R v Zaky, Manerva - [2014] NSWDC 388

No judgment structure available for this case.

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 a continuous period of offending which has been broken into two periods simply because of a change in the legislation when the offence, which had been provided by 29D of the Crimes Act, changed to being an offence under s 134.2(1) of the Criminal Code. In respect of the Criminal Code offence, the same period of ten years’ imprisonment is provided and/or a fine of $66,000.
The matter proceeded as a trial by jury, and the offender was found guilty of each of the offences on 2 October 2014.
I find the following facts beyond reasonable doubt, consistent with the verdicts of the jury:

NATURE OF ALLEGED OFFENCES

1. The alleged offences arise out of the offender claiming and receiving rent assistance between about 2 August 1999 and about 14 October 2010, whilst she was residing in a family residence purchased and owned by her husband Ezzat Zaky, in the name “Ezzat William”. As a result, the offender was paid $27,374.78 in rent assistance to which she was not entitled.

CLAIMS AND REVIEWS AND RELATIONSHIP WITH EZZAT ZAKY

THE 1988 FAMILY ALLOWANCE CLAIM

2. On 10 May 1988, the offender made a claim for family allowance in respect of her son, Shawn Zaky, born on 6 May 1988. The form was co-signed by “E Zaky”, as the offender’s partner.

THE 1991 FAMILY PAYMENTS CLAIM

3. On 3 June 1991, the offender lodged a claim for family payments in respect of her son, James Zaky, born on 27 May 1991. Under the section “About your partner: Your partner is your husband...or de facto”, the offender named “Ezzat Zaky”, born 19 May 1953. The question “Other names your partner has been known by” was left blank.

4. The offender was granted rent assistance by Centrelink from 22 October 1992.

THE 1995 DISABILITY SUPPORT PENSION CLAIM

5. On 2 December 1995, the offender signed a Disability Support Pension claim in which she stated her partner was “Ezzat Zaky”, born 19 May 1953. The question “Other name/s your partner has been or is known by” was left blank. The offender listed her address as 6/331 Carlisle Avenue, Mount Druitt, 2770, and said that she paid rent of $175 per week to “John Legerwood R/S North Sydney.”

6. On 5 December 1995, Ezzat Zaky and the offender co-signed an Asset Details form. In response to the question, “Do you or your partner have any assets which you have not advised us about in answer to other questions on forms completed by you?” they both ticked “No”.

PURCHASE OF 6/331 CARLISLE AVENUE, MOUNT DRUITT.

7. On 21 February 1996, Ezzat Zaky, using the name “Ezzat William” purchased 6/331 Carlisle Avenue for $87,500. A New South Wales Land and Property Information Title Search dated 23 August 2010 shows “Ezzat William” as the owner, and a mortgage to Westpac Bank Corporation as a registered interest.

8. As the offender was residing in the family home owned by her husband in the name of “Ezzat William”, she was not entitled to any rent assistance.

9. Centrelink periodically conducts reviews of recipients of pensions, including Disability Support Pension and Rent Assistance to assess the recipient’s ongoing entitlements to payments and to update changes that may impact on a recipient’s payment.

10. On 17 September 1996, the offender was selected for review by a Centrelink “Mobile Review Team”. She was interviewed by the Mobile Review Team on 27 September 1996. The offender indicated during the review that her marital status was “married”, and that she paid private rent of $175 per week to a landlord named “Mr Williams”.

THE 1999 PARENTING PAYMENT REVIEW FORM

11. On 26 July 1999, Ezzat Zaky and the offender co-signed a Parenting Payment Review form, and lodged the form on 2 August 1999. Ezzat Zaky provided the following information:

His partner was Manerva Zaky
His dependent children were James and Shawn Zaky
He was not currently employed. (This was false as the offender was employed fulltime by the Department of Education as “Ezzat William”)
Other income: Disability Allowance to Shawn Zaky
His total assets were $10,000
He paid rent to a Dr William:

Q8. “Accommodation: Do you pay rent, lodging or board...?”
“Yes, $175 to Dr William, PO Box 658 Broadway, 2007”

The offender and Mr Zaky declared that, “The information given on this form is correct.”

THE 2004 CARER ALLOWANCE/PAYMENT CLAIM IN RESPECT OF SHAWN ZAKY

12. On 17 March 2004, the offender and Ezzat Zaky co-signed a Claim for Carer Allowance and/or Carer Payment for their son, Shawn Zaky, in which the offender provided the following information:

That her preferred language was English
That she had a partner, Ezzat (sic) Zaky, DOB 19/05/53, who was her husband, or a de facto
That her current marital situation was “Married”. (Other options included "Separated”)
That the defendant cared for Shawn Zaky, and his medical problems were “intellectually disabled, cognitive disorder, coordination disorder.”
Both declared: “I understand that deliberately giving false or misleading information is a serious offence.”

13. On 6 December 2005, Mr Zaky contacted Centrelink about his concerns for his wife. The Centrelink online document records that;

“He doesn’t believe he has time to work outside home as her health is deteriorating...customer was thankful that Centrelink had contacted him as he wasn’t sure what to do as he believes his age and his wife’s health would make it hard to find work therefore no income.”

THE 2007 CARE ALLOWANCE/PAYMENT CLAIM IN RESPECT OF MANERVA ZAKY

14. On 25 January 2007, Ezzat Zaky made a claim for Carer Allowance and/or Carer Payment in relation to caring for Manerva Zaky, which he lodged with Centrelink on 29 January 2007. The form was co-signed by the offender. In that claim he provided the following information:

Their address was 6/331 Carlisle Avenue, Mt Druitt
Their home telephone number was 9832 3114, held in both his and in his partner’s name
Q.10. “What is your current marital situation? Please tick only one box to best describe your current situation.” ‘Married’ was ticked
The person being cared for: Mrs Manerva Zaky
Q.18. “Do you personally provide care to this person because of their disability or medical condition?” “Yes.” “When did you start to provide this care?” “15/10/95.” “How many days each week do you provide this care?” “Five days each week.”
Q. 21. “Has the person left your care for any reason in the last 12 weeks?” “No.”
Issues ticked: difficulty hearing others, need help or attention during the night, loss of bladder or bowel control, remembering things that happened today, have unusual, inappropriate or repetitive behaviours.
Q. 27, “In addition to Carer Allowance do you wish to claim Carer Payment also?” “Yes.”
Q. 28. “Do you provide constant care to the person ... in their home?” “Yes.”
Q. 32. “Do Centrelink already have current information about your (“and your partner’s”) income and assets?” “Yes.”
Q. 38. “Who do you pay for your accommodation?” “E William PO Box 658 Broadway.”
Q. 39. “What kind of rent, board, lodging or other fees do you pay?” Ticked: rent to a private landlord or real estate agent ...”
Q. 42 “Your and your partner’s tax file numbers: U191896246.
I understand that giving false or misleading information is a serious offence.
The claim was co-signed by Ezzat Zaky and the offender.

Identification documents provided in support of the claim were as follows: driver’s licence for Ezzat Zaky, Medicare card for Ezzat and Manerva Zaky, passport for Manerva Zaky.

This claim was rejected by Centrelink as the offender was found not to require daily care. Centrelink’s records show that on 19 February 2007, the offender indicated to Centrelink that she would talk to her husband regarding the claim rejection.

2007 CARER ALLOWANCE PAYMENT CLAIM IN RESPECT OF JAMES ZAKY

16. On 29 March 2007 (lodged 30 April 2007) the offender and Mr Zaky co‑signed a claim for Carer Allowance and/or Carer Payment in relation to caring for their son, James Zaky, in which the offender gave the following information:

“Do you need an interpreter when dealing with Centrelink?” “No.”
Address: 6/331 Carlyle Avenue, Mt Druitt 2770
Home number: 9832 3114
Q. 9 “What is your current marital situation?” ‘Married’ was ticked (other options include “Separated”.)
Your partner’s details: Mr Ezzat Zaky, 6/331 Carlisle Avenue Mt Druitt
Other names you have been or are known by: (left blank)
Q. 32. “Does Centrelink already have current information about your (and your partner’s) income and assets?” “Yes.”
Q. 35. “Which of the following best describes where you live?” Ticked: I pay rent ... for the place in which I live.
Q. 37. “Do you (and your partner) share with anyone else?” Ticked; No, crossed out, then ticked “Yes.” and initialled
Rent $195 per week
“Who do you pay for your accommodation:” “E William, 6/331 Carlisle Avenue, Mt Druitt?” (The address was crossed out and replaced with P O Box 658, Broadway 2007, 0411369090.)
Q. 39. “What kind of rent or lodging or other fees do you pay?” Ticked - rent to a private landlord or real estate agent (for a house, flat ... )

The offender and her husband each declared that the information they provided on the form was complete and correct, and that “I understand that giving false or misleading information is a serious offence.”

RENT ASSISTANCE CERTIFICATES IN RESPECT OF 6/331 CARLISLE AVENUE, MT DRUITT

17. Rent assistance was paid to Manerva Zaky as a component of her Family Tax Benefit Disability Support Pension. The offender was required to lodge “Rent Certificates” with Centrelink in order to continue to receive Rental Assistance.

18. The offender and her husband Ezzat Zaky lived in the property known as 6/331 Carlisle Avenue, Mt Druitt, owned by her husband in the name of “Ezzat William”, and did not pay rent;

19. The exhibits contained the following rent certificates lodged by the offender, in each of which the true ownership of the property in which she dwelt and her payment of rent was misrepresented.

(i) 20 December 2007 Rent Certificate (Lodged 27 December 2007).