R v Yeoh; R v Mohammed; R v Zhang and R v Lee

[2018] NSWDC 201

District Court

New South Wales

• Amendment notes

Medium Neutral Citation:

R v Yeoh; R v Mohammed; R v Zhang and R v Lee. [2018] NSWDC 201

Hearing dates:

6 June 2018

Date of orders:

28 June 2018

Decision date:

28 June 2018

Jurisdiction:

Criminal

Before:

Scotting DCJ

Decision:

Mr Yeoh – see paragraphs [140]-[144]
Mr Mohammed – see paragraphs [145[-]149]
Ms Zhang – see paragraphs [150]-[154]
Mr Lee – see paragraphs [155]- [161]

Catchwords:

CRIMINAL LAW – sentence – identity fraud – manufacture of false identity documents
SENTENCING – aggravating factors – mitigating factors – planned or organised criminal activity – financial gain – assistance to law enforcement authorities – no record of previous convictions – plea of guilty – prospects of rehabilitation – objective seriousness – general deterrence – specific deterrence – co-offenders
SENTENCING PRINCIPLES –– parity – remorse – special circumstances – exceptional hardship
OTHER – manufacture of fraudulent drivers’ licences and Medicare cards – persons assumed false identities to obtain loans – banks defrauded

Legislation Cited:

Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Drug Misuse and Trafficking Act 1985

Cases Cited:

Dipangkear v R [2010] NSWCCA 156
Hoskins v R [2016] NSWCCA 157
R v Borkowski (2009) 195 A Crim R 1
R v Houghton [2000] NSWCCA 62
R v Phelan (1993) 66 A Crim R 446
R v Thomson & Houlton (2000) 49 NSWLR 383

Category:

Sentence

Parties:

R v Aik Chuan Yeoh
R v Ziauddin Mohammed
R v Ya Fang Zhang
R v Michael Lee

Representation:

Mr Yeoh:
C: Mr A Robertson of counsel
D: Mr A Parsons

 

Mr Mohammed:
C: Mr Adrian Robertson of counsel
D: Mr Terrance Thorpe of counsel

 

Ms Zhang:
C: Mr A Robertson of counsel
D: Mr M Smith, solicitor

  Mr Lee:
C: Mr A Robertson of counsel
D: Mr Terrance Thorpe of counsel

File Number(s):

Yeoh: 2015/370847; Mohammed: 2015/370631; Zhang: 2016/176132; Lee: 2015/370863

Publication restriction:

Yes. Non-Publication Order re s23 issue; identity of Mr Lee’s son to be anonymised

Judgment

1. Aik Chuan Yeoh appears for sentence after he pleaded guilty in the District Court to 2 counts of dealing with identification information of one fictitious person with the intention of facilitating the commission of an indictable offence contrary to section 192J Crimes Act 1900. Mr Yeoh also asks the Court to take into account, one count of possess prohibited drug being 4.87g of methylamphetamine contrary to section 10(1) Drug Misuse and Trafficking Act 1985, one count of possessing material for making false documents with intent to commit forgery contrary to section 256(1) Crimes Act 1900 and one count of participating in a criminal group contrary to section 93T(1) Crimes Act 1900 on a Form 1.

2. Ziauddin Mohammed appears for sentence after he pleaded guilty in the District Court to one count of dealing with identification information of 11 fictitious persons with the intention of facilitating the commission of an indictable offence contrary to section 192J Crimes Act 1900 and one count of participating in a criminal group contrary to section 93T(1) Crimes Act 1900. Mr Mohammed also asks the Court to take into account a charge of dealing with property being $73,750 in cash suspected of being the proceeds of crime contrary to section 193C Crimes Act 1900 on a Form 1.

3. Ya Fang Zhang appears for sentence after she pleaded guilty in the District Court to one count of dealing with identification information of 28 fictitious persons with the intention of facilitating the commission of an indictable offence contrary to section 192J Crimes Act 1900 and one count of participating in a criminal group contrary to section 93T(1) Crimes Act 1900.

4. Michael Lee appears for sentence after he pleaded guilty in the District Court to one count of possessing equipment to make false documents to commit the offence of forgery contrary to section 256(1) Crimes Act 1900, 2 counts of dealing with identification information of 33 and 26 fictitious persons with the intention of facilitating the commission of an indictable offence contrary to section 192J Crimes Act 1900, and one count of participating in a criminal group contrary to section 93T Crimes Act 1900.

5. The maximum penalty for the section 192J offences is 10 years imprisonment. The maximum penalty for the section 93T offences is 5 years imprisonment. The maximum penalty for the section 256(1) offence is 10 years imprisonment.

Facts

6. The parties presented 4 sets of Agreed Statement of Facts, one for each offender. Each set of facts is very long and detailed to reflect the complexity and sophistication of the scheme. It is necessary to go into detail about one false identity, Vinod Sam, which is relevant to each offender. The facts thereafter adopt a similar structure, to set out a false identity and to trace through the information relevant to each offender’s role in the manufacture and use of that identity from the evidence gathered. It is not necessary to set out that exercise because the pattern of conduct is repeated and clearly demonstrated by reference to the Vinod Sam identity. Further, a lot of the matters in the facts refer to co-offenders who have not been identified or charged. I have noted later the number of fictitious identities relevant to each offender.

7. The facts can be summarised as follows.

8. In July 2015 police commenced an investigation into the activities of Mr Yeoh, Mr Mohammed, Ms Zhang, Mr Lee, Gurpreet Singh and Tran Hai Cao relating to the manufacture and use of false identification documents, particularly NSW Drivers’ Licences and Medicare cards. Police obtained a number of telephone intercept warrants and also conducted physical surveillance of the persons of interest.

9. In summary, Mr Mohammed placed orders for false driver’s licences and Medicare cards by providing fictitious names, addresses and dates of birth and arranged for the provision of photographs of real persons to be depicted on the driver’s licences, to Mr Cao. Mr Mohammed was provided with money to be given to Mr Cao by a third party to pay for the false identification documents and was separately paid for his services.

10. Mr Cao passed on the order for the false identity documents to Ms Zhang. Mr Cao gave Ms Zhang the money he was given less an amount for his services.

11. Ms Zhang then passed the order onto Mr Yeoh. Ms Zhang put the money to be given to Mr Lee in an envelope and gave it to Mr Yeoh for delivery to Mr Lee. Ms Zhang paid Mr Yeoh separately for handing the order on.

12. Mr Lee received the order for the false identification documents from Mr Yeoh or Ms Zhang. He was paid $300 for a driver’s licence and $100 for a Medicare card. Mr Lee manufactured the documents at his home and they were conveyed back to Mr Mohammed or Mr Singh in the reverse order.

13. On one occasion, Mr Mohammed made arrangements with Mr Cao to have a person assume the false identity and attend a bank for the purpose of obtaining a personal loan, using the false identification documents. On that occasion, Abraham Maka attended the Marrickville branch of the National Australia Bank and obtained finance in the sum of $24,500, using the false identity ‘Vinod Sam’. Mr Cao remained in constant telephone contact with Mr Maka whilst he was at the bank and reported back to Mr Mohammed. The money was paid as nominated by Mr Maka and has not been recovered by the Bank. Mr Mohammed paid Mr Cao for his services and the services of Mr Maka for attending the bank and obtaining the funds. The driver’s licence in the name of Vinod Sam was later recovered during a search of Mr Mohammed’s residence.

14. Police intercepted telephone communications including voice calls and WeChat messages and located physical evidence at the residences of each of the co-offenders relating to their involvement in a number of similar transactions. Police also had a number of meetings between the participants under physical surveillance.

15. The false identification documents were used to obtain a number of loans from the National Australia Bank, St George Bank Limited and the Westpac Banking Corporation. The funds advanced on those loans were not recovered.

16. At about 6.15am on 16 December 2015, police executed a search warrant at Mr Lee’s residence. They located blank card stock, an embossing machine, computer equipment and a ‘Fargo’ branded card printer. Forensic analysis of the computer equipment and printing equipment indicated their use in the manufacture of the false identification documents. Mr Lee was arrested and taken to Campsie Police Station. He declined to be interviewed.

17. At about 6.05am on 17 December 2015, police executed a search warrant at Mr Cao’s residence. Mr Cao was arrested and taken to Flemington Police Station. He participated in an electronically recorded interview. He told the police that he obtained identification information from an Indian male, usually for driver’s licences and Medicare cards including photographs. He forwarded this information to a female known as ‘Mandy who he later identified to be Ms Zhang. He also sent information to a person he described as an Asian male who he later identified to be Mr Yeoh. Once the identification documents had been manufactured, the offender stated that he collected them from Ms Zhang or Mr Yeoh before delivering them to the Indian male. Mr Cao stated he was paid $1,200 for the cards of which he kept $200 and Ms Zhang took possession of the remaining $1,000. He did not know specifically what the fraudulent identification documents were used for but he knew that it was to do with something with the banks.

18. At about 6.10am on 17 December 2015, police executed a search warrant at Mr Yeoh’s residence. Police located blank card stock for Medicare cards, ANZ credit cards and Westpac credit cards. Mr Lee was arrested and taken to St George Police Station. He declined to be interviewed.

19. At about 6.15am on 17 December 2015, police executed a search warrant at Mr Singh’s residence. Police located a number of NSW Driver’s Licences and Medicare cards in various names, several mobile telephones, laptop computers, redirected mail, hundreds of post office box keys and handwritten notes containing identification information. Mr Singh was not arrested pending further enquiries. He left Australia for India on 10 January 2016 and has not returned.

20. At about 6.47am on 17 December 2015, police executed a search warrant at Mr Mohammed’s residence. He was arrested and conveyed to Auburn Police Station. Police located a number of NSW Driver’s Licences and Medicare cards in various names, including the driver’s licence in the name of Vinod Sam and $73,750 in cash. Mr Mohammed participated in an electronically recorded interview, which I will refer to in more detail later.

21. At about 8.30am on 17 December 2015, police executed a search warrant at Ms Zhang’s residence. Police located a number of iPhones, a box of Chnese New Year envelopes and documents concerning Mr Lee. Ms Zhang was interviewed voluntarily as she was not under arrest. She declined to answer any questions about her involvement in the supply of false identification documents. She admitted being an associate of Mr Cao. She left the interview pending further investigation and forensic analysis of the items seized.

22. Mr Lee produced 34 sets of false identification documents and loans were obtained from the banks resulting in a loss of $595,821.43.

23. Mr Yeoh, Mr Mohammed, Ms Zhang, Mr Lee, Mr Singh and Mr Cao had formed a criminal group. Each member of the group had a different role which I will not repeat. The criminal group operated for about 6 months.

Pre-sentence reports (PSR)

Ziauddin Mohammed

24. The Court received a PSR for Mr Mohammed dated 4 June 2018, the contents of which can be summarised as follows.

25. Mr Mohammed came to Australia in 2007 and lives in a share house with 5 other people. Whilst in Australia he has undertaken tertiary study in business and information technology and had part time employment in retail. He is presently unemployed and receives financial support from his parents in India.

26. Mr Mohammed experienced financial difficulties at the time of the offences and was motivated to participate in the offences by the possibility of an offer of employment, which he needed to qualify for a visa to remain in Australia. He was told that if he did the things asked of him that he would be offered legitimate employment and sponsorship for his visa application.

27. Mr Mohammed told the author of the PSR that he was unaware of the offences and disputed the police facts. He agreed that there were means available to him to improve his financial and employment position, that his associates were criminals and that he could have ceased contact with them.

28. Mr Mohammed was assessed as a low risk of reoffending, unlikely to benefit from supervision and suitable for a Community Service Order.

Mr Yeoh’s case on sentence

29. Mr Yeoh read an affidavit sworn by him on 6 May 2018 and he was cross-examined. The content of the affidavit can be summarised as follows.

30. Mr Yeoh was born in Malaysia in 1971. On leaving school at age 16, Mr Yeoh worked in Japan as a labourer in the construction industry. He returned to Malaysia a few years later and worked in a number of restaurants.

31. In 1999 he came to Australia and continued to work in restaurants. He had a relationship with Ms Yeung in 2005 and they had a son. The relationship ended shortly afterwards. He married Ms Goh in 2008 and was divorced in 2012.

32. At about this time, Mr Yeoh took up work as a painter.

33. In 2015 he re-commenced his relationship with Ms Yeung, at which time their son was 10 years old.

34. He deposed that his partner had a bad gambling problem and that he decided to get involved in the offences to make money to support his family and to pay his partner’s gambling debts. On a few occasions he collected identification documents from Michael Lee and delivered them to Ms Zhang and he received $100 on each occasion from Ms Zhang. Ms Zhang approached Mr Yeoh because she knew he was a friend of Mr Lee.

35. On each occasion he would give Mr Lee money in an envelope that had been given to him by Ms Zhang. He never opened the envelopes and does not know how much money Mr Lee received.

36. During the course of the offences a man gave Mr Yeoh a bag of blank cards and asked him to sell them to Mr Lee for $20 each. He was told that he could keep a share of the profit if he did so. Mr Yeoh did not get around to selling the cards to Mr Lee and the police found them at his home.

37. Mr Yeoh started his own painting business in 2016, ACY Painting Pty Ltd. His business has grown and he now has a number of contracts for painting commercial developments. He has a number of vehicles and employs 4 permanent staff and 8 casual staff.

38. Mr Yeoh expressed remorse for his actions and does not want to return to criminal activities. He continues to experience difficulties at home with Ms Yeung who is often violent towards him.

39. In cross-examination, Mr Yeoh gave evidence that he was friends with both Ms Zhang and Mr Lee. Ms Zhang asked him to get involved. Mr Yeoh met Mr Lee through doing some painting jobs for him.

40. Mr Yeoh also tendered some contracts for the painting business.

Mr Mohammed’s case on sentence

41. Mr Mohammed tendered educational certificates from India, indicating that he was awarded a Bachelor of Commerce, he had completed a Graduate Diploma in Computer Applications and a course in hardware and networking. He was employed as a lab instructor at a software company between 2003 and 2005.

42. In Australia, Mr Mohammed has completed a Certificate IV in Information Technology (programming), a Certificate IV in Information Technology (support), a Certificate IV in Business and a Diploma of Management.

43. It was agreed that Mr Mohammed was in immigration detention as a result of these charges between 16 September 2016 and 21 December 2016. He has been granted a criminal justice stay visa until the conclusion of the proceedings.

44. Mr Mohammed also relied on the content of his electronically recorded interview (ROI) with the police, for the following propositions. First, that he made admissions against his interest and consistent with what he told the author of the PSR. Second, that he told the police about the location of the cash at a time when the police had not located it.

45. From the ROI, it should be noted that Mr Mohammed gave the police the PIN code to his mobile telephone. Mr Mohammed told the police that he was looking for sponsorship from an employer to assist him to stay in Australia. He met a man by the name of Bharat, who introduced him to a man named Emmanuel.

46. He was told to lodge his visa application, but found out that it would cost him about $30,000. Emmanuel asked him to do some work for him and he could earn the money required for the visa application. Mr Mohammed believed that Emmanuel could get him sponsorship. Emmanuel gave Mr Mohammed a mobile telephone to use.

47. About 15 days before he was arrested Emmanuel gave Mr Mohammed about $65,000 or $70,000 in cash. He was asked to put it into his account and Emmanuel would get it from him later. Mr Mohammed refused to put the money into his bank account because he did not know where it came from. He was then told to hold onto the money and Emmanuel would collect it in a few days.

48. Mr Mohammed told the police he was given money by Emmanuel and was instructed to collect the IDs from a Chinese man named Michael. Michael’s phone number was in the mobile telephone that Emmanuel gave to him. He said he was given $200 or $250 for this work on 3 or 4 occasions. He was asked to keep the money and the IDs at his place. He received $2,000 from Emmanuel on the day before he was arrested. He would meet Emmanuel at Town Hall, Newtown or in a park near his house.

49. Mr Mohammed told the police that he had wrapped the money given to him by Emmanuel in a towel that was in his room.

50. Mr Mohammed gave scant details about Emmanuel and an unconvincing description. He denied any knowledge of persons using the false identification documents to obtain bank loans.

51. On this issue I must be wary of accepting the word of Mr Mohammed who has pleaded guilty to dishonesty offences. I am satisfied that Mr Mohammed did bring to the police’s attention the cash in his room at a time when the search was continuing. I do not accept that he did not know that the false identification documents were being used for the purpose of obtaining bank loans. The telephone intercepts of his dealings with Mr Cao and his knowledge of the involvement of Mr Maka prove otherwise.

52. Whilst he made some admissions against his interest in the ROI, they were not full and frank admissions and I am satisfied that he was not being truthful about what he knew about Emmanuel.

53. I am also satisfied that he was not being truthful when he spoke to the author of the PSR. Mr Mohammed has tried to minimise his involvement in the offences and has not accepted responsibility for his actions. This is not an aggravating factor but does not assist him in mitigation of the sentence to be imposed.

Ms Zhang’s case on sentence

54. Ms Zhang was called to give evidence and was cross-examined.

55. Ms Zhang is 58 years of age and is employed making dumplings. She has received formal training as a cook. She lives with her husband and they do not have any children. She agreed with the facts and understands the basis on which she is to be sentenced.

56. Ms Zhang was born in China and grew up in Suzhou before moving to Shanghai. She has one brother still living in China and they are very close.

57. Ms Zhang came to Australia in 1990 as a student and stayed until she was granted citizenship. She has always worked in the hospitality industry. She has managed a restaurant and a karaoke bar.

58. Ms Zhang got into trouble with the police in 2005 as a result of the activities of her boyfriend, Vincent Tan. They broke up after that and he returned to Malaysia.

54. Ms Zhang met Mr Cao when she was working at the karaoke bar at the Mandarin Club in about 2002. Mr Yeoh had been a friend of her ex-boyfriend, Mr Tan. Mr Cao asked her if she could source fake identification documents. She then asked Mr Yeoh, who introduced her to Mr Lee. She participated in the offences to make a little extra money. She was paid $50 for a driver’s licence and $30 for a Medicare card. She understood that the identification documents would be used to commit fraud. Ms Zhang did not know that the fraud involved banks or how much money was involved.

55. Ms Zhang expressed regret for her actions and gave evidence that she knew what she did was wrong. She accepted that she participated in a criminal group.

56. In cross-examination, Ms Zhang denied that she knew that the fraud involved banks. She accepted that the fake identification could have been used to obtain a credit card in a false name.

57. Ms Zhang tendered 3 character references. She has been a volunteer for the Lions Club at a number of charity events. The referees speak highly of her and she is a valued employee.

58. Ms Zhang tendered a letter from her general practitioner. She suffers from hypertension with fluctuating blood pressure which is treated with medication. She has torn rotator cuffs in her shoulders that cause pain, for which she receives physiotherapy. She is unable to lift 3kg above her shoulders. She also has degenerative disease in her cervical and lumbar spine and experiences pain as a result of narrowing at the C6/7 level.

Mr Lee’s case on sentence

Note: Non-publication order paragraphs [130]-[131]; identity of son to be anonymised

64. Mr Lee tendered a report of Dr Olav Nielsen, psychiatrist dated 24 January 2018. The report was completed by the psychiatrist relating to Mr Lee’s son, XXX. The content of the report can be summarised as follows.

65. The psychiatrist was provided with background reports and interviewed both Mr Lee and his son. The purpose of the report was to assess the impact on XXX if Mr Lee was to be imprisoned.

66. Mr Lee is the sole carer for XXX. His mother lives in China and suffers from schizophrenia and has experienced psychotic episodes. Mr Lee left China with XXX in 2011 to protect him from his mother.

67. In 2012, XXX was diagnosed with autism spectrum disorder (ASD), attention deficit hyperactivity disorder (ADHD) and separation anxiety. He has been treated with medication for anxiety and sleeping difficulties.

68. On 2 July 2016 Mr Lee and XXX were the victims of a home invasion. Two men entered their unit after announcing that they were police. Mr Lee opened the door quickly, because on a previous occasion the police had kicked his door in. The men had weapons. They grabbed Mr Lee and put him on the floor. XXX woke up and saw what was happening. The men threatened to kill XXX if Mr Lee did not give them money. They inflicted injury on Mr Lee in XXX’s presence. Mr Lee reported the matter to police and was taken to hospital for his injuries.

69. As a result of the home invasion XXX was very traumatised and anxious. He has seen a counsellor and social worker. XXX now sleeps with the light on and is anxious when he is not with his father, including at school.

70. Mr Lee’s mother is 80 years of age and walks with a stick. She is looking to move into aged care. Mr Lee told the psychiatrist that she was not capable of looking after XXX. Mr Lee has a daughter from a previous marriage (XXX’s half-sister). She is single and still studying and not in a position to look after XXX.

71. Mr Lee has been seeing a counsellor after the home invasion to deal with symptoms of anxiety. He was also prescribed medication for a short period, but he stopped taking it as he found it unhelpful.

72. Mr Lee reported suffering from diabetes and high cholesterol.

73. Dr Nielsen opined that XXX suffers from anxiety disorder and a possible developmental disorder. The anxiety disorder was best described as a form of post-traumatic stress disorder and manifesting separation anxiety.

74. Dr Nielsen opined that on the available information, XXX was almost completely dependent on his father for his day to day care and would be vulnerable to further instability and neglect if his father was imprisoned. Separation from his father is likely to trigger anxiety symptoms or disorder that could further hamper his emotional development and educational performance. Dr Nielsen noted that his opinion was limited because he was not an expert in childhood development.

75. Mr Lee tendered a report of Dr Julie Parle, consultant paediatrician, dated 12 March 2018. Dr Parle has seen XXX periodically from 2015 when he was aged 7 in the context of assessing him for developmental problems. The content of the report can be summarised as follows.

76. XXX came to Australia in 2011 at the age of 3. His mother had been diagnosed with schizophrenia and had been hospitalised on multiple occasions with significant mental illness. Since that time, Mr Lee has been his sole carer. XXX requires a high level of care relative to his age because of difficulties with attention, impaired executive function and poor coordination. He has severe language delay and autism.

77. XXX has had worsening anxiety since the home invasion. He sleeps with his father and has recurrent nightmares. Dr Parle noted that this type of trauma is likely to be particularly distressing for a child with pre-existing anxiety, developmental and genetic vulnerability.

78. XXX has been treated with medication and requires speech therapy, occupational therapy and psychological counselling. Mr Lee has been awaiting NDIS funding to afford these services.

79. Dr Parle opined that XXX is already suffering from generalised anxiety and separation disorder and there is a high risk that he will suffer worsening anxiety and affective regulation, if his father is imprisoned. Dr Parle opined that XXX is a boy who could be easily manipulated in a foster placement.

80. Mr Lee tendered a report of Bradley Jones, forensic psychologist, dated 30 May 2018. Mr Jones saw Mr Lee twice for the purpose of preparing the report. The content of the report can be summarised as follows. I will not repeat matters of history or things I have already referred to.

81. Mr Lee told the psychologist that he was involved in making fake driver’s licences and Medicare cards. He would be paid $300 for a driver’s licence and $100 for a Medicare card. He reported finding regular part time work during school hours difficult and he did not think about the extent of his offending or the consequences it had for others.

82. Mr Lee is 52 years of age. His sister lives in Canada and their relationship is amicable, but not close. His mother is 81 years of age and lives in Riverwood. He does not see her often. His father lives in China in a nursing home and Mr Lee has limited contact with him.

83. Mr Lee gave a history of conflict between his parents when he was young. He was sent to boarding school and preferred to stay away from home because of the conflict between his parents. He felt under pressure to perform academically as a child and does not think that he lived up to his parents’ expectations. His parents divorced in 1995 and his father remarried.

84. Mr Lee was born in China in 1988 and came to Australia at age 23. He returned to China in 2007 and married his second wife. She developed a psychotic disorder and was diagnosed with schizophrenia when her son was 3 years of age. He returned to Australia with his son in 2011.

85. Mr Lee had another intimate relationship in 2012 when holidaying in China. He has a son who is presently 5 years of age from that relationship, but he has no contact with him.

86. Mr Lee completed schooling to Year 12 equivalent in China. He did not enjoy school and left at the first opportunity. He has had a number of occupations in Australia, mostly on a part time or casual basis. In 2015 he was unemployed and receiving the single parent pension. He received a carer’s pension from 2016 to care for XXX.

87. The men involved in the home invasion stole $6,000 from him on that occasion. They were subsequently arrested and were due to go to court at the time he saw the psychologist. Mr Lee thought that the court proceedings would cause him anxiety and stress. He has been seeking counselling for this since 2015.

88. Mr Lee expressed concern for the welfare of XXX because of his conditions and on the basis that there would be no one to care for him, if Mr Lee goes to gaol.

89. Mr Lee has involved himself in charitable works since his arrest for the present offences, in an effort to atone.

90. The psychologist had the opportunity to observe Mr Lee and XXX interact. He opined that they had a very close attachment. XXX demonstrated infant attachment behaviours towards his father.

91. Mr Lee reported being anxious and depressed about his predicament. He is worried about the financial and emotional effects his incarceration will have on XXX. The psychologist administered psychometric testing that demonstrated moderate levels of anxiety and severe levels of depression.

92. Mr Lee reported committing the offences to support XXX and his needs for therapy. After his arrest he has applied for additional financial payments and has secured public housing, which have alleviated his financial difficulties to some extent.

93. The psychologist opined that Mr Lee presently meets the criteria for a diagnosis of Adjustment Disorder with mixed anxiety and depressed mood. As I read the report, most of Mr Lee’s concerns arise from his present predicament and the aftermath of the home invasion.

94. The psychologist assessed Mr Lee as a low risk of reoffending. He recommended psychological treatment in the form of cognitive behavioural therapy and referral to social support services.

95. The psychologist opined that interpersonal relationships are important in protecting children from anxiety and depression. Research demonstrates that children with inconsistent caretakers are much more vulnerable. It is likely that the separation of Mr Lee from XXX will lead to a significant exacerbation of XXX’s anxiety disorder and will increase the likelihood of developing a depressive disorder.

96. Mr Lee tendered his police statement relating to the home invasion dated 3 July 2016 and the Victim Impact Statement prepared by him on behalf of himself and XXX. I have taken the content of those documents into account and it is not necessary to refer to them further. Mr Lee also tendered medical records of the injuries he suffered in the home invasion and photos of those injuries.

97. Mr Lee tendered a report from Dr Robert Chong, ophthalmic surgeon dated 1 February 2018. The report indicates that Mr Lee suffers from diabetic retinopathy, which threatens his sight. He has had laser treatment and was advised to discuss control of his diabetes with his general practitioner.

98. Mr Lee tendered a report from Dr Donald Lin, general practitioner dated 25 April 2018. Dr Lim has treated Mr Lee for 20 years. Dr Lin reports that Mr Lee was diagnosed with acute coronary heart disease in December 2017 and had to be hospitalised for surgery to insert stents in his coronary arteries. Mr Lee also suffers from hyperlipidaemia, diabetes mellitus, depression and diabetic retinopathy.

99. Mr Lee tendered a character reference from Rev Bill Crews of the Exodus Foundation dated 30 July 2016. Mr Lee has been a volunteer in the work of the Foundation since February 2016 and has expressed remorse to Rev Crews for his part in the offences.

100. Mr Lee tendered an undated Statement prepared by him. I will not repeat matters I have already referred to. Mr Lee knew Mr Yeoh socially for many years. He did not know any of the other persons involved in the offences. Mr Lee received orders from Mr Yeoh for the driver’s licences and Medicare cards and was paid for them. He accepted that they would be used for a dishonest purpose, namely fraud. He committed the offences out of financial hardship. After the offences and the home invasion, Mr Lee and XXX have moved into public housing and received NDIS funding and that has provided some financial relief. He has been volunteering for the Exodus Foundation and donating blood since 2016. Mr Lee accepts that his offences are serious and unforgiveable. He expressed concern for the effects of his actions on his son and asks for compassion.

Consideration

Objective seriousness of the offences

101. The dealing with identification information charges reveals a sophisticated and organised criminal operation. The orders for fake driver’s licences and Medicare cards were placed by Mr Mohammed with Mr Cao. The orders were then passed on to Ms Zhang and Mr Yeoh, before ultimately ending up with Mr Lee. Mr Lee would then make the false driver’s licences and Medicare cards and they would be supplied back through the chain of people in the reverse order. This process provided some protection from detection for the persons involved in the offences.

102. Mr Lee possessed and used the equipment to make all of the false identification documents involved in the scheme. He was paid per item; $300 for a licence and $100 for a Medicare card. The fake identification documents were of high quality and were accepted repeatedly as authentic documents by a number of different persons. The involvement and skill of Mr Lee was essential to the success of the scheme. Mr Lee made all of the false identification documents. They were used to obtain loans that were not repaid, resulting in a loss of $595,821.43 to the banks.

103. Mr Yeoh and Ms Zhang acted as links in the supply chain. Ms Zhang supplied money for Mr Lee in an envelope as well as payment for Mr Yeoh at the rate of $100 per delivery. Ms Zhang was paid $50 for a driver’s licence and $30 for a Medicare card supplied. Ms Zhang received orders and payment from Mr Cao. Ms Zhang had a superior position in the hierarchy to that of Mr Yeoh, but an inferior position to that of Mr Cao.

104. Mr Yeoh has been charged with dealing with the identification information for 2 fictitious persons, Vinod Sam and Connor Bradley. Those false identities were used to obtain $50,500 from the National Australia Bank that has not been recovered.

105. Ms Zhang has been charged with dealing with the identification information of 28 fictitious persons. Those false identities were used to obtain $489,673.84 from the banks that has not been recovered.

106. Mr Mohammed supplied the false details to Mr Cao to be incorporated into the fake identification documents and photographs to be used were supplied by persons associated with him, with the exception of one photograph of Mr Maka that was taken by Mr Cao. Mr Mohammed told the police he was paid between $200 and $250 for each occasion he placed an order for the fake identification documents. Mr Mohammed provided payment for the fake identification documents to Mr Cao. Mr Mohammed was involved in discussions with Mr Cao arranging Mr Maka to assume the false identity ‘Vinod Sam’ to obtain finance from the National Australia Bank. Mr Mohammed was in possession of 3 false driver’s licences after they had been used to obtain finance from banks. Mr Mohammed was aware of the fraud being perpetrated on the banks through the use of the false identity documentation he was ordering. Mr Mohammed had a superior position in the hierarchy to that of Mr Cao and was close to the unknown participants who were receiving funds from the loans. He was in a position of trust with those people, who left large sums of cash derived through the operation and a number of the false identification documents in his safe keeping.

107. Mr Mohammed has been charged with dealing with the identification information of 11 fictitious persons. Those false identities were used to obtain $267,000 from the banks that has not been recovered.

108. A large number of the false driver’s licences used to obtain finance from the banks were located during a search warrant of Mr Singh’s premises, indicating that he was in a superior position in the hierarchy to that of Mr Mohammed.

109. The total loss to the banks was $595,821.43. The offenders’ participation in the offences allowed that loss to occur. None of the offenders had actual knowledge of the extent of the fraud, but Mr Mohammed had actual knowledge of at least 3 of the loan transactions in the amount of about $75,000.00.

110. Each offender participated in the scheme for financial gain.

111. The criminal group operated for about 6 months, between July 2015 and December 2015. Each of the members of the group had a defined role. They each received money as a result of being in the criminal group. The operation of the group was organised and sophisticated.

General Deterrence

112. Identity offences are prevalent and general deterrence should be reflected in the penalties imposed for them.

113. General deterrence may be afforded less weight where an offender suffers from a mental condition. The evidence relied on by Mr Lee does not allow me to conclude that there was any causal connection between his present mental condition and the offending conduct. I accept that his present mental state may make any time in custody more difficult, particularly by reference to his anxiety about being separated from his son.

Specific deterrence

114. Specific deterrence is relevant to each of the offenders.

115. In Mr Yeoh’s case the need for specific deterrence is reduced. His involvement in the operation was the least of all of the offenders. Mr Yeoh has a limited criminal history and is now gainfully employed in his own business. He has good prospects of rehabilitation and he is a low risk of reoffending.

116. In Mr Mohammed’s case, specific deterrence is relevant because he has not accepted responsibility for his actions. I accept that he has lost a considerable opportunity to live in Australia as a result of the offences.

117. In Ms Zhang’s case, she has prior convictions for dishonesty offences dealt with by the District Court in 2005, for which she received a sentence of periodic detention. She blamed those offences on her partner of the time. She is gainfully employed and is in a stable relationship.

118. In Mr Lee’s case, he has a conviction for attempting to obtain possession of an imported prohibited drug for which he received a sentence of 6 years imprisonment with a non-parole period of 3 years and 6 months in 2001. His present circumstances probably indicate good prospects of rehabilitation and a low risk of reoffending.

Aggravating factors

119. The dealing with identification documents offences were part of a planned or organised criminal activity: section 21A(2)(n) Crimes (Sentencing Procedure) Act 1999.

120. The offences were committed for financial gain: section 21A(2)(o) Crimes (Sentencing Procedure) Act 1999.

Mitigating factors

121. Mr Mohammed has no prior convictions and was a person of good character: section 21A(3)(e)-(f) Crimes (Sentencing Procedure) Act 1999. Good character is of less weight in offences that are repeated and committed over an extended period: R v Phelan (1993) 66 A Crim R 446. Whilst Mr Mohammed was of good character at the time of the first offences, he ceased to be so later in the period: R v Houghton [2000] NSWCCA 62 at [18]

122. Mr Yeoh has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr Yeoh has established his own painting business in a short space of time. The business has future contracts and employs a number of people. I infer that Mr Yeoh is now financially secure. Mr Yeoh in his evidence demonstrated insight into his offending behaviour and he is unlikely to reoffend.

123. Ms Zhang has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Ms Zhang has always been gainfully employed and she has a stable home and relationship. She frankly admitted that she participated for financial reward that was a relatively small amount. Ms Zhang in her evidence accepted responsibility for her actions.

124. Mr Lee has good prospects of rehabilitation: section 21A(3)(h) Crimes (Sentencing Procedure) Act 1999. Mr Lee now understands that he has placed the welfare of his son in jeopardy by committing criminal offences and by associating with criminals. He has taken positive steps to improve his financial position that was the reason that he became involved in the offences.

121. Mr Yeoh has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Yeoh in his affidavit accepted responsibility for his actions and expressed remorse. I am satisfied that he has expressed genuine contrition and remorse.

122. Ms Zhang has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Ms Zhang in her evidence accepted responsibility for her actions and expressed remorse. I am satisfied that she Has expressed genuine contrition and remorse.

123. Mr Lee has demonstrated remorse: section 21A(3)(i) Crimes (Sentencing Procedure) Act 1999. Mr Lee in his dealings with the authors of the various reports and his referees has accepted responsibility for his actions and expressed remorse to them. I am satisfied that he has expressed genuine contrition and remorse.

124. The offenders entered pleas of guilty: sections 21A(3)(k) and 22 Crimes (Sentencing Procedure) Act 1999. They are entitled to a discount on penalty that reflects the utilitarian value of that plea. The primary consideration in determining where in the range particular case should fall is the timing of the plea, so that the earlier the plea the greater the discount: R v Thomson & Houlton (2000) 49 NSWLR 383 and R v Borkowski (2009) 195 A Crim R 1 at [32]. The plea also indicates remorse: Borkowski at [32].

125. Mr Yeoh sought to enter into plea negotiations about 4 weeks prior to the date listed for trial. Mr Mohammed and Ms Zhang entered into plea negotiations about 1 week before trial. Mr Lee had indicated that he wished to plead guilty about 2 weeks before trial. The Crown conceded that the pleas of guilty saved a long and complex trial. It was also conceded that the final indictment was in a different form to the charges faced in the Local Court, although the offences were still the same. It was suggested that I should differentiate between the offenders based on the date of their approach to the Crown to enter plea negotiations, however the pleas were late ones and the amount of time between the relevant approaches is insignificant. The appropriate discount for each offender is 10%.

126. … [subject to a non-publication order].

127. … [subject to a non-publication order].

128. The appropriate section 23 discount for Mr Lee is 15%, all of which is allocated to the past, giving him a combined discount of 25%.

Parity

133. I have taken into account the sentence imposed on Mr Cao. There are good reasons for departing from parity in this sentencing exercise to reflect the different roles of each offender, the extent of their participation, their reward and their relative criminal histories. Further, maintaining parity is more complicated in this sentencing exercise because the present offenders have been charged using a different structure and because I imposed an aggregate sentence on Mr Cao.

Hardship to Mr Lee’s son

134. In relation to the hardship to be suffered by Mr Lee’s son, I have taken into consideration that his mother suffered from a severe mental illness and that Mr Lee became his sole carer as a result. XXX then suffered developmental issues and developed an anxiety disorder. As a result he has required additional care from his father. In 2016, XXX’s plight was worsened when he was a victim of the home invasion and watched his father be attacked and experienced threats to his own safety. The evidence is that XXX’s anxiety related condition is expected to worsen and that he may be at risk of depression or exploitation in foster care.

135. The general principle is that hardship to a family member is the natural consequence of imposing a term of imprisonment and is not a mitigating consideration unless the hardship is “wholly”, “highly” or “truly” exceptional: Hoskins v R [2016] NSWCCA 157 at [63].

136. If the Court is so satisfied it can suspend the sentence or impose term of imprisonment that does not involve immediate incarceration, shorten the length of the sentence or reduce the non-parole period: Dipangkear v R [2010] NSWCCA 156 at [34].

137. In my view the hardship to XXX is highly exceptional in this case. However, against that I must balance the need for the sentence imposed to reflect the purposes of sentencing. There is a need for general deterrence, retribution, denunciation and a sentence of appropriate severity.

138. In all of the circumstances, I will significantly mitigate the sentence I would have imposed and reflect the hardship in a finding of special circumstances.

No alternative to imprisonment

139. I have considered section 5 Crimes (Sentencing Procedure) Act 1999 and I am satisfied in relation to each offender that having considered all possible alternatives that no penalty other than imprisonment is appropriate.

Sentence – Mr Yeoh

140. Mr Yeoh is convicted.

141. I am satisfied that the appropriate term of imprisonment is one of no more than 2 years.

142. Mr Yeoh is referred for assessment as to his suitability for an intensive corrections order as a means of serving the sentence.

143. Mr Yeoh is directed to report in person to the Hurstville Community Corrections Office on or before 4.00pm on Friday 29 June 2018 and at such other times as directed for the purpose of preparing an ICO Assessment Report.

144. Mr Yeoh’s sentence is adjourned part heard before me to Friday 24 August 2018 at 10.00am.

Sentence – Mr Mohammed

145. Mr Mohammed is convicted.

146. I make a finding of special circumstances. This is the offender’s first time in custody and he is isolated from his family. He will find his time in custody more difficult and will benefit from a longer period on parole.

147. In relation to the section 93T offence the offender is sentenced to a fixed term of seven months imprisonment to date from 21 March 2018 and expire on 20 October 2018.

148. In relation to the section 192J offence and taking into account the offence on the Form 1, the offender is sentenced to a term of imprisonment consisting of a minimum term of 2 years to date from 21 June 2018 and expire on 20 June 2020 and an additional term of 2 years to expire on 20 June 2022.

149. The offender will be eligible to be released on parole on 20 June 2020.

Sentence – Ms Zhang

150. Ms Zhang is convicted.

151. I make a finding of special circumstances. This is the offender’s first time in custody and she has good prospects of rehabilitation. She will benefit from a longer period on parole.

152. In relation to the section 93T offence the offender is sentenced to a fixed term of seven months imprisonment to date from 28 June 2018 and expire on 27 January 2019.

153. In relation to the section 192J offence the offender is sentenced to a term of imprisonment consisting of a minimum term of 15 months to date from 29 September 2018 and expire on 27 December 2019 and an additional term of 15 months to expire on 27 March 2021.

154. The offender will be eligible to be released on parole on 28 December 2019.

Sentence – Mr Lee

155. Mr Lee is convicted.

156. This is an appropriate matter in which to impose an aggregate sentence pursuant to section 53A Crimes (Sentencing Procedure) Act 1999.

157. The sentences, after allowing for the combined discount, that I would have imposed if separate sentences were imposed are:

Section 256 offence                                   3 years

Section 192J offence (33 persons) 2 years

Section 192J offence (26 persons) 2 years

Section 93T offence 6 months

158. I find that there are special circumstances. The offender suffers from adjustment disorder and will be separated from his son who has special needs and the amount of time for which they are separated should be minimised to the fullest extent possible.

159. I impose an aggregate term of imprisonment of 4 years with a non-parole period of 18 months.

160. The sentence is to date from 28 June 2018. The non-parole period will expire on 27 December 2019 and the head sentence will expire on 27 June 2022.

161. The offender will be eligible to be released on parole on 27 December 2019.

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Amendments

20 November 2019 - Catchwords added

Decision last updated: 20 November 2019