Regina v Lelei

COUNSEL : W Robinson QC (Crown) J S Andrews (Applicant) SOLICITORS : S E O'Connor (Crown) D J Humphreys (Applicant) CATCHWORDS : Criminal Law - Sentence not manifestly excessive - parity argument - appropriate adjustment to sentence based on special circumstances - circumstances individual to the offender - LEGISLATION CITED : Crimes Act 1900 Lowe v The Queen (1984) 154 CLR 606 Ilbay (NSWCCA unreported 21 June 2000) CASES CITED: Regina v Tisalandis (1982) 2 NSWLR 430 Regina v Foster (NSWCCA unreported 28 May 2001) Regina v Boo Too (NSWCCA unreported 16 July 1992) Dinsdale v The Queen (2000) 175 ALR 351 DECISION : Appeal granted; Appeal upheld and the sentence imposed in the District Court quashed

IN THE COURT OF CRIMINAL APPEAL 60601/00 CARRUTHERS AJ BADGERY-PARKER AJ

MONDAY 25 JUNE 2001 REGINA v Kitiona LELEI

JUDGMENT 1 CARRUTHERS AJ: I agree with Badgery-Parker AJ. 2 BADGERY-PARKER AJ: On 16 June 2000 in the District Court, Kitiona Lelei adhered to of pleas of guilty entered in the Local Court on 11 April 2000 to five counts of receiving. The charges were laid under s 189 of the Crimes Act , which relates to receiving, in circumstances where the stealing was "a minor indictable offence", that is , an offence for which the prescribed maximum penalty is less than five years imprisonment. Under s 189 each charge carried a maximum penalty of imprisonment for three years. 3 On each charge his Honour Judge Stewart imposed a sentence of sixteen months imprisonment with a non-parole period of twelve months. The sentences were to date from 16 June 2000 and to be served concurrently. On 6 September 2000 an application was lodged for leave to appeal against the sentence, together with an application for an extension of time. The Crown did not oppose an extension of time. 4 At the conclusion of the hearing of the application on Monday 7 May, this Court granted an extension of time and leave to appeal, upheld the appeal, and quashed the sentences imposed in the District Court. In lieu thereof, the applicant was sentenced to five concurrent terms of imprisonment for sixteen months, commencing 16 June 2000 and to expire on 15 October 2001, with a non-parole period to expire on 23 March 2001. The Court formally ordered that he be released to parole on 23 March. That date having passed, the effect was that he is no longer on bail and subject to the conditions thereof, but at liberty on parole until 15 October 2001. 5 This judgment states reasons for that decision. 6 The sole ground of appeal stated in the notice of application for leave to appeal was that the sentence was manifestly excessive; but at the hearing, that ground, though not abandoned, was not strongly pressed. We are of the opinion that the sentence was well within the range. 7 Additionally counsel for the applicant relied on a parity argument, submitting that there was inappropriate disparity between the applicant's sentence and those imposed on a number of co-offenders; it was also argued that the sentencing judge erred in failing to find special circumstances and to make an appropriate adjustment of the relationship between the non-parole period and the parole period. The orders made by the court reflect the rejection of the former submissions and acceptance of the latter. 8 The transactions out of which the charges against the applicant arose involved a large number of offenders who were dealt with at different times and in some instances by different courts. Eight offenders, including the applicant, were sentenced on various dates by Judge Stewart. Of those eight, four appealed their sentences and their appeals were heard by this Court (differently constituted) on 4 December 2000. A ninth offender was initially dealt with in the Local Court, and appealed to the District Court where he was sentenced by Judge O'Reilly. 9 Briefly the facts are these : Sonia Prasad was employed in the workers' compensation division of AMP General Insurance Limited as a claims officer. She fraudulently initiated payments on claims made against the company. Her computer was used to generate or verify ninety-nine fraudulent cheques. Those cheques were forwarded to twelve receivers of whom the applicant was one. 10 The applicant received five cheques with a total value of $48910. He negotiated them through accounts in his name at two different banks. He banked them and subsequently withdrew the proceeds, part of which he used to pay for an overseas trip; the balance was dissipated in gambling. He claimed (falsely, as the judge found and as was indeed obvious) that he received each of the cheques through an unknown source. He was not a client of AMP; nor did he provide his services to that company; yet he made no inquiry about the cheques. He was sentenced on the basis that he had pleaded guilty at an early stage. At the time of sentencing he had not repaid any money. The judge, in my view rightly, attached little weight to his offer to repay the total sum at the rate of $200 per month. 11 The judge noted a number of subjective factors. In his written submissions in support of this application, counsel summarised them thus- "The applicant was described as having ' a couple of unrelated minor offences on his criminal records'. His Honour indicated that he did not intend to take those matters into account on sentence. The applicant was born in West Samoa in 1966, migrating to Australia in 1996 from New Zealand. He had been working for the preceding three and a half years as a sheet metal worker and was well regarded by his employer. He wasted the money he took by gambling. The probation officer described him as naive and gullible and as a person who was 'being overwhelmed by the pace of life in Sydney'. He had the support of his girlfriend, who was expecting their first child in September 2000, as well as the support of his family. The pre-sentence report spoke of him as acknowledging 'in retrospect the foolishness of his actions' and that all inquiries pointed to "an out of character set of circumstances".

He expressed regret and contrition for his actions. The judge however entertained some doubt as to the genuineness of his claimed contrition . 12 The judge gave express attention to the question of parity in sentencing the applicant. The parity principle recognises that as between co-offenders there should not be such marked disparity as may give rise to a justifiable sense of grievance on the part of the offender who receives the heavier sentence (Lowe v The Queen 1984 154 CLR 606, especially per Gibbs CJ, Mason, Wilson and Dawson JJ at page 608-610). In Ilbay (NSWCCA, unreported 21 June 2000) Grove J said that, in summary, the issue is whether the particular sense of grievance is a legitimate one when the matter is viewed objectively. The courts have from time to time warned against the use of the parity principle to reduce a sentence, because of an apparent disparity with another imposed on a co-offender, to a level which would make it an insufficient sentence, thereby replacing a proper sentence with an inadequate and erroneous one. See for example Regina v Tisalandis (1982) 2 NSWLR 430. 13 Other offenders sentenced by the same judge included- · Laloaoa Milford (three counts of receiving cheques totalling $28860) -18 months imprisonment suspended. · Bill Isaia ( two counts of receiving cheques totalling $19575) - 18 months imprisonment suspended. · Luke Mcfarlane (seven counts of receiving cheques totalling $89447) - 2 years imprisonment, suspended. · Arvind Prakash (five counts of receiving cheques totalling $49521) - 2 years imprisonment, with a non-parole period of 18 months. · Anand Krishnan (fourteen counts of receiving cheques totalling $137866) - effected sentence 3 ½ years, with a non-parole period of 18 months.

Each of those offenders had pleaded guilty to the charges against him.

14 Prakash and Krishnan appealed to this Court. Krishnan's culpability was obviously very much greater than the others and the sentence imposed upon him offers no assistance in the present case. The appeal by Prakash was successful. He was re-sentenced to imprisonment for eighteen months, suspended. Thus, his sentence was made equal with those imposed on Milford and Isaia. Krishnan's appeal was also successful and he was re-sentenced, to imprisonment to two and a half years, non-parole period eighteen months. 15 The applicant's counsel submitted that "there would be a justifiable sense of grievance in the applicant if he did not receive a suspended sentence in similar terms to that of his co-offender Prakash and Macfarlane". The difference between the various sentences must be seen in context. As regards the length of the term of imprisonment imposed, that imposed on the applicant was (both before and after the judgment of Court of Criminal Appeal) the shortest.

Before the appeal After the appeal The applicant 16 months 16 months Milford 18 months 18 months (suspended) (suspended) Isaia 18 months 18 months (suspended) (suspended) Prakash 2 years 18 months Macfarlane 2 years 2 years (suspended) (suspended) Krishnan 3 ½ years 3 ½ years

In giving his reasons for upholding Prakash's appeal, Howie J (with whom Simpson J agreed) said: "…but it seems to me to be disparate with other sentences imposed, particularly as some of those sentences were suspended. For example, I am unable to see why there should be such a discrepancy between the sentences imposed upon this applicant and those imposed upon Mr Lelei. Their criminality and subjective circumstances are not significantly different except that Mr Lelei had some minor record and the applicant was of prior good with character. Further Mr Macfarlane received the same sentence for seven cheques totalling $89447 yet the sentence in his case was suspended. Even taking into account the difference in their ages, I can understand that the applicant would have a justifiable sense of grievance that he was required to serve the substantial part of his sentence in full time custody". 16 That passage reveals that to some extent the shorter term of sixteen months imposed on Lelei was used as a benchmark to determine that the sentence imposed on Prakash was excessive. After that, to use Prakash's sentence as a benchmark according to which Lelei's sentence should be reduced creates a somewhat ridiculous cycle. If this applicant should succeed, would it then be open to Prakash to come back to the court and argue that the term of his (suspended) sentence should be reduced? The absurdity is obvious. 17 If regard were had only to the term of the sentences imposed, then there was nothing which could be said to give rise to a justifiable sense of grievance such as would justify intervention by this Court in respect of Lelei. The complaint which was made derived such substance as it may be thought to have only from the fact in the cases of Macfarlane and Prakash (after appeal) the sentences initially imposed were suspended (so too, although the point was not made in the course of this appeal, the sentences on Milford and Isaia). 18 It appeared to us that the submission paid insufficient attention to the real punitive nature of a suspended sentence. This Court recently discussed that question in Regina v Michael Foster (NSWCCA (unreported) 28 May 2001 Giles JA James J and Badgery-Parker AJ). It is convenient to repeat what was stated there: "Obviously, the imposition of a sentence of imprisonment which is then suspended for the whole of its term is a significantly more lenient sentencing order than the imposition of the like sentence not so suspended. Nevertheless, Australian courts have rejected the idea that a suspended sentence is really no punishment at all. In Elliot v Harris (1976) 13 SASR 516 at 527, Bray CJ commented upon that view- 'It reveals an entirely mistaken and wrong headed approach to the question of suspended sentences. So far from being no punishment at all, a suspended sentence is a sentence to imprisonment with all the consequences such as sentence involved on the defendant's record and his future, and it is one which can be called dramatically into effect on the slightest breach of the terms of the bond during its currency.' Those remarks were cited with approval by a full bench of the Federal Court in Regina v P (1992) 64 A Crim R 381; by Winneke P in Regina v Carter (1997) 91 A Crim R 222 at 229; and again by a full bench of the Federal Court in Regina v Gillan (1991) 54 A Crim R 475 at 480." 19 In Dinsdale v The Queen (2000) 175 ALR 351, Kirby J stressed that the exercise of the discretion to suspend a sentence of imprisonment was not to be limited "by reference wholly, mainly or specially, to the effect which suspension would have on the offender". The same considerations as are relevant for the imposition of the term of imprisonment "must be revisited in determining whether to suspend that term. This means that it is necessary to think again about the matters relevant to the circumstances of the offence as well as those personal to the offender". 20 Nevertheless, in most cases it is the circumstances individual to the offender which will carry the most weight in determining whether a sentence should be suspended. Particularly where similar sentences are imposed upon a series of co-offenders, the subjective circumstances of one may dictate that his sentence should be suspended, whereas in the case of another the subjective circumstances do not necessarily lead to the same outcome. 21 It was appropriate for this Court to look more closely at the circumstances of the applicant Lelei than was perhaps necessary for the court in the earlier appeal. There are some significant differences between the situation of Prakash and the situation of Lelei which the sentencing judge might reasonably have regarded as justifying a different approach. 22 Prakash was described by the judge as having at the time of the offences "unfortunate family and personal circumstances" relating to the premature birth of his son, and the associated $19000 medical bill, received by him at a time when he was on compensation because of an injury which he had himself sustained. His offending was at least in part prompted by what was thought to be necessity whereas, on the other hand, the applicant dissipated the money which he received on personal pleasure. 23 Praskash gave evidence in court as to the involvement of Krishnan and Iese Milford in the fraudulent scheme, whereas, in contrast, the appellant stated in his police interview that he received each of the AMP cheques through an unknown source, an assertion which, as noted above, his Honour found to be false. Not only did he lie about his involvement, but he offered no assistance at all to the authorities. 24 Finally, Prakash had made immediate restitution of a substantial sum which he retained out of the money which he received and had by the time of sentencing entered into a deed to repay $15000 to the insurer. I have noted earlier the position in that regard in relation to this applicant. 25 In the circumstances we were not persuaded that the parity argument is made good and were that the only ground of appeal, we would have dismissed the appeal. 26 The judge at no time referred to the question whether there were special circumstances which would justify a departure from the prima facie rule that the non-parole period should be not less than three quarters of the total term. We accepted the applicant's submission that there was in this case material requiring consideration of the question of special circumstances in particular that the applicant had not previously served a prison sentence, and his Honour's express finding that " this young man has …good prospects of rehabilitation". The absence of any reference whatsoever to special circumstances, in the light of the existence of those matters to which we have just referred, strongly suggested that the judge erred in not turning his mind to the question of whether the proportion should be varied (Regina v Boo Too NSWCCA, unreported 16 July 1992). In our view, in that regard alone, error was shown, such that this Court should intervene, but only to the extent of making an appropriate adjustment to the length of the non-parole period. 27 We were informed at the hearing of the application for leave to appeal that the applicant had been released on bail pending the appeal on 23 March 2001, by which date he had served few days over nine months of the sentence. In the circumstances, we were of the opinion that it was appropriate to deal with the matter as follows:

1. Appeal granted 2. Appeal upheld and the sentence imposed in the District Court quashed

3. In lieu thereof the applicant should be sentenced in respect of each count to imprisonment for a term of 16 months commencing 16 June 2000 and to expire on 15 October 2001 with a non-parole period which, having commenced on 16 June 2000 would expire on 23 March 2001 upon which date he would, by order of this court, be released on parole. 28 Those were the orders which the court made 7 May 2001 for the reasons set out above.

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