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Court of Criminal Appeal 8 July 2020

Kabir v R

[2020] NSWCCA 139

Fraud & dishonesty
APPEAL SENTENCE APPEAL WHETHER DENIAL OF PROCEDURAL FAIRNESS

Citation: Kabir v R [2020] NSWCCA 139
Court: Court of Criminal Appeal, NSW
Date: 8 July 2020
Judges: Hoeben CJ at CL, Harrison J, Wilson J

Background

The appellant was a registered tax agent and franchisee of a national accounting network. Between 2012 and 2014, he used his access to client information and the ATO's tax agent portal to lodge false income tax returns in the names of clients and other taxpayers, redirecting refunds into bank accounts he controlled. When police executed a search warrant at his home, he was observed throwing a package from a window containing dozens of bank cards, prepaid VISA debit cards, and SIM cards linked to over 100 bank accounts.

The appellant pleaded guilty in the District Court to one count of dealing with proceeds of crime valued at $50,000 or more and one count of obtaining a financial advantage by deception from a Commonwealth entity. He also admitted a further offence of dishonestly causing a risk of loss to a Commonwealth entity, which the sentencing judge was asked to take into account under s 16BA of the Crimes Act 1914 (Cth). The sentencing judge imposed an aggregate sentence of five years imprisonment with a non-parole period of three years.

The appellant sought leave to appeal on five grounds, arguing procedural and substantive errors in the sentencing process.

  • Whether the sentencing judge failed to comply with the mandatory procedure in s 16BA of the Crimes Act 1914 (Cth) before taking the additional offence into account.
  • Whether the statement from a man named Benigno Lee was properly admitted as a victim impact statement, and whether Mr Lee was properly considered a victim of the offending.
  • Whether the sentencing judge erred by failing to take hardship to the appellant's family into account.
  • Whether the sentencing judge denied procedural fairness by rejecting unchallenged evidence of the appellant's background and good character.
  • Whether the sentencing judge erred in finding the appellant was not genuinely remorseful, given statements from his wife and friends.

Decision

Ground 1: Section 16BA procedure. The Court examined whether s 16BA requires a sentencing judge to personally ask the offender, in open court, whether they wish a listed offence to be taken into account. The Court found that the transcript of the sentencing proceedings was ambiguous as to whether this question was formally put. However, given the procedural history, the fact that the appellant himself had signed the schedule document admitting the offence, and that he was represented by experienced counsel, the Court was not persuaded that any procedural error had occurred or that the appellant had suffered any practical injustice.

Ground 2: Mr Lee as a victim. The sentencing judge had regard to a statement from Mr Lee, who had allowed his name to be used to open bank accounts at the appellant's request, and into whose accounts fraudulent tax refunds were paid. The appellant argued Mr Lee was not a "victim" for sentencing purposes. The Court rejected this, holding that the term "victim" is to be construed broadly in the sentencing context. Mr Lee suffered harm to his reputation and standing as a result of the offending, which was sufficient.

Ground 3: Family hardship. The Court found the sentencing judge had in fact taken family hardship into account, referencing the appellant's role as a father and husband and the effect of imprisonment on his family. No error was established.

Ground 4: Good character and procedural fairness. The Court found no error in the sentencing judge's treatment of character evidence. The judge was entitled to approach character references and supporting material with appropriate circumspection, particularly where the appellant chose not to give evidence himself. No denial of procedural fairness was demonstrated.

Ground 5: Remorse. The sentencing judge declined to find genuine remorse, noting that the only evidence of remorse came through hearsay channels, principally a psychologist's report, and that a pre-sentence report recorded minimisation of the offending and self-focused concern. The appellant did not give evidence at the sentencing hearing. The Court found the sentencing judge's conclusions were entirely open and disclosed no error.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that the term "victim" in the sentencing context is to be construed broadly, and does not require direct financial loss. Reputational and related harm resulting from an offence can suffice to make a person a victim for the purposes of a victim impact statement.
  • Under s 16BA of the Crimes Act 1914 (Cth), the procedure for taking additional offences into account requires careful compliance, but the Court assessed whether any procedural shortcoming caused actual injustice, particularly where the offender was legally represented and had signed the relevant schedule document.
  • A sentencing judge is not obliged to accept unchallenged hearsay expressions of remorse, especially where the offender declines to give evidence at the sentencing hearing and other material suggests minimisation of the conduct.
  • No error was established in the District Court's approach to family hardship as a mitigating factor, given the sentencing judge had acknowledged it in reasons.
  • In dismissing all five grounds, the Court of Criminal Appeal reinforced that appellate interference with a sentence requires identifiable error of the kind described in House v The King, and that disagreement with the weight given to mitigating factors does not itself constitute such error.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16, 16AAA, 16A(2), 16BA(1), (2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Code 1995 (Cth), ss 134.2(1), 135.1(5), 400.5(1)

Key Cases:
- House v The King (1936) 55 CLR 499 (standard for appellate interference with sentence)
- HT v The Queen [2019] HCA 40 (victim impact statements and meaning of victim)
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- Brown v R (2018) 99 NSWLR 151
- LS v R [2020] NSWCCA 27
- Jung v R [2017] NSWCCA 24
- Purves v R [2019] NSWCCA 227
- R v Calcutt [2012] NSWCCA 40
- Newman v R [2018] NSWCCA 208
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146