Hii v The Queen - [2011] WASCA 6

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT : THE COURT OF APPEAL (WA)

CITATION: HII -v- THE QUEEN [2011] WASCA 6

CORAM: McLURE P
MAZZA J

HEARD: 21 DECEMBER 2010

DELIVERED : 14 JANUARY 2011

FILE NO/S: CACR 144 of 2010

BETWEEN: SING KIET HII
Appellant
AND
THE QUEEN
Respondent

ON APPEAL FROM:
Jurisdiction              :  DISTRICT COURT OF WESTERN AUSTRALIA
Coram  :STONE DCJ
File No  :IND 837 of 2010

Catchwords:

Criminal law - Appeal against sentence - Parity principle - Turns on own facts

Legislation:

Criminal Code (Cth), s 131.1

Result:

Leave to appeal refused
Appeal dismissed

Category: B

Representation:

Counsel:

Appellant: Mr T F Percy QC & Ms J Cass
Respondent: No appearance

Solicitors:

Appellant: D G Price & Co
Respondent: Director of Public Prosecutions (Cth)

Case(s) referred to in judgment(s):

Lovelock v The Queen (1978) 33 FLR 132
Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606
Magdi v The State of Western Australia [2010] WASCA 234

McLURE P: The appellant seeks leave to appeal against sentence. He was convicted on his own plea of guilty of one count of dishonestly appropriating property belonging to the Australian Postal Corporation with the intention of permanently depriving the Corporation of that property contrary to s 131.1 of the Criminal Code (Cth).
Another accused, Mr Seng Choon P'ng, was also convicted on his plea of guilty of an offence in the same terms as that against the appellant. The facts in relation to the offences committed by the appellant and Mr P'ng overlap.
On 26 August 2010, the appellant and Mr P'ng were both sentenced by Stone DCJ to a term of imprisonment of 18 months with an order that they be released after serving 9 months and enter into a recognisance release order in the amount of $6,000 to be of good behaviour for a further 9 months.
The sole ground of appeal is that the sentence imposed on the appellant infringed the parity principle.
The sentencing judge adopted the facts as stated by the prosecutor. They were to the following effect. Mr P'ng was the licensee of the Bentley South Licensed Post Office (the Bentley Post Office) from September 2005. The charge of theft arose as a result of Mr P'ng making numerous false banking transactions between approximately 1 July 2008 and 15 November 2008.
All electronically enabled Australia Post retail outlets were equipped with a system called electronic point of sales (EPOS). The EPOS system is an electronic cash register that allows the operator to process all transactions accepted by Australia Post. Gyropost is an Australia Post product that allows customers of various banks and financial institutions to conduct personal banking services at Australia Post retail outlets that have the EPOS facility. These services include deposit and withdrawal facilities. To conduct a banking deposit, a customer swipes their bankcard at the EPOS terminal at the post office and enters the deposited amount which is then transferred electronically to the relevant financial institution and credited to the customer's account. The customer provides the cash amount to the post office employee and the cash is placed in the Australia Post safe. The money remains the property of Australia Post. When cash is deposited into the Australia Post safe, the staff are required to place the cash in an envelope and complete the details, stating the envelope number, the date of the deposit and the amount of cash being deposited.
On a fortnightly basis, the cash in the Australia Post safe was collected by Armaguard and reconciled by its processing staff. Once reconciled a report was produced and sent to the Australia Post outlet. Any discrepancies were listed on the report.
In the period 1 July 2008 to 15 November 2008 Mr P'ng made numerous electronic cash transfers into his personal account of funds belonging to Australia Post using the EPOS system located at either the Bentley Post Office or the Hilton Licensed Post Office (the Hilton Post Office). The appellant was the licensee of the Hilton Post Office. After making an electronic cash transfer, Mr P'ng would attend a bank branch and withdrew the amount of the deposit in cash. Mr P'ng transferred $74,694 in this way. From time to time, the appellant provided funds to Mr P'ng to ensure that when Armaguard collected the money from Mr P'ng's safe, there was no deficit.
Mr P'ng's offence was detected as a result of Australia Post governance staff conducting a number of audits in conjunction with Armaguard. An unannounced audit at the Bentley Post Office on 14 November 2008 discovered the cash deficiency. On that day, Mr P'ng admitted the offence. Mr P'ng repaid the full amount of the deficiency ($74,694) to Australia Post. The licence for the Bentley Post Office was transferred to Mr P'ng's parents following his offence.
The facts in relation to the appellant are as follows. He was the licensee of the Hilton Post Office from May 2006. The charge of theft arises as a result of the appellant making numerous false banking transactions between approximately 1 July 2008 and 26 November 2008. In particular, the appellant made numerous electronic cash transfers into his personal bank account using the EPOS terminal located either at the Hilton Post Office or the Bentley Post Office. The appellant then attended a bank branch and withdrew the amount of the deposit in cash. The appellant transferred in total the sum of $129,574. From time to time Mr P'ng provided funds to the appellant at the Hilton Post Office to ensure that when Armaguard collected the money from the appellant's safe, there was no deficit.
On 25 November 2008 an unannounced audit was conducted by Australia Post at the Hilton Post Office and the cash deficiency identified. On 17 December 2008 the appellant voluntarily participated in a record of interview and admitted the offence. According to the appellant, he kept approximately $20,000 to $22,000 for himself and lent the balance to Mr P'ng. Mr P'ng had showed the appellant how to carry out the offence.
On 29 December 2008 the appellant repaid the full amount of $129,574 to Australia Post. The funds were provided by his father (who was not informed of the appellant's offence).
The appellant was aged 31 at the time of sentencing, Mr P'ng was aged 36. Both were married with young children. Both migrated to Australia from Malaysia, the appellant when he was aged 17 and Mr P'ng when he was aged 15. Neither man had any relevant prior record. Both made fast‑track pleas of guilty, cooperated with investigating authorities and made full restitution. Both men were regarded as presenting a low risk of re‑offending.
Mr P'ng had a pathological gambling problem which he had taken steps to address. Further, he had voluntarily returned to Australia to face the charges.
In the course of his reasons, the trial judge expressly took into account the statement in the pre‑sentence report that the appellant 'appeared to be unaware of the seriousness of his offending behaviours'.
The principle of parity is explained by Gibbs CJ in Lowe v The Queen [1984] HCA 46; (1984) 154 CLR 606 as follows:
It is obviously desirable that persons who have been parties to the commission of the same offence should, if other things are equal, receive the same sentence, but other things are not always equal, and such matters as the age, background, previous criminal history and general character of the offender, and the part which he or she played in the commission of the offence, have to be taken into account (609).
That statement of general principle reflects the usual situation in which a question of parity arises namely where different sentences are imposed on co‑offenders (persons convicted of participating in the same offence). Ordinarily, the question is whether the disparity in sentence is capable of giving rise to a justifiable sense of grievance (Lowe (610)). We are here concerned with whether the parity principle has been infringed as a result of a lack of disparity between the sentences imposed upon the offenders: see Magdi v The State of Western Australia [2010] WASCA 234; Lovelock v The Queen (1978) 33 FLR 132, 136 ‑ 137. I will assume without deciding that the overlapping features of the offending justify the application of the parity principle even though the appellant and Mr P'ng are not co‑offenders. The relevant question in this case is whether differences in the relevant sentencing considerations

relating to each offender reasonably justified the appellant receiving a shorter term of imprisonment than Mr P'ng.

The differences relied on by the appellant include that his primary motivation was to assist Mr P'ng who had helped him in the past; Mr P'ng had advised the appellant how to carry out the offence; the majority of the money stolen by the appellant was lent to Mr P'ng; and the appellant (in fact his father) had suffered a greater financial loss than Mr P'ng. The appellant's motivation for acting dishonestly, the fact that Mr P'ng told him how to do it and his application of the stolen money do not materially reduce his relative culpability for the offence.
Moreover, there are differences which weigh in the balance against the appellant. He stole a significantly greater amount of money than Mr P'ng and unlike Mr P'ng, had no insight into the seriousness of his offending behaviour. Mr P'ng had also taken steps to address the cause of his offending (his pathological gambling problem) and had returned to Australia to face the charges.
Having regard to all relevant sentencing considerations, the appellant has no reasonable prospect of succeeding in his claim that his sentence infringes the parity principle.
I would refuse leave to appeal and dismiss the appeal.
MAZZA J: I agree with McLure P.