Director of Public Prosecutions v Saad

[2019] VCC 1466

IN THE COUNTY COURT OF VICTORIA

AT MELBOURNE

CRIMINAL DIVISION

Revised
Not Restricted
Suitable for Publication

CR-18-01233

DIRECTOR OF PUBLIC PROSECUTIONS

v

MINA SAAD

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JUDGE:	His Honour Judge Johns
WHERE HELD:	Melbourne
DATE OF HEARING:	28 August 2019
DATE OF SENTENCE:	9 September 2019
CASE MAY BE CITED AS:	DPP v Saad
MEDIUM NEUTRAL CITATION:	[2019] VCC 1466

REASONS FOR SENTENCE
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Catchwords:             CRIMINAL LAW – Sentence – Plea of guilty – two charges of theft from employer – $256,000 - Breach of trust – whether Verdins principles apply – no causal connection – Imprisonment – Combination – Community Corrections Order.

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr Y. Hardjadibrata	Office of Public Prosecutions
For the Accused	Mr C. Bolger No appearance at sentence	Leader Law Group

HIS HONOUR:

1Mina Saad, you have pleaded guilty to two charges of theft.  The total amount you stole exceeds a quarter of a million dollars.  Your thefts are set out in Schedules A and B of the Indictment which reflects 43 instances of dishonest transfer of funds from your employer to yourself.

2The maximum penalty for theft is 10 years' imprisonment.

3The charges reflect the course of conduct you engaged in between 21 September 2015 and 22 December 2016 during which time you stole from your employer on a regular basis.

4     You were employed as an accountant at Polivac International.  The owner of Polivac, Mr Antonious, also runs another company by the name of Tellavari Bakehouse Pty Ltd, which operated out of the same premises.

5     You were employed by Polivac for barely a month when you started stealing large sums from both companies by transferring funds to your accounts in a fraudulent fashion.

6     The details of your offending are set out in the Summary of Prosecution Opening for Plea which is Exhibit A and forms part of these reasons for sentence.

7     The quantum of your theft makes your offending extremely serious.

8     The impact upon the companies you worked for, and accordingly Mr Antonious, the proprietor, was significant.

9     In a Victim Impact Statement read to the Court, Mr Antonious outlined the impact upon him personally as well as the very significant impact upon his businesses.  The two are intertwined, of course.  Your extraordinary fraud left the companies in a dire financial predicament.  The consequent effect on Mr Antonious' business reputation, relationship with customers, suppliers and financial institutions led to severe anxiety, stress and psychological ill health.

10  You left your employment at Polivac in December 2016. The offending ceased in October 2016. Your dishonesty was discovered by the company's new accountant in March 2017. The matter was reported to police in July 2017.  You were interviewed by police on 30 November 2017. You made a "no comment" interview.  You were charged on that day.

11  You were committed for trial by straight hand up brief on 13 June 2018.  You entered your pleas of guilty on 12 July 2018.  Your plea had been listed on two occasions prior to my hearing the matter.

12  In the period between your interview and the date of the plea hearing before me you had repaid approximately $23,000 of the monies you stole.  The outstanding amount is in the vicinity of $230,000.

Personal Circumstances

13  You are 32 years of age, having been born in Alexandria, Egypt, in February 1987.  Your father left the family home when you were aged 5.  Your mother was a victim of domestic violence, much of which was witnessed by you.  You had some contact with your father up until the age of 11.

14  You have had no subsequent contact with your father. Your deep-seated sense of abandonment and sadness at the loss of a father figure in your life has been a source of anger, depression, puzzlement and isolation for you.  In the opinion of Mr Cummins, forensic psychologist, your reaction to the ongoing loss of a relationship with your father has been a formative one in your life and is the origin of what he diagnoses as an adjustment disorder.

15  You came to Australia when you were aged 16 with your mother and sister, both of whom supported you in court.  You arrived in Melbourne on your 17th birthday.

16  You have felt very keenly your responsibility as the 'man' of the family.  I am told, and accept, that aside from that natural feeling there are strong cultural reasons which have caused you to take very seriously your responsibility as the adult male in the family unit.

17  Your sister, Roura Saad, provided a written reference for me, and writes in part:

'Even though Mina is younger than me in age, I never felt like I was his older sister.  For as long as I can remember, Mina has always been the support and backbone of our family, and has always been there for me.

Mina and I grew up without our father in our lives.  This was extremely hard for us.  Our mother raised us by herself.  It was even harder moving from Egypt to a completely different country in 2004, and having to start afresh. Throughout it all, Mina didn't ever make me feel like I am missing anything. He was, and is everything to me; my brother, my dad, my best friend. I always took his advice when I need to make any decision, and he would stop anything he was doing to help me whenever I was struggling.

Mina looked after my mum and I in every way you could think possible.  He worked two to three jobs at one time when he was in high school and university.  He would go to school in the morning, and then start work at a petrol station at 7 pm. Some days he would work all through the night, and go straight to school without sleeping.  He did all that so he could help my mum, who is a single mum, raising two kids in a foreign country.  He wanted to make sure that we had a roof over our head, food on the table, and didn't want to see my mum struggle.  He took responsibility of both of us, and became the man of the family at a very young age.  Instead of enjoying his youth and going out with his friends, he worked extremely hard, and extremely long hours so my mum and I didn't have to. With all of that, he went through high school, finished his accounting degree, and completed his CPA so that he can start setting up for his own future.'

18  I also received a reference from Father Arsanios Saleeb, also on this topic of your assistance to your family, he wrote:

'Since meeting Mina back in 2005, I found him to be an extremely helpful person, often going above and beyond to help others.  He is a selfless young man, and this is exhibited daily, if in no other way than by his commitment to his mother and sister. Mina has had to grow up fast.  He has felt the pressure and responsibility of a migrant family and having to step up as a ‘male head of the family’.  Mina has had to be the replacement ‘male head’ of his family, providing financial support for his mother and sister.’

19  Father Saleeb went on in the same vein.

20  I've taken into account your background, and in particular your good character as displayed by your commitment to your family, in particular your mother and your sister, in the years leading up to your offending.

21  You completed the equivalent of Year 12 in Egypt.  You completed Years 11 and 12 in Melbourne, at St Mary's Coptic Orthodox College in Coolaroo.  After passing Year 12 well, you attended La Trobe University and completed a three year accounting degree, graduating in 2009.

22  During your secondary schooling, and university years, you worked long hours often nightshift as a cleaner; as a contractor in administration; and other jobs as we've heard.  You did so in order to support yourself, but also to support your family.

23  After completing your accountancy degree, you worked as a contracted junior accountant, or accounts officer, in various short-term roles.  When you were aged around 23, you obtained your first full-time employment, and you were employed, initially, as a temporary accounts officer and then as a financial accountant with Europcar at Tullamarine.

24  From the age of 27, you worked for a couple of years as an assistant accountant with Slaterry Australia, a construction estimation company.

25  From there, you became employed at Polivac, under the supervision of Mr Antonious.  You started work for Mr Antonious in late September 2016.  As I have stated, within a month you were stealing from him.  You told Mr Cummins:

'Because I was having a tough time with my ex, and by then I'd been associating with the wrong crowd, and I'd become involved in gambling and drug use. When I was put off, I was feeling very guilty about the money I'd stolen from work. From when I first started stealing the money, I knew what I was doing was wrong, but I was unable to control myself.  Most of the money I stole went into gambling, although some of it went into drugs.'

26  That was part of the explanation you gave to Mr Cummins during his consultation with you.

27  Subsequent to your departure from Polivac, I was told that you sold an investment property, using the funds from that to start up a pop-up cafe in Camberwell, which you operated for some time, until a difficulty with the police arose.  That cafe closed in August 2017.

28  You did some casual work for your brother-in-law in a car rental business, until February 2018.  Then you started working in the health and fitness industry, and you've continued work in that industry, getting yourself qualified as a personal trainer, and you've got to a stage of managing the gymnasium.

29  I heard from Mr Carmine Vinci on the plea as to the value he places in you as an employee. Furthermore, I heard strong evidence from him, as to his view as to your strong prospects of rehabilitation, and his view that you have recovered, or are at least in remission from the gambling and drug issues which blighted you in 2016.

Evidence on Plea

30  You gave evidence on your plea.  Your explanation for your offending relied upon several factors:

i)       Your upbringing, which I've touched upon.  You have felt that you have been under considerable pressure in your teenage and early adult years to live up to the expectations of yourself, your family and your cultural sensibilities arising from the absence of your father;

ii)      Your relationship breakdown with your fiancée, who I was told is related in some way to Mr Atonious;

iii)      You felt depressed and emotionally vulnerable at the time, consistent with Mr Cummins’ assessment of Adjustment Disorder with mood instability;

iv)      You developed a gambling addiction. There was considerable support for this proposition in the materials;

v)      You developed an expensive addiction to cocaine and methylamphetamine;

vi)      In your words, you 'weren't thinking straight' which I took to mean your judgement was affected and you weren't yourself as a result of all of the above factors.

31  You gave evidence as to your remorse.  You stated that you wanted to pay the money you have stolen back to Mr Antonious.  You told Mr Antonious that he was like a father to you and that you were very sorry.

32  Aside from your current strong work prosects, another positive in your life arises from the matters raised in the reference, which is in statement form, of Marina Gerges, and I accept those matters, and take those matters into account.

Breach of Trust - Gravity of Offending

33  You were employed as an accountant.  As you stated on the plea, you also had a particular personal relationship with Mr Antonious.

34  The most obvious serious feature of your offending is that it constitutes a breach of trust.  Employers must be able to conduct their business trusting those that they have employed to be honest, particularly where matters of accounting, banking, paying invoices and so on are concerned.

35  You breached that trust on 43 occasions over a 13 month period not long after you first walked through the door, to the tune of $256,000.

36  Approximately $115,000 was wasted pursuing your gambling addiction at Crown Casino.  No doubt significant sums were also wasted on drugs.  During your evidence on the plea, Counsel for the Prosecution, Mr Hardjadibrata, put a number of photographs to you - which became Exhibit C.  These photographs depict you on vacation with friends in locations such as Dubai and Thailand during the charge period or at the tail end of it.

37  These photographs provide a compelling visual account of what sort of lifestyle you were either pursuing or had aspirations to pursue during your offending.  You have stated yourself that you were associating with the wrong peer group during your offending, and your descent into gambling addiction and drug abuse was an aspect of your peer group's activities.  

38  The photos show that on the particular occasions the photographs were taken you might be said to be living the high life - on Mr Antonious' companies' funds.  Whilst it has been said that 'a picture paints a thousand words,' I have been cautious not to read too much into a handful of photographs and I have certainly not dismissed your accounts as to your mental state, nor the evidence and opinion of Mr Cummins on the basis of them.

Evidence of Mr Cummins

39  Turning to the evidence of Mr Cummins, who gave evidence on the plea, and two of his reports, one dated 13 March 2019, and the second an addendum report dated 22 August 2019, were tendered as exhibits on the plea.

40  The essence of Mr Cummins' reports and opinion are essentially not challenged, but it's the conclusions to be drawn from it, or the endeavour to tie down exactly what arises from his findings, or the consequence of them, is what has been in issue.

41  In his March 2019 Report, Mr Cummins wrote:

'On his account [that is, your account, Mr Saad] he started feeling depressed around mid-2015 when he began to appreciate that there was ongoing turbulence with his then fiancée. That relationship eventually broke down. His comments at interview also indicates he draws a nexus between the fact his relationship with his ex-fiancée came to an end, and the fact he last saw his father at age 11, and therefore feels angry and confused about the fact he has no ongoing relationship with his father.'

42  He went on to say that at the time of the offending, it was his opinion that you were suffering from symptoms of an Adjustment Disorder, indicative of the turbulence and then the ending of your engagement.

43  He went on to say that the Disorder was undiagnosed, and therefore untreated when you were offending.  He said:

'In my opinion it is very probable the breakdown of his relationship with his fiancée did trigger his illicit drug use and his gambling, which in turn quite quickly triggered his offending behaviour.'

44  Mr Cummins stated:

'Based upon my assessment of Mr Saad, it is very probable his mental health would deteriorate significantly if he is incarcerated.'

45  He assessed your behaviour as being situationally motivated, and out of character.  It is his opinion that your risk of reoffending by way of committing a further offence of dishonesty is low.

46  In Mr Cummins' opinion, at the time of your offending, your perception, judgment and reasoning ability was impaired as a result of you feeling depressed as a result of the ending of your engagement to your fiancée, and because you had still not adequately come to terms with having no ongoing contact with your father.

47  In his addendum report on 22 August, Mr Cummins expanded upon the impact of a custodial disposition upon your mental health, and I accept those matters.

Submission: Mr Bolger

48  Your counsel, Mr Bolger, made submissions that I ought moderate the sentence according to a reduction in your moral culpability that arises due to a nexus, or causal connection between an impairment you were suffering at the time, and the offending, in accordance with the principles of Verdins.

Verdins Factors

49  Whilst I accept you were suffering from an Adjustment Disorder, as described by Mr Cummins, I am unable to accept that there was a causal connection between that impairment, such as it is described, and the offending.

50  The nexus between the suggested impairment and the offending was not clearly articulated beyond the opinion that your judgement was affected as a result of your ailment.

51  Furthermore, the fact you were suffering a gambling addiction and cocaine and methylamphetamine addiction during the offending are factors which were not clearly identified or delineated in any satisfactory way when it comes to the question of causal factors for your offending.

52  I accept that there were a constellation of factors which were operating on your mental state during the latter part of 2015 and the end of 2016 that contributed to you acting in such a grossly dishonest manner.

53  Your actions were otherwise out of character.

54  The sheer frequency, duration and enormity of your dishonest conduct tends to overwhelm the significance of your Adjustment Disorder and its effects on your judgment in any assessment of moral culpability.  Gambling and drug addiction have a much clearer nexus to the offending, and help explain how you could engage in such gross dishonesty, contrary to your previous character.

55  As to hardship in custody arising from what Mr Cummins has described, I do accept that there is some mitigatory effect available to you.  In particular, given this is your first time in custody, and together with all of the other matters personal to you, including your background, I accept that your experience in custody will be extremely difficult.

Plea Guilty

56  Your plea of guilty was entered subsequent to committal but it was clear that this was a matter which would resolve at some point.  I take the saving to the community as a result of your plea of guilty, thus avoiding a trial, into account.  I also accept your plea of guilty is indicative of some remorse.

Remorse and Restitution

57  I say 'some remorse', because I find that I am unable to consider your remorse to be of a high level.  That finding is despite your evidence on the plea.  I have taken into account your efforts at restitution in your favour - although it must be said these efforts have fallen well short of making a meaningful dent in the amount stolen.

Prospects of Rehabilitation

58  I do consider you have reasonable prospects of rehabilitation.  I accept that you feel appropriate shame for your conduct.  Your level of education, your work history, your plea of guilty, your lack of significant criminal history and your good conduct whilst on bail, in particular your family support and support of your partner, and some effort at restitution are all matters I take into account in finding that you have reasonable prospects of rehabilitation.

Sentencing Purposes

59  In sentencing you I take into account the need to denounce your conduct, to punish you appropriately and to deter you from committing further offences.  I must also take into account general deterrence and the protection of the community as well as your rehabilitation. In a case of this kind, general deterrence is a factor which carries very significant weight.

60  I had you assessed for a Community Corrections Order, and I've received the report.

61  I accept the matters set out in that Community Corrections Order report, and the matters reported as coming from you.

62  In giving appropriate weight to each of the factors I must have regard to, I am persuaded that the purposes for which the sentence must be imposed can be achieved by a sentence that combines a term of imprisonment with a lengthy Community Corrections Order.

Sentence     

63  I sentence you as follows, you can now stand, Mr Saad.

64  On both charges before me, I will impose an aggregate sentence as they clearly form part of a series of the same or similar offending.

65  On Charges 1 and 2 of theft, you are sentenced to be imprisoned for 12 months.

66  In addition, I impose a Community Corrections Order of two and a half years' duration.

67  There will be a condition to perform 200 hours of unpaid community work pursuant to that order.

68  In addition there are treatment conditions:

You are to be assessed for treatment and rehabilitation programs in relation to drug use.

You are also to be assessed for treatment and rehabilitation in relation to mental health.

You will be subject to supervision.

I direct that up to 50 hours of the compliance with the treatment conditions can be credited towards the work component.

69 I declare, pursuant to s.18 of the Sentencing Act, that you have served 12 days as pre-sentence detention of this sentence.

70 Pursuant to s.6AAA of the Sentencing Act, I declare that were it not for your plea of guilty I would have imposed a sentence of 3 years imprisonment and directed that you serve a non-parole period of 2 years.

71  I make the compensation orders that are sought - that is, there is two:

One of them addressed to Tellavari Bakehouse Pty Ltd in the sum of $34,353.50.

The other in relation to Polivac International, $201,313.81.

72 Furthermore, I make the order pursuant to s.464ZF of the Crimes Act.  That application was not opposed by you.  I make the order due to the seriousness of the offence, and the sum involved.  The order is also in the public interest, and I will sign that order now.

73  Now, I must tell you, Mr Saad, that you will be asked to provide a scraping from the mouth in relation to that order, and if you do not comply, reasonable force can be used to take that forensic sample.

74  You are now going to be shown the Community Corrections Order, and you'll be asked to sign it, if you consent to it, and then I will sign it.

75  You will get a copy of the order - thank you.  I will sign it now, and then we will invite you to sign it, Mr Saad.  You will get a copy of this order.  It has the conditions on it that you will be required to complete.

76  The order must be complied with.  You'll be asked to enter into the order once you've completed the custodial part of the sentence, and you must comply with those conditions of the Community Corrections Order.  If you breach it in any way, by committing further offences, or failing to complete the conditions, you'll be back before me to be resentenced.  Do you understand that?

77  OFFENDER:  Yes.

78  HIS HONOUR:  Right.  You're now going to be shown the order.

79  Thank you.  You will now get a copy of this, Mr Saad.  Mr Hardjadibrata might have a couple of minutes just to explain to your family.  I'm going to leave the Bench, and take the unusual step of allowing you, for a minute or two, before you're taken down.  Ordinarily, I'd have you sent down before I leave the Bench.

80  But just to explain to you, you've got a sentence of 12 months imprisonment, less the 12 days you've done since the date of the plea.  Upon your release, you'll then be on a Community Corrections Order for two and a half years that has some fairly onerous conditions.

81  Now, Mr Hardjadibrata, is there anything I've overlooked?

82  MR HARDJADIBRATA:  No, Your Honour.

83  HIS HONOUR:  All the orders are there?

84  MR HARDJADIBRATA:  Yes.

85  HIS HONOUR:  I might also indicate, Mr Saad, we've received an email from your solicitor, apologising and stating that their understanding was that there wasn't a requirement for anyone to appear.  They could arrange for an agent's appearance if necessary, and so I accept that apology from your solicitor, but of course, I urge you to, if you wish to, to get legal advice now that you've been sentenced.  Understand that?  Right.  Thank you, Mr Hardjadibrata.

86  MR HARDJADIBRATA:  As Your Honour pleases.

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