R v Hassarati

[2005] QCA 102

COURT OF APPEAL  [2005] QCA 102

WILLIAMS JA
KEANE JA
HELMAN J

CA 417 of 2004

THE QUEEN
and
ANTHONY GEORGE HASSARATI	Applicant

BRISBANE

..DATE 11/04/2005

JUDGMENT

APPLICANT conducted his own case

MR G R RICE (instructed by the Commonwealth Director of Public Prosecutions) for the respondent

WILLIAMS JA:  I will ask Justice Helman to deliver his reasons first.

HELMAN J:  This is an application for leave to appeal against sentences imposed on the applicant on 8 November 2004 in the District Court at Maroochydore after he pleaded guilty to five counts of offences of dishonesty:  four of defrauding the Commonwealth (counts 1 to 4) and one of obtaining a financial advantage from the Commonwealth by deception (count 5).  The applicant had claimed a Job search allowance in the false name of Tony Joel Hassarati and given a false date of birth, and later claimed two newstart allowances, one in a false name and one not, but in each case failing to disclose that he was in business as a stonemason.  The learned judge imposed sentences of imprisonment for three and a half years with non-parole periods of fifteen months in each case.  In addition, the applicant was ordered to pay $78,439.38 to the Commonwealth by way of reparation.

The only ground upon which the application is made is that the sentences were manifestly excessive. 

The applicant, who was born on 13 July 1961, had no prior convictions.  His offences began in early 1992 and continued until mid-2003.  He obtained $78,439.38 in all.  He used false identification papers to get the newstart allowances to finance a gambling habit.  He continued to gamble until June 2001 when he determined to break the habit.  He has succeeded in doing so, apart from one relapse, so his counsel told the learned judge.

His Honour referred to the need for sentences in cases like this to have a deterrent effect on those tempted to commit such fraud. In doing so he was echoing the words of Pincus JA and Thomas J in R v Holdsworth [1993] QCA 242:

"It would be surprising if defrauding the Commonwealth of significant sums of money by criminal activity could be regarded as capable of deterrence by anything less than a general expectation of custodial punishment if the offender is caught.  Any notion that the Commonwealth and its department are fair game for this type of activity is to be resisted."

In this context it is to be noted that in the pre-sentence report the respondent is described as having attempted to objectify the offences and view them as victimless crimes on the basis that he never set out to hurt or disadvantage any particular individual or group.  Activity and notions of this kind will only be deterred by the imposition of penalties that those minded to defraud government agencies will find an unacceptable risk.” 

A review of comparable cases - two of particular relevance - shows the sentences imposed on the applicant to be within the relevant range.  In R v Wright C.A. no. 211 of 1994 (22 August 1994), a man who had pleaded guilty to defrauding the Commonwealth of $28,000 paid as a sole supporting parent’s benefit over a period of about sixteen months failed in his application for leave to appeal against a sentence of imprisonment for two and a half years with an order that he be released after serving twelve months upon his entering into a recognizance to be of a good behaviour for a period of three years.  Wright was thirty-three years old at the time of his application and had no prior convictions for offences of dishonesty.  His fraud did not show the premeditation and contrivance shown by this applicant:  he had failed to reveal a change of circumstances the effect of which would have been to end his entitlement to the benefit.

R v Prosser, Beenleigh District Court, no 532 of 1999(28 March 2000) has a number of similarities to this case.  Prosser was forty years old and had no prior convictions when sentenced by Nase DCJ to imprisonment for two and a half years to be released after serving fifteen months on his entering into a recognizance to be of good behaviour for two years.  Prosser had pleaded guilty to five offences of defrauding the Commonwealth committed over a period of two years and eight months and asked that three summary taxation offences be taken into account.  He received $50,539.17 as a newstart allowance by using a false name and when he was in employment to finance a gambling addiction.

Bearing in mind the substantially larger sum fraudulently obtained by the applicant, the length of time over which he practised his fraud, the degree of premeditation and contrivance shown, and the non-parole period set by his Honour I conclude that the sentences imposed have not been shown to be manifestly excessive, and so I should dismiss the application.

WILLIAMS JA:  I agree.

KEANE JA:  I agree.

WILLIAMS JA:  The order of the Court is that the application is dismissed. 

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