Chief Judge Rozenes. Melbourne REASONS FOR SENTENCE ---

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1 !Undefined Bookmark, I IN THE COUNTY COURT OF VICTORIA Revised (Not) Restricted Suitable for Publication AT MELBOURNE CRIMINAL DIVISION Case No. CR THE DIRECTOR OF PUBLIC PROSECUTIONS v HABIB KHOURY --- JUDGE: Chief Judge Rozenes WHERE HELD: Melbourne DATE OF HEARING: 11 December 2012 DATE OF SENTENCE: 11 December 2012 CASE MAY BE CITED AS: DPP v Khoury, Habib MEDIUM NEUTRAL CITATION: [2012] VCC 1959 REASONS FOR SENTENCE --- Subject: Catchwords: Obtaining property by Deception Bushfire Appeal Fund - considerable character evidence psychiatric and psychological evidence major depressive disorder remorse full restitution Legislation Cited: Cases Cited: Sentence: 12 months imprisonment wholly suspended for 12 months --- APPEARANCES: Counsel Solicitors For the Director of Public Prosecutions Mr A Schwartz Office of Public Prosecutions For the Accused Mr M Tovey QC Grigor Lawyers

2 HIS HONOUR: 1 Habib Khoury you have pleaded guilty to one charge of obtaining property by deception, the maximum penalty for which is 10 years imprisonment. The offending occurred between 17 February 2009 and 20 June You have no prior convictions. 2 The facts of the case were opened by Mr Shwartz and are contained in the Prosecution Opening, Exhibit A in these proceedings. In brief summary, the offending related to false claims totalling $110,000 made by you against the Victorian Bushfire Appeal fund for a loss suffered by in the Black Saturday bushfires of February Your property at Pheasant Creek in the Kinglake region consisted of 2.5 acres with a licensed supermarket with residential dwelling attached and two sheds. The supermarket and attached dwelling were leased out and you were in the process of renovating the larger of the two sheds as your residence. At the time of the fires the renovations were 95% complete. Your family home was at Lower Templestowe where at all relevant times you lived with your family. 3 On 17 February 2009 and 27 April 2009 you made applications to the Victorian Bushfire Appeal fund falsely stating that the Pheasant Creek property was you primary or principal residence. As a consequence you received a total of $111,000 from the Fund to which you were not entitled. As a result of your actions the tenants of Pheasant Creek, who were displaced as a result of the fire had their claim for assistance rejected. 4 On 15 February 2010 you attended the police station in Doncaster and were interviewed and you made no admissions. 5 In response to my query about the appropriate range applicable in your case, the prosecutor conceded that all sentencing options were open and that a fully suspended sentence was with the range of sentences properly available to 1 SENTENCE

3 me. 6 Tendered on your behalf was a folder of Plea materials exhibit 1, containing a bundle of 22 character references, documents relating to building work and purchases, a psychological and psychiatric report as well as some other medical reports, overseas travel records and photographs of the site. 7 The flavour of the many character references was that you are a caring and religious man who is well regarded by your community for your generosity, charity work and involvement in your local church and that your offending was completely out of character. Family members spoke of your commitment to your family and the example you had set for them. Members of the Pheasant Creek community also spoke highly of you. 8 In regards to your personal circumstances you are 61 years old and married with five children and ten grandchildren. You came to Australia when you were 17 from Lebanon, you were married at age 23, and worked for some 30 years as a self-employed milk bar and general store owner. You stopped working around 2005 and your wife ceased work around You now live off your investment income. One such investment property was the property at Pheasant Creek. 9 The prosecution accepted that at the time of the fire you had been renovating the Pheasant Creek property with the intention to move there and settling down in your retirement and that the renovations were almost complete. As a result of the fires, you lost your planned retirement house in which you have paid for significant renovations and rental income. Mr Tovey QC, who appeared for you said that you were an excellent father who had worked hard to provide for education of your children, All of who had succeeded in their studies and were engaged in various professional pursuits. He said that you cared for your mother who was very sick as well as your sister who suffered from cerebral palsy. I am satisfied that you have made substantial personal 2 SENTENCE

4 and charitable contributions to your community. 10 You daughter, a psychiatric nurse, gave evidence that you were devastated by the fires and the loss of your dream to settle on the land you loved and which you thought might recreate the village life of your homeland, Lebanon. She said that you were regarded as a good, honest and trustworthy man and that your admission of this wrongdoing caused you a great deal of shame. She said that as a result of the bushfires you now suffer a significant depressive illness as well as have other significant medical issues as set out in the report of Dr Abrahams She feared that you would not cope well in a prison environment as you worry about everybody else except yourself. 11 Mr Tovey submitted that your mental health issues were causally linked to the offending and as such I was able to find a reduction in your moral culpability. Dr Chopra, your treating psychiatrist, said that you were suffering from a depressive illness which had been exacerbated by you being charged. He said that you were constantly pre-occupied with the bushfires and that you were significantly impaired and are unable to return to your previous levels of enjoyment of life and employment and will require long-term ongoing psychiatric treatment. 12 Mr Cummins in his psychological report dated 28 November 2012 said that you have developed a Major Depressive Disorder in relation to the loss of your property in Pheasant Creek, and that you have probably developed Post Traumatic Stress Disorder. He also recounted the guilt, shame and remorse you feel following your offending. Mr Cummins stated that you are currently receiving psychiatric treatment and will need to do so for the rest of your life. Mr Cummins stated that at the time you signed the Bushfire Appeal fund applications you were suffering from a mental illness which adversely impacted on you perception, judgement and reasoning, and that you continue to suffer from such mental illness. 3 SENTENCE

5 13 This view was supported by your daughter. 14 The basic purposes for which a court may impose a sentence are punishment, deterrence (both specific and general), rehabilitation, denunciation, and protection of the community. In sentencing, I must have regard to a range of matters such as the seriousness of the offence, your culpability for it, your personal circumstances and those of the victim if any. I am required to balance the interests of the community in denouncing criminal conduct with the interests of the community in seeking to ensure that as far as possible offenders are rehabilitated and reintegrated into society. 15 Obtaining property by deception is a serious offence as demonstrated by the maximum penalty of 10 years imprisonment. The fact that this deception was perpetrated on the Bushfire Appeal fund, does not in my view make this offence any more or less serious, and is simply a circumstance of the offence. I do note however that the community would likely view a deception perpetrated on the Fund as carrying more opprobrium than if this was some other government agency. 16 I take in account your plea of guilty albeit that it came late in the piece as well as the fact that you have made full restitution which was also was late coming. I am prepared to discount your sentence for your mental and physical health issues. In particular I find that your moral culpability is reduced because of your mental illness and that your detention in custody for this reason would be more onerous and would be deleterious to your mental health. 17 You have no prior convictions and have previous excellent character. I accept that you are ashamed of what you have done and that you recognise that you have let down yourself and your family. 18 A theft of such an amount of money usually results in a sentence of imprisonment. I accept that it was your intention to live at the property at 4 SENTENCE

6 some time in the future and that the misrepresentation can, to your advantage be properly viewed in that light. It might have been otherwise if the claim that there was a residence was entirely false. I also take into account the delay of some four years, which although in part caused by you initially contesting the matter has nevertheless provided a period of lengthy uncertainty which I accept has had a deleterious impact upon your life. As you said to Mr Cummins, The fire has hit me terribly and since then I ve been living in agony. Now the thought of imprisonment is killing me day and night. I ve got health problems. My social life is destroyed and my reputation within the community has gone down. I was always a charitable person. I gave money to the Royal Children s Hospital appeal and I helped raise money for the Black Saturday Bushfire appeal. The irony of this statement is palpable. 19 I am satisfied that you are genuinely remorseful and that you are not likely to offend in this way again. 20 I believe that no useful purpose would be served by imposing upon you a sentence to be served immediately. Your personal circumstances, the circumstances surrounding the commission of the offence and your mental state at the time and now, combine to permit me to fully suspend a sentence of imprisonment. 21 On the charge of obtaining property by deception you are be convicted and sentenced to be imprisoned for 12 months. I propose to wholly suspend the sentence for a period of 12 months. Before I do that I am obliged to tell you that you have been convicted and sentenced to a term of imprisonment, but that you will not have to serve that sentence immediately. 22 However, if you commit an offence punishable by imprisonment, either in Victoria or elsewhere, during the period of the suspension, then you may be brought back to be further dealt with, and absent exceptional circumstances, will be required to serve the suspended sentence. Do you understand that? 5 SENTENCE

7 23 OFFENDER: Yes. 24 HIS HONOUR: Very well, I will suspend the sentence. 25 Section 6AAA of the Sentencing Act requires me to state the total effective sentence and the non-parole period that I would have imposed had you pleaded not guilty and been convicted. Had you been convicted after a trial, I would have sentenced you to 18 months imprisonment with a non parole period of 12 months. 6 SENTENCE