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Court of Criminal Appeal 13 September 2019

Whyte v R

[2019] NSWCCA 218

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE WHETHER SENTENCE MANIFESTLY EXCESSIVE EXERCISE OF DISCRETION TO RESENTENCE

Citation: Whyte v R [2019] NSWCCA 218
Court: NSW Court of Criminal Appeal
Date: 13 September 2019
Judges: Simpson AJA; Wilson J; Ierace J

Background

The applicant was a bookkeeper and financial manager employed by a family-owned crane hire and equipment business from 2000 to 2014. Over a seven-year period from 2007 to 2014, she used her trusted position to issue false invoices and instructions to clients, defrauding the company of approximately $2.9 million across 27 separate offences.

Following a jury trial, the applicant was convicted on all 27 counts of dishonestly obtaining a financial advantage by deception under the Crimes Act 1900 (NSW). The sentencing judge imposed an aggregate term of 11 years' imprisonment with a non-parole period of 6 years and 6 months.

The applicant did not challenge her convictions. Her appeal targeted the sentence on two grounds: that the judge wrongly treated financial gain as an aggravating factor, and that the overall sentence was manifestly excessive.

  • Whether the sentencing judge erred by treating the commission of offences for financial gain as an aggravating factor, where financial gain is already an element of the offences charged.
  • Whether an email sent by the sentencing judge to the Court's Registrar after sentencing, acknowledging that error, could be treated as a report under s 11 of the Criminal Appeal Act 1912 (NSW) and taken into account by the Court of Criminal Appeal.
  • Whether the aggregate sentence of 11 years was manifestly excessive.
  • Whether, given the identified error, the Court was required to exercise an independent sentencing discretion and resentence the applicant.

Decision

Ground 1: Financial gain as an aggravating factor

The Court of Criminal Appeal allowed this ground unanimously. Financial gain is an element of the offences under ss 178BA and 192E of the Crimes Act 1900, and no motivation for financial gain beyond what is ordinary for such offences was demonstrated. Applying R v Yildiz [2006] NSWCCA 97, treating financial gain as an aggravating factor in those circumstances was an error.

The sentencing judge's email to the Registrar

A more nuanced disagreement arose on the status of the sentencing judge's post-sentence email. Simpson AJA and Ierace J treated the email as a report under s 11 of the Criminal Appeal Act 1912, finding it had marginal value in confirming that the judge had treated financial gain as falling outside the ordinary norm for the offence. Wilson J disagreed, concluding the email did not satisfy the purposes for which s 11 was enacted and should be disregarded. Importantly, all three judges agreed that Ground 1 was established regardless of whether the email was considered. The difference in approach on the s 11 question did not affect the outcome.

Ground 2: Manifest excess

The Court dismissed this ground. Although the sentence was longer than some comparable cases, that alone was insufficient. Applying Markarian v The Queen and Hughes v R, the Court found the sentence was not unreasonable or plainly unjust in a way that warranted intervention.

Resentencing

Because an error on Ground 1 was established, the Court was required to exercise an independent sentencing discretion under the principle in Kentwell v The Queen. Taking into account the sustained and deliberate misconduct over seven years and the applicant's lack of contrition or insight, the Court reduced the aggregate term to 10 years. The non-parole period of 6 years and 6 months, reflecting the sentencing judge's finding of special circumstances, was retained.

Orders Made

  • Leave to appeal against sentence granted.
  • Appeal allowed.
  • Sentence imposed by the District Court on 16 August 2017 set aside.
  • In lieu thereof, the applicant sentenced to a non-parole period of 6 years and 6 months commencing 28 April 2017 (expiring 27 October 2023), with a balance of term of 3 years and 6 months (expiring 27 April 2027).

Key Takeaways

  • Where financial gain is an element of the charged offence, a sentencing court cannot treat the fact that offences were committed for financial gain as an aggravating factor unless the motivation for gain is shown to be beyond what is ordinary for that type of offending.
  • The Court of Criminal Appeal confirmed that establishing a sentencing error in principle triggers an obligation to resentence independently, even where the ground of manifest excess is separately dismissed.
  • A post-sentence communication from a sentencing judge to the Court Registrar may, in some circumstances, be treated as a report under s 11 of the Criminal Appeal Act 1912, though the three judges in this case divided on whether that was appropriate here, with Wilson J concluding it should be disregarded.
  • In dismissing the manifest excess ground, the Court reaffirmed that a sentence being longer than comparable cases does not by itself justify appellate intervention: the sentence must be unreasonable or plainly unjust.
  • Sustained, deliberate offending over many years and an absence of contrition or insight remained significant factors on resentencing, producing an aggregate term only modestly reduced from the original.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 178BA, 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 22A, 44, 50, 53A
- Crimes (Administration of Sentences) Act 1999 (NSW)
- Criminal Appeal Act 1912 (NSW), s 11

Cases
- R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- Hughes v R [2018] NSWCCA 2
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
- R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188
- R v Ahmet (1996) 86 A Crim R 316
- Zhang v R [2018] NSWCCA 82
- Cummins v R [2019] NSWCCA 163
- Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Vaughan v R [2011] NSWCCA 4
- Clinton v R [2018] NSWCCA 66
- Lee v R [2019] NSWCCA 15