Rajagopal Hariharan v The Queen

[2012] NSWCCA 148

Court of Criminal Appeal

Supreme Court

New South Wales

• Amendment notes

Medium Neutral Citation:	RAJAGOPAL Hariharan v R [2012] NSWCCA 148
Hearing dates:	29 February 2012
Decision date:	10 July 2012
Before:	McClellan CJ at CL at [1] Rothman J at [2] Davies J at [28]
Decision:	As per the orders made by the Court on 29 February 2012 and the amended order at [29] of these reasons
Catchwords:	CRIMINAL LAW - Sentence appeal - orders on appeal issued ex tempore - reasons issued - manifest excess - latent error
Legislation Cited:	Crimes Act 1900
Cases Cited:	House v The King (1936) 55 CLR 499 Wong v R (2001) 207 CLR 584 Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520
Category:	Principal judgment
Parties:	Hariharan Rajagopal (applicant) Regina (respondent)
Representation:	Counsel: Solicitors: RBS Law (applicant) Director of Public Prosecutions (respondent)
File Number(s):	2009/265083
Decision under appeal	Date of Decision: 2010-09-20 00:00:00 Before: Judge Frearson

Judgment

1. MCCLELLAN CJ AT CL: I agree with Rothman J.

1. ROTHMAN J: The applicant, Hariharan Rajagopal, seeks leave to appeal the sentence imposed upon him by the District Court on 20 September 2010 for four counts of using a false instrument with intent, contrary to s 300(2) of the Crimes Act 1900 and one count of recklessly dealing with the proceeds of crime, contrary s 193B(3) of the Crimes Act. The applicant also seeks an extension of time.

1. The maximum sentence for each offence with which the applicant was charged is 10 years' imprisonment. Further, a Form 1, notifying eight further counts of using a false instrument with intent, was taken into account in dealing with the first count.

1. The applicant was sentenced as follows:

Counts 2, 3 and 4: Imprisonment for a fixed term of 20 months commencing 27 November 2009 and expiring 26 July 2011.

Count 5: Imprisonment for a fixed term of two years commencing 27 November 2009 and expiring 26 November 2011.

Count 1: Taking into account the matters on the Form 1, imprisonment for a non-parole period of two years and four months commencing 27 May 2010 and concluding 26 September 2012, with an additional term of 12 months, concluding 26 September 2013.

1. The overall sentence imposed upon the applicant was a non-parole period (including fixed term imprisonment) of 2 years and 10 months, commencing 27 November 2009 and concluding 26 September 2012, with a remainder of term of a further 12 months concluding 26 September 2013.

1. On 29 February 2012, at the conclusion of the hearing of the application for leave and appeal, the Court issued the following orders:

"1.Extend the time to appeal.

2.Leave to appeal is granted and the appeal allowed.

3. Sentences imposed in the District Court are quashed.

Applicant is resentenced:

4.In relation to counts 2 to 4 to a period of imprisonment for a fixed term of 10 months commencing 27 November 2009 and expiring 26 September 2010.

5.In relation to count 5 period of imprisonment for a fixed term of 18 months commencing 27 November 2009 and expiring 26 May 2011.

6.In relation to count 1 and taking into account the matters on the Form 1 the applicant is sentenced to a non-parole period of 2 years commencing on 1 March 2010 and expiring on 29 February 2012 with a total term of 2 years 9 months to expire on 31 December 2012.

7.Pursuant to s 50(1) of the Crimes (Sentencing Procedure) Act the court directs that the applicant be released to parole on 1 March 2012."

These are my reasons for joining in those orders.

Facts

1. An agreed statement of facts was available at the sentence hearing which the sentencing judge summarised and relied upon. The sentencing judge also had the benefit of a recorded interview with the applicant and the applicant gave evidence at the hearing. The agreed facts can be summarised briefly.

1. A covert physical surveillance by Strike Force Wigg (part of the Fraud Squad) observed the applicant trying to withdraw funds from two ATMs at a shopping centre at Seven Hills on Thursday, 26 November 2009.

1. Police located a blank plastic card sticking out of the slot of the second ATM. Attached to this card were small pieces of paper containing details such as bank names, account types and PINs. These two ATM incidents constitute the first offence and one of the Form 1 offences.

1. On 27 November 2009, a member of the public contacted the police after observing the applicant engaging in suspicious behaviour in relation to a Commonwealth Bank ATM in Penrith. Police attended and arrested the applicant.

1. The police found the applicant was in possession of 14 fraudulent blank cards with small pieces of paper containing written information attached to them, as well as cash and a receipt corresponding to the amount of cash that had been withdrawn.

1. $7,920 in cash was located in the applicant's wallet on his arrest. During a search of the applicant's premises, police located a further amount of $1,750. The applicant told police that a person known as "Amchor" had given him $1,750 as an advance payment for engaging in the fraudulent activity. The total amount of $9,670 formed the basis of count 5, namely, recklessly dealing with proceeds of crime.

1. The applicant had no previous criminal history, either in Australia or elsewhere. He was tempted into criminal activity by the financial rewards and the financial difficulties under which he was suffering at the time. His formative years included a supportive family environment during the turbulent period in Sri Lanka where, as a Tamil, the applicant witnessed a violent incident and had been subject to significant persecution.

1. The applicant is currently in a relationship, which had, at the time of the sentencing hearing, existed for approximately 18 months, including the time spent in prison, during which his partner had visited him. The applicant has been the subject of psychological treatment and was assessed as unable and unfit for employment by the Australian Red Cross. Psychological reports were tendered and were in evidence before the sentencing judge, and this Court.

Grounds of appeal

1. The applicant appeals on four grounds:

(i)The sentencing judge erred in the assessment of the objective seriousness of the applicant's offending having regard to the actual conduct of the applicant, the amount involved and the period of offending;

(ii)The sentencing judge erred in failing to give appropriate effect to the availability of summary disposal having found it was a viable option;

(iii)The sentencing judge erred in only applying the effect of a finding of special circumstances to the sentence for Count 1;

(iv)The sentences imposed are manifestly excessive.

Extension of time

1. The applicant filed an application for an extension of time to allow for the filing of a notice of appeal on 14 October 2011. The period for the filing of such a document expired on 26 March 2011.

1. The Crown opposes the extension of time, but is unable to point to any prejudice associated with the delay. An extension of time ought not be taken as a formality, but in the current circumstances, given the absence of any prejudice to which the Crown can point, an extension should be granted to allow the filing of a notice of appeal on 14 October 2011.

Submissions of the parties

1. Ultimately, at the hearing of the appeal, the applicant used the first three grounds of appeal as particulars of the manifest excess for which he contended. Statistics were utilised to show the range of sentences that had been imposed for offences under s 300(1) and s 300(2) of the Crimes Act.

1. The applicant submitted that the sentences imposed, and the overall sentence imposed, were at the very upper end of the range of sentences imposed for such offences, in circumstances where the objective gravity of the offences were well below the range of offending disclosed in those statistics.

1. The Crown submitted that statistics were unhelpful and that each case should be decided upon its merits. Further, the Crown submitted that even if statistics were to be considered, the sentences fell within the proper range of sentences available for the relevant offences.

Consideration

1. The approach of the applicant, in treating the other grounds of appeal as particulars of the ground on manifest excess, creates some difficulties. The mere fact that the sentences imposed may be outside the range of sentences imposed in similar cases will not of itself permit intervention by this Court: Wong v R (2001) 207 CLR 584.

1. An appeal court that is asked to deal with the exercise of discretion, such as sentencing, is required to identify error. Absent error of a kind that is one of the well-known bases for interference with an exercise of discretion, an appeal court is unable to intervene. Having said that, error can be identifiable or latent error: House v The King (1936) 55 CLR 499.

1. Latent error arises when the outcome is such that the appeal court is satisfied that there has been a failure to apply principle or a misapplication of principle (or one of the other errors), even though the appeal court is unable to identify the error.

1. Further, as to the use of tables and statistics, great care must be taken in relying on statistics or tables of past sentences imposed. Statistics and tables can be a useful guide to the range of sentences that have been imposed for offences. However, the sentencing judge must impose a sentence by applying sentencing principles to the facts and circumstances before the court; not by the mechanical application of statistics or averages: Hili v The Queen [2010] HCA 45; (2010) 242 CLR 520.

1. In this case, there may be good reason for dealing with the grounds of appeal in the manner suggested by the applicant. Each of the other grounds of appeal, or allegations of error, seeks to persuade the Court that the sentencing judge was involved in error. Yet, there is an absence of express error in the sentencing judge's statement or application of principle.

1. The objective gravity of the offences for which the applicant was to be sentenced was at the lower end of the range. It seems that, in taking into account, as the sentencing judge was required to do, the conduct of the applicant was part of a planned, organised and ongoing criminal enterprise, the sentencing judge's assessment of the objective gravity of the offence has been infected to an impermissible extent by the overall criminal activity, instead of assessing the actual role played by the applicant in that activity.

1. Whatever be the reason, I accept that the sentence imposed is outside the range available for the circumstances of the offence and the offender and it is for that reason that I joined in the orders made by the Court on 29 February 2012.

1. DAVIES J: I agree with Rothman J.

1. After the reasons of the Court were published, the Court's attention was drawn to an error with respect to the expiration date of the total term for count 1 in the Orders of the Court made on 29 February 2012. This was a result of a simple calculation error. The balance of term for count 1 should, of course, expire on 30 November 2012, not 31 December 2012. Accordingly, the Order made on 29 February 2012 with respect to count 1 is vacated. Order 6 will now read:

"In relation to count 1 and taking into account the matters on the Form 1 the applicant is sentenced to a non-parole period of 2 years commencing on 1 March 2010 and expiring on 29 February 2012 with a total term of 2 years 9 months to expire on 30 November 2012." (emphasis added).

Amendments

12 October 2012 - Paragraph inserted to correct orders

Amended paragraphs: 29

11 July 2012 - "...concluding 27 November 2009..." amended to read, "commencing 27 November 2009 and concluding 26 September 2012... concluding 26 September 2013."

Amended paragraphs: 5

Decision last updated: 12 October 2012