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Court of Criminal Appeal 21 May 2014

Thomson v R

[2014] NSWCCA 88

Fraud & dishonesty
CRIMINAL LAW APPEAL APPEAL AGAINST SENTENCE PROCEDURAL FAIRNESS PRACTICAL INJUSTICE

Citation: Thomson v R [2014] NSWCCA 88
Court: Court of Criminal Appeal, NSW
Date: 21 May 2014
Judge(s): Gleeson JA at [1]; R A Hulme J at [65]; Campbell J at [66]

Background

The applicant pleaded guilty in the District Court to two counts of dishonestly causing a financial loss to the Commonwealth, contrary to s 135.1(5) of the Criminal Code 1995 (Cth). The offending involved claiming two separate Centrelink benefits simultaneously under different names over a period of roughly four years, resulting in overpayments totalling approximately $54,700.

At sentencing, the judge ordered an assessment of the applicant's suitability for an intensive corrections order (ICO). This procedural step required the court to form a preliminary view that any likely sentence would be two years or less. The applicant's representatives did not seek to make any further oral submissions when the ICO report was received, and on 23 May 2013 the judge imposed an aggregate sentence of two years and six months, with a minimum custodial period of 14 months.

The applicant sought leave to appeal, arguing that the ordering of an ICO assessment created a legitimate expectation that the final sentence would not exceed two years and would not be full-time custody, and that he was denied the opportunity to make further submissions once it became apparent the judge might depart from that course.

  • Whether the sentencing judge's decision to order an ICO assessment created a reasonable expectation that the sentence would be no greater than two years and would be served by way of an ICO.
  • Whether the applicant was denied procedural fairness because the sentencing judge departed from a perceived indication without warning and without affording the applicant an opportunity to make further submissions.
  • Whether any denial of procedural fairness caused practical injustice to the applicant.

Decision

The Court of Criminal Appeal unanimously dismissed the appeal. Gleeson JA, with whom Hulme J and Campbell J agreed, held that no denial of procedural fairness had been established on the facts.

The Court distinguished the present case from earlier decisions such as Weir v R and R v Button, where sentencing judges had made explicit and positive indications of intended sentence ranges that were later departed from significantly. In those cases, the offenders' representatives had demonstrably ceased making submissions in reliance on those indications. Here, no such clear and positive indication was given. The judge's decision to order an ICO assessment was a procedural step required by statute (s 69 of the Crimes (Sentencing Procedure) Act 1999 (NSW)), not a representation as to the sentence that would ultimately be imposed.

The Court emphasised that the legal test for procedural fairness focuses on whether practical injustice resulted, not merely whether an expectation was disappointed. On the evidence, no attempt was made to show that the applicant or his solicitor held any subjective expectation, or that they omitted to make any submission in reliance on the judge's conduct. When the ICO report was received on 10 May 2013, the applicant's solicitor did not seek to make any further submissions, and no application was made for an adjournment to consider the report. The applicant therefore lost no opportunity to put relevant material to the sentencing judge.

The Court also noted that the Crown's written submissions had put the applicant firmly on notice that full-time custody was being pressed, and that social security fraud of this kind ordinarily warrants imprisonment absent "very special circumstances." The applicant's representatives engaged with that submission at the original hearing. There was no basis to conclude that any unfairness, practical or otherwise, had occurred.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court's decision to order an ICO suitability assessment does not, of itself, constitute a representation or indication that the ultimate sentence will be two years or less or that full-time custody will not be imposed.
  • The governing principle in procedural fairness complaints during sentencing is whether practical injustice resulted from the process, not simply whether an expectation was disappointed: Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6 at [34], [37].
  • Where an offender's legal representative declines to seek further submissions after an ICO report is received, the sentencing court cannot be said to have denied a "further hearing" on sentence.
  • The Court of Criminal Appeal confirmed that cases such as Weir v R and R v Button turn on their particular facts. Those decisions concerned explicit and positive indications of sentence range, and evidence that counsel ceased making submissions in reliance on those indications. Neither element was present here.
  • No practical injustice arises from a sentencing judge's decision on accumulation where the applicant's representatives were on notice of the Crown's written submissions on that issue and engaged with it in oral argument.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 17A, 20AB
- Criminal Code 1995 (Cth), s 135.1(5)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 67, 69
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1
- Weir v R [2011] NSWCCA 123
- R v Button [2010] NSWCCA 264
- Ng v R [2011] NSWCCA 227
- R v Glynatsis [2013] NSWCCA 131
- R v Ivanovic [2009] NSWCCA 28
- Parker v DPP (1992) 28 NSWLR 282
- R v Winchester (1992) 58 A Crim R 345
- R v Purdon (NSWCCA, 27 March 1997, unreported)