Citation: Regina v Robert Cameron Martin [2005] NSWCCA 190
Court: Court of Criminal Appeal, New South Wales
Date: 20 May 2005
Judges: Hunt AJA, Hulme J, Johnson J
Background
The applicant was a director of a strata management company operating in Gosford and Gordon, NSW. Between June 1992 and March 1996, he fraudulently diverted approximately $488,875 from strata trust accounts to the company's general account, concealing the defalcations by manipulating the company's books. When a Department of Fair Trading audit uncovered a trust fund deficiency of nearly $667,000, the applicant disappeared, leaving behind suicide notes and prompting an extensive police search involving more than 50 personnel.
The applicant in fact fled to Victoria, where he lived and worked under his real name for several years. Police eventually located him in Melbourne and he was extradited to New South Wales. He pleaded guilty to one count of being a trustee fraudulently disposing of property contrary to s 172 of the Crimes Act 1900, which carries a maximum penalty of 10 years' imprisonment.
Judge Armitage QC of the Gosford District Court sentenced the applicant to a total term of four years' imprisonment, with a non-parole period of three years commencing 3 June 2004. The applicant sought leave to appeal, arguing the sentence was infected by legal error, that special circumstances warranted a longer parole period, and that the overall sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge erred by treating the applicant's abuse of a position of trust as a separate aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999, when that feature is already an element of the offence under s 172 of the Crimes Act 1900
- Whether the sentencing judge erred in declining to find "special circumstances" justifying a departure from the standard ratio between the non-parole period and the balance of term
- Whether the sentence was manifestly excessive
- Whether, even if error were established, a different sentence was warranted in law and should have been passed under s 6(3) of the Criminal Appeal Act 1912
Decision
The Court found that the sentencing judge had erred in treating the applicant's abuse of a position of trust as an additional aggravating factor under s 21A(2)(k). Because the offence under s 172 of the Crimes Act 1900 is constituted precisely by a trustee fraudulently disposing of trust property, the breach of trust is an inherent element of the offence itself. Applying it a second time as a separate aggravating feature amounted to impermissible double-counting.
Despite identifying this error, the Court declined to intervene. The governing principle, drawn from the Court's earlier decision in R v Johnson [2005] NSWCCA 186, is that the mere existence of a sentencing error does not authorise the substitution of a different sentence unless that substitute sentence is warranted in law and should have been imposed. The Court must first determine whether the sentence actually imposed falls outside the appropriate range for the circumstances, assessed without the tainted aggravating factor.
The Court was not satisfied that the non-parole period or the full term fell outside the appropriate range once the s 21A(2)(k) error was stripped away. The circumstances of the offending, including the scale of the defalcations, the protracted period over which they were committed, the elaborate concealment, the false suicide, the costly search operation, and the years spent evading justice in Victoria, all supported the sentence imposed. No error was found in the refusal to find special circumstances, and the sentence was not manifestly excessive.
Orders Made
- Leave to appeal granted
- Appeal dismissed
Key Takeaways
- Under s 172 of the Crimes Act 1900, breach of trust is a constituent element of the offence of a trustee fraudulently disposing of property; a sentencing court cannot treat that same feature as an additional aggravating factor under s 21A(2)(k) of the Crimes (Sentencing Procedure) Act 1999 without engaging in double-counting.
- Identifying a sentencing error does not automatically lead to a reduced sentence. Section 6(3) of the Criminal Appeal Act 1912 requires the appellate court to form the opinion that some other sentence is both warranted in law and should have been passed before it can intervene.
- In dismissing the appeal, the Court applied the two-step approach from R v Johnson: first, assess whether the sentence falls outside the appropriate range unaffected by the identified error; second, only if it does, determine what substitute sentence is warranted in law.
- Aggravating circumstances surrounding flight from justice, including faking suicide, triggering a major police search, and evading authorities for years, are legitimately weighty considerations at sentencing even where they are not formal statutory aggravating factors.
- A refusal to find "special circumstances" under the sentencing regime remains within the sentencing judge's discretion and will not constitute error simply because an applicant points to features of the case said to justify a longer parole period.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 172
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A(2)(k)
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)
- Property Stock and Business Agents Act 1941 (NSW)
- Service and Execution of Process Act 1992 (Cth)
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Amendment (Standard Minimum Sentencing) Act 2000 (NSW)
- Sentencing Act 1989 (NSW)
Cases
- R v Johnson [2005] NSWCCA 186
- R v Way (2004) 60 NSWLR 168
- R v Tadrosse [2005] NSWCCA 145
- R v Wickham [2004] NSWCCA 193
- R v Shore (1992) 66 A Crim R 37
- R v Simpson (2001) 53 NSWLR 704
- R v Pantano (1990) 49 A Crim R 328
- House v The King (1936) 55 CLR 499
- R v Woodman [2001] NSWCCA 310
- R v El-Rashid CCA(NSW), 7 April 1995
- R v Chaloner (1990) 49 A Crim R 370
- R v Hawkins (1989) 45 A Crim R 430
- R v Fidow [2004] NSWCCA 172
- R v Novakovic [2004] NSWCCA 437
- R v Hampton (1998) 44 NSWLR 729