R v Lee [2018] NSWDC 201
Thangavelautham v R [2016] NSWCCA 141
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Source
Original judgment source is linked above.
Catchwords
R v Ahmed [2019] NSWDC 546
R v YeohR v MohammedR v ZhangR v Lee [2018] NSWDC 201
Thangavelautham v R [2016] NSWCCA 141
Texts Cited: Nil
Category: Sentence
Parties: Regina (Crown)
Judgment (3 paragraphs)
[1]
Mr M Pickin (Counsel for the offender)
File Number(s): 2018/27691
[2]
Judgment
Syed Rahman, now 64 years of age and he appears for sentence having pleaded guilty to one count of under s 192J of the Crimes Act 1900, of dealing with identification information with the intention of committing or facilitating the commission of an indictable offence. The offence carries a maximum penalty of ten years with no standard non-parole period.
It is agreed that he pleaded guilty at an early stage in circumstances which would justify a 25% discount on the term of any imprisonment for the utilitarian value of the plea.
The sentence must take account of the purposes of sentencing set out in s 3A of the Crimes (Sentencing Procedure) Act 1999.
Rahman had originally pleaded guilty to a count under s 93T of the Crimes Act 1900, of knowingly participate in a criminal group, but withdrew that plea and was then arraigned on the present indictment after the s 93T offence was withdrawn.
He spent no time in custody. The sentence received will require some consideration of the detail of sentences for other people who were involved in the course of conduct leading to this plea.
The agreed facts in this case show that a police strike force had investigated the systemic manufacture of fraudulent, cloned credit cards by credit card skimming and the use of those cloned cards at ATMs and EFTPOS machines throughout New South Wales. Police identified a criminal group which conducted a highly sophisticated scheme of credit/debit card skimming using taxi drivers and others to conduct large amounts of fraudulent withdrawals from the ATM network. The group include (Islam, the ringleader, I sentenced him to a term of three years and ten months with a non-parole period of two years eight months in July 2019; Alam( who was identified as the runner, a person conducting withdrawals and was sentenced to five months in the Local Court. Syed Rahman was a taxi driver and was also in possession of skimming device and a further offender was a Md Rahman, another taxi driver in possession of a skimming device.
Islam was the principal who managed the deployment of the skimming devices to taxi drivers and instructed them how to use it. He recruited people and instructed them on how to conduct unauthorised withdrawals knowing the cards had been cloned. Surveillance was conducted on Islam and showed him meeting with the offender and with Md Rahman. He was carrying a bag which contained EFTPOS terminals with the skimming devices installed. The offender would take possession of the compromised EFTPOS terminals and his passengers would use that to pay for the taxi service. Each of them was a ghost terminal which would mean that when the passenger paid for the taxi ride no money was actually debited from the card, so there was no means of tracing subsequent fraudulent cash withdrawals. Islam would then collect the terminal from the offender and extract their credit card information that had been skimmed and he would pay the taxi drivers $110 for each number. They had a system of providing an invoice or a receipt which would function in the form of an invoice so that both the offender and Islam had a record of how many details had been skimmed and how much money Islam owed the offender.
Once Islam downloaded the information and transmitted the information onto blank gift cards, thereby cloning the passenger's credit card, those credit cards would then be provided to runners who would use them to withdraw money from the passenger's bank accounts.
The first offence identified was on 4 September 2017 and the last on 27 September 2017. On the first day Islam met the offender who was in his taxi and he gave him a bag with the terminal and the skimming device in it. The conversations recorded between them showed explicit references to machines indicating that there were 43 numbers on the machine and a total of 14 were downloaded. On 7 September there was a lengthy conversation recorded between the two as to operating the terminal or skimming device and Islam told the offender to collect 20 to 25 numbers. There were numerous other conversations between Islam and the offender in relation to the collection of numbers and payment of money.
On 7 September a conversation was recorded between them during which there was a reference to 56 numbers. Islam told the offender that he paid the offender $3,500 and still owed him $2,440 and at $110 a card this amounts to 54 credit card numbers. The offender actually asked Islam for a higher rate to be paid but he was reminded by Islam that the agreement was $110 per number. He said to the offender I have paid you in full during which the amount of $3,400 was mentioned.
On 27 September there was more surveillance of the two and a conversation recorded Islam handing over $1,000 to the offender who again told Islam that he wants more money and he asked for $5,000. During the conversation 50 numbers are mentioned which was the amount of numbers collected by the offender. Islam told the offender not to take any risks. In short, it seems that the offender received $4,400 or $4,500 for his share of the work in this organisation. There is no evidence as to the amount of money skimmed or obtained as a result of his activities.
On 28 February 2018 he attended Liverpool Police Station after receiving a phone call from Detectives about his involvement in this criminal enterprise. He was arrested and declined the opportunity to participate in an interview.
His record prior to this offending involves a fraud count in 1993 dealt with by a s 556A recognisance and four further counts also dealt with under s 556A dismissals. In November 2017 there was an offence of assault with an act of indecency, which occurred after this offending, for which he was given a three-year section 9 bond. Mr Pickin, counsel for the offender, explains that as involving him attempting to kiss a passenger in his taxi.
The facts in relation to Islam and Ahmed( are set out in my sentence remarks of 15 July 2019 (R v Islam; R v Ahmed [2019] NSWDC 546) which, as I have indicated, led to a sentence for Islam of three years and ten months with a non-parole period of two years and eight months, and for Ahmed an aggregate sentence of two years and six months with a non-parole period of one year and seven months.
As set out in the agreed facts here, Islam was identified as the principal or the ringleader. The evidence record shows that he was asserting that he had received between $250,000 and $300,000 from this activity over a period of years. He had a record of previous convictions and was on conditional liberty at the time of the offending.
Mr Ahmed (aka Liton Sheik), ((conspired with Islam to conduct the skimming of cards and although they had discussed making half a million dollars if successful, the only particular mention of any amounts that he received was $6,300. Ahmed was acknowledged to be a junior in the syndicate to Islam. It is unnecessary for me to set out the detailed agreed facts and the records in relation to these two gentlemen.
As to MD Fazle Rabbi, he was sentenced to an aggregate term of 15 months imprisonment with a non-parole period of nine months, 27 offences contrary to s 192E of the Crimes Act 1900 and seven offences of attempting to commit an offence under 192E. Appeals against his sentence in the Magistrates Court were dismissed in this Court. In short, the facts demonstrate that he had obtained a total of $35,960 from 31 victims over 57 separate transactions. He had no prior record.
MD Zuvaier Alam (was sentenced to five months for five counts of fraud, with nine offences taken into account on a Form 1 and a total of 48 attempts. The agreed facts suggest that he had withdrawn about $11,950 using counterfeit credit cards. He also had no prior record.
The offender has not given evidence. A number of documents have been tendered setting out his subjective case. In the absence of it being tested and affirmed the evidence with no other history is rightly treated with some caution in view of cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 144, (but there is a significant degree of consistency between the history and the material including reports from treating general practitioners and psychologists which suggests that the history is a reasonable basis upon which to proceed. The offender does not do himself any favours in some of the reporting episodes, such as with the Community Corrections officer to whom he declined to provide permission to make contact with his extended family members to verify his details, asserting that he was keeping the details of his offending to himself for fear of bringing shame on his family and becoming an outcast in his community. His admissions of guilt focussed not on the victims, but on the impact the offending has had on his own life and that of his family. With those cautions I bear in mind a reference from Mr Azzin the general secretary of a Bilal cultural centre who speaks favourably of him, how he had been aware of the earlier offence of which he was charged, asserting that was out of character, asserting that he will not re-offend and that he is remorseful and repentant. He describes him as a harmless person ready to assist others. Similar sentiments were expressed by Mr Haque.
He has been under the treatment of Michael Zang, a psychologist at the Gambling Treatment and Research Clinic at the School of Psychology at the University of Sydney for many sessions since September 2018. He completed the clinic's treatment program and reports that gambling was no longer a concern for him according to the report of March 2019. Despite the successful completion of the program he continues with follow up appointments. By the time of the preparation of the report last week he had attended 22 sessions, most recently last week, and continues to make excellent progress consistent with his goals and he has further appointments scheduled through to February 2020, and Mr Zang would like to continue contact with the clinic up until August 2020 at least.
Belatedly a letter of apology was provided to the Court from the offender in which he says he was completely ashamed of himself and his criminal actions. He acknowledges there is no explanation for what he didin his background including two failed marriages, a death of a son, a serious assault in 2017 and his gambling addiction. These circumstances are not claimed by him to be an excuse. He recognises that there is no excuse for his conduct and he apologises to the Court and the community and says that if he can cure his gambling addiction he can be a good citizen again and it is because of gambling that he lost sight of everything he loved. He described himself as a broken man who has lost everything and recognises the harm he has done to the community.
His GP Dr Ahmed says he has been a patient of the practice since 2001, suffering from multiple physical and mental illnesses, including chronic orthopaedic pain and chronic right shoulder pain following a severe assault while working as a taxi driver and also stress and anxiety due to post-traumatic stress disorder as a result of an assault at gunpoint while working as a nightshift taxi driver. He takes antidepressants and a painkiller for relief. Dr Ahmed suggests that special attention, by close family members is essential to achieving the best outcomes for him, but there is little evidence of close family support.
He resides in stable accommodation with his wife and two children despite being estranged from his wife since 2003. He is on good terms with her and he remains in the house for the benefit of the children and the family unit.
There is a lengthy history set out in a report of Mr Borenstein which fleshes out a little more detail. After the assault in 2007 he was awarded $77,000 in victim's compensation. He did not work for several years while on receipt of workers compensation payments. He returned to taxi driving in May 2016 on a part-time basis due to his physical disabilities.
He is a native of Bangladesh, one of six children. He completed university and then went to Singapore in 1983 and then on to New Zealand and Australia in 1990. He has a brother and a sister living in Australia. He is a devout Muslim and prays five times a day and attends a mosque regularly. He expressed guilt and remorse to Mr Borenstein and impressed as an open and honest historian. While he satisfies the diagnostic criteria for a gambling disorder and PTSD as I have indicated the offender does not claim that to be causally related to his offending and neither did Mr Pickin put that proposition.
He has enrolled in skills for education and employment English classes and satisfactorily completed some of that course as well as achieving competency as part of the targeted priorities course. The sentence assessment report notes that he was desperate for money and maintained that he was unaware that his actions were illegal, but that is a proposition that I cannot accept given the agreed facts and his admissions in other circumstances. He is assessed as being a low to medium risk of re-offending.
The Crown's helpful written submissions were not the subject of a significant challenge from Mr Pickin, other than as to the ultimate submission that a period of fulltime custody was required. I am reminded of the purposes of providing for a significant term of imprisonment for offences under s 192J as set out in the second reading speech, noting that identity fraud is a growing problem and the trade in identification information is a major enabler of this sort of fraud. I take account of the citations as to the need for general deterrence to be reflected in the appropriate penalties in cases such as R v Yeoh; R v Mohammed; R v Zhang; R v Lee [2018] NSWDC 201 ( and Thangavelautham v R [2016] NSWCCA 141
As to the objective seriousness of the offence it is clear that he dealt with identification information by skimming his passenger's credit cards and supplied that data to Islam in exchange for $110 and receiving, as I have said, about $4,500. He knew that he was facilitating the commission of fraud against his passengers. His offending extended over a period of several weeks and the conversations with Islam indicated a clear awareness of the illegality of the operation.
The Crown's description of him as an ongoing, eager participant in the organisation is accurate and the evidence establishes that he attempted to obtain a larger fee than that originally agreed with Islam. Without him obtaining the credit card details the fraudulent withdrawals could not be affected. His role was integral to the successful functioning of the syndicate. He was ultimately at the front line of the card skimming syndicate, even though he did not occupy an elevated position in the hierarchy. I accept that,,\ as the Crown says, it is above the low end of objective seriousness and towards the middle range of objective seriousness for this type of offence.
As to aggravating factors the Crown asserts that the offence was committed for financial gain. He refers to a discussion by Price J in Lee v R [2019] NSWCCA 15 at [53]-[63]. I am not satisfied that it should be regarded as an aggravating factor in this case. But it is correct that he has a record of previous conviction for dishonesty and also the offence involved multiple victims or a series of criminal acts.
There is no dispute as to the principles of parity to be applied insofar as they are relevant here, and the Crown sets out a number of propositions from Adams J in his judgment in Kemp v R [2012] NSWCCA 281. Ultimately this offender is treated as one of multiple co-offenders who committed offences at the direction of Islam and he was at the other end of the organisation to the positions occupied by Rabbi and Alam. Although at opposite ends of the organisation and committing different acts, his role was comparable or not dissimilar to Rabbi and Alam who were responsible for withdrawing the cash using the cloned cards prepared with the information obtained by this offender.
As Mr Pickin points out, there is no evidence as to what, if anything occurred in terms of the information skimmed by this offender and no evidence of an actual related fraud. Culpability here relates to the carrying out the skimming operation in return for an agreed amount for each skimmed card, and that he did so utilising the skimming device and collection information from consumers with the requisite intention of meeting or facilitating the commission of an offence.
I take account of the subjective matters to which I have referred, and his post-traumatic stress disorder and gambling disorder. As the Crown points out the Courts have consistently said and affirmed in cases such as Johnston v R [2017] NSWCCA 5, where the Chief Justice said, at [36], that offences committed to feed a gambling habit will not generally be a mitigating factor at sentence. I will allow some moderate degree of mitigation as Mr Pickin submits, is a consequence of the deleterious effects of his psychological illnesses. He has ultimately expressed remorse and insight, acknowledged his offending and commenced a significant program of therapeutic intervention. He ceased gambling and has been on bail without further offending for two years. The delay in finalising the matter is not an extraordinary delay and the only real relevance is that it demonstrated his progress towards rehabilitation as noted in cases such as R v Blanco (1999) 106 A Crim R 303.
Mr Pickin provides two seemingly contrary sets of statistics which are, as often occurs, a blunt tool. Statistics over a short period from September 2018 to March 2019 of matters dealt with in the Local Court shows 36% received an ICO and 9% receiving full-time custody over a range of 11 cases. Whereas a total of 13 cases dealt with in the higher courts from February 2010 to September 2018 shows 7% receiving an ICO and 76% receiving a term of fulltime custody.
In considering questions of parity as far as one can, it is important to note that I know nothing about the subjective features of Alam and Rabbi who were sentenced in the Local Court, other than the lack of records to which I have referred.
The Crown submitted that the assertion of the $100,000 gambling debt has been left up in the air and its uncertain status means that there may be an incentive to re-offend. However, in the light of the various expressions of remorse and the overall circumstances which are set out in the reports of his successful treatment for gambling addiction I think the prospects of re-offending are, as assessed by the Community Corrections, very low and his prospects of rehabilitation are favourable.
I think there is ultimately some force in Mr Pickin's submission that this was an apparent short period of offending, and the reasonably powerful subjective case works in his favour, as does the significant difference in the facts relating to Alam and Rabbi. I am ultimately persuaded that it is appropriate to impose a term of imprisonment but that it should be served by way of an Intensive Corrections Order.
The orders I make are:
1. The offender is convicted of the offence.
2. There being no other appropriate penalty, I impose a sentence of imprisonment of 12 months.
3. Pursuant to section 7(1) of the Crimes (Sentencing Procedure) Act 1999, the court directs the sentence to be served by way of an intensive corrections order commencing today.
4. The offender is to report to the OIC at the Liverpool office of CCS by 5pm, Friday 13 December 2019.
5. The conditions to apply during the term of the order are as follows:
STANDARD CONDITIONS
1. You must not commit any offence.
2. The offender is to be placed under the supervision and guidance of the Community Corrective Services for as long as that Service deems necessary or desirable, but not exceeding the term of the order and the offender is to obey all reasonable directions of that Service (including any direction or instructions to undertake examination, assessment, therapy, treatment, counselling or urinalysis) whilst under supervision and guidance.
ADDITIONAL CONDITIONS
1. Undertake psychological treatment and rehabilitation as outlined in the report of Michael Zhang dated 26 November 2019.
2. Failure to comply with the conditions of this order may result in further sanctions may be imposed by the Commissioner of Corrective Services or State Parole Authority. Those sanctions may include a formal warning, imposing more stringent conditions, or it may include revocation of this order.
3. The offender is to attend the Registry for finalisation of the intensive corrections order.
Note - These extempore remarks were revised without access to the court file
[3]
DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.
Decision last updated: 20 April 2020