Citation: Dwayhi v R; Bechara v R [2011] NSWCCA 67
Court: NSW Court of Criminal Appeal
Date: 5 April 2011
Judge(s): Whealy JA, Hidden J, Johnson J
Background
Three offenders were separately charged and sentenced in connection with a scheme to lodge false Business Activity Statements (BAS) with the Australian Taxation Office (ATO) in 2005 and 2006, dishonestly obtaining GST refunds totalling hundreds of thousands of dollars. One offender, an ATO verification officer, abused his position to process the fraudulent returns. Two businessmen submitted or benefited from the sham BAS claims.
Each offender was sentenced by a different District Court judge at different times. The ATO employee was sentenced in August 2008, one businessman after a jury trial in August 2009, and the third offender following a guilty plea in February 2010. The sentences imposed varied significantly across the three men.
Before the Court of Criminal Appeal, the ATO employee and the businessman sentenced in 2009 each argued they had a legitimate sense of grievance about their sentences by comparison with the sentence received by the third offender. Both invoked the parity principle.
Legal Issues
- Whether each applicant had established a legitimate (objective) sense of grievance arising from a marked and unjustifiable disparity between their sentence and that imposed on the third offender.
- Whether the sentencing judge for the ATO employee erred in fixing the non-parole period.
- What approach courts and prosecutorial bodies should take when sentencing related offenders.
Decision
The court confirmed the established formulation of the parity principle: the test is objective, not subjective. What must be demonstrated is not that an offender feels aggrieved, but that a reasonable person looking at the overall picture would regard the disparity as marked and unjustifiable. Minor or explicable differences in sentence do not suffice.
The court dismissed the ATO employee's appeal. His role involved a gross breach of trust as a public official, which distinguished his position meaningfully from that of the third offender, who was an outside businessman and had pleaded guilty at an early stage. The court found the disparity between their sentences was explicable by these material differences, and no legitimate sense of grievance was established.
The court allowed the appeal by the businessman sentenced in August 2009. Comparing his sentence with that of the third offender, who had obtained a larger financial benefit yet received a considerably shorter sentence, the court found the disparity was marked and unjustifiable in the circumstances. The sentences imposed on him in the District Court were quashed and he was resentenced to shorter terms.
The court also took the opportunity to restate, in firm terms, the strong desirability that related offenders be sentenced by the same judge at the same time. The facts of these cases illustrated the complications that arise when that does not occur, and the court called on courts and prosecutorial bodies to actively promote this practice.
Orders Made
Dwayhi:
- Leave to appeal granted; appeal dismissed.
Bechara:
- Leave to appeal granted.
- Sentences imposed in the District Court on 21 August 2009 quashed.
- Resentenced as follows:
- Count 1: imprisonment for three years commencing 21 August 2009, expiring 20 August 2012.
- Count 2: imprisonment for two years commencing 21 August 2009, expiring 20 August 2011.
- To be released on 20 August 2011 on a recognizance release order (sum of $1,000) to be of good behaviour for the balance of the sentence.
- Reparation order of $101,632.00 in favour of the Commissioner of Taxation confirmed.
Key Takeaways
- The parity principle requires an objective assessment: the question is whether a reasonable person, looking at the overall circumstances, would regard the disparity between sentences as marked and unjustifiable, not merely whether the offender feels aggrieved.
- Where meaningful factual distinctions exist between co-offenders, such as a gross breach of public trust by one and an early guilty plea by another, courts may find those distinctions justify significant differences in sentence, defeating a parity claim.
- In allowing Bechara's appeal, the Court of Criminal Appeal applied the principle that an unjustifiable disparity can constitute a sentencing error even where the offenders were charged differently and sentenced by different judges at different times.
- The Court of Criminal Appeal reiterated, in strong terms, that related offenders should ordinarily be sentenced by the same judge at the same time, and called on courts and prosecutorial bodies to actively promote this practice to avoid parity complications arising at the appellate level.
- Sentencing an ATO employee who corruptly processed fraudulent refunds warranted treatment as a case involving a gross breach of trust, a factor that materially elevated the appropriate sentence relative to outside co-offenders.
Legislation and Cases Referenced
Legislation:
- Criminal Code 1995 (Cth), ss 134.2(1), 145.1(1), 400.4(1), 478.1(1)
- Crimes Act 1914 (Cth), ss 16BA, 19AB, 19AC, 21B
- Criminal Appeal Act 1912
Cases:
- R v Kertebani; Kertebani v R [2010] NSWCCA 221
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- R v Wei Pan [2005] NSWCCA 114
- Lewins v R [2007] NSWCCA 189
- Nguyen v R [2008] NSWCCA 308
- Jimmy v R [2010] NSWCCA 60; 240 FLR 27
- Gurney v R; Willetts v R [2011] NSWCCA 48
- England v R; Phanith v R [2009] NSWCCA 274
- R v Li [2005] NSWCCA 154
- R v Wing Cheong Li [2010] NSWCCA 125
- Pavicevic v R [2010] ACTCA 25
- R v Nguyen; R v Pham [2010] NSWCCA 238
- R v Swan [2006] NSWCCA 47
- OM v R [2009] NSWCCA 267
- R v Ismunandar [2002] NSWCCA 477; 136 A Crim R 206
- R v Mercieca [2004] VSCA 170
- R v Rodden [2005] VSCA 24
- R v Spizzerri [2001] VSCA 49