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Court of Criminal Appeal 3 May 2010

Brown v R, R v Brown

[2010] NSWCCA 73

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW SENTENCE WHETHER SENTENCES MANIFESTLY INADEQUATE

Citation: Brown v R, R v Brown [2010] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 3 May 2010
Judge(s): Macfarlan JA, Howie J, Hislop J

Background

The respondent was a senior accountant employed by a group of textile manufacturing companies experiencing serious financial difficulties. He played a central role in a conspiracy to cheat and defraud a financier by creating false invoices to inflate the apparent value of outstanding debts, enabling the companies to obtain funds to refinance a facility of approximately $1.4 million. He was also an accessory before the fact to the deliberate burning of factory premises.

The respondent pleaded guilty in the District Court to conspiracy to cheat and defraud (a common law offence carrying an at-large penalty) and to being an accessory before the fact to maliciously damaging property by fire (carrying a maximum of 14 years imprisonment). The sentencing judge also took into account nine additional matters listed on a Form 1 (a procedure allowing a court to consider related, uncharged offences at sentencing). A significant mitigating factor was the respondent's cooperation with, and assistance to, law enforcement authorities.

In June 2009, the District Court imposed concurrent sentences of 12 months non-parole period with a 12-month balance for the arson offence, and 6 months non-parole period with a 6-month balance for the conspiracy offence. The respondent sought leave to appeal, arguing the sentences were too harsh in light of his assistance to authorities. The Crown separately appealed, arguing the sentences were manifestly inadequate on multiple grounds.

  • Whether the sentencing judge gave sufficient weight to the respondent's assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999
  • Whether the sentencing judge correctly assessed the seriousness of the common law conspiracy offence, which carries no statutory maximum
  • Whether the judge erred in treating the conspiracy offence as comparable to a statutory offence with a five-year maximum
  • Whether the sentences should have been made partially or wholly cumulative rather than concurrent
  • Whether the Form 1 matters were given insufficient weight in the sentencing exercise
  • Whether the sentences were manifestly inadequate overall
  • What effect, if any, the substantial delay in determining the Crown appeal should have on resentencing

Decision

The Court of Criminal Appeal refused the respondent leave to appeal. The Court found no error in the sentencing judge's characterisation of the respondent's assistance as "significant" rather than "exceptional," and no error in the approach to hardship arising from protective custody. The grounds concerning the severity of the sentence were not made out.

The Crown appeal, however, succeeded on several grounds. The sentencing judge fell into error by treating the penalty for the common law conspiracy offence as equivalent to a statutory offence with a five-year maximum. Because conspiracy to cheat and defraud is a common law offence, the penalty is at large, and the appropriate sentence must reflect the gravity of the actual conduct rather than an assumed statutory cap. The Court found the nine Form 1 matters had also not been adequately reflected in the sentences imposed.

The Court further found error in making the sentences entirely concurrent. Given the separate criminality involved in the arson and the fraud, some accumulation was warranted. Taken together, these errors meant the original sentences were manifestly inadequate and required correction.

On the question of delay, the Court acknowledged that the time taken to determine the Crown appeal had caused real detriment to the respondent, including restrictions on his prison classification and associated privileges. The Court weighed this against the degree of inadequacy in the original sentences and concluded the inadequacy was so substantial that a significant increase was unavoidable, notwithstanding the hardship caused by the delay.

Orders Made

  • Leave to the respondent to appeal against sentence refused.
  • Crown appeal allowed; sentences imposed in the District Court quashed.
  • Respondent resentenced as follows:
  • For the accessory before the fact to maliciously damage property by fire: non-parole period of 21 months with a balance of term of 7 months, commencing 15 June 2009, with the non-parole period expiring 14 March 2011.
  • For conspiracy to cheat and defraud (taking into account Form 1 matters): non-parole period of 2 years 4 months commencing 15 June 2010, with a balance of term of 1 year 2 months, with the non-parole period expiring 14 October 2012.

Key Takeaways

  • A common law offence such as conspiracy to cheat and defraud carries a penalty at large, and a sentencing court errs if it treats the offence as capped by reference to an analogous statutory maximum.
  • Where a respondent has cooperated substantially with authorities, courts must apply a meaningful discount under s 23 of the Crimes (Sentencing Procedure) Act 1999, but such cooperation does not insulate a manifestly inadequate sentence from correction on Crown appeal.
  • Form 1 matters must be genuinely and demonstrably reflected in the sentence imposed; the Court of Criminal Appeal found the nine additional offences had not been adequately taken into account in the original sentencing exercise.
  • Concurrent sentences are not automatic where offences involve distinct criminal acts; the Court confirmed that some degree of accumulation was required to reflect the separate criminality of the fraud and the arson.
  • Delay in determining a Crown appeal is a relevant consideration on resentencing and may weigh against intervention, but it will not prevent the Court from correcting a sentence that is substantially and not merely marginally inadequate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178BA, 197(1)(b), 300
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 23(3)
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW), s 5D

Cases
- SZ v R [2007] NSWCCA 19
- R v Sukkar [2006] NSWCCA 92
- R v Mostyn [2004] NSWCCA 304
- R v S [2000] NSWCCA 13
- R v Fordham (1997) 98 A Crim R 359
- R v Many (1990) 51 A Crim R 54
- R v Cartwright (1989) 17 NSWLR 243
- Tyler v R [2007] NSWCCA 247
- R v Ashton [2002] NSWCCA 498
- Goss v R [2009] NSWCCA 190
- R v Hoar [1981] HCA 67; 148 CLR 32
- Verrier v Director of Public Prosecutions [1967] 2 AC 195
- R v Koh [2001] NSWCCA 324
- R v XX [2009] NSWCCA 115
- Cahyadi v R [2007] NSWCCA 1
- R v JW [2010] NSWCCA 49