Citation: R v Islam; R v Ahmed [2019] NSWDC 546
Court: District Court of New South Wales
Date: 15 July 2019
Judge: M L Williams SC DCJ
Background
Two offenders appeared for sentence after pleading guilty to two charges each: participating in a criminal group under s 93T of the Crimes Act 1900, and dealing with identification information under s 192J of the same Act. Both offences carry a maximum penalty of ten years imprisonment with no standard non-parole period.
The offending centred on a credit card skimming operation investigated by the Financial Crimes Squad. The first offender was identified as the ringleader who organised the distribution of skimming devices to taxi drivers, downloaded stolen card data, manufactured cloned cards, and directed associates to make fraudulent ATM withdrawals across multiple jurisdictions including New South Wales, Tasmania, and Fiji. The second offender was a close associate who conducted fraudulent withdrawals, possessed a skimming device in his taxi, and was the only syndicate member entrusted to carry the operation's activities interstate and overseas.
The criminal group included several other participants, some of whom had already been sentenced before this hearing. The court noted that someone beyond those dealt with was likely also involved in overseeing the operation.
Legal Issues
- What sentences were appropriate for each offender, having regard to the objective seriousness of the offending and each person's role within the syndicate?
- How should the court apply parity principles when sentencing co-offenders with differing levels of culpability?
- Did the double counting (De Simoni) principle apply to prevent the court from treating the second offence as part of a planned or organised criminal activity, given that planning was already the substance of the principal count?
- Should special circumstances be found, warranting an adjustment to the standard ratio between non-parole period and total sentence?
- What weight should be given to mitigating factors including guilty pleas, remorse, drug addiction, and mental health considerations?
Decision
The court accepted that a 25% discount on sentence was appropriate for each offender's early guilty plea. Full-time custody was not in dispute for either offender.
For the ringleader, the court found the offending fell in the mid-range of objective seriousness. He had managed a complex, prolonged, multi-jurisdictional fraud operation, stored over 550 stolen credit card details on his personal laptop, and derived a significant financial gain. Aggravating factors included his prior convictions for dishonesty offences, that he was on conditional liberty (bail) at the time, that the offending was committed for financial gain, and that the loss caused was substantial. The court accepted it would constitute double counting to treat the identification information charge as part of a planned or organised criminal activity, since planning was already the essence of the principal offence. The court also noted the offending satisfied s 93T(1A) rather than the more serious s 93T(4A), as the evidence did not establish the organised and ongoing elements required for the higher offence.
For the associate, the court characterised the offending as between the low to mid-range of objective seriousness. His role was more serious than other co-offenders but clearly junior to the ringleader. He was the only syndicate member trusted to take activities outside New South Wales. Aggravating factors included prior convictions, being on bail at the time, offending for financial gain, multiple victims, a series of criminal acts, and committing one offence in company. Mitigating factors for both offenders included their guilty pleas, expressions of remorse, drug addiction histories, mental health issues, and positive conduct while in custody.
The court found special circumstances in both cases, justifying a departure from the standard non-parole period ratio, having regard to the offenders' rehabilitation needs, substance abuse histories, and mental health treatment requirements. A modest degree of accumulation between the indicative sentences was applied to reflect the separate criminality involved in each charge.
Orders Made
Mustafa Ahmed (also known as Liton Sheikh):
- Convicted of each offence
- Aggregate sentence of imprisonment of 2 years and 6 months, commencing 22 June 2018
- Non-parole period of 1 year and 7 months, expiring 21 January 2020
- Indicative sentences: Count 002 (27 months), Count 033 (11 months)
- Special circumstances found
- Prior s 9 bond (matter 2017/27683) called up; no further action taken
Note: The judgment indicates that orders for Tariqul Islam (the ringleader) were also made, with his sentence commencing 18 November 2018, but the full indicative sentence figures for Islam were omitted from the portion of the judgment provided.
Key Takeaways
- The District Court confirmed that treating the identification information offence as part of a "planned or organised criminal activity" would constitute impermissible double counting where planning was already the substance of the principal criminal group participation charge.
- Parity principles required the court to assess each co-offender's sentence by reference to the objective and subjective circumstances of all co-offenders, with the ringleader receiving a more substantial sentence reflecting his directing role in the syndicate.
- A finding of special circumstances was available where offenders had documented substance abuse histories, mental health needs, and rehabilitation prospects that warranted a longer parole period to support their reintegration.
- Under s 93T of the Crimes Act 1900, the distinction between the s 93T(1A) offence (maximum 10 years) and the more serious s 93T(4A) offence (maximum 15 years) turned on whether the evidence established the organised and ongoing elements required by the higher provision.
- An early guilty plea attracted a 25% discount on sentence, which was common ground between the parties and applied consistently across both offenders.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 93T, 93T(1A), 93T(4A), 192J
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A, s 9
Cases:
- Kemp v The Queen [2012] NSWCCA 281 (parity principles in co-offender sentencing)