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Court of Criminal Appeal 5 November 2010

Yow v R

[2010] NSWCCA 251

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE ORGANISED CRIMINAL SYNDICATE

Citation: Yow v R [2010] NSWCCA 251
Court: New South Wales Court of Criminal Appeal
Date: 5 November 2010
Judge(s): Hodgson JA, Price J, Fullerton J

Background

The appellant was a Singaporean national who had travelled to Australia with the specific purpose of participating in an organised criminal syndicate using counterfeit credit cards. Police executed a search warrant on shared rented premises in Bexley and found 25 counterfeit credit cards bearing the appellant's signature, a fraudulent driver's licence in another person's name bearing his photograph, and purchase receipts.

The appellant pleaded guilty in the Central Local Court to nine offences, including making false instruments, using false instruments, possessing a false instrument, and knowingly dealing with the proceeds of crime. The total amount obtained through fraudulent use of the counterfeit cards was approximately $41,000. He also opened a bank account using a false address to deposit and later remit proceeds overseas.

The District Court sentenced the appellant to an effective head sentence of three years and ten months with a non-parole period of just under three years. The appellant sought leave to appeal against those sentences in the Court of Criminal Appeal.

  • Whether the sentencing judge erred by taking into account the prospect that the appellant would be deported upon release when structuring the sentences
  • Whether the individual sentences, and the overall effective sentence, were manifestly excessive having regard to the nature and scale of the offending

Decision

On the deportation question, the Court found that the sentencing judge had not erred. The judge had acknowledged the prospect of deportation as a relevant consideration and had sought to mitigate the additional hardship that flow from the appellant serving his sentence in a foreign country without meaningful family support. Rather than constituting an error, this reflected a conventional and permissible approach to the sentencing discretion.

On manifest excess, the Court found that the sentences were within her Honour's sentencing discretion. The offending was properly characterised as at or slightly below the mid-range of seriousness, and the sentencing judge had allowed a 25 per cent discount for the guilty plea along with an unquantified further discount for assistance provided to authorities. The Court noted that the appellant arrived in Australia solely to participate in the fraud, which the sentencing judge correctly treated as an aggravating factor under the relevant sentencing legislation.

The Court also addressed the appellant's reliance on comparable cases. It reiterated that a sentence is not apt to be quashed merely because it differs from sentences imposed in other cases, even on broadly comparable facts. The two cases cited by the appellant (R v Finn and R v Fisher) both involved neither a syndicated fraud nor the same combination of aggravating features, making direct comparison of limited assistance. The Court also cautioned that using Judicial Commission statistics to demonstrate error carries its own risks, because it is impossible to know whether collated sentences involved comparable forms of fraud or comparable levels of criminal organisation.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court's recognition of an offender's prospect of deportation, and the additional hardship of serving a sentence abroad without family support, is a permissible consideration rather than a legal error.
  • The Court of Criminal Appeal confirmed that a sentence will not be overturned on appeal merely because it differs from sentences imposed in other cases, even where facts appear broadly comparable.
  • In dismissing the appeal, the Court emphasised that organising or facilitating a sophisticated, syndicated fraud is a significant aggravating feature that distinguishes such offending from individual or opportunistic credit card fraud.
  • Arriving in Australia with the sole purpose of committing fraud was properly treated as an aggravating factor under the Crimes (Sentencing Procedure) Act 1999.
  • Using Judicial Commission sentencing statistics to demonstrate manifest excess carries inherent limitations, particularly where the collated data cannot be refined to account for the form of fraud or the organised nature of the criminal enterprise involved.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 300(1), 300(2), 302, 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(n)
- Criminal Appeal Act 1912 (NSW)

Cases
- Johnson v R; Moody v R [2010] NSWCCA 124
- R v Fidow [2004] NSWCCA 172
- R v Finn [2002] NSWCCA 86
- R v Fisher [2001] NSWCCA 143
- R v George [2004] NSWCCA 247; 149 A Crim R 38
- R v Trevenna [2004] NSWCCA 43; 149 A Crim R 505
- R v Van Xuan Nguyen [2005] NSWSC 600
- Rose v R [2010] NSWCCA 166