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Court of Criminal Appeal 23 November 2011

Ryan v R

[2011] NSWCCA 250

Fraud & dishonesty
CRIMINAL LAW MULTIPLE OFFENCES OF DISHONESTY ADDITIONAL OFFENCES ON FORM 1 GUILTY PLEA FINDING OF SPECIAL CIRCUMSTANCES INCONSISTENT EVIDENCE REGARDING MOTIVE

Citation: Ryan v R [2011] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 23 November 2011
Judge(s): Bathurst CJ, Simpson J, Harrison J

Background

The applicant pleaded guilty in the Local Court to seven dishonesty offences, including obtaining financial advantage by deception, obtaining financial advantage by false or misleading statements, attempting to obtain financial advantage by deception, and knowingly dealing in the proceeds of crime. He also asked the court to take into account a further 34 offences listed on a Form 1 (a procedural mechanism allowing additional admitted offences to be considered at sentencing without separate conviction), bringing the total number of admitted offences to 41.

The offending formed part of what was described as an "organised large scale credit card and identity takeover." Over a period of less than four weeks in late 2008, the applicant used stolen credit card and banking details to fraudulently obtain money and goods. The total value of property and funds dishonestly obtained was approximately $147,780, of which $60,000 was recovered.

In the District Court, Ainslie-Wallace DCJ sentenced the applicant to an aggregate term of 7 years and 6 months imprisonment, commencing 20 November 2008 and expiring 19 May 2016, with a non-parole period of 5 years. The sentences were staggered and partly cumulative. Her Honour applied a 25% discount for the early guilty plea and found special circumstances justifying a reduction in the standard non-parole period. The applicant sought leave to appeal against the severity of those sentences.

  • Whether the sentencing judge failed to give adequate weight to the applicant's claimed motive of duress, and to his expressions of remorse
  • Whether the individual sentences for the dishonesty offences were manifestly excessive
  • Whether the aggregate sentence was manifestly excessive having regard to comparable fraud sentencing decisions

Decision

On the first ground, the Court examined the sentencing judge's treatment of the applicant's claim that he had committed the offences under duress, and his evidence of remorse. Simpson J noted there was inconsistent evidence before the sentencing judge regarding the applicant's motive. Her Honour found no error in the sentencing judge's approach to either duress or remorse, and the first ground was dismissed.

On the second ground, the Court considered whether the individual sentences were manifestly excessive. Simpson J acknowledged that the sentence for one of the proceeds of crime offences might appear towards the higher end of the range, and accepted that a lesser sentence could have been adequate. However, the Court was not persuaded that the sentence imposed fell outside the range legitimately available to the sentencing judge. No specific complaint was advanced about each individual sentence beyond the proceeds of crime count.

On the aggregate sentence, Simpson J referred to a number of comparable cumulative fraud cases canvassed in Stratford v R [2007] NSWCCA 279. She observed that those cases generally involved first-time offenders, and that in most instances the multiple offences constituted a single course of conduct against a single victim. The applicant, by contrast, had a prior criminal history and his offending targeted numerous victims. The Court was not persuaded that either the individual or aggregate sentences fell outside the range properly available to the sentencing judge. Leave to appeal was granted but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an aggregate sentence of 7 years and 6 months for 41 admitted dishonesty offences involving large-scale credit card and identity fraud was within the range open to the sentencing judge.
  • Inconsistent evidence regarding a claimed motive of duress will not readily establish error in a sentencing judge's assessment of that factor or of remorse.
  • A finding that a lesser sentence "could have been adequate" does not, of itself, establish that the sentence actually imposed was manifestly excessive; the relevant question is whether the sentence fell outside the range legitimately open to the sentencing judge.
  • Comparable fraud sentencing decisions carry limited weight where there are significant points of distinction, particularly where the earlier offenders had no prior criminal history and the offending in those cases involved a single course of conduct against one victim.
  • Under the Form 1 procedure in the Crimes (Sentencing Procedure) Act 1999, admitted offences taken into account at sentencing may properly increase the sentence for the principal offence to which they relate, and this is a distinct consideration from the individual sentences imposed on the charged counts.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1), 178BB(1), 184, 193B(2), 344A, 527C, 546D
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44(2), Pt 3 Div 3
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A

Cases:
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383
- R v Henry [1999] NSWCCA 111; 46 NSWLR 346
- Stratford v R [2007] NSWCCA 279
- R v Carr [2002] NSWCCA 434; 135 A Crim R 171
- R v Wong [2001] NSWCCA 444
- R v Jackson [2001] NSWCCA 355
- R v Houghton [2000] NSWCCA 62
- R v Brillo (unreported, NSWCCA, 26 May 1997)
- R v Egerton (unreported, NSWCCA, 8 August 1997)
- R v Giam (No 2) [1999] NSWCCA 378; 109 A Crim R 348
- R v Scott [2005] NSWCCA 152
- R v Martin [2005] NSWCCA 190