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Court of Criminal Appeal 1 July 2020

PC v R

[2020] NSWCCA 147

Fraud & dishonesty
CRIMINAL LAW APPEAL AGAINST SENTENCE $3.6 MILLION UNACCOUNTED FOR SENTENCE NOT MANIFESTLY EXCESSIVE APPEAL AGAINST SENTENCE DISMISSED.

Citation: PC v R [2020] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 1 July 2020
Judge(s): Bathurst CJ; Hoeben CJ at CL; Harrison J

Background

The applicant pleaded guilty in the District Court to 11 offences of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW), with a further 10 offences of the same kind taken into account on three Forms 1. The offending involved defrauding 21 victims of approximately $4.6 million, of which around $3.6 million was never recovered.

The applicant befriended his victims and falsely presented himself as an experienced financial trader and investor, promising high returns on sophisticated investment opportunities. He had prior convictions for fraud offences, having served an earlier sentence of 8 years with a non-parole period of 5 years and 6 months. The current offending commenced during the last months of his parole period and continued while he was on bail after arrest for the earlier offences in the present series.

The District Court sentenced the applicant to an aggregate term of 12 years imprisonment with a non-parole period of 8 years, commencing 28 November 2014. The sentence incorporated a 25 per cent reduction for early guilty pleas and a further 10 per cent reduction for assistance provided to authorities. A suppression order preventing identification of the applicant was made on safety grounds.

  • Whether the sentencing judge erred by failing to assess the objective seriousness of the offences
  • Whether the 10 per cent discount allowed for assistance to authorities was insufficient
  • Whether the aggregate sentence of 12 years was manifestly excessive
  • Whether there were errors in the formulation of individual indicative sentences

Decision

The Court of Criminal Appeal rejected all three grounds of appeal and dismissed the application, though it identified a separate technical error in the formulation of the indicative sentences.

On Ground 1, the Court found that the sentencing judge had properly assessed the objective seriousness of the offences. The offending was found to be serious, involving sustained and sophisticated deception of multiple victims over an extended period, aggravated by the fact that some offences were committed while the applicant was on parole and others while on bail.

On Ground 2, the Court found no error in the 10 per cent discount allowed for assistance to authorities. The sentencing judge had appropriately weighed the nature and extent of the assistance provided, and the applicant had not established that the discount was inadequate.

On Ground 3, the Court was not persuaded that the aggregate sentence was manifestly excessive given the scale of the fraud, the number of victims, the significant amount unrecovered, and the applicant's prior relevant criminal history. The Court acknowledged an error in the formulation of some indicative sentences, noting that sentencing judges are required to articulate the basis for any differences between indicative sentences. However, this error did not warrant any change to the aggregate sentence, which remained appropriate.

Orders Made

  • Leave to appeal granted
  • The appeal is dismissed

Key Takeaways

  • The Court of Criminal Appeal confirmed that an aggregate sentence of 12 years for large-scale investment fraud involving 21 victims and approximately $3.6 million unrecovered was not manifestly excessive, particularly where offending occurred during both a parole period and a period on bail.
  • A 10 per cent discount for assistance to authorities, applied in addition to a 25 per cent discount for early guilty pleas, was found to be within the proper range and disclosed no appellate error.
  • Where a sentencing court imposes different indicative sentences across multiple fraud counts, it must articulate the basis for any differences between those sentences. A failure to do so constitutes an error in the formulation of indicative sentences.
  • Such a formulation error does not automatically require variation of the aggregate sentence. The Court of Criminal Appeal may find error in the indicative sentences while concluding the aggregate term is nonetheless correct.
  • Offending committed while on parole and while on bail are both recognised as significant aggravating factors in the assessment of objective seriousness under the Crimes (Sentencing Procedure) Act 1999 (NSW).

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A, 23
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Court Suppression and Non-Publication Orders Act 2010 (NSW), s 7
- Crimes Amendment (Fraud Identity and Forgery Offences) Act 2009 (NSW)

Cases
- AB v The Queen [1999] HCA 46; 198 CLR 111
- Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58; [2014] HCA 2
- Baumer v The Queen [1988] HCA 67; 166 CLR 51
- Bland v R [2014] NSWCCA 82
- Book v R [2018] NSWCCA 58
- Cahyardi v Regina [2007] NSWCCA 1; 168 A Crim R 41
- DV v R [2017] NSWCCA 276
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- House v The King (1936) 55 CLR 499; [1936] HCA 40
- Hraiki v R [2019] NSWCCA 140
- Hughes v R [2013] NSWCCA 129
- Hurst v R [2017] NSWCCA 114
- JM v R [2014] NSWCCA 297; 246 A Crim R 528
- Johnston v R [2017] NSWCCA 54
- Kentwell v The Queen [2014] HCA 37; 88 ALJR 947