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Court of Criminal Appeal 16 September 2015

Williamson v R

[2015] NSWCCA 250

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE NO ERROR NO ERROR NO ERROR APPEAL DISMISSED

Citation: Williamson v R [2015] NSWCCA 250
Court: Court of Criminal Appeal, New South Wales
Date: 16 September 2015
Judges: Macfarlan JA, R A Hulme J, Wilson J

Background

The appellant was the General Secretary of the Health Services Union in New South Wales from 1995 to 2012. He held extensive financial and administrative authority over the Union, which was funded by member contributions. Between 2006 and 2012, he used that position to commit a series of fraud and obstruction-related offences.

The principal fraud involved directing Union payments totalling $338,470 to a business registered in his wife's name for services that were never provided. When an internal inquiry and police investigation commenced, the appellant recruited others to conceal his wrongdoing, including by producing false invoices and pressuring colleagues to give misleading accounts to investigators.

In the District Court, Judge Frearson SC imposed an aggregate sentence of 7 years 6 months with a non-parole period of 5 years following guilty pleas to four offences, with four further offences taken into account. The appellant sought leave to appeal against that sentence on multiple grounds.

  • Whether the sentencing judge failed to properly identify and apply a 25% discount for the guilty plea under s 22 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether the judge failed to give effect to his finding of special circumstances
  • Whether the judge erred in applying general and specific deterrence, particularly given the appellant's mental health condition
  • Whether the judge overstated the seriousness of the offences
  • Whether the judge erred by failing to quantify any discount for assistance to authorities under s 23(4) of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

Guilty plea discount (Grounds 1 and 2): The Court found no error in the sentencing judge's treatment of the guilty plea discount. The judge had expressly referred to the 25% discount early in his remarks on sentence, and the Court confirmed that mathematical precision is not required when a sentencing judge applies a discount. Provided the judge identifies the discount and has it in mind throughout the sentencing exercise, it is not necessary to recite the percentage at every step. The argument that the discount was not actually applied was rejected.

Mental health and deterrence (Ground 5): The Court found that the sentencing judge had given careful and detailed consideration to the appellant's mental condition when addressing general and specific deterrence. No error was established in the judge's approach. The judge had not simply ignored the condition; he had taken it into account in the manner the law requires.

Assistance to authorities (Ground 7): The Court rejected the argument that s 23(4) of the Crimes (Sentencing Procedure) Act 1999 mandated a quantified statement of the sentence that would otherwise have been imposed. Under s 23(1), reducing a sentence on account of assistance is discretionary. The obligation in s 23(4) to identify the sentence that would otherwise have been imposed is only triggered if the court actually decides to impose a lesser penalty on that basis. Because the sentencing judge concluded that the assistance provided did not warrant any reduction, no quantification was required. Grounds 4 and 6 were abandoned before the hearing, and the Court held that Ground 8 (totality of error) did not arise given none of the substantive grounds succeeded.

Orders Made

  • Extension of time to file notice of application for leave to appeal against sentence until 7 May 2015 granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Mathematical precision is not required when a sentencing judge applies a guilty plea discount. Provided the discount is identified and kept in mind throughout sentencing, the absence of a repeated percentage calculation at each step does not constitute error.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), reducing a sentence for assistance to authorities is a matter of judicial discretion, not obligation. The mandatory requirement under s 23(4) to state the sentence that would otherwise have been imposed only arises if the court has first decided to grant a reduction.
  • No error arises from a sentencing judge's treatment of general deterrence where the judge has given genuine and careful consideration to the offender's mental health condition, even if the condition does not ultimately reduce the weight given to that sentencing factor.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that where experienced counsel did not raise a particular argument at the sentencing hearing, this is a relevant consideration when assessing whether the sentencing judge erred by failing to address that issue.
  • Grounds of appeal that are merely derivative of other grounds (such as a global "combination of errors" ground) do not require independent determination where none of the underlying grounds succeed.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) ss 176A, 192H, 351A
- Crimes (Sentencing Procedure) Act 1999 (NSW) ss 22, 23, 53A

Cases:
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Markarian v The Queen [2005] HCA 25; 228 CLR 357
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Akkawi v R; Akkawi v R [2012] NSWCCA 11
- R v Cahill [2015] NSWCCA 53
- Rios v R [2012] NSWCCA 8
- R v Edwards (1996) 90 A Crim R 510
- R v Wright (1997) 93 A Crim R 48