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Court of Criminal Appeal 20 February 2014

Frahm v Regina

[2014] NSWCCA 10

Fraud & dishonestyTheft & property
CRIMINAL LAW SENTENCE APPEAL WHETHER SENTENCE MANIFESTLY EXCESSIVE GROUND OF APPEAL NOT MADE OUT.

Citation: Frahm v Regina [2014] NSWCCA 10
Court: NSW Court of Criminal Appeal
Date: 20 February 2014
Judges: Hoeben CJ at CL (principal judgment), Schmidt J, Barr AJ (both agreeing)

Background

The appellant pleaded guilty in the Newcastle District Court to larceny and knowingly dealing with the proceeds of crime under s 193B(2) of the Crimes Act 1900. The offences arose from a street robbery in Newcastle on 13 July 2012, in which the appellant played no part. After watching the robbers flee and seeing one of them dump a handbag in a nearby convenience store, the appellant entered the store, took the handbag, and left. The bag contained approximately $16,000 in cash, two passports, a Louis Vuitton wallet, and other personal items.

Over the following five days, the appellant and his girlfriend spent the money on clothing, rent, a car, hotel accommodation, and gambling. The remaining cash was subsequently stolen from their caravan in a break-in. Police attending that break-in observed the appellant's blue cooler bag, which led to his arrest and a full confession.

Judge Maiden SC sentenced the appellant in the District Court on 6 February 2013, imposing a term of imprisonment of three years (non-parole period of two years) for the proceeds of crime offence, and a conviction with no further penalty for the larceny. The appellant sought leave to appeal on the single ground that the sentence was manifestly excessive.

  • Whether the sentence of three years imprisonment (two-year non-parole period) for knowingly dealing with the proceeds of crime was manifestly excessive, given the spontaneous and unsophisticated nature of the offending and the appellant's personal circumstances.
  • Whether a discernible sentencing range could be established by reference to comparable cases involving s 193B(2) of the Crimes Act 1900.

Decision

Hoeben CJ at CL rejected the manifest excess ground. The sentencing judge had taken into account all relevant factors, including the appellant's drug use at the time of the offence, his reduced intellectual functioning, the spontaneous nature of the offending, his full admissions, his period at a rehabilitation facility, and his lengthy criminal history. After applying a 25 percent discount for the early plea and admissions, the notional starting point of four years was not, in the court's view, unjust or unreasonable within the meaning of Markarian v The Queen.

The court examined six comparable cases involving s 193B(2) offences and found that they covered a wide variety of factual circumstances, ranging from large-scale money laundering to offences linked to the offender's own criminal activity. Because the offence can be committed in many different ways involving very different degrees of criminality, no reliable sentencing range could be extracted from those individual decisions.

Hoeben CJ at CL also noted that the statistics available from the Judicial Commission were insufficient to establish a sentencing trend. Given the absence of either a patent or latent error, and no demonstrated error in the exercise of the sentencing discretion, the ground of appeal failed. Schmidt J and Barr AJ both agreed with the principal judgment.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Where an offence under s 193B(2) of the Crimes Act 1900 can be committed across widely varying factual circumstances, individual comparable cases are of limited assistance in establishing a sentencing range, and the appropriate approach is to apply established sentencing principles.
  • Insufficient statistical data from the Judicial Commission, combined with the wide factual variation in proceeds of crime offending, will generally preclude a finding of manifest excess based on comparison with other sentences.
  • A spontaneous, unsophisticated offence involving a relatively modest sum (here, $16,000) does not automatically attract a lower starting point when the offender has an "appalling" criminal history and the need for specific and general deterrence is prominent.
  • Where a proceeds of crime charge relates solely to an offender's own separate offending, the totality principle may be particularly significant; in this case, however, the appellant was not involved in the underlying robbery, meaning there was additional criminality warranting a separate penalty.
  • No error was established in the sentencing judge's exercise of discretion, including the finding that a significant custodial term was warranted where the entirety of stolen proceeds was dissipated with no prospect of repayment.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 117 (larceny), 193B(2) (knowingly deal with proceeds of crime)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- Veen v R (No 2) [1988] HCA 14; 164 CLR 465
- Youkhana v R [2013] NSWCCA 85
- Yow v R [2010] NSWCCA 251
- Dela Cruz v R [2010] NSWCCA 333
- Sills v R [2011] NSWCCA 271
- Ryan v R [2011] NSWCCA 250
- Ali v R [2008] NSWCCA 60