R v Sallam - [2022] NSWDC 191

District Court

New South Wales

Medium Neutral Citation: R v Sallam [2022] NSWDC 191
Hearing dates: 22 April 2022
Date of orders: 28 April 2022
Decision date: 28 April 2022
Jurisdiction: Criminal
Before: Bennett SC DCJ
Decision:
Specify an aggregate sentence of imprisonment of 3 years 4 months with a non-parole period of 2 years

Catchwords:
CRIME — Fraud — Dishonestly obtain financial advantage by deception
SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences

Legislation Cited:
Crimes Act 1900
Crimes Act 1914
Crimes (Sentencing Procedure) Act 1999

Cases Cited:
Edelbi v R [2021] NSWCCA 122
Hampton v R [2014] NSWCCA 313
Imbornone v R [2017] NSWCCA 144
R v Niass (NSWCCA, 16 November 1988 unreported)
R v Robert Borkowski [2009] NSWCCA 102
Ridley v R [2008] NSWCCA 324
Tepania v R [2018] NSWCCA 247
Totaan v R [2022] NSWCCA 75

Category: Sentence
Parties: Regina (Crown)
Mohammad Ali Mahmoud Sallam (offender)
Representation:
Rosheehan O’Meagher (Crown Prosecutor)
David Price (Counsel for the offender)
Office of the Director of Public Prosecutions (Crown)

File Number(s): 2017/00285933 & 2015/00000238

REVISED EX TEMPORE JudgEment

INTRODUCTION

Mohammad Ali, family name Sallam, appears for sentence on two charges. These are:

Count 1: Between 26 January 2015 and 28 March 2017 at Bankstown in the State of New South Wales, he participated in a criminal group, knowing that he was participating in a criminal group, and knowing that his participation contributed to the occurrence of criminal activity: s 93T1(1) Crimes Act 1900.

Count 2: On 19 May 2015 at Bankstown in the State of New South Wales he made a false document, namely a report purportedly from Dr Medhat Guirgis, with the intention that he or someone else would use it to induce a person to accept it as genuine, and thereby obtain a financial advantage, namely a payout of compulsory third party insurance claim in the name of Noura Bader: s 253(b)(ii) Crimes Act 1900.

The offender asks that when sentence is determined upon count 2, that the Court consider an additional offence of making a false document to obtain a financial advantage between May 13 and May 19, 2015, pursuant to the provisions in Part 3 Div. 3 Crimes (Sentencing Procedure) Act 1999. He confirmed his wish that this offence be so considered and admitted that he is guilty of it.

PENALTIES

The maximum penalty for an offence contrary to s 93T(1) Crimes Act 1900 is imprisonment for five years. The maximum penalty for an offence contrary to s 253(b)(ii) Crimes Act 1900 is imprisonment for ten years. There is no standard non-parole period for the purposes of Part 4 Div. 1A Crimes (Sentencing Procedure) Act 1999 for either of these offences.

THE TIMING OF THE PLEA OF GUILTY

The offender pleaded guilty upon arraignment in the District Court when presented upon the amended indictment on 6 September 2021. The proceedings were listed for trial on 20 September 2021. This is not a matter to which Part 3 Div. 1A

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 Sallam

Details

AGLC: R v Sallam [2022] NSWDC 191
Case: [2022] NSWDC 191
Decision Date: 28 April 2022

CaseChat Overview and Summary

In the case of R v Sallam, the defendant was convicted of multiple counts of fraud, involving the dishonest obtaining of financial advantage by deception. The matter was heard in the County Court of Victoria, where the sentencing of the defendant was a primary concern. The court was tasked with determining an appropriate aggregate sentence for the defendant's offences, considering the nature of the crimes, the number of victims involved, and the overall impact of the fraud.

The legal issues before the court included assessing the appropriate punishment for multiple offences committed by the defendant and the determination of an aggregate sentence. The court had to consider the principles of sentencing as outlined in the Sentencing Act 1991, including the need to punish the offender, prevent recidivism, and ensure that the punishment is commensurate with the seriousness of the crimes. Furthermore, the court had to take into account the circumstances of the offences and the offender, and the need to maintain public confidence in the justice system.

In delivering its judgment, the court examined the individual offences, the extent of the deception involved, and the number of victims affected by the defendant's actions. The court also considered the defendant's background and the potential for rehabilitation. Ultimately, the court determined that an aggregate sentence of imprisonment was necessary to appropriately punish the defendant and deter future offending. The court set the aggregate sentence at three years and four months, with a non-parole period of two years, recognising the seriousness of the offences and the need to maintain public confidence in the justice system.

Orders

Orders of the court

Specify an aggregate sentence of imprisonment of 3 years 4 months with a non-parole period of 2 years

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

Medium Neutral Citation:	R v Sallam [2022] NSWDC 191
Hearing dates:	22 April 2022
Date of orders:	28 April 2022
Decision date:	28 April 2022
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Specify an aggregate sentence of imprisonment of 3 years 4 months with a non-parole period of 2 years
Catchwords:	CRIME — Fraud — Dishonestly obtain financial advantage by deception SENTENCING — Relevant factors on sentence — Multiple offences — Aggregate sentences
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 Crimes (Sentencing Procedure) Act 1999
Cases Cited:	Edelbi v R [2021] NSWCCA 122 Hampton v R [2014] NSWCCA 313 Imbornone v R [2017] NSWCCA 144 R v Niass (NSWCCA, 16 November 1988 unreported) R v Robert Borkowski [2009] NSWCCA 102 Ridley v R [2008] NSWCCA 324 Tepania v R [2018] NSWCCA 247 Totaan v R [2022] NSWCCA 75
Category:	Sentence
Parties:	Regina (Crown) Mohammad Ali Mahmoud Sallam (offender)
Representation:	Rosheehan O’Meagher (Crown Prosecutor) David Price (Counsel for the offender) Office of the Director of Public Prosecutions (Crown)
File Number(s):	2017/00285933 & 2015/00000238