Citation: R v Baydoun [2020] NSWDC 669
Court: District Court of New South Wales
Date: 4 November 2020
Judge: Hatzistergos DCJ
Background
The offender pleaded guilty to a single rolled-up charge of dishonestly obtaining a financial advantage by deception, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The offending spanned approximately seven months, from October 2017 to May 2018, and involved 30 separate victims across various locations in New South Wales.
The offender's method was consistent throughout: he used victims' phone numbers to impersonate them and pass security checks with banks and telecommunications companies. This allowed him to access online banking accounts, activate credit cards, and divert funds. Money was funnelled into online betting accounts, cryptocurrency websites, and retail purchases. The total amount obtained was $367,035.91.
The offender was arrested in May 2018 following simultaneous search warrants executed by Strike Force Ambleside. He initially denied the allegations in a recorded interview but later pleaded guilty before the District Court, attracting a 25% discount on sentence in line with the principles in R v Thomson and Houlton (2000) 49 NSWLR 383.
Legal Issues
- What was the appropriate objective seriousness of the offending?
- Whether the offender's moral culpability was reduced by his history of substance abuse and gambling addiction, and if so to what degree
- Whether special circumstances existed to justify a longer-than-usual parole period
- What sentence best balanced the competing purposes of punishment, deterrence, denunciation, and rehabilitation under s 3A of the Crimes (Sentencing Procedure) Act 1999 (NSW)
- Whether referral to the Compulsory Drug Treatment Program was appropriate
Decision
Hatzistergos DCJ assessed the offending as sitting at about the mid-range of objective seriousness. The scheme involved significant planning, sophistication, and organisation, with the offender operating as part of a group and targeting 30 victims over roughly seven months. The total financial loss of over $367,000 and the harm caused to victims were prominent features of the sentencing exercise.
The judge accepted that the offender's moral culpability was somewhat reduced by his long-standing histories of substance abuse and gambling addiction, which had contributed to the offending. However, His Honour was clear that this reduction did not displace the need for denunciation and both general and specific deterrence. The fact that the offending was committed while the offender was on conditional liberty was treated as an aggravating factor under s 21A of the Crimes (Sentencing Procedure) Act 1999 (NSW).
The judge found that the offender held genuine remorse and was motivated to address his underlying problems. Rehabilitation prospects were described as guarded but hopeful, and the risk of re-offending was assessed as medium. Given these rehabilitation needs and the offender's youth and health issues, the court found special circumstances existed, warranting an extended parole period beyond the statutory norm under s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The court also took into account, in a general way, the impact of the COVID-19 pandemic on the conditions of imprisonment.
The court credited the offender with 3 months and 2 days of pre-sentence custody served between May and August 2018, and backdated the sentence to 21 July 2020 to account for a period of bail refusal. The 25% guilty plea discount was applied consistently with R v Thomson and Houlton and R v Borkowski (2009) 195 A Crim R 1.
Orders Made
- The offender was convicted of one count of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW)
- Non-parole period of 2 years and 3 months imprisonment, commencing 21 July 2020 and expiring 20 October 2022
- Additional (parole) term of 1 year and 3 months, commencing 21 October 2022 and expiring 20 January 2024
- Head sentence of 3 years and 6 months; earliest release date 20 October 2022
- Referral to the Drug Court to assess eligibility for the Compulsory Drug Treatment Program
Key Takeaways
- A rolled-up charge encompassing 30 victims and more than $367,000 in losses over seven months was placed at about the mid-range of objective seriousness, reflecting the degree of planning and organisation involved.
- Histories of substance abuse and gambling addiction can reduce an offender's moral culpability in fraud matters, but the District Court confirmed this reduction does not eliminate the sentencing purposes of denunciation and general and specific deterrence.
- Where an offender's rehabilitation needs are significant and genuine, a finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 (NSW) may justify an extended parole period beyond the one-third default.
- Under s 192E(1)(b) of the Crimes Act 1900 (NSW), a maximum of 10 years imprisonment applies, with no standard non-parole period, leaving the sentencing court with broad discretion to calibrate the sentence to the individual circumstances.
- Referral to the Compulsory Drug Treatment Program under Part 4A of the Crimes (Administration of Sentences) Act 1999 (NSW) was ordered alongside the custodial sentence, reflecting the court's recognition that addressing addiction was in the community interest.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Administration of Sentences) Act 1999 (NSW), Part 4A; s 276
- Crimes (Administration of Sentences) Regulation 2014 (NSW), Part 12
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 21A, 44
- Drug Courts Act 1998 (NSW), s 18B
Cases
- R v Borkowski (2009) 195 A Crim R 1; [2009] NSWCCA 102
- R v Fiordelli [2020] NSWDC 154
- R v Thomson and Houlton (2000) 49 NSWLR 383