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Court of Criminal Appeal 18 December 2020

Singh v R

[2020] NSWCCA 353

Also reported as (2020) 104 NSWLR 43
Fraud & dishonesty
CRIME A PPEALS WHETHER OFFENDER ACTED AS AN “ADULT”

Citation: Singh v R [2020] NSWCCA 353
Court: Court of Criminal Appeal, NSW
Date: 18 December 2020
Judge(s): Bell P; Johnson J; R A Hulme J

Background

The applicant was employed as an assistant accountant at the Australian subsidiary of a major international advertising agency. Between January 2013 and December 2016, he systematically defrauded his employer of approximately $3.28 million by manipulating business activity statements, diverting tax payments to his own bank accounts, and posting false journal entries to conceal the shortfall. He was aged 23 at the start of the offending and just short of 27 at its conclusion.

The applicant pleaded guilty in the Local Court to three counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW), with three further counts taken into account on a Form 1. The District Court imposed an aggregate sentence of six years' imprisonment with a non-parole period of four years, after a 25% discount for the guilty pleas.

The applicant sought leave to appeal against his sentence in the Court of Criminal Appeal, arguing that the sentencing judge had failed to properly account for his comparatively young age when assessing moral culpability, and that the non-parole period was manifestly excessive.

  • Whether the sentencing judge erred by failing to treat the applicant's age (23 to 26 at the time of offending) as a mitigating factor going to moral culpability, in the same way courts reduce sentences for young offenders
  • Whether the audacity or boldness of an offender's conduct can be conflated with the kind of immaturity that warrants a sentencing discount
  • Whether the non-parole period of four years was manifestly excessive having regard to comparable fraud sentences
  • Whether the sentencing judge's finding of special circumstances was properly reasoned when imposing an aggregate sentence

Decision

The Court dismissed the application unanimously. Bell P (with Johnson and R A Hulme JJ agreeing) held that while youth and immaturity must always be assessed on the particular facts of a case, the applicant's offending did not attract the considerations applicable to young offenders. The offences involved careful premeditation over nearly four years, a degree of technical sophistication, and a serious breach of the trust placed in him as an employee with access to his employer's banking and accounting systems.

Bell P drew a clear distinction between youthful audacity and the kind of immaturity that sentencing law recognises as warranting reduced culpability. The conduct of a 23-year-old who plans and executes a sustained, methodical fraud does not manifest the impulsiveness, susceptibility to peer pressure, or underdeveloped judgment that courts have associated with reduced moral responsibility in younger offenders. The court confirmed that the sentencing judge had, in any event, taken the applicant's age into account in exercising his sentencing discretion.

On manifest excess, the Court found that both the head sentence and the non-parole period fell well within the range of sentences imposed for comparable fraud offending. No error of principle was established, consistent with the test in House v The King (1936) 55 CLR 499. The application accordingly failed on all grounds.

R A Hulme J added observations on special circumstances. His Honour noted that the rationale for finding special circumstances in accumulated sentence cases, namely ensuring a proper proportion between the minimum term and the effective balance, does not apply when an aggregate sentence is imposed. There is only one sentence with one non-parole period, and nothing is actually accumulated. A finding of special circumstances premised solely on an offender's first period of custody, without further explanation, also risks impermissible double-counting where that fact has already influenced the head sentence.

Orders Made

• The application for leave to appeal should be dismissed.

Key Takeaways

  • The Court of Criminal Appeal confirmed that youthful age does not automatically reduce moral culpability in sentencing: the nature and circumstances of the offending must be assessed case by case to determine whether immaturity is genuinely in play.
  • A distinction exists between the audacity or boldness that may characterise sophisticated, premeditated offending by a person in their mid-twenties, and the kind of immaturity associated with young offenders that has been recognised as warranting some reduction in sentence.
  • Where fraud offending involves careful planning over an extended period, a significant breach of employment trust, and technical complexity, a sentencing court is not required to apply the same leniency principles developed for impulsive or peer-influenced youthful conduct.
  • In aggregate sentence proceedings, the rationale for finding special circumstances based on accumulation of sentences does not apply, because only one sentence with one non-parole period is actually imposed.
  • No error of principle was established on the facts, and both the six-year head sentence and the four-year non-parole period were within the accepted range for serious fraud offending of this kind.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 21A(3)(j), 44(2), 44(2B)
- Corporations Act 2001 (Cth), ss 1043A, 1311(1)
- Sentencing Act 1989 (NSW)

Key Cases
- House v The King (1936) 55 CLR 499 (test for appellate intervention in sentencing)
- Dinsdale v The Queen (2000) 202 CLR 321
- Markarian v The Queen (2005) 228 CLR 357
- Hili v The Queen (2010) 242 CLR 520
- Abdul v R [2019] NSWCCA 18
- BP v The Queen (2010) 201 A Crim R 379; [2010] NSWCCA 159
- Hartman v R [2011] NSWCCA 261
- HJ v R [2014] NSWCCA 21
- Johnston v R [2017] NSWCCA 53
- KT v The Queen (2008) 182 A Crim R 571; [2008] NSWCCA 51
- MS2 v The Queen (2005) 158 A Crim R 93; [2005] NSWCCA 397
- Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221
- Collier v R [2012] NSWCCA 213
- Hejazi v R (2009) 217 A Crim R 151; [2009] NSWCCA 282
- Edwards v R [2020] NSWCCA 141
- Ho v R [2013] NSWCCA 174
- MD v R [2015] NSWCCA 37