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Supreme Court 29 April 2016

R v Pratten (No 25)

[2016] NSWSC 539

Fraud & dishonesty
CRIMINAL LAW SENTENCE GUILTY VERDICT AFTER TRIAL SENTENCE IMPOSED.

Citation: R v Pratten (No 25) [2016] NSWSC 539
Court: Supreme Court of New South Wales
Date: 29 April 2016
Judge(s): Rothman J

Background

The offender, a director of a financial services company, was convicted after a retrial of seven counts of dishonestly obtaining a financial advantage by deception, contrary to s 134.2(1) of the Criminal Code Act 1995 (Cth). Each count related to a separate financial year between 2003 and 2009, during which the offender deliberately understated his income in lodged tax returns.

This was, in fact, the second conviction. A first jury had convicted the offender in June 2012, but a collateral challenge to the jurisdiction of the court, combined with subsequent appeals, led to that conviction being set aside and a retrial ordered. The retrial resulted in a fresh guilty verdict on 9 September 2015.

Sentencing was significantly delayed throughout the proceedings, for reasons including the offender's own jurisdictional challenge, the withdrawal of an appeal without notifying the court, illness of the presiding judge, and the time taken to conduct two full trials. The offender had been subject to bail conditions for most of the period since 2010, with 99 days spent in custody.

  • What sentence was appropriate for seven counts of obtaining a financial advantage by deception under the Criminal Code Act 1995 (Cth), following a retrial?
  • How should the court treat the significant delay between charge and re-sentencing, including delay partly caused by the offender?
  • What sentencing principles apply to white-collar fraud offences under the Commonwealth sentencing regime in Part 1B of the Crimes Act 1914 (Cth)?
  • Whether, on resentencing after retrial, the sentence should exceed that imposed after the first trial?
  • How should the court determine the quantum of financial advantage obtained, given the jury was required only to be unanimous on at least one item of income?

Decision

Rothman J applied the Commonwealth sentencing framework under Part 1B of the Crimes Act 1914 (Cth), which requires the court to impose a sentence of appropriate severity having regard to all circumstances, and to impose imprisonment only where no other sentence is appropriate. His Honour identified general deterrence as a particularly weighty factor in white-collar fraud, reasoning that such offences are planned and deliberate rather than spontaneous.

On the question of delay, the court acknowledged that the prolonged period during which proceedings had been on foot, much of it under bail conditions, operated in the offender's favour. The offender was given credit for the extended period of conditional liberty since 2010 and for the 99 days already spent in custody. However, Rothman J emphasised that no amount of delay could justify a sentence that was otherwise inappropriate for the gravity of the offending.

Regarding the resentencing following a retrial, the court adopted the principle that there is a prima facie position against imposing a more severe sentence on resentencing than was imposed at first instance, absent substantially different evidence or manifest inadequacy in the original sentence. His Honour concluded that the sentence should sit at the lowest end of the appropriate range, reflecting the offender's subjective circumstances including health, the effect on family, and the compounding delays.

The court declined to treat specific deterrence as a significant factor but imposed a full-time custodial sentence as the only appropriate option given the seriousness of the sustained, deliberate fraud. An unusually short non-parole period relative to the head sentence was fixed, in part to account for the resentencing context and what the court characterised as the effect of "double jeopardy."

Orders Made

  • Counts 1, 2 and 3 (returns for 2003, 2004 and 2005): convicted and sentenced to three years' imprisonment, wholly concurrent, commencing 20 January 2016 and concluding 19 January 2019.
  • Counts 4, 5, 6 and 7 (returns for 2006, 2007, 2008 and 2009): convicted and sentenced to four years' imprisonment, concurrent with each other, commencing 20 January 2017 and concluding 19 January 2021.
  • Aggregate sentence: five years' imprisonment, commencing 20 January 2016 and concluding 19 January 2021.
  • Non-parole period: two years, commencing 20 January 2016 and concluding 19 January 2018.

Key Takeaways

  • In sentencing for Commonwealth offences, a court must impose imprisonment only where satisfied that no other sentence is appropriate, and must provide reasons for any custodial sentence: ss 17A(1) and 17A(2) of the Crimes Act 1914 (Cth).
  • White-collar fraud involving planned and deliberate deception attracts substantial weight to general deterrence as a sentencing objective, more so than offences committed impulsively.
  • A prima facie principle applies against imposing a more severe sentence on resentencing after retrial than was imposed at first instance; departure from that position requires substantially different evidence or a manifestly inadequate original sentence.
  • Prolonged delay in proceedings, even where partly attributable to the offender, operates as a mitigating factor, particularly where the offender has spent an extended period subject to bail conditions.
  • Sentencing remains an intuitive process requiring the court to balance often-competing objectives including protection of society, deterrence, retribution, and reform, and no single objective can be considered in isolation: Veen v R (No 2) (1988) 164 CLR 465.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 134.2(1)
- Crimes Act 1914 (Cth), Part 1B, ss 16A, 17A
- Evidence Act 1995 (NSW), s 184

Cases
- Veen v R (No 2) [1988] HCA 14; (1988) 164 CLR 465