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 On the 31st May, 2007 the Court was informed by the prosecution that the charge brought under Section 178BB was to be withdrawn and a plea of guilty was formally entered to the two offences laid pursuant to Section 178BA of the Crimes Act.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: (a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his actions, (f) to denounce the conduct of the offender, and (g) to recognise the harm done to the victim of the crime and to the community. Further the sentence to be passed on the accused must ultimately reflect the objective seriousness of the offence committed and must be reasonably proportionate to the crime. On the facts of this matter and consistent with what the Crown has put in submissions on penalty the objective seriousness of this matter does not approach those of the most serious cases. 13. A further matter that is to be considered is that the accused entered a plea of guilty to the charges on 21st June, 2007. At that time the proceedings had been before the Court for six months. A plea of guilty is an acknowledgment of the elements of the offence, including the intention to commit the offence. It is also a circumstance that the Court is obliged to take into account. In addition to the act of contrition of the plea in this case there is a utilitarian value to the plea. The plea was entered on the day of hearing of the matter and was not entered at the first available opportunity however there were discussions as to facts and a withdrawal of a charge in these proceedings and clearly there was the saving of a need to conduct a defended hearing and in my view the appropriate discount to be given for the plea is 20%. 14. Further in determining an appropriate sentence mitigating factors should be considered and the mitigating factors to be taken into account in this matter include the accused has no prior record of criminal activity, the accused was a person of good character, the accused was unlikely to re-offend and the accused has shown remorse and has entered a plea of guilty. 15. In relation to these factors as stated earlier the Defence raised that the accused had a high degree of community involvement and in addition the Defence tendered four references confirming good character and the working within the community of the accused. I accept that there has been a contribution toward the community by the accused. 16,Further I do accept that there is little likelihood of the accused re-offending. The work situation of the accused has now changed as has his standing in the community and it is unlikely that he will be involved in similar offences in the future. The report of his consulting psychiatrist Dr John Baker expresses the opinion that the accused is suffering from Depression resulting in amongst other things "increased social isolation". 17.Whilst the report of Dr Baker states that the accused has suffered a Major Depressive Episode of recurrent type, it is noted that this condition does not explain the offence as the offences were committed prior to the his first attendance with Dr Baker, there is no evidence that he was suffering from this condition at the time of the offences, there is no evidence that he was in any way in poor health. 18.The main aggravating factors that I must take into account is that the Offender has abused a position of authority or trust in his employment with Local Courts 19. I consider the accused knew that what he was doing in commission of these offences was wrong and unlawful. During submissions it was conceded by both parties that his actions were driven more by ego than greed or other incentive. The relative small amounts of money involved would also lead to this assumption. It would appear that the accused was a person of reasonably high standing in his community and maybe in his community there was an understanding that his position was such that he could influence court proceedings and council decisions. It is clear that this understanding by him or other parties that he was involved with is wrong. 20 In considering what is an appropriate sentence in this matter I note that Mr Rehab for the accused argues that the appropriate sentence is a good behaviour bond pursuant to Section 9 of the Crimes (Sentencing Procedure) Act 1999 whilst the Prosecution concedes that the Court would not fall into appealable error if a period of imprisonment were not imposed for these offences. 21.The objective seriousness of this offence must be taken into account and the clear need for general deterrence. The objective seriousness of this offence is multiplied by the fact that the accused was a public official and was in a position of authority and some trust. The accused knowledge of the workings of the Local Court and supposed knowledge of the procedures of Council was important to the deception that was required in carrying out his course of action in these matters. It relied upon the knowledge and purported influence of the accused in anticipation of a result. 22. In my view and notwithstanding the clear abuse of his position as a public official, the subjective circumstances of the offender, these matters do not warrant the imposition of a term of imprisonment, however the punishment and deterrence should still be strong and I consider the imposition of a Section 9 Bond as requested by the Defence to be inappropriate. 23.Accordingly the accused is sentenced to 130 hours community service for each charge matter. The community service is to be served concurrently. 24. In considering this option of sentencing I have taken into account that the accused has indicated to the Probation and Parole Service as set out in their Pre Sentence Report dated the 26th July, 2007 that he could undertake this option notwithstanding his depressive illness. On this basis the accused was assessed as suitable for a Community Service Order and it is noted that he has signed the relevant undertaking. 25. I have indicated that the discount to be given for the plea of guilty is to be set at 20 % of the otherwise appropriate sentence. 26. The effect of this is to reduce the sentence to 104 hours community service to be served concurrently. Robert Williams Magistrate 30th July, 2007. 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.