Citation: Payda v R [2013] NSWCCA 109
Court: Court of Criminal Appeal, New South Wales
Date: 16 May 2013
Judges: Hoeben CJ at CL, Latham J, Barr AJ (with Hoeben CJ at CL and Latham J agreeing with Barr AJ)
Background
The applicant was convicted of nine offences spanning several years, including multiple counts of obtaining a financial advantage by deception, stealing from a dwelling house, making false statements to obtain money, forging a Commonwealth document, and using a false instrument. The offending targeted family members and a vulnerable elderly man he had met while in custody, as well as financial institutions. The total amount dishonestly obtained or sought ran to hundreds of thousands of dollars.
The applicant pleaded guilty and was sentenced in the District Court by Judge Bennett SC. He then sought leave to appeal against the sentences on three grounds: that insufficient allowance was made for his early guilty pleas, that the sentences did not comply with statutory requirements concerning commencement dates, and that the overall sentences were manifestly excessive.
Legal Issues
- Whether the sentencing judge made adequate allowance for the applicant's early guilty pleas when imposing sentence
- Whether the individual sentences complied with the statutory requirements under the Crimes (Sentencing Procedure) Act 1999 regarding their commencement dates
- Whether the total effective sentence was manifestly excessive, taking into account all relevant factors including the applicant's health and personal circumstances
Decision
On the question of the early guilty plea, the Court of Criminal Appeal found that the sentencing judge had adequately recognised and allowed for the pleas in the exercise of the sentencing discretion. No error was identified in the approach taken.
On the commencement dates ground, the Court considered whether the individual sentences were structured in compliance with the statutory regime governing when sentences must begin. The Court found no demonstrated failure to comply with the relevant requirements.
On the question of manifest excess, the Court considered the totality of the applicant's criminality alongside the total effective sentence imposed. Barr AJ concluded that the sentence fell within the proper range of the sentencing discretion available to the sentencing judge. No ground of manifest excess was made out.
The applicant also raised his health as a mitigating factor, relying on a report from a psychologist and clinical notes from Justice Health relating to a prison injury. The Court found that there was no evidence the injury caused particular hardship in custody, that his medical needs could be met while imprisoned, and that the clinical notes produced on appeal did not advance the case for mitigation beyond what was already before the sentencing judge.
Orders Made
• Grant leave to appeal
• Dismiss the appeal
Key Takeaways
- Leave to appeal was granted but the appeal was dismissed across all grounds, with the total effective sentence confirmed as falling within the proper range of sentencing discretion.
- A sentencing judge's failure to explicitly articulate each mitigating factor in detail will not constitute error where the record demonstrates those factors were recognised and weighed.
- Where evidence of poor health or injury is relied upon in mitigation, the Court confirmed that such evidence must establish that the condition causes particular hardship in custody or that the prison system cannot adequately address the medical needs; mere diagnosis or treatment records are insufficient.
- Fresh evidence sought to be relied upon on appeal that could have been obtained and tendered at the original sentencing hearing carries little weight, particularly where no reason is advanced for why it was not produced below.
- Under the totality principle, the Court of Criminal Appeal assessed the overall sentence across multiple offences against the full picture of the applicant's criminality, rather than examining individual sentences in isolation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW): ss 148, 178BA, 178BB, 300(2)
- Criminal Code Act 1995 (Cth): s 145.1(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Crimes Act 1914 (Cth)
Cases cited: No cases were identified in the text provided.