Citation: Schneider v R [2019] NSWCCA 292
Court: NSW Court of Criminal Appeal
Date: 16 December 2019
Judges: Hoeben CJ at CL, R A Hulme J, Button J
Background
The applicant was an accounts clerk employed at a freight distribution company in Newcastle for many years. Over a seven-year period from February 2010 to January 2017, she made more than 500 fraudulent transfers of company funds totalling well over $1.4 million, spending the money on herself and her family. The offending was motivated not by gambling or addiction, but by a desire to project financial wellbeing after separating from her husband following her cancer treatment in 2006.
In September 2018, the District Court at Newcastle imposed an aggregate head sentence of 5 years 6 months with a non-parole period of 3 years, covering two counts of obtaining a financial advantage by deception. The applicant had pleaded guilty and received a 25% discount on each indicative sentence. She was found to be genuinely remorseful and had no prior criminal history.
Appearing for herself before the Court of Criminal Appeal, the applicant sought an extension of time to apply for leave to appeal against the sentence. The extension was necessary because the application was not filed within the standard timeframe.
Legal Issues
- Whether the Court of Criminal Appeal should grant an extension of time to file a notice of application for leave to appeal against sentence
- Whether new evidence concerning the applicant's newborn grandchild's medical conditions and her teenage son's recently diagnosed psychological conditions could be admitted on appeal under the principles in Khoury v R
- Whether the sentencing judge's limited time to read a psychological report constituted an error affecting the sentence
- Whether the aggregate sentence was manifestly excessive having regard to all objective and subjective circumstances
Decision
Button J (with whom Hoeben CJ at CL and Hulme J agreed) refused the extension of time, finding that the grounds of appeal were doomed to failure. The Court applied the principle that an extension of time should not be granted where granting it would serve no purpose.
On the new evidence grounds (Grounds 1 and 2), the Court held that neither the medical conditions of the applicant's granddaughter (who was born after sentencing) nor the psychological diagnoses of her teenage son met the threshold for post-sentence intervention established in Khoury v R. The granddaughter's conditions arose entirely after sentencing. As for the son, the applicant had expressly told the sentencing judge at the hearing that he had no health issues. While the Court acknowledged that evidence of a condition pre-existing the sentence is not automatically disqualified simply because it was not raised below, the proposed evidence here related to psychological difficulties in a third party rather than the applicant herself, and could only increase by degree an existing distress already considered by the sentencing court.
On Ground 3, the Court rejected the proposition that the sentencing judge's limited time to read the psychological report meant the subjective case was not understood or applied. Button J noted that practitioners and judges routinely must absorb and apply complex material under time pressure, and the remarks on sentence showed no indication the report's import had been overlooked. The complaint that the applicant was receiving insufficient psychological support in custody was not a valid ground of appeal.
On manifest excess (Ground 5), Button J described the aggregate sentence as "quite lenient" by any measure. The Court weighed the very large quantum of the fraud, the minimal recovery by the victim (approximately 5%), hundreds of separate criminal acts over many years, a significant breach of trust, and the absence of any compulsion arising from addiction or otherwise. Even assuming, for the sake of argument, that all of the new evidence were admitted and some other error established, Button J stated he would not impose any sentence less than the one already imposed.
Orders Made
- Extension of time to give notice of application for leave to appeal against sentence refused.
Key Takeaways
- Refusing the extension of time, the Court of Criminal Appeal confirmed that an extension will not be granted where the underlying grounds of appeal have no prospects of success, regardless of any chronological or logistical difficulty in filing.
- A matter that develops entirely after the imposition of sentence cannot found a ground for appellate intervention in sentence proceedings; the Court will not revisit a sentence on the basis of circumstances that did not exist at all at the time of sentencing.
- Under the principles in Khoury v R, the discretion to admit fresh evidence on a sentence appeal is not exercised merely because evidence now shows a condition pre-existed the sentence, particularly where the evidence relates to psychological difficulties in a third party rather than the offender, and the evidence would only increase by degree an existing consideration already before the sentencing court.
- No causal link between the applicant's psychological profile and the offending was found, and the sentencing court's acceptance of the psychological report was not undermined simply because the judge had limited time to read it on the day of hearing.
- An aggregate sentence of 5 years 6 months with a 3-year non-parole period for fraud exceeding $1.4 million, involving hundreds of dishonest transactions over seven years in a position of trust, was held not to be manifestly excessive and was in fact described by the Court as quite lenient.
Legislation and Cases Referenced
Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
Cases:
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118