Jaturawong v Regina

Court of Criminal Appeal (NSW)|2011-07-08|Before: Beazley JA, Hall J, Harrison J

Judgment 1BEAZLEY JA : On 14 May 2010, the applicant pleaded guilty to and was sentenced in respect of 7 counts of being an accessory before the fact to the offence of Misconduct in Public Office, committed by Paul Francis McPherson. 2The principal offender, Mr McPherson, was sentenced at the same time in respect of one offence of corruptly receiving a reward contrary to the provisions of the Crimes Act 1900, s 249B (count 1) and for one offence of Misconduct in Public Office (count 2). 3Pursuant to the Criminal Procedure Act 1986, s 166, Mr McPherson was also dealt with in respect of two further offences contained in a Form 1 attached to count 1, the s 249B offence. Those offences were a further specific offence pursuant to s 249B(1)(a)(i) for corruptly issuing a licence in exchange for a small amount of cannabis and a further charge of false evidence given to the Independent Commission Against Corruption (ICAC), contrary to the Independent Commission Against Corruption Act 1988, s 80(c). 4The offences under the Crimes Act , s 249B carried a maximum penalty of 7 years imprisonment. The offence of giving false evidence to ICAC relevantly carried a maximum penalty of 12 months imprisonment. 5The offence of Misconduct in Public Office is a common law offence in respect of which the penalty is at large. As the offence to which the applicant was an accessory was a common law offence, the penalty for the accessory offence is also at large. However, when sentencing for a common law offence, the court has regard to any corresponding statutory offence as a reference point for the imposition of any penalty: see R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280 at 291. 6In this case, the Crimes Act , Pt 4A provides for offences of corruptly receiving commissions and other corrupt practices in respect of which the maximum sentence is 7 years imprisonment. Mr McPherson's misconduct was in corruptly receiving payments whilst acting as the Manager of the Botany Registry of the RTA. Both the applicant and the Crown accepted that a maximum penalty of 7 years imprisonment was the relevant reference point in this case and that that was the reference point most likely to have been taken by Berman DCJ. 7Pursuant to the Crimes Act , Pt 9, s 346, an accessory before the fact is liable to the same punishment as the principal offender. Accordingly, a maximum penalty of 7 years imprisonment is also the relevant reference point for the offences committed by the applicant and again, it was assumed by the applicant and the Crown that his Honour sentenced the applicant by reference to a maximum penalty of 7 years. 8His Honour imposed upon the applicant a total aggregate sentence of 2 years 10 months imprisonment to date from 14 May 2010 and to expire on 13 March 2013, with a total aggregate non-parole period of 1 year 8 months to date from 14 May 2010 and to expire on 13 January 2012. His Honour allowed a 20 per cent discount for the applicant's plea of guilty to each count. 9Mr McPherson was sentenced to a total effective sentence of 3 years comprising an effective non-parole period of 2 years to date from 14 May 2010 to 13 May 2012 with a balance of 12 months to date from 14 May 2012 to 13 May 2013. His Honour allowed a 25 per cent discount for the plea of guilty. 10For reasons which I explain below, it is relevant in the case of Mr McPherson to understand the sentences that his Honour imposed for each offence on the indictment. On count 1 on the indictment (that is, the s 249B offence), taking into account the offences on the Form 1, his Honour imposed a fixed term of 12 months imprisonment to date from 14 November 2010 (that is, the date of sentence). 11On count 2 on the indictment (that is, the Misconduct in Public Office offence) his Honour sentenced Mr McPherson to imprisonment for a non-parole period of 18 months to date from 14 November 2010 with an additional term of 12 months (giving a head sentence for this offence of 2 years 6 months). 12Accordingly, Mr McPherson was sentenced to a total aggregate sentence in respect of which the additional term was 2 months longer than that which was imposed on the applicant, and received a non-parole period which was 4 months longer than that to which the applicant was sentenced. 13Although Mr McPherson received a longer sentence overall, the applicant received a longer aggregate sentence for the accessorial offence than Mr McPherson received for the principal offence of Misconduct in Public Office. The applicant was sentenced to a non-parole period of 20 months as compared to a non-parole period of 18 months in the case of Mr McPherson. The applicant was sentenced to a balance of term of 14 months compared to a balance of term of 12 months in the case of Mr McPherson.

Background facts to the offending conduct 14Mr McPherson was the Registry Services Manager of the Botany Motor Registry. The position of Registry Services Manager was the most senior position at the Registry, with duties involving the proper management of the Registry, which included probity obligations, the overview of procedural regularity in the conduct of licensing matters, adherence to the RTA's policies and procedures, and staff supervision, including the checking of licence applications. 15Mr McPherson had authority to undertake testing of applicants for driver licences and the issue of licences to those who passed their test, although this was not a routine part of his responsibilities. Mr McPherson in fact engaged in those activities from time to time. He also, from time to time, administered and assessed applicants for driver licences who sat the Driver Knowledge Test, issued driver licences, including licence upgrades; allocated examiners to practical driver testing and allocated test routes to be taken by applicants for the practical part of the licence test. 16The applicant was a driving instructor and advertised his business in a Thai language newspaper. 17Some time in about 2004, the applicant made the acquaintance of an alleged co-offender, Victor Phomsavanh (Victor), who ran a Thai restaurant in Mascot. Mr McPherson was a regular patron at the restaurant. The applicant, Mr McPherson and Victor became involved in a scheme whereby for payment made to him by Victor, Mr McPherson improperly assisted applicants to obtain learner permits or driver licences. He did so in a variety of ways, including by assisting applicants answering questions on the Driver Knowledge Test, indicating in advance the route an examiner would take them on when undertaking a driving test, or in some cases, falsely creating computer entries indicating that a practical driving test was not required. 18The common law Misconduct in Public Office offence to which Mr McPherson pleaded guilty occurred over the period 31 October 2004 to 29 August 2006. Mr McPherson was charged with a common law offence, rather than a series of specific offences under s 249B, because he was paid sums of money over this period on a regular basis by Victor, rather than being paid in respect of each individual applicant whom he assisted. In the agreed facts upon which the sentence hearing proceeded, particulars were given of seven persons who were assisted by Mr McPherson, who were clients of the applicant. In addition, particulars were given of another four persons whom Mr McPherson assisted and there was a statement from him that all up he improperly assisted something in the order of 50 people. There was no independent evidence of the amount Mr McPherson received, however, Mr McPherson said he received $3,000 to $4,000 for his involvement in the scheme, as well as the cannabis, which was the subject of the separate s 249B charge. 19The applicant was charged with individual accessorial offences because he received a specific amount of money from each assisted person. The evidence indicated that the persons whom the applicant assisted and who were the subject of the particular charges paid amounts of money directly to the applicant in the range of $800 to $1,500. His Honour did not make a finding as to the amount that was retained by the applicant, although there was evidence that the applicant paid a portion of this amount to Victor, who in turn paid Mr McPherson. It was not suggested in the agreed facts that the applicant was involved with the other four persons named as having been assisted by Mr McPherson. Nor was the applicant said to have been involved with any other offending. In other words, the charges to which the applicant pleaded guilty were not said to be representative charges. 20The sentencing judge described the offences committed by both Mr McPherson and the applicant as: "... very serious indeed. They involved corruption of a public officer, which strikes at the heart of the administration of good Government ..." 21His Honour noted that as a result of the corrupt conduct of both, persons were assisted to obtain licences when they were not otherwise entitled to them and thus constituted a danger to legitimate road users. His Honour reiterated, however, that it was the corrupt nature of the dealings between the applicant and Mr McPherson which was of most concern.

The personal circumstances of the applicant 22The applicant was born in Thailand and first visited Australia when he was 27 years of age. He subsequently immigrated to Australia in 1993. He came from a relatively poor family, but his upbringing was otherwise normal. He was relatively well-educated. At the time of the commission of the offences, the applicant had been a driving instructor for about 10 years, having obtained the necessary qualifications for this occupation by undertaking a 6 month TAFE course. In addition to practical training in that course, there was instruction about the importance of avoiding corruption. 23At the time of the offending, the applicant was married and he and his wife had one young child. The applicant and his wife had separated by the time he came to be sentenced, it would seem because of the applicant's offending conduct. At the time of his sentencing, the applicant was living alone in a boarding house and was undertaking a course of study. He suffers from sleep apnoea and his sleep had been particularly disturbed as a result of the stress of the proceedings. 24The applicant proffered, by way of explanation for his offending conduct, that he wished to help members of his fellow Thai community. His concern arose because the Driver Knowledge Test, that was a compulsory part of obtaining a licence, was not in the Thai language. His Honour found this explanation unsatisfactory, first, because the applicant received large sums of money for his " assistance " to his clients in obtaining their licences and secondly, although the RTA tests are conducted in English, a person undertaking such tests is entitled to have the assistance of an interpreter. His Honour considered therefore, that the essential motivation for the conduct was money. 25The applicant also sought to excuse his conduct on the basis that bribery was more culturally acceptable in Thailand than in Australia. His Honour was also unimpressed with this excuse. His Honour noted that since the applicant's involvement in the offending conduct had become known, he had become estranged from the Thai community, thus inferring, as I understand his Honour's reasons, that the Thai community did not accept that bribery was acceptable. In any event, his Honour observed that the applicant had learnt in his TAFE course that such conduct was against the law and that he could go to gaol if he engaged in such practices. His Honour further noted that the applicant had told one of his clients to keep quiet about what had happened, because Australians would not accept that type of conduct. His Honour considered that that behaviour exhibited an awareness of the wrongness of his conduct. 26In his favour, his Honour took into account that the applicant had assisted ICAC with its enquiries into the matter. His Honour considered that the applicant was unlikely to re-offend, that he had good prospects of rehabilitation and had expressed appropriate remorse. It was also relevant, in the applicant's favour, that there was a delay in these charges being laid against the applicant following the ICAC hearing. 27His Honour considered that this was a matter where general deterrence was of significant importance. It was for that reason that his Honour considered a full-time custodial sentence was appropriate. His Honour found special circumstances, in that it was the first time that the applicant would be in custody, but rejected that the applicant had been subjected to extra-curial punishment. 28His Honour made relevantly similar findings in respect of Mr McPherson, although Mr McPherson's personal circumstances were, obviously, peculiar to him and therefore different from those of the applicant. In particular, his Honour noted that Mr McPherson had lost his job with the RTA, which was a senior position in which he earned $95,000 per year. In addition, he had five children, two from a former marriage and three from his current marriage. The children are young, particularly the three daughters who reside with Mr McPherson and his wife. Mr McPherson's wife has the care of her seriously ill mother. His Honour recognised that there would be a significant impact upon the family's finances, should Mr McPherson go to gaol. However, as his Honour remarked, such consequences are unexceptional: it is the common consequence where a breadwinner in a family commits an offence for which a custodial sentence is appropriate. 29In addition to finding that Mr McPherson was of a prior good character, his Honour considered that there was much about his personal life about which he was entitled to be proud. Mr McPherson was involved in playing football and in training junior teams, as well as being involved in surf lifesaving. There was substantial evidence of his otherwise good character before the trial judge. His Honour again considered that in the case of Mr McPherson, money was the motivating cause for the offending conduct.

Issue on the appeal 30The sole issue on the appeal is whether the sentence imposed upon the applicant's co-offender gave rise to a justifiable sense of grievance on the part of the applicant. The applicant submitted that the sentence imposed on him was disproportionate to that imposed on Mr McPherson, having regard to the objective criminality involved in Mr McPherson's offending which gave rise to the Misconduct in Public Office offence and his own offending as an accessory in respect of seven instances of Mr McPherson's misconduct. The Crown understood the issues raised involved a question of parity of sentence. It also appears that his Honour was concerned with that question, as he raised it in the course of the sentencing hearing. In this regard, the Crown submitted that the sentencing process that his Honour was engaged with presented some difficulties, having regard to the fact that Mr McPherson was to be sentenced for an additional offence in respect of which the matters on the Form 1 were to be taken into account. 31The principles governing parity of sentencing between co-offenders are well established. There will be error in the sentencing process if there is such a discrepancy in the sentences imposed so as to engender in a co-offender a justifiable sense of grievance and an appearance of injustice: see Lowe v R [1984] HCA 46; (1984) 154 CLR 606 per Mason J at 613; per Dawson J at 623. In determining that question, it is both relevant and necessary to have regard to the gravity of the conduct of each offender, their respective circumstances, including their antecedents and any relevant mitigating circumstances: see Lowe per Brennan J at 617. The significance of this principle in sentencing has been identified as being of " abiding importance to the administration of justice and to the community ": see Regina v Wei Pan [2005] NSWCCA 114 at [34]. 32The test for determining whether a person would have a justifiable sense of grievance is an objective one: see R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported); Regina v Ilbay [2000] NSWCCA 251 at [6]; Nguyen v R [2008] NSWCCA 308 at [37]. However, even where there is a disparity in the sentences imposed which satisfies this test, an appellate court will not intervene where to do so would result in a sentence being imposed upon the applicant which is itself so disproportionate to a proper sentencing outcome, having regard to the objective and subjective criminality involved in the applicant's offending conduct. In this regard, the court must obey the statutory mandate in the Criminal Appeal Act 1912, s 6(3), namely, that appellate intervention is confined to those cases where the court is of the opinion that some other sentence is warranted in law: see the Criminal Appeal Act , s 69(3); R v Boney [2001] NSWCCA 432 at [16]; R v Pan [2005] NSWCCA 114. 33This statutory injunction underpins the notion of proportionality which requires that a person is to be sentenced with a minimal level of punishment, so that the sentence imposed should bear reasonable proportionality to the objective seriousness of the crime for which the sentence is imposed. As Brennan J said in Lowe : "... it is wrong to think that that it is 'more important that sentences should be proportionate to one another than that they should be proportionate to guilt'. R v Robson and East (1970) Crim LR 354, at p 355 ..." See also in this Court: R v Scott [2005] NSWCCA 152; R v McNaughton [2006] NSWCCA 242. 34There are two circumstances where the question whether there has been such disparity in the sentences imposed on co-offenders raises particular difficulties. One is where the offenders are sentenced by different judges: see Lowe at 617 and 622. That was not the case here. The applicant and Mr McPherson were sentenced by the same judge at the same time. There are judicial comments to the effect that where co-offenders are sentenced by the same judge at the same time and detailed reasons given for the sentences imposed, an appellate court will be cautious in intervening on the ground of disparity. Presumably, the reason for these remarks is that in such cases, it is unlikely that the sentencing judge will not be alive to the principles of parity involved in sentencing co-offenders. 35The other area of difficulty is where the co-offenders are charged with different offences. That is the case here, as it had to be. The offences which each committed were different. That raises the question whether it is the principle of parity which is relevant in this case. 36The question is not easily resolved and for reasons which I explain in the immediately following paragraph, it is not necessary to finally determine the matter. For my part, I am inclined to consider that the parity principle is relevant, notwithstanding that the applicant and Mr McPherson were guilty of different offences and Mr McPherson's offending was greater in terms of the time over which the offending conduct occurred and the number of instances persons were corruptly assisted to obtain driver licences. Nonetheless, there was a direct correspondence between the accessorial conduct of the applicant and the Misconduct in Public Office conduct of Mr McPherson in respect of the 7 persons who were assisted both by the applicant and Mr McPherson. The Crown also approached the matter on the basis that the parity principle applied. 37As it turns out, it is not necessary to determine whether the principle of parity in its strict sense does apply because, during the hearing of the appeal, the Crown accepted that the gravity of Mr McPherson's offending conduct was greater than that of the applicant. The Crown also conceded that this was a case where, viewed objectively, the applicant would have a justifiable sense of grievance having regard to the sentence imposed on him as compared to the sentence imposed upon Mr McPherson. The Crown's concession in this regard involved its acceptance that Mr McPherson's offending conduct involved not only the seven matters to which the applicant was an accessory, but four other distinct instances of offending, together with other offending conduct, which in total, had involved Mr McPherson corruptly assisting about 50 persons. In this regard, not only was Mr McPherson's offending more extensive, but it occurred over a longer period of time. In making the concession, the Crown also accepted that his Honour had sentenced Mr McPherson for the totality of his conduct to which I have referred. 38In my opinion, the concession was rightly made. His Honour said: "Although Mr McPherson received he says, and there is nothing to contradict it, a relatively small amount of money, three thousand to four thousand dollars plus the cannabis of course, he freely admits that he assisted a large number of people, around fifty in a corrupt way. That really is the gravamen of his misconduct. The money may have been relatively small but there were a very large number of separate criminal corrupt acts committed by the offender." 39Mr McPherson was sentenced to 2 years 6 months with a non-parole period of 18 months for the Misconduct in Public Office offence, involving something in the order of 50 separate occasions of receiving bribes. The applicant was sentenced to a total effective sentence of 2 years 10 months with a non-parole period of 20 months for the seven occasions on which he was an accessory to Mr McPherson's Misconduct in Public Office offence. That bald comparison needs to be modified by two considerations. The first is by having regard to the sentence that would have been imposed but for the discount. In Mr McPherson's case, considering the total effective sentence imposed for both counts on the indictment the starting point was 4 years, that is, reduced to 3 years by the 25 per cent discount. In the applicant's case, the starting point was 3 years 6.5 months, reduced to a total effective sentence of 2 years 10 months by the 20 per cent discount. 40Further, notwithstanding the greater criminality involved in the misconduct offence, Mr McPherson's criminality for which he was sentenced on Count 1, together with his criminality in respect of the offences contained on the Form 1 is not to be overlooked: see In Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146 , especially at [42] where Spigelman CJ observed that in dealing with offences listed on a Form 1, the court is to take into account the matters on the Form 1 " with a view to increasing the penalty that would otherwise be appropriate for the particular offence ". 41In this case, the applicant was not charged with any other offences other than the seven that were charged on indictment, nor did he admit guilt in respect of any other matters. In particular, he did not provide false information to ICAC, as did Mr McPherson. Nonetheless, he has been given a total effective sentence which is only 2 months less than that of Mr McPherson and a non-parole period which is 4 months less, and, as I have said, he received a more severe total sentence on the accessory offences as compared to the sentence imposed upon Mr McPherson as the principal offender. 42The Crown initially submitted that Mr McPherson's objective circumstances were far more favourable than the applicant's. That submission may not have been maintained, given the Crown's concession to which I have referred. In any event, I do not consider the submission to have been made good. His Honour did not say so and for myself, I do not see any substantial difference. Both were family men; both have lost their jobs; both had a connection with their respective communities; both have attempted to rehabilitate themselves. The imposition of a gaol term would involve hardship to the families of both, because of the loss of income that both the applicant and Mr McPherson had previously contributed to their respective families. The significant difference in this regard between the two, which, at a subjective level, may well be more serious for the applicant, was that his marriage had come to an end. However, Mr McPherson's family life has remained intact, notwithstanding that his family was undoubtedly experiencing real hardship, engendered by the loss of his substantial earnings as Manager of an RTA Registry and the loss of his support within the home, given the difficult circumstances in which his wife finds herself, looking after the children of the marriage as well as her invalid mother. 43In my opinion, and as conceded by the Crown, his Honour erred in imposing a disproportionately severe sentence on the applicant as compared to Mr McPherson. That does not of itself mean that the Court should intervene. The Court must be satisfied that some other sentence is warranted in law: the Criminal Appeal Act , s 6(3). In my opinion it is. There is nothing in the objective circumstances of the case or in the subjective circumstances of the applicant that warrant him serving a sentence which was more severe than that imposed on Mr McPherson. His accessorial conduct was significantly less, both in the period of time over which and the number of occasions on which the conduct occurred, than the offending conduct of Mr McPherson. 44Although the sentences imposed upon Mr McPherson were lenient, they were not outside an available discretionary range, particularly having regard to his prior good character. Notwithstanding the lenient sentence imposed on Mr McPherson, appellate intervention in the sentence imposed upon the applicant is warranted in this case. Accordingly, the sentence imposed by Berman DCJ should be quashed and the applicant re-sentenced. 45In determining the sentence which should be imposed on the applicant, I have applied the same discount for the plea as did the sentencing judge. I have also had regard to the affidavit evidence he has filed which establishes that he has been of good conduct whilst in prison and is taking steps to rehabilitate himself by undertaking courses of study. 46In my opinion, this is a case where it is appropriate to set an aggregate sentence of imprisonment pursuant to the Crimes (Sentencing Procedure) Act 1999, s 53A(1). Although the offences were separate and occurred at different times, the offending involved conduct of the same type on each occasion and was part of a course of conduct by the applicant. 47Accordingly, I propose that the applicant be sentenced to a non-parole period of 16 months commencing on 14 May 2010 and to expire on 13 September 2011 together with an additional term of 11 months to expire on 13 August 2012. 48Pursuant to the Crimes (Sentencing Procedure) Act , s 53A(2), the individual sentences that I would have imposed in respect of the individual offences are as follows: Count 1: a fixed term of 10 months to date from 14 May 2010 to 13 March 2011; Count 2: a fixed term of 10 months to date from 14 June 2010 to 13 April 2011; Count 3: a fixed term of 10 months to date from 14 September 2010 to 13 July 2011; Count 4: a fixed term of 9 months to date from 14 November 2010 to 13 August 2011; Count 5: a non-parole period of 5 months to date from 14 April 2011 to 13 September 2011 with a balance of term of 12 months to expire on 13 September 2012; Count 6: a non-parole period of 5 months to date from 14 April 2011 to 13 September 2011 with a balance of term of 12 months to expire on 13 September 2012; Count 7: a non-parole period of 5 months to date from 14 April 2011 to 13 September 2011 with a balance of term of 12 months to expire on 13 September 2012. 49I propose the following orders:

Grant leave to appeal against sentence;
Appeal allowed;
Sentences imposed by Berman DCJ on 14 May 2011 quashed;
Pursuant to the Crime (Sentencing Procedure Act) 1999, s 53A(1) the applicant is sentenced to a non-parole period of 16 months commencing on 14 May 2010 to expire on 13 September 2011 together with an additional term of 11 months to expire on 13 August 2012. 50HALL J : I agree with Beazley JA. 51HARRISON J : I agree with Beazley JA.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 21 September 2011

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