R v Ceitinn[2021] QCA 201

SUPREME COURT OF QUEENSLAND

1. [1]
   SOFRONOFF P:  I agree with the reasons of Boddice J and with the orders proposed by his Honour.
2. [2]
   BOWSKILL SJA:  I agree with the reasons of Boddice J and the orders proposed.
3. [3]
   BODDICE J:  On 25 June 2020, the applicant pleaded guilty to two counts of fraud to the value of $30,000 or more.  Each offence was committed between January 2014 and August 2015.
4. [4]
   On 15 October 2020, the applicant was sentenced to eight years imprisonment on each count.  A parole eligibility date was set after serving two years and six months of those sentences.  Pre-sentence custody of 15 days was declared as time served.
5. [5]
   The applicant seeks leave to appeal his sentence.  The ground of appeal, should leave be granted, is that the sentence imposed was manifestly excessive.
6. [6]
   The applicant does not submit that a head sentence of eight years’ imprisonment was itself manifestly excessive.  The applicant submits that, having regard to his circumstances and the sentence imposed in respect of a co-offender, Aaron East, a requirement that he serve two years and six months prior to parole eligibility was manifestly excessive.

Background

7. [7]
   The applicant was charged on indictment with the two counts with Aaron Colin East, Neil John McKenny^[1] and Daniel Alan East.
8. [8]
   The charges concerned a joint commercial enterprise in which software packages were sold to members of the public on the basis of false representations as to their functional capabilities.  The fraud was sophisticated, utilising false websites, forums and awards and fake competitions and reviews.
9. [9]
   Daniel East entered pleas of guilty to the counts on 19 June 2020.  His pleas of guilty were the subject of a contested sentence hearing over 12 and 13 October 2020.  Daniel East was sentenced on the basis that he had a lesser role than his brother, Aaron East, and the applicant.  He was sentenced to six years’ imprisonment.  A parole eligibility date was fixed after having served 20 months of that sentence.^[2]
10. [10]
    Aaron East entered pleas of not guilty to the counts, having successfully applied for a no jury trial order.  The trial commenced on 13 July 2020 and was estimated to extend for three months.  However, on 14 July 2020, after evidence had commenced, Aaron East entered pleas of guilty to each count.
11. [11]
    Aaron East was sentenced on the basis that he was an owner of the enterprise with the applicant.  He was sentenced to eight years’ imprisonment, with a parole eligibility date after serving two years and six months of those sentences.

Sentencing remarks

12. [12]
    The sentencing Judge observed the applicant had pleaded guilty and evidenced genuine remorse, but noted the applicant was involved in a sophisticated criminal enterprise which sold two software packages.  150 complainants purchased the first software package, for a little under $2 million and 10 customers purchased the second software package, for a combined sum of a little over $117,000.  The applicant had financially benefited from his involvement, receiving $230,726.61.
13. [13]
    The sentencing Judge also observed the applicant was involved in the “upper management” of the criminal enterprise during the entire relevant period and, as such, was “directly responsible for all facets of the enterprise”^[3] whether by personal act or by the acts of subordinates under direction.  Further, the criminal enterprise resulted in significant loss to numerous victims with no compensation offered by the applicant.
14. [14]
    The sentencing Judge accepted there were numerous factors in mitigation, including ongoing medical and psychological conditions; delay in the context of onerous reporting conditions whilst on bail for five years; an unlikelihood to reoffend; difficulties in undertaking incarceration during the Covid19 pandemic; the consequence of separation from his 12 year old daughter; good character and participation in community minded endeavours as supported by references; and that the burden of imprisonment was greater for the applicant due to the uncertainty of a risk of deportation upon release from custody.  The sentencing Judge accepted that, whilst the applicant had previous convictions, they were of limited relevance to sentence.
15. [15]
    Finally, the sentencing Judge observed that sentencing in respect of a sophisticated criminal enterprise designed to make money by dishonest means necessitated a sentence which included deterrence, punishment and denunciation, whilst accepting the principles of parity required a consistency in the application of sentencing principles, having regard to sentences imposed on others involved in this or a similar criminal enterprise.

Applicant’s submissions

16. [16]
    The applicant submits Aaron East was also an owner of the criminal enterprise who had a similar involvement to the applicant, benefited financially significantly more from his involvement, having received $301,462.09, and entered pleas of guilty late after the commencement of a Judge only trial.  Further, Aaron East had similar mitigating factors, including ongoing psychological conditions, separation from his family as a consequence of incarceration, a limited and irrelevant criminal history, and otherwise good character.
17. [17]
    Against that background, the applicant submits the setting of a parole eligibility date for the applicant at the same point as Aaron East, when the applicant’s pleas of guilty were early and he risked deportation, gives rise to a justifiable sense of grievance in breach of the parity principle.
18. [18]
    The applicant submits a conclusion that the parole eligibility date set for the applicant was manifestly excessive is also supported by a consideration of the sentence imposed on Lee Crane, who took part in a similar joint criminal enterprise of selling computer software packages.  Crane’s offending continued over a period of 16 months and involved 133 complainants, with a loss of $1.7 million.  Crane personally gained $345,000.
19. [19]
    The applicant submits, whilst Crane is not a co-offender and, therefore, the parity principle does not apply, Crane’s personal circumstances were almost identical to that of the applicant, with the exception that he was not facing the real risk of deportation at the conclusion of his sentence.
20. [20]
    Crane, who was a founding partner of the business venture, was aged between 40 and 41, with no criminal history, and who suffered from similar psychological conditions and difficulties with separation from his family upon incarceration and who was otherwise a man of good character, was sentenced to imprisonment for eight years, with a parole eligibility date after serving one year and 10 months of that sentence.

Respondent’s submissions

21. [21]
    The respondent submits the parole eligibility date set for the applicant fell within a proper exercise of the sentencing discretion, reflecting due consideration of the applicant’s early pleas of guilty and his personal circumstances.
22. [22]
    Further, a comparison between the criminality and personal circumstances of the applicant and Aaron East supported a conclusion that there was no breach of the parity principle by the imposition of the same parole eligibility dates.  There was genuine utility in Aaron East’s pleas of guilty, albeit late, in the context of what would have been a lengthy trial and his cooperation with the administration of justice in seeking a Judge only trial when jury trials had been suspended due to the pandemic.
23. [23]
    The respondent also submits that Crane’s sentence is not comparable.  Further, whilst Crane was involved in a similar criminal enterprise, the disparity in sentences imposed cannot give rise to a justifiable sense of grievance on the part of the applicant as the parity principle has no application.  Crane was not a co-offender.
24. [24]
    The lower parole eligibility date set for Crane properly reflected differences in the circumstances of his criminality and personally, including that the criminal enterprise in which Crane was involved yielded a benefit of about $400,000 less than the applicant’s criminal enterprise, impacted on 27 fewer complainants and continued for four months less than the applicant’s criminal enterprise.  Whilst Crane received a more substantial personal benefit, Crane did not hold the level of responsibility held by the applicant and could not properly be described as being in “the upper levels of management”.

Consideration

25. [25]
    The setting of a parole eligibility date after having served two years and six months of an eight-year sentence of imprisonment fell well within a sound exercise of the sentencing discretion in respect of an offender who had engaged in serious criminal conduct over an extended period for financial gain by dishonest means.  A parole eligibility date set at a period slightly less than one third of the head sentence properly reflected the applicant’s early pleas of guilty, and personal circumstances.
26. [26]
    Whilst the setting of the same parole eligibility date in respect of Aaron East, a co-offender, who entered pleas of guilty late, after the commencement of the trial, may raise a concern that justice has not been done, in that like cases had not been treated alike,^[4] a consideration of Aaron East’s circumstances supports a conclusion that the applicant can have no such justifiable sense of grievance and that the sentence imposed does not create an appearance that justice has not been done.
27. [27]
    Although Aaron East was, like the applicant, an owner of the joint criminal enterprise and financially benefited to a greater extent than the applicant from that criminal enterprise, Aaron East was sentenced on the basis that he was not the guiding mind behind the enterprise and his involvement was not above that of the applicant.  Further, Aaron East’s pleas of guilty were entered two days into a trial estimated to take three months and were found by the sentencing Judge to have real utility.
28. [28]
    Having regard to those circumstances, the setting of a parole eligibility date after serving two years and six months, properly reflected Aaron East’s cooperation with the administration of justice and his mitigating circumstances.  A difference in the timing of pleas of guilty did not necessarily require the setting of a longer parole eligibility date.  It is the utility of the pleas of guilty which is to be reflected on sentence.  A conclusion that Aaron East’s pleas of guilty had real and genuine utility permitted the imposition of a like parole eligibility date to that of the applicant, as part of a sound exercise of the sentencing discretion.

Conclusion

29. [29]
    The applicant’s parole eligibility date fell within a sound exercise of the sentencing discretion.  It does not, on a consideration of the whole of the circumstances, give rise to a justifiable sense of grievance, or create the appearance that justice has not been done.  The sentence imposed on the applicant was not manifestly excessive.
30. [30]
    I would grant leave to appeal but order that the appeal against sentence be dismissed.