Director of Public Prosecutions v Abdul Kadar

[2023] VCC 120

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-01210

CR 22-01227

DIRECTOR OF PUBLIC PROSECUTIONS

v

ASMA ABDUL KADAR

ASAD MOHAMMED

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JUDGE:	HER HONOUR JUDGE GAYNOR
WHERE HELD:	Melbourne
DATE OF HEARING:	8 February 2023
DATE OF SENTENCE:	8 February 2023
CASE MAY BE CITED AS:	DPP v Abdul Kadar & Anor
MEDIUM NEUTRAL CITATION:	[2023] VCC 120

REASONS FOR SENTENCE

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms C.J. Duckett	Office of Public Prosecutions
For Accused Abdul Kadar	Mr L. Gwynn	Anthony Issacs Criminal Lawyers
For Accused Mohammed	Ms M. O'Brien

HER HONOUR: 

1Asad Mohammed and Asma Abdul Kader, you have each pleaded guilty before me to one charge of obtaining a financial advantage by deception.  I attach the extremely detailed prosecution opening to my sentencing remarks, but, in very short compass, for a period of about four and a half months the two of you obtained a financial advantage by the routine use of you in a use of a Woolworths Everyday Rewards Plus card, which is given to employees and allows for a 5 per cent discount on all purchases from Woolworths.

2You, Mr Mohammed, obtained this card first in 2017 when you worked as a Woolworths fresh foods produce manager in Perth.  You worked there between 2017 and 2019.  The card which is the subject of the charges did not belong to you but in fact belonged to a Woolworths employee who was in Perth.  You, yourself, were reprimanded or warned by Woolworths for improper use of the card whilst you were in Perth.  Somehow, and this is not clear from the prosecution opening, you did gain access, however, to this other Woolworths card and both of you essentially used this card to purchase other gift cards from a number of brands, each of them involving a 5 per cent discount.

3Hundreds of transactions were carried out by you over this four-month period.  It was noted, for example, on one day that after investigators had viewed CCTV footage of you in various stores that you engaged in this activity from about 10.30 in the morning to about 6 pm at night.  Overall the amount, the grand total, of purchases was in the region of $1,964,459.50 with the financial advantage to you being $101,633.85. 

4You were arrested at a Burwood shopping centre on 21 March in 2021.  You conducted no comment records of interview.  Following a series of committal mentions, the matter was resolved.  There was one hearing at committal mention where you sought for this matter to be dealt with by way of a summary hearing, which was refused, and the progress of your case through the system in this way does account to some extent for the delay in the hearing of these matters.

5Neither of you has any prior criminal convictions. 

6I turn now to the personal circumstances of each of you.  You are a married couple.  You, Ms Kader, are 39 years old and you, Mr Mohammed, are 37.  You both hail from India.  You, Ms Kader, came to Australia in 2008.  I read a letter written to the court at the behest of your counsel, Ms O'Brien, so that you could fully explain the context of this offending.

7You wrote that as an only daughter you felt your parents were overprotective and you wished to live an independent life.  You came to Australia to begin an Advanced Diploma in Business Studies.  When you arrived here you obtained employment in door-to-door sales.

8You, Mr Mohammed, came to Australia in 2009, having first obtained a degree in Electronic Engineering.  You undertook a Masters in this area in Australia and you and your wife met when you were both engaged in door-to-door sales.  You met in about 2010 and married in 2012.

9I was informed by your counsel, Ms Kader, that you were then three months shy of completing your studies, but you and your husband had by then moved from Broadmeadows where you were studying to St Kilda.  It was a long way to travel.  You also believed you were being stalked by a particular person at the campus and it was your view that on your marriage your husband would obtain employment commensurate with his qualifications.  He would then become the breadwinner and you would turn to the business, if I can put it that way, of starting a family.

10This, however, did not eventuate.  For a large number of years, you, Mr Mohammed, unsuccessfully sought work in your field of qualification but were only able to obtain part-time work and you, Ms Kader, became the breadwinner for yourself and your husband over that time.  I note that you essentially have worked in sales work since your marriage and you continue to remain the most securely employed of the two of you.  This, I accept, has been a matter of shame for you, Mr Mohammed, over a period of years.

11Ultimately you both had to return to India in 2014 when you, Ms Kader, became extremely unwell with an UTI, which spread to your kidneys, and your parents insisted you return for particular treatment available only in India.  This meant that you lost the employment that you had in insurance sales.

12On your return to Australia it was difficult to find work, so the two of you moved to Perth where you, Mr Mohammed, have a sister who is married with three children.  You obtained some work in sales, Ms Kader, and you, Mr Mohammed, obtained casual full-time employment with Woolworths as a manager of the fresh produce area.

13Ultimately you returned to Victoria in 2019 believing there would be greater employment opportunities for you.  You, Mr Mohammed, remained working for Woolworths; you, Ms Kader, got work again in sales.  However, neither of you had what could be called secure employment or which contained a career path and your situation worsened in COVID. 

14In 2020 your father died, Mr Mohammed, and ultimately you brought your mother and your younger brother, who is severely disabled with cerebral palsy and low intellect and who is unable to communicate, to live with you in Australia.  This necessitated the move to larger rental premises. 

15By this time, you had both withdrawn socially from other Indian friends because of your particular shame, Mr Mohammed, that you had been unable to find work despite the prestigious qualifications that you had and because your wife was working longer hours than you and bringing in more money.  I understand that culturally this is of particular shame for both of you. 

16In your letter to the court, Ms Kader, you spoke of covering up for your husband and supporting him as he became more and more despondent over the years.  You also wrote of the necessity, both because of your financial insecurity and then because of money having to be sent to India for the support of your husband’s family, that financially the decision to have children had to be put off. This was further delayed once your mother and brother arrived in Australia and you had to support them here.

17Your mother, Mr Mohammed, who is the full-time carer for your brother, and your brother lived with you both for two years.  Both counsel informed me it was a matter of pride to you to be able to show that you were doing well financially and to some extent both the financial stress you were under, which was I accept exacerbated by the arrival of your mother and brother, Mr Mohammed, together with your desire ultimately to have a family, to obtain if you like a nest egg, were the drivers behind this offending.

18It does not amount to an excuse, let me make that very clear; however, both of you have been, I accept, hard-working and law-abiding, responsible members of the community.  You are both Australian citizens and the scenario that has been described by your counsel to the court does explain the unexpected descent into criminal activity by each of you at a relatively late stage in your lives and contrary to the way you have always lived.

19Turning again to the letter you wrote, Ms Kader, you spoke of the added pressure from your mother-in-law when she came to live with you. She was critical of you for always working and not attending to the business of having children.  You felt you could not tell her of your true financial situation and that it was not possible for you to cease work, cease becoming the main breadwinner, nor did you want to betray what was culturally seen as a shameful picture of her son to her.

20In any event it is clear from the prosecution opening, which involves the observations of investigators of CCTV footage taken of each of you during these enterprises, that you put a great deal of effort into carrying out the deceptions that you did.  Ultimately investigators were able to point to the purchase by you through this method of in excess of 4500 gift cards.  Indeed when police executed a search warrant at your home the main items recovered were gift cards of various kinds.

21It is not contended by the prosecution that your activities enabled you to indulge in some of the high-living, luxury-laden activities sometimes seen by these courts by people who dishonestly obtain a financial advantage.  It was noted that during this period of offending that the bank accounts of each of you increased substantially to the point where you had combined savings of about $191,000 and that in that time of offending nothing was expended by you from those accounts in the way of ordinary household expenses.  It appears that the money that you obtained over this period of time was expended mostly on day-to-day living. 

22The actual enrichment to you is not quite the amount of money represented by the financial advantage that you obtained.  There is an activation fee attached to the gift cards and the prosecution conceded that about $35,000 of the financial advantage would have gone on those activation fees. 

23Additionally, however, there were gift cards recovered to the value of about $30,000, but the efforts, I was informed by Ms Duckett for the prosecution, to be expended by Woolworths in retracing that money, particularly given the age of some of the cards, did not make it worth their while, so that amount was lost to Woolworths.

24Overall I am satisfied that you faced a particular set of circumstances which had been ongoing for some time but which reached a peak around the time of this offending, which caused you to offend in what I accept was an uncharacteristic way.  I accept that each of you are deeply ashamed and remorseful for your offending.  Your savings have been subject to a restraining order so that you have not been in a position to repay the money to Woolworths as early as you had hoped, but there is no doubt that you will be able to make restitution in full.

25I was informed by each of your counsel that the extreme shame each of you feels about offending in this way has meant that you have told no one, although you did have to tell your mother, Mr Mohammed, as she was still living with you.  This prompted her to return to India with your brother.

26You, Mr Mohammed, I accept (having sighted a mental health plan you obtained from your doctor) were suffering from depression about your employment situation, which had been ongoing for around a decade at the time of this offending to the point, that you sought assistance from your GP and you were prescribed antidepressants, however you decided not to take them.

27You, Ms Kader, are still the person who is employed full time.  You work in a role which is described as business development but which your counsel Ms O'Brien described to me as essentially still sales work involving the sale of technology to small businesses.  You, Mr Mohammed, of course lost your employment at Woolworths.  You have obtained casual part-time employment with a firm installing LED lighting and shower heads.

28It was submitted by the prosecution that I should deal with you by way of a community corrections order.  I accept that you had been warned, Mr Mohammed, about improper use of your card.  I accept that this was sustained and continuous offending which required a great deal of effort on the part of both of you.  I accept that it probably would have gone on had there not been interception by police.  I accept that these are aggravating features of your offending.

29However, in my view your previous impeccable histories, your complete lack of prior convictions, to a mature age, stand you in good stead so that I am satisfied firstly that I do not have to attend to the principles of specific deterrence, nor of protection of the community.  I regard each of you as being unlikely to offend again in the future.

30I accept that you are remorseful.  I accept that an offer to plead guilty came at an early stage and therefore the principles enunciated by the Court of Appeal of Victoria in the case of Worboyes have particular application to your case.  That is that a plea of guilty at a time when the courts are struggling to manage the backload of cases unheard during the pandemic is of particular value to the courts and should attract a significant discount. It was submitted by counsel on behalf of each of you that a fine would be an appropriate response to this offending. I am satisfied that even after making restitution to Woolworths you are in a position to pay a fine.

31I understand why the prosecution has made the submission it has as to penalty given the nature of the offending, but it is my view that neither of you require any of the rehabilitative assistance ordinarily provided pursuant to a community corrections order, nor the supervision of Community Corrections.

32I am also satisfied there has been extra-curial punishment in this case.  Neither of you qualified for legal aid, you have had to undertake substantial legal fees in being represented in this case.  Given you are a couple who have been so worried about their finances, so distressed at being unable to take up the roles which conventionally and culturally you feel should have been taken up and which would allow you to proceed with your plans to have a family. I am satisfied a fine will be of significant deterrent value to you and act as a deterrent to others who might be minded to offend in the way that you have.

33I therefore accept the submission that you should be fined in relation to these charges and each of you is fined $3,000 in relation to the charges.

34Pursuant to s6AAA I declare that had you not pleaded guilty I would have placed each of you on a community corrections order for a period of 18 months and ordered substantial unpaid community work. 

35All right, thank you.

36MR GWYNN:  As Your Honour pleases. 

37MS O'BRIEN:  As Your Honour pleases.

38HER HONOUR:  Is there anything else I need to attend to?  I know we've got - do you want to let me know - you don't have to attend to the orders now, I can sign them and send them on if that's required.

39MR GWYNN:  Your Honour didn't state ‑ ‑ ‑

40HER HONOUR:  I am going to give you a period of eight months to pay the fines.

41MR GWYNN:  The other thing Your Honour didn't state was whether or not the fine was with or without conviction.

42HER HONOUR:  No submission was made to me that it should be without conviction.  I don't know that I could quite in the - it was essentially conceded that a conviction ‑ ‑ ‑

43MR GWYNN:  It was, Your Honour.  I'm just letting the court know that Your Honour didn't say.

44HER HONOUR:  No, I know.  The thought did cross my mind, I must say, but, look, I think in the circumstances it will be with conviction.  As I have said, you have got eight months to pay. 

45Now, do you understand that in sentencing each of you I do recognise that you are ordinary people of good character who would not behave in this way, all right?  I accept you are deeply ashamed of your offending.  I note what you said, Ms Kader:  'I wish I had never done this'.  I accept that there was a particular set of circumstances surrounding your offending and I understand this.  I understand that you have faced a lot of difficulties and disappointments along the way.

46The best way to go about paying off a fine when you've got time is to make an arrangement and just pay off a bit every month.  So if you run out of time you can come to the registrar at the court and you say, 'Look, we just haven't had - we haven't been able to pay it all off'.  If you have made no attempt at payment the registrar won't be very sympathetic, but if you pay off a good amount or as much as you can on a regular basis arrangements will be made for you.

47Does that all make sense to you?  Do you understand now?  Thank you very much.  All right.  What do you want me to do about the orders?

48MR GWYNN:  Your Honour, we've commenced a dialogue.

49HER HONOUR:  Just let me - look, just send me the orders once it's sorted.

50MR GWYNN:  Yes.

51HER HONOUR:  And if it's not just let me know, all right?

52MR GWYNN:  Thank you, Your Honour.

53HER HONOUR:  I still didn't get you there on time, Ms O'Brien.

54MS O'BRIEN:  That's all right, I can run, Your Honour.  It's all good.

55HER HONOUR:  You can. 

56MS O'BRIEN:  It will be good for me overall.

57HER HONOUR:  I'm sure.  You can come out of the dock now, all right?  We're finished.  Thank you so much.  I thank counsel very much for their assistance and thank you, Ms Duckett, for that extremely detailed prosecution opening ‑ ‑ ‑

58MS DUCKETT:  As the court pleases.

59HER HONOUR:  ‑ ‑ ‑ which I have been able to attach to my sentencing remarks, which has relieved me of a burden, so thank you for that.  Thank you very much.  Yes, we will adjourn to 9.30 tomorrow morning.  Thank you.

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