Magdi v The State of Western Australia
[2010] WASCA 234
•14 DECEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT : THE COURT OF APPEAL (WA)
CITATION: MAGDI -v- THE STATE OF WESTERN AUSTRALIA [2010] WASCA 234
CORAM: McLURE P
PULLIN JA
MAZZA J
HEARD: 7 OCTOBER 2010
DELIVERED : 14 DECEMBER 2010
FILE NO/S: CACR 105 of 2010
BETWEEN: AZIZ MAGDI
Appellant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
ON APPEAL FROM:
Jurisdiction : DISTRICT COURT OF WESTERN AUSTRALIA
Coram :BOWDEN DCJ
File No :IND 129 of 2009
Catchwords:
Criminal law - Appeal against sentence - Whether the sentences imposed were manifestly excessive - Whether the parity principle has been infringed due to a lack of disparity between the sentences imposed on the appellant and his cooffender
Legislation:
Crimes Act 1914 (Cth), s 20(1)(b)
Criminal Code (Cth), s 134.1
Criminal Code (WA), s 409(1)(c)
School Education Act 1999 (WA)
Sentencing Act 1995 (WA), s 76, s 81
Result:
Leave to appeal on ground 1 is refused
Appeal dismissed
Category: B
Representation:
Counsel:
Appellant: Mr S Vandongen
Respondent: Mr P D Yovich
Solicitors:
Appellant: David Manera
Respondent: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Chan v The Queen (1989) 38 A Crim R 337
Furber v The Queen [2008] WASCA 233
I (a child) v The State of Western Australia [2006] WASCA 9
Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404
Lovelock v The Queen (1978) 33 FLR 132
R v Baldock [2010] WASCA 170; (2010) 269 ALR 674
R v Baunach [1999] QCA 207
R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52
R v Hart; Ex parte Director of Public Prosecutions (Cth) [2006] QCA 39; (2006) 159 A Crim R 428
R v Wall [2000] QCA 297; (2000) 113 A Crim R 445
Ralph v Nawrojee [2003] WASCA 5
Stitt v The Queen (1998) 102 A Crim R 428
Wilson v The State of Western Australia [2010] WASCA 82
McLURE P: I agree with Mazza J.
PULLIN JA: I agree with Mazza J.
MAZZA J: This is an appeal against sentence.
The appellant and Abdallah Saad Magar (Mr Magar) were charged with offences of fraud contrary to s 409(1)(c) of the Criminal Code (WA) and dishonestly obtaining property by deception contrary to s 134.1 of the Criminal Code (Cth). At the conclusion of a lengthy trial in the District Court before Bowden DCJ and a jury, the appellant was convicted of three counts of fraud and two counts of dishonestly obtaining property by deception (counts 8, 10, 11, 13 and 14). He was acquitted of four counts (counts 1, 3, 5 and 7). Mr Magar was convicted of nine counts of fraud and five counts of dishonestly obtaining property by deception. He was acquitted of count 7.
The appellant received a total effective term of 2 years' immediate imprisonment. Mr Magar received a total effective term of 3 years' immediate imprisonment. Each of them was made eligible for parole on the State offences and placed on recognisance release orders for the Commonwealth offences.
The appellant relies on two grounds of appeal. The first alleges that the sentences were manifestly excessive. It is primarily submitted that on the State offences the sentences should have been suspended pursuant to s 76 or s 81 of the Sentencing Act 1995 (WA), and on the Commonwealth offences an order should have been made pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) releasing the appellant forthwith. Such an order is regarded in general terms as the Commonwealth equivalent of a suspended sentence.
The second ground of appeal alleges that the sentences infringed the parity principle as a result of a lack of disparity between the total effective term imposed upon the appellant and that imposed upon Mr Magar.
Leave to appeal is required in relation to the first ground. Leave to appeal on the second ground was granted on 25 August 2010.
The principles applicable to an appeal against sentence are well known and are set out in Wilson v The State of Western Australia [2010] WASCA 82 [2]. There is no need to repeat them here.
Background
In 1986, Mr Magar founded a small community school with 50 students and two teachers. His objective was to provide school‑aged children with an Islamic based education. Over time the school grew and became known as the Australian Islamic College (the College). By 2005 and 2006, the College consisted of three campuses situated at Kewdale, Thornlie and Dianella. It had over 2,500 students and employed some 280 staff.
Each of the campuses was a registered school within the meaning of the School Education Act 1999 (WA). As such, each campus was entitled to apply for and, if eligible, be paid grants from the State and Commonwealth governments. These grants were paid according to a formula based on the number of students who were attending the College. In order to obtain these grants, the College was required to submit census forms in February and August of each year.
The relevant Commonwealth and State government agencies administering the grant schemes relied on the genuineness of the figures provided to them in these forms. The resources available to those agencies were such that only minimal spot‑checking was undertaken to confirm that the figures provided were genuine.
The College had a policy of not pursuing payment of school fees from parents who were either unwilling or unable to pay. This policy resulted in a shortfall of income and caused the College to accumulate losses over a number of years. These losses threatened the financial viability of the College.
As a response, in or about 2005 Mr Magar, who was at the time the College's overall director, conceived of a scheme which involved census forms being created that contained inflated student numbers. The intention was that the relevant State and Commonwealth agencies would be misled as to the number of students attending the College, with the consequence that the College would receive more funding than it was entitled to. Mr Magar began to put this scheme into effect in 2005.
The appellant, who was the principal of the Thornlie and Dianella campuses, took part in the scheme by signing five census documents in February and August 2006, which he knew contained falsely inflated figures as to the number of students who were attending those campuses. These were not the only false documents the appellant signed. The appellant also signed student registers with inflated numbers and for non‑existent classes. He told members of the staff who voiced concerns about the accuracy of the registers not to be concerned about them.
The total number of ineligible students Mr Magar made claims for was approximately 1,160 as a result of which the College received a sum in excess of $3 million. Of these, the appellant was involved in false claims for 337 students worth $799,513.
The following table sets out the details of each of the offences committed by the appellant and Mr Magar, along with the sentences that they each received:
| Count | Offender | Offence | Number of students | Amount | Sentence |
| 1 | Mr Magar | Fraud | 34 | $22,168 | 12 months' imprisonment concurrent |
| 2 | Mr Magar | Fraud | 95 | $92,544 | 2 years' imprisonment concurrent |
| 3 | Mr Magar | Fraud | 28 | $18,256 | 12 months' imprisonment concurrent |
| 4 | Mr Magar | Fraud | 109 | $119,810 | 2 years' imprisonment concurrent |
| 5 | Mr Magar | Dishonestly obtaining property | 28 | $114,044 | 2 years' imprisonment concurrent |
| 6 | Mr Magar | Dishonestly obtaining property | 125 | $674,625 | 3 years' imprisonment concurrent |
| 8 | Mr Magar/ appellant | Fraud | 33 | $23,496 | Mr Magar: 12 months' imprisonment concurrent appellant: 9 months' imprisonment concurrent |
| 9 | Mr Magar | Fraud | 41 | $40,838 | 12 months' imprisonment concurrent |
| 10 | Mr Magar/ appellant | Fraud | 53 | $38,228 | Mr Magar: 12 months' imprisonment concurrent appellant: 9 months' imprisonment concurrent |
| 11 | Mr Magar/ appellant | Fraud | 101 | $70,912 | Mr Magar: 2 years' imprisonment concurrent appellant: 12 months' imprisonment concurrent |
| 12 | Mr Magar | Fraud | 169 | $165,253 | 2 years 6 months' imprisonment concurrent |
| 13 | Mr Magar/ appellant | Dishonestly obtaining property | 53 | $245,605 | Mr Magar: 30 months' imprisonment concurrent appellant: 18 months' imprisonment concurrent |
| 14 | Mr Magar/ appellant | Dishonestly obtaining property | 97 | $421,272 | Mr Magar: 30 months' imprisonment concurrent appellant: 24 months' imprisonment concurrent |
| 15 | Mr Magar | Dishonestly obtaining property | 195 | approx $1 million | 3 years' imprisonment concurrent |
On counts 13 and 14, separate recognisance release orders were made in relation to the appellant, each in the sum of $3,000 for periods of nine and 12 months respectively.
His Honour found that Mr Magar was the instigator of the offending. His Honour described the appellant's role as 'somewhat limited in comparison to Mr Magar'. He accepted that the appellant acted under the direction of Mr Magar. Neither offender was found to have been motivated by personal gain. Mr Magar's dominant motive was to maintain the financial viability of the College. The appellant was found to have acted out of a misguided sense of loyalty to his co‑offender.
His Honour was unable to find that the appellant knew the exact extent of the inflation of the figures. However, he did find that the appellant knew that the figures in the documentation were inflated. In particular, he knew that there was a significant inflation in the August 2006 figures.
Although neither offender had pleaded guilty, his Honour gave some limited mitigatory weight to concessions made at trial which resulted in what his Honour said was a considerable reduction in the length of the trial and the number of witnesses called.
His Honour accepted that full restitution had been paid and, although neither offender had contributed to the payment of restitution, he regarded this as 'a significant factor'.
His Honour found that neither offender was likely to reoffend and that both had excellent prospects of rehabilitation. He further found that imprisonment would cause hardship for both men.
His Honour outlined the appellant's personal circumstances as follows.
The appellant was, at the time he was sentenced, 55 years of age. He had what his Honour described as 'an absolutely outstanding academic record'. The appellant graduated from the University of Cairo with a medical degree and after coming to Australia gained advanced qualifications in teaching. He had no criminal or traffic convictions. His Honour noted the 'excellent' character references which had been provided to the court. He described the appellant as an intelligent, hard‑working man who is highly thought of in education circles and the wider community. His Honour accepted that the appellant's partner had significant health issues and that the appellant had provided her with assistance in this regard. The appellant had also assisted in the upbringing of his partner's son.
Mr Magar was, at the time of sentencing, 72 years of age. He too was highly educated and without prior convictions. His Honour referred to the 'large volumes' of references which attested to Mr Magar's good character. His Honour found that Mr Magar was genuinely concerned about the education of children in an Islamic environment and that he had made a positive contribution to the community in promoting religious tolerance.
His Honour expressly took into account Mr Magar's advanced age and ill health. He made reference to the fact that, since 2000, Mr Magar had been under the care of a cardiologist and that he was suffering, at the time of sentencing, from blockages in the arteries, high blood pressure, high cholesterol, diabetes and obstructions to the blood vessels in his right leg. His Honour recognised Mr Magar's age and ill health as matters which made imprisonment 'more arduous than normal'.
His Honour described the offences that were committed by the two men as 'serious frauds' involving deliberate acts of dishonesty, a substantial amount of money and a breach of the trust which had been placed in them. His Honour referred to the difficulty in detecting offences of this type. He found that both offenders had taken advantage of a system that was not well checked and that their conduct had struck at the integrity of the grants scheme.
His Honour considered the offences to be frauds on the revenue. He stated that where such offences are committed systematically over a period of time and involve substantial amounts of money, they are generally met with a substantial custodial sentence in order to achieve general deterrence and provide punishment and denunciation for the conduct.
His Honour turned his mind to the question of whether the sentences could be suspended, either under State law or its Commonwealth equivalent. At AB 103 he said:
Now, I do consider that the only appropriate sentence to impose on both of you is in fact a period of immediate imprisonment. I consider that any other sentence, by way of a suspended sentence, community based order, conditional release order or the Commonwealth equivalents, would simply fail to reflect the serious nature of the offences, the repeated acts of dishonesty, and the significant amounts of money thereby obtained for the schools. I understand that imprisonment is a sentence of last resort. But I am of the opinion that that stage has been reached.
Ground 1
The appellant submitted that 'special circumstances' existed in this case which, when taken in combination, led to the conclusion that the sentences imposed upon the appellant were manifestly excessive and should have been suspended.
The 'special circumstances' identified by the appellant were that he was:
(a)not the instigator of the offences;
(b)not motivated and did not receive any financial gain from the commission of the offences, but offended out of a misguided sense of loyalty to Mr Magar;
(c)not aware of the precise extent to which student numbers had been inflated or the amount obtained;
(d)a person of excellent character, had no criminal record and restitution had been paid;
(e)unlikely to reoffend and had excellent prospects of rehabilitation; and
(f)required to assist his partner deal with the effects of her ill health.
The appellant's counsel, in his oral submissions, placed particular emphasis on the first and second factors as being points which differentiated the appellant's culpability from those cases of serious dishonesty which generally resulted in immediate terms of imprisonment.
His Honour's approach to the task of deciding whether to impose suspended imprisonment, whether under State law or its Commonwealth equivalent, was the same. No challenge is made to this. I note that the approach his Honour adopted is supported by authority: Furber v The Queen [2008] WASCA 233.
When determining whether a sentence is manifestly excessive, regard is had to the maximum sentence for the offence, the standards of sentencing customarily observed with respect to the offence, the place which the criminal conduct occupies on the scale of seriousness of offences of that type and the personal circumstances of the offender: Chan v The Queen (1989) 38 A Crim R 337, 342.
The maximum sentence for fraud under s 409 of the Criminal Code (WA) is 7 years' imprisonment. The maximum sentence for an offence of dishonestly obtaining property under s 134.1 of the Criminal Code (Cth) is 10 years' imprisonment.
There is, as far as has been ascertained, no other case decided at appellate level involving offences of dishonesty committed by a school principal with a purpose of obtaining government grants to which the school was not entitled.
However, the appellant's offending comes within the rubric of frauds on the revenue. The decisions of this court and courts elsewhere in Australia establish that in such cases, where there are acts of serious dishonesty committed over a period of time and involving substantial sums of money, ordinarily as a matter of fact, the appropriate penalty is a term of immediate imprisonment. This is because in most cases significant weight must be given to general deterrence and the weight given to personal sentencing factors is reduced: Kovacevic v Mills [2000] SASC 106; (2000) 76 SASR 404; Ralph v Nawrojee [2003] WASCA 5; R v Wall [2000] QCA 297; (2000) 113 A Crim R 445; R v Cappadona [2001] NSWCCA 194; (2001) 122 A Crim R 52; Stitt v The Queen (1998) 102 A Crim R 428; R v Baunach [1999] QCA 207; R v Hart; Ex parte Director of Public Prosecutions (Cth) [2006] QCA 39; (2006) 159 A Crim R 428; and R v Baldock [2010] WASCA 170; (2010) 269 ALR 674 [145].
Although the appellant was not the principal offender and his motive was not one of personal gain, the offending was undoubtedly very serious. The appellant occupied a senior position at the College. Because of this, the State and Commonwealth funding authorities reposed a high degree of trust in him, which he abused. He was prepared to use his position to obtain for the College a substantial amount of money to which the College was not entitled. He did so deliberately on a number of occasions over a period of six months. He knew what he was doing was wrong and when other employees of the College raised the issue of the accuracy of the student registers, he told them not to be concerned.
General deterrence was rightly considered by his Honour to be an important consideration in this case. State and Federal governments are entitled to depend on the genuineness of the figures provided to them by school principals when assessing a school's entitlement to a grant. The offences struck at the integrity of the grants scheme. It is fundamental to the integrity of the scheme that the figures provided to the State and Federal governments are accurate, so that grants can be allocated to those schools which properly need financial assistance in a sum which that school deserves. The principal of a school in financial difficulty cannot employ dishonesty and deception to obtain funds to which it is not entitled, with the purpose of alleviating its financial difficulty.
The appellant's excellent antecedents are mitigatory. However, the weight that can be given to those antecedents must be tempered, as I have already mentioned, by the need to provide general deterrence.
I have not been persuaded that his Honour erred in concluding that the only appropriate sentencing option in this case was immediate imprisonment. The objective seriousness of the appellant's offending and the need to provide general deterrence made the imposition of a suspended term of imprisonment, under State law or the Commonwealth equivalent, inappropriate. Such an outcome was not open to his Honour.
Ground 1 has not been made out. I would not give leave in relation to it.
Ground 2
The appellant submits that the parity principle has been infringed as a result of a lack of disparity between the sentences imposed upon Mr Magar and those imposed upon the appellant.
The appellant contends that the overall sentence imposed upon him was comparable to the overall sentence imposed on Mr Magar. However, the appellant argues that his circumstances were significantly different to those of Mr Magar and should have resulted in his Honour imposing upon him a lower overall sentence than the one he received.
The differences identified by the appellant's counsel, between the appellant's circumstances and those of Mr Magar, were:
(a)Mr Magar was convicted of 14 offences committed over approximately 18 months involving the fraudulent receipt of in excess of $3 million. By contrast, the appellant was convicted of five offences committed over approximately six months, which involved the gaining of approximately $800,000.
(b)Mr Magar was the principal offender who instigated the scheme, while the appellant's role was, in his Honour's words, 'somewhat limited in comparison to Mr Magar'.
(c)Mr Magar, as the founder and director of the College, had a personal interest in ensuring the continuing viability of the College that was over and above any interest that might have been held by the appellant.
It was acknowledged that his Honour made reference to two factors that were present in Mr Magar's case, but which were absent in the appellant's case, namely, Mr Magar's advancing age and ill health. It was submitted that these factors could not by themselves explain why Mr Magar's sentence was comparable to the appellant's sentence.
The parity principle and its rationale were explained by Steytler P in I (a child) v The State of Western Australia [2006] WASCA 9 [64] ‑ [71] as follows:
Speaking generally, justice should be equal and like offenders should be treated alike. Equal justice requires that, as between co‑offenders, there should not be a marked disparity which gives rise to a justifiable sense of grievance. For a sense of grievance to be justifiable, the difference between the sentences must be manifestly excessive. Moreover, if there are factors which support different treatment as between co-offenders, whether because of different degrees of culpability or differences in their circumstances, then, of course, it will be appropriate to treat them differently. In such a case the difference in sentence, if it is a reasonable consequence of the different factors, can give rise to no justifiable sense of grievance [65]. (cases cited omitted)
In the present case, the appellant does not assert that there is a marked disparity between the overall sentence imposed on the appellant when compared to the overall sentence imposed on Mr Magar, which gives rise to a justifiable sense of grievance. After all, the appellant received a lower overall sentence than Mr Magar. Instead, the appellant asserts that the parity principle has been infringed as a result of a lack of disparity between those sentences. As to this, the appellant relied on the statement made by Brennan J in Lovelock v The Queen (1978) 33 FLR 132, 136 ‑ 137:
Where offenders whose circumstances are comparable receive disparate sentences, or where offenders whose circumstances are disparate receive comparable sentences, that circumstance is not sufficient by itself to warrant interference by an appellate court with the sentence imposed on any of the offenders. The court does not interfere with a sentence imposed on one offender merely because 'a disparity has been created by another sentence which was far too lenient, and even though, as a consequence, the appellant may be left with a sense of injustice or grievance'. But if there be differentiating circumstances which favour the case of an appellant from the case of another offender who received a comparable sentence in respect of the same offence, the lack of disparity between the sentences bespeaks an error of some kind. (cases cited omitted)
In the present case, it is undeniable that the appellant was not as culpable as Mr Magar in terms of the number of offences, the amount of money dishonestly obtained, the time over which the offences were committed and their respective roles in the commission of the offences. Mr Magar's offending was clearly more serious than that of the appellant. However, there were differences in the personal circumstances of Mr Magar and the appellant. Unlike the appellant, Mr Magar's advanced years and ill health meant that imprisonment would be more arduous for him.
The respondent submitted that there was another differentiating factor between Mr Magar and the appellant. The respondent submitted that, while both offenders were of good character, Mr Magar was entitled to greater mitigatory weight because his antecedents were even better than the appellant having regard to Mr Magar's contribution in promoting religious tolerance in the community. For myself, I do not see that his Honour regarded the good character evidence led by Mr Magar as being materially stronger than the evidence led on behalf of the appellant. Both men had excellent antecedents and both had made contributions to the wider community.
The question to be answered, with respect to ground 2, is whether it has been established that the sentences show insufficient disparity between the total overall sentences imposed upon Mr Magar and the appellant such as to give rise to a justifiable sense of grievance on the part of the appellant.
It is not, I think, simply a matter of saying that Mr Magar was convicted of more offences involving more money over a longer period of time than the appellant. That analysis ignores a number of features in the case, most notably the operation of the totality principle. The totality principle operated with respect to both offenders, but perhaps more so Mr Magar who was sentenced in relation to more offences than the appellant.
The practical effect of the totality principle is to arrive at an aggregate sentence that is less than that which would be arrived at by simply adding up all the terms appropriate for the individual offences. In this case, that principle serves to narrow the gap one might have expected in the total overall sentences imposed upon the two offenders. Moreover, the mitigating factors of advanced age and ill health, in my view, justify a further narrowing of that gap. Finally, it cannot be ignored that the appellant did receive a lesser overall sentence than Mr Magar.
Having regard to all of these matters, I do not regard the disparity as being insufficient and giving rise to a justifiable sense of grievance.
Ground 2 has not been made out.
Conclusion
Neither ground of appeal has been made out. The appeal should be dismissed.
Orders
1.Leave to appeal on ground 1 is refused.
2.The appeal is dismissed.
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