Rasel v R

1. [1]

   In Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 (Totaan), this Court ruled that a series of decisions of this and other intermediate appellate courts were clearly wrong insofar as they had construed s 16A(2)(p) of the Crimes Act 1914 (Cth) as requiring an offender to establish “exceptional hardship” before the effect of a sentence on the offender’s family or dependants could be taken into account in sentencing.

2. [2]

   Section 16A(2)(p) relevantly provides that, when sentencing for a federal offence, a sentencing judge must take into account “the probable effect that any sentence or order under consideration would have on any of the person's family or dependants”. In Totaan, this Court held that that subsection should be given effect according to its terms, and that there was no basis, textual or otherwise, for imposing a requirement that hardship must be exceptional before it could be taken into account. Totaan has since been applied in Director of Public Prosecutions (DPP) (Cth) v Vina Money Transfer Pty Ltd [2022] FCA 665 at [179]; and Rodgerson v R [No 2] [2022] VSCA 154 at [66]-[73].

3. [3]

   In the current case, Mr Rasel (the Applicant) pleaded guilty to a series of five federal offences involving both defrauding and attempting to defraud the Commonwealth. He was sentenced by her Honour Woodburne SC DCJ (the sentencing judge) on 16 November 2021, before Totaan was decided. In sentencing the Applicant, her Honour also took into account 20 related offences in respect of which the Applicant admitted his guilt, pursuant to s 16BA of the Crimes Act (the s 16BA offences).

4. [4]

   The sentencing judge imposed an aggregate sentence of 4 years imprisonment, commencing on 6 August 2021, with a single non-parole period of 2 years and 2 months. Accordingly, the Applicant will become eligible for parole on 5 October 2023. The aggregate sentence was imposed after allowing a 25% discount for an early guilty plea.

5. [5]

   The Applicant sought to rely on hardship to his family within the meaning of s 16A(2)(p) as a matter to be taken into account in his sentencing, and supported this submission with evidence to which I shall refer. Consistent with the state of the law pre-dating Totaan, the sentencing judge held that this evidence did not support a finding of exceptional hardship and thus could not be taken into account for the purposes of s 16A(2)(p). It should be noted, however, that her Honour did take this evidence into account as part of the Applicant’s subjective case, an approach consistent with R v Girard [2004] NSWCCA 170 at [21]; R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369 at [27] and Kaveh v R [2017] NSWCCA 52 at [40].

6. [6]

   The Crown accepts that, in light of Totaan, the sentence imposed was tainted by legal error, with the consequence that leave to appeal should be granted. The appeal must be upheld, the sentence quashed and the Applicant resentenced in accordance with Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 unless this Court is of the opinion that no lesser sentence is warranted in law: Criminal Appeal Act 1912 (NSW), s 6(3).

7. [7]

   For the purposes of resentencing, the Applicant has filed five affidavits which were read without objection and to which it will be necessary to refer in due course. These were of:

8. [8]

   It is first necessary to identify the five offences in respect of which the Applicant was charged and then to note the detailed agreed facts that describe the Applicant’s offending.

The charges

1. [9]

   The five offences in respect of which the Applicant was charged have been referred to as sequences 117 to 121, and were as follows:

   1. (1)

      Sequence 117: between about 2 July 2015 and 4 July 2015, at Homebush West and elsewhere in New South Wales, he did attempt, by deception, to dishonestly obtain a financial advantage from the Commonwealth, namely nine income tax refunds, by causing to be lodged with the Australian Taxation Office nine false income tax returns on behalf of nine natural persons for the year ended 30 June 2015. This offence was committed in contravention of ss 11.1(1) and 134.2(1) of the Criminal Code Act 1995 (Cth).

   2. (2)

      Sequence 118: between about 2 July 2015 and about 28 August 2015, at Homebush West and elsewhere in New South Wales, he did, by deception, dishonestly obtain a financial advantage from the Commonwealth, namely 20 income tax refunds, by causing to be lodged with the Australian Taxation Office 20 false income tax returns on behalf of 20 natural persons for the year ended 30 June 2015. This offence was committed in contravention of s 134.2(1) of the Criminal Code.

   3. (3)

      Sequence 119: between about 5 August 2015 and about 21 August 2015, at Homebush West and elsewhere in New South Wales, he did, by deception, dishonestly obtain a financial advantage from the Commonwealth, namely an income tax refund, by nominating with the Australian Taxation Office false bank account details for Laudy Germanos. This offence was committed in contravention of s 134.2(1) of the Criminal Code.

   4. (4)

      Sequence 120: between about 28 June 2015 and about 30 June 2015, at Homebush West and elsewhere in New South Wales, he did deal in identification information by using the names, dates of birth, tax file numbers and superannuation account numbers associated with 64 natural persons with the intention of pretending to be or passing himself off as those persons for the purposes of facilitating the commission of indictable offences against a law of the Commonwealth. That offence was committed in contravention of s 372.1(1) of the Criminal Code.

   5. (5)

      Sequence 121: on or about 4 July 2015, at Strathfield and elsewhere in New South Wales, he did produce documents, namely a Bangladeshi passport and a New South Wales police photo card issued in the name of Rian Khan, to an employee of the National Australia Bank, a reporting entity, knowing the documents were misleading and that those documents were produced in the course of an identification procedure under the Anti-Money Laundering (Counter-Terrorism) Financing Act 2006 (Cth). The offence was committed in contravention of s 137 of that Act.

2. [10]

   Sequences 117, 118, 119 and 121 attracted a maximum penalty of 10 years’ imprisonment, while sequence 120 was punishable by up to 5 years’ imprisonment. In relation to the related offences to be taken into account pursuant to s 16BA of the Crimes Act, items 1-19 carried a maximum penalty of 3 years’ imprisonment, and item 20 a maximum of two years.

Agreed facts

1. [11]

   The Applicant was sentenced on the basis of an agreed statement of facts, which was reproduced in the sentencing judgment. Omitting footnotes, the agreed statement of facts was as follows:

2. [12]

   It should be noted that by the time the Applicant was sentenced, he had made full reparation for the benefit of $64,541.13 which he had obtained from his offending.

The undisputed findings of the sentencing judge

1. [13]

   In supplementary written submissions, the Applicant indicated that he did not dispute the findings of the sentencing judge, save for the following:

   1. (1)

      findings with respect to hardship to the Applicant’s family;

   2. (2)

      the implicit finding that an intensive correction order was not appropriate or available in the circumstances of the case; and

   3. (3)

      the sentencing judge’s statement that she was “unable to find that [the Applicant] is unlikely to reoffend”.

2. [14]

   In relation to the objective seriousness of the offending, the sentencing judge considered that “each offence is properly to be assessed as a serious example of offending in contravention of the section.” In this context, her Honour made the following findings, which are not disputed by the Applicant:

   1. (1)

      the offending was systematic, sophisticated, and involved extensive planning and premeditation;

   2. (2)

      the period of offending was a relatively short one, at least compared to some other cases of similar offending;

   3. (3)

      although there was a breach of trust to a degree, it was not to a significant degree, as would be the case if the offender were a tax agent;

   4. (4)

      the offences were committed out of greed, although they were informed by the Applicant’s perception of his need or wish to provide for his family;

   5. (5)

      although the Applicant “has felt some obligation and/or desire to assist his family” and “sending money overseas [to family members in Bangladesh] is a source of financial pressure”, the offences were committed not out of financial need, but out of a deliberate choice to put the welfare of the Applicant, his wife and his family above the Australian community;

   6. (6)

      while taxation fraud offences generally have harmful consequences for the community at large, these consequences were ameliorated in this case by the fact that reparation had been made;

   7. (7)

      the offending adversely impacted each of the taxpayers whose identities were used by complicating their dealings with the ATO, and contributed to a loss of confidence in the efficacy and integrity of the taxation system; and

   8. (8)

      there was additional criminality involved in the s 16BA offences, particularly in respect of item 20, which involved maintaining a record of the tax file numbers of 7,060 other persons.

3. [15]

   The sentencing judge’s findings with respect to the Applicant’s personal circumstances can be summarised as follows. The Applicant was 29 years of age at the time of the offending, and was 35 years old at the time of sentence (he is now 36 years old). He was born in Bangladesh in 1986 as the eldest of five children, and had a stable family upbringing. He travelled to Australia in 2004 to undertake tertiary studies. His parents and two younger siblings continue to live in Bangladesh, while one brother is studying in Melbourne and a sister is studying in Sweden. He has one prior conviction for an offence of stealing property as a clerk/servant, committed in 2005. For that offence, he was sentenced to a good behaviour bond of 12 months.

4. [16]

   After graduating with a Bachelor of Business/Accounting in 2009, the Applicant maintained steady employment as a payroll officer. After graduating, he maintained employment as a payroll officer, including at Lindt between 2011 and 2014. In 2013 he became an Australian citizen, and in 2014 he married his wife, Ms Sharmin, in Bangladesh. They have a son who was four years old at the time of sentence, and is now five years old. At the time of sentence, Mr Rasel maintained employment as a Payroll Project Analyst at Wesfarmers/Blackwoods.

5. [17]

   The Applicant had no pre-existing mental health conditions at the time of the offending. There was evidence that he was subject to stress at the time of the offending, including financial stress and concern for his grandmother who had been diagnosed with ovarian cancer. However, there was no suggestion that there was a causal link between that evidence and the offending.

6. [18]

   Since the offending, the Applicant reported experiencing symptoms of anxiety and depression. Two psychologists expressed the opinion that the Applicant met the diagnostic criteria for moderate/severe major depressive disorder with anxious distress and mood-congruent psychotic features. The sentencing judge did not accept that the Applicant’s symptoms of anxiety and depression were due to feelings of overwhelming guilt for the offending, but nonetheless considered that his mental condition would make imprisonment more onerous, and that it called for some moderation of the need for general deterrence.

7. [19]

   Her Honour made the following further findings about the Applicant’s subjective case which were relied upon by the Applicant before this Court:

   1. (1)

      that he had shown contrition for the offence by making full reparation for the loss resulting from the offence;

   2. (2)

      that he had expressed remorse to a psychologist and to his family; and

   3. (3)

      that he had good prospects of rehabilitation.

8. [20]

   As to the impact of a custodial sentence on the Applicant’s family and dependants, in the context of s 16A(2)(p) of the Crimes Act, the sentencing judge said the following with respect to the Applicant’s wife and son:

9. [21]

   In relation to the effect of a custodial sentence on Applicant’s parents in Bangladesh, the sentencing judge said:

10. [22]

    The sentencing judge then concluded:

11. [23]

    As was conceded by the Crown, the sentencing judge’s reference to “exceptional hardship” in the above passage of the remarks on sentence reveals an erroneous approach to the application of s 16A(2)(p) of the Crimes Act. Nonetheless, in resentencing the Applicant, this Court must have regard to the factual findings of the sentencing judge concerning the effect of a custodial sentence on the Applicant’s family and dependants.

12. [24]

    These findings must be supplemented and, in one respect, qualified in that, whereas at the time of his original sentencing, the Applicant’s wife was not working, it would appear that she is currently in casual employment as an administrative assistant. The evidence was silent as to her earnings and her employment is only said to be available until the conclusion of this year.

Other supplementary evidence

1. [25]

   As I have indicated above at [7], the Applicant filed five supplementary affidavits on the “usual basis”, that is, to be taken into account for the purposes of the resentencing exercise once error has been established.

2. [26]

   In supplementary written submissions filed on 2 August 2022, the Applicant indicated that the finding sought to be made in reliance upon the supplementary evidence was “that members of the applicant’s family have suffered significant hardship since and as a result of his incarceration in November 2021.”

3. [27]

   The affidavit of Mohammad Babul Hasan, the Applicant’s father, demonstrates that the Applicant’s family in Bangladesh have experienced hardship by reason of his incarceration. In that affidavit, Mr Hasan says the following:

   1. (1)

      the Applicant was previously the only income earner in the family, and provided financial support to his family in Bangladesh to meet basic needs such as rent, groceries, utility bills, medications and study expenses for his younger siblings;

   2. (2)

      since the Applicant’s incarceration, his father has struggled to meet family expenses, and has had to sell properties to pay off loans;

   3. (3)

      the Applicant’s parents have fallen behind on their rental payments and, after selling personal items to raise funds, only have enough savings for three more months of rent;

   4. (4)

      the Applicant’s father and mother suffer from various health conditions, and are unable to find work;

   5. (5)

      the Applicant’s youngest sister has had to postpone her tertiary studies for an indefinite period as the family is unable to pay her tuition fees, and his youngest brother has may be unable to attend school for years 11 and 12.

4. [28]

   The affidavit of Rubaya Bintia Hasan, the Applicant’s younger sister, establishes the following matters:

   1. (1)

      since the Applicant’s incarceration, Ms Hasan has had to indefinitely cease her university studies, as her parents are unable to afford her tuition fees without the Applicant’s support;

   2. (2)

      her parents have been unable to afford their usual medications due to the loss of income previously provided by the Applicant;

   3. (3)

      the family has experienced distress because of the loss of financial support from the Applicant.

5. [29]

   The affidavit of Dillshad Ara Sharmin, the Applicant’s wife, together with its annexures, establishes the following:

   1. (1)

      she suffers from a number of health conditions, including type 2 diabetes, hypertension, iron deficiency anaemia, fatty liver disease and adenomyosis of the uterus;

   2. (2)

      she previously received regular iron transfusions, but is no longer able to attend her appointments as there is nobody to care for their son or drive her to the appointments (Ms Sharmin does not have a drivers licence);

   3. (3)

      she is unable to send their son to his childcare, as it is 12km away from their home;

   4. (4)

      she is experiencing financial hardship, and does not have sufficient funds to purchase daily groceries. Although she was able to freeze mortgage repayments for a period, the repayments recently recommenced, as her bank will not permit her to suspend them any longer;

   5. (5)

      she has experienced symptoms of anxiety and depression since the Applicant’s incarceration (an annexed letter from a treating psychologist indicated that her symptoms were consistent with “adjustment disorder mixed with down mood and anxiety”);

   6. (6)

      their son has been diagnosed with behavioural issues, and will be required to undertake speech, occupational and behavioural therapies to address developmental delays. Although no medical evidence has been provided to substantiate these diagnoses, an annexure contains correspondence from the National Disability Insurance Agency which indicates that an NDIS plan has been approved for their son (but does not appear to identify his condition);

   7. (7)

      their son’s behavioural issues have significantly worsened since the Applicant’s incarceration, and he has begun being physically violent towards Ms Sharmin; and

   8. (8)

      her mental health has been adversely impacted by the difficulties she has experienced maintaining contact with the Applicant while in custody, due to COVID-19 restrictions imposed on inmates and a five-hour round trip commute time to the correctional centre using public transport.

6. [30]

   In oral argument, counsel for the Applicant also made submissions concerning the additional hardship experienced by the Applicant while incarcerated as a result of the COVID-19 pandemic. In support of this submission, he relied upon the affidavit of the Applicant, sworn on 1 September 2022. That affidavit established, among other things, that the Applicant:

   1. (1)

      was unable to speak to members of his family for the first month of his time in custody, by reason of COVID-19 quarantine requirements and delays in having their contact numbers added to a directory;

   2. (2)

      was unable to have in-person visits with members of his family for the first five months of his time in custody;

   3. (3)

      spent a total of 61 days in isolation while in custody due to COVID-19 outbreaks in correctional centres, during which time he was unable to leave his cell or interact with other inmates;

   4. (4)

      was unable to see a psychologist for over five months after being placed in custody, whereas he had been consulting a psychologist every two weeks to treat his depression and anxiety disorders before being sentenced; and

   5. (5)

      has experienced distress at the knowledge of the hardships experienced by his wife and son during his time in custody.

7. [31]

   Finally, the affidavit of Phoebe McDougall, the Applicant’s solicitor, largely bears upon the Applicant’s conditions and behaviour in custody. It establishes the following:

   1. (1)

      between December 2021 and February 2022, the Applicant worked in the “internal grounds unit” at Parklea Correctional Centre, where corrective services staff found him to be polite, well-behaved and respectful;

   2. (2)

      from February 2022, after being transferred to the Dawn de Loas Correctional Centre, the Applicant worked in the Technology Workshop, where his supervisor described him as “reliable, diligent and hardworking”;

   3. (3)

      the Applicant has completed a number of training courses while in custody, and attends regular visits with the correctional centre’s Muslim chaplain; and

   4. (4)

      the Applicant has spent considerable time in isolation while in custody due to the COVID-19 pandemic, during which he is unable to contact his family either by phone or in person. He was also unable to give his family prior warning that he would be uncontactable.

8. [32]

   Counsel for the Applicant made the submission that, in light of the fact that the Applicant has spent a substantial period of time in full-time custody, which has been particularly onerous by reason of the COVID-19 pandemic, it would be appropriate to resentence the Applicant by imposing an intensive correction order.

9. [33]

   Counsel emphasised that, even if an intensive correction order may not have been an appropriate penalty at the time of the initial sentence in November 2021, this Court must resentence the Applicant having regard to events and circumstances which have occurred since the passing of the sentence by the sentencing judge, including the hardship experienced by him and his family during his incarceration.

Resentencing

1. [34]

   In approaching the Applicant’s resentencing, s 16A(1) of the Crimes Act requires the imposition of a severity that is appropriate in all of the circumstances, with the factors set out in s 16A(2) to be taken into account as are relevant and known to the Court, in addition to any other matters. Given his early guilty plea, it is appropriate to allow a discount on any sentence imposed. In this regard, I note that in proceedings before the sentencing judge, the Crown did not oppose a sentencing discount of 25%.

2. [35]

   I agree with the unchallenged finding in the proceedings below that the offending was systematic, sophisticated and involved extensive planning and premeditation. The agreed statement of facts set out above bears testament to this. The sentencing judge was correct in her description of the offending as “opportunistic” and involving the breach of three different positions of trust. Also unchallenged was the sentencing judge’s assessment that each of the offences was properly to be assessed as a serious example of offending in contravention of the Crimes Act.

3. [36]

   Although in some respects the offending occurred over a relatively short period, the offending did not come to an end as a result of the Applicant’s choice; rather it was the detection of the offending that brought it to an end. Far more extensive fraud was in train with taxation refunds in the sum of $117,824 being stopped by the ATO prior to payment (sequence 117). The Applicant, moreover, maintained a spreadsheet containing the tax file numbers of over 7,000 people headed “super including termination.xls” (item 20) from which the potential extent of his fraudulent conduct may be discerned. This was one of some 20 additional offences which fall to be taken into account pursuant to s 16BA of the Crimes Act.

4. [37]

   The other 19 cases involved the Applicant possessing identification information associated with some 19 individuals with the intention of using that information to pretend to be or to pass himself off as those individuals for the purposes of facilitating the commission of other offences. Again, these cast harsh light on the extent of the Applicant’s offending, and its potential reach. There is no doubt that the offences for which the Applicant was charged formed part of a course of conduct consisting of a series of criminal acts (s 16A(2)(c) of the Crimes Act).

5. [38]

   The impact of the offences on the persons whose identities were stolen cannot be underestimated. Although the moneys defrauded were repaid to the Commonwealth, there will not only have been real personal inconvenience to those whose tax refunds were fraudulently redirected as a result of the offending but a real sense of violation as their personal financial affairs were being interfered with without knowledge or authority. The violation extended to information concerning individual’s private health insurance, social security payments, residential addresses and banking details.

6. [39]

   The offences also involved a violation of the trust that had been placed in the Applicant by his various employers who were entitled to expect that he would respect the confidentiality of their employees’ financial and other details, and protect their identities.

7. [40]

   The Applicant’s offences call for the imposition of a sentence that has strong deterrent force, in terms both of its effect on the Applicant as well as on the community more generally. There are thousands of people, both in the private and public sectors, who are entrusted, as was the Applicant, with roles relating to the payment and financial arrangements of their fellow employees. Such persons should be under no illusion that abuse of these positions of responsibility is not acceptable and warrants condign punishment.

8. [41]

   The Applicant’s personal circumstances have been referred to at [15]-[18] above. There is nothing particularly remarkable about them. He was a relatively young man who had had the benefit of a tertiary education in Australia, had started a new life here and who had successfully secured employment in roles of responsibility. That trust was abused and the opportunities squandered by what was found to be the Applicant’s greed. Motivation to assist one’s family, usually a matter to be admired, generally loses any positive character when that assistance is secured by unlawful means. So it was here.

9. [42]

   Much of the supplementary evidence led as to “probable effect that any sentence would have on any of the [Applicant's] family or dependants” must be viewed with this in mind in the sense that, to the extent that the support that the Applicant had previously provided to his immediate family, his parents and siblings was derived from his ill-gotten gains and generated an expectation of ongoing support, that was a source of support that they were not entitled to receive in the first place.

10. [43]

    Nevertheless, especially with regard to his wife and child, there is no doubt that there has been a very serious impact on both of them on account of the Applicant’s incarceration, and I take into account the significant hardship that is no doubt being suffered by them. On the other hand, that is ameliorated in a limited sense by the matter referred to in [24] above. While I also take into account the impact of the Applicant’s incarceration on his parents and siblings, I give it less weight in light of their less direct relationship with the Applicant.

11. [44]

    As with the sentencing judge, in the context of the Applicant’s subjective circumstances, I take into account the impact on him of knowing that his family have suffered, and no doubt continue to do so, as a result of his incarceration.

12. [45]

    I also accept that the Applicant, as with all of the prison population during the period of the COVID-19 pandemic, has suffered the significant additional burdens of lockdowns and extended periods of isolation in prison to a greater degree than would normally be the case. The evidence was that the Applicant had been required to be in isolation for almost nine weeks (61 days). COVID-19 and associated restrictions have undoubtedly had a severe impact on those in prison, whose liberty is already severely curtailed by reason of their incarceration.

13. [46]

    The evidence also supports the view that the applicant has been a reliable and conscientious prisoner during the period of his incarceration. So much is consistent with the sentencing judge’s findings, which I also accept, that the Applicant had shown contrition for his offences by making full reparation for the loss resulting from the offence; that he had expressed remorse to a psychologist and to his family; and that he had good prospects of rehabilitation.

14. [47]

    Like the sentencing judge and notwithstanding the assessment that the Applicant has good prospects of rehabilitation, I am reluctant to make the positive finding that he is unlikely to offend again given the multiplicity of the offences and, more particularly, the fact, as recorded by the sentencing judge, that he had been sentenced in 2005 for a dishonesty offence of stealing property as a clerk/servant, for which he was sentenced to a 12-month good behaviour bond pursuant to s 9 of the Crimes (Sentencing Procedure Act) 1999 (NSW) (as in force at that date).

15. [48]

    Having regard to all of these matters, including allowing for the fact that I would, like the sentencing judge, have allowed a 25% discount for the Applicant’s early guilty pleas, I am not satisfied that any lesser sentence should be imposed on the Applicant for what were five significant offences involving extensive criminality, reinforced by the 20 items separately to be taken into account pursuant to s 16BA of the Crimes Act.

16. [49]

    For completeness, the conclusion expressed in [48] above means that this is not a case where an intensive correction order could be imposed: s 68(2) Crimes (Sentencing Procedure) Act.

17. [50]

    As such, whilst I would grant leave to appeal, I would dismiss the appeal.

18. [51]

    PRICE J: I agree with Bell CJ.

19. [52]

    LONERGAN J: I agree with Bell CJ.