Chen v R

[2015] NSWCCA 277

Court of Criminal Appeal (NSW)|2015-10-21|Before: Hidden J, Davies J, Adamson J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2015-10-21

Before

Hidden J, Davies J, Adamson J

Source

Original judgment source is linked above.

Judgment (22 paragraphs)

[1]

Solicitors: Ren Zhou Lawyers (Applicant) C Hyland, Solicitor for Public Prosecutions (Respondent/Crown) File Number(s): 2013/274435 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Date of Decision: 10 October 2014 Before: Madgwick ADCJ File Number(s): 2013/274435

[2]

Judgment

HIDDEN J: The difference between the non-parole periods imposed upon the applicant and his co-offender is certainly marked. However, in the light of the distinction between the objective criminality and subjective circumstances of the two, I agree that it cannot be said that his Honour's discretion miscarried. I agree with the orders proposed by Adamson J.
DAVIES J: I agree with Adamson J.
ADAMSON J: The applicant, Wei Zhong Chen, seeks leave to appeal against the severity of a sentence imposed on him by Madgwick ADCJ at the District Court at Sydney on 10 October 2014 for various offences relating to identity fraud, to which he pleaded guilty.
His Honour also sentenced a co-offender, Ke Yan Chen. However, although the sentence hearings in respect of the applicant and the co-offender began on 10 October 2014, the co-offender's sentence was not passed until 16 December 2014, as the co-offender wished to rely on a pre-sentence report. The same counsel appeared on behalf of the applicant and the co-offender at the sentence hearings on 10 October 2014 (when the applicant was sentenced), although other counsel appeared for the co-offender on 10 and 16 December 2014. No issue was raised by the applicant about the joint representation.

[6]

Offences of dealing with identification information: s 192J of the Crimes Act

Six of the charges (sequences 2, 4, 7, 9, 10 and 24) were offences against s 192J of the Crimes Act 1900 (NSW), dealing with identification information, for which the maximum penalty was 10 years and no Standard Non-Parole Period (SNPP) was prescribed. The conduct referable to each of these charges is set out in the table below: Sequence No. / Time Conduct Indicative sentence 2 / June-August 2013 Dealing with identification information that related to a fictitious person, Michael Sarhat, with the intention of making a false NSW driver's licence. 3 years 4 / July 2013 Dealing with identification information associated with a driver's licence in the name of a fictitious person, David Barreti, which was used to establish the identity of a credit card holder on two occasions 5 years (including Form 1) 7 / August 2013 Dealing with identification information relating to Peter Lamont and James Ashford relating to credit cards which were subsequently used for unauthorized transactions 3 years 9 / August 2013 Dealing with identification information relating to the production of a driver's licence in the name of Xiao Min Chen and a credit card in the name of Larry Hai which was subsequently used to make a fraudulent purchase 3 years 10 / 21 August 2013 Dealing with identification information relating to a credit card in the name of Bob Zhang which was used to make a fraudulent purchase and use in an attempt to make a further fraudulent purchase 3 years 24 / unknown but prior to seizure by police on 10 September 2013 Dealing with identification information relating to 125 partially completed NSW driver's licences containing names, dates of birth, addresses, licence numbers and card numbers. 3 years

[8]

Offences of possess equipment to make false document: s 256(1) of the Crimes Act

Five of the charges (sequences 12, 13, 14, 15 and 18) were offences against s 256(1) of the Crimes Act, possess equipment to make false document, for which the maximum penalty was 10 years and no SNPP was prescribed. These charges arose out of the seizure by police of items from the applicant's unit in Riverwood on 10 September 2013 pursuant to a lawful warrant. The primary bedroom in the unit (of which the applicant was the only user) was set up as a sophisticated identification manufacturing operation. The items referred to in sequences 12, 13, 14 and 15 in the table below were found in the bedroom of the applicant's unit at Riverwood. The items referred to in sequence 18 in the table below were found in a kitchen drawer in a unit at Beverly Hills which was the applicant's main place of residence at the time of his arrest on 10 September 2013.
The conduct referable to each of these charges is set out in the table below: Sequence No. Conduct Indicative sentence 12 Possession of three card printers located inside a bedroom. 3 years 13 Possession of a tipping machine (used to apply the coloured finish, usually gold, silver or black, to embossed or raised numbers or letters such as appear on genuine credit cards and Medicare cards), a laminator and three electronic embossing machines. 3 years 14 Possession of 167 plastic cards with branding of various Australian institutions (including Westpac, National Australia Bank and Commonwealth Bank) and 70 non-embossed white plastic cards, some of which had a magnetic stripe. 3 years 15 Possession of 578 (being the remainder of the total of 703 false NSW drivers licences found in the bedroom, once the 125 licences which had identification information on them were deducted: see sequence 24 above) driver's licences in various states of preparation. 3 years 18 Possession of 101 cards containing a design and the word "Medicare" resembling genuine Medicare cards, both in appearance and quality. 3 years

[13]

The first day: 10 October 2014

The Crown tendered the (joint) Agreed Facts and a Form 1 in respect of each of the applicant and the co-offender. The Crown also tendered the criminal and custodial histories of each. Mr Greenhill SC, who appeared on behalf of the applicant and the co-offender, tendered references in support of the applicant from his then de facto wife (subsequently legal wife) and a friend, Mr Xu, for whom he performed work as a part-time welder and references in support of the co-offender from his brother and his employer, Jimmy Dai.
The Crown confirmed that the applicant, having been granted bail for a period, had been in custody for three months and the co-offender had been in custody since his arrest on 10 September 2013. The Crown accepted that both pleas were made at the first available opportunity.
His Honour raised the relative culpability of the two offenders with Mr Greenhill who confirmed that he would not seek to argue that the applicant did not have an important role. Mr Greenhill also confirmed that he would not make a submission that custodial sentences were inappropriate in either case. His Honour indicated to Mr Greenhill that a sentence of eight years after a trial (that is, without a discount for the plea of guilty) "would not be too much" for the applicant.
His Honour indicated that he did not discern any special circumstances with respect to the applicant. The following exchange occurred: "GREENHILL: …I'm instructed to submit to your Honour that there are special circumstances by reason of him having a six year old daughter. Your Honour I realise the shaky ground on which I make that submission." HIS HONOUR: Yes. GREENHILL: But I can't think of any other special circumstances which would result in any mitigation of the offences."
His Honour repeated the figure of eight years for the applicant (prior to the discount for the plea) and invited Mr Greenhill to make submissions as to why any lesser sentence was warranted. Mr Greenhill accepted that the offences were committed while the applicant was on a good behaviour bond pursuant to s 9 of the Act for unrelated matters (common assault and breach of Apprehended Violence Order). He made the general submission that a starting point of eight years was too high.
In respect of the co-offender, Mr Greenhill submitted that there were special circumstances: that he had no criminal prior history although he was 48 years old; it was his first time in gaol (and that he had been in custody since his arrest on 10 September 2013) that he had good prospects of rehabilitation; and that his was a "different case to [the applicant]". His Honour asked why there was no pre-sentence report and was told that it had not been sought. His Honour proposed to adjourn the proceedings in respect of the co-offender to enable such a report to be obtained. His Honour indicated that he was considering an aggregate sentence of three years but that he would consider whether to find special circumstances in light of the pre-sentence report on the adjourned date, 12 December 2014. His Honour referred to the fact that by that date the co-offender would have already spent a significant time in custody and raised the possibility of his being released to parole on the adjourned date.
At the conclusion of the hearing on 10 October 2014 his Honour delivered remarks on sentence regarding the applicant, which are summarised below.

[15]

The remarks on sentence in respect of the applicant (delivered on 10 October 2014)

His Honour recounted the nature of the offences and the maximum penalties for each. He said of the applicant: "[He] may be seen as the master printer of cards of varying kinds, credit cards and cards identifying fictitious people which, to a high level of scrutiny, would pass as Medicare cards and New South Wales driver's licences."
His Honour referred to the sophistication of the operation and to the "very substantial operational effort involved". The sentencing judge described the applicant as "a man in his fifties who had skills and experience as a gyprock installer, a trade which can produce an acceptable living wage". Of his criminal history his Honour said: "He has previous convictions for dishonesty and minor violence and in particular was sentenced in Queensland to two and a half years imprisonment for involvement in a similar scheme. He had earlier in New South Wales been dealt with in a non-custodial way for credit card fraud too, including having custody of materials designed for making false instruments being 201 blank credit cards and on the information then put before the Court, he was dealt with merely by way of a fine of $5,000. Subsequent history suggests that he was dealt with, in fact, in an unduly lenient way then."
After describing the nature and extent of the applicant's offending conduct, his Honour referred to the need for specific deterrence, particularly in light of his criminal history and general deterrence by reason of the harm to the community from such offences.
His Honour noted the basis of the applicant's submission that there were special circumstances; accepted that his incarceration and separation from his child would be "a matter of pain for him and her" but found that there was "nothing unusual" about that and refused to find special circumstances.
The sentencing judge confirmed his view that "nothing but what I regard as a really heavy sentence is appropriate" and said that, but for the plea, for which he applied the maximum discount of 25%, a sentence of eight years with a six year non-parole period would be imposed.

[16]

The remarks on sentence delivered in respect of the co-offender (delivered on 16 December 2014)

The sentencing judge referred to the remarks given on 10 October 2014 and incorporated them by reference into his remarks on 16 December 2014. Of the co-offender's criminal conduct, his Honour said: "To summarise the detailed material before me in relation to the present offender, he acted as a conduit, passing stolen or credibly manufactured credit card numbers and/or identification details in relation to such things as Medicare cards and drivers licences to Zhong, who would use the names and numbers he was given to forge credit cards and other identification cards for dishonest use by others. The prisoner also had in his possession a couple of items of equipment, in particular one machine which can be used to read the data on the data strip of genuine credit cards, a process commonly known as "skimming", and can also be used to encode the magnetic data stripe on a false credit card of the kinds which were seized from the premises associated with Zhong and the present prisoner. A small number of cards were found at Chen's home that appeared consistent with the data required to complete credit card transactions. There were also computers and computer equipment containing files relevant to the fraudulent scheme including catalogues relating to various point of sale products including user manuals for one of the machines which the prisoner had."
His Honour found that the applicant was engaged in the fraudulent organisation at a "considerably higher level" than the co-offender and described the applicant as a real "lynchpin of the execution of the scheme". His Honour described the co-offender's role as not significantly higher than a mere conduit.
The sentencing judge referred to the co-offender's age at the time of the offending, 48, and his lack of prior criminal history. His Honour considered that due to his unhappy marriage and unsuccessful career, the co-offender started to smoke marijuana in early 2013 and that he probably became involved in the fraudulent activity "in a condition of demoralisation and hopelessness". His Honour referred to his references and the prospects of his obtaining gainful employment on his release.
His Honour referred to the need for parity, having regard to the sentence imposed on the applicant and considered that an appropriate aggregate sentence would be three years' imprisonment. His Honour found special circumstances on the basis of the co-offender's prior good character and his "above average" prospects of rehabilitation and adjusted the statutory ratio to 50%.
The sentencing judge nominated the following indicative sentences in respect of the co-offender: six months for two offences; 18 months for five offences and three years for one offence, including the Form 1.

[19]

The starting point for each of the co-offenders with respect to the larceny of the DVD players was four years. This was discounted by 25% for Dick and Namana by reason of their pleas of guilty; it was discounted by 50% for Baker by reason of his plea and the assistance he had given to authorities.
About a year later, on 25 November 2005, Tatana came to be sentenced by Boulton ADCJ. He had been acquitted of the two offences identified as '1' and '2' in the table set out above and had pleaded guilty to the offence of larceny of the DVD players. Acting Judge Boulton adopted the same starting point of four years as Berman DCJ and applied a discount of 15% for Tatana's plea. His Honour imposed a term of imprisonment of three years with a non-parole period of two years and six months. Tatana sought leave to appeal on several ground, including, of present relevance, that the sentencing judge "did not exercise parity regarding the sentence of the co-offenders".
Justice Howie (Sully and Latham JJ agreeing) rejected Tatana's argument that Boulton ADCJ ought to have found special circumstances on the basis of matters personal to Tatana. His Honour also rejected the parity complaint with respect to the head sentence for the larceny count. However, on the basis of this Court's decision in R v Do [2005] NSWCCA 209, Howie J considered that Boulton ADCJ was obliged to consider the end result of the sentencing process and address the issue of parity before passing sentence with a view to remedying any disparity which could give rise to a justifiable sense of grievance.
Justice Howie considered that, in the particular circumstances of that case, the fact that Tatana had to spend longer in custody than his co-offenders who had committed "significantly more crime" gave rise to a relevant disparity. His Honour considered that, in order to avoid Tatana's justifiable sense of grievance, the sentencing judge ought to have found that parity with the co-offenders amounted to special circumstances which would justify a reduction in an otherwise appropriate non-parole period.
This Court accordingly allowed the appeal by reducing Tatana's non-parole period to one year and nine months (from two years and six months).
Accordingly, Tatana v R stands as authority for the proposition that disparity can, of itself, constitute "special circumstances" so as to permit a departure from the statutory ratio in s 44(2) of the Act. This is the basis on which the applicant seeks leave to appeal to this Court, and an order adjusting the statutory ratio so as to reduce his non-parole period from four and a half years, while leaving his total term intact.
Because of the nature of the sentencing task, it is not fruitful to engage in too close an analysis of the differences between individual cases. Nonetheless an important difference between the applicant's circumstances and that of the co-offender is that the applicant's criminality, and corresponding moral culpability was (unlike Tatana's) significantly greater than the co-offender. Moreover, the applicant and co-offender were sentenced by the same judge, which constitutes a separate reason why this Court ought be slow to interfere on the basis of parity: R v Swan [2006] NSWCCA 47 at [71] per Barr and Howie JJ.
Further, the applicant was represented by the same counsel as the co-offender. As set out above, his Honour foreshadowed, in the sentence proceedings on 10 October 2014, that the sentence that he was inclined to impose on the applicant (6 years with a non-parole period of 4 ½ years) and on the co-offender (3 years). Although his Honour did not specify the non-parole period he was contemplating for the co-offender in years or months, his Honour signaled that at least one possibility was that the co-offender would be released on parole at about the time of the adjourned hearing (December 2014). Since the applicant and co-offender had been arrested on 10 September 2013, this scenario foreshadowed at least the possibility that the non-parole period for the co-offender could be as short as 15 months (which was even less than the 18 months eventually imposed).
Thus, the applicant's counsel was on notice in the course of the sentence hearing of the likely sentences to be imposed on both his clients. No submission was made to his Honour that such sentences might give rise to disparity. Nor was it submitted that special circumstances ought be found in respect of the applicant on the separate basis of disparity even if his other basis for special circumstances (separation from his daughter) was rejected. I do not accept the hypothesis advanced by the applicant's counsel in this Court that Mr Greenhill may have overlooked this matter. Nor was any suggestion made that he failed to raise it by reason of any conflict of interest between his clients.
As was said in Edwards v R [2009] NSWCCA 199 at [11] (and reiterated frequently since, including in Zreika v R [2012] NSWCCA 44 at [77]-[83] per Johnson J): "It is the duty of counsel appearing for an offender at a sentencing hearing to assist the court by making relevant submissions at that time on issues of fact and law. A sentencing court is entitled to expect assistance from counsel, in discharge of counsel's duty to the court and the client, with respect to relevant issues. ... The public interest is served by counsel discharging his or her duty to the court and the client."
Parity arguments, such as the one advanced on behalf of the applicant, do not generally fall into the category of submissions that might have been, but were not, put below as the sentence to be imposed is infrequently foreshadowed as clearly as it was by Madgwick ADCJ. However, as it must have been apparent that the parity argument was open and provided a further, and independent, ground for a finding of special circumstances, it is telling that the applicant's counsel did not contend for it on sentence and provides some indication that the substantial difference between sentences was not thought to be unwarranted.
In the present case, every matter of distinction between the applicant and the co-offender indicated that the applicant's sentence ought be significantly longer. First, the applicant's role was significantly greater; he was sentenced for a substantially greater number of offences; and the matters on his Form 1 were considerably more extensive. The greater the difference between the criminality of the applicant and the co-offender, the more difficult it is to identify and establish relevant disparity: Green v The Queen [2011] HCA 49 at [30].
Secondly, the applicant had a significant prior history, including for similar offences and was on a bond at the time of the offending conduct; the co-offender had no prior history and had a prior good character. Thirdly, the co-offender was found to have "above average" prospects of rehabilitation. Fourthly, the applicant was a recidivist whereas the co-offender was regarded as being deserving of sympathy, having fallen into criminal conduct as a result of his unfortunate personal and work circumstances which led to his recent drug-taking.
The parity principle is fundamental to the sentencing of co-offenders. It is "an aspect of equal justice [that] like should be treated alike but that, if there are relevant differences, due allowance should be made for them": Postiglione v The Queen [1997] HCA 26; 189 CLR 295 at 301 per Dawson and Gaudron JJ. I do not regard the substantial difference between the 18 months which the co-offender was required to spend in custody and the four and a half years which the applicant is required to spend in custody (being the respective non-parole periods), as amounting to more than "due allowance". In my view, the substantial differences in charges, objective criminality, prior history, subjective circumstances and prospects of rehabilitation were not such as to make a difference of that order unwarranted. In these circumstances, I do not accept that any sense of grievance on the part of the applicant is justifiable or such as would warrant a reduction of the non-parole period.

[20]

Additional matter

At the hearing of the appeal, this Court raised an apparent error in the commencement date of the sentence imposed by his Honour. The sentence imposed on 10 October 2014 was expressed to commence on 10 July 2013. The back-dating was intended to take account of the applicant's three months' pre-sentence custody. On this basis, it ought to have been backdated to 10 July 2014. The error was not identified at the time.
However, after the imposition of the applicant's sentence (which occurred on 10 October 2014), his Honour became aware that, although he had intended to discount the aggregate sentence by 25% for the plea of guilty, the discount was not reflected in the orders made. Accordingly, his Honour re-listed the matter for mention on 24 October 2014 in order to correct this omission. On that day, his Honour said that the sentence was back-dated "to a degree" but did not specify the date to which it was to be back-dated. The error in the commencement date specified in the order made on 10 October 2014 was not identified and, thus, was not corrected.
I am satisfied, having regard to the material provided by the Crown, that his Honour's reference to 10 July 2013 (rather than 2014) was an error. As I consider that, although leave to appeal ought be granted, the appeal ought be dismissed, it is appropriate to remit the matter to the District Court pursuant to s 12(2) of the Criminal Appeal Act 1912 (NSW) for the purposes of re-opening proceedings pursuant to s 43 of the Crimes (Sentencing Procedure) Act to correct the sentencing error in the commencement date of the applicant's sentence, which has a consequential effect on the expiry date for the sentence and the date on which the applicant is first eligible for release on parole. These corrections will require the commencement date to be changed from 10 July 2013 to 10 July 2014; the expiry date for the sentence to be changed from 9 July 2019 to 9 July 2020 and the date on which the applicant is first eligible for release on parole to be changed from 9 January 2018 to 9 January 2019.