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District Court 25 January 2013

R v Choi

[2013] NSWDC 28

Fraud & dishonesty
CRIMINAL LAW SENTENCE COMMONWEALTH AND STATE OFFENCES FORMS 1 MAKING A FALSE INSTRUMENT DEALING WITH THE PROCEEDS OF CRIME.

Citation: R v Choi [2013] NSWDC 28
Court: District Court of New South Wales
Date: 25 January 2013
Judge(s): Berman SC DCJ

Background

The offender, a Korean national who had completed a Bachelor of Actuarial Studies at Macquarie University and commenced postgraduate study, was sentenced for a series of Commonwealth and state fraud offences. His criminal conduct spanned a substantial period and involved obtaining false identification documents, opening bank accounts under false names, and forging cheques to extract money from those accounts. He also possessed blank Medicare cards intended for use in identity fraud.

The offender was not acting alone. The court accepted that he was operating on the instructions of an unidentified person or persons. After entering custody, the offender indicated he was willing to name those individuals, but that offer was not taken up by authorities.

At the time of sentencing, the offender had spent approximately two and a half years on remand. The court described this delay as regrettable in the extreme, noting it was contrary to the interests of justice for offenders to wait so long for their matters to be finalised.

  • What sentences were appropriate across five indictment counts and associated Forms 1, covering Commonwealth and state offences?
  • How should the court weigh the offender's extended period on remand against the seriousness of his overall criminality?
  • Whether the time already served was sufficient to constitute an appropriate non-parole period, given the extent and duration of the offending.
  • How to structure the sentence across a Commonwealth fixed-term and an aggregate state sentence.

Decision

The court found the offending was serious, sustained, and industrious. The offender used computer skills, including photo-editing software, to create false identification documents and forged cheques. The Rural Bank alone sustained a loss of approximately $80,000, and $7,000 was successfully withdrawn from an AMP Credit Union account before a forged cheque was dishonoured.

The court accepted mitigating factors including the offender's lack of prior criminal history, his cooperation indicating a willingness to name co-offenders, his relative youth, his academic achievements, and the hardship of his extended remand period. The fact that the offender acted on instructions, rather than as the organising mind, also carried some weight.

On the question of whether time already served was sufficient, the court rejected the submission that it approached the bottom of the appropriate range. Given the length and volume of the offending, releasing the offender at or near the sentencing date would not properly reflect the criminality involved. The court noted the fundamental sentencing principle that a non-parole period must bear a proper relationship to the seriousness of the conduct.

The court imposed a fixed term for the Commonwealth offence and an aggregate sentence for the state counts, finding there was no utility in a conditional release period attached to the Commonwealth matter given the structure of the state sentence. A special circumstances finding was made in the offender's favour, partly because his remand period had limited his access to rehabilitative programs.

Orders Made

  • Count 1 (Commonwealth, attempting to possess blank Medicare cards): fixed term of 18 months imprisonment, dating from 12 July 2010.
  • Counts 2 to 5 (state offences, aggregate): non-parole period of 2 years with a head sentence of 4 years, dating from 12 July 2011.
  • Effective total sentence: non-parole period of 3 years, parole eligibility period of 2 years, head sentence of 5 years.
  • Non-parole period expiry and parole eligibility date: 11 July 2013.
  • Section 166 certificate offence (possession of marijuana): convicted, no further punishment under s 10A of the Crimes (Sentencing Procedure) Act.
  • Drugs ordered to be destroyed.

Key Takeaways

  • The District Court confirmed that a non-parole period must bear a proper relationship to the seriousness of an offender's overall criminality, and that a lengthy period on remand does not automatically translate into a sufficient effective sentence.
  • Where an offender acts on the instructions of unidentified others, this may mitigate culpability, but it does not override the need for the sentence to reflect the volume and duration of the offending.
  • A fixed term is an available structure for a Commonwealth offence where a conditional release period would serve no practical purpose alongside a concurrent aggregate state sentence.
  • Special circumstances justifying a departure from the standard non-parole to head sentence ratio can arise from restricted access to rehabilitative programs during an extended remand period.
  • Sustained, technology-assisted identity fraud involving multiple false identities, forged instruments, and false Medicare cards, carried out over a lengthy period, will attract meaningful custodial sentences even where the offender has strong personal antecedents and no prior criminal history.

Legislation and Cases Referenced

Legislation:
- Commonwealth Criminal Code (offences relating to false documents and financial advantage by deception)
- Crimes (Sentencing Procedure) Act (NSW), ss 10A, 16BA (Form 1 matters), s 166 certificate

Cases:
- R v Ali [2008] NSWCCA 60