R v McGann

[2009] NSWDC 379

CITATION:	R v MCGANN [2009] NSWDC 379
HEARING DATE(S):	11/12/2009,18/12/2009
JUDGMENT DATE:	18 December 2009
JUDGMENT OF:	Williams DCJ
DECISION:	He is convicted. In regard to the 178B(a) offence of 14 May 2008, he is sentenced to a minimum term of two years and an additional term of one year to date from 11 March 2009. In regard to the 178B(a) offence of 15 May, together with the Form 1 matters, he is sentenced to a minimum term of two years and an additional term of one year to date from 11 September 2009, which means he is eligible for release on parole on 10 September 2011. The total term will expire on 11 September 2012. In regard to the s 193D(1) offence, he is sentenced to a fixed term of eighteen months imprisonment to date from 11 September 2009, and, in regard to the Commonwealth Criminal Code 145.1(5) offence, plus the form 16B(a) matters, he is sentenced to a fixed term of twelve months imprisonment, again to date from 11 September 2009.
CATCHWORDS:	SENTENCE-identity theft offences-serving current sentence for unrelated matter-young offender-substantial sum-not the principal-other co-offenders.
LEGISLATION CITED:	Crimes Act 1914 Criminal Code Act 1995 Crimes (Sentencing Procedure) Act 1999 (NSW)
PARTIES:	Regina Daniel James MCGANN
FILE NUMBER(S):	2009/00158345
SOLICITORS:	Mr Mehta (Crown) Mr Kozanecki (Offender)

1. HIS HONOUR: Mr McGann has pleaded guilty to one offence of dealing with property intending it to be an instrument of crime, contrary to s193D(1) of the Crimes Act, which carries a maximum penalty of fifteen years imprisonment, use a forged Commonwealth document contrary to para 145.1(5) of the Commonwealth Criminal Code, which carries a maximum penalty of ten years imprisonment, and two obtain benefit by deceptions contrary to s 178B(a)(1) of the Crimes Act, each of which carries a maximum penalty of five years imprisonment.

2. There is also a Form 1 in respect of the State offences, with three counts of using a false instrument with intent, and a form 16B(a) in respect of the Commonwealth offence with two counts of opening an account with a cash dealer.

3. Mr McGann is aged twenty-four. He has been in custody since 11 October 2008, serving a sentence of fifteen months with a twelve month non-parole period for an offence of reckless wounding, although I note that such a sentence break-up is probably contrary to the Sentencing Act. The non-parole period expired on 10 October 2009, but he did not seek bail, and has thus been in custody since that time solely in relation to the current offences.

4. The current offending occurred in May 2008 at a time when he was subject to a s 9 bond for assault and contravening an AVO.

5. There is an agreed statement of facts. As well, the Crown has tendered a great deal of additional material relative to co-offenders, some of whom have already been dealt with in the Local Court. Mr Adam received a twelve month sentence with a nine month non-parole period; Mr Hong received a nine month sentence with a six month non-parole period to be served by way of home detention. Two others are listed for sentence in the District Court in February, namely Filmore and Gokool. The remaining offender, Mr Chen, is still being processed in the Local Court.

6. These offences came to light through the investigations of a joint Commonwealth New South Wales Police Task Force investigating identity theft and fraud. The investigation uncovered a substantial fraud which involved the stealing of cheques, the manufacture of false identification documentation, the opening of bank accounts with that information, the depositing of cheques into those accounts, and the subsequent withdrawal of funds in the pretence that the withdrawal was a genuine withdrawal by the person to whom the cheque was made out.

7. Mr McGann was a runner for the syndicate. He did not initiate the overall plan, but played the necessary role of going into banks with counterfeit documents, opening and then manipulating accounts using the stolen cheques. The type of identity documents used included drivers’ licences, Medicare cards and Visa cards of a number of different banks.

8. Mr McGann’s participation in these offences resulted in a loss of $211,500. Mr McGann did not give evidence. However, I have available a pre-sentence report and a psychologist’s report. Unfortunately, aspects of Mr McGann’s history were not substantiated when the parole officer spoke to his mother, so how much of that is reliable is questionable. His mother, I note, suffers from bipolar disorder, a fact supported by the evidence. She has been hospitalised on a number of occasions and recently experienced a manic episode resulting in a three week psychiatric admission, probably as a result of Mr McGann’s incarceration.

9. He is the eldest of two children. His parents separated when he was four, and his father died when he was aged nine. Apparently his younger brother had behavioural problems, which also affected his mother’s mental health. Mr McGann left school in year 11 and has had a variety of jobs since then, the longest being with a stationery firm for two years, after which he was apparently made redundant. At a relevantly late age he began binge-drinking and then more consistent drinking, resulting in a prescription for Naltraxone by a general practitioner.

10. Since being in custody he has been participating in AA programs and tried to enter the self-management and training program, but was declined due to a pending release date. His reason for this offending, namely, to provide surgery and private medical care for his mother, was not supported by her. As the pre-sentence report said, he appears to be somewhat economical with the truth, although he was said to have realistic and achievable goals and is focused with regard to education and employment prospects. He was said to require a medium level of supervision. The psychologist was at some disadvantage in regard to Mr McGann’s history and motivations. He was not diagnosed with any overt psychiatric or psychological maladjustment. He was assessed as being at a low risk of recidivism. His alcohol abuse was noted, and seems to have been a catalyst for the violent offending which lead to his recent sentence, but did not appear to have been a factor in the offences before me. It was felt he would respond to a period of conditional supervision.

11. As I said, Mr McGann’s participation in these offences caused a loss of $211,500, a substantial sum of money. He was part of a sophisticated criminal undertaking designed to take advantage of technology in the production of apparently legitimate documentation to initially fool bank staff into thinking they were processing a genuine transaction. All of these offences arose out of the one criminal activity involving the theft of a cheque, the creation of an account using false material and the obtaining of a benefit on two occasions by deception, namely 14 and 15 May 2008.

12. The most serious charge, at least as far as penalty is concerned, relates to dealing with property intending it to become, and it becoming, an instrument of crime, which in this case was a cheque for $229,227.90, although the offence is essentially one of theft and obtaining a benefit by deception. However, the maximum penalty is fifteen years imprisonment, although I would have thought that such a penalty was reserved for a much different type of offending than is revealed here.

13. The next most serious offence, again in regard to penalty, relates to the use of a forged Medicare card, being a Commonwealth document. The least serious offending, again at least as far as penalty is concerned, relates to the actual obtaining of the proceeds of the cheque. However, that, to my mind, is the most serious aspect of these offences and is the cause of the resultant loss.

14. His co-accused, Mr Adam, was involved in three similar transactions involving about $13,000. Mr Adam had no prior record.

15. Mr Hong had a number of forged identification documents in his possession. His task was apparently to drive the co-offender Filmore to a number of locations to carry out fraudulent banking transactions. Filmore was likewise a runner. She withdrew a total sum of about $93,000 using seven banks and accounts and was involved in apparently setting up many others. She had one prior similar offence for which she was fined. Mr Gokool organised others and committed similar offences himself. He gained access to about $175,000 over the many transactions conducted by himself. He has no prior record.

16. This type of fraudulent activity is difficult to detect and is occurring with greater and greater frequency, particularly as criminals seem to have ready access to the technical equipment that enables false documents, identifications, credit cards, et cetera, to be made that are impossible to recognise without going into the details of each document with a fine tooth comb. Of course, if that were done, it would bring commerce to a grinding halt. There therefore needs to be a significant element of general deterrence for such offending. It is sometimes argued that these are victimless crimes, but the victims are the customers of the various institutions who are defrauded and who have the costs involved passed on to them by way of higher premiums and interest rates.

17. Whilst in some respects there is a measure of parity between Mr Adams and that of Mr McGann, the consequences of his offending is substantially more serious. I bear in mind that Mr McGann has been in custody since 11 October 2008, serving a sentence for a completely unrelated and completely different offence. Nonetheless, I have to have regard to the question of totality. In the circumstances of the case, I do not think it appropriate or necessary to accumulate each sentence to be imposed. I note that the withdrawals of 14 and 15 May 2008 were close together, presumably to avoid the risk of detection, and I bear that in mind in setting the sentence. Because some of these sentences are accumulated, I have been able to find special circumstances. I have taken into account, where relevant, if not already mentioned, the required factors in s 21 of the Crimes (Sentencing Procedure) Act, and s 16A of the Commonwealth Crimes Act.

18. The orders that I make are that he is convicted. In regard to the 178B(a) offence of 14 May 2008, he is sentenced to a minimum term of two years and an additional term of one year to date from 11 March 2009. In regard to the 178B(a) offence of 15 May, together with the Form 1 matters, he is sentenced to a minimum term of two years and an additional term of one year to date from 11 September 2009, which means he is eligible for release on parole on 10 September 2011. The total term will expire on 11 September 2012. In regard to the s 193D(1) offence, he is sentenced to a fixed term of eighteen months imprisonment to date from 11 September 2009, and, in regard to the Commonwealth Criminal Code 145.1(5) offence, plus the form 16B(a) matters, he is sentenced to a fixed term of twelve months imprisonment, again to date from 11 September 2009.

19. What that means effectively, Mr McGann, is that you have been sentenced to a minimum term of two years imprisonment to date from 11 September 2009. That means you are eligible for release on parole on 10 September 2011, and the balance of the term will expire on 11 September 2012. The sentences for all the other matters are taken into account within that time frame.

MEHTA: If I could just ask your Honour to have the remarks on sentence taken out and placed on the court file, because they will be required for the co-offenders who will be dealt with further down--

HIS HONOUR: Yes, I will direct that the remarks on sentence be taken out and placed on the file.

MEHTA: Thank you, your Honour..