R v Omoregie

[2020] NSWDC 734

District Court

New South Wales

Medium Neutral Citation:

R v Omoregie [2020] NSWDC 734

Hearing dates:

17 September 2020

Date of orders:

9 October 2020

Decision date:

09 October 2020

Jurisdiction:

Criminal

Before:

Weber SC DCJ

Decision:

(1) The offender is convicted of the offences which bring him before the Court.

(2) The offender is sentenced to a term of imprisonment of 12 months with a non-parole period of seven months.

(3) The Court directs that such term of imprisonment shall commence on 3 September 2020 and that the non-parole period shall expire on 2 April 2021, with the balance to expire on 2 September 2021.

Catchwords:

CRIME – Money laundering – Dealing with the proceeds of crime being reckless as to whether the it is the proceeds of crime – email scam – where the offender accepted the electronic transfer of funds into his personal bank account and used the funds to purchase gold bars for a third party in exchange for payment

SENTENCING – Mental condition issue – where the offender has not established on balance that he had a mental condition which was apt to be brought to account in the sentencing task

SENTENCING – Objective seriousness – where the offences involved large sums of money – where the transfer to gold bullion was non-traceable – where the offences were not spur of the moment

SENTENCING – Aggravating factors – financial gain – offender was on conditional liberty at the time of offending

SENTENCING – Contrition and remorse – where the offender expressed insight into the consequences of his offending – early guilty plea – guarded about prospects of rehabilitation and risk of reoffending

SENTENCING – Appropriate sentence – Whether in this case youth is a mitigating factor or, when considered with his criminal antecedents, disentitles the offender to leniency – Where the offences were committed whilst the offender was on conditional liberty – the offender has learned nothing from previous offending and has not benefited from the leniency of previous non-custodial sentences

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases Cited:

Markarian v The Queen (2005) 228 CLR 357

Category:

Sentence

Parties:

Regina (Crown)
Robert Omoregie (Offender)

Representation:

Counsel:
Mr D Marr (Offender)

Solicitors:
Ms M Vassall (Solicitor Advocate - ODPP)

File Number(s):

2019/00277216

Publication restriction:

None

Judgment

1. The offender comes before the court having pleaded guilty to two counts of recklessly dealing with the proceeds of crime (sequences 9 and 10). These are offences pursuant to provisions of s 193B (3) of the Crimes Act 1900 (NSW). They carry a maximum penalty of ten years imprisonment. There is no standard non-parole period.

2. The offender has also asked that a further offence under the same provision be taken into account on a Form 1 (sequence 11).

AGREED FACTS

3. The matter proceeded by way of agreed facts, which can be summarised as follows.

4. Ms Monique Ellis, who I shall refer to as the victim, instructed her solicitor, Mr Michael Reece, to act for her in relation to the purchase of property at Kogarah. The victim at that time was residing in London. On the morning of 26 June 2019 the solicitor, Mr Reece, sent an email to the victim’s email address. This email outlined the funds that would be required by the victim to be provided to the vendor in order to secure the settlement of the property purchased. Mr Reece requested that the victim transfer $290,000 to his firm’s St George Bank Trust account. The details of that trust account were provided in the email.

5. By means which are not known, the email was somehow intercepted and the content of the email was altered. Crucially, the trust account details of Mr Reece’s firm were altered to be replaced with the details of a Commonwealth Bank account in the name of the offender. This altered email was then on sent to the victim, purportedly from Mr Reece. On 28 June 2019, $289,500 was received into the offender’s bank account from the victim, as requested in the falsified email.

6. The first count, sequence 9, concerns events that occurred on or about 1.30pm on 28 June 2019, that is to say, the same day upon which the sum was received into the offender’s account. The offender attended on ABC Bullion located in the Sydney CBD. He opened an account with ABC Bullion and in so doing produced a New South Wales heavy vehicle licence as identification, as well as providing his mobile phone number. The offender purchased a one-kilogram cast gold bar 999.9, the value of which being $65,082.10. The offender then attended on a Commonwealth Bank branch in the CBD where a transfer of moneys from his account to ABC were arranged. The offender then returned to ABC Bullion to pick up the gold. Following the money transfer, the offender indicated to ABC Bullion staff that he was purchasing the gold as an investment. The transaction was captured on CCTV footage.

7. The second count, sequence 10, concerns events which occurred at 2pm on 1 July 2019. The offender attended on ABC Bullion where he purchased 2 one-kilogram gold cast bars 999.9 to the value of $129,000.20. The offender paid for the gold using a CBA Debit Mastercard that was linked to his CBA account. This transaction too was captured on CCTV footage.

The Form 1 Offence

8. At about 3pm on 2 July 2019, the offender attended ABC Bullion where he purchased a one-kilogram gold cast bar 999.9 for the sum of $64,625.80. The offender paid for the gold using a CBA Debit Mastercard that was linked to his CBA account. This transaction was also captured on CCTV. This constitutes the Form 1 offence, which is attached to the sequence 10 offence.

BACKGROUND TO THE OFFENDING

9. The offender gave evidence at the sentencing hearing. He stated that shortly prior to the transfer of moneys to his account he was contacted by telephone by a person whom he knew from his native Nigeria. That person asked the offender whether he would be prepared to assist him in purchasing gold in Sydney. Apparently, the man in Nigeria was known to the offender as a manager of property which the offender’s family had owned in Nigeria. The offender was told that if he assisted in the manner suggested he would be paid the sum of $5,000. The offender agreed to this plan and, following the receipt of the moneys into his CBA account, he undertook the gold purchase transactions to which I have earlier referred.

10. After the transactions were completed the offender said that, as arranged, a man who introduced himself as “Frank” attended on the offender at his home to collect the gold, and paid the offender $5,000 as agreed. Neither the gold nor the moneys have ever been recovered, with the consequence that the victim has been defrauded of some $290,000.

OFFENDER’S BACKGROUND

11. As I have indicted, the offender was born in Nigeria. His mother and father’s marriage was unsuccessful, and they separated. In 2012, the offender migrated to Australia with his father. His mother remained in Nigeria. He has a brother and a sister. Since his immigration to Australia he has been unable to return to Nigeria to see his mother.

12. He completed his HSC, and has worked in warehousing, and then as a truck driver. He told the Court that he is currently employed as a truck driver for a drilling company. He is in fulltime employment, working five and a half days a week, and earning approximately $1500 a week after tax.

13. He is still a young man, being 23 years of age, thus at the time of the offending he was 22 years of age. The offender has an unfortunate criminal past for a man of his age.

14. In 2015, he was charged with robbery in company to which he pleaded guilty. He was convicted and sentenced in July 2017, and received a 17 month imprisonment term which was suspended on him entering into a s 12 bond. On the same occasion, the offender was also convicted of dishonestly obtaining property by deception for which he was sentenced to a term of imprisonment of three months, also suspended on him entering into a s 12 bond.

15. In September 2019, when the first bond was breached, the offender was called up on that bond and an Intensive Correction Order was made, which will continue until 26 February 2021.

16. In April 2018, he committed the offence of stalking and intimidating with intention to cause fear or physical harm. This offence was committed in the context of a domestic dispute. He was sentenced to a Community Correction Order for 12 months, commencing on 4 October 2019 and concluding on 3 October 2020.

17. Thus the offender was on was on conditional liberty in respect of these offences at the time of committing the offences with which I am now concerned.

THE OFFENDER’S PSYCHOLOGICAL CONDITION

18. The offender relied on a report dated 14 September 2020 of Mr Neil Ballardie, a consultant psychologist. Mr Ballardie diagnosed the offender with having a major depressive episode and generalised anxiety disorder during the period of his offending. He opined that on the balance of probabilities there was a likely causal link between external stresses and an exacerbation of his mental condition, and his offending. Mr Ballardie’s assessment was derived to a substantial degree from his conclusions based on the following:

1. The offender leaving his mother in Nigeria; and

2. The pressure which his father and stepmother placed on him to succeed academically in Australia.

19. Mr Ballardie opined that these experiences negatively impacted on the offender’s psychological functioning, affected his self-esteem and confidence, and led to negative ideations, which resulted in depression and anxiety.

20. This conclusion was not accepted by the Crown. The Crown tendered a report of 25 October 2016 from a Mr Jason Borkowski, a forensic psychologist. Mr Borkowski’s report had been obtained by the offender in the context of the robbery in company offence, to which I have earlier referred. Mr Borkowski expressed the view that the offender’s self-reporting, including his responses to a psychiatric diagnostic screening questionnaire assessment, led him to the conclusion that the offender was likely suffering from an adjustment disorder with a mixed anxiety and depressed mood.

21. Importantly, in my view, Mr Borkowski stated that the offender told him that he started to experience adverse psychological symptoms after his arrest on the robbery in company charge. Mr Borkowski does not report any psychological consequences of either the offender’s separation from his mother, or undue pressure placed on him in relation to his schooling. On the contrary, Mr Borkowski opines that the offender’s symptoms were caused in response to his initial involvement with the criminal justice system, when facing the robbery in company charge.

22. The Crown submitted that in all the circumstances the offender had not established on balance that he had a mental condition which was apt to be brought to account in the sentencing task.

23. I am conscious of the authorities which state that mental health issues need not be of a major nature before they become relevant in sentencing. That said, in my view, the Crown’s contention is correct, and it is not appropriate to bring into account any issues going to the offender’s psychological state in the sentencing task which confronts me.

OBJECTIVE SERIOUSNESS

24. The Crown submitted the following were relevant to the assessment of objective seriousness:

1. The sums involved;

2. That the offender converted the money into gold bullion, which were effectively non-traceable; and

3. That the offending occurred over a five day period and involved the offender attending on ABC Bullion on three separate occasions and opening an account with them. Thus, the Crown submitted that the offences could not be regarded as having been committed on the spur of the moment, nor were they fleeting.

25. The Crown submitted that in the circumstances the degree of recklessness exhibited by the offending was high, and that the offending should be characterised as being in the mid-range of offending.

26. The offender submitted that his role was minor, and as such the offending should be considered below the mid-range of objective seriousness.

27. I do not accept this submission. I do not see how the offender’s role in this sophisticated fraud could be described as minor. To my mind his role, while not be involved in the scam’s genesis was pivotal. He was the person who was in Australia and who could carry the nefarious plan into fruition. Moreover, he was obviously trusted by the planners of the crime. This could hardly be gainsaid, as they trusted him with $290,000 in cash, and then the gold equivalent, in circumstances where he was thousands of kilometres away from them. I thus accept the Crown’s contention that the offending is appropriate to be described as in the mid-range for the offences advanced by the Crown.

AGGRAVATING FACTORS

28. The Crown submitted that the following were aggravating factors:

1. That the offence was committed for financial gain; and

2. That the offender was on conditional liberty at the time of the commission of the offences.

29. These are aggravating factors under s 21A (2) (o) and (j) of the Crimes (Sentencing Procedure) Act 1999 (NSW). I accept that these aggravating factors were present and will proceed to sentence accordingly.

30. The Crown also drew attention to the offender’s criminal antecedents. The Crown submitted that this history disentitled the offender to leniency. I agree with this submission, and have considered the offender’s criminal antecedents accordingly, and not as a potentially aggravating factor.

CONTRITION

31. The offender gave evidence of his contrition and remorse for the effects of his offending on the victim. In his evidence he exhibited a degree of insight into the consequences of his offending. The Crown did not cross-examine him to contrary effect. Indeed, I did not understand the Crown to put his contrition in issue. This is a mitigating factor which I will take into account in the sentencing process.

32. The offender submitted that I should find that his prospects of rehabilitation were good, and that as a consequence his prospects of reoffending were low. I can see no basis for this submission. To my mind, the offender’s criminal antecedents, given his age, and his failure to take advantage of non-custodial sentence which had been previously imposed upon him, cause me to be guarded about both his prospects of rehabilitation and his risk of offending.

33. The offender entered an early guilty plea. It was common ground between the parties that as such he is entitled to a 25% discount on whatever sentence might otherwise have been imposed, to reflect the utilitarian value of that plea. I shall afford him such a discount.

34. The Crown correctly submitted that while the offence of money laundering can be committed in a considerable variety of circumstances, it was nonetheless a serious criminal activity and required serious punishment, both by way of personal and general deterrence. I accept this contention and shall proceed to sentence accordingly.

GAOL THE APPROPRIATE PENALTY

35. The Crown contended that in all the circumstances the only appropriate penalty which could be imposed upon the offender was one of a fulltime custodial sentence. The offender urged upon me to sentence an Intensive Correction Order.

36. The resolution of this issue turns heavily upon the appropriate way in which to consider the offender’s relative youth. On the one hand, this is a factor which might ordinarily suggest the appropriateness of a non-custodial sentence. On the other hand, the offender’s youth, when considered in the light of his criminal antecedents, might be thought to indicate that the offender has learnt nothing from his previous experiences with the criminal justice system, and certainly has failed to take advantage of the benefit of non‑custodial sentences which have been imposed upon him.

37. In his evidence before me, the offender agreed that he was seduced by the prospect of easy money, and that he was regretful for agreeing to participate in the transactions, for which his remuneration of $5,000 was, to use his own words, “too good to be true”. This, to my mind, bespeaks a ready preparedness to engage in criminality for gain. I am of the view that the criminal antecedents of the offender demonstrate that he has learned nothing from his previous offending, and that the offender has gained no benefit from the leniency which has thus far been provided to him by sentencing judicial officers. Also relevant is the fact that the offender is currently the subject of an Intensive Correction Order.

38. Accordingly, taking these matters into account, I find that having considered all alternatives, there is no appropriate penalty other than one of fulltime custodial imprisonment.

SPECIAL CIRCUMSTANCES

39. I find that the sentence which I am about to impose will constitute the offender’s first time in custody to be a special circumstance.

APPROPRIATE COMMENCEMENT DATE FOR SENTENCE

40. The offender has spent one month and six days in custody for these offences, I shall take that time already spent in custody into account in determining the appropriate date for the sentence for which I am about to impose.

AGGREGATE SENTENCE

41. I propose to deal with this matter by way of aggregate sentence. I have taken this course, because in my view this approach best accommodates the requirements of proportionality, accumulation, concurrence, and totality. Accordingly, I indicate that such a sentence has been imposed for the purpose of s 53A (2) (a) of the Sentencing Act. I am also required to indicate the sentences which I would have imposed for each offence had separate sentences been imposed for other than an aggregate sentence.

42. In setting forth the following indicative sentences and the aggregate sentence, I have taken into account the matters set forth earlier in these reasons in relation to the objective seriousness of the offending, together with aggravating factors and mitigating factors, to which I have referred. The discount for the early plea has been applied to each indicative sentence and thus derivatively to the aggregate sentence, with rounding down in certain circumstances to the offender’s benefit.

43. I have taken the Form 1 offence into account in respect of count 2, that is the sequence 10 offence, I thus increase the penalty which I would have otherwise imposed for count 2, to first, fulfil the need for personal deterrence, and, secondly, to reflect the community’s entitlement to extract a retribution for the offence.

44. In arriving at both the indicative sentence and the aggregate sentence, I have attempted to carry into effect the instinctive synthesis described by McHugh J in Markarian v The Queen (2005) 228 CLR 357. The following indicative sentences are head sentences, and are as follows:

45. Sequence 9, nine months.

46. Sequence 10, 11 months.

47. Robert Omoregie, stand,

48. You are convicted of the offences which bring you before the Court. You are sentenced to a term of imprisonment of 12 months with a non-parole period of seven months. I direct that such term of imprisonment shall commence on 3 September 2020 and that the non-parole period shall expire on 2 April 2021, with the balance to expire on 2 September 2021.

**********

Decision last updated: 30 November 2020