Islam v The Queen

[2020] NSWCCA 236

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Islam v R [2020] NSWCCA 236

Hearing dates:

14 July 2020

Date of orders:

21 September 2020

Decision date:

21 September 2020

Before:

Ward CJ in Eq at [1];
Wilson J at [2];
Ierace J at [73]

Decision:

(1)    Leave to appeal granted;

(2)    Appeal dismissed.

Catchwords:

SENTENCE – application for leave to appeal against sentence – offences of participating in a criminal group and dealing with identification information – pleas of guilty – sentence imposed partially accumulated on sentence previously imposed – single ground of appeal advanced – whether finding of special circumstances reflected by sentence imposed – relevance of earlier sentence – principle of totality

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes (Sentencing Procedure) Act 1999 (NSW)

Criminal Appeal Act 1912 (NSW)

Cases Cited:

Calhoun (a pseudonym) v R [2018] NSWCCA 150

Caristo v R [2011] NSWCCA 7

Hardey v R [2019] NSWCCA 310

Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15

Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70

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

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Islam; R v Ahmed [2019] NSWDC 546

R v Rossi (1988) 142 LSJS 451

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534

Sonter v R [2018] NSWCCA 228

Stoeski v R [2014] NSWCCA 161

Tuivaga v R [2015] NSWCCA 145

Category:

Principal judgment

Parties:

Tariqul Islam (Applicant)
The Crown (Respondent)

Representation:

Counsel:
D Roff (Applicant)
D Patch (Respondent)

Solicitors:
Legal Aid NSW (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s):

2018/00027691

Publication restriction:

Nil

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 July 2019

Before:

Williams SC DCJ

File Number(s):

2018/00027691

Judgment

1. WARD CJ in Eq: I agree with Wilson J.

2. WILSON J: The applicant, Tariqul Islam, seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed upon him on 15 July 2019 by his Honour Judge Williams SC sitting in the District Court of New South Wales. His complaint is that, when regard is had to the term and structure of the total effective sentence represented by the combination of the sentence that the applicant was already serving, and the sentence imposed in July 2019, the finding of special circumstances made by the sentencing court is not properly reflected, and there is error.

The Proceedings in the District Court

3. The applicant entered a plea of guilty in the Local Court and was committed for sentence with respect to the following offences:

1. An offence contrary to s 93T(1A) of the Crimes Act 1900 (NSW) that the applicant knowingly participated in a criminal group by directing the activities of the group, knowing that his participation contributed to criminal activity. This offence carries a maximum sentence of 10 years imprisonment; and

2. An offence contrary to s 192J of the same Act that the applicant dealt with identification information, being credit card information for over 550 persons, intending to commit fraud. This offence similarly carries a maximum sentence of 10 years imprisonment.

4. There were a number of co-offenders, but parity is not an issue in these proceedings and it is not necessary to consider the sentences imposed on those individuals.

The Crown Case

5. The Crown tendered a statement of agreed facts of the circumstances of the commission of the offences.

6. The applicant was the “ringleader” of a group of men, all taxi drivers, who were involved in a scheme to “skim” the data from credit cards of unknowing taxi passengers, thereafter producing a clone of the victim’s credit card which could be used to withdraw cash or purchase goods. Between late August 2017 and late January 2018, the applicant directed the activities of the four other men who were involved, and many hundreds of thousands of dollars were fraudulently obtained by them.

7. The applicant managed the scheme, recruiting taxi drivers to participate, instructing them in the use of a “skimming device”, cloning fraudulent credit cards, and subsequently directing the activities of his co-offenders.

8. The applicant had possession and control of five devices known as “Ghost Terminals”. Ostensibly portable EFTPOS terminals, participating taxi drivers used the devices to collect a fare from a passenger who had used the taxi driven by the particular member of the group. In fact, the terminal did not process a charge on the passenger’s credit card in payment for the journey; instead, it “skimmed” or recorded the data contained on the magnetic strip on the card, which included the personal identification number, or “PIN”, necessary to access cash machines.

9. The applicant’s practice was to distribute the Ghost Terminals to his four co-offenders, who used them to record the credit card details of passengers of the taxi service. The men would then meet at a pre-arranged location and return the terminals to the applicant. The applicant paid the drivers a fee for each card “skimmed”. The applicant used the data recorded by the drivers on the terminals to clone credit cards using the skimmed or stolen data. For all practical purposes, the cloned card functioned in the same way as the original credit card it copied, and the cards were then able to be used to withdraw cash or purchase goods.

10. Electronic surveillance by police officers of the applicant recorded him instructing other group members in the use of cloned cards – which he provided to them – in automatic teller machines (“ATM”) to withdraw sums of money from the accounts of the victims of the group. The applicant was careful to use different ATMs for each group of transactions, and to instruct his co-offenders to make modest withdrawals of $500 or less to avoid exceeding any daily withdrawal limit. He also provided information as to the conduct of his co-offenders, to assist them to avoid “looking suspicious”.

11. The applicant was followed by police officers on a number of occasions as he and a co-offender drove from place to place, using multiple cards in ATMs located around Sydney to withdraw sums of money. At the end of any particular day, the applicant counted the money stolen in the various transactions and paid the relevant co-offender a share of the fraudulent takings. He was observed to direct these outings on multiple occasions. This scheme was reflected by the s 93T(1A) offence.

12. The drivers were progressively arrested by police until, on 26 January 2018, the applicant was arrested at his home in Marrickville. His home was searched. Police officers found a sum of cash on the applicant’s person, and a laptop computer which contained card cloning software that could be used to clone credit cards. The laptop also held the credit card information of 557 specific individuals, of which 98 sets of information had already been used to clone cards and make fraudulent cash withdrawals. The information was held by the applicant to facilitate the commission of further fraudulent activity (the s 192J offence).

13. Electronic surveillance during the course of the investigation into the applicant’s conduct established that he had been stealing and cloning credit card data for the previous three years, and had fraudulently obtained between $250,000 and $300,000.

14. Throughout the period that the applicant was directing these fraudulent activities, he was at liberty subject to conditional bail granted to him by the Supreme Court, he having been earlier charged with 19 counts of obtaining a financial advantage by deception, contrary to s 192E(2)(b) of the Crimes Act. He was in fact awaiting the completion of sentence proceedings with an intensive correction order (“ICO”) in contemplation when he was charged afresh.

15. The matters were not able to be joined and dealt with together because the applicant did not enter pleas of guilty to the second set of charges until well after the finalisation of the first set.

16. The applicant’s criminal history as it was before the sentencing court reveals that the applicant was convicted before the District Court of 11 of the outstanding sentence matters, with the balance of 8 offences taken into account pursuant to s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (the “CSP Act”). On 20 April 2018, an aggregate sentence of 2 years imprisonment was imposed upon him, to date from 19 December 2017 and expiring on 18 December 2019. A non-parole period (“NPP”) of 15 months imprisonment was specified, which concluded on 18 March 2019. The sentencing judge, his Honour Acting Judge Armitage, made a finding of special circumstances pursuant to s 44(2) of the CSP Act in the applicant’s favour, reducing the NPP by 3 months on the ordinary statutory ratio that would otherwise have seen the applicant serve a NPP of 18 months. Parole was made subject to the supervision of the Community Corrections Service, with a direction that the applicant accept drug rehabilitation and psychological services.

17. The only other matter in the applicant’s criminal history was a conviction for common assault in December 2016, which was dealt with by way of a fine.

18. Information relating to the 2018 proceedings was provided to the sentencing court in April 2019. The Crown tendered the indictment containing the 11 counts contrary to s 192E(1)(b) to which the applicant had pleaded guilty, the Form One document with details of the 8 further offences that the applicant acknowledged having committed and asked to have taken into account on sentence for those matters on indictment, an agreed Statement of Facts, a Pre-Sentence report (“PSR”) and an ICO Assessment Report.

19. The facts of the earlier offences were broadly similar to those before his Honour Judge Williams SC. They came to light when police officers in Picton observed the applicant and another man parked in suspicious circumstances in the township late at night on 29 May 2016. The applicant’s companion was found to be the subject of an arrest warrant, and to be in Australia unlawfully. A search of the car in which the men had been seated located the sum of $11,900 in cash, secured by a band; numerous blank and marked white credit cards; documentary records of various bank accounts including cardholder names and PINS for each; ATM receipts evidencing withdrawals and attempted withdrawals made in Helensburgh and Picton from multiple accounts held at varying financial institutions; and some smaller amounts of money, with the largest single amount being a sum of $1590 in cash. Stolen financial data was found on the white credit cards when they were later forensically examined. It was also determined that 20 of the cards seized had been used in Picton in a 63 minute period on the night of 29 May 2016 to steal $9,180 in cash, with another $570 stolen in fraudulent ATM withdrawals at Helensburgh earlier that evening.

20. The applicant’s fingerprints and DNA linked to him were later found on a number of the items from the car. The applicant, when interviewed by police, denied any knowledge of the counterfeit credit cards or the cash found, and denied attending any ATM.

21. The PSR that was before the District Court when the applicant was sentenced in 2018 for these 2016 offences reported that the applicant was a Bangladeshi national who came to Australia in 2008, with his family intending to pay for his tertiary education in this country. When his family in Bangladesh experienced financial strain and could no longer support his education, the applicant ceased his studies and took on various unskilled jobs. The applicant told the author of the PSR that he had been “propositioned” by his co-offender (an Indian national who was deported prior to sentence) and became involved without being aware of his offending until it had begun. His only reason for participating was the financial gain his offences gave him. He expressed regret at the loss to the victims of the offences, but “sought to minimise his responsibility” for his crimes.

22. (As it turned out, rather optimistically) the author assessed the applicant as posing a low risk of re-offending.

23. An ICO Assessment Report similarly observed that the applicant sought to minimise his responsibility for his crimes, although considered him to have made some positive changes by securing employment, and expressing an intention to give up what had been his acknowledged daily use of cannabis. He was regarded as suitable for an ICO.

24. The only other evidence in the Crown case in the 2019 proceedings related to co-offenders, and it has no present relevance.

The Applicant’s Case

25. The applicant did not give evidence, instead penning a letter to the sentencing court in which he expressed his “sorrow and regret” for offences he claimed had been committed “out of ignorance and failure to recognise the rightful way of living”. He referred to the damage he had done to people who earned through “sacrifice and honest hard work” the money he stole, and regretted the harm caused to his mother and family. He besought the sentencing court:

“I humbly implore you, your Honour to accept my honest apology, perhaps tender justice with mercy, for I shall not offend again.”

26. Since he did not give evidence, the applicant could not be cross-examined as to the veracity of his assertions.

27. The applicant also relied upon a psychological assessment and testimonials from friends.

28. The psychological report by Ms Dombrowski dated 26 March 2019 was prepared for use during sentence proceedings at the request of the applicant’s lawyers. Ms Dombrowski saw the applicant via an audio-visual link for a period of one hour.

29. On presentation the applicant appeared his age, being 31 years. He was polite, and seemed to be intelligent, insightful, and aware. He told Ms Dombrowski that, at the time he managed the credit card skimming operation, he was employed in a fast food restaurant, gambling heavily, and using both methamphetamines and prescription drugs (off label). He acknowledged being subject to bail at the time, telling Ms Dombrowski that his co-offenders had raised the money required as a security on bail so that he might be released. He said that after being granted bail “he felt obligated to continue his involvement with the criminal syndicate” and to take on a more senior role. The applicant said the money gained through his crimes also helped fund his gambling and drug use.

30. The applicant reported a stable upbringing in Bangladesh where his family owned a manufacturing business and were affluent. He was close to his mother; his father was strict. Retrospectively, he characterised his father’s strictness as abuse. He was schooled in his own country between the ages of 6 and 20 years, but was not academic and did no more than pass most subjects. He claimed to have become involved in political activism and fallen out with his father as a result.

31. He said he travelled to Australia in 2006 [having told Armitage A/DCJ that he arrived here in 2008] and took on a foundation course as a possible means of gaining entry to university. The applicant did not complete his foundation studies, and never entered university. He worked in unskilled jobs to pay his way. He lived a “partying” lifestyle and formed a relationship with a woman who used drugs. He too began to use drugs. He and his former partner have a child, but he has no contact with her or the child. The applicant described entering a new supportive relationship with a woman with no drug involvement; he explained a conviction she has for possessing a prohibited drug as relating to drugs that were actually his. He described feeling depressed in 2016, but his mood lifting on ceasing to use methamphetamine, and after having been prescribed an anti-depressant in custody.

32. On the basis of the information the applicant gave her, Ms Dombrowski observed that the applicant does not appear to be “inherently anti-social”, although she did note the planned and calculated nature of his crimes, evidencing a disregard for the law. She thought his offending behaviour was mainly attributable to “involvement with unscrupulous peers”, substance abuse, and the compromise to judgment frequently associated with such abuse.

33. The applicant’s partner told the sentencing court that the applicant was a “contributing member of society” who is a practicing Muslim, plays cricket, and helps others. Other friends also spoke highly of the applicant and blamed drug use for his poor choices. The Chaplain at the gaol in which the applicant was held pending sentence said he regularly participated in rehabilitation programmes and was remorseful for his crimes. A number of certificates evidenced the applicant’s participation in vocational and rehabilitative programmes whilst in custody.

The Submissions on Sentence

34. The parties provided both oral and written submissions on sentence in the District Court. Both submitted that the applicant should receive a discount on the sentence that would otherwise be imposed of 25% to reflect the utilitarian value of the early plea of guilty.

35. The Crown submitted that the applicant had been the director of the credit card skimming operation, and “maintained full control of the logistics of the operation”. It was an operation involving significant planning and forethought, as well as considerable technological skill, and the applicant involved himself in it for financial gain. The Crown noted that the crimes had been committed by the applicant when he was at liberty subject to bail for the same type of conduct. Of the sentence that the applicant was, by the time of sentencing in 2019, already serving, the Crown submitted that there should be “a degree of accumulation”.

36. The applicant submitted in writing that, although the agreed fact was that the applicant had been the “ringleader” of the credit card skimming operation, it had not been proved that he was “the architect” behind the organisation, or that he personally profited by $250,000-$300,000. Of his existing sentence, the applicant submitted that he was entitled to a credit of 32 days on his sentence, by way of backdate, to reflect time spent in custody solely referable to the matters for sentence, and not to the 2018 sentence. The court was referred to the principle of totality, and it was argued that, the applicant having been “deprived” of the opportunity to have both sets of matters dealt with together, the sentence imposed upon him should run “concurrently with a proportion of the sentence imposed for the first set of offences”. It was submitted that a finding of special circumstances should be made due to the fact that the applicant was serving his first period of custody, he had good prospects of rehabilitation, and he needed a longer period of supervision on release (it being submitted that the sentencing court could not have regard to the fact that the applicant would be deported on release to parole).

37. In oral submissions, counsel for the applicant distanced himself from the written submissions filed for the applicant (which he had not prepared) and told the sentencing judge that the commencement date of the sentence to be imposed was a discretionary matter for the court. When his Honour sought to have the parties provide him with “an agreed date for commencement” rather than the facts that would permit the court to make the determination for itself, counsel for the applicant suggested 18 November 2018, that is, the date four months prior to the expiration of the NPP imposed by Delaney A/DCJ in 2018. The matter proceeded on the basis that a commencement date of 18 November 2018 was the most appropriate and fairest date.

The Remarks of the Sentencing Judge

38. In his ex tempore sentencing judgment, R v Islam; R v Ahmed [2019] NSWDC 546, his Honour observed that it was “common ground” that there should be a 25% discount on the sentence to be imposed:

“which should commence on 18 November 2018, bearing in mind questions of totality and the fact that he has served a sentence for other fraud offences imposed by Armitage ADCJ on 20 April 2018”.

39. His Honour found the facts of the crimes to be as agreed between the parties, and he was prepared to accept the untested accounts the applicant had provided to others as “a reasonable basis upon which to proceed to sentence”. His Honour set out the applicant’s background and circumstances derived from his accounts to the psychologist and others.

40. The sentencing court described the offences as cunning and deliberate, and concluded that they fell within the mid-range of objective gravity. His Honour accepted that the applicant was remorseful and had “reasonable” prospects of rehabilitation. He made a finding of special circumstances, observing, at [28]:

“There is a basis for a finding of special circumstances which I will make in the light of the fact that he requires counselling and supervision for an extended period upon his ultimate release, although the practical likelihood of that may be illusory given that it appears that he may be deported at the conclusion of any non-parole period, but that of course, is not a matter that I can take into account.”

41. An aggregate sentence of 3 years and 10 months was imposed, dating from 18 November 2018, the date suggested by the applicant, and expiring on 17 September 2022. A NPP of 2 years and 8 months was fixed, expiring on 17 July 2021.

42. The indicative sentences were noted to be a sentence of 3 years for the s 93T(1A) offence and 22 months for the s 192J offence.

The Application to this Court

43. The applicant complains that:

“The learned sentencing Judge erred in imposing a sentence that failed to reflect a finding of special circumstances when regard is had to the total effective sentence to be served by the Applicant”.

44. He submits:

“During proceedings, Defence appear to suggest the commencement date of 18 November [2018] that is then agreed to by the Crown. Counsel for the offender seems to suggest that this was the date on which the prior sentence hearing was conducted, however given the earlier sentence occurred on 20 April 2018 this was incorrect”.

45. It is noted that the overall sentence imposed upon the applicant, adding together the two sentences imposed respectively in 2018 and 2019, was one of 4 years and 9 months with an overall NPP of 3 years and 7 [actually 8] months. The overall NPP is 75.37% of the overall sentence; it is argued that such a ratio does not reflect the finding of special circumstances and it may be concluded that there was miscalculation or inadvertent error by the sentencing judge.

46. The Crown submits that the sentencing court was alive to the issue of totality, and to the details of the earlier offending and sentencing. During the proceedings, and in the remarks on sentence, his Honour adverted to the considerations relevant to compliance with the totality principle, and allowed for a parole period which represented a considerable increase on that allowed by Armitage A/DCJ. The commencement date was not mistaken or arbitrary; it reflected a period of four months that had been served referable to the matter before the sentencing court, and allowed for the sentence imposed to run concurrently with the last four months of the NPP of the earlier sentence. The sentence imposed both reflected the criminality of the offences, and allowed for an adequate period of parole.

Determination

47. That “total effective sentence” commences on 19 December 2017, the commencement date of the sentence imposed in 2018 by Armitage A/DCJ, and expires on 17 September 2022; it is a term of 4 years and 9 months. The earliest date of release to parole is 17 July 2021; it is a minimum period of imprisonment of 3 years and 8 months, giving an effective additional term of 13 months. The percentage ratio between the effective NPP and the effective head sentence is one of 75.37%, that is, 0.37% above the statutory ratio of 75%.

48. The applicant contends that this ratio demonstrates a failure to reflect the finding of special circumstances, and came about through error in the selection by his Honour of the commencement date of sentence, 18 November 2018. The applicant, somewhat disingenuously, notes that “Defence appear to suggest” the date of 18 November 2018 as the appropriate date. He later submits that neither the Crown nor the applicant provided proper assistance to the sentencing court on the issue of the commencement date of sentence.

49. It is useful to extract what was said on this aspect of the matter, since the transcript readily establishes that the commencement date selected by the sentencing court was not a date the applicant “appeared” to suggest, it was the date he clearly nominated as the appropriate starting date for the sentence to be imposed. The date the applicant asked his Honour to select was calculated by reference to the period that the applicant had spent in custody after the expiration of the NPP from the sentence imposed by Armitage A/DCJ, when he would otherwise have been released to parole, being a period of about 4 months. Ultimately, the Crown accepted that 18 November 2018 was an appropriate date for the commencement of sentence.

“HIS HONOUR: What's your submission as to when the starting date should be?

AINSWORTH: It's entirely discretionary on your Honour's part.

HIS HONOUR: Yes, what's the range?

AINSWORTH: As to how far back into that period.

HIS HONOUR: What's the range?

AINSWORTH: Well you've got 15 months on the bottom, so, well essentially the same offending.

HIS HONOUR: He was in and out of custody and he was out on bail for 71 days.  This is a complicated little calculation to take up unnecessary time.

AINSWORTH: Yes.  Yes, your Honour.

HIS HONOUR: Is there some agreed date for commencement?

NG: Well, your Honour, certainly the Crown would agree that your Honour can take into account the 32 days that were not credited in his previous sentence.  However‑‑

HIS HONOUR: Telling me the arguments won't help me.

NG: Yes, your Honour.

HIS HONOUR: Is there an agreed date?

NG: In addition the period that Mr Islam spent bail refused after the‑‑

HIS HONOUR: Is there an agreed, can there be an agreed date for commencement or a range?  I don't need to know all the factors.

AINSWORTH: Yes, your Honour.  We do, it can be backdated 119 days.

HIS HONOUR: Right.

AINSWORTH: Back from the expiration of his non parole period.

HIS HONOUR: 119 days.

AINSWORTH: Four months essentially.

HIS HONOUR: Four months from 18 March; is that right?

NG: Yes, your Honour.

AINSWORTH: Yes, your Honour.  That's the date in which he was sentenced.

HIS HONOUR: November, so the start on 18 November 2018?

AINSWORTH: Yes, your Honour.

HIS HONOUR: That's an agreed starting date?

AINSWORTH: Yes, your Honour.

HIS HONOUR: 18 November 2018.  Thank you.”

50. Whilst the applicant’s counsel clearly misspoke towards the end of the extracted passage, referring to 18 November 2018 as “the date in which he was sentenced”, he had been perfectly clear prior to that point as to the selection of the date and the basis of its selection.

51. Referring to the written submissions that had been filed on the applicant’s behalf (and written by the applicant’s solicitor), counsel stated that the date of commencement of the sentence should reflect more than the 32 days of pre-sentence custody his instructing solicitor had suggested was appropriate. He submitted – correctly – that the selection of the date was discretionary, but suggested that it should be a date calculated backwards by 119 days, or “four months essentially”, from “the date of the expiration of his non-parole period”. That is, it was contended on the applicant’s behalf that his Honour should commence the sentence he was about to impose by deducting four months from 18 March 2019. That date was 18 November 2018.

52. There can be no reasonable claim that counsel selected the date by mistake, or that the Crown mistakenly accepted it as an appropriate date, or that his Honour was misled by accepting the agreed position of the parties. Equally, there can be no reasonable claim of a miscalculation, since the deduction urged upon the sentencing judge was correctly made. It is very clear that the applicant submitted that it was appropriate that he be given the benefit of four months in which the NPP of both sentences would be served concurrently. The Crown accepted this, as did the sentencing judge. There was no mistake, error, or miscalculation.

53. The applicant’s contention in this Court that the date the applicant “appeared” to suggest and which the Crown accepted was the product of an error must be rejected. This is not then, an example of a case where this Court has intervened because the sentencing judge has not given effect to a finding of special circumstances through inadvertence or miscalculation: Caristo v R [2011] NSWCCA 7, per R A Hulme J at [36], with whom Giles JA and Adams J agreed.

54. Against the clear background that the commencement date of sentence was that urged upon the sentencing court by the applicant, it remains to consider whether the sole ground of appeal can be made good. In my view it cannot.

55. The totality principle requires consideration to be given to the extent to which a particular sentence is to be served concurrently or cumulatively with a pre-existing sentence, in accordance with what the High Court has said in Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70; Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57; and Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15. The well-known principle derived from those and other cases, in brief, requires a sentencing court to ameliorate the penalty which would apply if the sentences imposed for a number of individual offences were served consecutively, as strict justice might suggest was necessary, to avoid a sentence that is crushing, or disproportionate to the overall criminality: R v Rossi (1988) 142 LSJS 451 at 453; Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26 at 308.

56. Where there is some commonality in the offending conduct, concurrence of sentence is generally appropriate; where there is no commonality, accumulation of sentence would ordinarily be called for, except insofar as the totality principle operates to mitigate the overall effective sentence.

57. Here his Honour was obliged, pursuant to s 47(3) of the CSP Act, to take into account any time for which the applicant had been held in custody in relation to the offence and, pursuant to s 47(4) of the Act, constrained from setting a commencement date into the future, but it was otherwise a matter for the sentencing court to determine an appropriate date for the commencement of sentence in accordance with principle.

58. In determining an appropriate date (by accepting the submission of the applicant and the concession of the Crown), and an appropriate sentence, his Honour was well aware of the totality principle. He had been referred to it in written and oral submissions, and it was the subject of exchanges between the bench and the bar table during the proceedings. He referred to it specifically in his judgment.

59. His Honour was also well aware of the circumstances of the applicant’s earlier crimes, and of the details of the sentence imposed by Armitage A/DCJ. The Crown had tendered all of the material relating to the first set of offences, and the criminal and custodial histories clearly recorded the length of the sentence and the relevant dates.

60. It is very unlikely that, with the benefit of that information, and after having heard from the parties and referred himself in his remarks to the question of totality, his Honour could overlook that aspect of the matter.

61. For the same reasons, having made a finding of special circumstances pursuant to s 44(2) of the CSP Act, it is most unlikely that his Honour could have overlooked the earlier sentence when determining the sentence to be imposed and the proportion of NPP to head sentence.

62. There was no obligation upon the sentencing judge to attempt to maintain the ratio of sentence that Armitage A/DCJ had considered appropriate when imposing sentence for the 2016 offences, and there was no obligation on his Honour to attempt to do so when imposing sentence in the matters before him. He was not required to calculate the overall head sentence and overall NPP for those purposes: Stoeski v R [2014] NSWCCA 161 at [53]; Tuivaga v R [2015] NSWCCA 145 at [38]; Calhoun (a pseudonym) v R [2018] NSWCCA 150 at [32] and [35].

63. Whilst the total effective NPP exceeds the statutory ratio by 0.37%, that of itself does not establish error: Calhoun at [35]; Sonter v R [2018] NSWCCA 228 at [23]–[24]. The extent to which the statutory ratio has been exceeded is negligible, and not, as it was in Hardey v R [2019] NSWCCA 310, to a significant amount.

64. What his Honour was required to do was to ensure that neither the finding of special circumstances he made, nor the date fixed for the commencement of sentence, meant that the NPP failed to appropriately reflect the criminality involved in the two offences before him: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534, per Spigelman CJ at [63].

65. That criminality was significant, as the sentencing judge found. His Honour characterised the offending as “cunning”, requiring forethought and planning, and advanced technological skills, with the applicant controlling “a complex and prolonged multi-jurisdictional fraud operation” from which he derived a substantial financial benefit. These crimes were committed when the applicant was at conditional liberty subject to bail for offences of a similar nature. That is a matter of significant aggravation.

66. The offences were also quite separate from the 2016 crimes with, in my opinion, little beyond the principle of totality that militated in favour of a degree of concurrency. On his arrest for the 2016 offences, the applicant suffered the seizure of some of the equipment necessary for his fraudulent activities to operate, the credit card blanks used in cloning legitimate cards. He also lost his collaborator, who was arrested and deported.

67. Having been admitted to bail for the 2016 offences on 9 August 2016, the applicant recruited others to participate in his criminal group, instructed them in their tasks, and gave directions as to the commission of offences, all when subject to bail. By late August 2017, his operation was sufficiently advanced as to have come under police surveillance, and he was arrested on the present matters on 26 January 2018. Although these matters were very similar to the 2016 offences, and involved similar acts, this was not one course of criminality. Concurrence of the sentences imposed for the 2016 offences and the 2017–2018 offences was by no means required. Particularly in those circumstances, the period of concurrence allowed by the sentencing judge was adequate, as the applicant clearly thought during the proceedings on sentence.

68. Whilst the finding of special circumstances by his Honour had to be given effect, his Honour achieved that by imposing a NPP which was 69.57% of the total sentence. Even taking the sentence imposed by his Honour together with that imposed by Armitage A/DCJ, the current sentence allows for a period of 13 months in which the applicant could – subject to his immigration status – access the “counselling and supervision” his Honour concluded was required. That should be adequate.

69. It is important to bear in mind that, as R A Hulme J said in Caristo at [42]:

“the focus should not be solely upon the percentage proportions that the non-parole and parole periods bear to the total term. The actual periods involved are equally, and probably more, important.”

70. Although, in light of the applicant’s likely deportation upon release from custody, it is somewhat artificial to consider the question of the adequacy of a period of 13 months parole with the benefit of supervision, that is a sufficient period to assist the applicant through provision of access to counselling. Nothing in the evidence that was before the sentencing judge establishes otherwise, and nor did the applicant point to any such evidence in this Court.

71. Ground 1 of the proposed appeal has not been made good. Although I would grant leave to appeal, the appeal should be dismissed.

Conclusion

72. The order I propose is:

1. Leave to appeal granted;

2. Appeal dismissed.

73. IERACE J: I also agree with Wilson J.

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Decision last updated: 25 September 2020