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Court of Criminal Appeal 15 May 2009

Pfeiffer v R

[2009] NSWCCA 145

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE APPLICANT IN VERY POOR HEALTH APPEAL DISMISSED

Citation: Pfeiffer v R [2009] NSWCCA 145
Court: NSW Court of Criminal Appeal
Date: 15 May 2009
Judge(s): McClellan CJ at CL, Simpson J, Buddin J

Background

The appellant was a skilled antique furniture maker who operated his business through entities registered in his wife's name while he was an undischarged bankrupt. Between September 1999 and March 2001, he obtained approximately $368,000 from a couple intending to purchase custom-made furniture for their home, without ever disclosing his bankruptcy to them. The customers received only around 15% of the goods they had paid for.

On the ninth day of his jury trial, the appellant pleaded guilty to one count of supplying goods and services without disclosing his undischarged bankruptcy, contrary to s 269(1)(ad) of the Bankruptcy Act 1966 (Cth). A separate offence of seeking credit without disclosing his bankruptcy was taken into account on a Form 1 (a procedural mechanism allowing a court to consider additional related offences when sentencing, without recording separate convictions for them). The maximum penalty for each offence was three years' imprisonment.

The District Court sentenced the appellant to two years and nine months' imprisonment, with release after 18 months on a recognisance. The appellant sought leave to appeal, arguing the sentence was manifestly excessive due to several errors by the sentencing judge.

  • Whether the sentencing judge failed to give adequate weight to the appellant's serious health problems as a relevant subjective circumstance
  • Whether the sentencing judge erred in the approach taken to the appellant's previous good character and lack of criminal antecedents
  • Whether the resulting sentence was manifestly excessive

Decision

The Court of Criminal Appeal granted leave to appeal and upheld the appeal, finding the original sentence was excessive when the appellant's personal circumstances were properly weighed. McClellan CJ at CL, with whom Simpson J and Buddin J agreed, conducted a review of comparable sentencing decisions to identify the appropriate range.

The comparable cases reviewed involved multiple offences, multiple victims, or significant criminal histories. The Court noted that the appellant faced only one principal offence with a Form 1 matter, had no relevant criminal history, and was in serious ill health. These factors, properly applied, warranted a more modest sentence than the one imposed.

The Court concluded that a non-parole period of 12 months was appropriate, with a total term of two years' imprisonment. The original non-parole period of 18 months and total term of two years and nine months were found to be disproportionate given the appellant's circumstances.

Orders Made

  • Leave to appeal granted and the appeal upheld
  • The District Court sentence quashed
  • In lieu of the original sentence, the appellant sentenced to two years' imprisonment commencing 20 June 2008 and expiring 19 June 2010
  • Pursuant to s 20(1)(b) of the Crimes Act 1914, the appellant ordered to be released on 19 June 2009 upon provision of security of $1,000, to be of good behaviour for three years

Key Takeaways

  • A sentencing court must give proper weight to serious ill health and lack of relevant criminal history when assessing the appropriate term of imprisonment, even for offences involving significant financial harm to victims.
  • The Court of Criminal Appeal confirmed that comparable cases involving multiple offences, multiple victims, or substantial criminal histories will not translate directly into sentencing benchmarks for a single-offence matter with a Form 1.
  • Where a sentencing judge fails to give adequate weight to established subjective circumstances, the resulting sentence may be characterised as manifestly excessive and susceptible to appellate intervention.
  • In substituting the sentence, the Court reduced both the non-parole period (from 18 months to 12 months) and the total term (from two years and nine months to two years), reflecting the limited scope of the offending as charged and the appellant's personal circumstances.
  • Under s 269(1) of the Bankruptcy Act 1966 (Cth), the maximum penalty for supplying goods or services, or seeking credit, without disclosing an undischarged bankruptcy is three years' imprisonment; the substituted sentence of two years reflects a serious but not worst-case instance of such offending.

Legislation and Cases Referenced

Legislation:
- Bankruptcy Act 1966 (Cth), ss 269(1)(a) and 269(1)(ad)
- Crimes Act 1914 (Cth), s 20(1)(b)

Cases:
- Paragalli v R [2006] NSWCCA 87
- R v Halls & Halls [2002] NSWCCA 55; (2002) 127 A Crim R 209
- R v Miranda [2002] NSWCCA 89; (2002) 128 A Crim R 362
- Ryan v The Queen (2001) 206 CLR 267
- Storen v The Queen (1993) 115 FLR 210