Citation: Subramaniam v R [2013] NSWCCA 159
Court: Court of Criminal Appeal, New South Wales
Date: 3 July 2013
Judge(s): Emmett JA, Simpson J, Latham J
Background
The appellant was a senior financial accountant employed by ING Holdings Australia Ltd for approximately 20 years. Between July 2004 and September 2009, she used her position to transfer approximately $45.3 million from ING corporate accounts into her own accounts or directly to third parties, funding the purchase of luxury goods and eight real estate properties.
She was arrested in October 2009 and has remained in custody since that date. Against legal advice, she made admissions on the day of her arrest. She subsequently pleaded guilty to all 26 charges: 23 counts of obtaining a benefit by deception under s 178BA of the Crimes Act 1900 and three counts of dealing with proceeds of crime (money laundering) under s 193B(2) of the same Act.
The District Court imposed an aggregate sentence of 15 years, with a non-parole period of 7 years. The appellant sought leave to appeal on the ground that the sentencing judge had failed to comply with s 53A of the Crimes (Sentencing Procedure) Act 1999 when structuring the aggregate sentence. The Crown conceded the error.
Legal Issues
- Whether the sentencing judge complied with s 53A of the Crimes (Sentencing Procedure) Act 1999 in imposing an aggregate sentence across 26 offences.
- Whether the sentencing remarks disclosed a rational basis for the grouping and structure of the aggregate sentence.
- How the offences should properly be grouped for the purpose of re-sentencing.
- What weight should be given to the appellant's mental condition, early plea, cooperation with authorities, prospects of rehabilitation, and partial restitution.
- Whether special circumstances existed warranting a departure from the standard non-parole period ratio.
Decision
The Court unanimously held that the sentencing judge erred in applying s 53A. Section 53A(2) requires a court imposing an aggregate sentence to record the sentence that would have been imposed for each individual offence had separate sentences been given. The sentencing remarks provided no meaningful insight into how the overall sentence was calculated, and the grouping of offences by destination bank account rather than by the seriousness of the amounts involved lacked a rational basis.
The Court proceeded to re-sentence the appellant. Latham J (with Emmett JA and Simpson J agreeing) structured the s 178BA offences into five bands based on the size of each transfer, grouping offences of a similar financial order together. This approach was considered far more coherent than the original grouping, though Latham J acknowledged some degree of arbitrariness is inherent in any such exercise. The three money laundering offences were treated as a separate group, run wholly concurrently with each other, on the basis that they involved a degree of technicality, as they related to the same funds that underpinned the deception offences.
The Court accepted that the appellant's moral culpability was moderately reduced, having regard to a diagnosed personality disorder linked to childhood sexual abuse. A 25% discount was applied for the early guilty pleas, and her extensive cooperation with ING was treated as evidence of genuine remorse and contrition. The Court found good prospects of rehabilitation, limited utility in a sentence emphasising personal deterrence, and reduced weight for general deterrence given the personality disorder. Special circumstances were established, justifying a longer parole period to support treatment and reintegration.
The aggregate non-parole period was reduced from 7 years to 6 years, with a balance of term of 5 years, resulting in an aggregate head sentence of 11 years, down from 15 years.
Orders Made
- Appeal allowed.
- Sentence imposed on 10 February 2012 quashed.
- Aggregate non-parole period of 6 years imposed, dating from 4 October 2009, expiring 3 October 2015.
- Balance of term of 5 years, expiring 3 October 2020.
- Appellant eligible for release on parole on 4 October 2015.
Key Takeaways
- Under s 53A of the Crimes (Sentencing Procedure) Act 1999, a court imposing an aggregate sentence must record the sentence that would have been imposed for each individual offence, and the sentencing remarks must disclose a rational structure for the aggregation. Failure to do so constitutes error, even though s 53A(5) preserves the formal validity of the sentence.
- Grouping offences of similar financial magnitude together, rather than by the destination of funds, reflects the proper approach to assessing comparative criminality when structuring an aggregate sentence for multiple fraud offences.
- Money laundering offences that derive from the same underlying conduct as the principal fraud offences may fall within what the Court described as a "highly technical" category, warranting concurrent treatment with each other.
- Restitution and cooperation with the victim organisation can constitute evidence of an offender's remorse, capable of influencing the overall sentencing assessment.
- A diagnosed personality disorder causally connected to an offender's conduct may moderate moral culpability and reduce the weight given to both personal and general deterrence as sentencing objectives.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
Cases:
- Job v R [2011] NSWCCA 267
- Muldrock v The Queen [2011] HCA 39
- Phelan v R (1993) 66 A Crim R 446
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Brown [2012] NSWCCA 199
- R v Conway [2001] NSWCCA 51; 121 A Crim R 177
- R v Giallussi [1999] NSWCCA 56
- R v Nykolyn [2012] NSWCCA 219
- R v Strano [2002] NSWCCA 531
- Thewlis v R [2008] NSWCCA 176
- Thorn v R [2009] NSWCCA 294
- Williams v R [2012] NSWCCA 172
- Yang v R [2012] NSWCCA 49