Rasel v R

[2022] NSWCCA 239

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Rasel v R [2022] NSWCCA 239

Hearing dates:

19 September 2022

Date of orders:

18 November 2022

Decision date:

18 November 2022

Before:

Bell CJ at [1];
Price J at [51];
Lonergan J at [52]

Decision:

1.   Grant leave to appeal.

2.   Appeal dismissed.

Legislation Cited:

Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(p), 16BA

Criminal Appeal Act 1912 (NSW) s 6(3)

Criminal Code Act 1995 (Cth) ss 11.1(1), 134.2(1), 372.1(1)

Anti-Money Laundering (Counter-Terrorism) Financing Act 2006 (Cth) s 137

Crimes (Sentencing Procedure Act) 1999 (NSW) ss 9 (as in force prior to 24 September 2018), 68(2)

Cases Cited:

Director of Public Prosecutions (DPP) (Cth) v Vina Money Transfer Pty Ltd [2022] FCA 665

Kaveh v R [2017] NSWCCA 52

Kentwell v R (2014) 252 CLR 601; [2014] HCA 37

R v Girard [2004] NSWCCA 170

R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369

Rodgerson v R [No 2] [2022] VSCA 154

Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578

Category:

Principal judgment

Parties:

Faisal Hasan Rasel (Applicant)
The Crown (Respondent)

Representation:

Counsel:

T Woods (Applicant)
R Ranken (Respondent)

Solicitors:

MacDougall and Hydes Lawyers (Applicant)
Office of the Director of Public Prosecutions (Cth) (Respondent)

File Number(s):

2020/00037650

Publication restriction:

N/A

 Decision under appeal 

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 November 2021

Before:

Woodburne SC DCJ

File Number(s):

2020/00037650

HEADNOTE

[This headnote is not to be read as part of the judgment]

Section 16A(2)(p) of the Crimes Act 1914 (Cth) requires a judge sentencing for a federal offence to take into account, where relevant and known to the Court, the probable effect of a sentence or order on the offender’s family or dependants. In Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 (Totaan), handed down in April 2022, this Court ruled that a series of decisions of Australian intermediate appellate courts were clearly wrong insofar as they had construed s 16A(2)(p) to require an offender to establish “exceptional hardship” before the effect of a sentence on the offender’s family or dependants could be taken into account.

On 16 November 2021, before Totaan was decided, Mr Rasel (the Applicant) was sentenced in the District Court to a term of 4 years’ imprisonment, with a non-parole period of 2 years and 2 months, for five offences involving both defrauding and attempting to defraud the Commonwealth. Pursuant to s 16BA of the Crimes Act, the sentencing judge also took into account 20 related offences which were admitted by the Applicant. The offending broadly related to a fraudulent taxation scheme by which the Applicant used his position as a payroll officer to access and record the identification information of employees at several businesses, produced false identification documents, and illegitimately obtained income tax refunds by lodging false tax returns on behalf of others.

In proceedings on sentence, the Applicant sought to rely on the hardship which would be caused to his wife, his son and other members of his family if he were sentenced to a term of full-time imprisonment. In this context, he relied upon evidence that his parents and siblings in Bangladesh would suffer hardship if he were imprisoned, as he had previously provided considerable financial support to them. Consistent with the state of the law pre-dating Totaan, the sentencing judge did not take this evidence into account for the purposes of s 16A(2)(p), finding that it did not support a finding of exceptional hardship, although her Honour did take it into account as part of the Applicant’s subjective case.

On appeal, the Crown accepted that, in light of Totaan, the sentence imposed by the primary judge was tainted by legal error. As a consequence, it was common ground that leave to appeal should be granted, the appeal upheld, the sentence quashed and the Applicant resentenced, unless this Court were of the opinion that no lesser sentence is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3).

In submissions on resentence, the Applicant relied upon further evidence of the effect of his incarceration upon members of his family, as well as evidence of the additional hardship he had experienced in custody as a result of the COVID-19 pandemic. In light of these considerations, counsel for the Applicant submitted that it would be appropriate to resentence the Applicant by imposing an intensive correction order.

The court held (Bell CJ, Price and Lonergan JJ agreeing), granting leave to appeal but dismissing the appeal:

1. As was conceded by the Crown, the sentencing judge’s treatment of hardship to members of the Applicant’s family revealed an erroneous approach to the application of s 16A(2)(p) of the Crimes Act: [23] (Bell CJ); [51] (Price J); [52] (Lonergan J).

2. The impact of the Applicant’s offending on the persons whose identities were stolen cannot be underestimated. Although reparation was made to the Commonwealth, there will not only have been real personal inconvenience to those whose tax refunds were fraudulently redirected, but also a real sense of violation as their personal financial affairs were being interfered with without knowledge or authority: [38] (Bell CJ); [51] (Price J); [52] (Lonergan J).

3. Evidence concerning the cessation of financial support to members of the Applicant’s family must be viewed in light of the fact that, to the extent that the financial support was derived from his ill-gotten gains and generated an expectation of ongoing assistance, that was a source of assistance to which his family was not entitled in the first place. Nevertheless, the Applicant’s incarceration has had a very serious impact on both his wife and child: [41]–[43] (Bell CJ); [51] (Price J); [52] (Lonergan J).

4. Having regard to, among other things, the serious nature of the offending, the Applicant’s personal circumstances, the need for specific and general deterrence, the effect of a custodial sentence on the Applicant’s family members, and the hardship suffered by the Applicant in custody, no lesser sentence is appropriate in the circumstances than that imposed by the primary judge: [48] (Bell CJ); [51] (Price J); [52] (Lonergan J).

5. As a consequence of the above finding, this is not a case where an intensive correction order could be imposed, by reason of s 68(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW): [49] (Bell CJ); [51] (Price J); [52] (Lonergan J).

JUDGMENT

1. In Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 (Totaan), this Court ruled that a series of decisions of this and other intermediate appellate courts were clearly wrong insofar as they had construed s 16A(2)(p) of the Crimes Act 1914 (Cth) as requiring an offender to establish “exceptional hardship” before the effect of a sentence on the offender’s family or dependants could be taken into account in sentencing.

2. Section 16A(2)(p) relevantly provides that, when sentencing for a federal offence, a sentencing judge must take into account “the probable effect that any sentence or order under consideration would have on any of the person's family or dependants”. In Totaan, this Court held that that subsection should be given effect according to its terms, and that there was no basis, textual or otherwise, for imposing a requirement that hardship must be exceptional before it could be taken into account. Totaan has since been applied in Director of Public Prosecutions (DPP) (Cth) v Vina Money Transfer Pty Ltd [2022] FCA 665 at [179]; and Rodgerson v R [No 2] [2022] VSCA 154 at [66]-[73].

3. In the current case, Mr Rasel (the Applicant) pleaded guilty to a series of five federal offences involving both defrauding and attempting to defraud the Commonwealth. He was sentenced by her Honour Woodburne SC DCJ (the sentencing judge) on 16 November 2021, before Totaan was decided. In sentencing the Applicant, her Honour also took into account 20 related offences in respect of which the Applicant admitted his guilt, pursuant to s 16BA of the Crimes Act (the s 16BA offences).

4. The sentencing judge imposed an aggregate sentence of 4 years imprisonment, commencing on 6 August 2021, with a single non-parole period of 2 years and 2 months. Accordingly, the Applicant will become eligible for parole on 5 October 2023. The aggregate sentence was imposed after allowing a 25% discount for an early guilty plea.

5. The Applicant sought to rely on hardship to his family within the meaning of s 16A(2)(p) as a matter to be taken into account in his sentencing, and supported this submission with evidence to which I shall refer. Consistent with the state of the law pre-dating Totaan, the sentencing judge held that this evidence did not support a finding of exceptional hardship and thus could not be taken into account for the purposes of s 16A(2)(p). It should be noted, however, that her Honour did take this evidence into account as part of the Applicant’s subjective case, an approach consistent with R v Girard [2004] NSWCCA 170 at [21]; R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369 at [27] and Kaveh v R [2017] NSWCCA 52 at [40].

6. The Crown accepts that, in light of Totaan, the sentence imposed was tainted by legal error, with the consequence that leave to appeal should be granted. The appeal must be upheld, the sentence quashed and the Applicant resentenced in accordance with Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 unless this Court is of the opinion that no lesser sentence is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3).

7. For the purposes of resentencing, the Applicant has filed five affidavits which were read without objection and to which it will be necessary to refer in due course. These were of:

• Mohammad Babul Hasan, the Applicant’s father, sworn on 30 August 2022;

• Rubaya Bintia Hasan, the Applicant’s younger sister, sworn on 30 August 2022;

• Dillshad Ara Sharmin, the Applicant’s wife, sworn on 31 August 2022;

• Phoebe MacDougall, the Applicant’s solicitor, sworn on 1 September 2022; and

• the Applicant himself, sworn on 1 September 2022.

8. It is first necessary to identify the five offences in respect of which the Applicant was charged and then to note the detailed agreed facts that describe the Applicant’s offending.

The charges

9. The five offences in respect of which the Applicant was charged have been referred to as sequences 117 to 121, and were as follows:

1. Sequence 117: between about 2 July 2015 and 4 July 2015, at Homebush West and elsewhere in New South Wales, he did attempt, by deception, to dishonestly obtain a financial advantage from the Commonwealth, namely nine income tax refunds, by causing to be lodged with the Australian Taxation Office nine false income tax returns on behalf of nine natural persons for the year ended 30 June 2015. This offence was committed in contravention of ss 11.1(1) and 134.2(1) of the Criminal Code Act 1995 (Cth).

2. Sequence 118: between about 2 July 2015 and about 28 August 2015, at Homebush West and elsewhere in New South Wales, he did, by deception, dishonestly obtain a financial advantage from the Commonwealth, namely 20 income tax refunds, by causing to be lodged with the Australian Taxation Office 20 false income tax returns on behalf of 20 natural persons for the year ended 30 June 2015. This offence was committed in contravention of s 134.2(1) of the Criminal Code.

3. Sequence 119: between about 5 August 2015 and about 21 August 2015, at Homebush West and elsewhere in New South Wales, he did, by deception, dishonestly obtain a financial advantage from the Commonwealth, namely an income tax refund, by nominating with the Australian Taxation Office false bank account details for Laudy Germanos. This offence was committed in contravention of s 134.2(1) of the Criminal Code.

4. Sequence 120: between about 28 June 2015 and about 30 June 2015, at Homebush West and elsewhere in New South Wales, he did deal in identification information by using the names, dates of birth, tax file numbers and superannuation account numbers associated with 64 natural persons with the intention of pretending to be or passing himself off as those persons for the purposes of facilitating the commission of indictable offences against a law of the Commonwealth. That offence was committed in contravention of s 372.1(1) of the Criminal Code.

5. Sequence 121: on or about 4 July 2015, at Strathfield and elsewhere in New South Wales, he did produce documents, namely a Bangladeshi passport and a New South Wales police photo card issued in the name of Rian Khan, to an employee of the National Australia Bank, a reporting entity, knowing the documents were misleading and that those documents were produced in the course of an identification procedure under the Anti-Money Laundering (Counter-Terrorism) Financing Act 2006 (Cth). The offence was committed in contravention of s 137 of that Act.

10. Sequences 117, 118, 119 and 121 attracted a maximum penalty of 10 years’ imprisonment, while sequence 120 was punishable by up to 5 years’ imprisonment. In relation to the related offences to be taken into account pursuant to s 16BA of the Crimes Act, items 1-19 carried a maximum penalty of 3 years’ imprisonment, and item 20 a maximum of two years.

Agreed facts

11. The Applicant was sentenced on the basis of an agreed statement of facts, which was reproduced in the sentencing judgment. Omitting footnotes, the agreed statement of facts was as follows:

“1    This matter relates to an Income Tax Return lodgement scheme executed by a payroll officer, with an accounting degree, to fraudulently two obtain refunds of taxation from the Australian Taxation Office (ATO). The scheme was facilitated by the offender's access to the identification information of individuals who were or had been, employed at businesses where the offender worked as a payroll officer.

2    Between about 2 July 2015 and 21 August 2015, Faisal Hasan RASEL (the Offender) caused 29 false Income Tax Returns (Returns), for the year ending 30 June 2015, to be lodged on behalf of 28 different persons who had variously been employed by Lindt & Sprungli (Lindt), Rentokil Initial (Rentokil) and the Parramatta Mission, a not for profit organisation administered by the Uniting Church of Australia (Parramatta Mission) [sequences 117 & 118].

3    A short explanation of the income taxation regime is at Annexure A. [not reproduced]

4    As a step precedent to the false Returns lodged in furtherance of the scheme, the Offender caused myGov accounts to be falsely created on behalf of at least 113 different persons. MyGov is an online platform through which individuals can interact with Australian government agencies, such as the ATO, Centrelink and Medicare [sequences 117 - 120 and items 1 - 19]. The Offender caused at least 94 of these myGov accounts to be falsely authenticated with the ATO, using the relevant taxpayers' identification information [sequences 117-120].

5    To do so, the Offender fraudulently used particular taxation and identification information that he found in different employee records maintained by Lindt, Rentokil and Parramatta Mission, copies of which were subsequently discovered variously on two laptop computers seized from the Offender's residential premises, including a spreadsheet that contained the Tax File Numbers ("TFNs") of 7060 different people who were, or had been, employed by Rentokil or its related businesses [Item 20].

6    As a result of the 29 false lodgements, the Offender fraudulently claimed refunds of taxation, totalling $182,172.06.

7    Of that sum, the ATO paid 20 refunds of taxation, totalling $63,284.48, to 16 different bank accounts [sequence 118]. A table summarising the details of these 20 false lodgements is at Annexure B.

8    The other nine false lodgements, claiming refunds of taxation totalling $117,824.63, were stopped by the ATO before payment was made to the nominated bank account [sequence 117]. A table summarising the details of these nine false lodgements is at Annexure C.

9    In one instance, the Offender diverted a pending refund payment of $1,256.65 to a bank account he controlled, after the taxpayer's identity was falsely authenticated using myGov [sequence 119].

10    The refunds obtained by the Offender were withdrawn in cash, using Automated Teller Machines, from accounts held in the name of Rian KHAN, a false identity. After a few days, the cash was deposited into a personal bank account opened in the name of the Offender.

11    A Bangladeshi Passport and NSW Photo Card in the name of KHAN, depicting photos of the Offender, were located at the Offender's residential premises. It is alleged that the Offender used both those documents to open accounts with various financial institutions, including with the National Australia Bank on 4 July 2015 [sequence 121]. The Offender also controlled bank accounts in the names of two other persons into which refunds of taxation were paid and transferred.

12    The total loss to the Commonwealth of Australia arising from these offences is $64,541.13 [sequences 118 & 119] …

THE ACCUSED

13    The Offender became an Australian Citizen in December 2013, having been born in Bangladesh. In about 2006, the Offender travelled to Australia to study accountancy.

14    The Offender was employed by Lindt, as a payroll officer, between late 2011 and early 2014. During the offending period, the Offender began working as a payroll officer at the Parramatta Mission and Rentokil.

15    The Offender was given access to all three employers' systems.

MODUS OPERANDI

16    Two different avenues were used to lodge false Returns on line, both of which were designed by the ATO for individual taxpayers who choose to prepare and lodge their Return without the assistance of a tax agent or accountant.

17    Twenty four (24) of the 29 false Returns were lodged using e-tax, which was a software program that could be downloaded from the ATO's website each tax year, up until 2015. The remaining five false lodgements were made using myTax, which is wholly on line platform.

MyGov

18    MyTax was designed to replace e-tax, as it formed part of the functionality of the Australian government's myGov platform, which was released in 2013. To facilitate the transition to myTax in 2016, before allowing a taxpayer to lodge a 2015 Return using that year's e-tax software, the ATO required each taxpayer to:

a.   create a myGov account; and

b.   authenticate that account with the ATO, by verifying their identity using specific information.

19    To create each myGov account in furtherance of the scheme, a unique 'Hotmail' email address was created for each taxpayer, which was then used in the registration process . At the conclusion of each registration, a unique alpha-numeric username, for which a password was specified.

20    At least 113 myGov accounts were registered in furtherance of the scheme. Of those 113 accounts, the Offender caused at least 94 to be falsely authenticated with the ATO. The Offender did so by specifying each taxpayer's full name, date of birth, tax file number, financial information found on a PAVG Payment Summary (formerly known as a Group Certificate) generated in the last two years, and either the account number of a:

a.   superannuation account held by the taxpayer; or

b.   bank account held by the taxpayer.

Possession and Use of Identification Information - sequences 117 - 120 & items 1 – 20

21    The Offender came into possession of this particular identification information by virtue of his employment at Lindt, Parramatta Mission and Rentokil, which he had saved to two laptop 108 19 computers that were ultimately seized from his residential premises. A subsequent examination of one of the laptops located a folder named flyend2015 11 (a reference to the financial year ended 30 June 2015) in which the Offender had:

a.   saved a document named "13.pdf", containing 492 PAYG Payment Summaries, formerly known as Group Certificates, of Lindt employees, for the year ended 30 June 2013 (the Lindt Payment Summaries);

b.   saved a spreadsheet named "Employees Super Details.xlsx", containing the full name, date of birth, home address, phone numbers, superannuation fund name and superannuation account number of more than 350 Lindt employees (the Lindt Superannuation Information);

c.   created a sub-folder named "Mission 11, a reference to the Parramatta Mission; and d. created a sub-folder named "Rento 11, a reference to Rentokil.

22    In the sub-folder named "Mission", the Offender had saved:

a.   two documents named "14-15 emailed.pdf" and f/14-15 printed.pdf", containing 656 PAYG Payment Summaries of Parramatta Missions employees, for the year ended 30 June 2015;

b.   a spreadsheet named "Copy of Super Details.xlsx11, containing the full name, date of birth, home address, superannuation fund name and superannuation account number of more than 1500 Parramatta Mission employees; and

c.   a spreadsheet named "Copy of Bank details.xlsx11, containing the full name, date of birth, and bank account details of more than 400 Parramatta Mission employees.

23    In the sub-folder named "Rento 11, the Offender had saved:

a.   a document named ((Payment Summary Production - Term Emp 2014-15.pdf", containing 587 PAYG Payment Summaries of Rentokil employees, for the year ended 30 June 2015; and

b.   a spreadsheet named "Super including termination.xlsx 11, containing the full name, date of birth, tax file number, superannuation fund name and superannuation account number of at least 7060 Rentokil employees.

24    These spreadsheets were used to maintain or create a record of the 'Hotmail' email addresses and alpha-numeric codes that related to each of the myGov accounts created in furtherance of the scheme. The spreadsheets were colour-coded with particular rows of these spreadsheets marked with green, red or blue to indicate whether the fraudulent claim to a refund was paid, stopped or pending, respectively.

Lindt

25    As the Lindt Payment Summaries in the Offender's possession related to the year ended 30 June 2013, the information therein could not be used to verify each persons' identity after 30 June 2015 - it being more than two years old. Also, the Offender had no way of determining which taxpayers would be an appropriate vehicle for the fraud, as current Payment Summaries reveal how much taxation had been withheld from each persons' salary by their employer over the 2015 financial year 1•

26    It was in this context that, between 28 June 2015 and 30 June 2015, the Lindt Payment Summaries and Lindt Superannuation Information were used to indiscriminately authenticate as many myGov accounts with the ATO as possible. Having falsely authenticated at least 78 myGov accounts over this three day period, the Offender used 13 of the accounts to cause false Returns to be lodged, between 2 July 2015 and 7 July 2015.

27    All but one of the first 10 false Returns lodged between 2 July 2015 and 4 July 2015 were stopped by the ATO due to the high refund amounts fraudulently claimed, which ranged between $8,871.85 and $23,287.20, and averaged $13,091.63 [sequence 117]. From 5 July 2015 onwards, far more modest false claims were made, the average being $3,217.37, all of which were paid [sequence 118].

Parramatta Mission & Rentokil

28    On 14 July 2015, the Offender caused false Returns to be lodged on behalf of taxpayers who had been employed by the Parramatta Mission, where he had begun working only eight days earlier. Similarly, the Offender caused a false Return to be lodged on behalf of a taxpayer who had been employed by Rentokil, three days after commencing employment there on 17 August 2015.

29    As the Offender had the benefit of PAYG Payment Summaries issued by Parramatta Mission and Rentokil for the 2015 financial year ended a fortnight earlier, the Offender had no need to create and authenticate myGov accounts en masse. Rather, the financial information in the PAYG Payment Summaries could be used by the Offender to identify particular taxpayers who were likely to receive a refund, and created and authenticated myGov accounts in these discrete instances.

Preparation and Lodgement of False Returns

30    Over the course of each tax year, the ATO collects information about each taxpayers' financial affairs from their employer(s), banks, health funds and other government agencies.

31    To assist taxpayers to accurately prepare their Returns, both e-tax and myTax include a functionality that uses the information collected by the ATO to automatically populate particular fields in a taxpayer's Return, such as their salary or wages income, the amounts of tax withheld by their employer(s), interest amounts paid by their bank, the details of any private health insurance policy, social security payments, as well as their date of birth, occupation, residential address and bank account. This functionality is known as 'pre-filling' a Return.

32    The Offender used this 'pre-filling' functionality to partially complete the Returns that he caused to be lodged in furtherance of the scheme. After 'pre-filling' each Return, false claims to deductions were entered, which had the effect of increasing the refund amount that each Return ultimately claimed. The deductions were in combinations of the following five categories:

a.   car expenses;

b.   clothing expenses;

c.   other work-related expenses;

d.   gifts and donations; and

e.   costs incurred in preparing the Return.

33    In the course of completing each Return, particular identity details of each taxpayer were amended, including their:

a.   residential address, to ensure that the resulting correspondence from the ATO, being a Notice of Assessment, would not reach the taxpayer and alert them to the fraudulent lodgement made in their name; and

b.   bank account details, to ensure that the resulting refund would be paid to an account controlled by the Accused.

Re-Direction of a Refund Payment - sequence 119

34    Following the authentication of a taxpayer's myGov account with the ATO, the user of that myGov account is able to 'update' that taxpayer's personal details, view their past Return and taxation documents, and track the progress of any pending refund payments.

35    On 5 August 2015, the Offender used the identification information he held for Laudy Germanos, an employee of the Parramatta Mission, to falsely authenticate a myGov account in her name, with the ATO.

36    Before the Offender had taken the opportunity of fraudulently lodging a Return in Germanos' name, her brother, a registered tax agent, lodged Germanos' legitimate 2015 Return. The following day, the Offender accessed the myGov account that he had falsely authenticated and observed that a refund of $1,256.55, directed to Germanos' legitimate bank account, was now pending.

37   The Offender fraudulently re-directed the refund payment to a bank account that he controlled, by 'updating' the bank account details that the ATO held in respect of Germanos.

THE REFUNDS OF TAXATION

38    In the course of the offending, refund payments were fraudulently directed to 19 different bank accounts controlled by the Offender, opened variously in the names of Rian Khan, Arati Debnath and Melissa Gunn, at Westpac Bank, St George Bank, the Commonwealth Bank of Australia (CBA) and the National Australia Bank (NAB).

39    Two additional CBA accounts, both opened in the name of Rian Khan, received transfers from the 14 accounts into which refunds were actually paid.

Withdrawals - sequences 118 -119

40    Of these 21 accounts related to the offending, the Offender used at least five accounts to withdraw the fraudulently obtained refunds from Automated Teller Machines, predominately located in Strathfield. Four of these five accounts were held in the name of Rian Khan.

41    In 15 instances, the Offender transferred the fraudulently obtained refunds from the account into which it was paid by the ATO, into one of the five accounts which the Offender used to make withdrawals. In at least eight of these 15 instances, the funds were transferred more than once before reaching the account from which they were withdrawn. Only six fraudulently obtained refunds were withdrawn from the same account into which they were paid.

42    Typically, a few days after making the withdrawals from Automated Teller Machines, the cash was deposited into a personal bank account opened in the name of the Offender.

Melissa Gunn Bank Accounts

43    Of the 21 bank accounts, the Offender controlled four CBA accounts in the name of Gunn, the first having been opened by him on 14 July 2015, using the details of Gunn’s Australian Passport, a copy of which she had provided to her employer, Parramatta Mission. Records maintained by the CBA in relation to Gunn’s accounts reveal the Offender's mobile telephone number and residential address were specified.

Arati Debnath Bank Accounts

44    The Offender also controlled three CBA accounts in the name of Debnath each of which were opened between 6 August 2015 and 15 August 2015, using the details of Debnath’s Australian Passport. Records maintained by the CBA in relation to Debnath's accounts reveal the Offender's mobile telephone number and the following email address: [email protected], were specified.

THE RIAN KHAN IDENTITY

45    The remaining 14 of the 21 bank accounts were opened by the Offender in the name of Rian Khan.

46    Between September 2014 and May 2015, the Offender travelled to Bangladesh. Whilst there, the Accused obtained an authentic Bangladeshi passport, issued in Dhaka, in the name of "Rian Khan", on 31 March 2015, which he brought back to Australia (the Passport). The photograph shown in the Passport depicts the Accused. The Passport has not been stamped or marked, nor does it contain any visa.

47    The Accused began using the Passport to open bank accounts with St George Bank and the CBA, from about 29 June 2015.

48    On the morning of 4 July 2015, the Accused attended the Services NSW (formerly, the RTA or RMS) office at Silverwater, at which time he was issued a NSW Photo Card in the name of Rian Khan, bearing a photograph in which he was depicted (the Photocard). In support of the application, the Accused produced the Passport and a CBA bank account statement in respect of an account opened in the name of Khan.

49    Later the same day, the Accused attended the Strathfield branch of the National Australia Bank, where he opened three bank accounts in the name of Khan, by producing the Photo Card and the Passport in the course of the identity verification process [sequence 121].

50    Fraudulent refunds were directed to those NAB accounts from about 2:00 pm on 4 July 2015.

51    In the course of a search warrant executed at the Accused's residential premises, representatives of the ATO seized:

a.   the Passport and the Photo Card in the same brown envelope;

b.   a NAB deposit stub, dated 4 July 2015, bearing the stamp of the Strathfield branch, which shows the deposit of $2, $2 and $6 into the three Rian KHAN accounts opened on 4 July 2015;

c.   a receipt from the Silverwater registry of Services NSW, dated 4 July 2015, in respect of the purchase of the NSW Photo Card; and

d.   false documents, purportedly issued by the Australian High Commission in Dhaka on behalf of the Department of Immigration and Border Protection, purportedly showing the grant of an Australian Partner Visa (subclass 309) to Rian Khan on 13 April 2015.”

12. It should be noted that by the time the Applicant was sentenced, he had made full reparation for the benefit of $64,541.13 which he had obtained from his offending.

The undisputed findings of the sentencing judge

13. In supplementary written submissions, the Applicant indicated that he did not dispute the findings of the sentencing judge, save for the following:   

1. findings with respect to hardship to the Applicant’s family;

2. the implicit finding that an intensive correction order was not appropriate or available in the circumstances of the case; and

3. the sentencing judge’s statement that she was “unable to find that [the Applicant] is unlikely to reoffend”.

14. In relation to the objective seriousness of the offending, the sentencing judge considered that “each offence is properly to be assessed as a serious example of offending in contravention of the section.” In this context, her Honour made the following findings, which are not disputed by the Applicant:

1. the offending was systematic, sophisticated, and involved extensive planning and premeditation;

2. the period of offending was a relatively short one, at least compared to some other cases of similar offending;

3. although there was a breach of trust to a degree, it was not to a significant degree, as would be the case if the offender were a tax agent;

4. the offences were committed out of greed, although they were informed by the Applicant’s perception of his need or wish to provide for his family;

5. although the Applicant “has felt some obligation and/or desire to assist his family” and “sending money overseas [to family members in Bangladesh] is a source of financial pressure”, the offences were committed not out of financial need, but out of a deliberate choice to put the welfare of the Applicant, his wife and his family above the Australian community;

6. while taxation fraud offences generally have harmful consequences for the community at large, these consequences were ameliorated in this case by the fact that reparation had been made;

7. the offending adversely impacted each of the taxpayers whose identities were used by complicating their dealings with the ATO, and contributed to a loss of confidence in the efficacy and integrity of the taxation system; and

8. there was additional criminality involved in the s 16BA offences, particularly in respect of item 20, which involved maintaining a record of the tax file numbers of 7,060 other persons.

15. The sentencing judge’s findings with respect to the Applicant’s personal circumstances can be summarised as follows. The Applicant was 29 years of age at the time of the offending, and was 35 years old at the time of sentence (he is now 36 years old). He was born in Bangladesh in 1986 as the eldest of five children, and had a stable family upbringing. He travelled to Australia in 2004 to undertake tertiary studies. His parents and two younger siblings continue to live in Bangladesh, while one brother is studying in Melbourne and a sister is studying in Sweden. He has one prior conviction for an offence of stealing property as a clerk/servant, committed in 2005. For that offence, he was sentenced to a good behaviour bond of 12 months.

16. After graduating with a Bachelor of Business/Accounting in 2009, the Applicant maintained steady employment as a payroll officer. After graduating, he maintained employment as a payroll officer, including at Lindt between 2011 and 2014. In 2013 he became an Australian citizen, and in 2014 he married his wife, Ms Sharmin, in Bangladesh. They have a son who was four years old at the time of sentence, and is now five years old. At the time of sentence, Mr Rasel maintained employment as a Payroll Project Analyst at Wesfarmers/Blackwoods.

17. The Applicant had no pre-existing mental health conditions at the time of the offending. There was evidence that he was subject to stress at the time of the offending, including financial stress and concern for his grandmother who had been diagnosed with ovarian cancer. However, there was no suggestion that there was a causal link between that evidence and the offending.

18. Since the offending, the Applicant reported experiencing symptoms of anxiety and depression. Two psychologists expressed the opinion that the Applicant met the diagnostic criteria for moderate/severe major depressive disorder with anxious distress and mood-congruent psychotic features. The sentencing judge did not accept that the Applicant’s symptoms of anxiety and depression were due to feelings of overwhelming guilt for the offending, but nonetheless considered that his mental condition would make imprisonment more onerous, and that it called for some moderation of the need for general deterrence.

19. Her Honour made the following further findings about the Applicant’s subjective case which were relied upon by the Applicant before this Court:

1. that he had shown contrition for the offence by making full reparation for the loss resulting from the offence;

2. that he had expressed remorse to a psychologist and to his family; and

3. that he had good prospects of rehabilitation.

20. As to the impact of a custodial sentence on the Applicant’s family and dependants, in the context of s 16A(2)(p) of the Crimes Act, the sentencing judge said the following with respect to the Applicant’s wife and son:

“Clearly any sentence of imprisonment will have an adverse impact on Mr Rasel’s wife and child because they will be deprived of the practical, financial and other support he would otherwise provide. Mr Rasel’s wife Ms Sharm[i]n has been unemployed since coming to Australia. She predominantly cares for their young child who is four years of age.

…

Ms Sharmin has health conditions. She has been diagnosed with Type 2 diabetes, hypertension and anaemia and is engaged with her medical treatment team with respect to diagnostic management of her undiagnosed symptoms. She has had three surgeries since 2017. On 31 May 2021 she was referred for further liver enzyme tests to ascertain any abnormality.

The Court was informed in July 2021 that Ms Sharmin only holds a learner driver licence. Ms Sharmin said the nearest bus stop is two kilometres away from their home in Marsden Park. She relies on the offender for transporting her to shops, to the medical centre, to medical appointments and the like. Ms Sharmin said that with a small child she would really struggle without the support of her husband.

Should Mr Rasel be incarcerated Ms Sharmin will have difficulty in being able to make the repayments on the two outstanding loans that were taken out by Mr Rasel to make the reparation payment. It has also been submitted that Mr Rasel’s incarceration could or is likely to have an impact on the maintenance of the mortgage on their home.”

21. In relation to the effect of a custodial sentence on Applicant’s parents in Bangladesh, the sentencing judge said:

“Mr Rasel’s mother Rawsan Ara Hasan is 56 years of age and has been diagnosed with type 2 diabetes, hypertension and dyslipidaemia for the last seventeen years. She has been suffering from mild anxiety for the last two years. Mr Rasel’s father Md Babul Hasan is 60 years of age and has been diagnosed with bronchial asthma hypertension, type 2 diabetes and dyslipidaemia for the last fifteen years. He has been suffering from mild urticaria. Both parents take medications. Both parents state that their other son living in Melbourne does not maintain contact with them and does not contribute to their living expenses and that they are totally dependent on Mr Rasel as he is the only earning member of the family. Mr Rasel has regularly sent money to Bangladesh to support his parents and younger siblings …

Mr Rasel reported that he is also supporting his other two siblings who are studying at university in Melbourne and Sweden. If he is imprisoned his family will no longer benefit from his financial support. It might be noted that Ms Refat Binte Umme Hasan stated in her letter to the Court that she is studying in Sweden on a full scholarship. She said that sometimes Mr Rasel sends her additional support in Sweden if she needs anything.

Mr Rasel is said to have limited family support in Australia although as mentioned he does have a brother living in Melbourne who he must be in contact with as he is said to support him.”

22. The sentencing judge then concluded:

“I have identified the probable effect that any sentence or order under consideration would have on Mr Rasel’s depend[a]nts and family. In my assessment, exceptional hardship is not established in all the circumstances which I have taken into account. I have nonetheless taken into account the matters raised on his behalf in terms of his subjective circumstances overall.”

23. As was conceded by the Crown, the sentencing judge’s reference to “exceptional hardship” in the above passage of the remarks on sentence reveals an erroneous approach to the application of s 16A(2)(p) of the Crimes Act. Nonetheless, in resentencing the Applicant, this Court must have regard to the factual findings of the sentencing judge concerning the effect of a custodial sentence on the Applicant’s family and dependants.

24. These findings must be supplemented and, in one respect, qualified in that, whereas at the time of his original sentencing, the Applicant’s wife was not working, it would appear that she is currently in casual employment as an administrative assistant. The evidence was silent as to her earnings and her employment is only said to be available until the conclusion of this year.

Other supplementary evidence

25. As I have indicated above at [7], the Applicant filed five supplementary affidavits on the “usual basis”, that is, to be taken into account for the purposes of the resentencing exercise once error has been established.

26. In supplementary written submissions filed on 2 August 2022, the Applicant indicated that the finding sought to be made in reliance upon the supplementary evidence was “that members of the applicant’s family have suffered significant hardship since and as a result of his incarceration in November 2021.”

27. The affidavit of Mohammad Babul Hasan, the Applicant’s father, demonstrates that the Applicant’s family in Bangladesh have experienced hardship by reason of his incarceration. In that affidavit, Mr Hasan says the following:

1. the Applicant was previously the only income earner in the family, and provided financial support to his family in Bangladesh to meet basic needs such as rent, groceries, utility bills, medications and study expenses for his younger siblings;

2. since the Applicant’s incarceration, his father has struggled to meet family expenses, and has had to sell properties to pay off loans;

3. the Applicant’s parents have fallen behind on their rental payments and, after selling personal items to raise funds, only have enough savings for three more months of rent;

4. the Applicant’s father and mother suffer from various health conditions, and are unable to find work;

5. the Applicant’s youngest sister has had to postpone her tertiary studies for an indefinite period as the family is unable to pay her tuition fees, and his youngest brother has may be unable to attend school for years 11 and 12.

28. The affidavit of Rubaya Bintia Hasan, the Applicant’s younger sister, establishes the following matters:

1. since the Applicant’s incarceration, Ms Hasan has had to indefinitely cease her university studies, as her parents are unable to afford her tuition fees without the Applicant’s support;

2. her parents have been unable to afford their usual medications due to the loss of income previously provided by the Applicant;

3. the family has experienced distress because of the loss of financial support from the Applicant.

29. The affidavit of Dillshad Ara Sharmin, the Applicant’s wife, together with its annexures, establishes the following:

1. she suffers from a number of health conditions, including type 2 diabetes, hypertension, iron deficiency anaemia, fatty liver disease and adenomyosis of the uterus;

2. she previously received regular iron transfusions, but is no longer able to attend her appointments as there is nobody to care for their son or drive her to the appointments (Ms Sharmin does not have a drivers licence);

3. she is unable to send their son to his childcare, as it is 12km away from their home;

4. she is experiencing financial hardship, and does not have sufficient funds to purchase daily groceries. Although she was able to freeze mortgage repayments for a period, the repayments recently recommenced, as her bank will not permit her to suspend them any longer;

5. she has experienced symptoms of anxiety and depression since the Applicant’s incarceration (an annexed letter from a treating psychologist indicated that her symptoms were consistent with “adjustment disorder mixed with down mood and anxiety”);

6. their son has been diagnosed with behavioural issues, and will be required to undertake speech, occupational and behavioural therapies to address developmental delays. Although no medical evidence has been provided to substantiate these diagnoses, an annexure contains correspondence from the National Disability Insurance Agency which indicates that an NDIS plan has been approved for their son (but does not appear to identify his condition);

7. their son’s behavioural issues have significantly worsened since the Applicant’s incarceration, and he has begun being physically violent towards Ms Sharmin; and

8. her mental health has been adversely impacted by the difficulties she has experienced maintaining contact with the Applicant while in custody, due to COVID-19 restrictions imposed on inmates and a five-hour round trip commute time to the correctional centre using public transport.

30. In oral argument, counsel for the Applicant also made submissions concerning the additional hardship experienced by the Applicant while incarcerated as a result of the COVID-19 pandemic. In support of this submission, he relied upon the affidavit of the Applicant, sworn on 1 September 2022. That affidavit established, among other things, that the Applicant:

1. was unable to speak to members of his family for the first month of his time in custody, by reason of COVID-19 quarantine requirements and delays in having their contact numbers added to a directory;

2. was unable to have in-person visits with members of his family for the first five months of his time in custody;

3. spent a total of 61 days in isolation while in custody due to COVID-19 outbreaks in correctional centres, during which time he was unable to leave his cell or interact with other inmates;

4. was unable to see a psychologist for over five months after being placed in custody, whereas he had been consulting a psychologist every two weeks to treat his depression and anxiety disorders before being sentenced; and

5. has experienced distress at the knowledge of the hardships experienced by his wife and son during his time in custody.

31. Finally, the affidavit of Phoebe McDougall, the Applicant’s solicitor, largely bears upon the Applicant’s conditions and behaviour in custody. It establishes the following:

1. between December 2021 and February 2022, the Applicant worked in the “internal grounds unit” at Parklea Correctional Centre, where corrective services staff found him to be polite, well-behaved and respectful;

2. from February 2022, after being transferred to the Dawn de Loas Correctional Centre, the Applicant worked in the Technology Workshop, where his supervisor described him as “reliable, diligent and hardworking”;

3. the Applicant has completed a number of training courses while in custody, and attends regular visits with the correctional centre’s Muslim chaplain; and

4. the Applicant has spent considerable time in isolation while in custody due to the COVID-19 pandemic, during which he is unable to contact his family either by phone or in person. He was also unable to give his family prior warning that he would be uncontactable.

32. Counsel for the Applicant made the submission that, in light of the fact that the Applicant has spent a substantial period of time in full-time custody, which has been particularly onerous by reason of the COVID-19 pandemic, it would be appropriate to resentence the Applicant by imposing an intensive correction order.

33. Counsel emphasised that, even if an intensive correction order may not have been an appropriate penalty at the time of the initial sentence in November 2021, this Court must resentence the Applicant having regard to events and circumstances which have occurred since the passing of the sentence by the sentencing judge, including the hardship experienced by him and his family during his incarceration.

Resentencing

34. In approaching the Applicant’s resentencing, s 16A(1) of the Crimes Act requires the imposition of a severity that is appropriate in all of the circumstances, with the factors set out in s 16A(2) to be taken into account as are relevant and known to the Court, in addition to any other matters. Given his early guilty plea, it is appropriate to allow a discount on any sentence imposed. In this regard, I note that in proceedings before the sentencing judge, the Crown did not oppose a sentencing discount of 25%.

35. I agree with the unchallenged finding in the proceedings below that the offending was systematic, sophisticated and involved extensive planning and premeditation. The agreed statement of facts set out above bears testament to this. The sentencing judge was correct in her description of the offending as “opportunistic” and involving the breach of three different positions of trust. Also unchallenged was the sentencing judge’s assessment that each of the offences was properly to be assessed as a serious example of offending in contravention of the Crimes Act.

36. Although in some respects the offending occurred over a relatively short period, the offending did not come to an end as a result of the Applicant’s choice; rather it was the detection of the offending that brought it to an end. Far more extensive fraud was in train with taxation refunds in the sum of $117,824 being stopped by the ATO prior to payment (sequence 117). The Applicant, moreover, maintained a spreadsheet containing the tax file numbers of over 7,000 people headed “super including termination.xls” (item 20) from which the potential extent of his fraudulent conduct may be discerned. This was one of some 20 additional offences which fall to be taken into account pursuant to s 16BA of the Crimes Act.

37. The other 19 cases involved the Applicant possessing identification information associated with some 19 individuals with the intention of using that information to pretend to be or to pass himself off as those individuals for the purposes of facilitating the commission of other offences. Again, these cast harsh light on the extent of the Applicant’s offending, and its potential reach. There is no doubt that the offences for which the Applicant was charged formed part of a course of conduct consisting of a series of criminal acts (s 16A(2)(c) of the Crimes Act).

38. The impact of the offences on the persons whose identities were stolen cannot be underestimated. Although the moneys defrauded were repaid to the Commonwealth, there will not only have been real personal inconvenience to those whose tax refunds were fraudulently redirected as a result of the offending but a real sense of violation as their personal financial affairs were being interfered with without knowledge or authority. The violation extended to information concerning individual’s private health insurance, social security payments, residential addresses and banking details.

39. The offences also involved a violation of the trust that had been placed in the Applicant by his various employers who were entitled to expect that he would respect the confidentiality of their employees’ financial and other details, and protect their identities.

40. The Applicant’s offences call for the imposition of a sentence that has strong deterrent force, in terms both of its effect on the Applicant as well as on the community more generally. There are thousands of people, both in the private and public sectors, who are entrusted, as was the Applicant, with roles relating to the payment and financial arrangements of their fellow employees. Such persons should be under no illusion that abuse of these positions of responsibility is not acceptable and warrants condign punishment.

41. The Applicant’s personal circumstances have been referred to at [15]-[18] above. There is nothing particularly remarkable about them. He was a relatively young man who had had the benefit of a tertiary education in Australia, had started a new life here and who had successfully secured employment in roles of responsibility. That trust was abused and the opportunities squandered by what was found to be the Applicant’s greed. Motivation to assist one’s family, usually a matter to be admired, generally loses any positive character when that assistance is secured by unlawful means. So it was here.

42. Much of the supplementary evidence led as to “probable effect that any sentence would have on any of the [Applicant's] family or dependants” must be viewed with this in mind in the sense that, to the extent that the support that the Applicant had previously provided to his immediate family, his parents and siblings was derived from his ill-gotten gains and generated an expectation of ongoing support, that was a source of support that they were not entitled to receive in the first place.

43. Nevertheless, especially with regard to his wife and child, there is no doubt that there has been a very serious impact on both of them on account of the Applicant’s incarceration, and I take into account the significant hardship that is no doubt being suffered by them. On the other hand, that is ameliorated in a limited sense by the matter referred to in [24] above. While I also take into account the impact of the Applicant’s incarceration on his parents and siblings, I give it less weight in light of their less direct relationship with the Applicant.

44. As with the sentencing judge, in the context of the Applicant’s subjective circumstances, I take into account the impact on him of knowing that his family have suffered, and no doubt continue to do so, as a result of his incarceration.

45. I also accept that the Applicant, as with all of the prison population during the period of the COVID-19 pandemic, has suffered the significant additional burdens of lockdowns and extended periods of isolation in prison to a greater degree than would normally be the case. The evidence was that the Applicant had been required to be in isolation for almost nine weeks (61 days). COVID-19 and associated restrictions have undoubtedly had a severe impact on those in prison, whose liberty is already severely curtailed by reason of their incarceration.

46. The evidence also supports the view that the applicant has been a reliable and conscientious prisoner during the period of his incarceration. So much is consistent with the sentencing judge’s findings, which I also accept, that the Applicant had shown contrition for his offences by making full reparation for the loss resulting from the offence; that he had expressed remorse to a psychologist and to his family; and that he had good prospects of rehabilitation.

47. Like the sentencing judge and notwithstanding the assessment that the Applicant has good prospects of rehabilitation, I am reluctant to make the positive finding that he is unlikely to offend again given the multiplicity of the offences and, more particularly, the fact, as recorded by the sentencing judge, that he had been sentenced in 2005 for a dishonesty offence of stealing property as a clerk/servant, for which he was sentenced to a 12-month good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure Act) 1999 (NSW) (as in force at that date).

48. Having regard to all of these matters, including allowing for the fact that I would, like the sentencing judge, have allowed a 25% discount for the Applicant’s early guilty pleas, I am not satisfied that any lesser sentence should be imposed on the Applicant for what were five significant offences involving extensive criminality, reinforced by the 20 items separately to be taken into account pursuant to s 16BA of the Crimes Act.

49. For completeness, the conclusion expressed in [48] above means that this is not a case where an intensive correction order could be imposed: s 68(2) Crimes (Sentencing Procedure) Act.

50. As such, whilst I would grant leave to appeal, I would dismiss the appeal.

51. PRICE J: I agree with Bell CJ.

52. LONERGAN J: I agree with Bell CJ.

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Decision last updated: 18 November 2022