R v Baraket

[2023] NSWDC 455

District Court

New South Wales

Medium Neutral Citation:

R v Baraket [2023] NSWDC 455

Hearing dates:

13 September 2023

Date of orders:

26 October 2023

Decision date:

26 October 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1   Richard Baraket is convicted.

2   I impose an aggregate term of imprisonment of 2 years and 6 months.

3 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (26 October 2023) and expire on 25 April 2026.

4   The offender must report to the Sutherland Community Corrections Office on or before 4pm on 2 November 2023.

5   The standard conditions of the order apply:

(a)   the offender must not commit any offence; and

(b)   the offender must submit to supervision by a Community Corrections Officer.

6   The following additional conditions apply:

(a)   the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

(b)   the offender must receive treatment for his mental health as reasonably directed by Community Corrections;

(c)   the offender must receive treatment for drug rehabilitation as reasonably directed by Community Corrections; and

(d)   the offender must complete 120 hours of community service.

Catchwords:

CRIME – Fraud - make a false claim with intent to defraud

Legislation Cited:

Bankruptcy Act 1966 (Cth)

Crimes Act 1914 (Cth)

Crimes (Sentencing Procedure) Act 1999

Cases Cited:

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Mandranis v R [2021] NSWCCA 97

R v El Karhani (1990) 21 NSWLR 370

R v Olbrich (1999) 199 CLR 270

R v Zamagias [2002] NSWCA 17

Category:

Sentence

Parties:

Rex (Crown)
Richard Baraket (Offender)

Representation:

Counsel:
M Preece (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Hicksons Lawyers (Offender)

File Number(s):

2023/111932

Publication restriction:

None

JUDGMENT

Introduction

1. Richard John James Baraket (the offender) appears for sentence after pleading guilty in the Local Court to eight charges of make false claim in proceedings with intent to defraud, contrary to s 263(1)(d)(i) of the Bankruptcy Act 1966 (Cth). The maximum penalty for each offence is 5 years imprisonment.

Approach to Sentencing

2. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

3. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

4. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

5. The offender entered pleas of guilty in the Local Court. The offender’s pleas of guilty have saved the need for witnesses to be called at trial and there is significant utilitarian value in the pleas of guilty. The offender has facilitated the course of justice by co-operating with the trustee to pay back the benefit that he had received through his false statements. The plea also indicates remorse. The appropriate discount is 25%.

Facts

6. The parties tendered an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

7. On 15 January 2016, the offender became bankrupt by way of debtor’s petition. On the same date, Andrew John Scott of PricewaterhouseCoopers was appointed as trustee of the offender’s bankrupt estate (the trustee).

8. In March 2016 the offender began working for Blackbaud Pacific Pty Ltd (Blackbaud) as a sales executive. He was required to make contributions towards his bankrupt estate from his income and any commissions received.

9. On 28 September 2018 and again on 5 December 2018, the trustee filed a Notice of Objection to the offender’s discharge from bankruptcy and the offender’s bankruptcy was extended to 16 January 2024.

10. On 21 May 2019, the offender met with the trustee to discuss the removal of the trustee’s objection to the offender’s discharge from bankruptcy, a proposal made by the offender to pay his outstanding income contributions, and the offender’s income contribution for the current contribution assessment period.

11. Between 17 July 2019 and 20 January 2020, the offender provided seven false payslips to the trustee, and made false representations claiming that he received $9,314.11 in commission, when in fact he had received $177,341.53, being a shortfall of $168,027.42. By falsely claiming the value of his commissions, the offender prevented the contribution of $91,158.42 of his net pay to his bankrupt estate. The false payslips included adjustments to superannuation, PAYG tax amounts and year to date figures, in addition to commission, net pay and total earnings amounts. Sequence 4 involved making a false representation that he had paid $6,084.00 into his bankrupt estate when he had not.

12. It was common ground that the offender has repaid the required contribution to his bankrupt estate that he had falsely avoided.

Community Service Assessment Report

13. The Court has received a Community Service Assessment Report that indicates that the offender is suitable to perform community service work, that can be provided for up to 21 hours per month.

Offender’s Case on Sentence

14. The offender tendered the following documents:

1. psychological report of Jason Borkowski dated 3 October 2022;

2. character reference of Daniel Evans (undated);

3. character reference of Gary Bradshaw dated 1 September 2023;

4. character reference of Camille Faunt dated 6 September 2023;

5. letter of apology from the offender (undated).

15. The following is a precis of the evidence relied upon by the offender.

16. The offender is 36 years of age. He was born in Sydney and grew up in the Sutherland Shire. He has a younger brother. He had a stable upbringing and described his parents as loving and supportive. He remains close with both his parents and his brother.

17. The offender has lived with his parents throughout his life, including at the time of the offences.

18. The offender has always been socially active and all of his friends lead prosocial lives.

19. His parents are currently his primary supports, along with his employer and work colleagues.

20. The offender attended a Catholic primary school and then Newington College for Years 7 and 8. He was expelled in Year 8 which he attributed to being unfairly targeted by his housemaster, as well as acting out because he was preoccupied with the social aspects of school to the detriment of his schoolwork. He attended Scots College but was expelled in Year 12 for smoking at school. He completed his Higher School Certificate at Cronulla High School. He enrolled in a degree in Information Communication Technology at Wollongong University. However, he did not enjoy university and discontinued his degree.

21. Soon after leaving university, the offender commenced working in recruitment for his friend’s father’s company. He quickly became successful in this role, but he left after two years because he disagreed with some of the business practices engaged in.

22. Subsequently, the offender established his own recruitment company with a business partner, which progressed and grew to become a successful venture. The offender was involved in this business for four years. However, the business collapsed after his business partner started taking money out of the business for himself and not paying applicable taxes. As a result, the offender became personally liable for approximately $400,000.00 and he declared personal bankruptcy shortly after. At that time, he became depressed and sought psychological treatment but did not develop a therapeutic connection with his treating practitioner and ceased treatment. He was unemployed for approximately six months.

23. The offender has worked for his current employer for approximately seven years. It is a global software supply company and he is the Senior Principal Account Manager for the Asia Pacific region. The offender has been quite successful in this role. He did indicate that at times he works very long hours with minimal sleep.

24. The offender reported smoking cannabis socially in mid-adolescence. In later adolescence he used MDMA socially and somewhat regularly. At around 22 years old, he began using cocaine recreationally. His use quickly escalated to multiple times per week. The offender’s use escalated again during the COVID-19 lockdowns in 2020 due to boredom and he estimated that he spent $5,000.00 per week on cocaine in 2020. The offender identified the need for him to cease cocaine use but indicated that the substance use is his primary stress release. He reported that at the time of the offending, he had around $30,000.00 in drug-related debts as a result of his increasing cocaine use, and at that time he was not earning enough money to pay off his drug debts and also honour his financial commitments to the trustee. He had fears for his family’s safety if he did not pay those debts. The offender believed he would eventually discharge all of his debts and did not think of the consequences of the offending.

25. The offender has a history of gambling which occurs in the context of his cocaine use. He reported that when he was experiencing issues with his business partner in 2016, he would gamble and use cocaine as an “escape”.

26. The offender recognised that the offences were not “victimless crimes” to the psychologist but added that he was not “mature enough” to understand his actions at the time. He told the psychologist that being charged has led to him gaining insight into the consequences of failing to repay his debts.

27. He expressed remorse to his character referees.

28. All of his character references describe him as an energetic, ambitious and social person. Mr Bradshaw, a colleague and friend of the offender, described him as having an impressive work ethic and being a dedicated employee.

29. The offender volunteers for the Salvation Army and has encouraged his team at work to do the same.

30. The psychologist opined that the offender meets diagnostic criteria for Unspecific Bipolar and Related Disorder and Stimulant Use Disorder. These conditions were present at the time of offending and the psychologist found that there was likely a relationship between the conditions and the offending behaviour by impairing his judgement and foresight.

Consideration

The nature and circumstances of the offences

31. The offender falsified payslips and made false representations to avoid paying his agreed contribution from his pay to his bankrupt estate. The amount involved in each count varied according to the amount of commission that he made in each period.

32. The offences involved some planning and were premeditated. The offences were not sophisticated and were easily detected by the trustee when he sought the primary documents from Blackbaud.

33. The offences were committed for financial gain to repay his drug related debts.

34. I accept the psychologist’s opinion that it is likely that the offender has suffered from hypo manic symptoms of an undiagnosed mental health impairment, leading to increased risk-taking behaviours and poor judgement, and that he has relied on cocaine use as a maladaptive coping strategy. The escalation of his cocaine use has led to a serious substance use disorder. I accept that there is a causal connection between his risk aversion and poor judgment to the offences before the Court. In all of the circumstances, his mental condition has reduced his moral culpability for the offences to some extent.

35. I have taken into account the maximum penalty for the offences.

Deterrence

36. General deterrence is of significance to these offences to maintain the integrity of the law of bankruptcy and preserve the commercial, economic and social benefits that flow form it. The provision of false information undermines the process and interferes with a trustee’s ability to manage the bankrupt estate for the benefit of the creditors. Persons intent on committing similar offences must be deterred from doing so by reference to the penalty imposed.

37. There is also a need for specific deterrence, but it is reduced to some extent. The offender is still a bankrupt until 16 January 2024 and thereby expected to comply with his legal obligations until then. Against that, the offender has accepted responsibility for his actions, made full reparations and expressed remorse. I agree with the psychologist that he presents a low risk of reoffending.

Contrition

38. The offender has accepted responsibility for his actions, repaid the money and expressed remorse. I am satisfied that he is genuinely contrite.

Character, antecedents, age, physical and mental condition

39. The offender is 36 years of age.

40. The offender has one prior drink driving conviction from 2007 which is not relevant to this sentencing exercise. He was a person of good character. He has a history of volunteering with the Salvation Army.

41. The offender is in good physical health.

42. The offender is suffering from a complex mental condition that has existed for some time and has not been adequately managed. It has in turn led to the development of a significant substance use disorder. The offender requires treatment for both conditions to eliminate any risk of reoffending.

Prospects of rehabilitation

43. The offender has good prospects of rehabilitation. He has good insight into the contribution that his drug use has made to his poor choices. He has ongoing employment and stable accommodation provided by a loving and supportive family. I am confident that his family will encourage him to participate in drug rehabilitation and mental health treatment that he needs.

Comparable sentences

44. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520. There are very few comparable cases for this offence and that further limits the utility of the exercise.

Penalty

45. I have had regard to s 17A Crimes Act 1914 (Cth). I am satisfied having considered all other available sentences that no sentence other than imprisonment is appropriate, for the reasons I have given in this judgment.

46. Richard Baraket is convicted.

47. I will impose an aggregate sentence: s 53A Crimes (Sentencing Procedure) Act 1999. The sentences I would have imposed after allowing for the appropriate discount, had separate sentences been imposed are:

• Sequence 1 – 4 months;

• Sequence 2 – 8 months;

• Sequence 3 – 6 months;

• Sequence 4 – 4 months;

• Sequence 5 – 12 months

• Sequence 6 – 4 months

• Sequence 7 – 6 months

• Sequence 8 – 6 months.

48. I impose an aggregate term of imprisonment of 2 years and 6 months.

49. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

50. This is a case in which community safety is best achieved by the rehabilitation of the offender by requiring him to undertake intensive treatment of his mental condition and drug addiction in the community: R v Zamagias [2002] NSWCA 17 at [32] (Howie J). Prior to the offences, the offender’s mental condition was undiagnosed and his drug use was causally related to it. The offender has demonstrated good insight into the circumstances that led to his offending and has accepted responsibility for the offences and made reparation for the loss sustained.

51. Out of the two options of sending him to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].

52. The severity of the offender’s mental condition and its direct causal relationship with the offending conduct, means that general deterrence, retribution and denunciation can be given less weight.

53. An order that the sentence be served by an ICO will make the offender accountable for his actions. An ICO is a sentence of imprisonment that will significantly impact on the offender’s freedom and will reflect the seriousness of the offending conduct and the harm done to the community.

54. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (26 October 2023) and expire on 25 April 2026.

55. The offender must report to the Sutherland Community Corrections Office on or before 4pm on 2 November 2023.

56. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

57. The following additional conditions apply:

1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

2. the offender must receive treatment for his mental health as reasonably directed by Community Corrections;

3. the offender must receive treatment for drug rehabilitation as reasonably directed by Community Corrections; and

4. the offender must complete 120 hours of community service.

58. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full time custody.

59. The offender must attend the Criminal Registry to confirm his residential address so that a copy of the order can be posted to him.

**********

Decision last updated: 26 October 2023