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Court of Criminal Appeal 25 October 2007

R v HARE

[2007] NSWCCA 303

Fraud & dishonesty
CRIMINAL LAW S5D APPEAL AGAINST SENTENCE SHARE TRADING SCHEME MATTER RE WHETHER SENTENCE MANIFESTLY INADEQUATE

Citation: R v Hare [2007] NSWCCA 303
Court: Court of Criminal Appeal, New South Wales
Date: 25 October 2007
Judge(s): McClellan CJ at CL, Adams J, Harrison J

Background

The respondent pleaded guilty to 14 counts of obtaining a financial benefit by deception under s 178BA of the Crimes Act 1900, arising from a share trading fraud scheme. Between June 2003 and December 2005, he made fraudulent representations to induce six victims to invest money, falsely claiming funds would be applied to gold options and other investments. The total amount obtained across all counts exceeded $1.4 million, with one victim alone losing over $1.1 million across multiple transactions. A further 12 offences of the same kind were taken into account on sentencing.

The respondent was sentenced in the District Court by Flannery DCJ on 30 March 2007 to a total term of five years' imprisonment. The sentencing judge found special circumstances and structured the sentences with an aggregate non-parole period, which was subsequently reduced from three years and nine months to three years and three months when the matter was relisted on 14 May 2007 to give effect to that finding. The Crown did not appeal the original sentence but filed a notice of appeal after the non-parole period was reduced.

The Crown appealed to the Court of Criminal Appeal on the sole ground that the sentences were manifestly inadequate.

  • Whether the total sentence and the non-parole period imposed were manifestly inadequate for the gravity and extent of the offending.
  • Whether the sentencing judge erred in finding special circumstances and reducing the non-parole period.
  • Whether the evidence concerning the negative impact of the respondent's custody on his son was a proper basis for a finding of special circumstances.
  • Whether the court had jurisdiction to vary the sentence at the relisting on 14 May 2007.

Decision

The Court of Criminal Appeal dismissed the Crown appeal, finding that the sentences were not manifestly inadequate. McClellan CJ at CL delivered the primary judgment, with Adams J and Harrison J agreeing.

The Court acknowledged the serious nature of the offending: the fraud was sustained over more than two years, involved multiple victims who were known to the respondent personally, and the total amount obtained was very substantial. The respondent had exploited relationships of trust and friendship to perpetuate the scheme.

Notwithstanding the gravity of the offending, the Court was not persuaded that the sentences fell outside the range of a proper exercise of the sentencing discretion. The sentencing judge had taken into account the full range of relevant factors, including the respondent's guilty plea, the impact on his son, and his identified personal challenges including issues with alcohol, gambling, and mental health.

The question of whether the sentencing court had jurisdiction to reopen the matter and vary the non-parole period on 14 May 2007 was raised but left unresolved, as the Crown conceded jurisdiction for the purposes of the appeal. The Court therefore did not need to determine whether the variation was authorised under s 43 of the Crimes (Sentencing Procedure) Act 1999 or on some other basis.

Orders Made

  • Appeal dismissed.

Key Takeaways

  • A Crown appeal under s 5D of the Criminal Appeal Act 1912 requires the Court to be satisfied that the sentence was manifestly inadequate; the Court of Criminal Appeal declined to intervene where the sentencing judge had exercised her discretion within an acceptable range.
  • Finding special circumstances under the Crimes (Sentencing Procedure) Act 1999 permitted the sentencing judge to extend the parole period beyond the statutory ratio, supported here by the respondent's supervision needs and the hardship to his son.
  • A guilty plea, personal circumstances including mental health and addiction issues, and the welfare of a dependent child were all recognised as relevant factors capable of affecting the structure of a sentence, even in cases involving serious, sustained fraud.
  • The jurisdictional basis for relisting a matter to give effect to a finding of special circumstances after the original sentencing date was left open by the Court, with the point neither decided nor conceded in principle.
  • Comparative sentencing data from other s 178BA cases confirmed that a total effective sentence of five years with an aggregate non-parole period of approximately three years and three months was not outside the range for large-scale, multi-victim deception offending accompanied by a guilty plea and relevant personal circumstances.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 5D
- Crimes Act 1900 (NSW), s 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 33, 43

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Hawkins (1989) 45 A Crim R 438
- MD, BM, NA, JT [2005] NSWCCA 342; 156 A Crim R 372
- Pearce v The Queen (1998) 194 CLR 610
- Pont (2000) 121 A Crim R 302
- R v Burrell [2007] NSWCCA 79
- R v Hernando [2002] NSWCCA 489