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5
Court of Criminal Appeal 5 November 2008

JM v R

[2008] NSWCCA 254

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEAL AGAINST SEVERITY OF SENTENCE SERIES OF OFFENCES USE FALSE INSTRUMENT DISPOSAL OF STOLEN PROPERTY ADDITIONAL OFFENCES

Citation: JM v R [2008] NSWCCA 254
Court: NSW Court of Criminal Appeal
Date: 5 November 2008
Judge(s): McClellan CJ at CL, Nettle AJA, Simpson J

Background

The applicant pleaded guilty in the District Court to five charges involving a sophisticated fraud scheme: three counts of using a false instrument and two counts of disposing of stolen property. He also admitted to 46 additional offences on a Form 1, including obtaining benefits by deception and stealing. The offences were committed over roughly 21 months from March 2004 to December 2005, as part of an organised criminal enterprise that used false identities and documentation to obtain goods on credit before disappearing with the property without payment.

The sentencing judge imposed a cumulative head sentence of 7 years imprisonment, with a non-parole period of 4 years and 3 months. A 40 percent discount was applied, reflecting guilty pleas and the applicant's past assistance to authorities. That assistance included providing an induced statement that formed part of the prosecution brief against several co-offenders, most of whom ultimately pleaded guilty.

The applicant sought leave to appeal against the severity of the sentence. His sole ground was that fresh evidence had emerged showing his cooperation had greater significance than the sentencing judge appreciated, and that the discount should have extended to his offered future assistance as well.

  • Whether fresh evidence about the significance of the applicant's assistance to police warranted a greater sentencing discount than the 40 percent allowed by the sentencing judge
  • Whether the sentencing judge erred in declining to allow a discount for the applicant's offered future cooperation, in part because defence counsel had characterised the prospect of that cooperation being required as "remote"
  • Whether any further reduction in sentence would produce a result unreasonably disproportionate to the nature and circumstances of the offending under section 23(3) of the Crimes (Sentencing Procedure) Act 1999

Decision

The Court of Criminal Appeal accepted that the sentencing judge had proceeded on a mistaken basis. The characterisation of the prospect of future cooperation as "remote" was not supported by Exhibit B, a confidential affidavit from a senior police officer that anticipated further prosecutions and identified the applicant's information as potentially opening up a previously unlikely prosecution against an uncharged co-offender. That co-offender was subsequently charged and pleaded guilty, with the applicant's induced statement forming part of the brief. The concession made by defence counsel at sentencing, and accepted by the judge, misrepresented the actual evidentiary position.

Despite identifying this error, the Court held that the appeal still had to be dismissed. Under section 23(3) of the Crimes (Sentencing Procedure) Act 1999, any lesser penalty imposed for cooperation must not be unreasonably disproportionate to the nature and circumstances of the offence. The investigating officer's own assessment of the value of the applicant's assistance was "low to moderate," a characterisation that was not challenged. The Court accepted the Crown's submission that, given the magnitude, duration, and complexity of the offending and the value of property involved, any sentence below that imposed would be inadequate and would conflict with section 23(3).

Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge's refusal to allow a discount for offered future cooperation can constitute an error where that refusal rests on a concession by defence counsel that is inconsistent with the evidence before the court.
  • Under section 23(3) of the Crimes (Sentencing Procedure) Act 1999, a sentence reduced for cooperation must not be unreasonably disproportionate to the nature and circumstances of the offence, and this provision operates as a practical floor below which the discount cannot take the sentence.
  • Two distinct components of cooperation attract potential discounts: providing information to authorities, and giving (or offering to give) evidence, the latter carrying greater exposure and potentially warranting a more significant reduction.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that identifying a sentencing error does not automatically produce a different outcome where the statutory proportionality requirement independently sustains the original sentence.
  • The independently assessed value of the assistance, even where it produces tangible results such as additional guilty pleas, remains a relevant consideration, and a "low to moderate" assessment can limit the available discount regardless of the practical outcomes of that cooperation.

Legislation and Cases Referenced

Legislation
- Crimes (Sentencing Procedure) Act 1999 (NSW), including Part 3, Division 3 and section 23(3)

Cases
- R v Willard [2001] NSWCCA 6
- Application of Antoun El Hani [2007] NSWSC 330
- R v Scullion (unreported, NSWCCA, 15 July 1992)
- R v MJM [2004] NSWCCA 66