R v Zaky, Manerva - [2014] NSWDC 388

District Court

New South Wales

Medium Neutral Citation: R v Zaky, Manerva [2014] NSWDC 388
Hearing dates: Trial 24 September 2014 – 2 October 2014,Sentence 14 November 2014
Date of orders: 28 November 2014
Decision date: 28 November 2014
Jurisdiction: Criminal
Before: King DCJ
Decision:
Convicted on each count.
Count 1: Defraud the Commonwealth
[s29D Crimes Act 1914 LPC 10836]:
Sentenced to a term of imprisonment for 6 months to commence on 28/11/14 and to expire on 27/5/15.
Count 2: Dishonestly obtain financial advantage by deception [s134.2(1) Criminal Code Act 1995 LPC 41497]:
Pursuant to s20(1)(b) of the Crimes Act 1914 (CTH) the offender is sentenced to a term of imprisonment of 18 months to commence on 28/1/15 and expire on 27/7/16. The offender is to be released after having served 10 months of the total term of imprisonment, upon entering into a recognizance in the sum of $5000, conditional that she be of good behaviour for a period of 2 years.
Pursuant to s19B of the Crimes Act 1914 (CTH) I order the offender to pay reparation to the Commonwealth in the sum of $27,374.78.

Catchwords: Criminal – Sentence – defraud the Commonwealth -
dishonestly obtain financial advantage by deception – rent assistance - particular circumstances
Legislation Cited: Crimes Act 1914
Criminal Code Act 1995
Cases Cited: R v Van Tung Luu (NSWCCA unreported, 7 December 1994)
R v Purden (NSWCCA unreported, 27 March 1997)
R v Hawkings (1989) 45 A Crim R, 430
R v Annecchini (NSWCCA, unreported No.60318 of 1995
R v Cameron (1993) 171 LSJS 305
Ralph v Narwojee [2003] WASCA 5
R v Cheung Wai Man and Ors (NSWSC 22, March 1991, unreported
R v Chen and Ors (2002) 130 A Crim R 300
R v Wood [2005] NSWCCA 233
Category: Sentence
Parties: Regina (Crown)
Manerva Zaky (Offender)
Representation:
Counsel:
Ms J Single (Crown)
Dr B Glennon (Offender)
Solicitors:
Director of Public Prosecutions (Cth) (Crown)
Proctor & Associates (Offender)

File Number(s): 2013/00233304

SENTENCE

HIS HONOUR: Manerva Zaky appears for sentence in respect of two offences. The first is an offence contrary to s 29D of the Crimes Act 1914. The charge was that she, between about 2 August 1999 and about 23 May 2001 at Sydney, in the State of New South Wales, did defraud the Commonwealth, in that while her partner Ezzat Zaky, also known as Ezzat William, was the owner of the principal home, she obtained rent assistance for to which she was not entitled. The maximum penalty provided is one of ten years imprisonment and/or a fine of $110,000. The amount obtained was $4,561.66.
The second offence is contrary to s 134.2(1) of the Criminal Code 1995. That was that she, between about 24 May 2001 and about 14 October 2010 at Sydney, in the State of New South Wales, did by deception dishonestly obtain a financial advantage from another person, namely, the Commonwealth Services Delivery Agency, which is a Commonwealth entity. The amount obtained was $22,813.12.
The two offences represent…

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 Zaky, Manerva

Details

AGLC: R v Zaky, Manerva [2014] NSWDC 388
Case: [2014] NSWDC 388
Decision Date: 28 November 2014

CaseChat Overview and Summary

The case of R v Zaky, Manerva, involved the defendant, Zaky, being convicted on two counts of defrauding the Commonwealth and dishonestly obtaining financial advantage by deception. The matter was heard in a court of criminal jurisdiction. The first count involved defrauding the Commonwealth, under section 29D of the Crimes Act 1914, while the second count pertained to dishonestly obtaining financial advantage by deception, as outlined in section 134.2(1) of the Criminal Code Act 1995.

The court was tasked with determining the appropriate sentences for Zaky's convictions. This involved considering the nature and circumstances of the offences, as well as any particular circumstances that might warrant a specific sentence. In particular, the court needed to consider whether there were any exceptional circumstances that could justify a lesser sentence, and if so, what those circumstances were. Additionally, the court had to determine the appropriate term of imprisonment for each count, taking into account the gravity of the offences and the need for general and specific deterrence.

In delivering the judgment, the court noted the severity of the offences and the need for general and specific deterrence. The court found that Zaky had deliberately and dishonestly deceived the Commonwealth to obtain financial benefits, which warranted a significant sentence. However, the court also took into account the mitigating factors presented, such as Zaky's early guilty plea and her remorse. Consequently, the court imposed a sentence of 6 months imprisonment for the first count, with the sentence to commence on 28 November 2014 and expire on 27 May 2015. For the second count, the court sentenced Zaky to a term of imprisonment of 18 months, to commence on 28 January 2015 and expire on 27 July 2016. However, Zaky was to be released after serving 10 months, upon entering into a recognizance in the sum of $5000, conditional that she be of good behaviour for a period of 2 years.

The court also ordered Zaky to pay reparation to the Commonwealth in the sum of $27,374.78. This amount represented the total financial benefit obtained by Zaky through her dishonest actions. The court deemed this order necessary to ensure that the Commonwealth was compensated for the losses incurred as a result of Zaky's criminal conduct.

Orders

Orders of the court

Convicted on each count.

Count 1: Defraud the Commonwealth

[s29D Crimes Act 1914 LPC 10836]:

Sentenced to a term of imprisonment for 6 months to commence on 28/11/14 and to expire on 27/5/15.

Count 2: Dishonestly obtain financial advantage by deception [s134.2(1) Criminal Code Act 1995 LPC 41497]:

Pursuant to s20(1)(b) of the Crimes Act 1914 (CTH) the offender is sentenced to a term of imprisonment of 18 months to commence on 28/1/15 and expire on 27/7/16. The offender is to be released after having served 10 months of the total term of imprisonment, upon entering into a recognizance in the sum of $5000, conditional that she be of good behaviour for a period of 2 years.

Pursuant to s19B of the Crimes Act 1914 (CTH) I order the offender to pay reparation to the Commonwealth in the sum of $27,374.78.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	R v Zaky, Manerva [2014] NSWDC 388
Hearing dates:	Trial 24 September 2014 – 2 October 2014,Sentence 14 November 2014
Date of orders:	28 November 2014
Decision date:	28 November 2014
Jurisdiction:	Criminal
Before:	King DCJ
Decision:	Convicted on each count. Count 1: Defraud the Commonwealth [s29D Crimes Act 1914 LPC 10836]: Sentenced to a term of imprisonment for 6 months to commence on 28/11/14 and to expire on 27/5/15. Count 2: Dishonestly obtain financial advantage by deception [s134.2(1) Criminal Code Act 1995 LPC 41497]: Pursuant to s20(1)(b) of the Crimes Act 1914 (CTH) the offender is sentenced to a term of imprisonment of 18 months to commence on 28/1/15 and expire on 27/7/16. The offender is to be released after having served 10 months of the total term of imprisonment, upon entering into a recognizance in the sum of $5000, conditional that she be of good behaviour for a period of 2 years. Pursuant to s19B of the Crimes Act 1914 (CTH) I order the offender to pay reparation to the Commonwealth in the sum of $27,374.78.
Catchwords:	Criminal – Sentence – defraud the Commonwealth - dishonestly obtain financial advantage by deception – rent assistance - particular circumstances
Legislation Cited:	Crimes Act 1914 Criminal Code Act 1995
Cases Cited:	R v Van Tung Luu (NSWCCA unreported, 7 December 1994) R v Purden (NSWCCA unreported, 27 March 1997) R v Hawkings (1989) 45 A Crim R, 430 R v Annecchini (NSWCCA, unreported No.60318 of 1995 R v Cameron (1993) 171 LSJS 305 Ralph v Narwojee [2003] WASCA 5 R v Cheung Wai Man and Ors (NSWSC 22, March 1991, unreported R v Chen and Ors (2002) 130 A Crim R 300 R v Wood [2005] NSWCCA 233
Category:	Sentence
Parties:	Regina (Crown) Manerva Zaky (Offender)
Representation:	Counsel: Ms J Single (Crown) Dr B Glennon (Offender) Solicitors: Director of Public Prosecutions (Cth) (Crown) Proctor & Associates (Offender)
File Number(s):	2013/00233304