Cahyadi v R - [2007] NSWCCA 1

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Cahyadi v Regina [2007] NSWCCA 1

FILE NUMBER(S):
2006/2348

HEARING DATE(S): 16/01/2007

JUDGMENT DATE: 24 January 2007

PARTIES:
Kevin Cahyadi v Regina

JUDGMENT OF: Adams J Howie J Price J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 06/11/0038

LOWER COURT JUDICIAL OFFICER: Ainslie-Wallace DCJ

LOWER COURT DATE OF DECISION: 19/05/2006

COUNSEL:
L. Crowley - Crown
J. Overall - Applicant

SOLICITORS:
Commonwealth DPP - Crown
Ren Zhou - Applicant

CATCHWORDS:
Criminal Law - Sentencing - mixed Commonwealth and State offences -most serious offending Commonwealth crimes - whether non-parole period being 75 per cent of total sentence appropriate in those circumstances.

LEGISLATION CITED:
Crimes Act 1900 - s 302A
Criminal Code (Cth) 1995 - ss 400.5, 400.9
Financial Transaction Reports Act 1988 (Cth)
Crimes (Sentencing Procedure) Act 1999 - s 44

CASES CITED:
R v Thomson and Houlton (2000) 49 NSWLR 383
R v MMK [2006] NSWCCA 272
Cameron v The Queen (2002) 209 CLR 339
Markarian v The Queen (2005) 79 ALJR 1048
R v Scott [2003] NSWCCA 286
R v Heikkinen [2006] NSWCCA 50
R v Dib [2003] NSWCCA 117

DECISION:
The appeal is allowed and the sentences are quashed and in lieu the applicant is sentenced as follows: (1) On the first count and taking into account the matters on the Form 1 a fixed term of 2 years to date from 6 May 2005 and to expire on 5 May 2007. (2) On the second count a sentence of 1 year to date from 6 November 2005 and to expire on 5 November 2006. (3) On the third count and taking into account the additional matters a sentence of 3 years to date from 6 May 2006. (4) In relation to the second and third counts there is to be a non-parole period of 2 years 2 months to commence on 6 November 2005 and to expire on 5 January 2008.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/2348
ADAMS J
HOWIE J
PRICE J
WEDNESDAY 24 JANUARY 2007

Kevin CAHYADI v REGINA

Judgment

ADAMS J: I have read the judgment of Howie J in draft. Subject to the comments below, as to the third ground of appeal, I agree with both his Honour's reasoning and conclusions.
The relevant passage in R v Thomson and Houlton (2000) 49 NSWLR 383 is as follows --
"[160] The Court should adopt the following guideline applicable to offences against State laws:
(i) A sentencing judge should explicitly state that a plea of guilty has been taken into account. Failure to do so will generally be taken to indicate that the plea was not given weight.
(ii) Sentencing judges are encouraged to quantify the effect of the plea on the sentence insofar as they believe it appropriate to do so. This effect can encompass any or all of the matters to which the plea may be relevant - contrition, witness vulnerability and utilitarian value - but particular encouragement is given to the quantification of the last mentioned matter. Where other matters are regarded as appropriate to be quantified in a particular case, e.g. assistance to authorities, a single combined quantification will often be appropriate.
(iii) The utilitarian value of a plea to the criminal justice system should generally be assessed in the range of 10-25 percent discount on sentence. The primary consideration determining where in the range a particular case should fall, is the timing of the plea. What is to be regarded as an early plea will vary according to the circumstances of the case and is a matter for determination by the sentencing judge.
(iv) In some cases the plea, in combination with other relevant factors, will change the nature of the sentence imposed. In some cases a plea will not lead to any discount."
As has been frequently said in this Court, the extent to which judges given a utilitarian discount depends upon the exercise of the judge's independent discretion in the particular circumstances of the case. Nevertheless, that discretion must, of course, be exercised judicially. It should not be exercised capriciously or arbitrarily. Nor should it appear to be so.
It is self evident that the discount is directed to the date of a plea. Whilst, for example, prior admissions to police are plainly relevant, the time of arrest is not the time for a plea of guilty. The first occasion for a plea is at committal. It is notorious that, in many though not all cases, the charges can at this time be somewhat fluid: some might not be appropriate; there will often be doubling up; other charges may better express the criminality involved in the impugned conduct. Often, the process of refinement cannot usefully be undertaken until the entire brief has been provided, not only to those representing the defendant, but also to the Office of the Director of Public Prosecutions. There is nothing in Thomson and Houlten that suggests that there mere undertaking of negotiations as to the charges or, for that matter, charge bargaining itself should be regarded as cutting down the appropriate discount. The guideline was promulgated in a context when those processes were a given and, moreover, encouraged. In my view, it will be a very rare case in which charge negotiations before committal should be regarded as justifying an otherwise appropriate discount.
Following committal charge negotiations also frequently occur. It is obvious that the defence has an interest in attempting to reduce the impact of the alleged criminal conduct whilst it is the duty of the prosecution to ensure that the charges which are ultimately the subject of the plea -- whether guilty of not guilty -- adequately represent the extent of the criminality that it is necessary to punish in the former situation or try in the latter. In light of this duty it is wrong in principle for the court to infer that an offender has obtained some advantage from a charge bargain to which he or she is not entitled and which therefore should reduce the appropriate discount. To the contrary, the assumption should be that the ultimate charges reflect the criminal conduct for which it is appropriate the offender should be punished. There are some exceptional cases where, although this is the case, the ultimate form of the charges is itself so advantageous to an offender that the form adopted itself reflects a form of discount. In such a case, giving the full utilitarian discount may amount to a double and inappropriate reward. Typically this might be expected to occur where offences are placed on a Form 1. But even in this instance, it should be assumed that the prosecution considers that the use of this procedure (after all, specifically provided for in the legislation) is in the public interest and that, overall, the charge together with the Form 1 offences, reflects the criminality sufficiently to permit adequate punishment.
The plain and essentially simple point made in the judgment was that the public interest required an explicit discount to be given where possible and the indicated range of 10% to 25% should be regarded as a guideline for the exercise of the relevant discretion. The reason is obvious. It is in the public interest that legal advisers be able to inform their clients as to the likely outcome of a plea. Arbitrary and unexplained departures from the guideline undermine this public interest. Nice distinctions and fine lines should also be eschewed. It is of the essence that the matter should be as clear, simple and predictable as circumstances permit. Of course, one reason for not extending the full otherwise available discount is that the resulting sentence would be below the appropriate discretionary range. But, in those cases, this should be stated in order to maintain the transparency of the process and the integrity of the guideline.
Justice itself is undermined by the appearance of arbitrariness. In some cases it is impossible to avoid the suspicion that the full 25% is withheld simply because the particular judicial officer simply thinks that the guideline itself is mistaken.
I come now to the facts in this case concerning the evolution of the charges. The matter was the subject of written submissions at first instance. It was submitted by the prosecution --
“The offender and his wife were both arrested and charged on 6 May 2005. Through his legal representatives the offender made written representations on 22 December 2005 resulting in the amalgamation of a number of NSW Crimes Act charges to the ones now before the court, and the use of schedules in relation to the more minor matters before the court. There has been no change to the Commonwealth money laundering offences, though a back-up charge in relation to the charge against s400.5 Criminal Code was withdrawn. As a result of the plea a number of similar NSW charges were withdrawn against the offender’s wife, as was a charge under s400.9 Criminal Code relating to joint possession of the $155,600.
On that basis, on 11 January 2006 the offender entered pleas of guilty in the Local Court to the offences for which he now falls to be sentenced, some 8 months after his arrest.
While it is conceded that the pleas of Guilty were entered in the Local Court, that is, at an early stage in indictable proceedings, the Crown does not concede the pleas of guilty were entered at the first reasonable opportunity.”
Although no doubt it is reasonable to infer that there was a reasonable suspicion of such criminal involvement on the part of the applicant's wife as justified the bringing of charges against her, it cannot be inferred, let alone assumed, that she was guilty of the offences. In my respectful opinion, it is wrong in principle to ascribe some benefit to the applicant for the withdrawal of the charges against his wife. Accordingly, the mere fact that, as it happened, the prosecution agreed to withdraw those charges in the context of the negotiations with the applicant's legal advisers should not be considered as a reason for not according to the applicant the utilitarian discount otherwise appropriate. Although it is true that the charges against the applicant's wife were withdrawn there is no evidence, in my respectful view, that this withdrawal was a condition of the applicant's pleas as distinct from part of an agreement as to the appropriate way in which the charges should be dealt with. The same conclusion follows, it seems to me, in respect of the simplification of the charges. It cannot be right to proceed on the basis that the applicant is guilty of the other charges. Still less is this proper where the outcome is said to be an "amalgamation" of the charges.
The prosecution did not concede that the pleas were entered at the first reasonable opportunity, citing the circumstances set out above. Reliance was apparently also placed on the fact that the pleas were entered some eight months after the applicant's arrest. This seems to me to be a complete non sequitur. On the assumption that the charges ultimately pleaded to comprised a reasonable outcome, why should it be inferred that the prosecution's change of position was anything other than reasonable and, if reasonable, why should it be thought that the applicant's attitude to the original charges was unreasonable? Accordingly, with respect, I am unable to accept that the pre-committal negotiations are relevant to the question whether the plea was entered at the first reasonable opportunity.
There is nothing in the evidence, in my view that should rationally have led to the conclusion that the upper end of the utilitarian discount, namely 25%, should not have applied in the circumstances here. Nor did the learned trial judge give a reason for not applying that figure. At the same time, it seems that this Court has held that such apparently arbitrary determinations are within the discretion of the sentencing judge and ought not to be corrected by this Court. In my respectful view, such an approach undermines the purpose sought to be served by the guidelines. However, having registered my protest, I feel duty bound to follow those decisions.
Accordingly, I must reject this ground of appeal.

HOWIE J: The applicant pleaded guilty in the Local Court to three charges: two being offences against Commonwealth law and one a State offence. He was committed for sentence to the District Court. For reasons that are not relevant, he was arraigned on an indictment containing the three charges in the District Court and pleaded guilty. Ultimately he was sentenced by Judge Ainslie-Wallace (the Judge) and now seeks leave to appeal against those sentences.
The first offence for which he was sentenced was contrary to s 302A of the Crimes Act (NSW). It alleged that on 6 May 2005 the applicant had under his control a compact disc specifically designed for the making of false passports with the intention of inducing another to accept them as genuine. This offence carries a maximum penalty of 10 years imprisonment. The second offence was the possession of $155,600 reasonably suspected of being stolen, an offence contrary to s 400.9 of the Criminal Code (Cth). The maximum penalty prescribed for this offence is imprisonment for 2 years. The third offence was money laundering involving the sum of $89,100. This is an offence contrary to s 400.5 of the Criminal Code for which there is prescribed a maximum penalty of 15 years imprisonment.
In respect of the third count the Judge took into account three offences each being the operation of a bank account contrary to the Financial Transaction Reports Act 1988 (Cth). The Judge was also asked to take into account when sentencing for the State offence two offences of dishonestly possessing a driver’s licence.
On 19 May 2006 the Judge sentenced the applicant on the second count on the indictment to a fixed term of 12 months imprisonment commencing on 6 May 2005 and expiring on 5 May 2006. On the first count she sentenced the applicant to imprisonment for a fixed term of two years to commence on 6 November 2005 and to conclude on 5 November 2007. On the third count the applicant was sentenced to “a sentence of two years with an additional term of twelve months” to date from 6 May 2006 with the non-parole period expiring on 5 May 2008.
The overall sentence imposed was one of four years with a non-parole period of three years. The sentence was to date from 6 May 2005 and the applicant is eligible to be considered for parole on 5 May 2008.
It should be noted at the outset that the third offence was a Commonwealth offence yet her Honour purported to impose a sentence in accordance with s 44 of the Crimes (Sentencing Procedure) Act 1999. No ground of appeal has been raised in relation to this formal defect in the sentencing but it is a matter that will need to be addressed regardless of the merits otherwise of the appeal.
The facts can be briefly stated. The applicant is an Indonesian citizen who last entered Australia unlawfully on 17 March 2003. He first came to this country in March 1997 but was deported on 7 April 2001 after serving a prison sentence. He then re-entered Australia on 23 July 2001 and departed on 5 February 2003 having committed further offences and outstayed his visa. He used different names to enter Australia on each occasion.
On 6 May 2005 Federal police conducted a search warrant on premises where the applicant lived with his wife and child. As a result $152,000 was found in a box in a cupboard in the bedroom. Police also located a CD Rom containing a computer program for making five Korean or Chinese passports. Two driver’s licences were found in different names but bearing the applicant’s photograph and several passport-sized photographs of different persons were also located.
In respect of the money found in the unit the applicant said that he had been given it to look after for a person he named to police. That person has been charged with offences relating to the use of false accounts.
Further investigations revealed that on 3 July 2003 a bank account was opened in one of the names used by the applicant relying upon the passport located in the applicant’s premises during the police search. Between 3 July 2003 and 23 September 2003 amounts totalling $97,000 were placed into that account. Over that period the applicant operated that account on nine occasions to send $89,100 to an account in Indonesia.
The applicant was born on 8 September 1973. At the time of his arrest he was residing with his wife of six years, also an Indonesian citizen, and a son aged three years. He has a criminal record for dishonesty offences dating from 2001. In January 2003 he was sentenced to a short term of imprisonment for a large number of dishonesty offences including making and using false instruments. He reported to the officer preparing a pre-sentence report that he had an ongoing gambling habit and occasional illegal drug use. However he said that his offending was due to an obligation he had incurred to others who had cared for his wife during his last prison sentence and while he was absent from Australia.
There was in evidence a psychological report but it contained little of relevance. The psychologist reported that the applicant was gambling heavily and incurred a debt of $5,000. He blamed his illegal activity on gambling and trying to keep from his wife that he was in debt. There were also before her Honour letters from members of the community including the applicant’s wife and a number of certificates in relation to courses he had undertaken while on remand.
The first ground of appeal complains that her Honour ought to have made all the sentences concurrent. The structure of the sentences was that each of the sentences for the first and third counts commenced six months after the commencement date for the preceding sentence; that is the sentence for the first count commenced six months after the sentence for the second count and the sentence for the third count commenced six months after that for the first count. The argument is that, because the offences were related by being part of a single episode of criminality, the sentences ought to have been made concurrent. It was asserted that the Judge failed to give reasons for not making the sentences completely concurrent and this was an error in the exercise of her discretion.
The Crown accepts that there were some common features of the three offences in that the applicant was in the business of being able to provide and use false documentation for the purposes of illegal banking transactions. However, the assertion on behalf of the applicant that it was a relevant factor that all of the documentation relevant to the offending which was found in the search of the applicant’s premises should be rejected. The fact that the evidence of a number of discrete offences is located in the one place is completely irrelevant to any question of how the sentences for those offences should be imposed.
In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both.

This issue was most recently discussed in R v MMK [2006] NSWCCA 272 where the Court stated:
[11] One of the limiting principles that constrains a sentencing court in seeking to promote the purposes of punishment is the principle of proportionality. Another is the, not-unrelated, principle of totality and it is this principle that operated in the present case. It is the application of the totality principle that will generally determine the extent to which a particular sentence is to be served concurrently or cumulatively with an existing sentence in accordance with statements of the High Court as to the operation of the principle in Mill v R (1988) 166 CLR 59; Pearce v R (1998) 194 CLR 610 and Johnson v R (2004) 78 ALJR 616.
[12] In R v Holder (1983) 3 NSWLR 245, Street CJ described the principle as follows: (at 260)
… The principle of totality is a convenient phrase, descriptive of the significant practical consideration confronting a sentencing Judge when sentencing for two or more offences. Not infrequently a straightforward arithmetical addition of sentences appropriate for each individual offence considered separately will arrive at an ultimate aggregate that exceeds what is called for in the whole of the circumstances. In such a situation the sentencing Judge will evaluate, in a broad sense, the overall criminality involved in all of the offences and, having done so, will determine what, if any, downward adjustment is necessary, whether by telescoping or otherwise, in the aggregate sentences in order to achieve an appropriate relativity between the totality of the criminality and the totality of the sentences. …
[13] In some cases the fact that a sentence for a particular offence is to be served completely concurrently with another sentence for a different offence will result in a sentence that is erroneously inadequate because it does not reflect the totality of the criminality for which the offender was to be punished for the two acts of offending: see for example R v Brown [1999] NSWCCA 323. This may be so even if the two offences arise from the same precise criminal act, such as the dangerous driving of a motor vehicle on the one occasion: R v Janceski (No 2) [2005] NSWCCA 288. The same principle has been applied to sexual assault offences arising from a single incident of sexual assault: R v Gorman (2002) 137 A Crim R 326. Although, it has been held that a determination of the extent, if any, that a sentence is to be served cumulatively with another sentence is an exercise of discretion on which minds might differ, R v Hammoud (2000) 118 A Crim R 66, that discretion is generally circumscribed by a proper application of the principle of totality.
That was a case where it was held to be appropriate to impose a sentence completely concurrent with sentences then being served by the offender even though the offence, for which sentence was imposed, was a completely separate and discrete act of serious criminality.
In the present case the Judge, having nominated the sentences for each offence, stated that she proposed to make them partially cumulative in order to achieve the overall sentence that she believed was appropriate. This was in effect a short hand way of indicating that her Honour thought that the totality of criminality encompassed by the three offences warranted a specific sentence that could only be achieved by a degree of cumulation between the three offences. There was nothing more that the Judge needed to say in order to explain why she was structuring the sentences as she did.
In my opinion this ground is not made out. Whether it was open to her Honour to impose partially cumulative sentences depends upon whether it was open to her to assess the totality of criminality of the three sentences as she did. A determination of that issue depends upon a consideration of the other two grounds of appeal.
The second ground of appeal contends that the sentence for the third count was “unduly harsh and severe”. This was an offence that involved nine criminal acts over a period of two months whereby the applicant sent money from an account to Indonesia. The account was opened in a name used by the applicant with a passport found in his unit. The overwhelming inference is that he opened the account and that it was opened for the purpose of money laundering. It is clear that the applicant was involved in a fraudulent scheme of obtaining money by the use of false identities and then transferring the money out of Australia. Just what role the applicant played is unknown. The applicant did not enter into an interview with police and gave no evidence before her Honour. It was submitted that the applicant was a secondary offender, but in relation to all the offences before her Honour he was a principal and was to be sentenced as such.
There was little in mitigation of the offences. The applicant entered into this country unlawfully shortly after he was deported and commenced offending almost immediately. He had a record for similar offences for which he had been previously sentenced to prison. It is impossible in my view to conclude that it was not open to her Honour to determine that an appropriate sentence, taking into account the further offending, was imprisonment for three years as against a prescribed maximum of 15 years for this offence and this ground fails.
The third ground of appeal is that the Judge erred in not discounting the sentence by the maximum of 25 per cent by reason of the plea of guilty. Her Honour indicated that she was applying a discount of 20 per cent for the State offence. As argued orally the ground asserted that the Judge had not give a discount for the Commonwealth offences. In this regard her Honour stated:
I take into account that he pleaded guilty and that should be recognised as reflecting a willingness to facilitate the course of justice and in this case I accept that it contains within it an element of contrition and in relation to the State offence should reflect itself in a discount of 20 per cent of the sentence otherwise to be imposed.
For my part I do not understand why it should be thought appropriate to nominate a discount in respect of State offence but not for Commonwealth matters. I cannot see the logic in such approach and I do not believe that it is warranted by anything said in the High Court in Cameron v The Queen (2002) 209 CLR 339. Markarian v The Queen (2005) 79 ALJR 1048, which concerned sentencing for Commonwealth offences, makes it quite clear that it is legitimate for a sentencing judge to indicate a percentage discount for a plea of guilty or assistance to authorities, see per Gleeson CJ, Gummow, Hayne and Callinan JJ at [24]. But it is clear that her Honour was taking into account he plea of guilty in respect of all offences, and this is made obvious by the use of the words “a willingness to facilitate the course of justice” which is the way the utilitarian value of a plea of guilty in Commonwealth matters was expressed by some members of the Court in Cameron see per Gaudron, Gummow and Callinan JJ at [13]-[15].
In so far as there was any criticism of the percentage discount awarded, the short answer is that the applicant has no entitlement to any particular discount: R v Scott [2003] NSWCCA 286; R v Heikkinen [2006] NSWCCA 50. In any event the plea of guilty came eight months after the applicant was arrested and following negotiations with the prosecutor. The pleas of guilty were conditional upon charges being withdrawn against his wife. It was open in those circumstances for the Judge to determine that the appropriate discount was less than 25 per cent regardless of whether or not the plea of guilty is said to have been given at the first available opportunity, see R v Dib [2003] NSWCCA 117. This ground of appeal fails.
In my opinion the overall sentence of four years with a non-parole period of three years was well within the Judge’s discretion except for the following point, one that was not taken as a ground of appeal but raised by the Bench with the parties during oral submissions. The issue concerns the appropriate non-parole period to be imposed when sentencing for a mix of both State and Commonwealth offences.
Two of the offences, including the most serious offence, were Commonwealth crimes. The activity in which the applicant was involved was money laundering, a Commonwealth crime, even though he committed at least one State offence in carrying out that activity. In sentencing for Commonwealth matters the Court has determined that in general an appropriate non-parole period falls between 60 and 66 per cent of the head sentence. It is to be noted that the sentence for the third count, a Commonwealth offence, contained a non-parole period that was two-thirds of the head sentence. However, by making the Commonwealth sentences partially cumulative with the State offence the non-parole component became three quarters of the total sentence, the statutory ratio for State offences, but an unusually high one for Commonwealth offences.
As has been noted, the Judge sentenced for the third count as if it were a State offence by apparently applying s 44 of the Crimes (Sentencing Procedure) Act (NSW): the Judge nominated the non-parole period first and then the balance of the term. This is not the way that a sentence is imposed for a Commonwealth offence where the total term is imposed and then the non-parole period. It seems to me that the Judge was endeavouring to structure the sentences to accord with the State provisions rather than those of the Commonwealth. Yet as has been noted the most serious offence was a Commonwealth crime and the activity was generally in contravention of Commonwealth law. It was only incidental that the applicant also offended against State laws. It seems to me in such a situation to be unfair to sentence by complying with the more severe State regime under s 44, where the statutory ratio is 75 per cent, rather than by adopting the practice for determining the non-parole period for Commonwealth offences, where the ratio is 60 to 66 per cent.
In any event it does not seem that her Honour addressed the difficulty caused by the two types of offences carrying with it two different sentencing regimes so that she made a conscious decision to apply one rather than the other and giving reasons for that choice. Frankly had her Honour done so, I cannot see how she would, in all of the circumstances of this case, been able to justify applying the State regime. It was not a case where, in applying the Commonwealth practice, a non-parole period of 75 per cent of the head sentence could be justified.
It seems to me that it is appropriate to restructure the sentences and slightly reduce the overall non-parole period to deal with the problem of the mixed offences. I wish to make it clear that in this case it is appropriate to apply the Commonwealth practice so far as the overall non-parole period is concerned but it will not always be the case just because the overall sentence being imposed is for both State and Commonwealth offences.
I propose that the appeal be allowed and the following orders made:
The sentences are quashed and in lieu the applicant is sentenced as follows:
1.On the first count and taking into account the matters on the Form 1 a fixed term of 2 years to date from 6 May 2005 and to expire on 5 May 2007.
2.On the second count a sentence of 1 year to date from 6 November 2005 and to expire on 5 November 2006.
3.On the third count and taking into account the additional matters a sentence of 3 years to date from 6 May 2006.
4.In relation to the second and third counts there is to be a non-parole period of 2 years 2 months to commence on 6 November 2005 and to expire on 5 January 2008.
PRICE J: I have read in draft form the reasons of Howie J. I agree with those reasons and with the orders proposed.

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LAST UPDATED: 24 January 2007