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Court of Criminal Appeal 20 October 2008

Heller v R

[2008] NSWCCA 241

Fraud & dishonestyPublic order & justice offences

Citation: Heller v R [2008] NSWCCA 241
Court: New South Wales Court of Criminal Appeal
Date: 20 October 2008
Judge(s): McClellan CJ at CL, Simpson J, Hislop J (all agreeing)

Background

The appellant had worked as a financial officer at a company from 2001 to 2005, during which time she systematically misappropriated $434,934.37 through a variety of deceptions: redirecting payments to her own accounts, fabricating payroll entries, and creating payments to fictional employees. These offences occurred while she was on bail for similar fraud committed during earlier employment as a bookkeeper, in which she had diverted $288,184.09 in company cheques.

To postpone sentencing on the earlier fraud charges, the appellant submitted three fabricated medical reports to the court between 2003 and 2004, claiming she required urgent surgery for a cerebral aneurism. The reports were entirely false, prepared by the appellant herself, with forged signatures. No medical condition of that kind existed.

In the District Court, Sorby DCJ sentenced the appellant across multiple sequences of charges, producing an effective overall sentence of eight years imprisonment, comprising a non-parole period of five and a half years and a balance of term of two and a half years. The appellant sought leave to appeal that sentence.

  • Whether the sentencing judge failed to properly apply the totality principle, taking into account the sentence the appellant was already serving
  • Whether the sentences imposed for the perverting the course of justice offences were manifestly excessive
  • Whether the overall effective sentence was manifestly excessive

Decision

The Court of Criminal Appeal rejected all three grounds of appeal and dismissed the appeal, with leave granted.

On the totality ground, the Court found that the sentencing judge had correctly considered the sentences already being served and had appropriately structured the new sentences to run consecutively in a way that reflected the overall criminality without creating a crushing total. No error in the application of the totality principle was established.

On the perverting the course of justice sentences, the Court noted the serious aggravating features: the offences were premeditated, involved multiple fabricated documents with forged signatures, and successfully delayed court proceedings on three separate occasions. The offences carried a maximum of 14 years imprisonment. Given the objective gravity of the conduct, the Court found the sentences were not manifestly excessive.

On the overall sentence, the Court reviewed the sentencing discretion exercised below and found it fell within the legitimate range. It applied the well-established principle that an appellate court will only intervene if error is shown and the court forms the positive opinion that a less severe sentence should have been passed. Neither condition was satisfied.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that appellate intervention on sentence requires both demonstrated error by the sentencing judge and a positive finding that a less severe sentence was warranted in law.
  • Fabricating and tendering false medical documents to obtain court adjournments constitutes a serious form of perverting the course of justice, particularly where the conduct is repeated and premeditated.
  • Committing fraud offences while on bail for earlier, similar offences is a significant aggravating factor that a sentencing court is entitled to weigh heavily.
  • In dismissing the totality ground, the Court found the sentencing structure appropriately reflected the entirety of the appellant's criminality across two discrete periods of serious dishonesty.
  • No error was established merely because the cumulative sentence was lengthy; the effective eight-year sentence was upheld as within the range open to the sentencing judge given the scale, duration, and nature of the offending.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178BA(1), 300(2), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Mill v The Queen (1988) 166 CLR 59
- Johnson v The Queen (2004) 78 ALJR 616
- R v AEM [2002] NSWCCA 558
- R v Postiglione (1995-1996) 189 CLR 295
- Cahyardi v R [2007] NSWCCA 1
- R v Hammoud (2000) 118 A Crim R 66
- R v Gordon (1994) 71 A Crim R 459
- Pearce v R (1998) 194 CLR 610
- R v Bloomfield (1998) 44 NSWLR 734
- Wong v R (2001) 207 CLR 584
- R v Zamagias [2002] NSWCCA 17
- Markarian v R (2005) 79 ALJR
- R v Mungomery (2004) 151 A Crim R 376
- R v Simpson (2001) 53 NSWLR 704