Kareem v R

1. [1]

   PRICE J: I agree with Ierace J’s reasons and the orders that his Honour proposes. This case highlights the difficulties that sentencing judges face when there are different agreed facts for co-offenders. As Ierace J points out at [87] below, the agreed facts tendered in this case were “unnecessarily complex, to a point that the differences in the roles of each offender were obscured”. At the sentencing hearing, very little effort was made by counsel to explain to her Honour the differences in the agreed facts between the co-offenders, which are made plain in [71] and [80] below. Sentencing judges, particularly in complex cases, are entitled to expect assistance from the Crown and an offender’s counsel. That assistance commences with the agreed facts.

2. [2]

   N ADAMS J: I agree with the orders proposed by Ierace J for the reasons provided. I join Price J, Ierace J and the sentencing judge in their criticism of the manner in which the applicant’s agreed facts were presented to the sentencing court. The agreed facts for the applicant did not include any details of the background to or nature of the joint criminal enterprise, both sets of agreed facts were unnecessarily complex and, as her Honour noted, they were “productive of confusion”. Her Honour was aware of the need to sentence the applicant on his agreed facts alone and clearly intended to limit the inclusion of the co-offender’s facts to the background detail which was missing from the applicant’s facts. Despite this stated intention, the background details for the co-offender, on closer analysis, included some facts which suggested that the applicant was more criminally liable than in his agreed facts. The confusing way in which the Crown case was presented led her Honour into error.

3. [3]

   This court has frequently stated that co-offenders should, where possible, be sentenced by the same judge. But when significantly different facts are negotiated for co-offenders the task for the sentencing judge can be a difficult one, especially when the different agreed facts are inconsistent and/or provide “cut-throat” versions of the facts. The sentencing judge is then left to navigate a way through them. The negotiation of agreed facts is clearly a matter for the DPP and the offender in any given case but this case highlights yet again the problems that can arise when care is not taken in the negotiation process to arrive at facts which do not make the sentencing process unnecessarily complex.

4. [4]

   IERACE J: The applicant seeks leave to appeal against an aggregate sentence of imprisonment imposed on him by Judge Baly SC (“the sentencing judge”) in the District Court, following pleas of guilty, for the following three offences:

   1. (1)

      Dishonestly causing a financial disadvantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (“the first offence”), which has a maximum penalty of 10 years imprisonment with no standard non-parole period;

   2. (2)

      Attempting to dishonestly cause a financial disadvantage by deception, contrary to s 192E(1)(b) of the Crimes Act (“the second offence”), which has the same maximum penalty as the first offence; and

   3. (3)

      Dealing with property intending that it be an instrument of crime, contrary to s 193D(1) of the Crimes Act (“the third offence”), which has a maximum penalty of 15 years imprisonment with no standard non-parole period.

5. [5]

   The indictment identified the nature of the disadvantage and the means by which it was achieved or attempted in the first two offences, which in both cases was a reduction in the assets of the ANZ Bank by the applicant falsely representing the identities of various applicants for credit.

6. [6]

   The applicant was sentenced to an aggregate term of imprisonment of 4 years, commencing on the date of sentence, 16 December 2020, and expiring on 15 December 2024, with a non-parole period of 2 years and 4 months. He will be eligible for release to parole on 15 April 2023. The indicative sentences were 3 years and 9 months imprisonment for the first offence, 1 year and 11 months imprisonment for the second offence and 2 years and 8 months imprisonment for the third offence.

7. [7]

   It was alleged that the offences were part of a scheme that was established by Imtiaz Malik (“the co-offender”) in 2013 and continued until August 2017. The co-offender pleaded guilty to the same three offences and was sentenced at the same time. He received an aggregate sentence of 5 years and 6 months, with a non-parole period of 3 years 6 months. The indicative sentences were 4 years and 9 months for the first offence, 2 years and 7 months for the second offence, and 3 years and 4 months for the third offence.

8. [8]

   The applicant sought leave to appeal his sentence on three grounds, which are as follows:

   1. (1)

      The sentencing judge erred in sentencing the applicant on the basis of material contained in the co-offender’s statement of facts.

   2. (2)

      The sentencing judge erred in finding that the applicant used his “skills as an accountant” to commit the offences

   3. (3)

      The sentencing judge erred in failing to have proper regard to the hardship to the applicant’s family that was likely to result as a consequence of the applicant’s imprisonment both as to:

Factual background

1. [9]

   Separate statements of agreed facts, with different content, were tendered by the Crown in respect of each offender. The statement of facts in relation to the applicant (“the applicant’s agreed facts”) is to the following effect.

2. [10]

   The applicant migrated to Australia from Pakistan in 2001, when he was aged about 21. He was granted citizenship in 2006. He obtained accounting qualifications (Bachelor’s degrees in Business and Commerce) from an Australian university. The applicant was employed throughout the period of the offending. At the time of his arrest, he was a financial controller in a business in Sydney.

3. [11]

   When the applicant was a student, he met the co-offender through the Australian/Pakistani community. The applicant respected the co-offender, who is 16 years older than him, as an elder member of the Pakistani/Australian community.

4. [12]

   In 2013, the co-offender “advised [the applicant] about a proposed business”. The business was registered in March 2013 as Kareem Enterprises. Its principal place of business was listed as an address associated with the co-offender (“the Smithfield address”), and the nominated address for service of documents was the applicant’s residential address at that time.

5. [13]

   At the co-offender’s request, the applicant opened a business cheque account in his (the applicant’s) name, trading as Kareem Enterprises, with the National Australia Bank (“NAB”). The co-offender told the applicant he could not open the account because he had “a prior record” (the co-offender’s criminal record, which was tendered in the applicant’s case, disclosed convictions for fraud offences committed in 1998 and 1999). The postal address for the account was the Smithfield address. The applicant was the sole signatory. He provided the online user ID and password to the co-offender. In 2015, the postal address was changed to another address associated with the co-offender (“the Bonnyrigg address”).

6. [14]

   In April 2016, a further bank account associated with the applicant, trading as Kareem Enterprises, was opened with the NAB. The postal address was the Bonnyrigg address and the applicant gave the necessary information to access the account to the co-offender, who was “to look after the bank statements and the account”.

7. [15]

   In early March 2014, the co-offender approached the applicant to assist him to set up a company, Divergent Trading Pty Ltd. It was registered on 4 March 2014. The co-offender registered “Zeeshan KARIM” as the secretary and the co-offender’s son as the director. At a later date, both Kareem Enterprises and Divergent Trading Pty Ltd nominated an address leased by the co-offender’s son as their mailing address.

8. [16]

   From May 2013, the co-offender opened bank accounts using false identities and, through them, applied for loans and credit cards. The first false bank account, which was a cheque account, was opened on 14 May 2013. The account was opened using a false pension card and Energy Australia bill to establish a false identity, with Kareem Enterprises being nominated as the person’s employer. A “salary” was paid into the account from the Kareem Enterprises NAB account in order to create a false salary profile to justify a bank loan; a practice known as “salary staging”. On 26 June 2013, an application for a personal loan in the amount of $22,884 was declined. On 5 July 2013, an application for a credit card with a limit of $5,000 was submitted and declined. The salary staging for that identity ceased on 10 July 2013.

9. [17]

   The second attempt, using the same modus operandi, in which a cheque account was opened on 28 November 2013, was successful. A personal loan application for $20,150 and a credit card application with a credit limit of $6,000 were approved. Later attempts to increase the credit card limit, and an application for a second personal loan in the sum of $32,290, were declined.

10. [18]

    The applicant’s agreed facts set out the detail of the establishment of 13 other accounts; the date each account was opened, the dates that salary staging occurred, the dates of loan and/or credit card applications and the amounts sought and the results of the applications. The last account was established on 5 April 2017. The last fraudulent application for credit was made on 1 August 2017.

11. [19]

    The applicant’s role in the scheme was to be gleaned from the applicant’s agreed facts, which were to the effect that he was a member of the joint criminal enterprise from its inception in 2013, initially to a limited extent, but by late 2015 as a fully cognisant participant. The references in that document to acts done by the applicant knowingly in furtherance of the joint criminal enterprise commence following the co-offender starting to open accounts in false names in 2013 and transferring money from Kareem Enterprises under the guise of salary payments and then withdrawing funds. Relevant aspects of the applicant’s agreed facts from that point on were as follows:

12. [20]

    In relation to the reference in par 20 to the applicant and co-offender exchanging text messages, the applicant’s agreed facts reproduce some that were exchanged in relation to 13 of the 15 false identities. The earliest in time were in September 2015, concerning a false bank account that was established in August 2014. Following the grant of a credit card with a limit of $6,000, on 4 September 2015, the co-offender texted the applicant, “Zahid job done”. The applicant replied the same day, “Ok good”. It follows that this is the earliest date in the joint criminal enterprise when the evidence established that the applicant was a fully cognisant participant in the joint criminal enterprise. The last text messages reproduced in the applicant’s agreed facts were exchanged on 7 August 2017, in relation to the last bank account. [1]

13. [21]

    The applicant’s agreed facts included a table that set out the cycling of deposits and withdrawals through the accounts of Divergent Trading and Kareem Enterprises. The total amounts that were credited and debited to Kareem Enterprises, between 27 March 2014 and 13 November 2017, were $2,142,725.30 and $2,144,395.73 respectively. The total amounts that were credited and debited to Divergent Trading Pty Ltd, between 14 March 2014 and 29 December 2017, were $1,750,244.49 and $1,699,146.18 respectively.

14. [22]

    The applicant and co-offender were arrested on 21 June 2018. Police seized multiple laptop computers from the applicant’s residence and one from his workplace. Upon analysis, they were found to contain spreadsheets labelled “Stocktake” that contained names, company details, salary payment days, credit card payments, amounts, login numbers and passwords for fraudulent accounts. The laptop seized from the applicant’s workplace also had a screenshot of a list titled “Divergent Trading” containing the names of six of the false identities and a four-digit pin code, and another screenshot with a list titled “Party Codes” containing the names of four other false identities, and a four-digit pin code. In addition, the laptop had on it other documents associated with the scheme, such as bank statements, a loan document, business registration details and tax details.

15. [23]

    The applicant participated in an interview with police, during which he denied any knowledge of the false identities or that he had any business transactions with the co-offender. He was granted bail following his arrest. He was committed to trial in the District Court on 41 charges to which on arraignment he entered pleas of not guilty. A trial date was set for October 2020 with an estimate of 10 weeks. Following negotiations, on 14 August 2020 the applicant entered pleas of guilty to the three offences, on the understanding that the first two offences are “rolled up” versions of the 41 charges for which he had been committed to trial. The applicant remained on bail until the date of his sentence.

The sentence hearing

1. [24]

   A sentence hearing in respect of both offenders took place on 8 December 2020. The applicant was aged between 33 and 37 years during the course of the scheme, that is, from the date of the creation of the first false identity to the time of the last fraudulent loan application. He was aged 41 at the time of sentence.

2. [25]

   The Crown tendered the indictment, the agreed facts on sentence, the applicant’s criminal history (he had no prior entries on his criminal record) and a Sentencing Assessment Report. The Crown separately tendered a statement of agreed facts in the co-offender’s case (“the co-offender’s agreed facts”).

3. [26]

   The Sentencing Assessment Report dated 3 December 2020 described the applicant’s family, education and employment history. At the time of the report, the applicant was residing with his wife and two children in their family home. His younger son “has autism”. The applicant reported a “positive relationship” with his wife and said that he was the primary carer of his younger son. He was employed as an accountant and “contact with [his] employer revealed him to be a good worker” who was “well-liked by his colleagues”.

4. [27]

   The applicant said that he “held the co-offender in high esteem” and regarded him as a “role model” who would act in his “best interests”. As to the circumstances of the offences, the applicant said that he was not sure why he committed them: “I don’t know what frame of mind I was in and why I did it”. He gave various explanations, including that he was provided with the opportunity to run a business which appealed to him; that once he became aware of the illegal activities, he “felt bad” for the co-offender and wanted to help him “kick start” his life; and greed, that is, being motivated to make money to better his financial circumstances.

5. [28]

   The applicant expressed regret, saying, “It was the biggest mistake of my life” and said that “I shouldn’t have done it, no questions asked”. As to the applicant’s “insight into impact of offending”, the report noted:

6. [29]

   The report assessed the applicant at a “Low” risk of reoffending in accordance with the Level of Service Inventory – Revised (LSI-R) assessment tool.

7. [30]

   The applicant tendered a report prepared by Dr Olav Nielssen, forensic psychiatrist, a letter from the applicant to the Court, a letter from the applicant’s wife, three brief letters by the treating paediatrician of the applicant’s younger son, a character reference from an employer and friend of the applicant and the co-offender’s criminal record. In addition, the applicant’s wife gave evidence.

8. [31]

   Dr Nielssen assessed the applicant by phone on 30 November 2020 and by audio-visual link on 3 December 2020. Dr Nielssen related the applicant’s account of why he committed the offences and what part he played in them:

9. [32]

   The applicant expressed remorse:

10. [33]

    In relation to the applicant’s younger son’s mental conditions, Dr Nielssen took the following history:

11. [34]

    Dr Nielssen concluded that the applicant “was not thought to meet the accepted criteria for the diagnosis of any psychiatric disorder”. He expressed the following opinion on the applicant’s response to being charged with the offences:

12. [35]

    The applicant’s letter outlined his personal, professional and family history. As to his offending, he stated that he “assisted” the co-offender by opening bank accounts and setting up a business that involved “herbal tea” in his (the applicant’s) name, because:

13. [36]

    The applicant said that over time he noticed:

14. [37]

    He expressed remorse for the impact of his offending on himself, his family, the ANZ Bank and the community. He offered to pay restitution in the future for the amount of the bank’s loss apportioned to him, which is $331,545.

15. [38]

    The applicant addressed the impact of a sentence of imprisonment on his family, noting that, if imprisoned, “I cannot be there for my sons who are so close and reliant on me as a father”. The only mention made of his younger son’s mental condition was: “My youngest son suffers from autism”.

16. [39]

    Two of the three letters by the younger son’s treating paediatrician are dated 12 February 2019 and the third letter is dated 15 April 2019. In the letters, the specialist paediatrician stated that the son has been diagnosed with attention deficit hyperactivity disorder (“ADHD”), autism spectrum disorder (“ASD”), has a “Mild-Moderate Developmental/Intellectual Delay pending formal assessment” and has an “obvious speech impairment” that requires speech therapy. With respect to the diagnosis of ASD, the specialist paediatrician assessed the son as being at “level 2-3 for social/communication deficit” and “level 2-3 for repetitive/restrictive patterns of behaviour” based on “DSM V criteria”.

17. [40]

    The character reference was provided by a long-standing family friend of the applicant who had employed him since his arrest. He stated that the offending was “totally out of character” for the applicant, and that he had expressed regret about his actions and naivety in becoming involved in the scheme. The applicant had been diligent, trustworthy and reliable as an employee. He described the applicant as a dedicated husband and father, particularly to his younger son, who is a “valued member” of the community.

18. [41]

    The applicant’s wife wrote a letter to the Court, in which she explained some of the difficulties caring for their younger son:

19. [42]

    The applicant’s wife’s evidence in chief was an elaboration of her letter to the Court. The younger son was aged seven. Due to his ASD and associated “severe behaviour issues” and “speech issues”, he attended a “special class” at his school, which had six or seven pupils and two teachers. The applicant’s wife said:

20. [43]

    The applicant’s wife said that she would need to “give up [her] career” if the applicant received a sentence of imprisonment, because she worked full-time and their parents “all reside in Pakistan”. She acknowledged that she and the applicant had a “few relatives” in Australia, but stated that she would not have their support with caring for the children. She gave evidence of the applicant’s expressions of regret for committing the offences.

21. [44]

    In cross-examination, the Crown explored options that would enable the applicant’s wife to maintain her employment. The applicant’s wife accepted that funding received by the family from the NDIS for their younger child would increase if the applicant received a sentence of imprisonment. However, it was provided “solely for therapies” and did not provide support for other activities. Her requests for flexible work hours from her current employer had received a “total no from them”. After school care was not an option, because “he cannot handle the after care, he cannot handle the whole day”.

22. [45]

    In written submissions, the Crown stated:

23. [46]

    In oral submissions, the Crown said:

24. [47]

    The applicant submitted that it was necessary to differentiate between the relative culpability of the applicant and the co-offender in the joint criminal enterprise, noting that the applicant was less criminally culpable, as conceded by the Crown. The applicant submitted that a lesser sentence than that imposed in respect of the co-offender was also warranted because of the disparity in their ages and criminal histories and the influence that the co-offender had exercised over the applicant in the applicant’s involvement in the joint criminal enterprise. The applicant noted that the facts concerning the co-offender’s fraud offences in 1998 and 1999, which were to the effect that he had created false identities using fabricated birth certificates, supported the proposition that the co-offender was the architect of the scheme. The applicant submitted that an aggregate sentence of 3 years or less was open to the Court, in which case an intensive correction order should be imposed. [3]

25. [48]

    The applicant responded to the Crown’s submission that the applicant’s occupation was an aggravating factor:

26. [49]

    In relation to the issues of the special needs of his son, in written submissions, the applicant noted that “he plays a key role in the care for his children, in particular one of his children is afflicted with autism and requires special care” and that a full-time custodial sentence would have a significant impact “for [the applicant], and his wife and family”, since he is “the parent of a son who has special needs and is autistic, with severe behavioural issues”. The applicant submitted that “the impact on his immediate family” of a custodial sentence was a reason to find special circumstances.

27. [50]

    In the course of an exchange between the sentencing judge and Crown on the topic of hardship and the test, confirmed in R v Edwards (1996) 90 A Crim R 510, that the circumstances need to be “highly exceptional” for significant mitigatory weight to be attributed to hardship, her Honour said: “Even if it doesn’t reach the threshold, it’s still something to be taken into account in [mitigation]”. Senior Counsel for the applicant then clarified the applicant’s position, stating that:

The remarks on sentence

1. [51]

   The remarks on sentence were delivered in a joint judgment in respect of both the applicant and co-offender on 16 December 2020. The sentencing judge observed that the gravamen of the criminal conduct in respect of both offenders lay in the first two offences, which were “rollup” counts of “what were originally numerous separate counts of like nature”. Accordingly, the sentence for the third offence would be “concurrent”. A 10 per cent discount was indicated for the utilitarian value of his guilty plea.

2. [52]

   The sentencing judge expressed mild criticism that there were two sets of agreed facts, rather than one set in relation to both offenders:

3. [53]

   The sentencing judge then proceeded to extract pars 4-12 of the co-offender’s agreed facts, as follows:

4. [54]

   The sentencing judge read into the judgment a further section from the co-offender’s agreed facts, titled “Roles of Malik and Kareem”, which did not have a counterpart in the applicant’s agreed facts:

5. [55]

   The sentencing judge included a passage extracted from the Crown written submissions in respect of the co-offender:

6. [56]

   Contrary to the inference that the extracted passage is replicated at par 3 of the Crown submissions in respect of the applicant, it does not contain the same attribution of joint liability for the entire duration of the scheme. Rather, par 3 of those submissions reads:

7. [57]

   In assessing the objective seriousness of the offences committed by the applicant and co-accused, the sentencing judge referred to their differing roles. I note that her Honour did so in terms that acknowledge the delay in the applicant’s full involvement in the joint criminal enterprise:

8. [58]

   The sentencing judge then fixed the levels of objective seriousness of the offences without differentiating between the offenders. Her Honour found that the first offence was “well above the midrange” because of the:

9. [59]

   The second offence was less serious because the attempts failed, although it nevertheless involved “numerous fraudulent acts”, placing it “slightly below midrange” in terms of objective seriousness. The third offence was above midrange.

10. [60]

    The sentencing judge considered the competing submissions as to whether the applicant’s profession as an accountant was an aggravating factor:

11. [61]

    The sentencing judge determined that the degree of planning involved in the offending was significant in relation to the co-offender and that it applied “to a lesser extent” in relation to the applicant.

12. [62]

    The sentencing judge considered the issue of hardship arising from the applicant’s younger son’s autism:

13. [63]

    As to the applicant’s claim that his offending was consequent to the influence that his co-offender had over him, the sentencing judge remarked:

14. [64]

    The sentencing judge summarised the applicant’s favourable subjective circumstances thus:

15. [65]

    On the issue of parity, the sentencing judge found as follows:

16. [66]

    The sentencing judge applied “notional concurrency” for the third offence but “some measure of notional accumulation” between the first offence and second offence as they reflected “separate and discrete criminality”. The sentencing judge found special circumstances, [5] being a need for a longer period of parole to “address rehabilitation”. Her Honour found that the threshold in s 5 of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSP Act”) had been crossed, so that no sentence other than one of imprisonment was appropriate. Her Honour did not accept the applicant’s submission that the aggregate sentence imposed should be less than 3 years.

17. [67]

    I note that the ratio of the non-parole period of 2 years 4 months to the total aggregate sentence of 4 years was 58 per cent.

Ground 1: The sentencing judge erred in sentencing the applicant on the basis of material contained in the co-offender’s statement of facts

1. [68]

   The applicant submitted that, to the extent that the sentencing judge assessed the applicant’s role on the basis of the co-offender’s agreed facts, on the mistaken assumption that they essentially mirrored the applicant’s agreed facts, her Honour was mistaken as to when the applicant became a wholly involved participant in the enterprise and incorrectly assessed his role in it. As such, her Honour fell into error by either mistaking facts or being guided by irrelevant matters: House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505.

2. [69]

   The applicant referred to the observations by the sentencing judge, extracted from the remarks on sentence at [52] above, to the effect that the offenders’ agreed facts are “essentially the same” and that the passages her Honour incorporated into the remarks from the co-offender’s agreed facts were “relevant in relation to both offenders”. Consequent to that error, the sentencing judge determined identical levels of objective seriousness for each offence to each offender.

3. [70]

   The applicant submitted that the co-offender’s agreed facts assigned a higher level of culpability to the applicant than the applicant’s agreed facts. A concession was made in the applicant‘s agreed facts that there was “no direct evidence to suggest that [the applicant] was aware of [the] specific content of the applications” and that he only became “fully aware” of the details of the scheme in 2015. [6] In contrast, the co-offender’s agreed facts implicated the applicant in the offending “right from the beginning”.

4. [71]

   The applicant referred to the passage that the sentencing judge took from the co-offender’s agreed facts, extracted at [54] above, noting that it was not replicated in the applicant’s agreed facts, and that it itemised aspects of the applicant’s role that were not part of the applicant’s agreed facts. Those aspects were:

5. [72]

   The applicant submitted that the offender’s role was not readily apparent from the applicant’s agreed facts:

6. [73]

   The respondent submitted that in relying upon sections of the co-offender’s agreed facts in order to determine the applicant’s role, the sentencing judge:

7. [74]

   The respondent referred to the paragraph extracted above at [52], submitting that the sentencing judge was correct to conclude that there was no difference between the applicant’s criminal conduct as described in the passages that her Honour took from the co-offender’s agreed facts and as set out in the applicant’s agreed facts. The respondent also noted that the applicant and co-offender had “each pleaded guilty to the same joint criminal enterprise” and that the sentencing judge was entitled to describe that enterprise and summarise her findings with respect to the applicant’s role in it.

8. [75]

   The respondent addressed each of the discrepancies identified by the applicant, extracted at [71] above, making submissions which can be summarised as follows:

   1. (1)

      Complaint (a) “has no substance” because it was clear from the applicant’s agreed facts that he was “fully aware of the criminality involved in the scheme by late 2015” and engaged in “salary staging”.

   2. (2)

      Complaint (b) involved a “semantic” and “immaterial” distinction because the applicant’s agreed facts referred to 3,500 text messages between the applicant and co-offender that established they were “in contact on a regular basis” and which, by the end of 2015, contained discussion of the fraudulent scheme.

   3. (3)

      Complaint (c) appeared to involve “an issue of potential traversal of the plea”, given the mens rea involved in the offences to which the applicant pleaded guilty was to dishonestly cause, or attempt to cause, financial disadvantage to the ANZ Bank and to transfer money into accounts in false names by way of salary staging.

   4. (4)

      Although the applicant’s agreed facts did not expressly refer to the applicant keeping “accountant like” records and did not state that those records included the minimum balance necessary for the scheme and details as to when the next loan application should be made, the applicant’s background in accountancy and the nature of the salary staging scheme were described in the applicant’s agreed facts, and it was asserted that the applicant was involved in the mechanics of the scheme, including the retention of records, “throughout the existence of the enterprise”: see par 13 of the applicant’s agreed facts extracted at [19] above.

9. [76]

   The respondent submitted that the sentencing judge’s mistaken reference to the section of the Crown written submissions concerning the co-offender being replicated in those in respect of the applicant was a “slip”. The respondent submitted that the applicant’s role is later correctly stated, for example, in the sentencing judge finding that the co-offender was the “architect” of the scheme and the applicant’s involvement increased over time.

10. [77]

    The respondent submitted that, in the context of a joint criminal enterprise, that enterprise can be considered to determine objective seriousness as a “general concept” without distinguishing between the individuals’ offending, before proceeding to consider the individual culpability of the co-offenders.

11. [78]

    As was observed in Gaggioli v R [2014] NSWCCA 246 by Fullerton J (Hoeben CJ at CL and Adamson J agreeing), at [27]:

12. [79]

    In Baquiran v R [2014] NSWCCA 221, Macfarlan JA (Adamson and Bellew JJ agreeing) found error by a sentencing judge who relied in part upon the sentencing judgment of a co-offender in determining the role of the offender. Macfarlan JA said, at [27]:

13. [80]

    A comparison of the parts of the co-offender’s agreed facts extracted above at [53] with the part of the applicant’s agreed facts extracted above at [19] brings to light, in my view, more significant differences as to the applicant’s role than those identified by the applicant at [71] above. In more detail, the differences are as follows:

    1. (1)

       Inferentially, in the co-offender’s agreed facts, the applicant was a fully cognisant member of the joint criminal enterprise from the scheme’s commencement in 2013. However, according to the applicant’s agreed facts, at par 12, the applicant was initially unaware of the “specific nature of the fraudulent activity to obtain the monies, and the process involved” and, as time progressed, the co-offender “began to divulge the enterprise” to the applicant. The applicant’s agreed facts further qualify his involvement at par 14, noting that the applicant initially had “limited knowledge” of the co-offender submitting applications for loans and credit cards. At par 15, the applicant’s agreed facts state that there was “no direct evidence” that the applicant was aware that the loan applications stipulated that the false identity was employed by either Divergent Trading or Kareem Enterprises.

    2. (2)

       Whereas the co-offender’s agreed facts at par 9 refer to the 3,500 emails exchanged between the offenders between 2013 and 2017 establishing that they “were in contact on a daily basis”, the applicant’s agreed facts state, at par 20, that the emails establish that “by 2015 [the co-offender] and [the applicant] were in contact on a regular basis”.

    3. (3)

       According to the co-offender’s agreed facts, at par 4, the applicant and the co-offender jointly submitted the online applications for loans and credit cards, whereas in the corresponding part of the applicant’s agreed facts at pars 14 and 15, it was the co-offender alone who submitted the applications. There is also no direct evidence in the applicant’s agreed facts that the applicant was aware of the specific content of the applications.

    4. (4)

       Consistent with those differences, whereas at par 12 of the co-offender’s agreed facts, “[the co-offender] and [the applicant] applied for a total in excess of $1,351,274 in loans and credit cards”, in the applicant’s agreed facts, at par 23, it is stated that “the joint enterprise accounted for a total of $1,351,274 in loans and credit cards”.

    5. (5)

       In the co-offender’s agreed facts, at par 6, it was the applicant alone who made the deposits into the false accounts to improve the chances of the applications being granted, whereas in the applicant’s agreed facts, at par 17, both the applicant and co-offender did so.

14. [81]

    The passage in the remarks on sentence that was taken from the co-offender’s agreed facts under the heading “Roles of Malik and Kareem”, and the passage from the Crown’s written submissions on sentence concerning the co-offender extracted at [55] and [56] above, underscore the inference arising from the co-offender’s case, and adopted by her Honour in respect of both cases, that the two offenders were equally culpable and fully engaged in the joint criminal enterprise throughout the life of the scheme.

15. [82]

    It was common ground in the sentence hearing that the applicant’s role in the enterprise rendered him less criminally culpable than the co-offender, for four reasons: there was no evidence, first, that the scheme was established on the applicant’s initiative; or second, that he was involved in the establishment of the fake identities and accounts; or third, that he was involved in signing and submitting the fraudulent applications to the ANZ Bank for credit. Fourth, that evidence did not establish that the applicant was aware of the mechanics of the fraud before 2015.

16. [83]

    As noted, the sentencing judge acknowledged the applicant’s lesser role in the enterprise in relation to objective seriousness, the aggravating factor of planning and parity. In the course of assessing the objective seriousness of the offending, the sentencing judge correctly related the applicant’s lesser role as extracted at [57] above, which identified two of the four bases upon which the applicant’s role was conceded by the Crown to be less than that of the co-offender, namely, the first and third reasons above. However, by then fixing identical levels of objective seriousness in relation to both offenders for each offence, the sentencing judge failed to reflect the applicant’s lower level of criminal culpability.

17. [84]

    The sentencing judge also acknowledged the applicant’s lesser role when referring to the aggravating factor of planning and considerations of parity of sentence. The sentencing judge noted that the degree of planning involved in the offences was less relevant to the applicant than to the co-offender and that the applicant was entitled to a lesser sentence than the co-offender because, unlike the co-offender, he did not have a prior criminal history, and “he played a significantly lesser role and so, is less culpable”.

18. [85]

    Although the sentencing judge did acknowledge the applicant’s lesser role in those later aspects of the sentencing exercise, the fact that it was not reflected in disparate findings of objective seriousness for each offender, that the bases of his lesser criminal culpability were not further identified and that those acknowledgements were not reconciled with the earlier part of the remarks on sentence in which the roles of both offenders were described in equal terms over the duration of the joint criminal enterprise, leads me to conclude the sentencing judge’s exercise of discretion miscarried by her Honour allowing into consideration extraneous or irrelevant matters or making a mistake as to the relevant facts: House v The King at 505.

19. [86]

    Accordingly, I find that ground 1 is made out.

20. [87]

    Before leaving this ground, I join the sentencing judge in her criticism of the manner in which the agreed facts were presented to the Court. They were unnecessarily complex, to a point that the differences in the roles of each offender were obscured. A court that is tasked with sentencing co-offenders on the basis of agreed facts should be provided with facts, either separate or combined, that clearly delineate the roles of each offender. The agreed facts in both cases fell short of that standard.

Ground 2: the sentencing judge erred in finding that the applicant used his “skills as an accountant” to commit the offences

1. [88]

   The applicant submitted that it was not open to the sentencing judge to find that the offence was aggravated by the applicant using “his skills as an accountant to commit these frauds”.

2. [89]

   The applicant submitted that there was no “explicit reference” in the applicant’s agreed facts to him using his specialised skills or knowledge as an accountant in the commission of the offences. In reciting the co-offender’s agreed facts, the sentencing judge referred to the applicant maintaining “accountant-like” records, which was not replicated in the applicant’s agreed facts. In oral submissions before the sentencing judge, as noted at [48] above, the applicant submitted that such a finding was not open because “all [the applicant] did was transfer monies. You don’t have to be an accountant to do that”.

3. [90]

   In oral submissions, the applicant submitted that it was not open to the sentencing judge to find, to the requisite standard, that the spreadsheets concerning the fraud that were found on the applicant’s electronic devices established that he was deploying his accountant’s skills in the joint criminal enterprise, because an alternative available inference was that they were “sent to him and then downloaded, that is, they were [the co-offender’s] spreadsheets”.

4. [91]

   The respondent submitted in writing that it was “amply open” for the sentencing judge to have made this finding, including by having regard to evidence acquired from the laptops seized at the applicant’s residence and workplace as to:

5. [92]

   In oral submissions, the respondent submitted that there was an “irresistible inference” that the applicant created the spreadsheets and was “the one doing [the] record keeping and the one with the skills to do it” because they were located on both his work and home computers, including “a reference in the facts to having tax records”.

6. [93]

   As noted, the Crown conceded before the sentencing judge, and her Honour accepted, that the applicant’s offending did not involve a breach of trust by profiting from a position as an accountant to commit the offences. The issue is whether, based on the applicant’s agreed facts alone, it was open to the sentencing judge to conclude, as an aggravating factor, that the applicant utilised his skills as an accountant to commit the offences.

7. [94]

   The relevant parts of the applicant’s agreed facts set out the nature of the applicant’s accountancy qualifications and employment, his critical steps in setting up the companies that were used for the transfers of funds between accounts for salary staging and withdrawals for their own purposes, over 100 text messages that were exchanged between the applicant and co-offender that illustrate that the applicant was closely informed of the progress and outcome of loan and credit card applications from late 2015, and a considerable volume of documentary material that was recovered from the applicant’s computers, set out at [22] above.

8. [95]

   Although the agreed facts do not indicate the authorship of the spreadsheets, the nature of the information in them and the other documents (bank statements, loan documents, business registration details and tax details) permit an overwhelming inference that the applicant’s role between late 2015 and 1 August 2017 was more than simply “transferring money”. Further, regardless of whether the applicant authored the entries in the spreadsheets, his possession of them was for the purposes of the joint criminal enterprise and he must have brought to bear his qualifications and experience as an accountant in utilising the information upon them and in the other documentation, in furtherance of the joint criminal enterprise.

9. [96]

   Accordingly, on the basis of the material in the applicant’s agreed facts, it was open to the sentencing judge to be satisfied beyond reasonable doubt that the applicant used his skills as an accountant to commit the offences.

10. [97]

    In relation to ground 2, I would grant leave to appeal, but find this ground is not made out.

(b) the impact of the above hardship on the applicant in making his imprisonment more onerous

1. [98]

   The applicant takes issue with the manner in which the sentencing judge dealt with the issue of hardship, extracted at [62] above, on two bases, the first being that, although the evidence of hardship did not rise to the standard of “highly exceptional” so as to warrant a significant mitigation of sentence (Edwards at 517), it was a subjective circumstance to be taken into account in assessing the appropriate penalty: R v Girard [2004] NSWCCA 170 at [21], [22]. The applicant submitted that since the sentencing judge did not acknowledge the relevance of hardship in that sense in the remarks on sentence, it had not been taken it into account.

2. [99]

   In relation to the second aspect of this ground, the applicant submitted that in view of the evidence that the applicant was concerned for the wellbeing of his wife and children, the sentencing judge erred in not taking that subjective circumstance into account or, alternatively, by failing to provide reasons for not doing so. As to its relevance to the sentencing exercise, the applicant relied upon Markovic v R (2010) 30 VR 589; [2010] VSCA 105, where in a unanimous judgment, the Victorian Court of Appeal, constituted by a bench of five, stated, at [20]:

3. [100]

   The respondent submitted that the sentencing judge had taken into account the hardship that would be occasioned to the applicant’s family, by referring to the evidence given by the applicant’s wife concerning their younger child and financial circumstances, and it may be inferred that the applicant’s concern was also taken into account by her Honour’s acknowledgement that his incarceration would “inevitably cause not only financial hardship, but other hardship”.

4. [101]

   The respondent referred to Dr Nielssen’s report in which he stated that the applicant was coping with the stress of his situation and was not “overly depressed” because if it.

5. [102]

   This Court has previously observed that extreme hardship that would be occasioned to an offender’s family by a sentence of imprisonment, that falls short of the Edwards standard of “highly exceptional” circumstances, nevertheless may be taken into account by the sentencing judge shortening the overall sentence of imprisonment or by finding special circumstances: Dipangkear v R [2010] NSWCCA 156, at [34]; R v Cornell [2015] NSWCCA 258, at [141]. Counsel for the applicant at the proceedings on sentence conceded that the evidence of hardship that would be occasioned to the applicant’s family by his imprisonment did not reach the Edwards standard. This ground thus focuses on hardship as a subjective circumstance that is taken into account in sentencing an offender.

6. [103]

   There was ample evidence before the sentencing Court to the effect that, because of the applicant’s central role in the care of his younger son, his incarceration would have a direct adverse impact on his son’s wellbeing. The applicant’s absence would likely oblige his wife to cease her employment, in order to fill that void, which would in turn have financial consequences for the family as a whole.

7. [104]

   Although the sentencing judge did not expressly acknowledge in her remarks on sentence that the consequences of imprisonment to the applicant’s wife and younger son were taken into account as a mitigatory factor, in the course of oral submissions at the sentence hearing her Honour expressed her intention to do so: see [50] above. That acknowledgement, taken together with her Honour’s consideration of the issue in the course of her remarks on sentence that is excerpted above at [62], leads me to conclude that her Honour did appropriately take into account the impact of the sentence on the applicant’s family circumstances. In any event, the sentencing judge did find special circumstances, significantly reducing the ratio of the non-parole period to the total sentence, from 75 per cent to 58 per cent, so that it is unnecessary to consider that issue further: R v Cornell at [141].

8. [105]

   As to the second aspect of this ground, the only reference to the applicant’s concern for his younger son’s welfare being a mitigatory factor made in the applicant’s written submissions to the sentencing judge was under a heading of “Impact”. There, the applicant submitted that

9. [106]

   The submissions sought a finding of special circumstances because it was the applicant’s first instance of offending and because of the impact that his incarceration would have on his family, but did not identify the impact on the applicant himself as a reason for a finding of special circumstances. Indeed, it was stated in the applicant’s submissions that Dr Nielssen’s report disclosed that, “There are no apparent relevant mental health issues identified, save for general appropriate situational anxiety”.

10. [107]

    In oral submissions to the sentencing judge, as noted at [49] and [50] above, senior counsel for the applicant submitted that the impact of imprisonment on the applicant’s family was “a huge factor” to be taken into account in mitigation, but did not submit that the impact of the applicant’s family’s situation on his mental wellbeing should also be taken into account.

11. [108]

    This Court has previously observed that it is reluctant to intervene where reliance is placed on a subjective factor that may be open on the evidence but which defence counsel at first instance did not refer to. In Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44 Johnson J, McClellan CJ at CL agreeing, said:

12. [109]

    Zreika concerned an ex tempore sentence judgment. It was followed in Ibrahim v R [2022] NSWCCA 161, at [69], in which the sentence judgment had been reserved, as was the case here.

13. [110]

    In Griffin v R [2018] NSWCCA 259, McCallum J, as her Honour then was, said, at [35]-[36], in relation to Zreika:

14. [111]

    It is appropriate to consider whether the submission, if it had been made, was available in any event, on the evidence adduced at the sentence hearing. The principle set out in Markovic has been applied by this Court in Mokhaiber v R [2011] NSWCCA 10, at [31], where Price J (James J and Hislop J agreeing), considered an application for leave to appeal against the severity of a sentence. The applicant’s sole ground of appeal was based on fresh evidence to the effect that his three year old daughter had been diagnosed with an illness that was likely to result in her death within four years. At the time of the judgment, the applicant would not become eligible for parole for another 19 months. The evidence of the applicant’s mental state was in the form of a report from a forensic psychologist, about which Price J noted, at [27]:

15. [112]

    Leave to appeal was granted, the sentence was quashed, and a fresh sentence imposed with a non-parole period that would expire 13 months after the date of the judgment. Price J said:

16. [113]

    In this case, it is questionable whether the evidence of the applicant’s concern at his family’s plight, consequent to the prospect of him being sentenced to imprisonment, reached a point of him being so mentally afflicted or distressed that it warranted consideration as a discrete subjective factor in the sentencing exercise. The relevant references in Dr Nielssen’s report to the applicant’s concern for his younger son is as follows:

17. [114]

    The applicant’s wife did not refer to the applicant being distressed at the prospect of being imprisoned and unable to help care for their younger son, either in her letter to the Court or in her oral evidence. In his letter to the Court, the applicant said:

18. [115]

    The evidence before the sentencing judge established that the applicant was remorseful for his criminal conduct and regretted the impact of the possible penalty of incarceration for his offences on his family, particularly in view of his younger son’s disabilities. There can be no doubt on the evidence that the applicant also regretted that he would be unable to assist his wife in the care of their children, in particular, his younger son, if imprisoned. However, there was scant evidence of the applicant being so distressed by the consequences of imprisonment for his family’s plight that it warranted an express finding of mitigation.

19. [116]

    Accordingly, in relation to ground 3, I would grant leave to appeal, but find this ground is not made out.

Re-sentence

1. [117]

   Since error has been established on the basis of ground 1, the Court should re-exercise the sentencing discretion: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37. The applicant submitted that a lesser sentence would be warranted. The respondent submitted that if error is established, having undertaken afresh a separate and independent exercise of sentencing discretion, the Court would not form the opinion that a less severe sentence is warranted in law.

2. [118]

   I take into account the applicant’s agreed facts. I have previously referred to the regrettably opaque nature of that document as to the applicant’s precise role. By reference to the passage from the applicant’s agreed facts that is excerpted at [19] above, I note from pars 10 and 13 that he was involved in the scheme from its beginning in 2013 “in a number of aspects”, including the withdrawing, depositing and transferring of sums of money into and between accounts, accessing accounts, checking on applications and retaining records about such applications. Having regard to the contents of the applicant’s computers that were seized on his arrest, which are summarised at [22] above, I am satisfied beyond reasonable doubt that the applicant’s possession of the documents on his computers is consistent with his actions as described in par 13 of the applicant’s agreed facts.

3. [119]

   I note that the applicant was not fully engaged in the joint criminal enterprise, which is described at par 14 of the applicant’s agreed facts, until September 2015. That is the date of the first text message exchange between the applicant and co-offender concerning the enterprise, being in that instance a fraudulently-obtained grant of credit from the ANZ Bank. Although this was approximately the mid-point of the scheme, a tallying of the amounts of credit granted and declined before and after that date establishes that the majority of the fraudulent grants and denials of credit, and the majority of the amount of credit granted, occurred after that date. The loss to the ANZ Bank is in the order of $663,090. That amount has not been recovered.

4. [120]

   The applicant’s role was less than that of the co-offender; the co-offender was the scheme’s architect and he acted alone in setting up each of the 15 false accounts and making the applications for loans and credit cards.

5. [121]

   None of the three offences has a standard non-parole period. Accordingly, it is unnecessary to express findings of objective seriousness in terms of a range: R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81 at [57]; Belghar v R [2013] NSWCCA 245 at [59]. However, the sentencing judge having done so in respect of both offenders, it will assist in the differentiation of my assessment of the seriousness or objective gravity of the applicant’s offending from that of the co-offender if I adopt the same approach. I would assess the seriousness of the first and third offences as slightly above the mid-range and the second offence as just below the mid-range. To be clear for the purposes of parity, I find the objective seriousness of each offence to be slightly lower than that determined by the sentencing judge in relation to the co-offender.

6. [122]

   An aggravating factor is that, although the applicant’s commission of the offences did not occur in the context of him exploiting a position of trust, his profession as an accountant gave him a particular responsibility to not exploit financial services by criminal offending. In addition, the offences entailed considerable planning over the two years of the applicant’s full involvement in the joint criminal enterprise, in the form of maintaining the accounts in the names of false identities and keeping track of the salary staging and loan repayments. As to motive, I note the evidence that the applicant and his family were materially well-off throughout the period of offending and his difficulty in explaining his motivation. I find that the applicant’s likely motive was simply greed. No restitution has been made.

7. [123]

   The applicant read two affidavits to be taken into account if error is established. One is an affidavit by the applicant, sworn on 4 February 2022. He stated that a month after he commenced his sentence, he was moved to a prison a considerable distance from Sydney. His wife, who resides with their children in Sydney, was able to visit him only once in the first five months after the transfer, for financial and family reasons. The prison then went into lockdown due to the Covid-19 pandemic, which continued until the time of his affidavit. During that period, he was allowed one audio-visual link (“AVL”) call per week, lasting 30 minutes, which he utilised to contact his wife. Those calls were subject to technical issues that sometimes resulted in the call being cancelled.

8. [124]

   The applicant related a solid work history in prison and expressed a desire to engage in educational programs which presently were unavailable due to the pandemic and him being in a “working prison”. He agreed to be a delegate for the section of the prison in which he worked, so that he liaised between the correctional centre managers and fellow prisoners about various issues, which I accept was a position of trust and responsibility.

9. [125]

   The applicant refreshed his expressions of remorse and his desire to eventually pay restitution to the ANZ Bank. The applicant said that he feels guilt and anxiety for the impact of his offending and incarceration on his wife, children and overseas family. He has sought psychological help in custody, but it is difficult to obtain appointments; he has only had one session with a psychologist.

10. [126]

    The other affidavit, sworn by the applicant’s solicitor on 4 February 2022, annexed documentation and correspondence that corroborated the applicant’s attempts to access educational courses and their non-availability, his failed attempts (with the exception of one session) to access counselling services, and the limited availability of AVL calls and their technical issues. In addition, annexed to the applicant’s solicitor’s affidavit are prison records that have entries by prison staff that attest to the applicant being held in high regard by prison officers.

11. [127]

    As to other subjective factors, I note that the applicant has no criminal record and that, prior to his offending, he was a person of good character who contributed to the community.

12. [128]

    Although there is no evidence as to how the applicant’s family has fared since he has been in custody, including in relation to the special needs of his younger son, on the basis of the material that relates to the period immediately before the sentence was handed down, I find that his family is likely experiencing financial hardship and significant stress consequent upon the applicant’s imprisonment. I find that the applicant’s younger son is particularly affected by that circumstance. I take the issue of family hardship into account in finding special circumstances.

13. [129]

    As to the applicant’s submissions concerning his relationship with the co-offender, which he claims contributed to his decision to commit the offences, in my view, while the relationship is relevant to an understanding of how the offences came about, it is of little benefit to the applicant otherwise. He was a mature-aged, university-educated adult, employed in the area of financial services, with family responsibilities and significant life experience. His criminal responsibility is not diminished by him having chosen to engage in the offending at the behest of an older, trusted person who had previously assisted him and who was held in high esteem in his community.

14. [130]

    The impact of the hardship to the applicant’s family on the applicant’s mental wellbeing is not so significant as to warrant significant weight in the mix of factors that are relevant to the formulation of the appropriate sentence. However, the applicant’s continuing difficulty in having face to face and AVL contact with his family is a relevant factor to be taken into account. In so finding, I do not minimise the anguish which the applicant doubtless feels at his family’s plight.

15. [131]

    I accept that the applicant is genuinely remorseful, although in his letter to the Court he did seek to minimise his criminal culpability, and that, taking into account the affidavit evidence, his rehabilitation is underway. I accept the evidence that the risk of him re-offending is low.

16. [132]

    I am satisfied that the threshold of s 5(1) of the CSP Act is crossed. I take into account the statutory signpost of the maximum penalties for the offences. I note the scale of the fraud that is captured in the three offences, having regard to the quantum of loss to the ANZ Bank and the significant further amount that the offenders attempted to obtain, which warrants reflection in general deterrence and denunciation.

17. [133]

    I conclude that a lesser sentence is appropriate. I would allow a 10 per cent discount for his late pleas of guilty and, consistent with a finding of special circumstances, I would fix a lower ratio of the non-parole period to the total sentence.

18. [134]

    Accordingly, I would impose an aggregate sentence of 3 years 7 months with an aggregate non-parole period of 2 years. The commencement of the sentence would be backdated to 16 December 2020, so that the non-parole period would expire on 15 December 2022 and the total term would expire on 15 July 2024.

19. [135]

    The indicative sentences would be as follows:

Orders

1. [136]

   I propose the following orders: