Director of Public Prosecutions v Al Kinani
[2024] ACTSC 385
•6 December 2024
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | DPP v Al Kinani |
Citation: | [2024] ACTSC 385 |
Hearing Dates: | 25 November 2024 |
Decision Date: | 6 December 2024 |
Before: | McWilliam J |
Decision: | Offender sentenced to a total effective term of imprisonment of 1 year, 11 months and 1 day and a non-parole period of 12 months. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtain property by deception – possess device etc for making false documents – money laundering – theft – where childhood disadvantage – where no application for drug and alcohol treatment order made |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 108 Crimes (Sentencing) Act 2005 (ACT) ss 7, 10, 33, 35 Crimes Act 1900 (ACT) s 114B Criminal Code 2002 (ACT) ss 44, 308, 326, 349(2) |
Cases Cited: | DPP (Cth) v Watson [2016] VSCA 73 DPP v Bonazza [2024] ACTSC 349 DPP v Carr (Unreported, ACT Supreme Court, Refshauge AJ, 14 November 2023) DPP v Monaghan [2024] ACTSC 183 DPP v Padreny [2024] ACTCA 4 DPP v Singh [2024] ACTSC 202 Hili v The Queen [2010] HCA 45; 242 CLR 520 Ly v The Queen [2014] FCAFC 175; 227 FCR 304 Markarian v The Queen [2005] HCA 25; 228 CLR 357 McLeod v The Queen [2018] ACTCA 59 Mitchell v The Queen [2006] NSWCCA 72 MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 Muldrock v The Queen [2011] HCA 39; 244 CLR 120 O’Brien v The Queen [2015] ACTCA 47 R v Beary [2004] VSCA 229 R v Cole [2019] ACTSC 228 R v De Leeuw [2015] NSWCCA 183 R v Donnelly [2021] ACTSC 336 R v Elphick [2021] ACTSC 9 R v Forrest (No 2) [2017] ACTSC 83 R v Jones [2004] VSCA 68 R v Lindsay [2020] ACTCA 25 R v Morris [2017] ACTSC 400 R v QU [2019] ACTSC 155 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Richard [2011] NSWSC 866 R v Samia [2009] VSCA 5 R v Slattery [2021] ACTSC 154 R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 Robertson v DPP [2024] ACTCA 26 Taylor v R [2014] ACTCA 9 The Queen v Ruwhiu [2023] ACTCA 18 |
Parties: | Director of Public Prosecutions Ali Al Kinani ( Offender) |
Representation: | Counsel B Chifuntwe ( DPP) D Ager ( Offender) |
| Solicitors Director of Public Prosecutions (ACT) CODA Criminal Law ( Offender) | |
File Numbers: | SCC 337 of 2024 |
McWILLIAM J:
1․The offender in this matter, Mr Ali Al Kinani, has pleaded guilty to the following five offences (primary offences):
(a)CAN 1053/2024: Obtain property by deception, contrary to s 326 of the Criminal Code 2002 (ACT) (Criminal Code);
(b)CAN 1072/2024: Attempt to obtain property by deception, contrary to s 326, by virtue of s 44, of the Criminal Code;
(c)CAN 1113/2024: Possess device for making false document, contrary to s 349(2) of the Criminal Code;
(d)CAN 1115/2024: Money laundering, contrary to s 114B of the Crimes Act 1900 (ACT) (Crimes Act); and
(e)CAN 1124/2024: Theft, contrary to s 308 of the Criminal Code.
2․Upon conviction, the offender will be in breach of a good behaviour order imposed on 2 November 2022 for a period of 12 months for a single offence of obtaining property by deception contrary to s 326 of the Criminal Code (CAN 17/2022). The good behaviour order did not have any suspended terms attached to it. Accordingly, the applicable provision applying is s 108 of the Crimes (Sentence Administration) Act 2005 (ACT). Given the offence to which the good behaviour order related occurred years ago now and the breach occurred within 3 weeks of the good behaviour order being completed, the parties’ joint submission was that the Court take no further action and I agree that is the appropriate course.
Facts giving rise to the primary offences
3․The facts of the offending are largely drawn from the agreed statement of facts that was before the Court.
Charge 5: Theft
4․On 12 October 2023, the offender arrived at the Canberra Labor Club (CLC) premises in Belconnen at about 9:27pm, in a Nissan Pathfinder. The defendant exited from the driver seat of the vehicle and entered the club.
5․At about 11:36pm, the offender removed a Tyro-branded Electronic Funds Transfer Point of Sale (EFTPOS) terminal from the bistro section of the club. The defendant covered the EFTPOS terminal in a white and green coloured striped cloth and exited the club. At about 11:39pm, the offender entered the vehicle in which he had arrived and drove away.
6․The offender’s conduct was captured by the club’s CCTV footage.
7․On 17 October 2023, the offender sold the vehicle to Lennock Motors for $6,000, which was received in his personal bank account. The offender provided his first name and personal mobile number to facilitate the sale. Police were able to cross-check his identity with the vehicle registration number and details of the transaction in his personal bank account, which was then used in his money laundering scheme, as detailed below.
Charges 1 and 2: Obtain property by deception and attempt to obtain property by deception
8․On 16 October 2023, at around 6:37pm, the offender gained access to the EFTPOS terminal by the means contained in the statement of facts.
9․Between 16 and 18 October 2023, the offender used the EFTPOS terminal to refund a total of $16,568, by 19 separate transactions of between $120 and $2,000 each, to three different bank cards.
10․He also unsuccessfully attempted to refund a total of $51,651.73, by 36 separate transactions of between $27 and $4,000 each, to five different bank cards.
11․Several of the bank cards used and receipts of refund transactions were found during a search warrant executed at the offender’s residence in Gungahlin. During the search, police seized, among other things, an Asus Personal Computer (PC) tower which at the time was displaying the CLC’s ABN on the attached monitor.
Charges 4: Money laundering
12․Between 17 to 19 October 2023, the defendant moved the amount of $16,568, deceptively obtained (being the subject of Charge 1), through multiple bank accounts in other peoples’ names, in an attempt to disguise its source before withdrawing it as cash or transferring it into a Westpac bank account held in the offender’s name.
13․Several bank accounts linked to the bank cards used in the refunds have been identified by police as being held in the names of other people but otherwise connected with the offender and this operation:
(a)Commonwealth Bank of Australia (CBA) account in the name of Nahed Jabar, which had a deposit received from the CLC in the amount of $900 and had made direct payments of $900 and $6,574 for ‘turbocharger’ and ‘car’ respectively to the offender’s Westpac account, which had corresponding receipts of those amounts;
(b)National Australia Bank (NAB) account in the name of Kawther Abdulazim Alzayer, with the linked email address ‘[email protected]’ and address of a residence in Downer, which are known identifiers of the offender and listed in police actions. This account had made a direct payment of $450 to the offender’s Westpac account;
(c)CBA account in the name of (the offender’s relative), which had two deposits received from the CLC in the amounts of $712 and $472.
14․On or around 18 October 2023, part of the $16,568 that was not otherwise deposited in the offender’s Westpac account was withdrawn by the offender from the linked accounts at various ATM machines:
(a)Six withdrawals from the CBA account in the name of the offender’s relative, in amounts of $100 and $200 each, totalling $1,000, from the Canberra Raiders Club in Gungahlin;
(b)One withdrawal from the CBA account in the name of (the offender’s relative) in the amount of $200, from a Westpac ATM in Gungahlin.
15․Records from the Raiders Club confirm that a membership card with an identified membership number was swiped upon signing into the club. That card was linked to a NSW driver licence in the name of Shahab Mal Mir, the profile photo depicted being an image of the offender. The offender made EFTPOS withdrawals totalling $1,250 from the club.
16․During the search of the offender’s residence, police seized the offender’s mobile phone and found:
(a)Email accounts for ‘[email protected]’ (linked to the offender’s Westpac bank account), and ‘[email protected]’ were logged in on the device;
(b)On the notes application:
(i)A list of emails with corresponding names, including ‘[email protected] – kawther’;
(ii)A note containing the email address ‘[email protected]’;
(iii)A note containing the following text (errors in original):
The difference between Terrorist funding and ML is that Money laundering is the process of concealing the illicit origin of proceeds of crimes more like processing criminal profits to disquise their illegal origin And terrorist financing is the collection or the provision of funds for terrorist p
(c)On the messaging application, messages to his partner, asking for her to “clean the money”.
17․As of the date of sentencing, police have not completed investigations, including the obtaining of bank statements for the other bank cards used in this scheme. Nevertheless, the offender has accepted the statement of facts and has otherwise not disputed the allegations.
Charge 3: Possessing device for making false document
18․During a search warrant executed at the defendant’s residence on 22 January 2024, the following items were seized:
(a)Canon Selphy card printer;
(b)Evolis Zenius Classic card printer; and
(c)The Asus PC tower that at the time was displaying the CLC’s ABN on the attached monitor.
Court’s sentencing task
19․The task for the court is well established. For the benefit primarily of explaining the process to the offender, it is to sentence the offender by reference to the objectives of the legislation and sentencing purposes set out in s 7 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act). These include ensuring that the offender is “adequately punished” for the offence in a way that is “just and appropriate”.
20․Of equal importance among the objectives (s 7(2) of the Sentencing Act) are the objectives of general and specific deterrence, protection of the community, promotion of the offender’s rehabilitation, making the offender accountable for his action, denouncing the conduct of the offender and recognising the harm done to the victims of the crime and the community.
21․The Court must achieve those objectives in accordance with the principle of individualised justice: MT v The Queen [2021] ACTCA 26; 17 ACTLR 22 at [56].
22․The court must consider a number of matters, set out in s 33 of the Sentencing Act. These have been considered below to the extent relevant in the circumstances of the offender. A term of imprisonment is a sentence of last resort: s 10 of the Sentencing Act.
Nature and circumstances (s 33(1)(a) of the Sentencing Act)
23․The requirement to consider the nature and circumstances of the offence proceeds upon a number of established principles, which have been set out in other authorities but are repeated here for the benefit of those involved in this particular proceeding.
Applicable principles
24․The consideration of the circumstances of the offending involves an objective assessment, the seriousness of the conduct is judged “wholly by reference to the nature of the offending”: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. Subjective considerations, or matters personal to the offender, are separate considerations: McLeod v The Queen [2018] ACTCA 59 at [12].
25․The sentence which the Court imposes must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25; 279 A Crim R 232 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].
26․The maximum penalty for an offence provides a yardstick against which to assess the objective seriousness of the offences before the Court: Markarian v The Queen [2005] HCA 25; 228 CLR 357 at [31]. The maximum penalties for each of the offences is a sentence of imprisonment for a term of 10 years. Such a maximum indicates that these offences are each clearly serious.
27․In respect of each of the offences, the fact that the offender was on conditional liberty when he reoffended is a circumstance of aggravation for each sentence to be imposed.
Charges 1 and 2: Obtaining/attempting to obtain property by deception
28․In relation to the offences of obtaining property by deception, in DPP v Singh [2024] ACTSC 202, I discussed (at [24]) features that may be relevant, drawn from Mitchell v The Queen [2006] NSWCCA 72 at [10], R v Slattery [2021] ACTSC 154 at [40], R v Donnelly [2021] ACTSC 336 at [66], and DPP v Carr (Unreported, ACT Supreme Court, Refshauge AJ, 14 November 2023). They include the following:
(a)The amount of money involved;
(b)The degree of premeditation and sophistication;
(c)The time period over which the offence was committed;
(d)The repeat nature of the offending as suggesting an intention to continue unless the police became aware of the breach; and
(e)The level of dishonesty or breach of trust.
29․In the present case, the amount obtained by the offender was $16,568. He attempted to obtain a further $51,651.73. There was clear premeditation. The means by which access to the EFTPOS machine was obtained and carried out in the offending involved sophistication.
30․The offences themselves occurred over a 4-day period. The search warrant was executed on 22 January 2024. I accept the offender’s submission that the offending was confined. Further, although there was clear dishonesty, the offender was not in a position of responsibility such as to be in a position of trust.
31․As the prosecution submitted, these offences also involved rolled up counts. As described in R v Jones [2004] VSCA 68 (Jones) at [13], a rolled-up count is a collection of counts bundled into a single count. It is different from a representative count. The approach to be taken in such circumstances was explained by Refshauge J in R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164], including the following:
(a)The rolled-up charge comprehends a number of offences, but for sentencing purposes, it constitutes the one offence: R v Beary [2004] VSCA 229; 11 VR 151 at 157; [14].
(b)That means only one sentence can be imposed, with a single maximum penalty applying for that offence. The sentence is not invariably the sum of the individual sentences that could have been imposed had the individual offences been separately charged, though it may be: R v Samia [2009] VSCA 5 at [12]. In that way, the process provides a considerable benefit to the offender: Jones at [13].
(c)The criminality encompassed in a rolled-up count is greater than that of an individual count: Director of Public Prosecutions (Cth) v Watson [2016] VSCA 73 at [82]; Ly v The Queen [2014] FCAFC 175; 227 FCR 304 at 331; [125]; R v Richard [2011] NSWSC 866 at [65].
(d)The rolled-up nature may also have a bearing on other aspects of the sentencing process, such as accumulation and concurrency: R v De Leeuw [2015] NSWCCA 183 at [116].
32․It can be seen that the conduct here was of significant objective seriousness, including a more serious degree of criminality because the charges were ultimately rolled-up. As between the two offences, In my view, the success in obtaining a relatively small amount of money and the lack of success in attempting to obtain a much larger sum, for the same underlying reasons (and with the same maximum penalty), should each be treated as having a similar degree of seriousness.
Charge 3: Possess device for making false document
33․In relation to the offence of possessing a device for making false documents, it is important to distinguish possession from use. The charges relating to use were not pressed. The features that I consider to be relevant here are:
(a)The length of time over which the device was possessed;
(b)The intention behind the possession (whether it was for financial gain); and
(c)Whether the printer played any role in either the offending here or other planned or organised criminal activity.
34․It is not clear how long the offender possessed the device for. I consider that there was an intended financial gain behind the possession, although I accept that I cannot find the offender derived any financial gain from the mere possession. I consider the printer did play a role in other criminal activity (being the money laundering), although because this is possession and not use, the objective seriousness here must be low.
Charge 4: Money laundering
35․In relation the offence of money laundering, features that may have significance (non-exhaustively) for the objective seriousness of this offence have been helpfully set out in R v Cole [2019] ACTSC 228, where Murrell CJ stated at [16]-[19]:
16. In assessing the objective seriousness of the offence, it is relevant to consider the purpose and nature of the dealing. Dealing can involve a number of activities. In this case, the dealing was the possession of monies on one day.
17. Another relevant factor is the nature of the proceeds of crime, as defined under s 114A of the Crimes Act. Proceeds of crime is defined to include property derived or realised, directly or indirectly, from the commission of an offence. In this case, the inescapable inference is that the cash was derived directly from the commission of a serious offence, being the offence of selling drugs, probably cocaine.
18. The value of the proceeds of crime is an important consideration when determining the objective seriousness of the offence. Unlike provisions in some other jurisdictions, the ACT offence provision does not reference penalties to the value of proceeds of crime. The amount of proceeds that can be the subject of the offence is open-ended. However, on any view, the value of $101,900 was high.
19. Although the offence was constituted by the offender possessing proceeds of crime on only one day, his possession of the proceeds of crime must be considered in context. The position was not transitory. The circumstances of the possession were more permanent.
36․See also DPP v Bonazza [2024] ACTSC 349 at [25].
37․Here, the transactions occurred between 17 and 19 October 2023. The purpose of the conduct was to obfuscate the true origin of money derived from the commission of a separate serious offence, being the offence of obtaining property by deception. While the value here ($16,568) was lower than the amount considered in Cole, the offender’s operation was more sophisticated in that an extensive number of false bank accounts and identities were used to blur the origins of the proceeds of crime. As the note on the offender’s mobile device indicates, the offender was fully aware of the type of crime he was committing.
38․The offence is neither at the high nor low end of conduct falling within this offence. What can be said is that although the offence did not involve sums of high value, it is nevertheless a relatively substantial example of a serious offence.
Count 5: Theft
39․In relation to the offence of theft, the prosecution helpfully drew attention to DPP v Monaghan [2024] ACTSC 183, where Taylor J at [18] (citing R v Elphick [2021] ACTSC 9 at [115] and R v Slattery [2021] ACTSC 154 at [38]) set out the following features that may be relevant in assessing the objective seriousness for the offence of theft:
(a)The motive for the theft;
(b)The extent and value of the property taken; and
(c)Whether the stolen item was of sentimental value or utilitarian value, such that it would be difficult or inconvenient to replace.
40․The motive was to repay a drug debt. The value of the EFTPOS terminal is unknown and presumably not of sentimental value. It would be easily replaceable but there is a degree of inconvenience associated with the replacement and setting it up. Overall, those matters indicate the conduct here is in the low range of objective seriousness.
Plea of guilty (s 35(3) of the Sentencing Act)
41․The offender entered pleas of guilty in the ACT Magistrates Court on 19 September 2024, this was on the ninth mention and after a plea of not guilty and provision of the brief of evidence.
42․The principles guiding the exercise of the Court’s discretion to apply a discount in respect of a guilty plea have been set out in a number of authorities. Among those are Robertson v DPP [2024] ACTCA 26 at [23]-[26] and DPP v Padreny [2024] ACTCA 4 at [69]-[81]. I will apply those principles without repeating them. Of significance here, s 35(2)(c) of the Sentencing Act expressly requires the Court to take into account whether the guilty plea was related to negotiations between the prosecution and defence about the charge to which the offender pleaded guilty. “An offender can benefit either from a substantial discount for the utilitarian value of an early plea, or from a lower sentence flowing from a lesser charge or fewer charges following negotiations, but should not usually benefit in both ways”: R vToumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [56].
43․No submission was made here that the evidence in respect of any offence was overwhelming (even the possession charge). The mandatory considerations under s 35(2) of the Sentencing Act concerning the seriousness of the offences and victim impact do not have a significant influence upon the exercise of the discretion. However, the offender was initially charged with 139 offences, which was reduced to the present 5 charges, some of which are rolled up charges. The offender’s pleas do have utilitarian value, but their negotiation and the fact that a prosecution brief had been prepared persuade me he is not entitled to the commonly applied maximum discount, and instead, I consider a discount of approximately 22 per cent is appropriate in respect of each offence, with 25 per cent for the theft, due to it not being a rolled up charge and the short length of the sentence to be imposed.
Victim impact (s 33(1)(f) of the Sentencing Act)
44․There were no victim impact statements before the Court. That does not mean that the offences were victimless crimes. Plainly the CLC was a corporate victim, along with the broader community.
Remorse (s 33(1)(w) of the Sentencing Act)
45․The offender has expressed remorse to an independent psychologist. However, as submitted by the prosecution, very considerable caution should be exercised in relying upon those statements where there is no evidence given by the offender: R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 at [58].
46․The offender reportedly displayed some insight into the impact of his behaviour to the author of an intensive correction order assessment report dated 18 November 2024 (ICO Report), stating that he accepts full responsibility for his actions. His reason for offending was that it related to the drug debt for which his family was being threatened. He has reflected positively on his future, stating he is now aware of the support available to him in the community which will assist him living a ‘normal life’.
47․I accept the offender has a degree of repentance, but I have not given it significant weight in light of established authority cautioning against evidence in forms such as that presented here.
Subjective circumstances of the offending (s 33(1)(m) of the Sentencing Act)
48․Much of the information here is derived from the ICO Report. The offender was 34 at the time of offending and is now 35. He has been known to ACT Corrective services since 2016 for previous offences and has had previous issues with drug addiction.
49․The offender was born in Iraq and raised there until the age of 16 when he moved with his family to Sydney. The contents of a report from an independent psychologist are noted. It is unnecessary to discuss the contents of the report in detail. The material confirms that his formative years were traumatic and I accept on the psychological evidence that Bugmy factors operate here, in the sense discussed by Baker J in The Queen v Ruwhiu [2023] ACTCA 18 at [126]. The prosecution did not submit to the contrary. I consider moral culpability is somewhat reduced as a result.
50․The offender has completed his secondary education and has been successful in employment in a number of different areas. He is not without prospects, but I consider he was somewhat without direction prior to be remanded, and this may have contributed to drug use and the offending as a consequence.
51․The offender has been given over the counter pain relief medications for a leg injury following an assault in early 2024. He was diagnosed with Post Traumatic Stress Disorder (PTSD) during his remand period and has been prescribed medication to treat his symptoms of PTSD.
The offender’s drug addiction
52․The offender reported he has never consumed alcohol. However, he started using cannabis in his late 20s and would smoke this drug on most days up until being remanded. He also began using methylamphetamine in 2016 when introduced to it by friends and he quickly became addicted to the drug. He reported that the cost of his addiction was approximately $200 per day.
53․The offender has engaged in the Solaris Therapeutic Community (TC) program during his current remand period. He commenced the program in August 2024, however, he was removed from the program on 11 October 2024 following behavioural issues. He otherwise briefly engaged in alcohol and drug counselling earlier this year.
54․He has been accepted into the Karralika Matrix Day program, and the service has been able to confirm that he was assessed as suitable. The earliest date he could be released into the program is 28 January 2025.
55․Alternatively, if sentenced to a further period of full-time imprisonment, it has been suggested that the offender would have the benefit of the completion of the EQUIPS addiction program or re-entry into the Solaris Therapeutic Community program.
56․The offender has supportive relationships with his parents and three siblings. His family members provided references for him. Between 2018 and 2019, he was the full-time carer for his mother. He has no dependents and has been married to his partner for nine years. The references from the offender’s family members put a human face on the wider impact that the offender’s drug use (discussed below) has on his immediate family. They want to support him through his illness.
57․The offender has developed an ambitious, but possibly naïve, confidence in having beaten his drug addiction while incarcerated. I say naïve because keeping off drugs in a custodial setting with its highly structured environment is a world apart from abstaining from drugs when the pressures of life, family and work have returned, along with anti-social friends who the offender considers played a role in his latest drug use. The wrap around support of the Drug and Alcohol Sentencing program, that may have been a sentencing option had the offender been open to exploring such an order, is aimed at reducing the ever-present risk of relapse through long-term intervention strategies, which the offender does not appear to have ever received. In the absence of release into a residential drug rehabilitation program, the prospects of rehabilitation are, in my view, guarded.
58․That view is shared by the ICO Report author, who considered the offender to be unsuitable for an ICO, due to his unaddressed drug dependency issues. The offender has been assessed as medium to high risk of general offending with his criminogenic needs related to substance abuse issues, mental health, employment, finances and lack of prosocial companions and activities.
Criminal history (s 33(1)(m) of the Sentencing Act)
59․The offender’s criminal history dates back to 2016, mostly for driving offences (including drug driving), although one offence is for ‘obtaining property by deception’, an offence of the same kind as the conduct under consideration for sentence.
60․The offender has a history of non-compliance with good behaviour orders, including the one that has been dealt with above at [2] of these reasons. The poor history of compliance in that regard influences the ultimate disposition of the matter.
Time in Custody
61․The offender has spent 7 months in custody, of which 153 days (5 months) as at the date of hearing, now 164 days, may properly be taken into account, by way of backdating, in relation to the present charges.
Current sentencing practice (s 33(1)(za) of the Sentencing Act)
62․I have taken into account a number of cases by way of comparison to ensure consistency in sentencing practice, accepting that the objective in doing so is not to bind the sentencing court to achieve numerical equivalence with similar sentences imposed in the same jurisdiction: see Hili v The Queen [2010] HCA 45; 242 CLR 520 at [48].
63․Here, the parties drew attention to several cases by way of assistance. Among them, R v Morris [2017] ACTSC 400 and R v QU [2019] ACTSC 155 (QU) are informative as to the types of sentences imposed for offences of obtaining property by deception. Although QU involved significantly greater offending, a sentence of 3 years’ imprisonment was imposed, to be served by way of an intensive corrections order.
Disposition
64․General deterrence and denunciation should be given great weight here. Given the offender’s previous criminal history, specific deterrence should also feature heavily in the sentence to be imposed. As a result, I agree with the parties’ assessment that this is a case where no sentence other than a term of imprisonment for each offence is appropriate in order to properly recognise these objectives.
65․The options for serving that sentence other than full time custody are also limited. Although I am not bound by the ICO assessment, in this case I agree with it. The offender (properly) did not seek a suspended sentence in light of his history of non-compliance. The offender does not want to engage with any possibility of a drug and alcohol treatment order because he thinks he has overcome his addiction and a residential program would take him away from his partner. He is prepared to engage in a day program at Karralika next year. That will be a matter to progress with the Sentence Administration Board.
66․In terms of the structure of the sentence, the principles to be applied when sentencing an offender for multiple offences are summarised in O’Brien v The Queen [2015] ACTCA 47 at [26]. The sentences will have a high degree of concurrency to reflect the fact that there was essentially a single course of conduct over the same time period, and with the same victim, insofar as the theft and obtaining property by deception offences are concerned. A concurrent sentence for the theft is appropriate as the obtaining property by deception offences can comprehend the criminality of that offence. However, there must also be a degree of accumulation to reflect the separate nature of the offences, with a view to ensuring that there does not emerge a perception that there is no difference between a person who commits one or two offences and a person who commits six or seven offences. In that regard, it must be remembered that a number of the offences are already rolled up offences.
67․The other matter that I have taken into account in structuring the sentence is that although only 5 months of the period the offender has been in custody is referable to the current offending, he has in fact now been in custody for 7 months. The longer a person is in custody, the heavier a sentence weighs on that person and, in this case, that consideration sounds in less prominence being required for specific deterrence in the sentencing exercise.
68․Totality considerations include the fixing of the non-parole period. The proper approach was set out in Taylor v The Queen [2014] ACTCA 9 at [19]:
1.A non-parole period must be fixed having regard to all the sentencing purposes of s 7, the objective seriousness of the offence and the offender's subjective circumstances. It is the minimum period of imprisonment that justice requires to be served: Power v The Queen [1974] HCA 26; (1974) 131 CLR 623 at 627 – 628, Deakin v The Queen [1984] HCA 31; (1984) 11 A Crim R 88 at 89, Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 (Lowe) at 615, Bugmy v The Queen [1990] HCA 18; (1990) 169 CLR 525 (Bugmy) at 536.
2.An offender’s prospects of rehabilitation are important to the fixing of the non-parole period. Generally, the perceived prospects of rehabilitation will make a significant difference to the non-parole period. Among other things, they will indicate what is required by way of protection of the community: Bugmy at 531 – 532.
3.The proportion of the sentence that is to be served by way of non-parole period is a matter for judicial discretion and cannot be reduced to a mathematical formula: Inge v The Queen [1999] HCA 55; (1999) 199 CLR 295 (Inge) per Kirby J at 316. In fixing the relationship between the term of imprisonment and the non-parole period, a sentencing judge has a wide discretion: Lowe at 610, 620 and 625.
4.Ordinarily, the non-parole period will constitute a substantial part of the total sentence: Inge per Kirby J at 316. In this Court, in circumstances where the offender committed a serious offence and had limited prospects of rehabilitation, the Court declined to disturb a non-parole period that was 70% of the total sentence: Drayton vThe Queen [2013] ACTCA 44. However, Drayton and other cases decided in the ACT should not be used to fix an “available range” for non-parole periods. The concepts of “manifest excess” and “manifest inadequacy” do not mean that a sentence has fallen outside an “available range”. Very recently, in Barbaro v The Queen [2014] HCA 2 at [27], French CJ, Hayne, Kieffel and Bell JJ observed:
... the essentially negative proposition that a sentence is so wrong that there must have been some misapplication of principle in fixing it cannot safely be transformed into any positive statement of the upper and lower limits within which a sentence could properly have been imposed.
…
69․It will be readily apparent to the offender that any application for parole must be with an eye to the course that will best address his drug addiction and set him up to succeed in the longer term. He may very much feel that he wants to attempt such a big task outside the formal court programs by engaging with Karralika. The lengthy period of supervision which I intend to impose is designed to give him the maximum opportunity to do that.
Orders
70․The orders of the Court are:
(1)For the offence of Obtain property by deception, contrary to s 326 of the Criminal Code 2002 (ACT) (Criminal Code) (CAN 1053/2024) the offender is convicted and sentenced to a term of imprisonment of 1 year and 6 months, reduced from 1 year, 11 months and 3 days on account of his guilty plea, commencing on 25 June 2024 and ending on 24 December 2025.
(2)For the offence of Attempt to obtain property by deception, contrary to s 326, by virtue of s 44, of the Criminal Code (CAN 1072/2024) the offender is convicted and sentenced to a term of imprisonment of 1 years and 6 months, reduced from 1 year, 11 months and 3 days on account of his guilty plea, to commence on 26 July 2024 and conclude on 25 January 2026.
(3)For the offence of Possess device for making false document, contrary to s 349(2) of the Criminal Code (CAN 1113/2024) the offender is convicted and sentenced to a term of imprisonment of 7 months, reduced from 9 months on account of his guilty plea, to commence on 26 July 2025 and conclude on 25 February 2026.
(4)For the offence of Money laundering, contrary to s 114B of the Crimes Act 1900 (ACT) (CAN 1115/2024) the offender is convicted and sentenced to a term of imprisonment of 20 months, reduced from 2 years, 1 months and 20 days on account of his guilty plea, to commence on 26 September 2024 and conclude on 25 May 2026.
(5)For the offence of Theft, contrary to s 308 of the Criminal Code (CAN 1124/2024) the offender is convicted and sentenced to a term of imprisonment of 3 months, reduced from 4 months on account of his guilty plea, to commence on 25 June 2024 and conclude on 24 September 2024.
(6)In respect of the breach of good behaviour order imposed for the offence of obtaining property by deception (CC2022/17), the Court notes the breach and pursuant to s 108(2)(a) of the Crimes (Sentence Administration Act) 2005 (ACT) takes no further action.
(7)The total effective sentence of imprisonment is for 1 year, 11 months and 1 day from 25 June 2024 and concluding on 25 May 2026.
(8)A non-parole period of 12 months is set to commence on 25 June 2024 and conclude on 24 June 2025.
| I certify that the preceding seventy [70] numbered paragraphs are a true copy of the Reasons for Sentence of her Honour Justice McWilliam. Associate: Date: |
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