District Court New South Wales Medium Neutral Citation: R v Islam; R v Ahmed [2019] NSWDC 546 Hearing dates: 15 July 2019 Date of orders: 15 July 2019 Decision date: 15 July 2019 Jurisdiction: Criminal Before: M L Williams SC DCJ Decision: Islam – An aggregate term of three years, ten months with a non-parole period of two years, eight months: at [29]. Ahmed - An aggregate term of two years, six months with a non-parole period of one year, seven months: at [43]. Catchwords: SENTENCING — Aggravating factors — Financial gain — In company — Multiple victims — Planned or organised criminal activity — Record of previous convictions — Breach of conditional liberty SENTENCING — Mitigating factors — Plea of guilty Rehabilitation — Remorse SENTENCING — Relevant factors on sentence — Co-offenders — Parity — De Simoni/double counting SENTENCING — Subjective considerations on sentence — Special circumstances — Drug addiction — Mental illness Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Cases Cited: Kemp v The Queen [2012] NSWCCA 281 Texts Cited: Nil Category: Sentence Parties: Regina (Crown) Tariqul Islam (Offender) Mustafa Ahmed (aka Liton Sheikh) (Offender) Representation: Ms Ng (Crown) Mr Ainsworth (Counsel for the Offender – Islam) Mr James (Counsel for the Offender – Ahmed) File Number(s): 18/27691; 18/91549; 17/257074 Judgment 1. Tariqul Islam and Mustafa Ahmed (also known as Lition Sheikh), appear for sentence, both having pleaded guilty to one count under s 93T of the Crimes Act 1900 of participate in criminal group, and one count under s 192J of deal with identification information, which both carry a maximum penalty of ten years imprisonment with no standard non‑parole period. These penalties are yardsticks to be taken into account in the sentencing process, as well as the purposes of sentencing in s 3A of the Crimes (Sentencing Procedure) Act 1999. 2. The offenders pleaded guilty at an early opportunity and it is common ground that a 25% discount on any term of imprisonment should be allowed for the utilitarian value of the plea. It is also common ground that a period of fulltime custody is required in both cases and it is unnecessary for me to consider any alternatives. 3. The offending was detected by the Financial Crimes Squad, who were investigating fraudulent transactions arising from a credit card skimming operation, said to be overseen and organised by Mr Islam, although as Mr Ainsworth for counsel points out, there was probably someone else involved beyond those who have been dealt with, and who are here for sentence today. 4. It is common ground that Mr Islam's sentence should commence on 18 November 2018, bearing in mind questions of totality and the fact that he has served a sentence for other fraud offences imposed by Armitage ADCJ, on 20 April 2018. 5. The Crown bundles contain details of the offending and the records of the various co‑offenders, Mr Rabbi and Mr Alam, as well as Mr Syed Rahman, who was to be dealt with today but his case has been adjourned. Tariqul Islam 1. There were a number of people involved in the criminal group which involved utilising various taxi drivers and people to conduct large amounts of fraudulent withdrawals from ATM machines. Mr Islam was regarded as the ringleader. Mr Ahmed was an associate who conducted fraudulent withdrawals and possessed a skimming device in his taxi. Mr Alam was the runner, the person who conducted the withdrawals. Mr Syed Rahman (Syed) was a taxi driver who was in possession of a skimming device. Mr Md Rahman (Rahman) was a taxi driver who was also in possession of a skimming device. 2. Mr Islam was identified as the principal who managed the deployment of the skimming devices to taxi drivers and who instructed them on how to use the devices. He told them how to conduct unauthorised withdrawals, knowing that the cards had been cloned. He was in possession of at least five EPTPOS terminals which were referred to as a ghost terminals. They are untraceable as they do not deduct any funds from the bank account for taxi travel. They were distributed by him to various taxi drivers including Sayed and Rahman. 3. Much of the evidence was obtained through lawfully authorised surveillance device information. It is unnecessary for me to set out the facts which are contained in detail in the summary, but in short, audio records indicate that Mr Islam has been asserting that he was conducting this criminal activity for the last three years and had made between $250,000 and $300,000. 4. In relation to the second count under s 192J, he was arrested on 26 January 2018. Upon his arrest and search of his residence, investigators seized a laptop containing the details of over 550 individual credit cards and numbers from various financial institutions. DNA showed that it was his laptop. 5. His record contains only the matter leading to the sentence to which I have referred for a number of offences of dishonestly obtain financial advantage by deception in May 2016, leading to two years imprisonment with a 15 month non-parole period commencing 19 December 2017, and there is one common assault matter in 2016 dealt with by fine. 6. His subjective case is set out in a Sentence Assessment Report, a psychological report and a number of references from people who know him well. I bear in mind the need for caution in dealing with un-adopted histories but given the significant quantity of material from sources other than the offender it is a reasonable basis upon which to proceed to sentence. 7. He is a 31 year old Bangladeshi man who was working at a fast food restaurant at the time of his offending. He was on bail when he committed these offences and he said that he committed the offences to fund his methyl-amphetamine use and gambling, and he expressed regret for that. 8. He came to Australia in 2006 when he enrolled in a tertiary course for two semesters. He started smoking cannabis in 2010 when aged 23 and progressed to methyl-amphetamines in 2016. 9. The psychologist acknowledges that his offending was calculated and planned, and showed a disregard for the law. He has a need for treatment relating to substance abuse, and he also needs monitoring and counselling for his mental state. 10. I take account of his expressions of regret and remorse. He accepts that the time in custody has given him a chance to stay drug free and to reflect about the wrong choices that he made. 11. Prior to his arrest he had opened up to his partner Carmen Martinez about his difficulties, and I am surprised that she speaks highly of him, as does Lisa Ogilvy, Syed Hossain and Mr Christopher Isika from the Macquarie Correctional Centre, the Senior Chaplain at that centre. 12. It is clear having reviewed the facts in relation to co-offenders who have been dealt with, and as conceded by Mr Ainsworth and Mr James, that the co-offender's roles were lesser roles than those performed by these two offenders. 13. I take account, as the Crown points out in helpful written submissions, the statements in a number of cases in relation to the threat to the safety and wellbeing of the community posed by people involved in directing criminal groups. 14. I summarise Mr Islam's role as involving providing skimming machines to his associates which operated to extract data from the credit cards of unknowing taxi customers. He then downloaded the data, stored it on his own laptop and then created cloned cards which were used by his associates at his direction to withdraw money from ATMs around Sydney. 15. He also provided instructions to Ahmed in relation to a trip to Tasmania, he received reports from members of the group, and the operation required forethought and planning, as well as advanced technological skills with regard to the skimming machines and manufacturing of client cards. He was clearly cunning and deliberate in his coordination and execution of the various aspects of the operation. 16. It is not challenged by Mr Ainsworth that this offending was in the mid-range of objective seriousness given that he maintained control of a complex and prolonged multi-jurisdictional fraud operation and derived a substantial but unspecified financial benefit from the offences. I say 'unspecified' in the light of the fact that although the agreed facts contain assertions from him of receiving $250,000 to $300,000, the evidence does not establish that he was enjoying the benefits of a lavish lifestyle, but it is clear that he made a significant financial gain. 17. His record of previous convictions is an aggravating factor, as is the fact that he was on conditional liberty at the time of the offending and that the offending was committed for financial gain. 18. As to the second count of dealing with the identification information it is, as Mr Ainsworth puts, double counting to regard that as part of a planned or organised criminal activity given that that is the substance of the principle count. 19. I take into account questions of parity as summarised by Adamson J in Kemp v The Queen [2012] NSWCCA 281 and apply those principles to the objective and subjective cases, as far as they can be determined in relation to the co-offenders, and there should be clearly some degree of accumulation between the sentences imposed and the separate criminality involved. 20. Mr Ainsworth also conceded as an aggravating factor that the loss and damage caused by the offences was substantial. 21. I accept that the facts that I have related bear only upon the s 93T(1A) offence and not the more serious offence under s 93T(4A) because there was no evidence of organised and ongoing elements as required by the more serious offence which carries a maximum of 15 years imprisonment. Mr Ainsworth concedes that the court could find that he provided the offenders with the machines, he instructed them as to how they would be used, and provided payments to them for the credit card details they were able to obtain, he used the credit card information to manufacture imitation cards for the purposes of withdrawals and instructed them on how to withdraw. 22. I take account of the efforts that he has made while in custody to engage in educational courses. In terms of mitigating factors his prospects of rehabilitation appear to be reasonable and he has expressed remorse and pleaded guilty. As Mr Ainsworth puts, this is probably a case where his exposure to illicit substances sent his previously good life in the wrong direction and he was able to successfully disguise that from people close to him for a number of years, but he has made efforts to engage in rehabilitation. 23. There is a basis for a finding of special circumstances which I will make in the light of the fact that he requires counselling and supervision for an extended period upon his ultimate release, although the practical likelihood of that may be illusory given that it appears that he may be deported at the conclusion of any non-parole period, but that of course, is not a matter that I can take into account. 24. The orders that I make in Mr Islam's case are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of three years and ten months imprisonment commencing 18 November 2018. 3. I impose a non-parole period of two years and eight months expiring on 17 July 2021. 4. The indicative sentence are: 1. 037: 3 years; 2. 038: 22 months. 1. I find special circumstances. Mustafa Ahmed (aka Liton Sheikh) 1. Mustafa Ahmed, also known as Liton Sheikh, is 49 years of age. It is agreed that the term of imprisonment should commence on 22 June 2018. The agreed facts are significantly shorter than those for Mr Islam. Mr Ahmed was on bail at the time of the offending and I take account of the material in relation to the co-offenders. 2. He arrived in Australia from Bangladesh in 1990 and was working as a taxi driver. His previous similar offending followed his arrest in August 2017 and he was convicted of three fraud-related offences. He served a term of nine months' imprisonment for offences in December 2017. That expired on 8 September 2018. He had previously received a section 9 bond for further fraud-related offences in January 2017 and I am told that that is to be called up today, but I will take no action on the breach of that bond in the light of the sentence that will be imposed. 3. The introductory facts have already been outlined in relation to Mr Islam. In short, here the offender conspired with Islam to conduct the skimming of cards via the use of compromised EFTPOS terminals which were supplied by Islam to the offender to use while driving his taxi. Numerous discussions between Islam and the offender have been recorded and distilled during which they discussed the skimming, the subsequent cloning of cards and the use of those cards so as to conduct fraudulent cash withdrawals from ATM machines. 4. As to the s 192J offence of deal with identification information, he was in company with Mr Hasan, attempting to leave for Fiji on 20 May 2017 when he was found to be in possession of 63 gift cards. Each of those cards contained the cloned credit card information of 63 individuals. 5. In relation to the charge of knowingly participate in the criminal group, under s 93T(1A),as distinct from direct the criminal group the facts detail a conversation with Islam on 9 October 2017, conversation and surveillance with Islam on 11 October 2017, and organising the trip to Tasmania to commit frauds using the cloned cards. 6. During the conversation on the 9 October they discussed making half a million dollars if they had succeeded in their operations. The only particular mention of any financial amounts is the $6,300 that he had obtained from the cards that he had in his possession prior to the trip to Tasmania. 7. His record includes assault offences in 2001 and 2016 leading to a three month suspended sentence for the latter offence, a fraud count in January 2017 leading to the bond to which I have referred, and the further offences relating to possessing equipment to make a false document and possess identity information to commit an indictment offence in December 2017 leading to the nine month term of imprisonment. 8. The Sentencing Assessment Report does him no real favours, as Mr James of counsel conceded, because he demonstrated no insight into the impact of his offending. He said that he was a victim and asserted that he was not a bad person because he was only skimming people's cards. He was assessed as being at a medium to low risk of reoffending. I have taken account of the remarks of Judge Hosking which led to the section 9 bond being imposed on appeal in the earlier matters to which I have referred. 9. There is a quantity of subjective material in addition to a significant quantity of subjective material which had been put before the Magistrate at Sutherland Local Court. He has been actively engaged in remand programs while at John Morony. 10. There is a lengthy history set out in the report of Mr Watson-Munro which has not been adopted but is a not unreasonable basis for assessment of his subjective circumstances. He seemed to commence cannabis use at age 16 then progressed to ice and cocaine on a regular basis. On a positive note, he has been drug free for 15 months and he is being treated for depression with prescription Avanza. 11. Mr James did not take issue with any significant part of the Crown's written submissions. Mr Ahmed's role was more serious than the others but it is acknowledged that he was junior in the syndicate to Mr Islam. He accepts the characterisation of the offending as being between the low to mid-range in the case of both offences. Although he cavils with the Crown's descriptions of this man being a key player and a significant player, the evidence establishes that they are accurate characterisations of his role. The Crown submits on the evidence he appears to be the only person entrusted to take the activities of the syndicate outside New South Wales, that is to Fiji, and to Tasmania. 12. He has a close relationship with Islam, the apparent leader of the group. It is clear that in terms of aggravating factors he has a record of previous convictions. He was on bail at the time of the offences, and the offence was committed for financial gain and involved multiple victims and a series of criminal acts. The second offence, when he was attempting to travel to Fiji, was committed in company of a co-accused, Hasan. 13. I take account of the parity principles and the facts subjective circumstances in relation to each of the co-offenders. I accept there should be a modest degree of accumulation between the indicative sentences given the separate criminality involved. 14. The orders that I will make are: 1. The offender is convicted of each offence. 2. I impose an aggregate sentence of imprisonment of 2 years, 6 months, to commence on 22 June 2018. 3. I impose a non-parole period of 1 year, 7 months, expiring on 21 January 2020. 4. The indicative sentences are: 1. 002: 27 months 2. 033: 11 months. 1. I find special circumstances. 2017/27683 Liton Sheik: Call up s 9 bond (6) No further action taken. Note – These extempore remarks were revised without access to the court file ********** 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: 09 October 2019