AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
1
Court of Criminal Appeal 2 July 2021

Cordoba v R

[2021] NSWCCA 144

Fraud & dishonesty
ARGUMENT NOT RAISED BELOW PRINCIPLE OF TOTALITY APPEAL DISMISSED

Citation: Cordoba v R [2021] NSWCCA 144
Court: NSW Court of Criminal Appeal
Date: 2 July 2021
Judges: Simpson AJA, Garling J, N Adams J (judgment delivered by N Adams J)

Background

The appellant was a senior TAFE employee who, while acting as manager of ICT services at the South Western Sydney Institute of TAFE, orchestrated a series of dishonest schemes between late 2012 and 2014. He fraudulently billed a technology supplier $55,000 for services he was neither authorised to provide nor actually delivered, and separately used the ABN of an unrelated company to establish himself as a vendor and funnel over $1 million in government procurement funds to his own entities. Around $600,000 of that sum remained unrecovered.

The offending did not end with the original fraud. When investigators first questioned the appellant, he lied. He later gave false evidence at an ICAC public inquiry. He then obtained an adjournment of his sentencing hearing on the basis that he required surgery, did not have the surgery, assumed a false identity, and absconded for close to a year before being apprehended.

He pleaded guilty and was sentenced in the District Court in November 2019 to an aggregate sentence of 8 years' imprisonment with a non-parole period of 6 years. He sought leave to appeal that sentence to the Court of Criminal Appeal.

  • Whether the sentencing judge erred in assessing the objective seriousness of the offences by taking into account subjective factors (including the guilty plea) at the wrong stage of the sentencing process
  • Whether the sentencing judge erred by failing to consider whether count 1 (the $55,000 fraud on Cloud People) could have been disposed of summarily, which would have attracted a lower maximum penalty
  • Whether the aggregate sentence of 8 years was manifestly excessive

Decision

On the first ground, the Court of Criminal Appeal found no error. The appellant argued that the sentencing judge had impermissibly conflated objective and subjective considerations when assessing objective seriousness. Reading the remarks on sentence as a whole, however, N Adams J was satisfied that the sentencing judge had properly assessed objective seriousness first and then turned separately to subjective factors. The reference to the guilty plea within the objective seriousness discussion did not infect the analysis in the way the appellant contended.

On the second ground, the court declined to entertain the argument because it had not been raised at first instance. More fundamentally, the court found it unnecessary to consider the hypothetical scenario in which count 1 was assessed in isolation. The appellant had been sentenced for multiple serious offences committed across several years, including a fraud exceeding $1 million, and the sentencing exercise properly considered all counts together.

On manifest excess, N Adams J accepted that the indicative sentence for count 1 was high and described it as "very high, possibly manifestly so." However, the court applied the totality principle, which requires the aggregate sentence to be assessed as a whole rather than by examining each indicative sentence in isolation. Even accepting that the indicative sentence on count 1 might have been excessive, the court was satisfied that the overall aggregate sentence of 8 years was not unjust or plainly unreasonable given the breadth and seriousness of the conduct.

The court emphasised several aggravating features: the offending was not opportunistic but required significant planning and sophistication; the appellant had exploited a position of trust built over many years; TAFE had sponsored his education; the funds defrauded came from taxpayers; the appellant had a prior conviction for dishonesty from 1996; and his conduct after being apprehended, including lying to investigators, giving false evidence at ICAC, and absconding for nearly a year under a false identity, substantially aggravated the overall picture.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that sentencing remarks must be read as a whole: an isolated reference to subjective matters within an objective seriousness discussion does not necessarily establish error if the remarks overall reflect a proper two-stage analysis.
  • The totality principle operates at the level of the aggregate sentence. Even where an indicative sentence on one count may be excessive, that does not automatically render an aggregate sentence manifestly excessive if the overall term is a just reflection of the totality of the offending.
  • Arguments not raised before the sentencing court face significant obstacles on appeal, particularly where the argument would require the appellate court to assess a hypothetical sentencing scenario divorced from the actual circumstances of a multi-count prosecution.
  • Conduct after the commission of the primary offences, including lying to investigators, giving false evidence at a public inquiry, and absconding under a false identity, can substantially inform the sentencing court's assessment of moral culpability and prospects of rehabilitation.
  • No requirement arose to consider the possibility of summary disposal of a single count where the offender was being sentenced for a course of serious offending across multiple counts over several years.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E
- Bail Act 2013 (NSW), s 79
- Independent Commission Against Corruption Act 1988 (NSW), ss 80(c), 87(1)
- Criminal Appeal Act 1912 (NSW), s 5
- Criminal Procedure Act 1986 (NSW), ss 166, 260
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A

Cases:
- House v The King (1936) 55 CLR 499
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- Pearce v The Queen (1998) 194 CLR 610
- Wong v The Queen (2001) 207 CLR 584
- Hili v The Queen (2010) 242 CLR 520
- Kentwell v The Queen (2014) 252 CLR 601
- Obeid v R (2017) 96 NSWLR 155
- GW v R [2018] NSWCCA 79
- Kliendienst v R [2020] NSWCCA 98
- Matthews v R [2014] NSWCCA 185
- JM v R [2014] NSWCCA 297
- Zreika v R [2012] NSWCCA 44
- Mulato v R [2006] NSWCCA 282
- R v Van Ryn [2016] NSWCCA 1
- R v Trindall [2005] NSWCCA 446