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1. This is an appeal from sentences imposed by a magistrate. The only ground of appeal is that the sentences are manifestly excessive.

2. The charges and the sentences imposed by the magistrate are set out in the following table.

Series Charge and offence date Sentence imposed (maximum penalty)

CAN 4325/2022: Contravene protection 3 months’ order: s 35(2) of the Personal Violence Act imprisonment 2016 (ACT) (5 years, 500 penalty 2 November 2021 units (PU), or both) Group A (breach offences) CAN 9809/2022: Drive while disqualified: 1 month’s s 32(1)(a) of the Road Transport (Driver imprisonment Licensing) Act 1999 (ACT) (repeat offender) (1 year, 100 PU, or 29 September 2022 both)

CAN 10504/2024: Obtain property by 6 months’ deception: s 326 of the Criminal Code 2002 imprisonment (ACT) (10 years, 1,000 PU, Group B (offences 30 March 2024 or both) on 30 March 2024 involving CAN 10505/2024: Unlawful possession of 2 months’ 13 transactions stolen property: s 324(1) of the Criminal imprisonment on three cards of Code (6 months, 50 PU, or Mr M in 30 March 2024 both) four shops and purchases of CAN 10520/2024: Drive while disqualified: 3 months’ $756.73) s 32(1)(a) of the Road Transport (Driver imprisonment Licensing) Act (repeat offender) (1 year, 100 PU, or 30 March 2024 both) CAN 10521/2024: Use uninsured motor $600 fine with no time vehicle: s 289(1) of the Motor Accident to pay Injuries Act 2019 (ACT) (50 PU) 30 March 2024

CAN 10522/2024: Use unregistered vehicle: $300 fine with no time s 18 of the Road Transport (Vehicle to pay Registration) Act 1999 (ACT) (20 PU) 30 March 2024

CAN 3904/2025: Unlawful possession of 2 months’ stolen property: s 324(1) of the Criminal imprisonment Group C (offences Code (6 months, 50 PU, or on 4 January 2025 4 January 2025 both) involving two cards of Mr H CAN 3905/2025: Obtain property by 2 months’ and purchases deception: s 326 of the Criminal Code imprisonment totalling $134.05) 4 January 2025 (10 years, 1,000 PU, or both)

Group D (offence CAN 2212/2025: Trespass: s 11(1) of the $800 fine with no time on Public Order (Protection of Persons and to pay 17 November 2024 Property) Act 1971 (Cth) (10 PU) of trespass on 17 November 2024 residential premises)

CAN 1969/2025: Unlawful possession of 1 month’s Group E (offences stolen property: s 324(1) of the Criminal imprisonment on Code (6 months, 50 PU, or 19 January 2025 19 January 2025 both) involving two transactions CAN 1970/2025: Obtain property by 2 months’ on a card of Mr N deception: s 326 of the Criminal Code imprisonment totalling $120.40) 19 January 2025 (10 years, 1,000 PU, or both)

CAN 1960/2025: Unlawful possession of 2 months’ stolen property: s 324(1) of the Criminal imprisonment Code (6 months, 50 PU, or 13 February 2025 both)

CAN 1961/2025: Obtain property by 3 months’ Group F (offences deception: s 326 of the Criminal Code imprisonment on 30 January 2025 13 February 2025 (10 years, 1,000 PU, and or both) 13 February 2025 involving CAN 1965/2025: Fail to appear: s 49(1) of $1,500 fine with no four transactions the Bail Act 1992 (ACT) time to pay on two cards 30 January 2025 (2 years, 200 PU, or totalling $215) both)

CAN 1967/2025: Possess knife without $300 fine with no time reasonable excuse: s 382 of the Crimes Act to pay 1900 (ACT) (6 months, 10 PU, or 13 February 2025 both)

3. All of the sentences involving periods of imprisonment are the subject of the appeal. The effect of those sentences is usefully illustrated in the following graph.

4. The facts relating to the offending were summarised in the magistrate’s reasons as follows. I have inserted reference to the groups of offences described earlier and anonymised the names of the victims of the offending. Most of the charges the defendant has been charged with relate to the possession of one or more bankcards belonging to someone else and then the use of that bankcard to obtain property by deception. The possession of the bankcards carries a maximum penalty of 50 penalty units and/or six months’ imprisonment and the obtain property by deception charges carry a maximum penalty of 1,000 penalty units and/or imprisonment for 10 years. [Group B] The charges that relate to a Mr [M] - and I’ll state the facts relatively briefly. In relation to Mr [M], the defendant possessed three bankcards belonging to him. That’s about as much as needs to be said really about the offence itself. An aggravating factor on sentence is the defendant was on conditional liberty at the time, being a good behaviour order that he had entered into in December of the previous year. On 30 March, he used Mr [M]’s credit cards to purchase items to the value of $756.73 at the 7-Eleven Giralang, 7-Eleven Casey, BP Nicholls and Ampol Nicholls, between 6.00 am and 7.30 am. It is a moderately serious version of the offence given the rolled-up nature of the charge, given the amount that was taken. Again, he was on conditional liberty as a result of the good behaviour order that he had entered in December. On the same date, he was seen to be driving a car in CCTV footage taken from one of the stations that he had used the credit cards at. He was disqualified at the time. The repeated nature of his drive while disqualified offending makes the offence worse. This was his fifth drive while disqualified. There is, it seems to me, a clear disregard for disqualification periods that apply to him. Of some significance, he was also on conditional liberty with respect to that good behaviour order that I’ve already mentioned. One of the good behaviour orders was for the same offence that he committed on this occasion. At the same time, that is, on 30 March, the car that he was driving was both uninsured and unregistered. There is nothing in the facts that makes those offences particularly noteworthy. Of course he was also on conditional liberty at the time. [Group C] I then move to 4 January this year in relation to offences concerning a Ms [H]. He possessed Ms [H]’s Bank of Australia and Resolute International money cards on that date and he used them at the Coles Express in Hawker to make two purchases to the value of $134.05. That offending is more towards the lower end given the value of the items taken, although it is again a rolled-up charge. [Group D] Moving back in time briefly to 17 November last year, there is an offence of trespass. That carries a maximum penalty of 10 Commonwealth penalty units. He was seen on CCTV to be in the backyard of residential premises, which I agree with Mr Cronin makes that more serious than if he was on commercial premises. He also left blood at the location which no doubt was unsavoury for the owner. [Group F] 30 January this year he failed to appear in this court having given an undertaking on 7 January to do so. That offence carries a maximum penalty of 200 penalty units and/or imprisonment for two years. The facts did not reveal anything significant about that offending and I note that he was picked up by police shortly after an arrest warrant was issued. [Group E] 19 January this year concerned offending in relation to a Mr [N]. He had possession of Mr [N]’s ANZ bankcard and he used that card to make purchases from the Shell service station in Belconnen. That offending is towards the lower end. [Group F] On 13 February, which I understand was the date that he was arrested in relation to the warrant that had been issued for his failure to appear, he was found to have a knife in possession. Again nothing significant in the facts in relation to that offence. That offence carries a maximum penalty of 10 penalty units and/or six months’ imprisonment. [Group F] And finally, the offending concerning a Mr [D]. On 13 February this year, he was in possession of two Blue Tongue bankcards belonging to Mr [D] and he used those cards at the Shell service station in Belconnen, purchasing items to the value of $215 between 3.00 am and 4.20 am. Towards the lower end, although again it’s a rolled-up charge ...

5. So far as the subjective circumstances of the appellant were concerned, the magistrate had before him a pre-sentence report and some evidence of the appellant having completed construction-related courses while in custody. The appellant was, at the time of sentencing, 38 years old. The magistrate indicated that the appellant’s subjective circumstances were not discussed in any great detail in submissions. The pre-sentence report noted that the appellant had given inconsistent accounts of the frequency of his illicit drug use and that his mother indicated illicit substances were a significant problem for him. However, the appellant denied illicit substance use had contributed to the offences. There were no solid indications of a capacity for rehabilitation. The appellant had a very substantial criminal history. The magistrate summarised that in terms which were not challenged for the purposes of the appeal as follows: A drive while disqualified in 2022, for which he was sentenced in 23 and, as I noted before, he was on a good behaviour order at the time he committed the drive while disqualified presently before me; He has a previous possess knife without reasonable excuse conviction from 22; Obtain property by deception convictions from 2017, 2017, 2017, another one in 2017, another one in 2016; An unlawful possession of stolen property in 2016; Another obtain property by deception from the same year; Joint commission obtain property from the same year; A further offence of the same kind that year; A drive while suspended in 2016; Another obtain property by deception in 2016, a further one in 2016 and another; A minor theft from 2016; Unlawful possession of stolen property, 2016; Another drive while suspended from that year; A use unregistered vehicle from that year; A drive while suspended from that year; Another drive while suspended from that year and another; A theft from 2012; A burglary from 2012; Unlicensed driver from 2012, one from 2011; A minor theft from 2011; Receiving stolen property in 2011; A minor theft that year.

6. The submissions of the respondent pointed out that the appellant had seven prior convictions for failing to appear, four prior convictions for driving while disqualified, at least 20 prior convictions for theft, unlawful possession and deception offences, including some for which he had received sentences of imprisonment, and approximately 19 driving-related convictions. The offending dated back to 2010 and there were no significant gaps in the offending. Submissions

7. The appellant, in his written submissions, made six substantive submissions.

8. First, the appellant submitted that the sentence decision is subject to review for correctness, relying upon the decision in Alexander v Bakes [2023] ACTCA 49; 21 ACTLR 27.

9. Second, he submitted that there was a lack of concurrency between the charges, and that the magistrate “appears to have paid only lip service” to the principle of totality.

10. Third, while the magistrate made reference to the decision in R v Tracey [2020] ACTSC 28, where the starting point for using a stolen credit card to make purchases of $617.76 was 12 months’ imprisonment, the appellant pointed to the decision in R v Foster (No 2) [2025] ACTSC 241, where the deposit of a stolen cheque in the sum of $9,860.50 attracted a starting point of four months’ imprisonment.

11. Fourth, he submitted: “There is little by way of guidance about what informs the objective seriousness of this type of offending, but ultimately the submission is that whatever factors that may aggravate offending of this nature are not present here.”

12. Fifth, he submitted that there was “nothing to suggest the offending had significant impact on the victims” and noted that it was common for financial institutions to reimburse victims of fraud, which leaves the financial institution as the victim. In circumstances where no evidence was presented either way, the appellant submitted that he should not suffer detriment because of that possibility.

13. Sixth, the appellant accepted that the non-parole period was appropriate but submitted that the focus of the submission about manifest excess was on the head sentence, as whether or not parole was granted was a matter for the Sentence Administration Board.

14. In oral submissions, he submitted that, based upon sentencing statistics from NSW and the ACT, the NSW statistics demonstrated a lower proportion of cases involving obtaining a benefit by deception which were addressed by sentences of imprisonment. He submitted that there should be parity between the jurisdictions. He submitted that the sentences imposed for obtaining a benefit by deception in this court were too harsh. He submitted that, although there were different elements involved in minor theft when compared with obtaining a benefit by deception, sentences imposed for obtaining a benefit by deception should be set having regard to the six-month maximum penalty for a minor theft offence. Consideration

15. The first submission made on behalf of the appellant is incorrect. For the purposes of an appeal, it is necessary to establish a legal, factual or discretionary error. A sentencing decision involves the exercise of discretion. What must be established in an appeal in relation to a sentence is set out in House v The King (1936) 55 CLR 499. Where what is alleged is a sentence that is manifestly excessive, it is not for the appeal court to simply substitute the sentence which it would have imposed. Insofar as such an approach is suggested by the submissions made by the appellant, it is manifestly not correct.

16. The second submission made on behalf of the appellant, which relates to concurrency, cannot be accepted. As the graph of the sentences demonstrates, the magistrate has included a substantial degree of concurrency between offences committed on the same date where the credit cards reasonably suspected of being stolen were then used to obtain property by deception. So far as offences committed on separate dates are concerned, totality did not require the introduction of concurrency in order to avoid a crushing sentence. Having regard both to the objective and subjective circumstances, it could not be said that the overall sentence of 20 months’ imprisonment imposed was a crushing one.

17. The third submission points to a single previous decision relating to the penalty to be imposed for the depositing of a stolen cheque. This provides negligible relevant guidance as to the pattern of sentencing for offences of this type. Error is not demonstrated by pointing to a single different sentence and asserting, without more, that the different sentence demonstrates manifest excess in the present sentence. The requirement in s 33(1)(za) of the Crimes (Sentencing) Act 2005 (ACT) to have regard to current sentencing practice is not usefully contributed to by a reference to a single previous decision that happens to be favourable to the contentions of the party drawing attention to it.

18. The fourth submission relates to the objective seriousness of the offending. The objective seriousness of an offence under s 326 of the Criminal Code will be informed by the nature and the value of the property obtained, the form of deception and the person from whom the property is obtained. Given the unconfined nature of the offence provision, the obtaining of modest amounts of money through the dishonest use of someone else’s credit card will be at the lower end of objective seriousness for this offence. The objective seriousness of the offending is, however, increased by the fact that the charges are rolled-up charges involving multiple transactions and/or multiple cards. Further, the Group B charges were committed at a time when the appellant was on conditional liberty arising from the good behaviour order on the suspended sentences previously imposed. Having regard to the very significant maximum penalty for obtaining property by deception, the fact that the offences were at the lower end of objective seriousness does not preclude the imposition of substantial terms of imprisonment in order to achieve the purposes of sentencing.

19. The fifth submission is a surprising one. When people use stolen credit cards to purchase goods, such crimes are not victimless. It may be that the individuals whose cards are stolen are not ultimately out of pocket. However, that does not prove that they were not victims. In any event, so long as the appellant has obtained goods or services through the dishonest use of the credit card, someone will bear the loss, either the person in question, a financial institution or, more likely, the business that accepted the credit card payment for those goods or services. That the burden of the losses is borne in this way means that it is less visible and borne through a diffuse increase in the costs of doing business. However, there can be no doubt that the losses exist and that the appellant is the person responsible for them.

20. The sixth submission identifies that the focus of the appellant’s complaint is on the overall head sentence rather than the non-parole period. When looked at overall, the appellant was being sentenced for six series of offences and five of those series ultimately involved a custodial sentence. These series involved a pattern of offending indicating flagrant dishonesty from a person who had not been deterred by previous sentences of imprisonment imposed.

21. So far as the oral submissions made on behalf of the appellant were concerned, there is no statutory basis for a requirement that there be a similar pattern of sentencing in the ACT as that in NSW. Nor is there a basis in principle. Leaving aside any statutory differences, judges in different jurisdictions are required to give effect to the purposes of sentencing as they arise in the different jurisdictions. The appellant appeared to concede that judgments of this court were consistent with the sentences imposed by the magistrate. Even if the appellant wished to contend that those sentences were too harsh, their existence would indicate that what the magistrate did was consistent with the pattern of sentencing to which he was obliged to have regard under s 33(1)(za). In relation to the submission that the sentence should have been determined by giving significant weight to, even if not being bound by, the six-month maximum penalty for a minor theft, that is a course which would not have involved the application of the statutory maximum penalty provided for by the legislature.

22. Looked at overall, the fundamental point which the submissions and the appeal failed to grapple with was that the purposes of sentencing include deterrence of the appellant from further offending in future as well as protection of the community. That cannot avoid a proper assessment of the objective seriousness of the offending, but for a person with the criminal history that the appellant had, sentences of imprisonment of the type imposed by the magistrate were necessary to give effect to those purposes. Significant punishment was necessary to stop the appellant committing further offences in future and to protect the community from such conduct which, by these numerous offences, he demonstrated that he would otherwise engage in. The sentences imposed were clearly within the scope of the proper exercise of the sentencing discretion by the magistrate. Whether considered individually or in aggregate, the sentences imposed were not manifestly excessive. The appeal must therefore be dismissed.

Order

23. The order of the Court is: (1) The appeal is dismissed.

I certify that the preceding twenty-three [23] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: