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6
Court of Criminal Appeal 15 February 2002

R v Institoris

[2002] NSWCCA 8

Also reported as (2002) 129 A Crim R 458
Fraud & dishonesty
CROWN APPEAL ON INADEQUACY OF SENTENCE COUNTERFEITING GRAVITY OF OFFENCE GENERAL DETERRENCE NO SETTLED RANGE OF SENTENCES

Citation: R v Institoris [2002] NSWCCA 8
Court: NSW Court of Criminal Appeal
Date: 15 February 2002
Judges: Mason P, Levine J, Howie J

Background

The respondent, a central figure in two separate counterfeiting schemes, pleaded guilty in the District Court to 12 counts involving counterfeit currency under the Crimes (Currency) Act 1981 (Cth). The offences included making, selling, and disposing of counterfeit $50 polymer notes and old-style $100 paper notes, as well as purchasing equipment intended for counterfeiting. The sentencing judge described the respondent as "pivotal" to both schemes, which involved several co-offenders in subsidiary roles.

At first instance, Judge Kinchington sentenced the respondent to a head sentence of 6 years with a non-parole period of 4 years and 6 months on the most serious count, with all sentences running concurrently from 29 May 2000. The respondent appealed against the severity of those sentences; the Crown cross-appealed, arguing they were manifestly inadequate given the objective gravity of the offending.

The respondent's health was also a feature of the proceedings. His attempts to use illness to delay the proceedings had reduced confidence in his medical claims, though the Court of Criminal Appeal ultimately accepted his current health evidence at face value and gave it some weight in resentencing.

  • Whether the sentences imposed by the District Court were manifestly inadequate for the gravity of the counterfeiting offences
  • The appropriate weight to be given to general deterrence in sentencing for counterfeiting offences, where no settled sentencing range exists
  • Whether the respondent's medical condition warranted a reduction in the otherwise appropriate sentence
  • The application of the double jeopardy principle in the context of a Crown appeal

Decision

The majority (Mason P and Howie J) allowed the Crown appeal, finding the original sentences were so inadequate as to require appellate intervention. The Court identified counterfeiting as a serious offence demanding significant weight be given to general deterrence. The absence of a settled sentencing range for such offences in New South Wales did not reduce the gravity of the conduct; rather, the Court drew on the objective features of the offending to assess what sentence was warranted.

The Court acknowledged the double jeopardy principle that applies whenever a Crown appeal results in a more severe sentence being imposed on a respondent who has already been sentenced. This principle requires the appellate court to moderate the sentence it would otherwise impose, as the respondent faces the burden of being sentenced twice for the same conduct.

The respondent's health was considered, though with some caution. The Court noted his history of using illness to frustrate the proceedings, but accepted the current medical evidence at face value. It reduced the otherwise appropriate non-parole period in recognition of his condition and the likelihood of its deterioration over a lengthy period of custody.

Levine J dissented in relation to the Crown appeal. The majority's orders increased the effective non-parole period and restructured the sentence on the most serious count.

Orders Made

  • Crown appeal allowed (by majority)
  • Respondent's appeal against severity dismissed
  • Sentence on Count 12 quashed
  • In lieu, the respondent sentenced to 5 years imprisonment commencing 29 May 2004
  • Non-parole period of 5 years and 6 months, dating from 29 May 2000 and expiring 28 November 2005, the date of eligibility for release to parole

Key Takeaways

  • Counterfeiting offences under the Crimes (Currency) Act 1981 (Cth) carry maximum penalties of up to 14 years and are treated by the Court of Criminal Appeal as offences of significant objective gravity warranting substantial weight on general deterrence.
  • The absence of a settled sentencing range for a category of offence does not diminish the court's obligation to impose a sentence that reflects the seriousness of the conduct; the Court assessed gravity from the circumstances of the offending itself.
  • Where a Crown appeal succeeds, the double jeopardy principle operates to reduce the sentence that would otherwise be imposed, acknowledging the additional burden on a respondent of being resentenced.
  • A respondent's medical condition may reduce an otherwise appropriate sentence, particularly where deterioration over a lengthy period of custody is likely, even where that respondent has previously sought to exploit illness to delay proceedings.
  • In dismissing the respondent's own appeal, the Court of Criminal Appeal confirmed that the concurrent structure of the original sentences, not their individual lengths, was the primary source of the manifest inadequacy.

Legislation and Cases Referenced

Legislation
- Crimes (Currency) Act 1981 (Cth), ss 6, 8, 11

Cases
- Dinsdale v The Queen (2000) 74 ALJR 1538
- Everett v The Queen (1994) 181 CLR 295
- Gilson v The Queen (1991) 172 CLR 353
- Griffiths v The Queen (1977) 137 CLR 293
- Hammoud (2000) 118 A Crim R 66
- House v The King (1936) 55 CLR 499
- Ibbs v The Queen (1987) 163 CLR 447
- Lowndes v The Queen (1999) 195 CLR 665
- Malvaso v The Queen (1989) 168 CLR 227
- Pearce v The Queen (1998) 194 CLR 610
- R v Holder & Johnston (1983) 3 NSWLR 245
- Regina v Baker [2000] NSWCCA 85
- Regina v Hart [1999] NSWCCA 204
- Regina v Thompson & Coulton [2000] 15 A Crim R 105
- Regina v Vachalec (1981) 1 NSWLR 351
- The Queen v Bugeja [2001] NSWCCA 196
- The Queen v Rohde & Ors (1985) 17 A Crim R 166
- Veen v The Queen (No 2) (1988) 164 CLR 465
- Wong v The Queen [2001] HCA 64