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Court of Criminal Appeal 5 November 2002

Regina v Yang

[2002] NSWCCA 464

Also reported as (2002) 135 A Crim R 237
Fraud & dishonesty
SENTENCING CROWN APPEAL ALLEGED MANIFEST INADEQUACY OF SENTENCE BOND GRANTED FOR BLACKMAIL SENTENCE INADEQUATE MAJOR DEPRESSIVE DISORDER

Citation: Regina v Yang [2002] NSWCCA 464
Court: Court of Criminal Appeal, New South Wales
Date: 5 November 2002
Judge(s): Simpson J, Carruthers AJ, Mathews AJ

Background

The respondent, a Chinese-born artist living in Australia, was convicted by jury of blackmail under s 100A of the Crimes Act 1900. She had covertly videotaped a general practitioner engaging in sexual activity during a consultation, then demanded $300,000 in exchange for not disclosing the recording. Police monitored telephone conversations and intercepted her at a bank where the doctor had arranged a meeting under the pretence of payment.

At sentencing, Judge Nield in the Parramatta District Court deferred passing sentence and instead placed the respondent on a two-year good behaviour bond under s 9 of the Crimes (Sentencing Procedure) Act 1999, without supervision. The sentencing judge acknowledged the serious nature of blackmail but gave significant weight to the respondent's prior good character and to the fact that the offence could have been dealt with summarily in the Local Court.

The Crown appealed, contending the sentence was manifestly inadequate for an offence carrying a maximum penalty of ten years imprisonment on indictment.

  • Whether the sentence of a good behaviour bond for a blackmail conviction was manifestly inadequate
  • Whether the sentencing judge gave excessive weight to the fact that the Director of Public Prosecutions had elected to proceed on indictment rather than summarily
  • Whether the Court of Criminal Appeal should exercise its residual discretion to dismiss the appeal despite finding the original sentence inadequate, having regard to the respondent's mental health

Decision

The Court of Criminal Appeal accepted the Crown's central submission that the good behaviour bond was manifestly inadequate. Given the objective seriousness of blackmail and the respondent's full subjective circumstances, the Court found that a full-time custodial sentence was called for.

Carruthers AJ took issue with the sentencing judge's framing of the Local Court's concurrent jurisdiction. The judge had suggested the respondent was effectively entitled to a "discount" because the matter could have been dealt with summarily. The Court of Criminal Appeal confirmed that while the availability of summary jurisdiction is a relevant sentencing consideration, it does not require a sentencing judge to treat the Local Court maximum as a ceiling, and it may only result in some mitigation of sentence depending on the objective and subjective criminality involved. The Director's election to proceed on indictment typically reflects the seriousness of the particular offence.

Despite finding the sentence manifestly inadequate, the Court declined to re-sentence the respondent. By the time of the appeal, unchallenged psychiatric evidence established that the respondent was suffering from Major Depressive Disorder, was at high risk of suicide, had limited support networks, and that imprisonment would pose a serious danger to her life. The Court accepted that her fragile mental state may have contributed to the commission of the offence.

Invoking its residual discretion, the Court dismissed the appeal on the basis that justice required it to be tempered with mercy in these particular circumstances. The Court also rejected a community service order as an appropriate alternative.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that a good behaviour bond was manifestly inadequate for a serious blackmail conviction on indictment, where the offence carried a ten-year maximum penalty.
  • Under the established principle from R v Crombie, the availability of summary jurisdiction for a Table 1 offence is a relevant sentencing consideration, but it does not entitle an offender to a discount as of right, nor does it require the sentencing court to treat the Local Court's two-year maximum as a practical ceiling.
  • A sentencing judge's election to give significant weight to concurrent summary jurisdiction can amount to appealable error where it results in a sentence so lenient as to be manifestly inadequate.
  • In dismissing the appeal, the Court of Criminal Appeal exercised its residual discretion in light of compelling psychiatric evidence: the respondent had been diagnosed with Major Depressive Disorder, was at high risk of suicide, and imprisonment was assessed as posing a serious danger to her life.
  • The decision illustrates that the Court's residual discretion to dismiss a Crown appeal, even after finding manifest inadequacy, remains available where the respondent's mental health has materially deteriorated since the original sentence and the interests of justice so require.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 100A (blackmail by threatening to publish)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)
- Criminal Procedure Act 1986 (NSW), s 21 and Schedule 1 (Table 1 offences and summary election)

Cases:
- R v Crombie [1999] NSWCCA 297
- R v Lyons [2000] NSWCCA 337