R v Tongue

[2023] NSWDC 175

District Court

New South Wales

Medium Neutral Citation:

R v Tongue [2023] NSWDC 175

Hearing dates:

16 March 2023

Date of orders:

03 May 2023

Decision date:

03 May 2023

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

1        Brenton Michael Tongue is convicted.

2 For the Federal offence, taking into account the matters on the s 16BA schedule and the appropriate discount, I impose a term of imprisonment of 15 months to date from 4 September 2022.

3 Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 3 May 2023, having served 8 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 18 months.

4        If the offender fails to comply with the recognisance release order, further action against him may be taken. This may require him to return to court.

5        For the State offences, I impose an aggregate term of imprisonment for the State offences of 2 years and 9 months.

6 Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (3 May 2023) and expire on 2 February 2026.

Catchwords:

CRIME – Fraud – make counterfeit money – deal with identification information

CRIME — Drug offences — Supply prohibited drug

Legislation Cited:

Crimes Act 1900 (NSW)

Crimes Act 1914 (Cth)

Crimes (Currency) Act 1981 (Cth)

Crimes (Sentencing Procedure) Act 1999

Drugs Misuse and Trafficking Act 1985 (NSW)

Cases Cited:

Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546

Bugmy v The Queen (1990) 169 CLR 525

Deakin v The Queen (1984) 58 ALJR 367

Hili v The Queen (2010) 242 CLR 520

Johnson v The Queen (2004) 78 ALJR 616

Mandranis v R [2021] NSWCCA 97

Power v The Queen (1974) 131 CLR 623

R v El Karhani (1990) 21 NSWLR 370

R v Lamella [2014] NSWCCA 122

R v Olbrich (1999) 199 CLR 270

R v Zamagias [2002] NSWCA 17

Category:

Sentence

Parties:

Rex (Crown)
Brenton Michael Tongue (Offender)

Representation:

Counsel:
L Cavell (Crown)
M Kiriakos (Offender)

Solicitors:
Commonwealth Director of Public Prosecutions (Crown)
Carmody Lawyers (Offender)

File Number(s):

2021/194794

Publication restriction:

None

JUDGMENT

Introduction

1. Brenton Michael Tongue (the offender) appears for sentence after pleading guilty in the Local Court to the following offences:

Sequence	Offence	Maximum penalty
2	Make counterfeit money, contrary to s 6, Crimes (Currency) Act 1981 (Cth).	14 years imprisonment and/or fine of $186,480
10	Deal with identification information with the intention to commit, or facilitate the commission of, an indictable offence, namely fraud, contrary to s 192J, Crimes Act 1900 (NSW).	10 years imprisonment and/or fine of $110,000
7 (s 166)	Supply a prohibited drug contrary to ss 25(1), Drugs Misuse and Trafficking Act 1985 (NSW).	2 years imprisonment and/or a fine of $11,000

2. In passing sentence for sequence 2, the offender asks the Court to take into account the following offences, pursuant to s 16BA of the Crimes Act 1914 (Cth):

Sequence	Offence	Maximum penalty
1	Possess counterfeit money, contrary to s 9(1) Crimes (Currency) Act 1981 (Cth).	10 years imprisonment and/or fine of $133,200
3	Possess counterfeiting machine/tool/die, contrary to s 11(1)(c) Crimes (Currency) Act 1981 (Cth).	10 years imprisonment and/or fine of $133,200
4	Possess counterfeiting materials contrary to s 11(2)(b) Crimes (Currency) Act 1981 (Cth).	10 years imprisonment and/or fine of $133,200

3. In passing sentence for sequence 10, the offender asks the Court to take into account the following offence, on a Form 1.

Sequence	Offence	Maximum penalty
5	Possess equipment and material to make a document containing identification information intending the document to be used to commit an indictable offence contrary to s 192L, Crimes Act 1900 (NSW).	3 years imprisonment

Approach to Sentencing

4. To the extent that I make findings of fact adverse to the offender, I am satisfied of that fact beyond reasonable doubt. To the extent that I make findings of fact favourable to the offender, I am satisfied of that fact on the balance of probabilities: R v Olbrich (1999) 199 CLR 270 at [27] (Gleeson CJ, Gaudron, Hayne and Callinan JJ).

5. I have taken the s 16BA schedule offences and the Form 1 offence into account in accordance with the principles in the guideline judgment, which have been held to apply to each procedure: Attorney General’s Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546 and R v Lamella [2014] NSWCCA 122 at [48].

Federal offences

6. I must have regard to Part IB Crimes Act 1914 (Cth) (the Act) in passing sentence and in particular the matters provided for in section 16A of that Act.

7. A court determining a sentence in respect of any person for a Federal offence must impose a sentence that is of a severity appropriate in all the circumstances: section 16A(1) of the Act. The Court must take into account the matters listed in section 16A(2) that are relevant and known to the Court: R v El Karhani (1990) 21 NSWLR 370. The list of factors in section 16A(2) of the Act is not exhaustive and common law principles apply: Johnson v The Queen (2004) 78 ALJR 616 at [15].

8. The offender entered pleas of guilty to the Commonwealth offences in the Local Court. The offender’s pleas of guilty have saved the need for witnesses to be called at trial and there is significant utilitarian value in the pleas of guilty. The appropriate discount is 25%.

9. For a Federal offence the non-parole period is the minimum period that justice requires the offender to serve in custody, fixed by reference to s 16A(1), the relevant matters in s 16A(2) and by application of the principles set out by the High Court in Power v The Queen (1974) 131 CLR 623, Deakin v The Queen (1984) 58 ALJR 367 and Bugmy v The Queen (1990) 169 CLR 525: see Hili v The Queen (2010) 242 CLR 520 at [40]-[44] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ).

State offences

10. I have taken into account the purposes of sentencing set out in s 3A Crimes (Sentencing Procedure) Act 1999 and had regard to the matters set out in s 21A of the Act.

11. The offender entered a plea of guilty in the Local Court and is entitled to a 25% discount on sentence: s 25D(2)(a) Crimes (Sentencing Procedure) Act 1999.

Facts

12. The parties presented an Agreed Statement of Facts. I have taken the entirety of the document into account in coming to an appropriate sentence. What follows is a brief summary of the facts relevant to the offender to permit an understanding of the sentence imposed.

Federal offences

13. In September 2020, police commenced investigations into the offender after receiving reports of suspicious activity occurring inside a garage which was rented by the offender.

14. On 2 December 2020, the offender entered into a 12-month lease for a storage facility in Thornleigh (Storage Unit), on behalf of a business Dune Digital Phosphorescent Fine Art Printing (Dune). The offender told the landlord that he was going to use the Storage Unit to undertake printing work.

15. The offender purchased an LEJ 640 Roland UV 64-inch ColorSign Maker Printer (the Printer) in October 2017. On 17 December 2020, the offender and two removalists relocated the Printer to the Storage Unit.

16. Between 1 January 2021 and 17 February 2021, the offender attended the Storage Unit 45 times, often late at night. On 18 February 2021, police installed cameras and listening devices in the Storage Unit.

17. On 25 February 2021, the offender arrived at the Storage Unit at 6.02am with his partner, Danielle Smith. The offender was recorded saying to his partner, “Think of all the things you want…[indecipherable]. That’s why we are going to make bulk cash; I’m talking cash money, through the roof”. At 7.40am, the offender removed two sheets of polymer from the Printer, one of which had ink printed on it.

18. On 27 February 2021, the offender attended the Storage Unit with another male. The other male asked the offender whether it was harder to print Australian currency than currencies that use paper. The offender replied, “Probably, but like [indecipherable] the paper is actually pretty hard to get…Like, this stuff – it was pretty hard to get this plastic”. The other male asked the offender, “Tell me where to get that shit from so I can get [indecipherable]”. The offender told the other man that he had bought the polymer they were using five years ago. He told the other man that he bought 20 “rolls” at the time and was put on a watch list as a result.

19. On 29 April 2021, the offender attended the Storage Unit at 3.01pm with Jay McRea. Another male arrived shortly after this. At 3.55pm, the offender connected his laptop to the Printer and proceeded to operate the Printer. The offender and the other male had the following exchange:

• Male:         I’m going to go off a guestimate: two grand?

• Offender:  [indecipherable]…the roll won’t cost you even that. The whole roll [indecipherable] maybe about, maybe 500 [indecipherable] for a roll? And the ink will probably cost you about [indecipherable].

20. On 5 March 2021, the offender arrived at the Storage Unit at 1.10am. He removed a plastic sheet from a tube. It depicted what appeared to be Australian currency. The offender fed the sheet into the shredder.

21. On 6 March 2021, the offender and another male arrived at the Storage Unit at 1.13am. The offender handed the male rolled sheets that he retrieved from the back of the Storage Unit and told him he also had shredded notes.

22. On 20 March 2021, the offender arrived at the Storage Unit at 5.37am with Robert Bevinetto, an associate of the offender. The offender retrieved rolled sheets that depicted Australian $100 bills.

23. On 3 April 2021, the offender arrived at the Storage Unit with Mr McCrea. The offender told Mr McCrea that he had to “get rid of” the rolled sheets depicting Australian currency.

24. On 5 May 2021, the offender attended the Storage Unit at 1.04am with an unknown male. The offender handed rolled sheets depicting Australian $100 bills to the unknown male, who felt the roll and said, “That’s fucking sick”.

25. On 18 May 2021, the offender attended the Storage Unit with an unknown male and showed him a template for a $100 bill on his laptop screen.

26. On 21 May 2021, the offender attended the Storage Unit at 1.41pm. Later that afternoon, an unknown male entered the Storage Unit. After carrying out repairs on the Printer, the offender pulled a sheet from the Printer which depicted $100 bills. The offender turned the sheet over and re-inserted it into the Printer.

27. On 22 May 2021, the offender and an unknown male attended the Storage Unit. The offender pulled out a sheet from the Printer which depicted $100 bills. The offender turned over the sheet and re-inserted it into the Printer. About an hour later, the offender and the male removed the sheet of notes from the Printer and hung it on the rear wall of the Storage Unit.

28. On 7 July 2021, search warrants were executed at the Storage Unit, the offender’s residential property and in two vehicles, one of which was owned by the offender.

29. A sheet of polymer on which 38 $100 notes of counterfeit currency had been printed using the Printer were seized. The offender’s DNA was found on the sheet.

30. The following items, used by the offender to make counterfeit currency, were also seized:

1. the Roland Printer;

2. multiple ink cartridges;

3. nine spray cans;

4. a paper shredder with shreds of polymer resembling parts of $100 bills located inside; and

5. seven rolls of polymer in various lengths.

31. The offender’s laptop was seized from his residence. On the device, Police located a number of high-resolution images of $100 notes.

State offences

32. The offender attended the Storage Unit and made false identification documents on several occasions between 3 March 2021 and 22 May 2021.

33. On 3 March 2021 the offender created multiple driver’s licences using images from his laptop and a printer at the Storage Unit.

34. On 5 March 2021 the offender attended the Storage Unit and used editing software to create and modify images of a passport photo and a NSW Driver’s Licence on his laptop. He then retrieved blank plastic cards from a drawer in his work table and printed at least two licences.

35. On 21 April 2021, the offender attended the Storage Unit with Mr McRea. The offender edited an image of a NSW Driver’s Licence on his laptop and then fed blank cards into the Printer to create fake licences.

36. On 22 May 2021, the offender attended the Storage Unit with another male. The offender took a photograph of the male against a white background and then used the photograph to create a false identity document.

37. In the search warrant executed on 7 July 2021, the following items were seized:

1. a box of plastic cards, with 233 blank cards, five blank cards with a Medicare card design, one blank card with a Victorian driver’s licence design, one blank credit card with a smart chip and six blank credit cards with magnetic strips;

2. a 72-character embossing machine;

3. multiple hologram stickers; and

4. various identification documents in the names of individuals other than the offender, including credit cards, driver’s licences and a Medicare card.

38. A number of computer files relating to forging identity information, including templates for NSW and Victorian driver’s licences, were located on the offender’s laptop, along with a large number of images of passports, driver’s licences and credit cards.

39. The offender’s phone was also seized during execution of the warrant and forensically analysed. Conversations relevant to Sequence 10 were found on his phone across a range of messaging platforms.

Conversations with “A.bosconovic”

40. Between 29 August 2019 and 11 February 2021, the offender exchanged messages over WeChat with a person using the handle “A.bosconovic”.

41. On 31 August 2019, the offender and “A.bosconovic” had a conversation in which the offender said that he could load a Velocity Bank card with up to $10,000 per day. The offender also offered to create login details for “A.bosconovic” for a website that he was operating, “1stoprortshop.com”, that allowed users to generate fraudulent identity documents, including driver’s licences and Medicare cards. The offender said that the website was still not functioning properly, and the licence generator was not working, but that most of the bank “logs” on the website should work. He also told “A.bosconovic” that there was no way to know whether the card details available on the website would work without buying something. The offender asked for a 25% cut of whatever was obtained from the account.

42. On 24 September 2019, “A.bosconovic” asked the offender if he knew how to make a rental agreement. The offender confirmed that he did and asked for “the details of the transfer”. The offender was sent the name of an unknown individual and her address, the name Adam Beavis identified as the rental agent managing the property, and the name “timothy K NOBES” and his BSB and account number. The offender said that he would make the rental agreement when he got home.

43. On 1 January 2020, “A.bosconovic” asked the offender if he had been “porting”, a reference to the process by which a mobile number is transferred to a new telecommunications provider without the permission of the phone’s owner. The offender confirmed that he had been “[p]orting Optus to Telstra” and that Medicare card details were required to do so. The offender also told “A.bosconovic” that he had been porting from Telstra to Australia Post SIM cards.

44. On 16 January 2020, “A.bosconovic” messaged the offender asking to buy “cba optus logs”. The offender told “A.bosconovic” that he had updated his website and added more CBA bank details, that there were probably ten accounts containing more than $10,000, and that the available bank “log” details on the website could be arranged by the size of the available balance.

45. On 19 January 2020, “A.bosconovic” told the offender that he knew someone who can make realistic identification cards for Victoria and NSW. The offender stated that he would like to speak to this person about how to create the hologram on the cards.

46. On 24 January 2020, the offender accepted an offer from “A.bosconovic” told the offender that he had someone’s Telstra, bank, bitcoin and email login details and offered to provide the NAB details to him, which the offender accepted.

47. On 22 September 2020, “A.bosconovic” sent the offender an image of a search warrant which listed “1stoprortshop.com”. The offender told him that he had “closed” the website some time ago.

Conversations with “X” on Signal

48. Between 31 July 2020 and 16 August 2020, the offender exchanged messages on the application Signal with a person using the handle “X”. On 31 July 2020, the offender agreed to make a fake driver’s licence for “X”. The offender sent a photo of a NSW Driver’s Licence with a woman’s name, date of birth and address. A minute later, the offender sent a message noting that there was a mistake on the licence and that he would redo it. Three minutes later, the offender sent “X” a photo of the amended licence.

49. The offender also offered to make “X” a Medicare card, which “X” accepted. Three minutes later, the offender sent a photograph with a Medicare card with the same name as the driver’s licence.

Conversations with unidentified person on WhatsApp

50. Between 29 January 2021 and 30 May 2021, the offender exchanged messages with an unidentified person (UP) on WhatsApp.

51. On 6 April 2021, the UP asked the offender for some credit card details and the offender sent a screenshot of credit card details arranged in a table. Three hours later, the UP wrote back and said that none of the details had worked and asked for details that worked. The offender later responded with a further screen shot of credit card details.

52. On 21 April 2021, the UP asked the offender whether he was calling banks that day to try to access authentication PINs, and the offender confirmed that he was. The UP sent two photos of a credit card. The offender responded that he hoped that he could still get the card “unlocked” because there was still $40,000 in the account.

Conversations with “Salami” on WhatsApp

53. On 5 July 2021, the offender exchanged the following WhatsApp messages with a person using the handle “Salami”. “Salami” said that they had lost the “card” and asked for another one. He requested that the card have a date of birth around 1980 – 1985. The offender asked for a selfie against a white wall with good lighting. Later that day, the offender asked “Salami” if they wanted to do a “walk in” at a Commonwealth Bank branch to withdraw $10,000. They agreed to split any money that they obtained from this “walk in” evenly, and the offender said that they could try for more money at a different branch.

Section 166 – Supply prohibited drug

54. During execution of the warrant at the offender’s residence, police located a bag containing a crystalline substance in the spare bedroom, which was identified on testing to be 13.56 grams of methylamphetamine. The offender’s DNA was positively identified inside the seal of the plastic bag.

55. Another bag containing a crystalline substance was located in the master bedroom, later identified as 4.54 grams of methylamphetamine.

56. The total weight of methylamphetamine located at the offender’s residence was 18.13 grams.

57. The offender was arrested on 7 July 2021. He declined to participate in an interview.

Sentencing Assessment Report

58. The Court received a Sentencing Assessment Report (dated 11 November 2022) which can be summarised as follows.

59. The offender has a supportive family, including his mother and four brothers.

58. The offender is in a long-term relationship and has lived with his partner for three years.

59. The offender completed high school, after which he was employed as a photographer. He completed an apprenticeship as a mechanic and then went on to study Audio Production at University. He has worked as an audio engineer in the music industry and as a printer.

60. The offender has set up a music studio for the Restoration Centre.

61. The offender expressed a desire to move with his partner to the Netherlands to pursue their careers in the music industry.

62. The offender has a criminal record consisting of historical driving offences, with the last being in 2014. He attributed these offences to “being young and stupid”.

63. The offender reported that he began using methylamphetamine at age 21. He began using it daily, commenting that he thought it made him a “better me” and more creative. He told the author of the report that his family and partner were unaware of his drug use.

64. He told the author of the SAR that he felt “challenged” to print Australian currency because of the degree of difficulty. He stated that he never used any of the counterfeit money and gave up printing it because of the expense involved. He stated that he thought that he had shredded all the counterfeit money, months before his arrest. He told the author of the SAR that he did not own all of the printing equipment.

65. The offender also told the author of the SAR that he had printed driver’s licences for friends and acquaintances in the past, occasionally accepting illicit substances as payment for doing so.

66. The offender said that he felt “sick as to what people could have done with the fraudulent licences”, recognising that businesses could have lost money as a result of his actions.

67. The offender stated that the drugs found at his residence were for his personal use and that he had never sold drugs in his life.

68. The offender stated that he did not make any money from the offences.

69. The offender was assessed as at a Low-Medium risk of reoffending, suitable for supervision and community service work, which could be offered at the rate of 21 hours per month.

Offender’s Case on Sentence

72. The offender tendered the following documents:

1. psychological report of Dr Carmelo Pollicina dated 10 November 2022;

2. supplementary report by Dr Pollicina dated 23 November 2022;

3. letter from Mitch Sanderson (the Restoration Centre) dated 14 March 2023;

4. character reference from Lisa McCall dated 10 November 2022;

5. offender’s letter of apology dated 10 November 2022;

6. the offender’s ABN details dated 8 November 2022;

7. two crime scene photos from police brief dated 7 July 2021;

8. 12 stills from police brief CCTV footage;

9. a short video about the Restoration Centre; and

10. a short video from the Discovery Channel featuring the offender.

73. Both the offender and his partner, Danielle Smith, gave evidence in Court.

74. The offender was extensively cross-examined about the offending conduct. The offender was a thoughtful and careful witness. He accepted responsibility for his actions. The explanations for his behaviour appeared to me to be truthful and they were largely corroborated by the objective evidence that was available. In assessing the offender’s evidence, I was mindful that between 2019 and 2021 he was engaging in large scale dishonesty. Nevertheless, I found him to be a credible witness. I formed the impression that his experience of prison and residential rehabilitation have changed him for the better.

75. The following is a precis of the evidence relied upon by the offender. I will try not to repeat matters raised in the SAR.

76. The offender was born in Dubbo in 1989. He is the eldest of five children. His parents are divorced.

77. The offender has a positive relationship with his mother and siblings. He described his relationship with his father as having been non-existent since he was three or four and the offender lacked a positive father figure from an early age.

78. The offender works in the music industry doing studio and production work. He is also a well-known solo artist in the electronic music industry and has taught many young artists to produce dance music. The offender also ran his own fine art printing business, Dune Printing Pty Ltd. The offender was the first person to create art prints that could glow in the dark. The offender tendered a clip from the Discovery Channel featuring the offender’s glow in the dark printing work.

79. The offender is currently receiving the Jobseeker allowance from Centrelink.

80. The offender reported that two of his brothers have been formally diagnosed with Attention Deficit Hyperactivity Disorder (ADHD). Dr Pollicina opined that the offender presented with a number of symptoms consistent with ADHD, including a short attention span, impulsivity, hyperactivity and a feeling of improved well-being when using methylamphetamine which is associated with an underproduction of dopamine. The offender has commenced taking anti-depressant medication to treat his ADHD.

81. Dr Pollicina opined that the attention to detail demonstrated by the offender in the offences, or “hyperfocus”, was also consistent with a diagnosis of ADHD.

82. The offender entered a rehabilitation program for drug use at The Rehabilitation Centre in January 2022. He has now graduated stage 5 of that program, which included periodic surveillance drug testing which the offender passed on each occasion. The offender reported that the program has motivated his desire to achieve total abstinence from illicit substances. Mr Sanderson, the General Manager of the Centre, stated that the offender has worked very hard to remain drug free. He was nominated as a leader of one of the programs, which he found to be rewarding and validating. Mr Sanderson stated that the offender has given back to the program through his actions and has been willing to help others struggling with addiction.

83. The program consisted of:

1. Weekly group counselling for drug and alcohol through the SmartRecovery program.

2. Weekly one-on-one counselling with care workers.

3. Religious based courses.

4. Weekly sport activities, house maintenance and other projects.

5. Creative arts programs, painting and music.

6. Community outreach activities, including barbeques for the homeless and food donation programs.

84. Since graduating from the program, the offender has become a volunteer staff member at the facility.

85. The offender has also been attending regular fortnightly sessions with a psychologist since his arrest to address relapse prevention and his ADHD.

86. The offender has expressed remorse to Dr Pollicina, Ms McCall and to the Court. He has also recognised the harm caused by his actions.

87. The offender tendered photos from the police brief which depicted shredded counterfeit notes found in the shredder at the Storage Unit.

88. Both the offender and Ms Smith told the Court that the reference to “bulk cash” in their conversation on 25 February 2021 was a reference to money they expected to make selling stickers for cigarette lighters that he had designed, some of which they printed on that day and were tendered in the sentence proceedings. Both the offender and Ms Smith gave evidence that she did not know that the offender had been printing counterfeit money until he was arrested.

89. In relation to the supply of methylamphetamine, the offender told the Court that he never actively sold drugs. He claimed that if someone in a social setting had used a lot of his drugs, he would expect them to pay him some money to compensate. He told the Court that on one occasion he supplied some methylamphetamine to a friend, and his friend repaid him by providing him the same quantity of the drug a few days later.

90. The offender was in custody between 7 July 2021 and 5 November 2021 until he was granted bail to participate in residential rehabilitation. In prison he was housed at the Metropolitan Reception and Remand Centre at Silverwater and then the Mid North Coast Correctional Centre. He found this time in custody salutary. He spent a significant proportion of his time in isolation as a result of COVID-19 restrictions in place at the time.

91. In cross-examination, the offender denied that he intended to try to pass the counterfeit currency that he produced and that his references to “bulk cash” and to conspicuous spending were references to the counterfeit currency that he was making and intended to use. These denials were corroborated by the evidence of Ms Smith about the conversation on 25 February 2021.

Consideration

The nature and circumstances of the Federal offences

92. Police located a sheet of polymer on which 38 counterfeit $100 bills were printed. The notes were complete in that they were printed on both sides, but they were not cut into individual notes which would have been necessary if they were to be passed. The only other physical counterfeit currency had been shredded and was found in the bin of the shredder. There was video evidence depicting that when some of this was shredded it was also in a larger sheet and had not been cut down into notes. The video surveillance of the Storage Unit between February and July 2021 did not produce any evidence that the offender had made any counterfeit currency that was cut into notes and therefore capable of being passed. The offender gave evidence that he had not considered how to cut the sheets into notes because he anticipated that would be a difficult process. I accept the offender’s evidence that he had stopped trying to print any counterfeit money by May 2021.

93. The offender had on his computer a number of high-resolution images of $100 notes. The offender went to significant lengths to produce a quality reproduction of the $100 notes, including the hologram feature. The offender’s evidence, which I accept, was that the notes had some imperfections and mistakes in them. There was no expert evidence from which I could determine the quality of the counterfeit money.

94. I accept the offender’s evidence that he did not intend to pass the counterfeit currency that he had produced. There was no evidence that he did so, or that he intended to do so. I accept that his attention to detail in producing the counterfeit currency was an exercise in hyperfocus caused by his ADHD.

95. I accept the offender’s evidence that he did not provide a completed sheet of the counterfeit $100 notes to anyone else. I accept the offender’s evidence that he did give a one-sided incomplete sheet to another person as a souvenir.

96. I accept the offender’s evidence that he did not intend to print any more counterfeit money and that he had taken steps to destroy the counterfeit money that he had printed.

Section 16BA offences

97. There is significant overlap in criminality between the principal offence and the s 16BA offences. The possession of the 38 counterfeit $100 notes does not add much to the making of them. Like the principal offence, there was no evidence that the offender intended to pass the notes and they were not in a format in which they could be passed. The offender was in possession of the Printer that had been used to print the counterfeit money but had also been used for other purposes including legitimate purposes. The offender was similarly in possession of materials knowing that they had been used to print counterfeit money. I take into account my finding that he was not in possession of the materials or the Printer with the intention of printing counterfeit money in the future.

98. I have taken into account the maximum penalty for the offence and my findings on moral culpability that I will come to.

99. Taking into account all of the circumstances, the objective gravity of the offence was relatively low.

The objective seriousness of the State offences

100. The principal State offence involves considerable objective gravity.

101. The deal in identification information charge is a rolled-up count relating to the offender’s possession of making and supplying identification information, with the intention of facilitating the commission of fraud. In the relevant period, the offender made false identification documents including driver’s licences and Medicare cards. He was in possession of identification information including 29 real and/or false identity documents and the details of 30 credit cards. He communicated with others about the creation of and trading of identity information, knowing that those persons intended to commit fraud. He assisted others to create false identity documents. He also operated a website giving others access to identity information. The offending conduct took place over almost two years.

102. The offence involved a series of criminal acts and I am satisfied that the aggravating factor provided for by s 21A(2)(m) Crimes (Sentencing Procedure) Act 1999 is established.

103. The possession of the embossing machine and the 246 blank plastic cards to make false identity documents are the subject of the Form 1 offences.

104. The amount of the drug was not significant, being 18.13g of methylamphetamine, being between three and four times the indictable quantity. The supply charge relies on the deeming provision. The offender was a user of the drug and I accept that a significant portion of the drug was for his own use. There was some minimal evidence of actual supply which was not for profit.

105. I have taken into account the maximum penalties for the offences and my findings on moral culpability.

Contrition and remorse

106. The offender has accepted responsibility for his actions and expressed remorse. His pleas of guilty also indicate remorse. I accept that he is sincerely contrite. For the State offences, I am satisfied that the mitigating factor provided for by s 21A(3)(i) Crimes (Sentencing Procedure) Act 1999 (NSW) is established.

Deterrence

107. General deterrence is a fundamental consideration in dishonesty offences and in particular offences involving the counterfeiting of currency. The sentence must be of such severity to deter others from engaging in fraud-related activities. The sentence must signal to would be participants that the financial rewards will be neutralised by the risk of severe punishment.

108. Specific deterrence is also relevant but is significantly reduced because the offender has accepted the wrongfulness of his actions and taken extensive steps to rehabilitate himself from drug use and to treat his underlying ADHD. With control over these factors, I am satisfied that the offender is unlikely to reoffend.

Character, antecedents, age, physical and mental condition

109. The offender is presently 34 years of age.

110. The offender has a criminal record for driving offences which are irrelevant to this sentencing exercise. For the State offences, I am satisfied that the mitigating factor provided for by s 21A(3)(e) Crimes (Sentencing Procedure) Act 1999 (NSW) is established.

111. The offender was a person of good character up to about the beginning of 2019. For the State offences, I am satisfied that the mitigating factor provided for by s 21A(3)(f) Crimes (Sentencing Procedure) Act 1999 (NSW) is established.

112. The offender is in good physical health but has a complex mental condition. I accept Dr Pollicina’s opinion that he suffers from ADHD and that his addiction to methylamphetamine was explicable by reference to self-medicating for that condition. The offender has accepted treatment for ADHD and has successfully completed residential rehabilitation to address his drug use. He remains committed to continuing his abstinence through counselling and undertaking volunteer roles with his rehabilitation provider.

113. His ADHD made him impulsive, hyper focused and made him more susceptible to stimulant use. There was a clear causal nexus between these features of his ADHD and the offending conduct. As a result, his moral culpability for the offences is reduced. General deterrence should be afforded less weight because the offender is not an appropriate person to be made an example of. The need to denounce the offences is also reduced and it is appropriate to reduce the sentences that would otherwise have been appropriate and to take into account his mental condition when determining how those sentences should be served.

Prospects of rehabilitation

114. The offender has excellent prospects of rehabilitation. I am satisfied that he has good insight into the causes of his offending conduct. He has a good support network and he has demonstrated through his participation in the program and by engaging a treating psychologist that he is committed to changing the matters that led him to commit the offences. In relation to the State offences, I am satisfied that the mitigating factor provided for by s 21A(3)(h) Crimes (Sentencing Procedure) Act 1999 (NSW) is established.

Comparable sentences

115. I have had regard to the comparable cases referred to me by the parties and I have taken into account the limitations of that exercise: Hili v The Queen (2010) 242 CLR 520. However, these cases support my conclusion that the counterfeiting offence was at the lower end of the scale of objective seriousness.

116. REDACTED.

117. REDACTED.

118. REDACTED.

Presentence custody

119. The offender was arrested on 7 July 2021 and remained in custody until 5 November 2021, being a period of 4 months (rounding up by 1 day).

120. I have taken into account the restrictions imposed on prisoners serving sentences in New South Wales in response to the COVID-19 pandemic. I am satisfied that those restrictions made the offender’s time in custody more onerous.

121. The offender is also entitled to some credit for the quasi-custodial conditions of his bail conditions and his residential rehabilitation. When he was first released, he could not leave his brother’s house unless in the company of his brother and was required to report to police 3 days per week. He commenced residential rehabilitation in January 2022. For the first 3 months of the program, he could not leave the premises for any reason. In the second 3 months, he had one day of leave per month and access to his mobile telephone at times. In the third 3 months, he had 2 days of leave per month and was thereafter relatively unrestricted. In all the circumstances, the offender should have further credit equivalent to a further 4 months of pre-sentence custody.

122. To give effect to the recognition of his pre-sentence custody of 8 months in total, I will back date the term of imprisonment imposed for the Federal offence to 4 September 2022.

Penalty

123. I have had regard to s 17A Crimes Act 1914 (Cth) and s 5 Crimes (Sentencing Procedure Act 1999. I am satisfied, having considered all other available sentences, that no sentence other than imprisonment is appropriate in all the circumstances of the case, for the reasons I have given in this judgment.

124. Brenton Michael Tongue is convicted.

Federal offence

125. For the Federal offence, taking into account the matters on the s 16BA schedule and the appropriate discount, I impose a term of imprisonment of 15 months to date from 4 September 2022.

126. Pursuant to s 19AC(1) Crimes Act 1914 (Cth), I order that the offender be released on 3 May 2023, having served 8 months of the sentence, on entering into a recognisance in the sum of $1 to be of good behaviour for 18 months.

127. If the offender fails to comply with the recognisance release order, further action against him may be taken. This may require him to return to court.

State offences

128. For the State offences, it is appropriate to impose an aggregate sentence pursuant to s 53A Crimes (Sentencing Procedure) Act 1999. The terms of imprisonment that I would have imposed for the State offences, if separate sentences were to be imposed, after taking into account the matters on the Form 1 and the appropriate discount are:

1. Sequence 10 – 2 years and 8 months;

2. Sequence 7 – 3 months.

129. I impose an aggregate term of imprisonment for the State offences of 2 years and 9 months.

129. I have had regard to s 66 Crimes (Sentencing Procedure) Act 1999 and I am satisfied that it is appropriate to order that the sentence be served by way of an Intensive Corrections Order (ICO), for the following reasons.

130. This is a case in which community safety is best achieved by the rehabilitation of the offender by requiring him to continue with intensive treatment of his mental condition and drug addiction in the community: R v Zamagias [2002] NSWCA 17 at [32] (Howie J). Prior to the offences, the offender’s ADHD was undiagnosed and his drug use was causally related to it. The offender has demonstrated that he can be rehabilitated to the extent that he does not pose a risk of reoffending. I am also satisfied that the offender has reached a point where if he was to be sent back to prison, he would lose the progress he has made with his rehabilitation. Out of the two options of sending him back to prison or imposing an ICO, I am satisfied that the protection of the community will be best achieved by the offender serving the sentence in the community by way of an ICO: Mandranis v R [2021] NSWCCA 97 at [51].

131. The severity of the offender’s mental condition and its direct causal relationship with the offending conduct, means that general deterrence, retribution and denunciation can be given less weight.

132. An order that the sentence be served by an ICO will make the offender accountable for his actions. An ICO is a sentence of imprisonment that will significantly impact on the offender’s freedom and will reflect the seriousness of the offending conduct and the harm done to the victims and the community.

133. Pursuant to s 7(1) Crimes (Sentencing Procedure) Act 1999, the sentence imposed is to be served by way of an ICO. The sentence will commence today (3 May 2023) and expire on 2 February 2026.

134. The offender must report to the Windsor Community Corrections Office on or before 4pm on 10 May 2023.

135. The standard conditions of the order apply:

1. the offender must not commit any offence; and

2. the offender must submit to supervision by a Community Corrections Officer.

137. The following additional conditions apply:

1. the offender must abstain from taking all restricted or prohibited drugs, except those prescribed by a medical practitioner;

2. the offender must receive treatment for his mental health as reasonably directed by Community Corrections;

3. the offender must receive treatment for drug rehabilitation as reasonably directed by Community Corrections; and

4. the offender must complete 120 hours of community service.

138. If the offender fails to comply with the conditions of this order, sanctions may be imposed by the Commissioner of Corrective Services or the State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or a revocation of this order. If the order is revoked, the offender may be required to serve all or some of the period of the sentence in full time custody.

139. The offender must attend the Registry where a copy of the order will be explained and given to him.

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Decision last updated: 31 May 2023