Stevens v R

[2009] NSWCCA 260

New South Wales
Court of Criminal Appeal

CITATION:	Stevens v R [2009] NSWCCA 260
HEARING DATE(S):	14 September 2009
JUDGMENT DATE:	28 October 2009
JUDGMENT OF:	Spigelman CJ at 1; McClellan CJatCL at 9; Grove J at 87
DECISION:	1. Grant leave to appeal. 2. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - appeal - offences of dishonesty - sentence appeal - appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 Crimes Act 1914 (Cth) Crimes Amendment (Fraud and Forgery) Bill 2009 Crimes (Sentencing Procedure) Act 1999 Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)
CATEGORY:	Principal judgment
CASES CITED:	Gaffney v R [2009] NSWCCA 160 JM v R [2008] NSWCCA 254 Markarian v R [2005] HCA 25; (2005) 215 ALR 213 Pearce v The Queen (1998) 194 CLR 610 R v Chan [2000] NSWCCA 345 R v Clinch (1994) 72 A Crim R 301 R v Dinsdale (2000) 202 CLR 321 R v Hawker [2001] NSWCCA 148 R v JRD [2007] NSWCCA 55 R v Slater [2001] NSWCCA 65
TEXTS CITED:	Model Criminal Law Officers Committee Final report: Identity Crime Canberra, March 2008
PARTIES:	Gary John Stevens (applicant) The Crown
FILE NUMBER(S):	CCA 2007/16001
COUNSEL:	M C Ramage QC (Applicant) S Dowling (Crown)
SOLICITORS:	Jeffreys & Associates (Applicant) Director of Public Prosecutions (Crown)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0976 07/11/0785
LOWER COURT JUDICIAL OFFICER:	McGuire ADCJ
LOWER COURT DATE OF DECISION:	25 February 2008

2007/16001

SPIGELMAN CJ
McCLELLAN CJ at CL
GROVE J

WEDNESDAY 28 OCTOBER 2009

STEVENS, Gary John v R

Judgment

1 SPIGELMAN CJ: I agree with McClellan CJ at CL. I wish to specifically express my agreement with his Honour’s observations on the significance of general deterrence for identity crimes both in terms of identity theft, and in terms of the use of a fabricated or manipulated identity.

2 Past sentencing practices with respect to the offence of obtaining a benefit by deception, contrary to s 178BA of the Crimes Act 1900, must be treated with some care in this regard. There are a number of features of identity crimes which involve aggravated effects on victims and the community generally when compared with other forms of obtaining benefit by deception. These will be recognised, not least by increased maximum penalties, when the Crimes Amendment (Fraud and Forgery) Bill 2009 comes into force. That Bill is designed to harmonise New South Wales law with the national model scheme as proposed by Model Criminal Code Officers Committee of the Standing Committee of Attorneys General (MCLOC).

3 Identity crime has attained that degree of prevalence to which criminal sentencing has always responded. The MCLOC Report identified a number of reasons why the incidence, extent and cost of identity crime has increased and is likely to continue to expand.

4 The Report highlighted the following factors:

“The rise in high speed information flows.
Globalisation.
The increased use of remote communications to transact at a distance rather than traditional face-to-face interactions.
The ease with which documents can be forged using high tech methods, and
The widespread collection and dissemination of data about individuals by private sector and other organisations, which provides opportunities for easier access to personal information.”

(Model Criminal Law Officers Committee Final Report: Identity Crime Canberra, March 2008 p 9.)

5 The Report goes on to provide estimates of the economic costs of identity fraud to the community. The Report also highlights the indirect costs for victims of identity theft, by reason of the impact upon their creditworthiness and the time, effort and energy required to resolve their right to have a transaction reversed. There are also significant indirect effects on victims: the sense of invasion of privacy and the challenge to the sense of individuality, that arise with crimes of this character.

6 The ease with which identity crimes can be committed has expanded well beyond the traditional means of stealing mail or eavesdropping to obtain personal data. The new techniques are multifarious and have a facility of execution which is, of itself, such as to require that sentencing for such offences gives considerable weight to general deterrence. These techniques include:

The theft of personal information from computer databases.
Fake emails purporting to be from trusted organisations such as banks (known as “phishing”), requesting log on details by way of reply.
Social networking sites and instant messaging and unsolicited emails which encourage persons to divulge personal information.

7 Although the sentencing regime is likely to be addressed in the near future by legislative change, by the creation of more focussed offences and by an increase in maximum penalties, the significance of general deterrence in the exercise of the sentencing discretion will remain a matter to which particular weight must be given.

8 For these additional reasons I agree with the orders proposed by McClellan CJ at CL.

9 McCLELLAN CJ at CL: The applicant, Gary John Stevens pleaded guilty to 11 counts contained on 2 indictments relating to various offences of dishonesty. The counts are as follows:

10 First Indictment:

This indictment contained only one count being:
Use false instrument with intent contrary to s 300(2) Crimes Act 1900 for which the maximum penalty is 10 years imprisonment.

Second indictment:
Counts 1, 2 and 3: Possession of a false travel document contrary to s 22 of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) for which the maximum penalty is 10 years imprisonment.

Counts 4, 5, 6, 7, 8, 9 and 10: Obtain a benefit by deception contrary to s 178BA of the Crimes Act 1900 for which the maximum penalty is 5 years imprisonment.

11 The sentencing judge imposed a fixed term of 9 months imprisonment with respect to the count on the first indictment. The period of imprisonment was specified to commence on 29 November 2006. In relation to counts 1, 2 and 3 on the second indictment his Honour sentenced the applicant to a non-parole period of 1 year and 6 months commencing on 29 August 2007 and, pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth) imposed a recognisance to be of good behaviour for an 8 month period from 1 March 2009 to 31 October 2009.

12 In relation to counts 4, 5 and 6 his Honour imposed a non-parole period of 2 years to commence on 1 March 2009. He provided a period of parole of 1 year. In relation to counts 7, 8 and 9 his Honour imposed a non-parole period of 2 years with a further period of 1 year on parole. In relation to count 10 his Honour imposed a non-parole period of 1 year with a period on parole of 2 years and 3 months.

13 When sentencing the applicant with respect to the counts on the second indictment his Honour defined the period on recognisance for counts 1, 2 and 3 as commencing on 29 February 2009 and finishing on 28 October of the same year. Because 2009 is not a leap year there are only 28 days in February. It is plain that his Honour slipped. The record has been corrected although it is not apparent whether this was done by his Honour or at his Honour’s request. The record now shows that the period of recognisance commences on 1 March 2009 and expires on 30 October 2009. A similar slip occurred in relation to counts 4, 5 and 6 and a correction has been made. The non-parole period is now shown as commencing on 1 March 2009 and expiring on 28 February 2011. The period on parole is shown as commencing on 29 February 2012. In relation to counts 7, 8 and 9 a similar slip occurred and the record has now been amended so that the non-parole period is shown as commencing from 1 March 2011 and expiring on 28 February 2013. The parole period is shown as commencing on 1 March 2013 and expiring on 28 February 2014. Because 2012 is a leap year there was no slip in relation to the sentence on count 10.

14 The total non-parole period imposed was 6 years and 3 months imprisonment commencing 29 November 2006 and expiring 28 February 2013 with a balance of term of 2 years and 3 months expiring on 28 May 2015.

15 A statement of the relevant facts was agreed and tendered to the sentencing judge. It is unnecessary to restate the facts in full and I gratefully adopt the summary provided by the respondent in its written submissions to this Court.

First indictment

16 The applicant entered a Westpac Bank branch in Sydney on 30 January 1990 and asked to cash a cheque for $6,700. It was dated 20 January 1990, was made out to “cash” and signed (apparently by a J Nealer”). The applicant said he was “Gary Anderson” and explained that he needed to pay overdue wages to employees of a pool company. Earlier, the bank manager had received a call from a man who said he was “John Nealer of F J Hawkes & Co” and that he had given a cheque to someone and asked if that person could come into the branch to cash the cheque. He explained that he had been asked to make a payment for a swimming pool (on behalf of Doug Sayer who was apparently overseas) and that his account only had $700 in it but that he would cover the payment first thing the next morning from an expected bonus payment. At the branch, the applicant gave the bank manager a business card in the name of “John L Nealer”. The manager checked the account balance (which was $1,200) and subsequently gave the applicant $6,700 in cash. The manager being suspicious caused the security camera to be activated as the applicant left the branch.

17 On 1 February 1990 Douglas Sayer (who worked at F J Hawkes & Co) discovered that a cheque was missing from his cheque book. He went to the Westpac branch and identified the missing cheque as being the one which the applicant had cashed on 30 January. Apparently the signature on the cheque was a poor imitation of Mr Nealer’s signature.

18 When the applicant was questioned by the police on 20 August 1990 he said he had cashed the cheque at the behest of a person (whom he had met at the races) after explaining that he was broke. He said that the person gave him $500 for cashing the cheque - $200 for his efforts, and $300 as a loan.

19 After his arrest, the applicant was admitted to bail. He pleaded not guilty on the date of committal for trial (25 February 1991), which was set down for 26 August 1992. He failed to appear. He had left Australia on a flight bound for the UK on 14 June 1992. A bench warrant was issued and executed. He was arrested on 29 November 2006 for the offences in the 2^nd indictment. He pleaded guilty on 6 December 2007 in the District Court.

20 During the proceedings on sentence the Crown provided written submissions to his Honour which disclosed that the applicant, after returning to Australia, had moved in and out of the country several times between 1998 and 2006. However, there was no suggestion that he had used a fraudulent passport to facilitate his travel.

Second indictment – counts 1, 2 and 3

21 On 29 November 2006 a search warrant was executed at the applicant’s home, during which three United Kingdom passports were found, each in different names, but with the applicant’s photo on them.

22 The sentencing judge noted that he had no information about how the applicant came to possess the passports, except that he would have participated in their creation by providing his photo. He noted that they could have readily been used to facilitate fraudulent behaviour, that it was of “substantial significance that there were three passports capable of providing evidence of three separate false identifies”, and his Honour had “no doubt that they were intended to be utilised for multiple frauds.”

Second indictment - count 4

23 On 31 occasions between 9 may and 4 October 2003 the applicant was photographed making cash withdrawals (averaging $1,000) from ATMs in the eastern suburbs. He withdraw a total of $29,920 from a Westpac Bank account in the name of “Chad Thorpe”. The funds in this account had been sourced from unauthorised internet transfers (by a person unknown) from a joint account held in Westpac. These unauthorised transfers (conducted between April and November 2003) totalled $504,120 from which a total of $290,950 was deposited via the internet into the account of “Chad Thorp”.

Second indictment - count 5

24 On 17 occasions between 23 July and 1 October 2003 the applicant was photographed making cash withdrawals (averaging $1,000) from ATMs in the eastern suburbs. He withdraw a total of $16,480 from a Westpac Bank account in the name of “Chad Munce”. The funds in this account had been sourced from unauthorised internet transfers (by a person unknown) from a joint account held in Westpac. These unauthorised transfers (conducted between April and November 2003) totalled $504,120 from which a total of $90,170 was deposited via the internet into the account of “Chad Munce”.

Second indictment - counts 6 and 7

25 On 31 October 2006 the applicant used the internet to transfer $36,650 and $222,000 from an ING Bank account (held by Dr Jeffrey Ichilcik) into a Commonwealth Bank account which had been opened in the name of “Brendan Urquart-Eastwood” on 30 August 2006. On 1 and 2 November 2006 Mr Urquart-Eastwood withdrew money from that account via ATMs. On 23 October 2006 the applicant had called the ING Bank (giving his name as “Jeffrey Ichilcik”) and re-set “his” internet banking password after answering personal information. Using internet banking, the mailing and residential addresses held for the ING Bank account were changed (to a Potts Point address linked to a hostel at which both the applicant and Mr Urquart-Eastwood had been seen by police); the contact email address was changed, as were the contact phone numbers – the subscribers were neither the appellant nor Dr Ichilcik, and a mobile phone (with the same new number that had been registered on the account) was found during a search of the applicant’s home. On a number of occasions a male person also rang the bank in relation to the account and his voice was recorded (and identified as being the voice of the applicant). During the search of the applicant’s home a number of personal, business and financial documents of Dr Ichilcik were found, in addition to handwritten notes relating to Dr Ichilcik. The Crown case was that the applicant obtained access to Dr Ichilcik’s personal information through theft of his mail.

Second indictment - counts 8 and 9

26 On 7 August 2006 a customer of Westpac Bank paid off her and her husband’s Visa card and cancelled that account. On 28 August an unknown person rang the bank (stating he was Mr Willmore, one of the joint account holders) and changed the contact address to the same Potts Point hostel address as in counts 7 and 8. Internet banking facilities for the bank account and credit card held by Mr and Mrs Willmore were re-activated.

27 Between 31 August and 23 September 2006 12 unauthorised transfers (from various internet cafes) totalling $32,620 were made from Mr and Mrs Willmore’s bank account to another Westpac Bank account in the name of “Elaine Barbara Paul”. This account was opened on 25 August 2006. Identification was provided in the form of Commonwealth Bank, St George Bank, Medicare and Pensioner Concession cards. The address associated with the Potts Point Hostel was given. Between 4 and 25 September 2006, the $32,260 was withdrawn from this account from a number of ATMs.

28 Over the same period, four unauthorised transfers totalling $10,590 were made from Mr and Mrs Willmore’s bank account to a St George Bank account in the name of “Timothy Joel Russell”. This account was opened on 28 August 2006. Identification was provided in the form of a Queensland driver’s licence, as well as Medicare and Pensioner Concession cards. The address given was the same as the mailing address for Ms Paul’s account. Between 13 and 18 September 2006, the $10,590 was withdrawn from this account from a number of ATMs.

29 When the applicant’s house was searched, the police found two ATM cards in his wallet in the names of “Elaine B Paul” and “T J Russell”. Other papers found by the police in his home included an account statement for Mr Willmore from the Westpac Bank. The Crown case was that the applicant obtained access to Mr Willmore’s personal information through theft of his mail.

Second indictment - count 10

30 On 5 April 2006 an unknown person accessed Westpac Bank’s internet banking and changed the password and address (to the same Potts Point address as above) for an account held by Emery Eric Korda. On 26 April another Westpac Bank account was opened via telephone in the name of Emery Eric Korda. Due to the telephone operator’s error, the account was opened immediately without a 100-point check being conducted in a branch.

31 Between 26 April and 23 May 2006 15 unauthorised internet transfers totalling $54,675 were made from Emery Eric Korda’s bank account into the new bank account which had been opened in his name. Between these dates a total of $54,335 was transferred from the new account opened in Emery Eric Korda’s name to a Commonwealth Bank account in the name of “Elaine Barbara Paul”. This account had been opened on 14 February 2005 with a Medicare card, Energy bill, Pensioner Concession card and passbook account produced as identification. Between 27 April and 25 May 2006, $54,301.41 was withdrawn from Elaine Barbara Paul’s account from a number of ATMs (including in Auckland, New Zealand, where the applicant was identified by a witness as being at the time).

32 When the applicant’s house was searched, the police found documents in relation to the opening of the second Westpac Bank account in Emery Eric Korda’s name. The Crown case was that the applicant obtained access to Mr Korda’s personal information through theft of his mail.

Remarks on sentence

33 The sentencing judge identified that the applicant had engaged in dishonest conduct on 139 separate occasions. His Honour described the applicant’s conduct as “grossly dishonest and deceptive on a grand scale” and that “it is difficult to conceive of a more deliberate and planned course of systematic dishonesty.”

34 The sentencing judge found that counts 4 to 10 inclusive were at the higher, if not the highest end, of the scale of criminality for offences of their kind. His Honour emphasised the need to denounce and punish the applicant’s conduct by a sentence which adequately reflected both general and specific deterrence.

35 The sentencing judge identified the fact that before the applicant was to be tried for the offence on the first indictment he had fled the jurisdiction. Although mindful of those circumstances his Honour nevertheless provided a discount of 10% to reflect the utilitarian value of the plea for that count. His Honour allowed a reduction of 25% for the pleas in respect of the matters on the second indictment.

36 In relation to counts 1 to 3 on the second indictment, which related to the possession of false passports, his Honour was satisfied that the applicant had not used them for international travel. In submissions to his Honour the applicant’s counsel conceded that the court could safely find that the passports may have been used for some fraudulent purpose. His Honour’s finding was “I hold no doubt that they were intended to be used for multiple frauds.”

37 The sentencing judge considered the applicant’s antecedents, in particular his conviction in October 2004 for dishonestly obtaining a gain from a Commonwealth entity for which he was fined and received a recognisance to be of good behaviour for a period of two years. The 22 offences involved in count 10 were committed whilst the offender was subject to this recognisance. The sentencing judge also emphasised that all of the offences on the second indictment were committed whilst the applicant was subject to bail following his commission of the offence on the first indictment.

38 The sentencing judge was not persuaded that the applicant was remorseful. He also concluded that some of the victims were vulnerable by reason of their age and frailty.

39 In his remarks on sentence the sentencing judge identified the necessity for the sentences to be appropriate for the total criminality involved. His Honour found special circumstances by reason that this would be the applicant’s first time in custody and the accumulation of multiple sentences. His Honour accordingly varied the statutory ratio of the non-parole period to the head sentence.

The appeal

40 The applicant advanced four grounds of appeal being as follows:

Ground 1: The sentence was unduly harsh and severe.
Ground 2: The sentencing judge erred in respect to totality.
Ground 3: The sentence was vitiated by error.
Ground 4: The sentencing judge erred.

41 Before turning to grounds 1 and 2 it is convenient to consider grounds 3 and 4. Under those grounds the applicant raised discrete issues with respect to a number of the individual sentences.

42 As I have previously indicated when imposing sentences with respect to counts 1 to 3 on the second indictment his Honour purported to impose a period of recognisance commencing on 29 February 2009 and sentences in respect of counts 4 to 9 commencing on the same day. This was an obvious slip. The final day in February of 2009 was the 28^th as it will be in the year 2011. The record indicates that the slip was identified and an amendment has been made to the record. The slip has no practical impact on the periods which the applicant must serve in custody or on parole and has no other relevant consequence. Because the slip was not carried forward to the sentence in relation to count 10 and no alteration has been made to that sentence the effect is that the last day of the sentence is 28 May 2015. It is likely that if the slip had not occurred this date would have been 31 May being the last day of May in that year. As a consequence if it has had any effect at all the mistake operates in the applicant’s favour.

43 When sentencing in relation to the count on the first indictment his Honour said that he sentenced the applicant to “a sentence to imprisonment by way of a non-parole period for 9 months. A fixed term commencing on 29 November 2006 and expiring on 28 August 2007. A fixed term has been imposed having regard to the sentences to follow.”

44 The applicant complained that his Honour has accordingly imposed a non-parole period without a head sentence. Although his Honour used the expression “non parole period” his Honour in fact imposed a fixed term. This is plain from the use of that expression when defining the dates for the commencement and the conclusion of the relevant sentence. The applicant’s complaint is without merit.

45 In relation to counts 1 to 3 on the second indictment it was submitted that his Honour erred by imposing a non-parole period with no head sentence “but purporting to impose a recognisance at the conclusion of that period” for the three passport offences. The applicant also submitted that his Honour erred by commencing the period of recognisance at the expiration of the non-parole period, although that recognisance will be rendered nugatory by the further sentences which were imposed.

46 As the respondent pointed out in submission, s 19AC(1) of the Crimes Act 1914 (Cth) requires a judge to make a “recognisance release order” in respect of a sentence that does not exceed 3 years. By imposing the sentence which he did his Honour would have been aware that the period of recognisance would be subsumed in the subsequent sentences. Although his Honour referred to a “non-parole period” it is plain that he intended to refer to the term of imprisonment preceding his release to recognisance in accordance with s 20(1)(b) of the Act. Although his Honour has not used the language of the Act his intention is plain and the error complained of by the applicant is of no practical consequence.

47 It was submitted that the sentencing judge erred in failing to comply with the provisions of s 44 and s 45 of the Crimes (Sentencing Procedure) Act 1999 when sentencing the applicant on counts 4 to 6 and counts 7 to 9 on the second indictment. It was submitted that his Honour failed to sentence in accordance with the principles in Pearce v The Queen (1998) 194 CLR 610 and that his Honour failed to evaluate the criminality involved in each offence and drew no distinction between the sentences imposed. The applicant referred to the decision of this Court in Gaffney v R [2009] NSWCCA 160.

48 It is plain from his Honour’s remarks that he considered each of these individual offences to have the same degree of criminality. His Honour was of the opinion that each individual offence warranted a sentence of 3 years with a non-parole period of 2 years but for reasons of totality he would make three of the sentences concurrent (counts 4 to 6) and accumulate the sentences for counts 7 to 10, which were themselves made concurrent, although the full term for count 10 extends beyond the term of the other sentences.

49 There is no requirement for a sentencing judge to determine or pass sentence in discrete stages and before a decision has been made as to the ultimate structure of the individual sentences: R v JRD [2007] NSWCCA 55 at [26]-[33]. The decision in Pearce does not require the sentencing judge to set differentiated sentences for each offence, the sentence for each offence being precisely proportionate to the criminality of that offence: R v Chan [2000] NSWCCA 345 at [28]. In Gaffney where a similar ground of appeal was upheld, the sentencing judge imposed fixed terms of imprisonment in respect of four counts, fixed terms of imprisonment (cumulative) on another two counts, and a term of imprisonment, with a non-parole period and balance of term, for two remaining counts (partly cumulative). The court concluded that the sentencing judge had allowed the totality principle to distort the sentencing exercise and concluded that the sentences imposed were a product, not of the individual offences, but, of an endeavour to impose an appropriate total sentence. I am satisfied that this has not occurred in the present case. Although some offences were grouped together, having regard to the number of offences this was inevitable. However, there is no indication that his Honour did other than identify the appropriate sentence for the individual offences and then used concurrency and accumulation to achieve an appropriate overall result.

50 In the present case each of the offences in counts 4 to 10 were similar although some involved withdrawing sums of money from ATMs and others involved transferring money over the internet. Counts 4, 5 and 6 involved amounts of $29,920, $16,480 and $36,650 whilst counts 8 and 9 involved amounts of $32,620 and $10,590. Each count, with the exception of count 6, was comprised of a number of individual offences. Count 7 involved a more significant sum, $220,000. There was otherwise little to differentiate the criminality. The fact that count 6 was a one-off offence is balanced by the fact that the total amount was more than the other counts comprising multiple offences. If anything the lack of differentiation in the sentence for count 7 operated in the applicant’s favour.

51 The sentencing judge identified that “each of the seven offences” is at the higher end of the range of criminality. His Honour expressly emphasised the number of individual offences making up each count and the amounts involved. The fact that he grouped some offences together before pronouncing the sentences for each group merely reflected the fact that for reasons of totality he made some sentences concurrent and accumulated others. This approach was open to his Honour.

52 The applicant submitted that his Honour erred by failing to comply with s 16F(2) of the Crimes Act 1914 (Cth). That section obliges a sentencing judge who makes a recognisance release order to explain its purpose and consequences.

53 After he had pronounced the sentences his Honour said:

“Mr Stevens, you have been sentenced to imprisonment and you are to be released upon the expiration of the non-parole period upon your entering into a recognisance to be of good behaviour. If during that recognisance period you are not of good behaviour you are liable to be further apprehended and to be sentenced or required to serve that term the subject of the recognisance. Similarly, if you are not of good behaviour during the parole period I have set you are again liable to be apprehended and required to serve the balance of the sentence comprising that parole period.”

54 The effect of the sentences which his Honour imposed was that the period of recognisance for the Commonwealth offences was subsumed by the non-parole periods for the State offences. If his Honour’s remarks were less than s 16F(2) required, and no particular deficiency was identified, it was of no practical consequence.

55 The applicant submitted that his Honour erred by confining his finding of special circumstances to only part of the total sentence. His Honour found special circumstances in relation to counts 4 to 10 on the second indictment but made no finding in relation to the count on the first indictment.

56 The submission is without merit. The sentence on the first count was a fixed term and questions of parole did not arise. His Honour’s finding of special circumstances in relation to counts 4 to 10 was made after his Honour had indicated that he was mindful of the principles of totality. His Honour varied the ratio for counts 4 to 9 to approximately 66% and in relation to count 10 it was varied to 30%, an indication of the sentencing judge’s concern that the overall sentence would provide an appropriate balance between the period in custody and the period on parole. There is nothing to suggest that his Honour did not intend the outcome which was achieved. His Honour reserved consideration of his sentencing decision and gave detailed reasons for the sentences he was imposing.

57 A number of discrete submissions were made in relation to ground 4. The applicant submitted that his Honour erred in his findings with respect to the criminality involved in the passport offences. The Crown submitted at the sentencing hearing that there was no evidence that the passports had in fact been used for fraudulent purposes. However, the applicant’s counsel conceded that his Honour could assume that their possession was for fraudulent purposes. They would obviously be useful in an offence where a false identity would be of assistance. His Honour excluded the possibility that the passports had been used for travel but said that they “could readily have been utilised to create a false identity and to facilitate some fraudulent endeavour.” His Honour said further: “I hold no doubt that they were intended to be utilised for multiple frauds.” This finding was open to his Honour who proceeded to sentence the applicant for possession of the passports but made plain that he was not sentencing for any offence involving their use.

58 The applicant complained about his Honour’s finding that the offences in counts 4 to 10 were “at the higher if not the highest end of the scale of criminality”. Although a submission to this effect was not made by the Crown at the sentencing hearing his Honour indicated that his conclusion was based on the fact that the offences themselves represented “multiple fraudulent acts.” Some counts encompassed a large number of individual transactions over several months, some involved large sums of money in one transaction. The offences were part of an elaborate scheme by which bogus bank accounts were created and other person’s internet banking facilities were fraudulently accessed to transfer funds into the bogus account. For the scheme to operate the personal records of a number of people were stolen.

59 His Honour accepted that the applicant may not have been a principal in the thefts of the necessary identities and made plain that he was not sentencing the applicant for them, but identified, as he was entitled to do, that the applicant must have acted in concert with whoever had stolen the records. By reason of the personal records found in the applicant’s house and other documents there was significant evidence that he had been personally involved in setting up the bogus accounts. It is plain, as his Honour found that the applicant had on many occasions dishonestly taken substantial amounts of money with full knowledge that he was defying the law. His Honour was entitled to find as he did that this was not a “one off fall from grace” and that it was “difficult to conceive of a more deliberate and planned course of systematic dishonesty”.

60 The sentencing judge found that some of the victims were vulnerable and that in one case a pensioner was targeted. The applicant submitted that there was no evidence that he was aware of this or that any person had been targeted due to their vulnerability or because they were a pensioner.

61 The remark about which complaint is made came at the conclusion of his Honour’s remarks with respect to the serious nature of the offences and the expectation of the community that meaningful penalties will be imposed. There can be no doubt that the applicant knew that he was dishonestly taking the money of many persons with the likelihood of seriously compromising their confidence in the banking system. In the sense that each of the victims had placed their faith in that system they were obviously vulnerable, although it would seem that a finding that a pensioner was targeted was not supported by any evidence. I do not believe that finding has affected his Honour’s decision as to the appropriate sentences in any material fashion.

62 The psychological report in relation to the applicant indicated as part of his recorded background that he had met his partner when he was 18. The relationship apparently broke down and he then met a Scottish backpacker. The report records that he travelled with her to Scotland in 1991. This was not correct. In fact he left in 1992. After a time the couple moved to London and married. However in 1997 the applicant returned to Australia where he recommenced the earlier relationship.

63 The applicant sought to tender evidence to this Court which indicates that he and his former wife left Australia in 1992 and not 1991. This was to answer any suggestion that he may have used a false passport to leave the country. The sentencing judge was sceptical about the usefulness of the psychological report during the proceedings on sentence and remarked that there was no reference to the fact that the applicant had apparently left Australia on 14 June 1992, successfully avoiding his trial. His Honour made this remark during the proceedings on sentence when he indicated that there was a lack of information about the applicant’s subjective case. However, his Honour did not make a finding that the applicant had used a false travel document to leave Australia in 1991 and accordingly the remark is of no consequence.

64 In any event the evidence which has been filed and which the applicant seeks to tender in these proceedings is not fresh evidence. Although the applicant complained that his former solicitor did not place appropriate evidence before the court the applicant was present in court when the date of his departure was referred to as being in 1991. The opportunity would have been available for him to inform his counsel that the date which was being discussed was not correct and he had every opportunity to inform the court of the correct position.

65 The relevant fact to which his Honour had regard was that whenever it was that the applicant left Australia he was on bail and did not appear for his trial.

66 The applicant submitted that his Honour erred in finding that all of the offences on the second indictment were committed whilst the applicant was on bail. It was submitted that rather than being on bail the applicant was at large following the issue of a bench warrant for his arrest. This was strictly correct, although the applicant’s bail was not formally revoked until he appeared in the District Court on 1 December 2006. Although his Honour indicated that the applicant was on bail rather than at large this has no significance. His Honour was well aware of the fact that the applicant had failed to appear at his trial and that a bench warrant had been issued for his arrest.

67 The applicant submitted that it had been alleged by the respondent that he was the principal only in relation to counts 6 and 7 and that his Honour failed to take this into account. However, when the applicant pleaded guilty he accepted that he was guilty of offences by which he deceptively caused the electronic transfers and obtained a financial benefit for himself. The applicant was a central player in all of the offences. The applicant’s counsel accepted, during the sentence hearing, that the applicant “has to have been involved with those who organised the scheme.” His Honour found that the applicant acted in concert with accomplices. Whatever was the applicant’s actual degree of involvement in setting up the bogus accounts and theft of the personal records it was he who made the relevant withdrawals and otherwise completed the offences. The findings which his Honour made as to his involvement were clearly open.

68 The applicant draws attention to the fact that his Honour identified a total sum involved in the offences of $402,935 but only $193,753 was actually lost. The balance was recovered. The actual loss was identified in the “Crown sentence summary” placed before his Honour.

69 The applicant’s criminality was not dependent upon whether the banks had been successful in retrieving any part of the money. The amount fraudulently obtained was correctly identified and it was that amount which was to be reflected in the seriousness of the offences.

70 The applicant submitted that the reduction which his Honour allowed in the sentence for the offence on the first indictment for his guilty plea was inadequate. His Honour allowed 10%. This submission is without substance. After he had been committed for trial, and his trial date fixed, the applicant fled the jurisdiction. He remained at large for many years. His counsel conceded during the proceedings on sentence that his plea to the first indictment was not entered at the earliest opportunity. It could hardly have been otherwise. A discount of 10% was within his Honour’s discretion.

71 The sentencing exercise for the offences was by reason of the number of counts complex. However, analysis of each of the sentences suggests that his Honour achieved his stated objectives. In relation to counts 4, 5 and 6 his Honour imposed sentences of 3 years. A 25% discount suggested a starting point of 4 years and, absent the finding of special circumstances, a non-parole period of 3 years would follow. The ultimate sentence of 2 years without parole with a balance of term of 1 year suggests that his Honour achieved the discount which he intended.

72 Complaint is also made about the sentence for the passport offences. In relation to these matters his Honour noted that there was little authority to guide him as to the appropriate sentence. This was due in part to the fact that the penalty was increased from 2 to 10 years, and all but one of the previous matters had been dealt with in the Local Court. His Honour imposed a penalty of 2 years and 4 months as against the maximum penalty of 10 years. To my mind this was appropriate.

73 The applicant submitted that the fixed term imposed for the offence on the first indictment effectively nullifies most of the benefit which his Honour gave for the plea for the passport offences. The term of imprisonment which the applicant must serve for these three offences is 1 year and 6 months. However, there is nothing to indicate that the individual sentences were not ameliorated as his Honour intended. The real question is whether the overall sentence was appropriate in all of the circumstances.

74 Finally, the applicant complained that his solicitor at the sentence hearing was negligent by telling him that any character references would be of little utility and there was no real purpose in obtaining them. The applicant’s former solicitor has deposed in an affidavit that he did not believe that any testimonial would be of assistance having regard to the applicant’s record, his failure to appear, and the long period over which he had committed the offences. This approach was plainly open and I am not persuaded that the applicant was adversely affected by it.

Grounds one and two

75 The applicant provided a comprehensive schedule of sentences which have been imposed for offences involving fraud committed by accountants, bank employees, solicitors, clerical assistants and investment advisors. As would be expected they demonstrate a variety of sentencing outcomes which reflect the circumstances of the particular offences; the maximum penalties, the number of offences, the amounts of money involved and the personal circumstances, including prior offences of the individuals. Most of the cases included in the schedule involved an appeal either by the convicted person or the Crown. The sentences reflected in the table indicate that penalty imposed in the present case, although significant, was not beyond the accepted range.

76 Although statistics and schedules of comparative cases are of value their limitations are well known. Those limitations have been discussed on a number of occasions with respect to white collar crime. In particular it is difficult to form a conclusion as to the appropriate range of penalties for individual offences given the variability of circumstances including the influence of sentencing principles previously accepted to be appropriate to a Crown appeal. Wood CJ at CL commented upon these problems in R v Hawker [2001] NSWCCA 148. The problems were underlined by Spigelman CJ in R v Slater [2001] NSWCCA 65 at [50]-[52] where his Honour said:

“In my view, greater assistance is to be derived by reference to general sentencing policy which has seen something of a hardening attitude to white collar crime in view of its difficulty of detection, and in view of the fact that its impact may fall upon a wider group of investors or creditors: Pont [2000] NSWCCA 419.”

77 Many of the decisions to which we have been referred involve a breach of trust. This is not the case with respect to the applicant. However, there are a number of matters which justify a finding that the offences are at the higher end of the range of objective seriousness. The offences were sophisticated and the degree of planning was high. Counts 4 to 10 resulted from “identity theft” and the manipulation of the banking system to divert the money toward the applicant. The amount of money involved was significant. The offences accrued over a lengthy period – 16 years. These were offences committed with a resolute intention to defraud others by manipulating the banking system. The applicant was also sentenced for the three offences relating to false passports.

78 Although a number of the decisions relate to offences involving significantly greater sums than the applicant’s offences the amounts diverted by the applicant were not inconsiderable. They total $402,935. The sentencing judge concluded that “it is difficult to conceive of a more deliberate and planned course of systematic dishonesty.” This finding was open to his Honour. His Honour was concerned to impose a sentence which appropriately denounced the applicant’s conduct, punished him and may deter others from committing similar offences.

79 Electronic banking has brought many benefits to the community. It is efficient and convenient. It allows individuals and corporations to complete transactions where previously paper would be generated and in many cases physical attendance at bank premises would be required. It is of benefit to the disabled just as it is to business. Electronic banking is already utilised by many people but will inevitably become the almost universal method of conducting financial transactions. However, as the current offences make plain the electronic system is vulnerable to persons intent upon dishonestly exploiting any weakness. That vulnerability may result in a complete loss of confidence in the system if breaches occur. If public confidence in the integrity of the system is to be maintained the courts have an obligation to ensure that when dishonest breaches of its security are identified the offenders are appropriately punished. Both personal and general deterrence are of particular significance in relation to these types of offences.

80 The applicant submitted that his Honour erred by fully accumulating blocks of sentences rather than partly accumulating them. His Honour’s approach was said to have produced a sentence in excess of that which was appropriate.

81 The offences in each count on the second indictment were committed over several months and on different occasions. It was within his Honour’s discretion to make the majority of the sentences concurrent and accumulate only the last two. This ensured that the applicant served a discrete period in custody for the offence on the first indictment and for the passport offences. The sentencing judge did not accumulate all of the sentences and allowed total concurrency on counts 4 to 6 and counts 7 to 9 although they were separate offences. There is no doubt that his Honour both considered the individual sentences which were appropriate and carefully considered issues of totality. No breach of the principles in Pearce v The Queen (1998) 194 CLR 610 has been demonstrated.

82 This Court is a court of error: JM v R [2008] NSWCCA 254. Before it can be established that a sentence is manifestly excessive an applicant must demonstrate that the sentence is “unreasonable or plainly unjust”: R v Dinsdale (2000) 202 CLR 321 at 325. This Court may not substitute its own opinion for that of the original sentencing judge merely because it may have exercised its discretion in a different manner Markarian v R [2005] HCA 25; (2005) 215 ALR 213 at 26-28.

83 In the present case the sentences which his Honour imposed were a response to grossly dishonest and deceptive conduct on a significant scale over a considerable period. The number of offences comprising count 10 of the second indictment were committed in breach of a 2 year recognisance for a dishonesty offence.

84 The applicant complains that the sentence is crushing and it was submitted that his Honour had failed to take into account that the severity of the sentence increases at a greater rate than the numerical increase in the length of the sentence (R v Clinch (1994) 72 A Crim R 301).

85 I am not persuaded that his Honour has erred. The applicant is a man of 45 years of age who chose to avoid the justice system in 1991 when he fled overseas. The offence on the first indictment was a brazen exercise involving a serious fraud of Westpac. Although compared with other cases of fraud with which the courts have sometimes to deal the sum taken was not large the degree of planning was sophisticated and the offending conduct relatively complex. The passport offences seem relatively unsophisticated. The documentation was of poor quality and may not have been accepted by Immigration. However, the documents were, as his Honour found, capable of being used for other purposes to support a false identity. The individual sentences for the numerous other offences and the overall sentence may be considered to be at the higher end of the identified range when the schedule of previous sentences is considered. However, I am not persuaded that the individual sentences, or the total sentences, were beyond the permissible range of his Honour’s discretion.

86 Although I would grant leave to appeal I would dismiss the appeal.

I agree with McClellan CJ at CL and with the additional comments of Spigelman CJ.

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