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Court of Criminal Appeal 9 February 2004

R v WILLIAMS

[2004] NSWCCA 18

Fraud & dishonestyTheft & property

Citation: R v Williams [2004] NSWCCA 18
Court: NSW Court of Criminal Appeal
Date: 9 February 2004
Judge(s): Hulme J (primary reasons); Sully J; James J

Background

The appellant was sentenced in the District Court by Karpin DCJ on 11 December 2003 following his involvement in a series of dishonesty offences committed over approximately two months in mid-2001. The offences spanned two indictments and included theft from motor vehicles, handling stolen property, and obtaining goods by deception using a fraudulent credit card. The total value of property involved was approximately $19,200.

Karpin DCJ imposed full-time custodial sentences of 12 to 18 months (with non-parole periods of 8 months) for most counts, and a 3-year good behaviour bond for one count. The appellant was 42 years old at the time of sentencing and had no prior criminal record.

The appellant sought leave to appeal against those sentences, arguing that her Honour fell into error on several grounds in the sentencing process.

The Court of Criminal Appeal was asked to consider:

  • Whether the sentencing judge erred in characterising the offences as involving a "breach of trust" or exploitation of "vulnerability," and whether she had wrongly applied aggravating factors under s 21A of the Crimes (Sentencing Procedure) Act
  • Whether the sentencing judge failed to adequately reason why alternatives to full-time imprisonment were rejected, as required by s 5 of the Crimes (Sentencing Procedure) Act
  • Whether the sentencing judge gave insufficient weight to the passage of more than two years between arrest and sentence, during which no further adverse conduct had emerged
  • Whether the sentences imposed were, considered as a whole, outside the acceptable range of the sentencing discretion, particularly given the appellant's otherwise blameless record

Decision

On the first ground, the Court acknowledged that the passages in the sentencing remarks referring to "breach of trust" and "exploitation of vulnerability" might better have been omitted. However, the Court was satisfied that, when the remarks were read in their totality, her Honour had a correct and clear understanding of the nature of the conduct before her. No error in her characterisation of objective criminality was established.

On the second ground, the Court noted that Karpin DCJ had imposed a good behaviour bond for one count and had imposed non-custodial sentences on co-offenders in the same proceedings. This demonstrated that her Honour was fully aware of the sentencing options available. Although her Honour did not explicitly articulate why she rejected alternatives to full-time custody for the appellant, the Court found this omission was not indicative of error in the particular circumstances.

Regarding the delay between charge and sentence, the Court accepted that the passage of time and the anxiety associated with a prolonged fear of imprisonment carried some mitigating weight, though not great weight. The Court noted that her Honour had specifically acknowledged the lengthy period since the appellant first indicated a desire to plead guilty.

On the question of whether the sentences were within range, the Court accepted that the appellant's lack of any prior criminal record was a highly relevant factor that would ordinarily weigh significantly in favour of a non-custodial outcome. Ultimately, however, the Court concluded the sentences were within her Honour's discretion. The decisive factor was the sustained and deliberate nature of the offending across multiple occasions over approximately two months, motivated purely by personal gain, and not committed out of immediate need or as an isolated lapse.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • An absence of prior criminal record does not automatically preclude full-time custody, even for a first-time offender. The Court of Criminal Appeal confirmed that sustained, deliberate, and repeated dishonesty over a substantial period can displace what might otherwise be a strong case for a non-custodial sentence.
  • Imprecise or arguably inapt language in sentencing remarks will not constitute appealable error where the remarks, read in their totality, demonstrate a correct understanding of the offending conduct.
  • Under s 5 of the Crimes (Sentencing Procedure) Act, a sentencing court is not required to expressly articulate its rejection of every alternative to imprisonment in every case, provided the circumstances make clear the court was aware of those options.
  • The mitigating effect of delay between charge and sentence, including the emotional burden of prolonged uncertainty about custody, carries some weight but will not necessarily be determinative, particularly where the underlying criminality is serious.
  • In dismissing the appeal, the Court reiterated that it will not intervene in a sentencing discretion simply to substitute its own view: absent patent error in the process, intervention requires demonstration that the sentence itself falls outside an acceptable range.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5(1) (requirement to consider alternatives to imprisonment); s 21A(2)(k) and (l) (aggravating factors: abuse of trust, and victim vulnerability)

Cases: No cases were cited in the portion of the judgment provided.