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Court of Criminal Appeal 19 June 2007

Assafiri v R

[2007] NSWCCA 159

Fraud & dishonesty
CRIMINAL LAW SENTENCE FEDERAL OFFENCES ASSISTANCE TO AUTHORITIES.

Citation: Assafiri v R [2007] NSWCCA 159
Court: NSW Court of Criminal Appeal
Date: 19 June 2007
Judges: Basten JA, Grove J, Howie J

Background

The applicant pleaded guilty in the District Court to three counts of making a false statement under the Financial Transactions Reports Act 1988 (Cth) and one count of possessing property reasonably suspected of being proceeds of crime under the Criminal Code (Cth). He also asked the sentencing judge to take into account 19 further money laundering offences under s 16BA of the Crimes Act 1914 (Cth), and pleaded guilty to a schedule of related State and Federal offences.

The sentencing judge in the District Court imposed individual sentences for each count and then, after pronouncing them, purported to apply a 20 per cent guilty plea discount to arrive at an intended overall term of three years. The problem was that the judge never recalculated or vacated the individual sentences before applying the discount, leaving a formal record that was internally inconsistent and which nominally showed a total term of three years and nine months.

The applicant sought leave to appeal, contending that the sentences were excessive in any event and that he should have received a discount for proffered assistance to authorities. He also sought periodic detention.

  • Whether the sentencing judge erred by applying a guilty plea discount after pronouncing sentences, rather than by constructing sentences that already incorporated the discount
  • Whether s 16BA of the Crimes Act (Cth) permits matters to be taken into account when sentencing for more than one Federal offence, and whether doing so here produced double counting
  • Whether the judge erred by declining to grant a discount for the applicant's proffered assistance to authorities
  • Whether Federal sentences could be backdated where the offender was not in custody at the time of sentencing
  • Whether periodic detention was an appropriate sentencing disposition

Decision

Discount methodology: Howie J identified a fundamental structural error in the District Court's approach. A sentencing court must determine the appropriate sentence after applying any relevant discounts. It cannot pronounce a sentence and then reduce it by a percentage as a separate step. Because the judge here did neither, there was no reliable record of what sentence was actually being served for any individual count. The Court of Criminal Appeal was required to resentence the applicant entirely.

Section 16BA double counting: The s 16BA form, as completed, applied the additional offences to all four counts. Howie J concluded that, although the text of s 16BA might be read to permit this, the legislature could not have intended that the same offences be counted multiple times to increase more than one sentence, particularly where some sentences ran cumulatively. The Crown conceded the point. The Court agreed the s 16BA matters should be applied to the most serious count only, being count 2.

Assistance to authorities: The judge at first instance declined to discount for proffered assistance. The Court of Criminal Appeal upheld that discretionary finding. The assistance had been of minimal effectiveness, partly because of the applicant's own delay in proffering it and the possible destruction of relevant evidence. Howie J acknowledged another judge might have awarded a modest discount of around 10 per cent but found it was within the sentencing discretion to withhold one entirely.

Backdating and other matters: Howie J confirmed that there is no basis under the Crimes Act (Cth) for a proposition that Federal sentences cannot be backdated where an offender was not in custody. The preferred practice, consistent with State sentencing, is to backdate by any period served in pre-sentence custody. The Court declined to order periodic detention. On resentencing, the Court applied a ratio of 60 per cent minimum custody to overall term, reflecting the applicant's lack of prior convictions, good character, and rehabilitation steps taken in custody.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentences imposed in the District Court quashed
  • Count 1: imprisonment for 14 months from 19 September 2006, expiring 18 November 2007
  • Count 2 (taking into account s 16BA matters): imprisonment for 2 years from 19 February 2007, expiring 18 February 2009
  • Count 3: imprisonment for 19 months from 19 February 2007, expiring 18 September 2008
  • Count 4: imprisonment for 6 months from 19 February 2007, expiring 18 August 2007
  • Sentences for related matters confirmed, to date from 19 September 2007
  • Applicant to serve a minimum period of 1 year 5 months from 19 September 2006, expiring 18 February 2008, then released on recognizance

Key Takeaways

  • A sentencing court must arrive at a sentence that already incorporates any applicable discount; it cannot impose a sentence and then purport to reduce it by a percentage as a separate step, as this creates irresolvable uncertainty about the operative term.
  • Under s 16BA of the Crimes Act (Cth), matters taken into account cannot lawfully be applied to increase more than one sentence, particularly where those sentences run cumulatively. The appropriate approach is to nominate a single offence, ordinarily the most serious, to which the s 16BA matters apply.
  • Effectiveness is a relevant consideration when assessing a discount for assistance to authorities. Minimal effectiveness, especially where attributable to the offender's own delay or conduct, may justify withholding a discount altogether.
  • Federal sentences can be backdated to reflect time spent in pre-sentence custody, consistent with the approach applied to State matters. No provision in the Crimes Act (Cth) supports a contrary rule.
  • In resentencing, the Court of Criminal Appeal applied a 60 per cent minimum custody ratio, citing the applicant's absence of prior convictions, demonstrated good character, and rehabilitation efforts undertaken in custody.

Legislation and Cases Referenced

Legislation
- Financial Transactions Reports Act 1988 (Cth), ss 15, 29(4)(b)
- Criminal Code (Cth) 1995, s 400.9(1)
- Crimes Act 1914 (Cth), ss 16BA, 16E(1)
- Criminal Procedure Act 1986 (NSW), s 166

Cases
- R v Newman & Simpson (2004) 145 A Crim R 361
- R v Olbrich (1999) 199 CLR 270
- R v El Hani [2004] NSWCCA 162