Citation: Regina v Denigris [2005] NSWCCA 228
Court: Court of Criminal Appeal, New South Wales
Date: 4 July 2005
Judge(s): James J, Howie J, Rothman J
Background
The applicant pleaded guilty in the Local Court to 13 offences arising from a financial fraud scheme, including money laundering, eight counts of obtaining money by deception from a finance company, making and using false instruments, and obtaining a valuable thing by deception. The scheme involved submitting fraudulent loan applications to Australian Guarantee Corporation (AGC) to finance fictitious computer equipment purchases, using fabricated identities. The total amount dishonestly obtained from AGC was approximately $354,000, none of which was repaid or recovered (save for partial repayment by a co-offender).
The applicant had been committed to the District Court for sentence and was sentenced by Gibson ADCJ on 26 February 2004. The sentencing judge imposed a cascading series of sentences totalling six years, with non-parole periods totalling four years. The applicant sought leave to appeal against those sentences.
A co-offender, a solicitor who had participated in one of the loan applications, was sentenced by the same judge on the same day. The disparity between the two sentences became a central issue on appeal.
Legal Issues
- Whether the sentencing judge erred by failing to order concurrent sentences for some of the charges
- Whether the applicant had a justifiable sense of grievance arising from the disparity between his sentence and that of the co-offender, who received a lesser sentence in relation to the same criminal enterprise
- Whether the sentencing judge gave inadequate weight to the applicant's early guilty pleas and assistance to authorities
- Whether the fraud sentence (offence 13, relating to an orange juice machine obtained by a stolen cheque) was manifestly excessive
Decision
The Court of Criminal Appeal granted leave to appeal and allowed the appeal in part. The primary issue requiring correction arose from the disparity between the applicant's sentence and that of the co-offender solicitor. Both men had been sentenced by the same judge on the same day, and the co-offender received a fixed term of one year for his role in the same AGC loan transaction that formed part of the applicant's money laundering charge. James J found that the applicant had a justifiable sense of grievance when the sentences were compared, and that the money laundering sentence of one year needed to be reduced to six months to address that disparity.
The Court also identified that the sentencing judge had imposed a cumulative sentence for offence 6 (the deception involving the co-offender solicitor's identity) without adequately addressing the principle from Pearce v The Queen that where offences arise from the same transaction or overlap significantly, concurrency must be carefully considered. The sentence for offence 6 was reduced to a fixed term of nine months, running concurrently with adjusted periods.
On the remaining grounds, the Court was not persuaded that errors had been made. The sentencing judge's limited weight given to the assistance provided to authorities was upheld, given the judge's clearly expressed view that the applicant lacked credibility. The applicant had been described twice in the remarks on sentence as "glib" and as willing to make self-serving statements, which were findings the Court was not prepared to disturb. The sentence for offence 13 was not found to be manifestly excessive when viewed as a standalone sentence, even if it might have appeared disproportionate when compared with the lenient sentences for offences 2 to 9.
Orders Made
- Leave to appeal against sentence granted
- Appeal allowed in part
- The sentence for the money laundering offence quashed; replaced with a fixed term of six months commencing 20 November 2002
- The sentence for offence 6 (obtaining money by deception on the Hovan application) quashed; replaced with a fixed term of nine months commencing 20 February 2003 and expiring 19 November 2003
- All other sentences confirmed, including concurrent sentences of three years with a non-parole period of 12 months commencing 20 November 2005 for offences 2, 3, 4, 5, 7, 8 and 9
Key Takeaways
- A justifiable sense of grievance can arise where two offenders sentenced by the same judge on the same day for participation in the same criminal enterprise receive markedly different sentences, even where their precise roles and charges differ.
- The principle from Pearce v The Queen requires careful attention when imposing cumulative sentences for offences that arise from the same or overlapping transactions; failure to engage with that principle may produce error.
- A sentencing judge's express and reasoned findings about an applicant's credibility, including characterising the applicant as "glib" and self-serving, can support a decision to give limited weight to claimed assistance to authorities.
- Where a sentencing judge has found guilty pleas were entered at the earliest opportunity and accepted them as evidence of contrition, the Court of Criminal Appeal will not readily intervene merely because the resulting discount appears modest, particularly where the applicant's overall credibility was in question.
- In dismissing the ground that the fraud sentence for offence 13 was manifestly excessive, the Court noted that leniency in other sentences within the same matter does not of itself render a separate sentence excessive.
Legislation and Cases Referenced
Legislation:
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 73(2)
- Crimes Act 1900 (NSW), ss 178BA, 178BB, 300(1), 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
Cases:
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- R v Hovan [2005] NSWCCA 179
- R v Scott [2005] NSWCCA 152