DJF -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 356

[2026] WASC 356 Page 1 JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA IN CRIMINAL CITATION : DJF -v- DIRECTOR OF PUBLIC PROSECUTIONS [2026] WASC 356 CORAM : LUNDBERG J HEARD : 12 AUGUST 2026 DELIVERED : 26 AUGUST 2026 FILE NO/S : SJA 1029 of 2026 BETWEEN : DJF Appellant AND DIRECTOR OF PUBLIC PROSECUTIONS Respondent ON APPEAL FROM: Jurisdiction : MAGISTRATES COURT OF WESTERN AUSTRALIA Coram : MAGISTRATE A. HOCKTON File Number : PE XXXXX of 2023 & PE XXXXX - XXXXX of 2025 Catchwords: Criminal law - Appeal against sentence - Appellant convicted on plea of guilty of seven counts of possessing stolen or unlawfully obtained property contrary to s 417 (1) of the Criminal Code - Appellant convicted of one count of knowingly -- 1 of 29 -- [2026] WASC 356 Page 2 using a false record with intent to defraud contrary to s 424(e) of the Criminal Code - Total effective sentence of 10 months and 30 days' immediate imprisonment - Whether aggregate sentence bore proper relationship to overall criminality - Whether error in finding that criminality the same throughout the entire period of offending - Turns on own facts Legislation: Criminal Appeals Act 2004 (WA), pt 2 Criminal Code, s 417(1), s 424(e) Sentencing Act 1995 (WA), s 6, s 7, s 8, s 9AA, s 76, s 77 Result: Appeal allowed and appellant re-sentenced. Category: B Representation: Counsel: Appellant : G C R Yin Respondent : N R Sinton Solicitors: Appellant : Tasic Legal Respondent : Director of Public Prosecutions (WA) Case(s) referred to in decision(s): Coleman v DPP [No 2] [2025] WASC 144 Gaskell v The State of Western Australia [2018] WASCA 8 Harper v Page [2004] WASCA 267 Hishmeh v The State of Western Australia [2025] WASCA 14 Kabambi v The State of Western Australia [2019] WASCA 44 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Nevermann v The Queen (1989) 43 A Crim R 347 The State of Western Australia v Zhuang [2021] WASC 56 Willenberg v Downey [2015] WASC 282 -- 2 of 29 -- [2026] WASC 356 Page 3 Table of Contents Introduction and summary .......................................................................................................... 4 Factual circumstances ................................................................................................................. 4 The offences ............................................................................................................................... 8 Sentences imposed .................................................................................................................... 10 Grounds of appeal ..................................................................................................................... 13 Relevant principles ................................................................................................................... 13 Ground 2 – express error .......................................................................................................... 15 The appellant's submissions ................................................................................................. 15 The respondent's submissions............................................................................................... 16 Disposition ............................................................................................................................ 17 Ground 1 – implied error .......................................................................................................... 18 The appellant's submissions ................................................................................................. 18 The respondent's submissions............................................................................................... 21 Disposition ............................................................................................................................ 21 Resentencing of the appellant ................................................................................................... 23 Conclusion and orders .............................................................................................................. 28 ATTACHMENT A The appellant's charges and the sentences imposed ................................. 29 -- 3 of 29 -- [2026] WASC 356 LUNDBERG J Page 4 LUNDBERG J: Introduction and summary 1 This is an appeal brought under div 2 of pt 2 of the Criminal Appeals Act 2004 (WA) (CAA) against the sentences of immediate imprisonment imposed by a Magistrate on 24 April 2026. The appeal is opposed.1 2 A total effective sentence of 10 months and 30 days' immediate imprisonment was imposed by the Magistrate in respect of eight property offences, connected to a fraudulent scheme, to which the appellant, who had no prior criminal record, promptly pleaded guilty, after his initial denials when interviewed by police. 3 The Magistrate allowed the maximum discount of 25% for the early pleas. Although the appellant's depth of knowledge of the scheme grew over the period of the offending, it was accepted that the appellant was not the instigator of the scheme, was not involved in the initial fraud, and was acting on instructions, operating in the manner of a conduit for those who engineered the scheme. Although the fraudulent scheme itself was serious, with victims being defrauded of hundreds of thousands of dollars, the appellant's own offending was towards the bottom end of the scale. 4 On appeal, it is contended that the Magistrate erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, and erred in finding that the appellant's criminality was the same throughout the entire period of offending. 5 I accept the first of the appellant's contentions, but not the second. For the following reasons, the appeal against sentence will therefore be allowed and the appellant will be resentenced as indicated in these reasons. Factual circumstances 6 The offences stemmed from the appellant's involvement in a fraudulent scheme, instigated by others, by which investors were persuaded to place money into business accounts believing they were investing in legitimate investment bonds. 1 Within these reasons, the names of the appellant and various interested parties have been anonymised. -- 4 of 29 -- [2026] WASC 356 LUNDBERG J Page 5 7 In mid-2022, the appellant was approached by a friend with what was presented as a legitimate business opportunity. The friend appeared to the appellant to be a successful family man and businessman. The appellant was unemployed at the time and had shared his financial concerns with his friend. 8 As explained to the appellant, the proposed arrangement was that investors would place money into business accounts on the basis that the funds were being used for legitimate investments, including in construction businesses and cryptocurrency. The appellant was to serve an administrative role, for which he would be paid. 9 In truth, the scheme devised by the appellant's friend was anything but legitimate. 10 The general pattern of the scheme involved persons being recruited so that their identity documents could be used to incorporate shell companies and open bank accounts, as well as accounts with cryptocurrency exchanges. Those persons were issued with prepaid phones which were used to relay verification codes. Victims were then approached with business opportunities, for which they advanced funds. Those funds were then disbursed through domestic and international transfers, including to Hong Kong and the United Kingdom. 11 The fraudulent scheme involved a significant amount of funds being deposited into accounts, and then being disbursed. The funds were not recovered. 12 During the course of the appeal, both counsel made reference to the amounts of money involved in the offending, and it appeared there was some discrepancy in the figures. The material facts read at sentencing below referred to the total amount being $815,000.2 However, when the individual amounts referred to in each specific charge are totalled, the overall amount is $765,000. In this regard, it should be recognised there is no specific quantum of funds referred to in count 8. I understood counsel for the respondent to indicate that, when one totals the further amounts which are said to have been received by the appellant, or which passed through the accounts, there is an additional amount of around $33,000 which can be identified as associated with the scheme. 2 ts 6 (16 April 2026). -- 5 of 29 -- [2026] WASC 356 LUNDBERG J Page 6 13 Ultimately, I do not regard this discrepancy as a material matter. The fraudulent loss of at least $765,000 is a serious matter on any view. 14 Commencing in September 2022, the appellant registered five shell companies, including [Company A] which was described as a building consultancy service. [Company A] was set up by the appellant himself, but later companies (such as [Company B] and [Company C]) were established using the identities of other persons who the appellant had approached. 15 The appellant established bank accounts for the entities with NAB and CBA, and with the cryptocurrency exchange known as Independent Reserve. The appellant also held various bank accounts in his own name. 16 Several victims then transferred funds into these accounts after being deceived by others into believing they were investing in legitimate investment bonds. It was not alleged that the appellant was involved in obtaining those funds by fraud, nor that he was ever aware of the scale of the fraud. 17 In order to provide some additional context to the appellant's offending conduct, it is convenient to extract portions of the statement of material facts. The following extract concerns conduct in February 2023, whereby the appellant (who is described as the offender) recruited a person to assist with the establishment of a company to be used in the scheme:3 On or about 2 February 2023, the offender contacted [Person A] … asking if she was looking for money. The offender arranged to meet [Person A] and was provided with instructions from another as to the following conduct. The offender met [Person A] at a local park and later set up a business called [Company B]... On 13 April 2023, using the personal details of [Person A], [the offender] also set up a company called [Company D]… The offender advised [Person A] that all she had to do was create a company and open a business account and others would take care of all of the 'boring stuff'. The offender provided [Person A] with a prepaid mobile device … which he used to communicate with [Person A] and receive codes for bank logins. 3 ts 4 (16 April 2026). -- 6 of 29 -- [2026] WASC 356 LUNDBERG J Page 7 The offender provided [Person A] with the details of a mail account for [Company B] and advised [Person A] to create bank accounts with NAB and Westpac. [Person A] provided the offender with a copy of her driver's licence and a photograph of herself to verify an account with Independent Reserve, which was set up by the offender. The offender provided instructions, advice and information to [Person A] on how to respond to any question raised by financial entities. This included calling the banks and recording the telephone calls. On 19 May 2023, the offender attended a bubble tea store at Whitford Shopping Centre and collected an envelope containing money from [Person A]. 18 The material facts relating to another instance on the part of the offender whereby he established a company and associated bank accounts are as follows:4 On or about 9 February 2023, the offender contacted [Person B], via WhatsApp, and they arranged to meet in person on 13 February 2023 at the Subiaco Hotel. [Person B] was informed of an investment opportunity relating to a consultancy business that dealt with cryptocurrencies. The offender arranged to meet [Person B] and was provided with instructions from another as to the following conduct. The offender created a company called [Company B] … using the person details of [Person B] along with a Westpac business account. The offender issued [Person B] with a prepaid mobile device with the number …, which he used to communicate with [Person B] to receive codes for bank logins and instructions on what to do. The offender also set up an account with the cryptocurrency exchange, Independent Reserve, using [Person B's] identity. The offender requested that [Person B] send a photograph of herself holding a picture of her driver's licence against her face. 19 The material facts relating to one instance in which money was obtained from a victim, and then disbursed by the offender or those involved in the scheme, are as follows:5 On 1 November 2022, [Victim A] … transferred $AU250,000 into [Company A's] NAB account. It is alleged that [Victim A] transferred that money into the [Company A] NAB account, believing that he was investing into a legitimate investment. 4 ts 5 (16 April 2026). 5 ts 6 (16 April 2026). -- 7 of 29 -- [2026] WASC 356 LUNDBERG J Page 8 Upon receipt of those funds, the following transfers occurred, totalling $239,476: $71,794 to [an account] in Hong Kong from the [Company A] NAB account; $164,682 to [an account] in the United Kingdom from the [Company A] NAB account; $3,000 to the ME Bank account in the [offender's] name. Of the remaining $10,524, payments or transfers were used to make various purchases at shopping outlets in Perth. 20 As is apparent from the foregoing, from approximately February 2023, the appellant assisted in recruiting and setting up similar structures for others. The Magistrate found this was an aggravating factor. 21 The appellant was sentenced on the basis that, although he received some modest financial gain from the scheme, he did not instigate the fraudulent plan, was not involved in the fraud in any way, he was acting on instructions, and his offending was towards the bottom end of the scale. 22 The appellant, who had no prior criminal record, was in essence persuaded to perform an administrative role which facilitated the scheme – the fraudulent nature to which he was naïve. More specifically, the appellant's role was to make accounts available for the receipt and movement of funds and, at the direction of others, to assist in establishing further entities, bank accounts, cryptocurrency accounts and related arrangements in the names of other people. The actual transactions were made by someone else. The offences 23 The appellant was charged with eight counts arising out of the above course of conduct. Specifically, he was charged with seven counts of possession of stolen or unlawfully obtained property (contrary to s 417(1) of the Criminal Code) and one count of, with intent to defraud, knowingly producing a false record (contrary to s 424(e) of the Criminal Code). -- 8 of 29 -- [2026] WASC 356 LUNDBERG J Page 9 24 Section 417 provides as follows: 417. Possessing stolen or unlawfully obtained property (1) A person who is in possession of any thing capable of being stolen that is reasonably suspected to be stolen or otherwise unlawfully obtained is guilty of a crime and is liable, if no other punishment is provided under section 417A, to imprisonment for 7 years. Summary conviction penalty: imprisonment for 2 years and a fine of $24 000. (2) It is a defence to a charge under subsection (1) to prove that at the time the accused was allegedly in possession of the thing, the accused had no reasonable grounds for suspecting that the thing was stolen or unlawfully obtained. 25 Section 424 provides as follows: 424. Fraudulent falsification of record Any person who with intent to defraud — (a) makes a false entry in any record; or (b) omits to make an entry in any record; or (c) gives any certificate or information which is false in a material particular; or (d) by act or omission falsifies, destroys, alters or damages any record; or (e) knowingly produces or makes use of any record which is false in a material particular, is guilty of a crime and is liable to imprisonment for 7 years. Summary conviction penalty: imprisonment for 2 years and a fine of $24 000. 26 The offending spanned from November 2022 through to May 2023, with significant sums passing through the appellant's possession. It was accepted below, and on appeal, that the appellant's level of knowledge of the fraudulent scheme was not constant throughout the period of offending. 27 The prosecution case was that, in respect of counts 1 to 4, which occurred between 1 November 2022 and 28 December 2022, the -- 9 of 29 -- [2026] WASC 356 LUNDBERG J Page 10 appellant had no knowledge of the scheme, but his pleas of guilty represented an acceptance that, although he held an honest belief, he reasonably suspected the funds had been unlawfully obtained. 28 Then, with respect to counts 5 to 7, which occurred between 27 February 2023 and 15 March 2023, the prosecution case was that the appellant's state of knowledge elevated to recklessness by reason of his further involvement. 29 Count 8 stands apart from these earlier offences. By May 2023, the appellant well knew the scheme was fraudulent and he prepared a letter and invoice to facilitate the release of certain frozen funds, knowing the documents to be false. Sentences imposed 30 At the sentencing, the Magistrate was provided with: (a) a letter of apology from the appellant dated 10 April 2026; (b) a written pre-sentence report dated 7 November 2025; (c) the State's sentencing submissions dated 16 January 2026; (d) four victim impact statements; (e) the appellant's sentencing submissions; (f) a detailed report prepared by a psychologist, Ms Lisa Kermode, dated 31 March 2026 (Kermode Report), which had been obtained at the request of the appellant's legal representative; and (g) nine character references. 31 The appellant was remanded for sentencing following his first appearance and his pleas of guilty on 16 April 2026. The appearance was adjourned to allow the appellant's solicitor to obtain further clarification regarding the appellant's offer to assist the police with inquiries.6 As matters transpired, the appellant's offer to assist authorities was noted, but ultimately not required, as the police has already acquired the relevant information.7 6 ts 48 (16 April 2026). 7 ts 3 (24 April 2026). -- 10 of 29 -- [2026] WASC 356 LUNDBERG J Page 11 32 At sentencing on 24 April 2026, the Magistrate approached the structuring of the sentences on the basis that the sentence for count 1 was the head sentence, and the sentence for count 2 was to be served cumulatively on the head sentence. The remaining sentences were to be served concurrently. 33 The particulars of the offences, and the sentences imposed by the Magistrate, are set out in the table in Attachment A to these reasons (with the head sentence and cumulative sentence highlighted). 34 The appellant was thus sentenced to a total effective term of 10 months and 30 days' immediate imprisonment, with eligibility for parole. 35 I will next turn to summarise the sentencing remarks of the Magistrate. 36 During sentencing, the Magistrate explained to the appellant the statutory considerations involved in dealing with the relevant offences, giving recognition to the matters required by s 6, s 7 and s 8 of the Sentencing Act 1995 (WA) (Sentencing Act):8 I have to set a sentence which is commensurate with how serious the offending is, and the first question I have to ask myself is what's the maximum sentence which is available to the court in relation to this offence – or these offences, and in relation to all of the offences, the maximum penalty available to the court is one of seven years' imprisonment. That's if the matter were dealt with on indictment. There is a jurisdictional limit of two years' imprisonment or a fine of $24,000 in relation to each of these offences, and, obviously, given that we've got eight offences, and potentially that could be two years' imprisonment on each of the eight offences, which would make a very significant sentence of some 16 years or so. So that's the maximum penalty that is available to this court. I have to consider where you fit on the yardstick of that offending, from nothing, all the way up to two years' imprisonment in relation to each of the offences, and I work that out by considering what are the circumstances of the offence, and I relay [sic – repeat] the circumstances, that you were …relatively … towards the bottom end of the scale. 37 The Magistrate acknowledged that, having been charged with the offences, the appellant had initiated communications between his 8 ts 13 (24 April 2026). -- 11 of 29 -- [2026] WASC 356 LUNDBERG J Page 12 lawyer and the State regarding his charges, and as a result had entered a guilty plea at the earliest opportunity. This was seen as a mitigatory factor.9 38 As noted, given the early guilty pleas, his Honour allowed the maximum discount of 25% under s 9AA of the Sentencing Act. 39 Other mitigatory factors included the appellant's age, his good working history and his co-operation with the police, along with his contribution to the community as a sports coach and as a blood and bone marrow donor.10 40 The Magistrate acknowledged the appellant had no prior criminal history.11 Following sentencing, the Magistrate acknowledged the appellant's lack of criminal history in the following passage:12 … as far as I'm concerned, it would be in the community's best interest for you to be released early on parole, so that you can be supervised in the community to make sure that you continue to deal with your psychological issues at the time that you get released. You've never been in custody before. You don't have that experience, and it's unfortunate that, in my view, your offending is of such a nature that you've, effectively, jumped in at the deep end, as far as offending is concerned. 41 Additionally, the Magistrate had regard to the Kermode Report, which outlined some of the negative impacts the appellant's life experiences had on him, and resulting factors which may have contributed to him offending in such a way.13 42 Upon consideration of the aggravating factors, the Magistrate determined there was a 'degree of persistence', stemming from the appellant's greed and desire to get money quickly and easily, for no reason other than personal gain. No debt was owed, nor was the appellant under duress. 43 The appellant was also described as 'submissive' and effectively a conduit for instructions to other people, doing what he was told rather than considering the risk involved. 9 ts 14 (24 April 2026). 10 ts 11 (24 April 2026). 11 Criminal history report dated 28 April 2026. 12 ts 16 - 17 (24 April 2026). 13 ts 8 (24 April 2026). -- 12 of 29 -- [2026] WASC 356 LUNDBERG J Page 13 44 On balancing the mitigatory and aggravating factors outlined above, and having had regard to the reports provided to the court, the Magistrate considered that a sentence of imprisonment was warranted in the circumstances, given the nature of the offending, based on how serious his offending was, and given the need for general deterrence. 45 I will now turn to identify the grounds of appeal, the applicable principles and the primary submissions advanced by the parties on appeal. Grounds of appeal 46 The appeal has been brought on the two grounds identified in the notice filed by the appellant on 10 June 2026. 47 By that notice, the appellant seeks leave to appeal against his sentence on the following grounds: (a) that the Magistrate erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, having regard to all relevant circumstances including those referable to the offender personally (Ground 1); and (b) the Magistrate erred by finding that the appellant's criminality was the same throughout the entire period of offending (Ground 2). 48 On 1 May 2026, the appellant was granted bail following the filing of this appeal. Relevant principles 49 Before I address the above grounds, it is necessary to set out the principles of law which will need to be applied in determining this appeal. 50 The first set of principles concern the approach to be adopted to an analysis of the sentencing reasons of a Magistrate. In this regard, it has often been recognised that sentencing reasons are delivered by Magistrates ex tempore, against the backdrop of very busy case lists. Requiring Magistrates to provide a full or detailed statement of reasons -- 13 of 29 -- [2026] WASC 356 LUNDBERG J Page 14 in every case would have the potential to adversely impact on the administration of justice.14 51 It follows from this, that an examination by this court of the sentencing remarks of a Magistrate should be undertaken being mindful that those remarks must be read as a whole, and in context, and not be construed minutely and with an eye finely tuned for the perception of error.15 Poring over such reasons with a fine-tooth comb in an endeavour to identify appellable error will typically be an unprofitable exercise, from an appellate court's perspective.16 52 In terms of sentencing principles, the following matters may be regarded as orthodox. 53 First, an appellate court must be mindful not to substitute its own opinion for that of the sentencing court merely because the appellate court would have exercised the sentencing discretion in a different manner: Lowndes v The Queen.17 The sentencing court must be allowed as much flexibility in sentencing as is congruent with consistency of approach and as accords with the statutory regime that applies: Markarian v The Queen.18 As has been recognised by the High Court:19 The discretion which the law commits to a sentencing court is of vital importance in the administration of our system of criminal justice. 54 Second, given this first point, an appellate court can intervene only if the appellant demonstrates either an express or implied material error. Express error involves acting on a wrong principle, for example by mistaking the law or facts or taking into account an irrelevant matter. Implied error arises where the end result is so unreasonable or unjust that the court must conclude that a substantial wrong has occurred: Gaskell v The State of Western Australia.20 55 Third, the first limb of the totality principle, upon which the appellant relies in this appeal, may be described in the following terms:21 14 Nevermann v The Queen (1989) 43 A Crim R 347, 350 (Malcolm CJ). 15 Harper v Page [2004] WASCA 267 [24]. 16 Willenberg v Downey [2015] WASC 282 [61]. 17 Lowndes v The Queen [1999] HCA 29; (1999) 195 CLR 665 [15] (Lowndes). 18 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 [27]. 19 Lowndes [15]. 20 Gaskell v The State of Western Australia [2018] WASCA 8 [127(1)] (Gaskell). 21 Gaskell [127(3)]. See also Kabambi v The State of Western Australia [2019] WASCA 44 [21]. -- 14 of 29 -- [2026] WASC 356 LUNDBERG J Page 15 The first limb of the totality principle requires that the total effective sentence imposed on an offender who has committed multiple offences bears a proper relationship to the overall criminality involved in all of the offences (including those, if any, in respect of which the offender is still serving or is yet to serve a term of imprisonment), viewed in their entirety, having regard to all relevant facts and circumstances including those referable to the offender personally (and including, for example, the desirability of accommodating any wish to rehabilitate), all relevant sentencing factors and the total effective sentences imposed in comparable cases. Ground 2 – express error 56 It is convenient, and appropriate, to address the second ground of appeal first, as it involves a complaint of express error. The appellant's submissions 57 In essence, the appellant characterises this as an error in finding that his criminality was the same throughout the entire period, and sentencing the appellant on that basis. 58 The error reveals itself, according to the appellant, in the fact that counts 1 and 2 carry the heaviest sentences, which ought not be the case given the appellant's lesser knowledge and culpability in the earlier period of the offending. 59 In support of this ground, the appellant fastens upon the following statement made by his Honour below, which formed part of his sentencing remarks:22 So there are - although there are very different amounts in question, I have to set a - the criminality is the same throughout, in my view. 60 The appellant submits this statement reveals error in the sentencing process, in that it is said, on any view, the criminality on the part of the appellant increased markedly in February 2023. Despite this, it is submitted the Magistrate erroneously found the appellant's criminality was the same throughout. The appellant says this must also be viewed against the overall context, on the accepted facts, that in respect of counts 1 to 4 the appellant was not aware the funds were fraudulent, and that from February 2023 he was reckless as to that fact. 22 ts 16 (24 April 2026). -- 15 of 29 -- [2026] WASC 356 LUNDBERG J Page 16 61 The appellant further submits, in its written submissions, as follows: [55] The appellant's principal complaint is that this finding infected the assessment of overall criminality. The criminality was clearly not the same throughout. For Counts 1 - 4, the appellant had no actual knowledge, and he was subjectively not aware he was taking a risk. To treat that mental state as equivalent to the recklessness that characterised Counts 5 - 8 was an error. [56] The effect was to overstate the duration of the offending at the higher level of culpability and to understate the significance of the distinction between the two phases of conduct. The respondent's submissions 62 The respondent, in opposing this ground, submits that the ground is wrongly premised on the assumption that the appellant's state of knowledge is determinative of the question of his criminality. The respondent submits that the Magistrate's finding in relation to the appellant's 'criminality' was that the appellant's criminality was not materially different across the offences despite the differing sums of money involved. 63 By way of explanation, the respondent submits that the Magistrate found that the appellant was not the instigator of the plan and was not involved in the initial fraud in any way. Rather, the appellant was told what to do and he did it. The appellant was towards the bottom end of the scale in relation to the offending, and this is the case in relation to all eight counts. This is said to be apparent from the following portion of the Magistrate's reasons:23 So I'm satisfied that you're not at the very bottom of the pile, but you were acting always on instructions. You were, effectively, the conduit for instructions to other people, and most of the time you were being told to move money from one place to another, or to give someone a code, so that they could move money from one place to another, but you did – and that's what you did. So you were always acting on instructions, and you were towards the bottom of the enterprise. You made – it was done for financial gain. It wasn't done completely innocently. 64 Further, the respondent submits that the appellant's reliance24 on a passage in the Magistrate's sentencing remarks, referring to a comment 23 ts 12 (24 April 2026). 24 AS [51]. -- 16 of 29 -- [2026] WASC 356 LUNDBERG J Page 17 in the pre-sentence report, should not be elevated to a finding on the part of the Magistrate that the appellant was suspicious that the offending was fraudulent at the time he committed the first four offences.25 The Magistrate's comment was that:26 … it does say that your offending was as a consequence of your naivety and trust, and you disregarded your suspicions because of your trust in other people. Disposition 65 First, I accept the submission that, when the above passage is read in context, the Magistrate was not expressing a concluded finding that the appellant held suspicions in the early part of the chronology. Rather, the remark by his Honour was merely that the appellant's naivety and trust contributed to his offending. 66 As to the broader challenge to the determination made the Magistrate, arising from the Magistrate's comment as to the appellant's criminality, I do not consider this has merit, when that comment is seen in context. 67 Plainly, the Magistrate was well aware of the change in the appellant's knowledge over the offending period. The Magistrate expressly observed, elsewhere in his reasons, that:27 So that is – in some way, goes to confirm what your counsel was saying with regards to how you have played a bit role in this, and that once you were involved in it, it was difficult for you to perhaps extricate yourself from it. So that is – explains some way why, having got involved in it, and perhaps became more aware as to the criminality that was involved – having recklessly got involved in it, you then decided to remain there, because you were behaving in a submissive way. 68 The Magistrate also structured the sentence in a manner which reflected some differences across the period of offending, as is evident from the sentence imposed for count 8. 69 But more fundamentally, it should be recognised that the culpability of an offender involves weighing more than one factor. In this case, the knowledge of the appellant was one of the factors to consider, and was no doubt important in the context of this case. 25 RS [27]. 26 ts 15 (24 April 2026). 27 ts 9 (24 April 2026). -- 17 of 29 -- [2026] WASC 356 LUNDBERG J Page 18 70 Recognising that the Magistrate was delivering ex tempore reasons, and being mindful of the principles of law which I have earlier mentioned, it seems to me more likely that the Magistrate was referring at that point in his remarks to his assessment of the overall culpability of the appellant across the period of offending. It reflected his view that, when weighing the various factors involved across the several counts (not only the appellant's knowledge) the culpability of the appellant was largely the same, as noted above. 71 As the respondent's counsel correctly observed in her submissions, an assessment of an offender's criminality or culpability always involves weighing up competing factors, not merely being focused on one factor, such as the offender's knowledge. The analysis is multifactorial, as counsel for the respondent observed during her oral submissions. The respondent accepts that the earlier counts (that is, counts 1 and 2) did not involve actual knowledge or recklessness, but they did involve the largest sums of money compared to the later counts. Ultimately, the sums of money involved are not determinative, either, as the respondent submitted and I consider correctly so. 72 The appellant's concern that the Magistrate overstated the duration of the offending at the higher level of culpability is misplaced, in my respectful view. 73 Ground 2, being an allegation of express error, ultimately fails in my view and must be dismissed. The individual passage relied upon by the appellant, when seen in the full context of the sentencing remarks, does not betray error in my view. Ground 1 – implied error 74 The first ground of appeal relies on the first limb of the totality principle, which I have earlier set out. The appellant's submissions 75 The appellant contends that the Magistrate erred in imposing an aggregate sentence that did not bear a proper relationship to the overall criminality of the appellant's conduct, when regard is had to all relevant circumstances including those referable to the offender personally. 76 The appellant acknowledges that sentences for possessing stolen or unlawfully obtained property can vary widely, reflecting the wide range of circumstances in which such offences can arise. So much has -- 18 of 29 -- [2026] WASC 356 LUNDBERG J Page 19 been accepted by the Court of Appeal.28 As counsel for the appellant noted in his submissions, the wide variation flows from the structure of s 417(1), which operates such that the offence is complete when a person possesses property that a reasonable person would have suspected was stolen or unlawfully obtained, subject to the statutory defence in s 417(2), which is engaged where the accused can prove on balance that he had no reasonable grounds for that objective suspicion. 77 The point that is made in this regard by the appellant is that an offender's subjective belief 'can fall anywhere on a spectrum from a belief the property was lawfully obtained to full knowledge of the property's illegal provenance'.29 The appellant's submissions on this ground then largely proceed as follows.30 1. In respect of counts 1 to 4, it is difficult to identify a factual scenario that involves a lower level of moral culpability for this offence than was apparent in the present circumstances, it being accepted by the prosecution that the appellant was not aware the funds were fraudulent at that stage. 2. In respect of counts 5 to 7, the appellant's state of knowledge was recklessness, with the appellant's psychological make-up being relevant to why the appellant responded as he did once he reached that mental state, and his moral culpability for this conduct is accordingly reduced. 3. The appellant's position stands apart from the comparable decided cases on s 417, such as in The State of Western Australia v Zhuang.31 Those cases are said to have involved offenders who were obviously connected to criminal activity, or offenders whose reasonable suspicion was manifest in the circumstances, which was the case in Zhuang. 4. The Magistrate placed considerable weight on general deterrence but the weight to be applied to this must be dependent on the factual circumstances. An offender who does not know that funds are fraudulent presents a different consideration of general deterrence from one who knowingly participates in the same conduct, according to the appellant. 28 Hishmeh v The State of Western Australia [2025] WASCA 14 [147] (Vaughan and Hall JJA) (Hishmeh). See also Coleman v Director of Public Prosecutions [No 2] [2025] WASC 144 [22] (Cobby J). 29 AS [40]. 30 AS [41] - [49]. 31 The State of Western Australia v Zhuang [2021] WASC 56 (Zhuang). -- 19 of 29 -- [2026] WASC 356 LUNDBERG J Page 20 5. In the present case, the appellant argues that it is difficult to see what generally deterrent purpose is served by imposing immediate imprisonment on a person who honestly, even if unreasonably, believed the arrangement was legitimate and did not know any investors were being defrauded. 6. The appellant recognises this submission carries less force once the appellant's state of knowledge became one of recklessness in February 2023, but only marginally he says, because of the findings as to why that offending occurred. Ultimately, the appellant submits that recklessness remains a lower, or less serious, mental state than was found in the decided cases. 7. The appellant places some reliance on the sentences imposed by the court in Hishmeh in support of this ground, at least in written submissions, but I took counsel for the appellant to accept during the course of the hearing that this authority had limited utility. In that case, the offender was sentenced at first instance to 14 months' immediate imprisonment for two counts of stealing a motor vehicle and three counts of possessing stolen or unlawfully obtained property. The appeal was dismissed. The property in that case included $7,000, a trailer, and a chainsaw. The court found the offender had been actively involved in a criminal enterprise dealing in stolen property. The offender received only a 5% discount for his plea, and had poor antecedents. The appellant submits that the offending in that case was plainly more serious than the present, as the offender was there involved in a criminal enterprise dealing in stolen property. 78 The appellant's submissions conclude, on ground 1, as follows: [47] Having full regard to the mental element alleged against the appellant, his subjective beliefs underlying each count, the finding that the appellant's position was towards the bottom of the offending hierarchy, the powerful mitigating factors and the particular findings about his psychological make-up, it is submitted that the decision to impose imprisonment was unreasonable or unjust such that a lesser option should have been utilised. [48] The appellant's primary position is that, having regard to Ms Kermode's report, the presentence report, the appellant's identified treatment needs and the specific factual assertions in this case, the matter could properly have been dealt with by way -- 20 of 29 -- [2026] WASC 356 LUNDBERG J Page 21 of a community-based disposition. In the event the Court finds that imprisonment was appropriate, it is submitted that the decision not to suspend was unreasonable or plainly unjust. The respondent's submissions 79 The respondent argues that the appellant's reliance on Hishmeh is misplaced. For my part, I draw little from Hishmeh of relevance to the present context and circumstances, noting as well that leave to appeal was refused in that case on the ground alleging there were manifestly excessive sentences imposed, and on the ground alleging infringement of the totality principle (see at [61], [123], and [151]). 80 In substance, the respondent submits that there is an obvious generally deterrent purpose to be served by imposing immediate imprisonment in respect of the first four counts. Specifically, the appellant by his pleas of guilty accepted that he should have suspected the funds were fraudulently obtained. Later, the appellant was reckless as to this fact. The respondent submits that:32 Potential offenders who are offered an opportunity to make money in such circumstances need to know that they must scrutinise that opportunity with great care, lest they involve themselves in illegal activity. 81 Further, the respondent submits that the appellant 'has not established that it was not open to his Honour to impose immediate imprisonment for these offences having regard to the number of offences, the significant sums of money involved, and the appellant's motivation being to get money quickly, notwithstanding the appellant's previously good character, plea of guilty, youth and remorse'.33 Disposition 82 Being mindful that my task is not to assess whether I would have imposed a different sentence to that imposed at first instance, I am of the opinion that the sentence imposed on the appellant was unreasonable and unjust, in all the circumstances including when regard is had to the offender's personal circumstances. The total effective sentence imposed by the Magistrate (being 10 months and 30 days' immediate imprisonment) does not bear a proper relationship to the overall criminality involved in all of the offences, in my respectful view. 32 RS [37]. 33 RS [38]. -- 21 of 29 -- [2026] WASC 356 LUNDBERG J Page 22 83 I accept it is difficult in respect of offences such as these to draw comparisons with other cases, given the wide variety of circumstances in which such offending occurs. The decisions referred to by the appellant, namely Hishmeh and Zhuang, are of limited assistance in my view. 84 In the present case, I regard the culpability of the appellant as at the low end of the scale for offences of this nature, especially for counts 1 to 4, which involved $475,000 in fraudulent funds being acquired and disbursed (more than half of the total funds the subject of the offences). Undoubtedly, the appellant's state of knowledge changed over time, and was rising during the commission of counts 5 to 7, to the point at which he had actual knowledge of the fraud when count 8 was committed in May 2023. 85 Further, while there were aggravating features of the offending, such as the decision to recruit others to the scheme, the financial gain by the appellant, the vulnerability of the victims, and the duration of the offending, I consider the overall moral culpability of the appellant must be examined through the prism of the appellant's state of knowledge, as just explained. Further, the financial gain involved, from the appellant's perspective, given his narrow, administrative role in the scheme, was modest at best. 86 Against this, the appellant presented for sentencing with a substantial array of mitigating factors, including his early plea of guilty and cooperation with the authorities, his genuine remorse (as is quite evident from his letter to the court dated 10 April 2026), and both his prior good character and prosocial history. 87 There are some additional features personal to the appellant which require comment. The Magistrate accepted that the appellant's psychological conditions would render custody more onerous for him.34 The Kermode Report also demonstrates that the appellant is a submissive person, who subordinates his own needs and preferences in order to please others, and who displayed attachment insecurity and had poorly developed coping resources.35 88 The psychological assessment of the appellant provides a further basis to conclude that the appellant's moral culpability was low, with the appellant having an elevated psychosis score showing an impaired 34 ts 16 - 17 (24 April 2026). 35 Kermode Report, p 9. -- 22 of 29 -- [2026] WASC 356 LUNDBERG J Page 23 ability to accurately assess legality and appreciate the consequences of his actions.36 89 These matters provide context for the offending in this case, which undoubtedly involved a fraudulent scheme through which innocent victims were defrauded of their funds, and those funds were, in total, substantial. Further to this, it must be recognised that fraudulent schemes and scams such as this are increasing and readily perpetrated, with victims often being vulnerable persons in our community. 90 That being the case, typically there is a strong need for punishment to reflect general deterrence considerations, but this is lessened where the offender's role is narrow in compass and he performed an administrative role for almost all of the period of offending. He was not an instigator and acted on instructions throughout, acquiring actual knowledge in the final stage of the offending. 91 These matters also strongly suggest the weight to be given to factors of personal deterrence in the sentencing process is low in the present circumstances. 92 The sentence of 10 months and 30 days' immediate imprisonment imposed on the appellant, across the 8 counts, did not bear a proper relationship to the overall culpability of the appellant, given the matters I have emphasised above. In particular, a sentence of immediate imprisonment, rather than a suspended term, was unjust in all the circumstances. 93 The implied error asserted by the appellant has been established in my view. I would therefore uphold ground 1 and set aside the sentence below. Resentencing of the appellant 94 Given the conclusion I have reached in relation to ground 1, it will be necessary for the appellant to be resentenced on each of the counts. 95 In undertaking that exercise, I will not repeat all of the matters I have already discussed in these reasons. It is sufficient for me to say the following: 36 Kermode Report, p 12. -- 23 of 29 -- [2026] WASC 356 LUNDBERG J Page 24 [DJF], it is necessary that the court now re-sentence you for the eight offences with which you were charged and to which you have pleaded guilty. The sentences imposed on you for these offences must be commensurate with the seriousness of the offences. In this regard, I must take into account the statutory penalty for the offences, the circumstances of the commission of the various offences, including the vulnerability of the victims, as well as any aggravating factors and any mitigating factors. The statutory penalty for offences under s 417(1) of the Criminal Code, as well as under s 424(e), is a sentence of imprisonment for a maximum of two years and a fine of $24,000. Further, I must not impose a sentence of imprisonment on you unless I am satisfied that the seriousness of the offence is such that only imprisonment can be justified, or the protection of the community requires it. I have had regard to the material facts which were read during the sentencing process in the Magistrate's Court in April this year. The sentences must be based on those facts. I have also read the submissions made on your behalf at the original sentencing as well as, obviously, those made by your counsel during the course of this appeal. The fraudulent scheme itself was serious, with innocent victims of the Western Australian community being defrauded of substantial sums. Those victims were strangers to you. Their only mistake was to trust you and to trust the others who perpetrated this wrongdoing. That mistake has cost them substantial sums, at least collectively. The Western Australian community deserves protection from fraudulent schemes such as this, and one way to further that outcome is to ensure that those persons involved in such schemes are appropriately punished by the courts. But such persons may have different levels of involvement in these schemes, from those who are the architects or perpetrators of the schemes, to those persons who are enlisted to assist in implementing the schemes. -- 24 of 29 -- [2026] WASC 356 LUNDBERG J Page 25 You were not an instigator of this scheme, [DJF]. I accept that. You had a lesser role, and because of your naivety and trust, and your submissiveness, you were well suited to be enlisted by others to assist them. You became involved in the fraudulent scheme which underpins these offences at the request of other persons. You were not involved in the initial fraud, and you were acting on instructions, securing only a modest financial gain from the scheme. In essence, you were operating as a conduit for those who engineered the scheme. That does not excuse your offending, but it means the court should reflect this in the sentencing process. That said, your state of knowledge is one of the important features of the offending, but it is not the only feature. The court should recognise that the largest tranches of funds which were involved in this scheme were fraudulently disbursed during the period you had no actual knowledge, but during which you accept by your pleas of guilty there existed a reasonable suspicion of the fraudulent nature of the scheme. There was also a degree of persistence by you which emerges from the overall course of offending, stretching for several months. You ultimately acquired direct knowledge of the fraud by the time the final offence was committed, and you proceeded to act to enable frozen funds to be released, having that direct knowledge. You did not at that point seek to escape the scheme – rather, you stayed loyal to the scheme. That was a serious matter, albeit it relates only to the final count. I need to reflect that in the sentencing process. There are matters personal to you, [DJF], which need to be noted and which operate to mitigate the sentence the court would otherwise impose. I recognise that you are a person of good character, [DJF]. You had no criminal record before these offences were perpetrated. You were [redacted] years of age when these offences occurred. You are now [redacted] years of age. I accept you have shown genuine remorse for the offending. This course of conduct is an aberration for you. -- 25 of 29 -- [2026] WASC 356 LUNDBERG J Page 26 I must also reflect the early plea of guilty at the first reasonable opportunity and your offer of cooperation with the authorities. I consider the full discount of 25% is appropriate in these circumstances and I will take that into account in the sentencing process. I regard the nature of the offending as serious, being a fraudulent scheme designed to unlawfully convince members of the community, typically vulnerable members, to invest their money. The sentencing process must give proper weight to the need for general deterrence. The sentence must ultimately send a message to all persons involved in fraudulent schemes such as this, that appropriate punishment will follow. I accept that personal deterrence considerations require much less weight in the circumstances, though. As I have said, this is an aberration on your part. You were a pawn in this criminal enterprise, other than in respect of the final offence where you had the opportunity to act lawfully, given your direct knowledge, but you did not. Given the overall seriousness of the offending, viewed objectively, I do not consider a community based disposition is appropriate, but for reasons I will address, I consider that a sentence of immediate imprisonment is also not appropriate and a suspended period of imprisonment should be imposed, pursuant to s 76(1) of the Sentencing Act. The sentences of imprisonment I will impose, reflecting the principle of totality, are as follows: Count 1: a sentence of 4 months' imprisonment, being the head sentence; Count 8: a sentence of 4 months' imprisonment, to be served cumulatively on the head sentence; and Counts 2 to 7: a sentence of 3 months' imprisonment on each count, to be served concurrently with the head sentence. That is a total effective sentence of 8 months' imprisonment, which reflects the 25% discount for the early pleas of guilty. Other than for counts 1 and 8, I have structured the sentences to -- 26 of 29 -- [2026] WASC 356 LUNDBERG J Page 27 be concurrent given the totality principle, and bearing in mind the need to avoid a crushing sentence on you. The concurrent nature of the sentences also reflects the reality that the offending was largely a single course of conduct. To be clear, I consider the seriousness of the offences are such that only imprisonment can be justified as the appropriate disposition in this case. But when I review the various factors again, that is the mitigating and aggravating factors, and the circumstances of the offences, I am simply not positively satisfied that it is not appropriate to suspend the terms of imprisonment. I am of the view that the period of imprisonment ought be suspended. I will come back shortly to discuss that period of suspension with both counsel. This will mean that, should you re-offend in the relevant period, and where the statutory penalty for that offence includes imprisonment, it is open to the court which sentences you to order that you serve the periods of imprisonment which I have just suspended. [DJF], this process has no doubt been a cathartic one for you, and your family. You came to the court having never been to prison before and in April this year you served seven days in custody before being granted bail. The sentence I am imposing on you will mean that you will not serve any further period of imprisonment for these offences, at least unless you re-offend in the manner I have indicated. Sometimes offender's before the courts say that their experience with the criminal justice system acts as a 'wake-up call' for them. It puts them on notice that they need to change their behaviour in the future, to avoid repeating prior behaviour. There seems less need here, [DJF], for you to be given a 'wake-up call', given your lack of criminal history and the reality that this offending is out of character for you. Yet there are strong indications in the materials that you are impressionable, naïve and overly trusting. Persons such as you may find themselves being enlisted into criminal service by others, as you were in 2022 and 2023. To recognise your own naivety may be the wake up call for you, [DJF]. -- 27 of 29 -- [2026] WASC 356 LUNDBERG J Page 28 These criminal endeavours are less able to be perpetrated if all members of the community remain on guard, including those who would be recruited to foolishly perform the dirty work of others. The total sentence I impose reflects the fact that even persons such as you bear responsibility for the effects of such fraudulent schemes. Conclusion and orders 96 For the foregoing reasons, I would allow leave to appeal on ground 2 but dismiss that ground. I would allow leave to appeal on ground 1 and uphold that ground, and set aside the sentence imposed on 24 April 2026. 97 I have resentenced the appellant as indicated above, to a total effective term of imprisonment of 8 months, which will be suspended for a period of 18 months from today, in accordance with s 76(1) and s 77(2) of the Sentencing Act. I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia. IR Associate to the Hon Justice Lundberg 26 AUGUST 2026 -- 28 of 29 -- DRAFT LUNDBERG J Page 29 ATTACHMENT A The appellant's charges and the sentences imposed No. PE Charge Offence Dates of Offences Value Sentence 1 XXX/2025 Possession of stolen or unlawfully obtained property contrary to s 417(1) of the Criminal Code. 22.11.22 $250,000 5 months 15 days immediate imprisonment (head sentence) 2 XXX/2025 As above. 16.11.22 to 16.12.22 $250,000 5 months 15 days immediate imprisonment cumulative 3 XXX/2025 As above. 23.11.22 $25,000 4 months immediate imprisonment concurrent 4 XXX/2025 As above. 22.11.22 to 15.12.22 $50,000 4 months immediate imprisonment concurrent 5 XXX/2025 As above. 27.02.23 to 02.03.23 $40,000 4 months immediate imprisonment concurrent 6 XXX/2025 As above. 07.03.23 to 08.03.23 $90,000 4 months immediate imprisonment concurrent 7 XXX/2025 As above. 13.03.23 to 15.03.23 $60,000 4 months immediate imprisonment concurrent 8 XXX/2023 With intent to defraud, knowingly produced a false record contrary to s 424(e) of the Criminal Code. 10.05.23 N/A 5 months immediate imprisonment concurrent Total effective sentence of 10 months and 30 days' immediate imprisonment -- 29 of 29 --