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15
Court of Criminal Appeal 4 May 2007

KUTCHERA v REGINA

[2007] NSWCCA 121

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL ABERRANT BEHAVIOUR SIGNIFICANT SUBJECTIVE FACTORS APPEAL GRANTED IMPRISONMENT SUSPENDED.

Citation: Kutchera v Regina [2007] NSWCCA 121
Court: New South Wales Court of Criminal Appeal
Date: 4 May 2007
Judge(s): James J, Rothman J, Harrison J

Background

The appellant, a US citizen living in Australia, pleaded guilty in the District Court to obtaining a valuable thing by deception under s 178BA(1) of the Crimes Act 1900 (NSW). The offence involved presenting a stolen Commonwealth Bank cheque to acquire a Lamborghini Gallardo valued at $415,000, with the intention of selling it and sharing the proceeds with a co-offender. The vehicle was ultimately recovered and no lasting financial damage resulted.

The sentencing judge, Marien DCJ, acknowledged the appellant's guilty plea, genuine remorse, lack of prior criminal record, and good character, and described the offence as an "ill conceived and naïve criminal enterprise." Despite these findings, his Honour imposed a sentence of 18 months' imprisonment, comprising a nine-month non-parole period followed by a nine-month balance of term commencing December 2006.

The appellant, unrepresented on appeal, challenged the sentence on two grounds: first, that no pre-sentence report had been ordered to consider sentencing alternatives; and second, that insufficient weight was given to the 20-month delay between charge and sentence and to his rehabilitation during that period.

  • Whether the sentencing judge erred by failing to obtain a pre-sentence report before imposing a full custodial sentence.
  • Whether the sentencing judge gave sufficient weight to the delay between charge and sentence and to the appellant's rehabilitation while on bail.
  • Whether the sentencing judge committed an error of law by treating a suspended sentence as falling outside the available range of sentencing options, rather than as an option available but not appropriate in the exercise of his discretion.

Decision

Rothman J, with James J agreeing, found that the sentencing judge had committed no identifiable error of principle in the ordinary sense. The sentence sat at the low end of the available range, the guilty plea was accounted for, and the lack of sophistication and absence of actual damage were both taken into consideration. There was no error arising from the failure to obtain a pre-sentence report, given that the court had discussed the matter with counsel and counsel did not request one.

However, the Court identified a critical error in the remarks on sentence. Marien DCJ had stated that "the nature of the particular offence and the circumstances in which it was committed effectively take the offence outside a proper exercise of sentencing discretion by suspension" and that to suspend the sentence "would be an erroneous exercise" of his discretion. Rothman J and Harrison J each found that this language indicated the sentencing judge had foreclosed entirely on the possibility of a suspended sentence, rather than simply declining to impose one in the exercise of his discretion.

Harrison J explained the distinction clearly: a judge may legitimately conclude that a suspended sentence is available but inappropriate. What a judge cannot do is treat a suspended sentence as outside the lawful range altogether, because doing so removes a permissible option from consideration and constitutes an error of law. In the circumstances of this case, including the aberrant and unsophisticated nature of the offending, the absence of damage to any person or property, and the appellant's significant subjective circumstances, the Court found that a suspended sentence was warranted.

Orders Made

  • Leave to appeal granted.
  • Appeal granted in part.
  • The sentence imposed by Marien DCJ confirmed, except that the execution of the whole of the sentence was suspended until 5 June 2008.
  • The appellant released from custody on condition that he enter into a good behaviour bond for a term expiring 5 June 2008.

Key Takeaways

  • A sentencing judge commits an error of law by treating a suspended sentence as falling outside the available sentencing range, rather than as a lawful option to be considered and potentially declined in the exercise of discretion. These are meaningfully different positions.
  • The Court of Criminal Appeal distinguished between language indicating a judge chose not to suspend a sentence and language indicating a judge believed suspension was impermissible. The latter is reviewable on appeal.
  • Where an unrepresented appellant challenges a sentence, the Court of Criminal Appeal may examine the proceedings below more thoroughly than it otherwise would, to identify potential error not articulated by the appellant.
  • Significant subjective factors, including a guilty plea, genuine remorse, good character, absence of prior criminal history, and the aberrant nature of isolated offending, can collectively support a finding that a suspended sentence is warranted.
  • Absence of damage to persons or property, and recovery of the relevant item, are relevant considerations in assessing whether a non-custodial disposition is appropriate, even for offences that would ordinarily attract imprisonment.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- House v The King (1936) 55 CLR 499
- De Simoni (1981) 147 CLR 383
- R v Todd [1982] 2 NSWLR 517
- R v Mill (1988) 166 CLR 59
- Dinsdale v The Queen (2000) 202 CLR 321
- R v Boulghourgian (2001) 125 A Crim R 540
- R v Simpson (2001) 53 NSWLR 704
- R v Zamagias [2002] NSWCCA 17
- GAS v The Queen (2004) 217 CLR 198
- Johnson v The Queen (2004) 78 ALJR 616
- Markarian v The Queen (2005) 79 ALJR 1048