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Court of Criminal Appeal 29 November 2002

REGINA v S J H

[2002] NSWCCA 532

Fraud & dishonesty
CRIMINAL LAW SENTENCE CROWN APPEAL AGAINST INADEQUACY FAILURE TO CONSIDER PRIOR CONVICTION MANIFESTLY INADEQUATE SENTENCE WHERE PRIOR OFFENCE UNRELATED

Citation: REGINA v S J H [2002] NSWCCA 532
Court: NSW Court of Criminal Appeal
Date: 29 November 2002
Judge(s): Spigelman CJ, Sully J, James J

Background

The respondent, a former NSW Police officer who had previously worked in undercover drug operations, pleaded guilty to two counts of using a false instrument and four counts of obtaining a financial advantage by deception. The offences involved the fraudulent diversion of cheques totalling over $600,000 drawn on a major oil company's bank account into a fictitious account the respondent had established under an alias. Two further possession offences were taken into account.

The District Court sentenced the respondent to two years' imprisonment with a twelve-month non-parole period on the false instrument counts, and eighteen months with a nine-month non-parole period on each deception count, all running concurrently. The sentencing judge accepted, with some reluctance, that the respondent received no personal financial benefit and found strong prospects of rehabilitation. He noted the respondent had acted partly out of fear of a co-offender, though he did not fully accept a duress-type explanation.

The Crown appealed to the Court of Criminal Appeal, arguing the sentences were manifestly inadequate. The respondent had a prior conviction and had committed the subject offences while on a three-year good behaviour bond.

  • Whether the sentencing judge failed to give adequate weight to the respondent's prior conviction.
  • Whether the sentencing judge failed to take into account that the offences were committed while the respondent was on a good behaviour bond (conditional liberty).
  • Whether the sentences were manifestly inadequate, given the seriousness and scale of the fraud and the concurrent structure of the sentences.

Decision

On the first ground, the Court of Criminal Appeal found it may have been open to give minimal weight to the prior conviction, given it involved a markedly different type of offence. The sentencing judge's remark that he would "for all practical purposes ignore" the prior conviction was acknowledged as problematic in isolation, but the Court found the judge could not properly ignore the fact that the offences were committed during a period of conditional liberty.

However, the Court was satisfied the sentencing judge did in fact have the bond issue in mind when imposing sentence. The Crown had specifically raised the point during the hearing, and the judge expressly acknowledged it immediately before pronouncing sentence. On that basis, the Court rejected the Crown's submission that this factor was overlooked.

On the question of manifest inadequacy, Spigelman CJ accepted the offences were serious, involved substantial planning and organisation, and that the respondent played a critical role. Nevertheless, the Court found that powerful subjective factors were available to the sentencing judge: the respondent's genuine remorse, his early guilty plea, his prior community service as a police officer (despite an inglorious departure from the force), the risk he faced in custody as a former officer, the finding that he received no material benefit, and his strong rehabilitation prospects.

The Court concluded that while the sentences sat at the very bottom of the permissible range, they remained within that range. A Crown appeal against sentence does not succeed merely because the appellate court might have imposed a heavier sentence; the question is whether the sentence falls outside the range of permissible discretion. The appeal was dismissed unanimously.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • In dismissing the Crown appeal, the Court of Criminal Appeal confirmed that a sentence will not be disturbed on appeal simply because it is at the lowest end of the permissible range; it must fall outside that range entirely.
  • A sentencing court may give reduced weight to a prior conviction that is of a materially different character to the offences being sentenced, but it cannot wholly ignore the fact that offences were committed during a period of conditional liberty such as a good behaviour bond.
  • Where a sentencing judge expressly acknowledges a factor raised by the Crown immediately before pronouncing sentence, an appellate court is unlikely to accept that the factor was overlooked or disregarded.
  • Significant subjective factors, including genuine remorse, an early guilty plea, no personal financial benefit from serious fraud, and strong rehabilitation prospects, can collectively justify a sentence at the lower boundary of the available range even for offences involving large sums and substantial planning.
  • Prior service as a police officer may be treated as a relevant subjective consideration in sentencing, even where the offender's departure from the force was not honourable.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D (Crown appeal against inadequacy of sentence)
- Crimes Act 1900 (NSW), s 300(2) (using a false instrument)
- Crimes Act 1900 (NSW), s 178BA (obtaining financial advantage by deception)

Cases cited: No specific cases were cited in the judgment.