Director of Public Prosecutions v Sayhood

[2014] VCC 2188

IN THE COUNTY COURT OF VICTORIA Revised
(Not) Restricted
Suitable for Publication

AT MELBOURNE
CRIMINAL JURISDICTION

CR 14-01603

DIRECTOR OF PUBLIC PROSECUTIONS

v

DIEA SAYHOOD

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JUDGE:	HIS HONOUR JUDGE SMALLWOOD
WHERE HELD:	Melbourne
DATE OF HEARING:
DATE OF SENTENCE:	16 December 2014
CASE MAY BE CITED AS:	DPP v Sayhood
MEDIUM NEUTRAL CITATION:	[2014] VCC 2188

REASONS FOR SENTENCE
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Subject:
Catchwords:
Legislation Cited:
Cases Cited:
Sentence:

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APPEARANCES:	Counsel	Solicitors
For the Director	Ms K. Aaskov
For the Accused	Mr B. Newton

HIS HONOUR: 

1Diea Kardan Sayhood, you have pleaded guilty to two charges of obtaining a financial advantage by deception and one charge of the illegal use of false documents.  Those crimes carry maximum penalties of ten years' imprisonment.

2You are nearly 40 years of age.  I accept that you made an early plea of guilty, despite denials in a record of interview and whilst remorse is problematic, I am certainly prepared to accept that you wish this had not all happened.

3You must, of course, get the utilitarian benefit of that plea of guilty.  Trials such as this are time consuming and your plea has advanced the course of justice.  You do have prior findings of guilt, which on the face of it are not of great significance, but because of the nature of one of them, they become of significance to this sentencing process.

4The prior convictions from 2004 relate to sexual offending and other than showing you have a prior knowledge of the criminal justice system, they do not affect you in this given situation.

5The prior convictions that you have from Adelaide in June 2011 are of concern.  I do not know when the offending occurred but they involved the use of a false driver's licence with your photograph on it, which as I read the Crown summary here will become evident as a very similar modus operandi, if it can be put that way.

6The circumstances surrounding this offending are somewhat cloaked.  It is difficult to work out what this is really all about, Mr Sayhood, as I indicated clearly to your counsel of explanations I have been given, I do not accept, but I make it very clear that I am not making any findings adverse to you in circumstances where there could be all sorts of pressures in the background, which I am simply not aware of and nor is your counsel.

7In any event, the offending was as such.  On 18 November 2013 ‑ ‑ ‑

8MR NEWTON:  Your Honour, I do apologise, the interpreter is just very gently indicating that she is struggling to keep up with the interpretation of the sentencing remarks.

9HIS HONOUR:  Thank you for that.  I am just going to read the Crown opening, she can be given a copy if you want.

10MR NEWTON:  Yes, certainly, Your Honour, I can attend to that.

11HIS HONOUR:  What I will do, Madam Interpreter, for the next few minutes, I will just be reading from the Crown opening, so we will get you a copy of it.  I will not be reading all of it, he has heard it before, he had that read to him yesterday so for the next couple of minutes, I will not be saying anything he does not already know.  But it is all coming off that document you have now got.

12On 18 November 2013, you went to the ANZ Bank in Knox and claimed to me a Mr Afzal Azzizi.  You produced false documentation and used it to open a bank account.  That is Account 1.

13On 10 December 2013, you presented to the National Australia Bank in Coburg, again claiming to be Mr Afzal Azzizi.  You again produced false documentation and used it to open a National Australia Bank account in that name.  You deposited $50 into that account and ordered a chequebook for it.  A chequebook was posted to that address that you had given on 16 December 2013.  That is Account 2.

14At approximately 20 past 11 on 19 December 2013, you attended the ANZ Bank in Greensborough and deposited $1,000 cash and a National Bank cheque drawn on Account 2 in the sum of $87,000 into Account 1.  At 11.30, you attended the ANZ Bank in Greensborough and withdrew $1,000 in cash from Account 1.

15On 20 December 2013, you attended the ANZ Bank in Parkmore and closed Account 1.  You transferred the balance of Account 1 into a new ANZ account, that is Account 3.  That deposit and transfer into a new account in the same name bypassed the usual ANZ Bank practice of waiting several days for a cheque to clear.  Accordingly, the funds were transferred as cleared.  That gives rise to Charge 1, obtaining a financial advantage by deception.

16Between 20 December 2013 and 22 December 2013, you proceeded to make a series of transactions, draining the account of that money.  The largest of the transactions were $15,697.67 at Travelex, $8,604.65 at Travelex, $29,069.77 at Travel Money, $19,071.02 at Travel Money and $11,927.49 again at Travel Money.  Those, it is conceded as I understand it, amounts were all given to you in foreign currency.  There were also smaller transactions totalling thee and a bit thousand dollars.  The ANZ estimates its loss at $87,637.10.  I have made a compensation order in that amount.

17On 30 December 2013, you attended the ANZ Bank in Keilor, claiming to be a Mr John Lakis, L-a-k-i-s.  You again produced false documentation and used it to open an ANZ account in that name.  That is Account 4.

18On the same day, you attended the ANZ Bank in Altona North, claiming to be Mr Gazmor Nurat.  You produced false documentation and used it to open an ANZ account in that name, which is Account 5.

19On 9 January 2014, you attended the ANZ Bank in Airport West and opened a second bank account in the name of John Lakis.  Again, you produced false documentation and used it to open an ANZ account in that name.  That is Account 6.

20On 10 January 2014, you attended the ANZ Bank in Croydon and opened a second bank account in the name of Gazmor Nurat.  You again produced false documentation and used it open an ANZ account in that name, which is Account 7.

21At 11.49 am on 6 February 2014, you attended the ANZ Bank in Williamstown and deposited $300 cash and a National Australia Bank cheque drawn on Account 2 in the sum of $187,700 into Account 4.  At six minutes past three on 6 February, you attended the ATM at the ANZ Bank in Carrum Downs and withdrew the $300 in cash from Account 4.

22On 7 February 2014, you attended a bank in Williamstown and closed Account 4.  You transferred the balance of Account 4 into Account 6, that is the second Lakis account.  Again, the deposit and transfer into the new account in the same name bypassed the usual ANZ Bank practice of waiting several days for a cheque to clear.  Accordingly, the funds were transferred as cleared funds.  That gives rise to Charge 2, obtaining financial advantage by deception.

23There is a list of a number, if not all, of the transactions that occurred over the next two days where the account was drained of that money.  By far the bulk of that draining of $187,000 was in foreign exchange at Travelex and such places.  There was also some purchasing at Omega in Southbank, some $9,000, $8,000 at Medina Jewellery and other particular purchases.

24I noted, as I indicated to your counsel this morning, that the last of the transactions appeared to have occurred at Melbourne Airport.

25You endeavoured to, on 10 February, withdraw money at Travelex at Melbourne Airport and were refused.  You grabbed the identification and left.  You were subsequently interviewed by police and made a partial no comment and denial record of interview.  Obviously you are entitled to do that and I do not hold that against you.  You have pleaded guilty and I have already been through that.

26Charge 3 relates to the using of the false identification in the names of Afzal Azzizi, John Lakis and Gazmor Nurat.  The indictment points out that the false identification used involved Victorian driver's licences in those names.  As I have indicated, your prior history in terms of an admittedly bond from South Australia in 2011 involved a similar if not identical form or means of deception.

27There are no victim impact statements and I have made all the other orders.

28The offending has to be regarded as very serious, in my view.  Calls for the application of general and specific deterrence, denunciation and appropriate punishment.

29As I indicated to your counsel, I do not accept the detail of how this all came about that was put to me from the Bar table, but I make it very clear, this is a sophisticated form of fraud.  Whoever organised it had an understanding of the workings of certainly the ANZ Bank and I would be satisfied that that was not you.  Accordingly, I am not sentencing you as the organiser or ring leader of all this, but as it stands at the moment, you are the only person identified.  You have not particularly identified any other person and I sentence you simply for your role, which was on any basis, a very significant one.

30As I indicated yesterday, a custodial sentence is inevitable and it must be one which reflects the seriousness of the offending.  However you look at it, that is a lot of money and none of it has been recovered.  Where it all ended up is anybody's guess.  I am told from the Bar table that you gambled your share and used it on Ice, that may or may not be the case and I am certainly not going to speculate.

31Tendered on your behalf were a number of documents.  There is a report from Professor Andrew Carrol and there were references from your partner and mother of your young child, as well as people who have known you for an extended period of time.  I have read those references carefully and I understand that the authors are here in court today to support you, and I take all those matters into account.

32The first matter that I will deal with is that by reason of your offending and by reason of this sentence of imprisonment, it is very likely that you will be deported.  I accept that in your mind that deportation is a certainty.   There is an affidavit from Professor Gerkin about how all that works.  Whether you would be deported back to Iraq from whence you came, or somewhere else or kept in detention here is somewhat debatable.  That seems to be saying that you would not be deported to a situation where it was not regarded as being safe, but they are matters that have got nothing to do with me, and I can only take them into account in the way that I am about to outline.

33The decision in the Court of Appeal of Guden v The Queen outlines the principles and I take into account in this way.  The sentence that you undergo, you will do in the expectation, or in your mind certainty, of being deported.  I take into account the fact that you will undergo that sentence in that knowledge, that you will not be free during that period of time to care for your partner and your very small child.  I take into account the fact that this sentence of imprisonment, may and very likely it will result in you losing the opportunity of settling permanently in Australia and residing here.

34As to what would occur after you are deported, if indeed you are, is a matter of speculation.  I also accept that gaol for you will be more difficult in any event because of your child having recently been born and your inability whilst in custody to care for that child and for your partner.  I have read her reference as to your capacities in that regard and I am certain that you will be sorely missed.

35So insofar as deportation is concerned, I have given it significant mitagatory effect in the sentence that I am to impose, and there was lengthy discussion yesterday with your counsel about all that and I do not need to go into it all again.

36I then go to your history.  Yours is a very difficult history and one where I accept that you have had a very difficult life.  You were born in Iraq, near Baghdad.  Your father was a pastry chef and your counsel, in detail yesterday, took me through the circumstances of your life.  In a family situation of opposition to the Hussein regime, you were recruited, if that be the fair word, into that organisation.  You were ultimately, in 1998, arrested for putting up posters critical of that regime and you were imprisoned for 45 days.  You have reported to Dr Carrol, the psychiatrist who saw you, that you were tortured and indeed treated very badly.  Your father, who had been a pastry chef, and is spoken of very highly in the references that I have been given, was able to pay your way out of it.

37The family remained under daily threat, I am told.  You fled to Iran through Kurdistan.  You went with wife and child, mother and as I understand it, I might have these things not quite right, two brothers.  Your father and another brother were both tortured and your father was crippled, though remained where they were.  You eventually paid people smugglers to get you to Australia and after real difficulties, you arrived at Ashmore Reef on 5 January 2000.

38Your younger brother was with you.  You were taken to the Woomera Detention Centre and you were kept there for an extended period of time.  People who have been in court today were released earlier.  They had come with you on the dreadful flight.  I am told, and there seems to be no reasons to doubt this, that one of the reasons you were kept in detention was the younger brother and for reasons of your mental health.

39In any event, you were ultimately released and came to Victoria and lived in commission flats in the Atherton Gardens.  In 2003, you just found out that your father and your brother were dead.  In 2012, you found out that your wife and son back in Iran, at that stage as I understand it, had been killed.

40Around about that time, I am told, that you were gambling and that you became problematic insofar as that was concerned and you were commencing and using Ice.  I am told that that usage increased, though I have made it clear during the course of the plea, I have got some concerns about all that.  You had been at some earlier stage, you say, diagnosed as having schizophrenia.  Sometime in 2012, despite being on a mental health bond in South Australia, you stopped taking your medication.

41However, in these circumstances, it cannot be said that there is a culpability reduction because of the principles in Verdins.  There is no linkage between what conditions you may have had and this particular offending.

42That does not do justice to what has happened in your life but it amply sets out the situation in which you fall to be sentenced.  Your counsel very forcefully pointed out the various authorities about people with disadvantaged backgrounds and I am very well aware of them.  There is amply the principles contained in Takova, Tomguenen and Leach and they are matters of which I am acutely aware.

43There was a report tendered from Dr Carrol, a consultant psychiatrist, and I have taken that entire report into account.  A number of matters that he referred to was that your major preoccupation was the possible prospect of imprisonment.  You indicated to him that the worst thing about that would be the separation from your wife and child.  As I have already indicated, I am taking that into account in this sentence.  You denied any thoughts of harming yourself or of harming others.  Dr Carrol was told by your wife that you lost around eight kilograms in weight since you had been arrested.

44An immediate question will arise with your background would be whether there is any Post-Traumatic Stress Disorder symptoms, and Dr Carrol said that there were not.  You gave him your history and he goes through the medications that you had been on.  He pointed out, and this is a report dated November 2014, that you are not being treated by a psychiatrist.  However, I have seen in Dr Carrol's report that your GP has regard you as having schizophrenia and has given medication for it.

45You told Dr Carrol that you had used methamphetamine or Ice for some time and that in 2013, after ceasing your psychiatric medications, you use had escalated to around about $600 per week.  You described to him problematic gambling.  You told him that you had not had specific treatment for either substance misuse or of gambling.  Dr Carrol then goes through the matters I have already mentioned about your history and I do not see any need to do that again.  You had circumstances where you certainly now, I accept, fear retribution if you were forced to return to Iraq, because of information you apparently gave whilst being tortured.

46You, in terms of talking about the motivation for the offending, seem to be indicating to Dr Carrol that it was for the gambling.  There is no real evidence of that, before me, but I am certainly, as I have said about three times now, not making any findings to the contrary.

47Insofar as schizophrenia is concerned, Dr Carrol said, "He reported hallucinatory symptoms however a very atypical.  In the absence of any collateral documentation, I myself am reluctant to confirm this diagnosis at this point, although cannot entirely exclude this is entirely a possibility."  He says that you appear to have been heavily using amphetamine at the time and that you were preoccupied with gambling.  Again, that is a matter of self-reporting, and I take it into account as much as I can.

48He ultimately diagnosed an adjustment disorder, a substance use disorder now in remission and a gambling disorder now in remission.  He said that your adjustment disorder placed you at risk of a more serious condition of a depressive illness if exposed to further stress.  He believed that you would be a high risk of deterioration to a clinically depressed state, should you be imprisoned and that would make prison time harder than would otherwise be the case to a significant extent.  I accept that.

49He pointed out that you appeared to be dependent on your wife and greatly enjoy time with your child, and that separation from them would be very difficult for you to bear and can have an adverse effect on your mental health.  I accept that.

50He said there is nothing to suggest that you would meet criteria for transfer to a secure hospital instead of prison, though he pointed out this is somewhat obvious to judges in this situation, that a background such as yours of torture and trauma can make imprisonment more difficult, though you express no fear of any such treatment in this country.

51In summary, he said that he believed imprisonment would pose a risk of serious deterioration in your mental health, with the likelihood of becoming clinically depressed.  As I have indicated, I accept that and take into account.

52So that is the summary of the matters in mitigation and it is a sad story indeed.  The difficulty is in circumstances such as this that you have been involved in a sophisticated dishonestly obtaining a financial advantage in a sum approaching just over a quarter of a million dollars.  I think the circumstances are such that general deterrence and just punishment force a sentencing judge into giving a custodial sentence.

53The prospects of your rehabilitation are essentially up to you.  In the end, I have no idea of what the deportation, if it occurs, will mean but I have given you the benefit of that as the extent that I can.  The risk of you reoffending, again is problematic, but it would be mere speculation on my part.  Certainly at 40, I would not regard your prospects of rehabilitation as extinguished.

54Insofar as mercy is concerned, in this situation with this sort of offending where you have been to courts before and once for, albeit, minor dishonesty, but within a similar way, I do not see that it is a situation which would excite a judge to such.

55Insofar as your small child and family is concerned, I am not sure as to what the ultimate future will be there.  However, deportation in a situation such as yours, even though the legislation more recently, as I am now told, been tightened up very much, is an inherent risk in offending of this sort.

56In those circumstances, I do not see it as a situation where there would be exceptional circumstances insofar as your wife and child are concerned.  Accordingly, I certainly take into account the difficulties that you will have in gaol knowing the circumstances in which you have left them.  But further than that, I do not see it as sufficient argument for the application of mercy.

57You have now undergone 15 days' imprisonment.  You were in for 14 days and then bailed and I take into account the fact that you are being sent back, which is a prospect that I certainly have grave reservations about, then your situation, I am afraid, the seriousness of the offending compels it as a disposition.

58There are three separate charges.  It is not appropriate, I think, in this situation to give an aggregate sentence so you will be sentenced as follows.

59On Charge 1, 18 months.  On Charge 2, 24 months.  On Charge 3, 12 months.  I direct that three months of the sentence imposed on Charge 1 and three months of the sentence imposed on Charge 3 be served cumulatively upon each other and upon the sentence imposed on Charge 2.  That gives an effective head sentence of two years and six months.  I direct that you serve a minimum term of 15 months before becoming eligible for parole.  I direct that 15 days be reckoned as having been served under this sentence.

60Pursuant to s.6AAA of the Sentencing Act, I say that so you appreciate the significance of your plea of guilty as to what would have happened, but for your plea of guilty, I would have sentenced you to imprisonment for a period of four years, with a minimum term of two and a half years.

61Are there any other orders I have to make?

62MS AASKOV:  No, Your Honour.

63HIS HONOUR:  No, you can just take him now.

64MR NEWTON:  Your Honour, just in terms of custody management issues, I just wonder if the letter of the GP in terms of his medications can be placed on the court file - on the prison record.

65HIS HONOUR:  It can be given to the officers.

66MR NEWTON:  Thank you, Your Honour.

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