R v Abas

[2023] NSWDC 548

District Court

New South Wales

Medium Neutral Citation:	R v Abas [2023] NSWDC 548
Hearing dates:	24 July 2023
Date of orders:	24 July 2023
Decision date:	24 July 2023
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	See pars [60]-[62].
Catchwords:	CRIME – SENTENCE – Defrauding Service NSW during COVID-19 Pandemic – Part of criminal groups making bogus claims for business support grants.
Legislation Cited:	Crimes Act 1900
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Sentence
Parties:	Crown – R (NSW) Offender – Adam Abas
Representation:	Counsel: Crown – Fay, I. Offender – Goodsell, L. Solicitors: Crown – Office of the Director of Public Prosecutions. Offender – Jeresyn Legal.
File Number(s):	2022/00112691
Publication restriction:	Nil.

Judgment

Charges

1. HIS HONOUR: Adam Abas stands for sentence as a consequence of pleading guilty to two substantive charges, and he has also asked me to take into account on a Form 1 three further offences which he admitted that he committed. The first of the two offences for which he stands for sentence is known as Sequence 3. That is an offence contrary to s 192E(1)(b) of the Crimes Act 1900. It can be shortly described as dishonestly causing financial disadvantage by deception. The maximum penalty with that offence is imprisonment for ten years. There is no standard non-parole period.

2. The second substantive offence for which the offender stands for sentence is known as Sequence 6. That is an offence contrary to s 192G(b) of the Crimes Act 1900. The offence can be shortly described as dishonestly making a false statement with intent to cause financial disadvantage. The maximum penalty for that offence is imprisonment for five years.

3. On the Form 1 to be dealt with in connection with the Sequence 3 offence is, firstly, the offence known as Sequence 1, an offence contrary to s 93T(1) of the Crimes Act 1900 which can be shortly described as participating in a criminal group. The maximum penalty for that offence is imprisonment for five years. The offender also asked me to take into account on the Form 1 the crimes known as Sequence 4 and Sequence 5, again, dishonestly causing financial disadvantage by deception, further offences contrary to s 192E(b) of the Crimes Act 1900.

Facts

4. All told, it is alleged by the Crown that the offender caused a financial disadvantage to the State of New South Wales in the sum of $31,500. Of that sum, the offender through his counsel today freely admits that he personally gained $18,000. The offender is prepared to repay that sum of money provided that appropriate arrangements can be made with the Registrar so that the money can be paid, I assume, by instalments.

5. A large number of persons have been charged with involvement in the submission of fraudulent grant applications to Service NSW. Ibrahim Hawat, Zaman Haidary and Ashraf Khoder have been identified as the primary members of the criminal group which was submitting the applications to Service NSW.

6. When submitting applications to Service NSW, the applicant was required to nominate a bank account for the payment into which the grant was made. Service NSW would not make more than one payment into the same bank account. For that reason, Hawat, Haidary and Khoder sought identification information and bank details from other persons in the criminal group to submit multiple applications to Service NSW. The agreed facts have been supplemented in the Crown's written submissions which set out more clearly the background to the operation of this criminal group.

7. Hawat and Haidary have had their trials listed for hearing in the Downing Centre District Court in May 2024. The indictment contains over 200 counts and relates to over $1 million in fraudulent applications to Service NSW. Khoder, however, pleaded guilty to almost $1 million in fraudulent applications and his matter is listed today to obtain a sentence date in this Court. Whether he will be sentenced later this year or early next year, I do not know.

8. The Crown alleges Khoder and Haidary actually submitted the applications to Service NSW online and that Hawat contacted a large number of persons to obtain their identification information and to coordinate the transfer of money from their bank accounts back to the criminal group. Of the others in the criminal group, this offender, William Robert Woods, Fadi Bassal, and a person with the surname Tsang were selected by the Crown to be prosecuted in this Court because of what the Crown submit was "their significant involvement in the fraud operation".

9. Willams and Bassal had already been dealt with by McHugh S.C. DCJ. Most of the participants in the criminal group are being dealt with in the Local Court. There are between 40 and 50 such individuals who are being dealt with at the Bankstown Local Court by Magistrate Walsh. Most of the individuals in the Local Court already have received community correction orders or intensive correction orders. Some of the individuals have received full‑time custodial sentences.

10. The Crown draws my attention to an offender named Kire Papuckoski and an offender named Ty Fullagar. The first of those two men pleaded guilty to making ten applications, as well as being a member of the criminal group. He was involved in making applications for $26,000 worth of grants, but also attempted to make further applications for $32,500. He was sentenced by the Local Court to imprisonment for 20 months and a ten-month non-parole period was fixed. He has a lengthy history of drug offences and offences of violence. He was in custody at the time of his being sentenced.

11. Fullagar made six applications for a total sum of $63,000, as well as admitting that he was a member of the criminal group. He was sentenced to imprisonment for 18 months with a nine-month non-parole period. At the time of the offences he committed, he was in breach of numerous conditional release orders. He also had a lengthy criminal history.

12. I return now to the particular facts of this matter. The agreed facts sum up the offender's involvement in this fashion:

“Abas participated in the criminal group by:

a) Providing his own identification information and bank details to Hawat for the purpose of submitting fraudulent Service NSW applications;

b) Checking his bank account and informing Hawat whether the Service NSW payments had been made;

c) Providing identification information and bank details for Andrew James Williams to Hawat;

d) Receiving a portion of the payments made by Service NSW and providing the other portion to other members of the criminal group.”

Charges

Sequence 5

13. The first crime to be considered is that known as Sequence 5 which is one of the offences on the Form 1. On 20 September 2021 at 2:44pm, Abas called Hawat and told him he had a friend's ABN and other details, and confirmed that Abas' friend would receive $10,000. Hawat told Abas that his mate would get $9,000 and that they, meaning Hawat and Abas, would keep $3,000. Abas later sent a text to Hawat with the details of Andrew James Williams, his ABN number, his driver's licence number and its expiry details, and his Medicare card details, as well as that man's bank account details. On 22 September 2021 at 6:31pm, Abas called Hawat. Hawat said he wanted Williams's bank details, driver's licence, and Medicare, and Abas told Hawat that he already sent them to him.

14. On 23 September 2021, a micro‑business support grant during the COVID-19 pandemic crisis was submitted to Service NSW by an applicant named Reina Sialei Alchin. The application was in relation to a business being carried out at Factory Street, North Parramatta with a certain ABN number, and a phone number, and certain bank account details.

15. A subscriber check of the phone number given revealed that it was registered to Collin Hall. An ABN search revealed that the ABN number was linked to a person or business known as Peter Nguyen. That application was submitted at 6:57pm on 23 September. It provided a mobile telephone number which was connected to a certain address between 6:46 and 7:06am.

16. The geographical location of the mobile phone service was identified as being in the Carramar Railway Station area and was a location approximately 500 metres from Khoder's residence which was in Sandal Crescent, Carramar. The bank account number was linked to Andrew James Williams. That bank account was credited, all told, with $10,500. The first instalment being paid on 24 September 2021 and a second, but smaller instalment paid on 6 October 2021.

Sequence 3

17. The next crime to be considered is known as Sequence 3, one of the two primary charges to which the offender has pleaded guilty. On 27 September 2021, a micro-business support grant was submitted to Service NSW by an applicant called Hanna Moubayed. That application was in relation to a business at Bulah Way, Seven Hills with a certain ABN number. A phone number was also provided, as were bank account details. The application was made at 9:27pm.

18. The mobile telephone number provided was connected to an IP address between 8:48pm and 9:47pm that evening. The subscriber of the mobile phone service was Collin Hall. The geographical location where the mobile service was identified as being situated was the Chester Hill area which was an area which contains the residence of Hawat. A subscriber check of the phone number provided revealed that it was linked to Collin Hall. The ABN search revealed that it was linked to Anh Kiet Tran. The bank account number was linked to the offender.

19. A total amount of $10,500 was paid into that account, $9,000 on 30 September 2021, and $1,500 on 6 October 2021. On 30 September 2021 at 12:43am, the offender called Hawat and said he was unable to check if the money had got into his bank account. The first instalment was probably paid into the account later on the same day.

Sequence 4

20. The next crime to be considered is that known as Sequence 4. Again, dishonestly causing a financial disadvantage by deception, and, once more, for the sum of $10,500. That is another offence to be taken into account on the Form 1. At 11:36pm on 1 October 2021, the offender called Hawat and asked if he needed to get anything ready for "Drew", which appears to be an abbreviation of the name Andrew.

21. On the same day, a micro-business support grant was submitted to Service NSW by an applicant named Amy Sarkis. The application was in relation to a business said to be carried on at Hunter Street, Fairfield. An ABN number was provided, as well as a mobile telephone number, and bank details. The application was made at 12:00pm. It is unclear to me whether that means 12:00 midnight or 12:00 noon because neither 12:00 midnight nor 12:00 noon is in the afternoon.

22. The mobile service number provided was connected to an IP address between 11:18am and 12.10pm, so I assume that 12:00pm meant noon. The geographical location where the mobile service was identified as being, was again in the Chester Hill area which is the area in which Hawat lives. An ABN search revealed that it was linked to Amal Sarkis. The bank account details were linked to Andrew James Williams. Three payments were made to it amounting to $10,500.

23. At 12:39pm on 4 October 2021, the offender called Hawat and asked if he gave him his NAB details. Hawat said that something had gone in. That representation was incorrect. At 10:45am on 5 October 2021, Hawat called the offender. The offender said that nothing had come into the account yet. He asked if Hawat needed the NAB login details and Hawat replied, "No".

24. At 10:50am on 6 October 2021, Hawat called the offender. The offender asked if "Drew's had gone in yet". Hawat said that "Will's had gone in". The offender asked if Hawat had done his new one yet. Hawat said to wait and see Ash to find out. It would appear that although the offender was referring to Andrew James Williams as Drew, Hawat was referring to him as "Will", an abbreviation of his surname.

25. At 2:42pm, Hawat called the offender again and the offender inquired whether the money had come in and how Hawat knew that the money had gone in. Hawat told him that it takes between two and seven days and that he would receive a confirmation text. He told the offender that "Drew's amount should be in soon", but he had not yet heard about that being the offender's account. A phone call later that day confirmed that the money had been paid into Williams' account.

Sequence 6

26. The next crime is Sequence 6. It is the second substantive matter to which the offender has pleaded guilty. On 7 October 2021, another micro‑business support grant was submitted to Service NSW by Amy Sarkis. That was in relation to the business at Hunter Street, Fairfield. An ABN, mobile telephone number, and bank details were provided. The application was in relation to a request for a payment of $10,500. The accused understood that the application would be submitted in his name rather than the name of Amy Sarkis.

27. The application was submitted at 3:22pm on 7 October. A mobile telephone number was provided which was connected to an IP address between 3:11pm and 4:09pm. The geographical location where the mobile service was identified was in the Chester Hill area, the suburb in which Hawat lives. A check of the phone number found that it was registered to Collin Hall. The ABN search showed that it was linked to Amy Lee Marick. The bank account was one belonging to the offender, however, no payments were made on this occasion.

28. At 4:35pm on 9 October, Abas called Hawat asking when the money was going into his bank account. Hawat told him it would be in the next few days. On 12 October 2021, Hawat called the offender. The offender asked when "it would be there". Hawat said that it had been processed and he would let him know once he received confirmation. On the following day, 13 October 2021, the offender called Hawat saying that the money had not gone into his account yet. At 4:42pm on 15 October, the offender called Hawat and asked about the money. Hawat said the money should be paid into his account on the following day. However, that did not occur.

29. On 20 April 2022, the offender was arrested. He told police a number of things, some of which appear to be untrue. He denied knowing about any COVID‑19 payments being made into his bank account under the names of other people. He said that in mid‑2021 his wallet had been stolen and he was informed by police that his wallet and identification had been found in a building in Redfern. Whether that be true, I do not know.

30. He admitted that he knew Hawat because Hawat was married to his sister. They are brothers‑in‑law. He admitted to knowing Khoder as he was Hawat's friend. He denied knowing Haidary. When he was told that the police had intercepted the phone call between him and Hawat where he offered to provide a friend's ABN, he said that Hawat "could've asked me to get people, um, uh, my mate's ABN number so he could do a business grant for him, you know what I mean". He admitted that that "mate" was Andrew James Williams, and he admitted that he expected to receive $900 from Hawat in relation to the business grant.

31. In relation to Williams, the offender said:

"Me and him, according to us, we're not doing any fraudulent you get what I'm saying. We're not trying…we know we, we're receiving funds, like I said to you, that you're probably not entitled to, but not saying things like, oh under somebody else's name."

32. He admitted that Williams was "may be not" entitled to the business grant. Perhaps the offender's position at that time could be described as wilful blindness.

33. I find it somewhat difficult to accept why this offender was selected to be prosecuted in this Court when it is clear that the offending of Kire Papuckoski was more involved, as was the criminal behaviour of Ty Fullgar, but those men were only prosecuted in the Local Court. Perhaps it was because of the offender's relationship with Hawat.

Personal Circumstances

34. The offender has a criminal history. I accept the submission made by the Crown that that criminal history does not entitle the offender to any leniency. The offender was also at the time of the offending on a 12-month community correction order for the offence of driving whilst a driver's licence had been refused, and that must be taken into account as being an aggravating factor.

35. The offender's history as a adult offender commences in March 1996 when he was found guilty of larceny and fined $400. On 14 September 2002, he committed two offences of shoplifting, and in respect of each, he received a fine. There were some driving offences in December of 2004, but they are of no moment.

36. On 27 October 2004, he was charged with obtaining money or the like by deception. Eventually, a fine of $100 was imposed. He was also charged with a drug offence on 13 August 2004 and another count of obtaining money or the like by deception on 3 November 2004. For those offences, he was put on a bond to be of good behaviour for a period of two years and under the supervision of Community Corrections.

37. On Christmas Day 2004, he committed the offence of driving on an expired licence, which displays some disregard of the law, but that offence was dismissed under s 10. In 2005, he committed offences of larceny and possessing prohibited drugs. In the same year, on 29 January 2005, he was charged with stealing property from a dwelling house, and disposing of property, and also for two counts of making or furnishing a false statement.

38. For the stealing offence, he was given a community service order, and for the disposing of property, he was put on a bond to be of good behaviour for two years. For the furnishing a false or misleading statement, the offender was again placed on s 9 bond for a period of two years. However, the offender breached the community service order for which he was called up and fined $500.

39. There was then a relatively long break in offending until 27 March 2012 when the offender drove whilst his licence was suspended. Again, an offence that appears to show some contempt of the law. On 4 April 2015, he committed a common assault and the offence of stalking or intimidating with intent to cause physical or mental harm. Those are domestic violence offences.

40. For contravening a prohibition or restriction in an AVO, he was sentenced to imprisonment for 18 months which was suspended under s 12. However, he was called up for a breach of the s 12 bond and sentenced to imprisonment for 18 months. That was the subject of an appeal to this Court at Parramatta, and this Court imposed a non-parole period of six months. None had been fixed by the Local Court. There were further call-ups on 15 June 2015 and 31 July 2015.

41. On 30 March 2016, the offender was charged with possession of a prohibited drug. He was sentenced to 12 months imprisonment with an eight‑month non-parole period. He appealed to this Court sitting at Parramatta and the order was varied. He was sentenced to a fixed term of imprisonment for four months. The offender was found guilty of driving whilst disqualified on 15 October 2021 and also on 7 January 2022. Significantly, and out of order in the criminal history, there are offences of possessing a prohibited drug in 2016 and possession of a prohibited drug on 5 May 2020. There was also an offence of larceny on 20 November 2017.

42. Leaning aside the driving whilst disqualified offences, no particularly major crime has occurred since the offender was found guilty of the domestic violence offences. It would appear that the offender had an addiction to heroin that was admitted by his counsel, but it is clear from the report of Dr Zakaria Batty of 6 May 2023 that the offender has been on a methadone program for some seven years under the supervision of Dr Thomas Bateman.

43. According to the offender's counsel, that condition is under control. The drug offence of 15 May 2020, I am told, was the use of cannabis which is consistent with the penalty infringement notice for that offence which was one fine of $75 and another fine of $150. However, why there should have been two charges on the one day is unclear if it were the same drug. The offender's personal details are only very vaguely described in the report of Dr Batty on 6 May 2023. It is this:

"Mr Adam has a history of depression related to his upbringing and divorce. He resorted to drugs to deal with his depression symptoms. The illicit drugs helped him at first to lifting his mood and escaping from feelings of guilt or despair. Then the substance usage triggered and intensified with feelings of loneliness, sadness, and hopelessness which are associated with depression.

He denied using any substances for the last seven years and after he started methadone program under Dr Thomas Bateman's supervision. He does not want to return to substance abuse.

In April 2023 he restarted attending therapy after a while, and he was stressing due to a court case which he was arrested for seven months. He reported that his brother-in-law used his ABN and other people's numbers in a scam, and Adam was arrested on suspicion, till he was bailed. He still [has] a court case and he needs to attend, though the police investigation indicate [sic] he was innocent and was not aware of his brother-in-law's scam."

44. Of course, that history is completely dependent upon the accuracy and reliability of the offender. One can understand that if the offences of 15 May 2020 related to cannabis only, that he could see himself as having been free of his drug addiction for some seven years. Much has been said by learned counsel for the offender about the part or the history I just quoted which appears to be exculpatory.

45. Similar exculpatory statements are recorded in the sentencing assessment report of 12 July 2023. However, I can accept that perhaps the offender found it difficult to understand how he could be legally involved in a scam that he joined in with his brother-in-law which he may not have understood correctly. However, again, that seems to indicate he believes in Santa Claus, which is somewhat hard to accept.

46. Despite the offender telling police in his record of interview that he was involved in scaffolding, in evidence is a letter from Ashflex Holdings Proprietary Limited by whom the offender had been employed as a truck driver, and which states that that company has recently re-employed him as a truck driver. The letter seems to indicate that the offender lost his work as a truck driver because of COVID-19 pandemic which caused them to let his services go because of a downturn in the company's workload. This inconsistency is explained by counsel as being that when the offender lost his licence, he turned to scaffolding work to make up for his inability to drive trucks. There may be substance in that submission.

Objective Seriousness

47. The Crown has submitted that the offences "fall just below the mid‑range of objective seriousness". The reasons put forward by the Crown for that submission are these:

"(a) The offender provided his own identification details to a criminal group for the purpose of fraudulent Service NSW applications.

(b) The offender provided Mr Hawat with the identification and bank details of Andrew James Williams for the purpose of submitting a fraudulent COVID-19 application.

(c) A total of four applications were made using either the offender's details or Andrew James Williams' details.

(d) A total of $31,500 was deposited by Service NSW into bank accounts in the offender's name. This money has not been recovered.

(e) The offender attempted to obtain a further $10,500. The application was stopped and no payment was made.

(f) The offender withdrew cash and transferred money deposited by Service NSW to members of the criminal group, including Mr Hawat. The offender kept a portion of the payments.

(g) The offender had direct communications with Mr Hawat who is alleged to be the principal member of the criminal group."

48. Perhaps the last matter should have been more felicitously expressed as being that Mr Hawat was a principal member of the criminal group. One can understand that Hawat and the offender being brothers-in-law, they would be very well-known to each other, be on familiar terms, and that the offender could agree to assist Hawat with what initially the offender may have believed was some genuine type of application. That, in my view, lowers at least his moral culpability for the offences.

49. Given, however, the amount of money involved in the applications in which the offender was connected, and bearing in mind the offender's frank admission through his counsel that he actually received $18,000 and is prepared to submit to a restitution order, that again speaks in a mitigatory way to the offender's conduct. However, bearing in mind the limited amount the offender did in this rather large criminal group and the amount of money involved, I would not say this was "just below the mid-range of objective seriousness", but below the mid-range of objective seriousness.

Parity

50. The offender has spent time in custody, not the seven months which appears to have been adverted to by Dr Batty, but five months and 18 days. One matter which is of quite great moment in this case is parity. William Robert Woods spent five months and 14 days in custody. He pleaded guilty to recklessly dealing with the proceeds of crime in the amount of $31,500. He asked the Court to take into account on a Form 1 participating in a criminal group which he ought reasonably to have known that his participating in that group contributed to the current criminal activity. Again, this is a charge that the offender has pleaded guilty to.

51. Woods, like the current offender, was entitled to discount of 25%. Woods was sentenced to imprisonment for one year, one month and 15 days to be served by way of an ICO, taking into account the time that he had already spent in custody. Woods at current time would be 68 years old. At the current time, the offender is 47 years old. Although Woods has a long criminal history, it is of minor offences for which he has not served any time in custody other than for a short period or periods before he was granted bail.

52. The other offender was Fadi Bassal. Like Woods, Bassal was sentenced by McHugh S.C. DCJ. Bassal had spent one year and 20 days in custody for his role in this criminal group. However, his Honour also took into account a further period of custody for which the offender had not been given the benefit in any sentence, that period of time being one where the charges against him were withdrawn. All told, his Honour took into account a period of one year, 17 weeks and one day in dealing with Bassal.

53. Bassal caused a loss to the State of New South Wales of $73,500 which was significantly greater than the loss that the offender caused the State of New South Wales, twice as much. Bearing in mind the time that Bassal had spent in custody, his Honour sentenced him to imprisonment for two years to be served by an intensive corrections order. Like the present offender and Woods, Bassal was also entitled to a discount of 25% because of the utilitarian value of his plea. I must take into account both the sentences passed on Bassal and Woods.

Consideration

54. I have come to the view that I should commence the sentencing exercise with a head sentence of three years and four months. I reduce that by 25% because of the offender's plea of guilty at the earliest available opportunity. That reduces the sentence to two years and six months. Because there are two substantive offences, an ICO may be imposed for a period of up to three years. I can, therefore, sentence the offender either to imprisonment full‑time for two years and six months or place him on an ICO for the same period of time.

55. Having read the offender's criminal history carefully and having heard the submissions put to me by Ms Goodsell of counsel for the offender, I accept that the offender's life has been since 2016 largely uneventful as far as crime is concerned, other than his driving record. The other offending is relatively minor and does indicate the offender has turned away from his drug addiction.

56. It is postulated by Dr Batty that the offender has a "history of major depression". However, she freely admits in her report an observation I very frequently made, that depression and anxiety are common for people due to appear in court who are about to stand for sentence. She could not determine whether the depression and anxiety that she has recently diagnosed were caused by that fact or were the results of some ongoing major depressive disorder.

57. If there were a major depressive disorder, it generally comes in episodic form and the current depression and anxiety, if it be an episode of a major depressive disorder, may well have been precipitated by the legal difficulties in which the offender finds himself. I cannot take into account as a matter for diminishing sentence, but of course, it does point to the fact that anxiety and depression are better treated in the community than in custody.

58. Having carefully considered community safety, which is paramount when considering the imposition of an ICO, I take the view that community safety will not be imperilled by this man being on an ICO. The sentencing assessment reports indicated a medium risk of re-offending. Community Corrections would place the offender on a medium supervision level which would require the offender to have contact with a Community Corrections Office officer every two weeks, and they proposed that the offender participate in cognitive behaviour therapy strategies, including managing his environment and prosocial lifestyle, referral to participate in an EQUIPS Foundation course relating to his offending behaviours which may include drug use, and monitoring Mr Abas's engagement with his psychologist to assist him in addressing his mental health concerns.

59. Community Corrections have also advised that the offender is suitable to undertake community service work which can be provided to the offender for up to 14 hours per month.

Sentence

60. Adam Abas, on each of the charges to which you have pleaded guilty, you are convicted. I sentence you to imprisonment for a term of two years and six months commencing today to be served by way of intensive correction in the community. Terms of the order are:

1. You must not commit any offence.

2. You must submit to supervision by a Community Corrections officer.

3. You must complete community service work for 300 hours.

4. You must abstain from both drugs and alcohol.

5. You are not to associate with either Ibrahim Hawat or Zaman Haidary.

61. You are to report to the Community Corrections Office at Bankstown by telephone within seven days.

62. By consent, I order the offender to pay to the Registrar on such terms or conditions as the Registrar determines, the sum of $18,000 to be paid by the Registrar to the Crown by way of compensation.

63. Any other orders sought?

64. GOODSELL: No your Honour.

65. FAY: No, thank you.

66. OFFENDER: Thank you your Honour.

67. In passing this sentence, I have taken into account the time spent by the offender in custody, namely five months and eighteen days.

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Decision last updated: 15 August 2024