Heng v The Queen

Case [2022] SASCA 24

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

HENG v THE QUEEN

[2022] SASCA 24

Judgment of the Court of Appeal  

(The Honourable President Livesey, the Honourable Justice Doyle and the Honourable Justice Bleby)

24 March 2022

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING ORDERS - NON-PAROLE PERIOD OR MINIMUM TERM - SOUTH AUSTRALIA - FEDERAL OFFENDERS

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - OTHER FRAUDS AND IMPOSITIONS - FRAUD - DEFRAUDING THE COMMONWEALTH - CONSPIRACY

Application for permission to appeal against sentence and appeal against sentence.

The applicant, together with two co-accused, was convicted by a jury of one count of conspiracy to defraud the Commonwealth, contrary to s 135.4(5) of the Criminal Code 1995 (Cth).

The circumstances of the offending were that, between February 2011 and February 2013, the applicant and co-accused defrauded the Commissioner of Taxation by registering six labour hire businesses which failed to pay GST collected from businesses to which labour had been supplied and PAYG tax withheld from workers’ salaries. In this way, the Commissioner of Taxation suffered losses in the order of $4.6 million, comprised of approximately $2.2 million in unremitted GST and $2.4 million in unpaid PAYG tax.

The applicant was sentenced on the basis that, inter alia, he was the architect and instigator of the scheme, had received the greatest benefit from it, and had shown no remorse or contrition. He received a sentence of eight years imprisonment with a non-parole period of six years. His co-accused received head sentences of four years imprisonment (reduced from five years by 20 per cent on account of his plea of guilty) and five years imprisonment, with non-parole periods of two and three years respectively.

The applicant seeks permission to appeal against his sentence on the singular ground of manifest excess. In doing so, the applicant emphasises that the head sentence was 80 per cent of the maximum penalty for the offence and that the non-parole period was fixed at 75 per cent of the head sentence. The applicant also contends that the sentencing Judge erred in apportioning greater culpability to the applicant over another of the co-accused.

Held, by the majority (Doyle and Bleby JJA), granting permission to appeal and allowing the appeal:

1.There was a clear basis for differentiating between the applicant and his co-accused.

2.The head sentence imposed, while heavy, was not manifestly excessive.

3.In circumstances where the sentencing Judge did not make any finding that would justify a heavy non-parole period, and the evidence did not otherwise reveal any basis for making such a finding, the non-parole period (being 75 per cent of the head sentence imposed) was manifestly excessive.

4.The sentence is set aside, and the applicant resentenced.

Held, by Livesey P (in dissent), granting permission to appeal but dismissing the appeal:

1.There was no issue of disparity in this case.

2.The head sentence and non-parole…

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Heng v The Queen [2022] SASCA 24
Case
[2022] SASCA 24
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CaseChat Overview and Summary

The applicant, Mr Heng, sought permission to appeal against the sentence imposed upon him for defrauding the Commonwealth, specifically for conspiracy. The appeal was heard by the Full Court of the Supreme Court of South Australia, comprising Livesey P, Doyle and Bleby JJ.

The primary legal issues before the Court were whether the head sentence and the non-parole period imposed on Mr Heng were manifestly excessive. A related contention was whether the sentencing judge erred in attributing greater culpability to Mr Heng compared to his co-accused, Mr Sarinn.

The majority of the Court, comprising Doyle and Bleby JJA, found that there was a clear basis for differentiating Mr Heng's culpability from that of his co-accused, noting Mr Heng's role as the architect and instigator of the sophisticated, two-year scheme involving significant sums of money. They acknowledged the seriousness of the offending and the appropriateness of a lengthy imprisonment term, particularly given Mr Heng's lack of explanation, restitution, or remorse, and the importance of general deterrence. While the head sentence was considered heavy but not manifestly excessive, the majority concluded that the non-parole period, set at 75 per cent of the head sentence, was manifestly excessive in the absence of any findings justifying such a lengthy period. Consequently, the appeal was allowed, the sentence set aside, and Mr Heng was to be resentenced. Livesey P, in dissent, would have dismissed the appeal, finding no issue of disparity and that both the head sentence and non-parole period were not manifestly excessive in the circumstances.

Orders

Orders of the court

Held, by the majority (Doyle and Bleby JJA), granting permission to appeal and allowing the appeal:

1. There was a clear basis for differentiating between the applicant and his co-accused.

2. The head sentence imposed, while heavy, was not manifestly excessive.

3. In circumstances where the sentencing Judge did not make any finding that would justify a heavy non-parole period, and the evidence did not otherwise reveal any basis for making such a finding, the non-parole period (being 75 per cent of the head sentence imposed) was manifestly excessive.

4. The sentence is set aside, and the applicant resentenced.

Held, by Livesey P (in dissent), granting permission to appeal but dismissing the appeal:

1. There was no issue of disparity in this case.

2. The head sentence and non-parole period were not, in the circumstances, manifestly excessive.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

There is no tension between these approaches to sentencing for State and federal offending. The fact that sentences, or for that matter non-parole periods, tend to fall within a recognisable range of outcomes provides some general guidance. It does not mean that a sentence or a non-parole period must invariably be set within that range or that the exercise of what is a broad judicial discretion is constrained by that range. When a sentence or a non-parole period is set outside the range that does not necessarily and of itself suggest that there has been any error in the exercise of the sentencing discretion. Usually, more is required to be shown before the appeal court can conclude that there is manifest inadequacy or manifest excess.The decisions of Bertilone and Hili In Bertilone v The Queen,[14] Buss JA (as he was) carefully reviewed the Australian authorities on the need for consistency in the imposition of sentences for federal offenders,[15] as well as in the setting of non-parole periods for federal offenders. His Honour explained:[16]Although reasonable consistency in the sentencing of Commonwealth offenders is important, this object must not fetter a sentencing judge's discretion. [14] Bertilone v The Queen (2009) 197 A Crim R 78 (Bertilone). [15] Citing, for example, R v Tran (2007) 172 A Crim R 436, [8] (Keane JA, with whom White J agreed).[16] Bertilone v The Queen (2009) 197 A Crim R 78, [38] (Buss JA, with whom McLure and Miller JJA agreed). Buss JA also examined the approach taken in other States to the setting of non-parole periods as “a ratio” of the head sentence for federal offences. For example, in New South Wales his Honour noted the following decisions, amongst others:[17][17] Bertilone v The Queen (2009) 197 A Crim R 78, [42]-[44] (Buss JA, with whom McLure and Miller JJA agreed).In R v Viana [2001] NSWCCA 171, the offender appealed against a head sentence of 14 years and a non-parole period of 10 years for, amongst other offences, conspiracy to import commercial quantities of cocaine. He contended, relevantly, that the non-parole period represented too high a proportion of the head sentence. The Court of Criminal Appeal of New South Wales dismissed his appeal. Meagher JA (Wood CJ at CL and Studdert J agreeing) held (at [3]): The principles of law applicable in this area have been laid down by this court in R v Bernier (1998) 102 A Crim R 44. There is in fact no statute which requires the non-parole period to bear any particular proportion in relation to the head sentence, nor is there any mandatory precedent in this Court which requires a fixed sentence. The most that can be said is that this Court has usually in cases of this sort, thought the proportion ought to be somewhere between 60 and 66 percent. That is not to say that higher percentages cannot stand. Indeed, if one looks at a survey of similar cases, there are many cases in which this court has approved of high percentages as high as 75 percent at least.Bick was a social security fraud case. The ratio of the non-parole period to the aggregate head sentence was about 78% (at [12]). Counsel for the offender submitted that “the norm” for non-parole periods was in the range of about 60% to 66% of the head sentence. Price J said (at [13]-[14]): The applicant referred to authorities which indicate that the norm for non-parole periods is in the range of about 60 to 66% of the head sentence: see, for example, R v Bernier (1998) 102 A Crim R 44 at 49 and R v Behar [1998] NSWSC 567. The determination of the appropriate non-parole period for offences in breach of the criminal law of the Commonwealth involves the exercise of judicial discretion. The Court of Criminal Appeal of New South Wales was not persuaded in Bick that, notwithstanding the high percentage, the offender’s non-parole period was such as ought to attract the intervention of the court (at [24]). See also the similar observations in Ly v The Queen [2007] NSWCCA 28 at [16]-[17], a tax fraud case.In James v The Queen [2009] NSWCCA 62, the Court of Criminal Appeal of New South Wales referred to a ratio between non-parole periods and head sentences of 60%-66% for Commonwealth sentences as “a general guide” (at [15]). Blanch J (Beazley JA and Howie J agreeing) said, in dealing with an appeal against sentence for offences relating to child pornography (at [14]-[15]): The contention is that the usual proportion between the head sentence and the non˗parole period is 60-66% in Commonwealth sentences. In this case the 18 month sentence is cumulative on 3 months of the State sentence, the effective total sentence is 21 months and the non-parole period is 15 months. On the other hand in this case the proportion of the sentence for the Commonwealth offence to be served was in fact 66%. Although that is disturbed by the 3 month accumulation, in my view the proportion of the sentences to be served in custody is not outside an acceptable range even if both the sentences were for Commonwealth offences. The ratio of 60 to 66% is a general guide and is not a statutory ratio.See also R v Riddell [2009] NSWCCA 96, where Beazley JA (Blanch and Howie JJ agreeing) noted, in the course of re-sentencing an offender for two offences involving attempted possession, and possession, of commercial quantities of cocaine, contrary to the Criminal Code (Cth), that (at [86]): in setting the non-parole period, I have applied the proportion usually set for Commonwealth offences: see, for example, James v The Queen [2009] NSWCCA 62 at [15].

Ratio Decidendi

Legal Principle Established

Her Honour also made the reparation order mentioned earlier in these reasons.Consideration The applicant seeks permission to appeal on the single ground that the sentence imposed upon him was manifestly excessive both as to the head sentence and the non-parole period. In particularising that ground, the applicant also contends that the sentencing Judge erred in apportioning greater culpability to the appellant over that of the co-accused, Mr Sarinn. In addressing the complaint of manifest excess, there is no dispute as to the relevant principles to be applied. They were recently set out by this Court in Ndreka v The Queen and need not be repeated.[30][30] Ndreka v The Queen [2021] SASCA 11 at [28] (Doyle JA, Kelly P and Bleby JA agreeing). There is no doubt that Mr Heng’s offending was a serious instance of the charged offending. As outlined above, it involved a relatively sophisticated scheme. It took place over a two year period, and involved a number of steps and activities. It involved very significant sums of money, both in terms of the loss inflicted upon the Commonwealth and the benefits received by the defendants, and in particular Mr Heng. Further, on the sentencing Judge’s findings, Mr Heng had a significant role in the conspiracy. He was the architect and instigator of the scheme, and persuaded Mr Sarinn and Mr Chy to assist him. Mr Sarinn and Mr Chy acted at the direction of Mr Heng. Mr Heng has not provided any explanation for his offending or what happened to the proceeds of the scheme. The sentencing Judge concluded that he was motivated by greed, and had not made any restitution. While Mr Heng had been previously been of good character, that was of little significance given the nature of his offending (involving sustained and systematic dishonesty). By reason of him continuing to deny his offending, Mr Heng had shown no sign of contrition or remorse. Given the importance of general deterrence in offending such as the present, and in line with the schedule of comparative sentences provided to the sentencing Judge (and to this Court),[31] a lengthy period of imprisonment was required and appropriate. [31] The use of which was endorsed in Hili v The Queen (2010) 242 CLR 520 at [54]. There was also a clear basis for differentiating between the conduct of Mr Heng, on the one hand, and Mr Chy and Mr Sarinn, on the other hand. There was a basis for doing so given the lead role taken by Mr Heng as the architect and instigator of the offending, as reflected in him receiving a larger proportion of the benefits. Also relevant in this context were the expressions of remorse and contrition on the part of Mr Chy and Mr Sarinn, including the latter’s plea of guilty. Mr Heng has not shown any sign of remorse or contrition. For this reason, we do not think that the comparison with the sentences of Mr Chy and Mr Sarinn provides any independent basis for this Court’s intervention. However, the issue remains whether the head sentence or non-parole period were manifestly excessive.