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Court of Criminal Appeal 19 November 2008

BRAUN v REGINA

[2008] NSWCCA 269

Also reported as (2008) 190 A Crim R 497
Fraud & dishonesty
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE WHETHER TOTAL SENTENCES AND NON TIME CUSTODY

Citation: Braun v Regina [2008] NSWCCA 269
Court: New South Wales Court of Criminal Appeal
Date: 19 November 2008
Judge(s): McClellan CJ at CL, Hall J, Harrison J

Background

The appellant pleaded guilty in the District Court to six counts of market misconduct under s 1041G of the Corporations Act 2001 (Cth) and two counts of making or using a false instrument under s 300(1) of the Crimes Act 1900 (NSW). The offences involved both Commonwealth and State criminal liability, requiring the sentencing judge to navigate two distinct sentencing regimes operating concurrently.

Importantly, the appellant did not obtain a direct financial benefit from his conduct. The District Court sentenced him to a total effective term of approximately three years and three months imprisonment, with the effective non-parole period running to around two years and five months, depending on how the staggered commencement dates were interpreted.

The appellant sought leave to appeal against the severity of the sentence, raising multiple grounds including manifest excess, error in rejecting alternatives to full-time custody, and failure to apply the principles from Pearce v The Queen.

  • Whether the total sentences and the effective non-parole period were manifestly excessive
  • Whether the sentencing judge erred in finding that full-time custody was the only available sentencing option
  • Whether the sentencing judge properly assessed the objective seriousness of the offences
  • Whether the sentencing judge properly considered the appellant's subjective circumstances
  • Whether the sentencing judge failed to apply the Pearce principles by not first fixing individual sentences for each offence before considering totality

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal, but on limited grounds. On the central question of whether full-time imprisonment was appropriate, the Court found that the gravity of the offences and the appellant's culpability were such that full-time custody was the only appropriate sentencing option. The submissions urging a non-custodial or suspended sentence were rejected.

On the Pearce ground, however, the Court found that the sentencing judge had erred. The judge had failed to consider and fix individual sentences for each offence before stepping back to address overall totality. That failure constituted an error of principle requiring the Court to resentence.

The Court also found that the effective non-parole period imposed was manifestly excessive. Although the individual sentences were broadly within range, the combined effect of the staggered commencement dates produced a non-parole period that was disproportionate to the overall criminality and the appellant's circumstances, including the absence of direct personal gain.

On resentencing, the Court restructured the sentences so that the State and Commonwealth offences ran in a way that produced a total effective period of two years and eight months, with the appellant becoming eligible for release on 24 March 2010.

Orders Made

  • Leave to appeal granted
  • Appeal upheld
  • District Court orders of 25 July 2008 set aside
  • In substitution, the following sentences imposed:
  • Two concurrent fixed terms of nine months for the two Crimes Act 1900 (NSW) offences, commencing 25 July 2008 and expiring 24 April 2009
  • Four concurrent terms of two years and six months for the primary Corporations Act 2001 (Cth) offences (sequence numbers 1, 2, 4 and 6), commencing 25 September 2008 and expiring 24 March 2011, each with a recognisance release order operating from 24 March 2010
  • Two concurrent terms of one year and six months for the remaining Corporations Act offences (sequence numbers 3 and 5), commencing 25 September 2008 and expiring 24 March 2010
  • Total effective custodial period: two years and eight months from 25 July 2008
  • Earliest eligible release date: 24 March 2010

Key Takeaways

  • Where an offender faces both Commonwealth and State charges sentenced together, the court must navigate two distinct sentencing regimes, and the interaction of staggered commencement dates can materially affect the practical non-parole period.
  • A failure to fix individual sentences for each offence before considering totality constitutes an error of principle under Pearce v The Queen, sufficient to vitiate the original sentence and require resentencing.
  • The Court of Criminal Appeal confirmed that even in serious white collar offending, the absence of direct personal financial gain is a relevant mitigating factor when calibrating the non-parole period, even if it does not avoid full-time imprisonment.
  • Full-time custody remained the only appropriate sentencing option given the objective gravity of market misconduct offences under s 1041G of the Corporations Act 2001 and offences involving false instruments under s 300(1) of the Crimes Act 1900.
  • The decision contains a survey of sentencing outcomes in comparable white collar crime cases, offering a reference point for understanding the range applied in NSW courts at that time.

Legislation and Cases Referenced

Legislation:
- Corporations Act 2001 (Cth), s 1041G
- Crimes Act 1900 (NSW), s 300(1)
- Crimes Act 1914 (Cth), s 19AC
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Regina v Rivkin [2004] NSWCCA 7; (2004) 59 NSWLR 284
- Regina v Thomson & Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 403
- Regina v Simpson [2001] NSWCCA 534; (2001) 53 NSWLR 704
- Regina v Adler [2005] NSWSC 274; (2005) 53 ACSR 471
- Regina v Williams [2005] NSWSC 315; (2005) 216 ALR 113
- Regina v Fodera [2007] NSWSC 1194; (2007) 65 ACSR 109
- Regina v Cooper [2006] NSWSC 609; (2006) 58 ACSR 83
- Regina v Mo [2007] NSWCCA 61; (2007) 169 A Crim R 60
- Boskovitz v The Queen [1999] NSWCCA 437
- Higgins v Regina [2006] NSWCCA 38
- RE v Crown [2005] NSWCCA 429
- Regina v Boulden [2006] NSWSC 1274
- Regina v Cassidy [2005] NSWSC 410
- Regina v Corbett (1991) 52 A Crim R 112
- Regina v Lemene [2001] NSWCCA 5
- Regina v Pantano (1990) 49 A Crim R 328
- Regina v Zamagias [2002] NSWCCA 17