Charkawi v R [2008] NSWCCA 159 | Case summary

4 July 2008 CHARKAWI v R Judgment 1 ALLSOP P: I agree with Price J. 2 ALLSOP P: The orders of the Court are leave to appeal is granted. Appeal dismissed. 3 JAMES J: I agree with Price J. 4 PRICE J: The applicant Mohammed Charkawi pleaded guilty in the District Court to the following offences: (a) Two counts contrary to s 29B of the Crimes Act 1914 (Cth) (the Act); (b) Four counts contrary to s 135.1(5) of the Criminal Code (Cth) (the Code). 5 The applicant acknowledged his guilt in relation to a further two charges contrary to s 29B, a further four charges contrary to s 135.1(5) and two charges contrary to s 8(K)(I)(a) of the Taxation Administration Act 1953 (Cth). He asked that these charges, which were placed on a schedule be taken into account on sentence by the Judge under s 16BA of the Act. 6 The maximum penalty for an offence of imposition upon the Commonwealth by an untrue representation contrary to s 29B of the Act is imprisonment for 2 years and/or fine of $13,200, whereas the maximum penalty for an offence of dishonestly cause a loss to the Commonwealth contrary to s 135.1(5) of the Code is 5 years imprisonment and/or a fine of $33,000. 7 On 24 August 2007, the applicant was sentenced as follows: (i) Count 1: 12 months imprisonment to commence on 1 June 2007; (ii) Count 2: 9 months imprisonment to commence on 1 October 2007; (ii) Count 3: 2 years imprisonment to commence on 1 December 2007; (iv) Count 4: 2 years imprisonment to commence on 1 March 2008; (v) Count 5: 2 years imprisonment to commence on 1 December 2007;

(vi) Count 6: 2 years imprisonment to commence on 1 June 2009. 8 Counts 1 and 2 are offences contrary to s 29B of the Act and counts 3-6 are offences contrary to s 135.1(5) of the Code. 9 As a result of accumulation and concurrence, the Judge imposed an aggregate effective head sentence of 4 years to commence on 1 June 2007 with a single non-parole period of two years and six months from that date and to expire on 30 November 2009. A single non-parole period was set in accordance with s 19AB(1) of the Act. 10 The applicant seeks leave to appeal against the sentences imposed on the following grounds: 1. The learned sentencing Judge erred in failing to provide transparency in the application of the discount for the applicant's pleas of guilty. 2. The sentences are, in all the circumstances, manifestly excessive. 11 As to Ground 1, Mr Dhanji for the applicant submits that the starting points of individual sentences or of the overall sentence gives rise to the question as to whether the discount for the plea of guilty of 10 per cent was in fact applied by the Judge. He contends that there can be no point having a precise discount if the starting point is imprecise. The Judge, he submits, erred in failing to provide transparency in the discounting of the applicant's sentence for his pleas of guilty. 12 The applicant pleaded guilty on 6 March 2007 which was to have been the second day of his trial. No complaint is made about the amount of the discount which was assessed by the Judge. 13 The duty of the Court in imposing a sentence for a federal offence is to impose a sentence that is of a severity appropriate in all the circumstances of the offence: s 16A(1) of the Act. The Court must take into account all matters identified in s 16A(2) in determining a sentence proportionate to the wrong-doing: Wong v The Queen (2001) 207 CLR 584 at [71]. A plea of guilty is a factor to be taken into account on sentence: s 16A(2)(g). 14 Section 16A falls within Div 2 of Pt 1B of the Act. There is no requirement in Pt 1B for the quantification of a discount for a plea of guilty, or for the provision of reasons for the discount allowed. 15 The Judge, however, quantified a discount which approach was in line with what was said at [28] in R v Bugeja [2001] NSWCCA 196 by Hodgson JA (with whom James and Adams JJ agreed on this point): "The range of discount suggested by Thomson and Houlton on this utilitarian basis is ten to twenty-five per cent. Although that range is not expressed as applying to Commonwealth offences in general terms, it seems to me that it is a reasonable range to adopt." 16 Her Honour, however, did not specify the notional starting points for the undiscounted sentences which has been a practice encouraged by some judgments of this Court: see for example R v Waqa (No 2) [2005] NSWCCA 33; R v Franklin [2005] NSWCCA 24, R v Lynn [2005] NSWCCA 222. When the discount for the plea is applied, a neat starting point for the sentences either individually or overall is not obtained. 17 Neither the omission by a sentencing Judge to identify an undiscounted starting point nor the inability to calculate a neat starting point for a sentence will necessarily lead to the conclusion that the Judge has simply paid lip service to the discount for a plea which the Judge has specified. Sentencing is not merely arithmetical. The encouragement of transparency does not confine sentencing to a precise mathematical exercise. An "instinctive synthesis" approach has been recognised in the High Court in AB v The Queen [1999] HCA 4; Johnson v The Queen [2004] HCA 15. 18 In the present case, the Judge specified the amount of the discount at 10 per cent and immediately prior to announcing the sentences said (ROS at 18): "Taking into account the discount for the plea I will impose the following sentences." 19 It is plain, to my mind, that the Judge applied to the sentences that were imposed the discount for the plea which she had quantified. The first ground of appeal is not established. 20 The second ground of appeal raises the issue of manifest excess. Whilst acknowledging that the applicant's conduct was serious, Mr Dhanji contends that the offences were not as sophisticated as other similar offences seen by the Courts and the amount of money was not at the top of the scale in relation to such offences. He points to the applicant's subjective factors which include the availability of $45,000 in reduction of the debt. 21 The applicant between 6 January 1998 to 4 May 2004 dishonestly obtained financial benefits from the Commonwealth in the sum of $106,095.57. The charges placed on the schedule involved a further $9,151.89 and the obtaining of false tax file numbers. Four false identities were used and false documents were produced to prove an identity when making an application for social security benefits. The applicant repeatedly made false statement in forms lodged with the Commonwealth Services Delivery Agency (the Agency) throughout the period of the offences. The offences were only discovered when a comparative analysis was conducted by the Agency. 22 Her Honour observed that the offences were committed over a significant period of time and was satisfied beyond reasonable doubt that despite the applicant's denials he only stopped offending when he was brought in for interview and must have feared that discovery of his crimes was imminent. Her Honour found that the crimes "were obviously well planned" and "relatively sophisticated". The Judge noted that the applicant was able to produce proof of identity for each false name and included in those identity documents were false driver licences, tax file numbers and translations of documents. The offences were characterised by the Judge as being of "significant objective seriousness". 23 In my view, her Honour's characterisation of the degree of objective seriousness of the offences was open to her. 24 At the time of sentence, the applicant was aged 36. He is a married man. He and his wife have three young children. The applicant did not have a significant prior criminal history although offences involving dishonesty are disclosed on his record. 25 Her Honour found that the applicant's reasons why he started offending and why he continued were not credible nor was his assertion that he did not fully understand that his conduct was wrong. His expressions of remorse, the Judge observed, "were heavily qualified by blaming others". 26 Although her Honour did not make a specific finding of the applicant's prospects of rehabilitation, she stated that she did "not necessarily share the relative optimism of Mr Taylor", a psychologist, about rehabilitation. She remarked that "there was little in the offender's evidence which would persuade the Court that he had accepted the criminality of his actions." 27 All of these findings were open to the Judge. 28 Due weight was given to the applicant's subjective circumstances and plea of guilty. Her Honour gave sympathetic consideration to the availability of the $45,000 accepting that it did "lessen the objective seriousness of the offence". 29 A number of sentences imposed in other cases have been referred to by Mr Dhanji in submissions. Many of those sentences, as so often is the case, can be distinguished for various reasons from the present circumstances. Whilst a consideration of sentences imposed by other Courts is helpful and promotes consistency in sentencing, it is for the Court to determine whether the sentences imposed in this case are manifestly excessive. 30 The Judge, in my opinion, correctly characterised the applicant's criminality. His dishonest activity escaped detection over six years and a large sum of Commonwealth money to which he was not entitled was obtained. 31 The need for general deterrence for social security fraud has been emphasised over the years by judgments of this Court: see for example Regina v Mears (1991) 53 A Crim R 141, Regina v Purdon, (Court of Criminal Appeal, 27 March 1997, unreported). 32 I am not persuaded that the sentence was in all the circumstances manifestly excessive. 33 I propose that leave to appeal be granted but the appeal be dismissed. **********

Charkawi v R

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