Courts Cannot Consider Agreed Facts Relating to Coaccused During Sentencing

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By Paul Gregoire and Ugur Nedim

After migrating to Australia from Pakistan as a young man in 2001, Zeeshan Kareem met Imtiaz Malik, who, at 16 years his senior, was a respected elder in the local Pakistani community.

In March 2013, Malik asked Kareem for assistance in setting up a business, which was then registered under the name Kareem Enterprises. The older man also asked him to open an NAB bank  account, which both men could access, as Malik couldn’t do this due to two prior fraud convictions.

This process was repeated again the following March, when Kareem, on Malik’s request, registered the business Divergent Trading with another accompanying bank account.

Unbeknownst to Kareem at the time, in May 2013, Malik began a process of salary staging, which involved depositing regular money from Kareem Enterprises into ANZ bank accounts registered under false identities to appear as employee salaries, and then applying for loans and credit cards.

Text messages reveal that Kareem wasn’t aware of the fraudulent activity until 2015. And by the time ANZ twigged to what was occurring, $1,351,274 worth of loans and credit cards had been applied for, with $786,535 worth having been successfully obtained under 15 false identities.

NSW police subsequently arrested both men in June 2018. And officers seized Kareem’s laptops, with these devices containing spreadsheets outlining the transactions, as well as one containing a screenshot of six false identities.

Sentencing for fraud

During an initial police interview, now 41-year-old Kareem denied all knowledge of the fraud. And after being granted bail, he then pleaded not guilty to 41 charges laid against him.

But in August 2020, he agreed to plead guilty to three charges, two of which were “rolled up” versions of the initial charges.

Both offenders subsequently appeared at an 8 December 2020 sentencing hearing in the NSW District Court, where the Crown prosecutor tendered two separate statements of agreed facts, each relating to one of the offenders, who both plead guilty to the same three charges.

The pair admitted guilt to one count of dishonestly causing financial disadvantage by deception, contrary to section 192E of the Crimes Act 1900 (NSW), which is an offence that carries a maximum penalty of 10 years in prison.

The second count was attempting to dishonestly cause financial disadvantage by deception, which is contrary to the same section, as well as section 344A of the Crimes Act, which stipulates that attempting to commit an offence under the Act results in the same maximum penalty.

The final offence that Kareem plead guilt in regard to was dealing with property intended to be used as an instrument of crime, contrary to section 193D of the Crimes Act. Those convicted of this offence are liable to up to 15 years inside.

NSW District Court Judge Julia Baly sentenced Kareen to 4 years prison on 20 December, with non-parole set at 2 years and 4 months. This reflected a 10 percent discount due to the utilitarian value of his guilty pleas, and the fact that Kareem is an accountant was taken as an aggravating factor.

Malik, on the other hand, was sentenced to 5 years and 6 months prison time, with a non-parole period of 3 years and 6 months.

Grounds of appeal

Kareem appealed his sentence to the NSW Court of Criminal Appeal (NSWCCA) on 21 February this year. He did so based on three grounds. The first was that the sentencing judge had made an error in considering some of Malik’s agreed facts, which didn’t appear in his, as applying to him.

The second ground raised was that an error had occurred in considering that Kareem had applied his “skills as an accountant” in the fraud. And the final contention was that her Honour did not consider the hardship his family would endure due to his lengthy time behind bars.

Kareem’s lawyer asserted that the sentencing judge had considered both offenders’ agreed facts as “essentially the same”, and remarks based on Malik’s facts were considered relevant to both men, which led her Honour to determine identical levels of objective seriousness for both offenders.

The appellant’s legal team pointed to a number of facts taken into consideration during sentencing, which, while appearing in Malik’s agreed facts, didn’t appear in Kareem’s. And it was further submitted that Malik’s role in the crimes weren’t readily apparent in his co-offender’s agreed facts.

Appeal determinations

NSWCCA Justice Mark Ierace found that further significant agreed facts sourced from Malik’s documentation were also applied to Kareem in sentencing, which the offender’s legal team hadn’t highlighted on presenting their case.

“It was common ground in the sentence hearing that the applicant’s role in the enterprise rendered him less criminally culpable than the co-offender, for four reasons,” his Honours said, adding these included not initiating the conspiracy and having no involvement with the fake identities.

So, while the sentencing judge did note Kareem’s lesser culpability, this wasn’t reflected in the assessment of objective seriousness, and in describing the joint criminal enterprise, as “the roles of both offenders were described in equal terms” during the conspiracy’s entire duration.

This “leads me to conclude the sentencing judge’s exercise of discretion” was miscarried, which allowed her Honour to consider “extraneous or irrelevant matters” or mistaking the relevant facts, said Justice Ierace. “Accordingly, I find that ground one is made out.”

His Honour then outlined that the other two grounds of appeal didn’t hold, as the spreadsheets on Kareem’s computers reveal his accountancy skills were employed at least partially, whilst in terms of family hardship, the offender’s evidence didn’t indicate such distress that warranted mitigation.

The need for clear delineation

In terms of the differing agreed facts, Justice Ierace found them to be “unnecessarily complex, to a point that the differences in the roles of each offender were obscured”.

“A court that is tasked with sentencing co-offenders on the basis of agreed facts should be provided with facts, either separate or combined, that clearly delineate the roles of each offender,” he added.

His Honour then set out that the objective seriousness of Kareem’s offending was “slightly lower than that determined by the sentencing judge in relation to the co-offender”. And he considered Kareem’s exploiting his position as an accountant to be an aggravating factor on sentencing.

On 5 September this year, Justice Ierace quashed the original sentence and resentenced Kareem to 3 years and 7 months imprisonment, with non-parole set at 2 years. And NSWCCA Justices Derek Price and Natalie Adams agreed with their colleague’s orders.

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