Citation: Croke v R [2021] NSWCCA 249
Court: NSW Court of Criminal Appeal
Date: 27 October 2021
Judges: Bathurst CJ; Beech-Jones J; Fagan J
Background
In August 2011, police stopped a man at a Sydney hotel and seized $702,000 in cash from a bag he was carrying. The money was suspected of being proceeds from illicit drug activity. The man carrying the bag said it had been given to him by a third party, who was later confirmed to be under investigation in the United States for drug importation and supply into Australia.
The owner of the money was eager to recover it and was introduced, through intermediaries, to the applicant, a Sydney solicitor. The applicant met with his co-offenders and from that point participated in a scheme lasting from August 2011 to November 2014. The scheme involved fabricating a cover story, drafting false documents (including a false statutory declaration and a false tax return), attending police interviews with co-offenders, and filing Supreme Court proceedings seeking the return of the funds. The applicant intended that any returned funds would pass through his trust account and be distributed among the conspirators.
Following a jury trial, the applicant was convicted on six counts: two counts of perverting the course of justice, three counts of making false and misleading statements, and one count of participating in a criminal group. The sentencing judge imposed an aggregate term of five years and nine months' imprisonment with a non-parole period of three years and nine months. The applicant sought leave to appeal against that sentence out of time.
Legal Issues
- Whether the sentencing judge erred in attributing the same level of responsibility to the applicant as to his co-offenders, Mr Hanson and AZ
- Whether the sentencing judge erred in treating the applicant's use of his skills and position as a solicitor, and his breach of professional responsibilities, as a basis for attributing a high level of responsibility
- Whether the aggregate sentence was manifestly excessive
- Whether the disparity between the applicant's sentence and that of co-offender AZ gave rise to a justifiable sense of grievance under the parity principle
Decision
Responsibility relative to co-offenders: The Court found no factual error in the sentencing judge's assessment that the applicant bore the same level of responsibility as his co-offenders. The sentencing judge's conclusion on this point was open on the evidence, and this ground of appeal was not made out.
Abuse of professional position: The Court upheld the sentencing judge's finding that the applicant had used his skill and position as a solicitor in furtherance of the criminal activity, in breach of his oath of office and professional obligations. Fagan J observed that the applicant, as an officer of the Court, had a first duty to uphold the law. Instead, he joined his clients in a criminal enterprise, abusing the trust ordinarily extended to legal practitioners by police and the courts. The Court rejected the submission that any ineptitude or inefficacy in carrying out the scheme reduced the gravity of those breaches.
Manifest excess: The Court confirmed that the relevant question on this ground was whether the aggregate sentence was manifestly excessive, with indicative individual sentences providing guidance rather than being the primary focus. Reviewing the applicable comparable cases, the Court found the aggregate sentence of five years and nine months was not manifestly excessive.
Parity: The Court restated that the parity principle requires like offenders to be treated alike, while permitting differences that reflect varying culpability or circumstances. It noted that courts should exercise particular caution in applying the parity principle where the same judge sentenced all co-offenders, as was the case here. The Court found the disparity between the applicant's sentence and AZ's sentence was justified: unlike AZ, the applicant had not pleaded guilty, had shown no remorse, and had used his professional position to advance the conspiracy. No justifiable sense of grievance arose.
Orders Made
No orders were made in this decision.
Key Takeaways
- A solicitor's use of professional skills, trust account access, and court appearances to advance a criminal conspiracy constitutes a significant aggravating factor at sentencing, regardless of whether the scheme ultimately succeeded.
- Under the parity principle, appellate courts will interfere with a sentence only where the disparity between co-offenders is objectively sufficient to give rise to a justifiable sense of grievance, not merely a subjective one.
- Where the same judge has sentenced all co-offenders, the Court of Criminal Appeal confirmed that particular caution is warranted before invoking the parity principle, since the sentencing judge was best placed to assess the relevant similarities and differences.
- The breach of professional obligations by a legal practitioner is not diminished in seriousness by the fact that the criminal scheme was ineffective or ineptly executed.
- In assessing manifest excess of an aggregate sentence, the aggregate term is the primary focus; indicative sentences for individual counts may provide some guidance but are not determinative.
Legislation and Cases Referenced
Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), including s 53A(2)
- Evidence Act 1995 (NSW)
Cases:
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- Bond v R [2020] NSWCCA 277
- Lloyd v R [2017] NSWCCA 303
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
- R v Croke [2020] NSWDC 460 (the sentence under appeal)
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41