Director of Public Prosecutions v Kilani

[2024] ACTSC 264

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Kilani

Citation: 

[2024] ACTSC 264

Hearing Date: 

27 August 2024

Decision Date: 

27 August 2024

Before:

Mossop ACJ

Decision: 

See [53]

Catchwords:

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – offender charged with attempting to obtain financial advantage by deception and dangerous driving – parties agreed on facts but disagreed on characterisation of facts – offender sought to confine extent of deceptive and dishonest representations – prosecution contended offending involved substantial degree of premeditation – more serious offending found beyond reasonable doubt – offender sentenced to total of 17 months' imprisonment, suspended after eight months, and good behaviour period of two years

Legislation Cited: 

Criminal Code 2002 (ACT), ss 44, 332

Road Transport (General) Act 1999 (ACT), ss 63, 64

Road Transport (Safety and Traffic Management) Act 1999 (ACT), s 7(1)

Cases Cited: 

DPP v Abou-Eid [2021] VCC 2106

R v Olbrich [1999] HCA 54; 199 CLR 270

Samani v The Queen [2017] ACTCA 23

Parties: 

Director of Public Prosecutions

Adam Hasan Kilani ( Offender)

Representation: 

Counsel

M Howe ( DPP)

J Lo Schiavo ( Offender)

Solicitors

Director of Public Prosecutions

Andrew Byrnes Law Group ( Offender)

File Numbers:

SCC 128 of 2022

SCC 129 of 2022

MOSSOP ACJ:

Introduction

1․The offender, Adam Hasan Kilani, has pleaded guilty to a charge of attempting to obtain a financial advantage by deception and a charge of dangerous driving.

2․The charge of attempting to obtain a financial advantage by deception is a contravention of s 332 of the Criminal Code 2002 (ACT) by operation of s 44 of the Code. The maximum penalty is 10 years’ imprisonment or a fine of 1000 penalty units or both. The charge of dangerous driving is a contravention of s 7(1) of the Road Transport (Safety and Traffic Management) Act 1999 (ACT) and carries a maximum penalty of 12 months’ imprisonment or a fine of 100 penalty units or both. There is an automatic period of disqualification of three months (Road Transport (General) Act 1999 (ACT), s 63) or longer, if the court orders (Road Transport (General) Act, s 64).

Facts

3․Unfortunately, this is a case in which, although the facts are agreed, the parties substantially disagree as to the characterisation of those facts and, hence, the seriousness of the offending.

4․The parties agree that on 27 February 2020, a collision occurred between a silver BMW convertible and a black Audi SUV. The crash occurred in daylight on a straight stretch of Eucumbene Drive in Duffy. It occurred just before 4:06pm on that day. No other cars were present when the accident occurred. The offender was driving the BMW, although he told police and first responders that he was a passenger, and his sister had been driving. He was the owner of the BMW, which was insured by NRMA Insurance. The following day, he made a claim on his insurance. The car was insured for $132,000. As part of the claim, the offender “made a number of deceptive and dishonest representations”.

5․The offender seeks to characterise the extent of the deceptive and dishonest representations as that he was not the driver of the BMW and his sister was driving at the time of the collision. It is said that the offender was unlicensed at the time of the collision and made the representation with the intention of obtaining financial advantage. The suggestion is that the accident was a genuine one and that the false representation made about who was driving was done in order to avoid any problem with the insurance claim that might arise because the driver was unlicensed. He accepts that the vehicle was over-insured but says that any conspiracy with his co-offenders in relation to an insurance claim occurred after the accident and that the accident was genuine.

6․In contrast, the prosecution contends that the car crash was staged, and the offender deliberately drove his car into the back of the stationary Audi so as to facilitate his insurance claim. That interpretation of events would involve much more serious offending.

7․It is obviously unfortunate that the details of the dishonesty that provides the foundation for the plea of guilty were not agreed at the time the guilty plea was entered. That guilty plea was entered on the day the trial was to commence. Two other offenders, the occupants of the Audi, proceeded to trial and were convicted.

8․It is necessary to resolve the dispute as to the characterisation of the agreed facts in order to sentence the offender. If the more serious conclusion, that the accident was staged, is to form the basis of sentencing, then that conclusion must be reached beyond reasonable doubt: see the High Court’s decision in R v Olbrich [1999] HCA 54; 199 CLR 270. As the conclusion is one based on circumstantial evidence, the conclusion can only be reached if the proved circumstances exclude any reasonable hypothesis consistent with the accident being a genuine one.

9․The circumstances from which the prosecution asks the court to find that the accident was not a genuine one are those contained within the Agreed Statement of Facts, as well as the evidence given by the offender at the trial of his co-offenders. In his evidence in court at that trial, the offender expressly denied that he deliberately drove his car into the back of the Audi.

10․The version of events ultimately given by the offender was that in his evidence to the court at the trial of his co-offenders, Mr Rabea Fares and his wife, who was the driver of the Audi, Ms Lina Faris. In his evidence in court, the offender said that he had spoken to Mr Fares and was there to look at a painting job in the area. He said he was waiting for Mr Fares. He said he followed Mr Fares in his vehicle. He said that he was driving at the speed limit of the street and then said he was driving at less than 60km/h. He said that he was driving and then suddenly the driver of the vehicle in front of him put her brake on, and he collided with the rear of the vehicle. He said that the driver must have braked “quickly or briskly” and that is why he crashed. He said that he tried to put the brake on but did not have enough time. He then contacted his sister and informed her of the accident. He said that he explained to his sister that he was fearful that he was disqualified from holding a licence or that his licence was suspended. He asked her to pretend that she was the driver.

11․In my view, the aggregation of circumstances is such that it excludes beyond reasonable doubt the hypothesis, as described in the offender’s evidence, that the accident was a genuine one and, therefore, establishes beyond reasonable doubt that the accident was staged. I will explain that conclusion by reference to the various aspects of the evidence which are contained in the Agreed Statement of Facts.

12․First, the BMW was very substantially over-insured. It had been purchased by the offender for $25,000 approximately 12 months prior to April 2020, that is, around April 2019. It was insured for an agreed value of $132,100. Third-party pricing data indicate that a vehicle of that model and year would be priced between $32,000 and $42,000. That over-insurance provided a motive for the offending.

13․Second, the offender knew at least one of the people in the car that he crashed into. The offender and Mr Fares had been spoken to by police in January 2018, when they were together, in relation to a painting job that they had done. In his evidence in court, the offender admitted that he and Mr Fares had done a number of painting jobs together in the past. Between 12 and 27 February 2020, there were multiple text messages and phone contacts between the offender’s telephone number and that of Mr Fares. Mr Fares called the offender on the telephone at 12:33pm on the day of the accident, and that call lasted for approximately 108 seconds.

14․Third, the offender lied about whether or not he knew those in the Audi. In a recorded conversation with police at the Canberra Hospital that evening, the offender said that he had never seen the woman who was driving the Audi before. This is not proven to be a false statement. He told an insurance investigator that he had never seen either the female driver or the male passenger of the Audi before. That statement was false in relation to the male passenger, Mr Fares. In a second police interview, he said that he did not know either of the people in the Audi (although, as a result of the accident, he had their names) and that he had never communicated with them. That statement was false insofar as it denied knowing Mr Fares and denied having communicated with him. The telling of the lies about whether or not he knew Mr Fares is consistent with a consciousness of guilt. I have taken into account the possibility that the lie might have been told to avoid a false allegation of a conspiracy, other than that actually entered into, but that appears to be unlikely and may be rejected, having regard to the overall aggregation of circumstances.

15․Fourth, the unchallenged expert evidence is inconsistent with the offender’s version of events and establishes that the Audi was stationary at the time that the accident occurred. It is an agreed fact that:

A tyre mark within the area of impact corresponded with the scrape marks left behind on the kerb, being indicative of the Audi having been stationary at the time of impact. Similarly, the distance travelled by the Audi post-impact was also consistent with the distance of a stationary vehicle being struck from behind.

16․Fifth, the version of events given by the offender was vague and unlikely. There were no details of the “job” that was to be inspected by the two men. The evidence as to the circumstances of the accident, namely, sudden braking followed by unavoidable impact, was implausible and inconsistent with the objective evidence:

(a)It was implausible because it suggests that, on an otherwise empty road, in daylight and in good conditions, the offender would be travelling closely behind the Audi and that the Audi had suddenly stopped. In oral evidence, the offender said he did not pay attention to whether or not there were any vehicles in front of the other car. There was some vague reference to a trailer. There was no evidence that the driver of the Audi provided that as a reason for the accident. In fact, there was no reference anywhere in the material to this having been reported or providing any justification for the accident.

(b)His evidence as to an unavoidable impact is inconsistent with the expert evidence which indicates that the Audi was stationary at the time of impact. Had his version of events been true, the Audi would not have been completely stationary at the time of impact; the evidence being that the driver had simply put her brakes on, rather than completely stopped in the middle of the road.

17․Sixth, the offender admits to having given a completely false story to police and an insurance investigator about his sister driving the car and him only being a passenger in the passenger seat.

18․Seventh, the version of events propounded in court during the sentence hearing, that there was a subsequent conspiracy after the accident occurred, was not supported by the evidence given by the offender in court and was difficult to square with the timing of the initial contact with his insurance company, being within minutes of the accident having occurred.

19․Taking all the circumstances together, I consider that they are sufficient to exclude beyond reasonable doubt the version of events given by the offender to the court on the earlier occasion, and propounded during the sentence hearing, that the accident itself was a genuine one.

20․The offender is, therefore, to be sentenced on the more objectively serious basis that the accident was staged and that his false representations to the insurance company and police were not limited to the fact that his sister was the driver of the vehicle at the time of the crash. Therefore, both the deception and the dishonesty were substantially greater than would have been the case had the much more limited version of events propounded on behalf of the offender been accepted as the scope of the offending.

Objective seriousness

21․The offence is charged as an attempt. That attempt was unsuccessful. As a consequence, the loss to the insurance company was substantially less than it might have otherwise been. The offending involved a substantial degree of premeditation, as it involved the planning with Mr Fares to engage in the staged accident.

22․Although the offender asserted to the authors of the pre-sentence report that he was less responsible for the offending than his co-offenders, given the self-serving nature of the statement made to the pre-sentence report authors and the lack of reliability that he admits or I have found in his statements to police, the insurance company, and the court during the trial, and the position adopted on sentencing, I cannot place weight upon those statements. He must, therefore, be sentenced simply on the basis of his proven willingness to participate in such a scheme in circumstances where there was the potential for him to gain significantly financially if it was successful.

23․The conduct involved pursuit of the scheme through the lodging of an insurance claim and the maintenance of a false version of events to police and insurance investigators. It involved the diversion of resources by police, ambulance and fire brigade, and involved undermining the system of motor vehicle insurance through the making of a false claim.

24․Overall, it is offending in the mid-range of objective seriousness for an attempt to obtain financial advantage by deception.

Subjective circumstances

25․The subjective circumstances of the offender are outlined in a pre-sentence report dated 20 August 2024 and in an intensive correction order assessment report of the same date. The offender initially failed to participate in the preparation of the pre-sentence report between December 2023 and April 2024, although, ultimately, he did cooperate sufficiently between April and August 2024 to allow a report to be prepared.

26․The offender was born in Iraq and is one of four children to his parents. His father was a diplomat, and his family moved between Iraq, Yemen, and Jordan. He had a positive upbringing. The family settled in Jordan and his father successfully sought asylum in Australia and was subsequently followed by his family. The offender moved with his mother and siblings to Australia in 2006. His brother struggled with addiction and a criminal history. His parents are elderly and in declining health.

27․He married his wife in 2010, and they have two children. His wife was diagnosed with and treated for thyroid cancer. A letter from her general practitioner, referred to below, indicates that she has needed to be admitted to Canberra Hospital for calcium infusions and is seeing an endocrinologist to adjust her medications to address tiredness and fatigue.

28․The offender and his family have lived in private rental accommodation for the past 12 years.

29․He ceased formal education during Year 9, while his family was in Jordan. He worked as a cleaner and in a school cafeteria. After moving to Australia, he was employed at the Saudi Arabian Embassy and was subsequently employed in cleaning, security, and painting. He was unemployed between 2018 and 2022 as a result of a shoulder injury suffered in a previous car accident. It is notable that the accident giving rise to the present proceedings occurred in the middle of that period, in early 2020. In 2022, he underwent shoulder surgery and has been able to return to work. He is a self-employed painter. He has a stable financial situation. He has no problems with alcohol or drugs. He has Type II Diabetes, which is managed by diet and insulin.

30․He blamed his co-offenders for the conception, planning, and execution of the offence, although no reliable evidence of their relationship or extent of cooperation in relation to the offending has been provided to the court.

31․The authors of the pre-sentence report indicate that the offender required a low level of intervention in the community. However, because of his subsequent offending, it records that “this Service holds concerns regarding Mr Kilani’s risk of reoffending should he find himself in a situation of similar financial instability”. It indicates that he would benefit from some mental health treatment to develop coping strategies and a better understanding of his own role in the commission of the offence.

32․He was assessed as suitable for community service work and an intensive correction order.

33․A bundle tendered on behalf of the offender included a letter of apology, a letter from his wife, a letter from his sister, a letter from a friend and colleague, and a letter from his wife’s general practitioner about her thyroid cancer.

34․It is not possible to place significant weight upon the letter of apology, as it does not address the circumstances of the offending as I have found them to be. I do, however, have regard to that letter and the letter from his wife in relation to the effect that a sentence of imprisonment would have upon his wife and his two children aged 10 and 12, and the support that he provides to his father and mother. The letter from his sister provides more detail about his family background and the support that he provides to his elderly parents. The letter from the friend and colleague indicates that he is reliable, hard‑working, and “very honest”. It is difficult to place weight upon that in circumstances where the author of the letter does not disclose knowledge of the facts as they have been found to be and where the evidence in the case indicates significant dishonesty.

Plea of guilty

35․The plea of guilty was entered on the day that the trial was to commence. There was limited utilitarian value in that plea in circumstances where it occurred late, and the trial of the co-offenders needed to proceed in any event. However, it is accepted that the trial was shortened as a result of his plea of guilty and a reduction in sentence of between five and 10 percent is appropriate.

Assistance to authorities

36․I do not consider that any reduction should be made on account of the offender having given evidence at the co-offenders’ trial. He merely complied with the requirements of a subpoena. I have rejected beyond reasonable doubt the version of events that he gave in that evidence.

Time in custody

37․The offender has spent no time in custody as a result of the offending.

Sentences of co-offenders

38․Rabea Fares and Lina Faris were the co-offenders. Ms Faris drove the Audi. Mr Fares was the passenger. They were sentenced by Berman AJ after a trial before a jury at which they were found guilty of three offences each:

(a)First, attempting to dishonestly obtain a financial advantage from Suncorp Insurance by deception—this related to the claim made for damage to the Audi.

(b)Second, being knowingly concerned in Mr Kilani’s attempt to dishonestly obtain a financial advantage from NRMA Insurance by deception—this relates to the claim made for damage to the BMW.

(c)Third, attempting to dishonestly obtain a financial advantage from NRMA Insurance by deception—this related to the personal injury claim made by Ms Faris.

39․Ms Faris had a minor criminal history. Mr Fares had a more significant criminal history, which included a sentence of imprisonment for committing an act of indecency. Both were sentenced on the basis that the offending was committed out of greed, rather than need. Berman AJ referred to the decision in Samani v The Queen [2017] ACTCA 23. His Honour declined to impose a sentence of full-time imprisonment on Ms Faris because of the hardship that would be occasioned to her children. However, he imposed a sentence of full-time imprisonment upon Mr Fares.

40․So far as each of the offences were concerned, his Honour imposed a sentence of one year and six months, accumulating each by three months, giving a total sentence of two years. He ordered that Ms Faris’ sentence was to be served by intensive correction.

41․So far as Mr Fares was concerned, he imposed a sentence of the same structure but served by full-time detention with a non-parole period of one year.

Comparable cases

42․I have also had regard to the decision of the Court of Appeal in Samani, which involved a fake motor vehicle accident and six offences which resulted in an aggregate sentence of two years and four months, suspended after six months. An appeal on the ground of manifest excess and failure to consider an intensive correction order was dismissed.

43․I was also referred to the decision in DPP v Abou-Eid [2021] VCC 2106. I did not consider that very lenient disposition to be useful in determining the pattern of sentencing in the Territory.

Consideration

44․General deterrence must be a very significant sentencing consideration for this kind of offending. It is reasonably easy to carry out and involves very substantial elements of dishonesty with the potential for significant financial gain.

45․While it is unlikely that, having gone through what he has gone through, the offender will engage in such conduct again, the level of dishonesty, the subsequent offending, and the failure to accept that his offending was as serious as the court has found it to be are all indicative of a need to specifically deter dishonest conduct in the future.

46․Given the level of dishonesty and the potential for financial gain, I consider that no sentence other than a sentence of imprisonment would be appropriate in the circumstances.

47․I have taken into account the significant passage of time between the commission of the offence and the final sentencing disposition. There have been a variety of causes for that passage of time. There has also been a significant passage of time since the offender was charged in December 2021, and I take into account the fact that, since being charged, he has been in a state of anticipation as to the consequences of his offending.

48․In my view, the appropriate starting point is a sentence of 18 months’ imprisonment, reduced to 17 months on account of the plea of guilty.

49․In my view, it is not appropriate to accept the submission that this should be dealt with in the community. I have taken into account the effect that imprisonment of the major breadwinner in the family will have upon his wife, children, and parents. I do not accept the submission made on behalf of the offender that it would be appropriate to characterise his circumstances as equivalent to those of Ms Faris, who was permitted to serve her sentence in the community because of her caring responsibilities for her two young children. It was submitted that the offender’s circumstances were similar because of his wife’s past thyroid cancer condition. In my view, the evidence was insufficient to establish that, although she had been successfully treated for thyroid cancer, her condition placed him in a position equivalent to that of Ms Faris. Although his wife’s medication requires adjustment from time to time and there have been occasions when she has been required to attend the emergency department of a hospital in order to address low calcium, the evidence was insufficient to establish the kind of hardship that would have been present had both parents in the co-offenders’ case been sentenced to full-time imprisonment.

50․I do not consider that an intensive correction order or wholly suspended sentence of imprisonment would adequately reflect the purposes of sentencing, in particular, the need for deterrence and denunciation of such conduct.

51․As a consequence, I consider it necessary that there be a component of full-time imprisonment. I consider that a period of full-time imprisonment is required and that the sentence is best structured as one which will involve a longer period of supervision in the community after the period of full-time detention. Therefore, the sentence will be suspended after the offender has served eight months’ imprisonment, subject to his entry into a good behaviour order with an additional condition that he be subject to supervision of the Director-General and obey all reasonable directions of the Director-General for a period of two years.

52․On the facts that I have found, the dangerous driving charge is one which is entirely subordinate to the overall scheme, and it may appropriately be dealt with by a sentence of imprisonment of one month reduced to 27 days on account of the plea of guilty. It will be wholly concurrent with the earlier sentence. I make no order in relation to the period of disqualification, which means that the automatic period of three months will apply.

Orders

53․For those reasons, the orders of the court are:

1.On the charge of attempting to obtain a financial advantage by deception (CAN 10569/2021), the offender is convicted and sentenced to imprisonment for 17 months, commencing on 26 August 2024 and ending on 25 January 2026, which is to be suspended after the offender has served eight months’ imprisonment and upon entry into an undertaking to be of good behaviour for a period of two years, with the additional condition that he be on probation subject to supervision by the Director-General and obey all reasonable directions of the Director-General for a period of two years from the date of his release.

2.On the charge of dangerous driving (CAN 10568/2021), the offender is sentenced to 27 days’ imprisonment, commencing on 26 August 2024 and ending on 21 September 2024.

3.The charge CAN 10421/2021 is dismissed.

I certify that the preceding fifty-three [53] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Chief Justice Mossop.

Associate:

Date: 11 October 2024