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District Court 28 November 2014

R v Zaky, Manerva

[2014] NSWDC 388

Fraud & dishonesty
CRIMINAL SENTENCE DEFRAUD THE COMMONWEALTH RENT ASSISTANCE PARTICULAR CIRCUMSTANCES

Citation: R v Zaky, Manerva [2014] NSWDC 388
Court: NSW District Court
Date: 28 November 2014
Judge: King DCJ

Background

The offender was sentenced following a jury trial in which she was found guilty of two separate but related Commonwealth fraud offences. Both offences arose from the same underlying conduct: claiming and receiving rent assistance from Centrelink over more than eleven years while residing in a home owned by her husband.

The husband had purchased the family home in February 1996 using an alternative name, "Ezzat William." The offender and her husband repeatedly represented to Centrelink across multiple claim forms and reviews that they paid rent to a private landlord, referring variously to a "Mr Williams," a "Dr William," or an "E William" at a PO Box address. In fact, no rent was paid to any third party. The total amount of rent assistance received to which the offender was not entitled was $27,374.78.

The offending was divided into two charge periods solely because the relevant Commonwealth legislation changed during the course of the conduct. The first offence under s 29D of the Crimes Act 1914 covered the period from August 1999 to May 2001 (involving $4,561.66). The second offence under s 134.2(1) of the Criminal Code Act 1995 covered the longer period from May 2001 to October 2010 (involving $22,813.12).

  • What sentence was appropriate for each offence, given that both arose from a single, continuous course of fraudulent conduct spanning over a decade?
  • Whether the sentences should run concurrently or be partly accumulated, given the differing durations and amounts involved in each offence period.
  • What weight to give to the offender's personal circumstances, including physical disability, when determining the form of the sentence.
  • Whether a reparation order was appropriate.

Decision

King DCJ treated the two offences as forming a single, continuous course of conduct, noting the legislative change was the sole reason the conduct was split across two charges. Nonetheless, the court determined that separate sentences were required and that some accumulation was necessary to reflect the different lengths of time and the different amounts of money involved in each offence period.

The court considered the appropriate range of sentence to be that applicable in the Local Court, given the amounts involved and the overall circumstances. For the first offence under the Crimes Act, the court imposed six months' imprisonment. For the second and more serious offence under the Criminal Code, the court imposed 18 months' imprisonment, commencing two months into the first sentence, producing a total effective term of approximately 20 months.

King DCJ made a recognisance release order (the equivalent of what practitioners would recognise as a form of conditional early release), directing that the offender be released after serving 10 months. The court expressly noted that the offender's physical disabilities would make imprisonment harder to endure, though His Honour was satisfied that Corrective Services could manage her needs.

A reparation order was also made for the full amount of $27,374.78, though the court acknowledged that if funds said to have been transferred had in fact been paid, the Crown would not rely on the order.

Orders Made

  • Sentence of 6 months' imprisonment for the offence contrary to s 29D of the Crimes Act 1914, commencing 28 November 2014 and expiring 27 May 2015.
  • Sentence of 18 months' imprisonment for the offence contrary to s 134.2(1) of the Criminal Code Act 1995, commencing 28 January 2015 and expiring 27 July 2016 (partially accumulated, commencing two months into the first sentence).
  • Recognisance release order: the offender to be released after serving 10 months of the total sentence (on 27 September 2015), upon entering a recognisance of $5,000 to be of good behaviour for two years.
  • Reparation order in the sum of $27,374.78.

Key Takeaways

  • Where a single course of fraudulent conduct straddles a change in Commonwealth legislation, separate charges and separate sentences are still required for each legislative period, even where the underlying conduct is continuous.
  • Some accumulation of sentences was warranted here to reflect the differing seriousness of each offence period, measured by both the duration of offending and the amount obtained, even within a single scheme.
  • The District Court applied a sentencing range consistent with the Local Court's jurisdiction, given the scale of the fraud, while still treating it as a matter warranting actual imprisonment.
  • Physical disability is a relevant mitigating factor in determining the form a sentence takes, though it does not automatically reduce the length of the sentence imposed.
  • A reparation order under the Crimes Act 1914 framework may be made for the full amount of fraudulently obtained funds, subject to adjustment where repayment has already been made.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 29D
- Criminal Code Act 1995 (Cth), s 134.2(1)

Cases:
- R v Van Tung Luu (NSWCCA, unreported, 7 December 1994)
- R v Purden (NSWCCA, unreported, 27 March 1997)
- R v Hawkings (1989) 45 A Crim R 430
- R v Annecchini (NSWCCA, unreported, No. 60318 of 1995)
- R v Cameron (1993) 171 LSJS 305
- Ralph v Narwojee [2003] WASCA 5
- R v Cheung Wai Man and Ors (NSWSC, 22 March 1991, unreported)
- R v Chen and Ors (2002) 130 A Crim R 300
- R v Wood [2005] NSWCCA 233