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Humphreys v R

Humphreys v R

Case [2020] NSWCCA 144 1 July 2020

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Humphreys v R [2020] NSWCCA 144
Hearing dates: 28 February 2020
Date of orders: 1 July 2020
Decision date: 01 July 2020
Before: Simpson AJA at [1]
Johnson J at [2]
Hamill J at [158]
Decision:
1. Extend time for the Applicant to seek leave to appeal against sentence until 25 October 2019.
2. Grant leave to appeal against sentence.
3. Quash the aggregate sentence imposed at the Sydney District Court on 28 October 2016.
4. In its place, sentence the Applicant by way of an aggregate sentence to imprisonment for a period of seven years comprising a non-parole period of four years and three months commencing on 27 October 2016 and expiring on 26 January 2021, with a balance of term of two years and nine months commencing on 27 January 2021 and expiring on 26 October 2023.
5. The earliest date upon which the Applicant will be eligible for release on parole is 27 January 2021.

Catchwords:
CRIMINAL LAW - sentence - applicant convicted after trial of offences of recklessly dealing with proceeds of crime contrary to s.193B(3) Crimes Act 1900 (23 counts) and attempting to commit offences under s.193B(3) (five counts) - sophisticated scheme to defraud bank by means of fraudulent loan applications - applicant sentenced to aggregate sentence of imprisonment for nine years and two months with non-parole period of six years and three months - co-offender convicted at later separate trial of knowingly dealing with proceeds of crime contrary to s.193B(2) Crimes Act 1900 (23 counts) and attempting to commit s.193B(2) offences (five counts) - co-offender sentenced to aggregate sentence of imprisonment for six years with a non-parole period of four years - different maximum penalties for offences under s.193B(3) (10 years’ imprisonment) and s.193B(2) (15 years’ imprisonment) - applicant claims legitimate sense of grievance arising from lesser aggregate sentence imposed on co-offender - principles of parity, proportionality and relativity of sentences considered - relevance of co-offender receiving lesser aggregate sentence for offences carrying greater maximum penalties arising out of the same criminal enterprise - consideration of objective and subjective factors relating to the applicant and the co-offender - breach of proportionality principle established - appeal allowed - applicant resentenced taking into account proportionality principle - lesser aggregate sentence passed

Legislation Cited:
Crimes Act 1900
Criminal Appeal Act 1912

Cases Cited:
Atilgan v R [2018] NSWCCA 5
Dayment v R [2018] NSWCCA 132
Dunn v R [2018] NSWCCA 108
Dwayhi v R (2011) 205 A Crim R 274; [2011] NSWCCA 67
Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31
Gaggioli v R [2014] NSWCCA 246
Gilmour v R [2018] NSWCCA 295
Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49
Hanley v R [2018] NSWCCA 262
Ivory v R [2014] NSWCCA 181
Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60
Jones v The Queen (1993) 67 ALJR 376

Grounds of appeal

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

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

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

Consideration

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

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

Continue reading Humphreys v R

Details

AGLC: Humphreys v The Queen [2020] NSWCCA 144
Case: [2020] NSWCCA 144
Decision Date: 01 July 2020

CaseChat Overview and Summary

The applicant in this case was convicted of multiple counts of recklessly dealing with proceeds of crime and attempting to commit such offences, contrary to sections 193B(3) and 193B(3) of the Crimes Act 1900. The crimes were committed as part of a sophisticated scheme to defraud a bank through fraudulent loan applications. The applicant was sentenced to an aggregate sentence of imprisonment for nine years and two months, with a non-parole period of six years and three months. The co-offender, who was convicted of similar offences but under section 193B(2) of the Crimes Act 1900, received a lesser aggregate sentence of imprisonment for six years with a non-parole period of four years. The applicant appealed the sentence, arguing that it was unfair due to the disparity between their sentence and that of their co-offender, despite the latter's offences carrying a greater maximum penalty.

The central legal issues the court had to address were whether the sentencing principles of parity, proportionality, and relativity were appropriately applied, and if the applicant's sentence was proportionate to that of the co-offender. The court considered the different maximum penalties for the offences under sections 193B(3) and 193B(2) of the Crimes Act 1900, as well as the nature of the criminal enterprise and the roles played by the applicant and the co-offender. The court examined both objective and subjective factors to determine if there was a breach of the proportionality principle. After thorough deliberation, the court found that there was indeed a breach of the proportionality principle due to the significantly different sentences despite the similar nature of the crimes and the shared involvement in the same criminal enterprise.

The court concluded that the applicant's sentence was disproportionate to that of the co-offender, leading to the establishment of an unfair sense of grievance. The appeal was allowed, and the applicant was resentenced with due consideration given to the proportionality principle. The court ensured that the new sentence was commensurate with the gravity of the applicant's involvement in the criminal activities and the nature of the offences. The final orders involved the re-sentencing of the applicant, resulting in a lesser aggregate sentence that was deemed fair and proportionate under the circumstances.

Orders