Kitson v R

Case •

[2022] NSWCCA 166

•

05 August 2022

No judgment structure available for this case.

Court of Criminal Appeal


Supreme Court


New South Wales

Medium Neutral Citation: Kitson v R [2022] NSWCCA 166
Hearing dates: 15 July 2022
Date of orders: 05 August 2022
Decision date: 05 August 2022
Before: Bell CJ at [1]; Gleeson JA at [66]; Yehia J at [67]
Decision:

1.       Leave to appeal is granted.

2.       The appeal is dismissed.

3. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), these reasons for judgment are not to be published (other than to the parties and their legal representatives) until the earlier of:

(a)      the conclusion of the trial of Lauren Anne Cranston (file number 2017/00148185); and Adam Michael Cranston (file number 2017/00148697); or

           (b)      further order of the Court.

4. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), after order (3) ceases to have effect, the parts of these reasons for judgment which are marked as redacted on the file copy of the judgment initialled by the Chief Justice are not to be published (other than to the parties and their legal representatives) until further order of the Court.

5.       Orders (3) and (4) are made on the ground specified in s 8(1)(a) of the Act, namely that it is necessary to prevent prejudice to the proper administration of justice.

6.       Pursuant to s 11(2) of the Act, orders (3) and (4) are to apply throughout the Commonwealth of Australia.

Catchwords:

SENTENCING ­– appeal against sentence – fresh or new evidence – impact of the COVID-19 pandemic on custodial conditions – where sentence was imposed prior to the outbreak of the pandemic ­– where the consequences of COVID-19 had resulted in the applicant suffering harsher punishment in custody than could have been anticipated by sentencing judge – where no error of principle could be demonstrated on the part of sentencing judge

SENTENCING – appeal against sentence – co-offenders – disparity between sentences – where co-offender was sentenced after applicant – operation of the parity principle where, at the time of sentencing the applicant, there was no other sentence which could be taken into account – whether operation of parity principle in such circumstances is consistent with statement in Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 that appellate intervention is dependent upon the demonstration of error – where applicant was sentenced before outbreak of the COVID-19 pandemic – where co-offender was sentenced during the pandemic, and the impact of COVID-19 on custodial conditions was taken into account by sentencing judge ­­– whether there was a disparity in sentences warranting appellate intervention

SENTENCING – relevant factors on sentence – co-offenders – parity – where co-offender was sentenced after applicant – operation of the parity principle where, at the time of sentencing the applicant, there was no other sentence which could be taken into account – whether operation of parity principle in such circumstances is consistent with statement in Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 that appellate intervention is dependent upon the demonstration of error – where applicant was sentenced before outbreak of the COVID-19 pandemic – where co-offender was sentenced during the pandemic, and the impact of COVID-19 on custodial conditions was taken into account by sentencing judge ­­– whether there was a disparity in sentences warranting appellate intervention

Legislation Cited:

Court Suppression and Non-publication Orders Act 2010 (NSW) s 7(b)

Crimes Act 1914 (Cth) s 16A(2)(c)

Criminal Appeal Act 1912 (NSW) ss 5(1)(c); 6(3)

Government Information (Public Access) Act 2009 (NSW)

Criminal Code (Cth) ss 135.4(3), 400.3(1)

Cases Cited:

Afu v R [2017] NSWCCA 246

Arenilla-Cepeda v The Queen [2012] NSWCCA 267

Borg v R; Gray v R [2020] NSWCCA 67

Cabezuela v R [2020] NSWCCA 107

Contos v R [2022] NSWCCA 92

Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 455

GAR v R [2021] NSWCCA 265

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49

Huckstadt v R [2016] NSWCCA 22

Humphreys v R [2020] NSWCCA 144

Jones v The Queen (1993) 67 ALJR 376

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37

Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118

Lloyd v R [2017] NSWCCA 303

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46

Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26

R v Anquetil [2020] NSWSC 995

R v Bellorini [2000] NSWCCA 50

R v Ferris [2020] NSWCCA 325

R v Fordham (1997) 98 A Crim R 359

R v Hawkins (1989) 45 A Crim R 430

R v Jones (Court of Criminal Appeal (NSW), 16 April 1992, unrep)

R v Many (1990) 51 A Crim R 54

R v Munday [1981] 2 NSWLR 177

R v Willard (2001) 120 A Crim R 450; [2001] NSWCCA 6

Saraya v R [2015] NSWCCA 63

Shannon v R [2022] NSWCCA 41

Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4

Toller v R [2021] NSWCCA 204

Tuivaga v R [2015] NSWCCA 145

Category:Principal judgment
Parties: Joshua Kitson (Applicant)
The Crown (Respondent)
Representation:

Counsel:

Applicant self-represented
G Wright SC with E Jones (Respondent)

Solicitors:

Office of the Commonwealth Director of Public Prosecutions (Respondent)
File Number(s): 2018/216222
Publication restriction: This judgment is subject to publication restrictions. See orders 3, 4, 5, and 6 above.
 Decision under appeal 
Court or tribunal:
Supreme Court of New South Wales
Jurisdiction:
Criminal
Citation:

[2019] NSWSC 1109

Date of Decision:
28 August 2019
Before:
Payne JA
File Number(s):
2018/216222

HEADNOTE

[This headnote is not to be read as part of the judgment]

Between March 2014 and May 2017, Joshua Kitson conspired with seven others (together, the conspirators) to defraud the Commonwealth. The offending involved the establishment and operation of a payroll services company named Plutus Payroll Australia Pty Ltd (Plutus), and a complex network of other related companies. The conspirators misappropriated funds which Plutus and the related companies were required to pay to the Australian Taxation Office, and thereby caused a loss of at least $105,625,304.36 to the Commonwealth.

Kitson pleaded guilty to one count of conspiring to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code (Cth). That offence carries a maximum penalty of 10 years’ imprisonment. On 28 August 2019, Kitson was sentenced by Payne JA to a term of imprisonment of four years and six months, with a non-parole period of three years.

One of the other conspirators was named Simon Anquetil. Anquetil’s degree of involvement in the conspiracy was slightly greater than Kitson’s. Anquetil was one of the architects of the criminal scheme, who had, together with several others, introduced Kitson to the conspiracy. Anquetil was at the top of the hierarchy of conspirators, whereas Kitson was near the top of the hierarchy. Anquetil obtained a financial benefit of approximately $12.2 million from the offending, whereas Kitson obtained a benefit of approximately $1.3 million.

Anquetil also pleaded guilty to a count of conspiring to dishonestly cause a loss to the Commonwealth (the common conspiracy offence), as well as a further count of dealing with the proceeds of crime in the sum of $1,000,000 or more. Approximately ten months after Kitson was sentenced, Anquetil was sentenced for these two offences, also by Payne JA. In sentencing Anquetil, his Honour took into account considerations of parity with the sentence imposed upon Kitson. Anquetil was ultimately sentenced to a total effective term of 7 years and 6 months of imprisonment, with a non-parole period of 5 years. Importantly, he received a sentence of 4 years and 8 months for the common conspiracy offence.

Kitson now seeks leave to appeal against his sentence on two grounds. The first ground concerns the hardship he has suffered in custody as a consequence of the COVID-19 pandemic, which began after the he was sentenced and therefore could not be taken into account by the sentencing judge. The second ground of appeal invokes the parity principle, by reference to the sentence subsequently imposed upon Anquetil. In essence, by this ground of appeal, it is contended that the moderate difference between the head sentences imposed upon Kitson and Anquetil for the common conspiracy offence was insufficient to reflect the disparities in the nature and gravity of their offending.

The Court held (Bell CJ, Gleeson JA and Yehia J agreeing), granting leave to appeal but dismissing the appeal:

As to the first ground of appeal

  1. Although it may readily be accepted that Kitson has suffered more onerous conditions of incarceration than could have been expected, evidence of unanticipated hardship in custody brought about by the COVID-19 pandemic is not demonstrative of any error on the part of the sentencing judge. The power of the Court of Criminal Appeal to interfere with a sentence is conditioned on the establishment of error, and, generally speaking, error cannot be established by facts or events which have arisen entirely after the primary sentencing exercise. The review of a sentence in light of subsequent events is the province of the executive branch and not of an appellate court: [32]–[35] (Bell CJ); [66] (Gleeson JA); [67] (Yehia J).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118; R v Munday [1981] 2 NSWLR 177; Toller v R [2021] NSWCCA 204; Douar v R (2005) 159 A Crim R 154; [2005] NSWCCA 445; R v Willard (2001) 120 A Crim R 450; [2001] NSWCCA 6; R v Fordham (1997) 98 A Crim R 359; R v Many (1990) 51 A Crim R 54; Cabezuela v R [2020] NSWCCA 107; Borg v R; Gray v R [2020] NSWCCA 67; GAR v R [2021] NSWCCA 265; Shannon v R [2022] NSWCCA 41, considered.

As to the second ground of appeal

  1. In an appeal against sentence, an applicant may advance a parity ground by reference to a sentence which was imposed upon a co-offender after the sentencing of the applicant. This is so notwithstanding the fact that no other sentence existed at the time that the applicant’s sentence was imposed, and notwithstanding that the applicant’s sentence may have been otherwise appropriate: [46] (Bell CJ); [66] (Gleeson JA); [67] (Yehia J).

Jones v The Queen (1993) 67 ALJR 376; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, applied.

R v Bellorini [2000] NSWCCA 50; Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4; Saraya v R [2015] NSWCCA 63; Humphreys v R [2020] NSWCCA 144; and R v Ferris [2020] NSWCCA 325, considered.

  1. There is some tension between, on the one hand, the proposition that an offender may advance a parity ground by reference to a sentence subsequently imposed upon a co-offender, and on the other hand, the proposition that an appellate court’s authority to intervene on a sentence appeal is “dependent upon the demonstration of error”: Kentwellv The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35]. Two alternative positions follow. Either the latter statement is overly broad or requires qualification, or, contrary to the general position that error cannot be established by facts which have arisen entirely after the primary sentencing exercise, the parity principle is of such importance that a sentence subsequently passed on a co-offender is an exception to this general position where a sentence is being challenged on parity grounds: [50] (Bell CJ); [66] (Gleeson JA); [67] (Yehia J).

Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37; R v Jones (1993) 67 ALJR 376; Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46; Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49; R v Bellorini [2000] NSWCCA 50; Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4; Saraya v R [2015] NSWCCA 63; Humphreys v R [2020] NSWCCA 144; R v Ferris [2020] NSWCCA 325; and R v Jones (Court of Criminal Appeal (NSW), 16 April 1992, unrep), considered.

  1. The sentences imposed by the sentencing judge adequately reflected the differences in the degree of criminality inherent in each offender’s conduct. Having regard to the differences in the offenders’ conduct, the discretionary nature of the sentencing process, the fact that parity was expressly taken into account in sentencing Anquetil, and the fact that the same judge sentenced both co-offenders, there was no relevant disparity warranting appellate intervention: [64] (Bell CJ); [66] (Gleeson JA); [67] (Yehia J).

Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; Afu v R [2017] NSWCCA 246; Tuivaga v R [2015] NSWCCA 145; Huckstadt v R [2016] NSWCCA 22; Contos v R [2022] NSWCCA 92, considered.

Judgment

  1. BELL CJ: On 27 November 2018, Joshua Kitson (the Applicant) pleaded guilty to one count of conspiring to dishonestly cause a loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code (Cth). That offence carries a maximum penalty of 10 years’ imprisonment and/or 600 penalty units. The count to which the Applicant pleaded guilty was particularised as follows:

"Between about 1 March 2014 and about 18 May 2017 at Sydney and elsewhere in the State of New South Wales, did conspire with others, namely Simon Paul Anquetil, Adam Michael Cranston, Lauren Anne Cranston, Devyn Michelle Hammond, Dev Menon, Jason Cornell Onley, Daniel Rostankovski, with the intention of dishonestly causing a loss to a third person, namely the Commonwealth."

  1. On 28 August 2019, the Applicant was sentenced by Payne JA in the New South Wales Supreme Court, on the basis of an agreed statement of facts. [1] The sentencing judge imposed a term of imprisonment of 4 years and 6 months, with a non-parole period of 3 years, commencing on 28 August 2019. [Redacted pursuant to order 4].

    1. R v Kitson [2019] NSWSC 1109 (ROS).

  2. By application filed 9 March 2022, the Applicant seeks leave to appeal against his sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW). The Applicant also seeks leave to file an application for leave to appeal out of time, pursuant to s 10(1)(b) of that Act. The application for an extension of time is not opposed by the Crown, and should be granted. The Applicant’s non-parole period is due to expire on 28 August 2022, which is just under six weeks from the hearing of his application.

  3. The Applicant is unrepresented on appeal, and appears to have prepared his grounds of appeal and written submissions himself. He acquitted himself admirably in the course of presenting his arguments. In support of his application, he relies upon two grounds of appeal. The first ground, supported by evidence, concerns the hardship suffered by the Applicant in custody as a consequence of the COVID-19 pandemic. The pandemic began after the Applicant was sentenced and, therefore, was not and could not have been taken into account by the sentencing judge in the exercise of his sentencing discretion. The second ground of appeal invokes the parity principle, by reference to the sentence subsequently imposed upon one of the Applicant’s co-offenders, Simon Anquetil (Anquetil).

Factual background

  1. The facts of the offending were agreed, and were summarised by the sentencing judge at [4]-[20] of the remarks on sentence. For present purposes, only a brief summary is necessary.

  2. Between about 1 March 2014 and 18 May 2017, the Applicant participated in a conspiracy with seven others (together, the conspirators) to defraud the Commonwealth. The conspiracy involved the establishment and operation of a payroll services company named Plutus Payroll Australia Pty Ltd (Plutus), and a number of other related companies. The object of the conspiracy was to deprive the Australian Taxation Office (ATO) of “Pay As You Go Withholding” (PAYGW) and “Goods and Services Tax” (GST) payments which Plutus collected from its clients, and which were payable to the ATO. [2]

    2. ROS at [5].

  3. Plutus provided payroll services to legitimate corporate and government clients. An incident of these services was that Plutus was responsible for collecting PAYGW amounts and remitting them to the ATO. The payroll services provided by Plutus also attracted GST, which Plutus was similarly responsible for collecting and remitting to the ATO. Over the period of the offending, the conspirators appropriated at least $105,625,304.36 of the funds that Plutus was legally required to remit to the ATO, amounting to 74.7% of all PAYGW and GST amounts that the company collected from its clients.

  4. The genesis and progression of the conspiracy, and the Applicant’s involvement in it, can be summarised as follows:

  1. In early 2014, Messrs Onley, Anquetil, Cranston and Larcombe met with the Applicant and introduced him to the conspiracy. It was agreed that Anquetil would set up the payroll services company, and the Applicant would help manage and conduct the company. Mr Kitson understood he was responsible for building up the apparently legitimate front office business of Plutus.

  2. Plutus was incorporated in April 2014, with Mr Anquetil as the sole director. The Applicant initially acted as a consultant for Plutus, recruiting a large number of legitimate clients. He was employed on a full-time basis as the General Manger of Plutus from December 2014.

  3. The conspiracy involved the use of separate corporate entities, referred to as ‘bottom companies’ or ‘bots’, which were clandestinely controlled by the conspirators. The ‘bots’ were subcontracted by Plutus to provide payroll and labour hire services, which involved Plutus transferring the payroll amounts collected from clients, and associated tax liabilities, to the ‘bots’. The ‘bots’, in turn, failed to remit PAYGW and GST monies to the ATO as required.

  4. The conspirators appointed financially unsophisticated people to be directors of the ‘bots’, in order to conceal their involvement in those companies. The directors were selected on the basis that they were unlikely to ensure compliance with corporate responsibilities and taxation requirements. They were paid to sign documents as and when required. However, it was the conspirators who maintained effective control over the ‘bots’.

  5. The intended consequence of the conspiracy was that the ‘bots’ would accrue substantial debts to the ATO, and would then be liquidated, leaving the debts unpaid. In the event of any investigation or audit, it would be the directors of the ‘bots’ who would be responsible for any outstanding tax debt.

  1. In 2016 and 2017, covert video and audio footage was recorded of the conspirators in which they variously posed as directors of the ‘bots’, arranged the misappropriation of the PAYGW and GST payments due to the ATO and discussed at length how best to avoid the attention of the ATO.

  2. In February 2017, one of the conspirators made demands for a combined amount of $25 million from the other conspirators, threatening media exposure of the conspiracy and violence. The Applicant attended a series of meetings with the other conspirators to discuss the demands, and the drafting of a deed to conceal the conspiracy. In response to the demands, the Applicant personally authorised the payment of a total of $24.4 million, which was drawn from money owed to the ATO.

  3. On 17 May 2017, the Australian Federal Police executed search warrants on the Plutus office in Sydney, and on the residential premises of the Applicant. The Applicant was arrested shortly thereafter.

  4. In total, the Applicant received an illegitimate financial gain of over $1.3 million as a result of the conspiracy. During the final stages of the conspiracy, he told the other conspirators that he would take an additional bonus of $500,000. Only a portion of this amount had been paid to the Applicant when the AFP raided Plutus.

The sentencing judge’s findings

  1. With respect to the objective seriousness of the Applicant’s offending, the sentencing judge said the following:[3]

“The objective seriousness of the offending is towards the top of the range of objective seriousness for offences of this kind. l accept the Crown's submission that Mr Kitson's conduct extended over a three year period and involved a significant level of premeditation, planning and deception:

(1)   The conspiracy involved the conspirators setting up a large number of corporate entities via which it could be implemented and layers could be put in place to conceal their involvement.

(2)   The conspiracy's success depended upon the appearance of Plutus as a legitimate company so that it could attract a large number of legitimate clients.

(3)   The conspiracy involved creating a ‘paper trail’ giving the appearance of legitimacy.

(4)   The conspiracy deliberately took advantage of what the conspirators knew about delays in tax administration to misappropriate funds required to be remitted to the ATO.”

3. ROS at [45].

  1. The sentencing judge considered the amount of money involved and the length of time over which the offending occurred to be significant considerations in assessing the objective seriousness of the offending, citing R v Hawkins. [4] In this context, his Honour considered it important that the conspiracy continued for a “significant period” of approximately three years, and caused a “significant loss to the Commonwealth”, being $105,625,304.36.

    4. (1989) 45 A Crim R 430.

  2. In an important passage of his remarks on sentence, the sentencing judge described the Applicant’s degree of involvement in the conspiracy in the following terms: [5]

“Mr Kitson played a significant and integral role in the implementation of the conspiracy:

(1)   Mr Kitson was a co-conspirator from the genesis of the conspiracy in March 2014.

(2)   Mr Kitson was also responsible for marketing Plutus to contractors and recruitment agencies. From December 2014, he was employed fulltime as the General Manager of Plutus and was responsible for managing Plutus' general operations and staff. Mr Kitson was instrumental in concealing the true nature of the conspiracy from Plutus staff. Mr Kitson was the conduit between Plutus and the other conspirators.

(3)   In addition to his involvement in the planning and implementation phase of the conspiracy, Mr Kitson was also critical to the action taken by the conspirators in an attempt to avoid detection by the authorities. Mr Kitson devised the idea of how best to ‘pull Plutus out of the market’ without what he described as a ‘media circus’. Mr Kitson performed relevant banking transactions from Plutus' account on instruction from the co-conspirators and discussed steps to destroy evidence in an attempt to avoid detection. He participated in a deception upon his fellow Plutus employees by preparing a script for his co-conspirator to deliver to the staff as to why they would be made redundant.

(4)   Between February and May 2017, Mr Kitson took numerous steps to prevent Plutus' data from being seized by law enforcement agencies or regulators. The offender engaged in this conduct when it was clear that the ATO and the OSR were conducting an investigation of the companies.

I find that Mr Kitson's position in the hierarchy was slightly below the principal architects and beneficiaries of the conspiracy. His role may be best described as an essential facilitator of the conspiracy. I accept Mr Kitson's submission that he was not the ‘originator’ or ‘brains trust’ of the scheme. Mr Kitson's role, however, should be characterised as both significant and essential to the success of the scheme.” (emphasis added)

5. ROS at [46]–[47].

  1. The sentencing judge also made the following relevant findings:

  1. that, although the Applicant was not aware of the precise amount of the loss to the Commonwealth caused by the conspiracy, he was aware that approximately $80 million had been misappropriated; [6]

    6. ROS at [49].

  2. that the Applicant was aware of large illegitimate payments being made to his fellow conspirators, and in one case authorised the payment of $24.4 million to Lands Legal in response to the demand outlined above; [7]

  3. that the Applicant was motivated by personal financial gain, and received over $1.3 million from his participation in the conspiracy; [8]

  4. that the Applicant’s conduct represented a persistent course of criminal conduct for the purposes of s 16A(2)(c) of the Crimes Act 1914 (Cth); [9]

  5. [redacted pursuant to order 4]; [10] and

  6. that the Applicant had good prospects of rehabilitation. [11]

    7. ROS at [50].

    8. ROS at [52].

    9. ROS at [54].

    10. [Redacted pursuant to order 4].

    11. ROS at [69].

  1. The sentencing judge allowed the Applicant a sentencing discount of 25% by reason of his guilty plea, which was entered at the earliest opportunity. In doing so, his Honour noted that at that stage the Applicant was the only one of the conspirators to enter a guilty plea, and that the Applicant’s guilty plea had spared the Crown considerable time and expense.

  2. [Redacted pursuant to order 4]

  3. Importantly for the purposes of the issues raised on this application for leave to appeal, and as noted above, the Applicant was sentenced prior to the outbreak of the COVID-19 pandemic.

  4. Before turning to the two grounds of appeal, it is necessary to supply relevant detail in relation to the sentencing Applicant’s co-offender, Anquetil.

The sentence imposed on Anquetil

  1. The Applicant’s co-offender, Anquetil, was sentenced in the New South Wales Supreme Court on 31 July 2020, also by Payne JA. [12] He stood to be sentenced for two offences, being one count of conspiring with others with the intention of dishonestly causing loss to the Commonwealth, contrary to s 135.4(3) of the Criminal Code (the common conspiracy offence), and one count of dealing with the proceeds of crime in the sum of $1,000,000 or more, contrary to s 400.3(1) of the Criminal Code. Count 1 was in substantially the same terms as the offence for which the Applicant was sentenced.

    12. R v Anquetil [2020] NSWSC 995.

  2. [Redacted pursuant to order 4]. He was sentenced to a term of imprisonment of 4 years and 8 months in respect of count 1, and a term of 6 years in respect of Count 2. The total effective term of imprisonment was 7 years and 6 months taking into account accumulation, with a single non-parole period of 5 years.

  3. [Redacted pursuant to order 4].

  4. In his sentencing remarks, the sentencing judge made the following findings concerning Anquetil’s offending which are relevant for present purposes:

  1. that the conspiracy to which Count 1 related was “objectively one of the most serious offences of its kind to come before a court in this country”; [13]

  2. that Anquetil was “a principal of the conspiracy” and “one of [its] key architects”, who “operated at the apex of the hierarchy of offenders involved in the scheme”; [14]

  3. that Anquetil was the beneficiary of not less than $12,218,148.55 as a consequence of the two offences; [15]

  4. that Anquetil’s offending was committed out of greed, and his motivation was at all times financial reward; [16] and

  5. that Anquetil had good prospects of rehabilitation. [17]

    13. R v Anquetil [2020] NSWSC 995 at [90].

    14. Ibid at [91].

    15. Ibid at [97].

    16. Ibid.

    17. Ibid at [138].

  1. In sentencing Anquetil, the sentencing judge had express regard to considerations of parity with the sentence imposed on the Applicant, particularly in the following passage:[18]

“The principal case referred to by both parties as providing guidance for the conspiracy to defraud count was R v Kitson [2019] NSWSC 1109. In that case the offender was a principal in the tax fraud conspiracy here engaged who pleaded guilty to one contravention of s 135.4(3) of the Criminal Code. The loss to the Commonwealth was at least $105,625,304.36. Mr Kitson's personal gain was approximately $1.3 million. [Redacted pursuant to order 4]. Like Mr Anquetil, Mr Kitson had a strong subjective case.

Mr Kitson was sentenced to imprisonment for a period of 4 years and 6 months and a non-parole period of 3 years. Mr Kitson was near the top of the hierarchy in the tax fraud conspiracy. [Redacted pursuant to order 4]. I have decided that taking everything I have already said properly into account, the starting point for Mr Anquetil should be slightly higher than for Mr Kitson to reflect his role at the very top of the hierarchy. The offender came to the conspiracy at the beginning and was instrumental in its front office operations. Prior to affording any discount to Mr Anquetil's sentence, I would apply a slightly higher starting point [redacted pursuant to order 4].”

18. Ibid at [145]–[146].

  1. [Redacted pursuant to order 4]. [19] His Honour also rejected a submission that Anquetil’s good character was relevantly distinguishable from “Mr Kitson's equally impressive case of positive good character”. [20]

    19. [Redacted pursuant to order 4].

    20. R v Anquetil [2020] NSWSC 995 at [128].

The first ground of appeal

  1. The Applicant’s first ground of appeal is expressed as follows: “[n]ew information that was not available to the sentencing Judge at time of sentencing”. As developed orally, the gravamen of this ground of appeal was that the Applicant had been impacted in prison in very adverse ways that could not have been contemplated by the sentencing judge when imposing his sentence. No error was pointed to as justifying this Court’s intervention.

  2. In support of this ground of appeal, the Applicant relies upon evidence of impact of the COVID-19 pandemic on the custodial conditions he has experienced while serving his sentence. This evidence included:

  1. material obtained pursuant to the Government Information (Public Access) Act 2009 (NSW), which indicates that contact visits and various correctional programs were suspended or reduced for protracted periods of time at the correctional centre where the Applicant is detained; and

  2. affidavits affirmed by the Applicant on 7 March 2022 and 6 May 2022, which concern the onerous impact of COVID-19 and related social distancing requirements on custodial conditions.

  1. In oral argument, the Applicant also relied upon an asserted failure by Correctional Services to protect him from actual and threatened violence from other detainees [redacted pursuant to order 4]. This submission was supported by an affidavit affirmed by the Applicant during the hearing on 15 July 2022. That affidavit detailed [redacted pursuant to order 4] threats of violence and one violent assault suffered by the Applicant at the hands of three other detainees.

  2. It may readily be accepted that the Applicant has suffered more onerous conditions of incarceration than could have been expected at the time of his sentencing by reason of the impacts of the COVID-19 pandemic. The evidence establishes that his experience in custody has been marked by a lack of visitations, repeated cell lock-ins, an inability to participate in work release programs, and an inability to take day and weekend leave.

  3. It may also be accepted, for the purposes of considering his argument, that the Applicant has experienced fear and, on at least one occasion, violence at the hands of other detainees [redacted pursuant to order 4] (although this has not been corroborated and the Applicant indicated that he did not report the violent attack on him out of fear of further violence).

  4. The insurmountable difficulty with the Applicant’s first ground of appeal, however, is that evidence of the hardship experienced by the Applicant in custody is not demonstrative of any error on the part of the sentencing judge. This Court’s power to interfere with a sentence pursuant to s 6(3) of the Criminal Appeal Act has been held to be conditioned on the establishment of error,[21] and, generally speaking, error cannot be established by facts or events which have arisen entirely after the primary sentencing exercise. As Street CJ (Moffit P and Lee J agreeing) observed in R v Munday,[22] “[t]he review of a sentence in the light of subsequent events is the proper province of the executive Government and not of an appeal court.”

    21. Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [35]; Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118 at [110].

    22. [1981] 2 NSWLR 177 at 178.

  5. Consistent with this observation, the principles governing the admission of fresh or new evidence on a sentence appeal were explained by Beech-Jones CJ at CL (Macfarlan JA and Davies J agreeing) in Toller v R, [23] which also concerned the impacts of the COVID-19 pandemic on the custodial conditions of an offender. In that case, his Honour said the following (at [21]-[23]):

“…one circumstance in which such evidence is received is the so‑called ‘usual basis’ which concerns evidence received in relation to this Court’s ‘independent exercise of [the sentencing] discretion’ (Kentwell v R (2014) 252 CLR 601; [2014] HCA 37 at [43]). However, this is confined to cases where House v The King error has been shown, which is not this case.

Otherwise, it has been accepted that in some circumstances this Court can receive new evidence where it is necessary to avoid a miscarriage of justice (Betts [(2016) 258 CLR 240; [2016] HCA 25] at [10]). The circumstances in which evidence not adduced at the time of the sentencing hearing can be adduced in this Court, other than on the ‘usual basis’, are very limited, although not necessarily closed. Two particular categories of such evidence are evidence that should have been, but was not, adduced because of incompetent representation (see for example Rae v R [2019] NSWCCA 284) or concerns medical conditions that the applicant was subject to at the time of sentencing but was not revealed to the sentencing court (see Hoang v R [2020] NSWCCA 324 at [16] to [22]).

However, as a general proposition, evidence concerning society-wide impacts affecting the conditions in custody that occur after the time that the prisoner was sentenced has not been received and that has not been accepted as a basis for interfering with a sentence.” (emphasis added)

23. [2021] NSWCCA 204 at [21]–[23].

  1. This statement of principle is consistent with a number of earlier authorities of this Court, including Douar v R,[24] R v Willard, [25] R v Fordham [26] and R v Many. [27]

    24. (2005) 159 A Crim R 154; [2005] NSWCCA 445 at [56] per Johnson J (McClellan CJ at CL and Adams J agreeing).

    25. (2001) 120 A Crim R 450; [2001] NSWCCA 6 at [31] per Simpson J (Dowd J agreeing).

    26. (1997) 98 A Crim R 359 at 377–8 per Howie AJ (Hunt CJ at CL and Smart J agreeing).

    27. (1990) 51 A Crim R 54 at 62 per Finlay, Allen and Badgery-Parker JJ.

  2. In a number of recent decisions of this Court where an offender was sentenced before the onset of the COVID-19 pandemic, this Court has held that the fact that the sentencing judge did not (and indeed could not) have regard to the more onerous custodial conditions that were to be brought about by the pandemic supplied no warrant for appellate intervention: see, for example, Cabezuela v R,[28] Borg v R; Gray v R,[29] GAR v R,[30] and Shannon v R. [31]

    28. [2020] NSWCCA 107 at [131], [134] per Walton J (Hoeben CJ at CL and Harrison J agreeing).

    29. [2020] NSWCCA 67 at [7], [9] per McCallum JA, [46], [48] per Adamson J (McCallum JA and Johnson J agreeing).

    30. [2021] NSWCCA 265 at [50] per Wright J (Macfarlan JA and RA Hulme J agreeing).

    31. [2022] NSWCCA 41 at [21]–[22] per Bellew J (Macfarlan JA agreeing), [25] per Dhanji J.

  3. To say this is not to ignore or diminish how severe the impact of COVID-19 related restrictions undoubtedly has been on those in prison, whose liberty is already severely curtailed by reason of their incarceration. It must be observed, however, that whilst the impact of COVID-19 restrictions has no doubt differed as between different sections of the community, that impact, in some cases equally severe, has also been felt by all members of the community during the pandemic.

  4. To the extent that the Applicant’s first ground picks up his complaint about being mistreated by other prisoners, the sentencing judge was aware and took into account the hardship the Applicant was likely to suffer whilst in prison. In any event, this matter falls into the category of subsequently occurring facts which generally cannot be called in aid to attack a sentence: see [32] above.

  5. This ground of appeal therefore must fail.

The second ground of appeal

  1. The Applicant’s second ground of appeal invokes the parity principle, by reference to the sentence imposed upon Anquetil for the common conspiracy offence against s 135.4(3) of the Criminal Code.

  2. In essence, the Applicant submits that the moderate difference in the sentences imposed upon each of the two co-offenders in respect of the common conspiracy offence does not reflect the disparities in the nature and gravity of their offending. In other words, given what are said to be marked differences between the conduct of each offender, it is the similarity between their respective sentences that is relied upon by the Applicant to engage the parity principle.

  3. In support of this ground, the Applicant emphasised the following matters:

  1. that Anquetil stood to be sentenced for two offences, whereas the Applicant was sentenced for only one;

  2. that Anquetil was found to have occupied a higher level in the criminal scheme than the Applicant, as one of its “key architects”;

  3. that Anquetil received a greater personal benefit from the offending than the Applicant, being approximately $12.2 million, as opposed to approximately $1.3 million; and

  4. that the sentencing judge took into account the onerous nature of COVID-19 restrictions in sentencing Anquetil, he having been sentenced several months after the beginning of the pandemic.

  1. The application of the parity principle was explained by French CJ, Crennan and Kiefel JJ in Green v The Queen; Quinn v The Queen (Green)[32] in the following terms:

“The sense of grievance necessary to attract appellate intervention with respect to disparate sentences is to be assessed by objective criteria. The application of the parity principle does not involve a judgment about the feelings of the person complaining of disparity. The court will refuse to intervene where disparity is justified by differences between co-offenders such as age, background, criminal history, general character and the part each has played in the relevant criminal conduct or enterprise.”

32. (2011) 244 CLR 462; [2011] HCA 49 at [28].

  1. In determining whether a disparity in sentences between co-offenders is justified by differing circumstances, an appellate court must have regard to the discretionary and qualitative nature of the process of drawing relevant distinctions between co-offenders. [33] Accordingly, the proper enquiry for an appellate court is that expressed by R A Hulme J in Lloyd v R:[34] “was the differentiation made by the judge one that was open to her [or him] in the exercise of her [or his] discretion?”

    33. Ibid at [32]; Lloyd v R [2017] NSWCCA 303 at [96].

    34. [2017] NSWCCA 303 at [97].

  2. Unlike a typical parity appeal, where an Applicant appeals from a sentence which was imposed simultaneously with, or after, the sentence imposed on their co-offender(s), here, the Applicant was sentenced some eight months before Anquetil.

  3. In R v Jones,[35] this Court expressed the strong view that a sentence could not be attacked on parity grounds if it preceded the sentencing of a co-offender. Sully J observed that:[36]

“It cannot be the case, in my view, that a sentence otherwise unappealable becomes somehow transformed into a sentence contingently appealable merely by reason of the fact that it is imposed at a time when there are outstanding sentence proceedings against some co-offender or co-offenders. A sentence when imposed is then either appealable or it is not. If such a sentence is not then appealable, thereafter it must be left, in my view, to stand and to take effect according to its tenor. The contrary approach so far from advancing the cause of justice would, in my opinion, introduce, to speak bluntly, chaos into the administration of the sentencing law.”

35. (Court of Criminal Appeal (NSW), 16 April 1992, unrep).

36. Ibid, quoted in Jones v The Queen (1993) 67 ALJR 376 at 377.

  1. On appeal in Jones v The Queen [37] (Jones), the High Court (Brennan, Deane and McHugh JJ) held, on the basis of a concession but consistent with the facts and sequence of sentencing in Lowe v The Queen[38] (Lowe), that in an appeal against sentence, an applicant may advance a parity ground by reference to a sentence subsequently imposed upon a co-offender. This was held to be so notwithstanding the fact that no point of comparison existed when the first sentence was imposed, and notwithstanding that the first sentence may have been otherwise appropriate. The Court said that it was “erroneous to regard the principle of comparability of sentences laid down in Lowe as incapable of application in favour of the first of two or more co-offenders to be sentenced.”[39] That approach has since been followed in this Court on many occasions: see, for example, R v Bellorini [40] (Bellorini), Shortland v R, [41] Saraya v R, [42] Humphreys v R,[43] and R v Ferris. [44]

    37. (1993) 67 ALJR 376 at 377.

    38. (1984) 154 CLR 606; [1984] HCA 46.

    39. Jones v The Queen (1993) 67 ALJR 376 at 377.

    40. [2000] NSWCCA 50 at [31].

    41. (2013) 224 A Crim R 486; [2013] NSWCCA 4 at [108].

    42. [2015] NSWCCA 63.

    43. [2020] NSWCCA 144 at [139].

    44. [2020] NSWCCA 325 at [11].

  2. There is some tension between this line of authority, faithfully following Lowe and Jones, and the High Court’s later statement in Kentwell v The Queen [45] (Kentwell) to the effect that an appellate court’s authority to intervene on a sentence appeal is dependent upon the demonstration of error. In a sentencing scenario such as is presented by the current application, it could perhaps be said that any “error” in the first sentence must of necessity be latent, as no point of comparison giving rise to a justifiable sense of grievance will have existed at the point of time when the sentence was imposed. But characterising the first sentence as “erroneous” would be inconsistent with the observations of Sir Anthony Mason in Lowe[46] who said:

“As the ascertainment and imposition of an appropriate sentence involve the exercise of judicial discretion based on an assessment of various factors it is not possible to say that a sentence of a particular duration is the only correct or appropriate penalty to the exclusion of any other penalty. Accordingly, a court of criminal appeal confronted with the problem of discrepancy can substitute for a severe but appropriate sentence a lesser sentence which nevertheless falls within the order of what is appropriate.”

45. (2014) 252 CLR 601; [2014] HCA 37 at [35].

46. (1984) 154 CLR 606 at 612; [1984] HCA 46.

  1. A similar point emerges from R v Bellorini,[47] in which Sully J (Grove and Simpson JJ agreeing) returned to the issue post-Jones:

“If the sentence passed upon Mrs Bellorini stood alone, I would not accept that it was beyond the range of a sound sentencing discretion. But if it be legitimate - and the decision in Jones makes clear that it is - to compare Mrs Bellorini's sentence with the later and lesser sentence imposed upon [the co-offender], then it seems to me that, however fine the balance to be struck, the better view is that Mrs Bellorini does have a justifiable sense of grievance deriving from the disparity between her sentence and that passed on [the co-offender].” (emphasis added)

47. [2000] NSWCCA 50 at [34].

  1. His Honour’s intervention was in respect of a sentence which was not itself vitiated by error at the time it was passed but which, in light of the subsequent sentence imposed on a co-offender, generated the unjustifiable sense of grievance which the High Court in Lowe made clear warranted appellate intervention in an appropriate case.

  2. Two alternative propositions follow from this. Either the observation in Kentwell [48] that an appellate court’s authority to intervene is “dependent upon the demonstration of error” is, with respect, overly broad or requires qualification, or, contrary to the general position that error cannot be established by facts or events which have arisen entirely after the primary sentencing exercise (see [32] above), the principle of parity is of such “abiding importance to the administration of justice and to the community”, to quote Sir Anthony Mason in Lowe,[49] that a subsequently passed sentence of a co-offender is an exception to this otherwise important principle, and may be had regard to when an earlier sentence is being challenged by reference to considerations of parity.

    48. (2014) 252 CLR 601; [2014] HCA 37 at [35].

    49. (1984) 154 CLR 606 at 611; [1984] HCA 46.

  3. In any case, the sequence in which the sentences were imposed necessarily modifies or informs the nature of the task to be undertaken by this court. The relevant exercise for this court cannot be to ascertain whether the sentencing judge failed to take into account considerations of parity in his sentencing remarks: indeed, as has been pointed out, at that point in time, no other sentence had been imposed which could be taken into account for parity purposes. Rather, as Lowe and the passage from Green already cited make clear, the Court’s attention is to be directed to whether the subsequent sentence is objectively capable of giving rise to a justifiable sense of grievance on the part of the Applicant.

  4. The nature and focus of this enquiry reflects that the source of the parity principle lies not in the search for error in the reasons of a sentencing judge, but rather in the norm of equal justice that underlies the common law. As was said by French CJ, Crennan and Kiefel JJ in Green at [28]-[29]:

“‘Equal justice’ embodies the norm expressed in the term ‘equality before the law’. It is an aspect of the rule of law. It was characterised by Kelsen as ‘the principle of legality, of lawfulness, which is immanent in every legal order.’ It has been called ‘the starting point of all other liberties.’ It applies to the interpretation of statutes and thereby to the exercise of statutory powers. It requires, so far as the law permits, that like cases be treated alike. Equal justice according to law also requires, where the law permits, differential treatment of persons according to differences between them relevant to the scope, purpose and subject matter of the law. As Gaudron, Gummow and Hayne JJ said in Wong v R [(2001) 207 CLR 584 at 608 [65]; [2001] HCA 64]:

Equal justice requires identity of outcome in cases that are relevantly identical. It requires different outcomes in cases that are different in some relevant respect. (emphasis in original)

Consistency in the punishment of offences against the criminal law is ‘a reflection of the notion of equal justice’ and ‘is a fundamental element in any rational and fair system of criminal justice’. It finds expression in the ‘parity principle’ which requires that like offenders should be treated in a like manner. As with the norm of ‘equal justice’, which is its foundation, the parity principle allows for different sentences to be imposed upon like offenders to reflect different degrees of culpability and/or different circumstances.” (footnotes removed)

  1. Notwithstanding that the Applicant was sentenced many months before Anquetil, it is important for present purposes that the sentencing judge had express regard to considerations of parity when sentencing Anquetil. Thus, although parity obviously could not be taken into account when the Applicant was sentenced, it could be and was taken into account when Anquetil was sentenced. In other words, it is not as though the relationship between the two offenders’ criminality has not been taken into account. The Applicant’s second ground of appeal thus encounters the difficulty that, as was said by Basten JA, Adamson J and Bellew J in Afu v R,[50] “[w]here a sentencing judge recognises the importance of the parity principle and ostensibly gives effect to it, this Court will be cautious to intervene.”

    50. [2017] NSWCCA 246 at [15], cited in Lloyd v R [2017] NSWCCA 303 at [90].

  2. It is also of importance that it was the same judge, Payne JA, who sentenced both the Applicant and Anquetil. Where the sentencing of co-offenders has been undertaken by the same judge, this fact similarly tends against appellate intervention: see, for example, Tuivaga v R; [51] Huckstadt v R; [52] and  Contos v R. [53] As was said by Button J in Huckstadt v R [54] (albeit in the context of simultaneous sentence proceedings), where the same judge hears the sentence matters of two co-offenders, “[he or she is]  in a position to consider the interrelationship between the objective and subjective features of the two offenders in an overarching way.”

    51. [2015] NSWCCA 145 at [55]–[56] per Hoeben CJ at CL (RA Hulme and Wilson JJ agreeing).

    52. [2016] NSWCCA 22 at [91] per Button J (Johnson and Fagan JJ agreeing).

    53. [2022] NSWCCA 92 at [86] per N Adams J (Brereton JA and Lonergan J agreeing).

    54. [2016] NSWCCA 22 at [90].

Consideration

  1. It is convenient to begin with a discussion of the observations made by the sentencing judge in respect of parity when sentencing Anquetil (see above at [25]–[26]). His Honour considered that the Applicant was “near the top of the hierarchy in the tax fraud conspiracy”, whereas Anquetil was “at the very top of the hierarchy” (emphasis added). To reflect this difference, his Honour said that the starting point for Anquetil should be “slightly higher” than for the Applicant. His Honour also noted the lower amount of the benefit obtained by the Applicant, being approximately $1.3 million. His Honour drew no relevant distinctions between the subjective case for each offender, or their good character.

  2. On appeal, there was no dispute that a disparity exists between the degree of criminality inherent in the conduct of each offender. In this context, no challenge was made by either party to the findings of the sentencing judge referred to in the previous paragraph. Rather, the Applicant contended that the differences noted by the sentencing judge should have resulted in a greater difference in the sentences imposed on each offender than was in fact reflected in the sentences.

  3. Five observations can be made about this argument. First, although it may be accepted that the Applicant did not devise the scheme and was not “at the very top of the hierarchy”, the findings of the sentencing judge nonetheless portray a profound, serious and protracted involvement in the conspiracy. The Applicant was a co-conspirator from the genesis of the conspiracy; he was instrumental in concealing the conspiracy from other unsuspecting staff of Plutus; and he displayed considerable dishonesty in his efforts to ensure the conspirators evaded detection by authorities, including concealing and destroying evidence (see above at [15]). This was not a case where one co-offender was merely acting at the behest or direction of another higher in the hierarchy of a criminal scheme. As Payne JA said, the Applicant was “near the top of the hierarchy”.

  4. Second, it should be noted that the Applicant’s argument in respect of the parity principle was predicated almost entirely on a comparison of the starting points and head sentences imposed upon the Applicant and Anquetil for the common conspiracy offence. However, as was observed by Dawson and Gaudron JJ in Postiglione v The Queen, [55] when comparing sentences for the purposes of the parity principle, “the head sentence is but one component”. When considering issues of parity, a court should have regard to all components of a sentence disposition, including the head sentence, the non-parole period and total effective sentences of each offender. [56] In this respect, a direct comparison between the two offenders was rendered more difficult by the second offence with which Anquetil was charged.

    55. (1997) 189 CLR 295 at 32; [1997] HCA 26.

    56. Postiglione v The Queen (1997) 189 CLR 295; 94 A Crim R 397; [1997] HCA 26 at 303 (CLR) per Dawson and Gaudron JJ; Arenilla-Cepeda v The Queen [2012] NSWCCA 267, per Johnson J (Macfarlan JA and Davies J agreeing).

  5. In particular, the fact that Anquetil was sentenced for a further offence complicates the reliance placed upon the differing monetary benefits obtained by each offender. At first blush, perhaps the most significant point of disparity between the two offenders arises from the fact that Anquetil obtained approximately $12.2 million from the offending conduct, while the Applicant obtained approximately $1.3 million. The utility of this direct comparison, however, is somewhat diluted by the fact that Anquetil was sentenced for a second offence of dealing with the proceeds of the conspiracy offence, which was necessarily significantly informed by the amount of the benefit he obtained. As was observed by counsel for the Crown in oral argument, when sentencing Anquetil, the sentencing judge primarily referred to the magnitude of the financial benefit obtained by him in the context of assessing the objective seriousness of the second offence. [57]

    57. See R v Anquetil [2020] NSWSC 995 at [97].

  6. Third, and importantly, the fact that the offending of both the Applicant and Anquetil fell towards the top of the range of objective seriousness rendered it difficult to impose sentences which differed greatly in absolute terms. The Crown submitted that because the offending of both offenders fell towards the upper end of the range, the relatively modest difference in head sentences was a necessary consequence of the fact that the sentencing judge was required to sentence both offenders within a relatively confined range. As a result, it was submitted, any greater disparity between the notional starting points for each offender would have resulted in a sentencing outcome which did not appropriately reflect the objective seriousness of the offending.

  7. This submission has considerable force. As was emphasised by the sentencing judge in his sentencing remarks for both offenders, the Plutus conspiracy is one of the most serious instances of fraud on the government revenue to come before an Australian court. The magnitude of the funds misappropriated, the duration and complexity of the criminal scheme, and the lengths to which the conspirators went to conceal their misconduct combine to depict a brazen, calculated and self-interested course of criminality. In this context, it stands to reason that a divergence in the seriousness of two offender’s conduct is less likely to be capable of justifying a large reduction in sentence. [Redacted pursuant to order 4].

  8. Fourth, the thrust of the preceding submission is, in my view, supported by the particular considerations that apply when sentencing for a conspiracy offence. The sentencing judge rightly acknowledged that regard must be had to the nature of the offence as a conspiracy when attempting to discern differences between the criminality of the co-offenders. His Honour said:

“I take into account the approach to sentencing for a conspiracy charge which was summarised by Simpson J (Spigelman CJ and Harrison J agreeing) in Tyler v R; R v Chalmers [2007] NSWCCA 247 at [78]-[85]. It was held in Tyler at [83]-[84] that sentencing for specific acts alone would:

‘... be a negation of the complex inter-connection between the various participants, and the organisational nature of a conspiracy. It would represent too literal an application of the decisions that identify the "role" of any participant as a relevant factor in the sentencing exercise. It would be to ignore the essential feature of the offence of conspiracy - the agreement to participate in an organised criminal activity. That is not to say that the physical acts of the offender whose sentence is under consideration are irrelevant. They are relevant, as one part of a complex tapestry ... ‘

I proceed on the basis that the tasks of the various participants should be seen in combination as having features which were sophisticated, coordinated, premediated, industrious and diversified.” (emphasis added)

No issue can be taken with the approach outlined by the sentencing judge in the above extract. When sentencing for conspiracy offences, considerable importance attaches to the nature of the conspiratorial agreement, in addition to the specific acts of each individual co-offender. This consideration tends to support the conclusion that the differences in criminality between the Applicant and Anquetil were adequately reflected in the disparate sentences imposed by the sentencing judge.

  1. Fifth, to the extent that the Applicant’s argument in respect of the parity principle placed reliance on the fact that the sentencing judge had regard to the impacts of COVID-19 on custodial conditions when sentencing Anquetil, but not when sentencing the Applicant, this argument should be rejected. The parity principle’s focus is on the criminality of co-offenders being assessed differently, necessarily taking into account differences in the offender’s subjective circumstances. The fact that, by virtue of being sentenced at a time pre-dating the pandemic, the Applicant did not have a particular matter taken into account in his sentencing which Anquetil did, does not offend or attract the parity principle. That can be illustrated by the fact that the accident of timing affected not only the Applicant but also many other prisoners who were sentenced before the onset of the pandemic. It is not relevant for the purposes of parity.

  2. For the reasons I have outlined, I am satisfied that the sentences imposed by the sentencing judge on the Applicant and Anquetil are capable of being “justified by differences between… the part each has played in the relevant criminal conduct or enterprise.”[58] Having regard to the differences in the offenders’ conduct, and bearing in mind the discretionary nature of the sentencing process, the fact that parity was expressly taken onto account in sentencing Anquetil and the fact that the same judge was involved in sentencing both co-offenders, there was no relevant disparity warranting appellate intervention.

    58. Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 at [28].

Conclusion and orders

  1. For these reasons, I would make the following orders:

  1. Leave to appeal is granted.

  2. The appeal is dismissed.

  3. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), these reasons for judgment are not to be published (other than to the parties and their legal representatives) until the earlier of:

  1. the conclusion of the trial of Lauren Anne Cranston (file number 2017/00148185); and Adam Michael Cranston (file number 2017/00148697); or

  2. further order of the Court.

  1. Pursuant to s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW), after order (3) ceases to have effect, the parts of these reasons for judgment which are marked as redacted on the file copy of the judgment initialled by the Chief Justice are not to be published (other than to the parties and their legal representatives) until further order of the Court.

  2. Orders (3) and (4) are made on the ground specified in s 8(1)(a) of the Act, namely that it is necessary to prevent prejudice to the proper administration of justice.

  3. Pursuant to s 11(2) of the Act, orders (3) and (4) are to apply throughout the Commonwealth of Australia.

  1. GLEESON JA: I agree with Bell CJ.

  2. YEHIA J: I agree with Bell CJ.

**********

Endnotes

Decision last updated: 27 March 2023

Most Recent Citation
Cases Citing This Decision

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Cases Cited

36

Statutory Material Cited

5

Kentwell v The Queen [2014] HCA 37
Kentwell v The Queen [2014] HCA 37
Kentwell v The Queen [2014] HCA 37