Citation: Rasel v R [2022] NSWCCA 239
Court: NSW Court of Criminal Appeal
Date: 18 November 2022
Judges: Bell CJ (principal judgment); Price J; Lonergan J (both agreeing)
Background
The appellant was a payroll officer who used his position to access the personal identification details of employees across several businesses. He produced false identification documents and lodged fraudulent tax returns in others' names, illegitimately obtaining income tax refunds. He pleaded guilty to five federal offences of defrauding and attempting to defraud the Commonwealth, and admitted a further 20 related offences taken into account at sentencing. After a 25% discount for early guilty pleas, the District Court imposed an aggregate sentence of four years' imprisonment with a non-parole period of two years and two months.
At the original sentencing in November 2021, the appellant relied on hardship that imprisonment would cause to his wife, child, and family members in Bangladesh, to whom he had been providing significant financial support. The sentencing judge declined to give this evidence weight under s 16A(2)(p) of the Crimes Act 1914 (Cth), because it did not meet the then-applicable "exceptional hardship" threshold. The judge did, however, consider the evidence as part of the appellant's broader subjective case.
The appellant appealed against sentence. By the time the appeal was heard, the Court of Criminal Appeal had decided Totaan v R [2022] NSWCCA 75, which overturned the "exceptional hardship" requirement. The Crown conceded the original sentence was tainted by legal error and agreed the appeal should be upheld unless the Court was satisfied that no lesser sentence was warranted in law.
Legal Issues
- Whether the sentencing judge erred by applying the "exceptional hardship" threshold before taking family hardship into account under s 16A(2)(p) of the Crimes Act 1914 (Cth)
- Whether, on resentence following the Totaan correction, a lesser sentence than four years' imprisonment was warranted in law
- Whether an intensive correction order was available as an alternative sentencing disposition
Decision
The Court confirmed the Crown's concession that the sentencing judge had applied the wrong legal test. Following Totaan, s 16A(2)(p) requires a sentencing court to take into account the probable effect of a sentence on the offender's family or dependants without first requiring a finding of "exceptional" hardship. The sentencing judge's failure to apply that correct standard constituted legal error, and leave to appeal was granted.
The Court then undertook the resentencing exercise afresh, considering all fresh evidence filed on appeal. This included affidavits from the appellant's wife, father, sister, and solicitor, as well as the appellant himself, addressing the impact of imprisonment on his family and the hardships he experienced in custody, including approximately 61 days in isolation due to COVID-19 pandemic restrictions.
On the question of family hardship, the Court accepted that the appellant's incarceration had had a very serious impact on both his wife and child. However, it also noted that the financial support his family in Bangladesh had come to depend upon was, to some extent, derived from the proceeds of the offending itself. That circumstance significantly qualified the weight that could be given to the cessation of that support.
Weighing all relevant factors, including the seriousness of the offending, the real personal harm caused to victims whose identities were stolen, the need for specific and general deterrence, the appellant's prior dishonesty conviction, and the mitigating factors of remorse, reparation, and good rehabilitation prospects, the Court was not satisfied that any lesser sentence was warranted. Because no lesser custodial sentence was appropriate, an intensive correction order was also unavailable under s 68(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW). The appeal was dismissed.
Orders Made
• Grant leave to appeal
• Dismiss the appeal
Key Takeaways
- Following Totaan v R [2022] NSWCCA 75, the correct approach to s 16A(2)(p) of the Crimes Act 1914 (Cth) requires a sentencing court to consider the probable effect of a sentence on an offender's family or dependants without any threshold requirement of "exceptional" hardship.
- Sentences imposed before Totaan that applied the "exceptional hardship" test were tainted by legal error, opening the door to appeal, but that error does not automatically produce a lesser sentence on resentence.
- Where financial support to family members was funded, at least in part, by the proceeds of offending, the weight attributable to the loss of that support under s 16A(2)(p) is correspondingly reduced.
- Under s 68(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an intensive correction order cannot be imposed where the court determines that no sentence lesser than the original custodial term is warranted in law.
- The Court of Criminal Appeal confirmed that the impact on victims of identity theft extends beyond financial inconvenience to include a real sense of personal violation, a matter relevant to the objective gravity of tax fraud offences involving stolen identities.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 16A(1), 16A(2)(p), 16BA
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Criminal Code Act 1995 (Cth), ss 11.1(1), 134.2(1), 372.1(1)
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 137
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9 (as in force prior to 24 September 2018), 68(2)
Cases
- Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578
- Kentwell v R (2014) 252 CLR 601; [2014] HCA 37
- Director of Public Prosecutions (Cth) v Vina Money Transfer Pty Ltd [2022] FCA 665
- Rodgerson v R [No 2] [2022] VSCA 154
- R v Girard [2004] NSWCCA 170
- R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369
- Kaveh v R [2017] NSWCCA 52