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Court of Criminal Appeal 10 February 2009

Burnard v R, R v Burnard

[2009] NSWCCA 5

Also reported as (2009) 193 A Crim R 23
Fraud & dishonesty

Citation: Burnard v R, R v Burnard [2009] NSWCCA 5
Court: NSW Court of Criminal Appeal
Date: 10 February 2009
Judge(s): Tobias JA, James J, Price J

Background

The accused was a director of a company operating within a corporate group that promoted and distributed financial products, including promissory notes issued by property development entities known as "mezzanine companies." Between approximately July 2003 and November 2004, he made and published statements to various individuals representing himself as a director of "Kebbel Investment Bank," an entity that did not exist. He did so with the intent of obtaining monetary investments for the mezzanine companies.

A District Court jury found the accused guilty on all nine charges brought under s 178BB of the Crimes Act (NSW), which makes it an offence to make or publish a statement known to be false in a material particular with intent to obtain a financial advantage for another person. The trial was prosecuted by the Commonwealth Director of Public Prosecutions notwithstanding that the charges were laid under New South Wales legislation.

At sentencing, Judge Charteris imposed four concurrent 12-month suspended sentences (on counts 3, 6, 7 and 9) together with fines totalling $50,000 (on counts 1, 2, 4, 5 and 8). The Crown appealed the sentences as inadequate, and the accused separately appealed his conviction.

  • Whether the conviction on all nine counts was sound and should be upheld on appeal.
  • Whether the sentences imposed by the sentencing judge, including the use of fully concurrent suspended sentences and fines, were manifestly inadequate or otherwise in error.
  • Whether the Court of Criminal Appeal should exercise its discretion to dismiss the Crown appeal against sentence, even if error in sentencing were established.

Decision

The Court unanimously dismissed the appeal against conviction, accepting that the evidence adduced at trial was capable of supporting the jury's verdicts on all nine charges.

On the Crown appeal against sentence, the Court considered whether the sentencing judge had erred in the approach taken to totality and in imposing suspended sentences across multiple counts. The Court's reasoning addressed both the merits of the sentencing and the broader discretionary considerations relevant to Crown appeals.

The Court placed significant weight on the circumstances that had developed since sentence was passed. The accused had been at liberty on bail throughout the trial and had remained at liberty after sentencing. During that period, he had taken concrete steps toward rehabilitation by retraining in environmental consulting, completing professional auditing courses, and obtaining associate membership of a relevant industry body. ASIC had also moved to permanently ban him from the financial services industry, effectively foreclosing any return to his former occupation.

Applying the principle from Everett v The Queen (1994) 181 CLR 295, the Court noted that the deep-rooted notions of fairness underlying the common law principle against double jeopardy require Crown appeals to be granted only in rare and exceptional cases. That principle carries particular force where a sentencing order has led the offender to be released, to resume a place in the community, and to embark on a path of rehabilitation. Any meaningful resentencing would now require actual imprisonment, which the Court regarded as a further consideration weighing against intervention. In the exercise of its discretion, the Court dismissed the Crown appeal.

Orders Made

  • Appeal against conviction dismissed.
  • Crown appeal against sentence dismissed in the exercise of the Court's discretion.

Key Takeaways

  • A Crown appeal against sentence should be granted only in rare and exceptional cases, consistent with the principle against double jeopardy articulated by the High Court in Everett v The Queen.
  • Where a sentencing order has had the practical effect of releasing an offender into the community, and the offender has since taken genuine steps toward rehabilitation, those circumstances carry substantial weight in the Court of Criminal Appeal's discretionary assessment.
  • The fact that any meaningful resentencing would require the imposition of actual imprisonment, in circumstances where the offender has been at liberty for an extended period, is a relevant consideration militating against intervention.
  • Under s 178BB of the Crimes Act (NSW), the offence of making or publishing a false statement with intent to obtain a financial advantage for another can be established by proof that the accused knew a material particular in the statement was false, even where the accused held a genuine role in a related corporate entity.
  • In dismissing both appeals, the Court of Criminal Appeal confirmed that the exercise of the sentencing discretion, including the use of concurrent suspended sentences across multiple counts, did not warrant appellate correction once the full discretionary picture, including post-sentence conduct, was taken into account.

Legislation and Cases Referenced

Legislation
- Crimes Act (NSW), s 178BB
- Crimes (Sentencing Procedure) Act (NSW), s 12
- Banking Act
- Corporations Act
- Evidence Act

Cases
- Everett v The Queen (1994) 181 CLR 295
- Doney v The Queen (1990) 171 CLR 207
- Festa v The Queen (2001) 208 CLR 593
- Jones v The Queen (1997) 191 CLR 439
- M v The Queen (1994) 181 CLR 487
- MFA v The Queen (2002) 213 CLR 606
- Pearce v The Queen (1998) 194 CLR 610
- R v JRD [2007] NSWCCA 55
- R v Petroulias (2005) 62 NSWLR 663
- R v Wall [2002] NSWCCA 42
- R v Weldon (2002) 136 A Crim R 55
- R v Zamagias [2002] NSWCCA 17