Regina v Prasad, Regina v Krishnan, Regina v Prakash, Regina v Milford

Court of Criminal Appeal (NSW)|2000-12-04|Before: Simpson J, Howie J

The applicant Prasad 15 In respect of the applicant Prasad there is only one ground of appeal taken. It is submitted that his Honour erred in the specification of the non-parole period. As I have already indicated, Ms Prasad was sentenced to a total sentence of 5 years 3 months with a non-parole period of 4 years 6 months. The non-parole period exceeds three quarters of the head sentence. Although this does not itself signify error, his Honour stated that he was finding special circumstances by reason of the fact that he was imposing cumulative sentences. A court may find special circumstances where accumulating sentences in order to provide for an appropriate proportion between the minimum sentence and the parole period even if only to ensure an overall sentence which complies with the ratio prescribed by the Crimes (Sentencing Procedure) Act, see Simpson (1992) 61 A Crim R 58. But this was not the effect of what his Honour did. 16 If there had been no special circumstances present apart from the fact that his Honour was imposing cumulative sentences, the usual non-parole period against a head sentence of 5 years 3 months would have been roughly 4 years. This would have given the applicant the benefit of a period of 15 months on parole. As the sentence stands the applicant has a parole period of 9 months. I doubt that the result achieved is what the sentencing judge intended. 17 But, in any event, there were subjective considerations that would indicate that special circumstances should have been found so that the applicant would have the benefit of a significant period on parole with supervision by the parole service. This was the applicant's first period of imprisonment and of necessity it had to be a lengthy one. At the age of 23 years the applicant is a relatively young woman who could well be assisted in her return to the community after a lengthy period in custody by the parole service notwithstanding the support of her family. Further the probation officer had indicated that the applicant could be assisted by the service and by psychological counselling both in overcoming her unresolved grief from the death of her grandfather, and in order for her to come to terms with her offending. 18 In my view the Court should intervene to resentence the applicant so far as the specification of the non-parole period is concerned. Although senior counsel appearing for the applicant sought to rely upon parity if the appeals by the other applicants succeeded, in my view, given the nature of the applicant's offences and the level of her culpability, there is no basis upon which the applicant could have a justifiable sense of grievance as a result of sentences imposed upon the other applicants. The non-parole period on the second sentence should be quashed and a non-parole period of 18 months substituted. This gives the applicant a total effective sentence of 5 years 3 months with a non-parole period 3 years 9 months. She will have the benefit of a period on parole of 18 months if she is released at the expiration of her non-parole period.

The applicant Krishnan 19 In respect of this applicant it was submitted that the sentence was manifestly excessive having regard to the maximum penalty for the offences and the sentences imposed upon other offenders. It was also contended that his Honour erred in not finding special circumstances. As I have earlier indicated, the applicant was sentenced to an effective sentence of 3½ years with a non-parole period of 3 years for 14 counts of receiving. 20 The applicant had pleaded guilty before a magistrate and was committed for sentence to the District Court. The cheques totaled $137,866 and the offences were committed over a period of 15 months from March 98 to June 99. He used three accounts one of which he opened in order to bank some of the cheques. He received the benefit of two cheques totalling abut $20,000. He used the money for household expenses and purchased a motor vehicle. After his arrest he entered a deed agreeing to repay $25,000. He was involved in the offences by reason of his acquaintance with others at the place where he worked. In evidence before the sentencing judge he said that he was "blinded by the money". 21 There was placed before his Honour a confidential letter relating to assistance the applicant had given to the police. That letter was not placed before this Court. However, it appears from what his Honour said in sentencing the applicant that the applicant had provided information concerning a matter unrelated to that for which he was before the court. In his evidence at the sentencing hearing the applicant said that he was prepared to give evidence in accordance with the information in the letter if it were necessary for him to do so. 22 The applicant is aged 42 years and has no prior record. He was born and raised in Fiji. He came to Australia with his wife and nine year old child in 1997. He gained employment as a sheet-metal worker soon after he arrived and remained in employment until he was sentenced. There was a reference from his employer in evidence before his Honour. The applicant's main interest centred around his work, his family and his church. The probation officer was of the view that supervision would not have been of benefit to the applicant at the time of writing the report. The applicant was found to be suitable for periodic detention and community service. 23 The first submission made to this Court was that his Honour erred in applying the principles of totality and cumulation. It was submitted that his Honour incorrectly applied Pearce v The Queen (1998) 194 CLR 610 in that his Honour considered the sentences in isolation without regard to the totality of the sentences imposed. It was submitted that his Honour erred by accumulating the sentence for the last offence. 24 What his Honour said as to his approach to sentencing the applicant was : "I intend to sentence the prisoner on all fourteen charges as I believe I must according to the principles set out in Pearce v The Queen (1998) 72 ALJR 1416. I believe I must fix an appropriate sentence for each offence, and then consider questions of cumulation and concurrence as well as questions of totality."

The last sentence of this paragraph is almost identical with the last sentence of paragraph 44 in the joint judgment in Pearce . 25 I cannot see any error in the way his Honour approached the structure of the sentences. As his Honour formed the view that the appropriate sentence for all fourteen offences exceeded the maximum penalty for any one offence, he was required to make an order for accumulation in respect of one or more of the offences. It mattered little how he structured the sentences in that regard provided that the totality of the sentence accorded with the totality of the criminality. 26 It was then submitted that the sentence was manifestly excessive and features of the offences committed by the applicant and his subjective features were relied upon to support that submission. In particular it was stressed that the applicant did not receive all the money from the cheques he received. That does not seem to me to be a particularly significant matter. The fact is that he was prepared to make funds available to others to which he knew they were not entitled on the basis that he received the proceeds of some of the cheques himself. I see little difference in culpability between that scenario and one where he kept all the money for himself. I believe his Honour was entitled to take the view that he was motivated by greed. 27 The sentence on the applicant was handed down before the guideline judgment of this Court in R v Thomson and Houlton [2000] NSWCCA 309. The judgment of the Chief Justice in that decision would indicate that the applicant ought to have received a discount for the plea of guilty based only upon utilitarian considerations of about 25 per cent, the plea having been entered in the Local Court. The sentencing Judge found that the applicant's contrition for the commission of the offence was genuine up to a substantial point. The applicant was also entitled to a discount on account of his assistance to the authorities. His Honour did not anywhere indicate the quantity of the discount that the applicant should receive as a result of any, or all, of these matters. 28 I would have thought that a discount of at least one third was appropriate assuming that only a minimal reduction were given for the assistance to the police. On the basis that such a discount was appropriate and was given by the sentencing judge, the starting sentence must have been about 5 years. Although the applicant had 14 offences committed over a period of 15 months, it was the one course of criminal conduct arising from the situation in which he found himself by reason of his friendship and employment with others who had access to these cheques. He had no prior offences and his Honour found that his prospects of rehabilitation were good. Such a sentence seems to me to be approaching the top of the available range. 29 Although the sentence standing alone might have been just within his Honour's sentencing discretion, when it is viewed along side other sentences imposed on the receivers of these cheques, the applicant would have a legitimate sense of grievance especially in respect of the offender who was ultimately sentenced by Judge O'Reilly to periodic detention for 18 months for ten counts of receiving. That is a sentence which on its face seems excessively lenient. Further, other receivers, who were sentenced after the applicant, were given the benefit of suspended sentences. They were involved in less offences and were younger than the applicant but there is a very substantial difference between a sentence which is to be served in full time custody and one which is suspended. Even as against Mr Lelei the applicant's sentence seems to be unduly harsh. That offender received 16 months imprisonment with 12 months non-parole period for 5 cheques totalling $50,000. There is no suggestion that he gave any assistance to the authorities. 30 Ultimately, I have been persuaded that there is an undue disparity between the sentences imposed upon the applicant and those imposed upon other offenders. It is somewhat difficult to achieve parity between a sentence to be served by way of full time custody and one which is to be suspended because of the unusual nature of a suspended sentence. But it seems to me the fact of the suspension cannot be ignored. I would intervene and resentence the applicant. 31 On the basis that this Court might be required to resentence the applicant an affidavit from the applicant's wife was received by the Court. This sets out the difficulties which she faces in visiting the applicant in custody because of his placement in the Cessnock Correctional Centre. In my opinion this is not a matter which is relevant to the sentencing of the applicant. It is not such exceptional hardship that this court can have regard to it. There is no evidence as to the affect of the applicant's placement upon him but no doubt the difficulties for his wife and child in visiting him is a matter which bears upon the nature of his custody. However, this Court knows nothing about what might be the applicant's placement in the future, especially if his sentence is reduced. It is not a matter which I believe this Court should take into account. 32 I am of the opinion that the applicant should be resentenced to a total sentence of 2½ years imprisonment. The probation officer indicated that at the time of writing the report that supervision was not seen as being of particular benefit to the applicant. However, he will have spent a relatively lengthy period in custody before his release and I do not believe that it could be said that he would not require the assistance and support of the probation service when released at the expiration of the non-parole period. Any sentence of imprisonment must have a devastating effect upon any person let alone a 40 year old man with no prior convictions with a wife and 12 year old son. Neither he or his wife have family to support them while he is in custody and on release. I believe that there are special circumstances and a non-parole period of 18 months should be specified.

The applicant Prakash 33 In respect of the applicant Prakash it was submitted that the sentence imposed upon him was manifestly excessive having regard to the maximum penalty for the offences and his subjective circumstances. It was submitted that his Honour was in error in failing to find special circumstances. It will be recalled that the applicant was sentenced to 2 years imprisonment with a non-parole period of 18 months in respect of 5 counts of receiving. It was also submitted that the sentence imposed upon him was excessive when compared with sentences imposed upon other offenders and that the applicant had a justifiable sense of grievance on that account. 34 The applicant pleaded guilty before a magistrate and was committed for sentence. The cheques totalled an amount of $49,521. He received the benefit of one cheque for just under $10,000. The offences were committed over a period of 3 months. There is little doubt that he was involved in the scheme by reason of his acquaintance with others at his place of employment who were involved in this criminal conduct. He had repaid $15,000 to AMP. 35 The applicant was aged 31 years and had no prior convictions. He came to Australia from Fiji in 1996 and worked here as a diesel mechanic. He returned to Fiji and was married before emigrating to Australia in 1998. He and his wife have no other family members in Australia. He has been employed but at the time of the offences was receiving workers compensation for an injury to his foot. He also was suffering an injury to his arm for which he could not receive compensation. There was a reference from his employer for whom he worked since January 1999. 36 The applicant was in financial difficulties due to medical expenses arising from the birth of his son and because of his injuries. His Honour found that he, unlike others who were before the court for this criminal enterprise, did not offend through greed. The probation service did not believe that it could offer any benefit to the applicant by way of supervision. By reason of his medical condition he was unsuitable for either periodic detention or community service. 37 Although it was submitted that the sentence imposed upon this applicant was excessive in relation to the maximum penalty prescribed, there were five offences committed by the applicant over a period of 3 months. The sentence itself does not appear to me to be outside his Honour's discretion notwithstanding that the applicant had no prior convictions. 38 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 character. Further, Mr Macfarlane received the same sentence for 7 cheques totalling $89,447 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. 39 In my view this Court should intervene and the applicant should be resentenced. In the event that the Court reached that position material was received as to the involvement of the applicant in courses and a letter from the applicant concerning his offending and his future plans. This material simply emphasises the point that the applicant will not require assistance from the parole board when he is released from a short period in custody. In my view an appropriate manner in which to deal with this matter, having regard to the fact that the applicant has already served 6 months full time custody, is to impose a further sentence upon the applicant to commence from today but to suspend it.

The applicant Milford 40 In respect of the applicant Milford the complaint is that the sentences imposed were manifestly excessive and that his Honour erred in his assessment of the culpability of the applicant vis a vis other persons who were charged as a result of this fraud. 41 His Honour sentenced this applicant last of the applicants who have appealed to this court. Although the proceedings involving all applicants commenced together, they became separated and his Honour heard evidence and sentenced some offenders on different occasions and in the absence of other offenders. By the time he came to deal with this applicant, his Honour had heard evidence from a number of persons involved in the criminal conduct arising from Ms Prasad's fraud. Some of this material implicated the applicant in her criminal conduct in a more serious way than the 12 charges of receiving to which he pleaded guilty might have indicated. 42 In the course of his sentencing remarks his Honour commented upon the fact that some of the persons who were involved in receiving the cheques were related by birth. His Honour then stated: There is a clear association between all of the people involved in the receiving of the cheques. That is not to say that I intend to deal with this prisoner other than for the offences with which he presently stands and has pleaded guilty to. 43 After dealing with the facts his Honour stated: It is unfortunate that this young man involved himself with this serious series of illegal activities. At one point I was seriously considering sending him to gaol for a similar period to that which I imposed on the woman Prasad. I have been dissuaded from that course by his counsel, Mr Stanton. I do intend, however, to send Mr Milford to gaol on a full-time custodial basis. 44 It was submitted before this Court that, if his Honour had been seriously considering imposing the same sentence on the applicant as was imposed on Ms Prasad then, despite what his Honour said earlier about sentencing the applicant only for the offences to which he pleaded guilty, his Honour was taking a view of the applicant's culpability greater than disposed by the offences for which he was to be sentenced. Counsel relied upon the fact that Ms Prasad was sentenced for 99 acts of criminality, that she was in a position of trust, that she had prior offences of dishonesty and the maximum penalty for each of the offences committed by her was 5 years imprisonment. 45 Later in his Honour's remarks and just before imposing sentence on the applicant, Judge Stewart said: I have endeavoured to take into account the principles of parity and, in so doing, as I have already remarked, I have taken the view that the prisoner is not as culpable as the woman Prasad, who effectively was given a cumulative non-parole period of four years and six months, having been sentenced to three years imprisonment on two matters cumulatively. He is however more culpable that any other offender involved in this scheme. Unfortunately he introduced most of them to it. Some of these persons were physically frightened of this prisoner, they told me, and I accept what they say. In fairness however I do not believe that this prisoner had that matter put to him. I mention it on the question of rehabilitation. 46 Counsel for the applicant contended that his Honour was in error in the findings he made in this passage. It was submitted that they were not open on the evidence that was admissible against the applicant and they were not consistent with the criminality involved in the charges to which the applicant had pleaded guilty and for which he was to be sentenced. It was further submitted that the fact that others said that they were frightened of the applicant had no relevance at all, even on an assessment of the applicant's prospects of rehabilitation. 47 It seems to me that his Honour used evidence and material placed before him when he was sentencing other offenders in order to determine the extent of the culpability of the applicant in the criminal enterprise resulting from Ms Prasad's fraud. His Honour realised the potential unfairness in using material adverse to the applicant in a situation where he had not been in a position to object to it or rebut it. Yet his Honour appears to have used that material in determining the sentence to impose upon the applicant. Further, the applicant was not charged with complicity in the offences committed by others. He was charged with 12 offences of receiving relating to cheques which he personally had banked and in respect of which he had received the benefit. 48 I believe that his Honour erred in his assessment of the applicant's criminality. Although his Honour was entitled to find when sentencing other persons that the applicant was involved in perpetrating the scheme with Ms Prasad, as he did when sentencing Mr Lelei, he could not use that finding when sentencing the applicant in light of the charges for which the applicant was to be sentenced. The only basis upon which his Honour could distinguish the culpability of the applicant from other offenders was on a consideration of the number of cheques received by him and the amount of money involved. In this regard he was less culpable than Mr Krishnan. 49 The applicant was aged 24 years. He came to Australia with his family from American Samoa in 1989. He appears to be a committed worker and was in his fourth year as an apprenticed tiler. He was described in the pre-sentence report as a stable and focussed young man with promising potential in employment. He had broken up with Ms Prasad and formed another relationship. The applicant had completed an anger management course as a result of the recognisance he entered in October 1999. The probation service was considering terminating supervision in the near future. 50 His Honour referred to the applicant as having previous convictions and stated that unfortunately for the applicant he did not have a good record. But in fact the offences on his record post-dated the offences before the court. They were not irrelevant in considering his prospects of rehabilitation but they did not include acts of dishonesty. The applicant had not served a sentence in full-time custody before being sentenced by his Honour. He was at the time of sentence serving a sentence by way of periodic detention which would expire in August 2000. The applicant was on a good behaviour bond until October 2002 51 The applicant had committed 12 offences over the period of about 12 months and received $117,000. He spent that money on a holiday, a motor vehicle and gambling. He had made no offer of repayment. 52 As I have already indicated the applicant received, what was in effect, a fixed term of 3½ years. In my view a head sentence of that length was an appropriate one notwithstanding the erroneous approach of his Honour in determining the criminality of the applicant. However, that error seems to have resulted in the failure of his Honour to fix a non-parole period. His Honour gave no reasons for the imposition of the fixed term for the 12th count contrary to subs 45(2) of the Crimes (Sentencing Procedure) Act 1999. While this failure does not invalidate the sentence, see subs 45(4), the failure to explain why a fixed term of such length was thought to be appropriate indicates that error might have occurred. I can for myself see no reason in either the nature of the offences committed or the subjective circumstances of the applicant which would justify the applicant being deprived of the opportunity to serve part of that sentence in the community on parole. This is especially so since his Honour found that his prospects of rehabilitation were good although he added "that only time will tell". 53 In my opinion the sentence is manifestly excessive by reason of the failure to impose a non-parole period. I would allow the appeal and quash the sentences imposed. The applicant should be sentenced to an effective total sentence of 3½ years. I am of the view that, having regard to the applicant's age, the fact that he will serve his first period in full time custody and the length of that period, there are special circumstances. There should be a non-parole period of 2½ years.

Proposed orders 54 In each case leave to appeal should be granted and the appeal allowed. 55 In respect of the applicant Prasad the sentence for the 12th count on the indictment is quashed and in lieu the applicant is sentenced to 3 years imprisonment with a non-parole period of 18 months. The sentence is to commence on 19 July 2002 and the non-parole period is to expire on 18 January 2004 the date upon which the applicant is eligible to be released to parole. 56 In respect of the applicant Krishnan the sentence on the 14th count is quashed and in lieu the applicant is sentenced to 2 years imprisonment with a non-parole period of 12 months. The sentence is to commence on 9 December 2000 and the non-parole period is to expire on 8 December 2001 the date upon which the applicant is to be released to parole. It is to be a condition of his parole that he place himself under the supervision of the Probation and Parole service. 57 In respect of the applicant Prakash the sentences are quashed. In respect of each count on the indictment the applicant is sentenced to 18 months imprisonment to commence today, 15 December 2000. The sentence is suspended upon the applicant entering a good behaviour bond for a period of 12 months from today. 58 In respect of the applicant Milford, the sentences are quashed. In respect of the sentence on the first count the applicant is sentenced to a fixed term of 18 months to commence from 23 June 2000 and to expire on 22 December 2001. In respect of each of the 2nd to 11th counts the applicant is sentenced to a fixed term of 18 months imprisonment to commence from 23 December 2000 and to expire on 22 June 2002. In respect of the 12th count the applicant is sentence to 18 months imprisonment to commence on 22 June 2002 with a non-parole period of 6 months. The non parole period is to expire on 22 December 2002 the date upon which the applicant is to be released to parole. It is to be a condition of his parole that he place himself under the supervision of the probation and parole service. ************

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CITATION : Regina v Prasad, Regina v Krishnan, Regina v Prakash, Regina v Milford [2000] NSWCCA 539 revised - 15/12/2000 FILE NUMBER(S) : CCA 60408/00; 60381/00; 60370/00; 60412/00 HEARING DATE(S) : 4 December 2000 JUDGMENT DATE : 15 December 2000

LEGISLATION CITED : Crimes Act 1900 - ss 178BA, 189 Crimes (Sentencing Procedure) Act 1999 - ss 32, 45(2), 45(4) Simpson (1992) 61 A Crim R 58 CASES CITED: Pearce v The Queen (1998) 194 CLR 610 R v Thomson and Houlton [2000] NSWCCA 309 DECISION : Refer to paragraphs 54 to 58.

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Court

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Judgment (7 paragraphs)

Cases Cited (4)