The Commissioner of the Australian Federal Police v Omar [2021] NSWSC 366

Supreme Court New South Wales

Medium Neutral Citation: The Commissioner of the Australian Federal Police v Omar [2021] NSWSC 366 Hearing dates: 8 October 2020 Date of orders: 14 April 2021 Decision date: 14 April 2021 Jurisdiction: Common Law Before: Beech-Jones J Decision: (1) Pursuant to section 47 of the Proceeds of Crime Act 2002 (Cth) the property listed against the First Defendant in the Schedule be forfeited to the Commonwealth; (2) Pursuant to section 47 of the Proceeds of Crime Act 2002 (Cth) the property listed against the Second Defendant in the Schedule be forfeited to the Commonwealth; (3) Pursuant to section 47 of the Proceeds of Crime Act 2002 (Cth) the property listed against the Third Defendant in the Schedule be forfeited to the Commonwealth; (4) Pursuant to section 47 of the Proceeds of Crime Act 2002 (Cth) the property listed against the Fourth Defendant in the Schedule be forfeited to the Commonwealth; (5) Pursuant to section 47 of the Proceeds of Crime Act 2002 (Cth) the property listed against the Fifth Defendant in the Schedule be forfeited to the Commonwealth; (6) Pursuant to section 47 of the Proceeds of Crime Act 2002 (Cth) the property listed against the Sixth Defendant in the Schedule be forfeited to the Commonwealth; (7) Pursuant to section 47 of the Proceeds of Crime Act 2002 (Cth) the property listed against Al-Namal Family Day Care Scheme Pty Ltd in the Schedule be forfeited to the Commonwealth; (8) Pursuant to s 116(1) of the Proceeds of Crime Act 2002 (Cth), Mohammad Omar pay to the Commonwealth a pecuniary penalty of $13,003,011.30; (9) Pursuant to s 116(1) of the Proceeds of Crime Act 2002 (Cth), Ibrahim Omar pay to the Commonwealth a pecuniary penalty of $12,139,179.65; and (10) The Commissioner of the Australian Federal Police file and serve any submission on costs within 14 days hereof and that submission not exceed four pages. Catchwords: PROCEEDS OF CRIME – forfeiture proceedings – civil penalties – defendants perpetrated fraudulent childcare benefit scheme – whether licences to operate childcare centres or receive childcare benefit procured by fraud – whether childcare benefit procured by false data – satisfied offences committed – forfeiture order made – assessing value of the benefit derived from commission of offence – entire childcare business conducted for purpose of fraudulently obtaining childcare benefit Legislation Cited: A New Tax System (Family Assistance) Administration Act 1999 (Cth) Children (Education and Care Services) National Law Act 2010 (NSW) Children (Education and Care Services) Supplementary Provisions Regulation 2012 (NSW) Children (Education and Care Services) Supplementary Provisions Regulation 2019 (NSW) Criminal Code Act 1995 (Cth) Education and Care Services National Law Act 2010 (Vic) Evidence Act 1995 (Cth) Proceeds of Crime Act 2002 (Cth) Cases Cited: Briginshaw v Briginshaw (1938) 60 CLR 336; [1938] HCA 34 Commissioner of AFP v Omar [2020] NSWSC 418 Commissioner of AFP v Omar [2020] NSWSC 1944 King v R (1987) 1 QB 547 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563; [1995] HCA 68 R v Ghosh [1982] QB 1053 R v Ho (1989) 39 A Crim R 145 R v Hunt; ex parte Sean Investments Pty Ltd (1979) 180 CLR 322 Category: Principal judgment Parties: The Commissioner of Australian Federal Police (Plaintiff) Ibrahim Omar (First Defendant) Mohammad Omar (Second Defendant) Surpass Australia Pty Ltd (Third Defendant) Interactive Workforce Solutions Pty Ltd (Fourth Defendant) Teach Australia Group Pty Ltd (Fifth Defendant) Panacea Enterprises Pty Ltd (Sixth Defendant) Representation: Counsel: G O'Mahoney; K Petch (Plaintiff) No Appearance (Defendants)