R v Ghoubriel
[2015] ACTSC 399
•16 December 2015
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Ghoubriel |
Citation: | [2015] ACTSC 399 |
Hearing Date(s): | 15 October, 16 December 2015 |
DecisionDate: | 16 December 2015 |
Before: | Robinson AJ |
Decision: | See [30] – [37] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property dishonestly by deception – discount for pleas of guilty at late stage – no factor mitigating degree of responsibility. |
Legislation Cited: | Crimes (Sentencing) Act 2005 (ACT) s 7 Criminal Code 2002 (ACT) ss 326, 332 |
Cases Cited: | DPP v O’Neill [2015] VSCA 325 Markarian v The Queen (2005) 228 CLR 357 R v Zdravkovic [2015] ACTSC 393 |
Parties: | The Queen (Crown) George Ghoubriel (Offender) |
Representation: | Counsel Mr T Hickey (Crown) Mr G Theakston (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) Sharman Lynch Solicitors (Offender) | |
File Number(s): | SCC 185A of 2014; SCC 185B of 2014 |
Robinson AJ
In the week commencing 10 August 2015, Mr George Ghoubriel, whom I will refer to in these remarks as the offender, had two trials listed for hearing before juries. One trial concerned the complainant, Ms Evelyn Watt and the other trial concerned the complainant Ms Shamim Khan. Each complainant had been defrauded by the offender.
On 10 August 2015 counsel for the offender announced to the Court that the offender was now minded to plead guilty to the subject matter in both trials. By agreement a new combined indictment was drafted and presented later that day and the accused pleaded guilty to each count upon his arraignment. The counts were as follows:
That the offender did by deception, dishonestly obtain property, namely, a thing in action to the value of $A17,000 and $3,000 in Australian currency belonging to Evelyn Watt, with the intention of permanently depriving her of the property.
That the offender did by deception dishonestly obtain property, namely, a thing in action to the value of $A65,000 and $8.000 in Australian currency, belonging to Evelyn Watt, with the intention of permanently depriving her of the property.
That the offender did by deception dishonestly obtain property, namely, $1,200 in Australian currency, belonging to Shamim Khan, with the intention of permanently depriving her of the property.
No objection was taken to the rolled up nature of the charges in the fresh indictment.
The offence of obtaining property by deception is contrary to s 326 of the Criminal Code 2002 (ACT). This offence carries a maximum penalty of imprisonment for 10 years. I have taken note of this in accordance with Markarian v The Queen (2005) 228 CLR 357 at [30]-[31].
After the pleas of guilty and then hearing the parties, I remanded the offender in custody. Accordingly, the sentence of imprisonment will commence from 10 August 2015.
The offender was originally charged on 20 June 2014 with seven counts of obtaining property by deception and three counts of passing valueless cheques. The offender pleaded not guilty to these matters and was committed to the Supreme Court for trial. The rolled up counts in the indictment cover the original charges.
Facts
In June 2012, Evelyn Watt came to know the offender through her then partner. They became social acquaintances. On 31 July 2012, the offender proposed a business arrangement to Ms Watt whereby they would both contribute money to a wine buying business. The offender would buy wine in Griffith and resell it to restaurants in Canberra for a profit. The offender suggested to Ms Watt that she would earn $14,000 profit within the first month. A hand written document was drafted and signed. By this document each agreed to put $20,000 into a bank account. The account was in the offender’s name. Ms Watt deposited the sum of $17,000 and handed over $3,000 in cash to the offender. No wine was purchased. The offender did not contribute any money to the scheme. The offender withdrew money from the bank account. When Ms Watt enquired about the business arrangements she was told everything was fine and she would get her money back.
On 16 of August 2012 the offender and Ms Watt again met and the offender handed to Ms Watt a new hand written agreement. The agreement provided that Ms Watt was to provide an advance to the offender of $114,000 made up of the $20,000 already provided under the wine agreement and the purported “profit” of $14,000 together with a new deposit of $80,000. This second agreement was a device to dishonestly obtain money from Ms Watt. She ended up paying some $73,000 to the offender in respect of this second agreement. There was no house purchased and although the offender ultimately ended up giving to Ms Watt a cheque in the sum of $114,000 it was not met on presentation.
Shamin Khan had a mortgage with her credit union and was in arrears with her repayments. On 4 January 2013 Ms Khan was at the registry of the Magistrates Court in relation to proceedings arising from her arrears. The offender overheard Ms Khan’s conversation at the counter and later approached her offering to assist her with her financial difficulties. Ms Khan indicated that she required $5,000 in order to obtain relief from the legal proceedings. She told the offender that she could only provide $1,000. The offender opportunistically agreed that if Ms Khan would provide him with $1,000 then the offender would be able to make available to Ms Khan the sum of $14,000 in return for a commitment to repay him at $300 per week. The offender received $1,200 in cash from Ms Khan (some of which she borrowed from a friend) before she became suspicious of the authenticity of the transaction and asked for the return of the money. The offender gave two cheques to Ms Khan in the sums of $1,000 and $14,000. Again, these cheques were not met on presentation. The offender had no intention of making available to Ms Khan any financial accommodation.
As I said above this was a crime of opportunity as opposed to the offender’s dealings with Ms Watt which proceeded from some type of personal engagement between the two people. I would not characterise this as a breach of trust. It was the exploitation of a friendship or acquaintanceship of some type.
Both of these complainants were struggling financially. Ms Watt was an Assistant Nurse who lived in a two bedroom home unit with her five children and was anxious to improve her situation in life. Ms Khan was facing eviction. Both fell victim to an implausible scheme.
The offender conducted himself with the trappings of a businessman. For example, he told Ms Watt he was a company director. The handwritten agreements are written in legalese sufficient apparently to convince a non lawyer of their efficacy.
Discount
There is some utility in the pleas of guilty at a late stage even against a strong case. I will allow approximately 10 per cent discount.
Reparation
There was no evidence of what became of the money dishonestly acquired by the offender. There was no evidence of any repayment of it. Given the lapse of time, the stated means of the offender (as a person in receipt of a disability allowance) and the fact that no evidence was called of a genuine and plausible proposal to repay the amount, I will act on the basis that the money is irrecoverable.
Motive for Offending
There is no evidence of where the money went. I am not prepared to find on the evidence that any “need” was the motivation for the offending.
Victim Impact
The two complainants gave victim impact statements. It is obvious that they both lost money at a time that money was important to them and their families. In the case of Ms Watt she will take years to recover her position. However, the fraud practiced upon them had the further effects of the lack of trust of others and the blame and embarrassment arising from the perpetration of the fraud.
Criminal History
Unfortunately, the offender does not have a good record upon which to call for leniency. Leaving aside numerous driving offences, the offences of dishonestly are-
2001 Obtain financial advantage by deception
2001 Obtain financial advantage by deception
2001 Obtain financial advantage by deception
2001 Theft
2005 Theft
2005 Passing valueless cheque
2014 Theft (committed 6/6/14)
This is far from the worst criminal record particularly when one looks at the details of it but it does not provide much scope for leniency with regard to the current offences. It also reflects on the prospects of rehabilitation. It, of course, does not increase the punishment otherwise applicable to these offences.
Subjective Circumstances
The offender chose not to give evidence at the sentencing hearing. Nor was his partner of four years called to give evidence. Given what was sought to be put from the bar table, I repeated in substance my own observations in R v Zdravkovic [2015] ACTSC 393 at [29]-[36].
The offender is 64 years of age. There is evidence he is coping with the prison environment during his remand.
The offender has been receiving treatment from ACT Mental Health Services since November 2014. His current psychiatric medications appear to have stabilised his depressed condition. I add here that there is doubt over his diagnosis. For present purposes this issue does not need to be decided. There is no evidence that his time in gaol is “harder” than otherwise it would be.
There is some evidence of an underlining condition of a higher degree of seriousness than depression. I am not prepared to act upon such evidence as there is and much of it self-reported particularly against the unchallenged conclusion of Dr Bree Wyeth, Consultant Psychiatrist, that there are indications that Mr Ghoubriel has tried to harness the “sick role to elicit care from others and even possibly to avoid appearing in court in August this year.”
No submission was made to me that any underlying mental impairment affected the capacity of the offender to reason appropriately at the time of his offending. Nor could this submission have been properly made because there was no evidential basis for it. (See DPP v O’Neill [2015] VSCA 325 and many other cases)
The authors of the Pre Sentence Report under a heading of “Attitude to Offences” state:
Mr Ghoubriel partially agreed with the information contained within the Statement of Facts; however minimised his offending stating his current circumstance is largely due to a misunderstanding. He demonstrated limited insight into the victims of his offending or the impacts his behaviour may have had on them. He expressed regret for the situation he finds himself in and stated he is prepared to accept the consequences of his actions.
Of course, this lack of insight into his behaviour is far away from demonstrating any remorse.
Principles
I was supplied with statistical information gathered in relation to offending under s 326 and s 332 of the Criminal Code. I did not derive much assistance from that material. The particular factors in the cases are, in this field, very diverse.
I have had particular regard to the following features of the offending:
(a)the amounts defrauded;
(b)whether reparations have been made or not made;
(c)the planning made including the deceptions made in its implementation;
(d)the opportunistic nature of the offending;
(e)the knowledge of the complainant’s financial circumstances known to the offender;
(f)the impact of the fraud upon the two complainants;
(g)the exploitation of a personal acquaintance in the case of one complainant; and
(h)the reason the frauds were committed.
Crimes (Sentencing) Act 2005 (ACT) s 7
All the purposes set out in that section are engaged. There is no reason why principles of general deterrence should be moderated in the circumstances of this offending. There is no factor mitigating the degree of responsibility for these offences.
Totality
I have had regard to Mill v The Queen (1988) 166 CLR 59, 63 as to the totality of the criminal behaviour.
Order
For the offence of obtaining property by deception between the dates 30 July 2012 and 4 August 2012, you are convicted and sentenced to a period of imprisonment for nine months, such imprisonment will commence on 10 August 2015.
For the offence of obtaining property by deception between the dates 15 August 2012 and 22 August 2012, you are convicted and sentenced to a period of imprisonment for 18 months, such imprisonment will commence on 8 July 2016.
For the offence of obtaining property by deception between the dates 3 January 2013 and 8 January 2013, you are convicted and sentenced to a period of imprisonment for two months such imprisonment will commence on 9 May 2016
I set a non-parole period such that you will be eligible for parole on 9 February 2017.
You will serve an effective head sentence of 2 years and 5 months and be eligible for parole after 18 months.
I order that the offender pay to the Registrar of the Court the sum of $93,000 for payment out to Ms Watt.
I order that the offender pay to the Registrar of the Court the sum of $1,200 for payment out to Ms Khan
I record that in each of the three sentences above I have allowed approximately 10 per cent discount to what otherwise would have been appropriate but for the plea of guilty.
| I certify that the preceding thirty-seven [37] numbered paragraphs are a true copy of the Reasons for Sentence his Honour Acting Justice Robinson. Associate: Date: 22 December 2015 |
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