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10
Court of Criminal Appeal 26 November 1999

R v Giam (No. 2)

[1999] NSWCCA 378

Also reported as (1999) 109 A Crim R 348
Fraud & dishonesty
CRIMINAL LAW SENTENCING CROWN APPEAL CHEAT AND DEFRAUD AS A DIRECTOR INADEQUACY EVIDENCE

Citation: R v Giam (No. 2) [1999] NSWCCA 378
Court: Court of Criminal Appeal, New South Wales
Date: 26 November 1999
Judge(s): Dunford J, Hidden J, Smart AJ

Background

The respondent, an accountant, was convicted by a jury on seven counts arising from his involvement in a scheme using foreign investment funds channelled through Australian company structures. Six counts concerned making false statements with intent to obtain an advantage (contrary to s 178BB of the Crimes Act 1900), and one count alleged that he, being a director, did cheat and defraud (contrary to s 176A). The offending involved significant sums of money and a serious breach of trust.

At sentencing in the District Court, the judge imposed fixed terms of 2 years and 9 months imprisonment on each of the six s 178BB counts (to be served concurrently), but on the s 176A director fraud count, deferred passing sentence and instead ordered the respondent to enter a recognisance of $1,000 to be of good behaviour for five years, with supervision and conditions relating to gambling. The overall structure reflected the sentencing judge's view of total criminality across all seven counts.

The respondent then successfully appealed the six s 178BB convictions on the ground that those counts were duplicitous, resulting in those convictions being quashed and a new trial ordered. With the custodial sentences for those counts removed, the Director of Public Prosecutions appealed the sentence on the remaining s 176A count as manifestly inadequate.

  • Whether the Crown appeal should proceed notwithstanding that no decision had yet been made to retry the respondent on the six quashed counts
  • Whether s 12 of the Criminal Appeal Act 1912 prevented the Court from taking into account that the six other convictions had been set aside
  • Whether the Court needed formal evidence of its earlier decision quashing those convictions, or could treat that as a matter of record
  • Whether any delay in bringing the Crown appeal (approximately 10 months after the original sentence) warranted declining to hear it on the merits
  • Whether the recognisance imposed for the s 176A director fraud offence was inadequate
  • Whether credit should be given for time already served in custody (under the since-quashed sentences) and for time spent on conditional liberty since release

Decision

The Court held it was appropriate to proceed with the appeal even though the Crown had not yet decided whether to retry the respondent on the six quashed counts. The 10-month gap between the original sentence and the appeal was not, in context, a reason to decline jurisdiction: the appeal had been filed promptly after the earlier appeal succeeded, within days of those convictions being quashed.

On the procedural question of evidence, the Court confirmed it did not need to receive formal evidence of its earlier decision upholding the appeal against the six counts. That decision was a matter of the Court's own record, and s 144 of the Evidence Act 1995 (which allows a court to take judicial notice of matters of common knowledge and its own proceedings) applied accordingly.

The Court found the sentencing judge had structured the original sentences to reflect total criminality across all seven counts, with the recognisance on the s 176A count effectively functioning as the "additional term" in that overall structure. Once the custodial sentences on the other six counts were removed, that recognisance was plainly inadequate standing alone for a serious director fraud offence carrying a maximum of 10 years imprisonment. The amount of money involved and the breach of trust demanded a custodial sentence.

Applying the principles governing Crown appeals, the Court determined that a sentence of 2 years minimum term and 2 years additional term would have been appropriate. It then gave credit for the 10 months the respondent had already spent in custody under the since-quashed sentences, and for time on conditional liberty since his release. The Court also held that, following the approach in R v Tolmie, credit for time served under subsequently quashed convictions was warranted in the particular circumstances of this case, distinguishing cases where such credit would ordinarily not apply.

Orders Made

  • Crown appeal allowed
  • Recognisance quashed
  • Respondent re-sentenced to imprisonment for a minimum term of 14 months (commencing when he enters custody), with an additional term of 16 months
  • On expiration of the minimum term, the respondent to be released on parole subject to standard conditions and further conditions requiring supervision by the Probation and Parole Service, compliance with directions (particularly regarding gambling rehabilitation or counselling), total abstinence from gambling, and non-attendance at gambling establishments
  • A bench warrant to issue for the respondent's arrest, to lie in the office for 7 days, with provision for it not to be executed if the respondent surrendered to custody within that period

Key Takeaways

  • The Court of Criminal Appeal confirmed that sentencing for multiple offences by structuring sentences around overall "total criminality" (with less regard to the appropriateness of individual sentences for each offence) risks masking error and producing anomalies, following Pearce v The Queen (1998) 194 CLR 610 and R v Thomas [1999] NSWCCA 168.

  • A Crown appeal against sentence on one count may properly proceed even where related convictions have been quashed and a retrial not yet determined, provided the appeal was brought promptly once the earlier appeal succeeded.

  • Under s 144 of the Evidence Act 1995, a court does not require formal evidence of its own prior proceedings; those are matters of record of which judicial notice may be taken.

  • A recognisance (essentially a good behaviour bond) was held to be manifestly inadequate for a serious director fraud offence involving significant money and a breach of trust, even accounting for Crown appeal principles requiring restraint in intervention.

  • Credit for time served in custody under subsequently quashed convictions is not automatically unavailable. In appropriate circumstances, consistent with R v Tolmie, a sentencing court on a Crown appeal may reduce the new sentence to reflect prior custody and time on conditional liberty.

Legislation and Cases Referenced

Legislation
- Criminal Appeal Act 1912 (NSW), ss 5D, 12
- Crimes Act 1900 (NSW), ss 176A, 178BB
- Evidence Act 1995 (NSW), s 144
- Sentencing Act 1989 (NSW), s 5(2)

Cases
- R v Giam [1999] NSWCCA 53
- Pearce v The Queen (1998) 194 CLR 610
- R v Thomas [1999] NSWCCA 168
- Ryan v The Queen (1982) 149 CLR 1
- R v Tolmie (1994) 72 A Crim R 416
- Gallagher v The Queen (1986) 160 CLR 392
- Mickelberg v The Queen (1989) 167 CLR 259
- R v Henry [1999] NSWCCA 111, 46 NSWLR 346
- R v Holder and Johnston [1983] 3 NSWLR 245
- R v Gordon (1994) 71 A Crim R 459
- R v Glenister [1980] 2 NSWLR 597
- R v Pantano [1990] 49 A Crim R 328
- R v J (1992) 64 A Crim R 441
- Re Beldan; ex parte the Attorney-General (1986) 21 A Crim R 159
- R v Niass (CCA, 16 November 1988)
- R v Webster-Jones (CCA, 11 May 1992)