Director of Public Prosecutions v Asadi
[2021] VCC 253
•11 March 2021
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-20-01049
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| HAKAM ASADI |
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JUDGE: | HIS HONOUR JUDGE HANNEBERY | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 26 February 2021 | |
DATE OF SENTENCE: | 11 March 2021 | |
CASE MAY BE CITED AS: | DPP v Asadi | |
MEDIUM NEUTRAL CITATION: | [2021] VCC 253 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Catchwords:
Legislation Cited: Sentencing Act 1991 (Vic).
Cases Cited:Marasco v The Queen [2016] VSCA 85; Boulton v The Queen (2014) 248 A Crim R 153.
Sentence: Community Corrections Orders of two years duration. In addition to the mandatory conditions, 250 hours of unpaid community work.
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr P. Raimondo Mr S. Kenna | Solicitor for the Office of Public Prosecutions |
| For the Accused | Ms Z. Garde-Wilson | Garde Wilson Lawyers |
HIS HONOUR:
1Hakam Asadi, you have pleaded guilty to one charge of obtaining a financial advantage by deception and one charge of attempting to obtain a financial advantage by deception. Both of these charges are 'course of conduct' charges, in that both charges encompass multiple separate acts of dishonesty committed between the dates specified in the indictment. The maximum penalty for Charge 1 is 10 years' imprisonment and for Charge 2, 5 years' imprisonment.
Circumstances of Offending
2The circumstances of the offending were comprehensively detailed in the Summary of Prosecution Opening.[1] The matters contained in that opening were not challenged. I will, however, set out a somewhat shortened version of the circumstances of the offending.
[1] Exhibit P1.
3You were 31 years old at the time of the offending and are now 33. The victim in this matter is Integra Choice Control Pty Ltd (trading as 'Integra'). Integra acts as an intermediary between the National Disability Insurance Scheme ('the NDIS') and its participants (persons with a disability) as administered by the National Disability Insurance Agency ('the NDIA').
4Under this arrangement, the NDIA determine a budget that each eligible participant can access for the provision of appropriate disability care and support services from various service providers. Participants have the option to liaise directly with the NDIA, work with intermediaries such as Integra or self-manage their planned budget.
5If a participant chooses to use Integra, then Integra's role is to receive invoices from service providers for valid services delivered to active participants and facilitate payment for such services back to the service provider.
6At the time of offending you were employed by Integra as a customer service team leader. You were employed from 30 April 2018 to 10 January 2019. The offending continued after your employment up until 25 January 2019.
7You would, on behalf of participants, process invoices and arrange for payment to the service providers.
8Integra operated a web portal named 'ICC Web Portal' ('the Portal') which was accessed by participants, providers and Integra employees. Participants and providers gave their respective banking details and contact details. Invoices received from providers were processed through the Portal and the actions undertaken in this process were linked to a specific username. The offender's username was 'hasadi'. Integra call centre staff were able to create, modify and delete invoices on behalf of providers.
9You created false invoices using provider details. You would alter the provider's bank account details to one of your own bank accounts. The monies obtained were credited to one or other of these bank accounts. This meant that when the fraudulent invoices were paid, the money went to you, not to the purported provider.
10You used participant names from the 'Inactive List' to facilitate this offending. This meant that the financial advantage obtained had the effect of fraudulently diverting money from the scheme to you. I clarified in the course of the plea that by using the names of inactive participants, this meant that the loss was to the public purse generally, rather than impacting particularly on the budget allocation provided for any specific individual relying on the NDIS. As such, you are not to be sentenced on the basis that your offending caused any identified loss of resources or services to any individual participant of the NDIS.
11You attempted 17 of these kind of fraudulent transactions between 17 December 2018 and 28 January 2019. On eight occasions, you were successful in having money paid into one of the four accounts you listed at various times. This was the course of conduct that is covered by Charge 1, whereby you obtained $52,385.46 in total financial advantage. I am advised that to this point in time none of the money has been recovered or repaid, nor is there any immediate prospect of it being repaid given your current financial circumstances. I do, however, take the view that it is appropriate to make a compensation order in that amount to as requested to Integra.
12On nine other occasions, you were unsuccessful in your attempts to obtain money from the provider because Integra did not approve the payments proceeding. In total you attempted to obtain a financial advantage in the sum of $85,992.63, and this is the subject of Charge 2.
13It is notable that your offending continued for a period after you ceased employment with Integra on 10 January 2019.
14
The CEO of Integra became aware of the potentially fraudulent behaviour on
8 January 2019 and engaged forensic accountants to investigate. The matter was later referred to police for further investigation.
15At about 6.44 am on 12 February 2020 by prior arrangement you met with police at the Southern Cross Railway Station, Spencer Street Melbourne. You were arrested and then taken to the St Kilda police station for questioning.
16A record of interview was conducted. You told investigators your role within the company was to head a team of call centre employees who would receive calls from providers, participants and the NDIS to process invoices. You agreed your username was 'hasadi'. You agreed that Integra upgrades bank account details for providers. You could not recall ever putting your bank account number in a providers account. You denied knowledge of the offending or being aware of the stolen funds even being in your bank accounts. You admitted that you were the holder and user of the CBA and ANZ bank accounts that were subject of this enquiry. You denied the offending stating you did not create the invoices in question and did not recall receiving any of the funds in question. You stated the only way you could think this could have occurred was through a copy and pasting error.
17You were released and on 11 May 2020 you were charged on summons.
18At a committal mention on 27 August 2020 you indicated a plea of guilty to the charges. There is no dispute that this plea has been entered at the earliest reasonable opportunity.
Gravity of Offending
19In relation to the gravity of the offending, I note the following:
20At the time of the offences you were employed as a customer service team leader or at least up until the time you ceased that employment halfway through January. It was through this role, with your privileged access to the Integra NDIS invoicing system and your knowledge as to how to use it, that you were able to commit the offences. This offending represents a gross breach of the trust placed in you by your employer;
21Whilst the nature of the fraud itself was relatively crude, it cannot be said to entirely lack sophistication. There was a level of guile in your decision to use inactive accounts, then again in crafting false invoices of an amount and of a nature that you believed would be approved for payment by your employer. That said, the money was directly channelled into accounts directly linked to you, so it cannot be said that there was much cunning applied to your efforts to avoid detection.
22The offending did, however, occur over a period of more than a month and involved you engaging in 17 separate dishonest acts. Each charge is a course of conduct offence that comprises multiple successful frauds in Charge 1, and unsuccessful frauds in Charge 2.
23The offending did involve a degree of calculation and planning that persisted beyond even your period of employment. I do note, however, that the offending ceased prior to you becoming aware that either your former employer nor any other investigators had become aware of your dishonesty.
24The amount of money taken and attempted to be taken was substantial, though not such as to elevate the gravity of the offences above the lesser examples of this kind of offending heard in this court. The seriousness of the offending is really sourced in the breach of trust rather than in the amount defrauded.
25As I have already noted, the fact that this fraud was perpetrated in the context of payments intended for the NDIS does not especially elevate this offending above other examples of crimes against the public purse, since the 'inactive participant' technique you employed meant that no specific beneficiary of the NDIS can be identified as being adversely impacted by your dishonesty.
Personal History
26
I have had the benefit of a very comprehensive psychological report prepared by
Mr Luke Armstrong.[2] He did identify that you have previously endured some issues with regard to your mental health, but it is not contended on your behalf that there are any psychological or psychiatric illnesses that are contributing factors to the commission of the offence. The report does, however, provide a detailed personal history that is relevant to sentencing and that I will briefly summarise.
[2] Exhibit D2.
27You were born in Baghdad and raised through the Iraq war with a military father and a mother who was employed with UNICEF. You directly experienced the terror of war as a child in Iraq. Those experiences were such that Mr Armstrong suggested that you endured 'probable features of PTSD as a child' though he does not diagnose you with that condition at this time.
28You arrived with your family in New Zealand as refugees at the age of 11. You are now a citizen of New Zealand.
29Your life in New Zealand also had its challenges for you. You had no English language skills when you arrived. Your reported that your father was 'periodically harsh, punitive and violent'. Your parents separated and this led to a financial crisis for the family and the loss of the family home. You also had the disadvantage of being in a racial minority in New Zealand and this was at a time of heightened tensions post the '9/11' terror attacks, and this led to your involvement in altercations some of which were apparently very violent, and on one occasion that is detailed you were injured by a broken bottle. This exposure to racial violence, in combination with your experience of war and the problems of your parents' relationship, are said by Mr Armstrong to be the basis for what he observes to be your current anxiety and hypervigilance.
30You completed schooling to year 11, then commenced a mechanic pre-apprenticeship before switching to complete three years of an interior design course at TAFE.
31You worked in retail throughout your early twenties, then at age 24 you commenced a customer service role in the telecommunications industry. You have had several steady roles in this field leading up to the start of your employment with Integra, where you had the team leader role that has been described in the Prosecution Opening. This employment commenced in April 2018 after you emigrated to Australia with your partner Jasmin.
32Save for your involvement with the offending currently before the court, your progression from the challenges of your childhood to a position of authority and responsibility at Integra was impressive. That you have overcome such hardships to make sustained career progress makes this offending both disappointing and surprising. It is almost bewildering given your background and the position that you have reached that this offending was apparently motivated by a desire to improve your modest but by no means dire financial circumstances. I am told that you wanted to provide better for your partner at a time that you considered you were being ill-treated at work.
33There has been no suggestion made that I should not accept these as the true reasons for the offending. I simply observe in accepting those reasons that whilst both matters are understandable sources of stress and anxiety, even in combination they seem inadequate to justify your choice to commit dishonest acts that seem so out of character and put so much of what you had achieved at risk.
34You left your employment with Integra in January 2019 as detailed in the Prosecution Opening. In April 2019 you secured work with Lion Dairy and Drinks and maintained full-time employment there until late November 2020 when this position was unavailable due to COVID-19 restrictions.
35You are currently employed with Hoban Recruitment in a full-time customer service role and have been since 5 December 2020. It has been clarified that that role currently has you placed as State Co-ordinator for Hisense. I was advised that they are unaware of this matter before the court so it is somewhat speculative to predict their reaction. I accept, however, that you are entitled to be concerned for the security of your employment once they are appraised of this matter.
36Your partner, now fiancé, Jasmin works full time as a nurse with Cabrini. I am also advised that you have family support in the form of your mother and brother.
Matters in Mitigation
37There are a number of matters in mitigation of sentence that I take into account.
38You have pleaded guilty at the earliest possible opportunity. You are entitled to have that fact taken into account in your favour and I do so.
39There is significant utilitarian value in your plea, which is heightened at a time of pandemic restrictions and consequent listing challenges for the courts. Your plea has the effect of saving the time and resources that might otherwise have been expended if you had contested the matter.
40I accept that your plea reveals that you have genuine remorse. This conclusion is supported by the conclusion of Mr Armstrong that you 'accept full responsibility for [your] offending, there is genuine remorse and a desire to repay funds dishonestly obtained'.[3] I make this conclusion despite what was clearly a lack of remorse evident at the time of your interview. I accept that your actions and words since that interview reveal a level of contrition that was not present when the police first spoke to you.
[3] Exhibit D2.
41You have no prior matters and nothing subsequent nor pending. This matter is properly described as being completely out of character.
42I take into account that a significant period has elapsed since the cessation of this offending in January 2019, and that your good behaviour since then reinforces that you have excellent prospects of rehabilitation. This conclusion is also based by the fact of your plea of guilty, your previous good character, your strong work history, your stable relationship and the psychological material indicating that you are a low risk of reoffending. And this is an assessment that is also made by the Community Corrections Order report.
43It was submitted on your behalf that the delay in this matter was such that I should consider it in mitigation of sentence. I do not, however, regard the time taken to investigate and then prosecute this matter to amount to the kind of inordinate delay that would amount to a form of punishment in itself. As I mentioned, however, I do take into account the fact that in the two years since the end of the offending you have resumed your previous life with full-time employment and without any further offending.
Submissions on sentence
44It was submitted by Mr Raimondo for the prosecution that 'a term of imprisonment is called for in this case'.[4] He submitted that the specific offending was 'mid to low range' for this type of offending. He contended that the nature of the case, namely a fraud case involving an employee, meant that general deterrence, denunciation and just punishment were relevant sentencing purposes in this case. He did not accept that there was an 'inordinate delay' in the matter coming to court and conceded that you had good prospects of rehabilitation.
[4] Exhibit P2.
45Mr Raimondo also drew attention to the case of Marasco v The Queen,[5] where over the course of 20 months an office manager engaged in 34 separate transactions to obtain over $26,000 in financial advantage. The Court of Appeal imposed a combination sentence of 160 days' imprisonment and a two year Community Corrections Order, and noted the 5 year delay in finalising the matter as a key factor in that decision.
[5] [2016] VSCA 85 (‘Marasco’).
46Like all comparisons, there were some significant distinctions to be made between the circumstances in Marasco and this case. Not least was the fact that Marasco pleaded 'not guilty' and the matter went to trial. After that Mr Marasco was sentenced on 30 charges as opposed to the two before the court here. He had not shown remorse nor insight. Even having regard for the allowance made for delay that was evident in that case but not in this one, I would regard the circumstances faced by you as being more favourable on sentence than those faced by the accused in Marasco. To the extent I must consider current sentencing practices, I do not regard Marasco to mean necessarily that a sentence of a Community Corrections Order alone is outside the sentencing discretion available in this case. I should also add that Mr Raimondo in his very careful and responsible submissions did not contend that that case in and of itself could or should be used to draw any conclusion about the available range in this case.
47Ms Garde-Wilson submitted on your behalf that having regard to the plea of guilty, the fact of two years having elapsed since the offending without subsequent or pending matters, your personal history and prospects of rehabilitation, that a disposition short of imprisonment was within the available range, and that having regard for the principle of parsimony such a disposition should be imposed.[6] Ms Garde-Wilson submitted in the alternative that if a term of imprisonment were to be imposed, it ought to be part of a combination sentence with a Community Corrections Order.
[6] Exhibit D1.
Sentence
48Stand up, Mr Asadi, thanks.
49Based on the submissions put by both counsel I obtained a pre-sentence report as to your suitability for a Community Corrections Order. The court in the guideline judgment of Boulton v The Queen[7] noted that such an Order can achieve all sentencing purposes. Consistent with the principles outlined in Boulton, the question for the court is whether there is any feature of this offending that requires the conclusion that imprisonment is the only option.
[7] (2014) 248 A Crim R 153 (‘Boulton’).
50In this case you have pleaded guilty to an offence that I think is properly conceded by the prosecution to be a lower to middle range example of a fraud offence. It is of a nature that general deterrence is significant in sentencing. I am also called upon by the Sentencing Act 1991 to manifest the community's denunciation of your conduct and generally impose a just sentence.
51You are able to call in your favour compelling material in mitigation of sentence. You have pleaded guilty early in a time of pandemic. You have no priors and nothing subsequent. Your personal history is a testament to your capacity to overcome the most severe of childhood obstacles, and I can conclude that your prospects of rehabilitation are excellent.
52In all the circumstances and weighing these matters I am of the view that the imposition of a Community Corrections Order with a substantial number of work hours is appropriate. Pursuant to s.40 of the Sentencing Act 1991 I propose to impose a single aggregate order for both charges. I consider that an aggregate order is open in the circumstances, having regard to the fact that all of the fraudulent actions, whether successful in obtaining a financial advantage or not, were committed with an identical method on the same victim over a relatively condensed period of time.
53What I am proposing to do at this stage, on Charges 1 and 2 is record a conviction and place you on a Community Corrections Order for a period of two years from today's date.
54Before I ask if you to consent to such an Order being made, I will tell you a little bit about the order and what it means.
55The following core conditions apply to all Community Corrections 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 of 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 the Melbourne Justice Service Centre within two clear days from today.
(d) You must notify the Secretary, or his or her nominee, of any change of address or employment within two clear working days after 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.
56There are a number of other conditions attached to this order, and they apply to you:
(a) You have to perform 250 hours of unpaid community work over a period of two years as directed by the Regional Manager (s.48C).
(b) You must be under the supervision of a Community Corrections Officer for a period of two years.
(c) You will be required to be supervised, monitored and managed as directed by the Secretary, or his or her nominee (s.48E).
57Now, I can only impose a Community Corrections Order if you agree to such an order being imposed. So I am going to tell you a little bit more about what that involves.
58I 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 (s.83A(d)).
59You can also be re-sentenced for the offences that are before me and that one of the options, as you are no doubt well aware, would be a term of imprisonment for those offences (s.83A(s)).
60So you have got to be especially conscious not to commit offences over the next two years. If you commit any further offences that might incur a term of imprisonment, you may well be back before the court and re-sentenced on the two charges that are before me.
61I also advise that if you fail to comply with any direction of the Secretary of the Department of Justice, that is a Community Corrections Officer, as part of this order, a substantial fine can also be imposed (s.83A(e) and A(f)).
62Do you consent - or do you want to speak to Ms Garde-Wilson or can I ask - - -
63OFFENDER: No, I do, Your Honour.
64HIS HONOUR: All right, I well I will go through. So, do you consent to the Community Corrections Order on the terms that I have just outlined?
65OFFENDER: I do, Your Honour.
66HIS HONOUR: All right, so based on that I will sentence you as follows.
67On Charge 1 and Charge 2 you are convicted and sentenced to a single aggregate Community Corrections Orders of two years duration. In addition to the mandatory conditions, I order that you undertake 250 hours of unpaid community work.
68Pursuant to s.6AAA of the Sentencing Act 1991, had you pleaded not guilty to these charges and been found guilty of them, I would have imposed a total effective sentence of 12 months' imprisonment with a nine-month non-parole period.
69Any there any other orders I have to make Mr Kenna? I mentioned the compensation order already, I have made that.
70MR KENNA: There are no other orders required, Your Honour.
71HIS HONOUR: Thank you. Yes. Now, Ms Garde-Wilson, I think there is a - or is there a 28-day stay already on the compensation order? Do you seek anything beyond that - - -
72MS GARDE-WILSON: No.
73HIS HONOUR: - - - or this going to be a case that he makes his own arrangements and (indistinct words) I will just make the standard, is it 28 days stay for that compensation order that automatically follows? Yes, can I say whatever the standard - - -
74MS GARDE-WILSON: It is automatic.
75HIS HONOUR: - - - default order is, I will make that. I will adjourn now until 10.30.
76MR KENNA: As Your Honour pleases.
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