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Court of Criminal Appeal 11 November 2020

Eakin v R

[2020] NSWCCA 294

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL S ENIOR AUSTRALIAN BORDER FORCE OFFICER ACCEPTANCE OF A BRIBE OFFENDER’S SENTENCE REDUCED ON APPEAL WHETHER ERRONEOUS SENTENCE OF CO

Citation: Eakin v R [2020] NSWCCA 294
Court: NSW Court of Criminal Appeal
Date: 11 November 2020
Judges: Basten JA; Rothman J; Price J

Background

The applicant was a senior Australian Border Force officer who, exploiting his specialist knowledge of cargo inspection procedures, ensured that a container of tobacco products passed through customs without inspection. The evasion of duty exceeded $6 million. He received $100,000 in cash from his co-offender, a former customs colleague who had been recruited by a criminal syndicate and who in turn recruited the applicant.

Both the applicant and his co-offender were convicted on guilty pleas in the District Court. The co-offender received an aggregate sentence of 5 years 6 months imprisonment with a non-parole period of 3 years 3 months. The applicant received an aggregate sentence of 4 years with a non-parole period of 2 years.

The co-offender successfully appealed her sentence. The Court of Criminal Appeal reduced it to 4 years 6 months with a non-parole period of 2 years 6 months, on the basis that the sentencing judge had incorrectly rejected her prior good character as a mitigating factor. That reduction narrowed the gap between the two sentences. The applicant then sought leave to appeal his own sentence, arguing that the narrowed gap gave rise to a justifiable sense of grievance for the purposes of the parity principle.

  • Whether an erroneous sentence that is overturned on appeal can generate, in a co-offender, the justifiable sense of grievance necessary to attract appellate intervention on parity grounds.
  • Whether the parity principle applies in the federal sentencing context under the Crimes Act 1914 (Cth).
  • Whether the applicant's own sentence was independently manifestly excessive or otherwise attended by error.
  • Whether any reduction in the non-parole period would produce a manifestly inadequate sentence.

Decision

The central question was whether the parity principle could be invoked by an offender who received the lesser sentence, on the basis that a co-offender's sentence had been reduced on appeal due to error. Basten JA answered that question firmly in the negative. His Honour reasoned that the parity principle exists to guard against unjustified disparity, not to preserve a particular sentencing relationship. Where a co-offender's sentence has been corrected to remedy an error, the resulting adjustment cannot provide a foundation for a justifiable grievance in the offender who received the lesser sentence.

Basten JA also clarified the status of his own earlier remarks in Lin v R [2018] NSWCCA 13, which had suggested that a reduced co-offender sentence could compel intervention in favour of the less-sentenced offender. He acknowledged that no other member of the Court had agreed with that observation in Lin, and that it had no prior authority behind it. Accordingly, Lin was not treated as authority for that proposition.

Rothman J examined the parity principle in depth, including its application to federal offending under s 16A of the Crimes Act 1914 (Cth). His Honour confirmed that the principle applies in the federal context, drawing on the requirement that a sentence be "of a severity appropriate in all the circumstances." He agreed, however, that an erroneous co-offender sentence cannot generate a legitimate sense of grievance. The comparator must be a correctly imposed sentence; otherwise, the principle would operate to replicate error rather than correct it.

Price J reviewed the procedural history and the sentences imposed on each offender in detail. His Honour agreed with Basten JA and Rothman J that the appeal must be dismissed. The applicant's original sentence appropriately reflected his culpability, particularly his deliberate abuse of his position of trust as a Commonwealth officer, and no independent error in that sentence was established. The Court also found that any reduction in the non-parole period below two years would produce a manifestly inadequate outcome.

Orders Made

  • The application for leave to appeal against sentence was refused.
  • The applicant's existing sentence was confirmed: an aggregate term of 3 years 6 months commencing 8 July 2019 and expiring 7 January 2023, with a non-parole period of 2 years expiring 7 July 2021.

Key Takeaways

  • An erroneous co-offender sentence that has been corrected on appeal cannot ground a justifiable sense of grievance for the purposes of the parity principle. Permitting such a claim would risk transplanting the original error into a second sentence rather than eliminating it.
  • The parity principle, established in Lowe v The Queen and Green v The Queen; Quinn v The Queen, applies to federal offending through the requirement in s 16A(1) of the Crimes Act 1914 (Cth) that a sentence be appropriate in all the circumstances.
  • Basten JA expressly acknowledged that his earlier remarks in Lin v R [2018] NSWCCA 13, suggesting that a reduced co-offender sentence could compel intervention in favour of the lesser-sentenced offender, were not supported by any other member of that Court and carried no prior authority. That passage from Lin was not endorsed.
  • A valid parity comparison requires a correctly imposed sentence as the reference point. The parity principle operates to prevent unjustified difference, not to preserve a sentencing ratio established in part by error.
  • Abuse of a position of trust, particularly by a public official exploiting specialised knowledge to facilitate large-scale revenue fraud, remains a weighty consideration in federal sentencing that will be reflected in the severity of the sentence imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A
- Criminal Code (Cth), ss 11.1(2), 141.1(1), 141.1(3), 400.4(1)
- Customs Act 1901 (Cth), s 233BABAD(1)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Postiglione v R (1997) 189 CLR 295
- Kentwell v The Queen (2014) 252 CLR 601
- Director of Public Prosecutions (Cth) v Said Kohdor El Karhani (1990) 21 NSWLR 370
- Merhi v R [2019] NSWCCA 322
- Lin v R [2018] NSWCCA 13
- Chaloner v R [2018] NSWCCA 59
- Chen v R; He v R [2018] NSWCCA 95
- Tarrant v R [2018] NSWCCA 21
- R v Gent [2005] NSWCCA 370
- Hamieh v R [2007] NSWCCA 277
- Rees v R [2012] NSWCCA 47
- R v Lamella [2014] NSWCCA 122
- R v Ilbay [2000] NSWCCA 251
- R v Kollas and Mitchell [2002] NSWCCA 491
- Andrews v Law Society of British Columbia [1989] 1 SCR 143