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Court of Criminal Appeal 27 April 2018

Kim v R

[2018] NSWCCA 68

Fraud & dishonesty
CRIME APPEAL AGAINST SENTENCE S 233BABAD(1) CUSTOMS ACT 1901 (CTH) S 400.3 CRIMINAL CODE (CTH) PARITY WITH SENTENCE IMPOSED UPON CO OFFENDER

Citation: Kim v R [2018] NSWCCA 68
Court: Court of Criminal Appeal, NSW
Date: 27 April 2018
Judges: Basten JA, Rothman J, Garling J

Background

The applicant pleaded guilty to two federal offences: importing tobacco products with intent to defraud the revenue (s 233BABAD(1) of the Customs Act 1901 (Cth)), and dealing with money of more than $1 million that could become an instrument of crime (s 400.3 of the Criminal Code (Cth)). A co-offender, sentenced at the same hearing, was convicted of the same tobacco importation offence and a lesser money-dealing offence involving approximately $302,688.

The sentencing judge imposed 2 years 3 months on count one and 5 years on count two for the applicant, with the second sentence commencing 18 months after the first. The co-offender received 2 years 3 months on his first count and 3 years on his second count, with the second sentence commencing only 6 months after the first.

The applicant sought leave to appeal on the basis of unwarranted sentencing disparity between himself and the co-offender. The Court also identified a structural error in the way the non-parole period had been fixed.

  • Whether the difference in accumulation periods between the applicant's and co-offender's sentences created an unjustified disparity giving rise to a justifiable sense of grievance, contrary to parity principles.
  • Whether the sentencing judge correctly fixed the non-parole period in accordance with s 19AB of the Crimes Act 1914 (Cth), which requires a single non-parole period for multiple federal sentences that, in aggregate, exceed three years.
  • Whether the non-parole period was correctly structured to commence from the start of the first sentence.

Decision

The Court granted leave to appeal and found that the 18-month accumulation period applied to the applicant, compared with 6 months applied to the co-offender, was unexplained and unjustified. Because both offenders were equally culpable in respect of their first offences, there was no principled basis for the applicant serving three times the non-concurrent period on that count. The proper inference was that the disparity resulted from a mistake rather than any deliberate application of sentencing principle.

Rothman J added that equal justice requires differences in sentences imposed on co-offenders to rationally reflect differences in the relevant circumstances of the offence and offender. Where the difference is irrational or arbitrary, regardless of how it arose, it produces a justifiable sense of grievance that must be corrected.

The Court also identified a separate structural error. Under s 19AB of the Crimes Act 1914 (Cth), where two or more federal sentences are imposed at the same sitting and the aggregate exceeds three years, the court must fix a single non-parole period. That period must commence from the first day of the first sentence, not from a later point. The sentencing judge had fixed the non-parole period in a way that failed to comply with this requirement, effectively causing it to commence after the start of the first sentence.

The Court emphasised that this structural error did not invalidate the sentences (by operation of s 19AH(1)(a) of the Crimes Act 1914 (Cth)), but it was necessary to correct the structure on re-sentencing. The individual sentence lengths were not disturbed, as no complaint was made about the head sentences themselves and the Court found them appropriate.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed; original sentences quashed.
  • Applicant re-sentenced as follows:
  • Count 1 (defrauding the revenue): 2 years and 3 months imprisonment commencing 24 May 2016 (with the schedule offence of making a false statement regarding a foreign travel document taken into account).
  • Count 2 (dealing with money): 5 years imprisonment commencing 24 November 2016 and expiring 23 November 2021.
  • Single non-parole period of 3 years and 10 months fixed for the aggregate of both sentences, commencing 24 May 2016 and expiring 23 March 2020.
  • First eligible parole date: 23 March 2020.

Key Takeaways

  • Under s 19AB of the Crimes Act 1914 (Cth), where two or more federal sentences are imposed at the same sitting and their aggregate exceeds three years, a court must fix a single non-parole period covering all sentences, and that period must commence from the start of the first sentence.
  • A disparity between co-offenders' sentences need not arise from an identifiable legal error in reasoning; an unexplained discrepancy in accumulation that produces an irrational differential is itself sufficient to establish a justifiable sense of grievance warranting correction on appeal.
  • Where the difference in head sentences adequately reflects the difference in the co-offenders' levels of culpability, further disparity introduced through inconsistent accumulation periods is not justified by reference to the totality principle.
  • Structural non-compliance with Division 4 of Part 1B of the Crimes Act 1914 (Cth) does not invalidate a federal sentence (s 19AH(1)(a)), but requires correction when the court proceeds to re-sentence.
  • Parity principles require that differences in sentences imposed on co-offenders rationally reflect differences in the relevant circumstances of the offence and offender; where no such rational basis exists, the requirement of equal justice is not satisfied.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16, 16BA, 19AB, 19AC, 19AH; Division 4, Part 1B
- Criminal Code (Cth), s 400.3
- Customs Act 1901 (Cth), s 233BABAD
- Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 18

Cases:
- Xiao v R [2018] NSWCCA 4
- Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 244 CLR 462
- Postiglione v The Queen [1997] HCA 26; (1997) 189 CLR 295
- Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
- Commonwealth Director of Public Prosecutions v Afiouny [2014] NSWCCA 176
- Eriyo v R [2015] NSWCCA 16
- Cameron v R [2017] NSWCCA 229
- Myles v R [2017] NSWCCA 266
- Rees v R [2012] NSWCCA 47
- R v Tang (2009) 23 VR 332; [2009] VSCA 182
- Cooper v The Queen [2012] VSCA 32
- Nicholls v The Queen [2016] VSCA 300