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District Court 11 November 2016

R v Ahmad Hassoun

[2016] NSWDC 409

Assault & violenceFraud & dishonesty
CRIMINAL SENTENCE AFTER TRIAL BUSINESS IN FINANCIAL DECLINE EXTENSIVE DAMAGE TO PREMISES AND STOCK NO IMMEDIATE THREAT TO OTHERS AROUND MID

Citation: R v Ahmad Hassoun [2016] NSWDC 409
Court: District Court of New South Wales
Date: 11 November 2016
Judge: Tupman DCJ

Background

The offender was the proprietor of a smash repair business at Kogarah, which he had operated since 2004. By mid-2008 the business was in financial decline, recording significant losses and struggling to meet its debts. On the night of 7 to 8 August 2008, a fire destroyed the premises, caused by persons using petrol as an accelerant in at least two locations.

The offender was not physically present when the fire was lit. However, the jury found that he participated in a joint criminal enterprise to set the fire, with the purpose of making a fraudulent insurance claim against his insurer, Lumley Insurance, for approximately $296,000. No insurance money was ever paid to him, and he lost his business entirely.

The matter proceeded to trial almost eight years after the offences. A Coroner's inquiry ran across several hearing days in 2011 and 2012, before being suspended and referred to the Director of Public Prosecutions. Despite that referral in August 2012, no charges were laid until August 2015, leaving three years of delay unexplained.

  • What sentence was appropriate for arson committed by means of fire to damage property, contrary to s 197(1)(b) of the Crimes Act 1900 (maximum 14 years)?
  • What sentence was appropriate for attempted dishonest obtaining of money by deception (lodging a false insurance claim), contrary to s 178BA(1) of the Crimes Act 1900 (maximum 5 years)?
  • What sentence was appropriate for concurring in the making of false financial records, contrary to s 178BB(1) of the Crimes Act 1900 (maximum 5 years)?
  • How should the court treat the significant, and in part unexplained, delay between offending and trial in fixing the sentence?
  • Whether full-time custody was required, or whether suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 were appropriate.

Decision

Her Honour found the objective seriousness of the arson to be around the mid-range. There was no immediate risk to persons, the damage was confined to the offender's own business premises, and the offender made no financial gain. The fraud charges were linked directly to the arson and were treated as part of the same course of conduct.

The unexplained three-year delay between the Coroner's referral and the laying of charges weighed significantly in the offender's favour. Combined with the total period of approximately eight years between offending and trial, the court was required to sentence a person whose circumstances had changed substantially since the original conduct.

Her Honour took into account the offender's demonstrated rehabilitation during that extended period, his limited criminal history, the staleness of the offending, and the fact that he derived no financial benefit from the scheme and lost his business as a consequence. These factors, alongside the principle under s 5 of the Crimes (Sentencing Procedure) Act 1999 that imprisonment should only be imposed as a last resort, supported a non-custodial outcome.

The Crown accepted that full-time custody was not necessary. The court imposed terms of imprisonment but suspended all of them pursuant to s 12 of the Crimes (Sentencing Procedure) Act 1999, on the basis that the offender enter into good behaviour bonds for the duration of each sentence. No supervision conditions were imposed, as Probation and Parole assessed them as unnecessary.

Orders Made

  • Count 1 (arson, s 197(1)(b)): Convicted; sentenced to 2 years imprisonment, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999 upon entry into a good behaviour bond for the period of the sentence.
  • Count 2 (attempted obtaining by deception, s 178BA(1)): Convicted; sentenced to 6 months imprisonment, suspended under s 12 upon entry into a good behaviour bond, concurrent with Count 3.
  • Count 3 (false financial records, s 178BB(1)): Convicted; sentenced to 6 months imprisonment, suspended under s 12 upon entry into a good behaviour bond, concurrent with Count 2.

Key Takeaways

  • Significant and unexplained prosecutorial delay between a Coroner's referral and the laying of charges is a weighty mitigating factor at sentencing, particularly where it contributes to a total gap of many years between offending and trial.
  • Where an offender has undertaken lengthy demonstrated rehabilitation during an extended pre-trial period, that rehabilitation can support a departure from full-time custody even for a mid-range arson offence.
  • The absence of actual financial gain, combined with the loss of the very asset the scheme was designed to exploit, was treated as relevant to the offender's overall culpability and the appropriateness of the sentence.
  • Under s 5 of the Crimes (Sentencing Procedure) Act 1999, a court must not impose imprisonment unless no other penalty is appropriate; the District Court here found that suspended sentences satisfied the requirements of the sentencing exercise across all three counts.
  • A co-accused charged jointly on the arson count was acquitted by directed verdict during the trial, leaving the offender as the only person convicted, though identified as having acted through a joint criminal enterprise with unidentified third parties.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1), 178BB(1), 197(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5 and 12
- Coroners Act 2009 (NSW), ss 61 and 78(3)

Cases:
- Coles v R [2016] NSWCCA 32