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Court of Criminal Appeal 7 July 2021

Sigalla v R (No 2)

[2021] NSWCCA 151

Fraud & dishonesty
JUDGMENTS AND ORDERS COURT OF CRIMINAL APPEAL APPLICATION FOR LEAVE TO RE OPEN PRINCIPLES GOVERNING WHETHER KENTWELL ERROR

Citation: Sigalla v R (No 2) [2021] NSWCCA 151
Court: NSW Court of Criminal Appeal
Date: 7 July 2021
Judge(s): Hoeben CJ at CL, Brereton JA, Cavanagh J

Background

The applicant had been convicted following a jury trial of 24 counts of dishonestly using his position as a company director to gain a benefit for himself or others, contrary to s 184(2)(a) of the Corporations Act 2001 (Cth). He was originally sentenced to ten years' imprisonment with a six-year non-parole period.

In March 2021, the Court of Criminal Appeal dismissed his conviction appeal but allowed his sentence appeal, substituting a sentence of nine years and six months with a non-parole period of five years and nine months: Sigalla v R [2021] NSWCCA 22 ("Sigalla No 1").

Shortly after that judgment, the applicant sought to re-open both the conviction and sentence appeals under r 50C of the Criminal Appeal Rules 1952 (NSW). He also requested the application be heard orally before a five-judge bench.

  • Whether the Court had failed to consider ground 4 of the conviction appeal, or had otherwise misapprehended facts or law in dismissing that appeal
  • Whether the Court's approach to resentencing was consistent with the High Court's requirements in Kentwell v The Queen (2014) 252 CLR 601
  • Whether the Court could validly have resentenced the applicant without first determining whether he was legally entitled to the moneys and shares he received, as required under s 16A(2)(e) of the Crimes Act 1914 (Cth)
  • Whether leave under r 50C(1A) should be granted, and whether the application warranted an oral hearing before a five-judge bench

Decision

The scope of r 50C. The Court confirmed that r 50C provides only a very narrow exception to the principle that once final orders are entered, the Court's jurisdiction over an appeal is spent. The rule permits correction of slips, oversights, and misapprehensions of fact or law, including failures to address a ground of appeal. It does not permit an applicant to re-argue an appeal, whether on the same grounds or on new ones.

The conviction appeal grounds. The Court found no error in its treatment of ground 4. As that ground had ultimately been pressed at the hearing as dependent on ground 1A, which failed, its dismissal followed as a matter of course. The remaining complaints about alleged misapprehensions of fact and law were found to be attempts to re-argue the appeal on grounds not previously advanced, which r 50C does not permit.

The sentence appeal and Kentwell. The Court explained that Kentwell requires the Court of Criminal Appeal, where a first-instance sentencing discretion has miscarried, to re-exercise the sentencing discretion afresh rather than merely adjust the original sentence. However, re-exercising the discretion is not the same as resentencing from a blank slate: it remains permissible to adopt unchallenged factual findings and evaluations made by the primary judge. The Court held its approach in Sigalla No 1 was consistent with Kentwell. It added that even if there had been a Kentwell error, such an error is not a slip or misapprehension within the meaning of r 50C; the proper remedy would be an application for special leave to appeal to the High Court.

The s 16A(2)(e) point. The submission that sentencing was invalid because neither the trial judge nor the Court had determined whether the applicant was legally entitled to the money and shares was rejected. The Court held it was implicit in the jury's guilty verdict that the applicant had no such legal entitlement, and the issue required no separate determination at sentencing. This argument also amounted to an impermissible attempt to raise a new ground not previously advanced.

Leave and procedural requests. The leave requirement under r 50C(1A) operates as a filter to dispose of unmeritorious applications without a full hearing. Because the applicant had not identified anything that arguably engaged r 50C, leave was refused. There was no basis for convening an oral hearing or a five-judge bench.

Orders Made

  • Leave to make an application under r 50C of the Criminal Appeal Rules 1952 (NSW) refused.

Key Takeaways

  • Rule 50C of the Criminal Appeal Rules (now replicated in r 5.4 of the Supreme Court (Criminal Appeal) Rules 2021) permits only the correction of slips, oversights, and misapprehensions of fact or law. It does not provide a vehicle for re-arguing an appeal on the same or new grounds after final orders have been made.

  • Under Kentwell, when re-exercising the sentencing discretion on appeal, the Court of Criminal Appeal is not required to reconsider afresh every factual matter and evaluation that informed the original sentence. It may adopt unchallenged findings and evaluations of the primary judge, provided it genuinely re-exercises the discretion rather than merely adjusting the original sentence.

  • Where an applicant argues that the Court of Criminal Appeal itself committed a Kentwell error in a concluded appeal, the Court of Criminal Appeal confirmed that the proper remedy is an application for special leave to appeal to the High Court, not a r 50C application.

  • A guilty verdict on charges of dishonestly using a directorial position carries an implicit finding that the accused was not legally entitled to the relevant benefit. That implicit finding does not need to be separately revisited at the sentencing stage in order to assess loss or damage under s 16A(2)(e) of the Crimes Act 1914 (Cth).

  • The leave requirement in r 50C(1A) functions as a threshold filter. Where an applicant cannot identify even an arguable slip, oversight, or misapprehension, leave is to be refused without a full hearing on the merits, and there is no basis for the additional procedural steps of an oral hearing or an expanded bench.

Legislation and Cases Referenced

Legislation
- Corporations Act 2001 (Cth), s 184(2)(a)
- Crimes Act 1914 (Cth), s 16A(2)(e)
- Criminal Appeal Rules 1952 (NSW), rr 4, 50C
- Supreme Court (Criminal Appeal) Rules 2021 (NSW), r 5.4

Cases
- Sigalla v R [2021] NSWCCA 22
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Simmons v R (No 2) [2020] NSWCCA 29
- Corliss v R (No 2) [2020] NSWCCA 180
- El Ali v R (No 2) [2019] NSWCCA 289
- Turnbull v R [2019] NSWCCA 97
- RO v R [2019] NSWCCA 183
- Dickson v R (No 2) [2018] NSWCCA 183
- Application of Ainsley Whitney [2020] NSWCCA 146
- Application of Malcolm Potier (No 3) [2015] NSWCCA 306
- Miller v R (No 2) (2016) 260 A Crim R 554; [2016] NSWCCA 158
- Baghdadi v R (No 2) [2012] NSWCCA 77
- Kauwenberghs v R (Cth) [2009] NSWCCA 201
- Alramadan v Director of Public Prosecutions (NSW) (No 2) [2008] NSWCCA 69
- Burrell v The Queen (2008) 238 CLR 218; [2008] HCA 34
- Elliot v The Queen (2007) 234 CLR 38; [2007] HCA 51
- Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300; [1993] HCA 6