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9
Court of Criminal Appeal 28 October 2009

Stevens v R

[2009] NSWCCA 260

Also reported as (2009) 262 ALR 91
Fraud & dishonesty
CRIMINAL LAW APPEAL OFFENCES OF DISHONESTY SENTENCE APPEAL APPEAL DISMISSED

Citation: Stevens v R [2009] NSWCCA 260
Court: New South Wales Court of Criminal Appeal
Date: 28 October 2009
Judge(s): Spigelman CJ; McClellan CJ at CL; Grove J

Background

The applicant pleaded guilty in the District Court to 11 counts across two indictments, covering a range of dishonesty offences. These included using a false instrument, possessing false travel documents under Commonwealth law, and obtaining a benefit by deception on multiple occasions. The offending spanned a considerable period and included a brazen bank fraud in 1990 involving sophisticated planning, as well as later passport offences.

Following sentencing in the District Court, the applicant sought leave to appeal to the Court of Criminal Appeal, contending that the total sentence was manifestly excessive. He argued, among other things, that the sentencing judge had failed to give adequate weight to the principle that the severity of a long sentence increases at a greater rate than its numerical length.

The applicant had fled overseas in 1991 to avoid justice in relation to the first indictment offence, and some of the subsequent offending was committed while he was subject to a recognisance for an earlier dishonesty offence.

  • Whether the total sentence of 6 years and 3 months non-parole period (with a balance of term extending to a total of approximately 8 years and 6 months) was manifestly excessive
  • Whether the sentencing judge properly applied the principle of totality when structuring multiple sentences across two indictments
  • Whether sufficient weight was given to the principle that cumulative sentences become more crushing at a rate disproportionate to their length
  • Whether general deterrence carries particular weight in sentencing for identity crimes

Decision

McClellan CJ at CL, with whom Grove J agreed, dismissed the appeal. The Court found that the applicant had not demonstrated that the sentences were unreasonable or plainly unjust, the threshold required to establish manifest excess. The sentencing judge was found to have considered both the individual sentences and the totality of the sentence carefully, and no breach of the principles in Pearce v The Queen was established.

On the "crushing sentence" argument, the Court was not persuaded that the sentencing judge had erred. The offending was described as grossly dishonest and deceptive conduct on a significant scale over a considerable period, compounded by the fact that part of the offending occurred in breach of a recognisance. While the individual and overall sentences were towards the higher end of the identified range, they remained within the permissible range of the sentencing discretion.

Spigelman CJ wrote separately to emphasise the particular importance of general deterrence for identity crimes. His Honour noted that identity crime carries aggravated effects on victims and the wider community beyond those associated with other forms of deception offences. These include damage to creditworthiness, invasion of privacy, and the significant effort victims must expend to restore their position.

Spigelman CJ also observed that the pending Crimes Amendment (Fraud and Forgery) Bill 2009, designed to harmonise New South Wales law with a national model scheme, would introduce more targeted offences and increased maximum penalties for identity crime. His Honour noted that even after those legislative changes take effect, general deterrence will remain a consideration to which particular weight must be given in sentencing for such offences.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that to succeed on a ground of manifest excess, an applicant must demonstrate that the sentence was unreasonable or plainly unjust, not merely that the appellate court might have exercised its discretion differently.
  • Spigelman CJ identified identity crime as a category of offending that warrants particular weight being given to general deterrence in sentencing, distinguishing it from other deception offences by reason of its broader community impact and the indirect harm suffered by victims.
  • The Court noted that identity crime has reached a level of prevalence to which sentencing has always responded, citing technological developments including phishing, exploitation of social networking platforms, and theft of data from computer databases as factors expanding the ease with which such offences can be committed.
  • Pending legislative reform, including increased maximum penalties under the proposed Crimes Amendment (Fraud and Forgery) Bill 2009, was acknowledged but did not diminish the Court's view that general deterrence remains a weighty sentencing consideration under the existing framework.
  • Past sentencing practices for obtaining a benefit by deception under s 178BA of the Crimes Act 1900 were noted to require care when applied to identity crimes, given the additional and aggravated harms associated with that category of offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 300(2)
- Crimes Act 1914 (Cth), s 20(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 22
- Crimes Amendment (Fraud and Forgery) Bill 2009 (NSW)

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v R [2005] HCA 25; (2005) 215 ALR 213
- R v Dinsdale (2000) 202 CLR 321
- JM v R [2008] NSWCCA 254
- Gaffney v R [2009] NSWCCA 160
- R v Clinch (1994) 72 A Crim R 301
- R v Chan [2000] NSWCCA 345
- R v Hawker [2001] NSWCCA 148
- R v JRD [2007] NSWCCA 55
- R v Slater [2001] NSWCCA 65