Van Haltren v R

[2008] NSWCCA 274

Reported Decision: 191 A Crim R 53

New South Wales

Court of Criminal Appeal

CITATION:	Van Haltren v R [2008] NSWCCA 274
HEARING DATE(S):	12 September 2008
JUDGMENT DATE:	21 November 2008
JUDGMENT OF:	Allsop P at 1; Johnson J at 2; Price J at 92
DECISION:	Leave to appeal granted. Appeal dismissed.
CATCHWORDS:	CRIMINAL LAW - sentencing - Applicant an undischarged bankrupt - identity crime - opening accounts in false names - operating accounts in false names - obtaining credit without disclosing bankruptcy - possess false Commonwealth document with intent to use dishonestly - use false instrument - persistent course of deception over three-and-a-half years - Applicant motivated by greed - whether insufficient discount allowed for assistance to authorities - whether inadequate discount allowed for pleas of guilty - whether sentences were manifestly excessive - importance of general and personal deterrence - maintenance of integrity of bankruptcy laws - element of planning and sophistication in use of false identities - no error established - sentences not manifestly excessive - appeal dismissed
LEGISLATION CITED:	Financial Transaction Reports Act 1988 (Cth) Bankruptcy Act 1966 (Cth) Criminal Code Act 1995 (Cth) Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Corporations Act 2001 (Cth) Criminal Appeal Act 1912
CATEGORY:	Principal judgment
CASES CITED:	De Campos v R [2006] NSWCCA 51 Alchikh v R [2007] NSWCCA 345 Cameron v The Queen (2002) 209 CLR 339 Cahyadi v R (2007) 168 A Crim R 41 R v El Hani [2004] NSWCCA 162 Assafiri v R [2007] NSWCCA 159 R v Thomson and Houlton (2000) 49 NSWLR 383 R v Conway (2001) 121 A Crim R 177 R v Bugeja [2001] NSWCCA 196 R v Otto (2005) 157 A Crim R 525 Morgan v R [2007] NSWCCA 8 Ahmad v R [2006] NSWCCA 177 R v Dib [2003] NSWCCA 117 R v McDonald (1994) 71 A Crim R 370 Valentine v R [2007] NSWCCA 23 R v Watt [2005] NSWCCA 89 R v Cappadonna (2001) 122 A Crim R 52 Pearce v The Queen (1998) 194 CLR 610 Paragalli v R [2006] NSWCCA 87 R v Simpson (2001) 53 NSWLR 704 Markarian v The Queen [2005] 228 CLR 357 R v Halls (2002) 127 A Crim R 209 R v Issaac [2005] NSWCCA 86 R v Meyer (2002) 135 A Crim R 438 R v Morgan (1993) 70 A Crim R 368 R v George (2004) 149 A Crim R 38 R v Araya (2005) 155 A Crim R 555 R v Scott (1996) 131 FLR 137 R v Tadrosse [2005] NSWCCA 145 R v Knight (2005) 155 A Crim R 252
PARTIES:	Harold Thomas Van Haltren (Applicant) Regina (Respondent)
FILE NUMBER(S):	CCA 2007/5631
COUNSEL:	Mr I McLintock SC; Ms M Moody (Applicant) Mr G Farmer (Respondent)
SOLICITORS:	The People's Solicitors (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	06/11/0365
LOWER COURT JUDICIAL OFFICER:	His Honour Judge Charteris SC
LOWER COURT DATE OF DECISION:	16 November 2007

2007/5631

ALLSOP P
JOHNSON J
PRICE J

21 November 2008

Harold Thomas Van Haltren v Regina

Judgment

1 ALLSOP P: I agree with Johnson J.

2 JOHNSON J: The Applicant, Harold Thomas Van Haltren, seeks leave to appeal with respect to sentences imposed by his Honour Judge Charteris SC in the Sydney District Court on 16 November 2007.

3 The Applicant pleaded guilty to 25 offences under the Financial Transaction Reports Act 1988 (Cth) (“FTR Act”), the Bankruptcy Act 1966 (Cth) and the Criminal Code Act 1995 (Cth). In addition, he pleaded guilty to one offence under s.300(2) Crimes Act 1900 (NSW). The Applicant asked the sentencing judge to take eight other Commonwealth offences into account on sentence under s.16BA Crimes Act 1914 (Cth), together with four New South Wales offences to be taken into account on a Form 1.

4 A total head sentence of imprisonment for six years commencing 1 April 2007 and expiring 31 March 2013 was imposed. His Honour set a non-parole period of three years and nine months commencing on 1 April 2007 and expiring on 30 November 2010.

Maximum Penalties for Offences

5 The maximum penalty for each of the 26 offences included in the indictment was as follows:

(a) opening an account with a cash dealer in a false name contrary to s.24(1) FTR Act - two years’ imprisonment;

(b) operating an account with a cash dealer in a false name contrary to s.24(2) FTR Act - two years’ imprisonment;

(c) being an undischarged bankrupt who obtains credit from a person to the extent of $3,000.00 or more, without informing that person that he is an undischarged bankrupt contrary to s.269(1)(a) Bankruptcy Act 1966 (Cth) - three years’ imprisonment;

(d) being an undischarged bankrupt entering into an agreement for the leasing of goods from a person under which the sum payable amounts in the aggregate to $3,000.00 or more, without informing that person that he is an undischarged bankrupt contrary to s.269(1)(ab) Bankruptcy Act 1966 (Cth) - three years’ imprisonment;

(e) possessing a false Commonwealth document with the intention of using the document dishonestly contrary to s.145.2(5) Criminal Code Act 1995 (Cth) - 10 years’ imprisonment;

(f) using a false instrument contrary to s.300(2) Crimes Act 1900 (NSW) - 10 years’ imprisonment.

6 In passing sentence for Count 8 on the indictment, an offence under s.269(1)(a) Bankruptcy Act 1966 (Cth), the sentencing judge was asked to take into account eight other Commonwealth offences for the purposes of s.16BA Crimes Act 1914 (Cth), being offences under the following provisions:

(a) operating an account with a cash dealer in a false name contrary to s.24(2) FTR Act (four offences);

(b) possessing a false Commonwealth document with intent to use the document dishonestly contrary to s.145.2(5) Criminal Code Act 1995 (Cth) (three offences);

(c) failing to file a Statement of Affairs with the Insolvency and Trustee Service of Australia contrary to s.54(1)(b) Bankruptcy Act 1966 (Cth) (one offence) - maximum penalty five penalty units.

7 In passing sentence for Count 26 on the indictment, an offence under s.300(2) Crimes Act 1900 (NSW), the sentencing judge was asked to take into account on a Form 1 for the purposes of s.32 Crimes (Sentencing Procedure) Act 1999 (NSW), four offences of goods in custody contrary to s.527C(1)(a) Crimes Act 1900 (NSW), for which the maximum penalty is six months’ imprisonment or a fine of five penalty units or both.

Facts of Offences

8 On 21 November 2000, the Applicant was declared bankrupt. Prior to 21 November 2000, the Applicant had incurred debts to various creditors in excess of $1 million, which constituted the foundation for a creditor’s petition for him to be made bankrupt.

9 Between 15 March 2001 and September 2004, the Applicant committed the offences for which he came to be sentenced. These offences involved operating bank accounts in false names, obtaining credit in false names without informing the lender that he was an undischarged bankrupt, possession of a false instrument (a Medicare card in a false name) and one offence of using a false instrument (a stolen cheque made payable in the sum of $50,000.00). In committing these offences, the Applicant used one or other of the following false identities:

(a) Henry Thomas;

(b) Dr Henry Thomas;

(c) Henry Van Haltren;

(d) Jonathon Fiske;

(e) Jonathan Fiske.

10 On 12 July 2004, the Applicant arrived at Sydney Kingsford Smith Airport on a flight from China. Customs officers searched his bags and located several forms of identification in the names of “Jonathan Fiske” and “Jonathon Fiske”. Following the discovery of Fiske identification documents (NSW driver’s licence, Medicare card, HSBC MasterCard, American Express Card and Virgin MasterCard) in a folded envelope inside a toiletries bag, a conversation ensued between a Customs officer and the Applicant:

Officer: “And what is this?” (indicating the envelope).

Applicant: “Actually it’s my friend’s identification. He lets me use it.”

Officer: “Isn’t that illegal sir?”

Applicant: “No, no, not if you have the person’s permission.”

Officer: “Sir your friend looks like you.”

Applicant: “Actually this is my identification. I filed for bankruptcy in 2000. This is now my legitimate alias. All the companies I trade with are aware of this.”

11 The Applicant was arrested on 12 July 2004 and charged with a number of offences. Investigations continued and the Applicant was interviewed by ASIC officers on 4 August 2004, with a search warrant being executed on the Applicant’s Bellevue Hill premises on 6 August 2004. Documents were located, some of which will be referred to shortly.

12 The Crown contends that the value of the credit, loans and property which the Applicant obtained in this way was $3.979 million. The victims of the offences were able to recover some of their losses through repossession of the properties or items acquired by the Applicant. However, a precise quantification of the amount obtained by the Applicant by reason of his actions cannot be determined.

13 The brief facts of each of the 26 offences on the indictment, together with the sentence imposed for the offence, are set out in the table hereunder.

Count	Section/ Act	Date	Offence	Sentence
Count 1	s.24(2) FTR Act	Between 15 March 2001 and 8 May 2003	Operate a Global Rewards Westpac Visa account with a cash dealer, Westpac Banking Corporation, in a false name, Henry Thomas	12 months’ imprisonment from 1 April 2007 to 31 March 2008
Count 2	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 15 March 2001 and 8 May 2003	Being an undischarged bankrupt, obtaining credit in the name of Henry Thomas to the extent of $3,000.00 or more from Westpac Banking Corporation without informing Westpac that the Applicant was an undischarged bankrupt.	15 months’ imprisonment from 1 April 2007 to 30 June 2008
Count 3	s.24(2) FTR Act	Between 19 April 2001 and 25 January 2002	Operate a National Bank Flexi Account with a cash dealer, National Australia Bank, in a false name, Henry Thomas	12 months’ imprisonment from 1 June 2007 to 31 May 2008
Count 4	s.24(2) FTR Act	Between 6 June 2001 and 28 August 2002	Operate a National Flexi Plus Mortgage Professional’s Choice Account with a cash dealer, National Australia Bank, in a false name, Henry Thomas	12 months’ imprisonment from 1 June 2007 to 31 May 2008
Count 5	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 6 June 2001 and 28 August 2002	Being an undischarged bankrupt, obtaining credit in the name of Henry Thomas to the extent of $540,000.00 or more from National Australia Bank without informing that Bank that the Applicant was an undischarged bankrupt	Two years’ imprisonment from 1 June 2007 to 31 May 2009
Count 6	s.24(2) FTR Act	Between 25 July 2001 and 27 March 2003	Operate a National Bank Visa card with a cash dealer, National Australia Bank, in a false name, Henry Thomas	12 months’ imprisonment from 1 June 2007 to 31 May 2008
Count 7	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 25 July 2001 and 27 March 2003	Being an undischarged bankrupt, obtaining credit in the name of Henry Thomas to the extent of $14,968.72 or more from the National Australia Bank without informing that Bank that he was an undischarged bankrupt	15 months’ imprisonment from 1 June 2007 to 31 August 2008
Count 8	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 23 October 2001 and 27 November 2001	Being an undischarged bankrupt, obtaining credit in the name of Henry Thomas to the extent of $1,350,000.00 or more from St George Bank without informing that Bank that he was an undischarged bankrupt	Imprisonment for two years and three months from 1 August 2007 to 31 October 2009 (taking into account eight matters under s.16BA Crimes Act 1914 (Cth))
Count 9	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 9 November 2001 and 18 January 2002	Being an undischarged bankrupt, obtaining credit in the name of Access Marine Pty Limited with the sole signatory being Henry Thomas to the extent of $1,350,000.00 or more from St George Bank without informing that Bank that he was an undischarged bankrupt	Two years’ imprisonment from 1 August 2006 to 31 July 2009
Count 10	s.24(2) FTR Act	Between 4 February 2002 and 27 June 2002	Operate a St George Bank Everyday Savings Account with a cash dealer, St George Bank, in a false name, Henry Thomas	12 months’ imprisonment from 1 August 2007 to 31 July 2008
Count 11	s.24(2) FTR Act	Between 1 July 2002 and 21 October 2003	Operate a Cash Management Call Account with a cash dealer, Commonwealth Bank of Australia, in a false name, Dr Henry Thomas	12 months’ imprisonment from 1 October 2007 to 30 September 2008
Count 12	s.269(1)(ab) Bankruptcy Act 1966 (Cth)	19 February 2003	Being an undischarged bankrupt, entering into an agreement in the false name of Henry Thomas for the leasing of goods, an IBM ThinkPad from Flexi Rent Capital, being an agreement under which the amounts payable to Flexi Rent Capital amount to an aggregate of more than $3,000.00, without informing Flexi Rent Capital that he was an undischarged bankrupt	12 months’ imprisonment from 1 October 2007 to 30 September 2008
Count 13	s.24(1) FTR Act	Between 13 and 26 March 2003	Opening an American Express Gold Card Account with a cash dealer, American Express, in a false name, Henry Van Haltren	12 months’ imprisonment from 1 December 2007 to 30 November 2008
Count 14	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 26 March 2003 and 22 September 2003	Being an undischarged bankrupt, obtaining credit in the name of Henry Van Haltren to the extent of $56,300.53 or more from American Express without informing that company that he was an undischarged bankrupt	15 months’ imprisonment from 1 December 2007 to 28 February 2009
Count 15	s.24(1) FTR Act	Between 10 September 2003 and 23 October 2003	Opening an American Express Gold Card Account with a cash dealer, American Express Gold Card, in a false name, Jonathon Fiske	12 months’ imprisonment from 1 December 2007 to 30 November 2008
Count 16	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 10 September 2003 and 21 October 2003	Being an undischarged bankrupt, obtaining credit in the name of J Fiske to the extent of $65,410.23 or more from American Express by using an American Express Gold Card without informing that company that he was an undischarged bankrupt	15 months’ imprisonment from 1 December 2007 to 28 February 2009
Count 17	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 2 December 2003 and 18 March 2004	Being an undischarged bankrupt, obtaining credit in the name of Jonathan Fiske to the extent of $15,000.00 or more from Westpac by using a Virgin MasterCard without informing that Bank that he was an undischarged bankrupt	15 months’ imprisonment from 1 February 2008 to 30 April 2009
Count 18	s.24(1) FTR Act	Between 21 December 2003 and 18 March 2004	Opening a Virgin MasterCard Account with a cash dealer, Westpac, in a false name, Jonathon Fiske	12 months’ imprisonment from 1 February 2008 to 31 January 2009
Count 19	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 16 January 2004 and 24 February 2004	Being an undischarged bankrupt, obtaining credit in the name of Planhall Pty Limited to the extent of $205,000.00 or more from Suncorp Metway without informing that company that he was an undischarged bankrupt	Imprisonment for one year and nine months from 1 April 2008 to 31 December 2009
Count 20	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 16 January 2004 and 24 February 2004	Being an undischarged bankrupt, obtaining credit in the name of Planhall Pty Limited to the extent of $27,000.00 or more from BMW Australia Finance Limited without informing that company that he was an undischarged bankrupt	15 months’ imprisonment from 1 June 2008 to 31 August 2009
Count 21	s.24(1) FTR Act	3 March 2004	Opening a Citibank Cash Management Account with a cash dealer, Citibank, in the name of Planhall Pty Limited for which the sole signatory was a false name, Jonathan Fiske	12 months’ imprisonment from 1 August 2008 to 31 July 2009
Count 22	s.24(1) FTR Act	Between 11 and 17 June 2004	Opening a Citibank Ready Credit Account with a cash dealer, Citibank, in a false name, Jonathan P Fiske	12 months’ imprisonment from 1 August 2008 to 31 July 2009
Count 23	s.269(1)(a) Bankruptcy Act 1966 (Cth)	Between 17 June 2004 and 20 September 2004	Being an undischarged bankrupt, obtaining credit in the name of Jonathan Fiske to the extent of $3,000.00 or more from Citibank without information that Bank that he was an undischarged bankrupt	15 months’ imprisonment from 1 October 2008 to 31 December 2009
Count 24	s.24(2) FTR Act	24 June 2004	Opening a Commonwealth Bank Cheque Account with a cash dealer, the Commonwealth Bank, in the name of Planhall Pty Limited for which the sole signatory was a false name, Jonathon Fiske	12 months’ imprisonment from 1 December 2008 to 30 November 2009
Count 25	s.145.2(5) Criminal Code Act 1995 (Cth)	12 July 2004	Having in his possession, a false Commonwealth document, a Medicare Card in the name of Jonathon Fiske with the intention that either he or another person would use the card to dishonestly induce a person to accept the card as genuine and thereby to dishonestly obtain a gain and/or dishonestly cause a loss	Imprisonment for one year and nine months from 1 February 2009 to 31 October 2010
Count 26	s.300(2) Crimes Act 1900 (NSW)	19 February 2002	Using a false instrument, a HSBC cheque in the amount of $50,000.00 made payable to Henry Thomas, knowing that it was a false instrument with the intention of inducing the HSBC Bank to accept it as genuine and to pay the value of the cheque to their prejudice	Imprisonment for two years and nine months to date from 1 July 2010 comprising a minimum term of five months expiring on 30 November 2010 and an additional period of two years and four months to date from 1 December 2010 and expire on 31 March 2013 (taking into account four Form 1 matters under s.32 Crimes (Sentencing Procedure) Act 1999 (NSW))

14 The eight Commonwealth offences taken into account under s.16BA Crimes Act 1914 (Cth) in passing sentence on Count 8 were as follows:

Offence	Section/Act	Date	Offence
Offence 1	s.24(2) FTR Act	Between 21 October 2003 and 11 May 2004	Operating an American Express Goldcard Account with a cash dealer, American Express Gold Card, in a false name, Jonathon Fiske
Offence 2	s.24(2) FTR Act	Between 18 March 2004 and 6 August 2004	Operating a Virgin MasterCard Account with a cash dealer, Virgin Credit Cards, in a false name, Jonathon Fiske
Offence 3	s.24(2) FTR Act	Between 17 June 2004 and 20 September 2004	Operating a Citibank Ready Credit Account with a cash dealer, Citibank, in a false name, Jonathan P Fiske
Offence 4	s.24(2) FTR Act	Between 24 June 2004 and 20 August 2004	Operating a Commonwealth Bank Cheque Account with a cash dealer, Commonwealth Bank, in the name of Planhall Pty Limited for which the sole signatory was a false name, Jonathon Fiske
Offence 5	s.145.2(5) Criminal Code Act 1995 (Cth)	6 August 2004	Having in possession a false Commonwealth document, a document purporting to be a photocopy of a Medicare card in the name of Henry Thomas, with the intention that he or another person would use the card to dishonestly induce a person to accept the card as genuine and thereby to dishonestly obtain a gain and/or dishonestly cause a loss
Offence 6	s.145.2(5) Criminal Code Act 1995 (Cth)	6 August 2004	Having in possession a false Commonwealth document, a document purporting to be a photocopy of an Australian Passport in the name of Henry Thomas, with the intention that either he or another person would use the document to dishonestly induce a person to accept that document as genuine and thereby to dishonestly obtain a gain and/or dishonestly cause a loss
Offence 7	s.145.2(5) Criminal Code Act 1195 (Cth)	26 June 2003	Having in possession a false Commonwealth document, a document purporting to be a copy of an Australian Passport in the name of Henri Thomas Van Haltren, with the intention that either he or another person would use the document to dishonestly induce a person to accept that document as genuine and thereby to dishonestly obtain a gain or dishonestly cause a loss
Offence 8	s.54(1)(b) Bankruptcy Act 1966 (Cth)	3 January 2001	Failing to file a Statement of Affairs with the Insolvency and Trustee Service of Australia in relation to the Applicant’s bankruptcy

15 The following offences were taken into account, in passing sentence on Count 26, on a Form 1 under s.32 Crimes (Sentencing Procedure) Act 1999 (NSW):

Offence	Section/Act	Date	Offence
Offence 1	s.527C(1)(a) Crimes Act 1900 (NSW)	12 July 2004	Have in custody a false Driver’s Licence in the name of Jonathan Fiske reasonably suspected of being stolen or otherwise unlawfully obtained
Offence 2	s.527C(1)(a) Crimes Act 1900 (NSW)	12 July 2004	Have in custody an American Express Card in the name of J Fiske reasonably suspected of being stolen or otherwise unlawfully obtained
Offence 3	s.527C(1)(a) Crimes Act 1900 (NSW)	12 July 2004	Have in custody a Virgin MasterCard in the name of Jonathan Fiske reasonably suspected of being stolen or otherwise unlawfully obtained
Offence 4	s.527C(1)(a) Crimes Act 1900 (NSW)	12 July 2004	Have in custody a HSBC MasterCard in the name of Jonathan Fiske reasonably suspected of being stolen or otherwise unlawfully obtained

Some Findings of Fact Concerning the Offences

16 I have set out above the criminal conduct of the Applicant encompassed by the offences to which he pleaded guilty, and the additional offences which he asked to be taken into account in passing sentence. It is appropriate to mention some additional findings of fact of the sentencing judge which bear upon the Applicant’s objective criminality. These findings were not challenged in this Court.

17 His Honour found that the Applicant was well aware that he had been bankrupted at the time of committing the offences, but that he did not file a Statement of Affairs with the Insolvency and Trustee Service Australia until September 2004 following his arrest on the present matters (ROS3-4). The Applicant’s bankruptcy came to an end in September 2007 (ROS6).

18 As mentioned above (at [10]), when the Applicant was arrested on 12 July 2004, he had in his possession a driver’s licence in the name of Jonathan Fiske (bearing the Applicant’s photograph), a Medicare card in that false name together with two MasterCards and an American Express card (also in that false name). Searches of the New South Wales Registry of Births, Deaths and Marriages revealed no record of the birth of Jonathan Fiske. Department of Immigration records contain no record of the arrival or departure of such a person. The number on the driver’s licence in the Applicant’s possession (in the name of Jonathan Fiske) had been issued to another person. The Medicare card in the name of Jonathan Fiske was not a valid Medicare card number (ROS6-7).

19 A search of the Applicant’s Bellevue Hill premises by Australian Federal Police on 6 August 2004 revealed further documents in the name of Jonathan Fiske. In an interview with ASIC officers on 4 August 2004, in response to an enquiry as to the whereabouts of Jonathan Fiske, the Applicant stated that he (Fiske) was “in South Africa at the moment” and was “not due to return until the 26th but I will be speaking to him around 3.00 pm this afternoon”. The Applicant continued to represent falsely to the authorities that there was such a person as Jonathan Fiske (ROS8).

20 During the execution of the search warrant on 6 August 2004, police located a photocopy of an Australian passport in the name of Henry Thomas. The original passport has not been located, but the photograph on the copy passport was that of the Applicant. The passport number displayed on the copy document related to another person. Likewise, a Medicare card was located in the name of Henry Thomas bearing a number which related to another person.

21 Documents were found by police on 6 August 2004 in the Applicant’s premises which revealed that he had resisted earlier suggestions that he and Mr Thomas were the same person. In a letter dated August 2003, the Applicant said to Baycorp Advantage (an entity associated with American Express) that he had “a problem with being cross referenced with Mr Thomas who shares the same birthday as me and was once a close friend”. His Honour observed that a letter dated December 2002 from Henry Thomas to Baycorp Advantage (signed apparently by the Applicant) stated, somewhat ironically, that “It appears that I am the victim of a fraud” (ROS8-9).

22 His Honour Judge Charteris SC found (ROS9-10):

“The evidence before me shows that the offender utilised the names to which I have referred. For his financial advantage he deceived the credit issuers as regards his identity. His behaviour over a long period of time was nothing less than brazen; a great example of that brazenness being his representations to those who were seeking to associate him with his alias that he was a victim of identity fraud himself.”

23 His Honour provided further examples of the Applicant “brazenly attempting to deceive” credit providers. A stark example of this was as follows (ROS10):

“Indeed in August 2003 again writing a letter under the hand of Henri Van-Haltren he wrote to Baycorp Advantage and said as regards to Henry Thomas:
‘It is as obvious as the nose on my face that I am not the person in the cross reference and I am being damaged by it.’
Later that month he communicated to American Express Credit Control in the name of Henri Van-Haltren stating amongst other things:
‘For reasons unknown to me Baycorp Advantage have cross referenced me with a bankrupt person of similar name’.”

24 His Honour was satisfied that the Applicant had utilised company names for deceptive purposes and had operated bank accounts in various false names (ROS11-12).

25 The length to which the Applicant was prepared to go to aggressively defend his criminal conduct is illustrated by the following finding of the sentencing judge (ROS13):

“There was also seized during the search of the premises to which I have referred a letter addressed to American Express in August 2003 from Henri Van-Haltren. The letter alleges that Mr Henri Van-Haltren is unable to pay the outstanding account because of a cross reference with a bankrupt. Handwritten upon that letter was a note which recorded ‘If you want to go to court I am ready with a counter claim for damages’. It is apparent that the offender was on occasion prepared to bully any credit provider who was going to suggest that he and one or more of his aliases were the same person.”

26 His Honour found that the Applicant had borrowed substantial sums of money from the St George Bank to purchase real estate, with the Bank being left out of pocket in the sum of $553,507.31 following the completion of a real estate transaction (ROS14-15).

27 His Honour found that the Applicant had obtained motor vehicles by means of financing. In January 2004, through Planhall Pty Limited, the Applicant entered into a contract for the purchase of a Mini Cooper S. In January 2004, again through Planhall Pty Limited, he applied for and obtained finance of $205,000.00 to purchase a Porsche motor vehicle. In both cases, the false name Jonathan Fiske was used with a false driver’s licence being utilised for this purpose. The Porsche motor vehicle was ultimately repossessed and sold and the account due to the credit provider, Suncorp, was more than $75,000.00 in arrears after that sale (ROS16).

28 The learned sentencing judge said that the “evidence overwhelmingly establishes that the offender is very well practised in deception” (ROS19). Later, his Honour said (ROS25-26):

“I can observe that the offender committed each of the offences in a very calculating and cunning way. He utilised identity fraud. He committed the offences well knowing that he was a bankrupt. He deceived many persons working in the finance industry over a period of time. His behaviour when taken together involved him in a high level of deception for more than three years. His motivation was his greed. I have also referred to the fact that he was brazen in some of his behaviour. He sought to dissuade any attempts by any credit provider to link him to his various aliases. He threatened legal action in some cases to which I have referred.”

The Applicant’s Subjective Circumstances

29 The Applicant was born in August 1964. He was aged between 36 and 40 years at the time of the offences and was 43 years’ old at the time of sentence.

30 The Applicant has a prior criminal history. On 28 August 1991, he was fined $500.00 on each of two counts of fraud in the Perth Court of Petty Sessions. On 18 August 1992, similar fines were imposed for two further counts of fraud at the same Court. The Applicant had a number of convictions for driving offences, including drink-driving offences in 1996 and 2001. In December 2003, during the period when the present offences were being committed, the Applicant was fined at Redfern Local Court on a number of traffic offences, including stating a false name or address.

31 The sentencing judge described this as a “limited criminal record” which, having regard to the Applicant’s age, was “not a bad record at all” and concluded that the Applicant was “entitled to some mitigation in sentence having regard to that record” (ROS26-27).

32 The Applicant did not give evidence in the sentencing proceedings. Ajit Wijesinghe, an acquaintance of the Applicant, gave character evidence which his Honour observed was not of much assistance (ROS22). A number of references were tendered in the Applicant’s case on sentence.

33 Given the Applicant’s pattern of deception revealed by the offences, his Honour was “very cautious about accepting the reliability” of the Applicant’s statements concerning his history and background to the probation and parole officer or to any other person or organisation (ROS19-20).

34 Following his arrest on 12 July 2004, the Applicant remained in custody until released on bail in mid-August 2004. He remained on bail until remanded in custody on 8 June 2007 following his pleas of guilty.

The Grounds of Appeal

35 The Applicant presses three grounds of appeal:

(a) Ground 1 - insufficient discount was allowed for the Applicant’s assistance to authorities;

(b) Ground 2 - the discount for the Applicant’s pleas of guilty was inadequate;

(c) Ground 3 - the sentence is, in all the circumstances, manifestly excessive.

Ground 1 - Insufficient Discount Allowed for Assistance to Authorities

36 The Applicant was arrested on 12 July 2004 and first appeared before Central Local Court on 6 August 2004. On 27 April 2006, he was committed for trial in the Sydney District Court.

37 In 2006 and 2007, the Applicant agreed to be interviewed by Australian Federal Police. It is the assistance to the authorities said to flow from these interviews which is the subject of the first ground of appeal.

38 His Honour dealt with the Applicant’s assistance in the following way (ROS17-19):

“In April 2006 the offender submitted to interviews by investigating police: that was prior to the date listed for committal proceedings in the matters in Downing Centre Local Court. The offender made certain allegations in that interview but those were said to be of a general nature and did not specify times or locations. It is the view of both the Federal and New South Wales Police Force that the information provided by the defendant was of no value as it was of a general nature.
On 7 June 2007 the offender, a day prior to entering his pleas of guilty on the indictment, attended the Australian Federal Police Sydney office and participated in a further tape interview in the presence of his counsel and solicitor. The offender made certain denials in relation to various credit accounts that he was said to have operated. He made allegations against a person not named in the statement of facts. Police have spoken to that person who has denied the allegations. The facts detail that some of the material seized on the execution of search warrants from premises occupied by the offender is linked to some of the accounts that the offender denied operating. During the interview, the offender alleged that he had attended properties with two persons with the intention of identifying properties that could be purchased using a system of bank loans given to fictitious applicants, together with over valuation of the real estate. The offender in his interview with police however did not identify any specific properties involved. He did say that the property at Leichhardt however was subject to a valid valuation. The offender denied knowledge of certain fraudulent documents and said that he was willing to provide evidence that some documents were not completed by him. It is observed however that copies of for instance the St George bank loan application were found at his premises during a search warrant execution. A person he nominated as having completed or submitted false documents to St George has denied to police any involvement. Another person identified, said to be a mortgage manager, had left Australia in 2003 and has not been interviewed. The offender did admit to police in that second interview that he was present when documents for bank loans were altered on behalf of one of his employees.
In addition, after his plea of guilty and prior to sentencing, the offender entered into further interviews with police. I have received a document tendered in the sentencing process being Exhibit D which actually comprised two documents. It is the assertion of the relevant Federal Police Officers that the assistance given by the offender in his most recent interviews was of no value. I am asked by Mr Byrne of senior counsel, on behalf of the offender, to take into account the willingness of the offender to co-operate. I accept that although the material he has delivered in his various interviews has not, in the view of the police, been of any significant value, it is an indication that he was prepared to come forward and answer questions. I will take that into account in determining his penalty and I will give him a very slight discount for that co-operation with authorities as evidence of his regret for his involvement.”

39 A little later, his Honour said (ROS23):

“Mr Byrne of senior counsel also tendered, as I have observed, the final statement made to police made by the offender, although the police say the information provided was of ‘nil’ value. As I have observed, I will utilise that material for the purposes of being some evidence of the regret of the offender for his behaviour and his desire to co-operate.”

Applicant’s Submissions

40 Mr McClintock SC, for the Applicant, submitted that a “very slight discount” for the Applicant’s co-operation was an insufficient discount in the circumstances of the case. He submitted that there is a significant public policy in encouraging accused persons to co-operate with the police in order to expose other persons who are involved in criminal conduct: De Campos v R [2006] NSWCCA 51 at [25]. He submits that this principle applies here and that the disinclination of police to further investigate information provided by the Applicant ought not to have impacted on the assessment on the quality of the assistance, thereby reducing the discount.

41 He submits that the sentencing judge allowed a combined discount of 15% for the pleas of guilty and for the Applicant’s assistance to the authorities, and that such a combined discount was insufficient in the circumstances of the case.

Crown Submissions

42 The Crown submits that no error has been demonstrated in the manner alleged in the first ground of appeal. The police were not challenged in evidence or submissions in the District Court concerning their opinion as to the value of the information provide by the Applicant.

43 The Crown submits that the sentencing judge did not combine the discount to be allowed for the Applicant’s pleas of guilty, and his assistance to the authorities, leading to a single discount of 15%. Rather, the 15% discount was solely referrable to the Applicant’s pleas of guilty with his Honour allowing an additional “very slight discount” for his co-operation.

44 The Crown submits that it was appropriate for his Honour to consider the value, or lack of value, of the Applicant’s assistance to the authorities: Alchikh v R [2007] NSWCCA 345 at [25].

Decision

45 I accept the Crown submission that his Honour did not give a rolled-up 15% discount for the Applicant’s pleas of guilty and his co-operation with authorities. It is clear from the remarks on sentence (ROS25) that the 15% discount related solely to the Applicant’s pleas of guilty, which had utilitarian value and indicated the Applicant’s preparedness to facilitate the administration of justice: Cameron v The Queen (2002) 209 CLR 339 at 343-344 [13]-[15]; Cahyadi v R (2007) 168 A Crim R 41 at 49 [34]. The “very slight discount’ which his Honour allowed for the Applicant’s co-operation with authorities was taken into account in addition to the 15% discount in imposition of sentence.

46 The sentencing judge took into account the fact that the Applicant was prepared, long after the relevant events, to provide some information to the police. It was appropriate for his Honour to consider the value of the information provided. In accordance with usual practice, investigating police provided an assessment of the value of the material, indicating that it was of no value. This opinion was expressed after police had assessed the information provided by the Applicant. This assessment was not challenged in the District Court by cross-examination or in submissions made by the Applicant. The nature and content of the information provided by the Applicant (as outlined in the quotation at [38] above) serves to explain why little weight was given to it on sentence. Both the timing and content of the Applicant’s interviews and statement were relevant, and neither operated to assist the Applicant.

47 This is not a case like De Campos v R at [20], where the offender offered to take part in a controlled delivery of drugs, while an investigation was still on foot, but a police officer declined on the basis that it was not worth the effort in light of the likely outcome of such an operation. In that case, the offender made an unconditional offer to assist police in a practical way soon after arrest, and whilst other criminal participants were still actively involved in the offending conduct. Despite the fact that police chose not to take the matter further at the time (for reasons beyond the control of the co-operating offender), the Court said that it was appropriate that the offender be given a discount for this assistance. As Howie J (Beazley JA and Adams J agreeing) observed at [25]:

“In my view the applicant should be re-sentenced to take into account this offer of assistance although it will not always be the case that an offer that was not taken up by the police should be rewarded. It is well-known and has been well stated in numerous decisions of this Court that there is a significant public policy in encouraging people to co-operate with the police in order to expose other persons who are in the hierarchy of importing drugs into the country, particularly where those persons reside in this country.”

48 De Campos v R is not authority for the proposition that a discount ought be given in every case where an offender provides information.

49 It was open to the sentencing judge to make the findings he did and to determine that a “very slight discount” only ought be allowed for the Applicant’s assistance. Although the attempt made to assist police is one of the matters to be considered, so is the effectiveness of the assistance and its benefit to the authorities: R v El Hani [2004] NSWCCA 162 at [73]; Alchikh v R at [25]. In reality, the Applicant’s proffered assistance came late and was of no practical benefit to the police: Assafiri v R [2007] NSWCCA 159 at [20]-[23].

50 No error has been demonstrated by the Applicant in the manner in which the sentencing judge approached the Applicant’s provision of information to authorities. I would reject the first ground of appeal.

Ground 2 - The Discount for the Applicant’s Pleas of Guilty Was Inadequate

51 Consistent with my conclusion (at [45]) with respect to Ground 1, I approach Ground 2 upon the basis that his Honour allowed a discrete discount of 15% for the Applicant’s pleas of guilty.

Applicant’s Submissions

52 Mr McClintock SC submits that the discount allowed for the Applicant’s pleas of guilty was inadequate in the circumstances of this case.

53 Mr McClintock SC points to the history of the matter whereby the Applicant was charged with eight offences in August 2004. Over the ensuing eight months, at different times, a further 40 charges were laid. The Applicant pleaded not guilty in the Local Court to all charges and, on 27 April 2006, he was committed for trial in the District Court. Thereafter, various delays ensued involving the appointment of new legal representatives. At one stage, legal aid was withdrawn and further adjournments resulted. On 12 December 2006, a six-week trial was fixed to commence on 4 June 2007.

54 On 4 June 2007, the Applicant pleaded guilty to nine charges and foreshadowed pleas of guilty to further charges. On 6 June 2007, the Applicant entered a further eight pleas of guilty, and the Crown indicated that a fresh indictment was likely to be filed after the consent of the NSW Director of Public Prosecutions had been obtained. On 8 June 2007, a fresh indictment was presented containing the 26 counts to which the Applicant pleaded guilty. On the same day, the sentencing judge was asked to take into account eight Commonwealth offences for the purposes of s.16BA Crimes Act 1914 (Cth) and the State offences on the Form 1. Thereafter, the sentencing hearing proceeded on 5 October 2007 with sentence being passed on 16 November 2007.

55 In the circumstances of the case, Mr McClintock SC submits that the pleas of guilty were useful in avoiding the need for a trial with an estimate of four to six weeks. Although acknowledging that the Applicant sought a number of adjournments, he submits that these were partly a result of the Crown amending charges before the time when the Applicant entered guilty pleas. In these circumstances, he submits that the responsibility for the delay in those pleas cannot be visited entirely on the Applicant. He points to the complexity of the prosecution and contends, in the circumstances, that an inadequate discount was allowed for the Applicant’s pleas of guilty.

Crown Submissions

56 The Crown submits that the 15% discount allowed for the Applicant’s pleas of guilty was both open to the sentencing court and appropriate.

57 The Applicant did not challenge the sentencing judge’s finding that pleas had not been entered at the earliest opportunity. The matter had been listed for trial in the District Court on three occasions (30 October 2006, 13 November 2006 and 20 November 2006) with the trial being vacated on each occasion on a defence application. It was not until June 2007, some 14 months after committal, that the Applicant entered pleas of guilty. Although there was a saving of court time as a result of the guilty pleas, the matter had to be prepared for trial on each occasion.

58 The Crown submits that the sentencing judge took into account both the timing of the pleas and the particular benefits arising from the prospective length and complexity of the trial: R v Thomson and Houlton (2000) 49 NSWLR 383 at 418-419 [155], [160]. The Crown also points to the observation of Heydon JA (Bell J and Smart AJ agreeing) in R v Conway (2001) 121 A Crim R 177 at 183-184 [25] that it is not easy to succeed in a challenge to a discretionary sentencing decision upon the basis that insufficient or inadequate weight had been given to a particular factor. In circumstances where the Applicant has not demonstrated an error in principle and the result, so the Crown contends, is not plainly indicative of some error, then Ground 2 ought be rejected.

Decision

59 The Applicant pleaded guilty to 25 Commonwealth offences and one State offence, with additional Commonwealth and State offences to be taken into account for the purpose of sentence. The sentencing judge allowed a discount of 15% with respect to the Applicant’s pleas of guilty. The 15% discount took into account the utilitarian value of the pleas and the willingness of the Applicant to facilitate the course of justice.

60 It is appropriate to nominate a discount for pleas of guilty where an offender is charged with both Commonwealth and State offences: Cahyahi v R at 49 [34]. The range of discount nominated in R v Thomson and Houlton has been adopted as a reasonable range with respect to Commonwealth offences: R v Bugeja [2001] NSWCCA 196 at [28]; R v Otto (2005) 157 A Crim R 525 at 540 [69]; Morgan v R [2007] NSWCCA 8 at [21].

61 Insofar as there is criticism in this case of the percentage discount awarded, the short answer is that the Applicant has no entitlement to any particular discount: Cahyahi v R at 49 [35].

62 There was no suggestion here that the Applicant had offered a plea of guilty to any count or counts prior to June 2007. This was not a case where a plea of guilty was offered by the Applicant but rejected by the Crown, only to be accepted at a later time by the Crown: Ahmad v R [2006] NSWCCA 177 at [20]. Rather, the Applicant had denied his guilt and was committed for trial, with a trial date being fixed on three occasions thereafter, before (on the day when the trial was to commence) pleas of guilty were ultimately offered and accepted by the Crown to a large number (but not all) of the charges which had been brought against the Applicant. If a plea is entered a long time after a person is first charged, even to a lesser group of charges, the advantages to the administration of justice are less: R v Dib [2003] NSWCCA 117 at [5]-[6].

63 In my view, the sentencing judge took into account, in an appropriate fashion, the timing of the pleas, their utilitarian value and the willingness of the Applicant to facilitate the course of justice. Given the lateness of the pleas of guilty, a 15% discount was reasonably generous to the Applicant. The Applicant has failed to demonstrate that the learned sentencing judge allowed an insufficient discount by reference to the pleas of guilty.

64 I would reject the second ground of appeal.

Ground 3 - The Manifestly Excessive Ground

Applicant’s Submissions

65 Mr McClintock SC acknowledged that the Applicant’s criminal conduct was serious and took place over a significant period of time with a large amount of money being obtained. A sentence of full-time imprisonment was inevitable. He submits, however, that the length of the overall sentence imposed is manifestly excessive. In view of the discount in the order of 15%, he submits that a starting point of approximately seven years’ imprisonment was excessive.

66 Senior counsel for the Applicant drew support from the statement of Burchett and Higgins JJ in R v McDonald (1994) 71 A Crim R 370 at 379, in the context of a fraud offender, that “a first incarceration may have a very salutary effect, and the prospect that it may do so should not be left out of the count when its length is fixed”.

67 The Applicant referred to a schedule of cases provided to the sentencing judge by the Crown and noted that, with one exception, a head sentence not exceeding two years had been imposed. Mr McClintock SC submits that, by comparison with the sentences referred to in this table, the Applicant’s sentence is excessive. Whilst acknowledging the limitations inherent in relying upon other sentencing decisions, Mr McClintock SC submits that the following additional cases provide some support for the submission that the sentences imposed on the Applicant are manifestly excessive:

(a) Valentine v R [2007] NSWCCA 23 concerning sentences imposed for three counts of using a false instrument contrary to s.300(2) Crimes Act 1900 (NSW) ;

(b) R v Watt [2005] NSWCCA 89 concerning sentences imposed for 11 counts of the offender using his position dishonestly to obtain an advantage contrary to s.184(2) Corporations Act 2001 (Cth) ;

(c) R v Cappadonna (2001) 122 A Crim R 52 concerning sentences for eight offences of fraud (on the Australian Taxation Office) contrary to s.29D Crimes Act 1914 (Cth) .

68 The Applicant submits that the sentences imposed in the District Court are manifestly excessive and that this Court should intervene and resentence him by way of less severe penalties.

Crown Submissions

69 The Crown submits that the sentences imposed in this case are not manifestly excessive. The Applicant had committed a large number of offences, with different maximum penalties, and it was necessary for his Honour to have regard to the principles in Pearce v The Queen (1998) 194 CLR 610. His Honour determined the individual sentence for each offence and then turned to issues of concurrency and accumulation and the principle of totality. His Honour had regard to relevant factors for the purpose of s.16A Crimes Act 1914 (Cth).

70 His Honour was required to impose a sentence of a severity appropriate in all the circumstances of the offences: s.16A(1) Crimes Act 1914 (Cth). Those circumstances included the fact that, between March 2001 and September 2004, the Applicant used false identities (for which he had procured false identification documents such as driver’s licences, Medicare cards and passports) in order to obtain money and other benefits. He used these false identities to open and operate a number of bank accounts and to obtain credit, including real property mortgages. Both general and personal deterrence were significant factors to maintain the integrity of bankruptcy laws: Paragalli v R [2006] NSWCCA 87 at [23].

71 To the extent that the Applicant seeks to rely upon the schedule of cases provided by the Crown to the sentencing judge, the Crown submits that a review of those cases reveals the criminality involved in each of them was far less than that exhibited by the Applicant. In that sense, the Crown submits that the cases are not comparable to the present case. They provide some indication concerning penalties imposed in other cases but they do not provide true comparisons with the Applicant’s case.

72 The Crown submits that the sentences imposed upon the Applicant were within the available range of sentence and that it has not been demonstrated that the sentences were manifestly excessive.

Decision

73 The question for this Court is whether (either patent or latent) error has been demonstrated with respect to sentence and, if so, whether a positive opinion ought be formed that some other sentence is warranted in law and should have been passed: s.6(3) Criminal Appeal Act 1912; R v Simpson (2001) 53 NSWLR 704 at 719 [79].

74 The submission of the Applicant is, in reality, that the final sentences imposed were manifestly excessive and that a breach of the proportionality and totality principles may be inferred from the final result. It is said that the sentences imposed were manifestly excessive in the sense of being unreasonable or plainly unjust: Markarian v The Queen [2005] 228 CLR 357 at 370-371 [25].

75 The Applicant’s principal submission involves reliance upon other sentencing decisions, in an effort to establish a range of sentence, to support an argument that the present sentences are manifestly excessive. I do not consider that the sentencing decisions relied upon by the Applicant assist him to make good this submission.

76 The Crown provided to the sentencing judge a schedule of cases as examples of sentencing decisions for offences under the same provisions contravened by the Applicant. Sentences for offences under s.269 Bankruptcy Act 1966 (Cth) were considered in R v Halls (2002) 127 A Crim R 209, R v Issaac [2005] NSWCCA 86 and R v Paragalli. Sentences for offences under s.24 FTR Act were considered in Cahyadi v R and offences under s.300(2) Crimes Act 1900 (NSW) were considered in R v Meyer (2002) 135 A Crim R 438. It was appropriate for the Crown to provide these references to the sentencing judge, but it was equally important that the purpose for which the information was provided was kept in mind. His Honour did so in this case.

77 A note of caution has been expressed by this Court when a manifestly excessive ground is based upon comparison with sentences imposed in other cases.

78 In R v Morgan (1993) 70 A Crim R 368, Hunt CJ at CL (Allen J and Loveday AJ agreeing) said at 371:

“It is quite wrong to compare the sentence under challenge directly with that imposed upon another offender (who is not a co-offender) simply because the two offenders may have similar characteristics and may have committed similar crimes. What must be looked at is whether the challenged sentence is within the range appropriate to the objective gravity of the particular offence and to the subjective circumstances of the particular offender, and not whether it is more severe or more lenient than some other sentence (other than that of a co-offender) which merely forms part of that range.”

79 In R v George (2004) 149 A Crim R 38 at 47, the Court (Wood CJ at CL, Adams and Kirby JJ) approached a ground of appeal which invited comparison with sentences in other cases in the following way:

“We are unable to gain any meaningful assistance from a reference to these cases. It is necessary to restate that the practice, which appears to have developed in recent times, of approaching sentence appeals by a search for, and comparison with, sentences passed in other cases, is neither helpful nor justified by authority: see Regina v Morgan (1993) 70 A Crim R 368; Regina v Salameh NSWCCA 9 June 1994 and Regina v Trevenna [2004] NSWCCA 43 per Barr J at 98 to 101. At the most, other cases can do no more than become part of a range for sentencing, which in the case of manslaughter is wider than for any other offence.

The difference in objective and subjective culpability, which is found in these decisions, is such that any search for a correlation between the case at hand and another decided case is to ignore the judicial discretion which is involved in the individual sentencing exercise required. As Barr J said in Trevenna , ‘Even if it were possible to say that the culpability in two unrelated cases was the same it would not be correct to say, if the sentences were different, that for that reason alone one of them must be wrong.’ Inter alia any such approach would have to assume that the other was correct, and that is an assumption which cannot logically be made.”

80 After referring to these passages from R v Morgan and R v George, I observed in R v Araya (2005) 155 A Crim R 555 at 567 [70] (with the concurrence of Simpson and Rothman JJ):

“Similar sentiments have been expressed by this Court when arguments have been advanced on appeal comparing sentences imposed for offences of dishonesty or fraud committed by persons who are not co-offenders: R v Hawker [2001] NSWCCA 148 at paragraphs 17-18; R v Swadling [2004] NSWCCA 421 at paragraphs 29, 54; R v Martin [2005] NSWCCA 190 at paragraph 56. In each of those cases, the Court has emphasised that far greater assistance is derived from references to general sentencing policy.”

81 I do not consider that the few cases relied upon by the present Applicant establish a range of sentence for these classes of offences. The cases referred to by the Crown in the District Court were of most assistance for their statements of general sentencing policy for this class of offending.

82 Section 269 Bankruptcy Act 1966 (Cth) is intended to protect persons, in particular credit providers, dealing with an undischarged bankrupt: R v Scott (1996) 131 FLR 137 at 141-142; R v Halls at 216 [25]. Although fraudulent intent is not an element of a s.269(1) offence, the circumstances of a case (such as this) may reveal that an offender has acted in a fraudulent or dishonest way: R v Scott at 142-146; R v Issaac at [37]-[39].

83 The importance of deterrence with respect to s.269 offences has been emphasised: R v Halls at 215-216 [24]. This Court has said that both general and personal deterrence (but especially general deterrence) are significant factors in aid of maintaining the integrity of the law of bankruptcy, without which there would be serious public disadvantage of various commercial, economic and social kinds: Paragalli v R at [23].

84 The offender’s motive for committing s.269 offences is also relevant on sentence. In R v Issaac at [28], it was relevant that the offender’s motive for commission of offences was “need, as distinct from greed”. The sentencing judge found that the present Applicant was motivated by greed (see [28] above).

85 The present Applicant’s objective criminality far exceeded that revealed in the cases referred to by the Crown in the District Court.

86 The Applicant stood for sentence for a large number of serious offences committed over a lengthy period of time for personal gain, motivated by greed. His deception extended beyond the use of false identities to deceive banks and other corporate entities to the brazen denial that he was using false identities accompanied, at times, by threats of litigation against those who made such suggestions. It was entirely correct for the sentencing judge to emphasise the need for personal and general deterrence in this case.

87 The Applicant engaged in a persistent course of deception over some three-and-a-half years. A range of false identities were utilised by him for unlawful purposes. In another context, it has been observed that a proficient fraudster may be armed with forged documents, such as a driver’s licence, as proof of false identity and that this demonstrates an element of planning and sophistication and a high level of objective criminality: R v Tadrosse [2005] NSWCCA 145 at [26]; R v Araya at 571 [96]. General and specific deterrence are matters of particular importance where there is a pattern of fraudulent activity by an offender over an extended period using false identities and associated paraphernalia (such as fraudulent driver’s licences): R v Araya at 571 [98].

88 The course of criminal conduct of the Applicant involved persistent identity crime, a class of criminal conduct which has drawn particular attention in recent years: see, generally, the Final Report of the Model Criminal Law Officers’ Committee of the Standing Committee of Attorneys-General, “Identity Crime”, March 2008. Using the nomenclature of that report (at paragraph 2.2), the Applicant’s conduct involved both identity fabrication (the creation of fictitious identities) and identity manipulation (the alteration of his own identity by changing one or more elements of identity).

89 Given the number and range of offences, it was necessary for his Honour to consider questions of accumulation, concurrence and totality: Cahyahi v R at 47-48 [27]-[30]. In R v Knight (2005) 155 A Crim R 252 at 272 [112] it was said:

“It is necessary to fix an appropriate sentence for each offence and then consider questions of accumulation, concurrence and totality. The total effective sentence must represent a proper period of incarceration for the totality of the criminality involved: R v AEM [2002] NSWCCA 58 at [70]; R v Kalache (2000) 111 A Crim R 152 at 184. The mechanism of making some sentences cumulative and others concurrent (or partly so) may be used where the aggregate of sentences imposed in respect of each count exceeds the appropriate total sentence: R v Myers [2002] NSWCCA 162 at paragraph 34. At the same time, it is necessary to ensure public confidence in the administration of justice by imposing sentences which do not suggest that multiple offences will be punished in the same way as one or two offences: R v Wheeler [2000] NSWCCA 34 at paragraphs 36-37.”

His Honour applied these principles in this case. A substantial total sentence was imposed upon the Applicant, but that was the consequence of his persistent and protracted criminality motivated by greed. His Honour had proper regard to the objective circumstances of the offences and the subjective circumstances of the Applicant.

90 The Applicant has not demonstrated that the sentences imposed upon him were manifestly excessive. I reject the third ground of appeal.

Orders

91 Leave to appeal ought be granted, but the appeal should be dismissed.

92 PRICE J: I agree with Johnson J.

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