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Court of Criminal Appeal 16 December 2011

Rooke v R

[2011] NSWCCA 280

Fraud & dishonesty

Citation: Rooke v R [2011] NSWCCA 280
Court: Court of Criminal Appeal, New South Wales
Date: 16 December 2011
Judge(s): Whealy JA, Hislop J, Latham J

Background

The appellant pleaded guilty to 13 counts of using a false instrument with intent (under s 300(2) of the Crimes Act 1900, carrying a maximum of ten years) and seven counts of obtaining money by deception (under s 178BA(1), carrying a maximum of five years). A further 27 offences were taken into account on four Form 1 documents. The offences involved using false or stolen identities to open fraudulent accounts, transfer funds, and withdraw cash from victims' accounts, with total funds transferred or withdrawn amounting to approximately $468,000.

The appellant had a lengthy criminal history from 1995, including numerous drug-related and dishonesty offences. Several of the subject offences were committed while he was on a suspended sentence, on parole, or on bail, each of which the sentencing judge treated as a significant aggravating circumstance.

The sentencing judge imposed an effective sentence of five years and four months imprisonment with a non-parole period of three years and four months, after applying a 25 per cent discount for early pleas of guilty. The appellant sought leave to appeal on four grounds.

  • Whether the sentencing judge erred in finding that the appellant personally withdrew a total of $373,430, when the agreed facts were silent as to the identity of the withdrawer for three groups of transactions
  • Whether the sentencing judge erred in using the appellant's continued participation in the methadone program as a reason to discount his prospects of rehabilitation
  • Whether the sentencing judge erred by treating the appellant's failure to provide his version of events to authorities before giving evidence on sentence as an aggravating consideration
  • Whether the overall sentence was manifestly excessive

Decision

Ground 1 (quantum of withdrawals): The Court accepted that the agreed facts sheet was silent as to the identity of the withdrawer for three groups of transactions, and that the appellant's figure of $306,430 may have been more accurate than the sentencing judge's figure of $373,430. However, the Court held that the difference was immaterial: both figures fell within a range of approximately $300,000 to $400,000, and the variation would have had little or no impact on the sentence. No lesser sentence was warranted in law on this basis.

Ground 2 (methadone program and rehabilitation): The Court rejected the argument that the sentencing judge had treated methadone participation as a negative factor. Reading the remarks on sentence as a whole, the judge's conclusion was that continued reliance on methadone after more than two years in custody indicated the appellant had not yet genuinely embraced the need for change. That was a finding open on the evidence and did not constitute error.

Ground 3 (failure to provide version of events): The Court found it unnecessary to resolve whether the sentencing judge had in fact drawn an adverse inference from the appellant's failure to provide his account to authorities before the sentence hearing. Even if such reasoning had occurred, it had no material effect on the sentence and provided no basis for intervention.

Ground 4 (manifest excess): After reviewing comparable decisions, including R v Royal, Mitchell v R, Cranshaw v R, JOD v R, and Stevens v R, the Court was satisfied that the sentence fell within the range reasonably open to the sentencing judge. The Court noted that general deterrence carries particular weight for identity fraud offences, a point specifically affirmed in Stevens by Spigelman CJ. 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 a numerical discrepancy in the quantum of funds attributed to an offender will not warrant appellate intervention where both figures fall within the same broad range and the difference produces no material change to the sentencing outcome.
  • Continued participation in a methadone program while in custody is not inherently favourable to a finding of good rehabilitation prospects; a sentencing court may treat ongoing dependence as indicating that genuine engagement with the need for change has not yet occurred.
  • Committing offences while on conditional liberty (whether a suspended sentence, parole, or bail) remains a significant aggravating factor, and the Court treated the appellant's repeated offending across multiple periods of conditional liberty as justifying a substantial sentence.
  • Under the Criminal Appeal Act 1912 s 6(3), the Court of Criminal Appeal will only intervene to reduce a sentence where it is established that a lesser sentence is warranted in law; identifying a possible factual error is insufficient without demonstrating it materially affected the result.
  • General deterrence carries particular weight in sentencing for identity fraud and deception offences, given the Court of Criminal Appeal's recognition in Stevens v R that such crimes fundamentally undermine public confidence in financial institutions.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178BA(1), 300(2)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- The Queen v Olbrich [1999] HCA 54; (1999) 199 CLR 270
- R v Royal [2003] NSWCCA 260
- Mitchell v R [2006] NSWCCA 72
- Cranshaw v R [2009] NSWCCA 80
- JOD v R [2009] NSWCCA 205
- Stevens v R [2009] NSWCCA 260
- Markarian v R [2005] HCA 25; (2005) 228 CLR 357
- R v Holder [1983] 3 NSWLR 245
- R v Mungomery [2004] NSWCCA 450; (2004) 151 A Crim R 376