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

1. 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.

2. 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

3. 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

4. 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 Crimes (Sentencing Procedure) Act 1999 applies. The discount for the utility of the pleas of guilty must be assessed according to statements such as are found in R v Robert Borkowski [2009] NSWCCA 102 at para [32]. The Crown concedes that the utilitarian value is to be assessed within the range of 10% to 15% considering the timing of the pleas well after the initial arraignment but with the community spared a relatively lengthy and factually complex trial, reflected in the array of his conduct upon which the offender engaged between January 26, 2015 and March 28, 2017, upon which the charges were drawn, rolled up into the charges upon which it was presented and the offence to be taken into account.

5. On behalf of the offender counsel urged a discount of 15% to 20%, referring to the anticipated length of the trial, estimated at six weeks, the lengthy plea negotiations leading to the agreement reached, and the modification of the charges and the factual matters to those agreed, significantly departing from the position initially advanced by the Crown. I propose a discount of 15% to each of the sentences I select as appropriate to reflect the utility of the pleas of guilty.

PRE-SENTENCE CUSTODY

6. The offender was arrested on September 21, 2017 and held until November 29. He was granted bail on November 30, 2017 and remained at large until he was arrested for an unrelated Commonwealth matter on April 20, 2021, and was refused bail in respect of it. On September 6, 2021 his bail for this matter was revoked. The Commonwealth matter is continuing, and I am told is not likely to be concluded before 2023. The parties agree that up to April 22, 2022 the offender has been in custody for 297 days solely referable to the matter before this Court. Upon my calculation, the period is in fact 299 days, to which must be added another six days to the present time.

7. Section 47 Crimes (Sentencing Procedure) Act 1999 provides, inter alia:

“1. A sentence of imprisonment commences, subject to s 71 and/or any direction under subs (2), on the day in which the sentence is imposed.

2. A Court may direct that a sentence of imprisonment –

(a) is taken to have commenced on the day occurring before the day in which the sentence is imposed, or

(b) commences on the day occurring after the day on which the sentence is imposed, but only if the sentence is to be served consecutively (or partly concurrently and partly consecutively) with some other sentence of imprisonment.

3. In deciding whether or not to make a direction under subs (2)(a) with respect to a sentence of imprisonment, and in deciding the day on which the sentence is to be taken to have commenced, the Court must take into account any time for which the offender has been held in custody in relation to the offence or, in the case of an aggregate sentence of imprisonment, any of the offences to which the sentence relates.”

8. I had initially taken the view that since resolution of the Commonwealth matter is well into the future, I might bring to account all the pre-sentence custody, leaving the Court that deals with the Commonwealth matter in due course, if it is to result in imprisonment, to tailor the sentence to be then imposed with appropriate concurrence and accumulation according to the principle of totality, considering the full range of the offender's misconduct. However, since forming that view I reviewed s 47 as quoted, and an authority in which the court was not dealing precisely with circumstances as here, and which stands against that course: R v Niass (NSWCCA, 16 November 1988 unreported) per Lee CJ at CL at p 2, confirmed in Hampton v R [2014] NSWCCA 313 at para [35].

9. The relevance of any time other than that for which the offender has been held in custody in relation to the offence, or in the case of an aggregate sentence of imprisonment any of the offences to which the sentence relates, may be brought to account for other purposes, but to rely solely upon a period of custody for an unrelated matter is extraneous to the exercise of sentencing discretion for the matter at hand, particularly as in this case with broken periods of custody: Hampton v R ibid at para [30].

10. The matters relevant to the assessment of sentence in the other proceedings are not before this Court and it is not possible to assess the significance of the pre-sentence custody referable to them, and accordingly to turn to the pre-sentence custody for the Commonwealth offences would be to embark upon consideration of information extraneous to the exercise of this sentencing discretion. Moreover, whatever the Commonwealth offences are, the determination of sentence for them is under a different regime upon the application of Part 1B Crimes Act 1914 with another sentence and its structure to be determined. The Court determining those matters would be required in due course to identify an appropriate sentence and structure with consideration to be given to the pre-sentence custody referable to it, and a proper assessment of the totality of the misconduct in which the offender engaged. Those considerations are entirely for that sentencing Court. This Court has no material upon which to assess the offending alleged in the Commonwealth prosecution and therefore none upon which to assess the totality of the offender's misconduct.

11. Since his arrest for the present matter on September 21, 2017, he spent in total 70 days in custody until granted bail on November 30, 2017. He has been in custody bail refused for these offences from September 6, 2021, to the present, a period of 235 days.

12. Upon these calculations, the sentence I shall impose today will be taken to have commenced on June 26, 2021, bringing to a total 305 days of pre-sentence custody referable solely to these proceedings.

13. Pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 I shall impose an aggregate sentence which I will be taking to have commenced upon that date.

THE FACTS

14. I shall refer to the agreed statement of facts. Their accuracy and detail is acknowledged on behalf of the offender. The offender worked for an insurance company, Insurance Australia Group, in the compulsory third party claims department as a health recovery consultant between November 2011 and May 2014. This role required him to review invoices submitted by providers for goods and services associated with compulsory third party claims.

15. On 26 January 2015 the offender commenced trading in the entity Physio Rehab Centre and registered himself and Jihan Lazki as co-directors. The offender was the majority shareholder. On 27 May 2015 Mohammad Edelbi replaced the offender as a co-director. When Edelbi became a director on that date the offender continued to attend Physio Rehab Centre and did so up until March 2017, involved in the running of the business and the activities of the criminal group.

16. The facts relevant to count 1 are as follow.

17. The criminal group for the purpose of this charge included the offender, Mohammad Edelbi, Jihan Lazki, Hala Hammoud, a receptionist, and Salem Sawda who became involved in the group in September 2015. The activities of the group involved fraudulent practices, to which I shall come, in relation to some claims against compulsory third party insurers for the purposes of obtaining a material benefit.

Claims Advisory Consultations

18. The Physio Rehab Centre provided claims advisory consultation to clients seeking treatment for an injury in relation to a compulsory third party personal injury claim. This was requested by a firm of lawyers, ‘Thomas Booler Lawyers’ for a number of compulsory third party clients before the beginning of their treatment. Claims advisory consultations were undertaken with approximately 350 patients during the period nominated between 26 January 2015 through to March 2017. The offender conducted some of the claims advisory consultations and advised a number of clients on how to exaggerate their injuries at doctors' appointments in order to obtain favourable medico-legal reports and maximise their compulsory third party payouts.

19. He personally conducted those consultations until in or around September 2015 when, as indicated below, he trained Sawda in conducting these claims advisory consultations and she took over that role. He would advise patients to exaggerate their injuries by advising them to,

1. identify three or four areas of injury,

2. exaggerate their pain,

3. show limited mobility,

4. wear sandals instead of lace-up shoes,

5. have someone drive them to their appointment,

6. say that they were losing concentration and focus and

7. say that they were not seeing their family and friends anymore due to psychological withdrawal.

20. The offender wanted the clients advised in this way in order to attain a 11% medical assessment service or more. This resulted in higher compensation payouts as clients were entitled to compensation for pain and suffering and future loss if they reached that percentage of whole person impairment. $2,000 claims advisory consultation fees were invoiced by Physio Rehab Centre directly to ‘Thomas Booler Lawyers’ and paid to the company out of clients' settlement funds. The offender advised and showed Sawda, the employee at Physio Rehab Centre, how to conduct these claims advisory consultations. Sawda started working at Physio Rehab Centre in March 2015 and took over conducting many of the claims advisory consultations in September 2015 when he was offered a position in a business development/management role. Claims advisory consultations with clients advised to exaggerate their injuries were undertaken with at least 25 patients during the period nominated in the indictment from 26 January 2015 to March 2017.

Appointments Where the Clients Would Not Attend

21. Clients were told that there needed to be a history and a pattern of treatment consistent with injury to further the compulsory third party claim. For that reason, the Physio Rehab Centre booked and invoices physiotherapy appointments for compulsory third party clients, whether those clients attended sessions or not. During a claims advisory session the offender advised a number of clients that he would book 12 treatment sessions and that even if they did not intend, invoices would be created for those sessions. To facilitate this practice, Hammoud the receptionist, and Edelbi, an accounts manager, booked patients regularly even when they did not show up at all for appointments.

22. As a result, invoices totalling at least $75,000 were created and sent to insurers and lawyers charging the full rate for missed or cancelled appointments. Invoices for physiotherapy sessions generally ranged between $95 and $140 depending upon the number of areas of treatment involved, plus an additional fee if it was an initial visit.

Backdated Appointments

23. The offender was involved with Edelbi, Lazki, Sawda and Hammoud in backdating appointments for 23 patients. The purpose of backdating appointments was to generate invoices for treatment that was not actually provided. The invoices were used to create the illusion that the client needed ongoing treatment and was a means for Physio Rehab Centre to obtain moneys when the client did not attend. In respect of 16 patients, false invoices with backdated appointment dates were sent to ‘Thomas Booler Lawyers’ in a total amount of $43,900. In respect of 13 patients, false invoices with backdated appointments were sent to various insurers in the total amount of $16,527.50, of which $4,780.50 was paid.

Invoicing Under Incorrect Practitioners

24. The offender was involved with Lazki and Hammoud in recording on invoices that clients had been treated by a registered physiotherapist when they had not. Insurers only paid for registered health professionals such as physiotherapists and not for massage therapists or physio assistants. However, even if the client was seen by a massage therapist, the insurer was billed that they had seen a physiotherapist. Invoices totalling at least $40,000 were issued and subsequently paid by compulsory third party insurers in circumstances where a non-registered practitioner treated the patient but the invoice falsely recorded that the consultation had been completed by a registered physiotherapist.

25. The following are the facts relevant to the second count on the indictment of making a false document to obtain a financial advantage.

26. The offender is the former husband of Noura Bader. On 5 September 2014 Bader lodged a personal injury compensation claim against NRMA in respect of a motor vehicle collision said to have occurred at 1.10pm on 6 April 2014 on the M4 Motorway near Homebush, New South Wales. The claim falsely indicated that she had attended Canterbury Hospital after the collision. NRMA was the provider of the compulsory third party insurance in place for the at fault vehicle.

27. In June 2015 NRMA received the following three doctors' reports:

1. a report from Dr Klaas Akkerman of 3 March 2015. This is the report the subject of the Form 1 offence,

2. consultation report of clinical findings and recommendations from Dr Medhat Guirgis of 16 March 2015, and

3. medical legal report and opinion from Dr Medhat Guirgis dated 22 April 2015. This is the report the subject of count 2.

28. The report from Dr Guirgis dated 16 March 2015 included:

1. Ms Bader had post-traumatic mechanical derangement of her cervical spine,

2. Ms Bader had post-traumatic symptoms in the right shoulder joint,

3. Ms Bader had post-traumatic mechanical derangement of lumbar spine,

4. Ms Bader had post-traumatic symptoms in her right temporomandibular joint,

5. Ms Bader had post-traumatic stress disorder.

29. The report from Dr Guirgis dated 22 April 2015 included:

1. Ms Bader required physiotherapy costing between $1,500 and $2,000 per year for three to five years,

2. Ms Bader had a whole person impairment of 21%.

30. Dr Guirgis did not author or sign the two reports and had no record of a patient named Noura Bader. The reports from Dr Guirgis were examined forensically and the offender's fingerprints were found on them. The offender authored the reports with the intent of helping his former wife Bader to strengthen her claim against the CTP insurance provider.

31. The Form 1 offence occurred in the following circumstances.

32. The report from Dr Akkerman dated 3 March 2015 included:

1. he conducted an examination of Ms Bader on 2 March 2015 in Sydney,

2. Ms Bader reported symptoms including difficulty sleeping, concentration and memory problems, low energy, low appetite, nightmares, and flashbacks,

3. he diagnosed Ms Bader with post-traumatic stress disorder and major depression,

4. Ms Bader was totally unfit for work,

5. Ms Bader had a whole person impairment score of 24%,

6. Ms Bader would benefit from seeing a psychiatrist and taking antidepressant medication for three years.

33. Dr Akkerman did not author or sign the report as he was overseas on 2 March 2015 and had not conducted an examination of Ms Bader. The offender authored the report with the intent of helping his former wife strengthen her claim against her compulsory third party insurance provider. The document was examined forensically and the offender's fingerprints were found on it. The total amount paid out by NRMA in respect of Ms Bader's claim was $3,155.94, of which $129.01 was paid directly to her account.

34. I note that these facts are signed by the offender, his lawyer, and on behalf of the Crown.

35. Included in the Crown bundle are the two documents prepared on the letterhead of Dr Medhat Guirgis, to which I referred, providing the text from which the earlier representations were drawn in each case. The documents reflect a level of sophistication in their production and the facts asserted falsely by the offender for the purposes attributed to him in the agreed statement of facts. There is also the report crafted by the offender purporting to be from Dr Akkerman. Once again this has reflected a level of sophistication in the form in which it was presented, and the representations that were advanced from which the summary was drawn in the agreed statement of facts. For example, the document includes responses to points that were asked to be addressed, namely the history of the accident, the findings upon examination, the diagnosis, the prognosis, and the details of treatment required. Prognosis is said to have been guarded. There is a table setting forward the whole of person impairments the document purports to attribute to the offender's former wife.

THE OFFENDER

36. The offender was born in 1986 and thus turns 36 years of age this year. He was 29 years of age at the commencement of the offending with which he is charged, I note once again this was in the range of 26 January 2015 through to 28 March 2017.

37. He has a record of criminal antecedents. He was charged in August 2015 with a series of offences of dishonestly obtaining financial advantage by deception between November 28, 2011 and February 10, 2014. There were seven offences of which he was convicted in March 2016 and suffered periods of imprisonment of two years to be served by way of intensive corrections order, apart from one matter that resulted in a bond pursuant to s 9 Crimes (Sentencing Procedure) Act 1999. That was for a period of three years.

36. The material included in the Crown bundle also has the certificate of conviction in the Local Court following those proceedings, the fact sheet informing the magistrate of the circumstances of those offences, and the judgement on sentence by the Deputy Chief Magistrate who determined the matter on 9 March 2016. Drawing from the facts in that matter, the offender fraudulently created and processed 194 Insurance Australia Group Ltd compulsory third party claim payments and caused these to be electronically transferred into a number of bank accounts in his name, in the name of his former wife Noura Bader, and into accounts in other names as particularised in the document. The document includes his history of employment with that company, in the course of which he perpetrated these frauds, which continued through until his departure on leave on 4 March 2014.

37. At the time of his employment and his departure he was earning a salary of $60,000 plus a 13% superannuation allowance, taking his package to $70,800.

38. On 5 March 2014 he sent an email to his team leader wanting to settle a particular claim. That was found to contain a discrepancy, and consequently the company retained a firm to embark upon an internal audit for claims processed by the offender during his employment period. This identified the 194 false claims that were created and processed by him. It revealed payments in respect of medical providers. The offender as a claims manager for the claim at the time of payment prepared or approved or authorised the payment transactions. The details of the frauds perpetrated in each instance are thereafter described in the document, together with the particulars of conduct upon which he engaged.

39. This involved a measure of sophistication I might say. He was ultimately dealt with after he attended the police at Sydney City Police Station on 14 August 2015 and was thereafter charged. He declined the opportunity to participate in an interview, which he was perfectly entitled to do. In addition to those matters on his record, he has a conviction for driving with an illicit drug present in his blood, for which he was fined and disqualified. Notwithstanding that the offending for which he is to be sentenced today was during the period of the intensive corrections orders, they were not revoked. The reasons for that decision are unknown, but it would be relevant that these proceedings were indicated as defended at the time, which might well have discouraged the parole authorities from revoking the orders. The Court simply does not know one way or the other.

40. The offending was in breach of the s 9 bond. The offender admitted the breaches and consented to this Court dealing with them. Considering the sentences I am to impose I have decided to take no action upon those breaches.

41. The antecedent record does not aggravate the objective seriousness of the offending before the Court and does not demand an increase in the appropriately proportionate sentences to be identified, but it does bring into question the weight to be attributed to assertions of good character offered on his behalf, and informs the assessment of the need for personal deterrence and prospects of rehabilitation, particularly considering the nature of the past misconduct upon his employer, that he was subject to those proceedings and the conditional liberty that followed at the time of the offences which are before this Court, and evaporates the extent to which he might otherwise had leniency in the sentences to be selected.

42. Material tendered in his case was not accompanied by any evidence by the offender, and thus the Court is left to consider the weight to be attributed to representations said to have been made by him during an assessment by Dr Olav Nielssen. Bearing in mind the caution urged by Wilson J in the decision in Imbornone v R [2017] NSWCCA 144. When the matter was presented there were representations in Dr Nielssen's report which were identified as incorrect, and these were addressed.

43. Dr Nielssen is a psychiatrist. The opinions he ultimately offered were dependent upon the truth and accuracy of representations given by the offender during the consultation, conducted by audio visual link between Dr Nielssen and the offender who was at that time held at the John Morony Correctional Centre on 28 October 2021. Dr Nielssen also had available the indictment, the statement of agreed facts, the Form 1, his criminal history and the report from psychiatrist Dr Stephen Allnutt written on 7 December 2015. That was not tendered in this case. I understand it was prepared for the assistance of the Court called upon to deal with the offender for his earlier misconduct.

44. He confirmed to Dr Nielssen that he had entered pleas of guilty, and confirmed the account of what took place in the statement of agreed facts as correct. He asserted that the drawn out nature of the proceedings had a very adverse effect upon his mental state. He noted that the matter has been going on since 2016. He had been on bail for some four years and then in breach of bail was confined in gaol for some seven months. The time it has taken this matter to come to finality is a matter which has been asserted in support of the offender in mitigation of the sentences to be determined.

45. He represented to the doctor that he was a physiotherapist by trade and a co-owner of the practice. He said he was dealing with a lawyer who was referring clients for assessment, and that because he was aware of what the others were doing, he was participating in a criminal group. He said, "I knew about it and I turned a blind eye". He continued, "I did not make any financial gain." Those latter two representations were conceded to be wrong. Clearly, he was not simply a participant in activities within that enterprise, turning a blind eye to the misconduct of others. He had a far more significant role as reflected in the facts to which I referred.

46. With regard to the document prepared to assist Noura Bader, he is attributed with the proposition that the falsification was from the referral of his former partner to a doctor for a report, and an appointment she did not attend. He said she only benefited by $120, and she was given a “s 10“. That refers to the proceedings that were brought against her, and the ultimate outcome in the District Court after she appealed from the conviction suffered in the Local Court. I shall come to those proceedings in due course.

47. The representation made to Dr Nielssen is wrong, bearing in mind the acknowledgement that he authored the report created for the purposes of that fraudulent behaviour. He also said that he did not know why the matter was taking so long to be finalised. He said it was nothing from his end. He said it was all the police and the DPP. It took them three years to certify the charges. He complained of the bureaucratic process and that he was "on the other end of the stick". There was something about a plea deal that the Crown reneged upon. Then COVID struck and then they came back and gave the same deal that they offered in the previous interactions.

48. I do not know the detail of any of that. That material is not before me, although there have been submissions by the Crown in relation to the impact of delay, and so too on behalf of the offender to which I shall come. He spoke of being anxious and depressed during the years he was on bail. It is conceded that there is no causal relationship at all between whatever anxiety or depression he might have experienced, and the misconduct upon which he engaged. I would not have any difficulty concluding that the fact that he is in gaol facing incarceration for a further period of time before he is eligible for parole would of itself cause anxiety and at least some level of melancholy, if not depression.

49. He complained of poor sleep, lack of energy, loss of motivation and interest and prominent anxiety symptoms with a pattern of negative thinking. He spoke of having lost all his friends, all his contacts, but that was life and he was copying with it. He said the time for grudges is over, he has accepted gaol and he was hoping that the future holds better. Assessing that series of attributions of course must be made within the illumination provided by the false doctors' reports that he prepared and the advice he gave to clients upon how to misrepresent their circumstances to maximise the claims that they were encouraged to pursue. I do not know of what he speaks with regard to grudges, bearing in mind the significant role that he had to play in this enterprise.

50. He spoke of substance use which evolved while he was on bail, beginning with cocaine and gamma hydroxybutyrate and Alprazolam, also known as Xanax. He said that he resorted to these substances to alleviate his feelings of depression and the black himself out.

51. He is then attributed with another misrepresentation. He spoke of having come to Australia in 2010. He married. His father had to have surgery, and that as a consequence he committed his first crime to pay for that. He said he told his employer and owned up, and then he moved on and started his own business. This is not accurate either. He was detected in his fraud when employed by IAG. His employer then embarked upon the investigation which uncovered the extent of his misconduct, and he was called in by the police but chose not to participate in an interview, which he was perfectly entitled to do and he bears no burden as a consequence of exercising his right to silence. But the misrepresentation to Dr Nielssen on that point is clearly demonstrated. He provided a psychiatric history. I have no further information regarding this, but the Crown has not sought to challenge any of these facts, and so I bring it into account. It is appropriate to find that hardship through formative years is a matter that is relevant to the assessment of a person's punishment. The learning that has been provided through the High Court in cases recently decided dealing with Indigenous offenders applies equally to all who are charged with criminal offences, regardless of their ethnicity. According to this document the offender was born in a refugee camp in the Middle East. His father was required to leave Palestine as a refugee. His circumstances caused a delay in his physical an intellectual development. He was a sickly baby but once he had the opportunity to attend school he did well. He had no difficulty with literacy or numeracy. He said he was subject to discrimination, including when the family moved to Jordan. He had no mental health care as an adult because he said he could not afford that luxury.

52. He saw Dr Allnutt for the pre-sentence report in his earlier proceedings. Upon his introduction into prison he was referred to a psychologist whom he saw at regular intervals since then. I do not have a report from a psychologist, though there is a case note report to which I shall come. He then claimed to have hallucinations of talking to his grandfather and these became more vivid when in isolation. He spoke of being untrusting of authority.

53. It is difficult to assess the weight to be attributed to whatever difficulties he had through his formative years and his refugee status before coming to this country. But I have brought to account what is provided at p 3 of Dr Nielssen's report, which must be viewed within the context of a man who has had the capacity to do well with education, become professionally qualified and pursue opportunities as discussed in the agreed statement of facts.

54. His medical history is discussed; and nothing of significance is revealed there. His substance use history is discussed, beginning with alcohol and cannabis which he was able to cease when he found it caused him psychosis, and then he moved to cocaine and the gamma hydroxybutyrate, and the Alprazolam. The latter was used to overcome withdrawal from cocaine he said. He said that when he took drugs he felt that he had no problems, but the come down was bad. There is reference to gambling and poker machines. This was elicited in greater detail from Dr Allnutt, but there is insufficient material here to inform the importance of whatever that involved and the extent to which it might have contributed to that misconduct, or the present misconduct.

55. His other history is set forth, including that he is the second of six boys. His siblings appear to have been high achievers. His father of Palestinian heritage was a farmer. He later trained as a teacher. His mother was not well-educated; she suffered paralysis of her leg after a postpartum infection. The family history extended back to the families of his parents, who were originally from Jaffa. Both moved to the West Bank in 1970 and were displaced in 1973 by war, after which his mother's family went to Syria. His father's family went to Jordan. Both parents worked hard to support the offender and his sibling as they were growing up in difficult conditions. He spoke of early years in a refugee camp, and then moving to a suburb outside of Amman. There was discrimination and reduced access to government services in Jordan because of their status; his education was paid for by the family; once again he said his father needed surgery; he had to find the money; he said that $120,000 from his previous offences was sent to Jordan. This was not a matter that was raised in the proceedings before the magistrate in mitigation of penalty, and I have no further information other than what is contained in that first paragraph on p 5 of the doctor's report.

56. He has prospered since coming to Australia. He came here to study when he could not find work in Jordan. He finished a diploma course to qualify as a physiotherapist. He met his wife and married. There was some disharmony with his wife's family. He said he worked at three jobs to support his wife and son during the four years they were together. They had another child, a daughter, during a brief reconciliation, and he said that he remained on good terms with his former partner. He said he started the physiotherapy business with a female partner and an accountant at Bankstown. He said that after he was charged with the previous offences he tried to sell out of the business in order to recoup the money he had borrowed to invest. This cannot be entirely true. He was charged with the prior offences on 14 August 2015.

57. In May 2015 he stood down, as I earlier discussed in the facts, but continued to participate in the criminal group thereafter, albeit not as a director of the enterprise. There is review of the documents including reference to the narrative in the agreed facts and the Form 1 and the entries in the criminal history. but there no further reference to the significance of those documents said to have been reviewed. There is reference to Dr Allnutt's conclusion that the offender met the criteria for major depressive episode with associated panic attacks and problem gambling. That must be looked at with some circumspection in light of the fact that he was continuing in this misconduct even as that report was being presented to the magistrate in mitigation of penalty of the earlier criminality.

58. The mental state examination referred to symptoms of depression as described, but the doctor's opinion was that he was not severely depressed or anxious during the interview. There were no odd usages or apparently delusional beliefs suggesting the presence of an underlying psychotic illness. His concentration was said to be unimpaired during the interview. His registration and retrieval of information was intact, and his intelligence was estimated to be in the higher part of the normal range.

59. Relying upon the history given, Dr Nielssen diagnosed a mood disorder with both depression and anxiety symptoms in partial remission and a substance use disorder in early remission. The diagnosis of a mood disorder was made upon the symptoms described by the offender, and the diagnosis previously made by Dr Allnutt. So too the substance use disorder, which depended upon what was said to the doctor by the offender.

60. Dr Nielssen referred to the proposition that use of these drugs is known to have harmful psychological effects contributing to anxiety and depression. Dr Nielssen referred to the possible inherent vulnerability to mood disorder because it was said that his father had bipolar disorder. Reference was also made to the circumstances of his upbringing in the refugee camp, and then as a non-citizen in Jordan, the effect of the protracted legal proceedings, and the restrictions arising from being on bail for "years on end". He is said to have reasonable prospects for rehabilitation, despite the second sequence of fraud, and despite his suggested propensity for addiction, based upon his above average intelligence and demonstrated initiative.

61. The report must be assessed in the light of the misrepresentations made by the offender to Dr Nielssen, and the concession made that whatever Dr Nielssen's opinion might have been, it could not be said that any of the conditions advanced were in any way causative of the misconduct on which the Court is to determine sentence.

62. Relevant to his prospects of rehabilitation he has embarked upon courses in custody and there are certificates before me, including one speaking to his completion of a "Positive Lifestyle Program" conducted by the Salvation Army, his work history, and the skills that he demonstrated. The report comes from the chief of industries in Corrective Services. He completed the course "Getting Past Addiction" for which there is a certificate. He has a certificate for demonstrating a positive attitude with a willingness to participate in a polite, respectful manner, and he enrolled at Western University for 19 February 2019 to study the principles of cardiac sonography and the practice of cardiac sonography; all that I have is the proof of enrolment there.

63. Of significance in this matter is that his son, who is now ten, about to turn 11, has a diagnosis of attention deficit hyperactivity disorder, for which he is prescribed Ritalin, the particulars of which are in a report from Dr Joseph Macdessi included in the defence bundle. He also has a loculated lesion of the trochanteric bursa which was discovered upon the investigation of hip pain that the child reported. The investigations included the possibility of tuberculosis, which appears to have been discounted in light of the MRI images of the areas to which I referred, and for which surgery is suggested. In that regard, reflecting upon this public health system that we have now, it appears that he had arrangements in place for that procedure on 27 July 2021, on 18 October 2021, and then a third document referring to 8 October 2021 all advising that the boy is on the Westmead elective surgery waiting list to undergo treatment. Thus, it appears there were two admissions that were not ultimately provided, and as of October 2021 he is on a waiting list for that procedure.

64. I bring that to account as part of the burden the offender has in gaol while his son is suffering those difficulties. It must impact upon the level of punishment that he suffers while he is in gaol. I note that there is recent discussion, and a decision that was published from the Court of Criminal Appeal dealing with Federal offences and the perception that hardship upon members of a family could only be brought to account or would only impact upon sentence if they fell within the terms of exceptional circumstance: Totaan v R [2022] NSWCCA 75. Although this is not a federal offence, in keeping with what I understand to be the appropriate approach to these matters, the difficulties experienced by an offender's family should not be ignored when assessing the punishment that the offender suffers, and the burden experienced in gaol, when not available to a child as in this case suffering significant ill-health.

36. There is a character reference provided by Sheikh Aiman Hamdan speaking of the offender as a well-mannered, presentable character, a role model to the youth, assisting in the youth programs, encouraging young people to keep away from street life, gangs and drugs. He describes the offender as a true asset to the centre, and to society in general.

37. There is an offer of employment by a labour hire and structural wall installer. As I understand that will be available when he is released,.

38. There is a letter written by the offender acknowledging his wrongdoing, the significant breach of his faith in embarking upon the misconduct that has the difficulty that he has caused leaving his wife to fend for herself and the children and allowing hatred towards his previous employer to blind him to the clearly illegal decisions and actions he has made. He recognises that is not an excuse. am not quite sure what the hatred is that he refers to.

39. He continued p 2 that the attempt to hide behind the lawyer who referred him to the clients, or referred the clients to him, and instructed him to provide the illegal advice, was, in his words, just another weak excuse to try and deny his culpability and wrongdoing. This is in some contrast with the admitted role to be gleaned from the agreed statement of facts. The precise extent of the participation of the firm of lawyers in this misconduct is not articulated, and there is nothing before me elsewhere to indicate that they were instrumental in any of the role he played.

40. The reality of gaol has been sobering, according to his letter. It has had a powerful positive impact upon him, and he asserts in terms that he will serve out his custodial component and embark upon a new life free of misconduct. There is also a case note report. This begins in February 2016 and predates the determination of the matter before the magistrate on 9 March 2016. Thus, the first part of the report deals with the offender reporting to Community Corrections, I would expect for the assessment of his suitability for an intensive corrections order. The first part of this report deals with five sessions with a Tim Watson to address gambling issues. He is attributed with having described a vicious cycle, working long hours, going to the pub to wind down, gambling, accruing large debts, and then embarking upon the offence before the magistrate, as I understand it to repay those debts, mixing with the wrong crowd, ultimately bringing him to the point where he no longer had the problem that led to his difficulties. There is nothing in that describing the need to send money back to his family, as represented elsewhere.

41. Then there is another entry on 16 February 2016 where the intensive corrections order requirements are outlined. On 1 March 2016 available work was confirmed. On 4 August 2021 the entry is at a time when he was in custody at the John Morony Centre. He is said to have a good attitude towards the work he was given there in the despatch area of the buy-ups unit. He is recorded as being one who followed directions well, was always polite and courteous, and got on well with the other inmates with an excellent attendance record. On 25 August 2021 there is reference to court appearances, and thereafter the entries deal with his participation in programs and courses, to which I have already referred, his attendance at Court, and his continuing employment as of 16 April 2022 in the John Morony buy-ups program.

42. This material was relied upon on behalf of the offender to demonstrate his capacity for rehabilitation, with his positive attitude in custody which is also reflected in the absence of custodial offences except for one on 19 October 2017 for possessing an offensive weapon. I do not know anything about what that might have involved. I note from the custodial record an entry confirming that he was assessed as suitable for an ICO reinstatement, and for him to be released no later than 30 November 2017, which speaks to the earlier issue that I addressed with the decision not to revoke his ICO.

CO-OFFENDERS

74. The Crown material includes documents relevant to the prosecution of Mohammad Edelbi. In his case he was presented on an array of offences, including an offence contrary to s 93T(1) Crimes Act 1900, five offences contrary to s 192G(b) Crimes Act 1900, and four contrary to s 192E(1)(b) Crimes Act 1900. There was also to be taken into account an array of offences on a Form 1. These were all contrary to s 192D(b) Crimes Act 1900. There were ten in all. They were taken into account when sentence was determined upon count 4, an offence making or concurring in making a false or misleading document, again contrary to s 192G(b).

75. Judge Hock determined the matter. In respect of count 1, the offence of knowingly participate in a criminal group, she indicated as appropriate a sentence of one year and four months. On the remaining offences she specified indicative sentences, ultimately concluding with a sentence of three years in aggregate, with a non-parole period of two years. He given a combined disocunt of 50%, including for the guilty plea. Mr Edelbi sought and was granted to appeal in the Court of Criminal Appeal, and in lieu of the sentence specified by her Honour, that Court specified an aggregate of one year and 11 months, commencing on 16 June 2021, to be served by way of an intensive corrections order in the community.

76. The Crown correctly points out that the effect of the order of that Court was that Edelbi suffered an overall sentence of three years because he had been in custody for 13 months until the determination of the application for leave to appeal, and thus the outcome for him reflected a custodial component of 13 months with supervised release in the community by way of an intensive corrections order for one year and 11 months, leaving intact the overall period of three years identified by her Honour.

77. The offender's wife was dealt with for one offence contrary to s 254(b)(i) Crimes Act 1900, and although convicted in the Local Court, was successful in achieving the application of s 10 Crimes (Sentencing Procedure) Act 1999 in the District Court as I understand the history of the matter. So, although one needs to turn to what occurred with those other offenders, it should not be overlooked that there are significant points of dissimilarity between them and the offender before me.

78. In the case of the offender's former wife, she was charged with one offence and she was dealt with in the Local Court. That offence was one that arose from her use of the falsified medico-legal report, the subject of count 2 with which this offender is charged. She had no criminal history and thus the outcome that she ultimately achieved could not be said to be beyond the range of what was appropriate in the circumstances.

79. Insofar as the co-offender Edelbi is concerned, the parity question only arises in respect of the offence of participation in a criminal group contrary to s 93T(1) Crimes Act 1900. He was also convicted of ten fraud offences, as I have indicated. The Crown asserts that the culpability of this offender is marginally less than that of Edelbi, and Edelbi received a significant discount for assistance, as I indicated.

SUBMISSIONS

80. The submissions made by the Crown and on behalf of the offender were comprehensive and helpful.

81. Dealing first with what the Crown had to say, a summary of the facts was provided. The Crown asserted that the first count falls within the mid-range of objective seriousness. Upon my assessment it falls marginally above mid-range, bearing in mind the length of time in which the offender participated in the group, the not insignificant amount of money that was involved in the activities that the group engaged upon, and the role performed by the offender within the group, the ability to exploit the opportunities taken was permitted by the conduct of a legitimate business. As was indicated by Mr Price during submissions, there was but a percentage of the overall clientele that were exploited for the purposes of these frauds.

82. Although he initially held the role of director, he then continued on in a professional capacity of some standing with trust and power within the business. There is a breach of trust relevant to the assessment of the misconduct and I was reminded of what Hidden AJ said in Edelbi v R [2021] NSWCCA 122 at para [47], drawing upon Ridley v R [2008] NSWCCA 324, and then at para [48] referring to the concept of breach of trust in this activity. Referring to the remarks of Hock DCJ, Hidden AJ wrote in para [48]:

“So, it is here. Members of the community contribute to the provision of compulsory third party insurance and have an interest in the integrity of the system. Whether or not the present case falls within the precise terms of s 21AA(2)(k), her Honour's finding of a breach of trust in this context was open and was appropriate.”

83. The Crown also points in the assessment of objective seriousness to the financial motivation and the level of sophistication and planning which is patent in the material before me, including the construct and presentation of the medical reports to which I referred. Count 2, which was in respect of one of those medical reports, the Crown concedes falls below the mid-range which I accept, but is not at the lowest end, and I would suggest perhaps a little more than marginally below mid-range. Once again, it involved planning and sophistication, impersonating a medical practitioner, requiring an understanding and knowledge of the facts asserted in the documents so that they would pass the scrutiny of the officers to whom the report could have gone. It was financially motivated. There was again a breach of trust. It is acknowledged that the amount of money involved was of modest proportion.

84. Assessing objective gravity is always a matter of judgement and minds often differ. Assistance is available from what was said by Johnson J in Tepania v R [2018] NSWCCA 247 dealing with standard non-parole period offences but pointing out that such consideration is required in respect of all matters, whether standard non-parole period offences or not.

85. The financial motivation is clearly established in my assessment of the matter, but the precise need, if there was one, is not clear to me on the material that I have and in the absence of evidence from the offender.

86. The Crown identifies as aggravating factors the conditional liberty, which should be assessed in terms, as I earlier discussed, the organisation and planning of the criminal activity is identified, and again the financial gain. But the Crown urges caution to avoid the possibility of double counting when bringing these matters to account; that is the planned and organised nature of the activity and the purpose of financial gain. Though they appear as aggravating factors in s 29A(2)(n) and (o) respectively, my preferred course is not to bring them to account as such in my assessment of objective seriousness but noting their characteristics in the factual matrix.

87. The Crown dealt with the subjective features that are to be gleaned from the material tendered on behalf of the offender, pointing to the similar pattern of offending in the previous misconduct, and the misrepresentations found in what was said to Dr Nielssen. The Crown urges appropriate weight to be given to aspects of specific deterrence. The offender cannot come before the Court as a person of good character. The expressions of remorse should be considered with caution; I agree with that proposition. Prospects of rehabilitation are guarded. I might say that he, certainly on the material I have, has the capacity to rehabilitate.

88. I have come to the view that I should give him the benefit of a finding of remorse and contrition, albeit without the opportunity of having heard evidence from him and notwithstanding the misconduct of the past. But bearing in mind that he is in gaol for a lengthy period of time and about to continue for a not insignificant period before he will be released to parole, and in light of the good conduct that he has demonstrated whilst in custody, it would appear that I should allow him the benefit of a finding of remorse, and that there are prospects for rehabilitation.

89. The Crown concedes that there is an infection through delay after committal from a combination of factors, including a stay application made by the offender, COVID-19, and the negotiations ahead of the trial. The parties seem to be almost ad idem on that point. Pre-sentence custody and parity were addressed with reference to statistics; caution is required when dealing with those.

90. The Crown spoke to those matters when the hearing first came before me, and Mr Price did the same with his submissions, urging me to consider the principle of parity when deciding what to do with this offender, considering what occurred to the others. Helpfully Mr Price was able to provide me with the details of what happened to the offender's wife in the Local Court.

91. The delay in finalising these proceedings is said to be in no way attributable to the offender. I cannot make a finding in those terms because I do not have enough material before me to conclude that but considering the concession by the Crown I do not overlook that there has been delay such that the offender was at least to some extent been burdened with protracted negotiations leading to the ultimate resolution of the matter to proceed as it has before me. I do not have any particulars of the bail conditions to which he was subject when he was at large. It is suggested that he was reporting daily and has a residential condition for a period of 18 months. Reporting was reduced until his re-arrest. I have brought to account the fact that he was subject to bail conditions. Daily reporting does not seem to me to be exceptionally onerous in the circumstances; the residential condition I take that to be a reference to the fact that he had to live at a particular address.

92. The fact that he is subject to bail is a matter that should be brought to account, including the extent of the conditions as are summarised in the submissions put on his behalf. I am also told that he spent 42 days in isolation due to COVID restrictions. This is a continuing problem for all people in custody and I bring that to account. It is conceded in the written submissions that the representation that the offender made no financial gain set forth in para 3 on p 2 of Dr Nielssen's report is not relied upon; it was an error. The assessment of general deterrence must be within the context of the diagnosis made by Dr Nielssen it is said. The prospect of rehabilitation I am asked to accept and I have agreed with that.

93. Special circumstances are urged; there is an array of material upon which I find special circumstances, including his plea of guilty, that this is his first time in custody, there are ongoing COVID-19 issues in gaol; there is the question of delay in having the matter resolved. The mental issues identified by Dr Nielssen are not so profound as to suggest without more that they amount to special circumstances, however, bearing in mind that I have made a finding that prospects for rehabilitation exist, he will benefit for a longer period on parole than would be available upon the application of s 44 Crimes (Sentencing Procedure) Act 1999. It is conceded that s 5 is engaged, that the threshold has been crossed, and that the matter should be dealt with by way of a full-time sentence of imprisonment.

94. Mr Price has given me some assistance with specifying a range of times that should be employed. I am not persuaded that I should adopt the range that he has proposed, but we are not too far apart.

CONCLUSION

95. The purposes for which a Court should impose a sentence of imprisonment are all engaged in this case. He must suffer appropriate punishment, particularly considering the history that is before me with past offending of like nature. He must suffer a sentence that will reflect specific deterrence and also the need to deter others who might be tempted to engage in similar conduct. The need to protect the community from the offender is also of some significance in this case in light of the history that he has accumulated so far. Rehabilitation of the offender should be promoted, and hopefully the structure I have adopted will work towards that. He must be made accountable for what he has done.

96. His conduct must be denounced, as was clearly pointed out in the earlier decision by Hidden AJ. All of us in the community who have access to the compulsory third party scheme rely upon the integrity of that enterprise to ensure appropriate levels of contribution are not increased through fraudulent misconduct that might deplete the fund available, and to make sure that the fund is an operative and effective fund to assist those who are unfortunately injured in motor vehicle collisions. To this end, his conduct although not focused upon any individual in the community, was conduct that is harmful to the community more generally.

orders

97. The offender acknowledged that his misconduct was in breach of the s 9 bond to which he was subject at the time. Considering the penalty I am about to impose and as the bond has well and truly expired, as have the earlier sentences of imprisonment, I find that the breaches have been proven but I shall take no action.

98. I have decided on an aggregate sentence of imprisonment. The sentence will be one of a non-parole period of 2 years from 26 June 2021 with an overall sentence of 3 years and 4 months. The offender will be eligible for release to parole on 25 June 2023.

99. The indicative sentences I find appropriate for each of the charges upon which the offender was presented are:

• For the offence of participation in a criminal group, a sentence of 2 years and 4 months, reduced to that level by the discount of 15% for the plea of guilty.

• For the offence of the false document to obtain a financial advantage, taking into account the offence on the Form 1, a sentence of 2 years and 10 months, reduced once again by the discount of 15% for the plea of guilty.

100. I shall certify the Form 1 to confirm that I have taken the additional offence into account.

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Decision last updated: 17 June 2022