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Court of Criminal Appeal 22 August 2011

KROL v Regina

[2011] NSWCCA 175

Fraud & dishonesty
CRIMINAL LAW SENTENCE NSW AND COMMONWEALTH OFFENCES FRAUDULENT IDENTITY DOCUMENTS TOTALITY

Citation: KROL v Regina [2011] NSWCCA 175
Court: NSW Court of Criminal Appeal
Date: 22 August 2011
Judges: Campbell JA, RS Hulme J, Hoeben J

Background

The appellant was sentenced in the District Court in February 2010 on 14 counts spanning both Commonwealth and NSW legislation. The offences included opening bank accounts in false names, using and possessing Australian passports not issued to him, stealing mail receptacles, making counterfeit $50 notes, obtaining money by deception from a financial lender on multiple occasions using fabricated identities, and failing to appear in accordance with his bail undertaking.

The offending occurred between February 2007 and early 2009 and involved a sustained pattern of identity fraud. The appellant assumed numerous false identities to fraudulently obtain personal loans totalling tens of thousands of dollars. A number of additional offences were taken into account under Form 1 (NSW) and s 16BA schedules (Commonwealth) without being separately sentenced.

The District Court imposed an effective sentence of 5 years and 4 months, with the final 10 months being release on recognisance. The appellant sought leave to appeal against those sentences.

  • Whether the individual sentences imposed by the District Court were appropriate in length and structure across both NSW and Commonwealth offences.
  • Whether the overall sentence, when viewed through the lens of the totality principle, was excessive or insufficiently structured.
  • Whether the non-parole or recognisance component of the total sentence was proportionate to the custodial period.
  • Whether the formulation of the sentences by the sentencing judge contained technical errors requiring correction.

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal, quashing all sentences imposed by Sorby DCJ. RS Hulme J (with whom Campbell JA and Hoeben J agreed) found that while the overall effective sentence length of 5 years and 4 months was not in itself excessive, the internal structure and formulation of the sentences required correction.

RS Hulme J noted that the appropriate total sentence would, in his view, have been 5 years and 9 months. However, constrained by the sentence that had been imposed at first instance, the Court was limited to 5 years and 4 months. His Honour considered the reduction from the notional appropriate sentence should be achieved by reducing the non-parole or recognisance period rather than the period of actual custody.

The Court observed that the recognisance period (the Commonwealth equivalent of a parole period) was a relatively small proportion of the total sentence, sitting at approximately 12 months out of 5 years and 4 months, amounting to roughly 75% of the sentence to be served in custody. RS Hulme J acknowledged this was a high proportion but considered the nature and extent of the offending justified a substantial custodial term. The individual sentences were restructured with revised commencement dates to produce a coherent, cascading sequence of fixed terms and the recognisance direction.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • All sentences imposed by Sorby DCJ on 11 February 2010 quashed.
  • Count 10: 9 months fixed term, commencing 6 January 2009.
  • Counts 11 and 12: 9 months fixed term each, commencing 6 September 2009.
  • Counts 9 and 13: 10 months fixed term each, commencing 6 June 2010.
  • Count 14 (failing to appear): 4 months fixed term, commencing 6 April 2011.
  • Counts 1, 4 and 6: 4 months each, commencing 6 August 2011.
  • Count 7: 9 months, commencing 6 October 2011.
  • Count 8: 4 months, commencing 6 July 2012.
  • Count 2: 12 months, commencing 6 November 2012.
  • Counts 3 and 5: 12 months each, commencing 6 May 2013.
  • Pursuant to s 20(1)(b) of the Crimes Act 1914 (Cth): the appellant to be released after serving the period from 6 August 2011 to 6 May 2013, upon entering a recognisance of $1 to be of good behaviour for 12 months.

Key Takeaways

  • The Court of Criminal Appeal confirmed that where a sentencing judge's formulation of a sentence is technically deficient but the intended outcome is clear, the appellate court may give effect to what the judge clearly intended rather than the precise words used, while still correcting the structure on appeal.
  • Where an appeal against sentence is allowed but the appellate court considers the original total length was not excessive, the reduction required by the principle of totality may be achieved by adjusting the non-parole or recognisance component rather than reducing overall custody.
  • A high ratio of custodial time to total sentence (approximately 75% in this case) was held to be justified where the offending was extensive, sustained, and involved multiple distinct fraudulent schemes over a prolonged period.
  • Sentencing across a mix of NSW and Commonwealth offences requires careful attention to the different mechanisms for recognisance and parole under Commonwealth law (particularly s 20(1)(b) of the Crimes Act 1914 (Cth)) compared with NSW parole provisions.
  • In dismissing the suggestion that the recognisance period was disproportionately small, the Court reasoned that the nature of the offending meant the appellant did not require an extended supervision period following release.

Legislation and Cases Referenced

Legislation:
- Financial Transaction Reports Act 1988 (Cth), s 24(1)
- Australian Passports Act 2005 (Cth), ss 32(2), 32(4)
- Crimes Act 1914 (Cth), ss 16BA, 20(1)(b)
- Criminal Code Act 1995 (Cth), s 471.1(1)(a)(i)
- Crimes (Currency) Act 1981 (Cth), s 6
- Crimes Act 1900 (NSW), s 178BA(1)
- Bail Act 1978 (NSW), s 51
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Judiciary Act 1903 (Cth)

Cases:
- R v Green and Quinn [2011] NSWCCA 71
- Stevens v R [2009] NSWCCA 260; (2009) 262 ALR 91
- Attorney General's Application under s 37 Crimes (Sentencing Procedure) Act 1999 (No 1 of 2002) [2002] NSWCCA 518; (2002) 56 NSWLR 146
- Hili and Jones v The Queen [2010] HCA 45; (2010) 85 ALJR 195