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Court of Criminal Appeal 5 June 2013

Hughes v R

[2013] NSWCCA 129

Fraud & dishonesty
CRIMINAL LAW SENTENCE NO DISCOUNT FOR ASSISTANCE GIVEN CHANGE OF CIRCUMSTANCES DISCOUNT FOR DELAY NEED TO SPECIFY DISCOUNT

Citation: Hughes v R [2013] NSWCCA 129
Court: Court of Criminal Appeal, NSW
Date: 5 June 2013
Judges: Hoeben CJ at CL, Hall J, Davies J

Background

The applicant, a former RailCorp employee, pleaded guilty to eight counts of making a false statement with intent to obtain money and one count of causing an unauthorised computer function. A further five offences of obtaining a benefit by deception were taken into account on a Form 1. The offending spanned roughly 18 months and involved the applicant using her position in RailCorp's procurement system to channel approximately $509,000 through false invoices, of which she personally received around $366,000 to fund a gambling addiction.

The offences came to light through an ICAC investigation in 2007, with a report published in August 2008. Despite making early admissions to ICAC investigators and providing assistance regarding others involved, the applicant was not prosecuted until 2012, some years after those admissions.

At first instance, the sentencing judge imposed an aggregate sentence with a non-parole period of two years and six months. The applicant appealed, arguing the judge had failed to give adequate credit for the long delay in prosecution and for the assistance she had provided to authorities.

  • Whether the sentencing judge erred by failing to give any discount for the assistance the applicant provided to ICAC investigators regarding other persons involved in the offending.
  • Whether the sentencing judge erred in the manner in which a discount for the lengthy delay between the applicant's admissions and her eventual prosecution was applied.
  • Whether, where a sentencing judge acknowledges an entitlement to a discount, the discount must be expressly quantified in the sentencing remarks.

Decision

The Court of Criminal Appeal found error in the sentencing judge's approach on both grounds. On the question of assistance, the Court accepted that the applicant had made early admissions to ICAC and provided information about others involved. The sentencing judge had not given a discrete discount for that assistance, which the Court found was an error requiring correction.

On the question of delay, the Court acknowledged that a long delay between an offender's admissions and prosecution can warrant a sentencing discount, particularly where the offender's circumstances have changed materially during that period. Here, the applicant had made significant rehabilitative progress over several years, including addressing her gambling addiction. A discount for delay had been acknowledged by the sentencing judge but was not separately quantified in the reasons.

The Court confirmed that where a sentencing judge identifies an entitlement to a discount for delay or for assistance, the discount must be specified with sufficient clarity. Without that specification, the Court of Criminal Appeal faces real difficulty when re-sentencing, and co-offender parity arguments cannot be easily resolved. The Court noted that a purely formulaic approach to sentencing should ordinarily be avoided, but transparency as to identified discounts is required.

The Court allowed the appeal, quashing the original sentence and imposing a reduced aggregate sentence.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence imposed by Judge Williams quashed.
  • In lieu, an aggregate sentence imposed consisting of a non-parole period of 2 years commencing 24 February 2012 and expiring 23 February 2014, with an additional term of 1 year and 3 months expiring 23 May 2015.

Key Takeaways

  • Where a sentencing court acknowledges that an offender is entitled to a discount for delay or for assistance provided to authorities, that discount must be expressly quantified in the sentencing remarks to allow meaningful appellate review.
  • A lengthy delay between an offender's cooperation with investigators and the eventual prosecution can warrant a sentencing discount, particularly where the offender has undergone genuine rehabilitative change during the intervening period.
  • The Court of Criminal Appeal confirmed that assistance provided to investigative bodies such as ICAC, including early admissions and information about co-offenders, is a matter to which a distinct sentencing discount may attach under s 23 of the Crimes (Sentencing Procedure) Act 1999.
  • Sentencing remains an intuitive process and formulaic approaches are to be avoided, but transparency about identified discounts is a separate and distinct requirement.
  • In cases involving co-offenders, failure to specify the basis and quantum of any discount can prevent parity arguments from being properly resolved on appeal.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178BA, 178BB, 308C
- Crimes Act 1914 (Cth)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Independent Commission Against Corruption Act 1988 (NSW)

Cases
- R v Blanco [1999] NSWCCA 121; (1999) 106 A Crim R 303
- Kite v R [2009] NSWCCA 12
- LB v R [2013] NSWCCA 70
- Lewins v R [2007] NSWCA 189
- Mill v The Queen (1988) 166 CLR 59
- Pearce v The Queen (1998) 194 CLR 610
- R v Gallagher (1991) 23 NSWLR 220
- R v MAK; R v MSK [2006] NSWCCA 381
- R v PPB [1999] NSWCA 360
- R v Thomson; R v Houlton [2000] NSWCCA 309; (2000) 49 NSWLR 383
- R v Todd [1982] 2 NSWLR 517
- SZ v R [2007] NSWCCA 19; 168 A Crim R 249
- The Queen v De Simoni (1981) 147 CLR 383