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Court of Criminal Appeal 25 August 2009

JOD v REGINA

[2009] NSWCCA 205

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE PARTICULAR OFFENCES APPLICATION OF PARITY PRINCIPLES OFFENDERS” APPEAL DISMISSED

Citation: JOD v Regina [2009] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 25 August 2009
Judges: Giles JA, Hall J, RA Hulme J (Hall J delivered the principal judgment; Giles JA and RA Hulme J agreed)

Background

The appellant (referred to as JOD) pleaded guilty in the District Court to 73 fraud-related offences committed over a period of approximately two years and two months. He was a participant in an organised crime syndicate that assumed the identities of legitimate individuals and companies in order to defraud financial institutions. His role extended beyond that of a street-level operative: the sentencing judge found that he ran field operations for the syndicate's leader, instructed other offenders, advised on which bank branches were suitable targets, and occupied a position of trust within the organisation.

The offences spanned conduct across 2004, 2005, and 2006 and included using forged Commonwealth documents, opening bank accounts in false names, dishonestly obtaining personal financial information, obtaining money by deception, and using false instruments. JOD was 20 years old at the time of the offending and was on conditional liberty when the offences were committed. He received an effective aggregate head sentence of six years, with a non-parole period of four years.

On appeal, JOD argued that his sentence was disproportionate when compared to the sentences received by two others connected to the syndicate's activities, particularly a person referred to as Cranshaw, who received a total sentence of three years and ten months.

  • Whether the parity principle required that JOD's sentence be reduced to achieve consistency with the sentences imposed on Cranshaw and another offender (Marven)
  • Whether JOD and Cranshaw were properly characterised as "co-offenders" for the purposes of the parity principle, given they were charged with different offences arising from different conduct
  • Whether the sentencing judge's findings about JOD's role and the extent of his offending justified the disparity in sentences

Decision

The Court of Criminal Appeal dismissed the appeal, granting leave but finding no error in the sentences imposed by Bennett DCJ in the District Court.

The Court confirmed that the parity principle, which guards against unjustifiable disparity between sentences for co-offenders, does not operate mechanically. Offenders who are charged with different offences in connection with a broader criminal enterprise are not strictly "co-offenders" in the relevant sense, particularly where the factual circumstances and nature of their respective conduct differ materially.

Hall J emphasised that JOD's objective criminality was of a higher order than Cranshaw's. JOD offended repeatedly over more than two years, held an integral role near that of the principal, instructed others, and was on conditional liberty at the time of the offending. Cranshaw, by contrast, was characterised as a "runner" who offended for only three months. The Court found that these differences in role, duration, and culpability amply justified the difference in sentences.

The Court also noted that the financial losses associated with JOD's offending, while nominally lower than those connected to Cranshaw, did not alter the analysis of relative culpability given the nature and extent of JOD's participation in the syndicate. There was no unjustifiable sense of grievance arising from the sentencing outcomes, and no basis for appellate intervention.

Orders Made

  • Leave to appeal granted.
  • The appeal is dismissed.

Key Takeaways

  • The parity principle does not automatically apply where offenders involved in a broader criminal enterprise are charged with different offences arising from materially different conduct; they may not qualify as "co-offenders" in the strict sense required by the principle.
  • A sentencing court's findings about an offender's role within an organised criminal syndicate, including whether that person directed others and occupied a position of trust, are highly relevant to assessing objective criminality and justifying sentencing differentials.
  • Duration of offending is a significant aggravating factor: JOD's conduct over two years and two months was treated as substantially more serious than Cranshaw's three-month involvement, even where the raw financial loss figures might suggest otherwise.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a disparity in head sentences does not give rise to a justifiable sense of grievance where the sentencing judge's findings establish a corresponding disparity in culpability.
  • Being on conditional liberty at the time of offending remained a relevant aggravating circumstance in the overall sentencing assessment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 178BB, 300(2)
- Crimes Act 1914 (Cth), s 16BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Code Act 1995 (Cth), ss 145.1(5), 480.4
- Financial Transaction Reports Act 1988 (Cth), s 24(1)

Cases:
- Lowe v The Queen (1987) 154 CLR 606
- Postiglione v The Queen (1997) 189 CLR 295
- Regina v Ellis (1993) 68 A Crim R 449
- Wurramarbra v Regina (1979) 28 ALR 176
- Gao v Regina [2008] NSWCCA 234
- Kardoulias v Regina [2005] 159 A Crim R 252
- Mitchell v Regina [2008] NSWCCA 192
- Pham v Regina [2009] NSWCCA 25
- Regina v Formosa [2005] NSWCCA 363
- Regina v Ilbay [2000] NSWCCA 251
- Regina v Kerr [2003] NSWCCA 234
- Spinks v Regina [2007] NSWCCA 52
- Watson (NSWCCA, 25 February 1992, unreported)
- Yin v Regina [2007] NSWCCA 350