Ghadban v R [2018] NSWDC 543

District Court New South Wales

Medium Neutral Citation: Ghadban v R [2018] NSWDC 543 Hearing dates: 29 January 2018 Date of orders: 29 January 2018 Decision date: 29 January 2018 Jurisdiction: Criminal Before: Bennett SC DCJ Decision: (1) Allow the appeal (2) Vary the head sentence to one of 15 months which consists of a non-parole period of 7 months Catchwords: JUDGMENTS AND ORDERS — Amending, varying and setting aside — District Court Legislation Cited: Crimes Act 1900 Crimes Sentencing (Procedure) Act 1999 Category: Principal judgment Parties: Majed Ghadban (Appellant) Director of Public Prosecutions (NSW) (Respondent) Representation: Elie Rahme (solicitor for the Appellant)

Anthony Strik (solicitor for the Respondent) File Number(s): 2017/00177680 Decision under appeal Court or tribunal: Local Court Jurisdiction: Criminal Date of Decision: 04 December 2017 Before: McAnulty LCM File Number(s): 2017/00177680

REVISED EX TEMPORE JudgEment 1. Majed Ghadban has appealed from a sentence of imprisonment imposed by a magistrate in the Local Court at Liverpool on 4 December 2017 where he pleaded guilty to an offence contrary to s 192E(1)(b) Crimes Act 1900, the particulars of which are that he dishonestly obtained a financial advantage or caused a disadvantage by deception, the victim being NRMA Insurance Limited. 2. The offence occurred between 30 May 2015 and 28 October 2016, an extended period. He was sentenced to imprisonment for 15 months with a non-parole period of nine months to date from 29 October 2017 which correctly represented that pre-sentence custody should have commenced the sentence on 21 October 2017. He is eligible for his release to parole therefore on 20 July 2018. 3. The circumstances of the offence are that he was a participant in a joint criminal enterprise with others whereby collisions were orchestrated with a view to making false insurance claims for personal injuries and property damage. The appellant was involved in only one of these events that were orchestrated by principal offenders who are the subject of proceedings in respect of which the appellant has met the criteria specified in s 23 Crimes Sentencing (Procedure) Act 1999 justifying a significant discount together with the discount he has earned by way of his plea of guilty. There is ample evidence upon which the Court can accept contrition and remorse and rehabilitation. Although I have not heard from the appellant the material before me is sufficient to satisfy the requirement that I should not bring to account aspects of contrition without evidence upon which to conclude that it has been established: S 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. 4. The subject collision was on 30 May 2015 allegedly; in fact there was no collision. Vehicles were damaged to make it appear or to represent that a collision had occurred. The proposition advanced was that the driver of the vehicle in which the appellant was driver was struck by another vehicle in breach of the road rules. The occupants of the vehicles involved in this collision numbered nine; the appellant and his daughter and his sister were occupants of the vehicle he was driving. There was also a property damage claim. The total exposure from all these claims if they had been accepted and established was more than $500,000. 5. It is important to note that the offence with which this offender was charged and upon which sentence was imposed was sequence 6. According to the facts sheet that was the offence involving the property damage claim of $2,400. The claim was not lodged by the appellant but he was acquiescent in the submission of a claim by one Al Jezai. 6. At this point in the delivery of the ex-tempore judgement I sought clarification of the extent of the misconduct alleged of the appellant. The Crown advised, without demur on behalf of the appellant: * The total amount of the loss that would have been suffered from the property damage and personal injury claims extended to $570,000. * The Crown relied upon s 344A Crimes Act 1900 upon the premise of the attempt to commit the offence. 1. Returning to the text of the judgement: the potential loss was $570,922. There was in fact no loss. Although that is a matter that must be brought to account had this criminal enterprise been pursued through to finality, that is the extent of the loss that would have been suffered and was the purpose of the enterprise. 2. I accept that the role of the appellant was as an instrument of the fraud, that he was not a principal, and that he was one of the necessary components of the fraud which to succeed required somebody with the capacity to demonstrate symptomatology that could be used to persuade medical practitioners to offer an opinion upon injury and disability arising from the alleged event. 3. Thus the role that he performed in this enterprise was to be the driver of the motor vehicle carrying his sister and daughter, and to acquiesce in the representation that the vehicle was involved in a collision and thereby damaged. 4. He attended upon a doctor on 16 June 2015. A motor accident personal injury claim form was lodged on his behalf on 18 June 2015 listing injuries of whiplash to the neck, to the left buttocks and lower back, and psychological consequence. The doctor's certificate attached to that claim form. The property damage claim was lodged on 31 May 2015 by the co‑offender. 5. There are discrepancies referred to in the Summary of Facts when the various reports are compared one against the other. 6. On 27 October 2016 there was a telephone conversation intercepted in which he and his son-in-law and co-accused communicated; there was another between the appellant and his sister. In the conversation between the appellant and another member of the enterprise at a higher level the appellant is heard to express what were clearly anxieties about the process and what he might have to say. He was encouraged by the person with whom he spoke. 7. There was a further medical examination on 28 October 2016 when the appellant attended with his sister. He provided the doctor with information regarding the purported collision and the injuries suffered. 8. There was a telephone conversation intercepted after that attendance where he spoke to the other member of the enterprise to whom I referred. The appellant expressed his concerns about whether he had answered questions correctly. He was encouraged in respect of the responses he provided to the doctor. 9. Ultimately he was arrested on 14 June 2017. He attended the police station, he participated in an interview. He initially provided a false story continuing the false representation of the collision and consequent injuries. The police then presented various pieces of information and evidence which prompted him to abandon his lies and tell the truth. He told the police that he needed money; he was approached by the principals in the enterprise and they recruited him to participate in the fraud. He was promised a payout of between $10,000 and $15,000 from which $1500 would be taken back for services. His sister and daughter attempted to withdraw from the enterprise a year before but were faced with a bill of $2500 to covers legal fees that had been incurred up to that time. When they could not fund those fees they continued with their claim. 10. Co-accused have been arrested and interviewed. There is an indication here that one of them has pleaded guilty but as I understand what was said to me today their pleas have been traversed and the proceedings are being continued as a defended hearing in which the appellant will be giving evidence. 11. The appellant participated in a second interview in which he provided further assistance together with an undertaking that he will give evidence. 12. He was born in 1962, he is now 56 years of age. He has no prior antecedents. He came to this country from Iraq, he has had the misfortune of experiencing the conflict in that country. He had some military service there it appears. He was assessed for the purposes of an intensive corrections order that was found unsuitable. There is medical evidence speaking to his physical and psychological challenges which I accept. It is conceded that he has crossed the line at s 5 Crimes (Sentencing Procedure) Act 1999 but I am persuaded that the sentence as presently structured is more severe than is warranted in the circumstances including the contrition, remorse, the rehabilitation, and the matters to which s 23 Crimes (Sentencing Procedure) Act 1999 are relevant, to which I have referred and which in this case I find are significant. 13. The Crown argues against the resort to home detention as a sentencing option, although it would be expected that he will if assessed be likely to be found suitable. I agree that general deterrence has a significant role to play in this case. It is the fact that this type of crime cannot be tolerated. In another life when I was a member of the New South Wales Bar, fraudulent motor vehicle personal injury claims such as this caused significant difficulties for the community and had their role to play in the reorganisation of third-party insurance claims and ultimately the introduction of the present system. 14. I propose to allow the appeal. I will not replace the sentencing at present with home detention but I will reduce the non‑parole period. In my view the circumstances of this case warrant the sentence to be expressed in the following terms: a non-parole period of 7 months to commence on 21 October 2017 to expire on 20 May 2018, the head sentence remaining at 15 months to expire on 20 January 2019. 15. I should note that I do not have a document as one might expect in these cases from the officer-in-charge providing evidence of the value of the assistance, but I accept on the material presented that it is of a high order. Mr Rahme carefully provided me with a chronology from the bar table of the occasions when it was anticipated and when it is anticipated the appellant will be called upon to attend court. 16. My order is that the appeal be allowed. 17. I vary the sentence or imprisonment imposed to the following: I specify a non-parole period of 7 months to commence on 21 October 2017 expiring on 20 May 2018 with a further period of imprisonment to commence at the expiration of the non-parole period and expire on 20 January 2019. The appellant is to be released to parole at the expiration of the non-parole period; the parole will be supervised in accordance with the regulations and the legislation under which they are made, and it will be a matter for parole authorities to identify the needs extant at that time.