AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
12
Court of Criminal Appeal 16 June 2021

R v Edelbi

[2021] NSWCCA 122

Also reported as (2021) 105 NSWLR 133
Fraud & dishonesty
CRIMINAL LAW FRAUD OFFENCES AGGREGATE SENTENCE

Citation: Edelbi v R [2021] NSWCCA 122
Court: Court of Criminal Appeal, NSW
Date: 16 June 2021
Judges: Hoeben CJ at CL, Bellew J, Hidden AJ

Background

The applicant pleaded guilty in the District Court to 11 counts of fraud-related offending, including participation in a criminal group, making false or misleading statements with intent to obtain a financial advantage, and dishonestly obtaining a financial advantage by deception. The charges arose from his involvement in a systematic scheme to defraud the NSW compulsory third party (CTP) insurance system. He occupied a managerial role in the group, controlling invoicing, bookkeeping, and finances, and was responsible for creating large numbers of false documents recording fictitious professional services and appointments.

The sentencing judge imposed an aggregate sentence of three years' imprisonment with a non-parole period of two years. The applicant also asked the court to take into account ten further offences on a Form 1 (a procedure under which additional charges are noted and factored into the sentence without a separate conviction being recorded). He sought leave to appeal against that sentence.

The key dispute on appeal concerned whether the sentencing judge was required to consider an intensive correction order (ICO), an alternative to full-time custody served in the community under supervision, and whether her Honour's findings on objective seriousness and the characterisation of the offending as a breach of trust were correct.

  • Whether the sentencing judge was required, under s 66 of the Crimes (Sentencing Procedure) Act 1999 (NSW), to expressly consider an ICO in her reasons for sentence.
  • Whether the offending properly constituted a breach of trust.
  • Whether the trial judge's finding as to the objective gravity of the offending was open on the facts.
  • Whether, on re-sentence, this Court could backdate an ICO to the commencement of the original sentence, or whether it was required to reduce the sentence to account for time already served in full-time custody.

Decision

The Court (by majority, Hoeben CJ at CL and Hidden AJ, with Bellew J dissenting on re-sentence) granted leave to appeal and allowed the appeal on ground 1 only. The majority found that the sentencing judge had erred by failing to expressly consider an ICO in her reasons, as required by s 66 of the Crimes (Sentencing Procedure) Act. Grounds 2, 3, and 4 (concerning objective gravity, breach of trust, and other aspects of sentencing) were rejected by all members of the Court.

On re-sentence, Hidden AJ addressed the question of how to account for the 13 months the applicant had already spent in full-time custody. Two earlier decisions of the Court had taken different approaches: Blanch v R [2019] NSWCCA 304 suggested the ICO could be backdated, while Mandranis v R [2021] NSWCCA 97 concluded that an ICO made by the Court of Criminal Appeal must commence on the date it is made, with the overall sentence reduced instead to account for time served. Hidden AJ preferred and followed the approach in Mandranis.

Accordingly, Hidden AJ reduced the aggregate sentence from three years to one year and 11 months (reflecting the 13 months already served), to be served by way of an ICO commencing on the date of the Court's orders. The Court noted that the sentencing assessment material already before the original court was sufficient to support the making of an ICO without requiring a further report.

Bellew J, dissenting on the re-sentence, expressed the view that the proposed orders did not adequately reflect the objective seriousness of the offending, the need for general deterrence, or the need for personal deterrence given the ten Form 1 matters. His Honour considered that the applicant's subjective case, while containing genuine mitigating factors (particularly his cooperation with authorities), was not sufficiently powerful to justify the degree of leniency reflected in the majority's orders.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentence passed in the District Court quashed.
  • The applicant sentenced to imprisonment for 1 year and 11 months, to be served by way of intensive correction in the community, commencing 16 June 2021 and expiring 15 May 2023.
  • Conditions imposed: the applicant must not commit any offence; must submit to supervision by a community corrections officer; must receive any psychological treatment recommended to him.

Key Takeaways

  • Under s 66 of the Crimes (Sentencing Procedure) Act 1999, a sentencing judge is required to address the possibility of an ICO in their reasons; failure to do so constitutes an error warranting intervention on appeal.
  • The Court of Criminal Appeal confirmed, following Mandranis v R [2021] NSWCCA 97, that an ICO made on re-sentence takes effect from the date of the appellate order rather than being backdated to the original sentence commencement, with any time already served in full-time custody instead reflected by a reduction in the total term.
  • A tension remains in the Court's authorities on this point: Blanch v R [2019] NSWCCA 304 supported backdating, while Mandranis did not, and Hidden AJ noted that Mandranis apparently proceeded without reference to Blanch.
  • In assessing Form 1 offences on sentence, the Court reaffirmed that they must be taken into account by giving greater weight to personal deterrence and the community's entitlement to retribution, increasing the penalty that would otherwise be appropriate.
  • Where a criminal scheme defrauds the CTP insurance system, the broader community's direct interest in the integrity of that scheme is a relevant sentencing consideration, given that fraudulent claims carry the potential to increase premiums paid by all motor vehicle owners.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 93T(1), 192E(1)(b), 192G(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 9, 47, 66, 70, 71, 73, 73A
- Criminal Appeal Act 1912 (NSW), s 5
- Motor Accidents Compensation Act 1999 (NSW)

Cases
- Attorney-General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146
- Blanch v R [2019] NSWCCA 304
- Cassella v R [2019] NSWCCA 201
- FL v R [2020] NSWCCA 114
- Franklin v R [2016] NSWCCA 319
- Karout v R [2019] NSWCCA 253
- Mandranis v R [2021] NSWCCA 97
- Mulato v R [2006] NSWCCA 282
- Muldrock v The Queen (2011) 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- R v Fangaloka [2019] NSWCCA 173
- R v Smith [2000] NSWCCA 140
- R v Stanbouli (2003) 141 A Crim R 531
- Ridley v R (2008) 192 A Crim R 139
- Suleman v R [2009] NSWCCA 70
- Wany v DPP [2020] NSWCA 318