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Court of Criminal Appeal 21 March 2003

R v Latumetan & Murwanto

[2003] NSWCCA 70

Fraud & dishonesty

Citation: R v Latumetan & Murwanto [2003] NSWCCA 70
Court: New South Wales Court of Criminal Appeal
Date: 21 March 2003
Judge(s): Studdert J; Shaw J

Background

Two applicants, a married couple, each pleaded guilty in the District Court to eight counts of making false statements with intent to obtain financial advantage, as well as possession of a falsified passport. Between July and December 2000, they lodged multiple credit applications with the NRMA and other financial institutions using false names, false driver's licences, and fabricated supporting documents. The court found that they obtained approximately $183,000 and sought a further $346,000 that was declined.

After being arrested and admitted to bail, the applicants attempted to flee Australia using falsified passports. They were apprehended at Sydney Airport on 1 September 2001 and remained in custody from that date. The sentencing judge in the District Court noted that the Department of Immigration had classified them as illegal non-citizens to be deported upon completion of any sentence.

At first instance, Tupman DCJ imposed fixed-term sentences on both applicants without setting a non-parole period. The decision to decline a non-parole period was based, at least in part, on the applicants' immigration status. Both applicants sought leave to appeal against that sentencing structure.

  • Whether the sentencing judge erred by declining to set a non-parole period for each applicant
  • Whether the applicants' immigration status provided a proper basis for withholding a non-parole period
  • Whether the sentences should be restructured to include a non-parole period upon resentencing

Decision

The Court of Criminal Appeal found that the sentencing judge's reasoning for declining to set a non-parole period did not withstand scrutiny. The primary ground for that decision, the applicants' immigration status, was not a proper basis for withholding a non-parole period. The court held that the sentencing process had therefore miscarried, and that intervention was warranted.

Studdert J concluded that the sentence imposed on the principal count was at the lowest end of the appropriate range, and that no error arose from the length of that sentence itself. The problem lay solely in the structural decision not to impose a non-parole period.

The court also considered a submission that special circumstances existed to justify a non-parole period shorter than the statutory norm, which would in turn have extended the parole period. Studdert J rejected that submission, concluding that the non-parole period proposed in resentencing represented the minimum period each applicant should be required to serve. Shaw J concurred in full with the reasons and orders.

Orders Made

For each applicant:

  • Leave to appeal granted
  • Appeal allowed and original sentences quashed
  • In lieu of the original sentences, the following structure imposed:
  • Possession of a falsified passport: fixed term of six months imprisonment, commencing 1 September 2001 and expiring 28 February 2002
  • First count (false statement with intent to obtain financial advantage): twenty-two months imprisonment commencing 1 March 2002 and expiring 30 December 2003, with a non-parole period from 1 March 2002 to 31 August 2003
  • Counts 2 to 8: fixed term on each count commencing 1 March 2002 and expiring 31 August 2003
  • Each applicant to be admitted to parole at the end of the non-parole period

Key Takeaways

  • A sentencing court's decision to withhold a non-parole period based on an offender's immigration status was found to constitute a miscarriage of the sentencing process, warranting appellate intervention.
  • The Court of Criminal Appeal confirmed that the overall length of the principal sentence was within range and required no adjustment; the structural error alone justified resentencing.
  • Under the resentencing, the passport offences were placed first in the sequence, followed by the fraud counts running cumulatively, reflecting the chronological order of custody.
  • Refusing to find special circumstances, the court held that the non-parole period imposed represented the minimum custodial period appropriate in the circumstances.
  • Where co-offenders present substantially overlapping criminality and no basis exists to distinguish between them, identical sentences may be entirely appropriate.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BB
- Passports Act, s 9A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(1)
- Commonwealth Crimes Act, ss 19AB, 19AC
- Criminal Appeal Act, s 6(3)

Cases:
- R v Chase (unreported, NSWCCA, 19 October 1990)
- R v Chi Sun Tsui (1985) 1 NSWLR 308
- R v Ferus (unreported, NSWCCA, 23 August 1991)
- R v Jap (unreported, NSWCCA, 20 July 1998)
- R v Montenegro (unreported, NSWCCA, 15 February 1991)
- R v Ndubuisi (unreported, NSWCCA, 27 March 1992)
- R v Shrestha (1991) 173 CLR 48
- R v Simpson [2001] 53 NSWLR 704