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District Court 3 May 2023

R v Tongue

[2023] NSWDC 175

DrugsFraud & dishonesty
CRIME FRAUD MAKE COUNTERFEIT MONEY

Citation: R v Tongue [2023] NSWDC 175
Court: NSW District Court
Date: 3 May 2023
Judge: Scotting DCJ

Background

The offender pleaded guilty in the Local Court to three principal offences: making counterfeit money (a federal offence under the Crimes (Currency) Act 1981 (Cth)), dealing with identification information to facilitate fraud (a NSW offence), and supplying a prohibited drug. Several related offences were taken into account at sentencing, either under the federal schedule procedure (s 16BA, Crimes Act 1914 (Cth)) or on a Form 1 (a NSW procedure allowing additional uncharged offences to be considered in mitigation or in fixing the sentence).

The counterfeiting operation was elaborate and sustained. Between late 2020 and mid-2021, the offender rented a storage unit, acquired a large commercial UV printer, and used polymer sheets to produce counterfeit Australian $100 notes. Police installed surveillance equipment in the storage unit in February 2021 and recorded multiple visits, conversations, and printing sessions. When search warrants were executed in July 2021, officers located a sheet bearing 38 counterfeit $100 notes, along with relevant materials and equipment.

The offender had a history of undiagnosed ADHD, which had gone untreated at the time of the offending, and his drug use was found to be causally connected to that condition. By the time of sentencing, he had spent approximately eight months in custody and had made demonstrable rehabilitation progress.

  • What sentences were appropriate for the federal and state offences, having regard to the statutory frameworks governing each?
  • What discount applied to the guilty pleas entered in the Local Court?
  • Whether the offender's undiagnosed ADHD and associated drug use reduced the weight to be given to general deterrence, retribution, and denunciation.
  • Whether the state sentences should be served by way of an Intensive Corrections Order (ICO) rather than full-time custody, having regard to rehabilitation prospects and community safety.

Decision

For the federal counterfeiting offences, Scotting DCJ applied Part IB of the Crimes Act 1914 (Cth), noting that the court must impose a sentence of severity appropriate to all the circumstances and must have regard to the matters listed in s 16A(2) of that Act. A 25% discount applied to reflect the utilitarian value of the guilty pleas. The non-parole period for the federal sentence was fixed as the minimum period justice required the offender to serve in custody, consistent with the High Court's guidance in Power, Deakin, and Bugmy as synthesised in Hili v The Queen.

For the state offences, the court imposed an aggregate sentence of 2 years and 9 months under s 53A of the Crimes (Sentencing Procedure) Act 1999, also with a 25% plea discount applied. The individual components, before aggregation, were 2 years and 8 months for the identification information offence and 3 months for the drug supply offence.

His Honour found that the offender's ADHD, which was undiagnosed and untreated at the time of the offending, bore a direct causal relationship to the offending conduct. This reduced the weight properly given to general deterrence, retribution, and denunciation. The court accepted that the offender had demonstrated genuine rehabilitation and that returning him to full-time custody risked undermining that progress.

Scotting DCJ was satisfied, applying the principles in R v Zamagias and Mandranis v R, that community safety was best served by requiring the offender to continue intensive treatment in the community. Accordingly, the state sentence was ordered to be served by way of an ICO, with conditions including drug abstinence, mental health treatment, drug rehabilitation treatment, and 120 hours of community service.

Orders Made

Federal offences:
- The offender was released on 3 May 2023, having served 8 months of the federal sentence, on entering into a recognisance of $1 to be of good behaviour for 18 months.

State offences (served by way of an Intensive Corrections Order):
- Aggregate term of imprisonment of 2 years and 9 months, commencing 3 May 2023 and expiring 2 February 2026, served by way of an ICO.
- Standard ICO conditions: no further offending; submission to supervision by a Community Corrections Officer.
- Additional conditions:
- Abstain from restricted or prohibited drugs (except those prescribed by a medical practitioner).
- Receive mental health treatment as directed by Community Corrections.
- Receive drug rehabilitation treatment as directed by Community Corrections.
- Complete 120 hours of community service.
- The offender was required to report to Windsor Community Corrections Office by 4pm on 10 May 2023.
- Non-compliance with ICO conditions may result in formal warning, more stringent conditions, or revocation and a return to full-time custody.

Key Takeaways

  • The District Court confirmed that a 25% discount for guilty pleas entered in the Local Court applied equally to both federal and state offences in this matter, reflecting the utilitarian value of those pleas.
  • A direct causal connection between an offender's undiagnosed mental health condition (here, ADHD) and the offending conduct can reduce the weight accorded to general deterrence, retribution, and denunciation at sentencing.
  • Under the ICO framework in s 66 of the Crimes (Sentencing Procedure) Act 1999, a sentencing court may prefer an ICO over full-time imprisonment where community safety is better served by the offender's continued rehabilitation in the community, provided the court is satisfied the offender does not pose an unacceptable risk of reoffending.
  • Rehabilitation progress made while on remand is a relevant factor: the court found that returning the offender to full-time custody would jeopardise gains already achieved.
  • An ICO remains a sentence of imprisonment with significant restrictions on liberty; the District Court emphasised that it reflects the seriousness of the conduct and holds the offender accountable, notwithstanding that it is served in the community.

Legislation and Cases Referenced

Legislation:
- Crimes (Currency) Act 1981 (Cth), ss 6, 9(1), 11(1)(c), 11(2)(b)
- Crimes Act 1914 (Cth), ss 16A, 16BA
- Crimes Act 1900 (NSW), ss 192J, 192L
- Drugs Misuse and Trafficking Act 1985 (NSW), s 25(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 7(1), 21A, 25D(2)(a), 53A, 66

Cases:
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 546
- Bugmy v The Queen (1990) 169 CLR 525
- Deakin v The Queen (1984) 58 ALJR 367
- Hili v The Queen (2010) 242 CLR 520
- Johnson v The Queen (2004) 78 ALJR 616
- Mandranis v R [2021] NSWCCA 97
- Power v The Queen (1974) 131 CLR 623
- R v El Karhani (1990) 21 NSWLR 370
- R v Lamella [2014] NSWCCA 122
- R v Olbrich (1999) 199 CLR 270
- R v Zamagias [2002] NSWCA 17