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Court of Criminal Appeal 20 December 2024

Menzies v R

[2024] NSWCCA 248

Fraud & dishonesty
CRIME APPEALS APPEALS AGAINST SENTENCE DISPARITY BETWEEN SENTENCES OFFENDER GROUND NOT MADE OUT

Citation: Menzies v R [2024] NSWCCA 248
Court: Court of Criminal Appeal
Date: 20 December 2024
Judge(s): Stern JA, Dhanji J, Faulkner J (Faulkner J delivered the principal judgment)

Background

The appellant was convicted by jury of 14 offences of dealing with property reasonably suspected of being proceeds of crime, contrary to s 193C(2) of the Crimes Act 1900 (NSW). Each offence involved a separate electronic transfer of funds under $100,000. The transfers arose from a business email compromise fraud, in which $942,700 was directed by deception into a bank account controlled by the appellant's cousin (his co-offender) and then moved on through a bullion company account.

The appellant was the person who executed all 14 transfers, moving approximately $938,000 in total from the co-offender's bank account into a gold bullion account, and a further $20,000 into another account. He was arrested at the bullion company's premises when he arrived to collect the gold.

The sentencing judge imposed an aggregate sentence of 4 years' imprisonment with a 3-year non-parole period. The co-offender, who had pleaded guilty to two charges under the higher-value tier of the same provision, received an aggregate sentence of 2 years following a District Court appeal, which was directed to be served by way of an Intensive Correction Order (ICO). The appellant sought leave to appeal his sentence on the basis that this disparity gave rise to a justifiable sense of grievance.

  • Whether the disparity between the appellant's aggregate sentence of 4 years and the co-offender's sentence of 2 years (served by ICO) gave rise to a justifiable sense of grievance, warranting appellate intervention.
  • Whether the fact that the co-offender's sentence was directed to be served by ICO, while the appellant was imprisoned, independently supported a disparity ground of appeal.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal. Faulkner J, with whom Stern JA and Dhanji J agreed, found that the differences in sentence were fully explained by the differences in the circumstances of the two offenders and were not unjustifiable.

Several factors distinguished the appellant's position from that of the co-offender. The appellant was convicted at trial and received no discount for a guilty plea, whereas the co-offender received a 25% discount. The appellant faced 14 separate charges, while the co-offender faced two (one of which was a "rolled up" charge). The District Court judge who sentenced the co-offender on appeal also specifically found that the sophistication in structuring the transfers, particularly breaking them into amounts under $75,000, was attributable to the appellant rather than the co-offender, suggesting greater involvement in the fraudulent scheme.

The Court also rejected the separate submission that a justifiable sense of grievance arose from the appellant being sentenced to full-time custody while the co-offender received an ICO. Following the High Court's decision in Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1, the determination of an appropriate term of imprisonment and the subsequent question of whether to impose an ICO are two discrete decisions. Because the appellant's aggregate sentence exceeded 3 years, he was ineligible for an ICO by operation of statute. The Court held that this ineligibility did not independently support a disparity argument, as it flowed from the properly determined term of imprisonment rather than from any error in the sentencing process.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentence disparity ground requires an appellant to demonstrate a justifiable sense of grievance; where differences in outcome are explained by genuine differences in culpability, plea, and the number of charges, no such grievance arises.
  • The Court of Criminal Appeal confirmed that the sophistication of the money transfers in this case was attributed to the appellant rather than the co-offender, a factual distinction that materially affected the comparison of their sentences.
  • Under the Crimes (Sentencing Procedure) Act 1999 (NSW), the decision whether to impose an ICO is a second and separate step that only arises after an appropriate term of imprisonment has been set; a sentencing court cannot work backwards from a desired ICO outcome to select a qualifying term.
  • Where an aggregate sentence exceeds 3 years, s 68(2) of the Crimes (Sentencing Procedure) Act renders an ICO unavailable, and this statutory ineligibility cannot itself ground a disparity appeal.
  • In dismissing the appeal, the Court reaffirmed the principle from Jimmy v R (2010) 77 NSWLR 540 that differences between co-offenders' sentences must reflect differences in their circumstances; the appellant failed to show that the sentencing judge's differentiation fell outside the proper exercise of the sentencing discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 193C
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 22A, s 5(1), s 7(1), s 68(2)

Cases
- Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
- Magaming v The Queen (2013) 252 CLR 381; [2013] HCA 40
- Stanley v Director of Public Prosecutions (NSW) (2023) 278 CLR 1; [2023] HCA 3
- Vujinovic v R [2024] NSWCCA 10