R v Keong

IN THE COURT OF CRIMINAL APPEAL 60114/2001 GROVE J HOWIE J 12 October 2001 R v BENNY KEONG

Judgment 1 Howie J: The applicant pleaded guilty before a magistrate to a number of offences of obtaining a benefit by deception contrary to s 178BA of the Crimes Act and using a false instrument contrary to s 300(2) of that Act. He was committed for sentence to the District Court under the provisions of s 51A of the Justices Act. He adhered to his pleas of guilty before Judge Shillington and asked his Honour to take into account two offences of goods in custody on a Form 1. As a consequence he was sentenced to an overall sentence of 4 years imprisonment with a non-parole period of 3 years. The applicant will be eligible to be released to parole on 28 February 2003. He seeks leave to appeal against that sentence. 2 The applicant was before the court on six counts relating to the obtaining of about $138,000 and two offences involving fraudulent cheques. The maximum penalty for an offence under s 178BA is five years imprisonment and, for an offence under s 300(2), 10 years imprisonment. The offences all occurred between 7 December and 21 December 1999. Over that period the applicant was party to a scheme of banking stolen cheques by using false identities and then withdrawing the funds. The scheme was relatively sophisticated using a number of accounts at various banks. Some of the cheques used were from a quantity stolen with a face value of over one million dollars. Other cheques have been traced to accounts of persons having connections with the applicant. Police have located 13 accounts in the name of the applicant at various banks. 3 The applicant was arrested on 29 February 2000 when he was seen acting suspiciously in relation to the handling by him of a large amount of money. When he was searched police found over $2,000, two bankcards and a list of names with account and PIN numbers. A co-offender arrested at the same time was in possession of five lists of names with account and PIN numbers. After his arrest on 29 February 2000 the applicant was found to have in his room a number of ATM cards in various names with supporting documents and cheques books in his name. The finding of these cards gave rise to the charges on the Form 1. Although the applicant voluntarily allowed the police to search his room, he declined to answer any questions about the items found. 4 The applicant is aged 35 and arrived in Australia in October 1999 on a tourist visa. He gave evidence before the sentencing judge that he had come to look for work through an employment agency in Malaysia. He hoped to secure employment in restaurants or as a painter. He said that he borrowed $10,000 to finance his trip. He was given a telephone number of a person to contact in Australia by the agency. His evidence was that when he arrived at the airport he was met by a person named Hong who helped him find work for three or four weeks. This person then supplied him with the cheques and the bankcards found in his possession. The applicant told the sentencing judge that he had given all the money he had obtained from his illegal activity to Hong and received about $5000 in return. The applicant explained that he had transferred $12,000 to Malaysia since his arrival to repay a loan using money that he had been given by Hong, some that he earned and some that he had brought with him to Australia. When asked why he committed the offences he said, "Its probably out of greed of the moment". 5 The applicant gave evidence that he was born in Malaysia where he had worked as a drummer and an electrician, although he had no qualifications. He said that he had no criminal record in Malaysia. His parents were living in Malaysia and he contacted them by telephone every week. He does not speak English, had few friends in the prison and had received no visitors while on remand. He told the sentencing judge that he regretted what he had done. 6 Judge Shillington was justifiably sceptical about the evidence given by the applicant particularly as he could not recall the name of the person who had employed him as a painter. His Honour indicated that he had difficulty accepting this account that was unsupported by any objective evidence. If I were required to re-sentence the applicant, I would not accept it. In any event there is little mitigation in the fact that the applicant may not have been the principal behind this scheme when his own criminal activity was very significant and serious. Once again it needs to be pointed out that a person is punished primarily for what he does and not simply by some reference to his position in an organisational hierarchy that may or may not exist. 7 On this appeal it has been submitted that his Honour erred in the following ways: he failed to give sufficient weight to the fact that the applicant pleaded guilty; he took into account that the applicant would be deported at the conclusion of his sentence; he failed to find special circumstances and the overall sentence was manifestly excessive. 8 His Honour mentioned at the outset of his remarks that the applicant pleaded guilty before a magistrate. However, he said no more about that matter. He did not, for example, indicate that he was giving the applicant a discount for the utilitarian benefit of the pleas or what the quantum of that discount was to be. It would have been preferable if his Honour had done so, if for no other reason than to make the fact that a discount had been granted transparent to the applicant and others. However, the sentencing judge is one of the most senior and experienced judges sitting in the District Court's criminal jurisdiction. The prosecution had conceded before his Honour that the applicant pleaded guilty at the earliest opportunity. His Honour would have understood the relevance of that concession. I find it difficult to act on the basis that his Honour would have disregarded or overlooked such a matter having clearly mentioned the fact that the applicant pleaded guilty before a magistrate at the outset of his remarks. The question whether any, or a sufficient, discount was in fact given will depend largely upon an assessment of the sentence imposed, a matter to which I will return shortly. 9 The next complaint is that his Honour took into account the fact that the applicant was liable to be deported at the conclusion of his non-parole period. There is no question that the likelihood or otherwise of deportation is irrelevant to the determination of the appropriate sentence to impose upon an offender. It is an administrative matter over which the court has no influence nor control, and therefore, should be disregarded. However, that is not to say that the complaint is made out in this case. During his remarks and while obviously referring to submissions that had been made on the applicant's behalf, Judge Shillington said, "I accept that the realistic situation is that he will be deported upon the expiry of a non-parole period". Although there is little doubt that this statement was correct, it would have been better had it not been said. It simply gives rise to the question of what, if any, role that matter played in his Honour's determination of the sentence to be imposed upon the applicant. 10 However, it does not necessarily follow that it should be concluded that his Honour took the matter into account. It is not the situation that was before the Court in R v Jap (NSWCCA, unreported, 20 July 1998) an authority relied upon by the applicant. Again, whether his Honour took the matter into account and what bearing it had upon his sentence should become clear from a consideration of the sentence imposed. If his Honour did take that matter into account then it would be found principally in a consideration of the non-parole period specified and whether his Honour was justified in finding, as he did, that there were no special circumstances. 11 However, before considering the issue of special circumstances and the length of the non-parole period specified, I turn to the total sentence imposed. It is submitted that the sentence is too severe, having regard to the applicant's role in the offences, his pleas and assistance to police, his lack of criminal record and the onerous gaol conditions to which the applicant will be subjected. The last matter is a reference to the fact that the applicant could not speak English and had few friends and no visitors while in custody. However, this was a matter expressly taken into account by his Honour but in my view it carries little or no weight. Even assuming that the applicant did not come to this country to commit crime, although that was an inference which was well open on the material, he voluntarily and very significantly became involved in serious criminal conduct such that he must have known that if he were caught he would go to gaol for a lengthy period. I fail to see why he should then receive any significant leniency on the basis that gaol will be harsher for him because he committed crimes in this country which he visited, notionally at least, as a visitor. 12 As I have already indicated, I see no significant mitigation in the present case in the fact that the applicant asserts he was merely doing the bidding of others. His criminality itself was substantial and warranted a severe gaol sentence. Despite a submission to the contrary, made in written submissions, the sentence imposed upon the applicant still leaves plenty of room for a court to impose an appropriate sentence on any other person who might be considered to be more seriously involved in the activity than the applicant, such as Hong. General deterrence was a very important consideration and there is no reason why that matter should not be fully reflected in the sentence imposed upon the applicant notwithstanding his earlier good character. 13 Provided that his Honour gave a sufficient discount for the pleas of guilty, there was little further mitigation to be derived from the fact that the applicant allowed the police to search his room or stated during the sentencing hearing that he then regretted his criminal activity. If his Honour had given a discount of 20 per cent for the pleas, which would have been appropriate, the applicant would have received a sentence of five years but for the discount. As his Honour imposed the identical sentence on each count, this would have meant that the maximum sentence was imposed for each of the s 178BA offences. His Honour ought not to have imposed such a sentence for those counts because they did not justify the maximum penalty. But the overall sentence of four years is in my view appropriate for the total criminality involved in these matters. If there is an error, it is merely one in the structure of the sentences and does not indicate that the sentence is excessive overall. Nor, in the circumstances of this case, does it require this Court to intervene to correct the error. 14 His Honour found that there were no special circumstances despite the fact that the applicant had no prior criminal record. But the applicant was a mature man of 34 years of age when he committed the offences. He said himself that the reason he participated in the criminal activity was greed. Clearly, if he wishes to do so, he has the ability to live as a law-abiding citizen. There was no particular purpose to be achieved by a longer period on parole than otherwise would result from the application of s 44 of the Crimes (Sentencing Procedure) Act. Nor in my view was there anything that required a lesser period in custody by way of a reduction in the non-parole period. 15 His Honour's determination that there were no special circumstances was a finding of fact. However, this is a matter that seems to be treated as a question of law by appellate lawyers. In many cases, as in the present, counsel for the applicant puts before the Court other cases, often judgments of this Court comprising two persons, where findings of special circumstances have been made sometimes in factual situations similar to that before the Court. The fact that another court has found special circumstances in a somewhat similar situation is no more persuasive that there has been an error by the sentencing judge, than is the fact that another court has imposed a different sentence on another offender for a similar offence. They are simply different results arising from different discretionary judgments. This Court is no more entitled to interfere in a finding that there are no special circumstances than in any other finding of fact made by the sentencing judge. If it was open for the judge to come to that finding on the material before the court, it is a fruitless exercise to try to persuade this Court simply to reach a different finding. 16 I can see no reason for this Court to overturn his Honour's finding in this case. I do not intend to express my views upon what matters should or should not give rise to special circumstances. It is sufficient to indicate that, in my view, simply because a person finds himself in a difficulty custodial regime for the first time at the age of 35 does not require that special circumstances be found. Whether or not those matters might justify such a finding is not to the point and does not have to be determined by this Court. Nor do I find that there is anything said by the members of the Court in R v Hameed [2001] NSWCCA 287 that requires that I reach any different view. In that case Sperling J identified that there have been different approaches to the finding of special circumstances, but that is a matter that will be resolved shortly by a bench of five justices of this Court. 17 I am of the view that the application for leave to appeal should be granted but the appeal should be dismissed. 18 Grove J: I agree. The orders of the Court will be as proposed by Howie J.

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