Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Muhammad Jehangir KHAN v R [2012] NSWCCA 132 Hearing dates: 7 December 2011 Decision date: 28 June 2012 Before: Meagher JA at [1] Hoeben JA at [2] Rothman J at [3] Decision: (i) Leave to appeal granted (ii) Appeal dismissed. Catchwords: CRIMINAL LAW - Appeal - disparity in sentence - no justifiable sense of grievance - no error in application of totality principle - no manifest excess - discussion of principles - on facts tests not satisfied Legislation Cited: Australian Passports Act 2005 (Cth) Crimes Act 1900 Crimes Act 1914 (Cth) Crimes (Sentencing Procedure) Act 1999 Financial Transaction Reports Act 1988 (Cth) Foreign Passports (Law Enforcement and Security) Act 2005 (Cth) Cases Cited: Dinsdale v The Queen (2000) 202 CLR 321 Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36 Hili v R; Jones v R [2010] HCA 45, (2010) 242 CLR 520 House v The King (1936) 55 CLR 499 Jimmy v The Queen (2010) 77 NSWLR 540 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 R v Abboud [2005] NSWCCA 251 R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 Category: Principal judgment Parties: Muhammad Jehangir Khan (applicant) Regina (respondent) Representation: Counsel: D Carroll (applicant) C Crowley (Crown) Solicitors: Legal Aid Commission (appellant) Commonwealth Director of Public Prosecutions (Crown) File Number(s): 2009/11237 Decision under appeal Date of Decision: 2011-02-03 00:00:00 Before: Judge Sorby Judgment 1MEAGHER JA: I agree with Rothman J that leave to appeal should be granted and the appeal dismissed for the reasons which he gives. 2HOEBEN JA: I agree with Rothman J 3ROTHMAN J: Muhammad Jehangir Khan seeks leave to appeal the sentences imposed upon him by the District Court on 3 February 2011. Mr Khan pleaded guilty to seven charges and was sentenced to an overall sentence of three years' imprisonment commencing 3 February 2011 and concluding on 2 February 2014, with a total non-parole period of 18 months, concluding on 2 August 2012. 4The overall sentence was comprised of the following sentences: (1)Counts 1 and 2: Two counts of provide a falsified passport as an identity document, contrary to s 22(2) of the Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), carrying a maximum sentence of 10 years' imprisonment or 1000 penalty units or both, for which a sentence was imposed on Mr Khan, for each count, of a fixed term of 10 months' imprisonment commencing 3 April 2011 and expiring 2 February 2012 (wholly concurrent); (2)Count 3: Possess a false Australian passport, contrary to s 36(1) of the Australian Passports Act 2005 (Cth), carrying a maximum sentence of 10 years' imprisonment or 1000 penalty units or both, for which a sentence was imposed on Mr Khan of a fixed term of 6 months' imprisonment commencing 3 February 2011 and expiring 2 August 2011; (3)Count 4: Open bank account in a false name, contrary to s 24(1) of the Financial Transaction Reports Act 1988 (Cth), carrying a maximum sentence of not more than two years' imprisonment, for which a sentence was imposed on Mr Khan of a fixed term of 3 months' imprisonment commencing 3 February 2011 and expiring 2 May 2011; (4)Counts 5 and 6: Two counts of use false instrument, contrary to the Crimes Act 1900, carrying a maximum sentence of 10 years' imprisonment, for which, in relation to each, Mr Khan was sentenced to a non-parole period of eight months commencing 3 December 2011 and concluding 2 August 2012 as part of a head sentence of two years and two months expiring on 2 February 2014 (wholly concurrent sentences); (5)Count 7: Make a false instrument with intent to obtain a financial advantage, contrary to s 178BB(1) of the Crimes Act 1900, carrying a maximum penalty of 5 years' imprisonment, for which Mr Khan was sentenced to a fixed term of 6 months' imprisonment commencing 3 December 2011 and concluding 2 June 2012. Pursuant to s 16BA of the Crimes Act 1914 (Commonwealth), a Schedule of further offences was filed and the sentence on Count1 takes account of four charges on that Schedule. A further four offences, contained on a Form 1, filed pursuant to s 32 of the Crimes (Sentencing Procedure) Act 1999, were taken into account in the sentence on Count 5, above. 5One matter, to which neither Counsel referred, is that the records on appeal indicate that Counts 5 and 6, namely using false instruments, were contrary to s 302 of the Crimes Act. The indictment, which formed the basis of the arraignment of Mr Khan, does not refer to a provision number in the Crimes Act. The offence is described in words similarly to that recited above, namely, "use false instrument". Such an offence, if committed, is an offence under s 300(2) of the Crimes Act, not s 302. The maximum sentence is the same for a contravention of s 300(2) and s 302 of the Crimes Act; and otherwise the sentence depends on the circumstances of the offence and the offender. Mr Khan pleaded guilty to the charges on the indictment. 6Further, the agreed facts indicate a use of the false instrument had been effected and, if the offence considered by the sentencing judge were a contravention of s 302 of the Crimes Act, then the difficulties associated with the principles in R v De Simoni [1981] HCA 31; (1981) 147 CLR 383 would arise: see R v Abboud [2005] NSWCCA 251 at [19]. 7It is unlikely that the sentencing judge was under any illusions as to the correct offence. It is far more likely, because the remarks on sentence would have been taken from transcript, that the sentencing judge's reference to s 300(2) was transcribed as s 302. Nevertheless, the particulars of trial, filed by the Commonwealth DPP, continue that error. 8Mr Khan relies on three grounds of appeal: (i)Disparity with a co-offender Monica Khera; (ii)Misapplication of the totality principle; (iii)Manifest excess. Facts 9As earlier stated, Mr Khan pleaded guilty and agreed facts were tendered before the sentencing judge. The learned sentencing judge used those agreed facts as the basis upon which he imposed the sentences and summarised those facts in his Remarks on Sentence, as one would expect. Those agreed facts were in the following terms: "The Offender was arrested on 12 December 2008 pursuant to a joint Federal and State Identity Security Strike Team (ISST) investigation into a large number of identity fraud offences, called Operation Steerforth. A number of persons have been sentenced for various offences identified during the investigation. The principal organiser of the syndicate was Shoab Hanif. Hanif's charges are being prosecuted by the New South Wales Director of Public Prosecutions and he is listed for sentence before this Court on 24 June 2010. Hanif's syndicate was established to manufacture false identities and use those identities to open and operate bank accounts in false names in order to defraud financial institutions. Syndicate members produced false passports and false identification documents such as false tenancy agreements, pay advices and telephone accounts. These documents were used to open bank savings and credit accounts. In a typical case when credit was extended by a financial institution that credit would not be repaid. Under Hanif, the syndicate head, syndicate members performed different roles including identity manufacturers, keepers of accounts and account information, supervisors who advised others on how to make the fraudulent applications for bank accounts and syndicate members who actually lodged the fraudulent applications. The offender's role was to open bank accounts and credit accounts with financial institutions in false names by means of presenting false identity documents, including false foreign passports and a false Australian passport bearing his photograph and a signature purporting to be that of the passport holder, and other false documents including Medicare cards, credit cards, payslips and a Telstra phone bill. Offences Using the False Identity "Chand Rauf" On 28 February 2007 the Offender Muhammad Jehangir Khan attended the Commonwealth Bank of Australia at Menai Marketplace and opened a "Streamline Account" numbered 233310196317 in the false name of Chand Rauf (s.16BA Offence 3). He presented as a means of identification a false Republic of India passport number A4254126 in the name of Chand Rauf. The passport bore the Offender's photograph and a signature (Indictment Count 2). Offences Using the False Identity "Vivek Patwari" (i) Commonwealth Bank On 23 March 2007 the Offender attended the Campsie branch of the Commonwealth Bank of Australia and opened an account in the false name of Vivek Patwari (s.16BA Offence 2). As part of the application the Offender presented as identification a false Republic of India passport number A1690224 in the name Vivek Patwari. The passport bore the Offender's photograph and a signature. (s16BA Offence 1) The Offender further produced as identification a Medicare card number 2323251763 in the name of Vivek Patwari (Form One Offence 2) and an ANZ Visa card number 4564 6990 0404 6909 in the name of Vivek Patwari (Form One Offence 4). (ii) Westpac Bank On 22 May 2007 the Westpac bank received an application for a MasterCard credit card in the name of Vivek Patwari. The application was approved and a credit card issued with a credit limit of $2400. On 2 July 2007 the Offender attended the Westpac branch at Brookvale NSW representing himself to be Vivek Patwari and opened the account (Indictment Count 4). The Offender produced identification including a false Republic of India passport number A1690224 in the name of Vivek Patwari bearing his photograph and a signature (Indictment Count 1). The Offender produced as further proof of identification two payslips purportedly issued by the company Blue Eagle Security Service Pty Ltd. The payslips had been falsified (Indictment Count 5). The Offender also produced as identification a genuine ANZ Visa Card issued in the name of Vivek Patwari (Indictment Count 7). Also produced as identification was a Medicare card number 2323251763 in the name of Vivek Patwari (Form One Offence 1). Offences Using False Identity "Atul Bukhtayari" On 7 March 2008 the Offender attended the Penrith branch of the National Australia Bank and opened an account in the false name of Atul Bukhtayari (s16BA Offence 4) As part of the application the Offender produced as identification a false Australian passport number A7381813 in the name Atul Bukhtayari. The passport bore the Offender's photograph and a signature (Indictment Count 3). As further identification in support of the application the Offender submitted a false HSBC MasterCard in the name Atul Bukhtayari (Indictment Count 6) and a falsified Telstra telephone bill for account number 0515911328 in the name of Atul Bukhtayari (Form One Offence 3). As a result of the offences a loss of $2944.00 has been suffered by Westpac Bank, for which it seeks restitution." 10The sentencing judge also considered Mr Khan's criminal history and a probation and parole service presentence report dated 30 April 2010. Also tendered were three references for Mr Khan and a psychological report of 14 March 2010, compiled by W. John Taylor, Forensic Psychologist. 11The psychologist's report recites a poor early family environment caused by the death of his father when Mr Khan was in his early teens, which environment existed until Mr Khan came to Australia in February 1998. He had led quite a stable lifestyle, according to the report, which also recited that Mr Khan had no prior criminal record. However, in 2001, Mr Khan was convicted of driving while suspended, using an unregistered vehicle and driving an uninsured vehicle for which fines were imposed. I do not consider these offences as relevant to the exercise of sentencing challenged in this appeal. 12Mr Khan gave evidence before the sentencing judge and was cross-examined. That cross-examination was effective and other evidence was adduced. In the course of submissions, the Crown said: "It is the Crown's case in writing that when your Honour looks at the role that Mr Khan played in these offences, to which he's pleaded guilty, in relation to the statement of facts which sets out in objective terms the general operation of this syndicate, and the roles of different people in it, that Mr Khan, the offender, is one who made fraudulent applications for bank accounts, and lodged fraudulent applications. That is to say he is at the lower end of the scale of criminality to this ongoing criminal operation. HIS HONOUR: He certainly wasn't involved in the planning and the organisation at all on the facts, on the evidence. CROWN: No, no. Your Honour, it's not the Crown case that to the extent that bank accounts, in this case the Westpac account, was defrauded, if you like, of monies, that the offender received the benefit of that, it appears to be consistent with the operation of the syndicate that having made the application the operation of an account, or a credit account, would then be handed over to those higher above who would take advantage of it. The Crown does not dispute that Mr Khan initially got involved on the promise of money. Whether or not he was actually paid any money the Crown cannot say one way or the other, we cannot dispute his evidence about that, your Honour. The Crown does not dispute that it is quite likely that having lent himself to this criminal behaviour on the first occasion he was then subject to threats and pressure to continue doing so from time to time, or he might be exposed in some way." (Transcript, pages 49-50) 13The preferable course, when sentencing co-offenders, is that one judge sentence all of the co-offenders. Unfortunately, this did not occur in relation to Mr Khan and his co-offenders. Nevertheless, the sentencing judge was provided with the remarks on sentence for each of Mr Khan's co-offenders. The sentences imposed on each of the co-offenders were: NAME OF OFFENDER AGGREGATE NON-PAROLE PERIOD AGGREGATE HEAD SENTENCE Nazife Neha Akram Summary disposal without record of conviction Mohammed Akraim Cheema Seven months imprisonment, fully suspended, 12 month good behaviour bond, and 200 hours of community service Deepak Verma Summary disposal, without sentence, good behaviour bond to three years, fined $1000 Anjali Verma Summary disposal, good behaviour bond for three years and $1000 fine Gerard Gonaseelen Padotan Fixed term of six months' imprisonment Kamol Sodhi Summary disposal; no sentence; 12 month good behaviour bond Monica Khera Aggregate 15 months non-parole Aggregate two years and six months in sentence Arun Kumar Aggregate non-parole period of three years and nine months Aggregate head sentence of five years and six months Mohammed Akram One year three months, fully suspended Mohammed Khan (the applicant) Aggregate non-parole period of 18 months Aggregate head sentence of three years Submissions of Parties Manifest Excess 14Mr Khan submits that the objective seriousness of his offending was at the lower end of the range for offences of this nature. The sentencing judge found that Mr Khan was unlikely to re-offend and the sentence imposed was manifestly excessive, particularly given the applicant's criminal history. 15The Commonwealth Director of Public Prosecutions submits that, in order for the sentence to be manifestly excessive, the sentence must be plainly unreasonable and unjust: Dinsdale v The Queen (2000) 202 CLR 321 at 325. The DPP submits that the offences were objectively serious and part of a planned and organised activity. It involved a number of repeated offences and formed part of a wider scheme of identity fraud and dishonesty. The DPP relied upon the correctness of the sentencing judge's observation that, for offences of this nature, general deterrence is a very important aspect of the sentencing exercise. The DPP submits that neither each individual sentence nor the aggregate effective sentence was outside the appropriate range. 16Mr Khan purports to rely on statistics in order to show that the sentence imposed on him was, contrary to the submission of the DPP, outside the range ordinarily associated with these offences. Totality 17Mr Khan submits that the structure of the sentence imposed upon him does not reveal a logical basis. For example, the conduct of opening one account with false documentation on one occasion resulted in three sentences; the commencement of each sentence was different. The applicant submits there is no rational basis for failing to make these sentences wholly concurrent. 18The applicant also submits that the same sentence was imposed for the same charges, notwithstanding that one of them had attached to it further charges to be taken into account. 19Lastly, the applicant points to the longer sentences, commencing last, for the act of presenting a false passport and false MasterCard, which acts, it is said, could not warrant imposition of such a heavy sentence, particularly when an additional penalty was imposed for the production of false passport to open the same account. Further, the accumulation did not reflect the fact that the offences were essentially for acts of a criminal nature, the last three of which were committed under coercion. 20In response, the DPP submits that, given the nature and number of offences for which Mr Khan was to be sentenced, a degree of accumulation was required in order to reflect the total criminality. Once it is clear, submits the DPP, that the sentencing judge has found the correct facts and expressly (or impliedly) applied the principle of totality, the degree of accumulation is a matter within the discretion of the sentencing judge. 21The DPP submits that the structure of the sentences does have a logical and rational basis. That basis was the imposition of sentences for counts 1, 4, 5 and 7 (all of which concern the false identity of Vivek Patwari) of three years imprisonment with a non-parole period of 18 months, all other sentences to be served concurrently with the sentences for those counts. 22The DPP submits that his Honour's approach was to deal with the overall criminality involved in each aspect of the transaction related to the fraudulent identity, rather than to group the sentences according to each offence. Further, the DPP submits there is no error in such an approach. Lack of parity with Monica Khera 23The applicant, Mr Khan, contends, as one must to succeed on the basis of lack of parity, that he has a justifiable sense of grievance when compared with Monica Khera, who received an overall sentence that was lighter than that imposed on Mr Khan. She was the wife of Arun Kumar and she pleaded guilty to 13 charges, with two further charges taken into account. 24As is evident from the foregoing table, Ms Khera was sentenced to an aggregate sentence of 15 months' non-parole period (compared to Mr Khan's aggregate 18 months' non-parole period) as part of a head sentence of two years and six months (compared to Mr Khan's aggregate head sentence of three years' imprisonment). 25Mr Khan submits that, while his Honour expressly dealt with parity between Mr Khan and Mr Akram during argument on sentence, and was provided by the Crown with submissions as to parity with Arun Kumar, his Honour did not address parity as between Mr Khan and Monica Khera. Were he to have addressed the issue, Mr Khan submits, his Honour would have been required to impose a sentence on Mr Khan that was less onerous than the sentence imposed on Ms Khera. 26Mr Khan submits that Ms Khera's "culpability is greater" and the "only additional mitigating feature with respect to Ms Khera... was an early plea." 27The DPP points out that Mr Khan put no submission to the sentencing judge as to appropriate parity and allowed his Honour to fix the relative sentence for Mr Khan, assisted only by the Crown's submission below, that the sentence should be fixed somewhere between that of Mr Akram's and Arun Kumar's sentences. 28The DPP also submits that the "co-offenders" are not "co-offenders in the strict sense", with each participating in the same overall criminal enterprise, but each also been charged with different offences and a different number of offences, depending on the conduct of the offender. Further, the DPP contends that there is a rational basis for the difference in treatment of Mr Khan and Ms Khera and that, therefore, Mr Khan can have no grounds for a justifiable sense of grievance for the different sentence imposed on him. Consideration Manifest Excess and Totality 29It is necessary, because of the nature of the submissions on these questions, to deal with grounds two and three of the appeal, namely, manifest excess and totality, at the same time. Generally, Mr Khan criticises the aggregate sentence more than each of the individual sentences imposed. 30At the outset of these reasons, the maximum sentence for each of the offences has been recited. In terms of individual sentences, the offences charged under Counts 1, 2, 3, 5 and 6 carried maximum prison sentences of 10 years' imprisonment (plus fines), Count 4 carried a prison sentence of not more than two years and Count 7 carried a prison sentence of five years. In order of commencement date, the structure of the sentence imposed by his Honour was: Commencement date Conclusion non-parole period (if any) Conclusion head sentence Count 4 3/2/11 N/A 2/5/11 Count 3 3/2/11 N/A 2/8/12 Counts 1 & 2 3/4/11 N/A 2/2/12 Count 7 3/12/11 N/A 2/6/12 Counts 5 & 6 3/12/11 2/8/12 2/2/14 31As can be seen from the foregoing table, there is significant concurrence of sentences. Counts 4 and 3 are wholly concurrent and have the effect of adding 2 months to the sentence otherwise imposed for Counts 1 and 2. Similarly, Counts 1 and 2 add eight months to the sentence imposed for Counts 7, 5 & 6 (which are wholly concurrent). 32In terms of individual sentences, given that the maximum sentence for five of the counts is 10 years' imprisonment, none of the sentences are particularly severe. However, the setting of a sentence that is appropriate is not a mathematical exercise. Nor can a sentencing judge assess the appropriateness of a sentence by calculating some percentage of the maximum permitted by the law. 33In order to set an appropriate sentence, a sentencing judge must consider the objective seriousness of the offence and the circumstances of the offender. The purpose in sentencing any offender seeks to resolve what are often, if not necessarily, conflicting goals. In serious crimes, the importance of punishment and public deterrence loom large. These include the protection of society, personal and public deterrence, retribution and reform. Each of those factors, particularly personal and public deterrence, and punishment, must have regard to the gravity of the circumstances viewed objectively within the range of crimes that may fall within the offence charged. 34Reform or rehabilitation may also be significantly affected by the objective circumstances of the offences, but it is a factor affected most obviously by the subjective circumstances and the capacity for rehabilitation. That capacity for, and the likelihood, if any, of, rehabilitation in turn impacts upon the degree to which a sentence is fixed which ensures the protection of society and the personal deterrence of the offender. There is no single correct sentence and the often complicated interplay of considerations point in different directions. 35The subjective circumstances of Mr Khan were not especially compelling. He was 37 years of age, but had no serious prior criminal activity and had a family, including a very young child. He had suffered serious deprivation that brought him to Australia. The sentencing judge recited all of the relevant subjective factors, with which facts Mr Khan does not take issue. I need not repeat them, except to the extent that they are relevant to the submissions on disparity. His Honour also allowed a 10 percent reduction in the sentence for a late plea (the first indication of the plea of guilty was on the first day of the trial fixed in the District Court). 36Mr Khan initially became involved in the criminal enterprise as a result of a promise of financial reward and the possibility of full-time employment. After his initial involvement, his involvement was the result of some coercion, being the threat that, unless he continued to assist in the criminal enterprise, he would be reported to the police. As the sentencing judge noted, Mr Khan at no stage attempted to inform the police of what was occurring, or what had been planned, and when he was assisting the police, in the early stages, he did not volunteer his own role in any offence. After noting the evidence about coercion and the other matters to which reference has just been made, the sentencing judge said: "The Crown submitted, and I agree, that the objective seriousness of the offending could be gauged by the following factors: the offender engaged in for applications for bank accounts in false names over a period of just over one year. Each application was supported by the offender's presentation of a false passport. Each false passport required the offender to have carried out a number of acts, including: (i) Providing a photograph for the purpose of creating the false passports; (ii) Providing signatures in the false names for the purpose of creating a false passports; (iii) Possessing and presenting the passports as proof of identity. As well as the false passports, the offender provided other documentation to support the applications. The applications each required the personal attendance of the offender and a bank branch where he signed the application in a false name. The offending conduct was planned and repeated as part of a wider scheme to use false identification to open bank accounts for the purpose of fraudulently obtaining money and/or financial advantages from banks and other institutions. This offender was not the instigator or planner of the offences. He was to some extent caught up in them, but he did participate in them. In my view these factors point to the offences, although serious, falling towards the lower end of the scale for such offences, but not at the lowest end." 37The foregoing comment was open to the sentencing judge and is not challenged on appeal. The sentences that have been imposed are at the lower end of the scale for such offences, but not the lowest end. 38The ground of appeal that raises issues associated with totality, may, on one view, at least, be a different way of arguing the same issue raised by the ground of appeal relating to manifest excess. 39The charging of two offences that involve common elements requires a court to ensure that there is no double punishment for the one offending course of conduct: Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610 at [40]. In identifying whether a single act was an element of each offence charged, a court should approach the matter as a matter of common sense and not as a matter of semantics: Pearce at [42]. 40When sentencing an offender for more than one offence, a sentencing judge must fix an appropriate sentence for each offence and only then consider questions of cumulation or concurrence and questions of totality: Pearce at [45]; this approach should be taken even in circumstances where there is delay and different jurisdictions, or judges, are imposing the sentence: Mill v The Queen (1988) 166 CLR 59. 41There is no single correct answer to the foregoing exercise of discretion and it cannot be conducted arithmetically: Pearce at [46]; Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357. The principle of totality, which underpins the two grounds of appeal raised, requires that each individual sentence reflect the criminality of that offence and the overall sentence imposed reflects the total criminality of the crimes committed: Pearce. 42In order for there to be manifest error, the outcome of the application of the sentencing discretion must imply some misapplication of principle, error of law or mistake of fact, or the consideration of extraneous or irrelevant material or the failure to consider relevant and necessary material; and it must not be referable to an identifiable error that is capable of being corrected: House v The King (1936) 55 CLR 499 at 504 - 505. Sentencing is an exercise of discretion that involves the intuitive synthesis of the competing goals of the sentencing process. The sentence imposed by his Honour does not reflect manifest or identifiable error. 43As stated, when a sentencing judge is required to impose a sentence for a number of offences, related and unrelated, the sentencing judge must fix an appropriate sentence for each offence and then determine the degree to which the sentences will be served concurrently or will accumulate. The purpose is to ensure that no aspect of the criminal conduct is the subject of double punishment and that the overall sentence reflects the criminality of the offending conduct, as a whole, and no more. 44Assessing the degree to which sentences should be served concurrently or cumulatively is quintessentially an instinctive or intuitive process. Clearly, in this case, the sentencing judge has been aware of the principle of totality and has sought to accommodate that principle in the structure of the sentencing that has been imposed. In applying the principle of totality, it is difficult to provide greater transparency than a correct statement of the facts and an express, or implied, application of the principle. 45Where this Court, on appeal, examines the application of the totality principle by a sentencing judge, assuming the principle has been purportedly applied, the result will either manifest a correct application of the principle or otherwise. Again, the structure of the sentence imposed on Mr Khan does not manifest a misunderstanding or misapplication of the totality principle. His Honour sentenced for seven counts involving both Commonwealth and State regimes. He expressly imposed, in his view, "a sentence... that is of a severity that is appropriate in all the circumstances". I agree with that view. 46His Honour carefully differentiated between the regime under the Commonwealth legislation and under the State legislation. He applied to each offence the appropriate criteria, prescribed by the different statutory regimes. He fixed an appropriate sentence for each offence and an appropriate overall sentence: see Pearce. His Honour took account of the matters on the Commonwealth Schedule in fixing the sentence on Count 1, as well as the offences on the Form 1 in sentencing for Count 5, one of the State offences. 47His Honour correctly noted that general deterrence was an important factor in setting a sentence for these offences given the increasing prevalence of such offences in the community. His Honour set out the subjective circumstances, to which findings there is no challenge; took into account the subjective circumstances in an appropriate manner; and considered whether a full-time custodial sentence was required, which, his Honour concluded, it was. 48The sentences imposed by his Honour do not disclose any error as a result either of manifest excess or a lack of totality. These grounds of appeal must fail. 49Lastly on these issues, I should refer to the use of statistics. The use of statistics is a helpful means of ascertaining, particularly where there is a large number of offences recorded, the sentences that have been imposed in the past, on average. By definition, following a statistical pattern for past offences will, necessarily, entrench that pattern. Statistics, therefore, while helpful, must be used with care. In this case, the statistics are unhelpful in determining whether the sentencing judge has fallen into error: Hili v R; Jones v R [2010] HCA 45, (2010) 242 CLR 520. Disparity 50In order for an appellant to succeed on the ground of appeal relating to disparity, a justifiable sense of grievance must be disclosed on the material before the Court. Mere disparity or difference in a sentence that is imposed on co-offenders will not be sufficient. There must be a disparity that does not reflect a rational difference between the co-offenders. 51The High Court of Australia dealt with the parity principle in Green v The Queen; Quinn v The Queen [2011] HCA 49; (2011) 86 ALJR 36. In Green & Quinn, the High Court reiterated that the parity principle derives from the fundamental notion of equal justice, involving the general concepts of "systematic fairness", "reasonable consistency" and "equality before the law". Equal justice is an aspect of the rule of law, which the majority in Green & Quinn traced to 16th century English philosophy and which was described by me in Jimmy v The Queen (2010) 77 NSWLR 540 at [254] - [256], by reference to a judgment of the Canadian Supreme Court, as deriving from Aristotelian concepts. Equal justice is fundamental to the rule of law. 52Further, a ground of appeal that is based upon a lack of parity necessarily involves the proposition that there is no explicable basis for the distinction between the two sentences imposed and sought to be compared. As a consequence, it is only after the Court considers whether the sentence that is subject to appeal is otherwise in accordance with law, and, to the extent it is not, corrects any error, that the Court is able meaningfully to deal with the issue of disparity with a co-offender. It is because of that issue that I have chosen in these reasons to deal last with the ground of appeal that raises disparity in the sentences imposed. 53A difficulty that often arises, as was discussed in both Green & Quinn and Jimmy, is where the alleged sense of grievance associated with the disparity results from a comparison between participants in the one criminal enterprise who are charged with different offences. The majority in Green & Quinn, after dealing with earlier judgements of the High Court on the parity principle, made clear that, because the foundation of the parity principle is "in the norm of equality before the law" and: "... its application [must] be governed by consideration of substance rather than form. Formal identity of charges against the offenders whose sentences are compared is not a necessary condition of its application.... The greater the difference between the crimes, the greater the practical difficulties, particularly where disparity is said to arise out of the sentence imposed on a co-offender who has been charged with an offence that is less serious than that of the appellant.... Those practical difficulties and limitations, however, do not exclude the operation of the parity principle. The effect given to it may vary according to the circumstances of the case, including differences between the offences with which co-offenders are charged" (at [30], per French CJ, Crennan and Kiefel JJ). 54In Jimmy, while each of the members of the Court expressed the principle slightly differently, the Court concentrated on the practical difficulties associated with the application of the principle to persons who were not strictly co-offenders, but, nevertheless, accepted that the principle, by whatever name it is called, applied (at [136], per Campbell JA, at [245]-[246], per Howie J, and in my reasons at [259]-[266]). Ultimately, the question remains, in dealing with a ground of appeal based upon disparity, is the alleged sense of grievance justifiable? It may be that the difference in the charges preferred justifies the difference in the sentence imposed, but that may not always be the case. 55The foregoing is best illustrated by an example. Assume two persons kill another. Also assume that the Crown has, for bona fide reasons, preferred a charge of manslaughter against one of the killers. There is a plea of guilty and a sentence imposed. Thereafter, on the basis of additional evidence obtained, the Crown prefers a charge of murder against the other killer, who pleads guilty. Can it seriously be suggested that there can be a claim for disparity in sentence where one felon is sentenced for murder and the other for manslaughter, if given their objective and subjective circumstances were otherwise indistinguishable? 56It is necessary to examine in more detail the issues affecting the sentences of each different participant in the criminal enterprise, being the circumstances of the charges preferred against the relevant participants and, to the extent that a proper comparison is appropriate, their subjective and objective circumstances. 57On appeal, the Crown tendered a statement of facts detailing the whole of the criminal enterprise. That statement of facts was marked exhibit A in the appeal. It is unnecessary to repeat it. For our purposes, it is sufficient to recite that Mr Hanif was relevantly the most senior member of the syndicate and planned and organised the criminal operation (either alone or with others) and was the person who was intended to obtain a significant part, if not all, of the proceeds of the crime. Relevantly next in seniority was Mr Kumar. 58As earlier stated, Mr Kumar was sentenced to an aggregate head sentence of five years and six months with an aggregate non-parole period of three years and nine months. Mr Khan does not seek parity with Mr Kumar. Nor does he suggest that the sentence imposed on Mr Kumar gives rise to a justifiable sense of grievance. 59Mr Khan also does not suggest that a proper comparison, for the purposes of sentencing, can be made with co-offenders Nazife Akram, Cheema, Deepak Verma, Anjali Verma, Padotan, or Sodhi and no disparity submission is based on their sentences. Mr Khan submits that the justifiable sense of grievance arises from the disparity in sentence imposed upon him compared with the sentences imposed upon Mr Akram and Ms Khera. 60In relation to the charges preferred against each, I have earlier set out the charges against the applicant, to all of which he pleaded guilty. The charges preferred against Ms Khera were two counts of possession of a false foreign passport, eight counts of providing a false foreign passport, two counts of opening a bank account in a false name, and one count of the use of a false instrument (13 charges in all). Mr Akram was charged with one count of possession of a false foreign passport, one count of the use of the false certificate of Australian citizenship, and one count of providing a false foreign passport. As can be seen, the charges preferred against each were quite different and may, of themselves, give rise to a rational difference in the sentences imposed. 61However, Ms Khera was charged with more offences of a more serious kind than Mr Khan. Further, Ms Khera sought to have the sentencing judge take account of two further additional offences on the Schedule, being two counts of open a bank account in a false name. Mr Khan, likewise, sought for the sentencing judge to take account of additional offences on a Schedule, being, one count of provide a false foreign passport, three counts of open a bank account in a false name, three counts of use a false instrument, and one count of obtaining financial advantage by misleading statement. When these additional offences are taken into account, the number of offences (albeit of different kinds) for Mr Khan and Ms Khera are the same. However, it must be remembered that it is only the offences, which are charged (not those on the Schedule), for which the offender is sentenced. 62Mr Akram's offences were committed over a period in excess of three years but, given the nature of the charges, there were significant periods of time in which no offences were committed. Mr Khan's offences were committed over a period of some 12 months. Ms Khera's offences were committed in 2002 and again in 2006 and 2007. The last mentioned duration must be qualified by the fact that Ms Khera was overseas for a significant period between 2003 and 2006. 63Mr Khan's conduct, as has been stated, can generally be summarised as opening bank accounts and credit accounts with financial institutions by means of presenting false identity documents. As has already been stated, Mr Khan was neither the instigator nor planner of the offences. Mr Akram attended at RTA registries and fraudulently applied for drivers licences in false names using false identities. 64It is necessary to deal, to some extent, with the role of Mr Kumar. Ms Khera was Mr Kumar's wife. To some extent they acted together and their roles included the obtaining of drivers licences in false names, opening and operating bank accounts in false names and maintaining and storing information obtained and used by the syndicate relating to false identities. 65However, Ms Khera was in the nature of a "runner" or "courier", acting under the directions of Mr Kumar and very much as a subordinate to him. As a consequence, the role and objective criminality of her offences are significantly less than that associated with Mr Kumar. 66Mr Khan originally became involved in the criminal enterprise on the basis of a promise by Mr Hanif of full-time employment and an amount of money ($500), to which reference has already been made. After his initial involvement, Mr Khan continued to be involved, on the evidence given by him, as a consequence of threats made by Mr Hanif that his involvement in the criminal enterprise would be disclosed to law enforcement authorities. Nevertheless, Mr Khan did not rely upon duress as a defence to the commission of the offences. Further, it is relevant that the only threat made was the disclosure of his initial involvement in crime. 67Mr Kumar initially became involved in the criminal enterprise, and continued to be involved in it, because of the financial circumstances associated with some failed business ventures. There was some suggestion that Mr Hanif made threats of physical harm against Ms Khera and Mr Kumar's children, but the relevant sentencing judge did not accept that these threats occurred or were the motivating reason for Mr Kumar's criminal conduct. 68Whatever Mr Kumar's motives were, the sentencing judge accepted that Ms Khera became involved, and continued to be involved, because of her husband and because of her misplaced loyalty and submissiveness to him. In other words, the sentencing judge took account of the fact that under Ms Khera's traditional Hindu upbringing and culture she was overborne and required to be submissive to the wishes of Mr Kumar, even when he was acting illegally. This was a significant subjective factor in determining the sentence to be imposed on Ms Khera. 69Further, Mr Kumar received between $200 and $1000 for each false bank account that he opened and Ms Khera benefited from those amounts because they were used to purchase household appliances and pay food and living expenses. 70Mr Akram had prior offences of a relevant kind. Ms Khera had none and, as earlier stated, Mr Khan had some traffic offences. Ms Khera was given a 25 percent discount for her plea of guilty because she entered a plea at the earliest possible opportunity. Mr Akram was provided with a 50 percent discount for both the plea of guilty and the assistance given to police. Again, as earlier stated, the discount allowed for the late plea by Mr Khan was 10 percent. 71Further to the foregoing, the law enforcement authorities do not consider that Mr Khan has provided assistance of any note. This fact, in terms of disparity should be compared, as stated, with the substantial assistance provided by Mr Akram for which he was provided a significant discount and for which he is, according to the relevant sentencing judge, likely to suffer more onerous conditions of incarceration. Ms Khera provided no assistance but, on the material before the Court, Ms Khera's children were threatened as a result of the perceived assistance by her husband, Mr Kumar. These threats are different to the allegations relating to Mr Kumar's motives (see [68] above) for the crime and occurred much later in time, when it was thought Mr Kumar was providing assistance to police. 72In the case of Mr Khan, the sentencing judge made no finding of remorse. In the case of Ms Khera and Mr Akram, the relevant sentencing judges made findings of genuine and significant remorse and insight into the offending that had occurred. 73The foregoing facts were before the sentencing judge (or found by the sentencing judge) as part of the process of sentencing Mr Khan. In summary, the charges preferred against Mr Akram are significantly different from those preferred against Mr Khan and that, of itself, may well explain the difference in sentencing between them. However, to that must be added the discount afforded to Mr Akram for the early plea of guilty and assistance to authorities and the other matters to which reference has now been made. In my view, there is no justifiable basis for feeling a sense of grievance as to the different sentence imposed upon Mr Akram, as compared to Mr Khan. 74Similarly, the difference between the sentence imposed upon Ms Khera and that imposed upon Mr Khan is, in my view, justified by the different circumstances relevant to each offender. Even though Ms Khera has been seemingly charged and sentenced with more offences, each of which is serious, her role in carrying out the directions of Mr Kumar ameliorates the effect of that circumstance on objective seriousness. In my view, as an overall enterprise and in terms of the role of each of Ms Khera and Mr Khan, it cannot be said that Ms Khera's role was greater than that of Mr Khan, nor that the objective seriousness of the offences was greater. 75Ms Khera was not, as submitted by Mr Khan, higher in the hierarchy than Mr Khan. Further, Ms Khera's sentencing judge took into account, as a significant factor, her submissiveness and cultural role together with the threat to her children as a result of the perceived assistance of her husband. 76The difference in the sentence, on aggregate, imposed upon Ms Khera and Mr Khan were that Ms Khera received a sentence that was three months lighter in terms of aggregate non-parole period and six months lighter in the aggregate head sentence. The different circumstances, both objective and subjective, relating to Ms Khera and Mr Khan permitted different treatment. The difference between them does not give rise to a justifiable sense of grievance and is explicable on the facts before each of the sentencing judges. 77This ground also must fail. Conclusion 78Each of the grounds of appeal, in my view, fails. As a consequence, I propose that the Court make the following orders: (i)Leave to appeal granted; (ii)Appeal dismissed. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 July 2012