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Court of Criminal Appeal 10 July 2000

Regina v Carver

[2000] NSWCCA 321

Fraud & dishonesty

Citation: Regina v Carver [2000] NSWCCA 321
Court: New South Wales Court of Criminal Appeal
Date: 10 July 2000
Judge(s): Studdert J; Bell J

Background

The applicant was a repeat offender convicted of multiple fraud-related offences in both Victoria and New South Wales. The Victorian offences, involving dishonestly obtaining large sums from the Bank of Melbourne and obtaining share certificates by deception, resulted in a sentence of five and a half years imprisonment with a four-year non-parole period imposed by the Victorian courts. Following his release from the Victorian non-parole period, the applicant was extradited to New South Wales on 16 April 1997.

In New South Wales, the applicant faced three separate indictments arising from distinct fraudulent schemes. The first (the "Hilton indictment") related to offences in July 1988 involving deceptions connected to a hotel purchase and the diversion of company funds. The second (the "Wenkart indictment") concerned an elaborate attempt between May and June 1992 to obtain the proceeds of a deceased estate to which the applicant had no entitlement. The third, an ex officio indictment, related to the applicant impersonating a shareholder to divert share ownership in late 1992.

The District Court sentenced the applicant on 8 December 1999. The applicant sought leave to appeal on the grounds that the sentencing judge had failed to give sufficient weight to the totality principle, given the extensive Victorian custody, and had failed to give credit for a period of pre-sentence custody served prior to extradition.

  • Whether the sentencing judge gave sufficient weight to the totality principle when fixing sentences, having regard to the lengthy period of Victorian custody already served
  • Whether the sentencing judge gave appropriate credit for the period of pre-sentence custody (approximately four months served prior to extradition in connection with the New South Wales matters)

Decision

The Court of Criminal Appeal examined the totality principle, which requires a sentencing court to consider the cumulative effect of all sentences and ensure the overall punishment is proportionate to the total criminality involved. The Court acknowledged that the applicant had already served a substantial period of custody in Victoria and that this was a factor the sentencing judge was required to weigh carefully when imposing New South Wales sentences.

On the totality challenge, the Court found no sufficient basis to interfere with the sentences solely on that ground, given the seriousness and number of the New South Wales offences.

However, the Court found the pre-sentence custody issue to be decisive. Bell J noted that the transcript of the sentencing proceedings revealed an exchange in which the judge's response ("What was that in relation to?") was open to the interpretation that the period of pre-sentence custody had not been adequately considered. Her Honour concluded that the sentencing judge's attention may not have been properly directed to this period, and that the applicant was entitled to credit for it. Studdert J agreed with Bell J's reasons and the proposed orders.

Orders Made

  • Leave to appeal granted in respect of the sentence on count 2 of the Hilton indictment; appeal allowed; sentence quashed and replaced with a term of three years imprisonment commencing 16 April 1997 and expiring 15 April 2000; no non-parole period set for this sentence
  • Leave to appeal granted in respect of the Wenkart indictment; appeal allowed; sentence quashed and replaced with a term of two years and eight months commencing 16 April 2000 and expiring 15 December 2002; non-parole period of eight months specified
  • First eligible date for release on parole fixed at 16 December 2000

Key Takeaways

  • A sentencing court must give clear and demonstrable credit for any period of pre-sentence custody; a failure to do so, even in a complex sentencing exercise, constitutes a basis for appellate intervention.
  • The totality principle requires consideration of the cumulative effect of multiple sentences, including time already served in another jurisdiction, though this alone did not ground appellate relief on the facts here.
  • Where the sentencing transcript is ambiguous as to whether a relevant consideration (such as pre-sentence custody) was actually taken into account, the Court of Criminal Appeal may treat that ambiguity as sufficient to allow the appeal and re-sentence.
  • In dismissing the broader totality challenge, the Court signalled that serious and numerous fraud offences justify significant cumulative sentences even where the offender has already served a lengthy custodial term in another jurisdiction.
  • The Court of Criminal Appeal confirmed it will examine transcript exchanges at the sentencing hearing to assess whether a judge was properly directed to all relevant sentencing factors.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 176A, 178BA, 184A, 344

Cases:
- Postiglione v The Queen (1997) 189 CLR 295; 94 A Crim R 397
- Regina v Todd [1982] 2 NSWLR 517
- Regina v Mill (1988) 63 ALJR 117
- Deeble (unreported, NSW Court of Criminal Appeal, 19 September 1991)