Different Sentences Justified?
207 The Crown submits that if its first argument fails (as it does), there were differences between the circumstances of the Applicant, Huang and Siu that justify the sentence that the judge imposed on the Applicant.
208 Huang was sentenced for a different offence, that has a higher maximum penalty. He provided assistance held to be "truly exceptional" and "extremely valuable". While the Applicant offered assistance, that offer proved "fruitless". Huang would remain in protective custody for the duration of his sentence, which would be burdensome to him, while there was no suggestion that the Applicant would be placed into protective custody.
209 There were also significant differences, the Crown submitted, between the Applicant and Siu. Siu was much older, a disabled pensioner, and in poor health. It was accepted that Siu's time in custody would be much harder than for a healthy young male by reason of his medical conditions. By comparison, the Applicant was aged 37 when he started offending, 43 when sentenced, and had no adverse health condition. It was Siu's personal subjective circumstances, including his age and compromised state of health, that played a large part in the adoption of a 50% ratio between his non-parole period and his head sentence.
210 Apart from these matters, it is also submitted to be relevant - indeed highly relevant - that the sentences actually imposed on Huang and Siu were each the product of successful Crown appeals. In accordance with the usual practice in this State concerning Crown appeals, because permitting the Crown to appeal at all exposes a convicted person to double jeopardy of being punished, the sentences that were imposed following the successful appeal were at or towards the low end of the permissible range for a sentence on those particular people, bearing in mind both the objective and subjective circumstances of each: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at 341 [62]; R v Holder [1983] 3 NSWLR 245 at 256, 269-70; R v Wall [2002] NSWCA 42; (2002) 71 NSWLR 692 at 707 [70] (e); R v Underwood [2005] VSCA 80 at [2]. (A different approach to sentencing on Crown appeals has now been adopted in Queensland: R v Lacey; Ex parte Attorney-General (Qld) [2009] QCA 274 at [114] ff & esp [114]-[153] per de Jersey CJ, Keane, Muir and Chesterman JJA, a decision influenced by peculiarities of the relevant Queensland legislation.)
211 In applying the parity principle it is permissible to compare the sentence of an applicant with a sentence that has been imposed on a co-offender following a Crown appeal: R v Guzman [2000] NSWCCA 261 at [20]; R v Christie [2000] NSWCCA 354 at [15]; Sharpe v The Queen [2002] NSWCCA 96 at [21]; Bowtell v The Queen [2004] NSWCCA 17 at [30]-[31]; Em v The Queen [2006] NSWCCA 336 at [131]. However, that it is possible to compare an applicant's sentence and the sentence that a co-offender has received following a Crown appeal does not answer the question of how one goes about making that comparison.
212 In Christie at [19], Fitzgerald JA (with whom Newman and James JJ agreed) said:
"An otherwise appropriate sentence imposed on an offender is reduced if that is necessary to ensure that he or she is not treated unjustly compared to a co-offender, even a co-offender to whom leniency has been extended , unless the co-offender's sentence is unsuitable as a basis for comparison because of manifest error." (emphasis added)
213 Fitzgerald JA is clearly referring to a person sentenced on a Crown appeal as being the relevant "co-offender to whom leniency has been extended", because of the leniency involved in sentencing at the bottom end of the range in Crown appeals. However, this statement says nothing about how one decides whether an applicant has been "treated unjustly compared to a co-offender". In the result, Fitzgerald JA was able to find, at [20], sufficient differences between the applicant's position and that of his co-offender (not including any difference arising from the fact that the co-offender had been sentenced on a Crown appeal) to mean that there was not a marked disparity between their sentences.
214 As I read Christie, it is not authority for the proposition that in comparing the sentence of an applicant with that of a co-offender, one must leave out of account that the co-offender's sentence was imposed on a Crown appeal in deciding whether there is a marked discrepancy between them, or whether the applicant has been treated unjustly by comparison with the co-offender.
215 Other authority has recognised that, in effecting the comparison between the two sentences, it can be a relevant difference between the situations of the applicant and the co-offender that the sentence on the co-offender was the result of a Crown appeal: R v Salameh (NSWCCA, 9 June 1994, unreported) at 3; El Hassan v The Queen [2003] NSWCCA 252 at [13]; Bowtell v The Queen [2004] NSWCCA 17 at [35]; Kauwenberghs v The Queen [2008] NSWCCA 98; (2008) 186 A Crim R 197 at [109]; Osman v The Queen [2008] NSWCCA 157 at [38].
216 In my view, the result arrived at in these cases is justifiable in principle. It is a subjective circumstance of the co-offender that he or she has, contrary to the usual principles of the criminal law, twice been put in jeopardy of being punished at the instance of the Crown. That subjective circumstance is one that has resulted in the co-offender receiving a lesser sentence than he or she otherwise might have received. That subjective factor is one not applicable to the applicant (save in the situation which could in theory arise where the respondent to a Crown appeal against sentence argues that the court should take into account parity with the sentence of a co-offender concerning whom a Crown appeal has succeeded). Just as it is possible, in deciding whether there is a disparity between the sentence of an applicant and a co-offender, to take into account that the co-offender has received a lesser sentence than he or she otherwise might have received because of a subjective factor like age or ill health, so it is possible to take into account that the co-offender has received a lesser sentence than he or she might otherwise have received because that sentence was imposed on a Crown appeal.
217 When re-sentencing Huang and Siu, this Court was quite explicit about the extent of the leniency that it granted to them by virtue of the sentencing being done on Crown appeal. For Huang, a starting point of the 11 years was adopted, notwithstanding that, had it not been a Crown appeal, the appropriate starting point was between 12 and 14 years (para [42] above). For Siu, the starting point adopted was 8 years, notwithstanding that, had it not been a Crown appeal, a more appropriate starting point would have been between 9 and 11 years (para [45] above). The extent of the leniency arising from them having been sentenced on a Crown appeal must be taken into account in the comparison between their sentences and that of the Applicant.
218 As noted earlier, this Court's reasons in the Crown appeal concerning Huang and Siu had been delivered before the Applicant was sentenced. Submissions were made to her Honour about how the objective and subjective circumstances of the Applicant compared with those of Huang and Siu. Even though those submissions were not made to her Honour for the purpose of an application of the parity principle, they are entitled to some weight unless shown in some respects to be mistaken.
219 Her Honour specifically recognised "the serious nature of this offence, and its maximum penalty." She held that:
"… although I accept … that this accused was a relatively minor player compared to Mr Chen and others in the whole scheme of things, but money laundering warrants severe punishment, not the least in order to reflect general deterrence to a very significant degree."
220 The judge referred explicitly to similarities and differences between the respective cases of the Applicant and Mr Siu, including the difference in the amount of money involved, and the number of transactions involved. She concluded:
"… I am of the view that taking into account the objective seriousness of the offence and the subjective circumstances that I have referred to, this is a case that is in the mid to lower range of seriousness. I would assess somewhat less serious than the objective and subjective circumstances in the case of Siu but not significantly so."
221 The Crown also submits that, even if there were a disparity between the sentences imposed on the Applicant on the one hand and Huang and Siu on the other, Lowe requires there to be a "marked disparity" (per Gibbs CJ at 610 (with whom Wilson J agreed), per Mason J at 611) or "[t]he difference … must be manifestly excessive and call for the intervention of an appellate court in the interests of justice" (per Dawson J at 624 (with whom Wilson J agreed)).
222 In my view it can distort the principle that is being applied if one tries to break it up into elements, as this submission presupposes one should. What Dawson and Gaudron JJ in Postiglione required, before an appellate court intervenes, is "a marked disparity which gives rise to a justifiable sense of grievance". There is a sense in which every difference between sentences, even for the same crime, is a disparity, because equal treatment has not been meted out. What the composite phrase conveys is that what matters is not only the fact of difference but also its extent and whether the difference can be explained by reference to the principles on which the criminal trial process including criminal sentencing operates. The elements of the composite phrase are coloured by each other, and if the elements are considered separately there is a risk that some of that colour will be lost.
223 I am not persuaded that there is the marked discrepancy which gives rise to a justifiable sense of grievance in the present case. The notional head sentence of the Applicant, of seven years, is well short of the 12 to 14 years that would have been appropriate for Huang if he were not being re-sentenced on a Crown appeal. That difference is not out of keeping with the greater seriousness of Huang's criminality, as shown by the different offence with which Huang was charged, the longer time over which his activities occurred, and the larger sum of money involved. The Applicant's offending had occurred over a long enough period not to be regarded as an isolated offence.
224 Nor is there the relevant sort of marked discrepancy between the Applicant's sentence and that of Siu. There were aspects of the objective circumstances that made Siu's criminality greater (the greater number and value of transactions, and his understanding that the money had an illegal source), but his subjective circumstances were more favourable to a lessening of what otherwise might be an appropriate sentence than were the subjective circumstances of the Applicant. The appropriate head sentence for Siu, absent a Crown appeal, of between 9 and 11 years, is in keeping with the undiscounted sentence of the Applicant.
PART E - THE NON-PAROLE PERIOD
225 The judge both gave her reasons, and sentenced the Applicant, on 19 September 2008.
226 When the judge had reached the stage in her remarks on sentence of having decided on a starting point for a head sentence of 7 years, and discounts totalling 50%, leading to a head sentence of 3½ years, her reasons continued:
"I note that the accused has spent seventy-eight days in gaol and I will attempt to take that into account and I will round it off and I will say now that I will round that down at two and a half months. Therefore when fixing a non-parole period, again I find no special circumstances. …
A sixty per cent non-parole period is in my view appropriate.
If counsel can just give me a little assistance in relation to the time he has already served. Different courts have different practices. Some adopt the fairly artificial but much easer to calculate approach of backdating a sentence to a time before today.
[CROWN]: They are. I think - this is almost a pragmatic approach, your Honour - but for ease and working out the reduction, it might be simpler to deduct two and a half months from the three and a half year head sentence.
HER HONOUR: And have the sentence start today.
[CROWN]: Yes.
HER HONOUR: Mr Wilkinson, do you agree--
WILKINSON: I don't wish to be heard.
HER HONOUR: You don't wish to be heard?
WILKINSON: No."
227 When actually imposing the sentence on the Applicant, the judge said:
"The term of the imprisonment that I propose to sentence you is based on a three and a half year head sentence but because you have spent in total around about two and a half months in gaol already before you were granted bail, I propose to sentence you to a period of imprisonment of thirty-nine months to commence today with a non-parole period of twenty-six months or two years and two months to commence today. That means that you will be eligible for release on parole on 18 November 2010. And you will then be on parole for an additional thirteen months which will expire on 18 December 2011.
Counsel, as I am doing this on the run, I am happy for you to look at those dates and let me know if I have made an arithmetical error, because that sometimes happens and I'd rather know now before everybody goes away.
[CROWN]: We think that's correct, your Honour. The head sentence is 39 months and will expire on 18 2011 [sic].
HER HONOUR: The non-parole period expires on 18 November 2010. And I have made fairly strictly a two-thirds, one-third because that turned out to be, in my view, the appropriate way to deal with parole. But luckily a number that was divisible by three, and that was just by chance. Mr Wilkinson, are you happy with those dates before--
WILKINSON: The dates are correct, your Honour."
228 There is an unexplained contradiction between the judge's first statement that a 60% non-parole period was in her view appropriate, and her ultimate adoption of a non-parole period based on two-thirds of the head sentence. If the judge had changed her mind between the time she gave the 60% figure and the time she gave the two-thirds figure, one would expect her to say that she had changed her mind, and why.
229 Further, in actually calculating the non-parole period the judge has used an incorrect methodology, by reducing the head sentence to take account of time already spent in gaol, and applying to the period still to run on the head sentence the percentage that the non-parole period is to bear to the head sentence.
230 Also, on the facts as the judge understood them, by giving him credit for 2½ months already spent in gaol (on the basis of her understanding that it was 78 days) she has failed to take into account 3 days that he spent in gaol (on the basis of 30 day months).
231 The way I intend to approach the matter is by first working out the extent to which, on various assumptions, an error of calculation in working through a stated principle for arriving at a non-parole period would make the non-parole period actually imposed excessive.
232 I will start by considering what the situation would be if 60% was taken as being the appropriate proportion for the non-parole period to bear to the head sentence. A 3½-year sentence is 42 months. If the judge had intended to impose a 60% non-parole period, that would be 60% of 42 months, namely 25.2 months. If the judge was to impose a sentence and non-parole period dating from the date of sentence, it would be necessary to take the whole of the amount spent in gaol off the amount of the calculated total non-parole period, to ascertain the distance in time from the date of sentencing at which the non-parole period would expire. If (as the judge assumed) the Applicant had spent 2½ months in gaol, that 2.5 months should be deducted from the 25.2 months of the non-parole period, giving 22.7 months from the date of sentence before the non-parole period expired. As the sentence actually imposed required 26 months to be served before the non-parole period expired, that would be an excess of 3.3 months.
233 If this Court were to re-sentence concerning the non-parole period, it would be necessary for it to do so on the basis of the facts now known to it, which include that he had in fact spent 71 days in gaol before being sentenced. Seventy-one days is 2.37 months, ie .13 months less than the judge had assumed. Thus, on this set of assumptions, the non-parole period would be excessive by 3.17 months.
234 If the judge had intended, as she ultimately said, to impose a non-parole period of two-thirds of the head sentence, that would be a non-parole period (two-thirds of 42 months) of 28 months. If, as the judge assumed, he had spent 2.5 months in gaol, that would require him to spend an extra 25.5 months in gaol after imposition of the sentence before the non-parole period expired. On that basis, the 26 months that the judge imposed was .5 months excessive.
235 If this Court were to re-sentence concerning the non-parole period, and take into account that he had in fact spent 71 days in gaol, or 2.37 months, the non-parole period actually imposed by the judge would be excessive by .37 months.
236 It is impossible for me to tell whether her Honour intended the non-parole period to be 60%, or two-thirds, of the head sentence. In that circumstance it seems to me that the appeal should be approached on the assumption that the error in calculation that her Honour has made is the largest of the various possible figures.
237 Notwithstanding that the provision of the law that the Applicant contravened was a provision of a federal statute, his appeal is brought under the Criminal Appeal Act 1912 (NSW). Section 6(3) of that Act provides:
"On an appeal under section 5(1) against a sentence, the court, if it is of opinion that some other sentence, whether more or less severe is warranted in law and should have been passed, shall quash the sentence and pass such other sentence in substitution therefor, and in any other case shall dismiss the appeal."
238 Even though error on the part of the trial judge is a precondition of this Court altering a sentence on appeal, a finding that the judge was in error in some respect relevant to the imposition of the sentence is not sufficient to result in this Court imposing a different sentence: R v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704; R v Johnson [2005] NSWCCA 186. This Court must find that some other sentence was appropriate before it alters the sentence in a way that corrects the error.
239 I will start my own consideration of whether the non-parole period is an inappropriate one by calculating the percentage it bears, if the arithmetic is correctly carried out, to the head sentence.
240 The head sentence imposed was 39 months from the date of sentencing. If one adds the 71 days actually spent in gaol before trial, or 2.37 months, that gives a total head sentence of 41.37 months.
241 The actual non-parole period imposed is 26 months from the date of trial, or (adding on the 71 days already spent in gaol) 28.37 months. Thus, the non-parole period actually imposed is 68.58% of the head sentence actually imposed. This is only very marginally outside the usual range (60-66.67%) within which non-parole periods are imposed. In considering the significance of the marginal extent to which the usual range is exceeded, I bear in mind that this court usually does not engage in minor tinkering with sentences. Quite apart from that, in my view the period of the non-parole period is not excessive. Any consideration of the significance of the 1.91% by which the ratio of non-parole period to head sentence is outside the usual range must be carried out bearing in mind the order of accuracy of other figures that went into the calculation of the sentence. The figures for the seven years prima facie head sentence, and for discounts that the judge adopted are very broad brush ones. Further, insofar as a discount for assistance was given it was generous. Further, to the extent to which the judge, in fixing a head sentence, took into account the sentences that had been imposed on Huang and Siu, she did so by reference to the sentences that this Court actually ordered them to serve, not (as explained above is more correct in principle) after taking into account the subjective circumstance that each of Huang and Siu had been under, that they had been sentenced on a Crown appeal.
242 In all these circumstances, even bearing in mind the maximum extent that arithmetical error on the part of the judge in fixing the non-parole period might have caused the judge to extend the non-parole period by, I am not persuaded that in all the circumstances a different sentence should have been passed, so far as the non-parole period goes.