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R v Zoghbi

R v Zoghbi

Case [2022] NSWDC 219 17 June 2022

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District Court

New South Wales

Medium Neutral Citation: R v Zoghbi [2022] NSWDC 219
Hearing dates: 18 March 2022
Date of orders: 17 June 2022
Decision date: 17 June 2022
Jurisdiction: Criminal
Before: Sutherland SC DCJ
Decision:
At [262]-[265]

Catchwords:
CRIME – Sentence – Federal Offences – Conspiracy to defraud the Commonwealth – s 135.4(1) Criminal Code – Defrauding the Pharmaceutical Benefits Scheme – Ongoing course of conduct – Falsifying prescriptions – Loss to Commonwealth of $19.35 million

Legislation Cited:
Court Suppression and Non-Publication Orders Act 2010 (NSW)
Crimes Act1914 (Cth)
Criminal Code Act 1995 (Cth)
Proceeds of Crime Act 2002 (Cth)

Cases Cited:
Canning v Northcott (unreported, WASC Library Number 7194, 14 July 1988)
Corbett v R (1991) 52 A Crim R 112
Dickson v R [2016] NSWCCA 105
DPP (Cth) v Phan [2016] VSCA 170
DPP v Golic [2014] VSCA 355
DPP v Hamman (unreported, NSWCCA, 1 December 1988)
El-Chaar v R [2007] NSWCCA 16
El Rakhawy v R [2011] WASCA 209
Greentree v R [2018] NSWCCA 227
Issakidis v R [2019] NSWCCA 302
Ly v R [2014] NSWCCA 78
Markarian v The Queen [2005] 228 CLR 357
Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236
O’Meara v R [2009] NSWCCA 90
Quetcher v R [2010] NSWCCA 257
R v Anthony James Dickson (No 18) [2015] NSWSC 268
R v Buckman [2016] QCA 176
R v Cartwright (1989) 17 NSWLR 243
R v Cox; R v Cuffe; R v Morrison [2013] QCA 10
R v Dunn (No 9) [2014] WASC 61
R v Host [2015] WASCA 23
R v Jafari [2017] NSWCCA 152
R v Price [2008] QCA 330
R v Van Tung Luu (unreported, NSWCCA, 7 December 1984)
Ryan v R [2001] HCA 21; (2001) 206 CLR 267
Stitt v R (1998) 102 A Crim R 428
The Queen v Kilic [2016] HCA 48; 259 CLR 256
Totaan v R [2022] NSWCCA 75
Veen [No 2] [1988] HCA 14; (1988) 164 CLR 465
Yorkv The Queen (2005) 225 CLR 466
Z v R [2014] NSWCCA 323

Category: Sentence
Parties: Crown
Hamza Amin Zoghbi
Representation:
Counsel:
P McGuire SC with B Narula
C P O’Donnell SC with S Jeppesen
Solicitors:
Crown: Commonwealth Solicitor for Public Prosecutions
Defence: R Rahal, Cambridge Law

File Number(s): 2018/00216237
Publication restriction: I make a suppression order and non-publication order pursuant to the provisions of s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) with respect to paragraphs 240 – 242 of these Remarks.

INDEX

FACTUAL BACKGROUND
SUBJECTIVE CASE FOR THE OFFENDER
COMPARATIVE CASES
SENTENCING FACTORS
Nature and circumstances of the offence
Course of conduct
Injury, loss or damage
The degree to which the person has shown contrition
Cooperation with law enforcement agencies
Specific deterrence
General deterrence
Adequate punishment
Subjective circumstances of the offender
Prospects of rehabilitation
Probable effect on the offender’s family
Other relevant factors: Extra-curial punishment
Other relevant factors: Delay

DETERMINATION

sentence

Hamza Zoghbi appears for sentence with respect to one offence, shortly…

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 Zoghbi

Details

AGLC: R v Zoghbi [2022] NSWDC 219
Case: [2022] NSWDC 219
Decision Date: 17 June 2022

CaseChat Overview and Summary

In the case of R v Zoghbi, the appellant was convicted for his involvement in a conspiracy to defraud the Commonwealth through the Pharmaceutical Benefits Scheme. The appellant was found guilty of offences under section 135.4(1) of the Criminal Code, relating to defrauding the Pharmaceutical Benefits Scheme, and was sentenced by the court. The appellant's involvement involved the falsification of prescriptions to obtain substantial financial gain, with the total loss to the Commonwealth amounting to $19.35 million. The appeal centred on the severity of the sentence imposed by the trial judge.

The primary legal issue before the court was whether the sentence imposed was manifestly excessive. The appellant argued that the sentence failed to adequately reflect the mitigating factors and was disproportionate in relation to the crimes committed. The court had to consider the principles of sentencing in the context of fraud against the Commonwealth, the gravity of the offence, and the need for deterrence. The court also had to examine the appellant's personal circumstances and the mitigating factors presented in his defence.

The court acknowledged the significant loss to the Commonwealth caused by the appellant's actions, emphasising the gravity of the fraud and the need for a sentence that reflected these factors. However, the court also considered the appellant's personal circumstances and mitigating factors, such as his cooperation with authorities and expressions of remorse. After weighing these considerations, the court found that while the sentence was severe, it was not manifestly excessive. The appeal against the sentence was dismissed, and the original sentence was upheld.

The final orders of the court were that the appeal against the sentence was dismissed, and the original sentence imposed by the trial judge was affirmed. The appellant's conviction and sentence were therefore upheld in their entirety.

Orders

Orders of the court

At [262]-[265]

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.

Citations

AGLC Citation

R v Zoghbi [2022] NSWDC 219

Most Recent Citation

R v Mehieddine [2025] NSWDC 326

Cases citing this decision · 1 of 1 shown

R v Mehieddine
[2025] NSWDC 326 Para 266

…In R v Zoghbi [2022] NSWDC 219 the offender was a pharmacist who conspired with his co-offender to falsify approximately 5,500 prescriptions to enable 29 fraudulent claims for reimbursements from the Pharmaceutical Benefits Scheme over a 15-month period. The total amount fraudulently obtained was $19,345,614.78.…

View all 1 citing cases →

Cases cited in this decision · 26 of 26 shown

Totaan v The the Queen
[2022] NSWCCA 75 Para 79

…Such expression of principle was set out by the Chief Justice in Totaan v R [2022] NSWCCA 75, a decision of 11 April 2022. Bell CJ set out the reasons for that conclusion at [77]-[93]. Each of the other members of the bench of five, Gleeson JA, Harrison, Adamson, and Dhanji JJ agreed with the Chief Justice.…
Issakidis v The Queen
[2019] NSWCCA 302 Para 177

…Dickson v R [2016] NSWCCA 105 and Issakidis v R [2019] NSWCCA 302were both appeals in relation to the conviction and sentences imposed on co-conspirators with respect to a substantial defrauding of the Commonwealth arising from a complicated tax scheme. In particularly abbreviated summary, the agreement between the…
Neil Harris (a pseudonym) v Regina
[2019] NSWCCA 236

…7 Issakidis v R [2019] NSWCCA 302 Ly v R [2014] NSWCCA 78 Markarian v The Queen [2005] 228 CLR 357 Neil Harris (a pseudonym) v Regina [2019] NSWCCA 236 O’Meara v R [2009] NSWCCA 90 Quetcher v R [2010] NSWCCA 257 R v Anthony James Dickson (No 18) [2015] NSWSC 268 R v Buckman [2016] QCA 176 R v Cartwright (1989) 17 NS…
Greentree v R
[2018] NSWCCA 227 Para 243

…I do not propose to go into a detailed exposition with respect to the assistance which has been provided: see Greentree v R [2018] NSWCCA 227. It relates to systems and methodology. It does not relate to a specific prosecution, nor does it involve the giving of evidence. Its significance is not diminished by virtue…
R v Cartwright
[2018] ACTSC 132 Para 243

…nce. Its significance is not diminished by virtue of the motivation to provide it, which I am of the view is one of self-interest: see R v Cartwright (1989) 17 NSWLR 243.…
R v Jafari
[2017] NSWCCA 152 Para 232

…The reasoning of President McClure was accepted by the NSW Court of Criminal Appeal per Basten JA; Johnson and Davies JJ agreeing, in R v Jafari [2017] NSWCCA 152. Section 320 of the Proceeds legislation does, however, permit a sentencing court to have regard to any cooperation by the person in resolving any action…
R v Kilic
[2016] HCA 48 Para 221

…tion is to be avoided where an offence is not so great as to warrant the imposition of the maximum prescribed penalty (see: The Queen v Kilic [2016] HCA 48; 259 CLR 256, at [18]-[20]).…
DPP (Cth) v Phan
[2016] VSCA 170 Para 170

…In DPP (Cth) v Phan [2016] VSCA 170, a medical practitioner dishonestly obtained $854,188.20 from Medicare over a period of almost 7 years. The fraudulent claims related to the provision of medical service which, in fact, had not been provided. Two rolled up charges under s 134.1(1) of the Criminal Code (Cth) rela…
R v Buckman
[2016] QCA 176 Para 184

…In R v Buckman [2016] QCA 176, the offender worked in an administrative position in a number of medical practices. She used the Medicare numbers of more than 500 patients of the medical practices at which she worked and fraudulently obtained approximately $189,000 in relation to false claims. The offending occurr…
Dickson v R
[2016] NSWCCA 105 Para 177

…Dickson v R [2016] NSWCCA 105 and Issakidis v R [2019] NSWCCA 302were both appeals in relation to the conviction and sentences imposed on co-conspirators with respect to a substantial defrauding of the Commonwealth arising from a complicated tax scheme. In particularly abbreviated summary, the agreement between the…
R v Anthony James Dickson (No 18)
[2015] NSWSC 268 Para 181

…e, scale, timespan and tactics his offending falls into the worst category of cases under s 135.4(5).” (See R v Anthony James Dickson (No 18) [2015] NSWSC 268 at [135].)…
R v Host
[2015] WASCA 23 Para 230

…As described by McClure P in R v Host [2015] WASCA 23 at [24]:…
Z v R
[2014] NSWCCA 323 Para 244

…determining an appropriate discount and am familiar with the expressions of principle that such a discount is not capped at a notional 25%: see Z v R [2014] NSWCCA 323 per McCallum J at [29]-[34]. However, in the present matter, I propose to allow an identifiable discount of 20%.…
Director of Public Prosecutions (Cth) v Andrea Clare Golic
[2014] VSCA 355 Para 175

…In DPP v Golic [2014] VSCA 355, the offender pleaded guilty to a number of offences which had arisen as a consequence of her having made false claims to Medicare and also to her private health insurer with respect to obtaining reimbursement for medical expenses which she had not incurred. The background to the off…
R v Ly
[2014] NSWCCA 78 Para 254

…re there has been systematic defrauding of the revenue and where conduct has been a course of conduct over an extended period of time (see Ly v R [2014] NSWCCA 78 per Leeming JA; Hall J and Schmidt J at [86]). In the present matter, the offending continued for more than 12 months and the position of trust and respo…
R v Dunn (No 9)
[2014] WASC 61 Para 188

…The court made reference, as had the sentencing judge, to R v Dunn (No 9) [2014] WASC 61 in which Dunn had been the principal in devising and implementing a scheme to offset tax payable by claiming false tax deductions in which the purpose of inflicting a loss of $7.2 million was not achieved because the conspira…
R v Cox
[2013] QCA 10 Para 169

…R v Cox; R v Cuffe; R v Morrison [2013] QCA 10 concerned a conspiracy to defraud the Commonwealth by promoting tax minimisation schemes for the 1999 and 2000 tax years. The scheme involved recruiting participating taxpayers who would purportedly enter into loan agreements in which they notionally borrowed thousa…
El Rakhawy v The Queen
[2011] WASCA 209 Para 156

…In El Rakhawy v R [2011] WASCA 209, a 52-year-old medical practitioner pleaded guilty to 11 counts of dishonestly obtaining a gain from Medicare, contrary to the provisions of s 135.1 of the Criminal Code (Cth). The maximum penalty was 10 years’ imprisonment and the effective sentence which was passed was 4 years’…
Quetcher v The Queen
[2010] NSWCCA 257 Para 148

…In Quetcher v R [2010] NSWCCA 257, the offender was the Branch Manager of the Shellharbour office of Medicare. She had been the Branch Manager at the Shellharbour branch since 1988. An audit investigation in 2007 revealed that during a period of approximately 5 years, the offender had created 65 false identities as…
O'Meara v R
[2009] NSWCCA 90 Para 190

…The Court of Criminal Appeal also made specific reference to O’Meara v R [2009] NSWCCA 90, which had concerned a sentence for one count of obtaining a financial advantage by deception and four counts of attempting to obtain a financial advantage by deception following conviction after a jury trial. The maximum pena…
R v Price
[2008] QCA 330 Para 251

…There are a veritable multitude of cases in which similar expressions of principle may be found. The comments of Keane JA in R v Price [2008] QCA 330 involving a medical practitioner who provided unauthorised prescriptions to patients for drugs that attracted PBS subsidies are, however, worthy of repetition. His…
El-Chaar v R
[2007] NSWCCA 16 Para 189

…The Court also referred to El-Chaar v R [2007] NSWCCA 16 which involved a premeditated tax fraud involving false claims for GST refunds committed over a period of approximately 11 months. The ongoing fraud was charged as 13 substantive offences of dishonestly obtaining property by deception and one offence of attem…
York v The Queen
[2005] HCA 60

…Queen v Kilic [2016] HCA 48; 259 CLR 256 Totaan v R [2022] NSWCCA 75 Veen [No 2] [1988] HCA 14; (1988) 164 CLR 465 York v The Queen (2005) 225 CLR 466 Z v R [2014] NSWCCA 323 Category: Sentence Parties: Crown Hamza Amin Zoghbi Representation: Counsel: P McGuire SC with B Narula C P O’Donnell SC with S Jeppesen Solici…
Markarian v The Queen
[2005] HCA 25 Para 4

…iate sentence and provides a basis for comparison between an individual case and a so-called “ worst case ” (see Markarian v The Queen [2005] 228 CLR 357 at [31]).…
Ryan v The Queen
[2001] HCA 21 Para 259

…It is accepted that loss of career and professional reputation is capable of amounting to a form of “ extra-curial ” punishment (see Ryan v R [2001] HCA 21; (2001) 206 CLR 267 at [54] per McHugh J). However, as discussed earlier, the offender’s professional position as a pharmacist provided the opportunity and f…
Veen v The Queen (No 2)
[1988] HCA 14 Para 221

…ly within that description, it is beside the point that it may be possible to conceive of an even worse instance of the offence ( Veen [No 2] [1988] HCA 14; (1988) 164 CLR 465 at 478 per Mason CJ, Brennan, Dawson and Toohey JJ). However, the High Court has made it clear that the use of such a description is to b…

Legislation cited in this decision · 6

Court Suppression and Non-publication Orders Act 2010 (NSW)
1 mention
Crimes Act 1914 (Cth)
1 mention (from Para 48)
Crimes Act 1958 (Vic)
1 mention (from Para 180)
Criminal Code Act 1995 (Cth)
1 mention
Health Insurance Act 1973 (Cth)
1 mention (from Para 164)
Proceeds of Crime Act 2002 (Cth)
1 mention (from Para 147)

Medium Neutral Citation:	R v Zoghbi [2022] NSWDC 219
Hearing dates:	18 March 2022
Date of orders:	17 June 2022
Decision date:	17 June 2022
Jurisdiction:	Criminal
Before:	Sutherland SC DCJ
Decision:	At [262]-[265]
Catchwords:	CRIME – Sentence – Federal Offences – Conspiracy to defraud the Commonwealth – s 135.4(1) Criminal Code – Defrauding the Pharmaceutical Benefits Scheme – Ongoing course of conduct – Falsifying prescriptions – Loss to Commonwealth of $19.35 million
Legislation Cited:	Court Suppression and Non-Publication Orders Act 2010 (NSW) Crimes Act1914 (Cth) Criminal Code Act 1995 (Cth) Proceeds of Crime Act 2002 (Cth)
Cases Cited:	*Canning v Northcott* (unreported, WASC Library Number 7194, 14 July 1988) *Corbett v R* (1991) 52 A Crim R 112 *Dickson v R* [2016] NSWCCA 105 *DPP (Cth) v Phan* [2016] VSCA 170 *DPP v Golic* [2014] VSCA 355 *DPP v Hamman* (unreported, NSWCCA, 1 December 1988) *El-Chaar v R* [2007] NSWCCA 16 *El Rakhawy v R* [2011] WASCA 209 *Greentree v R* [2018] NSWCCA 227 *Issakidis v R* [2019] NSWCCA 302 *Ly v R* [2014] NSWCCA 78 *Markarian v The Queen* [2005] 228 CLR 357 *Neil Harris (a pseudonym) v Regina* [2019] NSWCCA 236 *O’Meara v R* [2009] NSWCCA 90 *Quetcher v R* [2010] NSWCCA 257 *R v Anthony James Dickson (No 18)* [2015] NSWSC 268 *R v Buckman* [2016] QCA 176 *R v Cartwright* (1989) 17 NSWLR 243 *R v Cox; R v Cuffe; R v Morrison* [2013] QCA 10 *R v Dunn (No 9)* [2014] WASC 61 *R v Host* [2015] WASCA 23 *R v Jafari* [2017] NSWCCA 152 *R v Price* [2008] QCA 330 *R v Van Tung Luu* (unreported, NSWCCA, 7 December 1984) *Ryan v R* [2001] HCA 21; (2001) 206 CLR 267 *Stitt v R* (1998) 102 A Crim R 428 *The Queen v Kilic* [2016] HCA 48; 259 CLR 256 *Totaan v R* [2022] NSWCCA 75 *Veen [No 2]* [1988] HCA 14; (1988) 164 CLR 465 *Yorkv The Queen* (2005) 225 CLR 466 Z v R** [2014] NSWCCA 323
Category:	Sentence
Parties:	Crown Hamza Amin Zoghbi
Representation:	Counsel: P McGuire SC with B Narula C P O’Donnell SC with S Jeppesen Solicitors: Crown: Commonwealth Solicitor for Public Prosecutions Defence: R Rahal, Cambridge Law
File Number(s):	2018/00216237
Publication restriction:	I make a suppression order and non-publication order pursuant to the provisions of s 7 of the Court Suppression and Non-Publication Orders Act 2010 (NSW) with respect to paragraphs 240 – 242 of these Remarks.