R v Ahmad Hassoun [2016] NSWDC 409

District Court New South Wales

Medium Neutral Citation: R v Ahmad Hassoun [2016] NSWDC 409 Date of orders: 11 November 2016 Decision date: 11 November 2016 Jurisdiction: Criminal Before: Tupman DCJ Decision: See orders [59] Catchwords: CRIMINAL – Sentence after Trial – arson and attempting dishonestly to obtain money by deception – fire lit at night in a smash repair business in Kogarah owned by the offender – business in financial decline – fire set by unknown persons but with offenders knowledge and to enable him to make a fraudulent insurance claim – no money ever paid to offender by insurance company – extensive damage to premises and stock – no immediate threat to others – around mid-range of objective seriousness – considerable delay between offence and trial – intervening Coroner's enquiry but 3 years between Coroner's recommendation and ex officio indictment – delay unexplained – lengthy demonstrated rehabilitation and stale crime – limited criminal history – offender made no gain out of offence and lost his business – Crown submitted prison term required but full time not necessary Legislation Cited: Coroners Act 2009 ss 61, 78(3) Crimes Act 1900 ss 178BA(1), 178BB(1) and 197(1)(b) Crimes (Sentencing Procedure) Act 1999 ss 5 and 12 Cases Cited: Coles v R [2016] NSWCCA 32 Category: Sentence Parties: Director of Public Prosecutions (Crown) Ahmad Hassoun (Offender) Representation: N Scully (DPP) D Hooper (Offender) File Number(s): 2015/249825 Publication restriction: Nil

Judgment 1. HER HONOUR: The offender, Ahmad Hassoun, is before the Court for sentence following his conviction by a jury after trial on three counts in an indictment. They are as follows: 2. Count 1: That on or about 8 August 2008 at Kogarah he dishonestly, with a view to making a gain for himself, by means of fire, damaged property at Railway Parade Kogarah. This offence, which I will refer to as the arson charge, is an offence contrary to s 197(1)(b) of Crimes Act 1900 and as such, carries a maximum penalty of 14 years imprisonment; 3. Count 2: That between 1 September 2008 and 31 October 2008 at Sydney he attempted dishonestly to obtain money by deception, namely, lodging an insurance claim with Lumley Insurance dated 4 September 2008. This is an offence contrary to s 178BA(1) of the Crimes Act which carries the maximum penalty of five years imprisonment in this Court; 4. Count 3: That between 1 September 2008 and 31 October 2008 at Sydney, with the intention of making money, he concurred in the making of financial records, knowing them to be false in a material particular, namely, the financial position of Signature Auto Body, with reckless disregard as to whether it was true, false or misleading. This is an offence contrary to s 178BB(1) of Crimes Act which also carries a maximum penalty of five years imprisonment. 5. Both counts 2 and 3 are capable of being dealt with in the Local Court, where the jurisdictional limit of two years for each of them would 6. apply. There is no doubt that they would have been dealt with in that Court had it not been for the s 197 offence, which was a strictly indictable offence, committed to this Court for trial. 7. These offences were tried before me and a jury in July this year over a period of several days. He was found guilty on all three charges by the jury. He had been charged jointly with one other person in relation to count 1. That person was acquitted by way of directed acquittal by me during the course of the trial. 8. There was considerable delay between these offences and this ultimate trial, in fact, almost eight years. There had been a Coroner's inquiry into the fire conducted over a number of days, 15 to 17 November 2011, 21 to 23 May 2012, 26 June 2012 and 7 August 2012. 9. The Coroner suspended the inquiry on 7 August 2012 pursuant to s 78(3) of Coroners Act 2009 and the matter was referred to the DPP. The DPP determined to institute proceedings against the offender for these offences by way of ex officio indictment but those charges were not laid until 26 August 2015, that is, three years after the inquiry was suspended by the Coroner. 10. The relevant facts for sentence emerged from the evidence at trial, taken together with the jury's guilty verdicts. I accept that in August 2008 the offender was the proprietor of a smash repair business at Kogarah called Signature Auto Body. He worked there with others, including his brother, Omar Hassoun, and other either contractors or operators. 11. He had been operating the business since 2004. There was a brief period in which he was employed by another person but the business continued and was continuing up until the date of the fire. The business, I accept, was not doing well financially at the time of the fire. The tax returns for the 2005 and 2006 years recorded losses of $32,709 and $97,697 respectively. There was no income recorded for the 2007 tax year and a small profit for the 2008 year, which would not have been enough to cover the expenses of the business. 12. Financial records of the business produced during the trial showed that it regularly fell into debt and the business was often unable to pay bills as they fell due, with some cheques being dishonoured from time to time. This was not, however, to a substantial extent and not vastly out of line with what might well be expected from many small businesses operating in Sydney. Nonetheless, I accept that the business was not doing well financially at the time of the fire. That finding is inherent in the jury's verdicts of guilty in this matter. 13. On 26 February 2008, the offender insured the business for fire and peril in an amount of $126,000 and for business interruption in an amount of $170,000. He had been insured previously but this was a new policy. On 30 July 2008 the offender called the insurance broker to increase the business insurance cover by $20,000. This, however, I accept was as a result of having bought new equipment not long beforehand and, despite a misunderstanding that occurred from the Crown's perspective at the time of the trial, this was not an increase for business interruption, but for damage to equipment which had just been purchased or just been acquired by way of lease. 14. Before this, in May 2008, the offender had approached a mortgage broker to consolidate all of his debts and he was granted approval for a loan of $262,448, but he had not taken up this loan before the fire occurred. It is an anomaly of these convictions and the evidence surrounding these convictions that the offender owned his home unencumbered and had he taken up this consolidated loan, all of the business debts that were then outstanding would have been made good, without the need for a false claim to be made on an insurance policy. There is no explanation for why this simply did not occur rather than the offence having been committed. 15. During the afternoon of 7 August 2008, the offender and his brother left the premises some time before 4pm. On the evidence before the jury the offender had keys to the premises and the only known set of keys at the time. Probably others who either worked there or had worked there had had keys from time to time. He did not return to the premises at all that evening. The premises were alarmed but the back to base component had been ceased some time before. I accept that he activated the alarm when he left and in fact records from the security company indicate that the alarm was activated at 3.26pm. They also show, however, that it was deactivated a short time after that and then a telephone call was made from within the premises at 4.51pm. 16. I infer from other evidence that at some stage after that, it must have been reactivated, because it subsequently went off at a time consistent with the lighting of the fire. Between about 12.30, just after midnight and 1.06am on 8 August 2008 a passerby noticed a fire inside the premises of Signature Smash Repairs. The jury's verdict indicates that this offender, Mr Hassoun, was involved as part of a joint criminal enterprise in lighting that fire and did so for the purpose of making a gain for himself. 17. I do not propose to go through all of the evidence which was led by the Crown during the trial to prove the accused's guilt. The jury has accepted that in fact he was involved in committing the offence which is count 1. I accept that the fire was set in the early hours of 8 August 2008. I accept more probably than not that three people entered the premises not long before the fire started. I accept that the fire was started by the use of an accelerant, namely petrol, and was started in at least two and possibly three locations by spreading petrol in those locations from cans that were then found burnt later that day inside the premises. 18. I accept that these cans had been brought to the premises for the purpose of starting the fire, more probably than not earlier, sometime in the afternoon of 7 August, after the offender had left and possibly during a time when the alarm was deactivated for a period. As I have said, the alarm was obviously reactivated at some time afterwards, although the evidence did not provide me with the detail of when, but certainly at some stage before 1am on 8 August when the rear door was forced open from the outside and the alarm went off. 19. This activity was at about the same time as the three unidentified people were seen on the CCTV footage and these are the people, more probably than not, who entered the premises and set the fire. They are not apparently carrying anything when they arrive nor when they leave. I accept from that combination of evidence that the petrol cans from which the fire was set were put inside sometime in the afternoon, in the way that I have already found. The evidence is clear that the offender before me was not one of those three people and there is no evidence which connects him physically in any way to the lighting of the fire. 20. I accept on the evidence that he was at home and was woken to be told of the fire around 1.30am. However, as I have said, the jury's verdicts clearly indicate that he was involved in the fire and I accept that that was as part of a joint criminal enterprise. In fact, on the evidence, he was the only person with anything to gain as a result of the fire. The jury's verdicts of guilty for all three offences indicate that they accept his purpose in being involved in the fire was to make a gain for himself and this gain was to attempt to obtain money by deception, namely, to obtain funds from his falsely made insurance claim. 21. The offender notified the insurer of the fire immediately afterwards and had a discussion with a fire investigator at the scene. He told that person that his weekly turnover was between $7,000 and $8,000. That cannot be supported by any of the financial records which were tendered at trial. He submitted a claim form in relation to the fire on 4 September 2008. He told an insurance investigator, in a lengthy interview conducted with him, that all of his bills were paid up to date and that his business was running smoothly. This does not appear to have been supported by the financial records tendered at trial. 22. Clearly enough the insurance investigator was suspicious of the fire. That suspicion would have been generated, at the very least, because of the use of an accelerant to start the fire. There were thus telephone intercepts put into place, which must have been put in place by the police, who no doubt by that stage were also suspicious. There were telephone intercepts between 1 and 10 October 2008 and they intercepted calls between the offender, his accountant and Ms Johns, who was the receptionist at his business, and who did some bookkeeping and other financial records for him. The content of these calls give rise to the relevant facts for count 3 and inferences to prove count 2. 23. The offender apparently was in a relationship with Ms Johns at the time and, as I have said, she was also a receptionist at the business and did some of the bookkeeping. In particular, she kept Excel spreadsheets of the financial records of the company and liaised with the accountant, Mr Huang, who at that stage was providing accounting services to the business. During the period 1 to 10 October 2008, in conversations that were intercepted on the phone, these three discussed what needed to be substituted and added to some draft financial records already created for the relevant period in order to indicate that the business was operating at a profit. 24. In a particular part of the conversation to which this offender was a party there was specific reference to the insurance claim which had been made and the need for the financial records to show a profit, otherwise the claim would not be successful. Clearly the jury accepted that the offender, in being a party to these conversations and taking action to authorise a creation of the financial records thereafter, was at the least reckless as to whether details of those financial statements were true or misleading. I accept that it is clear that the purpose of these conversations was to create financial documents which were untrue to use in connection with the insurance claim, which itself was an improperly made claim, given that the fire had been deliberately set with the purpose of making a false insurance claim. 25. It seems to me that Mr Huang is indeed fortunate that he was not, himself, before the Court but apparently he had been granted a certificate pursuant to s 61 of Coroners Court Act 2009. The Excel spreadsheets created as a result of these calls show the original draft altered to indicate a profit of $66,000, which was not true. 26. Counts 2 and 3 are separate offences but equally, in my view, could have been viewed as providing evidence necessary to prove the accused's involvement in the substantive offence. As such, it seems to me that whatever the appropriate sentence for them should be, each of those sentences should not only be concurrent with the other but should be concurrent with the sentence for the substantive offence. 27. To that extent, I do not accept the Crown's submission that there should be partial accumulation. The fact that a false insurance claim was made in an attempt to dishonestly obtain money by deception and that the offender concurred in the making of a false financial record for the same purpose, it seems to me, are both integral parts of the evidence to prove, in particular, the element of the substantive offence that the Crown needed to prove, namely, that the purpose of the offender's involvement in the fire was to make a gain for himself, namely, a gain by way of a falsely made insurance claim. 28. In very brief summary and overview, then, the evidence as a whole establishes, on my finding, that the arson offence was committed by the offender as part of a joint criminal enterprise in circumstances where he reached an agreement with three unknown people to set a fire in the smash repair business that he owned. This was in circumstances where his business was operating at a loss and he was unable to meet all of his debts in a timely fashion, and he did so with the purpose of making a claim on his insurance policy both in relation to damage and destruction of property and destroyed stock and equipment and also to allow him to claim an amount for interruption of business. 29. The damage to the premises and stock would appear to have been extensive. There was some doubt about whether all of the equipment, stock and other items claimed by the offender in the insurance claim were in fact present at the time of the fire, but whatever stock and equipment was there, was badly burnt and totally destroyed. Part of the premises had to be demolished. The owner of the premises, the landlord, however had separate insurance and there is no evidence that he was personally out of pocket as a result of this fire. 30. The original estimate of the insurance claim made by the assessor was $360,000. As it was broken down in the assessor's report, most of that would never have found its way to the offender because it would have gone to either repay loans and the like over the various pieces of equipment that had been destroyed or were components involved in removing debris and making the premises safe. None of that was of any benefit to the offender. It seems to me that the only part of the claim which had the ability to benefit the offender directly was the component for business interruption. 31. He was insured for a maximum of $170,000 for that. He would never have obtained that amount. The original assessor estimated a period of about six months as appropriate in an amount of $100,000. Whether or not that would ever have been proved and paid, however, is not known because, in fact, the offender did not obtain any benefit from this offence because the policy was not paid out. However, his purpose was to obtain money under the insurance policy and doing the best I can, the only component that I can identify that would have benefited him directly was the business interruption component and I am not in a position to estimate how much he stood to gain, except that the maximum was $170,000. 32. Arson is clearly a serious offence. This fire was lit at night in what were commercial premises and which appeared to be surrounded by other commercial premises. There is no evidence that there were any residential premises immediately nearby. It would also appear that the fire was noticed early and was able to be brought under control without spreading to adjoining premises. That is more, one might think, by way of good luck as opposed to good management. The potential for serious damage to property is high and fires lit by accelerant are, in the experience of the Court, unpredictable and volatile. 33. There was also a risk of serious injury to members of the public. However, this was a fire occurring at night in what appeared to be industrial or commercial premises, where the risk of members of the public being nearby is slight. This offence was committed purely for financial gain and that is a fact taken into account in assessing the objective seriousness. There was clearly some planning involved in this offence. Somehow, in a way that cannot be accurately determined, petrol was made available to start the fire. The evidence does not allow a finding as to who did that, how it was done or the like. People other than the offender were the ones who entered and set the fire. 34. The verdict of guilty must mean that the offender had reached some agreement with these other people, for reasons that are also not capable of being known, but there is nothing in the evidence to suggest that anyone other than him was to gain. There was some planning but not, it seems to me, to any significant extent or at least no actual evidence that would allow such a finding, given that that amounts to a circumstance of aggravation. 35. The offender told police that there had been threatening phone calls made to him in a period leading up to the fire and afterwards, initially to burn down his premises and then, I assume, a more general threatening call. There is no evidence about these calls other than what appears in the police evidence and also some brief evidence given by his wife at trial. The Crown's submission is that these calls can be seen, in part, as an attempt on his part to disguise his involvement in the fire. I do not accept that the evidence taken all together is sufficient to make such a finding. However, nor is there any evidence that anyone, other than this accused, stood to gain anything from this fire. 36. I accept the Crown's submission that this offence falls around about the middle or perhaps a little below in terms of objective seriousness. The fraud offences, counts 2 and 3, are objectively less serious examples of offences capable of being charged under those sections. 37. Clearly enough, the sentences should convey a message of general deterrence. 38. This, as I have said, was not a plea of guilty and the offender was found guilty by the jury. He is thus not entitled to any discount to represent the utilitarian value of the plea and there is also no evidence of contrition and remorse. 39. They are not the only ways in which, however, the Court is capable of determining the prospects of rehabilitation. The Court is slightly hamstrung on this sentence in determining broad details about the offender's subjective circumstances because no evidence was called or tendered on his behalf. There was a pre-sentence report obtained and tendered, which I have read. I accept from that that the offender is now 40. He does have some criminal record but not in a way which, in my view, is of any great relevance to this offence. The majority of the offences on that were committed many years ago and were dealt with in the Children's Court. 40. There is only one criminal offence committed as an adult, which was in 2011, a common assault dealt with by way of a fine and a s 9 bond. He would appear to have complied with the conditions of that s 9 bond, including supervision, according to the pre-sentence report. Whilst he is not entitled to be treated as a person of prior good character, nonetheless, his criminal record does not operate as an aggravating factor nor is it a fact which would count against him in an assessment of his prospects of rehabilitation. 41. He lives with his wife and three children in the Bankstown area. At least one of those children is very young, in fact, born during the course of the trial. It would appear that his accommodation and marriage are stable and he has been married for some 15 years. He left school at 15 and worked until he injured his back in 1999. He was off work for three years as a result of that injury. He then returned to work and operated two separate businesses between 2001 and 2008, including the smash repair business, the subject matter of these proceedings. 42. That closed immediately after the fire and never reopened, but he continued to be employed in car detailing and truck driving after that, but again injured his back in 2011. He has not worked since then and now lives on social security. He claimed to Probation and Parole that he had been recommended for surgery because of limited lumbar spine function but there is no particular evidence about that before me. He also claims to be a carer for his son but there is no evidence in relation to that. I do, however, accept from Community Corrections that their assessment of him is an accurate one, namely, that he does not currently demonstrate any criminogenic needs and that he presents as having a low risk of reoffending. He cooperated in the preparation of the pre-sentence report. 43. Delay is an important issue to consider in this trial. There was considerable delay between the fire and the Coroner's inquiry. As I have said, the fire occurred in August 2008 and the first hearing of the Coroner's inquiry was in November 2011 and then continued over a considerable period of time, in a way that defies the application of logic in my view, for six days altogether, up until August 2012. There is no explanation for the delay in commencing the inquiry. No doubt much of the time was involved in an insurance investigation. 44. There was considerable further delay between the Coroner's decision to suspend the inquiry and the filing of an ex officio indictment on 26 August 2015 by the DPP. There is absolutely no explanation for that delay and on the face of it, nor could there be, given that the evidence by that stage appeared to have been entirely gathered and able to be used in support of the charges. 45. There are three aspects that the Court is entitled to take into account where delay of this type is apparent in accordance with the decision of the New South Wales Court of Criminal Appeal in Coles v R [2016] NSWCCA 32. 46. In that case Fullerton J observed that an inordinate and unexpected delay in investigations against an offender may result in mitigation of sentence, although, each case depended on its own particular circumstances. Delay can be considered in three ways. One of those is that the Court, where there has been considerable delay, is, as a result, considering a stale crime which of itself must have an impact on the appropriate sentence. This is a stale crime, given that it was committed eight years ago. 47. The second aspect that can arise as a result of delay is that rehabilitation has been demonstrated very clearly. Prospects of rehabilitation in this case, it seems to me, are very clearly demonstrated and have been clearly demonstrated throughout the whole of this eight year period. It would appear that there have been no further criminal offences committed during this period except of course to the extent that counts 2 and 3 were committed shortly after the fire was set. The offender has been on bail and apparently complied with the conditions of that bail. He would appear to have led an ordinary and normal life with his family, working when he could and, having been injured, not working from time to time. 48. He has significant community supports and is assessed by experts, namely, Community Corrections, as being a low risk of reoffending. His prospects of rehabilitation, despite the fact that he denies the offence, as a result of all of these matters, in my view, are very good. Eight years is a long time to demonstrate rehabilitation and he has done so and done so successfully. 49. The remaining factor that is relevant for consideration where there has been a considerable delay is the impact that anticipated or impending charges may have on an individual. That is a factor also referred to in the decision of Coles v R [2016] NSWCCA 32. 50. This offender has not given evidence on sentence so it is not possible to know just how this has impacted him, but the fact is that he engaged in a very lengthy interview with an insurance investigator and nothing happened. He gave evidence at the inquest, which went for a period of six or seven days and nothing happened. His insurance claim was not allowed and nothing happened. He discovered that Mr Huang had given evidence that very clearly, on its face, implicated him as an accountant, but nothing happened to him. Then at the end of the inquest he discovered that he was going to be referred to the DPP as a result of the evidence, more probably than not following Mr Huang's evidence and his being granted a s 61 certificate, and still nothing happened and nothing happened for three years until the ex officio indictment was filed in this Court. That is a long time to wait for something to happen. 51. The substantive offence ought give rise to a prison term. I accept the submission made on behalf of the DPP that s 5 of the Crimes (Sentencing Procedure) Act 1999 threshold has been reached. 52. Determining the length is a difficult task because this is a most unusual case of arson. The fact is this offender was not going to make much out of it. He was not the person who actually set the fire and there is no evidence to indicate just what his involvement was. He was the only one who was going to gain but not much. In fact, he got nothing and more probably than not was out of pocket. He has been required to be available to answer questions, to give evidence and to wait. He has moved on with his life and has not committed one single offence since and his risk of reoffending is low. There is a need for general deterrence in all sentences and particularly so for arson offences. 53. But if sentences for this sort of offence or for any offence, for that matter, is to send a message to others in the community, that burning down properties in order to make false insurance claims will lead to jail terms, in my view those sentences should be reasonably close to the events. That is not the case here. 54. This sentence is now over eight years from the time the offence was committed and none of this delay is the fault of the offender. The delay in determining to hold an inquest was excessive and unexplained. The delay from the suspension of the Coroner's inquiry to the laying of charges is not only unexplained but inexplicable. I accept, despite the lack of evidence from the offender, that as a matter of logic and by inference, that during all of this time the offender has had this hanging over his head and in fact, I also accept that to an extent, some of the investigation appears to have been extremely dogged and determined, albeit not leading to actual charges until very late in the piece. It would be impossible, in my view, for this not to have had an adverse impact on his wellbeing and ability to get on with life and it is a factor I take into account in the way set out by the decision of Coles v R. The impact of delay as referred to in that case is to allow the Court to mitigate the appropriate sentence in the circumstances of an individual case and that is the way that I propose to deal with it in this matter. 55. For all of those reasons I have come to the conclusion that a custodial penalty is called for and that that custodial penalty should be for a period of two years. He has not served any time in jail because he has been on bail since the ex officio indictment was first before the Court. 56. As to the fraud offences, it may be that they would not have even ended up with a term of imprisonment had they been dealt with in the Local Court. I will subsequently deal with them by fixing short terms of imprisonment. 57. Because the substantive offence has given rise to a term of imprisonment of two years it is open to me, where appropriate, to consider whether or not it may be served some way other than by way of full time custody. I take into account the submission made on behalf of the DPP in the written submissions put to the Court by the Crown Prosecutor that bearing in mind the issues of delay, rehabilitation and the nature of the criminal history, in addition to the offender's subjective circumstances, the offence does not call for the imposition of a full time custodial penalty. I accept that that is an appropriate submission to make in the circumstances. 58. I do not propose to refer the offender for consideration to serve his sentence by way of intensive corrections order. It appears to me that that would be a waste of the Court's time and the resources of the State given that his medical condition means that he is unlikely to be able to undertake a community service component of that order. In the circumstances, given that I have accepted that an alternative to full time custody is available, I propose to deal with that sentence by ordering that it be served by way of a suspended sentence bond pursuant to s 12 of Crimes (Sentencing Procedure) Act. 59. Equally, then, I will be setting six month terms of imprisonment for the two fraud offences, which will also be ordered to be served by way of s 12 suspended sentence bonds, each of them concurrent with the other. For those reasons then I make the following formal orders: 1. For each offence the offender is convicted. 2. For count 1 he is sentenced to a term of imprisonment of two years. I suspend that sentence pursuant to s 12 of Crimes (Sentencing Procedure) Act on his entering into a good behaviour bond for the period of the sentence, to come up for sentence at any time for any breach committed during the term of the bond. I do not propose to add any additional conditions to that bond. 3. For counts 2 and 3, in each case, he is sentenced to a term of imprisonment of six months. Each of those also suspended pursuant to s 12 of Crimes (Sentencing Procedure) Act on his entering into a good behaviour bond, to come up for sentence at any time if called on for any breach committed during the term of the bond. Equally, I do not propose any additional conditions to be attached to those bonds. 1. Mr Hassoun should understand that provided that there is no appeal against this sentence, and given the submissions of the Crown Prosecutor, one would rather hope there would not be but nonetheless, provided that there is no appeal against this sentence, that is his sentence. His sentence is in fact a term of imprisonment of two years. Whether he serves that sentence it he community or in jail is entirely a matter for him. If he complies with the conditions of the bond, it will be suspended, he will serve that term of imprisonment in the community. 2. If he breaches any of those conditions, the bond will be called up, initially before me, if I am available and if it is anything other than a trivial breach, I will have no alternative but to revoke the bond and then I will just have to make a decision about how long a non-parole period there should be and almost certainly he would have to go to jail for a period of time. I have not ordered any supervision component because it is not necessary, according to Probation and Parole. He will need to read the bonds, look at them carefully and see what they require him to do.