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Court of Criminal Appeal 6 November 2014

Kerr v R

[2014] NSWCCA 235

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE DEAL WITH PROCEEDS OF CRIME OBTAIN FINANCIAL ADVANTAGE BY DECEPTION

Citation: Kerr v R [2014] NSWCCA 235
Court: Court of Criminal Appeal, New South Wales
Date: 6 November 2014
Judge(s): Hoeben CJ at CL; Harrison J; McCallum J

Background

The applicant was convicted after trial on 39 counts arising from a scheme to divert payments belonging to a packaging company, Pharmaceutical Fillers Pty Ltd, into his own bank accounts. Between late November 2006 and May 2007, the applicant forged the director's signature to redirect customer payments and funds from a major client into two Westpac accounts he had opened in his own name. The total funds flowing through those accounts exceeded $1.3 million, though the sentencing judge accepted the net amount misappropriated was approximately $246,000 after accounting for sums the applicant had redirected to the legitimate debtor finance account.

The 39 counts fell into three categories under the Crimes Act 1900: using a false instrument (two counts), obtaining a financial advantage by deception (eleven counts), and dealing with the proceeds of crime (26 counts). The applicant received an aggregate sentence of six years' imprisonment with a non-parole period of four years.

The applicant sought leave to appeal that sentence to the Court of Criminal Appeal, arguing it was manifestly excessive and therefore unreasonable and plainly unjust.

  • Whether the aggregate sentence of six years (non-parole period four years) was manifestly excessive, being unreasonable and plainly unjust, having regard to the nature and circumstances of the offences
  • Whether the indicative sentences for the dealing with proceeds of crime offences were disproportionately high relative to the obtain financial advantage by deception offences, given the character of the conduct underlying each
  • Whether the sentencing judge gave adequate weight to the subjective circumstances of the applicant, including his mental health condition, family responsibilities, and the absence of prior convictions

Decision

Harrison J, with whom Hoeben CJ at CL agreed, dismissed the application for leave to appeal. The Court found no error in the sentencing judge's exercise of discretion sufficient to justify intervention under the principles in House v The King. The applicant bore the burden of demonstrating the sentence was unreasonable or plainly unjust; that burden was not discharged.

The Court acknowledged the applicant's argument that the dealing with proceeds of crime offences, while carrying a higher maximum penalty, were essentially "technical" in character because the underlying conduct (transferring funds between his own accounts) was less culpable than the substantive fraud. However, the Court found this consideration had been adequately reflected in the indicative sentences and in the structure of accumulation and concurrency adopted by the sentencing judge. The aggregate sentence was not shown to be outside the appropriate range.

On the applicant's subjective circumstances, the Court noted the sentencing judge had accepted that imprisonment would weigh more heavily on the applicant due to his diagnosed major depressive disorder, and had found special circumstances (adjusting the ratio of non-parole period to head sentence accordingly). The judge had not accepted, however, that the depression affected the applicant's decision-making at the time of the offences, nor that his family circumstances were exceptional. The Court found no error in those findings.

McCallum J agreed with the orders proposed by Harrison J.

Orders Made

  • Leave to appeal refused
  • The application dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that an applicant must demonstrate a sentence is unreasonable or plainly unjust before appellate intervention is warranted, consistent with the longstanding principles in House v The King.
  • Dealing with proceeds of crime offences that are "highly technical" in nature (such as transferring funds between an offender's own accounts) may warrant lower indicative sentences than the maximum penalty for that offence class might otherwise suggest, though this principle did not assist the applicant here.
  • A diagnosed mental health condition existing at the time of offending does not automatically reduce moral culpability; the sentencing court must be satisfied the condition actually affected the offender's decision-making at the relevant time.
  • Where a sentencing judge finds no genuine remorse and concludes the offender misrepresented the circumstances of the offences and sought to avoid prosecution, those findings weigh against mitigation and are matters the Court of Criminal Appeal will not lightly disturb.
  • Special circumstances (which can justify a longer parole period relative to the non-parole period) may be found on the basis of mental health conditions and dependency of a partner with care responsibilities, even where those circumstances are not considered exceptional in the broader sense.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1), 193B(1), 300(2)
- Criminal Appeal Act 1912 (NSW)

Cases:
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135
- Frahm v R [2014] NSWCCA 10
- Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- Nahlous v R [2010] NSWCCA 58; (2010) 77 NSWLR 463
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Schembri v R [2010] NSWCCA 149; (2010) 78 ATR 159
- Subramaniam v R [2013] NSWCCA 259
- Dela Cruz v R [2010] NSWCCA 333
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36