Citation: Regina v Jason Andrew Dowd [2005] NSWCCA 113
Court: New South Wales Court of Criminal Appeal
Date: 6 April 2005
Judge(s): Giles JA; Hoeben J; Johnson J
Background
The applicant was sentenced in the District Court after pleading guilty to five offences: three counts of making a false statement with intent to obtain a financial advantage (under s 178BB of the Crimes Act 1900) and two counts of using a false instrument (under s 300(2)). Six further offences were taken into account on a Form 1 (a procedural mechanism by which additional offences are acknowledged at sentencing without attracting separate penalties).
The offences fell into two distinct groups. The first group, committed in 2000, involved the theft of two parcels of shares belonging to a genuine shareholder. The applicant forged transfer documents, had the shares transferred to a fictitious identity, and sold them, netting over $330,000. The second group, committed between 2002 and 2003, involved obtaining ANZ Gold Visa credit cards by impersonating real individuals and using those cards to the financial loss of the card provider.
Ainslie Wallace DCJ sentenced the applicant to concurrent 18-month terms for the credit card offences and concurrent five-year terms (with a three-year non-parole period) for the share theft offences, partially accumulated to produce an effective total of six years imprisonment with a four-year non-parole period. The applicant sought leave to appeal, arguing the sentence was excessive.
Legal Issues
- Whether the sentencing judge gave an inadequate discount (10%) for the utilitarian value of the applicant's early guilty plea
- Whether the judge erred in the manner in which she took the Form 1 offences into account
- Whether the sentences were manifestly excessive in all the circumstances
Decision
Guilty plea discount. The Court of Criminal Appeal accepted that a 10% discount was at the low end of the range typically applied for early pleas of guilty, which the authorities suggest should ordinarily fall between 10% and 25%. However, the Court found that even applying a more generous discount of around 25%, the resulting sentences would still fall below what the offences individually warranted. The judge's overall approach was therefore not infected by error in any way that required intervention.
Form 1 offences. The applicant argued the sentencing judge had improperly double-counted the Form 1 offences by treating them as aggravating the principal offences rather than simply acknowledging them. The Court examined the judgment below and found no demonstrated error in the judge's treatment of those offences. The Form 1 matters were properly considered as part of the overall sentencing exercise.
Manifest excess. For the share theft offences, the Court assessed an appropriate head sentence of seven years for count 1 (before any plea discount), reducing to approximately five and a half years with a discount, and found the imposed sentence of five years was no greater than warranted. For the credit card offences, the Court assessed an appropriate head sentence of two years per count (before discount) and again found the imposed sentences were within range. The applicant's history of dishonesty, the sophistication of the offending, and the impact on innocent victims all supported the sentences imposed.
The Court noted that while gambling addiction and cocaine use provided some explanation for the offending, they did not diminish the seriousness of the criminality. Special circumstances (justifying a longer than usual ratio of parole to non-parole period) had been appropriately found, and the partial accumulation of the two groups of sentences was consistent with totality principles.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- A guilty plea discount of 10% sits at the lower end of the accepted range, but will not in itself ground a successful appeal if the sentences imposed remain within the range warranted by the offences independently assessed.
- Where an applicant argues that a more generous plea discount should have been applied, the Court of Criminal Appeal will assess what the sentence would have been on that basis and consider whether it would have been lower than the sentence actually imposed; if not, the ground fails under s 6(3) of the Criminal Appeal Act 1912.
- The Court of Criminal Appeal confirmed that Form 1 offences must be taken into account at sentencing, but the manner of doing so involves a broad discretion, and error will not be established without a clear demonstration that the judge's approach was legally flawed.
- In dismissing the appeal, the Court affirmed that a history of repeated dishonesty offences, sophisticated identity fraud spanning multiple victims, and continued offending while subject to court orders are all relevant factors supporting sentences at the higher end of the range.
- Gambling addiction and drug use may be acknowledged as background factors in mitigation, but the Court of Criminal Appeal held they do not reduce the objective seriousness of systematic and sophisticated fraudulent conduct.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), ss 178BB, 300(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 37
Cases
- Attorney General's Application under Section 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Armstrong [2000] NSWCCA 94
- R v Elachi [2003] NSWCCA 24
- R v Finn [2002] NSWCCA 86
- R v Hanslow [2004] NSWCCA 163
- R v Johnstone [2004] NSWCCA 307
- R v Newman [2004] NSWCCA 113
- R v Ramirez [1999] NSWCCA 406
- R v Scott [2003] NSWCCA 286
- R v Spiridonov (CCA, 1 May 1998, unreported)
- R v Stevens [2000] NSWCCA 324
- R v Tomich (2002) 127 A Crim R 234
- R v Whyte [2002] NSWCCA 343