R v Fahmy (No. 3)

Category: Sentence

Parties: Office of the Director of Public Prosecutions (Cth) (the Crown)
Ebtesam Ibrahim Mahmoud Fahmy (the offender)

Representation: Counsel:
Mr C O’Donnell SC (the Crown)
Mr D Smith (the Crown)
Mr D Phillips (the offender)
Solicitors:
Mr J Kisch (the Crown)
Ms C Niagos (the Crown)
Mr P Williams (the offender)
Mr M Stidwill (the offender)

File Number(s): 2023/00305470

Publication restriction: Nil

remarks on sentence

1. On 3 March 2026 the offender entered pleas of not guilty upon arraignment to six counts on the Indictment. On 5 May 2026 the jury returned verdicts of guilty in respect of each of those six counts. The offender is therefore to be sentenced in respect of the following six offences:-

2. Count 1 – Between about 22 December 2020 and 13 December 2021 in Sydney and elsewhere in the State of New South Wales, did cause claims to be submitted for services performed by SOS Restorations Pty Ltd that were not provided, with the intention of dishonestly obtaining a gain from the National Disability Insurance Agency, which is a Commonwealth entity.

3. Count 2 – Between about 1 February 2022 and 10 February 2022 in Sydney and elsewhere in the State of New South Wales, did cause claims to be submitted for services performed by SOS Restorations Pty Ltd that were not provided, with the intention of dishonestly obtaining a gain from the National Disability Insurance Agency, which is a Commonwealth entity.

4. Count 3 – Between about 9 May 2022 and 12 July 2022 in Sydney and elsewhere in the State of New South Wales, did cause claims to be submitted for services performed by SOS Restorations Pty Ltd that were not provided, with the intention of dishonestly obtaining a gain from the National Disability Insurance Agency, which is a Commonwealth entity.

5. Count 4 – Between about 1 June 2022 and 31 December 2022 in Sydney and elsewhere in the State of New South Wales, did cause claims to be submitted for services performed by Maryanne Day trading as 'Day in - Day Out' that were not provided, with the intention of dishonestly obtaining a gain from the National Disability Insurance Agency, which is a Commonwealth entity.

6. Count 5 – Between about 1 January 2023 and 2 July 2023 in Sydney and elsewhere in the State of New South Wales, did cause claims to be submitted for services performed by Maryanne Day trading as 'Day in - Day Out' that were not provided, with the intention of dishonestly obtaining a gain from the National Disability Insurance Agency, which is a Commonwealth entity.

Counts 1 to 5 were offences pursuant to s135.1(1) of the Criminal Code Act 1995 (Cth) (“the Code”). The maximum penalty prescribed for each offence is 10 years imprisonment and/or 600 penalty units.

6. Count 6 – Between about 17 February 2021 and 2 July 2023 in Sydney and elsewhere in the State of New South Wales, did deal with money, which was, and the person believed to be, the proceeds of indictable crime, and at the time of dealing, the value of the money was $1,000,000 or more.

This was an offence pursuant to s400.3(1) of the Code. The maximum penalty prescribed for this offence is 25 years imprisonment and/or 1,500 penalty units.

2. The offender was arrested on 26 September 2023 and spent 10 days in custody until she was released on bail. She returned to custody following the jury verdicts on 5 May 2026, and it is common ground that if she is to be sentenced to a custodial sentence, that sentence would commence on 24 April 2026.

Findings of facts on which the offender is to be sentenced

3. In finding facts to be derived from the jury verdicts, I am mindful that any findings of facts made against the offender must be arrived at beyond reasonable doubt and that any reasonable doubt must be resolved in favour of the offender. By contrast, the offender bears the onus of proving on the balance of probabilities facts which are to be submitted in her favour – see The Queen v Olbrich (1999) 199 CLR 270; Savvas v The Queen (1995) 183 CLR 1. In Filippou v The Queen (2015) 256 CLR 47; [2015] HCA 29, the plurality said at [64]:-

“Where, therefore, the prosecution fails to prove a fact or circumstance which is adverse to the offender, but the judge is not satisfied on the balance of probabilities of an alternative version more favourable to the offender, the judge is not bound to sentence the offender on a basis which accepts the accuracy of the more favourable version. If the prosecution fails to prove beyond reasonable doubt a possible circumstance of the offending which, if proved, would be adverse to the offender but the offender fails to establish on the balance of probabilities a competing possibility which, if proved, would be favourable to the offender, the judge may proceed to sentence the offender on the basis that neither of the competing possibilities is known.”

4. Having regard to these principles, I make the following findings of fact in respect of Counts 1 to 5 on the Indictment (herein referred to as “the fraud offences”).

5. Count 1 concerned conduct between 22 December 2020 and 13 December 2021, when the offender intentionally caused false claims to be submitted for services provided by SOS Restorations Pty Ltd that were not provided with the intention of dishonestly obtaining a gain from the NDIA, knowing that would be dishonest according to the standards of ordinary people. SOS Restorations Pty Ltd was a company which Sam Diego was the sole shareholder, director and secretary. The claims were submitted through a company controlled by the offender, namely Quick Health and Care Services Pty Ltd (“Quick Health”) and the total of the claims paid was $1,032,456.76. That money was paid into the Westpac Banking Corporation account of Quick Health ending in 5597.

6. Count 2 concerned conduct between 1 February 2022 and 10 February 2022, when the offender intentionally caused claims to be submitted to the NDIA for support services performed by SOS Restorations Pty Ltd that were not provided, through Quick Health with the intention of dishonestly obtaining a gain from the NDIA in the sum of $8,205.57 which money was paid into the Quick Health Westpac account ending in 5597.

7. Count 3 concerned conduct between 9 May 2022 and 12 July 2022 when the offender intentionally caused claims to be submitted to the NDIA for support services performed by SOS Restorations Pty Ltd that were not provided, through both Quick Health and Smart and Incredible Care Pty Ltd (“SAIC”) with the intention of dishonestly obtaining a gain from the NDIA in the sum of $26,079.86 which monies were paid into two accounts, namely:-

8. Quick Health Westpac account ending in 5597 ($25,007.81)

9. Ake Disability Services Bankwest account 184943-9 ($1,072.05).

10. Count 4 concerned conduct between 1 June 2022 and 31 December 2022, when the offender intentionally caused claims to be submitted to the NDIA for support services performed by Maryanne Day trading as Day In Day Out that were not provided, through Quick Health and SAIC with the intention of dishonestly obtaining a gain from the NDIA in the sum of $581,530.95, which monies were paid into the following four accounts:-

11. Quick Health Westpac account ending in 5597 ($430,543.07)

12. Ake Disability Services Bankwest account 184943-9 ($78,658.31)

13. Giving Disability and Community Services Pty Ltd Suncorp account ending 3241 ($15,189.05), and

14. SAIC NAB account ending 6782 ($57,140.52).

15. Count 5 concerned conduct between 1 January 2023 and 2 July 2023, when the offender intentionally caused claims to be submitted to the NDIA for support services performed by Maryanne Day trading as Day In Day Out that were not provided, through the two companies Quick Health and SAIC, with the intention of dishonestly obtaining a gain from the NDIA in the sum of $564,694.76 which monies were paid into the following accounts:-

16. Quick Health Westpac account ending in 5597 ($361,848.57), and

17. SAIC NAB account ending in 6782 ($202,846.19).

18. Count 6 concerned the offender dealing with proceeds of crime being the monies referred to in Counts 1 to 5. She did so by engaging in banking transactions on the bank accounts into which the fraudulently obtained NDIS benefits were paid during each charge period, which money was wholly or partly derived from the fraud offences in Counts 1 to 5. At the time, the offender believed those monies to be proceeds of indictable crime, her belief having arisen out of her intentional and knowing commission of the offences in Counts 1 to 5.

19. I find that the offender used the identity of employees of Quick Health to open bank accounts across various institutions and also to register business names and corporations including amending the names of officeholders in those companies. The evidence established that the offender was responsible for opening and or controlling the four bank accounts referred to in Counts 1 to 5 above. She also either opened and/or controlled three further bank accounts, namely:-

20. Bankwest account number ending 773-6 in the name of ACN 647 616 144 Pty Ltd.

21. Bankwest account number ending 262-5 in the name of Giving Disability and Community Services.

22. Westpac account ending 0007 in the name of ACN 647 616 144 Pty Ltd.

23. Between 28 February 2022 and 29 June 2023, the offender transferred from the accounts of SAIC, monies to either herself or various entities controlled by her, namely:-

(a) ACN 647 616 144 Pty Ltd. (b) Ake Ulutui and Ake Disability Services. (c) To the offender’s personal account. (d) To the offender’s mother, Hanem Ibrahim Fahmy and; (e) To Quick Health.

13. In furtherance of the offences committed in Counts 1 to 5, I find that the offender fabricated contractual agreements and authorities and/or forged or had forged signatures appended thereto (namely those of Sam Diego, Maryanne Day, Ake Ulutui, Hiba Sankari, Ghinwa Bassal and Roshani Bagale) so as to falsify the documents referred in the following schedule (derived from the document marked MFI 173 at trial) to bolster her claim that she was operating a legitimate business:-

| Exhibit No. | Date | Description | Parties to document | | N | 25/04/2022 | Consultancy agreement | Day in Day Out Disability Support Services (Maryanne Day) and Quick Health and Care Services Pty Ltd | | O | 21/04/2022 | International Transfer/RTGS document | Roshani Bagale and Bankwest | | R | 12/07/2021 | Contract agreement | Ake Disability Services Pty Ltd and Hiba Sankari | | S | 10/07/2021 | Authority | Ake Ulutui and Ebtesam Ibrahim Mahmoud Fahmy | | X | 29/03/2021 | Contract agreement | Giving Disability and Community Services Pty Ltd and Ghinwa Bassal | | Y | 10/01/2021 | Consultancy agreement | SOS Restorations Pty Ltd (Sam Diego) and Ebtesam Fahmy | | Z and Exhibit 13 | 29/04/2021 | Contract agreement | Roshani Bagale, Giving Disability and Community Services Pty Ltd and Ghinwa Bassal | | 3 | 25/03/2022 | Contract agreement | Day In Day Out Pty Ltd and Hiba Sankari | | 9 | 05/01/2021 | Consultancy agreement | SOS Restorations Pty Ltd and Quick Health and Care Services Pty Ltd | | 11 | 29/04/2021 | Authority | Roshani Bagale and Hiba Sankari | | 12 | 29/04/2021 | Consultancy agreement | Giving Disability and Community Services Pty Ltd and Quick Health and Care Services Pty Ltd | | 14 | 21/04/2021 | International Transfer/RTGS document | Roshani Bagale and Bankwest | | 24 | 09/07/2021 | Consultancy agreement | Ake Disability Services and Quick Health and Care Services Pty Ltd | | 25 | 25/02/2022 | Consultancy agreement | Smart and Incredible Pty Ltd and Ebtesam Fahmy | | 26 | 04/10/2022 | Acknowledgement Declaration | Ake Ulutui | | 38 | 05/01/2021 | Contract agreement | Sam Diego and Ghinwa Bassal | | 53 | 05/01/2021 | Authority | Sam Diego and Ghinwa Bassal |

14. The offender gave evidence that she engaged in arm's length transactions with the signatories to the agreements as a result of which she only submitted claims for work carried out by support workers employed by those corporations or businesses, based on timesheets provided by support workers, and therefore she did not knowingly make any false claims. That defence was rejected by the jury, and I find that those contractual agreements and timesheets were falsified by the offender.

15. The offender's control of the various corporations and bank accounts could be inferred from the numerous banking records, bank cards and corporate records seized during the execution of search warrants at her residence and place of business on 29 June 2023 and on her subsequent arrest. That the offender dealt with the proceeds of crime (Count 6) was amply demonstrated by the summaries and analysis of banking transactions compiled by the Crown's expert, Ms Natalie Watson in Exhibit J, particularly Tables 5A and 5B thereof.

The sentence hearing

16. The sentence hearing took place on 31 July 2026. The Commonwealth Crown Sentence Summary became Exhibit A and it included a proposed statement of facts for sentence which replicated the Crown Case Statement at trial. It also included custodial records and a bail chronology.

17. The offender relied on a report of Dr M Sidhu dated 17 July 2026, which became Exhibit 1. Dr Sidhu is a forensic psychologist who assessed the offender on 2 July 2026 for 1 hour and 50 minutes. The offender was born in 1969 and is now 57 years old. Dr Sidhu took a developmental and family history. The offender was born in Egypt, the eldest of five children and was brought up in a loving environment. She came to Australia in 2001, at the age of 32 years on a visitor visa but she subsequently obtained a protection visa. In Egypt she had obtained a degree in psychology and a teaching diploma and worked consistently. In Australia she worked first as a cleaner and then began chaperoning children to school and daycare as part of their NDIS plans. From this work she became familiar with the NDIS systems and eventually opened her own NDIS business, according to the history taken by Dr Sidhu.

18. The offender has been married to her husband for 21 years and they have two children, a son aged 15 and a daughter aged 17 years.

19. Dr Sidhu noted that the offender maintains her not guilty plea in respect of the index offending. Dr Sidhu opined that the offender has no criminogenic risk factors that require intervention to reduce her risk of re-offending and has pro-social support from her family. She opined that the offender’s lack of criminogenic risk factors reflects in her low risk of re-offending, although she has struggled to adapt to her incarceration. She described the offender as “psychologically overwhelmed by navigating custody at her age which led to her declining mental health, struggling with depression and anxiety, particularly social withdrawal and ruminating thoughts”. She further opined that the offender may benefit from a community based sentence or a longer parole period.

20. The offender also relied on a report dated 27 July 2026 from Mr C Awit, registered psychologist, which became Exhibit 2. The purport of this report was to set out the hardship to the offender’s husband and children caused by her incarceration, however at the hearing the offender, by her counsel, disavowed reliance on paragraphs 1 to 27 thereof in respect of the offender’s husband. Reliance on the report was therefore confined to the offender’s two children. Her daughter, AM was born in 2009 and was currently in year 11 at school. Since her mother’s arrest she has struggled with concentration, focus, poor motivation and felt that her grades were slipping. Prior to her mother’s arrest, her daughter described a normal developmental upbringing free from anxiety or depressive symptoms. Since her mother’s arrest, over the last 3 years she had been subjected to harassment, had become anxious and struggled with low mood, low motivation, overthinking, bombarding negative thoughts, loss of things she used to be interested in, heart thumping in her chest, and extreme nervousness. Since her mother had been found guilty and incarcerated, she now felt “more angrier, more emotional and feels she is struggling to regulate her emotions”. The author noted that AM reports some fleeting suicidal ideation but states that she would never harm herself.

21. Following assessment, her test results indicated that she is suffering from extremely severe levels of depression, moderate levels of anxiety and severe levels of stress.

22. Mr Awit also assessed the offender’s son, DM who was born in 2011. He reported normal developmental milestones, however he was subject to bullying between years 4 and 6 at school. His mother was arrested when he was in year 7 and since then he started hanging out with the wrong crowd and was always angry. He reported often feeling down. He is presently in year 10 but has reported a decline in motivation and has stopped playing sport.

23. DM also reported some harassment following his mother’s arrest. Following assessment, his test results indicated that he was suffering from moderate levels of depression, moderate levels of anxiety and severe levels of stress.

24. Mr Awit opined that the offender’s arrest, and current incarceration have significantly impacted both her children and their underlying conditions will be further exacerbated following imposition of her sentence.

The Crown submissions

25. Learned Senior Counsel for the Crown relied on a thorough and detailed written outline of submissions. He characterised the fraud offences in Counts 1 to 5 as relating to 1,078 false payment requests to the NDIA between 22 December 2020 and 29 June 2023, against the plans of 44 NDIS participants. The proceeds of those fraud offences totalled $2,212,000. Count 6, (“the money laundering offence”) related to the offender’s dealing with the proceeds of the fraud offences by engaging in banking transactions with those monies. In an overview of the offending conduct, counsel described how the offender caused the false payment requests to be made through two companies she controlled, each of which was a registered NDIS service provider. The first was Quick Health. The offender was the sole director, secretary and shareholder of Quick Health at all relevant times. Quick Health became a registered NDIS service provider on 31 July 2017. The second company was SAIC. Although the offender was not a director of SAIC, she caused Ake Ulutui - a woman she employed as a cleaner - to become its director on 7 February 2022 without Ms Ulutui's knowledge or consent, thus gaining control of it. The offender controlled SAIC at all relevant times.

26. The offender used her control of Quick Health and SAIC to defraud the NDIA by dishonestly submitting false claims for services that were not provided to the relevant NDIS participants, utilising the details - including the Australian Business Number (“ABN”) - of two entities known to her, SOS Restorations Pty Ltd (“SOS Restorations”), a company which was registered in the name of a Mr Sam Diego (“Diego”) and a second business Day In Day Out, the trading name for a sole trader, Ms Maryanne Day. The offender, in effect, falsely claimed that SOS Restorations (in respect of the claims covered by Counts 1 to 3) and Maryanne Day trading as Day In Day Out (in respect of Counts 4 and 5) had provided the services that were the subject of the payment requests when those services had not been provided.

27. The Crown noted the maximum penalty for each of the offences as set out above were an indication of the seriousness with which Parliament views these offences. The Crown submitted that a sentence of imprisonment to be served by way of full-time custody with a non-parole period is the only appropriate sentence here.

28. The Crown then set out well-established principles concerning fact finding following a jury verdict, and sentencing principles in relation to both fraud and money laundering offences which are not in issue. The Crown noted that fraud on the Commonwealth is difficult to detect and its investigation and prosecution is typically complex, time consuming and resource intensive. Further, as is typical of social security systems, the NDIS is a system based on trust and good faith and is therefore open to abuse. In assessing the objective seriousness of the offending of the fraud counts, counsel submitted that the Court should take into account the following:-

(a) The period over which the offending occurred. Offending, which is isolated or spontaneous, will, as a general proposition, be regarded as less serious than that which involves a repetitive course of conduct which continues over an extended period; (b) The amount of money defrauded; (c) The degree of planning, premeditation and sophistication; (d) Any breach of trust; (e) The status of any victim; and (f) The circumstances in which the offending ceased.

29. In relation to the money laundering offence in Count 6, the Crown submitted the following matters are relevant to sentencing for such offences:-

(a) Firstly, it is necessary to consider where the offence sits in the grading of the offences within the scheme provided by Division 400 of the Criminal Code; (b) Secondly, the precise circumstances of the money laundering must be considered, including:

(i) The role of the offender in the particular money laundering arrangement; (ii) Whether the offender was the author or the instigator of the arrangement; (iii) The degree of authority reposed in the offender in carrying out the arrangement; (iv) The precise actions of the offender which constituted the dealing for the purposes of the offence; (v) The period of time over which the offence was committed; (vi) The number of transactions involved; (vii) The amount of money involved; and (viii) Whether the money or property was beneficially the offender’s or not, and if not, the value of any intended reward.

(c) Thirdly, where possible, it is relevant to take into account the degree of awareness or belief, which is the foundation of the relevant mental state alleged; (d) Prior good character is of less significance when the offending is engaged in for profit over a significant period of time and with a large number of transactions; (e) General deterrence is a significant factor in money laundering offences; and (f) Consideration of the sentence for which the offender may have been liable if charged with the predicate offence is a distraction from the sentencing process in respect of the offence charged. Division 400 of the Criminal Code precludes consideration of the maximum sentence of the predicate offence.

30. The Crown then made the following submissions regarding the matters pursuant to s16A(2) of the Crimes Act 1914 (Cth) (“the Crimes Act”), which the Court should take into account.

s16A(2)(a) – Nature and circumstances of the offending

31. In respect of Counts 1, 2 and 3, the Crown submitted the offending involved as follows:-

32. Count 1 – Between 22 December 2020 and 13 December 2021, 579 fraudulent claims were submitted resulting in a gain of $1,032,456.76.

33. Count 2 – Between 1 February 2022 and 10 February 2022, 5 fraudulent claims were submitted resulting in a gain of $8,205.57.

34. Count 3 – Between 9 May 2022 and 12 July 2022, 17 fraudulent claims were submitted resulting in a gain of $26,079.86.

35. Counts 4 and 5 related to the offender causing claims to be submitted to the NDIA for NDIS support services performed by Day in Day Out, that were not provided as follows:-

36. Count 4 – Between 1 June 2022 and 31 December 2022, 238 fraudulent claims were submitted for a gain of $581,530.95.

37. Count 5 – Between about 1 January 2023 and 2 July 2023, 240 fraudulent claims were submitted for a gain of $564,694.76.

38. The Crown submitted that the antecedent steps taken by the offender, including arranging for the appointment of Ake Ulutui as a director, secretary and shareholder of SAIC and the steps taken to control the four bank accounts into which the proceeds of the fraudulent payment requests were made, were relevant in assessing the objective seriousness of the offending. The offender was the sole director, secretary and shareholder of Quick Health from at least October 2020 and engaged in a repetitive course of conduct for a period of about 2 ½ years between December 2020 and July 2023. The total number of fraudulent claims submitted was 1,079 with the total quantum of the gain $2,212,967.90.

39. The Crown submitted the offending was highly sophisticated in nature, involving multiple layers of deception including the submission of claims for payment for work that was not done. The Crown submitted the offending was careful and organised in a way that gave the offender’s conduct the illusion of legitimacy. For example, the proforma invoice headed “SOS Restorations” which was used to make claims submitted by that company through Quick Health appeared legitimate. The offender was not only the instigator of the scheme but had complete authority over it.

40. The Crown submitted that Count 1 involved a breach of personal trust given that Mr Diego’s niece was a NDIS participant who had intellectual disabilities for whom the offender was responsible as her service provider. The offender utilised an invoice for work carried out by Mr Diego at her premises, which included the details of the ABN of SOS Restorations to make the claims covered by Counts 1 to 3.

41. The Crown conceded that Counts 2 and 3 are not as objectively serious as Count 1 given the quantum for each was significantly less than for Count 1.

42. In relation to Counts 4 and 5, the Crown submitted that Ms Day’s daughter was a NDIS participant for whom the offender was a provider and in that context there was a breach of personal trust in that the offender used Ms Day’s position as a legitimate NDIS provider for her daughter to issue the fraudulent invoices. She had obtained the ABN details of Day In Day Out through invoices Maryanne Day had previously provided to her.

43. Also relevant in the Crown’s submission was that the offender took advantage of “numerous people” but notably, Ake Ulutui, whose identity was used to create Ake Disability Services, and to open the NAB account in the name of SAIC and the Bankwest account in the name of Ake Disability Services, together with a NAB Everyday Business account in the name of Ake Ulutui. Also, Roshani Bagale whose identity was used by the offender to open a Suncorp bank account in the name of Giving Disability and Community Services (into which money was paid in Count 4).

44. The Crown submitted that the offending in Counts 1 to 5 was repetitive and persistent. Not only was the offender the perpetrator of the scheme, but she also made efforts to disguise her criminal behaviour by installing innocent people in ostensible positions of power to minimise the risk of detection. Further, the offending did not cease until a search warrant was executed on 29 June 2023 at the accused’s residential premises.

45. Count 6 concerned the money derived from the fraud offences, which was dealt with over a significant period, namely between 17 February 2021 and 2 July 2023. The majority of the fraudulently obtained funds were transferred into the Quick Health account in the sum of $1,858,061.78. These funds were dealt with by the offender transferring the money to other accounts or withdrawing it in cash withdrawals. The precise actions included transfers to herself ($326,265), to her mother’s account ($222,688), cash/ATM withdrawals ($409,500), transfers to A.C.N…144 Pty Ltd accounts for $1,270,629, transfers to Ake Disability Services Bankwest account ($1,050,629.00) and to Ake Ulutui NAB account ($346,000).

46. The Crown submitted the appointment of the offender’s employees as directors of the companies was reflective of her pre-meditated desire to legitimatise the service providers and bank accounts so as to avoid scrutiny or suspicion.

47. The Crown submitted the various consultancy agreements and contracts falsified by the offender were also designed to give these arrangements the air of legitimacy and to avoid detection. Both Ake Ulutui and Roshani Bagale were employees who were vulnerable in the sense that they relied on the offender for their wages.

48. The Crown further submitted that the offender’s conduct involved a breach of trust that the NDIS necessarily places in providers to ensure their claims are accurate and honest, which was a necessary feature of the scheme so that the needs of vulnerable members of the community were met. The Crown characterised this breach as an egregious abuse of trust which elevated the objective seriousness of the offender’s conduct.

s16A(2)(ja) and (2)(k) – General deterrence and adequate punishment

44. The Crown submitted that general deterrence is a significant consideration in sentencing, to send a message to the community that this type of offending is not “victimless”, but in fact it undermines public trust in the NDIA and diverts money away from the NDIS system, which is designed to assist, protect and empower people with disabilities who may be amongst the most vulnerable in the community.

45. The Crown submitted the offender’s conduct was calculated and pre-meditated, and that the offending was sophisticated in that it involved the use of multiple bank accounts and multiple service providers, often set up without the knowledge of the person whose identity was used to create the account.

46. Similarly, the offending in Count 6 was highly sophisticated and complex in a way that would deflect suspicion away from the offender. Thus, general deterrence should be given substantial weight by the Court in determining the appropriate sentence.

s16A(2)(j) and (2)(m) – Specific deterrence, character, antecedents and prospects of rehabilitation

47. The Crown submitted that the offender is 57 years of age with no prior criminal history, however any leniency which may otherwise be extended to her on behalf of her prior good character should be tempered, having regard to the context in which the offending occurred over a period of 2 ½ years. The Crown submitted the offender is not entitled to a finding that this is an uncharacteristic aberration.

48. The Crown noted the offender’s employment history in Australia and the discrepancies in her reported income for financial years ending 30 June 2020, 30 June 2021 and 30 June 2022. The Crown submitted her employment history reflects that she is a woman of intelligence and acumen and that the offending demonstrated greed rather than need. The Crown conceded that the offender’s incarceration will likely have a significant deterrent effect on her.

s16A(2)(f) and (g) – Contrition, remorse and guilty plea

49. The Crown noted that the offender’s plea of not guilty should not attract the risk of imposition of a penalty more serious than would otherwise have been imposed, referring to Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74.

50. The Crown noted that Dr Sidhu indicated that the offender maintains her not guilty plea and as a result it was inappropriate to explore the motivations for her offending. The Crown noted there was no evidence of the offender accepting responsibility or remorse for her conduct, rather than for the position in which she now finds herself.

51. The Crown further noted that the offending did not cease as a result of the offender’s own volition. Whilst this was not an aggravating factor, it demonstrated the lack of remorse or contrition for her offending conduct.

s16A(2)(n) – Prospects of rehabilitation

52. The Crown noted that there was little evidence before the Court in relation to the offender’s prospects of rehabilitation. Dr Sidhu had not provided an opinion as to the offender’s prospects but did opine that the absence of criminogenic factors put her at a low risk of re-offending. Given the absence of motivation for her offending, and her otherwise unblemished criminal record, the Crown submitted that the offender’s difficult experience in custody may lead to a finding that her prospects of rehabilitation are “somewhat positive.”

s16A(2)(p) – Probable effect on the person’s dependants

53. The Crown accepted that the separation of the offender’s two children aged 15 and 17 years from their primary carer would cause them pain and stress. The offender’s 15 year old son had been diagnosed with adjustment disorder with mixed anxiety and depressive symptoms by Mr Awit, and her 17 year old daughter had been diagnosed with a major depressive disorder with anxiety. The Crown submitted that there was no evidence to suggest that the hardship would rise above the level of what would ordinarily be expected in a situation where a parent becomes incarcerated. Further, there was no evidence to suggest that the offender’s husband was not capable of caring for the children.

54. The Crown annexed to its submissions a schedule of comparable sentences imposed by intermediate courts of appeal for offences contrary to s135.1(1) and s400.3(1) of the Code. Included in the schedule were a number of first instance decision cases that dealt specifically with NDIA fraud. The Crown, however, submitted that the appropriate sentence should be based on general sentencing principles with regard to the guidepost of the maximum penalty provided by Parliament.

55. In his oral submissions, learned Senior Counsel for the Crown highlighted the seriousness of the offending in Counts 1 to 5 and, in respect of the money laundering offence in Count 6, submitted that the sum involved of $2.21 million could have been larger but for application of the “dilution” principle. The Crown submitted as a matter of fact, that the debt was at least that amount, but what was relevant was that the offender did in fact deal with more than $1 million.

56. The Crown submitted that the s17A threshold had been crossed here and the only appropriate sentence was one of full-time custody with a non-parole period imposed.

57. The Crown rehearsed its submissions regarding the assessment of objective seriousness of the offending for the fraud counts, which involved significant planning, pre-meditation and sophistication. The Crown highlighted the offender’s use of Quick Health and SAIC as service providers and her manipulation of the two ABNs of SOS Restorations Pty Ltd and Day In Day Out to make in excess of 1,000 false claims without the consent of the principals of those companies. Similarly, the Crown rehearsed its submissions relating to the creation and use of numerous bank accounts to deal with the proceeds of those crimes.

58. The Crown highlighted the breach of trust involved in Counts 1 to 5. It submitted that the NDIS was a social welfare system designed to improve the lives of the disabled in the community and the NDIA was designed to ensure that such vulnerable members of the community would receive their funds readily, which involved a significant degree of trust which the offender had breached in a significant way. Whilst there was no individual victim here, the Australian community generally suffered financial disadvantage as a result of this offending.

59. The Crown rehearsed its submissions regarding the money laundering offence in Count 6, submitting that the offender played a significant role as author and instigator of the scheme and that she exercised authority over the operation of the four bank accounts involved. This offending again abused the authority of the NDIS and the extent of the offending was set out in the tables compiled by the expert witness, Ms Watson in Exhibit J at trial. The distribution of those monies identified in Tables 5A and 5B of Exhibit J demonstrated that she intentionally engaged in those transactions.

60. The Crown rehearsed his submissions regarding the application of general deterrence, specific deterrence and the offender’s prior good character in sentencing. The Crown referred to the decision of Abraham J in Commonwealth Director of Public Prosecutions v Fairfull [2026] FCA 748 at [97] where her Honour held that the offender there was not a first time offender from the time he committed the second offence and that it follows “that the mitigating effect of good character is lessened in circumstances where an offender has engaged in the commission of a number of offences over a long period of time”.

61. The Crown referred to the manner in which the offender had conducted her defence at trial which was relevant to the notions of contrition and remorse. The Crown submitted that the jury must have rejected the defence case in respect of most of the contractual agreements and timesheets presented by her to the Court as not being legitimate or truthful documents, rather they were clumsy forgeries designed to cover up the offending, completed ex post-facto the offending.

62. The Crown rehearsed its submissions regarding the offender’s prospects of rehabilitation and hardship caused to the offender’s children. Even accepting the diagnoses proposed by Mr Awit, the Crown submitted there was no evidence of relevant hardship above what would ordinarily be expected when a parent is incarcerated and there was no evidence that the offender’s husband is unable to look after the children.

63. Finally, the Crown sought a reparations order pursuant to s21B(3) of the Crimes Act in the sum of $2,212,967.90.

The offender’s submissions

64. Counsel for the offender also relied on a written outline of submissions. Counsel took issue with the Crown’s proposed facts, stating they merely restate the pre-trial Crown Case Statement. He contended that Sam Diego’s evidence was unreliable and as a finding of fact by itself cannot meet an evidentiary threshold. Similarly, the Crown’s assertion that Ake Ulutui did not know about her role as a director was in conflict with the evidence at trial. Similarly, facts in respect of Hiba Sankari and Ghinwa Bassal were in dispute.

65. Counsel submitted that all that could be said, having regard to all the evidence is that the jury found the elements of Counts 1 to 5 had been proved and that the quantum in Count 6 exceeded $1 million. Counsel submitted that it did not follow the jury verdict that the jury found that all of the alleged claims were false or that all 599 claims were fraudulent. Counsel submitted that at least some of the claims were in respect of legitimate work that was actually carried out, a fact supported by the evidence of the OIC, that a large number of the relevant participants did not support the investigation.

66. Counsel further contested the Crown proposition that all of the timesheets were fraudulent.

67. Contrary to the jury verdicts, counsel submitted that a number of the services subject of false claims by SOS Restorations Pty Ltd were actually provided and therefore could not have been fraudulent. Counsel relied on the evidence at trial that there was no evidence as to what happened to the timesheets stored at the offender’s business premises following execution of the search warrant and that there was no continuity of possession of exhibits recovered from that search.

68. Counsel conceded that the Court would likely find the offending had crossed the custodial threshold in s17A of the Crimes Act. His primary submission was that the custodial sentence be kept to a minimum in order to encourage rehabilitation.

69. Counsel further submitted the Court should take care to avoid double counting in respect of aspects that are inherent in the offending, such as planning and abuse of trust. Noting the importance of deterrence, given the prevalence of this type of offending in society, counsel submitted the Court should avoid a crushing sentence that would deprive the offender of any hope of rehabilitation and might induce a feeling of haplessness.

70. Counsel submitted that mitigating factors were the offender’s previous good character, her low risk of recidivism and good prospects of rehabilitation.

71. Counsel submitted the Court would have regard to the impact of the offender’s incarceration on her two teenage children at critical stages in their education and the personal factors identified by Dr Sidhu, which would make her period of incarceration more onerous.

72. Counsel submitted that the sentences for the various offences should be largely concurrent given that the multiple offences were part of a single episode of offending with common factors.

73. The offender urged caution in respect of the use of sentencing statistics for like offending.

74. In his oral submissions, counsel conceded there was no great difference from the Crown’s position in respect of the application of sentencing principles and conceded that the custodial threshold had been crossed. Counsel rehearsed his submissions regarding the offender’s good character as a mitigating factor and Dr Sidhu’s opinion that the offender was a low risk of re-offending and a good vehicle for rehabilitation. Further, the offender maintaining that she was innocent was not an aggravating factor, but meant she was not entitled to leniency.

75. Counsel informed the Court there were forfeiture proceedings on foot in the Supreme Court of NSW and an outstanding Australian Taxation Office demand for unpaid taxes based on monies the ATO characterised as income from the NDIS “wholly retained by the offender”. This assumed that no monies were paid to service providers on the basis that no services were ever provided based on the Crown case.

76. Counsel rehearsed his submissions regarding the subjective features outlined in Dr Sidhu’s report and highlighted the need for the application of the principle of totality for any aggregate sentence to be imposed.

77. In respect of the forfeiture proceedings, counsel submitted that the Court should take them into account in sentence, relying on R v Farah [2005] NSWCCA 67 at [23] and Attorney-General (NT) v Emmerson (2014) 253 CLR 393; [2014] HCA 13, however counsel conceded this could not be taken into account in mitigation “per se”.

78. Counsel submitted that having regard to s320 of the Proceeds of Crimes Act 2000 (Cth) and s21D of the Crimes Act, the Court could not double dip and therefore the Court could take into account the forfeiture proceedings in the Supreme Court of NSW and the ATO debt demand which may lead to bankruptcy proceedings. Counsel submitted that the Court would therefore not impose the forfeiture order sought by the Crown.

The Crown submissions in reply

79. The Crown submitted that pursuant to s320 of the Proceeds of Crime Act 2000 (Cth) the Court was entitled to make a forfeiture order pursuant to s21B of the Crimes Act. Here, there was no evidence of the forfeiture proceedings which were still unresolved.

80. The Court invited the Crown to consider the Court of Criminal Appeal decision in Badaric v R [2025] NSWCCA 117 with respect to the statement by Sweeney J at [76], that “where a person is to be sentenced for overlapping offending of dealing with the proceeds of his own crimes the sentence for the offence of dealing with proceeds of crime should be concurrent with the sentences for the other offending, not accumulated.” The Crown provided a supplementary written submission dated 7 August 2026, noting that in Badaric v R, Price AJA had disagreed with that broad statement of principle and N Adams J, as her Honour then was, did not adopt the reasons of Sweeney J and expressed no view in circumstances where it had not been dealt with in submissions by the parties to that case. The Crown adopted the judgment of Price AJA at [5]-[6] where his Honour held that the broad statement of Sweeney J was not an apt description in that case, where the applicant’s dealing with the money by his dishonest activity concerned additional criminality, and did not constitute just receiving the fraudulent funds for his own use. The Crown submitted here, there was a level of sophistication in the dealing with proceeds of crime that captured additional criminality. The fraudulently obtained funds were not simply transferred to accounts only in the name of the offender, but rather were distributed to accounts in other people’s names and business names, which, it could be inferred, was to distance herself further from the source of the funds. The Crown, however, accepted there was a significant overlap as the funds were derived from the conduct in Counts 1 to 5 and therefore submitted there should be some degree of accumulation in sentencing for Count 6 to recognise the additional “mischief” which Counts 1 to 5 did not account for.

81. The offender’s legal representative offered no submission in reply.

Determination

82. Pursuant to s16A of the Crimes Act a Court must impose a sentence that is of a severity appropriate in all of the circumstances of the offence. Section 16A(2) provides that the Court must take into account matters that are relevant and known to the Court as follows:-

s16A(2)(a) – The nature and circumstances of the offence

83. The circumstances of the offending in each of Counts 1 to 5 are set out in my findings of fact above. In assessing the objective seriousness of the offending, I have taken into account that the offending occurred over a 2 ½ year period. I have also taken into account the amount of money defrauded in each count, and that the offending was pre-meditated and sophisticated offending involving a great deal of planning having regard to the conduct of the offender in her manipulation of corporate entities and her creation and use of bank accounts into which the proceeds of the fraud offences were paid. All of the offending involved a breach of trust, having regard to the purposes for which the NDIS was established and the systems utilised by the NDIA to ensure that vulnerable members of the community, namely persons with a disability, had their needs met and that their service providers were promptly compensated.

84. I therefore find that Count 1 was objectively very serious offending, which also involved a breach of personal trust given that the genesis of the offending arose out of the fact that Mr Diego’s niece was a NDIS participant who had intellectual difficulties for whom the offender was responsible, as her service provider. It was after Mr Diego provided an invoice for work carried out at the offender’s premises that she utilised details of the ABN of his company, SOS Restorations Pty Ltd, in respect of services that were not performed which led to the offender receiving the sum of $1,032,456.76.

85. That offending occurred over approximately 1 year.

86. Counts 2 and 3 were less objectively serious in that they occurred over shorter periods of time and resulted in much smaller sums of money being gained, namely $8,205.57 and $26,079.86 respectively.

87. Counts 4 and 5 also involved a breach of personal trust in that Ms Day’s daughter was a NDIS participant for whom the offender was a provider. The offender utilised invoices received from Ms Day to obtain her ABN which enabled her to fraudulently make claims for services that were not provided. Count 4 involved conduct over a period of 6 months which resulted in a gain of $581,530.95. Count 5 concerned conduct again over a period of approximately 6 months, which resulted in a fraudulently obtained gain of $564,694.76.

88. I have also taken into account the conduct of the offender in taking advantage of employees such as Ms Ulutui and Ms Bagale, in using their identity information to open up bank accounts and be appointed to corporate positions in corporations controlled by the offender. I accept the Crown submission that this was done in an effort to disguise the offender’s criminal behaviour and to minimise the risk of detection. I further accept the Crown submission that the offending in Counts 1 to 5 was repetitive and persistent with over 1,000 fraudulent claims being made in the period of 2 ½ years up until July 2023. The offending did not cease until the search warrant was executed at the offender’s residential and business premises on 29 June 2023.

89. The offending in Count 6 also constituted serious offending, involving the offender either opening and controlling a total of 7 bank accounts referred to in [11] above, into which the fraudulently obtained funds were paid, and then transferring funds either to herself or various entities controlled by her as outlined in [12] above. This involved a level of sophistication, particularly having regard to the misuse by the offender of her employee’s identification. In dealing with the proceeds of crime, this constituted additional criminality to that involved in the offending in Counts 1 to 5.

s16A(2)(c) – The course of conduct of the offending

90. As outlined above, the offending took place over a period of 2 ½ years and involved the making of false claims on the NDIA through two registered providers for services that were not provided. As set out above, it was persistent and repetitive offending, however the offender is to be sentenced for the six discrete offences for which she has been found guilty.

s16A(2)(d) and (e) – The personal circumstances of any victim of the offence and the loss and damage resulting from the offending

91. Whilst there was no individual victim of any of the offences in Counts 1 to 5, the offences caused significant loss or damage due to the loss of revenue from the Commonwealth scheme established to assist those with disabilities in the Australian community. Further, such offending is difficult to detect and requires significant resources to do so, further adding to the loss resulting from the offender’s conduct.

s16A(2)(f) – Contrition of the offender

92. By pleading not guilty to the offences and by re-stating her innocence in the face of the jury verdicts, the offender has demonstrated no contrition for her offending conduct.

s16A2(j) – Specific deterrence

93. Given the offender’s claim of innocence in relation to the offending conduct, specific deterrence will have a role to play in sentencing in that the offender must understand that any repetition of such offending would lead to more severe punishment.

s16A2(ja) – General deterrence

94. General deterrence is important in sentencing for social security fraud type offences. As set out above, such offending conduct is difficult to detect and involves the expenditure of considerable resources to do so. Importantly, Parliament has prescribed severe maximum penalties for such offending conduct, and a clear message must be sent to like-minded members in the community that such offending will not be tolerated, and that the Courts will impose condign punishment in appropriate cases.

s16A(2)(m) – The character, antecedents, age, means and physical or mental condition of the offender

95. The offender is now 57 years of age and was aged 51 to 53 years at the time of the offending. She was raised in Egypt, was well-educated obtaining a degree in psychology and a teaching diploma and worked consistently there. She came to Australia in 2001 and has been married for 21 years and has two children. I accept Dr Sidhu’s opinion that she has no criminogenic risk factors. Given that she ran an otherwise legitimate business as a NDIS provider, her motivation for the offending inevitably must be found to have been greed rather than need as submitted by the Crown.

96. I further accept Dr Sidhu’s opinion that she is a low risk of re-offending and that at her age she has been psychologically overwhelmed by navigating custody which has led to a decline in her mental health, struggling with depression and anxiety and social withdrawal.

97. The offender has no previous criminal convictions and was a person who was otherwise of good character. As her Honour Abraham J said in Commonwealth Director of Public Prosecutions v Fairfull, good character may be of lesser significance when sentencing for what are known as “white collar” crimes. At [95] her Honour stated, “It is said that the fact that people of otherwise good character and compelling personal circumstances are tempted to engage in such conduct emphasises the need for a clear deterrent for offending of this nature”. Like the offender there, this offender was not a first time offender from the time she committed the second offence. It was only that she had not yet been caught out, and I therefore accept the Crown’s submission that the mitigating effect of good character is lessened given that the offender has engaged in the commission of a number of offences over a lengthy period of time. I therefore take the offender’s good character into account and the fact that she did not commit the first offence until she was 51 years of age, however in the circumstances of this offending, her good character has less weight than otherwise might be the case.

s16A(2)(n) – The prospect of rehabilitation of the person

98. Notwithstanding that the offender adheres to her innocence of the offences of which she has been convicted, her lack of criminogenic risk factors and the salutary impact of incarceration upon her given her age will mean that this offender has reasonable prospects of rehabilitation. She has the pro-social support of her family and I am satisfied that she will, under supervision, make a constructive return to the community.

s16A(2)(p) The probable effect of any sentence on the offender’s dependants

99. I accept the opinions expressed in the report of Mr Awit, that the offender’s daughter AM, who is currently in year 11 at school has struggled with low mood, low motivation, negative thoughts and nervousness which had affected her educational performance. The inevitable incarceration of her mother for some time into the future will exacerbate the symptoms she is currently suffering from which indicate severe levels of depression, moderate levels of anxiety and severe levels of stress.

100. Similarly, I accept the opinions expressed by Mr Awit concerning the offender’s son, DM, who is in year 10 at school and has also suffered a decline in motivation and is suffering from symptoms which indicate moderate levels of depression, moderate levels of anxiety and severe levels of stress, and that he will continue to do so whilst his mother is incarcerated. Both children were brought up in a loving environment and reported normal developmental milestones and therefore the impact on them of their mother’s custodial sentence will be significant and I have taken this into account.

Sentence

101. I have had regard to the age of the offender and my finding that a custodial sentence would be more onerous for her than the general female prison population. It will also have a significant impact on her children. However, I am mindful of the maximum penalties prescribed by Parliament of 10 years imprisonment and/or 600 penalty units in respect of Counts 1 to 5 and the maximum penalty of 25 years imprisonment and/or 1,500 penalty units in respect of Count 6. The maximum penalties reflect the seriousness with which Parliament regards such criminal conduct and remains a guideline in the sentencing synthesis. I am also mindful that general deterrence must play a significant role in sentencing for the fraud offences. A clear message must be sent to like-minded members in the community that Parliament has prescribed lengthy terms of imprisonment as maximum penalties for such offending and that the Courts will impose stern punishment in appropriate cases, particularly involving fraudulent offending which deprives vulnerable people in the community of the benefit of the monies obtained from such offending conduct.

102. I intend to impose an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”). Recently, in The King v McGregor [2026] HCA 3, the High Court confirmed that an aggregate sentence of imprisonment under s53A of the CSPA can be imposed for multiple offences against a law of the Commonwealth.

103. In order to provide transparency, I am required to provide indicative sentences for each of the offences. The indicative sentences are as follows:-

Count 1 – A term of imprisonment of 3 years and 6 months.

Count 2 – A term of imprisonment of 1 years.

Count 3 – A term of imprisonment of 1 year and 6 months.

Count 4 – A term of imprisonment of 3 years.

Count 5 – A term of imprisonment of 2 years and 9 months.

Count 6 – A term of imprisonment of 1 year and 6 months.

104. In arriving at an aggregate sentence, I am required to apply principles of totality and proportionality in sentencing. It is clear that in aggregating the sentence, the principle of totality applies, and there must be some accumulation of sentences. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:-

"[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently, a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation, a sentencing judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences."

105. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:-

"There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."

106. Applying these principles here, I am satisfied that there should be some concurrency in sentencing in respect of Counts 1 to 5, and partial concurrency also in respect of Count 6 to the sentences imposed for Counts 1 to 5, given that there was additional criminality involved in the money laundering offence. The appropriate head sentence is a term of imprisonment of 7 years and 6 months. I intend to impose a non-parole period of 4 years imprisonment to commence on 24 April 2026 and to expire on 23 April 2030.

107. I intend to make a forfeiture order as sought by the Crown in the sum of $2,212,967.90. Pursuant to s320(b) of the Proceeds of Crime Act 2002 (Cth), in passing sentence the court, "must not have regard to any forfeiture order that relates to the offence, to the extent that the order forfeits proceeds of the offence". In the absence of evidence confirming the resolution of the Supreme Court proceedings regarding forfeiture of property and an extant Australian Taxation Office demand for income tax alleged to be owing, those matters that have been raised by counsel for the offender have not been taken into account on sentence.

Orders

108. You are convicted of the offences in Counts 1 to 6 on the Indictment.

109. I sentence you to an aggregate sentence pursuant to s53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) to an aggregate sentence of 7 years and 6 months imprisonment to commence on 24 April 2026.

110. I impose a non-parole period of 4 years imprisonment to commence on 24 April 2026 and to expire on 23 April 2030. The balance of the term will be a period of 3 years and 6 months expiring on 23 October 2033, during which you will be subject to supervision.

111. I make a forfeiture order in accordance with the document marked for identification as MFI 3 at the sentence hearing.

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Amendments

14 September 2026

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