Citation: Upadhyaya v R [2017] NSWCCA 162
Court: NSW Court of Criminal Appeal
Date: 7 July 2017
Judges: Leeming JA at [1]; Latham J at [24]; Campbell J at [25]
Background
The appellant was a director of a corporate body that operated two horse studs. He was convicted of 14 counts of defrauding that company and dishonestly obtaining a financial advantage by falsely inflating invoices for hay and oats over approximately six years, with the total amount exceeding $10 million.
At the sentencing hearing, the primary judge imposed an aggregate sentence of 12 years' imprisonment with a non-parole period of 7 years and 9 months. Shortly after sentencing, the judge made a compensation direction in favour of the corporate victim under s 97 of the Victims Rights and Support Act 2013 (NSW) for the maximum permissible amount of $750,000. Senior counsel for the appellant had made no submissions opposing that application at the time.
The appellant sought leave to appeal on two grounds: first, that the sentencing judge failed to take the compensation direction into account as a mitigating factor; and second, that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether leave should be granted to raise, for the first time on appeal, an argument that the $750,000 compensation direction should have been treated as a mitigating factor at sentencing
- Whether the aggregate sentence of 12 years was manifestly excessive, having regard to comparable cases and the financial impact on the corporate victim
Decision
The Court of Criminal Appeal refused leave to add the compensation direction ground and dismissed the appeal against the aggregate sentence.
On the compensation direction ground, Leeming JA identified several reasons why the argument was unsustainable. No submission had been made to the sentencing judge that the compensation direction should reduce the sentence. Critically, the direction had not yet been made when sentence was imposed, so it could not have been a live consideration at that point. The judge had in any event noted the length of imprisonment when exercising her discretion under s 97.
More fundamentally, Leeming JA held that a compensation direction reflects a civil liability that is conceptually distinct from criminal liability. Allowing it to mitigate sentence would ordinarily be erroneous. The direction had not been enforced, and the appellant's Australian assets had already been sold by his bank, meaning the direction caused no demonstrable additional hardship. While his Honour left open whether enforcement-related hardship in extreme circumstances might ever be relevant, he found no such circumstances existed here.
On the manifest excess ground, the Court noted the difficulty in challenging an aggregate sentence while accepting all 14 indicative individual sentences, given the substantial degree of concurrency already applied. The primary judge's reasoning was examined in detail. Her Honour had recognised the significant impact on the corporate victim's operations, while also accepting that this case was distinguishable from those involving the destruction of individual victims' life savings. The Court found no error in her Honour's emphasis on the scale of the financial advantage obtained and the seriousness of the prolonged, premeditated abuse of trust. The appeal was dismissed.
Orders Made
- Leave refused to amend the notice of appeal to add the compensation direction as a separate ground
- Leave to appeal otherwise granted
- Appeal dismissed
Key Takeaways
- A compensation direction under s 97 of the Victims Rights and Support Act 2013 (NSW) reflects an offender's civil liability to the victim, which is conceptually distinct from criminal liability. Only in exceptional circumstances could such a direction play any part in the determination of sentence.
- Where a compensation direction has not been enforced and has caused no demonstrable hardship to an offender, there is no basis to treat it as a mitigating factor at sentencing.
- Under the principle in House v The King, appellate intervention on manifest excess grounds requires the sentence to be unreasonable or plainly unjust. Accepting all individual indicative sentences while challenging the aggregate creates a significant obstacle to establishing that standard.
- The Court of Criminal Appeal confirmed that leave will ordinarily be refused to raise on appeal an argument that counsel deliberately chose not to advance before the sentencing judge, particularly where the omission was not through oversight but because the argument was not then available.
- Under s 24B(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW), courts are prohibited from treating orders under confiscation or forfeiture legislation as mitigating factors. The Court noted, without deciding, that it would be a "peculiar result" if courts were precluded from considering such orders but required to treat compensation directions, which serve a different purpose, as mitigation.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 24B(2)
- Criminal Appeal Act 1912 (NSW)
- Victims Rights and Support Act 2013 (NSW), ss 97, 98, 101, 102
Cases:
- House v The King (1936) 55 CLR 199
- Attorney General of New South Wales v Tho Services Limited (in liquidation) [2016] NSWCCA 221
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58
- Betts v The Queen (2016) 90 ALJR 758
- De Angelis v The Queen [2015] NSWCCA 197
- Dinsdale v The Queen (2000) 202 CLR 321
- Director of Public Prosecutions (Commonwealth) v De La Rosa [2010] NSWCCA 194
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Mundine v R [2017] NSWCCA 97
- R v Kalache (2000) 111 A Crim R 152
- R v Tadrosse (2005) 65 NSWLR 740