DIRECTOR OF PUBLIC PROSECUTIONSvFIRAS ALI
[2018] VCC 2005
•29 November 2018
IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted Suitable for Publication
AT MELBOURNE CRIMINAL JURISDICTION
CR 17-02372
DIRECTOR OF PUBLIC PROSECUTIONS
v
FIRAS ALI
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| JUDGE: | HER HONOUR JUDGE GAYNOR |
| WHERE HELD: Melbourne | |
| DATEOF HEARING: 29 November 2018 | |
| DATEOF SENTENCE: 29 November 2018 | |
| CASE MAY BE CITEDAS: DPP vAli | |
| MEDIUM NEUTRAL CITATION: [2018] VCC 2005 | |
Subject: Catchwords: Legislation Cited: Cases Cited: Sentence:
REASONS FOR SENTENCE
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APPEARANCES: Counsel Solicitors
For the Director of Public Prosecutions
Ms M. Brown
For the Accused Mr W. Barker
VICTORIAN GOVERNMENT REPORTING SERVICE
7/436 Lonsdale Street, Melbourne Vic 3000 - Telephone 9603 9134 203137
HER HONOUR:
1.1 Firas Ali, you have pleaded guilty before me to two charges of possessing identification information to facilitate the commission of an indictable offence, two charges of obtaining property by deception, one charge of attempting to obtain property by deception and obtaining financial advantage by deception. The facts underlying your offending are as follows.
1.2 I attach the very full prosecution - well, very well expressed, if I can put I that way, prosecution opening to my sentencing remarks.
1.3 In very short compass, you are part of an organisation which via certain technology was able to obtain the credit card details of unsuspecting persons, which were then transferred to a blank card thereafter to be used in the purchase of goods. It is not suggested that your role involved any involvement in the actual taking of those details.
1.4 Nevertheless, the offending covers several occasions where you went to various outlets using false credit cards, which had been encrypted with the details of their unsuspecting original owners, either buying or attempting to buy certain goods.
1.5 Charges 1 and 5 related to your possession of those false credit cards, if I can describe them in that way. The remaining charges relate to your actions with those false credit cards.
1.6 In very short compass, you went on 27 April 2016 to JB HI FI in Broadmeadows where you purchased a total of five phones, valued at a total of $6,200, soon after attempting to purchase a further three mobile phones valued at $3,026 using the same card but the transaction was declined.
1.7 On that day you also went to a BP service station in Preston, with a co-accused, in possession of another cloned credit card purchasing gift cards valued at
$1,892.
1.8 On 26 May, you and a co-offender went to a jewellery store in Coburg in possession of a third cloned credit, at which time you purchased jewellery valued at $4,270.
1.9 Up to the time of that offending you had no prior convictions. However, in the aftermath of that offending you went on to be involved in further offending.
1.10 On 18 August 2017 you were placed on a nine month Community Corrections Order on charges of dealing with the proceeds of crime, possessing a prohibited weapon, possession of various drugs, including methylamphetamine, GHB and cocaine, a charge of going equipped to steal, failing to answer bail, committing an offence whilst on bail, handling stolen goods, drive whilst your authorisation was suspended and driving an unregistered motor vehicle. That offending covered two periods of time where you were involved in breaking the law, and that offending occurred subsequent to the offending which has brought you here before this court.
1.11 I received a report from the Community Corrections office as to your progress on that Community Corrections Order, which as I have said was handed down in August of last year. There was no progress on this order. It appeared you were continuing to use drugs, a problem that had bedevilled you for some years and which led to you offending in this way and basically you dropped out of the Order fairly early in the peace and achieved nothing on it. You have yet to be dealt with for breach of this matter.
1.12 You have also been charged with further offending in November 2017, being possession of drugs, and then in February of this year which you have been charged with burglary, which charge your counsel tells me you are vigorously defending.
1.13 I now turn to your personal circumstances. You are now 33 years of age, you were 32 at the time of this offending. You were born in Lebanon, the eldest of seven children and you came to Australia in 2008 after meeting your future wife
on a holiday here. You moved back to Australia to live here. You went on to have children with her, but the marriage broke down in 2015. You had completed the equivalent of Year 12 in Lebanon and have always worked, thereafter as a qualified hairdresser. In Australia you were able to set up and manage several salons.
1.14 It would appear that the demise of your marriage led to a mental depression from which you have suffered ever since.
1.15 You have two children aged eight and five who you now see every weekend. It appears that the aftermath of the breakup was a nasty one. You went into, as I have said, an emotional decline, ended up with depression and eventually, at a very late stage for anyone to get themselves involved in drugs, you became involved in, in particular, ice use.
1.16 Clearly, I am satisfied at the time you committed these offences you were in the grip of that addiction and that you became involved in this offending in order to feed your habit. The fact that you were engaged in what was essentially a ring of people involved in this fraudulent and criminal enterprise shows how far you had fallen and what company you were keeping.
1.17 You currently have a partner, but your personal circumstances are not good.
You live in a motel, you still remain in the grip of depression. You spend your days sleeping and your nights awake. Your drug use, your counsel informs me, has very much declined but you do occasionally use drugs, but certainly not at the level that you were at the time that you first begun offending and during the time that you made that unsuccessful attempt at the Community Corrections Order.
1.18 It was not disputed by the prosecution that a further Community Corrections Order was appropriate in this case. You have a good strong work history. You have come to drug use and associated criminal offending fairly late in your life and it appears that although your personal situation, particularly insofar as your
mental health is concerned, is not good you are not involved in drug use and associated offending to anywhere near the level you were throughout 2016 and 2017.
1.19 Now, the order that I am going to place you on as I warned you, Mr Ali, is going to be a vigorous order and it does reflect the seriousness of your offending. The sorts of activities that you and your co-offenders were involved in undermine the capacity of everyone in this society to carry out a financial transaction with confidence. And ordinarily, had you had a greater, higher role in the hierarchy of the organisation you were involved with, had you more in the way of a prior criminal history I would not have hesitated to deal with you by way of a sentence of imprisonment to be immediately served.
1.20 You do need to understand that where institutions such as banks are attacked, in terms of their operations, so that people in the street cannot be confident of withdrawing money from an ATM or of using a credit card in a taxi, that these people who undermine the capacity of the community to do that with any confidence will be dealt with extremely severely to send out a message to other people who might be inclined to act in the way that you did, that they will be met with an extremely severe reaction by this court.
1.21 You can regard this Community Corrections Order as something of an opportunity for you, but if you do not take advantage of that opportunity you are going to end up back in gaol; do you understand? If you breach this Community Corrections Order I have the power to resentence you in relation to this offending.
1.22 The issues of delay of your personal circumstances and your increased capacity to comply with the Community Corrections Order pretty much underlie the reasoning whereby I agree with submissions to me from both ends of the Bar table that a Community Corrections Order would be appropriate.
1.23 If you relapse into drug use and associated criminal offending you will not get
any sympathy from me. Is that clear, Mr Ali?
1.24 Stand up please, sir.
1.25 Before I can place you on a Community Corrections Order I must first gain your consent. I need to outline to you the conditions which will attach to the order. The fundamental conditions are that you must report to a community corrections office within two working days of the making of this order. That is by Monday of next week.
1.26 Whilst on the order, which will last for two years, you must not commit any offence punishable by imprisonment. That does not mean you have to be gaoled. That means if you commit an offence which theoretically you could be sent to gaol, like stealing a box of matches from Woolworths, that will be a breach.
1.27 While you are on the order you may not leave Victoria without the permission of the community corrections office. You must report to the community corrections office any change of address or employment within 48 hours of the making of that change. You must not attend upon the community corrections office under the influence of drugs or alcohol. You must report to and receive visits from the community corrections officers and you must obey all lawful directions of the community corrections office.
1.28 I am going to order that you undertake 180 hours of unpaid community work.
You are to attend for treatment and rehabilitation for mental health difficulties, and I am going to explain that. I want you to go to your GP as soon as you can and get a mental health plan - off to a psychologist. But you also, and it is a matter for you but you need to do this, you need to get onto antidepressants. All right?
1.29 I am going to order that there be supervision, which means you are going to have to attend on the community corrections office. You are also to attend for
treatment and rehabilitation for drug problems. And if I find you are skipping on the mental health or the drug programs that you are meant to be attending that will be a breach of the order and I will deal with you again for this offending. You understand? I regard this very seriously. You need to attend to these problems.
1.30 All right, I am also going to order judicial monitoring. That means you are going to come back here in front of me and there will be a report from the office of Corrections about how you are going and how you are attending to the conditions that I am attaching to this order; all right?
1.31 Now, it is going to be a bit longer than I would like but we will make it in early February, I think because of Christmas. Hang on, how are we at late January? All right, I am going to get you here at the end of January. All right? So the first judicial monitoring will take place at 9.30 on 29 January 2019. I did, it is for two years, I said.
1.32 Yes. All right? So you and I will be seeing each other in about two months' time and I will get a report. Now, I am going to order that you can - you do not have to attend court. What you can do it is - I think it is going to be Brunswick or Coburg Corrections. Sunshine?
1.33 MR BARKER: Broadmeadows is the closest to Coburg, Your Honour.
1.34 HER HONOUR: I am going to order that what you can do is on the day is you can go - all the corrections has got a videoing link there. So you can go to Corrections and I will link you both in with your case officer.
1.35 And as I have said to you, you need to do what they say. Now, I know that there can be difficulties with corrections, your case manager changes, this person changes, they cannot get you into certain program, there are waiting lists for other programs; things like that. But I expect you to be proactive and I cannot make you do this, but one thing I do suggest you do is find your local
narcotics anonymous organisation and get yourself off there. All right?
1.36 You are still using from time to time, as I understand it. That gives you 24/7 support if you need it, all right? And it will give you some structure to your days. Again, that is simply up to you, but I will make a note please, madam associate, that I have suggested you attend there. But you will be going to more formal treatment as organised by Corrections.
1.37 All right, are you prepared to enter this order? You are? Do you understand everything I have said to you?
1.38 OFFENDER: Yeah.
1.39 HER HONOUR: What's your problem with it?
1.40 OFFENDER: No, there's no problem, (indistinct words.)
1.41 HER HONOUR: You sure? Okay. All right, but I am also making a note that I want to ensure that you have attended on your GP by the time this comes back, that you have got your mental health plan going and I want to find out if you have got yourself - whether you have asked your doctor whether - because GPs, it's GPs who do this. Whether your doctor has - you have talked to your doctor about getting some medication, by way of antidepressants. All right? Thank you very much.
1.42 Yes. All right, have a seat. We will just prepare the documentation.
1.43 MR BARKER: As Your Honour pleases.
1.44 HER HONOUR: I don't have to do a s.6AAA declaration.
1.45 MS BROWN: No, Your Honour. There's the 464ZF application. I understand the order was e-Lodged with Your Honour's associate.
1.46 HER HONOUR: Yes, I'm going to. I'm going to grant that in the circumstances.
Mr Barker, he's been involved in enough criminal activity to make it worthwhile
having his fingerprints on the database. Not fingerprints, his DNA.
1.47 So I need to tell you this. I'm going to order that you must attend upon police within 28 days so that they can take a swab from your mouth so that your DNA can go on the records, all right? Thank you.
1.48 MS BROWN: As Your Honour pleases.
1.49 HER HONOUR: All right, that's good. Thank you. We'll get you to sign that, thank you, sir. Did (indistinct words) while I got the s.464ZF. Yes, we need the
- that's the custodial one.
1.50 ASSOCIATE: Okay, yes.
1.51 HER HONOUR: So need the - - -
1.52 ASSOCIATE: If it wasn't (indistinct words) - - -
1.53 MS BROWN: If the appropriate order hasn't been e-Lodged, Your Honour, what I can arrange for is a non-custodial order to be emailed to Your Honour's associate.
1.54 HER HONOUR: That would be good, thank you. You need to go to Coburg police, sir, all right? I need to inform you that if you resist police have the right to use reasonable force in order to obtain the swab from your mouth.
1.55 MS BROWN: Thank you, Your Honour.
1.56 HER HONOUR: Thank you, yes. Thank you. Thank you very much, we'll just give you some copies and good luck with this, Mr Ali. All right? Just stand up, sir, sorry - if you use this order properly you can really get your life back on track. You can lift your mood, you can go back to doing the hairdressing that you're so good at. You can have a life again.
1.57 OFFENDER: (Indistinct.)
2.58 HER HONOUR: All right? It's not going to be easy, but it's going to be a lot better than lying around in a motel room feeling depressed all day. Do you have the blinds pulled down? Yes. It just sounds like a really depressing life. I mean, you did really well. You were a man with a good career, you've still got your kids. You know, you can go back to that if you use this order properly and I'm going to make sure as best I can that you do use it properly by me keeping a close eye on you and making sure you're doing what your meant to be doing under this order and at times that's going to annoy you. All right? But you're just going to have to plough on and do it.
1.59 My tip is you will feel a great deal better than you have been for a long, long time if you get on with this, all right? Thank you very much, sir. You can come out of the dock.
1.60 I thank counsel for their assistance in this matter.
1.61 MS BROWN: Thank you, Your Honour.
1.62 HER HONOUR: Thank you very much. Thank you.
1.63 MR BARKER: He's still got to sign the order? He's still got to sign it, doesn't he?
1.64 ASSOCIATE: No, he's signed it. That's for him and I'll just (indistinct words) one for you.
1.65 MR BARKER: Thank you very much.
1.66 HER HONOUR: All right, did the prosecution get a copy?
1.67 ASSOCIATE: Yes, I email them.
1.68 HER HONOUR: You email them, good.
1.69 ASSOCIATE: Yes.
2.70 HER HONOUR: Thank you very much.
1.71 MS BROWN: Thank you, Your Honour.
1.72 HER HONOUR: You're excused. All the best, Mr Ali. Well, have a happy Christmas, I'll see you at the end of January. Hopefully with pink cheeks, sparkling eyes and up and about. All right, good luck with it, sir. Thank you.
1.73 MS BROWN: May I be excused, Your Honour?
1.74 HER HONOUR: Yes, you are excused. I thank you again for your assistance.
Thanks, Mr Barker.
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IN THE COUNTY COURT Indictment No. H12042069
OF VICTORIA AT MELBOURNE
County Court Ref No. CR- 17-02372
DIRECTOR OF PUBLIC PROSECUTIONS V
FIRAS ALI
SUMMARY OF PROSECUTION OPENING
Date of document: 17 August 2018
Filed on behalf of: Director of Public Prosecutions Prepared by:
JOHN CAIN Solicitor’s Code: 7539
Solicitor for Public Prosecutions Telephone: (03) 9603 7685
565 Lonsdale Street
Melbourne VIC 3000 Ref: E Bertolini
CHARGES: - ALI H12042069
1.1. Possess Identification information – s.192C (1) Crimes Act 1958
1.2. Obtain property by deception – s.81(1) Crimes Act 1958
1.3. Attempt to obtain property by deception – s.321M Crimes Act 1958
1.4. Obtain property by deception – s.81(1) Crimes Act 1958
1.5. Possess Identification information – s.192C (1) Crimes Act 1958
1.6. Obtain property by deception – s.81(1) Crimes Act 1958
BACKGROUND - Operation Skimmed 2016
1. In 2016, police in NSW and Victoria have investigated a fraudulent scheme known as “ghost terminalling”. This involves an offender using a portable EFTPOS device which appears to record a transaction by a customer legitimately, such as in a taxi, but is not connected to a network. Instead the terminal records the customer’s credit or debit card data and PIN. This information is then used to create a new card to be
used by an offender to withdraw money from the customer’s account via an ATM.
2. In May 2016, police set up Operation Skimmed 2016 to target the offenders, both those skimming the data and also those using the new cards to withdraw money from ATMs or purchase property.
3. The Accused Ali is 32 years old (DOB 17 November 1985) and resides at 11a Brindalee Way, Hillside.
Complainant Burchard:
4. On 31 March 2016 the complainant Courtney Burchard (p.1178) took a taxi from Melbourne Airport and paid for the fare with her NAB credit card. The taxi had a modified eftpos machine which recorded the card and PIN details without the knowledge of the complainant. The fare was not transmitted to the bank.
5. The details of the complainant’s card were then duplicated onto a blank card.
6. On 27 April 2016, the Accused Ali entered the Broadmeadows shopping centre in possession of the new card which had been encrypted with Complainant Burchard’s details (Ali Charge 1).
7. On that day and in company with two other males, the Accused Ali purchased 3 Apple iPhones valued at $3900 and 2 Galaxy Samsung Galaxy S7 mobile phones valued at $2300 using the cloned card with complainant Burchard’s details (Ali Charge 2).
8. A short time later, the Accused Ali attended at the Broadmeadows Allphones store where he attempted to purchase 3 mobile phones valued at $3026 using the same card, but the transaction was declined (Ali Charge 3).
Complainant Peter Gianoli:
9. On the same day, the Accused Ali attended at the BP service station in Preston in company with a co-offender Yellaram, in possession of another cloned credit card, this time an ANZ card in the name of Peter Gianoli, Ali and the co-offender used the credit card in the name of Peter Gianoli, to purchase gift cards valued at $1892 (Ali Charge 4).
Complainant Grivas:
10. On 26 May 2016, the Accused Ali and a co-offender Ronaldson (p.1181) attended at the Farah Rayad Jewellery store in Coburg in possession of a cloned ANZ credit card encrypted with the credit card details of John Grivas (Ali Charge 5).
11. The Accused Ali used the cloned card in the name of the complainant Grivas to purchase jewellery valued at $4270.
Ali Arrest and Interview:
12. The Accused Ali was interviewed at Port Philip Prison on 22 June 2017 (p.1241).
13. He was interviewed in a tape-recorded record of interview (p.1247) and made admissions to being present with another person when the five mobile phones were purchased (qu.110-115) but denied that he paid for or received the phones. He otherwise denied all allegations.
Penalties
The maximum penalties for these crimes are: Possess Identification information – 3 years Obtaining property by deception – 10 years Attempt to obtain property by deception – 5 years Victim Impact Statement
N/A
Other Orders
s.464ZF/ZB
Pre Sentence Detention
The Accused Ali has not spent any days in custody in regard to these crimes.
Chronology
20 July 2017 Ali charged
26 July 2017 Ali filing hearing
8 September 2017 Ali committal mention, adjourned to 4 October 2017
4 October 2017 Ali further committal mention, resolved and adjourned
to 20 November 2017 for summary jurisdiction application
20 November 2017 Ali summary jurisdiction refused
15 February 2018 Plea Hearing – adjourned to 25 May 2018
25 May 2018 Plea Hearing – adjourned to 20 September 2018
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