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85
Court of Criminal Appeal 27 May 2011

Khoury v R

[2011] NSWCCA 118

Also reported as (2011) 209 A Crim R 509
Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW APPEAL AGAINST SENTENCE PLEA OF GUILTY OFFENDERS LEAVE GRANTED APPEAL ALLOWED

Citation: Khoury v R [2011] NSWCCA 118
Court: NSW Court of Criminal Appeal
Date: 27 May 2011
Judge(s): Simpson J (with Davies J and Grove AJ agreeing)

Background

The applicant was a parish priest who had volunteered to supervise community service orders performed by two offenders at his church. Neither offender performed any of the required hours. With the active assistance of a Probation and Parole officer (Mr Ishac), the applicant falsified the time sheets used to verify community service work, effectively covering up both men's non-compliance.

When the matter came to light, ICAC investigated. The applicant gave false and misleading evidence at ICAC hearings and made false statements to ICAC officers. He was charged with two counts of doing an act with intent to pervert the course of justice (each carrying a maximum of 14 years' imprisonment) and one count of giving false or misleading evidence to ICAC (maximum 5 years). Four further offences were listed on a Form 1 to be taken into account on sentencing.

The applicant pleaded guilty and was sentenced in the District Court in March 2010 to an aggregate term of 3 years and 4 months, with a non-parole period of 2 years and 6 months. He sought leave to appeal, arguing several errors in the sentencing process.

  • Whether the sentencing judge erred by using language that hypothesised a notional "mid-range" offence when assessing objective gravity, given that the standard non-parole period framework did not apply to these offences
  • Whether the sentencing judge erred by failing to take into account the delay in bringing the prosecution
  • Whether a finding of special circumstances was properly reflected in the structure of the aggregate sentence
  • Whether fresh medical evidence, not placed before the sentencing judge, should be admitted on appeal under s 6(3) of the Criminal Appeal Act 1912
  • Whether the sentences were disproportionate when compared with the sentences imposed on co-offenders, particularly Mr Ishac

Decision

Objective gravity and the "mid-range" language: Simpson J found no ultimate error in the sentencing judge's assessment of objective gravity, even though the judge had used language that imported the two-step reasoning applicable to standard non-parole period offences. That two-step process (identifying where the offence sits relative to a notional mid-range and then applying the standard non-parole period) is mandated only for offences that carry a standard non-parole period. The offences here did not. While the language was erroneous, it did not affect the underlying assessment, and this ground was not made out.

Delay: The sentencing judge had failed to take into account the delay between the offending (2005 to 2006) and the sentencing (2010). This was a recognised error. Delay in prosecution is a mitigating factor because an offender may have lived for years under the uncertainty and stress of pending charges, and the Court of Criminal Appeal found this omission justified intervention.

Special circumstances and aggregate sentence: Although the sentencing judge found special circumstances (justifying a shorter non-parole period relative to the head sentence), that finding was not adequately carried through into the aggregate sentence. The resulting structure did not properly reflect the departure from the standard statutory proportion.

Fresh evidence: The applicant sought to tender medical reports that had not been before the sentencing judge. The Court noted that the evidence could have been obtained with proper diligence, and the failure to obtain it appeared to result from inadequate legal advice. Applying s 6(3) of the Criminal Appeal Act 1912, the Court admitted the evidence in the interests of justice.

Co-offender parity: Parity with co-offenders was not formally raised as a ground of appeal. However, Mr Ishac, whose breach of trust was found to be greater than the applicant's (he was a Probation and Parole officer who had actively facilitated the falsification), received a substantially lighter aggregate sentence. Simpson J noted it was impossible to justify the disparity, and while direct parity findings were inappropriate given the ground had not been raised, the co-offender sentences remained a relevant reference point when the Court exercised the sentencing discretion afresh. Her Honour also observed that both the sentences imposed on co-offenders and those she was about to propose were, in her view, markedly lenient given the gravity of the offending.

Orders Made

  • Leave to appeal against sentences granted
  • Appeal allowed; original sentences quashed
  • In substitution:
  • Count of giving false and misleading evidence to ICAC: fixed term of 6 months (26 March 2010 to 25 September 2010)
  • First count of perverting the course of justice: fixed term of 10 months (26 April 2010 to 25 February 2011)
  • Second count of perverting the course of justice (incorporating Form 1 offences): 22 months commencing 26 May 2010, with a non-parole period of 12 months expiring 25 May 2011; head sentence expiring 25 March 2012
  • Direction under s 50 of the Crimes (Sentencing Procedure) Act 1999 that the applicant be released at expiration of the non-parole period on 25 May 2011
  • Aggregate sentence: head term of 2 years, non-parole period of 1 year and 2 months

Key Takeaways

  • The Court of Criminal Appeal confirmed that the two-step reasoning process tied to standard non-parole periods applies only where such a period is prescribed for the offence; importing that language into sentencing for other offences is erroneous, though it will not necessarily vitiate the sentence if the underlying gravity assessment is sound.
  • Failure to take into account delay between the commission of offences and sentencing constitutes a sentencing error capable of warranting appellate intervention, even where the individual sentences are not manifestly inadequate.
  • A finding of special circumstances must be reflected in the actual structure of the sentence ultimately imposed; a finding that is not carried through into the aggregate serves no purpose and constitutes error.
  • Under s 6(3) of the Criminal Appeal Act 1912, fresh evidence may be admitted on a sentence appeal even where it could have been obtained at first instance, if inadequate legal advice explains the omission and admission serves the interests of justice.
  • Sentences imposed on co-offenders are a relevant contextual consideration when the appellate court exercises the sentencing discretion afresh, even where formal parity grounds were not pressed on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 319 (perverting the course of justice)
- Independent Commission Against Corruption Act 1988 (NSW), ss 80(c), 87(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 5, 8, 44(2), 50, 86, Part 7
- Crimes (Administration of Sentences) Act 1999 (NSW), s 115
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Markarian v R [2005] HCA 25; 228 CLR 357
- Einfeld v R [2010] NSWCCA 87; 200 A Crim R 1
- R v Einfeld [2009] NSWSC 119
- Blundell v R [2008] NSWCCA 63; 70 NSWLR 660
- Blundell v R [2008] NSWCCA 92; 184 A Crim R 120
- Aouad and El-Zeyat v R [2011] NSWCCA 61
- King v R [2011] NSWCCA 46
- JM v R [2008] NSWCCA 254
- R v Birks (1990) 19 NSWLR 677
- R v Dodd (1991) 57 A Crim R 349
- Lawless v The Queen [1979] HCA 49; 142 CLR 659
- Green v The King [1939] HCA 4; 61 CLR 167