Bikhit v Regina [2007] NSWCCA 202

Bikhit v Regina [2007] NSWCCA 202

The evidence failed to establish that Scottish Pacific suffered any loss in respect of the transactions involving the applicant. Since defrauding requires a loss to the victim, and since the applicant's specific actions caused no loss, there was no evidentiary foundation for sentencing him for being an accessory after the fact to those substantive frauds. The sentencing judge erred in holding the applicant responsible for a larger loss or scheme which was not the subject of the charge, and the approach to parity, seriousness and the discount was in error. The applicant's incarceration was sufficient punishment; proceedings should be disposed of with no other penalty under s 10A of the...

Jurisdiction
Australia
Judgment Date
13 July 2007
Procedural Posture
Criminal Appeal / Leave to Appeal Against Sentence, Appeal Determined
Outcome
Leave to appeal granted; appeal allowed; sentences quashed; applicant resentenced so that proceedings disposed of with no other penalty; applicant ordered to be released forthwith.
Legal Topics
['sentencing' 'accessory After the Fact' 'fraud' 'parity of Sentencing' 'objective Criminality' 'application of S 10 a of Crimes (sentencing Procedure) Act 1999']
['criminal Law'] ['sentencing' 'accessory After the Fact' 'fraud' 'parity of Sentencing' 'objective Criminality' 'application of S 10 a of Crimes (sentencing Procedure) Act 1999']

Case Brief

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Procedural Posture

Criminal Appeal / Leave to Appeal Against Sentence, Appeal Determined

Legal Issues

  1. 1 ['Whether the sentence imposed on the applicant was manifestly excessive' "Whether the sentencing judge erred in assessing the applicant's objective criminality as being in the high range of seriousness" 'Whether there was parity or disparity between sentences imposed on the applicant and co-offenders' "Whether there was evidentiary basis for finding financial loss to the victim attributable to the applicant's conduct"]

Ratio Decidendi

The evidence failed to establish that Scottish Pacific suffered any loss in respect of the transactions involving the applicant. Since defrauding requires a loss to the victim, and since the applicant's specific actions caused no loss, there was no evidentiary foundation for sentencing him for being an accessory after the fact to those substantive frauds. The sentencing judge erred in holding the applicant responsible for a larger loss or scheme which was not the subject of the charge, and the approach to parity, seriousness and the discount was in error. The applicant's incarceration was sufficient punishment; proceedings should be disposed of with no other penalty under s 10A of the...

Court Disposition

Leave to appeal granted; appeal allowed; sentences quashed; applicant resentenced so that proceedings disposed of with no other penalty; applicant ordered to be released forthwith.

Orders

  • ['Grant leave to appeal.' 'Appeal allowed.' 'Quash sentence.' 'Resentence applicant under s 6(3) of the Criminal Appeal Act 1912 and s 10A of the Crimes (Sentencing Procedure) Act 1999 so that proceedings disposed of with no other penalty imposed.' 'Order the release of the applicant forthwith.']