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14
Court of Criminal Appeal 1 November 2002

R v Carr

[2002] NSWCCA 434

Also reported as (2002) 135 A Crim R 171
Fraud & dishonesty
CRIMINAL PRACTICE AND PROCEDURE CROWN APPEAL APPLICATION OF PEARCE V THE QUEEN SERIOUSNESS OF FRAUD BY SOLICITORS

Citation: R v Carr [2002] NSWCCA 434
Court: NSW Court of Criminal Appeal
Date: 1 November 2002
Judge(s): Levine J, Hidden J, Howie J

Background

The respondent was a solicitor who pleaded guilty to two fraud offences. The first involved defrauding a company of which he was a director, over a period of approximately three years, resulting in unauthorised payments to himself totalling around $321,666. The second involved a separate fraudulent misappropriation from a different company. Both offences represented serious breaches of trust by a person in a professional position.

The District Court sentenced the respondent to four years imprisonment with a two-year non-parole period for the first offence, and a concurrent fixed term of two years for the second offence. The concurrent sentences meant the respondent would be eligible for parole after two years regardless of the second offence.

The Director of Public Prosecutions appealed, arguing the sentences were manifestly inadequate, principally because the second sentence was ordered to run concurrently rather than at least partly cumulatively with the first.

  • Whether the sentencing judge erred by imposing concurrent rather than cumulative sentences for two distinct fraud offences
  • Whether the overall sentence was manifestly inadequate having regard to the principle in Pearce v The Queen
  • Whether, even if error was established, the Court of Criminal Appeal should intervene to increase the sentence

Decision

The Court confirmed the framework from Pearce v The Queen, which requires a sentencing judge to fix an appropriate sentence for each offence and then separately address whether those sentences should be accumulated, in whole or in part, to reflect the totality of the criminality. Levine J emphasised that this two-step process is a fundamental principle, and that the "unity of the occasion" of sentencing one offender for multiple offences on one day should not obscure the need to apply both steps properly.

Howie J, with whom the others agreed, found that the second offence was entirely distinct from the first. It was planned, committed in breach of trust, and demonstrated that the respondent's expressions of remorse about the first offence were hollow. The imposition of a purely concurrent sentence for that second offence was an error, and the overall sentence was manifestly inadequate as a result.

Despite finding error, the Court declined to intervene. Howie J noted that, because of the principle of double jeopardy (which requires courts on Crown appeals to factor in the burden of being re-sentenced when determining any increase), any adjustment would be modest. However, even a modest increase to the non-parole period would have the practical consequence of the respondent being reclassified to maximum security. The Court treated that collateral consequence as a relevant factor on the question of whether to re-sentence, and resolved the doubt in the respondent's favour.

Howie J was explicit that this outcome should not be taken as a precedent justifying lenient sentences for similar conduct. He described the respondent and those committing like offences in positions of trust as "criminals richly deserving of punishment in prison."

Orders Made

  • The Crown appeal is dismissed.

Key Takeaways

  • Pearce v The Queen requires sentencing courts to undertake two distinct steps: fix an appropriate sentence for each offence, and then address cumulation or concurrence to reflect the totality of criminality. Treating these as one undifferentiated exercise is an error of principle.
  • Where the Crown specifically makes submissions on cumulation, the sentencing judge should address that issue expressly rather than remain silent on it.
  • Even where a sentencing error is established on a Crown appeal, the Court of Criminal Appeal retains a discretion not to intervene. Factors that would not be relevant at first instance, such as the collateral consequence of a security reclassification, may be weighed when deciding whether to re-sentence on appeal.
  • In dismissing the appeal, the Court was careful to confine its outcome to the particular circumstances, expressly warning against its use to justify leniency in other fraud sentencing decisions.
  • Fraud offences committed by solicitors and other professionals in positions of trust are treated by the Court of Criminal Appeal as serious criminal conduct warranting meaningful custodial sentences, regardless of personal standing or community profile.

Legislation and Cases Referenced

Legislation
- Justices Act 1902 (NSW), s 51A
- Crimes Act 1900 (NSW), ss 176A, 178A

Cases
- Pearce v The Queen (1998) 194 CLR 610
- R v Todd [1982] 2 NSWLR 517
- Hammoud (2000) 118 A Crim R 66
- R v Institoris [2002] NSWCCA 8
- R v AEM (Snr) [2002] NSWCCA 58
- Regina v Burke [2002] NSWCCA 353