R v Huang

Crimes (Administration of Sentences) Act 1999 LEGISLATION CITED: Crimes (Appeal and Review) Act 2001 Crimes (Sentencing Procedure) Act 1999

Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154 R v JW [2010] NSWCCA 49 R v Thai [2009] NSWCCA 314 CASES CITED : R v Thomson & Houlton [2000] NSWCCA 309, 49 NSWLR 383 R v Wegener [1999] NSWCCA 405 R v Zamagias [2002] NSWCCA 17 Reed v R [2007] NSWCCA 4 Stevens v R [2009] NSWCCA 260

PARTIES: Regina (Applicant) Jun Yu Huang (Respondent)

COUNSEL: P Leask (Applicant) G Turnbull SC (Respondent)

SOLICITORS: S Kavanagh (Solicitor for Public Prosecutions) (Applicant) Justin Lewis & Co (Respondent)

IN THE COURT OF CRIMINAL APPEAL 2008/12350

GROVE J SIMPSON J R A HULME J

21 April 2010 R v Jun Yu HUANG Judgment 1 GROVE J: I have had the advantage of reading, in draft form, the respective judgments of Simpson J and RA Hulme J. As, like the latter, I agree with the order proposed by Simpson J I will limit the matters to which I advert or upon which I comment. 2 It is not necessary to repeat the facts and circumstances, the statements of which I gratefully adopt from the judgment of Simpson J. However, even giving generous weight to factors favourable to the respondent, I would consider the combination of the objective gravity of the indicted offence, the need to reflect the criminality in the offences scheduled in the Form 1 and the subjective matters unfavourable to the respondent including his prior criminal record, generally and for offences of a like nature, his failure to respond appropriately to significant leniency previously received and the currency of a bond to be of good behaviour, leads to an assessment of the sentence as manifestly inadequate. I would so conclude. 3 In reaching that conclusion, I have taken into account the non-custodial consequence of the order for suspension and, in that sense, "a wrong type" of sentence is considered to have been imposed: see Dinsdale v The Queen (2000) 202 CLR 321 at 325. 4 Reference has been made to the opinion of Simpson J in R v Thai [2009] NSWCCA 314 concerning the primary focus upon the length of sentence and not, in that case, upon an order that it be served by periodic detention. McClellan CJ at CL, with particular reference to s 6(3) of the Criminal Appeal Act 1912, opined that consideration of all elements including the manner in which a sentence is to be served was appropriate (when determining of a sentence is manifestly inadequate or excessive). The third member of the Court (Hidden J) found it unnecessary to express a view. 5 Neither is it necessary in the present appeal to seek to resolve any apparent controversy between the views mentioned and, to the extent that Simpson J has reiterated that which she expressed in Thai, I would record that I reserve my opinion, particularly as submissions upon the matter were not made in this appeal. 6 Like RA Hulme J, I am struck by the possibly serendipitous consequence that a "discount" from an (unstated) assessment of sentence should produce the maximum term in respect of which an order for suspension is permissible. I agree with what he has written. 7 Although I differ from Simpson J in finding manifest inadequacy, this Court retains a discretion to decline to intervene subject to the restrictions legislated by s 68A of the Crimes (Appeal and Review) Act 2001 as explained in R v JW [2010] NSWCCA 49. I share the reasons of Simpson J for exercising that discretion in this case. 8 As above stated, I agree with the order proposed by Simpson J. 9 SIMPSON J: This is a Crown appeal against what is asserted to be the manifest inadequacy of a sentence imposed upon the respondent in the District Court on 14 August 2009, following his plea of guilty to a single charge of conspiracy to cheat and defraud. In addition, pursuant to Pt 3 Div 3 of the Crimes (Sentencing Procedure) Act 1999 ("the Sentencing Procedure Act"), the respondent asked that seven further offences (five of having custody of a false instrument, and two of using a false instrument) listed on a Form 1, be taken into account. 10 The offence of conspiracy to cheat and defraud is a common law misdemeanour, subject to no statutory maximum penalty. Sentencing is "at large". The sentencing judge imposed a sentence of imprisonment for 2 years. Pursuant to s 12 of the Sentencing Procedure Act, he ordered that execution of the sentence be suspended conditional upon the respondent entering into a good behaviour bond commencing on 14 August 2009. It will be noted that he specified no non-parole period.

The facts 11 An agreed statement of facts was put before the sentencing judge. 12 The offence was committed over a period between 1 September and 6 October 2006. In short, the respondent became involved in a conspiracy to defraud a finance company of $800,000. This was to be achieved by means of a fraudulent loan application. One participant was a man called Anwer Wanna. He, it seems, was the participant who was to pose as the loan applicant. Another participant was Meng Wang. Two other participants were mentioned in the statement of facts, named only as "Alex" and "Steve". 13 For his part, Wanna was to receive a (unspecified) daily allowance, plus a lump sum of between $40,000 and $80,000. 14 The respondent's role was to arrange for the manufacture of a fraudulent driver's licence, and a fraudulent Medicare card both in the same name. This was the name of a real person, who was entirely unaware that his personal details were being appropriated. The driver's licence contained a photograph of Wanna. Using the false driver's licence and Medicare card Wanna and Wang opened various accounts with a number of banks. The respondent assisted Wanna in preparing the false documentation for these accounts. He also coached Wanna on what to say and how to present himself when dealing with the finance company; he went to the extent of preparing a script for Wanna to follow. 15 On 4 October a loan application in the amount of $780,000 was submitted to a financial institution, in the same name as that used in the false documents, and accompanied by false documents. It attracted the suspicion of the financial institution employee who dealt with it, who sought legal advice, referred the matter to police, and contacted the person whose identity had been used to create the false documentation. 16 The financial institution employee arranged for Wanna to attend at the office of the financial institution's solicitors on 6 October, purportedly in order to complete the loan application documentation. Police were in attendance and Wanna was arrested. He was in possession of a number of fraudulent identity documents and credit cards, all bearing the same name. They had been supplied to him by the respondent. 17 Wanna told police that the respondent was the organiser of the enterprise. 18 The respondent had been under suspicion at least since 26 September and he was under surveillance and his telephone monitored. The summaries of his telephone contacts contained in the agreed statement of facts tends to support Wanna's account that the respondent had an organising role in the conspiracy. For example, on occasions he coached Wanna on what to say and how to present himself when attending at the finance company to complete the documentation for the loan application. 19 The respondent was arrested on 10 October and was then charged with the Form 1 offences, but not with the substantive offence. He was granted bail. In his possession were two false credit cards, in a different false name. The respondent falsely told police that they belonged to a friend of his and were in his possession because he owed money.

20 On execution of a search warrant at an office used by the respondent, police located a false NSW driver's licence and a false Medicare card, both in yet another name. Possession of these together with the two credit cards, account for four of the custody of false instrument offences on the Form 1. Subsequent inquiries revealed that, earlier on the day of his arrest, the respondent had used a false credit card to purchase Hong Kong dollars (the equivalent of AU$4000), and the Medicare card as identification. Later on the same day he opened a cash account in the same false name, depositing $19,800 in cash. These constitute the two offences of using a false instrument on the Form 1. 21 It was not until 11 January 2007 that the respondent was charged with the indictable offence of conspiracy. He remained in custody until 17 January when he was able to meet bail conditions imposed on 12 January. 22 Wanna and Wang (the latter of whom seems to have played a relatively minor part) each pleaded guilty in the Local Court to various offences. Wanna, who was charged with and pleaded guilty to six offences of possessing false instruments with intent to use them, was originally sentenced to imprisonment for 12 months with a non-parole period of 9 months. The sentence was reduced by reason of the plea (although the reduction was unquantified) and by 25 percent for promised assistance in the prosecution of the respondent. Wanna had been on parole at the time of the offences. He was 67 years of age and in poor health. On appeal to the District Court, the non-parole period was reduced to 6 months. 23 Wang pleaded guilty to two offences of the same kind, and was fined $200 and released on a Community Service Order (100 hours). 24 Following several days of committal proceedings, the indictable charge against the respondent was listed for trial in the District Court on 6 April 2009 - 2½ years after his arrest. On 9 April he entered a plea of guilty. (It does not appear that the trial actually commenced.) It was not until 14 August that he was finally sentenced - almost 3 years after arrest. The reason for the delay between plea and sentencing is not before this Court. From 17 January until the date of sentencing, the respondent was on conditional bail, reporting to police, initially daily, and, from 12 April 2007, three times weekly.

The proceedings on sentence 25 Before the sentencing judge were a Pre-Sentence Report prepared by an officer of the Probation and Parole Service, a report of Professor Stephen Woods, a psychologist, and also letters written by Ms Yinghua Liu (the respondent's then fiancée, who also gave oral evidence), and by the respondent's brother, mother and an employer. 26 The respondent did not give evidence. 27 As a result of that evidence, the sentencing judge found that the respondent had presented "a strong subjective case". I turn now to that case.

The respondent's personal circumstances 28 The respondent was born in May 1978, in China. He was therefore 28 years old at the time of the offences. His father migrated to Australia in 1986. The rest of the family joined him in 1991, when the respondent was 13 years old. The respondent has a brother, younger than he by five years. In Australia, the family was united, supportive and education/career orientated. However, his parents worked long hours, managing and owning restaurants, often leaving the children unsupervised. 29 The respondent experienced difficulties at school, and was suspended for truancy, as a result of which he terminated his formal education at the age of 17. He had employment of various kinds, and in 1999 opened a computer shop. His parents retired and he took over the management of three restaurants and a catering business that they had operated.

30 At the age of 13 he began gambling, and this developed, by the age of 16 into what was later termed (by Professor Woods) a pathological habit. 31 He has a criminal history that commenced in the Children's Court in 1994 (when he was 16), and includes six offences of larceny, others of being in possession of goods reasonably suspected of being stolen, receiving, buying and selling second hand goods without a licence, and one of inciting the commission of a criminal offence. Most tellingly, for present purposes, in 2001 he was convicted on 10 counts of having a false instrument with intent to use it. There is no detail as to the nature or circumstances of these last offences. In respect of those (and others) he was sentenced to imprisonment for 6 months, to be served by way of home detention. However, only a month after that sentence was imposed, the State Parole Authority revoked the order that the sentence be served in that way, and the respondent served the balance of the term of 5 months in full-time custody. 32 Subsequently, in May 2002, he was convicted of another charge of receiving, in respect of which he was sentenced to imprisonment for 5 years with a non-parole period of 3 years. An appeal against the severity of the sentence was dismissed. His record shows that, in July 2005, a parole order was revoked and he was ordered to serve the balance of his term, of 13 months, in custody. In October 2005 he was convicted of reckless driving, and sentenced to imprisonment for 3 months. 33 Again significantly for present purposes, in October 2005 he was convicted of using a false instrument with intent, and with possession of a false instrument with intent to use it. On this occasion he was given the benefit of a 12 month bond under s 9 of the Sentencing Procedure Act, conditional upon his entering a residential rehabilitation programme. The bond was still current (although close to expiry) at the time of the present offences. 34 Both the author of the Pre-Sentence Report and Professor Woods accepted that the respondent's criminality stemmed from his gambling addiction. Both also accepted that he had ceased the habit following his 2006 arrest. Professor Woods accepted that his behaviour satisfied the criteria for a diagnosis of pathological gambling, in remission from October 2006. 35 The Probation and Parole Service officer considered the respondent to be "intelligent and hardworking". Professor Woods assessed him to be "of high average intelligence". 36 Professor Woods considered him to be a low risk of offending; but to be at risk of "a clinically severe reaction (ie depression and anxiety)" when sentenced. This was because he further considered the respondent to be engaging in "active denial" (Professor Woods did not specify to what the denial related, but I am prepared to assume that that was the risk of incarceration). 37 As mentioned above, the respondent's then fiancée, Ms Liu, gave oral evidence. She had known the respondent for about 4 years. The most significant aspect of her evidence concerned the respondent's current work and personal situation. She said that, in 2007, he was successful in obtaining a catering contract at Mascot, and this involved his working 6 to 7 days per week. Since then, he has acquired several more catering contracts, at clubs and golf courses, and the business is progressing to the point that it employs 15 to 20 people, and is making a (modest) profit. 38 As a result, Ms Liu said, the respondent has gained confidence, and does not avoid contact with people as he previously had, and has given up gambling altogether. 39 She said that the respondent has taken on the sponsorship of two children in China as some sort of atonement. Finally, she said that she and he had jointly purchased a house over which there is a mortgage in the amount of $520,000. Although she works as an accountant, she would not be able, herself, to meet the repayments on the mortgage. The remarks on sentence 40 In his carefully considered remarks on sentence, the sentencing judge began by outlining the facts. He recorded the sentences imposed upon the co-offenders, and noted that, because they were dealt with in the Local Court, principles of parity did not strictly apply. 41 He noted that the penalty for a common law misdemeanour is "at large", but that, for sentencing purposes, regard could be had to the maximum penalty for an equivalent substantive offence (which he considered to be imprisonment for 5 to 10 years). Nevertheless, he accepted that the offence was "objectively a serious matter" (as it plainly was). He noted that, because the enterprise was intercepted, there was no actual loss of money, and no breach of trust involved. He acknowledged that the respondent was subject to a bond at the time of the offences, and that this had to be treated as an aggravating feature. 42 He found it difficult to identify the respondent's role in the conspiracy. There was no evidence as to what he was to receive by way of remuneration. He was not satisfied that the respondent was "the prime instigator". That was because the facts showed that other individuals, who had never been arrested or charged, were, on occasions, giving advice and instruction to the respondent. 43 In the course of assessing the objective seriousness of the conspiracy offence, he acknowledged that "identity fraud" (which this undoubtedly is) "cost[s] the community dearly". Having said that, he added that this "does not appear to be the most sophisticated conspiracy to defraud", as evidenced by its early detection. 44 He considered that the plea of guilty had "real utilitarian value" but recognised that, by reason of its timing, that value was limited; he allowed a reduction in sentence of 10 percent. 45 He declared himself impressed by the evidence of Ms Liu. He noted the Pre-Sentence and psychological reports. He considered relevant matters of aggravation and mitigation required to be taken into account by s 21A of the Sentencing Procedure Act. He accepted Professor Woods' assessment that the respondent was unlikely to re-offend and therefore that he had good prospects of rehabilitation. He expressly considered the question of remorse, as governed by s 21A(3)(i) (as recently amended) of the Sentencing Procedure Act and, notwithstanding that the respondent did not give evidence, concluded (from the evidence of Ms Liu and the report of Professor Woods and the Pre-Sentence Report) that there was objective evidence that the respondent was remorseful, and he took that into account. 46 He gave special consideration to the delay between arrest and sentencing. He acknowledged that some of the delay was attributable to the respondent, but also noted that he was not originally charged with conspiracy to cheat and defraud, and said that "negotiations have taken some time". The material before this Court does not disclose the course of events in this respect. According to the (undisputed) particulars before this Court, the conspiracy charge was laid as early as 11 January 2007. The judge considered that, as a result of the delay, three relevant matters arose. These were:

(i) the suspense or uncertainty in which the respondent had been left "following intervention by authorities following his arrest";

(ii) the evidence of rehabilitation during that period;

(iii) the principles concerning sentencing for "a stale crime": he referred to R v Hathaway [2005] NSWCCA 368. 47 He held that the respondent had shown "real progress on the road to rehabilitation" and that he could "truly" be said to be "at the crossroads". In explication of this, he noted that the respondent's catering business provided employment for up to 20 employees, that he had not re-offended since arrested, that he had strong family support, and that he had been on relatively strict bail for a long period. He then said: "The real relevance of the rehabilitation in this case is that a full time custodial sentence is very likely to undo the good progress to date." 48 He returned to a consideration of the sentences imposed on Wanna and Wang and said that the respondent played a more prominent role in these offences than Mr Wanna, but that Wanna had a more serious criminal history. (This last finding may have been unduly favourable to the respondent. Wanna's criminal history was not before this Court, but both the magistrate and the District Court judge who heard the appeal commented on his record in terms that suggest it was "significant". No issue was taken with the finding by North DCJ.) 49 He took into account the need for general and specific deterrence. 50 He then found that special circumstances pursuant to s 44(2) of the Sentencing Procedure Act existed (although, in the result, because he ordered that the sentence be suspended, he did not impose a non-parole period: Sentencing Procedure Act, s 12(3)). 51 He paid particular attention to s 3A of the Sentencing Procedure Act, which precludes the imposition of a sentence of imprisonment unless the court is satisfied that, having considered all possible alternatives, no penalty other than imprisonment is appropriate. He made a finding to that effect, and concluded that the appropriate sentence was of imprisonment for 2 years. (That was the sentence he imposed after allowing the reduction of 10 percent in recognition of the plea of guilty.) 52 In the result, it appears to me, two circumstances played a major part in his Honour's determination to order that the sentence be suspended. These were the delay in bringing the respondent to sentence, and his substantial demonstrated rehabilitation. He concluded that the interests of the community would be better served by allowing the respondent's rehabilitation to continue, and that a full-time custodial sentence was likely to undo "all the good progress" that had been made to the date of sentence. 53 He, accordingly, imposed the sentence that he had indicated he would, and ordered that its execution be suspended.

The Crown appeal 54 As I have indicated above, the Crown appeals on the ground that the sentence is manifestly inadequate. It contends that three errors can be identified that may account for the asserted manifest inadequacy. These are:

(i) the sentencing judge failed to give adequate regard to the need for general deterrence;

(ii) the sentencing judge gave too much weight to the respondent's subjective circumstances and failed to impose a sentence that adequately reflects the objective criminality of the offence;

(iii) the sentencing judge failed to impose a sentence that reflected the offences taken into account pursuant to Pt 3 Div 3 of the Sentencing Procedure Act . 55 The Crown accepted and relied upon the sentencing judge's characterisation of the principal offence as one of "identity fraud" and pointed to a decision of this Court (Stevens v R [2009] NSWCCA 260) on that subject, and in particular the judgment of Spigelman CJ. (That judgment post-dates sentencing of the respondent.) It is unnecessary to quote what his Honour said; he referred to the effects of identity crimes on victims, and on the community generally, and the costs associated therewith. He also referred to prevalence as a matter relevant to the selection of sentence. He emphasised the weight that must be given to general deterrence. 56 The Crown submission was, simply, that the suspended sentence of 2 years' imprisonment would not operate as a deterrent to others considering embarking upon criminality of this kind. 57 Further, the Crown pointed to the respondent's criminal history, including the fact that, at the time of the offence, he was subject to a good behaviour bond. 58 While not challenging his Honour's refusal to find that the respondent was "the prime instigator" of the conspiracy, the Crown pointed to the evidence that the respondent recruited, trained, directed and instructed Wanna in performing his role. As I have said earlier, there was evidence to support a conclusion that the respondent was involved in the organisation of the scheme; that is not inconsistent with the sentencing judge's inability to find that he was "the prime instigator". 59 The Crown also argued that the sentence failed adequately to take into account the Form 1 offences which were, themselves, serious.

The response on behalf of the respondent 60 The submissions made on behalf of the respondent addressed each of the individual errors which the Crown theorised could be seen to be behind the sentence that resulted. Noting that the decision in Stevens had not been delivered at the time of sentence, senior counsel nevertheless argued that the sentencing judge had correctly anticipated the kind of matters there alluded to. He pointed out, however, that the judge had expressly found that the offence was not "the most sophisticated conspiracy to defraud" because it was detected by the finance institution at such an early stage, and that there was no actual loss of money and no breach of trust. I think it is correct that the sentencing remarks denote an appreciation of the approach taken by the Chief Justice in Stevens. 61 In R v Zamagias [2002] NSWCCA 17, Howie J outlined the steps to be taken in criminal sentencing: paras [26]-[30]. On behalf of the respondent it was submitted that these steps had been correctly followed. 62 Senior counsel then took issue with the Crown's suggestion that the sentencing judge gave too much weight to subjective factors at the expense of a proper appreciation of the objective gravity of the offence. He also took issue with the suggestion that inadequate attention was given to the Form 1 offences. * * * 63 One difficulty in the resolution of this appeal is this: the Crown never clearly identified whether its complaint concerned the length of the sentence, or the fact that the suspension order was made, or a combination of the two. The following appear in the Crown's written submissions: "12 … (i) in imposing a wholly suspended sentence of 2 years imprisonment …";

"21 It is evident that his Honour's decision to wholly suspend the sentence of imprisonment was made as a result of the respondent's subjective case.";

"29 The sentencing judge erred in imposing a manifestly inadequate sentence in circumstances where a more severe sentence was warranted." 64 A sentence may be manifestly excessive or manifestly inadequate by reason of the mode by which it is to be served - in full-time custody, or by way of one of the more lenient alternatives (periodic detention, home detention or on suspension); it may be manifestly excessive or manifestly inadequate by reason of the term of the sentence: Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [6]. It may, of course, be manifestly excessive or manifestly inadequate for both reasons, or because the two in combination produce an unacceptable result. A sentence that is within the reasonably available range may be made manifestly inadequate because ordered to be served way of periodic detention (Sentencing Procedure Act s 6), home detention (Sentencing Procedure Act s 7), or by reason of being wholly suspended (Sentencing Procedure Act s 12). 65 Although the question never arose during the course of argument, and it would therefore be unfair to be unduly critical of the Crown, it seems to me that it is necessary, when appealing against a sentence to be served other than by way of full-time custody, that the Crown identify with more particularity than it has in the present case, the basis upon which it is said to be manifestly inadequate. In R v Thai [2009] NSWCCA 314 at [50] - [54] I expressed the view that, when the sentence against which the Crown appeals is one ordered to be served by way of periodic detention, the primary focus of this Court, in determining whether the sentence is manifestly inadequate, is upon the length of the sentence, and not the order that it be served by way of periodic detention. That is because the sentencing court is required, before considering periodic detention, to determine, and to impose, the sentence: it is only after the proper sentence has been imposed that it may be ameliorated by an order under s 6 of the Sentencing Procedure Act that it be served by way of periodic detention. The language of s 6(1) ("a court that has sentenced an offender to imprisonment for not more than 3 years may make a periodic detention order …" - italics added) supports that view; authority (R v Wegener [1999] NSWCCA 405 at [23]; R v Zamagias [2002] NSWCCA 17 at [26]; Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154; Reed v R [2007] NSWCCA 4 at [25]) supports that view; and the fact that a periodic detention order may be revoked by the Parole Authority (not by a court), as a consequence of which the offender will be required to serve the balance of the sentence in full-time custody (Crimes (Administration of Sentences) Act 1999, ss 163, 164 - the same applies in relation to a sentence to be served by way of home detention (Administration of Sentences Act, ss 167, 168)), supports that view. A sentence must not, therefore, be extended by reason that it is to be served by way of periodic detention (see the cases cited above). The same, it appears to me, applies in relation to sentences to be served by way of home detention under s 7 of the Sentencing Procedure Act. In Thai I expressed, and I adhere to, the view that the same reasoning dictates that this Court approach a Crown appeal of a sentence to be served by way of periodic detention in the same way - that is, by first considering the length of the sentence imposed without regard to the order that it be served by way of periodic detention. 66 In Thai McClellan CJ at CL took a different view: see [6]. Hidden J found it unnecessary to decide. 67 The same line of reasoning applies to sentences that are suspended. So much has been held in Zamagias. A bond imposed under s 12(1)(b) may be revoked by a court (not the Parole Authority) for failure to comply with any of its conditions: Sentencing Procedure Act, s 98. Where that happens, the court is obliged to restructure the sentence into a non-parole period and a balance of term (or give reasons for not doing so). That carries the implication that a judge who is contemplating suspending a sentence needs to bear in mind that the sentence imposed - before suspension - ought to reflect an appropriate head sentence for the offence. 68 It is convenient here to set out the terms of s 12(1) of the Sentencing Procedure Act. It provides: "12(1) A court that imposes a sentence of imprisonment on an offender (being a sentence for a term of not more than 2 years) may make an order: (a) suspending execution of the whole of the sentence for such period (not exceeding the term of the sentence) as the court may specify in the order, and (b) directing that the offender be released from custody on condition that the offender enters into a good behaviour bond for a term not exceeding the term of the sentence." 69 In this case, it is not clear to me that the term of 2 years was manifestly inadequate. In this regard, the sentence imposed on Wanna is relevant, even on the basis that the respondent's role involved him at a more organisational level. However, but for the long delay in bringing the respondent to sentence, together with his established rehabilitation, I would have no doubt that the order that the sentence be suspended was erroneous, and rendered the sentence imposed manifestly inadequate. Except for those circumstances, nothing other than a sentence of full-time custody was adequate to recognise: o the objective gravity of the substantive offence; o the Form 1 offences; o the respondent's record of offences of like nature on two previous occasions; o the respondent's criminal history otherwise; o that the respondent was on a bond at the time; o that, on two previous occasions, when the respondent had been granted significant indulgences (a home detention order, and parole) he abused the privilege and was returned to custody. 70 Even taking into account the two highly favourable features - delay and rehabilitation - it is difficult to conclude other than that the respondent should have been sentenced to a period of full-time custody. 71 Having regard to the view to which I have ultimately come as to the proper disposition of this appeal, it is unnecessary to reach a final view about manifest inadequacy. 72 Regrettably, the Court does not have available to it any information about the previous two occasions on which the respondent had committed offences of a similar kind to those now under consideration. His record certainly does nothing to assist him. He has repeatedly been given the benefit of lenient, non-custodial sentences, and has repeatedly abused the privilege. 73 One of these (delay) is of dubious validity, because it was, in some measure, brought about because of the respondent's persistence, until the very last minute, in going to trial. Even so, however, one would not expect 2½ years to elapse before a date was fixed for trial. And the evidence showed that he used the time productively, in establishing his catering business, giving up gambling, and in bringing his personal life in to order, such that a finding that he was unlikely to offend could reasonably be made. 74 Against the possibility of a conclusion that the sentence was manifestly inadequate, the Court was provided with an affidavit affirmed by the respondent on 5 February 2010. He gave a history of having reported to the Probation and Parole Service. His marriage to Ms Liu has taken place, but he has been unable, by reason of bail conditions, to travel to China to meet his fiancée's family. Following sentence, arrangements were made to travel to China, with his parents, for the purpose of marrying there. 75 Arrangements were made for the marriage to take place in NSW. However, shortly before that occurred, his mother was diagnosed as suffering from multiple myeloma. The travel to China was abandoned. 76 The respondent's business has continued to grow. The respondent is working about 80 to 90 hours per week in the business. 77 All of this was put on the basis that this Court, even if having found manifest inadequacy, retains a discretion to decline to intervene. 78 And there is another factor. The respondent was sentenced on 14 August 2009. The Crown appeal was filed and served reasonably promptly (17 September and 20 September respectively). Ordinarily, such an appeal would be brought on for hearing with expedition. But, in this case (as in many others) additional delay was brought about by reason of the introduction into the Crimes (Appeal and Review) Act 2001 of s 68A, effective from 24 September 2009 and made retrospective to extend to appeals commenced but not finally determined as at that date (including this appeal). Section 68A significantly varied the manner in which this Court is to deal with Crown appeals against sentence. The extent of that variation was initially uncertain. It was resolved by the decision of this Court, sitting as a bench of five, in R v JW [2010] NSWCCA 49, delivered on 22 March 2010. The hearing of many Crown appeals, or delivering of judgment in those that were heard (of which this was one) was delayed pending guidance as to the proper interpretation of s 68A. The end result of that has been to impose yet further delay in the resolution of this appeal. It is now 3½ years since the respondent's offences: he has turned that time to advantage, and demonstrated that his rehabilitation is complete. 79 An additional affidavit affirmed by the respondent on 26 March, was received. This reveals that the condition of his mother has deteriorated, and that his wife is pregnant. 80 One of the things that was decided in JW was that the discretion that this Court has always had to decline to intervene in a sentence that is shown to be manifestly inadequate continues to exist, although it may not be exercised on the basis of the distress or anxiety to which all respondents to Crown appeals are presumed to be subject (shortly known as double jeopardy). It may, however, be exercised on grounds that do not fall within that description. 81 I have concluded that grounds for the exercise of the discretion here exist. They are essentially the same grounds as moved the sentencing judge to suspend the sentence - but they are now made manifestly stronger by the additional delay, in combination with the respondent's demonstrated rehabilitation. Even if the sentence initially imposed was manifestly inadequate by reason of the suspension, I would, in the exercise of this Court's discretion, dismiss the Crown appeal. 82 The Court has also received additional submissions from the Crown. These do not persuade me that the course I propose ought not to be followed. 83 I propose the following order:

(i) Crown appeal dismissed. 84 R A HULME J: Subject to what immediately follows I agree with the judgment of Simpson J.

85 I agree with what her Honour has said in the first sentence of paragraph 65 of her judgment. However I am unable to agree with what then follows in relation to the point she raised in R v Thai, supra. The matter was of some controversy in that case. It is not a matter that needs to be determined for the resolution of the present case and was not the subject of submissions. Accordingly I refrain from expressing a view about it.

86 There is also an observation that I wish to make. The sentence of imprisonment for a term of 2 years that was imposed by North DCJ was lenient but it was made inadequate by the order that its execution be suspended. That order could only have been made if the judge first determined that there should be a sentence of imprisonment for a term of not more than 2 years (s 12(1) Crimes (Sentencing Procedure) Act 1999). North DCJ arrived at the sentence of 2 years after having said that he would, "discount … the offender's sentence otherwise to be imposed by ten percent because of the plea (of guilty)". His Honour did not explain in his sentencing remarks what sentence he would otherwise have imposed. Mathematically, it must have been one of 2 years 2 months and some 20 days. Perhaps he had in mind a sentence of 2 years 3 months and there was some rounding down. Both seem to be curious starting points.

87 One of the purposes for which a range of "discount" for the utilitarian value of pleas of guilty was identified in R v Thomson & Houlton [2000] NSWCCA 309, 49 NSWLR 383 was to improve the transparency of the process: per Spigelman CJ at [162]. To my mind, to indicate that a certain "discount" will be allowed and then to impose a sentence that leaves considerable doubt as to whether the sentence has been so reduced does nothing to foster the transparency of which the Chief Justice spoke. An offender, the community and an appellate court are left to speculate as to whether the sentence was reduced and, if so, whether it was to the extent indicated.

88 Where a judge announces that he or she intends to allow a percentage reduction for the utilitarian value of a plea of guilty and subsequently imposes a sentence that is the most that can be the subject of an order suspending the sentence (2 years), or the subject of an order that the sentence be served by way of periodic or home detention (3 years or 18 months (ss 6(1) and 7(1) Crimes (Sentencing Procedure) Act) respectively), and it appears that the starting point is, as in the present case, a most unlikely one, again, the offender, the community and an appellate court are left to wonder whether there has in fact been a reduction of the sentence in the specified terms or whether the sentencer has simply selected a sentence that fits within the prescribed maximum limit for a sentence to be suspended or served in an alternative way. **********

21/04/2010 - typographical error - Paragraph(s) 88 23/04/2010 - Correct error - the word "maximum" substitued for "minimum" - Paragraph(s) 6

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.