R v Moussellmani[2022] QCA 155

SUPREME COURT OF QUEENSLAND

1. [1]
   MULLINS P:  I agree with Davis J.
2. [2]
   McMURDO JA:  I agree with Davis J.
3. [3]
   DAVIS J:  The applicant seeks leave to appeal sentences imposed upon him on 24 February 2022 in the District Court at Southport.
4. [4]
   The applicant pleaded guilty to three offences on two indictments:

That on divers dates between the second day of January, 2019 and the twenty-third day of January, 2019 at Gold Coast or elsewhere in the State of Queensland, KAMEL MOUSSELMANI dishonestly induced SUSAN MAREE HOWELL to deliver bank credits to him.

And the property was of a value of at least $100,000. (the first count)

That on divers dates between the fourteeth day of May, 2019 and the second day of June, 2019 at Gold Coast or elsewhere in the State of Queensland, KAMEL MOUSSELMANI dishonestly induced JOHANNES MEINTJES to deliver bank credits to him. (the second count)

That on divers dates between the seventeenth day of May, 2019 and the thirty-first day of May, 2019 at Gold Coast or elsewhere in the State of Queensland, KAMEL MOUSSELMANI dishonestly induced WEI ZHANG to deliver bank credits to him.

And the property was of a value of more than $30,000. (the third count)

5. [5]
   The charges arose from a scheme conducted by the applicant where he provided building services whilst not being registered.  He identified registered builders and then, using their Queensland Building and Construction Commission (QBCC) licence number, pretended to be a registered builder.  Under that pretence, he entered into building contracts with three homeowners.
6. [6]
   By the first count, the applicant induced the homeowner to pay him $112,000.  In relation to the second count, he induced the homeowner to part with $28,500 and in relation to the third count, $43,000.  In total, he obtained $183,500.  Some building work was done but all three projects remained unfinished.
7. [7]
   The applicant’s illicit activities were detected by the QBCC who charged him with three summary offences of conducting unlicensed building work contrary to the Queensland Building and Construction Commission Act 1991.  Upon his pleas of guilty in the Magistrates Court in Southport, the applicant was convicted and fined $30,000 and ordered to pay costs of court of $2,250.
8. [8]
   On the first count on indictment, the applicant was sentenced to three and a half years imprisonment, 18 months on the second count and two years on the third.  All sentences were ordered to be served concurrently and were suspended after the applicant has served nine months imprisonment for an operational period of three and a half years.^[1]
9. [9]
   Only one ground of appeal was pressed, namely: “That the sentence resulted from a miscarriage of justice, namely that the factual basis advanced for sentence by the Crown was unclear and/or inconsistent with the charge preferred in the indictment”.  That ground was meant to apply to each of the sentences, although it was the sentence on the first count that reflected the totality of the criminality.
10. [10]
    Three arguments were raised in support of the ground.  They were:

1. The charges all allege a dishonest inducement but the judge sentenced the applicant on the basis that he received a benefit.
2. The quantum of the benefit was not established.
3. The sentences imposed on the related summary offences were not properly taken into account in assessing totality.

Inducement not benefit

11. [11]
    All charges were laid under s 408C of the Criminal Code.  Section 408C in its present form was introduced by amendment in 1997^[2] when provisions based on old common law offences were repealed.^[3]  Section 408C creates a number of individual offences all based on an essential element of dishonesty.  Relevantly, it provides:

“408CFraud

3. (1)
   A person who dishonestly—

1. (a)
   …

3. (c)
   induces any person to deliver property to any person; or

4. (d)
   gains a benefit or advantage, pecuniary or otherwise, for any person; or …

commits the crime of fraud.”

12. [12]
    By s 408C(1)(c), it is an offence to dishonestly induce the delivery of property to a person who may or may not be the offender.  By s 408C(1)(d), it is an offence to dishonestly gain a benefit for any person who may or may not be the offender.  Here, each count charged an offence against s 408C(1)(c), not s 408C(1)(d).
13. [13]
    Before sentence, correspondence passed between the prosecution and defence.  In response to a submission that the building work had produced a financial loss to the applicant, the prosecution said:

“Other features that you raise in your below email, for example what benefit your client received from the fraud, are also matters that can be raised at sentence.  The fraud alleged is the dishonest inducement, not obtaining a benefit.”

14. [14]
    The distinction between the applicant inducing the payment, or obtaining a benefit, is of little real significance.  The three charges all allege that the person to whom the property was induced to be delivered was the applicant.  As the prosecution stated in their correspondence, the benefit, or lack thereof, to the applicant from the fraud was relevant to the criminality as was any damage suffered by the homeowners.  These matters were considered by the sentencing judge.
15. [15]
    The first argument in support of the ground of appeal fails.

Quantum of benefit

16. [16]
    As already observed, some building work was performed.  Therefore, the applicant’s profit from the fraud was not $183,500 but something less.  In sentencing the applicant, the sentencing judge recorded that the total amount received by the applicant was $183,000.  In fact, it was $183,500, but nothing turns on this.  Her Honour observed that building work was carried out for each of the three homeowners and then said:

“I make the following comments at this stage in relation to the actual offending. As I indicated, you received a total of $183,000, as a result of advertising your services, which was paid by the three complainants. It is, however, impossible upon the evidence to know how much work you carried out on each of the complainants’ houses, what money you profited due to your offending and, in reality, the actual financial loss directly linked to your offending. However, it’s clearly a significant fraud.”

17. [17]
    Her Honour’s statement can only sensibly be read as meaning that she could not make a finding about the net benefit secured by the applicant by his fraud but that it was a “substantial fraud” involving receipt of $183,000.  No complaint can be made of her Honour’s approach and this argument has no merit.

Totality

18. [18]
    Her Honour specifically referred to the fines that had been imposed on the summary offences.  That was clearly a matter which her Honour took into account in assessing sentence on the indictable offences.
19. [19]
    At the time of offending, the applicant was 36 years of age.  He has a prior criminal history in Queensland, New South Wales, Victoria and South Australia.  He has prior convictions for dishonesty offences in New South Wales, Victoria and South Australia.  In September 2012, in the Magistrates Court at Adelaide, the applicant was convicted of a number of offences where he performed unlicensed building work.
20. [20]
    The fraudulent scheme which produced the current offences involved deliberate and calculated deception where the applicant dishonestly used the registration details of legitimate builders who were innocent of any wrongdoing.
21. [21]
    As observed by her Honour, the fraud was substantial as it induced the three homeowners to pay a total of $183,500 to the applicant when they would not have done so had they known the applicant was not a registered builder.
22. [22]
    The sentences imposed are within the range of a proper exercise of discretion, taking into account aspects of totality arising from the convictions and sentences imposed on the related summary offences.  No error is shown.

Conclusions

23. [23]
    There is no substance in any of the arguments raised in support of the ground of appeal.
24. [24]
    I would dismiss the application for leave to appeal.