Stroud v R

1. [1]

   HOEBEN CJ at CL:

Offences and sentence

1. [2]

   There were in total 91 substantive charges brought against the applicant.

2. [3]

   Having indicated the sentence which he would have imposed for each offence, his Honour Judge Freason SC imposed an aggregate sentence of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months, commencing 2 May 2017 and expiring 1 November 2021. His Honour noted that the applicant had not submitted that he should receive a non-custodial sentence. There were no matters on a Form 1 or a s 166 Certificate. The applicant received a discount for his plea of guilty of 25 per cent.

3. [4]

   A table summarising the charges in chronological order by offence date, together with the sentence indicated, is annexed to these reasons as Annexure “A”. A similar table in respect of the co-offender, Elizabeth Goh, is annexed to these reasons as Annexure “B”.

4. [5]

   The applicant seeks leave, pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed by his Honour on 6 December 2018 in the District Court at Sydney. The sole ground of appeal is that there is a justifiable sense of grievance resulting from the aggregate sentence imposed upon the applicant and that imposed on the co-offender, Elizabeth Goh.

Factual background

1. [6]

   The applicant was sentenced on the basis of a statement of agreed facts. The statement described the activities of a syndicate engaged in large scale Host Card Emulation (HCE) fraud. Broadly speaking, this involved a mobile phone being fraudulently linked to a credit card and the phone then being used to make “tap and go” purchases. Approximately 47 victims of the syndicate had been identified who had had their mobile phone numbers ported, their bank accounts compromised and purchases made on credit cards using their identification details, to a total value of $1.5 million. A further 40 victims were identified in the course of the investigation.

2. [7]

   Members of the syndicate would pretend to be medical staff, or employees of insurance or telecommunication companies, in order to obtain identifying information of a victim to enable their phone and bank accounts to be compromised.

3. [8]

   The known members of the syndicate were the applicant, Ms Goh, an unnamed co-offender, Shady Baydoun and Donald Chen. They were all convicted of offences arising out of their involvement in the syndicate’s fraudulent conduct.

4. [9]

   Ms Goh had been sentenced previously by his Honour on 19 October 2018. Ms Goh was sentenced for two sets of matters at the same time, the other being an unrelated drug supply matter. Ms Goh received an aggregate term of imprisonment of 4 years and 3 months to date from 19 June 2017, with a non-parole period of 2 years and 6 months. The non-parole period represented approximately 59 per cent of the head sentence reflecting a finding of special circumstances.

5. [10]

   Ms Goh’s sentence was made partially cumulative upon a sentence that had been imposed in the Local Court on 16 June 2017 for an offence of dealing with identity information with intent to commit an indictable offence. That sentence (12 months with a non-parole period of 7 months) commenced when she entered custody on 4 March 2017. The sentence in the present matter commenced 3½ months later.

6. [11]

   The applicant’s offence of knowingly dealing with proceeds of crime (sequence 268) covered the applicant’s possession of or dealings with multiple items of property on six separate occasions:

7. [12]

   The offence of possessing identification information (sequence 398) referred to items found when police searched a hotel room occupied solely by the applicant on 26 October 2016. These comprised:

8. [13]

   In the search of the hotel room, police also located two replica handguns, one with a silencer (sequences 408 and 409).

9. [14]

   The 57 offences of dishonestly obtaining a financial advantage by deception referred to the fraudulent use of credit cards to conduct transactions, mostly for the purchase of various products. For each of those 57 offences, the applicant is described in the agreed facts as being the principal offender responsible for its commission. These 57 offences took place between 13 April 2016 and 15 December 2016. Almost all of them incorporated multiple transactions. The total value of these transactions was approximately $1.1 million and there were at least 56 victims. The details of the offences are set out in Annexure “A”.

10. [15]

    The 27 charges of causing an unauthorised computer function with intent to facilitate fraud involved the applicant using a victim’s personal information to access a bank account and create one or more credit cards that could then be used to make fraudulent transactions. Each of the 27 victims of these offences was also a victim of one of the 57 offences of dishonestly obtaining a financial advantage by deception. These offences are also detailed in Annexure “A”.

11. [16]

    The three charges of dealing with identification information with intent to commit fraud involved the applicant using a victim’s personal information in dealing with a bank in order to create or make changes to a bank account. These offences involved a further two victims who were not involved in the offences of dishonestly obtaining a financial advantage by deception.

12. [17]

    The Commonwealth Bank of Australia (CBA) provided police with a list of stores where fraudulent purchases were conducted. While the applicant was charged in respect of these individual offences, they occurred over an extended period of time and the actual fraudulent activity involved a degree of co-operation and deliberation in respect of each matter.

13. [18]

    The following examples, taken from the agreed facts, set out the modus operandi used by the syndicate generally and the applicant in particular. Sequence 414, which was dishonestly obtain financial advantage by deception, involved over $70,000 being taken between 26 and 27 July 2016. The applicant caused nine fraudulent offences to be committed using a particular credit card in the name of Gavin Ginger, two purchases of various Apple branded products and other electrical products in the Sydney Central Business District (CBD). The applicant was a principal offender, i.e. in the sense of being the person primarily responsible for the commission of the offences.

14. [19]

    Sequence 362 involved unauthorised access. Between 12am and 11.59pm on 26 May 2016, the applicant obtained and used personal information of Lisa Schumacher to access two Commonwealth Bank accounts, with the intention of committing fraud.

15. [20]

    Sequence 413, dishonestly obtain financial advantage by deception, involved $331,943. Between 25 and 27 July 2016, the applicant caused 42 fraudulent offences to be committed utilising a credit card in the name of Amanda Allotey to purchase various Apple branded products, electrical products, entertainment products and clothing items within the CBDand surrounding areas. The applicant was the principal offender responsible for the commission of these offences. His Honour regarded that offence as a serious example of such offending. His Honour placed it in the high range of such offending.

The applicant’s subjective case

1. [21]

   The applicant’s parents both gave evidence in the sentence proceedings. The applicant, who was aged 24 at the time of his arrest, had a good upbringing. He left school in year 11. He continued to live with his parents and began to show signs of drug addiction. He has never worked.

2. [22]

   The applicant’s criminal history commenced in 2012 when he was fined and given a s 9 bond for domestic violence offences involving his parents. He was given a further s 9 bond for possession of ice, and in 2013, a Community Service Order (CSO) for break enter and steal. (When called up in relation to the CSO he was given a suspended sentence.) He was given further suspended sentences in 2013 for domestic violence offences. On 29 March 2016, he was given further s 9 bonds for three counts of goods in custody, with conditions that he attend for counselling, educational development and drug rehabilitation. When called up on 8 December 2016, he was given one suspended sentence for 4 months that expired on 7 April 2017, he remained subject to two s 9 bonds. This record was considered by the sentencing judge to deprive the applicant of leniency that would otherwise have been due to him.

3. [23]

   These offences were all committed while subject to s 9 bonds for goods in custody offences. Two of the offences (sequences 232 and 417) were also committed in breach of a s 12 bond. His Honour considered the breach of bonds to be an aggravating factor.

4. [24]

   His Honour did not find the applicant to be remorseful and found that he was likely to re-offend. Special circumstances were found on the basis of his drug addiction and by reference to the principle of totality.

5. [25]

   The issue of parity was raised in the sentence proceedings. His Honour’s approach was as follows:

6. [26]

   Later in the judgment his Honour said:

7. [27]

   In relation to objective seriousness, his Honour accepted the Crown submission that the dishonest use of credit cards was of great importance to the community and that general deterrence was important because such offences undermined community confidence and eroded the public’s confidence in financial institutions. His Honour noted that the losses were inevitably passed onto the consumer.

8. [28]

   His Honour accepted that the amount involved was relevant to an assessment of objective seriousness. His Honour accepted that the applicant was heavily involved in the fraudulent activity being carried out by the syndicate. His Honour noted that he had thousands of individual images of personal IDs saved on his phone and was in possession of multiple credit cards at the hotel. His Honour had regard to the length of time over which the conduct had occurred. While accepting that the applicant was an ice addict and part of his motive for offending was to feed his drug and gambling habit, his Honour also found that the applicant had chosen a lifestyle when he became one of the syndicate members which involved robbing the public and that clearly self-enrichment was a significant part of his motivation for offending.

9. [29]

   His Honour found that the imitation firearms were connected with the applicant’s fraudulent activity.

10. [30]

    His Honour found that the description of the applicant as a “principal” in the agreed facts was potentially misleading. His Honour interpreted that description to mean that many of the offences involved actions which were personally carried out by the applicant so that he had a substantial involvement in a very co-operative venture and he effected some of the offences by doing the things that constituted the offence. His Honour therefore accepted that the applicant was a principal in that way. His Honour rejected the proposition that there were not others above him in the syndicate. His Honour concluded that the applicant was heavily involved in the activities of the syndicate and in that regard he was an enthusiastic member of it.

11. [31]

    His Honour summarised his approach to the applicant as follows:

The applicant’s submissions on the appeal

1. [32]

   The applicant submitted that the 27 “unauthorised access” offences were committed by using personal information of other persons to access bank accounts with the intention of committing fraud related offences. He submitted that there was a significant overlap between that offending and the 57 charges of dishonestly obtaining a financial advantage by deception, which involved using various credit cards and bank accounts to make unauthorised transactions. He submitted that the criminality in one offence was largely subsumed by the commission of the other. The applicant submitted that accessing a bank account (unauthorised access) and using that same bank account to make an unauthorised purchase (obtaining a financial benefit by deception) were very much the same transaction yet gave rise to two separate offences. He submitted that notwithstanding the large number of offences, they all arose from the same criminality and modus operandi such that there was a significant overlap in criminality. He submitted that as a result the principle of totality was very important in the present matter.

2. [33]

   The applicant submitted that if that proposition were accepted, there was a considerable similarity between his offending and that of Ms Goh, such that the significant difference between the sentence imposed on him by comparison with that imposed on Ms Goh offended the parity principle, i.e. he received a sentence of imprisonment for 7 years and 6 months with a non-parole period of 4 years and 6 months. Ms Goh was sentenced to imprisonment for 4 years and 3 months with a non-parole period of 2 years and 6 months.

3. [34]

   Ms Goh was sentenced for the following offences:

   1. (1)

      1 x s 93T(1) – participate in criminal group (maximum penalty imprisonment for 5 years);

   2. (2)

      1 x s 193B(2) – knowingly deal with the proceeds of crime (maximum penalty imprisonment for 15 years. There was a Form 1 in relation to this matter:

   3. (3)

      6 x s 192E(1)(b) – dishonestly obtain a financial advantage by deception (maximum penalty imprisonment for 10 years);

   4. (4)

      3 x s 308C – unauthorised computer access (maximum penalty imprisonment for 10 years).

4. [35]

   Ms Goh received a discount of 25 per cent for the plea of guilty in relation to the Sequence 2 matters. She was aged 29 at the time of sentence. She was in breach of a s 9 bond during the commission of the Sequences 1 and 2 offences. She was on bail for a number of fraud charges on 5 July 2016 so the offences committed after this date were committed while on bail. The applicant submitted that both of these matters were aggravating factors.

5. [36]

   Ms Goh had a significant criminal history which was more serious than that of the applicant. This included multiple breaches of bond, 3 x Intensive Correction Orders and periods of imprisonment.

6. [37]

   As with the applicant, special circumstances were found on the basis of drug addiction and totality. There was nothing exceptional about Ms Goh’s subjective case in that it was no more attractive than that of the applicant. Both of them had the benefit of a good upbringing. However, at the age of 17 Ms Goh had started using ice.

7. [38]

   His Honour found that Ms Goh was lower in the hierarchy compared to the applicant but nevertheless concluded that “she was an active and enthusiastic participant generally in gross fraudulent activities”.

8. [39]

   The applicant submitted that with respect to the offences committed by Ms Goh as part of the same syndicate, there was very little to differentiate what each of them actually did. Ms Goh likewise entered into fraudulent transactions with credit cards that did not belong to her and she also phoned banking institutions impersonating other persons to gain access to accounts that did not belong to her. The applicant submitted that the gravamen of the offending overlapped and it could not be said that, based on what each offender actually did, that there was any tangible difference in each offender’s criminality.

9. [40]

   The applicant submitted that he was younger than the co-offender (albeit only by three years). There was very little to differentiate their subjective cases other than to say that Ms Goh’s criminal history was significantly more serious than his. He submitted that there was nothing in Ms Goh’s subjective case which would warrant the disparity between the sentence imposed on her and that imposed on him.

10. [41]

    The applicant submitted that it was important to keep in mind that Ms Goh was also sentenced for a separate and distinct set of drug offences for which she received only a 10 per cent discount for a late plea of guilty, together with a Form 1 and a number of matters on a s 166 Certificate. The applicant noted that he had no such separate drug offending.

11. [42]

    The applicant submitted that the principle of totality also applied and formed the basis for the finding of special circumstances. This was to ensure that a crushing sentence was not imposed on either him or Ms Goh. He submitted that when one compared the aggregate sentence imposed on each of them (considering that the co-offender was also being sentenced for separate and distinct drug offences), it was not possible to account for the significantly longer sentence imposed on him.

12. [43]

    The applicant relied upon the following matters:

    1. (1)

       the significant overlap in offending operated to accumulate the sentences for each matter;

    2. (2)

       the principal of totality applied to ensure that he was sentenced for his overall criminality and to avoid a crushing sentence;

    3. (3)

       Ms Goh was to be sentenced for separate drug offences; and

    4. (4)

       when one considers what each offender actually did, there was very little to differentiate the criminality of each of them.

13. [44]

    The applicant submitted that the number of offences committed by him was balanced by the following features of Ms Goh’s case such that the disparity in sentences was unjustified:

    1. (1)

       there were separate and distinct drug offences (with matters on a Form 1 and s 166 Certificate);

    2. (2)

       she had a more serious criminal history;

    3. (3)

       there were offences committed while on bail and in breach of bonds;

    4. (4)

       she was older in age; and

    5. (5)

       the actions undertaken by Ms Goh and him could hardly be distinguished.

14. [45]

    The applicant accepted that the offences for which he was sentenced were serious, however, he submitted that the offences for which Ms Goh was sentenced (including the drug offences) were also serious. The applicant submitted that when one compared the aggregate sentences imposed on both him and Ms Goh, the disparity could not be justified in that the applicant’s non-parole period was longer than Ms Goh’s head sentence.

15. [46]

    The applicant submitted that when one properly considered all relevant objective matters for both him and Ms Goh, together with the sentences actually imposed, his complaint of unjustified disparity was made out. He submitted that he had a justified sense of grievance with the aggregate sentence imposed on him and that the aggregate sentence imposed on Ms Goh gave the appearance that justice has not been done in his case.

Crown submissions on appeal

1. [47]

   The Crown submitted that his Honour correctly found that there was no real similarity in the actual substantive charges and their number between those brought against the applicant and those brought against Ms Goh. The Crown submitted that while there were some similarities between the subjective cases presented on sentence by them, the extent of the applicant’s criminality in the present matter readily distinguished them. The Crown submitted that parity considerations were complicated because of Ms Goh’s separate drug supply matter and because she and the applicant had not been convicted of the same offences. The Crown noted that the only criminal conduct in which they jointly participated in a direct sense was putting money through poker machines on 23 August 2016 (this conduct formed part of sequence 268 for the applicant, and part of sequence 194 for Ms Goh). The Crown submitted that otherwise their offences involved separate victims and separate transactions arising out of the activities of the same syndicate.

2. [48]

   The Crown submitted that the first and fundamental basis for distinguishing between the applicant and Ms Goh is that he was sentenced for 91 offences while Ms Goh was sentenced for 11 substantive offences in the fraud matter and five offences in her drug supply matter. In support of that proposition, the Crown relied upon R v MAK [2006] NSWCCA 381; 167 A Crim R 159 at [18] where the Court (Spigelman CJ; Whealy and Howie JJ) said the totality principle must be applied without a suggestion that a discount is given for multiple offences:

3. [49]

   The Crown submitted that there was a significant difference in the value of the fraudulent transactions engaged in by each offender, both as to the total amounts and the individual amounts pertaining to each victim. The Crown noted that Ms Goh was convicted of offences by which she defrauded her victims of a total of $120,613.73 while the applicant defrauded his victims of approximately $1.1 million, ten times more. The Crown noted that the largest amount by which Ms Goh defrauded a single victim was $33,022.99 (sequence 195, victim Lee D'Aguiar), while the applicant’s largest amount was $331,943 (sequence 413, victim Amanda Allotey). The Crown noted that the value of this one offence by the applicant was almost three times the entire amount obtained by Ms Goh.

4. [50]

   The Crown submitted that the offences of which Ms Goh was convicted involved seven victims of fraud (with others involved in the Form 1 offences), while the applicant’s offences involved at least 58 victims.

5. [51]

   The Crown submitted that the applicant was sentenced for the s 192E(1)(b) offences on the basis that he was the principal offender responsible for their commission, whereas for a number of Ms Goh’s offences she was sentenced on the basis that she was a participant in a joint criminal enterprise to commit them.

6. [52]

   The Crown submitted that the items found in the applicant’s possession on 26 October 2016 and 2 May 2017, in particular the more than 11,000 images and thousands of detailed organised notes containing individual identification information found on two mobile phones on the former occasion, indicated that the applicant’s involvement in this criminal enterprise was more extensive and serious than that of Ms Goh. The Crown submitted that that submission is supported by the applicant’s possession of two replica firearms, which his Honour found beyond reasonable doubt were linked to the offending.

7. [53]

   The Crown did not accept the applicant’s submission that the s 192E(1)(b) offences and the related s 308C(1) offences overlap to the extent that they could properly be considered as “very much the same transaction”. The Crown submitted that while the charges were connected, the criminality was clearly distinguishable and distinct. This was because one offence involved dealings with a bank and the other involved dealings with a retailer. The Crown noted that in some of the applicant’s offending there was a distinct temporal dislocation between the two charges. By way of illustration, the Crown referred to sequences 126 and 430 pertaining to victim Cameron Altmann (agreed facts paras 78-81). The applicant accessed the victim’s bank account and created a credit card on 11 July 2016, but did not commit any fraudulent transactions with that credit card until 27 July 2016. Similarly, for sequences 134 and 447 pertaining to victim Deserae Horswood (agreed facts paras 146-149) the applicant accessed the victim’s bank account and created a credit card on 20 July 2016, but did not commit frauds with that credit card until 9 August 2016.

8. [54]

   The Crown noted that his Honour did not make any specific findings about the structure of the criminal syndicate, nor did his Honour sentence the applicant on the basis that he was in charge of it. On the contrary, his Honour made it clear that when he referred to the applicant being “a principal”, he was referring to the actions actually carried out by the applicant when committing the relevant offence. It was on this basis that his Honour found that the applicant had a “substantial involvement” in the offending and that he played “a very important role … His role was persistent and determined and involved gross dishonesty in regard to multiple victims”. (Sentence judgment 27 and 29).

9. [55]

   The Crown also observed that apart from his breaches of bond, the applicant continued to commit offences in breach of conditional liberty despite being personally searched by police on 10 July, 9 August and 19 August 2016, and having his hotel room searched on 26 October 2016 and despite being called up on 8 December 2016.

10. [56]

    The Crown submitted that there was little to distinguish between the applicant and Ms Goh in relation to their breaches of conditional liberty and their criminal history.

Consideration

1. [57]

   There was no issue between the parties as to the relevant legal principle involved. Both sides relied upon the statements of principle in Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462 at [31] where the plurality (French CJ, Crennan and Kiefel JJ) said:

2. [58]

   More recently, this Court (Bathurst CJ, Schmidt and Hamill JJ) in Grabovac v R [2018] NSWCCA 100 said:

3. [59]

   In this matter the Crown submissions should be substantially accepted. While there is some overlap in criminality between the 57 s 192E(1)(b) charges of dishonestly obtaining a financial advantage by deception and the 27 s 308C(1) charges of causing an unauthorised computer function with intent to facilitate fraud, for the reasons set out by the Crown each offence retains its own separate component of criminality. What cannot be ignored in this matter is the sheer volume of offending on the part of the applicant. As the Crown has pointed out, the number of victims (at least 58) and the amount of money involved ($1.1 million), together with the fact that each sequence charged against the applicant was made up of many separate fraudulent acts, his Honour’s finding as to the seriousness of the offending was well open to him. So also were his Honour’s findings as to the seriousness of each of these offences in that they involved planning, organisation and a “brazen and systematic fleecing of the community”. While the applicant may not have been a “principal” in the sense that he was in a senior position in the syndicate, he was by far the most active of those persons engaged in the fraudulent activities of the syndicate and who came to be sentenced by his Honour on this and on earlier occasions.

4. [60]

   When looked at in that way, and as the Crown has submitted, there is in reality little similarity between the offending of the applicant and that of Ms Goh so as to give rise to a breach of the parity principle.

5. [61]

   It follows from the above that the orders which I propose are:

   1. (1)

      Leave to appeal against sentence is granted.

   2. (2)

      The appeal is dismissed.

6. [62]

   BRERETON JA: I agree with Hoeben CJ at CL.

7. [63]

   FULLERTON J: I agree with Hoeben CJ at CL.