Director of Public Prosecutions v Hamie

[2021] VCC 562

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

Case No. CR 20-01403

DIRECTOR OF PUBLIC PROSECUTIONS

v

IBRAHIM HAMIE

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JUDGE:	HIS HONOUR JUDGE WRAIGHT
WHERE HELD:	Melbourne
DATE OF HEARING:	3 May 2021
DATE OF SENTENCE:	7 May 2021
CASE MAY BE CITED AS:	DPP v Hamie
MEDIUM NEUTRAL CITATION:	[2021] VCC 562

REASONS FOR SENTENCE

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Subject:CRIMINAL LAW – Sentencing.

Catchwords:              Plea of guilty - Recklessly deal with proceeds of crime – Possess drug of dependence – Relevant criminal history – Drug addiction –Acquired brain injury – Verdins – Offender supported by an NDIS Plan – Time in custody onerous.

Legislation Cited:      Crimes Act 1958 s 194(3); Drugs, Poisons and Controlled Substances Act 1981 s 73; Control of Weapons Act 1990 s 5AA; Bail Act 1977 s 30B; Sentencing Act1991 ss 6AAA, 9, 18, 72.

Sentence:                  Imprisonment for a period of 18 months and an adjourned undertaking for a period of 18 months with conditions.

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APPEARANCES:	Counsel	Solicitors
For the DPP	Mr P Pickering	Office of Public Prosecutions
For the Accused	Mr L Barker	SLKQ Lawyers

HIS HONOUR:

Introduction

1Ibrahim Hamie, you have pleaded guilty to two charges of recklessly deal with the proceeds of crime, contrary to s 194(3) Crimes Act 1958 which carries a maximum penalty of 10 years imprisonment on each charge (Charges 1 and 2), and one charge of possession of a drug of dependence contrary to s 73 of the Drugs, Poisons and Controlled Substances Act 1981 which carries a maximum penalty of five years imprisonment or one year imprisonment, where the court is satisfied that the offence was not committed for any purpose relating to trafficking (Charge 3).

2You have also admitted the related summary offences of possession of a prohibited weapon, contrary to s 5AA of the Control of Weapons Act 1990 which carries a maximum penalty of two years imprisonment (summary Charge 11) and commit indictable offence whilst on bail, contrary to s 30B of the Bail Act 1977, which carries a maximum penalty of three months imprisonment (summary Charge 13).

3You have also admitted your Criminal Record.

Circumstances of the offending

4A prosecution opening was tendered on the plea and may be summarised as follows:

5At the time of the offending you were 58 years of age and residing at 15/41 Broad Street, Footscray.  You were in receipt of a Centrelink disability pension and in a relationship with Kirsten Austin.  At your direction on 29 August 2019 Ms Austin opened a National Australia Bank (‘NAB’) personal savings account.

6Your co-offender, Michael Carroll, is the director of Paul Michael Motors Pty Ltd, a used car sale business, and Westgate Rentals.  The business has operated from Maidstone since 1997.

7The victims in this matter are Watpac Pty Ltd (Watpac), a building and construction company and Placecorp (Australia) Pty Ltd, which provided subcontracting services to Watpac.

8At the time of the offences, Watpac had entered into two subcontracting agreements with Placecorp for the construction of a specialist rehabilitation centre and a military vehicle centre of excellence.

Cyber attack and transfers to Mr Carroll

9Placecorp suffered a cyber attack on its computer accounting system, resulting in emails being sent to Watpac on 7 August 2019 purporting to provide a change of banking detail for the making of progress payments from Watpac to Placecorp. The emails gave Mr Carroll’s business bank account details to Watpac, falsely purporting those banking details to be Placecorp’s.

10On 3 September 2019 two progress payments of $838,014.83 and $235,001.83 were made by Watpac into Mr Carroll’s business bank account in the mistaken belief that it was the Placecorp account.  Prior to the payments being made, the balance of Mr Carroll’s account was $938.35.

Charge 1

11On 4 September 2019, Mr Carroll made a transfer of $705,028 to Gold Dealers Exchange, located at 701/227 Collins Street, Melbourne, and withdrew a further $5000 from the account.

12On the same day, Mr Carroll attended at Gold Dealers Exchange and took possession of 88 gold bars weighing approximately 10kg.  The total cost was $709,593.00 inclusive of fees.

13On 4 September 2019, Mr Carroll made an electronic transfer of $20,000 from the business account to you.

14On 5 September 2019, Mr Carroll made a further electronic transfer to you of $25,000 from the business bank account and made a withdrawal of $55,000 in cash from the business bank account.

15Mr Carroll also wrote a cheque for the sum of $190,000, which was deposited into the NAB account of Ms Austin.

16It is these facts that relate to Charge 1, recklessly deal with the proceeds of crime.

Arrest and interview

17On 25 November 2019 Mr Carroll was arrested at his address at 510/25 Windsor Terrance, Williamstown.  Mr Carroll denied the offending and is the subject of continuing criminal proceedings.

18Police executed a search warrant at your home at 19/41 Broad Street, Footscray and located the following:

(a)   A piece of gold of approximately 250g which you tried to hide under a couch on which you were sitting.  The gold had been melted down and the serial number removed;

(b)   $2500 cash;

(c)   A Victorian driver licence in the name of Robert Harris but showing your photograph, and multiple drivers licences and identity documents which were from other persons; and

(d)   A taser (related summary offence 11).

19It is the drivers licences and identity documents from the other persons which relate to Charge 2, recklessly deal with proceeds of crime, and as noted, the taser relates to summary Charge 11, possess a prohibited weapon without exemption or approval.

20Police also located the following drugs of dependence, which gives rise to Charge 3, possession of a drug of dependence:

(a)   4g of methylamphetamine in a snap lock bag;

(b)   two plastic bags containing 20 vials of testosterone;

(c)   three oxycodone tablets; and

(d)   a 1 litre Frantelle water bottle containing GHB.

Ms Austin’s evidence

21Ms Austin was interviewed following your arrest and made a statement including that:

(a)   She had been instructed by you to open the NAB bank account in August 2019;

(b)   You said that you wanted her to sell jewellery and other antique items through Gumtree to make it look like they had sold $190,000 worth, as you would be getting a cheque for that amount;

(c)   At your instruction, she advertised various items which totalled $190,000. However, when enquiries were made by potential purchasers, she was instructed by you to say that the items had already been sold;

(d)   

On 3 September, she was given a cheque for $190,000 signed by

Mr Carroll to deposit into her NAB account;

(e)   The following day, the cheque cleared and you instructed her to withdraw $500 for you;

(f)    A few days later she withdrew $1000 from the same account on your instruction and gave it to you;

(g)   She found that the account had been blocked on 10 September 2019;

(h)   A short time after the clearing of the cheque, you purchased a Mercedes SLK for $20,000 and a yellow van for $5000 from Grays Online; and

(i)    Two days before the search, on 23 November 2019, you showed her a piece of gold, about the size of her palm.

22Police located further items which connected you to Mr Carroll:

(a)   A business card for Mr Carroll’s used car dealership Paul Michael Motors; and

(b)   A business card for Gold Dealers Exchange.

23Police located a handwritten note in your house which outlined the intended distribution of the funds received by Mr Carroll into his business account from Watpac:

(a)   Party 1 to receive $507,500 in gold, $50,000 in cash and a cheque for $190,000;

(b)   Party 2 to receive $202,500 in gold and $1250; and

(c)   Party 3 to receive $45,000 in transfer, $5000 cash and $1250.

24At the time of the offending you were on bail which gives rise to related summary Charge 13, commit indictable offence whilst on bail.

Interview and investigation

25You were arrested and participated in a recorded interview with police on 25 November 2019.  You denied the offending connected to the money and cheque received from Mr Carroll and denied knowledge of the illegal drugs.  You said all the items such as the gold, jewellery and identifications were found by you and that you sold things you found to make money.

26

Police subsequently confirmed that $500 was withdrawn from Ms Austin’s account on 9 September 2019 and a further $1000 on 10 September 2019. 

Ms Austin separately made a purchase valued at $2998 from JB Hi-Fi at Chadstone using this account prior to the account being blocked.

27The NAB were able to prevent the further distribution of the balance of the account of $185,204.00. The balance of the amounts fraudulently diverted from Placecorp’s account is $839,057.33 and it has not been recovered.

Nature and gravity of the offending

28Given the amount of money that was involved in relation to Charge 1, your offending can only be described as serious.  While I accept that the co-accused, Michael Carroll, was instrumental in the obtaining of the progress payments, you were intimately involved as a recipient of the proceeds of the moneys transferred from Watpac Pty Ltd.  You also had control of the account that you instructed your then partner Kirsten Austin to set up and to receive funds.

29Mr Barker, who appeared on your behalf at the plea, submitted that there is no evidence that you had any part in the planning or executing of the cyber attack. Further, he submits that the evidence suggests that it was Michael Carroll that played the major part in the fraud as he was the receiver of the funds and disbursed them accordingly.  When consideration is given to the material relating to your acquired brain injury and cognitive deficiencies, that will be discussed further below, there is some merit in that submission given that the initial cyber attack and the deception involved a degree of complexity and planning.

30The victim companies were approached in order to provide victim impact statements; however, they have declined.  Nonetheless, there is no doubt your offending caused great loss and inconvenience to the companies involved.

31As to Charge 2, while the seriousness is not at the level of Charge 1, the items found suggest that you were reckless in relation to your involvement in relation to the proceeds of criminal activity.  That said, as was pointed out by your counsel, you are not charged with the more serious charge of intentionally dealing with the proceeds of crime.

32As to Charge 3, I formally find that your possession of the drugs GHB, methylamphetamine, testosterone and oxycodone was not for the purposes of trafficking.

Personal circumstances

33You are 59 years of age, having been born in Tarane, in the north of Lebanon, in 1961 at a time of significant political instability.  Your father was a butcher and your mother was a homemaker and they are both now deceased.  You are the youngest of nine siblings, and they all live in Europe or the Middle East.

34You were only able to attend primary school for five years due to the political unrest in Lebanon.  At the age of 15 you moved to Germany and completed the equivalent of a TAFE course and became a hairdresser.  You began smoking cannabis at the age of 19.

35You migrated to Australia at the age of 32 after meeting an Australian citizen, Latifa, who you later married.  You had three children together: twin daughters who are now aged 25, and a son who is now aged 17.  You separated from your wife and maintained a relatively close relationship with your children until being remanded.  As a result of embarrassment you feel being in custody and COVID-19 restrictions, you no longer have contact with those children.

36In 1997 when you were 36 you were involved in a serious head on motor vehicle collision on a semi-rural road in Whittlesea.  One person in the other vehicle died as a result of the collision and you survived, albeit suffering serious physical injuries and a brain injury, requiring hospitalisation and rehabilitation.  You still live with ongoing chronic pain as a result of those injuries.  The acquired brain injury has caused significant impairments to your cognitive and intellectual functioning and you developed schizophrenia after the accident, which are matters I will discuss further below.

37The accident also marked the beginning of your criminogenic lifestyle: you developed a problematic relationship with alcohol and other drugs, you began engaging with antisocial peers and committing offences.  In particular, your issue with methamphetamines escalated to an addiction which you have battled for many years.

38In terms of your employment history, you were a fashion designer and ran a beauty business prior to the motor vehicle accident.  In the period leading up to being remanded, you had been finding and selling hard rubbish and other items and buying and selling cars.  You met Mr Carroll through this work.  You have been in receipt of the Disability Support Pension while living in the community.

39You were in a relationship with Ms Austin for around two and a half years and share a child together, a daughter, who was born shortly after you were remanded and is now 16 months old.  Your daughter is now in the care of your cousin as Ms Austin is not in a position to care for her due to her own drug addiction issues and involvement by the Department of Health and Human Services.  Whilst in custody you have weekly video visits with your daughter, and you hope to be her primary carer upon release from custody.

40You have successfully applied for funding from the National Disability Insurance Agency (‘NDIA’) and the current approval plan that commenced on 15 May 2020 includes funding for support workers, occupational therapy, psychology and support coordination.  The plan will provide you with support for up to 12 hours a day, seven days a week for 12 months from 15 May 2020.  While much of that time has expired while you have been in custody, I was told at the plea that the funding will roll over for a further 12 months.

41A report was prepared by Dr Laura Anderson, neuropsychologist, and tendered on the plea which I have taken into account.  Dr Anderson provides a comprehensive history and was able to conduct a number of psychometric tests in order to measure your cognition.

42In short, Dr Anderson is of the view that before your motor vehicle accident at the age of 36, you were functioning within the ‘average’ range.  Following the accident that resulted in your brain injury and later development of schizophrenia, your cognitive function has significantly declined.  Further, she observes, unsurprisingly, that your illicit drug use clearly presents as a factor that contributes to your offending behaviour.  Dr Anderson is of the view that your cognitive profile is considered to be permanent and unlikely to improve over time.

43I was provided with a letter from Phoenix Specialised Youth and Disability Services that confirms your National Disability Insurance Agency plan.  The plan will provide you with support workers that will assist in coordinating services such as psychology and occupational therapy.  Once the plan rolls over your will have 19 support worker hours per week.  Your services will be available to you for the duration of your life.

44Three references were tendered from friends who have known you for many years.  Each of the writers have offered to support you upon your release to enable you to reintegrate into the community.

Sentencing considerations

45A committal hearing took place in the Magistrates’ Court on 28 October 2020 with only the informant being cross examined.  You pleaded guilty to the three charges on the indictment on 11 March 2021.  Mr Barker submitted that your plea should be considered an early plea and I accept that in the circumstances your plea was entered at the earliest reasonable opportunity.  As was discussed at the plea, the evidence demonstrates that while you did not receive the entire amount that is particularised in relation to Charge 1, you have nonetheless accepted that you were reckless as to the sum that is particularised.  While this matter may have been subject to argument at a trial, you have spared that process by accepting responsibility in pleading guilty to the particularised sum. As such, your plea has spared the resources, time and expense of a jury trial and demonstrates a willingness to facilitate the course of justice, which I take into account in your favour.

46Deterrence, both general and specific, are prominent sentencing considerations. However, Mr Barker submitted that Verdins considerations are enlivened that would thereby reduce the weight given to those considerations.  Mr Pickering, who appeared on behalf of the Director of Public Prosecutions, submitted that the evidence does not allow for considerations of Verdins as the evidence suggests that your involvement in this offending required a degree of planning on your part including, for example, the setting up of bank accounts at critical times.  In my view, while I accept that your brain injury and schizophrenia affect your functioning to some extent, it is very difficult to disentangle your disabilities from the long term drug addiction you suffer which is also linked to your offending.  In the circumstances in my view general deterrence is able to be moderated but only to a limited degree.

47You have an extensive and long criminal history; however, as was pointed out at the plea, but for some relatively minor matters in the early nineties, your criminal history escalated after the car accident where you suffered the brain injury.  Your history is dominated by drug and dishonesty matters and you have served a number of periods of incarceration.  You have also been given opportunities through community correction orders.  Thus, in my view your prospects of rehabilitation cannot be assessed positively.  However, on this occasion, for the first time, on your release you will have the benefit of significant support services as a result of the NDIS scheme.  Those support services will provide structure and if you accept those services, in my view your prospects of rehabilitation will improve.

48Mr Barker submitted that your time on remand has been particularly onerous. First, you have spent the majority of that period under the COVID-19 restrictions when in person visits and education and treatment programs were suspended. Secondly, your daughter was born when you were in custody and you have therefore been deprived the important opportunity to develop a parental bond with your daughter.

49It was submitted on your behalf that when consideration is given to the matters in mitigation, including that the time you have spent in custody has been during the pandemic, the 17 months you have served already is sufficient punishment for the offending.  It was further submitted that the time you have served could also be combined with a community correction order.

50Mr Pickering submitted that the time you have served falls within the range of a non-parole period; however, a head sentence with a non-parole period should be imposed in all the circumstances.

51I had you assessed for a community correction order and you have been assessed as unsuitable which is unfortunate given the intention was to simply link you into further drug rehabilitation programs to help you remain drug free.

52Following the plea hearing I received further material in relation to your NDIS plan which confirms the funded supports you will continue to receive for the remainder of your life.  The supports are holistic and include psychological support which undoubtedly will include a focus on your drug issues.  In my view it is critical that you engage with the NDIA, and to ensure your engagement, I will make compliance a requirement as part of the sentence I will impose.

Sentence

53Mr Hamie, would you please stand.

54Ibrahim Hamie, on Charges 1 and 2, recklessly dealing with the proceeds of crime, as the offences are a series of offences of a similar character, pursuant to s 9 of the Sentencing Act1991, you are convicted on each charge and sentenced to an aggregate term of 18 months imprisonment.

55On Charge 3, possess a drug of dependence, pursuant to s 72 of the Sentencing Act 1991 you are convicted and will be placed on an adjourned undertaking with conditions for a period of 18 months.  The undertaking will contain a condition that you continue to engage with the Delegate of the Chief Executive Officer, National Disability Insurance Agency or their nominee.

56In relation to the Summary Charge 11, possessing the taser, you are convicted and sentenced to one month imprisonment.  In relation to Summary Charge 13, committing indictable offences whilst on bail, you are convicted and sentenced to one month imprisonment.  The sentences on the summary charges will be wholly concurrent with the aggregate sentence I have imposed in relation to the indictable charges.

57Pursuant to s 18 of the Sentencing Act1991, I declare that 529 days be reckoned as the period of imprisonment already served under the sentence I have imposed.  That does not include today.

58Pursuant to s 6AAA of the Sentencing Act1991, if not for your pleas of guilty I would have sentenced you to 2 years imprisonment, with a non-parole period of 18 months.  You can have a seat, thank you.

59Stay seated, Mr Hamie.  What I have done as part of the sentence is when you are released you will be on a good behaviour bond in relation to Charge 3.  Charges 1 and 2 are a prison sentence of 18 months, which you will complete shortly, but then for the 18 months after release, you will be on a good behaviour bond.  If you commit any offence while you are on that bond you could breach it and come back before me for resentencing, all right?

60OFFENDER:  I don't understand, Your Honour.

61HIS HONOUR:  I will read it out to you again later and Mr Barker will explain it.

62MR BARKER:  I will explain it, Your Honour.

63HIS HONOUR:  And as part of that promise to the court you will also be required to continue to engage with the NDIS.

64OFFENDER:  Yes.

65HIS HONOUR:  I will have that prepared and I will read it out to you formally.  I have signed those disposal and forfeiture orders.

66MR PICKERING: As Your Honour pleases.

67MR BARKER:  Thank you, Your Honour.

68HIS HONOUR:  Mr Hamie, as I explained, when you are released from prison you will be on a good behaviour bond.

69OFFENDER:  When I will be released, Your Honour?

70MR BARKER:  I will explain to him in a minute, Your Honour.

71HIS HONOUR:  Probably in less than a couple of weeks, I think.  The good behaviour bond actually starts today and goes for 18 months, and during the course of that, the next 18 months, you must be of good behaviour.

72OFFENDER:  Yes.

73HIS HONOUR:  And also, you must engage with the National Disability Insurance Agency and the people that are there to help you.

74OFFENDER:  Yes.

75HIS HONOUR:  You must do those things; right?

76OFFENDER:  Yes.

77HIS HONOUR:  Do you understand the matters I have just outlined to you?

78OFFENDER:  Yes.

79HIS HONOUR:  Do you consent to that order being made?

80OFFENDER:  Yes.

81HIS HONOUR:  All right, I will sign that and it will be sent to you in the prison to sign.  What I will do, Mr Barker, is when I leave the Bench, I will allow you enough time as you need to explain the sentence to him.

82MR BARKER:  Thank you, Your Honour, I'm grateful.  It won't take more than a few minutes.

83HIS HONOUR:  No, take the time you need.  I want to make sure he understands. Otherwise, thank you for your assistance and we will adjourn.

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