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Court of Criminal Appeal 11 March 2009

Cooper v R

[2009] NSWCCA 57

Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE SENTENCE BRIBERY AND FALSE STATEMENTS

Citation: Cooper v R [2009] NSWCCA 57
Court: NSW Court of Criminal Appeal
Date: 11 March 2009
Judge(s): Grove J (principal judgment), Blanch J, Johnson J (both agreeing)

Background

The appellant was convicted by jury on 13 counts following his involvement in a scheme connected to the collapse of the HIH insurance group. Counts 1 to 6 were bribery offences under s 249B(2) of the Crimes Act 1900, arising from corrupt cash payments made to a senior HIH officer in exchange for that officer showing favour to the appellant's associated companies in processing their insurance claims. Counts 7 to 13 were false statement offences under s 178BB(1) of the same Act, involving the publication of statements the appellant knew to be false, with intent to obtain financial advantage for his companies.

The bribery arrangement began in December 2000 when the appellant met the HIH officer at a Balmain hotel and offered cash and employment in exchange for assistance with claims. Both parties were aware that HIH was in serious financial difficulty. A series of cash payments followed, totalling substantial sums, passed at various Sydney locations including hotel meetings and a drive in the appellant's Ferrari.

James J sentenced the appellant in the Supreme Court on 23 June 2006, imposing a combination of fixed terms and a parole-eligible sentence, resulting in an effective total of a five-year non-parole period and a three-year balance of term. The appellant sought leave to appeal, arguing the sentences were manifestly excessive and that there was a lack of parity and consistency with sentences imposed on co-offenders.

  • Whether the sentencing judge erred in assessing the sentences for the individual offences
  • Whether the overall sentence was manifestly excessive having regard to all the circumstances
  • Whether the sentences lacked parity or consistency when compared with sentences imposed on other participants in the same conduct

Decision

The Court granted the necessary extension of time to bring the appeal (the delay having been explained by affidavit and the Crown acknowledging no resulting prejudice), and also granted leave to appeal. However, the Court dismissed the appeal on all grounds.

On the question of manifest excess, the Court found the sentencing judge had committed no error. The offences demonstrated a high degree of objective criminality. The Court emphasised that bribery and false statement offences are inherently difficult to detect and complex to prosecute, making a significant element of general deterrence appropriate. The appellant had maintained an extravagant lifestyle throughout the offending period, including expensive cars, luxury accommodation, and casino gambling, and there was no suggestion he was in any way pressured into the conduct.

On parity, the Court rejected the submission that the sentences were inconsistent with those received by others involved in the broader HIH matters. Drawing on the principle articulated in R v Rivkin, the Court affirmed that attempting to draw comparisons with other cases offers limited utility given the differences in objective and subjective circumstances between offenders. The sentencing judge was entitled to reach his own conclusions based on the facts before him.

The Court concluded the sentences were neither individually nor cumulatively excessive, and that the sentencing judge had given full and appropriate weight to any matters available in mitigation.

Orders Made

  • Extension of time to seek leave to appeal granted
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that no single error by the sentencing judge could be identified in the assessment of the individual bribery or false statement sentences.
  • In dismissing the appeal, the Court reinforced that the difficulty of detecting and prosecuting bribery offences justifies a meaningful emphasis on general deterrence at sentencing.
  • Parity arguments comparing one offender's sentence with those of co-offenders or participants in related matters carry limited weight where the objective and subjective circumstances differ materially between individuals.
  • Under the approach affirmed in R v Rivkin, the Court of Criminal Appeal's task is to assess whether a sentence falls within a proper exercise of sentencing discretion by reference to the offender's own facts, not by mechanical comparison with other cases.
  • An unexplained delay in filing a sentence appeal does not automatically bar leave where the applicant provides an explanation by affidavit and the Crown demonstrates no resulting prejudice, though the absence of merit in the grounds remains a relevant consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 249B(2), 178BB(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Corporations Act 2001 (Cth)

Cases:
- Cameron v The Queen (2002) 209 CLR 339
- House v The King (1936) 55 CLR 499
- Lowe v The Queen (1984) 154 CLR 606
- Pearce v The Queen (1989) 194 CLR 610
- Postiglione v The Queen (1997) 189 CLR 295
- R v Martin [2005] NSWCCA 190
- R v Rivkin [2004] NSWCCA 7
- R v Way (2004) 60 NSWLR 168
- The Queen v De Simoni (1981) 147 CLR 383