DPP v Kwkw [2020] VCC 98

3 You have no prior convictions. However, on 27 June 2019 while you were on remand for the instant offending, you were sentenced by the Magistrates' Court sitting at Heidelberg for obtaining property by deception and without conviction fined $2,500 for offending that took place between 22 November and 28 November 2016. You were not arrested for this offending until 25 May 2017. The factual basis for this offending is set out in Exhibit C on the plea but in summary using stolen credit card information and using a Post Office as a poste restante you obtained two items of jewellery by deception.

4 Tendered as Exhibit A and read aloud in Court was the summary of prosecution opening for plea. In short, a construction company in Alice Springs was the subject of a sophisticated hacking operation. The hacking operation included: ascertaining the identity of debtors to the company who were due to make payment to the construction company in the foreseeable future, notification to those debtors that the construction company's banking details had been changed to your banking details, the alteration of the email address of the principle director of the construction company, Mr Paul Graham, and the manipulation of the company's computer system so that emails addressed to Mr Graham would be stored in what was described as an "RSS feeds folder" that was not accessible to the construction company's administrative staff.

5 It is not part of the Crown case that you were involved in this hacking operation.

6 On 28 February 2019, believing that it was making a payment to the construction company, Charles Darwin University transferred $662,697.47 into your NAB Classic account. On the same day, you transferred $300,000 from your Classic account to your NAB iSaver account to facilitate the use of your credit card.

7 On 1 March 2019, believing it was making payment to the construction company, Anyinginyi Aboriginal Health transferred $307,128.02 into your NAB Classic account. On that day, you transferred $80,000 from your Classic account into your iSaver account and transferred $100,000 from your iSaver account back into your Classic account.

8 On 1 March 2019, you attended on two bullion companies and at the second company, the Australian Bullion Company, purchased a kilogram of gold bullion for $61,270.48 using your NAB Platinum debit card. Later that day, you attended at the Hour Glass watch shop and purchased a Hublot Big Bang Unico watch for $58,200 and later placed an on-line order for US currency to the value of $18,899.55. On 4 March 2019, you attended at a WeXchange cash exchange outlet and took possession of $12,950 USD.

9 On 20 February 2019, an employee of the construction company became suspicious about the contents of an email chain which purported to be a request from Mr Graham to that employee to transfer a large sum in USD to an investment portfolio team in Hong Kong. This resulted in the construction company making inquiries with their IT support company who eventually uncovered the fraud and on 4 March 2019, the company submitted an on-line report to the Australian cybercrime on-line reporting network, the mater was also referred Northern Territory Police. Simultaneously, the NAB froze the funds from Anyinginyi Aboriginal Health and some days later did the same in respect of the payment from Charles Darwin University.

10 You were arrested on 8 March 2019 and members of the Australian Federal Police seized your iPhone. Set out at paragraphs 27 and 28 of the Crown opening are extracts of the texts that passed between you and a person who identified himself as "Max Million". The two extracts revealed that you had a co-offender waiting nearby while you obtained the gold bullion from the Australian Bullion Company and further that, on the day prior to your arrest, you discussed with "Max Million" by way of text what your split of the proceeds should be texting, "I made at least $150K".

11 At the time of your arrest, you were adversely affected by alcohol and you were not interviewed until 18 April 2019. Whilst you admitted the transactions that you had engaged in, you told investigating police that you believed the money in your account to be an advance of credit made by the bank to you. Further, you told police that you had forwarded the gold, the watch and the USD to Sudan where that property could be realised at a much greater value than it could in Australia and that the proceeds of the watch, the gold and the money would be invested in businesses operated by members of your family in Sudan and further that your family had always operated businesses in Sudan.

12 The truth of the matter is that your family arrived in Australia with you and some of your siblings as refugees, with little more than the clothes on their backs.

13 Set out as an appendix to Exhibit A were a series of texts using "WhatsApp" with a person described as "Nigirian Plug Million". These texts cover a period from 10 September 2018 up to and including 4 March 2019. These communications were relied upon by the Crown as context to your offending to demonstrate in part your willingness to engage in conduct of the kind for which you fall to be sentenced.

14 At the time of your offending you were aged 21 years. You are presently aged 22 years and accordingly are a youthful offender. You were born in Sudan in the Nuba Mountains. During the plea, you were described as being of Nubian ethnicity and the area from which you come generally did not experience antipathy between its Muslim and Christian populations that other areas of Sudan did, despite this your family was forced to flee Sudan because of the ravages of war that raged in Sudan.

15 You came with your parents and some siblings to Australia in 2005 via a refugee camp in Egypt. You are an Australian citizen. You are the oldest of seven children, being six boys and a girl, your youngest sibling being seven years of age. You attended the Lalor Secondary College and completed Year 12. You went on to commence a degree in Commerce at Latrobe University and studied there for a period of two years before you deferred your' studies. I was informed that you decided to take up an apprenticeship as an electrician in part to earn income to support your family. However, you lasted but 18 months as an apprentice. For the period of six months prior to your arrest you did not work and were not studying.

16 At the time of your offending you were living with your family at Wollert. Your father is 57 years of age and works as a butcher and your mother is 48 years old, and at one time she operated a family day care business, however she no longer does so but works at a job the nature of which you are uncertain about.

17 Tendered as Exhibit E was a bundle of references from various members of the Nubian community in Victoria. It can be distilled from these character references that you were an active member of a soccer club connected with your community from the Sudan and after ceasing as a player you coached the Under 16 soccer team for a few years. You have assisted in fund raising, you attended meetings and involved yourself with interactive events for the community such as Nuba Day. You were described as a great leader. Before you were arrested, you were involved with a homework club that assisted primary school students with their homework and also organised friendly indoor soccer matches for them. Generally, your referees regarded you as being a young leader who was respected in your community and in the past had displayed honesty, integrity and kindness to others.

18 It is a tragedy that you have involved yourself in the instant offending as well as another act of dishonesty.

19 At the time of your plea, you had spent 334 days by way of pre‑sentence detention and it was submitted by your counsel that the appropriate sentencing disposition was a Community Correction Order without making any order in respect to your pre‑sentence detention.

20 Mr Polak, who appeared on your behalf, emphasised your youth, your achievements within your community, at school and university, as well as making much of the concession made by the Crown that you were not connected in any way to the sophisticated hacking operation on the construction company in Alice Springs. Further, Mr Polak submitted that your offending was of limited duration and unsophisticated because it was your bank account that was used as the clearing house for the funds stolen from the University and Aboriginal Health organisation and that, as he put it, it was inevitable that you would be caught.

21 Mr Polak further supported his submission that a Community Correction Order was the appropriate disposition because of your family support and ultimately that you have good prospects for rehabilitation which he expressed in the terms that you were "unlikely to reoffend". He submitted you were not a good vehicle for general deterrence. To my mind this last submission is erroneous because save for giving your youth appropriate weight in the exercise of my sentencing discretion there is nothing to suggest that you are not an appropriate vehicle for the application of general deterrence.

22 Tendered as Exhibit 1 on the plea was the report of Gina Cidoni, consultant psychologist, I have referred in my remarks so far to much of the contents of her report. You have been a regular user of the drug cannabis and whilst at secondary school suffered from anxiety, although this was treated by six sessions of psychological treatment and you are not prescribed any form of medication. Some psychological testing was conducted on you but to my mind it is of little assistance to me, save to say that you are of average intelligence. You performed at a low level in respect of some of the limited number of tests applied to you by Ms Cidoni. It must be noted that you passed VCE and gained entry to Latrobe University to study commerce, which you studied successfully until you decided to defer your' studies. Ms Cidoni opined that your intellect and memory function are intact. However, you demonstrate some mild sociopathic traits and presented with a depressed mood and anxiety. Ms Cidoni further opined that your drug and alcohol abuse is in enforced remission whilst you are in prison. However, her assessment indicated that you are still vulnerable to abuse of those substances.

23 While on remand you have been imprisoned at Ravenhall, the MRC and Barwon Prison. You spent 4 months at Ravenhall and while there worked in the kitchen. You have spent the last 5 months at Barwon prison where you are a billet. I was informed that your period at the MRC was spent in isolation. You have undertaken a number of courses while on remand including; food handling, IT, and Occupational Health and Safety.

24 The principles that apply to sentencing money laundering offences, are set out in R v Ly [2014] NSWCCA 78 at [86] and Kim v R and Fang V R [2016] VSCA 238 at [61]. As was noted in each of the authorities to which I have referred, the statutory scheme in respect of money laundering has a graduated series of offences with the gravity of the offending depending upon the value of the money or property concerned and the offender's state of mind in respect of it. The amount of money involved in this type of offending is a significant matter when arriving at an appropriate sentence and general deterrence generally is to be given significant weight.

25 The maximum penalty for this offence is 20 years' imprisonment and this indicates Parliament's attitude to the seriousness of this offence. By your plea, you acknowledge that at the time of receiving the funds into your bank account you believed those funds to be the proceeds of crime. You involved yourself in this scheme for gain. The amount of money is substantial. Your role was to realise in part the funds by purchasing items and cash of significant value which were capable of being moved on by others. Your offending, however, was limited to a few days and, as Mr Polak rightly submitted, the use of your own bank account made it inevitable that you would be apprehended and demonstrates a degree of naivety. Additionally, you are a youthful offender and the issue of rehabilitation looms large in the exercise of any sentencing discretion.

26 You pleaded guilty at the earliest opportunity and you are entitled to the benefits that flow to you from that plea, being that it is some evidence of your remorse and that it has utilitarian value. Your referees write that your offending conduct is out of character. However, the nature of your offending and your willingness to participate in it when combined with your other offending makes assessment of your prospects for rehabilitation difficult. Your youth must make your rehabilitation an important factor when arriving at an appropriate sentence in your case.

27 I was provided with a number of authorities by Ms Go, solicitor who appeared on behalf of the Director, but as was noted in Kim v R, it is difficult to identify any general sentencing practice in respect to Division 400 of the Code. I must apply the general sentencing principles set out in s16A of the Crimes Act 1914 (Cth) as well as those enunciated in the authorities to which I have already referred.

29 Taking into account the circumstances of your offending and its effects with your personal circumstances and antecedence and endeavouring to produce a sentence that reflects and promotes the purposes of sentencing in a manner appropriate to you and your offending, I sentence you to three years' imprisonment.

30 Your sentence is to commence on 8 March 2019, the day that you were arrested and taken into custody. You are to be released on a recognisance release order in the sum of $500 after having served 18 months' imprisonment.

31 Pursuant to s6AA of the Sentencing Act 1991, I declare that but for your plea of guilty, I would have sentenced you to five years' imprisonment with a

non-parole period of three years' imprisonment.

33 HIS HONOUR: Now, if it is convenient to you, can we deal with the matter of Kwkw?

34 MR POLAK: I think the documentation is with Your Honour.

36 MR POLAK: Just requiring a period of good behaviour which is normally I think the - the period is stated in the sentence. So I often get it wrong with Commonwealth sentencing.

37 HIS HONOUR: No, that is all right. Just pardon me for a moment.

38 I have hand-amended the document so as it reads in the following terms.

39 The court orders the release of the defendant under s20(1)(b) of the Crimes Act 1914 after serving 18 months of the term of imprisonment upon the defendant giving security by recognisance of $500 to comply with the following conditions; (a), the defendant is to be of good behaviour for a period of 18 months and this order has been issued because, (a), the defendant Alaeldin Ibrahim Kwkw was charged with the following federal offence; (I) dealing in the proceeds of crime $100,000 or more contrary to s400.4(1).

40 The court has sentenced the defendant to a term of three years' imprisonment and I have added the following words, 'Commencing on the 8th day of March 2019', to make it clear although that will appear within the court order.

41 The court has decided the defendant be released after serving 18 months of the sentence and then there is the document for the accused or rather the prisoner to sign.

42 Now, Mr Kwkw, will you please stand? I need to explain something to you.

44 HIS HONOUR: All right. You have been sentenced to a term of three years' imprisonment. I have ordered that you need to serve 18 months of that three years. That sentence commences or commenced from the date that you were arrested by the police and remanded in custody. So it is backdated to that date. So the 18 months commences to run from the 8th day of March 2019.

45 At the end of that 18 months, you will be released and the 18 months that is held in abeyance is effectively suspended and I have suspended it for a period of 18 months. If you are not of good behaviour in that 18 months, then you will be breached in respect to that and that 18 months' imprisonment can be ordered to be reinstated. Do you understand?

47 HIS HONOUR: Right. So when you get out, you have got 18 months swinging over your head for 18 months and if you breach that recognisance order in all likelihood, you will go in for that 18 months.

48 What will happen now and Mr Polak may wish to go to the dock to assist you is my associate will bring to you a document which sets out your acknowledgment of this order. Thank you very much.

50 HIS HONOUR: All right. Now, that is a copy of the recognisance release order, Mr Kwkw. Presently we have got an administrative difficulty in terms of completing the court order. There is no big drama about that. When my court order is finalised, it will be sent to your instructing solicitor, Mr Polak and to the Crown.

51 I want to thank you for your assistance in this respect. Would you remove the prisoner please?

53 HIS HONOUR: And I excuse counsel from the Bar table.