Nikaghanri v The State of Western Australia

[2009] WASCA 192

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   NIKAGHANRI -v- THE STATE OF WESTERN AUSTRALIA [2009] WASCA 192

CORAM:   OWEN JA

McLURE JA
PULLIN JA

HEARD:   8 OCTOBER 2009

DELIVERED          :   4 NOVEMBER 2009

FILE NO/S:   CACR 42 of 2009

BETWEEN:   TUOYO NIKAGHANRI

Appellant

AND

THE STATE OF WESTERN AUSTRALIA
Respondent

ON APPEAL FROM:

Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA

Coram  :EATON DCJ

File No  :IND 1306 of 2008, IND 1486 of 2008

Catchwords:

Criminal law - Appeal against sentence - Fraud and passport offences - Advance fee fraud scheme - Individual sentences not manifestly excessive - Aggregate 6­year sentence did not infringe totality principle

Legislation:

Criminal Appeals Act 2004 (WA), s 31(4)
Criminal Code (WA), s 409(1)(c)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 21(2)
Sentencing Act 1995 (WA), s 8(4)

Result:

Leave to appeal on ground 1 refused
Leave to appeal on grounds 2 and 3 granted
Appeal dismissed

Category:    D

Representation:

Counsel:

Appellant:     Mr T F Percy QC & Mr S Nigam

Respondent:     Mr J A Scholz

Solicitors:

Appellant:     S C Nigam & Co

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Collins v The State of Western Australia [2007] WASCA 108

Hladin v The State of Western Australia (2005) 156 A Crim R 176

Smallbone v The State of Western Australia (2008) 187 A Crim R 57

1. OWEN JA:  I agree with McLure JA.

2. McLURE JA: The appellant applies for leave to appeal and to appeal against sentence. The appellant was convicted of 18 counts of aggravated fraud and eight counts of fraud contrary to s 409(1)(c) of the Criminal Code (WA) (the Code). He was also convicted of 25 counts of using another person's passport for identification purposes contrary to s 21(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) (Foreign Passports Act). The appellant pleaded guilty to two counts of aggravated fraud and two counts of using another's passport. He was convicted of the remaining offences after trial.

3. The complainants in relation to the fraud offences were Mr Wah, Mr Ellison, Mr Graham and a couple, Ms Van den Bogaert and Mr Lowe.  Mr Graham and Mr Wah resided in Queensland, Mr Ellison in Western Australia (Busselton) and Ms Van den Bogaert and Mr Lowe in Victoria.  The appellant resided in Perth.  The fraud offences were that, with intent to defraud, the appellant by deceit or fraudulent means gained a benefit, being a specified sum of money.  The amounts the subject of the individual fraud offences ranged from a minimum of $1,000 to a maximum of $10,792.51.  The total amount defrauded by the appellant was $132,429.  The aggravating factor was that Mr Wah and Mr Ellison were over the age of 60 years.  The passport offences were connected with the collection of the funds paid by the complainants.  The offences and the sentences imposed are as follows:

Offence	Complainant	Sentence
12 x aggravated fraud	Mr Wah	3 years' imprisonment on each count
12 x using another's passport	18 months on each count
6 x aggravated fraud	Mr Ellison	3 years on each count
5 x using another's passport	12 months on each count
3 x fraud	Mr Graham	2 years on each count
3 x using another's passport	9 months on each count

5 x fraud	Ms Van den Bogaert and Mr Lowe	2 years on each count
5 x using another's passport	9 months on each count

All the sentences for the fraud and associated passport offences relating to the separate complainants were ordered to be served concurrently.  The total sentence for the Wah offences (3 years) and the total sentence for the Ellison offences (3 years) were ordered to be served cumulatively.  The balance of the total sentences were ordered to be served concurrently.  Thus, the sentencing judge imposed a total effective sentence of 6 years' imprisonment.

1. The grounds of appeal are that:

   (1)the sentence of immediate imprisonment for the passport offences is manifestly excessive;

   (2)the terms of imprisonment for the fraud offences are manifestly excessive; and

   (3)the total effective sentence of 6 years breached the totality principle.

2. The appellant engaged in what is known as 'advance fee fraud schemes'.  The gist of the scheme is to trick prospective victims into parting with funds by persuading them that they will receive a substantial benefit in return for providing some payments in advance.  The facts of the offending are as follows.  Mr Graham accessed an internet site on which he filled out on‑line surveys as a result of which he was entered into prize draws and lotteries.  In early September 2005, he received an email from a man called Andrews informing him that he had won £2.8 million in a British lottery.  He was contacted by email by another man called Duff who explained the various options for collecting the prize money.  He was told the money had been collected by a courier who would bring it to Australia and he would have to pay certain fees.  Mr Graham was provided with a series of false documents, including legal letters and bank deposit certificates, to authenticate his win.  After a number of alleged difficulties encountered in moving the funds to Australia, Mr Graham was contacted by a person who introduced himself as Edwin Bello, ostensibly a diplomatic courier, who told him that the money was in a bank draft which had arrived in Malaysia and that certificates were required in order for the money to be forwarded to Australia, including an anti‑terrorist certificate.  Mr Graham sent money as instructed by Mr Bello through the medium of Western Union.  Mr Graham paid the total sum of $27,000.  He did not receive any lottery proceeds.

3. The State case was that the appellant passed himself off as Edwin Bello.  The fraud offences related to statements made by Mr Bello which caused Mr Graham to make payments as directed via Western Union.  Persons other than the appellant were involved in the early stages of the fraud, including in the provision of the false documents.

4. Ms Van den Bogaert received an email from a person claiming to be a United Kingdom lawyer informing her that she was entitled to claim ₤9.8 million, being part of the estate of a distant relative who had died having made a lot of money in the oil business.  She was told the money was with Credit Suisse.  She then made contact with a person who was ostensibly a solicitor at Credit Suisse who informed her that her distant relative had not paid his taxes and that money would need to be paid.  She was later told she would also need to pay for an anti‑terrorist certificate.  She was provided with a series of official looking documents (including British court affidavits, legal letters and bank deposit certificates).  In due course her inheritance was said to have arrived in Malaysia.  The original lawyer told her that she would be dealing with a Malaysian diplomat by the name of Isaac Kahanana.  In due course, Mr Kahanana told her of the need to obtain an anti‑terrorist certificate.  She borrowed money for that purpose.  The demand for money for various certificates and supposed government requirements continued.  Funds were forwarded by way of Western Union. Mr Kahanana said he lived in Canberra.  Ms Van den Bogaert and her partner Mr Lowe travelled to Canberra on one occasion in an attempt to meet Mr Kahanana but were told he was either in Perth or Malaysia.  The State case was that the appellant induced the couple to believe he was Isaac Kahanana and that he would, after payment of fees and charges, arrange for the inheritance to be transferred to Australia.  Ms Van den Bogaert and Mr Lowe paid the total sum of $27,394.

5. In early December 2007, Mr Ellison received an on-line message from a person calling himself David Scotfield.  He was led to believe that Scotfield was an American general serving with the US Army in Iraq who was due to retire in late February 2008.  The general wanted upon his retirement to move to the southwest of Western Australia.  As part of his duties with the United States Army in Iraq, the general was in charge of securing funds said to have been part of the personal fortune of Saddam Hussein.  The money found in the course of that exercise had been sent to the United States but two boxes had been overlooked.  The general had those two boxes in his possession.  The boxes were said to contain a total of US$30 million in cash.  Scotfield wanted to send the money to Australia and told Mr Ellison that he was ideally suited to act on the general's behalf.  He was told the boxes would be sent to Australia in the care of a United States diplomat called Jeremy.  All contact was by way of internet or email.  The general promised Mr Ellison a fee of US$15 million.  A person identifying himself as Jeremy kept Mr Ellison informed about the movement of the money.  Later Mr Ellison was contacted by a person identifying himself as Isaac Kahanana who informed him by telephone that the boxes had arrived in Sydney.  Mr Kahanana said he was a United Nations diplomat and that certain fees and charges would have to be paid before the boxes could be moved to Perth.  Mr Ellison made a number of payments totalling $14,335.

6. In March 2007, Mr Wah was contacted by a person who identified himself as an English barrister who said he had a deceased client who had left an estate of US$20.7 million in the Halifax Bank in the United Kingdom.  There was no beneficiary.  Mr Wah was asked whether he would be interested in being a beneficiary.  He was told the proposition was legal and if no beneficiary could be found, the money would be forfeited to the Halifax Bank.  Mr Wah was asked to speak with a person identified as a remittance officer with Halifax Bank.  He did so and was told the money could be credited to his account within 24 hours.  Mr Wah then received what was described as a stop order from the International Monetary Fund and was told he needed to get a certificate to release the stop order.  He began sending money for that purpose.  Mr Wah was later told by the English barrister that the money had arrived in a diplomatic vault in Canberra and he would have to pay a conversion fee to change the money from US dollars.  Mr Wah was suspicious.  He raised the matter with the manager of his local bank who referred him to the police.  He was told he had been the victim of a scam and to do nothing further.

7. In January 2008, Mr Wah was contacted by email by a man who said he was with Interpol. The alleged Interpol officer informed Mr Wah that the crooked English barrister had been prosecuted and gaoled.  He was also told that of the funds which had originally been in the Halifax Bank, some 6.7 million remained and could be delivered to Mr Wah.  Mr Wah was then contacted by telephone by a person who identified himself as Isaac Kahanana.  He introduced himself as a diplomat and informed him that he had received a consignment for Mr Wah which was being held in a diplomatic vault.  The alleged Interpol officer had told Mr Wah that Kahanana was genuine.  Mr Kahanana informed Mr Wah that certificates and fees had to be paid before the money could be released to Mr Wah.  Mr Wah paid money totalling $63,700 via Western Union.

8. Thus, the schemes involved not only convincing the complainants of their entitlement to large amounts of money, but also convincing the complainants that progress was being made in forwarding the funds to Australia such that only the various fees and certificates required by way of government regulation stood in the way of them personally receiving the money in each case.  Although the conduct the subject of the fraud offences was confined to that in which the appellant himself engaged as Edwin Bello and Isaac Kahanana, the sentencing judge made the unchallenged finding that the appellant was working with others.  He continued:

   There was clear evidence that you were informed from time to time of the outline of a fictitious scenario being perpetrated on a victim in Australia.  Your role was then to continue with that scenario … facilitating the final movement of promised funds to the expectant complainants, extricating fees from them for various fictitious governmental requirements and certificates (AB 87).

9. The appellant was found to be in possession of four passports, two Nigerian passports in his name, one Namibian passport in the name of Dieberir Ebdmere Coetzee and a Zimbabwean passport in the name of Isaac Kahanana.  There was evidence that the Namibian and Zimbabwean passports had been tampered with.  The appellant had directed the various complainants to make money transfers to one of the fictitious identities assumed by him using the Western Union money transfer service.  Posing as Coetzee or Kahanana, the appellant used their passports to collect the money forwarded by the complainants.

10. The appellant took a number of steps to minimise the risk of detection.  The mobile telephones used by the appellant to contact the various complainants were registered in names and addresses which were unconnected to the appellant.  Further, the email addresses used by the appellant to communicate with the complainants had been registered with a web‑based email site which allowed the creation of email addresses with various generic suffixes which were untraceable back to the appellant.  Finally, Western Union permits receivers of funds to collect the funds from any Western Union agent in the country of receipt.  Thus, the appellant was able to collect the money sent to him by the complainants at a different place (and State) from the destination given to the complainants.

11. The offences were committed in the period 2 June 2006 to 21 February 2008.  The appellant was aged 27 years when the offending commenced.  He was born and educated in Nigeria.  He also studied information technology in Malaysia where he met his Australian‑born wife.  They have a young child.  The appellant has been a resident in Australia on a permanent spousal visa since 2004.  He had no relevant prior convictions.

Passport offences - manifest excess

1. The legal principles are well known.  An appellate court is not entitled to intervene merely because it would have exercised the sentencing discretion in a manner different from the sentencing judge.  It is entitled to intervene if a material error of fact or law is discerned in the sentencing judge's reasons.  Alternatively, error may be inferred if the sentence is manifestly excessive.  A sentence may be manifestly excessive because the wrong type of sentence has been imposed or because the sentence imposed is manifestly too long.

2. The appellant contends the wrong type of sentence was imposed for the passport offences.  Although this ground was not formally abandoned at the hearing of the appeal, it was faintly pressed.  In my view, the ground is without merit. 

3. The maximum penalty for a breach of s 21(2) of the Foreign Passports Act is imprisonment for 10 years. The penalty reflects the significant public interest in ensuring that foreign passports are, and continue to be, a reliable means of identifying the holder thereof. The seriousness of the circumstances of the offending is amplified by the fact that each passport offence was an integral part of a broader fraudulent scheme. Finally, the repetition of the offending demonstrates that significant weight had to be given to the need for personal deterrence in addition to general deterrence. All of these considerations compel the conclusion that a term of immediate imprisonment was the only appropriate sentencing option. I would refuse leave to appeal on ground 1.

Fraud offences - manifest excess

1. The appellant challenged some but not all of the individual sentences imposed for the fraud offences.  In essence, the appellant contended that the sentences imposed for the fraud offences in which the benefit was less than $5,000 were too long.  The appellant relied on a survey of sentences customarily imposed for offences of that nature.  That information is conveniently collected in Hladin v The State of Western Australia (2005) 156 A Crim R 176 [37] ‑ [44]; Collins v The State of Western Australia [2007] WASCA 108; and Smallbone v The State of Western Australia (2008) 187 A Crim R 57 [18] ‑ [30].

2. The standards of sentencing customarily imposed for crimes of the type in question is only one of a number of relevant factors in determining whether a sentence is manifestly excessive.  Others include the relevant maximum penalty, the place which the criminal conduct occupies on the scale of seriousness of crimes of that type and the personal circumstances of the offender.  The appellant claimed that the cases reviewed in Hladin, Collins and Smallbone were relevant comparators, with the proviso that his offending was less serious than dishonesty offences committed by a person in a position of trust.  I do not agree with either proposition.  The offending in which the appellant engaged involves a rare combination of factors that elevates the seriousness of the offences.  First, the appellant was acting together with other persons with the common object of defrauding people.  The success of the appellant's fraudulent conduct depended on the prior fraudulent conduct of others, some of whom at least were outside Australia.  Secondly, implementation of the schemes would require a significant level of planning and coordination.  These two features in combination are the hallmark of organised crime.

3. Thirdly, the use of modern technology such as the internet and email enabled the perpetrators to, in effect, fish for victims in a large pool thereby maximising the prospects of a catch.  This point is made by the Australian Institute of Criminology in its publication Trends and issues in crime and criminal justice, 'Consumer fraud in Australia:  costs rates and awareness of the risks in 2008' (No 382, September 2009).  It states:

   Each year, many Australian individuals and businesses are defrauded by criminals based both within and outside Australia.  Technology has made it relatively easy to disseminate misleading and dishonest information, with potential victims now able to be targeted on a worldwide basis.  Unfortunately, there is now clear evidence that fraud costs the Australian community $8.5 billion each year … and as this paper shows, consumer fraud comprises a considerable proportion of this.

4. Advance fee schemes are within the category of consumer fraud.  Fourthly, the offences are difficult to detect.  The appellant sought to cover his tracks in Australia by the various devices detailed above.  There are also problems associated with gathering evidence and prosecuting offenders in other jurisdictions with the consequence that relatively few convictions have been obtained (Australian Institute of Criminology, Trends and issues in crime and criminal justice, 'Nigerian Advance Fee Fraud' (No 121, July 1999)).

5. These factors warrant the characterisation of the appellant's offending as being at the high end of the scale of seriousness of crimes of this type.  Moreover, there are other factors that aggravate the seriousness of the appellant's offending.  It occurred over a lengthy period and the amounts defrauded from the complainants were, in personal terms, substantial for them.  Mr Wah lost his life savings and one of the other complainants funded the payments by borrowing money.

6. When regard is had to all relevant sentencing factors, the amount of the benefit the subject of the individual fraud offences is a relatively minor factor in assessing the seriousness of the offending and did not itself require the imposition of different terms.

7. I would grant leave to appeal on ground 2 but dismiss the appeal.

Totality

1. The appellant contends the total effective sentence of 6 years is disproportionate to the criminality of the conduct as a whole and thus infringes the first limb of the totality principle.

1. One particular aspect of this claim is a contention that the trial judge failed to give sufficient weight to the appellant's plea of guilty to two fraud offences and two passport offences. The pleas of guilty related to the receipt of amounts defrauded from Mr Wah. The trial judge referred to the pleas of guilty in his reasons but did not expressly state that he had reduced the sentence on that account. If a court reduces the sentence because of a mitigating factor, it must state that fact in open court: s 8(4) of the Sentencing Act 1995 (WA). I infer from the fact that the same term of imprisonment was imposed for all the fraud and associated passport offences involving Mr Wah, and the sentencing judge's failure to state that he had reduced the sentences for the pleas of guilty, that no discount was given for the pleas of guilty.

1. Two of the guilty pleas relate to the fraud and associated passport offence occurring on 22 February 2008 when the appellant was seen by police collecting the proceeds of the fraud from a Western Union agent. The appellant was stopped immediately thereafter with the money and altered passport in his possession. The two other guilty pleas involved an occasion on 31 January 2008 when the appellant was captured on video collecting the proceeds of the fraud from a Western Union agent. In those circumstances, the pleas of guilty were likely to have been in recognition of the inevitable. The appellant pleaded not guilty to the remaining counts for which there was no direct evidence. It is difficult in these circumstances to conclude that the pleas of guilty indicated any significant remorse, acceptance of responsibility or willingness to facilitate the course of justice. Even so, some weight should have been accorded to the guilty pleas resulting in a modest discount in the sentence for the individual offences. However, having regard to the sentencing judge's approach to cumulation and concurrence, such a discount would not have had any impact on the total effective sentence of 6 years, nor should it. A total sentence of that magnitude is a proper and proportionate response to the criminality of the appellant's conduct as a whole. Thus, notwithstanding the error relating to the pleas of guilty, I am not satisfied that a different total sentence should have been imposed (see s 31(4) of the Criminal Appeals Act 2004 (WA)). I would grant leave to appeal but dismiss ground 3.

2. For these reasons I would grant leave to appeal on grounds 2 and 3 and dismiss the appeal.

3. PULLIN JA:  I agree with McLure JA.