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District Court 28 April 2022

R v Sallam

[2022] NSWDC 191

Fraud & dishonestyPublic order & justice offences

Citation: R v Sallam [2022] NSWDC 191
Court: District Court of New South Wales
Date: 28 April 2022
Judge: Bennett SC DCJ

Background

The offender had previously worked as a health recovery consultant in the compulsory third party (CTP) claims department of Insurance Australia Group, a role that gave him detailed knowledge of how CTP claims were processed. After leaving that employment, he commenced trading through a physiotherapy and rehabilitation business in January 2015, registering himself and another person as co-directors. That business became the vehicle through which a coordinated fraud was carried out over approximately two years.

The offender and a group of associates operated a scheme involving the submission of fraudulent CTP claims, including the creation of false medical and treatment documents. The group's activities continued from January 2015 to March 2017. The offender appeared for sentence on two charges: participation in a criminal group under s 93T(1) of the Crimes Act 1900, and making a false document to obtain a financial advantage under s 253(b)(ii) of the same Act. A further offence of making a false document was also before the court on a Form 1 (a mechanism allowing additional related offences to be taken into account when sentencing, without recording a separate conviction).

The offender pleaded guilty upon arraignment in the District Court in September 2021, shortly before a trial estimated to take six weeks was due to commence. He had prior offending of a similar nature, and at the time of these offences he was subject to a good behaviour bond.

  • What discount for the utilitarian value of a guilty plea was appropriate given the timing of the plea and the complexity of the avoided trial
  • How to treat pre-sentence custody where some custody periods were referable to an unrelated and unresolved Commonwealth matter, rather than solely to the offences before the court
  • What aggregate sentence appropriately reflected the objective seriousness of the offending, the offender's personal circumstances, and the relevant sentencing purposes including deterrence, denunciation, and rehabilitation
  • Whether any action should be taken for breach of the existing good behaviour bond

Decision

Guilty plea discount: The court assessed the utilitarian discount at 15%. Defence counsel had pressed for 15% to 20%, pointing to the length of the anticipated trial and the complexity of the plea negotiations. The Crown accepted a range of 10% to 15%. The court settled on 15%, acknowledging that the community was spared a lengthy and factually complex proceeding, while noting the plea came well after the initial arraignment.

Pre-sentence custody: The court addressed a specific difficulty: the offender had been in custody for periods attributable both to these proceedings and to an unrelated Commonwealth matter that remained unresolved. Relying on R v Niass (1988) as confirmed in Hampton v R [2014] NSWCCA 313, the court held that only custody directly referable to the offences before it could properly be taken into account when back-dating the commencement of the sentence. Custody for the Commonwealth matter was extraneous to this sentencing exercise, and the court determined that the Commonwealth sentencing court would be better placed to account for that custody in its own sentencing structure and totality assessment.

Sentencing considerations: The court identified the offending as serious, particularly given the offender's insider knowledge of CTP claims systems and his prior offending of a like nature. The court emphasised that the CTP scheme serves the whole community and that fraud depleting or undermining that scheme causes diffuse but real harm. Specific and general deterrence, denunciation, and community protection all carried significant weight. The court noted that an earlier sentencing judge had already denounced similar conduct by the offender, yet he reoffended.

Bond breach: The court found the breaches of the existing good behaviour bond proven but took no action, given that the bond had long since expired and the aggregate custodial sentence was being imposed.

Orders Made

  • Aggregate sentence of imprisonment imposed with a non-parole period of 2 years commencing 26 June 2021, and an overall term of 3 years and 4 months
  • Eligible for release to parole on 25 June 2023
  • Indicative sentence for participation in a criminal group (Count 1): 2 years and 4 months (after 15% guilty plea discount)
  • Indicative sentence for making a false document to obtain a financial advantage, taking into account the Form 1 offence (Count 2): 2 years and 10 months (after 15% guilty plea discount)
  • Form 1 certified confirming the additional offence was taken into account
  • Bond breach proven; no further action taken

Key Takeaways

  • Under s 47 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may only back-date a sentence to reflect pre-sentence custody that is directly referable to the offences before it; custody attributable solely to an unrelated and unresolved matter in another jurisdiction falls outside that exercise.

  • Where an offender faces concurrent sentencing proceedings in a different jurisdiction, the District Court confirmed that the court dealing with those separate proceedings is the appropriate forum to address the totality of misconduct and any overlapping pre-sentence custody for those charges.

  • A guilty plea entered at arraignment in the District Court, shortly before a complex multi-week trial, attracted a 15% utilitarian discount rather than the higher end sought by the defence, reflecting the lateness of the plea relative to the initial charging stage.

  • Prior offending of a similar nature, combined with the offender's insider knowledge of the insurance system being exploited, were treated as significant aggravating features that increased the weight given to specific deterrence and community protection.

  • Fraud targeting the CTP insurance scheme, while not directed at any specific victim, was characterised by the court as community-wide harm warranting strong denunciation, given the scheme's function in protecting all road users.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93T(1), 253(b)(ii)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 47, 53A; Part 3 Div. 1A; Part 3 Div. 3; Part 4 Div. 1A
- Crimes Act 1914 (Cth), Part 1B

Cases
- Edelbi v R [2021] NSWCCA 122
- Hampton v R [2014] NSWCCA 313
- Imbornone v R [2017] NSWCCA 144
- R v Niass (NSWCCA, 16 November 1988, unreported)
- R v Robert Borkowski [2009] NSWCCA 102
- Ridley v R [2008] NSWCCA 324
- Tepania v R [2018] NSWCCA 247
- Totaan v R [2022] NSWCCA 75