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Court of Criminal Appeal 16 December 2011

Damon JOB v R

[2011] NSWCCA 267

Fraud & dishonesty
CRIMINAL LAW

Citation: Damon JOB v R [2011] NSWCCA 267
Court: Court of Criminal Appeal, NSW
Date: 16 December 2011
Judges: McClellan CJ at CL, Hidden J, Grove AJ

Background

The applicant was a former Operations Manager at the Roads and Traffic Authority (RTA) who pleaded guilty to multiple offences of obtaining a benefit by deception and corruptly receiving a benefit. Over roughly two years, he used his position to funnel contracts to a company operated by a family friend, certifying payment for work that was never done and approving invoices for goods never supplied. His co-offender received approximately $300,000; the applicant personally received $106,500.

In the District Court, the sentencing judge imposed an aggregate term of five years' imprisonment with an effective non-parole period of three years. The judge applied a combined discount of 40% for the early guilty pleas and assistance to authorities, and found that the applicant had suffered from mental illness at the time of the offences.

The applicant sought leave to appeal, arguing the discount was inadequate, insufficient weight was given to his mental illness, and the sentencing judge failed to take into account his undertaking to make restitution.

  • Whether the 40% discount for guilty pleas and assistance to authorities was adequate, and whether the sentencing judge had incorrectly conflated remorse with those discrete factors
  • Whether the sentencing judge gave sufficient weight to the applicant's mental illness as a mitigating circumstance
  • Whether the sentencing judge erred by failing to take into account the applicant's undertaking to make restitution
  • Whether the overall sentence was manifestly excessive

Decision

The Court of Criminal Appeal, through Hidden J (with McClellan CJ at CL and Grove AJ agreeing), granted leave to appeal and allowed the appeal, reducing the aggregate sentence from five years to four years with an effective non-parole period of two years.

On the discount issue, Hidden J was not persuaded that the sentencing judge had conflated remorse with the pleas and assistance. The judge's remarks were read as acknowledging remorse as a distinct mitigating factor, with the 40% discount directed at the pleas and assistance alone. Hidden J accepted that the assistance was valuable, particularly the undertaking to give evidence against the co-offender, but found no error in the rate of discount itself.

On mental illness, the Court accepted that the sentencing judge had given genuine consideration to the applicant's condition, even though explicit reference to it was limited. The evidence did not establish that the illness causally contributed to the offending to a significant degree, and the judge's treatment of this factor disclosed no error.

On restitution, the Court found the sentencing judge had erred by not taking the applicant's undertaking to repay into account. That undertaking was a relevant mitigating circumstance, and its omission contributed to a finding that the overall sentence was manifestly excessive.

Orders Made

  • Leave to appeal granted; appeal allowed
  • Sentences imposed in the District Court quashed
  • On each charge of obtaining a benefit by deception (Mays Hill tidal flow): fixed term of 12 months' imprisonment from 19 August 2010, expiring 18 August 2011
  • On each charge of obtaining a benefit by deception (Rail Corp shutdowns): fixed term of 12 months' imprisonment from 19 February 2011, expiring 18 February 2012
  • On each charge of corruptly receiving a benefit: non-parole period of 1 year from 19 August 2011 (expiring 18 August 2012), and a balance of term of 2 years expiring 18 August 2014
  • Direction that the applicant be released on parole on 18 August 2012
  • Aggregate sentence: 4 years' imprisonment with an effective non-parole period of 2 years

Key Takeaways

  • A sentencing judge's failure to take into account an offender's genuine undertaking to make restitution constitutes a sentencing error capable of vitiating the sentence on appeal.
  • The Court of Criminal Appeal confirmed that remorse, guilty pleas, and assistance to authorities are distinct mitigating factors, each requiring separate consideration, even where a combined discount is applied to the latter two.
  • Where mental illness is raised as a mitigating factor, the extent to which it causally contributed to the offending is a material consideration; the absence of a clear causal link may limit its weight in the sentencing exercise.
  • In cases of public sector corruption involving multiple overlapping charges, sentencing courts are required to recognise the overlap in the charge structure and avoid penalising an offender multiple times for what is substantially the same criminality.
  • A 40% combined discount for early guilty pleas and valuable assistance to authorities was upheld as appropriate in circumstances where the offender had made a frank statement to investigators and offered to give evidence against a co-offender.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1), 249B(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW)

Cases:
- R v Borkowski [2009] NSWCCA 102
- R v Gallagher (1991) 23 NSWLR 220
- R v M [2005] NSWCCA 224
- R v Pang (1998) 105 A Crim R 474
- R v NP [2003] NSWCCA 195
- R v OPA [2004] NSWCCA 464
- R v AMT [2005] NSWCCA 151
- R v Sukkar [2006] NSWCCA 92
- R v Phelan (1993) 66 A Crim R 446
- R v Conway [2001] NSWCCA 51
- Stratford v R [2007] NSWCCA 279
- Thewlis v R [2008] NSWCCA 176
- R v Cage [2006] NSWCCA 304
- DPP (Cth) v De La Rosa [2010] NSWCCA 194
- R v Fell [2004] NSWCCA 235
- R v Blundell [2008] NSWCCA 63
- R v Hawker [2001] NSWCCA 148
- R v Martin [2005] NSWCCA 190