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Court of Criminal Appeal 30 October 2015

Chen v R

[2015] NSWCCA 277

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER UNJUSTIFIABLE DISPARITY IN NON OFFENDER PAROLE PERIODS PRACTICE AND PROCEDURE CORRECTION OF OBVIOUS ERROR IN SENTENCE

Citation: Chen v R [2015] NSWCCA 277
Court: New South Wales Court of Criminal Appeal
Date: 30 October 2015
Judges: Hidden J, Davies J, Adamson J

Background

The applicant pleaded guilty to 13 offences involving identity fraud, including dealing with identification information, possessing equipment to make false documents, and possessing identification information. The offending centred on a sophisticated operation producing high-quality false credit cards, driver's licences, and Medicare cards. A bedroom in the applicant's unit had been converted into a purpose-built identification manufacturing facility.

The applicant was sentenced in the District Court alongside a co-offender who was involved in the same broader criminal operation. The sentencing judge imposed an aggregate sentence of six years with a non-parole period of four and a half years on the applicant, and an aggregate sentence of three years with a non-parole period of 18 months on the co-offender (following a finding of special circumstances in the co-offender's case).

The applicant sought leave to appeal, arguing that the disparity between the two non-parole periods was unjustifiable and that the sentencing judge had failed to consider whether the parity principle itself required a finding of special circumstances in his case.

  • Whether the difference in non-parole periods between the applicant and the co-offender gave rise to an unjustifiable disparity under the parity principle.
  • Whether the sentencing judge erred by failing to consider whether the parity principle itself warranted a finding of special circumstances, which would have permitted a departure from the standard statutory ratio between head sentence and non-parole period.
  • Whether an error in the commencement date of the applicant's sentence required correction.

Decision

On parity: The Court of Criminal Appeal found that the marked difference in non-parole periods was justified by the distinct nature and extent of each offender's criminality and their differing personal circumstances. The applicant's offending was significantly more serious in scale and sophistication than that of the co-offender. The sentencing judge's discretion was found not to have miscarried, and no unjustifiable disparity was established.

On special circumstances: The Court rejected the argument that the parity principle, standing alone, required the sentencing judge to find special circumstances for the applicant simply because such a finding had been made for the co-offender. The differences between the two offenders' situations were sufficient to explain the variance in sentencing outcomes without any need for an equivalent adjustment in the applicant's case.

On the commencement date error: The Court identified an error in the commencement date of the applicant's sentence. The sentence had been back-dated to 10 July 2013 when it should have commenced on 10 July 2014, a clerical mistake that had consequential effects on the expiry date and the earliest parole eligibility date. Although the appeal was dismissed, the Court remitted the matter to the District Court to correct these errors under section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.
  • Matter remitted to the District Court to re-open proceedings to correct the sentencing error in the commencement date, with the following corrections:
  • Commencement date changed from 10 July 2013 to 10 July 2014.
  • Expiry date changed from 9 July 2019 to 9 July 2020.
  • Date of first eligibility for release on parole changed from 9 January 2018 to 9 January 2019.

Key Takeaways

  • A significant disparity in non-parole periods between co-offenders does not automatically constitute an unjustifiable disparity if the differences in objective criminality and subjective circumstances adequately explain the variance.
  • The parity principle does not operate mechanically: a finding of special circumstances for one co-offender does not, without more, require an equivalent finding for another whose offending and circumstances differ materially.
  • Where a sentencing court makes a finding of special circumstances for one co-offender based on that offender's particular rehabilitation needs or other individualised factors, the absence of such a finding for a co-offender with different characteristics may be entirely consistent with proper sentencing practice.
  • Clerical errors in sentencing orders, such as an incorrect commencement date, can be corrected by remitter to the sentencing court under section 43 of the Crimes (Sentencing Procedure) Act 1999 (NSW), even where the substantive appeal is dismissed.
  • In dismissing the appeal on its merits, the Court of Criminal Appeal confirmed that the scale and sophistication of an offender's role within a larger criminal operation are relevant to explaining why sentences for co-offenders may legitimately differ.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192J, 192K, 193C, 255, 256
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 32, 35A, 43, 44
- Criminal Appeal Act 1912 (NSW), s 12

Cases:
- Edwards v R [2009] NSWCCA 199
- Green v The Queen [2011] HCA 49
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- R v Do [2005] NSWCCA 209
- R v Swan [2006] NSWCCA 47
- Tatana v R [2006] NSWCCA 398
- Zreika v R [2012] NSWCCA 44