Citation: Daniel Michael Horne v R [2011] NSWCCA 225
Court: Court of Criminal Appeal, New South Wales
Date: 14 October 2011
Judges: Bathurst CJ, James J, Hoeben J
Background
The appellant pleaded guilty to a large number of offences arising from his role as a "runner" for an organised fraud syndicate. The syndicate stole cheques and personal banking details from the mail, manufactured counterfeit identity documents, and used those documents to open fraudulent bank accounts through which stolen cheques were laundered. The appellant personally opened 21 bank accounts in false names across eight financial institutions, with transactions totalling over one million dollars passing through those accounts.
The offences spanned roughly seven to nine months. The appellant was estimated to have personally received around $155,000 for his participation. He was sentenced in the District Court for offences including obtaining money by deception, participating in a criminal group, using and making false instruments, recklessly dealing with the proceeds of crime, and using a forged Commonwealth document.
In sentencing, Judge Lakatos drew heavily on the comparable case of Cranshaw v R, where a similarly placed offender had received a total head sentence of three years and ten months. Given that the appellant's offending was assessed as somewhat more serious, the sentencing judge imposed a total head sentence of four years and two months, with a total non-parole period of three years. The appellant then sought leave to appeal, arguing that the sentencing judge's finding of special circumstances was not properly carried into effect in the sentences imposed.
Legal Issues
- Whether the sentencing judge erred by finding special circumstances (under s 44 of the Crimes (Sentencing Procedure) Act) but then failing to give effect to that finding in the aggregate sentence structure
- Whether the ratio between the total non-parole period (three years) and the total head sentence (four years two months) properly reflected the declared special circumstances finding
Decision
James J (with whom Bathurst CJ and Hoeben J agreed) examined the structure of the sentencing judge's remarks and the resulting sentence. Under s 44(2) of the Crimes (Sentencing Procedure) Act, the standard ratio requires a non-parole period to be at least three-quarters of the head sentence. A finding of special circumstances permits a departure from that ratio, extending the parole period relative to the non-parole period. The aggregate non-parole period of three years against a head sentence of four years two months represented a ratio of approximately 72 per cent, which on its face fell below the statutory default of 75 per cent.
The sentencing judge had worked from the starting point of an aggregate sentence, reducing a notional seven-and-a-half-year term by 45 per cent to account for early guilty pleas and substantial assistance to police. His Honour then determined that three years was the minimum period the appellant should necessarily serve, having regard to the gravity of the offences and the purposes of sentencing including deterrence. The sentencing judge noted that the resulting ratio did not conform to the s 44(2) standard and made a finding of special circumstances to explain the departure.
James J distinguished the present case from earlier decisions where a special circumstances finding had been made but the resulting sentence structure failed to achieve what the judge intended. Here, the sentences imposed were consistent with what the sentencing judge stated at both the beginning and end of his remarks. The Court held that the sentencing judge had, in fact, carried the special circumstances finding into effect, and that a wide discretion exists in determining the extent of any departure from the statutory ratio once special circumstances are found.
Leave to appeal was granted, but the appeal against sentence was dismissed.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence dismissed
Key Takeaways
- A finding of special circumstances under s 44 of the Crimes (Sentencing Procedure) Act opens a discretion to depart from the standard three-quarters non-parole period ratio, but the sentencing court retains a wide discretion in determining the extent of that departure.
- In dismissing the appeal, the Court of Criminal Appeal confirmed that the critical question is whether the sentence structure achieved what the sentencing judge stated as the intended outcome, not whether the departure from the statutory ratio was of any particular magnitude.
- Where a sentencing judge takes an aggregate approach across multiple offences and works backwards from a justified total head sentence, the non-parole period may legitimately reflect the minimum time the offender must serve in light of objective seriousness and the purposes of sentencing.
- No error arises merely because a special circumstances finding produces a modest departure from the statutory ratio, provided that departure is consistent with the reasoning expressed in the remarks on sentence.
- Cranshaw v R was treated as a useful sentencing yardstick, illustrating how a comparable "runner" in the same type of fraud syndicate had been sentenced, with adjustments available where the current offender's conduct was more serious in identifiable respects.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW): ss 93T, 178BA, 193B(3), 300(1), 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 44
- Criminal Code Act 1995 (Cth): s 145.1(5)
- Financial Transaction Reports Act 1988 (Cth)
Cases
- Cranshaw v R [2009] NSWCCA 80
- R v SJD [2004] NSWCCA 182
- Jackson v R [2010] NSWCCA 162
- R v Swan [2005] NSWCCA 252
- R v Cramp [2004] NSWCCA 264
- Stoeski v R [2008] NSWCCA 230
- R v Simpson (2010) 53 NSWLR 704
- R v Weldon (2002) 136 A Crim R 55