Regina v Christie [2000] NSWCCA 354

New South Wales Court of Criminal Appeal

CITATION : Regina v Christie [2000] NSWCCA 354 FILE NUMBER(S) : CCA 60064/00 HEARING DATE(S) : 04/09/00 JUDGMENT DATE : 4 September 2000

PARTIES : Andrew Christie (Appellant) Regina (Respondent) JUDGMENT OF : Fitzgerald JA at 1; Newman J at 22; Greg James J at 23

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 97/11/0609 LOWER COURT JUDICIAL Solomon DCJ OFFICER :

COUNSEL : A P Cook (Appellant) D G Staehli (Crown) SOLICITORS : Legal Aid Commission of New South Wales (Appellant) Commonwealth Director of Public Prosecutions (Crown) CATCHWORDS : Sentence - parity principle - comparison of all material factors LEGISLATION CITED : National Health Act 1953 Crimes Act 1914 CASES CITED: Lowe v The Queen (1984) 154 CLR 606 Postiglione v The Queen (1997) 189 CLR 295 DECISION : Application dismissed

THE SUPREME COURT OF NEW SOUTH WALES COURT OF CRIMINAL APPEAL CCA 60064/00 DC 97/11/0609 FITZGERALD JA NEWMAN J GREG JAMES J

MONDAY 4 SEPTEMBER 2000

REGINA v CHRISTIE

JUDGMENT

1 FITZGERALD JA: The applicant for leave to appeal was convicted after a trial of five offences against s 29D of the Crimes Act 1914 Commonwealth and five offences against subsection 62(1)(f) of the National Health Act 1953. The maximum penalty for a breach of s 29D of the Crimes Act is a fine not exceeding $100,000 or imprisonment for ten years or both. The maximum penalty for a breach of subsection 62(10(f) of the National Health Act is imprisonment for five years. 2 The applicant was sentenced to imprisonment for one year commencing on 16 December 1999 in respect of each of the offences against subsection 62(1)(f) of the National Health Act and to consecutive periods of imprisonment for one years on each of the offences against s 29D of the Crimes Act, the first of such sentences to commence on 16 December 1999 and the last of the sentences to expire on 15 December 2004. A non-parole period of three years, commencing on 16 December 1999 and expiring on 15 December 2002, was fixed. 3 Subject to one matter, the sentences imposed on the applicant were not excessive, as he accepts. His application for leave to appeal is based on one ground only, namely the disparity between the sentences which he received and the sentences imposed by this Court on a co-offender, Barbara Giallussi. The respondent does not dispute that the "parity principle", as it is known, is applicable, or that the effect of that principle is to be seen in the judgments of the High Court in Lowe v The Queen (154 CLR 606.) and Postiglione v The Queen (189 CLR 295). In their joint judgment in Postiglione Dawson J and Gaudron J said at page 301: "… the parity principle as identified and expounded in Lowe recognises that equal justice requires that, as between co-offenders, there should not be a marked disparity which gives rise to a 'justifiable sense of grievance'. If there is, the sentence in issue should be reduced, notwithstanding that it is otherwise appropriate and within the permissible range of sentencing options." 4 As the prosecution correctly pointed out by reference to the judgment of Gibbs CJ in Lowe, a difference in the sentences imposed on co-offenders does not necessarily entitle the offender who received the heavier sentence to a reduction. It is necessary to compare the parts which each played in the commission of the offences and their respective ages, backgrounds, previous criminal histories and general characters to see whether the difference in the sentence gives rise to a sense of grievance which is justifiable. The need for an offender's sense of grievance to be justifiable introduces objective considerations. A sense of grievance is justifiable if the difference in the sentences would offend the sense of justice of a reasonable member of the community. 5 It is unnecessary to discuss the facts in detail. The applicant and Giallussi were shareholders and directors of a company which owned a nursing home. Between mid 1989 and January 1995 the applicant and Giallussi until she left the business in December 1993 (when she and her husband sold their interest to the applicant and his wife) made false claims for nursing and personal care staff costs for the nursing home which they supported by false certificates concerning the moneys expended by the nursing home for nursing and personal care staff. The offences were correctly described as involving "a complex and sophisticated system". False entries were made in rosters, timesheets, payroll records and group certificates. Cheques made payable to cash were drawn to what were described as "ghost" employees and cashed by either the applicant or by Giallussi. 6 The nursing home fraudulently obtained approximately $250,000 from the Commonwealth by means of the offences committed by the applicant and Giallussi. There was full restitution. In the applicant's case that involved some financial hardship in that he lost his home and business. 7 Like the applicant, Giallussi was convicted of five offences against s 29D of the Crimes Act. She was not convicted of any offences against subsection 62(10(f) of the National Health Act. It is of limited significance that some of the applicant's offences occurred after Giallussi had terminated her involvement in the nursing home, although it is relevant that he continued to defraud the Commonwealth after Giallussi had left the business and ceased offending. The amount involved in the offences committed by each was approximately the same. It is more important that, unlike the applicant, Giallussi pleaded guilty. The applicant's denial of his guilt necessitated a lengthy trial, which commenced on 22 November and continued to 16 December 1999. 8 The applicant was aged sixty five years when sentenced and of prior good character. In his sentencing remarks, the trial judge said: "I recognize in sentencing the prisoner that the prisoner, because of his age, will experience greater difficulty in the prison system than a person of lesser years. I further recognize that the prisoner, as a result of these convictions, will almost certainly lose his right to practice as an accountant and a tax agent. I further recognize that the prisoner has limited assets and that he has little chance of receiving any payment of goodwill for his accountancy practice. I further recognize that the prisoner, as a result of his convictions, will be unable for a period of five years to hold any directorships in private or public companies. I further recognize that the prisoner suffers from a medical condition known as G6DP deficiency which can impair brain and mental function on a temporary basis.