Hraiki v R [2019] NSWCCA 140 (28 June 2019)

Last Updated: 28 June 2019

Court of Criminal Appeal Supreme Court New South Wales

Case Name:	Hraiki v R
Medium Neutral Citation:	[2019] NSWCCA 140
Hearing Date(s):	17 May 2019
Decision Date:	28 June 2019
Before:	Bathurst CJ at [1]; Hamill J at [2]; N Adams J at [19]
Decision:	Application for leave to appeal against sentence refused.
Catchwords:	CRIMINAL LAW – crimes of dishonesty – discount for assistance – assistance provided very late – police aware of matters subject to assistance – possibility applicant to be called to give evidence – whether 5% discount for future assistance sufficient – discretionary and evaluative judgment – no error established
Legislation Cited:	Crimes (Sentencing procedure) Act 1999 (NSW), ss 23, 53A
Category:	Principal judgment
Parties:	Shadi Hraiki (Applicant) Regina (Respondent)
Representation:	Counsel: Y C Lin (Applicant) K Jeffreys (Respondent) Solicitors BPH Legal (Applicant) Office of the Director of Public Prosecutions (Respondent)
File Number(s):	2015/00074135
Publication Restriction:	Nil
Decision under appeal:
Court or Tribunal:	District Court of NSW
Jurisdiction:	Criminal
Date of Decision:	18 October 2018
Before:	Norrish QC DCJ
File Number(s):	2015/00074135

JUDGMENT

1. BATHURST CJ: I agree with Hamill J.
2. HAMILL J: Shadi Hraiki seeks leave to appeal against the sentence imposed in the District Court by his Honour Judge Norrish QC on 18 October 2018. The offences to which the applicant had pleaded guilty and the sentences imposed on him were set out in a helpful schedule included in the applicant's submissions:

Item	Offence	Max. Penalty	NPP	Total Term of Sentence
1 (7)	Recklessly Deal with Proceeds of Crime, namely, $303,841.57 - s. 193B(3) Crimes Act 1900	Imprisonment for 10 years		Imprisonment of 1 year 5 months; commencing 18 October 2018 and expiring 17 March 2020
2 (10)	Dishonestly obtain financial advantage by deception, namely an investment loan valued at $920,000.00 in the name of Sasi Kumar - s.192E(1)(b) Crimes Act 1900	Imprisonment for 10 years	Imprisonment of 9 months; expiring on 17 January 2020	Imprisonment of 2 years and 3 months; commencing 18 April 2019 and expiring 17 July 2021
3 (17)	Recklessly deal with proceeds of crime, namely, $173,340.28. - s.193B(3) Crimes Act 1900	Imprisonment for 10 years	Imprisonment of 8 months; expiring on 17 March 2020	Imprisonment of 1 year 9 months; commencing 18 July 2019 and expiring 17 April 2021
4 (22)	Recklessly deal with proceeds of crime, namely, $99,057.61. - s.193B(3) Crimes Act 1900	Imprisonment for 10 years	Imprisonment of 8 months; expiring on 17 March 2020	Imprisonment of 1 year 9 months; commencing 18 July 2019 and expiring 17 April 2021

3. In sentencing for count 10, the Judge also took into account some matters on a Form 1.
4. As will be seen, the primary Judge did not impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999 (NSW), preferring the transparency of imposing individual sentences and making them partially concurrent and partially cumulative. By virtue of the partial accumulation, the total effective sentence was one of 2 years and 9 months with a total effective non-parole period of 1 year and 5 months.
5. In his original notice of appeal, the applicant relied on the following grounds:
   • (1) That the sentencing discretion miscarried as the discount applied for the Appellant's assistance did not properly reflect the value of said assistance.
   • (2) The sentence imposed is manifestly excessive.
6. At the hearing of the appeal, counsel for the applicant abandoned the second ground of appeal. Accordingly, the issue to be determined is a narrow one. It concerns whether this Court should interfere with the discretionary and evaluative judgment made by the sentencing Judge as to the extent of the discount to be afforded to the appellant for his assistance to the authorities. Because the ground is so limited and because the evidence upon which the ground is based concerns material that was tendered on a confidential basis, it is inappropriate to refer in great detail to the facts upon which the ground of appeal is based.
7. However, it is necessary to set out in summary form the facts of the offences for which the applicant stood to be sentenced. The facts tendered before the sentencing Judge, and his Honour's description of the offences in his judgment on sentence, were very long and need not be recounted for the purposes of this judgment. The respondent’s written submissions contained the following summary of the agreed statement of facts signed by the applicant and his solicitor. I have omitted the references:

Briefly, each count on the indictment and charge on the Form 1 related to fraudulent loans obtained or attempted to be obtained from the St George and Westpac banks. Fraudulent documents, some of which were in false names, were used to apply for investment and mortgage loans, using fraudulently inflated values of units to be purchased.
While the applicant's role included acting as a conduit for the distribution of funds, it was not limited to that.
Charge 1 on the Form 1 (dishonestly obtain financial advantage by deception) concerned the applicant being a party to the provision of fraudulent documentation to the St George bank in the name of Turgay Behar (a real person) in order to obtain an investment loan for $920,000 to purchase two units at Church Street, Nelson Bay at inflated values. The units were purchased and on settlement the excess sum of $342,993.82 went into a bank account called "Daniels Lawyer Trust Account". Out of that sum, $60,443.82 was deposited into a bank account in the name of Shadi Hraiki trading as NSJ Financial Services.
Count 7 (recklessly deal with proceeds of crime) concerned the receipt by S&S Consultancy Pty Ltd, of which the applicant was the director, of $303,841.57 obtained by the co-offender Kumar as a result of Kumar's fraudulent application for an investment loan in a false name, Karumakara Paniker. Out of that sum, $28,518.57 remained in the account of S&S Consultancy.
Count 10 (dishonestly obtain financial advantage by deception) concerned the applicant being a party to the provision of fraudulent documentation to the St George bank in the name of Sasi Kumar (a fictitious person) to obtain an investment loan to the value of $920,000. Out of that sum, $75,000 was deposited into a bank account in the name of the applicant's wife Nouhad Hraiki, and $2,147.86 remained in the account of S&S Consultancy, a total of $77,147.86.
Count 17 (recklessly deal with proceeds of crime) concerned the receipt by S&S Consultancy Pty Ltd of $173,340.28 obtained as part of a fraudulent investment loan from the St George Bank in the name of Daniel Wu (a real person). Out of that sum, $57,481.25 remained in the account of S&S Consultancy.
Count 22 (recklessly deal with proceeds of crime) concerned the receipt of two cheques made payable to the applicant and paid into a bank account in the name of Shadi Hraiki trading as NSJ Financial services for $87,881 and $11,176.61 (a total of $99,057.61), obtained as part of a second fraudulent investment loan from the St George Bank in the name of Daniel Wu.
Charge 2 on the Form 1 (attempt dishonestly obtain financial advantage by deception) concerned the applicant being aware of the provision of fraudulent documentation to the St George Bank in the name of Sasi Kumar in order to borrow $920,000 to purchase two units at Nelson Bay. That loan was declined by the bank.

8. The summary of the facts in the prosecution's submission provides an adequate description of the offences for which the applicant was to be sentenced. They were, obviously enough, serious offences of dishonesty. There is no suggestion that the starting points settled upon by the sentencing Judge were other than appropriate. In my assessment, the starting points adopted by the sentencing Judge were well within the range of an appropriate exercise of the sentencing discretion in the circumstances of the applicant's case. Those circumstances included material tendered on his behalf which set out his personal circumstances.
9. Judge Norrish QC described the applicant's subjective case in the following terms:

The prisoner has written a letter to the Court expressing his regret and remorse for his criminal conduct claiming that ‘at the time of the offence’ he was ‘suffering a severe episode in my depression and anxiety leading to me not thinking clearly’. He said since being arrested in March 2015 he has reflected upon his personal circumstances as well as his mental health and has tried to address it through appointments with a psychologist. He apologised to the Court and expressed his desire to remain a supportive husband for his wife and his children and also to support his parents asking for ‘a second chance’.
There are a number of character referees who provided information about the prisoner, including various relatives and a minister of religion. There was the psychologist's report, which I will come back to, and medical records in relation to the health of his mother and father.
The prisoner at the time of the offending had no prior criminal convictions. This is a matter of substance to be taken into account in the context of my remarks earlier about ‘white collar criminals’ and offences involving ‘breaches of trust’. He has not been charged with any offences since his arrest in relation to this matter.
...
With regard to the character references that have been provided, each of the referees speak to the good character of the prisoner, his commitment to his family and the respect that is held for him within his community. Several of the family referees speak of his ‘good moral character’. A reference from a barrister Mr Jobson speaks to the realisation of the prisoner of the seriousness of the charges by the prisoner and his expressions of regret. I would have thought with the greatest of respect, without seeking to criticise that aspect of the reference, that given the prisoner's background and his employment he would have well known and well appreciated the character of the offending with which he was concerned.
Mr Jobson had known the prisoner ‘for a number of years in a professional and personal sense’ and that in his experience the prisoner has always acted in a ‘honest and professional manner’ with him.
He identified the charges as being ‘out of character’. I accept that they are out of character but, as with the other offenders, they are not impulsive and they are not offences committed in immediate reaction. They were all calculated offences involving planning as I have earlier identified committed over a period of time.
The prisoner is described by a friend of many years standing as ‘hardworking’ and generous to his friends. I am prepared to accept that observation along with other observations about his general character. I note, sadly, that as at August 2013 his mother was being treated for recurrence of colon cancer and a number of other conditions, she now being 68 years of age. His father likewise has a number of medical conditions including, as I read the reports, coincidentally and a past history of bowel or colon cancer and has been diagnosed with dementia. I understand the prisoner has taken some responsibility for his parents but the circumstances of their illnesses, his relationship with them and their lack of total dependence upon the prisoner, do not permit a finding of exceptional circumstances in respect of the interests of third parties in the proceedings.
The psychologist reports at some family history. I note in this regard the prisoner has three other siblings and I would expect they would be involved in sharing responsibility for the parents. The prisoner reports in fact that support for his parents is shared amongst the children. He is the third eldest. He comes from a close family. He has, as I said, past experience in the home loan and mortgage insurance industry. He worked for Aussie Home Loans as a credit analyst and has also worked as a mortgage insurance broker. He was, according to the history he gave the psychologist, ‘self-employed as a mortgage broker’ for approximately eight years selling his business in 2010 and taking up a courier run. Clearly by reference to his own history he would have had an understanding of matters relating to the need for honesty and providing information to mortgagees for the purposes of advancing moneys for purchase of properties. He was married in 2005 and unfortunately he has three children aged 12, 10 and 3. I can imagine their sadness at being separated from their father for a period of time as well as the sadness for his wife, and for the prisoner for that matter.
He has advised that over the years he has been under a considerable amount of stress both in relation to work commitments and matters relating to his family. He did consult psychologists in 2012 and 2014. He reported symptoms over a period of time to the psychologist. Since 2009 he said he had feelings of worthlessness, worry, sleep disturbance and panic attacks. He had difficulty keeping ‘worrisome thoughts from interfering with his attention to tasks at hand’. The psychologist set out various criteria for the diagnosis of particular disorders pursuant to DSM-V criteria in coming to the conclusion on the basis of symptoms reported by the prisoner that he had a ‘generalised anxiety disorder’ and had ‘symptoms consistent with the diagnosis of major depressive disorder’, both since 2009. I hasten to say these are not diagnoses. These are observations, or a recording, of symptoms consistent with a diagnosis. Some psychometric testing was undertaken which revealed ‘moderate anxiety’ and ‘moderate depression’. It is difficult to know based on this information which came first, the symptoms consistent with these conditions or matters reflecting upon the conduct of the prisoner that have caused him anxiety. He advised the psychologist ‘he had no excuse for his choices’ and he was adamant that he ‘did not want to downplay his role or involvement in relation to the offences’. He stated that his anxiety and depression had ‘impacted the way he had made decisions’, that he had ‘wrongly weighted the short term benefits of the financial gains he was making in comparison to investigating the process at greater length to see if there were long term consequences for his choices.’
He also advised the psychologist that he was ‘not fully aware of theprocess that he involved himself in and now takes full responsibility for hisactions.’ I find that latter assertion difficult to accept. The character of thefraudulent transactions would have been well known to the prisoner given his past work history and experience as I see it.
The psychologist expressed the opinion that there was a ‘psychological nexus between his condition and the offences before the Court’. He based this in the context of his assessment of the prisoner in part on the fact that the prisoner advised him that he ‘found himself making poorly though out decisions’ and had ‘struggled to evaluate alternatives’ and to ‘make judgments that are relatively free of biases’ as well as ‘appropriately apprais(ing) the consequences of decisions’. In my role as fact-finder, I find it difficult to accept these assertions by the prisoner such as they weigh upon the opinion or influence the opinion of the psychologist.
It is claimed in the report ‘that he did not weight the consequences of his decisions due to both not knowing that the process that he was involved in was illegal but also due to not making the time to carefully consider all the factors.’ This conclusion by the psychologist just does not accord with the evidence. It is not an analysis that is one that I can pay any weight to. It certainly does not accord with my understanding of the agreed facts to assert that the prisoner did not know that the process he was involved in was illegal. That, frankly, is completely wrong. It is at odds with both the summary of facts that I have identified and in the context of the prisoner's own history.
The psychologist goes on to express the view, reflected in learned writings which I am prepared to accept that a person's emotional state can influence the value and weight and ‘computation’ of ‘available options’. Clearly people under stress, for example fire fighters, policemen or whatever, having to make decisions under the pressure of the moment in fear of their own safety and other circumstances which are probably far more dramatic than what we are talking about now, have to make decisions that later on they might reflect upon as unwise but at the time appeared right. Nobody can criticise them for that.

10. There is no suggestion on appeal that the sentencing Judge dealt with the applicant’s personal circumstances in otherwise than an appropriate and compassionate way. The only question litigated on the appeal concerned the extent of the discount provided for the applicant’s assistance to authorities.
11. His Honour accepted a submission made on the applicant's behalf that in spite of the plea of guilty being entered at the last minute, which is to say the date that the trial was due to commence, a discount of more than 10% should be set. His Honour took into account that some of the delay resulted from difficulties in negotiations seemingly caused by the prosecuting authority. In any event, his Honour decided on a 15% discount for the plea of guilty. No complaint is made as to that assessment or figure, nor could there be. In the circumstances some might consider it to be generous.
12. His Honour then went on to consider material that was subsequently placed in an envelope and sealed. That material concerned the assistance provided by the applicant to the authorities. Like the plea of guilty, this assistance was offered at a very late stage. Having considered that material, and having been persuaded to increase the extent of the discount by 2.5%, his Honour decided that a discount of 5% for past assistance and 5% for future assistance was appropriate.
13. Accordingly, the total discount from the sentence, encompassing both the plea of guilty and the assistance to authorities, was one of 25%. The thrust of the applicant's submission was that the discount of 5% for future assistance did not reflect the level of assistance provided.
14. Initially, his Honour considered that a discount of 2.5% was appropriate for future assistance. However, when his Honour was told that there was some chance, or a greater chance than had previously been indicated, that the applicant may be called to give evidence in future criminal proceedings, he determined that the discount should be increased to 5%.
15. I have considered the material provided to the sentencing Judge in relation to the extent of the assistance provided by the applicant. Guiding the determination to impose a lesser penalty for assistance are the matters referred to in s 23 of the Crimes (Sentencing Procedure) Act. Subsection 23(2) provides a list of matters that must be considered in determining the extent of the discount and it is clear from the remarks on sentence that his Honour complied with those requirements. There is no manifest error in his Honour's consideration of the matter. The documents provided by the police describing the applicant’s assistance indicated that most, if not all, of the information was already known by police and prosecuting authorities. It was also the case that the assistance was provided at a very late stage.
16. The determination of the appropriate discount was one involving an evaluative judgment and a discretionary determination. There is nothing in the remarks on sentence to suggest that his Honour fell into any error in making those assessments. It may be that another judge would have provided a slightly higher discount for future assistance, just as another judge may have provided a smaller discount for the plea of guilty. However, that does not mean that the assessment made by Judge Norrish QC was in any way legally flawed.
17. In my view, this ground of appeal must be rejected.
18. I would refuse the application for leave to appeal against the sentence.
19. N ADAMS J: I agree with Hamill J.

**********