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7
Court of Criminal Appeal 16 April 2015

Tweedie v R

[2015] NSWCCA 71

Fraud & dishonestyTheft & property
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE DISHONESTY OFFENCES FRAUD LARCENY

Citation: Tweedie v R [2015] NSWCCA 71
Court: NSW Court of Criminal Appeal
Date: 16 April 2015
Judges: R A Hulme J (primary reasons); Basten JA (additional reasons); Adamson J (agreeing)

Background

The applicant was sentenced in the District Court at Gosford in March 2014 for 32 offences: 27 counts of fraud (dishonestly obtaining property by deception), 4 counts of attempted fraud, 1 count of larceny, and 7 summary offences of goods in custody. The offending involved using stolen credit cards at retail outlets on the Central Coast over approximately six weeks in mid-2013, obtaining goods worth around $22,000, with a total value sought of $25,000 to $30,000. A separate larceny involved stealing a wallet from a doctor's consulting room.

The sentencing judge imposed an aggregate sentence of 4 years' imprisonment with a non-parole period of 3 years, commencing 14 February 2014. The applicant had a significant criminal history, including a prior sentence for robbery in company, and was on parole at the time of the offending. Parole was revoked following his arrest.

The applicant sought leave to appeal against sentence on three grounds: that the sentencing judge denied him procedural fairness by rejecting his evidence of remorse; that the judge misapplied the principles of aggregate sentencing; and that the judge incorrectly applied the guilty plea discount to the aggregate sentence rather than to the individual indicative sentences.

  • Whether the sentencing judge denied the applicant procedural fairness by rejecting his oral evidence of remorse without challenging it in cross-examination and without indicating during the hearing that it would not be accepted.
  • Whether the judge properly applied the principles of aggregate sentencing under the relevant provisions of the Crimes (Sentencing Procedure) Act 1999 (NSW), including the totality principle.
  • Whether the discount for a guilty plea under s 22 of that Act should be applied to the aggregate sentence or instead taken into account at the level of the individual indicative sentences.

Decision

Ground 1: Procedural fairness and remorse. The Court held that no denial of procedural fairness occurred. Under s 21A(3)(i) of the Crimes (Sentencing Procedure) Act 1999, the onus of establishing remorse rests on the offender. An offender who gives evidence before a sentencing court cannot assume that evidence will be accepted simply because it is not challenged in cross-examination, or because neither the prosecutor nor the court signals disbelief during the hearing. Basten JA added that procedural unfairness requires either a denial of the opportunity to call evidence or make submissions, or a representation that dissuaded the offender from pursuing a particular course. No such circumstances arose here.

The sentencing judge's rejection of the applicant's remorse evidence was open on the material before him. The cross-examination that did occur, addressing the applicant's criminal record, prior drug-related conduct, and failure to take advantage of earlier rehabilitation opportunities, provided a foundation for doubting the sincerity of his expressed remorse. No suggestion was made at the hearing that further evidence would have been called, or further submissions made, had the applicant anticipated the judge's adverse finding.

Ground 2: Aggregate sentencing principles. The Court found no error in the judge's application of the aggregate sentencing regime. The judge was required to assess the criminality of the individual offences, which he did, and was not obliged to detail step-by-step the process of accumulation or the operation of the totality principle. The indicative sentences fixed for individual offences reflected an appropriate assessment of each offence's seriousness, and the aggregate sentence was not shown to be unreasonable or unjust.

Ground 3: Guilty plea discount and aggregate sentencing. The Court confirmed that a discount for a guilty plea under s 22 of the Crimes (Sentencing Procedure) Act 1999 is not to be applied to an aggregate sentence as a whole. Rather, the discount is a matter to be taken into account at the stage of determining the indicative sentences for individual offences. No error was established in the way the sentencing judge approached this question.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court is not required to signal during the hearing that it doubts an offender's evidence of remorse before later rejecting it; an offender bears the onus of establishing remorse and cannot assume acceptance of unchallenged evidence.
  • Procedural fairness in sentencing proceedings is engaged only where an offender has been denied the opportunity to call evidence or make submissions, or where a representation has been made that dissuaded the offender from a course they otherwise intended to take.
  • Cross-examination on an offender's criminal record and prior failure to engage with rehabilitation can provide a sufficient basis for a sentencing court to give little or no weight to assertions of remorse, even where those assertions are not directly challenged in cross-examination.
  • Under the aggregate sentencing regime, a judge assessing individual offences is not obliged to detail the arithmetic process of accumulation or the application of the totality principle, provided the criminality of each offence has been appropriately assessed.
  • The guilty plea discount under s 22 of the Crimes (Sentencing Procedure) Act 1999 applies at the level of individual indicative sentences within an aggregate, not to the aggregate sentence as a whole.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 117 (larceny), 192E (fraud), 527C (goods in custody)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22, 53A
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Dang v R [2014] NSWCCA 47
- Dinsdale v The Queen (2000) 202 CLR 321
- JM v R [2014] NSWCCA 297
- Liles v R (Cth) [2014] NSWCCA 289
- R v Brown [2012] NSWCCA 199
- R v Nykolyn [2012] NSWCCA 219
- Subramaniam v R [2013] NSWCCA 159
- Toole, Kurt v R; Toole, Joshua v R [2014] NSWCCA 318
- Truong v R; R v Le; Nguyen v R; R v Nguyen [2013] NSWCCA 36