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Rasel v The King [2022] NSWCCA 230

The offender was sentenced following pleas of guilty to 3 counts of dishonestly obtaining a financial advantage from the Commonwealth contrary to s 134.2(1) of the Commonwealth Criminal Code, 1 count of using identification information with the intention of pretending to be or passing themself off as another person for the purposes of facilitating the commission of indictable offences against a law of the Commonwealth contrary to s 372.1(1) of the Commonwealth Criminal Code, and 1 count of producing documents knowing the documents were misleading contrary to s 137 of the Anti-Money Laundering (Counter-Terrorism) Financing Act 2006 (Cth). Original sentence imposed 4 years imprisonment with a non-parole period of 2 years and 2 months. The offender appealed on the grounds that the sentencing judge erred in not taking into account hardship to the offender’s family, in finding that an intensive correction order was not appropriate or available, and in assessing the offender’s likelihood of reoffending.

Family and Dependants: The sentencing judge’s reference to ‘exceptional hardship’ reveals an erroneous approach to the application of s 16A(2)(p) of the Crimes Act. There is no doubt that there has been a very serious impact on offender’s wife and child on account of the offender’s incarceration. The impact of offender’s incarceration on their parents and siblings is given less weight in light of their less direct relationship with offender. The support that offender had previously provided to their immediate family was derived from their ill-gotten gains and generated an expectation of ongoing support. However, that was a source of support that the family were not entitled to receive in the first place.

Hardship: Offender has suffered the significant additional burdens of lockdowns and extended periods of isolation in prison to a greater degree than would normally be the case. Offender has been required to be in isolation for almost 9 weeks.

Appeal to leave granted. Appeal dismissed.
The CSD acknowledges Aboriginal and Torres Strait Islander peoples as First Australians and recognises their culture, history, diversity and their deep connection to the land. We acknowledge that we are on the land of the traditional owners and pay respects to Elders past and present.

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