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Court of Criminal Appeal 19 February 2003

REGINA v. ELACHI

[2003] NSWCCA 24

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL SENTENCE LENIENT NO BASIS TO INTERFERE.

Citation: Regina v Elachi [2003] NSWCCA 24
Court: Court of Criminal Appeal, New South Wales
Date: 19 February 2003
Judge(s): Hulme J, Greg James J, Shaw J

Background

The appellant had been sentenced in the Campbelltown District Court on three counts of obtaining financial advantage by deception and two counts of using a false instrument, together with a number of additional offences taken into account on Form Ones. The offences involved the use of false documentation to obtain loans from two financial institutions, with over $131,000 remaining unrecovered. The appellant had a substantial prior record for fraud, including convictions arising from some 74 earlier fraud-related matters.

The sentencing judge imposed an aggregate sentence of four years, reduced from a starting point of six years, representing a 33% discount. The discount acknowledged the appellant's timely pleas of guilty, subjective circumstances, and assistance provided to authorities. Given the interplay with an earlier non-parole period, the practical effect was that the appellant would serve just over 14 months in custody referable to the offences before the court.

The appellant sought leave to appeal, contending that the sentencing judge had failed to carry through into the final sentence the full credit for assistance to authorities that the judge had indicated during proceedings he was minded to give.

  • Whether the sentencing judge erred by failing to apply an adequate or properly articulated discount for the appellant's assistance to authorities (the so-called "Cartwright deduction")
  • Whether any such error rendered the resulting sentence not "warranted in law" within the meaning of section 6 of the Criminal Appeal Act 1912, thereby enlivening the Court of Criminal Appeal's jurisdiction to intervene
  • Whether section 6 operates by reference to a component of the sentencing process or to the final sentencing result as a whole

Decision

Greg James J, delivering the principal judgment, accepted that the sentencing judge's remarks during proceedings had indicated a favourable view of the assistance material, and that his final reasons did not explicitly articulate the weight ultimately given to it. However, his Honour was not persuaded that the judge had done more than consider what he indicated he would consider, and concluded that any such error did not translate into a final sentence that was disproportionate or inappropriate.

The Court found that the overall sentence of four years with a two-year non-parole period was, having regard to the offending and the appellant's record, remarkably lenient. The Court applied the principle, drawn from earlier Court of Criminal Appeal authority, that section 6 of the Criminal Appeal Act 1912 is directed at the end result of sentencing, not at any individual component or intermediate step in the sentencing process. The appellant's complaint was with one component of the reasoning, not with the final sentence, and that was not a sufficient basis to attract the appellate jurisdiction.

The Court also noted the constraint imposed by section 23(3) of the Crimes (Sentencing Procedure) Act 1999, which provides that any lesser penalty imposed to reflect assistance to authorities must not be unreasonably disproportionate to the nature and circumstances of the offence. Any further reduction here would have produced a sentence that was disproportionately lenient given the extent and seriousness of the fraud and the appellant's prior history.

Shaw J, in agreeing, affirmed the public interest underpinning the Cartwright principle, namely that offenders should be encouraged to supply information to authorities and give evidence against other offenders. However, his Honour found that the sentencing judge had applied a discount referable to that factor, and that no manifest unfairness had been demonstrated in the final outcome.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Section 6 of the Criminal Appeal Act 1912 operates by reference to the overall sentencing result, not to any individual component or intermediate step in the sentencing reasoning process. A demonstrated flaw in one part of the reasoning does not automatically enliven appellate jurisdiction if the end result remains appropriate.
  • Where an appellant's complaint is directed at a component of the sentence rather than the final outcome, the Court of Criminal Appeal will assess whether that final outcome falls outside the range of sentences warranted in law.
  • Under section 23(3) of the Crimes (Sentencing Procedure) Act 1999, a discount for assistance to authorities must not result in a sentence that is unreasonably disproportionate to the nature and circumstances of the offence. This provision operates as a constraint even where significant assistance has been rendered.
  • The Cartwright principle, affirming that it is in the public interest to encourage offenders to supply information and give evidence against other offenders, was reaffirmed by the Court. The principle does not, however, operate in isolation from the requirement that any resulting sentence remain proportionate.
  • No error was established where the sentencing judge applied an overall 33% discount that the appellate court regarded as producing a sentence that was lenient, if not unduly so, in light of the offending and the appellant's substantial prior fraud history.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23

Cases:
- Cocking [1999] NSWCCA 311
- Oastler (NSW Court of Criminal Appeal, unreported, 7 October 1992)
- The Cartwright principle (referenced throughout but decision not separately cited in provided text)