Director of Public Prosecutions v Shaikh

[2020] VCC 683

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

AT MELBOURNE
CRIMINAL JURISDICTION

CR 18-02220

DIRECTOR OF PUBLIC PROSECUTIONS

v

ABDUL SHAIKH

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JUDGE:	HER HONOUR JUDGE CANNON
WHERE HELD:	Melbourne
DATE OF HEARING:	11 May 2020
DATE OF SENTENCE:	25 May 2020
CASE MAY BE CITED AS:	DPP v Shaikh
MEDIUM NEUTRAL CITATION:	[2020] VCC 683

REASONS FOR SENTENCE
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Subject:  CRIMINAL LAW

Catchwords:  Sentence – Plea of guilty – Obtain financial advantage by deception – Deliberative and dishonest offending – Trusted partner in business – Suffering adjustment disorder with mixed anxiety and depression

Sentence:Convicted and sentenced to Community Corrections Order – 2 year duration with supervision, 200 hours unpaid community work up to 50 hours of which can be satisfied by equivalent time spent in relation to treatment and rehabilitation and mental health treatment and rehabilitation – s.6AAA Sentencing Act 1991 declaration – Ancillary order - Compensation

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APPEARANCES:	Counsel	Solicitors
For the Director of Public Prosecutions	Mr P. Pickering	Solicitor for Public Prosecutions
For the Accused	Mr S. Tovey	Stary, Norton, Halphen

HER HONOUR: 

1Abdul Shaikh, you have pleaded guilty to one charge of obtaining a financial advantage by deception which has a maximum penalty of 10 years' imprisonment.  The maximum penalty reflects the seriousness with which Parliament regards this offence and is one of the matters which I must take into account in sentencing you.  The matter was opened by the prosecution as follows.

2I was told that you are now 40 years old and on my calculation you were aged between 33 and nearly 38 when you committed the offence.  The victim in the matter is Yarra Valley Farms, that I might refer to as YVF from time to time.  Yarra Valley Farms is a wholesaler of fresh fruit and vegetables and supplies to franchisees and corporate customers.  You became a franchisee of YVF on 3 June 2013 for a five-year term.  You were not successful in your franchise and you were provided with support by YVF, being allocated a number of corporate customers for whom you were paid a delivery fee by the victim company.

3In essence, the manager of YVF, Mr Bill Kollatos, became concerned that stock was being written-off on a daily basis and became aware that your login to the ordering system which had been put in place by the victim, was being used to manipulate the invoicing.  This involved you removing products from particular orders then re-entering these on an invoice between you and the customer which meant that YVF were not being paid for products that they had provided, and you were.

4An internal investigation was conducted by the general manager and then the matter was referred to police in October 2017.  Police investigations revealed that on over 2,000 occasions between 21 November 2013 and 17 November 2017, you had deleted items of produce on the victim's login system then created separate invoices where such items were included, resulting in you being paid personally for items where moneys were owed to YVF.

5The total obtained by you due to such deceptions was $89,688.36.  You were arrested on 17 November 2017 and interviewed by police.  You made no comment answers to allegations of dishonesty but you admitted that you did enter the computer system to print invoices and you printed the invoice and were able to adjust pricing if needs be.

6Mr Shaikh, your offending is serious and deserving of a punishment which is just in all of the circumstances.  Your conduct must be denounced.  You behaved in a deliberative and dishonest fashion over and over again, over a
four-year period.  This was no 'set and forget' exercise on your part, but one where you chose to alter details in a fraudulent fashion over 2,000 times, so that you could be paid money to which you were not entitled.  You did not see the light at any stage and stop what you were doing.  Rather, it took police involvement to make you stop.

7It seems to me that you have sought to justify and rationalise your behaviour because of your perceptions regarding the behaviour of the franchisor.  This concerns me in respect of your level of insight as to the seriousness of what you did and the impact that your offending has had upon the victim.  If you felt aggrieved by any aspect of the franchise arrangement, there were legitimate avenues for you to pursue to seek some redress rather than to behave as you did.  It is evident from the way in which the login and invoicing systems were configured that there was a good deal of trust placed in people in your position, and you have breached that trust.

8While I find that your lifestyle was not extremely extravagant as a result of the offending, I have had some difficulty in accepting that you were in financially dire straits because of the debt you said you incurred from buying into and running your business.  Your account of your financial situation does not square with someone who was able to buy two properties during the period of the offending.  One of these properties was your home and the other was an investment property where you had installed tenants.  While the values of the properties and the deposit sums were not the greatest one has ever seen, you were in a rather good position at the time that you purchased these in my view.

9In sentencing you, I must also factor in the total of the financial advantage that you received as alleged by the prosecution.  It is a significant sum but, again, it is not the greatest sum that one has ever seen in these courts.  On the other hand, your offending has had a very personal and disturbing effect on the victim to which I shall refer in a moment.

10In sentencing you I take into account the impact on the victim, which has been considerable.  Mr Kollatos read the admissible parts of his victim impact statement  aloud at the plea hearing.  He spoke of how he had built his business from scratch and spoke of his goals in respect of that business, one of which was to provide opportunities for someone such as you.  He regarded you as a 'trusted partner' and that, as with all franchisees he had trusted you to do the right thing.  He spoke of the significant strain on resources that he and his team had expended since your arrest, spending inordinate periods tracing your offending over a four-year period.  He said that as the scope of your offending became evident, he and his team were left in disbelief and felt betrayed.

11He said that things became even worse for him as the need to trace your offending took focus and energy away from his business, a company that he had devoted most of his working life to.  He said that he also lost his drive and struggled to face the day on a number of occasions.  In fact, on some days, he could not face it and went back home to bed.  He said that he was also deprived of a great deal of time with his wife and young children, because of what you had done and the need to investigate it.  He spoke of the pressure and stress he had suffered which affected both he and his family. 

12He experienced stress, anxiety attacks and sleepless nights and on occasion had found it hard to breathe.  He needed the help of an on-call nurse and/or his wife to console him, saying that his feelings of self-worth and pride had been depleted.  He has become concerned about his physical health and wellbeing which has resulted in him having regular check-ups due to his heightened anxiety.  He said that your conduct had left a negative mark on his business and very much on his family and on himself.  He said that it would continue to leave a scar with him that he needed to continue to work through.  Mr Shaikh, these are the very real and ongoing effects that your offending has had on the victim in this case, and I hope that you take these fully on board.

13In sentencing you, I take into account your plea of guilty, and the stage at which it was entered, although I have also factored in that you were apparently always prepared to plead guilty in respect of your offending, but the issue was the extent of the financial advantage you obtained.  In the circumstances, I allow for a significant discount in the sentence you would otherwise receive, as although you conducted a committal hearing, this was in respect of the issue to which I have just referred, and you were not contesting the offence itself.  Further, you have saved the witnesses the time and trouble of running a trial and you saved the community the considerable expense and time of running a trial.

14I accept that you have expressed shame and guilt in relation to your offending but in view of your attitude toward the victim and in my view your tendency to victim blame, your remorse is limited to how the case has affected you and yours rather than anyone else.  It is to be hoped that in time you develop better insight into the seriousness of what you did and remorse as to how your actions have impacted upon the victim. 

15I take into account your background which was set out in Mr Tovey's written outline.  You were born into poverty in Mumbai, India, and you parents worked long and hard to provide for you and your siblings.  You were able to attend school and you were a talented student.  You were able to attend Mumbai university due to your good high school grades and worked extremely hard during your university years.  You studied by day and worked by night, graduating with a Bachelor of Physics.  You have a solid work history both here and in India.  You also worked in parts of Africa for a time.  You moved to Australia when you were 30 years old and have worked in sales for a good part of your working life.  In 2012 you moved to Melbourne and married.  You have one child and your second child, as at the date of the plea hearing, was soon to be born. 

16In 2013 you decided to purchase a franchise with the victim company.  I have taken into account your explanation as to the lead up to and the context of the offending insofar as I can.  On any view of things, your experience of the franchise was not smooth sailing, but I note with great concern that you were only four months into the business when you commenced offending.  Also, although you apparently borrowed money from your brother, said to be $150,000 in written submissions which was confirmed today, in order to fund you purchasing the franchise, rather than seek to repay your brother any income, whether ill-gotten or not, you purchased two properties instead.  In this regard I was told that you hoped that the second property would increase in value to such an extent that you would be able to sell it at a profit and repay your brother this way. 

17At the plea hearing, Mr Tovey said he would see if he could obtain some documentation in respect of this loan from your brother.  I have now received some documentation, although in my view it is not entirely satisfactory and the timing of the various sums of money does not really add up to the assertions made at the plea hearing which concerns me again as to your lack of insight and also goes to your moral culpability overall.  In your favour you have no prior convictions; nor do you have any subsequent matters alleged against you.  Despite the duration of your offending, on the basis of your lack of prior convictions and character references I find that you are of otherwise good character.

18In sentencing you, I take into account in a general way the psychological reports relied on, and accept that any period in gaol served by you would be harsher than might otherwise be the case because of the opinion of Mr Hanley that you are suffering from adjustment disorder with mixed anxiety and depressed mood.  Further, I factor in that time in gaol would be harder for you than others because this would be your first time in gaol, and also because of the COVID-19 restrictions and anxiety relating to the prospect of an outbreak whilst in prison.  Further, as you are the sole bread winner, time in custody would be harsher because of your concern for your wife and children without you.

19I have also factored in the assessment of risk by the psychologist which rates you as being at low to moderate in terms of risk of reoffending.  In my view, due to the nature of the offending, your limited insight and remorse but also factoring in your lack of criminal history, preparedness to plead guilty, solid work history, strong family ties, as well as the salutary experience of coming before the courts and your otherwise good character, I regard your prospects of rehabilitation as being fairly good, and I place fairly minimal weight on specific deterrence and protection of the community.  However, I must place strong weight on general deterrence in a bid to deter others from offending as you have.

20I must also factor in delay in the ways that your Counsel submitted, that is, that during the past period of about two and a half years since your offending was detected, you have used that time to demonstrate your ability to rehabilitate, in that you have not committed any further offences, and you have been prepared to seek psychological treatment.  Also, during that period you have had the anxiety of these proceedings hanging over your head.

21Mr Tovey also referred me to current sentencing practice, referring me to a table of cases in this regard.  In cases which have some similarity to yours, community corrections orders have been imposed, however, current sentencing practice is but one consideration and not a controlling one. 
Mr Pickering for the prosecution submitted that a community corrections order in combination with a term of imprisonment was warranted in your case, although he frankly and quite properly conceded that it could not be said that a community corrections order on its own was outside of the range of sentences available to me.  Mr Tovey submitted that a community corrections order was warranted.

22I had you assessed for your suitability for a community corrections order, and have considered whether it is appropriate for you to undertake such an order in combination with a gaol term.  The law provides that a period of imprisonment must be the penalty of last resort such that if a community corrections order can adequately address all relevant sentencing considerations and the weight attaching to relevant sentencing principles then this is an appropriate disposition.  In your case, although your offending is indeed serious, I am of the view that, having regard to the matters in mitigation, and relevant sentencing considerations, that it is appropriate to impose a community corrections order without a gaol term attached.

23The community corrections assessment indicates that you are at low risk of re-offending and as such only unpaid community work is recommended, noting that you have been undertaking psychological treatment on your own.  However, I am of the view that it is necessary for you to continue with such treatment and therefore I am going to impose a mental health condition on the order to ensure this happens.  Also, I want you to be supervised on an ongoing basis.

24I hope that you mean what you say about repaying the victim in this matter as a matter of priority.  Make no mistake, Mr Shaikh, if you breach this community corrections order in any way, then in all likelihood you will be required to serve an immediate gaol term instead.  Do you understand this?

25MR TOVEY:  Sorry, Your Honour, we were on mute.

26HER HONOUR:  That is all right.

27OFFENDER:  Yes, Your Honour.

28HER HONOUR:  You understand that, yes, thank you.  Very well then, you are convicted of the offence.  First I make a compensation order which is sought by the prosecution and not opposed by you requiring you to pay the victim in this matter compensation in the sum of $89,688.36.  Next, I intend to sentence you to a community corrections order which would run for a period of two years but I cannot sentence you to such an order unless you agree to this so please listen carefully to the order that I propose. 

29Firstly, there would be the mandatory terms that apply to all community corrections orders which are, you must not commit another offence for which you could be imprisoned during the time that the order is in force.  Next you must comply with any obligation or requirement prescribed by regulation 17 of the Sentencing Regulations 2011. Next, you must report to and receive visits from the Secretary to the Department of Justice or his or her delegate. Next, you must report to the Werribee community corrections centre at 2 pm within the next two clear working days of today.

30It may well be that that reporting has to happen over the telephone.  I would advise you strongly to ring Werribee community corrections centre this afternoon to ensure that you meet your obligations one way or the other.  Next, you must let a community corrections officer know within two clear workings days of you changing your address or job.  Further, you must not leave Victoria without first obtaining permission to do so from the Secretary, the Department of Justice or his or her delegate.

31Further, you must obey all lawful instructions from and directions of the Secretary to the Department of Justice or his or her delegate.  The conditions that will apply in addition to the mandatory terms that I have just referred to would be that you must undergo 200 hours unpaid community work within the next two years and, further, that you must be under the supervision of a community corrections officer for the next two years.  Further, you must undergo mental health assessment and treatment including but not limited to mental health, psychological, neuropsychological and psychiatric treatment in a hospital or residential facility if necessary as directed by the regional manager.

32Up to 50 hours of the unpaid community work condition may be satisfied by the successful completion of an equivalent period of the treatment and rehabilitation condition.  Having heard what I propose under the community corrections order, do you consent to the terms and conditions of the order?

33OFFENDER:  Yes.

34HER HONOUR:  I need to hear you say yes.

35MR TOVEY:  Say it louder.

36OFFENDER:  Yes, we are.  Yes, we are.

37HER HONOUR:  Thank you.  I should tell you that if you do not comply with all of the requirements of the community corrections order then you will face breach proceedings before me, you will be sentenced in relation to the breach and you will be re-sentenced in relation to the charge in which case you may well be sentenced to a period of imprisonment.  I would regard a breach of the community corrections order as a most serious matter, whether it be because of further offending or because of non-compliance with any of the other conditions of the order.  Do you understand this?

38OFFENDER:  Yes, Your Honour.

39HER HONOUR:  Do you still consent to the order?

40OFFENDER:  Yes, Your Honour. 

41HER HONOUR:  Do you still consent to the order?

42OFFENDER:  Yes.  Yes, Your Honour.

43HER HONOUR:  Therefore in relation to the charge you are convicted and sentenced to the community corrections order in the terms and conditions that I have just set out.  The community corrections order will be sent to Mr Tovey via email as I indicated for you to sign.  And you will then, as I say, need to be in touch with Werribee community corrections centre to ascertain whether your first report to them, within two clear workings days has to be in person or by way of telephone.  I indicate that if not for your plea of guilty, I would have sentenced you to a total effective sentence of two and a half years' imprisonment with a non-parole period of 18 months.  Now, counsel is there anything further?

44MR TOVEY:  No, Your Honour, aside from, as I understand, the process will need to be, given the current conditions, that Mr Shaikh signs that and we return it via email to your associate.

45HER HONOUR:  That is right, yes, thank you.

46MR TOVEY:  Yes, we will do so now.

47HER HONOUR:  Yes, thank you.  Mr Pickering.  Mr Pickering?  I cannot hear you.

48MR PICKERING:  Sorry, Your Honour, I was just double checking with the opening whether a forensic order was sought or not.  I am just trying to find it on my screen.  I do not know whether - I do not believe we addressed that on the last occasion in any case.

49HER HONOUR:  I do not think it was sought.

50MR PICKERING:  No.  Well, in that case, Your Honour, I have nothing further to add.

51HER HONOUR:  Very well.  Yes, thank you.  Very well, well, I will now turn off the audio-visual, thank you.

52MR PICKERING:  If Your Honour pleases.

53MR TOVEY:  If the court pleases.

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