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Court of Criminal Appeal 22 July 2005

Regina v FARRANT

[2005] NSWCCA 229

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE TOTALITY ONE COURSE OF CRIMINAL CONDUCT REDRESSING PREVIOUS LENIENCY

Citation: Regina v Farrant [2005] NSWCCA 229
Court: NSW Court of Criminal Appeal
Date: 22 July 2005
Judge(s): James J, Howie J, Rothman J (Rothman J delivered the principal judgment; James J and Howie J agreed)

Background

The appellant was employed in an accounts payable role at AGL from September 2000. Between October 2000 and October 2003, she systematically defrauded her employer by manipulating the company's electronic payment system: she caused cheques to be issued to a legitimate creditor, then retrieved those cheques, erased the payee's name, substituted her own name, and deposited the proceeds. She also used a company credit card for personal purchases.

The scheme came to light in November 2003 when AGL staff noticed irregularities in a large cheque for over $79,000. The appellant was confronted, her employment was terminated, and she made admissions to police. She pleaded guilty at the earliest opportunity. The total fraud across all charged and Form 1 matters exceeded $139,000.

The appellant was sentenced in the District Court by Berman DCJ to a total effective term of two years and nine months, with a non-parole period of eighteen months. The appellant sought leave to appeal that sentence to the Court of Criminal Appeal, arguing it was excessive on two grounds.

  • Whether Berman DCJ failed to give adequate consideration to the totality principle when structuring the sentences for eight separate offences
  • Whether Berman DCJ placed excessive weight on the appellant's prior criminal convictions in fixing the sentence

Decision

On totality, the Court noted that Berman DCJ did not expressly use the word "totality," but found his Honour had plainly engaged with the substance of the principle. The offences arose from a single continuing course of dishonest conduct. The sentence was structured with a finding of special circumstances and a significant adjustment to the non-parole period, reflecting an approach consistent with the totality principle even without invoking the label. No error in the approach to totality was established.

On the weight given to prior convictions, the Court applied the principle from Veen (No. 2) that criminal history may legitimately inform sentencing, but must not produce a sentence disproportionate to the gravity of the instant offences. The appellant had two prior sets of dishonesty convictions from 1995 and 1996, each arising from offences against different employers and each dealt with by fines and bonds.

The Court found Berman DCJ had not sought to redress the leniency of the earlier sentences. Rather, his Honour had concluded that the appellant's failure to be deterred by those lenient outcomes demonstrated a continuing attitude of disobedience, making personal deterrence a more significant sentencing consideration. That approach was consistent with the principles stated in Veen (No. 2). The Court also noted that his Honour explicitly extended "as much leniency as possible" and considered alternatives to full-time custody before concluding that only a custodial sentence was appropriate.

Neither ground of appeal was made out. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge need not use the word "totality" for the totality principle to have been properly applied; what matters is whether the judge engaged with the substance of the principle in structuring the overall sentence.
  • Under the principles in Veen (No. 2), prior convictions for similar offending are legitimately relevant to sentencing where they demonstrate a continuing attitude of disobedience rather than an uncharacteristic aberration, provided the resulting sentence remains proportionate to the instant offences.
  • Criminal history cannot be used to impose a fresh penalty for past offences, but it can inform the weight given to personal deterrence where an offender has repeatedly failed to be deterred by earlier lenient outcomes.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that employment dishonesty involving a serious, prolonged breach of trust and a large sum of money over many years can warrant full-time custodial sentences even where the offender has cooperated, pleaded guilty at the earliest opportunity, and undertaken to repay the stolen funds.
  • Appellate courts will not substitute their own sentencing discretion simply because they might have reached a different result; interference requires an identifiable error in the exercise of that discretion.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178BA(1), 300(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Lowndes v R (1999) 195 CLR 665
- House v The King (1936) 55 CLR 499
- Johnson v R (2004) 78 ALJR 616
- Pearce v R (1998) 194 CLR 610
- O'Keefe v The Crown (1992) 60 A Crim R 201
- Veen (No. 2) (1988) 164 CLR 465