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District Court 28 June 2018

R v Yeoh; R v Mohammed; R v Zhang and R v Lee.

[2018] NSWDC 201

Fraud & dishonesty
CRIMINAL LAW SENTENCE IDENTITY FRAUD AGGRAVATING FACTORS MITIGATING FACTORS PLANNED OR ORGANISED CRIMINAL ACTIVITY

Citation: R v Yeoh; R v Mohammed; R v Zhang and R v Lee [2018] NSWDC 201
Court: District Court of New South Wales
Date: 28 June 2018
Judge: Scotting DCJ

Background

Between 2015 and their arrests in December 2015, four offenders operated as part of a sophisticated, multi-layered criminal network manufacturing false NSW drivers' licences and Medicare cards. The scheme involved fabricating fictitious identities, complete with photographs of real people, and using those identities to obtain loans from major Australian banks. The funds advanced were not recovered.

Each offender occupied a distinct role in the chain. One offender placed orders for false documents, another relayed those orders through intermediaries, a third passed them on to the document manufacturer, and the fourth physically produced the false cards at his home using specialised printing equipment. Police uncovered the network through telephone intercept warrants and physical surveillance.

All four offenders pleaded guilty in the District Court. The sentencing proceedings required the court to assess the objective seriousness of each role, weigh mitigating and aggravating factors specific to each offender, and ensure parity across sentences given the co-offenders' different levels of culpability.

  • What sentence was appropriate for each offender, having regard to the objective seriousness of their individual role in the scheme?
  • How should mitigating factors (guilty pleas, no prior criminal history, cooperation with police, remorse, rehabilitation prospects) be weighed against aggravating factors (planned criminal activity, financial gain to the offenders)?
  • Was parity maintained across the sentences of co-offenders who played different roles?
  • Did special circumstances exist for any offender, justifying a departure from the standard non-parole to head sentence ratio?
  • Should an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 be imposed for any offender facing multiple charges?

Decision

Scotting DCJ sentenced each offender individually after assessing their role, culpability, personal circumstances, and the applicable sentencing principles. The court found that the offending was serious, planned, and motivated by financial gain, with the scheme causing real losses to banks that were not recovered. General and specific deterrence were significant considerations across all four sentences.

The court recognised a number of mitigating factors common to all offenders: each had no prior criminal record, each pleaded guilty (attracting a discount on sentence), and each demonstrated prospects of rehabilitation. Where offenders had cooperated with police or provided assistance to law enforcement, the court gave additional weight to those matters.

The court found special circumstances warranting adjustment of the parole ratio for several offenders. Relevant factors included that imprisonment represented a first custodial experience, good rehabilitation prospects, and in one case, a diagnosed adjustment disorder combined with separation from a child with special needs. Parity between co-offenders was a guiding consideration throughout, and the court was careful to calibrate each sentence to the individual's role rather than applying a uniform outcome.

An aggregate sentence was imposed for the offender facing the greatest number of charges (Mr Lee), reflecting the totality principle and his position as the document manufacturer at the centre of the physical production of the fraudulent cards.

Orders Made

Mr Yeoh:
- Convicted on two counts under s 192J Crimes Act 1900 and Form 1 matters taken into account
- Section 93T offence: fixed term of 7 months from 21 March 2018, expiring 20 October 2018
- Section 192J offence: minimum term of 2 years from 21 June 2018 (expiring 20 June 2020), additional term of 2 years (expiring 20 June 2022)
- Eligible for parole: 20 June 2020

Mr Mohammed:
- Convicted on one count under s 192J and one count under s 93T, with Form 1 matter
- Specific sentence terms not fully reproduced in the provided text

Ms Zhang:
- Convicted; special circumstances found
- Section 93T offence: fixed term of 7 months from 28 June 2018, expiring 27 January 2019
- Section 192J offence: minimum term of 15 months from 29 September 2018 (expiring 27 December 2019), additional term of 15 months (expiring 27 March 2021)
- Eligible for parole: 28 December 2019

Mr Lee:
- Convicted; special circumstances found
- Aggregate sentence of 4 years imprisonment with a non-parole period of 18 months
- Sentence from 28 June 2018; non-parole period expiring 27 December 2019; head sentence expiring 27 June 2022
- Eligible for parole: 27 December 2019

Key Takeaways

  • The District Court treated the planned and organised nature of the identity fraud scheme, and the financial gain it generated, as significant aggravating factors under the Crimes (Sentencing Procedure) Act 1999, despite the absence of prior criminal records across all four offenders.

  • Parity between co-offenders was a central organising principle of the sentencing exercise, requiring the court to calibrate each individual sentence to reflect relative culpability rather than simply matching outcomes across the group.

  • Where an offender occupied a more central operational role, such as the physical manufacture of false documents, greater weight attached to general deterrence, and the resulting sentence was higher notwithstanding common mitigating factors.

  • Special circumstances were found for multiple offenders on the basis of first-time custody, strong rehabilitation prospects, and personal hardship, each of which justified a longer additional (parole) term relative to the minimum term.

  • An aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999 was appropriate where an offender faced several discrete charges arising from the same scheme, allowing the court to apply the totality principle and avoid a crushing combined sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1), 192J, 193C, 256(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)

Cases:
- Dipangkear v R [2010] NSWCCA 156
- Hoskins v R [2016] NSWCCA 157
- R v Borkowski (2009) 195 A Crim R 1
- R v Houghton [2000] NSWCCA 62
- R v Phelan (1993) 66 A Crim R 446
- R v Thomson & Houlton (2000) 49 NSWLR 383