R v Mustapha

[2024] NSWDC 30

District Court

New South Wales

Medium Neutral Citation:	R v Mustapha [2024] NSWDC 30
Hearing dates:	5 June, 11 August and 3 November 2023 and 9 February 2024.
Decision date:	23 February 2024
Jurisdiction:	Criminal
Before:	Colefax SC DCJ
Decision:	Aggregate term of imprisonment for 3 years to be served by way of an Intensive Corrections Order - reparation order $193,459.09.
Catchwords:	CRIME - SENTENCE - obtain a financial advantage by deception - dealing with proceeds of crime - attempt to obtain a financial advantage by deception.
Legislation Cited:	Criminal Code (C'th): ss 134.2(1), 400.6(1), 11.1(1); Crimes (Sentencing Procedure) Act 1999 (NSW), s66.
Cases Cited:	Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3
Category:	Sentence
Parties:	Rex (Crown) Ismail Mustapha (Offender)
Representation:	Mr Ng (Crown Prosecutor - C'th) Mr Lloyd KC (Offender)
File Number(s):	2022/75879
Publication restriction:	Nil

Judgment

1. Ismail Mustapha, you appear for sentence in relation to three offences.

2. First, one offence of obtaining a financial advantage ($145,175.61) by deception. This offence took place between 30 January 2018 and 27 March 2018. This is sequence 1.

3. Sequence 1 involves a contravention of s134.2(1) of the Criminal Code (C’th). The maximum penalty for the offence is imprisonment for 10 years.

4. Secondly, one offence of dealing with the proceeds of crime worth $10,000.00 or more ($48,373.48). This offence took place between 6 February 2018 and 28 March 2018. This is sequence 41.

5. Sequence 41 involves a contravention of s400.6(1) of the Criminal Code (C’th). The maximum penalty for the offence is also imprisonment for 10 years.

6. Thirdly, one offence of attempting to obtain a financial advantage ($36,293.99) by deception. This offence took place between 4 April 2018 and 11 April 2018. This is sequence 8.

7. Sequence 8 involves a contravention of the combined operation of sections 11.1(1) and 134.2(1) of the Criminal Code (C’th). The maximum penalty for the offence is, again, imprisonment for 10 years.

8. The facts surrounding the three offences are contained in an agreed statement of facts and in the Crown’s amended submissions on sentence (and which are not disputed by you) and may be summarised as follows.

9. In the periods in which the three offences were committed, you were 20 years old. You were also a registered tax agent (and had been since July 2017).

10. In the period 30 January 2018 to 11 April 2018, you had fraudulent dealings with the Australian Taxation Office which resulted in you receiving $145,175.61 (sequence 1) and attempting to obtain a further $36,293.99 (sequence 8).

11. During this period, you lodged fraudulent income tax returns and amended income tax returns with the Australian Taxation Office, without authorisation, and on behalf of persons for whom you were not the authorised tax agent. Each lodgement or amendment was made with your business name and tax agent number. And, in the case of sequence 1, each income tax return resulted in a tax refund to the relevant taxpayer.

12. Further details of your offending are as follows. 

13. You were involved in the process of obtaining the personal details of many of the taxpayers used to perpetrate the fraud when they responded to a job advertisement placed by you on the internet. The advertisements were directed at migrants who were seeking employment. The advertisement requested interested applicants to send personal details – such as their passport details, tax file numbers, visa grant notices, entry dates into Australia, and a resume. A person known to you, but unknown to the prosecuting authorities or to the Court, then forwarded that information to you. On a small number of occasions, you sought additional personal details to those provided in response to the job advertisements.

14. You were the registered tax agent for five companies which purported to be the employer of each of the taxpayers used to perpetrate the fraud. You caused, or attempted to cause, the fraudulent taxation refunds to be paid into bank accounts which you controlled. Insofar as sequence 1 is concerned, 25 taxpayers were affected by your misconduct; insofar as sequence 8 is concerned, 6 taxpayers were so affected.

15. In addition to these 31 taxpayers, you also received $48,373.48 in respect of a further 9 taxpayers who provided personal details in response to the job advertisement I have already referred to. Refunds for those taxpayers were received by you into the bank accounts which you controlled. This conduct has been charged (and to which you have pleaded guilty) as a proceeds of crime offence as there is no direct evidence that the income tax returns involved with these 9 taxpayers were lodged without the taxpayers’ authority.

16. It is your conduct in relation to these further 9 taxpayers which is sequence 41.

17. I note that the amount of money the subject of sequence 41 does not overlap with the money the subject of sequence 1.

18. It is necessary for the Court to make an assessment of the objective seriousness of each of the offences for an offence of its kind. In this regard, the Court is to consider: the amount of money defrauded; the position held by an offender; the accompanying breach of trust; the degree of planning, pre-meditation and sophistication; whether there is a multiplicity of offences or dishonest acts; and the period of time over which the offences took place.

19. In my opinion, by having regard to the circumstances of each offence, sequence 1 is slightly below the mid-range; and sequences 8 and 41 are approximately equidistant between the middle and the bottom of the range.

20. Four of the victims of your offending provided the Court with Victim Impact Statements. Each of them has substantially emotionally suffered as the direct result of your criminal conduct.

21. Your activities came to the attention of the Australian Taxation Office which conducted audits in relation to you and began investigations in April 2018. There is no evidence that, at that time, you were aware of the investigations being conducted by the Australian Taxation Office.

22. However, you did become aware of those investigations on 4 July 2019 when search warrants were executed at the premises from which you conducted your business, as well as your residential premises and those of your parents.

23. Almost two years later, you were interviewed by the Australian Taxation Office on 10 June 2021.

24. Approximately 9 months later, on 18 March 2022, a Court Attendance Notice was issued, after which there were negotiations between you and the Australian Taxation Office concerning those proceedings. Ultimately, pleas of guilty were entered to a further amended Court Attendance Notice on 10 February 2023, following which you were committed for sentence to this Court.

25. You did not give sworn evidence in the sentence hearing. Your subjective circumstances were placed before the Court through the following documents:

1. a sentencing assessment report dated 17 May 2023;

2. an unsworn statement by you dated 8 May 2023 (tendered without objection by the Crown);

3. three character references; and

4. a bundle of academic and employment skills certificates.

26. In any sentence hearing, facts in aggravation need to be proved (by the Crown) beyond reasonable doubt; and facts in mitigation need to be proved (by the offender) on the balance of probabilities.

27. Applying those standards to the evidence before me, I am satisfied of the following further facts.

28. As I have already said, at the time of the offending, you were (only) 20 years old.

29. You had a limited and relatively minor criminal history. For many offences, such a history would entitle an offender to meaningful leniency as a first offender. For tax fraud offences, that consideration is of reduced significance – but it is still of some significance.

30. You appear to have had an unremarkable upbringing. There is nothing to suggest that you and your three siblings were brought up in anything but a loving and supportive environment. You have the support of a large extended family.

31. You have no physical or mental health issues.

32. Neither do you have any issues with illicit drugs or gambling.

33. You left school at the completion of Year 10, after which (until recently) you have worked in and around the accounting profession. In this regard, at around the time of your offending, you setup your own accounting firm. However, it was not until 8 December 2023 that your tax agent’s licence was withdrawn – and specifically because of the offending with which I am concerned today.

34. You now work as an unlicenced subcontractor to the person who acquired the tax agent’s business you had previously been operating.

35. You married in early 2019, and you and your wife have a daughter who was born in October 2020. Another child is expected to be born soon (in approximately 2 months time). You are the sole income earner for your immediate family. You also provide assistance to your parents – but your siblings are also available to provide such assistance as may be required.

36. You told the author of the sentencing assessment report that you were not “in dire financial need at the time” of your offending. You have also stated that you were not alone in this criminal enterprise; and that you did not keep the entirety of the $193,549.09 which was lost to the Commonwealth. But you have not provided any information as to how much of that amount was shared with your co-offender; nor what you did with such monies as you personally received. On the evidence before me, you were the principal offender in the offending conduct.

37. You have not given sworn evidence of your remorse; and I regard your second-hand expressions of remorse with some scepticism. This fact, together with the fact that you have made no reimbursement of any amount to the Commonwealth, means that I am not satisfied, on the balance of probabilities, of your genuine remorse – as opposed to being sorry for the position in which you find yourself.

38. Notwithstanding that I am not satisfied that you are genuinely remorseful for your offending, I note: you have committed no offences since April 2018 (i.e., almost 6 years); and you have matured and have responsibilities for a young family. These considerations, taken with the other subjective factors I have already referred to, mean that I am satisfied, on the balance of probabilities, that your prospects for rehabilitation are good – and, indeed, I accept the submission made on your behalf by Mr Lloyd KC that you are “…a long way down the path towards total rehabilitation”; and that the need for specific deterrence, as a sentencing consideration, is lessened.

39. I also agree with the author of the sentencing assessment report that you are a low risk of reoffending.

40. And the period of delay (during which you have substantially rehabilitated) does somewhat reduce the significance of general deterrence. But it does not substantially do so. It remains a prominent sentencing consideration because offences of this kind, which involve the abuse by a professional person in a process that is highly reliant on the integrity of that professional person, are difficult to detect; investigations are often expensive; and have seriousness implications for the whole community.

41. On your behalf, Mr Lloyd conceded that no sentence other than a term of imprisonment is appropriate for the offences. I accept, and independently agree, with that submission.

42. Insofar as the sentence is concerned, I intend to impose an aggregate sentence. It is, therefore, necessary for me to state the individual indicative sentences underpinning that ultimate aggregate sentence.

43. Insofar as each indicative sentence is concerned, you are entitled to a 25 per cent discount because of the early plea of guilty. Furthermore, because of your youth at the time of the offending (and even now), and as an act of deliberate leniency, there will be significant concurrency between the individual indicative sentences.

44. In relation to sequence 1, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 3 years. After the discount, the indicative sentence is imprisonment for 2 years 3 months.

45. In relation to sequence 41, except for the discount of 25 per cent, the indicative sentence would have been imprisonment for 2 years 6 months. After the discount, the indicative sentence is imprisonment for 1 year 10 months.

46. In relation to sequence 8, except for the discount of 25 per cent, the indicative sentence would have been imprisonment of 1 year 6 months. After the discount, the indicative sentence is imprisonment for 1 year 1 month.

47. Applying the significant concurrency to which I have just referred, and by having regard to totality, you are, therefore, sentenced to a term of imprisonment for 3 years.

48. The question which next arises is how should that aggregate term of imprisonment of 3 years be served? Should it be served in full-time custody, as contended by the Crown; or should it be served by means of an intensive correction order, as was submitted on your behalf by Mr Lloyd.

49. In considering whether or not that sentence should be served by means of an intensive correction order, careful regard must be had to the terms of s66 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The “paramount consideration” in deciding whether or not an intensive correction order should be made is “community safety” (cf 66(1)).

50. In considering “community safety”, the Court is required to undertake the evaluative exercise mandated by s66(2) – as well as the consideration mandated by s66(3).

51. In many cases, those exercises (especially that at s66(2)) will be more finely balanced than in the present case. In your case, Mr Mustapha, given your otherwise good background, your substantive rehabilitation to date, your low risk of reoffending, and the period of time which has elapsed since the relevant offending occurred, in my opinion, your risk of reoffending is more likely to be addressed (and continued) by you serving the sentence by means of such an intensive correction order. Serving the sentence by a term of full-time imprisonment in these circumstances is likely to do more harm than good to your (currently low) risk of reoffending (see generally Stanley v Director of Public Prosecutions (NSW) [2023] HCA 3). Community safety, therefore, will be more fully served by you serving your sentence by means of an intensive correction order.

52. I, therefore, order that the sentence of imprisonment of 3 years be served by means of such an order which commences today.

53. There are two standard and mandatory conditions to any and every intensive correction order. They are: first, that an offender must not commit any offence during the term of the order; and secondly, he must submit to supervision by a Community Corrections Officer.

54. In addition to those two mandatory conditions, there must be at least one additional condition, unless there are exceptional circumstances (which is not this case).

55. I impose the following additional condition, namely, you are to perform 500 hours community service.

56. Mr Mustapha, if you do not comply with the conditions of this order, sanctions may be imposed by the State Parole Authority. Those sanctions may include a formal warning; the imposition of more stringent conditions; or it may involve the revocation of this order. If the order is revoked, you may be required to spend some, or all, of the period of your sentence in full-time custody.

57. You are ordered to report to the Bankstown Community Corrections Office no later than 4:00pm on Monday, 26 February 2024.

58. You are now directed to the attend the Court Registry where a copy of this order will be further explained and given to you.

59. Finally, I make a reparation order in the amount of $193,549.09.

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Decision last updated: 23 February 2024