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19
Court of Criminal Appeal 22 August 2005

Araya v R

[2005] NSWCCA 283

Also reported as (2005) 155 A Crim R 555
Fraud & dishonesty
SENTENCING OFFENDER

Citation: Araya v R [2005] NSWCCA 283
Court: NSW Court of Criminal Appeal
Date: 22 August 2005
Judge(s): Simpson J, Johnson J, Rothman J

Background

The applicant was convicted in the Sydney District Court on five counts of obtaining a valuable thing by deception and one count of attempting to do so, contrary to s 178BA of the Crimes Act 1900. The offences occurred between April 2001 and June 2002. Each offence involved the applicant using the credit card numbers of other individuals, without their knowledge or authorisation, to book airline tickets and accommodation by telephone.

The applicant operated under false names and possessed two New South Wales driver's licences bearing fictitious names but his own photograph. The total value of the fraudulent transactions across all six offences was approximately $18,104, none of which was repaid. Ainslie-Wallace DCJ sentenced the applicant in the District Court, structuring the sentences to produce a total effective non-parole period of two years and a total head sentence of three and a half years, both commencing 22 August 2004.

The applicant sought leave to appeal to the Court of Criminal Appeal, contending the sentences were manifestly excessive. A separate ground raised the relevance of a sentence imposed on an associate of the applicant who was not a co-offender in the same proceedings.

  • Whether the sentences imposed by the District Court were manifestly excessive for offences under s 178BA of the Crimes Act 1900
  • Whether the sentence imposed on an associate of the applicant (who was not a co-offender) was a relevant comparator in assessing the appropriateness of the applicant's sentence
  • What factors are relevant to sentencing for offences involving the dishonest use of credit cards belonging to others

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding that the sentences imposed by Ainslie-Wallace DCJ were well within the available range for offences of this type. The Court found no error in the individual sentences, the total effective head sentence, or the total effective non-parole period.

On the question of the associate's sentence, the Court rejected the contention that it provided a useful comparator. The associate was not a co-offender in the proceedings against the applicant, and the Court held that parity principles are not engaged by reference to a sentence imposed on a person who is not a co-offender in a single case.

The Court described the offences as objectively serious. The applicant had accessed the credit card details of five separate individuals and used or attempted to use them for fraudulent purposes. The possession of two false driver's licences bearing the applicant's own photograph indicated planning and sophistication, which the Court characterised as reflecting a high level of objective criminality.

Johnson J emphasised that general deterrence is an important sentencing factor for offences involving the fraudulent use of credit cards in telephone transactions, given the widespread and legitimate reliance on credit cards for such purchases. Where offending involves a pattern of fraudulent activity over an extended period, using multiple cards and associated false documentation, specific deterrence is also a significant consideration.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that parity principles apply only between co-offenders in the same proceedings, not between an applicant and an associate sentenced separately in an unrelated case.
  • A conviction for obtaining a valuable thing by deception under s 178BA of the Crimes Act 1900 carries a maximum of five years' imprisonment; the Court confirmed that sentences in the range imposed here were open on the facts.
  • Possession of false identity documents, such as driver's licences bearing fictitious names but the offender's own photograph, is an aggravating feature that reflects planning and sophistication, and elevates the objective seriousness of the offending.
  • General deterrence is a significant sentencing consideration for credit card fraud conducted by telephone, given community reliance on this payment method for remote transactions.
  • Where an offender engages in a pattern of fraudulent credit card use over an extended period and employs multiple false identities, specific deterrence is also a relevant and weighty sentencing factor.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW)
- Service and Execution of Process Act 1992 (Cth)

Cases:
- R v SY [2003] NSWCCA 291
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Palu (2002) 134 A Crim R 174
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen [2005] HCA 25
- Lowe v The Queen (1984) 154 CLR 606
- R v Tadrosse [2005] NSWCCA 145
- R v Harrower [1999] VSCA 182
- R v Li and Ors [2005] NSWCCA 154
- House v The King (1936) 55 CLR 499
- Johnson v The Queen [2004] HCA 15
- Jones v The Queen [1993] 67 ALJR 376