Director of Public Prosecutions v Harb [2007] NSWLC 26

Local Court of New South Wales

CITATION: Director of Public Prosecutions v Harb [2007] NSWLC 26 JURISDICTION: Criminal PARTIES: Director of Public Prosecutions Faraj Harb FILE NUMBER: 20011946/07/2; 20011954/07/2 PLACE OF HEARING: Downing Centre Local Court DATE OF DECISION: 07/30/2007 MAGISTRATE: Magistrate R Williams CATCHWORDS: Obtain money by deception - Sentence - Mitigating factors LEGISLATION CITED: Crimes Act 1900 CASES CITED: REPRESENTATION: ORDERS: The accused is sentenced to 104 hours of community service for each charge to be served concurrently.

Reasons for Decision 1. The accused is charged with two offences of obtaining money by deception. The charges are laid pursuant to Section 178BA of the Crimes Act 1900. The court attendance notice lists the informant as the Independent Commission against Corruption and the proceedings have been prosecuted by the Office of the Director of Public Prosecutions. 2. The commencement of this prosecution would appear to have followed the findings of an investigation conducted by the Independent Commission against Corruption referred to as the ICAC. The report of this investigation was published on the 28th February, 2006 by the ICAC. 3. These charges and another charge laid under Section 178BB of the Crimes Act first came before this Court on the 21st December, 2006 and a plea of not guilty was subsequently entered by the accused on the 31st May, 2005 to each of these offences. The proceedings were listed for hearing on the 20th June, 2007. 4. On the 31st May, 2007 the Court was informed by the prosecution that the charge brought under Section 178BB was to be withdrawn and a plea of guilty was formally entered to the two offences laid pursuant to Section 178BA of the Crimes Act. The proceedings were adjourned to obtain a pre-sentence report and for submissions on the question of sentence. A pre sentence report dated the 26th July, 2007 was provided for the assistance of the court and submissions were made by both the Defence and the Prosecution on the 26th July, 2007 on an appropriate sentence. 5. The offences arose as the time that the accused was employed as a clerk in the Local Court Registry at Penrith. The Local Court is part of the Attorney General's Department. 6. The Prosecution tendered a 3 page agreed statement of facts that covered both Charges. The full facts are attached to the court papers in this matter and the specific deceptions relied upon without referring to the full facts are as follows: - The accused held himself out as being qualified to provide legal advice. With other parties, he introduced himself as a lawyer even though he was not admitted either as a Barrister or Solicitor to practice in the State of New South Wales. The deception caused the payment of the sum of $200 by a 3rd party as the 3rd party understood that the accused by virtue of his occupation could assist the third person at court. And further: - With other parties the accused held himself out as being able to influence the Mayor of Fairfield. The deception caused the payment of a sum of money by a 3rd party, as the 3rd party understood the accused would assist him with the 3rd party's development application. The deception included an understanding that the accused would arrange a dinner with the Mayor. The sum of $500 was received by the accused. 7. The accused is a 45 year old man living with his wife (34 year old) and their 3 young children. His wife has never worked whilst she has lived in Australia and the accused has always been the sole income earner for the family. His employment with the Attorney Generals Department was suspended without pay in March 2005. 8. Mr Hareb for the accused indicated that the accused was now a "broken man" with little prospects suffering from a Depression. In support of this condition he tendered a report of Dr John J Baker, Consultant Psychiatrist dated the 9th July, 2007. 9. Mr Hareb also stated that the accused had already suffered a great deal in his standing in the community by the fact that the matters the subject of these proceedings had first come to light over two years ago. Further that the accused had performed wide-ranging community service and tendered references in relation to this service. 10.Mr Hareb confirmed that the accused was contrite, realised that what he did was wrong and that he has lost his job and career as a result of his own actions. He indicated that the accused is currently has severe financial hardship with small prospects of reemployment. 11. It is clear that there is a victim in this matter in that 3rd parties did not receive what they had thought they had paid for however, the community has also suffered as they do, where parties are involved in a deception that clearly indicates that the system of Justice or Local Government can be manipulated for a desired result. 12. In considering an appropriate sentence for this matter the court should have regard to the following: