Citation: Dela Cruz v R [2010] NSWCCA 333
Court: Court of Criminal Appeal, New South Wales
Date: 30 November 2010
Judge(s): Simpson J, Blanch J, Hulme J
Background
The appellant was an accounts clerk who, while employed by a pharmaceutical company, devised a scheme to fraudulently divert large sums into her own bank account. Between March and May 2007, she misappropriated over $400,000 by exploiting her password access and using false invoice numbers. She then withdrew much of that money and transferred significant amounts overseas, including after she left Australia for the Philippines in June 2007.
Nearly two years later, the appellant obtained fresh employment at another company and committed a second fraud, arranging a payment of approximately $35,000 into her own bank account. She was arrested at Sydney Airport in April 2009.
In the District Court, she was sentenced on two counts of obtaining a financial advantage by deception and one count of knowingly dealing with the proceeds of crime. The sentencing judge imposed cumulative sentences, producing a total non-parole period of four years and six months. The appellant sought leave to appeal, primarily targeting the money laundering sentence and its cumulative structure.
Legal Issues
- Whether the sentencing judge had erred by first determining the desired overall sentencing outcome and then working backwards to fix individual sentences.
- Whether the sentence for the money laundering offence (knowingly dealing with the proceeds of crime under s 193B(2) of the Crimes Act 1900) was excessive, particularly because it was made cumulative on the fraud sentences despite not reflecting any additional criminality beyond the principal offences.
Decision
On the first ground, the Court of Criminal Appeal found no error. Although the sentencing judge had articulated an overall outcome before finalising individual sentences, the remarks as a whole made clear that the judge had in fact determined appropriate penalties for each individual offence. The Court noted that the judge was consciously following the requirements in Pearce v The Queen (1998) 194 CLR 610, which demands careful individual sentencing for multiple offences before aggregation, and that the process was transparent and principled.
On the second ground, the Court agreed with the appellant. The money laundering conduct consisted of withdrawing and transferring the very funds that had been fraudulently obtained. That conduct did not represent criminality additional to or separate from the fraud offences themselves. Because the s 193B(2) charge arose directly out of the same transactions as the principal fraud counts, making the money laundering sentence cumulative was an error.
The Court quashed the sentence imposed on the money laundering count and resentenced accordingly. The revised sentence ran the money laundering term largely concurrently with the existing fraud sentences, reducing the total non-parole period from four years and six months to four years. The Form 1 matters were taken into account in fixing the new sentence.
The non-parole periods on the two fraud charges were confirmed as within the appropriate range, notwithstanding that the sentencing judge had not been referred to the relevant guideline authority (R v Hare). A review of that authority and comparable cases confirmed the two-year non-parole periods were well within the available discretion, particularly given the second fraud was committed nearly two years after the first.
Orders Made
- Leave to appeal granted.
- Sentence on the first s 178BA count confirmed: non-parole period of 2 years from 8 April 2009, expiring 7 April 2011; additional term of 1 year expiring 7 April 2012.
- Sentence on the second s 178BA count confirmed: non-parole period of 2 years from 8 April 2011, expiring 7 April 2013; additional term of 1 year expiring 7 April 2014.
- Sentence on the s 193B(2) count quashed and replaced with imprisonment of 14 months from 8 February 2012, with a balance of term of 2 years; Form 1 matters taken into account.
- Total effective sentence: non-parole period of 4 years from 8 April 2009, with a balance of term of 2 years; appellant directed to be released to parole on 7 April 2013.
Key Takeaways
- A money laundering charge arising directly from the same funds as a principal fraud offence does not, without more, involve additional criminality that would justify a cumulative sentence.
- Where dealing with proceeds of crime is no more than the natural continuation of a fraud scheme, the sentencing court should impose concurrent rather than cumulative sentences for the laundering offence.
- No error is established simply because a sentencing judge articulates an overall outcome before refining individual sentences, provided the judge has in fact determined appropriate penalties for each offence separately and applied the principles in Pearce v The Queen.
- Under s 6(3) of the Criminal Appeal Act 1912, the Court of Criminal Appeal will not reduce a sentence unless it is warranted in law; confirmation of the fraud sentences here reflected that the two-year non-parole periods sat within the range established by comparable authorities.
- Referring a sentencing judge to all relevant guideline and comparable-sentence authorities is important; the failure to cite R v Hare was noted by the Court, although it did not affect the outcome on the fraud counts in this instance.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1), 193B(2)
- Criminal Code (Cth), s 400.4(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Hare [2007] NSWCCA 303
- R v Itaoui [2006] NSWCCA 273
- Nahlous v R [2010] NSWCCA 58
- Schembri v Regina [2010] NSWCCA 149
- Thorn v The Queen [2009] NSWCCA 294
- R v Strano [2002] NSWCCA 531
- R v Trim [2002] NSWCCA 82
- R v George NSWCCA (unreported) 23 September 1994
- R v Prasad 2 A Crim R 45
- R v Tripodina 35 A Crim R 183