R v Arora
[2022] ACTSC 39
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Arora |
Citation: | [2022] ACTSC 39 |
Hearing Date: | 31 January 2022 |
DecisionDate: | 3 February 2022 |
Before: | Norrish AJ |
Decision: | See [108]-[109] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – participate in a criminal group being reckless as to contribution to criminal activity – recklessness short of knowledge – no personal gain – prior good character – significance of maximum penalty – “objective seriousness” – reparation – “direct result” – utilitarian benefit of plea of guilty |
Legislation Cited: | Crimes (Sentence Administration) Act 2005 (ACT) s 86 Crimes (Sentencing) Act 2005 (ACT) ss 7, 12, 19, 33, 35, 49, 53 Criminal Code 2002 (ACT) ss 45, 253, 352, 652 |
Cases Cited: | Blundell v The Queen [2019] ACTCA 34 Cranfield v The Queen [2018] ACTCA 3 Zamagias v The Queen [2002] NSWCCA 17 |
Parties: | The Queen (Crown) Mohit Arora (Offender) |
Representation: | Counsel R Christensen SC (Crown) A Francis (Offender) |
| Solicitors ACT Director of Public Prosecutions (Crown) One Group Legal (Offender) | |
File Number: | SCC 120 of 2021 |
NORRISH AJ:
The offender, Mohit Arora, appears today for sentence in relation to an offence contrary to s 652 of the Criminal Code 2002 (ACT) (the Criminal Code). That offence to which he pleaded guilty alleged that he, between 2 June 2019 and 29 December 2019, participated in a criminal group, knowing that the group was a criminal group, and being reckless about whether his participation in the criminal group constituted criminal activity. This offence has a maximum penalty of five years imprisonment.
There are no other offences to be taken into account. The prisoner pleaded guilty on 4 November 2021 after the Crown had offered a plea of guilty to the charge in question in lieu of prosecuting the offender in respect of 70 counts of being knowingly concerned in another person obtaining a financial advantage contrary to s 332 of the Criminal Code (see also s 45). The maximum penalty for each of those offences was 10 years imprisonment.
The matter had been listed for jury trial to commence on 15 November 2021 with an estimate of three weeks and the possibility of over 70 witnesses being called. In that regard, I note that there had been a Criminal Case Conference in August and there had been some pre-trial issues considered by the court. Noting the terms of section 35 Crimes (Sentencing) Act 2005 (ACT) (hereinafter I will refer to as 'the Sentencing Act') and the submissions of the parties in respect of the circumstances in which the prisoner entered the plea to this particular charge, notwithstanding the fact that the plea was entered only 11 days before the trial was to commence after further negotiations, although I must point out the negotiations I am referring to occurred in late October, I am satisfied that the plea represents a plea of significant utilitarian value and that therefore, in the event of the imposition of a term of imprisonment, the offender should receive a discount to reflect that utilitarian benefit to the extent of 20 per cent.
I will come back to that issue shortly. So far as the facts of the matter are concerned, there is an agreed statement of facts, some of which I will quote, although all the material within the agreed statement of facts and the related material provided to the court has been taken into account.
In 2019 the prisoner became the director and shareholder of a company that operated two Vodafone stores as what was described as a 'third party dealer'. One such store was located in Tuggeranong, part of the ACT, and the other store was located in Queanbeyan which is, of course, in New South Wales.
The prisoner through the company took over the Tuggeranong store in March 2019. Between 7 March 2019 and 31 May 2019, 43 people attended upon the Vodafone store in Tuggeranong for the purpose of entering into phone contracts or adjusting existing contracts. On each of these occasions, the person provided identification documents, as is the usual case, and as was required by Vodafone's policy, for the purpose of verifying their identity. These details were provided to a criminal group by the offender in circumstances where the offender was reckless in doing that, and in so doing contributed to the group's criminal activity which is described as the offending conduct.
As a consequence of the offending conduct, the identification documents were used by the criminal group to apply for and on numerous occasions received credit cards, debit cards and personal loans in the name of the relevant Vodafone customer. The credit card, debit card and personal loan applications were approved were then used. Following their use, the relevant financial institutions that are identified in respect of the reparation order, that is the ANZ Bank, Bankwest, Latitude Financial Services and American Express did not receive any repayments.
The Vodafone customers whose identities were used to obtain the relevant financial services in the manner of credit cards or personal loans were unaware that their identification was used to obtain those services until a later time when they were called to account, quite wrongly, for non-repayment of monies that were advanced. So far as the offender's access to the relevant documentation, the information available to the Crown through the investigation of the matter was that when identification was scanned into the system, in a particular instance, the scanned copy would stay on the store's laptop until the prisoner instructed the staff to have it deleted or an employee was told by the prisoner that he needed to store the identified material to check that he had been paid for each individual contract.
This employee is noted to have observed the offender taking some documents from the Tuggeranong store home with him from time to time, including Vodafone contracts. In the scheme of the matter, having regard to other findings of fact I make, I do not see that there is anything sinister in that.
The “criminal group” in question, between 23 November 2019 and 15 May 2020, made a total of 86 successful applications for banking products. Twenty-two of those applications involved the use of fraudulent payslips in the names of employers of the Vodafone customers. One application involved the fraudulent use of bank statements.
Five of the applications involved a person purporting to be the named applicant engaging in a phone conversation with the financial institution to finalise the application. Another 28 applications, using some of the same names, were declined by the various financial institutions. Transactions on the various financial products that were obtained through fraudulent means were negotiated between 2 December 2019 and 21 May 2020. There were a total of 142 transactions at various retail stores utilising approved credit cards.
So far as the total loss to the credit providers is concerned, that was in the sum of $928,661.66, to be ascribed individually to the Commonwealth Bank of Australia, trading as Bankwest, in the rounded up sum of $137,484, Latitude Financial Services Australia Holdings Pty Ltd in the sum of $228,676, American Express Australia Ltd in the sum of $42,297 and the ANZ Banking Group Ltd to the sum of $520,203.
The statement of facts goes through some detail in relation to the way in which addresses were used for the purposes of obtaining mail that arrived; for example, in response to applications that were made, because obviously people who were using false names and addresses have to obtain access to any credit cards or documentation sent to particular addresses consequent upon the applications being made. The prisoner is not identified as being involved in any way in relation to that aspect of the criminal group's activities and there is no evidence that the prisoner was involved in any of the transactions, or in fact making any of the applications to which I have referred.
On 3 September 2020, the police executed a search warrant at the prisoner's residence at the suburb of Greenway. Various items were found. The prisoner's interview or record of discussion with the police at the time of the execution of the search warrant is available to me and I have read that. There were some documents found in relation to one person who had been used by way of identification to obtain credit from Bankwest. There was also on the offender's mobile phone found a file relating to Vodafone documents in the name of one person whose details were used to obtain fraudulent credit cards.
None of the persons who attended various locations where closed-circuit television is available to assist have been identified. The offender has not been identified where people have been given what are called ‘photo board’ means of identification. But as I said, it is not suggested the prisoner was involved in that aspect of the criminal group's activities.
The offender, in the context of what I was saying earlier about the circumstances of the plea, was initially charged under one of the provisions of the Commonwealth Criminal Code, as well a being charged with 70 offences contrary to section 332 of the ACT Criminal Code. He was initially indicted in the Supreme Court, as I said, with 70 counts contrary to section 332 of the ACT Criminal Code. I have already set out the details of the conferencing and ultimately the listing of the matter for trial and the plea being entered to the charge in question. The Crown makes application for a “reparation order” pursuant to section 19 of the Sentencing Act.
In dealing with the facts of the matter as they appeared in the agreed facts, I am required in this matter to have regard to the evidence of the offender in affidavit and oral form in respect of the circumstances as he understands them, in which the confidential information to which I have referred was obtained by the criminal group. He gives evidence, which I accept, that a person by the name of Abhishek Kumar Saini was a person he met in late March or early April 2019 who offered services in relation to what could be called IT support.
The offender says, and I accept by reference to his employment history and his education, that he was not a person with a great deal of experience with computers in the past. Abhishek, as I will describe him, offered services to provide IT support, which he did over a period of time. The offender gives details of the relationship he had with Abhishek, which continued throughout 2019 into 2020. The IT services were actually provided.
As I will point out later, in the context of considering some matters raised in the course of the submissions, it is quite clear from all the evidence available to me that the prisoner himself was not a person greatly experienced in business and certainly had not been responsible for the conduct of a business of this character before. In some respects he was naïve, if I could use that expression, in relation to commercial matters. Although I have no doubt that he understood the significance of ensuring that personal details of customers were not to be provided to third parties.
The offender says in his affidavit, by reference to Mr Abhishek that he only came to the Tuggeranong store to provide IT services, but, in relation to the Queanbeyan store, he had no connection with that. He said in paragraph 38 of his affidavit, which was unshaken in the course of the examination of him by the Crown, he saw him with a USB stick on one occasion in his store at Tuggeranong.
He asked Abhishek what he was downloading in Hindi and Abhishek told him that he was copying some customers contract information, selling people's details to online marketing companies. He said to Abhishek, “Is this anything to do with me?” and was told “no” and then he said words to the effect, “Please, I don't want any trouble. If you can make some extra money, that is okay for you because you are helping me out, but I don't want any trouble from it”. To which Abhishek said he would not have any trouble.
His relationship with Abhishek continued for a period of time after that. He wasn't suspicious of him; he provided the IT support that was promised. However, by the beginning of 2020, his familiarity with the computer systems and the like were such that he relied less on Abhishek's assistance. By around July 2020, Abhishek stopped coming to the store. He sought some assistance from him in some instances, but ultimately was told not to call him because he, Abhishek, said, 'I'm in trouble. Better not to call me.'
It transpires that Abhishek is a real person. I received a reference from a person called Shubham, who was introduced to Abhishek by the offender and it was in these circumstances that it would seem, based upon the information contained within Shubham's reference, that a driver's licence for Abhishek was provided and the person would appear to be a real person. A mobile phone number for Shubham was provided in the reference for further contact. I specifically asked the learned Crown to have enquiries made, if needs be, in relation to that mobile phone number and nothing more was said about the matter by the Crown after apparently enquiries were made.
The prisoner did provide to the investigators in January 2022 details in relation to Abhishek's identity. This was an identity not known to the investigating police. According to the investigations of the AFP, he is a person who exists in the name that I have identified. It would appear, based upon the enquiries made by the AFP, that his bridging visa expired or ceased on 14 January 2021 and he, Abhishek, or Mr Saini, as he is described in the letter from the AFP, left the country, not having a valid visa to remain in Australia. He is not a person known to the police on police records.
Bearing in mind the information provided, by the time it was provided, was over two years old and the man had left the country and was unable to be contacted, noting that Mr Saini's name does not appear in either of the mobile telephones seized during the search warrant, and bearing in mind any CCTV footage of Mr Saini attending the Vodafone store was no longer available because the retained information had long expired, the information provided by the offender was described as having 'no value of assistance' in the opinion of the investigators. That is certainly self-evidently true, having regard to all of the circumstances of the matter.
There is, to be fairly said in the context of the litigation history, some understanding of the circumstances in which there was delayed provision of this information. It certainly was not provided at the time of the police search, but I note from the record of the discussion with the offender he was enquiring of the police themselves as to whether he should get legal advice and the like, and an offender charged with criminal offences is, in the context of defending those particular charges, in a difficult position in terms of disclosure to the prosecution. The charges brought, for over 14 months, were markedly different than the current charge.
Be that as it may, arising out of all the evidence available to me, I am required to determine what is the objective seriousness of the offending with which I am concerned. This is the most significant matter. I have taken into account all the submissions that have been put by the parties, both orally and in writing in relation to these matters. I have noted of course in the context of that task the terms of section 33 of the Sentencing Act, and the various matters that are described as 'relevant considerations' that are pertinent to this particular matter.
It is obvious from other material that the prisoner, being a person without prior criminal convictions, and having regard to the character evidence, comes forward as a person of good character. This is relevant to his credibility. I will come back to the subjective case shortly.
The assessment of the objective circumstances of the offending is a matter not without difficulty. However, to put particular submissions in context, one needs to go back to the fundamental aspects of the character of this prosecution and sentencing principles that arise in that context. The starting point, of course, is the maximum penalty for the offending, and then there is a consideration of the range of conduct that could be contemplated by this particular offending.
The High Court in Markarian v The Queen [2005] HCA 25; 228 CLR 357 considered important fundamental principles in relation to sentencing in the context of the facts of that particular case. The majority of the court said at [30]-[31] the following:
Legislatures do not enact maximum available sentences as mere formalities. Judges need sentencing yardsticks. It is well accepted that the maximum sentence available may in some cases be a matter of great relevance. In their book 'Sentencing', Stockdale and Devlin observe that:
“A maximum sentence fixed by Parliament may have little relevance in a given case, either because it was fixed at a very high level in the last century ... or because it has more recently been set at a high catch-all level ... At other times the maximum may be highly relevant and sometimes may create real difficulties ...
A change in a maximum sentence by Parliament will sometimes be helpful [where it is thought that the Parliament regarded the previous penalties as inadequate].”
It follows that careful attention to maximum penalties will almost always be required, first because the legislature has legislated for them; secondly, because they invite comparison between the worst possible case and the case before the court at the time; and thirdly, because in that regard they do provide, taken and balanced with all of the other relevant factors, a yardstick …
This offending, of course, is, in all the circumstances, well below a worst case scenario for an offence of this type, carrying as it does a maximum penalty of five years' imprisonment. I bear in mind, in the context of considering the charge brought by the Crown, not at the urging of the prisoner, but of its own motion apparently as was previously pointed out, the very large number of offences carrying a greater maximum penalty that were previously individually charged.
Of course, in relation to the individual charges, they related to specific sums I would have thought each considerably less than the total sum to be contemplated as being lost by the financial institutions in this 'rolled up charge'. I also bear in mind that the original charge, for which the offender was indicted, was a charge of being 'knowingly concerned in another person obtaining a financial advantage'. The pleading in this matter, and the facts of this matter, fall short of establishing the prisoner being 'knowingly concerned' in another person obtaining a financial advantage.
It is the case in this matter that there is no issue that the prisoner himself did not receive a financial advantage from his criminal conduct, or any financial benefit whatsoever. Further, the prisoner in his evidence, which is unchallenged on this matter, was not aware of the extent to which his recklessness caused loss to the relevant financial institutions until after he was charged. Nor was he aware of the way in which the relevant information had b used up until the time that the police arrested him.
There are other matters arising out of the objective facts to be borne in mind. The relevant information that the prisoner recklessly provided had been obtained by his business between 7 March 2019 and 31 May 2019. The various applications for banking products was based upon that information, but did not occur immediately after the information had been provided. It was, in fact, apparently provided to the financial institutions between 13 November 2019 and 15 May 2020. The relevant transactions to which I referred occurred between 2 December 2019 and 21 May 2020 at retail stores. As I said, there is no evidence that the offender made the applications, nor negotiated the transactions.
It is also important to bear in mind that the offender continued to conduct his business legitimately, and to some extent profitably, up until September 2020 when Vodafone, the franchisor, terminated the franchises, declining to pay commissions then outstanding. The fact that the offender was continuing to conduct business for many months after the identity details had been misused, and had not endeavoured, in effect, to cover up or escape detection, reflects the fact that at the time that he was arrested by police he had no idea of the use that had been made of the confidential information in his possession, or the possession of his franchise.
The other aspect of the matter by reference to the available maximum penalty, is the fact that the section itself by which he is charged, posits two different states of mind requiring criminal sanction, admittedly with the same maximum penalty. One state of mind is ‘knowing’ that the participation contributes to criminal activity. The other, which he admits, is being ‘reckless’ to the fact. The extent of recklessness involved may be a variable matter. Some occasions will arise where recklessness will be as morally culpable, if I could use that expression, as having knowledge. This is not that case.
The measurement of the criminality of the offender is not solely determined by the consequence of the offender's recklessness, but by consideration of all the circumstances in which that recklessness occurred. The criminality admitted by the offender does not include evidence or an admission by the prisoner of giving permission for the misuse of the confidential information in the manner in which it occurred, although I have indicated the circumstances in which that relevant permission was given.
He was only aware, on his account, of one occasion when it might have been reasonably suspected by him that material or information within his computer database was being downloaded. He was not shaken in that respect; in fact, was barely challenged in relation to that matter, although the Crown properly cross-examined him about his knowledge of his association with the IT person.
The primary challenge to him was the extent to which he had knowledge of the activities of the person who gained access to the computer files. In my view the offender, making allowance for him giving evidence with English as a second language, Hindi being his primary language, was unshaken.
The fact of the matter, emerging from the offender's evidence, is that that person had a legitimate reason or purpose to be given access to the database that was within the Tuggeranong franchise business. In my view, it is not shown in the evidence to the contrary of the prisoner's account that the prisoner was a person involved in the continuing conduct of the criminal group for a period of time; as great as seven months, as suggested by the Crown by reference, I assume, to the particulars.
In relation to the issue of the assessment of the objective seriousness of the offending too, I have regard to a case actually discussed this morning in a totally different context of Mills v R [2017] NSWCCA 87, a judgment concerned – in relation to the assessment of the objective seriousness of certain sexual offences; and I particularly refer to [50] of that judgment and the discussion that occurs in the judgment of Hulme J, at [52]-[56]. I need not dwell upon the detail of that discussion. Although, as I earlier pointed out, it is not suggested that this was in the category of worst case scenario of offences of this type.
In respect of the conduct of the prisoner and the assessment of its objective character, I have had regard to the matters brought to my attention by the learned Crown Prosecutor – and I have had regard, of course, to all the submissions put by both parties in their helpful written submissions particularly – where the features of matters of this type, as discussed in decisions such as R v Eliadis [2017] ACTSC 193. I accept that the judgment is of assistance in identifying features of offences of this type that reflect upon objective seriousness of a relevant offence.
Amongst the matters identified from that judgment are the following: that the offender was responsible for planning the scheme and its overall implementation, whether the scheme was moderately sophisticated, that the offender's role was critical to the success of the scheme, whether the offender assisted in support of others in the criminal group, the total amount of funds obtained and unable to be recovered, the extent of the offender's financial gain, the motivation of the offender, the period of time in which the offender participated in the group, and the offending behaviour only ceasing when detected by the police. No doubt, there are other features that could be identified in a particular case.
In my view, the Crown can only identify one significant feature in this matter that can be seen from the matters I discussed in that particular judgment. That is, the issue of whether the offender's role was 'critical' to the success of the scheme. His role was important because if he had not permitted Abhishek to gain access to the database the personal details of various people would not have been obtained. It is an important matter to take into account and it is relevant to the assessment of the prisoner's recklessness. It is also relevant to the understanding of the success of the scheme. But the prisoner's role in this regard was, to my mind, 'not critical' to the success of the scheme, given the opportunity that Abhishek had to gain access to the database to the knowledge of the offender for legitimate purposes.
The offender was not responsible for setting up the database, as I understand it, and such procedures that were in place to protect the integrity of information were beyond his control one would assume, given the character of the business and the fact that it was a franchise business for a major corporation. His recklessness extended to providing access in the particular circumstances identified in his evidence. But, on the other hand, legitimate access by Abhishek could still obtain for him the information which was used to obtain financial services.
So far as the organisation of the scheme is concerned, I do not accept that it was 'moderately sophisticated'. It certainly was organised. But the truth of the matter is it involved the downloading of information that was then used obviously by other people to make various applications in a very rudimentary fashion. It might have involved some organisation of individuals to attend upon business premises to negotiate transactions or to steal mail from particular addresses that were known to the group as being recipients of credit cards and the like that were being sent, but I do not understand this, in the scheme of criminal conduct, to be necessarily 'sophisticated'. It was not as if, as I have seen in many identity theft cases, where documents such as drivers' licences and credit cards and the like have been forged in the manner that can occur; for example in the matter of R v Lahood [2019] NSWDC 646, to which I was referred.
In this regard the Crown also referred me to a decision of R v Joel Westman; R v Flinn Westman [2021] NSWDC 234, a decision of a former brother judge of mine, his Honour Haesler DCJ of Senior Counsel, a Judge of the District Court of NSW. That case sheds little light upon the assessment of the objective seriousness of this offending, other than to recognise from that judgment that in New South Wales there is a different hierarchy of offences. The offence of this type with which I am concerned with this maximum penalty of five years would be in New South Wales at the lowest level of that hierarchy of offences.
I note in relation to the ACT legislation in my research that there is an offence under section 653 of the Code which allows for a maximum penalty of 10 years for an offence of this type that 'causes harm to a person'. In this particular matter the prisoner is not charged, nor is it alleged – notwithstanding some assertions in the victim impact statements – that the prisoner is responsible for mental harm caused by the conduct of the criminal group and it could not be said by reference to the victim impact statements that the prisoner could reasonably be held, either at law or morally, on the facts of this case to be responsible.
It is worthy of note, and the Crown very helpfully has pointed this out in her own written submissions, that in Westman there was discussion about the purpose of what was described as the New South Wales legislation. Particularly noting the Second Reading Speech reference that the legislation is designed to counter the activities of 'gangs' who, by reason of 'crimes of violence, robbery or drug supply are a far greater threat to the safety and wellbeing of the community than most crimes committed by individuals acting alone'. I am sure the ACT legislation is directed at the same social evil among others. The conduct for which this prisoner is responsible is far removed from the category of conduct contemplated by this section that might involve gangs profiting from crimes of violence, drug supply or armed robberies, such as organised motorcycle groups and the like.
Addressing particular matters identified in the Crown's submissions relating to the issue of sophistication, it should be said that even if I was wrong in my assessment of the level of sophistication and it could be said the perpetration of the frauds was committed with a moderate degree of sophistication, it is important to point out that there is no evidence that the prisoner was responsible for that aspect. As to the length of time over which the offence was committed, so far as the prisoner's criminal responsibility is concerned, that cannot be identified beyond reasonable doubt with precision, notwithstanding the particulars in the charge.
With regard to this issue of the time over which the offending conduct occurred, it is impossible to determine that beyond reasonable doubt even making allowance for the period of time over which applications were made in respect of identity details obtained from the offender's database. The chronology of events does not sit well with the particulars of the charge bearing in mind the particulars of the charge cover only part of the period over which applications were made for financial services and transactions were undertaken.
As I said earlier, and as conceded by the Crown, there is no evidence that the accused was responsible for planning the scheme, the prisoner received no financial gain, he had no motivation for committing the offence in any way as one for financial gain, nor is there any suggestion of cultural pressure, notwithstanding the fact that Abhishek was a person of similar cultural background to the prisoner. Nor was the offending conduct of the prisoner, even as particularised, brought to a stop by detection of him by the investigating police.
What can be determined beyond reasonable doubt is that the offender's recklessness contributed to the circumstances in which the criminal group were allowed to have access to and thus use when desired the information with which he was entrusted. The recklessness of the offender did involve a breach of trust. The personal information that was assessed was entrusted to him for the purposes of his business, not for the purposes of access for 'marketing purposes', or the criminal conduct of the group.
The court has not been informed however of Vodafone's procedures in relation to the protection of personal data, the character of his franchise agreement as it reflected upon his responsibilities, nor his training to ensure the integrity of Vodafone's databases. One matter I take into account is that the relevant data that was taken had been obtained by the offender in the two months or so after he'd taken over the business of running the two franchise shops when he was new to the responsibility involved.
This is not a case of continual access to personal information for criminal purposes throughout the period of time that he had control of that data. Clearly from his subjective case as it is presented to this Court, which is not in dispute, the offender had little or no experience of conducting a business of the type that he was conducting from March 2019 and that is a relevant matter.
As I said in a different context, it was at the very least naive of him to agree to Abhishek providing IT services on the basis set out in the offender's affidavit. Whilst the offender may have seen the financial arrangement he had with that person advantageous to the profitability of the business, it could be also fairly said that apart from the time that he had the USB stick he had no basis for having other suspicions about Abhishek's conduct until such time as Abhishek told him that he was 'in trouble'.
In my view, the offending in question is well below the worst category of offending contemplated by the legislation and in the context of the use of terminology that doesn't strictly arise under ACT legislation I would regard the offending conduct of this offender as just below what could be described as the middle range of objective seriousness allowing for the fact that the middle range of objective seriousness is not a narrow band.
I am required to have regard to the victim impact statements produced by some of the persons who identities were compromised. I have regard to those statements in the context of the terms of sections 49 to 53 of the Sentencing Act. It was open to counsel for the offender to cross-examine any person who makes a victim impact statement although the statements themselves are not on oath (see section 53 of the Act).
The victim impact statement may identify harm suffered as a result of an offence including relevant physical and mental harm as well as economic loss but of course the finding of harm has to be seen in the context of what the charge permits and also by regard to what had been described as ‘De Simoni principles’, De Simoni being a decision of the High Court from the 1980s prohibiting judges from sentencing people upon a basis that could only be identified by the offender being charged with more serious offending.
I accept from the facts of the case and the detail of the various victim impact statements that the conduct of the criminal group contributed to by the reckless conduct of the offender in the way in which I have outlined has caused in various ways to these people considerable mental anguish and/or inconvenience, some loss of economic opportunity and particularly a common thread, adverse effect upon credit rating. It has shaken the confidence of each of the victims in their faith in commercial enterprises protecting their privacy.
The extent of loss and concern in this regard of course varies from statement to statement. Some of the victim impact statements identify harm that could not reasonably be connected to the conduct of the offender or even of the criminal group and I have already referred to that matter in the context of what is permitted to be prosecuted under section 253 of the Criminal Code.
However, it is important for the court to reasonably assess what properly can be identified. There was a responsibility of the offender for the consequences of his conduct contributing to the conduct of the criminal group. In that regard, I refer back to my earlier conclusions based upon the evidence.
Whilst the offender clearly was in breach of trust and ought, even as a naive businessman, to have appreciated the general risks in not protecting sensitive information, it also is to borne in mind that the actual consequences were not intended by him and the degree to which adverse consequences arose was not contemplated by him. However the matters adverted to by the victims are understood and they have to be examined in the light of the primary findings in respect of the legal and moral responsibility of the prisoner.
Turning if I may to the subject case of the prisoner, there are number of sources of information that demonstrate many matters that are not in issue. The offender was born in India and moved to Australia at the age of 21. I understand he's now an Australian citizen. He has been married for approximately 10 or 11 years. He has two children, one born in 2012, another in 2014.
He came here as a student but as an adult he has generally worked industriously but in largely unsophisticated and non commercial contexts. As I said earlier, the evidence reveals he was not a sophisticated businessman as is evident from this employment history. For example, he worked as a barista for a number of years; he was an Uber drive from 2016 for a couple of years. He also assisted a brother-in-law in the NBN rollout for six to eight months. He no longer lives in the ACT but lives in Sydney. There he lived before he came to the ACT to conduct the franchises.
His marriage is clearly settled and he has the support of his wife who prepared an affidavit for the court. She is a homemaker and attests to her husband's industry including during the time that he ran the franchises believing that the businesses were being run competently and that her husband was working long hours to maintain them.
She is supportive of the offender, confirms his expressions of contrition made in his evidence and to the pre-sentence reporter. She says the conduct of the offender was uncharacteristic, the offender being described as 'selfless'. She noted that he was a person who can never say 'no' and avoids confrontation at 'all costs'.
There is evidence in material attached to the affidavit of the offender which shows that immediately before the closure of the businesses, or the revocation of the franchise agreement, the offender had substantial commissions due from his conduct of the business which had continued during that period of time notwithstanding the chaos caused by the conduct of the criminal group.
As I understand the document that was provided as an annexure to his affidavit, he had commissions payable in August amounting to approximately $64,634. He said on average he had commissions in the vicinity of $60,000 a month. He said his profit out of those commissions was approximately 30 per cent. He thus estimates that he lost income of about $15,000 to $18,000 per month from the revocation of the franchises and some of the commissions outstanding at the cessation of the franchise agreements were not paid.
He also gave evidence which is not disputed that he continued to pay rent to the landlords until Vodafone found another person to take over the franchise. He said he paid $15,000 in rent in this period and thus suffered financial loss himself at a time when he had no income. This reflects favourably on his integrity.
When he returned to Sydney he ultimately found work in a restaurant until July 2020 and has worked as a restaurant manager from October/November 2021. He currently earns approximately $1,000 per week after tax. His wife does not work but receives a modest Centrelink benefit.
He expressed regret in his affidavit and I accept that he his regretful for the loss that he has caused and regretful for his conduct. He notes the loss to him arising out of the events stemming from his arrest. It was submitted to me that I should regard the effect upon him of his arrest as 'extra-curial punishment'. To my mind, this does not fit within that category of description. But it does highlight the point made earlier, that is an interpretation of the character of the offender's recklessness is reflected in the fact that he continued to run the business for many months after the data had obviously been taken without his knowledge, oblivious to the activities of the criminal group.
He sets out in his affidavit the circumstances of him purchasing the franchises. That he was introduced to the opportunity through a mutual friend. One assumes that Vodafone undertook appropriate character checks before permitting him to take over the franchises. In relation to the character of the businesses, one business at Tuggeranong was more profitable than the other.
I have a pre-sentence report from an officer of the ACT Community Corrections who identifies the offender as being at ‘low risk’ of general offending, having a number of 'protective factors' in the community and whilst the reporter reflects upon what it says is the prisoner's non acceptance of 'responsibility' and his 'denial of being part of a criminal group', these statements made by the offender have to be seen in the context of a subtlety of the factual circumstances upon which I must sentence him.
The pre-sentence report confirms the stability of the offender's domestic circumstances and his financial situation, stating that his financial situation is 'manageable', although he has a number of debts outstanding. He is not a person addicted to or abuses alcohol or drugs. He is a religious person. His associates are described as 'pro-social'. He is assessed at being at a low level of need for intervention by ACT Corrective Services and is eligible and suitable, if needs be, for community service work and/or an intensive correction order.
It is clear, however, from the evidence the offender gave before me that it is not realistic for him to return to the ACT as would be necessary to serve responsibilities under orders such as an intensive correction order or some other non-custodial order. That having been said, the ultimate conclusion I have reached in relation to the orders to be made has not been fashioned by the fact that he cannot or does not want to return to the ACT.
I have other character evidence available to me in an affidavit and a statement from two people in New South Wales, Ms Turner and Mr Begg. They attest to his good character. Both persons employed the prisoner in different capacities. He is variously described as industrious and honest. Ms Turner described him as 'a trusted employee' who had financial responsibilities within her business but never miscarried. She lent money to the prisoner which was repaid promptly. Mr Begg, who employed the prisoner for almost four and a half years between 2012 and 2016, reflected upon the prisoner's industry and honesty. He said that the prisoner in his overall character 'relative to the many hundreds of people I have employed over many years' was such that he would 'comfortably position him within the top 10 per cent' and he would not hesitate to re-employ him.
The evidence in total supports the proposition, noting the elements of the offence, that the prisoner's involvement in the commission of the offence did not arise out of any aspect of dishonesty on his part. I have a psychological report prepared by Mr Sam Borenstein. It does not set out much information that is new. The prisoner expressed remorse to the psychologist. He conducted limited psychometric testing. That showed nothing abnormal about the personality traits of the offender nor it showed any evidence of mental illness or other matters of substance relating to his mental health.
Mr Borenstein noted the prisoner having a 'steep learning curve' in overtaking the business conducted in the ACT. The psychologist said there was nothing in his personal or clinical history to predict anti-social or criminogenic tendencies or nor were there any psychiatric or psychological disorders. The prisoner was assessed at a ‘low’ level of re-offending. This is consistent with the assessment of the pre-sentence reporter.
On many occasions, but not all the time, prisoners giving evidence in proceedings face the difficulty that the very character of their offending reflects adversely upon their credibility. Thus, the court is required to approach particular evidence relevant to the circumstances of the offending or otherwise with considerable circumspection.
In this matter, the prisoner's good character is not only relevant to the sentencing exercise as a mitigating factor but it is also relevant to the assessment of matters that are beyond the power really of the Crown to refute, but still may be required, at least on an evidentiary onus basis, to be established by the prisoner as otherwise to be taken into account in assessing the facts of the case. One such matter relates to the circumstance of the prisoner's arrest and the finding of some documents in relation to a person whose identity had been taken.
The prisoner dealt with this matter in his affidavit and gave evidence in cross-examination about it. The significance of the documents found in his possession may have been that the prisoner was more intimately involved in the activities of the group than he asserted. Because on one view of the evidence, that would be the only reason for him to have these documents in his possession. These documents were referred to in part of the offender's affidavit as the 'girlfriend letters'. The Crown quite properly points to the fact that when police searched the prisoner's home he did not give an explanation for his possession of the documents.
In fact at that time, from my reading of the transcript of the discussion had with police at his home, he did not have a clear recollection at all of how the documents came into his possession. But having regard to the evidence in his affidavit and his evidence in cross-examination, I accept his account that his possession of those documents was entirely innocent and not related to the circumstances of the offending.
There are a number of reasons in addition to conclude that this was so. However, the principal reason reflecting favourably upon the assessment of his credibility in this regard is that there were no other documents found in his possession apart from the material found on the mobile phone that would reflect a pattern of behaviour consistent with him using the documents to further the interests of the criminal group. It is fair to say that the prisoner was not expecting the police to come to his home on 3 September 2020. He was a person who had never had prior adverse contact with the police and had no suspicion of the activity of defrauding the financial institutions having occurred. He had made no use of the documentation for dishonest purposes.
The documents on his mobile phone that belonged to Vodafone in the name of a person whose identity was used to apply for credit cards was an isolated matter and entirely consistent, in my view, with the proper conduct of his business. As was earlier pointed out in respect of those identities and as well as other identities that were stolen, there is no evidence or suggestion that the prisoner was aware of or participated in the relevant applications that were made. The Crown took the court to a number of decisions that were said to be comparative authorities.
One such decision was Eliadis to which I referred and which I have cited. Other judgments include the decision of Islam v The Queen [2020] NSWCCA 236, Lee v R [2019] NSWCCA 15 and a decision of my own, Lahood. As was pointed out in the course of oral submissions, they are judgments that, apart from containing some guidance as to matters to be taken into account, provide little assistance by way of comparative sentencing purposes. In fact if anything, they demonstrate the final penalty I have settled upon is within the range contemplated by those authorities.
That having been said, it would appear from the detail available to me that a number of offences, referring to the offences in New South Wales particularly, were concerned with offences that carry greater maximum penalties than the one with which I am now concerned.
With regard to the judgment with which I am most familiar, Mr Lahood's, I bear in mind that I sentenced him to two years three months imprisonment in respect of a sophisticated scheme of which he was 'a key member of the criminal group', which resulted in the creation of bank accounts and other financial services, having stolen the identities of numerous persons, where the offending was 'planned, sophisticated and professional', where the loss is of over $2 million for the financial institutions.
He pleaded guilty, but had a prior criminal history, some of which occurred (including offences that I was concerned with) while on conditional liberty. Of course, it was not a vital matter in Mr Lahood's case, but the Lahood family is a well-known criminal group in New South Wales, of which this offender was a willing participant. When I sentenced him to imprisonment I did so in the context of having to impose other sentences that were of greater length involving imprisonment. Thus the consideration of alternatives to full-time imprisonment for the offending that he had committed did not arise.
With regard to the discount I have settled upon, I have already referred to that. The Crown conceded that the current charge was pleaded to – I am using her words now - at the 'first opportunity' after that charge was filed, although I accept the prisoner pleaded guilty not at the first opportunity, in the sense that if he had suggested the charge, that was ultimately settled upon by the Crown, and the Crown accepted that, he may have pleaded guilty at an earlier time. But it seems to me, with the greatest of respect, that the charge that he ultimately pleaded guilty to was somewhat ‘out of left field’ to those particular charges that were brought against him in the first instance.
In my view, the prisoner could not have any control over the filling of the charge that was ultimately brought. It was not a charge that could be seen as a natural statutory alternative to the charges initially laid and for which the offender had been originally indicted. The Crown sought to rely upon the document prepared at the Criminal Case Conference. That I permitted to be accessed during the proceedings as possibly showing on the part of the prisoner either delay in offering a plea of guilty or, alternatively, in some way diminishing the utilitarian benefit of the plea, having regard to the timing of the plea in relation to the date the trial was listed or reserved.
It is interesting to note the document in question noted that the prisoner was maintaining pleas of guilty 'to the charges specified in the indictment', but the document also notes that the Crown had indicated 'it may be amenable to rolling up charges as a means of resolution, but had not had the opportunity to discuss this matter'. And further, it is noted in the document that there was 'no formal offer' made by the accused in those circumstances.
There is no suggestion the accused did not wish to participate in the conference or was uncooperative in the conduct of the conference. The reality was that the case now before the court was not on the table for the prisoner to consider at the time of the conference and thus, in those circumstances, the Crown in its contentions cannot draw comfort from the circumstances of the conference or the outcome of the conference to suggest that the prisoner's plea of guilty was not entered at the first reasonable opportunity.
I am very mindful, of course, of the terms of section 35 and the concern with consideration of matters relating to the determination of whether there should be a reduction of sentence by reason of a plea of guilty in circumstances where there is a real likelihood that a sentence will be one of imprisonment. This provision has been discussed in a range of decisions, some of which were noted in the Crown's submissions, very helpfully, as reflecting an appropriate discount upon the otherwise appropriate sentence, with the primary consideration being 'the utilitarian value of the plea', which will largely be determined by 'the timing of the plea'.
In that regard, I note, for example, the decisions of Cranfield v The Queen [2018] ACTCA 3 and particularly at [37], [38]; Blundell v The Queen [2019] ACTCA 34, particularly at [12], [14]; and R v Nicholas, R v Palmer [2019] ACTCA 36, particularly at [39], [52], [53].
As has been held, the utilitarian value of the plea includes a range of factors, including savings of time and cost, relieving witnesses from giving evidence, the avoidance of often prolonged pre-trial legal applications, as has been noted in the authorities. In my view, there was no opportunity for the prisoner to plead guilty at the Criminal Case Conference, because there was nothing upon which he could plead that was consistent with his version of events.
I note the range of discounts said to be appropriate where matters are not accepted or settled at a Criminal Case Conference. But this case is very different from the matters discussed in those decisions and as I said, the loss of utilitarian value ultimately in these circumstances does not fall at the feet of the prisoner. Of course, the discount cannot be 25 per cent in the context of the overall consideration of the utilitarian benefit. But it should, in my view, be greater than 15 per cent, given the matters that I have identified.
With regard to the issue of reparation, the Crown's submissions were, having regard to the terms of section 19 of the Act, that I should make orders for reparation as sought by the Crown to each of the financial institutions. I need not reiterate the terms of the legislation. However, in order for an order to be made pursuant to the section, it is the case the legislation provides that the proof of loss or expense must be established as a 'direct result' of the commission of the offence.
The terms of this provision and the application of the section have been considered in a number of cases to which I have been referred, but for the purposes of this judgement, I refer to R v CA (No 2) [2016] ACTSC 371; 316 FLR 49, particularly at the Chief Justice's judgment at [23]. Her Honour in that judgment pointed out that there is a distinction between the broader category of claimant who has suffered injury or loss as a result of or by reason of an offence, and the narrower category of claimant who has suffered injury or loss as a 'direct result' of the particular offence to which a person has pleaded guilty.
A claimant can only recover loss where, as a matter of common sense and experience, as her Honour said, the offence caused the loss. There must be a 'close and significant connection between the loss suffered in the offence'. If a claimant has suffered a loss by indirect means, it cannot recover. In my view, the conduct prosecuted by the Crown or admitted by the prisoner constitutes an indirect loss to the financial institutions.
It would of course have been different if the prisoner had been found guilty of the original charges brought against him of being 'knowingly concerned in another person obtaining a financial advantage' or if the Crown had established that the accused had knowingly participated in the activities of the criminal group. However, there is no evidence that the prisoner was knowingly concerned in obtaining the relevant financial advantage and his pleas of ‘not guilty’ still stand in relation to those matters. I thus decline to make the reparation order.
In sentencing the offender I have had regard to section 7 of the Sentencing Act, which sets out the purposes of sentencing under the ACT legislation. The purposes of sentencing are various, as has been pointed out in the decision of Veen v The Queen (No 2) [1988] HCA 14; 164 CLR 465, from which four of the seven current purposes of sentencing emanate. The majority of the High Court in Veen (No 2) said the purposes of sentencing were like guideposts; sometimes they pointed in opposite directions.
In this particular matter, for abundant clarity, I am mindful of the fact that I must ensure the offender is adequately punished for the offence. I am required to prevent crime by deterring the offender and other people from committing same or similar offences.
I do not believe there is a need in all the circumstances to protect the community from the offender. I have to make him accountable for his actions, denounce the conduct that he admits and recognise the harm ultimately caused to the victims of the crime, particularly the harm done to the financial institutions and the persons whose identities were stolen.
I am required to promote his rehabilitation in my view. However, this is not a case, whilst there is a need for consideration of general deterrence, requiring specific deterrence in this instance because of his pro-social lifestyle before and after the offending and the lack of dishonest intent. I have also had regard to section 10 of the Act, noting that section 10 provides that a sentence of imprisonment can only be imposed if the court is satisfied, having considered possible alternatives, no other penalty is appropriate. However, in considering the imposition of a term of imprisonment, albeit suspended, I am mindful of the observations of Howie J in the decision of Zamagias v The Queen [2002] NSWCCA 17 and his observation as to the practical effect of the imposition of a term of imprisonment, albeit suspended.
I have already referred to section 33. There is no need for me to go through the various relevant matters. They may be identified from the judgment that I have given.
Thus, in the circumstances of the matter, I have concluded that the penalty to be imposed, with a discount of 20 per cent for the utilitarian value of the plea of guilty should be a term of imprisonment. There is no other form of penalty that can be imposed in the circumstances. But having regard to both the objective character of the criminality and the subjective circumstances of the offender, I should permit that term of imprisonment to be suspended.
HIS HONOUR: In relation to the offences to which you pleaded guilty, I record a conviction. You are sentenced to two years' imprisonment, reduced from two years and six months' imprisonment.
The sentence of imprisonment is wholly suspended pursuant to section 12 of the Crimes (Sentencing) Act 2005 (ACT) on the condition that you enter into a good behaviour order for a period of three years, commencing on 3 February 2022, and concluding on 2 February 2025, with core conditions as per section 86, Crimes (Sentence Administration) Act 2005 (ACT) without supervision.
| I certify that the preceding one hundred and nine [109] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Acting Justice Norrish Associate: Date: 10 March 2022 |
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