R v Baker - [2001] NSWCCA 85

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: R v Kheng [2001] NSWCCA 85 revised - 14/09/2001

FILE NUMBER(S):
60604/00

HEARING DATE(S): 19 March 2001

JUDGMENT DATE: 19/03/2001

PARTIES:
REGINA - Respondent
Kien Jin KHENG - Applicant

JUDGMENT OF: Giles JA Wood CJ at CL Simpson J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 00/11/0472

LOWER COURT JUDICIAL OFFICER: Woods DCJ

COUNSEL:
W Robinson QC - Crown
G Wendler -

SOLICITORS:
S E O'Connor

CATCHWORDS:

LEGISLATION CITED:

DECISION:
Leave to appeal granted, appeal dismissed.

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL
60604/00

GILES JA
WOOD CJ at CL

SIMPSON J

19 March 2001

REGINA v Kien Jin KHENG

Judgment

SIMPSON J :

The applicant seeks leave to appeal against the severity of the sentence imposed upon him by Judge Woods QC in the District Court following his plea of guilty to a charge of conspiracy to cheat and defraud, the charge being a common law misdemeanour. No maximum penalty is prescribed.
On the 31 August 2000 Judge Woods sentenced the applicant to imprisonment for a term of four years with a non-parole period of three years. He backdated the sentence to commence on the 20 May 1999. The reason for the back dating was that the applicant had been sentenced in Western Australia for a similar and related offence on that date and had served a non-parole period of 13 months then specified before being extradited to New South Wales to be charged with the present offence.
The events concerned a very large scale fraudulent enterprise centring around the use of counterfeit credit cards. The scale of the overall operation can best be indicated by reference to the amount of money estimated to have been its subject. The amount involved is estimated to be in the region of $US16 million.
The facts concerning the applicant showed that the transactions in which he actually participated involved some hundreds of thousands of dollars although he himself gave evidence which tended to reduce the involvement that had been stated in the facts that were put before the sentencing judge.
Judge Woods accepted that the applicant was involved at a relatively low level. He described him as "a cog in the wheel" of the enterprise. His role was to purchase goods using the credit cards. He then delivered the goods to safe houses and the goods were then either sold legally or shipped to Singapore or Malaysia for sale. Individuals participating in the way the applicant did were paid 20 percent of the value of the property, although again the evidence given by the applicant tended to down play the amount he was said to have received.
The applicant also purchased a motor vehicle which was used in the operation. He was charged with a related offence in Western Australia in May 1999 and served the 13 months non-parole period that I have already mentioned.
The sole ground on which the appeal was argued concerned the principles of parity. The enterprise involved a large number of individuals who were said to have had different roles in the organisation and execution of the conspiracy. Some of these were identified in a facts sheet that was put before Judge Woods.
Five co-offenders were sentenced in Queensland by Judge Dodds on the 12 July 2000. All were charged with State offences, some with fraud in circumstances of aggravation, an offence that carried a maximum penalty of imprisonment for ten years, and others were charged with fraud which carries a maximum penalty of five years imprisonment. All were sentenced together. Those offenders charged with the more serious offence were sentenced to imprisonment for five years and those charged with the lesser offence were sentenced to imprisonment for three years. In each case a recommendation was made that the offender be considered for parole after 18 months. In each of those cases the offender had, at the time of sentencing, spent 301 days in custody and the sentencing remarks that have been put before this Court would tend to suggest that the sentences imposed included that period of time. Two other co-offenders were sentenced in the NSW District Court by Judge Shadbolt. The sentences imposed upon them were of five years with a non-parole period of three and a half years.
There is plainly a significant disparity between the sentences imposed on the Queensland offenders from that of the NSW offenders. The sentencing remarks are succinct and disclose little of the facts of the offences, the roles played by each of the individual offenders then being sentenced, the circumstances of aggravation affecting the more serious charges or the subjective circumstances of the five co-offenders other than that they had no criminal records, their ages and that each pleaded guilty and that they had cooperated with police.
The lack of definition in the remarks on sentence renders the document of limited assistance in the determination of the parity argument. However it is stated that the offences there under consideration were committed over a four or five day period whereas the applicant's offences were at least committed over a number of months. The amount involved in the property, the subject of the Queensland charges, was just under $250,000 but there is nothing to show what each of those offenders was to receive.
The two co-offenders who came before Judge Shadbolt were treated by him as being more involved in the conspiracy. Judge Woods described the applicant as a cog in the wheel and the police officer who gave evidence described him as a foot soldier in the operation. Judge Shadbolt divided the various levels of participation in the enterprise into organisers, supervisors and a lower level of participants he described as shoppers. The two offenders whom he sentenced he put in the middle category, that is supervisor, and that is to be distinguished from the applicant who was clearly put in the third category of shoppers.
Judge Shadbolt sentenced after Judge Woods sentenced the applicant and specifically dealt with and sought to apply the principles of parity. He contrasted the roles played by those two co-offenders. The applicant was involved, at least between September 1998 and May 1999, although the operation itself appears to have gone on beyond that date.
Given the different charges that were faced by the Queensland offenders, the paucity of material to identify what they did and what their mitigating circumstances, if any, were, I am not persuaded that there is relevant disparity. Since it is not suggested that the sentence itself was manifestly excessive other than by reference to the principles of parity, it follows that I do not find any error in the sentence process. Accordingly, I would grant leave to appeal but dismiss the appeal.
GILES JA: I agree.
WOOD CJ AT CL: I also agree.
GILES JA: Those will be the orders of the Court.

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LAST UPDATED: 14/09/2001