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Court of Criminal Appeal 5 September 2022

Kareem v R

[2022] NSWCCA 188

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE AGREED FACTS OFFENDER WHERE CO

Citation: Kareem v R [2022] NSWCCA 188
Court: Court of Criminal Appeal, New South Wales
Date: 5 September 2022
Judges: Price J, N Adams J, Ierace J

Background

The applicant pleaded guilty in the District Court to two fraud offences and one attempted fraud offence under the Crimes Act 1900 (NSW). The offences related to a scheme, established by a co-offender in 2013 and continuing until 2017, to defraud ANZ Bank by opening accounts using false identities and applying for loans and credit cards under those identities. The applicant held university-level accounting qualifications and was working as a financial controller at the time of his arrest.

Both the applicant and his co-offender were sentenced together in the District Court in December 2020. Separate, and materially inconsistent, statements of agreed facts were tendered for each offender. The sentencing judge imposed an aggregate term of 4 years imprisonment on the applicant, with a non-parole period of 2 years and 4 months. The co-offender received a heavier aggregate sentence of 5 years and 6 months.

The applicant sought leave to appeal on three grounds: that the sentencing judge used material from the co-offender's agreed facts when sentencing him; that the judge wrongly characterised his conduct as using his "skills as an accountant"; and that the judge failed to give proper weight to the hardship his imprisonment would cause his family, including a son with autism spectrum disorder.

  • Whether the sentencing judge erred by relying on material from the co-offender's agreed facts when sentencing the applicant
  • Whether the sentencing judge erred in finding that the applicant used his "skills as an accountant" as an aggravating circumstance
  • Whether the sentencing judge failed to give proper consideration to the direct hardship to the applicant's family arising from his imprisonment
  • Whether the sentencing judge separately failed to consider the impact of that family hardship on the applicant himself, in terms of making his imprisonment more onerous

Decision

Ground 1: Use of co-offender's agreed facts. The Court found that the sentencing judge, despite intending to draw only background detail from the co-offender's agreed facts, had in fact extracted passages that attributed a greater degree of criminal liability to the applicant than his own agreed facts supported. The Court held this constituted a sentencing error. All three judges were critical of the way the agreed facts were prepared and presented: Price J observed that the facts were "unnecessarily complex, to a point that the differences in the roles of each offender were obscured," and N Adams J noted that the confusing presentation led the sentencing judge into error despite her stated intention to limit herself to the applicant's facts.

Ground 2: Skills as an accountant. The Court accepted this ground. The applicant's role involved transferring funds and maintaining records, and detailed spreadsheets relating to the scheme were found on his computer. The sentencing judge had found this conduct engaged his accounting skills. The Court of Criminal Appeal concluded the conduct in question did not call upon skills specific to accounting in the relevant sense and that the characterisation was not supported by the agreed facts.

Ground 3: Family hardship. The applicant's wife and two children, including a son with autism spectrum disorder, were likely to suffer financial and practical hardship as a result of his imprisonment. The Court found that the sentencing judge acknowledged financial hardship and "other hardship" but did not separately and adequately consider the impact of that family hardship on the applicant himself, including whether it made his imprisonment more burdensome. The Court held this was a further error in the sentencing exercise.

Having found error on all three grounds, the Court proceeded to resentence the applicant. It allowed a 10 per cent discount for late pleas of guilty and found special circumstances warranting a lower ratio of non-parole period to total sentence. The result was a reduced aggregate sentence of 3 years and 7 months imprisonment.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • Sentence imposed in the District Court quashed and replaced with an aggregate term of 3 years and 7 months imprisonment, commencing 16 December 2020 and expiring 15 July 2024, with a non-parole period of 2 years expiring 15 December 2022

Key Takeaways

  • A sentencing judge must sentence each offender only on the basis of that offender's agreed facts; where a co-offender's agreed facts contain material attributing greater culpability, even inadvertent reliance on those facts constitutes error.
  • Agreed facts tendered for co-offenders should be sufficiently clear and consistent to allow a sentencing court to distinguish each offender's role without confusion; the Court of Criminal Appeal criticised the Crown and defence counsel in this case for failing to assist the sentencing judge in that task.
  • Finding that an offender used professional skills as an aggravating factor requires clear support in the agreed facts; the characterisation must correspond to skills that were genuinely engaged by the offending conduct, not merely to the offender's professional background.
  • Where an offender's family will suffer hardship from imprisonment, a sentencing court is required to consider not only the direct impact on the family but also, as a distinct matter, the additional burden that hardship places on the offender during the period of incarceration.
  • All three judges joined in emphasising that the negotiation of agreed facts in co-offender cases carries significant consequences for the sentencing process, and that unnecessary complexity or inconsistency between co-offenders' facts can undermine the integrity of sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E, 193D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44, 68

Cases:
- Baquiran v R [2014] NSWCCA 221
- Dipangkear v R [2010] NSWCCA 156
- Gaggioli v R [2014] NSWCCA 246
- Griffin v R [2018] NSWCCA 259
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Ibrahim v R [2022] NSWCCA 161
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markovic v R (2010) 30 VR 589; [2010] VSCA 105
- Mokhaiber v R [2011] NSWCCA 10
- R v Cornell [2015] NSWCCA 258
- R v Edwards (1996) 90 A Crim R 510
- R v Girard [2004] NSWCCA 170
- R v Harris (2015) 70 MVR 412; [2015] NSWCCA 81
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44