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Court of Criminal Appeal 28 July 2011

Jaturawong v Regina

[2011] NSWCCA 168

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE APPEAL AGAINST SENTENCE ACCESSORIAL LIABILITY WHETHER SENTENCE IMPOSED ON FIRST CO OFFENDER

Citation: Jaturawong v Regina [2011] NSWCCA 168
Court: NSW Court of Criminal Appeal
Date: 28 July 2011
Judges: Beazley JA; Hall J; Harrison J

Background

The appellant was a driving instructor who pleaded guilty to seven counts of being an accessory before the fact to the common law offence of Misconduct in Public Office. The principal offender, a senior manager at the Botany Motor Registry of the RTA, had corruptly assisted driving licence applicants by improperly conducting tests, revealing test routes in advance, and falsely recording that practical tests were not required. The appellant funnelled clients to the scheme and paid a portion of the fees he collected to an intermediary, who in turn paid the principal offender.

Both the appellant and the principal offender were sentenced on the same day in the District Court. The principal offender was also convicted of separate offences, including corruptly receiving a reward under the Crimes Act 1900, and those additional matters were taken into account in his overall sentence.

The appellant appealed against the sentence imposed on him, arguing that the sentences for his accessorial offences were disproportionately severe compared to those imposed on the principal offender for the primary Misconduct in Public Office offence.

  • Whether the sentence imposed on the principal offender gave rise to a justifiable sense of grievance on the part of the appellant, such that the sentencing judge erred in principle.
  • How to identify the appropriate reference point for sentencing on a common law offence (Misconduct in Public Office) and the corresponding accessory offence, where no statutory maximum exists.
  • Whether an aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 was appropriate in the circumstances.

Decision

Beazley JA (Hall J and Harrison J agreeing) found that the sentencing judge had erred by imposing a disproportionately severe sentence on the appellant relative to the principal offender's sentence for the Misconduct in Public Office offence. Although the principal offender received a longer total effective sentence overall, that was because he was also sentenced for separate offences including a corrupt rewards charge under s 249B of the Crimes Act. When the sentences for the Misconduct in Public Office offence were compared in isolation, the appellant had received a longer non-parole period and a longer balance of term than the principal offender, despite the appellant's role being an accessorial one.

The Court confirmed that the correct comparator was the principal offender's sentence for the principal offence to which the appellant had been an accessory, not the principal offender's aggregate sentence across all offences. On that basis, the appellant's sentence gave rise to a justifiable sense of grievance consistent with the principles in Lowe v R (1984) 154 CLR 606.

The Court also confirmed that, because Misconduct in Public Office is a common law offence with no statutory maximum, the sentencing court looks to any corresponding statutory offence as a reference point. Both parties accepted that the 7-year maximum for offences under Part 4A of the Crimes Act was the appropriate benchmark, and that the same benchmark applied to the accessory offences by virtue of s 346 of the Crimes Act.

On resentencing, the Court set an aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999, applying the same guilty plea discount as the sentencing judge and taking into account the appellant's good conduct and rehabilitation efforts in custody.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentences imposed by Berman DCJ on 14 May 2010 quashed.
  • Pursuant to s 53A(1) of the Crimes (Sentencing Procedure) Act 1999, the appellant sentenced to an aggregate non-parole period of 16 months commencing 14 May 2010 and expiring 13 September 2011, with an additional term of 11 months expiring 13 August 2012.

Key Takeaways

  • When sentencing a co-offender for an accessory offence, the appropriate comparator for parity purposes is the principal offender's sentence for the specific principal offence, not the principal offender's total aggregate sentence across multiple charges.
  • A justifiable sense of grievance arose here because the appellant, an accessory, received a longer non-parole period and longer balance of term for the accessory offence than the principal offender received for the very offence he had assisted.
  • Misconduct in Public Office is a common law offence with a penalty at large; sentencing courts look to any analogous statutory offence as a reference point, with Part 4A of the Crimes Act (maximum 7 years) treated as the benchmark in this case.
  • Under s 346 of the Crimes Act 1900, an accessory before the fact is liable to the same punishment as the principal offender, meaning the same statutory reference point applies to both.
  • An aggregate sentence under s 53A(1) of the Crimes (Sentencing Procedure) Act 1999 was appropriate where multiple offences involved conduct of the same type and formed part of a continuous course of conduct.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 249B, 346, Part 4A, Part 9
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW)
- Criminal Procedure Act 1986 (NSW), s 166
- Independent Commission Against Corruption Act 1988 (NSW), s 80(c)

Cases
- Lowe v R [1984] HCA 46; (1984) 154 CLR 606
- R v Hokin, Burton and Peisley (1922) 22 SR (NSW) 280
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Nguyen v R [2008] NSWCCA 308
- R v Boney [2001] NSWCCA 432
- R v Doggett (Court of Criminal Appeal, 24 March 1996, unreported)
- R v Ilbay [2000] NSWCCA 251
- R v McNaughton [2006] NSWCCA 242
- R v Pan [2005] NSWCCA 114
- R v Scott [2005] NSWCCA 152