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Court of Criminal Appeal 9 November 2018

Noble v R

[2018] NSWCCA 253

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL S 11.1 S 134.2(1) CRIMINAL CODE 1995 (CTH) PLEAS OF GUILTY S 16A(2)(G) CRIMES ACT 1914 (CTH)

Citation: Noble v R [2018] NSWCCA 253
Court: Court of Criminal Appeal, New South Wales
Date: 9 November 2018
Judges: Bathurst CJ; Fullerton J; Campbell J

Background

The applicant pleaded guilty in the Local Court to 140 charges of dishonestly obtaining, or attempting to obtain, a financial advantage from the Commonwealth by deception, contrary to the Criminal Code 1995 (Cth). The offending involved lodging 140 false business activity statements with the Australian Taxation Office on behalf of eight related entities over approximately five years, falsely claiming GST refunds totalling around $9 million in purported business expenditure.

Of the amounts claimed, approximately $394,500 was paid directly into accounts controlled by the applicant and has not been recovered. The remaining amounts were either credited to her ATO account, cancelled, or recalled. The offending continued even after an ATO auditor warned the applicant about making false and misleading statements, and after she became aware she was under investigation.

Upon the matter being remitted to the District Court, the 140 charges were consolidated into two counts on indictment. Judge English sentenced the applicant to an effective term of five years imprisonment with a non-parole period of two years and six months. The applicant sought leave to appeal, contending the sentencing judge failed to account for her guilty pleas and that the sentence was manifestly excessive.

  • Whether the sentencing judge erred by failing to take into account, or expressly refer to, the utilitarian value of the applicant's guilty pleas when imposing sentence under s 16A(2)(g) of the Crimes Act 1914 (Cth)
  • Whether, if such error was established, a lesser effective sentence than that imposed was warranted
  • The correct approach to applying a guilty plea discount for Commonwealth offences following Xiao v R [2018] NSWCCA 4

Decision

The Court granted leave to appeal, but the bench divided on the ultimate outcome. Fullerton J (with Bathurst CJ agreeing) concluded that, although a sentencing error in the treatment of the guilty pleas was established, no lesser sentence than that imposed was warranted in the circumstances. Campbell J reached the opposite conclusion, finding that a 25 per cent discount for the early guilty pleas should have been applied and that resentencing was required.

On the error question, the Court accepted that the sentencing judge's failure to make any express reference to the guilty pleas as a material consideration in fixing sentence constituted an error in the exercise of the sentencing discretion. This was so even though s 16A(2)(g) of the Crimes Act does not mandate specification of a precise percentage discount. The Crown conceded this error in light of the approach confirmed in Xiao v R and Jinde Huang aka Wei Liu v R, both decided after the original sentence was imposed.

Fullerton J and Bathurst CJ, applying the principle that an appellate court will not intervene unless a different sentence is warranted, found that the objective seriousness of the offending, its planned and persistent nature, the absence of any recovery of the funds obtained, and the need for general deterrence together justified the sentence imposed despite the error.

Campbell J, by contrast, held that resentencing was necessary to give effect to the guilty plea discount. His Honour applied a 25 per cent discount to each count, producing individual sentences of three years and six months, accumulated to yield a total effective sentence of four years. He fixed a single non-parole period of two years and three months, declining to carry the discount mechanically through to the non-parole period given the principle in Power v The Queen that the non-parole period must represent the minimum term justice requires the offender to serve in full custody.

Orders Made

The orders proposed by Campbell J (reflecting the majority outcome as Bathurst CJ and Fullerton J agreed to dismiss the appeal, but Campbell J's proposed orders were included in the judgment) are as follows. Note: the Court's majority dismissed the appeal, and the orders below are those proposed by Campbell J in dissent.

  • Leave to appeal granted
  • Appeal allowed
  • Sentences passed in the District Court on 12 May 2017 quashed
  • Count 1: imprisonment of 3 years and 6 months commencing 12 May 2017, expiring 11 November 2020
  • Count 2: imprisonment of 3 years and 6 months commencing 12 November 2017, expiring 11 May 2021
  • Single non-parole period of 2 years and 3 months commencing 12 May 2017, expiring 11 August 2019 (fixed under s 19AB Crimes Act 1914 (Cth))
  • Reparation order under s 21B Crimes Act 1914 (Cth) in the sum of $394,550 confirmed

Note: The majority (Bathurst CJ and Fullerton J) proposed that leave be granted but the appeal be dismissed, leaving the original sentence in place. The orders above reflect Campbell J's dissenting position. Readers should note the split outcome.

Key Takeaways

  • A sentencing judge's failure to make any express reference to a guilty plea as a material consideration when imposing a Commonwealth sentence constitutes an error in the exercise of the sentencing discretion, even where s 16A(2)(g) of the Crimes Act 1914 (Cth) does not require specification of a precise discount percentage.

  • Under s 16A(2)(g), as confirmed in Xiao v R [2018] NSWCCA 4, a sentencing judge for Commonwealth offences is not obliged to specify a precise guilty plea discount, but complete silence on the pleas as a material factor goes beyond that permissible latitude.

  • Establishing a sentencing error does not automatically produce a different sentence on appeal. Where objective seriousness, persistent offending, the need for general deterrence, and the absence of recovery of funds are sufficiently weighty, the appellate court may conclude no lesser sentence is warranted despite the error.

  • The non-parole period for a Commonwealth offence is governed by the principle in Power v The Queen (1974) 131 CLR 623 that it must represent the minimum term justice requires the offender to serve in full-time custody, and this principle operates independently from any guilty plea discount applied to the head sentence.

  • The decision illustrates the unsettled practical application of the Xiao approach where it is introduced retrospectively: sentencing error may be conceded, yet the appellate court retains a discretion to assess whether the effective sentence, viewed globally, remains appropriate.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), ss 16A, 17A, 19AB, 21B
- Criminal Appeal Act 1912 (NSW), s 6
- Criminal Code 1995 (Cth), ss 11.1, 134.2

Cases
- Xiao v R [2018] NSWCCA 4; (2018) 329 FLR 1
- Jinde Huang aka Wei Liu v R [2018] NSWCCA 70
- Naizmand v R [2018] NSWCCA 25
- Edwards v R [2017] NSWCCA 160
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- O'Grady v The Queen (2014) 252 CLR 621; [2014] HCA 37
- The Queen v Pham (2015) 256 CLR 550; [2015] HCA 39
- Lehn v R (2016) 93 NSWLR 205; [2016] NSWCCA 255
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Bui v Director of Public Prosecutions for the Commonwealth of Australia (2012) 244 CLR 638; [2012] HCA 1
- Cameron v The Queen (2002) 209 CLR 339
- Wong v The Queen (2001) 207 CLR 584
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Thomson; R v Houlton (2000) 49 NSWLR 383; [2000] NSWCCA 309
- Power v The Queen; Selenski v The Queen; Lyons v The Queen (1974) 131