JOD v REGINA

JOD v REGINA - [2009] NSWCCA 205 - NSWCCA 2009 case summary — Zoe

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(3) In respect of the State offences committed during 2005:- • For the offences contrary to s.178BA of the Crimes Act (counts 25 to 35 and 69-71 and 73), the applicant was sentenced to a fixed term of imprisonment of one year and six months to commence on 30 October 2006 and to expire on 29 April 2008. • For the offences contrary to s.300(2) of the Crimes Act (counts 43 and 72), the applicant was sentenced to a non-parole period of one year and six months to commence on 30 October 2006 and to expire on 29 April 2008 with a balance of term of one year and six months to expire on 29 October 2009. (4) In respect of the Commonwealth offences committed during 2006:- • For the offences contrary to s.24(1) of the Financial Transactions Reports Act (counts 15 and 17), the applicant was sentenced to a term of imprisonment of nine months to commence on 30 April 2007 to expire on 29 January 2008. • For the offences contrary to s.480.4 of the Criminal Code (counts 18 and 19), the applicant was sentenced to term of imprisonment of one year and six months to commence on 30 April 2007 and to expire on 29 October 2008. • For the offence contrary to s.145.1(5) of the Criminal Code (count 20), the applicant was sentenced to a term of imprisonment of three years to commence on 30 April 2007. (5) In respect of the State offences committed during 2006:- • For the offences contrary to s.178BA or s.178BB of the Crimes Act (counts 45, 47, 51, 64 and 68), the applicant was sentenced to a non-parole period of 12 months to commence on 30 April 2007 and to expire on 29 April 2008 with a balance of term of six months to expire on 29 October 2008. • For the offences contrary to s.300(2) of the Crimes Act (counts 44, 46, 48, 49, 50, 63, 65 and 66), the applicant was sentenced to a non-parole period of 12 months to commence on 30 April 2007 and to expire on 29 April 2008 with a balance of term of two years to expire on 29 April 2010. • For the offence contrary to s.300(2) of the Crimes Act (count 67), and taking into account the offences included on the Form 1, the applicant was sentenced to a non-parole period of 12 months to commence on 30 April 2007 and to expire on 29 April 2008 with a balance of term of four years to expire on 29 April 2012. 13 In respect of all of the sentences for Commonwealth offences, there was specified a single non-parole period in accordance with s.19AB of the Crimes Act 1914 (Cth) of two years commencing 30 April 2006 and expiring on 29 April 2008. 14 The applicant relied upon two grounds of appeal in the following terms:- "(1) The applicant submits that the effective sentence imposed on him, when compared with the sentences imposed on Darren Cranshaw, demonstrates a lack of parity in sentence that creates a 'justifiable sense of grievance'. Lowe v The Queen (1984) 154 CLR 606. (2) The sentence imposed upon the applicant when compared with that upon Jonathan Marven demonstrates a lack of parity in sentence that creates a justifiable sense of grievance." Factual matters 15 The offences were committed between 20 February 2004 and 20 April 2006, a period of two years and two months. At the beginning of that period, the applicant was 20 years of age. 16 The applicant was a member of an organised crime syndicate which used false identities in order to perpetrate fraud upon various financial institutions. The enterprise consisted of individual syndicates, each specialising in a particular type of identity fraud and directed by a member of the enterprise. 17 Each syndicate had what may be termed a "syndicate head", a person in charge of organising the staff, counterfeit identities, drivers and offences, and a number of "runners", persons who received a percentage of the funds they fraudulently obtained. 18 By way of telephone intercepts and physical surveillance, the applicant was detected in frequent conversations with Oliver Yu, the leader of one of the crime syndicates. The sentencing judge found that he worked "predominantly for Oliver Yu and occupied a position of trust within his organisation, running field operations on his behalf" (Remarks on Sentence, p. 39). Oliver Yu gave instructions to the applicant and provided the means by which to perpetrate the frauds. 19 The applicant's offending involved him attending financial institutions on numerous occasions and presenting false documents in order to open bank accounts in false names, to withdraw money from existing genuine bank accounts or to make fraudulent claims in relation to credit cards or loans.

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27 In respect of the subjective features pertaining to the applicant's case, the sentencing judge accepted the applicant had a long history of drug abuse and of a gambling addiction. The drugs to which the applicant was addicted included heroin, ecstasy and crystal methamphetamine. The applicant gave evidence that he spent the money he obtained for committing the offences on drugs, gambling and general living expenses. The pre-sentence report expressed the view that the applicant spent between $6,000 and $7,000 each day on gambling. 28 The sentencing judge accepted that the applicant had good prospects for rehabilitation and had shown remorse. Reference was made to his personal circumstances with regard to certain childhood traumas, family relationships, drug use and gambling addiction. His Honour had regard to his participation in programmes whilst in custody to address his drug use and gambling, as well as the opinion expressed in the pre-sentence and psychologist's reports that he still had unresolved substance abuse issues. 29 The applicant's plea of guilty and his assistance given to law enforcement were also taken into account. The sentencing judge said the following at p.37 of the remarks on sentence:- " I propose to allow a discount of thirty-five per cent to reflect the utility of the pleas and his contrition demonstrated in his ready confession, and his pleas of guilty. His contrition is also demonstrated by the assistance that he provided to authorities, to which I will refer in due course confirming the intelligence already held by law enforcement and assessed overall as of medium value. [JOD] will be allowed a discount of fifteen percent for the assistance he provided to the authorities ." 30 A finding of special circumstances was made on the basis that the applicant required an extended period of supervision. The finding was based upon the fact that the time in custody for the offences in question was the first instance of incarceration for the applicant and was considered appropriate in order to facilitate his rehabilitation.

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• One offence of contrary to s.145.2 of the Criminal Code (possession of a forged document). 39 In the course of his remarks on sentence in relation to Marven, his Honour, Blackmore DCJ, observed in relation to the objective criminality of the offences that (at p.2):- " The offences the offender is responsible for are offences of a highly organised and complex nature. The offences involve corrupt bank officers, unlawful dealings in personal information, the assumption of identities of real people, and the use of machinery capable of producing high quality identity documents ." 40 The total exposure of all the offences committed by Marven to the financial institutions was $776, 385. Of this amount, $404,000 was not recovered. 41 In regard to Marven's role in the syndicate, his Honour found that he was a "syndicate co-ordinator" (at p.4) and that his overall offending was of "a very high order" (at p.9). His Honour further observed at page 4 that:- " He organises the runners, provides them with fake cheques, counterfeit identity documents, and conveys them to financial institutions in New South Wales and Victoria to commit fraud offences ." 42 McKeown, Mrillo, Cranshaw and the applicant were classed by his Honour as "all simply runners who dealt with the syndicate coordinator, Jonathan Marven…" (at p.3). The syndicate had employed the runners on a commission basis. His Honour stated that essentially, a runner would enter a financial institution in possession of a false driver's licence and, after confirming the account was unobstructed, withdraw cash from an account. 43 In relation to Marven's role in the syndicate as it concerned related offenders, including the applicant, his Honour made the following finding (at p.9):- " In this case, I find that the offender's role was more significant than that of Mr Cranshaw, whom I previously sentenced to three years and ten months imprisonment, after also applying a forty-five percent discount. In my view, the offender's role can be equated to that of the man [JOD]. He was also a trusted person, acting as a runner and an assistant to one of the identified principals in the syndicate. It must be said that their roles were not identical, but, in terms of importance to the syndicate, they would appear to be on a similar level …" (emphasis added) Submissions 44 Ms A Francis of counsel for the applicant contended that there was a lack of parity between the sentences imposed on her client and those imposed upon Darren Cranshaw and Jonathan Marven. 45 Ms Francis submitted that the head sentence imposed upon the applicant, which is two years and two months greater than that of the offender Cranshaw, gives rise to a justifiable sense of grievance. No complaint was made in relation to the non-parole period. 46 Ms Francis raised a number of factors concerning the relative criminality of the applicant and Cranshaw which it was contended necessitated a lesser differentiation in the head sentences imposed. These were said to include the following matters:-

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(3) The fact that the applicant was much younger than Cranshaw when he committed the offences - he was 20 years of age at the time of the offences. 47 Reliance was placed on the parity principle as stated in Lowe v The Queen (1987) 154 CLR 606 at 613 and Postiglione v The Queen (1997) 189 CLR 295 at 301. 48 A question arose at the hearing of this appeal as to whether parity arguments extend to offenders involved in a syndicate but who are not in fact co-offenders in the sense that they are not charged with involvement in the same incident or breaches of a criminal statute. 49 The applicant was not sentenced in relation to the same transactions as Cranshaw or Marven. Although the offenders Marven, Cranshaw and the applicant share a number of offences in common, such offences arose out of different factual circumstances. However, that said, the offences committed by the applicant and Cranshaw bear the greatest similarity, including offences contrary to s.178BA and s.300(2) of the Crimes Act. 50 Ms Francis relied upon the decision of this Court in Shane Bradley Mitchell v Regina [2008] NSWCCA 192 as support for the contention that the parity principle can apply to offenders notwithstanding that they are charged with different offences. 51 The Crown submitted that strict parity considerations as stated in Lowe (supra) do not apply to offenders who have committed similar offences but who are not participants in the same crime or crimes. Although the Crown accepted that there was some commonality in the offences for which the applicant, Cranshaw and Marven were sentenced, those offences did not arise from the same factual circumstances. 52 Reference was made to the decisions in Wurramarbra v Regina (1979) 28 ALR 176; Regina v Watson (NSWCCA, 25 February 1992, unreported); Regina v Formosa [2005] NSWCCA 363; Spinks v Regina [2007] NSWCCA 52; Yin v Regina [2007] NSWCCA 350; Pham v Regina [2009] NSWCCA 25; Kardoulias v Regina [2005] 159 A Crim R 252. 53 Ms Francis submitted that there were a number of similarities between the applicant's case and Cranshaw's case which attracted the application of parity principles. These were said to include:-

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64 The test for determining the existence of a sense of grievance is objective. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the offender's grievance as justified: Regina v Ilbay [2000] NSWCCA 251 Grove J (at [6]). 65 Lowe (supra) involved co-offenders charged with the same offence, the crime of robbery while armed with an offensive weapon. Where offenders have been charged with different offences, this Court has been reluctant to apply strict principles of parity. 66 Counsel on behalf of the applicant pointed to the decision of this Court in Regina v Kerr [2003] NSWCCA 234, as suggesting that parity can apply notwithstanding that two offenders are charged with completely different offences. In that case, the applicant was sentenced for aggravated robbery and his co-offenders were charged with simple robbery and concealing a serious offence respectively. 67 Miles JA, with whom the other members of the Court concurred, stated:- "19 … It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest … 20 In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer ." 68 In Pham (supra), Latham J summarised the way in which this Court has dealt with these comments made in Kerr (supra):- " 33 This statement of principle was considered by this Court in R v Formosa [2005] NSWCCA 363. There the applicant was charged with malicious infliction of grievous bodily harm in company. The co-offender, Wood, was dealt with as an accessory after the fact to the applicant's offence. In dismissing the appeal, Simpson J stated:- '40 The decision in Kerr is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied. 41 The effect of the submissions made on behalf of the applicant (and the decision in Kerr is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process. 42 In Kerr , there were marked parallels with the present case. The facts suggested that both the applicant and Oliver had been actively involved in the actual assault, and, so far as the facts are recited in the judgment, to a comparable degree. Yet Kerr was charged with a significantly more serious offence than was Oliver. Quite apart from any other differences, which were recognised in the passage quoted in Postiglione as justifying different sentences, that alone imposed demands upon each sentencing judge that were different. 43 In the present case the divergence was even greater. While Colin Wood does not appear actively to have participated in the assault, he was undoubtedly present for the purpose of supporting the applicant. That he was charged only with an accessorial offence is mysterious and unexplained. 44 I do not understand either Lowe or Postiglione to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle.' 34 The statement of caution made by Simpson J above was repeated in Spinks v R [2007] NSWCCA 52 where a complaint of disparity was rejected in circumstances where one offender had been charged with less offences than the co-offender. The statement was also endorsed in Yin v R [2007] NSWCCA 350 at [23]-[24], in Kauwenberghs v R [2008] NSWCCA 98 at [109] and referred to in McGuiness v R [2008] NSWCCA 80. In the latter case there was no disparity arising where one offender had been dealt with summarily and the other on indictment. In Yin , Barr J stated at [24]:-

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70 The applicant also relied upon the decision in Mitchell (supra). There, the applicant and another related offender, Parker, purchased illegal drugs individually but with the purpose of attending the same party in Queensland to distribute the drugs. The two men were not co-offenders in the Lowe sense, however, Blanch J said at [10]:- " Although not a case of discrepancy in sentencing of co-offenders, this is a case of markedly different sentences imposed on two men who were living in the same house, who were each engaged in the same activity for the same purpose on the same day ." 71 Blanch J identified a number of measures directed toward achieving consistency in sentencing, including the use of sentencing statistics, guideline judgments and the practice of quoting like cases (at [12]). His Honour found that in order to ensure a sense of consistency in sentencing, the respective sentences ought to be examined. A comparison of the offences committed by each offender indicated to his Honour that there should be no significant difference in the sentence imposed. 72 Harrison J considered this issue in Gao v Regina [2008] NSWCCA 234, finding that strict parity principles do not apply in such cases. His Honour stated at [28]:- " It must be apparent, in comparing any two sentences imposed upon different offenders, that the facts and circumstances applicable to one could never be identical to the facts and circumstances applicable to the other. The degrees of similarity between or among any two or more offenders and the sentences imposed upon them will always be a matter of extent and degree. A series of matters favouring the imposition of one sentence in respect of a particular offender may favour the imposition of a completely different sentence in respect of another offender. The reasonable sense of grievance to which the authorities make reference is only triggered where the degrees of similarity between the particular factors being considered would appear to an objective bystander to be disproportionate to the sentences that respectively have been imposed. The very nature of this exercise will excite varying responses ." Consideration

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(3) The nature of the offences charged and the relevant maximum penalties were substantially similar in both cases. 77 The matters in (1), (2) and (3), together with those referred to in paragraph [74], are to be taken into account in determining whether the disparity or disproportion contended for is evident. 78 The issue is whether the overall term of six years, which includes a parole period of four years, reflects a marked disproportion as has been claimed (there being no claimed disproportion in the respective non-parole periods imposed in each case). At the end of this judgment is a Schedule that compares the sentences imposed on the applicant with those imposed on Marven and Cranshaw. 79 It is necessary to take into account, on the one hand, the observation of Blackmore DCJ to the effect that Cranshaw's criminality was not much below that of the applicant, and on the other hand, the factors that distinguish their respective criminality. In particular, the differences in the nature of their roles, the fact that the applicant committed his offences over a longer period namely over two years and two months compared to the three month period over which Cranshaw committed his offences, and the fact that in respect of some of the applicant's offences, he was at the time of their commission, on conditional liberty. 80 On the parity issue, the Crown relied upon this Court's observation in Regina v Ellis (1993) 68 A Crim R 449 to the effect that the parity principle in Lowe (supra) applies to sentences imposed on co-offenders but that it is not an appropriate principle to apply in relation to different offenders with similar characteristics who have committed similar crimes. The relevant factual and other differences concerning the offending by the applicant and Cranshaw (and the matters establishing a degree of commonality between them in that respect) have been identified above. It is clear that the central facts and matters that differentiate their respective offending mean that the parity principle has no strict application to the applicant's case. 81 However, by reason of the way both the Crown and the legal representatives for the applicant approached the sentencing exercise in this case, I consider fairness requires that the sentences imposed are to be assessed with due regard being given to the sentences imposed on both Marven and Cranshaw. Indeed, in the hearing in this Court, the Crown submitted:- "Because Cranshaw and [JOD] were members of the same syndicate and engaged in the commission of similar offences, the aggregate sentence imposed upon Cranshaw provides some useful basis for comparison. Technically, however, it does not give rise to the concept of parity as discussed in Lowe v R ." 82 On consideration of the matters that establish the nature, extent and the objective seriousness of the applicant's offending and the other matters discussed above, I do not consider, as was contended for the applicant, that there exists such a disproportion between the head sentences imposed upon the applicant and Cranshaw as to warrant this Court's intervention. 83 The applicant's objective criminality was of a high order by reason of the matters referred to in paragraph [74]. In the context of the present case of the applicant's repeated offending over a lengthy period, it is clear that that offending exhibits features that differ markedly from Cranshaw's offending. In this regard, the objective criminality in the applicant's case is such that it cannot, in my opinion, be said that there is any disproportion in the sentences in question. 84 In relation to the applicant's role in the organised criminal activity, it is not to be overlooked that, on the sentencing judge's findings, the applicant ran field operations on behalf of Yu, the leader of one of the crime syndicates, was involved in the use of assumed identities (of natural persons and of companies) and instructed other offenders. He, additionally, provided advice to Yu as to which branch of particular financial institutions were considered appropriate for the commission of offences. The sentencing judge's finding that the applicant occupied a position of trust within the organisation is a significant finding as is the fact that his offending continued over a period of two years and two months. 85 Having regard to all these matters and the respective non-parole periods imposed in each case, I do not consider that there is disproportion creating a justifiable sense of grievance between the overall sentences or by reason of the parole period of one year in respect of the sentence imposed on Cranshaw and the parole period of four years in the appellant's case. 86 Accordingly, the orders I propose are:-

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