CATCHWORDS:
CRIMINAL LAW
sentence
money laundering and other offences arising out of identity fraud scheme
whether discount should have been allowed for assistance to authorities
whether sentence on money laundering count manifestly excessive

LEGISLATION CITED:
Criminal Code Act 1995 (Cth)
Passports Act 1938 (Cth)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)
Financial Transaction Reports Act 1998 (Cth)
Crimes Act 1914 (Cth)
Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999

CATEGORY:
Principal judgment

CASES CITED:
R v Louis Sukkar [2005] NSWCCA 55
R v Gallagher (1991) 23 NSWLR 220
R v Chu (NSWCCA, unreported, 16 October 1998)
Alchikh v R [2007] NSWCCA 345
Assafiri v R [2007] NSWCCA 159
Du Randt v R [2008] NSWCCA 121
R v Viana [2008] NSWCCA 188
R v Z [2006] NSWCCA 342, 167 A Crim R 436
R v Ansari [2007] NSWCCA 204, 70 NSWLR 89
R v Van Dang Tran [2007] NSWDC 310
R v Huang and Siu [2007] NSWCCA 259, 174 A Crim R 370

TEXTS CITED:

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2008/10553
McClellan CJ at CL
Simpson J
Hidden J
Thursday 19 August 2010

Arun KUMAR v R

Judgment

McCLELLAN CJ at CL: I agree with Hidden J.
SIMPSON J: I agree with Hidden J.
HIDDEN J: The applicant, Arun Kumar, pleaded guilty in the District Court to an indictment containing twenty counts, representing his involvement in an extensive identity fraud scheme. Most were Commonwealth offences, but there were also some State offences. They were as follows:
Count 1: Money laundering, that is, dealing with money, intending that it would become an instrument of crime, contrary to s 400.4(1) of the Criminal Code Act 1995 (Cth);
Counts 2 – 3: Two offences of possessing a false passport, contrary to s 9A of the Passports Act 1938 (Cth);
Counts 4 – 13: Ten offences of using a false foreign passport as an identity document, contrary to s 22(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth);
Counts 14 – 17: Four offences of opening an account with a cash dealer in a false name, contrary to s 24 of the Financial Transaction Reports Act 1998 (Cth). In sentencing for count 14, four further offences under the same provision and another of attempting such an offence were taken into account under s 16BA of the Crimes Act 1914 (Cth);
Count 18: Using a…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Arun Kumar v The Queen

Details

AGLC: Arun Kumar v The Queen [2010] NSWCCA 138
Case: [2010] NSWCCA 138
Decision Date: 19 August 2010

CaseChat Overview and Summary

The applicant, Arun Kumar, appealed against his sentence in the High Court of Australia. Kumar and his wife were involved in an identity fraud scheme that involved the creation of false identities, opening bank accounts under these identities, and obtaining credit and loans without any intention of repayment. Kumar’s appeal focused on two primary issues: whether the primary judge should have allowed a discount in his sentence for his assistance to the authorities, and whether the sentence imposed for the money laundering count was manifestly excessive. Kumar argued that he provided substantial assistance to the authorities, which warranted a discount in his sentence, and that the sentence for money laundering was disproportionate to the offence.

The High Court considered whether the primary judge had erred in not allowing a discount for Kumar’s assistance to the authorities. The Court noted that while Kumar had provided some assistance, it was not of such a nature or extent that a discount was warranted. The assistance provided was not deemed to be significant enough to justify a reduction in the sentence. Furthermore, the Court examined whether the sentence for the money laundering count was manifestly excessive. The Court concluded that the sentence was not manifestly excessive, as it was within the range of sentences typically imposed for such offences, considering the seriousness and impact of Kumar's criminal activities.

In summary, the High Court dismissed Kumar's appeal, upholding the original sentence. The Court found that the primary judge did not err in not granting a discount for assistance to the authorities, and the sentence for the money laundering count was not manifestly excessive. The original sentencing decision was affirmed, and Kumar's appeal was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

The applicant and his wife were involved in the identity fraud scheme. Both were sentenced by the same judge on the same occasion. His wife was sentenced to a lesser aggregate term, but the disposition of her case has no bearing upon the present application. Facts At this stage a brief overview of the scheme, and the applicant’s involvement in it, will suffice. It will be necessary later to examine more closely the facts giving rise to the first count. In 2008, Federal and State law enforcement authorities were investigating a Pakistani/Indian syndicate, based in Sydney, which was involved in the manufacture of false identities and the later use of those identities to open and operate bank accounts in false names for fraudulent purposes. In general terms, the syndicate’s methodology was as follows:Firstly, false foreign travel documents, such as passports or visas, false tenancy agreements, false payslips and pay advices and other false documents would be created.Secondly, members of the syndicate would attend various branches of the Roads and Traffic Authority and use false documentation to obtain driver licences in false identities. Thirdly, those false identities were used to open bank savings accounts, which were then “operated” so as to build up a credit rating. After a period of time applications would then be made for credit or loans.Finally, credit or loan funds having been approved, those facilities would be used to obtain money or goods. No repayments would be made, the accounts would be left to fall into default, and the defrauded financial institutions would recover nothing. A considerable number of individuals performed a variety of tasks in what was an extensive fraudulent scheme. The structure of the syndicate was hierarchical. Its head, identified as Mohammed Shoaib Hanif, was known as “the Chief”. Others performed the following roles:identity manufacturers;accounts, information and bookkeepers;supervisors, who were advisors and trainers of the runners;runners, who lodged the fraudulent applications. In 2002, and between 2006 and 2008, the applicant carried out a number of tasks for the syndicate. These included:attending RTA branches to obtain driver licences in false names;opening, operating and maintaining bank accounts with various financial institutions;maintaining and storing information and equipment obtained and used by the syndicate;attempting to obtain loan funds from a financial institution. The applicant was arrested on 28 March 2008 at Sydney International Airport, as he was about to travel to his native India with his wife and family. He was found to be in possession of $126,500, which he had not declared as cash which he was taking out of the country. It is this which gave rise to the first count. He remained in custody from his arrest until he was sentenced. At the sentence proceedings the applicant gave evidence, not all of which was accepted by the sentencing judge. However, her Honour did accept that he and his wife became involved in the criminal enterprise because they were in financial difficulty following a series of failed business ventures. He gave evidence of certain conduct by Hanif which, he said, led him to feel compelled to commit the offences. It is unnecessary to recite that evidence; it is sufficient to say that her Honour found it unworthy of belief.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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Citations

AGLC Citation

Arun Kumar v The Queen [2010] NSWCCA 138

Most Recent Citation

Tomov v The Queen [2011] WASCA 189

Cases citing this decision · 1 of 1 shown

Tomov v The Queen
[2011] WASCA 189

…Queen [2011] VSCA 24 Jardim v The State of Western Australia [2011] WASCA 83 Jimmy v The Queen [2010] NSWCCA 60; (2010) 240 FLR 27 Kumar v The Queen [2010] NSWCCA 138 Ljuboja v The Queen [2011] WASCA 143 Lovegrove v The Queen [1961] Tas SR 106 Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 Nikaghanri v The Stat…

View all 1 citing cases →

Cases cited in this decision · 10 of 10 shown

R v Viana
[2008] NSWCCA 188 Para 15

…R v Viana [2008] NSWCCA 188 was a Crown appeal against a sentence of 4 ½ years with a non-parole period of 2 years and 11 months. The respondent had dealt over a period with money totalling about $5,000,000. It was the proceeds of the supply of cocaine, but there was no evidence that he knew its precise source. He w…
Du Randt v R
[2008] NSWCCA 121 Para 13

…In Du Randt v R [2008] NSWCCA 121, the applicant had been dealt with for an offence under s 400.4(2) of the Code of dealing with money in excess of $100,000 which was the proceeds of crime, being reckless to the fact that it was the proceeds of crime. That offence carries a maximum sentence of 10 years imprisonment.…
R v Van Dang Tran
[2007] NSWDC 310 Para 18

…Mr Stratton also referred us to the sentence of Norrish DCJ in R v Van Dang Tran [2007] NSWDC 310, another case under s 400.3(2). In that case the amount involved totalled approximately $6,500,000. Norrish DCJ determined a starting point of imprisonment for 8 years which, after reductions for an early plea of guilt…
Mohamad Raghid ALCHIKH v Regina
[2007] NSWCCA 345 Para 15

…Her Honour also referred to Alchikh v R [2007] NSWCCA 345, another case in which complaint was made about the adequacy of a discount for assistance. Handley AJA, with whom Hulme and Hall JJ agreed, said at [25]: “The discount allowed for assistance to the authorities is for assistance that is accepted and used by th…
R v Huang; R v Siu
[2007] NSWCCA 259 Para 20

…The Crown prosecutor referred us to the Crown appeals in R v Huang and Siu [2007] NSWCCA 259, 174 A Crim R 370. Huang had been dealt with for dealing with money, to the value of $1,000,000 or more, intending that it become an instrument of crime, an offence under s 400.3(1) of the Code which carries a maximum senten…
R v Ansari
[2007] NSWCCA 204 Para 17

…The related case of R v Ansari [2007] NSWCCA 204, 70 NSWLR 89 was yet another Crown appeal. The two respondents had been found guilty at trial of two counts of conspiring to commit an offence under s 400.3(2). The first offence involved $2,000,000 and the second offence, it seems, would have involved a similar amoun…
Assafiri v R
[2007] NSWCCA 159 Para 5

…On the other hand, the Crown prosecutor referred us to Assafiri v R [2007] NSWCCA 159, in which the complaint was that the trial judge refused any discount for the applicant’s assistance: see the judgment of Howie J, with whom Basten JA and Grove J agreed, at [20] ff. Howie J noted that the proffered assistance in t…
R v Z
[2006] NSWCCA 342 Para 16

…R v Z [2006] NSWCCA 342, 167 A Crim R 436 was also a Crown appeal. The respondent had been sentenced to imprisonment for 5 years and 2 months, with a non-parole period 2 years and 7 months, for possessing a prohibited import, being a quantity of ecstasy tablets. For the money laundering offence he had been sentenced…
R v Sukkar
[2005] NSWCCA 55 Para 14

…In arriving at that conclusion, her Honour referred to R v Louis Sukkar [2005] NSWCCA 55, in which Bryson JA, with whom Barr and Hoeben JJ agreed, considered a ground of an application for leave to appeal against sentence that the applicant had received an inadequate discount for assistance at [43] ff. At [50] – [5…
No 1]; R v Ponfield
[1991] NSWCCA 435 Para 14

…n inadequate discount for assistance at [43] ff. At [50] – [51], Bryson JA referred to the examination of this issue by Gleeson CJ in R v Gallagher (1991) 23 NSWLR 220 at 226 – 230, and by Spigelman CJ in R v Chu (NSWCCA, unreported, 16 October 1998). His Honour continued at [52] – [53]: ”52 To my mind there is a dist…

Legislation cited in this decision · 6

Crimes (Sentencing Procedure) Act 1999 (NSW)
1 mention (from Para 1)
Crimes Act 1900 (ACT)
1 mention (from Para 3)
Crimes Act 1914 (Cth)
1 mention
Criminal Code Act 1995 (Cth)
1 mention (from Para 3)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)
1 mention (from Para 3)
Passports Act 1938 (Cth)
1 mention (from Para 3)