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26
Court of Criminal Appeal 18 April 2005

Regina v Scott

[2005] NSWCCA 152

Fraud & dishonesty
CRIMINAL LAW SENTENCING CROWN APPEAL ORDER QUASHED.

Citation: Regina v Scott [2005] NSWCCA 152
Court: NSW Court of Criminal Appeal
Date: 18 April 2005 (amended 25 October 2005)
Judge(s): Howie J, Barr J, Grove J

Background

The respondent, a certified accountant and sole director of a Hunter Region office equipment business, pleaded guilty to three counts of presenting false invoices with intent to defraud, contrary to s 176A of the Crimes Act 1900. Each offence carried a maximum penalty of 10 years' imprisonment. The frauds were perpetrated in January 2001 and involved forged invoices and false statutory declarations submitted to two finance corporations, the National Australia Bank and Suncorp Metway Limited, in connection with sale and leaseback arrangements for office equipment that had never actually been purchased.

By this conduct, the respondent obtained a total of approximately $4.7 million. The business subsequently went into voluntary liquidation in June 2001 with debts exceeding $18 million. The respondent had attended police voluntarily shortly after the collapse, made extensive admissions, and was not charged until December 2003.

In the District Court, Judge Finnane QC sentenced the respondent on each count to 2 years and 6 months' imprisonment with a non-parole period of 22 months and 15 days, all sentences to be served concurrently. Crucially, the sentencing judge ordered that the sentences be served by way of periodic detention rather than full-time custody. The Crown appealed that sentencing outcome.

  • Whether the District Court erred in the exercise of its sentencing discretion by ordering that the sentences be served by periodic detention.
  • Whether the sentences, as structured by the order for periodic detention, were manifestly inadequate given the nature and scale of the offending.
  • What weight should be given to the respondent's mitigating circumstances, including his early plea, cooperation with police, and personal circumstances.
  • What approach the Court of Criminal Appeal should take on a Crown appeal, including the application of the double jeopardy principle in resentencing.

Decision

The Court of Criminal Appeal, led by Howie J (with Barr J and Grove J agreeing), allowed the Crown appeal and quashed the order for periodic detention. The Court found that the periodic detention order rendered the sentences manifestly inadequate, given the gravity of the offending. The fraud was sophisticated, premeditated, and involved very large sums of money obtained through forged documents and false statutory declarations.

The Court acknowledged the respondent's significant mitigating factors. These included his early guilty plea, his voluntary attendance at police shortly after the offences came to light, his extensive cooperation in a lengthy recorded interview, the delay between the commission of the offences and his charging, and various personal circumstances. However, the Court concluded that these factors, while they properly influenced the length of the sentences imposed, could not justify the mode of detention chosen.

In considering what resentencing was appropriate, the Court applied the principle that on a Crown appeal, the double jeopardy consideration (the respondent being exposed to appeal twice for the same conduct) means the Court should impose a sentence at the lower end of the available range. The Court determined that this outcome was best achieved by simply quashing the periodic detention order while otherwise leaving the sentences undisturbed.

The underlying terms of imprisonment of 2 years and 6 months with a non-parole period of 22 months and 15 days on each count, running concurrently from 4 February 2005, were confirmed. The respondent was ordered to surrender to custody forthwith.

Orders Made

  • The Crown appeal against sentence is allowed.
  • The order for service of sentence in the District Court by way of periodic detention is quashed.
  • The sentences are otherwise confirmed: on each count, the respondent is sentenced to imprisonment for 2 years and 6 months with a non-parole period of 22 months and 15 days, each commencing on 4 February 2005.
  • The non-parole period expires on 18 December 2006.
  • The respondent is to be released to parole on 18 December 2006.
  • The respondent is to surrender to custody forthwith.

(Note: The parole release date was corrected by the Court on 25 October 2005 from the date originally stated in the April 2005 orders.)

Key Takeaways

  • A periodic detention order can render an otherwise structured sentence manifestly inadequate where the nature and scale of the offending demands full-time custody, regardless of the mitigating factors present.
  • Significant mitigating circumstances, including an early guilty plea, voluntary cooperation with police, lengthy delays in charging, and personal hardship, were found sufficient to influence the length of the sentence but not the mode of its service in the context of serious, large-scale fraud.
  • On a successful Crown appeal, the Court of Criminal Appeal applied the double jeopardy principle to limit its intervention to the minimum correction necessary, confirming the sentence terms while quashing only the periodic detention order.
  • Where the District Court's error lies in the mode of detention rather than the length of the sentence, the Court of Criminal Appeal may confine its correction to quashing the offending order, leaving the underlying terms intact.
  • Fraud offences under s 176A of the Crimes Act 1900 involving sophisticated deception, forged documents, and losses in the millions of dollars were treated by the Court as warranting full-time custodial sentences even where substantial mitigation exists.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 176A (presenting false invoices with intent to defraud; maximum 10 years' imprisonment)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 3A (purposes of sentencing)

Cases cited:
- R v Geddes (1936) SR (NSW) 554
- R v Dodd (1991) 57 A Crim R 349
- R v Melville (1956) 73 WN (NSW) 579
- R v Weldon; R v Carberry [2002] NSWCCA 475
- R v Hammoud (2000) 118 A Crim R 66
- Pearce v The Queen (1998) 194 CLR 610
- R v AEM [2002] NSWCCA 58
- R v Blanco [1999] NSWCCA 121
- R v Scwabbegger [1998] 4 VR 649