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Court of Criminal Appeal 22 June 2018

Ping He v R

[2018] NSWCCA 123

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE SUBJECTIVE FACTORS PARITY SENTENCED WITH CO OFFENDER ON COMMON PRINCIPAL CHARGES

Citation: Ping He v R [2018] NSWCCA 123
Court: NSW Court of Criminal Appeal
Date: 22 June 2018
Judge(s): Leeming JA; Bellew J; Fagan J

Background

The appellant pleaded guilty in the District Court to three counts of dealing with proceeds of crime knowing them to be proceeds, contrary to s 193B(2) of the Crimes Act 1900 (NSW). The offences, committed in August and October 2014, involved receiving and redistributing large sums of cash (totalling around $860,000 across the three counts) at her Sydney apartment, collecting a commission on each transaction. Four further offences were taken into account on a Form 1, including drug supply, two drug possession charges, and knowingly participating in a criminal group.

Judge Sweeney sentenced the appellant in the District Court alongside two co-offenders, including James Zhu, who pleaded guilty to identical charges arising from the same facts. The appellant received an aggregate sentence of five years with a non-parole period of three years, which was the same aggregate sentence as Zhu. The sentencing judge found a number of favourable subjective circumstances in the appellant's case, including genuine remorse, a low risk of reoffending, depression and anxiety, a chronic spinal condition, and limited English.

The appellant sought leave to appeal, arguing that the sentencing judge had failed to give effect to those favourable findings, and that the identical aggregate sentence imposed on Zhu despite the appellant's stronger subjective case gave her a justifiable sense of grievance.

  • Whether the sentencing judge failed to give meaningful effect to her findings on the appellant's subjective case in fixing the aggregate sentence.
  • Whether the identical aggregate sentence imposed on both the appellant and Zhu gave rise to a "justifiable sense of grievance" under the parity principle, given the appellant's more favourable subjective circumstances.
  • How the parity analysis should be conducted where indicative sentences differ between co-offenders but the aggregate sentences are the same.

Decision

On the first ground, the Court of Criminal Appeal found no error. The Court noted that the sentencing judge's findings on the appellant's subjective circumstances were in several respects generous: the appellant had not given oral evidence to substantiate her remorse and had instead relied on self-reports to a psychologist, and the sentencing judge treated a prior dishonesty conviction as though it were no conviction at all. The Court found no basis to conclude that a still greater reduction was warranted.

On the parity ground, the Court confirmed that the correct approach is to compare the actual aggregate sentences imposed, not the indicative sentences. The indicative sentences can be considered as a guide to the sentencing judge's approach, but they are not themselves amenable to appeal and their opacity makes a full analysis of concurrence and accumulation impossible.

Applying that approach, the Court found that the equivalence of the two aggregate sentences was reasonably explained by the greater level of offending on the appellant's Form 1. The appellant's Form 1 included four offences, compared to fewer for Zhu, and the drug-related charges attracted an additional level of severity in fixing the indicative sentence for count 2. The Court concluded there was no proper basis for the appellant to feel a justifiable sense of grievance.

Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal is granted.
  • The appeal is dismissed.

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the parity principle requires a comparison of actual aggregate sentences, not indicative sentences, when co-offenders are sentenced on the same charges under the aggregate sentencing regime.
  • Indicative sentences are not themselves amenable to appeal; even where they are excessive, it does not automatically follow that the aggregate sentence is excessive.
  • The opacity of the aggregate sentencing regime, where indicative sentences carry no start or end dates or non-parole periods, makes a full parity analysis inherently incomplete, and the Court acknowledged this limitation explicitly.
  • More favourable subjective circumstances do not necessarily require a lower sentence than a co-offender's where the difference is reasonably explained by a greater volume or seriousness of offending on a Form 1.
  • A sentencing judge's acceptance of remorse based solely on a psychologist's second-hand account, without the offender giving oral evidence, was characterised by the Court as a generous exercise of the sentencing discretion rather than a mandatory baseline.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T(1A), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 10, 33, 44, 53A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Drug Misuse and Trafficking Act 1985 (NSW), ss 10(1), 25(1)

Cases:
- DS v R [2014] NSWCCA 267
- England v R [2009] NSWCCA 274
- JM v R [2014] NSWCCA 297
- Kerr v R [2016] NSWCCA 218
- Tuivaga v R [2015] NSWCCA 145
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64
- Zreika v R [2016] NSWCCA 177