CDirector of Public Prosecutions v Kousari-Rad

[2021] VCC 2085

IN THE COUNTY COURT OF VICTORIA Revised
Not Restricted
Suitable for Publication

AT MELBOURNE

CRIMINAL DIVISION

CR 21-00648
CR 21-00649

DIRECTOR OF PUBLIC PROSECUTIONS (CTH)

v

MAHIN KOUSARI-RAD & DARYOUSH KOUSARI-RAD

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JUDGE:	Her Honour Judge Hawkins
WHERE HELD:	Melbourne
DATE OF HEARING:	1 December 2021
DATE OF SENTENCE:	16 December 2021
CASE MAY BE CITED AS:	CDPP v Kousari-Rad & Anor
MEDIUM NEUTRAL CITATION:	[2021] VCC 2085

REASONS FOR SENTENCE
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Subject:CRIMINAL LAW – Sentence.

Catchwords:              Pleas of guilty – dishonestly obtain a financial advantage by deception from a Commonwealth entity – no prior criminal history – general deterrence is the paramount sentencing consideration - failure to disclose to Centrelink the purchase of a new home – Newstart Allowance – Carer's Payment – elderly couple – full repayment of moneys improperly obtained – early pleas of guilty – COVID-19 considerations taken into account – Crimes Act 1914 (Cth) s 17A threshold met.

Legislation Cited:      Criminal Code (Cth) s 134.2(1); Social Security Act 1991 (Cth) ss 593(1B), 1(C); Social Security (Administration) Act 1999 (Cth) s 66A(2); Crimes Act 1914 (Cth) ss 16A,17A, 20; Sentencing Act 1991 (Vic) s 6AAA.

Cases Cited:De Faria v Western Australia [2014] WASVA 116; Kovacevic v Mills (2000) 76 SASR 404; Ralph v Nawrojee [2003] WASCA 5; R v Cameron (SACCA, 19 July 1993, unreported); R v Hurst [2005] QCA 25; Laxton v Justice (1985) 38 SASR 377; R v Purdon (NSW CCA, 27 March 1997, unreported); DPP (Cth) v Milne [2001] VSCA 93; R v Smith [2004] QCA 417; Worboyes v The Queen [2021] VSCA 296; Chen v The Queen [2021] VSCA 175; R v Pajic (2009) 23 VR 527; Siganto v The Queen (1998) 194 CLR 656; Phillips v R (2012) 37 VR 594; Soliman v R [2021] VSCA 8; Jorissen v R [2017] WASCA 71; Ivanovic v R [2009] NSWCCA 28; R v Robertson (2008) 185 A Crim R 441; McGuinness v R [2008] NSWCCA 80; Director of Public Prosecutions v Buhagiar & Anor [1998] 4 VR 540.

Sentence:                  Both offenders were sentenced to a total effective sentence of 20 months imprisonment to be released forthwith on a recognisance order in the amount of $1,000 with the condition to be of good behaviour for a period of two years.

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APPEARANCES:	Counsel	Solicitors
For the Commonwealth	Mr A. Murphy	Commonwealth Director of Public Prosecutions
For Accused Daryoush Kousari‑Rad	Mr S. Moglia	Tony Isaacs Criminal Lawyer
For Accused Mahin Kousari-Rad	Ms S. Joosten	Tony Isaacs Criminal Lawyer

HER HONOUR:

1Mahin Kousari-Rad, you have pleaded guilty to two charges of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) of the Criminal Code 1995 (Cth).

2Daryoush Kousari-Rad, you have pleaded guilty to one charge of dishonestly obtaining a financial advantage by deception from a Commonwealth entity, contrary to s 134.2(1) of the Code.

3The offences to which you have pleaded guilty each carry a maximum penalty of 10 years' imprisonment, or a $126,000.00 'pecuniary penalty' or fine.

Circumstances of the Offending

4Through your counsel, you have both admitted the circumstances of your offending as set out in the Prosecution Opening on the Plea dated 30 July 2021.[1]  I refer to those full particulars and the following is a summary of your offending.

Payment History

[1]  Exhibit P1.

5Mahin Kousari-Rad, you received social security benefits, namely Newstart Allowance, Carers Payment and Parenting Payment Partnered from 29 August 1995.[2]  During your periods of offending, you were in receipt of Newstart Allowance and Carers Payment.[3]

[2] Ibid [7].

[3] Ibid.

6Daryoush Kousari-Rad, you were initially granted the Age Pension on 3 July 2011 and received it continuously during your period of offending.[4]

[4] Ibid [8].

7Newstart Allowance is payable to persons who are unemployed and are available and looking for work.[5]

[5] Ibid [9].

8Carer Payment is payable to eligible persons who provide full-time care in the home of a person with a severe disability.[6]

[6] Ibid.

9Age Pension is payable to eligible persons who meet the applicable residency requirements and have reached the relevant age for eligibility.[7]

[7] Ibid.

10The eligibility for all three benefits can be affected by assets which the recipient owns if the total value of those assets exceeds the threshold applicable to that payment.[8]  If the recipient is a member of a couple, the threshold is determined using the combined value of the couples’ assets.[9]  Once the combined assets of a couple is above this threshold, the recipient's payments will be reduced, eventually to a nil rate.[10]

Acquisition of Glen Waverley Property

[8] Ibid [10].

[9] Ibid.

[10] Ibid.

11On 27 August 2011, you both entered in a contract to purchase a house in Glen Waverley for $691,500.00.[11]  The legal ownership of this property was transferred to both of you on 28 November 2011, and you were both registered on title no later than 6 January 2012.[12]  This  was not your principal place of residence.[13]

[11] Ibid [13].

[12] Ibid.

[13]Ibid.

12The purchase of the Glen Waverley Property was financed in part by a $220,000.00 home loan from Westpac, secured by a mortgage over the property.[14]  You jointly paid the remaining $471,500.00 balance of the purchase price outright.[15]  Until at least 2016, the repayments on the mortgage were funded with the assistance of rental income generated by the Glen Waverley Property at the rate of approximately $2,300 per calendar month.[16]

Deception

[14] Ibid [14].

[15] Ibid.

[16] Ibid.

13Shortly before your purchase of the Glen Waverley Property on 8 November 2011, you both contacted the Department and requested to be provided with complete statements of your income and assets details as recorded with Centrelink.[17]  The statements that you received in response did not list any real estate assets besides the home in which you both lived.[18]  Neither of you sought to revise the information contained in those statements following your subsequent purchase of the Glen Waverley Property.[19]

[17] Ibid.

[18] Ibid.

[19] Ibid.

14As a result you were both clearly aware that the Department of Human Services, now known as Services Australia (‘the Department’), did not know about your purchase and joint ownership of the Glen Waverley Property.[20]

Charge 1 (Mahin Kousari-Rad) – Dishonestly obtain a financial advantage by deception from a Commonwealth entity

[20] Ibid [15].

15On 21 November 2011 you, Mahin Kousari-Rad made a claim for the Disability Support Pension.[21]  You were entitled[22] to receive Newstart on a provisional basis until your Disability Support Pension claim was determined.[23]

[21] Ibid [16].

[22]          Pursuant to sub-ss593(1B) and (1C) of the Social Security Act 1991 (Cth).

[23] Ibid.

16On 1 December 2011, you were required to lodge a Reporting Statement and Customer Declaration Form in respect of your Newstart payments.[24]  The Reporting Statement told you that you must report if you or your partner's assets changed in the period of Friday 18 November 2011 to Thursday 1 December 2011.[25]

[24] Ibid.

[25] Ibid.

17Your response to this prompt on the Reporting Statement was a declaration that you had no changes to declare for that period.[26]  This was a false declaration because you and your husband, who is also being sentenced today, had acquired joint ownership of the Glen Waverley Property during this period, which was a declarable event.[27]

[26] Ibid.

[27] Ibid.

18You accept that your omission to declare the purchase of the Glen Waverley Property was an intentional act with the purpose of deceiving the Department into believing your asset holdings remained unchanged throughout the period of the offending.

19In your Customer Declaration Form of 1 December 2011, you also declared that you and your husband owned no real estate assets other than the home that you both lived in.[28]  This too was a false declaration.

[28] Ibid [4], [18].

20On or about 2 December 2011 your Disability Support Pension claim was rejected.[29] However, you continued to receive Newstart Allowance until September 2014 on the basis of the information you provided.[30]

[29] Ibid [19].

[30] Ibid.

21As a consequence of your false declarations, between 1 December 2011 and 5 September 2014, you were paid $32,752.67.  However, you were only eligible to receive $104.00.[31]  Therefore, you received $32,648.67 in Newstart payments to which you were not entitled.[32]

[31] Ibid [28].

[32] Ibid.

22This conduct, to which you have pleaded guilty, forms the basis of Charge 1.

Charge 2 (Mahin Kousari-Rad) – Dishonestly obtain a financial advantage by deception from a Commonwealth entity

23On 22 September 2014, Mahin Kousari-Rad, you lodged a combined claim for Carer Payment and Carer Allowance.  The claim form completed by you indicated the following words:

'The [Department] will use the most recent information you have provided to assess your claim.  If you believe the information has changed, please contact [them]...' [33]

[33] Ibid [20].

24On about 21 October 2014, you were granted the Carers Payment and were transferred to that benefit based on the false information you provided about your assets on 1 December 2011.[34]

[34] Ibid [5], [20].

25As a consequence, you were paid $79,876.97 in Carer Payments.  Of this amount, you were only eligible to receive $13,478.11.[35]  Therefore, you received $66,398.86 in Carer Payments between 3 October 2014 and 27 April 2019 to which you were not entitled.[36]

[35] Ibid [29].

[36] Ibid.

26This conduct, to which you have pleaded guilty, amounts to Charge 2.

Charge 3 (Daryoush Kousari-Rad) – Dishonestly obtain a financial advantage by deception from a Commonwealth entity

27Daryoush Kousari-Rad, between 19 December 2011 and 27 April 2019 you were in receipt of the Age Pension.  You were not required to regularly report to continue to receive these benefits.[37] However, pursuant to s 66A(2) of the Social Security (Administration) Act 1999 (Cth), at all material times you remained subject to an ongoing duty to report a change in circumstance such as changes to your assets, including if you purchased real estate which was not your principal home.[38]

[37] Ibid [22].

[38] Ibid.

28During this time, you failed to advise the Department of changes in your circumstances pursuant to s 66A(2) of the Social Security (Administration) Act 1999 (Cth), namely your purchase of an investment property in Glen Waverley jointly with your wife.[39]

[39] Ibid [6], [23].

29At no point during the period of your offending did you notify the Department of your purchase of that property.  This is despite you remaining a joint owner for the duration of that period.[40]

[40] Ibid [23].

30You declared upon claiming the Age Pension that you understood your obligation to advise the Department within 14 days of any changes in your circumstances.

31You accept that your omission to declare the purchase of the Glen Waverley property was an intentional act with the purpose of deceiving the Department into believing your asset holdings remained unchanged throughout the period of the offending.

32As a result of your offending, you were paid $123,820.92 in pension payments.  However, you were only eligible to receive $34,138.58.[41]  As a consequence of your failure to advise the Department of these changes in your circumstances, you received $89,682.34 in Age Pension payments to which you were not entitled.[42]

[41] Ibid [30].

[42] Ibid.

33The conduct to which you have pleaded guilty amounts to Charge 3 on the indictment.

Obligation to Report the Glen Waverley Property

34Because the Glen Waverley Property was not your principal place of residence, it was assessable for the purpose of the social security asset test.  Accounting for the $220,000.00 value of the home loan, the assessable value of the Glen Waverley Property as at the transfer date of 28 November 2011 was $471,500.00.

35This value was significantly beyond the asset threshold of $265,000.00 then applicable to Newstart, Carer Payment and Age Pension benefits.  A historical valuation of the Glen Waverley property has confirmed that its value remained above the applicable asset threshold at all times during the periods of offending.

36Had you both correctly and promptly declared your acquisition of the Glen Waverley Property, your respective Newstart, Carer Payment and Age Pension payments would have been reduced by application of the asset test.  However, because you did not declare the Glen Waverley Property, your payments were not so reduced and the result is that you both obtained overpayments of these benefits.

Investigation

37Both of your offending was initially detected by way of data shared by another government agency on 24 October 2018 and it ceased on 27 April 2019.[43]

[43] Ibid [31].

38As part of their investigation, Services Australia wrote to both of you on 5 April 2019, inviting you to participate in a formal interview.  You declined these offers.[44]

Repayment

[44] Ibid [32].

39On 28 October 2019, being six months later, you both repaid the entirety of the charged amounts to Services Australia.[45]

[45] Ibid [33].

Personal Circumstances

40Mr Daryoush Kousari-Rad, you were born in Iran and worked at night from the age of 14 to support your daytime studies, first at school and then in electrical engineering.  You progressed into management roles in that profession.

41Ms Mahin Kousari-Rad, you grew up in a stable home in Tehran as the third eldest of seven children.  You were responsible for the care of your younger siblings while studying.  You completed your schooling at 18 and worked as a medical receptionist.

42You married in 1975, with your first child Pedram born in 1976.  Your daughter Pantea was born shortly thereafter in 1978, the same year that the Islamic Republic was established in Iran.  In the years that followed, your family was discriminated against for being of Bahai faith and you were at constant risk of harm for your religious beliefs.  Mr Kousari-Rad, you lost your employment as an electrical engineer and the children were no longer permitted to attend school.  In 1985, you left Iran and travelled through the desert to Pakistan, where you remained waiting for a refugee visa.  Your third child, Parham, was born that year.

43In 1987, your family were granted visas and migrated to Australia.  After a short while in government accommodation you rented private accommodation and then purchased a modest home.

44In 1992, Mr Kousari-Rad, you purchased a taxi licence with a mortgage and worked hard, working long hours to support your family.  You are now an Australian citizen.

45Ms Kousari-Rad, you took on the burden of home duties and became a full‑time homemaker and carer for your children.

46Your first language is Farsi or Persian and you are best assisted in English with an interpreter.

47Tragedy struck the family in 1996 when your eldest son, Pedram, was killed aged 18 in a motor vehicle accident.  Your family was devastated by the loss and have struggled ever since.

48In 2009 your youngest child, Parham, who was then aged 24, developed drug dependency issues.  You have tried to support him by seeking treatment for him and trying to help him maintain his auto business.  It was your desire to help Parham through these difficult times that led to your plan to purchase the Glen Waverley house, so that you could live just down the road from him.

49You enjoy a close relationship with your daughter Pantea, who is said to be doing well and has two daughters.

50In 2011, at age 66 years of age, Mr Kousari-Rad, you were ready to retire and made application for an aged pension.  Since retiring, you have continued to support your family, but your health has declined.  You have had cataracts removed from both eyes, and during 2020 had two admissions to Dandenong Hospital due to chest pain and a possible heart attack.  You have been found to have severe heart impairment and need to see your cardiologist four times per year.  At age 76 you require assistance with mobility.

51As a result of your age and medical conditions you would find a custodial environment more onerous than a person without your personal challenges.

52Ms Kousari-Rad, you are aged 71 and in recent years have experienced various health issues including back pain which has necessitated three surgeries, including spinal fusion.  Your mobility and functioning is still disrupted and you continue to experience pain.  You are awaiting further medical treatment.  You also have diabetes, hypertension and hypercalcaemia, which all require medication and specialised treatment.  You have also experienced grief-related anxiety and depression.

53As a result of your age, medical conditions and limited English language skills you would find the custodial environment more onerous than a person without those challenges.

Sentencing Factors

54Mr Murphy for the Commonwealth Director of Public Prosecutions prepared very detailed and helpful sentencing submissions which were supplemented by his oral submissions on the plea.  The relevant principles to be applied in sentencing for these offences are not in dispute.

55Section 16A of the Crimes Act 1914 (Cth) sets out the basic principles governing the formulation of Commonwealth sentences. The court must impose a sentence upon you that is of a severity appropriate in all the circumstances of the offence.[46]

[46]          Crimes Act 1914 (Cth) s16A(1).

56The following factors are known to the court and are relevant for consideration.

Deterrent effect of sentence and need for adequate punishment – ss16A(2)(j) to (k)

57The social security system relies on the honesty of those who rely on its benefits.[47]  The system is based on trust and it is therefore open to abuse.  Accordingly, when fraud is discovered the sentence must discourage others from similar offending and send a clear message to the community that social security fraud is a serious crime and will be sternly punished.

[47]          De Faria v Western Australia [2013] WASCA 116 [78].

58The social security system is one of the hallmarks of Australia's democracy.  The community looks after those who cannot afford to support themselves.  It does, however, come at a significant financial cost to the taxpayers of this country and the burden of fraud on the system falls to the whole community.[48]

[48]          Kovacevic v Mills (2000) 76 SASR 404; Ralph v Nawrojee [2003] WASCA 5 [25]-[27].

59Fraud undermines the integrity of the social security system,[49] it risks demonising welfare recipients,[50] leads to additional stringency, restrictions and delays being imposed on claimants for social security payments,[51] and causes injustice to legitimate recipients.[52]

[49]R v Cameron (SACCA, 19 July 1993, unreported) 4-5; Kovacevic (n 48), [37]; Nawrojee (n 48); De Faria (n 47)     [159]. 

[50]          R v Hurst [2005] QCA 25.

[51]          Laxton v Justice (1985) 38 SASR 377 381; R v Purdon (NSW CCA, 27 March 1997, unreported) at 7-8. 

[52]          Cameron (n 49), 4-5. 

60Ms Joosten for Ms Kousari-Rad and Mr Moglia for Mr Kousari-Rad accept the Crowns' submission that a sentence of imprisonment is ordinarily likely to be required in cases of sustained and deliberate fraud against the social welfare system.[53]  In cases such as yours, it is generally unlikely that mitigating factors will be of sufficient significance to outweigh the great importance of general deterrence.[54]  This is the case even where your fraud is relatively unsophisticated and lacking aggravating features such as obtaining multiple benefits, or through the use of false identities, or where the fraud is committed for the benefit of another.[55]

[53]DPP (Cth) v Milne [2001] VSCA 93 [13] (Winneke ACJ); see also Kovacevic (n 48); Nawrojee (n 48); Purdon (n 51). 

[54] Ibid.

[55]          Such as in R v Smith [2004] QCA 417.

61In your cases, Mr and Ms Kousari-Rad, given the duration of your offending and the fact that it did not cease voluntarily, your sentences must also give effect to the need for specific deterrence to dissuade you from engaging in similar dishonest conduct in the future.

The nature and circumstances of the offences – s16A(2)(a)

62Your conduct, considered as a whole, is objectively serious.  Mr Moglia and Ms Joosten in their considered and comprehensive written submissions urge the court to conclude that the nature and circumstances of your offending was not, however, at the higher end of seriousness.  They submit that your conduct was unsophisticated and you did not seek to hide it by the use of fake identities or the like.  They submit that the amount obtained annually was 'modest' and seek to diminish your non-disclosure of the purchase by describing it as an 'omission which persisted through the charge period'.  They point to your prompt reparation upon discovery of the debt.

63Whilst those submissions are both forceful and accurate, I conclude that your 'omission' was clearly deliberate, premeditated and spanned a significant period of time, being approximately seven and a half years in each case.  Your offending commenced at approximately the same time, involved similar amounts and arose out of the same event, that is, your joint purchase of the Glen Waverley Property.

64You jointly requested Income and Asset Statements on 8 November 2011 in circumstances where settlement of your Glen Waverley Property was scheduled in the near future.  This action indicates that you knew what your asset position was and that Centrelink would not be aware of your acquisition unless you declared the purchase.

65You only ceased your offending once you became aware of the fact that your ownership of the Glen Waverley Property was detected and investigated by Centrelink.

66As a result of your offending you each obtained a significant financial advantage in the sum of approximately $90,000.00 from Centrelink.

67Your counsel submit that there were stressors in your life at the time of the offending, primarily associated with your youngest son, who lived in the same street as the Glen Waverley Property and had relapsed into drug addiction.  His relationship, home and small business nearby were at grave risk.  I accept that you decided to move close to him to provide as much support as you could.

68You planned with your accountant to sell your existing home and move to that Glen Waverley Property as your principal place of residence.  Your best laid plans came unstuck when your existing house did not sell.  You instead financed the purchase of the Glen Waverley Property by selling your taxi licence, which had been disclosed to Centrelink, and taking bridging finance from the bank.  Instead of moving you took in a tenant to pay the mortgage at the Glen Waverley Property.

69Centrelink 'data matching' detected the overpayment in October 2018 and contacted you about your overpayments in April 2019.  You acted responsibly by taking advice and promptly arranging the sale of the Glen Waverley house to repay the debt.  The debts were repaid in full by 28 October 2019, being some six months later.  This is a most significant factor in the consideration of your sentence.

70Further investigation took considerable time and charges were ultimately filed 12 months after you had repaid the debt in full, on 30 October 2020, and your guilty plea was entered at committal mention on 30 March 2021.  You have had the uncertainty of this case hanging over your heads since 2018.

71The Crown submit that your offending was ‘born of greed, not need' and this is a relevant factor in determining the length of any custodial sentence.[56]

[56]          See for example R v Purdon (n 51).

72I accept that you are hardworking people who arrived in Australia with your children as refugees many years ago.  You struggled, purchased a home and a taxi licence and worked hard to raise your children and to contribute to your new country.  By the age of retirement you had reached a relatively healthy financial position.  It was not a lavish lifestyle but a very comfortable one.  You were able to contribute approximately $471,000.00 in cash to the purchase of the Glen Waverley home, financed through the sale of your taxi licence, a significant asset, and you subsequently received a rental income from that property.

73It is clear from these circumstances that you were not facing the sort of hardship that the Australian social security system was intended to alleviate.  The financial benefit you obtained was designed to maintain your financial situation.  This came at the expense of the Australian taxpayer.

74On balance, I conclude that your offending constitutes a mid-range example of these types of offences.

Contrition and utilitarian value of a guilty plea – sub-ss16A(2)(f) and (g)

75You both entered your guilty pleas at the earliest available opportunity in the course of the committal proceedings.  Your pleas of guilty have significant utilitarian benefit, particularly with the pressures which the justice system is facing as a result of the COVID-19 pandemic.  The Court of Appeal in Worboyes' case have stated that an offender pleading guilty during the pandemic ought ordinarily receive a 'palpable amelioration' in their sentence.[57]  Such discount is less significant in your case because it is clear that you entered your plea of guilty in response to the clear strength of the prosecution case.[58]

[57]          Worboyes v The Queen [2021] VSCA 296; Chen v The Queen [2021] VSCA 175.

[58]R v Pajic (2009) 23 VR 527, 532 [19]-[20] (Redlich JA); see also Siganto v The Queen (1998) 194 CLR 656, 663-4 [22]-[23] (Gleeson CJ, Gummow, Hayne and Callinan JJ); Phillips v R (2012) 37 VR 594; [2012] VSCA 140, 604 [36] (Redlich JA and Curtain AJA).

76Nor is it open to you to 'buy your way out of punishment' by prior full repayment of your debt prior to the issue of charges.  That factor is not decisive.  Your financial position was such that you had ready availability of resources sufficient to completely discharge your social security debts.[59]

[59]         Kovacevic (n 48), 421 [82]-[82] (Williams J).

77It is significant, however, that it does demonstrate that you acted responsibly once discovered that you needed to make full repayment of the debt.  This is in contrast to some of the cases I will refer to shortly.

The Offenders' character – s16A(2)(m)

78You have both lived long lives free of any prior convictions and, apart from this offending, are of good character.  Regrettably social security fraud is most often committed by people of advanced years with similar prior good character and accordingly the principal of general deterrence remains paramount.  This means that only limited weight can be placed on your prior good character.

Equal justice and relativity in sentencing

79There is a very high degree of similarity in the conduct alleged in respect of each of you.  The Crown do not, however, allege that your offending consisted of a common criminal enterprise.  Your counsel tacitly accepted that appropriate relativity between your sentences can be achieved by the imposition of sentences upon you which are broadly consistent.

Current Sentencing Practices

80I have been provided with a chart of comparable cases by Mr Murphy, which he submitted were roughly comparable to yours.

81Comparable cases provide guidelines to assist in ascertaining an appropriate sentencing range.  However, the circumstances of the offending in other cases will vary and personal circumstances will differ.

82Most recently, in Soliman's case,[60] the quantum and duration of the offending was less than is involved in your case, however involved some 123 false statements.  This is what I will describe as a 'pandemic' sentence, meaning that it was decided during the COVID-19 pandemic.  Soliman's deception was aggravated by the persistence of her deceptions after being questioned about her income declarations.  She also sought to negotiate a payment plan to repay her debt despite having sufficient funds in the bank to repay that debt.  This is contrasted to the honesty and contrition you displayed by acknowledging your debt when detected and taking immediate steps to repay it in full.

[60] [2021] VSCA 8.

83Mr Murphy for the prosecution conceded Soliman's case was slightly more serious than yours.  She received a sentence of 20 months' imprisonment with release on a recognisance release order after five months served.  That was held to be within range by the Victorian Court of Appeal.

84The pre-pandemic trial of Jorissen involved offending over an 11-year period in a quantum broadly similar to each of you.[61]He failed to declare to Centrelink that he continued to be self-employed whilst in the receipt of benefits.  He had a large number of false declarations and went to a more sustained effort to deceive than in your case.  He also sought to repay in instalments and had only repaid a small amount of the total debt at the time of sentence.  He contested the charges.  Despite his advanced years and otherwise good character, a total effective sentence of two years' imprisonment with release on a recognisance release order after 12 months was considered to be a sound exercise of sentencing discretion.

[61] [2017] WASCA 71.

85The further pre-pandemic case of Ivanovic was somewhat less serious in terms of quantum and duration but was aggravated by the use of false names, claims of false disability and the concealment of workers compensation payments.[62]  In that case the offender was sentenced to two years' imprisonment on the Commonwealth charges with release on a recognisance release order after three months.

[62] [2009] NSWCCA 28.

86The cases of Robertson[63] and McGuinness[64] were submitted by the prosecution to be the closest to your cases in terms of seriousness.  Robertson's offending continued for 26 years, more than three times the length of yours, when she failed to declare that she had married and instead continued to receive the social security pension at a single rate.  Like yours, her offending involved omission rather than positive deception, she made reparation and there was no evidence of excessive greed involved.  She was released after serving 12 months' imprisonment.

[63] (2008) 185 A Crim R 441.

[64] [2008] NSWCA 80.

87McGuiness received a benefit whilst failing to disclose her part-time employment and received an overpayment of approximately $50,000.00 over a six-year period.  She had repaid the majority of this amount at the time of sentence.  She had served four months' imprisonment at the time of her appeal and was released forthwith by the New South Wales Court of Criminal Appeal.

88With regard to these examples and current sentencing practices, particularly in the pandemic environment, it is notable that the prosecutor concedes that a term of imprisonment with immediate release onto a recognisance release order is within range.

Relevant Commonwealth Sentencing Provisions

89A sentence of imprisonment for a Commonwealth offence may only be imposed if no other sentence is appropriate in all the circumstances of the case.[65] Given the seriousness of your offending and the importance of general deterrence in your case, I am satisfied that the threshold in s 17A of the Crimes Act 1914 (Cth) has been met.

[65]         Crimes Act 1914 (Cth) s 17A.

Sentence

90Ms Kousari-Rad, on Charge 1, I convict and sentence you to a term of 20 months imprisonment.

91On Charge 2, I convict and sentence you to a term of 20 months imprisonment, to be served concurrently with the term of imprisonment imposed on Charge 1.

92Mr Kousari-Rad, I convict and sentence you to a term imprisonment of 20 months.

93Having fixed the terms of imprisonment for each of you, I turn to consider whether any alternative to immediate imprisonment, such as a wholly suspended sentence, is available and should be utilised.

94Whist your offending was protracted and resulted in the receipt of significant benefits to which you were not entitled, it was committed by omission rather than by active deception.  Your offending was unsophisticated and upon detection you acted appropriately to seek advice and repaid the debt in full as soon as you were able to raise funds.  You entered an early plea of guilty in the pandemic environment.  A sentence which requires you to serve an actual term of imprisonment would be harsher upon you than other offenders, given both the pandemic and your age, personal ill health and English language skills.  General deterrence can be achieved through the imposition of a sentence of imprisonment, even if that term is not immediately served.[66]

[66]         DPP v Buhagiar & Anor [1998] 4 VR 540.

95In the circumstances of this case with reference to the nature of your conduct, the objective seriousness of the offence, the importance of general deterrence and your subjective features I conclude that there are alternatives to immediate imprisonment.

96I direct that pursuant to s20(1)(b) of the Crimes Act 1914 (Cth), that if you consent, each of you will be released forthwith upon entering a recognisance in the sum of $1,000.00, with a condition that you be of good behaviour for a period of two years.

97Let me explain my sentences to you.  The seriousness of the offending is such that I have to sentence you to a term of imprisonment; that is a total effective sentence of 20 months' imprisonment for each of you.  However, given your compelling personal circumstances, I will order your release forthwith, which means that you do not actually have to spend any time in gaol.  If you consent, you will agree to pay $1,000.00 if you are not of good behaviour. You must be of good behaviour for two years.  This means if you commit an offence which breaches the good behaviour condition in the next two years, you will forfeit $1,000.00 and you face the risk of being resentenced on these offences.

98Now I will ask if each of you consent to this order.  I turn to counsel. 

99MR MOGLIA: On behalf of Daryoush Kousari-Rad, he will consent to the order as Your Honour proposes and understands the obligation.

100MS JOOSTEN:  On behalf of Ms Mahin Kousari-Rad, she also will accept and sign the order.

101HER HONOUR:  Thank you.  I will therefore impose the orders as I have outlined.

Section 6AAA Declaration

102I finally declare pursuant to s 6AAA of the Sentencing Act 1991 (Vic) that the sentence which the court would have imposed but for your plea of guilty is 30 months' imprisonment with release upon a recognisance of $1,000.00 after 12 months.

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