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Court of Criminal Appeal 17 December 2002

R v Strano [2002] NSWCCA 531 revised - 19

[2002] NSWCCA 531

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE PLEA OF NOT GUILTY.

Citation: R v Strano [2002] NSWCCA 531 revised – 19/02/2003
Court: NSW Court of Criminal Appeal
Date: 17 December 2002
Judge(s): Sheller JA, Wood CJ at CL, Sully J

Background

The applicant was an investment adviser who operated from Bondi Junction between 1995 and 1997. He acted as an agent for a man named Balos, inducing members of the public, many of them elderly investors, to place funds into fictitious entities including "Commodities International" and "British Marine Bank." Total funds involved in the proven charges exceeded $973,000.

A jury convicted the applicant on 17 counts of making a false statement with intent to obtain a financial advantage, contrary to s 178BB of the Crimes Act 1900 (NSW). He was sentenced in the District Court by Hock DCJ to an overall term of eight years with a non-parole period of five years, structured through a series of fixed terms and one head sentence across four groups of counts.

The applicant sought leave to appeal against the severity of that sentence. The primary ground raised was parity: a co-offender named Smith, who had been involved in the same scheme, had received a lesser sentence despite what the applicant argued was comparable criminality.

  • Whether the overall sentence of eight years was manifestly excessive, having regard to the applicant's role and the facts of the offending
  • Whether a disparity in sentencing between the applicant and a co-offender (Smith) was unjustified, and if so, how the sentences should be adjusted
  • Whether the structural approach to accumulation of sentences was appropriate, including the ratio of the non-parole period to the head sentence

Decision

The Court accepted the parity argument. Wood CJ at CL reasoned that while the applicant had offended over a longer period and for a greater total amount than Smith, Smith possessed greater moral turpitude given his deeper involvement in and knowledge of Balos' fraudulent operations. Taking those factors together, the criminality of the two offenders should have been treated as roughly equal, and the disparity in their sentences was not justified.

The Court's remedy was to reduce the overall sentence by adjusting the accumulation structure rather than altering the individual sentences for the earlier groups of counts. The sentences for groups one and two were left undisturbed. The group three sentences were varied from fixed terms to sentences with non-parole periods, and the group four sentence was brought forward in its commencement date from April 2006 to April 2004.

The result was an overall sentence of six years (commencing 25 October 2001 and expiring 24 October 2007), with an effective non-parole period of three years and nine months expiring on 24 July 2005. Importantly, the Court preserved the original ratio of non-parole period to head sentence at 62.5 percent. All three judges agreed with the orders proposed by Wood CJ at CL.

Orders Made

  • Leave to appeal granted; appeal against severity of sentence allowed
  • Sentences for groups one and two counts left unaltered
  • Group three counts: fixed terms substituted with sentences of three years each commencing 25 April 2003, with non-parole periods of one year commencing 25 April 2003 and expiring 24 April 2004
  • Direction made under s 50 of the Crimes (Sentencing Procedure) Act 1999 for release on parole at the expiry of the group three non-parole periods
  • Group four (count 20): sentence varied to commence 25 April 2004 (brought forward from 25 April 2006), with a non-parole period of one year and three months commencing 25 April 2004 and expiring 24 July 2005
  • Overall effective sentence: six years, with a non-parole period of three years and nine months

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle requires that co-offenders of roughly equal criminality receive broadly comparable sentences, even where individual factors such as duration of offending or amounts involved differ.
  • Where one co-offender had greater moral culpability through deeper knowledge of and participation in a fraud, that factor can legitimately offset a longer period of offending and larger sums involved by the other.
  • Reliance on conduct not charged as a basis for imposing a heavier sentence risks infringing the principle in De Simoni v The Queen (1981) 147 CLR 383, which the Court flagged in declining to treat certain additional matters as justifying a harsher outcome for the applicant.
  • The structural mechanism used to give effect to the parity adjustment was a recalibration of the accumulation of sentences rather than alteration of individual head sentences, allowing the Court to preserve the original 62.5 percent ratio of non-parole period to overall term.
  • A conviction under s 178BB of the Crimes Act 1900 for making false statements with intent to obtain a financial advantage carries a maximum of five years' imprisonment per count; the overall sentence across multiple counts must still reflect totality principles.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BB
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 50

Cases:
- De Simoni v The Queen (1981) 147 CLR 383
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- Ryan v The Queen [2001] HCA 21
- Regina v Corner (NSWCCA, 19 December 1997)
- Regina v Edwards (1996) 90 A Crim R 510
- Regina v El Rashid (NSWCCA, 7 April 1995)
- Regina v Moffatt (VCCA, 15 December 1992)
- Regina v Petrovic [1998] VSCA 1995
- Regina v Phelan (1993) 66 A Crim R 446