District Court New South Wales Medium Neutral Citation: R v Choi [2013] NSWDC 28 Hearing dates: 25 January 2013 Decision date: 25 January 2013 Before: Berman SC DCJ Decision: Sentenced to imprisonment consisting of an effective overall non parole period of 3 years with an eligibility for parole of 2 years. Drugs to be destroyed Catchwords: CRIMINAL LAW - Sentence - Commonwealth and state offences - Forms 1 - Attempting to possess blank Australian Medicare cards knowing them to be false documents - Dishonestly obtain a financial advantage by deception - Possess false driver's licence with the intention of committing an indictable offence - Making a false instrument - Dealing with the proceeds of crime. Legislation Cited: Commonwealth Criminal Code Crimes (Sentencing Procedure) Act Cases Cited: R v Ali [2008] NSWCCA 60 Category: Sentence Parties: The Crown Myung Ho Choi Representation: P McGrath I Wallach - for the offender Director of Public Prosecutions Bilitas and Associates - Offender File Number(s): 2010/232224 SENTENCE 1HIS HONOUR: Appearing for sentence today is Myung Ho Choi, a young man who came to Australia from Korea to study. He appears to have studied well. He completed a Bachelor of Actuarial Studies from Macquarie University and had embarked upon a master's degree when he was arrested for a series of offences that I will shortly relate. He has no other criminal history. His criminality was substantial, extending over a lengthy period of time and involving many many separate acts of wrongdoing. He was industrious and apparently clever in his criminal activities, just as he appears to have been industrious and clever in his studies. 2He has served a very lengthy period of time awaiting today's sentence date, something in the order of two and a half years. That is a regrettable situation in the extreme. No one, certainly not in modern New South Wales, should have to wait two and a half years before their criminal matters are dealt with to finality. It is scarcely in the interests of justice for offenders (who may well be acquitted) to spend such lengthy periods of time awaiting resolution of their criminal matters, nor is it in the interests of justice for punishment to be delayed so long as it has been in this case. Although perhaps not particularly relevant to this case, it is notorious that those whose criminal matters are awaiting finalisation have limited access to courses and rehabilitative programs whilst remanded in custody. I am not quite sure why it is that it took so long for this matter to come before me today. I repeat it is regrettable in the extreme. 3Let me now turn to what the offender is to be sentenced for. I will set out what the offender did in a little while, but I will firstly explain the charges to which he has pleaded guilty. 4The first is an offence of attempting to possess blank Australian Medicare cards knowing them to be false documents with the intention that another person would use them to dishonestly induce a third person to accept them as genuine, and by that acceptance to dishonestly obtain a gain. That is a Commonwealth offence under the Criminal Code and carries a maximum penalty of ten years imprisonment. When I sentence him for that matter, he asks that I take into account a number of matters listed on a form for the purposes of s 16BA. 5The next offence on the indictment is an offence of dishonestly obtaining a financial advantage of $7,500 by deception by depositing a fraudulent cheque into a bank account in the name of Sung Hung Yung, an identity that the offender appears to have falsely taken. Again there are matters to be taken into account when I sentence him for that matter, this time listed on a Form 1. The maximum penalty for the offence on the indictment is ten years imprisonment. 6The next offence concerns the offender's possession of a false driver's licence in the name of Sung Hung Jung with the intention of committing an indictable offence, namely fraud. Again there are Form 1 matters attached to that. 7Count 4 on the indictment is an offence of making a false instrument, namely a cheque in the sum of $26,000 payable to Sung Hung Jung with the intention of using it to induce another person to accept it as genuine, and because of that acceptance to do an act to that other person's prejudice. That offence used to be described as forgery. The maximum penalty for that offence is ten years imprisonment. Again there is a Form 1 matter attached to that offence. 8Finally on the indictment there is an offence of dealing with the proceeds of crime, namely the sum of $34,650 knowing that it was the proceeds of crime. It will be made clear that relates to the purchase by the offender of a motorcar. There is no Form 1 matter attached to that offence. 9There is one other offence I must mention. On a 166 certificate there is a charge of possessing a small quantity of marijuana, that drug being found in the offender's possession when he was arrested for the other matters that I have identified. 10The offences relate to the offender obtaining false identification documents and then using them to obtain bank accounts in false names into which he deposited cheques which he had fraudulently altered with the intention of obtaining monies to which he was not entitled. The offender was industrious and clever in what he did. He had to use computer skills to create the false cheques. Someone, I am not quite sure who it was, had to emboss the blank Medicare cards to create false identities, and the offender did all these for a substantial period of time simply to obtain money to which he knew he was not entitled. 11The offender was not working alone either. It is clear that he was working with others, and in fact the statement of facts records this. The Crown does not dispute that in committing these offences the offender was acting on the instructions of another person or persons, the identity of whom is unknown to the police but known to the offender. Some time after the offender went into custody he contacted the authorities and indicated that he was willing to name names but that offer was not taken up. 12I will go through all the offences committed by the offender without identifying whether they appear on a Form 1 or on the indictment. The statement of facts does record that. 13The offender obtained a false photo identification card by going to the Burwood Motor Registry. His photograph was taken so that when the card was issued it contained the name of someone else but the photograph of the offender. The offender leased a post office box on 7 May 2010 using the false name that had appeared on the photo identification card the offender had previously obtained. In July 2010 Customs officers seized a package which was addressed to that post office box. It was found to contain five paper boxes and within those there were blank Medicare cards. On 10 July 2010 another package containing a smaller number of Medicare cards was also sent to the offender at his post office box. Apparently the offender's role was to pass those Medicare cards on to another person whose intention was to use the cards for identity fraud. 14 When the offender was arrested and police searched his premises in Epping a number of documents, which are described as identity information, were discovered in the name of Chuk Jing, and when the offender's computer was examined it became clear that the offender had created himself, using photo editing software for example, a number of documents which would enable him to falsely present himself as Chuk Jing. 15The offender had also obtained a New South Wales driver's licence in a false name, this time Sun Hung Yung, from the North Ryde Motor Registry. Once again he got a licence in the name of someone else with his photograph on it. He also opened a bank account at the AMP Bank Limited in that name using that false driver's licence. He did a similar things with the Rural Bank and it is to be noted that four cheques were later deposited into that account but were dishonoured because it was noticed that they were materially altered. The offender forged a cheque in the amount of $25,000 and deposited that cheque into the Rural Bank account. That cheque was dishonoured. A similar thing happened in relation to another cheque that the offender forged, this time in the amount of $30,000. Later another cheque was forged by the offender, this one in the amount of $15,000, but once more that was dishonoured. Withdrawals were made from the bank account, although the Crown cannot establish who made the withdrawals or benefited from their proceeds. As a result of the dishonoured cheques the Rural Bank has sustained a loss in the amount of about $80,000. 16The offender also opened a false bank account at the AMP Credit Union using the false driver's licence he had earlier obtained. He then deposited a forged cheque for $7,500. Before that cheque was dishonoured $7,000 was withdrawn from the account in two separate transactions. He also deposited a forged cheque for $4,980, that cheque subsequently being dishonoured in April 2010. The offender used Photoshop software on his computer to falsely forge a cheque for $4,099.56. That cheque was subsequently dishonoured but by the time that happened the proceeds had already been withdrawn. The offender possessed the driver's licence that I have spoken about, that is the one in the name Sung Hung Jung, when he was arrested. It was located in his home when police searched it. 17The offender also forged a cheque in the amount of $26,000 with the name Sung Hung Jung and deposited that to the Rural Bank account. It was subsequently dishonoured. 18A number of other items were found when the offender's home was searched relating to the name Sung Hung Jung, various credit cards, for example, and when his computer was examined a large number of files were found which related to the creation of false documents intending to give the appearance that the offender was in fact Sung Hung Jung. 19Another name used by the offender was Kwan Jin Chung and he got a driver's licence in that name with his photograph on it, of course, from the North Ryde Motor Registry in February 2009. 20Other offences committed by the offender utilised the name Sun Chung Park. He opened a bank account in that name. He deposited a forged cheque with that name as the payee, that cheque subsequently being dishonoured. He opened another account in that name using a certified copy of a false photo card and forged utility bills in the name Sun Chung Park. He deposited a forged cheque into one of those accounts in the sum of $6,981.80. Purportedly that cheque was from the Australian Tax Office. It was subsequently dishonoured. 21Once more when the offender's home was searched documents relating to the false identity that the offender had adopted were found, both physical documents and also computer files. 22I mentioned before that the offence of knowingly dealing with the proceeds of crime related to the purchase by the offender of a motor vehicle in December 2009. He paid cash, $34,650, for a Chrysler Crossfire. That cash was the proceeds of various identity fraud offences committed by the offender. It is important, of course, not to double count the criminality of the offender given that the cash used to purchase the car, itself a crime, was the proceeds of other crimes committed by the offender. 23Another thing found when the offender's home was searched was a book of blank cheques with the National Australia Bank logo. That book of cheques was deceptively similar to genuine National Australia Bank cheques, but an expert from the NAB fraud operations area was able to determine that they were forgeries. 24And finally, as I mentioned, when the offender's home was searched, two plastic bags containing 5.14 grams of cannabis were found. 25The offender was arrested after the search was finished. He was interviewed by police in which he admitted possession of the marijuana. The offender has remained in custody since the day of his arrest. 26I briefly mentioned the offender's personal circumstances when I began these remarks on sentence. I will add to what I said. 27He is in his early thirties. He was born in Korea. He was the younger of two children. He thought that his older brother was favoured by his parents which led to him becoming somewhat rebellious, but there is no suggestion he committed any criminal offences whilst in his native land. As I mentioned before, he came to Australia as a student. That was in 2005 and he has been living in Australia since then. He focussed largely on his studies after he came to Australia. He received some money from his parents who remained in South Korea while he was studying, and for a while supplemented that with income from a number of part-time unskilled jobs in the cleaning and hospitality industry. But his studies took a lot of his time and attention. He had to give up part-time work and live only on the money his parents sent him. 28The pre-sentence report offers this explanation for the reason the offender committed these offences: "The offender claimed that he began to struggle financially and he had met people who offered him the opportunity to participate in the offences". Thus, it is suggested that the motivation for these offences was impecuniosity of the offender. No evidence was called from the offender and we only have the presentence report's explanation as to why the offender would do what he did. It is a possible explanation but not the only one available, and it does have to be noted that when the offender bought a car it was not a cheap car either. Whether or not the offender's motivation to commence committing these crimes was initially one of need, by the time he bought the car there was at least that evidence that he had moved into using the money to obtain what I would describe as luxuries. 29Since going into custody the offender is apparently a good worker, who is polite and compliant and, although these words were not used and they are mine, corrective services officers seem to regard him as a pleasure to have in their custody. 30The offender, as I mentioned, has made few contacts in Australia and, thus, will be doing his sentence without the support of family and friends. Not too much can be made of this, of course, because it was the offender's deliberate choice to commit these offences in a foreign country, knowing that if he was detected he would have to serve his sentence away from his family. Nevertheless, the offender will do his time in custody harder than those who do have the benefit of regular visits from family and friends. Although the offender was assisted by an interpreter today, he speaks English very well, so nothing was put by Mr Wallach to suggest that part of the hardship that the offender will experience in custody would relate to a difficulty in communicating with fellow prisoners and the authorities. 31As far as the offender's potential for rehabilitation is concerned, the fact that this is an isolated breach tends to suggest that there are good prospects of rehabilitation. On the other hand, the offender's criminal activities extended over a lengthy period of time involving many separate acts of criminality. It is difficult to know what decision the offender will take in the future should an opportunity to commit further offending present itself. Mr Wallach suggests that he will have difficulty obtaining work as an actuary because of his criminal convictions, which may well be the case. It is to be hoped that these offences are isolated ones. Certainly the time the offender has spent and will spend in custody will, I trust, be a salutary experience for him. 32The offender pleaded guilty at a late stage. Apparently there was some legal issue relating to one of the offences, which needed to be resolved before pleas could be entered. Nevertheless, it has to be recognised that there was a limited utilitarian benefit and a limited willingness to assist the course of justice represented by those late pleas. The sentences I impose will for that reason be ten per cent less than would otherwise be the case. 33It is apparent that the offender is remorseful for what he has done. As I mentioned before, he contacted the authorities and offered to assist them. 34That is good evidence of remorse. I am prepared to accept the offender is sorry for what he has done. 35There needs, however, to be a substantial component of general deterrence built into any sentence I impose upon the offender. Modern day financial transactions rely heavily on the integrity of documents and individuals. As the Court of Criminal Appeal said in R v Ali (2008) NSWCCA 60: 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 in punishing theft and those who wish to profit from it, maintaining the security of those documentary systems has become a major imposition in the ordinary undertaking of business and travel." 36It was submitted by Mr Wallach that the effective non-parole period that I should impose upon his client would allow him to be released if not immediately then very soon. The Crown did not quite agree, but suggested that the time that the offender had served was approaching the bottom of the range which would be appropriate to the offender's overall criminality. Primarily because of the length of time over which the offender was committing offences, I am not satisfied that the time the offender has served would properly reflect his overall criminality if that were the effective non-parole period I imposed. The offender needs to do more time in custody before he can be released it is a fundamental rule in sentencing, that a non-parole period must bear a proper relationship to the criminality of an offender's conduct. To release the offender today or in the near future would not obey that fundamental rule. 37I have decided to impose a fixed term for the Commonwealth offence and an aggregate sentence for the State offences. The fixed term I will impose because there is no utility providing for a period of conditional release because of the aggregate sentence I will impose for the State counts. I will make a finding in the offender's favour as regards the relationship between the non-parole period and the head sentence. Part of that concerns something I mentioned very early on in these remarks on sentence. Whilst awaiting today the offender has been on remand with limited access to courses and rehabilitative programs. 38For the offence on the s 166 certificate, possessing a small quantity of marijuana, the offender is convicted but there is no other punishment under s 10A of the Crimes (Sentencing Procedure) Act. 39On count one on the indictment I impose a fixed term of imprisonment of eighteen months to date from 12 July 2010. 40On counts two, three, four and five on the indictment I will impose an aggregate sentence. I would have imposed on count two a sentence of two years, on count three a sentence of eighteen months and on counts four and five sentences of two years and six months. I impose for those counts an aggregate sentence of two years non-parole period with a head sentence of four years to date from 12 July 2011. Thus, the sentence is an effective sentence consisting of a non-parole period of three years, a period of eligibility for parole of two years and a head sentence of five years. The offender's nonparole period will expire on 11 July 2013, on which date the offender is eligible to be released to parole. 41The drugs are to be destroyed. ********** 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: 04 April 2013