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Court of Criminal Appeal 29 April 2008

Blundell v R

[2008] NSWCCA 92

Also reported as 70 NSWLR 660
Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE PLEAS OF GUILTY

Citation: Blundell v R [2008] NSWCCA 92
Court: NSW Court of Criminal Appeal
Date: 29 April 2008
Judge(s): Grove J, Hulme J, Simpson J

Background

The appellant was an insurance broker who, together with his brother, had operated a family brokerage business established by their grandfather in 1972. Over 2000 to 2002, he defrauded clients by representing that insurance had been arranged, collecting premiums, and then diverting those funds into business or personal accounts rather than remitting them to insurers. The total amount involved across all offences was approximately $16,920.

The appellant pleaded guilty to four counts of obtaining money by deception and had a further five related offences taken into account on a Form 1 document. Hughes DCJ in the District Court sentenced him to 18 months imprisonment with a non-parole period of six months, with concurrent fixed terms of six months for the remaining counts. The prosecution had not opposed a community service order at the sentencing hearing.

The appellant was 48 at the time of sentencing, had no prior convictions, had ceased working as an insurance broker, offered to make restitution by periodic payments, and had placed $2,000 in a solicitor's trust account. There had also been a delay of approximately five years between the offending and the finalisation of proceedings.

  • Whether the sentencing judge gave adequate recognition to the appellant's subjective circumstances, including his age, prior good character, contrition, and prospects of rehabilitation.
  • Whether the sentencing judge failed to give adequate consideration to non-custodial sentencing options, including community service and periodic detention.
  • Whether the sentencing judge failed to apply the mandatory requirement under s 5(1) of the Crimes (Sentencing Procedure) Act 1999 to consider all possible alternatives before imposing a term of imprisonment.
  • Whether the lengthy five-year delay in finalising the proceedings was a relevant factor that ought to have been taken into account.

Decision

Simpson J, with whom Grove J and Hulme J agreed, held that Hughes DCJ had misdirected himself by failing to properly apply s 5(1) of the Crimes (Sentencing Procedure) Act 1999. That provision requires a court to be satisfied, having considered all possible alternatives, that no penalty other than imprisonment is appropriate before imposing a custodial sentence. While his Honour had expressly rejected a community service order, it was not apparent that he had this statutory injunction in mind when doing so.

Simpson J found that, given the relatively modest amount involved in the offences (approximately $16,920), a penalty other than imprisonment was one appropriate means of dealing with the appellant's criminality. The Court was careful to note that this did not mean a non-custodial order was the only available option, but that the failure to properly consider alternatives constituted an error.

The five-year delay in finalising the proceedings was identified as a further matter that had not been taken into account by the sentencing judge and that ought to have been. No explanation for that delay appeared in the materials before the Court.

The Court of Criminal Appeal directed that a suitability report be prepared under s 86(1) of the Crimes (Sentencing Procedure) Act 1999 before making its orders. That report was positive, and the Court substituted community service orders of 100 hours for each offence in place of the custodial sentences.

Orders Made

  • Leave granted to appeal against the sentences imposed.
  • Each sentence quashed.
  • In respect of each offence, the appellant directed to perform 100 hours of community service work.
  • The appellant directed to report to the NSW Probation and Parole Service within seven days.

Key Takeaways

  • Under s 5(1) of the Crimes (Sentencing Procedure) Act 1999, a court must not impose a sentence of imprisonment unless it has considered all possible alternatives and is satisfied that no other penalty is appropriate. A failure to have this statutory obligation in mind when sentencing constitutes an error.
  • The Court of Criminal Appeal confirmed that expressly rejecting a non-custodial option at sentencing does not, of itself, demonstrate compliance with s 5(1) if it is not apparent the statutory injunction was actually applied.
  • Significant delay between the commission of offences and the finalisation of proceedings is a relevant sentencing consideration. The five-year gap in this case had been entirely overlooked by the sentencing judge.
  • Where the total amount involved in fraud offences is modest, a non-custodial penalty may be an appropriate means of addressing the offending, even where the conduct was planned, organised, and repetitive.
  • The prosecution's non-opposition to community service is a material circumstance that a sentencing court is required to weigh. Its significance is reinforced where other subjective features, such as prior good character, contrition, and low prospects of reoffending, also favour a non-custodial outcome.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178A, 178BA, 178BB
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 8(1), 44(2), 86(1)

Cases: No cases were cited in the judgment text provided.