R v Kadadi

Category: Sentence

Parties: Commonwealth Director of Public Prosecutions (Crown)
Ayman Kadadi (Offender)

Representation: Counsel:
Mr L Fomiatti (Crown)
Mr P Lange (Offender)

File Number(s): 2024/00070475

Publication restriction: Nil

JUDGMENT

1. Mr Ayman Kadadi is currently 41 years of age, and he comes before the Court having pleaded guilty to two charges under s 134.2 of the Commonwealth’s Criminal Code 1995*.*

2. Sequence 1 is an offence that between 23 April 2021 and 16 August 2021 the offender made 66 fraudulent claims on the Commonwealth which resulted in him receiving a financial advantage of $68,400. Sequence 67 is an offence that between 8 August 2021 and 3 October 2021 the offender made four fraudulent claims on the Commonwealth which resulted in him receiving a financial advantage of $24,300. The total advantage received by the offender is $92,700.

3. The maximum penalty for each of those charges is 10 years’ custody and/or a fine of $133,200 per offence. The maximum sentences indicate the seriousness with which the Commonwealth parliament views offences of this nature. It sets the parameters for arriving at the appropriate sentence.

4. As these are Commonwealth offences, Part 1B of the Crimes Act 1914 (Cth) applies. Section 16A(2) of that Act sets out a range of matters that must be considered where they are relevant and known to the Court. Where relevant, common law principles also have a role to play. Section 17A of the Crimes Act provides that a Court shall not pass a sentence of imprisonment unless satisfied that no other sentence is appropriate in all the circumstances.

5. In this case, the offender submits that it would be open to the Court to impose an intensive corrections order or order the offender’s release from custody forthwith and to be placed on a recognisance. The Crown’s submission is that only a lengthy custodial sentence would acknowledge the seriousness of the offender’s conduct.

6. I note that, to date, the offender has not spent any time in custody for these offences.

THE FACTS

7. Between 23 April 2021 and 16 August 2021, the offender made 66 fraudulent claims for the Australian Government Disaster Recovery Payment. He did so in various false names and assumed identities, receiving $68,400. These amounts were one-off payments made by the Commonwealth government in order to provide immediate short-term financial assistance to Australians seriously adversely affected by a major or widespread declared disaster, such as flooding or bushfire. The payment is a single payment of $1,000 per adult and $400 per child.

8. The offender made two successful claims for these payments using the names of real people and 64 claims using false identities. On each occasion he claimed that he, and in two cases his children, had been adversely affected by the March 2021 New South Wales floods.

9. To get the funds, the offender deliberately lied to Services Australia employees by stating that water had entered his house through the roof requiring repair work. On some occasions he had multiple telephone calls to Services Australia to provide additional information, and on three occasions provided false receipts. As a result of these deceptions, Services Australia granted the claims in the total amount of, as I have said, of $68,400, which was paid into five bank accounts. That is sequence 1.

10. The next offence began at the same time the other offences were coming to an end. This offence occurred between 8 August 2021 and 3 October 2021. Here the offender made four fraudulent claims for COVID disaster payments using false identities, resulting in his receiving a financial advantage of $24,300.

11. The sum was paid weekly and it was designed to help workers who were unable to earn income or who had lost hours of work due to the coronavirus state public health order for lockdowns or restricted movements. Only one claim could be processed per day. So, customers seeking to claim for multiple weeks were required to submit separate claims over a number of days.

12. In this instance, the offender claimed to be unable to work and earn his usual income because of a public health lockdown. In order to facilitate this fraud, the offender called Services Australia on numerous occasions, frequently on consecutive days. This was sequence 67.

13. The total amounts of the claim was $92,700. It was agreed between the parties that $4,200 has been repaid to the Commonwealth through the withholding of Centrelink payments the offender would otherwise have received. He has made no voluntary payments to the Commonwealth. Taking into account the amount of $4,200 will impact on the reparation order that I ultimately make.

14. I will now deal with the applicable s 16A(2) Crimes Act considerations. I will deal, firstly, with the objective seriousness and the course of conduct, being s 16A(2)(a) and (c). It is convenient to deal with these sections together.

15. Section 16A(2)(a) requires the sentencing Court to consider the nature and circumstances of the offence. In effect, the objective seriousness of the offender’s conduct. It is, as a matter of fact, a course of conduct. When sentencing offenders for Commonwealth fraud-related offences, the following factors affect the assessment of objective seriousness:

(a) The sum obtained or the sum sought to be obtained; (b) The duration of the offending; (c) The motive for committing the offending; (d) The level of planning and sophistication of the scheme; and, (e) The steps taken, if any, to avoid detection.

16. Some or all of these matters may not be relevant in any given case.

17. In its submissions, the Crown seeks to demonstrate the seriousness of the offender’s conduct with reference to seven specific lies the offender told to facilitate the payments. They appear in the Crown’s written submissions. I reject those portions of the Crown’s submissions. If the Crown had wanted to rely on those examples, they should have been included in the agreed facts. As they were not in the agreed facts, I put them to one side.

18. I accept the submission made on behalf of the offender that the sum of money fraudulently obtained is relatively small, bearing in mind that the offence provision encapsulates offences of unlimited value. However, the quantum is only one aspect. Here, not only did the offending span nearly six months, but it involved, in combination, 70 discrete fraudulent claims across two types of benefit. There was no real reason put forward as to why these offences were committed, although there was some suggestion put forward by Mr Albassit, who recently prepared a psychological report for the offender, that it had something to do with his drug usage. I will return to that shortly.

19. I do not accept the Crown’s submission that this was a sophisticated operation. The offender exploited a system deliberately designed to lack the scrutiny of other government payments because of the emergency context in which they were made. However, in my view, this makes the conduct more serious because it exploited a system designed to help people in significant and urgent financial need.

20. The offender misused the identities of two people, one of whom was a friend, and used 68 false identities.

21. The seriousness of the offender’s conduct is aggravated by the fact that between 23 April 2021 and 17 August 2021 he was on bail in relation to an unrelated offence of supply an indictable quantity of illicit drugs. He ultimately went into custody for that matter.

22. Of the 57 days that comprise sequence 67, the offender was in custody for 48 days. The Crown accepts that the offender did not engage in any active offending conduct while in custody, although he continued to receive the payment of the benefit. This reduces the seriousness of his conduct because although he continued to receive the payments, he was not actively pursuing them and presumably, once he was in custody, he had greater concerns than cancelling the receipt of this money.

23. Sequence 1 is more objectively serious than sequence 67 for four reasons. Firstly, the quantum is greater; secondly, the period of the offending was longer; thirdly, the number of illegal transactions underpinning sequence 1 is significantly higher than sequence 67; and, as I have just indicated, because the offender was in custody after 17 August 2021 and could not generate any further payments nor easily bring them to an end.

24. I will deal now with the damage or injury arising and the effect on any victim as per s 16A(2)(e) of the Crimes Act. There is no doubt that fraud on the scale here has a corrosive effect on society. As the Crown submitted, the offender exploited a system which was designed to have a fairly low bar for a person to be eligible. This was because the funds were being administered to people who were in dire financial circumstances.

25. There are also two victims who can be clearly identified in relation to sequence 1. The first is Ms Ellissi. Her home sustained flood damage in March 2021. On 23 April 2021 the offender informed her of an ability to seek a disaster recovery payment from Centrelink. He did so on her behalf. However, the money never arrived in her bank account, but instead went to his.

26. The second real person is Mr McPherson. He had his home damaged through floods in 2021 as well. He contacted Centrelink on 1 July 2021 to make a claim, but was informed by Centrelink that a claim had already been made in his name. The person who made that claim was the offender. Those two people are real victims.

27. I will deal now with contrition and remorse, being s 16A(2)(f) of the Crimes Act. It is submitted that the offender is remorseful. He did not give sworn evidence; instead, he relies on a letter which contains hearsay statements which could not be tested in cross-examination. His letter contains a brief reference to remorse for the offences, but much of it speaks of how much he regrets his actions because of the difficulties he has caused for his family and for himself. It talks much as well about how his life has improved since the offences occurred. He states he can repay the Commonwealth, although he has not done so to date, although some Centrelink payments have been withheld. In circumstances where the offender has a history of dishonesty and is being sentenced for calculated acts of deception over six months, I place little weight on the offender’s untested and unsworn letter.

28. In the sentencing assessment report, the author states that the offender has demonstrated a level of insight into the consequences of his actions, acknowledging the privilege of accessing financial assistance within the community. He expressed regret for exploiting the support and apparently recognised the harm caused to the victims whose identity he misused.

29. The Crown does not accept there is remorse in the sentencing assessment report, nor in the offender’s letter. The Crown makes the simple point that actions speak louder than words and the offender has never repaid the debt, even when he could. Although I have some sympathy with the Crown’s position, I am prepared to accept on the balance of probabilities that the sentencing assessment report is accurate in its conclusions, that is, that the offender is remorseful.

30. I also take into account s 16A(2)(g) of the Crimes Act, that is, the offender has pleaded guilty. As this is an offence under the Criminal Code, the New South Wales legislative provisions governing the timing of the plea, and the discount that is to be afforded based on the timing, does not apply. If they did, the offender would have received a 25% reduction for his plea, as he was committed to sentence on 21 October 2024 while the matter was in the Local Court. I am going to reduce the sentence by 25 percent because the plea of guilty for both of these charges reflects his willingness to facilitate the course of justice and also does go some way to demonstrating remorse.

31. Section 16A(2)(JA) deals with general deterrence. An assessment of the need for specific deterrence involves an examination of, amongst other things, the nature and circumstances of the offence; the offender’s character, his antecedents and age; the offender’s current circumstances and prospects of rehabilitation; and, the likelihood of re offending.

32. While an offender is not to be punished because of previous criminal convictions, such history is relevant to show whether the offence before the Court is uncharacteristic or whether the offender has manifested in his commission of the instant offence a continuing attitude of disobedience.

33. The offender has a criminal history from Victoria, Queensland and New South Wales. It was conceded his record disentitles him to leniency. Most of the offences are drug related. There are some offences of breaking and entering. There is one offence from 2011 for using a false document. The criminal history for Queensland is similar, but shorter. There was a fraud offence there in 2013. The Victorian history is shorter still and there is a case of obtaining property by deception in 2011.

34. It is submitted on the offender’s behalf that in light of his demonstrated rehabilitation, the role of specific deterrence has a reduced role to play. I will deal with the rehabilitation issue shortly, but I do not accept that submission. The offender’s substantial criminal history indicates a particular need for personal deterrence, particularly noting his record already has a number of dishonesty type offences on it.

35. General deterrence is a fundamental sentencing consideration: s 16A(2)(JA). Fraud on the Commonwealth revenue is often easy to commit, often difficult to detect and often, if not always, comes at a cost to the community. The Victorian case of Director of Public Prosecutions (Commonwealth) v Gregory (2011) 34 VR 1 states that general deterrence is often given particular weight in sentencing for offences committed for financial gain and characterised by premeditation and calculation of risk because the perpetrators of such offences

“are likely to be rational profit-seeking individuals who can weigh the benefits of committing a crime against the cost of being caught and punished.”

36. General deterrence will often be given less weight in the case of an offender suffering mental illness. I will deal with the offender’s mental health issue shortly, but for present purposes I find that those issues reduce the role of general deterrence to a limited degree, but not completely.

37. I will also deal with the prospects of rehabilitation and likelihood of re offending at s 16A(2)(n) and the offender’s character, antecedents, age, means and physical and mental condition. These topics deal with the offender’s subjective case and, obviously, his prospects of rehabilitation and re-offending.

38. The sentencing assessment report which was provided to the Court was of significant assistance. I have already dealt with it in the sense that it refers to the offender’s remorse. It also set out some other useful information which the Court takes into account. It states that the offender now lives in Balmain in stable accommodation. He maintains close and supportive relationships with his parents, his siblings and their children. He has two children himself who live in Queensland and he speaks to them daily and visits monthly. He is self-employed, working as a plumber, and he has done that for two years. He holds trade qualifications in plumbing and machine operation. His work provides structure and stability and it is considered by Community Corrections as a protective factor.

39. The SAR refers to the offender’s illicit substance use. He began using illicit substances when he was 18 years of age. At the time of the offence, he stated that he had a daily heroin habit of $1,500 a day. He states that his offending was primarily to fund drug use. Importantly, since January 2023, the offender states that he has been abstinent from illicit drugs and is engaged in the Buvidal program. There is some support for this in his letter to the Court, where he refers to Family Court orders which require him to abstain from illicit drugs and to undergo urinalysis.

40. He ceased employment before these offences occurred and this, according to the Community Corrections author who prepared the report, led to some financial strain and the ultimate criminal behaviour. It states that during the time of the offences he was under emotional distress due to divorce and child custody issues. It states he was estranged from his family due to substance use and criminal activity. He acknowledged to the author the harm caused by his actions. As I have said, he regretted exploiting public finances and misusing real world identities.

41. The offender told the author that he was willing to engage in psychological and court-directed interventions. Importantly, the report states that he is suitable and willing to undertake community service work. It also states that past supervision by Community Corrections was satisfactory and that the offender had good engagement with them. His risk assessment was rated as being medium to low risk. A supervision plan was also set out that stated that Community Corrections would monitor him for any increased risk. It stated that no face-to-face reporting would be required unless the risk escalated. I just pause to observe that this is a very positive conclusion to be set out in the sentencing assessment report, as it indicates the report author believes that the offender’s drug taking is now under control.

42. He was assessed as suitable to do community service work for up to 21 hours per month.

43. The offender also tendered ten other documents before the Court, which are set out in exhibit 2. They are the letter of apology that I have already referred to; a psychological assessment report dated 3 June 2025 by psychologist Mr Sam Albassit. There is a psychological assessment from forensic psychologist Ms Kris North dated 16 June 2021. There is an affidavit sworn by the offender’s sister, Ms Rayan Kadadi, sworn 3 June 2025 and an affidavit by Ms Taylor Shephard dated the same day. Ms Shephard is the offender’s partner. There is a character reference from Ms Bridget Holroyd and a character reference from Mr Bryce Jackwitz. There are documents pertaining to ABE Civil and Plumbing Pty Ltd, as well as bank accounts associated with that business. There were medical documents pertaining to Ayman Kadadi, the offender, as well as documents relating to his parents.

44. I have already addressed the letter of remorse.

45. With respect to the two character references prepared on his behalf, the letters spoke very positively about how he was known by the authors and how the authors knew him to be a heroin user. The authors of those letters stated that he has taken positive steps to turn his life around and to take responsibility for his life and his new business. The letter from Ms Holroyd refers to the offender’s mother being unwell and how the offender helps her and helps others. The letters are very positive in their conclusions about the offender’s future life, and, although they do not use the phrase, they could be summarised as saying he has, in effect, “turned the corner.”

46. Also provided to the Court were his company’s bank records. They show the business is trading and that it is real and has significant contracts. There were documents also provided to the Court that show he has produced clean urine tests when tested for illicit substances. There was a patient health summary for the offender’s mother and father, although no submission was made about them. All of this material was very positive.

47. The affidavit from the offender’s current partner, Ms Shephard, contains several hearsay statements from the offender setting out what she describes as his “complex history of childhood trauma and institutional trauma”. She states that he has turned his life around since his release from custody and his family relationships have improved, particularly with his children. I accept that evidence. She speaks about his business and expresses the view that reincarceration would unravel the progress he has made and cause significant harm to her family and his family as well. She states that it would result in the closure of his business, financial hardship for those that were employed there and serious disruption to the relationships he has built with his children and also his rehabilitation journey. Ms Shephard refers to the positive role the offender plays not only in her life, but her children’s life. She speaks of their plans to get married.

48. There was also an affidavit from the offender’s sister. The affidavit referred to her close relationship with the offender and the fact that he has been in and out of the legal system since 2005. She states that her family grew up in Housing Commission in Balmain. She describes it as being stable accommodation in a loving family, but in bad surroundings. She recalls the offender being an illicit drug user from a young age. This appears to be an anomaly in her family, as no one else in the family was an illicit drug user. I understand from the affidavit that her father was a very hard worker but was not well paid and that money in the family was always tight. The offender was someone who was often not home and spent his time mixing with, what his sister politely calls, a different circle of friends.

49. The affidavit states that in 2006 the offender moved to Brisbane in order to start a new life. He met his wife while he was in Queensland and had a son and later a daughter. In 2009 he commenced the methadone program in order to assist with drug rehabilitation and in order to get off the heroin. He began a business while he was in Brisbane. He went to gaol for various offences and has been on and off drugs for most of his adult life.

50. The affidavit states that the offender’s parents have deteriorating health. It also refers to Family Court orders from 2022, which allow the offender to have contact with his children on certain conditions. She believes the offender is now focused on repairing his relationship with the children and making up for lost time. In his sister’s view, the offender has transformed his life through recovery and resilience and is now working to pay back the state for his actions. I accept that evidence.

51. I will now come to the two psychologists reports that have been tendered.

52. Unusually, the Crown requested that both psychologists be available for cross-examination. I commend the Crown for taking this course. Too often in New South Wales, psychologist’s reports, sometimes of dubious merit, are simply accepted by the Crown without scrutiny or criticism, and the sentencing judge sometimes has little choice but to accept the unchallenged conclusions. My reference to the respective psychologist’s evidence is based upon my notes and not a transcript.

53. In this case, the Crown, through his careful cross-examination of both psychological experts, demonstrated to the Court that the two reports, from Ms Kris North and Mr Sam Albassit, do not sit comfortably together. There was a significant contradiction which drew into question the reliability of the conclusion the offender sought to rely upon in Mr Albassit’s report and which he seeks to rely upon to lower the offender’s moral culpability.

54. In summary, Ms North is a forensic psychologist and her report of 16 June 2021 was produced in preparation for the offender being sentenced for supplying an indictable quantity of a prohibited drug and directing a criminal group during 2021. She had no material before her other than an affidavit from the offender’s sister - I note it was a different sister that time; the facts for sentence; and the offender’s criminal history.

55. As she accepted during her cross examination, the report relied largely on what the offender told her during a conference that she had with him during June 2021. It will be observed that that date places it in the middle of the charge period for sequence 1 and shortly before sequence 67.

56. In her report, Ms North states that she was told by the offender that he had residual issues relating to attention and hyperactivity disorder he had been diagnosed with. However, he felt that he had learned to manage his symptoms through keeping himself busy and being distracted through work. That was at para 10. He identified heroin as being his primary drug of concern and the offender told her his heroin use had contributed to the offending behaviour for which he was then being sentenced. That was at paras 12 and 18. At para 24 of her report, Ms North reports that the offender was on buprenorphine maintenance therapy and engaged in psychological therapy and Giving Back Australia outpatient program. He was attending drug and alcohol counselling. Significantly, Ms North writes:

“He felt he had made a great deal of progress since being released on bail, including having maintained abstinence from heroin and starting to address his underlying mental health issues.”

57. The custodial records demonstrate he was released on bail on 17 December 2019. Ms North’s diagnoses were that the offender had attention deficit hyperactivity disorder, which was diagnosed during adolescence; he has a major depressive disorder, which was recurrent with moderate with anxious distress; he had an opioid use disorder, which she describes as being moderate, but currently on maintenance therapy.

58. The offender told Ms North that he had used drugs in the past to numb emotional pain, especially to do with his divorce and separation from his children. He stated that he had a long history of heroin use starting at 18, and had multiple relapses and treatments. He said that his depression and anxiety were exacerbated by life events and had contributed to his behaviour. He told her that these offences, being the offences for which he was sentenced in 2021, occurred during a period of daily heroin use. He was paid in heroin, not money, and did not consider the consequences.

59. He expressed remorse and reflected on the impact of his actions on his family. He told Ms North that he was born in Lebanon and migrated to Australia at the age of 2. He had close relationships with his family and referred to his mother’s recent diagnosis of a brain tumour and his father’s cardiac issues. He stated that he had been bullied in school as a result of his ethnicity and that he was diagnosed with ADHD in Year 7. He left school in Year 10 and ultimately completed a TAFE course. He had worked as a plumber and run a renovation business.

60. Ms North’s evidence to the Court was that except for a test for depression, she did not rely on any psychometric testing to reach her conclusions and relied on the offender’s self-reporting. She accepted that if she was told things which were wrong or exaggerated, that could impact and would impact on her conclusions.

61. She was cross-examined by the Crown and accepted that according to her report, as of June 2021, the offender’s ADHD did not present as much of a problem as it may have done when he was younger. Ms North stated that while ADHD can contribute to poor impulse control, she did not consider it played a role in this offending.

62. I found her to be an honest and credible witness, who did not seek to embellish any aspect of her report.

63. Mr Sam Albassit, psychologist, gave evidence. His report of 3 June 2025 was based on being provided with Ms North’s report, the summary of agreed facts in this case and the offender’s Queensland criminal history. There was no explanation as to why there was no reference to the New South Wales or Victorian criminal history.

64. He met with the offender on 22 May 2025. The history is broadly consistent with what he said to Ms North in terms of background; where he came from; where he was raised; his diagnosis with ADHD; his schooling; his move to Queensland; the fact that he was bullied for his ethnicity; the fact that he had difficulties at school and struggled academically.

65. The report also, consistently with Ms North’s report, talks about the offender’s marriage, the failure of the marriage, his two children and his drug use, and the connection between the drug use and his incarceration. The report says, consistently with Ms North, that the offender has ADHD, a depressive disorder and a substance use disorder. The report refers to the offender attending multiple rehabilitation programs, including Odyssey House and Giving Back Australia.

66. Since released from prison in 2023, according to Mr Albassit, the offender has remained drug free for a total of 28 months.

67. The report referred to the offender’s successful civil plumbing business and his employment of multiple teams doing good work with major companies.

68. Mr Albassit diagnoses the offender with ADHD, depression and anxiety and a substance use disorder. He concludes that the offender’s criminality is linked to the untreated mental health conditions and emotional instability. He states at para 21 that there appears to be a link between his mental health impairments and the offending. Mr Albassit states this at paras 30, 31, 32, 33 and 34 of his report:

“At the time of the offences, Mr Kadadi was experiencing significant symptomatology pertaining to his mental health conditions which markedly impaired his reasoning and his judgment. Mr Kadadi’s symptomatology of ADHD and his current substance use significantly impaired his judgment at the time of the offending.

ADHD is associated with difficulties and attention regulation, impulsivity and executive dysfunction, which hindered his ability to plan, assess risk and consider consequences. These cognitive and behavioural challenges made it harder for Mr Kadadi to regulate his actions or fully appreciate the legal and moral implications of his behaviour.

The use of illicit substances and prescription medications further impaired his cognitive functions, reduced inhibitions and exacerbated impulsivity, amplifying the effects of the ADHD. Coupled, these factors likely contributed to poor decision making and increased vulnerability to engaging in fraudulent activities during a period of emotional and personal instability.

There appears to be a correlation between his mental health issues, substance use and criminal behaviour. Individuals experiencing mental health conditions such as ADHD, depression or anxiety may turn to substances as a maladaptive coping mechanism which can further impair cognitive and emotional regulation. Substance use, in turn, exacerbated his existing mental health symptoms and increased the likelihood of engaging in high-risk or offending behaviour. This cycle is particularly evident in Mr Kadadi, with recurring disorders where the relationship between mental illness and substance dependence created a risk for offending.

Mr Kadadi had the presence of untreated and poorly managed ADHD, combined with addiction and significant life stresses, created a context in which fraudulent behaviour occurred, reflecting a complex interplay of psychological, environmental and behavioural factors. Mr Kadadi had poor impulse control, and has struggled to manage his moods and behaviours. His emotional disturbance was so considerably heightened that his ability to appreciate the consequences of his actions at the time were diminished.”

69. I stress that Mr Albassit is talking about how the offender presented during 2021. Mr Kadadi, according to the report, is remorseful and acknowledges the wrongfulness of his actions. The reports set out a detailed treatment plan.

70. During cross-examination, Mr Albassit was taken to those paragraphs that I have just read out. He explained that he relied on Ms North’s report, his own observations, and a questionnaire completed by the offender to reach those conclusions. It was pointed out to him by the Crown, that Ms North’s report was prepared during the actual period of offending and contained statements where the offender had downplayed any ongoing difficulties with ADHD. It was also pointed out to Mr Albassit that far from being under the influence of illicit substances, the offender told Ms North he was abstaining from heroin and there was no reference to any other drug usage at that time.

71. Mr Albassit responded to these contradictions in two ways. Firstly, he sought to draw a distinction between the offender telling Ms North that he was abstinent from heroin and his comments that the offender was influenced by a combination of prescription medications and a more generic reference to “illicit substances”. The only problem with that explanation is that while the offender said to both psychologists he had used other drugs in his youth, the only illicit substance the offender ever refers to being addicted to was heroin – the drug he told Ms North he was no longer using.

72. The second explanation Mr Albassit offered to explain why he felt the offending conduct was in the context of the offender’s impaired reasoning and judgment, was that someone’s presentation can vary from day-to-day and may be affected by daily drug usage. I accept that evidence, but it does not explain why Ms North reached the conclusion she did. The fact that the Ms North met with the offender while he was committing these offences and she made no observation of any of the negative issues raised by Mr Albassit is telling. As the Crown submitted, and I accept, the offender appears to be lying to one of the psychologists.

73. When asked about his conclusions regarding a person with ADHD being impulsive and how that had a role in a deliberate and calculated fraud which was sustained over many months, Mr Albassit said that the ADHD needed to be considered in the context of illicit drug use. When reminded that according to the offender’s statements to Ms North he was abstinent from heroin, Mr Albassit was reluctant to accept this and he suggested that the offender may have been simply downplaying it to Ms North, which I accept is a possibility.

74. It was put to Mr Albassit by the Crown that relying on the self-reporting of an offender is an unsatisfactory basis to prepare a report. My observation of Mr Albassit was that he became quite defensive at this point and said words to the effect of, “people always raise this with me”. He explained that while self reporting plays a significant role, he would also assess that against his own observations of the person’s life and how that person had presented. For example, were they working and how were they dressed. His report refers to applying the DASS-21, which is a test for depression, but that relates to how the person has been feeling over the previous week. Mr Albassit also used the DSM-5 structured interview technique, but that also relies on self-reporting.

75. My impression of Mr Albassit’s evidence is that rather than concede that the offender had presented differently to him to the way he presented to Ms North, and that some of the statements he made may not be true, Mr Albassit instead sought to minimise the significance of the differences. He doubled down on his conclusions regarding the link between the offender’s mental health, drug use and offences, and sought to reinterpret what he had meant by illicit substances. Further, despite his conclusions, Mr Albassit could not satisfactorily explain why someone with ADHD would not appreciate the legal and moral consequences of their actions. As an aside, he noted that 30 percent of the population is estimated to have ADHD.

76. For all those reasons, I formed an unfavourable view of Mr Albassit’s evidence and his report and that has consequences when I assess the reduction in moral culpability contended for by the offender.

77. The question of a reduction in moral culpability is a reduction from the moral culpability that would otherwise correspond to the gravity of the offending. As set out in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, where the state of a person’s mental health contributes to the commission of the offence, the moral culpability may be reduced. The need to denounce the crime may be reduced as well. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence, resulting in a reduction in the sentence which would otherwise have been imposed. It may mean that a custodial sentence weighs more heavily on that person. It may reduce or eliminate the significance of specific deterrence.

78. Conversely, it may be that because of a person’s mental illness, they present more of a danger to the community. In those circumstances, specific deterrence may result in an increased sentence.

79. There is no doubt that the offender’s mental health difficulties identified in the reports does have a role to play in the sentencing exercise. I accept that general deterrence is reduced to some degree because of them. I accept it would mean a custodial sentence is more harshly felt by someone like Mr Kadadi. I accept it also has a role in reducing specific deterrence to some degree, but I do not accept that it reduces his moral culpability in any significant way.

80. It needs to be observed that all of those principles in De La Rosa are not stated as an absolute. What is recognised is their potential effect in any given case. Too often, the mere fact of mental illness is advanced to this Court as necessarily calling for a more lenient sentence. There is, however, no such presumption. It remains necessary for the sentencing Court to examine the relevant facts in order to determine in that particular case whether the mental condition has the consequences contended for.

81. As the offender did not give evidence, the apparent discrepancies in the two psychologists’ reports could not be put to him. As I say, I accept he has the multiple diagnoses contended for by the psychologists and it does play a role in his subjective case. It has slightly reduced the role of general deterrence, but I reject the conclusion of Mr Albassit that the ADHD, either by itself or in combination with illicit drug use, contributed to the commission of the offences in a material way. Mr Albassit’s conclusion regarding the offender’s state of mind during 2021 - four years before he met him - is based on the offender’s self-reporting. It is at odds with Ms North, who conferenced him during the time of the offending. It clearly calls into question how honest the offender was with one or both of the psychologists.

82. The offender submitted that his social circumstances were akin to a background of deprivation and social disadvantage. It is well established that the disadvantaged background of an offender may mitigate the sentence that would otherwise be appropriate. Yehia J in NK v The King (2025) NSWCCA 73 stated that the correct application of the Bugmy principles involves the following considerations: firstly, a sentencing judge must assess whether an offender’s background reduces their moral blameworthiness. This assessment is made by reference to matters subjective to the offender. An offender’s moral blameworthiness cannot be assessed by reference to factors unrelated to the offender. Secondly, if moral culpability is reduced, a sentencing judge is required to consider the impact of that reduction on the sentence. For instance, a reduced moral culpability may mean that the extent to which the conduct is denounced is less than in the case of where an offender has a “normal” or “advantaged” background. On the other hand, a reduction in moral culpability may be offset by the weight afforded general deterrence and the protection of the community. Even where the reduction in moral culpability is offset wholly or in part by virtue of the weight to be afforded to one or more purposes of sentencing, an offender’s background of disadvantage must be given full weight.

83. During the sentence hearing I was sceptical about whether there had been relevant disadvantage or a dysfunctional childhood experienced by the offender.

84. The affidavit from the offender’s sister and the psychologists’ reports refer to him growing up in housing commission in a family with limited finances and being bullied at school for being Lebanese. He had difficulties making friends and he would get involved in fights. His sister, in her affidavit, observed that there was violence and alcohol abuse in the neighbourhood, but she describes a happy and stable family. The affidavit states the offender has been a long-term drug user, although that is out of character for the rest of the family. My conclusion from Ms Kadadi’s affidavit is that her brother, the offender, made poor lifestyle choices when he was young, including who he chose to mix with and he continued to mix with people with a criminal disposition. He has been exposed to illicit drugs outside the family home and I do accept that this has played a role in exposing him to illicit drug usage at a young age.

85. The offender provided the Court with the recent case of O’Hanlon v The King (2025) NSWCCA 118, where there was a reduction in moral culpability in a fraud case because of issues of childhood deprivation. I should say that the childhood deprivation in O’Hanlon is significantly different from that relied upon in this case. The conclusions in O’Hanlon v The King can be contrasted in some respects with the comment made by Dhanji J in Mitchell v The Queen (2021) NSWCCA 306 at para 78, where his Honour held - omitting references:

“The offences in question were the result of deliberate decisions made by the applicant with which he persisted. They cannot be described as an inability to control his impulses … It may be that the applicant had fewer emotional resources to guide his decisions and, as such, his background could be considered as affording some, although limited, mitigation. The decision making here, however, involves significant premeditation and planning and was, at the very least, different from that which pertained in Bugmy and, albeit to a lesser degree, in Millwood. This does not mean the applicant’s experiences during childhood were not relevant. Nor does the fact that, as discussed above, the applicant was at certain times in his life able to function successfully as a law-abiding member of the community. The applicant’s background remained relevant in understanding the individual who stood to be sentenced and the course of his life that had brought him to that point. The weight to be given to the applicant’s childhood was necessarily impacted by the course of his life since childhood and the nature of the offences committed.”

86. In Hoskins v The Queen (2021) NSWCCA 169 at para 57, the Court stated:

“Although the High Court used the term ‘profound childhood deprivation’ when referring to its enduring effects, what was said to require consideration was an offender’s deprived background. There is no magic in the word ‘profound’ and it is not necessary to characterise an offender’s childhood as one of profound deprivation before the principle is engaged. The principle is that social disadvantage may reduce an offender’s moral culpability, especially where the offending is in the nature of impulsive or learned responses to situations arising from the circumstances of social disadvantage. Thus, the Bugmy principles may not operate to reduce moral culpability in a case where careful planning and premeditation is involved, such as cultivation and drug supply matters. However, engagement of the principles does not depend on the establishment of a causative link between the circumstances of deprivation and the offending.”

87. Although those two cases are in the context of drug supply, the principle must equally apply to fraud.

88. I accept Mr Kadadi had significant social disadvantage because of the exposure to illicit substances, but I find that it only reduces his moral blameworthiness to a limited degree, taking into account the planning and premeditation of conduct involved in calculated fraud over six months, which included the deliberate lodging of 70 false claims.

89. According to Mr Albassit’s report, the offender was using illicit substances at the time of the offending and suffered a substance abuse disorder but I am sceptical about whether that is the case, given Ms North’s report.

90. In the authority of The Queen v Henry (1999) 46 NSWLR 346 Spigelman CJ emphasised the well-established principle that drug addiction does not of itself provide a mitigating circumstance and does not reduce an offender’s moral culpability. His Honour recognised that there were cases where an offender may not have made a free choice in turning to drugs. This included cases where an offender became addicted to drugs because of medical treatment or at a very young age.

91. I accept here that the offender was involved with illicit drug usage from a young age, but not necessarily during 2021. This is a very important consideration in his subjective case and it serves as an important counterpoint to how his life is now being lived, where he is complying with Family Court orders, drug free and returning clean urine tests. While it is certainly unclear whether he was in fact using drugs during the charge period, I do accept that he has been a long-term drug user.

92. I also take into account in the offender’s favour the fact that there has been uncertain suspense created by the period of three years between the offending in 2021 and when he was charged, which was in March 2024. No explanation for the delay was forthcoming, but it is probably inevitable, given the nature of the offences. The understandable anxiety felt by the offender about delays to which he did not contribute is taken into account in his favour.

93. Importantly, that delay has certainly given him the opportunity to become abstinent from drugs, start a business and generally rehabilitate himself whilst in the community, and that is to be applauded.

94. The Crown helpfully provided a series of cases and a table of comparative cases, all of which I have considered, as well as the JIRS statistics. I note the JIRS statistics demonstrate that for offenders who have pleaded guilty to an offence of this nature, 32.7 percent receive an intensive corrections order.

95. I had asked the parties to consider whether a fine may be appropriate as part of the sentencing outcome.

96. The offender, through his counsel, Mr Lange, submitted that a fine could be set and that he had some capacity to pay. I was told the amount of money that the offender was earning each month and some of the expenses that he incurred. The Crown submitted that a fine by itself would be insufficient.

97. Section 17 of the Crimes Act is satisfied. As I indicated during the hearing, whether the offender received a custodial sentence to be served in custody or in the community is one that in my view is finely balanced. I do not find that either of these two offences or in combination are of such a level of severity that they warrant a combined custodial sentence of more than three years, even in circumstances where I do not find that the offender has a particularly strong subjective case, and I do not find that his moral culpability has been greatly reduced.

98. As picked up by s 20AB(1) of the Crimes Act, an intensive corrections order can be imposed for a Commonwealth offence. When considering whether to make an order of this type, the sentencing Court must consider s 16A of the Crimes Act, as I have just done in detail. In accordance with Vamadevan v The King (2024) NSWCCA 223 at [70], s 66 of the Crimes (Sentencing Procedure) Act does not apply to the discretion to impose an intensive corrections order for a Commonwealth offence when sentenced in New South Wales.

99. Tipping the balance towards serving a sentence in the community via an intensive corrections order, there are five matters which I have focused on.

100. Firstly, I accept that Mr Kadadi is now drug free. He is working and he is running his own business. I am concerned that if he returns to custody, these significant improvements in his life may be wasted. The community, his family and the offender himself will benefit from remaining clean of drugs and working and running a business where he employs other people. This is a good thing.

101. Secondly, I am going to make a reparation order. That order must be paid and if he is in gaol that will simply not happen, at least not in the short term.

102. Thirdly, he does have to repay the community in some way for his criminality, and that can be achieved not only through paying back the money he improperly obtained from the Commonwealth, but through the payment of a fine and through the community service, which I am going to order.

103. Fourthly, the ICO will be long and contains orders which he must comply with. A failure to do so is likely to lead to further punishment. This will certainly test his resolve to remain drug free.

104. Fifthly, as I have indicated, I am going to impose a modest fine. This is in order to act as a further deterrence, not only to the offender and others, but by having him in the community, this fine will be paid.

105. I am satisfied that only a sentence which involves a custodial term is appropriate, but, in my view, this can be done via an intensive corrections order. I accept that this incorporates a degree of leniency, but I have come to the conclusion that an ICO with a number of conditions would in combination satisfy the sentencing principles calling for the adequacy of a punishment, the necessity to ensure the sentence reflects the community’s loss, and provides for both general and specific deterrence in the manners I have outlined.

106. With respect to sequence 1, after the discount of 25 percent, I nominate an indicative sentence of two years and four months, noting the authority of Mustafa v The Queen (2021) NSWCCA 164 at para 102, which states that an ICO can be imposed regardless of the length of an indicative sentence providing the aggregate does not exceed three years.

107. With respect to sequence 67, after the 25% discount, I give an indicative term of one year.

108. I intend to impose an aggregate sentence of two years and nine months to be served by way of an intensive corrections order under s 7 of the Crimes (Sentencing Procedure) Act.

109. Mr Kadadi, I am going to make the following orders so can you please stand up for me.

ORDERS

110. Firstly, you are convicted of the two offences before the Court.

111. You are sentenced to a term of imprisonment of two years and nine months to be served by way of an intensive corrections order.

112. The sentence will commence today, 18 August 2025. It will expire on 17 May 2028.

113. Attaching to sequence 1 is a fine of $20,000. Attaching to sequence 67 is a fine of $7,500.

114. I am going to order that you repay the Commonwealth the amount of $88,500 by way of a reparation order.

115. In terms of the orders which are to attach to the intensive corrections order, they are as follows:

116. You must not commit any other offence;

117. You must submit to the supervision and guidance of the Community Corrections Service for as long as that service deems necessary or desirable, but not exceeding the term of the order. You are to obey all reasonable directions of that service, including any direction or instruction to undertake examination, assessment, therapy, treatment or counselling whilst under their supervision;

118. You must perform 200 hours of community service work;

119. You must refrain from using illicit substances and undergo monthly urinalysis testing;

120. You must abstain from any prohibited or restricted drugs or substances, except for medication lawfully prescribed to you by a registered medical practitioner.

121. Mr Kadadi, please adhere to all of those orders. If you breach any of them, the Parole Board will become involved and there is a likelihood that you will be in significant trouble, possibly custody.

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Amendments

05 November 2025

Minor amendment