Director of Public Prosecutions v Ahipue
[2024] VCC 2047
•13 December 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-24-00085
| THE DIRECTOR OF PUBLIC PROSECUTIONS | Prosecution |
| v | |
| VENATUS AHIPUE | Defence |
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JUDGE: | HIS HONOUR JUDGE CAHILL | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 28 November 2024 | |
DATE OF SENTENCE: | 13 December 2024 | |
CASE MAY BE CITED AS: | DPP v Ahipue | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 2047 | |
SENTENCE
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Subject:Engage in conduct in relation to money valued at $100,000 or more that is proceeds of general crime contrary to section 400.4(2B) of the Criminal Code Act 1995 (Cth)
Catchwords: Guilty plea –– above mid-range offending (charge 1) – small but integral cog– no criminal record – family hardship – risk of deportation –
Legislation Cited: Criminal Code Act 1995 (Cth); Migration Act 1958 (Cth); Sentencing Act1991 (Vic); Crimes Act1914 (Cth)
Cases Cited:Ansari [2007] NSWCCA 204; Kim & Fang v R [2016] VSCA 238; Arjuna Samarakoon [2008] VSCA 119; R v Jiao (2015) 251 A Crim R 236; R v Pham (2015) 256 CLR 550; Hili v The Queen (2010) 242 CLR 520; Guden v The Queen [2010] VSCA 196; Hiu Mei Lam v R [2021] VSCA 241; R v Merrett, Piggott and Ferrari (2007) 14 VR 392; Azzopardi v The Queen [2011] VSCA 35 VR 43.
Sentence:18 months imprisonment to be released forthwith on a reconnaissance release order
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APPEARANCES: | Counsel | Solicitors |
| For the Prosecution | Ms S Tatas | Commonwealth Director of Public Prosecutions |
| For the Defence | Mr D Cash | KPT Defence Lawyers |
HIS HONOUR:
1Venatus Kelechi Ahipue you have pleaded guilty to one charge of engaging in conduct in relation to money $100,000 or more that is proceeds of general crime, contrary to subsection 400.4(2B) of the Criminal Code (Cth).
2You have also pleaded guilty to two related summary offences, namely, the possession of cocaine and possession of cannabis contrary to the Drugs and Poisons and Controlled Substances Act (Vic).
Circumstances of offending[1]
[1] Exhibit A: Summary of Prosecution Opening for Plea dated 27 August 2024.
3Between 25 June 2021 and 26 May 2022, you dealt with proceeds of crime totalling $273,837.49.
Taylor construction
4On 25 June 2021, a construction company, Taylor Construction, relying on fraudulent payment information, paid $17,902.50 into a CBA account (2214), controlled by you.
5On the same day, you transferred the monies into your personal CBA account (6646) and, between 25 and 28 June 2021, you disbursed the monies, from your 6646 account in 10 transactions, between two other CBA accounts (2214 and 1693) to conceal the true nature and origin of the funds.
6Between 25 and 28 June 2021, you withdrew $11,000 from your 1693 account at various ATMs.
Eaststone
7An English company, Eaststone was defrauded into making two payments, totalling $255,934.99.
8On 3 May 2022, East Stone paid $79,742.49 into a Bendigo bank account (“7760”).
9On 5 May 2022, East Stone paid $176,177.50 to the same account (“7760”).
10Before the payments were made you were communicating with Kingsley Obiadi, and also “Rockstar”, about the receipt and transfer of money. When Obiadi messaged you $176,000 was coming from the UK to Melbourne, you responded with details of the Bendigo bank account (7760). In one message you were warned “This a Bikeys we playing with bro”. [2]
[2] Summary of prosecution opening, [34].
11On 4 May 2022, all of the $79,742.49 was withdrawn from the Bendigo bank account. $9,000 was paid to one entity, $8,000 to another and $64,742.49 was deposited into your CBA 6132 account.
12On 5 May 2022, you transferred $62,742 from your CBA 6132 account to your CBA 8337 account.
13On 6 May 2022, all of the $176,177.50 was withdrawn from the Bendigo bank account. $48,000 was paid to 5 entities and $128,177.50 was paid into your CBA 6132 account.
14You then transferred $128,177 from your CBA (6132) account to your CBA 8337 account.
15On 9 May 2022, Obiadi sent you instructions for payment monies to a bank account he designated.
16On the same day:
(a) you transferred $100,000 from your 8337 account to your 8329 account;
(b) you then attempted to transfer $100,000 from your 8329 account to the account which Obiadi had nominated;
(c) when that failed you made two transfers, each of $50,000 from your 8329 account to your 6132 account; and
(d) you then transferred $49,000 from your 6132 account to Obiadi’s nominated account.
17On 11 May, at Obiadi’s direction, you transferred another $50,000 from your 6132 account to Obiadi’s nominated account.
18To conceal the nature and origin of the money which East Stone paid, between 6 and 26 May 2022, you transferred $180,532, in varying amounts, generally $10,000, from your 8337 account to your 8329 account.
19Your receipt of the monies, totalling $273,837.49 which Taylor Construction and East Stone had paid, and transferring them between your bank accounts and then to accounts overseas constitutes your dealing with proceeds of general crime.
20By your guilty plea, you admit:
(a) the monies were proceeds of general crime;
(b) you were reckless as to that fact; and
(c) your conduct concealed or disguised the nature, source and movement of the monies.
Objective seriousness
21In sentencing you, I must assess the objective seriousness of your offending.
22It is important to examine what you did in the commission of your crime. [3]
[3] Ansari [2007] NSWCCA 204, [123]-[124].
23The value of the money you dealt with is also “a highly significant matter”.[4]
[4] Kim & Fang v R [2016] VSCA 238 [61]; Arjuna Samarakoon [2008] VSCA 119, [68]; R v Jiao (2015) 251 A Crim R 236, [66].
24The financial benefit you received is another relevant factor,[5] as is your role. [6]
[5] Arjuna Samarakoon [2008] VSCA 119, [69] and [70].
[6] Kim & Fang v R [2016] VSCA 238, [61].
25A crime syndicate, which defrauded companies of invoice payments, used you as a “money mule”.
26You helped them to launder proceeds of crime totalling $273,837.49, which had been defrauded from two companies, over a 11 month period.
27You used a process known as “layering”, that is, making multiple bank transactions, between different accounts, to conceal true nature and origin of the money.
28It was relatively unsophisticated.
29It was not your money.
30You did your work at the direction of others, Obiadi and Rockstar. As a “money mule” you had a lesser role in the money-laundering scheme. And you were at the greatest risk of detection. [7]
[7] I was told police have not apprehended Mr Obiadi.
31The benefit to you was limited. You received $11,000 in connection with the Taylor transactions.
32While rockstar told you, in relation to the East Stone monies, you were getting “10%”, it appears that you transferred all the monies, which East Stone paid, to Obiadi, and others, at his direction, without any payment to you.
33You are not to be sentence for the fraud which others had perpetrated.
34When you offended, you had only irregular work. When police arrested you, on 28 November 2022, you had small quantities of cocaine (0.2 g pure) and cannabis (0.6 g). I accept you likely offended to get money to buy drugs.[8] I also accept you were likely misled to some degree.[9] While no excuse, it is some explanation and shows you were not motivated by simple greed.
[8] See reconnaissance release order assessment dated 2 December 2024.
[9] Psychological report of AustinCampbell dated 8 November 2024, [29] (Exhibit 1).
35Overall, I assess your offending to fall below the mid-range of objective seriousness of the offence of the type.
Arrest and interview
36When police arrested you, you gave them your phone number and told them you received money, which you sent to Nigeria, using bank accounts with CBA and HSBC. You said you were paid a commission for the transfers. You said sometimes you asked where the money was from; most of the time you did not. You said you didn’t know whether the source was illegal.
37You admitted the cocaine and cannabis, which they found at your home, were yours.
Procedural chronology
38In July 2023, you were charged with the Federal money-laundering offence and drug possession.
39A committal hearing, which was conducted on a limited basis, was held on 31 January 2024.
40On 30 April 2024, after a case assessment hearing, you indicated you would plead guilty to the charge on the indictment before the court.
41It is a plea made “at a relatively early opportunity” [10]
[10] Prosecution plea submissions, [27] (Exhibit B).
Criminal record
42You have no criminal record.
Personal circumstances [11]
[11] Your personal circumstances set out in the psychological report of Austin Campbell who assessed you on 11 September 2024 (Exhibit 1).
43You were born in May 2000 in Oyo State, Nigeria. You were 21 and 22 years old when you offended.
44You have three siblings.
45You grew up during the Civil War. When you were three years old your father was murdered. The family were additionally aggrieved because his killers were never charged.
46Your mother raised your siblings and you on her own. She worked hard to provide for you, but life was difficult. You struggled to cope with the loss of your father and, when you were around 10 years old, you started abusing alcohol and drugs and missing school. There was little mental health support available to you. You did start a university course when you were 17 but dropped out because you mental health was poor.
47In 2019, when you were 19, you emigrated to Australia hoping for a better life. You started an IT course and then a business administration degree. However, you were struggling mentally, and financially, and your grades were below par.
48You found it difficult to get work, particularly during covid lockdowns. You got limited “cash in hand” work and relied on friends for somewhere to live. Through a friend, you got work in the disability sector. You enjoyed the work, but it was inconsistent.
49In Australia, you relapsed into drug use. When you offended you were using cannabis and cocaine daily. Through the drug scene, you got involved in the index offending.
Psychological opinion
50A psychologist, Austin Campbell, examined you on 11 September 2024.
51You presented to him with significant symptoms of psychological distress. Using the DSM – V diagnostic tool, he assessed you suffer major depressive and substance abuse disorders.
52You appear motivated to address your mental health problems.
53He believes you would benefit from psychological intervention to develop insight into your mental health and develop adaptive coping strategies.
54In his opinion, imprisonment “is likely to [be] a more challenging experience [for you] than individuals who do not experience similar mental health issues” and your mental health would likely deteriorate.[12]
[12] Report of Austin Campbell dated 8 Noevmber 2024l, [41].
55You have been with your current partner for three years. It is a long distance romance as she lives in Brisbane. She has stood by you since you were charged with these crimes.
56You are a talented Afro beat musician. You have collaborated with other artists here, and from Africa. According to a friend,[13] who is a senior member of the Edo Club of Australia, your offending is entirely out of character for you. He knows you as a person who has a commitment to supporting others and who contributes positively to your Nigerian community.
[13] Letter of Yusef Abubakar (Exhibit 2).
57In discussions with him about your offending you have taken responsibility for your actions and expressed remorse for them.
58Another friend and his partner supported you in court.
59As a foreign national, you are living in Australia on a bridging “A” visa.
60Under the Migration Act, you are at risk of visa cancellation and deportation if you are sentenced to a term of imprisonment of not less than one year. [14]
[14] Migration Act1958 (Cth), s 501.
Defence submissions
61Mr Cash acknowledged your offending, because you dealt with a significant sum of money over an 11-month period, is serious.
62He submitted, relying on:
(a) your guilty plea;
(b) the admissions you made when police questioned you;
(c) your relative youth;
(d) your prior good character;
(e) the risk of your deportation; and
(f) your poor mental health,
I should impose a sentence which does not require your immediate incarceration.
Prosecution submissions
63The prosecutor, Ms Tatas, acknowledged subjective features in your favour, namely your guilty plea, your admissions to police, your relative youth and risk of deportation.
64She submitted, those factors notwithstanding, because of the seriousness of your offending, an immediate term of imprisonment is the only appropriate sentence for the money-laundering charge.
65She provided me with a helpful table of intermediate appellate decisions which indicate a range of sentences which have been imposed for similar offences contrary to s 400.4(2) of the Criminal Code.
Consideration
66Under the Code, money laundering offences are structured according to both the amount of money which is dealt with and the offender’s state of mind. [15]
[15] Kim & Fang v R [2016] VSCA 238, [56].
67“[T]he seriousness of the offence depends on the fault element involved and the value of the money at stake”. [16]
[16] Kim & Fang v R [2016] VSCA 238, [61].
68Your crime, with a fault element of recklessness, is a tier two or mid-range offence. A fault element of knowledge or belief is more serious, a fault element of negligence, less serious. [17]
[17] Criminal Code Act 1995 (Cth), Division 400.
69You dealt with money, more than $100,000. The code prescribes higher maximum penalties for larger sums; lower, for smaller sums.
70The maximum penalty of 10 years imprisonment is a guidepost to the seriousness of your crime.
71Sentencing patterns, revealed in comparable cases, are another guide. [18]
[18] R v Pham (2015) 256 CLR 550, [26].
72And, consistency in federal sentencing is important.[19]
[19] R v Pham (2015) 256 CLR 550, [23], [26]; Hili v The Queen (2010) 242 CLR 520, [24]-[25].
73The applicable sentencing principles are set out in Kim & Fang v R [20] and Palmisano. [21]
[20] [2016] VSCA 238, [61].
[21] [2021] VSCA 124, [24].
74As the Court of Appeal said in Kim[22] “[A] person who landers money is an important cog in the wheel of organised crime and such conduct warrants severe punishment in which general deterrence is to be given significant weight”.
[22] [2016] VSCA 238, [61].
Conclusion
75By s 16A of the Crimes Act1914 (Cth), I am required to impose a sentence that is of a severity that is appropriate in all the circumstances of your offending.
76I am satisfied a sentence of imprisonment is the only appropriate sentence in your case.
77
I am also required to have regard to the non-exhaustive list of matters in
sub-s 16A(2) of the Crimes Act1914 (Cth) as far as they are relevant and known to the court.
78There are significant subjective factors which mitigate the sentence I should impose.
79Firstly, your guilty plea has high utilitarian value because a trial has been avoided.
80Secondly, I accept:
(a) your cooperation with police;
(b) your guilty plea, and its relatively early timing; and
(c) your expression of regret to your friend, [23]
demonstrate you are remorseful.
[23] Letter of Yusuf Abubakar (Exhibit 2).
81Thirdly, you are a person of otherwise good character. These crimes are your only offending. You have led an otherwise blameless life. Your response to your bail has been positive. You have not reoffended. More, you have contributed significantly to your Nigerian community.
82Fourthly, you struggle with your mental health. You need treatment for anxiety and depression and you need drug and alcohol counselling. Jail may be more challenging for you than for prisoners without your mental health issues. And your mental health may deteriorate in prison.
83While I am not satisfied Verdins principles are enlivened, your mental health issues are relevant nevertheless.
84Fifth, as a Nigerian national, given the prison sentence I will impose, you may be liable to deportation.[24] I accept you are anxious about the risk and, if you are deported, you will lose any opportunity to continue to reside in this country which, you have made your home.[25]
[24] Migration Act 1958 (Cth), s 501(3A).
[25] Guden v The Queen [2010] VSCA 196, [25] – [27]; Hiu Mei Lam v R [2021] VSCA 241, [38].
85Sixth, it is more than 2 ½ years since you committed these crimes. While the delay between your offending and sentencing is not excessive, you have suffered a natural anxiety in relation to your future, which is additional punishment. You have also advanced your rehabilitation, which, if interrupted by incarceration is, to a degree, an unfairness. [26]
[26] R v Merrett, Piggott and Ferrari (2007) 14 VR 392, [35]-[37].
86Seventh, as a relatively young person, your rehabilitation is an important sentencing factor. If you are to reform, change must come from within you. [27] In my view, provided you address the mental health and drug dependence problems, you have positive prospects of rehabilitation.
[27] Azzopardi v The Queen [2011] VSCA 35 VR 43.
87In all the circumstances of the case, I have decided a sentence of imprisonment, which you are not required to serve immediately, can achieve all sentencing objectives.
88By the sentence I impose I must denounce your conduct, punish you and deter you and others from committing crimes of the same or similar kind. I must also look to your rehabilitation.
89Considering the circumstances of your offending, your personal circumstances and antecedents, and endeavouring to produce a sentence which reflects and promotes the purposes of sentencing in a manner appropriate to you on the charge of engaging in conduct in relation to money valued at $100,000 or more that is proceeds of general crime, contrary to subsection 400.4(2B) of the Criminal Code (Cth), you are sentenced to 18 months imprisonment which is to commence today.
90I order your release forthwith upon you giving reconnaissance of $1,000 to comply with the conditions that you:
(a) be of good behaviour for a period of 18 months;
(b) be subject to the supervision of a probation officer for a period of 18 months;
(c) obey all reasonable directions of the probation officer;
(d) not travel interstate or overseas without the written permission of the probation officer;
(e) undertake such treatment or rehabilitation programs that the probation officer reasonably directs;
(f) report to the community corrections Centre at Melton within two clear working days of today;
(g) report to, and receive visits from, a community corrections officer; and
(h) notify an officer at the specified community corrections centre of any change of address or employment within two clear working days after the change.
91This means:
(a) you will be released today.
(b) the conditions of the reconnaissance are that you be of good behaviour for 18 months, in addition to the other conditions I have specified relating to your obligations to the probation officer who will supervise your reconnaissance.
(c) if you fail, without reasonable excuse, to fulfil the conditions of your order you will be liable:
(i)to be fined for the breach; and
(ii)to be imprisoned for the 18 months which you would otherwise have served in the community.
92While there is some artificiality in the process, I declare, under s 6AAA of the Sentencing Act1991 (Vic), but for your plea of guilty, I would have imposed a total effective sentence of two years and three months imprisonment and fixed a minimum non-parole period of one year and two months.
93Because you had small quantities of each drug, which, I accept, were for your personal use, on the charges of possessing cocaine and possess cannabis, I impose an aggregate fine of $500, without conviction.
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