Rasel v R [2022] NSWCCA 239

Rasel v R [2022] NSWCCA 239

The sentencing judge erred by treating s 16A(2)(p) as requiring exceptional hardship before the effect of imprisonment on the Applicant's family or dependants could be taken into account. However, after undertaking the resentencing exercise and considering the serious, systematic and sophisticated offending, the misuse of employment-related trust, the impact on identity theft victims and the taxation system, the need for specific and general deterrence, the Applicant's personal circumstances, family hardship, reparation, rehabilitation prospects and harsher COVID-19 custody conditions, the Court was not satisfied that any lesser sentence than the aggregate term of 4 years' imprisonment...

Jurisdiction
Australia
Judgment Date
18 November 2022
Procedural Posture
Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court of New South Wales
Outcome
Leave to appeal granted; appeal dismissed.
Legal Topics
['federal Offences' 'taxation Fraud' 'identity Theft' 'hardship to Family or Dependants' 'section 16 A(2)(p) of the Crimes Act 1914 (cth)' 'resentencing' 'intensive Correction Order']
['criminal Law' 'sentencing' 'criminal Appeals'] ['federal Offences' 'taxation Fraud' 'identity Theft' 'hardship to Family or Dependants' 'section 16 A(2)(p) of the Crimes Act 1914 (cth)' 'resentencing' 'intensive Correction Order']

Case Brief

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Procedural Posture

Criminal Appeal Against Sentence / Application for Leave to Appeal and Appeal in the Court of Criminal Appeal From Sentence Imposed in the District Court of New South Wales

Legal Issues

  1. 1 ['Whether the sentencing judge erred by requiring the Applicant to establish exceptional hardship before taking into account the effect of imprisonment on his family or dependants under s 16A(2)(p) of the Crimes Act 1914 (Cth).' 'Whether, despite the established error, no lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW).' 'Whether the Applicant should be resentenced by imposition of an intensive correction order having regard to family hardship, COVID-19 custody conditions, rehabilitation, reparation and the seriousness of the offending.']

Ratio Decidendi

The sentencing judge erred by treating s 16A(2)(p) as requiring exceptional hardship before the effect of imprisonment on the Applicant's family or dependants could be taken into account. However, after undertaking the resentencing exercise and considering the serious, systematic and sophisticated offending, the misuse of employment-related trust, the impact on identity theft victims and the taxation system, the need for specific and general deterrence, the Applicant's personal circumstances, family hardship, reparation, rehabilitation prospects and harsher COVID-19 custody conditions, the Court was not satisfied that any lesser sentence than the aggregate term of 4 years' imprisonment...

Court Disposition

Leave to appeal granted; appeal dismissed.

Orders

  • ['Grant leave to appeal.' 'Appeal dismissed.']