Lee v R [2019] NSWCCA 15
Lee v R [2019] NSWCCA 15 · Read the judgment on AustLII
Catchwords: Financial gain as aggravating factor – False identification documents – inherent elements of the offence
The Court of Criminal Appeal (‘CCA’) has found that, unlike certain drug supply offences, profit is not an inherent element of producing identification documents, and in doing so reminded us of how to establish when something is, or is not inherent in an offence.
The applicant and at least four other people were variously involved in the production or use of false identity documents. The applicant’s role was production of the documents, which seem to have mainly been Driver Licences and Medicare cards. A search warrant turned up blank cards, an embossing machine, card printers, computers including images of NSW licences, and other paraphernalia. The fraudulent documents were used by one or more of the other offenders to obtain loans, and were evidently pretty successful, since the 34 sets of false identification the applicant produced led to loans worth just under $600,000. The applicant was sentenced to an aggregate total of 4 years with a non-parole period of 18 months (which included discounts for a late plea and past assistance to authorities). He appealed.
Amongst other findings, the sentencing judge had found that the offences were aggravated by the fact that the offences were committed for financial gain. On appeal, the applicant asserted that dealing in identification documentation has an inherent profit-making purpose through the sale of the information. The Court (Price J, with whom Hoeben CJ at CL and Rothman J agreed) observed that whether financial gain is an inherent characteristic of a particular offence is not determined by an offender’s motive for committing the offence (at [56]). For example, previous authority had held that financial gain is not an inherent characteristic of aggravated robbery. Ultimately the test is whether it is an inherent characteristic that is always present as a permanent and essential attribution of the thing under consideration (at [56]–[57]). This was to be contrasted to a line of authority holding that profit is inherent in certain drug supply offences, where it followed that only profit above that expected at the lowest level could be taken into account (at [55]).
In relation to offences under s192J of dealing with identification information with the intention of committing or facilitating an indictable offence, a number of examples were provided during oral argument apparently illustrating that it is not uncommon for false identity documents to be created for purposes unrelated to profit (at [61] – unsatisfyingly, the examples were not set out in the judgment, possibly to avoid giving anybody any ideas). Although in this case the offender’s motive was profit, that is not an inherent characteristic of the offence, and the sentencing judge did not err by taking financial gain into account. Both this, and the other ground of appeal (manifest excess) were dismissed.