Director of Public Prosecutions v Alam
[2014] VCC 1884
•13 November 2014
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-01446
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| KH FAISAL ALAM |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 23 October 2014 |
| DATE OF SENTENCE: | 13 November 2014 |
| CASE MAY BE CITED AS: | DPP v Alam |
| MEDIUM NEUTRAL CITATION: | [2014] VCC 1884 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence - Making a false Commonwealth document - Falsely representing to be a Commonwealth public official – Plea of guilty
Legislation Cited: Crimes Act 1914 (Commonwealth)
Cases Cited: R v Wu District Court New South Wales dated 22 April 2014
Sentence:Total Effective Sentence 2 years’ imprisonment – To be released after serving 10 months’ imprisonment upon giving security by recognisance in the sum of $2,000 and to be of good behaviour for 5 years and to pay the Pecuniary Penalty Order in full by 30 June 2015
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr M Sinnett | Office of Public Prosecutions |
| For the Accused | Mr G Fitzmaurice | James Dowsley & Associates |
HER HONOUR:
1Kh Faisal Alam, you have pleaded guilty to one charge of making a false Commonwealth document and one charge of falsely representing to be a Commonwealth public official, both being offences under the Commonwealth Criminal Code.
2The date of the offending in respect of Charge 1 is said to be between 12 February 2011 and 14 June 2011. The date in respect of Charge 2 is said to be between 22 July 2011 and 23 July 2011, and to comprise seven separate occasions of falsely representing that you were an officer with the Department of Immigration and Citizenship.
3Charge 1 has a maximum penalty of ten years’ imprisonment and Charge 2 has a maximum penalty of five years' imprisonment. The maximum penalties reflect the seriousness with which the Commonwealth Parliament regards these offences.
4Your offending was opened as follows: (In some parts I will paraphrase the prosecution opening, which was most detailed, but a copy of that opening will be annexed and adopted as part of my sentencing reasons. Notwithstanding this, it is necessary to summarise in some detail the opening and the basis for sentencing you.)
Background
5In September 2012, four Bangladeshi construction workers approached the Australian Department of Immigration and Citizenship in Singapore, enquiring as to when their visa applications would be approved. The Department advised that no such visa applications had been made, triggering an investigation which ultimately led to a search warrant being executed at your residence.
Search Warrant and first Record of Interview
6On 24 May 2013, a search warrant was executed by the Australian Federal Police at your house. A number of computers, mobile phones and thumb drives were seized and later forensically examined.[1] In a record of interview with investigators from the Department of Immigration later that same day, you said the following things- That:
[1] P3-10; volume 1
a)Saiful Islam in Singapore took a lot of money from your cousin’s husband and 33 other applicants to lodge visas for Canada and he did not give the money back. A43-50
b)Saiful Islam approached you and asked you to lodge visa applications and provided you with money. A57
c)You said you sent some of the money to your home country. A59
d)You said that Mr Islam forced you to lodge visa applications for these people but you did not lodge any applications. A62-63
e)He sometimes provided you with the names and details to lodge the applications. A64
f)He took money from people of Bangladeshi background to give to you and asked you to lodge applications, which you did not do. A67-72
g)You initially approached Saiful Islam to get your cousin’s husband’s money back and that’s when he asked "can you do this". A74
h)You said Mr Islam sent the money through Western Union. A78
i)You never provided documentation to show applications had been lodged or created documentation supposedly from the Department of Immigration. A92-93. In this regard, there is a subsequent reference in the record of interview where it is ambiguous as to whether you admitted creating false documents or not. I will return to this aspect a little later on.
j)You also said that you had never worked for the Department of Immigration or registered as a migration agent. A98 - 100
k)You said that you did not know the name Murad Ouasik. A103
l)You said that you told Islam that you couldn’t lodge applications in Australia. A124
m)Mr Islam first sent you money in February 2011 so as to show the applicants he was sending money to Australia. A126, 132.
n)No applicants had contact with you. A136
o)You received $80,000 - $85,000 and sent most of the money to your father-in-law and father in your home country. A139, A140-141.
p)You said that the money was in the bank. A142
q)You said you spoke to one applicant and told him that the visa wasn’t going to happen. A171-173
r)You denied that you ever told the applicants that you were from Immigration or that you had lodged a visa for them. A178-179
Charge 1
7In relation to Charge 1, I was told that five documents were subsequently forensically extracted from a computer seized from your residence when the search warrant was executed. Each of the documents had an Australian Government Department of Immigration and Citizenship header. The documents were as follows:
i.A receipt for payment of $1510 in relation to "Md Nazrul Islam". The receipt was dated 12 February 2011. It purported to relate to an ‘assessment level four’ for a ‘recognised skill (temporary) visa (subclass 476)'. [2] Forensic analysis indicated that this document had last been modified on 14 February 2011.[3]
[2] P72; volume 1
[3] P71; volume 1
ii.An undated letter addressed to a Nurul Asfar, regarding "your pre approval of Recognised Skills Temporary Visa subclass 467 for Queensland Construction based in Singapore. After careful consideration […] the Department has decided to delay further processing of all applications […] Please note that all correspondence strictly limited to your case officer has been allocated. Kind Regards, Andy Dawson, Case Manager, Brisbane Skill Processing Centre"[4]. Forensic analysis indicated that this document had last been modified on 15 August 2011.
[4] P74; volume 1
iii.A letter dated 22 September 2011, addressed to Mr A B M Saifal Islam. The letter stated, "This letter is referring medical examination of Recognised Skills Temporary Visa subclass 467 for Queensland Construction based in Singapore. After a careful consideration of our overall external factor, it is requested to Zarin Consulting to finalise medical test for all applicants who are waiting in Singapore to further process their application. This medical arrangement needs to be done in the following venue located in Singapore […] The list of medical tests and applicants has been attached to the third page of this document. Kind Regards Andy Dawson Case Manager, Brisbane Skill Processing Centre"[5]. Attached to that letter was a medical check-up list for a number of medical tests and also a list of 19 names, passport numbers and dates of birth. This document had last been modified by user "Faisal" on 22 September 2011.[6]
[5] P47; volume 1
[6] P46; volume 1
iv.A receipt for payment of $1510 in relation to a person by the name of Shaheen. It purported to relate to an "assessment level four" for a "recognised skill (temporary) visa (subclass 476)".[7] This document had last been modified on 22 July 2012. [8]
[7] P79; volume 1
[8] P78; volume 1
v.A receipt for $1510 dated 14 June 2012, in relation to an Absar Hossain. It purported to relate to an "assessment level four" for a "recognised skill (temporary) visa (subclass 476)".[9] This document had last been modified on 22 July 2012.[10]
[9] P77; volume 1
[10] P76; volume 1
Second Record of Interview
8Armed with the documents which I have just referred, investigators conducted a second record of interview with you on 18 July 2013, during which you said the following things- That:
a)Saiful Islam asked you to make some documents that looked like they were from Immigration. A57
b)Islam asked you to create the Immigration receipt in the name of Shaheen for $1510. A75
c)You said that you created the document by copying and pasting from images on the immigration website. A82
d)You found a receipt template on Google. A88
e)The details were provided by Saiful Islam. A91-92
f)The document was created on 11 July 2012 and you then emailed it to him. A96, A99.
g)The intention was for Saiful Islam to provide it to one of his clients so that they would think they had paid it to the Department of Immigration. A100-101
h)You said that you knew the document would be used to falsely represent that a visa application had been lodged. A102
i)The same situation applied for receipts for Absar Hossein and MD Nazrul Islam. You created these on 22 July 2012 and in February 2011 respectively. They were manufactured by you for the same purposes and sent to Mr Islam. A105-123
j)In relation to the letter from Andy Dawson of Brisbane Immigration addressed to ABM Saiful Islam requesting medical tests, you said you created this in the same way as the others. A133-134
k)The Singapore medical address and name was given to you by Saiful Islam. A136-137
l)You then sent the document to him. A145
m)You knew it would be given to a visa applicant to make them think their application was progressing. A150
n)This was created between August and October 2011. A153
o)In relation to the letter addressed to Nurul Asfar on the immigration government logo, you said that Islam told you what to write on this. A158
p)You said that you produced it so it could be given to the visa applicants and that it was created in August 2011. A162, 163
q)You admitted setting up a fake email account in about February 2011 in the name of Murad Ouasik, saying that Islam told you to do this. A170-176, 203.
r)You communicated with Mr Islam using this account. A178
s)Saiful Islam asked you to ring some applicants in Bangladesh. A336
t)You said that you called them and told them that there was no guarantee that their visa would be approved. A338, A339
u)You told them that you were an immigration officer, that your name was Murad Ouasik and that you were calling from the Department of Immigration in Australia. A341
v)You said it was your intention to make them believe you were calling from Immigration. A356
w)You told them what was happening with their visa. A358
x)You said the purpose was to stop them from hassling Saiful Islam. A361
y)You said that you made some of the emails you sent to Islam look like they were coming from Immigration and that Islam had asked you to do this. A364
z)You changed the header information to immi.gov.au. A370
aa)In relation to the money, Mr Islam would text you, you said, the transaction number and you would go to Western Union. A393, 394
bb)You would then send it overseas to your father and father-in-law via Western Union. A398, 403.
cc)You said Mr Islam emailed you a script to read to the applicants. A484
Third Record of Interview
9In relation to the third record of interview, you participated in this with investigators from the Department of Immigration on 12 August 2013, during which, you stated the following:
a)Mr Islam asked you to call the applicants but you said you did not call all of them. You said you had forgotten who you had called. A155, 156, 157.
b)You said that you deleted the emails you sent to Mr Islam every time as you did not want others to see these. A240, 253.
c)You said you changed the emails you sent to Mr Islam to make it look as though they were from the Department of Immigration. You changed the email address to [email protected]. A260
d)You said Mr Islam showed these emails to his clients who were giving him money. A264
e)The first email Mr Islam sent you was on 25 February 2011 regarding candidate details. A298
f)He sent this to you so you could make a receipt. A302
g)He said you made a receipt and sent this to him. A303
h)Every email Mr Islam sent to you containing details you would email him an immigration receipt that you created. A309
i)In around April 2011, Mr Islam said that he needed to give the applicants a letter. A322
j)You said that sometimes Mr Islam would send you a résumé which was just to give you the details to put on a receipt. A327
k)You said Mr Islam was also hoping you might be able to lodge a visa. A333
l)You told him that you could not do this. A334
m)After sending the receipt he would go to a different stage and say "send me the approval letter now". A388
n)You said you only created documents for construction workers. A397
o)One day in the afternoon - you thought it was on 27 July - you called around ten people using the script that Mr Islam had given you. A558
p)You said you were from Australian immigration. A567
q)Mr Islam emailed or texted the phone numbers. A568
r)You said that Mr Islam told you that he actually arranged medical appointments for people. A572
s)He got more money from the applicants for the medicals. A573
t)You said you did not do anything for the résumé of Ankur and did not provide a receipt. A600, 602
u)You created different approval letters for each person. A616
v)You said that last night you deleted some approval letters which you had sent. A665
w)You deleted some of the emails you sent, but you did not know why you did this. A666, 671
x)You said every time you sent an email, you would delete it. A693
y)In December 2011, Mr Islam asked you to call some applicants pretending they were successful applicants. A701
z)You called them. You said that you remembered one name was Showkal Islam. A702
aa)You said you told them it might work but there was no guarantee. A707
bb)You said you called them as a client of Mr Islam that he had already seen in Australia. A710
Emails extracted from your computer
10During the third interview on 12 August 2013 you provided the password to access the email account [email protected] from the desktop computer seized from your house (A206).
11A total of 99 emails sent from Saiful Islam (Islam) to you using this email account were downloaded, including the following emails: [11]
[11] P009 & 341; volume 2
a)A series of emails between 25 February 2011 and 15 March 2011 from Mr Islam attaching the résumés and the passport bio data pages of 17 Bangladeshi construction workers based in Singapore; the emails usually simply said "please refer to attachments of the candidate".[12]
[12] P343-441; volume 2
b)An email on 15 March 2011 at 9.54 am from Mr Islam saying "please find hereunder the details of my wife which might be required for her migration application […] Please let me know if you need something else pertaining to this. Meantime I will send the money soonest". The details of Nazneen Sutanta, Mr Islam’s wife, followed[13]. A further email on the same day at 11.01 am said "my wife has sent one remittance for $757.53 this morning […] please note that according to our last conversation you wanted to do at the rate of AUD 400 per case once 16 are done […] however I was thinking if you could start 400 per case from now onwards […] Pls help us".[14]
[13] P430; volume 2
[14] P431; volume 2
c)On 16 March 2011, Mr Islam sent an email to you which stated "as per our records, you have probably submitted applications for Jahangir, Shakawt and Nazimuddin for which we have yet to receive the receipts. In fact the, the applicants are relying on our verbal assurance and confirmation, and as such they also look towards the receipts […] If you agree to accept 400 per application now then we will be able to send our next batch with required money within two to three days […] Pertaining to my wife’s matter, I am really trying to manage the fund but on the other hand do you really mean that Friday is the last day to avail it? Has the employer already issued sponsor letter?" [15]
[15] P442; volume 2
d)Between 17 March 2011 and 28 March 2011 in a series of emails, Mr Islam sent you 17 résumés of Bangladeshi construction workers based in Singapore. [16]
[16] P443-494; volume 2
e)On 12 April 2011, Mr Islam sent you an email regarding the skills and responsibilities usually expected of a Production Manager in Singapore. [17]
[17] P495; volume 2
f)On 13 April 2011, Mr Islam sent you an email saying "I understand you have approved another eight applications today. Once you send these eight, after this, please let us know in advance whenever you approve and send any batch. Because I have to do certain things once I receive the approvals like to print and call all the guys and talk to them, make them understand the things and request them for payment." [18]
[18] P498; volume 2
g)On 14 April 2011, Mr Islam sent you an email saying "I need to know one thing very clearly and frankly, which is about the flight schedule or time. What I understood from you when I talked to you over the phone last time is that by 15 August everybody will be flying off. But according to the second batch approval that you sent today, their medical test will be after 5 August […] Basically I have been encountering problem for the long gap in between the approval and the medical test and now if I tell them that they will have to fly after August, than I need to fly out from Singapore before they fly to Queensland." [19]
[19] P500; volume 2
h)Between 14 April 2011 and 28 April 2011, in a series of emails Mr Islam sent you nine résumés of Bangladeshi construction workers based in Singapore. [20]
[20] P501-538; volume 2
i)On 15 April 2011, Mr Islam sent you an email attaching the names, passport numbers and telephone numbers of 56 "candidates".[21]
[21] P507-509; volume 2
j)On 7 June 2011, he sent you two emails containing the résumés of two registered nurses based in Singapore. [22]
[22] P547-556; volume 2
k)Between 16 June 2011 and 14 July 2011, in a series of emails Mr Islam sent you 11 résumés of Bangladeshi construction workers based in Singapore. [23]
[23] P557-582; volume 2
l)On 19 July 2011, he sent you an email containing an attachment headed "Medical Test and Visa (1st batch, 28 July 2011 onwards)" containing a list of 17 names, passport numbers, contact numbers and remarks relating to these individuals. The details of these were set out in the prosecution opening and I will not repeat them.
m)On 20 July 2011, Mr Islam sent you an email saying "Dear Murad Bhai, please be informed the following which is probable conversation sample: This is [...] from Australian Immigration department, am I talking to [...]? This is pertaining to your Australian Work Permit and there has been a little change of place and date of the medical test and visa label collection as Singapore immigration department has not agreed to issue Singapore visa to most of you […] there is nothing to be worried about as your approval is valid and we will arrange for all of you to do the medical check-up in Dhaka and collect your Australian visa label from Australian High Commission in Dhaka. We will receive a letter soon which will tell you about the details of your medical and visa label collections from Dhaka. Murad Bhai, please look into these points and we will talk and finalise the same. Thanks and regards, Saiful Islam." [24]
[24] P202; volume 2. This is the script you were sent by Islam to be used by you when contacting the "applicants".
n)On 15 August 2011, Mr Islam sent you an email stating "Please find herewith the list of Bangladesh based applicants in the attached file. We will send the details of the Dhaka medical centre by today". The attached document was headed ‘’list of Bangladesh based applicants for medical tests" and contained the names and passport numbers of 39 people. [25]
[25] P586-587; volume 2
o)On 17 August 2011, Mr Islam forwarded to you an email sent from The United Hospital in Dhaka, Bangladesh to Mr Islam concerning an offer for a group medical check-up package at the United Hospital in Dhaka for the total amount of 3000 Taka[26]. Mr Islam had sent an email to the hospital on 16 August 2011 saying "we are a Singapore registered company engaged in migration and foreign placement […] Reports required for cest" - which I understand was meant to be "chest" - "x ray, blood (HIV), urine and eye, doctors normal opinion required for height, weight, hearing, heartbeat, blood pressure and mouth. Please let us know your best price so that I can send the gentlemen to you within the next three or four days".[27]
[26] Bangladeshi currency
[27] P589-592; volume 2
Charge 2
12In relation to Charge 2 on the indictment, I was told that Call Charge Records (CCRs) for your mobile phone number showed that a total of seven phone calls were made on 22 and 23 July 2011[28] to phone numbers listed on an email sent to you from Mr Islam on 19 July 2011 (see paragraph 10.l above). The phone records show that these phone calls were between about two minutes and eight minutes in length. You admitted in your second and third interviews with investigators that you called these people, using the script provided to you by Mr Islam. You told them you were calling from the Department of Immigration and advised them what was happening with their visa application. You admitted that you did this to stop these people "hassling" Mr Islam.
[28] CCRs on p339-339.1; volume 1
International Funds Transfers
13International funds transfer records show that between 20 February 2011 and 17 October 2011, you received a total of AUD$87,167.74 in cash from Nazneen Sultana and ABM Saiful Islam by way of Western Union and MoneyGram transfers from Singapore. Between 27 February 2011 and 8 December 2011, Western Union records show that you transferred a total of AUD$51,974 in cash to several recipients in Bangladesh. [29]
[29] P611-631; volume 2
14You have agreed to a pecuniary penalty order for the entire sum you received, and part payment of that sum has been made by way of bank cheque, namely in the sum of $42,000. This happened, as I understand, at the original plea hearing. Further, you have indicated that an amount of $8000 will be forthcoming today. You have indicated that you are taking steps for the balance to be retrieved from Bangladesh, however, there have been some complications in this regard and some delay. I was told this morning by the learned prosecution that upon making the pecuniary penalty order, the balance of the funds can be transferred to the Commonwealth effectively in a more timely fashion.
Chronology of proceedings
15In terms of the chronology of proceedings, charges by way of summons were issued against you on 21 May 2014.
16At a committal mention at the Melbourne Magistrates’ Court on 14 August 2014 you entered pleas of guilty to five charges of making a false Commonwealth document and seven charges of falsely representing to be a Commonwealth public official. These charges have been effectively rolled into Charges 1 and 2 respectively on the indictment.
17You have spent no time in custody.
18Mr Alam, your offending is most serious. You have deprived those who could least afford it of a significant sum of hard earned money. You must have been aware that the victims were very hopeful of obtaining visas to live in Australia, and you exploited the trust that was placed in you by them. I regard your offending as despicable. I was told that you always intended to give the money back to these individuals, which is why you had the money held in trust by your relatives. I reject this assertion as fanciful. When one considers the time over which the deception occurred and the elaborate steps you took to assist in this devious scheme, I do not accept that you were afraid of your co-offender and were waiting for a time to make amends. It may be that you had debts and had other worthy causes where this money could have been spent, but I am not satisfied on the balance of probabilities that you intended to return the money to its rightful owners. I was told that you went to Bangladesh in November 2012 and refunded four victims of this scam - that is, refunded them the sum of $1500 each. In the absence of evidence, I am not prepared to accept, on the balance of probabilities, that this in fact occurred.
19I must sentence you to a penalty that is appropriate in severity in all of the circumstances, bearing in mind that a sentence of imprisonment is only to be imposed if I am satisfied that no other sentence is appropriate.
20As to whether it was you or your co-offender who initiated this fraudulent scheme, I am unable to make any finding; but I reject that you became involved after you tried to recoup your brother-in-law’s money. Your explanation in this regard just makes no sense. Nor am I satisfied that once you had provided false documentation on the first occasion for Mr Islam, he effectively blackmailed you into continuing on. On the basis of the material before me, I am satisfied that you were an active and willing participant in this fraudulent enterprise. Apart from anything else, as the learned prosecutor pointed out at plea hearing, Mr Islam’s communication with you could not be characterised as bullying or demanding; rather it was courteous and consultative in nature and, on occasion, plaintive in its nature.
21In assessing the seriousness of your offending I have factored in the dates of the alleged offending itself and the fact that a good deal of the opening was concerned with the context in which the offending occurred. You are not to be sentenced for anything other than the offending itself which gives rise to the charges, although it could not be said that the offences were isolated instances and, therefore, I sentence you in the context in which the matters were opened, in that sense. I have also taken into account the total sum said to have been taken and that this is not the greatest sum that one might see in respect of fraudulent activity. However, it is also important to take into account the fact that the money was taken from those who could ill afford to part with it. I do not have victim impact statements, but it is not hard to imagine that the impact to these construction workers both financially and emotionally would have been significant.
22In your favour, you pleaded guilty at an early stage which entitles you to a significant discount you would otherwise receive. In doing so, you have saved the witnesses the time and trauma of cross examination and you have saved the community the time and expense of contested proceedings. I allow for some contrition in circumstances where your plea was an early one, where you have taken steps to refund all of the money taken and have expressed remorse to Mr Coffey, psychologist. You have also been penitent in your religious observance. As against these matters, I have also factored in that your fraudulent activity was of an elaborate nature, and of an enduring nature, and that it took three records of interview for you to be fairly frank with investigators. In this regard, as an aspect of the record of interview, the first record of interview is ambiguous as to whether you were more forthcoming at that stage or not. In that regard, I make no finding against you and give you the benefit of that ambiguity. In the end, as I have said, I allow for some contrition. As I have rejected some aspects of your plea, I have some concerns as to your level of insight and capacity to fully come to terms with your wrongdoing.
23You have no prior convictions which also counts in your favour.
24I take into account your circumstances and background. You arrived in Australia from Bangladesh in 2007 on a student visa. You have now applied for permanent residency here as a skilled migrant, having been sponsored to do so by the State of New South Wales. The sentence that I impose will be factored in by the Department of Immigration and Border Protection in the determination of your application.
25You are presently working about 50 hours a week in two unskilled positions.
26You have considerable debts which total $45,000. These arise from your wife’s pregnancy and corrective surgery following your son’s birth. Such expenses were not covered by Medicare as you and your wife were both on student visas at the time. You also expended a good deal in respect of repeatedly taking the English test required for permanent residency applicants, and on your education. In order to achieve the pass score you took the test 33 times at about $330 per test.
27You grew up in Bangladesh. You were an above average student and you come from an emotionally and materially stable family. You commenced studying law in Dhaka, which was how you came to meet your wife, but you decided to come to Australia in pursuit of greater stability in view of the situation in Bangladesh at that time. You undertook a diploma in accountancy at Holmesglen College in Melbourne, then completed a Bachelor in Accounting in February 2011. You returned to Bangladesh in early 2008 for a month and married. Your wife stayed in Bangladesh in February 2010, when she accompanied you back. Your wife stayed in Bangladesh initially and ultimately she accompanied you back to Australia. This seems to mean that you were able to afford to travel to Bangladesh twice on return tickets.
28You have a solid work history in terms of unskilled work since arriving in Australia, working as a cashier in supermarkets or a petrol station.
29I was told that your mother is unfortunately in poor health, having suffered two strokes, and that your family’s fishing business in Bangladesh was ruined in 2009 such that your father’s modest income as a property lawyer is all that supports the family. According to what you told Mr Coffey you have sent at least $700 per month to help with this situation, but this was apparently not from your fraudulent activity.
30Your son, who is now two, was born with a deformity in his hands; he is due to undergo further corrective surgery within the next twelve months.
31I have taken into account that any time in gaol will be harder for you because of your concern for your son and your family at home, as well as the financial stability of your family here if you are no longer able to financially support them for any period.
32I was asked to factor in that in the event that you were to be sentenced to a particular period in gaol, then you faced the very real prospect of deportation which would be a further hardship for you. While I take into account that you are anxious about this prospect, such a prospect in your case is speculative at this stage, and so I do not take this into account to any greater degree than your anxiety about this.
33Since your offending I was told that you and your family in Bangladesh have been threatened by Mr Islam and those with whom he has connections. I was told that Mr Islam has connections with people in high places. I must say that as I have not accepted some other matters put forward in your account, I have some difficulty in accepting this also. However, on balance I am prepared to do so and take this into account as part of the hardship you are enduring. It will be harder to bear this concern in serving a prison sentence.
34However, you suffer no impairment of mental function such as would reduce your moral culpability, which I regard as high.
35I accept that apart from your offending, you are of otherwise good character.
36Although your offending behaviour was of an enduring and rather elaborate nature, your early plea of guilty and degree of contrition, as well as your lack of prior convictions, your family support and strong work ethic make it rather unlikely that you will re-offend. I need place only minimal weight on specific deterrence. However, I place strong weight on general deterrence and denounce your conduct.
37I have allowed that any period in gaol will weigh heavily upon you and that such a sentence would be your first time in prison.
38I have also considered the sentence imposed in the case of R v Wu dated 22 April 2014, a decision of the District Court of New South Wales, and the submissions made by your Counsel and the Crown as to similarities and differences between your situation and the offender in that particular case. There are some qualitative differences which place you in a better light in some respects and a worse light in others compared with that offender. I have had regard to these differences and also to the fact that whilst that decision provides some assistance in respect of sentencing practice, it is but one case and not a template for current sentencing practice. But it has given me a degree of guidance.
39I am most mindful that gaol is not to be the penalty imposed in any case unless nothing else will do. I am afraid that in the circumstances of your case, a gaol term is the only appropriate sentence.
40Would you please stand up Mr Alam.
41You are convicted in relation to each of the offences.
42I make a pecuniary penalty order in the sum of $87,167.74 payable to the Commonwealth. I understand that the Commonwealth has taken a number of steps to return this to the victims, but at this stage have been unable to locate them.
43In relation to Charge 1, you are sentenced to 12 months' imprisonment which will commence today
44In relation to Charge 2, you are sentenced to two years' imprisonment which is also to commence today
45This produces a total effective sentence of two years' imprisonment but I order that you be released after serving ten months' imprisonment upon you giving security by recognisance in the sum of $2000 to comply with the following conditions: 1) that you be of good behaviour for a period of five years; and 2) that you pay the pecuniary penalty order in full by 30 June 2015.
46This means that you will be required to serve ten months immediately, but that after this period you are to be released and will not be required to serve the further fourteen months providing you do not commit any further criminal offence for a period of five years from your date of release and providing you pay the pecuniary penalty order of $87,167 in full by 30 June 2015. In this regard, I note that you have already paid $42,000 and have indicated that $8000 will be available as of today. If you breach any of the conditions of this recognisance order without reasonable excuse, then you face the very real prospect of serving the further fourteen months gaol and of paying the recognisance sum of $2000.
47I have imposed this sentence because of the offences with which you have been charged and to which you have pleaded guilty, and because I have taken the view that in all of the circumstances, a period of imprisonment is warranted but that you ought be released after ten months and serve only that period if you comply with the terms of this order.
48The order that I have made may be discharged or varied upon application by you or an authorised person in accordance with s.20AA of the Crimes Act 1914.
49Pursuant to s.6AAA of the state Sentencing Act, I indicate that, if not for your pleas of guilty, I would have sentenced you to a total effective sentence of four years with a requirement that you serve two years immediately upon entering into a recognisance, giving a security of $3000, but otherwise in the same terms as the recognisance that I have imposed.
50Take a seat for a moment please. Is there anything arising?
51MR FITZMAURICE: Just one matter, Your Honour. In relation to the $8000 that's (indistinct) today, that's obviously in Mr Alam's bank account and if he goes into immediate custody, I'm not sure how arrangements can be made for that to be paid today. It would be paid, I take it, by 30 June. If it's in Mr Alam's bank account today.
52HER HONOUR: Well, I do not know if a withdrawal slip or something can be provided to him, but he knew that I was imposing sentence today, so I just - that is all I can do.
53MR FITZMAURICE: Yes, Your Honour.
54HER HONOUR: It would be in his interest to take whatever steps he can sooner rather than later to make that sum available. He has indicated that that is what he would do, it is something that I factored in on the plea hearing. So he should attend to that as best he can, given he is in custody.
55MR FITZMAURICE: Yes, Your Honour.
56HER HONOUR: The recognisance, I have signed that document. I understand your client has to sign that document also. If you could approach the dock and explain that to him, have him sign. Thank you.
57MR FITZMAURICE: Yes, Your Honour.
58HER HONOUR: Mr Prosecutor, it might be that you can somehow assist in having the monies that were said tyo have been paid. Able to be obtained today? I do not know what the mechanisms might be.
59MR SINNETT: Yes, Your Honour.
60HER HONOUR: But obviously it is in your hands, I suppose, in some respects if you can make the necessary approaches in that regard?
61MR SINNETT: We will do whatever we can, Your Honour. Your Honour, as Your Honour got the - - -
62HER HONOUR: Just one moment. I probably should wait.
63MR SINNETT: Yes, Your Honour.
64HER HONOUR: Yes, thank you. Yes, Mr Prosecutor?
65MR SINNETT: Your Honour, I was just going to ask if Your Honour had the documentation relating to the pecuniary penalty order?
66HER HONOUR: Yes, I have signed that.
67MR SINNETT: Thank you, Your Honour.
68HER HONOUR: That will be provided to you. Is there anything further?
69MR FITZMAURICE: No, Your Honour.
70HER HONOUR: All right. Yes, thank you. You may remove Mr Alam. Thank you. Yes, thank you, we will now adjourn.
IN THE COUNTY COURT NO. CR-14-01446
OF VICTORIA
AT MELBOURNE
THE QUEEN
v
KH Faisal ALAM
PROSECUTION OPENING
Indictment
The offender is charged with one charge of making a false Commonwealth document contrary to ss144.1(5) of the Criminal Code (Charge 1) and one charge of falsely representing to be a Commonwealth public official contrary to ss148.1(3) of the Criminal Code (Charge 2).
Charge 1 carries a maximum penalty of 10 years imprisonment (and/or a pecuniary penalty of $66,000).[30]
[30] See s4B(2) of the Crimes Act 1914
Charge 2 carries a maximum penalty of 5 years imprisonment (and/or a pecuniary penalty of $33,000).[31]
[31] See s4B(2) of the Crimes Act 1914
Background
In September 2012 four Bangladeshi construction workers approached the Australian Department of Immigration and Citizenship in Singapore seeking advice on when their Australian visa applications would be approved. An examination of Departmental records indicated that no such visa applications had been made by these individuals, thus sparking an investigation which ultimately led to a search warrant being executed at the offender’s residence.
Search Warrant and first Record of Interview
On 24 May 2013 a search warrant was executed by the Australian Federal Police at 15 Bowman Street Noble Park, the offender’s residential address.[32] A number of computers, mobile phones and thumb drives were seized and later forensically examined.[33] In a record of interview with investigators from the Department of Immigration later that same day the offender stated the following:[34]
[32] P19; volume 1
[33] P3-10; volume 1
[34] p68; volume 2
a. Saiful Islam in Singapore took a lot of money from my cousin’s husband and 33 other applicants to lodge visas for Canada and he did not give the money back. A43-50
b. Saiful Islam approached me and asked me to lodge visa applications. A57
c. He provided me with money. A58
d. I sent some of the money to my home country. A59
e. He forced me to lodge visa applications for these people. A62
f. I did not lodge any applications. A63
g. He sometimes provided me with the names and details to lodge the applications. A64
h. He took money from people of Bangladeshi background to give to me and asked me to lodge applications, which I didn’t do. A67-72
i. I initially approached Saiful Islam to get my cousin’s husbands money back and that’s when he asked can you do this. A74
j. He sent the money through Western Union. A78
k. I never provided documentation to show applications had been lodged or created documentation supposedly from the Department of Immigration. A92-93.
l. I have never worked for the Department of Immigration. A98
m. I have never been registered as a migration agent. A100
n. I do not know the name Murad Ouasik. A103
o. I told Islam that I can’t lodge applications in Australia. A124
p. He first sent me money in February 2011. A126
q. He sent money to me to show the applicants he was sending money to Australia. A132
r. No applicants had contact with me. A136
s. I received 80 to 85 thousand dollars. A139
t. I sent most of the money to my father in law and father in my home country. A140-141
u. It is just in the bank. A142
v. I spoke to one applicant and told them the visa wasn’t going to happen. A171-173
w. I never told them I was from Immigration or that I had lodged a visa for them. A178-179
Charge 1
The following five documents were subsequently forensically extracted from a computer seized from the offender’s residence during the search warrant:
i.A receipt, containing an Australian Government Department of Immigration and Citizenship header, dated 12 February 2011, in relation to an individual by the name of Md Nazrul Islam. It purported to relate to an ‘assessment level 4’ in relation to an amount received by the Department in the sum of $1510 for a ‘recognised skill (temporary) visa (subclass 476).[35] Forensic analysis indicated that this document had last been modified on 14 February 2011.[36]
[35] P72; volume 1
[36] P71; volume 1
ii.An undated letter, containing an Australian Government Department of Immigration and Citizenship header, addressed to an individual by the name of Nurul Asfar, regarding ‘your pre approval of Recognised Skills Temporary Visa subclass 467 for Queensland Construction based in Singapore. After careful consideration…the Department has decided to delay further processing of all applications…Please note that all correspondence strictly limited to your case officer has been allocated. Kind Regards, Andy Dawson, Case Manager, Brisbane Skill Processing Centre’.[37] Forensic analysis indicated that this document had last been modified on 15 August 2011.
[37] P74; volume 1
iii.A letter, containing an Australian Government Department of Immigration and Citizenship header, dated 22 September 2011, addressed to Mr A B M Saifal Islam. The letter stated ‘This letter is referring medical examination of Recognised Skills Temporary Visa subclass 467 for Queensland Construction based in Singapore. After a careful consideration of our overall external factor, it is requested to Zarin Consulting to finalize medical test for all applicants who are waiting in Singapore to further process their application. This medical arrangement need to be done in the following venue located in Singapore…The list of medical tests and applicants has been attached in the third page of this document. Kind Regards Andy Dawson Case Manager, Brisbane Skill Processing Centre’.[38] Attached to that letter was a medical check up list for a number of medical tests and also a list of 19 names, passport numbers and dates of birth. Forensic analysis indicated that this document had last been modified by user ‘Faisal’ on 22 September 2011.[39]
iv.A receipt, containing an Australian Government Department of Immigration and Citizenship header, dated 13 June 2012, in relation to an individual by the name of Shaheen. It purported to relate to an ‘assessment level 4’ in relation to an amount received by the Department in the sum of $1510 for a ‘recognised skill (temporary) visa (subclass 476)’.[40] Forensic analysis indicated that this document had last been modified on 22 July 2012.[41]
v.A receipt, containing an Australian Government Department of Immigration and Citizenship header, dated 14 June 2012, in relation to an individual by the name of Absar Hossain. It purported to relate to an ‘assessment level 4’ in relation to an amount received by the Department in the sum of $1510 for a ‘recognised skill (temporary) visa (subclass 476)’.[42] Forensic analysis indicated that this document had last been modified on 22 July 2012.[43]
[38] P47; volume 1
[39] P46; volume 1
[40] P79; volume 1
[41] P78; volume 1
[42] P77; volume 1
[43] P76; volume 1
Second Record of Interview
Investigators from the Department of Immigration were in possession of these five extracted documents at the time of the second record of interview with the offender on 18 July 2013, during which the offender stated the following:[44]
[44] P117; volume 2
a. Saiful Islam asked me to make some documents that looked they were from Immigration. A57
b. Islam asked me to create the Immigration receipt in name of Shaheen for $1510. A75
c. I created the document by copy and paste from images from the immigration website. A82
d. I found a receipt template on google. A88
e. The details were provided by Saiful Islam. A91-92
f. The document was created on 11 July 2012. A96
g. I then emailed it to him. A99
h. The intention was for Saiful Islam to provide it to one of his clients so that they would think they had paid it to the Department of Immigration. A100-101
i. I knew the document would be used to falsely represent that a visa application had been lodged. A102
j. The same situation applied for receipts for Absar Hossein and MD Nazrul Islam. I created them on 22 July 2012 and in February 2011 respectively. They were manufactured by me for same purpose and sent to Islam. A105-123
k. In relation to the letter from Andy Dawson of Brisbane immigration addressed to ABM Saiful Islam requesting medical tests, I created this in the same way as the others. A133-134
l. The Singapore medical address and name was given to me by Saiful Islam. A136-137
m. I then sent it to him. A145
n. I knew it would be given to a visa applicant to make them think their application was progressing. A150
o. It was created between August and October 2011. A153
p. In relation to the letter addressed to Nurul Asfar on the immigration government logo, Islam told me what to write on this. A158
q. I produced it so that it could be given to the visa applicants. A162
r. It was created in August 2011. A163
s. I set up the fake email account in the name of Murad Ouasik. Islam told me to do this. A170-176
t. I communicated with Islam using this account. A178
u. I created this in around February 2011. A203
v. Saiful Islam asked me to ring some applicants in Bangladesh. A336
w. I called them. A338
x. I told them there was no guarantee that their visa would be approved. A339
y. I told them I was an immigration officer. A341
z. I told them my name was Murad Ouasik and said I was calling from the Department of Immigration in Australia. A350-351
aa. It was my intention to make them believe I was calling from Immigration. A356
bb. I told them what was happening with their visa. A358
cc. The purpose was to stop them hassling Saiful Islam. A361
dd. Some of the emails I sent to Islam, I made it look like those emails were coming from Immigration. A364
ee. I changed the header information to immi.gov.au. A370
ff. Islam asked me to do this. A372
gg. In relation to the money, Islam would text me the transaction number. A393
hh. I would go to Western Union. A394
ii. I would then send it overseas via Western Union. A398
jj. I sent it to my father and father in law. A403
kk. Islam emailed me a script to read to the applicants. A484
Third Record of Interview
The offender participated in a third record of interview with investigators from the Department of Immigration on 12 August 2013 during which the offender stated the following:[45]
[45] P203; volume 2
a. Islam asked me to call the applicants. A155
b. I did not call all of them. A156
c. I definitely called some of them but I forget who. A157
d. I deleted the emails I sent to Islam every time. A240
e. I didn’t want other people to see them. A253
f. I changed the emails I sent to Islam to make it look as though they were from the Department of Immigration; I changed it to [email protected]. A260
g. Islam showed these emails to his clients who were giving him money. A264
h. The first email Islam sent me was on 25 February 2011 regarding candidate details. A298
i. He sent this to me for me to make a receipt. A302
j. I made a receipt and sent it to him. A303
k. Every email Islam sent to me containing details I would email him an immigration receipt that I created. A309
l. In around April 2011 Islam said he needed to give the applicants a letter. A322
m. Sometimes he would send me a résumé which was just to give me the details to put on a receipt. A327
n. Islam was also hoping I might be able to lodge a visa. A333
o. I had told him I couldn’t do this. A334
p. For every single person Islam sent me I sent a receipt back. A386
q. After sending the receipt he would go to a different stage and say send me the approval letter now. A388
r. I only created documents for construction workers. A397
s. I called a few of the applicants. A549
t. One day in the afternoon I called around 10 people. A558
u. That was with the script. A559
v. I think it was the 27th of July. A560
w. Within one week of the 20th I called 8 to 10 people. A563
x. I used the script. A564
y. I said I was from Australian immigration. A567
z. The phone numbers he emailed me or texted me. A568
aa. He told me that he actually arranged medical appointments for people. A572
bb. He got more money from the applicants for the medicals. A573
cc. I didn’t do anything for the résumé of Ankur. A600
dd. I did not provide a receipt. A602
ee. I created different approval letters for each person. A616
ff. Last night I deleted some approval letters I sent. A665
gg. I deleted some of the emails I sent. A666
hh. I don’t know why, I just delete. A671
ii. Every time I sent an email I would delete it. A693
jj. In December 2011 Islam asked me to call some applicants pretending they were successful applicants. A701
kk. I called them. I remember one name was Showkal Islam. A702
ll. I told them it might work but there was no guarantee. A707
mm. I called them as a client of Islam that he had already seen in Australia. A710
Emails extracted from the Offender’s computer
During the third interview on 12 August 2013 the offender provided the password to access the email account [email protected] from the desktop computer seized from the offender’s residence (A206).[46]
[46] P236; volume 2
10.A total of 99 emails sent from Saiful Islam (Islam) to the offender using this email account were downloaded, including the following emails:[47]
[47] P009 & 341; volume 2
a. A series of emails between 25 February 2011 and 15 March 2011 from Islam attaching the résumés and the passport bio data pages of 17 Bangladeshi construction workers based in Singapore; the emails usually simply said ‘please refer to attachments of the candidate’.[48]
[48] P343-441; volume 2
b. An email on 15 March 2011 at 9.54am from Islam saying ‘please find hereunder the details of my wife which might be required for her migration application…Please let me know if you need something else pertaining to this. Meantime I will send the money soonest’. The details of Nazneen Sutanta, Islam’s wife, followed below[49]. A further email on the same day at 11.01am saying ‘my wife has sent one remittance for $757.53 this morning…please note that according to our last conversation you wanted to do at the rate of AUD 400 per case once 16 are done…however I was thinking if you could start 400 per case from now onwards…Pls help us’.[50]
[49] P430; volume 2
[50] P431; volume 2
c. On 16 March 2011 Islam sent an email to the offender which stated ‘as per our records, you have probably submitted applications for Jahangir, Shakawt and Nazimuddin for which we have yet to receive the receipts. In fact the, the applicants are relying on our verbal assurance and confirmation and as such they also look towards the receipts….If you agree to accept 400 per application now then we will be able to send our next batch with required money within 2 to 3 days…Pertaining to my wife’s matter, I am really trying to manage the fund but on the other hand do you really mean that Friday is the last day to avail it? Has the employer already issued sponsor letter?’[51]
[51] P442; volume 2
d. Between 17 March 2011 and 28 March 2011 in a series of emails Islam sent the offender 17 résumés of Bangladeshi construction workers based in Singapore.[52]
[52] P443-494; volume 2
e. On 12 April 2011 Islam sent the offender an email regarding the skills and responsibilities usually expected of a Production Manager in Singapore.[53]
[53] P495; volume 2
f. On 13 April 2011 Islam sent the offender an email saying ‘I understand you have approved another 8 applications today. Once you send these 8, after this, please let us know in advance whenever you approve and send any batch. Because I have to do certain things once I receive the approvals like to print and call all the guys and talk to them, make them understand the things and request them for payment.’[54]
[54] P498; volume 2
g. On 14 April 2011 Islam sent the offender an email saying ‘I need to know one thing very clearly and frankly, which is about the flight schedule or time. What I understood from you when I talked to you over the phone last time is that by 15th August everybody will be flying off. But according to the second batch approval that you sent today, their medical test will be after 5th of August…Basically I have been encountering problem for the long gap in between the approval and the medical test and now if I tell them that they will have to fly after august, than I need to fly out from Singapore before they fly to Queensland.’[55]
[55] P500; volume 2
h. Between 14 April 2011 and 28 April 2011 in a series of emails Islam sent the offender 9 résumés of Bangladeshi construction workers based in Singapore.[56]
[56] P501-538; volume 2
i. On 15 April 2011 Islam sent the offender an email attaching the names, passport number and telephone numbers of 56 ‘candidates’.[57]
[57] P507-509; volume 2
j. On 7 June 2011 Islam sent the offender two emails containing the résumés of two registered nurses based in Singapore.[58]
[58] P547-556; volume 2
k. Between 16 June 2011 and 14 July 2011 in a series of emails Islam sent the offender 11 résumés of Bangladeshi construction workers based in Singapore.[59]
[59] P557-582; volume 2
l. On 19 July 2011 Islam sent the offender an email containing an attachment headed ‘Medical Test & Visa (1st batch, 28th July 2011 onwards)’ containing a list of names, passport numbers, contact numbers and remarks (saying either in B’desh or S’pore) as follows:
oMonir Khan – 01914746114
oShahid Milon – 01935291844
oMintu Miah – 01726597313
oFurhad Islam – 002827262524
oMd Billah – 01742585729
oNazim – 65 91983882
oMasud Parvez – 01735269362
oNurul Asfar – 01815766150; 01813781594
oSamsul Alam – 019478938878
oNasir Ali – 01915512118; 01943067559
oSaiful Islam – 01928443165; 01941304339
oMd Shahiduzzama – 01731433828; 01840387602
oMamun – 01936763743
oAbdul Robmhzi – 01743907031
oJamal Hossain – 65 82628012
oPangkaj Kumar Sut – 01716796197
oDayal Chandra – 01926250781; 01828474624[60]
[60] P200-201; volume 2
m. On 20 July 2011 Islam sent the offender an email saying ‘Dear Murad Bhai, please be informed the following which is probable conversation sample: This is……..from Australian Immigration department, am I talking to ………? This is pertaining to your Australian Work Permit and there has been a little change of place and date of the medical test and visa lebel collection as Singapore immigration department has not agreed to issue Singapore visa to most of you…there is nothing to be worried about as your approval is valid and we will arrange for all of you to do the medical checkup in Dhaka and collect your Australian visa lebel from Australain High Commission in Dhaka. We will receive a letter soon which will tell you about the details of your medical and visa lebel collections from Dhaka. Murad Bhai, please look into these points and we will talk and finalise the same. Thanks and regards Saiful Islam.’[61]
[61] P202; volume 2. This is the script the offender was sent by Islam to be used by the offender when contacting the ‘applicants’.
n. On 15 August 2011 Islam sent the offender an email stating ‘Please find herewith the list of Bangladesh based applicants in the attached file. We will send the details of the Dhaka medical centre by today’. The attached document was headed ‘’list of Bangladesh based applicants for medical tests’ and contained the names and passport numbers of 39 people.[62]
[62] P586-587; volume 2
o. On 17 August 2011 Islam forwarded to the offender an email sent from The United Hospital in Dhaka Bangladesh to Islam concerning an offer for a group medical checkup package at the United Hospital in Dhaka for the total amount of 3000 Taka.[63] Islam had sent an email to the hospital on 16 August 2011 saying ‘we are a Singapore registered company engaged in migration and foreign placement…Reports required for cest x ray, blood (HIV), urine and eye, doctors normal opinion required for height, weight, hearing, heart beat, blood pressure and mouth. Please let us know your best price so that I can send the gentlemen to you within the next 3 or 4 days’.[64]
[63] Bangladeshi currency
[64] P589-592; volume 2
Charge 2
11.Call Charge Records (CCRs) for the offender’s mobile phone number show that a total of 7 phone calls were made on 22 and 23 July 2011[65] to phone numbers listed on an email sent to the offender from Islam on 19 July 2011 (see paragraph 10.l above). The CCRs show that these phone calls were between about 2 minutes and 8 minutes in length. The offender admitted in his second and third interviews that he called these persons, using the script provided to him by Islam (see paragraph 10.m above) and told them he was calling from the Department of Immigration and advised them what was happening with their visa application. He admits he did this so that the people he called would stop ‘hassling’ Islam.
[65] CCRs on p339-339.1; volume 1
International Funds Transfers
12.International funds transfer records show that between 20 February 2011 and 17 October 2011 the offender received a total of AUD$87,167.74 in cash from Nazneen Sultana and ABM Saiful Islam by way of Western Union and MoneyGram transfers from Singapore. Between 27 February 2011 and 8 December 2011 Western Union records show that the offender transferred a total of AUD$51,974 in cash to several recipients in Bangladesh.[66]
[66] P611-631; volume 2
13.A pecuniary penalty order is sought, by consent, in relation to the amount of $51,000, pursuant to section 116(1) of the Proceeds of Crime Act 2002 (Cth).
Chronology of proceedings
14.Charges, by way of summons, were issued against the offender on 21 May 2014.
15.At a committal mention at the Melbourne Magistrates’ Court on 14 August 2014 the offender entered pleas of guilty to 5 charges of making a false Commonwealth document contrary to ss144.1(5) of the Criminal Code (rolled up into Charge 1 on the Indictment) and 7 charges of falsely representing to be a Commonwealth public official contrary to ss148.1(3) of the Criminal Code (rolled up into Charge 2 on the Indictment).
16.The offender has spent no time in custody.
0
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