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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Rasel v R

Details

AGLC: Rasel v R [2022] NSWCCA 239
Case: [2022] NSWCCA 239
Decision Date: 18 November 2022

CaseChat Overview and Summary

Faisal Hasan Rasel (the Applicant) was sentenced by the District Court of New South Wales 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. 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. 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 v R [2022] NSWCCA 75; (2022) 400 ALR 578, the sentencing judge did not take this evidence into account for the purposes of s 16A(2)(p) of the Crimes Act 1914 (Cth), 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: 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). 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). 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). 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). 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).

Orders