JOD v R

Case [2009] NSWCCA 205 25 August 2009

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New South Wales
Court of Criminal Appeal

CITATION: JOD v REGINA [2009] NSWCCA 205

HEARING DATE(S): Wednesday 15 April 2009

JUDGMENT DATE:
25 August 2009

JUDGMENT OF: Giles JA at 1; Hall J at 2; RA Hulme J at 87

DECISION: Leave to appeal granted. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – particular offences – applicant was involved in an organised crime syndicate which took over the identities of legitimate individuals and entities in order to defraud financial institutions – applicant attended financial institutions and presented false documents in order to open bank accounts in false names, to withdraw money from genuine bank accounts or to make fraudulent claims in relation to credit cards or loans - application of parity principles – offenders charged with different offences not strictly co-offenders having regard to the relevant factual and other differences in the respective offending – applicant’s objective criminality of a higher order than that of his “co-offender having regard to the applicant’s role in the syndicate and repeated offending over a lengthy period - no disproportion between the head sentences imposed upon the applicant and “co-offenders” – appeal dismissed

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995
Financial Transaction Reports Act 1988 (Cth)

CASES CITED: Gao v Regina [2008] NSWCCA 234
Kardoulias v Regina [2005] 159 A Crim R 252
Lowe v The Queen (1987) 154 CLR 606
Mitchell v Regina [2008] NSWCCA 192
Pham v Regina [2009] NSWCCA 25
Postiglione v The Queen (1997) 189 CLR 295
Regina v Ellis (1993) 68 A Crim R 449
Regina v Formosa [2005] NSWCCA 363
Regina v Ilbay [2000] NSWCCA 251
Regina v Kerr [2003] NSWCCA 234
Spinks v Regina [2007] NSWCCA 52
Watson (NSWCCA, 25 February 1992, unreported)
Wurramarbra v Regina (1979) 28 ALR 176; Regina v
Yin v Regina [2007] NSWCCA 350

PARTIES: JOD v
REGINA

FILE NUMBER(S): CCA No 2007/16265

COUNSEL: C: N Adams
A: A Francis

SOLICITORS: C: Commonwealth Director of Public Prosecutions
A: Legal Aid Commission

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0316

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 20 November 2008

No 2007/16265

GILES JA
HALL J
R A HULME J
TUESDAY 25 AUGUST 2009

JOD v REGINA

Judgment

1 GILES JA: I agree with Hall J

2 HALL J: The applicant seeks leave to appeal against sentences imposed upon him by the District Court of New South Wales on 27 July 2007 following his pleas of guilty to 73 fraud related offences.

3 The applicant was sentenced in respect of the following offences:-

• Fifteen offences contrary to s.145.1(5) of the Criminal Code Act 1995 (use forged Commonwealth document).

• Seven offences contrary to s.24(1) Financial Transaction Reports Act 1988 (Cth) (open account in false name).

• Two offences contrary to s.480.4 Criminal Code (dishonestly obtain or deal in personal financial information).

• Twenty-six offences contrary to s.178BA of the

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading JOD v R

Details

AGLC: JOD v R [2009] NSWCCA 205
Case: [2009] NSWCCA 205
Decision Date: 25 August 2009

CaseChat Overview and Summary

In the matter of JOD v R, the appellant sought to appeal the sentence imposed by the lower court. The appellant was part of an organised crime syndicate that used stolen identities to commit financial fraud. This included presenting false documents to financial institutions to open accounts, withdraw money from genuine accounts, and make fraudulent credit card or loan claims. The appeal was heard in the court of appeal, where the primary issue was whether the sentencing principles applied by the lower court were appropriate. Specifically, the court had to determine if the principle of parity was correctly applied in light of the differences in the respective offending between the appellant and other members of the syndicate.

The court considered whether the offenders were strictly co-offenders, given the factual differences in their offending. It was found that while the appellant and the others were involved in the same syndicate, their roles and the extent of their involvement varied. The appellant played a more significant role and had a history of repeated offending over an extended period. As such, the court concluded that the appellant's objective criminality was of a higher order. The court also examined whether the head sentences imposed on the appellant and the other offenders were disproportionate. It was determined that there was no disproportion, as the sentences reflected the respective roles and levels of involvement of each offender.

The appeal was dismissed by the court. The reasoning and outcome were based on the appropriate application of sentencing principles, recognising the differences in the offending and the roles of the various participants in the syndicate. The court found that the sentences imposed were fair and proportionate, reflecting the varying degrees of criminality and culpability. Consequently, the appeal was unsuccessful, and the original sentences were upheld.

Orders