Jeyavel Thangavelautham v R

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

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

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

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

The following particulars were supplied:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Whilst McHugh J described the offence in these terms:

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

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

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

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

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

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

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

The grounds of appeal on sentence were as follows:

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

In the result I would make the following orders:

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

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

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

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

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

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

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

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

With all of these remarks I agree.

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

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

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