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Court of Criminal Appeal 13 April 2018

Clinton v R

[2018] NSWCCA 66

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL EXTENSION OF TIME TO APPEAL SENTENCE FRAUD GROUNDS OF APPEAL ESTABLISHED NOT WARRANTED

Citation: Clinton v R [2018] NSWCCA 66
Court: NSW Court of Criminal Appeal
Date: 13 April 2018
Judges: Hoeben CJ at CL, Johnson J, Schmidt J (reasons by Schmidt J)

Background

The appellant was a 74-year-old man who had pleaded guilty to nine fraud-related offences committed between 2008 and 2014 as part of a joint criminal enterprise. Acting as a business adviser, he collected personal and financial details from clients seeking finance, passed that information to his co-offender, and the pair used it to submit fraudulent loan and credit card applications in victims' names. The collective proceeds exceeded $1 million, with over $299,000 passing through the appellant's hands.

In March 2016, the District Court sentenced the appellant to an aggregate term of 5 years and 8 months imprisonment, with a non-parole period of 3 years and 9 months. The sentence reflected a 30% combined discount for late plea and assistance, and a finding of special circumstances. The sentencing judge also took into account 19 additional admitted offences under s 33 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

The appellant sought an extension of time and leave to appeal the sentence, having filed the application in December 2017 despite being sentenced in March 2016 and approaching parole eligibility in May 2018. The Court of Criminal Appeal granted the extension and leave, but ultimately dismissed the appeal.

  • Whether the sentencing judge erred by treating each offence as aggravated under s 21A(2)(m) of the Crimes (Sentencing Procedure) Act 1999 (NSW) on the basis that each constituted a series of criminal acts
  • Whether the sentencing judge erred by treating each offence as aggravated under s 21A(2)(o) of the same Act on the basis that each offence was committed for financial gain, given that financial gain was an essential element of the offences charged
  • Whether, even if those grounds of appeal were established, a lesser sentence was warranted in law under s 6(3) of the Criminal Appeal Act 1912 (NSW)

Decision

The Court accepted both grounds of appeal. On the second ground, the Crown conceded the point: because obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW) has financial gain as an essential element of the offence, applying it again as a sentencing aggravator under s 21A(2)(o) amounted to impermissible double counting. The sentencing judge should not have treated financial gain as an additional aggravating circumstance for those charges.

On the first ground, the Court found that characterising each individual offence as a "series of criminal acts" under s 21A(2)(m) was also in error. A single transaction that forms part of a broader pattern of offending does not, by that fact alone, constitute a series of acts for the purposes of that provision.

Despite both grounds being made out, the Court concluded that a lesser sentence was not warranted in law. The sentence as imposed was already lenient when account was taken of the 19 additional offences, the appellant's significant prior record of dishonesty, and the seriousness of the offending. The Court found that any further reduction would produce a manifestly inadequate sentence. Reinforcing that conclusion was evidence that the appellant had continued to act dishonestly while in custody, obtaining over 5,000 free phone calls to which he was not entitled.

Orders Made

  • Application for extension of time to appeal granted
  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • Applying an aggravating factor under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) that corresponds to an essential element of the offence charged constitutes impermissible double counting, and the Crown here conceded the point without contest.
  • A single transaction forming part of a broader course of criminal conduct does not automatically satisfy the "series of criminal acts" aggravator in s 21A(2)(m).
  • Establishing grounds of appeal against a sentence does not automatically produce a lesser sentence: under s 6(3) of the Criminal Appeal Act 1912 (NSW), the Court of Criminal Appeal will only intervene if a lesser sentence is actually warranted in law.
  • In dismissing the appeal, the Court reinforced that the totality principle cannot operate as a form of discount for prolific offending; concurrency of sentences is not appropriate simply because conduct is similar or part of the same course of criminal behaviour.
  • Post-sentence conduct, including dishonest behaviour while in custody, remained a relevant consideration in the Court's assessment of whether a reduced sentence was warranted.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178BA(1) (repealed), 192E(1)(b), 254
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(2)(m), 21A(2)(o), 33, 44
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Dimian v R [2016] NSWCCA 223
- Hamze v R [2006] NSWCCA 36
- Jah v R [2006] NSWCCA 250
- Johnston v R [2017] NSWCCA 53
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Mansour v R (2011) 209 A Crim R 275; [2011] NSWCCA 28
- Potts v R [2017] NSWCCA 10
- Power v The Queen (1974) 131 CLR 623; [1974] HCA 26
- R v Finnie [1999] NSWCCA 329; [2002] NSWCCA 533; (No 2) [2004] NSWCCA 150; Finnie v R [2007] NSWCCA 38
- R v Jarrold [2010] NSWCCA 69
- R v MAK (2006) 167 A Crim R 159; [2006] NSWCCA 381
- Regina v Tadrosse (2005) 65 NSWLR 740; [2005] NSWCCA 145
- Regina v Yildiz (2006) 160 A Crim R 218; [2006] NSWCCA 97