Director of Public Prosecutions v Singh

[2024] ACTSC 202

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

DPP v Singh

Citation: 

[2024] ACTSC 202

Hearing Date: 

29 April 2024

Decision Date: 

28 June 2024

Before:

McWilliam J

Decision: 

Offender sentenced to terms of imprisonment totalling 1 year, 11 months and 28 days, to be served by way of an intensive correction order, with 100 hours of community service ordered.

Catchwords: 

CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – obtaining property by deception – delivery driver involved in scheme to receive fraudulent consignments of mobile phones – no criminal antecedents – where childhood disadvantage present – where time in custody already served – rehabilitation prioritised – intensive correction order with community service condition imposed

Legislation Cited: 

Criminal Code 2002 (ACT) s 326

Crimes (Sentence Administration) Act 2005 s 42

Crimes (Sentencing) Act 2005 (ACT)ss 7, 11, 33, 35

Cases Cited: 

Bugmy v The Queen [2013] HCA 37; 249 CLR 571

Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204

Cranfield v The Queen [2018] ACTCA 3

Director of Public Prosecutions v Jesse Draper (a pseudonym) [2023] ACTSC 109

DPP v Aseeri [2024] ACTSC 18

DPP v Calhoun (a pseudonym) [2023] ACTSC 189

DPP v Carr (Unreported, ACT Supreme Court, Refshauge AJ, 14 November 2023)

DPP v Librando [2024] ACTSC 100

DPP v Moala (No 3) [2023] ACTSC 306

Hili v The Queen [2010] HCA 45; 242 CLR 520

Laipato v The Queen [2020] ACTCA 35

Markarian v The Queen [2005] HCA 25; 228 CLR 357

Mitchell v R [2006] NSWCCA 72

Mitchell v The Queen [2006] NSWCCA 72

Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99

Muldrock v The Queen [2011] HCA 39; 244 CLR 120

O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244

Pearce v The Queen [1998] HCA 57; 194 CLR 610

R v Donnelly [2021] ACTSC 336

R v Forrest (No 2) [2017] ACTSC 83

R v Garay (No 4) [2022] ACTSC 138

R v Hopkins [2004] NSWCCA 105

R v Kilic [2016] HCA 48; 259 CLR 256

R v Miller [2019] ACTCA 25

R v Mooney [2017] ACTSC 358

R v Morris [2017] ACTSC 400

R v Newby [2022] ACTCA 20; 367 FLR 122

R v Nicholas; R v Palmer [2019] ACTCA 36

R v Pont [2000] NSWCCA 419; 121 A Crim R

R v QU [2019] ACTSC 155

R v Slattery [2021] ACTSC 154

R v Snowden [2022] ACTSC 186

R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103

Thorn v Laidlaw [2005] ACTCA 49

Veen v The Queen (No 2) (1988) 164 CLR 465

Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50

Wyper v R; R v Wyper [2017] ACTCA 59; 19 ACTLR 288

Parties: 

Director of Public Prosecutions

Harjeet Singh (Offender)

Representation: 

Counsel

M Fieldus (DPP)

J Cooper (Offender)

Solicitors

ACT Director of Public Prosecutions (DPP)

Aulich Criminal Law ( Offender)

File Number:

SCC 17 of 2024

Charge Numbers:

CAN 2024/1528

CAN 2024/1529

CAN 2024/1530

CAN 2024/1531

McWILLIAM J:         

1․Mr Harjeet Singh (the offender) is before the Court for sentence, having pleaded guilty on 1 February 2024 to four charges of obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT) (CAN 2024/1528, CAN 2024/1529, CAN 2024/1530 and CAN 2024/1531).

2․The offences arise from conduct occurring between 9 January 2023 to 1 June 2023.  The particulars of the offences are that the offender, in his capacity as a contracted delivery driver for the Australia Post Corporation (Australia Post), dishonestly obtained a number of iPhones from the Telstra Corporation and TPG Corporation by scanning them as delivered and then taking them to his home.  The offender passed the iPhones on to an unknown third party in exchange for cash.  

3․The maximum penalty for each offence is a term of imprisonment for 10 years, a fine of $160,000.00 or both.

Facts of the offending

4․By way of background, Startrack is a delivery business wholly owned by Australia Post.  Telstra and Vodafone use the Startrack network to deliver their products, with the delivery parcel described as a consignment.

5․The offender was a parcel contractor.  He drove a delivery van owned by someone else. Each parcel contractor is issued with a handheld scanning device.  The device required a unique login and password associated with that particular contractor. 

6․When delivering consignments from Telstra and Vodafone, parcel contractors are required to take the consignment to the delivery address and sight the receiver’s identification to match against the details of the consignment.  The consignments may only be delivered to the person named on the delivery label.

7․When delivering each consignment, the offender was required to scan the consignment barcode as ‘delivered’ and enter the name of the receiver into their handheld scanner, before having the receiver sign the screen of the handheld scanner.

8․Since December 2022, the Telstra corporation has been the subject of an ongoing fraud involving the theft of Apple iPhones.  The fraud involves an unknown party gaining access to the online account of a Telstra customer, ordering a mobile handset through the account and changing the customer’s address in the system to an address within an area of operation of a particular Australia Post worker.

9․In January 2023, the offender was approached by an unidentified male third party and become involved with this operation.

The fraud operation

10․Mobile phones (iPhones) would be ordered from the compromised accounts of Telstra and Vodafone customers.  The delivery address would be changed to an address in Ngunnawal, which was an area within the offender’s set area of operation.  The relevant orders would be identified to the offender in advance.  The offender would mark the parcels as delivered to the account holder while on his delivery route.  He would then take those parcels to his home.  He would then open the packages, remove the iPhones and keep them for collection.  The phones would then be collected on the weekend and the offender would be given $300 in cash.

11․The offender was involved in this activity over a 6-month period, from January to June 2023. The details of the products, accounts and delivery addresses were contained in the statement of agreed facts.  The four charges relate to a total of 57 consignments with a total combined value of $136,933.00 which the offender scanned as ‘delivered’ but failed to deliver, as follows:

(a)Between 9 January and 19 May 2023 (CAN 2024/1531): the offender scanned 34 consignments from Telstra containing iPhones as delivered but did not deliver them.  The iPhones were not recovered.  The combined value of the iPhones was $81,186.00.

(b)Between 24 May 2023 and 1 June 2023 (CAN 2024/1530): the offender scanned 16 consignments from Telstra containing iPhones as delivered but did not deliver them.  All 16 of the iPhones were recovered.  The combined value of the iPhones was $39,054.00.

(c)On 1 June 2023:

(i)    The offender scanned 5 consignments from Telstra containing iPhones as delivered to two addresses but did not deliver them.  The combined value of the iPhones was $12,095.00 (CAN 2024/1528). 

(ii)   The offender scanned 2 consignments from Vodafone containing iPhones as delivered but did not deliver them.  The combined value of the iPhones was $4,598.00 (CAN 2024/1529).

The offender later drove the delivery van to his home address and carried the packages inside before leaving the location.  It is not specified in the agreed facts whether those parcels were recovered.  However, a search warrant was executed later that day.

Search of the offender’s residence and the vehicle he was driving on 1 June 2023

12․Upon execution of the search warrants, 16 of the fraudulently ordered iPhones marked as delivered by the offender were found in a chest of drawers in his bedroom. Several Startrack delivery boxes and satchels, letters from Telstra Corporation and Telstra Postpaid sim cards associated with the fraudulent orders were located in the offender’s garage.

The Court’s sentencing task

13․The statutory sentencing objectives are contained in s 7 of the Crimes (Sentencing) Act 2005 (ACT)(Sentencing Act).  They are as follows:

7 Purposes of sentencing

(1)A court may impose a sentence on an offender for 1 or more of the following purposes:

(a)to ensure that the offender is adequately punished for the offence in a way that is just and appropriate;

(b)to prevent crime by deterring the offender and other people from committing the same or similar offences;

(c)to protect the community from the offender;

(d)to promote the rehabilitation of the offender;

(e)to make the offender accountable for his or her actions;

(f)to denounce the conduct of the offender;

(g)to recognise the harm done to the victim of the crime and the community.

(2)To remove any doubt, nothing about the order in which the purposes appear in subsection (1) implies that any purpose must be given greater weight than any other purpose.

14․As has been said many times, a central part of the Court’s task is working out what constitutes “justice” for the particular individual before the Court.  That was explained in MT v The Queen [2021] ACTCA 26; 17 ACTLR 22, where the Court of Appeal stated at [56]:

The principle of individualised justice is central to all sentencing exercises; any sentencing court is required to impose a sentence that is just and appropriate in all the circumstances, including the circumstances personal to the offender. …

15․The application of that principle means that in imposing a sentence which balances the need for denunciation, punishment, and general and specific deterrence against the need to support and promote an offender’s rehabilitation, the sentence that is just and appropriate is one that is uniquely crafted for that individual offender.

16․Relevant to this offender, a sentence of imprisonment should never exceed the minimum that is necessary to accomplish relevant sentencing objectives: Thorn v Laidlaw [2005] ACTCA 49 at [30].

17․Those considerations have been taken into account in the reasoning that follows.

Nature and circumstances of the offences (s 33(1)(a) of the Sentencing Act)

18․A consideration of the nature and circumstances of the offences requires the Court to assess the objective seriousness of the conduct in question, as part of an overall assessment of where the facts of the particular offence and offender lie in the “spectrum” from the least serious instances of the offence to the most serious, taking into account both the nature of the crime and the circumstances of the criminal: R v Kilic [2016] HCA 48; 259 CLR 256 at [19].

19․In this part of the sentencing exercise, the evaluation is “objective”, in that the Court disregards matters personal to the offender and determines the seriousness wholly by reference to the nature of the offending: Muldrock v The Queen [2011] HCA 39; 244 CLR 120 at [27]. The subjective features (being the offender’s personal circumstances) and the after-effects of offending are considered separately, for example, as part of the context of factors listed in s 33 of the Sentencing Act: see McLeod v The Queen [2018] ACTCA 59 at [12].

20․The sentence ultimately imposed must be proportional to the objective seriousness of the offence: R v Miller [2019] ACTCA 25 (Miller) at [37], cited in R v Lindsay [2020] ACTCA 25 at [32].

21․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].

22․The Court is obliged to consider the factors bearing upon the objective seriousness of each offence, although not to explicitly specify whether a particular offence falls into the low, mid or upper range of such offences: Miller at [22]. It has been said that when any offence is placed on a spectrum of seriousness that extends from low range through mid-range to high range, the placement (without more) invites a simplistic approach to sentencing that may be generally unhelpful, such that it is preferable to articulate the factors that inform the character of an offence’s objective seriousness: Laipato v The Queen [2020] ACTCA 35 at [156].

23․In doing so, on occasion it may be helpful to list the factors that have been considered as being relevant to the Court’s consideration.  Such lists should not be considered as a checklist, the absence of any of which reduces the objective seriousness of the offence.  In DPP v Moala (No 3) [2023] ACTSC 306, McCallum CJ stated at [24] (emphasis added):

… Such lists can be useful provided their limits are understood. A list of factors drawn from decided cases can never serve as a proxy for the central judicial function of making an evaluative assessment of the overall objective seriousness of an offence having regard to the circumstances of the case at hand. ... It is trite that the absence of an aggravating factor does not mitigate an offence; it simply means the offence is not aggravated by that factor.

24․In respect of the present offences, factors that have been considered have been 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.

25․The Court considers the objective seriousness of each offence, and the amounts involved, individually.  Although it is worth bearing in mind that in the present case, the combined value of the fraud was significant ($136,933.00), involving 57 consignments over a 6-month period as a sustained course of conduct.  However, the offender himself did not receive more than a few thousand dollars over the entirety of the offending.

26․As the prosecution submitted, each offence involved rolled up counts, and as such encompasses a higher degree of criminality, with the approach to be taken in such circumstances set out in R v Forrest (No 2) [2017] ACTSC 83 at [161]-[164]:

161. As noted in describing the facts of the various offences, a number of the counts are what are known as rolled-up counts. As described in R v Jones [2004] VSCA 68 at [13], a rolled-up count is a collection of counts bundled into a single count. It is different from a representative count. It can only be followed as a procedure with the consent of the accused. Similarly, it can only be used for the purposes of a plea of guilty, else the count would be duplicated.

162. While this is a common approach in other jurisdictions, especially Victoria, it is not regularly used in this Territory. It was, it appears, used as early as 1995: R v Hennessy (Unreported, Federal Court of Australia, Gallop, Sheppard and Nicholson JJ, 23 May 1996) at 7. In 2013, it was doubted that it was an appropriate way to proceed in Kaye v Siddiq [2013] ACTSC 62 at [21], though his Honour, it appears to have, with respect, been wrong to hold that the prosecution could not, on the plea of guilty, have used a rolled-up charge. In any event, it was made clear in R v Naqvi [2016] ACTSC 345, that the approach was available in the Territory.

163. The rolled-up charge, though comprehending a number of offences, is for sentencing purposes, the one offence: R v Beary [2004] VSCA 229; 11 VR 151 at 157; [14]. The maximum penalty for the offence applies but only one sentence can be imposed. 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]. It, therefore, not only considerably simplifies the task of a sentencing judge, but it provides a considerable benefit to the offender: R v Jones at [13].

164. Nevertheless, 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]. This may also have a bearing on accumulation and concurrency: R v De Leeuw [2015] NSWCCA 183 at [116].

27․For each offence, the offender occupied a position of trust, in that his job as part of the delivery network required the trust of Australia Post to deliver the item to the address specified.  The customers who used the Australia Post network also trusted the integrity of that network.  It may readily be seen that the offender used that position of trust to commit the offences.  The scheme also involved a significant degree of premeditation and planning.  Although he was not the ultimate mastermind, the offender was notified in advance of which consignments he was to purportedly deliver and then retain.  He then had to take a number of steps in order to commit the deception, including driving to the location, using the scanner, retaining the parcels and providing them to the person collecting them.  However, I do not accept the offending was brazen (as the prosecution had submitted).  That someone may readily be detected by dashcam footage on the delivery vehicle does not equate to a bold or shameless attitude.

28․Every instance of this offending is of significant objective seriousness, including a more serious degree of criminality because the charges are rolled-up.  By far the most serious of the offences is CAN 2024/1531, which occurred over 4 months and had the highest value.  I also accept the prosecution’s submission that CAN 2024/1530 was similarly of an increased objective seriousness, relative to the remaining offences, which occurred on one day only and involved amounts of significantly less value.

The offender’s custodial status

29․Following the execution of the search warrant, the offender was taken into custody on 1 June 2023 but released on bail on 7 June 2023, marking a total of 7 days in custody which will be taken into account in the ultimate sentence although not by way of backdating for reasons that will become apparent.

Subjective circumstances of the offender (s 33(1)(m) of the Sentencing Act)

30․Both a pre-sentence report dated 18 April 2024 and an Intensive Correction Order Assessment report dated 20 June 2024 were in evidence before the Court.

Family background

31․The offender was born in India.  He was the oldest of three children in a family of farmers, which faced financial hardship while the offender grew up. The family remains in debt, with further strain arising from health issues pertaining to the offender’s father as well as financial pressure from the cost of his sister’s recent marriage.  In becoming involved in the conduct for which he is being sentenced, the offender was seeking to assist in the repayment of family debts.

32․The offender arrived in Australia in 2020 to study and seek employment as a better means of financially supporting his family. The offender married in 2022 and does not currently have children. His wife is on an Australian working visa and the offender is a dependent spouse. His wife has applied for permanent residency, which she has told the Court has been affected by her husband’s offending.

Employment prospects and financial situation

33․The offender completed his education in India, to the equivalent of Year 12, before arriving in Australia where he completed a Diploma and an Advanced Diploma of Business in 2022.

34․The offender was employed by Australia Post for two and a half years in Sydney, before moving to Canberra where he continued working for that company. He has been dismissed from his position due to the current offences.

35․The offender was then unemployed for six months.  He now works as a casual delivery driver.   

36․His family sold part of their farmland to fund, firstly, the offender’s migration to Australia and now the legal fees in this matter.  There is a loan taken out on the remaining farmland, and the family heavily relies on the offender for financial support.

37․The offender has a number of other debts which were detailed in the evidence but there is no history of gambling.

Alcohol and/or drug use

38․The offender reported occasional alcohol use and intoxication but denied using any illicit substances. This was confirmed by his wife and by random urinalysis.

Medical, emotional and mental health

39․Prior to the offending, the offender did not have any diagnosed mental health conditions.

40․Since the arrest and entering into his brief period of custody for the present offending, he has suffered a significant downturn in his mental health.  An expert report prepared by a psychologist, which was before the Court, indicates that he is currently suffering from depression and that his likely ongoing treatment needs would be best served in the community.

Victim impact statement (s 33(1)(f) of the Sentencing Act)

41․No victim impact statements were before the court, with only the evidence of the financial losses faced by Telstra and Vodafone in evidence. There was also no evidence of any victim impact in terms of the individual customers whose accounts were used in the fraud.  However, this is plainly not a victimless crime.

Plea of guilty (s 33(1)(j) of the Sentencing Act)

42․The offender has pleaded guilty to all four offences. The Court may impose a lesser period than it would otherwise have imposed if the offender had not pleaded guilty to the offence: s 35(3) of the Sentencing Act. If it does so, the penalty that would otherwise have been imposed but for the guilty plea must be explicitly stated: s 37(2)(a) of the Sentencing Act.

43․The applicable discount for a guilty plea is a matter of discretion: Cranfield v The Queen [2018] ACTCA 3 at [37]-[38]. It is necessary to consider the particular circumstances in which the plea was entered, including the statutory matters set out in s 35(2) of the Sentencing Act.  Some of those matters are addressed separately earlier in these reasons, such as the seriousness of the offence and the effect of the offence on the victim.

44․As discussed in cases such as Monfries v The Queen [2014] ACTCA 46; 19 ACTLR 99 at [47] and R v Toumo’ua [2017] ACTCA 9; 12 ACTLR 103 at [49], utilitarian value is a primary consideration, as seen through:

(a)section 35(2)(b) of the Sentencing Act, which requires the Court to take into account when the offender pleaded guilty, or indicated an intention to plead guilty; and

(b)section 35(5) of the Sentencing Act, which provides that the earlier in the proceeding that the guilty plea is made, or indication is given that it will be made, the lesser the penalty the Court may impose.

45․While the discretion under s 35 of the Sentencing Act remains unfettered, a principled approach to its exercise enhances consistency and a degree of predictability, which in turn furthers the interests and administration of justice through the ability of legal practitioners to reliably advise their clients and the confidence of the community arising from consistency. 

46․In this case, the pleas were entered after service of the brief and following negotiations (s 35(2)(b) and (c) of the Sentencing Act).  Applying R v Nicholas; R v Palmer [2019] ACTCA 36 at [49]-[53], and but for what follows, a discount of 15-20% may have been appropriate.

47․The prosecution has submitted that the case against the offender in respect of each offence was “overwhelmingly strong” such that s 35(4) of the Sentencing Act applies.  That section provides that the Court:

…must not make any significant reduction for the fact that the offender pleaded guilty if, based on established facts, the court considers that the prosecution’s case for the offence was overwhelmingly strong.

48․The following principles apply:

(a)If the Court considers the prosecution’s case was overwhelmingly strong, s 35(4) of the Sentencing Act is enlivened, although this does not preclude the giving of a limited discount for the guilty plea, nor does it preclude a discount for other factors: R v Newby [2022] ACTCA 20; 367 FLR 122 (Newby) at [49].

(b)If the Court does not form the view that the case was “overwhelmingly” strong, the strength of the prosecution case becomes irrelevant to the exercise of the Court’s discretion in applying any discount for a plea of guilty: Cooke (a pseudonym) v The Queen [2022] ACTCA 44; 18 ACTLR 204 at [47].

(c)Overwhelming means (Newby at [31]): “so great as to render opposition useless”. In context, it suggests that an acquittal is realistically unlikely and calls for “a practical assessment of the reality of the situations”. It does not mean “so high a hurdle that it can never be met”.

(d)Where the prosecution argues for the application of s 35(4) of the Sentencing Act, or it is the subject of a specific submission, the Court is required to address the issue and give a clear and express explanation of the reasons for the conclusion expressed: Newby at [39]-[43].

(e)In assessing whether the strength of the case was overwhelming, the Court may take into account admissions, as they form part of the evidence upon which an assessment of the prosecution case must be made: R v Snowden [2022] ACTSC 186 (Snowden)at [44], citing R v Garay (No 4) [2022] ACTSC 138 at [114].

(f)If the Court finds that the prosecution’s case was overwhelmingly strong, the Court will be required to grapple with what constitutes a “significant reduction”, which may vary from case to case. It may be relevant to consider the significance of a reduction by reference to the percentage by which the sentence is to be reduced, or, where the head sentence is a long one, the period of the reduction: Snowden at [47], cited in Director of Public Prosecutions v Jesse Draper (a pseudonym) [2023] ACTSC 109 at [35].

(g)Although the making of admissions may impact upon the conclusion reached as to whether a particular case is overwhelming, they may also separately be taken into account in assessing the offender’s willingness to facilitate the course of justice, which reflects upon his remorse, contrition and likelihood of reoffending: Snowden at [48].

49․Here, the offender made full and frank admissions in a police record of interview on 22 December 2023.  There were records kept by Australia Post tying the offender’s personalised login code to the offender, the packaging bearing the names, addresses and consignment numbers with fraudulently ordered phones were located in the offender’s garage, along with sim cards and correspondence from Telstra, and 16 of the fraudulently ordered phones were recovered from the offender’s residential address, located in a drawer in his bedroom.  There was also dashcam footage of 1 June 2023, showing that the offender did not exit the vehicle and attempt any deliveries at the time that he scanned the consignments and marked them as delivered. 

50․When all of those matters are taken into account, this is a case that may properly be described as overwhelmingly strong. 

51․However, s 36 of the Sentencing Act permits the Court to impose a lesser penalty, on the offender than it would otherwise have imposed in circumstances where the offender assisted law enforcement authorities in preventing, detecting or investigating the offence. The considerations that apply have been discussed in Will v The Queen (No 2) [2021] ACTCA 14; 16 ACTLR 50 at [67]-[71], with primacy given to the public interest of promoting willing cooperation. The Court of Appeal later stated at [84] that the awarding of any discount under s 36 is discretionary, with the onus on the offender to show that there should be a discount.

52․In DPP v Calhoun (a pseudonym) [2023] ACTSC 189, Mossop J was dealing with a plea of guilty where admissions had been made in respect of a series of offences. His Honour referred (at [64]) to the decision in Snowden at [44] before stating (emphasis added):

… The effect of s 35(4) would be to deny the offender a discount on account of the plea of guilty because of the strength of the prosecution case in circumstances where the strength of that case arose from voluntary admissions made by the offender. This would appear to be an outcome which was unfair and reflected no real sentencing purpose. However s 35(4) must be read along with s 36 which permits a lesser penalty to be imposed where the offender has assisted in investigating the offence or assisted in a proceeding in relation to the offence. That must include the making of admissions that assist in the investigation or prosecution of the case against the offender. Nothing in the considerations in s 36(3) indicate that assistance in this form is not within the contemplation of the section. In circumstances where the offender would have been entitled to a reduction of 25 percent under s 35 but for the making of admissions that assisted the prosecution case, it is appropriate that he receive that discount by a combination of ss 35 and 36 of the Crimes (Sentencing) Act. …

53․Here, the offender not only made admissions in relation to the fraud, but he attempted to provide some further assistance to police, by telling them everything he knew about the people who had recruited him.  Although this did not result in further arrests of those ultimately responsible for the wider fraudulent manipulation of customer addressed, police did not doubt his frankness and honesty in relation to the information.

54․For each of the offences, a combined discount under ss 35 and 36 of the Sentencing Act of 20% will be applied. If it is necessary to disclose separate discounts, I have determined 8% under s 35 and 12% under s 36.

Remorse (s 33(1)(w) of the Sentencing Act)

55․The offender says that he initially was led to believe that he was performing additional work to earn extra money.  He claimed that he was not aware that he was involved in illegal activity until a couple of months after, which is consistent with his wife’s account of what he told her in April 2023. 

56․Making allowances for any difficulties with the English language, there are two concerns about this.  Firstly, people who are scammed or find themselves losing money to fraudsters and conmen may well speak of not realising what was happening initially.  This offender was not such a person.  It is difficult to understand how anyone could think that pretending to deliver mobile phones to people at fake addresses, keeping the merchandise and then handing the phones over to an unidentified person on the weekend for cash was in any way legitimate and lawful work.  Secondly, by April 2023, it was readily apparent to the offender that what he was doing constituted criminal conduct, and yet, he continued to engage in the ruse for another 2 months.

57․The offender’s reason for continuing such behaviour is that he sought to extricate himself from the scheme but in doing so, he was blackmailed, with the person telling him that he will be reported to Australia Post and would lose his job if he did not continue participating in the deception for another 2 months. 

58․The offender has since expressed remorse and has apologised to the companies affected, including seeking to repay modest sums to each of Australia Post and Vodafone. 

Criminal history (s 33(1)(m) of the Sentencing Act)

59․The offender has no prior criminal record. I have taken the lack of history into account in the manner described in Veen v The Queen (No 2) (1988) 164 CLR 465 at 478, in the sense that I am persuaded that although there are four serious offences before the Court, the offending may equally be viewed as a single course of offending over a 6 month period that was uncharacteristic of the offender and leniency in that regard is a consideration.

Current sentencing practice (s 33(1)(za) of the Sentencing Act)

60․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].

61․The parties directed the Court to a number of comparable cases.  First is R v QU [2019] ACTSC 155 (QU), where the offender was a finance officer who made over 250 fraudulent transactions over a period of almost 2 years from the company to her own account using false descriptions and unauthorised use of company payroll systems to pay herself unauthorised wages and superannuation. The transactions were worth over $160,430.39.   The charges included 3 counts of obtaining property by deception, for which she was sentenced to terms of imprisonment ranging between 5 months and 2 years following a 25% discount on account of her pleas of guilty.  The offender had a minor criminal history, was using drugs at the time, and was motivated by her gambling addiction.  The sentence imposed was to be served by an intensive correction order (ICO).

62․In R v Mooney [2017] ACTSC 358, the offender was a finance officer who made over 600 unauthorised transactions worth $157,609.06 over a period of 4 years, being payments of wages to herself and personal purchases on the organisation’s credit card. The charges included 3 rolled-up counts of obtaining property by deception, for which she was sentenced to imprisonment ranging from between 8 months to 20 months, following a 15 per cent discount on account of pleas of guilty.

63․In R v Morris [2017] ACTSC 400, the offender transferred over $191,000.00 from her employer’s bank account into her own by falsifying supplier invoices on 19 occasions over a period of 8 months. She pleaded guilty to 8 counts of obtaining property by deception, some of which were rolled up charges. The offender was aged 50 with no prior offences. The sentences of imprisonment imposed for all 8 counts ranged between 10 months and 13 months. In total, the 20-month head sentence was suspended after 5 months with a good behaviour order for a period of 2 years.

64․In R v Snowden [2022] ACTSC 186, the offender was a branch manager of a shipping container company who was responsible for dealing with clients, managing stock and facilitating payments. On 49 occasions over a period of around 3.5 years, the offender directed $230,567.00 worth of payments to his personal bank account and accepted and retained another $18,130.00 in cash. The offender had no prior convictions. The sentence for the charge of obtaining property by deception was of imprisonment for 40 months, suspended after 8 months with a good behaviour order for a period of 32 months.

65․In DPP v Aseeri [2024] ACTSC 18, the offender and three others engaged in a scheme to obtain illegal e-cigarettes from a seller on an online platform by pretending to have scheduled payments of a deposit and pretending to pay for the remainder in cash which was in fact just paper, and absconding with the goods. For the one charge of obtaining property by deception, the offender was sentenced to a term of imprisonment of 21 months and 15 days following a discount of 10% on account of a late guilty plea. The sentence was wholly suspended, subject to a good behaviour order of 2 years and 100 hours of community service.

66․In DPP v Librando [2024] ACTSC 100 (Librando), the offender was responsible for paying invoices and maintaining a nursing home, in which she made 43 fraudulent invoices over 19 months in order to induce the head office to make payments of $48,512.50 towards her personal bank account. The offender was driven by a gambling addiction and suffered from a mental illness but was of prior good character and otherwise had good prospects of rehabilitation.  The offender was sentenced to a term of imprisonment of 1 year and 6 months following a reduction of 25 per cent for her guilty plea (in addition to imprisonment for other offending), which was then ordered to be served by way of an ICO.

Disposition

67․In my view, general deterrence is of very great significance in cases of criminal deception.  Similar views have also recently been expressed by Mossop J in Snowden at [54] and by Baker J in Librando at [50]. Trust by employers in their employees and their contractors is essential to the operation of any business. Such offending is colloquially described as white-collar crime. It is difficult to detect and again, as has been observed elsewhere, its impact may fall upon a wider group of investors or creditors (R v Pont [2000] NSWCCA 419; 121 A Crim R per Wood CJ at CL at [59], cited in Mitchell v R [2006] NSWCCA 72 at [10]).

68․However, any assessment of the offender’s moral culpability requires a broader contextual understanding of the circumstances in which the offending arose.  They have been referred to above and highlighted by the offender’s legal representative. In particular, childhood poverty is a matter that is relevant and, in that regard, the considerations articulated in Bugmy v The Queen [2013] HCA 37; 249 CLR 571 at [40], [43]-[44] apply here. I accept that this offender’s lack of English and financial pressures led to his consequent vulnerability at the time that the opportunity to offend arose. These were contributing factors here, and most significantly, may have fed into explaining why, once the offender realised what was occurring was illegal, he did not make better decisions, such as going to the police.

69․In light of those considerations, notwithstanding the offender’s unblemished record, nothing else but a sentence of imprisonment is appropriate.  It remains to consider the form of that custody to be imposed.  A sentence of imprisonment may be served in the community by way of either a suspended sentence or an ICO.  In my view, a suspended sentence would not meet the purposes of sentencing in the circumstances of this case.  That is why this sentence hearing was adjourned, to obtain the necessary ICO assessment, required to enliven that alternative as a statutory option.  The offender has been since been assessed as suitable for an ICO, with the assessor also confirming that the offender is suitable for a community service work condition and that appropriate work is available for him to undertake.

70․I am cognisant of the views that an ICO is “unquestionably a less punitive order than a sentence of full-time detention”, but it is still punishment to which “onerous conditions may attach”: Librando at [52]. It has been described as a “sentence of last resort before full-time imprisonment” in Wyper v R; R v Wyper [2017] ACTCA 59; 19 ACTLR 288, where the Court of Appeal then stated at [128]-[129]:

128. In the Explanatory Statement to the Crimes (Sentencing and Restorative Justice) Amendment Bill 2015 (ACT), the Attorney-General explained that an ICO is “a sentence of ‘last resort’ for offenders before full-time imprisonment.” Further, an ICO was “designed to be punitive while still allowing the courts to incorporate elements of rehabilitation... It is flexible ... but still sufficiently structured to ensure every order places appropriate demands on an offender.”

129. There can be no general rule that, where general deterrence is an important sentencing purpose, …, it is never appropriate for a court to make an ICO. In relation to any category of offence, a sentencing court has a broad discretion which must take into account many considerations, not just general deterrence. In any event, the legislature envisaged that an ICO could reflect sentencing purposes such as general deterrence.

71․In this case, rehabilitation conflicts with general deterrence.  Where two highly relevant considerations are incompatible, it is not necessarily the case that the end result must constitute some kind of averaging out between the two. There are circumstances in which one is entitled to be determinative: see for example R v Hopkins [2004] NSWCCA 105, cited by Loukas-Karlsson J in QU at [82].

72․On the evidence before the Court, specific deterrence has very much been achieved.  The offender has lost his job, his reputation in part through media reporting and the transparency of open justice, his self-esteem, and his unblemished criminal record. 

73․Given that the offender’s moral culpability is somewhat reduced for the reasons described above, and the fact that the offender has already served 7 days in custody, I am satisfied that it is not necessary for a term of full-time imprisonment to be imposed to satisfy the need for punishment, general and specific deterrence, and accountability.  In circumstances where a person has never served any time in custody, nor had any interaction with the justice system at all, 7 days in prison is not to be scoffed at, and for this offender that time has served a very clear punishment objective. An ICO is appropriate here because in my view, in the offender’s circumstances, it is the option that best balances general deterrence with rehabilitation.

74․As mentioned, the offender has been seeking to provide modest sums to the corporate victims in reparation.  I did consider a fine or reparation order in addition to a sentence of imprisonment.  However, the offender’s financial circumstances show that he is not at all in any position to repay the debt and I have formed the view that such an order would only serve to entrench the dire financial situation of the offender and his family.

Totality considerations

75․I have given consideration to the applicable totality principles across the four offences, as summarised in O’Brien v The Queen [2015] ACTCA 47; 19 ACTLR 244 at [26]:

The relevant principles in relation to the fixing of sentences for multiple offences and the consideration of totality are also well settled. They include the following:

(a)When sentencing for multiple offences, the sentencing judge must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well as totality: Pearce v The Queen (1998) 194 CLR 610 at 623–624.

(b)The principle of totality requires the sentencing judge to review the aggregate sentence, look at the totality of the criminal behaviour and consider whether the aggregate is “just and appropriate” for all the offences: Mill at 63.

(c)A countervailing factor is the need to ensure 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: R v Wheeler [2000] NSWCCA 34 at [36]. The Court must avoid any suggestion that what is being offered is a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]; R v MAK (2006) 167 A Crim R 159 at [18].

(d)Where offences are discrete and independent, the sentence for one offence cannot comprehend and reflect the criminality of the other. In such circumstances, the sentences should be at least partly cumulative; otherwise there is a risk that the total sentence will not reflect the total criminality of the two offences. Where, however, the offences are not separate and distinct, but are part of a single episode of criminality with common features, it is more likely that the sentence for one of the offences will reflect the criminality of both, in which case the sentences should be concurrent, or at least partly concurrent: Cahyadi v The Queen (2007) 168 A Crim R 41 at [27].

76․Here, a significant measure of concurrency is appropriate to avoid double punishment for the commission of offences with common elements: Pearce v The Queen [1998] HCA 57; 194 CLR 610 at [40]. The prosecution accepted that to some extent, the offending was an ongoing course of conduct which ought properly to be reflected in the overall sentence. The total period will amount to approximately 2 years’ imprisonment, which I consider to be a period that appropriately reflects the total criminality of the offending, notwithstanding the degree of overlap between the 4 offences.

Orders

77․For the above reasons, the Court makes the following orders:

(1)In respect of the offence of obtaining property by deception, contrary to s 326 of the Criminal Code 2002 (ACT) (Code) (CAN 2024/1531), the offender is convicted and sentenced to a term of imprisonment of 23 months, less a discount of 20 per cent, arriving at a sentence of 1 year, 6 months and 12 days, to commence on 28 June 2024 and conclude on 8 January 2026.

(2)In respect of the offence of obtaining property by deception, contrary to s 326 of the Code (CAN 2024/1530), the offender is convicted and sentenced to a term of imprisonment of 18 months, less a discount of 20 per cent, arriving at a sentence of 1 year 2 months and 12 days, to commence on 28 November 2024 and conclude on 8 February 2026.

(3)In respect of the offence of obtaining property by deception, contrary to s 326 of the Code (CAN 2024/1529), the offender is convicted and sentenced to a term of imprisonment of 10 months, less a discount of 20 per cent, arriving at a sentence of 8 months, to commence on 10 October 2025 and conclude on 9 June 2026.

(4)In respect of the offence of obtaining property by deception, contrary to s 326 of the Code (CAN 2024/1528), the offender is convicted and sentenced to a term of imprisonment of 10 months, less a discount of 20 per cent, arriving at a sentence of 8 months, to commence on 25 October 2025 and conclude on 24 June 2026.

(5)The total effective sentence imposed is 1 year, 11 months and 28 days.

(6)Pursuant to s 11 of the Crimes (Sentencing) Act 2005 (ACT) (Sentencing Act), the sentence is to be served by way of an Intensive Correction Order, with the core conditions pursuant to s 42 of the Crimes (Sentence Administration) Act 2005 (ACT) and the following additional condition pursuant to s 11(5)(a) of the Sentencing Act:

(a)That the offender perform 100 hours of community service within 12 months. 

(7)The offender is directed to report to ACT Community Corrections office at Level 1, 249 London Circuit within 48 hours.

I certify that the preceding seventy-seven [77] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Justice McWilliam.

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