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Court of Criminal Appeal 28 July 2017

Siwek v R

[2017] NSWCCA 178

Fraud & dishonesty
CRIMINAL LAW APPEAL SENTENCE WHERE ASSERTED ERRORS WERE NOT MADE OUT SENTENCE NOT MANIFESTLY EXCESSIVE LEAVE TO APPEAL GRANTED

Citation: Siwek v R [2017] NSWCCA 178
Court: NSW Court of Criminal Appeal
Date: 28 July 2017
Judge(s): Hoeben CJ at CL, Adamson J, Bellew J (Bellew J writing)

Background

The applicant was an accounting manager employed by a multinational corporation based in North Sydney. Over approximately eight and a half years, he systematically diverted funds from his employer's bank accounts into his own, exploiting the exclusive access he held to the company's online banking system. The total amount fraudulently obtained across all counts and Form 1 matters exceeded $1.7 million.

The applicant pleaded guilty in the Local Court to nine counts of fraud under the Crimes Act 1900 (NSW) and asked the District Court to take into account three further offences on a Form 1. On 12 February 2016, Judge Woods QC imposed an aggregate non-parole period of three years and eight months, with an additional term of two years and four months.

The applicant appeared unrepresented before the Court of Criminal Appeal and sought leave to appeal against the sentence on four grounds.

  • Whether the sentencing judge erred by failing to apply a discount to reflect partial repayment of the misappropriated funds
  • Whether the sentencing judge erred by failing to apply a discount to reflect the applicant's gambling addiction
  • Whether the aggregate sentence was manifestly excessive
  • Whether the maximum penalties under the relevant provisions were intended to apply to this type of offending

Decision

On the question of partial repayment, the Court found no error. The sentencing judge had expressly acknowledged the repayment as a mitigating factor and incorporated it into the overall sentencing exercise. There was no requirement to identify and quantify a specific discount for repayment as a discrete step, provided the factor was genuinely taken into account, and the sentencing judge had done precisely that.

On the gambling addiction, the Court accepted that problem gambling can be relevant to sentencing, particularly where a causal link between the addiction and the offending is established. However, the Court found the sentencing judge had considered this factor. The difficulty for the applicant was that the gambling addiction explained his motive but did not reduce his moral culpability to any significant degree, given the sustained and deliberate nature of the fraud over many years.

On manifest excess, the Court found the sentence was not disproportionate to the gravity of the offending. The sentencing judge had identified all relevant mitigating factors, including the guilty plea, the applicant's age, his prior good character, and his personal circumstances. The Court also noted that none of the indicative individual sentences approached the applicable maximum penalties.

The applicant relied on an unreported District Court decision, R v Roth, to support his manifest excess argument. The Court rejected this comparison, noting that Roth involved a substantially lower sum and an offender with a diagnosed mental illness creating a causative link to the offending. Neither factor was present here. The Court reiterated the caution required when comparing sentences across cases.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing judge is not required to apply a separately identified or quantified discount for partial repayment, provided that factor is genuinely taken into account in the overall sentencing exercise.
  • Where a gambling addiction is raised in mitigation, it carries greater weight when a causative link between the addiction and the offending can be demonstrated; in this case, the addiction explained the motive but did not significantly reduce moral culpability given the sustained and deliberate nature of the conduct.
  • In dismissing the appeal, the Court of Criminal Appeal reaffirmed that comparisons with sentences in other cases must be approached with care, and that the entirety of the circumstances must be considered before drawing any parallel.
  • No error arises merely because the sentencing judge did not identify a discrete percentage discount for each mitigating factor, provided the remarks on sentence confirm those factors were weighed.
  • An aggregate non-parole period of three years and eight months was not manifestly excessive for sustained employee fraud totalling over $1.7 million committed across more than eight years by a person in a position of substantial trust.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA(1) and 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- Assi v R [2006] NSWCCA 257
- Flaherty v R; R v Flaherty (2016) 92 NSWLR 290; [2016] NSWCCA 188
- Johnston v R [2017] NSWCCA 53
- Markarian v R (2005) 228 CLR 357; [2005] HCA 25
- R v Weismantel [2016] NSWCCA 204
- R v Roth [2015] NSWDC, 18 December 2015 (unreported)
- RLS v R [2012] NSWCCA 236