Lees v The Queen - [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 fixes a non-parole period of four years.

Criminal Law Consolidation Act 1935 (SA) ss 86F, 86I, 130 134, 139(b) 140(4), 144D, 270A(3)(c); Sentencing Act 2017 (SA) ss 26(1), 26(2a); Summary Offences Act 1953 (SA) s 41(1), referred to.
Attorney-General (SA) v Tichy (1982) 30 SASR 84; Hassan v The Queen [2022] SASCA 56; Kentwell v The Queen (2014) 252 CLR 601; Modra v The Queen [2021] SASCA 88; Pearce v The Queen (1998) 194 CLR 610; Police v Wang [2007] SASC 228; R v De Simoni (1981) 147 CLR 383; R v Olbrich (1999) 199 CLR 270; Stewart v Police [2010] SASC 28; Thai v Director of Public Prosecutions (No 3) [2009] SASC 97, considered.

LEES v THE QUEEN
[2022] SASCA 93
Court of Appeal – Criminal: Doyle, Bleby and David JJA

THE COURT: This is an 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 pleaded guilty to a further two counts of dishonest dealing with documents, contrary to s 144D of the CLCA (Counts 20-21).
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 also entered guilty pleas to minor firearms and weapons offences, of which he was convicted and discharged without penalty.
The Notice of Appeal as originally filed complained that the sentence was manifestly excessive and that the sentencing judge erred in the application of principles of parity. That second ground is no longer pressed. However, the Court gave the appellant permission to add a further ground, to the effect that the sentencing judge erred in applying the wrong maximum penalty to Counts 10-19. The respondent concedes the error but maintains that the appeal should be dismissed.
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.
Counts 20 and 21 concerned the appellant’s creation and submission of fraudulent taxation returns in the names of real individuals, and thereby receiving taxation refunds into accounts he controlled. As to Count 20, Mr Thomas Batchelor, a resident of Western Australia, was the owner of a communications and electrical installation business. As at October 2018, he had yet to complete his taxation return, and had not authorised for anyone else to do so on his behalf. On or before 8 August 2018, a taxation return in his name was completed and lodged with the Australian Taxation Office (‘ATO’), resulting in a refund of $12,656.68. The refund was paid into an account established and controlled by the appellant.
As to Count 21, Mr Murray Nixon was a medical practitioner employed by Western Australia General Practice Education and Training Ltd (‘WAGPET’). As at November 2019, Mr Nixon had yet to complete his taxation return, and had not authorised for anyone else to do so on his behalf. On 8 November 2019, Mr Nixon received a Notice of Assessment, indicating a refund of $20,356.94. Between 1 July and 8 November 2019, a taxation return in his name was completed and lodged with the ATO. The refund was paid into an account established and controlled by the appellant.
Counts 10-19
Counts 10-19 concerned the conduct of the appellant and Ms Walker in using a computer to cause unauthorised access to or modification of computer data, knowing that the access and modification were unauthorised, and intending to commit theft. Put simply, they altered the bank details of third parties, as follows.
On 28 September 2018, creditor payments of $42,814 of Tocumwal Golf and Bowls Club, located in New South Wales, were diverted into an account established and controlled by the appellant. Of that amount, $8,205.55 was recouped, leaving a net loss of $34,608.45.
On 8 March 2019, the creditor payments system of DJ Wear and Associates, located in New South Wales, was accessed. Payments totalling $333,407.25 were redirected into an account established and controlled by the appellant. Of that amount, $135,840.10 was recouped.
On 3 April 2019, the appellant and Ms Walker accessed the payroll and creditor payments system of Integrity Fruit Pty Ltd, located in Victoria, and redirected payments totalling $31,21.40 into an account established and controlled by the appellant and Ms Walker. The company’s bank was able to recover $21,977.51.
Between 23 and 31 May 2019, the appellant intruded the computer networks of DB Construct, located in Queensland. The accounting package, MYOB, was accessed. On 6 June 2019, account numbers were altered in the ABA file and at least $102,578 was redirected into an account established and controlled by the appellant.
On 4 July 2019, the appellant and Ms Walker gained unauthorised access into the payroll system of Kempster Commercial Refrigeration Pty Ltd, located in Queensland. They diverted $23,318.53 into an account established and controlled by them.
On 4 September 2019, the appellant gained unauthorised access into the payroll system of WAGPET. The appellant modified several wage payment files, resulting in the redirection of payments totalling $102,311.84 into a number of accounts established and controlled by the appellant. WAGPET’s bank was able to recover about $88,241.84.
On 5 November 2019, the appellant and Ms Walker fraudulently accessed the accounting software system of Atlas Events, located in South Australia, and modified the bank details for the payroll. On 8 November 2018, of the company’s payroll of $28,421.33, the appellant and Ms Walker diverted $20,996.96 into an account established and controlled by them. The company’s bank recovered $2,447.96.
In November 2019, Marhop Pty Ltd, located in New South Wales, suffered a number of intrusions into its computer systems. On 27 November 2019, of the company’s payroll of $38,599, approximately $37,571 was diverted into accounts established and controlled by the appellant and Ms Walker. The company’s bank recovered about $27,522 of the stolen money.
As part of a joint venture with another company, Mountain Blue Marketing Pty Ltd was to make a payment in the sum of $410,305.48, however, the company’s bank stopped $372,01.48 from being transferred. The appellant diverted approximately $37,403 into accounts established and controlled by him.
In July 2019 and January 2020, Ngaliwurru-Wuli Association, a charity in the Northern Territory, suffered two RDP network intrusions. On 21 January 2020, three payments totalling $5,311.20 from the charity were deposited into accounts established and controlled by the appellant. The deposits were ultimately stopped by the charity’s bank.
Sentence imposed on Mr Jones in New South Wales
At sentencing, the prosecution submitted that the appellant was involved in an equal partnership in a criminal enterprise with a Mr Adam Jones who resided in New South Wales, and with whom the appellant communicated via the encrypted messaging platform ‘Wickr’. Neither the sentencing judge nor the New South Wales Court could determine whether Mr Jones had a greater involvement than the appellant. However, the sentencing judge noted that Mr Jones was sentenced in relation to what would appear to be significantly different offences, involving larger sums of money, and had been convicted and sentenced for fraud offences in the Adelaide Magistrates Court in 2012.
The total of the notional sentences imposed on Mr Jones was 17 years and six months. Mr Jones was sentenced to 11 years’ imprisonment with a non-parole period of six years and six months, after accounting for a reduction of 25 per cent. The respondent submitted that the offending described as ‘sequence 76’ in relation to Mr Jones correlated with Counts 10-19 of the appellant’s offending. The notional head sentence for sequence 76 imposed on Mr Jones was two years’ imprisonment.
The sentencing judge’s approach
The sentencing judge accepted that the charged counts occurred as part of a broader course of similar conduct and facilitated a portion of the harm caused by the appellant and Ms Walker. She expressed the appellant’s role in the offending in the following way:[2]
You, Mr Lees, were the architect of the customised program which I accept was not capable of acting independently without user input. Whatever drugs you were consuming, did not, it seems, impair your ability to offend in such a premeditated, targetted [sic] and sophisticated way.
[2] AB 215.
The judge gave full account to the matters raised in mitigation of penalty. No complaint is made in this regard. At sentencing, the appellant was 34. He enjoyed a functional, comfortable and stable upbringing, and continued to have his family’s support. He had a good education and secure employment until his resignation in late 2017 to early 2018, which coincided with his escalating drug use.
The appellant was in a relationship with Ms Walker from mid to late 2017. They were both heavy users of methylamphetamine and GHB. The appellant was first introduced to methylamphetamine when a friend died unexpectedly. His drug use escalated progressively from about 2017 to February 2020. The appellant pointed to his drug use to explain how his life had spiralled into the offending. He said that all his offending occurred in a drug haze, such that it was unclear to him exactly what offences he and Mr Jones committed on each occasion.
The psychological report from Dr Lorraine Lim indicated that there was no evidence that the appellant had a mental impairment at the time of the offending or that he had a personality disorder. Dr Lim considered the appellant to be at low risk of re-offending in a similar manner, given that he was purportedly drug free and had returned to a stable lifestyle. She recommended that the appellant be encouraged to persist with individual psychological therapy. She also believed that the appellant had good prospects for rehabilitation and a positive prognosis for the future.
At sentencing, counsel for the appellant submitted that the program he developed acted autonomously in its targeting. The prosecution disputed this, and the judge did not appear to accept it. In any event, the appellant said that he recognised, from the Victim Impact Statements, that he did not target faceless companies protected by insurance and that his actions have had a significant flow‑on effect. He went on to say that in his drug haze, he did not appreciate the effect of what he was doing.
The appellant had also completed 200 hours of voluntary community service, before obtaining paid employment, which he held until his bail was revoked. He had also participated in sessions with a psychologist dealing with drug relapse prevention.
The sentencing judge indicated that each count with which the appellant was charged was a serious example of that type of offence. She noted that, although the appellant was not to be sentenced for offending for which he had not pleaded guilty, the offending may well have been ongoing, with greater losses to innocent victims, if not for the significant efforts by SAPOL. The judge paid express regard to the matters detailed in the various Victim Impact Statements, which expressed the devastating emotional and economic impacts on the victims. Some of the businesses targeted were significantly embarrassed and lost the trust and respect of their clients and contractors. Other victims expressed their worry about the long‑term effects on their future plans and financial security.
The sentencing judge acknowledged that there was no evidence of the appellant or Ms Walker living a lavish lifestyle with the proceeds of their offending. She noted that their respective drug addictions may have explained the use to which the funds were put. In relation to the benefit the appellant received and the seriousness of the offending, she said:
The seriousness of your offending is not mitigated by the bank stepping in to stop you receiving all of the funds you hoped to receive. You put nothing in place to limit your theft. As described by the prosecutor, it was really a matter of calculated risk management. It is unclear how the moneys were split between all parties. Even accepting, as I have, the most favourable basis to you both for the value of the benefit to you, your offending was nevertheless very serious.
While your offending does not involve the more traditional breach of trust type of offending, it is offending that undermines the faith and reliance that the community must place in financial and banking systems to operate in today’s world. The issue of general deterrence is an important consideration in each of your sentences. Many victims have suffered not only financial loss but also a loss of reputation and damage to their health and wellbeing. Some were small businesses, one was a not-for-profit charity, all were likely to be easy targets, no doubt it being too burdensome to have better cyber security in place.
The judge imposed a sentence for each group of offending, by category. She described the offending, which was sustained over approximately 18 months, as not isolated and as systematic. The appellant was entitled to a sentencing discount of up to 15 per cent for Counts 1-19 and up to 10 per cent for Counts 20 and 21. The judge considered that imprisonment was the only appropriate sentence and indicated the following starting points and reductions for the pleas:
In relation to the District Court matters for count 1, I start at two years imprisonment, reduced to one year, eight months and 13 days.
In relation to count 2, I start at two years imprisonment, reduced to one year, eight months and 13 days.
In relation to counts 3 through to 9, I start at four years imprisonment, reduced to three years and four months and 25 days.
In relation to counts 10 through to 19, I start at five years imprisonment, reduced to four years and three months.
In relation to counts 20 and 21, I start at two years imprisonment, reduced to one year, nine months and 19 days.
I consider that it is appropriate to make the sentence for count 1 concurrent with the sentence for counts 10 to 19 inclusive.
With respect to count 2, that sentence is concurrent with counts 3 to 9 inclusive.

The total head sentence, therefore, was nine years, five months and 14 days. The judge then reduced that to eight years, six months and 28 days, on account of time already spent in custody and the fact that the appellant had been on strict home detention for a period. She fixed a non-parole period of five years, having regard to the appellant’s lack of offending history, his remorse, the rehabilitation he had undertaken, and the good prospects of further rehabilitation that Dr Lim identified. She declined to either suspend the sentence or to order that it be served on home detention.
The appeal
Counts 10-19
As the respondent accepted, the judge erroneously identified the maximum penalty for each of Counts 10-19, being offences contrary to s 86F(1) of the CLCA, as 10 years. Counsel had advised the judge of the maximum penalty incorrectly. Sub-sections 86F(1)-(3) provide:
86F — Use of computer to commit, or facilitate the commission of, an offence outside the State
(1)     A person who—
(a)     uses a computer in this State to cause (directly or indirectly)—
(i)    unauthorised access to or modification of computer data; or
(ii)     an unauthorised impairment of electronic communication; and
knows that the access, modification or impairment is unauthorised; and
(b)intends, by that access, modification or impairment, to commit, or to facilitate the commission (either by that person or someone else) of, a prohibited act in another jurisdiction (the relevant jurisdiction),
is guilty of an offence.
Maximum penalty: The maximum penalty under the law of this State for an attempt to commit the prohibited act in this State.
(2)     A prohibited act is an act that would—
(a)if committed with intent in the relevant jurisdiction, constitute an offence for which a maximum penalty of life imprisonment or imprisonment for a term of at least 5 years is prescribed; and
(b)if committed with intent in this State, constitute an offence for which a maximum penalty of life imprisonment or imprisonment for a term of at least 5 years is prescribed.
(3)     A person may be convicted of an offence against this section—
(a)whether the prohibited act was to be committed at the time of the conduct to which the charge relates or later; and
(b)even though it would have been impossible in the circumstances to commit the prohibited act.
The prohibited act in respect of each of Counts 10-19 was theft. The maximum penalty for theft is 10 years. By operation of s 270A(3)(c) of the CLCA, the maximum penalty for attempted theft is two-thirds of that maximum, that is, six years and eight months.
As noted above, the judge started with a sentence of five years’ imprisonment with respect to these 10 counts, reduced to four years and three months for the appellant’s pleas. That was on the mistaken premise that each offence carried a maximum penalty of 10 years.
The appellant’s complaint about the excessiveness of this starting point was not limited to the relationship with the mistaken maximum penalty. He also pointed to the structure of the offence, in that by its elements and penalty, it is preparatory to a different intended offence, in this case theft. It is not an element of the offence that there actually be a dishonest dealing in property: the fact that in some cases, the offending facilitated the theft of money does not form any part of the elements. In other instances, there was an attempt to commit theft consequent on the offending, but no money was taken.
To this end, the appellant referred to Mr Jones being sentenced to two years’ imprisonment for the ‘sequence 76’ offending, which he said corresponded with Counts 10-19. While he drew away from any submission dependent on parity reasoning, he submitted that the five-year starting point for Counts 10-19 indicated that the appellant was ‘being sentenced for theft almost by the backdoor’, when the taking of money formed no element of the offence.
The appellant was not to be sentenced for theft in respect of the monies that were not recovered. While it is not necessarily the same thing, it is the case that the sentencing judge had regard to the fact that the victims suffered losses initially, not all of which were recovered by the institutions’ antifraud detection systems. She observed:
At least 23 organisations were targeted. While the full scale of the monetary loss and benefit each of you received cannot be quantified with precision, a total of approximately $1.15 million was initially diverted from various organisations. Antifraud detection systems meant that some of the transactions were never finalised, whereas others were successful and the moneys have never been recovered. The charged offences concern initial losses to the victims of approximately $771,000, of which approximately $518,000 was recovered by antifraud detection systems.
This descriptive passage, accurate as it is but without further explanation, risks the impression that the judge took into account, as elements of the offending, the losses to the victims and benefits to the appellant. It is worth revisiting the statement by Gibbs CJ in R v De Simoni:[3]
If an offender has been convicted of robbery, and the indictment charges that he used actual violence to any person, it is obvious that the trial judge, in imposing sentence, may have regard to the actual violence that was used, notwithstanding that it would also constitute personal violence within s. 393. On the other hand, if the actual violence resulted in wounding, the trial judge should not take the wounding into account unless it has been charged in the indictment, for the wounding is purely a circumstance of aggravation and not an element of robbery simpliciter.
[3] (1981) 147 CLR 383 at 394.
Similarly, in R v Olbrich, the High Court said:[4]
Finally, inquiring about what was done or intended by a person who imported drugs into Australia (apart, that is, from the acts which constitute the importation) will not always be relevant to sentencing that offender for the crime of importation. The offender may have conspired with others to import the drugs; the offender may very well have intended to deal with the drugs in Australia in ways that amount to the commission of other offences in this country. But it would be quite wrong to sentence an offender for crimes with which that offender is not charged.
[4] (1999) 199 CLR 270 at 278-279.
The present situation is a little unusual, in that Counts 10-19 charge preparatory offences only, but the consequences were reasonably well documented, if not precisely clear. It was accepted that several victims sustained losses as a direct consequence of the offending.
In submissions in mitigation of penalty at sentencing, counsel for the appellant explained that in some cases, money was not transferred at all. In others, it went out to an account created by the appellant, but was not able to be accessed until the account was further verified:
So that it goes out, but it’s only a matter of time before it’s going to come back to the lawful owner, but obviously the lawful owner needs to jump through some hoops, as is reflected by those victim impact statements, to show that it was a fraudulent transfer.
Counsel for the appellant at sentencing then referred to Modra v The Queen[5] as giving some guidance about approaching loss. That case concerned one count of theft, contrary to s 134 of the CLCA, and five counts of deception, contrary to s 139(b). However, it is an element of the offence of deception that the person ‘causes a detriment to the person subjected to the deception or a third person…’. Section 86F(1) has no comparable element. Nevertheless, the appellant’s counsel at sentencing accepted the relevance of the fact that the appellant derived a financial advantage. He submitted, having referred to Modra:
So, in short, I don’t submit that the overall amount is irrelevant by any stretch, but that ultimately Mr Lees was thinking he was going to get a lot less and indeed he did get a lot less. That was then shared, in part, with Ms Walker for the offending to which she’s pleaded guilty and shared with Mr Jones as well.
[5] [2021] SASCA 88.
It may be quite understandable that the Director did not charge theft in this case. Notwithstanding the concession at the plea that the appellant did receive money from the scheme, theft might have been difficult to prove. Section 86F(1) is clearly designed to create an offence that avoids that difficulty in the arcane arena of computer hacking, with the likely attendant difficulties of tracing the destination of monies illicitly removed from accounts. It does so by creating a standalone preparatory offence. The corollary of this is that any actual, consequent theft is not an element of the offending.
In the circumstances of the submissions made in mitigation of penalty, it is unsurprising that the sentencing judge referred to the losses in her sentencing remarks in the way that she did. It is not necessary to determine whether this amounted to error, given the approach taken by counsel and the (related) conceded error in the identified maximum penalty.
For the purposes of the primary issue arising on this appeal, however, it is helpful to identify the correct sentencing approach. Where:
·a person is sentenced for an offence contrary to s 86F(1); and
·there is evidence at sentencing or even a concession that the person also committed a prohibited act within the meaning of s 86F(2), that being the intended prohibited act in the contemplation of the offence committed; but
·the person has not been convicted of the identified prohibited act;
the sentencing court should identify clearly that the identified prohibited act does not form part of the offending in respect of which the sentence is imposed.
However, taking the present case, the fact that the offending the subject of the pleas did not extend to theft does not mean that the sentencing exercise should be carried out in isolation from an understanding of the circumstances and impact of the offending. That understanding may still inform the seriousness of the offending without breaching the principle articulated in R v De Simoni.
The distinction may here seem chimerical, not least in circumstances where the Victim Impact Statements of those who actually lost money as a consequence of the offending the subject of these counts detail genuine economic hardship, stress, embarrassment and emotional trauma in consequence not just of the strict acts charged, but of the thefts that then followed. As Doyle JA observed in Hassan v The Queen:[6]
In some cases there may be a degree of difficulty, and perhaps artificiality, in determining where the circumstances of the offending end, or must otherwise be ignored, on the basis that to take them into account would be to punish the offender for an offence of which he or she has not been convicted. In the present case, the R v De Simoni principle operated to prevent the appellant being punished for unlawfully entering the victim’s home knowing that (or being reckless as to whether) the victim was at home. But it did not require that the sentencing judge ignore that the assault took place in the context and circumstances I have described.
(Footnote omitted)
[6] [2022] SASCA 56 at [66].
Similarly, in the present case, the appellant was not to be punished for theft of the monies that were taken through the facilities that the offending created. However, money was diverted, much of it stopped or recovered, and some lost. These facts and their broader impact can properly be seen as surrounding circumstances that expose the serious and sustained nature of the offending as charged and its capacity to cause real harm.
The appellant also took issue with the judge’s description of the offending as part of a ‘sophisticated’ hacking scheme. He submitted that the nature of the offence created by s 86F(1) necessarily contemplated sophistication; this was not a descriptor capable of rendering the instant offending more serious. This was not a persuasive submission; it is conceivable that, for example, an unauthorised and opportunistic alteration of a stored password on an iPhone may in certain circumstances come within the contemplation of the section. Otherwise, the concept of ‘sophistication’ might go to the complexity of planning and research, or the initial effort in writing code which can then be deployed repeatedly with little effort. An offender who simply buys and deploys a hacking program written by someone else may offend with little demonstrated sophistication.
The judge’s description of the course of offending in the present case, of which the charged counts were representative, as ‘a sophisticated and large-scale hacking scheme’, was apt.
The offending the subject of Counts 10-19 was serious and sophisticated. It was preparatory in nature. The maximum penalty for each count was six years and eight months. The enrichment that the appellant ultimately obtained and the losses and other impacts that the victims suffered did not constitute elements of the offence. However, these matters were to be borne in mind as informing the seriousness of the actual offending, together with all the surrounding circumstances, including the fact that some counts resulted in no enrichment or loss.
Counts 3-9
Each of Counts 3-9 was an offence of dishonest dealings with documents, contrary to s 140(4) of the CLCA. That sub-section, which appears in Part 5 of the Act, provides:
(4)A person is guilty of an offence if the person dishonestly engages in conduct to which this section applies intending—
(a)     one of the following:
(i)to deceive another, or people generally, or to facilitate deception of another, or people generally, by someone else;
(ii)to exploit the ignorance of another, or the ignorance of people generally, about the true state of affairs;
(iii)to manipulate a machine or to facilitate manipulation of a machine by someone else; and
(b)     by that means—
(i)    to benefit him/herself or another; or
(ii)     to cause a detriment to another.
Maximum penalty:
(a)     for a basic offence—imprisonment for 10 years;
(b)     for an aggravated offence—imprisonment for 15 years.
Section 130 of the CLCA defines ‘benefit’ for the purposes of Part 5 to include ‘a benefit of a proprietary nature’ and ‘a financial advantage’. The same section defines ‘detriment’ as including ‘a detriment of a proprietary nature’ and ‘a financial disadvantage’.
As identified above, the conduct the subject of these counts constituted making false applications for accounts at various financial institutions. The object of the intention to deceive in each case was a bank.
The appellant submitted that it is not clear what intended benefit formed the element of these offences. Having regard to the definitions in s 130, the only benefit accruing at that time could have been the proprietary benefit of ownership of an empty bank account. The appellant submitted that if this was the intended benefit, where there had been no material loss, and where no material benefit accrued, then the offending was not serious. It followed that a starting point of four years’ imprisonment was manifestly excessive, especially having regard to his personal circumstances. He further submitted that to make the sentence for this group of offending wholly cumulative on that for Counts 10-19 contributed to the overall manifest excess of the sentence.
The appellant referred to Stewart v Police,[7] where a magistrate imposed a sentence of nine months’ imprisonment for one count of falsifying a document with the intention to deceive another and thereby to obtain a benefit for himself, contrary to s 140(4) of the CLCA and one count of unlawful possession of identification documents, contrary to s 41(1) of the Summary Offences Act 1953 (SA). The offence contrary to s 140(4) involved the appellant filling out a Westpac deposit slip in a fake name to deposit a cheque in an account he had previously opened in that name, so as to make a cash withdrawal.
[7] [2010] SASC 28.
White J considered that the sentence of nine months for those two offences was very high. He ultimately set aside the sentence on the basis that the magistrate had made a process error and imposed a new sentence of three months. In the course of his reasons, he made some observations about certain other cases and the utility of comparisons:[8]
In support of the submission that the sentence is too high, the appellant’s counsel referred to two authorities involving a consideration of sentences imposed for the offences of dishonest dealing. In Thai v Director of Public Prosecutions (No 3),[9] this Court allowed an appeal against sentence and ordered that a sentence of three years of imprisonment be suspended. The appellant in Thai had been sentenced for 15 contraventions of s 140(4) of the CLCA. Those offences were part of a continuing course of conduct committed over a period of eight months involving the falsification of cheques. As a result, the offender had obtained some $68,000, but if his plans had succeeded, he would have obtained more than $160,000. The sentencing Magistrate had imposed a sentence of three years imprisonment with a 14 month non-parole period and had refused to suspend it. The appellant had not challenged the sentence of imprisonment itself but submitted successfully that the sentence should have been suspended.
In Police v Wang[10] this Court refused, on a prosecution appeal, to interfere with an effective sentence of four months imprisonment imposed for 11 contraventions of s 140(4). The contraventions involved the provision of false documents in relation to home loan applications for amounts totalling some $200,000. Although David J considered the sentence merciful, he did not regard it as manifestly inadequate.
A comparison of the circumstances of one case with another is notoriously difficult. No two cases are exactly alike. Further, it is very difficult for this Court to be fully aware of all the matters taken into account by a previous court when sentencing an earlier offender. It is for this reason that comparison with earlier decisions is generally unhelpful. However, to the extent that the decisions in Thai and Wang do provide assistance, they tend to confirm that the present sentence is very high.
(Footnotes in original)
[8] Stewart v Police [2010] SASC 28 at [11]-[13].
[9] [2009] SASC 97.
[10] [2007] SASC 228.
The appellant submitted that these comparisons, limited in utility as they are, sufficiently demonstrated that a starting point of four years for seven counts of offending contrary to s 140(4), in circumstances where the offending did not even progress as far as had the offending in Stewart, was manifestly excessive.
In each of Counts 3-9, the appellant made a false application for a bank account, intending to deceive the bank. By that means, in each case, he intended to create a financial benefit for himself. The entire context of the offending allows an inference that the nature of the intended benefit lay in the securing of an effectively anonymised, and therefore more protected, receptacle for funds he intended to obtain dishonestly in the future. As counsel for the respondent submitted, this was part of a broad, dishonest scheme of offending. To look at the mere creation of the false accounts in isolation from the rest of the scheme would be erroneously artificial.
In the circumstances of the entire scheme, however, and having some regard to the comparative sentences identified above, a starting point of four years’ imprisonment for these seven counts was severe. Given the conceded error with respect to Counts 10-19, and the approach we take on resentencing, below, it is not necessary to determine whether it is manifestly excessive.
The appellant accepted that Counts 3-9 did not relate directly to any of the other offending charged. However, he submitted, relying on Pearce v The Queen,[11] that if these counts were viewed as preparatory to future defalcations of the type that did occur, then there should be a considerable degree of concurrency between this group of offending and that of Counts 10-19.
[11] (1998) 194 CLR 610.

This submission reflects, after a fashion, the above observation that Counts 3-9 should not be viewed in isolation from the broader scheme of offending. Having said that, we do not accept that it was an error not to incorporate an element of concurrency in sentences for the two groups of offending. There is nothing to suggest that Counts 3-9 had any direct relationship with Counts 10-19. They were, in essence, distinct criminal features of an overall scheme. In any event, the observation by Wells J in Attorney-General (SA) v Tichy remains apposite:[12]
It is both impracticable and undesirable to attempt to lay down comprehensive principles according to which a sentencing judge may determine, in every case, whether sentences should be ordered to be served concurrently or consecutively… The practice of imposing either concurrent or consecutive sentences cannot avoid creating anomalies, or apparent anomalies, from time to time. What must be done is to use the various tools of analysis to mould a just sentence for the conduct of which the prisoner has been guilty. Where there are truly to or more incursions into criminal conduct, consecutive sentences will generally be appropriate. Where, whatever the number of technically identifiable offences committed, the prisoner was truly engaged upon one multi-faceted course of criminal conduct the judge is likely to find concurrent sentences just and convenient. There are dangers in each course.
[12] Attorney-General (SA) v Tichy (1982) 30 SASR 84 at 92-93.
Resentencing
Much of the above discussion is framed in terms of the appellant’s complaints of error. However, given the conceded error in the judge’s articulation of the maximum penalty for each of Counts 10-19, the true import of this consideration is to determine whether this Court should conclude that the sentence imposed was in any event appropriate and should not interfere, notwithstanding the error.[13]
[13] Kentwell v The Queen (2014) 252 CLR 601 at [35], [42]-[43].
We consider that 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. We take into account that the thefts themselves were not part of the offending charged, although we bring to account all the surrounding circumstances of these counts as described above.
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, contributes to a conclusion that resentencing is required.
Like the sentencing judge, we propose to proceed under s 26 of the Sentencing Act 2017 (SA). However, pursuant to s 26(2a), it is now necessary to indicate the sentence we would have imposed in respect of each single offence. For all of the reasons set out above, we take the following approach, building in the discounts for the pleas of guilty as recorded by the sentencing judge.
In relation to Count 1, we start at two years’ imprisonment, reduced to one year, eight months and 13 days.
In relation to Count 2, we start at two years’ imprisonment, reduced to one year, eight months and 13 days.
In relation to Counts 3 through to 9, we indicate that in respect of each offence, we would impose a sentence of 12 months’ imprisonment. In one sense, each involved a separate incursion into criminality. However, each also involved similar conduct with a similar motivation. In another sense, all were part of a broader scheme. In any event, because of the substantial overlap in the capacity of the sentence for each count to achieve the objectives of the sentencing exercise, a significant measure of concurrency is warranted. Proceeding pursuant to s 26(1) for this group of offences, we start at three years, reduced to two years, six months and 18 days.
In relation to Counts 10 through to 19, we indicate that in respect of each count, we would have imposed a sentence of three years’ imprisonment. Proceeding pursuant to s 26(1), we start at four years’ imprisonment for these 10 offences, reduced to three years, four months and 24 days.
In relation to Counts 20 and 21, we indicate that in respect of each count, we would have imposed a sentence of one year and six months’ imprisonment. Proceeding pursuant to s 26(1), we start at two years’ imprisonment for these two offences, reduced to one year, nine months and 19 days.
Like the trial judge, we consider that it is appropriate to make the sentence for Count 1 concurrent with the sentence for Counts 10 to 19 inclusive.
Similarly, the sentence for Count 2 is to be made concurrent with Counts 3 to 9 inclusive.
That results in a head sentence of seven years, nine months and one day. We further reduce that 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, we fix a non-parole period of four years. As the sentencing judge observed, there are no proper grounds for the sentence to be suspended or served on home detention. Both the head sentence and non-parole periods are to commence from when he was last taken into custody, on 30 August 2021.