Citation: R v Connell [2013] NSWCCA 155
Court: Court of Criminal Appeal
Date: 3 July 2013
Judge(s): Hoeben CJ at CL; Harrison J; Beech-Jones J
Background
The respondent pleaded guilty to 24 counts arising from a protection money extortion scheme targeting the owner of a tattoo parlour at Raymond Terrace. The scheme began in May 2010 when members of the Rebels Motorcycle Club entered the premises, threatened the victim, and demanded $200 per week. The respondent was not involved in making those initial threats.
The respondent's involvement commenced on 13 May 2010, when he attended the victim's shop to collect payments and identified himself as the person sent to pick up the protection money. He continued attending on twelve further occasions until 7 September 2010, receiving cash payments from the victim, who on at least one occasion was visibly distressed. The scheme only ceased when police stopped a vehicle in which the respondent was travelling and found cash, including marked money supplied by officers to the victim earlier that day.
The 24 counts comprised 13 charges of demanding money with menaces with intent under s 99(2) of the Crimes Act 1900 (maximum 14 years) and 11 charges of knowingly dealing with the proceeds of crime under s 193B(2) of the same Act (maximum 15 years). The District Court imposed an aggregate sentence of 3 years and 3 months, with a non-parole period of 1 year and 9 months. The Director of Public Prosecutions appealed under s 5D of the Criminal Appeal Act 1912, arguing the sentence was manifestly inadequate.
Legal Issues
- Whether the sentencing judge failed to assess the criminality of each individual offence when imposing an aggregate sentence under s 53A of the Crimes (Sentencing Procedure) Act 1999
- Whether imposing identical penalties for the money laundering counts and the demand with menaces counts was in error
- Whether the sentencing judge failed to account for relevant aggravating features, including the respondent's role in an organised criminal enterprise
- Whether the Crown could properly rely on the parity principle to argue the sentence was inadequate
- Whether the sentencing judge gave insufficient weight to general deterrence
- Whether the respondent's bail conditions were wrongly treated as quasi-custody
- Whether the extent of the special circumstances finding was erroneous
- Whether the aggregate sentence was manifestly inadequate
Decision
Hoeben CJ at CL, with Harrison J and Beech-Jones J agreeing, dismissed the Crown appeal on all grounds.
On the question of the aggregate sentence methodology, the Court found that the primary judge had adequately assessed the overall criminality of the offending. The Court also found no error in the identical treatment of the money laundering and demand with menaces counts, given that the two categories of offending were substantially intertwined: each money laundering count arose directly from a corresponding demand count, making significant overlap between the two unavoidable.
The Court rejected the Crown's reliance on the parity principle to support the appeal. Parity is a principle designed to protect co-accused from unjustified disparity, not a tool for the prosecution to elevate sentences by pointing to a co-accused who received a heavier term. The Court found this use of the principle was inappropriate in a Crown appeal context.
On the critical question of manifest inadequacy, the Court accepted that while the aggregate sentence might be regarded by some as lenient, it remained within the appropriate range. Key factors included that the respondent did not initiate the extortion, joined the enterprise after the initial threats had been made by others, and never personally uttered threats or menaces to the victim. Combined with the considerable overlap between the offences and the respondent's difficult personal history, the Court was not persuaded that the sentencing discretion had miscarried in the manner required by House v R and Markarian v R.
Orders Made
- The Crown appeal is dismissed.
Key Takeaways
- In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that intervention on a sentence appeal requires more than a conclusion that a different exercise of discretion was available: the sentence must be unreasonable or plainly unjust in accordance with the principles in House v R and Markarian v R.
- Where money laundering offences arise directly from corresponding demand offences, substantial overlap between the two categories is to be expected, and this properly informs how an aggregate sentence is structured under s 53A of the Crimes (Sentencing Procedure) Act 1999.
- The parity principle exists to protect co-accused from unjustified sentencing disparity and is not available as a mechanism for the Crown to argue that a respondent's sentence should be increased by reference to a heavier sentence imposed on another offender.
- A defendant who joins an ongoing criminal enterprise after the initial threats have been made, and who never personally utters threats or menaces, occupies a lesser role that is a legitimate sentencing consideration, even within an organised extortion scheme.
- Bail conditions may, in appropriate circumstances, be taken into account as a form of restriction on liberty when assessing sentence, and the sentencing court's treatment of this consideration will only attract appellate intervention if a clear error is established.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 99(2), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), s 5D
Cases:
- Brent Redfern v R [2012] NSWCCA 178
- Delaney v R; R v Delaney [2013] NSWCCA 150
- House v R [1936] HCA 40; 55 CLR 499
- Jiang v R [2010] NSWCCA 277
- Lowndes v R [1999] HCA 29; 195 CLR 665
- Markarian v R [2005] HCA 25; 228 CLR 357
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Nykolyn [2012] NSWCCA 219