By Paul Gregoire and Ugur Nedim
The Australian Government Disaster Relief Payment (AGDRP) is a one-off $1,000 amount provided to Australian residents impacted by a disaster. And due to the circumstances victims of disasters face, proof of identity doesn’t need to be cited immediately, but rather within 28 days of applying.
Over the period 15 January to 23 April 2020, NSW resident Yosef Zreika successfully obtained AGDRP payments 35 times on false grounds, using other people’s identities or fake ones. This was done over the phone via Services Australia, and he repeatedly lied about being a victim of bushfires.
Over that same period, Zreika made 17 additional AGDRP claims that were turned down due to issues around his lack of proof, while he also attempted to submitted 14 more fraudulent claims to the same fund, which he didn’t end up going through with.
Zreika went on to apply for a COVID-19 crisis payment, roughly $330, on 13 May 2020, via his JobSeeker payment account. And on the following day, he provided a doctored document purporting to be a public health quarantine order.
He also made a number of other claims to various agencies and businesses, including Centrelink and Medicare. Some of these were successful, while others were not.
One of these additional instances saw Zreika pose as a Department of Family and Community Services officer in mid-2020, and successfully obtain two nights’ accommodation at Campbelltown’s Hermitage Hotel, maintaining that he was a person in crisis.
Zreika pleaded guilty to four federal offences relating to fraudulent conduct. These included two counts of obtaining financial advantage through deception, contrary to section 134.2(1) of the Criminal Code (Cth). This is an offence that carries up to 10 years imprisonment.
The other two chief charges involved two counts of dishonestly intending to obtain a gain, contrary to section 135.1(1) of the Criminal Code, which is a crime that also carries up to 10 years in prison.
The offender was further sentenced in relation to one count of dishonestly causing financial disadvantage to the Hermitage Hotel, contrary to section 192E(1)(b) of the Crimes Act 1900 (NSW). This is another offence that carries up to 10 years inside.
And under the terms of section 16BA of the Crimes Act 1914 (Cth), seven other federal offences were placed on a schedule related to the first count the fraudster plead guilty to, so that the court could take these offences into account on sentencing.
On 8 June 2021, NSW District Court Judge Andrew Colefax sentenced Zreika to 4 years and 6 months imprisonment, with non-parole set at 3 years. This sentence reflected a 25 percent discount granted to the defendant in respect to the utilitarian value of his early guilty pleas.
On appeal
Zreika appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 7 October this year. The inmate did so based on three grounds: the failure of the sentencing judge to make factual findings, his excessive intervention in the case and that the sentence was manifestly excessive.
The first ground involved Judge Colefax refuting Zreika’s claim that he’d been beaten by his father when he was 14 years old due to his homosexuality on the basis that the defendant was a compulsive liar.
Zreika argued that the sentencing judge shouldn’t have knocked back his assertion based on his habit of not telling the truth, as, in citing past cases, he found that it was up to his Honour to produce counter evidence to support his reasoning for disregarding the claim.
But Justice David Davies found that there was no evidence Zreika had been beaten by his father, as the offender’s own statements had contradicted this, and that based on what was before the court, there wasn’t enough evidence to establish a dysfunctional upbringing either.
In terms of the second ground, the NSWCCA justice explained that Zreika had submitted that “interventions by the sentencing judge gave rise to a miscarriage of justice”, denied him procedural fairness, and “gave rise to an apprehension of bias”.
To support this, the inmate relied on two interventions. The first saw Zreika admit to the court that he’d lied during his April 2020 police interview and whilst conducing an interview regarding his sentencing report in March 2021. And he added that this had been eating him up inside.
Justice Davies, however, put it to the defendant that it didn’t seem plausible that he’d been wrestling with his guilt about lying for close to a year after speaking to police, especially as he then decided to tell the same untruths during the interview for his sentencing report.
The second instance involved Zreika claiming in court that he’d concocted a story about being intimidated into committing his crimes during the 15 minute period between his arrest and police interview.
But when the judge pressed this point, the defendant admitted that he’d devised the story earlier.
The NSWCCA justice also rejected this ground of appeal, as he outlined that these instances weren’t a sign of procedural unfairness, but rather the sentencing judge had raised the point that he had difficulty accepting some evidence and gave the defendant a chance to address this.
Manifestly excessive
Zreika gave four reasons as to why a lesser sentence was warranted. These included the main victim having been the government, his system being unsophisticated, the money taken being insignificant and that the full duration of his offending behaviour was a short period of time.
To support this, Zreika pointed out that while he’d managed to obtain $36,000, he’d failed to gain a further $37,000. And he added that in other fraud cases where a sentence similar to his had been handed down, the offending involved related to much larger sums of money.
And on comparing Zreika’s sentencing outcome with those of other cases, Justice Davies found that the inmate was correct, as the majority that did involve similar sentences were in relation to much larger amounts and the planning connected to these other crimes was much greater.
His Honour added that the sentencing judge had found that in relation to Zreika’s chief offence, the objective seriousness amounted to “just below midrange”, whereas for all the other crimes he’d been convicted over sat at “the middle and the bottom of the range or at the bottom of the range”.
The amounts involved in this case, the relatively short period of offending, the unsophisticated methods employed and the fact that most of the time Zreika failed to obtain what he was after, all led the appeals justice to find “the aggregate sentence imposed was manifestly excessive”.
Resentencing
As the final ground was made out, it was necessary for the appeals court to resentence Zreika.
In doing so, Justice Davies found that there was no evidence that the offender had a dysfunctional upbringing, and nor was there any to show he was remorseful, especially as it was found he continued lying in court.
Although his Honour did make a finding of special circumstances due to it being Zreika’s first time in custody and that he’d been facing COVID-related restrictions in prison, which meant that his non-parole period could be less than the statutorily required three-quarters of the head sentence.
So, on 9 December, Justice Davies quashed the June 2021 District Court sentence and imposed a new sentence of 3 years and 6 months, with non-parole set at 2 years and 3 months prison time.
And NSWCCA Acting Justice Anna Mitchelmore and Justice Peter Hamill both agreed with their colleague’s orders.
