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District Court 8 March 2008

R v Harry Ghamraoui

[2008] NSWDC 31

Fraud & dishonestyTheft & propertyTraffic & driving
USE COPIES OF A FALSE INSTRUMENT ROBBERY FORM 1 OFFENCES S166 CERTIFICATE NEGLIGENT DRIVING DRIVE WHILST DISQUALIFIED

Citation: R v Harry Ghamraoui [2008] NSWDC 31
Court: District Court of New South Wales
Date: 8 March 2008
Judge(s): Knox SC DCJ

Background

The offender faced sentencing across two separate indictments and a section 166 certificate, covering offences committed between October 2003 and July 2006. The fraud indictment arose from a scheme in which the offender submitted home loan applications using false identities, forged identity documents, and fabricated bank statements, obtaining hundreds of thousands of dollars from a mortgage lender. The offences were committed while the offender was working in a position of trust as a mortgage broker.

The second indictment concerned a street robbery in July 2006 in which the offender took $30 from a victim at Lucas Heights. Related driving offences, including driving in a manner that menaced another person, negligent driving, and driving while disqualified, were dealt with on a section 166 certificate alongside the robbery sentence.

The offender had a long history of prior convictions, was on conditional liberty at the time of the offences, and had pleaded guilty to all charges. He suffered from drug and gambling addictions, and denied any knowledge of the offences at an early stage before ultimately pleading guilty.

  • What sentences were appropriate across the fraud, robbery, and driving offences, having regard to the objective seriousness of each and the need for accumulation or concurrence?
  • What weight should be given to mitigating factors including the guilty pleas, drug addiction, gambling addiction, and the offender's personal circumstances?
  • Whether special circumstances existed justifying a variation of the standard non-parole period ratio.
  • How to calculate the appropriate commencement date for the sentences, taking into account periods already spent in custody.
  • What discount was warranted for the guilty pleas, and whether the pleas were entered at the earliest reasonable opportunity.

Decision

The court assessed the fraud offences as falling in the mid-range of criminality. The offender had exploited his role as a mortgage broker to submit loan applications under false names supported by forged identity documents, and had done so on multiple occasions over several months. The breach of trust was treated as a significant aggravating factor.

On the plea discount, Knox SC DCJ applied a 15 per cent reduction. The court noted that although the pleas were ultimately entered, they did not come at the first available opportunity. The offender had initially denied knowledge of the offences and failed to appear when his trial was first listed.

The court found special circumstances existed, justifying an adjustment to the standard non-parole period ratio. The finding resulted in a parole period representing one-third of the total sentence, reflecting the offender's need for an extended period of supervision on release given his history of addiction and reoffending. The non-parole periods for the fraud sentences were absorbed into fixed terms under the special circumstances finding.

For the robbery, the court imposed a sentence with a standard structured non-parole period, commencing after the fraud sentences expired, reflecting the principle of accumulation for offences of a different character committed at a different time. The driving offences were ordered to run concurrently with the robbery sentence.

Orders Made

Fraud indictment:
- Count 1: Fixed term of 3 years 6 months, commencing 18 April 2007, expiring 17 October 2010.
- Counts 2, 5 and 6: Fixed term of 3 years imprisonment, commencing 18 April 2007, expiring 17 April 2010, concurrent with Count 1.
- Counts 3, 4 and 7: Fixed term of 2 years imprisonment, commencing 18 April 2007, expiring 17 April 2009.

Robbery indictment:
- 3 years 9 months imprisonment, commencing 18 April 2010, expiring 17 January 2014, with a non-parole period of 2 years 6 months commencing 18 April 2010 and expiring 17 October 2012.

Section 166 certificate (concurrent with robbery sentence):
- Driving with menaces: Fixed term of 12 months, commencing 18 April 2010, expiring 17 April 2011; disqualification from driving for 5 years commencing 18 April 2007.
- Negligent driving: Disqualification from driving for 1 year commencing 18 April 2007.
- Drive while disqualified: Fixed term of 12 months, commencing 18 April 2010, expiring 17 April 2011; disqualification from driving for 2 years commencing 18 April 2007.

Total effect:
- Non-parole period of 5 years 6 months commencing 18 April 2007, expiring 17 October 2012.
- Parole period of 1 year 3 months commencing 18 October 2012, expiring 17 January 2014.

Key Takeaways

  • A guilty plea discount of 15 per cent was applied where the offender did not enter his pleas at the first reasonable opportunity, having initially denied involvement and failed to appear at the first trial listing.
  • Special circumstances were found to exist, producing a non-parole to parole ratio of approximately two-to-one across the overall sentence, to account for the offender's rehabilitation needs arising from long-standing drug and gambling addiction.
  • Breach of a position of trust operated as a significant aggravating factor in the fraud sentencing, particularly where the offender used his professional role as a mortgage broker to facilitate the scheme.
  • Sentences for the robbery and associated driving offences were accumulated upon the fraud sentences, reflecting that they involved different conduct occurring at a materially different time.
  • The commencement date was fixed at 18 April 2007, taking into account relevant periods already spent in pre-sentence custody, with the court acknowledging a modest benefit to the offender in adopting that date.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 94, 178BA(1), 178BB(1), 301(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 166

Cases:
- Thomas [2007] NSWCCA 19
- R v Youkhana [2004] NSWCCA 412
- R v Henry and Ors [1999] NSWCCA 111
- R v Murchie (1999) 108 A Crim R 482
- R v Stanley [2003] NSWCCA 233
- R v Lesi [2005] NSWCCA 63
- R v Corbett (1991) 52 A Crim R 112
- R v Pont (2000) 121 A Crim R 302