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Court of Criminal Appeal 13 March 2013

Edwards v R

[2013] NSWCCA 54

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL AGAINST SEVERITY OF SENTENCE

Citation: Edwards v R [2013] NSWCCA 54
Court: Court of Criminal Appeal, NSW
Date: 13 March 2013
Judge(s): Johnson J, Harrison J, Adamson J

Background

The appellant pleaded guilty to four counts of dishonestly obtaining a financial benefit by deception, contrary to s 134.2 of the Criminal Code Act 1995 (Cth). Between July 2004 and January 2006, he lodged 27 false Business Activity Statements with the Australian Tax Office, fabricating business expenditure of over $6.7 million across three companies and his personal affairs. He claimed total GST refunds of $540,898, of which $380,724 was actually paid before the scheme was detected.

The District Court sentenced the appellant to a total head sentence of 4 years and 3 months imprisonment, with a non-parole period of 2 years and 2 months. Four additional offences were taken into account under a schedule. The appellant sought leave to appeal the severity of that sentence on 10 remaining grounds.

The appellant appeared unrepresented by video link from Cessnock Gaol, relying primarily on his written submissions.

  • Whether allegedly incompetent legal representation at the sentencing hearing caused a miscarriage of justice
  • Whether the sentencing judge failed to properly consider the appellant's reliance on negligent accounting advice
  • Whether various other aspects of the sentence (including findings on rehabilitation, criminality, and the refusal to impose a non-custodial order) reflected error

Decision

On the incompetent representation ground, the Court applied the established principle from R v Birks and the High Court decisions in Nudd v The Queen and TKWJ v The Queen: the relevant inquiry is not whether counsel performed to a professional standard, but whether what occurred at the sentencing proceeding amounted to a miscarriage of justice. The appellant identified no specific conduct by his lawyers that could satisfy that test. While counsel failed to object to a bail record that included a serious pending charge, the sentencing judge expressly indicated she would disregard unresolved matters, and her remarks on sentence confirmed she did so.

On the accounting advice ground, the sentencing judge had considered and rejected the appellant's claim that he acted on negligent guidance from his accountant. Her Honour found that the appellant understood what he was doing and that the "fiscal naivety" explanation was not accepted at face value. The fabrication of $6.7 million in business expenditure for entities that were not trading supported that finding. The Court of Criminal Appeal found no error in that assessment.

The remaining grounds were each dismissed. The Court found no error in the sentencing judge's conclusions on rehabilitation, objective seriousness, criminality, or the refusal to impose a non-custodial order. Her Honour had expressly engaged with the Pearce principles when imposing partially cumulative sentences, and the submission that this was a case of "exceptional circumstances" warranting no custodial term was rejected as entirely without merit.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that the test for appellate intervention based on alleged counsel incompetence is whether the events at the sentencing proceeding caused a miscarriage of justice, not whether counsel met a standard of professional competence.
  • A sentencing judge's express statement that she would disregard unconvicted matters in a criminal history, followed by remarks on sentence that do not rely on those matters, will ordinarily defeat a claim that counsel's failure to object caused a material irregularity.
  • Where a sentencing judge considers and expressly rejects an offender's claimed reliance on negligent third-party advice, the Court of Criminal Appeal will not interfere in the absence of identifiable error in that factual finding.
  • No error was established in the sentencing judge's approach to assessing objective seriousness, where the offences involved sustained fabrication over many months, non-trivial amounts, and a degree of planning.
  • Under the Pearce principle, where offences form part of a course of criminal conduct, partially cumulative sentences may be appropriate, provided the court remains aware it is sentencing for related offending.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 134.2
- Crimes Act 1914 (Cth)

Cases
- R v Birks (1990) 19 NSWLR 677
- Nudd v The Queen [2006] HCA 9; (2006) 80 ALJR 614
- TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Mill v R [1988] HCA 70; (1988) 166 CLR 59
- Munro v R [2006] NSWCCA 350
- O'Meara v R [2009] NSWCCA 90
- Silvano v R (2008) 184 A Crim R 593
- R v Todd [1982] 2 NSWLR 517