Citation: Regina v Patrick Joseph O'Connor [2002] NSWCCA 156
Court: NSW Court of Criminal Appeal
Date: 7 May 2002
Judge(s): Handley JA; Sully J; Smart AJ
Background
The respondent pleaded guilty to two charges of defrauding the Commonwealth under s 29D of the Crimes Act 1914 (Cth) and two charges of possessing false instruments under s 302A of the Crimes Act 1900 (NSW). The frauds involved two separate schemes and were described by the Court as serious revenue frauds warranting stern sentences. The respondent was sentenced in the District Court in August 2001.
The sentencing judge imposed two concurrent three-year terms with an 18-month non-parole period for the federal offences, and two concurrent two-year terms with 18-month non-parole periods for the state offences. Critically, all four sentences were ordered to run concurrently. The Commonwealth Director of Public Prosecutions appealed against the sentences imposed for the two federal offences only.
The Director's central argument was that the sentences were manifestly inadequate, particularly because the two major fraud schemes warranted partially cumulative sentences rather than fully concurrent ones.
Legal Issues
- Whether the sentences imposed for the federal offences were manifestly inadequate, having regard to the totality of the respondent's criminality
- Whether the sentencing judge erred in ordering the sentences to run concurrently
- How the adjustment mechanism in s 16G of the Crimes Act 1914 (Cth) operates alongside the non-parole period provisions in s 19AB, and whether this creates a "double discount" for federal prisoners sentenced in NSW
- Whether the Crown's concession at first instance (that it would not press for any consecutive component) precluded the appellate court from interfering with the concurrent structure of the sentences
Decision
The Court agreed that making the federal sentences wholly concurrent was a significant error. Smart AJ, with whom the others agreed, observed that the two major fraud schemes, considered together, warranted a total sentence well in excess of three years with an 18-month non-parole period. Had the sentences been made partially cumulative, an effective head sentence of five years with a three-year non-parole period would have been appropriate.
However, the Crown had told the sentencing judge that it "will not be submitting there should be any consecutive component." The Court held it would be incorrect to depart from the sentencing basis the Crown itself had invited the judge to adopt. This concession effectively foreclosed the appeal on the question of concurrency, even though the Court regarded the concurrent structure as the critical flaw in the sentencing.
On the non-parole period, the Court noted it was set at 50% of the adjusted head sentence, below the usual range of 60 to 66%. The Court declined to intervene on this ground alone, noting the difference in custody time was too small to warrant interference and that materials before the sentencing judge could have supported a below-range non-parole period in any event.
Handley JA used the occasion to highlight a structural concern about the federal sentencing framework in NSW. Federal offenders in NSW receive a one-third reduction to their head sentence under s 16G (because NSW no longer has remissions), and then a non-parole period is set as a proportion of that already-reduced sentence. The result is that a federal prisoner may spend significantly less time in custody than a state prisoner sentenced for equivalent conduct, a situation the Court in El Karhani had flagged for legislative reform in 1990. Handley JA noted that twelve years had passed and the legislation remained unchanged.
Orders Made
- Crown appeal against sentence dismissed
Key Takeaways
- A Crown concession at sentencing that it would not seek any consecutive component operates as a binding constraint on a subsequent Crown appeal: the appellate court will not depart from the basis on which the sentencing judge was invited to proceed.
- Under s 16G of the Crimes Act 1914 (Cth), courts in NSW must reduce federal sentences by approximately one-third to account for the absence of remissions; the non-parole period under s 19AB is then fixed as a proportion of that already-reduced figure, producing what the Court characterised as a "double discount" for federal prisoners.
- The Court of Criminal Appeal reaffirmed that the usual non-parole period for federal offences in NSW falls within the range of 60 to 66% of the adjusted head sentence, though a departure from that range will not automatically warrant appellate intervention.
- Revenue frauds are treated as serious offences warranting substantial custodial sentences, given their impact on honest competitors, compliance costs, and the broader community interest in the integrity of the revenue system.
- In dismissing the appeal, the Court again drew attention to the need for federal legislative reform of the sentencing adjustment provisions, echoing a call first made by this Court in DPP (Cth) v El Karhani in 1990.
Legislation and Cases Referenced
Legislation
- Crimes Act 1914 (Cth), ss 16A, 16G, 19AB, 29D
- Crimes Act 1900 (NSW), s 302A
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Sentencing Act 1989 (NSW)
- Financial Transaction Reports Act 1988
Cases
- Director of Public Prosecutions (Commonwealth) v El Karhani (1990) 21 NSWLR 370
- Regina v Simpson [2001] NSWCCA 534
- Pearce v The Queen (1998) 194 CLR 610
- R v Jermyn [1985] 2 NSWLR 194
- Cameron v The Queen [2002] JCA 6
- R v Cappadona & anor [2001] 47 ATR 317
- Director of Public Prosecutions v Hamman (unreported, CCA NSW, 1 December 1998)
- Regina v Tack Lee Pang (1999) 105 A Crim R 474
- R v Cheng (1999) 107 A Crim R 460
- Regina v Budiman (1998) 102 A Crim R 411
- House v The King (1936) 55 CLR 499