Ishaq v The King

[2023] NSWCCA 178

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Ishaq v R [2023] NSWCCA 178

Hearing dates:

12 April 2023

Date of orders:

21 July 2023

Decision date:

21 July 2023

Before:

Adamson JA at [1]
McNaughton J at [2]
Sweeney J at [89]

Decision:

(1) Leave to appeal granted.

(2) Appeal dismissed.

Catchwords:

CRIME – appeal – appeal against sentence – selling stolen goods on eBay using identity of another person – whether sentence imposed was manifestly excessive – Intensive Correction Order – sentence not manifestly excessive – appeal dismissed

Legislation Cited:

Crimes Act 1900 (NSW) ss 192E, 192J, 193B, 527C

Crimes (Sentencing Procedure) Act 1999 (NSW) ss 5, 21A

Criminal Appeal Act 1912 (NSW) s 5

Cases Cited:

Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54

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

House v The King (1936) 55 CLR 499; [1936] HCA 40

Hraiki v R [2019] NSWCCA 140

Hughes v R [2018] NSWCCA 2

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528

Ke v R [2021] NSWCCA 177

Kerr v R [2016] NSWCCA 218

Kresovic v R [2018] NSWCCA 37

Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29

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

R v Pullen [2018] NSWCCA 264; (2018) 275 A Crim R 509

R v Zamagias [2002] NSWCCA 17

Shavali v R [2022] NSWCCA 178

The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48

Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64

Category:

Principal judgment

Parties:

Simon Ishaq (Applicant)
Rex (Respondent)

Representation:

Counsel:
A Moutasallem (Applicant)
M Swift (Respondent)

Solicitors:
Millennium Lawyers (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2019/38306

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

20 September 2021

Before:

Hanley SC DCJ

File Number(s):

2019/38306

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between 7 September 2018 and 5 February 2019, Mr Simon Ishaq (the applicant) sold stolen goods over the Internet via eBay and other online platforms using the identity of another person, reckless as to those goods being stolen. The applicant was arrested on 4 February 2019.

On 19 May 2021, the applicant pleaded guilty to three offences, those being one count of deal with identification information (contrary to s 192J of the Crimes Act 1900 (NSW)) and two counts of recklessly deal with proceeds of crime (contrary to s 193B(3) of the Crimes Act). Two further offences were dealt with on a Form 1.

On 20 September 2021, the applicant was sentenced by Judge Hanley SC (the sentencing judge) at Parramatta District Court. He received an aggregate sentence of 3 years’ imprisonment to be served by way of an Intensive Correction Order (ICO).

The sole ground of appeal was whether the sentence imposed was manifestly excessive.

The Court held (McNaughton J, Adamson JA and Sweeney J agreeing) granting leave to appeal but dismissing the ground of appeal:

(1) The appeal lies from the aggregate sentence, not the indicative sentences. If an indicative sentence is excessive, it does not necessarily follow that the aggregate sentence must be excessive, although the indicative sentences may be a guide: [1] (Adamson JA); [71]-[73] (McNaughton J); [89] (Sweeney J).

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528, applied; Kerr v R [2016] NSWCCA 218, applied.

(2) The indicative sentences for the s 193B(3) Crimes Act offences are not themselves too high, nor are they unreasonable or plainly unjust. The value of the goods sold is only one of a number of factors involved in determining the objective seriousness of the offending. The sentencing judge properly referred to the large volume of property involved, the pattern of behaviour, the way the applicant disguised his involvement from detection by law enforcement authorities, and the statutory aggravating features of the offending: [1] (Adamson JA); [74]-[76] (McNaughton J); [89] (Sweeney J).

(3) The indicative sentence for the s 192J Crimes Act offence appropriately reflected the offending. It was open to the sentencing judge to find that this offence involved a cynical and opportunistic use of a fellow citizen’s identity to facilitate the commission of many sales of goods over a significant period of time for pure financial advantage. Such conduct undermined the integrity of organisations such as eBay and PayPal: [1] (Adamson JA); [77] (McNaughton J); [89] (Sweeney J).

(4) The finding that these offences fell below the mid-range of objective seriousness was open to the sentencing judge. The indicative sentences appropriately reflect this finding: [1] (Adamson JA); [78] (McNaughton J); [89] (Sweeney J).

(5) The aggregate sentence of 3 years shows a marked degree of concurrency between the indicative sentences. Serving this sentence by way of an ICO carries a significant element of leniency. The sentence imposed on the applicant was well within the discretion of the sentencing judge: [1] (Adamson JA); [79]-[86] (McNaughton J); [89] (Sweeney J).

R v Pullen [2018] NSWCCA 264; (2010) 275 A Crim R 509, cited; Shavali v R [2022] NSWCCA 178, cited.

JUDGMENT

1. ADAMSON JA: I agree with McNaughton J.

2. McNAUGHTON J: Between 7 September 2018 and 5 February 2019, Mr Simon Ishaq (“the applicant”) sold stolen goods over the Internet via eBay and other online platforms using the identity of another person, reckless as to those goods being stolen. The applicant was arrested on 4 February 2019. On 19 May 2021, the applicant pleaded guilty to three offences with two further offences being dealt with on a Form 1.

3. On 20 September 2021, the applicant was sentenced by Judge Hanley SC (“the sentencing judge”) at Parramatta District Court. He received an aggregate sentence of 3 years’ imprisonment to be served by way of Intensive Correction Order (“ICO”).

4. The applicant seeks leave, within time, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW), to appeal against the sentence imposed upon him on the ground that it was manifestly excessive.

5. For the reasons provided below, I am of the view that the sentence was not manifestly excessive, and the appeal should be dismissed.

The sentence

6. The applicant pleaded guilty on 19 May 2021 to Counts 1, 3 and 4 on the indictment. In sentencing the applicant in relation to Count 4, the applicant requested the Court take into account two matters on a Form 1.

7. The details of the offences and respective indicative sentences are set out in the table below:

Count	Offence	Maximum Penalty	Indicative Sentence
1	Deal with identification information. Section 192J Crimes Act 1900 (NSW) (“Crimes Act”)	10 years’ imprisonment.	2 year and 3 months’ imprisonment (after 10% discount)
3	Recklessly deal with proceeds of crime. Section 193B(3) Crimes Act.	10 years’ imprisonment.	12 months’ imprisonment (after the 25% discount).
4	Recklessly deal with proceeds of crime. Section 193B(3) Crimes Act.	10 years’ imprisonment.	1 year and 3 months’ imprisonment (after the 25% discount).
Form 1 Attached to Count 4	Goods suspected stolen in/on premises (not motor vehicle). Section 527C Crimes Act.	6 months’ imprisonment or fine of 5 penalty units ($550), or both.	Taken into account in relation to Count 4.
Form 1 (previously Count 2) Attached to Count 4	Recklessly deal with proceeds of crime. Section 193B(3) Crimes Act.	10 years’ imprisonment.	Taken into account in relation to Count 4.

8. On 20 September 2021, the applicant received an aggregate sentence of 3 years’ imprisonment to be served by way of an ICO. The ICO carried with it an order that the applicant perform 200 hours of community service and pay a $5,500 fine. It can be noted that the applicant completed the community service work requirements under the ICO on 4 November 2022.

Factual background

9. The applicant was 30 years old at the time of offending, and 33 years old at the time the sentence was imposed. The offending conduct occurred between 7 September 2018 and 5 February 2019.

10. During the sentence proceedings the Crown tendered an Agreed Statement of Facts. A summary of the factual background based on these agreed facts is now set out.

Count 1 (s 192J Crimes Act)

11. At about 3:30pm on 18 July 2018, the applicant and MD were involved in a motor vehicle accident. The applicant showed MD his driver’s licence, in the name of Simon Ishaq. MD photographed the licence with her phone (but later deleted the image). The applicant gave MD his mobile phone number, which she saved as a contact in her phone under the name of “Simon”.

12. At approximately 7:00pm on 18 July 2018, the applicant sent a text message to MD asking her to send him a picture of the front and back of her licence, and the quote from the mechanic. MD sent, via text message, a photograph of the front of her driver’s licence, showing her full name, date of birth, address, and licence number.

13. On 8 September 2018, an eBay account was created using MD’s name and address details (“the eBay account”). On the same day, a PayPal account was created using MD’s name, date of birth, and address details. The profile name for both accounts was similar to MD’s name.

14. Both the eBay and PayPal accounts were registered using an email address containing MD’s name as well as a mobile phone number which had been activated on 8 September 2018 in the name of MD (using her date of birth, address, and driver’s licence number).

15. The PayPal account was linked to a Bankwest account. This bank account was recorded on PayPal as being in the name of MD, but Bankwest records show that this bank account was held in the name of Mohammed Basheer (DOB: 10 November 1976). During the applicant’s police interview, he admitted to using the bank account.

16. On 4 February 2019, the applicant participated in an Electronically Recorded Interview of a Suspected Person (“ERISP”) with police. During the ERISP, the applicant admitted that he had sole use and control of the eBay account and the attached PayPal account.

17. The applicant initially falsely told police that he had purchased the eBay account on Gumtree for $650 three months earlier. The applicant told police the reason that he purchased eBay accounts in other names was because he had a dispute with eBay seven or eight years ago and was subsequently blocked from holding accounts in his own name. The applicant admitted that he was using the mobile telephone number which was linked to the eBay account.

18. From 10 November 2018 to 3 January 2019, the eBay account was actively used by the applicant. During this two-month period, he sold a total of 231 individual items on eBay for a total of $58,234.77. During this period, the eBay account purchased 19 items and all but one item was purchased for $1.00 or less.

19. In summary, the applicant used MD’s identification information to activate the eBay account, the PayPal account and mobile telephone number. This was done to facilitate the sale of items via eBay in circumstances where the applicant was reckless to this property being stolen.

Count 3 (s 193B(3) Crimes Act)

Zippo products

20. At about 1:30am on 20 November 2018, a break and enter took place at a warehouse in Eastern Creek. Three unidentified offenders removed numerous boxes of products including Zippo lighters. The applicant was not one of these offenders.

21. At 6:04pm on 22 December 2018, the eBay account listed seven Zippo lighters for sale. Between 24 December 2018 and 16 January 2019, five of the lighters were individually purchased for $37 each by eBay users located in New South Wales, Queensland, and Victoria.

22. On 4 February 2019, police lawfully executed a search warrant at the applicant’s home address. During the search police located:

• 103 Zippo lighters in boxes in the third bedroom;

• 2 boxes of Zippo pouches in the third bedroom; and

• 8 Zippo lighters of various styles in the dining room.

23. During the ERISP on 4 February 2019, the applicant said he believed he purchased the Zippo lighters over a year ago and had only sold three or four of them. When the applicant was told the Zippo products he sold online were consistent with those stolen from the Eastern Creek warehouse, he responded, “I sold three Zippo lighters…five. I have pouches as well…I bought like, maybe, 200 and maybe 100 Zippo lighters.”

24. The Crown case was that the Zippo lighters and pouches found in the applicant’s home were a subset of those which had been stolen from the Eastern Creek warehouse on 20 November 2018 and that the applicant used the eBay account to dispose of five of the stolen lighters reckless to the fact that they had been stolen.

Samsung Micro SD Cards

25. Shortly before 5:10am on 21 December 2018, a break and enter occurred at the JB Hi-Fi warehouse in Eastern Creek. Offenders (of whom the applicant was not one) stole:

• 1,000 Samsung 256GB Evo Plus Micro SD cards valued at $60 each (wholesale); and

• 1,000 Samsung 512GB Evo Plus Micro SD cards valued at $180 each (wholesale).

26. At 2:39pm on 22 December 2018, the eBay account listed 100 Samsung 256GB SD cards for sale. The SD cards were advertised for sale at $75 each. Between 22 December 2018 and 18 January 2019, a total of 83 of the SD cards were individually purchased by eBay users for between $60 and $75 each.

27. At 4:49pm on the same day, the eBay account also listed 121 Samsung 512GB SD cards for sale. These SD cards were advertised for sale at $219 each. Between 23 December 2018 and 17 January 2019, a total of 96 of these SD cards were individually purchased by eBay users for between $170 and $219 each.

28. When the applicant’s property was searched by police on 4 February 2019, the following items were found:

• Two Samsung 512GB SD cards and 13 Samsung 256GB SD cards in a box in the main door entry;

• Two boxes containing 10 Samsung 512GB SD cards and one box containing 11 Samsung 512GB SD cards in the second bedroom; and

• Six Samsung SD cards in a box in the dining room.

29. During the ERISP on 4 February 2019, the applicant denied knowing anything about the 2,000 SD cards that were stolen in the break and enter on 21 December 2018. The applicant admitted that he sold approximately 250 Samsung micro SD cards on eBay and that he had about another 250 in his house, however, the applicant told police that he purchased the SD cards through Gumtree “from a guy in Mt Druitt” and that he paid between $7,500 and $10,000 for them.

Involvement with break and enter offenders

30. Four individuals were sentenced for a number of aggravated break and enter offences committed between 11 November 2018 and 4 February 2019, namely: Glenn Jensson, Ibrahim Nacakli, Quinten Ferris, and Uati Palemia.

31. CCTV footage from Mr Jensson’s residence at Rooty Hill recorded the applicant arriving on four separate occasions between 24 and 29 January 2019. On each occasion, the applicant took boxes or bags from the garage and loaded them into his motor vehicle.

32. The applicant provided a false account in relation to a number of matters concerning these offenders. He falsely denied having ever heard of Quinten Ferris; in relation to Glenn Jensson, he said he “thinks” he knew him but only as Glenn, and only from “buying on Gumtree”. He then provided a false version concerning his association with Mr Jensson. As to Mr Nacakli, the applicant initially denied ever having heard of him, then conceded he had seen him before at Mr Jensson’s house, but that he knew him as “Bobby”. He then provided a false account concerning his association with Mr Nacakli.

Search warrant

33. Around 11:40am on 4 February 2019, police executed a search warrant at the applicant’s home.

Count 4 (s 193B(3) Crimes Act)

34. In addition to the Samsung SD cards and Zippo products referred to above, within the third bedroom of the applicant’s home police found one Samsung 55-inch curved television and one Samsung 65-inch Q9 series television.

First Form 1 offence (s 527C Crimes Act)

35. When the applicant’s property was searched by police, they seized a large number of electronic items. These included: headphones, speakers, dashcams, GoPro cameras, drones, mobile phones, an Apple iPad, call centre headsets, Makita tools, Milwaukee power tools and televisions. The Crown estimated the items were valued well over $10,000.

Second Form 1 offence (s 193B(3) Crimes Act)

36. At about 4:00am on 28 November 2018, a break and enter took place at the North Ryde Office Works store. Two unknown offenders stole a total of 30 electronic items. The stolen items included a DJI Phantom Quadcopter drone (valued at $2,176.47) and two Asus 14-inch Core i5 laptops (model number F407UA-EB352T, valued at $799.20 each).

37. On 1 December 2018, the eBay profile listed five electronic items for sale, including the following:

• “Brand New Genuine Sealed DJI phantom 4 pro v2.0 Quadcopter Drone”, which was purchased for $1,900 on 18 December 2018 by a purchaser in Queensland;

• “Brand New Genuine Sealed Asus 14-inch Core i5 Laptop F407UA-EB352T”, which was purchased for $700 on 15 January 2019 by a purchaser in South Australia; and

• “New Genuine Sealed Asus 14-inch Core i5 F407UA-EB352T Laptop”, which was purchased for $799 on 12 December 2018 by a purchaser in Western Australia.

38. During the ERISP on 4 February 2019, the applicant was asked about a stolen DJI Phantom Quadcopter drone and an Asus 14-inch laptop. The applicant eventually conceded that he had sold these items.

39. The Crown case was that these three items had been stolen from Office Works North Ryde on 28 November 2018 and the applicant used the eBay profile to dispose of these items in circumstances where he was reckless to this property being stolen.

The remarks on sentence

40. In the remarks on sentence, the sentencing judge stated he would take into account the maximum penalties, his assessment of the objective seriousness of the offending, together with any factors relevant to the applicant.

41. After the sentencing judge set out the facts, his Honour set out the account given by the applicant to police to the effect that he purchased most items on eBay and was involved in buying items and selling them quickly for a profit. He gave details in relation to the cost of the stock in his home and how he sold these items through eBay, Facebook marketplace and sometimes the Fairfield markets. He said he ran this business on the side of his full-time job as a Qantas aircraft engineer. It started as a hobby.

42. He would buy cheap items and sell them back. He did not keep any accounts or financial records. He claimed he knew nothing about the break and enter offences. He stated he always rang the Apple store to check the serial numbers to make sure the items he bought were not stolen. When he bought items, he claimed he asked the seller where they got them from. He denied that he had a gambling problem but admitted he did have one when he originally came to Australia.

Objective seriousness

43. The sentencing judge considered a number of factors to be relevant to the objective seriousness of the offending, those being:

1. In relation to Count 1, that the applicant took advantage of MD in a cynical manner following the accident, and that the way he took advantage readily indicated that the applicant was willing to take advantage of any opportunity to misuse another’s identity.

2. The applicant took steps to protect himself from detection by authorities.

3. Dealing with eBay and PayPal in this way (setting up false accounts) impacted upon their reputation. The sentencing judge observed those organisations played a very significant role in the day-to-day purchase of items by members of the community. The sentencing judge considered:

“The integrity of those organisations is undermined when people such as this man set up false accounts, utilising real individuals who […] he had come into possession of their identification material maybe in an unplanned manner but one which indicates a degree and a willingness to immediately use it to his dishonest advantage.”

4. The offences on the indictment and the Form 1 demonstrated the behaviour of the applicant dealing with a large volume of property which was seized from his premises, some of which was sold via the institutions referred to and in a manner that demonstrated a clear recklessness as to making any proper inquiry as to the nature of the goods involved.

5. The offences were “interlinked” in respect of a form of business that he was undertaking at the time. In utilising popular platforms such as eBay and PayPal to dispose of stolen property, it demonstrated a pattern of behaviour by the applicant to deal with stolen property through whatever means in a manner which disguised his involvement from detection by law enforcement authorities (his Honour noting the plea was to reckless dealing, and not knowledge of the fact that the property was stolen).

6. The offences did not lie at the low range of objective seriousness but the sentencing judge was “prepared to assess each one of them as below the mid-range of objective seriousness”.

7. The offending was aggravated by two factors:

1. it involved the commission of a series of criminal acts; and

2. it was committed for financial gain.

44. As to factors ameliorating the sentence, the sentencing judge noted:

1. The applicant had no criminal history.

2. The applicant was entitled to a 10% discount for Count 1 and a 25% discount for Counts 3 and 4 for his plea of guilty.

3. Some degree of remorse was inherent in his plea of guilty, and his plea had a considerable degree of utilitarian benefit in that victims and witnesses did not need to be called to give evidence at a jury trial. The sentencing judge was further prepared to accept that by the date of the sentencing hearing the applicant had developed a degree of remorse and acceptance of responsibility which mitigated the sentence to some degree.

Subjective factors

45. The applicant was born in 1988 in Iraq and had been in Australia for about 14 years. He resided with his parents, aged 60 and 67 years old, who he cared for as they were disabled. He paid their rent. His brother and sister both resided overseas. He had recently tested positive for COVID-19, although appeared to have recovered. He had qualifications which allowed him to be employed as an aircraft maintenance engineer with Qantas since 2009. He spent four years studying to obtain his qualifications and he was required to undergo a New South Wales police check every two years. He was confident that he would lose his employment because of these convictions.

46. The sentencing judge noted that the applicant asked the Court to accept that apart from these offences he was a community minded person who donated to charity and also sent money overseas to family on a weekly basis. It had been a “true eye-opener” for the applicant and he had been attending counselling.

47. Further, he had:

“pro-social values which are not consistent with the commission of these offences. The fact he is a person of prior good character allows me to make an assessment that in respect of his prospects of rehabilitation and the likelihood of reoffending, those prospects are good, and also that is consistent with the finding of the author of the Sentencing Assessment Report who assesses him at a low risk of reoffending.”

48. The sentencing judge found that if full time imprisonment was imposed the applicant would likely suffer hardship due to the COVID-19 pandemic.

49. The sentencing judge took into account in the general assessment of subjective factors that both the applicant’s parents were disabled and relied upon him to pay their rent and care for them generally.

50. By reason of the applicant’s convictions, the sentencing judge found he would suffer some extra-curial punishment in the form of the loss of his employment from his current employer and within the aviation industry.

Sentencing principles

51. In making the finding that the s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) threshold had been crossed and no penalty other than imprisonment was appropriate, the sentencing judge noted that offences involving theft of peoples’ identities to set up false accounts and mislead organisations such as PayPal and eBay were becoming more prevalent. The sentencing judge stated that not only did such behaviour undermine confidence in these organisations and must have a significant impact upon their financial capacity to continue but was also “a callous use of the genuine owner’[s] identity […]. There is a need for general deterrence to dissuade other like-minded [offenders] from committing such offences.” These factors, together with the period of time over which the offences were committed, the difficulty in detecting this type of offending, and the objective seriousness of the offending behaviour were such that the sentencing judge found that the s 5 threshold was crossed.

52. The sentencing judge also found that there needed to be some degree of specific deterrence to dissuade the applicant from further offending, noting that his motive to offend was financial. His Honour stated:

“Not only should it be held out to him that custodial sentences are appropriate but financial penalties will impact upon any benefits that he might have received financially for his involvement in this type of offending.”

53. Although not young, the sentencing judge was satisfied that the applicant was still entitled to have some emphasis placed upon rehabilitation, noting he had demonstrated that he had taken some steps already.

54. The sentencing judge found he was not a danger to the community, but his behaviour should be denounced.

55. In assessing totality, whilst the offences were distinct in some respects, the sentencing judge found that the offending involved “an overall period of criminality with one object and purpose being to obtain property by turning a blind eye, in effect, […] to sell recklessly items […] whether they were legitimately obtained or not”. This meant that it was appropriate to afford a significant degree of concurrency, with some minimal accumulation to reflect the individual sentences.

56. As to the Form 1 matters, the sentencing judge found that they required some degree of elevation in the sentence for the principal offence, given the significant amount of property involved.

The appeal before this Court

The applicant’s submissions

57. The applicant submitted that the sentencing judge’s findings on both the objective seriousness of the offending and the subjective circumstances of the applicant were not reconcilable with the 3 year custodial sentence imposed upon the applicant. The fine imposed upon the applicant was not the subject of any submissions on appeal.

58. The applicant noted that:

1. In relation to Count 1, the eBay account was used for transactions totalling $58,234.77. The Crown submissions on sentence included: “By creating these accounts in the name of another the [applicant] was able to facilitate the sale of items which included the reckless disposal of stolen property.” In other words, the Crown conceded that the account was not used exclusively for the sale of stolen items.

2. The value of the items the subject of Count 3 was $28,446.

3. The value of the items the subject of Count 4 was less than $10,000. The total value of the items subject to the Form 1 counts was well over $10,000 for the s 527C offence and $4,000 for the s 193B(3) offence.

59. The applicant conceded “the imposition of an ICO is a more lenient penalty than the imposition of a full-time term of imprisonment”, however, also contended this did not prevent an applicant from appealing the severity of their sentence.

60. It was contended that when imposing a custodial sentence, such as an ICO, the sentencing court must follow a three step process:

1. The court must be satisfied that no penalty other than imprisonment is appropriate;

2. The court must then consider the length of the term of imprisonment without regard to how it is to be served (R v Zamagias [2002] NSWCCA 17 at [26]); and

3. Whether an alternative to full time custody should be imposed.

61. The applicant submitted that the sentencing judge erred in the second step, that being the consideration of the length of the term of imprisonment.

62. The applicant also pointed to two decisions to assist in demonstrating the indicative sentence for Counts 3 and 4 were too high: Ke v R [2021] NSWCCA 177 (“Ke”) and Hraiki v R [2019] NSWCCA 140 (“Hraiki”), as well as sentencing statistics.

The Crown’s submissions

63. The Crown contended that where an aggregate sentence has been imposed, the appeal lies from the aggregate sentence, not the indicative sentence.

64. The Crown further submitted that whilst the indicative sentence of 2 years and 3 months for Count 1 (the s 192J charge) was not lenient, the applicant had not demonstrated that the indicative sentence was outside the range. It was further submitted that the indicative sentences for Counts 3 and 4 (the s 193B(3) charges) were not outside the statistical range, and were consistent with the objective seriousness attributed to them by the sentencing judge.

65. The Crown contended that neither Ke nor Hraiki assisted the applicant’s argument.

66. The Crown submitted that the applicant’s argument based on these two decisions was flawed because the value of the money or items recklessly dealt with was only one of the factors involved in the assessment of objective seriousness and forms only part of the instinctive synthesis in determining a sentence.

67. As to the statistics relied upon by the applicant, the Crown contended that they did not show that the sentence in the present matter was outside the general range. The statistics in relation to s 193B(3) Crimes Act matters dealt with in the NSW Higher Courts between 24 September 2018 and 30 June 2022 showed 41.5% were sentences of full-time custody, whilst 34% received an ICO – showing that 75.5% received a term of imprisonment, however served. Of those who received full-time custody, 27.3% received 24 months and for those who received an ICO, 27.8% received a 24 month sentence.

68. As to those sentenced in the Local Court between October 2018 to September 2022, 13.3% were given full-time custody, with 45% receiving a sentence of greater than 12 months. 30.7% were given an ICO with 43.5% receiving a sentence of greater than 12 months.

69. The Crown noted there were very few comparative sentences for s 192J offences with only two recorded in the NSW Higher Courts – one of which involved a sentence of 6 years and 6 months, and the other 5 years’ imprisonment. There did not appear to be any sentence appeals to this Court which have focussed on s 192J.

Consideration

70. The principles concerning manifest excess were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ):

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]:

(1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases;

(2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error;

(3) it is not to the point that this Court might have exercised the sentencing discretion differently;

(4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and

(5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

71. A substantial part of the applicant’s attempt to make good his ground of appeal that the aggregate sentence was manifestly excessive was his argument that the indicative sentences for the s 193B(3) offences were too high. This appeared largely to be based on a comparison between the total value of the items in the comparative cases compared to the “modest” amounts involved in the offending of the applicant.

72. In my view, this argument cannot be accepted.

73. First, where an aggregate sentence has been imposed, the appeal lies from the aggregate sentence, not the indicative sentences: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]. As Bathurst CJ observed in Kerr v R [2016] NSWCCA 218 at [114] even if an indicative sentence is excessive, it does not necessarily follow that the aggregate sentence must be excessive, although the indicative sentences may be a guide.

74. In any event, I am of the view that the indicative sentences for the s 193B(3) offences are not themselves “too high”, nor are they unreasonable or plainly unjust. An offence contrary to s 193B(3) (involving recklessness) carries a maximum penalty of 10 years’ imprisonment (as compared to a maximum penalty of 20 years for an offence contrary to s 193B(2), an offence requiring knowledge). The offending in this case involved a high degree of recklessness. This can be gleaned from the applicant’s accounts (including false accounts) of his connection to those involved with stealing some of the goods as set out in the agreed facts (referred to above at [30]-[32]), as well as the short period of time between the stealing of some of the items and when they were first listed for sale by the applicant on eBay.

75. Second, contrary to the submission of the applicant, the value of the goods sold is not necessarily the weightiest factor in determining the criminality of the offending. As the Crown contended, the value of the money or items involved in the offending is only one of a number of factors involved in determining the objective seriousness. The criminality must be viewed as a whole. The sentencing judge properly referred to the large volume of property involved, the pattern of behaviour, and the way in which the applicant “disguise[d] his involvement from […] detection by law [enforcement] authorities”. It can be noted that the selling of the stolen goods not only involved the use of an eBay and PayPal account using false identification, but also a bank account linked to the PayPal account in a further false name.

76. Further, the sentencing judge was correct in accepting that the offences were aggravated in that they involved a series of criminal acts (s 21A(2)(m) Crimes (Sentencing Procedure) Act), and also that the offending was committed for financial gain (s 21A(2)(o) Crimes (Sentencing Procedure) Act).

77. As to the s 192J offence, it was open to the sentencing judge to find that this involved a cynical and opportunistic use of a fellow citizen’s identity to facilitate the commission of many sales of goods over a significant period of time for pure financial advantage. That such conduct undermined the integrity of organisations such as eBay and PayPal, which now play a very significant role in the day-to-day dealings of the purchase of items by members of the community, is not contested.

78. In light of these factors, the finding by the sentencing judge that the offences did not lie at the low range of objective seriousness but below the mid-range of objective seriousness was well open to his Honour. The indicative sentences appropriately reflected that finding.

79. As to the aggregate sentence of 3 years, it can be observed that there is a marked degree of concurrency between the indicative sentences. This course was appropriate in light of the interlinked nature of the offending.

80. As to the sentence being served by way of ICO, it is uncontroversial that the imposition of an ICO carries with it “a significant element of leniency”: R v Pullen [2018] NSWCCA 264; (2010) 275 A Crim R 509 at [53] (Harrison J, with whom Johnson and Schmidt JJ agreed); Shavali v R [2022] NSWCCA 178 at [64] (Wilson J, with whom Cavanagh J agreed).

81. Further, the two comparative sentences relied upon by the applicant do not assist the applicant.

82. The applicant in Ke had pleaded guilty to one count of recklessly dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act. The substance of the plea was that the applicant sold baby formula which had been stolen, in circumstances where she was reckless as to whether it had been stolen. She was sentenced by Herbert DCJ to a term of imprisonment of 2 years and 3 months with a non-parole period of 18 months. Her partner had pleaded guilty to the same offence. The applicant Ke was found to have liaised with those responsible for the theft of the baby formula; engaged in multiple transactions, in the course of which she received quantities of the stolen baby formula from at least six separate suppliers; at least on one occasion chose an ill-frequented area to collect the formula; was responsible for on-selling the formula; engaged in the conduct for about nine months and caused $394,000 to be deposited into accounts controlled by the co-offender. Like this applicant, the applicant Ke had no prior criminal record, and could point to charitable and community work she had completed. Whilst the applicant Ke’s sentence was reduced on appeal, the only basis on which the appeal succeeded was a failure to afford the appropriate discount (25% rather than 10%) to her for her earlier indication of a plea to the charge for which she was ultimately sentenced. The reduction was not founded on the basis of manifest excess per se. On appeal the sentence was reduced to imprisonment of 1 year and 10 months with a non-parole period of 14 months and recognition was afforded to the “not insignificant” subjective case of the applicant, including her mental health condition.

83. Hraiki was argued in the Court of Criminal Appeal only on the basis that the sentencing discretion miscarried because of an inadequate discount for assistance. The applicant abandoned a ground based on manifest excess. The applicant in Hraiki was sentenced for four offences (three counts of contravening s 193B(3) and one count of contravening s 192E(1)(b) (dishonestly obtain financial advantage by deception)). The s 192E(1)(b) offence involved assisting another person with false documents to obtain a loan by receiving money for the other person in a trust account and allowing the deposit of fraudulent cheques into a company account for which he had legal responsibility. The applicant had no criminal convictions. The sentencing judge had specified individual sentences rather than an aggregate sentence. For the offences against s 193B(3) of the Crimes Act, he was sentenced to 1 year and 5 months for an amount involving over $300,000, 1 year and 9 months for an amount involving over $170,000, and 1 year and 9 months for an amount just under $100,000. For the dishonestly obtain financial advantage by deception, namely an investment loan of $920,000 (s 192E(1)(b)), he was sentenced to 2 years and 3 months imprisonment (which included taking into account matters on a Form 1). The total effective sentence, affirmed on appeal, was 2 years and 9 months imprisonment with a non-parole period of 1 year and 5 months.

84. Not only are these cases to be distinguished on matters which set them apart from this case, but such a small selection of cases cannot establish that the sentence imposed in this case was unreasonable or plainly unjust: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [25]. Further, as stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]:

“In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: ‘Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts’. But the range of sentences that have been imposed in the past does not fix ‘the boundaries within which future judges must, or even ought, to sentence’. Past sentences ‘are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence’.  (Emphasis added.) When considering past sentences, ‘it is only by examination of the whole of the circumstances that have given rise to the sentence that “unifying principles” may be discerned’.”

(Footnotes omitted.)

85. I am further of the view that the statistics do not assist the applicant.

86. In summary, in light of the maximum penalties, the number of offences (both on the indictment and on the Form 1), the objective seriousness of the offending, the importance of general deterrence and denunciation together with the inherent leniency built into an ICO, the sentence imposed on the applicant was well within the discretion of the sentencing judge.

87. The ground of appeal is not made out.

88. The orders I propose are:

1. Leave to appeal granted.

2. Appeal dismissed.

89. SWEENEY J: I agree with the orders and reasons of McNaughton J.

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Decision last updated: 21 July 2023