Director of Public Prosecutions v Orji
[2015] VCC 503
•27 April 2015
| IN THE COUNTY COURT OF VICTORIA | Revised Not Restricted Suitable for Publication |
AT MELBOURNE
CRIMINAL JURISDICTIONCR-14-00282
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| CHINEMERE ORJI |
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| JUDGE: | HIS HONOUR JUDGE MASON |
| WHERE HELD: | Melbourne |
| DATE OF HEARING: | 26 & 30 March and 13 & 20 April 2015 |
| DATE OF SENTENCE: | 27 April 2015 |
| CASE MAY BE CITED AS: | DPP v ORJI |
| MEDIUM NEUTRAL CITATION: | [2015] VCC 503 |
REASONS FOR SENTENCE
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Subject:Plea – sentencing
Catchwords: Obtaining property by deception
Legislation Cited: Sentencing Act 1991
Cases Cited: Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
McAleer v The Queen [2015] VSCA 4,
Sherritt v The Queen [2015] VSCA 1
Marocchini v The Queen [2015] VSCA 29
Sentence:6 months' imprisonment plus 2-year CCO
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APPEARANCES: | Counsel | Solicitors |
| For the Director of Public Prosecutions | Mr D. Porceddu | Office of Public Prosecutions |
| For the Offender on 26/3/15 & 30/3/15 For the Offender on 13/4/15, 20/4/15 & 27/4/15 | Mr S. Anger Mr D. Boden | Starnet Legal |
HIS HONOUR:
1Chinemere Orji, you have pleaded guilty to two charges of obtaining property by deception, namely, cash totalling $135,000 belonging to Paul Azzopardi. The maximum penalty for this offence is ten years' imprisonment.
2You were born on 29 July 1985 so you are now aged 29. You were aged 27 when this offending occurred. You have no prior criminal history.
3The victim in this matter is Mr Azzopardi, who is aged 78 years and owns and manages Azza Properties Investments Pty Ltd, a company that sells secondhand machinery and equipment. The business is located on about 20 acres of land on Doherty's Road, Truganina. Mr Azzopardi also lived there with his wife and daughter.
4
In about late July 2012 you and your co-accused, Ibeachu, attended at
Mr Azzopardi's business to purchase equipment and machinery. You identified yourself as Alex Brown and James Brown respectively: brothers from Africa. You and Ibeachu had been referred to Mr Azzopardi by a Douglas Anoruo. Mr Anoruo was a regular buyer from Mr Azzopardi's business and was also African.
5You and Ibeachu told Mr Azzopardi that you wish to buy machinery and equipment to the value of about $500,000 with a view to sending it to South Africa. This type of transaction was not unusual for Mr Azzopardi's business. However, you and Ibeachu did not have the money to purchase the equipment, so you and Ibeachu contacted Mr Azzopardi to put a business proposition to him.
6Accordingly, Mr Azzopardi collected you and Ibeachu and drove you to his business to discuss terms. You and Ibeachu brought with you two locked steel safes.
7Ibeachu told Mr Azzopardi that the safes contained $1 million in United States currency. Out of one of the safes Ibeachu took a handful of paper that was coloured black, wrapped in plastic and was about the size of normal money. He then placed the black paper into a bowl of hot water, adding chemicals as he went. He then placed the paper into another bowl of warm water, and it then changed in appearance to look like a $US100 note. Mr Azzopardi asked you and Ibeachu if this process was legal and was told that it was. A friend of Mr Azzopardi, Andrew Finch, was present during this demonstration.
8The terms of the business proposition were as follows:
Ø You and Ibeachu had $1million in dirty or stained US currency.
Ø In order to clean the money, you and Ibeachu needed specialised chemicals.
Ø The cost of the chemicals would be $370,000.
Ø You and Ibeachu wanted the $370,000 from Mr Azzopardi to purchase the chemicals.
Ø After the cleaning of the US currency, Mr Azzopardi would receive the $370,000 back plus interest and you and Ibeachu would spend the remaining money at Mr Azzopardi's business.
9Mr Azzopardi agreed to these terms and informed Ibeachu and you that you would receive the money. The two safes remained locked and were placed into one of Mr Azzopardi's safes. The keys of the safes given to Mr Azzopardi were retained by you and Ibeachu.
10
As to Charge 1 relating to $100,000: on 8 and 13 August 2012 Mr Azzopardi withdrew a total of $100,000 with the intention of giving this money to you and Ibeachu in accordance with the agreement. After withdrawing the money on 13 August 2012, Mr Azzopardi and his friend, Scembri, attended at the Parkview Hotel in St Kilda. Mr Azzopardi then handed you and Ibeachu a total of $100,000. The cash was contained in a toolbox.
11On 28 September 2012, Mr Azzopardi planned to meet you and Ibeachu at the Tullamarine Airport carpark and give you $50,000. He drove there with his wife, daughter, and friends Finch and Andrews. You and Ibeachu were not impressed to see Mr Azzopardi with family and friends, and some angry words were exchanged which resulted in no money being handed over.
12The next day, on 29 September 2012, Mr Azzopardi agreed to collect Ibeachu from the Werribee Shopping Centre plaza. Mr Azzopardi was in the company of his two friends, Finch and Andrews. Ibeachu was picked up and taken to Tullamarine Airport where Mr Azzopardi bought Ibeachu a one-way ticket to Sydney via Virgin Airlines. The ticket was purchased from Tullamarine Airport Flight Centre. The ticket and the $50,000 were handed to Ibeachu. The cash was contained in a shoebox. Mr Azzopardi thought that Ibeachu was going to Sydney to purchase the chemicals for the cleaning of money. You were not present during this transaction and it is not alleged that you are criminally liable in respect of this $50,000 transaction.
13As to Charge 2 relating to $35,000: on 1 October 2012 a meeting was arranged with you at the Crown Casino carpark. Mr Azzopardi went with his employee, Anthony Laghi. Mr Azzopardi could not locate you at Crown but he managed to find you at Flinders Street on the same day. There, Mr Azzopardi handed over $35,000 to you.
14
On 18 December 2012, you and Ibeachu and another co-accused, Okoro, attended Mr Azzopardi's business. You, Ibeachu and Okoro opened the two safes and began to clean some of the US currency. As a result, Mr Azzopardi received $4,000 in $100 notes but returned $2,000. The balance he then gave to his wife for spending money. Mr Azzopardi at this point handed over another $15,000. Although you were present, it is not alleged that you are criminally liable in respect of this transaction.
15At no time after 18 December 2012 has Mr Azzopardi received any chemicals or any attempt to clean the money from either you or the other accused men. Mr Azzopardi made numerous calls to you and Ibeachu but was met only by demands for more money.
16
On 18 January 2013 Mr Azzopardi reported the incident to police. On
21 January 2013 police attended at Mr Azzopardi's business premises to break open the two steel safes with the aid of a local locksmith. The safes contained black paper wrapped in clear plastic wrap. There was no $1million in US currency, or any money whatsoever.
17Arrangements were made on 28 January 2013 to meet you, Ibeachu and Okoro at the Hoppers Crossing railway carpark. Mr Azzopardi went with Finch and the police were advised of this meeting. You, Ibeachu and Okoro on this day drove to the Hoppers Crossing railway carpark and sighted Mr Azzopardi in his friend's vehicle. Okoro approached Mr Azzopardi and spoke to him. Police then attempted to intercept your vehicle, whereupon all three of you ran from police. A short time later, you all three were apprehended and arrested.
18A search warrant was executed at your residential address. During the search, the police found $6,000 in Australian currency. This was originally the subject of a separate summary charge of proceeds of crime. I now understand this charge will be withdrawn and you have consented to the money being applied as part payment of a compensation order.
19You were interviewed on 28 January 2013 and stated that the $6,000 was your money as you brought it from Africa as a result of your mother-in-law passing away. You also stated that you received money from Nigeria through your Westpac account.
20
Ibeachu, your co-accused, has absconded and there is a warrant for his arrest.
21Okoro pleaded guilty on 18 September 2013 to one charge of obtaining property by deception, namely $15,000, that transaction occurring on 18 December 2012. Okoro was sentenced, with conviction, to a 15-month Community Correction Order.
22Two victim impact statements were tendered from Mr and Mrs Azzopardi. Each has described how their financial loss has had a negative impact on their life and how the whole experience has caused them fear for their safety.
23I now turn to your personal circumstances.
24As I noted earlier, you are aged 29 years now, you were 27 at the time of offending and you have no prior criminal history.
25You were brought up in Nigeria, lived in the capital Lagos and have described a happy childhood. You progressed uneventfully through school, successfully completed a diploma in midwifery and then were employed as a medical clerk in a hospital. Whilst in Nigeria, you had formed a de facto relationship and have two children.
26You first visited Australia in 2011 to attend an international conference in Melbourne. Whilst here, you applied for a protection visa on the basis of threats from the terrorist organisation, Boko Haram. This was rejected. During the protection visa process, you met your current wife and married in December 2011. Your children from your previous relationship in Nigeria are living with their mother in Nigeria and you support them financially.
27Your wife in Australia has now left you and resides in Adelaide, although you are hopeful of a reconciliation.
28In Australia you have maintained employment variously as a forklift driver, machine cleaner and in building construction, and from around 18 months ago to the present time, as a retail manager in clothing.
29A psychological report from Mr Edwin Kleyhans was tendered on your plea. At your meeting with Mr Kleyhans your presentation was agitated and you exhibited suicidal ideation. Your speech was marked by anger, frustration, sadness, fear and loneliness. You told Mr Kleyhans that you had succumbed to inappropriate behaviour as a result of considerable pressure to satisfy the financial needs of your new wife and your children. You said that when you interacted with Mr Ibeachu and Mr Azzopardi you were under the impression that you could become financially independent.
30It is clear that you have reacted strongly to the position in which you have now placed yourself. In Mr Kleyhans opinion you have suffered adjustment stress since being charged with these offences, which has resulted in significant impairment in your social and occupational functioning. You are vulnerable to stress and have sought treatment by way of a mental health plan from your family doctor. You have been prescribed anti-anxiety medication because of your problems with insomnia and stress.
31Mr Kleyhans also recommended psychological treatment by way of cognitive behaviour therapy to deal with inappropriate behaviour, stress and anger management.
32Mr Kleyhans also reported that you felt remorseful for having engaged in criminal behaviour.
33
Your church pastor, Mr Lucky Ekhator, gave evidence of your attendance at his church. You commenced there after you had been arrested and have received counselling and pastoral care from him. You told your pastor that you had made a mistake, and he spoke of your depression and what he described as genuine remorse. You have attended the church on Sundays and have assisted Mr Ekhator by helping with preparations before the service and cleaning up after the service.
34The crimes you committed were part of a well-planned and quite sophisticated scam designed to swindle a targeted individual out of a large amount of money. They were protracted and involved theatrical representations in order to present authenticity. This is a serious example of obtaining money by deception, and principles of denunciation and deterrence - both specific to deter you from further crime and general, that is to make an example of you to deter other likeminded offenders - assume significance. Whilst you are not the architect of the plan nor perhaps the greatest beneficiary, you were clearly an active partner instrumental to its execution. You came from a happy home, you were well educated, you impress as not being unintelligent and you had the support of a wife. Based upon the criteria relied upon by Mr Kleynhans, you have no significant contributing personality disorders or any addictive compulsions. In short, your moral culpability for this offending is high. Your motivation was simply greed.
35In mitigation, I accept:
· your plea of guilty and that there were early attempts by you to resolve the matter by a plea of guilty well before trial;
· your lack of any previous offending;
· the fact that you have obtained various employment;
· your lack of any pre-existing personality disorders that might impede your rehabilitation;
· the evidence you have expressed of some remorse;
· the further remorse that is established by your consenting to the $6,000 seized from you to be released to Mr Azzopardi;
· the support you have from your friends and the church and, to an extent, from your family;
· that there is no evidence of enrichment in your lifestyle following the deception; and
· it is likely that you were not the major recipient of the money obtained.
36Overall, I form the impression, both from the evidence on the plea and from your demeanour in court, that you do very much regret your involvement in this offending, but largely because of the consequences to you. I accept that your prospects of rehabilitation are fair.
37Whilst I have accepted that you have worked in retail for the period given in evidence by Mr Emete, I have not accepted the character appraisal contained in the reference letter dated 23 March 2015 from Emete Pty Ltd. Because of the further evidence heard subsequent to the plea, I can have no confidence that the content is a truthful account. However, I consider that there is insufficient evidence to hold you accountable for the way in which the document was produced, so I do not hold you accountable for the way in which that document was produced to the court.
38Your counsel has submitted that in all the circumstances, the purpose or purposes for which a sentence is imposed can be achieved by a sentence that does not involve your confinement in prison and which can be achieved by a suitably directed Community Correction Order. The prosecution concedes that a term of imprisonment tailored with an appropriately conditioned Community Correction Order is not outside appropriate sentencing discretion.
39
The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offending, your culpability for it, its context, your personal circumstances and those of the victim. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that, as far as possible, offenders are rehabilitated and reintegrated into society.
40In his submissions on sentence, your counsel gave specific emphasis to the recent decision of the Court of Appeal in the case of Boulton & Ors v R.[1] I have given close consideration to the principles expressed in that decision and the further expressions of those principles by the Court of Appeal in subsequent decisions of that court including McAleer[2], Sherritt[3] and Marrochini[4]. I have also carefully considered the provisions of the Sentencing Act 1991 and in particular s.5(4C).
[1] Boulton, Clements and Fitzgerald v The Queen [2014] VSCA 342
[2] McAleer v The Queen [2015] VSCA 4
[3] Sherritt v The Queen [2015] VSCA 1
[4] Marocchini v The Queen [2015] VSCA 29
41On balance, in the particular circumstances of this case, I am not persuaded that the purpose or purposes for which the sentence is imposed can be achieved by a sentence that does not involve your confinement in prison for some period. In my view, the objective gravity of your offending is too high, despite the mitigating circumstances, to justify that option. In my view, the gravity of the offending requires that the retributive and deterrent purposes of punishment in custody must take precedence.
42However, I also consider that the actual time spent in confinement can be appropriately reduced with the benefit of a combination of a Community Correction Order on release, given that a Community Correction Order can be imposed for a period of years with conditions attached which are both punitive and rehabilitative, which will militate against the disadvantages of imprisonment to a first offender and give you the opportunity to address the issues in your life that may have contributed to your offending, both to your advantage and the advantage of the community.
43Mr Orji, would you please now stand.
44On Charge 1 of obtaining property by deception, you are convicted and sentenced to six months' imprisonment.
45On Charge 2 of obtaining property by deception, you are convicted and sentenced to two months' imprisonment.
46I have decided against any cumulation on the basis that each charge represents one part of an overall plan of obtaining money by deception. In my view, they are properly viewed as parts of an overall plan.
47The total effective sentence is six months' imprisonment.
48On Charges 1 and 2 of obtaining property by deception, you are also ordered to serve a Community Correction Order for a period of two years.
49Pursuant to s.6AAA of the Sentencing Act, but for your plea of guilty the total effective sentence that would have been imposed is three years' imprisonment with a minimum period of two years to be served before eligibility for parole.
50As to the Community Correction Order, the Order commences immediately upon your release from prison and ends two years from that date. The correction centre you will attend is the Sunshine Community Correctional Service at 10 Foundry Road, Sunshine, and you must attend there within two clear working days after the completion of your imprisonment term.
51All the mandatory terms of community correction order apply and the additional conditions I impose are that:
· you be under the supervision of a community corrections officer;
· you perform 200 hours of unpaid community work;
· you undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric in a hospital or residential facility as directed by the regional manager;
· you undergo assessment and treatment including testing for alcohol abuse or dependency as directed by the regional manager; and
· you undergo programs or courses aimed at addressing factors relating to your offending as directed by the regional manager.
52I believe from the pre-sentence report that you have had the mandatory terms of the Community Correction Order explained to you. However, it is appropriate that I briefly summarise them here. The mandatory terms are that:
· you must not commit another offence for which you could be imprisoned during the time that the Order is in force;
· you must report to and receive visits from a community corrections officer;
· you must report to the community corrections centre, that is the Sunshine centre, within two clear working days of the Order starting, and as I have already indicated, the Order commences immediately upon your release from prison;
· you must notify a community corrections officer of any change of address or employment within two clear working days after the change;
· you must not leave Victoria without first getting permission to do so from a community corrections officer; and
· you must obey all lawful instructions from and directions of community corrections officers. Such directions may be given either orally or in writing.
53Do you understand and agree to those conditions, Mr Orji?
54OFFENDER: Yes.
55HIS HONOUR: Thank you.
56If you are ill or if there are exceptional circumstances, the Order may be suspended for a period of time, and if your circumstances materially alter, you may apply for a variation or cancellation of the Order. In either case, you must notify the Sunshine Community Corrections Centre, and I recommend that you obtain legal advice if any of these things happen. However, I must warn you that if you breach any condition of this Order, you will be brought back before me. One of the options open to me is to cancel the Community Correction Order and resentence you on the original charges, and I may also deal with you for the breach by sending you to prison for up to three months.
57Mr Orji, do you understand the consequences of breaching your Community Correction Order?
58OFFENDER: Yes.
59HIS HONOUR: Thank you. I will ask you to sign the Community Correction Order shortly.
60At the plea hearing the Crown sought an order which was not opposed for the taking of a forensic sample, and I have made that order today for the reasons noted on the order, namely, the seriousness of the offending warrants the making of the order, the order was not opposed and the granting of the order is in the public interest. I must inform you that if at the time of the request you do not consent to the taking of a mouth scraping under the supervision of authorised member of the police force, then the sample to be taken will be a blood sample and police may use reasonable force to enable that forensic procedure to be conducted.
61Do you understand that, Mr Orji?
62OFFENDER: Yes.
63HIS HONOUR: Thank you.
64At the plea hearing, the Crown also sought a disposal order for three mobile telephones to which you consented and I have made that order today.
65The Crown further sought a compensation order for the sum of $135,000 to be paid to Mr Paul Azzopardi which you did not oppose, and I have also made that order today.
66As I mentioned before, Mr Orji, I note that you have agreed to forfeit your $6,000 which was seized in these proceedings, on the agreement which has been struck with the prosecution whereby the summary charge of proceeds of crime will be withdrawn and the money forfeited will go to Mr Azzopardi in part payment of the compensation order.
67You may be seated for the moment.
68I also indicate that in directing the sentence that I have, I have also considered the issue of parity with your co-accused, Mr Okoro. Mr Okoro is clearly in a different position to you on the basis of the amount received and the depth of his engagement in this offending.
69I formally make the restitution order also this afternoon.
70At this stage, I would ask that the Community Correction Order be passed to your counsel who will take it to you, if you agree with it, to sign. Thank you.
71Is there anything else from either counsel? Mr Porceddu?
72MR PORCEDDU: No, Your Honour.
73HIS HONOUR: Mr Boden?
74MR BODEN: No, Your Honour.
75HIS HONOUR: Thank you.
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