Director of Public Prosecutions v Mussillon
[2023] ACTSC 75
•11 April 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Mussillon |
Citation: | [2023] ACTSC 75 |
Hearing Date: | 29 March 2023 |
DecisionDate: | 11 April 2023 |
Before: | Mossop J |
Decision: | See [58] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – plea of guilty to charges of money laundering, tampering with evidence, perjury, making false evidence, general dishonesty and obtaining property by deception – offender did not stand to benefit significantly from money laundering – offender diagnosed with autism and PTSD – sentence of immediate custodial term imposed to be suspended after five months upon entering into a good behaviour order |
Legislation Cited: | Corrections Management Act 2007 (ACT), s 9 Crimes (Sentencing) Act 2005 (ACT), ss 11, 12, 12A, 29(1)(b), 33(1)(c), 35, 36 Criminal Code Act 1995 (Cth), s 134.1(1) |
Cases Cited: | DPP v Taylor [2023] ACTSC 39 R v Massey (No 1) [2020] ACTSC 256 |
Parties: | Director of Public Prosecutions James Mussillon ( Offender) |
Representation: | Counsel K Lee (DPP) M Johnston SC and S Howell ( Offender) |
| Solicitors Director of Public Prosecutions Hugo Law Group ( Offender) | |
File Number: | SCC 78 of 2022 |
MOSSOP J:
Introduction
On 24 March 2022, the offender, James Mussillon, pleaded guilty in the Magistrates Court to the following offences:
(a)One count of money laundering (CC2021/8474) contrary to s 114B of the Crimes Act 1900 (ACT). The maximum penalty is 1000 penalty units, 10 years’ imprisonment or both.
(b)One count of perjury (CC2021/8464) contrary to s 703(1) of the Criminal Code 2002 (ACT). The maximum penalty is 700 penalty units, 7 years’ imprisonment or both.
(c)One count of making false evidence with the intention of influencing the outcome of a legal proceeding (CC2021/8467) contrary to s 705(1) of the Criminal Code 2002 (ACT). The maximum penalty is 700 penalty units, 7 years’ imprisonment or both.
(d)One count of general dishonesty influencing a public official (CC2021/8469) contrary to s 333(7) of the Criminal Code 2002 (ACT). The maximum penalty is 500 penalty units, 5 years’ imprisonment or both.
(e)One count of dishonestly obtaining property by deception (CC2021/11032) contrary to s 134.1(1) of the Criminal Code Act 1995 (Cth). The maximum penalty is 10 years’ imprisonment.
Facts
The facts are agreed and are set out in a statement of facts dated 24 March 2023. As the Agreed Statement of Facts is extensive it is appropriate to only provide a relatively short statement of them, focused on the conduct relating to each of the charged offences. This summary is drawn, in large part, from the helpful summary of the agreed facts in the written submissions provided by the offender.
Money laundering
The offender is a chef and restauranteur. He has been so for over 20 years. At the time of the offending he operated the Water’s Edge restaurant in Parkes and the Courgette restaurant in the Canberra central business district.
In around 2015 he formed a friendship with Mohammed Al-Mofathel. Mr Al-Mofathel was involved in cannabis trafficking and other criminal activity. The offender and Mr Al-Mofathel established a method of laundering money derived by Mr Al-Mofathel from his criminal activities. This involved Mr Al-Mofathel paying money to the offender and the offender then repaying that money to Mr Al-Mofathel under the pretence that it was a payment of wages. This charge relates to conduct between 18 March 2016 and 3 August 2021:
(a)Between 19 March 2016 and 17 February 2017 the offender transferred weekly amounts of $3,000 to Mr Al-Mofathel’s bank account. Each transfer was labelled “Boss pay” and the total amount was $147,000.
(b)Between 19 May 2017 and 23 November 2017 the offender transferred weekly amounts of $3,000 to Mr Al-Mofathel’s bank account. Each of these transfers was labelled “courgette pay” and the total amount was $81,000.
(c)Between 4 December 2017 and 5 January 2018 the offender transferred a further $9,000 to Mr Al-Mofathel’s bank account.
(d)Between 21 April 2020 and 3 August 2021, the offender transferred $113,228 labelled “Courgette Pay” to Mr Al-Mofathel’s bank account.
These amounts totalled $350,228.
There is a further amount that forms part of this charge. This is an amount of between $170,000 and $175,000. On 27 January 2021 several police went in unmarked police vehicles to locations near Mr Al-Mofathel’s father’s house. Mr Al-Mofathel called the offender and asked him to pick up some money that was left in a car belonging to “Ali” which was at the front of Mr Al-Mofathel’s father’s house. Mr Al-Mofathel was concerned that the police would “grab that money”. The offender offered to collect the money and, after collecting the keys from Mr Al-Mofathel and Ali at some local shops, the offender collected the money and put it in a safe overnight.
The offender was reckless about the fact that the money the subject of this charge was derived or realised from unlawful activity.
There were other financial dealings between the offender and Mr Al-Mofathel, but these do not form part of the money laundering charge.
Perjury
In June 2020 Mr Al-Mofathel was facing charges of strangling or choking a person until rendered insensible or unconscious as well as unlawfully confining a person. He had been remanded in custody. On 10 June 2020 Mr Al-Mofathel applied for bail in the Magistrates Court. During the proceedings the offender gave evidence in support of Mr Al-Mofathel’s application. The offender said:
(a)that Mr Al-Mofathel was the operations manager of the Courgette restaurant;
(b)he had been employed for six and a half years;
(c)he worked two split shifts five days a week for between 40 and 50 hours; and
(d)his duties involved serving, bringing in product and day-to-day running of the restaurant.
10. None of these things were true.
11. He also falsely stated that he (the offender) was the owner of a Lamborghini which in fact was owned by Mr Al-Mofathel and said that he sometimes let Mr Al-Mofathel use it.
12. The transcript of the evidence discloses that it was given in gushing terms. That is illustrated by the following passage:
Counsel for Mr Al-Mofathel: And notwithstanding the fact that you have read that [the statement of facts], you are still willing to allow the defendant to return to work with you if granted bail?---Yes, because I know his character. At work he demonstrates he is loyal and respectful. All I can do is go on the character that I know and how he presents himself in front of my customers, in front of me, and he has always been loyal, respectful and turned up to work. I’m not getting into behind walls but I just know what he presents me. He has always been a good employee. I have no reason not to re-employ him. I believe in fairness and, you know, he’s done nothing. He’s got no strikes against me at work so I have got nothing to outline with him.
All right. If it would give her Honour some confidence about the likelihood of the defendant abiding by any bail conditions that her Honour might consider would you be willing to provide a substantial [surety]?---Yes. I’m happy to put up $50,000 because I believe in him. I respect him and he’s always done good by me. I believe that people, you know, there is no reason---
Her Honour: You understand that if he breached his bail you could lose that money?---I’m happy to lose that because I believe in him. I know him. He will work 50 hours.
Well, I wouldn’t be happy to lose $50,000?---Yes, but I worked side by side with him for six and a half years.
13. The decision on the bail application was adjourned until 12 June 2020 on which date the magistrate granted Mr Al-Mofathel bail with strict conditions. She referred to the fact that the decision had caused her “great angst” and the decision was on “the knife edge and … could have gone either way”. In her reasons the magistrate referred to the evidence of the offender and noted that he was “very keen to have the defendant back to work and thinks highly of the defendant, sufficiently so that he was willing to put up $50,000 as [surety]. That speaks in favour of balancing the risks involved in determining whether the defendant will breach his bail in my view.”
Obtaining property by deception
14. Between 5 May 2020 and 19 April 2021 the offender’s accountant lodged 11 applications for the JobKeeper payment with the Australian Taxation Office. These were applications for payment of the JobKeeper allowance provided by the Australian Government during the COVID-19 pandemic. Each of these applications listed Mr Al-Mofathel as an eligible employee. The result of these claims was that the offender received JobKeeper payments for Mr Al-Mofathel to which he was not entitled. It is this which gives rise to the count of obtaining property by deception. The payments received by this deception amounted to $31,900.
15. That is a contravention of s 134.1(1) of the Criminal Code Act1995 (Cth) which penalises dishonestly obtaining by a deception property belonging to another with the intention of permanently depriving the other person of the property if the property belongs to a Commonwealth entity.
General dishonesty
16. In March 2021 police were conducting surveillance of a restaurant in the suburb of Dickson and on 3 March 2021 arrested a Mr Wing Hei Leung. Police subsequently found $153,600 cash in Mr Leung’s home. The money belonged to Mr Al-Mofathel. Mr Leung told police that $100,000 was borrowed from a friend “James” who owned a French restaurant on Marcus Clarke Street. On 4 March 2021 Mr Leung told police he had borrowed the money to pay medical bills for his sister-in-law who was being treated for cancer in Tasmania.
17. The same day Mr Al-Mofathel asked the offender to meet him and they did meet.
18. Police, who had been listening to Mr Al-Mofathel’s telephone calls, approached the offender and asked him to provide a statement in relation to what they had been told by Mr Leung. That evening the offender went to Woden Police Station and was interviewed. He told police that he had lent $100,000 to a person named “Duncan” who told him that he needed the money because his sister was sick. He said that the agreement was for Duncan to repay the money together with an additional $25,000 by the end of March 2021 and that the agreement was documented.
19. It is this conduct which contravened s 333(7) of the Criminal Code 2002 (ACT), which provides that a person commits an offence if the person does something with the intention of dishonestly influencing a public official in the exercise of the official’s duty as a public official. That which is alleged and admitted is the fabrication and dissemination of false information relating to the loan to Mr Leung.
Make false evidence
20. On 5 March 2021 police spoke to the offender at his home and asked to see the loan document that the offender had referred to in his interview the previous day. The offender called Mr Al-Mofathel and told him that the police had been to his house and that he needed to get the loan document to them. Mr Al-Mofathel said that he would come and see him. At about 11:30am police met the offender at the Courgette restaurant. The offender took the police to an office, opened the safe and handed police a piece of paper that had been folded several times, the document purporting to be a loan agreement between Duncan Leung and the offender. The document was false and the offender knew it was false.
21. It is this conduct which contravened s 705(1) of the Criminal Code 2002 (ACT) which prohibits the making of false evidence with the intention of influencing the outcome of a legal proceeding.
Objective seriousness
Money laundering
22. The money laundering count is a rolled up count. It covers a large number of transactions over almost five and a half years. It is an ongoing course of conduct consisting of a series of criminal acts of the same or similar character: s 33(1)(c) of the Crimes (Sentencing) Act 2005. The amount laundered was substantial, comprising the payments of “wages” through the business as well as collecting and storing the $170,000-$175,000 in cash. It is the payment of wages that is the more objectively serious part of this offence. The collecting and brief storage of the $170,000-$175,000 was an unsophisticated one-off assistance provided to Mr Al-Mofathel. The payment of “wages” involved using his business structures in order to disguise the source of money received by Mr Al-Mofathel. The primary beneficiary of this course of conduct was Mr Al-Mofathel. While there was a modest benefit likely to accrue from the overstatement of the expenses of the business, that likelihood is insufficient to provide more than a minor part in the offender’s motivation. Any other financial benefit flowing to the offender is not established by the evidence. Given the unlimited nature of the money laundering offence in s 114B of the Crimes Act 1900 (ACT), this offending is in the mid-range of objective seriousness for this offence.
Perjury
23. This offending was directed to an important issue in an important application before the Magistrates Court. The evidence given was ultimately a significant consideration for the Magistrate in what was a finely balanced application for bail. The false statements were detailed and emphatic. The offending is at the upper end of the mid-range of objective seriousness for the offence of perjury.
General dishonesty
24. This offending involved making things up in order to deflect a police investigation and possibly permit Mr Al-Mofathel to recover the money that was being held by Mr Leung. The scope of s 333(7) of the Criminal Code 2002 (ACT) is broad, as dishonestly influencing a Territory public official in the person’s duty as a Territory public official can cover a multitude of sins. Plainly the role of police in investigating crime is a fundamental function of government. However, regard must be had to the range of persons identified in the definition of “territory public official” in s 300 (extending to members of the Legislative Assembly, Ministers, judges and magistrates), which indicates that this conduct falls in the mid-range of objective seriousness for this offence.
Make false evidence
25. This involved the fabrication of a document in order to influence the outcome of proceedings involving Mr Leung. Once again, the circumstances in which s 705(1) of the Criminal Code 2005 (ACT) can be breached are very broad. This offending involved a deliberate fabrication of a document for the purposes of influencing the outcome of the legal proceeding in relation to a substantial quantity of money. It is in the mid-range of objective seriousness for this offence.
Obtain benefit by deception
26. This offending involved a direct benefit to the offender by reason of the receipt of money from the Commonwealth. It was a consequence of following through upon the false premise underlying the bulk of the money-laundering offence. The offence under s 134.1(1) of the Criminal Code Act1995 (Cth) is unlimited in the value of the property obtained. As a result, although the amount obtained was substantial and of benefit to the offender, the offending is at the low end of the mid-range of objective seriousness for this offence.
Subjective circumstances
27. The offender is 51 years old. He was born in Sydney and is the youngest of three children born to his parents. He described his parents in positive terms. His father used alcohol to deal with stress although he denied any abuse in the home. The offender was sexually abused at the age of 12 and stated that he became socially withdrawn after this.
28. He has limited contact with his siblings and his parents are his main source of support. He supports his parents who are ageing by regularly visiting them to provide assistance in Bateman’s Bay, New South Wales. The offender is single with no children.
29. The offender struggled academically at school, however, he enjoyed practical subjects. He left school at the age of 15 to commence an apprenticeship as a chef and has continued to work as a chef since that time. He lived in London from the age of 18 to 21. He moved to Canberra in 1999 to run a restaurant. He has worked in and owned several successful restaurants. He currently works in the Courgette restaurant which he has owned for the past 24 years. He describes his work as his passion.
30. The offender reported that he consumed alcohol socially when he was younger but has not consumed alcohol in the past 20 years. He reported use of cannabis and MDMA between the ages of 18 and 21 with no use since that time. The offender acknowledged illicit substance use within the hospitality industry but said it is not something he gets involved with.
31. The offender receives income from employment and has a small mortgage on a second home at the coast. He reported to the author of the pre-sentence report a history of regular gambling leading up to his arrest. He denied this was related to the current offences. His gambling was regular and with large amounts of money. He described his gambling to the author of the pre-sentence report to be a hobby or social outlet. The offender’s mother reported that she did not believe this to be an addiction.
32. The offender reported that he would socialise with colleagues at the restaurant but does not have many friends outside of work. He reported working up to 70 hours per week and as having little time for recreational activities. He spends time off cooking to support his parents.
33. The offender reported to the author of the pre-sentence report that he had suffered from severe depression and suicidal thoughts during his time in custody and after his release. He has engaged in regular mental health treatment in the community. He believes he has previously been diagnosed with autism and post-traumatic stress disorder (PTSD) following his sexual abuse as a child. The mental health conditions of the offender were dealt with in the evidence of Associate Professor Carroll, a consultant forensic psychiatrist, which is discussed further later in these reasons.
34. The offender reported that he had a “feeling” that there was unlawful activity regarding the co-offender, however, he did not want to ask questions. Once he became aware of the extent of the illegal activity he felt “too far in” and did not know how to extricate himself. He spoke of being in fear of the co-offender, in particular, in custody after being assaulted and in the community after being threatened. The offender attempted to minimise his involvement by reporting that he did not benefit financially. He thought he was helping the co-offender, however, he understood the severity of what he had done and what he had been involved with. The offender accepted responsibility for his actions and reflected that he should have contacted authorities when he first had a feeling that something was going on. He expressed feelings of regret and disgust at enabling the offending and shame for the stress he has caused his family.
35. The author of the pre-sentence report assessed the offender as being at a medium to low risk of general reoffending.
36. The offender was assessed as suitable for a community service work condition, for a good behaviour order with a medium-low level of intervention and suitable for an intensive correction order (ICO).
The offender relied upon the report and oral evidence of Associate Professor Andrew Carroll. One of the inputs to this report was a report of Dr Sally McSwiggan, a consultant neuropsychologist which was also put into evidence. The report of Dr Carroll was based upon examinations of the offender that occurred in June and October 2022. His report outlines his social history and current personal circumstances. It records the results of psychometric testing and the offender’s explanation of his own offending conduct. It also records his attitude towards the offending and his functioning during his period in custody on remand. The doctor concluded that the offender displayed evidence of Autism Spectrum Disorder without an intellectual disability as well as Chronic PTSD arising from the very serious sexual assault which he suffered at the age of 12. Dr Carroll expressed the opinion that the offender displays significant deficits in social competence as a result of these two conditions. Significantly for the purposes of sentencing, Dr Carroll expressed the opinion that “his psychiatric conditions played a substantial contributory role and, more likely than not, are a necessary (albeit not sufficient) explanatory factor for that conduct”. He explained that the psychiatric conditions involved a reduced ability to navigate complex social situations where he feels under pressure from others, understand possible motives of other people and fully appreciate the gravity of offending behaviours. He did not say that the offender was unaware of the criminal wrongfulness of at least some of the conduct. However, he said that, but for his social incompetence, it is unlikely he would have engaged in the offending. Dr Carroll was cross-examined at some length in an attempt to undermine his conclusions about the extent of the causal relationship between the offender’s mental health conditions and his offending but that cross‑examination did not, in my view, undermine the conclusions that he reached.
38. Dr Carroll also gave evidence relevant to the impact of a further period of imprisonment upon the offender. He expressed the opinion that “[the offender’s] social incompetence secondary to autism and PTSD means that he is interpersonally naïve and hence especially vulnerable in the present context both psychologically and in terms of physical safety because of that”. [Redacted].
39. The offender also relies upon a number of references from employees in his restaurants. They demonstrate that within this work environment he is committed to excellence and has provided opportunities and support to young employees to progress their career in the hospitality industry. They also indicate occasions when he has demonstrated his generosity and care for his employees. There is also a letter from the offender’s father which indicates the fear that the offender has of returning to prison, the support that he gives his parents and his personal qualities.
Criminal history
40. The offender has a criminal history in New South Wales. In 1996 the offender committed the offence of malicious damage. In 2016 he committed the offences of intimidating a police officer, failing to leave a premises when required, use of an offensive weapon to prevent lawful detention, stalking or intimidating intending to cause fear of physical harm and assaulting a police officer. These offences all appear to have occurred on the same date in 2016. The offender’s criminal history in the ACT is not of significance.
Plea of guilty
41. The offender pleaded guilty in the Magistrates Court and was committed for sentence to the Supreme Court. He is entitled to a discount under s 35 of the Crimes (Sentencing) Act 2005 (ACT).
Time in custody
42. The offender was arrested on 12 August 2021. He remained in custody until he was granted bail by the Magistrates Court on 24 March 2022. This is 224 days or seven months and 11 days in custody.
[Redacted]
43. [Redacted]
44. [Redacted]
45. [Redacted]
Consideration
46. The offending was serious. At the broadest level it involved substantial sums of money and significant assistance to the criminal purposes of Mr Al-Mofathel. The motivation for the offending remains somewhat unclear. It has not been established that there was an explicable financial motivation. The offender appears to have been entangled with Mr Al‑Mofathel in a way which is not fully disclosed or explained by the evidence. However, the offending clearly arises from that entanglement. Although there were some references in the evidence to the offender fearing Mr Al-Mofathel, the evidence did not provide an adequate foundation for a conclusion on the balance of probabilities that there was any coercion or pressure which led to the offending behaviour. Dr Carroll’s opinion that the offender’s psychiatric conditions were a necessary but not sufficient factor for his conduct reduces his culpability and his suitability as a vehicle for general deterrence to some extent. The extent to which it does so is moderated by the fact that there was incomplete information about his relationship with Mr Al-Mofathel.
47. There is no direct evidence as to the motivation of the offender in perjuring himself so dramatically at the bail hearing for Mr Al-Mofathel. It can be inferred that this arose from his entanglement with Mr Al-Mofathel. However precisely what lead up to the offending has not been disclosed. As pointed out above, the perjuring of himself at the bail hearing was very serious offending which was fundamentally inconsistent with the administration of justice.
48. I accept that the psychiatric conditions identified by Dr Carroll and the assistance to authorities referred to earlier in these reasons mean that imprisonment is likely to be more burdensome upon him than upon an offender without those conditions and carry with it risks of harm that would not otherwise be the case.
49. The offender has only a limited criminal history and is otherwise a person who works hard and, through his business, makes a useful contribution to the community.
50. Mr Leung who was involved in the conduct leading to the charges of make false evidence and the general dishonesty pleaded guilty to a Commonwealth offence of dealing with the proceeds of crime which carried a maximum sentence of three years (as distinct from the Territory money laundering offence faced by the offender in the present case which has a maximum penalty of 10 years’ imprisonment). On that charge he received a sentence of six months’ imprisonment served by intensive correction. He also faced a general dishonesty charge under the same provision as the present offender and received a sentence of nine months’ imprisonment served by intensive correction. Both of the sentences incorporated a discount of 25 percent on account of the plea of guilty. They therefore reflect starting points of eight months and 12 months respectively.
51. I have had regard to the cases summarised in the annexure A to the prosecution sentencing submissions insofar as they indicate the sentencing practice of the court. They are only of general assistance having regard to the particular circumstances of the various offences in the present case.
52. The fundamental contention put on behalf of the offender was that, having regard to the fact that he had spent approximately seven months in custody on remand for these offences, the association between his mental health and the offending, and the difficulties that he has faced and would face in prison, the balance of his sentence should be served without any additional period of full-time detention. This could be achieved if the sentences were served by intensive correction.
53. The approach of both parties was that under s 11 of the Crimes (Sentencing) Act 2005 (ACT), which relates to ICOs, the maximum aggregate sentence that could be imposed was a period of four years. In other words, the four-year outer limit in s 11(3) applied to the aggregate sentence imposed not each individual sentence. The reasons for this joint approach were not obviously correct. The parties relied upon:
(a)what was said by Refshauge J in R v Massey (No 1) [2020] ACTSC 256 at [44]‑[49] in relation to the operation of s 12A of the Crimes (Sentencing) Act 2005 (ACT);
(b)an apparent differentiation between “an offence” and “a sentence of imprisonment” in s 11, the latter said to include an aggregate sentence;
(c)the difference in the language used in ss 11(1) and 12(1); and
(d)the proposition that if the legislature limited the sentence for a single offence which might be the subject of an ICO to 4 years, then it would be anomalous to construe s 11 as allowing an aggregate sentence longer than four years to be the subject of an ICO.
54. In the present case it is unnecessary to decide whether to accept or reject the submissions of the parties as to the availability of an ICO or ICOs. That is because, for reasons which I will explain, I consider that the sentence to be imposed must involve a further, albeit brief, period of full-time detention. Having required the offender to serve an additional period of full-time detention it is appropriate to then suspend the sentences of imprisonment subject to the imposition of a good behaviour order. Had an ICO been available and otherwise appropriate, a similar issue to that arising in relation to the terms of s 11 may have also arisen in relation to the terms of s 29(1)(b), namely, whether the limitations on combination sentences apply only to the sentences upon each individual offence or whether they apply as between the sentences for different offences imposed at the same time. Because, having imposed an additional period of full-time detention, any further period of intensive correction would not be appropriate, it is also unnecessary to determine whether the limit in s 29(1)(b) applies as between sentences for different offences or only in relation to the sentence for an individual offence.
55. The reason that I consider that a further period of full-time detention is necessary is because without such a period, the sentencing purposes of denunciation, general deterrence and punishment would not be adequately reflected in the sentence. That is particularly so in relation to the perjury charge. That offending involved such brazen and apparently enthusiastic falsehoods told in circumstances that directly undermined the administration of justice, that a period of further full-time custody is necessary to appropriately reflect the purposes of sentencing. An ICO or suspended sentence combined with a requirement to perform community service or a fine would not adequately address the purposes of sentencing in relation to this charge. In reaching this unfortunate conclusion I have taken into account the risks to the offender upon return to custody but also the obligations of the Director-General to ensure the safety of the offender derived from the common law and from s 9 of the Corrections Management Act2007 (ACT). Having said that, the overall period of full-time detention will be a modest one prior to the suspension of the sentence and significantly below what would be required by the usual range for a non-parole period. That is because of the burdensome nature of full-time detention upon the offender and the limited need for specific deterrence.
56. The sentences that I will pronounce have taken into account the reductions of the individual sentences referred to above. The aggregate sentence of imprisonment for the Territory offences will be three years and eleven months. The sentences for making false evidence and general dishonesty are largely concurrent because they arise out of the same dishonest scheme to obscure the source of the money in the possession of Mr Leung. The sentences will be otherwise cumulative, reflecting discrete offending behaviour. Totality does not require the introduction of further concurrency. The sentence will be backdated so as to take account of the 224 days spent in custody. This means that the backdate date is 30 August 2022. The sentence will be suspended on 30 August 2023 after the offender has spent 12 months in custody.
57. As the charge of obtaining property by deception is a Commonwealth offence, the provisions of the Crimes Act 1914 (Cth) apply. Had the sentences been imposed and not suspended, it would have been concurrent with the charge of money laundering. That degree of concurrency would have been warranted because of the fact that both offences arise out of the false identification of Mr Al-Mofathel as an employee of the offender’s business and having regard to considerations of totality.
Orders
58. The orders of the Court are:
1. On the charge of perjury (CC2021/8464), the offender is convicted and sentenced to imprisonment for 19 months commencing on 30 August 2022 and ending on 29 March 2024.
2. On the charge of money laundering (CC2021/8474), the offender is convicted and sentenced to imprisonment for 16 months commencing on 30 March 2024 and ending on 29 July 2025.
3. On the charge of making false evidence (CC2021/8467), the offender is convicted and sentenced to imprisonment for 10 months commencing on 30 July 2025 and ending on 29 May 2026.
4. On the charge of general dishonesty (CC2021/8469), the offender is convicted and sentenced to eight months’ imprisonment commencing on 30 November 2025 and ending on 29 July 2026.
5. Each of these sentences is suspended on 30 August 2023 upon the offender entering into a single good behaviour order for two years and 11 months with the additional condition that during the period of the order or such lesser period as is determined by the Director-General, the offender is to be on probation subject to the supervision of the Director-General and to obey all reasonable directions of the Director-General.
6. On the charge of obtaining property by deception (CC2021/11032), the offender is convicted and sentenced to imprisonment for eight months but the offender is to be released forthwith pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) upon giving security by recognisance of $100 to be of good behaviour for eight months.
7. These reasons are not be published on the internet before 1 September 2023 or the conclusion of Mr Al‑Mofathel’s trial, whichever is later.
8. Vary order 3 made on 29 March 2023 so that the prohibition on the publication of the name of Mohammad Al‑Mofathel continues only until the conclusion of this trial.
| I certify that the preceding fifty-eight [58] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop Associate: Date: |
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