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Local Court 15 December 2008

Police v Jim, Keat, Sim

[2008] NSWLC 25

Fraud & dishonesty
CREDIT CARD FRAUD IDENTITY THEFT FOREIGN NATIONALS INDICIA OF ORGANISED CRIME ONLY FULL TIME CUSTODY APPROPRIATE

Citation: Police v Jim, Keat, Sim [2008] NSWLC 25
Court: Local Court of New South Wales (Wagga Wagga)
Date: 15 December 2008
Judge(s): Magistrate P.S. Dare SC

Background

Three Malaysian nationals entered Australia in August 2008 on tourist visas. On 12 November 2008, the group used or possessed a series of counterfeit Visa cards to make fraudulent purchases at multiple Wagga Wagga retailers, including The Good Guys, Big W, Dick Smith, Optus, and Coles. They were arrested the same day.

Each offender faced charges of using a false instrument, having a false instrument with intent, goods in custody, and participating in a criminal group under the Crimes Act 1900. The offender Jin faced the most charges, with 21 sequences in total. All three pleaded guilty to all charges on the day of arrest.

Magistrate Dare noted that the offenders appeared eager to resolve their matters quickly, which prompted commentary about the weight to be given to the pleas in the sentencing exercise.

  • Whether full-time custodial sentences were appropriate, or whether alternative sentencing options under s 5 of the Crimes (Sentencing Procedure) Act 1999 could be considered
  • How to apply the principle of totality and partial cumulation of sentences across a large number of related charges
  • Whether possible deportation following release was a relevant factor in sentencing foreign nationals
  • Whether the early guilty pleas warranted a discount, and if so, how much
  • Whether the offending displayed sufficient indicia of organised crime to attract the participation in a criminal group charge under s 93T of the Crimes Act 1900
  • Whether special circumstances existed to justify a departure from the standard non-parole period ratio
  • How to assess remorse where no supporting evidence was presented

Decision

Magistrate Dare found that only full-time custodial sentences were appropriate. The offending displayed clear indicia of organised crime: the group had entered Australia on tourist visas, travelled to a regional centre, and used multiple counterfeit Visa cards bearing different names at numerous businesses within a short period. The court found this conduct warranted significant denunciation and that general deterrence was a paramount consideration, particularly given the organised and systematic nature of the fraud.

On the question of possible deportation following sentence, the court acknowledged the line of authority addressing this issue for foreign national offenders but did not treat the prospect of deportation as a basis for reducing the sentences. The court's approach was consistent with established principles that the possibility of deportation does not automatically mitigate penalty.

The court allowed a discount of 30 per cent across the sentences: 25 per cent for the utilitarian value of the early guilty pleas in accordance with the principles in Regina v Thompson and Houlton, and a further 5 per cent for the pleas being to white-collar type offending. However, the court expressly found there was no evidence of genuine remorse, distinguishing a plea of guilty from an expression of contrition.

On totality and structure of sentence, the court applied partial cumulation across the sequences rather than running all sentences concurrently or fully cumulatively. The Magistrate applied the approach endorsed in Markarian v Regina, referencing Jordan CJ in Regina v Geddes, to ensure the aggregate sentence reflected the overall criminality without being disproportionate. Special circumstances were found in relation to some offenders, adjusting the ratio between non-parole period and balance of term accordingly.

Orders Made

  • Jin: convicted and sentenced to a total term of 2 years, 7 months and 15 days, with a non-parole period of 1 year, 11 months and 19 days commencing 12 November 2008 and expiring 30 October 2010, and a balance of term of 7 months and 27 days expiring 26 June 2011.
  • Keat and Sim: sentenced on their respective charges with partial cumulation applied, resulting in sentences structured across sequenced commencement dates.
  • The offenders' passports were ordered to be released from police custody into the custody of the Department of Corrective Services, to be held until the offenders' release.

Key Takeaways

  • Where offending by foreign nationals on tourist visas involves multiple counterfeit instruments used across numerous businesses in a coordinated manner, a sentencing court is likely to treat this as displaying indicia of organised crime, engaging the criminal group participation provisions under s 93T of the Crimes Act 1900.
  • General deterrence carries significant weight in sentencing for systematic credit card fraud, particularly where the offending is premeditated and targets multiple victims within a short timeframe.
  • A guilty plea, even one entered at the first available opportunity, does not itself constitute evidence of remorse. The Wagga Wagga Local Court distinguished the utilitarian value of an early plea from genuine contrition, and the absence of supporting evidence meant no mitigation on that basis was available.
  • Under the totality principle, partial cumulation of sentences across multiple related charges may produce an aggregate sentence that is neither artificially compressed through full concurrency nor crushing through full accumulation, consistent with the approach in Markarian v Regina.
  • The possibility that a foreign national offender will be deported following the completion of a custodial sentence does not automatically operate as a mitigating factor in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 93T(1), 300(2), 302, 527C(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 3A, 5, 21A(3)(i), 22(1), 50
- Criminal Procedure Act 1986 (NSW): s 267(2)

Cases:
- Cahyadi v Regina (2007) 168 A Crim R 41
- De Simoni v The Queen (1981) 147 CLR 383
- Markarian v Regina (2005) 215 ALR 213
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Thompson and Houlton 49 NSWLR 383
- Regina v Doan (2000) 50 NSWLR 115
- Regina v Geddes (1936) 36 SR (NSW) 554
- Regina v Huang (2000) 113 A Crim R 386
- Regina v Simpson (2001) 53 NSWLR 704
- Shrestha v The Queen (1991) 173 CLR 48
- Starmer v Regina [2008] NSWCCA 27
- Various other NSW Court of Criminal Appeal authorities cited in the judgment