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Court of Criminal Appeal 21 October 2019

Stroud v R

[2019] NSWCCA 249

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL 91 FRAUD RELATED OFFENCES WHETHER DISPARITY ESTABLISHED

Citation: Stroud v R [2019] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 21 October 2019
Judge(s): Hoeben CJ at CL; Brereton JA; Fullerton J

Background

The appellant was a member of a fraud syndicate engaged in large-scale "Host Card Emulation" fraud, which involved fraudulently linking mobile phones to credit cards and using them to make contactless "tap and go" purchases. The syndicate impersonated medical staff and employees of insurance and telecommunications companies to obtain victims' identifying information, enabling members to compromise bank accounts and credit cards. In total, approximately 87 victims were identified and losses reached around $1.5 million.

The appellant pleaded guilty to 91 offences, including 57 counts of dishonestly obtaining a financial advantage by deception, 27 counts of unauthorised computer access, charges of dealing with proceeds of crime, possessing identity information, dealing with identity information, and possessing unauthorised firearms. The District Court imposed an aggregate sentence of 7 years and 6 months imprisonment with a non-parole period of 4 years and 6 months. The appellant received a 25 per cent discount for his guilty plea.

The sole ground of appeal was that the sentence gave rise to a justifiable sense of grievance when compared to the sentence received by a co-offender, Elizabeth Goh, who had been sentenced to an aggregate of 4 years and 3 months imprisonment with a non-parole period of 2 years and 6 months. The appellant argued that the parity principle had been breached.

  • Whether a justifiable sense of grievance arose from the disparity between the appellant's aggregate sentence and that imposed on his co-offender, Ms Goh.
  • Whether there was sufficient overlap in the criminality of the appellant's offences to justify a finding that the sentencing judge erred.

Decision

The Court of Criminal Appeal, in reasons delivered by Hoeben CJ at CL (with Brereton JA and Fullerton J agreeing), rejected the disparity ground and dismissed the appeal.

The Court accepted that the parity principle is not confined to co-offenders charged with identical offences. It extends to persons engaged in the same criminal enterprise even where different charges were laid against them. However, the Court found that the similarities between the appellant's offending and Ms Goh's offending were, in reality, too limited to engage the principle in this case.

The Court acknowledged some overlap between the 57 dishonest obtaining charges and the 27 unauthorised computer access charges, but held that each offence retained its own distinct component of criminality. Critically, the appellant was by far the most active participant in the syndicate: he was the principal offender in each of the 57 dishonest obtaining charges, the total value of his fraudulent transactions was approximately $1.1 million across at least 56 victims, and his conduct was characterised as a "brazen and systematic fleecing of the community" involving planning and organisation.

Given the sheer volume of offending, the number of victims, the amounts involved, and the appellant's dominant operational role within the syndicate, the sentencing judge's assessment of seriousness was well open to him. No justifiable sense of grievance was established.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • The parity principle applies to co-offenders engaged in the same criminal enterprise, even where different charges were laid against each of them, as confirmed by the Court of Criminal Appeal following Green v The Queen and R v MAK.
  • Where co-offenders received markedly different sentences, a justifiable sense of grievance will not automatically arise simply because they participated in the same syndicate. The actual nature, extent, and volume of each offender's criminality must be assessed.
  • A significant disparity in the number of charges, the number of victims, and the total value of the fraud can be sufficient to distinguish co-offenders for sentencing purposes, even where there is some factual overlap between individual offences.
  • Some overlap in the criminality underlying related offences does not necessarily require a court to treat those offences as one and the same for sentencing purposes, provided each retains a distinct component of wrongdoing.
  • In dismissing the appeal, the Court reinforced that the role of an active, operational participant who personally committed the majority of fraudulent transactions may warrant substantially greater punishment than that imposed on a less active co-offender, even in the same criminal enterprise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 191E(1)(b), 192E(1)(b), 192J, 192K, 193B(2), 308C
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Firearms Act 1996 (NSW), s 7A(1)

Cases:
- Grabovac v R [2018] NSWCCA 100
- Green v The Queen; Quinn v The Queen [2011] HCA 49; 244 CLR 462
- R v MAK [2006] NSWCCA 381; 167 A Crim R 159