Citation: P v Amir Shahzad [2009] NSWLC 20
Court: Local Court of New South Wales (Downing Centre)
Date: 12 July 2009
Judge(s): Chief Magistrate G L Henson
Background
The offender faced five counts of obtaining a financial advantage by deception under s 178BA(1) of the Crimes Act 1900, carrying a maximum penalty of five years imprisonment. The offending occurred across two separate periods: July 2007 and March to April 2008. On each occasion, the offender obtained false identity documents, used them to acquire credit cards from financial institutions, and diverted the funds to his businesses, gambling, drug use, and personal expenses, with no intention of repayment.
The total amount obtained across the five offences was $59,772.38. The offender had a criminal history dating to 1994, including prior dishonesty offences of a similar nature. He had also been on conditional liberty under a s 10 bond at the time of the first series of offences.
Legal Issues
- What weight should the Local Court give to the statutory maximum penalty relative to its own jurisdictional ceiling of two years imprisonment?
- How should the offender's prior criminal record be taken into account as an aggravating factor under s 21A(2)(d) of the Crimes (Sentencing Procedure) Act 1999?
- What effect did the breach of a good behaviour bond have on sentencing?
- What mitigating factors, including a guilty plea and pre-sentence custody, were available to the offender?
- Whether the sentences should be accumulated or concurrent, and whether home detention was appropriate.
Decision
The Chief Magistrate confirmed that the two-year jurisdictional maximum in the Local Court is not a sentencing ceiling equivalent to a "worst case" maximum. Following R v Doan, the court is required to impose a penalty reflecting the objective seriousness of the offence, tempered by subjective factors, taking care only not to exceed its jurisdictional limit. The offending here was characterised as systematic, planned, and motivated by greed rather than need.
On aggravating factors, the court found that the offender's prior record, which included dishonesty offences of a similar nature from 1997, undermined his capacity to establish good character or prospects of rehabilitation as mitigating factors. The breach of his s 10 bond at the time of the first offence was treated as a significant aggravating circumstance. Drawing on R v Cicekdag, the court reasoned that the commission of further offences while on conditional liberty demonstrated that the mechanism designed for rehabilitation had failed. The court declined to impose yet another bond.
The court accepted a guilty plea as a mitigating factor but found its weight was diminished given the circumstances. Pre-sentence custody of approximately three months and four days (from 23 August 2008 to 2 December 2008) was taken into account. The court also noted that stringent bail conditions, while relevant, did not equate to custody in a recognised rehabilitation setting.
The court elected to accumulate the sentences, arriving at a total term of 17 months and 26 days. It declined to set a non-parole period for the 2007 offence. The proceedings were adjourned to January 2010 for a home detention suitability assessment, with the offender allowed bail in the meantime. The court indicated that home detention, if found suitable, would allow the offender to engage in rehabilitation programmes and commence compensation payments.
Orders Made
• Total sentence of 17 months and 26 days imprisonment
• Sentence for sequence 2: 12 months imprisonment
• Sentence for sequences 6, 8 and 9: 9 months imprisonment each
• 15% discount applied resulting in 7 months and 20 days for each offence
• Non-parole period declined for the 2007 offence pursuant to Section 45(1)(b) of the Sentencing Act
• Sentences for second series of offending to commence at expiration of 10 months and 6 days sentence imposed for first offence
• Commencement date backdated to account for 101 days pre-sentence custody
• Proceedings adjourned until 21 January 2010 for assessment of suitability for home detention
• Offender allowed bail as before
Key Takeaways
- The Local Court's two-year jurisdictional ceiling is a jurisdictional maximum only, not a sentencing benchmark for the worst category of offence. Sentences must reflect the objective seriousness of the conduct, consistent with R v Doan.
- Breaching a good behaviour bond by committing further offences is a statutory aggravating factor under s 21A(2)(j), and the court drew an analogy between bond breaches and parole breaches when assessing the weight of that aggravation.
- A prior record of similar dishonesty offences can directly undermine a claim to mitigating factors such as good character or prospects of rehabilitation under s 21A(3).
- Under R v Walker, sentencing courts must articulate precisely how an offender's prior record has been taken into account; a bare reference to the statutory provision is insufficient.
- Where sentences are accumulated, the court retains a discretion under s 45(1)(b) of the Sentencing Act to decline to set a non-parole period, and may adjourn for assessment of home detention as an alternative method of serving the sentence.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 178BA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 23A(3)(k), 45(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10 (bond)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 76 (home detention)
Cases
- R v Doan (2000) 50 NSWLR (at [35])
- R v McNaughton [2006] NSWCCA 242
- Tsakonas v R [2009] NSWCCA 258
- Veen (No 2) (1988) 164 CLR 465
- R v Walker [2005] NSWCCA 109
- R v Cicekdag (2004) 150 A Crim R 299
- Siganto v R (1998) 194 CLR 656
- R v Thomson & Houlten (2000) 49 NSWLR 383
- R v Dib [2003] NSWCCA 117
- R v Harmouche [2005] NSWCCA 398
- R v Stamboulis [2006] NSWCCA 56
- R v Borkowski [2009] NSWCCA 109
- R v Pierce (1998) 194 CLR 610
- R v MAK [2006] NSWCCA 381