Hancock v R

[2012] NSWCCA 200

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation:	Hancock v R [2012] NSWCCA 200
Hearing dates:	7 August 2012
Decision date:	14 September 2012
Before:	McClellan CJ at CL at [1] RA Hulme J at [2] Schmidt J at [3]
Decision:	Leave to appeal be granted but the appeal dismissed.
Catchwords:	CRIMINAL LAW - appeal - appeal against sentence - whether he sentencing process was miscarried - Federal offences and State offences - whether sentences imposed were unusually harsh and severe - whether sentencing judge erred in commencing his sentencing exercise at an excessive level - whether sentencing judge erred in failing to make sufficient allowance for assistance - whether sentencing judge erred in failing to maintain parity - whether sentencing judge erred in failing to take delay into account - whether sentencing judge erred in failing to observe the principle of totality - whether the sentencing judge erred in failing to find special circumstances with respect to the whole sentence
Legislation Cited:	Crimes Act 1900 Crimes Act 1914 (Cth) Criminal Code Act 1995 Crimes (Sentencing Procedure) Act 1999 Drugs Misuse and Trafficking Act 1985
Cases Cited:	Caristo v R [2011] NSWCCA 7 Danial v R [2008] NSWCCA 15 Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 Green v R [2011] HCA 49; (2011) 244 CLR 462 Johnson v R [2004] HCA 15; (2004) 205 ALR 346 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 Power v The Queen [1974] HCA 26; 131 CLR 623 R v Ma [2004] NSWCCA 92; (2004) 145 A Crim R 434 R v MAK; R v MSK (2006) [2006] NSWCCA 381; (2006)167 A Crim R 159 R v Suares-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577 R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151 R v TAE [2005] NSWCCA 29 R v Welden [2002] NSWCCA 475; (2002) 136 A Crim R 55
Category:	Principal judgment
Parties:	Tony (aka Phillip) Hancock (Applicant) Regina (Respondent)
Representation:	Counsel: Mr MC Ramage QC (Applicant) Mr CP O'Donnell (Respondent) Solicitors: LN Legal (Applicant) Commonwealth Director of Public Prosecutions (Respondent)
File Number(s):	2009/46635
Decision under appeal	Date of Decision: 2011-09-01 00:00:00 Before: Solomon DCJ File Number(s): 2009/46635

Judgment

1. McCLELLAN CJ at CL:I agree with Schmidt J.

1. RA HULME J: I agree with Schmidt J.

1. SCHMIDT J: The applicant admitted to being the head of a crime syndicate involved in the manufacture, distribution and use of false identity documents, such as drivers licences, Medicare cards, bank ATM cards and credit cards which generated earnings for him of over $100,000. He pleaded guilty in the Local Court to ten offences, nine of which related to the activities of the syndicate. The tenth offence was concerned with supplying 55.1 grams of methylamphetamine. This offence was unrelated to the activities of the syndicate.

1. The applicant was sentenced to an effective total sentence of 9 years 7 months, with a non-parole period of just below 7 years 2 months, Solomon DCJ having taken a further 4 offences into account on sentencing. The sentence commenced on 1 July 2009. The applicant is eligible for parole on 28 August 2016. The sentence expires on 27 February 2019.

1. The applicant seeks leave to appeal his sentence.

The offences and the sentences imposed

1. The offences of which the applicant was convicted and the sentences imposed were:

(1)Conspiring with Kha Weng Foong between 18 February 2009 and 1 July 2009 to make false instruments - an offence under New South Wales common law - maximum penalty at large. Sentenced to a fixed term of imprisonment of 6 years and 8 months, commencing on 1 July 2009 and expiring on 29 February 2016.

(2)Conspiring with Henley Han between 18 February 2009 and 1 July 2009 to make false instruments - an offence under New South Wales common law - maximum penalty at large. Sentenced to a fixed term of imprisonment of 6 years and 8 months, commencing on 1 July 2009 and expiring on 29 February 2016.

(3)Conspiring with Bing Xian Yeoh and Mei Ch'eng (Mary) Che between 18 February 2009 and 1 July 2009 to cheat and defraud financial and retail institutions - offence under New South Wales common law - maximum penalty at large. Sentenced to a fixed term of imprisonment of 4 years and 10 months commencing on 1 July 2009 and expiring on 30 April 2014.

(4)Conspiring with Quoc Du Hua between 18 February 2009 and 1 July 2009 to deal with the proceeds of crime - an offence under New South Wales common law - maximum penalty at large. Sentenced to a fixed term of imprisonment of 4 years and 10 months, commencing on 1 July 2009 and expiring on 30 April 2014.

(5)Conspiring with Yung Feng Yun between 18 February 2009 and 1 July 2009 to cheat and defraud financial and retail institutions - an offence under New South Wales common law - maximum penalty at large. Sentenced to a fixed term of imprisonment of 4 years and 10 months commencing on 1 July 2010 and expiring on 30 April 2015.

(6)Knowingly dealing with the proceeds of crime, namely retail gift cards, tobacco, mobile telephone recharge cards, perfumes, electronic goods and jewellery between 18 February 2009 and 1 July 2009 - an offence under s 193B(2) of the Crimes Act, 1900 (NSW) - maximum penalty 15 years imprisonment. Sentenced to a fixed term of imprisonment of 4 years and 10 months commencing on 1 July 2009 and expiring on 30 April 2014.

(7)One offence of having in his custody on 1 July 2009 false instruments, namely forty-one credit cards and four Medicare cards with the intention that persons unknown would use them to induce another person to accept them as genuine and do some act to that person's or another person's prejudice - under s 302 of the Crimes Act, 1900 (NSW) - maximum penalty 10 years imprisonment. Sentenced to a fixed term of 2 years and 5 months commencing on 1 July 2012 expiring on 30 November 2012.

(8)One offence of dishonestly dealing in personal information on 18 April 2009, namely credit card numbers xxxx and xxxx without the consent of the owners- offence under s 480.4 of the Criminal Code Act 1995 (Cth) - maximum penalty 5 years imprisonment. Sentenced to a fixed term of 2 years and 2 months with no recognisance release order commencing on 1 July 2010 expiring on 31 August 2012.

(9)One offence between 18 February 2009 and 1 July 2009 of dealing with money or property, namely credit card data intending that the money or property would become an instrument of crime and at the time of the dealing, the value of the money or property was $100,000 or more - offence under s 400.4(1) of the Criminal Code Act 1995 (Cth) - maximum penalty 20 years imprisonment. Sentenced to a fixed term of 3 years and 9 months with no recognisance release order commencing on 1 July 2010 and expiring on 31 March 2014.

(10)One offence of supplying a prohibited drug namely methylamphetamine between 10 March 2009 and 15 April 2009 - offence unde s 25(1) of the Drug Misuse and Trafficking Act, 1985 (NSW) - maximum penalty 15 years imprisonment. Sentenced to a non-parole of 1 year and 6 months commencing on 29 February 2015 and expiring on 28 August 2016 and a further term of imprisonment of 2 years and 6 months expiring on 28 February 2019.

1. Taken into account on sentence were further four offences of :

(1)Dishonestly dealing in personal financial information on 20 April 2009, namely credit card number xxxx without the consent of the owner - offence under s 480.4 of the Criminal Code (Cth) - maximum penalty for 5 years imprisonment;

(2)Dishonestly dealing in personal financial information on 2 June 2009, namely 17 nominated credit card numbers without the consent of the owners - offence under s 480.4 of the Criminal Code (Cth) - maximum penalty for 5 years imprisonment);

(3)Dishonestly dealing in personal financial information, namely six nominated credit card numbers on 24 June 2009 without the consent of the owners - offence under s 480.4 of the Criminal Code (Cth) - maximum penalty 5 years imprisonment); and

(4)Dishonestly dealing in personal financial information on 24 June 2009, namely credit card numbers xxxx and xxxx without the consent of the owners - an offence under s 480.4 of the Criminal Code (Cth) - maximum penalty 5 years imprisonment.

Grounds of appeal

1. The applicant advanced 8 grounds on which he submitted leave to appeal would be granted:

"(1)The sentencing process miscarried;

(2)The sentences imposed were unusually harsh and severe;

(3)The sentencing judge erred in commencing his sentencing exercise at an excessive level;

(4)The sentencing judge erred in failing to make sufficient allowance for assistance;

(5)The sentencing judge erred in failing to maintain parity;

(6)The sentencing judge erred in failing to take delay into account;

(7)The sentencing judge erred in failing to observe the principle of totality;

(8)The sentencing judge erred in failing to find special circumstances with respect to the whole sentence.

1. Leave to appeal was opposed by the Crown on all grounds.

The facts

1. The applicant gave evidence on sentencing, accepting what was indicated in the agreed statement of facts, that he was the head of the syndicate. The applicant obtained compromised credit card data from various sources, which he supplied to Kha Weng Foong, who produced high quality credit cards and Medicare cards, which he later collected. He also provided fictitious names to Henley Han, who produced false identity documents, including NSW drivers licenses, which he then also collected.

1. Quoc Du Hua was the applicant's peer in the syndicate. He made arrangements with the applicant as to the workings of the syndicate and negotiated the exchange of goods and money with the applicant. Yung Feng Yun was one of the supervisors of the shoppers to whom the applicant supplied the false identity and credit cards. The shoppers made purchases, which they handed to Yun, who waited in a car parked nearby. Sock Meng Kee supervised another group of shoppers and remitted money overseas for the applicant.

1. The applicant's daughter, Mei Ch'eng (Mary) Che received proceeds from the use of false identity and credit cards provided by the applicant in Victoria. Bing Xian Yeoh supervised a group of shoppers in Victoria and collected goods which he handed to her in return for payment.

1. The Facts relevant to each offence to which his Honour referred in his sentencing remarks were:

"Offence 1 - Conspiracy to make false Instruments with Foong

10.The offender conspired with Foong to make false

instruments between 18 February 2009 to 1 July 2009. During this

period Foong acquired the material and machinery required to

produce high quality false credit cards. At the request of the offender Foong used these materials and machinery to manufacture false credit cards which he subsequently provided to the offender in return for a financial reward.

11.The offender subsequently provided the false credit cards manufactured by Foong to supervise the various groups of shoppers in Sydney and Melbourne. The supervisors included Kee and Yun in Sydney and Che and Yeoh in Melbourne. The "shoppers" used the credit cards to purchase valuable goods from various retail outlets. The goods purchased included laptop computers, mobile phone recharge cards, postage stamps, tobacco, liquor and perfume, which were easy to resell. The offender subsequently received the goods or proceeds from the reselling of the goods. The offender provided many of the goods to Hua in return for payment.

12.During the period of conspiracy the offender regularly received the details of compromised credit card data including credit card numbers and card holder numbers via SMS from a male person known as Kwan Seong Wong in Spain and from other contacts in Malaysia and Australia. The offender regularly forwarded this data to Foong and the offender [sic Han] to enable them to manufacture the false credit cards and identification documents. The offender visited Foong's residence in Kings Cross on a number of occasions to collect the manufactured credit cards. On other occasions Foong sent batches of completed credit cards to the offender by Australia Post.

Offence number 2 - Conspiracy to make false instruments

19.The offender conspired with Han to make false instruments between 18 February 2009 and 1 July 2009. During this period Han sourced the materials and machinery required to produce high quality false identification documents including New South Wales driver's licences. At the request of the offender, Han used these materials and machinery to manufacture false identification documents which he subsequently provided to the offender in return for a financial reward.

20.The offender subsequently provided the false identification documents manufactured by Han and false credit cards manufactured by Foong to supervisors of various groups of "shoppers" in Sydney and Melbourne. Supervisors including Kee and Yun in Sydney and Che and Yeoh in Melbourne. Shoppers used the credit cards and identification documents to purchase valuable goods from various retail outlets. The goods purchased included laptop computers, mobile phone recharge cards, postage stamps, tobacco, liquor and perfume, which are easy to resell. The offender subsequently received the goods or proceeds from the re-selling of the goods. The offender provided many of the goods to Hua in return for payment.

21.During the period of the conspiracy, the offender regularly received the details of compromised credit card data including credit card numbers and cardholders via SMS from Kwan Seong Wong in Spain and from other contacts in Malaysia and Australia.

Offence number 3 - Conspiracy to cheat and defraud with Yeoh and Che

28.The offender conspired with Yeoh and Che to cheat and defraud financial and retail institutions between 18 February 2009 and 1 July 2009. During this period Han and Foong sourced the materials and machinery required to produce, respectively, high quality false identification documents including New South Wales driver's licences (in the case of Han) and high quality false credit cards (in the case of Foong). At the request of the offender, Han and Foong used these materials and machinery to manufacture false identification documents and credit cards which they subsequently provided to the offender in return for financial reward.

29.The offender subsequently provided the false identification documents manufactured by Han and false credit cards manufactured by Foong to supervisors of various groups of "shoppers" in Sydney and Melbourne. The supervisors included Kee and Yun in Sydney and Che and Yeoh in Melbourne. The "shoppers" used the credit cards and identification documents to purchase valuable goods from various retail outlets.The goods purchased included laptop computers, mobile phone recharge cards, postage stamps, tobacco, liquor and perfume, which were easy to resell. The offender subsequently received the goods or proceeds from the reselling of the goods. The offender provided many goods to Hua in return for payment.

30. Yeoh was an integral part of the criminal enterprise led by the offender which involved the fraudulent use of credit card data without consent owned by financial institutions based locally and abroad. Yeoh purchased goods using credit cards supplied to him through the operation of a syndicate led by the offender. Each card was used to obtain property worth an average $200 to $300. However, occasionally a card was used to purchase property over $2,000.

37. During the course of this conspiracy the offender also maintained regular contact with Che. On 2 March 2009 the offender telephoned Che and discussed whether the "mailbags" had been sold yet as he needed to pay for forged credit cards. The offender said, "There are thirty mailbags with stocks worth about $14,000." Che and the offender discussed extensive details of their business in a telephone call on 20 May 2009. On 21 May 2009 the offender sent a series of SMS messages to Che detailing various goods including laptop computers and prices. The offender asked Che to transfer $2,700 to an ANZ account on 23 May 2009. On 24 May 2009, the offender asked Che if it was okay to sell the Rolex watch. Che said it was. The offender instructed Che to send it to him.

Offence number 4 - Conspiracy to deal with proceeds of crime with Hua

39. Between 18 February 2009 and 1 July 2009, the offender and Hua conspired to deal with the proceeds of crime, namely goods purchased with false credit cards through the operation of the criminal enterprise run by the defendant. The offender and Hua met on a number of occasions during the period and also communicated by telephone.

Offence number 5 - Conspiracy to cheat and defraud with Yun

46. The offender conspired with Yun to cheat and defraud financial and retail institutions between 18 February 2009 and 1 July 2009. During this period Han and Foong sourced the materials and machinery required to produce respectively high quality false identification documents including New South Wales driver's licences (in the case of Han) and high quality false credit cards (in the case of Foong). At the request of the offender Han and Foong used these materials and machines to manufacture false identification documents and credit cards which they subsequently provided to the offender in return for a financial reward.

47.The offender subsequently provided the false identification documents manufactured [by] Han and false credit cards manufactured by Foong to supervise various groups of shoppers in Melbourne and Sydney. The supervisors included Kee and Yun in Sydney and Che and Yeoh in Melbourne.

48.Yun was an integral part of the criminal enterprise led by the offender which involved the fraudulent use of credit card data without consent owned by financial institutions based locally and abroad. Yun and others associated with him ...purchased goods using false credit cards supplied to him through the operation of the syndicate led by the offender. Yun subsequently met the offender and provided goods to the offender.

Offence number 6 - Knowingly deal with the proceeds of crime between 18 February 2009 and 1 July 2009

53.During the period of the conspiracies referred to above between 18 February 2009 and 1 May 2009 the offender received goods purchased with false credit cards from various members of the shopping syndicates involved in the criminal enterprise led by the offender. These included retail gift cards, tobacco, mobile telephone recharge cards, perfumes, electronic goods, alcohol and jewellery. The offender negotiated the exchange of some ..of these goods for money with Hua.

54.When the offender's premises were searched on 1 July 2009, police located: numerous gift cards from David Jones, Bunnings, Myer, K-Mart and elsewhere; thirteen mobile telephones; a number of SIM cards; two laptop computers; a Rolex watch; numerous bottles of Johnny Walker blue, black and green label; Hennessy and Remy and Martin Cognac and Jack Daniels Bourbon, two cartons of Winfield Blue cigarettes and a Rolex watch.

Offence Number 7 - Having custody of false instruments on 25 June 2009

55. This charge arises out of the events referred to on 25 June 2009. Foong was observed to place a number of small white packages into his letter box at 5/5 - 7 Earl Place, Potts Point. These were confirmed covertly by police who observed there was a total of five packages containing a total of four fake Medicare cards and forty-one fake credit cards.

Offence Number 8 - Dishonestly deal in personal information on 18 April 2009

56.This offence was committed by the offender on 18 April 2009 when he sent details of two credit card numbers in the name "Albert K Wong" to Foong by SMS.

Offence Number 9 - Dealing in money or property valued in excess of $100,000 and the credit card data intended to become an instrument of crime.

57.Between 18 February 2009 and 1 July 2009 the offender dealt with a significant amount of credit card data worth in excess of $100,000. During that period the offender transferred or caused to be transferred offshore a significant sum of money being the proceeds of the use of that credit card data. The amounts so transferred was in excess of $AUS100,000. When interviewed by police on 22 December 2009, the offender admitted to gambling some of the proceeds of the credit card scheme and sending about $AUS100,000 of the proceeds of the credit card scheme to Macau.

Offence Number 10 - Supply prohibited drug

58.Between 10 March 2009 and 15 April 2009 the offender made arrangements in a series of telephone conversations with a man named "Khaled" to purchase drugs and send them via Australia Post from Sydney to Melbourne. The offender arranged for the package containing the drugs to be sent to Melbourne in early April 2009. It was addressed to Mr James, Post Office Box 1082, Brunswick from Mr Way 6 Beamish Street, Campsie. When intercepted from the postal system and examined by police the package was found to contain a black credit card holder containing two individual plastic sealed clip bags of a white crystalline substance. The substance when later analysed was found to comprise a total of 55.1 grams of methamphetamine and a purity between 10% and 13.8%. During subsequent telephone calls the offender and Khaled discussed the missing package and the offender said they could not do this any more because it was too risky and the potential losses too high.

I now turn to the offences contained in the s 16BA document and I read from the facts:

The first offence on 16BA Schedule, being dishonestly deal in personal financial information on 20 April 2009

59. This offence was committed by the offender on 20 April 2009 when he sent the details of three credit card numbers to Foong by SMS.

The second offence on 16BA Schedule, being dishonestly deal in

personal or financial information on 2 June 2009.

60.This offence was committed by the offender on 2 June 2009 when he sent the details of seventeen credit cards to Foong by SMS.

Third offence on 16BA Schedule, being dishonestly deal in personal information on 24 June 2009.

61.This offence was committed by the offender on 24 June 2009 when he sent the details of six credit card numbers to Foong by SMS.

Fourth offence on 16BA Schedule, dishonestly deal in personal information on 24 June 2009.

62.This offence was committed by the offender on 24 June 2009 when he sent the details of two credit numbers to Foong via SMS."

The sentencing remarks

1. His Honour found that the offences were serious, as reflected in the maximum penalties imposed by the Crimes Act 1900, the Criminal Code Act 1995 (Cth) and the Drug Misuse and Trafficking Act 1985. On the general facts and the applicant's evidence, he was satisfied that the applicant was the leader of the criminal syndicate, which included persons who manufactured and distributed false credit cards and identification documents used to purchase goods from retail outlets.

1. He found that the syndicate consisted of three tiers. The third tier involved those who organised shoppers to purchase goods with false credit cards. The second tier involved those who manufactured the cards and false identification documents. In the first tier was the applicant, the mastermind of the syndicate, who controlled those involved in the second and third tiers. His Honour found that the applicant's actions were motivated by greed and that he had obtained substantial financial reward, by receiving 5% of the proceeds of the sale of goods fraudulently obtained by the use of the false cards.

1. His Honour noted that such criminal syndicates had caused substantial financial loss to retailers and financial institutions. He took the view that that the sentences imposed on the applicant had to contain significant elements of individual and general deterrence.

1. His Honour found that the offence of supplying 55.1 grams of methylamphetamine between March 2009 and 15 April 2009, was also clearly for substantial financial gain.

1. His Honour accepted that the sentences imposed for offences 1 to 5 should be concurrent, as the acts involved could have been the subject of one conspiracy count. He also noted that apart from offence number 7 and offence numbers 3 and 4 in the s 16BA document, all offences in respect of which the applicant was to be sentenced were committed while he was subject to conditional liberty. The applicant had been dealt with by the District Court on 9 June 2006 in respect of 11 counts of having false instrument with intent to use and was placed on a 3 year good behaviour bond. His Honour concluded that committing further offences while on conditional liberty aggravated the applicant's criminality in respect of offences 1 to 7 and 10. The reference to offence 7 appears to have been an error, his Honour having noted earlier that this offence was not committed while subject to conditional liberty. He also noted that the applicant's criminal record was to be taken into account, when considering the question of the likelihood of the applicant re-offending.

1. His Honour then dealt with subjective matters, noting the applicant's birth in Indonesia in 1956; his relocation to China at age 4; his move to Macau at age 17; and he having lived in Australia since 1997. He noted that the applicant's parents, who were in ill health, lived in Macau and that he had supported them in the past. He noted the applicant's involvement in unsuccessful business ventures in Macau and Australia and his history of gambling and poor financial management, prior to his involvement in the syndicate.

1. His Honour referred to the report of the clinical psychologist Mr Borenstein, who diagnosed pathological gambling, which in his opinion correlated with the applicant's criminal behaviour. His Honour observed that this did not excuse the applicant's offending, but perhaps explained parts of his behaviour. He also noted past rehabilitation, which had not prevented the offending for which the applicant was being sentenced.

1. His Honour noted the pleas entered at the earliest opportunity, accepting for the State offences, that the pleas had significant utilitarian benefit. As to the Commonwealth offences, his Honour accepted that the pleas indicated a willingness to facilitate the course of justice. His Honour also noted the applicant's evidence of contrition, which he accepted was also evidenced by the pleas.

1. His Honour found that there were reasonable prospects of rehabilitation, given the applicant's true contrition; his disclosure of his prior conviction for similar offences, of which the Crown was not aware; his significant assistance to police; and his agreement to undertake a treatment plan suggested by Mr Borenstein.

1. His Honour took account of the applicant's state of health. He also took account of the arrest on 1 July 2009; the early indication of a willingness to plead guilty and that the delay in sentencing must have had an adverse psychological effect on the applicant. His Honour also had regard to evidence of assistance given to police. He concluded that the applicant should receive a combined discount for his guilty plea and assistance of 40%, with the discount for future assistance identified to be 10%.

1. His Honour then considered questions of parity, noting as to offence number 1, that Kha Weng Foong had been sentenced to a term of imprisonment of 4 years and 3 months, with a non-parole period of 2 years and 6 months for his participation in the conspiracy. Foong was on the second tier of the criminal enterprise. He was also sentenced in respect of seven lesser offences, directly related to the criminal enterprise. Those sentences were to be served concurrently with the sentence for the conspiracy offence.

1. His Honour noted as to offence number 2, that another co-conspirator, Henley Han was sentenced to a term of imprisonment of 3 years and 9 months, with a non-parole period of 2 years and 3 months for his participation in the conspiracy. He, too, was in the second tier of the criminal enterprise. He was also sentenced in respect of three lesser offences, directly related to the criminal enterprise. Those sentences were also to be served concurrently with the sentence for he conspiracy offence.

1. His Honour also noted as to offence number 3, that another co-conspirator, Bing Xian Yeoh, was sentenced to a term of imprisonment of 3 years with a non-parole period of 2 years and 3 months for his participation in the conspiracy. He was in the third tier of the criminal enterprise. He was also sentenced in respect of two lesser offences directly related to the criminal enterprise. Those sentences were also to be served concurrently with the sentence for the conspiracy offence.

1. His Honour also noted as to offence number 4, that two other co-conspirators had been sentenced. (This should have been a reference to offence number 3.) Mei Ch'eng Che (Mary Che), whose sentence of 2 years, with a non-parole period of 1 year for her participation in the conspiracy was reduced by 5 months 7 days for pre-sentence custody, with the result a non parole period of 6 months 23 days and a further period of imprisonment of 1 year. She was in the third tier of the criminal enterprise. His Honour noted that in her sentencing, account had been taken of the fact that she had spent 5 months and 7 days in custody prior to sentencing. His Honour noted that he had formed the view that she had entered the criminal enterprise as a consequence of the applicant's influence on her. She was also sentenced in respect of two lesser offences, directly related to the criminal enterprise. Those sentences were also to be served concurrently with the sentence for he conspiracy offence.

1. The co-offender sentenced in relation to offence number 4 was Quoc Du Hua, who was sentenced to a term of imprisonment of 3 years, with a non-parole period of 2 years, not for his participation in the conspiracy, but for six substantive offences, one of knowingly participating in a criminal group and five of deal with the proceeds of crime, knowing that it was proceeds of crime and intending to conceal that it was proceeds of crime. He was in the third tier of the criminal enterprise. His Honour noted that one sentence was partially accumulated, in order to reflect the totality of Hua's offending.

1. His Honour also noted as to offence number 5, that Haeslar DCJ had sentenced another co-conspirator, Yung Feng Yun, to a term of imprisonment of 2 years and 3 months with a non-parole period of 1 year and 3 months for his participation in the conspiracy. He was in the third tier of the criminal enterprise. He was also sentenced in respect of seven lesser offences directly related to the criminal enterprise. A further 10 matters related to the criminal enterprise contained on a Form 1 were also taken into account on sentencing. Four of the sentences were partially accumulated, including the sentence imposed for the conspiracy offence. The total sentence was 3 years, with a non-parole period of 2 years.

1. His Honour also took account of the sentence imposed on another member of the syndicate, Sock Meng Kee, who was sentenced in respect of 5 offences, of knowingly participate in a criminal group; dishonestly obtain valuable thing by deception; having a false instrument in her custody; dealing with proceeds of crime knowing that it was proceeds of crime; and deal with proceeds of crime being reckless as to whether it was proceeds of crime. Five lesser offences were taken into account on a Form 1, the overall sentence imposed being 2 years and 6 months, with a non-parole period of 1 year and 8 months. She was in the third tier of the syndicate.

1. His Honour also took into account that each of the applicant's offences could have been dealt with summarily and in relation to offences number 8 and 9, the relevant provisions of s 16A of the Crimes Act 1914 (Cth). His Honour also noted his view that no sentence other than a full-time custodial sentence was appropriate.

1. His Honour found special circumstances in respect of offence number 10, the drug offence, the applicant not having previously served a full-time custodial sentence. The sentence for that offence was partially accumulated. His Honour noted that despite this finding, the structure of the sentence did not permit him to reduce the overall sentence to be served, below the statutory ratio of 75%.

Ground 1 - the sentencing process miscarried

1. This ground was advanced in relation to the sentences imposed for the Commonwealth offences, offences 8 and 9, as well as in relation to the offences 1 - 7, which were State offences.

Offences 8 and 9 - the federal offences

1. The various offences were committed as follows:

• between 18 February and 1 July 2009:

• - offence 9, of dealing with credit card data intending that money or property would become an instrument of crime;

• - offences 1 to 5 the common law conspiracy offences; and

• - offence 6, knowingly dealing with the proceeds of crime:

between 10 March 2009 and 15 April 2009 - offence 10, the drug offence

18 April 2009 - offence 8, of dishonestly dealing in personal information without the consent of the owner of the credit card.

1 July 2009 - offence 7, having in custody false instruments, was committed on.

1. The longest of the fixed term sentences, which were imposed for offences 1 and 2, commenced on 1 July 2009 and expire on 29 February 2016. The non-parole period fixed for the drug offence expires on 28 August 2016. In the result, that is the earliest date on which the applicant will be eligible to be released on parole. The concurrency and accumulation which his Honour fixed in sentencing the applicant for his various offences was:

• Fixed term from 1 July 2009 expiring on 29 February 2016, (6 years and 8 months):
• - offences 1 and 2

• Fixed term from 1 July 2009 expiring on 30 April 2014 (4 years and 10 months):
• - offences 3, 4, 5

• Fixed term from 1 July 2010 expiring on 31 August 2012 (2 years and 2 months):
• - offence 8

• Fixed term from 1 July 2010 expiring on 30 November 2012 (2 years and 5 months):
• - offence 7

• Fixed term from 1 July 2010, expiring on 31 March 2014 (3 years and 9 months):
• - offence 9
• Fixed term from 1 July 2010 expiring on 30 April 2015 (4 years and 10 months:

- offence 6

• Non parole period from 29 February 2015 to 28 August 2016 (1 year and 6 months) and a further term of imprisonment expiring 28 February 2019 (2 years and 6 months, total term 4 years):
• - offence 10

1. The applicant complained that in sentencing for offences 8 and 9, his Honour did not comply with the requirements of s 19AB(3) of the Crimes Act (Cth). Section 19AB relevantly provides:

"19ABWhen court must fix non-parole period or make a recognizance release order

(1)Subject to subsection (3), where:

(a)a person is convicted of a federal offence, or of 2 or more federal offences at the same sitting; and

(b)a court imposes on the person a federal life sentence, or a federal sentence that exceeds, or federal sentences that, in the aggregate, exceed 3 years; and

(c)at the time the sentence or sentences are imposed, the person is not already serving or subject to a federal sentence;

the court must either:

(d)fix a single non-parole period in respect of that sentence or those sentences; or

(e)make a recognizance release order.

(2) ....

(3) Where, but for this subsection, a court would be required by this section to fix a non-parole period, or make a recognizance release order, in respect of a person, the court may decline to do either if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate.

(4) Where the court decides that neither a non-parole period nor a recognizance release order is appropriate, the court must:

(a) state its reasons for so deciding; and

(b) cause the reasons to be entered in the records of the court."

1. At the time of sentencing, the applicant was not serving or subject to a federal sentence. In those circumstances, under s 19AB(1) of the Crimes Act (Cth) a single non-parole period, or a recognisance release order would ordinarily be made in respect of counts 8 and 9, they being federal offences. His Honour declined to impose either, because of his conclusion that the sentences imposed for those offences, of 2 years and 2 months and 3 years and 9 months respectively, should be made entirely concurrent with the sentence imposed in respect of offence 1.

1. That was an approach which was open to his Honour, given the proper construction of s 19AB, in circumstances where he had accepted the case advanced for the applicant below, as to how the sentences should be structured.

1. On sentencing, the approach urged for the applicant was that counts 1 to 5 should have been charged as a single conspiracy to cheat and defraud and the individual counts incorporated in the one offence, as overt acts. That approach had been discussed, but rejected by the Crown, prior to sentencing. It was submitted in those circumstances, that the sentence for counts 1 to 9 should be viewed as arising from a single course of criminal conduct. To ensure parity with the other offenders, it was urged that the sentences should be made significantly concurrent, apart from the sentence imposed in respect of the drug offence. Even in relation to that offence, it was submitted for the applicant that the principle of totality required that there be a considerable degree of concurrence. His Honour accepted those submissions. In the result he did not impose a non-parole period, or a recognisance release order for counts 8 or 9.

1. The proper construction of s 19AB depends not only upon its own terms. It must be approached in the context of other relevant provisions of the Crimes Act (Cth) and their purpose. Section 19AB is to be found in Part IB - Sentencing, imprisonment and release of federal offenders.

1. There provided by s 16A(1) is an obligation to impose a sentence that 'is of a severity appropriate in all the circumstances of the offence'. Section 16A(2) specifies various matters which a sentencing court must take into account 'as are relevant and known to the court'. Relevantly in this case they included the question of discount for the applicant's willingness to facilitate the course of justice and his assistance. His Honour also had to have regard to questions of accumulation and concurrence of sentences, as well as considerations of totality.

1. In sentencing for the two federal offences, his Honour was expressly obliged to consider the sentences imposed for the State offences, s 16B providing:

"16B Court to have regard to other periods of imprisonment required to be served

In sentencing a person convicted of a federal offence, a court must have regard to:

(a) any sentence already imposed on the person by the court or another court for any other federal offence or for any State or Territory offence, being a sentence that the person has not served; and

(b) ...."

1. His Honour was also obliged to comply with the requirements of s 19(3), which provides:

"(3)Where:

(a) a person is convicted of a federal offence or offences, and a State or Territory offence or offences, at the same sitting; and

(b) the person is sentenced to imprisonment for more than one of the offences;

the court must, by order, direct when each federal sentence commences but so that:

(c) no federal sentence commences later than the end of the sentences the commencement of which has already been fixed or the last to end of those sentences; and

(d) if a non-parole period applies in respect of any State or Territory sentences - the first federal sentence to commence after the end of that non-parole period commences immediately after the end of the period."

1. His Honour also had to adhere to s 19AJ, which provides:

"19AJ Court may only fix non-parole periods or make recognizance release orders for federal sentences of imprisonment

This Division does not authorise a court to fix a single non-parole period, or make a recognizance release order, in respect both of federal sentences of imprisonment and State or Territory sentences of imprisonment."

1. It follows that in construing s 19AB, consideration must be given to the express recognition in the Crimes Act (Cth) that as here, a court may be sentencing an offender in the one sitting in respect of convictions for both State and Federal offences, or that the offender may already be serving other sentences, to which attention must be paid in the sentencing exercise. While the Crimes Act (Cth) does not permit a single non-parole period to be fixed for both State and Federal offences, it does require the sentencing judge to ensure that there are no gaps between the end of any non-parole period fixed for any other offence, and the commencement of the sentence for a Federal offence. The sentencing court must also consider the sentences imposed for other State and Federal offences, when determining the sentence to be imposed for any particular Federal offence.

1. Given all of those other requirements, it is not surprising that by s 19AB(3) a sentencing judge is also given a discretion not to impose a non-parole period or recognisance order, in respect of a Federal offence 'if, having regard to the nature and circumstances of the offence or offences concerned and to the antecedents of the person, the court is satisfied that neither is appropriate'. As discussed in R v Suares-Mejia [2002] WASCA 187; (2002) 131 A Crim R 577 at [17], these are the very matters generally relevant to the sentencing exercise.

1. Contrary to the submissions advanced for the applicant, properly construed, the discretion granted by s 19AB(3) is a wide one, to be exercised having regard not only to the nature and circumstances of the particular Federal offence for which an offender is being sentenced, but also to the offender's antecedents. In this case one of the circumstances of counts 8 and 9 which his Honour had to consider, was that they were but two of a series of offences committed by the applicant while operating the criminal syndicate of which he was the mastermind, and for which he was then being sentenced.

1. The Crimes Act (Cth) contemplates that an offender may be being sentenced at the one time for a number of offences, in circumstances which will have an impact upon whether or not a non-parole period or recognizance release orders are appropriate to be imposed for a particular offence. It also contemplates that the offender's antecedents may be relevant to consider, for example where an offender is already serving a term of imprisonment for other State or Federal offences. It is in all such circumstances, that the discretion given by s 19AB (3) not to impose a non-parole period or recognizance release order may arise to be exercised.

1. In any of those situations, if the sentencing judge is of the view that given the nature of the Federal offence or offences for which the offender is being sentenced, or the circumstances in which that offence or offences were committed, or having regard to the offender's antecedents, it is not appropriate to impose a non-parole period or recognizance release order for the offence or offences for which the sentence is being imposed, the discretion is enlivened.

1. An obvious situation in which such a conclusion may be reached, is where, as in this case, the sentence for the Federal offence is to be made entirely concurrent with the sentence imposed for another offence. That was what was urged upon his Honour for the applicant. Another obvious situation where such a conclusion would be available, is where the sentence is to be made concurrent with a sentence for another offence, which the offender is already serving. In both of those situations, imposing a non-parole period or recognisance order would be an obvious futility, making its imposition inappropriate.

1. It follows that the construction for which the applicant contended, that the discretion given by s 19AB(3) is not a wide one and can only be exercised, having regard to the nature and circumstances of the particular Federal offence for which the offender is being sentenced, may not be accepted. That approach overlooks both the words of the section itself and the role it plays in the scheme of the Crimes Act (Cth). It fails to give proper effect to an important purpose of this part of the Act, namely to ensure that in sentencing an offender for a Federal offence to a term of imprisonment, the sentencing judge has regard to all relevant circumstances, including the nature and circumstances of the other offence or offences being dealt with, the offender's antecedents, including other sentences not already fully served and to ensure that there are no gaps resulting from the sentence imposed.

1. As was accepted for the applicant, it is also relevant to consider that s 19AH requires a Court which has failed fix to a non-parole period, or to make, or properly to make, a recognizance release order, to do so on application to that Court. In this case there has been no such application to the District Court. If it had been concluded that there was some error in his Honour's approach, it would have been appropriate to refuse leave to appeal, so that the applicant could approach the District Court to deal with the error. That is not necessary in this case, because his Honour was clearly not in error in exercising the discretion given by s 19AB(3) as he did.

The State offences

1. As to the State offences, it was submitted that his Honour erred in declining to fix non-parole periods for all offences. It was only in relation to offence number 10, the drug offence, that a non-parole period was fixed. The reasons given for declining to fix non-parole periods in respect of the other State offences were that the structure of the sentences made it inappropriate to do so.

1. The provisions of ss 44 and 45 of the Crimes (Sentencing Procedure) Act 1999 were relevant to this part of the sentencing exercise. They provide:

"44 Court to set non-parole period

(1) Unless imposing an aggregate sentence of imprisonment, when sentencing an offender to imprisonment for an offence, the court is first required to set a non-parole period for the sentence (that is, the minimum period for which the offender must be kept in detention in relation to the offence).

(2) The balance of the term of the sentence must not exceed one-third of the non-parole period for the sentence, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2A) Without affecting the requirement to set a non-parole period for a sentence, a court imposing an aggregate sentence of imprisonment in respect of 2 or more offences on an offender may set one non-parole period for all the offences to which the sentence relates after setting the term of the sentence.

(2B) The term of the sentence that will remain to be served after the non-parole period set for the aggregate sentence of imprisonment is served must not exceed one-third of the non-parole period, unless the court decides that there are special circumstances for it being more (in which case the court must make a record of its reasons for that decision).

(2C) The court need not indicate the non-parole period that would have been imposed for each offence had separate sentences been imposed instead of an aggregate sentence unless it is required to do so by section 54B (4A).

(3) The failure of a court to comply with subsection (2), (2B) or (2C) does not invalidate the sentence.

(4) Schedule 1 has effect in relation to existing life sentences referred to in that Schedule.

45 Court may decline to set non-parole period

(1) When sentencing an offender to imprisonment for an offence or, in the case of an aggregate sentence of imprisonment, for offences (other than an offence or offences set out in the Table to Division 1A of this Part), a court may decline to set a non-parole period for the offence or offences if it appears to the court that it is appropriate to do so:

(a) because of the nature of the offence to which the sentence, or of each of the offences to which an aggregate sentence relates, or the antecedent character of the offender, or

(b) because of any other penalty previously imposed on the offender, or

(c) for any other reason that the court considers sufficient.

(2) If a court declines to set a non-parole period for a sentence of imprisonment or an aggregate sentence of imprisonment, it must make a record of its reasons for doing so.

(3) Subsection (2) does not limit any other requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(4) The failure of a court to comply with the requirements of subsection (2) with respect to a sentence does not invalidate the sentence."

1. It follows that his Honour's approach in fixing a non-parole period only for the State drug offence, was also available as a matter of discretion. His Honour was sentencing the applicant for both State and Federal offences. No error has been shown in the decision to exercise the discretion granted by s 45(1) not to impose a non-parole period in relation to offences 1 to 7, particularly given his Honour's acceptance of the approach to the structure of the sentence urged upon him for the applicant.

1. Leave to appeal on this ground should be refused.

Ground 3 - the sentence was commenced at an excessively high level

Ground 6 - the sentencing judge erred in failing to take delay into account

Ground 7 - the sentencing judge erred in failing to observe the principle of totality

1. It was submitted for the applicant that his Honour must have commenced his sentencing exercise by fixing a notional total sentence in excess of 17 years, before he made allowance for the early plea and assistance, to result in a total overall sentence of 9 years, 7 months. An overall starting sentence of 17 years was submitted to be manifestly too high, in the circumstances of these offences.

1. It was also complained that in his remarks his Honour did not refer to the need for restraint or to the principle of totality, with the result that there was a concealed error in the sentence imposed for the drug offence. This was a severe sentence which should have been further reduced, to reflect totality, in order to avoid an unduly severe sentence. It was also complained that there was no identifiable reduction in the applicant's sentence, reflecting an allowance for delay.

1. It must firstly be noted that this submission reflected a mathematical calculation, taking the total sentence imposed as reflecting 60% of the starting sentence. It did not reflect anything which his Honour said in his sentencing remarks. Given the way in which his Honour structured the sentence, it is apparent that he did not approach the determination of the sentences he imposed in the way submitted for the applicant.

1. A total sentence of 9 years, 7 months is not mathematically 60% of a starting sentence of 17 years. Not only is that a figure of which his Honour made no mention, the submission proceeds on the basis of an assumption that his Honour commenced his sentencing exercise, by fixing a total sentence for all ten offences, which he then discounted by 40%. That would have involved an obvious departure from the approach to sentencing discussed in Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [45], which requires that the appropriate sentence for each offence be determined, before questions of accumulation, concurrence and totality are considered. There is nothing in his Honour's sentencing remarks which suggests that this was his Honour's approach. To the contrary, the structure of the sentences which he imposed, makes it apparent that he did not depart from the required approach.

1. The failure to state the starting point of the individual sentences imposed does not mean that those sentences were excessively high, as was submitted for the applicant. Light is obviously shed on the starting point of each sentence, by the sentence finally imposed by his Honour, having taken into account relevant mitigating and aggravating matters, by the 40% discount his Honour concluded the applicant should receive.

1. What his Honour did not do was to indicate what sentence he would have imposed, in the case of each offence, but for the 40% discount he determined that the applicant would receive. Identification of such a starting point is not only a useful approach for sentencing judges to adopt, because it provides obvious transparency in sentencing, but is one which is consistent with the approach required by both applicable State and Federal legislation.

1. In the case of the two Federal offences, his Honour was bound by s 21E of the Crimes Act (Cth). It relevantly provides:

"21EDirector of Public Prosecutions may appeal against reductions where promised co-operation with law enforcement agencies refused

(1) Where a federal sentence, or a federal non-parole period, is reduced by the court imposing the sentence or fixing the non-parole period because the offender has undertaken to co-operate with law enforcement agencies in proceedings, including confiscation proceedings, relating to any offence, the court must:

(a) if the sentence imposed is reduced-specify that the sentence is being reduced for that reason and state the sentence that would have been imposed but for that reduction; and

(b) if the non-parole period is reduced-specify that the non-parole period is being reduced for that reason and state what the period would have been but for that reduction.

(2) Where:

(a) a federal sentence is imposed or a federal non-parole period is fixed; and

(b) the sentence or non-parole period is reduced because the offender has undertaken to co-operate with law enforcement agencies as described in subsection (1); and

(c) after sentence, the offender, without reasonable excuse, does not co-operate in accordance with the undertaking;

the Director of Public Prosecutions may, at any time while the offender is under sentence, if the Director of Public Prosecutions is of the opinion that it is in the interests of the administration of justice to do so, appeal against the inadequacy of the sentence or of the non-parole period.

(3) ....

(4) ...."

1. In the case of the Federal offences, his Honour did not specify, as he was obliged by s 21E(1) to do, what the sentence would have been, but for the reduction. The failure to comply with s 21E, of itself, does not invalidate the sentence imposed (see R v TAE [2005] NSWCCA 29 at [20]).

1. In the case of the State offences, s 23 of the Crimes (Sentencing Procedure) Act, makes similar provision, providing:

"23 Power to reduce penalties for assistance provided to law enforcement authorities

(1) A court may impose a lesser penalty than it would otherwise impose on an offender, having regard to the degree to which the offender has assisted, or undertaken to assist, law enforcement authorities in the prevention, detection or investigation of, or in proceedings relating to, the offence concerned or any other offence.

(2) In deciding whether to impose a lesser penalty for an offence and the nature and extent of the penalty it imposes, the court must consider the following matters:

(3) A lesser penalty that is imposed under this section in relation to an offence must not be unreasonably disproportionate to the nature and circumstances of the offence.

(4) A court that imposes a lesser penalty under this section on an offender because the offender has assisted, or undertaken to assist, law enforcement authorities must:

(a) indicate to the offender, and make a record of the fact, that the lesser penalty is being imposed for either or both of those reasons, and

(b) state the penalty that it would otherwise have imposed, and

(c) where the lesser penalty is being imposed for both reasons-state the amount by which the penalty has been reduced for each reason.

(5) Subsection (4) does not limit any requirement that a court has, apart from that subsection, to record the reasons for its decisions.

(6) The failure of a court to comply with the requirements of subsection (4) with respect to any sentence does not invalidate the sentence "

1. Subsections 23(4) to (6) were inserted by the Crimes (Sentencing Procedure) Amendment Act 2010, which commenced operation on 14 March 2011. The amendments did not apply in this case, because while the applicant was sentenced in September 2011, he had entered his plea on 1 December 2010. By schedule 2 Part 21 of the Crimes (Sentencing Procedure) Act, the amendments did not apply to an offence where before 14 March 2011 a plea had been entered and was not withdrawn, or there had been a conviction.

1. Thus while a desirable approach to sentencing, his Honour was not obliged to state the penalty he would have imposed for the State offences, but for the discount for assistance. .

1. In the result there is, it must be accepted, some difficulty in understanding what sentence his Honour would have imposed in respect of the individual offences, but for the discount given. To take offence 1 as an example, if the sentence of 6 years and 8 months reflected a 40% discount, the starting figure would have been something in excess of 11 years, 1 month. That seems to have been an unlikely starting point.

1. The explanation for the final figure arrived at, may well lie in his Honour's acceptance that in fixing sentence, the delay in sentencing the applicant was a factor to be taken into account in his favour. His Honour indicated that he accepted that this was a factor he was obliged to take into account. He was not obliged to identify how that factor operated as a part of the instinctive synthesis involved in the sentencing exercise. The complaint on appeal that there was no identifiable reduction in the applicant's sentence, reflecting an allowance for delay has no foundation. His Honour would have erred, had he given such an identification.

1. In the result, given the sentences which his Honour imposed, both individually and overall, the submission that there must have been an excessively high starting point, is simply not born out. To the contrary, given the serious offences for which the applicant was being sentenced, it is apparent that his Honour adopted an approach which was urged upon him for the applicant, which in the end result, achieved a considerably lenient outcome.

1. This is revealed by how his Honour structured the sentences he imposed.

1. The sentences for the seven State offences and the two Federal offences concerned with the crime syndicate which the applicant headed, were all made concurrent with the sentence imposed for the first conspiracy offence. Four further Federal offences were taken into account. For all of those offences the applicant will serve a fixed term of 6 years and 8 months. This is the result of his Honour's application of the totality principle, which requires that where an offender is being sentenced for more than one offence, consideration be given to the question of whether it is just to sentence the offender consecutively for each offence. As discussed in Johnson v R [2004] HCA 15; (2004) 205 ALR 346 at [18], when sentencing an offender for multiple offences, as well as determining individual sentences, a sentencing court must look at the totality of the criminal behaviour for which the sentences are being imposed and ask itself what is the appropriate sentence for all of those offences.

1. In R v MAK; R v MSK (2006) [2006] NSWCCA 381; (2006)167 A Crim R 159 it was observed, however, at [18]:

"18 A sentencing court must, however, take care when applying the totality principle. Public confidence in the administration of justice requires the Court to avoid any suggestion that what is in effect being offered is some kind of a discount for multiple offending: R v Knight (2005) 155 A Crim R 252 at [112]. For similar reasons in a case such as the present where an offender who is already serving other sentences comes to be sentenced for additional offences, the impression must not be given that no, or little, penalty is imposed for the additional offences."

1. Also to be considered by a sentencing court is that just because the criminal conduct involved in different offences may be seen as part of one criminal course of conduct, fully concurrent sentences may not be appropriate. Concurrent sentences should not be imposed, if that fails to take account of relevant differences in conduct. In R v Welden [2002] NSWCCA 475; (2002) 136 A Crim R 55 it was observed at [48]:

"48 It is not infrequent that, where the offences arise out of one criminal enterprise, concurrent sentences will be imposed - but this is not an inflexible rule: Wilkins (1988) 38 A Crim R 445 (per Lee CJ at CL and Carruthers J, Allen J dissenting). The practice should not be followed where wholly concurrent sentences would fail to take account of differences in conduct, the subject of punishment on each count: Pearce v The Queen (1998) 194 CLR 610 at 624 (see also 621 to 622)."

1. The question to be asked by a sentencing court contemplating the imposition of concurrent sentences is, can the sentence imposed for one offence encompass the criminality of all the offences for which the offender is being sentenced?

1. In this case, his Honour took the view that the sentence of 6 years, 8 months imposed for the first conspiracy offence, encompassed the criminality of all of the other offences, apart from the drug offence. Those offences carried with them maximum penalties ranging from 5 to 20 years and for the drug offence, a maximum of 15 years. As his Honour found, the applicant's offences were serious. Even the sentence imposed for the drug offence was only partly accumulated, with the final result a total sentence of 9 years and 7 months. His Honour did not explain why the sentences he imposed for offences 1 to 9 were made wholly concurrent, although he did observe that he accepted the submission put for the applicant, that 'offences 1 to 5 should be concurrent sentences as the overt acts of the offender could have been the subject of one conspiracy count'.

1. The applicant was being sentenced as the mastermind of a significant crime syndicate, responsible for supervising the criminal conduct of the other offenders involved, from which he had derived considerable rewards. He was being sentenced for nine offences which related to different aspects of the conduct of this criminal enterprise, five of them being conspiracies involving other offenders. His Honour also had to take four further Federal offences into account in the sentencing exercise. In those circumstances, it is quite apparent that his Honour's approach to the structure of the sentences and the operation of the principle of totality, involved considerable leniency.

1. The sentence imposed for the first offence, of 6 years and 8 months was accepted as appropriately punishing the applicant for all of the other offences committed in the course of his management of this crime syndicate. That reflects a starting sentence, prior to discount of something over 11 years, 1 month, as I have explained. Given the evidence upon which his Honour was sentencing the applicant, it cannot be concluded that this was an excessively high starting point.

1. As for the drug offence, his Honour imposed a total sentence of 4 years, with a non-parole period of 1 year, 6 months commencing on 29 February 2015. It expires on 28 August 2016, the earliest day on which the applicant will be eligible for release, with the further term expiring on 28 February 2019. The result of that approach is that the applicant will be eligible for parole 6 months after the expiry of the fixed term imposed for the first offence, which expires on 29 February 2016. In the circumstances of the applicant's offending, this too was a considerably lenient outcome, which does not reflect the errors of which the applicant complained

1. In my view leave to appeal on these grounds must also be refused.

Ground 2 - the sentences imposed were unusually harsh and severe

Ground 5 - the sentencing judge erred in failing to maintain parity

1. The applicant's case was that the total sentence was unduly harsh and severe, as were the individual sentences imposed. It was also complained that the total head sentence imposed was far in excess of those imposed on co-offenders involved in the same criminal enterprise. The applicant's role in the hierarchy did not warrant his sentence, nor did the drug offence of which he was convicted.

1. In considering these grounds it must be born in mind that the applicant received a discount on sentence of 40% and the other offenders discounts of 25%. The fixed term which encompassed all of the applicant's crime syndicate offences was 6 years and 8 months. The total term for all offences is 9 years and 7 months. The applicant will become eligible for parole on 28 August 2016, six months after the expiration of the fixed term which expires on 29 February 2016. The sentence for the drug offence expires on 28 February 2019.

1. The sentences which need to be considered, so far as considerations of parity are concerned, are those variously imposed in respect of the offences concerned with the crime syndicate. The sentences imposed for the conspiracy offences were:

The applicant - the mastermind - total fixed term - 6 years and 8 months

Foong - second tier - 4 years and 3 months, with a non-parole period of 2 years and 6 months

Han - second tier - 3 years and 9 months, with a non-parole period of 2 years and 3 months

Yeoh, - third tier - 3 years with a non-parole period of 2 years and 3 months

Che - third tier - effective sentence of 2 years with a non-parole period of 1 year

Sock Meng Kee - third tier - 2 years and 6 months with a non-parole period of 1 year and 8 months

Yung Feng Yun - third tier - 2 years and 3 months with a non-parole period of 1 year and 3 months

1. The other offender Quoc Du Hua, who was in the third tier received for 6 related offences, one of knowingly participating in a criminal group and 5 of deal with the proceeds of crime, knowing that it was proceeds of crime and intending to conceal that it was proceeds of crime, a term 3 years, with a non-parole period of 2 years

1. The result, it was complained, was that the applicant's fixed term was more than double the non-parole periods imposed on the other offenders involved in the criminal enterprise. It was also submitted to be exceptional to impose a greater penalty on an offender than that imposed for a completed substantive offence. Reference was also made to statistics for the various substantive offences, which it was submitted showed that excessive individual sentences had been imposed on the applicant.

1. The disparity between the offenders, particularly those in the second tier, was submitted to be so great, as to have left the applicant with a legitimate sense of grievance. The difference in sentencing could also not be explained, it was submitted, by the sentence imposed for the drug offence, which was also submitted to be unusually severe.

1. In my view a basis for these grounds of appeal has not been made out. What has to be established is that on the facts, the sentence imposed is manifestly wrong, or plainly unjust, so as to allow this Court to conclude that there has been a failure to properly exercise the sentencing discretion (see Dinsdale v The Queen [2000] HCA 54; (2000) 202 CLR 321 at [22]).

1. The evidence established that the applicant was the head of a substantial criminal enterprise. That was his evidence. He was also being sentenced for an unconnected drug offence. There was no issue below that in the circumstances, the applicant could expect to receive a custodial sentence, absent reductions for pleas and assistance.

1. Unquestionably the overall sentence for his conspiracy offences, let alone the totality of the offences committed in connection with the operation of the crime syndicate, had to be considerably lengthier than those imposed on his co-offenders, given the respective circumstances of their offending. His Honour also had to sentence the applicant for the drug offence, which he properly found was a serious one, given the amount of the drugs involved. He also had to consider that some of the applicant's offences were committed while on conditional liberty. His criminal record also had to be taken into account, as did his subjective circumstances. They were different to that of the other offenders.

1. As the head of a substantial criminal enterprise, organised in three tiers, the applicant was convicted for his role in that operation, in which he not only conducted the syndicate for substantial reward, of over $100,000, but supervised those involved in the lower two tiers, in their separate roles. So far as the conspiracy charges were concerned, it was relevant that they were each involved only with him, not with each other.

1. The sentences imposed on the other offenders reflected their respective lesser roles in the applicant's substantial, sophisticated criminal enterprise. The sentence imposed on the applicant reflected his significantly greater involvement in planning, organising and co-ordinating the activities of the others, over a lengthy period of fraudulent conduct. He was also sentenced in respect of a serious drug offence which he also engaged in for considerable reward, unconnected with the syndicate. The other offenders were not involved in that offence, or the other offences in respect of which the applicant was being sentenced, or the four other offences which were being taken into account.

1. The respective sentences imposed on the co-offenders do not permit the conclusion urged for the applicant, that for his offending, he should only have received a sentence 'somewhat higher' than that of his co-offenders. His offending on the conspiracy offences alone, were of significantly greater criminality than that of the other offenders.

1. Given their respective roles in the criminal enterprise and their differing subjective and objective cases, the applicant's sentence is not unusually heavy. Also to be considered is the approach his Honour adopted to questions of accumulation and concurrence, which cannot be the subject of proper complaint, having advantaged the applicant as they unquestionably did.

1. The parity principle requires that where co-offenders involved in the same criminal enterprise are sentenced, the sentence imposed must have regard to the existence of their common purpose, but it must also have regard to their respective roles in the criminal enterprise, as well as the subjective facts of the individual offences and the offender's respective degree of culpability.

1. The applicant was the only one of those involved in the crime syndicate sentenced for a drug offence. Neither the sentence imposed, nor the approach adopted to the question of accumulation of that sentence, provide a basis for the complaints advanced; even when consideration is given to statistics relied on, which it was submitted showed that in 292 cases of the kind with which offence 10 was concerned, 50% received non-parole periods of 12 months or less. The limited utility of such bare statistics has been repeatedly discussed. In this case, even if their relevance were not to be questioned, they do not assist the applicant in establishing that the sentence imposed was excessively harsh.

1. In this case it has not been established that the sentences imposed on the applicant were harsh, or that those imposed on any of the applicant's co-offenders properly give rise to a justified sense of grievance on the applicant's part, nor to the appearance that justice has not been done. To the contrary, the applicant has had the benefit of considerable leniency, given his Honour's acceptance of the approach to sentencing urged upon him for the applicant below.

1. In my view given the sentences imposed, particularly when compared to those imposed on the co-offenders, these grounds, while arguable, do not have merit. In the result leave to appeal should be granted in respect of these grounds, but the appeal dismissed.

Ground 4 - there was insufficient allowance for assistance

1. The applicant received a combined deduction of 40% for assistance and plea, as was submitted on his behalf in the written submissions advanced below. His Honour identified 10% of that figure as representing future assistance. On appeal it was submitted for the applicant that this reflected that there had been a 'miniscule' allowance given for the considerable assistance which he had already provided.

1. It was also submitted that this Court's approach in R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151, was unnecessarily restrictive. There it was held that a combined discount should generally be between 20% - 50%, with 50% reflecting assistance of a very high order and that such a discount must not result in a sentence which is manifestly inadequate.

1. In this case, it was submitted that the Crown had not disputed that there should be a 25% discount for the plea. In the result there can only have been an allowance made of 5% for past assistance, in circumstances where it had been accepted that there had been significant assistance given by the applicant to police in the apprehension and conviction of others and a plea entered at the earliest opportunity. In the result the discount given was too low.

1. In the written submissions advanced below, the case put for the applicant was that there should be a combined discount of 40% for the applicant's early plea (which warranted a discount of 25%) and for assistance. In oral submissions it was put that a discount as high as 45% was warranted, but when his Honour indicated his reservations about that level of discount, 40% was pressed. No submissions were directed to the identification of future assistance, as opposed to past assistance.

1. The power to grant a discount was governed by s 23 of the Crimes (Sentencing Procedure) Act and by s 21E of the Crimes Act (Cth). In granting a discount, his Honour had to ensure that the sentence imposed after discount, was not 'unreasonably disproportionate to the nature and circumstances of the offence'. Given his Honour's approach to concurrence and accumulation, that was of particular significance in this case.

1. Here his Honour was dealing with both State and Federal offences. In assessing the discount his Honour thus had to consider various matters, including the strength of the Crown case, which was relevant to the plea entered to the Federal offences, where it was the applicant's willingness to facilitate the course of justice which arose to be considered. That was not relevant to the State offences, where the utilitarian value of the plea arose to be considered (see Danial v R [2008] NSWCCA 15 per James J at [27] - [28]).

1. The purpose of identifying a part of the discount given as referable to future assistance, is that in the event that the promised assistance is not forthcoming and the Crown brings an appeal under s5DA of the Criminal Appeal Act 1912, seeking to have the sentence varied, the relevant part of the discount may be identified.

1. While minds might differ as to the identification in this case of the amount of the discount referable to future assistance at 10%, given the assistance which the applicant had already given, the total discount of 40% and the resulting sentences imposed upon the applicant, do not reflect any error. It should not be overlooked that the applicant received not only the discount for which he pressed below, but also the benefit of the approach urged for him, as to the structuring of the sentences to be imposed.

1. The exercise of these discretions all impacted upon his Honour's obligation to ensure that the final sentences were not unreasonably disproportionate to the nature and circumstances of the offending which was being dealt with in the sentencing exercise. It seems to me that any greater discount than that given, would in this case have resulted in a sentence which was unreasonably disproportionate to the nature and circumstances of the applicant's offending, both in respect of the individual offences and having in mind the overall criminality which had arisen for consideration on sentencing.

1. In those circumstances, in my view leave to appeal on this ground must also be refused.

Ground 8 - the failure to find special circumstances in relation to the whole sentence

1. Special circumstances were found by his Honour in relation to offence 10, with the result that the statutory ratio provided in s 44 of the Crimes (Sentencing Procedure) Act , that 'the balance of the term of the sentence must not exceed one-third of the non-parole period' was departed from.

1. The applicant was sentenced to a total term of 4 years for that offence, with a non-parole period of 1 year and 6 months commencing on 29 February 2015 and expiring on 28 August 2016 and a further term of imprisonment of 2 years and 6 months expiring on 28 February 2019. Adherence to the statutory ratio would have resulted in a non-parole period of 3 years. Also to be considered is that because of the accumulation ordered, the applicant will be eligible for release on 28 August 2016, six months after the expiry of the fixed sentence imposed for offence 1.

1. A non-parole period is the minimum period for which the offender must be kept in detention in relation to that offence (see Power v The Queen [1974] HCA 26; 131 CLR 623 at 627-629.)

1. His Honour explained that he took this approach, 'for the reason that I have partially accumulated that sentence and that the offender has not previously served a full-time custodial sentence'. He then observed:

'Despite my findings of special circumstances in respect of offence number 10, the structure of the sentences did not permit me to reduce the overall sentence to be served beneath the statutory ration of seventy-five per cent.'

1. This reflected the requirements of s19AJ of the Crimes Act (Cth) and his Honour's approach to concurrence and accumulation, which resulted in the total sentence of 9 years, 7 months.

1. On appeal it was submitted, nevertheless, that another basis for a finding of special circumstances had been overlooked by his Honour, that is, accumulation or aggregation of the sentences themselves. It was submitted that his Honour should have found special circumstances in respect of the whole aggregate sentence. He should have imposed an aggregate sentence, together with a non-parole or minimum period, reflecting an adjustment to the normal ratio, reducing the entire minimum period accordingly.

1. These submissions may not be accepted. His Honour's approach involved considerable leniency, as I have explained. He accepted the case pressed for the applicant below, both as to the approach to be adopted to the sentencing of the crime syndicate offences, which were all made concurrent and the drug offence, which was only partially accumulated. He found special circumstances in respect of that offence, departing considerably from the statutory ratio. In the result, there will only be 6 months served in prison in respect of the drug offence, before the applicant is eligible for parole. It is apparent that in so exercising his discretion, his Honour did not overlook the impact of either concurrency or accumulation, in the sentences which he imposed. .

1. As discussed in R v Ma [2004] NSWCCA 92; (2004) 145 A Crim R 434, a non parole period must adequately reflect the objective seriousness of the offence and the necessary punitive considerations. Consideration must also be given to questions of deterrence. As recently discussed in Caristo v R [2011] NSWCCA 7:

"28A finding of special circumstances is a discretionary finding of fact in respect of which this Court will be slow to intervene: Jiang v R [2010] NSWCCA 277 at [83].

29'As a practical matter there are unlikely to be many cases in which this Court will interfere unless the non-parole period is found to be manifestly inadequate or manifestly excessive': R v Fidow [2004] NSWCCA 172 at [19]; R v Cramp at [36].

30Simply because there are circumstances which are capable of constituting special circumstances, the court is not required to make such a finding and reduce the non-parole period: R v Fidow, above, at [22].

31The degree or extent of any adjustment of the "statutory ratio" is a matter for the discretion of the sentencing judge: R v Cramp, above, at [31]; Trad v R [2009] NSWCCA 56 at [33]."

1. Here, the applicant will be eligible for release on parole on 28 August 2016, after having served a total sentence of some 7 years and 2 months, only 6 months of which is referrable to the drug offence alone. He will then be supervised on parole for a period of 2 years and 6 months. Given his Honour's conclusions as to the applicant's prospects for rehabilitation, it is difficult to see that this will not provide the applicant with an appropriate period of supervision.

1. The applicant will have served a term of imprisonment which has been the result of a considerably lenient approach to the assessment of the overall minimum period for which he must be kept in detention, in relation to all of the offences for which he was being sentenced. Any further reduction in the non-parole period would result in a term of imprisonment which does not properly reflect the objective seriousness of the drug offence for which the applicant was sentenced.

Order

1. I would order that leave to appeal be granted but the appeal dismissed.

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Decision last updated: 14 September 2012