Mohammed Saderuddin Syed
Representation: Counsel:
Crown: K McKenzie
Defence: G Scragg
Source
Original judgment source is linked above.
Catchwords
Mohammed Saderuddin Syed
Representation: Counsel:
Crown: K McKenzie
Defence: G Scragg
Judgment (2 paragraphs)
[1]
JUDGMENT
Mohammed Syed, the offender, commenced employment as an assistant accountant at the victim company, Crosby Textor Research Strategies Pty Ltd ['CTRSR'] in 2008. When the offender commenced his employment, the company was classed as a small company with no more than a dozen employees. The offender had bachelor's degrees in both accounting and IT. The company, which was a subsidiary of the CT Group, a company registered in England, expanded over the years, and had an international presence. Staff were treated like family.
The following year, in 2009, the offender was promoted to the position of Financial Controller. With this position, the offender was responsible for the oversight of all financial aspects of the company which included banking, maintaining accounting software and he was an authorised signatory on bank accounts.
As well as securing a promotion, the offender's salary increased periodically, and this was supplemented by the payment of bonuses. His salary increased from $60,000 in 2008 to $185,000 in 2014. The quantum of bonuses is not disclosed.
Three years after his initial promotion to Financial Controller, the offender commenced defrauding from the company. He continued this conduct for six years. He did not voluntarily desist. He stopped when his employment ceased. His conduct was only discovered when new staff became involved in the financial aspects of the company.
During his employment the offender enhanced his academic qualifications and obtained an MBA.
In February 2018, he was promoted to the Financial Controller of the parent company, the CT Group. He continued to steal.
When he was to be made redundant, the company paid for the offender to obtain further qualifications from Harvard University.
When financial anomalies were discovered, on 18 January 2019 the offender admitted to David Bell, the Managing Director of a subsidiary company, that he had been 'lenient' about paying his expense claims and that he had made a 'mistake'. He admitted his conduct was wrong. He said it only involved an estimated $50,000. He agreed to Mr Bell's suggestion that he repay this money from his leave payout.
After an audit, it was discovered that the 'mistake' had not been limited to the amount volunteered and that it had occurred over the years, commencing in 2012. What had occurred was fraud. The offender, by his pleas of guilty, has accepted that for each calendar year from 2012 to 2018 he deceived the company by falsely representing he was entitled to payments and thereby he dishonestly obtained a financial advantage. The offence provision entails deception, which entails an intention to mislead and an acceptance that the offender knew his conduct was dishonest. Given his financial experience, it would be difficult to determine the offender would not have known that he was committing fraud each time he processed knowingly false claims.
The offences are contrary to s.192E(1)(b) Crimes Act which has a maximum penalty of 10 years imprisonment. The pleas were entered in this Court ahead of the listed date for trial, and under the statutory regime warrant a reduction of 10% to sentence. I take into account that the entering of the pleas had the utilitarian benefit of saving considerable costs to the community in avoiding a trial that may have taken up to 12 weeks.
There are six counts for sentence. The facts stipulate these counts are 'representative counts'. That supports an acceptance there was further criminality and that it cannot be asserted the conduct alleged was isolated. There is no other detail of when or how much was involved. This deliberate vagueness serves to add very little to the facts.
Each count for sentence, other than count 6, is supported by more than a single transaction and as such a series of discrete acts of fraud. I take into account not just the quantum of individual transactions and the overall sum for each count, but also the number of transactions in each count. Those details include:
Count 1: 3 transactions and a total of $19,200
Count 2: 3 transactions and a total of $27,800
Count 3: 3 transactions and a total of $28,800
Count 4: 5 transactions and a total of $32,282.50
Count 5: 4 transactions and a total of $28,800
Count 6: undisclosed number of transactions and a total of $45,610
I also take into account that each individual offence occurred throughout a calendar year.
The final count, in the facts, refers to the amount being 'at least' this amount. This amount correlated with the amount owed to the offender to pay out his leave entitlements upon ceasing employment. The offender agreed to the suggestion his leave entitlements should be used to reimburse the company. Prior to sentence there was no further offer to reimburse the outstanding amount of $136,882.50.
The offender utilised different accounting tricks to hide the fraud. Some transactions were purported to be payments to named staff [count 1, two transactions; count 4, one transaction]. The others were purported to be 'incentives' payments to group participants. The offender made many of the transactions as part of 'batch' payments. He employed a not dissimilar process on each occasion. There was evidently some planning and no particular transaction supporting an offence speaks of impulsivity.
The offender used his access to financial software and accounts to perpetrate the ongoing fraud. He utilised his skill and took advantage of his trusted position. That the offender was trusted is implicit. He was the Financial Controller. His fraud was not detected whilst he remained in control of financial affairs. The payments were made into personal bank accounts held in the offender's name. The misrepresentation of payments was sufficiently sophisticated to remain undetected until external scrutiny.
The offender took advantage of the accounting systems that were in place, that he controlled, to commit the offending. He took advantage that he was trusted by the company and key staff. He repetitively used procedures that proved successful.
All of the circumstances of the fraud are relevant. However, the most significant in this case is the position held by the offender. He used his position as Financial Controller to exploit the victim company. This was an important position as reflected from the title itself, his remuneration, the details of his role as disclosed in the facts, including his access to various aspects of the finances of the company. He held relevant qualifications to perform his role. He held a position of authority. There was considerable trust reposed in him by the company. He betrayed those who trusted him consistently over a six-year period. His offending represents a high level of breach of trust.
Even when his fraud was first detected, he failed to accept his involvement. After he was first confronted, he chose to write an email on 23 January 2019 to Mr Bell. He mentioned his wife's ill-health, the absence of a pay rise for four years and indicated he regretted his inappropriate expense claims. The following day when he met with Mr Bell he indicated he had no thought or target for the amount taken. It is evident from his admitted conduct that he did more than process 'inappropriate' expense claims.
The offender had no obvious need for the funds. He was well-recompensed by way of salary and bonuses. He was in a marriage where his wife also contributed financially. He had no gambling or substance abuse issues. He had no pre-existing mental health impairment. He did not advance any purpose for the funds. The most he advanced was he felt aggrieved by his failure to secure a pay-rise.
Count 6 is informed by the reparation payment.
In addressing objective seriousness, Counsel for the offender suggested each offence, informed by the low-level of money involved and that the money involved in count 6 had been repaid, fell 'below the mid-range'. The Crown identified the features said to inform the seriousness and submitted that the finding should be that each offence fell above the mid-range. I note the Crown sensibly abandoned reliance on the feature of 'financial gain'. I determine each offence to entail a serious example of the offence provision, despite the relatively limited quantum involved. There are differences informed by quantum, number of transactions and repayment that will reflect variations to indicative sentences.
The offender is a person with no prior convictions. He arrived in Australia in 2000 on a skilled migrant visa and it follows he must have been of good character in India to secure the visa.
The offender is now aged 49. He commenced defrauding the company in 2012 at a time he was aged 37. His good character definitively ceased at that time. In reality, it was compromised at an earlier time. The offender was bankrupt between 2007 and 2010. He commenced employment with the company in 2008 and signed an employment contract conditional upon a requirement of disclosure if he had been the subject of an act of bankruptcy. It was accepted he had not done so. It was suggested in submissions, absent evidence, that he had informed his recruitment agency. That would not fulfill the condition of the appointment. As a professional, the offender would have appreciated the significance of disclosure and understood the clear language in the document. Although this reflects poorly on the offender, it is of limited significance given the matters for sentence and the undoubted loss of good character only a few years later.
I accept that the offender used his position, one that he would only have retained whilst of good character, to commit the offences. I accept that good character may be given less weight where it is exploited to offend. Although of lesser weight, the fact that the offender was without convictions, and generally of good character, until the age of 37, is afforded appropriate weight.
The offender is a person that has materially contributed to the community. He is supported by a plethora of references from persons who attest to his voluntary work with various groups as well as his personal support provided to those in need. Those who have known him socially and through voluntary work indicate what they observe to be positive characteristics. Each has written that the offending presents as uncharacteristic. I acknowledge the compelling evidence of the contribution made by the offender to support others.
I accept that the offender presents as living a double life. Those who support him were mostly engaged with him during the period he offended. None detected anything untoward. This is entirely consistent with the sentiments conveyed by the authors of the victim impact statements. The three authors all reflect how appreciated and trusted the offender was within the company, and personally. They were similarly hoodwinked about the overall nature of the offender.
Two victim impact statements were prepared. One was authored by Mr Bell and the other was co-authored by the founders and major shareholders of the victim company, Sir Lynton Crosby AO and Mark Textor. There is no specific legislative provision for Victim Impact Statements for offences of fraud. Counsel for the offender objected to a jointly authored document, and also to more than a single document and as a fall-back position objected to parts. The written submissions did not address the versions sought to be tendered, each of which was substantially redacted by the Crown.
As indicated during oral submissions I determined that the Court could, and should, receive statements that document the harm occasioned: R v Webb [1971] VR 147, Siganto v The Queen (1998) 194 CLR 656, Porter v R [2008] NSWCCA 145. That harm may be perceived differently by different persons involved in the victim company. Harm may be addressed in more than one document. The Court should have sufficient evidence available to realistically assess the harm: R v P (1992) 64 A Crim R 381.
Objection was maintained to portions that required resolution prior to each being tendered and read. I ruled on those objections. I have received other portions not otherwise addressed beyond the noted objections. I admit those portions. The Crown acknowledged sentencing principles, and specifically stated there was no reliance on any aspect that may be inconsistent with the agreed facts.
One of the areas objected to was the detail of the authors' backgrounds. That is relevant, not to improperly impress, but to comprehend their backgrounds and particularly financial backgrounds, when they describe the corporate and personal harm.
Mr Bell commenced as the Managing Director in 2018. He came with experience as a Commissioned Officer in the military, high level government positions and extensive corporate experience. Even with this varied high-level experience he was adversely impacted, and observed staff to be similarly impacted, by the breach of trust. In addition to the financial loss, there was reputational damage sustained to the company. Mr Bell remarked on the impact to the company that still resonates five years after being detected.
Sir Lynton read the co-authored report. Mr Textor was present in Court. Both possessed high level experience prior to founding the company. Both attest to the detriment suffered personally and to the company based on the 'massive' breach of trust. Both reflect on how appreciated the offender was by the company and by staff. The company sustained financial loss in conducting a forensic audit. The delay in resolution of over 5 years has meant there has been continued stress and an emotional impact. Both authors wrote of how they nurtured and supported the offender and his family, done as part of their perception that employees were treated like family. When his position was made redundant, they paid for his attendance at Harvard Business School to boost his qualifications and experience to assist him to secure employment. The conclusion of the criminal proceedings will not mark the end of court proceedings. The civil proceedings can now be resurrected and will involve further time and money. The harm occasioned is not merely reflected in the words. I observed Sir Lynton to become palpably upset as he read the statement.
Counsel for the offender specifically submitted the Court should be careful to not allow the content to interfere with the proper exercise of the sentencing discretion. I have exercised this caution. I have recognised the admissible material addressing the harm to the company and those who worked within and formed part of the company.
There are other aspects addressed in the statement. These concern expressions of frustration with the judicial process, the investigation and the conduct of the ODPP. These observations are based on specific occurrences. As noted in the defence submissions, the matter was negotiated as a plea to the current charges from what was a 396 count indictment averring a loss of $2,952,016.20. The resolution is likely to cause consternation to those associated with the victim company. However, these matters are not to be sheeted home to the offender.
As each document was read, I did not observe either to have any impact on the offender. He remained unemotional.
I am assisted by reports from professionals and personal references.
The author of the Sentencing Assessment Report refers to the offender cohabiting in the family home although separated from his wife. They remain married. The offender retains optimism the marriage will survive. He has two adult children. It is stated the offender is unemployed. There is no indication about what financial support is available to the offender. The author assessed the offender as falling in the low risk of reoffending. A similar assessment is made by the two psychologists who provided reports.
I accept this assessment. Other than the frauds, which extended over a number of years, he is essentially pro-social. He maintains the support of his wife and children. Members of the community from disparate groups, despite knowing of his fraud, continue to voice continued support. Any employment he obtains is unlikely to involve use of his academic and professional qualifications or to involve him being placed in control of money. The offender is unlikely to be provided with an opportunity to commit any similar offending. It follows personal deterrence has a very limited role to play.
This does not equate with a positive finding of rehabilitation. That finding is more informed by reflecting upon insight and remorse.
Pleas of guilty may, but do not necessarily, denote remorse. Whether there is genuine remorse is in dispute. Counsel for the offender sought to rely upon the immediate admissions when the fraud was discovered, the offender's letter containing expressions of remorse and the numerous expressions of remorse conveyed to authors of documents tendered in Exhibits 1 and 2. The Crown indicated these expressed comments to not reflect genuine remorse.
In the Sentencing Assessment Report, it is noted the offender voiced regret by stating '[he] did a stupid thing'. The author opined the offender showed little insight into his offending and could not provide a reason for the offending.
The offender wrote to the Court. This was his opportunity to consider what he wanted to convey to the Court. He wrote of apologising to the victim company and the community. He accepted he had breached the trust of Sir Lynton whom he described as his mentor and friend. He apologised and wrote of his embarrassment, guilt and shame. He wrote in more detail when he addressed the severe impact to his family and to himself. He asked to remain in the community to continue to make amends for his actions. What is perplexing is his description that the period since being discovered has been 'very confusing' to him. There is nothing about his offending, or his letter, that reflects what could possibly have confused him.
The offender commenced treatment with a psychologist, Amina Ahmed, after his conduct was detected. It is documented the offender had been hospitalised for three days in April 2019 after his arrest. He presented for treatment with Ms Ahmed exhibiting anxiety and depression. He reported two instances of self-harm and suicidal ideation. He had regular sessions from April 2019 until January 2021. He then had two sessions recent to sentence proceedings. When he presented more recently the focus was on his concern about sentence. His mental health is described as fragile, although I observe there was no Mental Health Care Plan and no treatment other than medication for over three years. Ms Ahmed listed the offender expressed deep regret although what was said is not known.
John Machlin, Clinical Psychologist, provided a report based on a consultation in September 2024. The offender explained the offending to involve having 'lost track on keeping an exact dollar value' and that he took a 'lenient' approach to reimbursing himself for expenses. He described it as a 'very bad practice of accounting'. He added that work and home pressures contributed to 'his drop in professional standards'. Based on these expressions, Mr Machlin concluded his 'impression' was of there being contrition and an acceptance of responsibility, and of explaining his mindset rather than justifying his behaviour. Mr Machlin further addressed the insight in his passage on conclusions. This is a restatement of reimbursing himself 'too much rather than too little' and referring to a 'drop in standards'. I do not accept the descriptions of the offending reflect offending which objectively entailed sustained and intentional fraudulent conduct. There was not a drop in professional standards. There was fraud committed more than once each year for six years. There is no acceptance of responsibility or remorse conveyed in what was expressed. Later in the report it is noted he expressed equal guilt over the breach of trust and the trouble he caused as he did about the impact to his family. The history provided formed the basis of the diagnosis of a major depressive disorder, comorbid with anxiety and panic. His condition is said to be reactive to his post-discovery circumstances and his prognosis is favourable contingent on resolution of identifiable stressors. I infer the identifiable stressors are the proceedings on sentence and his concern of receiving a custodial sentence.
Mr Machlin referred to being told the offender consulted a psychiatrist, Dr Choudhary, in 2019. The details are scant. Dr Choudhary has retired and there is no report. It is said this coincided with Ms Ahmed's treatment.
A family member of the offender, a solicitor, wrote of the offender's support and attributes. She documented the impact the offender's crime had upon her. She stated the offender 'could not be any more sorry', and that she knew he regretted his actions with all of his heart.
The offender's wife, Rabia Parveen, wrote of the impact to her from the offending and how it diminished their lifestyle and comfort. She works in a professional position and she has provided financial support to the offender. Personal engagements including illnesses and funerals have been missed.
Ten other persons have provided references and letters of support. These are all authored by friends, family or those who have observed the offender's contribution to the community. Eight expressly reference the offender expressing remorse or regret for his conduct. One other mentioned the offender taking responsibility. None clearly indicate what was said. This is of some significance given authors of professional reports address what is said to be regret or remorse, and in their terms, do not support this description. Some document emotional and financial hardship experienced by the family.
Despite the numerous reported expressions of remorse, and that expressed directly, I am not satisfied there has been genuine remorse. Where an expression of remorse is informed by an account, the account does not convey remorse for the actual offending that the offender is to be sentenced upon.
I accept that as a direct consequence of the offending there has been hardship to the offender and his family. The offender was being made redundant prior to the discovery of the offending. He did not lose employment as a consequence of his fraud. The tendered material indicates he did find some employment in 2019 and 2020 although there are no details. Arising out of supplementary material, there is the additional employment in 2022 to 2024. There has been a loss of income to the family and a diminution to the quality of life experienced when the offender was salaried and benefitting from his fraud. There is the obvious embarrassment occasioned from the offender's conduct being disclosed. However, there is still considerable interaction in the community and the offender retains the support of many. Although I accept this adverse impact, it is not one that warrants amelioration to sentence.
The proceedings on sentence were conducted on 18 October 2024 and listed for sentence on 25 October 2024. On 24 October 2024 the Crown sought to reopen the evidence. This was not opposed. The Crown became aware of information suggesting the offender had in fact been employed beyond that admitted to report writers or advanced in his letter to the Court. The offender obtained work as a contractor for an accountancy firm, holding himself out as a CPA and a Forensic Audit Specialist. The offender did not disclose the index offending or his status as a person charged with fraud. The firm advertised his services by incongruously stating "Don't wait for fraud to strike". The offender appeared on the firm's website as "Syed Mohammed'. The offender invoiced the company for three referrals and received other referrals not invoiced by the company. The result of these direct referrals is not known. This arrangement continued between 2022 to 2024 and only ceased when the firm became aware of the pending charges.
I do not embark upon an attempt to assess income derived from this additional employment. On the limited information it cannot materially inform his financial position. It reflects the offender's lack of veracity in communicating with those employed to advance his hearsay accounts. He brazenly lied to present a more powerful subjective case. It reinforces my earlier conclusions and observations on insight, remorse, rehabilitation and his ability to 'hoodwink' people. It does not cause me to rethink any of my earlier findings or my previously determined appropriate sentence.
I accept the delay of five years would have been arduous for all concerned. There is a correlation between the major depressive disorder and the proceedings. This delay has prevented the offender receiving sentence and progressing with resolving his mental health. I propose to take this delay into account when determining sentence.
I have addressed the partial repayment of stolen monies voluntarily made by the offender prior to his arrest. This amounts to about a quarter of the overall sum. It was submitted on behalf of the offender that he had no funds accessible to him to make any further payment. That is, there was no capacity to repay. There are funds that were frozen as a consequence of civil action embarked upon by the victim company. Those civil proceedings have effectively been stayed pending finalisation of this criminal matter. It was submitted that the offender provided instructions that he would not oppose the release of the outstanding amount from what is available. There is no formal document signing a release or providing any enforceability other than an indication through Counsel. I give it no heed. The Crown provided the Notice of Motion in which it sought an order for compensation under the Victims Rights and Support Act, 2013. Counsel for the offender indicated the order was not opposed. The making of the order arises after conviction. The facts of this matter acknowledge the loss and given the terms of the legislation it is perceived as inevitable that the order would be made, whether there was consent or otherwise. I approach the significance of this inevitable order to be that the victim will recoup the funds lost due to the six counts for sentence. I do not regard it as supporting a component of remorse.
I also appreciate the offender lost his redundancy payment as a consequence of the offending. According to the deed signed on 24 October 2018 and tendered as part of Exhibit 2, this amounted to 6 months' salary in an amount of $110,120. He lost the entitlement to receive it given the offending. This is a legislative outcome.
General deterrence and retribution are import considerations in planned and sustained offences involving employee dishonesty. That the victim is pleaded as a corporate entity does not render this type of offence victimless. Not all offences of fraud involve a significant breach of trust. These offences do. It is often noted that there exists a difficulty in detecting and successfully prosecuting white-collar crime and for this reason general deterrence is important. The Crown relied upon the remarks of McCallum J in R v Curtis [no 3] [2016] NSWSC 866, wherein she stated at [51]:
General deterrence is another matter. The efficacy of punishment as a deterrent to others has been doubted in some contexts; to a degree, I share those doubts. In my view, however, punishment by a sentence of imprisonment has real bite as a deterrent to others in the case of white-collar crime. White-collar crime is a field in which, perhaps more than any other, offending is often a choice freely made by well-educated people from privileged backgrounds, prompted by greed rather than the more pernicious influences of poverty, mental illness or addiction that grip other communities. The threat of being sent to gaol, provided it is perceived as a real threat and not one judges will hesitate to enforce, is likely to operate as a powerful deterrent to men and women of business.
It was accepted on behalf of the offender that the s.5 threshold is passed. This was an appropriate concession. The offender sought the imposition of an ICO as an appropriate sentence. Detailed submissions were provided as to how the Court was required to consider the question of the imposition of an ICO. The Crown sought a sentence of full-time imprisonment. I may only impose a sentence of imprisonment if no other sentence is appropriate.
Given the number of offences for sentence, I propose to proceed with imposing an aggregate sentence. Consideration of an ICO only arises if no indicative sentence exceeds 2 years imprisonment and the aggregate sentence does not exceed 3 years imprisonment.
I am required not only to determine appropriate individual, or indicative, sentences but to determine a proportionate sentence taking into account the overall offending. No one sentence could encapsulate all the offending. Each offence, although similar in nature, contains additional serious offending. Some accumulation must apply in determining sentence.
The Crown provided a number of authorities in support of sentencing principles and also comparative cases. In so doing the Crown Prosecutor acknowledged the limited utility of cases given the myriad of objective and subjective circumstances that apply particularly in fraud cases. Counsel for the offender referred to various cases referred to involved criminality far greater than the index offending.
Hughes v R [2021] NSWCCA 238 involved a practice manager at a medical centre obtaining a similar amount to the index offender in 329 separate transactions over a period of six years. There was a single charge. After receiving a 25% discount the sentence imposed was 2 years and 6 months with a non-parole period of 18 months. I observe the appeal judgment, despite the plea, involved an appeal against conviction and there was no appeal against sentence. I am mindful of the large number of separate fraudulent occasions over the six-year period. Evidently each was of far more limited amounts. I consider the breach of trust involved to be far less than that of the index offender who held formal qualifications in accounting and performed the role of Finance Controller.
Davies v The Queen (1996) 88 A Crim R 226, akin to the index case involved an accountant. He was sentenced after trial on 18 separate counts to a sentence of 6 years with a non-parole period of 4 years. The offences occurred over a 12-year period. I consider the description of that offender as apt to the index offender- 'respected, greedy and unscrupulous'. The overall quantum was more than double the index offending and there had been limited repayment. In distinguishing this case, there has been a plea, the victim was not vulnerable and the offending involved less money.
The Crown also relied upon McLaren v R [2021] NSWCCA 12, wherein the cases of Siwek v R [2017] NSWCCA 178, Johnston v R [2017] NSWCCA 53, Gaffney v R [2009] NSWCCA 160 and Whyte v R [2019] NSWCCA 218, amongst others, were considered. The first three were sentences after pleas of guilty. Each case involved far greater money. Johnston involved an accountant. Siwek and Johnston involved offenders with gambling addictions. None involved offending for as long as the index offender. Each offender received a higher sentence.
Kareem v R [2022] NSWCCA 188, also involved an accountant who used his professional skills to implement his offending. He was not defrauding his employer and therefore the breach of trust did not operate. I note the sentences were imposed after pleas of guilty.
Ms Ahmed and Mr Machlin both opine the offender's mental health would likely deteriorate in custody, and that custody would be more onerous given his depression. This is said to justify a finding of special circumstances. Also relied upon is this being the offender's first time in custody. I accede to these submissions and propose to vary the statutory ratio to reflect these considerations.
The offender is convicted of each count.
I propose to impose an aggregate sentence. I nominate the following indicative sentences, each rounded down slightly to accommodate the reduction of 10% to reflect the pleas of guilty:
Count 1: 2 years and 3 months imprisonment
Count 2: 2 years and 3 months imprisonment
Count 3: 2 years and 3 months imprisonment
Count 4: 2 years and 8 months imprisonment
Count 5: 2 years and 5 months imprisonment
Count 6: 2 years imprisonment
The sentence imposed is one of 4 years and 9 months imprisonment with a non-parole period of 2 years and 10 months to date from today. Eligibility for release to parole arises on 24 August 2027. This is a ratio of 59% to give effect to the finding of special circumstances. No lesser sentence is warranted.
[2]
Amendments
25 October 2024 - Crown initial changed
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Decision last updated: 25 October 2024