Badaric v R

Medium Neutral Citation: Badaric v R [2025] NSWCCA 117

Hearing dates: 09 July 2025

Date of orders: 06 August 2025

Decision date: 06 August 2025

Before: Price AJA at [1];
N Adams J at [12];
Sweeney J at [26]

Decision: (1) Grant leave to appeal.
(2) Allow the appeal.
(3) Quash the aggregate sentence imposed in the District Court on 30 August 2024.
(4) Sentence the applicant to 4 years imprisonment with a non-parole period of 2 years and 6 months to date from 4 August 2023. The non-parole period will expire on 3 February 2026.

Catchwords: CRIME – appeals – appeal against sentence – fraud offences – where the sentencing judge erred in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by committing the offences – whether the error was material – whether the error had the capacity to affect the sentencing exercise – whether the sentencing judge may have taken a more adverse view of the applicant’s offending as a result of the factual error – appeal allowed – applicant resentenced
SENTENCING – where the applicant is to be sentenced for overlapping offences of dealing with the proceeds of his own crime – principles of accumulation and concurrency

Legislation Cited: Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 136(1)
Crimes Act 1914 (Cth), s 16A
Criminal Code Act 1995 (Cth), ss 11.1(1), 372.2(1), 400.6(1), 480.4, 480.5(1)
Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 22(2)

Cases Cited: Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
Clarke v R [2019] NTCCA 2
GP (a pseudonym) v R [2021] NSWCCA 180
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Kerr v R [2014] NSWCCA 235
Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
Newman (a pseudonym) v R [2019] NSWCCA 157
R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068
R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
Schembri v R [2010] NSWCCA 149
Standen v DPP (Cth) [2011] NSWCCA 187; (2011) 254 FLR 467
Subramaniam v R [2013] NSWCCA 159
Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135

Category: Principal judgment

Parties: Alexandru Vasile Badaric (Applicant)
Rex (Respondent)

Representation: Counsel:
A Francis (Applicant)
A Chhabra / M Rabsch / T Gooley (Respondent)
Solicitors:
Kiki Kyriacou Lawyers (Applicant)
Office of the Commonwealth Director of Public Prosecutions (Respondent)

File Number(s): 2023/00248384

HEADNOTE

[This headnote is not to be read as part of the judgment]

Alexandru Badaric, the applicant, pleaded guilty in the Local Court to various fraud related offences. On 30 August 2024, the sentencing judge, her Honour Judge Turner, after allowing the applicant a 25% discount for his pleas of guilty, imposed an aggregate sentence of 4 years and 2 months imprisonment, with a non-parole period of 2 years and 6 months imprisonment, commencing on 4 August 2023.

The applicant sought leave to appeal against his sentence on the sole ground that her Honour erred:

(a) in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by the commission of the offences when there was unchallenged evidence of as much, and, (b) in failing, in the evaluation of objective seriousness, to have regard to the intended quantum of the criminality yet finding as a matter adverse to the applicant that the offending only ceased because of the detection of authorities, and the fraud had the capacity to cause significant financial damage to victims.

The Court held, granting leave to appeal, allowing the appeal and resentencing the applicant:

As to Ground 1(a) (Sweeney J, N Adams J and Price AJA agreeing):

1. The sentencing judge erred in finding that there was no evidence as to the quantum of the debt where there was unchallenged evidence of such. The error was material in the sense that it had the capacity to influence the sentence because the quantum of the debt motivated the applicant to commit the offending: [8] (Price AJA); [15] (N Adams J); [47]-[53] (Sweeney J).

Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550; Newman (a pseudonym) v R [2019] NSWCCA 157 considered and applied.

As to Ground 1(b) (Sweeney J, N Adams J and Price AJA agreeing):

2. It was open to the sentencing judge to find that the offending ceased because the applicant was arrested by the police and that the operation had the capacity to cause financial harm to the victims. However, the error under Ground 1(a) had the capacity to influence the sentence in that her Honour may have taken a more adverse view to the applicant’s offending as a result of the factual error: [8] (Price AJA); [17] (N Adams J); [62]-[63] (Sweeney J).

As to re-sentence*:*

3. Both the applicant’s and Crown’s submissions were directed at materiality; neither party drew the Court’s attention to nor made submissions on the authorities of Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135 (“Thorn”); Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 (“Nahlous”) and Schembri v R [2010] NSWCCA 149 (“Schembri”): [1] (Price AJA); [18]-[19] (N Adams J).

(Per Price AJA)

4. The facts in the authorities of Thorn, Nahlous and Schembri are materially different from the present facts in the applicant’s case. This is not a case where the dealing with the proceeds of crimes does not involve a separate act of criminality. Although there was some overlap in criminality, the shared criminality is properly taken into account by the sentence being partially accumulated taking into account the principle of totality: [1]-[7] (Price AJA).

Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135; Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58; Schembri v R [2010] NSWCCA 149; distinguished.

Standen v DPP (Cth) [2011] NSWCCA 187; (2011) 254 FLR 467; Subramaniam v R [2013] NSWCCA 159; Kerr v R [2014] NSWCCA 235; R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068; Clarke v R [2019] NTCCA 2, cited.

(Per N Adams J, Price AJA agreeing)

5. Having regard to the finding of hardship to the applicant’s family, the importance of general deterrence, and correcting the factual error, the aggregate sentence imposed was 4 years imprisonment, with a non-parole period of 2 years and 6 months, to date from 4 August 2023: [9]-[11] (Price AJA); [21]-[25] (N Adams J).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37, applied.

R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534; R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434, cited.

JUDGMENT

1. PRICE AJA: I have read the judgments of N Adams J and Sweeney J in draft. I also am in respectful disagreement with Sweeney J’s reasons at [72]-[76] and adopt what is said by N Adams J at [17]-[18].

2. As to my disagreement with Sweeney J’s broad statement of principle at [76], the factual circumstances in dealing with the proceeds of crime in Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135 (“Thorn”); Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 (“Nahlous”) and Schembri v R [2010] NSWCCA 149 (“Schembri”), are materially different to the facts in the applicant’s case.

3. In Thorn, the applicant’s dealing with the money fraudulently obtained was confined to transferring the money to his personal account or drawing it from an ATM so he could use the money to gamble. In Nahlous, the applicant’s dealing with the money he received from the sale of the 50 decoders to an undercover police officer was confined to placing the money in his vehicle which was recovered immediately after his arrest.

4. It is unclear from this Court’s judgment in Schembri what the precise facts were in relation to the count of dealing with the proceeds of crime, but the Court was of the view at [16] (Beazley JA, Kirby and Johnson JJ) that the receipt of the money from the false Goods and Services Tax refunds did not result in a separate act of criminality that warranted a separate charge after citing with approval the following passage in Nahlous, where the Court stated at [17] (McClellan CJ at CL, Howie and Rothman JJ):

“We appreciate that a person can by the one act commit two offences and, where the two offences address different aspects of the criminal conduct, there is nothing wrong with prosecuting the two offences or, subject to the principle of totality, with imposing separate sentences for the two offences. But in our view the receipt of the money as a result of the sale did not result in a separate act of criminality that warranted a separate charge and a separate penalty.”

5. Money laundering offences of the type identified in Thorn, Nahlous and Schembri have been referred to as “highly technical”: Subramaniam v R [2013] NSWCCA 159 at [34] (Latham J, Emmett JA and Simpson J agreeing) (“Subramaniam”). That is not an apt description for the applicant’s dealing with the money by his dishonest activity. In the present case there is additional criminality. The applicant’s dealing with the proceeds of crime was not confined to depositing money in bank accounts, but involved fund transfers which occurred shortly after the money was deposited. A majority of the fund transfers were international, including transfers to an account in the name of the applicant in Romania.

6. This is not a case where the dealing with the proceeds of crimes does not involve a separate act of criminality. In such a case, the charge may be an abuse of process or the sentence should be concurrent: Standen v DPP (Cth) [2011] NSWCCA 187; (2011) 254 FLR 467 at [22]-[28] (Hodgson JA, Adams and Hall JJ agreeing); R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068 at [26] (Beech-Jones J).

7. Although there is in the present case some shared criminality with the offences by which the money was dishonestly obtained the shared criminality is properly taken into account by the sentence being partially accumulated taking into account the principle of totality: Subramaniam at [34]-[36] (Latham J, Emmett JA and Simpson J agreeing); Kerr v R [2014] NSWCCA 235 at [46] (Harrison J, Hoeben CJ at CL and McCallum J agreeing); Clarke v R [2019] NTCCA 2 at [75] (Grant CJ, Blokland and Barr JJ).

8. I agree with N Adams J and Sweeney J that the error under ground 1(a) had the capacity to influence the sentence and the applicant is to be re-sentenced: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

9. I agree with N Adams J at [21] and the sentencing judge that general deterrence is a significant consideration in this case.

10. In exercising my sentencing discretion afresh, I agree with the indicative sentences and aggregate sentence proposed by N Adams J. Any reduction in the non-parole period would not adequately reflect the objective gravity of the applicant’s offending: R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534 at [63] (Spigelman CJ); R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434 at [33] (Dunford J, Studdert and James JJ agreeing).

11. Accordingly, I agree with the orders proposed by N Adams J.

12. N ADAMS J: I have had the advantage of reading the judgment of Sweeney J in draft. I am grateful for her Honour’s summary of the evidence and submissions. Although I agree with most of her Honour’s reasons and findings, I expressly do not adopt what her Honour has written at [72] to [76], for reasons I will explain, and I would arrive at a different sentence on re-sentence.

“And in those circumstances an elevation upon the 22 months for the proceeds offence was not required in any significant way, and yet the sentence was 50 months which, obviously enough, is more than double what was determined to be the appropriate indicative sentence for the proceeds.

And so we say, understood in that way, because her Honour didn’t appreciate that the proceeds offence largely extinguished the quantum of the debt, her Honour didn’t appreciate that such other criminality, as there was not intended to enlarge by much the criminality that was contained by the proceeds offence.

So in all of those circumstances, we say that we have discharged materiality.”

(Emphasis added.)

15. During the hearing of the appeal, counsel for the Crown later accepted that the Crown could not exclude the reasonable possibility that the sentencing judge thought that the amount to be obtained was much higher than £30,000. On that basis, the issue of materiality was ultimately conceded by the Crown. I agree with Sweeney J that the conceded error in Ground 1(a) is material, and this Court is thus required to intervene to re-sentence the applicant: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37.

16. As for Ground 1(b), the complaint is that the error under Ground 1(a) led the sentencing judge to make two further findings adverse to the applicant relevant to the assessment of objective seriousness: that the offending ceased at the time it did because the applicant was arrested by police and that the operation had the capacity to cause significant financial damage to victims. The applicant contended that the error under Ground 1(a) “underpinned related concepts attaching to the future capacity of the fraud and disadvantageously obscured the applicant’s case”.

17. As Sweeney J has observed, it was not inaccurate for her Honour to state that the offending ceased at the time it did because the applicant was arrested by police. Nor was it inaccurate for her Honour to find that the operation had the capacity to cause significant financial damage to victims. These findings were open whether or not her Honour sentenced the applicant on the basis that his offending was open-ended as to quantum. In these circumstances, it seems to me that Ground 1(b) adds very little to the related complaint under Ground 1(a). Despite this, on balance, I am prepared to accept, as Sweeney J did, that the error under Ground 1(a) had the capacity to influence the sentence in that the mistaken finding that the intended criminality was open ended had the capacity to feed into the other two findings in a way adverse to the applicant.

18. As for the re-sentence, I adopt all of her Honour’s reasons save as for her Honour’s observations at [72]-[76]. I would prefer to express no view upon those paragraphs. The applicant’s submission referred to by her Honour at [72] is extracted at [14] above in support of establishing materiality. For my part, I did not understand that to have been a standalone submission that, in the event of re-sentence, this Court would depart from the approach to notional concurrence and accumulation taken by the sentencing judge on the basis of the principles derived from the decisions such as Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135, Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 or Schembri v R [2010] NSWCCA 149. The applicant did not refer to those authorities. Counsel for the Crown made no submissions on this issue either, perhaps because the applicant’s submission was one directed at materiality, which the Crown ultimately conceded. The Crown respond to the applicant’s subsequent submission that in the event of re-sentencing this Court would have regard to s 16A(2)(p) of the (Cth) (hardship to family) and did not oppose such a course being taken. Otherwise, the Crown’s position on re-sentence was reflected in its written submissions as follows:

“When an intermediate appellate court is re-sentencing an applicant, the usual practice is that the unchallenged findings of the sentencing judge are accepted: DL v R [2018] 265 CLR 215; [2018] HCA 32 at [9]. The Crown relies on the findings made by the Sentencing Judge.”

19. In the absence of any submissions from either the applicant or the Crown on the applicability of the principles derived from the decisions referred to above to the resentencing of the applicant, I would prefer to express no view upon those paragraphs of her Honour’s reasons on this issue.

20. Finally, as for the re-sentence, I have exercised the sentencing discretion afresh. I have adopted the findings identified by her Honour relevant to sentencing under a 16A of the Crimes Act 1914 (Cth). It is not necessary to set them out again.

21. Further, I would adopt the observations of the sentencing judge that general deterrence was a significant consideration in this case as were the purposes of punishment and denunciation (s 16A(2)(ja), (j) and (k)). There is an increasing prevalence of identity theft in Australia and the use of personal information to commit fraud. This sort of offending causes stress to victims. The actions of offenders using shimmers, such as the offender, cause persons using ATMs to fear that their PIN may be obtained and their bank accounts accessed. Similarly, banks rely on passports and driver’s licences being genuine. The presentation by the applicant of a false passport and driver’s licence (Sequence 9) undermined the banks processes. The fact that the applicant travelled to Australia specifically for the purposes of committing these offences only adds to the need for general deterrence, punishment and denunciation.

22. As for the application of the totality principle, I consider there to be overlap in criminality between Sequences 7 (possession of the fake driver’s licence), Sequence 9 (use of the fake passport at various banks) and Sequence 10 (provision of the false information at various banks). I also consider there to be overlap in criminality as between Sequence 12 (joint possession of the shimming devices and related identify theft paraphernalia), Sequence 14 (attempting to obtain personal information by installing shimming machines in various ATMs), Sequence 13 (dishonestly obtaining card numbers from shimming) and Sequence 11 (using the fake bank accounts to deposit money from the shimming).

23. Having regard to the finding of hardship to the applicant’s family and correcting the factual error as to the extent of the planned frauds, the aggregate sentence I have arrived at, particularly having regard to the need for general deterrence in this matter, is slightly lower than that imposed at first instance. I would fix a non-parole period of 2 years and 6 months to reflect the purposes of sentencing I have identified. Although this means that the aggregate sentence is only slightly lower than that imposed at first instance and the non-parole period is the same, that result is consistent with the principles derived from Kentwell v The Queen.

24. I would fix the following indicative sentences. I have applied the 25% discount to the proposed indicative sentences:

Grounds of appeal

46. The applicant’s grounds of appeal were:

“Ground One. The sentencing judge erred:

[a] in finding that there was no evidence of the quantum of the debt the applicant intended to extinguish by the commission of the offences when there was unchallenged evidence of as much, and,

[b] in failing, in the evaluation of objective seriousness, to have regard to the intended quantum of the criminality yet finding as a matter adverse to the applicant that the offending only ceased because of the detection of authorities, and the fraud had the capacity to cause significant financial damage to victims.”

47. The Crown conceded that the sentencing judge erred in finding there was no evidence of the quantum of the debt, and in oral submissions conceded that the error was material, in respect of Grounds 1(a) and 1(b), in the sense that it had the capacity to influence the sentence, in accordance with Newman (a pseudonym) v R [2019] NSWCCA 157 (“Newman”) and GP (a pseudonym) v R [2021] NSWCCA 180.

48. I note that the sentence hearing occurred on 28 June 2024 and her Honour sentenced the applicant on 30 August 2024.

49. Her Honour’s finding challenged in Ground 1(a) was as follows:

“I am satisfied that the offending by both offenders was for the purposes of financial gain. It was submitted on behalf of Mr Badaric that his motivation for the offending was to clear a debt he had incurred, and it was not for greed and personal enrichment. In this regard, I note there was no evidence before me as to the magnitude of the debt. Further, there was evidence before me, from both offenders, that despite Mr Badaric claiming to be making significant efforts to pay off the first loan and the second loan, he was also buying drugs. I am prepared to accept on balance, that the offender offended in this way, in order to clear a debt that he had been unable to clear despite trying to do so for some time.”

50. The applicant submitted, in respect of Ground 1(a), that it was a material error for her Honour to fail to have regard to the intended scale of the fraud, given that her Honour accepted that the applicant committed the offences to clear the debt he had been unable to otherwise clear, despite trying for some time.

51. Her Honour was mistaken that there was no evidence as to the magnitude of the debt as there was unchallenged evidence in the applicant’s affidavit of such, which the Crown did not challenge.

52. In Newman, Basten JA, referring to the High Court’s judgment in Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 (“Kentwell”) said at [12]:

“The first limb of the passage states that this Court does not assess, as a matter of fact, whether the error has influenced the outcome; what it does assess is the capacity of the error to have such an effect. An extraneous factor which does not ‘guide or affect the determination’ involves no miscarriage.”

53. It could not be said that the quantum of the debt which was the applicant’s motive to commit the offending was an extraneous factor.

54. The applicant did not challenge her Honour’s assessment of the objective seriousness of the offences, which were expressed in terms of “serious”, some more serious than others.

55. In assessing the objective seriousness of the offending, her Honour took into account that the conduct involved the applicant being trained in how to use the shimming devices, his obtaining a visa to travel to Australia, his travelling to Australia for the purpose of carrying out the “shimming” operation, the receipt of the specialised shimming devices from overseas, the insertion of the shimming devices into various ATMs to collect personal bank information of customers, the use of software to extract that personal banking information from the shimming devices, cloning bank cards with the stolen personal banking information, the use of encoded bank cards to withdraw money from the victims’ accounts, and the concealment of the stolen funds by diverting them into accounts held under false names. Her Honour was satisfied that the offending was “sophisticated, technical and lucrative” and that it involved a significant degree of planning and premeditation.

56. Her Honour took into account that the installation of the shimming devices in ATMs and the extraction of banking data was sophisticated, and involved widespread use against victims of banking information in relation to 35 different cards. Her Honour took into account the quantity of cash possessed by the applicant and Ms Vintila, the quantum of the money the applicant transferred through bank accounts, and the remittance of money offshore. Her Honour found that the shimming operation had the capacity to cause significant financial damage to victims and undermine consumer confidence in the everyday use of ATMs. She took into account the period of the applicant’s offending, from 18 May 2023 to 4 August 2023, which her Honour considered was not a short time period. Her Honour considered that coming to Australia for the purpose of and with the intention of committing the offences increased the applicant’s moral culpability.

57. Her Honour found that the offending involved some financial benefit for those who provided the applicant with equipment and trained him, but did not find that the applicant was assisting a wider criminal syndicate in respect of the money he obtained, but rather that he was operating autonomously.

58. Her Honour did not accept that it was a matter of last resort for the applicant to commit the offences.

59. The finding which is challenged is:

“… the offenders did not voluntarily desist in their conduct. I am satisfied these offences only ceased at the time they did because the offenders were caught by police.”

60. The applicant submitted that the intended financial gain was not at large or unknown and therefore the intended fraud was not of a magnitude that had the capacity to cause significant financial damage to victims. Counsel submitted that given the unchallenged quantum of the debt and the money obtained from the offending at the time of arrest, the criminality was almost complete.

61. The Crown accepted that the quantum of the debt which the sentencing judge found was the motivation to offend was not at large or in the millions of dollars, but in the tens of thousands of dollars.

62. It was not inaccurate for her Honour to say that the offending ceased at the time it did because the applicant was arrested by police. At the time of his arrest he was in possession of the shimming devices, associated installation tools and software, and the details of 35 bank cards of other people. Nor was it inaccurate, having regard to that number of cards, for her Honour to find that the operation had the capacity to cause significant financial damage to victims. There is anxiety in the community about people’s bank details being obtained and money being stolen from their accounts. What was significant financial damage to the owners of the 35 cards, the details of which the applicant already possessed, and the owners of cards the details of which were potentially to be obtained by future offending, is not known. It cannot be said that the approximate $36,000 which the applicant and Ms Vintila had obtained from their offending by the time of their arrest had not caused significant financial damage to at least some of the victims of their frauds.

63. However, I accept there was an intended limit to the applicant’s offending, which involved the repayment of the debt, payments to the person Mario who had trained the applicant in the shimming process, and the living expenses of the applicant and Ms Vintila while they were in Australia. To the extent that her Honour mistook that there was no evidence of the magnitude of the debt, that had the capacity to affect the sentence in that her Honour may have taken a more adverse view of the applicant’s proposed offending.

64. The applicant having established Grounds 1(a) and 1(b), the Court must resentence him: Kentwell.

65. In that regard, the applicant did not challenge her Honour’s findings of fact which I have summarised above and the assessment of objective seriousness.

66. Subjectively, the applicant is now 35. His children are aged 15 and 13 and are living with his parents, who are supportive of their son. They pointed out in their letter to the District Court that the applicant was 26 when his wife died suddenly in 2015. His youth during his wife’s illness and at the time of her death provides a context for the course he took of engaging in debt for his wife’s treatment which ultimately led to his offending. He has previously managed restaurants and intends to do so again when he returns to Romania and rejoins his family. He had no prior criminal history before this offending. He has undertaken courses in custody. He expressed remorse for his offending which I accept is genuine.

…

(p) the probable effect that any sentence … under consideration would have on any of the person’s family or dependants.

71. In resentencing the applicant I take into account the hardship to the applicant’s teenaged children, caused by his incarceration in a foreign country, their not having the care of their mother.

72. Counsel for the applicant submitted that the overall sentence did not need to exceed the sentence for the offence of dealing with money believed to be the proceeds of crime because all the other offending was ancillary to that offence. I consider that it is more accurate to characterise the offence of dealing with the proceeds of the applicant’s own offending as ancillary to the other offending. The gravamen of his offending was using the shimming devices to obtain people’s bank details and then dishonestly obtain funds from their bank accounts. His opening of bank accounts in a false name, using the false passport to achieve that, facilitated his dealing with the proceeds of the dishonest obtaining of money.

73. In Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135 (“Thorn”) Howie J (with whom Campbell JA and Rothman J agreed) said of a similar situation:

[27] “This was an unusual use of a money laundering offence. To the extent that there was an overlap with the fraud offences the charge represented the use of the funds that had been dishonestly obtained under those offences. The criminality was very much in the obtaining of the funds not in their use. It is somewhat analogous to a robber being sentenced for both the robbery and being in possession of the stolen goods. But in the present case, according to the maximum penalties prescribed, the money laundering offence was more serious than the frauds by which the money was obtained. Further the money laundering charge was used to punish the applicant for his criminality arising from his partner’s fraudulent conduct. As was noted earlier, there is no concept of a joint criminal enterprise under the Code, so the applicant could not be charged with his partner’s fraudulent activity even though it was common activity of them both.

…

[30] In sentencing for the money laundering offence the judge referred to a number of decisions of this Court including Ansari v R [2007] NSWCCA 204 and R v Huang and Sui [2007] NSWCCA 259. But those cases involved money laundering of a completely different character to that involved in the offence before his Honour. Ansari concerned persons who were intimately involved in dealing with money that was the result of some other person’s criminal activity so as to hide its source. That is money laundering in the true sense of that term and clearly the type of activity that the legislature had in mind in creating the offence. Similarly Huang and Sui were involved in money laundering as it is generally understood but at a lower level of criminality than in Ansari. They were involved in taking sums of money at the behest of another and depositing it in various accounts under false names to hide the source of the funds.

[31] But here the applicant was merely transferring the money obtained by the fraudulent claims from the company accounts to his personal account or drawing it from an ATM so that he could use it to gamble. He was doing nothing to hide the source or to change the nature of the funds. He was simply gaining access to them. The activity came within the scope of the offence under s 400.4, because the offence is so widely drawn. But it was a highly technical version of the offence.

[32] There is nothing in his Honour’s remarks that acknowledges the unusual use of this offence in this particular case…”

74. In Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58 (“Nahlous”) the Court (McClellan CJ at CL, Howie and Rothman JJ) was critical of the charging of a person with dealing with proceeds of crime constituted by receiving funds as a result of selling items dishonestly. The Court said that the receipt of money is the result of the sale and did not result in a separate act of criminality that warranted a separate charge and a separate penalty: at [17]. In Schembri v R [2010] NSWCCA 149 (“Schembri”) the Court (Beazley JA, Kirby and Johnson JJ) noted those previous two decisions and observed that in that case the offender had been charged with an offence of dealing with the proceeds of crime which arose out of the same facts as the GST frauds with which she was charged. The Court was of the view that the sentence for the offence of dealing with the proceeds of the offender’s own crimes should be concurrent with the sentence for the fraud offences.

75. I apprehend that that was the force of the submission by counsel for the applicant, even though the submission focused on the sentence for the proceeds of crime offence rather than the antecedent criminal conduct and the sentences for those offences. The Crown did not respond to that submission, although the Crown had submitted that a lesser sentence was warranted for the applicant by reason of the aspect of hardship to his children.

76. The effect of Thorn, Nahlous and Schembri is that where a person is to be sentenced for overlapping offending of dealing with the proceeds of his own crimes the sentence for the offence of dealing with proceeds of crime should be concurrent with the sentences for the other offending, not accumulated. That is the approach I have adopted in resentencing the applicant.

77. In resentencing the applicant the 25% discount for his pleas of guilty to the offences will be applied to the sentences indicated for the individual offences. They are:

78. Sequence 7, possessing identity information, being the false name passport and false name driver’s licenses, with intent to commit fraud – 4 months imprisonment;

79. Sequence 9, presenting the false name passport enabling the opening of new accounts – 18 months imprisonment;

80. Sequence 10, providing false information about that false identity to enable the opening of bank accounts – 9 months imprisonment;

81. Sequence 12, taking possession of and possessing the shimming devices – 18 months imprisonment;

82. Sequence 14, attempting to dishonestly obtain personal financial information by installing the shimming devices in three ATMs – 21 months imprisonment;

83. Sequence 13, dishonestly dealing in personal financial information, which involved obtaining details of 35 bank cards and using 4 of those cards to withdraw or transfer funds – 2 years imprisonment; and

Proposed orders

79. Therefore I propose the following orders:

80. Grant leave to appeal.

81. Allow the appeal.

82. Quash the aggregate sentence imposed in the District Court on 30 August 2024.

83. Sentence the applicant to 3 years and 6 months imprisonment with a non-parole period of 2 years imprisonment, to date from 4 August 2023.

**********

Endnote

In fact, the evidence before the sentencing judge in the applicant's affidavit was that this amount was expressed in pounds and not Australian dollars.