Citation: Butler v Regina [2012] NSWCCA 54
Court: Court of Criminal Appeal, New South Wales
Date: 5 April 2012
Judge(s): Beazley JA (principal judgment); Harrison J and McCallum J (agreeing)
Background
The applicant was a former Commonwealth Bank employee who, from late 2008, used his privileged access to the bank's computer systems to assume client identities and obtain credit cards in those clients' names. His conduct spanned more than 300 individual offences committed over roughly two years. The bank was required to reimburse defrauded clients a total of $454,290.
The offences charged included 18 counts of obtaining money by deception (Crimes Act 1900, s 178BA(1)), four counts of causing an unauthorised computer function with intent to steal (s 308C(1)), one count of recklessly dealing with proceeds of crime (s 193B(3)), and a further 294 offences dealt with on a Form 1 (a procedural mechanism allowing a court to take additional offences into account when sentencing, without recording separate convictions). The applicant pleaded guilty and was sentenced in the District Court. He then sought leave to appeal to the Court of Criminal Appeal on the ground that the sentences were excessive and infected by legal error.
The applicant had a difficult personal history, including a seriously abusive childhood, the early loss of his mother, and longstanding gambling and drug addictions. The sentencing judge accepted these as relevant background factors, also finding that the offending involved a serious breach of trust and that general deterrence was a weighty consideration.
Legal Issues
- Whether the sentencing judge erred by stating that the maximum penalty for a s 308C(1) offence was 10 years imprisonment, when the correct maximum (where the serious indictable offence particularised is stealing) is 5 years
- Whether the sentencing judge erred by effectively imposing the maximum penalty for the s 308C(1) offences in circumstances where the case was not found to be among the worst category of such offences
- Whether the applicant was wrongly denied a guilty plea discount on the s 308C(1) offences as a consequence of the maximum penalty error
- Whether the sentences for the s 308C(1) offences, and the total effective sentence, were manifestly excessive
Decision
The Crown conceded that the sentencing judge had been given incorrect information about the maximum penalty for the s 308C(1) offences, and that this error flowed directly from misinformation provided by the Crown at the original sentencing. The correct maximum, where the underlying serious indictable offence is stealing, is 5 years imprisonment (by reference to s 117 of the Crimes Act 1900), not 10 years as the judge had been told.
Because the judge believed the maximum was 10 years, he imposed a 5-year sentence for each s 308C(1) offence. That sentence in fact equated to the true maximum. The Court confirmed the established principle that the maximum penalty is reserved for the worst category of cases for the offence in question, and the Crown accepted that this case did not fall into that category. Accordingly, it was also an error to impose the maximum.
A further consequence of the error was that the 25 per cent discount the judge had allowed for the utilitarian value of the applicant's early guilty plea was not applied to the s 308C(1) offences. Since the judge was already imposing what he believed was a below-maximum sentence, there was no room in his reasoning to reduce it further. The Court found this constituted a third separate error, and all three grounds of appeal were upheld.
The Court re-sentenced the applicant on the s 308C(1) offences, imposing a fixed term of 2 years rather than 5 years. The sentences for the s 178BA(1) and s 193B(3) offences were also restructured to ensure the overall sentencing architecture remained coherent. The total effective sentence was reduced as a result.
Orders Made
- Leave to appeal granted
- Appeal against the sentences imposed for the s 308C(1) offences allowed
- All sentences set aside and the applicant re-sentenced as follows:
- On each s 308C(1) charge: fixed term of 2 years imprisonment, commencing 9 September 2010 and expiring 8 September 2012
- On each s 178BA(1) charge: fixed term of 3 years imprisonment, commencing 9 September 2010 and expiring 8 September 2013
- On the s 193B(3) charge: non-parole period of 3 years commencing 9 September 2010 and expiring 8 September 2013, with a balance of term of 2 years expiring 8 September 2015
Key Takeaways
- The Court of Criminal Appeal confirmed that a sentencing judge who is given incorrect information about the maximum penalty for an offence, and who sentences on that mistaken basis, falls into legal error that will justify intervention on appeal.
- Under established sentencing principle, the maximum penalty for an offence is reserved for cases falling into the worst category of offending for that offence. Where neither the sentencing judge nor the Crown identified the case as falling into that category, imposing the maximum is itself an error.
- An erroneous understanding of the maximum penalty can produce a cascade of related errors: in this case, it also caused the sentencing judge to omit the guilty plea discount he had otherwise decided to apply.
- Citing Muldrock v The Queen [2011] HCA 39, the Court noted that a precise determination of where offending sits within a hypothetical range of seriousness is not required. Objective seriousness is assessed by reference to the totality of the conduct, including the number of occasions, the duration of offending, and the amounts involved.
- The correct maximum penalty for a s 308C(1) offence where the particularised serious indictable offence is stealing is 5 years imprisonment, derived from s 117 of the Crimes Act 1900, not the 10-year maximum applicable to other offences under the same provision.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 117, 178BA(1), 193B(3), 308C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Muldrock v The Queen [2011] HCA 39