Crimes Act 1900 (NSW), s192E(1)(b)
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
Crimes Act 1900 (NSW), s192E(1)(b)
Category: Sentence
Parties: Regina (Crown)
Judgment (2 paragraphs)
[1]
Yousef Zreika you appeared before the Court on 27 April 2021 at which time you were arraigned on an indictment which contained four counts and, in relation to each count, you pleaded guilty.
However, at an earlier time, you had been committed for sentence from the Local Court in relation to those matters.
It was necessary for you to be arraigned on 27 April 2021 because of some perceived difficulties in the manner in which the court attendance notices had been processed in the Local Court.
I should say, Mr Zreika, that the manner in which that process was dealt with has caused considerable confusion and difficulties for the registry staff and my staff. Initially, for example, what is now count 1, consisted of sequences 4, 5, 6, 7, 8, all the way through to 38. When the matter was ultimately processed, sequence 4 contains all of those matters. The JusticeLink processing has been extremely difficult and time consuming. I can only encourage the parties to avoid such administrative nightmares for the Court in the future.
The indictment to which you pleaded guilty (as I say) contained four counts.
The first count on the indictment, which is otherwise known as sequence 4, alleged that, by deception, you dishonestly obtained a financial advantage from the Commonwealth of Australia.
The second count on the indictment, which is otherwise known as sequence 39, alleged that by deception, you attempted to dishonestly obtain a financial advantage from the Commonwealth of Australia.
The third count on the indictment, otherwise known as sequence 56, alleged that, by using false identities, you intended to dishonestly obtain a gain from the Commonwealth of Australia.
Finally the fourth count on the indictment, otherwise known as sequence 73, alleged that you intentionally dishonestly obtaining a gain from the Commonwealth of Australia.
The statutory provisions which are contravened by the four counts on the indictment are respectively: ss134.2(1), 11.1(1), 134.2(1), 135.1(1) and 135.1(1) of the Commonwealth Criminal Code. The maximum penalty for each offence is 10 years imprisonment.
In connection with the principal offence which is count 1 (sequence 4) you have asked the Court to take into account seven matters on a s 16BA schedule which I have certified. The matters on that schedule are sequences 70, 71, 72, 74, 75, 76 and 77. Each of those matters on that schedule is either attempt or obtaining financial advantage or forging documents.
In addition to all of these matters, you have also consented to the Court dealing with a matter on the equivalent of a s166 certificate. That is sequence 3, namely dishonestly causing a financial disadvantage to an entity. This matter involves a contravention of s 192E(1)(b) of the Crimes Act 1900 (NSW). The maximum penalty for that offence, if prosecuted in the District Court, is ten years imprisonment or if prosecuted in the Local Court, two years imprisonment. And it is understood that you will be sentenced on the basis that it could have been dealt with summarily.
The facts surrounding all of these somewhat complicated offences are contained in a statement of facts and can be summarised by me as follows.
At the end of 2019, this country endured its worst natural disaster in the history of European settlement of the country. Bushfires raged out of control from the west coast to the east. Many lives were lost. Enormous amounts of bushland were destroyed. Homes and businesses were burnt to the ground and many of our fellow citizens were brought to their knees, financially and emotionally. And you deceitfully, dishonestly, took advantage of the rescue package which the Commonwealth Government put in place, funded by taxpayers, for the purpose of bringing swift relief and assistance to the tens of thousands of Australians who were adversely affected by those fires.
You put together, as I shall indicate, a complicated, well thought out, and well prepared scheme of deception whereby you had took advantage of the generosity of the government. The government set up a scheme in which it made sure that people in need got money as quickly as possible without being tied up in red tape. But in doing so, the government made it easier for people such as you to take advantage of that generous scheme.
You created multiple identities. You opened numerous bank accounts and you obtained significant sums of money to which you were not entitled.
You were and are a profoundly dishonest man - not only in the preparation and carrying out of the schemes which I shall later describe, but in your conduct afterwards, as I shall now set out.
When you were arrested, you told the police a detailed story of about how you had been stood over by non-existent people to do this wicked thing. You told the police the names of the people who allegedly stood over you; how they had hit you; how they had beaten you. You identified some by name, some by description. You were even able to identify some people by the tattoos on their legs and/or the motor vehicles they drove. Apparently, one drove his mother's car for the purpose of assaulting you.
It was all a lie.
When you were interviewed by the author of the Sentencing Assessment Report, 12 months after you had told these lies to police, you repeated them. You said on your oath, when you were in this courtroom last, that after you told the lies to the police, you were "eaten up by guilt" at what you had told them. So eaten up by guilt were you, that 12 months later, you repeated those lies to the author of the Sentencing Assessment Report - knowing that the document was to come before a judge of this Court.
Even then your lies did not stop.
When you were on your oath, you said that you had made up those stories of intimidation in the 15 minutes between when you were arrested and when you were interviewed by the police. You said that on your oath. And it too was a lie, as you subsequently admitted.
The circumstances surrounding the particular matters for which you will be sentenced today can be summarised in the following way.
The Disaster Relief Fund, set in place by the Commonwealth Government, provided for fixed amounts of payments of $1,000 to eligible claimants.
Between 16 January 2020 and 16 April 2020, you made 35 false claims and received 35 times $1,000 for your lies. You went to considerable lengths in doing so. You created 32 completely false identities with bank statements and the like. In addition to the 32 completely false identities which you created, you stole the identities of three people - two of whom have provided victim impact statements to the Court to show exactly how damaged they have been, knowing that you, using their names, made false claims.
In addition to the 35 successful false claims that you made, between 17 February 2020 and 23 April 2020, you attempted another 17 claims. Again, all using false or assumed identities.
In the period 7 February 2020 to 15 May 2020, you continued your scheme of dishonesty and you intended making 14 additional claims using fabricated or assumed personalities.
Your dishonesty was not limited to these three tranches of offences involving the Bushfire Disaster Relief Fund, because between 5 February and 1 April 2020 you made two false claims for JobSeeker payment and a false claim for the NewStart Allowance. If you had been successful, you would have achieved almost $5,600 on top of the $14,000, $17,000 and $35,000 which were involved in your earlier schemes.
In addition to this dishonesty, the details of which are contained in the agreed statement of facts, you also made a false claim for rental assistance for some premises in Leumeah to which you were not entitled.
And on 5 May 2020, continuing your pattern of dishonesty, you sought accommodation at the Hermitage Hotel in Campbelltown, purporting to be an employee of the Department of Family and Community Services, telling the hotel that a person (Yousef Zreika) was in crisis and needed two nights' accommodation. You stayed at that hotel for two nights. You were not an employee of the Department of Family and Community Services and that hotel has been deprived of its proper income.
In total you have actually been paid $36,213.74 from the Commonwealth to which you were not entitled.
In terms of their objective seriousness for offences of their kind: sequence 4 is just below the mid-range; sequences 39 and 56 are somewhere equidistant between the middle and the bottom of the range; sequence 73 is towards the bottom of the range; and sequence 3 (the State offence) is at the bottom of the range.
What is even more extraordinary, Mr Zreika, is that after you were arrested on 30 April 2020 and were granted bail, you committed some of these offences. You offended on 5 May, 6 May, 13 May and 15 May 2020, all whilst on bail.
You are 35 years old.
That is one of the few facts about which I can be comfortably satisfied.
You have the onus of proving any fact in mitigation on the balance of probabilities. Unless you are able to call any independent evidence to corroborate anything you say, I do not accept anything you have said. You have proven history of dishonesty, which includes lying on oath.
A psychologist's report was tendered on your behalf which you intended would be read by a judge of the Court. In it you gave a version of events about your background which you expected the sentencing judge to accept.
It is interesting to note that, in conducting the interview, the psychologist did not just record what you told her. She also conducted tests in which she noted that you "might have over-endorsed answers to the questionnaire items". And she therefore said that the results "Should be interpreted with caution".
You told the psychologist of what appeared to be a difficult upbringing. You told her about discipline inflicted on you by your father. You told her about the difficulties that you had had in the home of your parents because of your same-sex relationships and other confronting matters.
Why would I believe anything you told the psychologist unless it was independently corroborated? The answer to that question is, I do not. You lied to obtain a substantial financial benefit. You lied to the police. You lied to the author of the sentencing assessment report. You lied on your oath.
Your father was sitting in this courtroom on the last occasion. He did not get in the witness box to tell me how he reacted to your alleged same-sex relationships.
Neither of the two men, allegedly former partners referred to in the psychologist's report, came to Court and went into the witness box to say it was true that you had a relationship with them.
The only person who got in the witness box (apart from you) was your sister. And her evidence was far from helpful to you.
In her written reference, she described you as her "Best friend and brother". She said that the offending that brings you to court today was "out of character". She made no reference to your prior convictions of dishonesty. She made no reference to your long-term alleged drug use problems. She made no reference to you being gay or any conflict within the family as a result.
At p 14 of the transcript of the last occasion, I drew to your counsel's attention the fact that your sister made no reference in her written reference to your prior criminal history - in the context of her saying that the current chargers were out of character. And your counsel (undoubtedly on instructions) said she became only aware of that criminal history on that day, the day you were last here, 27 April 2021.
When you gave evidence on that day you said that you disclosed a lot of things to your sister; that you had a very good bond with her; and that you had a very close relationship. And you said in your cross-examination that she had known of your drug use for a very long time. And that she was aware of your 2015 conviction of dishonesty.
Your sister said in her oral evidence that, so far as she was aware, you had no other offences apart from the ones that were here today. In other words she did not know of the 2015 offence. And in relation to your sworn evidence that she had known of your drug use for a long time (transcript p 38) she said (at transcript 42) she could not recall if you had told her you were addicted to drugs.
Your sister's evidence therefore provides no effective corroboration for anything that you have said. In fact, it further undermines your reliability as a witness.
I am not satisfied on the balance of probabilities that you had a dysfunctional upbringing. I am not satisfied that you were beaten by your father because you were gay. I am not satisfied of any of the exculpatory material you have advanced, either directly to me in the witness box or indirectly to the psychologist.
What I am satisfied about beyond reasonable doubt is that you are compulsive liar and profoundly dishonest person who will say anything and do anything to advance his position.
I am not persuaded that you are genuinely remorseful for your misconduct - although you may be sorry at the position you find yourself in, but they are two different things.
It is said that you have long-term drug problems. There is no evidence to support that, apart from what you say.
I regard your prospects of rehabilitation as being poor.
It would seem that shortly before you committed these offences, you held a responsible position with the NDIS. You therefore had access to vulnerable people. Fortunately, your employment with that organisation has come to an end. It is to be hoped that you have no access to such vulnerable people again.
Crimes such as these are easy to commit, they are difficult to detect and, when an offender like you is caught, the Court ought to impose a sentence which will discourage others from doing what you have done. General deterrence is therefore fully engaged.
Because of your persistent dishonesty over a long period of time, it is necessary for the Court to impose a sentence that will also discourage you from reoffending, therefore specific deterrence is fully engaged.
And in the circumstances prospects of rehabilitation have lesser (although some) significance.
No sentence other than a period of full-time imprisonment is appropriate for the four counts on the indictment.
In relation to the State matter, sequence 3, because of the penalties I shall impose for the matters on the indictment, a conviction is recorded but no penalty will be imposed pursuant s 10A of the Crimes Sentencing Procedure Act.
I am going to impose an aggregate sentence and therefore it is necessary for me to state the indicative sentences underpinning the aggregate sentence.
Before turning to those indicative sentences, I acknowledge that you pleaded guilty at an early opportunity, but that was in the face of a very strong Crown case. You will receive a 25% discount off the indicative sentences.
In relation to sequence 4, and taking into account the seven matters on the 16BA schedule (which matters require a meaningful increase for the sentence for the principal offence), except for your plea of guilty, the indicative sentence would have been imprisonment of four years six months. After the discount of 25%, the indicative sentence for sequence 4 is three years four months.
In relation to sequence 39, except for your plea of guilty, the indicative sentence would have been to imprisonment for two years and eight months. After the discount of 25%, the indicative sentence is two years imprisonment.
In relation to sequence 56, except for your plea, the indicative sentence would have been two years six months. Because of the plea of guilty, the indicative sentence is one year ten months.
In relation to sequence 73, except for your plea, the indicative sentence would have 14 months imprisonment. Because of the plea of guilty, the indicative sentence is ten months.
I have taken totality into account and have partially accumulated the various indicative sentences.
You are therefore sentenced to an aggregate term of imprisonment of four years six months.
I fix a non-parole period of three years imprisonment, to date from 4 June 2020 and which will expire on 3 June 2023.
There is a balance of one year and six months from 4 June 2023 to 3 December 2024.
[2]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 28 July 2021