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District Court 7 May 2025

R v Abbas

[2025] NSWDC 168

Fraud & dishonesty
STRONG SUBJECTIVE CASE

Citation: R v Abbas [2025] NSWDC 168
Court: District Court of New South Wales
Date: 7 May 2025
Judge(s): Newlinds SC DCJ

Background

The offender, an NDIS service provider, submitted 50 false payment requests to the National Disability Insurance Agency (NDIA) between February 2019 and February 2020. She controlled two companies registered as NDIS providers and used that access to claim payment for services she knew had never been provided to eight NDIS participants. One of those participants had no connection whatsoever to her or her companies.

The total value of the false claims, and therefore the total intended financial gain, was $214,973.93. The Commonwealth's actual loss was ultimately agreed at $53,011.68, with the offender consenting to a reparation order in that amount. On the morning of sentencing, her family raised $26,000 as a part payment.

The offender pleaded not guilty initially and was committed for trial. She entered guilty pleas on 24 October 2024 after the indictment was amended, resulting in two counts under s 135.1(1) of the Criminal Code Act 1995 (Cth), which carries a maximum penalty of 10 years imprisonment. She had no prior criminal history and presented a moderately strong subjective case, including diagnosed PTSD and major depressive disorder.

  • What was the objective seriousness of the offending, having regard to the scale, planning, and sophistication involved, and the nature of the victim as a Commonwealth entity?
  • What weight should be given to the offender's mental health conditions as affecting her culpability and motive?
  • Whether the actual financial loss or the intended gain was the more appropriate measure of the offending's gravity.
  • What aggregate sentence was appropriate under Commonwealth sentencing principles, including the totality principle?
  • Whether a period of actual custody was necessary, or whether an alternative sentencing arrangement was available.

Decision

Newlinds SC DCJ found the offending to be objectively serious, rejecting the defence characterisation of it as opportunistic or at the lower end of gravity. The judge emphasised that the charges were framed around the intent to obtain a gain, and that the intended gain of over $200,000 was significant regardless of how much was ultimately retained. The 50 separate fraudulent acts, each individually planned and deliberate, carried out over 12 months, pointed to meaningful sophistication and planning.

The court accepted that the offender's PTSD and major depressive disorder impaired her decision-making but did not treat those conditions as displacing the fundamentally financial motive for the fraud. The judge also noted that the funds taken were not just from the Commonwealth's general budget but from money specifically allocated to support NDIS participants, giving the offending an additional dimension of harm to a vulnerable cohort.

On the subjective side, the court accepted the offender's otherwise unblemished criminal record, her mental health conditions, her guilty plea (attracting a 10% reduction), her part payment of reparation on the morning of sentencing, and other personal circumstances as meaningful mitigating factors. These were sufficient to bring the sentence below what might otherwise have applied for offending at this level of objective seriousness.

Applying the totality principle to the two counts, and taking into account the requirement under s 17A of the Crimes Act 1914 (Cth) that imprisonment only be imposed where no other sentence is appropriate, the court determined that a period of actual custody was necessary. An aggregate term of three years was imposed, with the offender to be released after serving approximately one year, upon entering a recognizance release order.

Orders Made

  • The offender is sentenced to an aggregate term of imprisonment of three (3) years, commencing 2 May 2025 and expiring 1 May 2028, in respect of Counts One and Two (after a 10% reduction for guilty pleas).
  • The offender is to be released on 1 May 2026 upon entering a recognizance pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth), in the sum of $100 without security, for a period of two years.
  • The recognizance conditions require the offender to: be of good behaviour; be supervised by a probation officer; obey all reasonable directions of that officer; and follow the Treatment Plan recommended by Mr Attai (as set out in his report of 15 March 2025, or as amended by him in writing).
  • Pursuant to s 21B of the Crimes Act 1914 (Cth), the offender is to pay reparation to the Commonwealth in the sum of $51,733, to be reduced by $26,000 (the amount paid on the day of sentencing, subject to the cheque clearing).

Key Takeaways

  • The District Court confirmed that the appropriate measure of gravity in a Commonwealth fraud case is not limited to the actual loss suffered. The intended gain, here over $200,000, carries independent and significant weight because the charges are framed around dishonest intent.
  • Fraud against a Commonwealth entity responsible for funding disability support services carries a specific dimension of harm: money misappropriated is money removed from a scheme designed to benefit vulnerable participants.
  • A diagnosed mental health condition (here, PTSD and major depressive disorder) may reduce an offender's moral culpability and affect the weight given to their motive, but does not eliminate criminal responsibility where the offender acted with a clear financial purpose.
  • Under s 17A of the Crimes Act 1914 (Cth), a sentencing court must be satisfied that no other sentence is appropriate before imposing imprisonment for a federal offence. Here, the objective seriousness of 50 planned fraudulent acts over 12 months meant actual custody was required, notwithstanding a strong subjective case.
  • Part payment of reparation made on the morning of sentencing, even where funded by family members rather than the offender personally, remains a relevant mitigating factor in Commonwealth fraud sentencing.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 135.1(1)
- Crimes Act 1914 (Cth), ss 16A, 17A, 20(1)(b), 20AB, 21B

Cases
- Barbaro v The Queen [2012] VSCA 288
- Dickson v R [2016] NSWCCA 105
- Director of Public Prosecutions (Commonwealth) v Rowson [2007] VSCA 176
- DPP (Cth) v De La Rosa (2010) 79 NSWLR 1
- Filippou v The Queen (2015) 256 CLR 47
- McGregor v R [2024] NSWCCA 200
- Parente v R (2017) 96 NSWLR 633
- R v Abboud [2005] NSWCCA 251
- R v Annecchini (unreported, NSWCCA, 24 April 1996)
- R v Holdsworth [1993] QCA 242
- R v McNaughton (2006) 66 NSWLR 566
- R v Rice (2004) 150 A Crim R 37
- Ryan v R [2024] VSCA 74
- Scook v R [2008] WASCA 114
- Totaan v R [2022] NSWCCA 75
- Veen v The Queen (No 2) (2001) 206 CLR 267
- Xiao v R [2018] NSWCCA 4