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Court of Criminal Appeal 18 February 2005

Regina v Potter

[2005] NSWCCA 26

Fraud & dishonesty
CRIMINAL LAW S249B(1)(A) CRIMES ACT 1900 CORRUPTLY RECEIVE BENEFIT EFFECT OF DELAY IN SENTENCING

Citation: Regina v Potter [2005] NSWCCA 26
Court: NSW Court of Criminal Appeal
Date: 18 February 2005
Judge(s): Bryson JA, Barr J, Hoeben J

Background

The applicant was the Chief Steward of the Greyhound Racing Control Board (later the Greyhound Racing Authority) from approximately 1993 until 2000. His role carried responsibility for ensuring the integrity of greyhound racing in New South Wales, including oversight of drug testing procedures. Over a period of seven to eight years, he systematically subverted those procedures for financial gain.

The corrupt conduct involved two main methods: manipulating the random draw used to select which races would trigger drug testing, and substituting clean urine samples for those taken from drug-affected dogs before they reached the analytical laboratory. The Independent Commission Against Corruption (ICAC) uncovered the conduct during a covert investigation commencing in December 1999. When interviewed, the applicant co-operated fully, wore a listening device, and provided evidence against other participants in the scheme.

The applicant pleaded guilty in the Local Court to five counts of corruptly receiving a benefit under s 249B(1)(a) of the Crimes Act 1900, with three further matters taken into account on a Form 1. He was sentenced in the District Court in December 2003 and sought leave to appeal against those sentences.

  • Whether the sentencing judge erred by taking into account uncharged criminal conduct spanning the full period of corrupt activity (1992/1993 to 2000), rather than limiting consideration to the charged offences
  • Whether good character was a relevant mitigating factor for an offence involving a fundamental breach of trust
  • Whether the three-year delay between the offending and sentencing required a greater discount
  • Whether the sentencing judge incorrectly balanced the discounts for early guilty plea and assistance to authorities against the objective seriousness of the offences

Decision

On the issue of uncharged conduct, the Court confirmed that the sentencing judge was entitled to consider the full history of corrupt activity when assessing the objective seriousness of the offences. The charged conduct occurred at the tail end of a much longer course of corruption. The applicant's own estimate of six to ten urine substitutions per year over seven to eight years placed the charged offences firmly in context, and it would have been artificial to ignore that background.

On good character, the Court found that whatever community standing the applicant may have enjoyed arose directly from his position of trust, the very position he had been exploiting. The sentencing judge was correct to treat good character as a neutral or near-neutral factor in these circumstances. The principle that good character carries reduced weight where the offence itself constitutes a gross breach of trust was applied without error.

Regarding the delay between offending and sentencing, the Court acknowledged that delay is a mitigating consideration. However, the applicant had not been in custody during that period, and the sentencing judge gave appropriate weight to the delay without being required to treat it as a dominant factor.

On the question of discounts for plea and assistance, the Court found no error in the sentencing judge's approach. Drawing on the principle that s 23(3) of the Crimes (Sentencing Procedure) Act 1999 requires the resulting sentence to remain proportionate to the nature and circumstances of the offence, the Court observed that the sentences imposed, if anything, were unduly favourable to the applicant. The total effective sentence of three years and three months with a non-parole period of one year and nine months did not reveal error.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court may take into account uncharged criminal conduct forming part of a continuous course of behaviour when assessing the objective gravity of charged offences, even where that conduct is significantly older than the charged acts.
  • Good character carries substantially reduced weight as a mitigating factor where the offence constitutes a gross breach of the trust that generated the offender's standing in the community in the first place.
  • Delay between offending and sentencing is a recognised mitigating circumstance, but its weight is diminished where the offender was not held in custody during the intervening period.
  • Under s 23(3) of the Crimes (Sentencing Procedure) Act 1999, a sentencing court must ensure that discounts for assistance to authorities do not produce a sentence unreasonably disproportionate to the nature and circumstances of the offence.
  • In dismissing the appeal, the Court of Criminal Appeal noted that sentences at the lower end of the permissible range may still survive appellate review where the objective seriousness of the offending is high, particularly where multiple mitigating factors have already been applied.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 249B(1)(a)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23(3)

Cases
- JCW (2000) 112 A Crim R 466
- Pearce v The Queen (1998) 194 CLR 618
- R v Cartwright (1989) 17 NSWLR 243
- R v Dibb [2003] NSWCCA 117
- R v Gallagher (1991) 23 NSWLR 220
- R v NP [2003] NSWCCA 195
- R v Todd (1982) 2 NSWLR 517
- Veen (No 2) v The Queen (1988) 164 CLR 465
- Weininger v The Queen (2003) 212 CLR 629