Thangavelautham v R

[2016] NSWCCA 141

Court of Criminal Appeal

Supreme Court

New South Wales

• Summary available

Medium Neutral Citation:	Jeyavel Thangavelautham v R [2016] NSWCCA 141
Hearing dates:	9 February 2016
Date of orders:	20 July 2016
Decision date:	20 July 2016
Before:	Bathurst CJ at [1]; Hoeben CJ at CL at [97]; R S Hulme AJ at [98]
Decision:	Grant leave to appeal against conviction. Appeal against conviction dismissed. Grant the applicant leave to appeal against sentence. Appeal against sentence allowed. Set aside the sentences imposed on the applicant by Charteris DCJ and in lieu thereof sentence the applicant to a term of imprisonment of 9 years and 8 months with a non-parole period of 7 years and 3 months to date from 14 August 2011 and to expire on 13 November 2018 with a balance of term to expire on 13 April 2021. Vary the commencement date of the sentences imposed on the applicant by Garling ADCJ on 14 September 2015 to 13 November 2018. The applicant will be eligible to parole on 13 November 2019.
Catchwords:	CRIMINAL LAW – appeal – conviction – conspiracy to defraud – whether verdict unreasonable – whether conspiracy to defraud where applicant had an intention to harvest credit card information and onsell to third party CRIMINAL LAW – appeal – sentencing – whether error in failure to mitigate sentence for manner in which trial was conducted – whether justifiable sense of grievance regarding sentencing of co-offender – whether manifestly excessive
Legislation Cited:	Crimes Act 1900 (NSW), ss 93T, 178BA, 192E, 192J, 192K, 256(1)
Cases Cited:	Auimatagi v The Queen [2011] NSWCCA 248; 216 A Crim R 179 Bolitho v Western Australia [2007] WASCA 102; 34 WAR 215 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 FB v The Queen [2011] NSWCCA 217 Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317 Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 Hili v The Queen [2010] HCA 45; 242 CLR 520 JM v The Queen [2014] NSWCCA 297 Kentwell v The Queen [2014] HCA 37; 252 CLR 601 M v The Queen [1994] HCA 63; 181 CLR 487 Peters v The Queen [1998] HCA 7; 192 CLR 493 Postiglione v The Queen [1997] HCA 26; 189 CLR 295 R v Araya [2005] NSWCCA 283; 155 A Crim R 555 R v Doff [2005] NSWCCA 119; 54 ACSR 200 R v Harrower [1999] VSCA 182 R v Hoar [1981] HCA 67; 148 CLR 32 R v Kastratovic (1985) 42 SASR 59 R v LK [2010] HCA 17; 241 CLR 177 R v Nguyen & Luong [2011] NSWSC 562 R v Trudgeon (1988) 39 A Crim R 252 SKA v The Queen [2011] HCA 13; 243 CLR 40 Tomov v The Queen [2011] WASCA 189 Tuifua v The Queen [2008] NSWCCA 224; 189 A Crim R 1
Category:	Principal judgment
Parties:	Jeyavel Thangavelautham (Applicant)
Representation:	Counsel: P Lange (Applicant) S Herbert (Respondent) Solicitors: Aquila Lawyers (Applicant) Solicitor for Public Prosecutions (Respondent)
File Number(s):	2012/148738
Decision under appeal	Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 16 July 2014, 11 August 2014, 25 September 2014 Before: Charteris DCJ File Number(s): 2011/00261711 2012/00148738

HEADNOTE

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

Mr Jeyavel Thangavelautham (the applicant) was the ringleader of an operation whereby credit and debit card numbers and personal identification numbers (PINs) were skimmed via a dummy EFTPOS terminal (the terminal). The applicant, who entered Australia under a false name, imported the terminal from overseas. Together with his co-offender, Mr Jeyapalasingham, he solicited the owner of the Indian House Supermarket in Strathfield, Mr Junaidy, to install the terminal in his shop. The applicant also arranged for a “technician”, with the capacity and knowledge to manipulate the terminal, Mr Baskaran, to be flown to Australia.

Mr Jeyapalasingham acted primarily as a middleman between the applicant and Mr Junaidy. He was also largely responsible, together with another co-offender, Mr Krishnan, for procuring the services of, and obtaining fake identification for, a student, “Hari”, who would purport to be employed at the Indian House Supermarket and would be recorded on its CCTV footage before leaving Australia. Hari was to provide a “plausible deniability” excuse for Mr Junaidy. Evidence indicated that all those involved were to be rewarded, but none more so than the applicant.

Intercepted phone calls between the co-offenders indicated that they intended to skim approximately 1000 cards. There was also evidence that the store in Strathfield was not the only intended site of operation.

The terminal was successfully manipulated such that it did not communicate with financial institutions but rather skimmed the credit and debit card data and printed false receipts. The terminal was installed at the Indian House Supermarket and skimmed the data of at least four cards. The student, Hari, pulled out of the operation and before any more cards were skimmed, the police intervened and arrested the applicant and Messrs Jeyapalasingham, Junaidy, Baskaran and Krishnan.

The applicant was charged, inter alia, with conspiracy to defraud persons unknown. In particulars, provided upon request by the Crown, the applicant was charged with “by deception, dishonestly obtaining the property belonging to another person/persons, namely the credit card particulars and PIN’s and/or obtaining a financial advantage or causing a financial disadvantage”.

The applicant pleaded not guilty to the offence. While he consented to the tender of a large amount of evidence by the prosecution, he declined to make submissions as to the purpose of his activities or to indicate before closing submissions his reasons for being not guilty.

The applicant was found guilty and sentenced to an aggregate sentence of 11 years imprisonment with a non-parole period of 8 years and 3 months. For the relevant conspiracy, Mr Jeyapalasingham was given an indicative sentence of 4 years and 3 months with a non-parole period of 2 years and 10 months, after a 15% discount for a plea of guilty and a finding of special circumstances. He was, at the same time, sentenced for another conspiracy and given an aggregate sentence of 6 years with a non-parole period of 4 years.

The issues on appeal were:

1.   Whether the verdict was unreasonable where the evidence left open the possibility that the object of the conspiracy was to on-sell the customers’ data once it had been harvested, rather than to use the data personally.

2.   Whether the primary judge failed to mitigate the applicant’s sentence in view of the manner in which the trial was conducted.

3.   Whether the applicant had a justifiable sense of grievance in light of the sentence imposed upon Mr Jeyapalasingham.

4.   Whether the sentence was manifestly excessive.

The Court held (Bathurst CJ, Hoeben CJ at CL agreeing, R S Hulme AJ dissenting as to sentence) dismissing the conviction appeal but allowing the sentence appeal:

Conviction appeal

(i)   For the offence of conspiracy to defraud to be made out, it is necessary for the conspirators to have an intention to defraud; it is not enough that they have an expectation that the offence of fraud will be committed: [18] (Bathurst CJ); [97] (Hoeben CJ at CL); [98] (R S Hulme AJ).

Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317; R v LK [2010] HCA 17; 241 CLR 177; Peters v The Queen [1998] HCA 7; 192 CLR 493 applied

(ii)   Conspiracy to defraud involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. It is sufficient that the conspirators intend to take some advantage to themselves by putting another’s property at risk or depriving a person of a lawful opportunity to obtain or protect property: [23] (Bathurst CJ); [97] (Hoeben CJ at CL); [98] (R S Hulme AJ).

Peters v The Queen [1998] HCA 7; 192 CLR 493; Bolitho v Western Australia [2007] WASCA 102; 34 WAR 215; R v Kastratovic (1985) 42 SASR 59 applied

(iii)   The taking of credit card information put at risk the underlying accounts to which the cards related by providing the means for unauthorised access to those accounts. Where this risk was produced either by selling the data or using it personally, and by means that were admittedly deceptive and dishonest, the offence of conspiracy to defraud was made out: [22], [24] (Bathurst CJ); [97] (Hoeben CJ at CL); [98] (R S Hulme AJ).

Manner in which trial was conducted

(iv)   There are cases where the conduct of the offender in facilitating the course of justice is a matter which can be taken into account in the sentencing process, however, it is not a mandatory consideration and the extent to which it warrants consideration is a matter for the sentencing judge: [56]-[58] (Bathurst CJ); [97] (Hoeben CJ at CL); [98] (R S Hulme AJ).

R v Doff [2005] NSWCCA 119; 54 ACSR 200; R v Nguyen & Luong [2011] NSWSC 562 distinguished

Justifiable sense of grievance

(v)   In considering the parity principle, it is necessary to have regard to aggregate sentences, however, indicative sentences may be a guide as to whether the aggregate sentence is excessive: [70] (Bathurst CJ); [97] (Hoeben CJ at CL).

JM v The Queen [2014] NSWCCA 297 applied

(vi)   It is not a necessary condition to the application of the parity principle that the charges be formally identical, nor can the principle be ignored where aggregate sentences involve not only the same crimes but separate crimes which the person whose sentences are being compared have committed: [71]-[72] (Bathurst CJ); [97] (Hoeben CJ at CL).

Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 applied

(vii)   It was necessary to take into account that there were subjective factors present in the case of the co-offender not present in the case of the applicant and that the applicant played a larger role in the conspiracy, however, these matters did not justify the disparity in sentence; nor could it be justified by a comparison of aggregate sentences, which included additional crimes in each case: [76]-[77] (Bathurst CJ); [97] (Hoeben CJ at CL).

(viii)   In was an error, in sentencing the applicant, to make no reference to the sentence imposed upon his co-offender and to not consider the question of parity: [78] (Bathurst CJ); [97] (Hoeben CJ at CL).

(ix)   (R S Hulme AJ in dissent): The disparity between the co-offenders was justified having regard to their respective entrepreneurial levels and intended rewards and the high degree of sophistication of the applicant’s operation: [101]-[103] (R S Hulme AJ).

(x)   (R S Hulme AJ in dissent): In any event, the magnitude of the applicant’s offending and the need for general deterrence against the major threat of credit card fraud required that the sentence not be disturbed: [104]-[107] (R S Hulme AJ).

Tomov v The Queen [2011] WASCA 189; R v Hoar [1981] HCA 67; 148 CLR 32 applied

Manifestly excessive

(xi) Where the object of the conspiracy was to obtain the details of a significant number of individuals’ credit card information, it was not required that the applicant be sentenced by reference to a single offence under s 192E of the Crimes Act 1900 (NSW): [84] (Bathurst CJ); [97] (Hoeben CJ at CL); [98] (R S Hulme AJ).

(xii)   Where the offence is capable of undermining confidence in a country’s financial system, it is imperative that any sentence reflects the need for general and specific deterrence: [86] (Bathurst CJ); [97] (Hoeben CJ at CL); [98] (R S Hulme AJ).

Tomov v The Queen [2011] WASCA 189; R v Araya [2005] NSWCCA 283; 155 A Crim R 555; R v Harrower [1999] VSCA 182 applied

(xiii)   While past sentences can be used as yardsticks against which to measure a proposed sentence, they provide no real guidance where the offences are different in nature to the offence being considered. It is necessary to elucidate why the sentences referred to in statistics provide a relevant yardstick: [87] (Bathurst CJ); [97] (Hoeben CJ at CL); [98] (R S Hulme AJ).

Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1; Hili v The Queen [2010] HCA 45; 242 CLR 520 considered

Judgment

1. BATHURST CJ: Mr Jeyavel Thangavelautham (the applicant) was arraigned on an indictment charging four offences:

Count 1:   Did conspire with Krishnan, Baskaran, Jeyapalasingham and Junaidy to defraud persons unknown

(d.o.o between 13.07.11 and 14.08.11)

Common law offence

Maximum Penalty: at large

Count 2:   Did participate in a criminal group, knowing that his participation in that group contributed to the occurrence of criminal activity

(d.o.o between 13.07.11 and 14.08.11)

Crimes Act 1900 s93T(1)

Maximum Penalty: 5 years imprisonment

Count 3:   Did possess an EFTPOS terminal adapted for the making of a false document, knowing that it was so adapted, with the intention that it would be used to commit the offence of forgery

(d.o.o between 9.08.11 and 14.08.11)

Crimes Act 1900 s256(1)

Maximum Penalty: 10 years imprisonment

Count 4:   Did deal in identification information, namely a driver’s licence, with the intention of facilitating the commission of an indictable offence, namely fraud

(d.o.o between 5.08.11 and 14.08.11)

Crimes Act 1900 s192J

Maximum Penalty: 10 years imprisonment

Count 5:   Did possess identification information, namely two Canadian driver’s licences, with the intention of committing or facilitating the commission of an indictable offence

(d.o.o between 5.08.11 and 14.08.11)

Crimes Act 1900 s192K

Maximum Penalty: 7 years imprisonment

2. Following a judge alone trial the applicant was convicted on Counts 1-4 but acquitted on Count 5. He was sentenced to an aggregate sentence of 11 years imprisonment commencing on 14 August 2011 and expiring on 13 August 2022. The trial judge, declining to find special circumstances, fixed a non-parole period of 8 years 3 months expiring on 13 November 2019. The applicant has appealed against his conviction on Count 1 on the sole ground that the verdict was unreasonable. He has also appealed against the sentence imposed on him.

3. There is no dispute as to the primary facts surrounding the transactions said to give rise to the offences. They were set out uncontroversially by the primary judge in the following terms:

“In June 2009 the Fraud and Cyber Crime Squad of the State Crime Command of the New South Wales Police Force commenced to investigate the use of electronic card skimming devices and PIN pad underlays utilised in electronic funds transfer point of sale, known by acronym as EFTPOS terminals. The illegally captured data would then be used to create a cloned or duplicate credit or debit cards by encoding blank plastic cards with the data stolen or skimmed from the original card. Such cloned or duplicate credit or debit cards could then be used both in Australia and internationally to unlawfully withdraw funds from individuals’ accounts. Alternatively, offenders could on-sell card data on the international market for profit.

The EFTPOS terminal is manipulated through the covert installation of an electronic skimming device or alternatively installation of unlawful software, so as to capture card data information. A PIN pad underlay can capture the electronic personal identification number known as the ‘PIN’. The devices or software capture both the card data and the PIN relevant to the card. The manipulated terminal is either connected to the financial services network or there is put in place a substitute or ‘dummy’ terminal. A dummy terminal is not connected to the financial services provider’s network; as a result any transaction via that terminal is not communicated to the financial network and [as] a result a cardholder’s account is not debited for the transaction. But the details of the card, being the card number and the PIN, are skimmed and available to the conspirators.

As background there is tendered before me the information that EFTPOS terminals can be compromised either at the merchant location, or the existing terminal can be removed from the merchant location and manipulated elsewhere and then returned for reinstallation. Another method is to produce a new specific terminal manipulating and identifying the merchant location that uses the same make and model terminal. That duplicate EFTPOS machine is then installed. There is a negotiated price paid to the merchant provided he is aware of the activity. It is possible that it can be installed covertly, that is, unknown to the merchant. Steps can be taken to ensure that if the merchant is aware of the activity he can be provided with what is described as a ‘plausible deniability’ seeking to deflect criminal involvement to others.

Once the material is harvested then blank plastic credit cards with magnetic strips can be encoded with the harvested material, thereby creating a cloned or duplicate debit or credit card. The PIN is matched to that data. On some occasions that PIN can be recorded in writing on a sticker attached to the face of the cloned card. Once the cloning has occurred the cards can be used at automatic teller machines both in Australia and internationally to withdraw cash from the unfortunate victim’s [sic] accounts. If the harvested data is not used by the perpetrators of the offence to make cloned credit or debit cards the data itself can be sold both in Australia and overseas.

The Evidence

The Strike Force set up by the New South Wales Police Service was given the name Wigg. Amongst other persons of interest, the accused, Jeyavel Thangavelautham, also became a person of interest. In July 2011 investigators received information that the accused was in Australia and sought, by surveillance methods, to locate him. At that stage the Department of Immigration indicated that the accused had not entered Australia under his real name or identity which he had used previously to either gain entry to Australia or to unsuccessfully attempt to gain entry to Australia. On the limited evidence before this Court it appears common ground that the prosecution is not able to establish how it was that the accused made his way into Australia around the period 2011.

Investigators established that the accused was using a number of mobile telephone numbers. Police obtained interception warrants so as to monitor the accused's telephone calls with others. The accused was lawfully intercepted speaking with a co-accused Jeyapalasingham and also Baskaran. He spoke also to other people. In one intercepted call on 20 July 2011 the accused was heard to tell his wife on a telephone call to North America that he was using particular telephone services to call particular people so as to avoid detection of his conduct.

The police intercepted seven mobile telephone services utilised by the accused. The alleged co-offender Jeyapalasingham was said to use two different mobile phones to contact associates. Those mobile phone numbers attributed to this accused and his co-accused Jeyapalasingham were then subject to lawful telephone interception. Police monitored in excess of 1,600 calls during the relevant operation concerning this accused and his alleged co-offenders. More than 300 were specifically relevant to the charges before this Court. Some of the conversations intercepted were in code. The conversations, on the prosecution’s case, related to the importation of skimming equipment including a new EFTPOS terminal, the manipulation of that terminal and arrangements to locate a merchant who would consent to a compromised terminal being installed in his business premises. There was also conversation concerning the negotiation of payment to the merchant and the organising and planning of a specific course of action in arranging the installation of the EFTPOS machine; that planning including the engagement of a person who was purported to be employed by the merchant and to whom the finger of guilt would turn should the activity become known by the relevant authorities. The employment of that person, who was intended to leave Australia very shortly after the criminal activity, was to enable the merchant to establish plausible deniability.

Police not only utilised interception of telephone services but on 4 August 2011, after the arrival in Australia of the co-accused Baskaran, the police installed what is known as an integrated device which captured both the video and audio of activities within a unit where the accused lived with Baskaran at Auburn, in western Sydney. That audio-visual device continued to operate from 5 August 2011 until the arrest of all co-accused on 14 August 2011.

The evidence concerning count 1, the alleged conspiracy, is as follows. Between 13 July and 19 July 2011 the police intercepted telephone calls made by or to this accused, Mr Thangavelautham. Those calls concern the importation into Australia of a VeriFone VX670 EFTPOS terminal by the accused. That terminal was intended to be used as a ‘dummy’ terminal at a business known as the Indian House Supermarket at Strathfield. That business was owned and operated in partnership by the accused Junaidy and another person.

On 13 July 2011 the accused made a telephone call to an unknown male in Canada. There was conversation about the VeriFone VX670. The accused was told to type that identification number into Google on the internet; the Canadian male told the accused to check the third photograph on the website, which included the stand for that EFTPOS machine. The accused confirmed that, having seen that photograph, it was of the type he wanted to have posted to him.

The following day, Thursday 14 July, the accused called the unknown male again in Canada. That male told the accused that there would be two packages sent to Australia; one would be sent by the unknown male from Canada and the other would be sent from USA. One package was to arrive in Australia on the following Monday and the next the day after. On Sunday 17 July 2011 police investigators became aware that two items, being the VeriFone EFTPOS terminal and its base unit, had been sent to Australia. On 17 July Australian Customs intercepted the base unit which had been sent from Miami in the United States. Police photographed that unit and allowed it to continue on a controlled delivery to the intended destination at Winrich Lighting Palace in High Street in Penrith. Other evidence satisfies me that such business was operated by people related by marriage to the accused’s brother who lived in western Sydney.

The following day, Monday 18 July 2011, Customs intercepted the Verifone VX670 EFTPOS terminal; it had been secreted inside a video camera box. Within the box authorities found cables for that terminal and also a 4 gigabyte USB data storage device. Examination revealed that the data on that USB drive included the software for the VeriFone terminal and 40 lines of debit/credit numbers, PIN numbers and account details. Again, authorities allowed that delivery to continue to its intended destination at Winrich Lighting Palace. Just after 10am on that day, 18 July, the accused telephoned the courier company responsible for the delivery of the package to Australia. Amongst other things, he told the courier company that he was ‘waiting for it’. He was advised it would arrive either that or the next day.

The next day, Tuesday 19 July 2011, the accused telephoned Winrich Lighting Palace in High Street in Penrith and was advised that a package had arrived the previous day. He was told what was within the package. He informed the female to whom he spoke that a second package would be delivered that day and she should call him when it arrived. The unit that arrived first was the base unit which she referred to as the ‘charger’. Later that afternoon police observed the delivery of that second package by courier to the Winrich Lighting Palace. Not long thereafter the accused made a call to the unknown male in Canada through whom the delivery arrangements had been made; he told that male that the packages had arrived. When the lighting shop was closed that day the only employee was seen to walk from the premises to a nearby address in Penrith which was the residential address of the accused’s brother, Ravi Thangavelautham.

Later that evening the accused made a call to an unknown male and asked the male if he was aware of any locations where a dummy terminal could be installed. It was apparent that the accused was soliciting sites so that he could utilise more than one terminal.

The next week, 26 July 2011, the accused received a call from the co-accused Jeyapalasingham. Arrangements were made for them to meet with the co-accused Junaidy, who is the merchant whose business was to be used for the installation of the terminal. Two days later the accused and his co-accused Jeyapalasingham had a meeting with Mr Junaidy and another person. Their conversation included the topic of utilising Mr Junaidy’s ‘Indian House’ store on The Boulevarde at Strathfield for the purposes of skimming card details using the recently imported VeriFone EFTPOS terminal as a ‘dummy’ machine.

The next day, 29 July 2011, the accused again called the unknown male in Canada. He informed that person that he would be undertaking activities the next week. He enquired of that Canadian male whether the shop name ‘could be changed’. I accept that that conversation related to the printed receipt that would be produced by the dummy EFTPOS terminal after a transaction had been processed. To enable the terminal to work effectively, and importantly not to arouse the customer’s suspicion, the printed details on the receipt should record the merchant location amongst other things. The Canadian male commenced to explain how to achieve that alteration to the terminal but the accused requested that he wait until his ‘brother arrives’ so that the Canadian male could explain it to that person. I am satisfied beyond reasonable doubt that the ‘brother’ referred to was ‘the technician’, namely the co-accused Baskaran. He had the capacity and the knowledge to manipulate the terminal.

On 1 August 2011, a Monday, the accused telephoned his wife in Canada. He told her he was looking for another place to live. He also told her that an associate would be arriving on 3 August and there was a possibility they would conduct ‘a job’ on the next Saturday 6 August. The associate who was arriving on 3 August would, I conclude, after he was rested, be able to work upon the terminal on 4 August. The accused also told his wife that he had ‘another team’ due to come to Australia on 13 August with the intention of doing work on 20 August. The prosecution relies on that conversation between the accused and his wife to establish that the accused had intentions beyond the placement of the dummy terminal in the Strathfield shop to which I have referred.

Later that evening the accused called the same unknown male in Canada. He gave instructions to that male which were to be relayed to the co-accused Baskaran. Baskaran was to travel from, as I understand, Canada to Australia and would use his expertise to manipulate the EFTPOS machine which had arrived earlier. The accused gave instructions that Baskaran was to tell Customs officials on his entry to Australia that his visit was for the purpose of visiting his cousin. The accused also told the unknown Canadian male that the accused was to use a particular address in Auburn which was where Baskaran was to go once he had cleared through Customs and Immigration.

Instructions the accused had given were intended, I conclude, to reduce any suspicions of Customs or Immigration as regards Baskaran’s visit. The accused had been observed by police on a number of occasions during the investigation to visit a unit block at number 90 Northumberland Road, Auburn which is the address he had instructed Baskaran to utilise on his arrival in Australia.

Next day, 2 August 2011, the accused submitted an application to rent a unit in 3/67 Harrow Road, Auburn. The accused used the name of another individual, Akilan Kopalapillai, for the purposes of his rental application. When that rental application was successful the investigating police planted an integrated surveillance device capturing both audio and video in that unit.. When Baskaran arrived in Australia he lived in that unit in 3/67 Harrow Road, Auburn with the accused. There has been tendered before me the detail of conversations between them in that unit over the next ten days approximately. It also captured video of the activities of the two co-accused in the unit. The person, Akilan Kopalapillai, was actually observed as residing in 90 Northumberland Road, Auburn; the accused was observed to visit that address on a number of occasions. The accused used that person’s identity for the purposes of entering the lease.

On Wednesday 3 August the accused again contacted the unknown male in Canada. That male then gave him the name of the technician who would be travelling to Australia, namely, Sutharasan Baskaran. Telephone intercepts establish that Baskaran was flown to Australia for the purpose of manipulating the EFTPOS terminals so as to harvest credit or debit card information.

Later that day, 3 August 2011, the accused telephoned an unknown male, this time in the United Kingdom. He discussed the skimming operations he was about to conduct and also revealed how many credit or debit card numbers he planned to obtain. He stated that the co-accused, Junaidy, being the merchant, had requested a fee of $25,000 but negotiations had resulted in an initial payment of $15,000. The accused in that conversation also revealed that he had to pay about $2,000 to Mr Junaidy to compensate him for the loss of stock as a result of 50 transactions. Obviously the customers with their individual cards were transacting the purchase of items from Mr Junaidy’s business but, because the dummy machine was not linked to the financial services provider, the business would not receive credit for those transactions. The accused was revealing to the unknown male in the United Kingdom that he would be paying for those transactions as compensation to Mr Junaidy.

The next day, 4 August 2011, the accused was observed to attend the Sydney International Airport and pick up the co-accused Baskaran who had just arrived from Canada. Later that morning the accused again called the unknown Canadian male. He informed that person that Baskaran had cleared Customs. Baskaran then spoke to the Canadian male on the telephone. They spoke about their relief that Baskaran had cleared Customs; the Canadian male stated to Baskaran ‘I was holding onto my heart, brother’.

Later that morning this accused and Baskaran attended at the address in 90 Northumberland Road, Auburn. Later that afternoon the co-accused Jeyapalasingham contacted a co-accused Krishnan. The purpose of that conversation was to determine whether Krishnan had arranged for ‘a boy’ to purport to work in the Strathfield business so as to give ‘plausible deniability’ to the co-accused merchant Mr Junaidy. In that conversation Mr Jeyapalasingham told Mr Krishnan that he had collected from the existing EFTPOS terminal at the merchant shop a copy of a transaction docket; that copy was to be utilised by the co-conspirators to manipulate the dummy EFTPOS machine so that it could print out sufficient material to satisfy the customer that the transaction on their individual cards had been accepted and was bona fide. Later the dummy terminal would effectively be programmed to produce a fraudulent receipt as close as possible in appearance to a legitimate receipt; it was for that reason Jeyapalasingham had obtained a legitimate receipt. Later that evening Jeyapalasingham then again contacted Krishnan and, amongst other things, told him ‘if this comes right, we’ll be able to pay off everything’.

The next day was 5 August 2011. The accused again contacted the unknown male in Canada and asked as to how the terminal could be programmed. He passed the phone to Baskaran and instructions were given by the Canadian male to Baskaran so as to adjust the settings upon the EFTPOS machine. That call demonstrates, I accept, Baskaran’s significant role as the technician in the enterprise. The accused later that day was observed in a real estate agency and around that time the lease was signed for the Harrow Road, Auburn property.

As regards to the establishment of the required ‘plausible deniability’ the co-conspirators had arranged for a person, only known to the authorities as ‘Hari’, to attend the Indian House shop. It was arranged that this person would be captured on the shop’s closed-circuit television; he would be shown to turn off the computer recording the movements inside the shop. It was necessary for Hari to sign employment forms to establish that he had been employed at the shop. Once those steps had been taken, should the authorities have been able to identify the dummy terminal used in the fraudulent transactions, the co-accused Mr Junaidy would blame the fraudulent conduct upon his fictitious employee ‘Hari’. The arrangements were that Hari would leave Australia before any of the fraudulent transactions were made on the accounts that had been compromised as a result of the use of the dummy terminal. Therefore he would not be available to be pursued by Australian police.

Co-accused Mr Krishnan’s principal role was in the procurement of the Indian student Hari. Krishnan was concerned about how Hari was to be paid; Jeyapalasingham spoke to him about that matter. He was concerned that Hari might run away with any money he was paid. Eventually Jeyapalasingham arranged with Krishnan that there would be a payment of $2,000 to Hari for doing the job and $1,000 to Krishnan for the introduction of Hari. Jeyapalasingham was to take $1,000 himself for that activity. There was discussion between Krishnan and Jeyapalasingham about Junaidy allowing for a week for the installation to occur and the payment of $20,000 to Junaidy on the basis that there would be ‘at least 300 card numbers harvested’.

Later that same day this accused spoke to Jeyapalasingham. The accused complained that the printed false receipt was ‘still coming out small’. Later the accused and Baskaran entered the Harrow Road address and their conduct within that unit was captured on the integrated recording device.

I am satisfied on the evidence tendered before me that the co-accused persons, including Jeyapalasingham, Krishnan and Junaidy, had many calls with each other trying to arrange the person Hari to turn up to the Indian House as a fictitious employee. There were also discussions as to how each of the parties would be paid. Late on 5 August 2011 Jeyapalasingham received a call from a person believed to be Mr Baig. He informed Jeyapalasingham that ‘no guy has been arranged yet’. There was conversation about continuing to search for a suitable person. There was discussion indicating that it was intended to set up the enterprise so that the finger of guilt would be pointed at the Indian student ‘Hari’. As Mr Baig said, ‘Without that guy we need someone to blame’. There were further discussions between them and the suggestion that ‘Hari’ would be offered $2,000 - $3,000. Jeyapalasingham told Mr Baig that ‘we are going to give him the fake ID’. The cost of obtaining fake identification was discussed; Jeyapalasingham said he could do it through a friend. On Saturday 6 August 2011, Jeyapalasingham spoke to Krishnan. Krishnan said that Junaidy was not happy with his agreed payment. There was a later discussion between them where Jeyapalasingham revealed that Junaidy may have another two or three locations where a compromised EFTPOS terminal could be installed. Krishnan arranged for a payment to himself as well.

Later that afternoon this accused and Jeyapalasingham discussed payments to Junaidy. This accused said he may be prepared to give Junaidy an extra $3,000 if the skimming operation was a success. He also said that he was prepared to pay $500 for a fake licence to be used by Hari; that is, amongst other things, the basis of the evidence in respect of count 4.

The next day on 7 August 2011 there were further conversations between the parties. Agreement was apparently reached that Junaidy would receive $25,000 and Krishnan $5,000.

On 8 August 2011 Baskaran called the unknown male in Canada. There was discussion about technical difficulties regarding the EFTPOS terminal. Baskaran complained that the software has a problem in that it is ‘not transferable’; that was said to relate to the printing of receipts. There was continued conversation between Thangavelautham and Baskaran which was recorded. Much of that was about utilising the boy Hari in the shop and that there was intended to be harvested between 50 and 100 credit or debit card numbers per day.

The next day, Tuesday 9 August 2011, the accused spoke with his co-accused Jeyapalasingham concerning Hari. He confirmed that ‘after five days we’ll get him the ticket’ referring to the air ticket for Hari to permanently leave Australia. Later that night the accused was observed by police to travel to the Win Mani Indian Supermarket in Merrylands and there he met with his brother Ravi. The purpose of that meeting was for the accused to receive $500 so as to pay Mr Jeyapalasingham for the false licence to be used by the person Hari. Thereafter, the accused telephoned Jeyapalasingham and said he had the $500 in cash for that licence. There were further conversations between them and it was agreed that the accused should put the money in a particular mailbox in Pendle Hill, which was at the residence of Jeyapalasingham. The accused undertook that task and at 9.19pm he spoke to Jeyapalasingham who acknowledged receipt of the $500.

The following day was 10 August. The accused on that day spoke to his brother and confirmed that he had paid money for the licence. He said to his brother that he may install the dummy EFTPOS terminal on the following Friday 12 August as it would take two days for the fake driver’s licence to be available for Hari. Later that morning Baskaran called the unknown Canadian male and informed him he had resolved the frequency issue with the machine.

In the early afternoon of 10 August Baskaran spoke to another male, unidentified and who was said to be overseas. He informed that male he had been practising on certain terminals prior to coming to Australia. He also stated that $100,000 could be made from the harvesting of 100 credit or debit card numbers. I accept the submissions of the prosecution that once the unlawful agreement is established the statements of the co-conspirators in pursuit of the aim of the conspiracy are admissible against each of the conspirators. Baskaran told the unidentified male that he was ready to do ‘a job’ but was waiting for ‘the boy’ to return. He also said that a group in Australia could make as much as $1 million equivalent in Australian currency, although he referred to Sri Lankan and Indian currency, from the installation of just one manipulated EFTPOS terminal. He also, understandably, advised that he did not want to be in Australia when the withdrawals upon the duplicate or fake cards were made.

Later that afternoon this accused called Jeyapalasingham who told him that he had obtained a photo of the boy Hari and was on his way to give it to the people whom he had organised to create the fake licence.

The next day was Thursday 11 August 2011. The co-accused Jeyapalasingham telephoned this accused and told him that he could not obtain that fake licence but had arranged an alternative transaction which would cost $800. He also stated he was continuing with organising Hari to bepaid $3,000. Later that evening Jeyapalasingham again telephoned this accused. He said he had not seen Hari face to face. He said that the boy was leaving his current job because of the money offered to him to participate in the conspiracy. This accused told Jeyapalasingham that he wanted to install the manipulated terminal the next day being Friday 12 August; clearly in the telephone call reference is made to Mr Junaidy’s Indian House grocery store as the location. This accused told Jeyapalasingham that he wanted Jeyapalasingham to personally speak to Hari. Jeyapalasingham said he would "brainwash" the boy.

The integrated device was recording the activities and conversations between this accused and Baskaran later that night. There was conversation between them about a computer terminal chip that could be used upon that EFTPOS machine. That conversation showed the knowledge of this accused concerning those chips which were said to be very valuable. The accused told Baskaran that a manufacturer of the chip could expect to make $200,000 to $300,000 from every 100 chips manufactured. The accused also revealed to Baskaran that he had chips in Australia and others in Canada and could arrange for his wife to send the chips to Australia. He also said that he wanted to acquire a transmitter with at least a 15 metre range. The benefit of that transmitter would enable this accused to capture the harvested data from the installed manipulated EFTPOS terminal. In that way the accused would not need to stand near the machine to download the harvested data. The accused said he had with him a transmitter with a range up to 50 metres which enabled him to sit in a car, nearby to the installed EFTPOS machine, and download its harvested credit or debit card data. The video shows the accused to be holding a blue coloured plastic bag; he describes to Baskaran the best way to dismantle the terminal so as to install the skimming device. Between them they discussed the importance of wearing gloves so as to avoid leaving fingerprints. They also discussed the removal of security stickers, the disarming of sensors and the use of specific tools and glue that were required to successfully complete the manipulation. There is discussion between them about their respective knowledge in that area. At one stage this accused says to Baskaran, ‘One wrong move or misbalance in your hand can result in total failure’. Later Baskaran, whilst working on the terminal, said, ‘If the wires touch each other then the terminal will sleep’, meaning it would no longer function. The prosecution relies on that captured video and audio as establishing significant technical knowledge in both this accused and the co-accused Baskaran to enable them to commit the alleged criminal offences.

The following day was Friday 12 August. Very early, just after midnight the previous day, the co-accused Baskaran called the unknown male in Canada. There were conversations about what components would be required to manufacture a chip for the ‘K23’ EFTPOS terminal. Thereafter this accused and Baskaran discussed technical aspects of manipulating EFTPOS terminals. This accused, captured on that integrated device, made a number of serious admissions against himself in my view. He said to Baskaran, ‘I organise for others to work for me and pay the money for jobs completed’. He also revealed he was planning to fly another person to Australia to assist him in the skimming operations. He explained as regards previous conduct that ‘the boys’ would be concerned that they would be captured on closed-circuit television cameras withdrawing money from automatic teller machines (‘ATM’). This clearly was referring to the use of the harvested material which would then be placed on cards to access ATMs and used to withdraw moneys from an account holder’s account. The accused revealed to Baskaran that he used to supply wigs to his boys and that they would swap those wigs each day. He said the boys would usually stay in Australia for two weeks; they would work only for five days and then depart to Malaysia or Singapore. They could return again to Australia if they were needed to withdraw money from ATMs utilising the skimmed data. I accept the Crown’s case that this conversation was clear evidence of the accused’s intention in relation to the conspiracy.

The conversation continued and the accused admitted to Baskaran that, ‘I myself have done ten lakh’. That refers to the equivalent of $1 million Australian dollars. ‘Lakh’ is said to be a currency that can be used in Sri Lanka and India. That $1 million exercise according to the accused took place in London. The accused added ‘I did not do it all by myself. Those numbers were given to me and I did the run-around. I never got into trouble. If we do the run-around with London numbers it does not concern the Canadians because it’s not a loss to them, however, the London people will be screaming. I myself have done 700 numbers in one day. I used to go there alone by myself and do it from morning to evening. It was all London numbers. I used to take out a lot’.

During the afternoon of 12 August 2011 the police continued to surveil this accused, Baskaran and the co-accused Jeyapalasingham. Later in the afternoon Jeyapalasingham, Baskaran and Thangavelautham met up with an unknown male. Later, again that afternoon, conversations between this accused and Baskaran were monitored on the integrated device at the address in Auburn. There was a conversation about programming into the terminal the shop name Indian House, along with the address, including ‘ANZ’ so that the machine would print that information on any receipt. During the course of that activity this accused was shown to be handing a credit card to Baskaran and giving him instructions as to ‘check what happens’; they discuss about the need for the innocent customers to type in a PIN number. There would then be printed the word ‘approved’ and a receipt would be printed out. A short time later the two are recorded comparing the receipt that they had just managed to print from the terminal with the original EFTPOS receipt supplied from the Indian House. They discuss about the printing of the sum of money to represent the transaction on that receipt. Having undertaken all that work this accused tells Baskaran that Junaidy, ‘won’t need anything else, we can just take it to the location’ to install it. This accused comments that the terminal is satisfactory and that the stand makes it look presentable.

As I have observed the Indian House grocery store is at 39 The Boulevarde, Strathfield. It is a small Indian convenience store / supermarket on the ground level of a two storey building. Enquiries with the Australian Securities and Investments Commission reveal that the co-accused Junaidy and another person are the directors of that business. There were four other Indian House stores in Sydney.

Later that evening at 7.15pm on Friday 12 August the accused is observed to be in the driver’s seat of a vehicle parked close to the Indian House supermarket. After some time the co-accused Junaidy exits that vehicle. He is shown to be carrying a blue plastic bag which contained a small box wrapped in cloth. I am satisfied beyond reasonable doubt that the blue plastic bag contained the manipulated EFTPOS terminal. Junaidy entered the shop. Later, police operatives observed Junaidy behind the counter serving customers and after some minutes they were able to photograph the blue plastic bag on the shop floor. Later that evening at about 10.06pm Jeyapalasingham speaks on the telephone with Junaidy. He asks him if ‘everything is okay?’ Junaidy replies, ‘everything okay, I did about four’. It is the Crown’s case, and I accept that submission, that the reference to doing ‘four’ is referring to Junaidy skimming successfully the credit or debit card data of four cards utilising the manipulated terminal. Jeyapalasingham tells Junaidy that the next day the man Hari will come to the shop. Junaidy only wants him to be there for five minutes. Jeyapalasingham then rings Thangavelautham to confirm that Junaidy has undertaken the skimming of four cards. Jeyapalasingham says, ‘Four brother’ and the accused replies in code ‘Four food, is it’ and Jeyapalasingham replies ‘yes’.

Later Junaidy telephoned Jeyapalasingham. He told him that there was a minimum of 120 customers a day during weekdays ‘so make sure you finish it in five days, on weekends I might get 200’. Jeyapalasingham stated, ‘we make 1,000 right?’. Junaidy confirmed that but said, ‘You have to be ready with money anytime’. Jeyapalasingham confirmed that ‘we need 1,000 brother’. Junaidy asked Jeyapalasingham to ‘make sure the guy is leaving the country’, referring to the person Hari. Jeyapalasingham then telephoned this accused and told him that Junaidy ‘told me to keep the cash ready, he will get us 1,000 in a week’. This accused replied, ‘Tell him we’ll pay him the money for 1,000’.

The following morning, Saturday 13 August 2013 there were a few further telephone communications between the alleged conspirators. Mr Krishnan asked Mr Jeyapalasingham, ‘Have you installed the thing’ and the reply was ‘It’s done’. Later Krishnan called to tell Jeyapalasingham that Hari’s mobile telephone was turned off. There were great efforts amongst the parties to ensure that Hari would attend the Indian House supermarket. There was a large number of telephone calls on the topic. Jeyapalasingham became more frustrated as the difficulties in ensuring Hari would attend the shop became apparent. At one stage Jeyapalasingham said to Krishnan, ‘He can’t even go there for half an hour, seriously, I will go and slap him on his ears. He’s fucking me over’. Jeyapalasingham becomes even more frustrated later. He has a telephone call with Hari. Hari told him it was not possible for him to go to the shop that Saturday because it was ‘the Rakhi festival’. Jeyapalasingham asked him to go just for ten minutes and Hari replied, ‘I don’t have interest actually’. Jeyapalasingham responds, ‘We have done the licence and everything you know, you just wasted our money and everything’. Hari said he would talk to another person before he went to the shop the next day. Jeyapalasingham then spoke with Krishnan and confirmed that Hari was saying he is not interested anymore. Jeyapalasingham says to Krishnan, ‘I am telling you now, I will definitely go and stab him and kill that dog’. In a later call to this accused Thangavelautham, Jeyapalasingham says that Hari is not interested in doing the job. He said that he had become angry and had said he would stab Hari with a knife. He added, ‘I am so angry now I will go and stab him with a knife and kill him’.

Later that day there were further communications between Mr Junaidy and Mr Jeyapalasingham; there were questions about when the boy would be turning up and how much Mr Junaidy would be paid. Later there was a conversation between this accused and Jeyapalasingham in which this accused said he would pay $25,000 on the Monday, that relating to a payment to Junaidy. In a later telephone conversation Junaidy said he would ‘not be doing it today’, referring to the job. There were further discussions between this accused and Jeyapalasingham about Hari withdrawing from his arrangement. Jeyapalasingham says that he will speak to Hari the next day and ‘if he does not agree then I will do something to him’. There were further discussions as to how they would carry out the exercise the following day.

Later that evening there were further conversations captured on the integrated surveillance device. This accused asked Baskaran for a demonstration of downloading the skimmed credit or debit card data. This accused said he was hoping to download that data every day. He said, ‘I was hoping to do it every day when he shuts the shop and bring it out with him. I was hoping to drive the car there and do it on a day-to-day basis’. I am satisfied beyond reasonable doubt that this accused was intending to download the illegally captured data from the terminal at the end of each day.

Sunday 14 August 2011 was the day that the police decided to bring the unlawful activity to an end and arrest the major participants. Police observed at 9.30am Junaidy opening the Indian House supermarket; later that morning he telephoned Jeyapalasingham. Junaidy said he wanted Hari to open the shop. He added, ‘I’m not feeling safe now’. He was hesitant about scanning any credit cards because Hari had not turned up. Jeyapalasingham instructed Junaidy that he should switch off the closed-circuit television cameras himself and then commence the skimming operation. But Junaidy replied in relation to Hari, ‘I don’t even have the declaration form yet’ referring to Hari’s employment. Later Jeyapalasingham rang Krishnan; again he threatened to stab Hari, adding ‘he won’t be able to go back to India, fucking dog, two busy days have been wasted’. There were further discussions between the participants concerning amongst other things the actual payments that would be made to Hari.

At 11.43am police observed a vehicle parked in Westmead. At that time Krishnan met this accused and Jeyapalasingham. Police approached that vehicle. There is other evidence to suggest that those persons were meeting so as to physically look for Hari, because in an earlier conversation that day Jeyapalasingham said to Krishnan ‘I will beat him up and send him to the hospital’. In any event, at 11.55am police decided to bring the matter to an end. They approached that vehicle to which I have referred, arrested this accused and the co-accused Jeyapalasingham and Krishnan. Police later arrested Baskaran at the Harrow Road address, having earlier arrested Junaidy at the Indian House supermarket.

Search warrants were executed on the Indian House supermarket and there was seized the manipulated VeriFone terminal. Examination of that terminal by Witham Laboratories, as evidenced by statements tendered before me, showed that the EFTPOS terminal appears to have been re-encoded with new software that enabled it to capture and to store or retain credit or debit card data as well as PIN data within its own internal memory. The preliminary examination revealed that the terminal had been also altered so it was not capable of communicating with any financial institution. Further, it was noted to be able to print receipts. That information was gained by using a Visa test card. The receipt identified the words ‘merchant copy, ANZ, date, time, receipt number, account number, the customer, the account, Indian House Strathfield’, and the word ‘approval’, ending with the words, ‘thank you’.

Mr Jamieson has given statements to the prosecution which were tendered before me. He is the technical manager at Witham Laboratories and he specialises in EFTPOS terminals. He examined the seized terminal. He said it showed no signs externally of being tampered with. By using a card it gave him the impression that it was operating normally and gave the ‘approved’ message. In Mr Jamieson’s opinion the program installed was designed for the capture of payment credit or debit card data. The machine … [would] pretend to communicate to the banking host and would always indicate that the transaction had been approved. I have taken into account all of Mr Jamieson’s statement - it has been the subject of some submissions.

Mr Jamieson used a password to reveal that seven sets of card data were upon the terminal. Two of those relate to the Visa test card he had used. The other data was later identified as being details of debit or credit cards using PIN issued to customers by Australian financial institutions. The bulk of the data that was downloaded was known as ‘Track 2 data’. That is the data that is required to profit from the harvesting of information.

Enquiries were then made with Australian financial institutions in relation to the data that was found upon the terminal. Two customers were identified as having shopped in the Indian House grocery store. I am satisfied beyond reasonable doubt their details were captured by the manipulated terminal when a transaction was undertaken, most likely, by Mr Junaidy.

Mr Jamieson also examined other material seized from Harrow Road in Auburn. There were five circuit board assemblies - their circuitry was designed for connection and use with magnetic stripe heads commonly used to read data. Each of them had connectors which would allow for interface with keypad underlays. He also found two wireless modem modules that were seized from Auburn and were designed for wireless communication of data.

That summarises the evidence. There was additional material, however, to which I should refer. The co-accused Junaidy has pleaded guilty and been sentenced by another Judge of this Court. He made an induced statement. I have read that tendered statement. In his statement Junaidy identifies this accused and the co-accused Mr Jeyapalasingham as having come to his shop and made offers in relation to the installation of a terminal. There was discussion about a payment of $20,000. Mr Junaidy states that he was in difficult financial straits at the time and he eventually, to his regret, agreed to their proposition. He confirmed the proposed use of the employee Hari. He identified photographs of himself, this accused and Jeyapalasingham. His statement comprehensively confirms the other material which I have summarised in the prosecution case.”

The conviction appeal

4. The sole ground of appeal on conviction was that the verdict was unreasonable. To understand the basis on which this was said to be the case, it is necessary to refer to the particulars of the charges which were sought and given. On 14 May 2014 the applicant sought the following particulars from the Crown:

a.   In what way does the crown contend that the “persons unknown” would be defrauded. In other words, what was the object and the purpose of the conspiracy in the crown case. How does the crown say that loss would be incurred or interests put at risk?

b.   Although we recognise that the crown is not required to identify any particular victim with specificity, would you please provide greater detail of who are said to be the persons “unknown” either by class or some other identifiable feature.

5. The following particulars were supplied:

a.    By deception, dishonestly obtaining the property belonging to another person/persons, namely the credit card particulars and PIN’s and/or obtaining a financial advantage or causing a financial disadvantage;

b.   Customers of the Indian House Grocery Store.

6. The essence of the appeal was that the evidence left open the possibility that the object of the conspiracy was to on-sell the customers’ data once it had been harvested. The applicant submitted that such an agreement could not constitute a conspiracy to defraud.

7. The applicant submitted that the Crown particulars were underpinned by the possibility that either on-sale of the credit card information or use of the data personally was within the contemplation of the co-conspirators. He submitted that there was a reasonable possibility that the object of the conspiracy was simply to harvest the data, with the option for it to then be on-sold. He submitted a mere agreement to harvest data without more could not constitute a conspiracy to defraud. He submitted that where the prosecutor could not establish the object was anything other than the harvesting of information, and perhaps its on-sale for reward, there cannot have been an agreement to defraud any person.

8. Counsel for the applicant pointed out that the Crown case statement mirrored the particulars in that it stated the conspiracy either involved harvesting and on-sale or harvesting and use. The statement claimed:

“these cloned credit / debit cards are used both nationally and internationally to unlawfully withdraw funds from unknown persons’ accounts. Alternatively, the card data is sold on the international market for a substantial profit.”

9. The applicant submitted, referring to R v LK [2010] HCA 17; 241 CLR 177 (LK) at [110] and R v Trudgeon (1988) 39 A Crim R 252 (Trudgeon) at 256, that the fact the parties to the agreement realised that the consequences of the agreed conduct might result in the performance of an unlawful act, or expected that the offence might take place, was insufficient to establish a criminal conspiracy. The applicant accepted that in the present case there may have been an expectation that the harvested information would be used for an unlawful purpose but submitted that such an expectation was insufficient to constitute the offence.

9. The applicant submitted that the mere obtaining of the information, namely credit card and EFTPOS card details, could not constitute a criminal conspiracy to defraud as there must be an economic interest which was put at risk. He submitted none was put at risk merely by an agreement to harvest such data.

10. Counsel for the applicant submitted that any risk to the customer did not materialise at the point of obtaining the information, although there may be a risk in the future. He submitted that the credit card data itself was not an economic interest. He submitted an economic interest was not affected until the data was in fact used.

11. Counsel for the applicant accepted that the use of the bogus ATM was deceptive and the obtaining of the credit card information was dishonest. However, he did not concede that the credit card information was property.

12. In relation to the Crown’s reliance on a conversation between the applicant and one of his co-conspirators, to which I have referred below at [15], the applicant submitted that all it demonstrated was the possibility of an arrangement to use the cards in the future and did not establish the alleged conspiracy.

13. The Crown submitted that it was not incumbent on it to prove there was an agreement to use the harvested data to clone the credit or debit cards and operate the accounts. It was submitted that the mere harvesting of the cards put the cardholders at risk of economic loss.

14. The Crown stated that if that submission was not accepted, there was incontrovertible evidence by the applicant of his intention to use the data to create cloned cards and have people use them to access accounts. The Crown relied on the following intercepted telephone conversation between the applicant and an alleged co-conspirator, Sutharsan Baskaran to the following effect:

“‘And we also need people for us to stand and work out there.’

‘… I will bring people! I will do! I will give money! I will keep controlling!’

‘… local people here will be scared to run the local numbers here! … If it is London stuff or foreign stuff, there are fantastic guys here!’

‘… If the items are from here…Then, no one from here, will come to do…To do here no one will come! ... No one will come! No one will come. Because they are scared and the reason being that it will photograph … I have good things. I have wig.

… So when our people come, it will be like that for everyone.

… I have four wigs. So if one wig for you today, then a different one for the other person … so like that it will be rotated … So they will be wearing the wig and do it, and then come back! … They will do it! Our boys will not be scared. … They will … stay just for a week. They will stay for a week or two weeks when they come.’”

Disposition

16. The circumstances in which this Court will set aside a verdict that is unreasonable are well established: See SKA v The Queen [2011] HCA 13; 243 CLR 40 at [11]-[14]; M v The Queen [1994] HCA 63; 181 CLR 487 at 493-494. These principles have been held to apply equally to judge alone trials as to jury trials: FB v The Queen [2011] NSWCCA 217 at [120].

17. In the present case, the applicant contends that both the trial judge and this Court should have had a reasonable doubt as to whether the offence of defrauding a customer was intended by the co-conspirators as distinct from them holding an expectation that such defrauding would occur as a result of their admittedly deceptive and dishonest conduct.

18. As the applicant pointed out, for the offence to be made out, it is necessary for the conspirators to have the intention to commit the offence in question: Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317 at [8]; LK at [1], [64], [117]; Peters v The Queen [1998] HCA 7; 192 CLR 493 (Peters) at [66]. Further, it is not enough for the parties to have had an expectation that the offence would be committed. Thus in Trudgeon, where the relevant charge was conspiring to supply a prohibited drug, the prosecution failed because although there was an expectation that the appellant would on-sell the drugs, there was no agreement with his alleged co-conspirator that he would do so: at 254-255.

19. In the present case, the applicant was charged with the common law offence of conspiracy to defraud. I have set out the particulars supplied by the Crown above at [5].

20. In Peters, Toohey and Gaudron JJ made the following remarks in relation to a conspiracy to defraud:

“[24]   The contention of the Model Criminal Code Officers Committee fails, in our view, to pay sufficient regard to the elements of the offence of fraud. First, it overlooks the need for the use of dishonest means or, more precisely in the context of conspiracy to defraud, the need for there to be an agreement to use dishonest means. And it also pays insufficient regard to the consideration that fraud involves an element of dishonesty over and above the use of dishonest means. Before turning to these issues, however, it is convenient to direct attention to some matters which, if not mentioned, might result in other misunderstandings with respect to the offence of conspiracy to defraud.

[25]   The first matter which should be mentioned is that, contrary to what was said by Lord Diplock in R v Scott, the offence of conspiracy to defraud is not limited to an agreement involving an intention to cause economic loss, even where the intended victim is a private person. It has always been sufficient that the accused be aware that there is a risk of economic loss. And even where the victim is a private person, there may be cases of fraud which do not involve an intention to put another person’s economic interests at risk in any ordinary sense of that term. To take an example given by King CJ in R v Kastratovic, someone who believes that a person is indebted to him and that a defence which that person is genuinely asserting is without merit, nevertheless has an intention to defraud if he intends by dishonest means to deprive that other person of the opportunity of having the matter adjudicated.

[26]   Another matter which should be noted is that it is misleading to speak in terms of the purpose of a conspiracy to defraud, particularly as the purpose of the conspirators may be quite different from the fraud perpetrated. The purpose of conspirators is usually to obtain some financial advantage; the fraud, on the other hand, is in depriving others of their property or of the opportunity to protect their interests. And, as is pointed out in Archbold, the conspirators may never intend or, even, foresee the probability that others will suffer economic loss. Rather, they may genuinely believe that there will be no loss because their venture will be brought to a successful financial conclusion to the advantage of all concerned, even those whose interests have been put at risk.

…

[33]   As already explained, ‘dishonesty’ does not appear in the statute establishing the offence of conspiracy to defraud the Commonwealth. But when properly analysed, the offence of conspiracy to defraud involves dishonesty at two levels. First, it involves an agreement to use dishonest means. Ordinarily, the means will be dishonest if they assert as true something which is false and which is known to be false or not believed to be true or if they are means which the conspirators know they have no right to use or do not believe that they have any right to use the means in question. And quite apart from the use of dishonest means, the offence involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. That, too, is dishonest by ordinary standards. If those matters are properly explained to a jury, further direction that the accused must have acted dishonestly is superfluous. Conversely, if those matters are not properly explained, a direction that the jury must be satisfied that the conspirators were dishonest is unlikely to cure the defect.”

21. Whilst McHugh J described the offence in these terms:

“[73]   Although most cases of conspiracy to defraud involve an agreement to use dishonest means which has the effect of inflicting economic loss on a third party, the infliction of such loss is not an essential element of the offence. It is sufficient that the conspirators intended to obtain some advantage for themselves by putting another person's property at risk or depriving another person of a lawful opportunity to obtain or protect property. It is also well established that a conspiracy to defraud may be established if the defendants agree to deceive a person into acting or refraining from acting contrary to his or her public duty

[74]   Thus, in most cases, a conspiracy to defraud arises when two or more persons agree to use dishonest means with the intention of obtaining, making use of or prejudicing another person's economic right or interest or inducing another person to act or refrain from acting to his or her economic detriment. Exceptionally, a conspiracy to defraud will also arise when two or more persons agree to use dishonest means to induce a third person to act or refrain from acting in contravention of the third person's public duty. In some cases, it may be sufficient that the object of the agreement to use dishonest means concerns a non-economic right or interest of a person such as private reputation or personal status. But in the vast majority of cases, conspiracies to defraud concern rights or interests having an economic value.”

22. In the present case, there can be no doubt there was an agreement to obtain the credit card details by means which were conceded to be deceptive and dishonest. Having regard to the conviction on Count 3, the means adopted by the alleged conspirators were plainly unlawful. It is also clear that the conspirators intended to obtain a financial advantage from the credit card details, whether by selling them or using the material to access the customers’ accounts.

23. As was pointed out by Toohey and Gaudron JJ in the passage cited above (Peters at [33]), the offence involves an agreement to bring about a situation prejudicing or imperilling existing legal rights or interests of others. As McHugh J pointed out, it is sufficient that the conspirators intended to take some advantage to themselves by putting another’s property at risk or depriving a person of a lawful opportunity to obtain or protect property: See also Bolitho v Western Australia [2007] WASCA 102; 34 WAR 215 at [149] [152], [159]; R v Kastratovic (1985) 42 SASR 59 at 62.

24. In the present case, there was an intention to affect customers’ economic interests or, to use the words of McHugh J in Peters, to deprive persons of a lawful opportunity to protect property. The taking of the credit card information put at risk the underlying accounts to which the cards related by providing the means for unauthorised access to those accounts. Put another way, the taking of the information deprived the credit card holders of the opportunity to protect their economic interests by keeping such information confidential, except in the case of authorised use.

25. It follows that this ground of appeal has not been made out. It is not necessary to deal with the alternative route by which the Crown suggests the same conclusion can be reached.

26. In the result, leave to appeal against conviction should be granted but the appeal dismissed.

The sentence appeal

27. The sentencing judge set out the following indicative sentences in respect of the counts on which the appellant was convicted:

Count 1:   11 years imprisonment with a non-parole period of 8 years and 3 months.

Count 2:   3 years imprisonment with a non-parole period of 2 years and 3 months.

Count 3:   4 years imprisonment with a non-parole period of 3 years.

Count 4:   18 months imprisonment with a non-parole period of 13.5 months.

28. The sentencing judge imposed an aggregate sentence of 11 years with a non-parole period of 8 years and 3 months to date from 14 August 2011 and expiring on 13 November 2019, with the balance of the term expiring on 13 August 2022.

The grounds of appeal on sentence

29. The grounds of appeal on sentence were as follows:

“2.   His Honour erred in failing to mitigate the appellant’s sentence, in view of the manner in which the trial was conducted.

3.   The applicant has a justifiable sense of grievance in the light of the sentence imposed upon the co-offender, Jeyapalasingham.

4.   The sentence imposed was manifestly excessive.”

The remarks on sentence

30. The sentencing judge set out in somewhat truncated form the conclusions he had reached in convicting the applicant. It is unnecessary to repeat what I have set out above. The sentencing judge stated that, having regard to the evidence, the applicant was set upon engaging in a conspiracy to defraud cardholders. He said that the applicant was not merely interested in setting up a dummy terminal at one store but at many.

31. Relevantly, the sentencing judge considered the involvement of Mr Junaidy, the proprietor of the grocery store at which the terminal was installed. He concluded that Mr Junaidy was “a much lesser player” than the applicant in the conspiracy. In dealing with the financial gain the co-conspirators would obtain, he concluded they were all to be rewarded but none more so than the applicant.

32. The sentencing judge referred to the fact that a single offence of obtaining advantage by deception would carry a maximum penalty of 10 years. He stated that that was something to which he could have regard in determining the penalty he should impose.

33. The sentencing judge accepted that Mr Junaidy was financially vulnerable and had accepted the opportunity to make an easy $25,000. By contrast, he said, the offender was the mastermind of the conspiracy, coming to Australia to harvest substantial sums of money and to “create a degree of havoc within our commercial system”.

34. The sentencing judge found the psychologist’s report tendered on behalf of the applicant of little assistance. He stated that no evidence had been called to support any of the information the psychologist had received.

35. The sentencing judge described the aggravating factors in respect of the offence as its extraordinary degree of sophistication and the determination exhibited by the applicant as ringleader. He concluded that the restaurant in Strathfield was not the only potential site of operation. This conclusion was not challenged.

36. The first ground of appeal was that a discount in sentence should be allowed for what was described as the applicant’s co-operation with the authorities. The sentencing judge rejected this submission in the following terms:

“It is submitted to me by Mr Lang that I should allow the offender a discount for his cooperation with the authorities. Mr Lange relies upon an authority in a different case. I cannot remotely consider that this offender cooperated with authorities. He chose, legally aided, to consent to the tender of the overwhelming amount of evidence that the prosecution had, but continued steadfastly to deny involvement in the offending behaviour. The evidence against him was overwhelming. I think it would be a nonsense to suggest that I should allow a discount for his cooperation with authorities which in my view is non-existent. There may be circumstances where a person has pleaded not guilty and can be said to require the determination of a particular issue by a Court; that person may well facilitate that determination by allowing tender of evidence. This is not such a case. The offender continues to not assist in relation to revealing his motivation. His motivation of course overwhelmingly is his financial advantage.”

37. The sentencing judge described the applicant as the driving force behind the conspiracy. He referred to the fact that he arranged his entry into Australia under a false name and had overseas contacts which he used to obtain the ATM machine and arrange for its collection. The sentencing judge also referred to the fact that he “imported Baskaran”, the technician, and engaged Jeyapalasingham as a trusted lieutenant. The sentencing judge referred to the fact that he spoke of importing “boys” to operate the ATM machines to withdraw money and was prominent in organising the “plausible deniability” scheme by the employment of the student Hari. He stated this showed a very high level of planning and sophistication. He said the applicant’s conduct occurred over a period of time and he intended to steal a substantial sum of money from the Australian banking system. His Honour referred to the need for personal and general deterrence in relation to crimes of this nature and to statements in this Court that, generally speaking, this form of conduct must attract severe punishment.

38. In relation to subjective features, the sentencing judge pointed to the fact that the applicant was 50 years of age. He stated he was cautious about accepting any evidence that the appellant’s wife and family in Canada had health problems.

39. The sentencing judge took the view that the sentences should be concurrent as the activity in Counts 2, 3 and 4 was driven towards the successful carrying out of “the aims of the conspiracy”. Fixing a non-parole period, he found there was nothing to justify making a finding of special circumstances.

The sentencing of Jeyapalasingham

40. Shortly prior to sentencing the applicant, the sentencing judge had sentenced the co-conspirator Mr Jeyapalasingham. Jeyapalasingham was in fact sentenced on two counts of conspiracy, both involving deceptive use of ATM machines. It was the second to which the applicant was a co-conspirator.

41. It is unnecessary to set out the facts surrounding the first conspiracy in any detail. As the sentencing judge pointed out, it involved arrangements including the use of dummy ATM machines so as to obtain credit card data and utilisation of the information to make unauthorised withdrawals or obtain retail goods. There were also two matters taken into account on a Form 1 dealing with the proceeds of crime relating to the theft of various terminals.

42. The second conspiracy was that which is the subject of the present appeal. In the course of his judgment the sentencing judge expressed the view that the applicant was clearly the ringleader at the Australian end. He stated, however, that Jeyapalasingham played an important role as a middleman between the applicant and the merchant Junaidy. The sentencing judge noted that Jeyapalasingham expected to obtain a substantial reward from the venture.

43. The sentencing judge pointed to the fact that Jeyapalasingham had no previous criminal convictions. He noted he was aged 37 and had been in custody for more than three years, during which time he had not breached prison discipline and that the work which he had undertaken in prison augured well for his rehabilitation. The sentencing judge took into account the plea of guilty as an acknowledgement of his serious behaviour.

44. After reviewing certain psychological evidence the sentencing judge concluded that, on balance, Jeyapalasingham had a psychological condition but was not satisfied it played any role in his decision to become involved in serious criminal conduct.

45. His Honour concluded that although the applicant was the ringleader, Jeyapalasingham played a very important role in the conspiracy. He stated he was regularly liaising with the applicant, was communicating with the merchant and played a major role in seeking out the services of the student, Hari, including obtaining fake information for that person.

46. In the result, taking into account the two Form 1 matters on the indictment charging the first conspiracy, the sentencing judge, after allowing a discount of 15 per cent for the plea of guilty, sentenced Jeyapalasingham to 3 years imprisonment. The sentencing judge found special circumstances and fixed a non-parole period of 2 years.

47. In relation to the conspiracy the subject of this appeal, the sentencing judge again after applying a discount of 15 per cent for the guilty plea, fixed a sentence of 4 years and 3 months. Finding special circumstances he fixed a non-parole period of 2 years and 10 months.

40. The sentencing judge then imposed an aggregate sentence of 6 years with a 4 year non-parole period.

The subsequent sentencing of the applicant

49. Subsequent to the applicant being sentenced for the offence the subject of this appeal, he was sentenced on three counts of obtaining money by deception contrary to s 178BA of the Crimes Act 1900 (NSW) (Crimes Act). The offence carried a maximum penalty of 5 years with no standard non-parole period. The offence involved obtaining credit card account details from an ATM at a Mobil service station which were used at various ATMs. Count 1 involved the use of 32 different cards at an ANZ ATM at Burwood. The total amount taken was $26,260. Count 2 involved similar activity at an ATM at Penrith. A total of $14,000 was obtained from 18 cards. The third count involved the use of 27 different cards at a Penrith ATM, the amount taken totalling $10,460.

50. The offences all took place prior to the offence the subject of the present appeal. The offences were committed between 14 February 2009 and 20 February 2009, the same dates on which the applicant arrived in and departed from Australia. There was also another matter on a Form 1. In total, an amount of $80,370 was withdrawn over a six day period utilising 110 card numbers.

51. In sentencing the applicant, the sentencing judge Garling ADCJ, recognised that in applying the totality principle he had to take into account the sentence imposed in the present proceedings. He stated that the penalties he would have imposed but for taking that sentence into account were terms of imprisonment of 3 years on Count 1 and 2 years and 6 months on each of Counts 2 and 3 with a non-parole period in accordance with the Act on each count. He stated that he would have made the sentences concurrent. He indicated that having regard to the principle of totality, he would impose the same head sentences but fix a non-parole period of 12 months commencing on 13 November 2019.

52. In the result, the applicant was sentenced on Count 1 to a term of 3 years with a non-parole period of 1 year to date from 13 November 2019 and in respect of Counts 2 and 3 to terms of imprisonment of 2 years and 6 months with a non-parole period of 1 year to date from 13 November 2019. The applicant was thus eligible to be considered for release to parole on 12 November 2020.

The first ground: His Honour erred in failing to mitigate the applicant’s sentence in view of the manner in which the trial was conducted

53. At the trial the applicant made no admission, nor did he indicate at any time prior to closing address the reason he was said to be not guilty of the charge. This is not to be critical of this approach. It is one which the applicant was entitled to take.

54. It is correct that the applicant did adopt an approach which limited the factual issues in dispute, avoiding the need to strictly prove documents such as the content of telephone intercepts or the calling of witnesses. Such an approach, which with respect was sensible and did no damage to the applicant’s case, is to be encouraged.

55. The applicant submitted that the trial was run on a narrow issue. However, as the Crown pointed out in its submissions, it was required to tender a large body of material as the issues in question were not identified at the outset of the proceedings. This is made clear by the comment of the judge in his sentencing remarks:

“In the course of an exchange between bench and bar table I invited Mr Lange to make a submission as to what the purpose of the activities of the conspirators was, if it were not to defraud persons unknown; he declined that invitation. I therefore went away and read all the evidence…”

56. The applicant relied on various authorities where the manner in which a trial was conducted was taken into account as part of the sentencing process. In R v Doff [2005] NSWCCA 119; 54 ACSR 200, the Court exercised its residual discretion to decline to intervene where error had been established on a Crown appeal, citing as one of the reasons the efficient way the trial was conducted, which whilst not demonstrating contrition or remorse did show a willingness to facilitate the course of justice. The Court said it did not see why it should not be taken into account for the purpose of sentencing: at [58](c).

57. In R v Nguyen & Luong [2011] NSWSC 562, McCallum J applied the same principle. Her Honour made the following remarks at [44]:

“The Crown acknowledged that the hearing was shortened as a result of concessions made by [the accused] at his trial which reduced the number of witnesses required to give evidence in the trial and enabled a deal of technical evidence to be adduced in short-hand fashion. That is a factor which, whilst not demonstrating contrition or falling strictly within the wording of section 22A of the Crimes (Sentencing Procedure) Act, shows a willingness to facilitate the course of justice and is appropriately taken into account for the purpose of sentencing.”

58. I agree that there are cases where the conduct of the offender facilitates the course of justice in a manner which can be taken into account in the sentencing process. However, it is not mandatory that it be taken into account and the extent that it warrants consideration must always be a matter for the sentencing judge.

59. In the present case, the sentencing judge acknowledged that there were circumstances where the manner in which cases were conducted facilitated the course of justice. However, His Honour determined, for the reasons I have set out above at [36], that this was not such a case. Although minds might differ on whether it was an appropriate case to allow a discount for the manner in which the trial was conducted, I do not think that the sentencing judge fell into error in reaching that conclusion.

60. It follows that this ground of appeal has not been made out.

Ground 2: The applicant has a justifiable sense of grievance in light of the sentence which was imposed on the co-offender, Jeyapalasingham

61. I have summarised above the remarks on sentence made by the sentencing judge in sentencing the applicant and Mr Jeyapalasingham.

The submissions

62. The applicant submitted that the indicative sentence imposed on Jeyapalasingham for the conspiracy for which the appellant was sentenced was 5 years prior to the 15 per cent discount for the plea of guilty. In addition, it should be noted that the non-parole period in the case of the sentence imposed on Jeyapalasingham was fixed at 66 per cent of the head sentence compared to 75 per cent in the case of the applicant.

63. It was submitted that the disparity was one which would give rise to a justifiable sense of grievance in the sense described in the authorities: Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301, 309, 323; Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 (Green & Quinn) at [28], [30]-[33].

64. Counsel for the applicant accepted that it was necessary to consider the aggregate sentence rather than the indicative sentences. However, he pointed to the fact that in the present case the sentences on the other three counts on which the applicant was convicted were to be served concurrently. In these circumstances, he submitted, it was appropriate to look at the sentence for the conspiracy charge in isolation.

65. The Crown emphasised it was necessary to have regard to the aggregate sentence imposed. It was submitted that the sense of grievance necessary to warrant appellate intervention is to be assessed by objective criteria and the Court will refuse to intervene where disparity is justified by differences between the offenders such as age, background, criminal history, general character and the part that each has played in the relevant criminal conduct. The Crown pointed to the fact that the sentencing judge was fully aware of the sentences imposed on the co-offenders.

66. The Crown identified the following differences between the position of the applicant and that of Jeyapalasingham which, it was submitted, justified the differences in sentence. First, the applicant played overwhelmingly the major role in the criminal conduct and was “at the pinnacle of the hierarchy of this particular group”. By contrast he found that Jeyapalasingham’s contribution was less than that of Baskaran, the technician, although not much less. The Crown pointed to the fact that Jeyapalasingham had the benefit of no criminal record, whilst the applicant had some prior convictions which were not said to be an aggravating factor.

67. The Crown also pointed to the fact that the sentencing judge found that Jeyapalasingham suffered from a psychological condition, although it did not play any role in his decision to engage in the conspiracy. By contrast, he found that the applicant did not suffer from any such condition. The Crown also pointed to the age difference between the two offenders.

68. The Crown also noted that the two offences on the Form 1 for Jeyapalasingham were similar to Counts 2 and 4 for which the applicant was charged whilst, unlike the applicant, Jeyapalasingham was not charged with the offence of possessing equipment to make a false document to commit forgery.

69. In these circumstances, the Crown submitted the difference in sentence was not such as to establish the basis for appellate intervention.

Disposition

70. The Crown was correct in stating that it was necessary to have regard to the aggregate sentence in considering this ground of appeal: JM v The Queen [2014] NSWCCA 297 (JM) at [40]. However, as was pointed out in that case, the indicative sentences may be a guide to whether the aggregate sentence is excessive.

71. Further, as was pointed out in Green & Quinn at [30], when sentences are compared, it is not a necessary condition to the application of the principle that the charges be formally identical. This is notwithstanding the significant practical difficulties in comparing the sentence of participants in the same criminal enterprise where they have been charged with different crimes.

72. Similarly, the principle cannot be ignored, notwithstanding the difficulties involved, in the case of aggregate sentences involving not only the same crimes but separate crimes which the persons whose sentences are being compared have committed

73. In the present case, each of the applicant and Jeyapalasingham were convicted of the same conspiracy. Two of the other three offences for which the applicant was convicted were of the same nature as those on the Form 1 for Jeyapalasingham, which was taken into account when sentencing him on the first conspiracy to which he pleaded guilty. Jeyapalasingham was given separate indicative sentences for each conspiracy but the totality principle led to a reduction in the aggregate sentence.

74. In these circumstances, it does not seem to be inappropriate to compare the respective indicative sentences for the conspiracy in dealing with the application of the parity principle. At the same time, it must be taken into account that the aggregate sentence imposed on the applicant included sentences for three further counts (albeit to be served concurrently); that the aggregate sentence imposed on Jeyapalasingham included a sentence for a further conspiracy; and that the aggregate sentence of 6 years with a non-parole period of 4 years imposed on him was reached after concluding the appropriate indicative sentences were 3 years for the first conspiracy and 4 years and 3 months for the conspiracy the subject of the present appeal.

75. The following matters can be noted. First, without allowance for the discount for the plea of guilty, the difference between the indicative sentence for the offence the subject of the appeal was 5 years for Mr Jeyapalasingham compared to 11 years for the applicant. Second, the total sentence for Mr Jeyapalasingham was 6 years, including the additional conspiracy, compared to 11 years for the applicant, including the sentences for the charges which were to be served concurrently. Further, a finding of special circumstances was made in the case of Jeyapalasingham resulting in a non-parole period of 66 per cent in respect of each indicative sentence and in respect of the aggregate sentence.

76. It seems to be that comparing these sentences would have left the applicant objectively with a justifiable sense of grievance. It is undoubtedly correct that the applicant was the ringleader and driving force in what was a sophisticated criminal undertaking. As such, it was appropriate that he received a significantly more severe sentence than Jeyapalasingham. Further, as I indicated, there were some subjective factors in the case of Jeyapalasingham which were not present in the case of the applicant, in particular that his conduct in prison augured well for his prospect of rehabilitation.

77. However, taking these matters into account it does not seem to me that the disparity in sentence was warranted. Although the applicant was the ringleader in the conspiracy, Jeyapalasingham was by no means a minor player. He played an important role, particularly in the dealings with the merchant at whose premises the fraud was committed and in procuring the student to be used to establish the plausible deniability defence and obtaining a false identification for him. Further, as the primary judge found, he liaised on a regular basis with the applicant. Nor do I think the extent of the disparity can be justified by comparison of the aggregate sentences which included additional crimes in each case.

78. In sentencing the applicant, the sentencing judge made no reference to the sentence he imposed on Jeyapalasingham and did not consider the question of parity in that context. In my opinion, he was in error in failing to do so. This ground of appeal has been made out.

Ground 3: The sentence imposed was manifestly excessive

79. Because of the view I have formed on Ground 2, this ground can be dealt with relatively briefly.

80. The applicant submitted that although the penalty for the common law offence of conspiracy was at large, the proper approach, generally speaking, was to have regard to the penalty imposed for the substantive offence: See for example Auimatagi v The Queen [2011] NSWCCA 248; 216 A Crim R 179 at [4]; Tuifua v The Queen [2008] NSWCCA 224; 189 A Crim R 1 at [2]. He submitted that the relevant substantive offence in the present case was obtaining a financial advantage by deception contrary to s 192E of the Crimes Act which carries a maximum penalty of 10 years.

81. The applicant accepted that in exceptional cases the element of concert may justify a more severe penalty for conspiracy than the penalty imposed for the substantive offence. He referred to R v Hoar [1981] HCA 67; 148 CLR 32 at 38. That case involved a conspiracy to commit a large number of illegal fishing offences which justified a larger penalty than the maximum for a single substantive offence. The applicant submitted that, unlike that case, because of the intervention of the authorities, the object of the conspiracy was never fulfilled and the sentence was thus not required to reflect a multiplicity of offending.

82. The applicant also referred, without elaboration, to judicial statistics which he submitted demonstrated the sentence imposed was not only the greatest sentence imposed for a conspiracy to defraud but exceeded the next most severe sentence by a considerable margin.

83. In my opinion, notwithstanding these submissions, the sentence imposed was not manifestly excessive in the sense of unreasonable or plainly unjust or so far outside the range of sentences available that there must have been an error in its imposition: Hili v The Queen [2010] HCA 45; 242 CLR 520 at [58]-[60].

84. The sentence imposed was imposed on the applicant as the ringleader of a sophisticated conspiracy involving the importation of both personnel and materials and which, according to the Crown case statement, which was admitted without objection at the trial, had as his object to obtain details of the data of 1,000 customers. Although this attempt was foiled, it does not lessen the seriousness of what was intended to be achieved by the conspiracy. It certainly does not require that the applicant be sentenced by reference to a single offence under s 192E of the Crimes Act.

85. The scheme also involved the recruitment of the merchant, Mr Junaidy and the Indian student, Hari, who was to be blamed for the fraudulent conduct after he had departed for India.

86. Conspiracies of this nature not only have the potential to cause serious financial hardship and embarrassment to a large number of consumers but also have the capacity to undermine confidence in this country’s financial system. It is imperative that in this context, any sentence reflects the need for general and specific deterrence. As the sentencing judge pointed out, this was the approach taken by the Court of Appeal of Western Australia in Tomov v The Queen [2011] WASCA 189. The need for severe punishment for offences of this nature has also been recognised by this Court and the Court of Appeal of Victoria: R v Araya [2005] NSWCCA 283; 155 A Crim R 555 at [96]-[98]; R v Harrower [1999] VSCA 182 at [10].

87. Further, the statistics provided are of no assistance. In Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 at [304], it was held that, although past sentences are no more than a historical statement of what has happened in the past, they can provide guidance and act as a yardstick against which to measure a proposed sentence: see also Hili at [54]. However, there can be no real guidance when the offences are different in nature to the particular offence being considered. The mere fact that the offence has involved a conspiracy to defraud does not provide such a comparison. No submission was made as to why the sentences referred to in the statistics provide a yardstick to measure the present sentence.

88. The primary judge’s findings as to the subjective features of the applicant are not in contest. They do not provide a basis for any significant mitigation of the sentence.

89. In these circumstances, the sentence was not manifestly excessive. This ground of appeal has not been made out.

Resentencing

90. Having regard to the conclusion I have reached on Ground 2 of the sentence appeal, it is necessary to resentence the applicant. The task for the Court in the present circumstances is to re-exercise the sentencing discretion to determine whether a lesser sentence is warranted in law: Kentwell v The Queen [2014] HCA 37; 252 CLR 601 at [40]-[43].

91. I have set out the reasons why I consider the offence objectively serious in dealing with the manifestly excessive ground and it is not necessary to repeat those observations. Further, there is nothing before the Court to indicate there was any error in the assessment by the sentencing judge of the subjective features pertaining to the applicant. Indeed, the material before the Court indicates that, since he was sentenced for the present offence, he has been sentenced for three offences of the same nature, which took place prior to the offence the subject of the present appeal.

92. However, the sentence imposed on Jeyapalasingham needs to be taken into account in determining the appropriate sentence for the applicant. It is appropriate, in my opinion, that a significantly greater sentence be imposed on the applicant than was imposed on his co-offender to take into account the fact that the applicant was the ringleader and guiding force behind the conspiracy. However, the disparity between his sentence and that imposed on Jeyapalasingham has at least in part been ameliorated by the application of the totality principle by Garling ADCJ in the subsequent sentencing of the applicant: see above at [50]-[51].

93. Taking all those factors into account, I am of the view that the sentence imposed on the applicant should be for a term of imprisonment of 9 years and 8 months. Like the trial judge, I am unable to find special circumstances. It follows that a non-parole period of 7 years and 3 months should be imposed. The commencement date for the sentence imposed on the applicant by Garling ADCJ should be varied such that it commences from the expiration of the non-parole period for the present offence.

90. I should add that in reaching that conclusion I have taken into account the manner in which the applicant conducted his trial. However, I consider no further reduction in sentence should be granted to allow for that fact.

91. No suggestion was made that the indicative sentences for the other counts on which the applicant was convicted were inappropriate or that those sentences should not be concurrent with a sentence for the conspiracy offence.

Orders

96. In the result I would make the following orders:

1. Grant leave to appeal against conviction.

2. Appeal against conviction dismissed.

3. Grant the applicant leave to appeal against sentence.

4. Appeal against sentence allowed.

5. Set aside the sentences imposed on the applicant by Charteris DCJ and in lieu thereof sentence the applicant to a term of imprisonment of 9 years and 8 months with a non-parole period of 7 years and 3 months to date from 14 August 2011 and to expire on 13 November 2018 with a balance of term to expire on 13 April 2021.

6. Vary the commencement date of the sentences imposed on the applicant by Garling ADCJ on 14 September 2015 to 13 November 2018.

7. The applicant will be eligible to parole on 13 November 2019.

97. HOEBEN CJ at CL: I agree with Bathurst CJ and the orders which he proposes. While I agree with RS Hulme AJ that there is a clear distinction between the role of the applicant and that of Jeyapalasingham in the offending in that the role of the applicant was substantially more important, I am of the opinion that the difference in their sentences is so great as to give rise to a justifiable sense of grievance on the part of the applicant.

98. R S HULME AJ: I have had the advantage of reading the reasons for judgment of the Chief Justice. I agree with his Honour that the appeal against conviction should be dismissed. I agree also that grounds 2 and 4 in support of the application to appeal against sentence fail. I agree with the reasons the Chief Justice has advanced for these conclusions.

99. I am however, unable to agree that the sentence imposed on the Appellant should be reduced because of any disparity with the sentence imposed on the co-offender Jeyapalasingham.

100. Credit card fraud and the taking of other peoples’ identities is a major problem. Large amounts are at stake and the offending is often difficult to detect or at least detect in a fashion enabling offending to be punished. Financial institutions and other members of the community are obliged to spend very large sums of money in attempts to forestall activities such as that in which the Appellant was engaged.

101. The account of the Appellant’s activities set forth in the Chief Justice’s judgment demonstrates what can only be described as a very carefully thought out and sophisticated operation of which he was the ring leader and which he travelled half-way around the world to set up. His aim was to defraud hundreds if not thousands of people and by doing so profit to the extent of hundreds of thousands if not millions of dollars. The sentencing judge described the Appellant’s intention as “to harvest an unlimited amount of cash from ATM machines”.

102. Mr Jeyapalasingham, while very active and, in the words of the sentencing judge, played a “very important role” was a “trusted underling” and “trusted lieutenant” and well below the entrepreneurial level of the Appellant. There is no evidence as to Mr Jeyapalasingham’s intended reward but nothing to suggest it would have approached that of the Appellant.

103. The indicative sentence for Jeyapalasingham in respect of his involvement in the Appellant’s offending of 4 years and 3 months after a 15% discount for Jeyapalasingham’s plea reflects a pre-discount figure of 5 years. I accept that there is a very considerable gap between this and the 11 years full term imposed on the Appellant and that the same may be said of the respective non-parole figures of 40 months (pre-discount) and the 8 years 3 months imposed on the offenders albeit the gap is relatively less in a comparison of the aggregate sentences imposed. However, given the difference in their roles I am a long way from being persuaded that this disparity is unjustified.

104. But even if I were persuaded that there was unjustified disparity I would not interfere so as to reduce the Appellant’s sentence. As I have indicated the rewards the Appellant hoped to achieve were huge and, but for the intervention of the police, may well have been achieved. In remarks not the subject of challenge in the appeal the sentencing judge observed:

… credit card skinning is a significant problem in our community’s commercial life;

I accept that the offending behaviour does strike at public confidence in the use of ATM machines. The misuse of credit card information has the potential to undermine public confidence in our banking system; credit and debit cards are a much used tool of modern commerce and banking;

Our society operates now by the use of credit and debit cards; it is an integral part of how we do business;

and quoted with approval remarks in Tomov v R [2011] WASCA 189 at [88]:-

International criminals and gangs and their agents … must be deterred from choosing Australia or anywhere to commit offences of this kind, especially having regard to their boss's evident access to quality equipment and the ease with which financial offences can be committed and identity fraud committed. The integrity of Australia's sovereignty, financial systems and personal financial security are all genuinely put at risk by this kind of offending.

105. With all of these remarks I agree.

106. The Chief Justice has drawn attention to the decision of the High Court in The Queen v Hoar [1981] HCA 67; 148 CLR 32. At p39, a majority of the High Court observed:-

Although the principle is that the penalty for conspiracy to commit an offence should not as a rule exceed the penalty fixed for that offence - see Verrier (1967) 2 AC, 195 - the Court must take into account the number of offences which are the object of the conspiracy. If the conspiracy is to commit but one offence, and Verrier was such a case, then the penalty to be imposed for conspiracy should not in general exceed the maximum penalty for the commission of the substantive offence. If, however, the conspiracy is to commit a number of offences then the Court for the purpose of the principle will have regard to the maximum penalty that can be imposed in respect of those offences.

107. To gain the rewards that he contemplated, the Appellant’s intention here was that innumerable offences would be committed. Judged by the magnitude of his offending and the need for general deterrence, I would regard any lesser sentence than he received as manifestly inadequate and exercise the discretion which this Court has in the case of appeals on parity grounds – see Green v The Queen [2011] HCA 49; 244 CLR 462 at [33] - not to reduce the sentence imposed.

108. In the result, I agree with orders (1)–(3) proposed by the Chief Justice but would dismiss the appeal against sentence. The consequence is that orders (5)–(7) proposed by his Honour are unnecessary and should not be made.

**********

Decision last updated: 20 July 2016