Yusuf v The Queen

[2010] VSCA 266

SUPREME COURT OF VICTORIA

COURT OF APPEAL

OMAR JIHAD YUSUF	S APCR 2008 0972
	Appellant
v
THE QUEEN	Respondent

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JUDGES	NETTLE and HARPER JJA and T FORREST AJA
WHERE HELD	MELBOURNE
DATE OF HEARING	16 September 2010
DATE OF JUDGMENT	19 October 2010
MEDIUM NEUTRAL CITATION	[2010] VSCA 266
JUDGMENT APPEALED FROM	[2008] VSC 575 (Osborn J)

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CRIMINAL LAW – Sentencing – Multiple counts (106) of obtaining financial advantage and property by deception – Whether total effective sentence of twelve years’ imprisonment with a non-parole period of 9 years manifestly excessive – Whether judge erred in sentence applicable to discrete, rolled up and CCE counts and to approach to non-parole period – Total sum obtained in excess of $7.2m – 109 victims – Appellant fled country – Substantial lack of remorse and poor prospects of rehabilitation upon return – Inconsistencies in sentencing – Discretion reopened – Appeal allowed – Appellant re-sentenced to original total effective sentence.

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Appearances:	Counsel	Solicitors
For the Appellant	Mr M J Croucher	Galbally & O’Bryan
For the Respondent	Mr B L Sonnet	Mr C Hyland, Solicitor for Public Prosecutions

NETTLE JA

HARPER JA
T FORREST AJA:

1. This is an appeal from a total effective sentence of sentence of 12 years’ imprisonment with a non-parole period of nine years imposed on the appellant on pleading guilty to 107 counts of obtaining property by deception and 19 counts of obtaining financial advantage by deception.  By his offending he defrauded 109 members of the public of a total of $7,297,400, of which only $1,728,648 was recovered.

The facts

1. As appears from the judge’s sentencing remarks, the appellant left school after Year 10 and to begin with was unemployed.  He then obtained jobs in a friend’s takeaway shop and later in his father’s cabinet-making business.  He married in 1992 and worked as a cleaner and a printer’s assistant, and then in his own cabinet-making business.  That business failed and ceased operation in 2000.  In March 2001 he changed his name to Omar Jihad Yusuf after the dissolution of his parents’ marriage.  For a time, he worked as a shop-fitter and then, through a friend, he became involved in the transport industry.

1. He obtained a job as a sub-contractor driving a delivery truck for a transport company known as Transnet.  That company assisted him to purchase a truck and he registered his own business under the name of On The Go Transport.  He conducted it through a similarly named company (‘OTG’).  As time went on, he registered a series of further companies with names indicative of involvement in the transport industry, property investment, shop-fitting, and sports clothing businesses.  The appellant was the sole director of each of those companies.

1. During the period 2002–2003 he developed a ‘core business strategy’ which involved raising capital from members of the public for the purported purpose of purchasing trucks.  The scheme typically sought investment by way of loan of $36,000 secured by a 49% interest in a 12 tonne ‘tautliner’…