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Court of Criminal Appeal 9 December 2022

Zreika v R

[2022] NSWCCA 262

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE MANIFEST EXCESS APPEALS APPEAL AGAINST SENTENCE

Citation: Zreika v R [2022] NSWCCA 262
Court: NSW Court of Criminal Appeal
Date: 9 December 2022
Judge(s): Mitchelmore JA, Davies J, Hamill J

Background

The appellant pleaded guilty in the Local Court to four counts of fraudulent conduct under the Commonwealth Criminal Code: two counts relating to dishonestly obtaining (and attempting to obtain) a financial advantage by deception under s 134.2(1), and two counts of dishonestly intending to obtain a gain from a Commonwealth entity under s 135.1(1). A further count of dishonestly causing financial disadvantage to a hotel under the NSW Crimes Act was dealt with by way of conviction without penalty under s 10A. Seven additional offences were placed on a schedule.

The fraudulent conduct centred primarily on the Australian Government Disaster Relief Payment (AGDRP), a one-off emergency payment of $1,000 available to those affected by natural disasters. The appellant made 35 successful AGDRP claims over a three-month period by calling Services Australia, falsely representing that he was a disaster-affected person, and using fabricated or assumed identities. His successful offending netted approximately $36,000, while unsuccessful attempts involved approximately $37,000 more.

The District Court sentenced the appellant to an aggregate term of 4 years and 6 months' imprisonment with a non-parole period of 3 years. The appellant sought leave to appeal on grounds including manifest excess and procedural complaints about the sentencing judge's conduct during the hearing.

  • Whether the sentencing judge's interventions during the appellant's evidence were excessive, gave rise to an apprehension of bias or pre-judgment, or denied procedural fairness
  • Whether the aggregate sentence of 4 years and 6 months was manifestly excessive having regard to the amounts involved, the relatively short period of offending, and the unsophisticated methods employed
  • Whether the sentencing judge erred in failing to find that the appellant had a dysfunctional upbringing connected to his homosexuality (ground 3, which was also pressed)

Decision

On the judicial intervention ground, Davies J (with whom Mitchelmore JA and Hamill J agreed) found that the sentencing judge's questioning of the appellant was appropriate in the circumstances. Because the appellant's credibility was a serious issue, the judge was entitled to signal his concerns and give the appellant an opportunity to explain himself. Had the judge stayed silent, the appellant would have had a legitimate complaint. The fact that the appellant admitted to lying in response to the judge's questions did not constitute a miscarriage of justice.

On apprehension of bias, the Court found that the interventions arose from the appellant's own answers and did not give rise to any appearance of pre-judgment or bias. Ground 3, concerning the dysfunctional upbringing findings, was also dismissed. However, Hamill J noted in separate reasons that dismissing those grounds should not be read as endorsing what he described as the unnecessarily robust conduct of the proceedings, nor as suggesting that a young person being beaten by a parent is anything other than dysfunctional.

On manifest excess, the Court upheld the appeal. Comparing the present case with analogous authorities involving s 134.2 offences, Davies J found that the relatively small amounts involved, the short duration of the offending, and the generally unsophisticated methods (evidenced by the many failed attempts) made the original aggregate sentence manifestly excessive. An additional concern was that the indicative sentence of 10 months for Count 4, which involved an attempted fraud of only $331, was disproportionate and likely inflated the aggregate. The Court also observed that the 25% discount for early plea appeared not to have been properly factored into the aggregate starting point.

Orders Made

  • Leave to appeal granted
  • Appeal upheld in respect of the aggregate sentence
  • Sentence imposed in the District Court on 8 June 2021 quashed
  • In lieu, the appellant sentenced to an aggregate term of 3 years and 6 months' imprisonment commencing 4 June 2020 and expiring 3 December 2023, with a non-parole period of 2 years and 3 months expiring 3 September 2022
  • The s 10A dismissal in respect of the s 166 certificate offence left undisturbed
  • Hamill J recommended that the Parole Authority give urgent consideration to the appellant's release, noting the non-parole period had already expired by the time of the appeal

Key Takeaways

  • A sentencing judge who intervenes to raise credibility concerns with an accused during evidence does not thereby create an apprehension of bias, particularly where the credibility of that evidence is a central issue; keeping such concerns silent would itself be a ground of complaint.
  • An admission of lying extracted through judicial questioning during a sentencing hearing does not, without more, constitute a miscarriage of justice.
  • Where an indicative sentence for a minor count (here, an attempted fraud of $331) appears disproportionate on its face, it is relevant to the manifest excess assessment of the aggregate sentence.
  • The Court of Criminal Appeal confirmed that the early plea discount must be genuinely reflected in the aggregate sentence, not only in individual indicative sentences; an apparent failure to carry that discount through to the aggregate can support a finding of manifest excess.
  • Comparative sentencing analysis under s 134.2 of the Criminal Code (Cth) remains a significant tool in assessing whether an aggregate sentence is within range, particularly where the scale, duration, and sophistication of the fraud are relatively modest.

Legislation and Cases Referenced

Legislation:
- Criminal Code (Cth) ss 134.2, 135.1, 145
- Crimes Act 1900 (NSW) s 192E
- Crimes Act 1914 (Cth) s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A
- Criminal Procedure Act 1986 (NSW) s 166

Cases:
- Ellis v R [2015] NSWCCA 262
- Finnigan v R [2022] NSWCCA 181
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- R v Ryan [2002] NSWCCA 202; (2003) 141 A Crim R 403
- Rami Mohamad v Regina [2005] NSWCCA 406
- Zaky v R [2015] NSWCCA 161
- Zaky v R (Cth) [2017] NSWCCA 141