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Court of Criminal Appeal 30 July 2004

R v Sam Hill

[2004] NSWCCA 257

Fraud & dishonesty
SENTENCING OFFENCES OF OBTAIN BENEFIT BY DECEPTION "SPECIAL CIRCUMSTANCES" PRINCIPLE OF TOTALITY.

Citation: R v Sam Hill [2004] NSWCCA 257
Court: New South Wales Court of Criminal Appeal
Date: 30 July 2004
Judge(s): Spigelman CJ, Hidden J, Buddin J

Background

The applicant pleaded guilty in the District Court to two counts of obtaining a benefit by deception, with three further similar offences and a possession of a prohibited weapon offence taken into account on a Form 1. The fraud involved falsely representing connections to the Saudi royal family to obtain insurance premiums from victims who were promised access to large loan funds. In total, nearly $740,000 was dishonestly obtained across a course of conduct spanning approximately two years, from February 1999 to December 2000.

The victims included financially sophisticated parties as well as at least one vulnerable individual, an invalid pensioner who had sold his home and handed over the bulk of the proceeds, suffering a loss of approximately $120,000. The applicant created an elaborate false impression of wealth, using expensive cars, a rented office, and forged bank documents to lend credibility to the scheme.

The sentencing judge in the District Court imposed a total effective term of five years and four months, with a non-parole period of four years and six months. The applicant sought leave to appeal against that sentence.

  • Whether the sentencing judge erred in failing to find "special circumstances" justifying a longer-than-standard ratio of parole supervision to non-parole period
  • Whether the principle of totality required a greater degree of concurrency between the two sentences
  • Whether the accumulation of the second sentence involved impermissible double punishment due to alleged common elements between the offences

Decision

The Court granted leave to appeal and allowed the appeal in part, but only on a discrete and largely technical ground. The commencement dates for both sentences were adjusted to correctly account for 70 days the applicant had spent in pre-sentence custody, which the original orders had not properly reflected. This adjustment affected both the head sentences and non-parole periods for each count.

On special circumstances, the Court accepted that the structure of the sentences, specifically the fact that one sentence flowed directly into the next, did justify a finding of special circumstances. The extended period of supervision required across consecutive sentences warranted a reduction in the non-parole period for count 2. A non-parole period of two years was substituted for the original period in respect of that count.

The Court rejected the totality ground. Given the objective gravity of the offending and the applicant's prior criminal history, which included multiple offences of dishonesty, the degree of accumulation imposed by the sentencing judge did not constitute error. The Court drew on the principle that separate offences committed against different victims over a lengthy period, even if of a similar character and part of an ongoing fraud, appropriately attract accumulation rather than full concurrency.

The double punishment argument was also rejected. The two counts did not share common elements in the legal sense recognised in Pearce v The Queen, and no error in that respect was established.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal allowed in part
  • Count 1: appeal dismissed; head sentence and non-parole period each to commence 13 March 2003; head sentence to expire 12 November 2005; non-parole period to expire 12 March 2005
  • Count 2: appeal against head sentence dismissed; appeal against non-parole period allowed; non-parole period of 2 years substituted; head sentence and non-parole period each to commence 13 March 2005; head sentence to expire 12 July 2008; non-parole period to expire 12 March 2007

Key Takeaways

  • Where consecutive sentences result in a substantially extended total period of custody and supervision, this can constitute special circumstances justifying an adjustment to the non-parole period ratio under the Crimes (Sentencing Procedure) Act 1999.
  • Accumulation of sentences for fraud offences committed against different victims over a lengthy period does not, of itself, breach the principle of totality, particularly where the objective gravity of the conduct and the offender's criminal history are significant.
  • The prohibition on double punishment established in Pearce v The Queen applies where counts share common elements in the strict legal sense; the mere similarity of offences forming part of an ongoing scheme does not engage that principle.
  • Pre-sentence custody must be correctly reflected in the commencement dates of both head sentences and non-parole periods, and a failure to do so constitutes an error the Court of Criminal Appeal will correct.
  • In fraud sentencing, the total amount obtained, the duration of the scheme, the degree of planning, and the vulnerability of victims are all relevant aggravating considerations in assessing objective criminality.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases
- Cameron v The Queen (2002) 209 CLR 339
- Pearce v The Queen (1998) 194 CLR 610
- Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) (2002) 56 NSWLR 146
- R v Fidow [2004] NSWCCA 172
- R v Johnson (2004) 205 ALR 346
- R v McKechnie NSWCCA, unreported, 1 October 1987
- R v Mears NSWCCA, unreported, 14 March 1991
- R v Simpson (2001) 53 NSWLR 704
- R v Weldon and Carberry (2002) 136 A Crim R 55