Police v Jim, Keat, Sim

[2008] NSWLC 25

Local Court of New South Wales

CITATION:	Police v Jim, Keat, Sim [2008] NSWLC 25
JURISDICTION:	Criminal
PARTIES:	Police Jin Keat Sim
FILE NUMBER:	H-35149730 ; H-35460876 ; H-35878243
PLACE OF HEARING:	Wagga Wagga Local Court
DATE OF DECISION:	12/15/2008
MAGISTRATE:	Magistrate P Dare
CATCHWORDS:	Credit Card fraud – Identity Theft - Foreign Nationals – Indicia of Organised Crime - Relevance of Possible Deportation on Imposition of Sentence – Only full-time custody appropriate – Principles of Totality - Partial Cumulation of Penalty – Importance of Deterrence – Special Circumstances – No “evidence” of Remorse.
LEGISLATION CITED:	Crimes Act, 1900 – S. 93T (1); S. 300 (2); S. 302; S. 527C(1)(a).Crimes (Sentencing Procedure) Act, 1999. S. 3A; S. 5; S. 21A (3) (i); S. 22 (1); S. 50. Criminal Procedure Act, 1986. S. 267 (2).
CASES CITED:	Cahyadi v Regina (2007) 168 A Crim R 41. De Simoni v The Queen (1981) 147 CLR 383. Markarian v Regina (2005) 215 ALR 213. Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen (1998) 194 CLR 610 Regina v Araya [2005]NSWCCA 283 Regina –v- Barlow [2008] NSWCCA Regina v Chapman (1971) 1 NSWLR 544 Regina v Chi Sun Tsui (1985) 1 NSWLR 308 Regina v Chu (Unrep) 16/10/98, NSWCCA Regina v Clissold [2002] NSWCCA 356 Regina v Close (1992) 31 NSWLR 743 Regina v Cook [1999] NSWCCA 234 Regina v Doan (2000) 50 NSWLR 115. Regina v Dodd (1991) 57 A Crim R 349 Regina v El-Hayek (2004) 144 A Crim R 90 Regina v Falzon & Pullen (Unrep.) 20/2/1992, NSWCCA Regina v Fidow [2004] NSWCCA 172 Regina v Geddes (1936) 36 SR (NSW) 554 Regina v Halabi (Unrep.) 17/2/92, NSWCCA Regina v Harrower [1999] VSCA 182 Regina v Huang (2000) 113 A Crim R 386 Regina v Hull (1969) 90 WN (Pt.1) (N.S.W.) 488 Regina v Ibrahim [2005] NSWCCA 43 Regina v King (2004) 150 A Crim R 409 Regina v MA (2004) 145 A Crim R 434 Regina v Macaulay (1969) 90 WN (Pt.1) (N.S.W.) 682. Regina v Merrin [2007] NSWCCA 255 Regina v. Mesdaghi (1979) 2 NSWLR 68 Regina v MMK [2006] NSWCCA 272 Regina v Newman & Simpson (2004) 145 A Crim R 361 Regina v Nguyen [2007] NSWCCA 14 Regina v Thompson & Houlton 49 NSWLR 383 Regina v Morgan (1993) 70 A Crim R 368 Regina v O’Neill (1979) 2 NSWLR 582 Regina v Riche (1977) 2 NSWLR 876 Regina v Simpson (2001) 53 NSWLR 704 Regina v Wheeler [2000] NSWCCA 34 Roberts v Regina [2007] NSWCCA 112 Shrestha v The Queen (1991) 173 CLR 48 Starmer v Regina [2008] NSWCCA 27 Vaovasa v Regina [2007] NSWCCA 253
TEXTS CITED:
REPRESENTATION:	Mr D. Barron, Solicitor, for each of the Offenders.
ORDERS:

26

REMARKS ON SENTENCE

Before the Court for sentence are three Malaysian nationals, Ho Pan JIN, Ang Boon KEAT and Tan Chen SIM who entered Australia in August, 2008, on tourist visas. They are charged with a series of offences stemming, principally, from the use or possession of false instruments in the form of Visa Cards, a number of which were used with varying degrees of success to make fraudulent purchases from business houses in Wagga Wagga on 12th November, 2008. They are also charged with offences of Goods in Custody of $2,950.00 in cash and mobile phones as well as Participation in a Criminal Group.

The Charges and the Pleas.

Before embarking on a rehearsal of the facts, it will be helpful to set out in tabular form the charges faced by each Offender.

Offender	H-	Offence
JIN	35149730 / 1	Use False Instrument. S. 300 (2). The Good Guys.
Seq. 2	Use False Instrument. S. 300 (2). Big W.
Seq. 3	Use False Instrument. S. 300 (2). Dick Smith.
Seq. 4	Use False Instrument. S. 300 (2). E.B. Games
Seq. 5	Use False Instrument. S. 300 (2). Leading Edge Electronics.
Seq. 6	Use False Instrument. S. 300 (2). Liquorland.
Seq. 7	Participate in Criminal Group. S. 93T (1).
Seq. 8	Use False Instrument. S. 300 (2). Australia Post.
Seq. 9	Use False Instrument. S. 300 (2). Optus.
Seq. 10	Use False Instrument. S. 300 (2). Coles Limited.
Seq. 11	Use False Instrument. S. 300 (2). South Wagga Newsagency.
Seq. 12	Use False Instrument. S. 300 (2). South Wagga Newsagency.
Seq. 13	Use False Instrument. S. 300 (2). South Wagga Newsagency.
Seq. 14	Have False Instrument with Intent. S. 302.
Seq. 15	Have False Instrument with Intent. S. 302.
Seq. 16	Have False Instrument with Intent. S. 302
Seq. 17	Have False Instrument with Intent. S. 302.
Seq. 18	Have False Instrument with Intent. S. 302.
Seq. 19	Have False Instrument with Intent. S. 302.
Seq. 20	Goods in Custody. S. 527C(1)(a). $2,950.00.
Seq. 21	Goods in Custody. S. 527C(1)(a). Samsung mobile phone
KEAT	H-35460876 Seq. 1	Participate in Criminal Group. S. 93T (1).
Seq. 2	Have False Instrument with Intent. S. 302.
Seq. 3	Goods in Custody. S. 527C(1)(a). $2,950.00.
Seq. 4	Goods in Custody. S. 527C(1)(a). Coles Myer gift card and Nokia mobile phone.
SIM	H-35878243. Seq. 1	Participate in Criminal Group. S. 93T (1).
Seq. 2	Use False Instrument. S. 300 (2). Big W.
Seq. 3	Have False Instrument with Intent. S. 302.
Seq. 4	Have False Instrument with Intent. S. 302.
Seq. 5	Have False Instrument with Intent. S. 302.
Seq. 6	Have False Instrument with Intent. S. 302.
Seq. 7	Have False Instrument with Intent. S. 302.
Seq. 8	Have False Instrument with Intent. S. 302.
Seq. 9	Goods in Custody. S. 527C(1)(a). $2,950.00.
Seq. 10	Goods in Custody. S. 527C(1)(a). Coles Myer Gift Card and Nokia mobile phone.

Each Offender entered pleas of guilty to all Sequences of their respective charges at the first appearance before the Court, being the day of arrest on 12th November, 2008. It seemed to me at the time they were anxious to have their matters dealt with expeditiously so they could be on their way. I allow the full discount for the utilitarian value of the pleas in accordance with the principles in Regina v Thompson & Houlton 49 NSWLR 383. It is not necessary to set out those well-known principles in these Remarks. See also Section 22 (1) Crimes (Sentencing Procedure) Act, 1999.

To illustrate the objective seriousness of the conduct, I set out the various offences and the respective penalties.

Section 93T Participation in criminal groups

(1) A person who participates in a criminal group:

(a) knowing that it is a criminal group, and
(b) knowing, or being reckless as to whether, his or her participation in that group contributes to the occurrence of any criminal activity,


is guilty of an offence.

Maximum penalty: Imprisonment for 5 years.

Section 93S - Definitions – Part 3A, Division 5.

(1) In this Division:

“ criminal group ” means a group of 3 or more people who have as their objective or one of their objectives:

(a) obtaining material benefits from conduct that constitutes a serious indictable offence, or
(b) …
(c) …
(d) …

Section 4 – Definitions

“ Serious indictable offence ” means an indictable offence that is punishable by imprisonment for life or for a term of 5 years or more.

300 Making or using false instruments

(1) …
(2) A person who uses an instrument which is, and which the person knows to be, false, with the intention of inducing another person:
(a) to accept the instrument as genuine, and

(b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

is liable to imprisonment for 10 years.
Section 302 Custody of false instruments

A person who has in his or her custody, or under his or her control, an instrument which is false, and which he or she knows to be false, with the intention that the person or another person will use it to induce another person:
(a) to accept the instrument as genuine, and

(b) because of that acceptance, to do or not do some act to that other person’s, or to another person’s, prejudice,

is liable to imprisonment for 10 years.

The offences pursuant Section 300 and Section 302 are serious indictable offences as defined and the participation of the three Offenders in the commission of that criminal activity attracts the operation of Section 93T.

Section 527C Persons unlawfully in possession of property
(1) Any person who:
(a) has any thing in his or her custody,
(b) …
(c) …
(d) …
which thing may be reasonably suspected of being stolen or otherwise unlawfully obtained, is liable on conviction before a Local Court:
(a) …
(b) in the case of any other thing, to imprisonment for 6 months, or to a fine of 5 penalty units, or both.

General Facts

As is the custom in the Local Court, the matter proceeded by tender of Police Facts Sheets. Mr Allan, Legal Aid Commission Solicitor, who appeared for each Offender at the initial hearing in which the pleas of guilty were entered, raised no objection to any of the material contained within the Facts Sheets, however, in fairness to him he was presented, in a short space of time, with a lot of paperwork and three clients. With more time that he then had available, I have found four instances in the Facts Sheets relating to the Offender JIN referring to offences not the subject of corresponding Sequence numbers. I put those matters out of my mind for the purpose of the sentencing exercise: see De Simoni v The Queen (1981) 147 CLR 383.

Unfortunately, and this is not an uncommon occurrence in cases with multiple charges, the Sequence numbers bore no relationship whatsoever to the order of offences numbered in the Facts Sheets and it fell to me to sort the lot out. That is not my job. Further, proper particularised drafting of charges and the correct averment of the proper entity of ownership is essential and something requiring urgent attention – not only as exemplified in this case, but generally. I will deal with them in Sequence order.

: It will be seen at once that this Offender faces sentence on 21 separate charges, in marked contrast to his co-Offenders. Also, as will be seen a little later, he has a prior, unrelated, and unsuccessful, experience in this same type of activity when arrested at Wollongong within three days of his alleged arrival in the country in August, 2008. His address was given as the Capitol Hotel, 730-742 George Street, Sydney.

Sequence 1: The Offender purchased a Seaco brand Coffee Machine valued at $1,799.00 from the Good Guys Electrical Store using a fraudulent Commonwealth Bank Visa Card No. xxxx-xxxx-xxxx-4623 in the name of Mr David Yong.

Sequence 2: The Offender purchased a JVC brand digital camcorder valued at $562.00 from Big W using a fraudulent Hang Seng Bank Mastercard No. xxxx-xxxx-xxxx-4279 in the name of Mr David Yong.

Sequence 3: The Offender used a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong in an endeavour to purchase an item from Dick Smith Electronics. I say “endeavour” because there is no purchased item averred in the charge, nor its value, and the Facts Sheet makes no mention that I can see of Dick Smith Electronics. This instance may have been the source of one of the many complaints made to alert Police to the activities of the group, however, on the material before me I am none the wiser.

Sequence 4: The Offender purchased a PlayStation 3 game valued at $688.00 from EB Games using a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong.

Sequence 5: The Offender purchased an ASIS Notebook Computer valued at $999.00 from Leading Edge Electronics using a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong.

Sequence 6: The Offender purchased a quantity of alcohol and cigarettes valued at $579.94 from Liquorland using a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong.

Sequence 7: It is alleged, and by his plea of guilty the Offender admits, that he participated in a criminal group comprising himself, Ang Boon Keat and Tan Chen Sim, knowing that it was such a group, and knowing that his participation in that group contributed to the occurrence of criminal activity.

Sequence 8: The Offender purchased stationery and telephone credits to the value of $636.25 from Australia Post, using a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong.

Sequence 9: The Offender used a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong in an endeavour to purchase an item from “Optus staff” (whatever that may mean). Once again, I say “endeavour” because there is no purchased item averred in the charge, nor its value, and the Facts Sheet makes no mention of Optus.

Sequence 10: The Offender used a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong in an endeavour to purchase an item from “Coles staff Sturt Mall” (whatever that may mean). I can take the matter no further because there is no purchased item averred in the charge, nor its value, and the Facts Sheet makes no mention of Coles.

Sequences 11, 12 and 13: The Offender purchased $100.00 of Optus telephone credits on each of three occasions from South Wagga Newsagency using a fraudulent Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong

Sequence 14: The Offender had in his custody a Westpac Visa Card No. xxxx-xxxx-xxxx-9351 in the name of Mr David Yong, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 15: The Offender had in his custody a St George Visa Card No. xxxx-xxxx-xxxx-5554 in the name of Mr David Yong, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 16: The Offender had in his custody a City Bank Visa Card No. xxxx-xxxx-xxxx-3244 in the name of Mr David Yong, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 17: The Offender had in his custody an HSBC Mastercard No. xxxx-xxxx-xxxx-5107 in the name of Mr David Yong, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 18: The Offender had in his custody a Hang Seng Bank Mastercard No. xxxx-xxxx-xxxx-4279 in the name of Mr David Yong, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 19: The Offender had in his custody a Commonwealth Bank Visa Card No. xxxx-xxxx-xxxx-4623 in the name of Mr David Yong, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 20: At the time of the arrest of all three Offenders, a bag containing the sum of $2,950.00 was found in the car in which they were travelling. It is alleged, and by his plea of guilty the Offender admits, this sum of money may reasonably be suspected of being stolen or otherwise unlawfully obtained.

Sequence 21: At the time of his arrest, the Offender had in his custody a Samsung brand mobile e-phone. It is alleged and, by his plea of guilty, the Offender admits, this phone may reasonably be suspected of being stolen or otherwise unlawfully obtained.

As I mentioned at the outset of these Remarks, so far as the offences numbered 5 and 7 in the Facts Sheet allege purchases from Big W, I can find no corresponding Sequence numbers. So, too, the offences numbered 11 and 12 alleging purchases from an “unknown store”. I must, of course, put these out of my mind when dealing with the Offender. According to the Sequences, this Offender made nine fraudulent purchases to an amount of $5,564.19.

Prior Criminal History for Similar Offence.

The Bail Report discloses that on 20th August, 2008, at Wollongong, he pleaded guilty, was convicted and fined $1,000.00 plus $73.00 costs for an offence contrary to Section 300 (2) of the Crimes Act, 1900. I was concerned enough at this entry to request the Clerk of the Court at Wollongong to provide details. The Court File was faxed to me here at Wagga and I have marked it Exhibit 1 on Sentence. It is worthwhile rehearsing the details of this offence because the Offender’s conduct plus the explanation he there gave to the authorities is particularly relevant on sentence for the present offences.

The Facts Sheet tendered on sentence before the Magistrate disclosed that on 20th August, 2008, the Offender attempted to purchase an “Asus” brand laptop computer at the Wollongong Branch of Myer by use of a fraudulent Westpac Mastercard No. xxxx-xxxx-xxxx-8928 in the name of Mun Jin Chan. The staff member concerned sought authorisation of the card by phone. Whilst waiting for the authorisation, the Offender appeared to become agitated and ran off without the laptop. Security was summoned with the Offender being chased and apprehended. He was found to be in possession of three mobile phones, one Westpac Master Card, one New South Wales Driver’s Licence in the name of Mun Jin Chan, one Malaysian passport No. A-xxxxxx61 in the name of Jin Pang HO, a Malaysian Driver’s Licence in the name of Jin Pang HO and $460.80 in cash. He took part in a recorded interview.

The following is extracted from the Facts Sheet tendered to the Court on sentence:

The Accused is a Malaysian National. He entered Australia on Monday 17th August, 2008 and was due to fly out back to Malaysia on Sunday 24th August, 2008. He has no means of income whilst in Australia. The Accused stated he initially arrived here for a holiday, however, this does not appear to be correct…(He) arrived in Australia from Kuala Lumpur on Sunday 17th August, 2008, via Jetstar Airways … arriving about 6.10am

During the interview the Accused stated that on Monday evening (I interpolate here that this is Monday 18th August, 2008, the day after his arrival from Malaysia) he went for a walk around China Town Sydney. There he met a male who informed him that he could make a lot of money in one week to take home to Malaysia. He stated that he gave the male a passport-size photo of himself. The following evening the Accused met the unknown male at Starbucks behind the Capitol Hotel in Sydney and he gave him a Westpac Master Card No. xxxx-xxxx-xxxx -8928 in the name of Mun Jin CHAN and a New South Wales Driver’s Licence in the same name but bearing the Accused’s photo. The Accused stated that the male gave the Accused a mobile phone and (he) will be contacted.

About 2pm on Wednesday 20th August, 2008, the Accused travelled to Wollongong by train and met up with an Asian male along Burelli Street, Wollongong, opposite the entrance to the lower level of Myer Department Store. The Accused stated that the Asian male informed him that he must purchase a laptop and enter the store about 4.35pm. He was only to purchase a laptop that was no less than $2,000.00. From this he would earn $500.00 cash. The Accused stated that he was informed that if the sales assistant is on the phone for a while there could be trouble and to leave the store. The Accused stated he was only following directions of the Asian male.

The Offender did not make good use of the leniency shown him by the Magistrate in that he re-offended in the same calculated way, although on a much larger scale, a comparatively short time later at Wagga Wagga. Whether the fine has been paid I do not know.

A Pre-Sentence Report by Shannon Mulligan of the Silverwater Parole Unit dated 9th December, 2008, shows the Offender born on 10th December, 1974. He told the author that he is the middle child and only son. He came to Australia to gain employment so he could support his family financially in Malaysia. He says his parents are unaware of his incarceration but he has advised his sister in Malaysia of his circumstances. He was educated to the equivalent of Year 11 standard in Malaysia and his employment has been mainly in the hospitality industry and manual work. Having arrived in Australia he said he had been employed in the hospitality industry as a general hand, although his employment was unregistered as it was in violation of his visa conditions. There is no history or alcohol or illicit drug use but there does seem to be a problem with gambling. The Offender agreed with the Police Facts Sheet. He said he had involved himself in the offences for financial gain due to limited funds being available to him from his employment. He has been assessed as unsuitable for both Community Service and Periodic Detention for reasons of deportation upon release from custody.

This Offender stands for sentence on four charges. His participation in the criminal group, at least so far as 12th November, 2008, is concerned was that of driver and repository for the goods obtained. His address was given as City Backpackers, Melbourne.

Sequence 1: It is alleged, and by his plea of guilty the Offender admits, that he participated in a criminal group comprising himself, Ho Pang Jin and Tan Chen Sim, knowing that it was such a group, and knowing that his participation in that group contributed to the occurrence of criminal activity.

Sequence 2: The Offender had in his custody a Commonwealth Bank Key Card No. xxxx-xxxx-xxxx-3728 in the name of Boon Keat Ang, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 3: At the time of the arrest of all three Offenders, a bag containing the sum of $2,950.00 was found in the car in which they were travelling. It is alleged, and by his plea of guilty the Offender admits, this sum of money may reasonably be suspected of being stolen or otherwise unlawfully obtained.

Sequence 4: At the time of his arrest the Offender had in his custody a Coles Myer gift card and a Nokia brand mobile phone. It is alleged and, by his plea of guilty, the Offender admits, these items may reasonably be suspected of being stolen or otherwise unlawfully obtained.

It is not alleged that on 12th November, 2008, this Offender made any fraudulent purchases. The Bail Report discloses no prior criminal history in New South Wales.

A Pre-Sentence Report of Mr Ross Atkin of the Silverwater Parole Unit dated 10th December, 2008. reports the Offender as having been born in October, 1976. He is a Malaysian national and the youngest of four children. His parents are aware he is in Australia, but not that he is in custody. The Offender is married and his wife and young son reside in Penang. The wife is aware of his custodial situation. He attended secondary school for 3 years but was vague on the age at which he left. His employment history has been in the areas of waiter, furniture assembler, cook and car salesman. He said he arrived in Australia on 16th August, 2008. There are no reported alcohol or drug issues. He does not consider he has a gambling problem. The Offender does not dispute the offences and says he accepts responsibility for his actions. He is unsuitable for Community Service or Periodic Detention due to his immigration status.

This Offender stands for sentence upon 10 charges. His participation in the criminal group, at least so far as on 12th November, 2008, is concerned included purchasing items with a fake/altered Mastercard. His address was given as Backpakers Hostel, Melbourne.

Sequence 1: It is alleged, and by his plea of guilty the Offender admits, that he participated in a criminal group comprising himself, Ho Pang Jin and Ang Boon Keat, knowing that it was such a group, and knowing that his participation in that group contributed to the occurrence of criminal activity.

Sequence 2: The Offender purchased 2 Ipod touch phones to the value of $796.00 from Big W using a fraudulent Hang Seng Mastercard No. xxxx-xxxx-xxxx-4762 in the name of Stain Tan.

Sequence 3: The Offender had in his custody a Citibank Visa Card No. xxxx-xxxx-xxxx-3782 in the name of Stain Tan, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 4: The Offender had in his custody a St George Visa Card No. xxxx-xxxx-xxxx-9490 in the name of Stain Tan, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 5: The Offender had in his custody a Westpac Visa Card No. xxxx-xxxx-xxxx-4360 in the name of Stain Tan, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 6: The Offender had in his custody a Hang Seng Bank Master Card No. xxxx-xxxx-xxxx-4762 in the name of Stain Tan, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 7: The Offender had in his custody a Commonwealth Bank Master Card No. xxxx-xxxx-xxxx-4980 in the name of Stain Tan, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 8: The Offender had in his custody an HSBC Master Card No. xxxx-xxxx-xxxx-2548 in the name of Stain Tan, an instrument that was false and false to his knowledge, with the intention that he would induce others to accept it as genuine and thereby act to their prejudice.

Sequence 9: At the time of the arrest of all three Offenders, a bag containing the sum of $2,950.00 was found in the car in which they were travelling. It is alleged, and by his plea of guilty the Offender admits, this sum of money may reasonably be suspected of being stolen or otherwise unlawfully obtained.

Sequence 10: At the time of his arrest the Offender had in his custody a Coles Myer gift card and a Nokia brand mobile phone. It is alleged and, by his plea of guilty, the Offender admits, these items may reasonably be suspected of being stolen or otherwise unlawfully obtained.

According to the Sequences charged, this Offender made one fraudulent purchase to the value of $796.00. The Bail Report discloses no prior criminal history in New South Wales.

A Pre-Sentence Report under the hand of Mr Peter Poole of the Silverwater Parole Unit, dated 10th December, 2008, reports the Offender as being born in June 1982. He is a Malaysian national arriving in Australia on a tourist visa. He is the second of three children. His family are aware he has been arrested but are said to be unaware of the nature of the offences.

The Offender claimed to have completed secondary school in Malaysia and went on to gain a diploma in computer science. He worked in the field of information technology for 2 years followed by 4 years as a salesman for a motor vehicle dealership. He said he earned a substantial salary in this endeavour, his company was unaware of his arrest and he fears losing his job should they discover his situation. There are no drug or alcohol issues. He admitted occasionally gambling in Malaysia but did not believe it was problematic. The Offender said he came to Australia alone for a holiday and was staying in Melbourne. He said he visited a casino where he lost money and was approached by a person who offered to lend him $5,000.00 if he agreed to undertake the criminal enterprise of purchasing the goods with fake credit cards. He claimed he had only met his two co-offenders several days before being arrested. He said he was told the value of the goods purchased would be deducted from the $5,000.00 he borrowed. He said he regretted becoming involved in the offences. He is unsuitable for both Community Service and Periodic Detention due to his immigration status.

Facts.

I now set out an extract from the Facts Sheet for the present charges:

All three Accused, Tan Chen SIM, Ho Pang JIN and Ang Boon KEAT are Malaysian Nationals. They all recently entered Australia in August, 2008. Shortly after arriving in Australia they visited the Crown Casino in Melbourne. All three Accused lost a large amount of the money they entered Australia with. Whilst in the Casino they were approached by unknown Asian males known only as Kenny and Sim. It is believed that these two persons persuaded the Accused to work for them in an effort to reclaim the money they lost at the Casino and money loaned to them by Kenny and Sim. Police believe that both Kenny and Sim search out persons who have lost money at the Casino. They then loan them money and when that money is lost they recruit these persons into committing fraud offences.

The three Accused have only known each other for a short time. They were introduced to each other by Kenny and Sim. Kenny and Sim organised a false Victorian Driver’s Licence for the Accused JIN. They supplied the Accused with a Victorian-registered motor vehicle PYQ-XX2. They supplied the Accused with thirteen fake credit cards.

On the 11th November, 2008, the three Accused drove in the motor vehicle from Sydney heading to Wagga Wagga. They spent the night in a motel in Gundagai. About 10.00am on 12th November, 2008, the three Accused arrived in Wagga Wagga

The three Accused were arrested by Police about 4.00pm on 12th November, 2008, after complaints received from several retail stores. At the time of the arrest (they) were travelling in Victorian-registered motor vehicle PYQ- XX2. … All three freely participated in an electronic interview …JIN freely admitted to using false credit cards to purchase goods. He stated that he was travelling with SIM and KEAT and that they intended to travel to Albury after Wagga to commit further offences.
In relation to the $2,950.00 in cash, JIN stated $1,000.00 belonged to him. He stated that he had been recruited by an Asian male known only as Kenny. He stated that when the property they purchased was given to Kenny he would receive 11% of the total value.
SIM freely admitted to using fake credit cards to purchase goods. (he) stated he had tried several businesses but the transactions had been declined. Police are unable to determine what premises SIM attended. In relation to the $2,950.00 cash, he said $950.00 belonged to him. He said he had been recruited by an Asian male known only as Kenny.

KEAT freely admitted to driving SIM and JIN around to various locations. He stated he knew SIM and JIN were using fake credit cards to buy goods. In relation to the $2,950.00 he said that $1,000.00 belonged to him. He said he had been recruited by an Asian male known only as SIM (and) he was being paid $250.00 to drive SIM and JIN.

JIN, SIM and KEAT all stated that they owed money to Kenny or Sim and that is why they were committing the offences.

General Observations

I have to say that I regard their explanations as risible. Further, there is a certain manufactured quality about them. This Court is asked to accept that the persons Kenny and Sim (if they exist at all) wait around the Crown Casino in Melbourne seeking out Asian people down on their luck on the gaming tables. They then loan these people more money with which to gamble and, when that is lost, recruit them into crime to repay the debt. The present Offenders - strangers to Kenny and Sim and, supposedly, to each other - were provided with resources to generate a potentially considerable amount of money, being thirteen fraudulent credit cards, a fraudulent Driver’s Licence and a car. None of the Offenders reneged. They were willing and active recruits. And, for people supposedly working off debt by criminal means, their benefactors permitted them to retain their own passports.

My disbelief is strengthened when I see what JIN put before the Magistrate at Wollongong in August, 2008. The sentencing Court was there being asked to accept that on the day after his arrival in Australia and while taking an evening constitutional stroll through Chinatown, he was approached by a perfect stranger and willingly recruited to commit crime. No ifs, no buts. He even provided this stranger with a passport-size photo of himself that he just happened to have upon his person. The next evening he was given the wherewithal for his unsuccessful attempt to purchase a computer which, should we need reminding, included a Westpac Master Card in the name of Mun Jin CHAN and a New South Wales Driver’s Licence in the same name but bearing JIN’s photo.

For my part, so far as JIN is concerned, I do not accept either version of what he told the Police. In my view, the most likely explanation is that he came to Australia from Malaysia as part of a scheme already well in place to commit crimes of the type set out. So, too, in my view, did the Offenders SIM and KEAT. No other explanation makes sense. Their adherence, along with JIN, to the “Kenny and Sim” story strains the bounds of credulity.

All three Offenders were participants in an elaborate scheme of organised crime involving identity theft, the scale and execution of which is breathtaking. It is white collar crime of a high and sophisticated order.

My view that the principal recruitment was done within Malaysia (rather than just by happenstance in Australia) was demonstrated by the appearance of three Malaysian Nationals – Weng Guan LIM, Beng Keat OOI, and Poh Leong TIU (all unemployed and said to be on holidays in Australia) along with two others – Ms Amy Tatt LIM and a Sydney criminal, Birendra SINGH, before Magistrate Murray LCM at Wagga Wagga Local Court on 21st February, 2008. Each was convicted and sentenced to periods of imprisonment for the use and possession of a quantity of fraudulent credit cards as well as Participation in a Criminal Group. They used precisely the same modus operandi as the present Offenders. As was noted in the Facts Sheet before the Court on Sentence – “It is apparent that the five offenders are all involved in the systematic use of fraudulent credit cards to obtain property and associated items … The process is extremely involved, controlled and precise, based upon the documentation seized and the large number of credit cards and persons involved in the enterprise.” The point to be made in mentioning this particular event is simply to demonstrate the enormity of the scheme and the breadth of its application.

Although adopting precisely the same modus operandi, the present Offenders are not co-Offenders with those mentioned above and no question of parity of sentence arises: see Regina v Morgan (1993) 70 A Crim R 368 at 371 per Hunt CJ at CL (Allan J and Loveday AJ in agreement) applied in Regina v Araya [2005]NSWCCA 283 at [67]-[73]. The further point to be made is that the sentences imposed upon them are not to be seen as some sort of benchmark that successive Local Courts ought follow, or that I must follow with the present Offenders.

Matters of General Principle

Objective Seriousness considered.

The correct starting point is a level-headed assessment of the gravity of the objective facts of the offences with which the Court is dealing. It would, in my view, be an error to judge the objective gravity of the conduct here involved by a mere measure of the monetary value involved in Wagga Wagga. There can be no doubting the objective seriousness of these offences – not only by reference to the penalties provided by Parliament but by the elaborate scheme of credit card fraud involving identify theft with all the hallmarks of organised crime. I remind myself of what the Court of Criminal Appeal said in the decision of Regina v Dodd (1991) 57 A Crim R 349. (Gleeson CJ; Lee CJ at CL and Hunt J.) said at p. 354:

“As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place.
Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59 . Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594 .”

The added emphasis on the last sentence of that extract is mine.

Pleas of Guilty

I have already noted I allow the full discount for the utilitarian value of the pleas in accordance with the principles in Regina v Thompson & Houlton 49 NSWLR 383. See also Section 22 (1) Crimes (Sentencing Procedure) Act, 1999. The plea of guilty admits those matters which are the essence of the charge: see R v O’Neill (1979) 2 NSWLR 582 at 588.

Pleading guilty is a factor which, in white collar-type crimes especially, attracts a considerable measure of leniency: Regina v Falzon & Pullen (Unrep.) 20/2/1992, NSWCCA. In Regina v Halabi (Unrep.) 17/2/92, NSWCCA the court said:

“… in white collar crimes the difficulty of detection and the difficulty and expense of investigation and proof means that particular consideration and greater discount should be allowed to an accused person who pleads guilty thus saving the State from the expense of proving the matters associated with the white collar crimes.”

Credit card fraud

In Regina v Araya (2005) 155 A Crim R 555, Johnson J (Rothman and Simpson JJ agreeing), cited Regina v Harrower [1999] VSCA 182 with approval where it was said by Brooking JA at para 10:

“This case shows how someone can systematically abuse the system by fraudulently obtaining a stock of these plastic cards which stand in the place of money, and shows some of the injurious consequences of that abuse. Generally speaking, the kind of conduct disclosed here must attract severe punishment”.

Johnson J said at [98]:

“In my view, this statement has general application to the type of offence illustrated in the present case. Members of the community use credit cards for a very wide range of transactions conducted by telephone. The honest use of credit cards in this way is of great importance. In passing sentence for offences of the present type, general deterrence is an important factor.

Further, where there is a pattern of fraudulent activity by an offender over an extended period using several credit cards and associated paraphernalia (such as fraudulent drivers’ licences), specific deterrence is also an important consideration on sentence.”

The factual situation dealt with in Araya was somewhat different to the present but the matters of principle outlined are, in my view, of equal applicability.

Deterrence

To his Honour’s comments in Araya (above) I add the following on the question of deterrence: One of the purposes of sentencing provided in Section 3A (b) of the Crimes (Sentencing Procedure) Act, 1999 is to prevent crime by deterring the offender and other persons from committing similar offences. Without enough willing recruits prepared to venture abroad to commit crime, even the most elaborate, sophisticated and cunning scheme (as this undoubtedly is) will find it difficult to operate. It is important to demonstrate to those so minded to join the scheme at whatever level, that condign punishment will be imposed upon those apprehended. These Offenders entered this country under the guise of tourists but with the intention and demonstrated, concerted ability to systematically steal from its people. The cost to the community of such a scheme – widespread, persistent and difficult to detect - cannot be understated.

It is, therefore, crucial that a strong message be sent as widely as possible and, hopefully, to where the recruiting is done, that those apprehended will inevitably receive lengthy custodial penalties.

Relevance of Possible Deportation.

In Shrestha v The Queen (1991) 173 CLR 48 per Brennan and McHugh JJ., at [12] their Honours said judicial views as to the appropriatness of making eligibility-for-parole orders for persons facing deportation upon completion of a gaol sentence have differed. They noted a number of cases in New South Wales which held that many aspects of parole were not appropriate in the case of an offender who will be deported – see Reg. v. Chapman (1971) 1 NSWLR 544; Reg. v. Hull (1969) 90 WN (Pt.1) (N.S.W.) 488 and affirmed in Reg. v. Macaulay (1969) 90 WN (Pt.1) (N.S.W.) 682.

But those cases did not lay down a general rule: see Reg. v. Riche (1977) 2 NSWLR 876 at 878. The rejection of the general rule, for which the earlier cases had been thought to be authority, that non-parole periods would not be specified in the case of an alien offender whose crime had rendered him liable to deportation was taken a step further in Regina v. Mesdaghi (1979) 2 NSWLR 68, where it was held that, under Section 4(3) of the (then) Parole of Prisoners Act 1966 (N.S.W.), the prospect of deportation is not an admissible or relevant factor to be considered in the exercise of a discretion to withhold the specification of a non-parole period (at p 71).

In Regina v. Chi Sun Tsui (1985) 1 NSWLR 308, the same view as that expressed in Mesdaghi was embraced by reason of a provision in the Act which declared that parole should not be refused "by reason only that ... the prisoner may become liable to be deported". Street C.J. (at p 311) held that -

" the prospect of deportation is not a relevant matter for

consideration ..., in that it is the product of an entirely

separate legislative and policy area of the regulation of

our society".

Foreign nationals

Any person who comes to Australia specifically to commit serious crime has no justifiable cause for complaint when he or she is incarcerated in this country where the language is foreign to him or her and he or she is isolated from outside contact: Regina v Chu (unrep, 16/10/98, NSWCCA) per Spigelman CJ. See also Regina v Faneite (unrep, 1/5/98, NSWCCA) per Studdert J and Regina v Sugahara (unrep, 16/10/98, NSWCCA) per McInerney J.

However, it has been held that the fact that the prisoner is a foreigner with limited English and has no friends or family who are able to visit will make their imprisonment more harsh than would be the case for the ordinary prisoner. The relatively greater harshness of serving such a sentence, compared with that suffered by the ordinary prisoner, is a material matter to be taken into account on sentencing and given such weight as in all the circumstances it deserves. This is not to treat the offender more leniently than other prisoners but to treat him or her equally: R v Huang (2000) 113 A Crim R 386 per Adams J at [18]–[19]. I will make due allowance for this factor as a special circumstance.

Maximum Penalties

The severity of the penalties prescribed speaks with unmistakable clarity of the seriousness with which Parliament views offences of this nature. It is worth re-visiting the maximum penalties to illustrate the application of Regina –v- Doan (2000) 50 NSWLR 115. Section 93T – Participation in Criminal Groups – carries upon conviction a statutory maximum penalty of imprisonment for 5 years. Section 300 – Making or Using a False Instrument – carries upon conviction a statutory maximum penalty of imprisonment for 10 years. Section 302 – Custody of False Instrument – carries upon conviction a statutory maximum penalty of imprisonment for 10 years. Section 527C – Persons Unlawfully in Possession of Property – carries upon conviction a statutory maximum penalty of imprisonment for 6 months, or to a fine of 5 penalty units, or both.

Section 267 (2) of the Criminal Procedure Act, 1986, provides the maximum penalty that may be imposed by the Local Court for the offences is two years imprisonment. This needs to be read in conjunction with Section 58 of the Crimes (Sentencing Procedure) Act, 1999, which sets numerical limitations on consecutive sentences up to 5 years.

Where an indictable offence is to be dealt with within the jurisdiction of the Local Court, however, the Court is required to assess where the objective seriousness of the offence lies by having regard to the maximum penalty for the offence - not the maximum penalty which may be imposed by a Local Court: see Doan (supra).

When more than one sentence of imprisonment is involved in the sentencing process, the court will invariably need to consider the principle of totality in structuring the sentence. In Mill v The Queen (1988) 166 CLR 59 the High Court said at 63:

“Where the principle falls to be applied in relation to sentences of imprisonment imposed by a single sentencing court, an appropriate result may be achieved either by making sentences wholly or partially concurrent or by lowering the individual sentences below what would otherwise be appropriate in order to reflect the fact that a number of sentences are being imposed. Where practicable, the former is to be preferred.”

In Pearce v The Queen (1998) 194 CLR 610 McHugh, Hayne and Callinan JJ said at [45]:

“To an offender, the only relevant question may be ‘how long’, and that may suggest that a sentencing judge or appellate court should have regard only to the total effective sentence that is to be or has been imposed on the offender. Such an approach is likely to mask error. A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course, as questions of totality.”

Question of Suspended Sentences

In respect of each Offender, I have considered Section 3A of the Crimes (Sentencing Procedure) Act, 1999 – see Regina v MA (2004) 145 A Crim R 434; Regina v King (2004) 150 A Crim R 409 per McColl JA. I have also considered Section 5 of the Act and I am satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate. Having concluded that a custodial sentence is the only appropriate sentence, I then turn to consider whether it should be suspended. In Regina v Zamagias [2002] NSWCCA 17 Howie J. said (paragraph [32]):

[32] “Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is to protect the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate.”

More recently in Regina –v- Barlow [2008] NSWCCA 96 the Court of Criminal Appeal affirmed the decision in Zamagias.

There could be no reasonable argument suggesting that a suspended sentence is not as severe as one that is not suspended. Howie J. in Regina –v- Tolley [2004] NSWCCA 165 said at [22]:

[22] “A suspended sentence has often been described as a ‘Sword of Damocles’ hanging by a thread over the head of an offender while the period of the of the bond is current. However in Regina –v- Brady (1998) ABCA 7 (Alberta Court of Appeal) Fraser CJ and Cote J said at [46]:

‘This metaphor exaggerates the severity of a conditional sentence. Even if a conditional sentence could be equated to a sword, it does not hang by a thread, but by a rope, and the only way that this rope can break is if the offender himself cuts it. And with each passing day of the sentence, the ‘sword’ shrinks until if finally becomes a ‘butter knife’.”

I am not persuaded that any sentences should be suspended. The offences are objectively serious indeed. At the risk of repeating myself, they involve identity theft and the use of technologically sophisticated techniques which resonate with all the hallmarks of organised crime. These were not offences committed opportunistically or on impulse. The offences, in particular those contrary to Section 300 and Section 302 involved systematic dishonesty accompanied by planning, sophistication and repetition for no other reason than financial gain. Further, any penalty other than full-time custody would result in the Offenders, effectively, receiving no punishment at all for their admitted serious criminal behaviour, other than pre-sentence custody, given that they will straight away be deported from Australia.

Cumulation of Penalty

The issue arises as to whether any sentences imposed in respect of the offences with which I am now dealing should be served cumulatively. Cumulation of sentence will be appropriate when wholly concurrent sentences would not take into account the differences in conduct in the various offences with which the Court is dealing, or, put another way, where there are completely different episodes of criminality.

In Vaovasa v Regina [2007] NSWCCA 253 at [15] Justice Howie said

[15] “It has been made clear that, simply because a number of offences arise out of the same incident or course of criminal conduct, it does not follow that concurrent sentences will be appropriate to meet the total criminality involved.”

His Honour referred to the decision in Cahyadi v Regina (2007) 168 A Crim R 41, and continued at [16], “This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative.

In response to a submission that this was simply one ongoing episode of criminality, and accordingly, any sentences imposed should be wholly concurrent, I refer to the judgment of Howie J. (Gyles JA, Fullterton J agreeing) in Regina v Merrin [2007] NSWCCA 255 at [36]:

[36] This Court has been at pains to make it clear that sentences for multiple offences are not made concurrent simply because they arise from a single incident of criminality or because they are of a similar nature and committed in similar circumstances. The statement of Simpson J in Regina v Hammoud (2000) 118 A Crim R 66 concerning the discretion of a sentencing judge in respect of the structuring of offences has to be read subject to what is required in a particular case to reflect the totality of the criminality before the Court. With respect, the Judge has simply failed to approach the structuring of the sentence according to established principle.

In Regina –v- Nguyen [2007] NSWCCA 14 at [12] Howie J. (Sully and Price JJ agreeing) said:-

“It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order that sentences be served concurrently or made, at least partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally Regina –v- MMK [2006] NSWCCA 272.

I have come to the view that there must be some partial cumulation in sentences to be imposed upon the Offenders to address the total criminality involved given the nature and extent of the offending. Also, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: see Regina v Wheeler [2000] NSWCCA 34 at [36]-[37].

I turn to consider the question of “special circumstances”. The finding of special circumstances is a discretionary finding of fact (see Regina v El-Hayek (2004) 144 A Crim R 90 at [103]) and, even if special circumstances are found, the court is not obliged to vary the statutory ratio. The non-parole period must reflect the criminality involved in the offence, including its objective gravity and the need for general deterrence: see Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704 per Spigelman CJ at 718.

Merely because there is present a circumstance which is capable of constituting “special circumstances” does not mean that a sentencing judge is obliged to vary the statutory proportion: Regina v Fidow [2004] NSWCCA 172. The circumstances must be sufficiently special to justify a variation: Regina v Nimmo [2005] NSWCCA 295.

In Fidow Spigelman CJ said at [20]–[22]:

“There is evidence that findings of special circumstances have become so common that it appears likely that there can be nothing ‘special’ about many cases in which the finding is made. Research by the Judicial Commission of New South Wales of the sentences imposed on 2,801 offenders in the Supreme and District Courts during 2002 suggest that Parliament’s intention that the statutory proportion apply unless ‘special circumstances’ exist that justify departure from it, is not being carried out.

The issue of special circumstances often arises in circumstances where there are cumulative terms of imprisonment and sentencers should always have regard to the outcome of any such accumulation. Indeed, it is well established that accumulation of sentences can itself constitute special circumstances: Regina v Simpson (1992) 61 A Crim R 58; Regina v Close (1992) 31 NSWLR 743; Regina v Clissold [2002] NSWCCA 356 and Regina v Ibrahim [2005] NSWCCA 43. However, there does not exist, at common law, a proposition to the effect that accumulation of sentences must automatically give rise to a finding that special circumstances exist: R v Ibrahim (supra).

I am prepared to find “special circumstances” for reasons to which I will shortly refer and because I also propose that there will be some cumulation of penalty for the Offenders.

Remorse as a Factor

Section 21A(2)(i) was amended by the Crimes (Sentencing Procedure) Amendment Act2007, which commenced on proclamation on 1st January, 2008. Where the new section applies, as it does here, remorse will only be relevant as a mitigating factor where the offender has provided evidence that he or she has accepted responsibility for his or her actions, and the offender has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both): see Section 21A (3) (i).

There has been no evidence in stricto sensu placed before me from any of the Offenders expressing remorse for their actions. I note the Offender SIM said in his Pre-Sentence Report that he regretted becoming involved in the offences, however, I am unable to say whether that is reflective of remorse for his actions or for the predicament in which he now finds himself.

I turn now, and perhaps not before time, to the sentences I am to impose.

In relation to each Offender, I find circumstances are sufficiently special for the statutory proportion to be reduced owing to the offenders’ ages; this will, to my knowledge, be their first time in custody: see Regina v Simpson (2001) 53 NSWLR 704 and Regina v Fidow [2004] NSWCCA 172; as foreign nationals imprisonment may be more burdensome than for the average prisoner; and, in the case of the Offender KEAT, the impact of the sentence upon his wife and child – see Roberts v Regina [2007] NSWCCA 112 per Rothman J at [61]. I take into account the period of continuous pre-sentence custody by back-dating the sentences – see Regina v Newman & Simpson (2004) 145 A Crim R 361 per Howie J. Regina v Close (1992) 31 NSWLR 743 at 748; Regina v Cook [1999] NSWCCA 234 at [39]; Starmer v Regina [2008] NSWCCA 27. Pursuant to Section 50 of the Crimes (Sentencing Procedure) Act, 1999, I direct the release of the Offenders to parole at the end of the non-parole period.

SENTENCES.

Tan Chen SIM.

Sequence 1. Participate in a Criminal Group.

The Offender is convicted and sentenced to a total term of 1 year and 3 months with a non-parole period of 9 months to commence on 12th November, 2008 and expiring on 11th August, 2009 with a balance of term of 6 months commencing 12th August, 2009 and expiring on 11th February, 2010.

Sequence 2. Use False Instrument.

The Offender is convicted and sentenced to a fixed term of 9 months to commence on 12th November, 2008 and expire on 11th August, 2009. The sentence is for a fixed term because it is subsumed in other sentences imposed.

Sequences 3 to 5 inclusive. Have False Instrument with Intent.

The Offender is convicted and sentenced on each Sequence to a total term of 1 year and 3 months with a non-parole period of 9 months to commence on 11th August, 2009 and expiring on 10th May, 2010 with a balance of term of 6 months commencing 11th May, 2010 and expiring on 10th November, 2010.

Sequences 6 to 8 inclusive. Have False Instrument with Intent.

The Offender is convicted and sentenced on each Sequence to a total term of 12 months with a non-parole period of 6 months to commence on 11th May, 2010 and expiring on 10th November, 2010 with a balance of term of 6 months commencing 11th November, 2010 and expiring 11th May, 2011.

Sequences 9 and 10. Goods in Custody.

The Offender is convicted and sentenced on each Sequence to fixed terms of 3 months to commence on 12th November, 2008 and expire on 11th February, 2009. The sentences are for fixed terms because they are subsumed in sentences already imposed.

There is a partial cumulation of sentences resulting in a total term of sentence of 2 years. I apply a discount of 30% comprising 25% for the early pleas and 5% for pleas to white-collar type crime. In the result there is a total term of sentence of 1 year, 4 months and 24 days with a non-parole period of 1 year and 18 days commencing on 12th November, 2008 and expiring on 29th November, 2009 and a balance of term of 4 months and 6 days commencing on 30th November, 2009 and expiring on 4th April, 2010: See also Markarian v Regina (2005) 215 ALR 213 per McHugh J., at [65]-[66] citing with approval Jordan CJ., in Regina v Geddes (1936) 36 SR (NSW) 554 at 555-556.

Ang Boon KEAT

Sequence 1. Participate in a Criminal Group.

The Offender is convicted and sentenced to a total term of 1 year and 3 months with a non-parole period of 9 months to commence on 12th November, 2008 and expiring on 11th August, 2009 with a balance of term of 6 months commencing 12th August, 2009 and expiring on 11th February, 2010.

Sequence 2. Have False Instrument with Intent.

The Offender is convicted and sentenced to a total term of 1 year and 3 months with a non-parole period of 9 months to commence on 12th February, 2009 and expire on 11th November, 2009 and a balance of term of 6 months to commence on 12th November, 2009 and expire on 11th May, 2010.

Sequences 3 and 4. Goods in Custody.

The Offender is convicted and sentenced on each Sequence to fixed terms of 3 months to commence on 12th November, 2008 and expire on 11th February, 2009. The sentences are for fixed terms because they are subsumed in sentences already imposed.

There is a partial cumulation of sentence with Sequences 1 and 2 resulting in a total term of sentence of 1 year and 6 months. I apply a discount of 30% comprising 25% for the early pleas and 5% for pleas to white-collar type crime.

In the result there is a total term of sentence of 1 year and 18 days with a non-parole period of 9 months and 13 days to commence on 12th November, 2008 and expire on 24th August, 2009 with a balance of term of 3 months and 5 days commencing on 25th August, 2009 and expiring on 29th November, 2009. : See Markarian v Regina (2005) 215 ALR 213 per McHugh J., at [65]-[66] citing with approval Jordan CJ., in Regina v Geddes (1936) 36 SR (NSW) 554 at 555-556.

Ho Pan JIN

Sequence 7. Participate in a Criminal Group.

The Offender is convicted and sentenced to a total term of 1 year and 3 months with a non-parole period of 9 months to commence on 12th November, 2008 and expiring on 11th August, 2009 with a balance of term of 6 months commencing 12th August, 2009 and expiring on 11th February, 2010.

Sequences 1 to 6 inclusive and 8 to 13 inclusive. Use False Instrument.

The Offender is convicted and sentenced on each Sequence to a total term of 1 year and 3 months with a non-parole period of 9 months to commence on 11th August, 2009 and expiring on 10th May, 2010 with a balance of term of 6 months commencing 11th May, 2010 and expiring on 10th November, 2010.

Sequences 14 to 19 inclusive. Have False Instrument with Intent.

The Offender is convicted and sentenced on each Sequence to a total term of 1 year and 3 months with a non-parole period of 6 months to commence on 10th May, 2010 and expire on 9th November, 2010 with a balance of term of 9 months to commence on 10th November, 2010 and expire on 9th August, 2011.

Sequences 20 and 21. Goods in Custody.

The Offender is convicted and sentenced on each Sequence to fixed terms of 3 months to commence on 12th November, 2008 and expire on 11th February, 2009. The sentences are for fixed terms because they are subsumed in sentences already imposed.

There is a partial cumulation of sentence resulting in a total term of sentence of 3 years and 9 months. I apply a discount of 30% comprising 25% for the early pleas and 5% for pleas to white-collar type crime. In the result, there is a total term of sentence of 2 years, 7 months and 15 days with a non-parole period of 1 year, 11 months and 19 days commencing 12th November, 2008 and expiring on 30th October, 2010, and a balance of term of 7 months and 27 days commencing 31st October, 2010 and expiring on 26th June, 2011: See also Markarian v Regina (2005) 215 ALR 213 per McHugh J., at [65]-[66] citing with approval Jordan CJ., in Regina v Geddes (1936) 36 SR (NSW) 554 at 555-556.

I order that the Offenders’ passports be released from Police custody and into the custody of the Department of Corrective Services to await the Offenders’ release.

P.S. Dare SC

Magistrate.

Wagga Wagga Local Court

15th December, 2008.