DPP v Osmani (No 2)

[2023] ACTSC 128

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Osmani (No 2)

Citation:

[2023] ACTSC 128

Hearing Date:

30 March 2023; and 26 May 2023

DecisionDate:

26 May 2023

Before:

Mossop J

Decision:

See [24].

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – guilty plea to offence of obtaining property by deception – offence committed by joint commission – where offenders purported to purchase e‑cigarettes with an envelope of papers cut to resemble banknotes – offending in mid-range – offender's role included driving the getaway vehicle – offender did not comply with ICO assessment in circumstances where he requested an assessment – sentence of suspended imprisonment imposed

Legislation Cited:

Crimes (Sentence Administration) Act 2005 (ACT)

Criminal Code 2002 (ACT), ss 45A, 326

Parties:

Director of Public Prosecutions

Albion Osmani ( Offender)

Representation:

Counsel

N Deakes (DPP)

A Doig ( Offender)

Solicitors

Director of Public Prosecutions

Tim Sharman Solicitors ( Offender)

File Number:

SCC 259 of 2022

MOSSOP J:

Introduction

1. On 17 October 2022 the offender, Albion Osmani, pleaded guilty to one count of obtaining property by deception contrary to s 326 of the Criminal Code 2002 (ACT) (CC2022/8428). The offence was an offence by joint commission by virtue of s 45A of the Criminal Code.

Facts

1. The facts are set out in a Statement of Facts, which is agreed. It is not necessary to recite the facts in great detail. In summary, the offending was as follows. The offender was involved in a scheme to acquire e-cigarettes in bulk from a seller located via Facebook Marketplace. There were three co-offenders, Mr Aseeri, Mr Rhodes and Mr Khan who, along with the offender, participated in the scheme which involved a purported purchase of 12,000, IGET brand e-cigarettes. At the exchange of the merchandise Mr Khan departed with the e‑cigarettes in a vehicle while Mr Rhodes purported to made payment with envelopes full of cash totalling $63,600. Instead of containing cash, they only contained paper cut to the size of banknotes. Mr Rhodes then ran from the scene to a car which was driven by the offender and was driven away.

1. The level of involvement on the part of the offender was the subject of some dispute. The agreed facts show that he was communicating with Mr Aseeri about the plan on 10 May 2021 where Mr Rhodes had found a potential seller. On 13 May 2021 the facts record communications between the seller and Mr Aseeri. These communications continued on 14 May 2021. There are some communications on the evening of 14 May 2021 between Mr Aseeri and the offender which indicate the offender had knowledge of the scheme but do not indicate him as a leader (rather than a follower) in the plan. The theft took place at about 3pm the next day. There is no evidence of involvement of the offender prior to him waiting in an adjacent street and driving the getaway car for Mr Rhodes. He was driving Mr Aseeri shortly after the incident.

Objective seriousness

1. The offending itself, for which he is liable by joint commission, is in the mid-range of objective seriousness. It involved property of significant value and a premeditated and thoroughly dishonest scheme in relation to it. None of the stolen items have been returned to or recovered for the benefit of the victim of the offending.

1. The offender played a subordinate role in the physical acts involved in offending. While his role was important in order to permit Mr Rhodes to escape, on the evidence available he appears to have played a subordinate role in the planning of the scheme.

Subjective circumstances

1. The subjective circumstances of the offender are outlined in a pre-sentence report and a psychological assessment prepared by Leesa Morris as well as some medical records relating to the offender.

1. The offender is 25 years old. He was born in Serbia to Albanian parents and his family came to Australia when he was two years old. He is one of five children and had a happy and family-oriented childhood. He is single with no dependents. He resides in the family home. He completed Year 12 at school. He completed three years out of a four-year degree. He also has a reasonable history of employment, though he is currently not employed and supported by his family.

1. He is socially isolated. He has difficulty making friendships. His relationship with the co‑offender, Mr Aseeri, was described as one involving controlling behaviour and financial abuse. The court proceedings have had an impact on his mental health.

1. Although, at his own request, he was assessed for suitability for an Intensive Correction Order (ICO), he and his family dealt with that in a counter-productive way. It appears that they did not understand the benefits of having a custodial sentence imposed by way of intensive correction and the offender expressed his displeasure with the invasive and stringent nature of an ICO. He questioned the integrity of the corrections officers who attempted to conduct a home visit assessment. The position of his family was the same, indicating that they did not consent to Mr Osmani residing at their address should he be sentenced to such an order. It is possible that this attitude was as a result of some type of misunderstanding, but in the absence of evidence to clarify what the position was, I have to rely upon what is stated in the assessment report. The assessment report did however indicate that he was at a medium to low risk of general reoffending and suitable for a community service work condition.

1. Two references were tendered. One was from a long-term friend of his eldest sister and the other was from his eldest sister. His sister described him as being overly trusting. Her friend describes him as very naïve at times. The reference from his sister describes his decline in mental health following his offending and the recent improvement in his mood following the earlier sentencing hearing.

1. The report of Leesa Morris was designed to investigate whether or not the offender suffered from Autism Spectrum Disorder. She concluded that he did not. However, it did expose a hormonal condition which impacts his social functioning. That condition is described in section 7 of the report. At paragraph 9.13 of the report, Ms Morris makes reference to his reported submissiveness and difficulty in relationships and the likelihood that his perception and understanding of social cues is limited. Some of these are likely to be related to the hormonal condition from which he suffers.

1. She describes Mr Osmani’s relationship with Mr Aseeri and its controlling nature and the financial loss that he suffered as a result of it, identified as $10,000, which was given to Mr Aseeri but not returned. She describes this is giving rise to an Adjustment Disorder with Mixed Anxiety and Depressed Mood. She indicates that the offender demonstrated a high suicide risk and would be in an “extremely vulnerable position in the custodial environment”. She assesses him as having a low risk of reoffending.

Criminal history

1. The offender has no criminal history and has spent no time in custody attributable to the offence.

Plea of guilty

1. The offender entered a plea of guilty on 17 October 2022 in the Magistrates Court on the third mention after having entered a plea of not guilty and after the provision of a brief of evidence. A plea in the Magistrates Court is to be treated as an early plea. Having regard to the utilitarian value of the plea it is appropriate that he receives a discount of approximately 25 percent.

Consideration

1. The offending is obviously serious and involved property of a substantial value. It was premeditated.

1. The offender presents an unusual and mixed picture. So far as the offending is concerned, the picture presented by the evidence is one of somebody who was subordinate to Mr Aseeri and not a leader in the joint commission of the offence. The evidence in support of that was not as strong as it might have been. So far as his personal circumstances are concerned, the offender presents as socially isolated but with strong family connections. I accept Ms Morris’s assessment that he has a low risk of reoffending.

1. The offender and his family have precluded an ICO being an appropriate disposition. It is not clear whether that was as a result of misunderstanding of the role that an ICO might have played in his sentencing or for some other reason.

1. I consider that general deterrence and recognition of the harm done to the victim are the most important sentencing considerations.

1. His co-offender, Mr Rhodes, received a sentence of 21 months and two weeks’ imprisonment to be served by way of an ICO. In my view the role of the offender was substantially different to and less than that of Mr Rhodes.

1. I do not accept the submission of the prosecution that any sentence must involve a period of full-time detention. Rather, I consider that having regard to the offender’s subordinate role in the offending and his personal circumstances, a lenient disposition is available, at least in the first instance, on the assumption that he will comply with the obligations which permit him to remain in the community.

1. The offender gave some limited assistance to the authorities. The letter disclosing that assistance describes it as having been of low value. Clearly the assistance is less valuable than that given by Mr Rhodes. Rather than deal with that by way of a percentage reduction it is appropriate that his sentence be reduced by a fixed period of one month.

1. The starting point for the sentence is a sentence of 17 months’ imprisonment. For the reasons just given it will be reduced to 16 months. Following the reduction on account of the plea of guilty the sentence imposed will be 12 months’ imprisonment. That will be suspended upon the offender entering into a good behaviour order for a period of two years and a period of community service of 150 hours to be completed within one year.

1. As a result of the apparent attitude of the offender and his family reflected in the ICO assessment report, it is necessary that I make very clear the obligation of the offender to comply with all of the requirements of the good behaviour order, including compliance with any directions, which may be wide ranging, as well as the obligation to perform community service. There should be no doubt on the part of the offender and his family that if there is not compliance with these requirements because of some difficulty with the offender’s attitude then he will be dealt with for that breach and resentenced in a way which will be adverse to his interests.

Orders

1. The orders of the Court are:

1.On the charge of obtaining property by deception (CC2022/8428) the offender is convicted and sentenced to imprisonment for a period of 12 months.

2.The sentence is suspended forthwith upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes Sentence (Administration) Act 2005 (ACT) for a period of two years with the following additional conditions:

(a)That for the period of two years or such shorter period as determined by the Director-General the offender is to be on probation subject to the supervision of the Director-General and to obey all reasonable directions of the Director-General; and

(b)The offender is to complete 150 hours of community service within 12 months.

(c)The offender is to report to ACT Corrective Services at 249 London Circuit no later than 4.00pm on 30 May 2023.

I certify that the preceding twenty-four [24] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop

Associate:

Date: