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Court of Criminal Appeal 21 April 2010

R v Huang

[2010] NSWCCA 68

Also reported as 200 A Crim R 419
Fraud & dishonesty
CRIMINAL LAW PARTICULAR OFFENCES PROPERTY OFFENCES CONSPIRACY TO CHEAT AND DEFRAUD CRIMINAL LAW APPEAL AGAINST SENTENCE

Citation: R v Huang [2010] NSWCCA 68
Court: New South Wales Court of Criminal Appeal
Date: 21 April 2010
Judge(s): Grove J, Simpson J, RA Hulme J

Background

The respondent pleaded guilty in the District Court to a single charge of conspiracy to cheat and defraud, a common law misdemeanour carrying no statutory maximum penalty. The offending involved a conspiracy to defraud a finance company of $800,000 through a fraudulent loan application, supported by false identity documents the respondent arranged to have manufactured. Seven further offences involving false instruments were listed on a Form 1 and taken into account at sentencing.

North DCJ imposed a sentence of two years' imprisonment but ordered that its execution be suspended, conditional on the respondent entering into a good behaviour bond. No non-parole period was specified. The sentencing judge indicated a 10 per cent discount had been applied for the utilitarian value of the guilty plea, but did not disclose the starting point from which that reduction was calculated.

The Crown appealed, contending the sentence was manifestly inadequate, pointing in particular to the suspension of the sentence, the respondent's prior criminal history (including similar offences), his failure to respond to earlier leniency, and the fact that he was subject to a good behaviour bond at the time of the offending.

  • Whether the sentence imposed was manifestly inadequate, having particular regard to the suspension of its execution.
  • Whether the manner in which a sentence is to be served (here, by suspension rather than full-time custody) is relevant to a finding of manifest inadequacy in a Crown appeal.
  • Whether, even if the sentence was manifestly inadequate, the Court of Criminal Appeal should exercise its discretion not to intervene, applying s 68A of the Crimes (Appeal and Review) Act 2001 as explained in R v JW [2010] NSWCCA 49.
  • Whether the sentencing judge's approach to discounting for the utilitarian value of a guilty plea was sufficiently transparent.

Decision

The three judges reached differing views on manifest inadequacy. Grove J concluded the sentence was manifestly inadequate, taking into account the objective gravity of the offence, the Form 1 matters, the respondent's prior record, his failure to respond to previous leniency, and the currency of his good behaviour bond. Grove J also noted that the suspension of the sentence amounted to the imposition of a "wrong type" of sentence. Simpson J, by contrast, concluded that the sentence length alone was not manifestly inadequate, and that the case was properly focused on whether suspension was appropriate in the circumstances. RA Hulme J agreed with the order proposed by Simpson J.

Despite the divergence on manifest inadequacy, all three judges agreed that the Court's discretion not to intervene should be exercised. The primary reasons for declining to intervene were the respondent's demonstrated rehabilitation since sentencing, the significant delay between the offending in 2006 and the eventual sentencing in 2009, and the operation of s 68A of the Crimes (Appeal and Review) Act 2001 as explained in R v JW.

An additional concern was raised by both Grove J and RA Hulme J regarding the mechanics of the discount applied. The sentencing judge had announced a 10 per cent reduction for the guilty plea but the arithmetic produced a curious starting point. The resulting sentence was precisely at the two-year ceiling that permits suspension under s 12 of the Crimes (Sentencing Procedure) Act 1999, prompting the Court to question whether a genuine reduction had in fact been applied or whether the sentencing judge had simply selected the maximum permissible sentence for suspension and worked backwards.

Simpson J elaborated on this concern as a broader point of principle: where a judge announces a percentage discount but then imposes a sentence that sits exactly at the statutory threshold for an alternative order (whether suspension, periodic detention, or home detention), and the implied starting point appears implausible, transparency is undermined. The offender, the community, and any appellate court are left to speculate as to whether the stated reduction was genuinely applied.

Orders Made

  • Crown appeal dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that, even where a majority finds a sentence manifestly inadequate, the court retains a discretion to decline to intervene in a Crown appeal. That discretion was exercised here in light of the respondent's rehabilitation and the lengthy delay between offending and sentence.
  • Under s 68A of the Crimes (Appeal and Review) Act 2001, as explained in R v JW [2010] NSWCCA 49, there are legislative constraints on the circumstances in which the Court will intervene in a Crown appeal against a non-custodial or alternative sentence.
  • A divergence of views remained unresolved between members of the Court as to whether the manner in which a sentence is to be served (for example, by suspension) is directly relevant to a finding of manifest inadequacy, or whether the primary focus should rest on the length of the sentence itself.
  • Where a sentencing judge announces a specific percentage discount for the utilitarian value of a guilty plea, transparency requires that the starting point and the resultant sentence be capable of meaningful scrutiny. A sentence that lands precisely at the statutory ceiling for suspension, with an implausible implied starting point, undermines that transparency.
  • Suspension of a sentence that would otherwise require full-time custody may constitute the imposition of a "wrong type" of sentence, which is a relevant consideration in assessing manifest inadequacy on a Crown appeal.

Legislation and Cases Referenced

Legislation
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6(1), 7(1), 12, 12(1); Pt 3 Div 3

Cases
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Douar v R [2005] NSWCCA 455; (2005) 159 A Crim R 154
- R v JW [2010] NSWCCA 49
- R v Thai [2009] NSWCCA 314
- R v Thomson & Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Wegener [1999] NSWCCA 405
- R v Zamagias [2002] NSWCCA 17
- Reed v R [2007] NSWCCA 4
- Stevens v R [2009] NSWCCA 260