Director of Public Prosecutions v Nasser
[2016] VCC 2033
•22 December 2016
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-16-01498
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| MAHER NASSER |
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JUDGE: | HIS HONOUR JUDGE RYAN | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 15 December 2016 | |
DATE OF SENTENCE: | 22 December 2016 | |
CASE MAY BE CITED AS: | DPP v Nasser | |
MEDIUM NEUTRAL CITATION: | [2016] VCC 2033 | |
REASONS FOR SENTENCE
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Subject: CRIMINAL LAW
Legislation Cited: Sentencing Act 1991; Crimes Currency Act 1981
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms K. Hards | Solicitor for Commonwealth Director of Public Prosecutions |
| For the Accused | Mr J. Mortley |
HIS HONOUR:
1 Maher Nasser, on 15 December 2016, you pleaded guilty to make counterfeit money (Charge 1), possess instrument to make counterfeit money (Charge 2) and handle stolen goods (Charge 3). Additionally, you pleaded guilty to the related summary offence of fail to answer bail.
2 The maximum penalty for make counterfeit money is 14 years’ imprisonment and the maximum penalty for possess instrument to make counterfeit money is ten years’ imprisonment, whilst the maximum penalty for handling stolen goods is 15 years’ imprisonment. The maximum penalty for the related summary offence of fail to answer bail is two years’ imprisonment.
3 You have an extensive criminal history which you admitted and to which I will refer later.
4 Tendered as Exhibit A on the plea was the summary of prosecution opening which was read aloud in court. Your offending can be briefly stated. Between 23 and 25 February this year, you provided counterfeit $50 and $100 notes as payment for hire of a cabin at the Honey Hush Caravan Park in Laverton North. During your stay, the manager of the park noticed a black BMW sedan and a black Mercedes Benz attend at your cabin. He took a note of the registration number of the Mercedes Benz and when he became aware that the money that was used to pay your rent was counterfeit, he contacted police.
5 As a consequence, on 26 February this year, police executed a warrant at your cabin and on entry, amongst other things, found 153 counterfeit $100 notes and 63 counterfeit $50 notes (Charge 1). As well, there was a computer, a scanner, printers, clear windows for counterfeit money, an external hard drive, paper and the like, all being instruments to make counterfeit money.(Charge 2). Additionally, police found a VISA card, a MasterCard, and proof of age card and Medicare card in other people’s names which you had handled, believing them to be stolen.
6 You were taken to the Werribee Police Station where you were interviewed under caution. You admitted that you had been at the cabin for about four days, counterfeiting money on and off. You told the police you had to make counterfeit money to pay a debt owed to an associate, who you would not name. You told the police that you had made around $20,000 worth of counterfeit money.
7 In respect to the related summary offence, on 3 December 2012, a warrant was issued in respect of you failing to appear at court in relation to unrelated matters. On 4 December, the warrant was executed on you and you were released on bail to appear at the Melbourne Magistrates’ Court on 10 February 2016. On 10 February 2016 you failed to appear.
8 You have six appearances before criminal courts between October 2008 and June 2016. You have 56 prior convictions from those appearances. You have prior convictions in respect of dishonesty, bail, and currency offences.
9 On 4 June 2014, you were convicted and sentenced in respect to two charges of make counterfeit money, five charges of possess counterfeit money, and one charge of possess a machine to counterfeit money. You were sentenced to an aggregate term of imprisonment of 30 days in respect of those offences with an overall sentence of 90 days, together with a community corrections order for a period of 18 months.
10 You breached that order by further offending, which included make counterfeit money (two charges), possess counterfeit money (two charges), possess instrument to counterfeit money, possess paper/ink to counterfeit money and knowingly utter counterfeit money; and in respect of that and other offences, received an aggregate sentence of 80 days’ imprisonment, together with a community corrections order for a period of 18 months.
11 Accordingly, you have a number of convictions for the offences for which you fall to be sentenced and you were on a community corrections order at the time of the instant offending, which is an aggravating circumstance of your offending.
12 You are 40 years of age and were born in Lebanon in 1975. Your family fled Lebanon to Cyprus and then to Australia when you were aged about nine months. You have one brother and three sisters, all of whom are law-abiding. Your family settled in Newport, which I was informed contained an active Lebanese community at the time of your arrival in Australia, and your family was active within that community. You have a loving family. However, I was informed that your father was strict and you were subject to corporal punishment when you misbehaved.
13 You were educated at the Sacred Heart Primary School in Newport and later, the Paisley Secondary College at Altona North. I was informed that apart from socialising with your family and other members of the Lebanese community within a family setting, you were not otherwise allowed a social life. You completed Year 12 and went to Victoria University and in 1998, graduated with a Bachelor of Applied Science, specialising in Computer Technology. You were the first member of your family to be university educated.
14 After leaving university you were employed by ComNet in information technology and installation of computer equipment, mostly under Australian government contracts in respect to the installation of equipment of that kind at government schools. You commenced as a junior consultant and at the time of leaving ComNet, you were a managing consultant, supervising a number of staff and earning a salary package of $120,000.
15 In 2000, when you aged about 25 years, you met your former wife, Selina, and were engaged some three months later. It was put on the plea that this was a marriage of convenience so far as you were concerned because it allowed you to leave your family home and to live in a home of your own where you were not subject to the strictures imposed upon you by your father. I was informed that the restrictions placed on your social life whilst a school student also applied to you whilst you were at university.
16 Whilst working at ComNet, you purchased an apartment, four units and the house in which you and your wife lived. There are two children of the marriage, Hassan, a son born in 2013 and Jannah, a daughter born in 2005.
17 In 2005, you left your employment at ComNet and started your own company, Australian Computer Hardware Solutions. The company was a success and it turned over $1m per month. You employed twelve staff and the net profit from your turnover was five per cent. You paid yourself only $60,000 by way of salary and invested the remainder of profit back into your business. However, all of this came to an end in about 2006 when a client purchased $50,000 worth of goods from you and defaulted on payment and went into bankruptcy. Your business was unable to survive this loss. You lost all your properties, save for your house and, in respect of that, any equity that you had in it.
18 I was informed that at or about the time of this loss, you were introduced to methylamphetamine and used that substance to assist you in working longer hours in order to keep your business afloat. You started socialising and partying and as a result your methylamphetamine abuse increased over time. Your wife realised that you were abusing methylamphetamine because she found an ice pipe in your car and because of your lifestyle changes, which included staying awake for days at a time. Ultimately, your marriage came to an end as a result of your drug abuse. Your business foundered and you were divorced in 2011.
19 You have a loving and supportive family who visit you in prison. However, upon release from prison, they will not provide you with any housing support or the like until they are satisfied that you are and will remain drug-free.
20 Mr Mortley, of counsel, who appeared on your behalf on the plea, informed me of the circumstances that brought about your offending. In short, he informed me that whilst you were in prison in 2015, you sought to bolster your social status within the prison by boasting of your history of counterfeiting money. You were approached by fellow inmates associated with an outlaw motorcycle gang and you were informed that when you left prison, you would be “looked after”, which would include accommodation, a car, methylamphetamine and money if you would produce counterfeit money for them.
21 After your release from prison in April 2015, you met with a member of an outlaw motorcycle gang, who gave you $10,000 in cash by way of a deposit to establish a counterfeiting operation. Shortly thereafter, you met and commenced a relationship with Ms Jupp. As a result of this relationship, you decided that you did not want to be associated with a motorcycle gang and refused to start the counterfeiting operation.
22 It was put that in June 2012, you were seriously assaulted by affiliates of the motorcycle gang and despite your offer to return the $10,000 in cash, you were told that you were to produce $300,000 in counterfeit currency to clear your debt.
23
Tendered as part of Exhibit 1 was a report from Austin Health dated
9 June 2016. This document confirms that on 30 June 2015, you were seen in the Maxillofacial surgery outpatient clinic. You presented with a depressed left zygoma fracture which was subsequently stabilised by way of an open reduction and internal fixation of your zygomatic complex fracture with surgical removal of one tooth.
24 Mr Mortley informed me that you managed to avoid the motorcycle gang for a number of months until December 2015, when men broke into the house where you were living and assaulted you once again and informed you that you must produce $500,000 worth of counterfeit currency to expunge your debt. Again you were admitted to hospital in respect of the injuries suffered to your face and you underwent further surgery to the already damaged left zygomatic area. This surgery included a further open reduction and internal fixation with multiple plates, and you were discharged from hospital on 6 January 2016.
25 During your interview with police, you told them that you had no choice in respect of your counterfeiting operation, that in the past a couple of months, people had run in with guns and that you got a broken eye socket as a result of the assault (see record of interview questions 57 and 58). You told the police that these people have a lot of connections and that you were producing counterfeit currency to clear "some sort of debt."
26 From a perusal of the depositional material and, in particular the cross-examination at your contested committal, it is plain that there were others involved in this enterprise. The registration number provided by the caravan park owner to the police caused the involvement of the National Anti-Gang Squad. The black Mercedes-Benz was connected with Abdul Tiba, who was being sought by police in respect of violence and firearms offences. There was some surveillance conducted by police on the caravan park and the warrant that was executed at the park, that caused you to be arrested, was directed towards Abdul Tiba. On the day of your arrest, he was arrested at the Bunnings carpark in Altona North. He was found in possession of a firearm and was remanded in custody. Senior Constable Ashcroft, the informant in this matter, believes that Mr Tiba’s then girlfriend stayed with you in your unit or cabin.
27 During the plea, I indicated to your counsel that I was unlikely to accept the matters that he put to me in respect to the circumstances of your injuries as they related to your offending, absent, it being supported by evidence. No evidence was forthcoming. Absent evidence, I am unable to accept what was put on your behalf concerning those circumstances. However, it is plain that at the time of your arrest, you were associating with a dangerous criminal element.
28 There is no doubt that you were injured on two occasions and seriously so. However, the circumstances of how those injuries arose are not made out on balance.
29 Despite my findings, it is apparent that you were not counterfeiting on your own account but at the request of others. It is also apparent that you were scared of those other people.
30 It was conceded by your counsel that an immediate term of imprisonment was warranted in all the circumstances. However, he emphasised your plea of guilty and that you made admissions to police. Mr Mortley emphasised that you were counterfeiting on behalf of others, others who were more immersed in the criminal scene than you and persons who you were rightly fearful of.
31 Since being on remand, you have applied yourself to study and have reignited your adherence to the Muslim faith. You have participated in rehabilitation programs. Tendered as part of Exhibit 1, was a letter from Mukhtar Mohammed, Muslim Connect coordinator on behalf of the Islamic Council of Victoria, dated 14 December 2016. This organisation has and will continue to provide assistance to you whilst you are in custody and will, upon your release, support and facilitate your reintegration into the community. It is hoped that this will include a complete reconciliation with your family.
32 The face value of the counterfeit currency found by police was $18,450 and this is a significant amount of currency. Currency offences are viewed seriously by sentencing courts, not the least because of the applicable maximum penalties but also because counterfeit money undermines confidence in the integrity of Australian currency. There are potential rewards for a successful counterfeiter, either from passing the money off or from selling it to others and those who unwittingly receive counterfeit money either make a loss or have an incentive to try to pass the counterfeit currency off as good and so make good, their losses.
33 You have relevant prior convictions and were undertaking or were undergoing a community corrections order in respect to currency offences at the time that you committed the instant offending. General deterrence, specific deterrence, denunciation of your conduct and just punishment must be at the forefront of any sentencing exercise in your case. However, you pleaded guilty after committal and are entitled to the benefit that flows from your plea, being that it has utilitarian value and that it is some evidence of your remorse. Further, you made admissions to the police when interviewed. You have spent your time whilst on remand productively and this impacts upon your prospects for rehabilitation. Despite this, I view your prospects of rehabilitation as poor, unless and until you rid yourself entirely from the abuse of methylamphetamine.
34 Now, I noticed during the course of my reasons, counsel were conferring; is there anything that they wish to add in respect of this sentence and how it is constructed?
35 MR MORTLEY: No, Your Honour. The discussion between my learned friend and I was effectively a diagram I have prepared of Your Honour's sentence, which appears to be very much the correct sentence. However, my learned friend pointed out an issue to do with the recognisance release order.
36 HIS HONOUR: Yes.
37 MS HARDS: Your Honour, for the recognisance release order, my learned friend and I have come to the conclusion that, effectively, Mr Nasser would be serving 15 months' imprisonment on the Commonwealth sentences and that would be indicated on the release order and then three months on the state sentence, so that is how it has been drafted and I can hand this up to Your Honour to have a look.
38 HIS HONOUR: If you would be so kind.
39 MS HARDS: I also just wanted to note that it is a requirement for a dollar amount to be placed on (indistinct words).
40 HIS HONOUR: Yes, I understand.
41 MS HARDS: Thank you.
42 HIS HONOUR: Just pardon me, Mr Nasser.
43 MS MORTLEY: May I approach my client, Your Honour?
44 HIS HONOUR: Yes. By these sentences I must denounce your conduct. I must punish you and deter you and others from committing crimes of the same or similar kind and I must look to your rehabilitation.
45 Taking into account the circumstances of your offending and their effects, your personal circumstances and antecedents, and endeavouring to produce sentences which reflects and promotes the purposes of sentencing in a manner appropriate to you, I sentence you as follows:
46 On Charge 3, six months’ imprisonment.
47 On the related summary offence of failing to answer bail, three months’ imprisonment and I direct that one month of this sentence be served cumulatively upon the sentence imposed on Charge 3, making a total effective sentence of seven months and that is in respect of the state offences.
48 On Charge 1, I sentence you to two years' imprisonment, to commence three months after the commencement of the sentences imposed on Charge 3 and the related summary offence.
49 On Charge 2, I sentence you to 12 months’ imprisonment, that is to commence 15 months after the commencement of the sentence imposed on Charge 1.
50 I fix a recognisance release order to commence nine months prior to the expiration of the sentence imposed on Charge 1, which is for a period of 12 months.
51 I declare that you have spent 210 days by way of pre-sentence detention, not including today.
52 In respect of the state sentences, I declare pursuant to s6AAA of the Sentencing Act 1991 that, but for your plea of guilty, I would have sentenced you to 12 months’ imprisonment.
53 By these sentences, I intend that you be sentenced to two years and six months’ imprisonment and that you will be released from prison on a recognisance order after serving 18 months of that sentence.
54 They are the maths. In Victorian terms, a head sentence of two and a half years with a minimum term of 18 months. However, when you are released, you will be on what is known as a recognisance release order and I set that in the sum of $1000. It is unlike state parole. Effectively, the balance of that sentence hangs over your head during the period that you are on the recognisance. Should you breach the recognisance, it acts very similar to the old suspended sentence, that is in respect to the balance of the sentence you will be liable to serve. Do you understand what I have said to you? If you do not, I will explain it again.
55 OFFENDER: Yeah, I think I do.
56 HIS HONOUR: All right, well I will go through it again. You could probably understand that if you were to be sentenced under Victorian law alone, in a sentence like the, the end result would be a total effective sentence of two years and six months with a non-parole period of 18 months, all right.
57 As you know, at the 18 month period, the Adult Parole Board has the ability to release you on parole, they may not; it is totally their call to do it. Because you are being sentenced on both a State and Commonwealth offences, I construct a sentence for the Victorian offences and I construct a sentence for the commonwealth offences and I have somehow got to marry them together.
58 What this means is that rather than being in the hands of the Adult Parole Board about when you get out of prison. I have set the date that you will get out of prison. It will be after you have served 18 months of the total sentence.
59 OFFENDER: Oh, that's two and half, Your Honour.
60 HIS HONOUR: That's right, eighteen of the two and a half but for 12 months, you will be on a Commonwealth recognisance release order; that is not like parole. It is as if you have got the 12 months hanging over your head as a suspended sentence, all right? Does that make sense?
61 OFFENDER: Yes, well thank you, Your Honour.
62 HIS HONOUR: Now, I will hand down - - -
63 MS HARDS: Your Honour, I just wanted to be certain that for Charge 1, it was two years imprisonment, I believe Your Honour might have mistakenly said two months' imprisonment.
64 HIS HONOUR: Well, if I said two months, it was an error; it is two years.
65 MS HARDS: Thank you, Your Honour.
66 HIS HONOUR: Thank you for bringing that to my attention and I will settle the sentence. Yes?
67 MR MORTLEY: Confirm, Your Honour, the 210 days of pre-sentence detention is applicable, that is the correct figure.
68 HIS HONOUR: Thank you very much, Mr Mortley. Now, James, would you hand that to the prosecutor to ensure that I filled it out properly and then would you take it to Mr Nasser for his signature, please? Now, that relates to the recognisance release order, Mr Nasser, that is the period when you are out of gaol but the sentence has not completed yet, all right?
69 OFFENDER: Thank you, Your Honour.
70 HIS HONOUR: That is all right. Now, could you Photostat three copies of that, please? One for each counsel and one for Mr Nasser, (indistinct words).
71 Now, I have given you a copy of the recognisance release order for your own records, so you know what it is and it will be in your personal property at the prison, all right?
72 OFFENDER: Thank you, Your Honour.
73 HIS HONOUR: Now, there were two ancillary matters and that is an order under s.29(5) of the Crimes Currency Act and I have made that order.
74 There is an application for s.464ZF(2) order and I will make that order. The Crown have made application for what is known as a forensic procedure and I have granted that application, that is a buccal swab and I have granted that order because of the seriousness of the circumstances of your offending warrant the order and because your prior convictions warrant the order and that the granting of the order is in the public interest. But I need to inform you of this, if at the time of request of the forensic sample, you do not consent to the taking of a mouth scraping under the supervision of an authorised member of police, then the same to be take will be a blood sample. Police may use reasonable force to enable that procedure to be conducted. I hand down three copies of that order. Are there any other matters that need to be attended to?
75 COUNSEL: No, Your Honour.
76 HIS HONOUR: Thank you very much, I would like to thank counsel for their assistance in this matter. Would you remove the prisoner, please?
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