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District Court 10 February 2017

R v RAHME

[2017] NSWDC 145

Fraud & dishonesty
CRIMINAL

Citation: R v Rahme [2017] NSWDC 145
Court: District Court of New South Wales
Date: 10 February 2017
Judge(s): Judge S Norrish QC

Background

The offender, Charbel Rahme, appeared for sentence on eight offences committed between late 2012 and his arrest on 24 February 2015. The offending centred on a large-scale identity theft operation conducted from residential premises, described by defence counsel as a "backyard operation," though the court did not accept that characterisation minimised its significance.

The offending involved acquiring the personal information of real individuals, obtaining access to their credit cards or identity documents, and using that information to acquire goods and services dishonestly. When police searched the offender's home on the date of his arrest, they located identification information in the names of approximately 1,000 different people, held in various forms.

The offender had been in continuous custody since 24 February 2015. His wife was also arrested and charged, though the court noted she faced substantially fewer charges and no issue of parity arose in respect of her sentencing.

  • What total sentence and non-parole period was appropriate for eight offences of fraud-related, identity-related, and proceeds of crime offending, taking into account matters on three Forms 1?
  • How should the individual sentences be structured (concurrent, partially cumulative, or fully cumulative) to reflect the totality principle?
  • Whether special circumstances existed to justify a departure from the standard ratio between non-parole period and head sentence.
  • How to deal with a sentence already imposed by the Local Court in respect of a matter that had been listed on a Form 1 but was dealt with separately.

Decision

Judge Norrish QC sentenced the offender on eight principal offences, with additional matters on Forms 1 taken into account. The eight offences comprised five counts of dishonestly obtaining a financial advantage by deception (maximum ten years each), one count of possessing identification information to commit an indictable offence (maximum seven years), one count of possessing a false document to obtain a financial advantage (maximum ten years), and one count of dealing with property with intent it be an instrument of crime (maximum 15 years).

The court characterised the operation as significant, conducted by the offender alone but on a substantial scale. The discovery of identity information relating to approximately 1,000 people, held at the offender's home, underscored the breadth of the enterprise. The court expressly noted the offending was not terrorism-related and did not form part of any broader criminal organisation.

A complication arose because a matter previously listed on Form 1a had been dealt with separately in the Local Court the week prior, resulting in a 12-month sentence. The court took that Local Court sentence into account and subsumed it within the sentence imposed on the relevant principal offence.

The individual sentences were structured as partially concurrent and partially cumulative. The court found special circumstances, resulting in a non-parole period representing a greater proportion of the head sentence than the standard statutory ratio. The total effective sentence was five and a half years imprisonment, with a non-parole period of three and a half years, both dating from 24 February 2015. The offender's eligibility for release to parole was fixed at 23 August 2018, with a balance of sentence of two years remaining thereafter.

Orders Made

  • Five counts of dishonestly obtaining a financial advantage by deception: individual sentences of imprisonment, structured as partially concurrent and partially cumulative, commencing 24 February 2015.
  • Possessing identification information to commit an indictable offence (two counts): two years and three months imprisonment each, commencing 24 May 2016 and expiring 23 August 2018.
  • Possessing a false document to obtain a financial advantage: two years and three months imprisonment, commencing 24 May 2016 and expiring 23 August 2018.
  • Dealing with property with intent it be an instrument of crime (with Form 1c matters taken into account): three years and six months imprisonment, commencing 24 February 2017 and expiring 23 August 2020, with a fixed non-parole period of one and a half years expiring 23 August 2018.
  • Total effective sentence: five and a half years imprisonment with a non-parole period of three and a half years, both dating from 24 February 2015, and expiring 23 August 2018.
  • Eligibility for release to parole: 23 August 2018, subject to the Parole Authority's determination.

Key Takeaways

  • The District Court applied the totality principle by structuring multiple sentences as partially concurrent and partially cumulative, rather than imposing them entirely consecutively or entirely concurrently, to reflect the overall criminality without disproportionate punishment.
  • A finding of special circumstances permitted a non-parole period that represented a lower proportion of the head sentence than the standard ratio under the Crimes (Sentencing Procedure) Act 1999, resulting in a longer balance of sentence on parole.
  • Where a Local Court has separately dealt with a matter that was listed on a Form 1 before the District Court sentencing, the District Court can take that Local Court sentence into account and subsume it within the sentence imposed on the corresponding principal offence.
  • Large-scale identity theft involving identity information for approximately 1,000 individuals, conducted from residential premises by a single offender over approximately two years, warranted a substantial head sentence despite the absence of any connection to organised crime or terrorism.
  • The court's characterisation of the operation rejected the "backyard" framing advanced in mitigation, treating the scale and duration of the scheme as significant aggravating features in arriving at the overall sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 59(2), 192E(1)(b), 192K, 193C, 193D(1), 255(b)(ii)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Births, Deaths and Marriages Registration Act 1995 (NSW)

Cases:
- Attorney General's Application No 1 of 2002 (2002) 56 NSWLR 147
- R v Araya (2005) 155 A Crim R 555
- R v XX (2009) 195 A Crim R 38
- Thangavelau v The Queen [2016] NSWCCA 141
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Yow v The Queen [2010] NSWCCA 251