New South Wales Court of Criminal Appeal CITATION: Regina v Issaac [2005] NSWCCA 86 HEARING DATE(S): 16/3/05 JUDGMENT DATE: 16 March 2005 JUDGMENT OF: Wood CJ at CL at 1; Adams J at 51; Bell J at 2 DECISION: Application for leave to appeal granted ; Appeal dismissed Bankruptcy Act 1966 LEGISLATION CITED: Crimes Act 1914 Criminal Code 1995 R v Gallagher (1991) 23 NSWLR 220 CASES CITED: Regina v Purdon (unreported) CCA 27 March 1997 Regina v Winchester (1992) 58 ACR 345 Zaia Issaac (Applicant) PARTIES: Regina (Respondent) FILE NUMBER(S): CCA 2004/3099 I McClintock SC (Applicant) COUNSEL: G Walsh (Crown) Hanby & Associates Lawyers (Applicant) SOLICITORS: Commonwealth DPP (Respondent) LOWER COURT JURISDICTION: District Court LOWER COURT FILE NUMBER(S): 04/11/0247 LOWER COURT JUDICIAL OFFICER: Freeman DCJ IN THE COURT OF CRIMINAL APPEAL 3309/04 WOOD CJ at CL ADAMS J BELL J WEDNESDAY 16 MARCH 2005 Regina v Zaia Isaac Judgment 1 WOOD CJ AT CL: The court is in a position to deal with the matter now and I will ask Bell J to deliver the first judgment. 2 BELL J: This is an application for leave to appeal against the severity of sentences imposed on the applicant in the District Court on 21 May 2004. The applicant pleaded guilty in the Local Court to five Commonwealth offences. There was a defect in the committal document and he was arraigned on an indictment in the District Court charging him with the same five offences to which he pleaded guilty. 3 The first count charged the applicant that between 13 July 2001 and about 30 September 2003 he did, by a deception, dishonestly obtain a financial advantage, the Newstart Allowance, in the name of Zakaria Benjamin, from the Commonwealth Services Delivery Agency, to which he was not entitled because he was employed by and in receipt of income from Diagnostic Laboratories Pty Limited until 2 May 2002 and by the Gribbles Group from 3 May 2002. This is an offence provided by s 134.2(1) of the Criminal Code 1995. The maximum penalty for this offence is ten years imprisonment and/or a fine of $66,000. 4 The second count charged the applicant that on or about 12 March 2001 at Sydney, being an undischarged bankrupt he obtained credit to the extent of $20,702 from Esanda Finance Corporation without informing it that he was an undischarged bankrupt. This is an offence provided by s 269(1)(a) of the Bankruptcy Act 1966. The maximum penalty for this offence is imprisonment for a period not exceeding three years and/or a fine not exceeding $19,800 or both. 5 The third count charged the applicant that on or about 24 May 2000 at Sydney, being a time after the presentation of a petition on which he became a bankrupt, he did obtain credit by fraud, to wit, $3,000 from Australian Guarantee Corporation Limited ("AGC") using the name Zakaria Benjamin and representing to AGC that he had not been known by any other name and was not an undischarged bankrupt. This is an offence provided by s 265(5)(b) of the Bankruptcy Act and it also carries a maximum sentence of imprisonment for three years and/or a fine not exceeding $19,800. 6 The fourth count was a further charge contrary to s 265(5)(b) of the Bankruptcy Act of obtaining credit by fraud and alleged that on or about 22 July 2000 at Sydney, being a time after the presentation of a petition on which he became bankrupt, the applicant obtained credit by fraud, to wit, $3,050, from AGC using the name Zia Ashak and representing to AGC that he had not been known by any other name and that he was not an undischarged bankrupt. 7 The final count was preferred under s 269(1)(a) of the Bankruptcy Act and charged that on or about 15 March 2001, at Sydney, being an undischarged bankrupt he obtained credit to the extent of $4,341.23 from Plateau Food Distributors Pty Ltd using the name of Zakaria Benjamin, without informing the said corporation that he was an undischarged bankrupt. 8 The applicant was sentenced to a term of two and a half years imprisonment to date from 21 May 2004 in respect of the offence of dishonestly obtaining a benefit by deception, contrary to the Criminal Code. Under s 19AB(1) of the Crimes Act 1914 the Judge directed the applicant's release on a recognizance release order after eighteen months. 9 The applicant was sentenced to concurrent fixed term sentences of imprisonment, each commencing on 21 May 2004, in respect of the four offences under the Bankruptcy Act. For counts three and four, being the offences of obtain credit by fraud, he was sentenced to fixed terms of twelve months' imprisonment and on counts two and five, being the counts of obtain credit as an undischarged bankrupt without disclosing his status, he was sentenced to fixed terms of nine months imprisonment. 10 The facts upon which the applicant was sentenced are not in contention and were set out in an agreed statement. They may be briefly described as follows: on 19 April 1999 the applicant changed his name from Zaia Isaac to Zia Ashak by an application made to the NSW Registry of Births, Deaths & Marriages. Just under one year later, on 10 April 2000, the applicant presented a debtor's petition, which was accepted by Insolvency and Trustee Service Australia (ITSA). He was deemed to be a bankrupt until 11 April 2003. 11 On 11 May 2000 the applicant changed his name from Zia Ashak to Zakaria Benjamin by application made to the NSW Registry of Births, Deaths & Marriages. On 24 May 2000, using that name, the applicant obtained $3,000 in credit from AGC in order to purchase goods at a furniture store in Fairfield. The applicant did not disclose to AGC that he was an undischarged bankrupt. He certified in his application for credit that he had not been known by any other name and that he was not an undischarged bankrupt. It is this application that forms the basis of the charge in count three. 12 On 22 July 2000, using the name Zia Ashak and giving a different date of birth and a different address to the details supplied to AGC on the earlier occasion, the applicant obtained $3,050 in credit from AGC in order to purchase goods at Bing Lee Electrics in Fairfield. The applicant obtained the credit without disclosing that he was at the time an undischarged bankrupt. His application for credit stated that he had not been known by any other name and that he was not an undischarged bankrupt. This application forms the basis of the charge in count four of the indictment. 13 On 12 March 2001 the applicant, under the name Zakaria Benjamin, obtained $20,702 in credit from Esanda Corporation Limited in order to purchase a Nissan Maxima Sedan. The credit was obtained without disclosing that the applicant was an undischarged bankrupt. In the application for credit the applicant stated that he was not an undischarged bankrupt. These facts form the basis of the charge in count two. 14 On 15 March 2001, under the name Zakaria Benjamin, the applicant applied for a credit account with Plateau Food Distributors. At the time of obtaining this line of credit the applicant did not disclose that he was an undischarged bankrupt. In his application for credit he stated he was the owner of La Vera Pizzeria, a business that he did not own. He obtained credit in the amount of $4,341.23 from Plateau Food Distributors. These facts form the basis of the charge in count five. 15 On 21 March 2001 the applicant commenced receiving payment of the Newstart Allowance from Centrelink. His claim was made under the name Zakaria Benjamin. On 13 July 2001 he commenced receiving payments for his employment with Universal Diagnostic Laboratories ("Universal") as a courier. He was employed using the name Zak Benjamin. His employment with that company continued between 13 July and 15 November 2001. 16 On 21 November 2001 the applicant, under the name Zakaria Benjamin filed a debtor's petition that was accepted by ITSA. He had not been discharged from bankruptcy at the date of sentence. 17 Sometime in December 2001 the applicant approached the financial controller of Universal requesting that the name under which he received his employment payments be changed to the business name of N & Z Service. At the time of making this request he provided an Australian Business Register form in that business name, together with an Australian Taxation Office GST registration letter citing a GST Registration Number for that business name. He received payments from Universal in the name N & Z Service between 13 December 2001 and 2 May 2002. 18 In May 2002, Universal was sold to Gribbles Group Pty Limited ("Gribbles"). The applicant thereafter invoiced Gribbles between 2 May and 23 October 2002 in the name, N & Z Service for his courier services. 19 As at 9 October 2003 the applicant had not informed Centrelink of his change of name or of his employment with Universal and Gribbles. Between 13 July 2001 and 30 September 2003, under the name Zakaria Benjamin, he received over payment in an amount of $19,868.81 by way of Newstart Allowance. These facts form the basis of the charge in count one of the indictment. 20 On 21 October 2002 the applicant, who was by now using the name Zaya Rasko, commenced full time employment as a courier with Gribbles. As at 20 November 2003 he was still employed by and receiving payments from Gribbles. On 23 October 2002 the applicant formally changed his name from Zakaria Benjamin to Zaya Rasko. 21 On 9 October 2003 members of the Australian Federal Police executed a search warrant on the applicant's premises. He was conveyed to the Fairfield Police Station where he participated in a taped record of interview. During the interview he made a number of admissions and was generally cooperative with police. 22 The applicant has no previous convictions, although an offence of stealing was found proven against him in the Local Court in November 1990. He was released on recognisance under s 556A of the Crimes Act in respect of that matter. 23 The applicant and his eldest daughter both gave evidence at the sentence hearing. Also in evidence was a pre-sentence report, a reference from the Reverend Lazar of the Catholic Assyrian Church of the East and a report from a psychiatrist, Dr Attia-Soliman. 24 The applicant was aged fifty-three years at the date of sentence. He is a married man and the father of three daughters. He was born in Iraq and has lived in Australia since 1977. Some members of his family remain in Iraq and over the period of the offences he said that he had been under pressure to assist them and other members of his family. The Judge approached the matter upon an acceptance of the applicant's evidence in this respect. 25 The applicant had been employed as a courier with Quinns Pathology for nine years until March 2000. His offences commenced after he lost his employment. 26 The credit obtained from AGC was used to buy furniture for the family home. The offence involving obtaining credit from Esanda related to arrangements to purchase a motor vehicle. The applicant had earlier approached his aunt and arranged for her to buy the car on the understanding that he would repay the loan instalments. He needed a car in order to obtain employment. He was unable to meet the repayments and came under pressure from his aunt to do something about the situation. It was in these circumstances that he approached Esanda with a view to acquiring the car in his own name. 27 The line of credit established with Plateau Foods was taken out to assist the applicant's wife's brother who was having difficulty keeping his business, a pizzeria, afloat. Plateau Foods Pty Limited was supplying food to the pizzeria. Ultimately, the brother in law sold the business, but did not pay back any of the money that the applicant had obtained on his behalf. 28 The Judge referred to the applicant's evidence concerning the pressures to which he had been subject and accepted that these had led to his offending behaviour. His Honour accepted the motive for the commission of each of the offences was need, as distinct from greed. 29 The sentence is challenged on three grounds. Ground 1 - his Honour erred by giving insufficient weight to the applicant's pleas of guilty. 30 The Judge accepted that the applicant's pleas had been entered in the Local Court at the earliest opportunity. He found that the applicant was entitled to a discount on the sentences to reflect what he described as the utilitarian value of the early pleas. He specified a discount of twenty five percent on this account. 31 Two features of his Honour's approach to the pleas of guilty are identified in support of this ground. Firstly, it is contended that the sentences do not appear to reflect that the stated intention to discount them was carried into effect. This is because the notional starting point for each of the sentences is not a full year or half year. By way of example, the sentence imposed on count one has a notional starting point of three years and four months. His Honour took into account the pleas of guilty and quantified the discount that he proposed. There is no reason to think that having done so he overlooked the matter in fixing the term of each sentence. He may have rounded the sentences off, having allowed the discount, or his starting point may have been as the applicant identifies. 32 Section 16A of the Crimes Act requires a sentencing judge to take into account a plea of guilty. It is recognised that it is appropriate to reflect the offender's willingness to facilitate the course of justice by discounting the sentence. The range indicated in R v Thompson (2000) 49 NSWLR 383 is commonly applied in sentencing Commonwealth offenders. Subsection (2)(f) of s 16A requires that a sentencing judge take into account the degree to which the person has shown contrition. In written submissions it is contended that the Judge erred by failing to allow a discount in excess of twenty-five percent in order to reflect the remorse encompassed by the plea. 33 Under s 16A(2) of the Crimes Act, the degree to which a person has shown contrition for an offence is one of a number of factors that a sentencing judge is required to take into account in arriving at the appropriate sentence. It was neither necessary nor desirable for the Judge to quantify a discount to reflect the degree to which the applicant's pleas of guilty evidenced his remorse. Remorse is part of the mix of subjective factors that, taken together with the assessment of the objective seriousness of the offences, determines the appropriate sentence in a given case. For the reasons explained in R v Gallagher (1991) 23 NSWLR 220 at 228, attempts to separate out one or more of the subjective considerations and quantify them may be thought an artificial and illogical exercise. 34 The question of whether the Judge gave insufficient weight to the evidence of the applicant's remorse is a matter to which I will return in dealing with ground 3. I would reject ground 1. Ground 2 - His Honour incorrectly characterised the applicant's criminality in relation to counts 2 and 5 as frauds and over estimated the loss to the victims of the applicant's criminality. 35 In the course of his reasons the Judge said of counts 2 and 5: "In March 2001, he obtained credit from Esanda in respect of the purchase of the motor vehicle, the sum involved being $20,702, being an undischarged bankrupt and failing to notify that company of his status, and three days later, he applied for a line of credit with Plateau Foods Pty Limited, and obtain $4,300 odd – again, failing to disclose that he was an undischarged bankrupt, although in both these cases he was using his then current name of Zachari [sic] Benjamin." 36 In dealing with the total loss resulting from the applicant's offending on all five counts his Honour said: "The amounts of the frauds all up total some $50,000 - $31,000 odd being obtained in credit, and $19,000 almost $20,000 in social security benefits, to which the prisoner was not entitled." 37 In written submissions it is contended on the applicant's behalf that counts 2 and 5 charged offences contrary to s 269(1) of the Bankruptcy Act that do not contain an element of fraud. This is in contrast to the offences under s 265(5) of that Act that do contain fraud as an element. 38 It is apparent that his Honour recognised the distinction between the counts. Notwithstanding that each offence has a maximum penalty of three years, his Honour treated the offences charged in counts 3 and 4 as being of a greater degree of objective seriousness. That he was mindful of the elements of the offence charged in counts 2 and 5 is clear from the extract from his reasons that I have set out at paragraph [35]. 39 To my mind, there is no substance to the challenge that his Honour misapprehended the criminality involved in the offences charged in counts 2 and 5. In referring to "the amounts of the frauds", his Honour was not referring in a technical sense to the elements of the offence charged, but to the fact that each of the offences involved dishonesty. 40 The second aspect of the challenge advanced in this ground is that there was evidence that Esanda repossessed the motor vehicle and that it had been sold for an amount between $13,700 and $14,000. His Honour did not refer to this evidence in the course of his brief ex tempore reasons. I do not consider that omission to have disclosed error. His Honour correctly referred to the total sums involved in the bankruptcy counts and the Commonwealth code offence by reference to the agreed facts. 41 I would reject ground 2. Ground 3 - the sentence in relation to ground 1 was manifestly excessive. 42 The applicant submits that the Judge must be taken to have erred in imposing a sentence of two and a half years' imprisonment given the powerful subjective case advanced on his behalf. Mr McClintock SC, who appeared on the hearing of the application, points to the circumstances that (i) the applicant was a man of mature years, (ii) of good character, (iii) whose offences were motivated by need in the context of family pressure and a depressive disorder. 43 The Judge's reasons were expressed with brevity and his Honour did not detail the applicant's subjective case. He did however advert to s 16A after reminding himself of the provisions of s 17. He accepted the applicant's evidence of the pressure to which he had been subject as the head of the family. 44 My reading of his Honour's remarks is that the objective criminality of the fraud on the Commonwealth required a sentence of full time custody of this length, notwithstanding his acceptance of the applicant's favourable subjective case. His Honour referred to authorities including Regina v Purdon (unreported) CCA 27 March 1997 and Regina v Winchester (1992) 58 ACR 345 in coming to this view. 45 Mr McClintock noted that at the sentence hearing the Crown did not submit that a sentence to be served by way of periodic detention was outside the range. His Honour considered this option and said: "Mr Smith, for the prisoner, suggested that whilst the authorities called for custodial sentences in cases similar to this, that the matter could be dealt with by way of periodic detention. I do not read the authorities as giving me as much leeway as that, and, in any event, in my view, having regard to the number and duration of these criminal acts, periodic detention is not an appropriate option " (emphasis added). 46 His Honour referred to the circumstance that the offence charged in count 1 involved conduct over a prolonged period, including making repeated assertions to the Commonwealth Authority that he was not in employment. It was plainly open to his Honour to conclude that no sentence other than one of imprisonment to be served in full time custody was appropriate in the circumstances of this case. 47 Taking into account the period of time over which the offence charged in count 1 took place, and that it involved imposition on the Commonwealth in respect of social security payments, I am unable to conclude that a sentence of two and a half years' imprisonment subject to a recognizance release order after eighteen months can be said to have exceeded the range of sound discretion. 48 His Honour's sentencing order is not without significance. He directed that each of the sentences be served concurrently, producing an overall effective sentence that might be characterised as extending a measure of leniency to the applicant. 49 For these reasons, I propose that the application for leave to appeal be granted but that the appeal be dismissed. 50 WOOD CJ AT CL: I agree. 51 ADAMS J: I also agree. 52 WOOD CJ AT CL: The order of the court will be therefore as Bell J has proposed. ********** 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.