Director of Public Prosecutions v Omar
[2022] VCC 834
•2 June 2022
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL DIVISION
CR-21-02368
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| AMIR OMAR |
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JUDGE: | HIS HONOUR JUDGE GUCCIARDO | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 31 May 2022 | |
DATE OF SENTENCE: | 2 June 2022 | |
CASE MAY BE CITED AS: | DPP v Omar | |
MEDIUM NEUTRAL CITATION: | [2022] VCC 834 | |
REASONS FOR SENTENCE
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Subject: Criminal Law. Sentence upon plea of guilty.
Catchwords: Recklessly dealing with proceeds of crime – cyber attack – financial
hardship - dishonest conduct – no prior criminal history - absence of an
early plea of guilty – evidence of remorse.
Legislation Cited: Crimes Act 1958.
Cases Cited: Worboyes v R [2021] VSCA 169
Sentence: Community Corrections Order for 18 months.
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Ms J. Hotchkin | Mr R. Tudehope |
| For the Accused | Mr L. Barker | Mr M. McLellan (Emma Turnbull Lawyers) |
HIS HONOUR:
1 Amir Omar, you have pleaded guilty to recklessly dealing with proceeds of crime as a course of conduct charge. The circumstances of your offending are outlined in a prosecution summary which was exhibited during your plea. I will summarise these circumstances briefly. In December 2020, you were the unauthorised recipient of funds totalling $132,981.40 that were requested by unknown person or persons purporting to be the complainant's conveyancer. It is alleged that you innocently acquired the moneys and later assumed a right to it by dealing with it as an owner. You were 40 years of age at the time of the offending and resided in Footscray. The complainant, Chan Tu, lived in Western Australia and he was not known to you.
2 On 25 November 2020, the complainant signed a contract of sale for the purchase of property in Piara Waters in Western Australia for $600,000. The contract was subject to finance and an initial deposit was paid into a real estate trust account. Some $480,000 was to be provided through a loan facility and the shortfall to come from savings. Settlement was booked for 23 December 2020. The complainant engaged services of a conveyancing firm to effect the transfer. Persons employed at this office utilised a particular email domain and their email at the email addresses of persons at the firm were identified respectively in the summary.
3 The software used by the real estate agent was compromised in December 2020 and unknown person or persons gained access to client contact details and real estate sales data. Data logs indicate a login to the system from the United States of America and Turkey. Alternatively, that login may have occurred behind a virtual private network which masks the true location of origin.
4 In December 2020, the complainant received various emails from unknown persons or person purporting to be someone from the real estate from the conveyancer requesting the transfer of funds in anticipation of settlement into their trust account, which, in fact, was the account details belonging to you. On 15 December, the complainant received correspondence from one of the email addresses from the conveyancer advising that $110,000 was required to settle the shortfall for the sale of the property and giving instructions for depositing the amount into a trust account with the account number being your bank account.
5 Three separate bank transfers were made in December into your bank account and then later in December, a further email indicated a further payment of just over $22,000 being required for stamp duty costs requesting payment into the trust account. The complainant transferred that amount into your bank account. A day later, the final email was received requesting another transfer of the home loan. The complainant forwarded that email to the mortgage broker and copied in the correct email address into the correspondence and he was then later advised that the email was fraudulent.
6 As a result of the deception, the complainant was unable to complete settlement or to secure the purchase of the property. On 5 March 2021, an online fraud report made by Victoria Police in relation to this was allocated to the informant. A search warrant was obtained and executed on your bank account held with the CBA. You had been a customer with the bank from 2009 and had regularly transacted since that time.
7 As of relevant dates in December, your bank account balance was nil. Between 16 December and 21 December, the records of the bank depict four credits from the complainant into your account. But as of five days later, the majority of the funds had been exhausted with the credit balance of $1.40 remaining and analysis of the withdrawals were made by the offender and these are outlined in the summary. The remaining funds of $67,981.40 were transferred to various other bank accounts, mostly those held by you with the Commonwealth and the Bank of Melbourne and on one occasion funds were withdrawn via cardless cash collection from an automatic teller machine.
8 On 8 March 2021, you attended the Footscray police station by appointment and an interview was conducted. You told the police you were the holder of the CBA savings account that received the stolen funds. You did not know anything about the money or where it came from and that you had just found it in your account. That you were in great financial difficulty because of a failed business; that you were shocked when you saw the money and it came to your mind to repay debts which you were stressing over. That debt was approximately $180,000 and you mainly borrowed from friends in the Ethiopian community. The money was used by you to pay your debts and it was spent within four to five days. You denied knowledge of the cyber-attack or communicating with the principal scammer to agree to receive funds. You agreed that you should have reported the funds to the bank but what came to mind rather was to pay off your debt. You agreed that your conduct was dishonest because you should have known to report it to the bank.
9 The chronology of this matter indicates that you were charged on summons on 30 April 2021. A committal hearing was conducted with the informant being cross-examined. In March 2022, a case conference before me was adjourned to allow you to consider a sentence indication hearing which then went ahead in May of this year. At that hearing, having considered material which was placed before me, I indicated that based on that material the sentence of the court would likely not be a sentence of immediate imprisonment. The factors which I consider relevant in this sentence are these: recklessly dealing with proceeds of crime contrary to s194(3) of the Crimes Act 1958 prescribes a maximum penalty of 10 years imprisonment. By this maximum, the legislation indicates the gravity of this offending.
10 The facts set out in the prosecution opening were accepted by you. In my view, this lies at the lower end of the objective gravity of such an offence. I note that it is not part of the prosecution case that you played any role in the cyber-attack or hack on the victim complainant's finances. Although I do not accept the explanation proffered of divine intervention that provided you with these funds, there can be little doubt that you were tempted by the deposit of a substantial amount of money into your bank account and you succumbed to appropriating it for your own purposes, even though it must have been clear to you that you were not entitled to so deal with these funds. I accept based on some material provided to the court, that you had incurred significant debts and found yourself in financial dire straits. That you sought to take the opportunity to repay those debts. The money did not feed an opulent lifestyle, rather it was diverted to debts and family needs here and overseas.
11 I take your plea into account. It has a utilitarian value. It has avoided a trial. It is accompanied by a remorse. I accept that you are regretful and remorseful for your actions. It is a plea made during a period of still excellent pandemic which has affected the delivery of criminal justice in this state significantly and helped resolve a matter without a criminal trial and further delay. In terms of the principles outlined in Worboyes, it was a plea made at a time of pandemic when the prospects of incarceration during this time loomed large and the plea must be given real and palpable benefit in the face of that situation. However, the plea was not made at the earliest opportunity, probably due to frankly fanciful thought that a defence of divine gratuity was viable in this matter. I will reduce your sentence because of that plea.
12 I take into account your background and personal circumstances. You were born in Ethiopia 42 years ago. You belong to a group of people within that nation prosecuted and abused for a long time now. Your family is in Ethiopia and you have continued to send money for their aid when you have been able to do so. Three of your brothers were killed as part of your people's oppression. Each were married and in combination had 10 children between them. When you were aged 24, you fled to Kenya. You lived in a refugee camp for six years there. There, you married in 2005 and your first son was born in 2007. In 2009, you were granted refugee status and came to Australia in 2010.
13 You found employment at Coles. You had a second child and you joined a mosque in West Melbourne. You have no prior criminal history. In 2013, you commenced a degree in aviation science, but within a few years you had three more children and you deferred your studies. However, you did ultimately graduate with a Bachelor of Aviation Science in 2019. In 2017, you opened a shop in Footscray selling women's accessories. In 2019, you combined a café with a hairdresser. In order to get that up and running, you borrowed more than $100,000 from friends and acquaintances, particularly in the Ethiopian community. Unfortunately, at the time, your mother passed away affecting you and the pandemic affected the viability of the business.
14 You reside currently with your family in Housing Commission accommodation. The children are in full-time education. In 2021, you commenced a master's degree in professional accounting in RMIT. You have deferred that course to enable you to work and you have been driving a car for Uber with a rented car and you also work in a café.
15 It is clear that you have an entrepreneurial spirit as well as intellectually capable and that you have endeavoured whilst you have been in this country both to work assiduously and to take care of your family both here and overseas. In my consideration, specific deterrence as conceded by the prosecution can be somewhat moderated given your lack of priors and what I consider to be your prospects of rehabilitation which are good.
16 Just punishment, however, and general deterrence must play a primary role in this sentence. Although some loans were repaid and you made payments overseas to support family members, there is a large amount of money which is unaccounted for. Fortunately, for the victim, they received full recompense from the Commonwealth Bank for the full amount of proceeds dealt with, together with additional funds to account for interest and other losses suffered, which, therefore, meant that no ancillary orders were sought in your case.
17 The court must adopt a sentencing disposition which denounces your conduct and punishes you as well as deters others like-minded to deal with proceeds of crime in the way in which you did. The court needs to ask itself whether the appropriate disposition, in this case, was one of imprisonment or not in order to fulfil those primary considerations and I answered that question at the sentence indication.
18 In my view, the important purposes in relation to this sentence are satisfied by the imposition of a Community Corrections Order. The prosecution submitted fairly that a Community Corrections Order was open in this matter. The conditions which I will impose upon you, in my view, are appropriate to punishment and deterrence. I also take into account the references which have been tendered on your behalf and which speak of your honesty, reliability, considerate nature and good work ethic.
19 You were assessed as suitable for a Community Corrections Order and I intend, with your consent, to impose such an order in the circumstances. On the charge of recklessly dealing with proceeds of crime, you will be convicted and placed on a Community Corrections Order for 18 months. You will perform 250 hours of unpaid community work. You must attend for reporting appointments with your case manager as you are directed to do. During the period of the order, you must not commit a criminal offence and you must be of good behaviour. You must report within two working days to the Neighbourhood Justice Centre in Wellington Street in Collingwood. You will need to sign some documents in relation to that order.
20 If you do not comply, Mr Omar, with the work requirements and do not report when you are required to do so by the Corrections Office, you may be in breach of this order and the court has power to impose a penalty for that breach and to re-sentence you on this charge. Do you understand?
21 OFFENDER: Yes.
22 HIS HONOUR: But for your plea, I would have sentenced you to 12 months imprisonment. Mr Barker - I should ask you Ms Hotchkins first. There are no other ancillary orders, are there?
23 MS HOTCHKIN: No, Your Honour.
24 MR BARKER: None, Your Honour.
25 HIS HONOUR: Mr Barker, Mr Omar needs to sign documentation and my associate will email your instructor those documents and arrangement can be made for Mr Omar to sign that documentation.
26 MR BARKER: Absolutely.
27 HIS HONOUR: Perhaps you can run through the obligations. The assessment made by Corrections was that an order specifically with a condition for supervision was not required but he will need to report when asked to report and need to be engaged by way of being able to be contacted when Corrections wish to contact him and to arrange for that work component.
28 MR BARKER: Of course, Your Honour.
29 HIS HONOUR: Thank you.
30 MR BARKER: Thank you, Your Honour.
31 HIS HONOUR: Thank you both. Sine die.
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