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District Court 6 December 2019

R v Rahman

[2019] NSWDC 868

Fraud & dishonesty

Citation: R v Rahman [2019] NSWDC 868
Court: District Court of New South Wales
Date: 6 December 2019
Judge: M L Williams SC DCJ

Background

The offender, a taxi driver aged 64, was sentenced after pleading guilty to one count of dealing with identification information with the intention of facilitating an indictable offence, contrary to s 192J of the Crimes Act 1900. The offence carries a maximum penalty of ten years' imprisonment with no standard non-parole period.

The charge arose from the offender's participation in an organised credit card skimming syndicate operating across New South Wales in September 2017. Police strike force investigations revealed a sophisticated scheme in which skimming devices were installed in taxi EFTPOS terminals. When passengers paid fares, their card details were captured without their knowledge, then cloned onto blank gift cards and used by runners to make fraudulent ATM withdrawals.

The offender's role was to install a compromised EFTPOS terminal in his taxi and collect card numbers from passengers. The ringleader, Islam, paid the offender $110 per card number captured. Over the relevant period, the offender received approximately $4,400 to $4,500 for his participation. The scheme involved multiple victims and was coordinated through recorded conversations between Islam and the offender.

  • What sentence was appropriate for the offender's role in the syndicate, having regard to the objective seriousness of the offence?
  • How should the court weigh the applicable aggravating factors, including financial gain, multiple victims, and planned criminal activity?
  • What weight should be given to the offender's subjective circumstances, including age, health, gambling addiction, rehabilitation, and prospects of re-offending?
  • How should parity be maintained with sentences imposed on co-offenders, particularly the ringleader Islam, the runner Alam, and other participants?
  • Was an Intensive Correction Order (ICO) an appropriate means of serving the sentence?

Decision

The court identified several aggravating factors under the Crimes (Sentencing Procedure) Act 1999: the offending was motivated by financial gain, it involved multiple victims (the passengers whose card details were skimmed), and it formed part of planned and organised criminal activity. The offender was a knowing participant in a structured syndicate and maintained a commercial arrangement with the ringleader, complete with invoicing for card numbers collected.

The court acknowledged significant mitigating factors. The offender entered a guilty plea at an early stage, attracting a 25 per cent discount for utilitarian value. His prospects of rehabilitation were assessed as favourable, particularly following documented successful treatment for a gambling addiction, which the court accepted was connected to his involvement in the scheme. His prospects of re-offending were assessed as very low.

The court treated the subjective evidence with some caution. The offender had not given evidence himself, and his admissions to Community Corrections focused on the impact of the offending on himself and his family rather than on the victims. His refusal to allow verification of his family details also weighed against him. Despite these reservations, the court found sufficient consistency across medical and psychological reports to proceed on the basis of the subjective case presented.

On parity, the court considered the sentences imposed on Islam (the ringleader, sentenced to three years and ten months), Ahmed (a junior in the syndicate, sentenced to two years and six months), and the runners Rabbi and Alam. The court accepted that the offender's role was meaningfully different from those of the ringleader and the runners, and that his relatively brief period of offending and stronger subjective case justified a lighter outcome. The court was ultimately persuaded that imprisonment was necessary but that it should be served by way of an ICO.

Orders Made

  • The offender was convicted of the offence.
  • A sentence of 12 months' imprisonment was imposed.
  • Pursuant to s 7(1) of the Crimes (Sentencing Procedure) Act 1999, the sentence was directed to be served by way of an Intensive Corrections Order, commencing 6 December 2019.
  • The offender was directed to report to the Officer in Charge at the Liverpool office of Community Corrective Services by 5pm on Friday, 13 December 2019.
  • Standard conditions applied: no further offending; supervision and compliance with all reasonable directions of Community Corrective Services for the duration of the order.
  • Additional condition: undertake psychological treatment and rehabilitation as outlined in the report of Michael Zhang dated 26 November 2019.

Key Takeaways

  • A taxi driver who knowingly participated in a credit card skimming syndicate by operating a compromised EFTPOS terminal received a 12-month ICO, reflecting his limited but deliberate role, early guilty plea, and favourable rehabilitation prospects.
  • Parity across co-offenders remained a central consideration: sentences ranged from five months (runner with no prior record) to three years and ten months (ringleader), and the court calibrated the offender's sentence by reference to his position within that range.
  • Where a defendant's subjective evidence is untested and unaffirmed, the court may still act on it where there is sufficient consistency between personal history and independent clinical and psychological reports, though it will apply appropriate caution.
  • Financial gain, multiple victims, and participation in planned criminal activity all operated as statutory aggravating factors, even where the offender occupied a relatively junior role in the syndicate.
  • An ICO remains available as an alternative to full-time custody even where a court is satisfied that a term of imprisonment is the only appropriate penalty, provided the statutory criteria are met.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192J, 192E, 93T, 556A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1)

Cases:
- Johnston v R [2017] NSWCCA 5
- Kemp v R [2012] NSWCCA 281
- Lee v R [2019] NSWCCA 15
- R v Blanco (1999) 106 A Crim R 303
- R v Islam; R v Ahmed [2019] NSWDC 546
- R v Yeoh; R v Mohammed; R v Zhang; R v Lee [2018] NSWDC 201
- Thangavelautham v R [2016] NSWCCA 141