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Court of Criminal Appeal 27 February 2007

Hyman v Regina

[2007] NSWCCA 47

Fraud & dishonesty
CRIMINAL LAW SENTENCING REQUIREMENT TO APPLY PEARCE V THE QUEEN WHETHER SENTENCES MANIFESTLY EXCESSIVE.

Citation: Hyman v Regina [2007] NSWCCA 47
Court: NSW Court of Criminal Appeal
Date: 27 February 2007
Judges: Sully J, Bell J, Hoeben J

Background

The appellant was an executive assistant at the Sydney office of American Express International. From around 2000, she used her company Corporate Credit Card to make extensive personal purchases, concealing them by submitting fraudulent Travel Expense Vouchers on which she forged her supervisor's signature and authorisation number. The fraud continued until her arrest in March 2005 and resulted in substantial financial loss to her employer.

In the District Court, the appellant pleaded guilty to nine counts each of making and using a false instrument (carrying a maximum of 10 years' imprisonment each) and two counts of obtaining a financial advantage by deception (maximum 5 years each). A further 55 matters were placed on a Form 1 to be taken into account on sentencing. The sentencing judge imposed concurrent terms, producing an effective non-parole period of 3 years and 9 months, with a balance of term of 1 year and 6 months.

The appellant sought leave to appeal to the Court of Criminal Appeal, arguing that the sentencing judge had made legal errors and that the sentences were manifestly excessive.

  • Whether the sentencing judge erred by adopting a global approach to sentencing rather than imposing individual sentences for each offence, as required by Pearce v The Queen (1998) 194 CLR 610
  • Whether the sentencing judge erred in the way the Form 1 matters were taken into account
  • Whether the application of s 21A of the Crimes (Sentencing Procedure) Act 1999 (which sets out aggravating and mitigating factors) was correct
  • Whether the resulting sentences were manifestly excessive

Decision

The Court of Criminal Appeal accepted that the sentencing judge had made two technical errors. First, his Honour had not followed the approach mandated by Pearce v The Queen, which requires a sentencing court to set an appropriate sentence for each individual offence before considering totality and concurrency. Second, the Form 1 matters were attributed to the wrong sequences in the sentencing structure.

Despite finding these errors, the Court declined to intervene. Under s 6(3) of the Criminal Appeal Act 1912, it is not enough for an appellant to establish error. The Court must also be satisfied that some other sentence was warranted in law and should have been passed. The Court found that had proper individual sentences been imposed for each offence, the aggregate would have been higher than the sentence actually imposed, not lower. The errors therefore did not disadvantage the appellant.

On manifest excess, the Court acknowledged that some individual sentences within the first group may have been excessive in isolation. However, the critical offence attracting the Form 1 matters was objectively serious, involving persistent wilful dishonesty, a significant breach of trust, and an escalating pattern of conduct. The Court also noted that the appellant had a prior record of trust-related offending against an employer, distinguishing her position from the first-offender cases cited in the comparative sentencing statistics. Those factors, combined with the need for general and specific deterrence, denunciation, and retribution, placed the overall sentence within an appropriate range.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Establishing a legal error in sentencing is not, by itself, sufficient to warrant the Court of Criminal Appeal substituting a different sentence. Under s 6(3) of the Criminal Appeal Act 1912, the appellate court must also be satisfied that some other sentence is warranted in law and should have been passed.
  • Pearce v The Queen requires a sentencing court to fix an appropriate sentence for each individual offence before applying principles of totality and concurrency. A global approach that bypasses this step is an error of principle.
  • Where sentencing errors actually produce a lighter outcome for the offender than correct methodology would have yielded, those errors will not result in a successful appeal.
  • Comparative sentencing statistics carry limited weight where the offending before the court differs materially from the cases in those statistics, particularly where the offender has a prior record of similar conduct.
  • In dismissing the appeal, the Court treated persistent, escalating dishonesty involving forgery and abuse of a position of trust as significant aggravating factors supporting sentences that might otherwise appear high for individual offences.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 300(1), 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Dowd [2005] NSWCCA 113
- R v Hommoud (2000) 118 A Crim R 66
- R v Simpson (2001) 53 NSWLR 704