SUPREME COURT OF SOUTH AUSTRALIA
(Court of Appeal: Criminal)
LEES v THE QUEEN
[2022] SASCA 93
Judgment of the Court of Appeal
(The Honourable Justice Doyle, the Honourable Justice Bleby and the Honourable Justice David)
8 September 2022
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE
CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE
CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUDULENTLY OR DECEPTIVELY OBTAINING MONEY, VALUABLE, FINANCIAL BENEFIT OR ADVANTAGE - SENTENCE
Appeal against sentence.
On 29 March 2021, the appellant pleaded guilty to one count of possession of a computer virus with intent to commit serious computer offence, contrary to s 86I of the Criminal Law Consolidation Act 1935 (SA) (CLCA) (Count 1); one count of possess prohibited material, contrary to s 144D of the CLCA (Count 2); seven counts of dishonest dealing with documents, contrary to s 140(4) of the CLCA (Counts 3-9); and 10 counts of use a computer to commit or facilitate the commission of an offence outside the State, contrary to s 86F(1) of the CLCA (Counts 10-19). On 25 June 2021, the appellant plead guilty to a further two counts of dishonest dealing with documents, contrary to s 144D of the CLCA (Counts 20-21).
For at least 18 months prior to their arrests, the appellant and the co-accused at sentencing engaged in a sophisticated and large-scale computer hacking scheme, targeting a multitude of different organisations across Australia. They possessed customised computer software which, when deployed, would cause the automated banking transfers of organisations to be diverted to fraudulent accounts (created through the use of stolen identification documents) established and controlled by them.
On 10 February 2022, a judge of the District Court sentenced the appellant to a head sentence of eight years, six months and 28 days’ imprisonment, and a non-parole period of five years.
The appellant appealed on the grounds that the sentence was manifestly excessive and that the sentencing judge erred in applying the wrong maximum penalty to Counts 10-19.
Held (by the Court), allowing the appeal and resentencing the appellant:
1.The starting point for Counts 10-19 cannot stand in light of the true maximum penalty for those offences. While this group of offences constituted 10 counts, and the offending was serious, a starting point of five years, against a maximum of six years and eight months, was too high.
2.As to Counts 3-9, the severity of the starting point of four years, when viewed together with the starting point for Counts 10-19, contributed to a conclusion that resentencing is required.
3.In resentencing, the Court imposes a head sentence of seven years, nine months and one day, reduced to six years, 10 months and 15 days on account of the appellant’s time in custody and on strict home detention. Having regard to the appellant’s lack of offending history, expressed remorse, rehabilitation to date and good prospects, the Court…
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- Lees v The Queen [2022] SASCA 93
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- [2022] SASCA 93
- Decision Date
CaseChat Overview and Summary
The central legal issue before the Court was whether the sentence imposed was manifestly excessive. The appellant argued that the cumulative sentence, particularly in relation to Counts 3-9, rendered the overall sentence disproportionately severe. This required the Court to independently consider whether the sentence passed was the appropriate one for the offender and the nature of the offending.
The Court acknowledged that the appellant had conceded certain aspects of the prosecution's case, which narrowed the focus of the appeal to the discretionary exercise of the Court's power to interfere with the sentence. The appellant's argument of manifest excess was predicated on the cumulative nature of the sentence for Counts 3-9, which were distinct from the primary offending related to the diversion of funds. The Court was therefore tasked with determining if this cumulative aspect, when combined with the sentence for the core offending, resulted in an unjustifiably severe outcome.
Orders
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
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Ratio Decidendi
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