Margaret Kosseifi and Danyal Sousan have each pleaded guilty to a number of offences arising from their joint participation in a not insubstantial fraud committed against the State of NSW. I will deal with the specific detail of the various offences shortly.
In April 2020 the NSW Government introduced a grants scheme whereby small businesses which were struggling with the government-mandated COVID-19 shutdown were able to receive payment grants pursuant to varying eligibility criteria. The ramifications of the COVID-19 pandemic and government-enforced restrictions enacted in response to the pandemic also led to the introduction of the COVID-19 Test and Isolate Support Payment (TIP) which was a one-off payment of $320 available for individuals who were required to isolate whilst awaiting their COVID-19 test results.
The provision of these grants and payments by the Government was, out of necessity, required to be processed expeditiously. It was intended to, and did provide, some level of economic relief to persons and small businesses who were suffering from serious cash-flow deficiencies as a consequence of the government-enforced shutdown of movement within the community.
However, the grants and payments scheme also provided an irresistible incentive for those of a criminal bent to pursue fraudulent claims. A strike force was set up by the NSW Police in November 2021 to investigate persons involved in defrauding Service NSW by submitting grant applications and TIP applications for which they did not meet the eligibility criteria and in which they had provided false details.
Margaret Kosseifi and Danyal Sousan had lived together for approximately 10 years. They both had prior involvement with the criminal justice system, the detail of which I will set out later in these Remarks. During a period of approximately five weeks between 4 October 2021 and 9 November 2021, pursuant to a joint criminal enterprise between themselves and others, they made 103 applications to Service NSW with respect to both small business grants and TIP payments to which they were not entitled.
The applications involved the provision of varying details, including addresses, emails, mobile phone numbers, ABN numbers, names of purported employers or businesses, and bank account details. Some applications utilised the details of identified co-offenders, while others utilised the identification details and particulars of living persons who were neither aware of, nor involved in, the making of the applications.
The fraudulent applications came to the attention of Police in a somewhat unusual fashion. A second-hand laptop computer was discovered to have previously been used to log into a G-mail account. On accessing the email account it was found to contain various emails regarding the establishment of bank accounts and Service NSW accounts, together with emails which had attachments of images of various identification cards in different names. There were also images of persons holding up fake identification documents.
On 11 November 2021 the laptop was handed in to police. Access to the email account, which had been utilised by the offenders and others, led the police to identify a number of different devices which had also been used to access the email address. It also provided links to telephone numbers and other identifying features which had been utilised in making some of the fraudulent applications to Service NSW. In due course, the police investigation led to the identification of the two offenders now before the court.
Bank accounts into which various payments from Service NSW had been made were able to be identified. In February 2022, Police conducted surveillance of the offender Sousan while he attended a number of banks from which he withdrew money. This surveillance, in turn, revealed additional bank accounts which had been set up in false names.
On 21 June 2022, Police executed a search warrant at the apartment in Bankstown where the two offenders resided. Amongst other items which were located were 11 mobile phones, an iPad, five modems, eight Sim cards, three laptop computers, six USBs, 13 credit cards in various names, and written notes containing email addresses, passwords, and other identification details.
Various of the USBs which had been located during the search contained multiple photographs of documents revealing the detail of victim identifications which had previously been utilised in the frauds or were available for future use. These included names, dates of birth, addresses, driver licence numbers, emails and email passwords, Service NSW passwords, bank account details, Medicare card details and passport numbers. One of the laptops which was seized contained the detail of more than 700 individual victim identifications and the particulars relating to those persons.
Police subsequently ascertained that the ability to utilise, in effect, "stolen identities", had been facilitated in some cases by the acquisition of items such as a Passport and a Driver Licence which had apparently gone missing from the post and never received by the legitimate owner.
Messages recorded on some of the mobile phones and also in email communications demonstrated directions being given by Kosseifi to at least one other co-offender in the joint criminal enterprise and also demonstrated the participation by Sousan in what was, by definition, a criminal group.
Police also located a number of small quantities of prohibited drugs during the search of the premises. These were comparatively small quantities of heroin, and separately, a small quantity of methylamphetamine.
Both offenders were arrested and charged on 22 June 2022. They thereafter were refused bail and have remained in custody since that time.
Recorded telephone conversations from their custodial institutions between each of the offenders and persons outside the gaol were subsequently obtained by Police pursuant to a warrant. It suffices for present purposes to observe that the detail of those conversations clearly reveal a consciousness of guilt, and admissions of guilt by each of the respective offenders.
[2]
THE CHARGED OFFENCES
There were a total of 20 successful Micro-Business Support Grant applications which yielded total payments of $237,000 being fraudulently obtained. In addition, there were 24 successful Test and Isolate Support Payment applications. Each resulted in a payment of $320 yielding a total of $7,680.
The total funds paid by Service NSW with respect to the successful fraudulent applications was $244,680.
Each of those 44 successful applications was separately charged as a substantive offence of dishonestly causing a financial disadvantage by deception contrary to the provisions of section 192E(1)(b) of the Crimes Act 1900. Such an offence carries a maximum penalty of 10 years imprisonment.
There were an additional 59 attempted, but unsuccessful, fraudulent applications. 28 of these related to applications for $12,000 Micro-Business Support Grants; one related to an application for a $6,240 Job Saver Program Grant; and there were 30 unsuccessful $320 TIP applications.
While each of this group of offences were separately charged, it needs to be borne in mind that they have not been charged as attempts to cause a financial disadvantage by deception, notwithstanding the Agreed Facts describing the criminal acts as 'attempts'. Had they been charged as attempts they would attract the same maximum penalty as the completed substantive offences, namely 10 years imprisonment.
However, each of the unsuccessful applications has been charged pursuant to the provisions of section 192G(b) of the Crimes Act 1900 and, accordingly, carries a lesser maximum, namely 5 years imprisonment. The elements of an offence under section 192G(b) focus on the dishonest publication of a statement which is false in a material particular, whether or not in writing, with the intention of obtaining a financial advantage or causing a financial disadvantage.
The distinction between the maximum penalties as a consequence of charging the publication of a false statement with intent, rather than the attempt to cause a financial disadvantage, will need to be borne in mind when determining an appropriate sentence for those matters: see The Queen v De Simoni (1981) 147 CLR 383.
The first 103 counts in the respective indictments presented against each offender relate to the individual successful and unsuccessful applications.
The indictment presented against Margaret Kosseifi included a further eight counts.
Count 104 alleged dealing with the proceeds of crime, namely $149,120 between 3 October 2021 and 19 November 2021. This was, if I might so observe, a sensibly "rolled-up" charge relating to the total payments made into bank accounts belonging to, or connected with, Kosseifi.
The offence of dealing with the proceeds of crime, knowing that it is the proceeds of crime, arises pursuant to section 193B(2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment.
Counts 105 to 109 inclusive each related to the possession and use of identification information, specifically credit or debit cards in the names of identified persons. These were amongst the identification documents which had been located during the execution of the search warrant at the offender's home. A separate count was preferred with respect to each of five identified persons whose credit or debit cards had been utilised or dealt with in the fraud which had been committed against Service NSW.
The offence of dealing in identification information with the intention of committing an indictable offence constitutes an offence against section 192J of the Crimes Act 1900 and carries a maximum penalty of 10 years imprisonment.
Count 110 in the Kosseifi indictment was effectively a "rolled-up" count of possessing identification information, namely in excess of 700 individual personal identifications, with the intention of committing the defrauding against Service NSW. Such an offence contravenes the provisions of section 192K of the Crimes Act 1900 and carries a maximum penalty of 7 years imprisonment. The last count in the Kosseifi indictment, Count 111, related to her participation in a criminal group and giving directions to at least one other member of that group with respect to the ongoing frauds which were being carried out against Service NSW.
An offence of participating in a criminal group whose activities are organised and ongoing by directing the activities of the group, knowing that such participation contributes to the occurrence of criminal activity, contravenes section 93T (4A) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment.
The indictment which was separately presented against Danyal Sousan contained an additional 13 counts.
Six counts (Counts 104 to 109 inclusive) each charged a separate offence of dealing with the proceeds of crime. Four of the counts related to individual transactions whereby money was withdrawn from bank accounts in a specific identified amount. These were Count 104 ($10,500); Count 105 ($320); Count 108 ($1,000), and Count 109 ($2,000). Counts 106 and 107 were pleaded as having occurred between identified dates, and were "rolled-up" counts relating to separate amounts which each respectively came to a total of $12,000.
As I have already indicated with Kosseifi, the offence of dealing with the proceeds of crime, knowing that it is the proceeds of crime, arises pursuant to section 193B (2) of the Crimes Act 1900 and carries a maximum penalty of 15 years imprisonment.
Counts 110 to 114 inclusive in the Sousan indictment correlated with Counts 105 to 109 inclusive in the Kosseifi indictment. Each of these counts related to the possession and use of identification information, namely credit or debit cards in the names of identified persons. These had been located during the execution of the search warrant at the offender's home and had been used during the commission of the frauds pursuant to the joint criminal enterprise. As noted earlier, these offences of dealing in identification information with the intention of committing an offence constituted offences against section 192J of the Crimes Act 1900 and carried maximum penalties of 10 years imprisonment.
Count 115 in the Sousan indictment correlated with count 110 in the Kosseifi indictment. It was a "rolled-up" count of possessing identification information, particularised as more than 700 individual personal identifications, with the intention of committing the ongoing frauds against Service NSW. The contravention of section 192K of the Crimes Act 1900 carries a maximum penalty of 7 years imprisonment.
The final count in the Sousan indictment, Count 116, related to his participation in the criminal group. Unlike Kosseifi, whose charge related to giving directions to others in the criminal group, the count against Sousan was confined to his own participation in the criminal group. The charge against him arose pursuant to section 93T(1) of the Crimes Act 1900 and carries a lesser maximum penalty, namely 5 years imprisonment.
[3]
THE SUBSTANTIVE OFFENCES BEFORE THE COURT AND MULTIPLE FORMS 1
I am constrained to observe that the manner of charging and pleading of the multiple offences in the two indictments has led to a fundamentally unnecessary complication for the Court dealing with the matter. Just why each individual transaction by way of an application for a grant or payment was not only originally charged separately, but then subsequently placed in an indictment as a separate count in each instance, is a question which the prosecution should reflect upon.
The ability to charge "rolled-up" counts, particularly in an ongoing fraud, is one which has the capacity to greatly simplify the task of a sentencing Court. This is particularly so when the matters are being dealt with pursuant to pleas of guilty.
The Court is aware of the lack of facilitative provisions in NSW with respect to the rolling up of fraud charges. Submissions were made to the NSW Sentencing Council in 2023 by both the NSW Office of the Director of Public Prosecutions and also by the NSW Bar Association indicating that a facilitative provision to assist rolling up would be helpful. That recommendation was not adopted by the New South Wales Sentencing Council in its Report on Fraud published in June 2023.
However, the Court of Criminal Appeal has regularly accepted that fraud offences and other offences in an ongoing criminal enterprise can be rolled up.
In Calleija v Regina [2012] NSWCCA 37 Beazley JA (R A Hulme and Garling JJ agreeing) said at [61]:
"The basis for and permissibility of charging one offence where a number of separate acts have been considered is well-established."
Her Honour referred to the judgment of Hunt CJ at CL (Abadee and Simpson JJ agreeing) in R v Hamzy (1994) 70 A Crim R 341 where the Court had approved the effective 'rolling up' into one count of supplying heroin where the Crown intended to prove a number of individual acts of supply by the accused to different people at different times, provided that those acts could fairly and properly be identified as part of the same criminal enterprise or the one criminal activity.
Justice Hunt said in Hamzy, at 349:
"I see no reason why the concept of the one criminal enterprise or one criminal activity should be interpreted narrowly."
Hamzy has been consistently followed in the NSW Court of Criminal Appeal in appropriate cases: see for example, Regina v Moussad [1999] NSWCCA 337; 152 FLR 373; and Hughes v R [2021] NSWCCA 238. (Cf. R v Rosamond (No 3) [2023] NSWDC 267).
The approach adopted in the present matters of Kosseifi and Sousan was to accept pleas of guilty to a cherry-picked selection of counts in the respective indictments, and then to place on different Form 1 documents groups of offences from the indictment which each attached to separate identified substantive counts.
The interests of open justice require this Court to identify, in terms, the substantive counts in respect of which pleas of guilty have been accepted and also each of the charges respectively placed on the different Forms 1.
It goes without saying that such a laborious task would be unnecessary if a more efficient manner of pleading in the indictment had been adopted.
Each of the offenders was required to be formally arraigned before this sentencing court. Undoubtedly a formal arraignment of 227 counts in total between the two co-offenders would have occupied in excess of two hours in the busy call-over court, which is the likely explanation for the arraignment to have not occurred before the matter came before me.
The counts to which they each respectively entered pleas of guilty were firstly, 23 out of the 44 counts which related to causing a financial disadvantage to Service NSW.
The first 20 of these counts were Counts 3, 7, 8, 9, 10, 17, 18, 34, 36, 38, 39, 40, 42, 44, 45, 48, 49, 50, 51, and 53. Each of these counts related to successful applications for a Micro-Business Support Grant in the amount of $12,000, with the exception of Counts 17 and 36 which each related to grants in the amount of $10,500.
Three additional counts relating to causing a financial disadvantage to Service NSW, to which pleas of guilty were entered, were Counts 77, 83 and 98. Each of these counts related to successful applications for the payment of $320 by way of a TIP.
Each offender also acknowledged their guilt with respect to 21 other charges relating to successful applications which had caused payments to be made - and which had originally been pleaded in the indictment. These counts were placed on Form 1 documents attached to various of the substantive offences to which they had pleaded.
Counts 1, 2 and 4 in each of the separate indictments were placed on a Form 1 document which attached to Count 3. Each of those counts related to a successful payment of $320 by way of a TIP.
Counts 5, 6 and 11 in each indictment were placed on a Form 1 document attached to Count 7. Counts 5 and 6 related to successful payments of $320 pursuant to a TIP. Count 11 related to an unsuccessful application for a TIP.
Counts 8, 9 and 10 did not have Forms 1 attached to them.
Counts 12 to 16 inclusive in each indictment were placed on a Form 1 document attached to Count 17. Count 12 related to an unsuccessful application for a TIP while counts 13 to 16 inclusive related to successful payments of $320 pursuant to a TIP.
Counts 19 to 24 inclusive in the indictments against the respective offenders were placed on a Form 1 document attached to Count 18. Each of these counts related to successful payments of $320 pursuant to a TIP.
Counts 25 to 33 inclusive in each indictment were placed on a Form 1 document attached to Count 34. Counts 25, 26, 29 and 33 each related to successful payments of $320 pursuant to a TIP. Counts 27, 28, and 30 related to unsuccessful applications for TIP payments of $320. Count 31 related to an unsuccessful application for $6,240 pursuant to a Job Saver Program and Count 32 related to an unsuccessful application for a further $12,000 Micro-Business Support Grant.
Count 36 did not have a Form 1 attached to it.
Counts 35, 37 and 41 in each indictment were placed on a Form 1 document attached to Count 38. Count 35 related to a successful $320 payment pursuant to TIP, while counts 37 and 41 each related to unsuccessful applications for additional Micro-Business Support Grants of $12,000.
Counts 39 and 40 did not have a Form 1 attached to either of them.
Counts 43, 46 and 47 in each indictment were placed on a Form 1 document attached to Count 42. Each of those counts on the Form 1 document related to unsuccessful applications for $12,000 Micro-Business Support Grants.
Counts 44, 45, 48, 50, 51 and 53 did not have Form 1 documents attached to them.
Count 52 related to an unsuccessful application for a $12,000 Micro-Business Support Grant and was placed on a Form 1 which was attached to Count 49.
The three substantive counts regarding successful applications for $320 for TIPs, namely counts 77, 83, and 98, each had Form 1 documents with respect to additional acknowledged offences attached to them.
Counts 75, 76 and 78 each related to similar offending regarding application for payments of $320 pursuant to a TIP. Counts 75 and 76 related to unsuccessful applications while Count 78 related to the successful causing of a financial disadvantage. These additional offences were placed on a Form 1 attached to Count 77.
Counts 79 to 82 inclusive, and Counts 84 to 86 inclusive, all related to unsuccessful applications for payments of $320 pursuant to the TIP. These seven counts were placed on a Form 1 attached to Count 83.
Counts 87 to 97 inclusive, and Counts 99 to 103 inclusive, similarly all related to unsuccessful applications for payments of $320 pursuant to the TIP. These 16 counts were placed on a Form 1 attached to Count 98.
The absurdity of having to recite this litany of numerical sequences makes the Court sound like a bingo caller.
As would be self-evident at this juncture, some substantive counts to which pleas of guilty were entered had no Form 1 additional offences attached; some had offences relating to payments of $320 leading to a total of less than $1,000 attached to them; while others attached to a substantive count involving $12,000, and had additional offences relating to $36,000 in successful payments attached pursuant to a Form 1.
Such a varying, variable and piecemeal approach to prosecuting and pleading such an ongoing fraud is, with the greatest of respect, to be deprecated.
As was observed by Spigelman CJ in the guideline judgment regarding the utilisation of the Form 1 procedure (Attorney General's Application Under s37 of the Crimes (Sentencing Procedure) ACT 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518); at [57]:
"… there is a balance to be struck between the number and gravity of charges on an indictment and the number and gravity of charges on a Form 1."
The next group of substantive offences to which each of the offenders entered pleas of guilty related to the unsuccessful applications for payments which had been submitted to Service NSW. As I have already observed these counts did not allege an attempt, but were focused on the act of dishonestly publishing a false application with intent to obtain a financial advantage.
Of the 59 counts in each of the indictments relating to unsuccessful applications, pleas of guilty were accepted with respect to four such applications. These were Counts 54, 56, 59 and 65. Each of these unsuccessful applications were for a Micro-Business Support Grant in the amount of $12,000.
Each offender acknowledged their guilt with respect to the additional 55 counts in each indictment alleging similar conduct with respect to unsuccessful applications for either small business grants or the TIP. These were placed on various Form 1 documents, some of which had been attached to substantive charges relating to successful applications, as would be obvious from my earlier summary of the Form 1 documents attached to some counts in that group of offences.
Count 55 related to an unsuccessful application for a $12,000 Micro-Business Support Grant and was placed on a Form 1, which was attached to Count 54.
Counts 57 and 58 similarly related to unsuccessful applications for $12,000 Micro-Business Support Grants, and were placed on a Form 1 attached to Count 56.
Counts 60 to 64 inclusive each related to unsuccessful applications for $12,000 Micro-Business Support Grants. These 5 counts were placed on a Form 1 attached to Count 59.
Counts 66 to 74 inclusive similarly each related to unsuccessful applications for $12,000 Micro-Business Support Grants. These 9 counts were placed on a Form 1 attached to Count 65.
Margaret Kosseifi also pleaded guilty to Count 104 in the indictment presented against her. This was a "rolled-up" count of dealing with the proceeds of crime during October and November 2021 in a total amount of $149,120. There was no Form 1 attached to this charge.
Danyal Sousan was charged and pleaded guilty to five separate counts of dealing with the proceeds of crime. These were not rolled up. They were counts 104 to 108 inclusive in the induction presented against him. Each of those counts were respectively regarding amounts of $10,500, $320, $12,000, $12,000 and $1,000.
Count 104 related to the transfer from an account connected to Sousan of $10,500 which had been received the previous day. No Form 1 attaches to this charge.
Count 105 related to the transfer by Sousan of an amount of $320 (together with other money) from an account. No Form 1 attaches to this offence.
Count 106 related to the receipt of $12,000 into an account on 19 October 2021 and the subsequent dealing with portions of that sum on several occasions during the ensuing month. This charge was "rolled-up" and pleaded between the dates of the transfers of different sums of money. No Form 1 attaches to this offence.
Count 107 was similarly a "rolled-up" charge relating to numerous transactions described as "dealing" on a number of different days. Again, no Form 1 attaches to this offence.
Count 108 was a single substantive offence arising from Police surveillance during which they observed one transaction by Sousan of withdrawing $1,000 from an ATM linked to an account in one of the false names.
Count 109 arose from Police surveillance of Sousan on the same day (approximately 10 minutes after the withdrawal giving rise to Count 108) where Sousan was observed to withdraw $2,000 from an ATM similarly linked to an account in another false name. This individually charged separate offence, for a larger amount, was placed on a Form 1 to be taken into account on the sentence for Count 108 which was for a lesser amount.
Count 105 in the Kosseifi indictment related to dealing with identity information. These were credit cards in a false name.
Counts 106 to 109 inclusive in the Kosseifi indictment each similarly related to dealing with identity information, being additional credit cards in four separate false names. These were included on a Form 1 attached to Count 105.
Count 110 was a "rolled-up" charge of possession of more than 700 individual items of identification information. It was also included on the Form 1 attached to Count 105.
Also included on the Form 1 attached to Count 105 were three summary offences relating to the three small quantities of prohibited drug which had been located by police during the search of the offender's home.
The corresponding count to Count 105 in the Kosseifi indictment was Count 110 in the Sousan indictment. This similarly related to dealing with identity information, being credit cards in the same false name.
Counts 111 to 114 inclusive in the Sousan indictment related to dealing with identity information, being credit cards in 4 separate false names, together with Count 115 which was the "rolled-up" charge of possession of more than 700 individual items of identification information. These additional counts, together with one summary offence relating to possession of a small quantity of a prohibited drug, were placed on the Form 1 attached to Count 110.
The last count in each of the indictments against the respective offenders related to their involvement and participation in a criminal group.
Count 111 in the Kosseifi indictment related to her directing the activities of the criminal group. No Form 1 attached to this offence.
Count 116 in the Sousan indictment related to his participation in the activities of the criminal group. No Form 1 attached to this offence.
In summary, each of the offenders has pleaded guilty to 23 counts of dishonestly causing a financial advantage by deception; four counts of dishonestly publishing false material in support of an application; Kosseifi has pleaded to a single "rolled-up" charge of dealing with the proceeds of crime, whilst her co-offender Sousan has pleaded guilty to five separate counts of dealing with the proceeds of crime; each has pleaded guilty to one count of dealing with identity information; and each has pleaded guilty to the respective participation in, or directing the activities of, a criminal group.
I propose in due course to proceed to impose an aggregate sentence pursuant to the provision of s 53A(1) of the Crimes (Sentencing Procedure) Act 1999.
There will be attached to these Remarks a Table setting out each of the respective substantive offences in respect of which pleas of guilty have been entered. That Table will include an assessment of the objective seriousness of the individual substantive offences and, taking into account the various Form 1 offences, the indicative sentences appropriate to those individual substantive counts.
[4]
SUBJECTIVE FACTORS: KOSSEIFI
The offender Kosseifi did not give any evidence on the sentence proceedings. Information regarding her subjective background was provided to the Court by way of the tendering a psychological assessment report from Ms Susan Hawil dated 18 January 2024 and an unsworn letter of apology from the offender dated 31 January 2024.
The Court was also provided with a copy of the offender's extensive criminal history.
Margaret Kosseifi was born in Lebanon in March 1978. She is currently 45 years of age and shortly will turn 46. She came to Australia with her parents in 1980 when she was two years of age. She described to the psychologist growing up in a loving relationship with her family. She had one older brother and one younger brother.
She attended Primary School in Campsie before attending High School in Lakemba. Whilst completing the Higher School Certificate in Year 12, she described disruptive classroom behaviour and truanting in her account to the psychologist.
She pursued employment in a number of different jobs after leaving school including being a personal assistant at a data enterprise company and working in a café. She completed a Diploma of Beauty Therapy and worked for some time in the beauty industry.
She met her future husband at the age of 20 and they married in February 2001. She described a difficult marriage including assertions of domestic violence and infidelity by her ex-husband. The marriage was described as on and off. They eventually separated in 2010. She has two children who are now aged 18 and 21.
Ms Kosseifi described having been in a relationship with a drug-addict dealer in 2008 during a period of separation from her husband. She reported that she was subject to significant violence and abuse during that relationship which ended in 2009. She described a long history of abusive relationships.
Her first involvement with the criminal justice system was shortly before she turned 30. A variety of offences involving comparatively minor criminality led to numerous appearances in the Local Court between 2008 and 2018. Various traffic matters and also drug offences lead to the imposition of a variety of bonds to be of good behaviour. On a number of occasions, she failed to appear and bench warrants were issued for her apprehension.
Her first period of incarceration was in 2010. She received custodial sentences for a number of different offences of dishonesty including the possession of identity information, goods in custody, and dishonestly obtaining property by deception. Her first period of imprisonment was for 3 months.
She appears to have entered into a relationship with her co-offender, Danyal Sousan, around 2010. He was apparently in receipt of a Disability Support Pension, and she subsequently described herself to the psychologist as his 'carer'.
She was also dealt with in 2010 for multiple breaches of different bonds to be of good behaviour and was sentenced to an additional term of approximately four months before being released to parole in March 2011.
In 2011 and 2012 she received additional terms of imprisonment in relation to offences of driving whilst disqualified and a number of different drug possession charges.
In due course she was referred to the Parramatta Drug Court where she was dealt with by the suspension of sentences, referrals to care, and other alternatives to full-time imprisonment.
In 2018 she was charged with importing a Border Control Drug pursuant to Commonwealth legislation. She was sentenced to imprisonment for 2 years 3 months at Parramatta District Court and directed to be released on recognizance after an 18 month minimum term, subject to her completing the Women Justice Mentoring Program.
While in custody serving the Commonwealth sentence, she was also charged with an earlier offence of dealing with identity information with intent to commit indictable offences. Following her release for importing the Border Control Drug she was sentenced to 2 years imprisonment for dealing with the identity information. However, that sentence was directed to be served by way of an Intensive Correction Order. That Intensive Correction Order commenced on 13 December 2021 and continued until 12 December 2023.
As I indicated earlier in these Remarks, she went into custody in relation to the present matters for sentence in June 2022.
In October 2023 she was sentenced at Burwood Local Court for two offences of taking a prohibited drug into her place of detention. She was sentenced to 12 months with a 9 month non-parole period commencing from 19 October 2023. She is currently still subject to that sentence.
A typed letter of apology from the offender Kosseifi was tendered. She did not give evidence and hence the contents of that letter of apology were neither sworn, nor tested in cross-examination.
In that letter she describes her attitude to her offending in the following terms:
"I am emotionally and physically horrified at the adverse effect my behaviour has had on the community, and in my family and friends while under the influence of illicit substance (sic). I am mentally remorseful for my actions and I am so ashamed of the direction I have allowed myself to take in this current time of my life."
I bear in mind the reservation which must attach to such unsworn and untested assertions (see R v Qutami [2001] NSWCCA 353). The assertions in that letter are quite contrary to her demonstrated and repeated offending as disclosed in her criminal history.
The psychological report from Ms Susan Hawil provided the basis for the personal family history to which I have already made reference. In addition, the report set out a history of substance abuse as reported by the offender. She described commencing the use of cannabis as a teenager and graduating to the regular use of MDMA or ecstasy on weekends between the ages of 18 and 21. She reported that her ex-husband had introduced her to the use of crystal methylamphetamine or 'ice' in 2006. She said that she regularly used 'ice' up until her incarceration in 2010.
She said that the referral to the Drug Court Program in 2013 had been "really good" for her. She indicated that she had refrained from substance abuse and disassociated herself from the drug-use milieu up until 2016 when she encountered an old male friend and she again found herself in an abusive relationship. She said that she recommenced using 'ice' on a regular basis. She said that she was also using GHB regularly.
Following her return to custody in 2018 for the offence of importing a Border Control Drug she said that she began experimenting with heroin whilst incarcerated. She said that she also smoked buprenorphine in the jail. She said that she had continued with that drug use up until her arrest for the present matters.
Kosseifi provided the psychologist with a complex history of various traumas in her life. These included an assertion of childhood sexual abuse by a male neighbour who she described as her father's best friend. The sexual abuse, including sexual intercourse, was said to have occurred between the ages of seven and 12. She also gave a history describing two serious car accidents, the murder of her uncle in 2018, and the detail of some aspects of her abusive relationships including being threatened to be killed and buried, and being locked in the boot of a motor vehicle. She described the trauma of her father passing away while she was incarcerated.
On the basis of the history given by Ms Kosseifi, the registered psychologist formed the opinion, in conjunction with psychometric testing, that Ms Kosseifi met the DSM-V criteria for Post-Traumatic Stress Disorder, a Major Depressive Disorder, Amphetamine Stimulant Use Disorder, Opioid Use Disorder, and also the criteria for a Gambling Disorder.
Notwithstanding the inability of a psychologist to reach a conclusive diagnosis, I accept her opinion, on the history given to her, of the presence of criteria consistent with such diagnoses.
I do not, however, accept that there is any causal connection between such mental conditions and the criminal behaviour which would operate as a mitigating factor in an assessment of her criminal culpability.
In the history received by the psychologist, the profits from the ongoing fraudulent conduct were dissipated in drug use and gambling.
The psychologist also undertook the quantitative survey pursuant to the Level of Service Inventory-Revised (LSI-R) which determines an assessment of the risk of future re-offending. Pursuant to the LSI-R, Ms Kosseifi was assessed as falling in the moderate risk for re-offending.
The psychological assessment report concluded by noting that Ms Kosseifi had expressed her remorse and accepted responsibility for her actions in consultation with the psychologist.
In the absence of sworn evidence by her, or cross examination with respect to such expressions of remorse, I should indicate that I entertain considerable reserve in this regard.
Annexed to the report was a proposed treatment plan which anticipated regular attendances upon the treating psychologist, accompanied, if required, by metabolic monitoring and treatment and/or urine testing by a designated general practitioner.
Ms Kosseifi wrote an apology letter which I have already referred to and has been tendered. I have earlier referred to the reserve which the Court should hold regarding such unsworn and untested assertions and I make specific reference to Qutami [2001] NSWCCA 353.
However, it is important to note that in Lai v R [2021] NSWCCA 217, Bellew J underscored the level of reserve that a Court should entertain by strongly discouraging the production of such material.
Bellew J endorsed the view set out in the judgment of Justice Whealy in Elfar [2003] NSWCCA 358 at [25], where his Honour had said:
"The matters of principle stated in R v McGourty and R v Qutami are plainly important. They require emphatic endorsement by this court. Indeed it needs also to be further emphasised that this principle extends not only to statements in psychological reports, but also to statements by offenders in pre-sentence reports - (R v Palu per Howie J with whom Levine J and Heydon J agreed [2002] NSWCCA 381; (2002) 134 A Crim R 174 at 185). In addition, the current practice of tendering a note or letter from an offender in sentencing proceedings attracts the same admonishment. Considerable caution should be exercised in reliance upon such exculpatory material where there is a matter in dispute and where no evidence is given by an offender or other direct evidence is not placed before the court. The essential reason for treating the material in that way is precisely because it remains untested. Indeed, where the Crown has either objected to the tender of this type of material or has made it clear, either at the time of tender or when submissions are made, little or no weight should be placed upon the material, that the sentencing court would be entitled to treat the material as being of little or no weight. Indeed, in an appropriate case, it ought to do so."
Bellew J then said at [80]:
"Those observations have since been consistently reiterated by this Court. There is, in my view, no utility in adopting the practice of tendering a statement in the absence of sworn evidence, in circumstances where this Court has made it abundantly clear that little or no weight should be attached to its contents. It follows that in my view, such a practice is to be strongly discouraged."
I agree with the analysis undertaken by Priestly SC DCJ in R v King [2023] NSWDC 100 and, as I have observed in other cases, notwithstanding the strong discouragement expressed by Bellew J, this Court regularly receives such material and continues to do so.
However, in many instances, little weight can be given to the contents of such documents regarding matters of remorse, contrition or other mitigatory or exculpatory statements.
In the present matter, Ms Kosseifi said:
"I am emotionally and physically horrified at the adverse effect my behaviour has had on the community…"
In my view such an emotive response, which remains untested, is a statement of convenience to the plea, and I do not accept it as a genuine expression of her now awareness and remorse.
[5]
SUBJECTIVE FACTORS: SOUSAN
The offender Sousan similarly did not give evidence on the sentence proceedings. Information relating to his subjective factors and background was provided to the court in a psychological report by Mr Chafic Awit dated 29 January 2024. A letter of apology from the offender was also tendered together with a letter of reference from his son, Mr Elias Sousan. His criminal history was included in the Crown Tender Bundle.
Danyal Sousan was born in Tripoli, Lebanon in July 1973. He was the eldest of eight children and lived in Lebanon until 1998. He is now 50 years of age.
His parents are still alive and residing in Lebanon. He described quite severe physical punishment as a child at the hands of his parents.
He grew up during the period of the civil war in Lebanon which raged between approximately 1975 and 1990. He recounted to the psychologist the detail of the trauma he witnessed during that period including neighbours turning on each other and seeing people killed in front of him. He said that he witnessed his own cousin killed in front of him when they were both 18 years of age.
The offender described the onset of panic attacks with symptoms similar to experiencing a heart attack. His parents took him to see psychiatrists at the age of 17 and he was prescribed antidepressants with respect to what appears to have been diagnosed as a Panic Disorder. He said that he had been hospitalised as a consequence on numerous occasions.
Mr Sousan's education and schooling was disrupted as a consequence of the ongoing war. He left school at the age of 12 having attained the equivalent education to Year 5.
After leaving school he commenced employment at the age of 12 working for his father at the time. He continued in this occupation until the age of 25 when he emigrated to Australia.
In the psychologist's report the offender is described as having been married in about 1998. It is unclear as to whether or not he was married before coming to Australia. He was with his wife for six years and they had one child.
Soon after arriving in Australia he developed a problem with gambling on poker machines. By 2001 he was gambling on poker machines on a daily basis. At the age of 26, at about the same time as his commencement of gambling, he was introduced to the drug 'ice'. He described to the psychologist continuing to use 'ice' and also continuing his addiction to gambling, up until his current arrest.
He described that his addiction to drugs and gambling had caused the failure of his marriage. It would appear that the marriage broke up in approximately 2004. However, he had maintained a relationship with his son over the following years.
Notwithstanding his reported significant drug addiction and problem gambling, he worked with his cousin as a tiler for a period of 10 years after he arrived in Australia. He told the psychologist that he struggled with his employment and believed that he would have been terminated earlier but for the fact that he was working for his cousin.
His first interaction with the criminal justice system was a series of minor summary offences in 2006. These included offensive language in a public place, the use of an unregistered motor vehicle, and refusing to produce a licence or state his name to police. These offences were all dismissed pursuant to section 10. Additional charges of resist arrest and assault police resulted in section 9 bonds.
It is to be noted that he was 33 years of age at the time of the commission of this first group of offences.
He officially ceased working in 2008. He reported to the psychologist that he was placed on a Disability Support Pension due to increasing psychological issues. He has remained on the Disability Support Pension since that time.
It would appear that he entered a relationship with his co-offender in approximately 2010. Mr Sousan described her to the psychologist as his official carer and partner.
He was next arrested and charged in August 2012 with dishonestly taking mail from a receptacle, goods in custody, and custody of a knife.
While those matters were pending he was subsequently charged in November 2012 with two counts of larceny.
He was ultimately sentenced in October 2013 at Burwood Local Court to 12 months imprisonment with a non-parole period of 7 months with respect to the larceny offences.
He was also sentenced to imprisonment for 5 months, 3 months and 3 months for the offences from August 2012. He was granted bail pending appeals against all of the terms of imprisonment. The terms of imprisonment were stayed pending the appeals.
Before these matters were dealt with, he had again been arrested and charged on 20 December 2012 with possession of a pistol, possessing a prohibited weapon without permit, dealing with proceeds of crime greater than $1,000 and dishonestly obtaining a financial advantage by deception.
He spent approximately three weeks in custody following his arrest until he was granted bail on 10 January 2013.
Along with the earlier matters, all of these additional charges were also dealt with at Burwood Local Court on 25 October 2013. He received terms of imprisonment for the December 2012 offences of 3 months, 3 months, 5 months and 6 months, all to be served concurrently.
These matters were all joined with the pending appeals to the District Court. The sentences were stayed pending the outcome of the appeal. On 23 June 2014 all of the convictions and sentences were confirmed in the District Court. The sentences accordingly commenced on 23 June 2014. He served the 7 month non-parole period and was released on 22 January 2015.
While those appeals had still been pending, he had been arrested and charged on 6 September 2013 for a further offence of obtaining property by deception. He had already been charged with 10 additional counts of obtaining property by deception, such charges having been preferred on 8 April 2013. Those 10 charges were also included in the multiple offences dealt with at Burwood Local Court on 25 October 2013 and resulted in further terms of imprisonment of 6 months. As with all of the other matters he was granted bail pending the appeal, which along with the other matters, were part of the sentences confirmed in the District Court on 23 June 2014. The sentence of 6 months was subsumed into the 7 month non-parole period.
The separately charged dishonest obtaining from 6 September 2013 was dealt with at Parramatta Local Court on 16 July 2014. He was sentenced to 3 months from that date. He was, of course, already in custody serving the non-parole period of 7 months. An appeal against the 3 month sentence, which was wholly subsumed in the non-parole period of 7 months, was subsequently dismissed. During his time in custody he also appeared with respect to assault and stalk/intimidate offences with which he had been charged in November 2013. Sentences imposed in July 2014 of 3 months were similarly subsumed into his 7 month non-parole period.
Shortly before the District Court appeals were heard on 23 June 2014 he was further charged with offences of possessing a prohibited drug and possession of drug equipment. Whilst in custody serving the 7 month non-parole period those matters were dealt with at Parramatta Local Court on 16 July 2014 when he was again sentenced to 3 month terms. A subsequent appeal to Parramatta District Court heard on 3 October 2014 was dismissed.
Following his release to parole in January 2015 he was charged with driving a motor vehicle whilst suspended on two occasions. The first, in July 2015, led to a fine and a s 9 bond and the second in September 2015 similarly led to a s 9 bond notwithstanding his being called up for breach of the first bond.
In August 2015 he was again charged with possession of a prohibited drug which resulted in a fine.
His prison custody record indicates an admission to Parklea on 18 October 2016 and being released to bail on the same day. That does not appear to correlate with any entry in his criminal history.
In June 2016 he had again been charged with possession of a prohibited drug. On 1 December 2016 he was sentenced to 3 months for that offence at Parramatta Local Court. He was granted bail pending a severity appeal. On the same day at Parramatta Local Court he had been sentenced on a call up for the second s 9 bond for driving whilst suspended again, and had been sentenced to 7 months with a 3 month non-parole period. He was similarly bailed pending an appeal.
On 22 May 2017, the appeals against the 3 months for possession of drugs and 7 months for the revocation of his bond for driving whilst suspended were dealt with at Parramatta District Court. The orders were varied, he was placed on a 3 month bond for the drug matter and sentenced to 7 months for the driving whilst suspended but with a non-parole period of one day meaning that he was released instanter.
While those appeals had been pending he was given a s 12 suspended sentence of 4 months on 16 May 2017 for a goods in custody offence, for which he had been charged in November 2016. He had also been charged in February 2017 with having custody of an offensive implement in a public place.
With various matters still pending he was arrested on 30 June 2017 and charged with three offences of dishonest obtaining by deception and four offences of larceny. He was bail refused and put into custody.
On 18 July 2017 he received a variety of sentences at Parramatta Local Court, the overall effect of which were sentences of 12 months for the various larcenies and the dishonest obtaining with 6 month non-parole periods. Various sentences of 3 months and 4 months for breaches of the bonds and custody of the offensive implement were to be served concurrently. He got the benefit of the sentence being backdated to 28 June and was released to parole on 27 December 2017.
The facts with respect to the offences in 2017 have been included in the Crown Tender Bundle. The antecedents included in the facts sheet in 2017 describe Mr Sousan having been regularly charged for property offences relating back to the theft of mail with convictions for such matters dating back to 2012. He was described as having demonstrated a clear and regular pattern for stealing mail and using the mail items to commit further fraud offences. In June 2017, he had been captured on CCTV in Guildford stealing items of mail, including a number of credit cards. He subsequently used the stolen credit cards in nine separate transactions for the purchase of cigarettes and other items.
He was next arrested and went into custody for the present matters on 22 June 2022.
The registered psychologist expressed the opinion, based on his assessment, that the offender had an underlying condition of a Panic Disorder and also Attention Deficit Hyperactivity Disorder. These underlying conditions, in the opinion of the psychologist, were likely to have played a causal role in the development of a Substance Use Disorder and a Gambling Disorder which were reflected in drug and gambling addictions.
Whilst I accept the connection between the psychological disorders leading to drug and gambling addictions, these do not operate as a causal factor in the commission of the offences and do not operate to reduce his moral culpability.
I should note with respect to his background and upbringing a submission was advanced on his behalf that the principles enunciated in Bugmy v R (2013) 249 CLR 571 and Fernando (1992) 76 A Crim R 58 had application to the offender. Whilst I have regard to his subjective background, in the overall instinctive synthesis, I do not accept that circumstances relating to his upbringing and life experience in Lebanon has played any role in his commission of offences as an adult. These are, in my view, linked to his descent into gambling and drug abuse and are to be distinguished from the principles set out in Bugmy and Fernando.
A letter under the hand of the offender himself was also tendered. I note that it is not sworn nor subject to cross examination. However, in it, he describes having stopped using drugs since he has been in custody. He expresses an intention to remain drug free and to find legitimate employment when he is released from custody. In his letter he also apologises for his actions and promises the court it will never happen again. I exercise appropriate reserve in relation to that unsworn document. A letter from the offender's son has also been tendered. This letter repeats aspects of what his father told the psychologist regarding observing traumatic events in Lebanon during the war. The offender's son also describes what his father had told him about mental health problems experienced by his father after moving to Australia. The offender's son, Elias Sousan, also expresses his father's intention to turn his life around and he expresses the desire that this will be a starting point of a new beginning for his father. I accept the genuine nature of his desire that such an intention will operate in that fashion, but I hold considerable reserve as to that eventuating.
[6]
REMORSE AND REHABILITATION
Margaret Kosseifi's past history and repeated offending, particularly for offences of dishonesty, provide little optimism regarding her prospects of rehabilitation. Her expressions of remorse through her letter of apology and as expressed to the psychologist, are, as I have already indicated, untested, and I entertain considerable reservation as to the genuine nature of the expressions of remorse.
A consideration of similar expressions of both remorse and intentions with respect to the future are to be found in the material tendered on behalf of Danyal Sousan. I am similarly left with considerable reserve regarding his expressions of remorse and am driven to a conclusion that his prospects of rehabilitation must be viewed as guarded.
[7]
OBJECTIVE SERIOUSNESS
An assessment of the objective seriousness of the ongoing commission of fraud offences requires both a consideration of the individual actions where they are separately charged, and also, a consideration of the overall objective seriousness of the totality of the fraudulent conduct. In the Crown's submission all of the matters charged with respect to both offenders pursuant to s 192E(1)(b) fall below the mid range of objective seriousness. With respect to the offences under that subsection relating to the amount of $320 the Crown places them even further down the range and describes them as being in the low range of objective seriousness. With respect to the offences under s 192G(b) involving unsuccessful applications, the Crown submits that they similarly fall below the mid range. The Crown also submits that the offence charged under s 192J (Count 105 for Kosseifi and Count 110 for Sousan) fall below the mid range of objective seriousness. With respect to Count 104 against Kosseifi, knowingly dealing with proceeds in an amount of $149,120 the Crown submits that the amount involved places this within the mid range of objective seriousness.
The knowingly dealing with proceeds offences with respect to Sousan, Counts 104 to 108, by reference to the substantially lesser amounts, are submitted to fall individually within the low range of objective seriousness. I agree with the Crown's assessment of the objective seriousness with respect to these different groups. The two counts relating to direction of or participation in a criminal group are each placed by the Crown within a mid-range of objective seriousness. Count 111 in relation to Kosseifi places her in a position of directing the activities of others while also participating in the group, while Count 116 against Sousan focuses on his participation in the criminal group. The difference in maximum penalties in respect of those offences needs to be borne in mind. The position of directing others against Kosseifi and of participation in 103 applications pursuant to a joint criminal enterprise with Sousan, do however, place each of these particular offences within a broad mid range.
[8]
AGGRAVATING FACTORS
The Crown relies upon two aggravating factors with respect to Kosseifi. Features such as planning have been taken into account with respect to the assessment of objective seriousness and the Court must not permit double counting of such a factor. However, the Crown points to the record of previous convictions of Kosseifi which have included repetitive deception and stealing offences as well as previous offences of dealing with identity information. These matters fall within s 21A(2)(d) of the Crimes Sentencing Procedure Act. The Crown also points to some of the offences having been committed while Kosseifi was subject to the Intensive Correction Order which was imposed on 13 December 2021. The offences involving the use of identity information and dealing with the proceeds of crime fall after the imposition of the ICO, and operate as an aggravating factor pursuant to s 21A(2)(j). The offences which occurred before that point in time, were likely committed while she was on bail and those matters were still pending.
With respect to Sousan, the Crown does not rely upon any identifiable aggravating factor but notes that his prior criminal history, which does include the matters to which I have referred in 2017, operate to disentitle him to the level of leniency that might otherwise be attracted. His record also supports increased weight being attributed to specific deterrence.
I should note, that as in most matters of fraud, aspects of general deterrence need be also brought to mind.
[9]
MITIGATING FACTORS
Each of the offenders is entitled to the full 25% discount on sentence.
I have already referred to the expressions of remorse and the reserve which I entertain in accepting the genuine nature of each of the expressions of remorse.
[10]
COMPARABLE CASES
The parties did not provide any comparable cases. I am well aware that the individual circumstances of apparently comparable cases need to be carefully examined and caution exercised in utilising them. I am also well aware of the dangers involved in the use of comparative cases, particularly in fraud cases. The enormous variation in objective and subjective circumstances which are involved was specifically referred to by Johnson J in R v Martin [2005] NSWCCA 190 at [65].
However, comparable cases can provide assistance to a sentencing judge at first instance in formulating the "instinctive synthesis" and can also provide some guidance as to whether a contemplated outcome falls within an appropriate range. I have, accordingly, endeavoured to look at some cases which bear some similarity to the relevant circumstances attending the present matter.
Kapua v R [2023] NSWCCA 14 was an appeal against the severity of sentence which had been passed by Grant DCJ with respect to nine dishonesty offences contrary to ss 192C(2) and 192E(1)(a)-(b) of the Crimes Act 1900 (NSW) with two further offences taken into account on two Form 1 documents pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The offences had been committed by the offender over a four month period, and each involved the assumption of the identity of another individual, and the subsequent use of six stolen identities to apply for financial advantages from various institutions. The sentencing judge had imposed a sentence of 6 years imprisonment with a non-parole period of 4 years and 3 months.
The majority of the charged offending related to unsuccessful attempts to obtain not insubstantial amounts from various accounts of the six victims whose identities had been "stolen" or acquired by Ms Kapua. These were variously savings accounts, superannuation accounts and also unsuccessful applications for loans brought in some of the names of the stolen identities. The total amount which was unsuccessfully attempted to be obtained was in excess of $1.3 million.
The actual amount of cash and goods which were successfully fraudulently obtained was approximately $15,000.
The Crown in that matter had sensibly "rolled up" the multiple attempts to obtain a financial advantage by deception with respect to each of the six separate victims whose identities had been "stolen". By taking such a commonsense approach, rather than separately charging each of the many individual transactions and applications, the sentencing judge had six substantive offences of attempt, each of which related to the total value of all of the separate attempts relating to each individual victim.
There was one additional charge of dealing with the proceeds of crime which related to a discrete incident involving a stolen chequebook, and two substantive charges of actually dishonestly obtaining property. These two counts related to individual obtaining was of approximately $6,500 and $2,500.
The relevant indicative sentences are set out in a table at [45] in the judgment of Wilson J in the Court of Criminal Appeal.
Simpson AJA (as his Honour then was) would have found error in the way in which the sentencing judge had dealt with the psychologist's opinion relating to the offender's moral culpability. In the event of proceeding to re-sentence pursuant to Kentwell v The Queen [2014] 252 CLR 601; [2014] HCA 37, her Honour indicated the variation which she would have made to the indicative sentences (set out at paragraph [40] of her judgment) and also indicated the lesser sentence which she would have proposed. In the event of the appeal having been allowed, her Honour would have reduced the sentence of 6 years to one of 5 years and 5 months and the non-parole period from 4 years and 3 months to 3 years and 8 months.
However, the majority, Wilson and Davies JJ, dismissed the appeal against severity.
R v Boyle [2023] NSWDC 57 is a first instance decision of Haesler SC DCJ. Its principal significance is that it was a fraud, similar to the present matters, in relation to the emergency payments made available by the State Government with respect to the COVID pandemic. Boyle had previously been sentenced by Judge Haesler SC approximately 12 months earlier in February 2022 to a term of imprisonment of 6 years and 6 months with a non-parole period of 4 years and 6 months for a number of very serious offences. His Honour described Boyle as having a long criminal history and a sad and tragic personal history.
After going into custody, Boyle provided his personal information and organised with a person in the community to defraud the State Government in applying for the emergency payments during COVID. The relief grants were obtained for Boyle's benefit. The total amount obtained was $10,500, some of which was placed into Boyle's prison account.
His Honour needed to take into account the institutionalisation of Boyle and also to take into consideration the principle of totality given that Boyle was already serving a not insubstantial sentence. He was sentenced to 1 year and 10 months with a non-parole period of 6 months.
Harris v R [2023] NSWCCA 44 was an appeal against the severity of an aggregate sentence imposed by Walmsley SC DCJ with respect to an offender who had pleaded guilty to six counts of dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and two counts of attempted contraventions of the same provision. The offences related to false information submitted in support of applications for grants for small businesses affected by the 2019 to 2020 bushfires.
Judge Walmsley SC had determined indicative sentences of 12 months for each of the completed offences under s 192E(1)(b) and indicative sentences of 10 months for the two attempted contraventions of that provision.
The scheme which had been set up by the New South Wales State government was, in a similar vein to the present matters before me, a program which had been established for the making of grants to provide assistance to affected small businesses following the 2019 to 2020 New South Wales bushfires.
The offender had fraudulently lodged eight online applications for grants during a period of approximately two months. He successfully acquired six grants of $10,000 each, namely a total of $60,000. The unsuccessful attempts were for a grant of $20,000 and a second attempt for a grant of $10,000.
The aggregate sentence which was imposed after a 25% discount for the plea of guilty was 3 years with a non-parole period of 2 years.
There was no appeal against the severity of the sentence per se. The difficulty which had arisen with the sentence imposed in the District Court was that the offender was already serving a sentence of 4 years imprisonment with a non-parole period of 2 years and 3 months. The fresh sentence, and the commencement date selected for it by Walmsley SC DCJ, led to a situation where the combination of the sentences left the offender Harris with an overall non-parole period which was a ratio of 80% of the effective overall head sentence.
Beech-Jones CJ at CL (as his Honour then was), Yehia and Weinstein JJ agreeing, found that the sentencing judge had erred, "either in the fixing of the commencement date, the selection of the non-parole period or both."
Whilst finding no error in the determination of the indicative sentences, the Court of Criminal Appeal adjusted both the head sentence and the non-parole period and also the commencement date of the sentence. The sentence imposed was for 2 years and 10 months with a non-parole period of 18 months. When combined with an adjusted commencement date and the sentence already being served the new sentence would expire one month earlier than that originally imposed but the offender would be eligible for release on parole five months earlier. This had the effect of adjusting the ratio of the combined non-parole period (43 months) to the combined head sentence (59 months) to just under 73%.
O'Brien v R [2022] NSWCCA 234 was yet another matter in which charges of dishonestly obtaining a financial advantage by deception included the total amount of multiple obtaining's with respect to separate identified victims. The charges were, and I again describe it as a sensible approach in those matters, "rolled-up" charges.
O'Brien had represented himself as a qualified tradesman on a website designed to put tradespeople in touch with customers needing their assistance. In fact, he was no such thing. He purported to complete home repairs and renovations that were, in truth, seriously defective and in some cases involved rectification works which cost hundreds of thousands of dollars.
There were seven identified victims, ultimately leading to seven charged offences to which he pleaded guilty.
Three were dealt with as substantive offences for sentence contrary to s 192E(1)(b) while the four further similar offences were placed on two Form 1 documents.
The matter involved substantial loss to the victims, most of whom were elderly and vulnerable. One victim lost her home because of the financial ruin which was occasioned by the offender's crime. The sentencing judge, Ingram SC DCJ, took into account that the offender did not receive all of the sums set out in the charges, but was merely part of a team of criminals.
Noting that the quantum referred to in the indicative sentences should accordingly be moderated somewhat, the indicative sentences by reference to the overall amounts obtained were as follows: one count involving $276,300, taking into account a similar offence involving $50,000 on a Form 1 - an indicative sentence of 3 years and 9 months; a count involving $438,180 - an indicative sentence of 3 years and 9 months; and a count involving $30,000, taking into account a Form 1 involving $17,500 - an indicative sentence of 1 year and 10 months.
The aggregate sentence imposed was a head sentence of 5 years and 6 months with a non-parole period of 3 years and 6 months.
An appeal against the severity of the sentence imposed was dismissed.
With respect to the offences of knowingly dealing with the proceeds of crime contrary to section 193(2) of the Crimes Act 1900 (NSW), I have had regard to the "blunt instrument" of the Judicial Information Research System (JIRS) statistics. I have also read a number of decisions pursuant to this section including Roiss v R [2022] NSWCCA 25; Lou v R [2021] NSWCCA 120 and a number of District Court first instance judgments which relate to the same section.
With respect to the offences under s 192J, the JIRS statistics are of such a limited number as to not be of any great assistance. I have looked at two cases dealing with offending under this section; Ishaq v R [2023] NSWCCA 178 and R v Rahman [2019] NSWDC 868.
With respect to offences pursuant to s 93T(4A) of the Crimes Act 1900, the JIRS statistics are similarly very limited. They relate to only eight cases. The criminal groups referred to in such cases as are reported include groups such as an outlaw motorcycle gang (R v Dyson [2023] NSWCCA 132); a group involved in prostitution and drug supply (Li v R [2023] NSWCCA 112); and a group involved in drug supply on the Central Coast (R v Cotterill [2019] NSWDC 913).
Each of those matters turn on their own facts.
[11]
CONSIDERATION
I have earlier indicated an acceptance of the Crown's submissions regarding objective seriousness. Whilst included in a table which will be annexed to these Remarks, the requirements of open justice require me to provide an indicative sentence with respect to each of the substantive matters in the proceedings before me for sentence. I again repeat that this somewhat tedious task could well have been ameliorated to a considerable degree by a considered and sensible "rolling up" of charges.
The criminal conduct involved by each offender in the joint criminal enterprise to defraud the state government in the scheme set up to benefit members of the community who required urgent relief during the continuation of the COVID-19 pandemic was an abuse by them of the system of economic relief instituted by the government. The criminality involved is similar to abuses of other government schemes including the Bush Fire Scheme and the Commonwealth Social Welfare System.
Notwithstanding the sentencing regime being very different, the words of Sir Laurence Street in Regina v Van Tung Luu (NSWCCA unreported 7 December 1984) remain apposite. Street CJ, Lusher and Roden JJ agreeing, said:
"The courts of this State have uniformly sought to make plain to persons who abuse the system of social welfare that they must expect to face heavy penalties. The introduction into the administration of that system of overly meticulous preliminary checks before benefits are paid could result in real hardship to persons whose need for benefits is urgent and immediate. Thus it is that such susceptibility is open to abuse, which results in persons who do abuse it receiving salutary penal consequences at the hands of the courts."
Such observations from as long ago as 1984, remain appropriate with respect to the provision of emergency funds in circumstances such as the bushfire grants and the payments during COVID with which the present case is concerned.
Factors described as being of universal application in fraud matters which have been identified as influencing the assessment of the gravity of the offending include:
1. The amount of money involved and whether the loss is irretrievable;
2. The length of time over which the offences are committed;
3. The motive for the crime;
4. The degree of planning and sophistication; and
5. Any accompanying breach of trust.
In the present matter the individual amounts of money with respect to the applications are not substantial. Attention will need however, to be paid the overall defalcation. With respect to the unsuccessful applications, regard will need to be made to the different maximum penalty flowing from the selection of the offence charged. The offending conduct with respect to the applications took place over a period of five weeks. Other offending conduct occurred during 2022.
The motive in each case can be described succinctly as greed in order to fund gambling and drug use.
Whilst not particularly sophisticated, the offending conduct clearly involved a degree of planning and some level of sophistication in the utilisation of stolen identities and identity information. The lack of sophistication in some instances is demonstrated by the use of details of the offenders themselves. The current matters do not, however, involve a breach of a position of trust.
The Crown tendered (Exhibit #3) material relating to co-offenders who have been dealt with in the Local Court. In the Crown's written submissions, the significantly lesser degree of criminality and role of the co-offenders dealt with in the Local Court was submitted to mean that the principles of parity do not have particular relevance. I agree with that submission with respect to the offenders who were dealt with in the Local Court by way of Intensive Correction Orders. However, I do note that Darryl Arnold was sentenced after pleading guilty to a variety of charges bearing some similarity to the conduct and offences presently before this Court. Arnold was sentenced in July 2023 at Newtown Local Court to 4 years imprisonment with a 3 year non-parole period. An appeal to this Court has not yet been concluded. The question of parity does however clearly arise as between the two offenders before this Court.
The 25% discount will apply to each of the indicative sentences.
The indicative sentences are as follows: [His Honour read the indicative sentences set out in the attached Table].
I have careful given consideration to the question of totality and the need for a substantial level of concurrence with respect to various of the individually charged offences. I do not find special circumstances to warrant a departure from the statutory ratio with respect to the fixing of a non-parole period. With respect to Ms Kosseifi, after going into custody, she has been serving a sentence during her time in custody bail refused for the present matters with regard to an offence which occurred whilst she was in custody relating to the bringing in of drugs to the correctional institution. I will take that matter into consideration in determining an appropriate start date for the sentence which I am about to impose.
Margaret Kosseifi, you are convicted in relation to the matters to which you have pleaded guilty. I have taken into account on the substantive offences to which they attach the matters which you have asked me to take into account on the various Form 1 documents.
You are sentenced to a term of imprisonment of 4 years 6 months. There will be a non-parole period, with a slight rounding down of the statutory ratio, of 3 years and 4 months.
I take into account that the sentence imposed with respect to the offence committed while you were in custody was 12 months with a non-parole period of 9 months, commencing on 19 October 2023. That sentence is still current.
After giving consideration to the principle of totality, I propose that the sentence which I have imposed should be delayed in its commencement for a period of four months after you went into custody. This will give appropriate consideration to the separate offending which occurred with respect to the drugs being taken into the gaol.
Accordingly, the head sentence and non-parole period will commence on 22 October 2022. The non-parole period will expire on 21 February 2026 and the additional term of 14 months will expire on 21 April 2027.
Danyal Sousan, you are convicted with respect to each of the matters to which you have pleaded guilty. I have taken into account on the substantive offences to which they attach the matters in respect of which you have acknowledged your guilt on various Form 1 documents.
You are sentenced to a term of imprisonment of 4 years. I specify a non-parole period of 3 years.
The sentence and the non-parole period will be backdated to commence when you went into custody on 22 June 2022. The non-parole period will accordingly expire on 21 June 2025. The additional term will expire on 21 June 2026.
Annexure - Indicative sentences table (229216, rtf)
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Decision last updated: 10 April 2024