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District Court 15 December 2021

R v Ogbeide

[2021] NSWDC 750

Fraud & dishonesty

Citation: R v Ogbeide [2021] NSWDC 750
Court: District Court of New South Wales
Date: 15 December 2021
Judge: M L Williams SC DCJ

Background

The offender, a 26-year-old Nigerian national living in Australia on a student visa, was a participant in a criminal syndicate that carried out business email compromise (BEC) frauds and online romance scams. His role was to receive proceeds of crime into his own bank accounts, act as a conduit between syndicate members, and purchase Bitcoin using those funds. The total amount dealt with across all offences was approximately $835,031.

Police identified the offender through a Strike Force investigation and arrested him in June 2020. Items seized from his home included laptops, mobile phones, and electronic storage devices. During a police interview, the offender denied the full extent of his involvement, disputed the amounts handled, and claimed large sums came from his parents, a claim the court was unable to verify.

The offender entered guilty pleas and was sentenced for six principal offences, with five further matters taken into account on a Form 1. The charges included participating in a criminal group, multiple counts of knowingly dealing with proceeds of crime, dealing with identity information to commit an indictable offence, and dealing with property that constituted proceeds of crime.

  • What was the appropriate starting point for sentence, having regard to the objective seriousness of each offence and the total criminality of the conduct?
  • What discount was warranted for the guilty pleas and for assistance provided under s 23 of the Crimes (Sentencing Procedure) Act 1999?
  • Whether parity with co-offender Racha Salame required any adjustment to the sentence.
  • Whether special circumstances existed to justify a departure from the statutory ratio between the non-parole period and the head sentence.
  • How the principles of totality should govern the construction of the aggregate sentence.

Decision

The court assessed the offending as serious. The offender was not a mere low-level functionary: he received between $10,000 and $30,000 in cash, as well as other benefits, and was found on his own evidence to have received approximately 10% of the $800,000 in proceeds handled by the syndicate. His offending occurred while he was subject to two community corrections orders and, in some instances, while on bail, constituting a significant aggravating factor.

The court allowed a total discount of 35%: 25% for the guilty pleas entered in circumstances justifying that reduction, and a further 10% under s 23 of the Crimes (Sentencing Procedure) Act 1999 on the basis of material contained in a confidential affidavit. The Crown did not contest the combined discount.

On the parity question, the court compared the offender's position with that of co-offender Salame, who had received a sentence with a non-parole period representing only 37% of the head sentence, reflecting a substantial special circumstances finding. The court accepted the Crown's submission that the offender's subjective circumstances were less compelling than Salame's, and declined to make an equivalent adjustment. The court noted the relevance of totality principles, applying the approach summarised in R v XX (2009), and determined that some accumulation was appropriate to reflect the full criminality of the conduct.

The court found special circumstances, which allowed the non-parole period to fall below the standard statutory ratio of one half of the head sentence, though not to the same degree as in Salame's case.

Orders Made

  • The offender was convicted of each offence.
  • After a 25% discount for guilty pleas and 10% discount for past assistance, indicative sentences were:
  • Sequence 1 (participating in a criminal group): 18 months
  • Sequence 2 (knowingly dealing with proceeds of crime, $52,681): 15 months
  • Sequence 3 (knowingly dealing with proceeds of crime, $54,719): 15 months
  • Sequence 10 (knowingly dealing with proceeds of crime, $110,994, including Form 1 matters): 31 months
  • Sequence 14 (dealing with identity information): 16 months
  • Sequence 8 (dealing with property constituting proceeds of crime, $341,077): 18 months
  • An aggregate sentence of three years and ten months imprisonment was imposed, commencing 25 June 2020.
  • A non-parole period of two years and one month was imposed, expiring 24 July 2022.
  • Special circumstances were found.

Key Takeaways

  • A sentence for multiple fraud and proceeds-of-crime offences committed within a criminal syndicate will reflect the totality of the offending, with some accumulation of individual terms where the gravity and breadth of the conduct warrants it.
  • Offending committed while subject to community corrections orders and on bail constitutes a significant aggravating factor that weighs against more lenient treatment at sentence.
  • The District Court declined to extend the same degree of special circumstances adjustment applied in a co-offender's case, finding that the subjective circumstances of each offender must be individually assessed and that parity does not mandate identical outcomes where subjective factors differ materially.
  • A combined discount of 35% (25% for plea, 10% for assistance under s 23) was accepted as appropriate in this matter, illustrating that the two discounts can operate together where the statutory conditions are met.
  • Where an offender's evidence at the sentencing hearing reveals inconsistencies with earlier representations, including escalating admissions about the quantum of financial benefit received, those inconsistencies bear on the assessment of remorse and the weight to be given to the subjective case.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T, 192J, 193B(2), 193B(3), 193C(1), 193C(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146 (guideline judgment on Form 1 matters)
- Green v The Queen (2011) 244 CLR 462
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- R v Salame (unreported, NSWDC, 1 April 2021)
- R v XX (2009) 195 A Crim R 38 (totality principles)
- Ramos v The Queen [2018] NSWCCA 20