DPP v Aseeri [2024] ACTSC 18

Introduction

1. Amro Aseeri has pleaded guilty to and is to be sentenced for one count of dishonestly obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT). The maximum penalty is 10 years’ imprisonment or 1000 penalty units or both. The offending occurred on 15 May 2021. It is an offence of joint commission under s 45A of the Criminal Code 2002 (ACT).

Facts

2. The facts upon which the offender is to be sentenced are agreed and are set out in a Statement of Facts which was admitted into evidence. In summary, the offending involved ripping off a supplier of illegal e-cigarettes by pretending to pay for them with cash which was in fact simply paper and then absconding with the goods. The scheme involved Mr Aseeri, Mr Majad Khan, Mr Joshua Rhodes, and Mr Albion Osmani.

3. In 2021, both Mr Aseeri and Mr Khan were 22 years old. Mr Aseeri was slightly older than Mr Khan. Mr Aseeri knew Mr Rhodes because they met at Canberra High School. Mr Osmani and Mr Rhodes were friends.

4. Mr Aseeri and Mr Khan were both listed as contacts in Mr Rhodes’ mobile telephone.

5. The complainant had listed a large volume of IGET branded e-cigarettes for sale on Facebook Marketplace. In about April 2021, Mr Osmani and Mr Rhodes began searching Facebook Marketplace in an attempt to secure an agreement to purchase e-cigarettes in bulk. The complainant received a number of enquiries on his Facebook account from an account in the name of “Josh Rhodes”. The correspondence included providing Mr Aseeri’s mobile telephone number as a contact telephone number.

6. On 10 May 2021, Mr Osmani’s mobile telephone sent Mr Aseeri an SMS message stating: "Josh found a big time supplier".

7. Between 13 and 15 May 2021, the complainant sent and received a number of text messages and telephone calls to and from Mr Aseeri’s mobile telephone, with arrangements being made for "Josh Rhodes" to purchase 12,000 IGET branded e-cigarettes for an agreed sale price of $63,600.

8. The complainant requested the user of Mr Aseeri’s mobile telephone to provide him with proof of their identity and to make a deposit of $600 into his bank account. In response, the user of Mr Aseeri’s mobile telephone sent an image of a New South Wales driver licence in the name of “Haosheng Zheng”, and a screenshot for the deposit of $600, scheduled to transfer on 16 May 2021, originating from an account that was in Mr Aseeri’s name. No such transfer occurred on 16 May 2021.

9. At around this time, Mr Rhodes had entered several search terms into the internet browser on his mobile telephone, including searching "asian australian id" and "australian id". Contained on Mr Rhodes' mobile telephone were several images consistent with being cropped from the driver licence image of “Haosheng Zheng”.

10. At about 7:47am on 15 May 2021, CCTV cameras positioned near the entry of an apartment building in Belconnen (the apartment building) captured a blue Hyundai being driven by Mr Osmani. Mr Aseeri got into the Hyundai, putting a bag on the rear seat.

11. At 10:30am on 15 May 2021, the complainant and the user of Mr Aseeri’s mobile telephone came to an agreement that they would both attend a residence in Bruce (the residence) in order to complete the agreed transaction. The complainant arranged assistance from a friend to transport the e-cigarettes to the location and replied that he would arrive “around 3pm”.

12. At approximately 1:50pm, Mr Aseeri and Mr Khan are captured on CCTV walking through the lobby area of the apartment building, exiting onto the street, and walking into a Woolworths supermarket. They emerge about two minutes later with Mr Aseeri carrying a brown coloured bag.

13. At about 2:00pm, Mr Rhodes, Mr Aseeri, and Mr Khan are seen in or around a Fiat SUV. Mr Aseeri removed a brown coloured bag from the passenger seat and he and Mr Khan examined the contents before returning it to the front passenger seat.

14. At about 2:22pm, the complainant phoned Mr Aseeri’s mobile telephone number and the user of that telephone indicated to the complainant that they would "need 30 minutes to be home". At approximately 2:46pm, Mr Aseeri’s mobile telephone sent the complainant a photograph of the car park outside the residence, presumably depicting the agreed meeting place.

15. At about 2:55pm on 15 May 2021, the complainant and his friend arrived at the carpark located outside the residence. Already at that location was the Fiat SUV, Mr Rhodes, who was carrying the brown coloured bag, and Mr Khan. Both Mr Rhodes and Mr Khan used false names. Mr Aseeri and Mr Osmani were not there.

16. The complainant and Mr Khan got into the back of the complainant's truck with Mr Khan opening several boxes to check the contents, which were then loaded into the Fiat SUV.

17. Once the unloading and loading was completed, Mr Rhodes stated words to the effect: “My dad is waiting for you ... You need to deliver to him. I’ll give the money.” Mr Khan then drove the Fiat SUV away from the location.

18. Once the vehicle had departed, Mr Rhodes said words to the effect: “Where do you want to count the money?” The complainant replied that he was happy to count the money inside the truck; Mr Rhodes passed the brown bag to the complainant’s friend.

19. The complainant’s friend opened the bag and identified that the contents were several paper envelopes roughly the size of Australian currency with rubber bands wrapped around them and with numbers written on the front, purportedly to indicate the amount of money each envelope contained. He opened one of these envelopes and saw that the contents were not money but were instead paper.

20. The complainant’s friend said words to effect: "There's no money. Catch him!" Mr Rhodes turned and started running in the opposite direction away from the truck. The complainant, who prior to this, was standing close to Mr Rhodes, started to give chase. Mr Rhodes escaped and ran to a small blue car which was being driven by Mr Osmani and in which Mr Aseeri was also present in the passenger seat.

21. The complainant contacted police.

22. The Fiat SUV was subsequently recorded on CCTV as entering the underground car park of the apartment building where Mr Aseeri lived.

23. On 17 May 2021, police executed a search warrant at Mr Aseeri’s residence. During the search, police found in the kitchen cupboard two envelopes with rubber bands around them in similar size and shape to Australian currency notes, consistent with those provided to the complainant purporting to contain money.

24. Police offered Mr Aseeri an opportunity to participate in an interview, but he declined.

25. Sixteen fingerprint samples were developed from the brown paper Woolworths bag and its contents. Two fingerprint matches from the external surfaces of the envelopes contained within the bag were identified as being deposited by Mr Rhodes, and one fingerprint match to Mr Khan.

26. Six fingerprint samples were developed from the seizure comprised of the two envelopes with rubber bands that came from Mr Aseeri’s residence. A fingerprint match from the external surface of one envelope was made to Mr Rhodes.

27. The fingerprints of Mr Aseeri, Mr Khan, and Mr Rhodes were found on the envelopes located in the bag at the scene of the incident as seized from the residence, and Mr Aseeri’s fingerprints were found on the writing pads inside the envelopes.

28. Mr Rhodes and Mr Osmani pleaded guilty and were sentenced on the charge of obtaining property by deception.

Objective seriousness

29. The offending itself, for which the offender is liable by joint commission, is in the mid-range of objective seriousness. It involved property of significant value and a premeditated and thoroughly dishonest scheme. The motivation was financial gain. None of the stolen items have been returned to, or recovered for the benefit of, the victim of the offending. There is no evidence as to the financial gain actually realised or what happened to that gain.

30. The offender was not present when the deception in relation to payment took place, although he was involved in the scheme before and after that. Although it is not possible to say beyond reasonable doubt that the offender was the one communicating with the complainant on the offender’s mobile telephone, he was sufficiently involved to lend the use of his mobile telephone and his bank account to the scheme.

Subjective circumstances

31. The offender’s subjective circumstances are described in an Intensive Correction Order (ICO) assessment report as well as some references and other documents tendered by him.

32. He is now 25 years old. He was born in Saudi Arabia. He is the elder of two children. His family lived in many countries to pursue employment and educational opportunities. His parents and younger brother live in Saudi Arabia. He continues to have a supportive relationship with them.

33. His family moved to Australia in 2012. He attended Canberra High School to Year 12 then completed a Bachelor of Health and Medical Science at the University of Canberra. Since 2021, he has been employed at Winnunga Nimmityjah Aboriginal Health and Community Services as a Dental Manager. Prior to that, he worked as a dental technician with another practice and with a labour hire company that provided dental assistants.

34. He has a partner of four years who he met at university.

35. He does not have antisocial companions. He has no difficulties with alcohol or illicit substance use. He regularly goes to the gym and attends the local mosque. He is generally in good physical health. He lives with his partner in an apartment in Reid.

36. So far as his attitude to the offending is concerned, he is recorded as saying that “some elements [in the Statement of Facts] had been noted incorrectly” and that he “stated he felt betrayed and hurt by his accomplices”, but he did not elaborate upon that to the author of the ICO assessment report. He did not seek to minimise the seriousness of his offending or the impact upon the victim. He is assessed as having a low risk of reoffending. He is assessed as suitable for a community service work condition and suitable for an ICO.

37. The offender wrote a letter of apology to the court. He apologised for his actions and expressed his deep regret for “any harm or inconvenience my actions have caused”. The letter refers to what occurred as “my lapse in judgment”. The failure to provide any further information about how or why he became involved with the offending tends to undermine the expressions of remorse. It is not possible to say with confidence that there is true remorse for the conduct as distinct from an attempt to gain a forensic advantage while limiting disclosure of what actually occurred and the motivations underlying the conduct.

38. Having said that, the other references that were put into evidence from work colleagues, the president of the Islamic Society of Belconnen, his partner, a friend, and two doctors established that, apart from the present offending, he is a respected worker and is otherwise of good character.

Criminal history

39. The offender was found guilty of possessing a knife in a public place in 2020. That charge was dealt with without conviction.

Plea of guilty

40. The plea of guilty was entered in the Supreme Court after a criminal case conference. The trial was due to start in the week of 9 October 2023 and a plea of guilty was entered on 4 October 2023. It is a late plea of guilty. It has utilitarian value. A reduction of 10 percent on account of the plea is appropriate.

41. I do not accept the submission made by counsel for the offender that an additional reduction is appropriate under s 35A of the Crimes (Sentencing) Act 2005 (ACT). That was submitted to be on the basis that the plea of guilty avoided the necessity for the complainant to give evidence from Jordan. It has not been established on the balance of probabilities that the motivation for the plea of guilty involved any assistance to the administration of justice as distinct from a rational decision to plead guilty in circumstances where co-offenders had already pleaded guilty and were likely to give evidence in the prosecution case.

Time in custody

42. The offender has spent no time in custody in relation to the offence.

Sentences of co-offenders

43. Mr Rhodes and Mr Osmani have already been sentenced. Both pleaded guilty at an earlier stage.

44. The starting point for Mr Rhodes was 30 months’ imprisonment reduced to 21 months and two weeks. He was given an ICO for that period: R v Rhodes [2022] ACTSC 182.

45. Mr Osmani was sentenced on the basis that Mr Aseeri had a controlling relationship with him: DPP v Osmani (No 2) [2023] ACTSC 128 at [8], and as a result Mr Osmani was a follower rather than a leader in the offending: Osmani (No 2) at [16]. He was also sentenced on the basis that he had a role substantially different to and less than Mr Rhodes: Osmani (No 2) at [19]. The starting point was a sentence of 17 months’ imprisonment, reduced to 12 months on account of assistance to authorities and his plea of guilty. The sentence was suspended with a good behaviour order for two years with 150 hours of community service.

Consideration

46. The offender has chosen not to provide any explanation of his involvement, motivation, or relative role in the offending. Instead, the court has, on the one hand, the agreed Statement of Facts and, on the other, a collection of references which paint a picture of a person of remarkable personal and civic virtue. The lack of explanation as to how or why he became involved with the offending from any reliable source makes it difficult to wholly accept the accuracy of the references given.

47. In the absence of any explanation of his involvement, motivation, and role, it is difficult to accept the expressions of remorse as extending beyond regret at the consequences of his actions. While it may be a reasonable forensic decision to decline to provide an explanation for his involvement in the offending, that also has the consequence that it is more difficult to establish genuine remorse for his conduct.

48. The late plea of guilty had utilitarian value, but it is not reflective of remorse or acceptance of responsibility as distinct from a rational forensic decision.

49. Counsel for the offender submitted that the threshold in s 10 of the Crimes (Sentencing) Act 2005 (ACT) had not been crossed and that the matter could be dealt with by way of a good behaviour order. I do not accept that submission. The offending was serious offending involving goods worth a substantial amount. It was planned and, as I have indicated, thoroughly dishonest.

50. Having said all that, Mr Aseeri has the benefit that, at the time of the offending, he was still a young man and has no relevant criminal history. The evidence indicates that he is not likely to repeat this conduct and, instead, is likely to be able to conduct himself in a way that is lawful and beneficial to the community.

51. In my view, the starting point is a sentence of imprisonment of two years reduced to 21 months and 15 days on account of the plea of guilty. I do not consider the purposes of sentencing require, in the first instance, that he serve his sentence by full-time detention. Further, I accept the submission that, although he is suitable for anICO, this is not a case in which such an order would be of particular utility. That is because there are no specific criminogenic issues that need to be addressed. Rather, I consider that the sentence may be appropriately served by wholly suspending the sentence, subject to a good behaviour order. In order to achieve the denunciation of the conduct and both general and specific deterrence, it is also appropriate to require a period of community service as part of that sentence.

Orders

52. The order of the Court is: 1. On the charge of dishonestly obtaining property by deception (CAN 892/2022) the offender is convicted and sentenced to imprisonment for 21 months and 15 days which sentence is wholly suspended upon the offender entering into an undertaking to comply with his good behaviour obligations under the Crimes (Sentence Administration) Act 2005 (ACT) for a period of two years with the following additional conditions: (a) that he be on probation subject to the supervision of the Director-General and obey all reasonable directions of that person; and (b) that he perform 100 hours of community service within 12 months.

I certify that the preceding fifty-two [52] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Mossop. Associate: Date: