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Court of Criminal Appeal 10 July 2012

RAJAGOPAL Hariharan v R

[2012] NSWCCA 148

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL ORDERS ON APPEAL ISSUED EX TEMPORE REASONS ISSUED MANIFEST EXCESS LATENT ERROR

Citation: RAJAGOPAL Hariharan v R [2012] NSWCCA 148
Court: NSW Court of Criminal Appeal
Date: 10 July 2012
Judges: McClellan CJ at CL, Rothman J, Davies J

Background

The appellant was convicted in the District Court on four counts of using a false instrument with intent (contrary to s 300(2) of the Crimes Act 1900) and one count of recklessly dealing with the proceeds of crime (contrary to s 193B(3) of the Crimes Act 1900). The offending involved the use of fraudulent blank cards at ATMs and possession of approximately $9,670 in cash linked to those activities. A Form 1 notice covering eight further counts of using a false instrument was also taken into account on the principal count.

The appellant had no prior criminal history in Australia or elsewhere. He was assessed as having been financially vulnerable at the time and had experienced significant hardship and persecution in Sri Lanka. Psychological reports were placed before both the sentencing court and the Court of Criminal Appeal.

The District Court sentenced the appellant to an overall non-parole period of two years and ten months, with a balance of term of a further twelve months. The appellant sought leave to appeal out of time, contending the sentences were manifestly excessive.

  • Whether an extension of time to file the notice of appeal should be granted
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether the sentencing judge erred in failing to give appropriate effect to the availability of summary disposal
  • Whether the sentencing judge erred in limiting the application of a special circumstances finding to Count 1 only
  • Whether the overall sentences imposed were manifestly excessive

Decision

The Court of Criminal Appeal granted the extension of time. The Crown could point to no prejudice caused by the delay, and the Court held that, while an extension is not a formality, the absence of any identifiable prejudice supported granting it.

On the substantive appeal, the appellant treated the first three grounds as particulars of manifest excess rather than as independent grounds. The Court acknowledged this approach created some complexity, since departure from a statistical range does not alone warrant intervention. An appellate court reviewing a sentencing discretion must identify error, whether express or latent. Latent error arises where the outcome itself satisfies the court that sentencing principles were misapplied, even if no specific error can be pinpointed in the judge's reasoning.

Rothman J found that the objective gravity of the offending was at the lower end of the range. The sentencing judge appears to have impermissibly allowed the broader organised criminal enterprise, of which the appellant was a part, to inflate the assessment of the appellant's individual culpability beyond what his actual role warranted. Although no express error in the statement of principle could be identified, the resulting sentence fell outside the available range for an offender in these circumstances.

On that basis, the Court allowed the appeal, quashed the District Court sentences, and resentenced the appellant. The Court also directed the appellant's immediate release to parole. A calculation error in the original orders as to the expiry date of the total term for Count 1 was corrected in a subsequent amendment, changing the expiry from 31 December 2012 to 30 November 2012.

Orders Made

  • Extension of time to appeal granted
  • Leave to appeal granted and appeal allowed
  • Sentences imposed in the District Court quashed
  • Counts 2 to 4: fixed term of 10 months' imprisonment, commencing 27 November 2009, expiring 26 September 2010
  • Count 5: fixed term of 18 months' imprisonment, commencing 27 November 2009, expiring 26 May 2011
  • Count 1 (with Form 1 matters): non-parole period of 2 years commencing 1 March 2010, expiring 29 February 2012, with a total term of 2 years and 9 months expiring 30 November 2012 (as corrected)
  • Direction that the appellant be released to parole on 1 March 2012

Key Takeaways

  • Latent error in sentencing arises where, although no express misstatement of principle appears in the sentencing judge's reasons, the outcome itself demonstrates that principles were misapplied or not properly applied, as confirmed by reference to House v The King (1936) 55 CLR 499.
  • A conviction for using a false instrument as part of a larger organised criminal enterprise does not, without more, justify elevating the objective gravity of an individual offender's conduct beyond what their actual role warranted.
  • Under the principles in Hili v The Queen (2010) 242 CLR 520 and Wong v R (2001) 207 CLR 584, sentencing statistics and tables may illuminate the available range but cannot be applied mechanically, and a sentence falling outside statistical norms is not automatically appealable on that basis alone.
  • In dismissing the Crown's opposition to the extension of time, the Court confirmed that the absence of any identifiable prejudice to the respondent is a significant factor in favour of granting an extension, even though such extensions are not to be treated as automatic.
  • Calculation errors in orders issued ex tempore can be corrected when the court's attention is subsequently drawn to them, with the corrected order substituted for the erroneous one.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193B(3), 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50(1)

Cases
- House v The King (1936) 55 CLR 499
- Wong v R (2001) 207 CLR 584
- Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520