Citation: R v Bin LI and Kun WANG [2013] NSWDC 211
Court: District Court of New South Wales
Date: 23 August 2013
Judge: Cogswell SC DCJ
Background
The first offender operated an extensive and well-organised credit card fraud scheme from his home, which functioned as a virtual factory for producing counterfeit credit cards and false identification documents. Police seized over 11,700 blank credit cards from his garage alone, along with embossing machines, card printers, magnetic encoders, holograms, and thousands of sets of identification data. A multi-agency strike force had intercepted telephone calls revealing the full scope of the operation.
The second offender acted as a shopper and disposer of fraudulently obtained goods, using counterfeit credit cards to purchase high-end luxury items at retail stores. The first offender directed her activities by phone, at times acting as a lookout. She also participated in on-selling the fraudulently obtained goods.
When police arrested the first offender at his home, they also found three bags containing methylamphetamine in a quantity consistent with supply, digital scales, resealable bags, and nearly $29,000 in cash in a bedside drawer. The cash was linked by telephone intercepts to money received from persons he supervised as shoppers.
Legal Issues
- What sentences were appropriate for the first offender across four charges: two counts of making or possessing equipment to make a false document (s 256(1) Crimes Act 1900), one count of possessing equipment to make identification documents with intent (s 192L Crimes Act 1900), and one count of supply of a prohibited drug (s 25(1) Drug Misuse and Trafficking Act 1985), with a further proceeds of crime offence taken into account on a Form 1?
- What sentence was appropriate for the second offender on one count of knowingly dealing with proceeds of crime (s 193B(2) Crimes Act 1900)?
- How should the totality principle apply to ensure the aggregate sentences were proportionate?
- Were special circumstances established, justifying a variation to the standard non-parole period ratio?
Decision
His Honour sentenced the first offender as the directing mind of the scheme. The credit card offences were characterised as participatory (directly facilitating fraud), while the identity document offence was treated as preparatory. His prior convictions for fraud and dishonesty offences were significant, given that the current offences were of the same character. The methylamphetamine found was in a quantity deemed, by operation of statute, to be for supply.
Mitigating factors for the first offender included a gambling addiction identified as a driver of his offending, genuine remorse expressed in a letter to the court, commencement of courses in custody, and a plea of guilty attracting a 25 per cent discount. His Honour found special circumstances existed, primarily because this was the first offender's first full-time custodial sentence, and because an extended parole period would allow him to access interpreters in his dialect more readily in the community, supporting rehabilitation.
The second offender's role was assessed as lesser than her co-offender's, but nonetheless operative in putting the scheme into action. She used the counterfeit cards personally and facilitated the on-selling of goods. She had no prior criminal history, and her plea of guilty also attracted a 25 per cent discount. Special circumstances were found in her case given it was her first time in custody, and the need to allow her to resume employment and her caring role within her family.
His Honour applied the totality principle to ensure that the combined effect of the sentences remained proportionate and not crushing, adjusting individual sentences accordingly.
Orders Made
Bin Li:
- Count 1 (s 256(1), credit card equipment): 3 years imprisonment, non-parole period 20 months
- Count 2 (s 256(1), additional credit card equipment): 2 years imprisonment, non-parole period 14 months (cumulative in part)
- Count 3 (s 192L, identification document equipment): 12 months imprisonment (concurrent)
- Count 4 (s 25(1), deemed supply of methylamphetamine, with proceeds of crime offence on Form 1): 3 years imprisonment, non-parole period 20 months (cumulative in part)
- Total effective sentence: 5 years 6 months, non-parole period 3 years
Kun Wang:
- Count 1 (s 193B(2), knowingly dealing with proceeds of crime): 2 years imprisonment, non-parole period 9 months
- Parole conditions: good behaviour; notification of change of residential address; attendance at court if notified to do so
Key Takeaways
- The District Court treated the directing mind of a large-scale fraud operation significantly more harshly than an operative participant, reflecting the difference in culpability between organising and executing such a scheme.
- Prior convictions for offences of the same character (fraud and dishonesty) carry particular weight in sentencing for credit card and identity fraud offences, even where other mitigating factors are present.
- Special circumstances justifying an extended parole period can be established on the basis of language and interpreter access needs in the community, where this is directly relevant to a rehabilitation pathway.
- A 25 per cent discount on sentence was applied to both offenders for pleas of guilty, consistent with established sentencing principle.
- Under the totality principle, individual sentences must be adjusted so that the aggregate term is not disproportionate to the overall criminality, particularly where multiple charges arise from a single course of conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 192L, 193B(2), 256(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 50, 53A
- Drug Misuse and Trafficking Act 1985 (NSW), ss 25(1), 39P
- Confiscation of Proceeds of Crime Act 1989 (NSW)
Cases:
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Guo [2010] NSWCCA 17; (2010) 201 A Crim R 403
- Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135
- Tsakonas v R [2009] NSWCCA 258; (2009) 197 A Crim R 581