P -v- AMIR SHAHZAD [2009] NSWLC 20

The offender is charged with 5 counts of obtaining a financial advantage by deception. Each charge is brought pursuant to Section 178BA(1) of the Crimes Act 1900. The maximum penalty for an offence contrary to the provisions of Section 178BA of the Crimes Act 1900 is 5 years imprisonment.

The law is well settled that within the Local Court regard must be had to the maximum penalty identified by Parliament. The creation of a sentencing ceiling of two years for an individual offence within this jurisdiction is not an indication of the maximum penalty that is appropriate for the offending behaviour. As the Court said in R -v- Doan (2000) 50 NSWLR at [35] "the result of the true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court that court should impose a penalty reflecting the objective seriousness of the offence tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument .. that in lieu of the prescribed maximum penalties exceeding two years imprisonment a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment … be reserved for a "worst case".

The offences before the Court represent a course of conduct in July 2007 and again in March- April 2008. On each occasion the modus operandi of the offender involved him obtaining a number of false identity documents in false names and through those documents, obtaining credit cards from various financial institutions. The accused used the credit cards to divert money into his businesses and for personal day-to-day expenses. The agreed facts disclose he had no intention of repaying the financial institutions involved. A comprehensive statement of agreed facts is attached to these sentencing remarks. The combined total of moneys obtained by these 5 instances of unlawful and dishonest conduct is $59,772.38. It is clear from the facts that the offences were committed out of greed not need. It is also clear that there are aggravating factors in relation to the offending that the Court needs to take into account.

Having outlined the context, nature of the offending and relevant background considerations on the issue of possible penalty I turn to the factors set out in Section 21A of the Crimes (Sentencing Procedure) Act 1999.

Section 21A is divided into two areas of competing consideration - those factors that are to be taken into account by the Court as circumstances of aggravation [Section 21A(2)] and those that are to be considered in mitigation of penalty [Section 21A(3)]. Aggravating factors

Section 21A(2)(d) places a statutory requirement on the court to take any prior record of offending into account on sentence.

In R -v- McNaughton [2006] NSWCCA 242 the Court set out the principles applicable to Section 21A(2)(d). Those principles are set out in the Sentencing Bench Book at 5561 and need not be recounted in these remarks. I have considered them for the purpose of these proceedings. I have also taken into account the recent decision of Tsakonas -v- R [2009] NSWCCA 258 which puts to rest that poorly based nostrum that "previous convictions for driving offences precludes a finding that an offender has demonstrated a continuing disobedience for the law as described in Veen (No 2) (1988) 164 CLR 465".

In R -v- Walker [2005] NSWCCA109 the court said it is incumbent upon the sentencing court to make clear the precise way in which an offender's record has been taken into account. Mere reference to the statutory provision is insufficient.

The offender has been involved in the criminal justice processes of the Local Court since 1994. On 6 occasions he has been sentenced for a range of criminal offending - two driving offences in 1994 and 2006 that undoubtedly represented a danger to the community, a domestic violence offence in 1995 and 4 occasions of offences of dishonesty including, in 1997 offences of a similar nature to that for which he is to be sentenced by this Court.

In these proceedings I have taken the offender's prior record into account [in addition to the requirements of Section 21A(j)] as having a direct bearing on considerations set out in Section 21A(3) as mitigating factors. It is the view of the court that objectively by reason of his prior record and its context relevant to the matters before me that the offender cannot effectively establish Section 21A(3(g) or (h) as factors relevant to mitigating the penalty. At best his prospects in this area remain speculative.

It is also pertinent to note that the offender was on conditional liberty at the time of the commission of the first of the offences to which a plea of guilty has been entered. On 4th October 2006 he was released on a bond pursuant to Section 10 of the Sentencing Act 1999 in relation to a drug prosecution. It is trite to observe that the basic expectation of being released on such a bond is that the offender will be of good behaviour during the currency of the term fixed for the bond. This is relevant in relation to that offence in accordance with the provisions of Section 21A(2)(j). The objective seriousness of the offence to which the provisions of Section 10 were applied is irrelevant. It is the fact of breaching that bond that provides the aggravating circumstance. As the Court said in R -v- Cicekdag (2004) 150 A Crim R 299: " The commission of offences on parole demonstrates that the expectation of rehabilitation of the prisoner has not been realised and that through his own conduct the substantial mechanism designed for rehabilitation that is parole, has failed to achieve its purpose. The court in such circumstances cannot proceed on the same expectation of rehabilitation that is open in other circumstances." 12. Whilst a breach of parole might be regarded as more serious than a breach of a good behaviour bond, irrespective of the provision under which the bond was granted, the observations remain in my view analogous. In light of the offender's previous record and the breach of a current bond it would be an abandonment of the Court's responsibility to protect the public were it to yet again consider taking the offender at his word and releasing him on yet another good behaviour bond.

13. The aggravating factors under Section 21A(2) do not conclude with this observation. I agree with the submission made by the prosecution (inter alia) that the offender's conduct, involving as it did multiple victims and a significant level of planning designed ultimately to produce monetary gain at the expense of the victims also attracts the application of the provisions of Section 21A(2)(m), (n), and (o).

14. The agreed facts establish unequivocally that the offender engaged in a systematic course of conduct designed to defraud and to avoid detection. He created a series of false identities, obtained significant amounts of money and used it either in his business, for the purchase of illegal drugs or for other personal advantage. Objectively these offences were committed for greed in the form of gambling and the pursuit of his drug habit. There is nothing of a redeeming nature that might be said to justify in any way the nature of his offending behaviour. Mitigating Factors

15. What then may be said in favour of the offender? It is well settled law that a plea of guilty is a factor that may be taken into account in mitigation of penalty. So much is implicit from the words of Section 22 of the Act and from the Common Law. It is also identified in Section 23A(3)(k). The importance of a plea of guilty is highlighted by the High Court in Siganto -v- R (1998) 194 CLR 656 at 663-4 wherein the Court said:

"a plea of guilty is ordinarily a matter to be taken into account in mitigation; first because it is usually evidence of some remorse on the part of the offender and second on the pragmatic ground that the community is spared the expense of a contested trial. The extent of the mitigation may vary depending on the circumstances of the case.

16. The approach in relation to a plea of guilty is further amplified in this State from the guideline judgment R -v- Thomson & Houlten (2000) 49 NSWLR 383 which speaks of the utilitarian value of a plea to the criminal justice system and identifies a range of discount varying from 10-25%. As part of the guideline states:

"(iii) The primary consideration determining where in the range of a particular case should fall is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge." 17. It cannot be reasonably argued in these proceedings that the offender is deserving of a discount towards the upper end of the range. He was charged with the offences to which he ultimately entered a plea of guilty on 22nd August 2008. Initially he was charged with a number of other offences of a similar type. These have been withdrawn. Putting that observation to one side on 25th August 2008 the offender entered a plea of not guilty to each charge, including those before the Court. The prosecution, in accordance with statutory requirements prepared and served a brief of evidence upon the offender. The Court allocated 3 days for a contested hearing. On 29th July 2009 the date intended for the first day of hearing the offender entered a plea of guilty to 5 charges. The prosecution withdrew the remainder.

18. In view of the history of the matter I agree with the observations of the prosecution set out in its written submission in relation to the timing of the plea. It cannot be successfully argued that the plea of guilty was entered early in the proceedings.

19. It is clear there has been a degree of negotiation between the prosecution and the defence but there has been no substantive change to the charges to which a plea of guilty was eventually entered. It is often overlooked in relation to the opportunities that are available under Section 22 of the Sentencing Act that it is entirely within the capacity of a guilty person to give an indication of an intention to plead guilty rather than to commit them by formally entering such a plea on the record. Section 22(1)(b) is clear in that regard. That the offender chose not to pursue such a course may have been a tactical decision taken by him with or without appropriate advice. It should be emphasised however that the offender was unequivocal in relation to this prosecution. He entered a plea of not guilty to each and every charge initially preferred against him, including those to which a plea was eventually entered and which the Prosecution accepted was in full satisfaction.

20. The principle in such circumstance is well settled. R -v- Dib [2003] NSWCCA117, R -v- Harmouche [2005] NSWCCA 398 and R -v- Stamboulis [2006] NSWCCA 56 together with the recent and compelling decision of R -v- Borkowski [2009] NSWCCA 109 separately and in combination establish a landscape in which the opportunity to maximise the benefit of a plea may be gained, and one wherein unwise failure to grasp such an opportunity will have consequences. The reasons are transparent.

21. In R -v- Stamboulis the court said: " There is no utility in a plea of guilty that has not been forthcoming. If the accused is not prepared to plead guilty until the Crown takes some course then so be it. But if by withholding the plea the offender achieved the result he wanted I do not understand why he should receive further favourable treatment on the basis that the plea of guilty had a utilitarian value when it did not. Rarely, if ever will the reason why the accused withheld the plea of guilty be a relevant matter in determining the utilitarian discount. Where it has been used as a bargaining tool in order to achieve a favourable outcome from the Crown in respect of some other charge I do not understand that this circumstance can excuse the delay or provides a basis for asserting that the plea was made at the first reasonable opportunity"
22. It will be obvious that the manner in which the offender approached these proceedings does not entitle him to a significant discount for the utilitarian value of his eventual plea. It cannot be said that by his plea he assisted greatly in the administration of justice, quite the contrary. As a result of his initial plea the prosecution was required to prepare and serve a brief of evidence. The Court in order to meet the circumstances was informed that 3 days of valuable court time would be required to hear the matter. It allocated that time. On 9th July 2009 the offender confirmed that all was ready for the special fixture hearing to proceed. All the while the offender knew better than anyone else that he was guilty of the offences to which pleas were ultimately entered. Whilst there is a marginal benefit to the administration of justice to be gained by a plea of guilty, even one entered at one minute to midnight the benefit cannot be significant. I identify the value of the discount at 15%, towards bottom of the range identified in the guideline decision of R -v- Thomson & Houlten.

I turn to other relevant mitigating factors set out in Section 21A(3) of the Act. In my view Section 21A(3)(a) has no application. Objectively a combined loss to the victims of close to $60,000 is substantial. It has not been repaid. It has been argued before me that there are good prospects of rehabilitation such that Section 21A(3)(h) applies to mitigate the penalty. The nature of the offender's record and previous opportunities for reform makes this submission as indicated earlier, problematic at best.

In submissions on behalf of the offender counsel relied on the assertion that the offender had returned to his native land of Pakistan and remained there for some months in order to combat his addiction to cocaine and alcohol. This submission may or may not be truthful. I do not lose sight of the fact that the offences for which the offender is before the court are offences of planned and systematic dishonesty and that he has prior antecedents in relation to this type of conduct. Further, the customary indicia of abstinence in relation to drug use in the form of test results for urine or other sampling are not before the Court. Nonetheless I am prepared to give qualified acceptance to the possibility that the offender may at present be abstinent. This view is based more on the evidence of his wife with whom he has again taken up residence than his bald assertion that it is a fact.

Significant reliance is placed on the psychological assessment of Mr Watson-Munro. That report identifies some of the social and personal circumstances that are relied upon to show a troubled capacity on the part of the offender to establish a stable way of life in his adopted country. The loss of both parents, difficulties in settling into a new country with a different culture; Mr Watson-Munro describes the condition as an adjustment disorder and failures within his business are suggested as the possible causes for the offender taking up the abuse of alcohol and drugs together with resort to heavy gambling. The latter conduct obviously contributed to his financial problems. It is not suggested that many others who may suffer from some or most of these types of issues commonly resort to criminal offending behaviour as a result. Mr Watson asserts that whatever the sentence imposed on the offender he will require ongoing treatment. Whether the offender pursues this opportunity remains, as it always was, a matter for him. I note his evidence before me he indicated it had been suggested to him.

I also take into account the numerous references tendered on behalf of the offender by many within his circle of acquaintances. I accept that to the authors of these documents the offender presents a very different picture than that understood by the Court and through it, the wider community. I note also that there is a consistent stream of observations by the various authors that give rise to the inference that the offender may not have been completely candid with them regarding his drug issues and previous offending.

All courts of course aim as part of the sentencing process, to rehabilitate an offender. This objective however is not to be pursued to the exclusion of the other principles set out in Section 3A of the Sentencing Act. The sentence in these proceedings will contain specific focus on rehabilitation predicated upon what the court has been told but will do so in necessary circumstances where the objective seriousness of the offender's conduct and the need to protect the community by reinforcing its expectations within the sentence will also be manifest. The Sentence

It is the view of the Court that balancing the aggravating factors set out above against the mitigating factors that despite the admonition contained within Section 5 of the Act the appropriate penalty for his conduct is one of imprisonment. Before turning to the discrete sentences to be imposed however there are matters of principle that need to be identified.

Like many fraud prosecutions the offender is to be sentenced for multiple offending. In such circumstances the court is required to apply the principles of totality. Applying the principles set out in R -v- Pierce (1998) 194 CLR 610 at [45] the ultimate penalty imposed must be appropriate to the totality of the offender's conduct and his personal circumstances.

In Johnson -v- The Queen [2004] 78 ALJR 616 at [18] it was said that:

"the effect of the totality principle is to require a sentencer who has passed a series of sentences each properly calculated in relation to the offence for which it is imposed… to review the aggregate sentence and consider whether it is just and appropriate. It must look at the totality of the criminal behaviour and ask itself what is the appropriate sentence for all the offences." 31. In taking this approach however as the Court said in R -v- MAK [2006] NSWCCA 381 at [18]: "A sentencing court must however take care when applying the totality principle. Public confidence in the administration of justice requires the court to avoid any suggestion that what is in effect being offered is some kind of discount for multiple offending.

32. These words do not suggest that Courts need err on the side of minimising the circumstances in which totality is the governing determinant. As the Court further said in MAK: " an extremely long total sentence may be crushing upon the offender in the sense that it will induce a feeling of hopelessness and destroy any expectation of a useful life after release. This effect both increases the severity of the sentence to be served and also destroys such prospects as there may be for rehabilitation and reform.
33. In these proceedings it is appropriate to impose a term of imprisonment for the offence in July 2007, it being the offence committed whilst on conditional liberty and then to impose sentences for the offences committed in March and April 2008. The gap between the two periods of offending and application of the principles of totality warrant the sentences to be imposed for the latter period of offending to be imposed cumulatively on the 2007 offence but concurrent with each other.

I would place the 2007 offence towards the lower end of the middle range of objective seriousness. The appropriate sentence for that offence, taking into account the mitigating factors and the offender's subjective circumstances and bearing in mind the principles in Doan [supra] is 15 months imprisonment. After applying the discount of 15% the offender is sentenced to imprisonment for a period of 1 year and 23 days.

In relation to the offences in 2008, as indicated I am of the view they too warrant condign punishment and are similarly in a range towards the lower end of the middle range. The sentences for these offences should be made cumulative upon the earlier sentence to properly reflect the totality of the offender's conduct. Accumulation is also warranted because the offences involve a different victim. The principles of proportionality warrant their imposition one in relation to the other by way of concurrent sentences. These offences are not affected by the aggravating circumstance of having been committed whilst the offender was on conditional liberty. The appropriate sentence for sequence 2 is imprisonment for 12 months. The offences contained with sequences 6, 8 and 9 are relatively of similar objective seriousness. The term of imprisonment for those offences should be set at 9 months.

Application of the 15% discount produces a sentence of 7 months and 20 days for each offence making a total aggregate sentence of 17 months and 26 days.

I am mindful in sentencing the offender that he has served a period of pre-sentence custody on remand. The period in question is 101 days. He was incarcerated on remand bail refused on 23rd August 2008 and not released until he entered bail granted by the Supreme Court on 2nd December 2008. The commencement date of the first sentence will correspondingly be backdated to take into account this fact. It was also suggested that the stringent bail conditions represent a form of punishment that ought be applied to mitigate the ultimate penalty. I do not accept that the bail conditions bring the offender within the same purview of an offender who has been confined to a recognized rehabilitation centre.

The salutary lesson of being deprived of his liberty for over 3 months is also a factor to be taken into account in determining the manner by which the respective sentences are to be served. The combined effect of the accumulation of sentences is that the offender will be sentenced to a total term of imprisonment of 17 months and 26 days.

In my view such a period objectively reflects the totality of his conduct. In light of the decision to accumulate I exercise my discretion pursuant to Section 45(1)(b) of the Sentencing Act to decline to set a non-parole period for the 2007 offence. The sentences for the second series of offending are to commence at the expiration of the sentence of 10 months and 6 days imposed for the first offence.

In sentencing the offender I have not lost sight of the need to put in place a means by which his resolve and prospects of success in rehabilitation might be addressed. How an offender is to serve a sentence is no less important than the considerations relevant to determining whether no other sentence is appropriate. The offender is not excluded from access to Home Detention by reason of Section 76 of the Act. It is the view of the Court that this option ought be considered. If suitable and if the court is of the view it is appropriate such a sentence would allow for the involvement of the offender in appropriate rehabilitation programmes whilst at the same time enabling him to begin payment of compensation and to be tested in relation to his resolve to abstain from drugs and alcohol. If the decision of the Court is to order the sentences be served by way of Home Detention the appropriate adjustment to the commencement date will be nominated to give effect to the period of pre-sentence custody.

Given the time of the year and the approaching Court vacation the proceedings are adjourned until 21st January 2010 for assessment as to suitability for home detention. The offender is allowed bail as before.

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