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Court of Criminal Appeal 28 April 2023

Butler v R

[2023] NSWCCA 100

Fraud & dishonesty
CRIME A PPEAL APPEAL AGAINST SENTENCE GROUND UPHELD OFFENDER WHERE CO

Citation: Butler v R [2023] NSWCCA 100
Court: NSW Court of Criminal Appeal
Date: 28 April 2023
Judges: Beech-Jones CJ at CL; N Adams J; Yehia J

Background

The applicant was one of four co-offenders who pleaded guilty to participating in a joint criminal enterprise to import and sell counterfeit Australia Post pre-paid satchels, contrary to s 148(1) of the Trade Marks Act 1995 (Cth). Between September 2018 and May 2019, the group sold more than 56,000 counterfeit satchels through direct sales and eBay, depriving Australia Post of significant revenue. The maximum penalty for the offence was five years imprisonment.

The applicant's co-offender, referred to throughout as DM, had conceived and orchestrated the scheme and directed the other participants. DM also faced a separate offence for refusing to provide a password to federal agents. DM presented what the Court described as a very powerful subjective case on sentence, in part because he had been the victim of child sexual assault.

At first instance, Judge Craigie SC sentenced the applicant to 2 years and 3 months imprisonment, with release on a recognizance release order (RRO) after serving 1 year and 2 months. DM received the same total sentence of 2 years and 3 months, but that total included an additional 6-month sentence for his separate offence, partially accumulated. The applicant sought leave to appeal on two grounds.

  • Whether the sentencing judge erred by failing to make any finding as to the applicant's prospects of rehabilitation and risk of reoffending, despite being required to do so under s 16A(2)(n) of the Crimes Act 1914 (Cth).
  • Whether the disparity between the sentence imposed on the applicant and the sentence imposed on DM (who had a greater degree of criminality) gave rise to a justifiable sense of grievance warranting appellate intervention.

Decision

Ground 1: Failure to assess rehabilitation (upheld)

Section 16A(2)(n) of the Crimes Act 1914 (Cth) requires a sentencing court to take into account an offender's prospects of rehabilitation where that is relevant and known to the court. The Court found that evidence of the applicant's rehabilitation was plainly relevant on the facts, and that there was significant material before the sentencing judge bearing on this question. Despite making positive rehabilitation findings in relation to the other co-offenders, the sentencing judge made no finding at all about the applicant's prospects. This omission constituted error.

Ground 2: Justifiable sense of grievance arising from parity (upheld)

A sentencing disparity between co-offenders warrants appellate intervention where it is marked, unjustified, or manifest, such that it gives rise to a justifiable sense of grievance or the appearance that justice has not been done. DM was the instigator and director of the scheme, making his objective criminality greater than the applicant's. While the sentencing judge had a discretion to substantially reduce DM's sentence in light of his strong subjective case, the applicant also presented a positive subjective case. The Court found that the applicant had received a higher effective sentence for the shared offence than DM, despite DM's more serious role, and that this disparity was not adequately explained by the difference in their subjective circumstances.

Re-sentencing

On re-sentence, N Adams J found that the applicant had good prospects of rehabilitation, was remorseful, and posed no real risk of reoffending. The principles of equal justice required that the applicant's sentence be measured against DM's sentence for the same offence. The Court imposed the same 2-year sentence on the applicant as DM received for their shared offence, but ordered the applicant's release on an RRO one month earlier than DM's release date.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Craigie SC on 14 June 2022 quashed.
  • Applicant re-sentenced to 2 years imprisonment, commencing 14 June 2022 and expiring 13 June 2024.
  • Applicant to be released on a recognizance release order on 13 May 2023, conditional on good behaviour and agreement to forfeit $1,000 in the event of breach.

Key Takeaways

  • Under s 16A(2)(n) of the Crimes Act 1914 (Cth), a sentencing court must make a positive finding on an offender's prospects of rehabilitation where relevant material is before it; a failure to do so, particularly where findings are made for other co-offenders, constitutes error.
  • Appellate intervention on parity grounds requires a disparity that is marked, unjustified, or manifest, not merely one that seems unequal at first glance.
  • A co-offender's significantly stronger subjective case can justify a meaningfully reduced sentence even where that co-offender had a greater degree of objective criminality, but the extent of that reduction must still be reconcilable with the other offender's sentence.
  • In dismissing the relevance of DM's additional offence to the parity analysis, the Court focused on the comparative sentences for the offence the two men shared, isolating the accumulation from the parity calculus.
  • Equal justice principles operated to require that the re-sentenced applicant receive no more than DM for the shared offence, with the modest difference in release dates reflecting the relative strength of their respective subjective cases.

Legislation and Cases Referenced

Legislation
- Trade Marks Act 1995 (Cth), s 148(1)
- Crimes Act 1914 (Cth), ss 3LA(6), 16A(2)(n), 20
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Crimes (Administration of Sentences) Act 1999 (NSW), s 6(2)

Cases
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26
- 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
- Lloyd v R [2017] NSWCCA 303
- Pogson v R [2012] NSWCCA 225
- R v Boughen; R v Cameron [2012] NSWCCA 17
- Totaan v R (2022) 108 NSWLR 17; [2022] NSWCCA 75
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Kentwell v The Queen (2014) 252 CLR; [2014] HCA 37
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221