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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Faris; DPP v Fares |
Citation: | [2024] ACTSC 115 |
Hearing Date: | 22 March 2024 |
Decision Date: | 22 March 2024 |
Before: | Berman AJ |
Decision: | See [50] |
Catchwords:
| CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and punishment – sentence – insurance fraud – attempt to obtain financial advantage by deception – staged motor vehicle collision – diversion of important community resources – lack of remorse – general and personal deterrence of importance – where offenders suffered genuine injuries – where offenders are husband and wife – consideration of hardship to others |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 42 |
Cases Cited: | DPP v Moala (No 3) [2023] ACTSC 306 |
Parties: | Director of Public Prosecutions Lina Faris (First Offender) Rabea Fares ( Second Offender) |
Representation: | Counsel M Howe ( DPP) D Ager ( First Offender) T Pickering (Second Offender) |
| Solicitors ACT Director of Public Prosecutions Peter Agoth & Associates ( First Offender) Kanzi Lawyers (Second Offender) |
File Numbers: | SCC 125 of 2022 SCC 126 of 2022 SCC 127 of 2022 |
BERMAN AJ:
Introduction
1․ On 27 February 2020, two vehicles collided on Eucumbene Drive. A silver BMW convertible driven by Adam Kilani ran up the back of a black Audi SUV which was being driven by Lina Faris with her husband, Rabea Fares, in the front passenger seat.
2․ The three people in the two vehicles made insurance claims. Those claims were dishonest because, although most people would describe a collision between two motor vehicles as an accident, this was no accident at all.
3․ In truth, Mr Kilani deliberately drove his BMW into the back of the Audi, which was stationary at the time. This was done as part of a plan hatched between the three people in the cars to profit by making dishonest claims to their insurers.
4․ Although superficially in good condition, an expert motor vehicle examiner was able to determine that in the time leading up to the collision, the Audi had developed a number of faults which would have been made obvious to the driver through warning lights on the dashboard. More spectacularly, the BMW, which had been bought for $25,000, was insured for $138,000.
The offences
5․ Ms Faris and Mr Fares were charged with three offences each, those offences relating to three different insurance claims. They pleaded not guilty to each offence, but after a relatively short trial, in which there was little cross examination of prosecution witnesses, they were each found guilty by a jury.
6․ The three offences for which Lina Faris is now to be sentenced are:
- attempting to dishonestly obtain a financial advantage from Suncorp Insurance by deception in relation to the claim made for damage to the Audi;
- being knowingly concerned in Mr Kilani's attempt to dishonestly obtain a financial advantage from NRMA Insurance in relation to the claim made for damage to the BMW; and
- attempting to dishonestly obtain a financial advantage from NRMA Insurance by deception in relation to the personal injury compulsory third party insurance claim made for injuries which Ms Faris said she suffered.
7․ For the sake of completeness, I should note that there was a transfer charge for Ms Faris. The prosecution concedes that that offence cannot be proved and so I find Ms Faris not guilty on that charge.
8․ Turning now to Rabea Fares, he is to be sentenced for:
- agreeing with Ms Faris to attempt to dishonestly obtain a financial advantage from Suncorp Insurance by deception in relation to the claim made for damage to the Audi;
- being knowingly concerned in Mr Kilani's attempt to dishonestly obtain a financial advantage from NRMA Insurance in relation to the claim made for damage to the BMW; and
- attempting to dishonestly obtain a financial advantage from NRMA Insurance by deception in relation to the personal injury compulsory third party insurance claim made for injuries which Mr Fares said he suffered.
9․ What led to the various claims not being paid and, ultimately, their conviction, was a combination of bad luck, bad planning, and a poor understanding of how experts could determine that what the offenders said about the circumstances of the collision was untrue.
10․ Although Mr Kilani claimed that he did not know Mr Faris, by coincidence, one of the police officers who attended the collision had some years earlier been to an address where both Mr Kilani and Mr Fares were working as painters.
11․ Further, they supplied their mobile telephone numbers to that police officer, and call charge records, together with information stored on the Audi’s infotainment system, revealed a number of telephone calls between those two telephone numbers leading up to the collision.
12․ Ms Faris said that she was driving at about 60 kilometres an hour at the time of the collision, but a very observant motorist, running late for an appointment, noticed the Audi travelling slowly shortly before the collision, and expert evidence revealed that it was stationary when the BMW ran into it.
13․ Mr Kilani was driving his motor vehicle at 30 kilometres an hour, below the speed limit, before applying his brakes and driving his BMW towards the back of the Audi, not away from it, as might be expected.
14․ Mr Kilani initially claimed that he was a passenger in the BMW and that his sister was driving it. This was revealed very quickly to be a lie. Mr Kilani changed his story so that he said his sister arrived at the collision scene shortly after it occurred. But Ms Faris told police and insurance investigators that the driver of the BMW was a woman. This was obviously part of the prearranged plan, but her lie about the gender of the driver was obvious once Mr Kilani changed his story in response to overwhelming evidence showing that he was the driver.
Objective seriousness
15․ These were all significant offences. Insurance fraud is a serious matter, as explained by Burns J in R v Samani [2016] ACTSC 257 (Samani), as follows:
[26] Offences involving insurance fraud, or attempted insurance fraud, are not victimless crimes. Where such offences succeed, the whole community pays through increased premiums. Such offences also make it more difficult for deserving cases to access benefits in a timely manner, because insurers become wary of fraudulent claims.
[27] Even where such offences do not succeed there is an increased cost to the insurer occasioned by the need to process and scrutinise claims. In addition, such offences are relatively easy to commit but difficult to detect. All of these circumstances speak of the need for general deterrence in sentencing for this type of offending.
16․ It is one thing to make false insurance claims, but what the offenders did in staging this motor vehicle collision required the attendance of police, paramedics, and the fire brigade. The two offenders were admitted to hospital and they each underwent a number of medical investigations. Their deliberate crash likely caused the diversion of important community resources away from people with more genuine needs.
17․ Nor was this a spur of the moment thing. Agreements had to be reached so that the two vehicles could collide in an area where there was unlikely to be anyone to see the collision. Mr Kilani’s sister needed to arrive after the collision but before Emergency Services or other witnesses. Both of the present offenders had to agree to pretend that Mr Kilani’s sister was driving the BMW. Efforts had to be made to ensure that the vehicles were damaged enough to be written off without causing serious injury to the people inside them.
18․ And then there was the conduct which occurred after the collision. Claims were made, interviews were conducted, and lies were repeated.
19․ Had the scheme succeeded, the offenders, and Mr Kilani too, stood to make considerable sums of money:
(a) the offenders’ Audi, the subject of Count 1, was insured for $55,000.00;
(b) the mid-range estimate for Ms Faris’ compulsory third-party insurance claim was $32,500.00;
(c) the mid-range estimate for Mr Fares’ compulsory third party insurance claim was $59,000.00; and
(d) as already mentioned, Mr Kilani’s BMW was insured for $113,000.00 more than he paid for it.
Subjective circumstances
Lina Faris
20․ Lina Faris is a 44-year-old woman who has a minor criminal history, having committed offences of common assault a few years ago and an offence of committing a public nuisance last year in Queensland.
21․ She had something of an unstable childhood and has very limited contact with her parents and siblings.
22․ She has been married to her co-offender in this matter for 24 years. They have four children, two of whom are adults. She has been the primary care giver, as her husband ran a business in order to provide for the family.
23․ She completed school without any disciplinary issues and completed some post-school certificates but has never been employed. She is supported by Centrelink payments and her husband’s income. She has never used drugs or consumed alcohol.
24․ Ms Faris has no regular associates outside her immediate family and spends most of her time on household and family matters.
25․ About 15 years ago, she was diagnosed with chronic fatigue, has had a hernia surgically repaired, and was recently found to have polycystic ovary syndrome. Her mental health has fluctuated, having been diagnosed with depression over 15 years ago. She is currently experiencing significant levels of stress as a result of these proceedings. A mental health plan suggests that she suffers from severe depression, anxiety, confusion in thoughts, and stress.
Rabea Fares
26․ Rabea Fares is a 48-year-old man with a more significant criminal history than his wife. He has committed offences of common assault and received a sentence of imprisonment for an offence of committing an act of indecency.
27․ Mr Fares was born in Jordan. He had a good upbringing, free from violence and substance use. He completed school and worked in building and hospitality before coming to Australia to marry Ms Faris, his co-offender, in 2000. He has been self-employed since and is not receiving Centrelink payments.
28․ Like his wife and consistent with his religion, he does not use drugs or alcohol. He, too, has a limited social circle, spending most of his time working or with his family. He has no physical or mental health issues.
Consideration
29․ I have already spoken about the factors which make these offences particularly serious. In addition, it should be noted that both the pre-sentence reports make the observation that there was no suggestion that the offenders had significant debts or were in financial difficulties. That is consistent with evidence given in the trial concerning Mr Fares’ earnings. In that sense, it can be observed that there is no evidence that these offences were committed out of need and are more likely to have been motivated by greed.
30․ In that regard, although Mr Kilani’s BMW was grossly over-insured, there is no evidence that either of the present offenders knew of that fact, nor is there any evidence of an arrangement between the three of them that Mr Kilani’s profits would be shared.
Deterrence
31․ As was stated in Samani, general deterrence is of importance when sentencing offences of this kind. In the present case, personal deterrence is also important given the lack of remorse shown by both offenders. Perhaps there can be some moderation of the need for personal deterrence because both offenders received injuries from their staged crash, which may give them pause before they try anything similar again. But I agree with the submission made by the prosecution that their lack of insight into their offending makes their rehabilitation less likely.
32․ In an effort to assist me in assessing the appropriate sentences to impose in this case, the prosecutor referred to the sentence imposed in Samani, another case involving a staged car crash and fraudulent insurance claims. I am grateful for such assistance but the assistance I can get from a single case is, as the prosecution acknowledges, limited.
33․ The maximum penalty for each offence is 10 years’ imprisonment. There is some guidance as to the seriousness with which the legislature views offences of this kind.
Hardship to others
34․ Section 33(1)(o) of the Crimes (Sentencing) Act 2005 (ACT) requires me to take into account the probable effect any sentence will have on the offenders’ family or dependents. Hardship to third parties does not have to be exceptional before it can be taken into account: see DPP v Moala (No 3) [2023] ACTSC 306 at [47]-[48] per McCallum CJ. This issue cannot be considered in relation to each offender in isolation. They have the same family and dependents.
35․ Should one offender receive a sentence of full-time imprisonment then the consequences for the offenders’ children are of such significance that it may be the case that the other offender receives a sentence other than full-time imprisonment no matter how deserved a sentence of full-time imprisonment would be. There is always something a bit distasteful about offenders such as the present relying on hardship to their children in circumstances where they committed those offences together in full knowledge that their children would suffer if they were both sent to jail.
36․ Nevertheless, the effects on the children were their parents both sentenced to full-time custody are very important to deciding the appropriate sentences in the present case.
37․ I note in this context that Ms Faris has been the primary caregiver to her family and there is no evidence that there are other family members who could take on this role. The offenders’ elder daughter gave evidence today. There is no real prospect of she and her sister, both studying at the moment, giving up their studies to look after their pre-teen brothers.
38․ Of course, even if Ms Faris receives a sentence of other than full-time custody, there will still be consequences for the children if Mr Fares is sent to jail. The family depends on his income, and they will suffer at least financially. However, it is sadly the case that when the breadwinner of a family is sentenced to jail for serious criminal behaviour, as a result, other innocent people may suffer. If the consequence of that consideration were that breadwinners could not be sent to jail, then the law would soon cease to have a deterrent effect.
39․ Whilst I take into account the probable effect of a sentence of full-time imprisonment imposed upon Mr Fares, it may still be the case that such a sentence is required in all the circumstances of this case.
Parity
40․ It is difficult to see who was the prime mover behind this offending. Certainly Ms Faris was the person who engaged with insurance investigators and the like, but that was likely to have been because she spoke English well, whereas her husband did not.
41․ Neither offender should have a justifiable sense of grievance when the sentences I will impose upon them are compared. That said, there is little to distinguish between them apart from the issue of hardship to their children, which explains the difference in the sentencing outcomes for the two offenders.
Injuries
42․ Both offenders suffered genuine injuries, although the extent to which they are able to call that fact in aid as a factor mitigating the sentence I should impose upon them is limited. It was a fundamental part of the plan that a significant collision was to occur.
43․ Having the vehicles repaired under their insurance policies would have been of no benefit at all to the people involved in this fraudulent scheme. Both offenders must have thus realised the likelihood of them being injured. They can hardly benefit from the fact that what they envisaged would likely happen turned out to have happened.
Prospects of rehabilitation
44․ Despite the jury's verdicts, both offenders continue to assert their innocence. They are not to be punished for that, but their attitude towards their offences clearly means that they are not remorseful for what they have done.
45․ On the other hand, the failure of their scheme, the injuries they genuinely suffered, and the sentence I will impose upon them, all suggest that they are unlikely to commit offences of this kind in the future.
Accumulation
46․ Although there was only one staged car crash, there were multiple false insurance claims made. There is a need for a level of accumulation, perhaps a modest one, to reflect that fact.
Intensive correction orders
47․ Counsel for both offenders conceded that sentences of imprisonment were required but submitted that they should be served by means of intensive correction orders.
48․ In the case of Ms Faris, whilst a sentence of full-time imprisonment is deserved, the hardship which would be occasioned to her children should she be sent to jail is such that I accept Mr Ager's submission as to how her sentence of imprisonment should be served.
49․ I have reached a contrary conclusion regarding Mr Fares. A sentence of other than full-time imprisonment would not be appropriate in the circumstances of this case. The effect of his imprisonment upon his children, whilst significant, is not such that I should impose upon him a sentence which fails to reflect the objective gravity of this offending.
Orders
50․ For those reasons, the following orders are made:
Lina Faris
(1) Ms Lina Faris is convicted of the offence of attempting to, by deception, dishonestly obtain a financial advantage from someone else (CC2021/10573) and sentenced to a period of imprisonment of one year and six months commencing from 22 March 2024 and expiring on 21 September 2025.
(2) Ms Lina Faris is convicted of the offence of being knowingly concerned in an attempt to dishonestly, by deception, obtain a financial advantage from someone else (CC2021/10572) and sentenced to a period of imprisonment of one year and six months commencing from 22 June 2024 and expiring on 21 December 2025.
(3) Ms Lina Faris is convicted of the offence of attempting to, by deception, dishonestly obtain a financial advantage from someone else (CC2021/10574) and sentenced to a period of imprisonment of one year and six months commencing from 22 September 2024 and expiring on 21 March 2026.
(4) The overall sentence in respect of Ms Lina Faris is thus one of imprisonment for two years commencing today, 22 March 2024 and expiring on 21 March 2026.
(5) The sentence of imprisonment in respect of Ms Lina Faris is to be served by way of an Intensive Correction Order.
(6) The conditions of Ms Lina Faris’ Intensive Correction Order will be the core conditions in s 42 of the Crimes (Sentence Administration) Act 2005 (ACT).
(7) In relation to the charge of giving false or misleading information (CAN10488/21), I find Ms Lina Faris not guilty.
Rabea Fares
(8) Mr Rabea Fares is convicted of the offence of attempting to, by deception, dishonestly obtain a financial advantage from someone else (CC2021/10576) and sentenced to a period of imprisonment of one year and six months commencing from 22 March 2024 and expiring on 21 September 2025.
(9) Mr Rabea Fares is convicted of the offence of being knowingly concerned in an attempt to dishonestly, by deception, obtain a financial advantage from someone else (CC2021/10575) and sentenced to a period of imprisonment of one year and six months commencing from 22 June 2024 and expiring on 21 December 2025.
(10) Mr Rabea Fares is convicted of the offence of attempting to, by deception, dishonestly obtain a financial advantage from someone else (CC2021/10577) and sentenced to a period of imprisonment of one year and six months commencing from 22 September 2024 and expiring on 21 March 2026.
(11) The overall sentence in respect of Mr Rabea Fares is thus one of imprisonment for two years commencing today, 22 March 2024 and expiring on 21 March 2026.
(12) I set a non-parole period in respect of Mr Rabea Fares of one year commencing from 22 March 2024 and expiring on 21 March 2025. Mr Rabea Fares will become eligible to be released on parole on 21 March 2025.
I certify that the preceding fifty [50] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Berman Associate: Date: |