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Court of Criminal Appeal 25 March 2008

BLUNDELL, Paul John v R (Cth)

[2008] NSWCCA 63

Also reported as 70 NSWLR 660
Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE FRAUDULENT MISAPPROPRIATION PLEA OF GUILTY PRINCIPLE OF PARSIMONY

Citation: BLUNDELL, Paul John v R (Cth) [2008] NSWCCA 63
Court: NSW Court of Criminal Appeal
Date: 25 March 2008
Judge(s): Grove J, Hulme J, Simpson J

Background

The applicant operated an insurance brokerage business in partnership with his brother. Over a period of a few months in 2002, he represented to clients that insurance cover had been arranged, collected premiums totalling approximately $146,000, but then diverted the funds into business or personal accounts rather than remitting them to insurers. The clients, which included a recreational club and a hotel operator, were left effectively uninsured.

The applicant was charged with three counts of fraudulent misappropriation under s 178A of the Crimes Act 1900 (NSW), which carries a maximum penalty of seven years' imprisonment. He pleaded guilty in the District Court approximately five years after the offences were committed. Hughes DCJ sentenced him on 13 July 2007 to an effective term of 18 months' imprisonment with a non-parole period of nine months.

The applicant's brother, Richard Blundell, faced similar charges arising from the same brokerage business but involving different clients and a far smaller total sum of approximately $17,000. The brother ultimately received a community service order of 100 hours on appeal. The applicant sought leave to appeal against his sentence on the basis that it was manifestly excessive, having regard particularly to the five-year delay between offending and sentencing and the disparity with his brother's outcome.

  • Whether Hughes DCJ erred in imposing a full-time custodial sentence given the five-year delay between the offending and sentencing
  • Whether the applicant's sentence was disproportionate by comparison with the lesser sentence ultimately imposed on his brother
  • Whether the principle of parsimony applied so as to require a lesser sentence
  • Whether the unavailability of community service orders or periodic detention (because the applicant resided in Queensland) constituted an error in sentencing

Decision

Simpson J, with Grove and Hulme JJ agreeing, dismissed the appeal. Her Honour found that the disparity between the applicant's sentence and that of his brother did not engage the parity principle in the strict legal sense, because the two brothers faced charges involving different clients and vastly different sums. The applicant's fraud involved $146,000, compared with his brother's $17,000, and fraud of such magnitude could not properly be met with anything less than a full-time custodial sentence.

On the five-year delay, Hulme J observed that, while the lapse of time between offending and sentencing carried hallmarks of injustice, the option to plead guilty to the charges had been available to the applicant throughout that period. The applicant had deferred his guilty plea until his brother's related charges were dealt with in 2006. The delay was, at least in significant measure, attributable to the applicant himself.

The Court also addressed the unavailability of community service orders and periodic detention. Because the applicant resided in Queensland, Hughes DCJ had been unable to impose either alternative. The Court found this limitation did not constitute error on the sentencing judge's part; given the constrained options available, the sentence imposed could not be impugned.

Simpson J also expressly declined to endorse a broad "principle of parsimony" as a freestanding sentencing principle, a position expressly affirmed by Grove J.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed
  • Applicant directed to be released on parole at the expiration of the non-parole period (eligible 11 November 2008, with the total sentence to expire 11 August 2009)

Key Takeaways

  • The Court of Criminal Appeal confirmed that the parity principle (derived from Lowe v The Queen and Postiglione v The Queen) does not automatically apply where co-accused committed formally similar offences but against different victims and for materially different amounts.
  • A five-year gap between offending and sentencing does not automatically reduce the appropriate sentence where the delay is substantially attributable to the applicant's own decision to defer a guilty plea.
  • Where an applicant resides interstate, the unavailability of community service orders or periodic detention as sentencing options does not of itself constitute error by the sentencing judge.
  • Fraud totalling $146,000 was found to warrant a full-time custodial sentence; the scale of the defalcation was a significant factor distinguishing the applicant's position from that of his brother.
  • Simpson J, with Grove J expressly agreeing, declined to treat parsimony as a freestanding sentencing principle capable of requiring a sentence below what is otherwise appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 178A (fraudulent misappropriation)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), 50(1)

Cases
- Lowe v The Queen [1984] HCA 46; 154 CLR 606
- Postiglione v The Queen [1997] HCA 26; 189 CLR 295
- DB v R; DNN v R [2007] NSWCCA 27
- Kelly v The Queen [2007] NSWCCA 357
- R v PP [2003] VSCA 100; 142 A Crim R 369
- R v Storey [1998] 1 VR 359