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Court of Criminal Appeal 21 September 2020

Islam v R

[2020] NSWCCA 236

Fraud & dishonesty
SENTENCE PLEAS OF GUILTY SINGLE GROUND OF APPEAL ADVANCED RELEVANCE OF EARLIER SENTENCE PRINCIPLE OF TOTALITY

Citation: Islam v R [2020] NSWCCA 236
Court: NSW Court of Criminal Appeal
Date: 21 September 2020
Judges: Ward CJ in Eq; Wilson J (with reasons); Ierace J

Background

The appellant was the ringleader of a taxi driver syndicate that used concealed skimming devices disguised as EFTPOS terminals to steal credit card data from passengers. Between late August 2017 and January 2018, he recruited and directed co-offenders, cloned hundreds of stolen cards, and coordinated withdrawals from ATMs across Sydney. Police surveillance, search warrants, and forensic examination of a seized laptop established that he had stolen and cloned credit card data over approximately three years, fraudulently obtaining between $250,000 and $300,000.

He pleaded guilty to two offences in the District Court: participating in a criminal group by directing its activities (contrary to s 93T(1A) of the Crimes Act 1900 (NSW)), and dealing with identification information for over 550 persons intending to commit fraud (contrary to s 192J of the same Act). Both offences carry a maximum of 10 years imprisonment.

Critically, the appellant was already serving a sentence at the time of the July 2019 proceedings. In April 2018, he had been sentenced to an aggregate 2-year term (NPP 15 months) for related earlier offending in 2016, with a finding of special circumstances reducing the NPP from what would ordinarily have been 18 months. The new sentence was partially accumulated on that earlier sentence. The appellant's single ground of appeal was that the special circumstances finding made by the sentencing judge in the 2019 proceedings was not properly reflected in the sentence as structured.

  • Whether the sentencing judge's finding of special circumstances was adequately reflected in the non-parole period of the sentence imposed in July 2019, when that sentence was considered both in isolation and in combination with the earlier sentence the appellant was serving.
  • Whether the principle of totality required a greater degree of concurrence between the two sentences than was allowed.
  • How the obligation to give effect to a special circumstances finding operates when a new sentence is partially accumulated on an existing sentence.

Decision

Wilson J (with whom Ward CJ in Eq and Ierace J agreed) granted leave to appeal but dismissed the appeal, finding no error in the structure of the sentence imposed by the sentencing judge.

The sentencing judge had imposed a total sentence of 4 years 6 months with an NPP of 3 years 3 months for the 2019 matters, partially accumulated on the earlier sentence. The appellant argued that, when the two sentences were considered together, the parole period was disproportionately short and did not give practical effect to the special circumstances finding. Wilson J rejected this argument. The court noted that the sentencing judge was not required to approach the matter by treating the two sentences as a single undifferentiated whole, particularly because the 2016 and 2017 to 2018 offences, though broadly similar, did not constitute a single course of criminality.

The court found that the degree of concurrence allowed was adequate in the circumstances. Even taking both sentences together, the appellant would have approximately 13 months on parole during which he could access counselling and supervision, which the sentencing court had identified as necessary. Wilson J applied the principle from Caristo v R that the focus should not fall solely on the percentage relationship between the non-parole and parole periods: the actual duration of those periods matters equally. A period of 13 months was sufficient to serve the rehabilitative purposes underlying the special circumstances finding, notwithstanding that the appellant's likely deportation on release made full use of that period somewhat artificial.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances does not automatically require a sentencing court to reduce the non-parole period by a fixed proportion when a new sentence is partially accumulated on an existing one. The actual length of the resulting parole period is equally, and probably more, important than the percentage it represents of the total term.
  • Where two sets of offences are similar in character but separated by distinct criminal choices (including reoffending on bail), they do not constitute a single course of criminality requiring concurrent sentences. Partial accumulation, rather than full concurrence, may be appropriate.
  • The Court of Criminal Appeal confirmed the principle from Caristo v R [2011] NSWCCA 7 that courts assessing whether a special circumstances finding has been given effect should examine the actual parole period in real terms, not merely its ratio to the head sentence.
  • In dismissing the appeal, the court accepted that a 13-month parole period was sufficient to provide the counselling and supervision contemplated by the special circumstances finding, even accounting for the appellant's anticipated deportation on release.
  • Under the totality principle, a sentencing court is entitled to treat the period of concurrence between accumulated sentences as adequate where the offences, though related in character, arose from distinct criminal enterprises separated in time and initiated during a period of conditional liberty.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93T(1A), 192E, 192J
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 44(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Calhoun (a pseudonym) v R [2018] NSWCCA 150
- Caristo v R [2011] NSWCCA 7
- Hardey v R [2019] NSWCCA 310
- Johnson v The Queen (2004) 205 ALR 346; [2004] HCA 15
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Islam; R v Ahmed [2019] NSWDC 546
- R v Rossi (1988) 142 LSJS 451
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- Sonter v R [2018] NSWCCA 228
- Stoeski v R [2014] NSWCCA 161
- Tuivaga v R [2015] NSWCCA 145