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

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

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).
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.
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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading R v Baraket

Details

AGLC: R v Baraket [2023] NSWDC 455
Case: [2023] NSWDC 455
Decision Date: 26 October 2023

CaseChat Overview and Summary

The case of R v Baraket was heard in the District Court of New South Wales, where the defendant, Richard Baraket, was charged with fraud involving the making of a false claim with the intent to defraud. The defendant was alleged to have made false statements to obtain financial benefits from the government, leading to the prosecution under relevant criminal statutes. The matter was determined by Justice Smith, who was tasked with evaluating the evidence presented and applying the applicable legal standards to reach a verdict and sentence.

The court was required to decide whether the prosecution had proven beyond reasonable doubt that the defendant had knowingly made a false claim with the intent to defraud. Additionally, the court had to consider the appropriate sentence to be imposed if the defendant was found guilty. The issues also included the consideration of the defendant's background, character, and any mitigating or aggravating factors that might influence the sentencing decision.

Justice Smith found that the evidence provided by the prosecution was sufficient to establish that the defendant had made a false claim with the intent to defraud. The court accepted the prosecution's arguments and dismissed the defence presented by the defendant. In terms of sentencing, the court considered the nature and circumstances of the offence, the defendant's background, and the need for deterrence and rehabilitation. The court determined that an aggregate term of imprisonment of 2 years and 6 months was appropriate, to be served by way of an Intensive Correction Order, with specific conditions attached to ensure the defendant's compliance with the order and to address his mental health and drug rehabilitation needs.

The court made several orders to be complied with by the defendant, including the commencement of the sentence on the date of the judgment, 26 October 2023, and its expiration on 25 April 2026. The defendant was required to report to the Sutherland Community Corrections Office by 4pm on 2 November 2023 and abide by both the standard and additional conditions of the Intensive Correction Order. These conditions included abstaining from restricted or prohibited drugs, unless prescribed by a medical practitioner, and complying with mental health and drug rehabilitation treatment as directed by Community Corrections, along with the completion of 120 hours of community service.

Orders

Orders of the court

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;

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

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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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