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Court of Criminal Appeal 21 July 2023

Ishaq v R

[2023] NSWCCA 178

Fraud & dishonestyTheft & property
CRIME APPEAL APPEAL AGAINST SENTENCE INTENSIVE CORRECTION ORDER SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL DISMISSED

Citation: Ishaq v R [2023] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 21 July 2023
Judges: Adamson JA, McNaughton J (primary reasons), Sweeney J

Background

The applicant sold stolen goods through eBay and other online platforms over a period of approximately five months in 2018 and 2019. He did so using the identity of another person, a woman whose driver's licence details he had obtained following a motor vehicle accident. He used her name, date of birth, address, and licence number to create eBay and PayPal accounts, and sold 231 items for a total of approximately $58,000 during a two-month active trading period.

The applicant pleaded guilty in May 2021 to three offences: one count of dealing with identification information (s 192J of the Crimes Act 1900 (NSW)) and two counts of recklessly dealing with proceeds of crime (s 193B(3) of the Crimes Act). Two further offences were taken into account on a Form 1 (a procedural mechanism allowing additional offences to be considered at sentencing without separate convictions).

In September 2021, the District Court sentenced the applicant to an aggregate term of three years' imprisonment, served by way of an Intensive Correction Order (ICO), which also required 200 hours of community service and a $5,500 fine. The applicant sought leave to appeal, arguing the sentence was manifestly excessive.

  • Whether the aggregate sentence of three years' imprisonment (served as an ICO) was manifestly excessive.
  • Whether the indicative sentences for the proceeds-of-crime offences were too high, having regard to the value of the goods sold.
  • Whether the indicative sentence for the identification information offence appropriately reflected the nature of that offending.
  • Whether the offences were correctly assessed as falling below the mid-range of objective seriousness.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding the sentence was not manifestly excessive and remained well within the sentencing judge's discretion.

On the proceeds-of-crime counts, the Court confirmed that the value of goods sold is only one of several factors bearing on objective seriousness. The sentencing judge had correctly identified the large volume of property involved, the sustained pattern of behaviour, the applicant's deliberate steps to conceal his identity from law enforcement, and the applicable statutory aggravating features. These considerations supported the indicative sentences imposed.

On the identification information count, the Court found it was open to the sentencing judge to characterise the conduct as a cynical and opportunistic misuse of a fellow citizen's identity, sustained over a significant period purely for financial gain. The Court noted that such conduct undermined the integrity of platforms such as eBay and PayPal. The indicative sentence for this offence appropriately reflected those features.

The Court also confirmed that finding the offences fell below the mid-range of objective seriousness was open on the facts, and that the indicative sentences reflected that assessment. The aggregate sentence of three years showed meaningful concurrency between the individual indicative sentences, and serving it by way of an ICO represented a significant element of leniency. The Court reiterated that the appeal lies against the aggregate sentence, not the individual indicative sentences: even if an indicative sentence were excessive, that would not automatically render the aggregate sentence excessive.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • In sentence appeals involving aggregate sentences, the Court of Criminal Appeal confirmed that the appeal lies from the aggregate sentence, not the individual indicative sentences. An arguably excessive indicative sentence does not automatically make the aggregate sentence manifestly excessive.
  • The value of stolen goods sold is only one factor in assessing the objective seriousness of a proceeds-of-crime offence under s 193B(3) of the Crimes Act. Volume, duration, pattern of conduct, and steps taken to evade detection are all relevant considerations.
  • Where an offender uses another person's identity over a sustained period to facilitate the commission of numerous offences for financial gain, a sentencing court may characterise that conduct as cynical and opportunistic, with broader harms to the integrity of commercial platforms.
  • Serving a custodial sentence by way of an ICO carries inherent leniency, a factor the Court of Criminal Appeal treated as relevant when assessing whether the overall sentence was within the permissible range.
  • A small selection of comparable cases cannot, of itself, establish that a sentence is unreasonable or plainly unjust. Past sentences serve as a yardstick for guidance, not as fixed boundaries.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E, 192J, 193B, 527C
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 21A
- Criminal Appeal Act 1912 (NSW), s 5

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- Hraiki v R [2019] NSWCCA 140
- Hughes v R [2018] NSWCCA 2
- JM v R [2014] NSWCCA 297
- Ke v R [2021] NSWCCA 177
- Kerr v R [2016] NSWCCA 218
- Kresovic v R [2018] NSWCCA 37
- Lowndes v The Queen (1999) 195 CLR 665
- Markarian v The Queen (2005) 228 CLR 357
- R v Pullen [2018] NSWCCA 264
- R v Zamagias [2002] NSWCCA 17
- Shavali v R [2022] NSWCCA 178
- The Queen v Kilic (2016) 259 CLR 256
- Wong v The Queen (2001) 207 CLR 584