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…

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 Hassarati

Details

AGLC: R v Hassarati [2005] QCA 102
Case: [2005] QCA 102
Decision Date: 11/04/2005

CaseChat Overview and Summary

In the case of R v Hassarati, the applicant, Anthony George Hassarati, sought leave to appeal against the sentences imposed on him by the District Court at Maroochydore. Hassarati pleaded guilty to five counts of offences of dishonesty, which included defrauding the Commonwealth and obtaining a financial advantage by deception. The applicant had fraudulently claimed a Job search allowance and two newstart allowances under false identities and failed to disclose his employment as a stonemason. The District Court judge imposed sentences of imprisonment for three and a half years with non-parole periods of fifteen months and ordered Hassarati to pay $78,439.38 in reparation to the Commonwealth.

The primary issue before the Court of Appeal was whether the sentences imposed by the District Court were manifestly excessive. The applicant argued that the sentences were too harsh considering his lack of prior convictions and his efforts to break his gambling habit. The Court of Appeal reviewed comparable cases to determine if the sentences were within the relevant range. The Court found that the sentences were consistent with those imposed in similar cases where the offenders had committed similar offences over a comparable period and had demonstrated a degree of premeditation and contrivance.

The Court of Appeal held that the sentences imposed by the District Court were not manifestly excessive. The judges noted the need for sentences in such cases to have a deterrent effect on others who might be tempted to commit similar frauds against the Commonwealth. They also considered the substantial sum obtained by Hassarati, the length of time over which he committed the fraud, and the degree of premeditation and contrivance shown. The Court concluded that the sentences were within the relevant range and dismissed the application for leave to appeal. The final order was that the application is dismissed.

Orders