District Court New South Wales Medium Neutral Citation: R v Foster [2022] NSWDC 467 Hearing dates: 12 April 2022; 28 April 2022; 6 May 2022 Date of orders: 6 May 2022 Decision date: 06 May 2022 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: An aggregate term of imprisonment of three years, seven months, with a non-parole period of two years, two months: at [93]. Catchwords: CRIME — Carriage/telecommunication service offences — fraud CRIME — Money laundering — Dealing with money suspected of being proceeds of crime SENTENCING — Aggravating factors — Financial gain — Record of previous convictions SENTENCING — Mitigating factors — Plea of guilty SENTENCING — Penalties — Imprisonment SENTENCING — Relevant factors on sentence — Co-offenders — Deterrence — Establishing relevant matters — Moral culpability — Objective seriousness — Offence forming part of a course of conduct and representative offences SENTENCING — Subjective considerations on sentence — Drug addiction — Drug addiction — Mental illness — Protective custody Legislation Cited: Crimes Act 1914 (Cth) Criminal Code (Cth) Mental Health Act 2007 Cases Cited: Bugmy v The Queen (2013) 249 CLR 571 Devaney v The Queen [2012] NSWCCA 226 Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 [2010] NSWCCA 194 DPP v Hill & Kamay [2015] VSC 86 Dungay v The Queen [2020] NSWCCA 209 FL v The Queen [2020] NSWCCA 114 Imbornone v R [2017] NSWCCA 14 Khan v The Queen [2022] NSWCCA 47 Lloyd v The Queen [2022] NSWCCA 18 Mills v The Queen [2017] NSWCCA 87 Nabalarua v The Queen [2020] NSWCCA 68 Prince v The Queen [2020] NSWCCA 268 R v Booth (unreported,3 April 2007, NSWDC, Williams DCJ) R v Columbus [2007] QCA 396 R v Eliadis [2017] ACTSC 193 R v Han (unreported, 29 October 2010, NSWDC, Solomon DCJ) R v McNair-Swinksi (unreported, 12 February 2007, Queensland District Court, Rackemann DCJ) R v Qutami (2001) 127 A Crim R 369 R v Verdins (2007) 16 VR 269 Stevens v The Queen [2009] NSWCCA 26 Totaan v The Queen [2022] NSWCCA 75 Category: Sentence Parties: Regina (Commonwealth Office of the Director of Public Prosecutions) Benjamin Foster (Offender) Representation: Ms S Goodwin (Crown Prosecutor) Mr A McGrath (Counsel for the Offender) File Number(s): 2020/347112 Judgment 1. Mr Benjamin Foster, born in 1984, has spent a significant period in custody between June 2009 and July 2014 having been convicted of fraud, child pornography and conspiracy charges. He then was in custody for some time between November 2016 and March 2017. 2. He was admitted as an involuntary patient on 20 March 2017 at the Cumberland Hospital having been transferred from the Metropolitan Remand & Reception Centre and having been referred pursuant to the Mental Health Act 2007. He was experiencing psychotic symptoms including paranoid and persecutory delusions involving a common-held conspiracy regarding "reptilians and grays" 3. He absconded from the Cumberland Hospital on 6 April 2017, a month after his admission. There does not appear to have been any attempt to locate him until he was arrested in September 2020 for the offences which bring him before the Court today. 4. Professor David Greenberg had provided a report to the Court in February 2017 after an examination of Mr Foster where the professor diagnosed a psychotic illness of polysubstance use disorder and queried whether autistic spectrum disorder was also present. He was of the view that Mr Foster was mentally ill person suffering from a mental illness as defined within the Act. 5. A further report around that time of the clinical nurse consultant at the Central Local Court reported a number of bizarre beliefs and experiences having been recounted by Mr Foster against a background of illicit drug use from the age of 13. He was then seen to be at a high risk of serious harm to himself and others due to his current mental state and if his condition remained partially treated, he was at a high risk of further deterioration with result in reduced capacity for recovery and increased likelihood of development of chronic psychotic illness. 6. His re-admission to the mental health facility on 22 September was against the background of a report that he was on his laptop engaged in online disruption to the recent US presidential elections when the door to his apartment was kicked in by Police. His behaviour prompted the police to bring him to Concord Hospital where he was found to be paranoid about the Chinese and Russian mafia pursuing him because he was involved in criminal activities for both organisations. 7. He stated a complex belief system involving reptilian world domination using the human reptilian brain stem. He detailed his complex historical and current involvement in credit card and identity fraud, drug supply as well as being involved in tampering with the results of the US presidential elections. Although it was noted that there were some logical components to his statements, the majority of his conspiracy theories were also present on several internet websites and acknowledged that reading about his beliefs on the internet reinforced for him their likely veracity. He was suspicious and paranoid of the treating team but expressed a desire for treatment for his distressing auditory and visual hallucinations. 8. He was deemed fit for discharge on 4 December 2020 and was then taken into custody and has been in custody since that time. He reported while at Cumberland a delusion or belief centring on a common one world reptilian depopulation COVID-19 conspiracy theory and he believed that reptile overlords communicated with him through his spinal cord because he shared this in common with them. He also believed he received signals through light sources, and they blinked in Morse code at him. He was able to read binary code in his mind and that is why he had been chosen for the task. He said that he has met people in the past who resembled police officers and that causes him great distress as when they are as introduced as someone else to him, he states that they may be involved in the mafia plot to dismember him. 9. Having been detained in custody since 4 December 2020 he was sentenced by a Magistrate to terms of imprisonment, the commencement date of which remains a mystery to the parties. On 3 February 2021 the offender was sentenced to three separate terms of imprisonment all commencing on 3 October 2020, one being four months for breach of reporting conditions in relation to child protection orders, a sentence of 12 months with a six month non parole period in relation to fraud offences, and a further five months in relation to fraud offences. 10. Although there is no indication as to why the Magistrate commenced those terms of imprisonment on 3 October 2020, I accept Mr McGrath's submission for the offender that the period between September and December 2020, when he was an involuntary patient at the Mental Health Unit, should be taken into the account, and that in the exercise of my discretion considering questions of totality and accumulation a term of imprisonment, which it is conceded should be imposed, should commence on 22 December 2020. 11. Mr Foster has pleaded guilty at an early stage, in circumstances justifying a 25% discount on sentence for the utilitarian value of the pleas to three separate counts: 1. Sequence 5, an offence contrary to s 372.10 of the Criminal Code (Cth), that between 14 November 2019 and 22 September 2020 he did deal in identification information using a carriage service with intent. The offence carries a maximum penalty of five years imprisonment 2. Sequence 7, an offence contrary to s 474.14(2), of the Criminal Code (Cth), that between 4 October 2019 and 22 September 2020 he did use equipment connected to a telecommunications network to facilitate the commission of fraud. The offence carries a maximum penalty of two years imprisonment. To be taken into account on a s 16BA schedule attached to this sequence is: 1. Sequence 11, an offence contrary to s 400.6 of the Criminal Code (Cth) of knowingly deal with the proceeds of crime in the amount $27,925. 1. Sequence 10, an offence contrary to s 308.1 Criminal Code (Cth) of possess a controlled drug, namely 4.1g of methamphetamine which carries a maximum penalty of two years imprisonment. 1. A co-offender, Mr Smith, is to be sentenced by me next week and the facts in this case and the Crown submissions to a limited extent address questions of parity but in the absence of any finalisation of Mr Smith's matter I do not need to say anything further about that at present. 2. The evidence in the case is contained in the Crown bundle of agreed facts and other material, and a significant quantity of subjective material relied upon by the offender. The offender did not give evidence and although the Crown asserts that the matters contained in the subjective material should be treated with a degree of caution in accordance with cases such as R v Qutami (2001) 127 A Crim R 369 and Imbornone v R [2017] NSWCCA 14. It must be remembered as McCallum JA said in Lloyd v The Queen [2022] NSWCCA 18, a case relied upon by the Crown today, that the general observation by Smart AJ in Qutami is not a principle; if it were, it would be a wrong principle which requires correction, stating at [45], Smart AJ's general observation in Qutami is sometimes mistaken for a principle. It is not. If it were, it would be a wrong principle which required correction. Leaving aside the fact that the rules of evidence do not apply to proceeding on sentence unless the court so directs, the weight to be given to particular kinds of evidence in such proceedings cannot be pre-empted as a matter of principle. The weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge" 1. All that Smart AJ had done in that case, was to make a general observation that very considerable caution should be exercised in relying on statements made by a prisoner to a psychiatrist when a prisoner does not give evidence. As McCallum JA said, "the weight and cogency of the evidence is always a matter for the individual assessment of the sentencing judge". 2. In cases where a report is not challenged, the correct approach is as stated by Allsop P in Devaney v The Queen [2012] NSWCCA 226 at [88] (which has been cited with approval in a number of other cases), It is one thing to discount admissible statements made to a psychiatrist or psychologist if the offender is not prepared to give evidence to the same effect: Qutami at 377 [58]-[59] and 380 [79] and [83] and Palu at 184-185 [40] and 175 [1] and [2] (although care needs to be taken not effectively to exclude admissible evidence by a process going beyond an assessment of weight); it is quite another to lessen the effect of the opinion of a professional psychiatrist, without cross-examination, when that opinion is based on history. In most cases, a psychiatrist will form a diagnosis from what is said to her or him; that is the very nature of the professional expertise being deployed. Part of the professional skill of the psychiatrist is the assessment of the history - how it accords with hypothesised and formed views of the professional. To say that the applicant was manipulating the psychiatrists is to criticise the professional opinions of the psychiatrists and should be put to them. The sentencing judge should not have diminished the weight of the psychiatrists who came to the view that the applicant had some insight into his condition." 1. As Mr McGrath puts here the opinions that he relies upon in a report of a psychiatrist, Dr Martin, based not only upon Dr Martin's history taking at the time of the consultation but on a lengthy history of contemporaneous records of treatment for serious mental illnesses. I accept that the histories contained in the various documents are a reasonable basis upon which to proceed, notwithstanding that the offender has not been tested on them. 2. The principal offences, that is sequences 5 and 7, relate to a scam involving the widespread dissemination of SMS "phishing" communications known as "smishing" whereby a recipient receives a scam SMS purporting to be from banks and telecommunication providers. The recipient is induced to click on a hyperlink within the SMS and unwittingly disclose personal identity information. SIM boxes were used to perpetuate the scam, these being telecommunication devices capable of utilising multiple SIM cards to distribute many SMS messages to multiple recipients simultaneously. 3. In relation to sequence 7 the offender: * used equipment connected to a telecommunications network to facilitate the commission of fraud by orchestrating and carrying out a smishing campaign in September 2020 targeting customers of the Commonwealth Bank. * He tested domains for the purposes of a smishing campaign targeting customers of NAB, Westpac and Optus between June and August 2020. * He used equipment connected to a telecommunications network to facilitate smishing fraud by himself and others by developing and testing programs and domains and directing others to carry out acts related to smishing in furtherance of the fraud. 1. The offender engaged in the course of conduct involving ongoing dealings in identification information, primarily financial particulars, obtained from and used in furtherance of his fraud. 2. The devices used by the offender for the purpose of the smishing and the associated fraud included a Huawei brand internet dongle, two SIM cards alleged to have been used in the SIM box and an iPhone 11. 3. The detailed facts extend over many pages of the agreed facts document, but I accept that the role of the offender, which is of course a principal matter to consider in the sentencing process, has been accurately summarised by the Crown in written submissions. 4. Sequence 7 is clearly a rolled-up offence relating to thousands of connections to a telecommunications network over a period of months to facilitate separate frauds against a large number of individuals. This offender was centrally involved in the set-up and execution of the infrastructure used in commit the "smishing" campaigns that constitute the fraud element of the offence. His conduct involved the following: * He contributed considerable technical expertise to the smishing project, being responsible for coding Python script, developing a program to send large volumes of SMSs from SIM boxes, setting up dummy bank websites and using SIM boxes. * He engaged in developing and testing fraudulent domains for the purposes of smishing. The testing involved in receiving SMS messages on his personal device and clicking on the links therein. * The frequency of the messages sent, and their content is consistent with them having originated from a SIM box controlled by the offender using Python script. Domain names referring to Westpac and Optus, companies from which the spam messages purported to originate were located on his computer. He engaged in port testing. * As part of the smishing campaign involving fraudulent messages purporting to be from the Commonwealth Bank, the offender accessed a fraudulent URL, commbank.online, 593 times. He also used the Huawei dongle under his control to access multiple domain names associated with the Commonwealth Bank on hundreds of occasions. * He accessed the China Skyline server 6,177 times in September 2020. As a result of Python script being transmitted to the server fraudulent messages could then be sent out. He directed the co-offender Smith to fraudulently obtain money from the bank accounts that had been obtained through smishing and he was provided with reports from Smith as well as some of the money that Smith obtained. * He told Smith how to create sub domains and to insert business names for the purposes of smishing and asked him to register domains. * He told Smith to monitor the domain "while we phish", * He had Smith obtain and provide him with SIM cards for the fraud * He directed "phishcakes" and "harihari" to fraudulently obtain money from the bank accounts that had been obtained through smishing, * He directed another identity known as "7am" to register certain domain names. 1. He was sufficiently senior in the fraud project to have visibility of the revenue being generated by the offending. I am asked to and do infer beyond reasonable doubt, that it was an amount which significantly exceeded the quantum of $27, 925 found in his home. Those funds are, of course, the subject of sequence 11, knowing deal with proceeds of crime and are to be taken into account on s 16BA schedule attached to sequence 7. 2. As to sequence 5, as a result of the smishing campaigns the offender obtained and dealt with identification information including identity documents and financial particulars of victims. Thousands of pieces of identity information were obtained by the offender, much of it exchanged with others and he maintained logs and records of the information. 3. The information included images of driver's licences, images of bank cards, sets of credit card details including card numbers and expiry dates, a link to a Google spreadsheet containing personal particulars, mobile phone numbers and dates of birth. 4. A number of conversations are set out in the agreed facts and it is agreed that these are consistent with the offender sharing identification information with others for the purposes of those individuals "cashing in", that is, using the credentials to obtain funds from victims. 5. Sequence 5 is also a rolled-up offence relating to a number of episodes of criminality, and as the Crown puts it in relation to both sequence 5 and 7. the fact that there are multiple episodes of criminality will usually mean that the objective seriousness of the offending is greater than if there had only been one episode. 6. On 22 September Australian Federal Police officers executed a search warrant at the offender's home in Burwood, locating the following items: * Apple iPhone 11, * A Huawei dongle, * Two SIM boxes, * A Dell laptop, * A computer tower, * 4.1 grams of methamphetamine (sequence 10); and * $27,925 in cash (sequence 11). 1. There was evidence on his phone including videos of him running a program called "XiaoSMS". Xiao SMS was a program developed by the offender that allowed for a higher volume of SMS messages to be sent by SIM boxes. 2. He had a conversation on WeChat on 1 September 2020 and said, "I think my software has one more advantage, it evades SMS spam filters…" identifying XiaoSMS. 3. Other material located on his devices include: * images and videos of testing of a smishing site related to Westpac; * a copy of a report published by the ACMA on combatting scams; * video recordings of a Linux terminal operating with scripts running on the screen relating to phishing and port testing; * a video showing spreadsheets containing what appeared to be personal information obtained from victims; * a video showing access to Westpac accounts including one showing a Westpac account with a balance of $200,000; * a video showing phishing victim data appearing on a screen with the offender repeating the words "phishy here phishy" as more data is displayed. 1. In conversations in WeChat with "Yuri" between July and September 2020 the offender referred to results getting "parsed and uploaded to google sheets" , he went on to say, "that's where my team work on the data … it's only two people right now and we've done like 2 operations … first time made 60K … lost 40K to lack of experience … didn't realise about the money laundering detection". 2. There was a conversation on WeChat with a "Miranda" in which he told her that he had made "$330,000 from one million". Miranda asked whether it was "the group's money" and the offender responded that the remaining money was "for [his] partners". 3. The Crown case bundle contains a helpful statement from Australian Federal Police Officer Cutler which explains and clarifies some of the terms used in the brief of evidence. 4. The Legal Aid solicitor acting for Mr Foster sent a letter of 11 November 2021 to Dr Adam Martin, forensic psychiatrist, seeking his opinion. Dr Martin's report contains a history which I accept. Dr Martin reports that Mr Foster's father was half Aboriginal but he does not identify himself as Aboriginal. He said he did not have Centrelink income and he had been living off the proceeds of crime, he has three children aged four, 12 and 13 who lived with their respective mothers. He said he was on protection in custody because of previous charges in relation to child abuse material and that is consistent with Correctives records that are in evidence. 5. He was being treated with anti-psychotic medication in the context of a diagnosis of schizophrenia which he acknowledged involved him hearing voices and stuff like that. When asked about the possibly association between psychotic symptoms and the offending he said that he had been aware of the legal wrongfulness of his actions and said "I knew what I was doing" although also referring to believing that he had to evade the American government and hence had lived off the grid as a result of psychiatric phenomena. 6. The offender used drugs from his early teenage years and used methamphetamine on a daily basis since 2004. He occasionally used heroin and cocaine and purchased synthetic hallucinogens off the internet. 7. He had had one attempt at rehabilitation in 2008. 8. He said his childhood was not good, his mother had been a drug addict and his father had frequently been in gaol because of drug supply. 9. He was sexually abused at various times between the ages of six and eight by a neighbour. 10. He left school in Year 11 following heavy cannabis use. 11. He had not been employed. His computer skills were self-taught. His longest relationship was for five years between 2004 and 2009. He does not have any contact with the children and Family and Community Services have been involved and their mothers have allegedly also had drug problems. 12. He appeared reasonably future focused and expressed a plan to get a normal job and live a normal life. He acknowledged that the people he was targeting in his offending were already pretty vulnerable. 13. Dr Martin noted his criminal history dating back to 2003 with multiple charges and the previous diversion to the mental health system in 2016.Dr Martin had regard to the notes of the mental health admissions. 14. The Crown in particular focused on Dr Martin's responses to questions posed by the solicitor. The personal background of the offender was summarised as including "adverse childhood experience and poor parental modelling, apparently disruptive behaviour at school and no further education subsequently. He has a lengthy history of offending behaviour. He described regular drug use from the age of fourteen and has more recently been diagnosed with a psychotic illness [schizophrenia] and treated accordingly" 1. The second question posed by Mr Foster solicitor asked was, "Could you please consider if there's any relationship between his personal background and his offending". In response Dr Martin said The issue between any nexus or relationship between his personal background and his offending is complicated. The offending as described appears highly organised and with the obvious aim of stealing money from other' bank accounts presumably for personal gain an to support his lifestyle. Generally, a person with major mental illness complicated by substance use on a background of adverse childhood experience might be more likely than the average person to engage in offending behaviour and for instance would be prone to making poor choices However, the offending appears highly organised, and in my view, us not directly explained by bizarre thought process even though it would seem that he was mentally ill at the time of his arrest 1. The fourth question asked, "What was the nature and extent of any mental illness/condition at the time of offence?" 1. Dr Martin responded, "Based on the medical material provided it is highly likely that he was mentally ill at the time of the offending and the ambulance records note for instance that he appeared confused and paranoid. He was not taking anti-psychotic medication at this time, and was using methamphetamine and therefore it is highly likely that he was grossly mentally ill and furthermore that his "living off the grid" was in the context of paranoid beliefs" 1. Question five asked, "To what extent (if any) is any such illness/condition likely to have: (a) Contributed to the offending behaviour, and/or (b) Affected his ability to appreciate the seriousness and/or consequences of his actions?". 1. Dr Martin answered. "… in my view, while mentally ill, his judgment would have been impaired, although the given the extent of the organisation and his expression of knowledge of wrongfulness, in my view, he would have been able to appreciate the seriousness and potential consequence of his actions to a reasonable degree." 1. Dr Martin noted that a person with schizophrenia and a background of sex offending (possession of child abuse material) would be more vulnerable than the average person in custody. He needs assertive psychiatric monitoring pursuant to a community treatment order where medication can be mandated., 2. He also noted that the offender expressed regret for the offending. 3. There is a very lengthy affidavit of the solicitor which includes detailed Justice Health records outlining mental illness issues and treatment, and lengthy detailed reports of the type which the Court has seen frequently during the COVID pandemic outlining the very significant restrictions imposed on inmates, involving lengthy lockouts and periods of quarantine over the past periods since his confinement. 4. There was a letter from the offender's mother who says that her son, had a disruptive childhood through no fault of his and she feels that this has contributed to his problems in adulthood. She says he has spoken to her about these crimes and said that he regrets causing his victims stress and worry. He has some psychological issues, which is an understatement to say the least, and that she knows that he uses computers as a way to control this. She said that when Ben is due for release from gaol he is welcome to stay with me, and that whenever Ben has stayed with her in the past he has not committed crime. 5. There is a brief letter from the offender which says, 6. "I want to take this opportunity to apologise for my offending behaviour. 7. My offending took advantage of the vulnerable and the unwary in society, and for this I am truly sorry. 8. I hope I can begin to use my technical abilities to society's benefit not its detriment in future times. 9. Yours sincerely, 10. Benjamin Foster". 11. The Crown provided a bundle of cases including DPP v Hill & Kamay [2015] VSC 86, R v Eliadis [2017] ACTSC 193, R v Columbus [2007] QCA 396, R v Booth (unreported,3 April 2007, NSWDC, Williams DCJ), R v McNair-Swinksi (unreported, 12 February 2007, Queensland District Court, Rackemann DCJ) and R v Han (unreported, 29 October 2010, NSWDC, Solomon DCJ). I have read all of the judgments in that bundle provided by the Crown. Neither counsel suggests that there are any relevant comparators, but they do indicate the way in which the courts have dealt with vaguely similar types of matters in varying degrees of objective and subjective difference to the present case. 12. The submissions for the Crown point to the general principles to be taken into account in sentencing pursuant to Pt 1B of the Crimes Act 1914 (Cth). 13. In sentencing for offences involving identity fraud appellate courts have emphasised the importance of general and specific deterrence, as said by McClellan CJ at CL in Stevens v The Queen [2009] NSWCCA 26. 14. Speigelman CJ further noted in Stevens at [6] "The ease with which identity crimes can be committed has expanded well beyond the traditional means of stealing mail or eavesdropping to obtain personal data. The new techniques are multifarious and have a facility of execution which is, of itself, such as to require that sentencing for such offences gives considerable weight to general deterrence". 1. His Honour cited "phishing" as an example of these new techniques by which identity crimes could be committed. 2. Those sentiments expressed 13 years ago in Stevens are still apt given the prevalence of this type of offending and they have been endorsed in subsequent decisions of the court. 3. The nature and circumstances of the offence and the role of the offender must obviously be taken into account. As the Crown points out this was a sophisticated enterprise with the goal of defrauding everyday members of the community in scheme designed to deceive them into unwittingly handing over their personal details, believing they were dealing with a legitimate company. 4. The offending was highly technical in nature, involved a large degree of planning and organisation and expertise in IT and communications. 5. This offender was deeply involved in the scheme, using his knowledge and skills to facilitate the sending of messages and maintaining logs of the information received. He boasted about his campaign having successfully worked through the use of stealth technology and he directed others as to the operations. He instigated the process of obtaining and using domains and business names as well as recruiting, directing and teaching others how to engage in the same conduct. 6. As to sequence 5 he dealt with thousands of sets of identification information as a result of the campaigns and exchanged it with other people. The spread of the information makes it difficult, if not impossible, to trace who had access to it and the purposes that it might be used for. 7. Clearly the offending involved a course or a series of criminal acts of the same characters, over a period of many months. 8. As to any injury, loss or damage resulting from the offence, as the Crown notes the agreed facts show the offender can be linked to losses from the Commonwealth Bank campaign of $64,446. There is as I have indicated a conversation in which he claims to have made $330,000 from a million dollars. But I accept, as I have indicated, the true amount of the loss is surely significantly greater than $64,000 demonstrated in the agreed facts but the extent of that cannot be determined. 9. It is clear that the scam was implemented for financial gain. 10. I accept that he has expressed remorse to the Court, to his mother and to Dr Martin. 11. I take into account, as I have indicated, the plea of guilty and the utilitarian values of the pleas. 12. I take account of his previous criminal history and the terms of imprisonment that have been served for similar types of fraud offending, although perhaps not with the degree of sophistication demonstrated here, although the Court's unable to know the precise details of the earlier offending. 13. As to objective seriousness, it is important to note that it is separate but related to assessment of moral culpability. As Beech-Jones J said recently in Khan v The Queen [2022] NSWCCA 47 at [9], An assessment of the "objective seriousness" of an offence and the "moral culpability" of the offender are two separate but related concepts of importance, or at least relevance, to the sentencing process." 1. In light of recent consideration by the court it is appropriate to approach the question of moral culpability and its bearing on the assessment of objective gravity in the following way, namely objective gravity is distinct from or although closely related to moral culpability and the two should be given separate consideration with the latter then informing the former. A court must clearly identify the features taken into account with respect to both objective gravity and moral culpability. 2. As to the question of whether a court should indicate a range or position on a notional range, I bear in mind what was recently said by Hulme J in Mills v The Queen [2017] NSWCCA 87 in pointing out the problems with that type of approach, namely in understanding what a judge means by a description of where an offence falls within a range of objective seriousness. What is important is to fully identify the facts, matters and circumstances which bear on the assessment of the gravity of the crimes. It is not necessary, as the court said in FL v The Queen [2020] NSWCCA 114 (at [60]), to express the conclusion reached by reference to a position within a range or by resorting to mathematical terminology. 3. The Crown cites R v Verdins (2007) 16 VR 269 and its subsequent consideration by McClellan CJ in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 [2010] NSWCCA 194 on the principles to be taken into account when considering a mental illness. The Crown's position is that the report of Dr Martin suggests that there is no nexus between the offending and the offender's personal background. I have set out Dr Martin's views, and the Crown submits that the offender remains an appropriate vehicle for specific and general deterrence and that it should not be moderated given Dr Martin's assessment of his ability to appreciate the consequences of his offending. 4. I have to take into account the prospects of rehabilitation and although his mother has offered accommodation on his release it is clear from the medical material that he requires intensive continuing supervision and treatment and his prospects of rehabilitation must be guarded against the background that I have outlined. 5. In light of the cases to which I have referred I do not think it particularly helpful to enter into the debate as to whether sequence 7 is at the high-range of objective seriousness or below the mid-range as Mr McGrath submits. I have identified the features of the offending in relation to both sequence 7 and sequence 5, the Crown having submitted that the offending falls towards the higher range of objective seriousness for that offence as well, and Mr McGrath again submitting that it was at or below the mid-range. 6. Both of the principal sequences are very serious episodes of offending, given the facts that I have outlined, but they do not justify a submission of the order suggested by the Crown, namely that they should be towards the maximum penalty for those allowed for the offending. 7. Mr McGrath describes the offending period as being a lot of frenetic activity by Mr Foster consistent with his disturbed mental states, and notes that only seven of the customers of the CBA were actually defrauded, but it could not be said that his offending was relatively unsuccessful, indeed it was on the material that is available, attempted with some degree of success in obtaining information and significant amounts of money from unwitting victims. That is consistent with Mr McGrath's acceptance that thousands of pieces of identity information being obtained is a very significant amount. 8. As to sequence 10, the possession of 4.1 grams of methamphetamine, I accept that that is not a very serious example of this offending. Given his long-term use of the drug and there being no evidence of supply or anything to contradict the assertion that he was a personal user of drugs and that his drug addiction was related to his mental illness. 9. I think it would be unduly harsh to regard Dr Martin's views as eliminating any possibility of consideration of mental illness in assessing moral culpability and objective seriousness. I accept that Dr Martin was indicating that although he clearly had some understanding of the offending, the mental illness was a contributing factor to it, which is as high as Mr McGrath puts the mental illness. He does not assert that mental illness provides an excuse for the offending, but it is a background against which the offending is considered and according to the psychiatric evidence, in my view, had some significance in De La Rosa terms. Given that, Dr Martin concludes that while mentally ill his judgment would have been compared. 10. It is clear that there is no requirement that a causal link be established between a deprived background and the commission of offences. In accordance with the principles in Bugmy v The Queen (2013) 249 CLR 571, the court has said as much in many cases. As the court recently said in Dungay v The Queen [2020] NSWCCA 209, a causal link may not be needed in order to have regard to Bugmy factors. The relevance of a deprived background goes to both the head sentence and the non-parole period: Nabalarua v The Queen [2020] NSWCCA 68. 11. In Prince v The Queen [2020] NSWCCA 268 the court confirmed the principle that an offender's background of depravation may be relevant to a reduction in moral culpability and the weight to be given to general deterrence. 12. Here the background to which I have referred is a matter of some significance when assessing moral culpability and objective seriousness, and it is also relevant to the question of deterrence. Mr McGrath acknowledges the need for a component of specific deterrence and acknowledges that the prospects of rehabilitation are as I have indicated contingent upon him receiving ongoing treatment. 13. I must also take into account pursuant to s 16A(2)(k) of the Crimes Act 1914 (Cth) that the punishment is adequate for the offence when looking at questions of totality, Mr McGrath submits there should be a significant degree of concurrency between particularly sequences 5 and 7 as they are part of the same smishing scheme, and while they are linked the Crown acknowledges that there should be some concurrency applied. 14. It is not suggested that any hardship under s 16A(2)(p) is relevant given Mr Foster's acknowledgement that he has no involvement with his children, and there is no evidence of hardship on family or dependants, bearing in mind as the court recently said in Totaan v The Queen [2022] NSWCCA 75 that one does not have to establish expectational hardship in any event. 15. I take into account the conditions under which he has been in custody and presumably will remain, his mental health problem, that he is in protective custody and he has and will endure significant additional depravation of liberty due to the COVID-19 lockdowns. 16. For those reasons the orders that I will make are: 1. The offender is convicted of each offence. 2. Taking into account a 25% discount for the pleas of guilty the indicative sentences are: 1. Sequence 5 – 20 months 2. Sequence 7, taking into account the s 16BA schedule matter – 13 months 3. Sequence 10, four months. 1. I impose an aggregate sentence of three years and seven months commencing 22 December 2020. 2. I impose a non-parole period of two years and two months, expiring 21 February 2023. 3. By consent, I make forfeiture orders pursuant to the short minutes of order dated 6 May 2022. ********** 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: 12 October 2022