R v Araya

[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, 3 (the attempt count), 4 and 6, her Honour imposed a sentence of 18 months’ imprisonment with a non-parole period of 12 months. In relation to Count 5 on the indictment, her Honour imposed a sentence of two years’ imprisonment with a non-parole period of six months.

4 Having determined the sentences to be imposed for each offence, Ainslie-Wallace DCJ turned her mind to the question of concurrence, accumulation and totality. With respect to Counts 1 and 2, the Applicant was sentenced to a period of imprisonment of 18 months to commence on 22 August 2004 and to conclude on 21 February 2006 with a non-parole period of 12 months to expire on 21 August 2005. With respect to Counts 3 and 4, the Applicant was sentenced to imprisonment for 18 months to commence on 22 February 2005 and to conclude on 21 August 2006 with a non-parole period of 12 months to conclude on 21 February 2006. Upon Count 6, the Applicant was sentenced to 18 months’ imprisonment to commence on 22 August 2005 and to conclude on 21 February 2007 with a non-parole period of 12 months to conclude on 21 August 2006. With respect to Count 5, the Applicant was sentenced to a period of two years’ imprisonment to commence on 22 February 2006 and to conclude on 21 February 2008 with a non-parole period of six months to conclude on 21 August 2006.

5 The total effective sentence of imprisonment for all offences was a non-parole period of two years and a total sentence of three-and-a-half years, both to date from 22 August 2004.

Facts

6 An Agreed Statement of Facts was tendered in the sentencing proceedings which revealed the following circumstances.

7 Count 1: On 5 April 2001, the Applicant, posing as a Mr M Hugo, contacted Qantas Holidays Domestic Reservations by telephone and booked airfares from Melbourne to Sydney and return together with two nights’ accommodation at the Quay West Apartments in Sydney. The total cost of the air and land package was $1,373.64. A Visa Card expiring in May 2002 in the name of Miguel Hugo was provided by the offender as a means of payment.

8 Count 2: At the same time on 5 April 2001, the Applicant used the same credit card to book return tickets from Melbourne to Sydney for two children and an adult, the total value of those tickets being $1,169.52. Again, the Applicant used the Visa Card in the name of Miguel Hugo to pay for these items. The credit card number given by the Applicant was valid and belonged to a card issued to another person who had neither purchased the goods nor authorised their purchase on his card.

9 On 6 April 2001, the Applicant attended the reception desk of Quay West Apartments in Sydney and stated his name was Miguel Carlos Hugo. The Applicant handed over a New South Wales driver’s licence in the name of Miguel Carlos Hugo. The driver’s licence bore a photograph of the Applicant.

10 Count 3: On 18 November 2001, the Applicant, identifying himself as Carlos Delacruz, contacted the office of Flight Centre, Carlingford by telephone and spoke with a travel consultant. The Applicant booked airfares for 15 people from Sydney to Melbourne together with coach transfer and accommodation in Melbourne. The Applicant provided a MasterCard number expiring in February 2002 as the means of payment. The travel consultant faxed a credit card authorisation to a fax number provided by the Applicant who signed and returned the authorisation. The travel consultant provided Qantas with these details for payment of $12,612.50. Credit card approval was declined.

11 Count 4: After credit card approval was declined, the travel consultant involved in Count 3 called the Applicant back on one of the telephone numbers supplied by him, and the Applicant provided new MasterCard details for a card expiring in April 2004. The travel consultant again faxed through a credit authorisation to the fax number supplied by the Applicant who signed it and returned it to the consultant. These details were provided to Qantas and were accepted with the entire payment of $12,612.50 being charged to this credit card. The travel consultant also charged the amount of $1,338.60 to this card as a service fee, giving a total charge to the credit card of $13,951.10.

12 The MasterCard details for the declined transaction referred to in Count 3 were for a valid card owned by Mr Mark Williams who had neither made the purchases nor authorised the Applicant to make them. The details for the transaction referred to in Count 4 were those of a Mr John Marx, who did not know that his card number was used and did not authorise such use.

13 At the time of his arrest in the Northern Territory on 20 June 2002, the Applicant had in his possession a New South Wales driver’s licence in the name of Carlos Delacruz. The driver’s licence bore the Applicant’s photograph.

14 Count 5: On 29 May 2002, the Applicant, using his correct name, contacted Qantas Domestic Telephone Sales. He booked a business-class air ticket in his own name for a flight from Sydney to Brisbane later that day. The Applicant provided Visa Card details for a card expiring in November 2002 as the means of payment. The value of the purchase was $502.72. The Visa Card number belonged to a card allocated to Ms Kelly Matthews, who did not authorise the purchase.

15 Count 6: On 17 June 2002, the Applicant, identifying himself as Mr Jason Bina, contacted Qantas Domestic Telephone Sales. He made a booking in the name of Gusto Araya for a return business-class airfare from Sydney to Darwin later that day. The Applicant provided Visa Card details of a card expiring in April 2004. The Visa Card details related to a card held by Ms Rebecca Thompson who had not authorised the purchase. The value of the ticket so purchased was $1,107.84.

16 Upon the execution of a search warrant on 20 June 2002 upon premises occupied by the Applicant and others, the actual airline ticket involved in Count 6 was located in one of the bedrooms. Nearby was a Telstra phone bill in the name of “Juan Carlos Bina” and the fraudulent driver’s licence in the name of Carlos Delacruz which bore the Applicant’s photograph upon it.

17 The total sum involved in the six offences was $18,104.00, none of which has been repaid by the Applicant.

18 The Applicant was arrested in Darwin on 23 June 2002. He was returned to New South Wales pursuant to an order under the Service and Execution of Process Act 1992 (Cth) and was held in custody until his release on bail in this State on 11 July 2002. Accordingly, he spent 19 days in custody in relation to these matters prior to sentence in the District Court.

Subjective Factors

19 The Applicant was born on 23 March 1974. He was aged 27 to 28 years at the time of the offences and was 30 years of age at the time of sentence.

20 According to a pre-sentence report which was before the District Court, the Applicant was born in Argentina and migrated to Australia with his parents and younger brother in 1974. His parents separated when he was nine years old, after which he lived with his father in Canberra whilst his brother resided with their mother in Sydney. The Applicant married when he was 21 years of age. The relationship lasted six years with a son (aged seven years in 2004) being born of the relationship.

21 The Applicant left school in Year 9 and was thereafter employed as a tiler for approximately seven years. Subsequent to that, the Applicant has been self-employed or involved in business ventures on a partnership basis. One such venture is said to have had disastrous financial consequences for the Applicant and was a contributing factor in the breakdown of his marriage.

22 At the time of sentence, the Applicant was a director of his own company, Araya Brothers Constructions, and stated that he earned on average $1,000.00 per week.

23 At the time of sentence, the Applicant was residing with his partner of four years, Ms Marguerita Abdallah, at her father’s home in Rooty Hill.

24 The Applicant has a number of criminal convictions as an adult. On 9 February 1994, he was sentenced at Ryde Local Court on one count of larceny by imposition of a fine of $1,250.00 with an order for compensation of $4,500.00. On 26 June 1997, he was sentenced in the Downing Centre Local Court to a term of four months’ imprisonment upon a charge of possession of a loaded firearm in a public place. On 5 August 1997, an appeal against sentence with respect to this firearm offence was dismissed in the Sydney District Court. On 19 October 1999, the Applicant was fined $500.00 and was disqualified for six months for an offence of driving whilst licence cancelled. On 25 June 2003, the Applicant was sentenced in the Fairfield Local Court with respect to one count of obtain money by deception and was ordered to perform 100 hours’ community service and to pay compensation in the sum of $2,267.00.

25 The learned sentencing judge was informed that the offence of obtain money by deception for which the Applicant was sentenced at Fairfield Local Court on 25 June 2003 was in fact committed on 19 March 2001, a fortnight before Count 1 and using the same driver’s licence and particulars. The Court was informed that the compensation with respect to this offence had been paid by the Applicant.

26 Evidence was given in the Applicant’s case on sentence by Ms Marguerita Abdallah, the Applicant’s partner, and Ms Nance Morgan of the Society of St Vincent de Paul. The evidence of Ms Morgan related to the quality of the Applicant’s work when he performed community service pursuant to the sentencing order made by the Fairfield Local Court in June 2003. Ms Abdallah’s evidence was supportive of the Applicant and stated that “he was going through a very bad patch” and was “quite negative” when she met him in about 1999, but that he had changed greatly since then (Transcript, 3 September 2004, page 5). Ms Abdallah acknowledged that the offences presently under consideration which were committed in 2002 had occurred whilst she was living with the Applicant and that she “had some kind of idea of something” but “didn’t really know what was going on” ((Transcript, 3 September 2004, page 6.10).

Some Findings by the Sentencing Judge

27 The Applicant was arrested and charged on 23 June 2002 with a number of offences, including the six matters presently before the Court. Following committal for trial on 2 February 2004, the Applicant’s matter was listed for trial in the District Court on 24 May 2004. On 24 May 2004, the trial remained listed as a “reserve” trial. After negotiations in furtherance of pleas, on 26 May 2004, the Crown presented a fresh indictment containing only the six counts. The Applicant pleaded guilty before Dodd DCJ with respect to that indictment. The matter was stood over and a pre-sentence report was ordered. In due course, the Applicant came before Ainslie-Wallace DCJ on 3 September 2004 when a hearing proceeded with respect to sentence. Following that hearing, the learned sentencing Judge stood the matter over for sentence on 10 September 2004 when the sentences referred to earlier in this judgment were imposed.

28 Counsel for the Applicant before the District Court (who did not appear in this Court) submitted as follows with respect to the discount factor applicable for the purposes of the plea of guilty (Transcript, 3 September 1994, T7.40):

“… It’s true that it is not an early plea in the generally accepted sense but I do ask that your Honour give credit for its utilitarian value because as I understood it the plea saved the resources of this State a trial that could have gone longer than six weeks.”

In the District Court, the Crown agreed with this proposition (T7.49).

29 With respect to the Applicant’s plea of guilty, Ainslie-Wallace DCJ found (remarks on sentence, 10 September 2004, page 4.5):

“The plea of guilty could not be said to have been entered at a particularly early time, the matter being listed for trial. However, it was agreed that the plea had considerable utilitarian value because of the estimated duration of the trial and the need to call many witnesses to prove the various fraudulently (sic) transactions. I am prepared to discount the sentence which I would otherwise have imposed by fifteen percent.”

30 With respect to the objective seriousness of the offences, the learned sentencing judge said (remarks on sentence, 10 September 2004, page 4.7):

“For the offender it was submitted that none of these offences was particularly serious, indeed they were referred to as being petty and it was submitted taken individually, none would necessarily involve a custodial sentence. I do not accept this argument.
The offender was engaged in [a] continuing course of criminal conduct which involved considerable planning, in the course of which he had access to valid credit card numbers to enable him to perpetrate the fraud. I do not accept that these are petty crimes merely by reference to the amount of money defrauded in each case. In each case, a cardholder’s privacy was violated and I do not suggest that there is evidence that it was the offender who obtained the card details, only that he had access to them and used them freely. The system of payment using credit card details was abused and no doubt the service provider left out of pocket. None of the money defrauded has been repaid by the offender. These matters are particularly serious when they are considered against the background of a previous conviction for the very same offence.”

31 Having determined the appropriate sentence of imprisonment with respect to each offence, her Honour turned her mind to questions of concurrence, accumulation and totality. The Applicant was given credit for the 19 days spent in prison in June/July 2002 by backdating the commencement of the sentence to 22 August 2004 (remarks on sentence, 10 September 2004, page 5).

32 Her Honour found “special circumstances” for the purposes of s.44 Crimes (Sentencing Procedure) Act 1999. In this respect, her Honour referred to the fact that the present sentence would be the Applicant’s first significant period of imprisonment and that some of the sentences were to be partially accumulated on others.

Grounds 1 and 4 – Grounds Relating to the Applicant’s Pleas of Guilty

33 Grounds of Appeal 1 and 4 are in the following terms:

Ground 1 - The learned sentencing Judge gave insufficient weight to the pleas of guilty entered by the Applicant.

Ground 4 – The learned sentencing Judge gave insufficient weight to the timing of the pleas of guilty.

34 In submissions in support of these grounds, Mr Boulten SC and Mr Ikners for the Applicant, referred to the history of the matter before the pleas were entered in the District Court. As was mentioned earlier in this judgment, the original indictment contained further and other counts against the Applicant. Following negotiations with the Crown, the indictment was amended to contain only the six counts to which pleas of guilty were entered. A set of Agreed Facts was prepared and the matter was adjourned from 26 May 2004 for various purposes, including the preparation of a pre-sentence report.

35 The Applicant submitted that he had pleaded guilty to the amended indictment at the first available opportunity. It was contended that her Honour had fallen into error in allowing a discount of 15% only by reference to the utilitarian value of the pleas.

36 Further, Senior Counsel for the Applicant submitted that the learned sentencing Judge did not take into account the Applicant’s contrition and remorse. In this regard, reference was made to the pre-sentence report of Mr John Fulcher dated 5 August 2004 which was before the District Court and which said (pages 2-3):

“He [the Applicant] has expressed what appears to be genuine remorse for his actions given his past achievements and opportunities now available to him. This has been confirmed by his partner who has made it manifestly clear to the offender that she will not tolerate any further aberrant or offending behaviour.
To some extent he tended to minimise the seriousness of the offences by seeing them as ‘victimless’ crimes at the time. Nevertheless, he acknowledged that the considerable amounts of money involved and repetitive nature of the offences are the cause for considerable concern and, as stated, have jeopardised his future plans.”

37 Senior Counsel for the Applicant pointed to the fact that the Applicant’s partner, Ms Abdallah, was said to have confirmed the existence of this “genuine remorse” and that Ms Abdallah had not been cross-examined by the Crown on this aspect in the sentencing proceedings.

38 The Crown submits that no error has been demonstrated in the approach by the learned sentencing Judge to this issue. The Applicant was arrested and charged on 23 June 2002 in respect of a number of offences. These offences included the six offences which are presently relevant. The Applicant was committed for trial on 2 February 2004. The Applicant was arraigned on an indictment that included the relevant six offences amongst others. The trial was listed for 24 May 2004. It was only then that negotiations led to the Applicant offering to plead guilty to an indictment containing these six counts.

39 In these circumstances, the Crown submits that it cannot be accepted that these were pleas at the earliest opportunity or even an early opportunity. Pleas to the six counts, being original arrest charges, could have been entered at any time after arrest: R v SY [2003] NSWCCA 291.

40 The Crown pointed to the submissions made by then Counsel for the Applicant in the District Court which acknowledged that the plea was “not an early plea in the generally accepted sense”, but sought that credit be given “for its utilitarian value”. The Crown submitted that her Honour approached the matter in accordance with this submission and allowed credit for the utilitarian value of the pleas in accordance with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383 at paragraph 160.

41 With respect to the submission now advanced on the Applicant’s behalf with respect to contrition and remorse, the Crown draws attention to the contents of the second paragraph contained in the extract from the pre-sentence report set out in paragraph 36 above. The Crown submits that her Honour made no positive finding of contrition and that the evidence before the District Court did not mandate a finding of contrition. It was emphasised that the value of the pleas of guilty as evidence of contrition was limited by the strength of the Crown case: Thomson and Houlton, at paragraphs 136ff.

42 The Crown submitted that, as the Applicant did not give evidence in the District Court, any assertion of remorse on his part remained untested. The Crown refers to R v Palu (2002) 134 A Crim R 174 where Howie J (Levine and Hidden JJ agreeing) said at 184-185 with respect to pre-sentence reports:

“What weight is to be given to the contents of the report so far as any factual material is concerned is, of course, a matter for the court to assess in the light of the other material before it. …

Observations made by this Court in relation to statements made by offenders to psychiatrists and psychologists apply equally in the case of assertions by an offender contained in a pre-sentence report.

…

A probation officer preparing a pre-sentence report merely questions an offender about the offence because it may reveal some matter about the offender's attitude which is relevant to the primary purpose of the report, that is to indicate matters which might be addressed by the service in aiding in the rehabilitation of the offender and to advise on available sentencing options as required by the provisions of the Crimes (Sentencing Procedure) Act, see for example s 86(4) in respect of suitability for a community service order. The officer does not offer an opinion as to the reliability of what is said. Such comments have little evidentiary value if not supported by other material.”

43 The Crown submits that, in the circumstances of this case, a discount in excess of 15% would not have been warranted even if contrition and remorse had been found by the learned sentencing Judge.

44 I am not satisfied that any error has been demonstrated in the manner in which the learned sentencing Judge had regard to the Applicant’s pleas of guilty in this case. A sentencing Judge is not bound by s.22 Crimes (Sentencing Procedure) Act 1999 or by Thomson and Houlton to give either a discount at all, or one of a particular order. It has been stressed that the range of discount referred to in Thomson and Houlton is a guideline which creates no presumption of, nor entitlement to, a particular discount in a given situation: R v Scott [2003] NSWCCA 286 at paragraph 28; R v Newman [2004] NSWCCA 113 at paragraph 12.

45 The Applicant had been charged with a series of offences including the six counts to which he ultimately entered pleas of guilty. It was open to the Applicant to indicate a willingness to plead guilty to these six matters from an earlier time. It is not suggested that the Applicant gave such an indication before 24 May 2004 being the day upon which his trial was fixed to commence. It was open to her Honour to allow a 15% discount for the utilitarian value of the pleas of guilty given the late timing of the pleas, but having regard to the avoidance of a lengthy trial. In effect, her Honour accepted the submission that was made on behalf of the Applicant in the District Court.

46 No submission was advanced on behalf of the Applicant in the District Court urging a finding in his favour of contrition and remorse and that a further discount should be allowed in that respect. There was no early expression of contrition and remorse by the Applicant. The pleas of guilty alone do not support a finding of contrition and remorse, especially given the strength of the Crown case against the Applicant.

47 Consistent with the principles in Palu, the pre-sentence report alone, would not provide a foundation for such a finding. The fact that the Applicant’s partner, Ms Abdallah, gave evidence and was not cross-examined on this issue does not advance the Applicant’s argument in any material respect. The issue of the Applicant’s contrition and remorse was not touched on in the examination in chief of Ms Abadallah, nor was she asked to confirm the comments which had been attributed to her in the pre-sentence report.

48 I would reject Grounds 1 and 4.

Ground 2 – The Concurrence, Accumulation and Totality Issue

49 Ground of Appeal 2 is in the following terms:

“The learned sentencing judge erred when determining an overall sentence term of custody and subsequently erred when the sentences were set to make up that term.”

50 Counsel for the Applicant commenced his submissions in support of this ground by noting that the sentence with respect to each of Counts, 1, 2, 3, 4 and 6 was one of imprisonment for 18 months with a non-parole period of 12 months. A sentence of imprisonment of two years with a non-parole period of six months was imposed with respect to Count 5 although the sum involved in that offence was only $502.72.

51 The Applicant submits that this difference in approach arose because her Honour had in mind a total sentence of imprisonment for three-and-a-half years with a non-parole period of two years.

52 The Applicant submits that the sentence of two years’ imprisonment for Count 5, involving only the sum of $502.72, was manifestly excessive in the circumstances. It is contended that that error is demonstrated because her Honour was minded specifically to make up a total head sentence of three-and-a-half years’ imprisonment. The Applicant submits that, even if the sentence for Count 5 should have been added to the sentences for Counts 1 and 2, a sentence measured in months rather than years was appropriate in all the circumstances.

53 The Crown submits that her Honour complied with the principle in Pearce v The Queen (1998) 194 CLR 610 where McHugh, Hayne and Callinan JJ said at 624[45]:

“A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of accumulation or concurrence, as well, of course, as questions of totality.”

54 The Crown submits that the overall result does not demonstrate error and that the totality of the criminality was properly reflected in the overall sentence imposed on the Applicant. It has been recognised that there is a level of flexibility in sentencing in accordance with the principles in Pearce: Johnson v The Queen [2004] HCA 15 at paragraph 26; R v Keen [2004] NSWCCA 86 at paragraph 44; R v Knight [2004] NSWCCA 145 at paragraph 31.

55 The Crown submits that her Honour first determined the appropriate sentence for each count before considering issues of concurrence, accumulation and totality. The partial accumulation reflected the fact that the offences were committed on different dates with credit cards of different persons. The Crown contends that the Applicant was engaged in an overall course of criminal conduct by the commission of discrete and independent offences over a 15-month period. Accordingly, the Crown submits, her Honour did not err by grouping the sentences together and making some concurrent and some partially cumulative so as to achieve an ultimate sentence reflecting the total criminality.

56 In respect of Counts 1, 2, 3, 4 and 6, the Crown submits that even though the individual sentences were identical, the periods of accumulation meant that, for these offences, the effective sentence was one of two years and six months with an effective non-parole period of two years. The sentence in respect of Count 5, whilst being one of two years’ imprisonment, was in fact made partly cumulative to the sentence imposed on Count 6 – it commenced six months into the head sentence for Count 6 – which meant that the total sentence for all six offences was increased, as a result, by only one year (to a total of three years and six months). The non-parole period imposed for Count 5 was one of six months and this was made completely concurrent with the head sentences for Counts 3, 4 and 6. It was totally subsumed by the non-parole period in respect of Count 6 and the head sentence for Counts 3 and 4.

57 The Crown submits that the effect of the sentence imposed on Count 5, as a result of the periods of partial accumulation, was that the balance of the term of the sentence was increased by one year with no additional time to be served in custody by way of non-parole period for this offence. The Crown submits that the learned sentencing judge may have achieved this same result in a different manner. However, the ultimate result was well within the available range of sentence. The Crown notes that the lesser non-parole period in respect of Count 5 and the partial accumulation to Count 6 may indeed be a reflection of the lesser amount of money involved in Count 5.

58 The Crown submits that the learned sentencing Judge complied with relevant sentencing principles with respect to setting individual sentences for each of the offences and application of the elements of concurrence, accumulation and totality.

59 I accept the submissions of the Crown with respect to Ground 2. Her Honour complied with the principles in Pearce in fixing an appropriate sentence for each offence and then considering questions of accumulation, concurrence and totality.

60 The joint judgment of Gleeson CJ, Gummow, Hayne and Callinan JJ in Markarian v The Queen [2005] HCA 25 at paragraph 27 emphasised the importance of the discretionary nature of the determination of sentence in a particular case, the fact that there is no single correct sentence, and the flexibility to be allowed to first instance judges to determine what a particular sentence should be. As the footnotes to the judgment make clear, their Honours had in mind Pearce and Johnson in making these statements. In my view, these principles should be kept in mind when complaint is made concerning application of the principles in Pearce. There is a measure of flexibility available to a sentencing judge in the exercise of the sentencing discretion for a number of offences.

61 Although Count 5 involved a lesser sum than the other offences, it was the fifth offence in the sequence of offending. It involved a business-class air ticket for the Applicant’s own purposes. Her Honour could have achieved the same overall sentencing outcome by the imposition of a greater sentence on a different count, and I do not consider that her Honour’s approach demonstrates error which should attract the intervention of this Court.

62 I reject Ground 2.

Ground 5 – A Comparative Sentence Argument

63 Ground 5 is in the following terms:

“The learned sentencing judge also dealt with a co-accused and the sentence imposed upon that person would give rise to a legitimate sense of grievance on the part of the applicant.”

64 This ground relates to the sentence imposed by Ainslie-Wallace DCJ upon Johnson Chandra on 9 September 2004. The Court was informed that Mr Chandra was charged with offences in the same indictment as the Applicant and was to proceed to trial (a joint trial) with the Applicant, on 24 May 2004. Like the Applicant, Mr Chandra’s legal representatives reached agreement with the Crown that he would plead guilty to a lesser number of counts on an amended indictment. Mr Chandra pleaded guilty to four counts of obtaining a financial advantage by deception contrary to s.178BA Crimes Act 1900.

65 Before moving to consider the particular arguments arising from the sentence passed upon Mr Chandra, it is appropriate to consider the relevance of Mr Chandra’s case to the present application for leave to appeal. Senior Counsel for the Applicant accepts that Mr Chandra and the Applicant were not co-offenders and that the normal parity principle does not strictly apply. However, he contends that there are similarities between the criminal conduct of the two offenders, their related arrests and parallel criminal proceedings in such a way as to attract, by analogy, the parity principle. It is submitted that the Applicant has been left with a sense of grievance which, in all the circumstances, is justifiable.

66 As the Applicant and Mr Chandra were not co-offenders, the parity principle reflected in Lowe v The Queen (1984) 154 CLR 606 and Jones v The Queen [1993] 67 ALJR 376 has no application.

67 This Court has held that the parity principle is not to be applied when a ground of appeal invites comparison between sentences imposed upon two offenders, who are not co-offenders, simply because the two offenders may have similar characteristics and may have committed similar crimes. In R v Morgan (1993) 70 A Crim R 368, Hunt CJ at CL (Allen J and Loveday AJ agreeing) said at 371:

“It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.”

68 In R v F (2002) 132 A Crim R 308, it was submitted on behalf of an offender that the Court should treat the sentence imposed in a different case upon a different offender as being a “benchmark” which ought be followed. The Court rejected this argument. Simpson J said at 315:

“Consistency in sentencing may be achieved by the slavish adoption, by a subsequent court, of a sentence selected by an earlier court when the facts are comparable. However, that would be consistency purchased at the cost of the sacrifice of the proper exercise of judicial discretion. Within the bounds of the appropriate range of sentences, each sentencing judge (either at first instance or following appeal) must bring to bear his or her own independent assessment of the particular case.
I do not find the argument in relation to the desirability of consistency in sentencing persuasive in this case. Consistency is not derived from a single case. Consistency in sentencing will be achieved from a range of cases involving similar features, and also variables. It depends upon the accumulated wisdom and experience of sentencing judges. In my opinion a single case is inadequate to enable a principled consistent approach.
…
Moreover, while consistency in sentencing is, no doubt, an important goal, equally important for the administration of justice is the public perception that sentences imposed by criminal courts are appropriate to the nature and seriousness of the crime committed.”

Meagher JA at 309-310 agreed with Simpson J, but preferred to use the words “more important” rather than “equally important” in the last quoted passage. Howie J expressed a similar view to Meagher JA in this respect at 316-317.

69 In R v George (2004) 149 A Crim R 38 at 47, the Court (Wood CJ at CL, Adams and Kirby JJ) approached a ground of appeal which invited comparison with sentences in other case in the following way:

“We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 to 101. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna , ‘Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.’ Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made.”

70 Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker [2001] NSWCCA 148 at paragraphs 17-18; R v Swadling [2004] NSWCCA 421 at paragraphs 29, 54; R v Martin [2005] NSWCCA 190 at paragraph 56. In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy.

71 In R v Singh [2001] NSWCCA 424, an argument was advanced that an unjustified disparity existed between the overall sentence imposed upon the Applicant when compared with others who might be considered to be his co-offenders. It was submitted for the Applicant that he was one of a group of offenders, most of whom had been dealt with by different District Court Judges, in respect of the sale of amphetamines from a particular café in Kings Cross. In the course of rejecting this argument, Howie J (Grove J agreeing) said at paragraph 12:

“The applicant was never charged with any offence in relation to the supply of drugs to, or by, the persons at the café. The applicant was not a co-offender of any person other than the unidentified person or persons who supplied him with the drugs that he on-supplied to the operative. The supply to the undercover officer was only in the most indirect way connected to the criminal conduct emanating from the café and for which other persons were sentenced. As Judge Woods noted, the applicant was not the target of the police operation and, in his Honour’s words, he ‘simply became roped in’. Regardless of what sentences the persons connected with the drug dealing from the café received, the applicant could not have a justifiable sense of grievance about them. The sentences of those persons are no more relevant than would be the sentences imposed upon other associates of the applicant for unrelated drug offences. Although Judge Woods said that he would bear in mind the sentence imposed upon one of the barmen at the café for supplying ecstasy, I cannot understand why he did so.”

72 It was accepted in this case that the Applicant and Mr Chandra were not co-offenders. Whatever may have been the position with the offences contained in the original indictment, it is the case that none of the offences to which the two offenders ultimately pleaded guilty were committed by them as co-offenders. As will be seen, it appears that there was some association between the two offenders and some overlap in their activities. However, I do not consider that this attracts the parity principle to the Applicant’s case. In my view, the correct approach to the present argument involves application of the principles referred to in Morgan, F, George and Singh referred to above.

73 Given the argument advanced on behalf of the Applicant, however, it is appropriate that I refer to Mr Chandra’s case and his sentencing outcome. The Court was provided with the remarks on sentence of Ainslie-Wallace DCJ in sentencing Mr Chandra on 9 September 2004. He had pleaded guilty to four counts of obtain financial advantage by deception contrary to s.178BA Crimes Act 1900. The offences were committed on 5 December 2001, 24 February 2002, 9 May 2002 and 29 May 2002. Three of the charges involved the obtaining of air tickets by the provision of credit card numbers with the air tickets obtained in that way having a total value of $5,700.00. One of the counts involves the use of a credit card belonging to a Ms Matthews being the same name as the card number in one of the Applicant’s offences (Count 5). It is not known whether this was the same cardholder’s name being used by the two offenders.

74 The fourth count against Mr Chandra involved a telephone purchase of three air conditioners for a total amount of $13,700.00 by provision of false credit card details. With respect to this offence, which was committed on 5 December 2001, Mr Chandra later said that he purported to collect the air conditioners on behalf of the present Applicant (whom he had met shortly before the commission of the offence) and that he, Mr Chandra, was being paid $1,000.00 to collect the units. It will be observed that the present Applicant did not plead guilty to any count involving the fraudulent obtaining of air-conditioning units.

75 There were two passing references to Mr Chandra in the Agreed Statement of Facts in the proceedings against the Applicant. First, one of the 15-named persons for whom air tickets were purchased with respect to Count 4 was “Mr J Chandra”. Second, the search warrant executed by police on 20 June 2002 related to “accommodation occupied by Araya, Chandra and Paredes”. Thus, the material before Ainslie-Wallace DCJ in the Applicant’s proceedings pointed to some form of association between the Applicant and Mr Chandra. However, as was common ground before this Court, they were not co-offenders.

76 Mr Chandra was 27 years old, had been born in Indonesia and had been residing in Australia since 1983. He had a prior criminal history of convictions for stealing and break enter with intent to steal for which he had received a community service order which he breached and for which he received a further community service order. He had two convictions for driving whilst disqualified.

77 Mr Chandra was arrested on 23 June 2002 and spent one month and 23 days in prison in relation to the offences for which he was sentenced. Ainslie-Wallace DCJ observed that this was his first time in custody.

78 Mr Chandra pleaded guilty to a reduced number of charges after his trial date had been fixed. Ainslie-Wallace DCJ records (remarks on sentence, 9 September 2004, page 4.7) that the Crown conceded that in the circumstances of the case, the plea should be regarded as being entered at an early stage. Her Honour allowed a 20% discount on sentence in this regard.

79 Ainslie-Wallace DCJ said with respect to Mr Chandra (remarks on sentence, 9 September 2004, page 5.6):

“The objective gravity of these offences are such that an effective sentence of thirty months imprisonment would be required. I take into account the plea of guilty and in relation to which I propose to discount the sentence I would otherwise have imposed by twenty per cent which leads to an effective head sentence of twenty-four months.
I turn now to a consideration of how that sentence should be served. For the offender it was submitted that a suspended sentence would meet the need of a sentence to reflect the objective seriousness but which also would allow for the offender to continue the steps which he has made towards his rehabilitation. The Crown too submitted that a suspended sentence was within the range of appropriate sentences for this case.”

80 In the result, Ainslie-Wallace DCJ sentenced Mr Chandra to an effective non-parole period of 16 months and a total sentence of two years’ imprisonment, both to date from 19 July 2004. Pursuant to s.12 Crimes (Sentencing Procedure) Act 1999, her Honour suspended the operation of the whole of each of the sentences upon the condition that Mr Chandra enter into a bond to be of good behaviour and accept the supervision of the Probation and Parole Service.

81 Senior Counsel for the Applicant contends that Mr Chandra had a history for convictions for dishonesty and other offences and had previously received community service orders, one of which he breached. Mr Chandra was allowed a 20% discount for his plea of guilty, but the Applicant was only allowed a 15% discount. It is contended that Mr Chandra’s criminality was comparable to the Applicant in most respects and that it was surprising that he received substantially lower sentences and, in particular, that his sentence was suspended.

82 The Applicant submitted that the Court should intervene to reduce the Applicant’s sentence because of the wide disparity between the sentences imposed upon the two offenders. Alternatively, it is contended that Mr Chandra’s sentences illustrate that the sentences imposed on the Applicant are excessive.

83 The Crown submits that Mr Chandra was not a co-offender and was not sentenced for the same offences as the Applicant. He was sentenced on four counts and not six; three of those counts being similar in nature to those of the Applicant.

84 Furthermore, the subjective material in respect of Mr Chandra, and the findings made by Ainslie-Wallace DCJ, differed significantly from the subjective material and the findings made in respect of the Applicant. The Crown submits that these differences should be acknowledged even applying ordinary parity principles: Lowe v The Queen (1984) 154 CLR 606; R v Li and Ors [2005] NSWCCA 154 at paragraph 42.

85 I do not consider that the matters raised in this ground of appeal provide a basis for this Court to intervene with respect to the sentences imposed upon the Applicant. The Applicant and Mr Chandra were not co-offenders. The parity principle has no direct application to this case. It is true that the two offenders are not unrelated. This is not a case such as Morgan, F and George where the Court is asked to compare sentences for entirely unrelated offenders and offences. This case is closer to Singh where a parity-type argument was rejected.

86 The applicable principles, however, are those contained in Morgan, F, George and Singh. The issue is whether the sentences imposed upon the Applicant are outside the appropriate range of sentence for offences of this type. A comparison of the Applicant’s case with the sentences imposed upon Mr Chandra does not demonstrate error in this respect.

87 Even if the parity principle is considered by analogy in this case, I do not consider that the Applicant has a legitimate grievance in accordance with that principle. There were differences in the objective and subjective circumstances of the two cases. In Mr Chandra’s case, Counsel submitted that a suspended sentence was an appropriate sentencing outcome and the Crown conceded that a suspended sentence was within the available range of sentences for that case. The view might be formed that the suspension of Mr Chandra’s entire sentence of imprisonment was a most lenient and fortunate outcome for him.

88 If the parity principle had application here, it would still be for this Court, in the exercise of discretion, to determine whether there is disparity of a kind which should attract appellate intervention: R v Rexhaj (Court of Criminal Appeal, 29 February 1996, BC9600975 at page 7); R v Steele (Court of Criminal Appeal, 17 April 1997, BC9701297 at pages 11-12). In the circumstances of this case, I do not consider that this Court, acting in accordance with the appropriate principles, ought intervene to vary the Applicant’s sentence.

89 I reject Ground 5.

Ground 3 – The Sentences are Manifestly Excessive in the Circumstances

90 The Applicant submits that the sentences imposed by Ainslie-Wallace DCJ are manifestly excessive and that this Court should intervene pursuant to s.6(3) Criminal Appeal Act 1912. Section 6(3) permits the Court to impose another sentence in substitution for the original sentence only if it is of the opinion that such other sentence is warranted in law and should have been imposed. Section 6(3) does not require the Court to identify any particular error before exercising that power. Even if the precise nature of the error may not be discoverable, it is sufficient that the result was so unreasonable or plainly unjust that the appellate court may infer that there has been a failure properly to exercise the sentencing discretion: House v The King (1936) 55 CLR 499 at 504-505.

91 In R v Johnson [2005] NSWCCA 186, Hunt AJA (Hulme J and myself agreeing) said at paragraph 34:

“In such a situation where the precise nature of the error is not apparent, the Court will inevitably have concluded that the sentence imposed was outside the appropriate range for the circumstances of the particular case, and it must determine for itself what sentence is warranted in law in relation to those circumstances.”

92 The Crown submits that the learned sentencing Judge properly characterised the offences as “particularly serious” involving a “continuing course of criminal conduct which involved considerable planning” in which “a cardholder’s privacy was violated”. These were not offences resulting from impulse or the Applicant finding himself in a situation at one time and taking advantage of it. He embarked on a deliberate course of repeated criminal conduct over a 15-month period until he was apprehended.

93 The Crown observed that the Applicant was being sentenced for six offences, committed over a 15-month period involving a total of $18,104.00 involving details from five separate credit cards.

94 Senior Counsel for the Applicant contended that the sentences imposed upon Mr Chandra may be relied upon in support of the argument that the Applicant’s sentences were manifestly excessive. For reasons given with respect to Ground 5, I do not accept this argument. It is the range of sentence which is appropriate to the offences which must be considered (Morgan, F, George), not the sentence imposed in a single case involving a person who is not a co-offender.

95 In my opinion, the sentences imposed by Ainslie-Wallace DCJ were well within the available range of sentence for offences of this type. I do not consider that the sentences for the individual offences, nor the total effective head sentence and total effective non-parole period, disclose error or are manifestly excessive.

96 These were objectively serious offences. The Applicant had access to credit card numbers for five persons which he used, or attempted to use, for fraudulent purposes. To aid this process, he had in his possession two drivers’ licences which bore false names, but his own photograph. It has been observed that a “proficient fraudster” may be “armed with forged documents such as a driver’s licence because it is common to rely upon such documents as proof of identity”: R v Tadrosse [2005] NSWCCA 145 at paragraph 26. This demonstrates an element of planning and sophistication and bespeaks a high level of objective criminality.

97 In R v Harrower [1999] VSCA 182, Brooking JA (Winneke P and Charles JA agreeing) said at paragraph 10:

“The credit card has achieved ever-increasing popularity. For good or ill, it has for many people largely replaced cash as a means of payment. It has itself become an important source of cash advances. 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.”

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.

99 I do not consider that any lesser sentence was warranted in law and should have been passed in this case for the various offences committed by the Applicant.

100 I would grant leave to appeal and dismiss the appeal.

101 ROTHMAN J: I agree with Johnson J.

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