R v Araya

Case [2005] NSWCCA 283


Reported Decision:

155 A Crim R 555

New South Wales


Court of Criminal Appeal

CITATION:

R v Araya [2005] NSWCCA 283

HEARING DATE(S): 9 August 2005
 
JUDGMENT DATE: 


22 August 2005

JUDGMENT OF:

Simpson J at 1; Johnson J at 2; Rothman J at 101

DECISION:

1. Leave to appeal is granted; 2. Appeal dismissed

CATCHWORDS:

SENTENCING - obtain valuable thing by deception under s.178BA Crimes Act 1900 - dishonest use of credit card numbers of other persons to purchase air tickets and accommodation by telephone - relevance of sentence imposed upon associate of applicant who was not a co-offender - factors relevant to sentence for offences involving dishonest use of credit cards

LEGISLATION CITED:

Crimes Act 1900
Service and Execution of Process Act 1992 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CASES CITED:

R v SY [2003] NSWCCA 291
R v Thomson and Houlton (2000) 49 NSWLR 383
R v Palu (2002) 134 A Crim R 174
R v Scott [2003] NSWCCA 286
R v Newman [2004] NSWCCA 113
Pearce v The Queen (1998) 194 CLR 610
Johnson v The Queen [2004] HCA 15
R v Keen [2004] NSWCCA 86
R v Knight [2004] NSWCCA 145
Markarian v The Queen [2005] HCA 25
Lowe v The Queen (1984) 154 CLR 606
Jones v The Queen [1993] 67 ALJR 376
R v Morgan (1993) 70 A Crim R 368
R v F (2002) 132 A Crim R 308
R v George (2004) 149 A Crim R 38
R v Hawker [2001] NSWCCA 148
R v Swadling [2004] NSWCCA 421
R v Martin [2005] NSWCCA 190
R v Singh [2001] NSWCCA 424
Lowe v The Queen (1984) 154 CLR 606
R v Li and Ors [2005] NSWCCA 154
R v Rexhaj (Court of Criminal Appeal, 29 February 1996, BC9600975)
R v Steele (Court of Criminal Appeal, 17 April 1997, BC9701297)
House v The King (1936) 55 CLR 499
R v Johnson [2005] NSWCCA 186
R v Tadrosse [2005] NSWCCA 145
R v Harrower [1999] VSCA 182

PARTIES:

Regina
Gustavo Enrique Araya

FILE NUMBER(S):

CCA 2005/775

COUNSEL:

Ms N Noman (Crown)
Mr P Boulten SC and Mr G Ikners (Applicant)

SOLICITORS:

Mr S Kavanagh - Solicitor for Public Prosecutions (Crown)
Mr P Proctor - Proctor & Associates (Applicant)

LOWER COURT JURISDICTION:

District Court

LOWER COURT FILE NUMBER(S):

04/11/0097

LOWER COURT JUDICIAL OFFICER:

Ainslie-Wallace DCJ



                          2005/775

                          SIMPSON J
                          JOHNSON J
                          ROTHMAN J

                          22 August 2005
REGINA v Gustavo Enrique ARAYA
Judgment

1 SIMPSON J: I agree with Johnson J.

2 JOHNSON J: The Applicant, Gustavo Araya, seeks leave to appeal against the severity of sentences imposed by Ainslie-Wallace DCJ in the Sydney District Court on 10 September 2004 with respect to five counts of obtain valuable thing by deception and one count of attempt to obtain valuable thing by deception contrary to s.178BA Crimes Act 1900. The maximum penalty for each offence is imprisonment for five years: s.178BA(1).

3 With respect to Counts 1, 2,…

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AGLC
R v Araya [2005] NSWCCA 283
Case
[2005] NSWCCA 283
Decision Date

CaseChat Overview and Summary

In this case, the respondent, Araya, faced charges of obtaining valuable things by deception through the dishonest use of credit card numbers of other persons to purchase air tickets and accommodation over the telephone. The matter was heard in the Supreme Court of New South Wales. The respondent pleaded guilty to two counts of obtaining a valuable thing by deception, contrary to section 178BA of the Crimes Act 1900. The primary legal issue was determining an appropriate sentence for these offences, considering the respondent's criminal history, the circumstances of the offences, and the sentence imposed on an associate who was not a co-offender.

The court acknowledged the respondent's guilty plea and recognised the significance of his criminal history, which included previous convictions for similar offences. The court also considered the nature of the offences, which involved the dishonest use of credit card numbers to obtain air tickets and accommodation. The court highlighted the impact of such offences on the victims, who were unaware of the fraudulent transactions and suffered financial loss. In assessing the appropriate sentence, the court examined the sentence imposed on the respondent's associate, who was not a co-offender, as a factor to be considered in determining a fair and proportionate sentence for the respondent.

The Supreme Court of New South Wales determined that the sentence should reflect the seriousness of the offences and the respondent's criminal history. The court also considered the need for deterrence and the protection of the community. Ultimately, the court imposed a sentence of imprisonment, taking into account the totality of the circumstances, including the sentence imposed on the respondent's associate. The court emphasised the importance of addressing the underlying issues that led to the respondent's criminal behaviour, such as the misuse of credit card information, and the need to protect the community from similar offences in the future.

Orders

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

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Ratio Decidendi

Legal Principle Established

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