Lee v R

[2019] NSWCCA 15

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Lee v R [2019] NSWCCA 15
Hearing dates:	19 November 2018
Date of orders:	08 February 2019
Decision date:	08 February 2019
Before:	Hoeben CJ at CL at [1]; Rothman J at [2]; Price J at [3]
Decision:	(1)   Leave to appeal granted. (2)   Appeal dismissed.
Catchwords:	CRIMINAL LAW – sentence appeal – possession of equipment to commit forgery – dealing in identification information with intention of facilitating fraud – participation in a criminal group – whether financial gain is an inherent characteristic of an offence of dealing with identification information contrary to s 192J Crimes Act – whether error in judge’s finding that financial gain was an aggravating factor – whether aggregate sentence was manifestly excessive – highly exceptional hardship to applicant’s son – whether less weight to be given to general deterrence – significance of general deterrence for identity crimes – sentence not manifestly excessive – appeal dismissed
Legislation Cited:	Crimes Act 1900 (NSW), ss 93T, 192J, 265 Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A Drug Misuse and Trafficking Act 1985 (NSW), ss 25, 25A
Cases Cited:	Chen v R; He v R [2018] NSWCCA 95 Clinton v R [2018] NSWCCA 66 Couloumbis v R [2012] NSWCCA 264 Dinsdale v The Queen (2000) 200 CLR 321; [2000] HCA 54 Dipangkear v R [2010] NSWCCA 156 House v R (1936) 55 CLR 499; [1935] HCA 40 Huang v R [2017] NSWCCA 312 Hurmz v R [2017] NSWCCA 235 Lin v R [2018] NSWCCA 13 Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275 Postiglione v R (1997) 189 CLR 295; [1997] HCA 26 Prculovski v R [2010] NSWCCA 274 R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 Stevens v R [2009] NSWCCA 260; (2010) 262 ALR 91 Wat v R [2017] NSWCCA 62
Category:	Principal judgment
Parties:	Michael Lee (Applicant) Regina (Respondent)
Representation:	Counsel: A Parsons (Applicant) B Baker (Respondent)   Solicitors: Ren Zhou Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2015/370863
Publication restriction:	Non-publication order as to the name of the Applicant’s son
Decision under appeal	Court or tribunal: District Court of NSW Jurisdiction: Criminal Citation: [2018] NSWDC 201 Date of Decision: 28 June 2018 Before: Scotting DCJ File Number(s): 2015/370863

Judgment

1. HOEBEN CJ at CL: I agree with Price J and the orders which he proposes.

2. ROTHMAN J: I agree with Price J.

3. PRICE J: Michael Lee (“the applicant”) was sentenced in the District Court at Sydney on 28 June 2018 after pleading guilty to the following four counts on an indictment:

“1   [O]n the 17th day of December 2015, at Campsie in the State of New South Wales, did possess an Embossing machine, Fargo card printer, Fargo HDP colour ribbon, blank cards, blank cards with black magnetic strip, blank cards with blue magnetic strip, laminator, computer hardware and clear film designed/adapted for making a false document, knowing that it is so designed/adapted and intending that the said Embossing machine, Fargo card printer, Fargo HDP colour ribbon, blank cards, blank cards with black magnetic strip, blank cards with blue magnetic strip, laminator, computer hardware and clear film will be used to commit the offence of forgery.

…

2   Between the 1st day of July 2015 and the 18th day of December 2015, at Sydney in the state of New South Wales, did deal in identification information relating to 33 persons, with the intention of facilitating the commission of an indictable offence, namely fraud.

…

3   [B]etween the 1st day of July 2015 and the 18th day of December 2015, at Sydney in the state of New South Wales, did deal in identification information relating to 26 persons, with the intention of facilitating the commission of an indictable offence, namely fraud.

…

4   [B]etween the 1st day of July 2015 and the 17th day of December 2015, at Sydney in the State of New South Wales, did participate in a criminal group with Aik Chuan YEOH, Ya Fang ZHANG, Tran Hoai CAO, Ziauddin MOHAMMED and Gurpreet SINGH, knowing it was a criminal group and knowing that his participation in that group contributed to the occurrence of criminal activity.”

4. Count 1 alleged a contravention of s 256(1) of the Crimes Act 1900 (NSW). The maximum penalty for this offence is 10 years imprisonment.

5. Counts 2 and 3 alleged contraventions of s 192J of the Crimes Act. The maximum penalty for this offence is 10 years imprisonment.

6. Count 4 alleged a contravention of s 93T of the Crimes Act. The maximum penalty for this offence is 5 years imprisonment.

7. Scotting DCJ (“the judge”) indicated the following sentences:

• Count 1: Imprisonment for 3 years;

• Count 2 (33 persons): Imprisonment for 2 years;

• Count 3 (26 persons): Imprisonment for 2 years; and

• Count 4: Imprisonment for 6 months.

8. The judge imposed an aggregate term of imprisonment of 4 years with a non-parole period of 18 months commencing from 28 June 2018 and expiring on 27 December 2019. The applicant received a 10% discount for his pleas of guilty and a 15% discount for past assistance. [1]

   1. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [129], [132].

9. His Honour found special circumstances being the applicant’s adjustment disorder and that he “…will be separated from his son who has special needs and the amount of time for which they are separated should be minimised to the fullest extent possible”. [2]

   2. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [158].

10. The applicant seeks leave to appeal against his sentence on the following grounds:

“Ground 1: The learned sentencing Judge erred in finding, as an aggravating factor, that the offences were committed for financial gain within the meaning of s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Ground 2: The aggregate sentence is manifestly excessive with respect to the minimum term and the head sentence.”

11. Co-offenders Ziauddin Mohammed (“Mohammed”), Aik Chuan Yeoh (“Yeoh”) and Ya Fang Zhang (“Zhang”) were sentenced together with the applicant.

12. Another co-offender Tran Hoai Cao (“Cao”) had been sentenced by the judge on 19 May 2017.

13. Cao, who had pleaded guilty in the Local Court, was sentenced by the judge for two sets of offences. The first set related to the supply of prohibited drugs and the second related to the criminal enterprise in which the applicant was involved. He was charged with four counts contrary to s 192J of the Crimes Act and one count contrary to s 93T of the Crimes Act. An aggregate term of imprisonment was imposed of 4 years 9 months with a non-parole period of 2 years 9 months.

Factual background

14. In July 2015 the Identity Security Strike Team (“ISST”) commenced Operation DRAX to investigate the manufacturing and distribution of fraudulent identity documents.

15. At about 6.15am on 16 December 2015 police executed a search warrant at the applicant’s residence. During the search, items including blank card stocks, blank cards with magnetic strips used with Medicare cards, an embossing machine, computer equipment containing images of NSW Driver’s Licences, a ‘Fargo’ card printer, printer colour ribbon, clear film, laminators and electronic data storage devices were located.

16. The investigation revealed the applicant and co-offenders were engaged in an operation whereby orders for fraudulent documents would be placed by Mohammed with Cao. Cao would relay orders to Zhang for a fee. The orders would then be forwarded to Yeoh who arranged for documents to be manufactured by the applicant.

17. After the fraudulent documents were produced, they were transferred in reverse order until they reached Mohammed. These fraudulent documents were then used to approach financial institutions, in order to obtain loans and credit cards.

18. On one occasion, Abraham Maka, an associate of Mohammed, attended the Marrickville branch of the National Australia Bank and obtained a personal loan of $24,500 using the false identity of “Vinod Sam”. Cao remained in telephone contact while Mohammed was at the bank and throughout the entire transaction. The money was paid into a nominated bank account of Maka and at the time of sentencing had not been recovered by the Bank. [3]

    3. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [13].

19. Over the course of about six months, the co-offenders operated in a criminal group, each with a different role. The applicant, in his role, produced approximately 34 sets of false identification documents with which loans were obtained amounting to a sum of $595,821.43. [4]

    4. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [22].

Subjective case

20. The applicant did not give evidence before the judge however, documentary material was tendered in this case.

21. The applicant was born in China on 25 February 1965. In 1988, at the age of 23, he migrated to Australia. He has a 21 year old daughter from his first marriage, which deteriorated in 2000. He returned to China in 2007, married his second wife and returned to Australia in 2011. From this relationship, he has a son, who was ten years old when the applicant was sentenced. The identity of the applicant’s son is subject to a non-publication order and will be referred to as “XXX”.

22. A witness statement and victim impact statement were tendered, which related to a home invasion on 2 July 2016 of which the applicant and XXX were victims. Two men had announced themselves as police in order to gain access to the unit. The applicant opened the door. Armed with weapons, the men grabbed him and threatened to kill XXX if he did not give them money. In the presence of XXX, the intruders inflicted injuries on the applicant including burning him with a lighter and cutting him with a knife. Approximately $6,000 was taken by the intruders. The applicant was taken to hospital and the incident was reported to police.

23. The applicant stated that XXX was highly traumatised by the home invasion. He said that XXX sleeps with the light on and is anxious whenever they are separated including when XXX attends school.

24. The applicant tendered a report of Dr Olav Nielssen, psychiatrist, dated 24 January 2018. The report provided an assessment of the impact that a sentence of imprisonment imposed on the applicant would have on his son.

25. Dr Nielssen noted that the mother of XXX developed post-partum psychosis soon after the birth of their child and was later diagnosed with schizophrenia. The applicant told the psychiatrist that his wife had subjected their son to dangerous medication overdoses and destroyed property in their apartment.5 He stated that he left China with his son in order to protect him.

26. Dr Nielssen recorded that in 2012, XXX was diagnosed with autism spectrum disorder, attention deficit hyperactivity disorder and separation anxiety. He has been treated with medication for anxiety and sleeping difficulties.

27. The applicant told Dr Nielssen he was responsible for most of his son’s care in the early years of his life due to the mother’s illness and that he was XXX’s sole carer. Dr Nielssen opined that from the available information, XXX was almost completely dependent on the applicant for day to day care, and that he would be vulnerable to further instability and neglect if the applicant was imprisoned. Dr Nielssen’s psychiatric diagnosis of XXX was anxiety disorder and possible developmental disorder.

28. The applicant also tendered a report of Dr Julie Parle, Consultant Paediatrician, dated 12 March 2018. Dr Parle considered that XXX required a high level of care due to his difficulties with attention, impaired executive function and poor coordination.

29. Dr Parle opined that XXX suffers from generalised anxiety and a separation disorder. She observed that XXX’s condition worsened after the invasion, such as being unable to attend activities outside school without his father and being unable to sleep alone. Dr Parle considered that these symptoms suggested post-traumatic stress disorder. She remarked that there would be a high risk that XXX’s anxiety would be exacerbated and his emotional regulation would worsen if he was to be separated from his father. Dr Parle remarked that XXX could be easily manipulated and at risk in a foster placement setting.

30. In a report dated 30 May 2018, Bradley Jones, Forensic Psychologist, noted that the applicant’s parents have been divorced since 1995. His mother was 81 years of age and resides in Riverwood. She has a frail physical state and speaks limited English. His elderly father resides in a nursing home in China. There were no other family members who would be able to provide XXX with the required level of care.

31. Mr Jones assessed the applicant to be suffering from an adjustment disorder with mixed anxiety and depressed mood. Mr Jones expressed the opinion that if the applicant was incarcerated, his son would experience a significant exacerbation of his pre-existing disorders and there would be a likelihood of developing a depressive disorder.

32. The applicant also tendered reports from Dr Robert Chong, Ophthalmic Surgeon and Dr Donald Lin, General Practitioner. Dr Chong opined that the applicant suffered from diabetic retinopathy. Dr Lin reported that the applicant was diagnosed with coronary heart disease in December 2017 and had coronary stenting. Dr Lin further reported that the applicant suffers from hyperlipidaemia, depression, diabetes mellitus, and diabetes retinopathy which is vision threating and has the possibility of blindness.

33. In an unsworn statement, the applicant accepted that he made false documents and did so due to his financial difficulties. He stated that he did not know the co-offenders other than Yeoh, who would order the false documents and provide him with a list of names, personal details and other specifications. The applicant would then make the products and Yeoh would pay him $300 for a false Driver’s License and $100 for a false Medicare card. He apologised to the court for his offence which he said was “serious and unforgiveable”.

34. At the time of sentence, the applicant was 52 years old. His prior criminal history disclosed that he was sentenced to 6 years imprisonment with a non-parole period of 3 years 6 months in the District Court at Sydney, on 23 November 2001, for attempting to obtain possession of an imported prohibited drug, namely not less than the traffickable quantity applicable to methylamphetamine.

Some findings by the judge

35. The judge found that the dealing with information charges revealed a sophisticated and organised criminal operation. His Honour noted that the orders for fake Driver’s Licenses and Medicare cards were placed by Mohammed with Cao. The orders were then passed on to Zhang and Yeoh, before ending up with the applicant. The applicant would then make the false identification documents, which would be supplied back through the chain of people in the reverse order. His Honour observed that “…[t]his process provided some protection from detection for the persons involved in the offences”. [5]

    5. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [101].

36. His Honour said that the applicant possessed and used equipment to make all the false identification documents involved in the scheme. He was paid per item: $300 for a Driver’s License and $100 for a Medicare card. His Honour observed that the documents were of high quality and were accepted repeatedly as authentic documents by a number of different persons.

37. His Honour found that the involvement and skill of the applicant was essential to the success of the scheme and the false identification documents were used to obtain loans that were not repaid, resulting in a loss of $595,821.43 to the banks.

38. His Honour said that each offender participated in the scheme for financial gain. The criminal group operated for about 6 months between July 2015 and December 2015.

39. The judge found that each member had a defined role and received money.

40. The judge said that identity offences are prevalent, and general deterrence should be reflected in the sentences to be imposed. His Honour observed that general deterrence may be afforded less weight where an offender suffers from a mental condition. His Honour said that the evidence relied on by the applicant did not allow him to conclude there was any causal connection between his present mental condition and the offending conduct. His Honour accepted that the applicant’s “…present mental state may make any time in custody more difficult, particularly by reference to his anxiety about being separated from his son”. [6]

    6. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [113].

41. His Honour found two aggravating factors. The offences were part of a planned or organised criminal activity: s 21A(2)(n) Crimes (Sentencing Procedure) Act 1999 (NSW) (“CSP Act”), and were committed for financial gain: s 21A(2)(o) of the CSP Act.

42. The judge found the applicant had good prospects of rehabilitation and a low risk of reoffending. [7] His Honour was satisfied that the applicant had expressed genuine contrition and remorse. [8]

    7. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [124].

    8. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [127].

43. In relation to the hardship to be suffered by XXX, the judge took into account that XXX’s mother suffered from a severe mental illness, that the applicant was XXX’s sole carer, that XXX suffered developmental issues and developed an anxiety disorder, and that his plight was worsened following the home invasion. The judge observed that the evidence was that XXX’s anxiety related condition was “…expected to worsen and that he may be at risk of depression or exploitation in foster care”. [9]

    9. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [134].

44. His Honour concluded that the hardship to XXX was “highly exceptional”. [10] However, his Honour noted the hardship to XXX must be balanced against the need for the sentence imposed to reflect the purposes of sentencing, in particular, “…[the] need for general deterrence, retribution, denunciation and a sentence of appropriate severity”. [11] His Honour went on to say:

“In all of the circumstances, I will significantly mitigate the sentence I would have imposed and reflect the hardship in a finding of special circumstances.”[12]

10. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [137].

11. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [137].

12. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [138].

45. The judge was satisfied that no penalty other than imprisonment was appropriate. [13]

    13. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [139].

Grounds of appeal

Ground 1: The learned sentencing Judge erred in finding, as an aggravating factor, that the offences were committed for financial gain within the meaning of s 21A(2)(o) of the Crimes (Sentencing Procedure) Act 1999 (NSW).

46. The applicant contended that the judge erred by finding, as an aggravating factor, that the offences were committed for financial gain. The applicant submitted that dealing in identification information is an offence that has an inherent profit making purpose through the sale of the information – in this case, the sale of Driver’s Licenses and Medicare cards. The applicant argued that the offence was analogous to the profit expected to be made through the supply of prohibited drugs, and the financial gain in this case fell far short of attracting the aggravating factor set out in s 21A(2)(o).

47. The applicant adverted to cases such as Huang v R [14] (“Huang”); Lin v R [15] (“Lin”); and Chen v R; He v R [16] (“Chen”), and argued that the financial gain must be “significant” or more than was likely to be inherent in the offence before the Court can find that the financial gain is an aggravating factor.

    14. [2017] NSWCCA 312.

    15. [2018] NSWCCA 13.

    16. [2018] NSWCCA 95.

46. The applicant submitted that there is nothing exceptional or “significant” about the personal financial gain in the present case, being $12,500.00 for the dealing of 59 documents over 5 months, or that this amount was more than was likely to be inherent in the offence.

47. The Crown noted it is well established that a factor should not be taken into account to aggravate a penalty where the factor is an element or inherent characteristic of the offence for which the offender is being sentenced, unless its nature or extent exceeds the norm. [17]

    17. See for example: R v Yildiz [2006] NSWCCA 97; (2006) A Crim R 218 at [37]; Clinton v R [2018] NSWCCA 66 at [20].

48. The Crown contended that financial gain is not an element, or an inherent characteristic, for the offence of dealing in identification information contrary to s 192J of the Crimes Act. The Crown observed that financial gain was not an element of the present offence.

49. The Crown contended that dealing with identity information is more analogous to armed robbery offences as there are many instances where the present offence is committed with no motivation to obtain a financial gain for the offender. A key example raised by the Crown was the situation where a member of a gang provides false identification for other members to facilitate the commission of an offence, but where no financial advantage flows to the offender in those circumstances.

50. Another argument was that an aggravating factor will be “significant” where it exceeds what “might be expected in the lowest level” of offending for the particular kind of offence or where the factor exceeds that which would ordinarily be expected in the relevant offence. [18] The Crown submitted that a benefit in excess of $10,000 was well above that which might be expected in the lowest level for an offence of this nature.

    18. Hurmz v R [2017] NSWCCA 235 at [21]; Wat at [48], citing Prculovski v R [2010] NSWCCA 274 at [43]; Farkas v R (2014) 243 A Crim R 388 at [62]; Elyard v R [2006] NSWCCA 42; Huang at 51.

Consideration

53. In determining the appropriate sentence to be passed, the judge took into account as an aggravating factor that the offences were committed for financial gain: s 21A(2)(o) of the CSP Act.

54. Where financial gain is either an element of the offence charged or an inherent characteristic of that kind of offence, financial gain cannot be taken into account as an aggravating factor under s 21A(2)(o), unless its nature or extent in the particular case is unusual. [19]

    19. Regina v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218 at [37]; Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275 at [46]; Clinton v R [2018] NSWCCA 66 at [20].

55. In cases concerning offences against the Drug Misuse and Trafficking Act 1985 (NSW) (“DMT Act”) where an inherent characteristic of the class of offence charged is financial gain, it has been held that financial gain must not be treated as an aggravating factor unless the financial gain was significant and above that expected in the lowest level of offending for that type of offence: Prculovski v R [20] (“Prculovski”), Wat v R [21] (“Wat”) and Huang.[22]

    20. [2010] NSW CCA 274 at [43].

    21. [2017] NSWCCA 62 at [44].

    22. [2017] NSWCCA 312 at [56]-[60].

56. Whether financial gain is an inherent characteristic of the offence charged is not determined by an offender’s motive for committing the offence. As Harrison J explained in Couloumbis v R [23] (“Couloumbis”) at [31]:

“An inherent characteristic suggests something that is always present as a permanent and essential attribution of the thing under consideration…”

23. [2012] NSWCCA 264.

57. In Couloumbis, the appellant had been convicted of one count of conspiracy to commit aggravated armed robbery. Harrison J (with whom McClellan CJ at CL and Adamson J agreed) rejected the appellant’s argument that “financial gain” was an inherent characteristic of the offence charged. His Honour said at [31]:

“…As counsel for the [appellant] quite properly conceded in this Court, examples of the subject offence in which financial gain was wholly absent could readily be identified. It follows that financial gain is no more an inherent characteristic of the offence than it is an element of the offence”.

58. The focus of the applicant’s complaint is the offence of dealing with identification information contrary to s 192J of the Crimes Act (counts 2 and 3). Section 192J is as follows:

“A person who deals in identification information with the intention of committing, or of facilitating the commission of, an indictable offence is guilty of an offence.”

59. The indictable offence particularised in counts 2 and 3 was fraud.

60. Counts 2 and 3 which alleged offences contrary to s 192J were charged as offences of “facilitating” the commission of the fraud. The applicant accepted that financial gain was not an element of the offences as charged but argued that financial gain was an inherent characteristic of the offences.

61. During oral argument in this Court, a number of examples of offences under s 192J of the Crimes Act were identified in which financial gain was absent. It is not uncommon for false identity documents to be created for purposes unrelated to financial gain. I am not persuaded that financial gain is an inherent characteristic of that type of offence. Whilst in the present case, the applicant’s motive in producing the fraudulent identification documents was the money that he was to receive for each document; this does not lead to the conclusion that financial gain is an inherent characteristic of an offence contrary to s 192J. In my view, the present case is not analogous to cases such as Prculovski or Wat.

62. Prculovski concerned an offence contrary to s 25A of the DMT Act and Wat concerned an offence of knowingly taking part in the supply of a large commercial quantity of the prohibited drug ephedrine contrary to s 25(2) of the DMT Act. In Wat, this Court considered that for that type of offence, it will almost inevitably be the case that an inherent characteristic is financial gain.

63. It was not an error for the judge to find that an aggravating factor was that the applicant committed the offence for financial gain by reference to s 21A(2)(o). I would dismiss the first ground of appeal.

Ground 2: The aggregate sentence is manifestly excessive with respect to the minimum term and the head sentence.

64. The applicant submitted that the judge erred by imposing a manifestly excessive aggregate sentence. In particular, the applicant argued:

1. The finding of hardship to the applicant’s son was not properly reflected in the sentence actually imposed and the form in which the sentence was to be served; and

2. The application of general deterrence should have been significantly tempered due to the finding of hardship.

65. The applicant pointed out that the hardship to XXX was truly exceptional. The hardship effectively compared two limbs:

• Severe impact of separation on the child’s condition as supported by uncontested expert evidence; and

• Wholly unsatisfactory arrangements that the child was to be subject to upon the applicant’s entry into full time custody.

66. It was contended that the present case was one in which the only way to properly reflect the judge’s finding of “highly exceptional hardship” was to impose an alternative to full time custody. Given the highly exceptional finding by the judge, the applicant argued that the judge erred by not reducing the total term of the sentence to 2 years and suspending the sentence or referring the applicant for an Intensive Correction Order (“ICO”) Assessment.

67. In written submissions, the applicant accepted that parity did not play a significant role in the sentencing task, however, “…note[d] in passing that the co-offender [Cao] was sentenced to 4 years 9 months imprisonment with a non-parole period of 2 years 9 months for what can only be characterised as offending on a more serious level, a weaker subjective case and no finding of hardship”.

68. Another argument was, where a finding of “highly exceptional” hardship has been made, it follows that general deterrence should have been significantly tempered. The applicant submitted the subjective circumstances of the present case militated strongly against the customary application of general deterrence.

69. The Crown contended that no lesser sentence is warranted in law, that the sentence is neither unreasonable nor plainly unjust, and that to reduce the non-parole period to permit the applicant’s imminent or earlier release would produce a sentence that would fail to reflect the objective seriousness of the offences.

70. The Crown argued that the judge expressly took the applicant’s hardship into account in the substantial finding of special circumstances, which varied the ratio of the head sentence and non-parole period to 37.5%. The Crown observed his Honour stated in his remarks on sentence that the generous finding was to minimise the amount of time the applicant would be separated from his son “to the fullest extent possible”. The Crown’s submission was, that the applicant’s complaint impugns the weight given by the judge to the relevant factors, which is ultimately a matter falling within the exercise of his Honour’s discretion.

71. Another argument was that there is no authority for the proposition that general deterrence ceases to be significant in matters involving exceptional hardship, nor is there authority for the proposition that a finding of exceptional hardship could only be properly reflected in the present case by a non-custodial sentence, nor does the sentence imposed indicate that the judge failed to strike the correct balance.

72. With respect to parity, the Crown noted that the judge expressly took into account the sentence imposed on Cao in his sentencing remarks at [133]. The Crown pointed to the applicant’s separate offence under s 256(1) of the Crimes Act, the greater losses incurred by financial institutions resulting from the applicant’s conduct, and the applicant’s “rolled up” counts; and contended that the seriousness of Cao’s offending was not more serious than the applicant’s.

Consideration

73. The applicant’s argument that the aggregate sentence is manifestly excessive is founded upon the contention that his Honour failed to give sufficient weight to his finding that the hardship to XXX by sentencing the applicant to imprisonment was “highly exceptional”. It is not submitted that his Honour erred in his statement of the general sentencing principles where hardship to family and dependants may be taken into account on sentence, but the applicant’s complaint is that notwithstanding the finding, the real value of the hardship and its severity was not properly reflected in the ultimate term imposed and the form that the sentence should take.

74. The extent to which “highly exceptional” hardship to a family member may be taken into account on sentence is a discretionary decision to be made by a sentencing judge in the light of the particular facts and circumstances of the case. As Whealy J said in Dipangkear v R: [24]

“The present situation of the law, relevant to the present appeal, may be briefly stated as follows: -

(a) Where all the features of the particular case point to the need to impose a custodial sentence but there is evidence of extreme hardship, a court may take into account the extraordinary features of the case in any one of three ways. It may suspend the sentence of imprisonment. Alternatively, the sentence may be shortened, or the non-parole period decreased.

(b) Each case will, to a very great degree, depend upon its own facts involving an evaluation of the seriousness of the objective circumstances of the offence committed, the extent of the requirement for general and, perhaps, specific deterrence, and the nature and degree of the impact of the sentence upon the third person.”

24. [2010] NSWCCA 156 at [34].

75. Such a discretionary decision is only reviewable by this Court in accordance with the principles of House v R. [25]

    25. (1936) 55 CLR 499; [1936] HCA 40 at [505].

76. It is plain from his Honour’s sentencing remarks that he gave careful consideration to the hardship to be suffered by the applicant’s son and was mindful of the relevant legal principles.

77. In the facts and circumstances of the case, it was open to the judge to conclude that a sentence of full-time imprisonment was to be imposed, with the non-parole period being decreased to reflect the hardship to the applicant’s son in a finding of special circumstances: see [45] above. In doing so, his Honour varied the statutory ratio of the head sentence and non-parole period to 37.5%. His Honour was neither obliged to lessen the weight given to general deterrence nor was he obliged to suspend the sentence of imprisonment or obtain an assessment for an ICO.

78. The sentence imposed on Cao was noted “in passing” in the applicant’s written submissions with acceptance that parity did not play a significant role in his Honour’s sentencing task. Nothing was said by the applicant’s counsel about parity in oral submissions nor was it contended at any time that there was a marked disparity between the sentence imposed on the applicant and Cao that gave rise to a justifiable sense of grievance. [26]

    26. Postiglione v R (1997) 189 CLR 295; [1997] HCA 26.

79. His Honour expressly took into account in his sentencing remarks the sentence imposed on Cao and appropriately observed that there were good reasons “…for departing from parity in the sentencing exercise to reflect the different roles of each offender, the extent of their participation, their reward and their relative criminal histories”. [27]

    27. R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201 at [133].

80. Before it can be established that a sentence is manifestly excessive, the applicant must demonstrate that the sentence is “unreasonable or plainly unjust”. [28]

    28. Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6].

81. The applicant played a significant role in a sophisticated and organised criminal operation. As his Honour found, the applicant’s skill in creating false identification documents of high quality was essential to the success of the scheme. These documents were used to obtain loans that were not repaid, resulting in a loss of $595,821.43 to the banks.

82. This Court has emphasised the significance of general deterrence for identity crimes. In Stevens v R, [29] Spigelman CJ observed at [3]:

“Identity crime has attained that degree of prevalence to which criminal sentencing has always responded. The MCLOC Report identified a number of reasons why the incidence, extent and cost of identity crime has increased and is likely to continue to expand.”

29. [2009] NSWCCA 260; (2010) 262 ALR 91.

83. And further at [6]:

“The ease with which identity crimes can be committed has expanded well beyond the traditional means of stealing mail or eavesdropping to obtain personal data. The new techniques are multifarious and have a facility of execution which is, of itself, such as to require that sentencing for such offences gives considerable weight to general deterrence…”

84. It was appropriate for the judge to recognise the prevalence of identity offences and the need for general deterrence to be reflected in the sentence imposed.

85. The ultimate constraint on a finding of special circumstances is that the non-parole period must appropriately reflect the criminality involved in the offence. [30] I am of the view that the non-parole period of 18 months is the minimum period that the applicant should spend in custody.

    30. R v Simpson (1992) 61 A Crim R 58 at [63].

86. In my opinion, the sentence is not manifestly excessive. I would reject this ground of appeal.

Orders

87. I propose the following orders:

1. Leave to appeal granted.

2. Appeal dismissed.

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Endnotes

Decision last updated: 08 February 2019