Yeonata v The Queen

[2012] NSWCCA 211

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

Yeonata v R [2012] NSWCCA 211

Hearing dates:

20 September 2012

Decision date:

11 December 2012

Before:

Macfarlan JA at [1]
Johnson J at [2]
Davies J at [3]

Decision:

(1) Grant leave to appeal.

(2) Appeal allowed.

(3) Quash the sentences imposed by Judge Finnane on 11 March 2011.

(4) In lieu, sentence the Appellant as follows, taking into account relevant Form 1 offences and s 16BA offences on applicable counts:

(a) For sequences 67 - 69, 74, 78, 82, 98, 112 and 131 - a non parole period of 1 year commencing 3 March 2010 and expiring 2 March 2011 with an additional term of 4 months expiring 2 July 2011;

(b) For sequences 71, 76, 77, 80, 81, 101, 107, 132 and 135 - a non parole period of 1 year and 6 months commencing 3 December 2010 and expiring 2 June 2012 with an additional term of 6 months expiring 2 December 2012;

(c) For sequences 38, 64, 66, 70, 72, 73, 75, 100, 108, 118, 119 134 and 136 - a non-parole period of 2 years commencing 3 December 2011 and expiring 2 December 2013 with an additional term of 8 months expiring 2 August 2014;

(d) For sequences 65, 79, 99, 102 and 133 - a non-parole period of 2 years and 3 months commencing 3 December 2012 and expiring 2 March 2015 with an additional term of 1 year and 8 months expiring 2 November 2016.

(e) For sequence 7 - a fixed term of 9 months imprisonment commencing 3 March 2010 and expiring 2 December 2010;

(f) For sequence 34 - a fixed term of 9 months imprisonment commencing 3 June 2010 and expiring 2 March 2011;

(g) For sequence 126 - a fixed term of 9 months imprisonment commencing 3 September 2010 and expiring 2 June 2011.

(5) In respect of sequences 65, 79, 99, 102 and 133 direct that the Appellant be released to parole on 2 March 2015.

Catchwords:

CRIMINAL LAW - sentence - 37 counts of dealing with the proceeds of crime -other offences involving identity theft - multiple Form 1 offences - whether overall sentence manifestly excessive - foreign national - relevance of deportation at conclusion of non-parole period - sentencing for multiple offences - approach to sentencing for identity theft offences

Legislation Cited:

Crimes Act 1900
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Financial Transaction Reports Act 1988

Cases Cited:

Clarke v R [2009] NSWCCA 49
Collier v R [2012] NSWCCA 213
Pearce v The Queen (1998) 194 CLR 610
R v AB (No 2) [2011] NSWCCA 256
R v Fraser [2000] NSWCCA 97
R v Guo [2010] NSWCCA 170
R v GWM [2012] NSWCCA 240
R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
R v Swadling [2004] NSWCCA 421
R v Van Hong Pham [2005] NSWCCA 94
Stevens v R [2009] NSWCCA 260
Van Haltren v The Queen [2008] NSWCCA 274

Category:

Principal judgment

Parties:

Jimmy Yeonata (Applicant)
Crown

Representation:

Counsel:
T Gartelmann (Applicant)
J Girdham (Crown)
Solicitors:
Legal Aid of NSW (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s):

2010/62415

 Decision under appeal 

Date of Decision:

2011-03-11 00:00:00

Before:

Finnane DCJ

File Number(s):

2010/62415

Judgment

1. MACFARLAN JA: I agree with Davies J.

1. JOHNSON J: I agree with Davies J.

1. DAVIES J: The Applicant pleaded guilty to 37 counts of dealing in the proceeds of crime contrary to s 193B(1) Crimes Act 1900 and three counts of opening an account with a cash dealer in a false name contrary to s 24(1) Financial Transaction Reports Act 1988 (C'th). The maximum penalty for each of the s 193B offences was 20 years imprisonment. The maximum penalty for each of the Commonwealth offences was 2 years imprisonment.

1. He was sentenced on 11 March 2011 by Judge Finnane RFD QC to a total non-parole period of six years and nine months with an additional term of 2 years and three months. It will be necessary in due course to examine the precise basis upon which his Honour sentenced the Applicant.

1. The Applicant has sought leave to appeal against the sentences on the following grounds:

1. The Judge failed properly to determine an appropriate effective non-parole period for the overall sentence.

2. The Judge failed properly to determine an appropriate sentence in respect of each offence.

3. The sentences imposed in respect of the individual offences are unreasonable and/or plainly unjust.

4. The overall sentence is unreasonable and/or plainly unjust.

The facts

1. The Applicant was an Indonesian national from Sumatra. He was in Australia illegally having entered the country using a false name. This appears to be principally because he had been in Australia once before and during that time the authorities considered that he had been engaged in fraud. He was not prosecuted but was deported back to Indonesia.

1. In his evidence before Judge Finnane he claimed that he came back to Australia to work part time at a fruit and vegetables market with a Chinese man who owned a stall. He intended to do this to make some money and to send it back to his family. The Sentencing Judge said that he did not believe this for one minute. The Sentencing Judge found him to be well educated and highly intelligent, and said that it was "improbable beyond belief" that he would have come to Australia to work as an agricultural labourer as he claimed.

1. The offences to which he pleaded guilty were committed as part of a large fraudulent scheme involving a number of persons. He came to the attention of the police in the course of an operation being conducted by the police, Australia Post and various banks that was investigating fraudulent activities. The group with which the Applicant was involved intercepted and stole posted cheques, fraudulently altered or counterfeited the cheques and deposited them into fraudulent bank accounts. When the cheques were cleared the cash would be withdrawn.

1. The Applicant's part in the scheme was to go to banks with false documents including passports in false names, birth certificates in false names, Medicare cards in false names and drivers' licences in false names. He would use those documents to open bank accounts at various banks to deposit cheques that had been stolen from the post.

1. The Applicant denied that he stole the cheques and denied that he altered the cheques. The Sentencing Judge found that there was no evidence that he did those things. Rather, the evidence showed that he deposited the cheques and then withdrew the money.

1. The Applicant said in evidence before the Sentencing Judge that he was depositing the cheques and withdrawing the money for a man of Asian origin known only by one name. He would give this man the money that he withdrew minus 5% as his own commission.

1. The police estimated that something of the order of $1 million was involved in the fraudulent transactions that the Applicant personally dealt with. The evidence was that the Applicant received $45,000 which is in fact 4.5% of $1 million.

1. The Applicant was involved in the matter from late 2009 until his arrest in March 2010.

1. The Applicant was arrested when police were alerted to his presence in a bank at Newtown. When they arrived he claimed to be Bernard Feryson and produced a fake South Australian driver's license, a fake Australian Medicare card and a Bank of Queensland ATM card without any name on it. He said that he was from Indonesia and had come to Australia in December. He said that he worked at Paddy's markets for a man called Lee doing fruit and vegetables for $600 to $700 a week and said that he was at the bank to withdraw $6,000 from his account for his friend James. When asked who James was and where he could be contacted he said he could not say but James would contact him.

1. The police quickly established the fact that the documents he had were all false and invited him to tell them the truth. He then claimed that his name was Bernard, that the money was for a friend and that he owed him money.

1. When he was arrested and cautioned he said his name was Jimmy Yeonata and his date of birth was 11 April 1980.

1. When the police fingerprinted him and crosschecked the fingerprints they found that they matched that of Johan Johan who had been arrested on 12 February 2006 and deported to Indonesia.

1. Immigration checks on the name Jimmy Yeonata revealed that someone using a legitimate passport under that name had left Australia on 18 January 2010 and had not returned.

1. In an ERISP he told police that he was seeking to withdraw the $6,000 from the Bank of Queensland at Newtown using an ATM card because a man called Tong, whom he had met six weeks before at a casino, had told him to do so. The Applicant claimed he had lost his money gambling and Tong offered to lend him money. The Applicant had accepted the money but lost at gambling again. He was then told he had to take money out of the Bank of Queensland account to pay back his debt.

1. He said he had given photographs of himself to Tong previously and he agreed that his (the Applicant's) photograph was on the driver's licence. He agreed that he had forged the signature on the withdrawal slip. He denied that he had ever been fingerprinted in 2006 as Johan Johan.

1. The Applicant had been in custody since his arrest on 3 March 2010.

Remarks on Sentence

1. The Sentencing Judge, having set out the facts already mentioned, assessed the Applicant's role in the operation. The Sentencing Judge found that the Applicant's part seemed to have been a significant one but his Honour could not be sure how significant the role was. The Judge said he did not know whether the Applicant had a planning role in it or whether he was merely a courier. Nevertheless, the Judge said that he would sentence him on the basis most favourable to the Applicant, namely that he was merely a courier.

1. The Sentencing Judge also said this:

In my opinion it is a serious matter for anybody to come to this country for the purpose of involving himself in fraud, and in my opinion that is was he did. As I have said I do not believe for one minute that he came here for the purpose of working in the fruit and vegetable markets, fell on hard times because of a bit of gambling and then just found someone who could give him a way of making money, that to me is improbable. When he was arrested he gave false names, he was carrying false documents and the false documents were not documents for Yeonata or Johan.

1. The Sentencing Judge found that the Applicant opened 20 bank accounts in ten different names, that he deposited 29 stolen and fraudulently altered cheques amounting to $1,340,863.90, and that on eight separate occasions he withdrew in total $45,000 of the stolen funds.

1. The Judge noted that the Applicant had no previous convictions in Australia or as far as could be determined anywhere else.

1. He also noted that the question of sentencing someone for such a large number of offences was a difficult one. He said he was required to impose a sentence for each offence but was also required to ensure that the Applicant did not get a sentence which, on an overall basis, was too severe for the criminality involved.

1. The Sentencing Judge made reference to R v Swadling [2004] NSWCCA 421.

1. He said that but for the discounts on sentence the Applicant should have received a sentence of 12 years imprisonment but because he pleaded guilty at an early time he was entitled to a 25% discount. The overall sentence would be, therefore, nine years with a non-parole period of six years and eight months.

1. He said that he did not make any finding of special circumstances:

Because in my opinion anybody who comes to this country for the purpose of committing a fraud is a significant criminal and for such a significant criminal no particular consideration should be given.

1. The Sentencing Judge structured the sentences in this way:

Sequence 7: A fixed term of six months imprisonment to commence 24 December 2009 and expire 23 June 2010.

Sequence 34: A fixed term of 12 months commencing 29 December 2009 and expiring 28 December 2010.

Sequence 126: A two year fixed term of imprisonment commencing 15 February 2010 and expiring 14 February 2012.

Sequence 38: A non-parole period of six months commencing 3 March 2010 and expiring 2 September 2010 with an additional term of 18 months expiring 2 March 2012.

Sequences 64-82: A non-parole period of 3 years commencing 3 June 2010 and expiring 2 June 2013 with an additional term of one year expiring 2 June 2014.

Sequences 98-102: A non-parole period of 3 years commencing 3 December 2010 and expiring 2 December 2013 with an additional term of one year expiring 2 December 2014.

Sequences 107, 108 and 112: A non-parole period of 3 years commencing 3 November 2011 and expiring 2 November 2014 with an additional term of one year and 3 months expiring 2 February 2016.

Sequences 118 - 120, 131 - 136: A non-parole period of 2 years commencing 3 November 2014 and expiring 2 November 2016 with an additional term of two years and four months expiring 2 March 2019.

1. The offences were grouped together. Sentences were imposed in respect of eight groups of offences although three of those groups contained only one offence in each group - they were the Commonwealth offences. Many but not all of the offences for which the Applicant was sentenced included Form 1 offences and offences to be taken into account under s 16BA Crimes Act 1914 (Cth). The Form 1 offences were offences ancillary to those for which the Applicant was sentenced. They included Making a False Instrument, Using a False Instrument and Possessing a False Instrument. The s 16BA offences were 17 other offences of opening an account with a cash dealer in a false name.

1. However, the precise reason for the grouping of the Form 1 offences in the way they were grouped was neither apparent from the offences themselves nor from any explanation that was provided. Although the Form 1 offences were obviously grouped by locality they did not necessarily relate to the particular offence for which they were taken into account. The number of Form 1 offences varied between as few as two in respect of one offence for which sentence was passed and as many as 12 in respect of another offence.

1. For reasons which his Honour did not identify his Honour backdated the first sentence to commence 24 December 2009. That was in fact the date at which the Applicant opened an account at Rockdale in a false name and was the subject of offence sequence 7. The date would not appear to be a relevant one because the Applicant was not arrested until 3 March 2010. He remained in custody from that time.

1. It is apparent from the sentences passed that his Honour did not maintain the statutory ratio for each group of offences for which he imposed a non-parole period and an additional term. However, the overall effect of the sentences produced the statutory ratio.

Ground 1

1. This ground appeared to be concerned with his Honour's refusal to make any finding of special circumstances for the reason his Honour gave, set out in para [29] above.

1. In R v Van Hong Pham [2005] NSWCCA 94 Wood CJ at CL (with whom Hislop and Johnson JJ agreed) said:

[13] It is established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government: R v Jap NSWCCA 20 July 1998 and R v Latumetan and Murwanto [2003] NSWCCA 70. Moreover the High Court has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71 per Deane, Dawson and Toohey JJ.

1. Accordingly, the Sentencing Judge erred in his reason for not making a finding of special circumstances. The only basis upon which he suggested he might have made such a finding was that the Applicant had no previous brushes with the criminal law in this country. However, it is doubtful if that reason alone is sufficient to justify a finding of special circumstances: Clarke v R [2009] NSWCCA 49 at [12]; Collier v R [2012] NSWCCA 213 at [35] - [36]; R v GWM [2012] NSWCCA 240 at [100] - [107].

1. Moreover, the Applicant was not able to point to any other matters which would justify a finding of special circumstances.

1. Although, as I have said, his Honour's reason for not finding special circumstances was an error, there was in fact no basis upon which special circumstances could have been found except by reason of the accumulation of the sentences. For that reason this ground is not made out.

Grounds 2 and 3

1. The Applicant submitted that the Sentencing Judge did not properly determine an appropriate sentence in respect of each offence. He pointed to the fact that there was no logic in the sentences imposed for each of the offences in the grouping of offences undertaken by his Honour.

1. To understand the extent of this it is necessary to look more closely at the individual offences and the sentences imposed.

SEQUENCE NUMBER	DATE	AMOUNT INVOLVED	NUMBER OF FORM 1 OFFENCES	SENTENCE IMPOSED
38	30/12/2009	$24,880.50	6	6 months np + 18 months
64	31/12/2009	$8,794.50	4	3 years np + 1 year
65	31/12/2009	$74,469.65	4	3 years np + 1 year
66	31/12/2009	$559.50	8	3 years np + 1 year
67	31/12/2009	$559.50	Nil	3 years np + 1 year
68	31/12/2009	$559.50	Nil	3 years np + 1 year
69	31/12/2009	$559.50	Nil	3 years np + 1 year
70	4/01/2010	$4,150	3	3 years np + 1 year
71	4/01/2010	$15,620	Nil	3 years np + 1 year
72	4/01/2010	$12,957.90	4	3 years np + 1 year
73	5/01/2010	$5,602.51	3	3 years np + 1 year
74	5/01/2010	$1,066.16	Nil	3 years np + 1 year
75	5/01/2010	$5,583.63	4	3 years np + 1 year
76	5/01/2010	$5,000	Nil	3 years np + 1 year
77	5/01/2010	$5,000	Nil	3 years np + 1 year
78	5/01/2010	$4,000	Nil	3 years np + 1 year
79	6/01/2010	$63,654.15	Nil	3 years np + 1 year
80	7/01/2010	$9,000	Nil	3 years np + 1 year
81	7/01/2010	$9,000	Nil	3 years np + 1 year
82	8/01/2010	$2,500	Nil	3 years np + 1 year
98	11/01/2010	$3,230.76	Nil	3 years np + 1 year
99	11/01/2010	$498,000	Nil	3 years np + 1 year
100	12/01/2010	$2,555.30	7	3 years np + 1 year
101	12/01/2010	$30,300	Nil	3 years np + 1 year
102	14/01/2010	$70,000	Nil	3 years np + 1 year
107	18/01/2010	$16,114.11	Nil	3 years np + 1 year & 3 months
108	20/01/2010	$30,250	12	3 years np + 1 year & 3 months
112	21/01/2010	$2,873.77	Nil	3 years np + 1 year & 3 months
118	27/01/2010	$24,917	2	2 years np + 2 years & 4 months
119	1/02/2010	$2,872.60	4	2 years np + 2 years & 4 months
131	15/02/2010	$2,700	Nil	2 years np + 2 years & 4 months
132	22/02/2010	$12,026.87	Nil	2 years np + 2 years & 4 months
133	25/02/2010	$62,999.05	4	2 years np + 2 years & 4 months
134	25/02/2010	$6,000	4	2 years np + 2 years & 4 months
135	25/02/2010	$5,000	Nil	2 years np + 2 years & 4 months
136	26/02/2010	$31,617	6	2 years np + 2 years & 4 months

1. In relation to the three offences of opening account with a cash dealer in a false name there was nothing to distinguish the three offences, except the s 16BA offences but his Honour provided respective sentences of 6 months, 12 months and 2 years for these three offences. Somewhat inexplicably the sentence of 6 months was given for the first of these three offences in respect of which 17 similar offences were taken into account pursuant to s 16 BA.

1. The Crown submitted that the sentence structure demonstrates that the sentencing Judge grouped together like offences in batches, and upon each offence within the grouping set separate sentences on each. The Crown further submitted that the order for concurrency within each batch ameliorated any disadvantage.

1. A perusal of the above table demonstrates, contrary to the Crown's submission, a lack of any logic to the sentences imposed when regard is had to the amount involved in each offence and to the number of matters taken into account on a Form 1. A comparison of offences 67 to 69 on the one hand and 99 on the other highlights the difficulty in reconciling the individual sentences. So too does a comparison of offences 82 and 133. Other examples abound.

1. The only explanation his Honour offered for the different sentences appears in relation to offences 64 to 82 where he says:

They attract a bigger sentence in each case because in my opinion each of them is a more significant offence.

With great respect to his Honour that is difficult to understand. Offence 38 involved $24,880.50 and 6 offences on a Form 1. Offences 67 to 69, for example, involved $559.50 each and no Form 1 offences. No other information was contained in the Facts before his Honour. Whilst the amount involved would not necessarily be determinant of the seriousness of the offending there was nothing else available apart from Form 1 offences attached to some but not all of the offences for which sentences were imposed.

1. There was, as noted, no other explanation for the grouping of offences.

1. In R v Swadling [2004] NSWCCA 421 this Court was dealing with sentences imposed in respect of an offender who had pleaded guilty to nine counts of larceny as a clerk and requested that a further 11 counts of larceny as a clerk be taken into account. The amounts on each of the counts the subject of the indictment varied significantly. In addition, the amounts in relation to the offences the subject of the Form 1 also varied considerably but in a number of cases exceeded the amounts in relation to some offences on the indictment. The Sentencing Judge imposed the same sentence for eight of the counts, and for the ninth offence where he took into account the 11 offences on the Form 1 he imposed a different but greater sentence.

1. An appeal was brought to this Court on the basis that the sentences imposed were not in accordance with what was said in Pearce v The Queen (1998) 194 CLR 610 and that the sentences were manifestly excessive.

1. Smart AJ (with whom Hodgson JA agreed) said in R v Swadling:

[44] The applicant relied on the much quoted passage from the judgment of McHugh, Hayne and Callinan JJ in Pearce at 624:

"A judge sentencing an offender for more than one offence must fix an appropriate sentence for each offence and then consider questions of cumulation or concurrence, as well, of course as questions of totality."

[45] Reliance was also placed on statements in this Court to the effect that this was a matter of fundamental principle: R v AEM (Snr) [2002] NSWCCA 58 at [65], R v Carr [2002] NSWCCA 434 at [35], R v Felton (2002) 135 A Crim R 328 at [20-21] and R v Wheeler [2000] NSWCCA 34 at [32]. In R v Carr Howie J suggested that if the overall sentence imposed was appropriate to reflect the totality of the criminality there would be little reason for this Court to intervene to redress the error of not applying Pearce correctly.

[46] Reliance was also placed on the remark of Sperling J (with whom Carruthers AJ agreed and Beazley JA substantially agreed) in Gorman [2002] NSWCCA 516 at [54] that it is difficult to envisage circumstances in which it would now be permissible to commence all of a series of multiple sentences on the same date.

[47] Senior counsel for the applicant referred the Court to R v Fraser [2000] NSWCCA 97 at [18], where James J said:

"Where the Court is sentencing for as many as twenty-five offences and the total effective sentence is to be only three and a half years I do not consider that the Court is required by the decision of the High Court in Pearce v The Queen to impose a series of separate sentences for each of the twenty five offences, with separate commencing dates."

[48] James J had in mind that the Court was not required to impose 25 separate sentences each of a few months.

[49] In R v Itamura [2000] NSWCCA 502 the sentencing judge had to consider some 42 offences of armed robbery. He followed the old practice of selecting one count (count 14), being one of the worst offences, and imposing a lengthy sentence on it (minimum term of 12 years and an additional term of 6 years) and imposing fixed concurrent terms of 3 years on all the other counts. There was an application for leave to appeal against the sentence of 18 years but no appeal against any of the other sentences. The sentence of 18 years was manifestly excessive. At [46] I said:

"The problem faced by a sentencing judge becomes acute where there are a large number of offences being dealt with. In Fraser [2000] NSWCCA 97 at para 18 this Court held that where the offender has been sentenced for as many as twenty five offences the Court is not obliged to impose a series of separate sentences with separate commencement dates. The idea of imposing twenty five consecutive sentences each of a few months would be both impractical and verging on the absurd. The problems are usually best overcome by making the sentences concurrent or partially cumulative and partially concurrent or by making one group of sentences on a number of charges concurrent and another group of sentences on a number of other charges, those sentences being concurrent as between themselves, cumulative on the first group. This last mentioned course was permissible at the time the judge imposed his sentences."

[50] In Johnson v The Queen (2004) 78 ALJR 616 Gummow, Callinan and Heydon JJ said at [26]

"...the joint judgment in Pearce recognises the currency of Mill by referring to the principle of totality which it reiterates. The joint judgment in Mill expresses a preference for what should be regarded as the orthodox, but not necessarily immutable, practice of fixing a sentence for each offence and aggregating them before taking the next step of determining concurrency. Pearce does not decree that a sentencing judge may never lower each sentence and then aggregate them for determining the time to be served. To do that, is not to do what the joint judgment in Pearce holds to be undesirable, that is, to have regard only to the total effective sentence to be imposed on an offender. The preferable course will usually be the one which both cases commend but neither absolutely commands. Judges of first instance should be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime under which the sentencing is effected."

[51] I would respectfully echo the need for flexibility when sentencing for multiple offences. Experience has shown that this is an area where many unforeseen difficulties can arise.

1. However, his Honour also said this:

[57] The judge undertook no analysis of the individual offences and does not appear to have given attention to each individual offence but to have adopted a global approach. This is contrary to Mill and Pearce. Re-sentencing is required.

1. It may be accepted in the present case that the Sentencing Judge had a difficult task to perform. However, even with the flexibility which is available in accordance with Swadling and a number of the cases referred to in Swadling the Sentencing Judge was, nevertheless, under an obligation to provide a proper analysis of the individual offences so that the glaring inconsistencies demonstrated in the above table could be avoided.

1. In addition, although his Honour gave the Applicant a 25% discount for an early plea the sentence he imposed for the third Commonwealth offence was the maximum penalty for that offence. Self-evidently, his Honour could not have given a discount for that offence. I have already noted that there was no explanation for the different sentences for the three Commonwealth offences. The only possible inference available is that his Honour thought each of the two subsequent offences should be more severely punished.

1. However, doubling each sentence has no regard to the totality principle as expressed in R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159 at [16]:

[16] The severity of a sentence is not simply the product of a linear relationship. That is to say severity may increase at a greater rate than an increase in the length of a sentence. As Malcolm CJ said in R v Clinch (1994) 72 A Crim R 301 at 306:

... the severity of a sentence increases at a greater rate than any increase in the length of the sentence. Thus, a sentence of five years is more than five times as severe as a sentence of one year.

1. In my opinion error has been shown in relation to the sentences for individual offences. The sentences for the individual sentences are neither appropriate nor just.

Ground 4

1. The overall sentence was nine years, two months and seven days with a non-parole period of six years, ten months and ten days. However, his Honour said in his Remarks on Sentence:

The sentence that I give him will ensure that he has an overall sentence of nine years with a non-parole period of six years and eight months.

1. The difference is almost explained, but not entirely, by the backdating of the sentence to 24 December 2009. As noted, his Honour provides no reason for having so backdated the sentence.

1. The Applicant submitted that the totality of the criminality did not warrant the overall sentence imposed. The Applicant pointed to the fact that the actual loss sustained was the $45,000 that the Applicant had received for his part in the crimes. The Applicant pointed to the relatively confined scope and duration of the Applicant's conduct, and submitted that the extent of the accumulation of the sentence exceeded what was warranted in order properly to reflect the totality of the criminality involved. The sentence was said to be crushing.

1. The seriousness of offences involving identity theft and associated offences has been stressed in a number of decisions in this Court: R v Guo [2010] NSWCCA 170; (2010) 201 A Crim R 403 at [84]-[96]; Van Haltren v The Queen [2008] NSWCCA 274; (2008) 191 A Crim R 53 at [87]-[88]; Stevens v R [2009] NSWCCA 260. Those cases emphasise the importance of general deterrence in relation to such offences.

1. In Stevens McClellan CJ at CL, with whom Spigelman CJ and Grove J agreed, said:

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

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

1. Spigelman CJ said:

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

...

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

[4] The Report highlighted the following factors:

"The rise in high speed information flows.

Globalisation.

The increased use of remote communications to transact at a distance rather than traditional face-to-face interactions.

The ease with which documents can be forged using high tech methods, and

The widespread collection and dissemination of data about individuals by private sector and other organisations, which provides opportunities for easier access to personal information."

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

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

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

The theft of personal information from computer databases.

Fake emails purporting to be from trusted organisations such as banks (known as "phishing"), requesting log on details by way of reply.

Social networking sites and instant messaging and unsolicited emails which encourage persons to divulge personal information.

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

1. Even bearing in mind those remarks, a number of matters suggest that the overall sentence was manifestly excessive. First, although the Sentencing Judge found that the Applicant's part in the criminal enterprise seemed to have been a significant one he sentenced him on the basis that he was "merely a courier". His part was to open the accounts in false names, deposit the cheques and then, on occasions, to withdraw money. There was no evidence that he stole the cheques or altered the cheques.

1. Secondly, he only withdrew some $45,000 of the deposits of more than $1,000,000. It may be accepted in this regard that had he not been arrested at the time he was more money is likely to have been withdrawn.

1. Thirdly, his Honour placed some emphasis on the fact that the Applicant came to Australia for the purpose of committing a fraud and for that reason concluded that he was entitled to "no consideration", and in particular that there should not be a finding of special circumstances.

1. Fourthly, as has been noted, the imposition of the maximum sentence for the third of the Commonwealth offences cannot be justified on any basis particularly in the light of the 25% discount for the early plea.

1. Finally, the notional starting point, given that discount, must have been an overall sentence of in excess of 12 years. Even when allowance is made for the number of offences, for the Applicant's role in the criminality and the benefit he received from it, that starting point appears to be excessive.

1. In my opinion the overall sentence imposed was manifestly excessive. Further, a number of the individual sentences were themselves manifestly excessive. It is necessary, therefore, for this Court to re-sentence the Applicant. Bearing in mind what was said in Pearce v The Queen (1998) 194 CLR 610 it is necessary to fix an appropriate sentence for each of the offences although these may be appropriately grouped: R v Fraser [2000] NSWCCA 97 at [18].

1. The only two possible considerations from the point of view of grouping of the State offences are the amounts involved and the number of Form 1 offences. It is necessary to be somewhat arbitrary for the amounts involved in setting a cut-off figure for each group. Offences in Group 1 are those involving $4,000 or less and where there are no Form 1 offences. Offences in Group 2 involve amounts between $5,000 and $30,300 and no Form 1 offences. Offences in Group 3 concern offences involving amounts up to $32,000 and Form 1 offences. Offences in Group 4 involve larger sums with or without Form 1 offences.

1. The Sentencing Judge effectively provided for complete concurrency for the Commonwealth offences - in theory, the sentence for the first Commonwealth offence commenced 3 months before the first of the State offences but that was the period of the backdating prior to the Applicant being in custody. In my opinion the criminality of the Commonwealth offences was co-extensive with the criminality of the State offences and it is appropriate to provide for concurrent sentences for those offences.

1. It was not open to the Sentencing Judge, nor is it open to this Court, to employ the aggregate sentencing provisions in s 53A Crimes (Sentencing Procedure) Act 1999 because the Applicant had pleaded guilty to the offences before those provisions commenced on 14 March 2011: R v AB (No 2) [2011] NSWCCA 256 at [14].

1. I consider that the Applicant should be sentenced as follows, taking into account relevant Form 1 offences and s 16BA offences on applicable counts:

Sequences 67-69, 74, 78, 82, 98, 112 and 131 - a non parole period of 1 year commencing 3 March 2010 and expiring 2 March 2011 with an additional term of 4 months expiring 2 July 2011;

Sequences 71,76, 77, 80, 81, 101, 107, 132 and 135 - a non parole period of 1 year and 6 months commencing 3 December 2010 and expiring 2 June 2012 with an additional term of 6 months expiring 2 December 2012;

Sequences 38, 64, 66, 70, 72, 73, 75, 100, 108, 118, 119 134 and 136 - a non-parole period of 2 years commencing 3 December 2011 and expiring 2 December 2013 with an additional term of 8 months expiring 2 August 2014;

Sequences 65, 79, 99, 102 and 133 - a non-parole period of 2 years and 3 months commencing 3 December 2012 and expiring 2 March 2015 with an additional term of 1 year and 8 months expiring 2 November 2016.

Sequence 7 - a fixed term of 9 months imprisonment commencing 3 March 2010 and expiring 2 December 2010;

Sequence 34 - a fixed term of 9 months imprisonment commencing 3 June 2010 and expiring 2 March 2011;

Sequence 126 - a fixed term of 9 months imprisonment commencing 3 September 2010 and expiring 2 June 2011.

1. The overall sentence is a non-parole period of 5 years with an additional term of 1 year and 8 months. Special circumstances are found only so far

as there is a need to vary the statutory ratio to allow for the way the sentences have been accumulated. That is reflected in the reduction of the non-parole period for the fourth group of offences.

Conclusion

1. I propose the following orders:

(1)   Grant leave to appeal.

(2)   Appeal allowed.

(3)   Quash the sentences imposed by Judge Finnane on 11 March 2011.

(4) In lieu, sentence the Appellant as follows, taking into account relevant Form 1 offences and s 16BA offences on applicable counts:

(a) For sequences 67-69, 74, 78, 82, 98, 112 and 131 - a non parole period of 1 year commencing 3 March 2010 and expiring 2 March 2011 with an additional term of 4 months expiring 2 July 2011;

(b) For sequences 71,76, 77, 80, 81, 101, 107, 132 and 135 - a non parole period of 1 year and 6 months commencing 3 December 2010 and expiring 2 June 2012 with an additional term of 6 months expiring 2 December 2012;

(c) For sequences 38, 64, 66, 70, 72, 73, 75, 100, 108, 118, 119 134 and 136 - a non-parole period of 2 years commencing 3 December 2011 and expiring 2 December 2013 with an additional term of 8 months expiring 2 August 2014;

(d) For sequences 65, 79, 99, 102 and 133 - a non-parole period of 2 years and 3 months commencing 3 December 2012 and expiring 2 March 2015 with an additional term of 1 year and 8 months expiring 2 November 2016.

(e) For sequence 7 - a fixed term of 9 months imprisonment commencing 3 March 2010 and expiring 2 December 2010;

(f) For sequence 34 - a fixed term of 9 months imprisonment commencing 3 June 2010 and expiring 2 March 2011;

(g) For sequence 126 - a fixed term of 9 months imprisonment commencing 3 September 2010 and expiring 2 June 2011.

(5)   In respect of sequences 65, 79, 99, 102 and 133 direct that the Appellant be released to parole on 2 March 2015.

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Decision last updated: 11 December 2012