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Court of Criminal Appeal 24 July 2015

De Angelis v R

[2015] NSWCCA 197

Fraud & dishonesty
APPEAL SENTENCING SENTENCING MANIFEST EXCESS SENTENCE NOT MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED

Citation: De Angelis v R [2015] NSWCCA 197
Court: NSW Court of Criminal Appeal
Date: 24 July 2015
Judges: Simpson JA; Button J; Fagan J

Background

The appellant was convicted on 16 counts of fraud-related offences following pleas of guilty entered in the District Court in September 2012. Fourteen counts were of fraud as a company director under s 176A of the Crimes Act 1900 (NSW), and two counts were of obtaining money by deception under s 178BA of the same Act. The offending spanned approximately six years, from 2004 to 2010.

The appellant operated a sham music production company and, over that period, cultivated personal relationships with 16 investors. He fabricated an elaborate false identity, complete with forged photographs, false financial records, and invented associations with world leaders, to persuade those investors to contribute funds. The 16 victims collectively lost $8.5 million, with individual losses ranging from $20,000 to $2.775 million.

The sentencing judge in the District Court imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 7 years and 6 months. The indicative individual sentences were reduced by 12.5 per cent to reflect the utilitarian value of the guilty pleas. The appellant sought leave to appeal out of time, arguing both that insufficient discount was given for the guilty plea and that the sentence was manifestly excessive.

  • Whether the sentencing judge gave sufficient weight to the utilitarian value of the guilty pleas, in circumstances where the pleas followed a fitness-for-trial inquiry
  • Whether the aggregate sentence of 12 years was manifestly excessive, having regard to evidence of the appellant's mental condition and comparative sentences in similar fraud matters

Decision

Guilty plea discount: The Court of Criminal Appeal found no error in the sentencing judge's application of a 12.5 per cent discount. The pleas were not entered at the earliest opportunity. While a fitness-for-trial inquiry had been conducted under the Mental Health (Forensic Provisions) Act 1990 (NSW), the appellant was ultimately found fit to be tried, and he entered his pleas only ten days after that finding. Critically, there was no point at which the appellant had been genuinely unfit or significantly impaired in his capacity to plead. The discount applied was therefore appropriate for a late plea, and the sentencing judge had not failed to give proper consideration to the utilitarian value of that plea.

Mental condition: The Court accepted the general principle, drawn from DPP (Cth) v De La Rosa, that a psychiatric condition bearing a causal connection to the offending can warrant a reduced sentence. However, the Court found that neither condition was established on the evidence here. The appellant's narcissistic personality disorder was not shown to be of sufficient severity to warrant significant amelioration of the sentence, and no causal connection between any condition and the offending was demonstrated. The Court also noted a strong inference that the appellant had deliberately attempted to manufacture the appearance of a more serious psychiatric condition.

Manifest excess: Comparisons with sentences in other fraud matters did not persuade the Court that the aggregate sentence fell outside the available range. The sentencing judge had characterised the offending as predatory, deliberate, and sustained, involving what the Court described as vast, continuing criminality. That characterisation was well supported by the facts. The Court was not satisfied that 12 years with a non-parole period of 7 years and 6 months was outside the range legitimately available for offending of this nature.

Orders Made

  • Time for filing the application for leave to appeal against sentence extended to 17 April 2015
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • A guilty plea entered shortly after a fitness-for-trial determination does not automatically attract a greater discount where the offender was never genuinely unfit or significantly impaired in the capacity to plead; the absence of a plea at the earliest opportunity remains a relevant limiting factor.
  • Under the principles confirmed in DPP (Cth) v De La Rosa, a mental condition must be of sufficient severity and bear a genuine causal connection to the offending before it will warrant meaningful sentence reduction.
  • No error was established in the sentencing judge's exercise of discretion, consistent with the high threshold for appellate intervention in sentencing set by House v The King.
  • In dismissing the ground of manifest excess, the Court of Criminal Appeal confirmed that the deliberate, sustained, and large-scale nature of fraud offending is a significant factor in assessing whether a sentence falls within the available range.
  • An inference that an offender has deliberately attempted to exaggerate or manufacture a psychiatric condition may itself be a relevant consideration when assessing that evidence at sentencing.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 176A, 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), Pt 3 Div 3, ss 21A(2), 44(2), 53A
- Mental Health (Forensic Provisions) Act 1990 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1
- Hatfield v R [2011] NSWCCA 286
- House v The King [1936] HCA 40; 55 CLR 499
- R v Borkowski [2009] NSWCCA 102; 195 A Crim R 1
- R v Sharrouf [2009] NSWSC 1002
- R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383