R v Khan

[2019] NSWDC 185

District Court

New South Wales

Medium Neutral Citation:	R v Khan [2019] NSWDC 185
Hearing dates:	16 – 17 April 2019
Date of orders:	17 April 2019
Decision date:	17 April 2019
Jurisdiction:	Criminal
Before:	Bennett SC DCJ
Decision:	Aggregate sentence of imprisonment of 6 years with a non-parole period of 4 years
Catchwords:	CRIME – Fraud
Legislation Cited:	Confiscation of Proceeds of Crime Act 1989 Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Procedure Act 1986 Road Transport Act 2013 Victims Rights and Support Act of 2013
Cases Cited:	Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 Callaghan [2006] NSWCCA 58
Category:	Sentence
Parties:	Regina (Crown) Tazeem Khan (Offender)
Representation:	Mr Ng (Crown) Mr Jiang (Offender)   Director of Public Prosecutions (NSW) (Crown) Criminal Law Group (Offender)
File Number(s):	2017/00333696

Ex tempore Judgement (revised)

1. These are the sentence proceedings part heard of Tazeem Ahmed Khan.

2. Mr Khan appeared before me yesterday for the hearing on sentence and after I had received the evidence and heard submissions I adjourned until today for judgement and sentence. He was presented to me upon an indictment containing 16 separate counts; in addition there were offences before me pursuant to s 166 Criminal Procedure Act 1986. There are also five offences to be taken into account when I impose sentence on count 12; these are for offences of goods in custody.

THE OFFENCES AND MAXIMUM PENALTIES

3. Counts 1, 2, 3, 4, 6 and 9 are contrary to s 192E (1) Crimes Act 1900; some of the offences are charged pursuant to par (a) of that subsection and others contrary to par (b). Those contrary to par (a) are for dishonestly obtaining property by deception and those contrary to par (b) are for having dishonestly obtained financial advantage by deception. The maximum penalty for the offences contrary to s 192E (1) Crimes Act is imprisonment for 10 years.

4. There are offences contrary to s 254(b) (ii) Crimes Act; these are for offences of using a false document to obtain a financial advantage. The maximum penalty specified for those offences is imprisonment for 10 years.

5. There is an offence contrary to s 154F Crimes Act of stealing a motor vehicle for which the maximum specified is imprisonment for 10 years.

6. There is an offence of threatening injury or harm to prevent information about an indictable offence being given to police contrary to s 315A (1) Crimes Act for which the maximum penalty is imprisonment for seven years, there is an offence contrary to s 192K Crimes Act of possessing identity information so as to commit an indictable offence for which the maximum penalty is imprisonment for seven years, and offences contrary to s 192J Crimes Act of dealing with identity information to commit an indictable offence for which the maximum penalty is imprisonment for 10 years.

7. There is no standard non-parole period for the purposes of Part 4 Division 1A Crimes Act for any of these offences.

8. When I impose sentence on count 12, which is an offence of dealing with identity information to commit an indictable offence, the offender has asked that I take into account five additional offences on a Form 1, which he has signed and which has been signed on behalf of the Crown. These five offences are of goods in custody in respect of items of property found in his premises when he was arrested. The maximum penalty specified for those offences is imprisonment for six months. The offender admitted his guilt in respect of each of those offences and confirmed his wish that they be taken into account. The sentence to be determined in respect of count 12 will be increased above that which would have been imposed had the offence been standing alone reflecting the purpose of sentencing described as specific deterrence, to reflect the overall misconduct upon which the offender engaged, and to provide the Court’s denunciation of his misbehaviour, and also to reflect the community’s entitlement to have retribution for the offending. I am aware of the guidance offered by Spigelman CJ in the guideline judgement dealing with Form 1 offences, the citation for which I shall include if called upon to review this judgement, and I have brought those principles to account. [1]

   1. Attorney General’s Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518

9. The offences before me pursuant to s 166 Criminal Procedure Act are eight in number; there are seven offences of driving whilst disqualified for which the maximum penalty is imprisonment for 12 months with a fine represented by 50 penalty units and an automatic period of disqualification of 12 months, which may be reduced to six months if the Court is minded to take that course [2] . I am not, on the material before me, persuaded to impose other than the automatic period of disqualification.

   2. The specification of this as the maximum penalty is correct. There is an addendum at the end of the judgement with reference to the relevant legislation.

10. The eighth offence before me pursuant to s 166 Criminal Procedure Act is knowingly produce a false or misleading document in purported compliance with the law of the State. The maximum penalty specified for that offence is imprisonment for two years and a fine represented by 200 penalty units.

THE UTILITY OF THE GUILTY PLEAS

11. The offender was charged in court with each of these summary offences and he pleaded guilty to them. This procedure is available to have all outstanding matters, including the summary offences, disposed of in the one hearing.

12. Although the accused was presented by indictment and upon arraignment he pleaded guilty to each of the 16 counts on the indictment, this arose as a consequence of some technical issue of which I am not precisely aware requiring that there be an indictment ex officio to have the matter brought before the Court. The offender had before then pleaded guilty in the Local Court to the various offences when presented before a magistrate by way of court attendance notices and the benefit he has provided, or in other words the utility of the pleas of guilty entered in the Local Court, must carry through to his benefit at this stage even though he was presented by way of an indictment. Similarly the pleas of guilty to the summary offences that are before me by way of s 166 Criminal Procedure Act were the subject of pleas of guilty entered at the first opportunity in the circumstances and thus in respect of all of these offences there is to be a discount of 25% applied to the indicative sentences which I have settled upon. The ultimate sentence in respect of each matter though might reflect a discount slightly more than 25% to achieve indicative sentences expressed in years and months, abandoning any odd days that might result from a strict application of that percentage to the starting point.

13. I propose an aggregate sentence with appropriate accumulation and concurrence bringing the individual sentences together to ensure that the punishment to which the offender is exposed does not exceed the totality of the misconduct upon which he engaged, or perhaps expressed more correctly, to ensure that his punishment reflects the totality of his offending and does not exceed that which is appropriate for all that he has engaged upon in this range of crimes that he has committed.

PRE-SENTENCE CUSTODY

14. He has been in custody up until the present time after he was arrested on 3 November 2017. He was on parole for an offence of driving whilst disqualified when he engaged upon this misconduct; the parole was revoked on 10 August 2017. The report leading to that decision is included in the Crown bundle. Apart from the misconduct upon which he engaged in breach of parole he was said to have provided borderline responses to supervision required of him. The Parole Authority was called upon to consider an application to rescind the revocation order made on 29 November 2017 but it declined to do so. The balance of parole required to be served was four months and 14 days and that expired on 16 March 2018. I have a discretion with regard to the commencement of this sentence; it is not mandatory that I commence the sentence today, the expiration of the balance of parole as made clear by Simpson J in her discussion in the decision in Callaghan [2006] NSWCCA 58 I have a discretion and that will be informed, by amongst other things, the fact that once parole is revoked it does not automatically follow that it cannot be reinstated in any given case if the circumstances justify that course. In this instance, as I have indicated, the Parole Authorities were called upon to review the order of revocation and asked to consider a rescission of it but they chose not to take that course. It is not appropriate that I commence the sentence today on the date of arrest but I do not propose to delay commencement until the expiration of the balance of parole, I propose that the sentence imposed today shall commence on 3 January 2018.

THE FACTS

15. Before I announce the individual sentences I shall turn to the facts. Because of the number of matters upon which I am to determine sentence I shall refer to the individual offences and their particulars as I summarise the misconduct upon which the offender engaged.

16. Events commenced on 22 July 2017 when the offender’s cousin AR left Australia on a family holiday. Before doing so he set up a security alert system with a company that would provide alerts should there have been some attempt to use that person’s details held with any creditors or financial institutions, as for example in this instance any attempt to manipulate bank facilities that had been extended to the person AR, the offender’s cousin.

17. The first offence count 1 on the indictment alleges that the offender between 5 August 2017 and 16 August 2017 at Sydney, by deception, namely purporting to be authorised to apply for and use a Visa credit card in the name of AR, dishonestly obtained a financial advantage, namely $36,628.40. This offence is contrary to s 192E (1) (b) Crimes Act, the maximum penalty specified as I have indicated is imprisonment for 10 years.

18. While AR was outside of Australia his Westpac account was accessed without permission or knowledge by the offender who sought a credit card. The offender listed himself as an additional card holder, he changed the email address for the account and the mobile phone number associated with the account. The number he specified is that which he used. A credit card was issued, number XX56. The offender activated this on 10 August 2017.

19. On 8 August 2017 AR received an alert from the security company advising that an additional card issued in his name was sought with the facility extended to $45,000. Upon his return to Australia on 16 August 2017 AR notified his bank and the credit card was cancelled. However, between 10 August 2017 and 17 August 2017 the offender purchased various products and obtained cash advances to the total value of $36,628.40. These included the following:

• On 10 August 2017 he attended Motor Galleries at Five Dock, a used car yard, and purchased a Toyota Corolla registered number xxx 65V for $8,500 using the credit card.

• On 12 August 2017 he attended a Direct Factory outlet at Homebush and using the credit card purchased clothing from a business styled Industry Clothing for $1,114.35, clothing from Burberry for $475, clothing from Nautica clothing store for $1,010, clothing from Ralph Lauren for $804, a pair of sunglasses from Florentine Eyewear for $255, clothing from Hugo Boss for $289, clothing from Cotton On Clothing for $239.80, and shoes from Platypus totalling $256.95. He was captured by CCTV on that last transaction.

• On 15 August 2017 he used the credit card to order a Queen Size bed from a business at Rose Bay for $1,069. He gave an address at Parklea and gave his personal mobile number and email address.

• On 16 August 2017 he attended the premises of PB at Bella Vista and for the services there provided used the credit card to pay a sum of $220.

20. For that offence, bringing into account the subjective material to which I shall come, I have identified as appropriate a sentence of 2 years and 6 months.

21. Count 2 is an offence contrary to s 192E(1) (b) Crimes Act, on 3 October 2017 at Chester Hill where, by deception, purporting to have authority to sell the white Toyota Corolla xxx 65V, the offender dishonestly obtained a financial advantage, namely $6,500.

22. In connection with this misconduct he also drove on three separate occasions whilst he was disqualified. The offender on 28 September 2017 attended Chester Hill Automotive driving there in the Toyota Corolla xxx 65V, he approached the owner of the business and advised that he wished to sell the motor vehicle, and asked whether the owner of the business knew of anyone who would buy it for $6,500. The owner referred to another person, CC, who was a licensed dealer, and who made contact and agreed to come and look at the vehicle. The offender left the vehicle at those premises. CC attended later in the day, inspected the vehicle, and agreed to pay $6,500 for it.

23. On 3 October 2017 the offender again drove to the Chester Hill Automotive; he produced a document purporting to be a receipt of purchase for the Toyota Corolla in the name of JH with an address in Merrylands. He handed two sets of car keys to the owner of the car yard and said he would return later to pick up the cash. Subsequently CC attended, paid the $6,500 over to the proprietor of the car yard and took possession of the vehicle, and later registered it into his business name. The offender returned driving a third time whilst disqualified and took the $6,500 and then left the business.

24. In respect of that misconduct I have identified as appropriate for the offence contrary to s 192E (1) (b) Crimes Act, imprisonment of 1 year and 6 months. For the drive whilst disqualified for each of those offences I have identified as appropriate a sentence of imprisonment of 6 months.

25. Count 3 is an offence contrary to s 192E (1) (a) Crimes Act. On 21 October 2017 at Five Dock the offender represented a Commonwealth Bank cheque to be a good and valid order for the payment of $29,500 and thereupon obtained two motor vehicles, a BMW registered number xxx 01B and a Mercedes Benz C280 registered number xxx 57V. The BMW was valued at $11,000 and the Mercedes at $18,000 but the offender provided the cheque in the sum of $29,500 commenting that the $500 was a reward for processing the transaction so quickly. He requested that both vehicles be placed in the name of PM from a Seven Hills address. He had the tax invoice signed and handed the cheque to the salesman. He left the premises.

26. The cheque was drawn upon an account which he had closed before then, and therefore the cheque was a valueless document.

27. For that offence I have identified as appropriate a sentence of imprisonment of 2 years and 3 months.

28. I repeat that in respect of each of these I have applied a discount of 25% for utility of the pleas of guilty.

29. Count 4, count 5 and a further count of drive whilst disqualified are the next offences I am dealing with.

30. Count 4 is contrary to s 192E (1) (b) Crimes Act and alleges that on 22 October 2017 at Newington where, by deception, namely purporting to have authority to sell the BMW xxx 01B, he obtained a financial advantage of $9,000.

31. Count 5 on the same day alleges he used a false document, namely a handwritten receipt for the purchase of the BMW, indicating PM to be the seller, knowing that the document was false and intending to induce the victim JT to accept as genuine that document to obtain the financial advantage of $9,000.

32. In more detail the facts of that misconduct are that on Sunday 22 October 2017 the victim, JT, searched on Facebook for a second hand BMW and found this vehicle to be available. There was a picture of the offender, contact was made, and JT agreed to meet with the offender at Newington. The price for the vehicle was agreed at $9,000. They met at about 7.30pm that day at Newington Marketplace; JT examined the vehicle and took it for a test drive. He agreed to pay the $9,000; it was paid in two parcels, $3,000 in cash and $6,000 transferred electronically to the offender’s NAB account. The offender produced the receipt in the name of PM; she had no knowledge that her details were being used for this purpose. The offender of course drove whilst disqualified once again, and the indicative sentence for that offence is imprisonment for 6 months.

33. For count 4 indicated is a sentence of 1 year and 8 months and for count 5 a sentence of 1 year and 8 months.

34. Sequence 35 is the final offence on the s 166 certificate contrary to s 307C (1) Crimes Act. This is the offence of knowingly producing a false or misleading document being in purported compliance with the law of the State. On 23 October 2017 the offender attended Blacktown premises of Services New South Wales for the RMS facilities there. He completed an application for transfer in respect of the Mercedes Benz xxx 57V. He provided the details of PM as the seller and JH as the new registered owner and provided his details as to the authorised representative. He also provided a handwritten vehicle receipt for the purchase of the Mercedes with the particulars of those individuals to which I have referred.

35. Between 23 October 2017 and 25 October 2017 the offender changed the number plates of the Mercedes to xxx 13U. I am not quite sure what this means; whether he registered the vehicle under the new registration number or simply affixed plates to it. In any event he is not charged with misconduct in respect of that particular step. For that offence I have identified as an appropriate sentence imprisonment for 12 months.

36. Count 6 is contrary to s 192E (1) (a) Crimes Act, by deception obtaining $79 worth of fuel representing an intention to pay for that product. At the same time he drove whilst disqualified. The particulars of the offence are at 3.34am on 25 October 2017 he drove the Mercedes Benz bearing the new registration plates to the Coles Express Service Station at Greenacre. The station attendant authorised the use of the pump and the offender obtained fuel to the value of $79 and then drove away without making any attempt to pay. For that offence I have identified as appropriate an indicative sentence of imprisonment for 3 months and for the driving whilst disqualified a sentence of 6 months.

37. Count 7 and count 8 as the Crown submitted are the more serious offences on this indictment; there is also another occasion of driving whilst disqualified. Count 7 is the offence of stealing the BMW 320 I xxx 01B on 25 October 2017. He stole it, I might say at this point, from JT after the transaction whereby the vehicle was acquired by the hapless JT upon the misrepresentations made by the offender. Count 8 is the offence of threat to cause injury to JT intending to influence him not to bring material information about the offence of stealing the motor vehicle to the attention of police contrary to s 315A(1) Crimes Act. As I said, the maximum penalty for that offence is seven years imprisonment and 10 years for stealing the motor vehicle.

38. The offences occurred in the following circumstances. On 25 October 2017 JT received a text message from the offender by mobile phone asking to meet because he wanted to retrieve some items left in the boot of the car. JT agreed and about 9.30am drove the vehicle to Lidcombe where he saw the offender. He stopped the vehicle with the engine running with the keys in the ignition. The offender walked to the vehicle and asked JT to open the boot. JT did so. As he opened the boot the offender entered the vehicle and drove away as JT rushed to the driver’s door to try and pull the keys from the ignition. The offender said to him, “Don’t call the police” and then drove off towards Lidcombe. The matter was reported to the police. Prior to attending the Auburn Police Station to report the matter JT spoke to the offender on the phone three times in the course of which in Hindi the offender said to him that if he complained to the police he would “100% kill him”. The offender was aware of where the victim was living, he said he could come to his house to kill him and that even if he went to gaol he would either wait until he was released or would send his friends to kill him.

20. I agree with the Crown’s submission the offences are serious matters and are the more serious of all of the matters that are before me. Thus for count 7 I have identified a sentence of 2 years and 9 months and for count 8 a sentence of 1 year and 9 months. Driving whilst disqualified is to be the subject of an indicative sentence of imprisonment for 6 months.

21. Count 9 and count 10 are offences of obtaining advantage by deception contrary to s 192E (1) (b) Crimes Act. There is an offence of driving whilst disqualified in the same sequence of misconduct and there is also the offence count 10 of using a false document to obtain a financial advantage contrary to s 254(b) (ii) Crimes Act. On 25 October 2017 SD searching for a BMW saw the grey BMW for sale with the photo depicting the motor vehicle and the number xxx 01B. He sent the offender a message via Gumtree and provided his contact details and a price of $6,500. Shortly after the offender called SD and then sent a text message arranging to meet in Homebush. About 3.40pm that day SD arrived in Homebush, met with the offender, the offender exited the driver’s seat of the Mercedes he was driving, he wrote a handwritten receipt for the sale of the BMW and it was signed by SD. This represented the seller to be PM who had no knowledge her details were being so used. SD handed over $6,500 in cash; the offender handed over one set of car keys and said that there was only one set available. The offender then entered the Mercedes Benz and drove away and sent a message shortly thereafter to SD telling him to register the vehicle that day.

22. For the drive whilst disqualified the sentence I identify is imprisonment for 6 months. For count 9 the sentence I identify is 1 year 8 months and for count 10, 1 year and 8 months.

23. Count 11 is the offence of possessing identity information to commit an indictable offence contrary to s 192K Crimes Act. Count 12 is an offence of dealing with identity information to commit an indictable offence and it is in respect of that that I am to take into account the additional offences of goods in custody. Counts 13, 14, 15 and 16 are offences of dealing with identity information to commit an indictable offence contrary to s 192J Crimes Act.

24. On Friday 3 November 2017 the police attended the premises occupied by the offender and executed a search warrant, this was at a premises in Merrylands. During the course of the search they found the items the subject of these charges. There was an ANZ bank card in the name of JH. There was a Commonwealth bank card in the name of AK. There was an ANZ visa card in the name of AR, and a Pakistani passport in the name of SN. There was a Seven Hills RSL card in the name of JJH. There was a 2018 diary containing the offender’s handwriting with personal identity information belonging to JH, MK, AM, PM; the information included names, dates of birth, licence details, Medicare numbers and bank details. There were three mobile phones found in the offender’s possession, 11 SIM cards, paperwork relevant to the Mercedes Benz, clothing that had been previously purchased in the conduct upon which count 1 has been crafted, cheque books from the Commonwealth Bank, Westpac and ANZ. One of the mobile phones was interrogated and analysed; there was information harvested from that relevant to all of this conduct including with regard to the motor vehicles and JT. The Mercedes Benz was located in front of the garage for the offender’s unit and inside of that there was an ANZ bank letter addressed to the offender, ANZ bank letters addressed to JH, and numerous other documents addressed to the offender, a certified copy of JH Medicare care and driver licence cards, certified by SHK of which JH had no knowledge, Commonwealth and ANZ bank cheques in the offender’s name, a BMW car key for the BMW xxx 01B that had been sold to SD, two mobile phone SIM cards, a handwritten receipt for the sale of the Mercedes Benz stating the seller as PM and the buyer as JH and a blue Lacoste bag containing a Prada wallet with numerous cards in the offender’s name.

25. He declined the opportunity to be interviewed. He had before then denied knowledge of the Mercedes Benz in which all of those items were found.

26. On 5 November 2017 the offender’s brother TK attended the offender’s residence and various items in the mail box. He returned on 20 November 2017 and found further material that had been delivered there. He opened this mail and noticed that the letters included bank cards in different names. He attended the police station and handed the material over to the police officers. The particulars of the documents there found are set forth in par 28 of the agreed statement of facts, I need not rehearse all of those items.

27. It is quite apparent that this was continuing misconduct on the part of the offender and that these further documents I would expect have found their way into further criminal conduct upon which he would have engaged but for the intervention by the police officers.

28. Turning back to the sentences for counts 11, 12, 13, 14, 15 and 16, in respect of count 11 possessing the identity information to commit the indictable offences I have identified an appropriate sentence of 2 years; for count 12 taking into account the Form 1 offences I have identified as appropriate a sentence of 2 years and 6 months and for counts 13, 14, 15 and 16 respectively dealing with identity information to commit an indictable offence I have identified as appropriate sentences of 1 year and 8 months in each case.

THE OFFENDER

48. I have the record of antecedents accumulated by the offender; he was born in 1993. He will this year reach his 26th birthday. He has a record of antecedents extending from November 2014 when he first appeared in court. He was then 21 years of age and between that age and today apart from when he has been in custody has continually engaged upon offending. He began with driving using a false name or home address, driving negligently and driving whilst disqualified, possessing prohibited drug, further offence of driving whilst disqualified, giving a false name, using an unregistered vehicle, exceeding the speed limit by more than 30 kilometres per hour, possessing a prohibited drug, further offence of driving whilst disqualified, again providing a false name, possessing equipment for the administration of drugs, again possessing prohibited drugs, further offence of driving whilst disqualified, an offence of fraudulently or altering a licence. He appealed to the District Court from a sentence imposed to the drive whilst disqualified; it appears there was no adjustment to the sentence imposed by the magistrate. Thereafter he appeared for driving under the influence of alcohol or a drug, possessing prohibited drugs, possessing prescribed restricted substances, driving and giving a false name, driving when an application for licence has been refused, driving under the influence yet again, driving whilst disqualified, again driving under the influence, further offences of driving under the influence, goods in custody, possessing or attempting to possess anabolic or androgenic steroidal agents.

49. It is apparent that he has had a problem with alcohol and drugs because of the frequency with which he has been before the court for driving impaired by reason of those substances. His disqualification period until further order today does not expire until 2057. His driving record is before me, it is lengthy extending over six pages reflecting his status as a disqualified driver and the extent to which he is an habitual offender.

50. I have the parole documents as already discussed and there is a sentence assessment report which is important to note. His intention is to return to live with his parents upon release; he attributes his fall from grace to the failure of his business in 2013 after which he was employed by his parents in their restaurant. His criminal history correlates with the failure of his business and his bankruptcy that followed, which occurred within a period of time when he was engaging with anti-social peers and misusing prohibited drugs and developing a gambling habit. He said he used drugs and gambling as a means to mask his stressors, he said he committed his offences to fund these habits. He has expressed motivation to address his issues but this is assessed as questionable by the author of the report. His responses to community service and supervision have generally been unsatisfactory, he is assessed with a medium risk of reoffending and there are recommendations with regard to his conditions should other than a custodial sentence be imposed.

51. In this case the line in s 5 of the Crimes (Sentencing Procedure) Act 1999 was clearly crossed and there is no alternative but to incarcerate the offender for the plethora of misconduct upon which he engaged.

52. I have been provided with a letter from the offender expressing his regret and his wish to rehabilitate, also certificates of attendance in respect of misuse of prohibited substances and health survival tips. The letter included reference to his having suffered a significant injury. He writes of having a prolapse of his disc at the L4/L5 level of his spine and a C7 fracture in his neck which led to a large period of time from work causing him to lose his business and then his house and then evolving to self-medication and the use of “ice” otherwise described as methylamphetamine, cocaine, heroin and other types of pills. He said he was suffering depression and since his arrest he has done his utmost to stay away from prohibited substances.

53. There is nothing about the injury to his neck or the lumbar spine in the sentence assessment report. If that was of such profound impact I would have thought there would have been some representation to that effect attributed to him. There is no evidence before me of any management of any such condition whilst he is in custody, there is no evidence before me of the event, the collision or whatever it might have been that is said to have caused that injury, there is no evidence before me of any treatment or management of that condition by a healthcare professional which I would have thought would have been likely at least in the form of some investigation to ensure the extent of the injury and any consequential limitation.

54. I have a psychologist report by Sam Borenstein written on 9 April 2019. I made it clear in the course of argument yesterday that I did not accept the opinions offered by the psychologist; they depend entirely upon the veracity of the representations made by the offender. Moreover, the assessment made was not in any face-to-face meeting but by way of an audio-visual link on 8 April 2019 between the offender where he was held and the psychologist in the Legal Aid office in Sydney. With those limitations, although there is no indication in the report that this impacted, it must have been challenging for the psychologist to offer a reliable opinion upon what was said by the offender in the course of whatever the consultation process might have involved.

55. In this document there is reference to his parents having kicked him out of their house because he could not afford rent and had no work. He is attributed with the use of one ball of methylamphetamine per week, two grams of cocaine per week, and half a gram of heroin per week plus misuse of prescribed medications Oxycodone and Xanax four or five times per day. There is reference to a general practitioner from Rouse Hill but there is nothing before me from that doctor. There is reference to a motor vehicle accident in 2013 but nothing more. There is reference to what is said to be a fractured cervical vertebra C7 with a disc bulge and impingement at L4/L5 which I take to be a reference to the suggestion that there is pressure upon the sciatic nerve giving rise to the need for oxycodone for pain relief.

56. He is said to have been sleeping in his car independently for a week. He battled with depression since 2013 because he lost his business, a service station, leaving him with a debt of $300,000. He spoke of “always being down, unable to sleep, without motivation”. There is said to be correlation between the collision or accident in 2013, the loss of the business and the deterioration with his present circumstances. He is said to have participated in a MERIT Program over six weeks, but there is nothing before me regarding that. He was self-medicating against his suggested worsening depression and chronic pain. Apart from all this health was satisfactory.

57. The collision is described as a high speed rear end collision, it is said that he was not hospitalised but was treated by a general practitioner. If he complained of having a fractured C7 vertebra and a prolapsed disc with impingement I would have thought it would have been appropriate for any general practitioner to have that investigated with appropriate radiological examination but there is nothing before me regarding that.

58. He speaks of his parents having always been working leaving inadequate care for the children. No doubt his parents have worked hard throughout their lives to provide for the family. It is noted there is no indication of any psychiatric disorder or psychosis and thereafter the opinion is formed upon the impact of the alleged collision, the alleged spinal injuries and thereafter the deterioration to his present misconduct, which has included as I have indicated a raft of offending from that point on. It is suggested that he has major depression and chronic pain as a consequence of the collision but there is nothing before me about any treatment or management of that.

59. I find that the report is of no assistance in the absence of evidence supporting the representations upon which the opinions are formed or further material speaking to the investigation of those matters if there was any investigation undertaken.

60. Mr Jiang who appeared yesterday was alerted to my circumspection and indicated he could not take the matter any further and thus I am left to determine the sentence upon the material that I have.

SUBMISSIONS AND CONSIDERATION

61. I have written submissions provided on behalf of the offender. I am invited to the view that the totality of the offending should be assessed within the context of there being groups of offences upon which he engaged.

62. The reality of the matter is that he engaged upon misconduct that extended over a significant period of time involving multiple episodes of criminality. With reference to the indictment alone this commenced on 5 August 2017 and continued through until 22 November 2017. There was a systematic course of conduct upon which the offender engaged. There was a measure of sophistication employed in the commission of these offences.

63. He is to be assessed it was said against the inevitability of detection because of the opportunities he gave for his identification to be established. It is also said that he was engaged upon this misconduct so that he could start afresh in life and I am invited to consider the nature of the items that were purchased in the conduct upon which count one is brought including the fact that he bought himself a Queen Size bed which was delivered or to be delivered to an address connected to him.

64. The fact that he was so engaged in circumstances that would leave him exposed to prosecution does not indicate other than he was not the most accomplished criminal, but that does not provide him with much comfort I am afraid. The fact is this was extensive criminality at the expense of others including individuals and corporations, it was sophisticated and it was persistent. I have taken into account the amounts involved and as I have indicated the most serious of the offences as submitted by the Crown were the theft of the motor vehicle previously the subject of a fraud joint transaction taken from the victim who was before then a victim in the fraud and who then suffered the threat of violence including death should he have the audacity to report the matter to the police. Fortunately he was not discouraged from doing so.

65. Nothing less than a sentence of imprisonment of 6 years is appropriate in this case and accordingly I shall announce a head sentence of 6 years. I find that there are special circumstances limited though they might be. There is his relative youth. This is a significant period of time in custody. Although he has suffered imprisonment previously to which I have regard this is a significant period of imprisonment. He must be some burden with regard to drugs. His self-induced intoxication from drugs does not provide him with any mitigation by force of s 21A (5AA) Crimes (Sentencing Procedure) Act. In the absence of evidence upon which I could conclude as a fact, even on the balance of probabilities, that whatever misuse of drugs arose as a consequence of whatever he might have suffered in the alleged motor vehicle collision, in the absence of that evidence I am not prepared to find that his misuse of drugs was anything more than a decision he made unwisely at some point after 2013.

66. The continuing disregard of his obligations as a driver, driving whilst disqualified, also does not sit comfortably with what is advanced on his behalf with regard to his explanation for criminal misconduct, which I find was to improve his financial position. In respect of each of these offences including the charges before me pursuant to s 166 of the Criminal Procedure Act and those appearing on the indictment, the offender is convicted. I have already announced what I believe to be the appropriate indicative sentences.

THE AGGREGATE SENTENCE

67. I impose an aggregate sentence of 6 years commencing on 3 January 2018 to expire on 2 January 2024. I specify a non-parole period of 4 years to expire on 2 January 2022. The offender will be eligible for consideration of parole at the expiration of the non-parole period; supervision will be a matter for the Parole Authorities to be assessed at that time.

68. The exhibits are to remain on file for such period as the parties might require and I will certify the Form 1 confirming I have taken the additional offences into account.

FURTHER ORDERS

69. By consent pursuant to s 18(1) Confiscation of Proceeds of Crime Act 1989 a silver ZTE mobile phone IMEI 863356031435797 seized from the premises in Merrylands on 3 November 2017 is forfeited to the State. Pursuant to s 18(1) of that Act a 2018 black diary seized from that unit is forfeited to the State. Pursuant to s 18(3) Confiscation of Proceeds of Crime Act the value of the property is considered to be at $100 and pursuant to s 19(3) (a) Confiscation of Proceeds of Crime Act the property forfeited may be disposed of forthwith and I sign that document today 17 April 2019 and it can be sealed and copies provided.

70. Pursuant to s 97 of the Victims Rights and Support Act I order compensation to be paid to JT in the sum of $9,000 and to SD in the sum of $6,500.

ADDENDUM

71. When reviewing the draft of this ex tempore judgement in anticipation of publishing the perfected document I realised that the information in the Crown Sentence Summary relating to the offences of drive whilst disqualified was inconsistent with the legislation providing for periods of disqualification as promulgated at the time of the offences. The Crown was notified and asked to provide accurate particulars of the periods of disqualification to which the offender was exposed by these offences at the time they were committed, in light of the amendments made to the legislation reducing the disqualification periods that had previously been specified. In response the Crown provided information with the sequence particulars of the offences, the provisions which applied at the time the offences occurred and the effect of the amendments upon offences committed before the amendments were introduced.

72. I shall quote directly the information provided:

Offence	Date of offence
Seq 16	Drive whilst disqualified (2nd offence) s.54(1)(a) Road Transport Act 2013	25 October 2017
Seq 17	Drive whilst disqualified (2nd offence) s.54(1)(a) Road Transport Act 2013	22 October 2017
Seq 19	Drive whilst disqualified (2nd offence) s.54(1)(a) Road Transport Act 2013	28 September 2017
Seq 21	Drive whilst disqualified (2nd offence) s.54(1)(a) Road Transport Act 2013	3 October 2017
Seq 22	Drive whilst disqualified (2nd offence) s.54(1)(a) Road Transport Act 2013	3 October 2017
Seq 25	Drive whilst disqualified (2nd offence) s.54(1)(a) Road Transport Act 2013	25 October 2017
Seq 28	Drive whilst disqualified (2nd offence) s.54(1)(a) Road Transport Act 2013	25 October 2017

“The Crown sentence bundle (Exhibit A) identified the applicable default and minimum disqualification periods for the above offences as “Default period: 12 months, Minimum period: 6 months” (the “amended disqualification periods”). The amended disqualification periods were drawn from s.205A Road Transport Act, which commenced on 28 October 2017.

Although the seven offences on the s.166 Certificate were committed prior to the commencement of the amended disqualification periods, it is understood that the amended disqualification periods were applicable when his Honour passed sentence on 17 April 2019.

Schedule 4, Part 7, clause 63 Road Transport Act relevantly provides;

63   References to first, second or subsequent offences

A reference in a provision inserted or amended by the amending Act to a first, second or subsequent offence includes a reference to a first, second or subsequent offence committed before the commencement of the amending Act.

As such, s.205A Road Transport Act is applicable to offences committed before 28 October 2017– particularly when clause 63 makes refers (sic) to first offences committed before commencement.

Support for the applicability of the amended disqualification periods is also drawn from s.19 (2) of the Crimes (Sentencing Procedure) Act which is in the following terms;

(2)    If an Act or statutory rule reduces the penalty for an offence, the reduced penalty extends to offences committed before the commencement of the provision of the Act or statutory rule reducing the penalty, but the reduction does not affect any penalty imposed before that commencement.

COMMENCEMENT OF DISQUALIFICATION

Section 207A Road Transport Act governs the commencement of the disqualification period and provides that unless the court orders otherwise, the disqualification commences on the day of conviction (17 April 2019). In the absence of any orders of the Court, the RMS would commence the disqualification on the day of conviction, namely 17 April 2019.”

73. I am grateful to the Crown for the further assistance. I shall not make further orders in relation to the disqualification periods to which the offender is subject.

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Endnotes

Decision last updated: 17 May 2019