R v Bazouni

Findings of Fact

1. There is a dispute between the parties as to what findings of fact I should make beyond reasonable doubt. I must find either that the accused acted intentionally or acted recklessly.
2. Matters adverse to an offender must be proved beyond reasonable doubt, whilst those favourable to an offender need only be proved on the balance of probabilities.
3. The Crown submitted that I can find beyond reasonable doubt that the accused perpetrated the deceptions intentionally to cause the financial disadvantage. The offender says I should find that he was reckless.
4. The Crown submitted that because of the similarities in events and the circumstances in which they occurred, the only inference available is that they did not occur by chance or coincidentally, and that the court should draw that inference beyond reasonable doubt. The similarities are set out in full in the coincidence direction I gave to the jury. I draw this inference beyond reasonable doubt.
5. Mr McHugh on behalf of the offender submitted that the recklessness issue can only be answered "recklessly" - that is, having regard to the evidence adduced, the court cannot be satisfied beyond reasonable doubt that the offender had sufficient knowledge. He noted that the offender's evidence was that he understood the payments to him were payments for facilitating the fast and efficient processing of many loans for B2B. The three bank cheques provided to the offender in 2013 had no drawer's name on them. However, in my view the jury must have rejected the offender's evidence entirely. They no doubt followed my instructions to put his evidence to one side and consider only whether the evidence called by the Crown proved the offender's guilt beyond reasonable doubt.
6. I make the findings of fact as suggested out by the Crown for, at least, the following reasons:
7. First, the jury clearly rejected Mr Bazouni's evidence that the sums he received were unrelated kickbacks from B2B, and he himself resiled from his earlier explanation to Mr Damiano that the funds in his company's account related to a business concerning his wife.
8. Second, the Crown case was that the offender was involved in the planning from its inception. AB, who gave evidence at trial pursuant to an inducement, said that the offender was involved from the beginning and had knowledge of the frauds the subject of the counts. He said that he met with the offender and EF prior to the events and entered into an agreement that they would all obtain a financial benefit by submitting loan applications for amounts greater than the purchase price of the apartments. I found AB to be a credible witness notwithstanding the inducement.
9. Third, GH was in a different position than the other participants. He walked in from the street, rather than being sent in by the co-offenders. Mr Bazouni told him to go to Daniels Lawyers, who disbursed the funds in every case.
10. Fourth, as I have said, taking into account the many similarities between the events, I do not accept that they occurred coincidentally.
11. Fifth, the Crown presented an overwhelming circumstantial case.
12. I make the following findings of fact.
13. CH was selling serviced apartments at Nelson Bay in 2013 through a company. He contacted a real estate agent to sell the apartments. The company entered into a Sales Management Deed with AB. The agreed price for the apartments was $265,000. If AB was able to negotiate a higher sales price, anything over $265,000 would be his commission.
14. AB asked EF if he knew a banker who would settle the loans. AB met with the offender and EF - before any of the loan applications were lodged.
15. The offender entered into a joint criminal enterprise with AB, EF, JK and later GH to obtain a financial advantage dishonestly by deception. At the first meeting between the offender, AB and EF, and before any of the loan applications were submitted, there was a conversation about the amount the vendor wanted. It was the offender who came up with the figure of $575,000 as a purchase price, and they agreed that there would be financial benefit for each of them.
16. I find that the jury accepted AB's evidence that the offender was the source of the figure of $575,000, because he was the person party to the agreement who had knowledge about the bank's lending guidelines. I find that the offender was indispensable and essential to the agreement between them, as someone in the position of the offender was needed in order for the loans to be approved.
17. As lending manager at the bank, the offender had authority to approve loans up to $600,000 using the contract price as a valuation, provided the loan to valuation ratio was 80% or less. This authority did not apply to serviced apartments. Eighty percent of $575,000 is $460,000. The loan for each unit the subject of the counts was for $460,000, or $920,000 for two units. Each loan application was therefore $460,000 per unit with a loan to valuation ratio of 80%.
18. Between April and November 2013, the offender submitted and processed loan applications for units at 19 - 23 Church Street Nelson Bay. The contract for sale in each loan application overvalued the subject property at $575,000. The loan applications with inflated figures were approved by the offender without undertaking a valuation. Independent valuations conducted in 2014 showed a value of $330,000 per unit.
19. The bank placed a significant degree of trust in the lending manager. The source of information in a loan application is required to come from the lending manager's discussions with the customer. A lending manager should go through the entire application and record in the application that which a customer states. Income details should be verified by making a phone call to the employer to ensure the details of the applicant's employment. The bank's CLAS system trusts and relies on the details entered into it having been verified by the lending manager. Every loan application includes a declaration by the customer that the application is true and correct.
20. Each loan application (the subject of each count) involved a purported gift sufficient to cover the difference between the contract price ($575,000 per unit) and the loan applied for ($460,000 per unit) in order to achieve a loan valuation ratio of 80%. In each case, the purported gift was to be provided by a fictitious person. In each count, the loan application involved the use of fraudulent documents and false information. Information was included by the offender in loan applications that was not provided by the named applicant. The offender did not verify the information and documents provided by participants in the agreements to purchase the units. These matters are the dishonesty and deception involved in the offending. The entire loan proceeds in each count are a financial advantage which was obtained as a result of that dishonesty and deception.

Count 1 - CD

1. CD was introduced to the offender through AB and EF. At their first meeting, the offender informed CD that he had done the application online. CD did not know how much the units were going to cost. The offender said he would do an online valuation. CD did not tell the offender any of the following details:

• that he had a full time job;
• that he had $285,000 in available funds;
• that he had $106,000 at the Commonwealth Bank;
• that his house contents were worth $100,000;
• that he had $100,000 invested; or
• that he was receiving a gift of $185,000 from his brother.

1. Those matters were untrue. CD did not sign the contracts, the loan applications or the declaration stating that the information was true and correct. False employment details provided by AB were used as part of the loan application. A false statutory declaration concerning a gift and false rental valuations were also relied upon.
2. After settlement of the loan, the excess proceeds of the CD loan application were distributed through Daniels Lawyers Trust Account. $60,443.82 was paid to AB, $49,500 was paid to EF and $226,500 was paid to CD. No funds were paid to the offender.

Count 2 - LM

1. LM is the same person identified as JK. As part of the loan application submitted in his name, false employment records, a false statutory declaration concerning a gift and false rental valuations were relied upon.
2. The proceeds of the loan application were distributed through Daniels Lawyers Trust Account and deposited into bank accounts controlled by the participants in the agreement, including the offender. The offender instructed AB that his payment of $75,000 was to be made by bank cheque. The cheque was deposited into the offender's business account (Me Co Pty Ltd). JK received $147,000, AB received $54,991.87 and EF received $26,823.

Count 4 - NP - First Loan

1. NP is not a person who exists. RS pretended to be NP. He was recruited by JK. RS met with the offender, AB and JK at the bank. He did not provide any of the information contained in the loan applications. He was told to sign the application. Two separate applications were submitted in the name NP. The first is the subject of count 4. The second is the subject of count 9.
2. Both applications contained false information about his name, address, employment, bank accounts, car and superannuation. As part of the loan application, a false driver's licence and Medicare card were provided. False employment records, a false statutory declaration concerning a gift and false rental valuations were relied upon.
3. After the first loan settled, the proceeds of the loan application were distributed through Daniels Lawyers Trust Account and deposited into bank accounts controlled by the participants in the agreement - including the offender. As instructed by the offender, AB provided him with a bank cheque for $67,505. The cheque was deposited into the offender's business account. JK received $147,000, AB's wife received $75,000, EF received $19,328 and AB received $24,352.14.

Count 6 - GH - First Loan

1. GH approached the bank to enquire about investment loans. He was directed to the offender. The offender told him there were properties the bank owned that he could buy. He told GH that it was a good deal and that he could do it for friends and family. The offender told GH that he would be able to get an equity drawdown, as the properties were worth more than the valuations. The offender (later) told GH that the amount he would receive was $160,000.
2. GH did not know the purchase price of the property or the amount of the loan application. He did not know anyone was going to receive a commission from the loan funds. As part of the loan application, a false statutory declaration concerning a gift and false rental valuations were relied upon. False information about assets and investments was included.
3. When the first loan settled, the offender told GH to go to the solicitor's office at Marrickville to collect a cheque. That cheque and the other proceeds of the loan application were distributed through Daniels Lawyers Trust Account (in Marrickville) and deposited into bank accounts controlled by the participants in the agreement - including the offender. As instructed, AB provided the offender a bank cheque for $83,165. The cheque was deposited into the offender's business account. AB received $57,481.28 and EF received $32,988.

Count 8 - GH - Second Loan

1. A second loan application in the name of GH was created on 4 July 2013. The same false statutory declaration concerning a gift and false rental valuations were relied upon as part of this loan application. False information about assets and investments was also included.
2. When the loan settled, the offender again told GH that there was a cheque for him to pick up. That cheque and the other proceeds of the loan application were distributed through Daniels Lawyers Trust Account and deposited into bank accounts controlled by the participants in the agreement - including the offender. The offender gave instructions that his payment should be paid to EF in cash as the bank's investigation had already commenced, and he had concerns that the funds could be traced. AB provided EF with $41,830 to be paid to the offender. AB received $99,057 and EF received $33,587.

Count 9 -NP - Second Loan

1. The second loan application in the name of NP contained the same false information as the first application. The loan did not proceed. In submitting that loan application, the offender was attempting dishonestly to obtain by deception a financial advantage.
2. I find that all the circumstances support a finding beyond reasonable doubt that the offender knew that the agreement was to dishonestly obtain a financial benefit by deception. The false gifts were needed to achieve the loan to valuation ratio of 80%. The false income documents and the false rental valuations were necessary to establish serviceability of the loans. The tracking documents indicate that the offender entered the information into the bank's system and approved the loans. The Crown's overwhelming circumstantial case supports this conclusion.

Exhibits

1. I have before me three exhibits. Exhibit 1 is a bundle of documents prepared by the Crown which includes: 1. A copy of the trial indictment; 2. The offender's criminal history; 3. The offender's custodial history; 4. A Statement of Vince Damiano dated 29 November 2019 (and who gave brief evidence before me); 5. The remarks on sentence of Judge Norrish QC of October 2018; with respect to each co-offender; 6. A copy of the Indictment with respect to the co-offenders; 7. A Statement of Agreed Facts for AB, signed by the Crown and the offender on 16 October 2017; 8. A Statement of Agreed Facts for JK, signed by the Crown and the offender on 25 October 2017; and 9. A Statement of Agreed Facts for EF, signed by the Crown and the offender on 23 October 2017.
2. Exhibit 2 is a Sentencing Assessment Report (SAR) dated 2 December 2019 under the hand of Sam Willmott.
3. Exhibit 3 is a bundle of documents tendered by the offender, which includes: 1. A report of Professor Magnussen radiologist dated 26 September 2018 noting a finding of a pineal cyst; 2. A Concord Medical Centre certificate, dated 9 November 2019; 3. A Concord Medical Centre certificate, dated 7 November 2019; 4. A script for Pariet dated 7 November 2019; 5. A report from Kris North, forensic psychologist, dated 9 December 2019; 6. A report of Stephen Woods, forensic psychologist, dated 20 December 2018; 7. A handwritten letter from the offender; 8. A letter from Aida Bazouni (the offender's wife) dated 7 December 2019; 9. A letter from Jane Eilas (the offender's sister) dated 8 December 2019; 10. A letter from Seyaid Bazouni (the offender's nephew) dated 8 December 2019; 11. A statutory declaration of Antoinette Bazouni (the offender's mother) dated 4 December 2019; 12. A letter from Steven Anjoul dated 6 December 2019; 13. A statutory declaration of Sarah Elliot dated 4 December 2019; and 14. A letter from Martin Horner dated 7 December 2019.
4. I will now summarise some of the documents which have been placed before me. I propose to highlight some important elements in these documents.

Exhibit 1

1. Prior to these offences, the offender's criminal history consisted of a low range PCA in 2004, and a charge of possess prohibited drug for which he was given a section 10 bond in 2013.
2. The statement of Mr Vince Damiano, who gave evidence at trial and on sentence, goes to the loss suffered by the Westpac Group (which includes the bank). He was cross-examined briefly by Mr McHugh. There was no evidence at trial about any losses suffered by the bank as a result of two credit cards that were issued at the time of the offending and I disregard the sums said to be relating to those cards. I calculate the loss to the bank as a result of the offending at $1,566,287.61.

Exhibit 2

1. The SAR of 2 December 2019 notes that the offender has been denied bail and should he be released back into the community, he proposes to return to his residence to live with his wife and three children. He is currently unemployed.
2. The report writer believes that the offences are consistent with the offender's past anti-social behaviour. Mr Bazouni took responsibility by stating that he "accepted the jury's verdict at trial." He acknowledged that his offending had been enabled by financial strain and his associations with pro-criminal peers. He also acknowledged that at the time of the offending, he was approving loan applications that "probably" did not meet the expected eligibility criteria. He indicated that he did so in order to obtain a financial advantage, that is to alleviate his own financial stressors from personal mortgages. He stated that he still had significant financial debt.
3. Mr Willmott was of the view that Mr Bazouni's acknowledgement of his relationships with the co-accused indicated an acceptance or validation of values supportive of crime. However, in his opinion the offender displayed limited insight into the impact of his offending, as he could only identify how the offences have impacted upon himself and his family. When asked how his actions affected the victims of the offences, he stated "I suppose they were affected financially and emotionally." He asserted that no-one was "out of pocket" as all the money had been reimbursed.
4. On the Level of Service Inventory- Revised (LSI-R), the offender was assessed at a medium/low risk of reoffending. He was assessed as suitable to undertake community service work and it was noted that Community Corrections could provide the equivalent of up to 20 hours of work per month.

Exhibit 3

1. Interpreting an MRI of the brain preformed on 26 September 2019, Professor John Magnussen confirmed that the offender had a presumed pineal cyst, with significantly increased cerebrospinal fluid around the optic nerves which appeared stable.
2. Dr Peter Nakhle, general practitioner, assessed Mr Bazouni on 9 November 2019 and confirmed that he is suffering from sleep apnoea. He also confirmed that Mr Bazouni has "reflux sxs", that he is on Pariet, and that he has a pineal cyst on the brain which will require regular scanning.
3. Ms Kris North, psychologist, assessed the offender via AVL on 5 December 2019 whilst he was in custody. Mr Bazouni reported a difficult upbringing due to paternal mental illness and a related history of family violence. He reported physical health issues relating to a pineal cyst, sleep apnoea, and mental health symptoms relating to depression and anxiety. There was some concern over Mr Bazouni's access to appropriate treatment within the custodial setting. Ms North noted that a previous assessment (see below) had indicated the presence of symptoms possibly related to a psychotic disorder which should be monitored. She noted that an LSR-I assessment showed him to be low risk.
4. The offender presented as motivated towards engaging in treatment and supervision. He maintained that he had been unaware of the fraudulent nature of the documents at the time of his offending behaviour, but reported that he had accepted the jury's verdict and expressed regret for his behaviour. I note that this is somewhat contrary to what is contained in the SAR, which was prepared a few days earlier.
5. The offender is the eldest of two children born to his parents' union. They divorced when he was approximately eight years of age. He described a dysfunctional childhood prior to his parent's separation, reporting that his father suffered from (paranoid) schizophrenia and had been violent towards family members. He described witnessing domestic violence and being subject to harsh physical punishment up until the age of eight years. He further reported that the conflict continued after his parents' separation and recounted an example of his father attempting to kidnap him and his sister from school, which resulted in police intervention.
6. Mr Bazouni attended Marist Brothers College in Auburn and described himself as an above average student. He was unable to attend university due to difficulty in affording tuition. In his mid-twenties he began studying part-time to become a mortgage broker. He obtained employment at the bank as a loans manager in 2010. He ceased work at the bank after being questioned in relation to the offences which resulted in his suspension from the bank.
7. The offender has been married to his wife for approximately fifteen years and has three children to this marriage. He also cares for his mother who suffers from high blood pressure, diabetes and high cholesterol. Mr Bazouni said that he was presently paying for two rental properties and expressed significant concern about his financial status.
8. With respect to his mental health functioning, the offender reported difficulties sleeping. He also described symptoms consistent with depression and reported having been prescribed Zoloft, which he had been unable to whilst in custody. The offender stated that he had experienced an increase in paranoid ideation during his court case, noting he had a tendency to "overthink" and that he had started endorsing "conspiracy theories".
9. Ms North noted a previous assessment of the offender in 2018 which had identified paranoid ideation and possible cognitive impairment, possibly consistent with the onset of a mental disorder, and it was noted that Mr Bazouni had a family history of schizophrenia. Other concerns raised in that assessment related to the potential impact of a custodial sentence on Mr Bazouni's family members, who would likely suffer financial hardship.
10. Mr Bazouni was assessed as meeting the criteria for Adjustment Disorder, with mixed anxiety and depressed mood. Ms North noted that suitable treatment was available in both the custodial and community settings.
11. Professor Stephen Woods, psychologist, interviewed the offender and his wife (in the absence of one another) on 20 October 2018. Professor Woods stated that Mr Bazouni appeared depressed, complained of a headache and demonstrated difficulties with memory. The offender disclosed that he had been suffering from ideations of a paranoid type. Specifically he reported that he believes:- 1. Police and the DPP are conspiring to fabricate (false) evidence "to get me [him]". 2. In a previous matter that is now the subject of appeal, the Presiding Magistrate along with Police and the DPP conspired to have him wrongly convicted. 3. His former solicitor was in some way involved in the conspiracy. He had doubts regarding his (then) solicitor.
12. Professor Woods was of the view that Mr Bazouni's profile suggested that he "may" be in the early stages of a developing mental illness. It was noted that Mrs Bazouni reported that her husband's behaviour had become increasingly erratic and paranoid over the past several years.
13. Professor Woods was of the opinion that the offender presented with a disturbing clinical profile requiring further investigation. He believed that possible explanations for Mr Bazouni's reported cognitive, mental health, and somatic symptoms include a developing psychiatric mental illness, symptoms of a pineal cyst, the stress of the legal proceedings and/or a combination of these matters.
14. The offender provided a letter to the court explaining his experience during the trial. He stated that "I have had this black cloud lingering over mine and my families head since 2013" and recounted the stress of his legal team wanting to "abandon" him. He stated that when the jury found him guilty, "I was disappointed, I accept the jury verdict and has been a huge eye opening experience" [sic]. He states that he has not worked or been in the mortgage industry or worked in a bank since he was charged, that he will never be able to work in that industry again and that he feels overwhelming guilt for what his children will have to endure. He said that being in jail has "scared me forever to never do anything wrong so I'm never back in jail again". He states that he has brought up his children to be honest, respectable, helpful, loving, and caring individuals and to always do the right thing. He acknowledges that he has let them down as a father and a role model.
15. Ms Aida Bazouni, the offender's wife, met the offender in June 2002 and they were married in 2004. They have three children together. She believes the offender to be reliable, honest and hardworking. She states that "this is not the John I know", and that they are people of faith who attend Church every Sunday. She says that both she and her husband had a similar upbringing, and both were exposed to domestic violence. She notes that the offender worked hard to support his family and that he is a loving and dedicated family man. He is very close with his children. Mrs Bazouni stated that they always argued about the offender being too trusting of people, and that he would never question them as he believed everyone would be as honest as he was. She states that the family is struggling emotionally, physically and financially.
16. Mrs Jane Elias, the offender's sister, says that the whole family's wellbeing has been impacted by these events. Mr Bazouni's mother is sick and suffers from Type 2 diabetes mellitus, hypertension, psoriatic arthritis, migraine, anaemia, fatty liver, tubular adenoma of the colon, erosive gastritis, and reflux osteoporosis. Mr Bazouni supports his mother emotionally, physically and financially.
17. Mr Seyaid Bazouni, and Mr Steven Anjoul, who have known the offender for more than 35 years, report that he was exposed to violence from his father at a young age, and that in their opinion the offending is out of character.
18. Ms Antoinette Bazouni, the offender's mother, and Ms Sarah Rebecca Elliot, confirm that Mr Bazouni is a caring father and very much loved by his family. Mr Martin Homer, a financial advisor, observes that the offender always seemed hard working in his career and family life. He believes the offences to be out of character.

Objective seriousness

1. I must assess the objective seriousness of each of the offences. I am mindful that the assessment of objective gravity must be made by reference to all the facts and circumstances of the case, and that the maximum penalty of 10 years imprisonment for each offence is an important yardstick by which I am to measure the gravity of the offending. There is no non-parole period for these offences.
2. The Crown says that the following features are relevant to my assessment of the objective gravity of the offences 1. The amount of money involved and whether the loss is irretrievable; 2. The length of time over which the offences were committed; 3. The motive for the crime; 4. The degree of planning and sophistication; and 5. An accompanying breach of trust.
3. It is further submitted by the Crown that the courts have also regarded the impact on public confidence and the impact on the victim as relevant matters.

Amount of Money or Loss

1. The loss suffered by the bank is in the amount of approximately $1.5 million. Mr McHugh says that the bank's eagerness to write loans and its systems makes it partly responsible, as the offender received no training from the bank on fraud detection. That submission, it is said, does not discount the offending, but rather it places it in context and distinguishes it from other offending caught by s192E, that is this offending is markedly different to that where homeowners lose their homes as a result of fraud or involves multiple victims or a series of criminal acts.
2. The Crown submits that the amount of money involved is a significant consideration in assessing the objective seriousness of the offence. The Crown says that although the amount of money defrauded is not determinative of the seriousness of the offence it "is relevant to a degree and particularly where the offences are premeditated, committed on a number of separate occasions and involve a degree of planning, and are for substantial amounts of money": R v Finnie [2002] NSWCCA 533 at 59.
3. I find that the total loss to the bank, as a result of these offences, is approximately $1.5 million. That is not an insignificant sum.

Length of Time over which the offences were committed

1. The Crown submitted that the length of time over which the offences are committed is a relevant factor in determining the level of criminality involved.
2. In addition, where an offence is committed over a significant period of time this may ameliorate the weight that may be afforded to good character. Here, the scheme operated over a period of about seven months, a not insignificant amount of time. However, it was not conducted over the course of years.

Motive

1. The motive for committing the offence will be a relevant factor when assessing the criminality. The Crown submits that since the fraud is based on greed, rather than need, the sentence imposed ought to be longer.
2. It is not disputed that the offending was motivated by greed. The offender himself received $75,000 in the transaction the subject of count 2, $67,505 with respect to count 4, $83,165 with respect to count 6, and he (at least) expected to receive $41,830 in cash with respect to count 8.

Degree of Planning and Sophistication

1. The Crown submitted that offences committed on impulse have been distinguished from offences where there has been planning with a degree of sophistication. Here, the Crown says that the offending was part of a planned and organised activity over seven months.
2. The offender submitted that his role in the offending neither required much planning nor was it sophisticated. I reject the submission that it was not planned, but I accept that it was not particularly sophisticated.

Breach of Trust

1. The fact that the offence involved a breach of trust is a matter to be taken into account. The breach of trust must be in direct contravention of what the offender was engaged to do.
2. In cases of serious white collar crime involving a breach of trust by a solicitor or another professional person standing in a similar position of trust, a full-time custodial sentence will be imposed, except in cases where there is some unusual feature.

Bank employees

1. For reasons that are readily apparent, the courts have regarded offences committed by bank employees as a grave breach of trust: R v Cornell [2015] NSWCCA 258 at [135]. Under the previous fraud statutory scheme it was held that, where there is a substantial fraud by a bank employee, generally a custodial sentence is required to deter others unless there are special circumstances. Here the offender clearly breached the trust reposed in him by the bank as lending manager.

Role of the offender

1. It has been suggested by the offender that AB was the mastermind of the operation, and that the offender was some sort of pawn in the exercise of it. In my opinion, the offender was essential to the operation, in the sense that the scheme could not have taken place unless a person in the position of the offender took part in it, with an understanding of how to exploit the systems of the bank. His role was crucial and indispensable.
2. I make the following findings with respect to objective seriousness:- 1. With respect to count 1, I find that it rests just below the mid-range of objective seriousness. 2. With respect to count 2, I find that it rests on the mid-range of objective seriousness. 3. With respect to count 4, I find that it rests on the mid-range of objective seriousness. 4. With respect to count 6, I find that it rests on the mid-range of objective seriousness. 5. With respect to count 8, I find that it rests on the mid-range of objective seriousness. 6. With respect to count 9, I find that it rests just below the mid-range of objective seriousness.
3. I have found that those counts involving payments (and a prospective payment) to the offender have slightly higher findings of objective seriousness.

Sentencing Approach

1. The purposes of sentencing are expressed in s3A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the Sentencing Act). They include: ensuring an offender is punished for his or her conduct, deterring crime, protecting the community, promoting an offender's rehabilitation, making an offender accountable for his or her actions, denouncing an offender's conduct and recognising the harm done to victims of an offence in the community.
2. As the High Court said of s3A in Muldrock v The Queen (2011) 244 CLR 120 at [20]: The purposes there stated (in s3A) are the familiar, overlapping and, at times, conflicting, purposes of criminal punishment under the common law (Veen v The Queen (No 2) at [476-477]). There is no attempt to rank them in order of priority and nothing in the Sentencing Act to indicate that the court is to depart from the principles explained in Veen v The Queen(No 2) [at 476] in applying them.
3. The instinctive process of sentencing requires consideration of the relevant facts and circumstances as they are known to the court, including the facts surrounding the commission of each offence, matters affecting relative seriousness, the offender's subjective circumstances and other aspects which bear upon the question of sentence, including the guideposts of the maximum penalty, the standard non parole period (if any) and the factors referred to in s21A of the Sentencing Act. The sentencing court is required to identify the factors relevant to the sentencing discretion and then to make a value judgment as to the appropriate sentence in all the circumstances (Markarian v The Queen [2005] HCA 25). I have already set out the offenders' subjective case.
4. There are additional factors which I must take into account.

Remorse or contrition

1. It is difficult to assess the extent of the offender's remorse. I note that Mr McHugh submitted that remorse is a mitigating factor to be taken into account where it is present, and conversely, a lack of remorse is not an aggravating feature. Here, I am not satisfied on the balance of probabilities that the offender has expressed real remorse or insight into his offending. The content of the SAR, the report of Ms North and the offender's letter lead me to that conclusion.

Rehabilitation, Likelihood of re-offending and Personal Deterrence

1. The Crown submitted that the offender's evidence- that over the course of the two or three years before the acts that are the subject of the counts on the indictment, he had received sporadic payments from B2B brokers for prioritising their loan applications discloses- demonstrates that he was involved in other activity that involved dishonestly obtaining a financial advantage or receiving a secret commission in the course of his employment over an extended period before this offending. As the jury clearly rejected this evidence as his explanation for the offending, I do not make that finding beyond reasonable doubt.
2. It is true that subsequent to these events, the offender was convicted of another offence involving similar conduct as a mortgage broker. The Crown submits that the court would be satisfied beyond reasonable doubt that there is a significant risk of him re-offending. Alternatively, it is submitted that the court could not be satisfied on the balance of probabilities that the offender has good prospects of rehabilitation.
3. The offender submitted that he will never be able to work in the finance industry. Further, it was submitted that he is supported by his family, and that he ultimately has good prospects of rehabilitation.
4. Taking all matters into account, I do not find that the offender's prospects of rehabilitation are good, and that he is unlikely to re-offend. On the other hand, it is hoped that ultimately the offender is rehabilitated and makes a positive contribution to society. He has some prospects, in my opinion, but the subsequent charges makes personal deterrence of some relevance.

Prior Criminal History

1. The defence submitted that at the time of the commission of these offences, the offender had a criminal history which was very limited and unrelated. I agree. The offender's prior criminal history neither aggravates nor mitigates sentence.

General Deterrence and Denunciation

1. General deterrence and denunciation clearly have a role to play in this sentencing exercise as the offences are serious. There is nothing in the offender's background which would cause me to reduce their role.

The Offender's Mental Health

1. The defence submitted that whilst the mental health issues are not causatively linked to this offending, the offender's mental health problems are relevant to the sentencing exercise. In this case, the offender was recently diagnosed with a recognised psychiatric illness, being an Adjustment Disorder. Some years after the offence, in 2018, Professor Woods was on the view that the offender might be developing a mental illness. I find on the balance of probabilities that the offender has some mental health issues, which I take into account.

Extra Curial Punishment

1. In written submissions, the offender said that as he was highly unlikely to ever again secure employment in the finance industry and that this was extra curial punishment. Mr McHugh did not pursue this in oral submissions, and I make no finding.

Hardship in Custody and Hardship to Dependants

1. It was submitted by the offender that I should take into account the effects of hardship in custody, both to the offender and his family. In this case, Justice Health will be able to manage the offender's physical and mental health: see the report of Ms North.
2. As to the offender's family, there is nothing unusual about the present case so far as they are concerned. They will no doubt suffer hardship. I will later in these reasons make a finding of special circumstances.

Assistance with the Administration of Justice

1. Mr McHugh submitted that the offender assisted in shortening the trial by not putting the Crown to strict proof on the key fact that false documents were produced to the bank. In the context of a trial of some weeks, I do not consider this submission to have any merit.

Delay

1. Mr McHugh observed that there has been a period of six years between the time of the commission of the offences and the jury's verdict. It was submitted that there would have been stress and anxiety faced by the offender and his family having this matter hanging over their heads. It is true that there was considerable delay between the offending and the trial, some of which cannot be said to be the offender's fault. However, it is not the case that during this period, the offender has demonstrated progress in his rehabilitation. The evidence is to the contrary. I give delay some little weight.

Totality

1. A court sentencing an offender for more than one offence must determine the appropriate sentence for each individual offence and then consider questions of accumulation or concurrence bearing in mind the principle of totality. The effect of the totality principle is to require me, having assessed all individual sentences, to stand back and consider whether the overall sentence to be imposed is just and appropriate and reflects the overall criminality of the offending. [1]
2. This in turn requires consideration to be given to whether the sentences to be imposed for each offence should be concurrent or cumulative.
3. Mr McHugh said that having regard to the principle of totality, the court would allow a wide margin of concurrency in the overall sentence, as these charges all took place at or around the same time and arose out of the same joint criminal enterprise. Both parties said that an aggregate sentence under s53A of the Sentencing Act would be appropriate.
4. The Crown submitted that the offender has been convicted of multiple offences, and the court will have to determine an appropriate sentence for each offence and then consider matters of accumulation or concurrency. The ultimate sentence must be appropriate to the totality of the offender's offending and his personal circumstances.

Parity

1. The doctrine of parity on sentencing is a norm of equal justice and an essential element of the rule of law: Green v R; Quinn v R (2011) 244 CLR 462 at 28. The principle of equal justice requires, as far as the law permits, that like be treated alike and that differential treatment be meted out to reflect differences between those that are relevantly different. I note the difficulties in this case comparing sentences imposed on participants in the same criminal enterprise who have been charged with, or pleaded to different offences with different maximum penalties, and some of them (in the case of the co-offenders) on Form 1 documents: Green v R; Quinn v R (2011) 244 CLR 462.
2. The Crown submitted that as the court has been provided with details of the sentences imposed on the co-offenders AB, EF and NP, the court should have regard to the "starting points" before any discounts expressed for those sentences in determining the appropriate sentence to impose on the offender. However, it is said that there are significant matters of disparity between the offenders which warrant imposing a sentence on this offender that differs from the sentences imposed on the co-offenders.
3. Foremost in this regard is the position occupied by the offender in the scheme. The Crown submits that this offender was indispensable to the scheme. Without him, the scheme could not have succeeded. As I have said, I agree with that submission.
4. In addition, the offender has been convicted of a greater number of more serious offences in relation to these transactions than his co-offenders. Although they carry the same maximum penalty, in the circumstances of this offending, the offence of dishonestly obtaining a financial benefit by deception is objectively more serious than an offence of recklessly dealing with the proceeds of crime, particularly if the court accepts, as it does, that the offender's state of mind was one of actual knowledge.
5. The following has been extracted from the judgment of Judge Norris QC and is agreed. AB pleaded guilty to four counts on his indictment (3 x recklessly dealing with proceeds of crime, and 1 x 192E) and had two matters on a Form 1 (2 x s192E). His head sentence after a 25% discount was 2 years 9 months with a non-parole period of 17 months.
6. JK and EF both received a head sentence before discounts of (approximately) 4 years 3 months and a non-parole period of 2 years.
7. JK pleaded guilty to 3 counts contrary to s192E on his indictment and asked that a Form 1 be taken into account (1 x s192E and 3 x did deal with fraudulent ID with intent to commit indictable offence). After a discount, he was sentenced to 3 years 10 months with a non-parole period of two years.
8. EF pleaded guilty to two counts (1 x s192E and 1 x recklessly dealing with proceeds of crime), and had a Form 1 (2 x s192E and 2 x recklessly dealing proceeds of crime) taken into account. After a discount, he was sentenced to 3 years 10 months with a non-parole period of 2 years.
9. The offender submits his moral culpability is much reduced from that of his co-accused - who pleaded guilty facing strong circumstantial cases, because:- 1. The offender was not the organiser or creator of the scheme to defraud the bank; 2. He did not produce the false documents; 3. He did not approach the applicants to participate in the scheme (for example, NP, GH and LM); 4. He had very little contact with the co-offenders. He was at no time specifically aware of each of the participants or their part in the agreement; and 5. He was not aware of the extensive use of false names and documents by the co accused or their criminal histories. The offender for example, only knew AB by an anglicised version of his name.
10. Further, it was submitted that the offender's actual conduct consisted of entering the details of the documents as submitted to him into the bank's system and ensuring that the documents submitted were entered into the system as required and sent up to the mortgage centre.
11. Mr McHugh that the role played by the offender would place him well below AB, who was the mastermind of this enterprise. It is also submitted that his role was below CD and EF who knew the documents were false and were the real active participants in the agreement.
12. Taking into account the relativities and differences between the offending of Mr Bazouni and his co-offenders, and in particular the significance of the fact that the offences could not have been committed without the participation of a bank lending manager in the position of the offender, I am satisfied that the sentence I will impose is justified in light of the disparities in their respective offending, bearing in mind the qualitative and discretionary judgment of a sentencing judge. I also bear in mind that it is the sentence imposed on the co-offender which is said to give rise to a sense of injustice, not the sentence imposed upon the offender.

Special Circumstances

1. I make a finding of special circumstances in deviating from the statutory ratio, taking into account that this will be the offender's first time in custody, that he will require extensive supervision and rehabilitation when he is re-integrated into the community and because of the physical and mental health concerns he faces whilst in custody which will no doubt linger after his release.

Threshold

1. Having considered all the possible alternatives, I am satisfied that the section 5 threshold has been crossed. Due to the seriousness of the offences, I find that no penalty other than imprisonment is appropriate. No submissions were put otherwise.

Time spent in Custody

1. The offender has been in custody since 1 November 2019. I will backdate the sentence to that date.

Sentence

1. In determining an appropriate sentence I have kept in mind the legislative guidepost of the maximum penalty of 10 years for each offence.
2. I intend to proceed to sentence the offender by way of an aggregate sentence pursuant to s53A of the Sentencing Act (NSW). I have been mindful to ensure that the aggregation of the sentences reflects an appropriate measure of the total criminality involved.
3. As I am satisfied that no alternative other than a sentence of imprisonment is appropriate, the next step is to determine the aggregate sentence in the quantitative sense. Having considered all of the matters I have referred to in this sentence judgment, I impose an aggregate sentence of imprisonment for 5 years.
4. As required by s53A(2)(b) of the Sentencing Act (NSW), the indicative sentences I would have imposed are as follows: 1. For Count 1, namely dishonestly obtain financial advantage by deception contrary to s 192E 1(b) of the Crimes Act 1900, I would have imposed a sentence of imprisonment of 1 year. 2. For Count 3, namely dishonestly obtain financial advantage by deception contrary to s 192E 1(b) of the Crimes Act 1900, I would have imposed a sentence of imprisonment of 1 year 6 months. 3. For Count 4, namely dishonestly obtain financial advantage by deception contrary to s 192E 1(b) of the Crimes Act 1900, I would have imposed a sentence of imprisonment of 1 year 6 months. 4. For Count 6, namely dishonestly obtain financial advantage by deception contrary to s 192E 1(b) of the Crimes Act 1900, I would have imposed a sentence of imprisonment of 1 year 6 months. 5. For count 8, namely dishonestly obtain financial advantage by deception contrary to s 192E 1(b) of the Crimes Act 1900, I would have imposed a sentence of imprisonment of 1 year 3 months. 6. For count 9, namely attempt to dishonestly obtain financial advantage by deception contrary to s 192E 1(b) of the Crimes Act 1900, I would have imposed a sentence of imprisonment of 9 months.
5. I impose a non-parole period of 3 years.
6. The sentence is backdated to 1 November 2019, the date the offender was taken into custody.

Orders

1. Mr Bazouni, please stand.
2. You are sentenced to an aggregate term of imprisonment for 5 years.
3. The sentence commences on 1 November 2019.
4. You will be eligible for parole in 3 years from the commencement of your sentence. I have deviated from the statutory ratio of 75% to 60% because of special circumstances. The non-parole period expires on 31 October 2022.
5. Your head sentence expires on 31 October 2024.

Endnote

1. Mill v The Queen (1988) 166 CLR 59 at [63]. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 24 March 2020