JOD v R - [2009] NSWCCA 205

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: JOD v REGINA [2009] NSWCCA 205

HEARING DATE(S): Wednesday 15 April 2009

JUDGMENT DATE:
25 August 2009

JUDGMENT OF: Giles JA at 1; Hall J at 2; RA Hulme J at 87

DECISION: Leave to appeal granted. The appeal is dismissed.

CATCHWORDS: CRIMINAL LAW – appeal against sentence – particular offences – applicant was involved in an organised crime syndicate which took over the identities of legitimate individuals and entities in order to defraud financial institutions – applicant attended financial institutions and presented false documents in order to open bank accounts in false names, to withdraw money from genuine bank accounts or to make fraudulent claims in relation to credit cards or loans - application of parity principles – offenders charged with different offences not strictly co-offenders having regard to the relevant factual and other differences in the respective offending – applicant’s objective criminality of a higher order than that of his “co-offender having regard to the applicant’s role in the syndicate and repeated offending over a lengthy period - no disproportion between the head sentences imposed upon the applicant and “co-offenders” – appeal dismissed

LEGISLATION CITED: Crimes Act 1900 (NSW)
Crimes Act 1914 (Cth)
Crimes (Sentencing Procedure) Act 1999
Criminal Code Act 1995
Financial Transaction Reports Act 1988 (Cth)

CASES CITED: Gao v Regina [2008] NSWCCA 234
Kardoulias v Regina [2005] 159 A Crim R 252
Lowe v The Queen (1987) 154 CLR 606
Mitchell v Regina [2008] NSWCCA 192
Pham v Regina [2009] NSWCCA 25
Postiglione v The Queen (1997) 189 CLR 295
Regina v Ellis (1993) 68 A Crim R 449
Regina v Formosa [2005] NSWCCA 363
Regina v Ilbay [2000] NSWCCA 251
Regina v Kerr [2003] NSWCCA 234
Spinks v Regina [2007] NSWCCA 52
Watson (NSWCCA, 25 February 1992, unreported)
Wurramarbra v Regina (1979) 28 ALR 176; Regina v
Yin v Regina [2007] NSWCCA 350

PARTIES: JOD v
REGINA

FILE NUMBER(S): CCA No 2007/16265

COUNSEL: C: N Adams
A: A Francis

SOLICITORS: C: Commonwealth Director of Public Prosecutions
A: Legal Aid Commission

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0316

LOWER COURT JUDICIAL OFFICER: Bennett DCJ

LOWER COURT DATE OF DECISION: 20 November 2008

No 2007/16265

GILES JA
HALL J
R A HULME J
TUESDAY 25 AUGUST 2009

JOD v REGINA

Judgment

1 GILES JA: I agree with Hall J

2 HALL J: The applicant seeks leave to appeal against sentences imposed upon him by the District Court of New South Wales on 27 July 2007 following his pleas of guilty to 73 fraud related offences.

3 The applicant was sentenced in respect of the following offences:-

• Fifteen offences contrary to s.145.1(5) of the Criminal Code Act 1995 (use forged Commonwealth document).

• Seven offences contrary to s.24(1) Financial Transaction Reports Act 1988 (Cth) (open account in false name).

• Two offences contrary to s.480.4 Criminal Code (dishonestly obtain or deal in personal financial information).

• Twenty-six offences contrary to s.178BA of the Crimes Act 1900 (NSW) (obtain money by deception).

• Twenty-two offences contrary to s.300(2) of the Crimes Act (use false instrument with intent).

Crimes Act

4 The maximum penalty for each offence against s.145.1(5) of the Criminal Code is imprisonment for 10 years.

5 The maximum penalty for each offence against s.24(1) Financial Transaction Reports Act is imprisonment for two years.

6 The maximum penalty for each offence against s.480.4 of the Criminal Code is imprisonment for five years.

7 The maximum penalty for each offence against s.178BA of the Crimes Act is imprisonment for five years.

8 The maximum penalty for each offence against s.300(2) of the Crimes Act is imprisonment for 10 years.

9 The maximum penalty for each offence against s.178BB of the Crimes Act is imprisonment for five years.

10 The applicant admitted to 46 other offences relating to the making and using of instruments on numerous dates (including, in particular, withdrawal and deposit slips, cheques, credit cards) and asked that these be taken into account by the sentencing judge in passing sentence pursuant to s.32 of the Crimes (Sentencing Procedure) Act 1999. The applicant requested pursuant to s.16BA of the Crimes Act 1914, that the sentencing judge take into account an additional 10 offences, namely using a false Commonwealth document with the intention of dishonestly obtaining a gain, opening an account with a cash dealer in a false name and dishonestly obtaining personal financial information belonging to another without consent.

11 The applicant was sentenced to an effective aggregate head sentence of six years to commence on 30 April 2006 and to expire on 29 April 2012 with a non-parole period of two years to commence on 30 April 2006, to expire on 29 April 2008.

12 The individual sentences imposed by the sentencing judge were as follows:-

Financial Transactions Reports Act

Crimes Act

Criminal Code

Financial Transactions Reports Act

Crimes Act

Financial Transactions Reports Act

Criminal Code

(5) In respect of the State offences committed during 2006:-

Crimes Act

13 In respect of all of the sentences for Commonwealth offences, there was specified a single non-parole period in accordance with s.19AB of the Crimes Act 1914 (Cth) of two years commencing 30 April 2006 and expiring on 29 April 2008.

14 The applicant relied upon two grounds of appeal in the following terms:-

“(1) The applicant submits that the effective sentence imposed on him, when compared with the sentences imposed on Darren Cranshaw, demonstrates a lack of parity in sentence that creates a ‘justifiable sense of grievance’.

Lowe v The Queen

(1984) 154 CLR 606.

(2) The sentence imposed upon the applicant when compared with that upon Jonathan Marven demonstrates a lack of parity in sentence that creates a justifiable sense of grievance.”

Factual matters

15 The offences were committed between 20 February 2004 and 20 April 2006, a period of two years and two months. At the beginning of that period, the applicant was 20 years of age.

16 The applicant was a member of an organised crime syndicate which used false identities in order to perpetrate fraud upon various financial institutions. The enterprise consisted of individual syndicates, each specialising in a particular type of identity fraud and directed by a member of the enterprise.

17 Each syndicate had what may be termed a “syndicate head”, a person in charge of organising the staff, counterfeit identities, drivers and offences, and a number of “runners”, persons who received a percentage of the funds they fraudulently obtained.

18 By way of telephone intercepts and physical surveillance, the applicant was detected in frequent conversations with Oliver Yu, the leader of one of the crime syndicates. The sentencing judge found that he worked “predominantly for Oliver Yu and occupied a position of trust within his organisation, running field operations on his behalf” (Remarks on Sentence, p. 39). Oliver Yu gave instructions to the applicant and provided the means by which to perpetrate the frauds.

19 The applicant’s offending involved him attending financial institutions on numerous occasions and presenting false documents in order to open bank accounts in false names, to withdraw money from existing genuine bank accounts or to make fraudulent claims in relation to credit cards or loans.

20 In addition to assuming the identities of natural persons, Oliver Yu and the applicant also assumed the identity of companies. One such company was Vicmar Pty Limited, which was used to purportedly make multiple applications to various financial institutions for credit facilities. In support of these credit applications made under false identities, counterfeit employment histories and payslips were produced.

21 The applicant gave evidence that he instructed other offenders. He agreed that he gave advice to Oliver Yu as to which financial institution’s branch was considered appropriate for the commission of the offences, the transactions, and whether the bank staff exhibited any apparent suspicion.

22 The applicant was also responsible for instructing Kulwinder Sharma, a runner in the syndicate, to attend banks and use false identification to obtain money from those banks. The applicant continued to instruct Sharma after police had detected him, and advised him how to conduct the frauds without detection.

23 The applicant received 10-25% of the money obtained. The percentage was assessed according to the degree of risk involved in the particular offences. In committing the present offences, the applicant obtained $86, 588 and attempted to obtain a further $121, 246.17.

24 His Honour, Bennett DCJ, made a number of findings as to the offending in the course of his remarks on sentence. In relation to the applicant’s position within the syndicate, his Honour observed (Remarks on Sentence, p. 84):-

Over an extended period of time, [JOD] engaged upon organised criminal activity at a level within the syndicate, of which he was a member,

near to that of its principal

, Oliver Yu … it is quite apparent that [JOD] played an

integral role

within the group

25 On 18 April 2006, the applicant was placed on a good behaviour bond pursuant to s.9 of the Crimes (Sentencing Procedure) Act for a period of 18 months. He had committed two offences of making a false instrument with intent. The sentencing judge took into account the fact that the applicant was on conditional liberty when he committed similar offences between 18 and 20 April 2006 (Remarks on Sentence, p.68).

26 The sentencing judge also took into account circumstances of aggravation, which included (Remarks on Sentence, p.85):-

That the offences involved a multiplicity of victims and criminal acts and was part of an extensive organised criminal enterprise as contemplated by s.21A(2)(m) and s.21A(2)(n) respectively of the Crimes (Sentencing Procedure) Act 1999.”

27 In respect of the subjective features pertaining to the applicant’s case, the sentencing judge accepted the applicant had a long history of drug abuse and of a gambling addiction. The drugs to which the applicant was addicted included heroin, ecstasy and crystal methamphetamine. The applicant gave evidence that he spent the money he obtained for committing the offences on drugs, gambling and general living expenses. The pre-sentence report expressed the view that the applicant spent between $6,000 and $7,000 each day on gambling.

28 The sentencing judge accepted that the applicant had good prospects for rehabilitation and had shown remorse. Reference was made to his personal circumstances with regard to certain childhood traumas, family relationships, drug use and gambling addiction. His Honour had regard to his participation in programmes whilst in custody to address his drug use and gambling, as well as the opinion expressed in the pre-sentence and psychologist’s reports that he still had unresolved substance abuse issues.

29 The applicant’s plea of guilty and his assistance given to law enforcement were also taken into account. The sentencing judge said the following at p.37 of the remarks on sentence:-

I propose to allow a discount of thirty-five per cent to reflect the utility of the pleas and his contrition demonstrated in his ready confession, and his pleas of guilty. His contrition is also demonstrated by the assistance that he provided to authorities, to which I will refer in due course confirming the intelligence already held by law enforcement and assessed overall as of medium value. [JOD] will be allowed a discount of fifteen percent for the assistance he provided to the authorities

30 A finding of special circumstances was made on the basis that the applicant required an extended period of supervision. The finding was based upon the fact that the time in custody for the offences in question was the first instance of incarceration for the applicant and was considered appropriate in order to facilitate his rehabilitation.

31 His Honour stated at p.102 of his remarks on sentence:-

It is also necessary to adjust the non-parole period so that ultimately you are not incarcerated beyond the ratio that is specified by the Crimes (Sentencing Procedure) Act, and also what is customarily applied to Commonwealth offences. For all those reasons I find special circumstances and so I may give you an extended period of parole and a reduced period in custody

Related offenders

32 Darren Cranshaw was sentenced in the District Court on 5 June 2008. Cranshaw was sentenced to an effective non-parole period of two years and 10 months with a balance of term of 12 months. Cranshaw’s total effective sentence was therefore three years and 10 months. He received a combined discount for an early plea of guilty and assistance of 45%.

33 Cranshaw’s application for leave to appeal against the severity of the sentences imposed on him has been heard. The Judgment of this Court in relation to it is to be delivered on the same date as judgment in the present matter.

34 Cranshaw committed the offences over a period of three months, and obtained $435,900 during that time. He was sentenced in respect of the following offences:-

• Ten offences contrary to s.178BA of the Crimes Act 1900 (obtain money by deception).

• Fourteen offences under s.344A and s.178BA of the Crimes Act (attempt to obtain money by deception).

• Thirty-seven offences under s.300(2) of the Crimes Act (use false instrument with intent).

Crimes Act

35 In relation to Cranshaw’s role in the syndicate, his Honour, Blackmore DCJ, recorded in his remarks on sentence (at pp.2-3) that Cranshaw acted as a “runner”, facilitating actual contact with the banks and adopting a false identity. Cranshaw’s involvement in the syndicate extended to recruiting Ms Mrillo as a runner.

36 In sentencing Cranshaw, his Honour regarded other syndicate members (particularly the applicant and Mrillo) as “co-offenders”. In relation to the relative criminality of Cranshaw and the applicant, his Honour observed in the course of his remarks on Cranshaw’s sentence at p.12:-

The man [JOD] was described as a

runner

and also a

trusted lieutenant

of the principal …

In my view,

the offender’s criminality cannot be placed much below that of [JOD]

. This offender obtained far more money than [JOD], and must bear responsibility for that level of defalcation…

37 Jonathan Marven was sentenced by his Honour, Blackmore DCJ, on 16 October 2008 to a non-parole period of four years and three months with a balance of term of one year and nine months. Marven received a combined discount for guilty pleas and assistance of 45%.

38 The offences committed by Marven involved the use of high quality counterfeit drivers’ licences and bank keycards. He was charged with the following offences:-

Crimes Act

• One offence contrary to s.193B(2) of the Crimes Act (knowingly deal with the proceeds of crime).

• Twenty-four offences contrary to s.300 of the Crimes Act (use false instrument).

• Two offences contrary to s.302 of the Crimes Act (possessing false instrument with intent to use).

Criminal Code

39 In the course of his remarks on sentence in relation to Marven, his Honour, Blackmore DCJ, observed in relation to the objective criminality of the offences that (at p.2):-

The offences the offender is responsible for are offences of a highly organised and complex nature. The offences involve corrupt bank officers, unlawful dealings in personal information, the assumption of identities of real people, and the use of machinery capable of producing high quality identity documents

40 The total exposure of all the offences committed by Marven to the financial institutions was $776, 385. Of this amount, $404,000 was not recovered.

41 In regard to Marven’s role in the syndicate, his Honour found that he was a “syndicate co-ordinator” (at p.4) and that his overall offending was of “a very high order” (at p.9). His Honour further observed at page 4 that:-

He organises the runners, provides them with fake cheques, counterfeit identity documents, and conveys them to financial institutions in New South Wales and Victoria to commit fraud offences

42 McKeown, Mrillo, Cranshaw and the applicant were classed by his Honour as “all simply runners who dealt with the syndicate coordinator, Jonathan Marven…” (at p.3). The syndicate had employed the runners on a commission basis. His Honour stated that essentially, a runner would enter a financial institution in possession of a false driver’s licence and, after confirming the account was unobstructed, withdraw cash from an account.

43 In relation to Marven’s role in the syndicate as it concerned related offenders, including the applicant, his Honour made the following finding (at p.9):-

In this case, I find that the offender’s role was more significant than that of Mr Cranshaw, whom I previously sentenced to three years and ten months imprisonment, after also applying a forty-five percent discount.

In my view, the offender’s role can be equated to that of the man [JOD]. He was also a trusted person, acting as a runner and an assistant to one of the identified principals in the syndicate. It must be said that their roles were not identical, but, in terms of importance to the syndicate, they would appear to be on a similar level

Submissions

44 Ms A Francis of counsel for the applicant contended that there was a lack of parity between the sentences imposed on her client and those imposed upon Darren Cranshaw and Jonathan Marven.

45 Ms Francis submitted that the head sentence imposed upon the applicant, which is two years and two months greater than that of the offender Cranshaw, gives rise to a justifiable sense of grievance. No complaint was made in relation to the non-parole period.

46 Ms Francis raised a number of factors concerning the relative criminality of the applicant and Cranshaw which it was contended necessitated a lesser differentiation in the head sentences imposed. These were said to include the following matters:-

(1) The fact that Cranshaw was sentenced for a greater number of offences (taking into account the Form 1 offences).

In comparison, the applicant obtained $86,588 and attempted to obtain $121,246.27.

47 Reliance was placed on the parity principle as stated in Lowe v The Queen (1987) 154 CLR 606 at 613 and Postiglione v The Queen (1997) 189 CLR 295 at 301.

48 A question arose at the hearing of this appeal as to whether parity arguments extend to offenders involved in a syndicate but who are not in fact co-offenders in the sense that they are not charged with involvement in the same incident or breaches of a criminal statute.

49 The applicant was not sentenced in relation to the same transactions as Cranshaw or Marven. Although the offenders Marven, Cranshaw and the applicant share a number of offences in common, such offences arose out of different factual circumstances. However, that said, the offences committed by the applicant and Cranshaw bear the greatest similarity, including offences contrary to s.178BA and s.300(2) of the Crimes Act.

50 Ms Francis relied upon the decision of this Court in Shane Bradley Mitchell v Regina [2008] NSWCCA 192 as support for the contention that the parity principle can apply to offenders notwithstanding that they are charged with different offences.

51 The Crown submitted that strict parity considerations as stated in Lowe (supra) do not apply to offenders who have committed similar offences but who are not participants in the same crime or crimes. Although the Crown accepted that there was some commonality in the offences for which the applicant, Cranshaw and Marven were sentenced, those offences did not arise from the same factual circumstances.

52 Reference was made to the decisions in Wurramarbra v Regina (1979) 28 ALR 176; Regina v Watson (NSWCCA, 25 February 1992, unreported); Regina v Formosa [2005] NSWCCA 363; Spinks v Regina [2007] NSWCCA 52; Yin v Regina [2007] NSWCCA 350; Pham v Regina [2009] NSWCCA 25; Kardoulias v Regina [2005] 159 A Crim R 252.

53 Ms Francis submitted that there were a number of similarities between the applicant’s case and Cranshaw’s case which attracted the application of parity principles. These were said to include:-

(2) the modus operandi;

(3) the interrelated nature of the offenders; and,

54 The finding of Blackmore DCJ in his remarks on sentence to the effect that Cranshaw’s criminality could not be “placed much below [JOD]” was also relied on as mandating a consideration as to whether there was appropriate proportionality between the sentences imposed on Cranshaw and the applicant. It was argued that if the finding of the sentencing judge as to their respective criminality was not respected, public confidence in the integrity of the administration of justice would be eroded.

55 In the Crown’s submission, a distinction must be made between the role of the respective offenders in the syndicate hierarchy on the one hand, and their objective criminality on the other.

56 The Crown submitted that the longer period of the head sentence imposed upon the applicant does not disclose disparity with Cranshaw but reflects significant differences in terms of:-

(2) the extent of their culpability;

(3) the respective periods over which the offending took place; and

57 The Crown contended that the sentencing judge sentenced the applicant on the basis of his seniority in the syndicate, the greater period of time over which he committed the offences and the trusted role that he occupied in the organisation. A further matter relied upon was the fact that the applicant was also on conditional liberty when certain of the offences were committed.

58 The Crown referred to the finding of special circumstances. In this respect, his Honour, Bennett DCJ, considered that the applicant required an extended period on parole for a number of reasons which he considered to be sufficient to establish the requirement of special circumstances. These included the fact that the applicant was in custody for the first time, his strong rehabilitation prospects and the need for an extended period on parole to facilitate his rehabilitation. The Crown submitted that Cranshaw had demonstrated a greater insight into his drug addiction and had taken more substantial steps than the applicant in terms of rehabilitation.

59 When considering the head sentence relative to the non-parole period imposed upon the applicant, the Crown submitted that the extended period of parole reflects considerable leniency having been extended to him.

The parity principle

60 The principle of parity requires that co-offenders receive the same sentence only if all other things are equal. Gibbs CJ in Lowe (supra) described the operation of the parity principle in the following terms at 609:-

“ 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 .” (emphasis added)

61 To similar effect were the observations of Dawson and Gaudron JJ in Postiglione (supra) at 301:-

“Discrepancy or disparity is not simply a question of the imposition of different sentences for the same offence. Rather, it is a question of due proportion between those sentences, that being a matter to be determined having regard to the different circumstances of the co-offenders in question and their different degrees of criminality

62 Accordingly, in general terms, the parity principle involves a question of due proportion between the sentences of co-offenders to be determined by considering the different degrees of criminality and the different circumstances of the co-offenders in question.

63 The parity principle is only engaged where the alleged disparity is such as to give rise to a justifiable sense of grievance. As Kirby J observed in Postiglione (supra) (at 337):-

“ So long as the sentencing Judge has taken into account the relevant considerations of law and fact, the appellate court will not ordinarily intervene merely because some arguable discrepancy appears between the sentencing of otherwise apparently connected or like offenders .”

64 The test for determining the existence of a sense of grievance is objective. The applicant must show that a reasonable person, looking at the circumstances of the case, would regard the offender’s grievance as justified: Regina v Ilbay [2000] NSWCCA 251 Grove J (at [6]).

65 Lowe (supra) involved co-offenders charged with the same offence, the crime of robbery while armed with an offensive weapon. Where offenders have been charged with different offences, this Court has been reluctant to apply strict principles of parity.

66 Counsel on behalf of the applicant pointed to the decision of this Court in Regina v Kerr [2003] NSWCCA 234, as suggesting that parity can apply notwithstanding that two offenders are charged with completely different offences. In that case, the applicant was sentenced for aggravated robbery and his co-offenders were charged with simple robbery and concealing a serious offence respectively.

67 Miles JA, with whom the other members of the Court concurred, stated:-

“19 … It is also recognised that the parity principle is of wide application and is not to be applied or withheld in a technical or pedantic way. It is indeed part of or a reflection of the wider principle that consistency in sentencing by the courts overall is to be aimed at as desirable in the public interest …

20

In other words when it is known that a person implicated in the offence for which an offender is being sentenced has already been convicted and sentenced, care needs to be taken to ensure that as far as possible the sentence about to be imposed is not so severe as to generate, not only a sense of grievance in the offender but also a sense of disquiet in the disinterested observer

68 In Pham (supra), Latham J summarised the way in which this Court has dealt with these comments made in Kerr (supra):-

33

This statement of principle was considered by this Court in

R v Formosa

[2005] NSWCCA 363. There the applicant was charged with malicious infliction of grievous bodily harm in company. The co-offender, Wood, was dealt with as an accessory after the fact to the applicant’s offence. In dismissing the appeal, Simpson J stated:-

‘40 The decision in

Kerr

is capable of being read as extending the principle so that it applies even where co-offenders are charged with different offences. I do not wish to be taken as entirely rejecting the proposition that the principle can be so applied, but here, with the extremely wide divergence between the nature of the crimes charged against the co-offender and against the applicant it is difficult, if not impossible, to see how that principle can be applied.

41 The effect of the submissions made on behalf of the applicant (and the decision in

Kerr

is at least capable of giving them some support) is that the principle of parity in sentencing is broad enough to extend to redressing disparities or discrepancies in the charging process as well as in the sentencing process.

42 In

Kerr

, there were marked parallels with the present case. The facts suggested that both the applicant and Oliver had been actively involved in the actual assault, and, so far as the facts are recited in the judgment, to a comparable degree. Yet Kerr was charged with a significantly more serious offence than was Oliver. Quite apart from any other differences, which were recognised in the passage quoted in

Postiglione

as justifying different sentences, that alone imposed demands upon each sentencing judge that were different.

43 In the present case the divergence was even greater. While Colin Wood does not appear actively to have participated in the assault, he was undoubtedly present for the purpose of supporting the applicant. That he was charged only with an accessorial offence is mysterious and unexplained.

44 I do not understand either

Lowe

or

Postiglione

to suggest that the parity principle extends to correcting any imbalance in the manner in which co-offenders are charged. I would be very cautious before proposing or adopting any such principle.’

The statement of caution made by Simpson J above was repeated in

Spinks v R

[2007] NSWCCA 52 where a complaint of disparity was rejected in circumstances where one offender had been charged with less offences than the co-offender. The statement was also endorsed in

Yin v R

[2007] NSWCCA 350 at [23]–[24], in

Kauwenberghs v R

[2008] NSWCCA 98 at [109] and referred to in

McGuiness v R

[2008] NSWCCA 80. In the latter case there was no disparity arising where one offender had been dealt with summarily and the other on indictment. In

Yin

, Barr J stated at [24]:-

‘24. … Although I express no opinion about the comparison of an appellant's sentence with that of an offender convicted of a more serious offence, it seems to me that comparison with that of an offender convicted of a less serious offence, as is done in this appeal, is attended with difficulty.’

In my opinion, if

has any applicability, it must be in a very limited class of case. This Court is not generally concerned with addressing the consequences of prosecutorial discretion as it impacts upon the sentences imposed upon offenders. As Miles AJ recognised, it could not be seriously argued that a person should receive a reduction in sentence because a co-offender is not charged or where, for some reason, the charge does not proceed. Why then should a sentence be reduced because another offender is charged with a less serious offence or a lesser number of offences? How does the court inform itself of the reasons why the prosecutor acted as he or she did? Does the court interfere even if the prosecutor’s actions were completely justified?

37 If the disinterested observer is to be consulted then that observer should understand the reasons why the prosecutorial discretion was exercised as it was. If this observer also understands that the courts do not generally supervise the legitimate exercise of prosecutorial discretion or seek to address the results of its exercise, then the observer would feel no disquiet about the different sentencing outcomes. But if such disquiet does arise, it is a result of the prosecutor’s actions and not the sentences imposed by the court.”

69 Ms Francis contended on behalf of the applicant that the criticisms of the decision in Kerr expressed by Latham J in Pham at [36] are confined to instances where parity considerations would impact upon the prosecutorial discretion. It was submitted that the comments of her Honour do not otherwise affect the correctness of the decision in Kerr.

70 The applicant also relied upon the decision in Mitchell (supra). There, the applicant and another related offender, Parker, purchased illegal drugs individually but with the purpose of attending the same party in Queensland to distribute the drugs. The two men were not co-offenders in the Lowe sense, however, Blanch J said at [10]:-

Although not a case of discrepancy in sentencing of co-offenders, this is a case of markedly different sentences imposed on two men who were living in the same house, who were each engaged in the same activity for the same purpose on the same day

71 Blanch J identified a number of measures directed toward achieving consistency in sentencing, including the use of sentencing statistics, guideline judgments and the practice of quoting like cases (at [12]). His Honour found that in order to ensure a sense of consistency in sentencing, the respective sentences ought to be examined. A comparison of the offences committed by each offender indicated to his Honour that there should be no significant difference in the sentence imposed.

72 Harrison J considered this issue in Gao v Regina [2008] NSWCCA 234, finding that strict parity principles do not apply in such cases. His Honour stated at [28]:-

It must be apparent, in comparing any two sentences imposed upon different offenders, that the facts and circumstances applicable to one could never be identical to the facts and circumstances applicable to the other. The degrees of similarity between or among any two or more offenders and the sentences imposed upon them will always be a matter of extent and degree. A series of matters favouring the imposition of one sentence in respect of a particular offender may favour the imposition of a completely different sentence in respect of another offender. The reasonable sense of grievance to which the authorities make reference is only triggered where the degrees of similarity between the particular factors being considered would appear to an objective bystander to be disproportionate to the sentences that respectively have been imposed. The very nature of this exercise will excite varying responses

Consideration

73 The sentencing judge made findings in relation to both the objective criminality of the offences committed by the applicant, and his role within the organised crime syndicate.

74 The objective seriousness of the applicant’s offending was demonstrated by the following matters:-

(1) The fact that his involvement in the organised criminal activity was at a level within the syndicate “ near to that of its principal ”, and the fact that he played an “ integral role ” within that syndicate.

(2) The fact that the offences involved a multiplicity of victims, it being noted that these were entirely corporate entities and financial institutions.

(4) The fact that the offending continued over a period of two years and two months.

(6) The fact that the amount of money involved in the fraud was $86,588, and that the applicant stood to gain a further $121, 246.17.

(7) The fact that the applicant committed 73 offences, which involved 38 separate incidents.

75 In evaluating the applicant’s level of criminality, there is to be taken into account the prescribed maximum penalties which reflect the serious nature of the offences. In particular, of the total offences charged, 22 offences were contrary to the provisions of s.300(2) of the Crimes Act and 15 offences were contrary to s.145.1(5) of the Criminal Code Act 1995 (for which a maximum penalty of 10 years imprisonment is prescribed for both types of offence).

76 In comparing the applicant with Cranshaw, the following matters are noted:-

(1) The offenders were all part of an organised criminal enterprise, though different syndicates.

(2) The modus operandi of the relevant syndicates was sufficiently similar to permit a comparative analysis.
(3) The nature of the offences charged and the relevant maximum penalties were substantially similar in both cases.

77 The matters in (1), (2) and (3), together with those referred to in paragraph [74], are to be taken into account in determining whether the disparity or disproportion contended for is evident.

78 The issue is whether the overall term of six years, which includes a parole period of four years, reflects a marked disproportion as has been claimed (there being no claimed disproportion in the respective non-parole periods imposed in each case). At the end of this judgment is a Schedule that compares the sentences imposed on the applicant with those imposed on Marven and Cranshaw.

79 It is necessary to take into account, on the one hand, the observation of Blackmore DCJ to the effect that Cranshaw’s criminality was not much below that of the applicant, and on the other hand, the factors that distinguish their respective criminality. In particular, the differences in the nature of their roles, the fact that the applicant committed his offences over a longer period namely over two years and two months compared to the three month period over which Cranshaw committed his offences, and the fact that in respect of some of the applicant’s offences, he was at the time of their commission, on conditional liberty.

80 On the parity issue, the Crown relied upon this Court’s observation in Regina v Ellis (1993) 68 A Crim R 449 to the effect that the parity principle in Lowe (supra) applies to sentences imposed on co-offenders but that it is not an appropriate principle to apply in relation to different offenders with similar characteristics who have committed similar crimes. The relevant factual and other differences concerning the offending by the applicant and Cranshaw (and the matters establishing a degree of commonality between them in that respect) have been identified above. It is clear that the central facts and matters that differentiate their respective offending mean that the parity principle has no strict application to the applicant’s case.

81 However, by reason of the way both the Crown and the legal representatives for the applicant approached the sentencing exercise in this case, I consider fairness requires that the sentences imposed are to be assessed with due regard being given to the sentences imposed on both Marven and Cranshaw. Indeed, in the hearing in this Court, the Crown submitted:-

“Because Cranshaw and

were members of the same syndicate and engaged in the commission of similar offences, the aggregate sentence imposed upon Cranshaw provides some useful basis for comparison. Technically, however, it does not give rise to the concept of parity as discussed in

Lowe v R

.”

82 On consideration of the matters that establish the nature, extent and the objective seriousness of the applicant’s offending and the other matters discussed above, I do not consider, as was contended for the applicant, that there exists such a disproportion between the head sentences imposed upon the applicant and Cranshaw as to warrant this Court’s intervention.

83 The applicant’s objective criminality was of a high order by reason of the matters referred to in paragraph [74]. In the context of the present case of the applicant’s repeated offending over a lengthy period, it is clear that that offending exhibits features that differ markedly from Cranshaw’s offending. In this regard, the objective criminality in the applicant’s case is such that it cannot, in my opinion, be said that there is any disproportion in the sentences in question.

84 In relation to the applicant’s role in the organised criminal activity, it is not to be overlooked that, on the sentencing judge’s findings, the applicant ran field operations on behalf of Yu, the leader of one of the crime syndicates, was involved in the use of assumed identities (of natural persons and of companies) and instructed other offenders. He, additionally, provided advice to Yu as to which branch of particular financial institutions were considered appropriate for the commission of offences. The sentencing judge’s finding that the applicant occupied a position of trust within the organisation is a significant finding as is the fact that his offending continued over a period of two years and two months.

85 Having regard to all these matters and the respective non-parole periods imposed in each case, I do not consider that there is disproportion creating a justifiable sense of grievance between the overall sentences or by reason of the parole period of one year in respect of the sentence imposed on Cranshaw and the parole period of four years in the appellant’s case.

86 Accordingly, the orders I propose are:-

(1) Leave to appeal granted.

87 R A HULME J: I agree with Hall J.

Schedule

Offender	Sentences	Period of offending	Discount	Losses	Features
Marven	Total = 6 years Non-parole period = 3 years, 4 months	45%	$776, 385 ($404, 100 not recovered)	Finding of special circumstances Role: syndicate co-ordinator Not on conditional liberty
Cranshaw	Total = 3 years, 10 months Non-parole period = 2 years, 10 months	3 months	45%	$1, 099, 200 ($435,900 not recovered)	Age: 40 Finding of special circumstances Role: runner Not on conditional liberty
JOD	Total = 6 years Non-parole period = 4 years	2 years 2 months	35%	Obtained $86, 588 (attempted to obtain $121, 246.17)	Age: 20 (at time of offences) Special circumstances found Role: integral, near to that of principal (Oliver Yu), occupied position of trust, but also runner On conditional liberty at time of offence

Citations

JOD v R [2009] NSWCCA 205

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CITATION:	JOD v REGINA [2009] NSWCCA 205
HEARING DATE(S):	Wednesday 15 April 2009
JUDGMENT DATE:	25 August 2009
JUDGMENT OF:	Giles JA at 1; Hall J at 2; RA Hulme J at 87
DECISION:	Leave to appeal granted. The appeal is dismissed.
CATCHWORDS:	CRIMINAL LAW – appeal against sentence – particular offences – applicant was involved in an organised crime syndicate which took over the identities of legitimate individuals and entities in order to defraud financial institutions – applicant attended financial institutions and presented false documents in order to open bank accounts in false names, to withdraw money from genuine bank accounts or to make fraudulent claims in relation to credit cards or loans - application of parity principles – offenders charged with different offences not strictly co-offenders having regard to the relevant factual and other differences in the respective offending – applicant’s objective criminality of a higher order than that of his “co-offender having regard to the applicant’s role in the syndicate and repeated offending over a lengthy period - no disproportion between the head sentences imposed upon the applicant and “co-offenders” – appeal dismissed
LEGISLATION CITED:	Crimes Act 1900 (NSW) Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Criminal Code Act 1995 Financial Transaction Reports Act 1988 (Cth)
CASES CITED:	Gao v Regina [2008] NSWCCA 234 Kardoulias v Regina [2005] 159 A Crim R 252 Lowe v The Queen (1987) 154 CLR 606 Mitchell v Regina [2008] NSWCCA 192 Pham v Regina [2009] NSWCCA 25 Postiglione v The Queen (1997) 189 CLR 295 Regina v Ellis (1993) 68 A Crim R 449 Regina v Formosa [2005] NSWCCA 363 Regina v Ilbay [2000] NSWCCA 251 Regina v Kerr [2003] NSWCCA 234 Spinks v Regina [2007] NSWCCA 52 Watson (NSWCCA, 25 February 1992, unreported) Wurramarbra v Regina (1979) 28 ALR 176; Regina v Yin v Regina [2007] NSWCCA 350
PARTIES:	JOD v REGINA
FILE NUMBER(S):	CCA No 2007/16265
COUNSEL:	C: N Adams A: A Francis
SOLICITORS:	C: Commonwealth Director of Public Prosecutions A: Legal Aid Commission
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	07/11/0316
LOWER COURT JUDICIAL OFFICER:	Bennett DCJ
LOWER COURT DATE OF DECISION:	20 November 2008