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Court of Criminal Appeal 23 June 2017

Zaky v R (Cth)

[2017] NSWCCA 141

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL SINGLE GROUND OF APPEAL INCORRECT STATEMENT OF MAXIMUM PENALTY NO ERROR ESTABLISHED

Citation: Zaky v R (Cth) [2017] NSWCCA 141
Court: Court of Criminal Appeal, NSW
Date: 23 June 2017
Judges: Hoeben CJ at CL, Garling J, Bellew J

Background

The appellant pleaded guilty in the District Court to seven Commonwealth fraud offences: one count of defrauding the Commonwealth under s 29D of the Crimes Act 1914 (Cth), and six counts of obtaining a financial advantage by deception under s 134.2(1) of the Criminal Code 1995 (Cth). The offending involved a prolonged scheme in which the appellant used dual identities to claim Centrelink benefits totalling approximately $56,600 while concealing his employment and property ownership over a period spanning 1999 to 2008.

At the outset of her sentencing remarks, the sentencing judge stated that each offence carried a maximum of 20 years imprisonment. The correct maximum for each offence was 10 years. The appellant was sentenced to a total term of five years imprisonment, with release on a recognisance release order after two and a half years.

The appellant sought leave to appeal against sentence on the single ground that the sentencing judge's misstatement of the maximum penalty constituted an error of law that infected the sentence imposed.

  • Whether the sentencing judge's reference to an incorrect maximum penalty of 20 years (rather than the correct 10 years) constituted a material error that warranted appellate intervention.
  • Whether, if material error were established, the sentence should be reduced on a fresh exercise of the sentencing discretion.

Decision

Hoeben CJ at CL found that the misstatement of the maximum penalty was an inadvertent slip and did not demonstrate that the sentencing judge actually applied an incorrect maximum when determining the sentence. Several contextual factors supported this conclusion. The judge had conducted her own research into the correct maximum penalties during the course of proceedings. A related earlier judgment by this Court (concerning the appellant's wife) had set out the correct maximum penalty, and the sentencing judge was aware of that decision. The exchange between the judge and counsel on the final day of submissions further indicated that the correct maximum was in her Honour's contemplation when sentence was handed down.

The court drew on the reasoning in Newton v R [2009] NSWCCA 128, treating the misstatement as an inadvertent error that had no practical effect on the penalty imposed. Accordingly, no appealable error was established.

Hoeben CJ at CL went on to consider the position if that assessment were wrong. Under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court would be required to exercise the sentencing discretion afresh rather than automatically reducing the sentence. Having regard to the unchallenged factual findings, including the objective seriousness of the offending and the appellant's role as the instigator of the scheme, his Honour concluded that any sentence imposed on a fresh exercise of the discretion would be no less than that handed down by the sentencing judge. Garling and Bellew JJ agreed with both the orders and the reasoning.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing judge's misstatement of the applicable maximum penalty does not automatically establish appellate error. The Court of Criminal Appeal examined the totality of the sentencing proceedings to determine whether the correct maximum was in fact in the judge's contemplation.
  • Where clear contextual indicators exist that a sentencing judge was aware of the correct maximum penalty, an incorrect recitation at the outset of sentencing reasons may be treated as an inadvertent slip rather than a material error.
  • Under s 6(3) of the Criminal Appeal Act 1912 (NSW), establishing sentencing error does not automatically result in a reduced sentence. The appellate court must re-exercise the sentencing discretion afresh and is not required to impose a lesser sentence where the original penalty falls within the proper range.
  • No error was established on the facts, and the alternative analysis confirmed that the sentence imposed was within the appropriate range for offending of this nature and duration.
  • A prior judgment of the same Court concerning a co-offender, which correctly stated the applicable maximum penalty, was treated as relevant context in assessing the sentencing judge's actual awareness of the correct law.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 29D
- Criminal Code 1995 (Cth), s 134.2(1)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases:
- Stephen Leslie Baxter v The Queen [2007] NSWCCA 237; 173 A Crim R 284
- Bidgood v R [2016] NSWCCA 138
- Donaghey v R [2015] NSWCCA 119
- Hurst v R [2017] NSWCCA 114
- Kentwell v The Queen [2014] HCA 37; 252 CLR 601
- Stephen Leslie Newton v R [2009] NSWCCA 128
- Zaky v R [2015] NSWCCA 161