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Court of Criminal Appeal 2 December 2002

REGINA v Adam Eli MEYER

[2002] NSWCCA 451

Also reported as (2002) 135 A Crim R 438
Fraud & dishonesty

Citation: [2002] NSWCCA 451; (2002) 135 A Crim R 438
Court: NSW Court of Criminal Appeal
Date: 2 December 2002
Judge(s): Wood CJ at CL, Dowd J, Bell J

Background

The applicant, a 28-year-old finance broker with no prior criminal history, pleaded guilty to six offences under the Crimes Act 1900: three counts of making a false instrument and three counts of using a false instrument, each with intent to induce another to accept it as genuine. The maximum penalty for each offence was ten years imprisonment.

The offences arose from a series of fraudulent loan transactions in late 1999 and early 2000. The applicant had acted on instructions from a third party to endorse and deposit cheques totalling approximately $906,040 into a bank account controlled by others. The funds were subsequently transferred offshore and never used for the stated purpose of purchasing sawmilling equipment. The applicant received commissions of approximately $36,237, which he repaid in full.

The Sydney District Court sentenced the applicant to three years imprisonment by way of periodic detention on each count, with sentences to commence on 25 May 2002. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentences imposed in the District Court were manifestly excessive in all the circumstances
  • Whether the sentencing judge gave adequate weight to the applicant's subjective circumstances, including his early plea of guilty, cooperation with authorities, prior good character, and full repayment of commissions received
  • Whether periodic detention was an appropriate mode of service, and whether the alternative dispositions of home detention or a suspended sentence were available
  • Whether special circumstances existed to justify a departure from the standard statutory non-parole period ratio

Decision

Bell J (with Wood CJ at CL and Dowd J agreeing) found that the sentences of three years imprisonment were manifestly excessive given the totality of the applicant's subjective circumstances. While the objective seriousness of the offences was acknowledged, particularly the scale of the fraud and the applicant's personal participation in endorsing and depositing the cheques, the sentencing judge was found not to have given sufficient weight to the mitigating factors.

Those mitigating factors included the applicant's early pleas of guilty, his cooperation with authorities and undertaking to give evidence in future proceedings, his prior good character supported by testimonials, his full repayment of the commissions received, and the circumstance that he did not personally benefit from the bulk of the fraud proceeds. The Court reduced the sentence on each count to one year and six months imprisonment with a non-parole period of one year, one month and two weeks.

Bell J rejected the existence of special circumstances sufficient to warrant a departure from the statutory formula for the non-parole period. However, the Court accepted the concession by the applicant's counsel that periodic detention, rather than home detention or a suspended sentence, was the appropriate mode of service. This reflected the objective seriousness of the offences while still acknowledging the applicant's favourable subjective profile.

Orders Made

  • Leave to appeal against the severity of the sentences granted
  • Appeal allowed
  • Sentences imposed in the District Court quashed
  • In substitution, the applicant was sentenced on each count to one year and six months imprisonment with a non-parole period of one year, one month and two weeks
  • Each sentence to be served by way of periodic detention, commencing 25 May 2002
  • First eligible date for consideration for release to parole: 9 July 2003, subject to any extension under the Crimes (Administration of Sentences) Act 1999

Key Takeaways

  • The Court of Criminal Appeal confirmed that early pleas of guilty, cooperation with authorities, genuine remorse, and full repayment of benefits received are significant mitigating factors capable of reducing what would otherwise be a substantial sentence for serious fraud offences.
  • A sentence of three years periodic detention for six counts of false instrument offences involving approximately $906,040 in fraudulent transactions was found to be manifestly excessive where the applicant had not retained the fraud proceeds and had repaid his commissions.
  • Under the sentencing framework applicable at the time, periodic detention was treated as an appropriate alternative to full-time custody where objective seriousness precluded suspension or home detention, but the offender's subjective circumstances were strongly favourable.
  • No special circumstances were established merely by the combination of first-time imprisonment and other favourable subjective factors; something more is required to depart from the statutory non-parole period formula.
  • In assessing the appropriate mode of service of a sentence of imprisonment, the Court applied the same range of considerations relevant to fixing the term of the sentence itself, consistent with the approach in Dinsdale v The Queen and subsequent CCA authorities.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 300(2)
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 6, 7, 12
- Justices Act 1902 (NSW), s 51A

Cases:
- Dinsdale v The Queen (2000) 202 CLR 321
- Regina v Foster [2001] NSWCCA 215
- R v Gallagher (1991) 23 NSWLR 220
- R v JCE [2000] NSWCCA 498; 120 A Crim R 18
- R v Parsons & Poore [2002] NSWCCA 296
- R v Simpson (2001) 53 NSWLR 704
- R v Wegener [1999] NSWCCA 405
- R v Zamagias [2002] NSWCCA 17