El-Chaar v R - [2007] NSWCCA 16

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: El-Chaar v Regina [2007] NSWCCA 16
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2006/1930

HEARING DATE(S): 24 January 2007

JUDGMENT DATE: 24 January 2007
EX TEMPORE DATE: 24 January 2007

PARTIES:
Joseph El-Chaar (Appellant)
Regina (Respondent)

JUDGMENT OF: Beazley JA Buddin J Hislop J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/11/053

LOWER COURT JUDICIAL OFFICER: Solomon DCJ

LOWER COURT DATE OF DECISION: 18 November 2005

COUNSEL:
C Pike (Appellant)
L Crowley (Crown)

SOLICITORS:
Commonwealth Director of Public Prosecutions (Crown)

CATCHWORDS:
SENTENCING – whether manifestly excessive sentence imposed – differences in amounts involved in individual offences not so overwhelming as to require differentiation in sentence
SENTENCING – whether insufficient weight given to motivation for offence – financial difficulties no answer to commission of offence - duress may constitute mitigating factor on sentence – duress taken into account – no error in approach of trial judge in not differentiating offences where duress involved – leading “the high life” as motivation for offence

LEGISLATION CITED:
Criminal Appeal Act 1912 (NSW) s 6(3)
Criminal Code Act 1995 (Cth) ss 11.1, 134.1, 134.1(1)

CASES CITED:
House v The King (1936) 55 CLR 499
Pearce v The Queen (1998) 194 CLR 610
R v Oblach (2005) 65 NSWLR 75
Regina v Liu [2005] NSWCCA 378

DECISION:
Leave to appeal granted
appeal dismissed.

JUDGMENT:

- 15 -

IN THE COURT OF
CRIMINAL APPEAL

2006/1930
BEAZLEY JA
BUDDIN J
HISLOP J
Ex tempore 24 January 2007

Joseph El-Chaar v Regina

Judgment

BEAZLEY JA: On 18 November 2005, the applicant was sentenced to a total period of imprisonment for eight years with a non-parole period of five years in respect of 13 offences, 12 offences being offences of dishonestly obtaining property by deception contrary to s 134.1(1) of the Criminal Code Act 1995 (Cth) (the Criminal Code Act) and one offence of attempting to obtain property by deception contrary to ss 11.1 and 134.1 of the Criminal Code Act. The maximum penalty for each offence is 10 years imprisonment.
The offences contrary to s 134.1(1) of the Criminal Code Act were committed between 12 March 2003 and 20 February 2004. The offence under ss 11.1 and 134.1 of the Criminal Code Act was committed on 25 March 2004. The total amount involved in the dishonestly obtaining property by deception offence was $1,000,688.33 (including interest). The amount involved in the attempted offence was $62,500.
The applicant pleaded guilty to the offences on 7 June 2005. However, he had admitted his guilt in relation to the charges in a record of interview with officers from the Australian Taxation Office in June 2004.
These 13 offences each related to false claims for GST (Goods and Services Tax) refunds made by the applicant to the Australian Taxation Office between the dates referred to above. During that period the applicant lodged 13 Business Activity Statements in which GST refunds were claimed but in respect of which there was no entitlement to a refund.
The background to entry into the scheme of fraudulently claiming the refunds related to a failed business venture called TTT Enterprises, of which the applicant was a director. TTT Enterprises was a financial services company which solicited investments for the purposes of re-investing and hopefully, providing for a profitable return to investors. The company had a short life and went into voluntary liquidation in about 2002, owing money to investors. It seems, however, that there were other investors who had not been formally listed in the company's records who also made demands for money as a result of the failed venture.
The scheme of making false claims for GST refunds was described by the sentencing judge, his Honour Judge Solomon of the District Court, as a “complex and sophisticated one involving a fictitious building development project to construct 117 units in the Liverpool area”. The Australian Taxation Office has a general expectation that a developer would incur substantial expenditure such as legal fees, the cost of purchasing land, planning and architectural fees, construction costs and the like before any profit is realised. The Australian Taxation Office thus anticipates that the developer will submit Business Activity Statements claiming GST refunds with respect to such expenditure prior to returning such profit. The norm for such a refund is 1/11 of the expenditure allegedly incurred. It was the Australian Taxation Office’s practice to have one of its officers verify claims by developers for GST refunds.
In the applicant's case, an Australian Taxation Office employee, Helen Mannah, who was married to the applicant's cousin, aided and abetted the applicant in making the false claims by using her position in the Australian Taxation Office to improperly process five of the first six false Business Activity Statements lodged by the applicant together with some later claims lodged by him. The pattern having been set for allowing the claims, the other officers within the Australian Taxation Office who subsequently processed claims were not on notice that there was anything amiss in respect of the applications and the claims were thus processed without the fraud being detected.
As I have said, all the claims made by the applicant were fictitious. There was never any development project nor any incurring of expenditure as claimed. The dates and amounts involved in each of the charges is set out in the following table.

Charge 1	12 March 2003	$20,145.00
Charge 2	28 April 2003	$232,772.00
Charge 3	21 May 2003	$85,600.00
Charge 4	26 June 2003	$78,368.00
Charge 5	26 July 2003	$72,526.00
Charge 6	28 August 2003	$71,560.00
Charge 7	17 September 2003	$63,409.00
Charge 8	22 October 2003	$60,000.00
Charge 9	24 November 2003	$82,000.00
Charge 10	21 January 2004	$86,550.00
Charge 11	2 February 2004	$58,500.00
Charge 12	20 February 2004	$89,090.00
Charge 13	25 March 2004 - attempt	$62,500.00

The sentencing judge imposed sentences as follows: first, in respect of counts 1-6, his Honour sentenced the applicant to imprisonment for four years to date from 18 November 2005 and to expire on 17 November 2009. His Honour next sentenced the applicant, in respect of counts 7-13, to imprisonment for four years to commence on 18 November 2009 and to expire on 17 November 2013. His Honour set a non-parole period of five years to date from 18 November 2005 and to expire on 17 November 2010.
The applicant seeks leave to appeal against sentence. The applicant raises seven grounds of appeal should leave to appeal be granted.
Ground 1: in all the circumstances of the case and upon the grounds listed below the sentence imposed upon the appellant was manifestly excessive
I propose to consider this ground at the conclusion of the consideration of Grounds 2-6 and I will consider it in conjunction with ground 7. I should perhaps add at this point, that although his Honour sentenced in the two blocks to which I have referred, it was submitted on behalf of the Crown that his Honour effectively imposed a sentence of four years in respect of charges 1-6, and then in respect of each of the charges 7-13 he imposed sentences of four years, all of which were cumulative upon the sentences imposed in respect of charges 1-6. This understanding of his Honour's sentencing structure was not disputed on behalf of the applicant.
Ground 2: the learned sentencing judge gave insufficient weight to the fact that the appellant’s motivation for the commission of the crimes to which he pleaded guilty were certain death threats towards himself and his family members stemming from a failed business venture of the appellant
The applicant contends that the sentencing judge gave insufficient weight to the fact that the applicant's motivation for the commission of the crimes were certain death threats towards himself and his family stemming from the failed business venture of TTT Enterprises.
The applicant relied upon the evidence of Andrew Gonsi, the senior Australian Taxation Office investigator, who was in charge of the investigation in that the applicant had told him that he had been threatened by persons, whom he described as “gangsters”, claiming to be owed money from the failed business.
The applicant also relied upon the evidence of his brother, Edgar El-Chaar, who had also been a director of TTT Enterprises. Edgar El-Chaar gave evidence that unbeknown to himself and the applicant, persons had invested in TTT Enterprises and who upon its failure demanded the return of their investments. Edgar El-Chaar, said the applicant had told him that demands had been made upon the applicant to pay up and that such demands had been made in “aggressive” terms. He also gave evidence that he became aware that a bullet had been left at the applicant's door together with a note and a SIM card.
There was further evidence in relation to this last incident in the form of a Police Report which had been generated when the applicant complained to Castle Hill Police, on 29 May 2001, that he had located an envelope at his front door which contained a bullet, a SIM card and a note in which money was demanded and which according to the note, if paid, would mean that there would be no further problems, but if not paid, the applicant or a family member may be harmed by way of being shot. At least from the material in the Police Report no specific amount of money was claimed in this note.
However, the police did identify a person of interest in relation to the incident who was a relative of the applicant, but who at the date of the making of the complaint was due to return to Lebanon about two weeks later.
The Police Report also noted that the police had made numerous contacts with the applicant but that from their conversations with him, "he sounds like he is stalling the police and becoming somewhat uncooperative". The Police Report concluded that the applicant did not want any police involvement in the matter.
The applicant further relied on the evidence of Thomas Keirouz, who had also been a director of TTT Enterprises and was the applicant's former brother-in-law. Mr Keirouz gave evidence that he had been present when persons had demanded money from the applicant. He gave evidence of the demands being made by a person called ‘Jack’ who at one time had been a neighbour of his parents. Mr Keirouz said that Jack had indicated that he was acting on behalf of seven people allegedly owed money and demanded approximately $300,000 from the applicant. Jack did not reveal on whose behalf he was acting.
Mr Keirouz also gave evidence that he had overheard conversations on the phone in which persons had demanded money from the applicant. He said in respect of one conversation, he had interrupted, pointing out to the caller that there had been seven directors of the company. However, the person on the other end of the phone had responded, "it has nothing to do with you, it is between me and [the applicant]. Let’s keep it between me and [the applicant]".
Again, Mr Keirouz said that no threats were made in the telephone conversation. He said, "it was like an indirect thing, which was like a Morse code". Finally, Mr Keirouz gave evidence of a meeting at the Bankstown Hotel where a number of persons again alleged that they had contracts with the failed business enterprise. Mr Keirouz said that again no direct threats were made but that "it was obvious that the applicant had to pay a certain amount of money by a certain time or, you know, it was not like you go to the courts or go see a solicitor, they did not want to do none of that stuff, that just they wanted the money paid". The evidence of Mr Keirouz was lacking in specificity and detail as to the persons involved other than Jack and the times at which these threats were made.
The applicant also relied upon the evidence of his former wife, Laura Keirouz. Apart from her evidence that she became aware that a bullet had been left at the home, her evidence was also vague as to the threats that had been made, by whom and when they had been made other than by reference to the person Jack. She did say, however, that she had lost count as “so many people come and knock on the door and ring up” and that threats had been made “so many times”.
There was also evidence in the Probation and Parole Pre-Sentence Report and in the evidence of a psychologist of the applicant reporting that threats had been made.
The applicant did not give evidence. The Court was thus in the position where it had before it direct evidence of threats having been made, including the serious threat of a bullet having been left at the door of the applicant's home, together with a note in which very specific threats were made to him and his family. However, there was no direct evidence from the applicant himself as to the impact on him that these threats had had.
There was evidence, however, from Laura Keirouz, that these threats had so affected the family that she and the children had moved to her parent’s home.
His Honour stated that he took into consideration the fact that at the time of the commission of the offence the applicant was the subject of threats in relation to the failed business and that the applicant had formed the belief that his life and that of his family was in danger. The applicant contends, however, that the trial judge failed to give sufficient weight to this factor as was apparent from the fact that his Honour, having immediately accepted that these threats had been made and that the applicant believed that his life and that of his family were in danger, contrasted those matters with the fact that the applicant though fearful for his life also led a “good life” from the proceeds of these offences.
His Honour had said that this was evidenced by the fact that the receipt for the purchase of a Mercedes-Benz motor vehicle costing in excess of $200,000 and receipts for deposits paid on four home units at the Gold Coast had been located at the applicant's residence.
The fact that a person may be motivated to commit a crime because of duress may constitute a mitigating factor on sentence, see R v Oblach (2005) 65 NSWLR 75 at [70] per Spigelman CJ and Regina v Liu [2005] NSWCCA 378 at [20], [21] and [36] per McClellan CJ at CL and Adams J at [48] and following.
The sentencing judge, in his Remarks on Sentence, clearly took this matter into account. The weight that should be given to any particular factor in the sentencing process is a matter for the sentencing judge unless it can be said that the sentencing judge placed so little weight on a relevant matter or such excessive weight on a relevant matter that the resultant sentencing fell outside the appropriate exercise of the sentencing judge's discretion, see House v The King (1936) 55 CLR 499. Unless that can be established there is no basis for appellate intervention.
In this case, the trial judge took into account the threats that had been made and that such threats had put the applicant in fear of his own life and in fear for the lives of his family. In this regard, I am of the opinion that his Honour gave full weight to the evidence which was given notwithstanding that much of it was vague and notwithstanding the fact that the evidence relating to the serious threat constituted by the leaving of the bullet, the accompanying note and SIM card at the applicant's premises had predated the offences by nearly two years, and notwithstanding that it also appears that the person who made the threats had left the country about two years previously.
I consider that his Honour accepted such evidence as there was in relation to these threats in the most favourable way possible to the applicant and no appealable error has been demonstrated in the way in which his Honour dealt with the question of duress. Accordingly, I consider that this ground should be dismissed.
Ground 3: the learned sentencing judge erred in finding that the appellant ‘led the good life from the proceeds of these offences’ when there was no or no sufficient proof that this was the case
As I have already mentioned above, the sentencing judge accepted not only that the applicant had had threats made against him but also found that he had led “the high life”. The applicant contends, however, that his Honour erred in the manner in which he made this finding in a number of respects. First, he contended that there was no evidence that the invoice for the Mercedes-Benz was anything more than evidence of a debt. Secondly, he contends that there was no evidence that any payments had been made from the proceeds of the offences.
He also submits that the Invoice for the Mercedes-Benz, which was dated 6 November 2003, to the extent that it was evidence of anything, was in respect of a transaction nine months into a 12 month criminal enterprise. Likewise, it was submitted that the evidence of the deposits in relation to units in Queensland were also made in late November 2003, late in the series of transactions which constituted the separate offences. It was submitted that if these matters were to be taken into account as matters of aggravation they could only be referable to the final four counts.
In respect of the first of the two contentions made on this point by the applicant, it is clear that the only evidence before the court was the Invoice for the Mercedes-Benz vehicle, the cheque butts in relation to the deposits for the units and the statement of facts tendered to the Court, which was Exhibit A before the sentencing judge. However, the Statement of Facts was specific in its allegation. It referred to the Retail Tax Invoice from Rick Damelian Pty Limited dated 6 November 2003 addressed to the applicant under one of his alias names, namely, Mr Joe Jean Khoury, in respect of the purchase of the vehicle.
The Crown submits that as no objection was taken to the tender of the Statement of Facts, the material before the sentencing judge was that the invoice was evidence of the actual purchase of the vehicle and was not merely the acknowledgement of a debt.
In my opinion, his Honour's conclusion was open to him for this particular reason. The trial judge after hearing the evidence stated that he was satisfied “that the applicant was under certain pressure”. His Honour then indicated his view, however, that that was not the only reason for the frauds. He said:
“I note that when his home was searched there was a retail invoice for a 2003 Mercedes-Benz P55 ANG for $236,000. He paid deposits for four blocks in the world's tallest building for $87,000. Payments to Richardson and Wrench, Surfers Paradise, for $87,000 and cheques sent to various real estate companies.”
His Honour having made that remark, counsel then appearing for the applicant responded, “that is correct your Honour”. If the applicant's case was that the money had not been used or been intended to be used for the purposes to which his Honour adverted, that would have been the occasion to have drawn to his Honour's attention that the inference that it was clear his Honour was drawing was erroneous. No such submission was made. No case was made before his Honour that the moneys had not been paid for the Mercedes-Benz or that a Mercedes-Benz had not been purchased.
In those circumstances, I consider that these arguments now put before the Court of Criminal Appeal ought to be rejected. However, that still leaves the question as to whether his Honour erred in taking into account the fact that the applicant had used the money to lead “a high life” into consideration in respect of the offences generally, or whether he was required to isolate those factors as matters of aggravation only to those offences which occurred after the date of the respective invoices. I will deal with this question later when dealing with grounds 1 and 7.
Ground 4: the learned sentencing judge erred in finding that the appellant had used some of the proceeds of the crimes to purchase a Mercedes Benz vehicle for in excess of $200,000 when the evidence before the judge did not prove that any such sum had in fact been paid to the vendor

This ground is no different from the matters with which I have already dealt with in respect of ground 3 and it is not necessary to say anything further.
Ground 5: the learned sentencing judge erred in finding that the appellant had used some of the proceeds of the crimes to pay for deposits on home units on the Gold Coast when the evidence before the judge did not prove that the deposit cheques were ever drawn upon and/or cleared
This ground is a further amplification of the matters raised in grounds 3 and 4. The applicant contended in respect of ground 5 that the only evidence relating to the use of the proceeds of the crimes to pay for the deposits on the home units was the evidence contained on the cheque butts and there was no evidence of the cheques having been deposited or cleared.
As I have already said in respect of ground 3, where no objection was taken to the Statement of Facts, when these matters were raised and no submission was made by the applicant that there was no evidence of actual payment, this ground should be rejected.
Ground 6: the learned sentencing judge gave insufficient weight to evidence that the appellant was using proceeds of the crimes to trade out of his financial difficulties
No specific submission was put in respect of this ground and I would only comment that it is no answer to the commission of a criminal offence that an offender was in financial difficulties and hoped to use the proceeds of crime to trade out of those difficulties. Nothing further needs to be said about this ground and it is rejected.
That leaves grounds 1 and 7 and the matter which still needs to be dealt with from ground 3. Grounds 1 and 7 were as follows:
Ground 1: in all the circumstances of the case and upon the grounds listed below the sentence imposed upon the appellant was manifestly excessive
Ground 7: the learned sentencing judge erred in sentencing the appellant to cumulative head sentences and in failing to provide for a degree of concurrence in the sentences imposed, given that the appellant’s criminal behaviour could properly be categorised as a single ongoing series of offences
Grounds 1 and 7 and the outstanding matter in relation to ground 3 were the matters which were principally advanced in oral argument before the Court. Those submissions can be summarised as follows. It was submitted that although there were 13 offences charged this was in fact a single criminal enterprise commencing when the first claim was made and ending when the thirteenth claim was made. It was submitted that the Crown, had it chosen to do so, could have laid one charge between the dates of the claims which were made. It was submitted that had that been done in circumstances where the maximum penalty for this offence is 10 years, the sentence imposed by his Honour could be viewed as involving a case of the worst possible category when this was clearly not so.
In my opinion, this submission does not advance the applicant's case. There were, in fact, 13 separate charges. Each matter had to be dealt with separately by his Honour. There were 13 separate criminal acts each made on a specific occasion, each involving a separate claim and each requiring the applicant to turn his mind on each occasion to the precise claim which was being made and the precise expenses in respect of which the claim was being made. Each act was specific and premeditated. This was not a case, as is often the position where there is a single criminal enterprise, where matters occurred at a time close in point of time and usually part of the same act of criminality. I would reject the arguments made on behalf of the applicant in this regard.
The second and third submissions put forward can be dealt with together. They amount to a submission that his Honour failed to differentiate between the different charges. The differentiation, it was said, should have been made in two respects. The first related to the sentences imposed. His Honour imposed the same sentence in respect of each offence notwithstanding differences in the amounts involved. In particular, the first offence involved an amount of just over $20,000 whereas the second offence involved an amount of over $200,000. Those amounts, in turn, were different from the amounts involved in the third to thirteenth offences which involved a more uniform range of claims from about $60,000 to about $90,000.
The second matter relied upon was that his Honour should have differentiated between those offences which, on his Honour's finding, were affected by pressure which would have been likely to have involved the first five or six offences and those which occurred thereafter when there was evidence accepted by his Honour that demonstrated that the applicant had used the proceeds to lead “the good life”.
That evidence related to the motor vehicle to which I have already referred, the deposits paid on the units on the Gold Cost, to which I have also referred, as well as to evidence before his Honour of overseas trips made by the applicant commencing in September 2003.
Before dealing with the precise submission, which I understood was to be made in respect of those matters, it is appropriate to consider the submission that the sentences themselves were manifestly excessive. The total sentence imposed by his Honour was, as I have already said, eight years with a non-parole period of five years.
These offences were serious in their nature. They were premeditated. The criminal conduct continued over a lengthy period of time. The modus operandi, as the sentencing judge identified, was “sophisticated”, involving inside assistance from an officer of the Australian Taxation Office who was a relative of the applicant by marriage. Each offence involved application and consideration by the applicant.
In addition, at the time of the offending the applicant was on a bond in respect of an earlier offence of dishonesty. The total sum involved was significant, being over $1,000,000 and the individual sums in themselves were significant. In those circumstances, the overall effective sentence imposed by his Honour was not manifestly excessive, nor was the non-parole period.
This was a difficult sentencing exercise involving multiple frauds. There was some differentiation between the offences but not such as to be so strikingly overwhelming as to necessarily require a different sentence to be imposed in respect of those offences in respect of which the point of differentiation could be made, those differences being, as I have indicated, the difference in quantum between the first and second offences in particular and those in respect of which there was also some personal gain involved.
Accordingly, if as I understand the submission that was made, his Honour offended the principles laid down by the High Court in Pearce v The Queen (1998) 194 CLR 610. However, for the reasons I have indicated, I do not think that his Honour did err. Even if there should have been some differentiation between the charges the effective overall sentence imposed by his Honour was appropriate and this case is not one where some lesser sentence or sentences was warranted in law, see s 6(3) of the Criminal Appeal Act 1912 (NSW).
In those circumstances I would propose that leave to appeal be granted but I would dismiss the appeal.
BUDDIN J: I agree.
HISLOP J: I also agree.
BEAZLEY JA: The orders of the Court are as I have proposed.

**********
AMENDMENTS:

07/02/2007 - Incorrect case name - Paragraph(s) Title

LAST UPDATED: 7 February 2007