Director of Public Prosecutions v Ahmed
[2023] VCC 1548
•30 August 2023
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTION
CR 19-00223
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| SAMER AHMED |
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JUDGE: | HIS HONOUR JUDGE JOHNS |
WHERE HELD: | Melbourne |
DATE OF HEARING: | 3 May 2023 and 14 August 2023 |
DATE OF SENTENCE: | 30 August 2023 |
CASE MAY BE CITED AS: | DPP v Ahmed |
MEDIUM NEUTRAL CITATION: | [2023] VCC 1548 |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW - Sentence
Catchwords: Obtaining financial advantage by deception – Seven charges – Course of conduct – Recklessness as to falsity of representations – $431,288 in WorkCover payments obtained by deception – Psychiatric workplace injury – Repeated signed declarations containing false representations – Application of Verdins principles – Seven year delay
Cases Cited: R v Verdins (2007) 16 VR 269
Sentence:Total effective sentence of 22 months’ imprisonment with a non-parole period of 8 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms N. Kaddeche with | Office of Public Prosecutions |
For the Accused | Mr J. Wheelahan with | Slades & Parsons Criminal Law |
HIS HONOUR:
1Samer Ahmed, on 5 April this year, following a six-week trial, you were convicted of seven charges of obtaining a financial advantage by deception. Six of the seven charges were course of conduct charges.
2The maximum penalty for obtaining a financial advantage by deception is 10 years' imprisonment. You have no relevant prior convictions.
3I do not propose to set out in any detail the circumstances of offending. The evidence in the trial was voluminous. Around 30 witnesses were called. Several hundred documents were relied upon in the evidence. You counsel ran an expert defence on your behalf. Ultimately the jury rejected all hypotheses consistent with innocence.
Circumstances of Offending
4In respect of each charge the jury was satisfied beyond reasonable doubt that you obtained WorkCover payments as a result of two false representations made by you:
(a)That you had not been engaged in any form of paid employment, self‑employment or voluntary employment during the charge period; and,
(b)That you were not capable of being engaged in any form of paid employment, self-employment or voluntary employment during the charge period.
5In respect of Charges 4 to 8 the jury was satisfied that you were a joint owner of the business Kindaland during each charge period. As an owner you were entitled to payment in money or otherwise. The jury found that you worked in the business during each charge period.
6The jury rejected the proposition that you were working purely for therapeutic purposes on an ad hoc basis. The jury rejected this as being a reasonable possibility open on the evidence. The jury inferred your proprietary interest and work in the business to the exclusion of other reasonable possibilities raised on the evidence.
7The jury were also satisfied that during these periods you falsely represented that you were incapable of the said employment.
8Those findings necessarily involved the jury rejecting expert evidence to the contrary to the requisite standard. Key aspects of the evidence of Amer Ahmed, Hend Ibrahim and Mohammed Ahmed were also rejected by the jury.
9Given the breadth of the expert evidence and the breadth of the documentary evidence in the case, a crucial matter for consideration of the jury must surely have been your scarce reference to the considerable activities you were engaged in regarding Kindaland when examined by the treating professionals.
10A brief chronology of the circumstances underpinning your offending across Charges 4 to 10 provides a useful summary:
(i)In 2005 you were a school principal at East Preston Islamic College. You suffered a workplace injury, which led to you suffering a major depressive disorder and anxiety.
(ii)You submitted a WorkCover claim on or about 15 March 2006 to CGU as agent for Victorian WorkCover Authority. You commenced on WorkCover payments stating that you had sustained a major stress injury while working as Principal at the college.
(iii)Your claim was accepted by CGU in April 2006 and regular payments were made to you.
(iv)Certificates of capacity were provided by you with a declaration signed by you and the signature of a medical practitioner. Those certificates of capacity were at the centre of the trial. I will not reproduce herein the declaration that form part of those certificates of capacity. Suffice to say the declaration underpins the alleged false representations located in each charge.
(v)In May 2006 you and members of your family purchased property at 51 Gladstone Parade, Glenroy.
(vi)In 2006 to 2008 the property was developed for the purposes of setting up and operating a childcare centre.
(vii)During 2006 to 2008 you were involved in engaging contractors for the development of the site and the application for planning permits. There was documentary support for the proposition that you were a director of the not yet operating Kindaland business during this period. You were also involved with the hiring of staff.
(viii)Charge 4 relates to a period 18 June 2009 to 31 December 2009. Kindaland was trading during this period. The evidence reveals you were involved in the running of Kindaland in this period, including paying invoices, dealing with supplies, communications with VWA via Gallagher Basset. You supplied certificates of capacity on a regular basis throughout this period. The sum you obtained based upon false representations (a) and (b) in this period was $36,380.
(ix)Charge 5 relates to the period between 1 January 2010 and 31 December 2010. Kindaland was trading in that period and you were involved in the running of the business. Amongst other activities, you were involved in the purchase of supplies and equipment, payment of invoices, maintenance of staff superannuation payments, reporting to VWA via Gallagher Bassett. You supplied certificates of capacity on a regular basis throughout this period and the sum obtained due to false representations during this period was $69,752.
(x)Charge 6 relates to the 2011 year. During that year you continued to perform work within your business. Examples of your work included the maintenance of staff superannuation payments, the purchase of supplies and paying of invoices, matters related to the termination of Birsen Ozen and Fair Work Australia. A finance application with National Australia Bank on behalf of Kindaland during this period was also a central piece of evidence in the case. The sum obtained by false representations during this period was $71,698.
(xi)Charge 7 relates to the 2012 year. During that year you performed similar tasks as in previous years for the Kindaland business. State Revenue Office Victoria correspondence describes you as payroll officer for the business. The sum obtained during this period was $75,240.
(xii)Charge 8 relates to 2013 and during that year you also performed similar tasks in the furtherance of Kindaland operations as you had in previous years. In this period you were also involved with the WorkCover claim of Denise McGrath. There was evidence of you sending and receiving correspondence on behalf of Kindaland, for example, staff wages to VWA via Gallagher Bassett. The sum obtained during this period was $77,560.
(xiii)Charge 9 relates to 2014. There was evidence of your involvement of the operation of Kindaland as in previous years. The ongoing claim of Denise McGrath and the Jacinta Lee WorkCover claim are examples. The Kindaland business was sold in October 2014. During this charge period the prosecution also relied upon work done by you in relation to Halal certification and in particular attendances at Nolan Meats and Grove Juice. The sum obtained during this period was $80,188.
(xiv)Charge 10, this charge relates to voluntary work, conducting a Halal audit at Rio Tinto and also some training. The relevant period is 12 May to 12 August 2015. The amount of $20,410 was received during this period.
(xv)In 2015 you inadvertently sent CGU a 'Registration for WorkCover Insurance Form' instead of your scheduled certificate of capacity. CGU advised the Enforcement Group at the VWA.
(xvi)On 11 March 2016 your WorkCover claim was denied after an investigation and payments ceased.
(xvii)You were charged after further investigation on 23 March 2018.
Objective gravity of offending
11Objectively speaking, Charges 4 to 8 on the indictment represent very serious examples of dishonesty for the following reasons.
·They span several years involving repeated signed declarations containing false representations.
·The degree of deception in falsely representing you were incapable of any form of paid employment was high considering the number of consultations you had with treating professionals over a considerable period of time, during which you withheld the true position as to your capacity.
·Offending of this nature is difficult to detect.
·The total sum of money involved is considerable.
·Your financial circumstances were far from desperate. You had means during the charge period. You were also aware that the Kindaland business was a profitable business run by you and your family.
12I sentence you on the basis that you were reckless as to the falsity of the representations.
13In respect of Charge 9, I find that I must sentence you on the basis that the jury found your Halal certification work to be the relevant work which made out the charge. Accordingly, the objective gravity of offending for this charge is considerably less than for Charges 4 to 8.
14In relation to Charge 10 the essence of the criminality relates to your attendance for voluntary halal work on an occasion and attendance for training on another occasion.
15The case went to the jury as one of entitlement rather than actual payment. The consequence of this is I do not sentence you on the basis that you were 'double dipping' throughout the charged period, to borrow Mr Wheelahan's terminology.
16General deterrence and denunciation are significant sentencing considerations that I must have regard to and I do so. Specific deterrence is also a matter which carries some weight in your case.
Moral culpability
17I accept that the depressive condition you suffered in the workplace persisted throughout the charged period. I accept that this condition inhibited your capacity for work, your self-esteem and your perception of your own capacity. I also accept that symptoms of the condition clouded your outlook and your judgement over the period. To some slight degree I find this mitigates moral culpability.
18While I am not sentencing you on the basis of receiving payment or benefits for work performed, your entitlement to considerable rent for the Gladstone Parade property from 2014, the improvements to the property over the charged period and the benefits to your family of the creation, development and sale of a profitable business are relevant to my assessment of your moral culpability for the offending.
Personal circumstances
19You are 54 years of age. You are a twin and your twin brother gave evidence favourable to you on your trial. Your twin brother was at all times a director and registered owner of the Kindaland business. You have a younger sister Zinab.
20You have four children with your wife Hend Ibrahim. Your wife also gave evidence on the trial. Your wife was involved with the operation of the childcare business during the charged period. I understand your wife continues to be involved in childcare enterprises.
21You live with your wife, children and elderly mother in Roxburgh Park. Your mother is 74. Your father is 85. Your parents separated several years ago. Your father gave evidence during your trial.
22You perform some light work within your father's accountancy practice under Centrelink auspices, from whom you receive benefits. I was told this was a Centrelink job incentive plan. More recently, I was told, you have been on a disability pension.
23Your youngest child is in his first year of school. He has learning difficulties and receives NDIS support. Your eldest has been diagnosed with schizophrenia. He has been involuntarily admitted in the past and is treated by Orygen Youth Mental Health Services.
24You are a devout Muslim man with a strong academic and work history prior to 2006. You have also shown considerable entrepreneurial skill and involvement in property development and other high-level business ventures since 2006. I make that finding based upon the voluminous body of evidence before the jury at trial.
25You have spent time at home caring for children over the years 2017 to 2018 whilst, as I understand it, your wife developed her skills in the childcare centre field.
Delay
26It is accepted by the prosecution that delay is a significant mitigatory factor in your case. Your crimes were first detected in March 2016. An investigation then took place. You were charged in March 2018.
27The coming of the pandemic caused significant further delays in your case. The matter was listed for trial in April 2020. Jury trials ceased in March that year. In any case, with hindsight, it is clear your trial was not ready to run at that time.
28Considerable pre-trial hearings and the taking of further evidence took place over 2020 and 2021.
29Your trial was listed in May 2022. Despite being four weeks or thereabouts into evidence the trial was abandoned due to COVID factors and restrictions. The trial was not able to be relisted until earlier this year.
30Seven and a half years' delay from the detection of the offence to sentence is an exceptional delay. Five-plus years between charging and sentence is also exceptional.
31The delays through this Court involved two lengthy and stressful trials. You have had the matters hanging over your head for a considerable period of time.
32You were 40 to 46 years of age during the offending. You are now a man of 54 years with a larger family and with a lengthier experience of mental health challenges in the context of the delayed resolution of the charges.
33I have already noted your absence of relevant prior matters. In the context of a seven-plus year delay the absence of subsequent matters is also noteworthy.
34I accept that delay is a significant matter in mitigation.
Mental health/hardship in custody
35A psychiatric report authored by Dr Jacques Claassen was tendered on your behalf. I accept the findings of Dr Claassen in that report.
36In particular I accept that your experience of custody will be harsher due to your major depressive disorder than it would otherwise be. I accept that imprisonment is likely to provoke acute relapse of psychiatric conditions.
37There is a risk of self-harm arising from the deterioration of your mental health that is expected for the reasons set out in Dr Claassen’s report.
38This is your first time in custody. In the context of your background and experience I am satisfied that significant mitigation flows from the application of the principles referred to as R v Verdins limbs 5 and 6.[1]
[1]R v Verdins (2007) 16 VR 269
Compensation application
39Application is made for compensation to Victorian WorkCover Authority in the sum of $431,288.
40I have had regard to your financial circumstances in determining the application. I was told that you currently receive around $1,000 per fortnight.
41I am aware, however, that you have considerable earning potential. You are well qualified. You have an impressive work history. You have previously had a considerable asset base. The business you ran with your brother was sold for a considerable profit. You have entrepreneurial skills and high-level business skills. Your wife remains connected to childcare businesses and I am satisfied that you have considerable contacts and business knowledge in this area.
42Due to your earning potential I propose to make a compensation order in a reduced sum. In part this reduced sum reflects the reduced criminality in Charges 9 and 10 given the basis I must sentence you on in respect of those charges.
Sentence
43I make a compensation order in the sum of $350,000.
44In relation to the charges on indictment, I sentence you, Mr Ahmed, as follows
45On Charge 4 you are sentenced to six months' imprisonment.
46On Charge 5 you are sentenced to nine months' imprisonment.
47On Charge 6 you are sentenced to 10 months' imprisonment.
48On Charge 7 you are sentenced to 10 months' imprisonment.
49On Charge 8 you are sentenced to 10 months' imprisonment.
50On Charge 9 you are sentenced to six months' imprisonment.
51On Charge 10, three months' imprisonment.
52Charge 6 will be the base sentence.
53Two months of each of the sentences imposed on Charges 4 and 5 will be served cumulatively on each other and on the sentence imposed on Charge 6.
54Four months of each of the sentences imposed on Charges 7 and 8 will be served cumulatively on each other and on the sentence imposed on Charge 6.
55That makes a total effective sentence of 22 months' imprisonment.
56Due to your depressive disorder and the hardship in custody that flows from this issue, due to the impact of delay and due to the family support and strong prospects of rehabilitation, I set a lower than usual non-parole period.
57The non-parole period I set is eight months.
58I declare pre‑sentence detention - I need the figure, Mr Carolan.
59MR CAROLAN: It's agreed to be 16 days not including today, Your Honour.
60HIS HONOUR: Sixteen days. I declare that there's 16 days' pre‑sentence detention already served.
61And as I say, I make the compensation order in the sum of $350,000.
62Are there any other orders required?
63MR CAROLAN: No, Your Honour.
64HIS HONOUR: Thank you, yes. Adjourn the court.
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