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Court of Criminal Appeal 27 October 2017

Dagher v R

[2017] NSWCCA 258

Fraud & dishonesty
CRIMINAL LAW SENTENCING NEED FOR RE

Citation: Dagher v R [2017] NSWCCA 258
Court: Court of Criminal Appeal, New South Wales
Date: 27 October 2017
Judge(s): Leeming JA, Johnson J, Adamson J (judgment delivered by Adamson J)

Background

The appellant was convicted of one count of obtaining a financial advantage by deception under the Criminal Code Act 1995 (Cth). Between May 2013 and November 2015, she fraudulently claimed Centrelink Carer Payment and Carer Allowance in respect of two of her children, knowing the children did not qualify. She paid co-offenders $8,000 to assist with fabricating the required documentation, and she took active steps to sustain the fraud during a Centrelink review. The total amount dishonestly obtained was $66,447.53.

At first instance, Delaney ADCJ sentenced the appellant to 2 years' imprisonment, with a direction for release after 12 months on a self-recognisance of $500 to be of good behaviour for a further 12 months. The sentencing judge was more accustomed to state sentencing legislation and, on several occasions during the hearing, sought assistance from the parties about the applicable federal provisions.

The appellant sought leave to appeal on three grounds: that the sentencing judge had wrongly found she showed no remorse; that the sentencing judge had failed to comply with s 16AC of the Crimes Act 1914 (Cth), which requires the court to specify what sentence would have been imposed but for the offender's undertaking to cooperate with law enforcement; and that the sentencing judge had failed to account for the effect of imprisonment on her family. The Crown conceded the second ground, and the parties agreed that re-sentencing was required on that basis alone.

  • Whether the sentencing judge's failure to specify, as required by s 16AC(2) of the Crimes Act 1914 (Cth), the sentence that would have been imposed but for the appellant's undertaking to cooperate with law enforcement constituted an error of law requiring correction.
  • Whether a re-sentencing exercise was required even though the substituted sentence was, in numerical terms, identical to the original sentence.
  • Whether the Court of Criminal Appeal should re-sentence the appellant itself or remit the matter to the original sentencing judge.

Decision

Section 16AC of the Crimes Act 1914 (Cth) imposes a mandatory obligation on a court that reduces a sentence because of an offender's undertaking to cooperate with law enforcement: it must state that the sentence is being reduced for that reason and must specify what sentence would have been imposed but for that reduction. The Director of Public Prosecutions may then appeal if the offender fails to honour the undertaking, and the court on appeal may increase the sentence accordingly. The sentencing judge here applied what appeared to be a rolled-up discount for both past and future assistance, but did not identify the sentence that would have been imposed absent the undertaking. That omission was an error of law.

The Court held that this error caused the sentencing discretion to miscarry and required re-sentencing, even though the sentence ultimately imposed on re-sentencing was identical to the original. The statutory purpose of s 16AC is to create a transparent mechanism that enables the DPP to enforce the undertaking: without a specified baseline sentence, that mechanism cannot operate. Numerical equivalence between the original and substituted sentences did not cure the defect in the original sentencing process.

The Court declined to remit the matter to the original sentencing judge (as had been proposed by the Crown by reference to R v Whitney) and instead conducted the re-sentencing exercise itself. Having considered the objective seriousness of the offending, the appellant's limited remorse, her plea of guilty, her promise of future assistance, and the relevant factors under s 16A of the Crimes Act, the Court imposed an effectively identical sentence but properly specified that the sentence without the cooperation discount would have been 2 years and 4 months.

On the question of advocacy, the Court noted that the sentencing judge had expressly sought the parties' assistance with the applicable federal provisions. Neither the Crown nor the appellant's representative raised s 16AC, despite its obvious relevance. The Court identified this as a failure of duty and observed that prosecutors in particular are obliged by professional conduct rules to draw the court's attention to legislation bearing on sentence and to assist in avoiding appealable error.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence of 2 years' imprisonment commencing 22 May 2017 imposed in lieu of the original sentence.
  • Direction that the appellant be released after serving 1 year, on 21 May 2018, on recognisance to be of good behaviour for 1 year, upon giving self-surety of $500.
  • Notation pursuant to s 16AC that the sentence that would have been imposed but for the appellant's promise of future assistance would have been 2 years and 4 months' imprisonment, with release after 1 year and 2 months on 21 July 2018, on recognisance of $500 to be of good behaviour for 1 year and 2 months.

Key Takeaways

  • Under s 16AC of the Crimes Act 1914 (Cth), a court that reduces a federal sentence because of a cooperation undertaking must expressly state that fact and specify the sentence that would have been imposed without the reduction. Failure to do so is an error of law that requires re-sentencing.
  • Re-sentencing is necessary even where the substituted sentence is numerically identical to the original. The obligation in s 16AC serves a distinct statutory purpose: it creates the mechanism by which the DPP may seek to increase the sentence if the offender later fails to cooperate.
  • The Court of Criminal Appeal confirmed it may conduct the re-sentencing exercise itself rather than remit to the original sentencing judge, even where the Crown proposes remittal.
  • Prosecutors carry a professional duty, reflected in the Legal Profession Uniform Conduct (Barristers) Rules 2015 and the Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, to inform the sentencing court of all legislation bearing on the appropriate sentence and to assist the court in avoiding appealable error. The failure of all parties to raise s 16AC in this case was the direct cause of the appeal.
  • Where a relatively short sentence with a full-time custody component is warranted on the same evidence, re-sentencing will commonly produce an outcome the same as or similar to the original sentence.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), ss 16A, 16AC, 17A, 20
- Criminal Code Act 1995 (Cth), s 134.2
- Criminal Appeal Act 1912 (NSW), ss 6, 12
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Judiciary Act 1903 (Cth), s 68
- Legal Profession Uniform Conduct (Barristers) Rules 2015, r 95
- Legal Profession Uniform Law Australian Solicitors' Conduct Rules 2015, rr 29.12.2, 29.12.3

Cases:
- Bui v Director of Public Prosecutions (Cth) (2012) 244 CLR 638; [2012] HCA 1
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- R v Annecchini (NSWCCA, 24 April 1996, unrep)
- R v Gallagher (1991) 23 NSWLR 220
- R v Hawkins (1989) 45 A Crim R 430
- R v Whitney (NSWCCA, 6 November 1997, unrep)