R v Samani [2016] ACTSC 257

CRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - Judgment and Punishment - Sentence - Particular Offences - fraudulent conduct - obtaining financial advantage by deception - producing false or misleading documents - administration of justice offences - obstructing or hindering investigation - pleas of guilty - no prior convictions - significant degree of planning and premeditation - general deterrence relevant factor - term of imprisonment imposed.

Magistrates Court Act 1930 (ACT), s 90B

Road Transport (Third-Party Insurance) Act 2008 (ACT)

R v Aldridge [2016] ACTSC 335

R v Fairburn (Unreported, Supreme Court of the ACT, Refshauge J, 27 February 2012)

R v Warden (Unreported, Supreme Court of the ACT, Higgins CJ, 16 November 2006)

SCC 114 of 2016, SCC 115 of 2016

1. Daryoush Samani, you have pleaded guilty to the following six offences:

(a) one offence of dishonestly obtaining a financial advantage between 4 May 2014 and 31 July 2015, which is charge CC15/9793, and I note that I will refer, for convenience, to the Magistrates Court charge numbers;

(b) one offence of attempting to dishonestly obtain a financial advantage between 4 May 2014 and 31 July 2015, which is charge CC15/9764;

(c) one offence of being knowingly concerned in another dishonestly obtaining a financial advantage between 4 May 2014 and 31 January 2015, which is charge CC16/3226;

(d) one offence of being knowingly concerned in another's attempt to dishonestly obtain a financial advantage between 4 May 2014 and 31 January 2015, which is charge CC16/3225;

(e) one offence of knowingly producing a false or misleading document to another in compliance or purported compliance with a territory law between 20 May 2014 and 7 June 2014, which is charge CC15/3224; and

(f) one offence of obstructing or hindering an investigation by a law enforcement officer on 17 September 2015, which is charge CC16/3223.

2. You had pre-arranged a motor vehicle accident in order to make an insurance claim to cover medical expenses to treat a pre-existing injury to your knee. You involved your nephew and your brotherinlaw in this pre-arranged accident, which was staged on 5 May 2014. A compulsory third party claim was lodged by you and also by your nephew.

3. The maximum penalty for the offence of dishonestly obtaining a financial advantage contrary to s 332 of the Criminal Code 2002 (ACT) (the Criminal Code) is 10 years imprisonment, a fine of $140,000, or both. The maximum penalty for the offence of obstructing or hindering an investigation by a law enforcement officer contrary to s 725 of the Criminal Code is six months imprisonment, a fine a $7,000, or both. The maximum penalty for knowingly producing a false or misleading document in compliance or purported compliance with a territory law contrary to s 339 of the Criminal Code is one year imprisonment, a fine of $14,000, or both.

4. On 29 April 2016, you pleaded guilty in the Magistrates Court to the six charges which are now before this Court. Your pleas were entered at the fifth mention stage in the Magistrates Court. On 16 December 2015, you first appeared before the Magistrates Court by summons where you were charged in relation to CC15/9764 and CC15/9793. The matter was adjourned to 11 January 2016 and on that date a plea of not guilty was entered. A full brief of evidence was prepared and the matter was adjourned to 1 March 2016 for a case management hearing.

5. On 1 March 2016, the four remaining charges were laid. All six charges were adjourned to 11 April and on that date the matter was further adjourned to 29 April 2016. On 29 April 2016, you entered a plea of guilty to all six charges in the Magistrates Court, and on 27 May this year you were committed to this Court for sentencing. On that date charges CC16/3223 and CC16/3224 were transferred to this Court as related offences under s 90B of the Magistrates Court Act 1930 (ACT).

6. I note that after you and your nephew lodged third party insurance claims the compulsory third party insurer accepted liability for your injury and approved an estimated payout in your case of $85,560. This is the basis of the charge CC15/9764, the charge of attempting to dishonestly obtain a financial advantage. It is not alleged that you were aware of the insurer's estimated payout figure, but the figure is relevant as demonstrating that there was potential for you to make a significant financial gain and for the insurer to incur an equivalent loss. As things transpired, the insurer only paid out $838.50 for your claim before your fraud was uncovered. This is the basis of the charge of dishonestly obtaining a financial advantage, charge CC15/9793.

7. With respect to charge CC16/3225, the charge of being knowingly concerned in another's attempt to dishonestly obtain financial advantage, you assisted your nephew to submit an insurance claim following the accident. The claim asserted that your nephew had sustained injuries, including to his hearing, as a result of the accident. You were aware that your nephew did not sustain such injuries from the accident.

8. The insurer accepted liability for your nephew's injuries. You were aware that the insurer had approved your nephew's insurance claim. NRMA approved an estimated payout figure to your nephew of $63,000. Again, it is not alleged that you were aware of the insurer's estimated payout figure, but again it is relevant as demonstrating that there was potential for a significant financial advantage to be obtained by your nephew and for a similar loss to be incurred by the insurer.

9. With respect to charge CC16/3226, the charge of being knowingly concerned in another dishonestly obtaining a financial advantage, the insurer paid out $74.50 in relation to your nephew's claim. The last payment was made by the insurer on 29 January 2015. You were aware that the insurer had begun to pay out money in relation to your nephew's claim.

10. With regard to charge CC16/3224, the charge of knowingly producing a document that is false or misleading in compliance or purported compliance with a territory law, in late May 2014 paperwork was completed and submitted to the insurer to support your compulsory third party claim. One of the documents submitted was a motor accident medical report. That document is required to be provided by a claimant to the insurer for the purposes of claiming insurance under the provisions of the Road Transport (Third-Party Insurance) Act 2008 (ACT).

11. On 27 May 2014, you signed and dated the motor accident medical report, and in doing so you endorsed that the information in the document was true and accurate. In that report you positively indicated that you did not have any preexisting injury to any part of your body that was made worse by the accident. The front page of the report contained instructions clearly stating that all information about preexisting injuries that are exacerbated by the accident must be disclosed as well as any other prior injuries that were not exacerbated by the accident. You failed to disclose anywhere in the document or otherwise that you had a preexisting injury to your knee. At the time of completing the report you had no difficulties reading, writing or understanding English. That report was submitted to support your insurance claim.

12. With regard to charge CC16/3223, the charge of obstructing or hindering an investigation by a law enforcement agency, on 17 September 2015 you first participated in a digital record of interview with police. You were cautioned and advised of your rights. You acknowledged that you understood the caution that anything you said could be used as evidence against you. In the interview, police advised you that they were investigating the circumstances surrounding the collision involving you on 5 May 2014. On more than one occasion throughout the interview you denied having any involvement in organising the accident and denied that the accident had been pre-arranged. During the interview, police played lawfully intercepted telephone calls between you and a lawyer, SB, where you both discussed a pre-arranged accident and an insurance claim.

13. Police also showed you a copy of SB's signed statement about a prearranged accident and you claiming insurance. After hearing the lawfully intercepted call recordings and seeing SB's signed statement, you continued to deny to police that the accident had been pre-arranged. You also denied having any preexisting injury to your knee prior to the accident. These offences were uncovered because of conversations lawfully intercepted and recorded between yourself, your nephew and SB, a lawyer with whom you were friendly.

14. After the recorded interview with police on 17 September 2015 you participated in a further interview with police the next day, 18 September 2015. In that second interview you told police that you had a preexisting injury to your knee from participating in martial arts and fighting competitions over a number of years. The injury had developed over time and was causing you pain. You said that there was a long waiting list to have surgery in a public hospital and you could not afford surgery at a private hospital. You told police that you arranged to be involved in a car accident so that you could submit an insurance claim to cover the medical expenses to have surgery to your knee.

15. You asked your nephew and your brotherinlaw to help you with your plan so that you could make a claim to cover the medical costs for surgery to your knee. Both your nephew and brotherinlaw indicated that they did not want to do anything wrong, but they were willing to help you so that you could claim compensation for your knee.

16. You told police that both your nephew and your brotherinlaw had trusted you when they agreed to help you. You described your nephew as an innocent person who just wanted to help you as his uncle. At the time of these events, your nephew had recently moved to Australia and had limited understanding of English, while your brotherinlaw was in Australia visiting your family. You told police that there was a car accident on 5 May 2014 whereby you asked your nephew to apply the car brakes so that your brotherinlaw's car would hit the rear of the car that your nephew and you were driving in. You told police that you accepted that you were responsible for the entire incident.

17. Objectively the offences before this Court are serious offences. You planned the offences for a period of at least eight months before you committed them. The offences were therefore clearly premeditated. You involved two other people in these offences, family members who apparently became involved because they wanted to help you. You, however, were the principal offender.

18. You stood to gain a significant financial advantage by participating in this fraud. Whilst your principal motive may have been to have your knee repaired quickly in a private hospital, you clearly stood to gain an even greater financial advantage. In that regard, it is important to note that you maintained your claim for damages after your knee was repaired in September 2014 until at least September 2015. You only desisted after your offences were detected.

19. Your counsel submitted to me that after your knee was repaired in September 2014, which I note was, in any event, undertaken in a public hospital, you were afraid that your lawyers would charge you fees if you instructed them to withdraw your claim. Whatever may have been the truth about your motive for continuing with the claim, you clearly did so and stood to gain a significant financial advantage.

20. In determining the objective seriousness of these offences it is also important to note that you facilitated a claim by your nephew which you knew to be false. There was also a degree of sophistication involved in these offences in that you engaged lawyers to act on your behalf in prosecuting your fraudulent claim. I also take into account that this offending continued for more than 12 months.

21. I would describe the offence of dishonestly obtaining a financial advantage (CC15/9793), as in the lower range of such offences, bearing in mind the amount which was paid out by the insurer. I would describe the offences of attempting to dishonestly obtain a financial advantage (CC15/9764), and being knowingly concerned in another's attempt to dishonestly obtain a financial advantage (CC16/3225), and the offence of producing a document that is false or misleading in compliance or purported compliance with a territory law (CC16/3224), as being in the midrange of such offences. Finally, I would assess the offences of being knowingly concerned in another dishonestly obtaining a financial advantage (CC16/3226), and the charge of obstructing or hindering an investigation by a law enforcement official (CC16/3223) as at the lower end of such offences.

22. A PreSentence Report was prepared for the sentence hearing. You are 38 years old and you have no prior convictions. You are married with a two-year-old daughter and you live in stable accommodation. You have good relations with your siblings. You are a well educated man with postgraduate qualifications and you are also in employment. There are no drug or alcohol issues that need to be addressed. You have no relevant physical or mental health issues.

23. The author of the Report expressed the opinion that you accepted responsibility for your offending and you expressed remorse. You accepted that the offences were premeditated. The author of the Report assessed you as at low risk of general reoffending. You were assessed as suitable for a community service order.

24. I accept that you ultimately made full admissions to police, but this was after you originally denied the offences and after you were confronted with the cogent evidence police had in their possession. I accept that you have demonstrated some remorse in your dealings with police and also ACT Corrective Services. I also accept that your pleas demonstrate a degree of remorse and also had significant utilitarian value.

25. I am satisfied that you have good prospects for rehabilitation. I must nevertheless make it clear that I regard these as serious offences, particularly the charges of attempting to dishonestly obtain a financial advantage (CC15/9764), the charge of being knowingly concerned in another's attempt to dishonestly obtain a financial advantage (CC16/3225), and the charge of knowingly producing a false document (CC16/3224).

26. Offences involving insurance fraud, or attempted insurance fraud, are not victimless crimes. Where such offences succeed, the whole community pays through increased premiums. Such offences also make it more difficult for deserving cases to access benefits in a timely manner, because insurers become wary of fraudulent claims.

27. Even where such offences do not succeed there is an increased cost to the insurer occasioned by the need to process and scrutinise claims. In addition, such offences are relatively easy to commit but difficult to detect. All of these circumstances speak of the need for general deterrence in sentencing for this type of offending.

28. I was provided by the Crown with a number of prior decisions of this Court in sentencing for this or similar offences. In R v Aldridge [2016] ACTSC 335 the offender pleaded guilty to one offence of causing a personal injury claim to be made on his behalf with the intention of dishonestly obtaining a financial gain from the Australian Capital Territory. This was an offence under s 333(1) of the Criminal Code and incurred a maximum penalty of five years imprisonment. The sentencing judge found that the decision to make the claim was relatively spontaneous. The offender was 25 years old at the time, came from a background of disadvantage and neglect and had commenced drug use at an early age. He had a lengthy criminal history but was considered to have good prospects for rehabilitation. He was sentenced to 22 months imprisonment.

29. In R v Fairburn (Unreported, Supreme Court of the ACT, Refshauge J, 27 February 2012) the offender was sentenced to six months imprisonment for one offence of attempting to obtain a benefit by deception. The offence involved an attempted insurance fraud with the offender arranging for cooffenders to take his vehicle so that he could claim that it had been stolen and then make an insurance claim. The offender was 43 years old and had a limited criminal history. He gained nothing by the crime. The sentencing judge considered the offence to be premeditated but also unsophisticated.

30. Finally, in R v Warden (Unreported, Supreme Court of the ACT, Higgins CJ, 16 November 2006) the offender was sentenced to 12 months imprisonment fully suspended for an offence of dishonestly obtaining a financial advantage. The offence involved the offender making a fraudulent insurance claim after setting fire to a car which he had leased. The offender had promised cooperation to the authorities in the absence of which the sentencing judge indicated that some period of fulltime imprisonment would have been imposed. Whilst I am grateful to the Crown for drawing my attention to these cases, they do not, in my opinion, demonstrate any settled pattern of sentencing for offences of this type.

31. A sentence of imprisonment is a sentence of last resort such that it is not to be imposed if some lesser sentence would be adequate to address the requirements of sentencing. In the present matter, I gave close consideration to whether a fully suspended sentence of imprisonment with a substantial community service order would be appropriate, but I have determined that it is not. A fully suspended sentence of imprisonment involves significant leniency compared to a sentence that must be served in whole or in part by way of a fulltime term of imprisonment. The deterrent effect of a wholly suspended sentence is likewise significantly less than a sentence that involves fulltime imprisonment.

32. In my opinion, the importance of general deterrence in sentencing for offences of this type calls for a sentence that involves at least some period of fulltime imprisonment. The present offences should be seen as effectively a single course of conduct. Many of the offences have common elements so that a substantial degree of concurrency is called for. I must also apply the principle of totality, which will also result in significant concurrency with respect to the sentences which I will impose.

33. With respect to the first charge (CC15/9793), you are convicted and sentenced to five months imprisonment which I have reduced from seven months to reflect your plea of guilty, commencing today, 9 August 2016 and expiring on 8 January 2017.

34. With respect to the second charge (CC15/9764), you are convicted and sentenced to 22 months imprisonment, which I have reduced from 28 months for you plea of guilty, commencing today, 9 August 2016 and expiring on 8 June 2018.

35. With respect to the third charge (CC16/6223), you are convicted and sentenced to four months imprisonment, which I have reduced from six months for your plea of guilty, commencing on 9 April 2018 and expiring on 8 August 2018.

36. With respect to the fourth charge (CC16/3225), you are convicted and sentenced to 22 months imprisonment, which I have again reduced from 28 months in order to reflect your plea of guilty, commencing on 9 February 2017 and expiring on 8 December 2018.

37. With respect to the fifth charge (CC16/3224) you are convicted and sentenced to four months imprisonment, which I have reduced from five months because of your plea of guilty, commencing on 9 February 2017 and expiring on 8 July 2017.

38. With respect to the sixth charge (CC16/3223), you are convicted. In my opinion, this matter does not require or call for a sentence of imprisonment. There will be a Good Behaviour Order for a period of three months, commencing today, 9 August 2016. I acknowledge that in the light of the other sentences which I have imposed that that really is an ineffective sentence.

39. The aggregate sentence which I have imposed is therefore one of two years and four months imprisonment, commencing today, 9 August 2016 and expiring on 8 December 2018. I order that the period commencing on 9 August, 2016 and expiring on 8 February 2017 be served by way of fulltime imprisonment with the balance suspended. There will be Good Behaviour Orders on each of those charges for a period of two years from 9 February 2017.

40. In the light of the contents of the PreSentence Report, which does not suggest that there are any issues that require the intervention of Corrective Services, I will impose no further conditions with respect to those Good Behaviour Orders.

I certify that the preceding forty [40] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns.