Citation: R v Omoregie [2020] NSWDC 734
Court: District Court of New South Wales
Date: 9 October 2020
Judge: Weber SC DCJ
Background
A victim residing in London was in the process of purchasing property in Kogarah through her Sydney solicitor. Her solicitor sent an email outlining settlement funds required, including the firm's trust account details. By unknown means, that email was intercepted and altered so that the trust account details were replaced with the offender's personal Commonwealth Bank account number. The victim transferred $289,500 into the offender's account, believing she was paying her solicitor's firm.
The offender, a 22-year-old Nigerian-born man living in Sydney, had been contacted by a person he knew from Nigeria shortly before the transfer arrived. That person asked the offender to assist in purchasing gold in Sydney, offering $5,000 in return. The offender agreed. Over three days beginning on 28 June 2019, he attended ABC Bullion in the Sydney CBD on three occasions and purchased a total of four one-kilogram gold bars using the transferred funds. A man identifying himself as "Frank" later collected the gold from the offender's home and paid him the agreed $5,000. Neither the gold nor the funds were ever recovered.
The offender pleaded guilty to two counts of recklessly dealing with the proceeds of crime under s 193B(3) of the Crimes Act 1900 (NSW), each carrying a maximum penalty of ten years imprisonment. A third offence of the same character was taken into account on a Form 1 (meaning it was acknowledged but not separately sentenced, though it increased the penalty on the second count).
Legal Issues
- Whether the offender's psychological condition (diagnosed major depressive episode and generalised anxiety disorder) was established on the balance of probabilities and was sufficiently connected to the offending to be taken into account in sentencing
- The objective seriousness of the offences, having regard to the amounts involved and the nature of the transactions
- What weight, if any, youth should carry as a mitigating factor given the offender's criminal history and the fact that the offences were committed while he was on conditional liberty
- The appropriate aggregate sentence, including the application of a discount for an early guilty plea and a finding of special circumstances
Decision
Psychological condition: The offender relied on a psychologist's report diagnosing depression and anxiety during the period of offending, with a suggested causal link to family separation and academic pressure. The court rejected this as a mitigating factor. An earlier forensic psychology report, tendered by the Crown, had found that the offender's psychological symptoms arose from his initial contact with the criminal justice system following a robbery in company charge in 2015, with no mention of family separation or academic pressure as causes. The court accepted the Crown's submission that the offender had not established on the balance of probabilities a mental condition apt to be brought into account in the sentencing exercise.
Objective seriousness: The court assessed the offences as objectively serious. The sums involved were large, the conversion of funds into gold bullion rendered the proceeds effectively untraceable, and the transactions were not spontaneous. The offender acted across three separate days and took deliberate steps, including opening a new account with ABC Bullion and attending a bank branch to arrange the transfers.
Aggravating factors and the role of youth: The offender was on conditional liberty at the time of the offences, having previously received suspended sentences for robbery in company and dishonest obtaining of property, and having then been placed on an Intensive Correction Order when a bond was breached. A Community Correction Order for stalking and intimidation was also in force. The court found that, in these circumstances, youth did not operate as a mitigating factor. Rather, when considered alongside the offender's criminal antecedents, it disentitled him to leniency. The court found that the offender had learned nothing from his previous offending and had not benefited from the leniency of prior non-custodial sentences.
Sentence: The court applied an instinctive synthesis approach, consistent with Markarian v The Queen (2005) 228 CLR 357, and imposed an aggregate sentence. A discount was applied for the early guilty plea. The court identified this as the offender's first time in actual custody and found special circumstances, adjusting the ratio between non-parole period and total sentence accordingly.
Orders Made
- The offender was convicted of both offences
- An aggregate sentence of 12 months imprisonment was imposed, commencing 3 September 2020
- Non-parole period of 7 months, expiring 2 April 2021
- Balance of sentence to expire 2 September 2021
- Indicative sentences: 9 months (sequence 9); 11 months (sequence 10, inclusive of the Form 1 offence)
- Time already served (one month and six days) was taken into account in fixing the commencement date
Key Takeaways
- The District Court found that competing psychological reports can undermine a defendant's attempt to establish a mental condition as a mitigating factor, particularly where an earlier report attributes symptoms to a different cause than that relied upon at sentencing.
- Converting the proceeds of crime into gold bullion was treated as a feature that elevated objective seriousness, because it rendered the funds effectively untraceable and was inconsistent with impulsive or opportunistic offending.
- Where an offender commits further offences while on conditional liberty, and has already received multiple non-custodial dispositions, youth may carry no mitigating weight and may instead be considered alongside antecedents in a way that disentitles the offender to leniency.
- Under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW), an aggregate sentence was considered the most appropriate mechanism to reflect proportionality, accumulation, concurrence, and totality across the two counts.
- A Form 1 offence, while not separately sentenced, directly increased the penalty imposed on the count to which it was attached, serving the purposes of personal deterrence and retribution.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 193B(3) (recklessly dealing with proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences); s 53A (aggregate sentencing)
Cases:
- Markarian v The Queen (2005) 228 CLR 357 (instinctive synthesis in sentencing)