R v Harry Ghamraoui
[2008] NSWDC 31
•8 March 2008
NEW SOUTH WALES DISTRICT COURT
CITATION:
R v Harry Ghamraoui [2008] NSWDC 31
FILE NUMBER(S):
07/11/0530
07/11/0532
HEARING DATE(S):
8/02/08
15/02/08
8/03/08
JUDGMENT DATE:
8 March 2008
PARTIES:
Regina
Harry Ghamraoui
JUDGMENT OF:
Knox SC DCJ
COUNSEL:
Crown: Ms Blizard
Defence: Mr Webb
SOLICITORS:
CATCHWORDS:
Publish False Statement With Intent to Obtain Financial Advantage
Dishonestly Obtain Financial Advantage by Deception
Use Copies of a False Instrument
Robbery
Form 1 offences
s166 certificate
Drive vehicle in manner that menaces other with intent
Negligent driving
Drive whilst disqualified
drug addiction
gambling addiction
denies knowledge of offences
on conditional liberty at the time of the offences
position of trust
long history of prior offences
plea of guilty
mid-range criminality
special circumstances
LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
CASES CITED:
Thomas [2007] NSW CCA 19
R v Youkhana [2004] NSWCCA 412
R v Henry and Ors [1999] NSWCCA 111
R v Murchie (1999) 108 A Crim R 482
R v Stanley [2003] NSWCCA 233
R v Lesi [2005] NSWCCA 63
R v Corbett (1991) 52 A Crim R 112
R v Pont (2000) 121 A Crim R 302
TEXTS CITED:
DECISION:
Fraud matters
In relation to count 1, the offender is sentenced to a fixed term of imprisonment of 3 years and 6 months commencing on 18 April 2007 and expiring on 17 October 2010.
In relation to counts 2, 5 and 6 the offender is sentenced to a fixed term of 3 years imprisonment commencing 18 April 2007 and to expire on 17 April 2010, which is to be served concurrently with the sentence imposed in relation to count 1.
In relation to counts 3, 4 and 7, the offender is sentenced to a fixed term of imprisonment of 2 years commencing on 18 April 2007 and expiring on 17 April 2009.
In relation to the robbery count, the offender is sentenced to a term of imprisonment of 3 years 9 months commencing on 18 April 2010 and expiring on 17 January 2014 with a non-parole period of 2 and ½ years imprisonment commencing on 18 April 2010 and expiring on 17 October 2012.
On the charges on the section 166 certificate I impose the following sentences to be served concurrently with this sentence:
Driving with menaces fixed term of 12 months imprisonment commencing on 18 April 2010 and expiring on 17 April 2011 with a period of disqualification of 5 years commencing on 18 April, 2007;
Negligent driving – a period of disqualification from driving of 1 year commencing on 18 April, 2007;
Drive while disqualified fixed term of 12 months imprisonment commencing on 18 April 2010 and expiring on 17 April 2011 with a period of disqualification from driving of 2 years commencing on 18 April, 2007.
The total effect of the sentence is therefore that the offender will be sentenced to a total non-parole period of 5 years and six months imprisonment to commence 18 April 2007 and to expire on 17 October 2012, with a parole period of 1 year and 3 months to commence 18 October 2012 and to expire on 17 January 2014.
JUDGMENT:
- 45 -
JUDGMENT
Fraud offences
Indictment
The offender was arrested and charged on 20 October 2005. He was charged and admitted to bail which was later refused on 20 June 2007. He has been in custody since then.
The offender was committed to the District Court on 11 September 2006 for trial.
The trial was listed to commence on 18 June 2007, but the offender failed to appear. The trial was then listed to commence on 24 September 2007, on which day the offender pleaded guilty to the following counts on an indictment:
1. On 28 October 2003 at Sydney in the State of New South Wales, did use copies of false instruments, namely, documents purporting to be a copy of a birth certificate and a copy of an Australian passport both bearing the name Peter GANTOS, knowing them to be false instruments, with the intention of inducing Vision Lending Australia Pty. Limited to accept them as copies of genuine instruments and thereby to submit an application for a loan in the sum of $472,500.00 in money to the prejudice of Interstar Securities (Australia) Pty. Limited.
This count was brought pursuant to s.301(2) of the Crimes Act 1900.
The maximum penalty for this offence is 10 years imprisonment.
2. On 8 December 2003 at Sydney in the State of New South Wales, did use a copy of a false instrument, namely, a document purporting to be a copy of a bank statement for account No. 732 076 – 42 2079 issued by Westpac Banking Corporation in the name of Peter GANTOS, knowing it to be a false instrument, with the intention of inducing Vision Lending Australia Pty. Limited to accept it as a copy of a genuine instrument and thereby to submit an application for a loan in the sum of $472,500.00 in money to the prejudice of Interstar Securities (Australia) Pty. Limited.
This count was brought pursuant to s.301(2) of the Crimes Act 1900.
The maximum penalty for this offence is 10 years imprisonment.
3. On or about 11 February 2004 at Sydney in the State of New South Wales, by deception, namely, by submitting a loan application in the false name of Peter GANTOS, did dishonestly obtain a valuable thing for Nenos SHILIMON, namely, a cheque in the sum of $200,000.00 in money drawn in his favour, a valuable thing for Rana GHAMRAOUI, namely, a cheque in the sum of $200,000.00 in money drawn in her favour and a financial advantage for himself, the said Harry GHAMRAOUI, namely, a deposit of $62,044.92 in money into an account in the said false name of Peter GANTOS held at the Sydney branch of the Arab Bank Australia Limited.
This count was brought pursuant to s. 178BA (1) of the Crimes Act 1900.
The maximum penalty for this offence is 5 years imprisonment.
4. On 28 October 2003 at Sydney in the State of New South Wales, with intent to obtain for himself a financial advantage, namely, the broker’s commission on a loan in the sum of $468,000.00 in money, did publish a statement, namely, a loan application knowing it to be false or misleading in a material particular, namely, by falsely representing that Redywan Gamrouy was the applicant.
This count was brought pursuant to s 178BB(1) of the Crimes Act 1900.
The maximum penalty for this offence is 5 years imprisonment.
5. On 28 October 2003 at Sydney in the State of New South Wales, did use a copy of a false instrument, namely, a document purporting to be a copy of a birth certificate bearing the name Redywan GAMROUY, knowing it to be a false instrument, with the intention of inducing Vision Lending Australia Pty. Limited to accept it as a copy of a genuine instrument and to thereby to submit an application for a loan in the sum of $468,000.00 in money to the prejudice of Interstar Securities (Australia) Pty. Limited.
This count was brought pursuant to s.301(2) of the Crimes Act 1900.
The maximum penalty for this offence is 10 years imprisonment.
6. On 16 December 2003 at Sydney in the State of New South Wales, did use a copy of a false instrument, namely, a document purporting to be a copy of a driver’s licence bearing the name Redywan GAMROUY, knowing the said document to be a false instrument, with the intention of inducing Vision Lending Australia Pty. Limited to accept it as a copy of a genuine instrument and thereby to submit an application for a loan in the sum of $468,000.00 in money to the prejudice of Interstar Securities (Australia) Pty. Limited.
This count was brought pursuant to s.301(2) of the Crimes Act 1900.
The maximum penalty for this offence is 10 years imprisonment.
7. On or about 29 December 2003 at Sydney in the State of New South Wales, by deception, namely, by submitting a loan application in the false name of Redywan GAMROUY, did dishonestly obtain a financial advantage for a person or persons unknown, namely, a deposit of $468,000.00 in money into an account styled Redywan GAMROUY held with Vision Lending Australia Pty. Limited.
This count was brought pursuant to s. 178BA (1) of the Crimes Act 1900.
The maximum penalty for this offence is 5 years imprisonment.
Form 1
There are a number of matters listed on a Form 1 which the offender has asked that I take into account when sentencing for count 1. Those offences are set out below.
Robbery offence
The offender was arraigned in the District Court on 10 August 2007, having been committed to that Court for trial.
The trial was listed to commence on 12 November 2007, on which day the offender pleaded guilty to the following indictment for robbery:
On 27 July 2006 at Lucas Heights in the state of New South Wales did rob Stephen Camillieri of the sum of $30.00 in money, the property of the said Stephen Camillieri.
This count was brought pursuant to s. 94 of the Crimes Act 1900.
The maximum penalty for this offence is 14 years imprisonment.
Related offences
The offender has requested that the Court sentence him on three related offences set out on a s166 certificate, namely: Drive vehicle in manner that menaces other with intent; Negligent driving; and Drive whilst disqualified.
Facts
Fraud offences
The agreed facts in relation to the fraud offences were tendered and marked exhibit S2. Those facts are as follows:
There were two real estate transactions which form the basis of the charges against the offender.
Between the 11th of September 2001 and the 21st of December 2003 the offender was the Director and Secretary of a company styled South West Financial Solutions Pty Ltd, which was conducted and operated by the offender; its business included mortgage broking.
The offender worked as a self employed independent consultant, trading as South West Financial Solutions Pty Ltd, for mortgage originator, Vision Lending.
Vision Lending is a mortgage manager and sources its funds from various wholesale funders including Interstar Securities (Australia) Pty ltd.
Mt. Pritchard
On the 9th of July 2003 a residential property located at 44 Hamel Road, Mount Pritchard was sold by Mr. Fountas, for the sum of $210,000, to Rana Ghamraoui and Nenos Shilimon.
Rana Ghamraoui was the wife, now ex-wife, of the offender.
Offence 1 – Form 1
On 27th of October 2003 the offender completed a loan application form in the name of Mr Peter Gantos in the amount of $472,500. This loan application was submittted to Vision Lending and related to the alleged purchase by Gantos of the property located at 44 Hamel Road, Mount Pritchard.
The purported applicant, Peter Gantos, does not exist. “Peter Gantos” is not known to the ATO. The offender admitted in his evidence that he was a fictitious person.
This is so despite the fact that several people involved in the conveyance claim to have dealt with a man they assumed to be Mr Gantos: Mr El Masri (solicitor), Mr El Masri’s secretary Rikik, the wife of the offender and the other vendor of the property, Mr Jaja, the settlement clerk acting for “Gantos”, and the offender.
The submitted loan application included representions that Gantos:
1. resided at 44 Hamel Road, Mount Pritchard and had done so for a period of two years and six months,
2. had assets of $360,000,
3. then earned $109,000 gross per annum; and
4. intended to purchase the property for the sum of $600,000.
The house (owned by the wife of the offender) was vacant for the 7 months she held an interest in it.
The offender arranged with an accountant to prepare income tax return’s for the tax years ending 2002 and 2003 for the purported purchaser.
The offender submitted the false application via facsimile number (02) 9791 6233, a facsimile number connected with his then residential address 25 Jarrah Ave, Casula.
Count 1 (indictment)
On 28 October 2003 the offender forwarded via facsimile number (02) 9791 6233 to Vision Lending a copy of a false:
1. passport, number L9225042, in the name of Gantos; and
2. birth certificate, number 31995/1978N, in the name of Gantos.
Count 2 (Indictment)
On 8 October 2003 the offender forwarded a copy of a false Westpac Classic Account summary document, in the name of Mr Peter Gantos, account number 732-076 42-2079, via facsimile number (02) 96025988 to Vision Lending.
This false Westpac Classic Account summary document falsely represented that Mr Peter Gantos had cash savings in the sum of $162,281.75.
Offence 2 (Form 1)
On 9 December 2003 Vision Lending requested further information from the offender including a 100 point ID check, a copy of the driver’s licence of Peter Gantos and a copy of the contract of sale signed by the vendors.
On the 16 December 2003 the offender forwarded a 100 point identification document in the name of Peter Gantos. Within this document the offender, as the authorised checking officer, represented that Peter Gantos had satisfactorily identified himself by the use of a false (unsigned) drivers licence. The offender faxed a copy of a false NSW driver’s license in the name of Peter Gantos to Vision Lending.
Offence 3 (Form 1)
On the 16 December the offender forwarded to Vision Lending, via facsimile (02) 96025988, a contract for the sale of land in respect of 44 Hamel Road, Mount Pritchard. The contract was false and misleading in that it represented:
1. Peter Gantos as the intended purchaser of the above property for the sum of $600,000;
2. the contract stated that a deposit in the sum of $60,000 had or was to be paid in relation to the sale. No deposit was ever paid on the “contract”; and
3. whilst purportedly under the hand of Peter Gantos, the contract appears to have been signed by the offender.
Count 3 (Indictment)
On 3 November 2003 a Valuer known to the offender attended 44 Hamel Road, Mount Pritchard for the purposes of conducting a formal valuation of the subject property. The valuer met the offender at the proposed security premises.
The property had been purchased by the vendors seven months previously for the sum of $210,000.
The valuer formally valued the property at $525,000.
A retrospective valuation of the property was subsequently obtained by the mortgagee, valuing the property at $340,000. The valuation of $525,000 arranged by the offender was significantly above the true market value.
About the 13 January 2004 the offender went to the home of his sister, who was at the time employed by Arab Bank Australia Limited as a customer service representative.
The offender informed his sister that he had a client who wished to open a saving account, that the client was too busy to attend the branch, that he required account opening forms and that he would have the client sign the forms. The offender’s sister agreed to obtain the relevant account opening documents for the offender. The name of the client was Peter Gantos.
A few days later the offender’s sister provided account opening documents to the offender. He informed his sister that he would return the forms when Mr Gantos had completed and signed the forms.
A few days later the offender handed the account opening documents to his sister. His sister observed that all details had not been completed and that a photograph on a drivers licence, in the name of Peter Gantos, was unable to be identified. The offender told his sister that he and the client had forgotten to complete the application and that the copy of the drivers licence was not clear due to a photocopier problem.
The offender’s sister completed a number of details on the account opening forms. The offender then provided his sister with $50 to open the account.
The offender’s sister subsequently opened the account in the name of Gantos and provided the offender with a new account, number 483842.
In January 2004 the offender made telephone contact with the solicitor (Milgate) who was acting for the vendors Nenos Shilimon and Rana Ghamraoui (the wife of the offender) in respect of the purported purchase by Gantos of 44 Hamel Road, Mount Pritchard. During the conversation the offender said, “My wife Rana and Nenos Shilimon are selling the property at 44 Hamel Road, Mount Pritchard to a Peter Gantos for $260,000. The purchaser’s solicitor is Mohammed Masri.”
About this time a person purporting to be Peter Gantos, in possession of a contract indicating a sale price of $260,000, attended the office of the “purchaser’s” solicitor, Mohammed Masri.
Masri witnessed the signature of the male purporting to be Gantos on the contract of sale for the sale price of $260,000.
On the 29th of January 2004 Mr. Milgate, the vendor’s solicitor, observed the signed and witnessed contract for the property bearing an amended price of $520,000.
On the 4th of February 2004 Mr Masri (the “purchaser’s solicitor) received a phone call from the offender.
During the conversation the offender informed Mr Masri that Peter Gantos was with him. It is alleged that a person purporting to be Peter Gantos informed Masri that the purchase price had increased from $260.000 to $525,000.
Mr Masri then ceased to act for the purchaser – who was known to him as Gantos.
Later that afternoon the offender contacted Mr. Milgate, the vendor’s solicitor, after solicitor Masri had informed ‘Gantos’ that he would no longer act for him. The offender enquired of Milgate what he proposed to do in relation to settlement of the purchase by ‘Gantos’ of the subject property.
Mr. Milgate told the offender that he would have to speak directly with ‘Gantos’ to enable the matter to progress. The offender did not provide any contact details for the purported ‘Gantos’.
Milgate later ceased to act for the vendors.
The offender, purporting to be Peter Gantos, later retained the services of a settlement agent, Michael Jaja. Upon being retained Jaja was provided with a mobile telephone contact number for ‘Gantos’ being 0410462532. This mobile phone number was used and controlled by the offender at all relevant times.
A Transfer of Property was completed and witnessed by a ‘Helal Gama’ of 25 Bluegum Ave, Casula. The address of the offender, between the 22/1/2003 and the 15/07/2004 was 25 Bluegum Ave, Prestons (the same address). According to the wife of the offender (and one of the vendors), ‘Helal Gama’ is a name used by the offender.
On 11 February 2004 Interstar Securities Ltd instructed Perpetual Trustees Victoria Ltd to pay the purported ‘Peter Gantos’ the sum of $472, 500. The settlement of this matter took place within the premises of the Law Society of New South Wales, Phillip Street, Sydney.
Nenos Shilimon and Rana Ghamraoui (the vendors), met with settlement agent Jaja at the Law Society and effected settlement of the sale with Debra Hawkins, a representative of the incoming mortgagee.
Mobile telephone phone records indicate that the offender was in the vicinity of this location at the relevant time.
On settlement of the sale the sum of:
1. $200,000 was paid to Nenos Shilimon;
2. $200,000 was paid to Rana Ghamraoui; and
3. $62,044.92 was transferred to a bank account held at the Arab Bank in the name of ‘Peter Gantos’.
On the 18th of February 2004 a signed authorisation in the name of ‘Peter Gantos’ was forwarded to the Arab Bank via facsimile number (02) 9602 5988, requesting the sum of $62,000 be transferred from Arab Bank account number 483842 to Commonwealth Bank account number 10104529 in the name of the offender’s wife, Rana Ghamraoui (one of the vendors).
The funds were later withdrawn from Rana Ghamraoui’s account by her in cash.
No repayments were ever made in relation to the loan to the purported ‘Gantos’. As a result of this default mortgage insurers, Gemico, suffered a net loss of $199, 326.05 following the sale of the subject property for the amount of $323,000.
The fingerprints of the offender were recovered from the relevant documents including documents prepared by 1st title for Perpetual Trustees.
On 25 June 2004 the offender was spoken to by NSW Crime Commission Investigators in relation to this matter. This uncautioned interview was electronically recorded during the conduct of a search warrant conducted by the commission.
The offender stated that:
(a) ‘Gantos’ lived for a period of six to eight weeks at 44 Hamel Road, Mount Pritchard prior to settlement of the matter.
(b) ‘Gantos’, during their first meeting outside of 44 Hamel Road, Mount Pritchard, agreed to buy the house and agreed to have the offender provide and arrange ‘Gantos’ ’ finance in respect of purchase.
(c) ‘Gantos’ did not provide him with any contact details such as telephone numbers or address details during any of their meetings.
(d) he did not attend the settlement of the matter on 11 February 2004. (This is in accordance with the recollection of the settlement clerk attending on behalf of the incoming mortgagee.)
Granville property
Count 4 (Indictment)
A loan application was made to ‘Vision Lending’ in the name of a purported applicant Redywan Gamrouy for an amount of $486,000.00.and related to the alleged purchase by Redywan Gamrouy of the property located at 19 Stafford Street, Granville. On the 27th of October 2003 the offender faxed the loan application form to ‘Vision Lending’.
Within the loan application submitted by the offender it was represented that Gamrouy:
1. resided at 25 Bluegum Ave, Prestons and had done so for a period of two years;
2. had assets of $556,000.00;
3. (then) currently earned $110,000.00 gross per annum; and
4. intended to purchase the property for the sum of $540,000.00.
The person who represented himself to the tenants (who by hearsay had known him as Redwan Ghamraoui ) as being the “new” owner was the brother of the offender, a man known at the time of this transaction as Raymond Mourad (by registration of a change of name), previously known as Redwan Ghamraoui, and later by the name (by registration of a change of name) as Raymond Deanna Gama.
The offender and his then wife lived at 25 Bluegum Ave, Prestons.
The offender dealt with an accountant re the preparation of ITR’s for the years ending 2002 and 2003 in the name of Redwan Ghamraoui.
Offence 4 (Form 1)
On the 16th of December 2003 the offender forwarded a 100 point identification document in the name of Redywan Gamrouy. Within this document the offender, as the authorised checking officer, represented that Redywan Gamrouy had satisfactorily identified himself via the use of a false birth certificate and a false unsigned drivers licence.
Offence 5 (Form 1)
On the 28th of October 2003 the offender also forwarded to Vision Lending a contract for the sale of land in respect to 19 Stafford Street, Granville.
The contract was false and misleading in that it represented Redyman Gamrouy as the intended purchaser of the property for the sum of $540,000.00. The solicitor noted on the contract and acting for the vendor did not in fact draft the contract or act on the conveyance.
The contract included a provision that a deposit of $54,000.00 had or was to paid in relation to the sale. The contract was purportedly signed by Redywan Gamrouy.
Count 5 (Indictment)
On the 28th of October 2003 the offender forwarded a copy of a false birth certificate in the name of Gamrouy, to ‘Vision Lending’.
Offence 6 (Form 1)
On 16 of December 2003 the offender also forwarded to ‘Vision Lending’ another copy of a contract for the sale of land in respect of 19 Stafford Street, Granville. The contract forwarded to ‘Vision Lending’ was also signed by the vendor, Fatma Mourad.
The contract was false and misleading in that it represented Redywan Gamrouy as the intended purchaser of the above property for the $540,000.00. The contract is purportedly signed by the “purchaser”, Redywan Gamrouy.
The solicitor noted on the contract and acting for the vendor did not in fact draft the contract or act on the conveyance.
Count 6 (Indictment)
Also on the 16 of December 2003 the offender forwarded a copy of the false unsigned NSW drivers licence number 13349885 in the name of Redywan Gamrouy.
The photograph depicted within the forwarded copy drivers licence was unable to be identified. This drivers licence was forwarded to ‘Vision Lending’ as part of the identification of the applicant procedure.
Count 7 (Indictment)
On 29 December 2003 the lender ‘Perpetual Trustees Victoria Ltd’ loaned $468,000.00 to a person purported to be Redywan Gamrouy.
As a result of this matter settling the sum of $384,428.00 was paid to the vendor’s (Fatma Mourad) account, National Australia Bank.
A cheque in the amount of $28,766.79 was given to Fatma Mourad.
On settlement another cheque was in the amount of $26.474.73 was given to a person purported to be the offender brother, Raymond Deanna Gama (change of name registered November 2004), formerly known as Redwan Ghamraoui.
The balance of the funds were dispersed amongst the solicitors, council and the Office of State Revenue.
The loan repayments were to be debited from account number 703311 in the name of Raymond Deanna Gama held with Westpac Bank. Three payments of $3,170.35 and one payment of $3,057.27 were made by direct deposit from the above account. No other payments were made on the mortgage after April 2004.
As a result of this default, mortgage insurers “Gemico Australia’ suffered a net loss in the sum of $164,640.57 following the sale of the subject property by ‘Perpetual Trustees Victoria Ltd’ for the amount of $350,000.00.
Robbery
The agreed facts in relation to the robbery offence are as follows:
At about 9.35pm on Thursday 27 July 2006 the victim, Stephen Camilleri was driving on Heathcote Road, Moorebank with his seven year old son, Adam, in the back seat of the car.
He observed a black BMW driving behind him for about 8 kilometres between Voyager Point and Sandy Point driven by the offender. The offender began to flash his headlights and had his left hand indicator on. The victim kept driving and the offender began to speed up and was driving his car just inches behind the victim’s car.
The offender’s car drove into the overtaking lane and, while driving alongside the victim swerved his car towards him a number of times. Each time he swerved, the victim slowed his car. Whilst the victim was driving at about 40kmh the offender forced him into the breakdown lane and then on the dirt on the side of the road. The offender swerved his vehicle across the front of the victim’s car to force him to stop the car.
The victim locked all the doors and windows. The offender got out of his car, tapped the driver’s side window with his right hand and yelled “I want your wallet”. He slid his right hand into his jacket and left it there. The victim wound down the window and they had the following conversation:
Victim: What do you want?
Offender: I want your money
Victim I’ve got my young son
Offender: I want your money
The victim reached for his wallet which was in the centre console. He turned off the headlights of his car and noticed the following registration “JPB10?” with black and white number plates. The offender attempted to take the keys out of the ignition but the victim pushed his hand away. The victim said to him “I don’t have much money”, the offender said “give me the wallet”.
The victim opened the wallet and while he held onto it, the offender reached in and removed 1x$10 note and 1x$20 note. The offender ran back to his car and drove away.
The victim immediately drove to Engadine police station and reported the incident at about 10pm. He told police that he handed over the money because he felt threatened.
The victim’s car and wallet were examined for fingerprints. On 19 October 2006 a print located on the exterior surface of the front offside window was matched to the offender.
On 10 November 2006 the victim attended Sutherland police station and took part in an identification procedure. He selected 2 photographs, remarking “the more I looked at it I leaned to number 8 but both look the same, without the stubble I would say it was him”. The offender was photograph 8.
On 5 May 2006 the offender purchased a black BMW with black and white numberplates with numberplates “AJP72M”.
On 10 November the offender was arrested and interviewed. No admissions were made.
Evidence
Evidence was called at the sentencing proceedings from:
Mr Tim Watson-Munro a psychologist; and
the offender.
A reference from the offender’s ex-wife was also tendered together with a letter from the Bridge Salvation Army organisation.
Mr Tim Watson-Munroe
Mr Watson-Munroe is a psychologist. His report was marked exhibit S19. He has had extensive experience in work related to offenders in a custodial setting both in New South Wales and elsewhere in Australia.
He had seen the offender on two occasions in December 2007 and on 8 February 2008. He was of the view that the offender is an intelligent young man of superior intellect with extensive conceptual abilities. He referred to the fact that the offender had been able to establish and operate his own financial management business was someone of considerable potential who now understood the gravity of his offences.
He referred to the offender’s addiction to crystal methylamphetamine (“Ice”) and, in particular, the impact of that drug on his judgments and impulse control. He also thought that the offender had developed some insight and, associated with that, some feelings of remorse which Mr Watson-Munroe thought were genuine - although noting that those feelings did not “come immediately”.
Mr Watson-Munroe was guardedly optimistic in his assessment of the offender’s ability to remain drug-free on his release from gaol, given that he had now detoxified and has insight into what had occurred to him and why, and further, the impact on him and those close to him.
Future treatment
Mr Watson-Munroe thought that the offender needed one-to-one treatment, in particular, in relation to developing strategies to cope with his lack of control over his impulses and to extricate himself from difficult situations and associations.
Offender
The offender gave evidence in chief on 8 February 2008 which was to the effect that he was very remorseful for what had occurred. He also stressed the importance of his relationship with his son and the impact on him of his imprisonment thus far.
The offender was cross-examined on 15 February, 2008 when he gave evidence to the effect that he didn’t know when he decided that he was going to rob his victim, nor did he have any clear recollection of the events of that day. However, he accepted the agreed statement of facts.
He also said that he did not commit the fraud offences to support his drug habit. He was taking about ½ to 1 gram of ice per day from about 2003/4. Some of that substance was given to him, other amounts he purchased for about $200 per gram in 2003 and $400 per gram in 2006. It was clearly an expensive habit.
His work environment was such that he was at that time negotiating and effecting about $1 million of mortgages per month. He estimated that he lost about $1.5 million over a three year period.
He agreed that the loss to the bank was of the order of $200,000 arising from the Gantos group of offences and $164,000 arising from the Redwan Ghamroui group of offences, a total of $364,000. He received a commission of about $6200 of which about 25% was paid to others.
No restitution, or attempt at restitution, has been made nor is there any likelihood of restitution.
Pre-sentence report
A pre-sentence reported dated 6 December 2007 written by Greta McDonald of the Silverwater Probation and Parole Service was tendered by the Crown (exhibit S6).
That report indicates the following:
The offender has been known to the Service since 1994 when he was convicted for stealing from the person. He was then given a Community Service Order of 300 hours, which he breached. He was later sentenced to three months imprisonment on the breach.
In 1997 the offender was sentenced to a three year sentence with a non-parole period of 18 months for Armed Robbery in Company.
He was sentenced to two section 9 bonds for driving whilst cancelled in 2005. His response to supervision was deemed as poor, due to failing to report as directed. The current matters appear to constitute a breach of these orders.
Relevant family/social factors
The offender is a 31 year old man with one dependent. He grew up in Auburn in western Sydney and has described a happy childhood and a close family of Lebanese descent. His parents arrived in Australia with four children. Mr Ghamraoui was the first child born in Australia and another four followed.
Whilst overseas for short period in 1992, Mr Ghamraoui’s father died suddenly which devastated the family. The offender expressed a sense of loss and a feeling that with his father gone he had no one for whom to succeed. Previously he had wanted to do well at school for his father, but now felt that there was no point in trying. His uncle took on a more active role in the family after his father’s death. Mr Ghamraoui attributes the death of his father to him falling in with some negative influences during his teenage years and getting into trouble.
The offender was married for 6 years and is now divorced. There is a five year old child from the marriage who is currently in the care of the child’s mother, who has since re-married. The ex-wife provided a written reference referring to the offender’s conduct and character and, in particular, his risk taking behaviour. The reference contained material which was somewhat at odds with the evidence in the pre-sentence report.
The offender has not seen his son for a year, and he states that there is animosity between himself and his ex-wife, who makes it difficult for him to see his son. He doesn’t want his son, mother, or siblings to visit him in gaol, although he keeps in regular contact with them.
Upon his release from prison he intends on living with his mother and some of his siblings in Guildford.
Education/Employment
Mr Ghamraoui completed his HSC at Granville Boys High at the age of 17. Since leaving school he has generally been employed although this has been interrupted due to periods of imprisonment. He undertook a Diploma in Financial Planning through Deakin University by correspondence in 1998. He worked as a financial consultant for a number of companies, and then established his own company as a mortgage broker/manager in around 2000, which ultimately led to the current offences. He has stated that he would like to return to work in the financial industry.
At the time of the fraud offences he was a licensed mortgage broker.
Gambling
Mr Ghamraoui reported having problematic gambling issues and has gambled on a weekly basis since 2005. He has since addressed his problems and feels confident he will not succumb to the addiction again.
Attitude to the offences
At interview the offender said that even though he pleaded guilty to the offences he still denies knowledge of the offences. He says he pleaded guilty as he and his family were put under surveillance over the previous year and a half and he wanted it to end. He attributes the breakdown of his marriage to the pressure he was put under by authorities during the investigation. As he denies any wrongdoing he did not express any remorse for his actions.
That is at variance with the remorse expressed to me in his oral evidence in the course of the sentencing proceedings.
Prison performance
Since being on remand for these offences Mr Ghamraoui has not incurred any internal misconduct charges. He has accessed AOD Services, completing the “SMART Recovery Training” program in addition to having a number of one on one sessions with an AOD worker. He has also secured employment as a sweeper (a position of trust) and he has been the Lebanese Delegate within the Parramatta Correctional Centre for a few months.
All these actions have been taken within the custodial setting and in the context of the upcoming sentencing proceedings.
Drug and alcohol report
A Drug and Alcohol report was prepared by Heather van Bruinessen (Drug and Alcohol counsellor) dated 3 December 2007 (exhibit S8).
This report refers to the offender’s drug history. Mr Ghamraoui states that he was first introduced to alcohol and illegal drugs at the age of 27. That coincided with the period when his financial planning company was being investigated by the Crime Commission. He said that, until the investigation into his company began, he had never experimented with drugs and had never even smoked a cigarette.
Mr Ghamraoui has had a substantial drug problem with daily use of “Ice” (crystal methamphetamine) since about that time. The offender stated that initially his use of ice was restricted to weekends, however, over time, this escalated to daily use over a three day period. At the time of the offence he was using approximately 1 gram per day at a cost of around $300. Once he started experimenting with smoking ‘ice’ his use escalated at a rapid rate.
He said that he used it to escape from his problems as he was unsure of his future and the outcome of the court matters. He denies ever having a problem with alcohol.
The report states that Mr Ghamraoui has made genuine attempts to address his drug problem whilst in custody. He stated that, in hindsight, he realises that his drug use exacerbated his situation. However, at the time it appeared to relieve the situation by allowing him to escape the reality of his circumstances. He said that, at the time of the robbery, he was under the influence of ‘ice’, but that the crime was not committed to support his drug use.
The offender comprehends the risks and triggers that he faces in regards to his drug use on his release; however, he understands that his using drugs will only detract him from achieving his goal to reinstate his financial company.
The Drug and Alcohol counsellor believes that the offender will benefit from participating in the Bridge Program, where he could continue and reinforce the process of change which he has commenced whilst being in custody.
Treatment in the community
The offender states that the only intervention he has received in the community has been under the direction of the Parole Board in 1998 when he completed a 12 week Anger Management Program. It does not seem that he has applied for any other courses other than the Bridge programme.
Treatment in custody
Mr Ghamraoui has completed a 12 session behavioural therapy program (SMART – Self Management and Recovery Training).
He attended six one on one counselling sessions with the Drug and Alcohol Counsellor, who said that he displayed honesty when addressing personal issues. He appeared to take responsibility for his own behaviour, furthermore, he is able to self-reflect and identify distorted cognitions leading to his behaviour.
He is currently participating in an IT course with the Education Department within the Centre.
Release plans
The offender wishes to be given the opportunity to attend the William Booth Bridge Program, which is a ten month residential rehabilitation program to continue with counseling to address personal issues including grief.
He stated that his long term goal is to go back into his property investment business. His business is non-operational at this current time, however, it is still a registered company. In the interim, however, a family member has offered to have him work in his concreting business.
Conduct in custody
Since entering custody in June 2006 there have been no drug and alcohol charges recorded against Mr Ghamraoui. He is currently employed at the centre as a sweeper.
His supervisor indicates that he has good work ethics, is trustworthy, hardworking and enthusiastic. The officer of the wing states that the offender creates no problems in the wing and obeys all directions.
Remorse/contrition
The offender pleaded guilty to all these offences, albeit on the first day of trial. The utilitarian value of his plea and the minimisation of the demand on the resources of the criminal justice system must also be considered in the light of the fact that the offender failed to appear when the trial was first listed on 18 June, 2007.
The offender expressed extreme remorse for his actions when he gave evidence before the Court on 8 February 2008. However, I note that he denied knowledge of the offences to the Probation and Parole Service when being interviewed by that Service.
The Crown submits that the principles referred to in Thomas [2007] NSW CCA at [19] are applicable in assessing the genuineness of remorse. A finding of genuine remorse should not be made lightly, especially in circumstances where there are contra-indications. Here in my view the expressions of regret have been triggered by the offender’s experience in prison and the dawning realisation of the extent of the combination of the charges he is confronting.
Section 21A factors
Aggravating factors
Planning and premeditation
It seems to me that the fraud offences required considerable planning and a degree of sophistication.
Conditional liberty and bonds
The offender was on bail in relation to the fraud matters as well as on two bonds when he committed the robbery and related driving matters. One of those bonds was in relation to a reckless/furious driving matter.
Position of trust
The offender was in a position of trust in relation to the fraud matters given his position as a licensed mortgage broker. That is also of particular relevance in relation to some of the matters on the Form 1.
Mitigating factors
Remorse
The evidence regarding remorse is conflicting. In the pre-sentence report, the offender denies involvement in the fraud offences. However, when giving evidence in court during sentencing proceedings he indicated that he was sorry for what he had done.
Victims
After the commencement of the remarks on sentence and in the intervening period, the Crown obtained a victim impact statement which was admitted by consent becoming exhibit s 23. That brief statement referred to the fact that the victim’s young child who was in the rear of the car had had continuing nightmares after the incident. On the basis of the brief statement and evidence, I do not think that the position is such that the principles established in the decision of R v Youkhana [2004] NSWCCA 412 are applicable warranting a finding that the injuries suffered were beyond that normally experienced by a person the subject of such an offence.
Prior convictions
The offender has a long history of prior offences dating back to 1994. He has served a period of imprisonment for robbery in 1997 and has had a series of non-custodial sentencing options extended to him. I also note that he has an offence in May, 2005 for driving in a reckless/furious/dangerous manner which was followed in August, 2005 with a conviction for driving while licence cancelled.
Not only is there nothing in his record which entitles him to any leniency but in terms of the robbery and associated driving matters, he was driving at a time when he was disqualified and was on a section 9 bond.
Plea of guilty
The pleas of guilty were not made at the earliest opportunity as they were entered at the first day of trial. There was some utilitarian value in that plea in terms of its consequential saving of the resources of the justice and law enforcement systems.
However, I do not see the plea as indicative of a significant degree of contrition. It was clearly entered in the light of strong Crown cases on both the fraud and robbery matters. I thought that some aspects of his expressions of remorse were contrived. Further, there is nothing in his record which would indicate to me that such expressions of remorse would form the foundation of any real basis for rehabilitation.
With a person of his intelligence, education and background, rehabilitation may only come if he accepts that all aspects of his life and aspirations are to change and that there is some role model who he accepts and respects. I don’t see that on the evidence before me. The offender’s demeanour while he was giving his evidence was one of someone who was used to being in control of his situation and able to manipulate his presentation for his own purposes.
Categorisation of the offences
Fraud
In my view the criminality involved in the fraud matters was at least of mid-range given the degree of planning and sophistication involved, the period over which the crimes were committed, the other people and institutions involved, the amount involved and the offender’s position in the financial industry.
The profit received by the offender was :
$6,200
$62,000
$200,000 paid to his wife who was then living with him.
There has been no restitution of the considerable amount involved, nor is there likely to be any such restitution.
Robbery
The criminality involved in the robbery was at least of mid range involving as it did an innocent victim and his young child neither of whom were known to the offender, an act of driving on a public road with the likelihood of the victim swerving to avoid the offender. Clearly the offender was substantially affected by the drugs he had been consuming.
However, his conduct would have been terrifying. It went on for a period of time and over some distance with the possibility of real danger to the public. Those matters which are inherent in the section 166 matters and which therefore cannot be taken into account as aggravating factors but which must be reflected in the penalty imposed.
Guideline decisions
Robbery
The guideline judgment of R v Henry and Ors [1999] NSWCCA 111 established a sentencing range of a head sentence of four to five years imprisonment for robbery offences under section 97 of the Crimes Act while relevant for other robbery offences – see R v Murchie (1999) 108 A Crim R 482; R v Stanley [2003] NSWCCA 233; R v Lesi [2005] NSWCCA 63- compared to that to which this offender has pleaded guilty.
The common features which commonly are relevant in sentencing of robbery matters include:
(i) Young offender with no or little criminal history
(ii) Weapon like a knife, capable of killing or inflicting serious injury
(iii) Limited degree of planning
(iv) Limited, if any, actual violence but a real threat thereof
(v) Victim in a vulnerable position such as a shopkeeper or taxi driver
(vi) Small amount taken
(vii) Plea of guilty, the significance of which is limited by a strong Crown case.
Here in my view the circumstances of this robbery offence are, if anything, more serious than the general categories referred to in Henry bearing in mind the different elements of the section 97 offences compared to a charge brought under section 94 and the difference in the maximum penalties – twenty years compared to fourteen years imprisonment.
Here there has been a plea of guilty and a small amount taken. In my view there was limited planning in relation to the actual robbery, the offender’s behaviour being more in the nature of a ‘brain snap’ where he was out of control arising from the consequences of his addiction.
The offender is not a young offender and he has a record including offences of robbery in company in 1997. There was a real threat of violence in the behaviour at the time of the robbery. The driving conduct which preceded the actual robbery was also potentially dangerous – although that is not the subject of a separate driving charge and I do not take it into account as an aggravating factor on the robbery count. Nevertheless it is a surrounding circumstance of the offence which is relevant.
Authorities
Fraud
The authorities have made it clear that crimes of this nature should be subject to condign penalties which send a clear message to the public and particularly to those involved in the finance industry.
The factors which are of relevance include:
The amount of money taken
The level of sophistication and/or planning involved;
The position of the person;
Any breach of trust
The multiplicity of offences
The period of time against which all the matters took place.
R v Corbett (1991) 52 A Crim R 112; R v Pont (2000) 121 A Crim R 302.
Consideration
I have taken into account the facts as outlined above and all the other evidence including that of the offender and Mr Watson-Munro and my findings as to the criminality involved.
The offender has had a family and educational background which has afforded him many more opportunities than many of those who appear in this court. Having observed him giving his evidence, he is clearly an intelligent and quick-thinking individual who became involved in the high adrenaline, demanding life of high finance with his resort being to a damaging drug habit which became bigger than his capacity to control it.
He used his education and the knowledge he had obtained while in the financial services industry to put in place a relatively sophisticated system of fraudulent and deceptive conduct. That involved others who were entitled to rely on his honesty and integrity.
The offender’s fraudulent behaviour extended over a significant period of time. It was not a one-off act. What was involved in relation to each of the fraud matters was a relatively sophisticated system of creating and using a number of false documents. There were a multitude of acts. Those involved the offender’s sister, the use of his brother’s name and other false names, as well as documents purporting to emanate from banks, the ATO, the RTA, the Registry of Births, Deaths and Marriages which were designed to mislead and defraud a number of governmental and financial agencies.
The reality is that those agencies need to establish systems and procedures to avoid fraud. When those are breached, further systems and resources need to be allocated to minimise the impact of frauds such as this. The offender’s actions also involved significant losses of the order of $364,000 to the default mortgage insurers, Gemico Australia, in addition to the commission he had the audacity to charge on the overall transaction. As has often been stated, such losses are ultimately borne by the community. There has not been any restitution - nor is there likely to be any.
The requirements of personal deterrence are of considerable importance in this case given the offender’s expressed intention of returning to the financial services industry - although there was some departure from that in the submissions ultimately made on his behalf in the sentencing proceedings - and the level of knowledge and skill he has acquired which he has clearly put to fraudulent use.
Against that background of his intelligence, he has come late to the realisation of his drug addiction let alone taking any steps to deal with it. Urged on me by his counsel is that his remorse both expressed and inherent in his plea, is genuine. If that is the case – and I have some reservations about that - it has only come into existence very late in the proceedings and in the face of the imminent sentencing proceedings. I think that expression of remorse is of very limited assistance to the offender.
On the basis of my observation of him and the present evidence I do not see any material which would warrant any confidence or optimism that he has the personal resources to restructure his life nor any strong prospects of rehabilitation on his release from prison. The offender has clearly had a drug problem for some time. I see little evidence other than in his application to be on the Bridge programme, that there has been any practical action taken to deal with these problems other than in the context of the sentencing proceedings.
If he returns to the world of finance with its associated demands and pressures - and that is the area in which he has had his training and experience - he will need considerable assistance to deal with his addiction and addictive lifestyle. Even if there are such measures, they will only be effective if he is prepared to pursue those and, with humility, accept the guidance of others. I did not see that in his presentation while he gave his evidence.
The offender was at the time of the fraud matters, a licensed mortgage broker. As he admitted in his evidence, the community relies on such persons to carry out honestly the elaborate system of 100 point checks which has been established to counter-act precisely the sort of offences the subject of this indictment.
He was clearly in a position of trust – both to the financial regulators and to the community – which he has breached. Those matters must be reflected in the sentence imposed. Considered against the factors outlined earlier, and my findings as to the range of criminality involved, these offences seem to me to clearly call for a substantial penalty.
Form 1 matters
The matters set out in the Form 1 - which the offender has asked me to take into account in fixing the penalty on count 1 - involve six matters on the dates of 16 December, 2003 and 28 October, 2003, two of which involve the abuse of the ‘100 point check system’ and the publishing of loan applications with associated false representations.
They are clearly related to the overall criminality of the fraud matters. They warrant an additional emphasis in the sentence to be imposed on count 1, specifically because of the abuse of trust involved in a mortgage broker manipulating the system on which the financial services industry relies on the integrity and honesty of those involved.
Section 166 matters
I take into account in the sentence on the robbery count, the matters set out in the section 166 notice, namely, Driving with menaces, Negligent driving and Driving while disqualified.
The Crown submits that these matters should be the subject of discrete sentences. However, the offences all clearly relate to the course of driving which immediately preceded the robbery and involved the same victim.
Those penalties should be as follows:
o Driving with menaces fixed term of 12 months imprisonment with a period of disqualification of 5 years.
o Negligent driving fixed term of 6 months imprisonment
o Drive while disqualified fixed term of 12 months imprisonment. There should be a period of disqualification from driving of 3 years on this charge.
In my view, given the penalties which I intend to impose on the robbery charge, the sentences should be concurrent with that penalty.
Sentencing options
The offender has been assessed as unsuitable for a Community Service Order and ineligible for a Periodic Detention Order. In any event, for the reasons I have outlined above, none of these offences should be dealt with other than by a sentence of imprisonment.
The offender has been assessed as suitable for a medium to low level of intervention by the Probation and Parole Service. The individualised case plan proposed by the Service would include strategies to address the following areas of criminogenic need:
o Substance abuse issues;
o Gambling issues;
o Unresolved grief issues.
He has been afforded considerable opportunities in the past in terms of sentencing options and alternatives which do not seem to have been effective. Clearly he has not availed himself of the opportunities extended to him in the past. I see nothing other than expressions of remorse stated in the shadow of the sentencing proceedings which would warrant confidence in his capacity to avoid drugs nor indeed to take a great deal of notice of plans devised for him to wean himself off drugs and the lifestyle and expectations associated with it.
His pursuit of the Bridge programme or other like programme if it is available to him should take place at the conclusion of his sentence of imprisonment.
JIRS statistics
Fraud matters
s301(2) – 1 case (periodic detention)
s178BA – 63% prison: between 1 – 4 years imprisonment; between 6 months & 3 years NPP.
s178BB – 44% prison: between 6 months – 4 years imprisonment; between 1 – 3 years NPP.
Robbery
70% prison: between 1 – 6 years imprisonment; between 6months – 4 years NPP.
These statistics are of limited use other than establishing the broad parameters within which the sentencing discretion should be exercised.
Special circumstances
It was submitted on behalf of the offender that there should be a finding of special circumstances based on:
o the offender’s age
o the prospects of rehabilitation based on the family support available to him.
o the periods of accumulation of sentences.
In my view there are only limited circumstances which could be regarded as warranting an adjustment to the statutory ratio. That should be of the order of 66.66%.
Totality/Accumulation/Concurrence
Here there are two kinds of offences:
(i) those within the broader ‘fraud’ grouping of counts namely, those involving Mr Gantos and those involving the offender’s brother as well as the Form 1 matters; as well as
(ii) the robbery and the associated section 166 matters which involved a totally separate kind of criminality, a separate victim and which occurred at a different time.
Subject to issues of totality, I see no reason to warrant any degree of concurrence between the sentences imposed on the fraud matters and the robbery and driving matters. They are different crimes with different kinds of criminality. They occurred on different dates with different victims and different background circumstances. The personal circumstances of the offender were different at the different times of the offences.
The fraud matters involved essentially the same modus operandi and the same kinds of acts of criminality. However, the offences involved different individuals and were separated in time. There is also the need to impose a different penalty in relation to count 1 given the extent of the matters listed on the Form 1. The sentences imposed in relation to the separate fraud counts should be totally accumulated apart from a period of 3 months imprisonment
In relation to the fraud matters in my view there should be a total concurrence of the sentences imposed in relation to counts 1,2, 3 and as between the sentences imposed on counts 4,5,6 and 7.
The sentences imposed on the driving offences should be served concurrently with the sentence on the robbery.
Totality
Having regard to all the matters set out above and to the JIRS statistics and the authorities on the two different kinds of offences, I am satisfied that the sentences I am proposing are within the appropriate range of the exercise of my discretion.
The question then arises as to whether the sentences are appropriate from the point of view of the total effective sentence. In my view, having had the opportunity over the intervening period to reflect on the different kinds of criminality involved, the facts and the requirements of general and specific deterrence the penalty proposed is appropriate.
In terms of transparency of discounts, the sentences reflect a discount for the plea of 15% and a finding of special circumstances of 66 and 2/3 %
Commencement date
The offender has been in custody since 20 June 2007 solely referable to these offences. He was also in custody between 14 December, 2006 and 15 February, 2007 when he was granted Supreme Court bail. Taking into account those periods in custody – and although he was also remanded in relation to other matters at another time – I think that the commencement date for the relevant sentence should be 18 April, 2007. There is some relatively minor benefit to the offender in fixing this commencement date.
Sentence
Fraud matters
In relation to count 1, the offender is sentenced to a fixed term of imprisonment of 3 years and 6 months commencing on 18 April 2007 and expiring on 17 October 2010.
In relation to counts 2, 5 and 6 the offender is sentenced to a fixed term of 3 years imprisonment commencing 18 April 2007 and to expire on 17 April 2010, which is to be served concurrently with the sentence imposed in relation to count 1.
In relation to counts 3, 4 and 7, the offender is sentenced to a fixed term of imprisonment of 2 years commencing on 18 April 2007 and expiring on 17 April 2009.
In relation to the robbery count, the offender is sentenced to a term of imprisonment of 3 years 9 months commencing on 18 April 2010 and expiring on 17 January 2014 with a non-parole period of 2 and ½ years imprisonment commencing on 18 April 2010 and expiring on 17 October 2012.
On the charges on the section 166 certificate I impose the following sentences to be served concurrently with this sentence:
Driving with menaces fixed term of 12 months imprisonment commencing on 18 April 2010 and expiring on 17 April 2011 with a period of disqualification of 5 years commencing on 18 April, 2007;
Negligent driving – a period of disqualification from driving of 1 year commencing on 18 April, 2007;
Drive while disqualified fixed term of 12 months imprisonment commencing on 18 April 2010 and expiring on 17 April 2011 with a period of disqualification from driving of 2 years commencing on 18 April, 2007.
The total effect of the sentence is therefore that the offender will be sentenced to a total non-parole period of 5 years and six months imprisonment to commence 18 April 2007 and to expire on 17 October 2012, with a parole period of 1 year and 3 months to commence 18 October 2012 and to expire on 17 January 2014.
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LAST UPDATED:
22 July 2008
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