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Court of Criminal Appeal 6 March 2020

Raine v R

[2020] NSWCCA 32

Fraud & dishonesty
CRIMINAL LAW LEAVE TO APPEAL AGAINST SENTENCE PARITY DEFRAUDING OF EMPLOYER ROLE OF CO APPEALS TO THE COURT OF CRIMINAL APPEAL

Citation: Raine v R [2020] NSWCCA 32
Court: NSW Court of Criminal Appeal
Date: 6 March 2020
Judge(s): Brereton JA, Johnson J, Lonergan J

Background

The applicant had pleaded guilty to dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW). Over roughly three and a half years, he systematically defrauded his employer, a major wagering company, by exploiting his technical knowledge and trusted access to betting systems. By the time of his arrest, he had obtained approximately $682,923.

The applicant was sentenced in the District Court to three years and six months' imprisonment, with a non-parole period of two years and four months. His wife, who participated in the scheme, was sentenced concurrently and received a lesser sentence of two years' imprisonment with a non-parole period of one year and three months.

The applicant sought leave to appeal against his sentence in the Court of Criminal Appeal, raising four grounds. The Court refused leave at the conclusion of the oral hearing on 14 August 2019 and reserved its reasons, which were published in this judgment.

  • Whether the sentencing judge incorrectly assessed the applicant's role in the offending
  • Whether the sentencing judge failed to apply the parity principle when comparing the applicant's sentence to that of his wife (the co-offender)
  • Whether the sentencing judge erred in assessing objective criminality without properly considering relevant indicia
  • Whether the sentencing judge erred by mischaracterising the level of responsibility attached to the applicant's employment position

Decision

The Court unanimously refused leave to appeal on all four grounds, finding that none had any prospect of success.

On grounds 3 and 4 (objective criminality and the characterisation of the applicant's role), the Court held that the sentencing judge was correct to describe the fraud as a clever and sophisticated scheme that went undetected for years. The applicant held a skilled technical position that gave him unsupervised access to betting systems and unclaimed cash winnings. The submission that he was merely a "backroom employee" was rejected: his access, expertise, and the trust placed in him were central to the commission of the offence and were properly treated as aggravating features.

Grounds 1 and 2, relating to the parity principle, were not only without merit but also presented a further procedural difficulty. At the sentencing hearing, the applicant's legal team had actively sought to mitigate his wife's culpability relative to his own. The Court found it would be offensive to notions of justice to permit the applicant to argue on appeal that his wife's lesser sentence rendered his own excessive, when he had himself advanced the contrary position below. Both parties had been represented by experienced senior and junior counsel.

Brereton JA added observations clarifying when it is appropriate to refuse leave outright rather than grant leave and dismiss the appeal. His Honour confirmed that leave should be refused where an appeal is unmeritorious, has no prospect of success, or where grounds attempt to depart from the basis on which the proceedings were run below. The practice of permitting full argument on the leave application means leave is granted relatively liberally, but the threshold must still be met.

Orders Made

  • Leave to appeal is refused.

Key Takeaways

  • Refusing leave to appeal, rather than granting leave and dismissing the appeal, is the appropriate course where grounds are unmeritorious, have no prospect of success, or are vexatious.
  • An applicant cannot use a sentence appeal to advance a case inconsistent with the position deliberately adopted before the sentencing court, particularly where both parties were represented by experienced counsel.
  • The parity principle (which requires that co-offenders not receive sentences that are unjustifiably disparate) does not assist an applicant whose role was plainly greater in duration, quantum, and in the design and instigation of the offending scheme.
  • A finding that an employee held a "position of trust and responsibility" for sentencing purposes does not require a senior managerial role; skilled technical access to sensitive systems and cash holdings can suffice.
  • Under the Criminal Appeal Act 1912 (NSW), leave to appeal against sentence is granted where the applicant makes out a sufficiently arguable case that the sentence is inappropriate, but the Court retains the discretion to refuse leave where no arguable case exists.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW)
- Drug Misuse and Trafficking Act 1985 (NSW), s 10(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases
- Coulter v The Queen (1988) 164 CLR 350
- Bailey v Director of Public Prosecutions (NSW) (1988) 78 ALR 116; [1988] HCA 19
- Angre v Chief of Navy (No 3) [2017] ADFDAT 2
- Johnston v R [2017] NSWCCA 53
- R v Goundar (2001) 127 A Crim R 331; [2001] NSWCCA 198
- Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44