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District Court 18 March 2024

R v Kosseifi; R v Sousan

[2024] NSWDC 106

Fraud & dishonesty
MULTIPLE COUNTS UP”.

Citation: R v Kosseifi; R v Sousan [2024] NSWDC 106
Court: District Court of NSW
Date: 18 March 2024
Judge(s): Sutherland SC DCJ

Background

Two co-accused, who had lived together for approximately ten years, pleaded guilty to numerous offences arising from a coordinated fraud against the State of NSW. During a five-week period in late 2021, they participated in a joint criminal enterprise that submitted 103 fraudulent applications to Service NSW targeting COVID-19 relief payments, including Micro-Business Support Grants and Test and Isolate Support Payments (TIP).

The applications used a combination of co-offenders' details and stolen identities belonging to individuals who had no knowledge of or involvement in the scheme. Police uncovered the fraud after a second-hand laptop containing incriminating email communications was handed in. A subsequent search of the offenders' shared apartment uncovered 11 mobile phones, multiple laptops, credit cards in various names, and USB drives containing details of more than 700 individual victim identities.

Of the 103 applications, 44 were successful and yielded total payments of $244,680. The remaining 59 applications were unsuccessful attempts. Both offenders were arrested in June 2022 and have remained in custody since that time. Recorded prison telephone calls later revealed admissions of guilt by each.

  • How to correctly characterise and charge the unsuccessful fraudulent applications: as attempts to obtain a financial advantage by deception (maximum 10 years) or as dishonest publication of a false statement with intent (maximum 5 years under s 192G(b) of the Crimes Act 1900)
  • Whether "rolled-up" counts were appropriate for the fraud-related offences given the number of discrete transactions and distinct victims
  • What weight to give to the offenders' personal circumstances, criminal histories, and time spent in pre-sentence custody when determining sentence
  • How to apply the totality principle, particularly where one offender had received a separate sentence for an offence committed while in custody
  • Whether special circumstances existed to justify departing from the standard non-parole period ratio

Decision

The court noted a significant charging decision affecting the unsuccessful applications. Although the Agreed Facts described them as "attempts," they were charged under s 192G(b) of the Crimes Act 1900 as dishonest publication of a false statement, which carries a maximum of five years rather than the ten years applicable to attempted fraud. The court observed that the lower maximum had to be respected at sentencing, consistent with the principle in R v De Simoni, which prevents a court from sentencing for a more serious uncharged offence.

On the question of rolled-up counts, the court distinguished between the proceeds of crime charge (sensibly rolled up to reflect the total funds received) and the 103 individual fraud counts. Because each application involved a separate act of deception and, in many instances, a different victim whose identity had been stolen, the court found it was not appropriate to consolidate the substantive fraud counts. Each warranted individual treatment.

The court took into account both offenders' personal circumstances, including disadvantaged backgrounds and prior criminal histories, but found that the objective seriousness of the offending was substantial. The scheme was systematic, technologically sophisticated, targeted a large number of victims, and exploited a relief program designed to assist genuinely struggling small businesses and individuals during the pandemic. Kosseifi was identified as having a directing role within the enterprise.

No special circumstances were found to justify departing from the statutory non-parole period ratio for either offender. For Kosseifi, the court applied the totality principle by adjusting the commencement date of the sentence to account for a separate custodial sentence she was already serving for a drug offence committed while in custody.

Orders Made

  • Margaret Kosseifi convicted on all counts to which she pleaded guilty; sentenced to 4 years and 6 months imprisonment, with a non-parole period of 3 years and 4 months, commencing 22 October 2022 and expiring 21 February 2026; additional term expiring 21 April 2027
  • Danyal Sousan convicted on all counts to which he pleaded guilty; sentenced to 4 years imprisonment, with a non-parole period of 3 years, commencing 22 June 2022 and expiring 21 June 2025; additional term expiring 21 June 2026
  • Form 1 matters taken into account on the substantive offences for both offenders

Key Takeaways

  • The District Court confirmed that where unsuccessful fraudulent applications are charged under s 192G(b) of the Crimes Act 1900 rather than as attempts, the lower five-year maximum must govern sentencing, even if the underlying conduct could have supported an attempted fraud charge carrying ten years.
  • Rolling up multiple fraud counts into a single charge is appropriate where the conduct forms a continuous course of dealing (such as receiving proceeds into connected accounts), but is not appropriate where each act constitutes a discrete transaction against a separate victim.
  • Objective seriousness can remain high even where offenders have disadvantaged backgrounds: the court weighed personal circumstances against the systematic nature of the scheme, the number of victims, and the exploitation of an emergency relief program.
  • Applying the totality principle when an offender is already serving a separate custodial sentence may result in adjustment of the commencement date of a new sentence rather than a reduction in the head sentence itself.
  • Consciousness of guilt established through recorded custodial telephone calls can form part of the evidentiary foundation considered at sentencing, even where guilty pleas have already been entered.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 192E(1)(b), 192G(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- The Queen v De Simoni (1981) 147 CLR 383
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Bugmy v R (2013) 249 CLR 571
- Calleija v Regina [2012] NSWCCA 37
- Elfar [2003] NSWCCA 358
- Fernando (1992) 76 A Crim R 58
- Harris v R [2023] NSWCCA 44
- Hughes v R [2021] NSWCCA 238
- Ishaq v R [2023] NSWCCA 178
- Kapua v R [2023] NSWCCA 14
- Kentwell v The Queen [2014] 252 CLR 601; [2014] HCA 37
- Lai v R [2021] NSWCCA 217
- Li v R [2023] NSWCCA 112
- Lou v R [2021] NSWCCA 120
- O'Brien v R [2022] NSWCCA 234
- R v Boyle [2023] NSWDC 57
- R v Cotterill [2019] NSWDC 913
- R v Dyson [2023] NSWCCA 132
- R v Hamzy (1994) 70 A Crim R 341
- R v King [2023] NSWDC 100
- R v Martin [2005] NSWCCA 190