RANKIN (A PSEUDONYM) v THE KING [2024] SASCA 112

On Appeal from DISTRICT COURT OF SOUTH AUSTRALIA Appellant: RANKIN (A PSEUDONYM) Counsel: MR D MOEN - Solicitor: CALDICOTT + ISAACS LAWYERS Respondent: THE KING Counsel: MS K DRAPER WITH MS E CATTRALL - Solicitor: DIRECTOR OF PUBLIC PROSECUTIONS (SA) Hearing Date/s: 10/09/2024 File No/s: SCCRM-24-000473 A SUPREME COURT OF SOUTH AUSTRALIA (Court of Appeal: Criminal) DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment. The onus remains on any person using material in the judgment 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 in which it was generated. RANKIN (A PSEUDONYM) v THE KING [2024] SASCA 112 Judgment of the Court of Appeal (ex tempore) (The Honourable President Livesey, the Honourable Justice S Doyle and the Honourable Auxiliary Justice Hall) 10 September 2024 CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - PROCEEDS OF CRIME, MONEY LAUNDERING AND RELATED OFFENCES The appellant sought permission to appeal against sentence. The appellant was convicted following a trial by judge alone of 20 counts of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA). He was sentenced to a head sentence of six years’ imprisonment and a non-parole period of three years and six months. The charges arose from the appellant’s central role in a scheme for the fraudulent ordering, procurement, and subsequent sale of new Apple iPhones between April and May 2020. The appellant submitted that the sentence imposed by the trial judge was manifestly excessive having pointed to the following matters: 1. The appellant’s lack of prior offending and good character. 2. The appellant’s cooperation with authorities. 3. The appellant’s restitution before sentence. 4. The appellant’s letter of remorse. 5. The fact that the appellant has been assaulted and threatened whilst in custody pending sentence. -- 1 of 13 -- HELD (the Court) granting permission to appeal on the ground of manifest excess and dismissing the appeal: 1. Without pointing to any specific error, the appellant asserted that a number of matters were given inadequate weight. Arguments about weight will not usually assist an application for permission to appeal against sentence. 2. There was nothing in the points made about the appellant’s lack of prior offending and good character, or the restitution he made. These matters were taken into account. The challenge made to the 5 per cent reduction for cooperation was problematic where the sentencing judge made the reduction sought by the appellant. 3. Whilst it was relevant to consider whether an offender will serve a sentence of imprisonment in a manner that is harsher than other prisoners, it cannot be said that this was overlooked by the sentencing judge. It remained open to the Executive to appropriately manage prison security. It was perfectly open to the sentencing judge to view the appellant’s apology and remorse with scepticism where he had “lied almost from start to finish” in evidence at the trial. 4. As for manifest excess, it was appropriate for the sentencing judge to take into account the seriousness of the charged conduct by reference to a number of features involved in the offending, including: 1. The amount of money or property. 2. The period and number of transactions. 3. The degree of pre-meditation and sophistication. 4. The extent of any dishonesty, breach of trust or corruption, including whether it stopped only because of detection by the authorities. 5. The offender’s knowledge or belief about the origin or ownership of the money and property involved, together with who was to benefit from it. 6. The offender’s explanation or motivation for the offending. 5. It would be wrong to concentrate on the sums involved without also recognising the appellant’s corrupting influence on others. The offending was, in all of the circumstances, very serious and a firm response from the sentencing court was appropriate. 6. Having regard to the nature of the offending, involving a carefully planned and relatively sophisticated scheme, and even after allowing for all of the matters to which the appellant pointed, it cannot be said that the sentence was unreasonable or unjust. Criminal Law Consolidation Act 1935 (SA) s 138(1); Criminal Procedure Act 1921 (SA) s 157(1)(a)(iii); Sentencing Act 2017 (SA) s 26, referred to. Barbaro v The Queen (2014) 253 CLR 58; Bubner v The Queen [2022] SASCA 27; Donnelly v The King (2022) 304 A Crim R 237; DPP v Singh [2024] ACTSC 202; Elias v The Queen (2013) 248 CLR 483; Ghassibe v The King [2024] SASCA 78; GZO v The Queen (2021) 138 SASR 256; Hackett v The Queen [2021] SASCA 32; Hili v The Queen (2010) 242 CLR 520; House v The King (1936) 55 CLR 499; Lee v The State of Western Australia [2022] WASCA 137; Lees v The Queen [2022] SASCA 93; Markarian v The Queen (2005) 228 CLR 357; McNamara v The Queen (No 2) [2021] SASCFC 43; Nannup v The State of Western Australia [2011] WASCA 257; O’Neill v The Queen [2020] SASCFC 78; R v Cavanagh [1999] SASC 418; R v Davies (1996) 88 A Crim R 226; R v Golding (1980) 24 SASR 161; R v Guo (2010) 201 A Crim R 403; R v Howat [2017] SASCFC 41; R v Knoote-Parke (2016) 125 SASR 13; R v Lean (2017) 128 SASR 451; R v Lian [2023] SASCA 122; R v Nath (1994) 74 A Crim R 115; R v Pham (2015) 256 CLR 550; R v Portolesi (1988) 48 SASR 217; R v Powell (2001) 81 SASR 9; R v Salameh (1991) 55 A Crim R 384; Ryan v The Queen (2001) 206 CLR 267; Samuels (a pseudonym) v The King [2024] SASCA 50; Veen v The Queen (No 2) (1988) 164 CLR 465; York v The Queen (2005) 225 CLR 466, considered. -- 2 of 13 -- -- 3 of 13 -- -- 4 of 13 -- RANKIN (A PSEUDONYM) v THE KING [2024] SASCA 112 Court of Appeal – Criminal: Livesey P, Doyle JA and Hall AJA THE COURT (ex tempore): Introduction 1 This is an application for permission to appeal against sentence, pursuant to s 157(1)(a)(iii) of the Criminal Procedure Act 1921 (SA). 2 The appellant contended that his sentence is manifestly excessive and that the exercise of discretion by the sentencing judge miscarried because the reduction made for cooperation was inadequate. 3 On 6 June 2023, the appellant was convicted following a trial by judge alone of 20 counts of money laundering, contrary to s 138(1) of the Criminal Law Consolidation Act 1935 (SA), for which the maximum penalty was imprisonment for 20 years. On 8 December 2023, the sentencing judge sentenced the appellant pursuant to s 26 of the Sentencing Act 2017 (SA) to a head sentence of six years’ imprisonment.1 A non-parole period of three years and six months was fixed.2 4 For the following reasons, permission to appeal should be granted, but the appeal dismissed. The circumstances of the offending 5 Broadly, the appellant played a ‘central role’ in a scheme for the fraudulent ordering, procurement and subsequent sale, of new Apple iPhones.3 Whilst the appellant’s dishonest conduct spanned at least six years, the charged conduct was confined to the period April and May 2020. 6 The scheme operated in the following way. A caller contacted customers of Telstra Corporation Limited (Telstra) offering a discount. To qualify for the discount, the customer was requested to provide personal details and a single use PIN. These enabled access to the customer’s online account. Once that was secured, an Apple iPhone was ordered, and the cost added to the customer’s billing cycle. This was done without the customer’s permission. The iPhones were ordered to be delivered to various addresses. These addresses were not directly connected with the appellant. They were, however, within depots controlled by employees of Australia Post. The appellant had corrupted these employees by 1 Notional sentences of 18 months’ imprisonment were imposed for the first 15 counts and, for the remaining counts, notional sentences of two years’ imprisonment were imposed before a large allowance was made for concurrency and reductions were made for time spent in custody and on home detention bail. The appellant spent 10 days in custody between 26 May 2020 and 2 June 2020 before being granted home detention bail for 23 days. 2 Sentencing remarks, p5. 3 Sentencing remarks p3. The appellant made no challenge to any findings made in connection with conviction or sentence. -- 5 of 13 -- [2024] SASCA 112 The Court 2 engaging them to intercept the iPhone packages and deliver them to the appellant. The appellant would then sell the mobile telephones and secure financial benefits for himself and others, including the Australia Post employees. Each employee was paid $25 for each intercepted package and a $1000 bonus for every 150 packages intercepted and delivered to the appellant. 7 Counts 1 to 15 concerned the appellant knowingly taking possession of 63 mobile telephones delivered between April and May 2020. Counts 16 and 17 concerned the appellant directly or indirectly causing 40 illegally obtained mobile telephones to be brought into the State. These were intercepted following the appellant’s arrest in May 2020. Counts 18 to 20 concerned the appellant’s possession of cash totalling $65,435 which was found in his home during a search on 25 May 2020. It was agreed that this represented proceeds from the sales of illegally obtained mobile telephones. 8 The value of the mobile telephones obtained during the operation of the scheme during April and May 2020 totalled approximately $200,000. The unrecovered mobile telephones the subject of the charges totalled approximately $83,000. The cash seized from the appellant’s home was forfeited. In addition, the appellant made restitution to Telstra from his own trucking business in the amount of $20,000, with the result that Telstra did not suffer a financial loss. 9 There was no evidence concerning the extent to which the appellant profited from this dishonest scheme before the charged period. The circumstances of the offender 10 The appellant was born in Pakistan and came to Australia when aged 18. He was 25 years at the time of sentence. 11 In 2018 the appellant commenced a Bachelor of Aviation which he completed in 2021. When arrested, he held a study visa. 12 The sentencing judge took into account the following matters. The appellant had no previous convictions, had expressed remorse and given some assistance to Police in the form of a statement dated 23 October 2023 in which he undertook to go to court if required. 13 The sentencing judge considered the appellant’s academic transcript and consistent employment, together with a number of letters of support. The restitution made by the appellant ($20,000), together with his concession that the seized sum of $65,435 be forfeited, were also taken into account. 14 The sentencing judge acknowledged and took into account that the appellant had been assaulted and threatened whilst at Yatala Labour Prison, reflecting that his time in custody had been more difficult compared with some other prisoners. -- 6 of 13 -- [2024] SASCA 112 The Court 3 15 Finally, the sentencing judge also took into account that the appellant’s conviction and sentence would likely result in his deportation, though no evidence about that was adduced. The case for the appellant 16 The appellant submitted that the following matters demonstrated that the sentence was manifestly excessive: 1. Lack of any prior offending history and the appellant’s good character. 2. The provision of a detailed statement dated 23 October 2023 to the authorities exhibiting his cooperation. 3. The payment of restitution in the amount $20,000 directly to Telstra before sentence, and the order of forfeiture of monies totalling $65,435. 4. The letter of remorse written by the appellant to the sentencing judge before sentence. 5. The fact that the appellant had been assaulted whilst in custody pending sentencing. 17 The appellant acknowledged that the sentencing judge was sceptical about his remorse and described his expressions as “hollow” and “lacking real” weight.4 The sentencing judge refused to suspend the sentence or order that it be served on home detention. It is not now contended that these sentencing options should have been implemented. 18 Obviously enough, it is not sufficient for the appellant to urge that this Court should impose a different sentence. Rather, it is necessary for the appellant to establish that the sentence which was imposed was not reasonably open, and that the outcome was unreasonable or plainly unjust.5 Relatively recently, this Court explained:6 The administration of the criminal law involves individualised justice. The imposition of a just sentence on an offender in a particular case is an exercise of judicial discretion concerned with doing justice in that case.7 The exercise of the discretion that the law reposes in a sentencing judge does not yield a single correct sentence.8 Absent a specific error it is only if the sentence is found to be “unreasonable or plainly unjust” that a challenge of manifest excess will succeed.9 A sentence which is unreasonable or plainly unjust for no reason other than that it is manifestly too long or too short is a sentence which has not been imposed according to rules of reason and justice.10 It is not sufficient for this 4 Sentencing remarks, p4. 5 House v The King (1936) 55 CLR 499, 504-505 (Dixon, Evatt and McTiernan JJ). 6 Hackett v The Queen [2021] SASCA 32, [8] (Kelly P, Lovell and Livesey JJA). 7 Elias v The Queen (2013) 248 CLR 483. 8 Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 9 House v The King (1936) 55 CLR 499. 10 Barbaro v The Queen (2014) 253 CLR 58, [61] (Gageler J). -- 7 of 13 -- [2024] SASCA 112 The Court 4 court to conclude that it would have come to a different decision to the one reached by the sentencing judge. The judgment is a discretionary one and what is required is that the sentencing judge must take into account all relevant (and only relevant) considerations in forming the conclusions reached. Judges at first instance are to be allowed as much flexibility in sentencing as is consonant with consistency of approach and as accords with the statutory regime that applies.11 To observe that a sentence is “very heavy” when compared with other sentences is not, without more, to conclude that it exceeded the bounds of the sentencing judge’s discretion.12 19 Before considering whether the sentence is manifestly excessive, it is convenient to address each of the matters to which the appellant pointed in support of the contention that the sentence is manifestly excessive. It is clear that the appellant was unable to point to any specific error or oversight by the sentencing judge. Rather, the matters to which the appellant pointed were all taken into account by the sentencing judge. The appellant asserted, however, that these were given inadequate weight. As has been said many times, arguments about weight will not usually assist an application for permission to appeal against sentence.13 Absence of prior convictions and prior good character 20 The appellant submitted that the absence of a prior criminal history could be taken into account when considering offending which was held by the sentencing judge to comprise a single course of offending over a period. Nonetheless, the appellant submitted that this offending was uncharacteristic, and that leniency was therefore a consideration.14 21 There is nothing in this point. Whilst bad character cannot increase a sentence, good character may operate to reduce the sentence that might otherwise be imposed.15 The weight to be given to an offender’s good character must inevitably depend on the particular circumstances of the case.16 22 Indeed, prior good character will ordinarily carry little weight in a case such as this.17 23 Whilst the sentencing judge took into account the absence of prior convictions and the appellant’s prior good character, it was difficult to regard these as affording much scope for leniency in circumstances where the offending was 11 Markarian v The Queen (2005) 228 CLR 357, [27] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 12 R v Pham (2015) 256 CLR 550, [56] (Bell and Gageler JJ). 13 See, for example, Ghassibe v The King [2024] SASCA 78, [35] (Livesey A/CJ, Doyle and David JJA); Lee v The State of Western Australia [2022] WASCA 137, [72]-[76] (Buss P, Mitchell JA and Livesey AJA). 14 Veen v The Queen (No 2) (1988) 164 CLR 465, 478 (Mason CJ, Brennan, Dawson & Toohey JJ); DPP v Singh [2024] ACTSC 202, [59] (McWilliam J). 15 Ryan v The Queen (2001) 206 CLR 267, [24]-[25] (McHugh J). 16 R v Knoote-Parke (2016) 125 SASR 13, [64] (Doyle J, with whom Sulan and Blue JJ agreed). 17 McNamara v The Queen (No 2) [2021] SASCFC 43, [22] (Nicholson, Livesey and Bleby JJ) and the cases there cited, R v Davies (1996) 88 A Crim R 226 (Cox J, with whom Doyle CJ and Bollen J agreed); R v Cavanagh [1999] SASC 418 (Debelle J, with whom Doyle CJ and Wicks J agreed); R v Powell (2001) 81 SASR 9 (Prior J, with whom Perry and Besanko JJ agreed); R v Howat [2017] SASCFC 41 (Doyle J, with whom Vanstone and Parker JJ agreed). -- 8 of 13 -- [2024] SASCA 112 The Court 5 far from isolated and the appellant’s dishonest conduct was central to the scheme’s success. Cooperation with the authorities 24 Again, this was a matter specifically taken into account and a 5 per cent reduction was made. This challenge is, to say the least, problematic in a case where the sentencing judge made the reduction sought by the appellant. 25 An offender’s cooperation will usually warrant some reduction in sentence.18 Equally, however, the extent of any reduction will necessarily depend on upon its quality.19 In broad terms, the appellant’s information identified others potentially involved with the appellant in the criminal scheme, as well as those with whom the appellant had had some contact and who were involved in various kinds of criminal activity. There was in this case no Golding letter,20 and the cooperation was regarded as providing Police with intelligence but no immediate benefit. 26 Whilst others were undoubtedly involved in the criminal scheme, the information provided by the appellant was inconsistent with the findings made by the trial judge that the appellant was responsible for approaching and corrupting Australia Post employees. In an important respect it omitted reference to the involvement of the appellant’s brother. Otherwise, the information supplied was vague concerning what appeared to be a range of low-level dishonesty offending. 27 There is no reason to think that the sentencing judge failed to give proper consideration to the nature, extent and value of the appellant’s cooperation when determining the appropriate reduction.21 28 The appellant abandoned his submission regarding s 37 of the Sentencing Act 2017 (SA), evidently because he did not meet the requirements of that provision. As has been recognised, s 37 supplements rather than replaces the common law concerning cooperation.22 Making restitution 29 Again, there is nothing in this point. The sentencing judge took restitution into account as a mitigating factor. Whilst the appellant tended to lump the payment of $20,000 together with the forfeiture of the amount of $65,435, it was 18 R v Portolesi (1988) 48 SASR 217, 219-220 (King CJ); Samuels (a pseudonym) v The King [2024] SASCA 50, [9] (Livesey P). 19 Nannup v The State of Western Australia [2011] WASCA 257, [64] (Buss JA, with whom McLure P and Mazza JA agreed); Donnelly v The King (2022) 304 A Crim R 237, [111] (Doyle, Bleby and David JJA). 20 R v Golding (1980) 24 SASR 161; York v The Queen (2005) 225 CLR 466, [3] (Gleeson CJ). 21 R v Salameh (1991) 55 A Crim R 384, 386; GZO v The Queen (2021) 138 SASR 256. 22 O’Neill v The Queen [2020] SASCFC 78, [41] Nicholson J, with whom Stanley and Hughes JJ agreed). -- 9 of 13 -- [2024] SASCA 112 The Court 6 necessary for the latter to be separately considered as “compelled restitution”.23 Only the repayment of $20,000 was made without the threat of forfeiture.24 The expressions of remorse and contrition 30 The appellant provided a letter of apology to the sentencing judge dated 27 July 2023, around six weeks after bail was revoked when he was found guilty. The letter was brief and acknowledged the appellant’s shame and remorse. 31 Whilst the appellant is not to be punished for mounting a defence to criminal charges, it was perfectly open to the sentencing judge to view the apology with scepticism given that the appellant had lied in his evidence to the judge over a number of days. As the sentencing judge described in the course of his sentencing remarks:25 You gave evidence at your trial denying that you had any involvement in the scheme. You gave various explanations, most of which were nonsense and almost all of which were lies. However, having been found guilty you now accept your involvement in this scheme. You accept that you had been involved in defrauding Telstra of mobile phones, in fact, for about six years prior to the charged offending. I make it clear that you will not be sentenced for charges with which you have not been charged with. The relevance of that background of involvement is that it reduces the leniency that would otherwise be available to you had your offending been isolated. 32 As the sentencing judge later said, the appellant “lied almost from start to finish”.26 In these circumstances it was perfectly open to the sentencing judge, having regard to his position as both trial judge and sentencing judge, to put the appellant’s expressions of remorse and contrition into their proper context. The appellant’s criticisms were both unfounded and failed to demonstrate any error in the exercise of the sentencing discretion. Assault and threat in custody 33 The fact of an assault and threat was accepted, though the material before the sentencing judge was devoid of detail regarding the nature and the severity of the assault, as well as the reason for it. 34 It may be accepted that it will be relevant to consider whether an offender will serve a sentence of imprisonment in a manner that is harsher than other prisoners. Nonetheless, it cannot be said that this was overlooked by the sentencing judge, or that it was necessary to give this factor any significant weight. This 23 Sentencing remarks, p3. 24 See, by way of example only, R v Nath (1994) 74 A Crim R 115. See also McNamara v The Queen (No 2) [2021] SASCFC 43, [25]-[29] (Nicholson, Livesey and Bleby JJ) and the extent of any personal sacrifice required of an offender making restitution. 25 Sentencing remarks, p2. 26 Sentencing remarks, p4. -- 10 of 13 -- [2024] SASCA 112 The Court 7 appears to be a case where it remained open to the Executive to appropriately manage prison security, including the appellant’s safety.27 35 There is no reason to think that the sentencing judge erred when taking this factor into account in the exercise of his sentencing discretion. A manifestly excessive sentence? 36 The parties were agreed that it was appropriate for the sentencing judge to take into account the seriousness of the charged conduct by reference to a number of features involved in the offending, including:28 1. The amount of money or property. 2. The period and number of transactions. 3. The degree of pre-meditation and sophistication. 4. The extent of any dishonesty, breach of trust or corruption, including whether it stopped only because of detection by the authorities. 5. The offender’s knowledge or belief about the origin or ownership of the money and property involved, together with who was to benefit from it. 6. The offender’s explanation or motivation for the offending. 37 In this case it was necessary for the sentencing judge to take into account that more than 100 packages of Apple iPhones with a total value of around $200,000 were dishonestly procured between April and May 2020. Though the charges only spanned some weeks during 2020, the uncharged conduct spanned at least six years. 38 A number of mobiles were recovered. The value of those not recovered was around $83,000. The sentencing judge took into account that the appellant had made restitution to the extent of $20,000, as well as $65,435 in cash forfeited.29 39 On the judge’s findings, this was a carefully planned and relatively sophisticated scheme. The offending involved the infiltration of hundreds of Telstra customers’ accounts in a way designed to ensure that transactions involving stolen funds and stolen property were disguised. The appellant’s involvement in the scheme was marked by his own dishonesty, his corruption of Australia Post employees and the fraud visited on a large number of Telstra customers. 27 R v Lian [2023] SASCA 122, [70]-[71] (Kourakis CJ), [128] (Lovell JA), [144]-[170] (Doyle JA). 28 Cf R v Guo (2010) 201 A Crim R 403 (Beazley JA, Kirby and Johnson JJ); DPP v Singh [2024] ACTSC 202, [24] (McWilliam J). 29 Sentencing remarks, p3. -- 11 of 13 -- [2024] SASCA 112 The Court 8 40 The appellant well knew the source of the money and property unlawfully obtained, as well as its destination. As the sentencing judge explained:30 You played a central role in this scheme which was, at the very least, to organise and nominate delivery addresses, to recruit courier drivers, then take delivery of the fraudulently obtained Apple iPhones and there after sell them. You say that you were around the wrong people in 2020 and that contributed to you making the poor decision that you did. That, of course, does not explain why you were involved in the scheme for the six years prior to that. You submit that the money you received from the phones would go back to Melbourne and Sydney, then from there to Pakistan. You, of course, would receive a portion of the money before it went back to Pakistan. It is plain that you stood to receive a significant amount of money for your involvement in the scheme. 41 The appellant’s evident motivation for this wrongdoing was simply greed. There was no suggestion of financial difficulty. The appellant was otherwise lawfully engaged in a profitable business. 42 It would be wrong to concentrate on the sums involved without also recognising the appellant’s corrupting influence on others. The offending was, in all of these circumstances, very serious and a firm response from the sentencing court was appropriate. 43 Though the appellant referred to other sentences these were, necessarily, of limited assistance for they were distinguishable both as to the charges and the circumstances involved. The limited utility in comparing sentences is well recognised.31 For example, the appellant relied on DPP v Singh where the facts were similar, but the culpability of the offender was markedly different.32 The circumstances concerned a very similar scheme, where the involvement of the offender was confined to his role as an Australia Post employee involved in the diversion of packages of mobile telephones. There, the offender pleaded guilty to four counts of obtaining property by deception for which the maximum penalty was only 10 years imprisonment, a fine of $160,000 or both. 44 This difference in maximum penalties is important, for maximum penalties operate as sentencing yardsticks.33 Moreover, the offender in DPP v Singh had a much lower level of involvement, confined to mis-delivering parcels in exchange for cash, and then over a six-month period.34 The extent of the offender’s reward was limited to a few thousand dollars. 30 Sentencing remarks, p3. 31 Hili v The Queen (2010) 242 CLR 520, [46]-[57] (French CJ, Gummow, Hayne, Crennan, Kiefel and Bell JJ), Bubner v The Queen [2022] SASCA 27, [36]-[37] (Livesey P, Doyle and David JJA). 32 DPP v Singh [2024] ACTSC 202 (McWilliam J). 33 Markarian v The Queen (2005) 228 CLR 357, [30] (Gleeson CJ, Gummow, Hayne and Callinan JJ). 34 DPP v Singh [2024] ACTSC 202 (McWilliam J). -- 12 of 13 -- [2024] SASCA 112 The Court 9 45 There are other cases which, though readily distinguishable, might tend to demonstrate the scope for sentences in the order of that which was imposed in this case. 46 For example, in R v Lean,35 the offending comprised 47 counts of deception and one count of attempted deception in the context of employment with the Aboriginal Health Service. The offender was sentenced to imprisonment for six years and eight months with a non-parole period of three years. The sentencing judge ordered that the sentence be served on home detention. On the successful Crown appeal, that sentence was held to be manifestly inadequate. 47 The offender and her co-accused had concocted an account of events in which they were the victims of an ongoing campaign involving threats and harassment. The concoction extended to creating around 80 letters which threatened them and members of their families with violence and death. As a result, they said that they could longer continue in employment and were provided with alternate accommodation, holidays, medical treatment, and income maintenance payments under workers’ compensation legislation. The Court of Criminal Appeal compared offenders who commit serious offences because of financial need with offenders such as the offender before them who was educated, talented and resourceful, but motivated by greed.36 48 In Lees v The Queen,37 the offending concerned a fraudulent scheme in which, as in this case, the offender assumed a central role.38 The scheme involved computer hacking, targeting multiple organisations. There were 21 offences committed over 18 months. Although the losses were difficult to quantify, they were estimated at around $770,000, of which around $518,000 was recovered.39 The Court of Appeal re-sentenced the offender to a term of imprisonment of seven years, nine months and one day.40 49 Having regard to the nature of the offending in this case, even after allowing for all of the matters to which the appellant pointed, it cannot be said that the sentence which was imposed was unreasonable or unjust. The sentence is not, in the circumstances of this case, manifestly excessive. Conclusion 50 Permission to appeal on the ground of manifest excess should be granted but the appeal dismissed. 35 R v Lean (2017) 128 SASR 451. 36 R v Lean (2017) 128 SASR 451, [47] (Hinton J, with whom Stanley and Nicholson JJ agreed). 37 Lees v The Queen [2022] SASCA 93. 38 Lees v The Queen [2022] SASCA 93, [6] (Doyle, Bleby and David JJA). 39 Lees v The Queen [2022] SASCA 93, [6] and [26] (Doyle, Bleby and David JJA). 40 Lees v The Queen [2022] SASCA 93, [78]-[79] (Doyle, Bleby and David JJA). This was reduced to six years, 10 months and 15 days on account of time in custody and on strict home detention. Having regard to the lack of offending history, expressed remorse, rehabilitation to date and good prospects, the Court fixed a non-parole period of four years. -- 13 of 13 --