Zaky v R (Cth)

HOEBEN CJ at CL:

The maximum penalty for the offence under s 29D of the Crimes Act was imprisonment for 10 years and/or a pecuniary penalty of $110,000. The maximum penalty for each of the offences under s 134.2(1) of the Code was imprisonment for 10 years.

Her Honour sentenced the applicant to a term of imprisonment of 5 years to be released on a recognisance release order after 2½ years on entering into a bond to be of good behaviour for a period of 3 years in the sum of $5,000 self-surety. The applicant is eligible for release on 22 March 2018.

The following individual sentences were imposed:

The applicant seeks leave to appeal against sentence and relies upon a single ground of appeal as follows:

Syme DCJ made the following factual findings in accordance with an Agreed Statement of Facts. These findings have not been challenged in the appeal.

The applicant was born in Egypt in May 1953. He arrived in Australia in 1983/84 under the name Ezzat William Zaky. He was granted Australian citizenship in September 1986 in that name with that date of birth. In April 2000 he applied for and received an Australian passport in the name of Ezzat William with a different birth date.

The applicant married Manerva Zaky and had two children with her in 1988 and 1991.

In 1994 the applicant commenced claiming Centrelink benefits under the name Ezzat Zaky. He made a series of claims to Centrelink and participated in reviews of his and his wife's entitlements.

In February 1996 the applicant purchased a home at Carlisle Avenue, Mount Druitt in the name of Ezzat William.

From August 1995 (full-time from March 1996) until 2000, the applicant was employed in a teaching position with the Department of Education. He was employed under the name Ezzat William. For much of the time, he was in receipt of workers' compensation from a claim of discrimination and harassment in the workplace. He was pronounced fit to work on a part-time basis two or three days a week in 1997. In 1999 a further workers' compensation claim citing anxiety and/or depression was denied.

Between 1997 and 1999 the applicant was suffering from anxiety and depression which were the subject of a workers compensation claim. There is no documentary history at that time of a post-traumatic stress disorder diagnosis or self-report of trauma. The applicant returned to employment on a full-time or casual basis and studied for a Master's Degree and Doctorate successfully.

In October 2000 the applicant made a claim based on another work related incident. He was diagnosed with reactive depression. In November 2000 that claim was denied.

The applicant worked under the name Ezzat William as follows:

In 1999 the applicant applied for and received a parenting partner allowance.

In 1999 he lodged a review form confirming that he was not currently employed. This was false as he was employed full-time in the name of Ezzat William. He also claimed to Centrelink that he paid rent to a Dr William for the property the family was residing in. This property was owned by the applicant.

There was a continuous requirement for the applicant to advise Centrelink of any alteration in his financial circumstances. From time to time, when requested to confirm those circumstances, the applicant confirmed:

From 2007 the applicant was transferred to a Newstart allowance. He continued to confirm to Centrelink that he was not employed and was paying rent.

From June 2007 until March 2011 the applicant and his wife lodged rent certificates to allow the wife to continue to receive rental assistance for the Mt Druitt property.

In June 2010 the applicant applied for the renewal of a passport in the name of Ezzat William. This was refused when the authorities noticed that he was using dual identities. He was investigated, charges were laid and he pleaded guilty.

In 2011 the applicant transferred the Mr Druitt property to his son for $10,000, which was the amount for which it was purchased in 1996.

Centrelink conducted reviews to ensure continuing entitlement to benefits. From 1999 the applicant answered these requests for accurate information by giving false information about the family's financial circumstances, i.e. that he was not employed and that he paid rent to a landlord when in fact he owned the home. He did not inform Centrelink that he was earning income under the alias Dr Ezzat William.

In March 2014 while in receipt of a benefit under the name Ezzat Zaky, the applicant lodged a Newstart allowance claim under the name Ezzat William. He claimed that he was single and lived alone at a property in Mr Druitt. He received the allowance for about two weeks while still receiving a payment from Centrelink under the name of Ezzat Zaky and at the time was employed by the University of Sydney under the name of Dr Ezzat William.

Her Honour delivered her sentence judgment on 23 September 2015, having heard submissions on sentence over six days, commencing 12 September 2014 and concluding on 18 September 2015. At the commencement of the sentence judgment, her Honour said:

It is accepted by the Crown that there were two errors in that recital. The first is of no importance in that the s 29D offence was contrary to the Commonwealth Crimes Act. The second error, which forms the basis of the appeal, is that each of the offences carried a maximum sentence of imprisonment for 10 years not 20 years.

In assessing the seriousness of the offending, her Honour found that it involved a continuous course of conduct between July 1999 and January 2008. Between July 1999 and May 2006, parenting payments under the name Ezzat Zaky were paid into an account in his wife’s name. Between June 2007 and February 2008, Newstart payments were paid into an account in the name of Ezzat Zaky. Her Honour noted that each offence involved numerous acts by the applicant to apply for and continue receiving payments to which he was not entitled. In total he received the sum of $56,599.92.

Her Honour observed that in order to understand the background to the offending, and the degree of organisation involved, it was necessary to consider and refer to the various false identities. Her Honour noted that the applicant had created a false identity in the name of Ezzat William. Between 1983 and 1985 he obtained identification documents in the name of Ezzat Zaky, including a driver’s licence and a Citizenship Certificate. From 1991 to 1992 he obtained a identification documents in the name of Ezzat William, including a driver’s licence and Citizenship Certificate. In 1996 he purchased a property in Carlisle Street, Mount Druitt, using the name Ezzat William. He had held dual identity documents in the name of Ezzat Zaky and Ezzat William from 1992.

Her Honour took into account that the applicant was charged with offences relating to passport matters in two identities in 2010 and was sentenced. Her Honour took this into account to give context to the offences for which she was sentencing the applicant.

Her Honour found that the offending involved a calculated long term course of deception with many separate acts of deception, either by lying in interviews, filling out forms with false information and/or using documents that were false. Her Honour specifically referred to the observation of the Court of Criminal Appeal in Zaky v R [2015] NSWCCA 161 where Hamill J said at [14]: “… the deception was a sustained one and of more complexity than is often seen”. That was an appeal brought by the applicant’s wife against her sentence for an offence contrary to s 29D of the Crimes Act and an offence against s 134.2(1) of the Code.

Against that background, her Honour set out her findings as to objective seriousness as follows:

By reference to the provisions of s 16A of the Crimes Act, her Honour noted that the offending was a deliberate and sustained course of both fraudulent and dishonest behaviour over a period of nearly 8 years. The fraudulent and dishonest behaviour was committed against the Commonwealth of Australia. Her Honour noted:

The applicant did not give evidence in the sentence proceedings. Her Honour found that there was no evidence of remorse. Any concerns expressed by him to writers of reports was self-focused sorrow at the difficulties brought about by his own fraudulent behaviour over a long period of time. Her Honour did note that the applicant had repaid all the money which he stole. Her Honour also took into account the delay and prevarication on his part before agreeing to the elements of the offences. Nevertheless, her Honour allowed a 15% discount for his assistance with the facilitation of justice in entering a plea of guilty.

Her Honour was doubtful as to the effect of specific deterrence since she was having difficulty in determining whether the applicant regarded his offending as morally wrong. Her Honour did regard general deterrence as an important consideration and as a result, a custodial sentence should be imposed. On that issue, her Honour took into account that the offences were committed over a lengthy period of time with significant and detailed planning and that it was well settled that where fraud is based on greed, as it was here, a custodial sentence of some length is appropriate.

Her Honour took into account the applicant’s subjective case. He was aged 62 at the time of sentence and had no dependants. He had a criminal record for another offence of dishonesty in 1986. There was also his conviction in 2011 for falsifying travel documents. The applicant’s previous criminal record did not assist him.

A report by Dr Furst, dated 7 April 2015, was available to her Honour and Dr Furst gave evidence. A document, which had been given to Dr Furst and which was before the court, described extraordinary hardship and frightening circumstances which were endured by the applicant when in Egypt before seeking asylum in Australia. Her Honour noted that there was no independent evidence to support any part of that version of events. There was no evidence before the court that the applicant was required to do military service at the age of 30. There was no evidence to support his claims that he sought asylum in Australia as a result of being tortured or imprisoned or in trouble with the Egyptian authorities in any way.

Her Honour noted that there was some evidence before the court that the applicant was treated for anxiety and depression in the late 1990s until 2001 in that he was under the care of Dr Pickering between June 1997 and July 1999 in relation to a workers’ compensation claim against the Education Department. He had claimed harassment and discrimination in the workplace and that this harassment and discrimination had caused anxiety and depression affecting his ability to work.

Her Honour noted that the diagnosis of Dr Furst and the evidence which he gave in court was almost entirely dependent upon the applicant’s self report of the issues in Egypt, his reasons for leaving Egypt and his subsequent treatment and fear here in Australia. Dr Furst, as a result, diagnosed PTSD and opined that the long term impact of being persecuted, incarcerated and tortured in Egypt accounted for his mistrust of authority figures and apparent paranoia. Dr Furst was of the opinion that as a result of the torture which he had undergone, the applicant may have been more reluctant to contact the authorities and tell them of his changed circumstances in Australia. Dr Furst was of the opinion that the applicant’s major depression would have had an impact on his decisions and judgment at the time of the offending.

When Dr Furst was told that during the time of the offending the applicant was also working fulltime and earning up to $150,000 per annum, he revised his opinion. He also agreed that a major depressive disorder, even if it existed, would not necessarily be causally related to the offending, but it did affect judgment.

Her Honour noted that there was no documentation before the court to support that the applicant had told anyone before 2014 about his alleged torture in Egypt. This was surprising because he had seen a number of doctors over the years because of his discrimination and workers’ compensation claims. It was this torture which was said to be the basis for the PTSD diagnosis and the subsequent perceived reluctance to contact authorities.

Having analysed all of the medical evidence placed before her, her Honour concluded that most of Dr Furst’s opinion was based on a false premise and false information and as a result his diagnosis was difficult to accept. Her Honour was prepared to accept that the applicant was suffering from depression during the sentence proceedings but that this may not have been so at the time of the offending.

Her Honour set out her conclusions on the applicant’s psychiatric case as follows:

Her Honour was, however, prepared to accept that for some period of time during the offending, the applicant was suffering from a work related mental health injury for which a worker’s compensation claim was accepted. Her Honour set out her findings as to the applicant’s history as follows:

Her Honour set out the balance of her findings as to the applicant’s subjective case as follows:

Her Honour referred to a number of referees who provided statements as to his good character.

Her Honour was not optimistic about the applicant’s prospects of rehabilitation:

Her Honour found that the applicant’s fraud was based on greed. His conduct involved a wide range of fraudulent activity with various interrelated claims which were part of a complex arrangement of deceit with a great deal of planning, forethought and organisation having gone into the defrauding process over many years. Each of the offences involved a course of conduct comprising numerous acts. Her Honour was prepared to take into account the applicant’s current depression as impacting upon his time in custody and making it more difficult for him.

Although her Honour stated the incorrect maximum sentence at the beginning of her judgment, this was corrected shortly before her Honour set out the sentences which she proposed to impose:

The applicant submitted that the sentencing judge erred in setting out the maximum term of imprisonment for each of the offences under consideration, i.e. 20 years instead of 10 years. The applicant submitted that since the maximum sentence for an offence was an important guidepost, it must have influenced the sentencing judge and error of law had occurred.

The applicant relied upon the observation of Latham J in Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284 where his Honour said:

The applicant submitted that the crucial issue was whether the error which has been identified did affect or had the capacity to affect the sentence imposed. If so, the error was material and it would be necessary for this Court to proceed to resentence.

The consequences of a mistake in specifying the maximum penalty for an offence was recently considered in Hurst v R [2017] NSWCCA 114 at [143]-[150]. There Hoeben CJ at CL (with whom Price and Lonergan JJ agreed) reviewed the various statements of principle where this kind of error had occurred:

Another helpful case is Donaghey v R [2015] NSWCCA 119. There, the sentencing judge stated the maximum penalty to be 20 years imprisonment. The correct penalty was stated in submissions but at no stage during the sentencing judgment was the correct penalty referred to. The Crown submitted that the Court would be satisfied that the sentencing judge “merely misspoke the number 20 rather than 15” and that she did not sentence the applicant on the basis that the penalty was in fact imprisonment for 20 years.

It was against that background that Bellew J (with whom Bathurst CJ and Simpson J agreed) said that the position taken by the Crown:

The authorities, however, are not all one way. Bidgood v R [2016] NSWCCA 138 made it clear that whether the misstatement of a maximum penalty amounts to material error is determined by the facts of each case. An illustration of this is Stephen Leslie Newton v R [2009] NSWCCA 128 where the sentencing judge incorrectly stated the maximum penalty as 25 years when in fact it was a 20 year maximum. In that case, R A Hulme J (with whom Grove and Howie JJ agreed) said at [21]:

In that case, R A Hulme J said at [22] that he was satisfied that the statement of the wrong maximum penalty had no material bearing upon the sentence that was imposed:

R A Hulme J based that conclusion on the following:

By reference to those matters, R A Hulme J concluded at [23]:

In each of the cases referred to, the sentencing judge clearly misstated the maximum penalty. Even in Newton v R, the sentencing judge did not in terms correct herself before pronouncing sentence. That is not the situation here. This is a much stronger case from the Crown’s point of view. This is so for the following reasons:

There are some other less obvious but clear indications that when her Honour imposed sentence she was well aware of the correct maximum sentence:

For the above reasons, I am not satisfied that this ground of appeal has been made out. As with Newton v R her Honour’s incorrect specification of the maximum penalties at the beginning of her sentence judgment was an inadvertent misstatement, a slip, which did not affect the sentence which she imposed.

If I am incorrect in that assessment, and material error has occurred, it does not follow that the sentence should automatically be reduced. Pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW), it is the duty of this Court to exercise the sentencing discretion afresh, taking into account the purposes of sentencing and any statutory factors that are required or permitted (Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [42]-[43] per French CJ, Hayne, Bell and Keane JJ).

No challenge has been made to the findings of fact by the sentencing judge and in particular her assessment of the objective seriousness of the offending and the problems in the applicant’s subjective case. No question of parity arises when proper regard is had to the differences between the applicant and his wife. The applicant’s offending was much more serious, given that he was the instigator of the fraudulent conduct and was the one who devised the scheme and provided incorrect information to Centrelink.

No further information concerning the applicant, beyond that which was available to the sentencing judge, has been provided to this Court.

If I were to re-exercise the sentencing discretion in this matter, having regard to the unchallenged findings of the sentencing judge, the sentence I would impose would be no less than that imposed by her Honour.

Accordingly, the orders which I propose are:

GARLING J: I agree with the orders proposed by the Chief Judge and with the reasons which he has expressed.

BELLEW J: I agree with Hoeben CJ at CL.