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Court of Criminal Appeal 26 November 2002

REGINA v Milagnitos MONTESINOS

[2002] NSWCCA 470

Also reported as (2002) 135 A Crim R 417
Fraud & dishonesty

Citation: Regina v Montesinos [2002] NSWCCA 470
Court: NSW Court of Criminal Appeal
Date: 26 November 2002
Judge(s): Mason P, Sperling J, Bell J

Background

The respondent, a 35-year-old office worker with no prior criminal history, was employed by a small family carpet importing business in late 1999. Between January and June 2000, she deposited fifteen cheques drawn on her employer's account into her own bank accounts, obtaining a total of $119,643.13. Some cheques had been pre-signed in blank by directors travelling overseas; others appeared to carry forged signatures.

A jury convicted the respondent on all fifteen counts of using a false instrument under s 300 of the Crimes Act 1900, an offence carrying a maximum of ten years imprisonment. At sentencing in the District Court at Penrith, the judge found that she had manipulated computer records to conceal the fraud and had spent the proceeds on frivolous purchases despite having no apparent financial need.

The sentencing judge imposed concurrent terms of imprisonment ranging from one month to twenty-four months on each count, but suspended all sentences under s 12 of the Crimes (Sentencing Procedure) Act 1999. The longer bonds included conditions requiring supervision by the Probation and Parole Service and treatment for clinical depression. The Director of Public Prosecutions appealed to the Court of Criminal Appeal, contending the sentences were manifestly inadequate.

  • Whether the total effective sentence of two years imprisonment, with execution wholly suspended, fell outside the range of a sound sentencing discretion for this scale of fraud
  • Whether the sentencing judge erred by giving too great an allowance for the respondent's mental health condition in reducing the weight given to general deterrence
  • Whether the Crown established sufficient error to warrant appellate intervention in a Crown appeal

Decision

The Court of Criminal Appeal acknowledged that the pattern of sentences in comparable fraud cases supported a view that the sentences were markedly lenient, and that full-time custody would ordinarily be expected for a fraud of this size committed over an extended period. The Crown conceded that a total effective sentence of two years fell within the range, albeit at the lower end.

However, the Court held that sentencing is a discretionary exercise and that there was evidence before the sentencing judge of the respondent's significant history of depression, including a disabling episode in 1999 shortly before the offending began. It was open to the judge to reduce the weight given to deterrence in those circumstances. The question of exactly how much weight to give that consideration was described as a sensitive discretionary determination on which reasonable minds could differ.

The Court applied established principles governing Crown appeals, noting that successful Crown appeals should be rare and that the Crown bears the burden of demonstrating error very clearly, particularly where no identifiable error in the sentencing process is alleged and the Crown relies solely on manifest inadequacy. The Court found the Crown had not established that the sentences were so manifestly unreasonable or plainly wrong as to warrant intervention.

Orders Made

  • Appeal dismissed

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that successful Crown appeals against sentence should be rare, and even rarer where no specific error in the sentencing process is identified and the Crown relies solely on manifest inadequacy.
  • A sentencing court's decision to give reduced weight to general deterrence because of an offender's mental health condition is a sensitive discretionary determination, and an appellate court will not substitute its own view merely because it might have weighed those factors differently.
  • Where the Crown concedes the sentence fell within the range (even if at the lower end), it faces a particularly high threshold to demonstrate that a further exercise of discretion, such as suspending execution, renders the overall outcome manifestly inadequate.
  • Under the approach confirmed in cases such as Dinsdale v The Queen, the Crown must demonstrate very clearly the error it alleges before a Court of Criminal Appeal will interfere with a sentencing discretion.
  • Prior good character, a documented history of significant clinical depression at the time of offending, and the absence of financial need were treated as factors capable of supporting departure from the usual sentencing range for serious fraud, without those factors constituting error of principle.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 300 (using a false instrument)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 12 (suspended sentences)
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeals against leniency)
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 29

Cases Cited
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Baker [2000] NSWCCA 85
- Regina v Israil [2002] NSWCCA 255
- Regina v Zamagias [2002] NSWCCA 17
- R v Sivyer [2002] NSWCCA 410
- R v Engert (1995) 84 A Crim R 67
- R v Anderson [1981] VR 155
- R v Giarratano [2000] NSWCCA 418
- R v Fisher [2001] NSWCCA 143
- R v J C E [2000] NSWCCA 498; 120 A Crim R 18
- R v Scognamiglio (1991) 56 A Crim R 81
- R v O'Keefe (1992) 60 A Crim R 201
- R v Letteri (unreported) NSWCCA, 18 March 1993
- R v Brillo (unreported) NSWCCA, 14 May 1997
- R v Duroux (unreported) NSWCCA, 11 April 1991
- R v El-Rashid (unreported) NSWCCA, 7 April 1995
- R v Pangello (unreported) NSWCCA, 20 February 1992
- R v Spiridonov (unreported) NSWCCA, 1 May 1998