Menzies v R

Court of Criminal Appeal (NSW)|2024-10-18|Before: Stern JA, Dhanji J, Faulkner J

Solicitors: Rake Lawyers (Applicant) Solicitor for Public Prosecutions (NSW) (Respondent) File Number(s): 2021/00222667 Decision under appeal Court or tribunal: District Court of New South Wales Jurisdiction: Criminal Citation: [2023] NSWDC 535 Date of Decision: 29 September 2023 Before: King SC DCJ File Number(s): 2021/00222667

JUDGMENT

STERN JA: I agree with Faulkner J.
DHANJI J: I agree with Faulkner J.
FAULKNER J: On 12 May 2023 a jury found Simon Menzies guilty of 14 offences relating to dealing with property reasonably suspected of being proceeds of crime. The offences were contrary to s 193C(2) of the Crimes Act 1900 (NSW) which applies where the value of the property is less than $100,000.
An offence contrary to s 193C(2) carries a maximum penalty of 3 years' imprisonment. There is no relevant standard non-parole period. On 29 September 2023 Mr Menzies was sentenced by King SC DCJ. For all but two of the offences, his Honour recorded indicative sentences of 18 months. For the other two offences, his Honour recorded indicative sentences of 6 months. His Honour imposed an aggregate sentence of 4 years' imprisonment with a 3 year non-parole period to commence on 4 August 2023 and expire on 3 August 2027. Mr Menzies will first be eligible for release on 3 August 2026.

Facts

There is no dispute about the sentencing judge's summary of the evidence.
The offending arose out of a business email compromise fraud, which occurs when an individual or company receives an invoice purporting to be from a legitimate provider of goods or services but seeks payment into a fraudulent bank account. The money is then on-transferred to other accounts or converted to other valuable but untraceable commodities such as cash, gold or cryptocurrencies.
The co-offender, Mr Knight, is Mr Menzies' cousin.
On 3 February 2021 Mr Knight opened a bank account with the Commonwealth Bank of Australia in the name of "Manus Knight trading as Knight Entertainment".
In July 2021, a government agency called Destination NSW received an email attaching four separate tax invoices totalling $942,700 for payment to Sydney World Pride Limited. The tax invoices were legitimate. They had been sent to Destination NSW by an employee of Sydney World Pride Limited named Andrew McKenzie. The tax invoices required payments into the ANZ bank account of Sydney World Pride Limited.
On 2 July 2021, Destination NSW received another email purportedly from Mr McKenzie in which a change to the banking details of Sydney World Pride Limited was notified. The new account was the CBA account previously opened by Mr Knight.
On 6 July 2021, Mr Knight opened an account with ABC Bullion Company, a company which sells gold bullion.
On 7 July 2021, Mr Knight contacted CBA to enquire about the BPAY transfer limit of his account and raised it to $999,999 when told it was only $100,000.
On 23 July 2021, Destination NSW transferred $942,700 into Mr Knight's CBA account under the belief that it was paying Sydney World Pride Limited.
At 4pm on 23 July 2021, Mr Menzies opened an account with ABC Bullion.
Shortly afterwards Mr Knight contacted ABC Bullion's online help desk for assistance with his account. He was informed that information he had provided could not be validated so his account remained inactive.
On the night of 23 July 2021, and in the early hours of 24 July 2021, 13 money transfers, each less than $75,000 were made using the BPAY facility from Mr Knight's CBA account to Mr Menzies' ABC Bullion account. The total of these transfers was $918,709.80.
In the early morning of 24 July 2021, a further $20,000 was transferred from Mr Knight's CBA bank account to a CBA account operated by Mr Menzies.
Mr Menzies is the person who used the internet to undertake these 14 transfers.
Each of these 14 transfers was a separate contravention of s 193C(2) by Mr Menzies. The amount of money transferred for each offence is set out in the below table: Count 1 $24,788.20 Count 2 $74,277.30 Count 3 $74,224.80 Count 4 $74,226.90 Count 5 $74,526.90 Count 6 $20,000.00 Count 7 $74,264.40 Count 8 $74,989.70 Count 9 $74,658.60 Count 10 $74,659.30 Count 11 $74,455.30 Count 12 $74,533.10 Count 13 $74,716.10 Count 14 $74,389.20

On 28 July 2021, Mr Knight was arrested at a CBA branch and entered into custody.
In the following days, Mr Menzies contacted ABC Bullion on multiple occasions to arrange to collect the gold purchased between 23 to 24 July 2021. On 4 August 2024, he went to the premises of ABC Bullion to collect the gold. He was arrested. A document recording the gold purchase receipt numbers were found on him.
There was no evidence in the District Court trial that either Mr Menzies or Mr Knight was involved in the original interception or manipulation of the Sydney World Pride bank account details.
There was no evidence about what was to be done with the gold once collected by Mr Menzies.

Section 193C of the Crimes Act 1900

Section 193C of the Crimes Act relevantly provides: 193C Dealing with property suspected of being proceeds of crime (1AA) A person is guilty of an offence if - (a) the person deals with property, and (b) there are reasonable grounds to suspect the property is proceeds of crime, and (c) at the time of the dealing, the value of the property is $5 million or more. Maximum Penalty - Imprisonment for 10 years. … (1) A person is guilty of an offence if-- (a) the person deals with property, and (b) there are reasonable grounds to suspect that the property is proceeds of crime, and (c) at the time of the dealing, the value of the property is $100,000 or more but less than $5 million. Maximum penalty - Imprisonment for 5 years. (2) A person is guilty of an offence if-- (a) the person deals with property, and (b) there are reasonable grounds to suspect that the property is proceeds of crime, and (c) at the time of the dealing, the value of the property is less than $100,000. Maximum penalty - Imprisonment for 3 years. (4) It is a defence to a prosecution for an offence under this section if the defendant satisfies the court that the defendant had no reasonable grounds for suspecting that the property was substantially derived or realised, directly or indirectly, from an act or omission constituting an offence against a law in force in the Commonwealth, a State or a Territory or another country. …

The sentencing of Mr Knight, the co-offender

Mr Knight was charged with two counts of dealing with property reasonably suspected of being the proceeds of crime. Mr Knight's offences were contrary to s 193C(1) which applies when the value of the property is between $100,000 and $5 million. The first offence arose from the receipt into Mr Knight's CBA account of the single sum of $942,700 from Destination NSW. The second offence arose from the transfer of $918,709.80 from Mr Knight's CBA account to Mr Menzies' ABC Bullion account. The second offence was described as a "rolled up" offence for the 13 individual transfers. The maximum penalty for contraventions of s 193C(1) is 5 years.
Mr Knight pleaded guilty.
He was sentenced on 29 September 2022 in the Local Court to an aggregate term of 14 months' imprisonment with a non-parole period of 6 months. An indicative sentence of 12 months was recorded for each offence. In addition, a third offence contrary to s 193C(2) was taken into account on a Form 1 in respect of the $20,000 transfer to Mr Menzies' CBA account.
Mr Knight subsequently appealed to the District Court against the severity of the sentence. The appeal was heard by Hunt DCJ on 15 February 2023. Hunt DCJ rejected the submission that Mr Menzies and Mr Knight had "got lucky by this money coming into this account" and found that Mr Knight's offences required a degree of sophistication. Hunt DCJ made the following finding: "To the extent that there was a degree of sophistication in the amounts of money that were transferred to acquire gold bullion, I am not able to be satisfied beyond reasonable doubt against [Mr Knight] that it was his choice to do that. I rather suspect that the sophistication involved is attributable to Mr Menzies who, by inference, seems to have been much more involved in the fraud part, rather than simply dealing in monies."
His Honour took into account Mr Knight's subjective circumstances being that he had no relevant criminal history, there were a number of referees who spoke highly of him, he was in a long term partnership, had three children and that he had been gainfully employed. His Honour applied a 25% discount for Mr Knight's guilty plea. Hunt DCJ nonetheless considered that the sentences imposed in the Local Court was inadequate. Mr Knight's indicative terms were each increased from 12 months to 16 months. The aggregate term was increased from 14 months to 24 months.
Unlike the Magistrate who sentenced Mr Knight in the first instance, Hunt DCJ further found that it was in the community interest that Mr Knight serve his sentence by way of an Intensive Corrections Order ("ICO"). To that extent, the overall outcome of the appeal was favourable to Mr Knight.

The sentencing of Mr Menzies

As set out above, Mr Menzies was the person who used the internet to undertake the 14 transfers by which the fraudulently obtained money was transferred out of Mr Knight's CBA account and into Mr Menzies' ABC Bullion account (for 13 of the transfers) and Mr Menzies' account with CBA (for one of the transfers). As previously stated, Mr Menzies was charged with 14 counts of contravening s 193C(2), each count constituted by one of the transfers.
Mr Menzies did not plead guilty. He defended the charges which were then the subject of a six day jury trial.
The sentencing hearing before King DCJ took place on 12 May 2023 and 1 September 2023. The remarks which Hunt DCJ had previously made when sentencing Mr Knight were before King DCJ. His Honour pronounced Mr Menzies' sentence and gave his remarks on 29 September 2023.
In addition to stating the facts of the case as set out above, King DCJ found that after his arrest, Mr Menzies had told police that Mr Knight had come to Mr Menzies' residence late on 23 July 2021 and said that he had an unexpected gambling or lotto win. Mr Knight told Mr Menzies that he was unable to use his ABC Bullion account, so Mr Menzies helped Mr Knight by making the transfers into Mr Menzies' ABC Bullion account. Mr Menzies claimed that he did not know anything about the source of the money other than what Mr Knight had told him. However, there was evidence before that jury that in April or May 2021 Mr Menzies had told a witness that he was involved in business email compromise fraud with people in Nigeria. Mr Menzies told the witness that he himself did not undertake the actual interception but he arranged for a CBA account into which the money could be diverted. Consistently with the jury's verdict King DCJ found that Mr Menzies had not established that he had no reasonable grounds for suspecting that the money in Mr Knight's account was derived or realised from an offence for the purposes of the defence in s 193C(4). King DCJ found that the inevitable inference from the jury's verdict is that the story told by Mr Menzies to the police was a false concoction between Mr Menzies and Mr Knight to protect them from prosecution.
King DCJ found that Mr Menzies was the person who went to ABC Bullion to collect the gold. There was no other evidence of what was to become of the gold. There was no evidence of anyone else being involved in the collection of the gold. On the limited evidence King DCJ found that Mr Menzies was collecting the gold purely for his own use.
King DCJ found that each of the 14 offences was serious, having regard to the amount of the transfers, 12 of which were for approximately 75% of the maximum covered by s 193C(2). The offences were a continuing course of conduct to move money out of Mr Knight's CBA account as quickly as possible to convert it into a form which would be more difficult for the authorities to trace. The sentencing judge considered that the offences were serious even though the timely arrest of Mr Menzies meant that the loss caused by the offending was minor.
King DCJ took into account Mr Menzies' subjective circumstances, starting with his criminal history. As a 43 year old man, Mr Menzies had a significant criminal history. His past offending included assault, drug offences, stalking, intimidating and driving offences. He has previously been convicted of wounding with intent to cause grievous bodily harm as a result of events in January 2014. On that occasion, he received a sentence of 4 years imprisonment with a non-parole period of 2 years. Mr Menzies had had other periods in custody, including a six month period in 2020 in respect of charges which were ultimately dismissed.
Mr Menzies was subject to a Community Corrections Order at the time of the current offending.
Beyond this, the evidence about Mr Menzies' subjective circumstances was very limited. Mr Menzies did not give evidence. He relied upon a reference from the CEO of a community organisation, the nature and purpose of which was unclear. Mr Menzies had been involved with the organisation as a volunteer and mentor and was supported by the CEO, but King DCJ did not give the reference significant weight in the absence of evidence that the CEO was aware of Mr Menzies' criminal history and the nature of his current offending.
There was evidence that Mr Menzies has a bachelor's degree in Islamic Studies and a Certificate III in drug and alcohol counselling. At the time of the offending Mr Menzies was operating a legal brothel in Kings Cross, which had subsequently failed because of Covid-19 restrictions. More recently he was unemployed and in receipt of welfare payments.
After Mr Menzies' conviction a Sentencing Assessment Report was prepared which recorded that Mr Menzies sought to minimise his involvement in the offending and claimed that he did nothing wrong. Mr Menzies consistently blamed Mr Knight for the offences. Mr Menzies' claim that he did nothing wrong had a number of consequences, namely that he demonstrated no insight into the impact of the offences, he was unwilling to undertake intervention, he was unwilling to undertake supervision, he was a medium to high risk of reoffending, he had no remorse, no contrition and his prospects of rehabilitation were highly guarded.
As for the conduct of the trial, Mr Menzies chose to defend the charges, essentially on the basis that Mr Knight had told him the money had been unexpectedly won in gambling or in a lottery. King DCJ considered that the defence was untenable. Mr Menzies had provided limited assistance to the prosecution by agreeing to some facts about business email compromise fraud, and therefore was entitled to some benefit as provided by s 22A of the Crimes (Sentencing Procedure) Act 1999 (NSW). The benefit was limited because proof of the limited admitted facts would have been undemanding for the Crown and, in any event, the assistance was offset by the manner in which Mr Menzies chose to cross-examine a key Crown witness at trial. Mr Menzies was not entitled to any discount for a guilty plea.
King DCJ found that there was a significant difference between the subjective circumstances of Mr Menzies and Mr Knight, including the limited information which Mr Menzies had chosen to provide to the Court on sentencing.
King DCJ found that there was a strong need for a sentence to reflect specific deterrence in Mr Menzies' case. King DCJ also found that there was a strong need for general deterrence to protect the community from the diversion of public funds, especially in the significant amounts involved in this case.
His Honour specifically addressed the parity principle in sentencing Mr Menzies, stating in his reasons: "There is of course an issue of parity in relation to this matter, but in my view there is a significant difference between the co-offender having been dealt with for two like but more serious offences in terms of the maximum provided as well as one offence on a Form 1, as opposed to this offender being dealt with for a total of 14 counts for in each case a less serious offence on the criminal calendar: that is, it has a maximum sentence of three years per offence rather than five years for the matters dealt with by Hunt DCJ."

The sentence

As stated above, King DCJ recorded an indicative sentence of 18 months for each of the offences, except for Count 1 and Count 6 for which an indicative sentence of 6 months was recorded.
Given the overlap between the 14 offences, King DCJ considered it appropriate to impose an aggregate sentence. The aggregate sentence was 4 years.
There was no evidence upon which the sentencing judge found special circumstances. The non-parole period is 3 years.

The appeal

Mr Menzies seeks to rely upon one ground of appeal, being that the disparity between the sentences of him and Mr Knight gives rise to a justifiable sense of grievance and as a consequence, a different sentence is warranted at law.
A succinct and relevant statement of the principles governing parity can be found in Vujinovic v R [2024] NSWCCA 10 at [48]-[52] (Weinstein J, with whom Davies and Button JJ agreed): "[48] The principles with respect to parity are well-established and need not be repeated at length. There must not be a marked disparity between the sentences imposed on co-offenders such as to give rise to a justifiable sense of grievance or the appearance that justice has not been done: Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 at 609 - 610 per Gibbs CJ. [49] In Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28], French CJ, Crennan and Kiefel JJ said:- Consistency in the punishment of offences against the criminal law is "a reflection of the notion of equal justice" and "is a fundamental element in any rational and fair system of criminal justice". It finds expression in the "parity principle" which requires that like offenders should be treated in a like manner. As with the norm of "equal justice", which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances. (Citations removed) [50] In DS v R [2014] NSWCCA 267 at [39], the Court (Bathurst CJ, Fullerton and Davies JJ) described the approach to be adopted in addressing a complaint of parity:- The sense of grievance complained of when the sentence for one offender is compared relative to that of a co-offender or co-offenders, is to be assessed objectively governed by considerations of substance rather than form. It is only triggered where differences in the sentences imposed on co-offenders is disproportionate to relevant distinctions in the role each played in the commission of the offence (even if the roles might be differently described or involve different conduct) and in an offender's subjective circumstances. There are necessarily degrees of both similarity and difference in the criminal conduct of co-offenders and in their subjective circumstances. In some cases this requires that different sentences be imposed. However, it is only where the discrepancy between sentences is not reasonably explained by the degree of difference between co-offenders and their offending that the disparity is such that appellate intervention is required. For there to be a justifiable sense of grievance, the disparity must be "gross", "marked" or "glaring" (see the discussion by Howie J in Crystal Lee England v R [2009] NSWCCA 274 at [61]-[67]). [51] In Jaafar v R [2022] NSWCCA 254, Yehia J (with whom Harrison and Fagan JJ agreed) said at [42] that:- Merely pointing to some difference between the two subjective cases of co-offenders who commit the same crime would not of itself establish a justifiable sense of grievance. Ultimately, the question is whether the sentencing discretion miscarried, not whether this Court would have imposed a different sentence to that imposed the first instance: Moran v R [2022] NSWCCA 217 at [29]. [52] I accept, as was submitted by the Crown, that the question for an appellate Court is whether the degree of disparity is unreasonable or irrational in some way so as to indicate that the sentencing discretion miscarried. In Lloyd v R [2017] NSWCCA 303, R A Hulme J (with whom Payne JA and Garling J agreed) said at [97]:- In short, it is not a question for this Court to second-guess the primary judge and to consider what we would have done: see Lowndes v The Queen (1999) 195 CLR 665 at 671-672 [15]; [1999] HCA 29. The question may be bluntly stated: was the differentiation made by the judge one that was open to her in the exercise of her discretion?"
The principle of proportionality requires the sentence to "properly reflect the personal circumstances of the particular offender and the particular conduct in which the offender engaged when those circumstances and that conduct are compared with other offenders and offending": Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40 at [51] (French CJ, Hayne, Crennan, Kiefel and Bell JJ).
The parity principle is not confined to sentences imposed on offenders charged with the same criminal offence arising out of the same criminal enterprise. It also applies to sentences imposed on people engaged in the same criminal enterprise regardless of the specific charges laid against each (although it cannot overcome the differences in sentences which arise from a prosecutorial decision about what charges are proceeded with): Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 at [202]-[203] (Campbell JA, with whom Howie and Rothman JJ agreed).

Mr Menzies' submissions and determination

Mr Menzies submits that he has a justifiable sense of grievance arising from a marked disparity between the sentence imposed on him and the sentence imposed on Mr Knight. Numerated in months, the sentence imposed on Mr Menzies is 48 months with a non-parole period of 36 months. The undiscounted sentence imposed on Mr Knight is 32 months, which is a 24 month sentence after a 25% discount for the guilty plea.
At the forefront of his argument Mr Menzies emphasises that the offences of which Mr Knight was convicted (s 193C(1)) carry a substantially higher maximum penalty, namely 5 years imprisonment, as opposed to 3 years for the offence of which Mr Menzies was convicted (s 193C(2)). The difference in maximum penalty is correct, but Mr Menzies seeks to have that particular element viewed in isolation from the fact that he was convicted of 14 offences whereas Mr Knight was convicted of two offences only (with a third offence dealt with on a Form 1). There is no dispute that in substance Mr Menzies and Mr Knight were convicted for the same transfers involving the same total amount of money. Given the different number of offences with which each of the co-offenders was charged, the submission that the respective maximum penalties are a material difference between the two cases does not pay sufficient attention to the substance of the offending.
Mr Menzies does not demonstrate otherwise by submitting that the aggregate sentence imposed on Mr Knight included an accumulation of 8 months on the discounted indicative sentences (or 10.7 months on the undiscounted indicative sentences), whilst Mr Menzies' aggregate sentence included an accumulation of 30 months. Mr Knight was convicted of two offences and, hence, there was far less scope for the accumulation of the indicative sentences. There was significant scope for accumulation of the 14 indicative sentences for Mr Menzies' offences.
As the Crown points out Mr Menzies does not assert any error by King DCJ in his Honour's application of the totality principle when assessing the aggregate sentence reflective of Mr Menzies' total criminality.
Mr Menzies' emphasis of the difference in accumulation is misplaced in an appeal based on parity. The different scope for accumulation flows from the prosecutorial decisions about the offences and number of offences with which each co-accused was charged. Any perceived lack of parity between in the resulting sentences is not open to complaint on that account: Jimmy v R at [117] (Campbell JA), [247] (Howie J) and [267] (Rothman J).
Mr Menzies further submitted that it is arguable that the role of Mr Knight was objectively far more serious than the role of Mr Menzies. The only matter identified to support that submission is the fact that Mr Knight opened the CBA account into which Destination NSW was deceived into depositing the money. The unspoken premise for this argument is that Mr Knight opened the CBA account for the purpose of the criminal enterprise of which Destination NSW was subsequently the victim, as opposed to Mr Knight opening the account for his own everyday purposes. The former case features planning and purpose and possibly leadership which is lacking in the latter. King DCJ did not make the necessary factual finding. Although not directly relevant, Hunt DCJ expressly inferred that Mr Knight did not open the CBA account for the purpose of these offences. That inference accords with the evidence. The CBA account was a business account which Mr Knight opened on 3 February 2021 in the name of "Knight Entertainment". Mr Knight was a musician. After 3 February 2021 Mr Knight evidently used the CBA account and the amount of money in it changed from time to time. The highest balance was $8,338.07. The account had a balance of $1,176.82 at the start of 23 July 2021.
Apart from opening the CBA account, nothing has been identified to support the submission that Mr Knight had a more serious role. Indeed, absent Mr Knight opening the account for the purposes of fraud, Mr Knight's role was entirely passive.
As set out in [30] above, Mr Knight was sentenced on the basis that someone other than Mr Knight (ie, Mr Menzies) was the senior partner in the fraud.
King DCJ correctly stated that the remarks by Hunt DCJ were based on the evidence before Hunt DCJ. King DCJ recognised that he had to make an entirely independent assessment about Mr Menzies. King DCJ did not ultimately make a finding about the relative roles of Mr Menzies and Mr Knight. Nonetheless, King DCJ did not sentence Mr Menzies on the basis that someone other than Mr Menzies was the senior partner in the fraud. As the Crown submitted on the appeal, King DCJ sentenced Mr Menzies on the basis that Mr Menzies made 14 transfers to purchase the gold (and deposit $20,000 into Mr Menzies' own account), Mr Menzies repeatedly contacted ABC Bullion to collect the gold, Mr Menzies tried to collect the gold purely for his own use and Mr Menzies had revealed to the witness his involvement with business email compromise fraud months before the offending. Mr Menzies was sentenced for a role which was objectively more serious than the role for which Mr Knight was sentenced.
There were other significant differences which are apparent from the respective remarks on sentence which are referred to in the table that follows: Feature Mr Menzies Mr Knight Offence s 193C(2) Crimes Act 1900 s 193C(1) Crimes Act 1900 Max Penalty 3 years 5 years Number of offences 14 2(+1) Plea Not guilty Guilty (25% reduction) Record Criminal record relating to assault, drugs, stalking and intimidating and driving offences in addition to custodial history of imprisonment and a CCO. No relevant criminal record. Told a witness that he was involved in a "business email compromise fraud". Role Responsible for 14 transfers. Someone else seems to have been much more involved in the fraud part. Repeatedly contacted ABC Bullion to collect the gold with no evidence of anyone else being involved. Personal gain Gold to be collected purely for his own use. Nil Remorse No evidence of remorse and minimised his involvement in the offending claiming he did nothing wrong. Conditional liberty at the time of offending Yes No Character No evidence adduced by Mr Menzies. Good character, stable relationship, children and employment. Prospects Medium to high risk of offending and highly guarded prospects of rehabilitation Special circumstances No Yes. Mr Knight receives NDIS funding and cares for his disabled son.

The table illustrates the difference between the two cases. In particular, the differences highlight the different need for specific deterrence as between Mr Menzies and Mr Knight.
As set out above, King DCJ was conscious of the application of the parity principle, specifically referring to it in his Honour's remarks and undertaking a careful analysis of the respective cases and criminality of the two co-offenders.
Given the different roles played by Mr Menzies and Mr Knight, the finding that the gold was to be collected by Mr Menzies purely for his own use, the very different subjective circumstances, the fact that Mr Menzies was at conditional liberty at the time of the offending and has a substantial criminal history, including prior periods of custody, it cannot objectively be said that the respective terms of the sentences imposed on Mr Menzies and Mr Knight give rise to a justifiable sense of grievance. The discrepancy between the terms of the two sentences is reasonably explained by the degree of difference between Mr Menzies and Mr Knight and their offending. Mr Menzies has not demonstrated that the differentiation made by King DCJ between Mr Menzies' sentence and Mr Knights' sentence was not one which was open to his Honour in the exercise of the sentencing discretion.
In oral argument, Mr Menzies submitted that his justifiable sense of grievance arises not just from the term of his sentence relative to the term of Mr Knight's sentence, but also from the fact that Mr Menzies has been sentenced to imprisonment whilst Hunt DCJ made an order that Mr Knight's sentence be served by way of intensive correction in the community. This submission cannot be accepted having regard to process by which a sentence of imprisonment is imposed under the Crimes (Sentencing Procedure) Act. Assuming the s 5(1) threshold is satisfied, the sentencing court must make two discrete decisions; first it must determine the appropriate term of imprisonment and then it must consider whether to make an order under s 7(1) directing that the term of imprisonment to be served by way of intensive correction in the community: Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3 at [25]-[32] (Gaegler J), [59]-[62] (Gordon, Edelman, Steward and Gleeson JJ) and [205] (Jagot J, with whom Kiefel CJ agreed at [9]). Consideration of whether to make an Intensive Correction Order does not arise until after the term of imprisonment has been determined. Once the term has been determined, it may be that it is not open to the sentencing court to make an ICO because the term is too long. For example, an ICO may not be ordered where an aggregate sentence of imprisonment has been imposed which exceeds 3 years: s 68(2).
It is impermissible for the sentencing court to start with the intention to make an ICO and then select the term of the sentence in order to achieve that result: Stanley v DPP (NSW) at [205] (Jagot J).
For the reasons given above, the disparity between Mr Menzies' 4 year sentence and Mr Knight's discounted sentence of 2 years does not give rise to a justifiable sense of grievance. That conclusion is not affected by the fact that the term of Mr Knight's sentence made him eligible for consideration for an ICO whereas the term of Mr Menzies' sentence made him ineligible.
The sole ground of appeal has not been made out.

Orders

I propose the following orders: 1. Grant leave to appeal. 2. Appeal dismissed.

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: 20 December 2024

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