R v Ceitinn

Case [2021] QCA 201

SUPREME COURT OF QUEENSLAND

CITATION:

R v Ceitinn [2021] QCA 201

PARTIES:

R
v
CEITINN, Stiofan
(applicant)

FILE NO/S:

CA No 241 of 2020
DC No 2562 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Sentence Application

ORIGINATING COURT:

District Court at Brisbane – Date of Sentence: 15 October 2020 (Loury QC DCJ)

DELIVERED ON:

24 September 2021

DELIVERED AT:

Brisbane

HEARING DATE:

7 September 2021

JUDGES:

Sofronoff P and Bowskill SJA and Boddice J

ORDERS:

1.    Application for leave to appeal is granted.

2.    Appeal against sentence be dismissed.

CATCHWORDS:

CRIMINAL LAW – APPEAL AND NEW TRIAL – APPEAL AGAINST SENTENCE – GROUNDS FOR INTERFERENCE – SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE – where the applicant pleaded guilty to two counts of fraud to the value of $30,000 or more, and evidenced genuine remorse – where a co-accused, Aaron East, entered pleas of not guilty to the counts, having successfully applied for a no jury trial order – where the trial commenced on 13 July 2020 and was estimated to extend for three months – where on 14 July 2020, after evidence had commenced, Aaron East entered pleas of guilty to each count – where the applicant submits that, having regard to his circumstances and the sentence imposed in respect of a co-offender, Aaron East, a requirement that he serve two years and six months prior to parole eligibility was manifestly excessive – the applicant submits the setting of a parole eligibility date for the applicant at the same point as Aaron East, when the applicant’s pleas of guilty were early and he risked deportation, gives rise to a justifiable sense of grievance in breach of the parity principle – where the respondent submits the parole eligibility date set for the applicant fell within a proper exercise of the sentencing discretion – whether a parole eligibility date set at a period slightly less than one third of the head sentence properly reflected the applicant’s early pleas of guilty, and personal circumstances – whether difference in the timing of pleas of guilty required the setting of a longer parole eligibility date

Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46, cited
Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26, cited

COUNSEL:

K V Juhasz for the applicant
D Nardone for the respondent

SOLICITORS:

Guest Lawyers for the applicant
Director of Public Prosecutions (Queensland) for the respondent

  1. SOFRONOFF P:  I agree with the reasons of Boddice J and with the orders proposed by his Honour.

  2. BOWSKILL SJA:  I agree with the reasons of Boddice J and the orders proposed.

  3. BODDICE J:  On 25 June 2020, the applicant pleaded guilty to two counts of fraud to the value of $30,000 or more.  Each offence was committed between January 2014 and August 2015.

  4. On 15 October 2020, the applicant was sentenced to eight years imprisonment on each count.  A parole eligibility date was set after serving two years and six months of those sentences.  Pre-sentence custody…

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Details
AGLC
R v Ceitinn [2021] QCA 201
Case
[2021] QCA 201
Decision Date

CaseChat Overview and Summary

In the case of R v Ceitinn, the applicant appealed against the sentence imposed by the primary judge, arguing that the parole eligibility date set at two years and six months was manifestly excessive. The applicant pleaded guilty to two counts of fraud, resulting in a sentence of eight years’ imprisonment. Aaron East, a co-offender, entered pleas of guilty later, after the commencement of the trial, and was sentenced to the same head sentence with a parole eligibility date set at the same period. The applicant submitted that the parity principle was breached because the parole eligibility date was set at the same point as Aaron East’s, despite the applicant’s early pleas of guilty and the risk of deportation. The respondent argued that the parole eligibility date fell within a proper exercise of the sentencing discretion.

The court considered the circumstances of the applicant and Aaron East, including the timing of their pleas of guilty and their involvement in the criminal enterprise. The court held that the setting of a parole eligibility date after serving two years and six months properly reflected the applicant’s early pleas of guilty and personal circumstances. The court concluded that the difference in the timing of pleas of guilty did not necessarily require the setting of a longer parole eligibility date, and that it was the utility of the pleas of guilty that was to be reflected on sentence. The court held that the applicant’s parole eligibility date fell within a sound exercise of the sentencing discretion and did not give rise to a justifiable sense of grievance or create the appearance that justice had not been done.

The court granted leave to appeal but dismissed the appeal against sentence. The court ordered that the appeal against sentence be dismissed. The court found that the sentence imposed on the applicant was not manifestly excessive, and that the setting of the parole eligibility date fell within a sound exercise of the sentencing discretion.

Orders

Orders of the court

1. Application for leave to appeal is granted.

2. Appeal against sentence be dismissed.

Background

Background to the litigation

The applicant does not submit that a head sentence of eight years’ imprisonment was itself manifestly excessive. The applicant submits that, having regard to his circumstances and the sentence imposed in respect of a co-offender, Aaron East, a requirement that he serve two years and six months prior to parole eligibility was manifestly excessive.Background The applicant was charged on indictment with the two counts with Aaron Colin East, Neil John McKenny[1] and Daniel Alan East.[1]Neil McKenny had been sentenced on his own pleas of guilty on 21 November 2018. It is not said any question of parity arises from his sentence. The charges concerned a joint commercial enterprise in which software packages were sold to members of the public on the basis of false representations as to their functional capabilities. The fraud was sophisticated, utilising false websites, forums and awards and fake competitions and reviews. Daniel East entered pleas of guilty to the counts on 19 June 2020. His pleas of guilty were the subject of a contested sentence hearing over 12 and 13 October 2020. Daniel East was sentenced on the basis that he had a lesser role than his brother, Aaron East, and the applicant. He was sentenced to six years’ imprisonment. A parole eligibility date was fixed after having served 20 months of that sentence.[2][2]On appeal, his parole eligibility date was reduced to 18 months: R v East [2021] QCA 54. Aaron East entered pleas of not guilty to the counts, having successfully applied for a no jury trial order. The trial commenced on 13 July 2020 and was estimated to extend for three months. However, on 14 July 2020, after evidence had commenced, Aaron East entered pleas of guilty to each count. Aaron East was sentenced on the basis that he was an owner of the enterprise with the applicant. He was sentenced to eight years’ imprisonment, with a parole eligibility date after serving two years and six months of those sentences.Sentencing remarks The sentencing Judge observed the applicant had pleaded guilty and evidenced genuine remorse, but noted the applicant was involved in a sophisticated criminal enterprise which sold two software packages. 150 complainants purchased the first software package, for a little under $2 million and 10 customers purchased the second software package, for a combined sum of a little over $117,000. The applicant had financially benefited from his involvement, receiving $230,726.61. The sentencing Judge also observed the applicant was involved in the “upper management” of the criminal enterprise during the entire relevant period and, as such, was “directly responsible for all facets of the enterprise”[3] whether by personal act or by the acts of subordinates under direction. Further, the criminal enterprise resulted in significant loss to numerous victims with no compensation offered by the applicant.[3]AB93, l40. The sentencing Judge accepted there were numerous factors in mitigation, including ongoing medical and psychological conditions; delay in the context of onerous reporting conditions whilst on bail for five years; an unlikelihood to reoffend; difficulties in undertaking incarceration during the Covid19 pandemic; the consequence of separation from his 12 year old daughter; good character and participation in community minded endeavours as supported by references; and that the burden of imprisonment was greater for the applicant due to the uncertainty of a risk of deportation upon release from custody. The sentencing Judge accepted that, whilst the applicant had previous convictions, they were of limited relevance to sentence.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Having regard to those circumstances, the setting of a parole eligibility date after serving two years and six months, properly reflected Aaron East’s cooperation with the administration of justice and his mitigating circumstances. A difference in the timing of pleas of guilty did not necessarily require the setting of a longer parole eligibility date. It is the utility of the pleas of guilty which is to be reflected on sentence. A conclusion that Aaron East’s pleas of guilty had real and genuine utility permitted the imposition of a like parole eligibility date to that of the applicant, as part of a sound exercise of the sentencing discretion.Conclusion The applicant’s parole eligibility date fell within a sound exercise of the sentencing discretion. It does not, on a consideration of the whole of the circumstances, give rise to a justifiable sense of grievance, or create the appearance that justice has not been done. The sentence imposed on the applicant was not manifestly excessive. I would grant leave to appeal but order that the appeal against sentence be dismissed.

Ratio Decidendi

Legal Principle Established

The lower parole eligibility date set for Crane properly reflected differences in the circumstances of his criminality and personally, including that the criminal enterprise in which Crane was involved yielded a benefit of about $400,000 less than the applicant’s criminal enterprise, impacted on 27 fewer complainants and continued for four months less than the applicant’s criminal enterprise. Whilst Crane received a more substantial personal benefit, Crane did not hold the level of responsibility held by the applicant and could not properly be described as being in “the upper levels of management”.Consideration The setting of a parole eligibility date after having served two years and six months of an eight-year sentence of imprisonment fell well within a sound exercise of the sentencing discretion in respect of an offender who had engaged in serious criminal conduct over an extended period for financial gain by dishonest means. A parole eligibility date set at a period slightly less than one third of the head sentence properly reflected the applicant’s early pleas of guilty, and personal circumstances. Whilst the setting of the same parole eligibility date in respect of Aaron East, a co-offender, who entered pleas of guilty late, after the commencement of the trial, may raise a concern that justice has not been done, in that like cases had not been treated alike,[4] a consideration of Aaron East’s circumstances supports a conclusion that the applicant can have no such justifiable sense of grievance and that the sentence imposed does not create an appearance that justice has not been done.[4]Lowe v The Queen (1984) 154 CLR 606 at 612; Postiglione v The Queen (1997) 189 CLR 295 at 301-2. Although Aaron East was, like the applicant, an owner of the joint criminal enterprise and financially benefited to a greater extent than the applicant from that criminal enterprise, Aaron East was sentenced on the basis that he was not the guiding mind behind the enterprise and his involvement was not above that of the applicant. Further, Aaron East’s pleas of guilty were entered two days into a trial estimated to take three months and were found by the sentencing Judge to have real utility. Having regard to those circumstances, the setting of a parole eligibility date after serving two years and six months, properly reflected Aaron East’s cooperation with the administration of justice and his mitigating circumstances. A difference in the timing of pleas of guilty did not necessarily require the setting of a longer parole eligibility date. It is the utility of the pleas of guilty which is to be reflected on sentence. A conclusion that Aaron East’s pleas of guilty had real and genuine utility permitted the imposition of a like parole eligibility date to that of the applicant, as part of a sound exercise of the sentencing discretion.Conclusion The applicant’s parole eligibility date fell within a sound exercise of the sentencing discretion. It does not, on a consideration of the whole of the circumstances, give rise to a justifiable sense of grievance, or create the appearance that justice has not been done. The sentence imposed on the applicant was not manifestly excessive.