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Court of Criminal Appeal 23 September 2022

He v R (Cth)

[2022] NSWCCA 205

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE ASSERTED FAILURE TO CONSIDER PARITY WHETHER JUSTIFIABLE SENSE OF GRIEVANCE WHETHER SOME OTHER SENTENCE WARRANTED

Citation: He v R (Cth) [2022] NSWCCA 205
Court: NSW Court of Criminal Appeal
Date: 23 September 2022
Judge(s): Beech-Jones CJ at CL, Wilson J, Fagan J

Background

The applicant was convicted in the District Court of NSW of possessing tobacco products knowing they had been imported with intent to defraud the Commonwealth revenue, contrary to s 233BABAD(2) of the Customs Act 1901 (Cth). The offence carries a maximum penalty of 10 years imprisonment and a fine exceeding eleven million dollars. Following a disputed facts hearing, the sentencing judge found the applicant was the principal in a criminal enterprise, having recruited two co-offenders to lease post office boxes and storage units, keeping himself at arm's length from day-to-day operations. The enterprise involved importing approximately 691 kilograms of loose-leaf tobacco and over 1.8 million cigarettes from Asia over a six-month period, resulting in excise revenue losses of over $2.27 million.

The applicant entered his guilty plea on the first day of a scheduled two-week trial. He disputed the Crown's characterisation of his role, arguing he was employed by his co-offenders rather than directing them. The sentencing judge rejected that account after a three-day hearing, accepting that the applicant had set up the scheme and used the others as subordinate workers.

The co-offender Bishan Su had previously been sentenced by a different District Court judge to 1 year and 9 months imprisonment, to be served by way of an intensive corrections order (ICO), for the lesser offence of importing tobacco products while reckless as to defrauding the revenue. That offence carries a maximum of 5 years imprisonment. Ms Su had no prior convictions, played a low-level role, was subjected to financial coercion by the applicant through a gambling debt, and received a 25% discount for her plea and cooperation.

  • Whether the sentencing judge erred by failing to consider parity principles in relation to the sentence imposed on co-offender Bishan Su.
  • Whether the sentencing judge erred by failing to take the applicant's character and antecedents into account as required by s 16A(2)(m) of the Crimes Act 1914 (Cth).
  • Whether, if error was established on either ground, some other sentence was warranted in law.

Decision

Parity ground: The Court of Criminal Appeal rejected the parity argument. The applicant and Ms Su were not in a comparable position. The applicant was found to be the principal of the enterprise, with far greater culpability, a higher degree of moral responsibility, and involvement in a substantially larger quantity of tobacco products and revenue loss. Ms Su pleaded guilty at the earliest opportunity, had no criminal history, cooperated with authorities, and committed the lesser mental-element offence of recklessness. There was no justifiable sense of grievance arising from the difference in sentences.

Antecedents ground: The Court accepted that the sentencing judge made no reference to the applicant's criminal history, despite s 16A(2)(m) requiring it to be considered. The applicant had two prior convictions for having goods in custody, both offences of dishonesty, penalised by fines. The omission constituted legal error sufficient to warrant granting leave to appeal.

Re-sentencing: Having identified error on the antecedents ground, the Court considered whether some other sentence was warranted under s 6(3) of the Criminal Appeal Act 1912 (NSW). It concluded that no lesser penalty was justified. Neither party had made specific submissions at first instance about the relevance of the criminal history. The Court observed that the prior convictions, both being dishonesty offences, were directly relevant to a further and more serious offence of dishonesty, and arguably supported a greater need for specific deterrence rather than leniency. The failure to refer to the criminal history had not operated to the applicant's disadvantage, and there was nothing in the penalty imposed to suggest the applicant had been dealt with more harshly than a full consideration of his antecedents would have warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's failure to refer to an offender's criminal history constitutes error under s 16A(2)(m) of the Crimes Act 1914 (Cth), even where neither party made specific submissions about it at first instance.
  • In dismissing the appeal despite identifying error, the Court of Criminal Appeal confirmed that establishing a sentencing error does not automatically result in re-sentencing: the Court must also be satisfied that some other sentence is warranted in law.
  • Parity principles require a justifiable sense of grievance before a sentence will be disturbed on that basis. Where an applicant and a co-offender differ materially in role, culpability, the offence charged, criminal history, and cooperation with authorities, no such grievance arises.
  • Prior convictions for dishonesty are directly relevant to sentencing for a subsequent dishonesty offence. Such a history may support an elevated need for specific deterrence rather than mitigation.
  • The Court noted that a guilty plea entered on the first day of a scheduled two-week trial, after a disputed facts hearing, does not attract the same degree of utilitarian value as an early plea.

Legislation and Cases Referenced

Legislation:
- Customs Act 1901 (Cth), s 233BABAD(2) and s 233BABAD(2A)
- Crimes Act 1914 (Cth), s 16A(2)(m)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Crystal Lee England v R; Sackda Phanith v R [2009] NSWCCA 274
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
- Jimmy v R [2010] NSWCCA 60; (2010) 77 NSWLR 540
- Martellotta v R [2021] NSWCCA 168
- McMullen v R [2013] NSWCCA 261
- Narayan v R [2022] NSWCCA 163
- R (Cth) v Jia Li He (No 1) [2021] NSWDC 450
- R (Cth) v Jia Li He (No 3) [2021] NSWDC 770
- Wong v The Queen; Leung v The Queen (2001) 207 CLR 584; [2001] HCA 64
- R v Zhang [2017] SASCFC 5