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Court of Criminal Appeal 22 October 2021

Roy v R

[2021] NSWCCA 247

DrugsFraud & dishonesty

Citation: Roy v R [2021] NSWCCA 247
Court: NSW Court of Criminal Appeal
Date: 22 October 2021
Judges: Johnson J, Fullerton J, Dhanji J

Background

The applicant had been sentenced in the District Court on 12 June 2020 to an aggregate term of 6 years' imprisonment with a non-parole period of 3 years and 6 months for 17 offences. Those offences arose from his participation in a fraudulent online scheme operating between India and Australia, involving money laundering and obtaining property by deception across 31 victims and totalling approximately $472,693 in attempted fraudulent transfers.

The applicant had also been sentenced separately for supplying a large commercial quantity of a prohibited drug, and his aggregate sentence was ordered to run partially concurrently with that sentence. Each indicative sentence in the aggregate exercise reflected a 25% discount for his pleas of guilty.

Before the sentencing hearing, the applicant had provided assistance to investigating police. His legal representatives at the sentencing hearing failed to bring that assistance to the sentencing judge's attention, meaning the judge had no opportunity to apply a sentencing discount under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing proceedings miscarried because the applicant's legal representatives failed to present evidence of his assistance to authorities to the sentencing judge
  • Whether fresh evidence of the assistance could be admitted on appeal, as an exception to the general rule against receiving new evidence on sentence appeals
  • Whether the failure to rely on that evidence at first instance constituted a rational forensic decision
  • Whether, on resentencing, a discount for assistance to authorities ought to be applied under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW)

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. All three judges agreed that the sentencing proceedings had miscarried because the applicant's legal representatives did not place his assistance to authorities before the sentencing judge, thereby depriving him of a discount that the judge should have been asked to assess.

The Court admitted fresh evidence of the assistance as an exception to the general rule, applying the principles in Khoury v R (2011) 209 A Crim R 509. The reasoning that supported the admission of similar evidence in ZZ v R [2019] NSWCCA 286 was held to apply equally here.

Dhanji J, with whom the other judges agreed, observed that even without a formal assessment of utility by authorities, it was difficult to dismiss the information as having no value. His Honour noted that utility is not the sole criterion for a sentencing discount under s 23(2), and that public policy supports encouraging offenders to disclose information to authorities. The decision by the applicant's representatives not to rely on the assistance material was therefore not a rational forensic decision within the meaning established in TKWJ v The Queen (2002) 212 CLR 124.

The Court proceeded to resentence the applicant under s 6(3) of the Criminal Appeal Act 1912, taking into account the assistance under s 23 of the Crimes (Sentencing Procedure) Act 1999. The aggregate sentence was reduced from 6 years with a non-parole period of 3 years and 6 months, to 5 years and 9 months with a non-parole period of 3 years and 3 months.

Orders Made

  • Appeal allowed
  • The sentence imposed in the District Court on 12 June 2020 is quashed
  • In lieu thereof, a sentence of 5 years and 9 months' imprisonment is imposed, commencing 22 July 2018 and expiring 21 April 2024, with a non-parole period of 3 years and 3 months
  • The applicant becomes eligible for release on parole upon expiry of the non-parole period on 21 October 2021

Key Takeaways

  • A sentencing proceeding may miscarry where legal representatives fail to draw material favourable to the offender, such as assistance to authorities, to the sentencing judge's attention, even where the procedural error lies with the representatives rather than the court itself.
  • Admission of fresh evidence on a sentence appeal is available as an exception to the general rule, where that evidence was available at first instance but was not placed before the sentencing judge through no rational forensic choice.
  • Under s 23 of the Crimes (Sentencing Procedure) Act 1999 (NSW), utility of information provided to authorities is not the sole criterion for a sentencing discount; the public policy of encouraging offenders to cooperate with authorities is also a relevant consideration.
  • Where an offender could not reasonably assess how their information would be used by authorities, the absence of a formal police assessment of utility does not automatically preclude a discount for assistance.
  • Failing to present assistance evidence at sentencing will not be treated as a rational forensic decision where the evidence was of at least some value and the omission had no apparent strategic justification.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E, 192K, 193B
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 23
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6(3)

Cases:
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- De Campos v R [2006] NSWCCA 51
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Khoury v R (2011) 209 A Crim R 509; [2011] NSWCCA 118
- Macallister (a pseudonym) v R [2020] NSWCCA 306
- R v Bourchas (2002) 133 A Crim R 413; [2002] NSWCCA 373
- TKWJ v The Queen (2002) 212 CLR 124; [2002] HCA 46
- ZZ v R [2019] NSWCCA 286