ALI v R [2008] NSWCCA 60

New South Wales Court of Criminal Appeal

CITATION: ALI v R [2008] NSWCCA 60 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 14 March 2008

JUDGMENT DATE: 14 March 2008

JUDGMENT OF: Bell JA at 1; Adams J at 2; Latham J at 6

EX TEMPORE JUDGMENT DATE: 14 March 2008

DECISION: 1. Leave to appeal granted 2. Appeal dismissed.

CATCHWORDS: SENTENCE APPEAL - Knowingly deal with proceeds of crime - no question of parity - no question of principle raised by Appeal.

LEGISLATION CITED: Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) Crimes Act 1900

CATEGORY: Principal judgment

PARTIES: Ashiq Ali - (Applicant) Regina - (Respondent)

FILE NUMBER(S): CCA 2007/3120

COUNSEL: WP Lowe - (Applicant) P Miller - (Respondent)

SOLICITORS: Jacksons Law - (Applicant) S Kavanagh (Solicitor for Public Prosecutions) - (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0192

LOWER COURT JUDICIAL OFFICER: Conlon SC DCJ

LOWER COURT DATE OF DECISION: 6 July 2007

IN THE COURT OF CRIMINAL APPEAL 2007/3120

BELL JA ADAMS J LATHAM J

14 MARCH 2008 ASHIQ ALI v REGINA Judgment 1 BELL JA : I agree with Latham J. 2 ADAMS J: I also agree, but I wish to add some comments of my own. 3 We live in a society in which documents used in financial transactions and the identification of individuals has become increasingly important. Maintaining the integrity of those documents and their use has a significant public interest quite apart from that in punishing theft, and those who wish to profit from it. Maintaining the security of those documentary systems has become a major imposition on the ordinary undertaking of business and travel. The crimes committed by the applicant do not merely affect the particular individuals or corporations directly involved, but form part of overall criminal activity which imposes substantial costs on the community. So considered, it is to my mind impossible to reasonably suggest that the sentences imposed on the applicant were excessive. 4 So far as parity is concerned it seems to me that as a matter of principle every case where an issue arises about the imposition of equal justice, a court is bound to consider whether or not what it does is consistent with that fundamental principle of the administration of justice. And this enquiry is not to be put aside, or regarded as insignificant because of accidental technical processes. In this case, however, as I see it the real complaint of the applicant is not that the that the sentencing Court dealt with him unfairly as distinct from the way in which the Local Court dealt with his accomplice. His real complaint is that it was unfair that he should be charged with a very much more serious offence than that of the person whom he employed to assist him to carry it out. One has only to state that proposition to see at once that there was, at all events, a reasonable basis for the prosecuting authorities proceeding as they did. But, even if the Court was unaware of the reasons for which the prosecuting authorities proceeded against the applicant's co-offender as they did, the Court cannot have - and ought not to have - any control or influence over the laying of charges. That is outside the judicial function. 5 Otherwise, I entirely agree with what Latham J has said. 6 LATHAM J : The applicant seeks leave to appeal against the severity of sentences imposed upon him by Conlon SC DCJ (the Judge) on 6 July 2007, following the applicant's pleas of guilty to 6 offences arising out of the applicant's participation in the systematic production and sale of false identity documents. 7 The offences and the sentences imposed were :- i) Knowingly deal with proceeds of crime ($490,000) pursuant to s 193B(2) Crimes Act 1900, carrying a maximum penalty of 15 years imprisonment. A further 10 offences (8 of possessing a false instrument with intent to use (s 302), one of knowingly possess a false travel document (s 22(1) Foreign Passports (Law Enforcement and Security) Act 2005 (Cth)) and one make or possess an implement for making a false instrument (s 302A)) were taken into account on a Form One when sentencing for this offence. The applicant received a non parole period of 3 years and 6 months, with a balance of term of 2 years and 6 months. ii) Knowingly possess a false travel document pursuant to s 22(1) Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), carrying a maximum penalty of 10 years imprisonment. The applicant received a fixed term of 2 years imprisonment. iii) Possess instruments for making false instruments, pursuant to s 302A Crimes Act, carrying a maximum penalty of 10 years imprisonment. The applicant received a fixed term of 2 years imprisonment. iv) and v) Possess false instrument with intent to use, pursuant to s 302 Crimes Act, carrying a maximum penalty of 10 years imprisonment. The applicant received a fixed term of 2 years imprisonment on each offence. vi) Attempt to obtain credit by fraud, pursuant to s 178C Crimes Act, carrying a maximum penalty of one year's imprisonment. The applicant received a fixed term of 6 months. 8 All of the sentences were to date from 15 May 2006, the date the applicant was arrested. 9 There are two grounds of appeal, namely that the Judge failed to give proper consideration to the issue of parity with the sentence handed down to a co-offender, Syed Imranuddin, and that the sentence imposed for the proceeds of crime offence was too severe. It will be recognised immediately that the second ground takes no account of the fact that the sentence imposed on that offence subsumed the sentences imposed in respect of the other 5 offences. In order to succeed on that ground, the applicant bears the onus of persuading the Court that a sentence of 6 years imprisonment, comprising a non parole period of 3 years and 6 months, is manifestly excessive as an expression of the totality of the applicant's criminality, extending over a 6 month period. 10 No issue is taken with the Judge's summary of the comprehensive statement of facts admitted as an exhibit in the proceedings. The following is taken from the remarks on sentence :- The [offender] was operating a business called "Yes Finance" from 1/186 -- 190 Church St, Parramatta. The evidence shows that, using this business, the offender was involved in creating and falsifying information (including passports and drivers licences, also pay slips, tenancy agreements and bank statements) in order to obtain loans from major banks and financial lenders. The offender is alleged to have employed various runners that assisted him in carrying out his activities. These included a woman by the name of Poojar Kukkar who is apparently in India and has failed to return; the co-accused Syed Imranuddin who pleaded guilty to various offences and has been sentenced in the Local Court; a person by the name of Karimulla Sait Mohammed Ali who is the subject of a warrant issued for failing to appear; and also a Mohamed Abdul Wahid who has not been located by police. These alleged runners assumed various false identities and help secure personal loans from financial institutions. Once the loans had been granted, the funds were withdrawn and shared between the parties, including the offender. In conducting surveillance the Australian Federal police used telephone intercept material to establish the methodology employed by the offender. The telephone conversations included people calling and asking the offender how they can get their passports and when payment is required as well as discussions about what names were to be placed on the passports. The statement of agreed facts tendered to me included parts of telephone intercepts from 20 April 2006, 28 April 2006, 13 March 2006 and 28 March 2006 which detail this information. [The Judge then summarised the facts in relation to the proceeds of crime offence.] On 15 May 2006 police knocked on the door of the premises at 1/186 -- 190 Church St Parramatta and also called the phone number of "Yes Finance" with no result. At approximately 9:40 a.m. the offender arrived at the premises and was served with a copy of the search warrant. Upon opening the door, police found the co-offender Syed Imranuddin inside the premises on a computer. During the course of the search, which was video recorded, police located a large amount of cash in envelopes and plastic bags in a filing cabinet used by the offender. The varying amounts got placed in exhibit bags and were later counted with the aid of a money counting machine and was found to amount to a total of $490,100 in cash. Telephone intercept material from 16 February 2006 records the offender telling a female that he goes out carrying $150,000-$200,000 with him. …………………………………………………………………….. I am not satisfied beyond reasonable doubt that the [offender] "established" the system but I am satisfied beyond reasonable doubt that the [offender] was "heavily involved" in the system. 11 The false foreign travel document in the possession of the applicant was a passport in the name of Sehgal. The passport had been used to support an application for a New South Wales drivers licence on 27 March 2006. Telephone intercepts from 22 February 2006 record the offender and another person discussing the falsification of the passport. In late 2005, the Australian Federal police intercepted a package containing various passport components and laminates from the Republic of India. The package had been posted to an address in Parramatta leased to a false identity. A key was found in the applicant's possession which opened the post office box referable to that address, containing other documents in the name of false identities. 12 During the execution of the search warrant, various images were found on the computer that the co-offender Imranuddin had been working on. These included templates for financial documents, Australian visas and RTA registration labels. A scanned visa label in the name of Wahid was found saved on the computer. A number of blank Australian visa labels were examined by a Federal agent and determined to be of high quality, indicating the sophistication of the operation. These facts supported the charge in relation to possessing implements for making false instruments. 13 The two charges relating to possess false instrument with intent to use relate to the possession by the applicant of a false GIO Suncorp certificate in the name of Wahid and a false St George Bank account statement in the name of Ebrahim respectively. 14 Lastly, the attempt to obtain credit by fraud offence was committed by the offender on 28 March 2006. The offender attended Trivett Classic cars, purporting to purchase a vehicle to the value of $60,000 under a finance agreement. The offender subsequently provided a false payment slip from a non-existent company in a false name in support of that application. 15 The Form One offences relate to the possession of a false Indian passport, the possession of false RTA registration labels, false Esanda Finance documents, false St George Bank account statements and false pay slips in the name of fictitious identities.