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Heng v The Queen [2022] SASCA 24

The offender was convicted and sentenced to 1 count of conspiring to defraud the Commonwealth contrary to s 135.4(5) of the Commonwealth Criminal Code. Original sentence imposed 8 years imprisonment with a non-parole period of 6 years. Offender appealed on the ground that the sentence was manifestly excess, specifically in that the sentencing judge erred in apportioning greater culpability to the offender over the two co-accused, the head sentence was 80% of the maximum penalty and the non-parole period was fixed at 75% of the head sentence.   Parity: There was a clear basis for differentiating the offender’s conduct from the co-accused given the lead role taken by the offender as the architect and instigator of the offending, as reflected in them receiving a larger proportion of the benefits. Also relevant were the expressions of remorse and contrition on the part of the co-accused, which the offender has not shown. Comparison with sentences of the co-accused does not provide any independent basis for the court’s intervention.   Nature and Circumstances: Offending was a very serious instance of the charged offence. Offending took place over a 2 year period and involved a number of steps, activities and very significant sums of money. Having regard to the scale and full criminality of the offending, offender’s head sentence of 8 years, being 80% of the maximum penalty for this type of offence, was not manifestly excessive.   Non-Parole Period: Offender’s non-parole period was significantly greater as a proportion than that of the two co-accused (50% and 60%). While the offender’s lack of contrition was a relevant consideration, the resulting non-parole period is a very heavy one, both in its length and as a proportion of the head sentence, particularly for a first-time offender. Non-parole period fixed was of a length usually reserved for an offender who is a recidivist, or an offender in respect of whom the sentencing court has a basis for concluding that they have poor prospects of successful rehabilitation. Sentencing judge and evidence did not support any basis for making a finding of poor prospects of successful rehabilitation. Although the offender has not demonstrated any contrition or positive steps to address criminogenic factors that contributed to their offending, they had no antecedent offending and, in the period of approximately 8 years between their initial arrest and eventual conviction, did not engage in any further offending. Offender’s prospects of rehabilitation are also supported by their family and prospect of a business to which they can return. Non-parole period of 6 years (being 75% of what was already a heavy sentence) was manifestly excessive.   Leave to appeal allowed. Appeal allowed. Offender resentenced to 8 years imprisonment with a non-parole period of 5 years and 3 months (being about 65% of the head sentence).
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