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Court of Criminal Appeal 14 September 2012

Hancock v R

[2012] NSWCCA 200

DrugsFraud & dishonesty
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE FEDERAL OFFENCES AND STATE OFFENCES

Citation: Hancock v R [2012] NSWCCA 200
Court: NSW Court of Criminal Appeal
Date: 14 September 2012
Judges: McClellan CJ at CL, RA Hulme J, Schmidt J (reasons delivered by Schmidt J)

Background

The applicant was the admitted head of a crime syndicate engaged in the manufacture and distribution of false identity documents, including drivers licences, Medicare cards, and credit cards. The syndicate generated earnings exceeding $100,000 for the applicant, who coordinated a network of producers, supervisors, and shoppers operating across Sydney and Melbourne. He pleaded guilty in the Local Court to ten offences, nine connected to the syndicate and one unrelated offence of supplying 55.1 grams of methylamphetamine.

The applicant was sentenced in the District Court to an effective total sentence of 9 years and 7 months, with a non-parole period of just under 7 years and 2 months. The sentence commenced on 1 July 2009, with parole eligibility from 28 August 2016 and a sentence expiry date of 27 February 2019. Four additional offences of dishonestly dealing in personal financial information were taken into account at sentencing.

The applicant sought leave to appeal his sentence to the Court of Criminal Appeal, advancing eight grounds of appeal. The Crown opposed leave on all grounds.

  • Whether the sentencing process miscarried
  • Whether the sentences imposed were unusually harsh and severe
  • Whether the sentencing judge commenced the sentencing exercise at an excessive level
  • Whether the sentencing judge made sufficient allowance for the applicant's assistance to authorities
  • Whether the sentencing judge maintained parity between the applicant and co-offenders
  • Whether the sentencing judge adequately took delay into account
  • Whether the sentencing judge properly applied the principle of totality (the requirement to ensure an aggregate sentence is not disproportionate to the overall criminality)
  • Whether the sentencing judge erred in declining to find special circumstances to vary the standard ratio between the non-parole period and the total sentence

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal on all grounds. Schmidt J, with whom McClellan CJ at CL and RA Hulme J agreed, found no error in the sentencing judge's approach across any of the eight grounds advanced.

The Court rejected the submission that the sentencing judge commenced at an excessive level or that the overall sentence was unusually harsh and severe, given the applicant's role as the head of the syndicate and the breadth and seriousness of the offending. The Court also found that the sentencing judge had made adequate allowance for the assistance the applicant provided to authorities and had properly addressed parity in light of the differing roles and culpability of co-offenders. Delay was also found to have been considered appropriately.

On the totality argument, the Court was satisfied that the sentencing judge had not overlooked the impact of concurrency and accumulation when constructing the sentence. The overall minimum period to be served before parole eligibility was characterised as the product of a considerably lenient approach rather than an excessive one.

Regarding special circumstances, the Court reaffirmed that a finding of special circumstances is discretionary and that courts are not obliged to make such a finding simply because circumstances capable of supporting it exist. Given the applicant's parole supervision period of 2 years and 6 months, and the sentencing judge's conclusions on rehabilitation prospects, the Court found no error in declining to vary the standard non-parole ratio. Any further reduction would have failed to reflect the objective seriousness of the drug offence.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A finding of special circumstances under the NSW sentencing regime is a discretionary finding; the existence of circumstances capable of supporting such a finding does not compel a court to reduce the non-parole period below the standard statutory ratio.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a non-parole period must adequately reflect the objective seriousness of the offence and the necessary punitive and deterrence considerations, and cannot be reduced to a point that fails to do so.
  • Parity between co-offenders does not require identical sentences; differences in role and culpability within a syndicate justify differences in sentence, and a sentencing court assessing parity may properly distinguish the head of a syndicate from subordinate participants.
  • The principle of totality requires a sentencing court to ensure that an aggregate sentence is not disproportionate to overall criminality; the Court found no breach of this principle where the judge demonstrably considered the interplay of concurrent and accumulated terms.
  • Delay in sentencing is a mitigating factor, but its weight remains a matter for the sentencing judge's discretion; the Court of Criminal Appeal will not intervene unless the resulting sentence is shown to be manifestly excessive.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193B(2), 302
- Crimes Act 1914 (Cth)
- Criminal Code Act 1995 (Cth), ss 400.4(1), 480.4
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 25(1)

Cases
- Caristo v R [2011] NSWCCA 7
- Danial v R [2008] NSWCCA 15
- Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321
- Green v R [2011] HCA 49; (2011) 244 CLR 462
- Johnson v R [2004] HCA 15; (2004) 205 ALR 346
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Power v The Queen [1974] HCA 26; 131 CLR 623
- R v Ma [2004] NSWCCA 92; (2004) 145 A Crim R 434
- R v MAK; R v MSK [2006] NSWCCA 381; (2006) 167 A Crim R 159
- R v Suares-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- R v TAE [2005] NSWCCA 29
- R v Welden [2002] NSWCCA 475; (2002) 136 A Crim R 55