Humphreys v R [2020] NSWCCA 144

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Humphreys v R [2020] NSWCCA 144 Hearing dates: 28 February 2020 Date of orders: 1 July 2020 Decision date: 01 July 2020 Before: Simpson AJA at [1] Johnson J at [2] Hamill J at [158] Decision: 1. Extend time for the Applicant to seek leave to appeal against sentence until 25 October 2019.

2. Grant leave to appeal against sentence.

3. Quash the aggregate sentence imposed at the Sydney District Court on 28 October 2016.

4. In its place, sentence the Applicant by way of an aggregate sentence to imprisonment for a period of seven years comprising a non-parole period of four years and three months commencing on 27 October 2016 and expiring on 26 January 2021, with a balance of term of two years and nine months commencing on 27 January 2021 and expiring on 26 October 2023.

5. The earliest date upon which the Applicant will be eligible for release on parole is 27 January 2021. Catchwords: CRIMINAL LAW - sentence - applicant convicted after trial of offences of recklessly dealing with proceeds of crime contrary to s.193B(3) Crimes Act 1900 (23 counts) and attempting to commit offences under s.193B(3) (five counts) - sophisticated scheme to defraud bank by means of fraudulent loan applications - applicant sentenced to aggregate sentence of imprisonment for nine years and two months with non-parole period of six years and three months - co-offender convicted at later separate trial of knowingly dealing with proceeds of crime contrary to s.193B(2) Crimes Act 1900 (23 counts) and attempting to commit s.193B(2) offences (five counts) - co-offender sentenced to aggregate sentence of imprisonment for six years with a non-parole period of four years - different maximum penalties for offences under s.193B(3) (10 years' imprisonment) and s.193B(2) (15 years' imprisonment) - applicant claims legitimate sense of grievance arising from lesser aggregate sentence imposed on co-offender - principles of parity, proportionality and relativity of sentences considered - relevance of co-offender receiving lesser aggregate sentence for offences carrying greater maximum penalties arising out of the same criminal enterprise - consideration of objective and subjective factors relating to the applicant and the co-offender - breach of proportionality principle established - appeal allowed - applicant resentenced taking into account proportionality principle - lesser aggregate sentence passed Legislation Cited: Crimes Act 1900 Criminal Appeal Act 1912 Cases Cited: Atilgan v R [2018] NSWCCA 5 Dayment v R [2018] NSWCCA 132 Dunn v R [2018] NSWCCA 108 Dwayhi v R (2011) 205 A Crim R 274; [2011] NSWCCA 67 Elias v The Queen (2013) 248 CLR 483; [2013] HCA 31 Gaggioli v R [2014] NSWCCA 246 Gilmour v R [2018] NSWCCA 295 Green v The Queen; Quinn v The Queen (2011) 244 CLR 462; [2011] HCA 49 Hanley v R [2018] NSWCCA 262 Ivory v R [2014] NSWCCA 181 Jimmy v R (2010) 77 NSWLR 540; [2010] NSWCCA 60 Jones v The Queen (1993) 67 ALJR 376 Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 Lowe v The Queen (1984) 154 CLR 606; [1984] HCA 46 Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39 Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17 Pham v R (2009) 193 A Crim R 190; [2009] NSWCCA 25 R v Chandler; Chandler v R [2012] NSWCCA 135 R v Formosa [2005] NSWCCA 363 R v Kerr [2003] NSWCCA 234 Rend v R (2006) 160 A Crim R 178; [2006] NSWCCA 41 Ruttley v R [2010] NSWCCA 118 Shortland v R (2013) 224 A Crim R 486; [2013] NSWCCA 4 The Queen v De Simoni (1981) 147 CLR 383; [1981] HCA 31 The Queen v Kilic (2016) 259 CLR 256; [2016] HCA 48 Texts Cited: --- Category: Principal judgment Parties: John Alexander Humphreys (Applicant) Regina (Respondent) Representation: Counsel: Mr GD Wendler (Applicant) Ms C Curtis (Respondent)