Citation: R v Zreika [2021] NSWDC 357
Court: District Court of New South Wales
Date: 8 June 2021
Judge: Colefax SC DCJ
Background
The offender pleaded guilty to four counts on indictment, all arising from a sustained scheme to defraud Commonwealth government disaster relief and social security payments. The offending began in early 2020, shortly after the federal government established the Bushfire Disaster Relief Fund in response to the catastrophic 2019-20 bushfire season. That fund was designed to deliver rapid $1,000 payments to eligible claimants, and its deliberately streamlined processes created an exploitable vulnerability.
The offender fabricated 32 entirely false identities, stole the identities of three real individuals, opened multiple bank accounts, and submitted a large volume of fraudulent claims over several months. He also made false claims for JobSeeker, the NewStart Allowance, rental assistance, and fraudulently obtained hotel accommodation by impersonating a government employee. In total, he received $36,213.74 in payments to which he had no entitlement.
Compounding his culpability, the offender continued offending after his arrest and while on bail. He also told a fabricated story to police upon arrest, alleging he had been coerced by standover men, and repeated those lies to the author of the Sentencing Assessment Report and on oath in court, before later admitting they were false.
Legal Issues
- What was the appropriate aggregate sentence for four counts of Commonwealth fraud offences, having regard to objective seriousness, subjective circumstances, the guilty plea, and totality?
- What weight should be given to the guilty plea discount, given it was entered against a very strong prosecution case?
- What role did specific and general deterrence play, given the offender's persistent dishonesty before and after arrest?
- How should the related State offence (dishonestly causing a financial disadvantage) be dealt with alongside the federal indictment?
Decision
Colefax SC DCJ assessed the objective seriousness of each offence individually. The principal offence (sequence 4, obtaining a financial advantage by deception) was rated just below mid-range. The attempt and intent-based offences fell between the lower and middle ranges, and the State offence sat at the bottom of the range. The schedule matters taken into account on the principal offence required a meaningful upward adjustment to that sentence.
The court gave a 25% discount for the early guilty plea across all indicative sentences, while noting the plea was entered in the face of a very strong Crown case. The offender's persistent dishonesty, his fabricated account to police and the report author, his lies on oath, and his reoffending on bail all significantly diminished the weight given to remorse and rehabilitation. The court found both general and specific deterrence were fully engaged.
The court declined to impose any penalty on the State offence (sequence 3) given the sentences imposed on the indictment counts, instead recording a conviction under section 10A of the Crimes (Sentencing Procedure) Act. An aggregate sentence was imposed, with partially accumulated indicative sentences reflecting the totality principle.
Orders Made
- Aggregate term of imprisonment of four years and six months
- Non-parole period of three years, commencing 4 June 2020 and expiring 3 June 2023
- Balance of term: one year and six months, from 4 June 2023 to 3 December 2024
- Conviction recorded for the State offence (sequence 3) with no additional penalty imposed pursuant to section 10A of the Crimes (Sentencing Procedure) Act
Key Takeaways
- The District Court treated the deliberate exploitation of an emergency relief scheme as an aggravating feature, noting that the government's decision to minimise red tape for legitimate claimants made the scheme more vulnerable to fraud of this kind.
- A 25% guilty plea discount was applied, but the court noted expressly that the plea came against a very strong prosecution case, limiting the mitigatory weight it could otherwise carry.
- Fabricating a false exculpatory account, repeating it to a report author, and maintaining it on oath before eventually retracting it significantly undermined the offender's claims of remorse and reduced the weight given to rehabilitation as a sentencing consideration.
- Offending while on bail, including conduct that postdated the arrest for the primary offences, was treated as a distinct aggravating factor that reinforced the need for specific deterrence.
- Under section 10A of the Crimes (Sentencing Procedure) Act, a court may record a conviction for a lesser or related offence without imposing an additional penalty where the sentences on the primary counts are considered sufficient.
Legislation and Cases Referenced
Legislation:
- Criminal Code Act 1995 (Cth), ss 134.2(1), 11.1(1), 135.1(1) (obtaining financial advantage by deception; attempt; dishonestly obtaining a gain from the Commonwealth)
- Crimes Act 1900 (NSW), s 192E(1)(b) (dishonestly causing a financial disadvantage to an entity)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A (conviction without additional penalty)
- Crimes Act 1914 (Cth), s 16BA (taking into account related federal offences on a schedule)
Cases cited: No cases were cited in the portions of the judgment provided.