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Court of Criminal Appeal 11 December 2012

Yeonata v R

[2012] NSWCCA 211

Fraud & dishonesty
CRIMINAL LAW SENTENCE OTHER OFFENCES INVOLVING IDENTITY THEFT MULTIPLE FORM 1 OFFENCES FOREIGN NATIONAL PAROLE PERIOD

Citation: Yeonata v R [2012] NSWCCA 211
Court: NSW Court of Criminal Appeal
Date: 11 December 2012
Judges: Macfarlan JA, Johnson J, Davies J (Davies J delivering the leading judgment, with the others agreeing)

Background

The appellant, an Indonesian national, pleaded guilty to 37 counts of dealing in the proceeds of crime under s 193B(1) of the Crimes Act 1900 (NSW), each carrying a maximum of 20 years imprisonment, and three counts of opening a bank account with a cash dealer under a false name under s 24(1) of the Financial Transaction Reports Act 1988 (Cth), each carrying a maximum of two years. He had entered Australia illegally using a false identity, having been previously deported following suspected fraud. The sentencing judge found it "improbable beyond belief" that the appellant had returned merely to work at a fruit and vegetable market.

The offences formed part of a large fraudulent scheme in which members of a group intercepted posted cheques, altered or counterfeited them, and deposited them into fraudulently created bank accounts before withdrawing the funds. The appellant's role was to attend banks carrying false identity documents, including passports, birth certificates, Medicare cards, and drivers' licences in fabricated names, in order to open accounts and deposit the stolen cheques. Police estimated he personally dealt with approximately $1 million in fraudulent transactions, retaining around $45,000 as a commission.

Judge Finnane RFD QC sentenced the appellant on 11 March 2011 to a total non-parole period of six years and nine months with an additional term of two years and three months. The appellant sought leave to appeal on the basis that the overall sentence was manifestly excessive and that the sentencing methodology was flawed.

  • Whether the sentencing judge failed to properly determine an appropriate effective non-parole period for the overall sentence
  • Whether the sentences imposed for each individual offence were unreasonable or plainly unjust
  • Whether the overall sentence was manifestly excessive having regard to the nature and extent of the criminality
  • The correct approach to structuring sentences across a large number of offences involving identity theft and proceeds of crime
  • The relevance, if any, of the appellant's likely deportation at the conclusion of his non-parole period to the question of special circumstances

Decision

Davies J identified significant problems with the way Judge Finnane structured the sentences. The sentencing judge had imposed a number of concurrent fixed terms that commenced before the appellant's arrest date and extended beyond it, which created structural anomalies. Davies J also found that the sentencing judge's approach to the individual sequences was insufficiently transparent and did not properly reflect the accumulation required for the volume and seriousness of the offending.

On the question of manifest excess, Davies J concluded that while the overall criminality was serious, the original non-parole period of six years and nine months was excessive given the appellant was sentenced on the most favourable basis: as a courier rather than an organiser. Davies J reduced the total non-parole period to five years, with an additional term of one year and eight months.

Regarding the deportation issue, the Court accepted that the appellant's status as a foreign national who would be deported at the conclusion of the non-parole period was a relevant consideration in assessing whether special circumstances existed. However, on the facts, this consideration did not independently warrant a significant variation to the statutory ratio, beyond what was already necessary to accommodate the accumulation of sentences across multiple groups of offences.

The Court restructured the sentences into four groups of offences accumulating over distinct periods, with fixed terms for the three Commonwealth offences. This approach gave effect to the principle, drawn from authorities including R v Swadling and Pearce v The Queen, that a court sentencing for multiple offences must ensure the overall sentence is proportionate to the total criminality without simply multiplying the number of offences into an unjust aggregate.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentences imposed by Judge Finnane on 11 March 2011 quashed
  • In lieu, the appellant was resentenced as follows:
  • Group 1 (nine counts): non-parole period of 1 year commencing 3 March 2010, additional term of 4 months expiring 2 July 2011
  • Group 2 (nine counts): non-parole period of 1 year and 6 months commencing 3 December 2010, additional term of 6 months expiring 2 December 2012
  • Group 3 (thirteen counts): non-parole period of 2 years commencing 3 December 2011, additional term of 8 months expiring 2 August 2014
  • Group 4 (five counts): non-parole period of 2 years and 3 months commencing 3 December 2012, additional term of 1 year and 8 months expiring 2 November 2016
  • Three Commonwealth offences (fixed terms): 9 months each, commencing 3 March 2010, 3 June 2010, and 3 September 2010 respectively
  • The appellant directed to be released to parole on 2 March 2015 in respect of Group 4 offences
  • Overall sentence: non-parole period of 5 years, additional term of 1 year and 8 months

Key Takeaways

  • The Court of Criminal Appeal confirmed that when sentencing for a large number of offences, a sentencing court must impose a sentence for each offence while ensuring the overall result is not disproportionate to the totality of the criminality involved.
  • Grouping multiple offences and accumulating grouped sentences is an accepted structural mechanism for managing large-volume fraud matters, provided the method is transparent and the final result is proportionate.
  • A finding of special circumstances is not precluded simply because an offender is a foreign national who came to Australia to commit crimes; deportation at the conclusion of a non-parole period remains a relevant, though not determinative, consideration in the special circumstances analysis.
  • Sentencing on the most favourable available factual basis, here as a courier rather than an organiser, directly affects the appropriate head sentence, even where the offending was extensive and the amounts involved were substantial.
  • No error was established in the sentencing judge's refusal to accept the appellant's account of his role, given the judge's express credibility findings, but structural errors in how the sentences were constructed warranted intervention and resentencing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193B(1)
- Financial Transaction Reports Act 1988 (Cth), s 24(1)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Swadling [2004] NSWCCA 421
- Clarke v R [2009] NSWCCA 49
- Collier v R [2012] NSWCCA 213
- R v AB (No 2) [2011] NSWCCA 256
- R v Fraser [2000] NSWCCA 97
- R v Guo [2010] NSWCCA 170
- R v GWM [2012] NSWCCA 240
- R v MAK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Van Hong Pham [2005] NSWCCA 94
- Stevens v R [2009] NSWCCA 260
- Van Haltren v The Queen [2008] NSWCCA 274