R v Yusuf - [2008] VSC 575

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

CRIMINAL DIVISION

No. 1661 of 2008

THE QUEEN

OMAR JIHAD YUSUF

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JUDGE:	OSBORN J
WHERE HELD:	Melbourne
DATE OF HEARING:	6 November 2008
DATE OF SENTENCE:	17 December 2008
CASE MAY BE CITED AS:	R v Yusuf
MEDIUM NEUTRAL CITATION:	[2008] VSC 575

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CRIME – Sentencing – Rolled up charges – Continuing criminal enterprise counts – 107 counts of obtaining property by deception – 19 counts of obtaining financial advantage by deception – Total sum obtained $7,297,400 – 149 victims – Maximum penalties of 10 years imprisonment and for continuing criminal enterprise counts 20 years imprisonment – Fraudulent obtaining of loans for the purported purpose of purchase of trucks – Elaborate pretence of financial substance – Sentencing factors – Punishment – Public denunciation – General deterrence – Specific deterrence – Protection of the public – Plea of guilty – Vulnerability to depression – Cumulation – Substantial concurrence – Totality.

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APPEARANCES:	Counsel	Solicitors
For the Crown	Mr P. Rose QC	Office of Public Prosecutions
For the Accused	Mr R. Richter QC with Ms M. Tittensor	Galbally & O'Bryan Lawyers

HIS HONOUR:

Omar Jihad Yusuf you have pleaded guilty to serial offences of fraudulent conduct comprising 107 counts of obtaining property by deception and 19 counts of obtaining financial advantage by deception. The total sum obtained by you from others as a result of your conduct was some $7,297,400.

This sum was obtained from some 109 members of the public with whom you dealt in the course of the conduct of your business between 2003 and 2005.

The maximum penalty prescribed by the Crimes Act 1958 for the offence of obtaining property by deception (s 81) is 10 years imprisonment, as is the maximum penalty prescribed for the offence of obtaining financial advantage by deception (s 82).

The effect of the continuing criminal enterprise provisions of the Sentencing Act 1991 is however that double these maxima may be imposed upon the counts involving a quantum of greater than $50,000 (other than rolled up charges) subsequent to the first two such counts. Such counts comprise continuing criminal enterprise offences within the categories referred to in Schedule 1A. You have been found guilty of three or more continuing criminal enterprise offences and hence fall to be sentenced as a continuing criminal enterprise offender in accordance with s 6H in respect of each continuing criminal enterprise offence subsequent to the first two, pursuant to s 6I.[1]
[1]R v Grossi [2008] VSCA 51. If the view preferred by Redlich JA at [61] were adopted this would not in the particular circumstances of this case affect the total effective sentence or non-parole period I would impose.

These provisions reflect the fact that Parliament regards repeat offenders of your kind as constituting a special risk to the community.[2] They also reflect the fact that Parliament’s view is that the penalties for continuing criminal enterprise offences imposed prior to 1997 were inadequate.
[2]

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Yusuf

Details

AGLC: R v Yusuf [2008] VSC 575
Case: [2008] VSC 575
Decision Date: 17 December 2008

CaseChat Overview and Summary

The case of R v Yusuf involved the defendant, Yusuf, who faced a substantial number of charges including obtaining property by deception and obtaining financial advantage by deception, with a total sum defrauded amounting to $7,297,400. The case was heard in the higher courts of Australia, where the sentencing for these extensive fraud charges was contested. The court was tasked with determining the appropriate sentence for Yusuf, considering the severity and impact of the fraud, the number of victims, and the maximum penalties applicable to the charges.

The central legal issues before the court involved the principles and factors to be considered when sentencing Yusuf. The court had to balance the need for punishment and public denunciation against the principles of general and specific deterrence, and the protection of the public. Additionally, the court needed to take into account the plea of guilty entered by Yusuf, his vulnerability to depression, the cumulation of sentences, substantial concurrence, and the principle of totality. These principles required careful consideration to ensure a just and proportionate sentence.

The court examined the extensive fraud committed by Yusuf, noting the significant deception involved and the large number of victims. It acknowledged the plea of guilty, which usually attracts a lesser sentence, but also weighed this against the gravity of the offences and the substantial financial harm caused. The court recognised Yusuf's vulnerability to depression but emphasised the need for punishment and deterrence. After considering all relevant factors, the court determined that a balanced approach was necessary to achieve the aims of sentencing while addressing the totality of Yusuf's offending. The court concluded by imposing a sentence that reflected the seriousness of the crimes, the need for general and specific deterrence, and the protection of the public.

The final orders of the court were to sentence Yusuf to a term of imprisonment, taking into account all mitigating and aggravating factors, and ensuring that the sentence was proportionate to the offending while considering the principles of sentencing.

Orders