Director of Public Prosecutions v Ammar

[2023] VCC 693

IN THE COUNTY COURT OF VICTORIA

Revised

Not Restricted

Suitable for Publication

AT MELBOURNE

CRIMINAL JURISDICTION

CR 22-00400

DIRECTOR OF PUBLIC PROSECUTIONS

v

HASSAN AMMAR

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JUDGE:	HIS HONOUR JUDGE KELLY
WHERE HELD:	Melbourne
DATE OF HEARING:	28 February 2023
DATE OF SENTENCE:	15 March 2023
CASE MAY BE CITED AS:	DPP v Ammar
MEDIUM NEUTRAL CITATION:	[2023] VCC 693

REASONS FOR SENTENCE

‑‑‑

Subject:  CRIMINAL LAW

Catchwords:  Obtaining Financial Advantage by Deception – attempt – rolled up charge – false deposits – reasonable prospects of rehabilitation – quasi-hardship – delay.

Legislation Cited:                   Crimes Act 1958 – Sentencing Act 1991.

Cases Cited:  Hogan v Hinch (2011) 243 CLR 506.

Sentence:  2 Year Community Correction Order.

‑‑‑

APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Ms M. Zammit	Solicitor for the Office of Public Prosecutions
For the Offender	Mr M.S. Habib	Leanne Warren & Associates

HIS HONOUR: 

1Hassan Ammar, you have pleaded guilty to one charge of obtaining a financial advantage by deception and one rolled up charge of attempting to obtain a financial advantage by deception.  The charge of obtaining financial advantage by deception carries a maximum penalty of 10 years' imprisonment.  The charge of attempting to obtain a financial advantage by deception carries a maximum penalty of five years' imprisonment. 

Summary of offending

2The summary of prosecution opening was read aloud by the prosecutor at the plea and is an unchallenged factual basis upon which you are to be sentenced.

3Your offending can be summarised in short compass as follows.  At the time of offending you were the sole director of three companies;

(a) NNN Nominees Pty Ltd registered on 1 February 2017;

(b) H&R Nominees Pty Ltd registered on 2 March 2017; and

(c) Nooran Pty Ltd registered on 9 August 2013. 

4On 3 March 2020 you opened three bank accounts with the National Australia Bank with the following names.

(a) NNN Nominees Pty Ltd;

(b) H&R Nominees Pty Ltd; and

(c) Hassan Ammar.

5Between 6 and 27 March 2020 you made a number of deposits of cheques to a number of National Australia Bank branches. 

6On 6 March 2020 you attended the NAB branch at 340 Craigieburn Road in Craigieburn and deposited an Australia and New Zealand Bank, ANZ, cheque for $225,000 which appeared to be issued by Nooran Pty Ltd and the payee of the cheque being H&R Nominees Pty Ltd. 

7On 10 March 2020, you attended the Broadmeadows NAB branch and deposited an ANZ cheque for $225,000 which appeared to have been issued by Nooran Pty Ltd and the payee was H&R Nominees Pty Ltd.  Upon request you provided a Victorian driver's licence as identification. 

8On 23 March 2020 you attended the Broadmeadows NAB branch and deposited an ANZ cheque for $225,000 purportedly issued by Nooran Pty Ltd and payable to H&R Nominees Pty Ltd.  You again provided the Victorian driver's licence for identification purposes. 

9Finally, on 27 March 2020 you attended the Broadmeadows NAB branch and deposited a cheque for $225,000 which purported to have been issued by NNN Nominees Pty Ltd and payable to H&R Nominees Pty Ltd. You again provided a driver's licence as identification.

10At the time each deposit was made, there were insufficient funds in the accounts from which the money was to be drawn, meaning, in practice, each cheque was valueless. 

11On 31 March 2020 you logged onto your NAB internet banking account using an unique client identification number.  Despite there being no funds available in the account, you were able to transfer $225,000 from the NNN Nominees Pty Ltd account to the H&R Nominees Pty Ltd account.  This was successfully completed due to issues affecting the account during the clearing process.  Following this transfer, a number of other transfers occurred between the H&R Nominees account and your ANZ personal bank account, totalling $110,000.  On the same day, you attended the Broadmeadows NAB branch and withdrew $10,000 in cash from the H&R Nominees account. 

12On 2 April 2020 a restriction was placed on the H&R Nominees Pty Ltd account restricting any further withdrawals, at which point the account had a balance of $105,020 being the balance of the obtained funds.

13An investigation was launched by NAB which led to the discovery of the four valueless cheques as well as 16 attempted transfers of uncleared funds from a number of business accounts linked to you or your personal ANZ account.  This information was passed onto Victoria Police who began an investigation into your conduct. 

14On 22 October 2020, Victoria Police executed a search warrant of your home and car, locating various cheque books issued by the ANZ, Westpac and Commonwealth banks.  You were arrested and taken to the Broadmeadows police station where you were interviewed in relation to your actions. 

15During the interview you made a number of admissions relating to depositing the valueless cheques.  You also indicated that you deposited the cheques because you were 'under a lot of pressure' and in order to show investors in your companies that you had money. 

Nature and Gravity of Offending

16As to the nature and gravity of the offending, you presented valueless cheques in significant sums.  You did that in the expectation that your account would be temporarily credited with the value of these cheques until the bank dishonoured them.

17This process usually took a few days.  In that time you hoped to nullify anxious investors of your property development business by showing them your temporarily inflated credit balance, and in this way you hoped to assure them that you were a man of substantial means who had the wherewithal to fund ambitious projects.  One cheque was honoured in error and you immediately drew down on the balance it created.

18I was not told what you spent this money on, but you spent $108,808 of the banks' money, knowing that money did not belong to you and knowing you had no present capacity to refund the bank.  That sum remains outstanding.  The gravity of your offending is therefore quite high because this offending involved the taking of several steps including attending at the Craigieburn NAB branch on 6 March 2020 and presenting a valueless cheque there.  Attending the Broadmeadows branch 13 days later, presenting another valueless cheque there.  And four days later, attending again at the Broadmeadows branch of NAB with another valueless cheque in the amount of $225,000.

19You had the opportunity in the intervals between offending to reflect on the course of conduct you had embarked upon.  But you persisted until the bank investigated and froze your accounts, reporting your activities to the police.  In your police interview, you explained that you deposited these cheques to show your investors that you had the funds to pay them so that they did not annoy you.

20You told your interviewers that your investors 'wanted the money and I wanted to show them that I've got money but I'm using this money in Sydney and the cheque I deposited and they get bounce back after three days, so you know.  Even sometimes before I meet, you know, I'll go and have a meeting with these investors.  I have to deposit, you know, a cheque'.  You describe there how you dishonestly obtained a financial advantage by gulling your investors into believing that their investment in you was sound and safe.

21You appear to justify your conduct in your police interview by explaining that your goal was to deceive your investors.  You have not been charged with any offences relating to deceptions on your investors so I need to be careful in relation to the use I make of this explanation.  But far from being mitigatory, it is an aggravating feature of your offending.  Your counsel submitted that it was not your intention to actually obtain access to the funds you sought to move between your accounts.  But the aim was to create the illusion of liquidity to appease these investors.

22Whilst I acknowledge that you did not present these cheques in the expectation of increasing your account balance, this act is a double-edged sword, given your intention was to deceive investors and you acknowledged the deceptive nature of your conduct in the interview you had with police.  It was conceded by Mr Habib that it was open to me to find that you intended some form of deception. 

Personal Circumstances

23I turn now to your personal circumstances.  A summary of your personal circumstances was provided to the court in the report of Ms Carla Lechner.

24You were born in May 1980 and are currently 42 years old.  Currently and at the time of offending you were the sole income earner in your family.  You provide for your wife and five children.  You were born in Lebanon, the fourth of eight children.  Your mother and two of your siblings continue to live in Lebanon.  You indicated to Ms Lechner that you underwent a strict upbringing and that corporal punishment was 'the norm' in your family.

25Despite this, you reported to Ms Lechner that throughout your childhood you were not exposed to any domestic violence or substance abuse in the family.  You grew up without any learning difficulties and have described yourself as 'dux of the class' throughout primary and secondary school.  You graduated from university with a Master's degree, at which time you were encouraged by your father to establish a fruit and vegetable business which remained profitable until conflict between Syria and Lebanon caused changes in Customs policy detrimental to this enterprise.

26You indicated to Ms Lechner that the three month period in which Customs' issues caused your business to fold were the 'worst days of your life' due to the pressure of repaying creditors.  The stress from the financial strain was compounded by your desire to uphold your father's reputation in the community as a trustworthy man.  You then moved to Kuwait to develop a similar export business for dairy products before increasing unrest affected that business.

27You moved back to Lebanon but friction between cultural groups led to the decision to move to Australia with your wife, an Australian citizen you met in Kuwait.  You indicated to Ms Lechner that you found integration into Australia hard due to differences in customs and the lack of a social network in Australia.  You eventually found your niche by involving yourself in your local mosque giving talks to the congregation.

28Your counsel informed me that you continue to be heavily involved in your local Mickleham mosque which services approximately 70 people.  Upon your arrival in Australia you started a business importing rendering materials from China.  Although profitable, this business was not as successful as the one you ran in Kuwait and fell short of your expectations for it.  In 2018 you entered into a business venture to develop a block of land in Sydney.  Subsequent events caused the value of the development to be significantly less profitable than previous forecast and resulted in an adverse court judgment against you, causing further stress and financial strain.

29In an attempt to alleviate your financial predicament, you told Ms Lechner you sought to develop two other plots of land in Kalkaoo and Beveridge, and the conduct which makes up this offending was committed to provide the illusion of having wealth sufficient to encourage investors.  I note that your father passed away in 2020 which I am told caused you great anguish in light of the fact that you were unable to travel to his funeral.

The prosecution submissions on sentence.

30The prosecution acknowledged that your offending was unsophisticated and that the attempts to obtain financial advantage by deception were always going to be discovered by the bank. 

31The prosecution also conceded that the explanation you provided to the police as to the motivation for your conduct, that is being an intention to mislead investors, was not contested.

32The prosecution, quite fairly, raised the fact that whilst on bail you had been granted permission to fly to Lebanon for a period of 10 days to visit relatives.  During this time you had remained in contact with the informant in this matter and had provided information as to your location upon request.  It was submitted that this behaviour represents respect for and compliance with existing or previous court orders. 

33The prosecution submitted that a sentence which does not require a term of immediate imprisonment may be appropriate under the circumstances.

Defence submissions on sentence.

34At your sentence indication hearing Mr Habib made a number of submissions in mitigation.  It was submitted that you have demonstrated remorse for your actions through the admissions you made to police during your police interview.  Mr Habib conceded that the extent to which these admissions are indicative of remorse, is tempered by the fact that at the same time as you were making these admissions you were also down playing the significance of your actions.  You repeatedly asserted that you did not know that what you had done was a crime.

35I am prepared to find that you have demonstrated some degree of remorse for your actions as evidenced by your pleas of guilty. 

36It was also submitted that you are a man of otherwise good character who has excellent prospects of rehabilitation.  In support of this submission, Mr Habib took me to the fact that you continue to engage in property development as a means of providing for your family and that you have serviced all your outstanding debts other than the one you owe to NAB. You remain an active member of your local religious community and you have never consumed illicit substances or alcohol. 

37Your counsel submitted and I accept that you have pleaded guilty at an early stage and this fact mitigates your sentence.  A committal hearing was not commenced and your early pleas have relieved witnesses from being cross-examined.  It was also submitted that your pleas of guilty have occurred during a time when the court is experiencing the effects of the COVID-19 pandemic and are therefore of significant utility to the court.

38Your counsel also acknowledged that general deterrence, just punishment and denunciation are relevant sentencing considerations in your matter.  Mr Habib further submitted however, that specific deterrence is not a factor the court should give great weight to.  Ultimately, your counsel indicated that in light of the uncontested compensation order to be made, a community correction order with both rehabilitative and punitive conditions attached, would send a sufficiently clear message to the Victorian community about the unacceptable nature of your offending.

Sentencing Principles

39In sentencing you, I do not accept that specific deterrence ought to play a minor role.  Your debt to NAB remains outstanding and this offending came to an end when it was detected by the bank.  General deterrence has a significant role to play, as does denunciation of your conduct and just punishment.  Given your age and your lack of any prior criminal convictions however, I regard your rehabilitation as an important sentencing consideration.

40As Chief Justice French observed in Hogan v Hinch,

'Rehabilitation, if it can be achieved, is likely to be the most durable guarantor of community protection and is clearly in the public interest'.[1] 

[1]Hogan v Hinch (2011) 243 CLR 506, 537 at [32] (French CJ).

Prospects of Rehabilitation

41Your prospects of rehabilitation were canvassed in Carla Lechner's report.  In it, Ms Lechner indicates that you are suffering from depression and anxiety which began following the collapse of your Sydney business venture and accompanying financial troubles. 

42Ms Lechner notes that following psychological testing you achieved test scores indicating that you were 'likely to be severely psychologically distressed'.  And that you display symptoms of an adjustment disorder.  Your wife has also indicated to Ms Lechner that you are disengaged in the home and have a tendency to withdraw from your family.  Ms Lechner recognises a tendency for you to deny or minimise any internal distress you may be feeling.

43Despite that tendency which bears on your degree of insight into the triggers of your offending, Ms Lechner assessed you as having 'very good rehabilitation prospects.'  She indicated that you may benefit from further medical assessment to determine if you would be assisted by additional psychological support or antidepressant medication.  This assessment is based on a number of indicia raised in her report, namely:

(a), history of offending;
             (b), supportive and stable family;
             (c), no drug or alcohol issues;

(d), no mental health issues, separate to the stress associated with       events of the past few years; and

(e), a deep sense of shame in relation to these matters. 

44As to your prospects of rehabilitation, Mr Habib relied on the fact that you do not consume illicit substances or abuse alcohol.  Instead, when faced with financial stress arising from failed business ventures, you have continued to develop alternative business opportunities in order to relieve the stress.  Whilst I acknowledge that this response is commendable, it is also apparent that when faced with such stressors in this case, you resorted to criminal conduct, which you have acknowledged was intended to mislead your investors.

45Mr Habib submitted to the court that you are an active member of your local religious community, and have remained so since being charged with these offences.  

46Ms Lechner notes that the fragility of your present mental health would mean that a term of imprisonment would undermine your rehabilitation and place 'immense strain' on your family. 

47I note for completeness that a community correction suitability report dated 1 March 20223 assessed you as having a low risk of general offending. 

48On the basis of the materials before me, I am prepared to find your prospects of rehabilitation are reasonable, provided you continue to undergo psychological counselling which promotes the development of insight and coping strategies. 

Delay

49To delay:  Mr Habib submitted that there has been significant delay from the date of these offences until now.  He said that not all the delays can be laid at your feet.  He submitted that these delays have caused you great stress and anxiety.  No doubt that is true; however, you were self-represented until recently and the committal mention was adjourned at your request.  Your committal hearing was adjourned at your request.  The initial directions hearing in this court was adjourned to enable you to find legal representation at your request.

50You travelled overseas to visit family members.  A further directions hearing was adjourned at your request to allow you to find a lawyer, and your sentence indication was adjourned at your request, so that you could obtain a psychological report.  The benefit that flows to you because of delay will be modest, but I will take into account the steps that you have taken in this period to advance your reformation and rehabilitation.

Hardship

51To hardship:  Your counsel indicated at your sentence indication that you are the sole income earner for your family, and therefore your family will suffer as a consequence of any penalty I impose on you.  Whilst

Mr Habib did not suggest that the principles in Markovic were engaged in your case, I acknowledge the impact this sentence may have on your ability to provide for your family, as well as the stress and anxiety you have experienced, knowing that your offending has exposed you to the risk of being separated from them.

Sentence

52Now to my sentence.  Mr Ammar, what I am proposing to do at this stage on Charges 1 and 2 is to record a conviction and place you on a community corrections order for a period of two years from today's date.  Before I ask you to consent to such an order being made, I have to tell you a little bit about the order so that you know what it means. 

53The following core conditions apply to all community correction orders: 

(a), you must not commit whether in or outside Victoria, during the period of the order, an offence punishable by imprisonment;

(b), you must report to and receive visits from the secretary to the Department of Justice or his or her nominee during the period of the order;

(c), you must report to the Community Corrections Centre at Coolaroo Justice Centre within two clear days of today;

(d), you must notify the secretary or his or her nominee of any changes of address or employment within two clear working days of that change;

(e), you must not leave Victoria except with the permission of the secretary to the Department of Justice or his or her nominee;

(f), you must comply with any direction given by the secretary that is necessary for the secretary to give to ensure you comply with the order.

54There are a number of other conditions attached to this order, and they apply to you: 

(a), you have to perform 300 hours of unpaid community work over a period of two years, as directed by the regional manager.  50 hours of treatment and rehabilitation satisfactorily undertaken are to be counted as hours of unpaid community work for the purposes of the unpaid community work condition;

(b), you must be under the supervision of a community corrections order for a period of two years;

(c), you are required to be supervised, monitored and managed as directed by the secretary or his or her nominee;

(d), you must undergo any medical assessment and treatment that may include general or specialist medical treatment or treatment in a hospital or residential facility, as directed by the regional manager;

(e), you must undergo mental health assessment and treatment including, but not limited to, mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility as directed by the regional manager;

(f), you must undergo programs or courses aimed at addressing factors relating to the offending as directed by the regional manager;

(g), you must attend for review of your progress and compliance or otherwise with conditions of the order, and you have got to come back before me on Friday 15 September at 9.30 am;

(h), I direct that I be advised by your corrections officer of any non-compliance with these conditions, and I will then determine if the matter should be brought back before me. 

55Now, Mr Ammar, I can only impose a community corrections order if you agree to such an order being imposed, so I need to tell you just a little bit more about that.  I should advise you that if you contravene or breach that order by committing further offences, you can be charged and a sentence of imprisonment is one of the options that can be imposed for that breach.  You can also be resentenced for the offences that are before me.

56One of the options available includes a term of imprisonment.  So, you need to be extra careful for the next 24 months, no committing any further offences that might incur a term of imprisonment, otherwise you are back before this court and you will be resentenced on these two charges that are now before me.  I also advise you that if you fail to comply with any direction of the secretary to the Department of Justice, that is, a community corrections officer as part of this order, a substantial fine can be imposed.  Now, Mr Ammar, do you understand all of that?

57OFFENDER: (Through interpreter) Yes, Your Honour.

58HIS HONOUR:  And do you agree?

59OFFENDER:  Yes.

60HIS HONOUR:  Very well.  Remain standing, Mr Ammar.  I sentence you as follows. 

61On Charge 1, obtaining a financial advantage by deception, you are convicted and sentenced to a community corrections order of two years. 

62On Charge 2, attempting to obtain a financial advantage by deception, a rolled up count, you are convicted and sentenced to a community corrections order of two years, concurrent with the sentence on Charge 1. 

63Pursuant to s 6AAA of the Sentencing Act 1991, I declare that but for your pleas of guilty, I would have imposed a total effective sentence of 18 months jail with a non-parole period of 10 months.

64An order for compensation in the terms provided by the prosecution to the court will also be made.

65HIS HONOUR:  Very well.  Are we in a position to have Mr Ammar sign his order?  Mr Ammar, in a moment you will be asked to sign your community corrections order.  Are there any ancillary orders besides the compensation order?

66MS ZAMMIT:  No, Your Honour.

67HIS HONOUR:  Very well.  I'll leave the bench while that's being done.  I thank counsel for their assistance.

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