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Court of Criminal Appeal 12 October 2001

R v Keong

[2001] NSWCCA 416

Fraud & dishonesty

Citation: R v Keong [2001] NSWCCA 416
Court: NSW Court of Criminal Appeal
Date: 12 October 2001
Judge(s): Grove J, Howie J

Background

The applicant, a 35-year-old Malaysian national who arrived in Australia on a tourist visa in October 1999, pleaded guilty before a magistrate to multiple counts of obtaining a benefit by deception and using a false instrument. The offences involved a scheme of banking stolen cheques using false identities across multiple bank accounts over a two-week period in December 1999, obtaining approximately $138,000. He was committed to the District Court for sentence under s 51A of the Justices Act.

Before Judge Shillington in the District Court, the applicant adhered to his guilty pleas and had two goods-in-custody offences taken into account on a Form 1. He was sentenced to an overall term of 4 years imprisonment with a non-parole period of 3 years. The sentencing judge declined to find special circumstances (which, if found, would have allowed the non-parole period to be set at less than three-quarters of the head sentence).

The applicant sought leave to appeal, arguing that the sentence was manifestly excessive and that the sentencing judge erred in several respects.

  • Whether the sentencing judge gave sufficient weight to the applicant's early guilty plea and the utilitarian benefit of that plea
  • Whether the sentencing judge improperly took into account the prospect of the applicant's deportation at the end of his non-parole period
  • Whether the sentencing judge erred in finding no special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the overall sentence of 4 years with a 3-year non-parole period was manifestly excessive

Decision

On the guilty plea, the Court acknowledged that the sentencing judge had mentioned the plea at the outset of his remarks but did not expressly state that a discount was being applied or quantify it. While the Court noted this transparency would have been preferable, it declined to infer that the experienced judge had disregarded or overlooked the plea's significance. The real question was whether the discount was reflected in the overall sentence.

On the deportation issue, the sentencing judge had remarked that the applicant would realistically be deported at the expiry of his non-parole period. The Court confirmed that the likelihood of deportation is irrelevant to sentencing, being an administrative matter outside the court's control. However, the Court declined to conclude that the sentencing judge had actually taken it into account improperly, finding the remark was more likely a reference to submissions made on the applicant's behalf.

Regarding special circumstances, the Court characterised the finding as one of fact, and emphasised that the Court of Criminal Appeal has no greater entitlement to interfere with that finding than with any other factual determination, provided it was open to the sentencing judge on the material before the court. The Court rejected the submission that comparisons with other decisions where special circumstances had been found in broadly similar circumstances demonstrated error. The mere fact that an offender is experiencing custody for the first time at age 35 did not, in the Court's view, require a finding of special circumstances. The Court also noted that the differing approaches to special circumstances identified in R v Hameed were to be resolved by a five-judge bench, but that development did not alter the outcome here.

On manifest excess, the Court found the overall sentence was not excessive for offences of this seriousness. Taking into account the sophistication of the scheme, the significant sum involved, and the applicant's personal circumstances, the sentence was within the range available to the sentencing judge.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's failure to expressly articulate a guilty plea discount does not automatically establish error, particularly where the judge is experienced and clearly acknowledged the plea; the real question is whether the discount is reflected in the sentence actually imposed.
  • Deportation is an administrative consequence that is irrelevant to sentencing; however, a passing reference to the likelihood of deportation in sentencing remarks does not automatically establish that the judge improperly took it into account.
  • A finding of no special circumstances under s 44 of the Crimes (Sentencing Procedure) Act 1999 is a finding of fact; the Court of Criminal Appeal will not interfere simply because a different court reached a different conclusion on broadly similar facts in another case.
  • In dismissing the appeal, the Court confirmed that being a first-time offender experiencing custody for the first time at age 35 does not, without more, require a sentencing court to find special circumstances.
  • Pointing to other appellate decisions where special circumstances were found in arguably similar circumstances is insufficient to establish error by the sentencing judge; different discretionary judgments can legitimately produce different outcomes.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 300(2)
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44

Cases:
- R v Jap (NSWCCA, unreported, 20 July 1998)
- R v Hameed [2001] NSWCCA 287