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Court of Criminal Appeal 15 August 2016

Wiriyanjara v R

[2016] NSWCCA 167

Fraud & dishonesty
CRIMINAL LAW UNREPRESENTED APPLICANT S 178BA(1) OF THE CRIMES ACT

Citation: Wiriyanjara v R [2016] NSWCCA 167
Court: NSW Court of Criminal Appeal
Date: 15 August 2016
Judges: Payne JA at [1]; R A Hulme J at [2]; Adamson J at [62]

Background

The applicant was convicted by jury of 27 counts of dishonestly obtaining a financial advantage by deception under s 178BA(1) of the Crimes Act 1900 (NSW), following a two-week trial in August 2012. He was sentenced in March 2013 by Judge Hock in the District Court to an aggregate term of 8 years' imprisonment with a non-parole period of 5 years. The offending involved elaborate deceptions of three victims over a five-year period from 2004 to 2009, resulting in total losses of approximately $963,900.

The applicant filed a notice of intention to appeal shortly after sentencing, but that notice expired in March 2014. He did not file a formal application for leave to appeal until March 2016, three years after sentencing. He appeared before the Court of Criminal Appeal unrepresented.

The Crown opposed any extension of time, arguing the proposed appeal lacked merit. The Court accordingly turned to the substance of the proposed grounds to determine whether granting the extension would serve the interests of justice.

  • Whether an extension of time should be granted to an unrepresented applicant who filed his application three years after sentencing, with an inadequate explanation for the delay
  • Whether the sentencing judge erred in her assessment of the applicant's medical and cognitive circumstances
  • Whether fresh or new evidence of medical issues or the experience of protective custody should be admitted on appeal
  • Whether the aggregate sentence of 8 years with a 5-year non-parole period was manifestly excessive

Decision

On the question of delay, the Court found the explanation offered by the applicant for the three-year gap was both inaccurate and inadequate. However, consistent with the approach in Kentwell v The Queen, the Court proceeded to assess the merits of the proposed appeal in order to determine whether an extension was in the interests of justice.

Regarding the medical and cognitive evidence, R A Hulme J found that the sentencing judge had properly engaged with the applicant's history of subarachnoid haemorrhage and the evidence of possible cognitive impairment. Although the applicant did not give evidence at sentencing and had provided false accounts of his background to medical experts, the judge accepted the medical history and formed the view that any cognitive difficulties played a relatively insignificant role in the offending. No error in that approach was identified.

The applicant sought to tender fresh evidence on appeal relating to medical issues and his experience of protective custody. The Court found no principled basis on which to receive that material. The evidence either could have been available at sentencing or did not bear sufficiently on the sentence that was imposed.

On manifest excess, the Court applied the well-established principle that appellate intervention requires the applicant to demonstrate the sentence was unreasonable or plainly unjust, not merely that the appellate court might have sentenced differently. Taking into account the sustained and intricate nature of the deceptions, the significant financial harm to three victims, the applicant's criminal antecedents, his lack of remorse, his maintenance of innocence, and the limited mitigating circumstances available to him, the Court was not persuaded the sentence fell outside the available discretionary range. None of the proposed grounds had merit, and the extension of time was refused.

Orders Made

  • Extension of time in which to apply for leave to appeal against sentence refused.

Key Takeaways

  • In determining whether to grant an extension of time to appeal, the Court of Criminal Appeal will assess the merits of the proposed grounds to evaluate whether an extension serves the interests of justice, following Kentwell v The Queen (2014) 252 CLR 601.
  • A sentencing court's treatment of medical and cognitive evidence will not be disturbed on appeal where the judge has properly engaged with that material and reached a conclusion that is open on the evidence.
  • No principled basis exists for admitting fresh evidence on a sentence appeal where that evidence could have been made available at first instance or does not materially affect the sentencing outcome.
  • Refusing the extension, the Court confirmed that manifest excess is not established simply because an appellate court might have imposed a different sentence; the applicant must show the sentence was unreasonable or plainly unjust.
  • Where an offender maintains innocence, shows no remorse, has a relevant criminal history, and limited subjective mitigation, those factors collectively support the imposition of a substantial custodial sentence for sustained and serious fraud offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW) s 178BA (since repealed)
- Crimes Act 1914 (Cth) s 16G
- Crimes (Sentencing Procedure) Act 1999 (NSW) s 44

Cases:
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Alrubae v R [2016] NSWCCA 142
- FP v R [2012] NSWCCA 182; 224 A Crim R 82
- Hello v R; El-Skaf v R; Bakkour v R; Hosainy v R [2010] NSWCCA 311
- Jiang v R [2010] NSWCCA 277
- Khoury v R [2011] NSWCCA 118
- R v Cappadona & Anor [2001] NSWCCA 194; 122 A Crim R 52
- R v Cartwright (1989) 17 NSWLR 243
- R v Cramp [2004] NSWCCA 264
- R v Fidow [2004] NSWCCA 172
- R v Hare [2007] NSWCCA 303
- R v Hemsley [2004] NSWCCA 228
- R v Kilpatrick [2005] NSWCCA 351; 156 A Crim R 478
- R v Todd [1982] 2 NSWLR 517
- R v Webb [2004] NSWCCA 330; 149 A Crim R 167