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Court of Criminal Appeal 27 October 2021

Croke v R

[2021] NSWCCA 249

Fraud & dishonestyPublic order & justice offences
CRIME MONEY LAUNDERING APPEAL AGAINST SENTENCE OFFENDERS DISPARITY BETWEEN SENTENCES WHERE THE SAME JUDGE SENTENCED THE CO

Citation: Croke v R [2021] NSWCCA 249
Court: 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, suspected to be the proceeds of drug sales. The cash had been given to him for safekeeping by a man who was later found to be involved in significant international criminal activity, including drug importation into Australia. A third party introduced the money's owner to the appellant, a practising Sydney solicitor, to help secure the return of the seized funds.

Over the following three years, the appellant worked with co-conspirators to fabricate a legitimate explanation for the cash. The scheme involved coaching a witness for a police interview, attending that interview as the witness's legal representative, drafting and providing false documents to police, and ultimately filing Supreme Court proceedings supported by a false affidavit. The proceedings were dismissed and the money was never returned.

Following a jury trial, the appellant was convicted on six counts, including two charges of conspiracy to pervert the course of justice (each carrying a maximum of 14 years' imprisonment) and four charges carrying maximum penalties of 5 years each. He was sentenced to an aggregate term of 5 years and 9 months' imprisonment with a non-parole period of 3 years and 9 months. He sought leave to appeal against that sentence.

Legal Issues

  • Whether the sentencing judge erred in attributing to the appellant the same high level of culpability as his co-conspirators, rather than characterising him as a mere "service provider"
  • Whether the sentencing judge erred in treating the appellant's use of his position and skill as a solicitor as a seriously aggravating factor
  • Whether the aggregate sentence was manifestly excessive, having regard to comparable cases
  • Whether the disparity between the appellant's sentence and that of co-offender AZ gave rise to a justifiable sense of grievance under the parity principle

Decision

Ground 1: Role and culpability compared to co-offenders

The appellant argued he was essentially a service provider acting under the direction of his co-conspirators and that the sentencing judge overstated his role. The Court of Criminal Appeal rejected this characterisation. The appellant was at least equally involved with AZ in devising the false story, advising on its implementation, preparing and presenting false documents to police, attending police interviews, and filing Supreme Court proceedings he knew were based on fabricated evidence (at [82]). Describing him as a service provider "materially understates his role" (at [82]). The sentencing judge's finding that the appellant harboured a real consciousness of guilt, evidenced by intercepted phone conversations, was upheld (at [43]). No factual error was established in the sentencing judgment, including findings about the appellant's knowledge that the money came from an illegal source and his awareness that Mr Hanson was connected to serious international criminal activity (at [77]-[81]).

Ground 2: Use of position as a solicitor

The appellant conceded that being a solicitor was an aggravating circumstance but contested the sentencing judge's characterisation of his conduct as arrogant and audacious. The Court dismissed this ground briefly. The sentencing judge was entitled to find the conduct arrogant and audacious: the appellant acted in flagrant disregard of his professional and ethical obligations and his duty to the court (at [88]). Fagan J observed that the appellant, as an officer of the court, owed a first duty to uphold the law, and that the breach of professional responsibility contributed greatly to the seriousness of the offences. Critically, the Court held that the appellant's relative ineptitude in executing the scheme did not reduce its objective seriousness: "The fact that he was not particularly skilful does not mitigate the seriousness of the offence" (at [89]).

Ground 3: Manifest excess and comparable cases

The appellant relied heavily on comparisons with sentences in Einfeld, Hart, Irwin, and PO v R to argue the aggregate sentence was manifestly excessive. The Court found none of those cases were properly comparable. Einfeld involved a single act, a guilty plea, and some remorse. Hart involved false statements in Local Court proceedings with modest financial incentive and little planning. Irwin was a Crown appeal that, if anything, supported the proposition that the present sentence was not excessive. PO v R bore no resemblance to planned criminal conduct by a practising solicitor for financial gain (at [105]-[108]). The Court held that offences committed by a solicitor over an extended period, striking at the heart of the administration of justice, were not manifestly excessively punished by the aggregate sentence imposed (at [111]).

Ground 4: Parity with co-offender AZ

AZ pleaded guilty to two charges (compared to the appellant's six) and received an aggregate sentence of 18 months served by way of an Intensive Corrections Order. The appellant argued the disparity gave rise to a justifiable sense of grievance. The Court rejected this. AZ received a 55 per cent discount for his plea and cooperation. He faced only two counts, not six. He demonstrated genuine remorse and insight into his offending, findings the sentencing judge accepted as sincere. By contrast, the appellant showed no remorse, abused his position as a solicitor, and was convicted after a contested trial (at [130]-[131]). The same judge sentenced both co-offenders, and the Court emphasised it proceeds with caution before interfering with such a differentiation (at [129]). The disparity did not give rise to a justifiable sense of grievance (at [132]).

Orders Made

  • Leave to bring the application for leave to appeal out of time granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A solicitor's use of professional skill and standing to further a criminal scheme is a seriously aggravating factor in sentencing, and the relative inefficacy or ineptitude of that contribution does not reduce the objective gravity of the offending (at [89]).

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that describing a legally trained co-conspirator as a "service provider" rather than a principal carries no analytical weight: the substance of the role, not its label, determines culpability (at [82]).

  • Under the parity principle, a disparity between co-offenders' sentences does not give rise to a justifiable sense of grievance where significant differences exist between them, including a guilty plea with substantial discount, demonstrated remorse, and a reduced number of charges faced by the co-offender who received the lighter sentence (at [130]-[132]).

  • Comparable cases cited in sentence appeals must bear genuine resemblance to the offending under review. The Court found no meaningful comparability between isolated or single-act instances of perverting the course of justice and a three-year, multi-stage scheme conducted by a solicitor for financial gain (at [105]-[108]).

  • Where the same judge sentences co-offenders, an appellate court exercises particular caution before intervening on parity grounds, asking only whether the differentiation made by the sentencing judge was within the proper exercise of discretion (at [129]).

Legislation and Cases Referenced

Legislation
- Crimes ( Sentencing Procedure) Act 1999 (NSW)
- Evidence Act 1995 (NSW)
- Racketeer Influenced and Corrupt Organizations Act , 18 USC §§ (1970)

Cases
- Abbas v R [2013] NSWCCA 115; (2013) 231 A Crim R 413
- Attorney-General’s Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Barbaro v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Bond v R [2020] NSWCCA 277
- Director of Public Prosecutions (Vic) v Dalgliesh (a pseudonym) (2017) 262 CLR 428; [2017] HCA 41
- Einfeld v R [2010] NSWCCA 87; (2010) 200 A Crim R 1
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Hart v Attorney General for New South Wales [2016] NSWCCA 71
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
- Lloyd v R [2017] NSWCCA 303
- Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- PO v R [2020] NSWCCA 129
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- R v Croke [2020] NSWDC 460
- R v Irwin [1999] NSWCCA 361