Citation: R v Fraser [2000] NSWCCA 97
Court: NSW Court of Criminal Appeal
Date: 24 March 2000
Judge(s): Abadee J; James J
Background
The applicant, a man in his thirties, pleaded guilty in the District Court to 25 offences: 22 counts of obtaining property by deception (under s 178BA of the Crimes Act), one count of stealing, and two counts involving the making and use of a false instrument (under s 300 of the Crimes Act). The deception offences involved the applicant tendering valueless cheques to merchants over two separate periods in 1996 and 1997, resulting in a net loss to victims of approximately $94,826. The stealing offence related to the theft of 1,640 pairs of shoes with a wholesale value of $73,800, most of which were recovered.
The sentencing judge in the District Court imposed a total effective sentence of three years minimum and two years additional term, after starting from a notional seven-year total and applying a significant discount for cooperation with authorities in the prosecution of another offender. The applicant sought leave to appeal, contending the seven-year starting point was manifestly excessive.
Legal Issues
- Whether the sentencing judge's starting point of seven years, before any discount for assistance, was manifestly excessive having regard to the objective facts and subjective circumstances.
- Whether the overall total sentence required re-sentencing by the Court of Criminal Appeal.
- Whether, in re-sentencing across 25 concurrent offences, the Court was required by Pearce v The Queen to impose separate sentences with separate commencement dates for each offence.
Decision
The Court of Criminal Appeal accepted the applicant's central submission. Having regard to the objective facts of the offending (which was unsophisticated, involved no breach of trust, and was driven by a gambling addiction rather than greed), the subjective circumstances (no prior dishonesty convictions, early guilty plea, remorse, cooperation with authorities, and demonstrated rehabilitation), and the pattern of comparable sentencing decisions referred to by counsel, the Court found the seven-year starting point was manifestly excessive. Leave to appeal was granted and the original sentences were quashed.
The Court then re-sentenced the applicant. It fixed an appropriate starting point of five years, applied a discount of approximately 30 per cent for assistance to authorities (broadly consistent with the percentage adopted by the sentencing judge), and arrived at an overall total sentence of three and a half years. Special circumstances were found, as the sentencing judge had also found, grounded in the applicant's strong rehabilitation prospects.
On the question of sentencing mechanics, the Court declined to impose 25 separate sentences with separate commencement dates, as might otherwise be suggested by the High Court's decision in Pearce v The Queen. James J observed that such a requirement is not mandatory where all sentences are to be served concurrently and the total effective sentence is a modest three and a half years across 25 offences.
A request by the applicant's counsel to suppress the applicant's name on account of the assistance he had provided was refused. The Court noted that the fact of the assistance was already in the public domain and had been a known factor in the sentencing judge's original remarks.
Orders Made
- Leave to appeal granted.
- Appeal against sentence allowed.
- Sentences imposed on 2 March 1999 quashed.
- On each of the 25 charges, a sentence of imprisonment or penal servitude of three and a half years imposed, comprising a minimum term of two years and three months commencing 2 March 1999 and expiring 1 June 2001, and an additional term of one year and three months.
- All sentences to be served concurrently.
- Earliest date eligible for release on parole: 2 June 2001.
Key Takeaways
- A seven-year starting point for serial cheque fraud offences was found to be manifestly excessive where the offending was unsophisticated, involved no breach of a position of trust, was attributable to gambling addiction, and was committed by a first-time offender who pleaded guilty and cooperated with authorities.
- A 30 per cent discount for assistance to authorities in the prosecution of another offender was treated as broadly appropriate and consistent across both the original and appellate sentences.
- Where all sentences are to be served concurrently and the total effective term is modest, the Court of Criminal Appeal held it was not required by Pearce v The Queen to impose discrete sentences with separate commencement dates for each of 25 offences.
- Subjective factors including rehabilitation efforts, remorse, the absence of prior dishonesty offences, and the role of gambling addiction in motivating the offending all contributed materially to the Court's assessment of the appropriate sentence.
- A name suppression application was refused where the fact of the applicant's cooperation was already in the public domain and had been acknowledged openly in the original sentencing remarks.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 117 (stealing); s 178BA (obtaining property by deception); s 300 (making and using a false instrument)
Cases:
- Pearce v The Queen (High Court)
- R v Doherty (unreported, CCA, 5 November 1991)
- R v O'Keefe (unreported, CCA, 11 June 1992)
- R v De Silva (unreported, CCA, 14 December 1993)
- R v Cardwell & Butcher (unreported, CCA, 6 July 1994)
- R v Santos (unreported, CCA, 28 June 1995)
- R v Vickers & Fearon (unreported, CCA, 17 October 1996)
- R v Cofini (unreported, CCA, 4 March 1997)
- R v Jarjoura (unreported, CCA, 9 April 1997)
- R v Crowl (unreported, CCA, 10 July 1997)
- R v West (unreported, CCA, 11 November 1997)
- R v Francipane (unreported, CCA, 23 December 1998)
- R v Ramirez (unreported, CCA, 8 March 1999)