R v Saab

Decision: For sequences 1, 2, and 3 (Commonwealth offences), an aggregate term of imprisonment of 3 years to date from today and to be served by means of an intensive corrections order.
For sequence 4 (State offence), a term of imprisonment of 2 years to date from today and to be served by means of a (separate) intensive corrections order.

Catchwords: CRIMES - SENTENCE - providing personal identification information with the intention it would be used to commit, or facilitating the commission of, the offence of obtaining a financial advantage from a government entity by deception - assisting the commission of the offence of, by a deception, dishonestly obtaining a financial advantage from Services Australia by supplying personal identification information - assisting the commission of the offence of receiving money reasonably suspected of being proceeds of crime - misconduct in a public office.

Legislation Cited: Commonwealth Criminal Code: ss 372.1A(1), 134.2(1), 11.2(1), 400.9(1A); Crimes Act 1914 (C’th): ss 16A(2AAA), 16A, 20AB; s66 of the Crimes (Sentencing and Procedure) Act 1999 (NSW)

Cases Cited: Merheb v R [2024] NSWCCA 145; Bugmy v The Queen [2013] HCA 37; DPP (Cth) v De La Rosa [2010] NSWCCA 194, Vamadevan v The King [2024] NSWCCA 223, Stanley v DPP [2023] HCA 3

Category: Sentence

Parties: Rex (Crown)
Selina Saab (Offender)

Representation: Mr Jordan (Commonwealth Crown Prosecutor)
Mr Karim, later Mr Lloyd KC with Mr Karim, later Mr Lloyd KC (for the offender)

File Number(s): 2023/325254; 2024/99824

Publication restriction: Nil

JUDGMENT

1. Selina Saab, you appear for sentence today in relation to the following four offences.

2. First, one contravention of s372.1A(1) of the Commonwealth Criminal Code (“sequence 1”). The maximum penalty for sequence 1 is imprisonment for 5 years.

3. Secondly, one contravention of the combined operation of sections 134.2(1) and 11.2(1) of the Commonwealth Criminal Code (“sequence 2”). The maximum penalty for sequence 2 is imprisonment for 10 years.

4. Thirdly, one contravention of the combined operation of sections 400.9(1A) and 11.2(1) of the Commonwealth Criminal Code (“sequence 3”). The maximum penalty for sequence 3 is imprisonment for 2 years.

5. Fourthly, one (NSW) common law offence of misconduct in a public office (“the common law offence”). The penalty for the common law offence is at large. Nevertheless, the Crown fairly conceded in [64] of the document entitled “Outline of Crown Submissions on Sentence” that “…the reference point for the NSW common law offence is less than 7 years.”

6. Between 1 March 2021 and 8 November 2021, you worked as a customer concierge operator for Service NSW.

7. In that role, you had access to important personal identification information held by Service NSW including names, addresses, dates of birth, driver’s licence numbers, and passport numbers.

8. Between July and November 2021, you assisted Mr Salim Merheb to make claims to Services Australia for Commonwealth benefits by providing Mr Merheb with such personal identification information obtained through your position at Service NSW.

9. The Commonwealth benefits that Mr Merheb obtained from Services Australia using the personal identification information provided by you to him were: Australian Government Disaster Recovery Payments; Australian Government COVID-19 Payments; and the Pandemic Leave Disaster Payments. As to how these various schemes operated, I refer to, and incorporate by reference, pages 2 to 7 inclusive of the remarks on sentence of Hanley SC DCJ delivered on 11 December 2023 when his Honour sentenced your co-offender, Mr Merheb – a sentence which was not disturbed on appeal (see Merheb v R [2024] NSWCCA 145).

10. An agreed summary of the facts concerning sequence 1 is that, between about 21 July 2021 and 9 November 2021, you sent 77 Snapchat messages containing personal identification information to Mr Merheb which related to 49 real persons, intending that Mr Merheb would use that personal identification information to commit, or facilitate the commission of, offences of obtaining a financial advantage from a government entity by deception.

11. Although you provided Mr Merheb with that information for that purpose, he did not use it to commit an offence.

12. An agreed summary of the facts concerning sequence 2 is that, between about 23 July 2021 and 15 December 2021, you assisted the commission of Mr Merheb’s offence of, by a deception, dishonestly obtaining a financial advantage from Services Australia. You assisted Mr Merheb by supplying him with personal identification information concerning 19 real persons in the form of at least 26 Snapchat messages, which Mr Merheb used to make 23 false claims for Commonwealth benefits in the amount of $31,050.00.

13. An agreed summary for the facts concerning sequence 3 is that, between about 23 July 2021 and 15 December 2021, you assisted the commission of Mr Merheb’s offence of receiving $30,500.00 reasonably suspected of being proceeds of crime. You assisted Mr Merheb by supplying personal identification information relating to 17 real persons in the form of 32 Snapchat messages, which Mr Merheb used to make claims for Commonwealth benefits to Services Australia which are reasonably suspected of being false.

14. An agreed summary of the facts concerning the common law offence is that, by providing these various tranches of personal identification information to Mr Merheb, you engaged in misconduct in a public office.

15. Your offending ended in about mid-December 2021.

16. On 3 November 2022, a search warrant was executed at your home; and later that day, you were arrested.

17. On 23 January 2023, your employment with Service NSW was terminated.

18. The sentence hearing, however, was not conducted exclusively on agreed facts. There were significantly contested facts which gave rise to a protracted sentence hearing.

19. The disputed facts were, in part, identified in the agreed statement of facts at paragraphs 26 and 27:

“26. It is agreed that there is insufficient evidence to establish that [you] agreed with Merheb to receive a benefit.

27. As a disputed fact on sentence, the Crown contends and [you] dispute that:

(a) [you] must have had some expectation or hope of reward from Merheb; and

(b) [you] received an amount of money from Merheb although it is accepted that the quantum cannot be determined” (emphases added).

As these disputed facts are in the nature of matters in aggravation, the onus is on the Crown to prove them beyond reasonable doubt.

20. In addition to that discretely formulated dispute in the agreed statement of facts, there also arose, in your subjective case, the hotly disputed issue of non-exculpatory duress. As this disputed fact is one in the nature of mitigation, the onus is on you to prove it on the balance of probabilities.

21. However, as I shall seek to explain, the dispute as to facts identified in the agreed statement of facts and the dispute as to facts raised in your subjective case are, to an extent, interrelated.

22. The basis of the non-exculpatory duress claim is best articulated in paragraph 11 of the report Dr Chew (a consultant general and forensic psychiatrist) dated 30 July 2024 (being tab 5 of Exhibit 1):

“11. [Ms Saab] was able to give a coherent account of the offending behaviour. She said that Merheb was the boyfriend of her best friend Bella. She said that she was extremely close to her best friend and they saw each other every day. She said that he was extremely abusive to Bella. She said that Bella had had terminations of pregnancy and he used this as blackmail to mistreat Bella “I’ll tell your parents.” She said that he forced her [i.e., Ms Saab] to get the IDs as he knew she worked for Service NSW and had threatened to tell Bella’s parents about the abortions and to tell [Ms Saab’s] parents that she had been sexually active with her boyfriend / fiancé. She said that while he had offered her money along the way, she had never taken any and had only been motivated by fear of Merheb exposing her to her parents and fear for Bella. She said that she knew right from the start that what she was doing was wrong and it made her riddled with guilt and “hung like a cloak over my head”. She said that at the time she felt forced into it. She said she has had no contact with Bella or Merheb since the charges.”

23. This issue was referred to, or found support, in other documents.

24. First, the sentencing assessment report dated 17 May 2024. In that report, the author recorded a history (provided by you) that you had been forced to supply the information to Mr Merheb against your will; that Mr Merheb had threatened to release personal information about your private life if you did not comply. The author recorded that your declining mental health, leading up to the offending, led you to being susceptible to emotional manipulation.

25. Secondly, an affidavit from your grandmother, Ms Grace Zaffaroni, made 12 July 2024. Ms Zaffaroni was not cross-examined on that affidavit. Through it, there is evidence that you struggled with series of abusive relationships; and that your father had been “very hard” on you.

26. Thirdly, an affidavit of your mother, Rita Saab, made 12 July 2024. Your mother was not cross-examined on that affidavit. In her affidavit, your mother gave evidence that your father was “very tough” on you, and that he was both verbally aggressive and physically rough. She gave an example that he would keep you in your room for days without being allowed out if you had displeased him. Your mother also gave evidence that she had witnessed Mr Merheb being aggressive towards your friend Bella, and she had also observed his physical aggression.

27. Finally, your own affidavit which was made 31 July 2024 and upon which you were extensively cross-examined. The following three paragraphs are particularly relevant in this present context:

“4. I’m extremely ashamed of the charges that are against me, and truly disgraced that I am before the Court for this. I want to explain that I did not do these offences for the purpose of gaining some personal advantage for myself. I was very scared of what Salim would do if I didn’t do what he told me. Salim was my friend’s partner, and since she and I were so close, it meant I was around her partner a lot. I tried to resist doing as he demanded however he made threats to me that he would tell my father certain things about me that would get me into trouble.

5. As I was around Salim a lot, I witnessed so many arguments between him and Bella, and I saw how aggressive he would become when he would not get his way. He would explode into a rage and start becoming very violent; I have seen him start hitting things in the car, smash her phone and push her. Bella and Salim were together for 3 years, and overtime the situation would just get progressively worse, with Salim becoming increasingly more aggressive towards her and the people around him. It was constant arguments and fights over small things, many of which I was witness to. At one stage, Salim had revealed personal information about Bella to her family which got her into a lot of trouble. That is why when Salim threatened me with the same thing, I knew that it was something that he would do. Salim began to become more friendly with my family as well, which I believe was to show me that he had the opportunity to reveal my personal life to them at any given moment. Salim would intimidate me by standing over me and constantly trying to snatch my phone or hit my car. It was a constant stress every time I was around him as I worried he would hit me or do something to harm me, however every time I tried to get away from him, he would threaten me again.

6. My father is very strict, and I have endured a lot of abuse from him over the years. Had he found out the things Salim was threatening to tell him, the situation would have escalated, and I would have been kicked out of my home. My dad kicked me out numerous times in the past so I knew it was a real possibility that it would happen again. I was so terrified of that possibility that I ended up doing what he was telling me to do as I did not really feel I had a choice. Because I was so traumatised from how my dad would treat me when I was younger, I try to avoid upsetting him in anyway and the mere idea of this was enough to scare me into doing what Salim asked.”

28. As I have just said, you were cross-examined at length about that aspect of your affidavit with the terms of the many recorded communications between you and Mr Merheb.

29. At face value, your claim for non-exculpatory duress is inconsistent with the terms of those communications.

30. In your cross-examination, you, in substance, said you had to express yourself in the way you did on those occasions in order to keep Mr Merheb onside (my word) – see, for example, T38:42-49, 13 September 2024. That explanation is not implausible and receives some support from the unchallenged evidence of your mother and grandmother. There was one particular point in your cross-examination where your evidence was particularly persuasive (T58:25-38, 13 September 2024).

31. One matter which did cause me some concern in assessing the reliability of your evidence concerning Mr Merheb’s asserted coercive behaviour was your ability to recall, with precision and specificity, events which had occurred over three years before your oral evidence on 13 September 2024 (see T83:11-84:24, 13 September 2024).

32. Another matter which caused me some concern in assessing the reliability of your evidence concerning Mr Merheb’s asserted coercive conduct was your sworn denial that you received any money for your role in this criminal offending. In order to continue to keep Mr Merheb onside, however, it does seem to me to be implausible, in light of some of the recorded comments between you and Mr Merheb (see, for example, your evidence at T24:25-25:22, 13 September 2024), that you refused to take – or did not receive - any money for your involvement in this criminal activity. In the result, and contrary to your sworn evidence, I am satisfied, beyond reasonable doubt, that you did receive some payment - but, as the agreed statement of facts note, the Crown is unable to prove the amount of money received and I do not speculate about that topic adversely to your interests.

33. I note for completeness that, although Mr Merheb was given a 10 per cent discount for future assistance off his sentence by Hanley SC DCJ when his Honour imposed a sentence on Mr Merheb on 11 December 2023 (which future assistance included giving evidence if required by the Crown), the Crown did not call him to give evidence in these proceedings that your assertions concerning his coercive behaviour towards you was not true.

34. Having reflected on the matter after reviewing all of your oral evidence, I am (just) satisfied, on the balance of probabilities, that you did act as you did because of the coercive behaviour of Mr Merheb - behaviour that amounts to non-exculpatory duress.

35. This finding has the following effect. Each of you and Mr Merheb alleged that the other was the “driving force” (again, my word) in the offending.

36. The Crown does not appear to have challenged Mr Merheb on that assertion in his sentencing proceedings. The Crown has unsuccessfully challenged that assertion in your sentencing proceedings.

37. Accordingly, Mr Merheb was sentenced, and you will be sentenced, on the basis that the other was the “driving force” of the offending.

38. This is not an uncommon feature of sentence proceedings where the sentencing of co-offenders: takes place at different times; before different judges; on different facts; and often on different charges.

39. It is necessary for the Court to form an opinion as to the objective seriousness of each offence for an offence of its kind. In my opinion, each offence is approximately equidistant between the middle and the bottom of the range.

40. I have already referred, to an extent, to your subjective circumstances. This is a topic to which I now return.

41. You were born in August 1999 and you are, therefore, 25 years old.

42. You had a particularly difficult upbringing as a child as a result of your father’s verbal and physical abuse towards you. It was a dysfunctional upbringing within the meaning of Bugmy v The Queen [2013] HCA 37, leading to a reduction in your moral culpability and reducing, to a modest extent, the full application of the sentencing principle of general deterrence – a principle which has particular significance for offences such as these which are easy to commit but hard to detect.

43. The physical abuse “settled down” by the time you were in late adolescence; and the verbal abuse ceased in your very early 20s. But you have always remained wary of your father, especially on the issue of your personal relationships.

44. Apart from issues with your father, you otherwise have good and supportive relationships with your mother and your two siblings and their children.

45. You had a motor vehicle accident in late 2021 which resulted in chronic neck and low back pain, as well as PTSD, anxiety and depression.

46. In his report, Dr Chew diagnosed you with:

(a) complex post-traumatic stress disorder – which was a combination of repeated developmental trauma (at the hands of your father) as well as the motor vehicle accident; and

(b) persistent depressive disorder.

Dr Chew expressed the opinion that these conditions were causally connected with your offending.

47. Dr Chew was cross-examined at the instalment of the sentencing hearing on 16 December 2024. Nothing in that cross-examination causes me to doubt the contents of his report.

48. The conditions which Dr Chew has diagnosed are ongoing and give rise to De La Rosa considerations (see DPP (Cth) v De La Rosa [2010] NSWCCA 194) – and further reduce, to a modest extent, the full application of general deterrence.

49. You left school in Year 10 and have been in continuous employment since that time. At the time of the sentencing hearing on 13 September 2024, you were employed as the receptionist at Quantum Radiology. Ms Dona is the practice manager; and she made an affidavit on 12 July 2024 which was read on your behalf at that instalment of the sentencing hearing. In that affidavit, Ms Dona stated that she was fully aware of your offending and that you had been “very upfront and honest” with her about that. She speaks very favourably about you in the affidavit. Ms Dona was not cross-examined on her affidavit.

50. You have no issues with illegal drugs, alcohol or gambling.

51. You have only one prior offence and that is a driving matter. I shall extend to you the leniency which, in appropriate circumstances, can be extended to a first offender (especially a young one) – although, the extent of that leniency is somewhat diminished by the period of time over which the offending occurred.

52. I accept that you are genuinely remorseful for your offending.

53. As I have already mentioned, general deterrence is somewhat reduced because of your reduced moral culpability because of your dysfunctional upbringing and De La Rosa considerations – but it is still relevant.

54. However, specific deterrence is fully engaged, as is the need to encourage your rehabilitation (cf Crimes Act 1914 (C’th) section 16A(2AAA)).

55. On the topic of rehabilitation, I regard your prospects as being good. In this context, I note that, in the sentencing assessment report, you were assessed at a low risk of reoffending. I also note and accept the evidence of Dr Chew where, in his report (at [33]), he noted that full time imprisonment would impede your prospects of receiving appropriate psychological treatment and would exacerbate your underlying mental condition.

56. You entered early pleas of guilty. I shall relevantly reduce each sentence by 25 per cent because of those early pleas.

57. Looked at globally, the three Commonwealth offences on the one hand and the one (State) common law offence on the other hand were, in substance, one course of offending and, as a deliberate act of leniency, the sentences will, by reference to totality, in effect, be totally concurrent. There should be, however, some accumulation in relation to the Commonwealth offences as between themselves.

58. That being said, given the seriousness of the offending, the only appropriate sentence for each offence is a period of imprisonment – and so much was conceded on your behalf by your counsel in written submissions.

59. Insofar as the three Commonwealth offences are concerned, I shall impose one aggregate sentence.

60. It is necessary for me to state the indicative sentences underpinning that aggregate sentence. The discount of 25 per cent will be applied to each indicative sentence.

61. In fixing those indicative sentences, I have had regard to parity. In this context, I express my gratitude to the “Comparative table” prepared by your counsel in the written submissions I have already referred to. I have also had regard to the helpful written submissions in [81] to [87] in the “Outline of Crown Submissions on Sentence”.

62. In relation to sequence 1, except for the discount, the indicative sentence would have been imprisonment for 1 year 6 months. After the discount, the indicative sentence is imprisonment for 1 year 1 month.

63. In relation to sequence 2, except for the discount, the indicative sentence would have been imprisonment for 2 years 8 months. After the discount, the indicative sentence is imprisonment for 2 years.

64. In relation to sequence 3, except for the discount, the indicative sentence would have been imprisonment for 8 months. After the discount, the indicative sentence is imprisonment for 6 months.

65. In the result, for sequences 1, 2 and 3, I sentence you to an aggregate term of imprisonment of 3 years to date from today.

66. Pursuant to sections 16A and 20AB of the Crimes Act 1914 (C’th), and noting that in that Act “…there is no statutory obligation upon the sentencing court to give particular weight to one or other of the identified purposes in sentencing certain kinds of offender” (cf Vamadevan v The King [2024] NSWCCA 223), I order that that term of imprisonment be served by means of an intensive corrections order.

67. In relation to the (State) common law offence, except for the discount, I would have sentenced you to a term of imprisonment of 2 years 8 months. After the discount, the term of imprisonment is 2 years.

68. Pursuant to section 66 of the Crimes (Sentencing and Procedure) Act 1999 (NSW) and noting that “community safety must be the paramount consideration when the sentencing court is deciding to make an intensive correction order in relation to the offender” as that was explained in Stanley v DPP [2023] HCA 3, I order that that sentence also be served by means of a separate intensive corrections order which is also to date from today.

69. Each intensive corrections order is subject to the following conditions:

(a) you must not commit any offence;

(b) you must be subject to supervision by a Community Corrections officer;

(c) you must comply with the treatment plan recommended by Dr Chew at [36] of his report; and, to that end, you must attend upon a general practitioner with a copy of that report within 14 days of today and take all steps that you are advised by that general practitioner to implement that plan; and

(d) you are to report in person to the Bankstown Community Corrections office by 4:00pm, Wednesday, 9 April 2025.

70. If you fail to comply with the conditions of these orders, sanctions may be imposed by the State Parole Authority. Those sanctions may include a formal warning; the imposition of more stringent conditions; or it may involve the revocation of these orders. If the orders are revoked, you may be required to serve all or some of the period of your sentences in full-time custody.

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Amendments

11 April 2025

First name removed from the case name