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Court of Criminal Appeal 28 June 2019

Hraiki v R

[2019] NSWCCA 140

Fraud & dishonesty
CRIMINAL LAW CRIMES OF DISHONESTY DISCOUNT FOR ASSISTANCE ASSISTANCE PROVIDED VERY LATE DISCRETIONARY AND EVALUATIVE JUDGMENT NO ERROR ESTABLISHED

Citation: Hraiki v R [2019] NSWCCA 140
Court: Court of Criminal Appeal, NSW
Date: 28 June 2019
Judges: Bathurst CJ, Hamill J, N Adams J

Background

The applicant had pleaded guilty in the District Court to a series of serious dishonesty offences arising from a fraudulent loan scheme involving St George and Westpac banks. The offences included recklessly dealing with proceeds of crime and dishonestly obtaining financial advantage by deception, using false documentation and fictitious identities to obtain investment loans totalling well over a million dollars.

Judge Norrish QC sentenced the applicant to a total effective sentence of 2 years and 9 months, with a non-parole period of 1 year and 5 months. The sentences were structured as individual terms made partially concurrent and partially cumulative, rather than as an aggregate sentence.

The applicant sought leave to appeal on two grounds: that the discount for his assistance to authorities was inadequate, and that the overall sentence was manifestly excessive. At the hearing, counsel abandoned the manifest excess ground, leaving only the question of the assistance discount.

  • Whether the sentencing judge applied an appropriate discount for the applicant's past and future assistance to authorities under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)
  • Whether a 5% discount for future assistance, forming part of an overall 25% reduction (which also included the guilty plea and past assistance), was within the proper exercise of sentencing discretion

Decision

The sentencing judge had initially allowed a 2.5% discount for future assistance, but increased it to 5% after being informed there was a greater likelihood that the applicant would be called to give evidence in future criminal proceedings. Combined with the guilty plea discount and the discount for past assistance, this produced a total reduction of 25%.

Hamill J noted two features of the assistance that bore on the discount's modest size. First, police documents indicated that most, if not all, of the information provided by the applicant was already known to police and prosecuting authorities before the assistance was offered. Second, the assistance was provided at a very late stage in the proceedings.

The Court of Criminal Appeal found no error in the sentencing judge's approach. His Honour had clearly addressed the matters required by s 23(2) of the Crimes (Sentencing Procedure) Act, and the determination was characterised as both evaluative and discretionary. The Court acknowledged that another judge might have awarded a slightly higher discount, but emphasised that this alone does not render the sentencing judge's assessment legally flawed.

All three judges agreed that the ground of appeal should be rejected and that leave to appeal should be refused.

Orders Made

  • Leave to appeal against sentence refused.

Key Takeaways

  • A sentencing court's determination of the appropriate discount for assistance to authorities is an evaluative and discretionary judgment; appellate intervention requires demonstrated legal error, not merely a different view of the appropriate figure.
  • No error was established where the sentencing judge had explicitly addressed all matters required by s 23(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW) in fixing the discount.
  • The lateness of the assistance, and the fact that police were already aware of the information provided, are legitimate considerations that may limit the size of the discount awarded.
  • The Court of Criminal Appeal confirmed that the possibility of a co-offender being called to give evidence in future proceedings is a factor capable of justifying an increase in the future-assistance component of the discount.
  • In dismissing the appeal, the Court reinforced that a range of outcomes may be within the proper exercise of sentencing discretion; the existence of an arguably preferable outcome does not, of itself, establish appealable error.

Legislation and Cases Referenced

Legislation:
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 23, 53A
- Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(3)

Cases cited: No cases were cited in the judgment as provided.