Director of Public Prosecutions v Issa

[2017] VCC 919

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR-16-00784

THE QUEEN

v

FADI ISSA

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JUDGE:	HIS HONOUR JUDGE MONTGOMERY
WHERE HELD:	Melbourne
DATE OF HEARING:	9 February 2017
DATE OF SENTENCE:	29 June 2017
CASE MAY BE CITED AS:	DPP v Issa
MEDIUM NEUTRAL CITATION:	[2017] VCC 919

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

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth Director of Public Prosecutions	Mr J. Foley
For the Offender	Mr L. Richter

1HIS HONOUR:  Mr Issa, can you stand up please, sir. 

2Fadi Issa, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity to the amount of $85,404 and one charge of attempting to dishonestly obtain a financial advantage by deception from a Commonwealth entity, the amount attempted to be obtained was $424,246.  You have no other criminal history and there are no matters outstanding I am told. 

3You have consented to the signing of a reparation order which I will sign at the end of these reasons.  

4The facts of the case are set out in the prosecution summary (Exhibit 1).  I will briefly refer to the facts but to place the sentences in their full factual context any reader of these reasons should refer to Exhibit 1.

5Briefly stated, you obtained $85,404 in GST refunds to which you were not entitled.  You attempted to obtain $424,246, again a sum to which you were not entitled.  Your BAS claims were deceptive as did you not incur business expenses or purchases of the sums claimed including the GST components claimed.  You knew you were not entitled to the GST funds claimed. 

6You were charged on 27 August 2015 and after a short committal hearing on 6 May you were committed to stand trial after entering pleas of not guilty to 88 charges.  Discussions between counsel ensued thereafter and the matter was resolved. 

7In mitigation your counsel filed written submissions and supplemented them orally.  He tendered two references which I have read and a medical report.  I have taken all of their contents into account. 

8At the time of the offending you were aged 30.  You are now aged 37.  In the interim you have been caring for your two parents on a carer's pension.  Your intention is to go back into business. 

9As I have already commented, you have not re‑offended and have no other charges outstanding. 

10Mr Richter, your counsel, submitted in mitigation I should take into account; your plea of guilty, that the offending occurred at a time of personal and financial turmoil and that you were a poor business administrator.  The duration of the offending was limited, he submitted. 

11You are currently repaying a loan that you took out on your parents' home in the sum of some $400,000 to $500,000, that loan you took out to sustain a line of credit.  Your working life has been in the areas of marketing and business consultancy.  You currently have a relationship with Laura Bordonaro who provided a reference. 

12Your brother's reference set out your involvement in the community and I have taken that into account.  Mr Richter submitted that the delay in this matter is a significant one.  The prosecutor said it was caused by lack of resources and the need for an extensive investigation.  In my view the delay here is clearly unacceptable and that but for that delay the sentence imposed would be significantly more than what I am about to announce. 

13Mr Richter submitted that you have used that delay in a positive fashion and have rehabilitated yourself.  He also submitted that you have been affected by the charges hanging over your head for a substantial period of time.  I accept that delay is a significant sentencing factor here and agree with both of his submissions on this point. 

14As I observed during the plea such a delay is unacceptable and waters down the general deterrence effect of any sentence imposed. 

15In 2011 you were declared bankrupt but are now discharged.  Mr Richter submitted that you have shown remorse by your plea and as expressed to your brother as recounted in his reference.  I accept this.  He submitted that you have good prospects of rehabilitation.  He submitted that it was open to me to impose a sentence other than one of an immediate term of imprisonment.  The prosecutor submitted that such a course was not open. 

16In sentencing you I take into account the matters listed in s.16A(1) and (2) of the Commonwealth Crimes Act. 

17I may only impose a sentence of imprisonment if I am satisfied that it is the only appropriate sentence pursuant to s.17A of the Crimes Act. I have taken into account all of the submissions made and I have considered the tables and cases presented when I consider the sentencing principle of current sentencing practices. I have looked at that the information in the light of the recent edicts of the superior courts on this topic.

18General deterrence is obviously an important sentencing consideration here, although its effect is moderated by the delay.  The prosecutor submitted that specific deterrence was not as large a sentencing consideration, and I accept that.  I do so on the basis of the fact that you have no other criminal history and you have demonstrated good conduct since committing these offences. 

19This is serious offending in that this type of offending places a burden on the whole of the community.  The tax system relies on trust and you have breached that trust here.  I am satisfied that you sought financial gain from your behaviour.  This is self‑evident upon a consideration of the facts. 

20As I have said, I have taken into account your plea of guilty as an acceptance of responsibility and remorse by you.  You have saved the court the time and expense of a jury trial.  I have taken delay into account in the way that I have already stated.  I have taken into account all the other matters including your lack of other criminal history. 

21It is difficult to assess your prospects of rehabilitation but considering the material here I am satisfied that you have good prospects of rehabilitation. 

22The submission is made that I can deal with you in a manner other than by way of an immediate custodial sentence.  I have carefully considered that submission, however, I reject it on the basis that in this type of offending general deterrence is the pre‑eminent sentencing consideration and the offending here is serious.  The moneys attempted to be obtained in Charge 2 are very substantial amounts of money. 

23Taking into account all of those matters I sentence you as follows:

24On Charge 1 I sentence you to a term of imprisonment of nine months with a starting date of today. 

25On Charge 2 I sentence you to a term of imprisonment of 12 months with a starting date of today, thereafter to be released on a recognizance order for two years and the sum is fixed at $500. 

26I declare pursuant to s.6AAA of the Sentencing Act that but for your plea of guilty you would have received a sentence in the order of five years with a non‑parole period of three.

27I sign a reparation order in the terms of the order that has been prepared for me.  The recognizance order has to be prepared. 

28Are there any other matters I need to consider? 

29MR FOLEY:  No, Your Honour.

30HIS HONOUR:  If you could prepare that order.  You may sit down for the moment, Mr Issa.

31MR RICHTER:  Can I just ask Your Honour to just repeat, I think I missed a detail, Your Honour's order on Charge 2.

32HIS HONOUR:  Charge 2? 

33MR RICHTER:  Yes.  Yes, just for my own understanding.  I think I understand the gist of it. 

34HIS HONOUR:  It was a period of 12 months with a starting date of today.

35MR RICHTER:  Yes.

36HIS HONOUR:  Which makes a total effective sentence of 12 months.

37MR RICHTER:  Thank you, Your Honour.

38HIS HONOUR:  But on Charge 2 thereafter upon release to be placed on a recognizance order for two years in the sum of $500.  I can't do that? 

39MR RICHTER:  I don't think so.

40HIS HONOUR:  Why not? 

41MR RICHTER:  Because I think what you are effectively doing is making a sentence of imprisonment that's not part ‑ all of which is to be served and then ordering a recognizance release order which the time to be served would be expunged by the 12 months.  I think if Your Honour wished to have him, I will be corrected by my learned friend if I'm wrong, but I think to achieve that Your Honour would need to do something along the lines, although I'm not suggesting that this is exactly what Your Honour should do, but something along the lines of sentencing him to, for example, 18 months or 24 months with all except the first 12 months to be the subject of a recognizance release order.

42HIS HONOUR:  I don't believe that 18 or 24 months is appropriate term of imprisonment.

43MR RICHTER:  No.

44HIS HONOUR:  For the purposes of ‑ what's the Crown say about this, is Mr Richter correct? 

45MR FOLEY:  I don't believe so, Your Honour.  I believe that the recognizance commences once the offender is released from custody.

46MR RICHTER:  But Your Honour has ordered the sentence to commence from today.

47HIS HONOUR:  That's correct.

48MR RICHTER:  So - - -

49HIS HONOUR:  Well, I can make the recognizance order on Charge 1 then, does that overcome it? 

50MR RICHTER:  No, I think we would have the same problem.

51HIS HONOUR:  Let me just go to the Crown written submissions.

52MR RICHTER:  The way I would look at it is like this, Your Honour, if I could be of assistance, just taking that example again.

53HIS HONOUR:  Let me just find the Act.

54MR RICHTER:  Absolutely. 

55HIS HONOUR:  Section 19A would seem to be the relevant section.  It reads, "When a court must fix a recognizance release order a person is convicted of a Federal offence of two or more Federal offences at the same sitting and the court imposes on the person a Federal sentence that does not exceed in aggregate three years and at the time the sentence or sentences are imposed the person is not already serving or subject to a Federal sentence the court must make a single" ‑ so I should have made it a single recognizance order ‑ "in respect of both of them and must not fix a non‑parole period". 

56MR RICHTER:  Yes.  So, but, the issue is this, and for the sake of clarity I'm going to slip into State parlance just to draw the analogy that I'm trying to draw.  If Your Honour sentenced somebody to 12 months' imprisonment and suspended six of them they would serve six months and they would have six months hanging over their head for, let's say two years.  What Your Honour has done here is, Your Honour has commenced both sentences today, so he would concurrently for nine months serve both sentences and then for three months only serve the other sentence.

57HIS HONOUR:  That's right.

58MR RICHTER:  Then he is to be released on a recognizance release order.  Let me rhetorically ask the question; what then hangs over his head? 

59HIS HONOUR:  The release order, if he breaches that he comes back before me on a breach.

60MR RICHTER:  So only the $500 surety, because ordinarily when someone breaches a release order they would be required to serve the unserved portion of their prison sentence.

61HIS HONOUR:  Well, let's go ‑ ‑ ‑

62MR RICHTER:  But in this case there would be no unserved portion.

63HIS HONOUR:  ‑ ‑ ‑ to, isn't there a Commonwealth offence of breaching a recognizance order? 

64MR FOLEY:  Your Honour, I believe my learned friend is correct in making that submission.

65HIS HONOUR:  So how do I get around it, bearing in mind what I want to do.

66MR RICHTER:  I have, there are a couple of suggestions I could make.  The most beneficial to me plainly to Mr Issa would be to order his release after the nine months, in which case the extra three months would hang over his head.  Option two would be that Your Honour could make something in the nature of an 18 month or a two year sentence of imprisonment.

67HIS HONOUR:  I don't think that's appropriate.

68MR RICHTER:  But if, what Your Honour could do is on Charge 2 let's say make an 18 month order of imprisonment commencing today but all of which is to be, for him to be released immediately upon that.  I'm not 100 per cent sure that that's okay, but that would achieve the ends if that were okay.

69HIS HONOUR:  If I make, on Charge 2, if I make a sentence of, for example, 15 months with him to be released on a recognizance after 12 months.

70MR RICHTER:  Yes.

71MR FOLEY:  That would work, Your Honour.

72MR RICHTER:  That would achieve what Your Honour, roughly, an approximation of what I think Your Honour is seeking to achieve.

73HIS HONOUR:  All right.  As I have said, the way I have assessed the case, mainly because of the delay, I don't believe 18 or 24 months is the appropriate sentence.

74MR RICHTER:  No, with respect I agree obviously.

75HIS HONOUR:  15 is another three, so it is not, it is sort of within the range of what I was given initially, and it is a matter for him.  I can't imagine he is going to re‑offend, he is not going to be that stupid, surely? 

76MR RICHTER:  No, he has not for six and a half years.

77HIS HONOUR:  All right.  So I will redo that, thank you both.  I can only say that every time I grapple with the Commonwealth Sentencing Act it confirms my decision not to proceed in this job beyond May of next year.

78MR RICHTER:  Leave it to us, Your Honour.

79HIS HONOUR:  So thank you both for that.  Nine months on Charge 1, 15 months on Charge 2, to be released after 12 months on a recognizance for a period of two years in the sum of $500.  What that means, Mr Issa, is that you have 12 months to serve.  You are then put on a recognizance order, which is like a bond, for two years.  If you don't re‑offend you don't have to worry about it.  If you do you have got three months hanging over your head.  Understand that? 

80OFFENDER:  Yes.

81HIS HONOUR:  Okay.  We just have to prepare that order.  Sit down for the moment.  Thank you.  Any other matters I need to attend to? 

82COUNSEL:  No, Your Honour.

83HIS HONOUR:  Take Mr Issa out, thank you. 

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