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Court of Criminal Appeal 6 August 2018

Pereira v R

[2018] NSWCCA 171

Fraud & dishonesty
SENTENCING APPEAL AGAINST SENTENCE OBTAIN MONEY BY DECEPTION AGENT CORRUPTLY RECEIVE BENEFIT APPLICANT DEFRAUDED EMPLOYER OF $3.2M APPEAL AGAINST SENTENCE

Citation: Pereira v R [2018] NSWCCA 171
Court: NSW Court of Criminal Appeal
Date: 6 August 2018
Judge(s): Hoeben CJ at CL, Price J, Davies J

Background

The appellant was a senior procurement manager at Coca-Cola Amatil (CCA) who, between 2004 and 2015, participated in a series of fraudulent schemes that caused his employer a total loss of approximately $3.2 million. The offending involved corrupt arrangements with executives at Orix Corporation Australia, the company managing CCA's vehicle fleet, and included the receipt of cash commissions, personal benefits from a secret slush fund, a Mercedes-Benz worth $145,000, and payments channelled through a shell company established to conceal the appellant's involvement.

The appellant pleaded guilty in the Local Court and was sentenced in the District Court to an aggregate term of six years' imprisonment with a non-parole period of four years. The indicative sentences for the individual offences totalled more than 11 years, reflecting the court's approach to the four distinct courses of criminal conduct.

On appeal, the appellant challenged several aspects of the sentence imposed by Judge Williams SC in the District Court, contending that the judge had made errors in the assessment of objective seriousness and in the application of aggravating factors.

  • Whether the sentencing judge erred in finding that the impact of the offending on CCA was "substantial," given that CCA was a large company generating considerable profits throughout the offending period
  • Whether the sentencing judge erred in treating breach of trust as an aggravating factor for the proceeds-of-crime offence (sequence 5), where the dealing with funds formed part of the same course of conduct that already involved a breach of trust
  • Whether the sentencing judge needed to determine which co-offender instigated the fraud, given that both were willing participants
  • Whether the aggregate sentence of six years was manifestly excessive having regard to the indicative sentences for each individual offence

Decision

On the question of the impact on CCA, the Court of Criminal Appeal rejected the argument that the victim's size or profitability reduced the seriousness of the offending. The court confirmed the established principle that identifying the absence of an aggravating factor does not itself operate as a mitigating factor. A $3.2 million fraud carried out over 11 years through elaborate deception remained objectively serious regardless of the employer's financial capacity to absorb the loss.

On the breach-of-trust point regarding sequence 5 (knowingly dealing with proceeds of crime), the court found no error. The proceeds-of-crime offending arose from a distinct course of conduct, involving the deliberate creation of a shell company to receive corrupt payments directly from Orix. That scheme was itself attended by a breach of trust, and the sentencing judge was entitled to treat that as an aggravating feature of that particular offence.

The court also found it unnecessary to determine which co-offender instigated the fraud. Both the appellant and his co-offender were willing participants throughout, and the appellant's culpability was properly assessed on that basis without resolving the question of who first proposed the arrangement.

On manifest excess, the court found nothing in the indicative sentences that disclosed any error in the sentencing judge's approach. The total of the indicative sentences exceeded 11 years, and an aggregate sentence of six years, after accounting for the discounts given for the early pleas and assistance offered to authorities, was within the available range and could not be characterised as unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that the absence of an aggravating factor does not constitute a mitigating factor: the size or profitability of a corporate victim does not diminish the objective seriousness of a large-scale fraud perpetrated against it.
  • Where proceeds-of-crime offending forms a discrete course of conduct, a sentencing court may identify breach of trust as an aggravating feature of that offence even where breach of trust also characterises the underlying fraud.
  • In sentencing co-offenders who were both willing participants in a fraud, it is not necessary to resolve which party instigated the criminal arrangement.
  • An aggregate sentence markedly below the sum of indicative sentences is not automatically manifestly excessive; the relationship between the two figures must be assessed in light of the principles of totality and the specific circumstances of each offending course.
  • Upholding the six-year aggregate sentence, the Court of Criminal Appeal applied the principle from Hughes v R [2018] NSWCCA 2 that an appeal on manifest excess requires the sentence to be shown as unreasonable or plainly unjust, a threshold not met here.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BD, 192E, 193B, 249B
- Criminal Assets Recovery Act 1990 (NSW), s 28A

Cases:
- Bravo v R [2015] NSWCCA 30
- Cahyadi v R [2007] NSWCCA 1; (2007) 168 A Crim R 41
- GW v R [2018] NSWCCA 79
- Hughes v R [2018] NSWCCA 2
- Mills v R [2017] NSWCCA 87
- PD v R [2012] NSWCCA 242
- R v Brown [2012] NSWCCA 199
- R v Crowe [2016] NSWCCA 39
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- Thorn v R [2009] NSWCCA 294