DPP v Samuels-Orunmwense

[2015] VCC 1706

IN THE COUNTY COURT OF VICTORIA  Revised

(Not) Restricted Suitable for Publication

AT MELBOURNE CRIMINAL JURISDICTION

CR -13-01452

DIRECTOR OF PUBLIC PROSECUTIONS

v

EFE SAMUELS-ORUNMWENSE

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JUDGE:	HER HONOUR JUDGE CAMPTON
WHERE HELD:	Melbourne
DATEOF HEARING:	23 November 2015
DATEOF SENTENCE:	23 November 2015
CASE MAY BE CITEDAS:	DPP v Samuels-Orunmwense
MEDIUMNEUTRAL CITATION:	[2015] VCC 1706

Subject: False documents

REASONS FOR SENTENCE

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Catchwords: False Bank Cheques Legislation Cited:

Cases Cited: Sentence: 12 Months

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APPEARANCES:  Counsel  Solicitors

For the Director of Public Prosecutions

Mr S. Young

For the Accused  Mr C. Metcalfe

VICTORIAN GOVERNMENT REPORTING SERVICE

7/436 Lonsdale Street, Melbourne - Telephone [phone]

P.1-10

HER HONOUR:

Charges

1Efe Samuels-Orunmwense, you have pleaded guilty to two charges of having in your custody, or under your control, documents which was false, contrary to sub-s.83A(5) of the Crimes Act in Victoria. The maximum penalty for this offence is ten years' imprisonment.

2On Thursday 3 March 2011, you were arrested by the Australian Federal Police in relation to drug charges.

Circumstances of Offending

3At the time of your arrest, you had in your custody or control, a number of false documents. These were three blank ANZ bank cheques and four blank ANZ business cheques. The cheques were found in an envelope in a black bag in the front passenger footwell of your car. There were also five blank ASIC Reserve Bank of Australia cheques found in the same envelope.

4The cheques, which are the subject of the charges, all contained at least one signature, none of these signatures being yours. They were all false and lacked various security features, none of them in fact having been issued by the ANZ Bank or drawn on the accounts on which they were purported to have been drawn. You were intending to induce another person to accept these documents as genuine and as to that person, that person's prejudice or indeed to another person's prejudice.

5The false business cheques were drawn on an account in the name of the Richmond Fellowship of New South Wales. While they appeared to bear the signatures of two authorised signatories to the account on which they were reportedly drawn, they are confirmed to be fraudulent by the officers of that organisation. You were not a signatory to the Richmond Fellowship account, nor were you an authorised representative of the Richmond Fellowship of New

South Wales.

6On 25 February 2011, some six days before your interception and arrest by the police, you purchased an ANZ bank cheque from the ANZ branch in North Melbourne. The value of the cheques was $25. The payee was designated as XLights. This cheque was drawn on ANZ General Ledger Account No.9501047, in which funds for all ANZ bank cheques are held until they are presented for payment. The ANZ General Ledger Account number appears on the face of all bank cheques issued by the ANZ Bank. This account number appeared on the face of the three blank ANZ bank cheques found in your possession.

7During a record of interview on 23 March 2011, you were shown the cheques relating to the subject charges and stated you had not seen them before and you had no idea how they came to be in your car.

Personal Circumstances

8Moving on to your personal circumstances, they were outlined to the court by your counsel and further details were contained in a report from Dr Greig, dated 11 August 2014. You were born in Nigeria on 12 July 1968, so you are now 47 years old. Your parents divorced when you were about 11 and you and your five siblings were largely raised by your mother. You completed the equivalent of Year 12 in Nigeria. When you were about 26, you moved to New Zealand at the suggestion of one of your uncles. You studied computers there for some four years, before coming to Australia in either 2000 or 2003.

Psychological Reports

9With regard to your mental health, Dr Greig reported that you had suffered from continuous clinical depression, varying in intensity from mild to severe at different stages since at least 2009. You had presented as moderately depressed  when  you  were  assessed  in  custody.    You  disclosed  suicidal

thoughts and spoke about experiencing hallucinations. In his opinion, your untreated depression would cause you greater hardship in custody than it would for those who did not suffer from this condition.

10At the time of your offending, you had no prior convictions, however you are presently serving a sentence imposed by this court of five years' and nine months', with a non-parole period of three years, for the offence of attempting to possess a marketable quantity of a border controlled drug, contrary to the Criminal Code of the Commonwealth.

Defence Plea Submissions

11In his plea on your behalf, your counsel relied on the following matters in mitigation of your offending:

·    Your plea of guilty to the offences, which it was submitted was illustrative of your remorse;

·    Your lack of prior convictions;

·    The fact that you have no family in Australia and you have only had limited phone contact with your family in Nigeria since being detained in custody;

·    Your mental health issues, which were detailed in Dr Greig's report;

·    Your prospects of rehabilitation, which this court had accepted as being good when sentencing you on the drug charge;

·    The fact that you had been assaulted by other prisoners on 21 July 2015, and you had spent some three days in the medical centre at the Fulham Correctional Centre.

12Your counsel relied on these matters and the principle of totality to support his submission that the sentence imposed by this court should be concurrent with

the Commonwealth sentence you are presently undergoing.

Medical Records from Justice Health

13There was no evidence provided at the plea hearing with respect to the claimed assault. Consequently the court sought and has been provided with medical records by Justice Health. These records coming from the Marngoneet Correctional Centre and Fulham.

14The medical unit records from Fulham reveal that you presented at the unit on 21 July 2015 at 6.40 pm, after being assaulted by five other prisoners. You stated that you had been hit on the left side of the face and top of your head with a coffee mug. The left angle of your jaw was observed to be quite swollen, however there was a full range of movement and you were able to talk properly. Nursing staff did not believe that your jaw was dislocated. However there was a possibility of a fracture, due to the extent of the swelling. There was also a small scratch identified at the base of your left nostril. You reported that your nose had been bleeding, but it was not bleeding when you were seen at the clinic.

15On 22 July 2015, you were seen again at the medical unit at Fulham. The left side of your jaw was swollen. Your left eye was red and you stated that your right buttock was sore.

16On 30 July, you attended the nurse clinic at Marngoneet Correctional Centre, reporting that you had had a nose bleed. You informed the nurse about the assault at Fulham, claiming you had been assaulted with a punch to the nose and side of the face. There was a slight swelling to your left cheek and you were given advice as to how to treat a blood nose.

Prosecution Submissions

17The prosecutor submitted that the sentence imposed upon you should be cumulative upon the Commonwealth sentence. This is for the following reasons:

·    The offending was entirely separate and unrelated to the drug offending;

·    It was submitted there was no material before the court of remorse;

·    Your plea of guilty had been entered at a very late stage, so any discount should be a limited one;

·    The maximum penalty indicated that the offences were objectively serious and although none of the cheques had been completed and presented, the potential fraud for which they could have been utilised was significant.

·    Use of fraudulent bank cheques had the potential to undermine public confidence in banking transactions and offences such as these were difficult to detect and had the potential to give rise to serious consequences, so that general deterrence was an important sentencing consideration.

Sentencing Remarks

18In sentencing you, I have taken into account the matters put by counsel in mitigation of your offending. With respect to your plea of guilty, although it was entered at a late stage, you have received a discount, as it saved the State the expense of a trial and the witnesses the ordeal of giving evidence.

19Although you have not illustrated any remorse, you have, by your plea of guilty, at least taken responsibility for your actions.

20I have also taken into account your lack of prior convictions and your good prospects of rehabilitation.

21With respect to your mental health, having accepted Dr Greig's opinion in his report of 11 August 2014, that your mental health issues would cause you greater hardship in custody, I have moderated your sentence in accordance with the principles in Verdins case.  I take into account that your incarceration

is also more onerous due to a lack of family ties in the jurisdiction.

22Given the medical records produced by the correctional facilities, I accept on the balance of probabilities, that you were assaulted in custody on 21 July 2015. I accept that you suffered the injuries referred to in the nurse's clinical notes and I have taken this into account in sentencing you.

23I have also taken into account, of course, the principle of totality. I consider that the mitigating circumstances in your case call for some concurrency. However, I do not accept your counsel's submission that there should be total concurrency. Offences such as these are difficult to detect and general deterrence is an important consideration.

Sentence

24On the charges of having in your custody false documents, you are sentenced to an aggregate term of imprisonment of 12 months'. Three months' of this sentence is cumulative with the Commonwealth sentence you are currently undergoing. The sentence is to commence on 12 August 2016. This means essentially that you will have an extra three months' to serve.

256AAA, I believe I am bound to indicate that if you had not plead guilty, the sentence would have been 18 months', to serve six.

26Now I believe that Commonwealth sentences are always - I mean State sentences on top of Commonwealth sentences can be complicated. But essentially what I have done, and I believe it is the correct procedure, is I have backdated the sentence to commence on 12 August 2016, so that the nine months' runs concurrent - nine months' of the sentence runs concurrent with the Federal sentence. He reached his non-parole - he is eligible for parole on 12 May 2017, but I have ordered that he - but he will do three months' of the State sentence at that date.

27Is that the understanding of the parties as to how the procedure works?

28MR YOUNG: Certainly, Your Honour, the theory of concurrency being achieved by ordering a commencement date. That will ensure that - - -

29HER HONOUR: Nine months' back, yes.

30MR YOUNG: Is certainly the correct approach to take. I simply haven't - or haven't done the mathematical calculation to calculate when the non-parole period of Your Honour's previous sentence expired.

31HER HONOUR: I was told that he was eligible for parole on 12 May 2017. That is why I picked that date.

32MR YOUNG: Yes.

33HER HONOUR:  But I do not - if that is incorrect, someone should tell me so we can alter it.

34MR YOUNG: Would it be possible, Your Honour, to have a few minutes just to make those calculations, just to make sure that that is - - -

35HER HONOUR: I think that is a very sensible idea. I will stand the matter down and you can have a chat.

36MR YOUNG:  Thank you, Your Honour.

37HER HONOUR: Work it out.

38##A:S#     (Short adjournment.)

39HER HONOUR:  So we - - -

40MR YOUNG: Your Honour - - -

41HER HONOUR: Apparently that - my pen has disappeared.

42MR YOUNG: The - - -

43HER HONOUR:     That date did not take into account some pre-sentence

detention, is that right, or something of the kind?

44MR YOUNG: I am not sure how the 12 May date was arrived at, Your Honour, but the date on  which  the  sentence  that  Your  Honour  imposed  on 25 August of last year, will - the non-parole period will expire, is in fact 22 July 2016. So - sorry, 22 April 2017, which means that for nine months' to be cumulative - is to be concurrent.

45HER HONOUR: Yes.

46MR YOUNG: And three months' cumulative. The sentence that Your Honour imposes today would have to be specified to commence on 22 July 2016. Alternatively, rather than specifying a particular date, Your Honour could simply order that the sentence Your Honour imposes today commence nine months' prior to the expiration of the non-parole period that was imposed on 25 August 2014.

47HER HONOUR: Are you sure of the date?

48MR YOUNG: We have both done the calculation and we're sure of it - we're - yes.

49HER HONOUR: Right, well it seems to me that I can make a date that the sentence - order that the sentence commence on 22 July 2016.

50MR YOUNG: Sixteen, yes.

51HER HONOUR: Because if there is an error with that date, I will make it quite clear for the transcript that my intention is that effectively that the bulk of his sentence of nine months' is concurrent and that three months' is cumulative.

52MR YOUNG: Yes. On those calculations, that would achieve Your Honour's stated - - -

53HER HONOUR:  It does exactly what I did, but the dates change?

54MR YOUNG:  That is correct, yes.

55HER HONOUR:     And I believe that is the correct - having looked at the authorities, I believe that is the correct way to do it, for what it is worth.

56MR YOUNG:     I am in Your Honour's hands.       It seemed to me, reading s.16(4) - - -

57HER HONOUR: Yes.

58MR YOUNG:  - - - that it could be achieved in either of the ways I just outlined.

59HER HONOUR: Yes.

60MR YOUNG: Either by specifying a specific date, or by specifying a commencement date referable to the expiration of the previous non-parole period and that that sub-section does not require the specification of a particular date, but either achieves the intention that Your Honour is seeking to - - -

61HER HONOUR: Yes, and it appears to me that if there was an error in the date, then as long as it is on the record as to what the court's intention is, that error can be rectified.

62MR YOUNG:  Administratively, yes.

63HER HONOUR: That is exactly, yes.

64MR YOUNG:  Yes.  Certainly Your Honour's intention to make three months' cumulative is clear from Your Honour's sentencing remarks.

65HER HONOUR: Right.  All right, well thank you, Gentlemen.

66MR METCALFE: Thanks, Your Honour.

67MR YOUNG: If Your Honour pleases.

68HER HONOUR: Right. Thank you.

69MR METCALFE: As Your Honour pleases.

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