R v Lahood - [2019] NSWDC 646

District Court

New South Wales

Medium Neutral Citation: R v Lahood [2019] NSWDC 646
Hearing dates: 5 August 2019
Decision date: 07 August 2019
Jurisdiction: Criminal
Before: Norrish QC DCJ
Decision:
Aggregate sentence 7 years imprisonment, non-parole period 4 years 6 months

Catchwords: CRIME – Sentence – dishonestly obtain financial advantage by deception – possess equipment to make identification documents – possess identification information - joint criminal enterprise – key member of criminal group – numerous stolen identities – created bank accounts, credit card accounts and personal loans in other people’s names – on line applications over 2 year period – over $2 million in total - sophisticated operation – stole mail from mail boxes to create identities – possessed computer program capable of generating false documents – passports, bills, driver’s licences – measuring totality of criminality – overlapping offences – previous offending with similar offences – support drug habit and lifestyle – drugs helped with pain relief and anxiety – successful completion of Drug Court program – current offending commenced 3 months after completion of program – possible “Conduct Disorder” or ADHD – aggravating factor – on conditional liberty – pleas of guilty – expressions of remorse – special circumstances – medium to high risk of re-offending.
Legislation Cited: Crimes Act 1900; s 93T; s 192E(1)(b); s 192J; s 192K;
s 192L; s 193B(2)
Crimes (Sentencing Procedure) Act 1999; s.9; s 53A
Cases Cited: Johnson v R (2004) 78 ALJR 616,
Mill v R (1988) 166 CLR 59
Pearce v R [1998] 194 CLR 610
R v Hammoud (2000) 118 A Crim R 66
R v Holder [1983] 3 NSWLR 245
R v MMK (2006) 164 A Crim R 481
R v XX (2009) 195 A Crim R 38
Category: Sentence
Parties: Regina (Crown)
Joseph Lahood (offender)
Representation:
Counsel:
Mr Ainsworth (offender)
Solicitors:
Ms Sawagid DPP NSW (Crown)
Ms Mate (offender)

File Number(s): 2018/00279384
Publication restriction: No

Judgment

Joseph Lahood appears today for sentence in relation to a number of charges for which he was committed for sentence from the Local Court. There is no dispute that he is entitled, in the context of the timing of the plea of guilty and the circumstances of the committal for sentence, to receive in respect of every sentence imposed upon him a discount of 25% to represent the utilitarian benefit of the pleas of guilty.
With regard to the specific charges, I do not propose to re‑read the particulars. I spent quite a considerable period of time clarifying the particulars and ensuring that Mr Lahood and his co‑accused Mr Ryan fully understood the character of the charges brought against them. But I need to refer to particular sequence numbers and the general particulars about those offences in order to reflect the comments I make about the totality of the criminality and the character of the offending.
By reference to the sequence numbers derived from the relevant “H” numbers, sequence 3, is an offence of possessing equipment to make identification documents. This offence is an offence contrary to s 192L of the Crimes Act 1900 and carries a maximum penalty of three years imprisonment. This was an offence committed between 11 May 2017 and 11 September 2018.
Sequence 4, which as it transpires is the most “significant” charge, is an offence of dishonestly obtain financial advantage by deception committed between 15 September 2016 and 11 September 2018. This is an offence contrary to s 192E(1)(b) of the Crimes Act 1900 and carries a maximum penalty of ten years imprisonment. This involves the opening of what are described as 447 “banking or transactional accounts”. The sum involved is $2,013,927.32.
This is the total sum misappropriated in the context of the “joint criminal enterprise” between Mr Lahood, Mr Ryan and other players in the affair. I will come back to the significance of that charge shortly. Sequence 5 is another offence of dishonestly obtain financial advantage by deception contrary to the same provision as I earlier identified with the same maximum penalty. This offence, concerned with credit card applications, was committed between 15 September 2016 and 11 September 2018 and is concerned with obtaining a financial advantage measured as $1.391 million and a few odd hundreds.
That sum of $1.391 million is incorporated within the $2.013 million that I earlier identified. Sequence 6 is another offence of dishonestly obtain financial advantage by deception, having the same maximum penalty as sequences 4 and 5. This is an offence committed between the same dates 15 September 2016 and 19 September 2018. It is concerned with applications for personal loans and involves the sum of $496,867 by way of financial advantage and is incorporated, that sum, within the $2,013,000 to which I earlier referred related to sequence 4.
Sequence 7 is another offence of dishonestly obtain financial advantage by deception, the same maximum penalty as the other three sequences to which I have referred. This is an offence committed between the same dates 15 September 2016 and 19 September 2018 and is concerned with cash withdrawals and purchases in the sum of $45,939. There are two offences of knowingly deal with the proceeds of time. These are respectively sequences 8 and 9.
These are offences, in the case of sequence 8 committed between September 2016 and September 2018 and are concerned with $115,000 and covered in circumstances I will identify in a moment, and sequence 9 is concerned with events between 2 August 2018 and 11 September 2018 and 96,000 odd dollars. These offences are contrary to s 193B(2) of the Crimes Act 1900.
I pause for a moment to point out to you Madam Crown that your Crown Sentence Summary did not tell me what the maximum penalties are for those offences under the heading “Maximum Penalties” is merely a repetition of the section. Under which the offences fall. My researches tell me that the maximum penalty for those offences is 15 years imprisonment.
The next offence, sequence 10, is an offence of possession of identification information contrary to s 192K of the Crimes Act 1900 which carries a maximum penalty of seven years imprisonment. This is concerned with possession of identification information between 15 September 2016 and 11 September 2018. Finally, sequence 15 is an offence of participation in a criminal group contrary to s 93T of the Crimes Act 1900 and carries a maximum penalty of five years.
In relation to the offences to which I have referred, there is a further offence of attempt to dishonestly obtain financial advantage by deception, that is sequence 13, that is an offence contrary to s 192E(1)(b) of the Crimes Act 1900 concerned with an attempt to obtain credit cards and that matter is on a Form 1. The principal offence being the sequence 5 offence to which I have referred.
There is an offence described as the sequence 14 offence, again attempt to dishonestly obtain financial advantage by deception, that is, by making application for personal loans which, as with the credit cards, were not accepted by the banks. That offence is a matter on a Form 1 attached to the sequence 6 offence to which I earlier referred. The prisoner also asked me to take into account the sequence 11 offence of dealing with identification information, contrary to s 192J of the Crimes Act 1900 which, if dealt with on indictment, carries a maximum penalty of ten years. This is concerned with fake driver’s licences and this offence is attached to sequence 10, that is, the offence of possession of identification information. Finally sequence 12, knowingly deal with the proceeds of crime contrary to s 193B(2) of the Crimes Act 1900. This is concerned with the prisoner dealing with the sum of $22,000 and that is attached to sequence 8. The prisoner committed the offences with which I am concerned while subject to a number of s 9 bonds (that is s.9 of the Crimes (Sentencing Procedure) Act 1999 hereinafter to be referred to as the Act).
He was placed on those bonds on 7 July 2016, so bearing in mind most of the bonds were for a period of 18 months, the bulk of the offending occurred while subject to that conditional liberty, not all of it I hasten to say, but the particulars I have earlier supplied will identify the relevant dates. The bonds concern the period of time between 7 July 2016 and 6 January 2018. As I said the prisoner has a number of co‑offenders.
His principal co‑offender is Mr Dean Ryan. Mr Ryan is to be sentenced by me, subject to certain material being provided to the Court, on Friday afternoon. I heard the two matters principally together. There was one discrete matter involving Mr Ryan that required me to conclude his matter after Mr Lahood had been remanded in custody.
There are a number of other people identified as “co‑offenders”, including a person by the name of Rachael Jim, who has a connection with this prisoner, a woman called Linda Loriz, who has a connection, as I understand it, with Mr Ryan, and a person by the name of Amy Holden. These people have not yet been dealt with and are awaiting sentence or determination of their cases elsewhere. There is also another gentleman by the name of John Killick, who is still in the system. So there are no other sentences required to be taken into account. But the Crown case alleged against this prisoner and Mr Ryan is that whatever the character of the relevant scheme or schemes in which they are involved, Mr Lahood and Mr Ryan were the principals of those schemes.
There is a very detailed and lengthy Statement of Facts. I do not propose to detail all of the Statement of Facts. Some of the material I identified from the Statement of Facts can be summarised, but there are some introductory paragraphs of the Statement of Facts that put into proper context the range of charges with which I am now concerned. The Statement of Facts which, as I have said, are agreed between the parties and in many respects are common to this prisoner and Mr Ryan, state that Mr Lahood was a “key member of a criminal group” with the co‑offender Dean Ryan, and that he and Mr Ryan, with the assistance of other persons, stole the identities of numerous persons.
The prisoner and Mr Ryan individually and together created bank accounts, opened credit cards and took out loans in other people’s names. The Crown has provided me with an extensive document described as annexure A, which is on the file, setting out the precise particulars in relation to each of those individual transactions.
The statement says that over two years between 15 September 2016 and 11 September 2018, 846 fraudulent accounts were opened at Westpac Bank by the prisoner and his co‑offender, Mr Ryan. The names of numerous victims who had their identities stolen were used. Police have obtained statements from a number of these victims which indicate they had no knowledge of these accounts being opened in their name or being used. The actual loss incurred by the Westpac Bank, the subject of the sequence 4 offence, was $2,013,927.32. Through various means the bank has recovered $253,590.10 of these monies, so there remains quite obviously by reference to those figures, something in the order of about 1.76 million dollars outstanding.
Westpac Bank records indicate a range of activity that can be attributed to Mr Ryan and Mr Lahood. That is the creation of 388 fraudulent customer profiles, 846 total accounts opened, 447 transactional and savings accounts, 335 credit card applications received and 185 credit card applications approved. With regard to the ones approved a total of 1.391 million dollars plus, had been withdrawn by obtaining cash or purchasing items.
Over 150 credit card applications were declined for various reasons, 15 personal loan applications were approved and the funds were disbursed and received to the value of $496,867. With regard to the 185 credit card applications to which I have just referred, that is the subject of the sequence 5 charge which I have identified, and as far as the personal loan applications approved and the funds withdrawn that is the subject of the sequence 6 charge. 51 personal loan applications were rejected.
By reciting those details I am reflecting the way in which all of the charges identified as dishonestly obtain financial advantage by deception or attempt to do so, either as principal offences or as matters on a Form 1, are directly related to one another and in reality subsumed within the sequence 4 charge.
The prisoner has admitted that he personally was responsible for 75 rejected credit card applications, ten rejected personal loan applications, 50 savings account applications, 50 successful credit card applications, five successful loan applications.
The modus operandi of the group is described as being operated in a “sophisticated manner”, with Mr Lahood and Mr Ryan being the main orchestrators. There was an extensive police investigation. Without seeking to embarrass Mr Lahood or unnecessarily praise people, it is to be fairly said a very thorough investigation was carried out with considerable patience. Conversations were intercepted with listening devices and subsequent investigations through the arrest of the prisoner and Mr Ryan have uncovered other material. There was an exhaustive survey of CCTV footage to link each of the gentlemen and other people with particular transactions the subject of charges.
The Crown says that the group, which I take to include not just this prisoner and Mr Ryan but others, would attend addresses around the Sydney metropolitan area and take mail from mailboxes, including names, dates of birth, Medicare card numbers, and these particulars would be used to open accounts in various banks in the names of persons whose mail had been stolen. Several computer programs were found on USB devices in both the possession of Mr Lahood and others, which are capable of generating false driver’s licences, bills and Medicare details. Electronic documents found in the prisoner’s possession were linked to fraudulently obtained cards and loans. There were a number of drivers licences, for example with Mr Ryan’s photograph on them saved on the USB device.
There were a number of false addresses given on applications. Many of these addresses were close to the home addresses of the prisoner, Mr Lahood, who I understood was living in Mascot, and Mr Ryan. False phone numbers were given to banks once a particular account was obtained. Credit card accounts would be opened, less often personal loans were sought. Securing a credit card or a personal loan would be a relatively straightforward process as the bank already had relevant information to grant a line of credit.
Bank records identified that the unsecured credit applications were submitted on line through the bank’s digital portal. All the applications had the correct victim’s name, date of birth, drivers licence and/or Medicare numbers. Cash withdrawals were made upon credit card accounts in allotments of $1,000 from ATMs and transferred to what are called transactional accounts. Debit Mastercards were then used to withdraw cash amounts until the credit funds were exhausted.
Credit applications were connected by a common use of email addresses, mobile numbers, postal addresses and spending activity around the suburb of Mascot in the heart of South Sydney’s home territory in southern Sydney. Several credit and debit cards were mailed to Mascot addresses, with a large portion of withdrawals conducted at the NAB ATM located on O’Riordan Street in Mascot. This ATM was directly across the road from Joseph Lahood and Ms Jim’s residential address.
I just pause for a moment to note, as learned Senior Counsel for Mr Ryan noted in the context of representing his client’s interests, that whilst it was a sophisticated operation, it was not a “perfectly” sophisticated operation. My only comment about that submission is that it is true. But one might have thought that “perfectly sophisticated” criminal activity might not be detected as this was.
In the Statement of Facts there is a great deal of evidence about the prisoner’s involvement, first of all, investigation through Westpac by use or examination of CCTV footage and the identification of particular accounts, mobile phone numbers and the like that ultimately linked activities with the prisoner and Ms Jim. The bank itself undertook examination of its records, particularly CCTV footage from ATM cameras and the like, from October 2017, setting in motion the investigation that led to the prisoner being arrested.
There is a great deal of detail about particulars of personal loans that were advanced and the way in which particular recordings were identified, capturing voices requesting or providing information to the bank.
The facts state that the police reviewed many of the calls and compared voices to listening device information. During the arrest of Mr Lahood and Mr Ryan police located and seized numerous telephone SIM cards. On the SIM cards located were “sticky labels” on which victim’s names were written. A review of the bank applications matches the phone numbers given to the banks, the same numbers on the SIM cards that were located.
There was a listening device and a tracking device placed into a motor vehicle registered and owned by Mr Lahood in the period of time between 7 June 2018 and 26 June 2018. These conversations implicated Mr Lahood, Mr Ryan, Rachael Jim the prisoner’s partner, and other people discussing the modus operandi of the criminal enterprise in which they were involved, places where they would obtain money from ATMs and the like.
It is clear from the random selection of conversations between Mr Lahood and Mr Ryan that they were both equally involved in the criminal activity, they both were fully conscious of what they were doing and both were very conversant with the mechanism by which funds were obtained either by themselves, each other, or other people. Also conversations between the prisoner and his partner Ms Jim implicate both of them in one or other of the modus operandi that I identified. The prisoner and Ms Ryan were subject to what I understand to be visual surveillance on 10 April, 20 April and 27 June 2017, that material linked them to particular aspects of the offending as I have identified.
With regard to obtaining a benefit by deception through withdrawal of cash and the shopping expeditions, examination of CCTV footage recorded between July 2017 and September 2018 captured Mr Ryan and Mr Lahood attending shopping centres, purchasing various items linked to accounts that had been fraudulently opened. Police have gathered over 100 individual CCTV camera video files from various retail outlets to complete their case and there is provided in the Statement of Facts over two pages the dates of various transactions or activities of the prisoner and his partner from January 2018 up until September 2018.
There are a number of car purchases which were made by the prisoner before his arrest, at the time of his arrest he was in the possession of two motor vehicles; one, a BMW purchased on 25 July 2018 from a person called Emily Watkins, and a Mercedes Benz purchased on 3 July from “Australian Gaming Specialists”. These cars were purchased in cash from private vendors. These two previous owners then had apparently their identity stolen and credit cards obtained in their name by the group. The total value of shopping attributable to this prisoner, minus the cars, is $45,939. The total value of the shopping of the criminal group is estimated to $187,346.
Mr Lahood opened a NAB account in June 2017 and cash deposits were made in a structured way in the sum of $115,000 making up one of the knowingly deal with proceeds of crime offences. The prisoner withdrew $80,000 of that money placing the money in a term deposit. Withdrawals and purchases from the account are detailed in the statement of facts. The account at the time of the arrest of the prisoner had $58,000 in cash.

When the prisoner’s residence were searched on 11 September the relevant ‘Strike Force’ found 14 cards, either credit or debit cards, the Statement of Facts does not say, in various names, a particular ledger containing identity information, $22,000 in cash, various goods including items that had been purchased with fraudulent credit cards, a USB device, a memory card in the Nikon camera, two laptops, clothing worn by the prisoner and Ms Jim when they were undertaking shopping expeditions.
Mr Lahood had two laptop devices downloaded by the police. Those laptop devices had 510 readable identification documents, that is, licences, passports, et cetera, and other documents that could not be read, payslips, some handwritten details, and other information.
On 11 September 2018 a warrant was executed at a place called “Custodian Vaults” at 74 Castlereagh Street, Sydney on a safety deposit box with a particular number. The general manager of that business on the execution of the warrant produced an agreement between the prisoner and the company to hire the box and various documents linking the prisoner to that agreement. From the box were seized various items, watches, a USB stick, as I understand it, an Australian passport and cash in the total of $96,350.
The prisoner was also in possession of various items that could be used to make identification documents, including a USB storage device which showed amenable templates able to create fraudulent documents such as driver’s licences, bills, payslips, Medicare applications or Centrelink, medical certificates and the like. I need not go into that detail.
The prisoner was the subject of an electronic interview. He was shown various images of himself and his partner. He admitted to being the person in numerous CCTV images related to fraudulent transactions. There does not appear to have been much further detail provided by the prisoner.
Of course this particular matter provides a challenge for a Judge in measuring the totality of criminality. However I have pointed out some features of the interrelation of charges one to the other which substantially constrains my sentencing options in some respects by regard to the concept of totality of criminality. In relation to that aspect of the matter I note that if one handed up all the maximum penalties with which I am concerned one would be considering a range of maximum penalties well over 80 years imprisonment. I am not suggesting for one moment that I should sentence the prisoner to 80 years imprisonment, we are not in Texas yet, but the truth of the matter is I am very much constrained by the maximum penalty for that principal offence that I have described as the sequence 4 offence. The issue is complicated in a factual sense having regard to the way the matter was pleaded. As I have said earlier, all of the offences had a connection with one another.
I should point out by the way, the comments I am making now take full account of the very helpful submissions of learned counsel for the Crown and the assistance I have been provided by the learned counsel Mr Ainsworth who appeared skilfully for Mr Lahood.
I need not dwell upon the principal of totality as it relates to sentencing, it has been discussed in a range of decisions, most notably the 1998 decision of Mill v R (1988) 166 CLR 59, particularly at [63] and also more recently the decision of Johnson v R (2004) 78 ALJR 616, particularly at [18].
Those judgments approve what had been said by Street CJ in the decision of Holder [1983] 3 NSWLR 245 in essence. There his Honour in probably the most eloquent description of the principle of totality identified it as:

“(A) convenient phrase, descriptive of the significant practical consideration confronting a sentencing judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances.
“In such a sentencing situation the sentencing judge will evaluate in a broad sense the overall criminality involved in all of the offences and having done so will determine what if any downward adjustment is necessary, whether by telescoping or otherwise in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences”.

I should point out that his Honour made those observations before the judgment of the High Court in Pearce v The Queen [1998] 194 CLR 610, particular in the majority’s obiter observations at [45], which in essence say that I am required to fix an appropriate sentence for each offence to ensure transparency in sentencing and then turn my mind to the extent of accumulation and or concurrency. This aspect of the matter has been the subject of further discussion by the Court of Criminal Appeal, particularly referred to in a decision of the Court of Criminal Appeal of MMK (2006) 164 A Crim R 481, particularly at [11] and [15]-[18], the decision of Hammoud (2000) 118 A Crim R 66, at [7], and the summary of principles conveniently drawn up by Hall J in R v XX (2009) 195 A Crim R 38, particularly at [52].
The overlapping of the offences with which I am concerned, however, can be described in a number of ways. The participation in a criminal group, the sequence 15 offence, involves activities reflected in each of the principle charges and the offences identified on the Forms 1. As the particulars in the charges made clear, as well as the agreed statement of facts, the principal offence is, as I said earlier, the sequence 4 offence concerned with the total sum of financial advantage of benefit accrued from the commission of all the principal charges for sentence where a benefit was obtained, that is principally 3, 5, 6, 7, 8, 9 and 10, as well as matters on the Form 1 to which I referred to particularly sequences 11 and 12.
That having been observed, the offences of attempt to dishonestly obtain financial advantage by deception, that is sequence 13 attached to the principal offence in sequence 5 and sequence 14 attached to the principal offence in sequence 6 reflect unsuccessful attempts to gain financial advantage which if successful would have provided the prisoner and his co-accused with greater financial advantage than particularised in sequence 4. Naturally the extent to which the sum that was sought to be obtained in due course if those applications were successful exceeds that particularised in sequence 4 I cannot know.
Likewise, the offence of possession of identification information in sequence 10 relates to the material recovered on the arrest of the prisoner which clearly was available for past and future use. There can be no doubt, and it was not suggested to the contrary, that the criminal conduct of the prisoner was interrupted by his arrest. As I said earlier, I have concluded I should fix an aggregate sentence pursuant to s 53A of the Crimes (Sentencing Procedure) Act 1999 hereinafter to be referred to as the Act and then fix an indicative sentence for each of the offences. Even allowing for a greater maximum penalty potentially for the sequence 8 and sequence 9 offences, those offences are not the most serious offences with which I am concerned. The most serious offence and the offence which in its terms globally covers much of the other offending in the charges is the sequence 4 offence. But the indicative sentence for that offence cannot reflect the totality of the criminality even though the appropriate sentence for that offence is a very significant part of the aggregate sentence which I will impose.
The totality of the criminality is reflected in the various charges making allowance for some differences in the particulars of specific charges, some particularised to have been committed over a period of time, some particularised to have been committed on the date of the arrest of the prisoner. That totality of criminality is very serious indeed. The offending was, as was submitted by the Crown and conceded by the defendant, planned, sophisticated and professional. That is beyond what would be ordinarily expected of offences of the type with which the prisoner has been charged.
Seen in totality, but making allowance that particular offences do relate to a specific date, the offending was over an extended period, almost two years interrupted only by the arrest of the prisoner. In respect of the various financial advantages, I have already noted the $2.013 million figure reflects all of the advantage obtained reflected in the various charges.
I point out that the prisoner was not the sole beneficiary of that particular sum as his counsel reminded me. He was involved in a joint criminal enterprise with Mr Ryan and although they performed from time to time different tasks and in some respects committed different offences, albeit in furtherance of or as a consequence of the joint criminal enterprise, they essentially can be seen as equally liable. Whether they equally shared in the proceeds of their criminal activity, it is impossible for anyone to conclude one way or the other.
The proceeds of the crime reflected in the sequence 4 offence were shared not just with Mr Ryan but other people including the prisoner’s partner, Mr Ryan’s partner and as I understand it others, although I don’t have the facts in relation to anybody else except Mr Ryan. It is clear that Mr Ryan and the prisoner were the architects of the criminal endeavours reflected in the charges relating to both men. It is clear having regard to the detail of all the facts and particulars that the two prisoners, Mr Lahood and Mr Ryan were significant beneficiaries.
The sums of proceeds of crime dealt with by the prisoner are substantial. But, of course, in dealing with the seriousness of the offending in each case in respect of dealing with proceeds of crime, one might expect and can see from time to time much greater sums as contemplated by the legislation. The particulars reflect proceeds of crime obtained by reason of the commission of the sequence 4 offence as it is framed, considered in conjunction with the offences set out in sequences 5, 6 and 7.
Thus, taking all these matters into account by reference to the indicative sentences, I foreshadow that there is a high degree of concurrency between the appropriate sentences or indicative sentences for most of the offences. That is the offences within the ambit of financial advantage by deception and dealing with proceeds of crime but I cannot conclude that all the relevant indicative sentences should be entirely concurrent because the totality of the criminality with which I am concerned extends beyond the ambit of the particularly pleaded offence in sequence 4.
I note at this point for the purposes of sentencing that I regard the criminality of this prisoner on a par with Mr Ryan. I note at this point that their criminal histories are similar. Neither prisoner is considered to be entitled to any particular leniency by reason of the criminal histories although the criminal histories are not aggravating factors. The major distinction, apart from the material presented by each prisoner in respect of his subjective circumstances is that Mr Lahood committed his offences whilst subject to conditional liberty as I earlier identified. On the other hand, the relevant offending of Mr Ryan goes back a longer period of time than Mr Lahood. The fact that the prisoner committed the offences while subject to conditional liberty is relevant as an aggravating factor in sentencing. But having regard to all the matters, bearing in mind their joint responsibility, that particular issue as an aggravating factor only pertinent to Mr Lahood is not a significant matter that requires a “substantial distinction” in the starting point of any sentences for common and related offending before I start giving both the prisoners discounts. I note that Mr Lahood is 11 years older but I also note in fairness to Mr Lahood that he has a considerable break in his offending history as I would understand it while he was gainfully employed in the hairdressing industry. Mr Lahood as I understand it was born in November 1961, Mr Ryan was born in 1972 but I bear in mind Mr Ryan was a mature man and their distinction in age is of no significance. As I said, Mr Lahood was born in November 1961. I have noted some early appearances in 1980 when he would have been about 19 years of age but then there is an 11 year break until a minor assault matter.
Then there is a further 12 year break before he was convicted of supplying on an ongoing basis and sentenced to two years and six months with a non-parole period of 14 months, as the record shows, at the Sydney District Court. Taken into account in relation to that sentencing was an offence of supplying a prohibited drug, goods in custody and a possession of a prohibited drug. I am prepared to accept, as it reveals itself in the psychological report, that the prisoner has had a long and abiding involvement with the use of prohibited drugs in a range of ways. He was convicted of possessing a prohibited weapon in 2009 and placed on a bond for 18 months.
Then from about 2010 onwards there are a series of offences that are reflected in the criminal history in a totally unintelligible way. I referred this to the learned Crown’s attention. I do not blame the learned Crown for the state of the document. But judges would much appreciate if the Crown could go through these criminal histories and put a red line through everything that is excess to requirements.
There is great deal of repetition in this criminal history and as I said, it is largely immaterial. It comprises 26 pages and I divined from working my way through it, there are only about eight or nine pages of the document that actually provide me with information that is relevant.
The reason I say all that is, from about 2010 through till about 2014 or 15 the prisoner was charged with a large number of offences. At the risk of some repetition offences of, using a document to obtain property by deception, breaking and entering, possessing housebreaking implements, breaking and entering with intent, stealing property from a dwelling house, dishonestly obtain financial advantage by deception on a number of occasions, goods in custody reasonably suspected of being stolen, making false document to obtain financial advantage, possesses identity information to commit indictable offence.
All of these offences apparently at various times wound up before the Drug Court, where the Court, as I best read the record, in February 2015 fixed what could be described as an aggregate sentence of three years, three months, with various indicative sentences presented to me in a totally unintelligible form.
From that I understand that the prisoner undertook the Drug Court program and ultimately - and most relevantly for my concerns - on 7 July 2016 was placed on 18 month good behaviour bonds in respect of offences of goods in custody, three matters of dealing with property suspected to be proceeds of crime, nine matters of dishonestly obtain property by deception, four matters of dishonestly obtain financial advantage by deception, an offence of possess equipment to make identification information, making a false document to obtain financial advantage, of which there were two counts, possess false document to obtain financial advantage of which there were two counts, and making and/or possessing equipment to make false documentation of which there was one count.
That may not even be the total picture, but that is the best I can divine from the criminal history. I have taken that into account in terms of the breach of conditional liberty affecting probably as best calculated 15 months of the relevant offending behaviour.
I have noted of course many of those offences, as they are briefly described without any facts provided to me, are of very similar character to the offences with which I am concerned but clearly not as serious as these matters. The prisoner has other findings of guilt. At the Sydney District Court on 22 September 2011 he was convicted of aggravated breaking and entering and commit serious indictable offence in company and sentenced to one year, seven months imprisonment, which was then suspended pursuant to what was then s 12 of the Act. He has other findings of guilt in relation to the misuse of motor vehicles and I have noted those matters as not particularly significant.
The sentencing assessment report from Community Corrections provides some background information; the prisoner’s connection with his adult daughter in circumstances I will come to in a moment and that he has not been able to associate with his partner since his arrest. He was unemployed at the time of his arrest. He does not appear to have had much employment during the time of the offending, apart from some work as a barber. It reflects upon his career in the hairdressing industry, to which I have referred.
The prisoner is regarded as a trusted inmate, a matter emphasised by his counsel, and I am prepared to accept from the information available that the prisoner presents no institutional issues. He is industrious within the ambit of what opportunities he has in custody.
He described his previous offending as motivated by his drug use and the need to support his ongoing “habit” and lifestyle. He reflects upon his significant drug use commencing in about 2003, self-medication for pain symptoms relating to medical conditions which I need not put on the record, the surgeries he received in 2011 and 2014. There is some medical evidence showing a complaint of symptoms relating back to the surgery and other related matters right up until his arrest by attendance upon a private medical practitioner. The prisoner noted the use of methamphetamine and the positive effect it had upon feelings of anxiety. In relation to his criminal history it does coincide with what he claims to be his increased use of drugs after 2003.
He is said by the Community Corrections Service to have been positive in his response to previous periods of supervision and intervention, which I have taken into account his favour. But I also note that despite the fact he completed the Drug Court program, by the orders made in July 2016 that granted him good behaviour bonds, the offending with which I am concerned commenced within three months of the completion of that program. That goes to show that the prisoner has difficulties maintaining a pro-social lifestyle when away from supervision.
The history of his previous supervision has been noted. When subject to good behaviour bonds in 2012, he presented with issues relating to his use of alcohol and drug usage, as well as treatment for anxiety. He was initially compliant with an intensive correction order in 2013 but this was, as the criminal history makes clear, interrupted by further offending and finally withdrawing contact with the Intensive Corrections Service, which I have also taken into account, but he did successfully complete the Drug Court program afterwards.
He is assessed by the actuarial instrument used by Corrective Services to be at medium risk of re-offending and there is a supervision plan in place should I make a non-custodial order. But there could be no prospect of that.
In respect of the material presented on behalf of the prisoner, I bear in mind that the prisoner has not given evidence and that the psychological report prepared in relation to him does not seem to me to be controversial. It sets out details of his family background, his siblings and the like.
My understanding is that his mother is still alive, his father had died some years before. He has, as I mentioned earlier, a child aged 27 and she has been through some traumatic experiences reflected in a psychologist report from Mr Watson-Munro which I read. Part of her traumatic circumstances relate to tragedy in relation to her partner some months before the prisoner was arrested.

It was agreed by the prisoner’s counsel, and it is self-event from the material tendered in relation to her and the prisoner’s relationship with his daughter, that her circumstances do not present in any character the exceptional circumstances that might need to be taken into account when reflecting upon the interests of third parties.
He has been in a relationship with his “co-offender”, Ms Jim, for some 10 years. I have noted his involvement in the hairdressing industry. He has had other employment before that including as an apprentice plumber.
The involvement of the prisoner in the use of drugs I have already reflected upon and his involvement with the Drug Court. His medical history reflects upon the surgeries that I have referred to and he continues to have pain from the particular condition that he has been treated for, but I have not been provided with any evidence to show that he is not able to get any proper treatment from Justice Health.
The psychologist undertook some form of psychological assessment of the prisoner. He is noted to potentially have an early “Conduct Disorder”. He was assessed for symptoms of ADHD and whilst the testing revealed that he did not have a sufficient “score” to be assessed as having the condition of ADHD, or having it at an earlier time, it was noted that the score recorded by the psychologist was close to the threshold but the psychologist frankly conceded that in order to assess whether the prisoner has or ever had ADHD in childhood there would need to be a proper diagnosis by a psychiatrist which the psychologist is not qualified to undertake. The psychologist reflects there was a possible presence of that and the significance of that is that with that condition, the prisoner might be more susceptible to the abuse of drugs.
With regard to the other assessments of the prisoner he was thought to be suffering mild anxiety symptoms in the period of time before testing consistent with his circumstances. There is no evidence of post-traumatic disorder. He did not meet the criteria for that under DSM5 although he had some traumatic experiences of a troubled relationship with his father and his father’s conduct.
He is assessed as to the risk factors in further offending and it is thought that his anti-social personality problems, conduct problems, criminal history, alcohol/drug abuse and anger management issues are significant when tested. Thus, the conclusion was that he falls within the “high/moderate range for risk of recidivism”.
In summary, the psychologist concludes in the context of the criminal history of the prisoner and his history of substance abuse that the prisoner is capable of responding well to structure, having previously completed the Drug Court. The psychologist incorrectly states that he completed the ICO. It was noted that his use of drugs is usually concerned with stimulant substances with the exception of cannabis use and that he should seek psychiatric assessment in relation to the possible presence of any ADHD.
I have had regard to various medical notes that were provided by counsel for the prisoner. I was not taken to any particular matter but I have read those to the best that I understand them and I am prepared to accept that there are some continuing ongoing medical conditions that affect the prisoner’s circumstances.
The learned Crown Prosecutor’s submissions I have earlier referred to. I dealt with issues relating to the objective seriousness of the offending, the aggravating factors that arise under s 21A (2), particularly the aggravating factor of being subject to conditional liberty at least for part of the time that a number of the offences were committed and of course offences committed in September 2018 or between August of 2018 and September of 2018 were outside the time which he was supposed to be subject to a good behaviour bond.
Obviously, as I have said earlier, the sequence 4 offence is the most serious offence. It is a very serious offence of its type. It is not the most serious offence of its type and the prisoner is not the worst offender. I bear in mind in relation to each of the offences the relevance of the consideration of the maximum penalty is a guide to an assessment of the seriousness of the individual offending. Other offences of dishonestly obtain financial advantage by deception are less serious, incorporated within the most serious conduct in any event, and the distinctions between the respective offences are reflected in the indicative sentences by regard to the maximum penalties.
I should also say, as I earlier made clear, that notwithstanding the fact that sequences 9 and 8 are offences that carry the greater maximum penalty of 15 years they are not the most serious offences with which I am concerned. I have taken into account in each offence where there is a particular sum particularised, the amount of advantage that has been obtained and the length of time over which the offences were committed. The motive for the crime in part may have been to obtain drugs, but clearly it was to support lifestyle. The purchase of items for personal comfort and the like reflect the primary purpose of the offending.
The degree of sophistication and planning I have already dwelt upon and that is noted in some detail in the Crown’s submissions. I cannot accept, nor would anyone reasonably accept, that any of the offences occupy a “breach of trust” as those words are understood. I appreciate that attacks upon the banking system do attack the public confidence and there are consequences for other people who may genuinely be seeking credit cards or credit advances in that they are confronted with more stringent tests to ensure they are genuine customers. But the primary victim, not that I am diminishing the seriousness of the offending, was not in the end an individual whose identity was stolen, although this is a significant matter, it was the financial institution providing the funds.
The Crown correctly identifies the need to have regard to s 3A of the Crimes (Sentencing Procedure) Act. In that regard there are purposes of sentencing to be provided. The purposes of sentencing are many. They are all the purposes of sentencing under s 3A of the Act: Adequate punishment, general and personal deterrence, protection of the community from the prisoner to the extent that the offences impinge upon the welfare of the community. Of course I appreciate that particular purpose of sentencing has much greater salience in the context of crimes of personal violence, sexual assault and the like. The promotion of the rehabilitation of the prisoner is still a relevant matter, making him accountable for his actions, denouncing his conduct and recognising the harm or loss to the victim and the community.
The s 5 “threshold” has been passed. I have dealt with s 21A (2) to substantial “aggravating factors” to the circumstances of the offending.
With regard to other matters raised by the Crown I have noted what the Crown has put about the issue of the risk of reoffending and that is a real risk, particularly if the prisoner returns to old associations and the use of drugs.
With regard to matters identified by the Crown in its submissions that might otherwise be considered under s 21A (3) of the Act there are few “mitigating factors”. I cannot conclude that the prisoner has good prospects of rehabilitation. His counsel identified the prisoner as being “at the crossroads”. I do not mean this in any way disrespectfully to Mr Lahood but he is some distance from the “crossroads”. Although I do accept, as his counsel pointed out to me and as I earlier noted, the prisoner in custody has been a model prisoner. I have taken that matter into account and it is a matter that in part supports the conclusion I have reached that there are ‘special circumstances’ under s 44 of the Act. The pleas of guilty are a mitigating factor. The prisoner receives a discrete discount for that. There have been expressions of remorse but I could not conclude on balance that remorse has been established pursuant to 21A (3) (i).
I could not conclude, I regret to say, the prisoner is unlikely to re-offend but I again take into account the positive response of the prisoner to previous supervision in some respects and that is a matter that is relevant to the s 44 considerations.
I have determined that there are special circumstances. In the context of fixing an aggregate sentence there is an element of partial accumulation in reality by reference to the indicative sentences but I believe the prisoner does need an extended time for supervision to adjust to community living and to receive some assistance in relation to matters that have contributed to his offending, particularly his associations and his drug use.
With regard to the Crown’s ultimate submission, it is clear that a substantial sentence of imprisonment must be imposed. With regard to his counsel’s submissions, of course, many of them I have already dealt with. I noted the concessions made in submission about the character of the offending. I have noted that the prisoner was not the only person to benefit from these crimes and the positive approach the prisoner has taken to being custody. I have noted the circumstances of his daughter to whom he would wish to return and live with on his release. I am sympathetic, of course, to her personal circumstances but they are not exceptional circumstances. It does not appear to me to be a situation where she is dependent upon him.
The detail of the submissions from Mr Ainsworth in relation to the offending reflected upon what I have already concluded about the significance of the sequence 4 offence. From the psychological report, there are no matters that require consideration as discussed, for example by the Court of Criminal Appeal in the decision of De La Rosa [2010] NSWCCA 194 particularly at [177]-[178]. There is no either diagnosed or relevant condition identified that might give less weight to general deterrence or be pertinent to the assessment of the prisoner’s moral culpability and neither was there any submission made.
In considering the Form 1 matters, I take them into account as I have identified in the context of the totality issue but I also take them into account in accordance with the guideline judgment of 2002 being Attorney General’s Application No 1 of 2002 (2002) 56 NSWLR 147 and the observations of the learned Chief Justice particularly at [18]-[44], particularly the observations at [18], [23], [24], [39] and elsewhere. They provide some context to understanding the offending. They do not significantly alter the character of the sentence required for each of the principal offences, bearing in mind there is one matter on each Form 1 and the relationship of the matters on the Form 1 with the principal offending to which they are concerned, otherwise I believe I have dealt with each of the matters that were raised with me by counsel for the Crown and the defence.
Thus as I have said, it is an appropriate matter for an aggregate sentence pursuant to s 53A of the Act. In this regard an aggregate sentence must be “just and appropriate” to the totality of the offending behaviour and in that regard decisions reflecting upon aggregate sentences very much reflect upon those principles of ‘totality’ such as Street CJ’s judgment in Holder and also there are the observations of Howie J in Cahyadi [2007] NSWCCA 1 particularly at [27] that Hall J incorporated into his judgment of XX, to which I made reference.
Mr Lahood, now what I will do is - you do not need to stand up of course. It would be silly for you to stand up in a room some distance away. I will just make the formal orders now. I
In respect of all charges set out below taking into account matters on Forms 1 in respect of sequences 5, 6, 8 and 10, you are convicted. Pursuant to s 53A Crimes (Sentencing Procedure) Act1999, I sentence you to an aggregate sentence comprising of a non-parole period of four years six months’ imprisonment to commence on 12 September 2018 and to expire on 11 March 2023 with a balance of sentence of two years six months’ imprisonment to expire on 11 September 2025.
The indicative sentences of imprisonment I impose are as follows. With regard to sequence 3, possess equipment to make identification document, I sentence you to an indicative sentence of 18 months’ imprisonment. In relation to sequence 4, dishonestly obtain financial advantage by deception, five years eight months’ imprisonment. With regard to sequence 5, dishonestly obtain financial advantage by deception taking into account sequence 13, four years six months’ imprisonment. With regard to sequence 6, dishonestly obtain financial advantage by deception taking into account the sequence 14 offence, three years imprisonment. With regard to sequence 7, dishonestly obtain financial advantage by deception, two years three months’ imprisonment. With regard to sequence 8, knowingly deal with proceeds of crime taking into account sequence 12, three years imprisonment. With regard to sequence 9, knowingly deal with proceeds of crime, two years three months’ imprisonment. In relation to sequence 10, possession of identification information, taking into account sequence 11, three years imprisonment. With regard to sequence 15, participation in a criminal group, two years three months’ imprisonment.
The total sentence is seven years imprisonment commencing on 12 September 2018 and expiring on 11 September 2025 with a non-parole period of four years six months’ imprisonment expiring on 11 April 2023.
I will give a copy of that order to your lawyer today. Do you understand?
OFFENDER: Yes - Honour.
HIS HONOUR: So that full details will be out but what I have sentenced you to in total, bearing in mind the law requires me to go through a lot of detail in actually announcing the sentence, is a total sentence of seven years imprisonment with a non-parole period of four years six months imprisonment, all those sentences commencing on 12 September, 2018. Do you understand that?
OFFENDER: Thank you your Honour.
HIS HONOUR: You’ll be eligible for parole on 11 March 2023. Yes Madam Crown any other matters from you in relation to Mr Lahood?
SAWAGID: Nothing arising. There is the matter of confiscation proceedings your Honour, actually.
HIS HONOUR: Well right. So what do I do? I don’t go out and type up orders. Have you got some orders there for me?
SAWAGID: No your Honour the orders haven’t been drafted as yet.
HIS HONOUR: Well I’ll grant you leave, subject to serving them on your opponent, to bring them to me when it’s an appropriate time.
SAWAGID: Thank you your Honour yes. The Crown would be seeking leave to re-mention that at a later time?
HIS HONOUR: Well you contact my associate. I’m away for three weeks. I’ll be up at Grafton for three weeks from next Monday so it will have to be some time in September I’d imagine.
SAWAGID: That’s fine your Honour.
HIS HONOUR: Unless I do it on Friday but I’ll leave that for you to sort that out. Madam Crown do you understand the orders I’ve made?
SPEAKER: Yes your Honour.
HIS HONOUR: And we’ll give you a copy of those orders.
SPEAKER: Yes your Honour.
HIS HONOUR: You’ve got them there have you?
SPEAKER: I’ve received one thank you your Honour.
HIS HONOUR: Right thank you. Now Mr Lahood that completes your involvement in the proceedings. Your solicitor’s here. She has a copy of the orders. She can discuss those matters with you. The order, of course, is subject to your rights or appeal and the rights of the Crown to appeal. You understand that. I’m merely a District Court Judge, I’m subject to review which is perfectly proper. Do you understand that?
OFFENDER: Yes your Honour.
AUDIO VISUAL LINK CONCLUDED AT 3.11PM

**********

Decision last updated: 08 November 2019

Medium Neutral Citation:	R v Lahood [2019] NSWDC 646
Hearing dates:	5 August 2019
Decision date:	07 August 2019
Jurisdiction:	Criminal
Before:	Norrish QC DCJ
Decision:	Aggregate sentence 7 years imprisonment, non-parole period 4 years 6 months
Catchwords:	CRIME – Sentence – dishonestly obtain financial advantage by deception – possess equipment to make identification documents – possess identification information - joint criminal enterprise – key member of criminal group – numerous stolen identities – created bank accounts, credit card accounts and personal loans in other people’s names – on line applications over 2 year period – over $2 million in total - sophisticated operation – stole mail from mail boxes to create identities – possessed computer program capable of generating false documents – passports, bills, driver’s licences – measuring totality of criminality – overlapping offences – previous offending with similar offences – support drug habit and lifestyle – drugs helped with pain relief and anxiety – successful completion of Drug Court program – current offending commenced 3 months after completion of program – possible “Conduct Disorder” or ADHD – aggravating factor – on conditional liberty – pleas of guilty – expressions of remorse – special circumstances – medium to high risk of re-offending.
Legislation Cited:	Crimes Act 1900; s 93T; s 192E(1)(b); s 192J; s 192K; s 192L; s 193B(2) Crimes (Sentencing Procedure) Act 1999; s.9; s 53A
Cases Cited:	Johnson v R (2004) 78 ALJR 616, Mill v R (1988) 166 CLR 59 Pearce v R [1998] 194 CLR 610 R v Hammoud (2000) 118 A Crim R 66 R v Holder [1983] 3 NSWLR 245 R v MMK (2006) 164 A Crim R 481 R v XX (2009) 195 A Crim R 38
Category:	Sentence
Parties:	Regina (Crown) Joseph Lahood (offender)
Representation:	Counsel: Mr Ainsworth (offender) Solicitors: Ms Sawagid DPP NSW (Crown) Ms Mate (offender)
File Number(s):	2018/00279384
Publication restriction:	No