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14
Court of Criminal Appeal 22 September 2006

MARINELLIS v REGINA

[2006] NSWCCA 307

Fraud & dishonestyPublic order & justice offences
SENTENCE FRAUD IMPORTANCE OF OBJECTIVE CIRCUMSTANCES PERVERTING COURSE OF JUSTICE

Citation: Marinellis v Regina [2006] NSWCCA 307
Court: New South Wales Court of Criminal Appeal
Date: 22 September 2006
Judge(s): McColl JA; Adams J; Latham J

Background

The appellant pleaded guilty in the District Court to ten counts of fraud and one count of perverting the course of justice under s 319 of the Crimes Act 1900. The fraud offences involved a sophisticated scheme targeting different victims over approximately ten months in 2003. The sentencing judge found the appellant had pursued victims with persistent determination, and that any failures were attributable to victims detecting the deception or police intervention rather than any restraint on the appellant's part.

The perverting the course of justice offence arose from letters the appellant wrote while on remand. Those letters sought to induce individuals to bribe or otherwise neutralise police officers who were key prosecution witnesses. Correctional services officers intercepted the letters before they reached their intended recipients.

The District Court sentenced the appellant to three years' imprisonment for each of the ten fraud counts, all served concurrently, and a separate sentence for the s 319 offence. The appellant sought leave to appeal against all sentences on the grounds that they were manifestly excessive, and additional grounds were raised concerning the sentencing judge's approach.

  • Whether the sentencing judge erred by imposing fully concurrent sentences for ten separate fraud offences involving different victims
  • Whether the sentence imposed for the s 319 offence (perverting the course of justice) was manifestly excessive
  • Whether the sentencing judge correctly assessed the utilitarian value of the appellant's guilty plea
  • Whether the ratio between the non-parole period and the overall head sentence for the s 319 count accorded with the statutory formula under s 44 of the Crimes (Sentencing Procedure) Act 1999
  • Whether s 6(3) of the Criminal Appeal Act 1912 precluded intervention where the overall sentence remained appropriate even if an individual component was arguably excessive

Decision

The Court of Criminal Appeal unanimously found that the sentencing judge had extended an inappropriate degree of leniency by imposing fully concurrent sentences across all ten fraud counts. Each count involved a distinct victim and separate criminal conduct spanning nearly a year. The authorities establish that imposing wholly concurrent sentences in such circumstances fails to reflect the objective criminality of each discrete offence and the harm caused to each victim individually.

On the s 319 count, the judges divided in their reasoning. Adams J considered the sentence manifestly excessive and criticised the sentencing judge's characterisation of the conduct as "attempted bribing of a police officer." McColl JA and Latham J disagreed. McColl JA held that the objective seriousness of a perverting the course of justice offence turns on the nature and degree of the perversion intended, not on whether the conduct succeeded. The fact that the letters were intercepted and the scheme failed was of far less significance than in sentencing for an attempted substantive offence. Strong denunciatory and deterrent sentences are required for such offences, which strike at the integrity of the justice system.

All judges agreed that the sentencing judge had erred in assessing the utilitarian value of the guilty plea. However, the majority held that, applying s 6(3) of the Criminal Appeal Act 1912, the overall sentence was the minimum that could be regarded as reflecting the totality of the criminality. Intervention beyond adjusting the non-parole period to reflect the statutory ratio was therefore not warranted.

The Court allowed the appeal only in respect of count 10 (the s 319 offence), to the limited extent of adjusting the non-parole period to bring it into conformity with the statutory formula. The remaining appeals were dismissed.

Orders Made

  • Leave to appeal granted
  • Appeals in respect of sentences imposed on counts 1 to 9 and 11 dismissed
  • Appeal in respect of count 10 allowed to the extent that the non-parole period was quashed and substituted with a non-parole period of two years, four months and one week, commencing 31 May 2005 and ending 6 October 2007

Key Takeaways

  • Imposing wholly concurrent sentences for multiple fraud offences, each involving a distinct victim and separate course of conduct, fails to reflect the objective criminality of each offence and constitutes an error in principle.
  • Under s 319 of the Crimes Act 1900, the gravity of a perverting the course of justice offence is assessed primarily by reference to the nature and degree of the perversion intended, not whether the conduct achieved its aim. The interception or failure of the scheme is of significantly less mitigating weight than in sentencing for an attempt to commit a substantive offence.
  • Offences that target the integrity of the justice system, such as attempting to corrupt police witnesses, attract strong denunciatory sentences to make clear that any such conduct will be treated as a very serious matter.
  • Section 6(3) of the Criminal Appeal Act 1912 operates to preclude appellate intervention where, even if an individual sentence within a group is arguably excessive, reducing it would produce an overall sentence so inadequate as not to be warranted in law. Adams J noted a reservation about treating the "aggregate sentence" as a legally recognised entity for this purpose, though the question was not fully argued.
  • The non-parole period imposed must conform to the statutory ratio established by s 44 of the Crimes (Sentencing Procedure) Act 1999, and a departure from that ratio may warrant correction even where the head sentence itself is upheld.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BB, 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 44
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Pearce v The Queen (1998) CLR 610
- R v Rogerson [1992] HCA 25; (1992) 174 CLR 268
- Taouk v R (1992) 65 A Crim R 387
- R v Pangallo (1991) 56 A Crim R 441
- R v Wilson [2005] NSWCCA 219
- R v Janceski [2005] NSWCCA 288; (2005) 44 MVR 328
- R v Thomson and Houlton (2000) 49 NSWLR 383
- R v Itamua [2000] NSWCCA 502
- McCabe [2006] NSWCCA 220
- Georgiou [2005] NSWCCA 237
- Nightingale [2005] NSWCCA 147
- MM [2002] NSWCCA 431