Director of Public Prosecutions v Grant
[2024] VCC 893
•17 June 2024
| IN THE COUNTY COURT OF VICTORIA AT MELBOURNE CRIMINAL DIVISION | Revised Not Restricted Suitable for Publication |
Case No. CR-23-01163
| DIRECTOR OF PUBLIC PROSECUTIONS |
| v |
| ASHER JAMES GRANT |
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JUDGE: | HER HONOUR JUDGE ELLIS | |
WHERE HELD: | Melbourne | |
DATE OF HEARING: | 14 June 2024 | |
DATE OF SENTENCE: | 17 June 2024 | |
CASE MAY BE CITED AS: | DPP v Grant | |
MEDIUM NEUTRAL CITATION: | [2024] VCC 893 | |
REASONS FOR SENTENCE
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Subject:CRIMINAL LAW
Catchwords: Dealing with money reasonably suspected of being proceeds of crime,
possess a false document, give false or misleading information, identity theft.
Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth); Criminal Code (Cth); Crimes Act 1914 (Cth); Mental Health Act 2014 (Vic); Sentencing Act 1991 (Vic)
Cases Cited:Rasel v the Queen [2022] NSWCCA 239; The Queen v Raad (2006) 15 VR 338; Samarakoon v The Queen [2018] VSCA 119; Kim v The Queen [2016] VSCA 238; Majeed v The Queen [2021] VSCA 124; The Queen v Pham [2015] HCA 39; (2015) 256 CLR 550; R v Verdins [2007] VSCA 102; Bugmy v The Queen (2013) 302 ALR 192; R v Ansari [2007] NSWCCA 204
Sentence: 2 years Imprisonment, to be released after 10 months on a Recognisance Release Order
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APPEARANCES: | Counsel | Solicitors |
| For the DPP | Mr B. Kerlin | Office of Public Prosecutions |
| For the Accused | Ms E. Strugnell | Dribbin and Brown Criminal Law |
HER HONOUR:
1Asher James Grant, you have pleaded guilty to a number of charges contrary to the Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth) ('the Act'), namely:
· One charge of providing false or misleading information contrary to s 136(1) of the Act (Charge 1);
· One charge of produce false or misleading documents contrary to s 137(1) of the Act (Charge 3);
· One charge of make false document contrary s 138(1) of the Act (Charge 4);
· One charge of possessing a false document contrary to s 138(3) of the Act. (Charge 4).
2Each of these offences carries a maximum penalty of 10 years' imprisonment.
3You have also pleaded guilty to:
· One charge of dealing with money reasonably suspected of being proceeds of crime worth less than $100,000 contrary to s 400.9(1A) of the Criminal Code (Cth) which carries a maximum penalty of two years' imprisonment (Charge 2);
· One charge of failing to comply with an Order contrary to s 3LA(5) of the Crimes Act 1914 (Cth) which carries a maximum penalty of five years' imprisonment.
Circumstances of offending
4The circumstances of your offending were set out in a Summary of Prosecution Opening dated 9 January 2024. By way of overview, you provided false or misleading information and documents to various reporting entities, namely identity details to the bank 'Up Bank' on 7 March 2021 and also in October 2021 through which you dealt with a total of $51,521.91 cash reasonably suspected of being proceeds of crime, over an approximate 14-month period. You also provided false or misleading documents, namely false drivers' licences, to a number of cryptocurrency platforms and exchanges between 5 December 2021 and 30 January 2022.
5At the execution of a search warrant on 10 November 2022, numerous other false drivers' licenses were located which you created, and/or possessed. These were licences in various different names but depicting your image and likeness. Finally, you failed to comply with an order pursuant to s3LA(5) of the Crimes Act (Cth) to provide access to your three electronic devices at the search warrant.
6On 5 December 2021, a report was made to Report Cyber by a person named Jeremy Webb regarding identity theft and the opening of bank accounts with his identification, without his knowledge or consent. Mr Webb is one of the identities whose name appeared on false identity documents used in the commission of Charge 3, and in your possession when the search warrant was executed.
Charge 1 – Providing false or misleading information on 7 March 2021 and 1 October 2021.
7On 7 March 2021 and 1 October 2021, you opened two different bank accounts with 'Up Bank' using false details and providing false information. Specifically, on 7 March you opened an account in the name of Giannino Talarico (Account 1). You submitted the details of a Victorian Driver's Licence in the name of Giannino Talarico and provided contact details by way of an email address and mobile phone number. The mobile number was subscribed in the name of Giannino Talarico and billed to his address which was directly opposite your home address in Rankin Street, Boronia.
8On 1 October 2021 you opened a new joint account with 'Up Bank' in the names of Giannino Talarico and Michael John Richardson (Account 2), using the same contact details as for Account 1 and submitting the details of a Victorian Driver's Licence in the name of Richardson. A copy of this false licence bearing an image and likeness of you was located at your residence upon the search warrant.
9In both instances the information provided when opening the bank accounts was false, presenting as these two identities. Subsequent enquiries have confirmed that Giannino Talarico was a male residing in Victoria who died on 12 November 2021. You later admitted to investigators that Mr Talarico was a man who had passed away and that you took several documents from a bag across the road. You also admitted using the mobile phone number provided for data. You admitted you had access to the address of Mr Talarico.
10At the search warrant of your home address in Rankin Road, Boronia, a number of letters addressed to number 54, not your address, including letters associated with the delivery of various bankcards, were located. Further, an 'Up Bank' banking card linked to Account 1 was located in your bedroom as well as a driver's licence, Australia Post travel card and Visa debit card in the name of Giannino Talarico. You had conducted a search via your Apple Mac for 'easiest bank to verify ID', as well as searches of images of financial documents used as the validation of assumed or false identities.
11Further, on a hard drive located during the search warrant, the image of the false driver's licence in the name of Michael John Richardson that was submitted to 'Up Bank' in relation to Account 2 was located, along with an image of a Victorian driver's licence in that name which appeared to be genuine, and a Bunnings Power Pass card in the same name.
12You frequently used both of these two bank accounts to deal with money reasonably suspected of being proceeds of crime over an extended period in 2021 and 2022.
Charge 2 – Dealing with money reasonably suspected of being proceeds of crime between 9 March 2021 and 17 May 2022
13Between 9 March 2021 and 17 May 2022, $51,521.91 was deposited over the period of time into the two 'Up Bank' accounts controlled by you and opened in the false names which are the subject of Charge 1. In the same period, over $51,000 was withdrawn from these accounts, transferred to another bank account or disbursed by paying for goods or services. These are set out in more detail in the Summary of Prosecution Opening, but it is sufficient to say that you dealt with a total of $51,521 in the approximate 14-month period, being the total amount received into the two accounts that you controlled. A detailed table of all of the transactions to and from the bank accounts were set out in Annexure A to the Summary of Prosecution Opening.
Charge 3 – Produce false or misleading documents between 5 December 2021 and 30 January 2022
14Between 5 December 2021 and 30 January 2022, you produced false licences to three different cryptocurrency platforms, Revolut, Coinspot and Coinjar on four different occasions.
15Specifically, on 5 December 2021, you produced a Victorian driver's licence in the name of Michael J Richardson that bore the image of you, to cryptocurrency exchange 'Revolut' in order to open an account. An image of this false driver's licence was located on a hard drive at your residence as well as the image of the genuine driver's licence in the name of Richardson.
16On 2 January 2022 you produced a New South Wales probationary licence in the name of Jeremy Webb that bore your image to cryptocurrency exchange 'Coinspot' in order to open an account.
17The following day you produced a New South Wales probationary licence in the name of Jeremy Webb that bore your image to the cryptocurrency exchange 'Revolut' in order to open an account.
18On 30 January 2022 you produced a New South Wales probationary licence in the name of Jeremy Webb that bore your image to cryptocurrency exchange 'Coinjar' in order to open an account. A Coinjar card was located during the Search Warrant in the name of Jeremy Webb.
19VicRoads and Transport for New South Wales have confirmed that the documents used in the opening of these accounts were not genuine licences that matched their records.
20You made admissions in relation to assisting in opening cryptocurrency accounts during the verification process and using your face in false ID's. You told police that while you were involved in the process, you were pressured and you were told to use your face to verify accounts, while others would open the accounts. You said that you were paid $100 to open each account. You admitted to knowing Jeremy Webb, stating that you were glad that you did not know him anymore and that he was 'a scary one'. The implication was that this was someone you were afraid of, however, this does not sit with Mr Webb being a victim to this offending. It is difficult to know what to make of this comment.
21At the search warrant other documents and items were located, linking you to Jeremy Webb. You had also conducted searches for Jeremy Webb using your Apple iMac and there was a file for an unregistered vehicle permit in the same name for a Victorian Hilux.
Charge 4 – Making false document between 11 -18 May 2022
22At the time of the search warrant you were in possession of multiple physical and digital copies of a New South Wales driver's licence in the name of Joel Aaron Catmur depicting your image and likeness. These were located in your bedroom as well as numerous duplicate files on your Apple iMac. Images of the licence in various states of creation and completion, indicative of you editing and making amendments to different versions, were located on your laptop and were created between 11 and 18 May 2022. Instruction manuals and guidance to create false identity documents were also located on the device.
23You admitted to police that these were fake identifications with your face and bankcards addressed to 54 Rankin Road in the name of Joel Catmur.
Charge 5 – Possessing a false document
24You were also in possession of three other false documents bearing your image, namely, a West Australian driver's licence in the name of Ethan Gavin Green, a Queensland driver's licence in the name of Blake Lawson Talbot, and a New South Wales driver's licence in the name of Kyle James Bullock.
25In the first two instances the image on the driver's licence depicted yourself. Queensland Department of Transport and Main Roads and Transport for New South Wales confirmed that the relevant licences do not match their records.
Charge 6 – Failure to comply with an order
26On 7 November 2022, Magistrate Moody of the New South Wales Local Court signed an order pursuant to s 3LA of the Crimes Act1914 (Cth) naming you and providing conditions which required you to provide information or assistance reasonable and necessary to allow a Constable to access devices and gain evidentiary material from a computer or data storage device. You were served with the order on 10 November 2022 during the execution of the Search Warrant. You were directed to provide the correct access codes to three devices, a Google pixel mobile phone, an Acer brand laptop and a Samsung tablet. You provided a PIN to some of the devices that did not work.
27During the execution of the search warrant on the same date, various items were located in support of each of the charges for which you now fall to be sentenced. These included chats on an application called 'Telegram' with the account name Jim Hooper. Chats indicated that you conversed with another user by the name 'Generic White Male' discussing identity-based crime, including the other user requesting false ID documents and documents in other names. The Summary of Prosecution Opening has extracted a portion of these chats and discussions about suspicious activity to do with opening accounts and financial related matters.
28Included in this, you noted 'I have been having a hard time getting it from bank to crypto for some reason it’s cooked, trying not to use my personals'. You and the other user mocked victims of ID fraud throughout that exchange.
29When interviewed by police, in addition to making the admissions that I have already referred to, you said that you assisted in opening cryptocurrency accounts during the verification process and using your face. You indicated that you had not done the whole process yourself but generally the verification part. You suggested that while you were involved in the process you were pressured and told to use your face to verify accounts and others would open the accounts. You said 'basically I’ve been sent documents and … advised to give an address and then the cards have been sent out, I’ve been told to verify it with the ID …'.
30You told police that you had not put your face on the driver's licence, but someone else had done it with a photograph of yourself, though you agreed you had used the documents to verify the accounts. You told investigators that you were paid $100 to open accounts.
Procedural History
31You were ultimately charged on summons on 10 November 2022 and bailed. There is no pre-sentence detention. This matter proceeded through the Magistrates' Court and was ultimately first listed as a plea hearing on 25 January 2024. The matter was adjourned to enable psychological reports to be obtained.
Prior Criminal History
32You have admitted a prior criminal history in the Magistrates' Court for possession of methamphetamine, committing indictable offence whilst on bail, and possession of graffiti implement with intent to mark. You received either fines or adjourned undertakings.
Victim Impact Statement
33
One of the victims of your offending, Jeremy Webb, has prepared a victim impact statement which was read aloud in Court. He describes that the situation caused by your offending has caused him a great deal of stress. He has spent many hours of his time dealing with banks, credit agencies and government bodies trying to stop people using his identity. He is very concerned whenever he receives mail assuming that it is the worst and must be related to the misuse of his identity.
Mr Webb had to put credit locks in place with all major credit reporting bodies to prevent further provisions of credit being taken out in his name. He said that this has made his life increasingly difficult as he cannot even change phone plans or slightly increase credit limits on his card without removing the credit blocks with these reporting bodies.
34As a result of the time spent dealing with banks and various agencies, Mr Webb's employer raised questions as to what he had been doing with his time. He has spent an excessive amount of time attending to these matters instead of doing the work that he was supposed to have done. His lack of productivity has deprived him of a substantial pay rise. Mr Webb says that he is now riddled with paranoia and anxiety about the use of his identity, the process of doing simple things involving applying for credit now takes an unnecessary amount of time and effort.
35I take into account the impact your offending has had on Mr. Webb.[1]
[1] Crimes Act1914 (Cth) s 16A(2)(ea).
Sentencing Considerations
36As the charges before me are Commonwealth offences, you fall to be sentenced in accordance with Part 1B of the Crimes Act 1914 (Cth) ('the Act'). Accordingly, I am required to have regard to a number of matters which are set out in s 16A(2) of that Act to the extent that they are relevant and known to the court, and I do so, as I will elaborate. One of those factors is your personal circumstances.[2]
[2] Crimes Act 1914 (Cth) s 16A(2)(m).
Personal circumstances
37
You are now aged 31 years. You were born in Bendigo and you are the eldest of three siblings. Your father was a printer by trade and your mother was
self-employed with craft patchwork business. One of your sisters who is closer in age to you, works as a professional, and you have a younger sister 20 years your junior. Neither your parents nor your siblings have had any police involvement.
38Growing up your childhood in the Ferntree Gully area was a difficult one. Your parents raised you in a strict and religious environment. There was a level of family violence in the home perpetrated by your mother towards your father and both you and your sisters were psychologically and emotionally abused by her. You recall your father working significant hours and your mother struggling with mental illness for much of your life. Indeed, you mother has been diagnosed with a number of mental health issues and has required psychiatric admission. Your father explains a little more about this in his character reference.
39There was daily conflict at home and ultimately when you were in Year 11 you left the family home and couch surfed for a few months before returning to reside with your parents. Your mother and father are still married due to their religious beliefs but they reside separately.
40According to a psychological report prepared by Gina Cidoni,[3] you have been exposed to adverse childhood experiences which she considers likely contributed to the offending leading to emotional instability and maladaptive coping mechanisms, insecurity, low self-esteem and an unstable sense of self. She opines that you sought validation through criminal activities and from criminal associates. I take your childhood history into account when considering the way in which this relates to your offending. Your counsel does not submit that your difficult childhood is such that the principles in Bugmy v The Queen[4] have application, but it is nonetheless relevant.
[3] Exhibit 2.
[4] (2013) 302 ALR 192.
41You attended a number of primary and secondary schools growing up. You left school after Year 11 to commence an Electrical Apprenticeship which you did not complete. You have had a reasonable employment history; you began working with McDonald's at the age of 15 and since then you have worked in various activities and industries. Prior to the onset of the COVID-19 pandemic you were enrolled in a Certificate II in Arborer Culture with Melbourne Polytechnic which was delayed prior to that business closing. Between 2018 and 2019 you were enrolled in a Diploma of Composition and Production at the Australian Institute of Music. You have been working as an arborist since 2019 and YOU currently work as a sub-contractor. A reference from your employer indicates that you have become a valuable part of his team. You are trusted to deal with customers and run various aspects of the business. He considers you to be very trustworthy, and although he is aware of the charges, he describes you as somebody who is honest and reliable. Additionally, you have been working with a printing group on a casual basis.
42You began a relationship with your partner at the age of 18 and moved in together within a year. Together you have one child who is now aged five. Your daughter was diagnosed with autism at a young age and is in receipt of an NDIS support package. She receives fortnightly treatment for speech and behavioural problems. Your partner is a self-employed painter and decorator. She has no prior criminal history. She remains supportive of you notwithstanding that there has been a period of intramarital conflict which coincided with the COVID-19 pandemic and your drug charge. For a period of time this led to you leaving the house and residing either in your vehicle or at the home of Mr Talarico across the road.
43Indeed, it seems much of your offending occurred proximate to the period in which you were excluded from the family home pursuant to an Intervention Order. You have reported episodes of psychosis and suicidal ideation. On two occasions you were taken to Maroondah Hospital pursuant to s 351 of the Mental Health Act 2014 (Vic). Again, this occurred proximate to the offending.
44You have a history of substance abuse commencing with cannabis from the age of 15, alcohol from the age of 18, and you have used methylamphetamine daily from about the age of 18 or 19, consuming up to half a gram per day prior to 2023. You have now instructed that you have ceased all cannabis and methylamphetamine use since being charged with these offences. You have also had a problem with gambling since 2020, but you have not engaged in any gambling related counselling.
45You have obtained a Mental Health Care plan with a referral to a psychologist in 2023 but you have not participated in any sessions to date.
46Ms Cidoni endorses the following diagnoses; Substance Use Disorder, Gambling Disorder, Generalised Anxiety Disorder and Ms Cidoni notes traits of Bipolar Disorder and compulsive personality. She is of the opinion that your substance use likely played a significant role in the offending by impairing your judgement, decision making and impulse control. She considers that your risk profile is medium to high without treatment. Ms Cidoni opines that your prospects of rehabilitation are contingent on you accepting appropriate therapeutic and rehabilitative options to address psychological vulnerabilities and maladaptive coping mechanisms, substance abuse treatment and family therapy.
47Ms Cidoni notes that imprisonment is likely to adversely affect your ability to cope, particularly given your diagnosis and history. Your susceptibility to anxiety, depression and compulsive behaviours may intensify in the prison environment. There is a risk of relapse into substance abuse and gambling, and your mental wellbeing may be compromised by the loss of autonomy and disruption in familial relationships. Without appropriate support you may experience a worsening of your symptoms. Ms Cidoni considers that imprisonment is likely to be more burdensome for you due to your vulnerabilities and complex needs, particularly in light of your adverse childhood experiences coupled with your mental health and substance abuse issues. Separation from your daughter may exacerbate your emotional distress. Given these matters, I accept that limbs 5 and 6 of the principles in R v Verdins[5] are enlivened here, and I take this into account.
[5] [2007] VSCA 102.
48Your father has prepared a character reference noting that although he and your mother sought to provide a loving home, it was not without its difficulties or conflicts. He refers to your mother's mental health conditions which often resulted in her being confined to bed for weeks at a time. He notes there were ongoing periods of arguments and conflict which he considers impacted your sense of security and wellbeing. He refers to your work and relationship history noting the impact of the COVID-19 pandemic and the way in which that affected your ability to work. At one point you were sleeping in your car and you were often suicidal. According to your father you have expressed remorse for your participation in the activities for which you have been charged and you have acknowledged the foolishness of your actions.
49Clearly, you are well loved by your family, your partner and your daughter. Your father notes that he will continue to support you in every way possible to help establish a stable home life.
50A character reference has also been prepared by a friend of yours who has known you for over 15 years. He describes the period in which you were living outside of the family home as described by you to him, noting that there was a period in which the two of you lost contact. He states that he believes that loss of contact reflected your isolation and distress throughout the pandemic and the breakdown of your relationship. He notes that you appear to be ashamed of your actions and you have explained to him how serious the offending that you have committed was. You have described to him your desire to focus back on a career path as an arborist, and you have regularly expressed an eagerness to put this part of your life behind you. He too notes that you are a loving father and a caring friend.
51I have received a character reference from your partner who describes the relationship that the two of you have had. She refers to some of the difficulties that you have experienced both within your own family, noting what she says was a traumatising relationship at times with your mother due to her mental illness and the strict environment in which you were raised. Your partner refers to your substance abuse issues and the difficulties that you both experienced around the time that your daughter was born whereby your stress levels increased and there were a number of disagreements between the two of you. There was also some financial instability which resolved when you began working as an arborist.
52She notes you also underwent a number of other personal difficulties including losing two friends, and there was obviously a period of separation between you and your partner. She refers to the emotional difficulties that you have experienced and refers to there being times when you have spent weeks in bed. She notes that when you were arrested it was a sobering realisation of how close you had come to being away from her and your daughter.
53You have apparently spent a lot of time reflecting on your childhood trauma and the effects that this still has for you today. You are purportedly learning to manage your emotions better and you often talk about the choices that you have made in the past, reflecting on where you have gone wrong. Your partner observes that you are now more than ever making an effort to be a better person. She observes that the relationship you have with your daughter has grown into one of deep love and enjoyment and that you are a proud parent taking every opportunity to support her in learning and growth.
54Your partner notes that upon your incarceration she is concerned that her employment would be heavily impacted as well as your daughter's developmental progression. She states that they could not continue to live in the family home without both of your income. It would likely result in your daughter having to move schools which would further affect your partner's working availability. She notes that these fears have weighed heavily upon your mind and you have made a great effort to get your life back on track leading up to sentencing.
Burden of Imprisonment
55You counsel accepts realistically, that this offending must attract a gaol sentence. Given the financial arrangements that you have in place regarding your rental property, it seems that your partner and daughter will need to find alternative accommodation. Your partner will be unable to meet rental requirements without your income. This will place considerable strain upon your partner and this will, as I have said, likely mean a change of schools for your daughter.
56I accept that this will place a burden on your family, and furthermore that this will weigh heavily upon you in custody.[6]
[6] Crimes Act 1914 (Cth) s 16A(2)(e).
Plea of Guilty
57I take into account your plea of guilty which was entered at an early stage.[7] In pleading guilty, you have demonstrated a willingness to facilitate the course of justice and this indicates your remorse for the offending. Your plea has a significant utilitarian value in that you have saved the community the time and expense of running a criminal trial. At the time you entered your plea of guilty in July 2023, from the Court's perspective, there was still a backlog of trials as a result of the pandemic. Since then it has been determined that the backlog has reduced however I take into account that at the time that you entered the plea, as far as the Court was aware, there was still a backlog and, accordingly, consistent with the principles in Worboyes v The Queen,[8] there should be an appreciable discount in sentence.
[7] Crimes Act 1914 (Cth) s 16A(2)(g).
[8] [2021] VSCA 169.
58I take into account that you cooperated with police during the course of the investigation and made admissions in your record of interview. I accept that you are remorseful for this offending, which is reflected in your early plea of guilty, and you have expressed as much to others. Ms Cidoni observed that you expressed insight and remorse for your actions and acknowledged the impact of substance abuse upon your behaviour.[9]
[9] Crimes Act 1914 (Cth) s 16A(2)(f).
Prospects of Rehabilitation
59As I have said, Ms Cidoni opines that your risk of reoffending is medium to high without treatment, given the role that your substance use has played and the impact that this has had on your judgment. [10]
[10] Crimes Act 1914 (Cth) s 16A(n).
60You have clearly experienced a number of difficulties in your life but to your credit you have managed to be mostly gainfully employed and you have formed a series of strong relationships as well as raising a family. These all enhance your prospects of rehabilitation. However, your prospects will be greatly enhanced if you undertake counselling and treatment. This will be something that you need to motivate yourself to do, both for your own wellbeing and in order to maintain the harmonious relationships that are evidently so important to you. Notwithstanding Ms Cidoni's risk assessment, I note that you have not been in any further trouble with police, and your prior criminal history is minimal. You do not have any dishonesty related priors. I consider that your prospects of rehabilitation are good and are much improved with the right supports.
Nature and Gravity of the Offending
61Pursuant to s 16A(2)(a) of the Crimes Act 1914 (Cth), I must take into account the nature and circumstances of the offence. In doing this, I need to assess your level of criminality.
62Your conduct on Charge 1 was objectively serious. You opened two bank accounts in another person's name. Account 2 opened in the name of Richardson used a false driver's licence with your own image. This reflects a degree of sophistication, thus increasing the objective seriousness of the offending. You also had Richardson's drivers' licence in your possession.
63
Significantly, with respect to account 1, you used the identify of a neighbour,
Mr Talarico, in circumstances where you had access to his property. This, as the prosecution points out, represents a gross breach of trust. You were using his address for delivery of bank cards. These accounts were utilised for the money laundering offending which is the subject of Charge 2.
64As the Court of Appeal noted in The Queen v Raad,[11] 'criminal conduct of this kind strikes at the heart of the way in which ordinary commercial transactions are now conducted.' Here the degree of planning involved necessitates that stern punishment is warranted in order to achieve the principles of general deterrence.
[11] (2006) 15 VR 338 [34], cited in The Queen v Hou [2010] VSCA 36.
65This ties in with Charges 4 and 5 which involved the making and possession of false drivers' licences and false documents. Here there were real identities stolen from victims, which is an aggravating feature of the offending. The creation of licences bearing your image displays a degree of sophistication.
66In a similar way, using false licences to open cryptocurrency accounts (as occurred with Charge 3) is also objectively serious. Again, the use of real identities is an aggravating feature. Reiterating what the NSW CCA stated in Rasel v the Queen[12] - the impact of the offences on the person whose identities were stolen cannot be underestimated. They suffer a real sense of violation as their personal affairs were interfered with. This is borne out in Mr Webb's victim impact statement.
[12] [2022] NSWCCA 239 [38].
67Here you opened four accounts using false documentation bearing your image, thus reflecting the level of sophistication. There was a considerable degree of planning involved. I take into account that Charge 3 is a rolled up count encompassing almost two months of your conduct.
68As for Charge 2, offences against Division 400 of the Code are structured in order of seriousness. It is important to consider what you specifically did.[13] Here your offending occurred over a 14-month period, involving the use of two bank accounts and multiple transactions of a large amount of money. The offending was protracted and repeated. I accept that the annexure detailing the transactions, reflects that you used the money for what appears to be day to day living expenses. I also accept that it was inevitable that these payments would be traced back to you.
[13] R v Ansari [2007] NSWCCA 204; 70 NSWLR 89.
69In Samarakoon v The Queen,[14] the court reiterated the importance of the value of the proceeds of crime when assessing the objective seriousness of the offence. Here we are talking about a not insubstantial amount of money, which is a relevant factor in my instinctive synthesis. Money laundering is vital to the functioning of organised criminal syndicates. In committing this offence, you have been an important cog in the wheel of organised crime.[15] In order to give effect to general deterrence, such offending warrants significant punishment.
[14] [2018] VSCA 119.
[15] Kim v The Queen [2016] VSCA 238; Majeed v The Queen [2021] VSCA 124.
70Finally, as to the offending on Charge 6, I consider this to be relatively serious. General deterrence assumes prominence because offences of this type serve to frustrate the ability of investigators to carry out their tasks and potentially shields an offender from further and possibly more serious criminal liability. Although your counsel submitted there should be a degree of concurrency with respect to this charge, as discussed, I disagree. General deterrence looms large and I intend to order a period of cumulation for this charge.
General and specific deterrence
71Overall, general deterrence assumes prominence in the sentencing exercise. This is prescribed in s 16A(2)(ja) of the Crimes Act 1914 (Cth). Offences, particularly those on Charges 1 and 3 are often difficult to detect and the effect on victims whose identities have been used in the commission of such offences can be significant. Those who might be inclined to engage in this sort of offending, must understand that it will attract considerable punishment.
72The sentence I impose must reflect the significant punishment that is to be expected by people who participate in enterprises such as this.
73Furthermore, the court denounces your conduct. You have no relevant prior criminal history but specific deterrence is not irrelevant given the prolific nature of your offending and the period over which you conducted the offending.[16]
[16] Crimes Act 1914 (Cth) s 16A(j).
74In formulating an appropriate sentence, I have had regard to each of the matters discussed, the relevant provisions of s 16A(2), the maximum penalties and the need to impose a sentence that is just in all of the circumstances.[17] I have had regard to all relevant matters.
[17] Crimes Act 1914 (Cth) s 16A(k).
Totality
75You fall to be sentenced for a number of charges and your offending involves individual and serious conduct; so each offence warrants individual punishment. There is a need for the sentence to reflect the individual charges and the conduct they comprise.
76However, there is some degree of overlap. In any case, there should be a degree of concurrency appropriate to satisfy the principle of totality. I must ensure that the totality of the sentences imposed for these somewhat connected yet separate crimes, is met with a total and proportionate sentence. Therefore, I have moderated to a degree the length of the individual sentences and the periods of cumulation.
Current sentencing practices
77I have had regard to sentences imposed in comparable cases. However, this is only one factor and not the controlling factor in the fixing of a just sentence. As the High Court set out in The Queen v Pham,[18] when sentencing for a Commonwealth offence, I must have regard to sentences that have been imposed in other states and territories.
[18] [2015] HCA 39; (2015) 256 CLR 550.
78A table was tendered by the prosecution which summarised intermediate appellate sentences imposed for similar offending although in many instances, it is conceded that the offending in those comparable cases was more serious than here. With those limitations in mind, it is submitted that the table of comparative sentences illustrates, without defining, the possible range of sentences.
Sentencing Submissions
79Section 17A of the Crimes Act1914 (Cth) provides that the Court shall not pass a sentence of imprisonment for a Federal offence unless, having considered all available sentences, it is satisfied that no other sentence is appropriate in all the circumstances of the case.
80The prosecution submits that having regard to all the circumstances and all applicable sentencing principles, that an immediate term of imprisonment must be imposed. It is submitted on your behalf that whilst a term of imprisonment is inevitable, that upon serving a portion of the sentence, you should be released on a Recognisance Release Order for the balance of the sentence. Your counsel submits that such a sentence would operate as a punishment and denounce your conduct whilst also allowing you to continue part of your rehabilitation in the community. The prosecution does not take issue with this submission.
81I have considered all of the matters raised on your behalf and also by the prosecution. The submissions from each party have been most helpful. As I have said I take into account the maximum penalty for each of the offences, the gravity of the offending, your personal circumstances and all matters raised on the plea, whilst giving effect to the objectives of sentencing.
Sentence
82On Charge 1, the charge of providing false or misleading information, you are convicted and sentenced to 12 months' imprisonment.
83On Charge 2, the charge of dealing with money or other property reasonably suspected of being proceeds of crime, you are convicted and sentenced to 4 months' imprisonment.
84On Charge 3, the charge of producing false or misleading documents, you are convicted and sentenced to 10 months' imprisonment.
85On Charge 4, the charge of making a false document, you are convicted and sentenced to 6 months' imprisonment.
86On Charge 5, the charge of possessing a false document, you are convicted and sentenced to 6 months' imprisonment.
87On Charge 6, the charge of failing to comply with an order contrary to s3LA(5) of the Crimes Act, you are convicted and sentenced to 4 months' imprisonment.
Orders for cumulation
88I order that Charge 1 will be the base sentence.
89I order that 2 months of the sentence imposed on Charge 2 be served cumulatively with the sentence imposed on Charge 1.
90I order that 5 months of the sentence imposed on Charge 3 be served cumulatively with the sentence imposed on Charge 1 and on other sentences imposed this day.
91I order that 2 months of the sentence imposed on Charge 4 be served cumulatively with the sentence imposed on Charge 1 and other sentences imposed this day.
92I order that 1 month of the sentence imposed on Charge 5 be served cumulatively with the sentence imposed on Charge 1 and other sentences imposed on this day.
93I order that 2 months of the sentence imposed on Charge 6 be served cumulatively with the sentence imposed on Charge 1 and other sentences imposed this day.
94This makes a total effective sentence of 2 years' imprisonment.
95I order that pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) that you be released after serving 10 months upon entering into a recognisance in the sum of $1,000, to comply with the condition that you be of good behaviour for 2 years.
96I need to explain to you the effect of the sentence that I have imposed. It is not that dissimilar in some ways to a partially suspended sentence. The overall sentence is 2 years' imprisonment, but you will be released after serving 10 months of that sentence. The remaining period of 14 months will be hanging over your head for the following 2 years. If in that time, you were to commit a further offence punishable by imprisonment, you may well be required to serve the balance of the sentence, being the further 14 months, in addition to whatever penalty you might receive in relation to the further offending. The recognisance amount, that is the $1,000 is only potentially payable by you, if you breach the term of the recognisance – that is, if you were to re-offend in that 2 year period.
S 6AAA
97I also indicate pursuant to s6AAA of the Sentencing Act1991 (Vic), that but for your plea of guilty, I would have sentenced you to 3 years' imprisonment to be released on a recognisance after serving 18 months.
98I will declare that the sentence on Charge 1 will commence today. The sentence on Charge 2 will commence 10 months after the commencement of the sentence on Charge 1. The sentence on Charge 3 will commence 9 months after the commencement of the sentence on Charge 1. The sentence on Charge 4 will commence 15 months after the commencement of the sentence on Charge 1. The sentence on Charge 5 will commence 16 months after the sentence on Charge 1. And the sentence on Charge 6 will commence 20 months after the commencement of the sentence on Charge 1.
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