Mac v The The Queen

[2022] NSWDC 177

District Court

New South Wales

Medium Neutral Citation:	Mac v R [2022] NSWDC 177
Hearing dates:	31 March 2022
Date of orders:	31 March 2022
Decision date:	31 March 2022
Jurisdiction:	Criminal
Before:	Neilson DCJ
Decision:	I set aside the non-parole period imposed by the Local Court at Waverley on 9 February 2022, and in lieu thereof I fix a non-parole period of six months, expiring on 13 April 2022. Otherwise, the convictions and sentences are confirmed.
Catchwords:	CRIME – APPEALS – SENTENCE – Severity of sentence – Sentence of imprisonment – Non-parole period.
Legislation Cited:	Nil.
Cases Cited:	Nil.
Texts Cited:	Nil.
Category:	Sentence
Parties:	R – Crown Appellant – Steven Mac
Representation:	Crown Gunter, D. Appellant Hopley, P.
File Number(s):	2021/00292271
Publication restriction:	Nil.
Decision under appeal	Court or tribunal: Local Court of New South Wales Jurisdiction: Criminal Citation: Nil. Date of Decision: 9 February 2022 Before: Milledge LCM File Number(s): 2021/00292271

Judgment

Background

1. HIS HONOUR: This is an appeal against the severity of a sentence passed by Magistrate Milledge sitting in the Local Court at Waverley on 9 February 2022. Her Honour sentenced the appellant to an aggregate sentence of two years’ imprisonment and, obviously finding special circumstances, fixed a non-parole period of seven months. The non-parole period expires on 13 May 2022.

2. The appellant was charged with five offences. To each of those he pleaded guilty. The first offence was taking and driving a conveyance without the consent of the owner. For that offence, her Honour imposed an indicative term of six months’ imprisonment. The second offence was dishonestly obtaining a financial advantage by deception. He established a fraudulent “Ladbroke’s” betting account in the name of Mr Zhengnan Shan, and deposited that account $20,050.00 which he had dishonestly obtained from his former employer, identified in the Court Attendance Notice as Mr Petar Nachev, but it would appear from the fact sheet that Mr Nachev is either the owner, or a principal, of a dealership called “Capital Honda” located in the Australian Capital Territory. Her Honour have an indicative sentence of nine months imprisonment.

3. The third offence to which the offender pleaded guilty is another charge of dishonestly obtaining a financial advantage by deception. Again, her Honour made an indicative sentence of nine months’ imprisonment. The deception pleaded in the Court Attendance Notice was that he established a fraudulent “Neds” betting account in the name of Mr Zhengnan Shan and deposited therein $19,275.00 which had been dishonestly obtained from his former employer, Mr Petar Nachev/”Capital Honda.” At the time that the offender was apprehended by the police, there was no money left in either the “Ladbroke’s” or the “Neds” betting accounts.

4. The two further charges were of possessing identity information with the intention of committing or facilitating the commission of an indictable offence, namely, dishonestly obtaining a financial advantage by deception. One set of identity documents was a driver’s licence and a Medicare card of a gentleman residing in Curtin, in the Australian Capital Territory. The other set of identity documents was a driver’s licence and a Medicare card of another gentleman residing in Downer, in the Australian Capital Territory.

5. It would appear that those identity information cards were used to obtain the fraudulent betting accounts with “Ladbroke’s” and “Neds”. Her Honour gave an indicative sentence of nine months for each of those offences, although in accordance with principle, they should probably have been wholly concurrent with the two other offences to which they related, that is, the sequence 2 offence and the sequence 3 offence.

6. However, one can see that her Honour added the four sentences of nine months together, together with a sentence of six months which totalled 42 months, but then reduced it to an aggregate sentence of 24 months, which really means the two sentences for dishonestly obtaining financial advantage by deception, plus the take-and-drive a conveyance.

7. The circumstances in which the offending occurred are relatively straightforward. At the time that the appellant committed these offences he was 36 years old. He is still of that age. He told me from the witness box that he had commenced gambling at the age of about 20, and that he acknowledges that he developed a gambling addiction. He told me that the addiction had become serious over the last five to six years.

8. It would appear that the appellant had been working for nearly a decade for the motor dealership in Canberra, which is identified in the Facts Sheet as “Capital Honda”, which was referred by the appellant at Lennox Motors. He had worked himself up in that employment. However, he stole from his employer a vehicle which had been sold to his employer by Mr Zhengnan Shan, and that was the vehicle that he was driving in New South Wales at the time of his arrest.

9. He also used Mr Zhengnan Shan’s name to open the fraudulent betting accounts and probably used the other identity documents to verify his identity in opening the fraudulent betting accounts. He told me that all the betting occurred in New South Wales so that the offences were committed in this State.

10. The offender frankly conceded to the police, and frankly conceded in Court, that when he took the car and the money from his employer, he decided to escape from the Australian Capital Territory and move to New South Wales. He was found asleep in the stolen vehicle at the time that he was apprehended by the police. He made full and frank admissions of his unlawful activities and also the reason that he had done so. He frankly conceded to the police that he was on the run and that he had stolen $100,000 in the Australian Capital Territory, and had spent it all on gambling online.

11. The fact sheet tells me that the Australian Federal Police were in the process of extraditing the appellant to face four charges in the Australian Capital Territory. As a result of his being sentenced by her Honour, the appellant has now spent over five months in prison.

12. This, in my view, would have been an appropriate case for the imposition of an Intensive Corrections Order (“ICO”). In particular, if an ICO had been imposed, Community Corrections may have been able to direct the appellant to specialised gambling rehabilitation services, to specialised psychological care and required him to enrol himself in Gamblers Anonymous. That may have been more effective than a gaol sentence. The appellant has been able to do one addiction program in custody. That was a general addiction program which included addiction to alcohol and illicit drugs, which are not part of the appellant’s addictions.

13. The appellant, when released from custody, wishes to return to live with his parents at Wetherill Park and work for them in their grocery shop at Cabramatta. I am sure that the offender realises that, because of his breach of trust with his former employer, many avenues of employment will now not be open to him. It is imperative that he manages to overcome his gambling addiction. I do not, however, intend now to impose an ICO, bearing in mind that the appellant has been in custody since 14 October 2021. Even under the sentence passed by the learned magistrate he is due to be released on parole on 13 May 2022, that is, in roughly six weeks’ time.

14. I have reached the view that the appropriate mechanism in these circumstances is to allow the appeal by reducing the non-parole period to six months so that the appellant will be released on parole on 13 April 2022, that is, in a fortnight’s time.

15. For those reasons, I set aside the non-parole period imposed by the Local Court at Waverley on 9 February 2022, and in lieu thereof I fix a non-parole period of six months, expiring on 13 April 2022. Otherwise, the convictions and sentences are confirmed.

Decision last updated: 26 May 2022