Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Lou v R [2021] NSWCCA 120 Hearing dates: 24 March 2021 Date of orders: 18 June 2021 Decision date: 18 June 2021 Before: Hoeben CJ at CL at [1] Campbell J at [2] Hamill J at [3] Decision: (1) Application for leave to appeal against sentence granted. (2) Appeal dismissed. Catchwords: CRIMINAL LAW - sentencing - credit card fraud and identity theft - skimming devices - proceeds of crime - grave criminality - exceptional hardship to children - where husband and wife both incarcerated - finding reflected in adjustment to non-parole period - "crafting" sentence to facilitate availability of intensive corrections order - contrary to orthodoxy - sentence severe but not manifestly excessive Legislation Cited: Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3, Div 3 Crimes Act 1900 (NSW), ss 193B, 192E, 193C, 192J, 192K Cases Cited: 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 Category: Principal judgment Parties: Li Lou (Applicant) Regina (Respondent) Representation: Counsel: A Parsons (Applicant) E Wilkins SC (Respondent) Solicitors: Ren Zhou Lawyers (Applicant) Office of Director for Public Prosecutions (Respondent) File Number(s): 2017/321729; 2017/305931 Publication restriction: Nil Decision under appeal Court or tribunal: District Court of NSW Jurisdiction: Crime Date of Decision: 25 March 2021 Before: Culver DCJ File Number(s): 2017/321729; 2017/305931 Judgment 1. HOEBEN CJ AT CL: I agree with Hamill J and the order which he proposes. 2. CAMPBELL J: I have had the considerable advantage of reading the judgment of Hamill J in draft. I agree with it and have nothing to add. I agree also with the orders his Honour proposes. 3. HAMILL J: Li Lou applies for leave to appeal against a sentence imposed by her Honour Judge Culver in the District Court on 21 February 2020. Ms Lou pleaded guilty to a number of charges of what can be described generically as credit card and identity fraud. A number of other offences were taken into account on a Form 1 pursuant to Division 3 of Part 3 of the Crimes (Sentencing Procedure) Act 1999 (NSW). The sentencing Judge imposed an aggregate term of imprisonment of four years and six months with a non-parole period of two years and three months. The sentence was backdated to 20 January 2020 to reflect the time the applicant spent in custody on remand. The total sentence will expire on 20 July 2024 and the applicant will become eligible for release on parole on 20 April 2022. 4. The applicant relied on a single ground of appeal; namely that the sentence is manifestly excessive. This ground is advanced largely on the basis that the sentencing Judge failed to give proper effect to her Honour's finding that there would be "exceptional hardship" to the applicant's children if the applicant was sentenced to imprisonment. 5. The applicant pleaded guilty to a total of 23 offences and asked a number of others to be taken into account. The charges and associated facts are a little complicated and I will adopt Judge Culver's alphabetised description of the offences. Ms Lou entered a plea of guilty in the District Court on 29 July 2019 to the most serious charge: 1. Charge A (Count 1 on the indictment): Knowingly deal with the proceeds of crime in the amount of $1,302,320 contrary to s 193B(2) of the Crimes Act 1900 (NSW). 1. The remaining pleas of guilty were entered in the Local Court on 23 October 2018: 1. Charge B (H64687220 seq 1): Dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act in an amount of $100 from Ms Julia Clements; 1. Charge I (H64687220 seq 2), taken into account on a Form 1, was an additional offence contrary to s 192E(1)(b) of the Crimes Act defrauding Ms Clements of $100; 1. Charge C (H64687220 seq 3): Dishonestly obtaining a financial advantage by deception (attempted) contrary to s 192E(1)(b) of the Crimes Act in an amount of $100 from Ms Janet Bond; 1. Charges J (H64687220 seq 7), K (H64687220 seq 8), L (H64687220 seq 9), M (H64687220 seq 10), taken into account on a Form 1, were similar attempts to defraud Ms Bond contrary to s 192E(1)(b) of the Crimes Act; 1. Charge D (H64687220 seq 4): Deal with proceeds of crime in the amount of $2,500 contrary to s 193C(2) of the Crimes Act; 1. Charge O (H66307542 seq 17), taken into account on a Form 1, was a similar offence in relation to $2,000 contrary to s 193C(2) of the Crimes Act; 1. Charge E (H64687220 seq 6): Deal with identification information to commit an indictable offence concerning a credit or debit card contrary to s 192J of the Crimes Act; 2. Charge F (H64687220 seq 11): Dishonestly obtaining a financial advantage by deception in an amount of $600 from Ms Samantha McCourt contrary to s 192E(1)(b) of the Crimes Act; 1. Charge N (H64687220 seq 12), taken into account on a Form 1, was a similar attempt to defraud Ms McCourt contrary to s 192E(1)(b) of the Crimes Act; 1. Charge G (H66307542 seq 1-16): This encompassed 16 separate charges to which pleas of guilty were entered. Each of these was an allegation of possession of identification information with intent to commit indictable offence contrary to s 192K of the Crimes Act with each of the 16 charges being referable to a Woolworths gift card in the possession of the offender; 2. Charge H (H66307542 seq 19): Dishonestly obtaining a financial advantage by deception in an amount of $65,140. This amount was obtained by using "cloned" credit cards to make cash withdrawals from ATMs contrary to s 192E(1)(b) of the Crimes Act. 1. It is unnecessary to descend into the detail of the facts of each offence. There appear to be some minor inconsistencies in the amounts recorded in the various charges sheets and the agreed facts although this seemed to arise from the fact that the same cards were used on more than one occasion. While it is not necessary to articulate or resolve the precise detail of each individual charge, it is important to understand the nature and circumstances of the offending. 2. The applicant was first charged with the offences identified as H64687220 on 10 October 2017 at Castle Hill Towers after police were notified by the National Australia Bank (NAB) of a number of fraudulent transactions on NAB ATMs. Police searched the applicants bag and located 62 gift cards, each of which had details of a legitimate credit card cloned onto it and a personal identification number (PIN) written on a slip of paper attached. Cash in the amount of $2,500, which had been withdrawn from ATMs using the cloned gift cards, was found in the applicant's wallet. The applicant participated in an ERISP and accepted that she had made fraudulent transactions using the gift cards with cloned credit card information. 3. Ms Lou worked at a convenience store in Rozelle, owned by her husband and co-offender, Mr Fan, and Mr Fan's mother. On 24 October 2017, police executed a search warrant at the convenience store and discovered the ATM had a credit card "skimming" device installed within it. In another room of the store was a video camera that was set up to capture the keyboard of the ATM. Police also found a laptop containing data from more than 1,300 individual credit cards, gift cards and $1.3 million cash in the storeroom. The skimming device allowed credit card numbers and PINs to be obtained by the applicant and her husband from customers who used the ATM in late 2016 and early 2017. The data was then cloned onto gift cards which the applicant used to make, or attempt to make, fraudulent withdrawals from ATMs at various shopping centres around Sydney. That conduct lay at the core of the multiplicity of offences to which the applicant pleaded guilty or acknowledged her guilt. The offences represented a series of sophisticated and well-planned deceptions on customers of the couple's business. 4. After the search, the applicant was arrested and charged with H66307542 and the proceeds of crime offence in relation to the $1.3 million found in the storeroom (Charge A). She was granted conditional bail by the Local Court at Parramatta on 3 November 2017, but was taken back into custody on 14 November 2017. On 4 December 2017, the applicant was granted conditional bail by the Supreme Court until she was sentenced on 21 February 2020. 5. The seriousness of the applicant's malfeasance cannot be underestimated. Counsel for the applicant did not challenge Judge Culver's statement that "the authorities have recognised that offences involving the systematic exploitation of the electronic banking system invoke particular significance in both personal and general deterrence." [1] Her Honour referred to the observations of Bathurst CJ in Thangavelautham v R [2016] NSWCCA 141, another case involving credit card "skimming". The Chief Justice, with whom Hoeben CJ at CL and (on this issue) RS Hulme J agreed, said at [86]: "Conspiracies of this nature not only have the potential to cause serious financial hardship and embarrassment to a large number of consumers but also have the capacity to undermine confidence in this country's financial system. It is imperative that in this context, any sentence reflects the need for general and specific deterrence. As the sentencing judge pointed out, this was the approach taken by the Court of Appeal of Western Australia in Tomov v The Queen [2011] WASCA 189. The need for severe punishment for offences of this nature has also been recognised by this Court and the Court of Appeal of Victoria: R v Araya [2005] NSWCCA 283; 155 A Crim R 555 at [96]-[98]; R v Harrower [1999] VSCA 182 at [10]." 1. See also the observations of RS Hulme J at [104]. The majority (RS Hulme J dissenting) reduced the sentence on parity grounds. 2. The sentencing Judge also referred to the remarks of Fullerton J (with whom Hodgson JA and Price J agreed) in Yow v R [2010] NSWCCA 251 at [30]: "The cost to the community of syndicated credit card fraud is not only that it undermines consumer confidence. The losses generated by frauds of this magnitude are invariably passed on to the consumer through the imposition of higher levies or fees. The general public who increasingly use credit cards as a convenient substitute for cash on a daily basis, and the financial institutions that offer and provide a secure range of credit card facilities to both traders and consumers, are entitled to expect that the perpetrators of fraudulent schemes of the kind with which the applicant was involved are appropriately punished both to deter those who may be tempted to participate in credit card fraud and to dissuade those who might be tempted by financial reward to come to Australia with the express purpose of doing so." 1. The applicant did not challenge the findings of the sentencing Judge or the statements of principle referred to in the preceding paragraphs. Indeed, by way of concession, it was submitted in writing: "There is no submission advanced in this case that the offending is not serious. It arose in the circumstances of a lucrative and planned series of identification fraud. There are numerous victims. The amount defrauded, particularly in respect of count 1 on the indictment, is high." [2] 1. The applicant placed particular reliance on Judge Culver's assessment that the evidence established that a sentence of imprisonment would result in "hardship to an exceptional extent" to the applicant's children. The applicant's husband and co-accused was sentenced to six years and six months with a non-parole period four years and ten months. [3] The couple were separated and had three children aged (at the time of sentence) 13, ten and six years respectively. There was evidence that the applicant's mother-in-law was willing to look after the three children but that this would be difficult because she was 63 years of age and had her own business. She wrote a letter to the sentencing Judge explaining the difficulties she and the children would face if the applicant was sent to gaol. 2. Judge Culver was conscious of the competing submissions of the parties on this issue and of the authorities governing the circumstances in which hardship to third parties may impact on the exercise of the sentencing discretion. Her Honour spent some time considering the matter and it is appropriate to set out that passage of the sentencing judgment in full: "I turn now to a contentious issue in the proceedings and that is whether or not the offender can demonstrate that there would be hardship caused to third parties, namely her children, should she be incarcerated. At p 6 of the psychological report, the offender is recorded as having stated the she was feeling controlled by her mother-in-law for several years and feeling frustrated by the intrusion in her life and worried for her children's welfare. The offender stated that her mother-in-law has no knowledge of how to care for a young child. She reported a previous instance where the mother-in-law dropped off the youngest child at childcare and left that girl at the front gate, rather than taking her inside. The offender's concern is that her mother-in-law has no concept of the needs of children for security and the offender fears a repetition of such behaviour on the part of her mother-in-law will reoccur. In the oral evidence, the offender said that the mother-in-law would have problems dropping children at childcare or taking care of them. She said that her mother-in-law never cared for the children before for any significant length of time, even though they were all living in the same household. She said that when she was released, that is when the offender was released from custody, having spent 32 days on remand, she returned to find that her youngest child had visible bones showing through her body. The offender stated that her mother-in-law did not look after her own son, the offender's husband, but that the offender's husband was instead raised by his grandparents. The offender's concern is that the mother-in-law has only seen the children once in a couple or months or half year when she had an opportunity to have far more contact with the children. The offender said her mother-in-law cannot understand her children nor talk to them. Ms Hui Qin Chen provided a letter to the Court in exhibit 2. In that letter, she states that she is the mother-in-law of the offender and that she is working fulltime managing a small newsagency, basically running the shop by herself. She gives her opinion that the children cannot live without their mother again. She said that she has spent some time with her grandchildren, but they never stay overnight with her. She is 63 years old and she does not think she can look after the three grandchildren properly, even if she gave up her small newsagency business. She said she does not feel like she has the energy she had before. She thinks it is impossible to care for them on a fulltime basis. She knows that the offender committed a crime because she was under Mr Fan's influence and instructions. She describes the offender as having been truly remorseful. The defence makes submissions that the Court ought find that there are exceptional circumstances justifying a finding that hardship would occur to the offender's children should she be incarcerated. At para 23, Mr Smith in his written submissions stated: 'It is submitted that this is a case which involves highly exceptional circumstances in which the Court would be justified in giving substantial weight to the hardship an otherwise justified sentence would cause to the children. This case is akin to CCA cases where if both parents were to be imprisoned simultaneous (sic) which could deprive their three children of parental care.' The written submissions go on to cite various authorities including the case of [R] v Liu [2005] NSWCCA 378 in which the NSW Court of Criminal Appeal stated at [28]: 'The general common law rule was that hardship to third parties is not relevant to sentence, although exceptions were made. One exception was said to be when both parents were imprisoned simultaneously or the family circumstances meant that the imprisonment of one parent effectively deprived the children of parental care.' Mr Smith then further advanced his submissions at para 28 stating: 'In this case it appears that the grandmother is not capable of looking after the children for other than a short period.' The Crown urged the Court to consider that firstly, there is, despite whatever sense of inadequacy there might be, nonetheless the offender's mother-in-law available to provide at least fundamental care to the three children, despite their respective young ages. Furthermore, the Crown submits in the written submissions that the general principle is that hardship to family and dependants is an unavoidable consequence to the custodial sentence and is not a mitigating consideration unless such hardship is wholly, highly or truly exceptional. Reliance is placed on R v Edwards (1996) 90 A Crim R 510 at 515. The Crown went on to submit that it is only where circumstances are highly exceptional and where it would be inhumane to refuse to do so that hardship to others in sentencing can be taken into account. Each case would depend on the seriousness of the crime, whether there is a need for deterrence and the nature and degree of the impact of the sentence upon the third person. The decision of Dipangkear v R at [34] is relied upon. The Crown submits that the offender's mother-in-law, whilst reluctant, is not unable to give fundamental care to the children. The Crown furthermore asked the Court to note that the offender, whilst committing her offences over a considerable period of time, did so knowing the risk she was taking and knowing that it could have an impact on her children. Ultimately, the Crown submits that the Court could not find exceptional circumstances. The authorities are quite clear in this area that exceptional circumstances would need to be demonstrated if the Court were to take into account hardship to third parties. As stated in the decision of Edwards to which I have referred, at 515: 'It requires no imagination to understand why this is so. Sentencing judges and magistrates are routinely obliged in the course of their duties to sentence offenders who may be the breadwinners of families, carers, paid or unpaid, of the disabled parents of children, protectors of persons who are weak or vulnerable, employers upon whom workers depend for their livelihood and many others in a variety of circumstances bound to result in hardship to third parties if such an offender is sentenced to a full time of imprisonment.' The authorities further note that: 'If a custodial sentence is required but there is evidence of extreme hardship, a Court may take into account the extraordinary features of the case by suspending the sentence of imprisonment, shortening the term of the sentence and or reducing the non-parole period.' (Dipangkear v R [2010] NSWCCA 156 at [34], R v MacLeod at [49]). Each case will depend upon the seriousness of the crime whether there is a need for deterrence and the nature and degree of the impact of the sentence upon the third person.' Suspended sentences are no longer available as a sentencing option in this State. I find that as the father is imprisoned, if the offender as mother to the three children were then to be imprisoned, there would be hardship to an exceptional extent. Whilst the children have their grandmother available for their care, it is clear that the grandmother's reluctance is such that the Court would have some concern about the period of time over which she could maintain that level of care. This contributes to a finding of special circumstances, rather than the Court saying it automatically denies the Court the appropriate or the only available sentencing option of fulltime custody. The reason I say that the hardship is relevant to a contribution to special circumstances is because the offences here are of such seriousness and prevalence in the community, committed over a significant length of time involving many victims and causing such an exploitation of our banking industry, that despite the issue of hardship, there still is a strong residual need to reflect general deterrence in the sentencing outcome." [4] 1. Judge Culver returned to the issue a little later in her remarks to make clear that she was persuaded that the circumstances of the children, and the fact that both parents would be subject to full-time imprisonment, amounted to exceptional hardship: "I just return momentarily in these ex tempore remarks to my findings concerning hardship. I intended to say that the Court accepts that where both parents are incarcerated, that can, in the authorities, appropriately amount to a finding of exceptional hardship and I do make that finding." [5] 1. The applicant submitted that the finding of exceptional hardship was not reflected in the sentence actually imposed. However, the applicant's submission departed from orthodoxy because it appeared to be based on the proposition that the sentencing Judge (and this Court) could "craft" the sentence in such a way that a full time custodial sentence could be avoided by reducing an otherwise appropriate sentence to such an extent that it would not exceed three years. If the sentencing Judge, or this Court, took that approach it would be possible under the relevant legislative provision to order that the sentence be served by way of an intensive corrections order (ICO). However, the manifest difficulty with the submission was highlighted in the following exchange on the hearing of the appeal: "CAMPBELL J: Mr Parsons, the way this Court has said in the past that you get an ICO is you've got to start with what the appropriate sentence is, and if the appropriate sentence exceeds for a single offence two years for an aggregate sentence of three years then the question just doesn't arise, does it? I mean you can't work backwards and say for the hardship this should be served in the community, therefore I am going to impose an aggregate sentence of less than three years, can you? PARSONS: Your Honour, I submit it would depend upon the finding pursuant to the ultimate synthesis and in this case the submission is that the sentencing judge found that general deterrence was so significant in the ultimate synthesis that the relevance of the finding of hardship can only be reflected in a finding of special circumstances. HAMILL J: Let's say that you took the different approach. The question Campbell J is asking you, which seems to accord with, or be predicated on, a great many authorities, is that the sentencing judge cannot and we cannot say because of this exceptional hardship we don't want to send her to gaol full time, so we'll come up with a sentence of three years or less. That's what his Honour is asking you. PARSONS: I submit it's open for this Court to intervene in that matter. HAMILL J: I don't understand that. HOEBEN CJ at CL: That's some kind of result-driven process which seems to be against all the sentencing principles. PARSONS: Yes, your Honour. HAMILL J: You have to first decide is a custodial sentence the only appropriate penalty. You then have to decide what the number is and if it's less than three years on an aggregate sentence then you can contemplate whether or not an ICO would be an appropriate outcome. You can't decide you want to give an ICO and say therefore I am going to make it three years or less. PARSONS: No, I understand. The complaint essentially focuses on the way that the sentence was crafted and the submission is that it was open to her Honour in the exercise of her discretion to craft a sentence with a starting point of three years so that an Intensive Correction Order could be invoked." [6] 1. These submissions cannot be accepted in light of authorities going back at least to R v Zamagias [2002] NSWCCA 17, [7] and recently affirmed in Mandranis v R [2021] NSWCCA 97. In the latter case, Simpson AJA (with whom Garling and N Adams JJ agreed) explained the well-established and correct approach and the orthodox sequence of reasoning at [22] –[29]: "[22] The starting point in any sentencing exercise is the statutory maximum and any applicable standard non-parole period specified in Pt 4, Div 1A of the Sentencing Procedure Act: see Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 at [27]. The process thereafter was clearly and sequentially set out by Howie J in R v Zamagias [2002] NSWCCA 17. The next step is the application of ss 5 and 3A of the Sentencing Procedure Act; s 5 precludes the imposition of a sentence of imprisonment unless, after all possible alternatives have been considered, the court is satisfied that no penalty other than imprisonment is appropriate; s 3A states the purposes for which a court may impose a sentence on an offender. [23] This is not a case in which it could be said, in the application of s 5, that a penalty other than a term of imprisonment would be appropriate. No contrary submission was advanced. [24] Over the years, sentencing legislation has provided for a variety of options by which criminal conduct may be punished by non-custodial or partially custodial (for example, periodic detention, provided for by s 6, now repealed, of the Sentencing Procedure Act) alternatives. Non-custodial alternatives have included suspension of sentence (s 12, also now repealed). Currently, they include ICOs (s 7), community correction orders ('CCOs') (s 8) and conditional release orders ('CROs') (s 9). By s 7(1), a court that has sentenced an offender to imprisonment may make an order directing that the sentence (or sentences) be served by way of intensive correction in the community. By subs(2) of s 7 a court that makes an ICO is not to set a non-parole period for the sentence. [25] Because, as will be seen below, an ICO is a mode by which a sentence of imprisonment may be served, in contra-distinction to CCOs and CROs, it is not one of the alternatives required to be considered in the application of s 5: R v JCE [2000] NSWCCA 498; (2000) 120 A Crim R 18 at [15], as explained in Zamagias at [25]. Indeed, it would be logically wrong to do so, because s 7 proceeds on the premise that a sentence of imprisonment has been imposed. As it was put by McCallum JA in Wany v Director of Public Prosecutions (2020) 103 NSWLR 620; [2020] NSWCA 318: "An ICO is a way of serving a term of imprisonment; it cannot, at the same time, be an alternative to imprisonment" (at [18])." [26] Once s 5 has been applied, and satisfaction has been reached that no penalty other than imprisonment is appropriate, the next step is determination of the term of the sentence. It is of considerable importance that this be done in the correct sequence because some statutory alternatives (of which an ICO is an example) have been available only where a sentence of imprisonment has been imposed, (in contrast to CCOs and CROs, each of which is stated to be an option available to be imposed "instead of" a sentence of imprisonment). That was also so in the case of suspended sentences under the then s 12, the subject of consideration in Zamagias. [27] Another development since the decision in Zamagias is the introduction, by s 53A, of aggregate sentencing (inserted into the Sentencing Procedure Act in 2010, with effect from 3 March 2011). By subs (1) of s 53A a court sentencing an offender for more than one offence may, instead of imposing separate sentences for each offence, impose a single aggregate sentence with respect to all, or two or more, of the offences. Intensive Correction Orders [28] The final step in the process is to consider the mode by which the sentence is to be served. Currently, only two options are available – the sentence is to be served by way of full-time custody, or in the community by way of an ICO. Specific provisions apply where an ICO is under consideration or has been made. In circumstances where the court has made or is considering making an ICO, Pt 5 (ss 64 to 71) of the Sentencing Procedure Act applies. By s 66(1), the paramount consideration in such a decision is community safety. By subs (2) of s 66, the court is to assess whether making the order or serving the sentence by way of full-time detention is more likely to address the offender's risk of re-offending. By subs (3) the court is also required to address the provisions of s 3A (Purposes of sentencing), any relevant common law principles, and any other matters the court considers relevant. [29] By s 68 an ICO is not available if: (i) in respect of a single offence, the duration of the term of imprisonment imposed exceeds two years; or (ii) in respect of an aggregate sentence, the duration of the sentence exceeds three years." 1. Simpson AJA went on to conclude at [35] – [36]: "[35] Having regard to the approach taken in Zamagias, (which has repeatedly been endorsed in this Court and applied to the various sentencing options that have been enacted over the years: (see, for example, Douar v R [2005] NSWCCA 455; R v Assaad [2009] NSWCCA 182; Wany v DPP), it would be wrong to start with an intention to make an ICO and then to select the sentence in order to bring it within s 68 and activate s 7. A principled approach requires that the term of the sentence be first determined. If, and only if, that sentence (if an aggregate one) does not exceed 3 years (ie, is 3 years or less) or 2 years (for a single offence) consideration may be given to ordering that it be served by way of an ICO. [36] It being uncontroversial in this case that no penalty other than a term of imprisonment is appropriate, the first question for present determination is the term of the sentence. On the authority of Zamagias, Douar, Assaad and the cases that have followed them, that has to be done before, and without regard to, the manner in which the sentence is to be served. It would be contrary to those decisions to select the term of the sentence by reference to, and for the purpose of utilising, the alternative means, provided by s 7, by which the sentence may be served." 1. The applicant's suggested approach, however expressed, was contrary to this well-established application of the relevant provisions of the Crimes (Sentencing Procedure) Act. In the absence of a substantial departure from long standing sentencing practice, the submissions cannot be accepted. The sentencing Judge adopted the approach subsequently reiterated by Simpson AJA in Mandranis v R and, in the process, explained the way the finding of exceptional hardship operated in her reasoning towards the ultimate aggregate sentence: "Both parties concede that the s 5 threshold is crossed in respect of the offences; that is, there is no sentence other than some form of custody that can fully reflect all of the circumstances of the case. The defence has urged the Court to consider that, in all of the circumstances, hardship is of such a significance that the Court could appropriately craft a sentence that would permit the offender to serve it by way of an intensive correction order, rather than being entered into fulltime custody. In other words, the Court is asked to consider that hardship would remove the emphasis ordinarily to be given to general deterrence and the reflection of the objective gravity. Whilst the Court acknowledges that in some cases that can occur, I am of the view that the degree of general deterrence looms very large in this case. I am also of the view that the hardship can be appropriately reflected in a general allowance or a lenient allowance of special circumstances, noting that the mother-in-law of the offender is able to take on the care of the children, if not to the extent that the offender would wish, at least for period of time which would be reduced by the finding of special circumstances." [8] 1. The applicant presented a compelling subjective case and there was no challenge to the sentencing Judge's finding of exceptional hardship or special circumstances. The applicant was entitled to, and received, a 25% discount for her early pleas of guilty and a 10% discount for the plea to proceeds of crime charge in relation to which the plea was entered in the District Court. The sentencing Judge accepted that the applicant had good prospects of rehabilitation and that she was acting under the influence of her co-offender husband. Her Honour sentenced the co-offender (to the sentence set out at [14] above) in separate proceedings and approached the issue of parity carefully and in accordance with sentencing principle. The applicant received a significantly shorter sentence and no complaint was made as to the proportion between the sentences imposed on the two offenders. 2. The discounts for the pleas of guilty were applied to the indicative sentences which were nominated as follows: Charge Indicative Sentence Total Sentence Before Discount Discount A 43 months 48 months 10% B 18 months 24 months 25% C 21 months 28 months 25% D 15 months 20 months 25% E 30 months 40 months 25% F 21 months 28 months 25% G1-16 18 months (for each offence) 24 months (for each offence) 25% H 33 months 44 months 25% 1. There was no submission that the sentencing Judge erred in her approach to aggregate sentencing or that the discounts for the pleas of guilty were inadequate. The total amount of putative accumulation was modest. The individual indicative sentences were heavy but within a proper discretionary range given the seriousness of the offending. 2. The single ground was that the aggregate sentence was manifestly excessive. The approach to such a ground is well established. It involves a finding that the sentencing Judge reached a decision that is so unreasonable or unjust that: "… the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred." [9] 1. In Dinsdale v The Queen, [10] Gaudron and Gummow JJ emphasised the nature of an appeal based on this limb of House v The King: "In the circumstances of the present case, the question for the Court of Criminal Appeal was whether the result reached by the trial judge had been 'upon the facts ... unreasonable or plainly unjust [so that] the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance'. Was the sentence 'manifestly wrong'?" (Footnotes and citations omitted.) 1. In Lowndes v The Queen, [11] the High Court (Gleeson CJ, Gaudron, Gummow, Kirby, Hayne and Callinan JJ) emphasised the role of the sentencing Judge and the basis upon which an appellate court might properly interfere with discretionary sentencing judgments made at first instance: "The principles according to which an appellate court may interfere with such a discretionary judgment by a sentencing judge are well established. In their application to a Crown appeal against sentence they were summarised in R v Allpass and R v Clarke. Of particular importance in the present case is the principle that a court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion. This is basic. The discretion which the law commits to sentencing judges is of vital importance in the administration of our system of criminal justice." (Footnotes and citations omitted.) 1. This passage is particularly resonant in the present case. It may be that another sentencing judge, or a judge sitting on appeal, would have exercised the discretion differently or may held that the hardship to the children was such that the total aggregate sentence ought to have been three years or less, thus giving rise to the possibility that an ICO could be imposed. However, that is not the question for this Court. The approach adopted by Judge Culver was principled and the approach adopted by her Honour was within the proper exercise of discretion. The adjustment to the non-parole period based on a finding of special circumstances was substantial and reflected the finding of exceptional hardship. 2. In view of the compelling personal circumstances of the applicant and the hardship that would be endured by her children, the sentence imposed was a severe one. However, I am unable to conclude that the total aggregate sentence fell outside of the wide discretionary range available given the gravity of the offending. The proceeds of crime charge (Charge A) involved an amount of money exceeding $1.3 million. The offending against individuals and the electronic banking system was sophisticated and difficult to detect. Credit card fraud and offences involving the theft of identity and credit information are increasingly prevalent. The sentencing Judge held there was no relevant breach of trust because the ATM was owned by a different company. 3. The applicant continued to offend while on conditional liberty after being charged with the first round of offences on 10 October 2017. While the sentencing Judge found that this fact aggravated the applicant's moral culpability, her Honour said that the significance was "tempered in this case if one understands and accepts the relationship between the co-offender, Mr Fan, and the offender". [12] Despite the applicant's continued offending, her Honour also found that the applicant was of good character and had good prospects of rehabilitation. 4. This was a very serious case and a harsh sentence was the inevitable outcome, even on a plea of guilty and even in the context of the applicant's sad and compelling personal circumstances. 5. I would make the following orders: 1. Application for leave to appeal against sentence granted. 2. Appeal dismissed. ********** Endnotes 1. ROS 12. 2. Applicant's Submissions at [10]. 3. The appeal book contained only a portion of the sentencing Judgement relating to the husband but the sentence was referred to in the judgment relating to the applicant and there was no suggestion her Honour erred in her application of the parity principle. 4. ROS 31 – 35. 5. ROS 36. 6. Tcpt, 24/03/2021, p 3. 7. At [24] – [28]. 8. ROS 42. 9. House v The King (1936) 55 CLR 499; [1936] HCA 40. 10. Dinsdale v The Queen (2000) 202 CLR 321 at [22]; [2000] HCA 54. 11. Lowndes v The Queen (1999) 195 CLR 665 at 671-672; [1999] HCA 29. 12. ROS 28. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 18 June 2021