Citation: R v Lahood [2019] NSWDC 646
Court: District Court of New South Wales
Date: 7 August 2019
Judge: Norrish QC DCJ
Background
The offender, a key member of a criminal group, participated alongside his principal co-offender and others in a sophisticated, two-year identity fraud scheme. The group stole the identities of numerous individuals and used those stolen identities to open bank accounts, apply for credit cards, and take out personal loans in victims' names. Police obtained statements from multiple victims confirming they had no knowledge of accounts opened or transactions conducted in their names.
Over the period from September 2016 to September 2018, 846 fraudulent accounts were opened at a single bank alone. The total financial advantage dishonestly obtained across all offending was approximately $2,013,927. The offender and his co-offender were identified by the Crown as the principals of the scheme.
The offender faced multiple charges across a range of offence types: dishonestly obtaining a financial advantage by deception (in respect of bank accounts, credit cards, personal loans, and cash withdrawals), possessing equipment to make identification documents, possessing and dealing with identification information, knowingly dealing with proceeds of crime, and participating in a criminal group. Several further charges were taken into account on Form 1.
Legal Issues
- How to measure the totality of the offender's criminality across numerous overlapping charges spanning the same two-year period
- How to apply the principle against double punishment where multiple charges captured different aspects of the same underlying conduct
- What weight to give to the aggravating factor of offending while on conditional liberty (section 9 bonds)
- How to treat the offender's background, drug dependency, and completion of the Drug Court program as mitigating factors
- Whether special circumstances existed to justify adjusting the standard ratio between the non-parole period and the total sentence
Decision
Norrish QC DCJ undertook a careful analysis of the overlapping financial figures. The $1.391 million (credit cards), $496,867 (personal loans), and $45,939 (cash withdrawals and purchases) relating to sequences 5, 6, and 7 were all incorporated within the overarching $2,013,927 figure captured by sequence 4. His Honour's approach to totality required accounting for this overlap so as not to punish the offender multiple times for the same loss.
The offending was characterised as sophisticated and sustained. The group stole mail from letterboxes to harvest personal information and used a computer program capable of generating false documents, including passports, utility bills, and driver's licences. The offender was identified as a principal, not a peripheral participant. His Honour also noted the serious aggravating circumstance that the bulk of the offending was committed while the offender was subject to section 9 bonds imposed in July 2016, reflecting offending on conditional liberty.
In mitigation, His Honour accepted the offender's pleas of guilty, entitling him to a 25% discount on every sentence imposed. The offender had previously completed a Drug Court program, and his drug use was linked to pain relief and anxiety as well as lifestyle support. However, the current offending commenced only approximately three months after completing that program, which significantly limited the weight available to that factor. The possibility of a conduct disorder or ADHD was also noted, though its precise mitigating weight was not overstated. His Honour found special circumstances, justifying an adjustment to the standard non-parole period ratio.
The court structured the sentences with careful attention to concurrency and accumulation across the multiple charges, applying the totality principle so that the aggregate sentence reflected the overall criminality without crushing the offender's prospects of rehabilitation. The risk of re-offending was assessed as medium to high.
Orders Made
- Total sentence of seven years imprisonment, commencing 12 September 2018 and expiring 11 September 2025
- Non-parole period of four years and six months, expiring 11 March 2023 (the judgment records two slightly inconsistent dates; 11 March 2023 was stated orally as the parole eligibility date)
- Leave granted to the Crown to bring confiscation proceedings at a later date, to be mentioned before His Honour in September 2019
Key Takeaways
- The District Court applied the totality principle rigorously where multiple charges captured overlapping conduct and overlapping financial figures, ensuring the aggregate sentence measured the overall criminality rather than punishing the same loss repeatedly.
- Offending while subject to conditional liberty (section 9 bonds) is a statutory aggravating factor that the court treated as a significant consideration in arriving at the head sentences.
- Completion of a rehabilitation program such as the Drug Court carries reduced mitigating weight when serious offending recommences within three months of that program's completion.
- A 25% utilitarian discount for guilty pleas applied uniformly across all charges, consistent with the timing of the pleas and the committal-for-sentence procedure.
- Where special circumstances are found, the court may depart from the standard relationship between the non-parole period and the total sentence, here producing a non-parole period of four years and six months against a head sentence of seven years.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 93T, 192E(1)(b), 192J, 192K, 192L, 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): ss 9, 53A
Cases
- Johnson v R (2004) 78 ALJR 616
- Mill v R (1988) 166 CLR 59
- Pearce v R [1998] 194 CLR 610
- R v Hammoud (2000) 118 A Crim R 66
- R v Holder [1983] 3 NSWLR 245
- R v MMK (2006) 164 A Crim R 481
- R v XX (2009) 195 A Crim R 38