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141
Court of Criminal Appeal 9 April 2010

JIMMY v REGINA

[2010] NSWCCA 60

Also reported as (2010) 77 NSWLR 540 (2010) 269 ALR 115
Fraud & dishonesty
PROCEDURE PRECEDENTS DECISIONS OF PARTICULAR COURTS REVIEW OF COURT'S PREVIOUS DECISIONS CRIMINAL LAW SENTENCE

Citation: Jimmy v Regina [2010] NSWCCA 60
Court: NSW Court of Criminal Appeal
Date: 9 April 2010
Judges: Campbell JA; Howie J; Rothman J

Background

The applicant pleaded guilty to a single count of money laundering under the Criminal Code Act 1995 (Cth). Between November 2003 and February 2004, he made 27 separate cash transfers to a Hong Kong bank account, each deliberately kept below $10,000, totalling $243,952. The conduct was designed to avoid mandatory reporting obligations under the Financial Transaction Reports Act 1988 (Cth).

The applicant was sentenced in the District Court. He sought leave to appeal on two grounds: first, that his sentence was disproportionately harsh compared to the sentences imposed on two other individuals, Siu and Huang, who had been involved in the same broader criminal enterprise; and second, that the sentencing judge had incorrectly set the non-parole period at two-thirds of the head sentence rather than the 60 per cent assessed as appropriate.

Siu and Huang were not charged with the identical offence as the applicant, but had participated in the same criminal enterprise. The central question was whether the parity principle could be engaged at all in those circumstances.

  • Whether the parity principle in sentencing extends beyond strict co-offenders (persons charged with the very same offence) to participants in the same broader criminal enterprise charged with different offences
  • Whether the earlier Court of Criminal Appeal decision in R v Kerr [2003] NSWCCA 234 correctly stated the law on parity, and whether it should continue to be followed
  • Whether the non-parole period imposed was consistent with the sentencing judge's own assessment
  • Whether the 50 per cent discount applied at first instance for guilty plea and assistance was appropriate

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. All three judges agreed on the outcome and substantially agreed on the reasoning, though each delivered separate observations.

On the parity principle: Campbell JA conducted an extensive review of High Court and intermediate appellate authority. The Court confirmed that the parity principle is not confined to co-offenders in the strict sense. Nothing in the High Court's decisions limits parity to persons charged with the identical offence. Where individuals have participated in the same criminal enterprise, parity considerations can legitimately arise regardless of the specific charges actually laid against each of them. However, the Court identified clear limits: parity cannot be invoked to require a court to compensate for the prosecutorial decision to charge or not charge particular individuals. Sentencing courts are not instruments for ameliorating prosecutorial discretion in charging.

On R v Kerr: The Court held that Kerr should no longer be followed insofar as it had been taken to support the proposition that sentencing judges should adjust sentences to account for the effects of prosecutorial charging decisions. Howie J expressed particular concern at the frequency with which Kerr had been cited in the Court without reference to decisions casting doubt on its correctness.

On the applicant's specific sentence: Despite finding the parity principle capable of applying, the Court found no error in the sentence imposed. The differences between the applicant's role and circumstances and those of Siu and Huang justified the disparity. On the non-parole period and the discount issue, the Court noted that a 50 per cent discount for guilty plea and assistance was at the upper limit and should not exceed 40 per cent absent evidence that the offender would serve the sentence in more onerous conditions as a result of the assistance provided. No such evidence had been called.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The parity principle is not confined to persons charged with the identical offence. The Court of Criminal Appeal confirmed it can extend to participants in the same criminal enterprise who face different charges, provided the comparison is legitimate and not an attempt to circumvent prosecutorial discretion.
  • R v Kerr [2003] NSWCCA 234 was overruled to the extent it suggested sentencing courts should adjust sentences to remedy the effect of prosecutorial charging decisions. The Court was explicit that charging decisions remain exclusively within the prosecutorial domain.
  • A sentencing discount for guilty plea and assistance ordinarily should not exceed 40 per cent where there is no evidence that the offender will serve the sentence in more onerous conditions as a result of assistance given. The 50 per cent ceiling applies only where more onerous conditions are established.
  • In dismissing the appeal, the Court confirmed that even where the parity principle is engaged in principle, a disparity in sentences may be justified by genuine differences in offenders' roles, culpability, and personal circumstances.
  • The decision also touches on the conditions under which the Court of Criminal Appeal may depart from its own previous decisions, in light of Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485 and Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22.

Legislation and Cases Referenced

Legislation:
- Criminal Code Act 1995 (Cth), s 400.4(1)
- Financial Transaction Reports Act 1988 (Cth), s 31
- Crimes Act 1914 (Cth)
- Criminal Appeal Act 1912
- Drug Misuse and Trafficking Act 1985 (NSW)
- Proceeds of Crime Act 1987 (Cth)

Key cases:
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Jones v The Queen (1993) 67 ALJR 376
- R v Kerr [2003] NSWCCA 234
- Ellis v The Queen (1993) 68 A Crim R 449
- R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- FS v R [2009] NSWCCA 301
- Osman v The Queen [2008] NSWCCA 157
- Australian Securities Commission v Marlborough Gold Mines Ltd (1993) 177 CLR 485
- Farah Constructions Pty Ltd v Say-Dee Pty Ltd [2007] HCA 22; (2007) 230 CLR 89