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Court of Criminal Appeal 19 March 2001

R v Kheng [2001] NSWCCA 85 revised - 14

[2001] NSWCCA 85

Fraud & dishonesty

Citation: R v Kheng [2001] NSWCCA 85 revised 14/09/2001
Court: NSW Court of Criminal Appeal
Date: 19 March 2001
Judges: Simpson J, Giles JA, Wood CJ at CL

Background

The applicant pleaded guilty in the NSW District Court to conspiracy to cheat and defraud, a common law misdemeanour carrying no prescribed maximum penalty. The offence arose from a large-scale counterfeit credit card operation estimated to have involved approximately USD 16 million. The applicant's role was to use counterfeit cards to purchase goods, which were then delivered to safe houses and either sold locally or exported to South-East Asia.

The sentencing judge, Judge Woods DCJ, characterised the applicant as a low-level participant, describing him as "a cog in the wheel." The applicant had already been sentenced in Western Australia for a related offence and had served a non-parole period of 13 months before being extradited to New South Wales. On 31 August 2000, Judge Woods sentenced him to four years' imprisonment with a three-year non-parole period, backdated to 20 May 1999 to reflect the WA sentence already served.

The applicant sought leave to appeal against the severity of that sentence, arguing that it was disproportionate compared to sentences received by co-offenders sentenced in Queensland and New South Wales.

  • Whether a relevant sentencing disparity existed between the applicant's sentence and those imposed on co-offenders in Queensland and New South Wales, such that the parity principle required the sentence to be reduced.
  • Whether, if no error of parity could be established, the sentence was otherwise manifestly excessive.

Decision

The sole ground of appeal was parity. The Court examined sentences received by five co-offenders sentenced by Judge Dodds in Queensland on 12 July 2000, and two co-offenders sentenced by Judge Shadbolt in the NSW District Court. The Queensland offenders received terms of either five years (for fraud in circumstances of aggravation, maximum ten years) or three years (for fraud, maximum five years), with a parole recommendation after 18 months, having already spent approximately 301 days in custody.

Simpson J found the Queensland sentencing remarks were too sparse to permit a meaningful comparison. The offences dealt with in Queensland were committed over only four or five days and involved property worth just under AUD 250,000, whereas the applicant's offending extended over several months. The different charges, limited factual disclosure and unknown individual circumstances of the Queensland co-offenders made it impossible to identify a relevant disparity.

The two NSW co-offenders sentenced by Judge Shadbolt had been classified as supervisors in the operation, a step above the applicant, who fell into the lowest category of participants, described as "shoppers." Judge Shadbolt had expressly applied parity principles when imposing those heavier sentences. Simpson J found no inconsistency: the difference in roles justified the difference in sentences.

Because no error arising from the parity principle could be made out, and no argument was advanced that the sentence was manifestly excessive on independent grounds, the Court found no error in the sentencing process.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A parity argument requires sufficient comparable material about co-offenders, including their roles, offending periods, and subjective circumstances. Where sentencing remarks are sparse and charges differ across jurisdictions, a court may find the material too limited to establish relevant disparity.
  • The parity principle operates by reference to the relative roles of co-offenders. A lower-level participant classified as a "shopper" cannot automatically claim parity with co-offenders classified as supervisors, even within the same broader conspiracy.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where parity is the sole ground of challenge and no independent manifest excess argument is pressed, failure on the parity ground is fatal to the appeal.
  • Backdating a NSW sentence to account for an interstate sentence already served is a recognised sentencing approach where the offences are related, ensuring the totality of the sentence reflects time already spent in custody.
  • No error in the sentencing process was established merely because different sentences were imposed in different states for what formed part of the same broader criminal enterprise, given the structural differences in applicable charges and maximum penalties.

Legislation and Cases Referenced

Legislation:
- No specific legislation cited in the judgment (the offence was a common law misdemeanour: conspiracy to cheat and defraud).

Cases:
- No cases were expressly cited in the judgment text provided.