Kareem v R [2022] NSWCCA 188

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Kareem v R [2022] NSWCCA 188 Hearing dates: 21 February 2022 Decision date: 05 September 2022 Before: Price J at [1]; N Adams J at [2]; Ierace J at [4] Decision: (1) Application for leave to appeal granted. (2) Appeal allowed. (3) Quash the sentence imposed in the District Court and in lieu thereof sentence the applicant to an aggregate term of imprisonment of 3 years 7 months that commenced on 16 December 2020 and will expire on 15 July 2024 with a non-parole period of 2 years that will expire on 15 December 2022. Catchwords: CRIME – Appeals – Appeal against sentence – Agreed Facts – where applicant pleaded guilty to two fraud offences and one attempted fraud offence – where applicant engaged in joint criminal enterprise to defraud bank with co-offender – where each offender had a separate set of agreed facts on sentence – where co-offender's agreed facts suggested that applicant played a larger role than the applicant's agreed facts – where sentencing judge extracted section of co-offender's agreed facts which outlined their respective roles in judgment relating to the applicant – where sentencing judge found that applicant was less culpable – where same finding on objective seriousness made for both offenders – whether sentencing judge erred in sentencing applicant on the basis of material in co-offender's agreed facts – Court of Criminal Appeal noted that agreed facts for sentence should not be "unnecessarily complex" CRIME – Appeals – Appeal against sentence – Committing offence in area of professional qualifications as aggravating factor – where applicant has university level accounting qualifications and worked as a financial controller – where applicant's role included transferring monies and retaining records concerning applications for credit by false identities – where detailed spreadsheets used to facilitate scheme found on applicant's computer – whether sentencing judge erred in finding applicant used his "skills as an accountant" to commit the offences CRIME – Appeals – Appeal against sentence – Third party hardship as subjective circumstance – where applicant has wife and two children, including a son with autism spectrum disorder – where applicant relied on evidence suggesting his imprisonment would cause adverse financial impacts to his family – where sentencing judge referred to financial hardship to family and "other hardship" – where sentencing judge found that Edwards hardship was not established – where applicant did not rely upon impact of family hardship on himself at sentencing hearing – whether sentencing judge erred in failing to properly consider hardship to family – whether sentencing judge erred in failing to consider impact of family hardship on the applicant Legislation Cited: Crimes Act 1900 (NSW), ss 192E, 193D Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5, 44, 68 Cases Cited: 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 Category: Principal judgment Parties: Zeeshan Kareem (Applicant) Regina (Respondent) Representation: Counsel: G Bashir SC and R Khalilizadeh (Applicant) E Wilkins SC (Crown)