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District Court 18 December 2009

R v MCGANN

[2009] NSWDC 379

Fraud & dishonesty
SENTENCE IDENTITY THEFT OFFENCES YOUNG OFFENDER SUBSTANTIAL SUM NOT THE PRINCIPAL OTHER CO

Citation: R v McGann [2009] NSWDC 379
Court: District Court of New South Wales
Date: 18 December 2009
Judge(s): Williams DCJ

Background

The offender, a 24-year-old man, pleaded guilty to a series of offences arising from his role in an organised identity theft and fraud syndicate operating in May 2008. The syndicate stole cheques, manufactured false identification documents (including drivers' licences, Medicare cards, and bank-issued Visa cards), opened bank accounts using those counterfeit documents, and then deposited and withdrew the stolen funds while impersonating legitimate payees. The offender acted as a "runner": he physically attended banks, opened accounts with the forged documents, and carried out the fraudulent withdrawals. He did not organise or initiate the scheme.

The offences came to light through a joint Commonwealth and New South Wales Police task force investigating identity theft and fraud. At the time of this sentencing, several co-offenders had already been dealt with, primarily in the Local Court, while others remained pending in both the Local and District Courts.

The offender was already serving a separate, unrelated 15-month sentence for reckless wounding when these proceedings were finalised. His non-parole period on that sentence had expired in October 2009, but he had not sought bail, meaning he had been held in custody on the current charges from that point.

  • What sentence was appropriate across multiple State and Commonwealth identity theft and fraud offences, having regard to the offender's role as a non-principal participant in a syndicate?
  • How should the principle of totality apply given the offender was already serving a sentence for an unrelated matter?
  • Whether parity with co-offenders who had received shorter sentences (largely in the Local Court) was relevant and how it should be weighted against the substantially greater loss attributable to this offender's conduct.
  • Whether special circumstances existed justifying an adjustment to the statutory ratio between minimum and additional terms.

Decision

Williams DCJ convicted the offender on all charges and sentenced him across four separate heads. The most serious charge, dealing with property intending it to be an instrument of crime under s 193D(1) of the Crimes Act (carrying a maximum of 15 years), related to a cheque worth over $229,000. The court noted that the 15-year maximum was reserved for conduct considerably more serious than what was before it, but the offence nonetheless warranted a significant response given the substantial actual loss of $211,500 caused by the offender's participation.

The court assessed the offender's role as secondary but necessary to the operation. He was not the organiser, but the scheme could not have succeeded without runners physically executing the transactions at bank branches. The court compared the offender's position with that of co-offenders: Mr Adam (dealt with for transactions involving approximately $13,000, no prior record) had received 12 months; Filmore and Gokool, who were involved in larger sums and in some cases organisational roles, remained to be sentenced. The offender's loss figure of $211,500 substantially exceeded most of his co-offenders' contributions, which weighed against strict parity arguments.

On totality, the court declined to accumulate all sentences end-on-end, instead structuring partially concurrent terms so that the effective additional imprisonment arising from these offences was measured and proportionate. The court found special circumstances warranted a departure from the standard one-third additional-term ratio, justified by the accumulated nature of some of the sentences. The offender's relative youth, his participation in Alcoholics Anonymous programs while in custody, a low assessed risk of recidivism, and his difficult personal history (including the death of his father at age nine and a mother with bipolar disorder) were taken into account in mitigation, balanced against the sophistication of the offending and his prior criminal record including a s 9 bond at the time of the fraud.

Orders Made

  • Conviction entered on all charges.
  • s 178B(a) offence (14 May 2008): Minimum term of 2 years, additional term of 1 year, commencing 11 March 2009.
  • s 178B(a) offence (15 May 2008) plus Form 1 matters: Minimum term of 2 years, additional term of 1 year, commencing 11 September 2009. Parole eligibility: 10 September 2011; total term expires 11 September 2012.
  • s 193D(1) offence: Fixed term of 18 months, commencing 11 September 2009.
  • Commonwealth Criminal Code s 145.1(5) offence plus Form 16B(a) matters: Fixed term of 12 months, commencing 11 September 2009.
  • Effective result: minimum term of 2 years from 11 September 2009, with all other sentences running concurrently within that framework; parole eligibility 10 September 2011; balance of term expires 11 September 2012.

Key Takeaways

  • A participant in an identity theft syndicate who is not the principal organiser may nonetheless attract substantial custodial sentences where their direct conduct caused a large financial loss, here exceeding $211,000.
  • Parity with co-offenders sentenced in the Local Court for lesser amounts is a relevant consideration, but the court weighed the substantially greater loss attributable to this offender as a distinguishing factor that reduced the force of the parity argument.
  • Where multiple sentences are accumulated (rather than fully concurrent), the District Court found this can itself constitute "special circumstances" under the Crimes (Sentencing Procedure) Act 1999 (NSW), permitting adjustment of the minimum-to-additional-term ratio.
  • The totality principle does not require all sentences to run concurrently; the court's approach of partial concurrency reflected a structured effort to avoid a crushing aggregate sentence while maintaining proportionate punishment.
  • Mitigating factors such as youth, a low assessed recidivism risk, rehabilitative efforts in custody, and a difficult personal background were considered, but did not displace the need for a sentence that reflected the seriousness and sophistication of organised fraud offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178B(a)(1) and 193D(1)
- Criminal Code Act 1995 (Cth), s 145.1(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21
- Crimes Act 1914 (Cth), s 16A

Cases cited: No cases were cited in the judgment text.