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9
Court of Criminal Appeal 19 August 2016

Zhao v R

[2016] NSWCCA 179

Fraud & dishonesty
CRIMINAL LAW FRAUD EXTENSION OF TIME GRANTED GROUNDS WITHOUT MERIT

Citation: Zhao v R [2016] NSWCCA 179
Court: NSW Court of Criminal Appeal
Date: 19 August 2016
Judges: Hoeben CJ at CL, Button J, N Adams J

Background

The applicant was the sole director and shareholder of two companies involved in exporting waste paper to China. She orchestrated a complex fraud against a Californian company, operating under a pseudonym and using forged Bills of Lading to obtain payment for shipping containers of goods that had never been dispatched. The total benefit she received exceeded AU$1 million across the primary count and a related matter dealt with on a Form 1.

In April 2015, the District Court at Sydney sentenced the applicant to three years' imprisonment, comprising a non-parole period of 20 months and an additional term of 16 months, following her guilty plea. The sentencing judge applied a 10% discount for the utilitarian value of the late plea and also ordered compensation of AU$750,000.

The applicant sought leave to appeal that sentence, filing her notice approximately 10 months outside the 28-day statutory time limit. She explained the delay by reference to her unfamiliarity with Australian legal culture and her origins in China, having only learned of her appeal rights from another inmate.

  • Whether an extension of time should be granted for the late filing of the application for leave to appeal
  • Whether the sentencing judge erred in assessing the objective seriousness of the offending
  • Whether the discount of 10% applied for the guilty plea was manifestly inadequate
  • Whether the total sentence was manifestly excessive
  • Whether the 10% discount was properly reflected in the final sentence calculation, given the sentencing judge did not expressly nominate a starting point

Decision

The Court accepted the applicant's explanation for the delay in filing and granted the extension of time, treating the interests of justice as favouring that approach. The Crown did not actively oppose the extension, though it noted the merits of the application were relevant to the question.

On the substance of the appeal, the Court found none of the five grounds had merit. It confirmed that an appellate court may only intervene in a sentence where identifiable error is established, applying the well-known principles from House v The King. No such error was demonstrated in the sentencing judge's assessment of the objective seriousness of the offending or in his overall approach to the task.

Regarding the guilty plea discount, the Court noted the plea was entered late and was therefore of limited utilitarian value. A discount of 10% in those circumstances fell within the range available to the sentencing judge and disclosed no error.

On the question of transparency in the calculation, the Court rejected the submission that the discount had been "lost." Although the sentencing judge did not expressly state a starting point, the head sentence of 36 months clearly implied a starting point of 40 months after the 10% discount was applied. There is no requirement for a sentencing judge to expressly quantify that starting point.

Orders Made

  • Extension of time for filing the application for leave to appeal granted to 4 March 2016
  • Leave to appeal against sentence refused

Key Takeaways

  • A sentencing judge is not required to expressly nominate a numerical starting point before applying a guilty plea discount, provided the final sentence is consistent with the discount having been applied.
  • Where a guilty plea is entered late, a discount of 10% for its utilitarian value falls within the available range and does not constitute an error warranting appellate intervention.
  • Appellate courts will only disturb a sentence where identifiable error is established under the principles in House v The King; a mere submission that the sentence is excessive is insufficient.
  • In dismissing all five grounds, the Court of Criminal Appeal confirmed that complexity and scale of a fraud (here exceeding AU$1 million involving forged banking documents) are properly weighed in assessing objective seriousness.
  • An extension of time for filing a leave application may be granted where the applicant demonstrates a satisfactory explanation for the delay, even a lengthy one, particularly where unfamiliarity with local legal processes contributed to the late filing.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 7, 21A, 32
- Criminal Appeal Act 1912 (NSW), s 10(1)(a)

Cases
- House v The King [1936] HCA 40; (1936) 55 CLR 499
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- R v Thomson and Houlton [2000] NSWCCA 309; 49 NSWLR 383
- Bland v R [2014] NSWCCA 82; 241 A Crim R 51
- Bullock v R [2016] NSWCCA 131
- Collier v R [2012] NSWCCA 213
- De Angelis v R [2015] NSWCCA 197
- Purtill v R [2016] NSWCCA 80
- R v Cramp [2004] NSWCCA 264
- R v Kennedy [2016] NSWCCA 123