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Court of Criminal Appeal 25 August 2009

CRANSHAW v REGINA

[2009] NSWCCA 80

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE PARTICULAR OFFENCES APPLICATION OF PARITY PRINCIPLES OFFENDERS OFFENDERS WAS OPEN ON THE EVIDENCE

Citation: Cranshaw v Regina [2009] NSWCCA 80
Court: New South Wales Court of Criminal Appeal
Date: 25 August 2009
Judges: Giles JA, Hall J, RA Hulme J

Background

The applicant was a "runner" for an organised crime syndicate that operated over a three-month period in 2006. The syndicate, led by a man named Jonathan Marven, assumed the identities of legitimate individuals and companies in order to defraud financial institutions across New South Wales. The applicant attended banks armed with counterfeit identity documents and forged cheques, presenting himself as the legitimate account holder and withdrawing funds. He received 10% of the cash stolen, earning approximately $43,590 in total.

The total financial exposure across all targeted institutions was over $1 million, with approximately $435,900 actually obtained and not recovered. The applicant had been introduced to Marven through an illicit drug supplier and participated in the frauds as a means of paying off drug debts. He was arrested in June 2006.

Following sentencing in the District Court on 5 June 2008, the applicant received a total effective non-parole period of two years and ten months, with a balance of term (the parole period) of twelve months. He sought leave to appeal on the ground that the sentences were manifestly excessive.

  • Whether the sentences were manifestly excessive, having regard to the applicant's role relative to his co-offenders and the parity principle.
  • Whether the sentencing judge's finding of special circumstances was adequately reflected in the structure of the sentence, specifically by sufficiently varying the statutory ratio between the non-parole period and the balance of term.

Decision

On the parity ground, the Court of Criminal Appeal accepted that the sentencing judge's assessment of the applicant's criminality, and the relativity drawn between the applicant and his co-offenders, was open on the evidence. No error was identified in that respect, and the parity challenge was not upheld.

The appeal succeeded on the special circumstances ground. Under the Crimes (Sentencing Procedure) Act 1999, the standard ratio between a non-parole period and the total sentence is two-thirds to one-third. A sentencing court may find "special circumstances" justifying a departure from that ratio, typically to allow a longer period of supervision on parole. The sentencing judge had found special circumstances, but the structure of the sentences did not adequately give effect to that finding. The balance of term (the parole period) remained at twelve months, which the Court found was insufficient to reflect the degree of supervision the judge had determined was warranted.

The Court held that a longer parole period was required to give genuine effect to the special circumstances finding. Restructuring the sentence for the principal offence (sequence 205) reduced the non-parole period by four months, from two years to one year and eight months. This reduced the total effective non-parole period from two years and ten months to two years and six months, while the total effective parole period increased from twelve months to one year and four months. The overall head sentence of three years and ten months remained unchanged.

Orders Made

  • Leave to appeal granted.
  • Appeal upheld.
  • Sentences imposed by the District Court on 5 June 2008 in respect of sequence 205 (and associated Form 1 matters) set aside.
  • Applicant re-sentenced on sequence 205 to a non-parole period of one year and eight months, commencing 26 March 2009 and expiring 25 November 2010, with a balance of term of one year and four months expiring 25 March 2012. First eligible for parole on 25 November 2010.

Key Takeaways

  • A finding of special circumstances under the Crimes (Sentencing Procedure) Act 1999 must be genuinely reflected in the structure of the sentence. Identifying the finding without adequately adjusting the non-parole to parole ratio constitutes a sentencing error.
  • The Court of Criminal Appeal confirmed that the purpose of a special circumstances finding is to extend supervision on parole, not merely to acknowledge circumstances in the abstract. Where that extension is not adequately built into the sentence, re-sentencing is warranted.
  • Parity arguments require more than a disparity in outcomes between co-offenders. The sentencing judge's characterisation of each offender's relative criminality will stand unless it was not open on the evidence.
  • In upholding the appeal, the Court reduced the total effective non-parole period by four months while preserving the overall head sentence, illustrating that re-sentencing for a special circumstances error need not disturb the total term.
  • The applicant's role as a low-level "runner" working under instruction, paid by commission, and motivated by drug debt was a relevant factor in the sentencing exercise, though it did not displace the seriousness of participation in a large-scale organised fraud operation.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 300(2), 302, 344A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32

Cases:
- Lowe v Regina (1984) 154 CLR 606
- Regina v Ellis (1993) 68 A Crim R 449
- Regina v Zamagias [2002] NSWCCA 17