Citation: R v Khan [2019] NSWDC 185
Court: District Court of New South Wales
Date: 17 April 2019
Judge: Bennett SC DCJ
Background
The offender, Tazeem Ahmed Khan, appeared for sentence on an extensive range of fraud-related offences. The offending began in July 2017 when the offender's cousin left Australia on a family holiday, and the offender proceeded to exploit his cousin's identity and financial details to obtain substantial sums of money and other benefits by deception.
The matter came before the District Court on an ex officio indictment containing 16 counts, together with eight summary offences dealt with under s 166 of the Criminal Procedure Act 1986 and five additional offences on a Form 1 (goods in custody) to be taken into account on sentencing for one of the indictment counts.
The offending spanned multiple categories: dishonestly obtaining property and financial advantages by deception, using false documents, stealing a motor vehicle, threatening a person to prevent disclosure of an indictable offence to police, and possessing and dealing with identity information to commit indictable offences. The offender was also on parole at the time, which had been revoked prior to his arrest.
Legal Issues
- What discount for early guilty pleas applied, given the pleas were originally entered in the Local Court before the matter was elevated by ex officio indictment?
- How should the Form 1 (goods in custody) offences affect the sentence on count 12?
- When should the sentence commence, given the offender had been in pre-sentence custody and had served a period of revoked parole?
- What disqualification periods applied to the driving whilst disqualified offences, given the relevant Road Transport Act 2013 amendments commenced after the offences were committed?
- How should the aggregate sentence reflect the totality principle across 16 indictment counts, eight summary offences, and five Form 1 offences?
Decision
Bennett SC DCJ applied a 25% discount across all matters to reflect guilty pleas entered at the first opportunity, noting that the pleas had originally been entered in the Local Court before the ex officio indictment was brought. The judge held that the benefit of those early pleas had to carry through, even though the matter ultimately proceeded by indictment. In some instances the discount was adjusted marginally beyond 25% to produce clean sentences in years and months, avoiding residual odd days.
On the Form 1 offences (goods in custody), the judge followed the guideline in Attorney General's Application No. 1 of 2002 and increased the sentence on count 12 above what would otherwise have been imposed, to reflect specific deterrence, denunciation, and community retribution for the overall course of misconduct.
Regarding commencement of sentence, the judge declined to start the sentence on the date of arrest or to delay it until the formal expiry of the balance of parole. Drawing on Callaghan [2006] NSWCCA 58, the judge noted the discretion is not automatic and is informed by the circumstances of the individual case. Given the Parole Authority had declined to rescind the revocation, the sentence was ordered to commence on 3 January 2018.
On the driving disqualification periods, a post-judgment Crown addendum confirmed that the amended disqualification provisions under s 205A of the Road Transport Act 2013 (which commenced 28 October 2017) applied to offences committed before that date, by operation of Schedule 4, Part 7, clause 63 of that Act and s 19(2) of the Crimes (Sentencing Procedure) Act 1999. The judge accepted this analysis and made no further orders regarding disqualification, leaving the default 12-month disqualification to commence from the date of conviction.
Orders Made
• No further orders made in relation to the disqualification periods to which the offender is subject.
Key Takeaways
- Where an offender enters guilty pleas in the Local Court and the matter is later elevated by ex officio indictment, the District Court confirmed that the utility of those early pleas must still be recognised at sentence, with the 25% discount flowing through to the indictment proceedings.
- Under the guideline in Attorney General's Application No. 1 of 2002, a sentence on a count to which Form 1 offences are attached must be increased above the standalone sentence to reflect specific deterrence, denunciation, retribution, and the overall course of misconduct.
- A sentencing court retains a genuine discretion as to the commencement date of a sentence where an offender has served pre-sentence custody and a period of revoked parole, and that discretion is not automatically resolved by either the date of arrest or the expiry of the parole balance: Callaghan [2006] NSWCCA 58.
- Amended disqualification periods under s 205A of the Road Transport Act 2013 apply to driving offences committed before those amendments commenced, by operation of clause 63 of Schedule 4, Part 7 of that Act and the lesser-penalty provision in s 19(2) of the Crimes (Sentencing Procedure) Act 1999.
- The totality principle required the judge to structure accumulation and concurrence across a large volume of counts so that the aggregate punishment reflected the full scope of the offending without exceeding what was proportionate to the totality of the criminal conduct.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 154F, 192E(1)(a) and (b), 192J, 192K, 254(b)(ii), 315A(1)
- Criminal Procedure Act 1986 (NSW), ss 166, (ex officio indictment provisions)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 19(2), 37
- Road Transport Act 2013 (NSW), ss 205A, 207A, Schedule 4 Part 7 clause 63
- Confiscation of Proceeds of Crime Act 1989 (NSW)
- Victims Rights and Support Act 2013 (NSW)
Cases:
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No. 1 of 2002 [2002] NSWCCA 518 (Form 1 guideline judgment)
- Callaghan [2006] NSWCCA 58 (discretion as to commencement of sentence following parole revocation)