Director of Public Prosecutions v Isagbah
[2020] VCC 435
•15 April 2020
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR 19-01829
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHINASA ISAGBAH |
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| JUDGE: | HER HONOUR JUDGE CANNON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 27 February 2020 |
| DATE OF SENTENCE: | 15 April 2020 |
| CASE MAY BE CITED AS: | DPP v Isagbah |
| MEDIUM NEUTRAL CITATION: | [2020] VCC 435 |
REASONS FOR SENTENCE
---Subject: CRIMINAL LAW
Catchwords: Sentence – Pleas of guilty – Negligently dealing with proceeds of crime – Significant sums of money – Symptoms of depression
Sentence:Without conviction sentenced to Community Corrections Order – Duration 18 months with unpaid community work and mental health assessment and treatment condition – s.6 AAA Sentencing Act 1991 declaration
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr. P. Pickering | Office of Public Prosecutions |
| For the Accused | Mr. P. Kounnas | Aitken Partner |
HER HONOUR:
1Chinasa Isagbah, you have pleaded guilty to one charge of negligently dealing with the proceeds of crime, which has a maximum penalty of 5 years imprisonment.
2I must take into account the maximum penalty when sentencing you as this reflects the seriousness with which Parliament regards this offence.
3I was told by the Prosecution that you are 23 years old, but I understand that you were 21 at the time of offending. You are a Nigerian national who is in Australia on a student Visa.
4The complainant is a Nicholaas Akkerman, a retired doctor.
5On 1 December 2017, Dr Akkerman attended an auction for a property for sale in New South Wales. He successfully bid on the property at the auction, purchasing it for $960,000.
6The settlement date for the sale was 16 January 2018, with Dr Akkerman paying a deposit of $80,000 to the agent.
7Mr Akkerman engaged Megan Middleton Conveyancing (MM Conveyancing) to conduct the transaction. As he was only able to make daily transfers of $100,000 from his Commonwealth Bank account, he intended to transfer the total amount of the purchase price in instalments of $100,000 per day to MM Conveyancing.
8MM Conveyancing set up a Property Exchange Australia account (PEXA) to enable the transaction to take place over the Christmas period when their office was closed.
9Dr Akkerman made the first payment to the PEXA account on 2 January 2018.
10On the same day, he received an email purporting to be from MM Conveyancing stating that the PEXA account was undergoing auditing and to pay the next instalment into a separate account instead, being Westpac account BSB 733161 a/c no 568279.
11In accordance with this direction, Mr Akkerman made three payments of $100,000 on 3, 4 and 5 January paying into this account.
12On 5 January 2018, Dr Akkerman received a further email purporting to be from MM Conveyancing stating that the Westpac account was also undergoing auditing and that money should be paid into a third account. This account was ANZ account BSB 014538 Account No. 298788119.
13In accordance with these instructions, Dr Akkerman attempted to transfer the next instalment of $100,000 to the ANZ account but was contacted by his bank and was told it was a scam. He was then informed that the transfers on 3,4 and 5 January 2018 were fraudulent and that only the first transfer on 2 January 2018 was not.
14Police investigations showed that the Westpac account previously referred to was held in your name and had been opened with your Nigerian passport.
15Police obtained records from the Westpac Bank which showed that the three instalments of $100,000 were paid by Dr Akkerman on 3, 4 and 5 January were paid into your account. Money was then transferred to a second Westpac account, again held by you.
16The records showed that the following payments were made to international bank accounts by you and could not be recovered:
173 January - $90,000
184 January - $5000 and $80,000
195 January - $12,000 and $10,000
208 January - $90,000
21You also made a number of purchases using funds in your account.
22As a result of the notification of fraudulent activity, the Westpac bank closed your two accounts, which had a total balance of $94,983.41 at the time of closure. This was transferred back to the victim’s account.
23The balance of $205,016.59 has not been recovered.
SEARCH AND INTERVIEW:
24Police executed a search warrant at your home in Rockbank on 6 February 2019, seizing property including your mobile phone and Nigerian passport.
25Your phone was analysed and found to have a number of conversations with a person called Kalu regarding this fraud and other potential frauds.
26You were interviewed by police in a tape-recorded record of interview. You said that:
27You were contacted by a family friend in December 2017 who wanted to put money in your account which he was receiving from a client (Qs.25-31);
28He asked you to transfer money to China, India and Uruguay (Qs.35);
29You were told you could use some of the money for your school fees (Qs.41-44);
30You tried to call Kalu via WhatsApp when the transactions were said to be fraudulent but could not contact him (Qs.47, 77, 184-186);
31You said that this person's name was Kalu who was the family friend of whom you had spoken and that he worked for the Diamond Bank PLC in Nigeria (Qs.48-60, 188);
32You spent some money paid into your account for clothes and bicycles (Qs.78-83); and
33You said you separated the money into your second Westpac account, so it didn’t get mixed up (Qs.152-165)
34Ms Isagbah, your offending is serious and is deserving of a punishment which is just, in all of the circumstances and your conduct must be appropriately denounced. By your plea of guilty to the charge before me, you have admitted to (by reference to the relevant parts of the explanatory memorandum relied upon by the Crown at the plea[1]), you have admitted to consciously and voluntarily dealing with the victim’s money which had been fraudulently extracted from him by Kalu or whoever it was who sent the false emails to him, and your dealing with this money involved such a great falling short of the standard of care which a reasonable person would have exercised and such a high risk that the money would be used as an instrument of crime that your conduct is deserving of criminal punishment.
[1] Crimes (Money Laundering) Bill Explanatory Memorandum p.5
35You were prepared to deal with significant sums of money, apparently on the say-so of this person, Kalu, for your own purposes as well as sending a large part of it overseas. Your Counsel said that you were overborne by your husband in using some of this money to purchase two bicycles and some clothing. There is no mention of this aspect to the police, however. Your Counsel said that you were still afraid of your husband and his threat of divorcing you at the time that you spoke to police which is why you didn’t mention this aspect. He also said that your husband had pressured you to buy two bikes for himself. I have had some difficulty in accepting these submissions, especially when one looks at some of the items that are listed as debits in your bank account. I must say that the idea that Kalu said that you could spend a third party’s money on yourself or school fees, without you being more knowingly involved in this scam, borders on non-sensical in my view, but I will put these observations to one side and I will deal with you on the basis of the offence to which you pleaded guilty and which the Crown has accepted.
36However, I do not accept that the two bicycles were both bought for your husband, and I do not accept that a number of items that appear in your bank account and that the clothing that you told the police about were bought solely for your husband. I am of the view that a number of items that you bought were for you.
37I take into account your background:
38You were educated in Nigeria. I was told that you and your family were engaged in missionary work, helping displaced people to find refuge. Your work exposed you to danger, culminating in your family home being destroyed by terrorists when you were only six years old. You and your family moved several times in order to avoid civil unrest within Nigeria.
39You enjoyed a close relationship with your siblings and parents. Sadly, your father died in 2013 and this impacted negatively on your mental health. You suffered symptoms of depression and experienced some hallucinations. You spent some time with your aunt in a bid to recover.
40I was also told that you qualified to undertake a medical degree in Nigeria, but your family were unable to afford the bribes which were also required in order to pursue this. Your family decided it would be best for you to travel to Australia to study here with a view to you returning to Nigeria to work once you were qualified. I understand that this is what you wanted to do and have completed a diploma in community services. If able to, you intend to undertake a Bachelor degree in this area then return home to work with youth in your country.
41You attended the Lutheran Church in Nigeria, but you are a member of a different Church here. A character reference was provided by the pastor of this church.
42I was told that you married in order to make it easier to migrate to Australia, which is a rather frank and somewhat concerning admission. Your Counsel elaborated that your marriage made your migration more socially acceptable.
43Your marriage was not a happy one, and you were the main bread winner. When you lost a second job, there was pressure on you to pay the bills, and I was told that you and your husband had ongoing disputes in respect of his desire for luxury items. You took up some ‘alternative employment’, as your counsel put it, which your husband thoroughly disapproved of and which led to you being subjected to domestic violence. I understand that it was in this context that the offending took place, although I have already made some remarks about the likely benefactor of some of the items which you purchased.
44I was told that Kalu was well known to your family and was trusted by them and by you. I was told that he worked for a bank and was a financial adviser- that he had helped you in setting up bank accounts in the past.
45While you did not use some of the funds to enjoy a lavish lifestyle, items such as bikes, sports clothing and hair extensions could hardly be seen as staples.
46I was told that you and your husband separated in 2018 and that the idea of divorce carried a great deal of stigma for you and yours, such that this threat to divorce you from time to time was held over your head. Since separating however, your family have been most supportive of you. You currently live in a share house and you are doing some work through Yooralla with some physically and mentally challenged children. I was told that some of this work takes you into the homes of your clients, and that Yooralla does not know about your offending, which concerns me. Having said this, I am most mindful that your offending involved criminal negligence rather than a more serious state of mind.
47In any event, you pleaded guilty at an early stage of proceedings which entitles you to a significant discount in the sentence you would receive as it has saved the witnesses the time and trouble of giving evidence and it has saved the community the time and expense of contested proceedings.
48I accept that you are remorseful and ashamed of your offending, albeit that your bid to impart some blame onto your husband reflects some lacking in full insight and heartfelt response in respect of what you have done and how your offending might well have affected the victim.
Mental health
49In relation to your mental health, I received a letter from Ms Linda Roglic, psychologist, dated 10th April 2020, who advised me that you had been referred to her for psychological assistance by your GP on 8 April last year. She said that you presented with symptoms of depression and that you were distressed, struggling to manage your life. She said that you had been a victim of domestic violence until June the year before, so 2018 rather than 2019 as she said in the letter. Unfortunately, you had only managed to have four sessions with this psychologist including the one on the day that she wrote the letter. You gave an account in respect of your offending which is similar to the one presented on the plea hearing by your barrister.
50I have had regard to the bundle of character references tendered in support of you and in light of these and the fact that this is the first time you have committed a criminal offence, I find that you are of otherwise good character.
51In view of your background, your lack of criminal history or subsequent matters, and your strong work and study ethic, I find that you have strong prospects of rehabilitation and I need only place minimal weight on specific deterrence and protection of the community. Strong weight must attach to general deterrence in a bid to deter others from behaving as you have.
52I was told at the plea hearing that you were feeling anxious about these proceedings and how your future in Australia with your studies might be impacted. However, your Counsel was unable to say that a conviction against your name would negatively impact on your ability to remain here and complete your studies. On any view however, a conviction for an offence is going to negatively impact upon your future more heavily than a non-conviction.
53Mr Pickering submitted that you ought be convicted but that a Community Corrections Order with or without a period of imprisonment was appropriate in your case, or at least within the range. Your counsel submitted that a Community Corrections Order without conviction was appropriate in view of all of the mitigating features in your case.
54You are still a young person and I must do what I can to maximise your rehabilitation. I am concerned about what you have done, but I am also most mindful that your culpability is at the level of criminal negligence rather than behaving intentionally or recklessly.
55I am giving you an opportunity to prove that you are capable of behaving lawfully within the community- everything in your background and present occupation and aspirations indicate that you are capable of this and I hope that you are able to complete your studies and make a worthwhile contribution to your community in Nigeria which is what you plan to do.
56In all of the relevant circumstances of your case, I am persuaded that there is little utility in imposing a conviction against your name. Therefore, I propose to place you on a Community Corrections Order which is designed to appropriately punish you but also assist you in remaining crime-free. Make no mistake- if you fail to take full advantage of this order, by committing further offences or not complying with the conditions of it, I will have little hesitation in convicting you in the future and you might well be facing a sentence of imprisonment. Do you understand that Ms Isagbah?
57OFFENDER: Yes, Your Honour.
58HER HONOUR: Community Correctional Services have recommended that you only undertake unpaid community work and that further intervention may well be counterproductive. However, I agree with the learned prosecutor. I am of the view that it is necessary that you receive some supervision and mental health treatment, as directed, and ask that Community Correctional Services carefully monitor you in respect of your mental health. I now proceed to sentence you.
Please stand up:
59In respect of the charge before me I intend to place you on a Community Corrections Order without conviction.
60The terms of the Community Corrections Order that I propose are as follows:
61The period for which the order will operate is 18 months.
62The mandatory terms that apply to all Community Correction Orders are:
63You must not commit another offence for which you could be imprisoned during the time that the order is in force;
64You must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011;
65You must report to, and receive visits from, the Secretary to the Department of Justice (or delegate);
66You must report to the Melton Community Correctional Services Centre at 4pm within two clear working days of today 18 March 2020.
67You must let a Community Corrections officer know within two clear working days of you changing your address or job;
68You must not leave Victoria without first obtaining permission to do so from the Secretary to the Department of Justice (or his or her delegate);
69You must obey all lawful instructions from and directions of the Secretary to the Department of Justice (or his or her delegate).
70The conditions that apply in addition to the mandatory terms listed are:-
Community Work
71You must undergo 100 hours unpaid community work within 18 months. Up to 50 hours of this condition may be fulfilled by the successful completion of the equivalent period in respect of any of the treatment and rehabilitation conditions concerning your mental health.
Supervision
72You must also be under the supervision of a Community Correctional Officer for a period of 18 months.
Treatment and Rehabilitation
73And further, you must undergo mental health assessment and treatment including (but not limited to) mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility, in accordance with any directions given by the Regional Manager.
74Now do you consent to the terms and conditions of the order?
75OFFENDER: I do.
76HER HONOUR: Did you say I do?
77OFFENDER: I do.
78HER HONOUR: Yes, thank you.
79I should tell you that if you do not comply with all of the requirements of this order then you will face breach proceedings before me. You will be sentenced in relation to the breach and you will be re-sentenced in relation to the charges, or you may be at least, in which case you may well be sentenced to a period of imprisonment. As I said, I would regard a breach of the Community Corrections Order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.
80Do you understand this?
81OFFENDER: Yes, I do.
82HER HONOUR: Do you still consent to the making of the order?
83OFFENDER: Yes, I do.
84HER HONOUR: Therefore, in relation to the charges, you are sentenced without conviction to a Community Corrections Order in the terms and conditions that I have just set out. If not for your pleas of guilty, I would have convicted you of the offence and sentenced you to a period of six months' imprisonment in conjunction with a lengthier Community Corrections Order. Now, the Community Corrections Order I have just announced will be sent to you. I would say it would be sent to the Melton Community Correctional Services Centre for you to sign when you first attend there for your first appointment. All right?
85OFFENDER: Yes.
86HER HONOUR: Very well. Thank you. Now, counsel is there anything arising from the sentencing remarks.
87MR PICKERING: No.
88MR KOUNNAS: No, Your Honour.
89HER HONOUR: Very well. Thank you. We will now disconnect transmission from everyone, and Ms Isagbah, before I go, you must attend Community Corrections as I say within the next two days, so please make sure you get there at the latest, by 4 pm on Friday, but it might be best if you get there tomorrow. Okay?
90OFFENDER: Yes, Your Honour.
91HER HONOUR: Well done. All right, thank you. We will now cut the transmission. Adjourn. Thank you.
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