Director of Public Prosecutions v Ahmad

[2019] VCC 453

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR‑17‑00993
CR‑17‑00994
CR‑17‑00995
CR‑17‑00997

THE QUEEN

v

MATEEN AHMAD
MOHAMMAD HUMAYAN
UMAR SHAHID
WASEEM SHAHID

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JUDGE:	HIS HONOUR JUDGE O'CONNELL
WHERE HELD:	Melbourne
DATE OF HEARING:	13 February 2019
DATE OF SENTENCE:	27 February 2019
CASE MAY BE CITED AS:	DPP v Ahmad & Ors
MEDIUM NEUTRAL CITATION:	[2019] VCC 453

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Dishonestly influencing Commonwealth Public Official; Offending not for financial gain; Main offender to be distinguished from 3 co-offenders; Repeated dishonesty of main offender undermined integrity of Australian immigration and citizenship process; Co-offenders excellent prospects for rehabilitation; Significant contributions to the community; Early pleas of guilty.

Legislation Cited:                   Criminal Code (Cth), Crimes Act 1914 (Cth), Australian Citizenship Act 2007 (Cth), Sentencing Act 1991 (Vic).

Sentence:(Mohammad Humayun) 12 months imprisonment – Released after three months upon entering into recognizance for the sum of $3,000 and agreeing to comply with condition to be of good behaviour for period of nine months.

(Mateen Ahmad, Umar Shahid, Waseem Shahid) – Convicted and fined $3,000. Stay of 3 months.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr J. Dickie	Commonwealth Director of Public Prosecutions
For Accused Ahmad For Accused Humayan For Accused U. Shahid	Mr I. Polak Mr C. Terry Dr M. Fitzgerald	Greg Thomas Patrick Dwyer Dooge + George
For Accused W. Shahid	Mr B. Johnson	Tony Hannebery Lawyers

HIS HONOUR: 

1Mohammed Shahid Humayun you may be seated. Mateen Ahmad also known as Awais Shahid, Waseem Shahid and Umar Shahid, you can all be seated if you would please - you have each pleaded guilty to one charge of dishonestly influencing a Commonwealth Public official contrary to subsection 135.1 (7) of the Criminal Code (Cth).

2Mr Dickie, who appeared on behalf of the Commonwealth Director of Public Prosecutions, tendered a summary of prosecution opening for plea which set out the details of your offending.

3Briefly put that offending involved the following:

4Between 22 May 2006 and 5 March 2014 you, Mohammed Shahid Humayun, made applications for Australian citizenship on behalf of 11 people with the intention of dishonestly influencing the Secretary of the Department of Immigration and Multicultural Affairs in the exercise of their official duties.

5Each of the applications you submitted were supported with false information claiming that you, Mohammed Humayun, were the applicants' father.

6Three of the people on whose behalf you made those applications were the other indicted offenders.

7By operation of section 16 of the Australian Citizenship Act 2007 (Cth), a person born outside of Australia in circumstances where at least one of that person's parents was an Australian citizen, may be eligible for Australian citizenship. Your offending involved false claims of fatherhood which was intended, and did, influence the assessment of each applicant's eligibility for Australian citizenship based on descent.

Mohammed Shahid Humayun

8You, Mr Humayun, were born in Pakistan and first travelled to Australia in 1977. On 3 April 1985 you were granted Australian citizenship under the name Shahid Mohammed.

9In the early 1980's you married your first wife Iffat Parveen [Iffat]. It is likely that you had four children of that marriage born in 1982, 1993, 1996 and 1997. In January 2002 Iffat travelled to Australia with her four dependent children. She was able to do so after you lodged applications to sponsor her. Iffat it seems, has lived with you in Fitzroy since that time.

10In April 1986 you married your second wife Shabana Mazhar [Shabana] in Pakistan. There was one child of that marriage, Asad. You left Pakistan shortly after Shabana fell pregnant and did not return until 1992. When you returned you divorced Shabana. She continues to live in Pakistan.

11In mid-2008 you assisted Asad to successfully apply for Australian citizenship. He travelled to Australia on 30 June 2008. It seems that the information Asad was later able to supply to investigators enabled them to piece together the true nature of your familial relationships and the falsity of the applications for Australian citizenship you supported.

Mateen Ahmed

12In May 2006, you Mateen Ahmed submitted an application for Australian citizenship in Islamabad, Pakistan. The application falsely stated that Mr Humayun was your father and Shabana was your mother. It also falsely asserted Shabana was deceased. The application was supported by a false birth certificate and other forged official documents purporting to confirm that Mr Humayun was your father and that Shabana was your deceased mother.

13Mr Humayun forwarded documents to the Department in Australia and the Australian High Commission in Islamabad supporting the application.

14In May 2007 that application was approved and you travelled to Australia in May 2008.

15When interviewed by police you made full admissions about this matter. You confirmed that Mr Humayun and Shabana were not your natural parents. You stated that Mr Humayun was your brother in law and had helped you put the application together. You said you had obtained a bachelor degree in Pakistan and had worked in the poultry industry. You forged the application in order, you said, to have a better life in this country.

16Mr Humayun assisted you because there is a cultural expectation, as it was put, that close relatives help in this way. You did not pay him for his assistance. You said it was not difficult to obtain the false documents in Pakistan.

Waseem Shahid and Umar Shahid

17As to Waseem Shahid and Umar Shahid, on about 20 September 2010 applications for Australian citizenship were lodged by both of you with the Australian High Commission in Islamabad. Each application falsely claimed that Humayun and Shabana were your parents. Humayun's personal details were provided and he was nominated as your representative in Australia as the responsible parent.

18The applications were accompanied by false documentation purporting to show your eligibility for Australian citizenship, including a false family registration certificate indicating that you were two of ten sons and two daughters of Humayun and Shabana.

19On 19 April 2012, the applications were approved. On 9 June 2013 you both travelled to Australia.

20In mid-2016 you were each interviewed by police as to these allegations. Both of you denied knowingly making false applications and maintained that you were the children of Humayun and Shabana.

Further Applications by Supported by Mohammed Humayun

21As to further applications that were supported by Mohammed Humayun.  Beyond those three applications, eight further false applications were lodged between May 2006 and March 2014, all relating to young people claiming you Mr Humayun as their father. Similar false documents were provided in support of those applications and on each occasion you would sign as the responsible parent where the child was under 18. You would forward the required documents to the High Commission in Islamabad or to the Department here in Australia. You would sign declarations that the information supplied was complete, truthful and correct in every detail.

22Accordingly, multiple false documents were provided to the Department, many of which appear to have been copied or duplicated from other documents submitted for earlier applications.

23Six of those, the subject of these eight further applications, travelled to Australia on the basis of citizenship obtained fraudulently. Two of those applicants have now returned permanently to live in Pakistan. One of the applicants, despite being granted citizenship did not travel to Australia. The last application was refused, and was not granted citizenship.

24You, Mr Humayun, were arrested on 7 April 2016 and when interviewed made some admissions but denied intentionally providing false information in support of the applications.

25I note that all four of you voluntarily provided DNA samples which assisted investigators to resolve this matter.

Personal Circumstances – Mohammed Shahid Humayun

26As to personal circumstances, you, Mohammed Shahid Humayun, were born on 1 January 1954 in Lahore in Pakistan and are now 65 years of age. You live with your first wife Iffat. There are 5 children of that relationship and also the son Asad from your relationship with Shabana.

27You completed a Bachelor of Arts in Pakistan in 1975. You showed aptitude in cricket and first came to Australia in 1977 in order to play cricket competitively. You obtained a work visa and remained in Australia gaining employment as a machine operator before opening your own restaurant which you operated until 1985.

28In August 1986 you commenced serving a sentence of 14 years imprisonment with a non-parole period of eight years for importing narcotics. The details of that offending were not provided to me during the course of your plea. You were released in 1992 and returned to Pakistan apparently in breach of your parole. You returned to Australia in 2001 and served about 3 months further imprisonment for the parole breach.

29You then worked casually driving taxis but qualified for a disability pension in about 2004. You had been diagnosed with a malignant tumour to your right arm in 2003 and, although that condition is in remission, you suffer from chronic pain, diabetes and hypertension and are unable to work.

30I was told that in keeping with your culture, you are seen as the head of your extended family. One of your brothers is deceased and you have assumed the obligation of assisting his children and other family members living in poverty in Pakistan.

31Mr Terry, who appeared on your behalf, emphasised that your offending was not for material gain but rather for the altruistic purpose of assisting impoverished members of your family. That is a very important mitigating factor. He also referred to the strong utilitarian value of your plea of guilty and to your cooperation in voluntarily supplying a DNA sample.

Personal Circumstances – Mateen Ahmed

32You were born in Lahore on 18 September 1974 and are now 44 years of age. You are the youngest of eight children. Your father died when you were 14 and you had to struggle to get an education. In doing so you would support yourself working as a teacher or tutor. Once you had completed your high schooling, you went onto obtain a university degree in Agriculture, and thereafter a master’s degree in that discipline.

33Before coming to Australia, you worked at a poultry farm for about 5 years ultimately becoming the farm manager.

34You became increasingly concerned about the political violence and unrest in the area in which you lived and worked in Pakistan and in that context sought to come to Australia. You committed this offence by utilising your connection with Mr Humayun through your sister, who is his wife.

35Initially you were unable to find work and undertook extensive study to gain some nursing qualifications and a certificate in Aged Care. You then worked at Manningham Aged Care Home for 5 years. A reference from a work colleague Vikas Sharma, confirms that you were highly valued in that facility.

36You then gained employment at a farm in Bannockburn and rose to become the farm manager. You live on that farm now and I was told you have become indispensable to its operations. Vaughan Salinger, a Senior Manager with the company Turosi Foods, provided a reference in which he confirms that because of your work performance you were promoted to the position of farm manager. He states:

“Since Awais commenced in the management role I have been working closely with Awais and find him to be very trustworthy, reliable and hard-working employee who has added enormous value to his role. Awais is a very caring person and a great asset to Turosi.”

37You are also married now. Your wife only came to Australia in 2011, her English is limited and she is wholly dependent on you.

38Your income, which is modest, is used in part to support your extended family in Pakistan, many of whom are in difficult circumstances.

39You have no prior convictions in Australia or Pakistan.

40Mr Polak, who appeared on your behalf emphasised your plea of guilty, your full confession and your outstanding contribution to this country since you came to Australia as mitigating your position significantly. Unlike your co-offenders you have spent eight days in custody by way of pre-sentence detention. He further submitted that the uncertainty as to your immigration status has weighed heavily upon you since you were interviewed in April 2016.

Personal circumstances – Waseem Shahid

41You are now 26 years of age but you were 18 years of age at the time of your application for citizenship. You came to this country in 2013. Your family were poor, your father was only sporadically employed, whilst your mother cared for your younger brothers.

42According to Mr Johnston, who appeared on your behalf, you made the false application for citizenship with the knowledge of your family. In your circumstances in Pakistan at that time it was really your only hope for a better life. It was also expected that you would materially assist your family back in Pakistan once you came to this country.

43Since arriving here, you have lived a quiet hard-working life. You have no prior or subsequent convictions. You initially studied English through the Victorian Certificate of Applied Learning. You then went on to complete a Certificate IV in Accounting, a Diploma in Accounting, an Advanced Diploma in Accounting and then ultimately a Bachelor of Accounting at RMIT. To support yourself you worked as a cleaner throughout 2014 and then got a position at Woolworths as a night filler, initially part-time, now you work there as a full-time manager.

44A significant matter put in mitigation on your plea, was the contribution you have made to the community. You are a keen cricketer and played with the Melbourne University Cricket Team before joining the Moorabbin Cricket Club in 2017.

45At that club you would spend a considerable amount of your spare time helping to train the All Abilities team which consists of players with acute autism, down syndrome and other intellectual disabilities who require constant supervision and supportive coaching. Your commitment to these players has, according to the President of the Melbourne All Abilities Cricket Association, Mr Stephen Lefebvre, been extremely impressive. In a very helpful reference, Mr Lefebvre speaks of you having shown yourself to be a kind, considerate, and compassionate individual who has shown a strong interest in working with vulnerable members of our community making them feel connected and valued.

46Mr Johnston explained your initial denials to investigators as resulting from panic and relies on your otherwise impressive character, your plea of guilty, the fact that you were so youthful at the time you committed this offence, the uncertainty that hangs over your immigration status and your excellent prospects for rehabilitation.

Personal circumstances – Umar Shahid

47You were 20 years of age at the time you made this false application for citizenship. You are now 28 years of age. You also have no prior or subsequent convictions.

48You were born in Lahore in Pakistan. Your mother died when you were two years of age. Your father supported you and your two older brothers by working as a farm labourer in rural areas outside of Lahore. There was no stable income and you lived with extended family in impoverished circumstances.

49You attended a government school up to the eighth grade but you were unable to continue your education without further financial assistance. Thereafter you worked in short term jobs on farms or as a delivery courier. In the time leading up to your decision to come to Australia you and your family's economic circumstances had deteriorated all the more, and in that context you committed the offence in order to make a better life for yourself and assist your family back in Pakistan.

50When you came here you initially found work in a poultry processing plant where you worked for two years after which you worked as a cleaning contractor. Since 2017 you have been employed at a pizza restaurant in Glenroy. You have also completed further educational certificates in security operations and meat processing.

51Dr Fitzgerald, who appeared on your behalf, relied on your relative youth at the time of the commission of the offence, your otherwise good character, your plea of guilty, the uncertainty that attaches to your immigration status and, what was submitted to be, your excellent prospects for rehabilitation.

Prosecution Submissions

52The prosecutor, Mr Dickie, submitted that general deterrence must have significant weight in a case of this kind and that was so because each false application lodged with Mr Humayun's assistance tended to undermine the integrity of the Australian citizenship system.

53He submitted that it did so in circumstances;

a.Where the offending occurred over an eight-year period between 2006 and 2014;

b.Where false applications in the names of 11 applicants for citizenship were submitted;

c.Where Mr Humayun falsely asserted that he was the father of each of the applicants and that Shabana was their mother; and

d.Where the documents that needed to be provided to support these applications were also forged.

54Mr Dickie submitted that there are many applications for Australian citizenship or entry into Australia which are not successful. It would be no doubt tempting, particularly in respect of family members, to assist others in gaining citizenship or entry by providing false information to support applications. That is particularly so given, as the evidence suggests in this case, that in many countries false certificates may be easy to obtain. The Australian system relies on the honesty of applicants and the legitimacy of the documents they provide – this conduct, Mr Dickie said, undermines the integrity of that system.

55He submitted that the only appropriate penalty to be imposed in Mr Humayun's case was one involving immediate imprisonment.

56Mr Dickie, submitted, however, in respect of the other three offenders that imprisonment whether immediate or suspended was not appropriate. He suggested, very different sentencing considerations applied and a penalty in the form of a fine or Community Corrections Order was open.

Findings

57The maximum penalty for this offence is a term of five years' imprisonment and/or a fine of what is in effect up to a maximum of $6,600.

58In your case Mr Humayun, I accept your counsel's submissions that your offending lacks what would otherwise be a significant aggravating feature, namely committing this offence for profit. Your prior conviction is of only limited relevance and the sentence imposed in your case should be discounted significantly by reason of your plea of guilty.

59That said, I also accept the prosecutor's submissions that your repeated dishonesty undermines the integrity of that part of the immigration system which provides for access to Australian citizenship through familial descent. Your conduct exploited and breached the trust on which that system in part depends. It is vitally important that confidence in that system be maintained. Accordingly, the sentence I impose, must seek to deter you and others from engaging in like behaviour. It must also adequately punish you.

60Section 17A of the Crimes Act 1914 (Cth) directs that the court may only impose a sentence of imprisonment if it is satisfied that imprisonment is the only appropriate sentence. In your case Mr Humayun I am so satisfied.

61Would you stand please, Mr Humayun?

62Mohammed Humayun on the charge of dishonestly influencing a Commonwealth Public official you will be sentenced to 12 months' imprisonment and I will direct that you be released after the service of three months' imprisonment on a recognizance release order in the sum of $3,000. The service of that sentence of three months' imprisonment is to commence today.

63I will further declare pursuant to section 6AAA of the Sentencing Act 1991 (Vic) that but for your plea of guilty Mr Humayun, I would have sentenced you to 18 months' imprisonment and set a recognizance release order after 12 months. You may be seated please.

64In the case of you, Mateen Ahmad, you, Waseem Shahid and you, Umar Shahid, I have been particularly impressed with the manner in which all of you have applied yourselves to living productive lives in this country. You have all made significant contributions and it seems to me that you are now entitled to call on those contributions in support of your pleas in mitigation. You each have, in my view, excellent prospects for rehabilitation.

65I do not lose sight of the fact that each of you dishonestly obtained your Australian citizenship and your right to be in this country, and that is a serious matter. Your actions also contributed to an erosion of confidence in the Australian immigration system, but it should be said not to the extent of that of your co-offender Mr Humayun.

66Although you Mateen Ahmad, were much older than Waseem and Umar Shahid at the time you committed this offence, I have determined that you should be treated in the same way as your two younger co-offenders, having regard to the fact that you have served eight days of pre-sentence detention and, unlike your co-offenders, made a full confession.

67Mateen Ahmad, Waseem Shahid and Umar Shahid on the charge of dishonestly influencing a Commonwealth Public official you will each be convicted and fined the sum of $3,000. 

68You may each be seated for the moment, please.

69Mr Dickie, it is necessary, as I understand it, to nominate the agency to which the fine is payable under the Crimes Act.  Is that your understanding?

70MR DICKIE:  Not, Your Honour.  In fact, simply ordering the fine as Your Honour has done suffices in my submission.  Yes.

71HIS HONOUR:  It suffices.  I see, and there's no – is it appropriate to order a stay in respect of the payment of the fine?

72MR DICKIE:  There's certainly no objection to that taking place, Your Honour.

73HIS HONOUR:  I think given that it's a Commonwealth matter I should make an order as for stay.  I think in the circumstances unless counsel have anything to say I'll order a stay of three months.

74UNIDENTIFIED SPEAKER:  As Your Honour pleases.

75HIS HONOUR:  Yes.  Are there any other matters, Mr Dickie, arising out of those sentencing remarks?

76MR DICKIE:  Only with Humayun, Your Honour, my instructor is preparing a recognizance release order at the moment.  The only matter that I didn't pick up from what Your Honour outlined was the period over which Mr Humayun needs to be of good behaviour upon his release from custody.

77HIS HONOUR:  Yes.  I intend that that be the balance of the order.

78MR DICKIE:  The balance of the period.

79HIS HONOUR:  So the nine-month period.

80MR DICKIE:  Yes, Your Honour.  Your Honour, that order has been prepared.  Ordinarily Mr Humayun's ‑ ‑ ‑

81HIS HONOUR:  Yes.

82MR DICKIE:  ‑ ‑ ‑ counsel would explain the order briefly to Mr Humayun, who will sign the order and then Your Honour signs the order after that.

83HIS HONOUR:  Yes.  Would you mind assisting if you could please, Mr Terry.

84MR TERRY:  Yes.  Thank you, Your Honour.

85HIS HONOUR:  Thank you very much.  While that is being done, Mr Dickie, I'll just provide to you a copy of a relevant reference in the practice note concerning Commonwealth fines.  My associate will provide that – well, Mr Carlyle, would you mind providing that to Mr Dickie please.  Your instructor might have a quick look at it.

86MR DICKIE:  Sorry, Your Honour, with the recognizance release order that's been signed, ordinarily that's done before the associate.  The associate is present in court and can see that being done so I don't think there's any need for Your Honour's associate to go across there.  But if that could be done that would be good.  Your Honour, with the practice note - which I confess I was not aware of, so – I may have read it at some point but certainly I'm obliged that Your Honour has brought it to my intention. 

87But, Your Honour, even though it does refer to where some fines are imposed, again in my submission where it's simply a pecuniary penalty order or a fine that's been imposed there is no need for any beneficiary details form to be completed.  The form will simply go into the general fund that any fine that's paid to this court would go into.  That's certainly my experience in the Magistrates' Court from some time ago.

88HIS HONOUR:  Yes.

89MR DICKIE:  It is some time since I've had a fine imposed in a matter, Your Honour, but my instructor is indicating there's no change with that situation.

90HIS HONOUR:  If your instructions are along those lines, Mr Dickie, that's not a problem.

91MR DICKIE:  Yes, thank you, Your Honour.  And, Your Honour, that form has been signed.

92HIS HONOUR:  I think Mr Ahmad, Mr Shahid and Mr Shahid can now come out of the dock.  There's no reason why they should remain in the dock, Mr Dickie, is there?

93MR DICKIE:  No, Your Honour.

94HIS HONOUR:  Mr Humayun, I must explain to you that although you have been sentenced to 12 months imprisonment, upon the expiration of three months of that period you will be entitled to be released provided that for the next nine months after that time you are of good behaviour and that in if you were to breach that recognizance during that nine month period, you would find yourself liable to forfeit the sum of $3,000 and you may also be brought back before me for the purpose of resentencing.  Do you understand that?

95OFFENDER:  Yes.

96HIS HONOUR:  Yes, thank you.  You may take a seat.  Ms Boe, I notice that there might now be an interpreter in court, and with the benefit of that interpreter you might ensure that what's been said is properly understood by your client.

97MS BOE:  Yes, Your Honour.  Yes.

98HIS HONOUR: Mr Dickie, it might be that if the fine imposed is more than ten penalty units, as it is on this occasion, that that provokes the necessity to make an application under 6AAA of the Victorian Sentencing Act, assuming that is picked up by the Judiciary Act.  If that be so, and I'm not entirely sure that it is, but to ensure that there is compliance with the provision if that's the case, I'll make a declaration that but for the pleas of guilty in respect of those three offenders I would have sentenced those offenders to a term of imprisonment of four months.

99MR DICKIE:  I'm obliged, Your Honour.  And, Your Honour, my instructor will chase up that issue.  Your Honour is quite right it does list Commonwealth fine.  I'm not quite sure why the practice note does that but it will be chased up.

100HIS HONOUR:  Yes.

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