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Court of Criminal Appeal 4 July 2003

CARR v REGINA

[2003] NSWCCA 175

Fraud & dishonesty
SEVERITY APPEAL PARITY OFFENDER'S SENTENCE.

Citation: Carr v Regina [2003] NSWCCA 175
Court: New South Wales Court of Criminal Appeal
Date: 4 July 2003
Judge(s): Mason P, Dowd J, Adams J

Background

The applicant pleaded guilty in the Queanbeyan District Court to a single count of defrauding the Commonwealth over a period of approximately four years, from January 1996 to April 2000. The fraud involved a scheme, orchestrated primarily by a receptionist at a medical practice, to submit false Medicare claims. Seven co-offenders participated, including members of the organiser's family and associates.

The applicant was sentenced on 12 December 2002 by Graham DCJ to two and a half years' imprisonment with a non-parole period expiring 11 December 2003. A reparation order of $8,230.50 was made by consent. The applicant was the only co-offender, apart from the scheme's principal organiser, to receive a full-time custodial sentence.

The applicant sought leave to appeal on the ground that her sentence was disproportionately severe compared to those of her co-offenders, in particular one co-offender, Diamond, who received only one year of periodic detention despite having defrauded the Commonwealth of roughly three and a half times the amount the applicant had obtained.

  • Whether the applicant had a justifiable sense of grievance arising from the disparity between her sentence and those of her co-offenders, particularly Diamond, such that the parity principle required the sentence to be reduced.
  • Whether the sentencing judge erred by taking into account the larger sum of approximately $101,929.20 (attributed to the applicant and those she introduced to the scheme) without those facts having been proven to the required standard.
  • Whether the sentencing judge erred in declining to suspend the applicant's sentence.

Decision

The Court found that the parity ground was made out. Diamond had extensive prior antecedents, a history of non-compliance with court orders, had pressured the applicant to remain in the scheme, pocketed significantly more from the fraud, and made no reparation at all. By contrast, the applicant had offered and paid full reparation of the amount she personally received and presented a stronger subjective case overall. Despite these differences, Diamond received the more lenient sentence of periodic detention.

Dowd J acknowledged that the applicant's involvement was serious enough to warrant full-time custody, and the Court did not disturb the head sentence of two and a half years. However, applying the principles established in Lowe v R and Postiglione v R, the Court held that the sentencing judge's failure to adequately account for the disparity with Diamond's sentence constituted error. The Court also took into account difficult circumstances the applicant experienced in custody, including the death of a prisoner in her unit.

On the separate question of the larger fraud sum, the Court noted the sentencing judge had referred to the $101,929.20 figure as relevant to the objective seriousness of the offence, even though the facts underlying that broader liability had not been resolved. While the Court acknowledged the concern arising from Olbrich, the primary basis for allowing the appeal remained the parity principle in relation to Diamond.

The Court reduced the non-parole period to 25 percent of the head sentence, resulting in earlier release. The head sentence itself remained at two and a half years.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence of Graham DCJ set aside.
  • Applicant re-sentenced to two and a half years' imprisonment commencing 12 December 2002 and expiring 11 June 2005.
  • Applicant to be released at the expiration of seven months and two weeks from 12 December 2002 (expiring 25 July 2003) upon entering a recognisance of $200 without surety, to be of good behaviour for two years from 4 July 2003, and to appear for sentence if called upon for any breach within that period.

Key Takeaways

  • The parity principle, confirmed in Lowe v R (1985) 154 CLR 606 and Postiglione v R (1997) 189 CLR 295, requires a sentence to be reduced where a co-offender received a substantially more lenient sentence and the disparity produces a justifiable sense of grievance, even if the original sentence was not otherwise unreasonable in isolation.
  • A co-offender's greater culpability, worse criminal history, failure to make reparation, and application of pressure on others to participate in the offending are all relevant factors when assessing whether a sentencing disparity is justified.
  • Where disputed facts are relied upon to increase the objective seriousness of an offence, those facts must be proven to the required standard before they can properly aggravate the sentence: R v Olbrich (1999) 199 CLR 270.
  • Full reparation of amounts personally received, combined with a strong subjective case, weighed materially in the applicant's favour when the Court assessed the parity claim against co-offenders who made little or no reparation.
  • Hardship experienced during custody, including distressing events within the prison unit, formed part of the Court's consideration when determining the appropriate non-parole period on resentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth)

Cases:
- Lowe v R (1985) 154 CLR 606
- Postiglione v R (1997) 189 CLR 295
- R v Olbrich (1999) 199 CLR 270