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District Court 4 April 2025

R v Saab

[2025] NSWDC 123

Fraud & dishonestyPublic order & justice offences
CRIMES SENTENCE MISCONDUCT IN A PUBLIC OFFICE.

Citation: R v Saab [2025] NSWDC 123
Court: District Court of New South Wales
Date: 4 April 2025
Judge: Colefax SC DCJ

Background

The offender worked as a customer concierge operator for Service NSW between March and November 2021, a role that gave her access to sensitive personal identification information including names, addresses, dates of birth, driver's licence numbers, and passport numbers. Between July and December 2021, she transmitted that information to a co-offender via Snapchat messages. The co-offender used the data to make fraudulent claims for Commonwealth pandemic-related benefits, including Australian Government Disaster Recovery Payments, COVID-19 Payments, and Pandemic Leave Disaster Payments.

The offender faced four charges: providing personal identification information intending it be used to commit fraud (sequence 1); assisting the co-offender to dishonestly obtain a financial advantage from Services Australia by deception (sequence 2); assisting the co-offender to receive money reasonably suspected of being proceeds of crime (sequence 3); and the NSW common law offence of misconduct in a public office.

The sentence hearing was not resolved on agreed facts alone. Two significant factual disputes arose: first, whether the offender expected or received a financial reward from the co-offender; and second, whether she acted under non-exculpatory duress, claiming the co-offender had threatened to expose private information about her and her friend to their families if she did not comply.

  • Whether the Crown established beyond reasonable doubt that the offender had an expectation of reward or actually received money from the co-offender (an aggravating circumstance)
  • Whether the offender established on the balance of probabilities that she acted under non-exculpatory duress (a mitigating circumstance)
  • The appropriate sentence across four offences, including whether the sentences should be served by way of intensive corrections orders rather than full-time custody
  • How to structure the sentencing under both Commonwealth and State legislation, given the offences spanned both jurisdictions

Decision

His Honour found the disputed aggravating facts, namely that the offender expected or received payment, were not established by the Crown to the required standard and were not taken into account in sentencing. The contested non-exculpatory duress claim was supported by psychiatric and affidavit evidence, including a report from a forensic psychiatrist describing the threats made by the co-offender and the offender's vulnerability arising from her background and circumstances. His Honour accepted this claim as a mitigating factor, though it did not excuse the offending.

The sentencing calculus for the Commonwealth offences produced indicative sentences before discount of 3 years 4 months (sequence 1), 2 years 6 months (sequence 2), and 8 months (sequence 3). After applying a discount, the aggregate term for the three Commonwealth sequences was fixed at 3 years imprisonment. For the State common law offence, an indicative term of 2 years 8 months was discounted to 2 years.

His Honour ordered both terms to be served by way of intensive corrections orders rather than full-time custody. The Commonwealth sentences were governed by sections 16A and 20AB of the Crimes Act 1914 (Cth). The State sentence was governed by section 66 of the Crimes (Sentencing and Procedure) Act 1999 (NSW), with the court noting, by reference to the High Court's decision in Stanley v DPP [2023] HCA 3, that community safety is the paramount consideration when making an intensive corrections order under that Act.

The co-offender, Mr Merheb, had previously been sentenced by Hanley SC DCJ on 11 December 2023, with that sentence upheld on appeal in Merheb v R [2024] NSWCCA 145. His Honour incorporated findings from that sentencing into his reasons regarding the operation of the relevant benefit schemes.

Orders Made

  • Aggregate term of 3 years imprisonment for sequences 1, 2 and 3 (Commonwealth offences), to be served by way of an intensive corrections order commencing 4 April 2025, pursuant to sections 16A and 20AB of the Crimes Act 1914 (Cth)
  • Term of 2 years imprisonment for the State common law offence of misconduct in a public office, to be served by way of a separate intensive corrections order also commencing 4 April 2025, pursuant to section 66 of the Crimes (Sentencing and Procedure) Act 1999 (NSW)
  • Both intensive corrections orders subject to the following conditions:
  • The offender must not commit any offence
  • The offender must be subject to supervision by a Community Corrections officer
  • The offender must comply with the treatment plan recommended by the forensic psychiatrist, including attending a general practitioner with a copy of the report within 14 days
  • The offender must report in person to the Bankstown Community Corrections office by 4:00pm on Wednesday, 9 April 2025
  • Non-compliance may result in sanctions by the State Parole Authority, including formal warning, more stringent conditions, or revocation of the orders requiring full-time custody

Key Takeaways

  • The District Court treated non-exculpatory duress, where an offender acts under threats that do not provide a complete legal defence, as a mitigating factor capable of reducing sentence, provided it is established on the balance of probabilities by the offender.
  • Disputed aggravating circumstances in a sentence hearing must be proved by the Crown beyond reasonable doubt; where that standard is not met, the facts in question are excluded from the sentencing calculus.
  • A government employee who abuses database access to supply personal identification information for use in fraudulent benefit claims commits misconduct in a public office, in addition to any applicable Commonwealth offences arising from the same conduct.
  • Under the Crimes Act 1914 (Cth), there is no statutory obligation on a sentencing court to give particular weight to any specific sentencing purpose when considering an intensive corrections order, as confirmed in Vamadevan v The King [2024] NSWCCA 223.
  • Where an offender is sentenced for both Commonwealth and State offences, separate legislative frameworks govern the making of intensive corrections orders, and separate orders are required for each jurisdiction.

Legislation and Cases Referenced

Legislation
- Commonwealth Criminal Code: ss 372.1A(1), 134.2(1), 11.2(1), 400.9(1A)
- Crimes Act 1914 (Cth): ss 16A, 16A(2AAA), 20AB
- Crimes (Sentencing and Procedure) Act 1999 (NSW): s 66

Cases
- Merheb v R [2024] NSWCCA 145
- Bugmy v The Queen [2013] HCA 37
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- Vamadevan v The King [2024] NSWCCA 223
- Stanley v DPP [2023] HCA 3