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Court of Criminal Appeal 2 December 2016

Hudson v R

[2016] NSWCCA 278

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL CHEQUES DRAWN FOR LARGE SUMS OF MONEY SIGNIFICANT HARM CAUSED TO VICTIMS DELAY PROPERLY TAKEN INTO ACCOUNT APPEAL DISMISSED.

Citation: Hudson v R [2016] NSWCCA 278
Court: NSW Court of Criminal Appeal
Date: 2 December 2016
Judge(s): Hoeben CJ at CL; R A Hulme J; Schmidt J

Background

The appellant was sentenced in the District Court on 16 counts arising from a scheme in 2008 in which she drew seven cheques totalling over $2.26 million from a cancelled chequebook, knowing the underlying account was closed. She also made a false oral representation that she had transferred $200,000 into a solicitor's trust account, causing that solicitor to pay out funds to a third party based on that false assurance.

The offending affected two victims: a solicitor who received several dishonoured cheques and lost $200,000 from her trust account as a result of the false representation, and a creditor who temporarily received a cheque that was subsequently dishonoured after funds had already been disbursed from trust. The appellant was sentenced to an aggregate term of 2 years and 9 months imprisonment, with a non-parole period of 1 year and 6 months.

The appellant sought leave to appeal, arguing that the sentencing judge had made errors in three specific findings bearing on the assessment of her sentence.

  • Whether the sentencing judge's finding that the appellant's conduct involved some degree of planning was open on the evidence
  • Whether the sentencing judge had adequately taken into account the delay between the date of offending (2008) and the date of sentencing (May 2016)
  • Whether the sentencing judge's finding of a significant level of overall criminality was open on the evidence

Decision

Ground 1: Planning. The Court of Criminal Appeal held that the finding of some degree of planning was plainly open on the facts. The appellant had used cheques from a chequebook she knew had been cancelled, signed several of them in a false name ("James Jones"), fabricated a story about a wealthy uncle to lend credibility to one large cheque, and made a precisely timed false phone call to induce her solicitor to disburse funds before a court deadline. The Court found these features collectively supported an inference of deliberate, calculated conduct.

Ground 2: Delay. The Court accepted that the gap of approximately eight years between offending and sentencing was substantial. However, it found the sentencing judge had adequately addressed this factor, noting the judge had expressly referred to delay, acknowledged the limited utility of general deterrence in cases of very long delay, and ultimately imposed what the Court described as a modest sentence. The Court also observed that the modest sentence itself was a strong indicator that delay and the appellant's rehabilitation had been given considerable weight. Even if error had been established, the Court indicated it would not have imposed a lesser sentence given the seriousness of the offending and the importance of general deterrence for this type of fraud.

Ground 3: Overall criminality. The Court found the sentencing judge's characterisation of the offending as involving a significant level of overall criminality was fully supported by the evidence. Large sums were involved, real and serious harm was caused to the victims (including a solicitor whose trust account was depleted), and the conduct was repeated across multiple transactions over several weeks.

Additional observation by Hulme J. R A Hulme J agreed with the proposed orders but added a pointed criticism of the sentencing judge's generic reference to having taken s 21A of the Crimes (Sentencing Procedure) Act 1999 into account. His Honour noted that such a bare recitation conveys nothing meaningful about what factors were considered or what weight they were given. He referred to a line of authority from this Court, dating back to at least 2005, criticising this formulaic approach, and reiterated that more than "mere lip service to the legislation" is required.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A finding of planning in fraud offences does not require elaborate premeditation; repeated use of a known-cancelled chequebook, false signatures, fabricated backstories, and precisely timed false representations were collectively sufficient to support such a finding.
  • Significant delay between offending and sentencing is a recognised mitigating factor, but its adequate treatment can be inferred from the overall modesty of the sentence imposed, not only from explicit reasoning.
  • In dismissing the appeal, the Court confirmed that where error in treating delay is not established, and even where it might hypothetically have been, re-sentencing would not automatically produce a lesser outcome if the underlying offending is sufficiently serious.
  • Under s 21A of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge must do more than recite a generic intention to take aggravating and mitigating factors into account; the reasons must actually identify and weigh the relevant factors.
  • Harm to victims, including financial loss flowing from trust account depletion by a legal practitioner acting in good faith, is a material consideration in assessing the overall seriousness of cheque fraud offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 300(1), 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A
- Criminal Code (Cth), s 135.1(1)

Cases:
- Luong v R [2014] NSWCCA 129
- Moore v R [2016] NSWCCA 185
- R v Mills [2005] NSWCCA 175; 154 A Crim R 40
- R v RMW [2016] NSWCCA 211
- R v Todd (1982) 2 NSWLR 517