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74
Court of Criminal Appeal 20 April 2005

Regina v Tadrosse

[2005] NSWCCA 145

Also reported as (2005) 65 NSWLR 740
Fraud & dishonesty
CRIMINAL LAW SENTENCING VULNERABILITY OF VICTIM

Citation: Regina v Tadrosse [2005] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 20 April 2005
Judges: Grove J, Howie J, Hall J

Background

The applicant pleaded guilty in the Local Court to eleven dishonesty offences and was committed to the District Court for sentencing. He also asked the sentencing judge to take into account a further 22 similar matters under a Form 1 (a mechanism that allows additional offences to be considered at sentencing without separate convictions being recorded). All offences arose from the applicant's use of false identity documents obtained from his cousin.

Over approximately six months, the applicant used those false identities to obtain goods and cash worth more than $200,000. The frauds ranged from obtaining mobile phones and heavy equipment on false pretences, to running a bogus landscaping business and accepting large upfront payments for work he never completed. None of the property or money was recovered.

The District Court imposed a total sentence of six years' imprisonment, with a non-parole period of three years and six months. The applicant sought leave to appeal, and the Crown conceded that the sentencing judge had made three errors.

  • Whether the sentencing judge incorrectly applied aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 that were not supported by the facts of the offences
  • Whether two of the sentences imposed exceeded the maximum penalty prescribed for those offences
  • Whether a lesser sentence was warranted in light of those errors, or whether the Court should decline to intervene under s 6(3) of the Criminal Appeal Act 1912

Decision

The Court identified three errors in the District Court's sentencing remarks. The first was a factual slip: the judge stated the offending spanned 18 months when it actually spanned 6 months. The Court accepted this was an inconsequential error that could not have affected the exercise of discretion.

The second and more significant error was that the judge took into account two statutory aggravating factors under s 21A(2) of the Crimes (Sentencing Procedure) Act that did not arise from the facts of the offences before him. Section 21A requires that aggravating circumstances be grounded in the actual conduct being sentenced; importing factors that are not established by the facts constitutes a sentencing error.

The third error was that the sentences imposed for two offences of passing a valueless cheque each exceeded the maximum penalty of 12 months' imprisonment prescribed for those offences. This was an error of law that required correction regardless of the broader sentencing exercise.

Because two of the three errors were substantive, the Court was not satisfied that the same sentences would have been imposed absent the errors. It proceeded to re-sentence the applicant, reducing the total term while still recognising the serious and calculated nature of the fraud, the 25 per cent discount for the guilty pleas, and the applicant's personal circumstances.

Orders Made

  • The sentences for the two offences of passing a valueless cheque were quashed; in their place, a fixed term of six months' imprisonment was imposed, dating from 18 June 2004 and expiring 17 December 2004.
  • The sentence for the offence of using a false instrument (taking into account the Form 1 matters) was quashed; in its place, a sentence of four years and six months' imprisonment was imposed, dating from 18 December 2004, with a non-parole period of two years and six months expiring 17 June 2007.
  • The appeal was allowed in part.
  • A subsequent amendment corrected an incongruity in the stated expiry date of the non-parole period to align with the specified period of two years and six months.

Key Takeaways

  • Under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must not apply statutory aggravating factors unless those factors are actually established by the facts of the offences being sentenced. Importing aggravating circumstances not grounded in the conduct before the court constitutes a sentencing error.
  • Imposing a sentence that exceeds the maximum penalty prescribed for an offence is an error of law requiring correction on appeal, regardless of the overall sentencing structure.
  • A minor factual slip in sentencing remarks, such as misstating the duration of offending, will not necessarily vitiate the sentence if it could not have materially affected the exercise of the sentencing discretion.
  • Where the Court of Criminal Appeal identifies substantive errors, it must re-sentence unless satisfied under s 6(3) of the Criminal Appeal Act 1912 that no lesser sentence is warranted; the Crown's concession of error did not automatically determine the extent of resentencing required.
  • The Court reduced the overall term but maintained a substantial sentence, reflecting the calculated nature of the fraud, the large financial loss to multiple victims, and the absence of any recovery of the proceeds.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1900 (NSW), ss 178B, 178BA, 300(1), 300(2), 302
- Drug Misuse and Trafficking Act 1985 (NSW), s 25

Cases:
- R v Wickham [2004] NSWCCA 193
- R v Pont (2001) 121 A Crim R 302
- R v Johnson [2004] NSWCCA 307
- R v Dowd [2005] NSWCCA 113
- R v Novakovic [2004] NSWCCA 437
- R v Walker [2005] NSWCCA 109
- Pearce v The Queen (1998) 194 CLR 610