R v Akkari

[1993] QCA 176

IN THE COURT OF APPEAL [1993] QCA 176

SUPREME COURT OF QUEENSLAND

C.A. No. 86 of 1993

Brisbane
[R. v. Akkari]

BETWEEN

T H E Q U E E N
v.
ANTOINE AKKARI

(Applicant)

The President
Mr Justice McPherson

Mr Justice Dowsett

Judgment delivered 19/05/93
Reasons for judgment by the Court

APPEAL ALLOWED. SET ASIDE SENTENCE. IN LIEU THEREOF, APPLICANT SENTENCED TO A TERM OF FIVE YEARS IMPRISONMENT WITH A NON-PAROLE PERIOD OF 2 YEARS.

CATCHWORDS CRIMINAL LAW - SENTENCE - Section 29D Crimes Act 1914 (Cth) - Defrauding the Commonwealth, Telecom - Whether sentence manifestly excessive - Plea of guilty - Co-operation with police.

Counsel:	S. Herbert Q.C. for the applicant F. Walsh for the Crown
Solicitors:	Robertson O'Gorman for the applicant Director of Prosecutions for the Crown

Hearing Date: 14 May 1993
THE COURT OF APPEAL

SUPREME COURT OF QUEENSLAND

C.A. No. 86 of 1993

Brisbane

Before The President
Mr Justice McPherson
Mr Justice Dowsett

[R. v. Akkari]

BETWEEN

T H E Q U E E N
v.
ANTOINE AKKARI

(Applicant)

REASONS FOR JUDGMENT OF THE COURT
Judgment delivered 19/05/1993

The applicant pleaded guilty to a single count under s.29D of the Crimes Act 1914 of defrauding the Commonwealth in the form of Telecom. He was sentenced in the District Court at Brisbane to a term of imprisonment of 8 years with a non-parole period of 3 years. He applies for leave to appeal against his sentence on the ground that it is excessive.

The offence was committed over a period of some 11 weeks between April and June 1991. As described in the court below and on appeal before us, it involved the appellant in taking advantage of a Telecom facility to open a line between Australia and Lebanon or Cyprus for some 18 hours a day. Calls from the Australian end were then diverted to destinations of the caller's choice in Australia or overseas. Those who used the system were thus able to make telephone calls to remote places at rates that were much lower than the normal Telecom rates.

The modus operandi adopted involved using false names to obtain lines at different premises for short periods, after which the applicant moved his activities to another address. The scheme was used first in Sydney and then in Brisbane. The Telecom bill for the whole period of the offence was $418,315.69, which has never been paid. This is the amount of which the applicant was said to have defrauded the Commonwealth.

No restitution or recompense has been paid or made to Telecom.

The fraudulent activity was discovered by chance. The method used by the applicant is said to have been "sophisticated", which can only refer to the procedure for running up such a large indebtedness within so short a time, and not to the idea of evading payment of the ultimate debt. The organisational ringleader of the scheme is said to have been a man named Bashir, who operated the network from Lebanon. According to what was said, Bashir was the real beneficiary of the fraud, the applicant himself receiving only $200 to $450 per week for his efforts. His part at the Australian end of the scheme was likened to that of a foreman on a building site. He arranged to hire premises and telephones, and to employ staff to answer telephones.

Details of the applicant's personal history and circumstances are somewhat scanty; but he is 40 years of age, and, as he is bilingual, he is presumably of Lebanese origin. He has convictions for three or four previous offences in this country, although none is sufficiently serious to have much if any influence on sentencing for an offence like this. What is important for present purposes is that the applicant co-operated with police in relation to this offence, and that he pleaded guilty thereby saving the time and cost of what might have been a lengthy trial. He also provided certain other assistance, of which details are given in ex. 6, which was sealed at the hearing below.

We were referred to a number of sentences in comparable instances. No two cases are ever quite alike, and some of those referred to involved aggravating features, such as betraying a position of trust. The amount here was very large, but that was partly because of the extent to which the illegal activity itself fostered business much of which would probably not otherwise have come to Telecom. So far as can be gathered from the record, Telecom did not suffer a loss of any physical assets or incur identifiable additional costs through the applicant's fraud. Whether or not that point of distinction is valid, comparison with the other cases suggests that the sentence in the present case is at a level somewhat beyond the ordinary range for offences of this sort. Apart from the significance of the amount involved, to which reference has been made, there seems little reason for specially condemning this case more than others. When the mitigating factors are considered, such as the applicant's relatively clear record, his plea of guilty, and the contents of ex. 6, the sentence does appear to be one warranting our intervention.

We would therefore grant the application, allow the appeal, and set aside the sentence. In lieu, the applicant should be sentenced to a term of imprisonment of five years with a non-parole period of 2 years.