Zreika v R

1. [1]

   MITCHELMORE JA: I agree with Davies J.

2. [2]

   DAVIES J: On 27 April 2021, the applicant pleaded guilty in the Local Court to the following offences:

3. [3]

   A number of other offences were placed on a s 16BA Schedule in respect of Count 1 as follows:

4. [4]

   A further offence of dishonestly causing a financial disadvantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) was placed on a certificate pursuant to s 166 of the Criminal procedure Act 1986 (NSW).

5. [5]

   The applicant was sentenced by Judge Colefax SC on 8 June 2021 to an aggregate sentence of 4 years and 6 months’ imprisonment commencing 4 June 2020 and expiring 3 December 2024 with a non-parole period of 3 years expiring 3 June 2023. In relation to the offence on the s 166 certificate, his Honour recorded a conviction but did not impose a penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW).

6. [6]

   The applicant sought leave to appeal against the sentence imposed on the following two grounds:

7. [7]

   On the business day before the appeal was due to be heard the applicant filed, without leave, amended grounds of appeal together with amended submissions, adding the following grounds

8. [8]

   When the Court, at the hearing of the appeal, ascertained that the Crown did not oppose the amended appeal, leave was granted to the applicant to rely on the amended grounds of appeal.

9. [9]

   During the course of the hearing of the appeal counsel for the applicant abandoned ground 2, accepting that it was a challenge only to the weight given to specific deterrence.

The offending

1. [10]

   Counts 1, 2 and 3 involved offending in relation to the Australian Government Disaster Relief Payment (AGDRP). The AGDRP was payable to eligible Australian residents who were adversely affected by a designated natural or non-natural disaster, whether within Australia or offshore. An AGDRP claim can be made via the telephone to Services Australia.

2. [11]

   AGDRP is a one-off payment to the claimant and an additional amount for each dependent child per disaster. Given the nature of AGDRP as an emergency payment, it may be paid in instances where a claimant is unable to provide proof of identity documents at the time of the claim or proof of loss. Claimants are granted an AGDRP on the proviso that satisfactory proof of identity documents or verification is lodged within 28 days of the claim.

3. [12]

   AGDRP is paid as a fixed amount of $1,000.00 for eligible claimants.

4. [13]

   Count 1 involved 35 successful claims for payments of AGDRP between 15 January 2020 and 17 April 2020. In three cases, the applicant assumed the identity of another person and in the remaining cases he fabricated identities.

5. [14]

   For each claim, the applicant called Services Australia, and induced an operator to believe that he was a person adversely affected by a natural disaster, namely, a bushfire in either New South Wales or in Victoria. The applicant gave a false narrative in support of each AGDRP claim, and provided an address at which neither he, nor the fabricated or assumed identity, resided. In the claims where the applicant fabricated an identity, he was not a person adversely affected by a bushfire. The fabricated identity did not exist, and could not have been adversely affected by a bushfire.

6. [15]

   In the three claims where the applicant assumed an identity, the applicant was not a person adversely affected by a bushfire, nor was the person whose identity was assumed.

7. [16]

   For each claim, the applicant dishonestly obtained a financial advantage. Each AGDRP of $1,000.00 was sent via electronic funds transfer to a bank account held in the name of the applicant, and where he was listed as the sole signatory. In total, he obtained a financial advantage of $35,000.00 from the offending.

8. [17]

   Count 2 involved 17 unsuccessful claims for AGDRP made between 17 February and 23 April 2020. Again, the applicant either assumed or fabricated an identity. The claims were rejected because the applicant failed to provide sufficient identification details, and because proof of identity and proof of loss was not delivered to a Services Australia service centre.

9. [18]

   Count 3 involved a further 14 claims for AGDRP where, although the applicant dishonestly intended to obtain a gain from the claims, he did not do so.

10. [19]

    Count 4 involved a Covid-19 crisis payment. This was a new category of crisis payment introduced in response to the Covid-19 pandemic. The criteria for this crisis payment was that the claimant must be required to be in quarantine or self-isolation as a result of advice from, or a requirement made by, the Commonwealth, a state or territory, or a health professional regarding Covid-19, or was a person caring for an immediate family member or member of the claimant’s household who was required to be in quarantine or self-isolation.

11. [20]

    On or about 13 May 2020, the applicant accessed his own Services Australia account and lodged a claim for a JobSeeker payment with a claim for a Covid- 19 crisis payment. The applicant claimed that he was required to be in quarantine or self-isolation due to Covid-19 as at 6 May 2020.

12. [21]

    The following day, the applicant called Services Australia to check on the progress of his claim. He was advised to upload proof online that he was eligible for the crisis payment. He uploaded a redacted document which purported to be a “public health order”. The document was obtained from an ABC news article online published on 28 March 2020 entitled “Wrongly implemented coronavirus quarantine preventing medical staff treating patients, doctor says”.

13. [22]

    The applicant’s claim was ultimately rejected. If successful, he would have obtained $331.55.

14. [23]

    Sequences 70-72 on the s 16BA Schedule involved two claims for a JobSeeker payment and one claim for a Newstart Allowance by the applicant, using the fabricated identities he had previously used to make claims for AGDRP. The claims were rejected. If successful, the applicant would have obtained $5,597.10.

15. [24]

    Sequences 74 and 75 on the s 16BA Schedule involved two claims for rental assistance arising from the Covid-19 pandemic. The claims involved two separate addresses, one in Currowan and the other in Leumeah. The applicant successfully induced two employees of Services Australia to believe that he was eligible for rental assistance. He did not reside at the addresses he claimed. He obtained rental assistance in the sum of $458.69.

16. [25]

    Sequences 76 and 77 involved two fraudulent claims for Medicare benefits. Sequence 76 was constituted by a false claim the applicant lodged on 7 September 2019 where he uploaded an image of one itemised invoice from Australian Clinical Labs in respect of pathology services. The document was a false document to the applicant’s knowledge. He was paid a Medicare benefit of $64.95 by electronic funds transfer into a nominated bank account.

17. [26]

    Sequence 77 involved another claim the applicant made on 14 September 2019, also in relation to an alleged payment made to Australian Clinical Labs for pathology services. That claim was ultimately rejected because the applicant failed to provide a tax invoice or further details about the claim. If it had been successful he would have obtained $64.95.

18. [27]

    The offence on the s 166 certificate involved the applicant purporting to be an employee from the Department of Family and Community Services. In this guise he called the Hermitage Hotel in Campbelltown on 5 May 2020. He claimed that Yusef Zreika was a person in crisis and required accommodation in a room at the Hermitage Hotel for two nights. The Department would on occasions arrange accommodation if a person in crisis was unable to return to their place of residence.

19. [28]

    The applicant stayed at the premises for two nights without paying the amount owed for his stay. In that way he dishonestly caused the Hermitage Hotel a financial disadvantage of $512.60.

Grounds of appeal

1. [29]

   It is convenient to deal with the manifest excess ground at the conclusion of a consideration of the other grounds.

2. [30]

   In his Remarks on Sentence his Honour said:

3. [31]

   His Honour raised during sentence proceedings on two occasions about whether counsel for the applicant intended to call his client to give evidence. His counsel indicated that he was not. On the second occasion the sentencing judge said this:

4. [32]

   After the luncheon adjournment on that day, counsel for the applicant indicated that he would call his client to give evidence.

5. [33]

   The applicant submitted in this Court that the Crown did not cross-examine him to challenge his evidence regarding his troubled relationship with his father or his homosexuality. The applicant submitted that in that way he was denied procedural fairness because there was no “counter evidence” against his assertion that he was beaten by his father because of his homosexuality.

6. [34]

   The applicant relied on a decision of this Court in Rami Mohamad v Regina [2005] NSWCCA 406 which in turn relied upon a statement of Grove J in R v Ryan [2003] NSWCCA 202; (2003) 141 A Crim R 403. In Ryan, the issue was whether the applicant had left the scene of an accident because he panicked. The applicant in the present case relied on what Grove J said at [29]:

7. [35]

   The sentencing judge in that case had refused to accept that the applicant had only departed the scene as a result of panic because it was said to be backed up only by hearsay assertions made by the applicant.

8. [36]

   The significant difference in that case from the present was that it was the Crown who had tendered the statements of the police officers containing the hearsay statements. Having tendered them, the Crown did not give any indication that it did not accept what was contained in the material.

9. [37]

   In a similar manner, in Rami Mohamad it was submitted in that case on behalf of the offender that the role of the offender in a gun trafficking charge was that only of a “go-between” assisting one of his friends. His Honour rejected that submission notwithstanding a concession from the Crown prosecutor that it was not in contest. Justice Hidden (giving a judgment of the Court) said at [14]:

10. [38]

    Both of those cases are far removed from the position in the present case. The issue, as the sentencing judge made clear from the outset, was the dishonesty of the applicant, and whether his evidence could be relied upon.

11. [39]

    There was no evidence that the applicant was beaten by his father because of his homosexuality. The applicant had told Ms Anica Spatz, the psychologist, that his father physically disciplined and beat him until he was 14 years old. The first mention of the applicant being gay in the psychologist’s report was in the following paragraph when the applicant said that at the age of 17 he moved out to live with his same sex partner. The psychologist recorded that the family strongly disapproved of that matter and “allegedly threatened violence towards Mr Zreika and his partner”. It is not clear whether the threats of violence came from the applicant’s father or any of his three brothers.

12. [40]

    The applicant’s evidence before the sentencing judge was that he only disclosed his sexuality to his father when he turned 17, at the time he told his family he was moving out of the family home. Nowhere in his evidence did he say that he was beaten by his father because of his homosexuality.

13. [41]

    The applicant’s counsel also called the applicant’s sister to give evidence at the sentence proceedings. During the course of her examination in chief the sentencing judge asked her what the relationship was like between the applicant and their father when the applicant was 14 years old. She said that she did not recall. His Honour then asked if she recalled their father beating the applicant and she said she did. No further questions were asked about that by the applicant’s counsel.

14. [42]

    To the extent that the ground asserts that the sentencing judge erred in failing to find that the applicant was beaten by his father because of his homosexuality, the ground is misconceived. There was no such evidence.

15. [43]

    The other aspect of the ground is that the judge failed to find that the applicant had a dysfunctional upbringing. It is not clear if this is a separate matter from the matter of the applicant’s homosexuality and his family’s attitude to it. The particulars of the ground suggest that the two matters are interrelated.

16. [44]

    There is no reference in any of the evidence or submissions before the sentencing judge to a complaint of a dysfunctional upbringing. The transcript of the sentence hearing suggests that after the evidence was given on 27 April 21, the proceedings were stood over for further submissions to 8 June 2021, although the exchanges between counsel and his Honour might suggest that written submissions only were to be lodged. The written submissions made on behalf of the applicant made no reference to his upbringing, and it appears that it is only the sentencing judge who makes any reference to a dysfunctional upbringing when his Honour rejected it. There is no evidence from the psychologist or otherwise that the applicant had a dysfunctional upbringing, except that he told the psychologist he experienced “parental neglect there were (sic) parental favouritism and minimal care and affection towards him”. The applicant gave evidence that what he told the psychologist was true.

17. [45]

    The evidence from the applicant’s sister did not provide any support for a dysfunctional upbringing. She relevantly gave this evidence:

18. [46]

    It is possible that another basis for the assertion of a dysfunctional upbringing is the beatings the applicant received from his father. However, no such matter was put forward by the applicant.

19. [47]

    The submission by the applicant’s counsel that the Crown ought to have challenged the applicant’s evidence about his dysfunctional upbringing and being beaten by his father because of his homosexuality, should be rejected. In the first place, there was no evidence to that effect to challenge. In any event, the Crown had no basis for challenging what was contained in the psychologist’s report and what the applicant said except to suggest to him that, as with so much else in the case, his evidence should not be accepted.

20. [48]

    It was for the applicant to establish that he had a dysfunctional upbringing on the balance of probabilities. The extent of the evidence that might be thought to provide some support for it came from the psychologist’s report at par 34:

21. [49]

    That was, perhaps, slight evidence of a dysfunctional upbringing. However, as I have said, the evidence of the psychologist was not put forward to suggest a dysfunctional upbringing. Rather, the report was used to point to mental health issues, particularly related to drug-taking. Accepting what was contained in the psychologist’s report involved the sentencing judge accepting the truth of the applicant’s evidence when he had consistently lied from the time of the commission of the offences onwards, even to the point of lying in his evidence before the sentencing judge. It might have been accepted as true, consistent with what is known many gay teenagers go through with their families.

22. [50]

    Set against that evidence, even if accepted, was the evidence of the applicant’s sister at [45] above. In those circumstances, it was entirely open to his Honour to find that it had not been demonstrated that the applicant had a dysfunctional upbringing.

23. [51]

    I would reject this ground of appeal.

24. [52]

    As can be seen from the particulars in relation to this ground, the applicant submits that the interventions by the sentencing judge gave rise to a miscarriage of justice, denied the applicant procedural fairness, and gave rise to an apprehension of bias.

25. [53]

    The applicant relies on two interventions of the sentencing judge. The first occurred while the applicant was being examined in chief. To give context to the sentencing judge’s intervention, I will set out the examination in chief prior to the questions asked by his Honour.

26. [54]

    The second intervention complained about took place while the Crown prosecutor was cross-examining the applicant.

27. [55]

    The context for his Honour’s intervention was a question and answer given immediately before the Crown prosecutor indicated that she was about to move on to a different matter. The transcript reads:

28. [56]

    The applicant submitted that in both cases the questions asked by the sentencing judge were a direct challenge to him, and in that way the questioning was an egregious departure from the role of a judge presiding over an adversarial sentencing exercise. In that way the sentencing judge had entered the arena and taken the role ordinarily reserved for the prosecutor.

29. [57]

    The applicant submitted that the questioning was a direct attack on his credibility and the questions might have been interpreted by a fair-minded observer in a way that suggested the sentencing judge had prejudged the applicant’s credibility.

30. [58]

    Although in oral submissions counsel for the applicant eschewed the notion that the judge’s intervention when the applicant’s sister gave evidence formed part of ground four, the applicant’s written submissions complained of that intervention also.

31. [59]

    Again, it is necessary to set out the questioning immediately before the judge’s intervention:

32. [60]

    The applicant accepts that to succeed on this ground he needs to show that the judge’s intervention resulted in a miscarriage of justice.

33. [61]

    In Ellis v R [2015] NSWCCA 262, this Court (Bathurst CJ, RA Hulme and Garling JJ) said at [65]:

34. [62]

    One of the significant difficulties for the applicant in relation to this ground is that his credibility was a serious issue not only as a result of the index offending, and not only as a result of his prior criminal record, but because he admitted to having lied to the police and the author of the sentencing assessment report. Subsequently, he admitted that he had lied in his evidence to the Court at the sentence hearing.

35. [63]

    It is difficult to understand how there can be said to have been a denial of procedural fairness. The sentencing judge intervened to let the applicant know his concerns about evidence that he had just given, and to give the applicant the chance to explain himself. That was an entirely appropriate course. Had the judge kept his concerns to himself and subsequently made adverse findings, the applicant would have had a legitimate complaint.

36. [64]

    The particulars for this ground suggest that it was the frequency of intervention that led to a denial of procedural fairness. This aspect of the complaint is difficult to understand. In 14 pages of transcript covering the examination in chief, apart from the two questions asked by his Honour set out at [53] above, the sentencing judge made only one intervention to suggest to the applicant’s counsel that he ask a further question about a document shown to the applicant. During six transcript pages of cross-examination, the sentencing judge, besides asking the questions set out at [55] above, only intervened to warn the Crown Prosecutor about questions he was asking. It was not explained how the totality of those interventions constituted procedural unfairness.

37. [65]

    No submissions were made to explain how the judge’s questions constituted, or led to, a miscarriage of justice. Counsel for the applicant submitted that it was inappropriate for the judge to ask questions of, or to cross-examine, the applicant when that was the Crown Prosecutor’s task. Particular complaint was directed to the second group of questions at [55] above, because it was said that the applicant was forced into a corner and had to agree that he had lied to the Court.

38. [66]

    The sentencing judge said that he had a concern about the issue that the Crown had raised in relation to whether the applicant had sufficient time to make up the story he told to the police in his ERISP. His Honour said he was giving the applicant the opportunity to address that concern. At that point the applicant volunteered that he had pre-planned the story, prior to the 15 minute window he had. This was contrary to what he had said a few minutes earlier.

39. [67]

    It is not easy to understand how a miscarriage of justice occurred in the circumstances. The applicant had given evidence which the sentencing judge said he had difficulty accepting. The applicant then admitted he had lied. That does not constitute a miscarriage of justice.

40. [68]

    The applicant submitted that the sentencing judge’s questioning gave the impression of bias. The applicant relied upon what was said in Finnigan v R [2022] NSWCCA 181.

41. [69]

    In fact, the position in the present matter is remarkably similar to what occurred in Finnigan, and no reason is shown for reaching a different result here. In Finnigan, Cavanagh J (Brereton JA and Wilson J agreeing) said:

42. [70]

    For similar reasons, I do not consider that his Honour’s two interventions in the present case, arising as they did from answers given by the applicant, gave any appearance of bias or pre-judgment.

43. [71]

    Ground 4 should be rejected.

44. [72]

    The applicant submitted that four factors should have led to a lesser sentence being imposed. First, the victim with respect to the four substantive charges was the federal government as opposed to private persons. Secondly, the "system" used was not sophisticated. Thirdly, the amount of money taken was not a significant amount. Fourthly, the full duration of the offending was not of long duration, extending from 14 September 2019 to May 2020, with the substantive matters before the Court taking place between 16 January 2020 and ending in May 2020.

45. [73]

    The applicant submitted that the total of funds actually obtained by way of fraud totalled in the vicinity of $36,000.00. That consisted of the 35 payments referred to in count 1, the rental assistance in sequences 74 and 75, the Medicare benefit in sequence 76 and the housing benefit referred in the s 166 certificate. The applicant submitted that the total of the amounts attempted unsuccessfully to be obtained totalled approximately $37,000.00.

46. [74]

    The applicant submitted that an examination of the cases in this Court demonstrated that where sentences were imposed similar to the sentence imposed on the applicant all involved offences where far greater amounts of money were involved. The applicant submitted that with the findings of objective seriousness made by the sentencing judge and taking account of the amounts actually defrauded and the amounts attempted to be defrauded, the aggregate sentence was outside the range appropriate for the offending.

47. [75]

    The applicant submitted that there must have been some misapplication of principle or an error because the sentence imposed is far outside the available sentencing range.

48. [76]

    The Crown submitted that the four factors mentioned were relied upon by the applicant at the sentence proceedings and were considered by the sentencing judge in reaching his conclusion about the sentence to be imposed.

49. [77]

    The Crown submitted that the aggregate sentence did not fall outside the range of sentencing options reasonably available to the sentencing judge. The Crown submitted that when regard is had to the maximum penalty for the offences, and taking into account the offences placed on the s 16BA schedule, the sentence cannot be said to be manifestly excessive.

50. [78]

    The principles relevant to a ground of manifest excess are well known and do not need to be restated. They were well summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].

51. [79]

    Counsel for the applicant provided to the Court the Public Defenders’ table of sentences for offences contrary to s 134.2 of the Criminal Code. The sentencing judge was not provided with this table but was given the details of four cases only, only one of which was determined in New South Wales.

52. [80]

    An examination of the cases in the Public Defenders’ table demonstrates two things. First, the vast majority of the cases involved amounts far greater than are involved in the present case. Secondly, the sentences imposed in those cases that bore any comparison with the sentence imposed in the present matter involved amounts far exceeding the amounts involved in the present matter, and frequently involved offending that was well planned and committed over a much longer period of time.

53. [81]

    Before the sentencing judge, the Crown had relied on four cases. Only one, Zaky v R (Cth) [2017] NSWCCA 141, involved an amount that could be considered comparable, albeit it well exceeded the amount involved in the present case. A sentence of five years was imposed with a release on recognisance after two years and six months. However, the frauds in that case took place over a period of six and a half years, and Hamill J in the case involving the co-offender (Zaky v R [2015] NSWCCA 161) said of it: “the deception was a sustained one and of more complexity than is often seen”.

54. [82]

    In the present case the sentencing judge determined that the objective seriousness of count 1 (the successful fraud involving $35,000.00) is just below the mid-range. The other offences were said to be between the middle and the bottom of the range or at the bottom of the range.

55. [83]

    In my opinion, an examination of the cases involving offences against s 134.2 demonstrates that, for the amounts involved in the present case, the relatively short period of the offending, and the generally unsophisticated methods employed, borne out by the applicant’s failures to obtain the monies he attempted to obtain on so many occasions, the aggregate sentence imposed was manifestly excessive. It is not to be overlooked that each of the indicative sentences was reduced by 25% for the applicant’s early plea. Although this Court has said that it is not a helpful exercise to assume that the aggregate sentence should be increased by the 25% discount for the plea to reach a notional starting point, it is reasonable to infer that, had it not been for that discount accorded to the indicative sentences, the starting point for the aggregate sentence would have been higher than was imposed.

56. [84]

    The further matter is that the offence in count 4 involved an attempt to obtain an amount of $331.55. For that offence his Honour indicated a sentence of ten months’ imprisonment, reduced as result of the plea from 14 months’ imprisonment. It is difficult to see how that was an appropriate sentence in all the circumstances. Had it been the only offence charged, it is difficult to see how any term of imprisonment could have been imposed. That sentence may be compared with the sentence for the offence on the s 166 certificate (a s 10A dismissal), where a benefit of $512.60 was actually obtained. That indicative sentence is likely to have had some bearing on the aggregate sentence.

57. [85]

    For those two reasons, I consider that the aggregate sentence was manifestly excessive.

Re-sentence

1. [86]

   I would assess count 1 as being below the mid-range of objective seriousness, particularly bearing in mind the amounts involved and the period over which the claims were made. I agree with the sentencing judge on his assessment of the other counts.

2. [87]

   The applicant did not have a strong subjective case. I agree with the sentencing judge that it could not be said that the applicant demonstrated that he had a dysfunctional upbringing. There was simply conflict with his father over the applicant’s sexuality by the time the applicant was about 17 years of age. I accept that the applicant may have been physically disciplined by his father, but it is not suggested that in that way he was physically abused as that term is ordinarily understood.

3. [88]

   The applicant had excelled academically and ultimately worked as the head of creative and performing arts at a high school. He appears to have faced discrimination because of his sexuality and that seems to have worsened the depression that he suffered from about the age of 21.

4. [89]

   The applicant has been convicted of a number of offences since 2015, including offences of dishonestly obtaining a financial advantage by deception, making false representation resulting in police investigation, and shoplifting.

5. [90]

   Given the series of lies told by the applicant from the time of the offending up to and including his evidence before the sentencing judge, I agree with the sentencing judge’s findings that the applicant is not genuinely remorseful and that his prospects of rehabilitation are poor. Both specific and general deterrence are significant in the circumstances.

6. [91]

   I would make a finding of special circumstances by reason of this being the applicant’s first time in custody, the extra need for supervision on parole because of his poor prospects of rehabilitation, and his more onerous time in custody because of restrictions due to the Covid-19 pandemic.

7. [92]

   In my opinion, the following sentences are indicated:

8. [93]

   I would impose an aggregate sentence of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months. I would not interfere with the s 10A dismissal in respect of the offence on the s 166 certificate.

Conclusion

1. [94]

   I propose the following orders:

2. [95]

   HAMILL J: I agree with the orders proposed by Davies J and with his Honour’s reasons for dismissing grounds 3 and 4. In dismissing those grounds, I should not be seen to endorse the unnecessarily robust conduct of the sentencing proceedings or to suggest that a teenage boy being beaten by his father is otherwise than dysfunctional. However, for the reasons explained by Davies J, there was no procedural unfairness in all of the circumstances. I agree that ground 1 must be upheld for the reasons provided by Davies J and with the new sentence proposed by his Honour. Noting that the applicant’s non-parole period expired on 3 September 2022, I would recommend and urge the Parole Authority to give consideration to the applicant’s release to parole as a matter of urgency.