R v David Miller; R v Ibrahim Omar

[2021] NSWDC 609

District Court

New South Wales

Medium Neutral Citation:

R v David Miller;; R v Ibrahim OMAR. [2021] NSWDC 609

Hearing dates:

16 July 2021; 23 July 2021; 11 August 2021; 31 August 2021; 9 September 2021; 14 October 21; 4 November 21; 9 November 21.

Decision date:

09 November 2021

Jurisdiction:

Criminal

Before:

NOMAN SC DCJ

Decision:

Miller: For the offence of adding and abetting, reduced by 25%: 18 months to date from 9 November 2021; For the conspiracy, reduced by 25%: 6 years and 2 months imprisonment to date from 9 May 2022. For both offences, there is a non-parole period of 4 years. The effective sentence is one of 6 years and 8 months with a non-parole period of 4 years. The offender is eligible for release to parole on 8 November 2025.

Omar: For the conspiracy, reduced by 25%: 6 years imprisonment to date from 9 November 2021. There is a non-parole period of 3 years and 8 months. The offender is eligible for release to parole on 8 July 2025.

Catchwords:

SENTENCING – Conspiracy to defraud – aiding and abetting – imprisonment

Legislation Cited:

Criminal Code Act 1995 (Commonwealth);

Crimes Act 1914 (Commonwealth)

Category:

Sentence

Parties:

Regina;
David Miller;
Ibrahim Omar.

Representation:

Solicitors:
Mr Farah (Crown)
Mr Hajjar (Defence)

File Number(s):

2019/54285;
2019/218892

Publication restriction:

Non-publication order in relation to XY – as per orders of A/Judge Armitage 2.11.20

Judgment

1. The offenders David Miller [‘Miller’], aka Mohammad Omar, and Ibrahim Omar [‘Omar’] come before the court for sentence on Commonwealth offences.

2. Both are charged with an offence of conspiracy to defraud. They are charged with conspiring with each other and XY and diverse others. This offence is contrary to s.135.4[1] of the Criminal Code which provides a maximum penalty of 10 years imprisonment.

3. XY pleaded guilty to two offences under this provision. After plea negotiations by these offenders the conduct previously reflected in two charges was incorporated into a sole count. The whole criminality is now reflected in this sole count covering the period 15 January 2017 to 31 December 2017. The entering of pleas, albeit to a strong Crown case, was of considerable utilitarian value as it avoided a lengthy trial and associated inconvenience to witnesses. Miller entered his plea on arraignment in this Court and Omar entered his plea in the Local Court. The timing of the pleas and the different utilitarian benefits will normally be reflected in the different reduction accorded to each. However, the prosecution accepted that the offering and acceptance of the sole count was at the earliest opportunity. I shall reduce each sentence by 25%.

4. Miller pleaded guilty in the Local Court to additional but separate conduct reflected in an offence of between 9- 14 August 2016 aiding and abetting a named employee to deal with the proceeds of crime. This offence is contrary to s 11.2[1] and s.400.9 of the Criminal Code which provides a maximum penalty of 3 years imprisonment. The sentence will be reduced by 25%.

5. There has been a delay in commencing proceedings and finalising the court proceedings. The delay in investigating is explicable given the nature of fraud and hiding behind companies and front people. Both offenders were on notice that the operation was discovered and that their involvement may be detected. There was uncertainty. It requires only the most limited of amelioration to sentence.

Facts

6. The Crown tendered fulsome facts and also a summary of agreed facts supporting the conspiracy count. There are separate facts tendered to support the proceeds of crime count. I have had regard to the full documents.

7. I propose to address the offending chronologically.

Miller only- Proceeds of crime

8. Miller ostensibly controlled a number of child care centres in 2016. On 9 August 2016 the Commonwealth suspended four centres due to suspected irregularities. On this same day the AFP executed search warrants on the business and home addresses of the offender. Ashley Yarza worked for the offender and the charge alleges she dealt with the proceeds of crime. The offender asked Ms Yarza on the evening of the execution of the search warrants to allow him to transfer money into her accounts to facilitate his payment of legal and other expenses after his accounts were frozen. Between 10 and 14 August 2016 he made 6 separate deposits into her account totalling $140,000 from an account he held in a false name. The offender instructed Ms Yarza how to withdraw the funds. She withdrew, and forwarded as directed, $135,000. She was paid $3000.

9. In assessing the objective seriousness, I have taken into account the period of the offending and the benefit gained. It was over only a short period involving him making six separate deposits and requiring eight withdrawals. The offender recruited his employee by deceptive means and provided instruction to her. He was laundering money at his direction with her assistance. His role was significant. It involved a reasonable amount of money although I am mindful the lower threshold of the offence is $100,000. The money was not recovered or repaid.

10. This is a moderately serious example of the offending within the offence provision.

Both - Conspiracy to Defraud

11. David Miller, Ibrahim Omar and XY, conspired together to purport to be genuine child care providers and defraud the Commonwealth Department of Education of over $9 million by falsely claiming and obtaining child care payments.

12. Between January and July 2017, the conspirators purchased two child care companies called iWonder and iGrow as front companies – and falsely claimed on behalf of these companies 398,936 sessions of child care on behalf of 2,132 children, for the provision of family day care services for children, which were never legitimately provided. As a result, they defrauded the Commonwealth Department of Education of a sum amounting to $9,274,016.

13. The conspirators also used ‘front persons’ for the front companies to distance themselves from the fraud. The ‘front persons’ were each appointed directors of the purported family day care services and signatories to the respective company bank accounts.

14. The ‘front person’ of iWonder was Zeinab Mohammad Hussein. The ‘front person’ for iGrow was Zahraa Saadi Majeed Lami.

15. The scheme involved the use of identity information of numerous children, parents and educators. This identity information was either purchased on the black market or purchased directly from parents for a fee. XY admitted that no actual child care took place and that they bought the children’s identity information to lodge false claims for child care benefits.

16. The false iWonder and iGrow claims partly overlapped. iWonder’s claims for child care payments commenced on 16 January 2017 and iGrow’s false claims commenced on 20 June 2017. The false claims for both stopped when they were discovered by the Department of Education in July 2017. Around this time, July and August 2017, the conspirators desperately tried to release the great bulk of the iGrow fraud proceeds from suspended bank accounts.

The child care payments to iWonder

17. Over a period of 6 months (between 6 February 2017 and 20 July 2017), the Department of Education paid child care payments into iWonder’s bank account amounting to $3,549,712. A total of $3,264,813 was subsequently transferred from the iWonder bank account directly into bank accounts controlled by XY or her family. From there a significant proportion was transferred into accounts controlled by Miller and Omar, which included the Fayhaa Wholesale Poultry bank accounts.

18. The iWonder bank account holder (Ms Mohammad Hussein) has admitted that she for the most part, ceded control of the account to XY and Miller.

19. All the money paid as a result of the iWonder fraud was drawn down over the same 6 months period and none of it has been recovered.

The child care payments to iGrow

20. The execution of the iGrown fraud occurred over a shorter period, about a month, and involved larger claims. Between 20 June 2017 and 18 July 2017, the Department of Education received electronic claims for child care payments from iGrow claiming 264, 303 sessions of child care on behalf of 1,303 children.

21. Between 26 June 2017 and 19 July 2017, the Department of Education paid a total of $5,724,303 into iGrow’s bank account.

22. Over a two day period (19 and 20 July 2017) XY, disguised in a black niqab, and Lami, attended upon the Guildford and Granville branches of the Commonwealth Bank and drew down a total of $4,010,000. They did this by a telegraphic transfer of $1 million to a bank account controlled by Miller and Omar and the purchase of bank cheques valued at $3,000,000. A cash withdrawal of $10,000 cash was given to Lami. All but $219,605 of the $1 million telegraphic transfer and the $10,000 cash was recovered (i.e. $790,395 was lost).

23. On around 19 July 2017, the Department of Education discovered the fraud and suspended iGrow’s approval to operate, precluding further lodgments. The various bank accounts into which the iGrow proceeds were traced by the AFP and also suspended before most of the money was lost. Consequently, $3,880,394 out of $5,724,304 of the fraudulently obtained iGrow child care payments were retrieved by the Government – i.e. $1,843,910 was lost.

24. On 3 September 2017, Omar sent the group a message possibly suggesting that the proceeds of the iGrow fraud were divided up 1/3 and 2/3’s.

25. Subsequent admissions from the conspirators indicate that Miller and Omar received a combined benefit of about 50% of the proceeds:

On 21 January 2018, XY and Miller discuss how the spoils of a new unrelated scheme should be funded proportional to the expenditure. XY reminds Miller that in the iGrow and iWonder schemes she paid for half of the data and received half the spoils and that is how it should be in this new scheme. Miller points out that in this new [unrelated] scheme she has only paid a 1/3 for the data so she should only receive 1/3 of the proceeds. Miller also toys with the idea of going it alone. On the next day (22 January 2018) XY reminds Omar that in regards the iGrow and iWonder fraud the proceeds were divided 50/50 because she paid half for the data etc. Omar advises her that if she wants 50% of the proceeds of the new scheme, then she has to contribute 50% of the expenditure.

26. On 4 September 2017, in a WhatsApp message exchange, XY and Miller admitted that the frauds regarding iWonder and iGrow were poorly executed, in particular the hurried nature of the iGrow fraud. In this exchange XY asked Miller if he wanted her out of the scheme to which he replied “No” he just wanted things done right.

27. On 3 May 2018, simultaneous search warrants were executed by federal agents on XY’s residence and the residence and business addresses of Miller and Omar.

28. At XY’s residence, the AFP seized her mobile phone, which contained numerous WhatsApp messages which incriminated the conspirators and others involved in the offences.

29. At the residential and business addresses of Miller and Omar, the AFP found a large amount of material relevant to the offences, including: iGrow payment summary reports, child payment history reports, child benefit and rebate statements, payment advice reports, bank deposit advices, timesheet summary reports and enrolment summary reports; iWonder timesheets, timesheet history reports, child care benefit rebate statements and enrolment summary reports; Harmony software logs; relevant business documents; bank statements for various accounts into which proceeds of the offences had been received; gold bars and coins and $58,950 in cash.

30. In assessing the objective seriousness, I have taken into account the period of the offending and the benefit gained. The offence was sustained and deliberate. I will take into account that two different child care centres, each of which was secured to commit the fraud and not utilised legitimately, were utilised and were a continuing and at times overlapping offence albeit reflected by one offence. Others were recruited to facilitate the fraud, through providing details of children or purported front people or educators. Data was sourced illegally to be used to submit claims.

31. I have reviewed the full facts to assess the respective roles of the three named conspirators. All were involved in entering the false data, albeit in differing numbers and all obtained considerable money from the scheme. 398,936 sessions of child care of behalf of 2132 children for the provision of child care never provided was involved. This systematic conduct yielded payments to the value of $9,274,016. Only some money was retrieved. $5,393,622 was not recovered. The offenders have not assisted to retrieve the missing amount. The money was deliberately funnelled through various accounts and it is not possible to ascertain the ultimate recipient. The messages accessed do not reflect anyone other than the three named conspirators were involved in financing and organising the scheme or in receiving payment. The suggestion is that XY either received a half or a third of the fraudulent payments but that is not certain. Evidently each contributed to fund the scheme initially. Each was involved in impersonating others on phone calls and each attended the bank as required. Considerable incriminating documentation was located in the possession of these offenders.

32. It was submitted on behalf of Omar that his involvement should be assessed as lower than that of XY and Miller. Nine factors are nominated. The first is not pertinent to the submission. The other matters identify the various acts of others in relation to an ongoing course of conduct where each performed different acts. I do not regard these as supporting that others were more important. To some extent, these acts exposed the perpetrators to detection.

33. I would regard each as an equal principal. In making this determination I am mindful that this does not accord with the finding made in sentencing XY.

34. The text exchanges between the three named conspirators does not suggest there was anyone else involved at their level or higher.

35. The amount of money involved well supports a significant component of greed.

36. I assess the offence as falling well above the mid-level of objective seriousness.

37. I do not incorporate into consideration the likely costs involved in investigating the fraud.

38. One ‘front person’, Lami, was arrested on 3 August 2017. The offenders continued with the fraud. These offenders were on notice from this point that their criminality may be detected and result in proceedings. This did not discourage them. Search warrants were executed in May 2018 and XY was arrested. Miller was arrested on a different charge on 18 February 2019. Proceedings for the joint fraud commenced on 10 July 2019. Negotiations including merging separate counts resulted in the pleas being entered in June and July 2020. The proceedings were listed for sentence with XY on 30 October 2020 but were referred to the Drug Court on the application of the offenders. It was not until 9 March 2021 that there was a determination on jurisdiction. I take into account the delay from the offending ceasing until proceedings were commenced and finally appearing for sentence. This would have been a period of uncertainty whilst initially waiting to ascertain if their involvement was detected. I do not consider this warrants any amelioration to sentence.

39. The offender Omar, aged 30, comes before the Court as a person of prior good character and no convictions. His offending commenced in 2017 and therefore his good character only extends to when he was aged 25.

40. The offender Miller, aged 32, has a number of entries on his criminal history. During the period of offending he was charged with a weapons offence however he received a bond without conviction. The only convictions are for a number of dishonesty offences committed in 2018 after this offending. He received a Community Corrections order and Community Release Orders. His offending commenced in 2016 and therefore his good character only extends to when he was aged 27.

41. Both offenders’ antecedents do not operate to disentitle each to some leniency.

42. The offenders hid behind others to commit the fraud. They did not exploit their good character and I do not limit its use.

43. Both offenders did not give evidence on sentence but relied upon material contained in reports and documents. As they are brothers some aspects of their backgrounds are similar. Miller is the eldest child. They are of Egyptian Muslim background and spent part of their schooling being educated in strict Islamic schools.

44. These reports contain a hearsay account of a number of issues including the offender’s background, drug use and influencing factors.

45. There is always a difficulty in accepting hearsay accounts and this is exacerbated when an offender is an admitted sustained fraudster.

46. For example, the offender Miller advanced he was invited to commit the fraud by XY, he had drug debts and he said XY encouraged him to continue when he was affected by drugs. He advanced that he spent his share of the money on drugs, prostitutes and gambling. This excuse of gambling was one discussed with XY prior to apprehension. The circumstances do not suggest it to be raised legitimately. He had committed the other offence by this time without XY’s involvement.

The offender Miller

47. There are no reports from the offender’s treating psychologist and psychiatrist, Dr Tsang. There is confirmation of 16 appointments in 2 bursts with a psychologist in 2019 and 2020. There is confirmation of 33 appointments with Dr Tsang from 16 December 2019. A psychiatrist confirmed participation in the St John of God after care program.

48. Miller relies upon three reports of Dr Alexander Phung, two dated 28 October 2019 albeit one to the referring doctor and one 14 July 2021.

49. He recounted to Dr Phung that he commenced using cannabis at 17 or 18, abstained and relapsed at 21. He transitioned to methamphetamine, cocaine and GHB. Cocaine was his drug of choice. He commenced but did not finish a university degree. More recently he commenced a TAFE course that he did not complete. He advanced there were no positive role models in school or early adult life. Dr Phung opines that the lack of positive role models was a major underlying childhood influence, connected to substance abuse and then intertwined with mental illness.

50. The offender outlined to Dr Phung diagnoses of schizophrenia and substance use disorder dating from 2015. After being arrested he completed residential rehabilitation. It is noted he relapsed afterwards and attended the emergency department once after drug use. The St John of God discharge summary notes the offender was drug seeking during the 27 days of admission. He mentioned overusing prescription drugs in his 20’s. He stated he was using illegal and prescription medications at the time of offending. He is still prescribed drugs often misused such as Endone and Ritalin.

51. Dr Phung was asked to comment on causally linked mental health issues. He advanced that at the time of offending the offender had polysubstance use disorder; psychotic disorder referencing the schizophrenia, major depressive disorder referencing the depressive mood commencing in 2011 and a gambling disorder.

52. It is opined that the offender’s gambling and substance disorders were a key motivator to offend. The other medical evidence does not support that the schizophrenia and depressed mood was not responsive to treatment. He was capable of committing the tasks required to further the fraud. The offender is the sole source for much of the underlying information. He is the sole source for the existence of a gambling problem. He stated in a text that he would advance he had a gambling problem to explain his involvement.

53. Dr Phung noted reviewing Dr Tsang’s treatment notes from 2020. There is reference to decreasing anti-psychotic medication.

47. A diagnosis of multiple sclerosis is noted without any specialist report. I accept this diagnosis.

48. His association with XY is also advanced as a contributor. However, he already was committing the 2016 offence before his association with her and independent of any involvement.

49. Dr Phung proposed a psychiatric treatment plan in October 2020. It is opined that the offender is committed to treatment.

50. The St John of God material documents the offender had little insight regarding his drug use, was ambivalent about drug use and was a high risk of relapse.

51. The prescription information from his GP reflects attendances in late 2016 and then not till late 2017. A number of drugs including opiates prone to misuse are listed. There is no documented depression in the brief medical history.

52. Most belatedly the offender prepared an unsigned letter of remorse. The prosecution did not oppose the tender. The expressions of remorse were not on oath. There is consideration of the impact on himself and his family before consideration of the true victims of his conduct. It was not transitory conduct. His offending, over both offences, occurred over about 16 months.

53. The offender spoke to Dr Phung of remorse. It was opined he demonstrated a high level of contrition and remorse. Dr Phung advanced a low risk of reoffending. If the offender is not truthful about his circumstances this clouds the opinions offered reliant upon them. I do not accept he was honest about his motivators.

54. Miller has failed to satisfy me of genuine remorse despite the pleas of guilty and both his direct and hearsay accounts. He has sought to minimise and deflect.

55. I do accept the opinion that the offender’s background influenced his decision to use illicit drugs and that subsequently he developed mental health issues. I accept that he exercised poor judgement in deciding to commit fraud. However, it was sustained conduct over a year on a grand scale. It was planned and deliberate and he was a crucial player. He set out to, and did, secure a huge payment from the commonwealth government.

56. His mental health issues and related substance abuse warrants a modest amelioration to the sentence.

The offender Omar

64. As with Miller, Omar is assisted by three reports from Dr Phung, psychiatrist, from 2020 and July 2021. Omar documented being bullied at school and not supported by his parents. He commenced using cannabis at 16 and escalated to MDMA and prescription drugs at 19 before starting cocaine. He abused opiates. He advanced to Dr Phung that he used drugs to self-medicate.

65. He started but did not complete tertiary education. He attributes this to his drug use. Omar indicated he became involved in child care. It is indicated this is the only type of employment he has secured. The medical notes reflect he falsely portrayed himself as an accountant. He is currently unemployed.

66. After being charged he attended residential rehabilitation in July 2020 at St John of God for substance abuse. He did not complete the 3 week program and left after 13 days and it is stated he relapsed after 3- 4 weeks. He is described as being ambivalent about ceasing drug use and his engagement in group programs was poor. He left on day 13 to see his oncologist and failed to return thereby securing his discharge. It is stated he complied with the discharge plan to maintain psychological and psychiatric engagement.

67. He was diagnosed with testicular cancer in 2020 and it is stated he subsequently experienced depressed mood and sought out psychological treatment. His GP stated he was unfit for work from April to July 2020. There is reference to opiates but no illicit drugs on the medical notes. This medical event is part of his history but does not inform offending. The most recent report indicates that the offender is at risk of cardiovascular issues unless he reduces his weight and exercises. He will be able to attend to both these issues in custody.

68. The offender indicated to Dr Phung he offended to obtain money to support his drug use which cost a few thousand per week. Clearly the financial benefit went well beyond funding his drug use. He was in a relationship with XY.

69. Dr Phung diagnosed substance use disorder and major depressive disorder. I observe the brief medical history provided by the GP documents anxiety in 2016 and depression in April 2017. The prescriptions chart does not refer to medication to treat depression during the offending period. There is reference to drugs prone to abuse such as Ritalin and Endone. Dr Phung recommended a treatment plan. He, as for Miller, highlights the absence of positive role models, failures by his parents and teachers as leading him to abuse substances. It is opined that his compulsion for drugs was a key motivator for his offending. He stated it impaired Omar’s judgement.

70. Dr Phung opines that Omar regrets his offending, that he had a high level of remorse and contrition, and that his offending has proven determinantal to his mental well-being. He advanced a low likelihood of reoffending.

71. His mental health issues and related substance abuse warrants a modest amelioration to the sentence.

Principles

72. I have had regard to the purposes of sentencing identified in s.16A Crimes Act [Cth].

73. The offenders seek to rely on the background of deprivation. I do not accept that there should be some moderation of sentence. Whatever the difficulties experienced as a child and young adult they both had a sound albeit strict education, tertiary prospects and a pro-social family. They abused drugs which created a desire for money to fund the use. This offending was planned and well- orchestrated. There was access to initial money to start the program and buy the existing child care centres. The money sought to be made from the offending was significant and well beyond what was required to fund drug use. I have made an allowance of mental health issues.

74. I accept that sentences should recognise the harm done to the community. Exploiting lax arrangements that are intentionally so to facilitate legitimate payments deprives the government of funds and risks the tightening of provisions and hindering of legitimate access.

75. Both offenders agreed to consent orders for forfeiture of gold and money. This consent was indicated on the day of the proceedings on sentence. It is a recognition of the inevitable. I do not regard it as evidencing remorse. There is a restriction on using it in any other way. Nether offered to return the vast amount of money secured from the fraud.

76. Both offenders’ prospects of rehabilitation and of not reoffending are difficult to gauge. I note the opinions offered by Dr Phung. This was in part informed by his satisfaction of fulsome remorse and based upon the information supplied by the offenders. I am cognisant that other than long term involvement in illicit drugs throughout their adult years there was no other criminal conduct until their late 20’s. However, this was conduct that continued over a year and continued even when they were aware the operation was under suspicion. They brazenly continued. The spoils of their conduct were significant for what in effect was a computer driven operation. I have not accepted there to be fulsome remorse. I do not accept all the background each offered. I accept there has been no further offending. It follows that specific deterrence has a continuing role to play.

77. General deterrence and denunciation have an important role for the offences given the prevalence and ease which they are committed. I do not determine that any mental illness relied upon diminishes the importance of general deterrence. A submission was advanced on behalf of Miller that the imposition of an ICO where appropriate satisfied general deterrence. I accept this general proposition. However, this matter is not an occasion where an ICO is appropriate or available.

78. Consistency in sentencing is important, but what is necessary is consistency in the application of the relevant legal principles and not numerical equivalence. I have had regard to the asserted comparable cases relied upon by the Commonwealth. None is truly comparable but each provides guidance in limited ways. I have considered salient issues such as the plea and findings of remorse, the role of mental health, the different roles, the different periods over which offences occurred, the number of separate acts undertaken and the amount involved.

79. When sentencing Miller, the principle of totality requires that I consider whether an aggregation of sentences to be imposed is a just and appropriate measure of the total criminality involved. I consider that the separate offending in nature and time supports a component of accumulation.

80. Both offenders also participated in short term residential rehabilitation. Little is known of the restrictions during the program. I do not intend to regard these periods as a form of quasi-custody.

81. Each has been in isolation for a period of time due to contracting COVID-19 twice. For a period of weeks it was a condition of bail that they not depart home except for testing or medical appointments. This mirrored the health requirements that applied to each. This status has delayed the imposition of what was an inevitable custodial sentence.

82. This will be the first sentence of imprisonment for both offenders.

83. Two co- offenders involved in this criminality were sentenced by Acting Judge Armitage and consideration of parity arises; less so for the offender Lami given her separate offending and far less significant role played. Both were of prior good character. The delay in sentencing was taken into account. Both were found to have moved towards rehabilitation. I observe the sentencing Judge is an Acting Judge and that the matter was not sought to be listed before him when the date was obtained. Even if available, which is unlikely, there would be a further unnecessary delay. The matter will of necessity proceed separately. I am cognisant of the reasoning, findings and sentences.

84. XY was sentenced for two separate conspiracies in lieu of the merged single offence. The maximum penalty for each was 10 years imprisonment and the starting point for each offence was 7 years and 6 years accumulated to a starting point of 8 years imprisonment. The existence of two separate charges provided for a lengthier sentence given the maximum penalty and accumulation. Limited accumulation occurred. The sentence, after a reduction of 50% was a term of 4 years imprisonment with a non-parole period of 2 ½ years. She was found to be a person, with these two offenders, who orchestrated the criminal enterprise to defraud over $9 million over a period of a year. The facts are not dissimilar to those presented for the index offenders. However, she advanced she was dependant on Omar during the period of offending and ‘not in her right mind’. The sentencing Judge sentenced on the basis that the offenders had substantial role as at the top and XY was below in the hierarchy and acting under their direction. There was a finding of some remorse. There was disadvantage and mental health issues deriving from events in Iran and following. General deterrence was not as significant given her mental health. She commenced using illegal drugs in 2016. She was in a relationship at times with Omar. She was well-educated at tertiary level. The sentencing judge did not make much of the assertion that XY was vulnerable to the influence of Omar. He did accept the role of PTSD. Her risk of reoffending was found to probably be low.

85. Zahraa Lami was sentenced after pleading guilty to a sole offence of recklessly dealing with the proceeds of crime contrary to s.400.3[2] Criminal Code which provides a maximum penalty of 12 years imprisonment. This offence of money laundering involved her presenting as a front person for one of the fake child care providers. Ultimately, over 2 days she was involved in moving over $4 million. The sentencing judge found her knowledge was likely of only $1.2 million. She pleaded in this Court and received a reduction of 20% to her sentence to reflect that plea. She was 34 at the time of her involvement and was found to be functionally illiterate in English and a stay at home mother. She was found to have limited remorse, to be at low risk of reoffending and to have mental health issues. She repaid $10,000. After the reduction of 20%, she received a term of 4 years and a non-parole period of 2 years.

86. Having considered the sentence imposed on XY, and my finding that all three are equally complicit, and having reflected on the varying subjective cases I would see no reason of fairness to start from other than the same or a similar starting point. In so doing I acknowledge that XY was found by the sentencing judge to be lesser involved and lower in the notional hierarchy and there were more favourable findings on sentencing principles and the subjective case.

87. What does inform utilising the same starting point is the available maximum penalty. I have one more serious offence as all the criminality is reflected in a sole count. XY had two separate offences each of which reflected lesser criminality. There was an available 10 years on each lesser offence. Against this less serious offence, and considering other factors, the sentence Judge determined the offences to be at 6 and 7 years as the starting point, or 8 years when all the criminality was considered.

88. I do not intend to promote unfairness by continuing with the finding XY was less involved. However, I propose to commence guided by the starting point. All three are equally culpable. The only matter distinguishing Omar from Miller is Miller’s other offence and his antecedents, which are limited when considering those existent at the time of offending. Only a modest distinction follows. Their subjective cases do not warrant differing outcomes. Miller’s starting point will be modestly higher than that of Omar and XY.

89. Having considered all the possible alternatives, I am satisfied no penalty other than full-time imprisonment is appropriate. There has been no pre-sentence custody. In determining sentence I am guided by the objective seriousness of the offending and the operating subjective case.

90. In considering Miller I have reviewed the medical evidence and Dr Phung’s opinion about the extent to which his needs would be met in gaol. Dr Phung advances his experience in Justice Health. I have considered the ongoing appointments concerning Omar for urological and oncological issues.

91. I consider that Justice Health are well capable of attending to these medical needs to a satisfactory level.

92. I accept that the conditions are more restrictive in custody due to COVID-19.

93. The offenders are convicted of each offence for sentence.

Sentence

Miller:

For the offence of adding and abetting, reduced by 25%: 18 months to date from 9 November 2021;

For the conspiracy, reduced by 25%: 6 years and 2 months imprisonment to date from 9 May 2022.

For both offences, there is a non-parole period of 4 years.

The effective sentence is one of 6 years and 8 months with a non-parole period of 4 years.

The offender is eligible for release to parole on 8 November 2025.

Omar:

For the conspiracy, reduced by 25%: 6 years imprisonment to date from 9 November 2021.

There is a non-parole period of 3 years and 8 months.

The offender is eligible for release to parole on 8 July 2025.

The Commonwealth sought forfeiture of the gold bars and money seized during the execution of the warrant. Both offenders consented to the order being made. I make that order.

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Decision last updated: 11 November 2021