Ishaq v R

The Crown's submissions

1. The Crown contended that where an aggregate sentence has been imposed, the appeal lies from the aggregate sentence, not the indicative sentence.
2. The Crown further submitted that whilst the indicative sentence of 2 years and 3 months for Count 1 (the s 192J charge) was not lenient, the applicant had not demonstrated that the indicative sentence was outside the range. It was further submitted that the indicative sentences for Counts 3 and 4 (the s 193B(3) charges) were not outside the statistical range, and were consistent with the objective seriousness attributed to them by the sentencing judge.
3. The Crown contended that neither Ke nor Hraiki assisted the applicant's argument.
4. The Crown submitted that the applicant's argument based on these two decisions was flawed because the value of the money or items recklessly dealt with was only one of the factors involved in the assessment of objective seriousness and forms only part of the instinctive synthesis in determining a sentence.
5. As to the statistics relied upon by the applicant, the Crown contended that they did not show that the sentence in the present matter was outside the general range. The statistics in relation to s 193B(3) Crimes Act matters dealt with in the NSW Higher Courts between 24 September 2018 and 30 June 2022 showed 41.5% were sentences of full-time custody, whilst 34% received an ICO - showing that 75.5% received a term of imprisonment, however served. Of those who received full-time custody, 27.3% received 24 months and for those who received an ICO, 27.8% received a 24 month sentence.
6. As to those sentenced in the Local Court between October 2018 to September 2022, 13.3% were given full-time custody, with 45% receiving a sentence of greater than 12 months. 30.7% were given an ICO with 43.5% receiving a sentence of greater than 12 months.
7. The Crown noted there were very few comparative sentences for s 192J offences with only two recorded in the NSW Higher Courts - one of which involved a sentence of 6 years and 6 months, and the other 5 years' imprisonment. There did not appear to be any sentence appeals to this Court which have focussed on s 192J.

Consideration

1. The principles concerning manifest excess were summarised by this Court in Hughes v R [2018] NSWCCA 2 at [86] (Payne JA, R A Hulme and Garling JJ): "When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59]: (1) appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases; (2) intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error; (3) it is not to the point that this Court might have exercised the sentencing discretion differently; (4) there is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle; and (5) it is for the applicant to establish that the sentence was unreasonable or plainly unjust."
2. A substantial part of the applicant's attempt to make good his ground of appeal that the aggregate sentence was manifestly excessive was his argument that the indicative sentences for the s 193B(3) offences were too high. This appeared largely to be based on a comparison between the total value of the items in the comparative cases compared to the "modest" amounts involved in the offending of the applicant.
3. In my view, this argument cannot be accepted.
4. First, where an aggregate sentence has been imposed, the appeal lies from the aggregate sentence, not the indicative sentences: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at [40]. As Bathurst CJ observed in Kerr v R [2016] NSWCCA 218 at [114] even if an indicative sentence is excessive, it does not necessarily follow that the aggregate sentence must be excessive, although the indicative sentences may be a guide.
5. In any event, I am of the view that the indicative sentences for the s 193B(3) offences are not themselves "too high", nor are they unreasonable or plainly unjust. An offence contrary to s 193B(3) (involving recklessness) carries a maximum penalty of 10 years' imprisonment (as compared to a maximum penalty of 20 years for an offence contrary to s 193B(2), an offence requiring knowledge). The offending in this case involved a high degree of recklessness. This can be gleaned from the applicant's accounts (including false accounts) of his connection to those involved with stealing some of the goods as set out in the agreed facts (referred to above at [30]-[32]), as well as the short period of time between the stealing of some of the items and when they were first listed for sale by the applicant on eBay.
6. Second, contrary to the submission of the applicant, the value of the goods sold is not necessarily the weightiest factor in determining the criminality of the offending. As the Crown contended, the value of the money or items involved in the offending is only one of a number of factors involved in determining the objective seriousness. The criminality must be viewed as a whole. The sentencing judge properly referred to the large volume of property involved, the pattern of behaviour, and the way in which the applicant "disguise[d] his involvement from […] detection by law [enforcement] authorities". It can be noted that the selling of the stolen goods not only involved the use of an eBay and PayPal account using false identification, but also a bank account linked to the PayPal account in a further false name.
7. Further, the sentencing judge was correct in accepting that the offences were aggravated in that they involved a series of criminal acts (s 21A(2)(m) Crimes (Sentencing Procedure) Act), and also that the offending was committed for financial gain (s 21A(2)(o) Crimes (Sentencing Procedure) Act).
8. As to the s 192J offence, it was open to the sentencing judge to find that this involved a cynical and opportunistic use of a fellow citizen's identity to facilitate the commission of many sales of goods over a significant period of time for pure financial advantage. That such conduct undermined the integrity of organisations such as eBay and PayPal, which now play a very significant role in the day-to-day dealings of the purchase of items by members of the community, is not contested.
9. In light of these factors, the finding by the sentencing judge that the offences did not lie at the low range of objective seriousness but below the mid-range of objective seriousness was well open to his Honour. The indicative sentences appropriately reflected that finding.
10. As to the aggregate sentence of 3 years, it can be observed that there is a marked degree of concurrency between the indicative sentences. This course was appropriate in light of the interlinked nature of the offending.
11. As to the sentence being served by way of ICO, it is uncontroversial that the imposition of an ICO carries with it "a significant element of leniency": R v Pullen [2018] NSWCCA 264; (2010) 275 A Crim R 509 at [53] (Harrison J, with whom Johnson and Schmidt JJ agreed); Shavali v R [2022] NSWCCA 178 at [64] (Wilson J, with whom Cavanagh J agreed).
12. Further, the two comparative sentences relied upon by the applicant do not assist the applicant.
13. The applicant in Ke had pleaded guilty to one count of recklessly dealing with the proceeds of crime contrary to s 193B(3) of the Crimes Act. The substance of the plea was that the applicant sold baby formula which had been stolen, in circumstances where she was reckless as to whether it had been stolen. She was sentenced by Herbert DCJ to a term of imprisonment of 2 years and 3 months with a non-parole period of 18 months. Her partner had pleaded guilty to the same offence. The applicant Ke was found to have liaised with those responsible for the theft of the baby formula; engaged in multiple transactions, in the course of which she received quantities of the stolen baby formula from at least six separate suppliers; at least on one occasion chose an ill-frequented area to collect the formula; was responsible for on-selling the formula; engaged in the conduct for about nine months and caused $394,000 to be deposited into accounts controlled by the co-offender. Like this applicant, the applicant Ke had no prior criminal record, and could point to charitable and community work she had completed. Whilst the applicant Ke's sentence was reduced on appeal, the only basis on which the appeal succeeded was a failure to afford the appropriate discount (25% rather than 10%) to her for her earlier indication of a plea to the charge for which she was ultimately sentenced. The reduction was not founded on the basis of manifest excess per se. On appeal the sentence was reduced to imprisonment of 1 year and 10 months with a non-parole period of 14 months and recognition was afforded to the "not insignificant" subjective case of the applicant, including her mental health condition.
14. Hraiki was argued in the Court of Criminal Appeal only on the basis that the sentencing discretion miscarried because of an inadequate discount for assistance. The applicant abandoned a ground based on manifest excess. The applicant in Hraiki was sentenced for four offences (three counts of contravening s 193B(3) and one count of contravening s 192E(1)(b) (dishonestly obtain financial advantage by deception)). The s 192E(1)(b) offence involved assisting another person with false documents to obtain a loan by receiving money for the other person in a trust account and allowing the deposit of fraudulent cheques into a company account for which he had legal responsibility. The applicant had no criminal convictions. The sentencing judge had specified individual sentences rather than an aggregate sentence. For the offences against s 193B(3) of the Crimes Act, he was sentenced to 1 year and 5 months for an amount involving over $300,000, 1 year and 9 months for an amount involving over $170,000, and 1 year and 9 months for an amount just under $100,000. For the dishonestly obtain financial advantage by deception, namely an investment loan of $920,000 (s 192E(1)(b)), he was sentenced to 2 years and 3 months imprisonment (which included taking into account matters on a Form 1). The total effective sentence, affirmed on appeal, was 2 years and 9 months imprisonment with a non-parole period of 1 year and 5 months.
15. Not only are these cases to be distinguished on matters which set them apart from this case, but such a small selection of cases cannot establish that the sentence imposed in this case was unreasonable or plainly unjust: The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 at [25]. Further, as stated in Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [54]: "In Director of Public Prosecutions (Cth) v De La Rosa, Simpson J accurately identified the proper use of information about sentences that have been passed in other cases. As her Honour pointed out, a history of sentencing can establish a range of sentences that have in fact been imposed. That history does not establish that the range is the correct range, or that the upper or lower limits to the range are the correct upper and lower limits. As her Honour said: 'Sentencing patterns are, of course, of considerable significance in that they result from the application of the accumulated experience and wisdom of first instance judges and of appellate courts'. But the range of sentences that have been imposed in the past does not fix 'the boundaries within which future judges must, or even ought, to sentence'. Past sentences 'are no more than historical statements of what has happened in the past. They can, and should, provide guidance to sentencing judges, and to appellate courts, and stand as a yardstick against which to examine a proposed sentence'. (Emphasis added.) When considering past sentences, 'it is only by examination of the whole of the circumstances that have given rise to the sentence that "unifying principles" may be discerned'." (Footnotes omitted.)
16. I am further of the view that the statistics do not assist the applicant.
17. In summary, in light of the maximum penalties, the number of offences (both on the indictment and on the Form 1), the objective seriousness of the offending, the importance of general deterrence and denunciation together with the inherent leniency built into an ICO, the sentence imposed on the applicant was well within the discretion of the sentencing judge.
18. The ground of appeal is not made out.
19. The orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed.
20. SWEENEY J: I agree with the orders and reasons of McNaughton J.

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