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Court of Criminal Appeal 6 May 2020

Sabbah v R (Cth)

[2020] NSWCCA 89

Fraud & dishonesty
CRIME SENTENCE POSSESSION OF COUNTERFEIT MONEY

Citation: Sabbah v R (Cth) [2020] NSWCCA 89
Court: Court of Criminal Appeal, NSW
Date: 6 May 2020
Judges: McCallum JA, Wilson J, Cavanagh J

Background

The appellant was sentenced in the District Court at Sydney after pleading guilty, on the first day of trial, to possession of counterfeit money knowing it to be counterfeit, contrary to s 9(1)(a) of the Crimes (Currency) Act 1981 (Cth). The offence carries a maximum penalty of 10 years imprisonment. The sentencing judge imposed 3 years and 6 months imprisonment with a non-parole period of 2 years and 6 months.

The facts established that the appellant had been in possession of a substantial quantity of high-quality counterfeit notes, carried as a trusted courier within a planned criminal enterprise and for financial gain. His subjective case was limited: his plea was entered very late, he had a lengthy criminal record including serious prior convictions, was on conditional liberty at the time of the offending, and showed no credible remorse.

The appellant sought leave to appeal out of time, arguing the sentence was manifestly excessive. The Court of Criminal Appeal granted leave, noting there is no established tariff for this type of offence, but ultimately dismissed the appeal.

  • Whether the sentence of 3 years and 6 months imprisonment was manifestly excessive for possession of counterfeit currency.
  • Whether prior statements in R v Gittani and R v Institoris that offenders convicted of knowing possession of counterfeit notes should "ordinarily expect to go to gaol" represent a binding sentencing principle.
  • Whether those statements are consistent with the statutory sentencing framework under ss 16A and 17A of the Crimes Act 1914 (Cth) and the common law requirement for instinctive synthesis.

Decision

Wilson J, with whom Cavanagh J agreed, found no error in the sentencing judge's approach. Her Honour had properly identified the objective gravity of the offending, including the planned nature of the enterprise, the appellant's role as a trusted courier, the quality of the notes, and his financial motivation. The sentencing judge then gave appropriate weight to the limited subjective matters, including a discount for the late plea and the appellant's claimed substance abuse. The resulting sentence, less than half the maximum, was within the range open to the sentencing judge.

McCallum JA wrote separately to address the broader question of principle raised by the earlier cases. Her Honour noted that statements in Gittani and Institoris to the effect that offenders in possession of counterfeit notes should "ordinarily expect to go to gaol" must not be treated as binding legal principles constraining the sentencing discretion.

McCallum JA reasoned that s 16A of the Crimes Act 1914 (Cth) requires proportionality and mandates consideration of a non-exhaustive list of factors through instinctive synthesis, a process that can only conclude with a sentence after all relevant considerations are identified and weighed. Section 17A separately prohibits a court from imposing imprisonment unless, having considered all other available sentences, it is satisfied that no other sentence is appropriate. Pre-empting that satisfaction by reference to a generalised norm from a prior case would be a wrong approach.

McCallum JA placed those conclusions within a broader line of High Court authority consistently rejecting pre-emptive or prescriptive sentencing norms, and noted that the Court of Criminal Appeal's decision in Parente v R [2017] NSWCCA 284, which overruled the analogous Clark principle in drug trafficking sentencing, pointed in the same direction. The statements in Gittani and Institoris were made before Parente and should not be understood as statements of binding principle.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • Statements in earlier cases that knowing possession of counterfeit notes should "ordinarily" attract full-time imprisonment do not constitute binding sentencing principles and do not constrain the judicial sentencing discretion.
  • Under s 17A of the Crimes Act 1914 (Cth), a court cannot impose imprisonment unless, after considering all available alternatives, it is satisfied that no other sentence is appropriate. Reaching that satisfaction by reference to a generalised norm from a prior case would be an error.
  • Section 16A of the Crimes Act 1914 (Cth) requires proportionality and instinctive synthesis across all mandatory considerations. Imposing a pre-emptive norm about the type of sentence to be expected subverts that process.
  • The Court of Criminal Appeal confirmed that its earlier decision in Parente v R, which overruled prescriptive drug sentencing norms, reflects a principle of broader application: prescriptive rules about the sentence that should ordinarily follow a particular type of offence are incompatible with the judicial sentencing discretion.
  • No error was established in the District Court sentence of 3 years and 6 months. The sentence reflected proper assessment of the significant objective criminality and the limited subjective case, and was less than half the maximum available penalty.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes Act 1914 (Cth), ss 16A, 17A
- Crimes (Currency) Act 1981 (Cth), s 9(1)(a)
- Reserve Bank Act 1959 (Cth)

Cases:
- Barbaro v The Queen [2014] HCA 2
- Dang v R [2014] NSWCCA 47
- Dinsdale v The Queen [2000] HCA 54; 202 CLR 321
- Hili v The Queen; Jones v The Queen [2010] HCA 45; 242 CLR 520
- Hoare v The Queen (1989) 167 CLR 348; [1989] HCA 33
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- MLP v R [2014] NSWCCA 183
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Naveed v R [2019] NSWCCA 149
- Ngatamariki v R [2016] NSWCCA
- Parente v R [2017] NSWCCA 284
- Pham v R [2014] NSWCCA 115
- R v Gittani [2002] NSWCCA 139
- R v Institoris (2002) 129 A Crim R 458; [2002] NSWCCA 8
- R v Meades (District Court of NSW, 29 June 2000, unrep)
- R v Eddie Ali Shaitly (District Court of NSW, 3 October 1996, unrep)
- R v Geaney (District Court of NSW, 27 October 1995, unrep)
- Veen v The Queen (No 2) (1988) 164 CLR 465; [1988] HCA 14
- Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64