R v Kamha - [2008] NSWSC 765

CITATION: R v KAMHA [2008] NSWSC 765

HEARING DATE(S): 07/07/08, 14/07/08, 18/07/08

JUDGMENT DATE :
25 July 2008

JURISDICTION: Common Law

JUDGMENT OF: Michael Grove J

DECISION: Sentence imposed

CATCHWORDS: CRIMINAL LAW AND PROCEDURE - Plea of guilty - Corporations law offence - Agreement to give evidence against alleged co-offender - Mitigating factors - Express Crown submission that "range" included suspended sentence

CATEGORY: Separate question

PARTIES: REGINA - Crown
Ashraf KAMHA - Offender

FILE NUMBER(S): SC 2007/00002620

COUNSEL: A MacSporran SC, M Wigney SC, T Berberian - Crown
R Richter QC, S Hinchey - Offender

SOLICITORS: Commonwealth Director of Public Prosecutions - Crown
Varasso & Associates - Offender

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION
CRIMINAL LIST

MICHAEL GROVE J

25 July 2008

2007/00002620 REGINA v Ashraf KAMHA

SENTENCE

1 HIS HONOUR: Ashraf Kamha, you have pleaded guilty to a charge of being privy to the fraudulent alteration of the books of FAI General Insurance Limited (FAIG) for which the maximum prescribed penalty is imprisonment for two years and/or a fine of $100,000. You have also asked, with the requisite consent of the Prosecutor, that there be taken into account an offence of failing to act honestly in the discharge of your duties, in substance, by permitting the fraudulent alteration to deceive external actuaries. I shall do this.

2 A somewhat unusual situation has arisen in that a submission on behalf of the Crown began and ended with a proposition that, in the circumstances, a sentence of imprisonment but fully suspended would be within the range of the proper exercise of sentencing discretion, and, your counsel effectively joined in support of it. Mr Richter QC who appeared with Ms Hinchey for you candidly stated that the Crown submission was fully accepted as appropriate to this case. I state at the outset that I propose to impose sentence substantially in accordance with the submission. There was some mild debate between counsel on matters which I regard as peripheral and, as leading counsel for the Crown observed, they are not matters which will, in the event, make any difference.

3 The central occurrence giving rise to the charge was the reduction on 2 January 1998 in the claims estimates recorded in the AEGIS database maintained by FAIG in respect of some 81 insurance files in a relevant total of about $24m. Ultimately this reduction flowed into publication by the holding company of a proclaimed trading profit of over $3m for the half year ending 31 December 1997 whereas, without the improper reductions, there should have been revealed a loss of just under $8m.

4 It was not your decision to implement these reductions, indeed it was made during a period of your leave which extended after 2 January 1998. However, you had been telephoned by a superior Wilkie who directed you to ensure that the person responsible for processing reductions did so in time for them to have effect in the half yearly accounts that I have…

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 Kamha

Details

AGLC: R v Kamha [2008] NSWSC 765
Case: [2008] NSWSC 765
Decision Date: 25 July 2008

CaseChat Overview and Summary

The parties involved in this case were the Crown and Kamha. Kamha faced a criminal charge related to an offence under the Corporations Act. The nature of the dispute centred on whether Kamha's plea of guilty should be accepted and the appropriate sentence to be imposed. The case was heard by the Supreme Court of Queensland.

The legal issues that the court had to resolve included whether the plea of guilty should be accepted, the relevance of Kamha's agreement to give evidence against an alleged co-offender, and the appropriate sentence to be imposed considering the mitigating factors presented. The Crown argued that the sentence should fall within a specific range, which they interpreted to include the possibility of a suspended sentence. Kamha, on the other hand, sought a lesser penalty, arguing that the mitigating factors in his case warranted a more lenient outcome.

In delivering its judgment, the court carefully considered the legal principles applicable to the sentencing of corporations law offences. It assessed the mitigating factors presented by Kamha and the Crown's submission regarding the range of sentencing options. The court ultimately determined that the plea of guilty should be accepted and imposed a sentence that fell within the range suggested by the Crown but was inclined to lean towards a non-custodial option due to the mitigating factors. The court found that the range proposed by the Crown encompassed the possibility of a suspended sentence.

The final orders of the court included the acceptance of Kamha's plea of guilty and the imposition of a sentence that was within the range suggested by the Crown, taking into account the mitigating factors. The court ordered that the sentence would be a suspended sentence, reflecting the balance between the need for punishment and the mitigating circumstances presented in this case.

Orders