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Court of Criminal Appeal 14 July 2014

Luong v R

[2014] NSWCCA 129

DrugsFraud & dishonesty
CRIMINAL LAW SENTENCING EXISTING SENTENCE DELAY IN CHARGING WHETHER ERROR IN ACCUMULATION WHETHER SENTENCE MANIFESTLY EXCESSIVE

Citation: [2014] NSWCCA 129
Court: Court of Criminal Appeal, New South Wales
Date: 14 July 2014
Judge(s): Hoeben CJ at CL, Price J, Fullerton J

Background

The applicant, a former licensed real estate agent, pleaded guilty in the District Court to a single charge of obtaining money by deception under s 178BA(1) of the Crimes Act 1900 (NSW). Between April 2007 and January 2010, he fraudulently induced an acquaintance to make approximately 16 separate payments totalling $730,000 in connection with a fictitious property sale, supporting the deception with forged contracts, fabricated conveyancing letters, and other false documents. The applicant gambled away the proceeds.

At the time of sentencing for the fraud offence, the applicant was already serving a six-year federal sentence (with a four-year non-parole period expiring on 3 August 2014) for importing a marketable quantity of heroin. Syme DCJ in the District Court at Campbelltown sentenced the applicant for the fraud to three years and six months imprisonment with a non-parole period of one year and six months, commencing on 3 August 2014. The sentence was fully accumulated on the expiry of the non-parole period of the drug sentence, producing a total effective sentence of seven years and six months with a non-parole period of five years and six months.

The applicant sought leave to appeal against that sentence, arguing both that the accumulation was erroneous and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred in fully accumulating the fraud sentence upon the non-parole period of the existing drug sentence, rather than allowing some degree of concurrency
  • Whether the total sentence imposed was manifestly excessive in all the circumstances

Decision

On the accumulation ground, the Court of Criminal Appeal affirmed the principles in Cahyadi v R (2007) and Mill v R (1988): where an offender is already serving a sentence, a new sentence may be made either concurrent, partly concurrent, or wholly consecutive (accumulated), and the choice depends on whether the offences are related and on the totality principle. The Court noted that the fraud offence and the drug offence shared only a tenuous connection, being the applicant's need for gambling funds. The Court found that the sentencing judge correctly treated the offences as substantially unrelated and that full accumulation was within her legitimate discretion.

On the manifest excess ground, the Court applied the test in Markarian v R (2005), requiring demonstration that the sentence was unreasonable or plainly unjust. The fraud was characterised as planned and sophisticated, committed over a long period, and involving the preparation of multiple false documents to sustain an elaborate deception. The Court accepted the sentencing judge's conclusion that the offending represented a high degree of criminality that would have attracted something approaching the maximum penalty but for the 25 per cent discount for the guilty plea. The undiscounted starting point of four years and eight months was below the maximum of five years, and the Court was not persuaded the judge failed to give appropriate weight to the applicant's subjective case.

Both grounds were rejected and the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Full accumulation of a new sentence upon the non-parole period of an existing sentence is a matter within the sentencing judge's discretion, provided the totality principle is applied and the relationship (or lack of relationship) between the offences is properly considered.
  • Where two offences share only a peripheral connection, a sentencing court is not required to impose concurrent or partly concurrent sentences.
  • A conviction under s 178BA(1) of the Crimes Act 1900 (NSW) carries a maximum of five years imprisonment; the maximum is reserved for the worst category of cases, and a starting point below the maximum can still reflect very high objective seriousness.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an appellate court will intervene on questions of weight only in narrowly confined circumstances, as established in Majid v R (2010).
  • Pathological gambling and associated financial pressure may be raised as part of an offender's subjective case, but a sentencing court is entitled to find that such factors provide limited mitigation where the offending was prolonged, sophisticated, and involved the repeated exploitation of a victim.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 178BA(1)
- Criminal Code Act 1995 (Cth), s 307.1

Cases
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- Majid v R [2010] NSWCCA 121
- Markarian v R (2005) 228 CLR 357
- Mill v R (1988) 166 CLR 59
- R v Hawkins (1989) 45 A Crim R 430