Crown Appeal - Principles
47 First it can be said that the normal restriction upon appellate review of the exercise of a discretion (House v The King (1936) 55 CLR 499 at 505) applies to Crown appeals against sentence; Dinsdale v The Queen (2000) 74 ALJR 1538. The Court of Criminal of Appeal must recognise the importance of the discretion exercised by the Sentencing Judge and cannot merely substitute its own opinion as to the appropriate sentence for that of the sentencing judge: Lowndes v The Queen (1999) 195 CLR 665 at 671; the Court will only intervene where error is shown (R v Tait (1979) 46 FLR 386 at 388). Appeals by the Crown should be rare; Malvaso v The Queen (1989) 168 CLR 227 at 234 and unless there is a patent error of principle identified, it would be exceptional for the Court to interfere: Regina v Baker [2000] NSWCCA 85 per Spigelman CJ at para 19.
48 An appeal by the Crown against sentence is concerned with establishing matters of principle, for the "governance and guidance of Courts having the duty of sentencing convicted persons": Griffiths v The Queen (1977) 137 CLR 293 per Barwick CJ at 310, this power extends to doing what is necessary to avoid manifest inadequacy or inconsistency in sentencing; Everett v The Queen (1994) 181 CLR 295 at 299. The Court of Criminal Appeal has a discretion to refuse to intervene even if error has been shown and should have regard to the double jeopardy that a convicted person faces as a result of the Crown appeal: Queen v Alpass (1993) 72 A Crim R 561 - the relevant principles are set out in the judgment of the Court at 562-3. A sentence imposed by the Court of Criminal Appeal as the consequence of a successful Crown appeal will generally be less than that which should have been imposed by the Sentencing Judge and will generally be towards the lower end of the appropriate range of sentence (R v Holder & Johnston (1983) 3 NSWLR 245 at 256; Bynsdale (supra) at para 62).
49 Finally, in the context of this being a Commonwealth appeal, I would add what was stated by Gaudron, Gummow and Hayne JJ in Wong v The Queen [2001] HCA 64, 15 November 2001 as to the requirement that effect be given to Pt 1B of the Crimes Act (Cth.). Their Honours said:
"71. The sentencer must, therefore, "impose a sentence or make an order that is of a severity appropriate in all the circumstances of the offence": s 16A (1). Standing alone, the reference to imposing "a sentence ... of a severity appropriate in all the circumstances of the offence" might be read as directing the sentencing judge to determine a sentence proportionate to the wrong-doing without regard to considerations of rehabilitation or incapacitation of the offender or the offender's prior criminal history. But s 16A (1) does not stand alone. To the extent that the matters identified in s 16A (2) are relevant and known to the Court, the sentencer must take those into account. This group of matters is very diverse. It includes not only "the nature and circumstances of the offence" but also matters such as the degree to which the offender has shown contrition, the offender's "character, antecedents, cultural background, age, means and physical or mental condition" and "the need to ensure that the person is adequately punished for the offence". What is notably absent from s 16A is any guidance about the accommodation that is to be made between these various factors or between these factors and the general requirement that the sentence be of a severity appropriate in all the circumstances of the offence".
50 Their Honours have succinctly stated the obligations of the sentencing judge in relation to Commonwealth offences and thus have usefully provided a backdrop, as-it-were, for an appellate Court considering a sentence for a Commonwealth offence against the inadequacy of which the Crown appeals.
51 As the Crown pointed out the Sentencing Judge "became keenly aware" of the strength of the Crown case when evidence was called because of a dispute by the respondent of certain of the facts. Messrs Beeforth and Charadia gave evidence on oath adhering to their statements in the Crown brief and the involvement of the respondent in the offences. I hasten to add that the respondent, having pleaded guilty, was perfectly entitled to contest issues of fact relevant to the determination of the extent of liability and thus sentence and was not, thereby to be taken as to be amenable to any greater sentence. His Honour did not purport to go down that path.
52 From the Remarks on Sentence and Reasons for Sentence his Honour referred to a number of matters. As to the objective criminality, he found that the forging of bank notes is an extremely grave offence and that the respondent was a principal and driving force in the two schemes with which his Honour was concerned and was "pivotal" to their successful implementation; he recruited others and was involved in financing both operations. Beeforth and Charadia were less culpable than the respondent.
53 As to subjective matters his Honour noted the respondent's criminal history involving as it did convictions for dishonesty offences, drug offences, assault and hinder investigation dating back to 1980. There was before his Honour a Pre-Sentence Report noting drug problems and what is described as disregard for authority by the respondent since his mid-teens despite an apparently stable upbringing.
54 His Honour found that the pleas of guilty were an expression of remorse and contrition although in the face of an extremely strong Crown case.
55 As to the respondent's medical condition (sarcoidosis) his Honour found that it would require ongoing medical treatment, it was currently under control and significantly that the prison medical authorities would be able to look after the respondent (notwithstanding some reference to a possibility of a need for a lung transplant). Indeed, his Honour found the respondent's state of health did not place him under a greater burden by reason of custody.
56 In the course of his Reasons and Remarks on Sentence his Honour made express reference to Rohde's case and in the context of the respondent's health to The Queen v Smith (1987) 44 SASR 458 and King CJ's well known statements in relation to the part to be played by the state of the offender's health.
57 In relation to the plea, his Honour expressly noted that the delay in the sentencing process was in the main caused by the respondent himself. His Honour considered the provisions of s 16A of the Crimes Act 1914 (Cth.) and in particular, general and specific deterrence. Further, in addition to the attention his Honour paid to the provisions of Pt 1B of the Crimes Act 1914, his Honour noted especially s 16G namely, the non-availability of remissions upon a sentence to be served in New South Wales.
58 His Honour had before him written submissions for the Crown that conform essentially with the submissions underlying its appeal. Those submissions contained an analysis of Rohde's case and a summary of five sentences imposed in the District Court of New South Wales over the period September 1993 to September 1994 in counterfeiting cases involving a variety of facts and thus, a variety of outcomes.
59 It is the Crown's expressly stated position that although no specific error can be demonstrated on the face of his Honour's reasons the sentences are manifestly inadequate given the seriousness of the offences and the range of sentences said to have been demonstrated in less serious cases involving offences under this legislation. The Crown points to three matters in support of its case that, error not having otherwise been disclosed, the sentences nonetheless are manifestly inadequate.
60 The first is the deterrence factor. The Crown submits that in this case high sentences were called for because of the type of offences and the major role played by the offender. His Honour erred, it is said, in fixing sentences that in effect resulted in imprisonment for a maximum period of 6 years with a non-parole period of 4 years 6 months (after the s 16G allowance). This is especially clear, it is submitted, given his Honour's identification of the level of the respondent's criminality as the "driving force" and being "pivotal" to the two schemes, the operation of which were brought to an end only by the intervention of the authorities. It is said that given the respondent's persistent ongoing criminality and his continued involvement of others in the schemes the sentences were not adequate particularly, it is said, in the light of the need to deter others from similar activity. With the availability of co-offenders to give evidence against him, the strength of the Crown case was extremely high. The sentences, in all the circumstances, are submitted to be "far too lenient".
61 The Crown in its written submissions advanced the proposition that in relation to counts 10 and 12 (knowingly concerned in the making of a counterfeit currency) being the essence of the two schemes should have attracted "cumulative sentences" with an appropriate non-parole period. This was not raised in the sentencing proceeding before his Honour and leaving everything else aside I would consider it inappropriate, upon coming to a conclusion that there was a need for intervention, that that structure of sentencing be imposed.
62 When one considers the material before his Honour and especially his Honour's noting every single factor to which the Crown refers and taking into account his Honour's experience which must be respected in these matters, on its face, by itself in relation to this head, the Crown submissions, in my view, cannot succeed.
63 The second basis of attack is in relation to the pleas of guilty. It is said that too much of a discount appears to have been given by the learned Sentencing Judge. There is no question that his Honour acknowledged the strength of the Crown case and indeed, upon reading the Reasons for and Remarks on Sentence there is no question that his Honour was sensible of the respondent's role in the delay of the disposition of the pleas.
64 Whilst the decision of this Court in Regina v Thompson & Coulton [2000] 115 A Crim R 105 points to the non-application of those principles to Commonwealth offences in the context of those appeals (p 130) the principles articulated can be used as a guide. Indeed, in The Queen v Bugeja [2001] NSWCCA 196 at para 24 it was held that the same discount should apply to Commonwealth matters. Insofar as the Crown alleges that the dispute by the respondent of the Crown facts resulted in the expense of calling witnesses in some cases from custody, which dispute was ultimately resolved in the Crown's favour, as a relevant factor in determining the weight to be given to the plea, as I have already remarked, it would be inappropriate to penalise the respondent in the context of the weight to be given to his plea by reference to his testing of certain factual aspects of the Crown case. It is a matter that deprives him of otherwise available components in mitigation.
65 Again, upon consideration of this discrete ground of the Crown's complaint, it cannot, in my view, be said upon a reading of the Remarks on Sentence that his Honour did not take into account every single factor to which the Crown refers.
66 The final matter relates to the consideration of the respondent's health. It is contended for the Crown that the accepted ill-health of the respondent was not a factor that should have resulted in any significant discount in the sentences. It is argued that the respondent's medical condition was a subjective feature in his favour but that the Sentencing Judge was bound to strike a balance between that factor and the very serious nature of the offence. It is, of course, well established that a respondent's psychological and medical condition may increase the hardship of a sentence and may therefore be taken into account in deciding what sentence is appropriate; that consideration is limited by the necessity of maintaining proper standards of punishment (Regina v Hart [1999] NSWCCA 204). Again, his Honour made express reference to these considerations and indeed, to the role of the prison authorities in the management of the respondent's medical condition (see Regina v Vachalec (1981) 1 NSWLR 351).
67 It is desirable at this point to set out two further passages from the judgment of Gaudron, Gummow and Hayne JJ in Wong:
"54. … it is evident in cases like House v The King and the discussion of when an appellate court may conclude that a trial judge's exercise of discretion has miscarried. Reference is made in House to two kinds of error. First, there are cases of specific error of principle. Secondly, there is the residuary category of error which, in the field of sentencing appeals, is usually described as manifest excess or manifest inadequacy. In this second kind of case appellate intervention is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases. Intervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons …"
68 As to the approach generally to the sentencing exercise, their Honours said:
"75. It [the 'two stage approach to sentencing'] departs from principle because it does not take account of the fact that there are many conflicting and contradictory elements which bear upon sentencing an offender. Attributing a particular weight to some factors, while leaving the significance of all other factors substantially unaltered, may be quite wrong. We say "may be" quite wrong because the task of the sentencer is to take account of all of the relevant factors and to arrive at a single result which takes due account of them all. That is what is meant by saying that the task is to arrive at an "instinctive synthesis". This expression is used, not as might be supposed, to cloak the task of the sentencer in some mystery, but to make plain that the sentencer is called on to reach a single sentence which, in the case of an offence like the one now under discussion, balances many different and conflicting features".
69 For myself, I can state my view that I would not have imposed the sentences which his Honour did. I am of the view that the sentences fairly can be characterised as lenient. This however is not the test. Upon my consideration of the material before his Honour and especially upon my consideration of his Honour's Reasons for and Remarks on Sentence, whilst I am of the view that the sentences are lenient, I am unable to infer that in some way there has been a failure on the part of his Honour properly to exercise the discretion which the law reposed in him. I am not persuaded a substantial wrong has in fact occurred notwithstanding the view I have otherwise formed that my conclusion would have been different. I am not persuaded that the nature of the sentences individually in relation to each count and in their totality when considered in relation to the offences and the circumstances addressed by his Honour were such as to afford convincing evidence that in some way the exercise by the learned Sentencing Judge of his discretion has been unsound or otherwise miscarried.
70 When one considers the statements of principle extracted from Wong above and places against them his Honour's sentencing exercise, I can come to no conclusion other than that this is not a case, on a principled basis, for this Court's intervention.
71 As I trust I have made clear, the offences to which the respondent pleaded guilty and was sentenced are unusual but serious in their criminality for the reasons, for example, expressed by Brooking J in Rohde. In the context of all the matters the Sentencing Judge must take into account it has to be stated in relation to this offence that deterrence is of particular significance; it can be stated that a custodial sentence would be applicable otherwise than in the most exceptional circumstances. I am of the view that the sentences in the District Court in the series of cases to which the learned Sentencing Judge was referred, as was this Court, cannot provide any "range" or "tariff" and that offences under the Currency Act are peculiarly ones which will require attention to the specific circumstances in a given case taking into account, as I have stressed, the gravity of the crime.
72 Thus, I am of the view that the Crown appeal cannot succeed.
73 The respondent sought leave to appeal against the severity of the sentences imposed. In this component of the appeal he appeared in person (he was represented only in relation to the Crown appeal).
74 Essentially, Mr Institoris complained of his custodial conditions given his medical condition. I certainly attended to what Mr Institoris said and noted the contents of affidavits sworn 4 October 2001 and the accompanying documentation. Nothing that the respondent to the Crown appeal said has persuaded me that his Honour's sentence was manifestly excessive, that there was any error or that there has occurred any event that warrants intervention after the date of its imposition.
75 Accordingly, I propose the following orders: