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Court of Criminal Appeal 15 May 2009

Camm v R

[2009] NSWCCA 141

Fraud & dishonesty

Citation: Camm v R [2009] NSWCCA 141
Court: New South Wales Court of Criminal Appeal
Date: 15 May 2009
Judge(s): Spigelman CJ, James J, Simpson J

Background

The appellant was convicted after a joint trial on a charge of conspiring to dishonestly obtain a gain from ATSIC, a Commonwealth entity providing loans to Aboriginal and Torres Strait Islander persons. The conspiracy involved submitting a fraudulent loan application for $2.8 million, supported by a falsely inflated purchase price for a rural property and a sham valuation arrangement. The appellant, a real estate agent, was drawn into the scheme by a co-conspirator and in turn recruited a licensed valuer to provide a "suitable" valuation.

Several co-conspirators were involved: one received an indemnity in exchange for giving evidence at trial, two pleaded guilty shortly before trial to a lesser charge under a different provision of the Criminal Code Act 1995 (Cth), and one was acquitted by the jury. The appellant and one other were convicted following the trial. All were sentenced by Judge Goldring in the District Court, except one co-offender who was permitted to be sentenced by a different judge due to concerns about fairness arising from evidence he had not had the opportunity to challenge.

Judge Goldring sentenced the appellant to four years' imprisonment with a non-parole period of two and a half years. The appellant sought leave to appeal against that sentence on several grounds, including parity with co-offenders, alleged error in the sentencing judge's factual findings, and the failure to treat delay as a mitigating factor.

  • Whether the appellant's sentence was disproportionately harsh compared to the sentences received by co-offenders, giving rise to a justified grievance under the parity principle
  • Whether the sentencing judge erred in making findings of fact adverse to the appellant, in circumstances where those findings were based on evidence from the trial
  • Whether the sentencing judge erred by failing to treat the staleness of the offence or delay in prosecution as a mitigating factor

Decision

On the parity ground, the Court accepted that any apparent disparity between the appellant's sentence and those of his co-offenders was explained by prosecutorial decisions, not by any error in sentencing. Watson and Godfrey pleaded guilty to a less serious offence under a different provision, and the Crown accepted those pleas in full discharge of the proceedings. The difference in charges, and therefore in sentences, was a product of the plea bargaining process rather than any unjustified differentiation in how the sentencing court treated the appellant compared with his co-conspirators.

On the factual findings ground, the Court found no error in the sentencing judge relying on findings drawn from evidence given at trial. The appellant had the opportunity to challenge that evidence during the trial itself. The Court was not persuaded that the sentencing judge had made findings inconsistent with the jury's verdict or otherwise impermissible.

On the delay ground, the Court acknowledged the general principle that staleness of an offence can be a relevant mitigating factor even where there has been no culpable delay by authorities. However, it found that the lapse of time in this case was not of sufficient magnitude to require the sentencing judge to treat it as a mitigating factor. The Court also noted that no oral submission on this point had been made to the sentencing judge. Accordingly, no error was established.

All five grounds of appeal were rejected, including a final ground that simply asserted a different, less severe sentence was warranted, which the Court treated as an invalid standalone ground of appeal.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentence dismissed

Key Takeaways

  • The parity principle does not automatically entitle a convicted offender to a lesser sentence merely because co-offenders received lighter penalties; where the difference flows from prosecutorial decisions about which charges to accept in a plea, there is no justified grievance
  • A sentencing judge is entitled to make factual findings based on evidence from a trial at which the offender had the opportunity to challenge that evidence, even where those findings go beyond what the jury verdict strictly establishes
  • Staleness of an offence can be a mitigating sentencing factor even in the absence of any culpable delay by prosecuting authorities, but the principle applies where the lapse of time is substantial; the Court of Criminal Appeal found the time elapsed in this case was insufficient to trigger any such reduction
  • In dismissing the appeal, the Court confirmed that a ground of appeal which does no more than assert a lesser sentence should have been imposed, without identifying a specific error, is not a valid ground of appeal under the Criminal Appeal Act 1912
  • Apparent sentencing disparity between co-offenders charged under different provisions of the same statute warrants careful analysis of the reasons for the difference before a court will conclude that a legitimate grievance has been made out

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), ss 135.1(1), 135.4(1)
- Commonwealth Crimes Act
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Lowe v The Queen (1984) 154 CLR 606
- Postiglione v The Queen (1996) 189 CLR 295
- R v Todd (1982) 2 NSWLR 517
- R v Merritt (2004) 59 NSWLR 557
- R v Formosa [2005] NSWCCA 363
- R v Kerr [2003] NSWCCA 234
- R v Khouzame [2000] NSWCCA 505
- R v O'Donoghue (1988) 34 A Crim R 397
- Pham v R [2009] NSWCCA 25
- Yin v R [2007] NSWCCA 350