Citation: [2011] NSWSC 1252
Court: Supreme Court of New South Wales
Date: 21 October 2011
Judge: Latham J
Background
The applicant had pleaded guilty in the District Court to 11 counts of dishonesty offences across two indictments. Those offences included use of a false instrument, possession of false travel documents, and multiple counts of obtaining a benefit by deception under s 178BA of the Crimes Act 1900, involving fraudulent ATM withdrawals and identity theft targeting bank accounts.
The applicant was sentenced in February 2008 to a total non-parole period of six years and three months. He appealed that sentence to the Court of Criminal Appeal, which dismissed the appeal in October 2009.
The applicant then brought a fresh application under s 78 of the Crimes (Appeal and Review) Act 2001, seeking referral of his case back to the Court of Criminal Appeal. He argued that the sentence was vitiated by error and that counts 6 to 10 on the second indictment were bad for duplicity or latent ambiguity.
Legal Issues
- Whether errors in the Crown's submissions to the sentencing judge, or errors in the remarks on sentence, gave rise to a "sense of unease" sufficient to warrant a referral under s 78.
- Whether counts 6 to 10 on the second indictment were expressed in a form that was duplicitous or latently ambiguous.
- Whether the applicant's pleas of guilty to those counts were entered in ignorance of the true legal ingredients of the offences.
- Whether the court should exercise its discretion under s 79(3) to refuse the application where no prior conviction appeal had been brought and no special circumstances were demonstrated.
Decision
On the sentencing error ground, Latham J found that a Crown submission to the sentencing judge had incorrectly suggested additional offences were being taken into account. However, the court found that this error did not produce any unease about the sentence ultimately imposed. The overall sentence was characterised as lenient given the total criminality involved across the offending, and there was no realistic prospect that the error had inflated the sentence to the applicant's detriment.
The applicant's argument that the benefit in the s 178BA charges was constituted by the withdrawal of money, rather than by the deposit of funds into the fraudulently opened accounts, was rejected. Latham J held that it was the deposit of funds into those accounts that constituted the benefit to the applicant, and that the charges were correctly framed around that event.
On the duplicity and ambiguity arguments, the court found that the expressions "at a place unknown" and "at other places" in counts 6 to 10 were entirely conventional forms of expression consistent with ordinary indictment drafting and did not contravene the Criminal Procedure Act 1986. The court further noted that the applicant's guilty pleas necessarily admitted the legal ingredients of those offences, and no basis was established to permit withdrawal of those pleas.
Latham J also invoked s 79(3) of the Act as an independent basis for refusing the application in relation to the conviction grounds. The applicant had never appealed his conviction on those counts and offered no explanation for that failure, nor any special facts or circumstances justifying the court's further intervention.
Orders Made
• The application is refused.
Key Takeaways
- Under s 78 of the Crimes (Appeal and Review) Act 2001, a Crown error in submissions to the sentencing judge does not automatically warrant referral to the Court of Criminal Appeal; the court must assess whether that error produced actual unease about the sentence imposed.
- Where a sentence is found to be lenient in light of the full scope of an offender's criminality, a misdirection or erroneous submission that did not inflate the sentence will not give rise to the requisite doubt necessary for referral.
- For offences of obtaining a benefit by deception involving fraudulent bank accounts, the benefit to the offender is constituted by the deposit of funds into the account, not by the subsequent withdrawal.
- Conventional indictment language such as "at a place unknown" does not render a charge duplicitous or ambiguous under the Criminal Procedure Act 1986.
- Section 79(3) of the Crimes (Appeal and Review) Act 2001 permits the court to refuse a s 78 application where the matter raised could have been the subject of a conventional appeal that was never pursued, and the applicant offers no explanation or special circumstances to justify a further review.
Legislation and Cases Referenced
Legislation:
- Crimes (Appeal and Review) Act 2001 (NSW), ss 78, 79(3)
- Criminal Appeal Act 1912 (NSW)
- Crimes Act 1900 (NSW), ss 178BA, 300(2)
- Criminal Procedure Act 1986 (NSW)
- Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 22
Cases:
- Stevens v R [2009] NSWCCA 260 (Spigelman CJ, Grove J agreeing)