New South Wales District Court CITATION: R v Samuel BARRAZ [2008] NSWDC 93 HEARING DATE(S): 24 April 2008 EX TEMPORE JUDGMENT DATE : 24 April 2008 JURISDICTION: Criminal JUDGMENT OF: Berman SC DCJ DECISION: See paragraphs [18], [19], [20], [21] & [22] CATCHWORDS: CRIMINAL LAW - Sentence - Forms 1 - Proceeds of crime - False instrument LEGISLATION CITED: Crimes (Sentencing Procedure) Act 1999 CASES CITED: R v Thomson & Houlton (2000) 49 NSWLR 383 PARTIES: The Crown Sanuel Barraz FILE NUMBER(S): DC 2008/11/0008 SOLICITORS: NSW DPP Fay Rose Legal SENTENCE 1 HIS HONOUR: Samuel Barraz appears for sentence today. He pleaded guilty today to five offences on an indictment but they were in substitution for a number of matters to which he had earlier pleaded guilty at the Local Court. The pleas of guilty were entered at the earliest opportunity and so, consistent with the decision in R v Thomson & Houlton (2000) 49 NSWLR 383, in order to reflect the utilitarian benefit of the pleas, the sentences I will announce at the end of these remarks will be twenty five per cent less than they would otherwise have been. 2 Mr Barraz is to be sentenced for three offences of engaging in transactions with the proceeds of crime and two offences of using copies of false instrument in order to persuade another person to accept it as a copy of a genuine instrument, in order that he could obtain some money. 3 These five offences are far from the full extent of the offender's criminality. Attached to each of the offences of engaging in transactions with the proceeds of crime are Form 1 matters. On each of the Form 1 matters there are either fourteen or fifteen further related offences. The total criminality engaged in by the offender extended over a period of about a year and ultimately led to him obtaining a significant sum of money, namely $153,000 through the use of fraudulent loan applications. 4 The offender came up with the scheme of obtaining loans by making on line loan applications to various credit unions and other finance institutions. He would pretend to them that he was someone else and that the loan was for the purpose of purchasing a motor vehicle. In order to persuade the financial institution to lend the money, a whole series of fraudulent activities had to be engaged in. False documents had to be prepared, false identities had to be procured and these activities all involved criminal behaviour on the part of the offender. Thus, although there were five separate occasions on which loans were falsely obtained, there were a total of something like forty nine separate offences committed by the offender over the year long period. 5 It is not necessary in these remarks on sentence, which may ultimately be available to anyone with access to the internet, to outline specifically the modus operandi followed by the offender. It is sufficient to say that there was ongoing, regular criminality involved. In fact, the offender appears to have put a great deal of effort into his fraudulent activities. This was not a case where the offender simply, on one occasion, or even five occasions, decided to do something which was a crime. The offender seems to have been almost fully occupied in his dishonest conduct. Had he been fully occupied in a lawful occupation, he would have earned some money as well. The reason he chose to commit crimes rather than working lawfully, was simply because the rewards from committing crimes were greater than he could have obtained through legitimate work. 6 The offender was born in Brazil. His parents separated before he was born and he has had very little contact with his biological father. His mother needed to work to support herself and him and so he was cared for by his grandmother. At the age of six, his grandmother returned him to his mother but she in turn then placed him into a boarding school. The offender had a childhood which was characterised, therefore, by a lack of maternal contact. When he did return to live with his mother, she had, by that stage, remarried and the relationship that the offender had with his stepfather was a difficult one. I mention these matters, not simply to suggest that the offender is deserving of sympathy but because they are relevant to the sentence I should impose upon the offender in the following way. 7 The offender, after travelling overseas, met an Australian woman. They therefore began to live in this country but separated. Another relationship ended in 2002 and it is suggested by a psychologist, who interviewed the offender, that his early childhood experiences may have led to him taking the breakdown of his relationship in 2002 in a particularly hard way. It seems that after that relationship breakdown, the offender turned to drugs, alcohol and gambling, each of which he engaged in to excess. It was in those circumstances that he committed these offences. The money, I am told, was simply spent on those activities, although some of it seems to have been used to pay his co-offenders who cannot be located. 8 One very significant matter concerns the offender's criminal history. At the time of these offences he was actually on bonds, and I emphasise the plural, for similar matters of fraud. That is a significantly aggravating feature of these present offences and one which will be reflected in the sentence that I will shortly announce. The offender was dealt with, apparently quite leniently, for those earlier fraudulent matters, and he has abused the leniency and the trust which the Court placed in him by his ongoing criminality for which I must sentence him. 9 These are very serious offences. The maximum penalty for the three offences of dealing with the proceeds of crime is fifteen years imprisonment which demonstrates at once the seriousness with which the legislature says these crimes should be treated. Many people legitimately need loans to buy cars. Finance companies are legitimately able to offer such loans. The offender has taken advantage of his skills and the procedures followed by financial institutions, to obtain a significant sum of money from them. It must be remembered too that the $153,000 which he obtained was tax free. He benefited significantly from his criminal activities. 10 Another matter I have borne in mind is that the offender got others involved in his criminality. This is also an aggravating factor. It is not a case where the offender, only himself, committed crimes, but he persuaded others to do so in order to assist him. 11 Some of the aggravating matters listed in s 21A of the Crimes (Sentencing Procedure) Act, (including some which Mr Salama conceded were matters of aggravation I should take into account) are either elements of the present offences or such that they would be necessarily involved in all offences of this nature. I will not regard them as aggravating factors which have increased the sentence to be imposed in the present case. For example, in s 21A is an aggravating circumstance that offences are committed for financial gain. That would be almost inevitable wherever a person committed a crime of knowingly dealing with the proceeds of crime or perhaps using a copy of a false instrument and so I will not double count that feature. 12 It is said that the offender was of good character at the time he committed these offences. That of course is not the case, as I mentioned, he had committed earlier offences of fraud, there are other offences on his criminal history as well. It may be that before the breakup of his relationship in 2002, the offender was of good character and references indeed tend to suggest that that is the case. But by the time he committed these offences, certainly by the time he committed the last of them, he was far from a person of good character. 13 Mr Salama suggests that one of the mitigating features present in this case is that the offender has assisted the authorities in terms of s 23A of the Crimes (Sentencing Procedure) Act. It was said that he nominated the others involved in his crimes. It was said, without challenge from Mr Salama, by the Crown that the police already knew the information that was provided. I will not discount the sentence I would otherwise impose because of s 23A factor. 14 It was also said that the offender co-operated with police on his arrest and therefore there should be a discount under s 22A of the Crimes (Sentencing Procedure) Act. As I see 22A, that applies where there has been a trial, which has not been the case here. In any case, the offender's co-operation seems to have simply been that he did not stand in the way of police doing what they were legitimately entitled to do, namely search his premises. I will not discount the sentence I would otherwise impose because of s 22A. 15 It is also said that the offender has good prospects of rehabilitation and is unlikely to re-offend. I cannot make that finding at all. The onus is on the offender to establish that on the balance of probabilities and he has failed to do so. Even the offender himself recognises that he will need some assistance upon his release from custody to deal with such things as his drug use, his alcohol consumption and also to enable him to re-establish himself as a law abiding member of society. 16 These are offences where there needs to be a substantial component of general deterrence. The finance companies who accept on line applications for loans and accept the accuracy of documents, faxed or otherwise forwarded to them, rely on the honesty of those making the applications for loans. It is, it seems, comparatively easy to do what the offender has done and so there must be a substantial component for general deterrence in order to persuade others who might be temped to take the easy path, who might be temped to use their endeavours in criminal activity, rather than getting a decent lawful job, that they should not do so because of the penalties which are likely to be imposed upon them when they are detected. The fact that the offender was on a bond at the time also suggests there needs to be a substantial component of personal deterrence. He needs to be made fully aware that when he gets into trouble in the future, when he finds himself depressed, when he finds himself turning to drugs and alcohol and gambling and, that when his money runs out, he should not use other people's money illegally. Because ultimately what happened in this case was that the offender, after he had spent all his own money on gambling, drugs and alcohol, had a choice. He could have chosen to recognise that he could not spend any more money on gambling, drugs or alcohol, or he could have, as he did in this case, fund his addictions through other people's moneys. It is that element of personal choice which requires significant punishment in the present case. 17 What I have chosen to do is to impose partially accumulative sentences on each of the more serious matters of knowingly dealing with proceeds of crime. It would be inappropriate given the length of time over which the various offences were committed, to impose wholly concurrent sentences. However, the principle of totality is such that the sentences are only partially accumulated so that the effective overall sentence reflects the effective overall criminality. 18 On count 1 on the indictment the offender is sentenced to a fixed term of imprisonment of three years to date from 18 June 2007. That sentence is a fixed term because of other sentences I will impose. 19 On count 2 on the indictment the offender is sentenced to imprisonment to date from 18 June 2008. That will be a non-parole period of two years with a head sentence of three years. 20 On count 4 on the indictment the offender is sentenced to imprisonment to date from 18 June 2009. That will consist of a non-parole period of one year with a head sentence of three years. 21 On counts 3 and 5 on the indictment the offender is sentenced to imprisonment, I set a fixed term of imprisonment, for two years to date from 18 June 2007. 22 The effective overall sentence is thus one of five years consisting of a non-parole period of three years and the balance of term of two years. The offender will be eligible to be released to parole on 17 June 2010. As will be obvious, I have found special circumstances. They are to be found in the report of Emma Collins, the psychologist, suggesting that the offender would benefit from an extended period of supervision on parole. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. 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