R v Magribi [2015] NSWDC 264

District Court New South Wales

Medium Neutral Citation: R v Magribi [2015] NSWDC 264 Hearing dates: 17 July 2015 Date of orders: 17 July 2015 Decision date: 17 July 2015 Jurisdiction: Criminal Before: Berman SC DCJ Decision: Impose an aggregate sentence of imprisonment consisting of a non-parole period of 15 months and a head sentence of 30 months Catchwords: CRIMINAL LAW – Sentence - Form 1 - Using a false document to obtain a financial advantage - Recklessly dealing with the proceeds of crime - Offender on bail at time of committing offence Category: Sentence Parties: The Crown Ahmed Magribi Representation: Counsel:

Solicitors: The Director of Public Prosecutions File Number(s): 2014/300448

SENTENCE 1. HIS HONOUR: Many people in this community undergo financial hardship from time to time. Fortunately, very few of them resort to criminal behaviour in order to obtain money in an effort to overcome their financial hardship. The offender is one of those few people who responded to financial difficulty by committing crimes. 2. He committed a break, enter and steal for which he was sentenced and received a small penalty in the Local Court but then he got involved in drug supply. He was detected by the police as a drug supplier, charged and granted bail. Unfortunately, the way he carried out his drug supply business was to obtain drugs on credit, and by the time of his arrest he had accumulated a substantial debt. The people to whom he owed money had threatened him and so when they put a proposition to him that he could work off his debt and get paid $5000 by doing something that was clearly illegal, he decided that it was an appropriate way for him to achieve what he wanted by committing even more criminal offences. 3. The drug supply matter is being dealt with in the Local Court. I have been told that the Magistrate has referred Mr Magribi for assessment as to his suitability to serve the sentence the Magistrate is considering imposing by means of an intensive corrections order. I have ignored that circumstance in coming to the appropriate sentence to be imposed on Mr Magribi for the conduct now being dealt with in the District Court. 4. That conduct is this; having had a proposition put to him in the term I have described, he was given a ticket to fly to South Australia. He did so on 9 October last year. He then went to a branch of the St George Bank and handed over a document known as a third party authorisation form. This falsely purported to be signed by a man named Narus Attalla. The effect of the form was to link the offender's bank account to the St George account of Mr Attalla. Having done so, the offender left the bank. The conduct I have described thus far is an offence of using a false document to obtain a financial advantage. 5. This was the most important step in the criminal conduct which was designed to get money out of Mr Attalla's bank account, in effect to steal it. On that same day, $91,000 was transferred via online banking from Mr Attalla's bank account to the offender's bank account. This put the sum of $91,000 at the offender's disposal. Shortly before midday, he went to the Light Gardens branch of the St George bank and transferred $45,000 from his account to the account of a Hyunsook Kim. This is an offence of recklessly dealing with the proceeds of crime. 6. He then withdrew $15,000 in cash and left the bank. This is another offence of recklessly dealing with the proceeds of crime. 7. He then went to an ATM and withdrew $500 in cash. Shortly afterwards there was another transfer via online banking from Mr Attalla's account to the offender's bank account which put more money at the disposal of the offender. He then went to the St George bank branch at Edwardstown in South Australia and withdrew a further sum of money in cash, this time $10,000. 8. Shortly afterwards he went to yet another St George bank branch and transferred $40,500 from his account to the account of a Jason Galea. That is another offence of recklessly dealing with the proceeds of crime. He then took out another $15,000 in cash and left that branch. Once more there was another transfer via online banking from the account of Mr Attalla to the offender's bank account, this time for $50,600 and shortly afterwards, once more the offender went to a St George bank branch, this time at Unley. On this occasion he transferred $48,000 from his bank account to the bank account of a Jado Ahn. 9. This represents another offence of recklessly dealing with the proceeds of crime and when I sentence him for that matter he has asked me to take into account three further offences, offences I have already mentioned, which are on the Form 1 attached to that offence. 10. In total, the offender withdrew $40,500 in cash and transferred $133,500 to other recipients. He was detected when, on 13 October 2014, he went to a Westpac Bank in Haymarket. When he went to withdraw money from his own bank account staff were alerted by a warning on the system and they contacted police. Police arrested the offender and took him back to a police station. He initially told police that his phone had been lost and his phone contained his banking details and that he knew nothing about his account being used in the way I have described. Indeed, he said he have never even travelled to South Australia. Police responded by showing him some CCTV footage of the offender committing some of the offences a few days earlier. He then changed his mind and told police that he was responsible for the transfers and withdrawal of the money. 11. He explained the circumstances in which he had committed this offence and told police that he had brought $40,500 in cash with him from Sydney by taping it to his body. He handed over that money to a man he called Mr X, an associate of the person who had earlier been supplying him with drugs for on supply. 12. These offences are very serious. Mr Magribi knew that the people involved in this offending were associates of a drug dealer. He knew that substantial sums of money were involved and he performed many and intrinsic steps as part of his offending conduct. He flew interstate. He presented the false document. He made the transfers. He withdrew cash and then there is a clear indication of the offender's level of recklessness as to whether these moneys were the proceeds of crime - he taped the cash to his body before flying back to Sydney. On top of all that he was at the time on bail for the supply prohibited drug matter. 13. The offender lives with his parents in Lakemba. There has been some disharmony in the family home at times and indeed he has a troubled relationship with his father which continues. His early years were unremarkable. He told a psychologist that his parents were strict but affectionate people. Although there were many rules at home he considered them reasonable and fair but things started to go downhill when Mr Magribi was around 15 or 16 years of age. 14. Problems developed between he and his father concerning his choice of friends and associates. His father disapproved of them. His father, indeed, asked that he leave home when Mr Magribi was only 16 years of age. He returned a few weeks later but was asked to leave again and so he established his own home. It was in these circumstances that Mr Magribi found himself in the financial difficulties that I mentioned at the outset of these remarks on sentence. 15. He was retrenched from one position and although he tried to get extra work in his other job working in a café, eventually when the café was sold he lost that job as well. He began to eat into his savings although he still had some left when he began to commit criminal offences for financial gain. 16. Mr Magribi gave evidence before me today. His evidence was unusual in the justification he offered for committing criminal offences. He seemed to think that it was understandable that he would resort to criminal offending as a result of difficult financial circumstances and expressed the opinion that at least he did not commit more serious offences such as robbery or offences involving violence. I suppose there is that to be grateful for but he did display a remarkable lack of insight into the consequences of his actions, in particular the consequences for him of his criminal behaviour. 17. Personal deterrence is of much more importance in this sentencing exercise than would ordinarily be the case and I say that even considering the possibility that some of Mr Magribi's answers were the result of immaturity rather than anything else. Certainly these offences were the sort of offences that were always going to be detected. Mr Magribi did not disguise himself and he used his own bank account but that scarcely makes them any less serious. The sums of money were quite considerable and the loss to either the bank or the person whose bank account it was, would have been considerable if everyone had got away with what they were doing. 18. Mr Magribi pleaded guilty at an early stage and so the sentence I impose upon him will be 25% less than it would otherwise have been. It is certainly a mitigating feature that at least part of the motivation active upon Mr Magribi when he committed the offences for which I must sentence him was the threat which had been made to him in the event that he did not satisfy the debt he owed. On the other hand, as the Crown pointed out, it was Mr Magribi's decision alone to put himself in this criminal milieu. He began associating with people who he knew to be involved with drugs. He owed them money, not only because he was arrested, but as he told me because he gambled money away and lost it that way. 19. So although, as I have said, I do regard the circumstance that Mr Magribi was threatened as a mitigating feature, the weight that I would give it is less than would otherwise have been the case because of the circumstances in which the threat was made. 20. I mentioned the need for personal deterrence but general deterrence is also of crucial importance. It is one thing to commit a crime, but it is another thing to be able to benefit from it. What Mr Magribi did was ensure that the proceeds of one crime he committed, using the false document, were available to those above him in the criminal hierarchy through the commission of other crimes. 21. Many people, as I noted at the outset of these remarks on sentence, get into dire financial circumstances, and some - fortunately not many - but some will resort to criminal activity of the kind that I have described in these remarks on sentence. It is important therefore that general deterrence operate to persuade those in the position Mr Magribi found himself to deal with their financial difficulties in some way other than the commission of these types of criminal offences. 22. The submissions made to me today by Mr O'Brien who appears for Mr Magribi focussed, at least in terms of the ultimate outcome, very much on attempting to persuade me that an Intensive Corrections Order should be imposed. 23. I mention only for the purpose of completeness that there might be difficulties faced by the magistrate if I were to impose an Intensive Corrections Order for two years, for example, when the magistrate comes to sentence Mr Magribi for a drug supply matter, but I emphasise that I have put those considerations to one side. They may have been relevant had it been necessary for me to consider the future listing of this matter, but have no other relevance. Ultimately I have to follow the steps that the authorities require of me before I can consider an alternative to full time imprisonment. 24. It was, at least by implication, conceded by Mr O'Brien that a custodial sentence was required. The next step for me is to consider what sentences are appropriate for each of the offences committed by Mr Magribi. I then consider issues of accumulation and totality, and only then do I examine whether alternatives to full time custody are available. 25. Having performed that exercise I have decided that there are no alternatives to full time custody which are available to me. The seriousness of Mr Magribi's conduct and the number of offences mean that the sentence that I have decided upon is more than two years, and thus no alternatives to full time custody are available. 26. I have decided to impose an aggregate sentence of imprisonment. Before I announce that, I will indicate the sentences I would have imposed had I not imposed an aggregate sentence. For sequence 1 it would have been 18 months imprisonment. Sequence 2, 12 months imprisonment. Sequence 3, nine months imprisonment. Sequence 6, 12 months imprisonment. Sequence 8, 18 months' imprisonment, taking into account of course the matters on the Form 1. 27. I will give Mr Magribi credit for two days pre-sentence custody and thus date the sentence I am about to announce from 15 July 2015. I set an aggregate sentence of imprisonment commencing consisting of a non parole period of 15 months, with a head sentence of 30 months. Thus Mr Magribi is to be released to parole on 14 October 2016. 28. Are there any other orders required? 29. I will adjourn the consideration of the question as to an order under s 91(1) of the Victims Right and Support Act. 30. ADJOURNED TO 21 AUGUST 2015