R v Sulaiman

Category: Sentence

Parties: Qartullah Sulaiman (The offender)
Director of Public Prosecutions (NSW) (The Crown)

Representation: Counsel:
Mr C Parkin (The offender)
Solicitors:
Mr J Ahmadi (The offender)
Ms C Strati (The Crown)

File Number(s): 2023/00356422

Publication restriction: Nil

REMARKS ON SENTENCE

1. The offender was born in Afghanistan in 1989 and came to Australia in 1999. He is to be sentenced in respect of the following two offences:-

Sequence 1 – Dishonestly obtain financial advantage or cause financial disadvantage by deception, an offence pursuant to s192E(1)(b) of the Crimes Act 1900 (NSW) (“the CA”). The maximum penalty prescribed is 10 years imprisonment and there is no standard non-parole period.

Sequence 3 – Knowingly deal with proceeds of crime, an offence pursuant to s193B(2) of the CA. The maximum penalty prescribed for that offence is 15 years imprisonment.

2. The offender has also admitted his guilt and asked for a further offence to be taken into account on a Form 1 attached to sequence 1. That offence is as follows:-

Sequence 2 – Offence that he caused an unauthorised computer function, namely deleting 1,396 records on Telstra ordering and billing systems, knowing that function to be unauthorised and with intent to commit the commission of a serious indictable offence, namely fraud, by him.

3. The offending took place between 1 March 2022 and 22 September 2023. The offender was arrested on 9 November 2023 and has been on bail since then.

The sentence hearing

4. The sentence hearing took place on 2 October 2025. The Crown Sentence Summary became Exhibit A, and it included a Statement of Agreed Facts which may be summarised as follows.

5. Between 1 March 2022 and 30 September 2023 the offender, using his unique Telstra login details and position, committed the offence in Sequence 1 by fraudulently obtaining 1,407 mobile phone devices and accessories at a cost to Telstra of $2,592,409.03. Most of those phones were on-sold on resale platforms such as Gumtree in exchange for cash or electronic transfer.

6. The offending in Sequence 2, the offence on the Form 1 attached to Sequence 1 concerned the offender, during the same period, knowing it was unauthorised, accessing data held in Telstra computers for the sole purpose of obtaining the mobile phone devices and accessories.

7. The proceeds of sale from the various phones were paid into the bank accounts of the offender, his mother Khalida Sulaiman and his brother, Asmatullah Sulaiman. The total amount deposited was $1,314,550.

8. Between 6 February 2013 and 16 September 2023 the offender was employed by Telstra, firstly as a service desk consultant in an IT support role before moving to a role in business verification testing. In that role he was required to test various scenarios to ensure Telstra processes and systems in respect of online ordering of Telstra products were functioning as designed. In that work he had access to the Telstra ordering and billing system and knowledge of how to perform sale orders.

9. In May 2023 a Samsung promotion had been run across Telstra stores. In August 2023 Samsung contacted Telstra to note they had observed repeated applications to obtain a “gift with purchase” voucher under the promotion. Forty such applications were connected to the offender’s residence where he resided with his mother and brother. While the applications had been made in a series of names, some of the applications were made in the name of the offender.

10. During the period of the offending, 1,407 mobile phone devices along with 397 SIM cards and 237 mobile phone accessories were delivered to the offender’s home. They were delivered pursuant to false orders created by the offender utilising his unique Telstra ID and accessing the Telstra order systems. The majority were sold on platforms such as Gumtree. About 81 mobile devices obtained by the offender were connected to the Telstra network, some of which were registered in the offender’s name with his mobile phone number or were registered to people with the same surname as the offender. On Gumtree the devices were sold for between $1,500 and $2,000 each and were advertised for sale by “Cash and pick up only”. On some occasions the offender would be asked to source specific items and on at least two occasions the offender indicated to potential buyers that a particular item was “not available to us”.

11. Between 16 November 2022 and 13 January 2023, the offender made a series of cash deposits into his own Commonwealth Bank of Australia account ending in 1314. There were 18 cash deposits totalling $168,000. On other occasions the offender would have the funds transferred to the same account. There were in fact 7 such transactions totalling $199,550. This is the conduct comprising Sequence 3. The total of cash deposits and electronic transfers was $367,550.

12. After a formal complaint by Telstra to NSW Police on 25 October 2023, the offender’s bank account was frozen for suspected fraudulent activity. Between 26 October 2023 and 1 November 2023, the offender made five telephone calls to the bank to seek that the account be re-opened.

13. As outlined above, Sequence 2 involved unauthorised modification of data whereby the offender used his unique user ID to access the Telstra sales platform to place orders and then accessed the systems to manually delete 1,396 records of orders which had been stored on the sales platform. The offender used his unique Telstra ID to place a series of credits that equalled the value of the charges accrued by the orders he had placed. In doing so, he sought to conceal the charges which had been placed against accounts, by avoiding detection via Credit Management. The serious indictable offence that he intended to commit was the fraud the subject of Sequence 1. This is the conduct comprising Sequence 2 on the Form 1.

14. Prior to his arrest the offender was interviewed by members of Telstra, and he made relevant admissions. He was arrested on 9 November 2023 and declined to be interviewed by investigating police. A search warrant was executed at his residence during which a number of phones and accessories were located.

15. Exhibit A included the NSW Police Force history of convictions which revealed the offender had no previous convictions. It also included a Sentencing Assessing Report (“SAR”) under the hand of Mr S Too dated 25 August 2025. Under the heading “Attitudes”, the author stated that the offender “justified his actions by explaining that his intentions were to support his family’s financial stability and cover medical expenses, rather than for personal gain”. The offender had acknowledged that his behaviour was not right and that he needed to stop, however he continued to offend.

16. Under the heading “Financial”, the author noted that the offender claimed financial stability at the time of his offences despite reporting to have suffered a significant financial loss through an online investment. Other evidence demonstrated that investment was in cryptocurrency during the COVID pandemic.

17. The author opined that the offender showed limited insight into the impact of his offending, “identifying that the victim (Telstra) may feel embarrassed”, but demonstrated greater awareness of the impact on himself and his family.

18. The offender expressed a willingness to undertake intervention to address his offending behaviour and was assessed as a medium/low risk of reoffending.

19. Exhibit A also included a statement of an authorised Telstra employee noting that up until 28 September 2022, the offender’s usual fortnightly salary was $3,203.48 and after that date was increased to $3,327.77. His total salary for the period 17 February 2022 to 27 September 2023, including incentive payments, leave and other entitlements was $176,405.89.

20. Exhibit A also included the sentencing outcomes for the offender’s mother and brother in the Local Court. Both were sentenced to terms of imprisonment to be served by way of Intensive Correction Orders in the community.

21. Exhibit B was a bundle of 54 pages of Commonwealth Bank records for accounts held by the offender. A “Goal Saver” account showed a credit balance as of 22 September 2023 of $424,802.55.

The offender’s evidence

22. The offender tendered a bundle of documents which became Exhibit 1, comprising Exhibits 1.1 to 1.14. Exhibit 1 was a report from Mr T Watson-Munro, consultant psychologist dated 4 September 2025. Mr Watson-Munro took a social history in which the offender was exposed to considerable violence and trauma up to the age of 10 years when he was living first in Afghanistan, and subsequently in Pakistan. He was subject to violent abuse by his father. He arrived in Australia in 1999 and became an Australian Citizen in 2004. Following his arrival he struggled at school and had adjustment issues referrable to his divergent language and culture. He struggled in high school and failed his HSC but eventually obtained it after attending TAFE college. In about 2009 he commenced a traineeship with Telstra and in 2013 he was offered a permanent position as a customer service consultant which he continued to do until 2017. He had lost his employment with Telstra as a result of the index offending in November 2023 and had been unable to secure work since then.

23. The author took a history that the offender married in June 2013. They have a 9 year old daughter who suffers from a genetic kidney condition which is life threatening as it can lead to an excessive loss of salt and very high levels of potassium in the blood which can cause the heart to cease beating. Her treatment includes “huge amounts of salt and bi-carbonate supplements” in addition to twice daily intensive physiotherapy to prevent chronic lung disease. The author noted that the offender is responsible for that child’s care in the context of being the only driver in the family. This involved him taking her to hospital appointments. They have three other children including a one month old baby.

24. Relevantly, his wife underwent a termination of pregnancy in 2022 as a result of genetic testing which revealed the same genetic condition as their eldest daughter. In 2021 he had taken leave without pay for about 9 months which impacted upon their family’s financial position. The author noted that he had also been diagnosed with pericarditis in 2015 and suffers from sleep apnoea.

25. Psychometric testing revealed symptoms consistent with a Depressive Disorder (severe and reoccurring). He had been treated with Zoloft for his depression, and a GP Mental Health Treatment Plan dated 13 June 2025 recommended Cognitive Behaviour Therapy and counselling to assist the offender to have a better understanding of his symptoms. He had commenced treatment with Dr Yu-Tang Shen, consultant psychiatrist. In reviewing a report of Dr Shen dated 7 November 2024, the author noted that Dr Shen had opined that the offender suffered Bipolar Disorder Type 1, with persistent major depressive episode and previous episodes of mania, a Generalised Anxiety Disorder, Social Anxiety Disorder, Panic Disorder, Agoraphobia and other specific Trauma Stressor Related Disorder referable to a workplace issue.

26. Mr Watson-Munro also noted a report from Ms Sahagian, psychologist dated 30 December 2024 in which the psychologist had opined that the offender’s criminality was not motivated by personal gain but rather by desperation to support his family. He agreed with the psychologist’s opinion that the offender’s mental health conditions significantly influenced his judgment and behaviour during the period of offending conduct.

27. Under the heading “Opinion”, Mr Watson-Munro stated:-

“Mr Sulaiman was further affected by the COVID-19 pandemic, in the context of this having a major impact upon his income, leading to escalating financial difficulties. It was essentially against a backdrop of cumulative stress, poor judgment and financial pressures that his judgment faltered, leading to his involvement in the offences with which he has been charged.”

28. Mr Watson-Munro assessed the offender for risk of recidivism as being from moderate to low and opined that his mental condition materially contributed to his offending. This was on the basis of his well-documented psychiatric history and the impact upon his judgment referable to consequential thinking and impulse control. He went on to opine that the offender’s conditions are likely to render his experience of custody more onerous.

29. Exhibit 1.3 was a letter of apology from the offender to the Court expressing his profound remorse for having “caused so much hurt and embarrassment to both Telstra and my family”. The offender accepted full responsibility for abusing the trust that had been placed in him by Telstra and stated that he was deeply ashamed for the choices he made.

30. The offender also stated that he had brought “unimaginable pain, hardship and embarrassment for my own family”.

31. The offender then rehearsed his life story. When he was just an infant his family was forced to flee to Pakistan as refugees to escape the war. There they led a life of extreme poverty and profound discrimination.

32. When he was about 5 years old, his sister and the offender were kidnapped were taken to Afghanistan to live with his father’s side of the family. He described this as a “terrifying time”. His mother tracked him down and rescued him and his sister. In August 1999, he arrived in Australia with his mother and sister. The offender recounted his educational history and the steps that he had taken since 2010 to build a career. He described his work history and advancement in his employment with Telstra between 2013 and 2019.

33. The offender stated that in 2020 during COVID-19, his mother’s chronic health problems had worsened requiring multiple hospitalisations. In 2021 she was admitted to ICU. The offender stated that to care for her he exhausted all of his annual and sick leave and was eventually on leave without pay to attend to her at the hospital and her numerous appointments. He then stated:-

“It was during this period of extreme financial pressure and emotional distress that a colleague told me about cryptocurrency, and the significant profits people were making. Desperate for a way to generate income to support my family, I made an extremely foolish decision. I invested all of my savings, only to lose most of it shortly after when the crypto market crashed.”

34. The offender stated that it was in this context of overwhelming stress, grieving the loss of their child and caring for his dying mother and facing severe financial hardship that he committed the offences for which he is now extremely remorseful.

35. He described the guilt and shame he has suffered since his arrest as being “unbearable”.

36. The offender stated that his actions were entirely out of character, “born not from greed, but from a desperate attempt to cope with a series of devastation personal crises”. That included the death of his mother on 7 September 2025.

37. Exhibits 1.4 to 1.10 comprised character references from Almaas Rahemi, Erkan Bereket, Gulsum Sulaiman, Hamza Azam, Israa Awad, Emin Bedirhan and Othman Alberda. Each of the authors attest to the hardship endured by the offender during his childhood, a man who is a devoted husband and loving father and someone who has made a serious mistake for which he deeply regrets and is remorseful. He has been described as a humble and compassionate person who has helped many others during his life. Dr Azam is a respiratory physician at Westmead Hospital who has known the offender since high school and observed him closely over two decades. He has observed the offender both as a friend and doctor involved in his mother’s care and stated, “It is not surprising that he has a chronic cardiac condition with a stressful life he has lived”. He opined that whilst the offender had done “a terrible thing”, he warranted a second chance in life.

38. Exhibit 1.11 comprised medical material relating to the offender.

39. Exhibit 1.12 was an affidavit of Raed Rahal affirmed on 23 September 2025 annexing a letter from the offender’s solicitors to the solicitors for Telstra regarding Supreme Court proceedings brought by Telstra advising that he would consent to judgment in favour of the plaintiff and repay the total amount held in all of his bank accounts.

40. Exhibit 1.13 comprised medical material relating to his daughter, M which is extensive. It includes a letter from Dr A Durkan dated 12 February 2024. Dr Durkan is the staff specialist in paediatric nephrology at the Children’s Hospital Westmead, who confirms the life threatening diagnosis of M’s genetic condition. She confirmed that treatment includes huge amounts of salt and bi-carbonate supplements in her diet and twice daily chest physiotherapy to prevent chronic lung disease. In the past 12 months, M had attended eleven outpatient clinics (kidney, respiratory and dermatology) and had been admitted for more than 24 hours on two occasions because of high potassium levels. Dr Durkan opined that if the offender was removed from the family there would be a large onus of responsibility placed on his wife which could comprise M’s care.

41. Exhibit 1.14 comprised a number of job applications for which the offender had been unsuccessful.

42. Exhibit 2 comprised further medical material regarding the offender’s daughter, M.

43. Exhibit 3 is an email from Telstra’s solicitor dated 1 November 2024 forwarding a draft deed of settlement which was executed on 12 November 2024 to resolve the Supreme Court proceedings.

44. The offender also relied on an affidavit sworn by his wife, Tanzillah on 29 September 2025 in which she set out the impediments to her caring for their daughter M in her husband’s absence, her dependence on her husband for communication, transportation and deposing to the deep and genuine remorse the offender has expressed for his offending conduct.

45. Mrs Sulaiman was required for cross-examination and gave evidence through a Pashto interpreter. She arrived in Australia in 2014 aged 19 years and has been married to the offender for 12 years. She received no schooling here and has not worked. She gave evidence that she has her own bank account which she uses for her own personal needs, those of her children, household expenses including groceries and to pay bills.

46. Mrs Sulaiman agreed that her husband had worked at an office during his employment with Telstra and that she had care for her children by herself at those times, however she gave evidence that the offender takes full responsibility for their sick daughter, M attending medical appointments and would take time off work if needed. She was able to give M her medication which she described as “soda and salt”.

47. Mrs Sulaiman gave evidence that her mother in law had passed away recently, and she had no assistance from other relatives, including her brother-in-law with whom they had no contact for over 2 years. It was put to Mrs Sulaiman that the offender provided more emotional support than medical support for M, however she stated that he did everything for her and that M is really attached to him. She further clarified that when she purchases groceries the offender drives her to get those groceries.

48. In re-examination the offender clarified that the bills paid from her account including electricity, water and gas came from money given to her by her husband who facilitated those payments as she is not sure what the bills are when they arrive. Her children were now aged 9 years, 6 years, 2 years and 1 month. She did not recall when her husband last worked in an office or whether he did so during the COVID-19 pandemic.

The Crown submissions

49. The Crown relied on a written outline of submissions setting out non-controversial sentencing principles. The Crown submitted the offending in Sequence 1 was a very serious example of offending and submitted the following circumstances should be taken into account in assessing the objective seriousness of the offence:-

(a) The offending took place over a prolonged period, being between 1 March 2022 and 13 September 2023 (1 year, 6 months and 12 days). (b) The offender defrauded his employer, Telstra, of 1,407 mobile phone devices and accessories costing Telstra, $2,592,409.03. The devices had a recommended retail sale price value of $3,082,603.00. (c) The offending took place in the context of the offender's employment as a business verification tester, utilising his unique knowledge of system interfaces and utilising his access to the Telstra ordering and billing systems. (d) The offending did not desist because of the offender but rather was only uncovered when Samsung contacted Telstra about an anomaly in the orders they had received. (e) The offender, upon receipt of these devices, utilised platforms like Gumtree to sell the items, often for "cash only". The Crown submission is this was done in order to reduce the ability to trace the origins of those funds. (f) The offender used his unique User ID to access Telstra Sales platform Phoenix and delete 1396 records (Form 1 Offence) to conceal the charges which had been placed against the accounts. (g) The offender used his mother and brother to disperse the proceeds of his fraud into their bank accounts and even went with his mother to attempt to have her account re-opened following the freezing of her account. (h) The offender sought to have his Commonwealth Bank of Australia account reopened after it was frozen for suspected fraudulent activity, indicating ongoing attempts to access his fraudulently obtained funds.

50. With respect to Sequence 3, the Crown submitted this involved different criminality “for which no proper sentencing range can be discerned by reference to particular examples”. The amount of money involved and the offender’s state of mind were the principal differentiating factors in determining the seriousness of this offence. $367,550 was deposited into the offender’s CBA bank account and he recruited his mother and brother to deposit a total of $1,314,550 into their bank accounts. The Crown submitted this offending fell in the mid-range for an offence pursuant to s193B(2) of the CA.

51. The Crown submitted that the Form 1 offence was referable to the offender’s participation in the offence in Sequence 1, demonstrated the sophisticated nature of the enterprise, and highlighted the lengths the offender went to in order to hide his offending.

52. The Crown relied on the following aggravating factors pursuant to s21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) (“the CSPA”):-

(i) ss(2)(k) – Position of trust (ii) ss(2)(m) – The offence involved a series of criminal acts (iii) ss(2)(n) and (o) – The offending involved planning and financial gain

53. The Crown identified the following mitigating factors pursuant to s21A(3) of the CSPA:-

(i) ss(3)(k) – Plea of guilty for which he is entitled to a discount of 25% on sentence (ii) ss(3)(f) – No record of previous convictions

54. The Crown submitted the offender had demonstrated no insight into the impact of his offending on the wider community or the business of Telstra. The offender’s justification of his offending being to “support his family’s financial stability” and “cover medical expenses” did not demonstrate remorse.

55. The Crown challenged the report in the SAR that the offender was motivated to maintain financial stability by virtue of his fortnight salary which for the period of offending between February 2022 and September 2023, amounted to $176,405.88, although that amount included performance based incentive payments and payout of his leave and other entitlements. The Crown submitted that his motivation for committing the offences was for personal financial gain, i.e. it was an offence motivated by greed.

56. The Crown submitted the offender had been assessed as a medium-low risk of reoffending, however the Court would be guarded in assessing his prospects of rehabilitation. Despite an expressed willingness to undertake intervention there was no evidence that he had done so.

57. The Crown noted the sentencing of the offender’s mother and brother in the Local Court and submitted the offender is the principal offender in the hierarchy and played an invaluable role in the commission of the offences and thus he was more culpable than the co-offenders.

58. The Crown submitted that the threshold in s5 of the CSPA had been crossed and that a sentence of full-time imprisonment was the only appropriate sentence.

59. In her oral submissions the Crown maintained its position that a full-time custodial sentence was the only appropriate sentence for this offender who was motivated by greed. The offender’s stated motivation, i.e. the financial need of his family was at odds with his bank records and internally inconsistent with the opinion of Mr Watson-Munro concerning his depression and PTSD.

60. The Crown rehearsed her submissions regarding the offender’s financial position during the offending period from February 2022 to September 2023.

61. By reference to the offender’s banking records, the Crown demonstrated that there were few medical related expenses and no withdrawals of the substantial monies deposited. The Crown submitted that this demonstrated a motivation of greed and a hoarding of the proceeds of the crime. The offender’s explanation that he had lost all of his money in a crypto-currency investment, which occurred in 2021, was not true.

62. The Crown submitted that with respect to issues of impulse control, the bank records demonstrated the offender had an issue with gambling as demonstrated on almost every page of the bank statements. The Crown submitted that the Court would question the accuracy of the offender’s self-reporting and therefore his prospects of rehabilitation and submitted that general deterrence was very important in the sentencing synthesis.

63. The Crown conceded that the offender’s mental health issues may diminish the moral culpability for his offending in accordance with the principle in DPP (Cth) v De La Rosa (2010) 79 NSWLR 1. The Crown submitted that the Court would not accept Mr Watson-Munro’s opinion that the offender’s mental health materially contributed to his offending because of the nature of the offending and his hoarding of the proceeds. This offending took place over a long period and was sophisticated, demonstrating an ongoing and calculated decision to engage in this criminal behaviour. A total of 1,400 devices had been ordered, delivered, images taken of them and then posted on Gumtree for cash sales. Further, the offender had actively sourced devices for some purchases and the Court should therefore be extremely guarded about accepting any mental health contribution to such offending over a long period of time.

64. The Crown accepted the offender had suffered hardship in his early life in Afghanistan, however he had arrived in Australia in 1999, had gained employment with Telstra in 2013, had married and had children. The Crown submitted that the fact that he continued to offend meant that he knew exactly what he was doing and continued with his offending for his own greed.

65. The Crown submitted that any hardship to his family would not constitute exceptional hardship referring to long established authority including R v Edwards (1996) 90 A Crim R 510 and R v Shortland [2018] NSWCCA 34. The Crown acknowledged that in the event that such hardship did not amount to exceptional hardship then it could still be taken into account on sentence. Given the testimonials relied on by the offender, the Crown submitted it was clear that he had some support from members of the community.

66. The Crown acknowledged that a finding of special circumstances was open to the Court but that this remained a very serious example of fraudulent offending.

The offender’s submissions

67. Counsel for the offender also relied on a thorough and detailed written outline of submissions. It was noted that the offender had made extensive admissions in his recorded interview and had taken investigators to his house to collect property obtained in consequence of the fraud. In the Supreme Court proceedings brought by Telstra against him, he had apologised through his lawyers and consented to judgment against him and had repaid such of the monies available to him to Telstra.

68. Counsel noted that the offender had lost his job as a consequence of his actions and had not succeeded in finding new employment. His family now survive off government support payments and his eldest child, M has a rare and life-threatening kidney condition and requires near-constant monitoring. Since his arrest, the offender has in practical terms, been the primary caregiver for her.

69. Counsel noted the offender’s early plea of guilty entitled him to a 25% discount on sentence. The two index offences and the matter on the Form 1, it was submitted all form part of the same criminal transaction. Sequence 1 was the substantive charge, and the Form 1 offence concerned the mechanism by which the fraud was achieved in Sequence 1 and thus a substantial degree of “totality” is warranted.

70. Counsel conceded that the s5 threshold was crossed but submitted that a penalty of greater than 3 years imprisonment was not warranted and that any term of imprisonment should be served by way of an Intensive Correction Order in the community.

71. Counsel submitted that the following matters should be taken into account in assessing the objective seriousness of the fraud:-

72. The amount of money and whether the loss is irretrievable

73. The length of time over which the offences are committed

74. The motive for the crime

75. The degree of planning and sophistication

76. The extent of any accompanying breach of trust

77. Counsel submitted that the financial disadvantage to Telstra of approximately $2.5 million reflected the cost of the devices obtained through the scheme, however that did not reflect what the offender received. The loss was not completely irretrievable, the offender and his relatives having repaid a substantial sum.

78. The offender submitted that he engaged in the offending initially because

“(a) He and his family were suffering financial hardship arising out of the COVID-19 pandemic; and

(b) He made an investment in cryptocurrency that caused him to lose most of his savings”

74. Counsel submitted that it was therefore a case of need rather than greed and there was no evidence that the offender had spent the money on unnecessary luxury items or an extravagant lifestyle.

75. Whilst the offending involved a degree of planning, counsel submitted it was not sophisticated in the sense that it was relatively easily detectable. It was accepted that as an employee of Telstra the offender had abused his employer’s trust in manipulating its systems using the authority and responsibility given to him as part of his job.

76. Counsel submitted that the objective seriousness of the offending fell towards the bottom of the mid-range.

77. It was submitted that aggravating factors such as financial gain (s21A(2)(o)) and the degree of planning (2)(n) are all matters relevant to the assessment of the objective seriousness of the offending and care should be taken not to double count.

78. Counsel submitted that the following mitigating factors applied:-

79. s21A(3)(e) The offender had no previous convictions

80. ss(3)(f) The offender was previously a person of good character

81. ss(3)(g) and (3)(h) The offender is unlikely to re-offend and had good prospects of rehabilitation

82. Counsel referred to Mr Watson-Munro’s opinion that the offender’s risk of reoffending was trending from moderate to low based on his active involvement in therapy, his close involvement with his family’s domestic life, the lack of any history of substance abuse and his anticipated ability to find employment upon resolution of these criminal proceedings.

83. Counsel referred to the offender’s remorse for his offending as demonstrated by his early plea of guilty, his immediate acceptance of wrongdoing in the Supreme Court proceedings brought by Telstra and the many reports of remorse given by his referees.

84. Counsel rehearsed the offender’s background of deprivation, having been born during the Soviet invasion of Afghanistan in 1989. It was submitted that this “goes somewhat to both mitigating his moral culpability for the offending” and “also moderates the need for general deterrence to a degree”.

85. Having regard to the diagnosis of Depressive Disorder (severe and reoccurring) made by Mr Watson-Munro, counsel submitted that the principles in De La Rosa should be applied here, relying on Moiler v R [2021] NSWCCA 73, where the Court distinguished between material contribution to the offending and direct causation of it. Counsel referred to Mr Watson-Munro’s opinion based on not only the offender’s well-document psychiatric history but also “the impact upon his judgment referable to consequential thinking and impulse control”.

86. Relying on R v Henry (1999) 46 NSWLR 346, counsel submitted that the offender’s mental health condition and its contributing role to the offending rendered him an inappropriate vehicle for general deterrence. Further his experience in custody would no doubt be made worse by the knowledge of hardship that would be suffered by his family in his absence. That hardship is a significant factor in sentencing here given that the offender’s wife does not speak English, does not work and cannot drive and his eldest daughter has a rare life-threatening condition as outlined above. His daughter’s treating nephrologist had outlined clearly the seriousness of M’s diagnosis and prognosis and had stated, “advocating purely for M, it is in her best interest for the offender to remain with the family”. It was submitted that this was a case that passed the high bar of exceptional circumstances and that a substantial component of leniency ought to be afforded to the offender as a result of it. If the Court did not find exceptional circumstances, this hardship could still be taken into account, relying on Matthews v R [2018] NSWCCA 186 at [33].

87. Counsel appropriately made submissions regarding sentencing principles of totality, the purposes of sentencing, a finding of special circumstances and, in the event that a sentence of less than 3 years imprisonment was imposed, the availability of an Intensive Correction Order (ICO).

88. In his oral submissions, counsel for the offender rehearsed his submissions regarding the objective seriousness of the offending, the total restitution made by all three offenders here was $1,472,891.92. With respect to the proceeds of crime offence in Sequence 3, the effective loss was between $70,000 and $80,000.

89. The reparations made in these circumstances was relevant to the question of remorse. Counsel submitted that whether any loss is irretrievable is a matter relevant to the assessment of objective seriousness, and here most of the loss was not irretrievable. Further, some of the items had been recovered.

90. Counsel submitted that there was a spectrum of motivation between greed and need and that the Crown had characterised the offender’s motivation as greed unnecessarily. Here there had been no extravagant lifestyle or spending and whilst the evidence demonstrated that his motivation was not pure need, nor was it pure greed and therefore it was closer to the “need end of the spectrum”.

91. Counsel submitted that desperation to support a family may come in various forms and given the background of this offender, the 20 years spent in Australia were not relevant to his offending. Rather, his PTSD had affected his executive decision making and given rise to what was characterised as opportunistic offending. Counsel submitted that the offender’s mental health had made a material contribution to his offending and whilst the Crown focus had been on his lack of impulse control, it had ignored the importance of the impact of his mental health on consequential thinking as started by Mr Watson-Munro. Further, as identified by his treating psychiatrist there was a possibility of a diagnosis of bipolar in which his problems would have been amplified.

92. A further significant factor was that the offending commenced a few months after the offender and his wife’s decision to terminate her pregnancy having been given advice that the unborn child was at the same risk of the congenital kidney condition affecting M. At that time, the bank account demonstrated a small credit balance which was important in the context of the offender’s mental health and its material contribution to his offending.

93. Counsel clarified that the sum of $176,000 was paid over an 18 month period and included payment for things such as leave entitlements.

94. The offender also suffered pericarditis and had been diagnosed with sleep apnoea which would make any term of imprisonment more onerous.

95. Counsel focused on the hardship that would be caused to the offender’s family in the event of his incarceration given M’s serious and life threatening condition for which she had regular hospital admissions and for which the offender was her primary carer. There was no evidence that anyone else could provide this assistance and he and his wife had no family support.

96. Counsel responded to a number of the Crown’s written submissions. In respect of the Form 1 offence, counsel submitted that any sentence would be concurrent as this was part of the offender’s modus operandi and therefore there should be no accumulation on sentence in respect of this offence.

97. In respect of the Crown’s assessment of objective seriousness, counsel submitted that the use of platforms like Gumtree to sell the items relied on by the Crown so as to reduce the ability to trace the origins of the funds was not a finding that could be made beyond reasonable doubt. It was submitted there was no clear modus operandi of trying to disguise the source of the funds at all nor was a finding that the offender had recruited his mother and brother, able to be made beyond reasonable doubt.

98. With respect to the aggravating factors relied on by the Crown, counsel submitted it was a question of how these factors aggravated the offending and whether they were subsumed in the assessment of the objective seriousness they should not be double counted.

99. Counsel submitted that the offender’s apology letter and character references demonstrated substantial remorse together with his early plea of guilty and the payment of a substantial part of the funds. The lack of insight referred to in the SAR must be counted against the offender’s letter of apology which demonstrated he had a cogent understanding of his offending conduct.

100. Counsel rehearsed his submissions regarding the offender’s good character, the fact that the offender was now receiving psychological intervention and that principles of parity had little role to play given the lack of information concerning the sentencing of the co-offenders and accepting that this offender was the principal offender.

Determination

98. Section 3A of the CSPA sets out the purposes of sentencing as follows:

“3A The purposes for which a Court may impose a sentence on an offender are as follows:

(a) To ensure that the offender is adequately punished for the offence,

(b) To prevent crime by deterring the offender and other persons from committing similar offences,

(c) To protect the community from the offender,

(d) To promote the rehabilitation of the offender,

(e) To make the offender accountable for his or her actions,

(f) To denounce the conduct of the offender,

(g) To recognise the harm done to the victim of the crime and the community.”

99. In assessing the objective seriousness of the offence in Sequence 1, I take into account that the offending took place over a period of some 18 months. During that time the offender defrauded his employer of 1,407 mobile devices and accessories at a cost to Telstra of almost $2.6 million. The offending was sophisticated in that the offender who was employed as a business verification tester was able to utilise his unique knowledge of the Telstra ordering and billing systems to commit the fraud in each transaction. The offending only ceased after Telstra had been contacted by Samsung concerning an anomaly in the orders they had received. Whilst a substantial part of the proceeds were recovered by Telstra, part of the loss was irretrievable. This is a matter that may increase the objective seriousness of a fraud offence – see O’Dwyer v R [2025] NSWCCA 95 at [56]. I find that the offending fell within the mid-range for an offence pursuant to s192E(1)(b) of the CA.

100. Having regard to the offender’s salary during the period of offending, I do not accept the offender’s submission that his family were suffering financial hardship arising out of the COVID-19 pandemic. I do accept that the offender lost money he invested in cryptocurrency before the offending, and that he was on extended leave from work during the COVID-19 pandemic. An unusual aspect of his offending was that there was no evidence whatsoever of expending the proceeds on an extravagant lifestyle, but rather the proceeds were hoarded both by the offender and in the accounts of his mother and brother. Whilst it is important to avoid putting labels on an offender’s motivation for their criminal conduct, I find that the offending was motivated more by greed than by the offender’s need to care for his family. It was highly morally culpable offending.

101. The offending in Sequence 3 of dealing with proceeds of crime pursuant to s193B(2) of the CA concerned the sum of $367,550 deposited into the offender’s CBA account which was recovered. The loss to Telstra of a sum between $70,000 and $80,000 reflected the true loss, and I find the objective seriousness for this offending fell in the upper part of the low range for an offence pursuant to s193B(2) CA.

102. The offence in Sequence 2, on the Form 1 attached to Sequence 1, involved the offender using his unique User ID to access the Telstra sales platform to delete records in order to conceal details of the transactions that formed the offending in Sequence 1. Given the planning involved in that offence it fell in the middle of the low range for such an offence.

103. I take into account the following aggravating factors pursuant to s21A(2) of the CSPA:-

(i) ss(2)(k) – The offending involved a breach of the offender’s position of trust in his employment by Telstra (ii) ss(2)(m) – The offence involved a series of criminal acts (iii) ss(2)(n) – The offending involved planning (iv) ss(2)(o) – The offending was carried out for financial gain

104. As the sophisticated planning and financial gain are taken into account in the assessment of objective seriousness of the offending here, I do not double count them so as to aggravate the seriousness of the offending.

105. I take into account the following mitigating factors pursuant to s21A(3) of the CSPA:-

(i) ss(3)(e) – The offender had no previous convictions (ii) ss(3)(f) – The offender was previously a person of good character (iii) ss(3)(k) – The offender’s plea of guilty for which he is entitled to a discount of 25% on sentence.

106. I have taken into account the maximum penalty of 10 years imprisonment for the offence in Sequence 1 pursuant to s192E(1)(b) CA, and the maximum penalty of 15 years imprisonment in respect of Sequence 3 the offence pursuant to s193B(2) CA. The maximum penalties reflect the seriousness with which such criminal conduct is viewed by Parliament and are guideposts in the sentencing process.

107. Whilst the offending in Sequence 2 on a Form 1 attached to Sequence 1 would generally warrant some accumulation on sentence, it did form part of the same criminal conduct in Sequence 1 by providing the mechanism by which the fraud was achieved in Sequence 1 by concealing his offending conduct. This would warrant a significant concurrency in sentence with the offending in Sequence 1.

108. The Court of Criminal Appeal decision in Badaric v R [2025] NSWCCA 117 informs the correct approach to sentencing for related fraud and proceeds of crime offences. Sweeney J held at [76] that the authorities establish that “where a person is to be sentenced for overlapping offending of dealing with 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”. Price AJA disagreed with her Honour on the basis that the authorities relied on were distinguishable, and in Badaric his Honour regarded the appellant’s proceeds of crime charge as reflecting significant additional criminality, the offender having been engaged in a series of international fund transfers with the proceeds of crime. Given that the offender here merely hoarded the money in both his own bank account and that of his mother and brother there is no additional criminality and therefore the sentence for Sequence 3 should be concurrent with that for Sequence 1.

109. General deterrence is important in sentencing for fraud offences. A clear message must be sent to like-minded members of the community that Parliament has prescribed lengthy terms of imprisonment for such crimes, and that the courts will impose condign punishment in appropriate cases. Specific deterrence also has a role to play in that the offender must understand the seriousness of his criminal conduct and the serious consequences that would flow from him reoffending.

110. There are significant subjective factors to take into account on sentence here. First, I am satisfied that the offender came from a background in which he suffered deprivation as a child, first as a result of the war in Afghanistan and subsequently following his family’s move to Pakistan, and his subsequent kidnapping and being taken back to Afghanistan before he was rescued by his mother and brought to Australia. Such deprivation does not have to be profound (see Hoskins v R [2021] NSWCCA 169, per Brereton JA) however the High Court of Australia held in Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37 as follows:-

1. The circumstances that an offender has been raised in a community surrounded by alcohol abuse and violence may mitigate the sentence because his/her moral culpability is likely to be less than the culpability of an offender whose formative years have not been marred in that way [40].

2. The effects of profound deprivation do not diminish over time and repeated offending and should be given full weight in determining the sentence in every case [42-44].

3. A background of that kind may leave a mark on a person throughout life and compromise a person’s capacity to mature and learn from experience [43].

The application of these principles, and their impact in diminishing the offender’s moral culpability for the offending and how that further impacts the purposes of sentencing set out in s3A of the CSPA was recently explained by Weinstein J (with whom Wright and Sweeney JJ agreed) in YZ v R [2025] NSWCCA 165 at [59] to [68]. The reduction in this offender’s moral culpability must therefore be given “full weight” in the sentencing synthesis (per Bugmy at [44]).

111. Secondly, I accept the opinions of Mr Watson-Munro, that the offender was suffering from symptoms consistent with a Depressive Disorder and various mental health issues which impacted upon his judgment referable to consequential thinking and impulse control which materially contributed to his offending conduct. In DPP (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194, McClellan CJ at CL set out at [177] the following principles to be applied when sentencing an offender suffering from a mental illness, intellectual handicap or other mental health problems as follows:-

112. "Where the state of a person's mental health contributes to the commission of the offence in a material way, the offender's moral culpability may be reduced. Consequently the need to denounce the crime may be reduced with a reduction in the sentence: R v Henry [1999] NSWCCA 111; 46 NSWLR 346 at [254]; Miller v R [1999] WASCA 66 at [23]; R v Jiminez [1999] WASCA 7 at [23], [25]; Tsiaras at 400; Lauritsen at [51]; Israil at [23]; R v Pearson [2004] NSWCCA 129 at [43]; Henry [2007] NSWCCA 90 at [28].

113. It may also have the consequence that an offender is an inappropriate vehicle for general deterrence resulting in a reduction in the sentence which would otherwise have been imposed: Engert at 71; R v Wright (1997) 93 A Crim R 48 at 50-51; Israil at [22]; Pearson at [42]; Henry at [28].

114. It may mean that a custodial sentence may weigh more heavily on the person. Because the sentence will be more onerous for that person the length of the prison term or the conditions under which it is served may be reduced: Tsiaris at 400; Jiminez at [25]; Israil at [26]; Henry at [28].

115. It may reduce or eliminate the significance of specific deterrence: Courtney at [14]; Tsiaras at 400; Israil at [25]; JW at [192].

116. Conversely, it may be that because of a person's mental illness, they present more of a danger to the community. In those circumstances, considerations of specific deterrence may result in an increased sentence: Israil at [24]; Henry at [28]. Where a person has been diagnosed with an Antisocial Personality Disorder there may be a particular need to give consideration to the protection of the public: R v Lawrence (2005) NSWCCA 91 per Spigelman CJ at [23] - [24]."

117. Thirdly, and significantly, regarding the issue of hardship to the offender’s family in the event of a custodial sentence, I accept the evidence of the offender’s wife that the offender is solely responsible for most domestic transactions, given her lack of English, and that he is the primary carer for their daughter, M who suffers a life threatening genetic kidney condition. In R v Edwards (1996) 90 A Crim R 510, Gleeson CJ said at 515:-

"There is nothing unusual about a situation in which the sentencing of an offender to a term of imprisonment would impose hardship upon some other person. Indeed, as senior counsel for the respondent acknowledged in argument, it may be taken that sending a person to prison will more often than not cause hardship, sometimes serious hardship, and sometimes extreme hardship, to another person. It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged, in the course of their duties, to sentence offenders who may be breadwinners of families, carers, paid or unpaid, of the disabled, parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood, and many others, in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a term of full-time imprisonment."

See also Hoskins v R [2016] NSWCCA 157 at [63] where this passage was quoted with approval.

113. There is no bright line between circumstances that are exceptional and those that are not. An evaluative determination must be made on the particular facts of the case. Here, notwithstanding that the offender clearly has some support within his community reflected by the character testimonials tendered on his behalf, I find that the circumstances of this offender does warrant a finding of exceptional circumstances, particularly having regard to a history of M’s recurrent hospitalisations, her daily regime of care and accepting the opinion of her treating nephrologist which was not challenged by the Crown. I therefore find that this is a matter that must be taken into account in mitigation of the seriousness of the offending in Sequence 1. Whilst it is clear that subjective considerations must not cause inadequate weight to be given to the objective circumstances, in Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54, Kirby J said at [68]:-

“Each case must be judged on its own facts. The adoption of a blanket rule would itself be an error of sentencing principle. A discretion must be left to permit those with the responsibility of sentencing to take into account the peculiar circumstances of the case, any exceptional circumstances affecting the prisoner, and in some cases the prisoner's family, or some feature of the matter that reasonably arouses a judicial decision that a measure of mercy is called for in the particular case”.

I find that this is such a case.

114. I accept the opinion expressed by the author of the SAR that the offender is a medium to low risk of re-offending, and Mr Watson-Munro’s opinion that such risk is trending towards a low risk. Given that he has commenced treatment for his mental health issues, I find that the offender has reasonable prospects for rehabilitation.

115. In addition to any remorse demonstrated by his early plea of guilty, and concessions made to Telstra in the Supreme Court proceedings brought by his employer, I find that the offender has expressed genuine remorse and contrition for his offending behaviour. The loss of the offender’s employment by Telstra does not amount to extra-curial punishment to be taken into account on sentence. In Wanstall v R [2024] NSWCCA 167, Sweeney J (with whom Stern JA and Cavanagh J agreed) dealt with a divergence of views in appellate courts about the significance of the loss of an offender’s career in sentencing, referring to the High Court of Australia’s decision in Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21. Sweeney J referred to R v Talia [2009] VSCA 267 where the Victorian Court of Appeal accepted that disqualification from an offender’s chosen profession constitutes extra-curial punishment, “although the Court distinguished between a disqualification resulting from criminal conduct in the course of employment and criminal conduct remote from that employment but having that consequence” (at [48]). As this offending conduct clearly arose in the course of the employment of the offender, it cannot be taken into account as extra-curial punishment but rather is the inevitable consequence of his offending.

116. There is no issue taken by the offender that the threshold in s5 of the CSPA has been crossed and no sentence other than imprisonment is warranted in all of the circumstances. I intend to sentence the offender by way of an aggregate sentence pursuant to s53A of the CSPA. So as to provide transparency in the sentencing process, I provide the following indicative sentences:-

Sequence 1 – From a starting point of 4 years imprisonment, taking into account 25% utilitarian discount on sentence, and the Form 1 offence, the indicative sentence is 3 years imprisonment.

Sequence 3 – A term of 12 months imprisonment.

117. Any aggregate sentence must be subject to proportionality and the principle of totality in criminality. Any aggregate sentence must be "just and appropriate" to the totality of the offending behaviour. In R v Van Ryn [2016] NSWCCA 1, the Court of Criminal Appeal had regard to the following summary of the correct approach to the assessment of sentence for multiple offences, with proper regard to the totality of the criminality involved:

"[228] Street CJ described the principle of totality in sentencing in R v Holder; R v Johnstone (1983) 3 NSWLR 245 at 260 as follows:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

118. The Court went on to emphasise the need to maintain public confidence in the administration of justice when sentencing for multiple offences, and also referred to the judgment of Howie J in Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 at [27]:

“There is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed what is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative, otherwise there is a risk that the total sentence will fail to reflect the total criminality of two offences. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.”

119. Here, having regard to the Court of Criminal Appeal’s decision in Badaric v R and applying principles of totality, the sentences for Sequences 1 and 3 should be concurrent. I therefore intend to impose a sentence of 3 years imprisonment.

120. Pursuant to s66(1) of the CSPA, community safety must be a paramount consideration in determining whether to impose an ICO. Having regard to the offender’s need to care for his daughter, M, and to continue his own treatment and having regard to the purposes of sentencing in s3A of the CSPA as set out above, I am satisfied that there is no risk to community safety and that serving his sentence by way of full time detention would not be more likely to address this offender’s risk of re-offending. I therefore intend to impose an order that the offender’s sentence be served pursuant to an ICO pursuant to s7(1) of the CSPA.

Orders

121. I hereby order as follows:-

122. You are convicted of the offence in Sequence 1, dishonestly obtain financial advantage or cause financial disadvantage by deception, an offence pursuant to s192E(1)(b) of the Crimes Act 1900 (NSW).

123. You are convicted of the offence in Sequence 3, knowingly deal with proceeds of crime, an offence pursuant to s193B(2) of the Crimes Act 1900.

124. I certify that I have taken into account the matter on the Form 1 attached to Sequence 1.

125. I sentence you by of an aggregate sentence pursuant to s53A of the CSPA to a term of 3 years imprisonment.

126. Pursuant to s7(1) of the CSPA, the sentence imposed on you is to be served by way of an Intensive Correction Order. The sentence will commence today.

127. You must report to the Community Corrections office at Fairfield as soon as practicable but no later than 7 days from today.

128. The standard conditions of the order will apply:-

(a) You must not commit any offence; and (b) You must submit to supervision by a Community Corrections officer.

8. Because of the exceptional circumstances found in relation to your care of your daughter, M, no additional conditions will apply.
9. If you fail to comply with the conditions of this order, 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.
10. If the order is revoked, you may be required to serve all or some of the period of your sentence in full-time custody.
11. You are now directed to attend the court registry where a copy of this order will be explained and given to you.

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