DPP v Ikebudu [2024] VCC 919

1. Maxwell Ikebudu, on 24 April 2024 a jury found you guilty of one charge of conspiracy to defraud and eight charges of intentionally dealing with the proceeds of crime. You were acquitted on one charge of intentionally dealing with the proceeds of crime.

1. The prosecution case was that you conspired with unknown persons, believed to be overseas, to defraud a range of people and businesses here in Australia. I shall refer to those unknown people as the syndicate. Whilst nothing is known about them, the activity engaged in to carry out the frauds indicates that they possessed skills in computer hacking.
2. The method used by the syndicate to carry out the frauds involved hacking the email accounts of people involved in businesses or organisations. That access was used to trick debtors into paying the amounts owing into a bank account controlled by the syndicate of which you were a member. In a number of the Events in the trial access to the emails was thought to have been achieved via phishing scams.
3. The syndicate hackers took advantage of human error, initially to gain access to the accounts, then in people not checking the details of the email addresses, and finally, in those people not checking in person when receiving a change of bank account notification. Once the funds had been transferred the syndicate would continue to correspond with the victims using the compromised emails in an effort to delay the victims becoming aware of the fraud. This was done to give the syndicate time to clear the bank account before the fraud was discovered and the account frozen.
4. Your conduct, in connection to the charges upon which you were found guilty, was:
   • You recruited and/or managed two people whose accounts received the fraudulently obtained funds;
   • You received money into your and your then partner's bank accounts, believing it to be the proceeds of crime;
   • You created and controlled multiple bank account using the identities of real people without their knowledge or consent. To do this you used multiple mobile phone numbers which you switched between multiple mobile phone handsets to create and control the fraudulent accounts. You did this to make it more difficult to trace the owner of those accounts;
   • You provided the syndicate with Australian bank account details for receipt of the fraudulently obtained funds; and
   • You took steps to distribute funds which had been paid into the bank accounts by the victims and convert them into forms which could be sent overseas, such as crypto-currency, gold bullion or other expensive and portable items.
5. In the course of the trial nine "Events" were the subject of evidence. These Events together were the evidence relied upon to prove Charge 1, and each Event was associated with an individual charge. You were found guilty on a proceeds of crime charge in respect to each Event, save for Event 6 (Charge 7).
6. I will sentence you on the basis of the other Events and the related charges and on Charge 1, having no regard to the matters which were alleged in respect to Charge 7.
7. The start date of Charge 1, the charge of conspiracy to defraud, was 19 February 2019, and the end date 6 July 2021. The balance of the charges were alleged to have occurred in the same time frame with Charge 2 commencing on 28 February 2019 and the last date alleged in Charge 10 being 11 June 2021.

1. In early 2019 the syndicate gained access to the emails of a building company called ASBuild NT. By monitoring the emails of a director of that company the syndicate became aware that invoices were to be paid by the Anyinginyi Health Aboriginal Corporation (Anyinginyi), and by Charles Darwin University.
2. Utilising their access to the emails of ASBuild the syndicate hackers sent out emails to Anyinginyi and Charles Darwin University which purported to be emails from ASBuild. In each it was stated that ASBuild had a new bank account and provided the new BSB and account number.
3. On 28 February 2019 Charles Darwin University paid the amount of their invoice, $662,697.47, into the new account. On 1 March 2019 Anyinginyi paid their invoice, transferring $307,128.02 to the same account. The amount fraudulently obtained by the syndicate was $969,825.49.
4. The account into which the money was paid was a NAB account in the name of Aleadin Kwkw. Mr Kwkw was a real person who had been recruited by you to be a 'mule', that is, to provide his bank account details for use by the syndicate on the basis that he would receive a percentage of the money as a reward.
5. The prosecution put into evidence messages between Kwkw and a contact in his phone with the name 'Nigerian Plug Million'. The prosecution alleged, and by their verdict the jury accepted, that you were 'Nigerian Plug Million.' These messages showed discussions between you and Kwkw about him providing his bank details and what percentage he would receive. You first told Kwkw he would get 25 per cent, which he felt was not enough. He pressed for a higher percentage and you told him that the best you could do was 30 per cent as you worked for a syndicate.
6. Following the money being deposited into Kwkw's account there were transactions moving and distributing the funds. There was CCTV evidence showing you in company with him on the day of some of these transactions. The transactions dispersing the fraudulently obtained funds included:

(a) one kilogram of gold bullion at the cost of $61,270.48;

(b) the purchase of an Hublot watch for $58,200.00;

(c) purchase of US currency costing Australian dollars $18,899.55.

1. Of the $969,825.49 fraudulently obtained in this Event, $513,769.36 was recovered, leaving a loss of approximately $456,056.13.
2. Charge 2 was put on the basis that you aided, abetted, counselled or procured Kwkw to receive the fraudulently obtained funds. This was proved by the messages showing your recruitment of him and then your conduct in directing or supervising his distribution of some of the money. You also later had the Hublot watch in your possession.

1. In around June 2019 the hackers from the syndicate compromised the email of a business called Force One. The hackers by this method altered the bank details on an invoice sent to Force One by a construction company. The person who received this change of banking details was overseas and did not realise it was from an email account which was slightly different to the correct email address.
2. On 14 June 2019 Force One paid the invoiced amount, $1,333,227.61, into the account provided by the syndicate. This was an NAB account in the name of Bobby Ncube. Once the funds were in that account they were moved into another account in the same name and then further distributed. It was not alleged that you set up or controlled the Ncube accounts.
3. One of the accounts into which money was paid from the second Ncube account was a bank account in the name of Ellen Frew. This account had been created by you in October 2018 using Ms Frew's details. The real Ms Frew was unaware of the account and had nothing to do with its creation or use.
4. On 17 June 2019, $82,900 was transferred into the Frew account from the second Ncube account, as well as other deposits totalling $15,075. Between 19 and 27 June 2019 a total of $97,775.00 was transferred from the Frew account into bank accounts in your name and in the name of your then partner. You had access to these accounts.
5. Once the money was in these bank accounts the funds were further transferred and distributed.
6. When your partner contacted you about these funds, as her account had been frozen by the bank, you told her that the money had been paid by Ellen Frew for the purchase of the Hublot watch.
7. Charge 3 was put on the basis that you received the $97,775.00, believing it to be the proceeds of crime.
8. Of the $1,333,227.61 fraudulently obtained by the syndicate $512,368.19 was cleared from the initial Ncube account and $820,858.81 was recovered.

1. In January 2020 the syndicate hackers compromised an email account of the executive manager of the Kowanyama (Aboriginal Shire) Council. Using this access the hackers sent an email to the council purporting to be from AON Insurance, advising of a change of bank account for the payment of the council's insurance premium.
2. On 16 January 2020 the council paid the invoiced amount, $1,410,501.83, into the false bank account. That account had been created by Timothee Traore in early December 2019.
3. Mr Traore was a real person, a Frenchman who arrived in Australia in November 2019. Once in this country he opened a number of bank accounts, including the Commonwealth Bank account used in this fraud. The jury accepted you aided, abetted, counselled or procured him in receiving the funds. Whilst there was no evidence, unlike the case with Kwkw, that you recruited Traore yourself, you were in company with him or travelling with him from his arrival in Australia on 29 November 2019 until 31 January 2020.
4. During that time the two of you stayed at the same hotels and there was evidence that you went with Traore when he carried out transactions distributing the fraudulently obtained funds. I note that there was evidence of your presence nearby in some but not all of these transactions. Traore left the country on 4 February 2020.
5. Once the money had been paid into Traore's account it was distributed by transfers and purchases of gold bullion, foreign currency, and a Rolex watch. That watch, for which he paid $13,500 second hand, was found in your possession when you were arrested. In total, $769,218.70 of the money was converted into bullion, currency and other goods.
6. None of the $1,410,501.83 fraudulently obtained by the syndicate was recovered.

1. In July 2020 the email account of IM Rail's director, Daniel Guerlin, was compromised by the syndicate hackers. IM Rail had completed some works for Rail Track Corporation and had sent an invoice with the correct bank account on it. Impersonating Mr Guerlin, the hackers sent emails to Rail Track Corporation, stating that IM Rail had changed its bank account. The fraudulent account was a Suncorp bank account in the name of Thomas Windsor.
2. On 10 July 2020 Rail Track Corporation paid $38,728.25 into the Suncorp, Thomas Windsor account.
3. The prosecution case, which the jury accepted, was that you created that bank account using details of the real Thomas Windsor. You were in control of this account and thus intentionally received the $38,728.25, believing it to be the proceeds of crime.
4. The prosecution were able to demonstrate a network of links between phone numbers, mobile phone handsets in which numbers were used and handsets found in your possession on your arrest.
5. The money in the Suncorp account was transferred to various external accounts and used to purchase cryptocurrency via various currency exchanges.
6. Charge 5 was put on the basis that you, in control of the Thomas Windsor account, received the $38,728.25 believing it to be the proceeds of crime.
7. None of the fraudulently obtained money was recovered and Mr Guerlin's business went into liquidation.
8. In addition to the Suncorp Thomas Windsor account some of the funds were transferred to a Bendigo Bank account, a Swyftx Trading account and a Coinspot account, each of them which were also in the name Thomas Windsor and had been created by you.
9. Your role in this and the following Events was to create the bank account which would receive the funds, receive them and then disperse the funds from that account into forms which could then be sent or transferred overseas. It is not known what benefit you would receive for this conduct but the only reasonable conclusion is that you received some substantial monetary reward.

1. In November 2020 the email account of a solicitor at Osborn Law in New South Wales was compromised. On 30 November 2020 settlement was due to a client, KP, for the sale of her property. A fraudulent email purporting to be from KP provided Osborn Law with false details to receive the settlement funds. An employee of Osborn Law failed to follow protocol and did not call KP to confirm the change of details and she updated PEXA, an app used for real estate transactions, with the fraudulent account details. At settlement, $3,909,733.97 was paid into the account provided which was a Citibank account in the name of Amanda Roberts.
2. Several transfers were made from the Amanda Roberts account into an account in the name of Ollfat Abaker. The SIM card for the phone number used to set up the Abaker account was in the name of Amanda Roberts. The SIM card for this number was found in your wallet when you were arrested. An IMEI check showed this SIM card was used in a mobile phone handset found in your possession when you were arrested.
3. The prosecution case was that you created the bank account in the name of Amanda Roberts and were in control of that account. You thus intentionally received the money believing it to be the proceeds of crime. It also appears that you set up the bank account in the name of Ollfat Abaker which was used to clear the funds.
4. The real Amanda Roberts had nothing to do with the fraud. By unknown methods her identity and details had been obtained and used by you to set up the bank account.
5. Of the $3,909,733.97 stolen by the business email compromise of Osborn Law, approximately $3,319,741.81 was recovered, leaving a total loss of $589,992.16. Fortunately for KP the law firm's insurance compensated her for the lost funds.
6. A victim impact statement from one of the principals of Osborn Law was provided. She tells of the distress that she and her husband and business partner felt at the breakdown in the relationship with the firm's solicitor and the loss of the client. She was concerned about the harm to her business in practical terms and in terms of reputation and she had to seek professional assistance from a psychologist to deal with these various stressors. Furthermore, whilst the firm's insurance ensured that the client did not suffer a loss, there was an excess payment of $20,000 and then increased premiums and professional development and risk management issues.

1. In March 2021 the emails of a business called Design Group were accessed by the syndicate hackers. An email was sent to an accountant in Design Group purporting to update the account details of one of Design Group's creditors. The details were updated with the new fraudulent account and three invoices were paid over 11 and 12 March 2021, totalling $80,960.50.
2. The bank account into which the moneys were paid was a Citibank account in the name of Daniel Wilson. The prosecution alleged, and the jury accepted, that you created that account and were the person in charge of it when the money was deposited. You thus intentionally received the money believing it to be the proceeds of indictable crime.
3. Following the receipt of the fraudulently obtained money a purchase of gold bullion was made using $48,164.87 from the Daniel Wilson account.
4. The prosecution were able to show a network of connections between you and that account, including the details used to create the Daniel Wilson account, accounts which deposited into that account, activity in connection to the Daniel Wilson the account and your iPhone.
5. Daniel Wilson is a real person whose details had been used without his knowledge or consent by you.
6. None of the fraudulently obtained money was recovered.

1. In April and May 2021, the syndicate hackers obtained access to the emails of a real estate agent working for Right Choice Real Estate in New South Wales. Emails between the agent and a client who was about to purchase a property were intercepted. Using the access to the real estate agent's email the syndicate sent an email to the client with new fraudulent account details.
2. Acting on that information, on 17 May 2021 the client paid the deposit for the purchase of the property, $28,452.50, into the fraudulent bank account. Funds from that account were used to purchase gold bullion totalling $27,112.58 and $1,326.03 was used to order currency from Danesh Exchange. A total of $28,438.61 of the fraudulently obtained funds was dispersed within days of receipt.
3. The fraudulent bank account was in the name of Lachlan Grace. Mr Grace is a real person whose identity details were used without his knowledge or consent.
4. The prosecution case was that you created the Lachlan Grace account and were in control of it when the client paid the $28,452.50 into that account. You thus intentionally received the money believing it to be the proceeds of indictable crime.
5. The prosecution relied on the use of the phone numbers used to create the Lachlan Grace account in two iPhone handsets used by you and which were in your possession on your arrest. Furthermore, there were notes in your gold iPhone with information linked to the Lachlan Grace account and associated details.
6. Of the $28,452.50 fraudulently obtained through the business email compromise of Right Choice Real Estate, approximately $1,326.03 (the Danesh exchange transaction) was recovered, leaving a total loss of approximately $27,126.47.

1. Mr Lowe had engaged Domaine Homes in New South Wales to build a house. In June and July 2021, the syndicate hackers accessed email accounts belonging to Mr Lowe and an employee of Domaine Homes. On 1 June 2021 Mr Lowe received an invoice purporting to be from Domaine Homes but which had bank account details on it which were different. On 9 June 2021 he authorised payment of $91,995.00 into that account believing it to be the correct bank account.
2. The account into which the money was paid was a NAB account in the name of Marlin Kody. That account had been created by you. The mobile phone number which was also used in creating that account had been used in three different handsets, all of which you had in your possession at the time of your arrest. There were other links to you including notes in your iPhone with details of Marlin Kody.
3. Following you receiving the $91,995.00 into the Marlin Kody bank account on 9 June 2021, there were two transfers out of that account, one on 10 June 2021 for $16,130.80 and then on 11 June 2021 for $17,435. $58,399.55 was frozen by the bank and recovered, resulting in a total loss of $33,565.45.
4. The jury accepted you were in control of the Marlin Kody account and intentionally received the money believing it to be the proceeds of indictable crime.

1. On Sunday 1 August 2021 the authorities were alerted to you being in the process of leaving the country. You were arrested that evening just before you were about to fly out of Australia. You and your luggage were searched. Among the items found were the iPhone you were using at the time and six other mobile phones. In your wallet was a bundle of nine SIM cards, some of which related to the offending. You also had the Rolex watch which had been purchase by Mr Traore.
2. When you were interviewed you denied any involvement in the offending, you said you were leaving the country because you had had enough of Australia.

1. You were born and raised in Nigeria. You told me that your father is a successful businessman and politician in Nigeria, that your family are well respected and Christian. You are the third son and have four brothers and an adopted sister. Your eldest brother holds a degree from an English university in Business and your second eldest brother has degrees in Medicine and Business. Your younger two brothers both have degrees in Business, one from a university in Ireland and another from Canada. Your sister, who is 16, is still at school.
2. When you were 18 you moved to live in the United Kingdom and enrolled in a course in the foundations of law with the plan to study law at university. You also studied various social science subjects. You decided to move to Australia as you had heard positive things about this country and studying here. Your father tried to persuade you to move to the USA as your second eldest brother lived there, whereas you had no family or connections here in Australia.
3. You nevertheless decided to move to Australia and were supported by your family financially to do so. You arrived in Australia in 2013 when you were 23 years old. You were on a student visa and were enrolled to study a diploma or Bachelor of Business or commerce at Holmes and also law at Deakin University. You ceased to study at some point and later started a moving business. When you were committing these offences, from 2019 to 2021, you were not employed in any legitimate job. You told the police and me that you received financial support from your family.
4. In your written submissions you say you found it difficult to adjust to living in Melbourne. You had no family here and you say you found it difficult to meet people with similar goals and aspirations and similar backgrounds.
5. In 2017 you met and then moved in with Ms Noe. That relationship continued until mid-2019 when Ms Noe's bank accounts were frozen due to the transactions in connection to Event 2. After that time you appear to have lived in hotels and short term rental accommodation. Between 6 June 2019 and 13 September 2019, you were held in the Broadmeadows Immigration Detention Centre.
6. You say that you still wish to study law with a view to helping people to the best of your ability.
7. You have no prior convictions which is a factor in your favour.

1. It is difficult to assess your prospects of rehabilitation. On the one hand you are a man of obvious intelligence. You come from a respectable family which clearly has the expectation that its children will attend university and have successful professional careers. You have no prior convictions.
2. On the other hand, you engaged in this conduct for more than two years. You were active in creating bank, email and phone accounts and then in receiving and laundering the fraudulently obtained money. I was not told of any motivators for the offending given your stance that you are not guilty, but there was nothing before me to suggest you had any gambling, drug, or alcohol issues. It appears to me that you offended to make money.
3. I consider that you do have some prospects for rehabilitation which I will describe as reasonable. It is to be hoped that the process of being charged, remanded and then sentenced, will act as a significant deterrent upon you when you balance the monetary rewards with the impact of the consequences of being caught and sentenced on your life.

1. In your written submission for the plea you stated that you had intended, when coming to this country, to make a life here and eventually obtain citizenship. You said at the plea hearing that you were heading back to Nigeria when you were arrested to re-apply for an appropriate visa that would let you come back to Australia and study law. You submitted that the convictions and likely deportation would destroy you and your family's hopes that you would study law and then take up political life. You said that you still wanted to study law and noted that it would be difficult to do so in Australia as you would be unlikely to get a visa here in view of the convictions.
2. The prosecutor pointed me to fact that when you were arrested you had a one-way ticket back to Nigeria by way of Qatar and an application for a visa for New Zealand in your possession. She also pointed me to a portion of a police interview in which you said you completed a Diploma of Commerce after you came to Australia but that you took some time off from studying law. You had some issues with immigration and your visa and since 2014 you had been running a removalist business.[1] When you were arrested you were on your way back to Nigeria. You said that following the issues with your visa and some issues going on in your life you thought it best just to go home.[2]
3. The law provides that where the prospects of deportation will make the experience of custody more burdensome, this is a factor in mitigation of sentence. The extent to which this is so will depend on the facts of each case. You have no friends or family here that I have been told about. You had ceased your studies in 2014 and the relationship between you and Ms Noe was over by mid-2019. You had no employment nor ties to the community here.
4. I am not satisfied on balance of probabilities that you did intend to return to Australia and continue a life here. It is significant that you had a one-way ticket and that you did not suggest to the police when you were interviewed that you had intended to return to this country.
5. I accept that going home in disgrace, as compared to your family expectations and the success of your brothers, will be embarrassing for you but I do not accept on balance of probabilities that your time in custody will be made more burdensome due to your concerns about losing your planned life here in Australia or about the conditions you will face on your return to your home country.

1. You were arrested on 1 August 2021 and have remained in custody since then. Over 2021 and 2022 you were transferred eight times between different facilities and units. You were regularly required to undergo periods of quarantine in this time frame due to the pandemic. There were also periods of limited movement and time out of cell due to safety issues for you.
2. Shortly after you were put in custody you reported a desire to self-harm and were put into an observation unit at the Melbourne Assessment Prison. You have had regular contact with a psychiatric nurse and it was apparent during the course of the trial and during deliberations that the process of being brought into court each day was onerous and stressful for you.
3. In February 2022 there was an incident in which you were assaulted by another prisoner. You suffered a large laceration over your left eye which required you to be taken to hospital for treatment. You were transferred from Margoneet Correctional Centre to Port Phillip Prion and then Fulham for your safety following that incident. In May 2022 you were transferred to Ravenhall and have remained at that facility since.
4. Whilst in custody you have done eight different educational courses. Given your intelligence and education I suspect that most of these were more of a way to pass time than for needed learning.
5. You have had phone contact with the outside world but no visitors. I accept that not having family or friends visit whilst you are serving your sentence will make you more isolated and thus the experience of prison more onerous.

1. Before turning to my assessment of the gravity of the offending, I will address an issue which arises in view of the overlap between the conduct relied upon to prove both the conspiracy charge and the other charges.
2. In the course of the plea hearing I indicated that to ensure you were not punished twice for the same conduct I would order a significant degree of cumulation between the sentence on Charge 1 and the other charges.
3. On further reflection and having reviewed the authorities, in particular Wei Tang v The Queen[3], I will not have regard to your conduct in aiding, abetting, counselling or procuring Kwkw or Traore to receive the money or you receiving the money in the other charges when sentencing on Charge 1. This is because:[4]

'To the extent to which two offences of which an offender stands convicted contain common elements, it would be wrong to punish that offender twice for the commission of the elements that are common. No doubt that general principle must yield to any contrary legislative intention but the punishment to be exacted should reflect what an offender has done; it should not be affected by the way in which the boundaries of particular offences are drawn. Often those boundaries will be drawn in a way that means that offences overlap. To punish an offender twice, if conduct falls into that area of overlap, would be to punish offenders according to the accidents of legislative history rather than according to their just deserts.'

1. The offence of conspiracy to defraud addresses the criminal conduct of agreeing to defraud others and intending to do so. In assessing the gravity of that offence the court considers the degree of criminality having regard to the scope and duration of the conspiracy as a whole, as well as the individual culpability of the offender in issue.[5] I note the following passage from the Court of Appeal judgement in DPP v Fabriczy,[6]

[15] 'The charge of conspiracy is brought because "criminal action organised, and executed, in concert is more dangerous to society than an individual breach of the law'. ...

[16] 'The essential feature of the offence of conspiracy is the agreement between two or more persons to commit the crime, sometimes referred to as the element of 'concert'. It is this element which differentiates the offence of conspiracy to commit a substantive offence from the offence of attempting to commit the substantive offence, and from the substantive offence itself. The element of concert makes the offence of conspiracy more serious than if an individual were acting alone to plan and commit the offence, as the likelihood of the crime occurring is increased by the involvement of multiple participants making a commitment to each other to do so. There is said to be a "dangerousness" inherent in the plotting, "either because several may achieve what an individual would find difficult or impossible, or because other criminal plans may emerge from the group.' ...

[17] 'The extent of the offender's participation in the combination, established by reference to his or her individual acts and declarations, will inform but not determine the conclusion as to the offender's degree of criminality. The individual offender is to be punished for involvement in the conspiracy and not just for the acts that he or she performed.'

1. The prosecutor submitted that the following factors are relevant to assessing the objective gravity of Charge 1:

(a) the role of the offender in the agreement;

(b) the length of time of the agreement;

(c) the amount of money involved;

(d) the position of the offender in the hierarchy;

(e) whether there is planning or premeditation;

(f) the sophistication of the scheme; and

(g) whether a breach of trust is involved.

1. Between February 2019 and July 2021 the conspiracy defrauded a range of businesses and people for a total sum of $7,863,424.54. Of that amount $4,714,095.56 was recovered with a total loss therefore of $3,149,298.88.
2. The scheme was a sophisticated one requiring skill and consistent effort. You played an important role in the syndicate. An essential step in the process of these frauds was that an Australian bank account had to be provided to the prospective victims. The funds then needed to be cleared from that account as swiftly as possible and converted into assets which could be moved overseas. As the person who set up the bank accounts, provided them to the syndicate and then cleared funds from the receiving accounts (noting that the prosecution did not seek to prove that you set up or controlled the Ncube accounts) you were not a minor player. Having regard to the expert evidence, the prosecution submitted that you were a middle-ranked member of the syndicate.
3. In Events 4, 5, 7, 8 and 9, the bank accounts you set up were in the name of real persons whose identities were used without their knowledge or permission. It is unknown how you came to get that information for each identity used but you used that information to set up email, phone and bank accounts.
4. You engaged in this conduct as part of the syndicate for nearly two and a half years. In that time the syndicate defrauded various businesses of approximately $7.86m. Some of that money was recovered due to actions of the banks but even where insurance covered the difference or lost funds, the victims suffered loss and harm.
5. It is not clear to me what financial reward you received but it is obvious that you took part in this conspiracy for financial gain.
6. Having regard to all of those matters, I consider your offending in respect to Charge 1 was a serious instance of being a party to a conspiracy to defraud.

1. In respect to the other charges the prosecution submitted that the following factors were relevant to the assessment of the gravity of the charges:[7]

(a) the seriousness of the offence in the scheme of 'money laundering' offences in Division 400 of the Criminal Code;

(b) the precise circumstances of the conduct which constitutes the offending;

(c) the nature of the actions which constituted 'dealing';

(d) the period of time over which the offending occurred;

(e) the number of transactions involved;

(f) the amount of money involved in the offending;

(g) the role of the offender, including his or her degree of authority and initiative in any money laundering arrangement; and

(h) the extent of the offender's belief or knowledge that the money was the proceeds of crime.

1. In assessing your conduct for those charges I have had regard to the following as to how involved you were in aiding, abetting, counselling or procuring the holder of the bank account used to receive the funds or you yourself receiving the funds:

(a) you had recruited Kwkw , as shown by the messages;

(b) you managed Traore after he arrived in Australia. The phone and other records show you were with him or near him frequently for nearly the entirety of his time in Australia; and

(c) you were well aware that Kwkw and Traore received the funds believing them to be the proceeds of crime.

1. Whilst each charge of dealing with the proceeds of crime was put on the basis of receiving one or a limited number of deposits of the funds into the bank account, it cannot be said that any of the charges were one-offs or occurred in isolation. Furthermore, you received the funds aware that this was the first step in the process of laundering the fraudulently obtained moneys.
2. Whilst your conduct in aiding, abetting, counselling or procuring Kwkw and Traore was different to the conduct in setting up and then receiving the moneys in the other charges, I do not consider that the difference in conduct leads to any real difference in culpability for those charges.
3. The principal and important difference in assessing the gravity of each charge is the quantum of money received and where that amount sits in the hierarchy of offences under these provisions. As noted by the prosecutor the amount received in a number of the charges was many multiples of the threshold amount applying to the charge and in some charges close to the next threshold level.

Charge 2 - Threshold $100,000 - Koko received $969,825.49.

Charge 3 - Threshold $50,000 - you received $97,775.

Charge 4 - Threshold $1,000,000 - Traore received $1,410,501.83.

Charge 5 - Threshold $10,000 - you received $38,728.

Charge 6 - Threshold $1,000,000 - you received $3,909,733.97.

Charge 8 - Threshold $50,000 - you received $80,960.50.

Charge 9 - Threshold $10,000 - you received $28,452.50.

Charge 10 - Threshold $50,000 - you received $91,995.

1. Of course in assessing the gravity of each charge I have had regard to the fact that the different amounts received are reflected in the different maximum penalties which apply.

1. Whilst the only victim impact statement provided was from Ms Howson, I do not take this to mean that the other victims of the frauds were unaffected. I consider it certain that most of the people involved would have felt stress and distress and have experienced some or all of the practical and emotional impacts described by Ms Howson.
2. As I have already noted, the victim in respect to Event 4 had to go into liquidation. Other entities, such as the Kowanyama (Aboriginal Shire) Council, had to deal with the consequences of the diverted insurance payment. Most of the victim entities had to employ IT specialists to figure out how the fraud had been carried out. Even where there was complete or significant recovery of the funds these stresses will have applied.

1. Some of the offences before me are particularly serious instances of the type of charge, notably Charges 1 and 6. Because of the number of charges upon which you fall to be sentenced, however, the orders for cumulation between the charges have been significantly moderated so as to ensure that the total effective sentence imposed adequately and properly reflects the totality of the offending and your circumstances.
2. When sentencing for State offences the orders for cumulation can show how the sentencer attempts to ensure that, and indicate, how each charge has an actual impact on the total effective sentence. This is more difficult to articulate within the complexities of Commonwealth sentencing. In this case that means there is complete overlap of some of the Commonwealth sentences with the State sentence. Whilst the mechanics of the orders for commencement of the Commonwealth sentences are formulaic, in arriving at the total effective sentence I have had regard to the totality of the offending and your circumstances.

1. Section 17A of the Crimes Act 1914 requires that I only impose a sentence of imprisonment on a Commonwealth offence if I have concluded that no other sentence is appropriate in the circumstances of the case. In this case I am satisfied that any sentence other than imprisonment would be wholly inadequate. Similarly, I consider any sentence other than imprisonment on Charge 1 would also be inadequate.

General Deterrence, Denunciation and Just Punishment

1. General deterrence is a significant factor in sentencing you. Your receiving of fraudulently obtained funds and the various activities you engaged in as part of the conspiracy must be discouraged by the courts. Modern commerce relies heavily on email as a form of communication and electronic transactions. In a case about frauds against financial institutions the Court of Appeal said:[8]

'The courts have consistently stated that this type of offending warrants stern punishment because it is difficult to detect and strikes at the heart of the financial system. General deterrence is of paramount importance in order to convey a clear message that those who seek to financially benefit from fraudulent activities will be incarcerated for lengthy periods when they come before the courts. Denunciation and protection of the community from fraudulent activity are also important sentencing considerations.'

1. It is apparent that the methods used by you to receive and disperse the fraudulently obtained money changed over time. Whether this was due to the pandemic or was a development in sophistication is not clear. What is clear is that the methods you used made it harder to detect your involvement. Whilst there is no evidence before me as to your expected or actual payment for this offending, I consider that the only reasonable conclusion is that you expected to be paid very well for your work.
2. These factors mean general deterrence, just punishment and denunciation all must carry significant weight in the sentencing discretion.
3. The prosecutor also submitted, with reference to the expert evidence given in the trial and in the depositions, that this type of online fraud was prevalent and on the rise. She pointed to evidence that.[9]

'According to the Australian Cyber Security Centre (ACSC) 2020-201 Annual Report, BEC offences consist of 7% of all cyber incidents in Australia for the 2020-21 financial year. The reported losses for that financial year was $81.45 million AUD. These figures are a 15% increase on the losses from previous years. According to the ACSC 2021-22 Annual Report, reported losses for BEC offences was over $98 million AUD.'

'In my opinion, there is a significant degree of underreporting in relation to these figures. I base this opinion on the fact that I have been told by employees of major Australian financial institutions that companies listed on the Australian Securities Exchange (ASX) have suffered losses in the millions of dollars and have not reported these losses to law enforcement because of concerns that the company would suffer reputational damage and/or a drop in its share price if these losses became public knowledge. I also base this opinion on the fact that some victims have told me that they were embarrassed when they report these types of incidents to law enforcement, and this embarrassment could prevent other victims coming forward to law enforcement in the first place.'

1. You did not challenge the submission by the prosecutor as to prevalence, noting that you were not able to do so as this information was outside your knowledge. Because of that position I have been cautious to accept the prosecution argument. I note that the evidence was that frauds of this type formed only seven per cent of the cyber incidents in 2020 and 2021. The figures given are now some years old with no evidence of whether there has been an increase or fall since 2022.
2. Thus, while I accept that on usual and established principles general deterrence carries significant weight, I do not give additional weight to that factor based on prevalence of this type of offending.

1. As I have noted earlier, I consider you do have reasonable prospects for rehabilitation, but nevertheless specific deterrence is a factor of moderate weight in sentencing you. You are intelligent enough to weigh the reward of offending against the impact of convictions and serving a lengthy sentence on your life both now and in the future.

1. Save for Event 1, no other offender has been charged or sentenced. Kwkw was the person in Event 1 whom you aided, abetted, counselled or procured. He pleaded guilty in 2020 to a single charge of intentionally dealing with the proceeds of crime ($969,825.49), believing it to be the proceeds of crime in an amount above $100,000. The following points were noted by the judge who sentenced him:

(a) Kwkw was 21 at the time of the offending and 22 at sentence;

(b) he had no prior convictions but was sentenced whilst on remand for this offending for dishonesty offending committed in November 2016. In that offending he had used a stolen credit card and obtained some jewellery by that method;

(c) Kwkw was arrested for this offending on 8 March 2019. He told a false story about how he came by the funds. He said he had sent the gold, watch and money to his family in Sudan; and

(d) Kwkw pleaded guilty at the earliest opportunity.

1. Kwkw was sentenced to three years' imprisonment with a recognisance release to commence after having served 18 months.[10]
2. The sentence imposed on Kwkw is a relevant factor to consider when arriving at the sentence on Charge 2. I note that whilst he was the principal offender, you were the person who recruited and then directed his actions both in receiving the moneys and then distributing them. I do not consider your culpability is less than his and indeed I consider it as somewhat higher. He was around 10 years younger than you and importantly had the benefit of an early plea of guilty which you do not.
3. Having regard to your different roles and circumstances, you will receive a sentence markedly higher than that which as imposed on Koko.

1. The prosecution referred me to a number of cases involving dealing with the proceeds of crime and one of a fraud carried out by way of business email compromise. I note that that case, Menzies, was in relation to similar types of offences but involved charges pursuant to the New South Wales Crimes Act 1900 where the maximum penalty which applied on each charge was only three years' imprisonment.[11]
2. Bearing in mind the different circumstances in the cases to which I was referred, and that other sentences do not set upper or lower limits on the sentencing discretion, I have had regard to those cases and found them of some assistance.
3. In your written submission you noted that not all cases of dealing with the proceeds of crime warranted a prison sentence. That is certainly so, but having regard to the circumstances of each charge upon which you were found guilty and the context of the offending, I do not consider that such a disposition is open in respect to any of the charges for which you fall to be sentenced.

1. On Charge 1, conspiracy to defraud, I sentence you to eight years' imprisonment. On that State sentence of eight years, I set a non-parole period of six years.
2. On Charge 2, aiding, abetting or counselling or procuring the commission of an offence potentially dealing with the proceeds of crime of $100,000 or more, I sentence you to four years and six months' imprisonment. That sentence will commence after you have served three years of the State sentence.
3. Charge 3 - Intentionally dealing with proceeds of crime - $50,000 or more - the sentence is three years. That sentence commences after you have served 18 months of the State sentence.
4. Charge 4, Intentionally dealing with proceeds of crime - $1,000,000 or more - the sentence is five years and six months. That sentence commences after you have served four years of the State sentence.
5. Charge 5, Intentionally dealing with proceeds of crime - $10,000 or more - the sentence is two years. That commences after you have served six months of the State sentence.
6. Charge 6, Intentionally dealing with proceeds of crime - $1,000,000 or more -the sentence is six years. That commences after you have served five years of the State sentence.
7. Charge 8, Intentionally dealing with proceeds of crime - $50,000 or more -the sentence is four years, which commences after you have served two years of the State sentence.
8. Charge 9, Intentionally dealing with proceeds of crime - $10,000 or more -the sentence is two years, which commences after you have served one year of the State sentence.
9. Charge 10, Intentionally dealing with proceeds of crime - $50,000 or more -the sentence is four years. That commences after you have served two years and six months of the State sentence.
10. The total effective sentence on the Commonwealth charges is 10 years and six months. I set a non-parole period on the Commonwealth charges of seven years and six months which begins to run when you commence the sentence on the first Commonwealth charge to start which is Charge 5.
11. The combined total sentence across the State and Commonwealth charges is 11 years' imprisonment and you will be eligible for parole on the Commonwealth sentences after you have served a total of eight years across all of the sentences.
12. Pursuant to s18 of the Sentencing Act I declare that you have already served 1048 days as pre-sentence detention and I direct that the declaration be entered into the records of the court.
13. I will make the forfeiture and reparation orders sought by the prosecution.

[3] Wei Tang v The Queen [2009] VSCA 182, [22]-[35] and [73]

[4] Pearce v The Queen (1984) 194 CLR 620, [60]

[5] DPP v Fabriczy [2010] VSCA 334; (2010) 30 VR 632, 633 [2]; Vo v The Queen [2016] VCA 278, [29]

[6] Ibid, [15]-[17] footnotes omitted

[7] Palmisano v The Queen [2021] VSCA 124, [24]; see also Kim v The Queen [2016] VSCA 238, [61] and R v Ly [2014] NSWCCA 78 (2014) 241 A Crim R 192, [86]

[8] Zaia v The Queen [2020] VSCA 6, [108]

[9] Statement of Det Sgt Julian Thornton paragraphs [8] - [9], footnotes omitted

[10] DPP(Cth) v Koko [2020] VCC 98

[11] R v Menzies [2023] NSWDC 535, [1]