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Court of Criminal Appeal 18 June 2021

Lou v R

[2021] NSWCCA 120

Fraud & dishonesty
CRIMINAL LAW SENTENCING CREDIT CARD FRAUD AND IDENTITY THEFT SKIMMING DEVICES PROCEEDS OF CRIME GRAVE CRIMINALITY

Citation: Lou v R [2021] NSWCCA 120
Court: NSW Court of Criminal Appeal
Date: 18 June 2021
Judge(s): Hoeben CJ at CL, Campbell J, Hamill J

Background

The appellant pleaded guilty to 23 offences and had additional offences taken into account, all arising from a sophisticated credit card skimming and identity fraud operation. She and her husband ran a convenience store in Rozelle that housed an ATM fitted with a skimming device and a concealed camera to capture customer PINs. Data from more than 1,300 individual credit cards was harvested, cloned onto gift cards, and used to make fraudulent ATM withdrawals across Sydney. Police also found $1.3 million cash in the storeroom.

The most serious charge was knowingly dealing with the proceeds of crime in the amount of $1,302,320. Other offences included dishonestly obtaining financial advantages by deception, dealing with proceeds of crime, and possessing identification information with intent to commit an indictable offence.

The District Court sentenced the appellant to an aggregate term of four years and six months imprisonment, with a non-parole period of two years and three months. The sentencing judge found that the imprisonment of both the appellant and her husband would cause exceptional hardship to their children, and reflected this in an adjustment to the non-parole period. The appellant sought leave to appeal on the sole ground that the sentence was manifestly excessive.

  • Whether the aggregate sentence of four years and six months was manifestly excessive in all the circumstances
  • Whether the sentencing judge gave proper effect to the finding of exceptional hardship to the appellant's children
  • Whether it was appropriate to reflect exceptional hardship through an adjustment to the non-parole period rather than through a reduction in the head sentence
  • Whether any error in the sentencing judge's approach warranted intervention by the Court of Criminal Appeal

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Hamill J (with whom Hoeben CJ at CL and Campbell J agreed) found that the sentencing judge had not erred in principle and that the total sentence did not fall outside the wide discretionary range available given the gravity of the offending.

On the exceptional hardship finding, the Court acknowledged that the simultaneous incarceration of both parents would cause genuine and serious hardship to the children. However, it found that the sentencing judge had given effect to this finding by making a substantial adjustment to the non-parole period. The Court noted that exceptional hardship does not automatically translate into a reduction in the head sentence and that the adjustment made was an orthodox and adequate means of reflecting the finding.

The Court also addressed the question of whether a sentence might be "crafted" so as to facilitate eligibility for an Intensive Corrections Order (ICO). Hamill J noted that structuring a sentence with an eye to making an ICO available would be contrary to sentencing orthodoxy. The correct approach requires a court first to determine the appropriate sentence, and only then to consider whether an ICO is available and appropriate.

The Court emphasised the gravity of this type of offending. Drawing on prior authority, including Thangavelautham v R and Yow v R, it confirmed that syndicated credit card fraud and electronic banking system exploitation warrant strong emphasis on both general and specific deterrence. The sentence was described as severe, but not manifestly excessive, given the sophistication of the scheme, the scale of the proceeds, the appellant's continued offending while on conditional bail, and the multiplicity of charges.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of exceptional hardship to children resulting from the incarceration of both parents does not necessarily require a reduction in the head sentence; reflecting that finding through an adjustment to the non-parole period can constitute a sufficient and orthodox response.
  • Structuring or "crafting" a sentence with a view to making an Intensive Corrections Order available is contrary to sentencing orthodoxy; the appropriate sentence must be determined first, with the ICO question addressed only afterwards.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that credit card skimming and identity fraud operations carry grave criminality, with both personal and general deterrence of particular significance, especially where the scheme is sophisticated, sustained, and difficult to detect.
  • Continued offending while on conditional liberty after an initial arrest is a factor that aggravates moral culpability, even where a sentencing court accepts that relationship dynamics between co-offenders temper its full weight.
  • No appellate error was established merely because a sentence is severe; the Court of Criminal Appeal will not intervene unless the sentence falls outside the broad discretionary range available to the sentencing judge.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 3
- Crimes Act 1900 (NSW), ss 192E, 192J, 192K, 193B, 193C

Cases
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Mandranis v R [2021] NSWCCA 97
- R v Zamagias [2002] NSWCCA 17
- Thangavelautham v R [2016] NSWCCA 141
- Yow v R [2010] NSWCCA 251