Citation: Kramarzewski & El Ghoul v R [2015] NSWDC 400
Court: District Court of New South Wales
Date: 17 December 2015
Judge: Neilson DCJ
Background
Two courier drivers, employed by StarTrack Express, participated in a fraud against Telstra Corporation Limited between December 2013 and November 2014. A third party, the principal organiser of the scheme, repeatedly placed orders for mobile phones using false names and real-but-mismatched addresses across south-west Sydney. The courier drivers, who handled Telstra deliveries under a strict identification-verification procedure, would locate the fraudulent packages on their trucks and deliver them to the organiser at various addresses, accepting false identification in the process.
The total loss to Telstra was approximately $834,000. One driver was responsible for deliveries totalling around $466,000 in lost devices; the other was responsible for approximately $313,000. Neither driver received significant financial benefit from the scheme. The fraudulently obtained handsets were later traced to locations including New York, India, Russia, Kuwait, and Argentina.
Both men were convicted and sentenced in the Local Court at Burwood on 4 November 2015. The Magistrate imposed full-time custodial sentences of 16 months (with a 10-month non-parole period) and 18 months (with a 12-month non-parole period) respectively. Both men appealed against the severity of those sentences to the District Court and were granted bail pending appeal, meaning neither had served any time in custody at the time of the appeal hearing.
Legal Issues
- Whether the sentences of full-time imprisonment imposed in the Local Court were manifestly excessive in all the circumstances.
- What weight should be given to the offenders' prior good character, age, low moral culpability, and minimal personal gain when determining the appropriate sentence.
- Whether suspended sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999 (NSW) were appropriate in place of full-time custody.
Decision
Neilson DCJ acknowledged that the offences were objectively grave. The fraud involved a large financial loss to Telstra, was sustained over nearly a year, and required the offenders to deliberately bypass the identification verification procedures they were required to enforce. The court did not minimise the seriousness of that conduct.
However, the court placed significant weight on the offenders' individual circumstances. Both men were of prior good character, with no relevant criminal history. Both were grandfathers and older men, one aged 67 and the other 51. Each had received little or no financial gain from the fraud. The court found that their moral culpability, while real, was low relative to the objective gravity of the offending. The principal organiser of the scheme was the person who conceived and directed the fraud; the courier drivers were participants, not architects.
The District Court set aside both Local Court sentences and imposed reduced terms. In each case, the court ordered that the sentence be suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999, releasing each offender on a good behaviour bond. The court made clear that breach of the bond would result in the offenders being returned to serve their sentences in full-time custody, with the non-parole periods noted as a significant consequence of any further offending.
Orders Made
For the first appellant:
- Sentenced to imprisonment for 12 months, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999
- Released on a good behaviour bond for 12 months
- Required to appear before the court if called upon, be of good behaviour, reside at the nominated address, and notify the Registrar of any change of address
For the second appellant:
- Sentenced to imprisonment for one year and four months, suspended under s 12 of the Crimes (Sentencing Procedure) Act 1999
- Released on a good behaviour bond for one year and four months
- Required to appear before the court if called upon, be of good behaviour, reside at the nominated address, and notify the Registrar of any change of address
Key Takeaways
- The District Court held that full-time imprisonment was not warranted where offenders participated in a serious fraud but occupied a subordinate role, received minimal personal gain, were of prior good character, and presented low moral culpability relative to the principal organiser.
- Objective gravity alone does not compel a custodial sentence. The court balanced the scale of financial harm against the individual circumstances of each offender, including age, background, and the nature of their involvement.
- Under s 12 of the Crimes (Sentencing Procedure) Act 1999, a court may suspend the execution of a sentence of imprisonment and release an offender on conditions, including a good behaviour bond.
- A clear distinction existed between the courier drivers as participants and the scheme's organiser. The court's assessment of culpability was calibrated to each offender's actual role, not merely the aggregate loss caused by the fraud as a whole.
- Suspended sentences carry real consequences: the court expressly advised both offenders that any breach beyond a trivial matter would result in their return to court and likely service of the remaining sentence in full-time custody.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (power to suspend sentences of imprisonment)
Cases cited: None identified in the judgment text or metadata.