Sarah Elhayek, Antonio Luna, Metin Turkozu and Jake Murphy; and

(e) A Medicare card in the name of Rosalind King.

18The documents were seized and photographed.  A subsequent investigation revealed that fraudulent credit card applications were made in the names on the documents found in the boot of the car.  They were Albert Lloyd, Rosalind 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 on the drivers' licences located.  Only the notes to Laurence Reza were related to the offending that is charged against you.

19On 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.

20The items located were photographed and seized.  You and Ali Abdo, were arrested and taken to the police station where you were separately interviewed. Following his interview, Ali Abdo was released without charge. 

21During your interview you denied knowing anything about documents in various names, the taser, the cartridge ammunition and the cannabis and methylamphetamine located in the room you shared with your two brothers.  You also denied knowing anything about the documents in various names located in the car in which you had been travelling with Abdul Khan on 10 July 2014.

22In the course of the plea it was submitted by your counsel, Mr Douglas, that you commenced the fraudulent applications for the credit cards prior to your 18th birthday.  Your counsel stated your older brother, Ibrahim, joined in you scheme to obtain financial advantage by deception. 

23The sentencing court is limited to charges on the Indictment and the agreed prosecution summary, which is Exhibit A, when dealing with the factual matters for your sentence.  You will be sentenced accordingly.

YOUR PERSONAL CIRCUMSTANCES

24I have been told a little of your personal circumstances.  You are 20 years old.  You were 18 at the time of your offending for which you are to be sentenced by this court. 

25Your counsel told the court that you had matters yet to be heard at the Broadmeadows Magistrates' Court.  These charges are for offending since these current offences here were committed. 

26You have been on the CISP program since 6 September 2016.  You had previously spent 14 days on remand for that offending. 

27Your father died in May 2015, some two months after your arrest for these offences.  You live with your mother, your three younger sisters and your two brothers at the family home in Meadow Heights. 

28In a letter to the court, which is Exhibit KA2, your mother sets out the difficulties your father visited upon her and her children during his lifetime.  One feature of your father's behaviour, gambling, has been taken up by you and is referred to in your own letter, which is Exhibit KA3, as part of the reason for your offending.

29You were educated to Year 9.  After school you commenced a building and construction course.  You have had a part-time job at McDonald's but no full-time work. 

30You commenced using cannabis in Year 9.  On New Year's Day 2014, you attended a dance party and you were introduced to cocaine by your cousin.  You quickly developed a need for cocaine but could not afford it.  You started this offending to finance your cocaine use.  You have then started using the drug “Ice” and you used it until your arrest in August 2016.

31Your current situation is, or was until recently, that you live with your family.  You are a recipient of welfare payments.  You are living a life without direction and state in your letter that you are prepared to engage in rehabilitation. 

SENTENCING CONSIDERATIONS

32The basic purpose for which a court may impose a sentence are just punishment, deterrence, both specific and general, rehabilitation and denunciation of your actions, and the protection of the community.  In 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.

33I am also 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, that you, as an offender, are rehabilitated and re-integrated into society. 

34I am also required 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 sentences at the time.  I have considered the statistics and the current sentencing practices, mindful that each case must be considered in the light of its own particular circumstances, and many of the cases would be distinguishable from your case, as indeed, they are from one another.

35I am mindful of the provisions of the Sentencing Act and in particular s.5 (4C) which directs the sentencing court to consider whether a community corrections order can achieve the purpose for which this sentence is to be imposed.

36I have reviewed the case of Boulton in considering if a community corrections order would be appropriate in your case, and I have had you assessed for a community corrections order.  You have been assessed as being suitable.  That is not the end of the matters.

37You have pleaded guilty to this charge.  Your plea of guilty was indicated at an early stage.  Your plea does have the utilitarian value of allowing for the orderly and effective administration of justice.  There is a certainty of outcome and a resolution of the substantive issues raised by your offending.  Your plea allows for the preservation of the court and police resources to deal with other matters.  Your plea vindicates the public confidence and legal process set up to protect the community. 

38Your plea also is a clear acknowledgment by you that you accept responsibility for your criminal behaviour on this occasion.  Your plea also recognised you are willing to facilitate the course of justice in the community and I accept that your plea of guilty to these charges indicates and demonstrates some remorse on your behalf. 

39At the time of offending you were 18 years old.  You have recently turned 20 years old.  You are a young offender.  You have no prior convictions.  It is a principle of sentencing law that when a young offender, such as yourself, is to be sentenced, the sentencing disposition should be tailored, taking into account all other sentencing considerations, to promote the offender's rehabilitation.  This approach serves the interests of the individual offender and the community as a whole.

40In the case of R v Mills (1998) 4VR 235 three propositions of sentencing were set out:

" i. Youth of an offender, particularly a first offender, should be a primary consideration for a sentencing court where that matter properly arises.

ii. In the case of a youthful offender rehabilitation is usually far more important than general deterrence.  This is because punishment may in fact lead to further offending. Thus, for example, individualised treatment focusing on the rehabilitation is to be preferred. (Rehabilitation benefits the community as well as the offender.)

iii) A youthful offender is not to be sent to an adult prison if such a disposition can be avoided, especially if he is beginning to appreciate the effect of his past criminality. The benchmark for what is serious as justifying adult imprisonment may be quite high in the case of a youthful offender; and, where the offender has not previously been incarcerated, a shorter period of imprisonment may be justified. (This proposition is a particular application of the general principle expressed in s.5(4) of the Sentencing Act".)

41In more recent times the Court of Appeal has made pronouncements on the consideration of youth in sentencing practices.  In the case of R v Wyey (2009) VSCA 17, President Maxwell said as follows:

"Mills constantly reminds sentencing courts and this court on appeal, that there is a great public benefit in the rehabilitation of an offender and in maximising the prospect that the offender will carry on a law-abiding life in the future. But the consideration is not unique to young offenders. Nor is there any one correct answer as to how the balance is to be struck between that consideration and others which may point towards a period, or longer period, of imprisonment, rather than non-custodial sentences.  Thus understood, the later cases of DPP v Lawrence and R v. Nguyen, are not to be viewed as excluding the principles of Mills’, but simply as instances of how those principles are to be applied. 

As counsel properly conceded toward the end of his submissions, there is a role for general deterrence to play in relation to every class of cases. In relation to certain classes of case, however, general deterrence may have a particularly important role to play.  The present case is of that kind.  Violence of this kind, - and that is what this case was about - "in circumstances of this kind, is so prevalent, that general deterrence is seen to have particular importance. But, again, the role of general deterrence will vary with the circumstances of the case".

42I interject there to say that these sorts of fraudulent claims on credit providers does call for general deterrence.

43These issues were recently considered again in Azzopardi v The Queen (2011) VSCA 372 where Redlich JA with whom Coghlan and Macaulay AJJAs agreed and said as follows:

"The general proposition which flow from these authorities is that where the degree of criminality of the offences requires the sentencing objectives of deterrence, denunciation, just punishment and the protection of the community to become more prominent in the sentencing calculus, the weight to be attached to youth is correspondingly reduced.  As the level of seriousness of the criminality increases there will be a corresponding reduction in the mitigating effect of the offender's youth. But only in the circumstances of the gravest criminal offending and where there is no realistic prospect of rehabilitation may the mitigatory consideration of youth be viewed as all but extinguished".

44The level of seriousness of your criminality is indicated by the following factors: 

(1) The period of time over which your offending took place, September 2014 to March 2015, is six months; 

(2) The 12 separate applications for credit cards were made in that period; 

(3) The use of details and identities of 19 real people and four fictitious people to perpetrate your crimes.

(4) Three separate financial service providers have been impacted by your offending. 

(5) The total sum of $32,704.81 that you have benefited from your offending. 

(6) You persisted in commencing offending even after two police interceptions on 10 July 2014, that is before your charges were laid, and 9 October 2014, during your offending but at an early stage. This is clear indicator of your brazen approach to this type of offending. 

45The seriousness of this offending affects the weight to be given to the mitigatory effect of your youth in the sentencing calculus. 

46The offences in this case of obtaining financial advantage by deception, and attempts to obtain financial advantage by fraudulent applications for credit cards, is serious offending.

47In two recent cases of this type of offending, Osborn JA has stated as follows.  In the case of R v Zotos (2008) 82 at paragraphs 57, 60 and 61 he says as follows:

"Whilst due weight must be given to the appellant's co-operation with the police andto  his pleas of guilty, it is incumbent on the court to denounce the continuing persistence of seriously dishonest conduct in a man of the appellant's maturity.  It was not suggested that the appellant was of limited intelligence and the nature of his offences suggest otherwise.  It was not suggested he lacks the capacity for honest employment, although it is apparent he will not readily obtain employment in a position of trust because of his criminal record.

The appellant's sentence must also reflect the need for general deterrence that responds to the implicit attack upon the economic fabric of society which offending of this character constitutes".

48Osborne JA then said:

"I would respectfully adopt the statements of Charles JA in R v Kostikidi and Mpehelevanas".

49Charles J.A stated:

"The provisions of credit by financial institutions, in the belief that repayment will be made in due course, is at the very foundation of our economic system.  In extending credit, these institutions have little alternative but to rely to a substantive extent on the truthfulness of the statements made in applications for finance and the honesty of the applicants.  Credit and other checks imposed by such institutions to attempt to avoid losses cause by such frauds increase the cost of lending and are reflected in higher charges made by the institutions and borne by the borrowing community".

50In the case of R v Breen (2008) VSCA 178 and at paragraphs 25 to 27 Osborne JA said as follows:

"It can be seen that the offending in issue at the time involved extended and pervasive dishonesty" – that is common of your case.

“In this context the sentences now in issue raise significant questions of appropriate punishment and of both general and specific deterrence”

“The question of general deterrence has two aspects. It is significant first, because credit fraud of the type in issue strikes at the foundations of the modern consumer economy. The fraud of the offenders such as Hall imposes a burden upon the credit system not only directly affecting financial institutions but also indirectly affecting honest users of that system. The implementation of deliberate ongoing schemes of rolling fraud must be confronted with adequate penalties if the law is to have any effect as a general deterrent.”

51The principles of specific deterrence, general deterrence and just punishment can be satisfied by the imposition of a community corrections order. 

52I have had regard to the sentencing snapshot and note that the terms of imprisonment are a more usual outcome for your type of offending.  The fact that you have no prior convictions and are young, both at the time of the offending and sentence, dictates that you and the community, would benefit from an emphasis in the sentence of rehabilitation.  This is best achieved by the imposition of a CCO. 

SENTENCE

53On Charges 1, 2, 3, 4, 5 and 6 you are convicted and ordered to serve a community corrections order for a period of three years. 

54The conditions of the community corrections order are as follows; (a) that you are to be supervised; (b) that you are to perform 200 hours of unpaid work in the first year of that CCO; (c) that you are to be assessed for drug treatment and rehabilitation; (d) that you be assessed for a mental health assessment and rehabilitation; (e) you attend judicial monitoring on 16 February 2017 at 9:30 in the morning; (f) that you undertake offender reduction programs, in particular gambling addiction.

55In respect to Charge 7, you are convicted and fined $100. 

56In respect to Charge 8, you are convicted and fined $400. 

57In respect to summary Charge 2, you are convicted and fined $500. 

58In respect to summary Charge 4, you are convicted and fined $500.

59I will grant you a stay of three months to pay the fines.

60Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty, I would have sentenced you to a period of two years' imprisonment with a non-parole period of 18 months imprisonment.

61In terms of the application for s.464ZF I grant the application.  There was to be one, was there not?  You said there was.  I do not have it is all.

62MR HARJADIBRATA:  Yes, I think I referred to it in the opening, Your Honour. 

63HIS HONOUR:  You did, are ‑ ‑ ‑

64MR HARJADIBRATA:  But we haven't ‑ ‑ ‑

65HIS HONOUR:  ‑ ‑ ‑ you persisting with that because I have not got it?

66MR HARJADIBRATA:  We haven't provided - excuse me.  Yes, we did seek a forensic sample order in paragraph 25(a).

67HIS HONOUR:  Yes.

68MR HARJADIBRATA:  However, we haven't prepared the orders, unfortunately, and I'll get my instructor to do that as soon as possible, Your Honour.

69HIS HONOUR:  Right, I am granting that order.  What that means is that you have to report and the authorities will take a swab from inside your mouth to obtain a sample of your DNA.  They are authorised to use reasonable force to obtain it if you do not agree.  Do you understand?

70OFFENDER KHALIL ABDO:  Yes.

71HIS HONOUR:  I have also made the compensation orders sought, the disposal order sought and I have signed the criminal identity certificates in respect of the people concerned by your offending.  You can take a seat. 

72MR DOUGLAS:  Your Honour, for the swab his local police station would be Broadmeadows.

73HIS HONOUR:  Yes, thank you.  Mr Douglas, you can attend at the back to assist with your client signing this order.

74MR DOUGLAS:  Thank you.

75(Orders signed and acknowledged.)

76HIS HONOUR:  Thank you