Rasel v R [2022] NSWCCA 239

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Rasel v R [2022] NSWCCA 239 Hearing dates: 19 September 2022 Date of orders: 18 November 2022 Decision date: 18 November 2022 Before: Bell CJ at [1]; Price J at [51]; Lonergan J at [52] Decision: 1. Grant leave to appeal. 2. Appeal dismissed. Catchwords: CRIME — appeals — appeal against sentence — misapplication of principle — sentencing for federal offences — consideration of the probable effect of a sentence or order on an offender's family or dependants pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where offender was sentenced before the decision of Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 — where sentencing judge did not take into account evidence of hardship to third parties for the purposes of s 16A(2)(p), finding that it did not support a finding of exceptional hardship — where error conceded by the Crown on appeal — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) CRIME — appeals — appeal against sentence — re-sentence — offences involving taxation fraud and identity theft — where offender used position as payroll officer to access identification information of other employees, produced false identification documents, and illegitimately obtained tax refunds by lodging false tax returns on behalf of others — where offender relied upon hardship to his family caused by a term of imprisonment, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where asserted hardship to third parties included the cessation of financial support from the offender, which was derived to some extent from offending conduct — where sentencing judge imposed a sentence of 4 years' imprisonment, with a non-parole period of 2 years and 2 months — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) SENTENCING — appeal against sentence — misapplication of principle — sentencing for federal offences — consideration of the probable effect of a sentence or order on an offender's family or dependants pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where offender was sentenced before the decision of Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 — where sentencing judge did not take into account evidence of hardship to third parties for the purposes of s 16A(2)(p), finding that it did not support a finding of exceptional hardship — where error conceded by the Crown on appeal — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) SENTENCING — appeal against sentence — re-sentence — offences involving taxation fraud and identity theft — where offender used position as payroll officer to access identification information of other employees, produced false identification documents, and illegitimately obtained tax refunds by lodging false tax returns on behalf of others — where offender relied upon hardship to his family caused by a term of imprisonment, pursuant to s 16A(2)(p) of the Crimes Act 1914 (Cth) — where asserted hardship to third parties included the cessation of financial support from the offender, which was derived to some extent from offending conduct — where sentencing judge imposed a sentence of 4 years' imprisonment, with a non-parole period of 2 years and 2 months — where resentence process undertaken, but no lesser sentence warranted in law pursuant to s 6(3) of the Criminal Appeal Act 1912 (NSW) Legislation Cited: Crimes Act 1914 (Cth) ss 16A(1), 16A(2)(p), 16BA Criminal Appeal Act 1912 (NSW) s 6(3) Criminal Code Act 1995 (Cth) ss 11.1(1), 134.2(1), 372.1(1) Anti-Money Laundering (Counter-Terrorism) Financing Act 2006 (Cth) s 137 Crimes (Sentencing Procedure Act) 1999 (NSW) ss 9 (as in force prior to 24 September 2018), 68(2) Cases Cited: Director of Public Prosecutions (DPP) (Cth) v Vina Money Transfer Pty Ltd [2022] FCA 665 Kaveh v R [2017] NSWCCA 52 Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 R v Girard [2004] NSWCCA 170 R v Nguyen (2006) 166 A Crim R 124; [2006] NSWCCA 369 Rodgerson v R [No 2] [2022] VSCA 154 Totaan v R [2022] NSWCCA 75; (2022) 400 ALR 578 Category: Principal judgment Parties: Faisal Hasan Rasel (Applicant) The Crown (Respondent) Representation: Counsel: