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Court of Criminal Appeal 31 July 2003

R v WEIR

[2003] NSWCCA 204

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE FRAUDULENT MISAPPROPRIATION WHERE APPLICANT PLEADED GUILTY

Citation: R v Weir [2003] NSWCCA 204
Court: NSW Court of Criminal Appeal
Date: 31 July 2003
Judges: Sheller JA; James J; O'Keefe J

Background

The applicant pleaded guilty in the Local Court to six charges: four of fraudulent misappropriation, one of using a false instrument, and one of passing a valueless cheque. The offences were committed over several years and involved multiple victims, with the applicant systematically misappropriating funds entrusted to her in a professional financial capacity. A number of further offences were taken into account on Form 1 documents at sentencing.

The District Court sentenced the applicant to a total effective sentence of seven years imprisonment with a non-parole period of four years. The sentencing judge found the total loss to the victims exceeded $1 million, took into account the applicant's criminal record for dishonesty, and noted that some offences were committed while the applicant was subject to a community service order and while on bail for other charges.

On appeal to the Court of Criminal Appeal, the applicant challenged the severity of the sentence on two grounds relating to alleged errors in the sentencing judge's assessment of victim losses.

  • Whether the sentencing judge erred by overstating the net loss to the victims at over $1 million, when the applicant contended the correct figure was just over $823,000.
  • Whether the sentencing judge erred by failing to account for the possibility that one victim, who held a caveat over the applicant's home, might recover some of his losses upon a future sale of that property.
  • Whether those alleged errors, individually or together, warranted the Court of Criminal Appeal substituting a lesser sentence.

Decision

The Court of Criminal Appeal, with Sheller JA delivering the principal judgment and James and O'Keefe JJ agreeing, granted leave to appeal but dismissed the appeal.

On the question of the disputed loss figure, the court found that even if the sentencing judge had overstated the total amount, the error did not produce any miscarriage of the sentencing discretion. Whether the victims' losses totalled just over $800,000 or just over $1 million, the losses were substantial in either case. The asserted error did not undermine the soundness of the overall sentence.

On the caveat point, the court held that the applicant had not placed the potential further repayment before the sentencing judge in proper and exact terms. The court observed that a party seeking to rely on such a contingency must present it with precision at the sentencing hearing, and the applicant had not done so.

More broadly, the court applied the principle from R v Simpson that the statutory trigger for quashing a sentence requires the appellate court to form a positive opinion that some other sentence was warranted in law and should have been passed. The court was not so persuaded. The offences were numerous, systematic, committed over a prolonged period by a professional person, and aggravated by the applicant's prior dishonesty record and the fact that some offences occurred while she was on conditional liberty.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal must form a positive opinion that some other sentence was warranted in law and should have been passed before it can quash and substitute a sentence; mere identification of error in the sentencing process is insufficient.
  • Where a disputed loss figure does not alter the fundamental character of the harm as substantial, an overstatement in the sentencing judge's calculation will not necessarily constitute a miscarriage of the sentencing discretion.
  • A party who wishes to rely on a contingency that may reduce a victim's net loss (such as a possible future recovery through a caveat) must place that matter before the sentencing court in proper and exact terms; failure to do so will ordinarily preclude reliance on it in an appeal.
  • Aggravating circumstances, including offending while subject to conditional liberty and while on bail, a prior dishonesty record, and the systematic professional nature of the fraud, can weigh heavily against appellate intervention even where discrete factual errors in sentencing are arguable.
  • In dismissing the appeal, the court confirmed that a seven-year total sentence with a four-year non-parole period was within the available range for a prolonged, systematic fraud involving hundreds of thousands of dollars in victim losses.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178A, 178B, 299, 300
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- R v Simpson (2001) 53 NSWLR 704
- House v The King (1936) 55 CLR 499
- AB v The Queen (1999) 198 CLR 111
- Phelan (1993) 66 A Crim R 446
- R v Burke [2002] NSWCCA 353
- R v Cappadona (2001) 122 A Crim R 52
- R v Power [2002] NSWCCA 244
- R v McDonald (1994) 71 A Crim R 370
- R v Pantano (1990) 49 A Crim R 328
- Readman (1990) 47 A Crim R 181
- R v Falzon (unreported) CCA 20 February 1992
- R v Egerton NSWCCA 8 August 1997
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2003 [2002] NSWCCA 518