Director of Public Prosecutions v Hammoud

[2016] VCC 844

IN THE COUNTY COURT OF VICTORIA  Revised
Not Restricted
 Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR-15-01789

DIRECTOR OF PUBLIC PROSECUTIONS

v

SAMER HAMMOUD

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JUDGE:	HIS HONOUR JUDGE MAIDMENT
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	17 June 2016
CASE MAY BE CITED AS:	DPP v Hammoud
MEDIUM NEUTRAL CITATION:	[2016] VCC 844

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr. P. Pickering	Office of Public Prosecutions
For the Accused	Mr. A. Furstenberg

Pages 1 - 1

 

 

HIS HONOUR:

1Samer Hammoud, you pleaded guilty to an indictment charging you with one offence of obtaining property by deception, namely cash in the sum of $937,510 in the period between 29 March 2009 and 19 March 2015.  The maximum term of imprisonment for that offence is 10 years.  You have also admitted prior court appearances which are set out in the criminal record that has been filed with the court.

2The prosecution tendered and read on the last occasion this matter was before the court, a summary of prosecution opening dated 4 February 2016, Exhibit A.  I am not going to read it all again.  It sets out in some detail, the nature of the offending conduct.  I incorporate it into these reasons for sentencing in its entirety.  Attached to it, in substantially the same terms as the schedule attached to the indictment, is a schedule setting out the details of the various individual transactions which went to make up the total cash obtained as a result of your offending conduct, being as I have indicated, $937,510.

3The summary of prosecution opening deals with 51 separate motor vehicles, each of which you obtained or purchased and wound or caused to be wound back the odometers of each of those vehicles and then represented to prospective purchasers that the vehicles had the longevity equivalent to the new odometer reading. You charged a higher price than that for which you had purchased the vehicles. 

4The unsuspecting purchasers purchased the vehicles on the basis that the representations as to the odometer reading were accurate.  Typically, the winding back in each case was between 100,000 kilometres and 200,000 kilometres, although there were some instances where the winding back was more than 200,000 kilometres. 

5In 21 of the instances, the deception was supported by the provision to the purchasers, of a falsified service book.  It was accepted by your counsel on the plea that the net gain over the approximately six year period in which the offending took place, and that is, the net gain for yourself, was something in the order of $200,000.  Although it is plain from the victim impact statements that were tendered and from common sense, that the losses to the victims would have totalled a sum much closer to the $937,510 that you obtained.

6The effect of your criminality on your victims was substantial.  They lost the substantial value of their motor vehicles.  In many cases, it is to be expected that the vehicles you sold them would be virtually unsaleable. Certainly the price that they could hope to obtain would be significantly less than that which you charged them.  Also, of course, they have been involved in expenses for replacement parts and servicing far greater than that which they would have expected given the odometer readings that were represented to them at the time of purchase.

7There are 19 victim impact statements. It is clear that the impact upon the victims was significant, both in terms of financial impact as well as emotional impact.

8I note that in one case, that is, in respect of a motor vehicle sold to Narelle McNab on 26 October 2013, where you had organised the winding back of the odometer by more than 100,000 kilometres, you charged her $16,500. That was a vehicle that you had sold previously on 7 September 2013 for $16,200 to another of your victims. 

9That first victim discovered the fraud and returned the vehicle to you.  Ms McNab's victim impact statement is under Tab 12 in the Victim Impact Statements tendered on behalf of the prosecution. 

10Far from daunted by the discovery in relation to the first unsuspecting purchaser of that vehicle and the return of that vehicle to you, you continued with your conduct and sold another 27 vehicles with similar fraudulent intent and similar modus operandi.  The next of the vehicles after the sale to Ms McNab on 26 October 2013, was made on 19 November 2013.  In other words, you hardly missed a beat in your offending conduct. 

11But that was not the first time that you had, what might be regarded as serious cause, to pause and desist from your conduct. Because on 1 August 2011, you appeared at Sunshine Magistrates' Court in relation to a number of offences arising from similar conduct, and on that occasion the court dealt with you - it seems quite leniently - in that you were fined $2000 without conviction. 

12You did pause for a short period of time after that conviction. But the first purchase made for the next fraudulent sale was on 6 November of 2011.  That is, a little over three months after the appearance before the Magistrates' Court.  After that appearance before the court, you continued with the majority of your offending conduct. 

13The conduct was persistent over the period of the almost six years and clearly, has the effect of undermining public confidence in the second-hand car market.  It undermines public confidence in advertising that appears on Car Sales.com and other such advertising media. It destroys people's sense of trust in the purchase of second hand motor vehicles.

14Your victims have little prospect of recovering compensation from you.  No compensation has been provided, although I note that you indicated through your counsel, a willingness to participate in some sort of compensation arrangement. It is difficult to see how that could ever materialise.

15I regard your moral culpability as very high.  You had every opportunity to consider what you were doing.  You were motivated by greed, not need.  The fact that you were under some sort of financial pressure at various stages was absolutely no excuse for this conduct.  You did not pause after you married for a second time.  You did not pause after you obtained permanent employment at Metcash on 8 April 2013.  Indeed, within a very short period of time, that is, about 10 days after obtaining that employment with Metcash, you purchased a motor vehicle on 18 April 2013, and then sold it to another of your victims, Stuart Shaw, on 2 May 2013 for a gross profit of $7250, having wound back the odometer or caused the odometer to be wound back by 118,000 odd kilometres.

16This is a serious offence.  It is a serious example of a serious offence and albeit that there is one charge before me, it clearly is a rolled-up charge incorporating a substantial and sustained course of criminal conduct.

17In terms of matters personal to you, you are aged 30, you pleaded guilty at the first reasonable opportunity.  You have provided two statements, which are now signed, to the prosecution identifying persons who assisted you in this criminal conduct, one of whom in respect of the number of separate transactions.  It is apparent from the statements that you provided that you engaged the assistance of one or more other people, by paying them a fee to assist you with the winding back of odometers.  Typically the fee, according to your statements, was in the order of $150 or $200 or $100. 

18You also provided copies of screen shots from your mobile phone apparently, indicating ongoing discussion with one of those persons and it was submitted on your behalf that those screen shots evince threatening behaviour by the person that you had engaged to assist you, apparently because you had not paid the fees that you had agreed to pay. 

19The prosecution indicated that in their opinion, the assistance which you provided through these statements was not great.  Indeed, it could not significantly assist the authorities because by the time the assistance was provided by you, the only offences that could sensibly be contemplated against the person you identified were of a summary nature and charges could not be laid because they would be out of time. 

20I note that in any event these statements are directed at somebody well down the food chain in terms of participation in this criminal enterprise and not a person who was expecting to participate in the profits or indeed was necessarily informed as to the full nature of the criminal conduct in which you were engaged.

21Nevertheless, I do take into account the assistance that you have provided, and I take that into account in reducing the sentence that I would otherwise have imposed somewhat.

22Another matter upon which your counsel relied heavily was that you face the risk of deportation at the end of the sentence I am going to be imposing upon you and that knowledge of that risk will make your period of incarceration more burdensome. That will of course, be even more so because of the risk that you may be deprived of the opportunity of settling in Australia with your wife and young child. 

23I note that the fact that you will be deprived of the ability to associate with them and be associated with your child's upbringing will itself be a burden or burdensome upon you in the period during which you are incarcerated. But it seems to me that the risks of deportation and the impact upon you serving a term of imprisonment will be substantial and I do propose to reduce significantly the period of imprisonment that I intend to impose upon you.

24Your counsel also relied upon a report from a psychologist, namely Pamela Matthews, dated 4 February 2016, in which she identifies you as presenting with considerable psycho-social stress related to family expectations which were expressed through mixed depressive and anxiety symptoms.  She notes that you report an emergency admission to hospital in 2013 with a panic attack, and that your trichotillomania is exacerbated by stress.  It is her view that you would meet the DSM 5 diagnostic criteria for adjustment disorder with mixed disturbances of mood, emotions and behaviour and that that condition is chronic one. 

25She opines that a period in custody is likely to result in an increase in your sense of stress and an exacerbation of your depression, anxiety and trichotillomania.  I take that fact into account and that that will also make your time in custody more burdensome. 

26It is apparent from the history of you being born in Saudi Arabia and growing up with a Lebanese family background and your coming to Australia at the age of 21 and your ability to undergo study and to work in Australia since 2006 indicates that you are more than capable of holding down steady work, indeed your job with Metcash, from what I was told, was paying you $800 take home pay a week, and your wife indeed was working in a job at Metcash, at least for a significant period between 2013 and 2016, with a take home pay of about $1000 a week. 

27All of that underscores the fact that you are capable of working, leading an honest life and that your prospects of rehabilitation would seem to be good.  However it also underscores the proposition that this was an offence, or this was conduct that was motivated by greed, rather than a need. 

28It was submitted on your behalf in accepting that proposition that your second marriage gave rise to a situation where you spent more money and that you were living beyond your means.  It was submitted that, you as the eldest son, losing your father in 2013, was a significant event in your life and added to the stress and anxiety and other psychological issues that were identified by Ms Matthews.

29None of that, however, provides any answer to your offending conduct and there is no excuse at all in circumstances where you had a very substantial warning shot from the court appearance in August of 2011 in respect of similar conduct. 

30It was submitted on your behalf that you were "a poster boy" for a sentence involving a Community Correction Order.  I do not accept that.  In my judgment this offending is far too serious to encompass a sentence that allows for a Community Correction Order and the need for just punishment for denunciation, for individual deterrence and general deterrence demands a substantial  term of imprisonment, albeit modified by the early plea, the assistance you provided, the risks of deportation and the impact of that on your capacity to deal with your term of imprisonment and your psychological conditions, and your prospects of rehabilitation. 

31It was submitted that this was not the most grave crime, that is submitted on your behalf. That is true, but it is nevertheless, very serious offending conduct and one which leaves me no alternative, in my judgment, but to impose a substantial term of imprisonment. 

32I am now ready to impose sentence upon you.  Would you please stand.

33For the offence of obtaining property by deception, I convict you and sentence you to imprisonment for a period of 27 months.  I order that you serve a period of 18 months before you become eligible for parole.  But for your plea of guilty, I would have sentenced you to 36 months imprisonment with a non-parole period of 24 months. 

34I order that you submit to, or provide a forensic sample by the scraping from the inside of your mouth.  You will be approached by an authorised officer to provide a sample of DNA in that way.  If you comply with that request, then that will be the end of the matter.  If however, you fail to comply with that request, the officer will be authorised to take blood and may use reasonable force to obtain that sample.  I am sure you will not put the officer to that trouble.  I also make the forfeiture order in the terms of the draft with which I have been provided. 

35Are there any other orders I need make?

36MR PICKERING:   Just pre-sentence detention, Your Honour, which is 14 days.

37HIS HONOUR:  Yes.  I declare 14 days pre-sentence detention as time to be reckoned as served on the sentence that I have imposed, and deducted administratively from the sentence you will actually have to serve, and I order that that fact be noted in the records of the court.  Thank you.

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