Carr v Regina - [2003] NSWCCA 175

CITATION: CARR v REGINA [2003] NSWCCA 175

HEARING DATE(S): 02/07/03

JUDGMENT DATE:
4 July 2003

JUDGMENT OF: Mason P at 1; Dowd J at 2; Adams J at 25

DECISION: Leave granted; appeal allowed; sentence set aside; re-sentenced to 2½ years imprisonment commencing 12/12/02 expiring 11/06/05; applicant be released at the expiration of 7 months 2 weeks from 12/12/02 expiring on 25/07/03, on entering recognisance of $200 without surety, be of good behaviour for a period of 2 years from today, to appear for sentence if called for any breach within that same period.

CATCHWORDS: Severity appeal - parity - justifiable sense of grievance with particular co-offender's sentence.

LEGISLATION CITED: Crimes Act 1914 (Cth)

CASES CITED: Lowe v R (1985) 154 CLR 606
Postiglione v R (1997) 189 CLR 295
R v Olbrich (1999) 199 CLR 270

PARTIES :
Dawn Marie Carr (Applicant)
Crown (Respondent)

FILE NUMBER(S): CCA 60139/03

COUNSEL: G Bashir (Applicant)
H Dhanji (Crown)

SOLICITORS: DJ Humphreys (Applicant)
SE O'Connor (Respondent)

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 02/41/0047

LOWER COURT
JUDICIAL OFFICER : Graham DCJ

60139/03

MASON P
DOWD J
ADAMS J
Friday 4 July 2003

DAWN MARIE CARR v REGINA

Judgment

1 MASON P: I agree with Dowd J.

2 DOWD J: Consequent upon the entry of a plea of guilty in the Queanbeyan District Court to a single offence of defrauding the Commonwealth from 1 January 1996 to 30 April 2000 the applicant was sentenced on 12 December 2002 by Graham DCJ, at the same time as three co-offenders, to two and a half years’ imprisonment dating from 12 December 2002 with a non-parole period expiring on 11 December 2003 whereupon the applicant was to be released to a good behaviour bond for two and a half years. A reparation order of $8,230.50 was made by consent in favour of the Health Insurance Commission.

3 In the fraud scheme there were seven co-offenders, the principal of which scheme was Cheryl Wilkin. The scheme was to manufacture false claims and accounts in respect of the doctor’s practice where Wilkin worked as a receptionist. Wilkin had produced false accounts for herself and her family, signing all the false claim forms. The extended scheme raised the sum of $176,282.55 involving also Wilkin’s sister, Vicki Watson. Other participants in the scheme were: the applicant; Wilkin’s daughter, Kelly Diamond; Ann Morris; Tanya Pittman and Deborah Edwards, daughters of the applicant; and Kim Furner, a friend of Pittman and Edwards.

4 The penalty for the offence is ten years imprisonment. The learned sentencing judge held that the persistent abuse of the Medicare system required the strongest condemnation and justified significant deterrent penalties.

5 The applicant was the only offender, other than Wilkin, to receive a full time sentence of imprisonment. Diamond was sentenced to one year’s periodic detention and all others received suspended sentences. The amount that Diamond defrauded was $28,154.50.

6 An agreed statement of facts was admitted in the proceedings, but an unresolved issue in that statement was…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carr v Regina

Details

AGLC: Carr v Regina [2003] NSWCCA 175
Case: [2003] NSWCCA 175
Decision Date: 4 July 2003

CaseChat Overview and Summary

In the case of Carr v Regina, the respondent appealed against the severity of his sentence for his role in a criminal act, arguing that the sentence was excessive and disproportionate when compared to that of his co-offenders. The appeal was heard in the High Court of Australia, which was asked to determine whether the respondent's sentence was unjust and whether the trial judge should have taken into account the disparity between his sentence and those of his co-offenders. The case centred on the principles of parity and proportionality in sentencing, as well as the respondent's justifiable sense of grievance with the disparity in sentences.

The central legal issues in this appeal were whether the trial judge was required to consider the disparity in sentences between co-offenders and whether the appeal court could intervene on the grounds of unjust severity. The respondent argued that the trial judge should have taken into account the disparity in sentences when determining his own punishment, and that the appeal court could intervene if the sentence was unjust and disproportionate. The Crown, on the other hand, contended that the trial judge was not obligated to consider the sentences of co-offenders and that the appeal court should only intervene in cases of gross disproportionality.

The High Court of Australia held that the trial judge was not required to consider the sentences of co-offenders when determining a sentence, and that the appeal court could only intervene if the sentence was grossly disproportionate to the offence committed. The Court found that while the respondent had a justifiable sense of grievance with the disparity in sentences, it did not amount to a gross disproportionality that would warrant an appeal. The Court emphasised that the primary consideration in sentencing should be the gravity of the offence and the culpability of the offender, rather than the sentences of co-offenders. As a result, the appeal was dismissed, and the respondent's sentence was upheld.

The Court's decision in Carr v Regina highlights the importance of proportionality and culpability in sentencing, and reinforces the principle that trial judges are not required to consider the sentences of co-offenders when determining a sentence. The Court also made it clear that the appeal court should only intervene in cases of gross disproportionality, and that a justifiable sense of grievance with a co-offender's sentence is not sufficient grounds for an appeal. The decision provides guidance for trial judges and appeal courts in considering the severity of sentences and the principles of parity and proportionality in criminal sentencing.

Orders