Regina v Kym [2002] NSWCCA 235 | Case summary

Friday, 10 May 2002 REGINA v Peter KYM Judgment 1 NEWMAN AJ: I agree with the reasons of the order proposed by my brother Carruthers AJ. In my view in determining the question of whether or not this Court should grant an extension of time to appeal, that the merits of the appeal itself would not cause this Court to intervene. 2 Accordingly, I join with my brother. The order of the Court will be as proposed by Carruthers AJ. 3 CARRUTHERS AJ: It is necessary to commence this judgment by reference to the factual background. On 25 May 2000, the applicant, Peter Kym, was sentenced by her Honour Karpin DCJ to two years periodic detention in relation to one count of using a false instrument pursuant to s 300(2) of the Crimes Act 1900. This offence carries a maximum penalty of ten years imprisonment. The applicant's periodic detention order was revoked on 6 September 2000, as he failed to comply with its terms, and the sentence was converted by the Parole Board pursuant to s 163(2)(a) of the Crimes (Administration of Sentences) Act 1999, to one of a fixed term of imprisonment of two years and one month commencing on 8 May 2001, and expiring on 7 June 2003. The additional term of one months imprisonment was imposed because the applicant failed to attend in accordance with the requirements of the periodic detention order on a net four occasions: see Crimes (Administration of Sentences) Act 1999, ss 81(a), 83(1)(a). 4 The application for leave to appeal is dated 4 December 2001. It seeks an extension of time in which to appeal from the sentence imposed by Judge Karpin on 25 May 2000. There is reference in the application for leave to appeal to delays occasioned by the necessity to have the matter dealt with by the Legal Aid Commission. When the Court assembled this morning, the Bench raised with Mr Craigie of senior counsel who appears for the applicant, and Mr Barrett of counsel who appears for the Crown, the question whether this Court has jurisdiction to determine this matter. The specific question arose whether the original order by Judge Karpin was subsumed in the revocation order made by the Parole Board, and accordingly no longer in force. 5 It is to be noted that the jurisdiction of this Court to deal with a challenge to an order of revocation made by the Parole Board is very restricted indeed. The jurisdiction is to be found in s 176 of the Crimes (Administration of Sentences) Act 1999, and relevantly provide that where the Parole Board revokes a periodic detention order and the offender, to whom the periodic detention order relates, alleges the order has been revoked on the basis of false, misleading or irrelevant information, the offender may, in accordance with the rules of court, apply to this Court for a direction to be given to the Parole Board as to whether the information was false, misleading or irrelevant. No such application has been made to this Court and it has not been suggested by counsel for the applicant that there is any basis for such an application to be made. Subsection (2) of s 176 provides that this Court may give such directions with respect to the information as it thinks fit and under subs (3), an application under this section is to be considered if, and only if, it is satisfied that the application is not an abuse of process and there appears to be sufficient evidence to support the application. Of course this Court, sitting as a two-judge bench, would not consider it appropriate to deal with the question of law involved so far as jurisdiction is concerned. It is a matter that could only appropriately be resolved by a three-judge bench. 6 After some discussion, both Mr Craigie and Mr Barrett agreed that an appropriate course would be for this Court to determine first, whether there was any justification for an extension of time in which to allow the application for leave to appeal, and if that application were granted, whether there was any apparent substance in the merits of the appeal. If these matters were resolved in favour of the applicant, the application could then be referred to a three-judge Bench. 7 The applicant was born on 14 February 1970 in Vietnam to Korean and Vietnamese parents. The family moved to Korea in 1975 and then migrated to Australia in 1977. Her Honour considered that he came from a strong family unit with a good work ethic. He had always lived at home with his parents and retained their support. He was a good student and obtained above average results in the Higher School Certificate. For three years after leaving school he travelled around Australia working in the hospitality industry. Thereafter he worked for his father, a tiler by trade, whilst attending TAFE to study accountancy, a course which he did not complete. He spent some time working with financial consultancy firms and was self-employed when the subject offence was committed. 8 Her Honour summarised the relevant facts as follows: "The prisoner conducted his own business. On 30 May 1998 the prisoner contacted a person engaged in the finance investments field with whom he had previous financial dealings over the preceding two years. The prisoner indicated that he had a client who wished to invest one million dollars. Over the ensuing months the potential investment was discussed between the prisoner and the adviser. On 1 July 1998 the prisoner telephoned the financial adviser to say that he had the cheque. They arranged to meet at a Parramatta hotel where the prisoner handed over a bank cheque in the sum of one million dollars in favour of the financial investor's employer company. On inspecting the cheque the investor noted that the name of the payee was incorrect and that the cheque bore the date 1 July 1998, that being the day upon which they met although it was then only 9.30 am. Since the investor was familiar with bank practices his suspicions were aroused because he thought it highly unlikely the bank would have issued the cheque on that day. Accordingly, he made certain inquiries and then attended a branch of the Westpac bank, that being the bank upon which the cheque was ostensibly drawn. Inquiries with the bank revealed that the cheque was a forgery. Police were advised of the situation. The prisoner was not advised. Some days later the prisoner contacted the financial adviser informing him that his client now wanted five hundred thousand dollars returned to him in cash which was to be collected by the prisoner. Arrangements were made with the bank and police and on 9 July the prisoner met with the financial adviser to receive five hundred thousand dollars. Whilst talking with the adviser the prisoner was arrested. His vehicle was searched and documents were located which appeared to relate to the one million dollar cheque and to the division of proceeds between the prisoner and four other persons indicated by initial only. The prisoner was apparently to receive fifty thousand dollars. The prisoner was placed under arrest. He sought and obtained legal advice following which he declined to make a statement. He has never provided an account of his participation in this offence, nor has he given any information which would lead to the apprehension of other offenders whilst claiming through his counsel that his role was minor. The prisoner has no relevant criminal record." 9 When sentencing the applicant to imprisonment for two years to be served by way of periodic detention, her Honour said: "I decline to assess a minimum and additional term. The two years will be by way of a fixed term. You are report to the Periodic Detention Centre at Parramatta on Friday evening, 2 June." 10 Her Honour gave no reasons for declining to set a non-parole order. 11 What one immediately notes is that the terminology which her Honour used was appropriate to the Sentencing Act 1988 which at the date of sentence, had been replaced by the Crimes (Sentencing Procedure) Act 1999. The relevant statutory regime under which her Honour was in fact dealing with the applicant is to be found in s 6 of that Act, which relevantly provides that where a court has sentenced an offender to imprisonment for not more than two years, the court may make a periodic detention order directing that the sentence be served by way of periodic detention. One then turns to s 44(1) of the Act which provides that when sentencing an offender to imprisonment for an offence, the court is required firstly, to set the term of the sentence, and secondly, to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence). 12 Section 45(1) of the Act (which is a cognate provision to s 44) provides that a court may decline to set a non-parole period if it appears to the court that it is appropriate to do so. 13 Subsection (2) provides that if a court declines to set a non-parole period, it must make a record of its reasons for doing so. 14 Subsection (4) provides, however, that the failure of a court to comply with the requirements of subs (2) does not invalidate the sentence. 15 Nevertheless the applicant argues that the sentence was "flawed" by her Honour's failure to give reasons for declining to fix a non-parole period. 16 Further, there was no realistic basis for her Honour declining to fix a non-parole period. In those circumstances the ordinary course should have been followed and a non-parole period fixed. 17 The question arises whether her Honour has, by implication, given reasons for declining to fix a non-parole period. Mr Craigie contended, nevertheless, that whether her Honour simply failed to consider the matter or whether she impliedly considered it, she had erred. 18 The reasons for directing that the sentence be served by way of periodic detention may be gleaned from the following passage in her Honour's Remarks on Sentence: "I treat him as having no prior record, having regard to the nature of his prior offence and the age at which it was committed and the fact that he has committed no further offences in the almost two years which have elapsed since he committed this offence." 19 It can also be gleaned from the above quoted remarks and her Honour's earlier reference to the strong family unit of which the applicant was a member, that her Honour formed the view that a parole period was not necessary in the circumstances. The Crown has also pointed out to this Court that the evidence did not justify a finding that the applicant was, in any sense, a recidivist; that he received, generally speaking, a good report from the Probation and Parole Service, and there was no basis upon which her Honour would have been entitled to consider that he was likely to re-offend or that he required counselling. Presumably, it was argued, if the pre-sentence lifestyle of the applicant had continued, he would have returned to the bosom of his family after the sentencing process was complete. 20 Mr Craigie has referred this Court to the report of the Probation and Parole Service under the hand of Ms Tracey Brown dated 6 April 2000. That report provides (inter alia): "Should the court release the offender by way of recognizance, it would assist in casework if the order contained conditions related to: attendance at programmes to deal with personal development; It is requested that such an order contain a proviso to terminate supervision after a successful period of casework intervention." 21 Mr Craigie contends that passage provided justification for her Honour to fix a non-parole period to enable some supervision. That submission overlooks, however, that the comment was made by Ms Brown in the context that the court release the offender by way of recognizance, which, of course, did not occur. 22 Reliance was sought to be placed by Mr Craigie upon the judgment of this Court in R v Wegener [1999] NSWCCA 405. However I agree with Mr Barrett that Wegener can be clearly distinguished from the present case. 23 In the written submissions on behalf of the applicant, a second ground of appeal is relied upon, namely that the sentence was manifestly excessive. Mr Craigie did not develop that submission before the Court. It is, perhaps, appropriate, however, to indicate that I do not disagree with the submission on behalf of the Crown that the sentence actually imposed - allowing for the fact that it was to be served by way of periodic detention for the limited period of two years - must necessarily be looked upon as being towards the bottom end of the range, bearing in mind the serious nature of the offence. It is well established that ordinarily lengthy custodial sentences are to be expected for those guilty of serious white-collar crimes: see R v Halabi, (CCA, 17 February 1992, unreported). Although her Honour did refer to this offence as being ill-conceived and unlikely that the scheme would have been brought to successful fruition, it was, nevertheless, an attempt wrongfully to obtain by deception half a million dollars for which the applicant was to receive an appropriate reward. 24 Returning to the historical context, regrettably from his point of view, the applicant failed to comply with the periodic detention requirement with no adequate explanation except to the limited extent that unfortunately his criminal conduct caused tensions between him and his law-abiding family. Having failed to comply with the periodic detention requirement, he necessarily found himself facing a fixed term of imprisonment of two years, together with whatever statutory adjustment was to be made under the legislation. 25 By consent, an affidavit was tendered to the Court indicating the circumstances under which the applicant failed to comply with the periodic detention order. As the affidavit was put before this Court by consent of the Crown, it was in fact received. It is the affidavit of the applicant affirmed 30 April 2002. Relevantly he states: "At about the time the sentence was imposed I was in conflict with my family. The conflict was because of the criminal proceedings. Because of arguments between myself and my parents and my brother I was unable to stay at home. I had nowhere to live. At the time I was working for a man named Benjamin who ran a tile company. I slept at his work place for about three months. This occurred very early on after I received the periodic detention sentence." 26 He said he found it difficult to comply with the attendance requirements under the periodic detention order at Parramatta on weekends because he had no money and it was his first experience of gaol and people there were using drugs. 27 Further, that during this time he was preoccupied with the abovementioned problems, he did not give sufficient thought to the consequences of his failure to attend periodic detention and he said he had no real idea of how a sentence of full time custody would impact upon his life. Significantly he goes on to state that after he stopped attending periodic detention, he continued to work for the tile company and after about three months was able to obtain a flat of his own in Kensington. He was eventually pulled over by police while driving his employer's work van on 8 May 2001 and upon the police stopping the applicant, they ascertained that the warrant regarding his failure to attend periodic detention had not been executed and it was then executed on him. 28 I have formed the view that her Honour's failure to comply specifically with subs (2) of s 45 can be fairly considered, in the circumstances, to be an oversight on her Honour's part, albeit I think it is clear in the remarks on sentence that she did impliedly consider the matter. 29 The application for leave to appeal in this matter was not filed until 4 December 2001, as I have already indicated. This constitutes a delay of some 16 months from the date of sentence. Leaving aside the question whether, in any event, this Court could intervene at this stage with regard to the order made by Judge Karpin, I am satisfied that no justifiable reason has been advanced for the granting by this Court of the application for an extension of time in which to apply for leave to appeal against Judge Karpin's sentence. 30 In my view, therefore, the appropriate order for this Court is that the application for an extension of time should be refused. **********

Regina v Kym

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