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Court of Criminal Appeal 16 July 2021

Kiss v R

[2021] NSWCCA 158

Sexual offencesFraud & dishonesty
SENTENCING APPEAL AGAINST SENTENCE MONEY LAUNDERING OFFENCES OFFENDERS DISPARITY BETWEEN SENTENCES FIRST CO

Citation: Kiss v R [2021] NSWCCA 158
Court: NSW Court of Criminal Appeal
Date: 16 July 2021
Judges: Simpson AJA; Bellew J; Wilson J

Background

The appellant had been sentenced in two separate District Court proceedings. The first, before Girdham SC DCJ in October 2016, related to 28 counts of recklessly dealing with the proceeds of crime (money laundering) arising from a sophisticated scheme to defraud a major bank of approximately $4.7 million. The appellant was found to have stood "at the apex" of that scheme. He received an aggregate sentence of 11 years and 2 months with a non-parole period of 7 years and 8 months, accumulated on an earlier sentence for unrelated offences.

The second sentencing, before Zahra SC DCJ in June 2019, concerned serious sexual assault and related offences committed against a complainant in the context of a prior relationship marked by repeated violence and abuse. The appellant was on bail for the Port Macquarie offences at the time those offences were committed.

The appellant sought leave to appeal both sentences. In relation to the money laundering sentence, he relied solely on parity principles following a successful appeal by his co-offender Humphreys. In relation to the sexual assault sentence, he raised three grounds: error in assessing objective seriousness, error in the degree of accumulation, and manifest excess.

  • Whether the reduction of a co-offender's sentence on appeal, based on disparity with a second co-offender's sentence, gave the appellant a legitimate sense of grievance entitling him to resentencing on parity grounds.
  • Whether the primary judge erred in assessing the objective seriousness of the sexual assault offences, including whether the appellant had actual knowledge of the absence of consent.
  • Whether sexual assault offences committed within a prior or ongoing consensual relationship are, for that reason alone, less serious than those committed by a stranger.
  • Whether the level of accumulation of the sexual assault sentence on the money laundering sentence produced an overall sentence that was manifestly excessive.

Decision

Money laundering sentence and parity. The Court of Criminal Appeal had previously allowed Humphreys' appeal and reduced his sentence from 9 years and 2 months to 7 years on parity grounds, after finding that Humphreys' sentence was disproportionately harsh compared to that of co-offender Barnes, who faced more serious charges carrying a higher maximum penalty but received a lighter sentence. Once Humphreys' sentence was reduced, the original proportional relationship between the appellant's sentence and Humphreys' sentence was disturbed, leaving the appellant with a legitimate sense of grievance. The Court accepted that the appropriate remedy was to restore the original proportions, and it resentenced the appellant on the money laundering counts, reducing the aggregate term to 9 years with a non-parole period of 5 years and 6 months.

Objective seriousness of the sexual assault offences. The Court rejected the argument that the primary judge erred in assessing objective seriousness. The absence of consent was plainly established by the violent assaults that accompanied and preceded the sexual assaults, making the appellant's actual knowledge of that absence manifest. The Court confirmed, following Bussey v R [2020] NSWCCA 280, that there is no principle that sexual assault committed within a prior or existing relationship is inherently less serious than one committed by a stranger. Each case turns on its own facts.

Accumulation and totality. The Court found no error in Zahra SC DCJ's approach to accumulation. His Honour had expressly considered the totality principle and had effectively halved the sentence he would otherwise have imposed to account for the money laundering sentence already being served. The Court noted that any greater degree of concurrence would have made unwarranted inroads into the Girdham SC DCJ sentence. Although the overall sentence was lengthy, it was within the sentencing discretion and was not manifestly excessive, given the serious nature of the offending, the appellant's history, his commission of offences while on bail, and his absence of remorse or insight.

Consequential adjustment. Because the money laundering sentence was varied on parity grounds, the commencement date of the sexual assault sentence required adjustment under the Crimes (Sentencing Procedure) Act 1999 (NSW) to preserve the totality calculation. The Court moved that commencement date forward by six months accordingly.

Orders Made

In relation to the money laundering sentence (Girdham SC DCJ):
- Leave to appeal granted (out of time)
- Sentence varied: aggregate term of 9 years with a non-parole period of 5 years and 6 months

In relation to the sexual assault sentence (Zahra SC DCJ):
- Leave to appeal granted
- Commencement date varied to 23 August 2019; sentence to expire 22 August 2032; non-parole period to expire 22 February 2028
- Appeal otherwise dismissed

Key Takeaways

  • Parity principles can operate in a cascading way: where a co-offender's sentence is reduced on appeal, another co-offender who was originally sentenced in proportion to that co-offender may acquire a legitimate sense of grievance, even if no error existed in the original sentencing.

  • No principle exists in NSW sentencing law that a sexual assault committed within a prior or ongoing consensual relationship is, by reason of that relationship alone, less serious than one committed by a stranger. This was confirmed by the Court of Criminal Appeal, consistent with its earlier decision in Bussey v R [2020] NSWCCA 280.

  • Where absence of consent is made manifest by accompanying acts of violence, a sentencing court is entitled to find that the offender had actual knowledge of that absence, and objective seriousness may be assessed accordingly.

  • A lengthy aggregate sentence is not manifestly excessive merely because of its length. Where the sentencing judge expressly applied the totality principle and made a substantial reduction to reflect concurrent sentences already being served, an appellate court will not lightly disturb the result.

  • Varying a sentence on one set of charges for parity reasons may require a consequential adjustment to the commencement date of a related sentence imposed for separate offences, to preserve the intended totality calculation.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193B(2), 193B(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 53A(2)(b), 59
- Crimes (Domestic and Personal Violence) Act 2007 (NSW)
- Criminal Procedure Act 1986 (NSW)
- Evidence Act 1995 (NSW)
- Prevention of Cruelty to Animals Act 1979 (NSW)

Cases
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Humphreys v R [2020] NSWCCA 144
- Bussey v R [2020] NSWCCA 280
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Saffin v R [2020] NSWCCA 246
- NM v R [2012] NSWCCA 215
- R v Harris [1998] 4 VR 21
- R v Mason [2001] VSCA 62