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13
Court of Criminal Appeal 20 July 2016

Jeyavel Thangavelautham v R

[2016] NSWCCA 141

Fraud & dishonesty
CRIMINAL LAW APPEAL CONVICTION CONSPIRACY TO DEFRAUD WHETHER VERDICT UNREASONABLE APPEAL

Citation: Jeyavel Thangavelautham v R [2016] NSWCCA 141
Court: NSW Court of Criminal Appeal
Date: 20 July 2016
Judges: Bathurst CJ; Hoeben CJ at CL; RS Hulme AJ (dissenting on sentence)

Background

The applicant was the ringleader of a sophisticated credit card skimming operation. He entered Australia under a false name, imported a dummy EFTPOS terminal from overseas, and arranged for it to be installed at a supermarket in Strathfield. The terminal was configured to harvest card numbers and PINs without communicating with financial institutions, instead printing false receipts. The scheme involved recruiting a fake employee to appear on CCTV and provide the store owner with plausible deniability.

Intercepted phone calls disclosed an intention to skim approximately 1,000 cards, and the Strathfield store was not the only intended site. The terminal successfully skimmed at least four cards before police intervened and arrested the applicant and four co-offenders.

The applicant was convicted of conspiracy to defraud persons unknown and sentenced to an aggregate term of 11 years' imprisonment with a non-parole period of 8 years and 3 months. His co-offender, who acted as a middleman, received an aggregate sentence of 6 years with a non-parole period of 4 years (which included a separate conspiracy and reflected a guilty plea with a finding of special circumstances).

  • Whether the conviction was unreasonable on the basis that the conspirators may have intended to on-sell harvested card data to third parties, rather than use it personally, and whether that distinction negated the necessary intent to defraud.
  • Whether the sentencing judge erred by failing to give credit for the manner in which the applicant conducted his trial.
  • Whether the sentencing judge erred by failing to consider parity with the sentence imposed on the co-offender, giving rise to a justifiable sense of grievance.
  • Whether the overall sentence was manifestly excessive.

Decision

Conviction appeal (unanimously dismissed)

The Court confirmed that conspiracy to defraud requires an actual intention to defraud, not merely an expectation that fraud will result. The applicant argued that because the plan may have been to sell the card data to third parties rather than use it directly, the requisite intent was absent. The Court rejected this. Harvesting credit card information by deceptive and dishonest means put the underlying accounts at risk of unauthorised access. Whether that risk was created by on-selling the data or using it personally, the conspiracy to defraud was made out because the conspirators intended to take advantage to themselves by putting others' property at risk.

Trial conduct (dismissed)

The applicant contended that the sentencing judge should have given him credit for the way he conducted the trial, including consenting to the tender of a large volume of prosecution evidence. The Court held that, while facilitating the course of justice can be a relevant sentencing consideration, it is not mandatory and the weight to be given to it is a matter for the sentencing judge. No error was demonstrated on this ground.

Parity and justifiable sense of grievance (majority allowed the appeal on this ground)

Bathurst CJ, with Hoeben CJ at CL agreeing, held that the sentencing judge erred by making no reference to the co-offender's sentence and failing to consider the parity principle at all. While the applicant played a larger role and the co-offender had subjective mitigating factors not available to the applicant, the disparity between the sentences was not sufficiently explained by those differences, including when aggregate sentences incorporating different crimes for each offender were compared. RS Hulme AJ dissented, finding the disparity justified by the applicant's greater entrepreneurial role and the sophistication of the operation, and would not have disturbed the sentence given the magnitude of the offending and the imperative of general deterrence.

Manifestly excessive

The majority agreed that the sentence as originally imposed was excessive when viewed through the lens of parity, and substituted a reduced sentence. The Court affirmed, however, that offending of this kind, which has the potential to undermine public confidence in the financial system, demands sentences that reflect both general and specific deterrence.

Orders Made

  • Leave to appeal against conviction granted; conviction appeal dismissed.
  • Leave to appeal against sentence granted; sentence appeal allowed.
  • Sentences imposed at first instance set aside and replaced with a term of 9 years and 8 months' imprisonment, with a non-parole period of 7 years and 3 months, commencing 14 August 2011 and expiring 13 November 2018, with a balance of term expiring 13 April 2021.
  • Commencement date of sentences imposed by Garling ADCJ on 14 September 2015 varied to 13 November 2018.
  • The applicant to be eligible for parole on 13 November 2019.

Key Takeaways

  • A conspiracy to defraud is established where the conspirators intend, by dishonest and deceptive means, to put another person's property at risk, even if the intended benefit to the conspirators flows indirectly, such as through on-selling stolen data rather than using it personally.
  • The parity principle requires a sentencing court to consider sentences imposed on co-offenders, and a failure to refer to a co-offender's sentence at all may constitute error. The principle applies even where the charges are not formally identical and where aggregate sentences incorporate different additional offences for each offender.
  • Facilitating the conduct of a trial, such as consenting to the tender of prosecution evidence, is a factor that may be taken into account in sentencing but is not a mandatory consideration, and its weight is a matter for the sentencing judge.
  • Where a conspiracy targets a significant number of victims, a sentencing court is not confined to the maximum penalty for a single substantive offence; the intended scale of offending is a relevant factor in calibrating the sentence.
  • Credit card skimming operations that threaten the integrity of the financial system attract strong general and specific deterrence principles, and this was affirmed by both the majority and the dissent, differing only on whether the parity ground warranted a reduction.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93T, 178BA, 192E, 192J, 192K, 256(1)

Cases
- Gerakiteys v The Queen [1984] HCA 8; 153 CLR 317
- R v LK [2010] HCA 17; 241 CLR 177
- Peters v The Queen [1998] HCA 7; 192 CLR 493
- Bolitho v Western Australia [2007] WASCA 102; 34 WAR 215
- R v Kastratovic (1985) 42 SASR 59
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- R v Hoar [1981] HCA 67; 148 CLR 32
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Hili v The Queen [2010] HCA 45; 242 CLR 520
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- JM v The Queen [2014] NSWCCA 297
- R v Doff [2005] NSWCCA 119; 54 ACSR 200
- R v Nguyen & Luong [2011] NSWSC 562
- R v Araya [2005] NSWCCA 283; 155 A Crim R 555
- R v Harrower [1999] VSCA 182
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- M v The Queen [1994] HCA 63; 181 CLR 487