Lees v The Queen

Case [2022] SASCA 93

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
Case
[2022] SASCA 93
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CaseChat Overview and Summary

In Lees v The Queen, the appellant appealed against his sentence to the Full Court of the Supreme Court of South Australia. The appeal concerned the severity of the sentence imposed for his involvement in a large-scale computer hacking scheme, which involved diverting automated banking transfers of numerous organisations to fraudulent accounts. The appellant and his co-accused, Ms Emily Walker, operated this scheme from their home for at least 18 months, using customised software and stolen identification documents to establish these fraudulent accounts.

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

Orders of the court

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Background

Background to the litigation

Given that concession, it follows that the issue arising on the two grounds maintained in the Notice of Appeal is whether this Court should conclude, in the separate and independent exercise of its discretion, that no different sentence should be passed and that the sentence imposed was the appropriate sentence for this offender and this offending.[1] In prosecuting the case that it was not, and in pursuit of the complaint of manifest excess, the appellant also argued that the severity of the sentence imposed in respect of Counts 3-9, and that sentence being made wholly cumulative on the sentence for Counts 10-19, caused the sentence to be manifestly excessive in any event.[1] Kentwell v The Queen (2014) 252 CLR 601 at [35], [42]-[43].Background For at least 18 months prior to their arrests, the appellant and the co-accused at sentencing, Ms Emily Walker, engaged in a sophisticated and large-scale computer hacking scheme (‘the Intrusion Scheme’), targeting a multitude of different organisations across Australia. The appellant and Ms Walker, who were domestic partners, operated the Intrusion Scheme out of a home office in their residence in Seaton, SA. They possessed customised computer software which, when deployed, would cause the automated banking transfers of organisations to be diverted to fraudulent accounts established and controlled by them. These fraudulent accounts were created through the use of stolen identification documents. The Intrusion Scheme targeted at least 23 organisations. The losses to the targeted organisations and the actual benefits to the appellant and Ms Walker were difficult to quantify. However, there was an initial loss of approximately $771,000 to the victims, of which $518,000 was recovered by anti-fraud detection systems. It is necessary to describe the offending in a degree of detail. Count 1 The appellant and Ms Walker used compromised remote desktop protocol (‘RDP’) credentials to execute the Intrusion Scheme. They were in possession of specialised software, namely a customised ‘PowerShell script’ (‘script’), which was written to search payroll systems within an organisation’s network and locate a file containing the instructions for banking payments, known as an Australian Bankers Association (‘ABA’) file. The script would alter the ABA file to remove the legitimate banking details of payees and replace them with bank details of fraudulent bank accounts created by the appellant and Ms Walker. Count 2 The appellant and Ms Walker established the fraudulent bank accounts online with various Australian banking institutions. They did so by using personal details of real people, thousands of which they had obtained possession illegally. Some of these details came from the employees of Australian businesses which had previously had their RDP networks compromised.Counts 3-9 and 20-21 The appellant and Ms Walker created false applications for accounts at various financial institutions in the names of Jessica Wilkinson; Gary Reimers; Andrew Emms; Joshua Scells; Joshua Evans; and Christopher Evans (twice). This conduct is the subject of Counts 3 to 9.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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