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Court of Criminal Appeal 26 August 2019

Richards v R

[2019] NSWCCA 199

Fraud & dishonesty
CRIMINAL LAW APPEAL LEAVE TO APPEAL AGAINST SENTENCE EXTENSION OF TIME GRANTED NO MERIT APPEAL REFUSED

Citation: Richards v R [2019] NSWCCA 199
Court: NSW Court of Criminal Appeal
Date: 26 August 2019
Judges: Basten JA, Button J, Lonergan J

Background

The applicant was a part-time bookkeeper employed by the owner of a gymnastics business in Gosford. From 2012 onwards, she had access to the business's bank accounts and used that access to make repeated unauthorised transfers into her own account and the account of a friend. She did so by disguising transfers as legitimate payments or by inflating genuine payments and diverting the excess. The total amount taken over the period exceeded $557,000, with the overpayment to herself amounting to approximately $457,704 and a further $31,040 channelled through a third party.

The applicant had a prior conviction for a similar offence, for which she had received a two-year good behaviour bond in 2011. She resumed dishonest conduct against a new employer shortly after that bond was imposed. In November 2017, Acting Judge Charteris SC in the Sydney District Court sentenced her to an aggregate term of five years and three months, with a non-parole period of three years and six months, reflecting a finding of special circumstances and a 25% discount for her early guilty plea.

The applicant, unrepresented, sought leave to appeal against her sentence out of time. The Court of Criminal Appeal refused leave at the hearing on 3 July 2019 and delivered written reasons on 26 August 2019.

  • Whether an extension of time to bring the application for leave to appeal should be granted
  • Whether the sentencing judge erred in relation to the dates and figures in the agreed facts
  • Whether a discount for assistance to authorities had been wrongly omitted
  • Whether aggravating and mitigating factors had been correctly applied
  • Whether insufficient weight was given to the applicant's mental health conditions (dysthymia and gambling disorder)
  • Whether the sentencing judge erred in finding nil prospects of rehabilitation and a lack of genuine remorse
  • Whether the finding of special circumstances was erroneous
  • Whether there was delay in sentencing
  • Whether a lesser sentence was warranted in law or the sentence was manifestly excessive

Decision

The Court unanimously refused leave to appeal, finding the application had no merit across all 13 grounds. Lonergan J, with whom Basten JA and Button J agreed, delivered the reasons. Because leave was refused at the hearing, the reasons were shorter than they would otherwise have been.

On the objective facts, the Court found the sentencing judge had correctly assessed the offending as serious. The conduct was deliberate, sustained over several years, involved a significant breach of trust, and caused substantial financial harm to the victim. No steps had been taken to make any repayment. The Court noted that, far from being excessive, the overall sentence was lenient in the circumstances.

On the subjective grounds, the Court found no error in how the sentencing judge had approached the applicant's mental health diagnoses, rehabilitation prospects, or remorse. The psychiatric diagnoses of gambling disorder and persistent depressive disorder were based on the applicant's own self-reporting, which the sentencing judge found was not independently confirmed. The sentencing judge had observed the applicant give evidence and was entitled to conclude that she was not genuinely remorseful.

The Court also rejected the assertion of sentencing delay (the issue had not been raised at the sentencing hearing), and found no error in the special circumstances finding, which had in fact benefited the applicant by reducing the non-parole period to two thirds of the total term.

Orders Made

  • Extension of time to bring the application for leave to appeal granted
  • Leave to appeal refused

Key Takeaways

  • A finding that a psychiatric diagnosis was based solely on unconfirmed self-reporting can properly reduce the weight given to that diagnosis as a mitigating factor at sentencing.
  • Remorse findings, made by a sentencing judge who has observed an offender give evidence, are difficult to disturb on appeal; the Court of Criminal Appeal confirmed such findings were entirely open on the facts here.
  • Under s 192E(1)(b) of the Crimes Act 1900 (NSW), a maximum of 10 years imprisonment applies to dishonestly obtaining a financial advantage by deception, and repeated, concealed conduct over several years involving a serious breach of trust will be treated as objectively serious offending.
  • A finding of special circumstances is favourable to the offender as it reduces the non-parole period below the standard statutory proportion; the applicant's first period of full-time custody was an accepted basis for such a finding.
  • In dismissing all 13 grounds, the Court confirmed that a sentence for sustained, deliberate employer fraud involving no reparation and a prior similar conviction would not readily be characterised as manifestly excessive.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E (dishonestly obtaining a financial advantage by deception)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 9 (good behaviour bonds)

Cases: No cases were cited in the judgment.