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Court of Criminal Appeal 10 November 2014

Wills v R

[2014] NSWCCA 253

Fraud & dishonestyPublic order & justice offences
CRIMINAL LAW CONSPIRACY TO MONEY LAUNDER MONEY LAUNDERING RECEIVING CORRUPT BENEFITS SENTENCE EXECUTIVE OF WOOLWORTHS

Citation: Wills v R [2014] NSWCCA 253
Court: Court of Criminal Appeal, New South Wales
Date: 10 November 2014
Judges: Hoeben CJ at CL, R A Hulme J, Davies J (judgment)

Background

The appellant was a senior executive at Woolworths who headed its Management Services Division. Following a trial lasting more than three months, a jury convicted him in September 2012 on 14 counts of corruptly receiving benefits as an agent of Woolworths, one count of money laundering, and one count of conspiracy to engage in money laundering transactions.

The corrupt benefits, totalling approximately $1.395 million, were received between June 1997 and December 1998. The scheme involved the appellant receiving payments from the principal of an Israeli technology company, Az-Ben Electronics, in return for showing favour to that company in its dealings with Woolworths. The payments were routed through companies incorporated in the British Virgin Islands and bank accounts in Jersey to conceal their source. The money laundering count related to the use of overseas accounts to fund the purchase of a $250,000 Mercedes-Benz.

The sentencing judge imposed an aggregate sentence of seven years, with a non-parole period of four years commencing 18 January 2013. The appellant, who was 64 years old, suffered from serious health problems including severe coronary artery disease and Type II Diabetes, and was unrepresented at the sentencing hearing. He sought leave to appeal on two grounds: procedural unfairness in the refusal of a second adjournment, and manifest excess in the total sentence.

  • Whether the sentencing judge denied the appellant procedural fairness by refusing to grant a second adjournment of the sentencing hearing, given that he was unrepresented and in poor health.
  • Whether the aggregate sentence of seven years with a four-year non-parole period was manifestly excessive in the circumstances.

Decision

Procedural Fairness

The Court of Criminal Appeal rejected the procedural unfairness ground. Although the appellant was unrepresented, he had already been granted one adjournment and had lodged detailed written submissions with the sentencing judge. The court found that those submissions demonstrated the appellant was capable of putting his case effectively in writing, and the sentencing judge had engaged with them carefully. The right to counsel confirmed in Dietrich v The Queen (1992) does not extend to a right to an indefinite series of adjournments, and no procedural unfairness arose from proceeding with the hearing.

Manifest Excess

The Court also rejected the manifest excess ground. It noted that the offending was objectively serious: it involved a gross breach of trust by a senior corporate officer, occurred over an extended period, was motivated by greed, involved substantial sums, included deliberate planning to avoid detection, and caused considerable harm to the employer. The sentencing judge had correctly treated the conduct as a single extended episode of criminality while imposing some accumulation to reflect the different character of the corrupt benefits and the money laundering offences.

The Court observed that the sentencing judge had proceeded on the basis that the maximum penalty for money laundering was 10 years rather than the correct figure of 20 years, but noted that this error operated in the appellant's favour rather than to his detriment. Comparison with earlier Court of Criminal Appeal decisions involving systematic dishonesty by persons in positions of trust supported the conclusion that the sentence fell well within the available sentencing discretion. The subjective features, including the appellant's age, health, good character, and the sentencing delay, had all been taken into account by the sentencing judge.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An unrepresented offender does not have an automatic right to repeated adjournments of sentencing proceedings; where the offender has already had one adjournment and has lodged detailed written submissions, refusal of a further adjournment may not constitute procedural unfairness.
  • The Dietrich right to a fair trial does not translate into an entitlement to indefinite postponements of sentencing to secure legal representation.
  • A sentencing error that operates in an offender's favour (here, a misstatement of the applicable maximum penalty on the lower side) does not provide grounds for appellate intervention.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that an aggregate sentence for a sustained course of corporate corruption involving large sums and deliberate concealment mechanisms will reflect accumulation even where the conduct forms a single extended episode of criminality.
  • Poor health and good character remain relevant subjective matters in sentencing, but their weight is limited where the sentencing court finds no evidence that the offender's medical needs cannot be met in custody.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 249B(1) (corrupt benefits), s 176A
- Confiscation of Proceeds of Crime Act 1989 (NSW), s 73(2) (money laundering)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 10A

Cases
- Dietrich v The Queen (1992) 177 CLR 292
- R v Battiato [1999] NSWCCA 44
- R v Egerton (Unrep, Court of Criminal Appeal NSW, 8 August 1997)
- R v Giam (No 2) [1999] NSWCCA 378
- R v Houghton [2000] NSWCCA 62
- R v Houlton [2000] NSWCCA 183
- R v Lambrinos (Unrep, Court of Criminal Appeal NSW, 17 July 1998)
- R v Newey (Unrep, Court of Criminal Appeal NSW, 23 August 1990)
- R v O'Neill (Unrep, Court of Criminal Appeal NSW, 24 July 1996)
- Weir v R [2011] NSWCCA 123