Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Zreika v R [2022] NSWCCA 262 Hearing dates: 7 October 2022 Date of orders: 9 December 2022 Decision date: 09 December 2022 Before: Mitchelmore JA at [1] Davies at [2] Hamill J at [95] Decision: 1. Grant leave to appeal. 2. Uphold the appeal in respect of the aggregate sentence. 3. Quash the sentence imposed in the District Court on 8 June 2021. In lieu, sentence the appellant to an aggregate sentence of 3 years and 6 months' imprisonment commencing 4 June 2020 and expiring 3 December 2023 with a non-parole period of 2 years and 3 months expiring 3 September 2022. The appellant is now eligible for parole. Catchwords: Crime – Appeals – Appeal against sentence – aggregate sentence for fraudulent conduct offences – dishonestly attempting to obtain a financial advantage by deception – dishonestly obtaining financial advantage by deception - dishonestly intending to obtain a gain from a Commonwealth entity – ss 134.2 and 135.1 of the Criminal Code 1995 (Cth) – manifest excess – where amounts involved were relatively small - where offending occurred over relatively short period of time and generally employed unsophisticated methods – where aggregate sentence manifestly excessive Crime – Appeals – Appeal against sentence – whether sentencing judge's intervention in course of evidence of applicant was excessive – where credibility of applicant was serious issue – where interventions appropriate – where no appearance of bias of pre-judgment Legislation Cited: Crimes Act 1900 (NSW) s 192E Crimes Act 1914 (Cth) s 16BA Crimes (Sentencing Procedure) Act 1999 (NSW) s 10A Criminal Code (Cth) ss 134.2, 135.1, 145 Criminal Procedure Act 1986 s 166 Cases Cited: Ellis v R [2015] NSWCCA 262 Finnigan v R [2022] NSWCCA 181 Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 R v Ryan [2002] NSWCCA 202; (2003) 141 A Crim R 403 Rami Mohamad v Regina [2005] NSWCCA 406 Zaky v R [2015] NSWCCA 161 Zaky v R (Cth) [2017] NSWCCA 141 Texts Cited: Nil Category: Principal judgment Parties: Yousef Zreika (Applicant) The King (Respondent) Representation: Counsel: A Moutasallem (Applicant) A Chhabra & A Payten (Respondent) Solicitors: Millennium Lawyers (Applicant) Commonwealth Director of Public Prosecutions (Respondent) File Number(s): 2020/129091; 2020/139511 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: R v Zreika [2021] NSWDC 357 Date of Decision: 8 June 2021 Before: Colefax SC DCJ File Number(s): 2020/129091; 2020/139511 HEADNOTE [This headnote is not to be read as part of the judgment] The applicant pleaded guilty to four offences of fraudulent conduct contrary to the Criminal Code 1995 (Cth) (the Code). The applicant was sentenced in relation to two counts of offending contrary to s 134.2(1) of the Code, involving dishonestly attempting to obtain, and dishonestly obtaining a financial advantage by deception, and for two counts of dishonestly intending to obtain a gain from a Commonwealth entity contrary to 135.1(1) of the Code. The applicant was further sentenced for one count of dishonestly cause financial disadvantage to the Hermitage Hotel, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). A further seven offences were placed on a schedule pursuant to s 16BA of the Crimes Act 1914 (Cth). The applicant received approximately $36,000 from his offending that was successful. He attempted unsuccessfully to obtain other amounts totalling approximately $37,000. The applicant's offending occurred over a relatively short period of time, and generally employed unsophisticated methods. The applicant sought leave to appeal against his aggregate sentence of 4 years and 6 months' imprisonment with a non-parole period of 3 years. There were two key issues on the appeal: i. Whether the sentencing judge's intervention in the course of the evidence of the applicant was excessive; and ii. Whether the sentence was manifestly excessive Held (granting leave to appeal and upholding the appeal in respect of the aggregate sentence, re-sentencing the applicant to an aggregate sentence of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 3 months) per Davies J (Mitchelmore JA and Hamill J agreeing) 1. The sentencing judge's intervention occurred in circumstances where the credibility of the applicant was a serious issue. The intervention was to let the applicant know the sentencing judge's concerns and to give the applicant the chance to explain himself. This was an entirely appropriate course. Had the judge kept his concerns to himself, the applicant would have had a legitimate complaint. ([60]-[61]). (Davies J). 2. The applicant had given evidence which the sentencing judge said he had difficulty in accepting. The applicant then admitted, in an answer to questions from the judge, that he had lied. That does not constitute a miscarriage of justice. ([65]). (Davies J). 3. The interventions of the sentencing judge, arising as they did from answers given by the applicant, did not give any appearance of bias of pre-judgment. ([68]-[69]). (Davies J). Ellis v R [2015] NSWCCA 262; Finnigan v R [2022] NSWCCA 181, cited and considered. 4. The aggregate sentence was manifestly excessive. ([83]). (Davies J). 5. Each of the indicative sentences was reduced by 25% for the applicant's early plea. It is reasonable to infer that, had it not been for that discount accorded to the indicative sentences, the starting point for the aggregate sentence would have been higher than was imposed. ([81]). (Davies J). 6. An examination of the cases involving offences against s 134.2 demonstrates that, for the amounts involved in the present case, the relatively short period of the offending, and the generally unsophisticated methods employed, borne out by the applicant's failures to obtain the monies he attempted to obtain on so many occasions, the aggregate sentence imposed was manifestly excessive. ([81]). (Davies J). Zaky v R [2015] NSWCCA 161; Zaky v R (Cth) [2017] NSWCCA 141, considered. 7. In addition, the sentence judge recorded an indicative sentence for count 4 (attempted fraud involving $331) of 10 months' imprisonment. Had the accused been separately sentenced for this offence, it is unlikely a custodial sentence would have been imposed. That indicative sentence is likely to have affected the aggregate sentence. ([84]). (Davies J) Judgment 1. MITCHELMORE JA: I agree with Davies J. 2. DAVIES J: On 27 April 2021, the applicant pleaded guilty in the Local Court to the following offences: Count 1 (Sequence 4): Obtaining a financial advantage by deception contrary to s 134.2(1) of the Criminal Code (Cth) (Criminal Code). The maximum penalty for this offence is 10 years' imprisonment; Count 2 (Sequence 39): Attempt to obtain a financial advantage by deception contrary to s 134.2(1) of the Criminal Code; Count 3 (Sequence 56): Dishonestly intending to obtain a gain contrary to s 135.1(1) of the Criminal Code. The maximum penalty for this offence is 10 years' imprisonment; Count 4 (Sequence 73): Dishonestly intending to obtain a gain. 1. A number of other offences were placed on a s 16BA Schedule in respect of Count 1 as follows: Sequences 70, 71, 72 and 77: Attempt to obtain a financial advantage by deception contrary to s 134.2(1) of the Criminal Code; Sequences 74 and 75: Obtaining a financial advantage by deception; Sequence 76: Using a forged document contrary to s 145(1) of the Criminal Code. 1. A further offence of dishonestly causing a financial disadvantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) was placed on a certificate pursuant to s 166 of the Criminal procedure Act 1986 (NSW). 2. The applicant was sentenced by Judge Colefax SC on 8 June 2021 to an aggregate sentence of 4 years and 6 months' imprisonment commencing 4 June 2020 and expiring 3 December 2024 with a non-parole period of 3 years expiring 3 June 2023. In relation to the offence on the s 166 certificate, his Honour recorded a conviction but did not impose a penalty pursuant to s 10A of the Crimes (Sentencing Procedure) Act 1999 (NSW). 3. The applicant sought leave to appeal against the sentence imposed on the following two grounds: 1. The sentence imposed upon the applicant is manifestly excessive. 2. The learned sentencing judge erred in his assessment that specific deterrence was required to be fully engaged. 1. On the business day before the appeal was due to be heard the applicant filed, without leave, amended grounds of appeal together with amended submissions, adding the following grounds 3. That the sentencing judge erred at [49]-[50] in failing to find that the applicant had a dysfunctional upbringing and was beaten by his father because of his homosexuality. Particulars a. The applicant was denied procedural fairness in that the applicant's assertion of being homosexual and the difficulties he faced as a result were not challenged by the Crown, nor was the applicant put on notice by either the Crown or the sentencing judge that these assertions were in issue. b. The sentencing judge failed to have regard to evidence which corroborated the applicant's assertions. c. The sentencing judge failed to have regard to the evidence of the applicant father leaving Court on the day of the hearing due to a medical issue. d. The findings were not open. 4. The sentencing judge's intervention in the course of the evidence of the applicant was excessive. Particulars a. The interventions gave rise to a miscarriage of justice. b. The interventions were of such frequency and content that the applicant was denied procedural fairness. c. The questioning gave the apprehension of bias. 1. When the Court, at the hearing of the appeal, ascertained that the Crown did not oppose the amended appeal, leave was granted to the applicant to rely on the amended grounds of appeal. 2. During the course of the hearing of the appeal counsel for the applicant abandoned ground 2, accepting that it was a challenge only to the weight given to specific deterrence. The offending 1. Counts 1, 2 and 3 involved offending in relation to the Australian Government Disaster Relief Payment (AGDRP). The AGDRP was payable to eligible Australian residents who were adversely affected by a designated natural or non-natural disaster, whether within Australia or offshore. An AGDRP claim can be made via the telephone to Services Australia. 2. AGDRP is a one-off payment to the claimant and an additional amount for each dependent child per disaster. Given the nature of AGDRP as an emergency payment, it may be paid in instances where a claimant is unable to provide proof of identity documents at the time of the claim or proof of loss. Claimants are granted an AGDRP on the proviso that satisfactory proof of identity documents or verification is lodged within 28 days of the claim. 3. AGDRP is paid as a fixed amount of $1,000.00 for eligible claimants. 4. Count 1 involved 35 successful claims for payments of AGDRP between 15 January 2020 and 17 April 2020. In three cases, the applicant assumed the identity of another person and in the remaining cases he fabricated identities. 5. For each claim, the applicant called Services Australia, and induced an operator to believe that he was a person adversely affected by a natural disaster, namely, a bushfire in either New South Wales or in Victoria. The applicant gave a false narrative in support of each AGDRP claim, and provided an address at which neither he, nor the fabricated or assumed identity, resided. In the claims where the applicant fabricated an identity, he was not a person adversely affected by a bushfire. The fabricated identity did not exist, and could not have been adversely affected by a bushfire. 6. In the three claims where the applicant assumed an identity, the applicant was not a person adversely affected by a bushfire, nor was the person whose identity was assumed. 7. For each claim, the applicant dishonestly obtained a financial advantage. Each AGDRP of $1,000.00 was sent via electronic funds transfer to a bank account held in the name of the applicant, and where he was listed as the sole signatory. In total, he obtained a financial advantage of $35,000.00 from the offending. 8. Count 2 involved 17 unsuccessful claims for AGDRP made between 17 February and 23 April 2020. Again, the applicant either assumed or fabricated an identity. The claims were rejected because the applicant failed to provide sufficient identification details, and because proof of identity and proof of loss was not delivered to a Services Australia service centre. 9. Count 3 involved a further 14 claims for AGDRP where, although the applicant dishonestly intended to obtain a gain from the claims, he did not do so. 10. Count 4 involved a Covid-19 crisis payment. This was a new category of crisis payment introduced in response to the Covid-19 pandemic. The criteria for this crisis payment was that the claimant must be required to be in quarantine or self-isolation as a result of advice from, or a requirement made by, the Commonwealth, a state or territory, or a health professional regarding Covid-19, or was a person caring for an immediate family member or member of the claimant's household who was required to be in quarantine or self-isolation. 11. On or about 13 May 2020, the applicant accessed his own Services Australia account and lodged a claim for a JobSeeker payment with a claim for a Covid- 19 crisis payment. The applicant claimed that he was required to be in quarantine or self-isolation due to Covid-19 as at 6 May 2020. 12. The following day, the applicant called Services Australia to check on the progress of his claim. He was advised to upload proof online that he was eligible for the crisis payment. He uploaded a redacted document which purported to be a "public health order". The document was obtained from an ABC news article online published on 28 March 2020 entitled "Wrongly implemented coronavirus quarantine preventing medical staff treating patients, doctor says". 13. The applicant's claim was ultimately rejected. If successful, he would have obtained $331.55. 14. Sequences 70-72 on the s 16BA Schedule involved two claims for a JobSeeker payment and one claim for a Newstart Allowance by the applicant, using the fabricated identities he had previously used to make claims for AGDRP. The claims were rejected. If successful, the applicant would have obtained $5,597.10. 15. Sequences 74 and 75 on the s 16BA Schedule involved two claims for rental assistance arising from the Covid-19 pandemic. The claims involved two separate addresses, one in Currowan and the other in Leumeah. The applicant successfully induced two employees of Services Australia to believe that he was eligible for rental assistance. He did not reside at the addresses he claimed. He obtained rental assistance in the sum of $458.69. 16. Sequences 76 and 77 involved two fraudulent claims for Medicare benefits. Sequence 76 was constituted by a false claim the applicant lodged on 7 September 2019 where he uploaded an image of one itemised invoice from Australian Clinical Labs in respect of pathology services. The document was a false document to the applicant's knowledge. He was paid a Medicare benefit of $64.95 by electronic funds transfer into a nominated bank account. 17. Sequence 77 involved another claim the applicant made on 14 September 2019, also in relation to an alleged payment made to Australian Clinical Labs for pathology services. That claim was ultimately rejected because the applicant failed to provide a tax invoice or further details about the claim. If it had been successful he would have obtained $64.95. 18. The offence on the s 166 certificate involved the applicant purporting to be an employee from the Department of Family and Community Services. In this guise he called the Hermitage Hotel in Campbelltown on 5 May 2020. He claimed that Yusef Zreika was a person in crisis and required accommodation in a room at the Hermitage Hotel for two nights. The Department would on occasions arrange accommodation if a person in crisis was unable to return to their place of residence. 19. The applicant stayed at the premises for two nights without paying the amount owed for his stay. In that way he dishonestly caused the Hermitage Hotel a financial disadvantage of $512.60. Grounds of appeal 1. It is convenient to deal with the manifest excess ground at the conclusion of a consideration of the other grounds. Ground 3: Failing to make factual findings 1. In his Remarks on Sentence his Honour said: [39] 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. [40] 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. [41] 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. … [49] 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. [50] What I am satisfied about beyond reasonable doubt is that you are compulsive liar (sic) and profoundly dishonest person who will say anything and do anything to advance his position. 1. His Honour raised during sentence proceedings on two occasions about whether counsel for the applicant intended to call his client to give evidence. His counsel indicated that he was not. On the second occasion the sentencing judge said this: Your client's absence from the witness box is going to make the outcome difficult for him because even though she [the psychologist] wasn't required for cross-examination, the author of the psychologist's report has accepted as reliable the history given by your client in circumstances where I know he has a history of dishonesty, that is to say prior convictions of dishonesty, and I know that he lied to the police in the interviews he gave to them, and I know that he lied to the author of the sentencing assessment report in circumstances where your client knew that that report would be given to me. So, absent any corroborative material, I regard Ms Spatz's report as - not at the moment carrying much, if any, weight to the extent that her conclusions rely on your client's history, because he is just not reliable, he is just not honest. Now, do you want to think about where this matter goes? 1. After the luncheon adjournment on that day, counsel for the applicant indicated that he would call his client to give evidence. 2. The applicant submitted in this Court that the Crown did not cross-examine him to challenge his evidence regarding his troubled relationship with his father or his homosexuality. The applicant submitted that in that way he was denied procedural fairness because there was no "counter evidence" against his assertion that he was beaten by his father because of his homosexuality. 3. The applicant relied on a decision of this Court in Rami Mohamad v Regina [2005] NSWCCA 406 which in turn relied upon a statement of Grove J in R v Ryan [2003] NSWCCA 202; (2003) 141 A Crim R 403. In Ryan, the issue was whether the applicant had left the scene of an accident because he panicked. The applicant in the present case relied on what Grove J said at [29]: There was no counter evidence against the applicant's assertion nor was he put on notice by the Crown or by the presiding judge that his assertion was not to be accepted. The challenge to the approach disclosed in his Honour's reasoning is made good. 1. The sentencing judge in that case had refused to accept that the applicant had only departed the scene as a result of panic because it was said to be backed up only by hearsay assertions made by the applicant. 2. The significant difference in that case from the present was that it was the Crown who had tendered the statements of the police officers containing the hearsay statements. Having tendered them, the Crown did not give any indication that it did not accept what was contained in the material. 3. In a similar manner, in Rami Mohamad it was submitted in that case on behalf of the offender that the role of the offender in a gun trafficking charge was that only of a "go-between" assisting one of his friends. His Honour rejected that submission notwithstanding a concession from the Crown prosecutor that it was not in contest. Justice Hidden (giving a judgment of the Court) said at [14]: … it is important that a judge should voice any concern she or he has about it, so that it could be the subject of further argument and, if necessary, further evidence. In the present case, after the Crown prosecutor said that he did not contest the proposition that the applicant was acting as an intermediary, his Honour said no more than that Mr Odgers' task as the applicant's advocate was, to that extent, made easier. Mr Odgers then developed no further argument about the matter, no doubt assuming that it was resolved in his client's favour. 1. Both of those cases are far removed from the position in the present case. The issue, as the sentencing judge made clear from the outset, was the dishonesty of the applicant, and whether his evidence could be relied upon. 2. There was no evidence that the applicant was beaten by his father because of his homosexuality. The applicant had told Ms Anica Spatz, the psychologist, that his father physically disciplined and beat him until he was 14 years old. The first mention of the applicant being gay in the psychologist's report was in the following paragraph when the applicant said that at the age of 17 he moved out to live with his same sex partner. The psychologist recorded that the family strongly disapproved of that matter and "allegedly threatened violence towards Mr Zreika and his partner". It is not clear whether the threats of violence came from the applicant's father or any of his three brothers. 3. The applicant's evidence before the sentencing judge was that he only disclosed his sexuality to his father when he turned 17, at the time he told his family he was moving out of the family home. Nowhere in his evidence did he say that he was beaten by his father because of his homosexuality. 4. The applicant's counsel also called the applicant's sister to give evidence at the sentence proceedings. During the course of her examination in chief the sentencing judge asked her what the relationship was like between the applicant and their father when the applicant was 14 years old. She said that she did not recall. His Honour then asked if she recalled their father beating the applicant and she said she did. No further questions were asked about that by the applicant's counsel. 5. To the extent that the ground asserts that the sentencing judge erred in failing to find that the applicant was beaten by his father because of his homosexuality, the ground is misconceived. There was no such evidence. 6. The other aspect of the ground is that the judge failed to find that the applicant had a dysfunctional upbringing. It is not clear if this is a separate matter from the matter of the applicant's homosexuality and his family's attitude to it. The particulars of the ground suggest that the two matters are interrelated. 7. There is no reference in any of the evidence or submissions before the sentencing judge to a complaint of a dysfunctional upbringing. The transcript of the sentence hearing suggests that after the evidence was given on 27 April 21, the proceedings were stood over for further submissions to 8 June 2021, although the exchanges between counsel and his Honour might suggest that written submissions only were to be lodged. The written submissions made on behalf of the applicant made no reference to his upbringing, and it appears that it is only the sentencing judge who makes any reference to a dysfunctional upbringing when his Honour rejected it. There is no evidence from the psychologist or otherwise that the applicant had a dysfunctional upbringing, except that he told the psychologist he experienced "parental neglect there were (sic) parental favouritism and minimal care and affection towards him". The applicant gave evidence that what he told the psychologist was true. 8. The evidence from the applicant's sister did not provide any support for a dysfunctional upbringing. She relevantly gave this evidence: Q. Growing up, did you have a relationship where you were close, would you share things with one another? A. Correct. Q. On the basis of your observations and your observations alone, how would you describe Yousef's relationship with your parents? A. Very supportive and caring. Q. Supportive and caring? A. Yes. HIS HONOUR Q. Which way? A. Sorry? Q. In which direction? Is he supporting and caring of them or are they supporting and caring of him? A. No, he's supportive and caring towards them. Q. What have you observed about your father's relationship with your brother? A. Also very supportive and caring. Q. What was the relationship like between them when Yousef was about 14 years old and you were about eight? Do you remember that time? A. I can't recall that. Q. Do you recall your father beating Yousef? A. Yes, your Honour. 1. It is possible that another basis for the assertion of a dysfunctional upbringing is the beatings the applicant received from his father. However, no such matter was put forward by the applicant. 2. The submission by the applicant's counsel that the Crown ought to have challenged the applicant's evidence about his dysfunctional upbringing and being beaten by his father because of his homosexuality, should be rejected. In the first place, there was no evidence to that effect to challenge. In any event, the Crown had no basis for challenging what was contained in the psychologist's report and what the applicant said except to suggest to him that, as with so much else in the case, his evidence should not be accepted. 3. It was for the applicant to establish that he had a dysfunctional upbringing on the balance of probabilities. The extent of the evidence that might be thought to provide some support for it came from the psychologist's report at par 34: As a child, he felt isolated in his family and neglected by his parents. A pattern of a lack of acceptance by the people, around him developed. Mr Zreika learned to hide his true self and his sexuality. He was shaken by his family's violent and intimidating reaction to his first male partner at 17. He described these events as traumatic and life-changing. 1. That was, perhaps, slight evidence of a dysfunctional upbringing. However, as I have said, the evidence of the psychologist was not put forward to suggest a dysfunctional upbringing. Rather, the report was used to point to mental health issues, particularly related to drug-taking. Accepting what was contained in the psychologist's report involved the sentencing judge accepting the truth of the applicant's evidence when he had consistently lied from the time of the commission of the offences onwards, even to the point of lying in his evidence before the sentencing judge. It might have been accepted as true, consistent with what is known many gay teenagers go through with their families. 2. Set against that evidence, even if accepted, was the evidence of the applicant's sister at [45] above. In those circumstances, it was entirely open to his Honour to find that it had not been demonstrated that the applicant had a dysfunctional upbringing. 3. I would reject this ground of appeal. Ground four: Sentencing judge's excessive intervention 1. As can be seen from the particulars in relation to this ground, the applicant submits that the interventions by the sentencing judge gave rise to a miscarriage of justice, denied the applicant procedural fairness, and gave rise to an apprehension of bias. 2. The applicant relies on two interventions of the sentencing judge. The first occurred while the applicant was being examined in chief. To give context to the sentencing judge's intervention, I will set out the examination in chief prior to the questions asked by his Honour. Q. You appreciate that the entirety of your criminal convictions, so I'm not talking about the offences to which you had the benefit of receiving section 10, but the entirety of your criminal convictions relate to fraud-related offences? A. Yeah. Q. You appreciate that? A. I do. Q. You appreciate that you're here before the Court with respect to in essence fraudulent offences? A. I appreciate that. Q. You would appreciate, would you not that here today you have told this honourable Court that you lied to the author of the sentencing assessment report, yes? A. I do. Q. You lied to the police? A. I did. Q. What is it that you have to say here today to convince this Court that you are not lying to this Court? A. There's nothing for me to lie about anymore, I've come clean and all I can say is that at the end of the day the truth for me is worth more than the lie, I know that I concealed things, I know that I tried to hide things, I know that I lied and fabricated the story, but in essence it was eating me up inside and I knew that one day the truth was going to come out, I was just stupid to continue with it. That's the - and I know now in essence and in retrospect that I will have a weight lifted off my shoulders in telling the truth, that I know and regardless of what happens and regardless of when I leave here today, I know that I can leave here having told the truth. Q. With respect to your time in custody, you've been in custody for the best part of a year now and it's your first time in custody? A. Yes. Q. Do you like being in custody? A. I hate it. HIS HONOUR: Before you move on, Mr Kondich. Q. Mr Zreika, you were interviewed by the police on 30 April 2020 and the author of the sentencing assessment report signed the report on 12 March 2021, so you've had almost a year to think about what you'd told the police and you say to me it was eating you up throughout all that year and still you didn't tell the truth to the sentencing assessment report author? A. I understand what you're saying, your Honour. Q. Yes, but what's your answer for what I'm putting to you, that you would understand I find it a bit difficult with your record to accept that you were eaten up by guilt at what you'd told the police in April 2020 and yet one year later you were still telling that lie. It doesn't seem to me that it was eating you up. This is your opportunity to explain that to me. A. So my explanation for that is that I was sorry within myself for what I had done, but the fact that I had lied, I attempted to maintain that lie, and I understand what you're saying in that if it was eating me up I should've come clean, but I was more scared about coming clean and obviously the consequences it would have which is what I now face today. But I was more so worried about the consequence it would have on me in telling, you know, and then having to go back through all the reports that I did, the initial report that I did. All I tried to do was I tried to maintain a stupid lie. HIS HONOUR: Yes, Mr Kondich. I might have some more questions at the end of the cross-examination. 1. The second intervention complained about took place while the Crown prosecutor was cross-examining the applicant. 2. The context for his Honour's intervention was a question and answer given immediately before the Crown prosecutor indicated that she was about to move on to a different matter. The transcript reads: Q. You had the opportunity to concoct a story about this third person who I won't name before the Court, but you had an opportunity to consider that before you participated in your interview, is that right? A. I had about 15 minutes from the time I was arrested to the time I went into the police station. … Q. Mr Zreika, you've described it as being a stupid lie, and you now say that you concocted that story within 15 minutes, that's simply not true, is it? A. What, that I concocted that story within 15 minutes? Q. Yes, this story about you being stood over by this third person? A. I concocted that story-- Q. Yes, but you accept that it would've taken you longer than 15 minutes? A. To come up with that story? Q. Yes? A. It took me 15 minutes to come up with that story. Q. Mr Zreika, as part of your electronically recorded interview you go into some detail about this third person, you accept that? A. I go into detail, yes, prior to that-- Q. You name him? A. Yes. Q. You identify where he lives? A. Yes. Q. You told the officers how you can find him because of the tattoo on his lower left calf? A. I don't recall mentioning the tattoo on his lower left calf. HIS HONOUR Q. You may assume, Mr Zreika, that you did. I have read it today? A. I don't recall that bit. VUU Q. You accept now, having been told by his Honour, that you go into some detail about describing this third person who you say was standing over you? A. I do. Q. You also describe the car he drives? A. The car his mother drives. … Q. Yes. So you accept that there would have been some degree of planning before you participated in this interview? A. That's correct. Q. The next point I want to take you to, Mr Zreika, is about your previous employment at MAX disability services. That would have involved you dealing with- HIS HONOUR: Before you move on. VUU: Yes, your Honour. HIS HONOUR: Q. You see, Mr Zreika, what Mr Crown was touching on is something that's been of some concern to me. Throughout this interview that you gave with the police in which there was only 15 minutes between when you were arrested and when the interview commenced, and you've told me on your oath that the entirety of this story was made up by you in that 15 minutes. I want you to think very carefully about that evidence, Mr Zreika- A. I understand what you're saying. Q. --because - let me make it clear what I am saying. The point the Crown is making and which is of concern to me is that there is so much detail contained in that story that you had only 15 minutes to prepare, including the name of the person, incidents where you had been punched, the description of a motor vehicle, even to the point where you could say it was the offender's mother's vehicle, a description of a tattoo, and there's more, but I am having a great deal of difficulty, Mr Zreika, in believing that you or anybody could come up with such a detailed concoction in only 15 minutes. It seems to me more likely, and this is your opportunity to address it, that you had prepared this story in the event that you were arrested. In other words this was not concocted in the 15 minutes between arrest and when you started to tell the story but that you'd pre-planned it in case you were ever caught. What do you want to say about that proposition? A. So I do want to say that it was pre-planned, your Honour. Q. The story? A. The story. Q. Before the 15 minutes--- A. Before the 15--- Q. ---before your arrest? A. That's correct. Q. So that's another lie you've told me on your oath? A. It wasn't - it wasn't concocted in the sense that you - would - you know, I had 15 minutes in which to plan it from the time of my arrest, but it was planned in advance, your Honour. HIS HONOUR; You just told me a minute ago that it wasn't. Yes, Mr Crown. VUU: Your Honour, I don't propose to comment further on that line of questioning. HIS HONOUR: It's up to you, Mr - you ask whatever questions you like. Mr Kondich will have a chance to re-examine. I'm going to give him an opportunity of conferring with his client by the way, this is such a difficult cross ­examination of this offender that I think he should have the opportunity of conferring before re-examination, but don't - you can ask whatever questions you want, make your own forensic judgment, Mr Crown. VUU: Yes. Thank you, your Honour. Q. I put it to you squarely, Mr Zreika, that you've just lied to the Court under oath? A. Well, in the context of the question that I was being asked- Q. Not in any context, you've just lied to the Court, yes or no? A. I did not - I lied to the Court about it being 15 minutes, yes I did, and I had concocted the story prior. 1. The applicant submitted that in both cases the questions asked by the sentencing judge were a direct challenge to him, and in that way the questioning was an egregious departure from the role of a judge presiding over an adversarial sentencing exercise. In that way the sentencing judge had entered the arena and taken the role ordinarily reserved for the prosecutor. 2. The applicant submitted that the questioning was a direct attack on his credibility and the questions might have been interpreted by a fair-minded observer in a way that suggested the sentencing judge had prejudged the applicant's credibility. 3. Although in oral submissions counsel for the applicant eschewed the notion that the judge's intervention when the applicant's sister gave evidence formed part of ground four, the applicant's written submissions complained of that intervention also. 4. Again, it is necessary to set out the questioning immediately before the judge's intervention: Q. Growing up, did you have a relationship where you were close, would you share things with one another? A. Correct. Q. On the basis of your observations and your observations alone, how would you describe Yousef's relationship with your parents? A. Very supportive and caring. Q. Supportive and caring? A. Yes. HIS HONOUR: Q. Which way? A. Sorry? Q. In which direction? Is he supporting and caring of them or are they supporting and caring of him? A. No, he's supportive and caring towards them. Q. What have you observed about your father's relationship with your brother? A. Also very supportive and caring. Q. What was the relationship like between them when Yousef was about14 years old and you were about eight? Do you remember that time? A. I can't recall that. Q. Do you recall your father beating Yousef? A. Yes, your Honour. 1. The applicant accepts that to succeed on this ground he needs to show that the judge's intervention resulted in a miscarriage of justice. 2. In Ellis v R [2015] NSWCCA 262, this Court (Bathurst CJ, RA Hulme and Garling JJ) said at [65]: Although a number of these decisions seem to be based on the proposition that the conduct of the judge founded a reasonable apprehension of bias, that is not necessarily the case. A miscarriage of justice will occur in circumstances where the conduct of the judge prevents a party from properly presenting his or her case: Jones v National Coal Board. In R v T, WA [2014] SASCFC 3; (2013) 118 SASR 382 at [38], Kourakis CJ stated three ways in which a judge's intervention may be excessive and lead to miscarriage of justice: I would state the grounds on which a judge's intervention might vitiate a conviction a little differently, as follows: (i) the questioning unfairly undermines the proper presentation of a party's case (the disruption ground); (ii) the questioning gives an appearance of bias (the bias ground); and (iii) the questioning is such an egregious departure from the role of a judge presiding over an adversarial trial that it unduly compromises the judge's advantage in objectively evaluating the evidence from a detached distance (the dust of conflict ground). 1. One of the significant difficulties for the applicant in relation to this ground is that his credibility was a serious issue not only as a result of the index offending, and not only as a result of his prior criminal record, but because he admitted to having lied to the police and the author of the sentencing assessment report. Subsequently, he admitted that he had lied in his evidence to the Court at the sentence hearing. 2. It is difficult to understand how there can be said to have been a denial of procedural fairness. The sentencing judge intervened to let the applicant know his concerns about evidence that he had just given, and to give the applicant the chance to explain himself. That was an entirely appropriate course. Had the judge kept his concerns to himself and subsequently made adverse findings, the applicant would have had a legitimate complaint. 3. The particulars for this ground suggest that it was the frequency of intervention that led to a denial of procedural fairness. This aspect of the complaint is difficult to understand. In 14 pages of transcript covering the examination in chief, apart from the two questions asked by his Honour set out at [53] above, the sentencing judge made only one intervention to suggest to the applicant's counsel that he ask a further question about a document shown to the applicant. During six transcript pages of cross-examination, the sentencing judge, besides asking the questions set out at [55] above, only intervened to warn the Crown Prosecutor about questions he was asking. It was not explained how the totality of those interventions constituted procedural unfairness. 4. No submissions were made to explain how the judge's questions constituted, or led to, a miscarriage of justice. Counsel for the applicant submitted that it was inappropriate for the judge to ask questions of, or to cross-examine, the applicant when that was the Crown Prosecutor's task. Particular complaint was directed to the second group of questions at [55] above, because it was said that the applicant was forced into a corner and had to agree that he had lied to the Court. 5. The sentencing judge said that he had a concern about the issue that the Crown had raised in relation to whether the applicant had sufficient time to make up the story he told to the police in his ERISP. His Honour said he was giving the applicant the opportunity to address that concern. At that point the applicant volunteered that he had pre-planned the story, prior to the 15 minute window he had. This was contrary to what he had said a few minutes earlier. 6. It is not easy to understand how a miscarriage of justice occurred in the circumstances. The applicant had given evidence which the sentencing judge said he had difficulty accepting. The applicant then admitted he had lied. That does not constitute a miscarriage of justice. 7. The applicant submitted that the sentencing judge's questioning gave the impression of bias. The applicant relied upon what was said in Finnigan v R [2022] NSWCCA 181. 8. In fact, the position in the present matter is remarkably similar to what occurred in Finnigan, and no reason is shown for reaching a different result here. In Finnigan, Cavanagh J (Brereton JA and Wilson J agreeing) said: [112] The suggestion of apprehended bias in this matter arises not in the context of statements made by the sentencing judge during exchanges with Counsel prior to the hearing of any evidence or even exchanges made during oral submissions. It was the questioning of the applicant by his Honour that gives rise to the submission. Yet, on a fair reading of all of the examination-in-chief and cross-examination of the applicant, it is clear that his Honour's questions were a direct response to the other answers given by the applicant in his evidence. [113] In my view, the applicant has not established that which is necessary for a finding of apprehended bias, having regard to the circumstances in which the questioning arose. [114] The sentencing judge was required to assess the applicant's evidence. As juries are instructed, that necessarily involves an assessment of what the applicant was saying as well as his demeanour and the way in which he was saying it. The fact that after hearing most of the evidence the sentencing judge asked the questions of the applicant as if to challenge him does not lead to the conclusion that a fair-minded lay observer might reasonably apprehend that the judge might not bring an impartial mind to the resolution of the question his Honour was required to decide. This is because his Honour was responding to the evidence actually given by the applicant at the very moment it was given and having regard to the precise statements made by the applicant. [115] His Honour did not embark on his questioning of the applicant in a vacuum. He was responding to the applicant's statements. … [116] In H T v The Queen [2019] HCA 40; (2019) 278 A Crim R 133 per Kiefel CJ, Bell and Keane JJ, the Court observed (at [18]): Whilst stated as principles or rules deriving from the more general principle of procedural fairness, these rules do not have immutably fixed content. The content of procedural fairness may vary according to the circumstances of particular cases. Procedural fairness is not an abstract concept; rather, it is essentially practical. The concern of the law is the avoidance of practical injustice. It is that consideration which guides a court in deciding whether its procedures should be adapted to meet difficulties which may arise. [117] It is necessary for the applicant to establish that the complaint of judicial intervention leads to procedural unfairness resulting from a practical injustice. [118] In my view, the alleged injustice is more theoretical than practical. On my review of the transcript, the applicant was not prevented on any occasion from giving the evidence that he wanted to give. Further, he was given the opportunity to answer his Honour's questions as he wished to answer them and he did so. His Honour was entitled to reject his evidence as untruthful. [119 The interventions fall broadly within the observations of this Court (per Wilson J) in Pleasance v R [2016] NSWCCA 113 ("Pleasance") (at [83]-[89]): It is not the law that a sentencing judge is not entitled to ask questions of an offender who gives evidence, or question some aspect of the case presented by an offender. Such questioning will only become unreasonable where there is unfairness to the offender. Determining whether that point has been reached requires an evaluation of the whole of the circumstances of the case, and the nature and extent of any questioning. Although the applicant complains that his Honour raised with the parties the issue of the applicant's evidence and what he was to take from it, relying upon this aspect of the matter as an indication of the extent to which the sentencing judge had descended into the arena, his Honour was, in fact, obliged to raise it. In giving her evidence as she did, the applicant appeared to traverse aspects of the agreed facts. Since the sentencing judge was obliged to find the facts of the crime, it was appropriate to raise with the parties the perceived inconsistencies between the applicant's evidence and other evidentiary material, including agreed facts: R v Falls [2004] NSWCCA 335 at [37]; Zammit v R [2010] NSWCCA 29 at [26] – [27]. Importantly, in the present case the sentencing judge sought clarification of matters over which the applicant's evidence had drawn a cloud of uncertainty and, having done so, squarely raised his concerns for the consideration of the parties. His Honour invited further evidence and, ultimately, submissions on the point. There can be no unfairness where the applicant was given every opportunity to clarify her evidence (in chief, cross-examination, re-examination, and further evidence in chief with leave), and invited to address the sentencing court about her evidence and what should be drawn from it. This matter is readily distinguished from that pertaining in Ellis v R, where the applicant was not able to complete his evidence, and compelled to withdraw the evidence that he had given before the sentencing judge intervened. The questions asked by the sentencing judge of the applicant about her assertions as to the circumstances surrounding the commission of one of the offences taken into account, pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999, were also clearly intended to clarify what appeared to be evidence that undermined her earlier acknowledgement of her guilt of that offence. Such questioning was also open to his Honour. [120] Her Honour's observations in Pleasance are particularly apposite to the circumstances in this matter. There is no unfairness where the applicant was given every opportunity to clarify his evidence and given an opportunity to make submissions thereafter. Like in Pleasance, this matter may be distinguished from Ellis. The applicant was not prevented from completing his evidence or forced to withdraw evidence. Indeed, as I have found, he was quite able to respond to any propositions put by his Honour. (emphasis added) 1. For similar reasons, I do not consider that his Honour's two interventions in the present case, arising as they did from answers given by the applicant, gave any appearance of bias or pre-judgment. 2. Ground 4 should be rejected. Ground 1: Manifest excess 1. The applicant submitted that four factors should have led to a lesser sentence being imposed. First, the victim with respect to the four substantive charges was the federal government as opposed to private persons. Secondly, the "system" used was not sophisticated. Thirdly, the amount of money taken was not a significant amount. Fourthly, the full duration of the offending was not of long duration, extending from 14 September 2019 to May 2020, with the substantive matters before the Court taking place between 16 January 2020 and ending in May 2020. 2. The applicant submitted that the total of funds actually obtained by way of fraud totalled in the vicinity of $36,000.00. That consisted of the 35 payments referred to in count 1, the rental assistance in sequences 74 and 75, the Medicare benefit in sequence 76 and the housing benefit referred in the s 166 certificate. The applicant submitted that the total of the amounts attempted unsuccessfully to be obtained totalled approximately $37,000.00. 3. The applicant submitted that an examination of the cases in this Court demonstrated that where sentences were imposed similar to the sentence imposed on the applicant all involved offences where far greater amounts of money were involved. The applicant submitted that with the findings of objective seriousness made by the sentencing judge and taking account of the amounts actually defrauded and the amounts attempted to be defrauded, the aggregate sentence was outside the range appropriate for the offending. 4. The applicant submitted that there must have been some misapplication of principle or an error because the sentence imposed is far outside the available sentencing range. 5. The Crown submitted that the four factors mentioned were relied upon by the applicant at the sentence proceedings and were considered by the sentencing judge in reaching his conclusion about the sentence to be imposed. 6. The Crown submitted that the aggregate sentence did not fall outside the range of sentencing options reasonably available to the sentencing judge. The Crown submitted that when regard is had to the maximum penalty for the offences, and taking into account the offences placed on the s 16BA schedule, the sentence cannot be said to be manifestly excessive. 7. The principles relevant to a ground of manifest excess are well known and do not need to be restated. They were well summarised by R A Hulme J (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing) in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443]. 8. Counsel for the applicant provided to the Court the Public Defenders' table of sentences for offences contrary to s 134.2 of the Criminal Code. The sentencing judge was not provided with this table but was given the details of four cases only, only one of which was determined in New South Wales. 9. An examination of the cases in the Public Defenders' table demonstrates two things. First, the vast majority of the cases involved amounts far greater than are involved in the present case. Secondly, the sentences imposed in those cases that bore any comparison with the sentence imposed in the present matter involved amounts far exceeding the amounts involved in the present matter, and frequently involved offending that was well planned and committed over a much longer period of time. 10. Before the sentencing judge, the Crown had relied on four cases. Only one, Zaky v R (Cth) [2017] NSWCCA 141, involved an amount that could be considered comparable, albeit it well exceeded the amount involved in the present case. A sentence of five years was imposed with a release on recognisance after two years and six months. However, the frauds in that case took place over a period of six and a half years, and Hamill J in the case involving the co-offender (Zaky v R [2015] NSWCCA 161) said of it: "the deception was a sustained one and of more complexity than is often seen". 11. In the present case the sentencing judge determined that the objective seriousness of count 1 (the successful fraud involving $35,000.00) is just below the mid-range. The other offences were said to be between the middle and the bottom of the range or at the bottom of the range. 12. In my opinion, an examination of the cases involving offences against s 134.2 demonstrates that, for the amounts involved in the present case, the relatively short period of the offending, and the generally unsophisticated methods employed, borne out by the applicant's failures to obtain the monies he attempted to obtain on so many occasions, the aggregate sentence imposed was manifestly excessive. It is not to be overlooked that each of the indicative sentences was reduced by 25% for the applicant's early plea. Although this Court has said that it is not a helpful exercise to assume that the aggregate sentence should be increased by the 25% discount for the plea to reach a notional starting point, it is reasonable to infer that, had it not been for that discount accorded to the indicative sentences, the starting point for the aggregate sentence would have been higher than was imposed. 13. The further matter is that the offence in count 4 involved an attempt to obtain an amount of $331.55. For that offence his Honour indicated a sentence of ten months' imprisonment, reduced as result of the plea from 14 months' imprisonment. It is difficult to see how that was an appropriate sentence in all the circumstances. Had it been the only offence charged, it is difficult to see how any term of imprisonment could have been imposed. That sentence may be compared with the sentence for the offence on the s 166 certificate (a s 10A dismissal), where a benefit of $512.60 was actually obtained. That indicative sentence is likely to have had some bearing on the aggregate sentence. 14. For those two reasons, I consider that the aggregate sentence was manifestly excessive. Re-sentence 1. I would assess count 1 as being below the mid-range of objective seriousness, particularly bearing in mind the amounts involved and the period over which the claims were made. I agree with the sentencing judge on his assessment of the other counts. 2. The applicant did not have a strong subjective case. I agree with the sentencing judge that it could not be said that the applicant demonstrated that he had a dysfunctional upbringing. There was simply conflict with his father over the applicant's sexuality by the time the applicant was about 17 years of age. I accept that the applicant may have been physically disciplined by his father, but it is not suggested that in that way he was physically abused as that term is ordinarily understood. 3. The applicant had excelled academically and ultimately worked as the head of creative and performing arts at a high school. He appears to have faced discrimination because of his sexuality and that seems to have worsened the depression that he suffered from about the age of 21. 4. The applicant has been convicted of a number of offences since 2015, including offences of dishonestly obtaining a financial advantage by deception, making false representation resulting in police investigation, and shoplifting. 5. Given the series of lies told by the applicant from the time of the offending up to and including his evidence before the sentencing judge, I agree with the sentencing judge's findings that the applicant is not genuinely remorseful and that his prospects of rehabilitation are poor. Both specific and general deterrence are significant in the circumstances. 6. I would make a finding of special circumstances by reason of this being the applicant's first time in custody, the extra need for supervision on parole because of his poor prospects of rehabilitation, and his more onerous time in custody because of restrictions due to the Covid-19 pandemic. 7. In my opinion, the following sentences are indicated: Count 1: 3 years' imprisonment. Count 2: 1 year and 6 months' imprisonment. Count 3: 1 year and 6 months' imprisonment. Count 4: 3 months' imprisonment. 1. I would impose an aggregate sentence of 3 years and 6 months' imprisonment with a non-parole period of 2 years and 3 months. I would not interfere with the s 10A dismissal in respect of the offence on the s 166 certificate. Conclusion 1. I propose the following orders: 1. Grant leave to appeal. 2. Uphold the appeal in respect of the aggregate sentence. 3. Quash the sentence imposed in the District Court on 8 June 2021. In lieu, sentence the appellant to an aggregate sentence of 3 years and 6 months imprisonment commencing 4 June 2020 and expiring 3 December 2023 with a non-parole period of 2 years and 3 months expiring 3 September 2022. The appellant is now eligible for parole. 1. HAMILL J: I agree with the orders proposed by Davies J and with his Honour's reasons for dismissing grounds 3 and 4. In dismissing those grounds, I should not be seen to endorse the unnecessarily robust conduct of the sentencing proceedings or to suggest that a teenage boy being beaten by his father is otherwise than dysfunctional. However, for the reasons explained by Davies J, there was no procedural unfairness in all of the circumstances. I agree that ground 1 must be upheld for the reasons provided by Davies J and with the new sentence proposed by his Honour. Noting that the applicant's non-parole period expired on 3 September 2022, I would recommend and urge the Parole Authority to give consideration to the applicant's release to parole as a matter of urgency. ********** 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: 09 December 2022