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Court of Criminal Appeal 13 February 2009

MARKS, Simon Christopher v R

[2009] NSWCCA 24

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL EARLY GUILTY PLEA WHETHER THE TRIAL JUDGE ERRED IN RE SENTENCING THE OFFENDER LEAVE TO APPEAL GRANTED

Citation: MARKS, Simon Christopher v R [2009] NSWCCA 24
Court: NSW Court of Criminal Appeal
Date: 13 February 2009
Judges: McClellan CJ at CL, Hall J, Harrison J

Background

The applicant pleaded guilty in the Local Court to five charges of dishonestly obtaining a financial advantage by deception, contrary to s 178BA(1) of the Crimes Act 1900. The offences involved amounts ranging from approximately $26,000 to $59,400 being credited to company bank accounts through deception, with a fifth charge involving an attempted fraud of approximately $118,800. The applicant was committed to the District Court for sentence.

The District Court judge sentenced the applicant in April 2007 and then re-opened the proceedings on 1 June 2007 under s 43 of the Crimes (Sentencing Procedure) Act 1999 to correct an error in implementation. The revised sentences produced an aggregate term of 5 years, with an aggregate non-parole period of approximately 3 years and 9 months. The applicant, appearing in person on the appeal, challenged those sentences on multiple grounds.

  • Whether the sentencing judge erred by failing to consider aggravating factors separately in relation to each individual charge
  • Whether the sentencing judge failed to give adequate weight to significant mitigating factors, including mental illness, assistance given to authorities, contrition, and rehabilitation
  • Whether the overall sentence was manifestly excessive, having regard to the degree to which the individual sentences were accumulated (that is, stacked on top of one another rather than fully concurrent)
  • Whether the sentencing judge erred in re-opening proceedings to re-sentence the applicant

Decision

The Court of Criminal Appeal found that the sentencing judge had not adequately taken into account several significant mitigating factors, including the applicant's mental illness, the assistance he provided to authorities, his contrition, and his rehabilitation. These factors warranted a materially lower sentence than that imposed. The Court was satisfied that a less severe sentence was warranted in law.

On the question of accumulation, the Court found that the extent to which the individual sentences had been stacked produced an aggregate that was manifestly excessive in the circumstances. The Court conducted its own re-sentencing, substantially reducing the aggregate term.

The challenge to the re-opening of proceedings was rejected. The Court held that the District Court judge had done no more than correct a mistaken failure to implement the sentence he had foreshadowed, and the revised sentence was not more onerous than the original. No error arose from that re-sentencing.

The appeal was allowed unanimously, with Harrison J delivering the principal judgment and McClellan CJ at CL and Hall J agreeing.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentences imposed by Nield DCJ on 1 June 2007 quashed
  • New sentences imposed, producing an aggregate of 3 years and 5 months (commencing 23 January 2007, expiring 22 June 2010), with an aggregate non-parole period of 2 years and 9 months (expiring 22 October 2009) and a balance of term of 6 months (expiring 22 April 2010):
  • Charge 1: 1 year 8 months (NPP 1 year 2 months), commencing 23 January 2007
  • Charge 2: 1 year 11 months (NPP 1 year 4 months), commencing 23 April 2007
  • Charge 3: 1 year 11 months (NPP 1 year 4 months), commencing 23 July 2007
  • Charge 4: 2 years 8 months (NPP 2 years), commencing 23 October 2007
  • Charge 5: 1 year 6 months (NPP 1 year), commencing 23 October 2008

Key Takeaways

  • Sentencing courts must give meaningful, individualised consideration to mitigating factors such as mental illness, assistance to authorities, contrition, and rehabilitation; a failure to do so can constitute error on appeal.
  • The degree to which multiple sentences are accumulated is a proper subject of appellate review, and an aggregate term can be manifestly excessive even where each individual sentence might not be.
  • Re-opening a sentence under s 43 of the Crimes (Sentencing Procedure) Act 1999 to correct an implementation error does not constitute appellable error where the corrected sentence is no more onerous than the sentence originally intended.
  • An early guilty plea remains a relevant mitigating factor that must be factored into each sentence across multiple charges.
  • The Court of Criminal Appeal confirmed its power to quash the original sentences and substitute new, lower sentences where the aggregate is found to be disproportionate in light of overlooked mitigating considerations.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 43
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Assi v R [2006] NSWCCA 257
- Le v R [2006] NSWCCA 136
- R v Fisher [2001] NSWCCA 143
- R v Henry [1999] NSWCCA 111; (1999) 46 NSWLR 346
- R v Holder [1983] 3 NSWLR 245
- R v Huang; R v Siu [2007] NSWCCA 259; (2007) 174 A Crim R 370
- R v McDonald [1994] FCA 956; (1994) 71 A Crim R 370
- R v Sandford (Court of Criminal Appeal, 7 March 1994, unreported)
- R v Todorovic [2008] NSWCCA 49
- R v Tomich [2002] NSWCCA 175; (2002) 127 A Crim R 234
- Scanlan v R [2006] NSWCCA 238