Yow v R

PARTIES: Ngai Meng Yow (App) The Crown (Resp)

COUNSEL: J Stratton SC (App) J Pickering (Resp)

SOLICITORS: Legal Aid Commission (App) Director of Public Prosecutions (Resp)

• 1 - IN THE COURT OF CRIMINAL APPEAL 2009/134181

HODGSON JA PRICE J FULLERTON J

5 NOVEMBER 2010 NGAI MENG YOW v R JUDGMENT 1 HODGSON JA: I agree with Fullerton J.

3 FULLERTON J: The applicant seeks leave to appeal against sentences imposed in the District Court on 13 November 2009 after he pleaded guilty at the Central Local Court on 11 August 2009 to nine offences upon which he was committed for sentence. 4 The nine offences included two counts of making a false instrument with intent contrary to s 300(1) of the Crimes Act 1900 (with a further 23 offences of making a false instrument with intent on each of two Form 1s), five counts of using a false instrument with intent contrary to s 300(2) of the Crimes Act and one count of having a false instrument with intent to use it contrary to s 302 of the Crimes Act. All counts attracted a maximum of 10 years imprisonment. He also pleaded guilty to one count of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act for which a maximum sentence of 15 years is provided (together with three matters on a Form 1, namely a further breach of s 193B(2) of the Crimes Act and two charges of being an accessory before the fact to offending against s 300(2) of the Crimes Act). 5 The applicant was sentenced as follows: i. On each of the two counts of make false instrument with intent contrary to s 300(1), concurrent sentences of 3 years and 1 month with a non-parole period of 2 years and 4 months were imposed, to date from 7 November 2008;

ii. For having a false instrument with intent contrary to s 302, a fixed term of 12 months was imposed, also to date from 7 November 2008; iii. For the first count of use false instrument with intent contrary to s 302, a sentence of 3 years and 2 months with a non-parole period of 2 years and 2 months was imposed, to date from 7 January 2009; iv. For the further four counts of using a false instrument with intent, concurrent fixed terms of 18 months to date from 8 January 2009 were imposed; and v. For knowingly dealing with the proceeds of crime, a sentence of 3 years and 6 months with a non-parole period of 2 years, 7 months and 15 days was imposed, to date from 7 March 2009.

The effective sentence was a head sentence of 3 years and 10 months with a non-parole period of 2 years, 11 months and 14 days.

The evidence in the sentence proceedings 6 The following is a summary of the agreed facts tendered on sentence on the basis of which her Honour made various findings of fact for the purposes of sentence. 7 On 7 November 2008 police executed a search warrant on rented premises at Bexley where the applicant and a number of other Singaporean and Malaysian nationals resided.

8 In the course of the search police located 25 counterfeit credit cards bearing the applicant's signature, one New South Wales driver's licence in the name of Peter Lee but bearing the photograph of the applicant, and a number of receipts. Two of the credit cards located in the search grounded the two counts of make false instrument with intent, with the remaining 23 credit cards reflecting the matters on each of the Form 1s taken into account when sentence was imposed for those two offences. The fraudulent driver's licence grounded the single count of having a false instrument with intent. 9 The applicant was arrested and later interviewed regarding the counterfeit credit cards and the false licence. In the course of the interview he admitted to having used some of the credit cards to purchase goods at retail outlets with a view to acquiring goods that could be easily resold. This offending grounded the five counts of using a false instrument with intent, together with various of the offences taken into account on the Form 1s. The total amount obtained with the use of the counterfeit credit cards was in the vicinity of $41,000. 10 On 1 October 2008 the applicant opened an account with the Commonwealth Bank at its Haymarket branch using a false address. He initially deposited $100, followed by two deposits of $1000 and then $4000, being the proceeds of the applicant's fraudulent use of the credit cards. This grounded the charge of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act. Police also ascertained that between 9 October and 4 November 2008 the applicant withdrew money in various amounts for his own use and to remit money to Indonesia and Singapore, on each occasion in amounts less than $1000 but totalling $2700. This grounded the charge of knowingly dealing with the proceeds of crime which was taken into account when sentence was imposed for that offending on the Form 1. 11 On 22 October 2009 two of the men the applicant was living with were arrested in a car rented in the applicant's name after they had used fraudulent credit cards to make purchases of liquor and electronic devices to the value of $2400. This grounded the two charges of accessory before the fact to the use of a counterfeit credit card which were also taken into account on the Form 1 when sentence was imposed for the offence of knowingly dealing with the proceeds of crime contrary to s 193B(2) of the Crimes Act.

12 The applicant was interviewed by police further on 19 February 2009 and 24 April 2009 when he made further admissions as to his criminal conduct and offered assistance to the authorities.

13 Her Honour found that the applicant participated in an organised criminal syndicate to use counterfeit credit cards in the expectation that he would receive 12 per cent of the proceeds of the frauds he perpetrated and that he had in fact received some of the proceeds before he was arrested. She was also satisfied that although he was not a principal in the planning phase of the criminal enterprise, in the sense that he organised the production of the counterfeit credit cards or the way in which they would be fraudulently negotiated and the proceeds collected and remitted, he nevertheless played an important role in ensuring the success of the overall scheme and at a level more senior to that of his co-offenders.

14 I note that the applicant's involvement in the syndicate formed part of the agreed facts, as did the fact that he arrived in Australia with the sole purpose of using the counterfeit credit cards to obtain goods for the purposes of on-sale as the hallmark of the fraudulent operation. Her Honour regarded this as an aggravating factor which she took into account in the calculation of sentence under s 21A(2)(n) of the Crimes (Sentencing Procedure) Act 1999.

15 For the purposes of the appeal it was agreed that after taking into account the extent of the applicant's involvement in the criminal scheme overall, and after taking into account the range of offending across the individual offences and those included on the Form 1s, the offending was properly described by her Honour as offending at, or slightly below, the mid range.

16 Her Honour allowed a discount of 25 per cent for the applicant's plea of guilty and an additional, albeit unquantified, discount for the applicant's assistance to the authorities. The applicant's subjective circumstances 17 The applicant was born on 12 July 1961 and was 48 years old at the time of sentence. He is a Singaporean national and was residing in Singapore prior to his arrival in Australia. He married a Thai woman in 1998 but she was unable to obtain permanent residency to live with him in Singapore. In 1999 he had a son with his wife and thereafter began travelling to Thailand regularly to see them. He does not appear otherwise to have any significant family support. 18 In the past he was employed in the army and later worked as a motorcycle mechanic. However, about ten years ago, he commenced to gamble heavily and, as a consequence, became progressively deeply indebted to various people from whom he borrowed money to support his habit. It was those people who arranged his travel to Australia to enable him to discharge his debt to them through participating in the system of credit card fraud they had designed. Her Honour properly regarded his motivation in seeking to repay accumulated gambling debts as an explanation for his involvement in the fraudulent scheme without it being a matter available to be relied upon in mitigation.

19 At the time of his arrest the applicant's visa had expired. Her Honour noted that at the expiration of the non-parole he will, in all likelihood, be immediately deported to Singapore. She went on to find that, notwithstanding that there were some considerations favouring a finding of special circumstances, namely the fact that he has a wife and child in Thailand and that his criminal activities were committed in the context of a gambling addiction, the likelihood of deportation effectively disentitled him from being considered as a candidate for a finding of special circumstances and, in the result, she imposed sentence in accordance with the statutory ratio provided for in s 44 the Crimes (Sentencing Procedure) Act. She considered there was a need for "the rounding down" of some sentences to ensure that the total effective sentence reflected the statutory ratio. Grounds of appeal 20 The applicant advanced two grounds of appeal: the first that the sentencing judge erred by having regard to the prospect of the applicant's deportation in determining the length of the non-parole period, and the second that the sentences imposed, both individually and cumulatively, were manifestly excessive.

21 The Crown conceded that her Honour was in error in having regard to the prospect of the applicant's deportation in determining the length of the non-parole period. He also accepted that the Crown who appeared on sentence led her Honour into error. In R v Van Xuan Nguyen [2005] NSWSC 600 at [58], Johnson J stated: "It is an established principle that the fact of deportation is irrelevant as a sentencing consideration, it being a matter exclusively for the Executive Government. Moreover, the High Court of Australia has held that a foreign national should receive the benefit of being eligible for release on parole: Shrestha v The Queen (1991) 173 CLR 48 at 71; R v Van Hong Pham [2005] NSWCCA 94 at paragraph 13. The fact that the prisoner will be deported from Australia is an immaterial factor in structuring a sentence in this case: R v Van Hong Pham , above, at paragraph 14. Where an offender would otherwise qualify for a finding of "special circumstances" , a sentencing judge should not refrain from such a finding because it is believed likely that the offender may be deported at the end of the non-parole period and that supervision therefore would not be provided in Australia: R v Mirzaee [2004] NSWCCA 315 at paragraph 21."

22 The Crown submitted that, notwithstanding the error, this Court should not intervene and re-sentence the applicant because a finding of special circumstances is not open on the evidence. In addition, the Crown submitted that this Court would not be satisfied that a non-parole period less than 2 years, 11 months and 14 days is warranted within the meaning of s 6(3) of the Criminal Appeal Act 1912.

23 The applicant submitted that there was evidence which was capable of attracting a finding of special circumstances and justifying a variation in the statutory ratio between the non-parole period and the parole period because of the applicant's gambling addiction and that his wife and child, although resident in Thailand, were a source of family support. The significance of the applicant's criminal record on the question of re-sentence

24 Before turning to consider the question of whether, error being conceded, this Court should move to re-sentence the applicant, the significance of his criminal record needs to be addressed. 25 The applicant has a criminal record in Australia and what appears to be some criminal profile in Singapore relating to the unauthorised possession of counterfeit motion picture recordings for which he spent four months in custody in 2002. It is not clear whether he was convicted of that offence or spent the time in custody on remand without conviction. On the other hand, the applicant's Australian criminal record confirms that he was convicted of a range of summary offences in the Local Court at Wyong on 30 September 2008 within weeks of arriving in Australia in August 2008 and within weeks of his arrest in respect of the offending the subject of the appeal. Those offences included a goods in custody charge, using a false instrument with intent and having a false instrument with intent. On each charge he was fined $400 and required to pay court costs.

26 Although the facts grounding the laying of the summary offences did not form part of the appeal papers, there is no reason to doubt that the offences were committed by him in the course of the same criminal enterprise for which he was sentenced by her Honour. Despite being aware of his prior offending, and the fact that within days of being convicted of summary offences in the Local Court he continued to commit further offences of precisely the same kind, offending which continued without abatement up to his arrest on 7 November 2008, her Honour took into account, in his favour, what she described as his lack of a prior criminal record. I am unable to see how this finding was open to her. To the extent that it operated in some way to reduce either the individual sentences or the effective sentence imposed, it was leniency to which he was not entitled.

27 In my view, his prior offending also bears directly on the disposition of the first ground of appeal. While the fact that an offender has a criminal record and may even have served a period, or periods, of imprisonment in the past does not compel the conclusion that there should be no extension to the period to be spent on parole relative to the overall sentence, particularly where a risk of institutionalisation is made out or there are otherwise sound prospects of rehabilitation (see Rose v R [2010] NSWCCA 166), that is not the case so far as this applicant is concerned. Rather, as I see it, his continued and blatant defiance of the law, with further credit card fraud offences being committed within days of the Local Court affording him leniency by imposing a fine for that same conduct, amply demonstrates that his first encounter with the criminal justice system in this State did not deter him from continuing to commit criminal offences or bring him to an awareness of the precariousness of his position, much less cause him to reflect upon the risks of his continued involvement in the criminal scheme. To the contrary. He told Ms Duffy, a psychologist who prepared a report tendered on sentence, that he knew what he was doing was illegal and that he stood the real risk of getting caught, but that he took the risk, and, I infer, continued to take the risk, after being charged and dealt with in the Local Court. He went on to tell her that while he regretted what he had done he took responsibility for his behaviour. While this is some modest indication of remorse it does not qualify as more than that and does not, in my view, indicate he has any greater insight into his offending. Importantly, he also expressed to Ms Duffy ambivalence about his ability to stop gambling upon his deportation to Singapore given the prevalence of gambling as a feature of social life in that country. There is nothing to indicate that his attitude has changed, much less that he is concerned to address in any meaningful way the motivations behind his criminal offending.

28 While it appears that her Honour was of the view that there were certain subjective factors that may have been capable of constituting special circumstances were she not led into error by the Crown Prosecutor as to the significance of the applicant's likely deportation, it is by no means clear that she would have found special circumstances in any event.

29 The question that arises on the appeal is whether the matters the applicant relies upon are sufficiently special to enliven the discretion to vary the statutory ratio by reducing the non-parole period to something less than that imposed by her Honour. Even if the applicant's family situation or his gambling habits might qualify as special circumstances, a matter about which I remain unconvinced, the importance of the distinction between subjective considerations that may as a matter of law be capable of constituting special circumstances, and the exercise of the discretion to alter the statutory ratio, needs to be maintained (see R v Fidow [2004] NSWCCA 172). The primary consideration in the exercise of the discretion under s 44 of the Crimes (Sentencing Procedure) Act remains the length of the minimum period of incarceration and the need to ensure that it properly reflects the competing objectives provided for in s 3A of the Act. 30 In this case her Honour recognised the need for the applicant's sentence to address the issue of general deterrence. That is a consideration that scarcely needs endorsement by this Court. The cost to the community of syndicated credit card fraud is not only that it undermines consumer confidence. The losses generated by frauds of this magnitude are invariably passed on to the consumer through the imposition of higher levies or fees. The general public who increasingly use credit cards as a convenient substitute for cash on a daily basis, and the financial institutions that offer and provide a secure range of credit card facilities to both traders and consumers, are entitled to expect that the perpetrators of fraudulent schemes of the kind with which the applicant was involved are appropriately punished both to deter those who may be tempted to participate in credit card fraud and to dissuade those who might be tempted by financial reward to come to Australia with the express purpose of doing so. 31 The applicant has not persuaded me that there are special circumstances warranting an alteration to the statutory ratio between the total sentence and the non-parole period, or that a case has been made out for reducing the non-parole period imposed by the sentencing judge. I would reject the first ground of appeal. The second ground of appeal

32 The applicant's counsel relied heavily upon the Judicial Commission of New South Wales statistics in support of the submission that for each offence to which the applicant pleaded guilty, in each category of offence a sentence above what was statistically identified as the median point was imposed and, for those sentences that attracted a non-parole period, above the median point for the non-parole period in that category of offence. 33 It was submitted that in this case there was a proper basis for the imposition of a sentence below the median point for each offence. The applicant pointed to the fact that his role was less than that of a principal, he was to receive only 12 per cent of the proceeds of the fraud, the total amount generated by the presentation of counterfeit credit cards was in the vicinity of $41,000 (such that the level of objective seriousness across the body of offending was at slightly below the mid range) and there was an early plea of guilty. What this submission overlooked was that in respect of the two counts of make false instrument and use false instrument contrary to ss 300(1) and 300(2) of the Crimes Act, numerous further offences of the same kind were taken into account on each of the Form 1s, and that when the sentence was imposed for knowingly dealing in the proceeds of crime contrary to s 193B(2) of the Crimes Act, offending of a different kind was taken into account on a separate Form 1 for that offence. In total her Honour had to ensure that 33 further charges on three Form 1s were properly accounted for when imposing sentence on the substantive counts. The use of a Form 1, not an uncommon feature of a sentencing process where criminal conduct is either repeated or ongoing, is not reflected in the Judicial Commission's statistics. This alone may serve to explain the divergence between the statistics and the sentences her Honour imposed, a divergence the applicant pointed to in support of the submission that the sentences were manifestly excessive. 34 The gravamen of the applicant's submission is not that the sentences or non-parole periods were outside a permissible sentencing range, but that they were either above the median point, or, in respect of the non-parole period imposed on the count of using a false instrument with intent, at the top of the range. Quite apart from the need to emphasise that the upper limit of a sentencing discretion is the maximum penalty fixed by the Legislature (in this case 10 years and 15 years) and not the highest sentence in the collected statistics, it is also important to emphasise that while the median point in a statistical range may inspire inquiry into an appropriate sentence by providing a sentencer with some comparative guidance, it does not constrain the sentencing discretion. 35 The Crown submitted, correctly in my view, that there is an inherent risk in using the Judicial Commission's statistics to gainsay a submission that the sentences under consideration on this appeal manifest error, since it would be impossible to know how many, if any, of the sentences collated for statistical purposes involved the use of credit card fraud as opposed to some other form of deceit, or whether any of them dealt with an organised and sophisticated criminal enterprise of the kind in which the applicant was involved. 36 In my view, none of the individual sentences, or the effective sentence imposed, were beyond her Honour's sentencing discretion having regard to the scale of the fraud and the applicant's role in it. 37 Finally, I am not moved to any different view by what the applicant's counsel referred to as comparable cases. A sentence is not apt to be quashed on appeal merely because it is not the same as a sentence imposed in another case, even where the facts are comparable (see R v George [2004] NSWCCA 247; 149 A Crim R 38 at [48] - [49]). As Barr J observed in R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505, even where it might be open to compare the culpability of an offender in unrelated cases, it does not follow that where different sentences are imposed one must be wrong, and the other right. More recently, in Johnson v R; Moody v R [2010] NSWCCA 124 Barr AJ (with whom Simpson and James JJ agreed) again pointed to the difficulty of demonstrating error by reference to the facts and circumstances in unrelated cases concluding at [73]: "While there may be cause to seek such limited assistance for offences for which no discernible sentencing pattern has emerged, such consideration does not seem to me to be warranted in other cases. It should be firmly discouraged." 38 The decisions to which the applicant's counsel referred, namely R v Finn [2002] NSWCCA 86 and R v Fisher [2001] NSWCCA 143, whilst involving multiple counts of making a false instrument with intent, with further offences taken into account on a Form 1 in the case of both offenders, neither involved a syndicated fraud. Although in both cases the money generated was significantly greater than the $41,000 detected by police in their investigation of the applicant and his syndicated criminal activities, this is but one feature of objective seriousness and does not operate as a determinative or relevantly comparative factor. I would reject the second ground of appeal. 39 Accordingly, the orders I propose are: 1. Leave to appeal granted. 2. Appeal dismissed. **********

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