Citation: R v Tooth [2000] NSWCCA 482
Court: Court of Criminal Appeal, New South Wales
Date: 22 December 2000
Judge(s): Barr J, Carruthers AJ
Background
The applicant pleaded guilty to eight counts of obtaining a financial advantage by deception under s 178BA of the Crimes Act 1900, along with two further charges of making a false statement that had been committed to the District Court. The offences spanned two distinct sets of criminal conduct. The first set ("the Wollongong matters") involved a scheme from 1989 to 1992 in which the applicant and a business partner used inflated fictitious invoices to obtain finance for aircraft purchases, generating overpayments totalling approximately $1.6 million. The second set ("the Sydney matters") involved fraudulent bank loan applications in 1998 using false documents and inflated property valuations, causing losses to the Colonial State Bank of around $763,000.
The sentencing judge in the District Court imposed concurrent fixed terms of three years for the Wollongong matters, followed by cumulative sentences for the Sydney matters. After those sentences were imposed, the applicant sought leave to appeal on the ground that the overall sentences were manifestly excessive, primarily in connection with the treatment of his substantial assistance to police and the question of special circumstances arising from the accumulation of sentences.
The applicant had cooperated extensively with police. He participated in covert operations, carried a concealed recording device, provided information that led to 154 charges being laid against members of a broader fraud organisation, gave evidence in both New South Wales and Queensland, and had continued to assist authorities during the period of his incarceration.
Legal Issues
- Whether the sentences imposed for the Sydney matters were manifestly excessive
- Whether the sentencing judge correctly applied the discount for assistance to authorities when fixing the sentence under s 23 of the Crimes (Sentencing Procedure) Act 1999
- Whether the accumulation of the Sydney matters sentences upon the Wollongong matters sentences constituted "special circumstances" justifying a reduction in the non-parole period
- The proper analytical relationship between the discount for assistance to authorities and the finding of special circumstances when setting the non-parole period
Decision
The Court of Criminal Appeal found that intervention was warranted. The accumulation of the Sydney matters sentences upon the already substantial Wollongong sentences, when viewed without reference to any discount for assistance, made it almost irresistible to conclude that special circumstances existed within the meaning of s 44(2) of the Crimes (Sentencing Procedure) Act 1999. The court drew on R v Clarke (1995) and associated authorities in reaching this conclusion.
Carruthers AJ set out the proper analytical sequence for cases involving both a discount for assistance and special circumstances. The discount for assistance under s 23 is to be applied at the stage of fixing the overall head sentence. The question of special circumstances, by contrast, falls to be considered separately when the court sets the non-parole period. These are distinct steps and should not be conflated.
The court also took into account a fresh affidavit from a police officer, sworn shortly before the appeal hearing, attesting to assistance provided by the applicant during his time in custody. Consistent with R v Henry (1992), this further assistance was regarded as properly available for re-sentencing purposes, and in the exceptional circumstances of the case, it was reflected in the non-parole period.
The head sentences were confirmed, but the non-parole periods for both Sydney matters charges were reduced. The fixed term for the second charge was also shortened to align with the revised non-parole period on the first charge.
Orders Made
- Leave to appeal granted
- Sentences on the eight counts in the indictment and the first Form 1 confirmed
- Non-parole period on the first s 51A charge reduced to one year and six months, commencing 5 May 2003 and expiring 4 November 2004 (head sentence confirmed)
- Fixed term on the second s 51A charge varied to one year and six months, commencing 5 May 2003 and expiring 4 November 2004
- Applicant to be released to parole on 4 November 2004
Key Takeaways
- The Court of Criminal Appeal confirmed that the discount for assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 is to be assessed at the stage of fixing the overall head sentence, not when determining the non-parole period.
- Special circumstances under s 44(2) are a separate consideration, addressed when the court sets the non-parole period, and the two inquiries must be kept analytically distinct.
- Accumulation of sentences across separate matters will, in many cases, give rise to special circumstances justifying a reduction in the non-parole period, independent of any discount for assistance.
- Assistance provided to authorities after the original sentencing hearing may be placed before an appellate court on re-sentencing, provided appropriate evidence is adduced, consistent with R v Henry (1992) 28 NSWLR 348.
- Where a combination of factors including extensive cooperation with police, continued assistance during custody, and substantial accumulation of sentences is present, these may collectively justify a material reduction in the non-parole period even where the objective seriousness of the offending is significant.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Justices Act 1902 (NSW), s 51A
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 44(2)
Cases:
- R v Jalalaty (CCA, unreported, 2 April 1997)
- R v Moffitt (1990) 20 NSWLR 114
- R v Gallagher (1991) 23 NSWLR 220
- Pearce v The Queen (1998) 194 CLR 610
- R v S (2000) 111 A Crim R 225
- R v Clarke (1995) 78 A Crim R 226
- R v Henry (1992) 28 NSWLR 348