Citation: R v Abas [2023] NSWDC 548
Court: District Court of New South Wales
Date: 24 July 2023
Judge: Neilson DCJ
Background
The offender was a participant in a large criminal group that submitted fraudulent applications to Service NSW for micro-business support grants during the COVID-19 pandemic. The group's primary organisers obtained identification details and bank account information from associates, including the offender, so that multiple fraudulent applications could be lodged across different accounts. Service NSW's system permitted only one payment per bank account, which is why the group recruited numerous individuals to provide their personal and financial details.
The offender's role included providing his own identification and bank details, checking his account for incoming payments, passing along a friend's details for an additional fraudulent application, and returning a portion of the received funds to the criminal group. The total financial disadvantage caused by his conduct was $31,500, of which he personally retained $18,000.
The offender pleaded guilty to two substantive charges: dishonestly causing financial disadvantage by deception (maximum 10 years' imprisonment) and dishonestly making a false statement with intent to cause financial disadvantage (maximum 5 years). A further three offences, including participating in a criminal group, were taken into account on a Form 1 (a procedure under which an offender formally asks the court to consider additional admitted offences when passing sentence, without those offences being separately punished).
Legal Issues
- What sentence was appropriate for an offender who played a significant but non-primary role in a large-scale COVID-19 grant fraud scheme?
- What weight should be given to the offender's guilty plea, personal circumstances, mental health, and time already spent in custody?
- Was the offender suitable for an intensive correction order (ICO) in the community rather than full-time imprisonment, having regard to community safety?
Decision
Neilson DCJ situated the offender's conduct within a very large fraud operation. The three primary organisers, Hawat, Haidary, and Khoder, faced charges relating to over $1 million in fraudulent applications, and between 40 and 50 further participants were being dealt with in the Local Court. The Crown selected this offender, along with two others already sentenced, for prosecution in the District Court because of their more significant involvement. Sentences imposed on comparable offenders in the Local Court, including individuals with lengthy criminal histories and those in custody at the time of sentencing, provided a reference point for Neilson DCJ's assessment of parity.
The court considered a range of mitigating factors. The offender had no significant prior criminal history, had pleaded guilty, expressed genuine remorse, and agreed to repay the $18,000 he personally received. He was experiencing mental health difficulties, including what appeared to be a depressive episode, though the court noted this likely arose from his legal predicament and could not reduce the sentence; it did, however, support the suitability of community-based treatment. The offender had also spent five months and eighteen days in pre-sentence custody, which was taken into account.
On the question of community safety, which the court identified as paramount when considering an ICO, Neilson DCJ concluded that the offender did not pose an unacceptable risk. Sentencing assessment reports assessed the offender at a medium risk of re-offending. Community Corrections assessed him as suitable for an ICO at a medium supervision level, involving fortnightly reporting, cognitive behaviour therapy, participation in an EQUIPS Foundation program, psychological monitoring, and up to 14 hours of community service work per month.
Orders Made
- The offender was convicted on each charge to which he pleaded guilty.
- Sentenced to imprisonment for two years and six months, to be served by way of intensive correction in the community.
- Conditions of the ICO:
- Must not commit any offence
- Must submit to supervision by a Community Corrections officer
- Must complete 300 hours of community service work
- Must abstain from drugs and alcohol
- Must not associate with Ibrahim Hawat or Zaman Haidary
- Must report to the Bankstown Community Corrections Office by telephone within seven days
- Ordered to pay $18,000 to the Registrar by way of compensation to the Crown, on such terms as the Registrar determines.
- Time in pre-sentence custody (five months and eighteen days) taken into account.
Key Takeaways
- The District Court treated the offender's role as more significant than the many participants dealt with in the Local Court, while still distinguishing it clearly from the primary organisers who faced charges exceeding $1 million in total fraud.
- An ICO was available despite the serious nature of the offending, where the court was satisfied that community safety would not be compromised and that the offender's rehabilitation prospects were better served in the community.
- A formal offer to repay personally retained proceeds ($18,000) was treated as a relevant mitigating factor and was given effect through a compensation order in favour of the Crown.
- Where mental health difficulties appear to have been precipitated by an offender's legal circumstances rather than pre-existing independently, they may not reduce the sentence but can still support the case for community-based orders that facilitate treatment.
- Parity with comparable offenders sentenced in other courts, including Local Court participants with worse criminal histories and greater custodial disadvantage, informed the sentencing exercise and helped calibrate the appropriate outcome.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): s 192E(1)(b) (dishonestly causing financial disadvantage by deception), s 192G(b) (dishonestly making a false statement with intent to cause financial disadvantage), s 93T(1) (participating in a criminal group)
Cases: None cited in the judgment.