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Court of Criminal Appeal 23 November 2018

Woods v R

[2018] NSWCCA 261

Fraud & dishonesty
SENTENCING SUBJECTIVE CONSIDERATIONS ON SENTENCE MENTAL ILLNESS

Citation: Woods v R [2018] NSWCCA 261
Court: Court of Criminal Appeal, NSW
Date: 23 November 2018
Judge(s): Bathurst CJ (with Leeming JA and Adamson J agreeing)

Background

The appellant was employed in the accounts function of a transport and warehousing business, where she held responsibility for subcontractor payments. Over approximately five years, she effected 155 fraudulent transactions totalling $809,510.07 by altering invoices and redirecting payments into her personal bank account. The fraud was detected through an internal investigation, and she subsequently made full admissions to police.

At sentencing, the appellant relied on reports from a psychologist and a psychiatrist, both indicating she suffered from mental health conditions at the time of the offending. She also offered evidence that her motive for most of the fraud was an "addiction" or "passion" for horses, funding their training, veterinary care, and related expenses.

The sentencing judge imposed a five-year term of imprisonment with a three-year non-parole period, after allowing a 25% discount for an early guilty plea. The appellant sought leave to appeal on the sole ground that the sentencing judge failed to give proper effect to her mental health conditions.

  • Whether the sentencing judge erred by failing to give adequate weight to evidence of the appellant's mental health conditions when those conditions were found not to be causally connected to the offending
  • Whether an "addiction" or "passion" that motivates fraudulent conduct can constitute a mitigating factor at sentence

Decision

Bathurst CJ, with Leeming JA and Adamson J agreeing, found no error in the sentencing judge's approach. The sentencing judge had expressly considered both the psychologist's and psychiatrist's reports and was entitled to conclude that the mental health conditions were not causally connected to the offending. The absence of that causal connection meant the conditions carried limited mitigating weight, though the sentencing judge did treat them as relevant to the appellant's general functioning as part of his overall synthesis.

On the question of addiction as mitigation, Bathurst CJ confirmed the established principle that an addiction, whether to drugs, gambling, or anything else, will rarely excuse offending or operate as a mitigating factor, particularly where the conduct was not impulsive but involved careful, repeated planning. The same reasoning applied to the appellant's horse-related "passion" that drove the majority of the fraudulent transactions.

The Court also rejected the argument that the appellant's depression would make imprisonment more onerous than usual. The psychiatrist's observation that depression is common among prisoners, and that incarceration would likely worsen the appellant's depression in the short term, was insufficient to establish that proposition to the required standard.

Leave to appeal was granted, but the appeal was dismissed.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • A sentencing court is entitled to find that mental health conditions carry limited mitigating weight where those conditions are not causally connected to the offending, provided the court has genuinely considered the relevant evidence.
  • The Court of Criminal Appeal confirmed that addiction, whether to substances, gambling, or other pursuits, rarely provides a basis for mitigating a sentence, and even more rarely where the offending involved careful planning and repeated deliberate conduct rather than impulsive acts.
  • Treating a mental health condition as relevant to an offender's "general functioning" in the sentencing synthesis, without affording it specific mitigating weight, does not necessarily constitute error where causal connection to the offending has not been established.
  • Establishing that imprisonment will be more onerous due to a mental health condition requires more than a general observation that incarceration commonly worsens depression; the proposition must be established on the evidence to a sufficient degree.
  • In dismissing the appeal, the Court applied the reasoning in Director of Public Prosecutions (Cth) v De La Rosa and Johnston v The Queen, reinforcing that the mitigating role of addiction-like motivations in systematic white-collar fraud cases is narrow.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b) (dishonestly obtaining a financial advantage by deception; maximum penalty 10 years imprisonment)

Cases
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Johnston v The Queen [2017] NSWCCA 53