Hilmi v The Queen

[2019] NSWSC 1117

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	Hilmi v R [2019] NSWSC 1117
Hearing dates:	14 August 2019
Date of orders:	27 August 2019
Decision date:	27 August 2019
Jurisdiction:	Common Law
Before:	Garling J
Decision:	Release Application dismissed
Catchwords:	BAIL – release application – no show cause requirement – strength in prosecution case – risk that applicant will commit further offences
Legislation Cited:	Bail Act 2013 Criminal Code Act 1995 (Cth) Proceeds of Crime Act 2012 (Cth)
Cases Cited:	Nil
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Amal Hilmi (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
Representation:	Counsel: L Randle (Applicant – 14.8.19) S Joyner (Applicant – 27.8.19) A Ditton (Respondent)   Solicitors: Matouk Joyner Lawyers (Applicant) Commonwealth DPP (Respondent)
File Number(s):	2019/212092

Judgment

1. This is an application for bail by Amal Hilmi.

Offences

2. Ms Hilmi was arrested and charged on 22 May 2019, and has been in custody since that time. She is charged (together with five co-accused) with two offences. The first offence is contrary to s 135.1(1) of the Criminal Code Act 1995 (Cth) (“the Criminal Code”), namely, dishonestly obtaining a gain in the 12 month period between 17 December 2017 and 18 December 2018 from the National Disability Insurance Agency (“NDIA”); secondly, an offence contrary to s 409(1) of the Criminal Code, namely, that between 17 December 2017 and 18 December 2018, she did possess money or other property reasonably suspected to be the proceeds of crime to the value of $100,000 or more.

3. The co-accused are Alaedine Rifai, who is the applicant's partner and father of their child Youssef, who was born in October 2018. Mr Rifai was arrested and charged with the same offences and is presently in custody; the second co-accused is her brother Mostafa Hilmi. He is also charged with the same offences as the applicant and is presently in custody; the third co-accused is another brother of the applicant, Alhassane Hilmi. He is charged with the same offences as the applicant and is also presently in custody. There are two other individuals who are charged with the same offences, Michelle Ross, who is the applicant's sister-in-law, and Sumaiah Alshakhshir, who is the partner of one of the applicant's brothers. Ms Alshakhshir is also charged with an additional offence against s 137.1 of the Criminal Code. Neither of these last two co-accused are in custody - one has been granted conditional bail by police, and the other was issued with a Court Attendance Notice.

Bail Concerns

4. The offences with which the applicant is charged are not show cause offences and are therefore to be dealt with pursuant to Div 2 of Pt 3 of the Bail Act 2013 (“the Bail Act”). Pursuant to s 17 of that Act, the Commonwealth DPP (“the DPP”) raises two bail concerns, namely, that the applicant may fail to appear at any proceedings for the offences against her and, secondly, if released on bail she may commit a serious offence. The DPP submits that any proposed bail conditions would not mitigate the unacceptable risk of those concerns and, accordingly, bail should be refused.

5. In considering whether or not a bail concern constitutes an unacceptable risk, this Court is constrained to consider only the matters in s 18 of the Bail Act.

Relevant Considerations

6. The first matter to be considered under the Bail Act is the background of the applicant including her criminal history, circumstances and community ties. The applicant was born in 1984 and is now 35 years old. She has no previous criminal history and is a member of a large family. She is one of six children, two of whom are her co-accused. She migrated to Australia with her family when she was about 6 years old. She grew up and was schooled in Melbourne and attended, although she did not complete, a university degree at Swinburne University. As I have earlier noted, she is the mother of a 10 month old child who was born in October 2018, and it is said on her behalf that her usual occupation is in family day care. Apparently, she was authorised by the NSW State Government to care for children in her home. There is, however, no material as to whether in fact she was doing that at the time of her arrest or during the 12 months when the offences are alleged to have been committed.

7. It is necessary to consider the nature and seriousness of the offences, together with the strength of the prosecution case. The principal offence, dishonestly obtaining a gain, carries a maximum penalty of 10 years imprisonment or a significant fine, or both. The second offence, money laundering, carries a maximum penalty of 3 years imprisonment or a fine. Whilst both offences are serious, it is clear from the maximum penalties that the offence of dishonesty is of particular seriousness.

8. The prosecution case is that the applicant, together with her co-accused, engaged in a course of conduct by which claims were made on the National Disability Insurance Agency, and moneys were received by the applicant or an entity which she controlled, upon the basis that the claims were true and correct. In truth, the prosecution says that the claims were false and thereby fraudulent. It seems as best can be demonstrated at the moment, that the total of this fraud was in excess of $1.8M. As I have earlier noted, it is said that the fraud took place over period of 12 months. The prosecution will contend at trial that the applicant had a principal role in the overall scheme of offending.

9. The prosecution's case is that it was this applicant who undertook the computer entry work necessary to perpetrate the frauds. The consequence of the fraudulent activity was that disabled individuals who had entitlements pursuant to the National Disability Insurance Scheme (“NDIS”) scheme were left without access to funding which caused them significant hardship. They were left without access to funding because, on the prosecution's case, the applicant and her co-accused had taken the money, by submitting false claims to it.

10. The prosecution submits that its case is very strong. The fraudulent nature of the claims made by the applicant are based on the evidence of participants or their carers who confirm that they had either never heard of the relevant provider company which had been set up by the applicant, or else they had never received the services allegedly provided by that registered provider company. The systems in place at the NDIA confirm that the payments were made and banking documents confirm receipt of funds.

11. All of this appears relatively straight forward to me and suggests a very strong prosecution case.

12. Even if I was not convinced of that, the prosecution has provided in summary form on this bail application, a series of messages sent by, or received by the applicant as either texts or else as part of a WhatsApp group. At the very start of the period covered by the charges there is a message from the applicant to her partner and co-accused Mr Rifai, which includes these words "NDIS is ours not yours"; "We went in 50/50". Mr Rifai replied, "Take it all. I'm out", "Go do it from home". The applicant replied, "I will take it", "You know NDIS is ours". Messages to a similar effect continued to be sent.

13. On 18 December 2017, the applicant sent a message to Mr Rifai saying, "I am sorry I got everyone involved". Further, she said "No babe. I wanted NDIS the two of us together”, "I hope you can help me in the meantime until I get set up and you'll get 50%". There are further text messages about the identification of user names and passwords to access the NDIA scheme.

14. On 11 January 2018, the applicant sent a message to Mr Rifai saying:

"We don't have any money. I'm going to charge Michael twice today and Kim another $1,000. What's your user name and password for NDIS. I want to process payments from home."

15. Information exists that shortly after that message, and on the same day, claims were made for $2,000 in respect of the two named NDIS participants.

16. On 5 July 2018, the applicant sent a message to Mr Rifai saying, "We have $40,000 tomorrow". Later that day the applicant logged into the NDIS system and processed 11 payments from the plans of nine different NDIS participants to a company set up by her and her co-accused totalling $45,000. Shortly after that occurred the applicant messaged Mr Rifai saying, "I made $44,000. LOL".

17. On 29 July 2018, Mr Rifai sent a link to the applicant for a classified advertisement for a Mercedes Benz vehicle followed by the statement, "Babe. Make $60,000 this week I'll buy it for you". Two days later the applicant messaged Mr Rifai "Babe, I just found a big one $43,000". Mr Rifai replied, "Wow, you take it all". The applicant replied, "Yes, she had 55K but I don't feel good about this one".

18. It seems that the activities of the applicant came to the notice of the NDIA. On the same day as the message to which I have just referred was sent, the applicant messaged Mr Rifai saying "We just got our first call. Yes, NDIS. Had to refund 4K. I just cancelled it". The message went on to say. "We will all get Rolexes when we hit the million. It will take a month". About two weeks later Mr Rifai messaged the applicant, "Have you made $$$"? The applicant replied "Yes, I did 59K". Mr Rifai replied, "Good girl. So which car you want"?

19. On the same day a payment of $59,100 was made by the NDIS to the applicant's company, and on the following day $83,000, was spent on the purchase of a Porsche Cayenne motor vehicle.

20. It is unnecessary to further recount the messages that have been retrieved by the prosecution. It is clear that the applicant and her co-accused were fully informed about what they were doing and the possible consequences of it. They were conscious that NDIA staff would audit them, and that they were taking money without any claim of justification for it. It is also plain from the text messages that the considerable sums received by the applicant and her partner were spent on purchasing land including in Indonesia. These text messages, together with the material which I have previously referred, make it plain that the prosecution case, in my assessment, is an overwhelming one.

21. If convicted of the principal offence, which in my assessment is likely, having regard to the conscious, blatant and deliberate nature of the fraud, even allowing for the fact that the applicant has no criminal history, it is likely that the applicant would receive a significant custodial sentence of many years.

22. If the applicant is not granted bail and if the proceedings go through to the hearing of a joint trial involving all six accused, that is, assuming none of the accused plead guilty, then it is likely that a trial would not take place before the final quarter of 2020. By that time the applicant will have been in custody for about 18 months. I take into account that this is a considerable period of time.

Applicant’s Submissions

23. The applicant submitted that she is entitled to be free for lawful purposes. These are set out in a written outline of submissions made on her behalf. The first of those is the need for her to have access to care for her infant son; secondly, the need to make arrangements for a long-term plan for the care of her son, given that her mother who looks after him is not in good health; thirdly, hardship suffered by the family given the limited time of visits available for them to visit the applicant at her current place of custody; fourthly, the common law presumption of innocence and general right to be at liberty. In addition, in oral submissions, it was submitted on behalf of the applicant, that given the likely size of the prosecution brief, about 23 folders, the applicant would have difficulty accessing that in custody particularly if, as well as being on paper, the brief is electronic.

24. It is undoubted that the applicant's separation from her young child whilst in custody and the limited facilities for visitation is a matter of considerable concern to the applicant. Her son has a congenital disorder which appears to be adequately monitored at the moment and, so far as it appears from material before the Court, is unlikely to cause any immediate difficulty. The applicant's son also has a skin condition which is being treated.

25. It is necessary to balance the impact that the applicant being in custody has with respect to her son, with the fact that throughout her pregnancy, and after the birth of her son, the applicant was engaged in the conduct alleged against her. Unless the applicant irrationally thought that she would never be caught, it must have been obvious to her that there would come a time when her crimes would be identified and that she would be separated from her son. Not even this seems to me, on the material that I have, to have dissuaded the applicant from engaging in the offences. Nevertheless, it is necessary for me to give that matter full weight, and I do.

Discernment

26. I return now to the assessment of the bail concerns. The conditions proposed by the applicant, in effect, amount to a house arrest, a ban on her accessing the internet, a deposit of a relatively small amount of cash to secure her attendance at Court and a ban on any overseas travel.

27. In considering the bail concerns, it is appropriate to note that the Commissioner of the Australian Federal Police, shortly after the arrest of the applicant, obtained orders pursuant to the Proceeds of Crime Act 2012 (Cth) restraining the disposition by the applicant of certain parts of her property. The restrained property, which included property in the name of others, consists of real property at Goulburn in NSW, at Heckenberg in NSW and Broadmeadows in Victoria. It also included three motor vehicles - a Mercedes Benz E63, a Porsche Cayenne (to which I have earlier referred) and an Audi A3. I note that no bank accounts were restrained, and I note that the real property in Indonesia is not the subject of any restraint.

28. There is no information before this Court as to what the applicant’s assets are, with the exception of those noted in the Court's orders pursuant to the Proceeds of Crimes Act. The submissions of the applicant made it plain that she believes that she is entitled to, and may well, make an application for reasonable living expenses to be obtained from the restrained property.

29. First, the DPP submitted that there is a flight risk because of the strength of the DPP’s case (which I have earlier discussed), the likelihood of a significant custodial sentence, the fact that the applicant has assets located offshore and that there would be considerable difficulty in obtaining any extradition of the applicant back to Australia. The prosecution submitted that the sum offered by way of a bond or security for the applicant to appear is relatively small and from a source which may well, ultimately, be from the funds defrauded from the Commonwealth. The DPP submitted that its loss would not be significant. I think this is certainly correct.

30. Secondly, the prosecution submitted that there is a risk of the applicant committing serious offences if at liberty. It is clear that the applicant is thoroughly familiar with the way in which claims can be made on the NDIS, and, even if the applicant was banned from accessing the internet, there remains a serious risk that she could effect further frauds with the assistance of another complicit individual.

31. There is nothing about the conditions of bail, other than the honesty of the applicant herself, which would preclude the commission of further serious offences. The significance of these further possible serious offences is that, having regard to the nature of the system which the NDIS operates, they may well not be detected for a considerable period of time.

32. This application has caused me considerable concern and I have reflected upon it with a great deal of care. On the one hand, the applicant has no prior criminal history, she wishes to be at liberty to care for her son and is able to provide some, although in my view, inadequate security. No doubt as well, it can be said in favour of the applicant's application, the time she has spent in custody to date has reinforced the consequences of criminality.

33. But, on the other hand, the prosecution's case is very strong. There is a very high likelihood of conviction and the imposition of a lengthy sentence. These are significant factors regarding the risk that the applicant will fail to appear or else may commit further serious offences. I have to weigh up, not whether there is any risk at all, but rather, whether the risks identified by the prosecution, having regard to the conditions which the Court is asked to impose, or which it can impose, are unacceptable risks.

34. Having regard to all of the information before me, and taking into account all of the matters to which I have had regard, I am unpersuaded that the conditions proposed, or those which may be imposed, make any of the risks acceptable.

35. In my view there is an entirely unacceptable risk that the applicant will engage in further serious offences and an entirely unacceptable risk that she will not appear at Court when called upon.

Order

36. In those circumstances I refuse bail. The release application is dismissed.

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Amendments

15 August 2024 - Publication restriction lifted.

Decision last updated: 15 August 2024