R v Koh [2001] NSWCCA 324

New South Wales Court of Criminal Appeal

CITATION : R v Koh [2001] NSWCCA 324 FILE NUMBER(S) : CCA 60172/01 HEARING DATE(S) : 15 August 2001 JUDGMENT DATE : 15 August 2001

PARTIES : Regina Yee Fang Koh JUDGMENT OF : Wood CJ at CL at 1, 15; Sperling J at 2

LOWER COURT JURISDICTION : District Court LOWER COURT FILE NUMBER(S) : 00/11/0463 LOWER COURT JUDICIAL Shadbolt DCJ OFFICER :

COUNSEL : D H Patch for the Applicant W G Dawe QC for the Crown SOLICITORS : Blessington Judd for the Applicant S E O'Connor for the Director of Public Prosecutions CATCHWORDS : Criminal Law - Sentencing - conspiracy - uncertainty as to record of proceedings - no question of principle DECISION : 1. The sentence is quashed; 2. The matter is remitted to the District Court for redetermination of the sentence.

- 1 -IN THE COURT OF CRIMINAL APPEAL

WOOD CJ at CL SPERLING J

Wednesday 15 August 2001

60172/01 Regina v Yee Fang Koh

Judgment

1 WOOD CJ at CL: I ask Sperling J to deliver the judgment to the Court. 2 SPERLING J: The applicant was charged with the common law offence of conspiracy to cheat and defraud. He pleaded guilty to the offence and was sentenced in the District Court on 21 March 2001. The indictment to which he pleaded was as follows: "That he between 30 March 1998 and 18 September 1999 at Sydney in the State of New South Wales did with Yeoh Ah Thin, Xue Quing and others, conspired amongst themselves to cheat and defraud American Express, MasterCard, Visa International and other financial institutions of divers large sums of money." 3 The applicant was sentenced to a term of imprisonment for six years to date from 7 September 1999 and expire on 16 September 2005. The sentencing judge set a non-parole period of four years and two months to date from the commencement of the sentence and to expire on 16 March 2004. His Honour did not find special circumstances. 4 The applicant seeks leave to appeal in relation to the sentence. The sentencing hearing extended over a number of days and over a considerable period of time in total. It appears that this, together with the absence of transcript, may have contributed to what occurred. It should not be inferred from anything that I am now about to say that criticism is to be levelled at anyone in particular in relation to the outcome. 5 It has become apparent, having regard to what the Court is told today, that there is considerable doubt as to what was admitted into evidence before his Honour the sentencing judge. In order to provide the context to that problem, it is necessary to mention that the charge arose out of what appears to have been a conspiracy in which a large number of persons participated intending to defraud financial institutions by the use, among other things, of counterfeit credit cards. The cards were presented to retailers by persons who came to be called "shoppers". Goods were fraudulently obtained and the goods were subsequently disposed of for profit. 6 There is no question but that the applicant took part in that conspiracy. So much is established by his plea of guilty. However, for the purpose of sentencing, there are two aspects of the facts which are of importance. One is the overall extent of the conspiracy in terms of the amount of money that was illegally obtained; and, second, the role in the enterprise that was played by the applicant. 7 It seems that the applicant was, at first, employed in the conspiracy as a shopper but afterwards took up a role that was somewhat different and involved the recording of some, at least, of the goods that were obtained. Whether his role in that regard was more extensive than what might be described as an office clerk is a matter of contention. 8 The extent of the conspiracy, in terms of the amount of money that was actually involved, is also a matter of contention. Whether the applicant was involved in a practical way in the conspiracy as a whole, or only in what might be called a cell of it, is a matter of contention. 9 In the course of the sentencing hearing, there were two bodies of evidence tendered to the Court, but what they were and whether, in one respect at least, they actually went into evidence is a matter for doubt by reference to the Court record. 10 At page 1 of the transcript of 13 September 2000, it is recorded that materials, including a record of interview and a statement of facts, were tendered. The material was not given an exhibit identifier. His Honour was invited to read the material, but it is at least questionable whether the material was admitted into evidence at that time. Certainly, it is questionable as to whether the solicitor appearing for the applicant consented to the tender. It is known that the material included an ERISP. The Court was informed by counsel today that, in his judgment, parts of the record of interview are objectionable. In other respects, it is not possible to identify with certainty what was contained in that body of material. 11 The second body of material, which is referred to at page 15 of the transcript of 15 September 2000, was given exhibit identifiers as Exhibits A, B and C in the proceedings. However, it is not possible to know with any reliability what was contained in Exhibit A which is described as a white folder. It might have been the material tendered earlier. That is not known. 12 In these circumstances it is impossible to know what was before the court on the sentencing hearing in the form of documentary evidence relevant to the two matters of importance to which I have referred, namely, the overall value of the conspiracy and the role of the applicant in it. 13 In those circumstances, there is no way that this Court can decide whether any error occurred in the determination made by the trial judge on materials properly before him, such as they may have been. 14 The Crown, very properly, does not oppose the position adopted on behalf of the applicant, namely, that, in the circumstances that have occurred, the matter should be remitted to the District Court for redetermination of the applicant's sentence. 15 The orders I propose are: 1. The sentence is quashed. 2. The matter is remitted to the District Court for redetermination of the sentence. 16 WOOD CJ at CL: I agree. The order of the Court will be as Sperling J has proposed. We do note that, in accordance with the usual practice, it would be proper for the matter to be heard by some judge other than the original sentencing judge. -oOo-