Director of Public Prosecutions v Haidarie

[2022] VCC 843

IN THE COUNTY COURT OF VICTORIA
AT MELBOURNE
CRIMINAL DIVISION Revised
Not Restricted
 Suitable for Publication

Case No: CR-21-02113

DIRECTOR OF PUBLIC PROSECUTIONS

v

MONAWAR HAIDARIE

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JUDGE:	Judge Karapanagiotidis
WHERE HELD:	Melbourne
DATE OF HEARING:	16 May 2022 & 27 May 2022
DATE OF SENTENCE:	03 June 2022
CASE MAY BE CITED AS:	DPP v Haidarie
MEDIUM NEUTRAL CITATION:	[2022] VCC 843

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty – Obtaining property by deception – Making a false document – Knowingly dealing with proceeds of crime – Possession of identification information – Continuing criminal enterprise – Good prospects of rehabilitation – High moral culpability – Bugmy – Verdins – COVID-19 pandemic.

Legislation Cited:      Sentencing Act 1991 ss 5, 6AAA; 6J(1); 18.

Cases Cited:Azzopardi v The Queen [2011] VSCA 372; Bugmy v The Queen [2013] 249 CLR 571; Friel v The Queen [2018] VSCA 48; R v Frugtniet [1999] 2 VR 297; R v Mills [1998] 4 VR 235; R v Verdins [2007] VSCA 479; Rossi v The Queen [2021] VSCA 296; Shiel v The Queen [2017] VSCA 359; Worboyes v R [2021] VSCA 169.

Sentence                    Imprisonment for a period of 3 years and 6 months.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Dr J. Harkess	Office of Public Prosecutions
For the Accused	Mr C. Oldham (Plea) Mr J. Valos (Sentence)	Valos Black & Associates

HER HONOUR:

1Monawar Haidarie, you have pleaded guilty to 6 counts of obtaining property by deception, 10 counts of making a false document, 5 counts of knowingly dealing with proceeds of crime and 2 counts of possession of identification information. 

2In relation to the 6 charges of obtaining property by deception, as agreed between the parties, you are to be sentenced as a continuing criminal enterprise offender under Part 2B of the Sentencing Act 1991 therefore the maximum penalty for each of these offences is 20 years imprisonment.  The maximum penalty for making a false document is 10 years imprisonment, knowingly dealing with proceeds of crime, 15 years imprisonment and possession of identification information, 3 years imprisonment. 

Circumstances of the offending

3The full circumstances of your current offending are set out in the summary of prosecution opening dated 17 November 2021, marked as Exhibit A on the plea.  At the time of your offending you were between 22 and 23 years of age.  Your offending can be broadly separated into 7 different incidents as follows:

Incident one (Charges 1, 2 and 3)

4In early January, Jonathon Leong advertised his Toyota Prado wagon for sale and you called the contact person, his brother, Timothy Leong, and arranged to inspect the vehicle at Timothy Leong's home.  You inspected the vehicle and identified yourself falsely as Ali Hamad.  On 21 January 2020 you emailed Jonathon Leong using the false name of Sumit Jayasuriya, claiming to be the accountant or broker of Ali Hamad.

5You requested a variety of documents proving ownership of the vehicle, as outlined in the prosecution opening, which Mr Leong later provided.  On the same day you contacted Car Buyers Australia and submitted a web form to sell your Toyota Prado, that is, Mr Jonathon Leong's vehicle, using the name of Timothy Leong and providing false details.  You were subsequently contacted and arranged for a Car Buyers mechanical inspector to examine the car that was parked at Timothy Leong's house.

6On 22 January 2020 you attended his home with the inspector as arranged.  Those in the Leong household were unaware that you had represented yourself as Timothy Leong.  The car was inspected and the final purchase price negotiated.  You then provided to Car Buyers documents that Jonathon Leong had earlier supplied you, along with a falsified purchase order from Waverley Toyota which purportedly showed that Jonathon Leong purchased the vehicle on 30 January 2020 (Charge 2).

7On 30 January 2020 the contract documentation for the sale was completed and you provided a signed contract to Car Buyers and the bank account details for your company, Ultraline Tiling Group Pty Ltd.  At all times, Car Buyers believed they were dealing with Jonathon Leong.  In reliance on the documentation on 31 January 2020, Car Buyers transferred the sum of $76,818 to your account (Charge 1, rolled-up count). On 4 February 2020, the fraud was discovered by Jonathon Leong and Car Buyers.

8In January 2020, Maria Rado advertised her 2019 Toyota Prado for sale and you contacted her using the alias Ali and arranged to inspect her car which you later did.  After doing so, on 28 January you contacted Ms Rado and told her that a finance company representative also needed to inspect the car.  You then contacted Car Buyers, using the name Ali, about selling the Toyota Prado and the booking was made for a mechanical inspector to attend.

9On 30 January 2020 Reece Broad of Car Buyers attended Ms Rado's property and inspected the car.  He made an offer to Ms Rado to purchase the car for $69,000.  She was confused because she had already agreed on a higher purchase price with you or the person she believed to be Ali. On 1 February 2020, a man called Steve called Ms Rado expressing interest to buy her car.  On the same day a sales manager at Car Buyers called you, or rather, you representing yourself as Ali, and you claimed to be Ms Rado's husband with authority to sell her car and you negotiated an agreed sale price.

10On 2 February 2020 a person referred to as Steve attended Ms Rado's property, agreed to purchase her car with a $100 deposit for a photo of her licence which she provided. Subsequently you provided Car Buyers with a range of documents including a signed contract for the purchase of the vehicle, purporting to have been executed by Ms Rado with the request that payment be made to your Bendigo Bank account (Charge 3) and a copy of her licence.

11In reliance on this documentation on 3 February 2020 Car Buyers paid $66,818 into your Bendigo Bank account (Charge 1 – rolled up). Later that day you transferred $65,000 into your Bendigo Bank personal account. On 4 February 2020, Car Buyers arranged for a tow truck to attend to collect Ms Rado's car and your deception was then discovered. 

Incident two (charges 4, 5 and 6)

12On 15 January 2020, Haistha Manthrirathne advertised the sale of his Toyota LandCruiser, registration AY1503. On 11 June 2020, you created a false advertisement for the same vehicle, listing Jonathon Leong as the seller and using contact details in the name of Maria Roda.  A sales representative of Car Giant responded, believing he was communicating with Jonathon Leong and a sale price for the car negotiated.

13You provided Car Giant with a range of documents as outlined in the prosecution opening, including a falsified ATO statement and a falsified purchase order for the vehicle in the name of Jonathon Leong (Charge 5).  In reliance on these documents, on 19 June 2020, Car Giant transferred $69,000 into your bank account (Charge 4 – rolled up). Your deception was later discovered.

14In June 2020, Car Giant located another vehicle for sale, a Toyota LandCruiser Sahara, BFQ402, which falsely listed Jasser Haddad as the seller.  The real seller of the vehicle was Mornington Toyota.  A representative of Car Giant contacted the seller, which was you purporting to be Mr Haddad. A sale price was negotiated and you provided a range of documents as outlined in the prosecution opening, including a falsified title search in relation to a property purportedly owned by Jasser Haddad and a falsified purchase agreement from Brighton Toyota purportedly showing that Jasser Haddad had purchased the vehicle on 30 April 2020 (Charge 6).

15Car Giant asked for a walk around vehicle to ensure the vehicle existed.  You later attended at Mornington Toyota a couple of times, identified yourself as Dennis and made the video which you later sent to Car Giant.  In reliance of this material they transferred to your account the sum of $103,000 (Charge 4 – rolled up).

Incident three (Charges 7, 8, 9, 10 and 11)  

16On 3 July 2020, the day after you received the $103,000 just referred to, you purchased a Toyota LandCruiser Sahara (1RC4EK) for $102,000 from Waverley Toyota in the name of your tiling company. You executed the contract for this purchase (Charge 7) and in mid-July you were intercepted by police for speeding while driving the vehicle.  You later advertised this vehicle for sale, again using the name Jasser Haddad.

17On 19 August 2020, a representative of Auto Auctions in New South Wales responded to your advertisement and you agreed on a negotiated price.  You provided Auto Auctions with a range of documents, including a falsified VicRoads extract that represented Mr Haddad was the registered owner of the vehicle (Charge 9).  After inspecting the vehicle they transferred $110,000 into your bank account (Charge 8).  When they attempted to arrange for collection of the vehicle you could not be contacted and then they reported the matter to police.

18On 1 September 2020, a sales representative of HBK Automotive Pty Ltd located the same advertisement, spoke to you and again you represented yourself to be Jasser Haddad.  They met you in person, inspected the vehicle and negotiated the sale price.  They transferred $104,500 into your account and you gave them the vehicle (Charge 10).  Later that day you purchased a 2013 Toyota Hilux, registration 1AF9JG from the Mihai Auto Group for the sum of $23,600.  You drew from the funds you had obtained from HBK Automotive (Charge 11).  You dealt with a representative from Dealer Direct Car Sales to purchase this vehicle and used the name Diliwar Hidaire.

Incident 4 (Charges 12, 13 and 14)

19In or about October 2020, you placed an advertisement for the sale of a Toyota LandCruiser, registration BKP260, using the name Paul Daicos. A representative of Morley City Hyundai (trading name for IDOM Morley Pty Ltd) contacted you and negotiated a sale price. You provided a number of documents to MCH including: a falsified VicRoads certificate of registration, falsely representing that Paul Daicos owned the vehicle and a Sellers Declaration to Dealer purporting to have been signed by Paul Daicos (Charge 13). Relying on these documents and believing you were Paul Diacos, MCH transferred $110,000.00 into your nominated bank account. 

20You also told the MCH representative that your wife was interested in selling a different LandCruiser, registration BFG402, which is the same vehicle as the second Car Giant incident. You provided documents including a falsified VicRoads certificate and a seller's declaration to dealer (Charge 14) and they transferred $107,000 to your nominated Macquarie Bank account (Charge 12 – rolled up).  MCH never received the vehicles and contacted police.

Incident 5 (charges 15, 16 and 17)

21On 3 November 2020, a car buyer at Big Box Cars Pty Ltd responded to the same advertisement you had placed for vehicle BKP260 and you represented yourself again to be Mr Daicos.  The sale price was negotiated.  You provided a number of documents including a falsified VicRoads certificate of registration and a vendor's statement representing the seller to be Paul Daicos (Charge 16).

22You also informed Box Cars that you had another Toyota LandCruiser for sale specifying registration BFQ402, the same car you sold to MCH.  Again you provided documents including a vendor's statement representing the seller to be Mr Daicos (Charge 17). Relying on these documents and representations Big Box transferred $106,000 for the vehicle with registration BKP260 and $97,000 for the vehicle with registration BFQ402 into your nominated bank accounts.

Incident 6 (charges 18 and 19)

23On 5 November 2020, you contacted Coburg Toyota and agreed to purchase four vehicles, as outlined in paragraph 59 of the prosecution opening.  Namely, vehicles registered BGX161 for $92,000, BGX163 for $58,500  and two other LandCruisers at $123,000 each.  On 5 November 2020 you made two transfers in the sum of $100,000 each to Coburg Toyota's bank account.  The $200,000 were funds that had been obtained by deception from Box Cars already described.

24You transferred the funds relating to vehicles BKP260 and BFQ402 to be delivered and registered to your company.  On 6 November 2020 you made a further transfer of $196,000 to Coburg Toyota for the two other Toyota LandCruisers. This transaction however was flagged by the bank as potentially fraudulent and the funds were withheld but for $49,500 which were in the possession of Coburg Toyota as cleared funds.  This money was later seized by police as proceeds of crime.  You were observed by police driving BGX163 which was later located at your address and BGX161 which was found at the factory you are linked to.

Incident 7 (charges 20 and 21)

25In November 2020, you again listed a vehicle, BKP260 for sale using the name Ivan Balto.  David Nuemann contacted you and he engaged a leasing company, Smart Leasing, to assist with the purchase.  You provided Smart Leasing with the following documents at their request: a falsified vehicle inspection report for the vehicle, an invoice signed by Ivan Balto requesting the payment be made to a Westpac account, a falsified VicRoads certificate of registration and a falsified Westpac proof of account balance document (Charge 21).

26On 26 November 2020, in reliance of these documents and representations Smart Leasing transferred $105,000 from Mr Nuemann's bank account into yours.  Upon discovery of your fraud, Mr Nuemann contacted the bank which was able to reverse the transaction before you were able to withdraw the funds.

Charges 22 and 23

27When arrested on 9 December 2020 you were found in possession of a USB containing documents which included the personal documents of a Mr Andrew Biddell, including pay documents (Charge 22) and a copy of a Medicare card with the name David Baldock (Charge 23).

28You were interviewed soon after and then again on 30 March 2021. You made a number of denials as outlined in detail in the prosecution opening.  I will not repeat all of those details here.  What I have just referred to is a summary of the opening. I sentence you on the basis of the opening that has been exhibited.

Gravity of the offending

29As conceded by your counsel, Mr Oldham, your offending is serious; it was persistent, planned and sophisticated.  The total value of property obtained by deception was approximately $940,000 which is a significant amount of money.  Your offending spanned the period 21 January 2020 to the date of your arrest on 9 December 2020.

30Your offending involved multiple victims and involved various multiple acts of deceptions - some represented in rolled up counts - from the creation of fraudulent documents to attending meetings with others and falsely representing who you were.  The maximum sentence of imprisonment is 20 years on the obtain property by deception charge, by reason of the operation of the continuing criminal enterprise provisions, reinforcing the seriousness of your offending.

31Dr Harkess for the prosecution submits that your offending has a number of aggravating features, including: the degree of calculation and deliberation that went into the transactions; your ability to exploit the flaws in some of the sale processes; the amount of money stolen and the amount of enrichment; and the effect on the victims which included both businesses and ordinary every day consumers, in terms of the breach of trust, has been profound and long lasting. I accept that these matters are relevant to my assessment of your offending as objectively serious and your moral culpability as high.

32While each charge represents separate criminality, as discussed at the plea hearing, there is some overlap between the charges and I must be cautious to avoid double punishment.  For example, the proceeds you dealt with, the subject of Charge 7, were likely derived from your offending on Charge 4.  You then used these proceeds to purchase the car which was then sold and the subject of Charge 10. Part of the money from that sale was then used to purchase another car the subject of the proceeds, Charge 11. The proceeds, Charges 18 and 19, represent your use of the money derived from Big Box Cars Pty Ltd, the subject of Charge 15. 

33I note that the cars purchased using money the subjects of Charges 18 and 19, as indicated in the opening were found and recovered by police. The $49,500 of funds that you attempted to transact through the Westpac Bank were seized by police as the proceeds of crime.  Also, the money transaction subject of Charge 20, obtain property by deception, was fortunately reversed and there was no actual financial loss to Mr Nuemann.

34On

your behalf it was submitted that during the offending period your business began to fail due to the pandemic and you were regularly using methamphetamine and gambling.  I note that Dr Harkess submitted that while there is a suggestion of gambling there is no other evidence of it.  In her psychological report, Ms Miriam Latif diagnoses you with a number of conditions, including stimulant use disorder and gambling disorder.  These disorders arise within the context of your untreated post-traumatic stress disorder (PTSD), which has its roots in your traumatic childhood in Afghanistan and your exposure to the atrocities of war. Given your personal history and the opinions of Ms Latif, I am prepared to accept that you were using drugs and gambling during this period of time. 

Mr Haidarie, this does not excuse or mitigate your offending but it does help place it in context, which I will return to shortly.

Victim Impact

35I have received a number of victim impact statements from the people affected by your criminal offending.  Jasser Haddad, whose name or identity you stole to facilitate some of your offending, speaks of feeling stressed and of your offending having reputational and financial consequences for him.  Paul Daicos also speaks as a victim of identity theft and fraud and outlines the traumatising effect your offending has had on him psychologically, emotionally and financially. He lives with anxiety and an overwhelming fear of this happening again.

36Jonathon Leong has also suffered repercussions due to the misuse of his personal information and there has been a significant impact on his day to day life.  Thomas Kennedy of Big Box Holdings indicates that apparently their insurance company did not cover the offending and the company has had to bear the financial impact, including writing off a total of $203,000 which has had a significant impact on their annual profitability. Also, your offending resulted in significant scrutiny of their company's processes and high level stress for those who had transacted with you.  Beau Garner of Are you Selling Pty Ltd also states that their insurance company has not covered their losses and the business therefore remains fully out of pocket.  Maria Rado states that she no longer trusts people and that your offending has made it difficult for her to sell her vehicles annually which she's been doing for the past 20 years.  She also has a constant fear for the safety of her home and family.

37It is clear that your offending has had a significant impact on your victims and while it must not swamp the sentencing  process, this is a matter that I must, and do, take into account in sentencing you.

Plea of guilty and remorse

38On 1 October 2021 you entered a plea of guilty to the charges at a committal mention hearing listed at the Magistrates Court.  I accept that your plea of guilty is an early one and that it acknowledges acceptance of responsibility on your part.  Your counsel also submitted that it demonstrates remorse.

39Dr

Harkess urged the court to exercise some caution in relation to this given your initial denials and reflections.  More recently you have expressed to

Ms Latif strong regret and remorse for your actions.  Your initial denials and reflections need to be viewed in the context of what Ms Latif refers to as your emotional immaturity, poor emotional insight and likely disorders.I agree with your counsel's submission that while you may not have initially been as full and frank as you could have been, you have since reflected and I accept that your plea is indicative of remorse. 

40I also accept that your plea is of high utilitarian value, particularly as it is entered during the currency of the COVID-19 pandemic and is worthy of greater weight in mitigation.[1] Had your matter proceeded to trial, given the number of transactions involved, it would have likely occupied relatively lengthy court time and resources.  Your plea of guilty in these circumstances will be reflected in substantial mitigation of your sentence.

[1]Worboyes v R [2021] VSCA 169; Rossi v The Queen [2021] VSCA 296

Personal Circumstances

41As to your background, Mr Haidarie, it was detailed by you Counsel, Mr Oldham, on your behalf and also canvassed in the report of Ms Latif that I have already referred to. 

42You were born in Afghanistan and are of Hazara ethnicity.  You lived there with your mother, father and six siblings, growing up in poverty and surrounded by the effects of war.  Your father managed to escape first and arrived in Australia in 2000 and you and your family later joined him.

43You initially lived with your family in New South Wales and then you all re-settled to Victoria in 2009. You describe your family as a loving and supportive one.  Your father has worked in construction and your mother stays at home looking after the family.

44You started school in Australia in grade 3 and you struggled academically as it took you a few years to learn English.  You were teased and bullied at school because of your ethnicity and inability to speak English. Notwithstanding these difficulties you still managed to complete Year 12 through VCAL and began an automotive course. You did not complete the course but instead began working at Coles and then you worked full time in construction.

45Prior to your arrest you were working in your own tiling business and initially at least it was doing well.  Your business however suffered, I was told, because of the closures in construction due to the COVID19 pandemic and you increasingly returned to gambling and drug use.

46You married and you met your wife in December 2019 whilst on holidays in Pakistan and the two of you married some four months later. Your wife arrived in Australia on a spousal visa whilst you were custody. I was told that while she was initially living with your family she has since moved out and will be seeking a divorce or separation, which in custody has been a source of continuing uncertainty and stress for you.

47You began smoking cannabis in around 2017 after leaving school.  At first it was casual then it progressed to daily use.  In December 2019, you tried methamphetamine for the first time and used it casually initially.  After you returned from Pakistan in May 2020 you began using it more frequently and became close with drug associates and other negative peers. At the time of your arrest you were using methamphetamine daily, getting no sleep and experiencing symptoms consistent with drug induced psychosis. You have also suffered from gambling problems since the age of 18 and would regularly gamble at the Crown Casino.

Prior criminal history

48Your prior criminal history, Mr Haidarie, is a relatively limited one.  You appeared in the Children's Court in December 2015 for a range of dishonesty and driving matters and were placed on a supervision order.  In October 2016, you were before the Magistrates Court for driving offences and sentenced to a 6 month work only Community Corrections Order (‘CCO’). On 9 July 2019, the Dandenong Magistrates Court sentenced you to a 12 month work only CCO for charges of attempt to commit indictable offences (x2) and making a false report to police, some of the details of which I was told about. In November 2019, you appealed a 14 day sentence of imprisonment to this court that had been imposed for driving matters and you were dealt with by way of an aggregate fine.

49Your prior history is relevant to an assessment of your rehabilitative prospects and the weight of specific deterrence. I note you have appeared to have never received a term of imprisonment or an order with a therapeutic component.

Factors in mitigation

50I take into account the additional factors, Mr Haidaire, that were advanced on your behalf as follows:

Youth

51While you are not a young offender as defined in the Sentencing Act you are nevertheless still a relatively young man now at the age of 25 and at the time of your offending you were aged between 22 and 23.

52I take into account your relative youth in sentencing you.  Younger people may lack the degree of insight, judgment and self-control that is possessed by an older adult.[2] In her report, Ms Latif states that you impressed her as an emotionally immature young man whose youth and naivety led you to engage with a negative peer group that normalised drug taking and criminal activity.

[2]R v Mills [1998] 4 VR 235; Azzopardi v The Queen [2011] VSCA 372.

53Also, the law recognises that younger offenders have greater potential to be redeemed which in the long term better protects the community from further offending.

Background and mental health considerations

54I have already referred to your personal background. I accept that you have endured a traumatic background involving witnessing extreme violence that no child should see or be exposed to. In Afghanistan you witnessed the atrocities of war including seeing people ‘blown into pieces’ in a shot blast at approximately the age of five.  You reported to Ms Latif that you felt 'on edge' constantly as a result of regular bomb blasts in your neighbourhood and were constantly in fear of your life.

55You came to Australia in 2005 at the age of eight. Your father, as I have already noted, had arrived five years earlier.  You told Ms Latif that it was difficult not having contact with him for this period and living with your mother while violence and war was raging in Afghanistan.

56When you first arrived in Australia you had very limited education.  You could not speak English and you had difficulties adjusting and struggled at school.

57You have never previously received mental health treatment or formally been diagnosed with a mental illness. In custody you are now medicated with Mirtazapine to help with depression and sleep.

58Ms Latif's formal testing indicates that you are currently experiencing a depressive episode with accompanying distress symptoms. Also you meet the requisite number of endorsed symptoms for all criterions required for a diagnosis of PTSD. Additionally you meet criterion for the clinical disorders of cannabis use disorder, stimulant use disorder, gambling disorder and adjustment disorder with depressed mood.

59In relation to the adjustment disorder Ms Latif considers it likely that you have suffered from adjustment issues since your arrival in Australia in 2005.  She notes your significant conduct and adjustment issues as a child at school and during the COVID interruptions and your lack of employment. She states, 'more currently Mr Haidaire is likely having difficulty adjusting to life in custody and as a result is currently experiencing moderate symptoms of depression.  This is likely making his time in custody more difficult than someone not suffering from the same condition.'

60Also she opines at paragraph 80 of her report, 'Mr Haidaire suffers from PTSD as a result of early exposure to trauma and war.  He continues to suffer from intrusive and distressing memories about traumas he has suffered and has difficulty sleeping as a result of nightmares and anxiety. Mr Haidaire’s substance use and gambling addiction is likely related to unresolved trauma and ongoing stress and anxiety he experiences as a result.'

61At the time of your offending you were unable to use work as a distraction from your emotions. Your 'symptoms' worsened and you developed new avoidance techniques by increasing your use of substances and gambling as a way to medicate your emotions.  It is likely that your increased use of drugs and engagement with gambling was a coping strategy to medicate your untreated PTSD and adjustment disorder.  This likely left you in a poor financial situation where making 'easy money' was attractive and could be used to fund your drug and gambling habits.

62On the material before me I accept that as a child you were exposed to significant trauma and displacement which has caused or at least contributed to your PTSD.  In turn this, at least in part, explains your recourse to drugs and gambling as a copy mechanism.

63While your counsel understandably did not make a submission that your deprived childhood should reduce your moral culpability or that it enlivened Bugmy principles,[3] I consider that it is still an important consideration to the exercise of my indistinctive syntheses. It helps provide some explanation for drug use and gambling and a general context to your overall history into your offending. 

[3]Bugmy v The Queen [2013] 249 CLR 571.

64I also accept in light of the opinions expressed by Ms Latif and your various clinical disorders that limb 5 of Verdins[4] has application in your case, in that a term of imprisonment will weigh more heavily on you than on someone of normal health.

Time in custody

[4]R v Verdins [2007] VSCA 479.

65You have been in custody now since 9 December 2020 which is over 17 months.  You have served your time in custody during the currency of the pandemic.  This has been difficult for you due to the restrictions and you have spent a significant period of time held in isolation.  I accept custody has been more onerous and I take this into account in sentencing you.

Prospects of rehabilitation

66I accept overall that you present with good prospects of rehabilitation.  As I have already noted, although you have a relevant history, it is a limited one.  You also present with relatively good employment prospects.  You have run your own business in the past, at least for a period of time successfully. I was told that upon your release you can work with your father who has his own rendering business at the moment.

67You have also pleaded guilty and have accepted responsibility for your offending. Your offending has also caused you great shame; as you reported to Ms Latif you are the only one in your family to get into any kind of trouble.   Your family are otherwise hard working and contributing members to our community. You are fortunate, Mr Haidaire, to have their continuing support and stable accommodation and I note that your father has attended all hearings in support of you.

68Ms Latif assesses your risk of reoffending as low.  She considers that you will benefit from psychological treatment and psychiatric intervention as outlined in paragraph 92 of her report, including mental health treatment, specialised gambling addiction treatment, drug monitoring with strict compliance conditions and a psychiatric assessment. In order to reduce risk of reoffending in the future she considers that essentially you engage treatment recommendations which centre around drug treatment and treatment for PTSD and depression. I also note in the MHAR’s report that was obtained through this court process that there is a recommendation that you pursue or try and pursue counselling through Foundation House which specialise in counselling for refugees with a trauma history. In Ms Latif's opinion she considers your prognosis is good given all the protective factors in your favour.

69Also I note that I received a bundle of certificates in relation to drug courses that you have managed to do in custody.

Sentencing principles

70The basic purposes for which a court may impose a sentence of punishment are general and specific deterrence, rehabilitation, denunciation and protection of the community. As I have already noted, you are still a relatively young man with a relevant but limited history who has now spent a substantial and salutary period of time on remand in custody. I have accepted that you have demonstrated some remorse and that you feel great shame in disappointing your family. My assessment of these factors cause me to find that specific deterrence, while still certainly relevant in your case, can be given less weight. General deterrence and denunciation are of course important considerations in your case. Given your age, circumstances and future prospects, your rehabilitation also needs to be given weight and on my assessment will ultimately best protect the community.

71I take into account the sentencing guidelines referred to in s5 of the Sentencing Act were relevant to your case. There was no dispute between the parties that on Charges 1, 4, 8, 12, 15 and 20 were to be a sentence as a continuing criminal enterprise offender.  Your counsel submitted that while this causes an increase in the maximum penalty it does not compel a sentencing judge to automatically increase the individual sentences. Your counsel referred me to the Court of Appeal decision of Shiel v Queen[5] which stands for this proposition.

[5]Shiel v The Queen [2017] VSCA 359.

72Dr Harkess accepted that provisions do not operate to constrain the court's sentencing discretion but submitted that the maximum penalties, along with the significant amount of money involved, should attract greater or increased punishment on these charges. I accept that the provisions do not operate to automatically cause an increase in penalties to be imposed on the charges.  I will, as I am required to, have regard to the maximum penalty which will be balanced with all other relevant factors. I will sentence you on the basis of the objective gravity of your offending and I will also give full and proper weight to the mitigatory factors relied upon on your behalf.

73I have also had regard to the current sentencing practises for the offences involved in charges of obtain property by deception and the continuing criminal enterprise provisions including the case of Shiel that I have just referred to. That case involved some 50 separate dishonesty transactions by the appellant during his employment as a retail claims assessor for AMP. Through the use of false authorisation form requests he processed payments into his own bank account and the total loss to AMP was $1,448,030.18. The Court of Appeal resentenced the appellant to a total effective sentence of five years and 10 months imprisonment with a non-parole period of three years and nine months.

74Dr Harkess has also referred me to the case of Friel v R,[6] where the total deceptions, both actual and attempted, involved over $660,000.  The Court of Appeal did not disturb the total effective sentence imposed of four years and four months imprisonment. While the amount was certainly less in that case, there were other additional aggravating factors, including that some of the offending occurred on bail and while the appellant was on a CCO. In addition, the appellant in that case was not able to draw upon some of the mitigatory factors that apply in your case such as the additional utilitarian value of your plea as recognised in R v Worboyes and also matters unique to you, that I have already canvassed. While other cases are of assistance obviously each depend on their own facts and circumstances. 

[6]Friel v The Queen [2018] VSCA 48.

75There was no dispute between the parties that a term of imprisonment is warranted in your case.  The dispute between the parties centred around the manner in which this should be served. Your counsel, Mr Oldham submitted that a term of imprisonment combined with a CCO was the appropriate sentence in your particular circumstances. Dr Harkess submitted that an immediate term of imprisonment that involved a head sentence and a non-parole period was the only appropriate sentence.

76As discussed at the plea hearing in order to properly assess my sentencing options I had you assessed for a CCO and you were assessed as suitable for such an order. I note that you were assessed using Corrections’ particular tools as being a high risk of reoffending but it was confirmed that you had previously completed your past CCO’s.

77After close and careful consideration, Mr Haidarie, notwithstanding the important mitigatory factors in your favour, weighing all matters, particularly the gravity of your offending, the only just and appropriate sentence in your case is one which results in a head sentence, together with the imposition of a non-parole period.

78In sentencing you I must give effect to the totality principle.  I intend to impose individually appropriate sentence but I will reduce the orders for cumulation so as to ensure that the total effective sentence gives effect to the totality principle, taking into account the overall criminality of your offending and your circumstances.  Also, as I have already noted there is some overlap in the offending.  In addition there are a number of charges that, while involving separate criminality,[7] facilitated the commission of your deceptions.

[7]R v Frugtniet [1999] 2 VR 297.

79In setting the non-parole period I have in particular taken into account the mitigatory factors put on your behalf and the recommendations of Ms Latif to reduce your risk of reoffending in the future.

Sentence

80Mr Haidarie, I have now reached the point where I am going to pronounce the sentences on each individual charge. Counsel, including your counsel will take note of the individual sentences and then I will arrive shortly at the total effective sentence.

81Just give me one moment, gentlemen.

82Charge 1, which is the obtain property by deception charge, 17 months' imprisonment.

83Charge 2, make false document, 9 months imprisonment.

84Charge 3, make false document, 7 months imprisonment.

85Charge 4, obtain property by deception, 20 months imprisonment.

86Charge 5, make false document, 9 months imprisonment.

87Charge 6, make false document, 9 months imprisonment.

88Charge 7, proceeds of crime, 10 months imprisonment.

89Charge 8, obtain property by deception, 13 months imprisonment.

90Charge 9, make false document, 7 months imprisonment.

91Charge 10, proceeds of crime, 10 months imprisonment.

92Charge 11, proceeds of crime, 4 months imprisonment.

93Charge 12, obtain property by deception, 27 months imprisonment.

94Charge 13, make false document, 9 months imprisonment.

95Charge 14, make false document, 9 months imprisonment.

96Charge 15, obtain property by deception, 25 months imprisonment.

97Charge 16, make false document, 9 months imprisonment.

98Charge 17, make false document, 7 months imprisonment.

99Charge 18, proceeds of crime, 11 months imprisonment.

100Charge 19, proceeds of crime, 6 months imprisonment.

101Charge 20, obtain property by deception, 12 months imprisonment.

102Charge 21, make false document, 9 months imprisonment.

103Charge 22, possess identification information, 2 months imprisonment.

104Charge 23, possess identification information, 2 months imprisonment.

105Charge 12 is the base sentence and I make the following orders for cumulation: charge 1, three months imprisonment; charge 4, four months imprisonment; charge 8, two months imprisonment; charge 15, four months imprisonment; and charge 20, two months imprisonment.

106They are cumulative on Charge 12 which again is the base sentence and that ought to arrive at a total period of 42 months, in other words three and a half years.

107Can I give you both a moment to check those figures.  Dr Harkess?

108DR HARKESS:  It is my calculation as well, Your Honour.

109HER HONOUR:  Thank you.

110I will give you a moment, Mr Valos. 

111DR HARKESS:   You're on mute, Mr Valos.

112HER HONOUR:  Sorry, Mr Valos, do you agree?

113MR VALOS:  Sorry, I was muted, I think, by your associate though I agree.

114HER HONOUR:  Very well.   Thank you.  I am setting a non-parole period of two years and three months imprisonment. 

115I declare pursuant to s18 of the Sentencing Act that 541 days has been served. My s6AAA declaration is that had you not pleaded guilty to these charges I would have sentenced you to five years and eight months imprisonment with non-parole period of four years and two months.

116I make the forfeiture order in the terms sought.

117Pursuant to s6J(1) of the Sentencing Act I declare that you have been sentenced as a continuing criminal enterprise offender in respect of Charges 1, 4, 8, 12, 15 and 20 on the indictment.  I will cause that declaration to be noted in the records of the court.

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