Yusuf v The Queen

Case [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’…

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Yusuf v The Queen [2010] VSCA 266
Case
[2010] VSCA 266
Decision Date

CaseChat Overview and Summary

In the matter of Yusuf v The Queen, the appellant, who was convicted of 106 counts of obtaining financial advantage and property by deception, sought to appeal the total effective sentence of twelve years’ imprisonment with a non-parole period of nine years, contending that it was manifestly excessive. The case was heard and determined by the High Court of Australia. The appellant's primary contention was that the sentence imposed was disproportionate to the crimes committed and the circumstances surrounding the case.

The legal issues before the court involved the proportionality and appropriateness of the sentence. The appellant argued that the sentence was excessively harsh, given the total sum obtained by the deception, which was over $7.2 million, and the number of victims, which was 109. Additionally, the appellant raised concerns about the inconsistencies in the approach taken by the trial judge in sentencing the discrete, rolled-up, and continuous criminal enterprise (CCE) counts, as well as the setting of the non-parole period. The appellant also submitted that there was a substantial lack of remorse shown and poor prospects for rehabilitation upon return.

The court considered the arguments and found that the sentence was indeed manifestly excessive. The court identified errors in the trial judge's approach to the sentencing of the discrete, rolled-up, and CCE counts, as well as in the determination of the non-parole period. The court also noted the appellant's flight from the country and the lack of remorse as significant factors. However, the court acknowledged the seriousness of the crimes committed and the substantial harm caused to the victims. Ultimately, the court determined that the discretion in sentencing was reopened and allowed the appeal. The appellant was re-sentenced to the same total effective sentence of twelve years’ imprisonment with a non-parole period of nine years as originally imposed.

Orders

Orders of the court

We will allow the appeal, quash the sentence passed below and re-sentence the applicant to the same total effective sentence of 12 years’ imprisonment with a non-parole period of nine years as was passed below.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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