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Court of Criminal Appeal 2 December 2022

Carnaby v R

[2022] NSWCCA 250

Fraud & dishonesty
CRIME APPEAL SENTENCING WIDE EVIDENCE OF EVENTS POST SENTENCING

Citation: Carnaby v R [2022] NSWCCA 250
Court: NSW Court of Criminal Appeal
Date: 2 December 2022
Judges: Button J, Fagan J, R A Hulme AJ

Background

A jury in the District Court convicted the appellant on 19 counts arising from a scheme to fraudulently obtain finance for luxury motor vehicles. The offending involved submitting false tax returns and other documents to credit providers between 2013 and early 2016, overstating borrowers' incomes to secure loans. The total credit fraudulently obtained was approximately $2.56 million, with losses to finance companies of around $2.29 million.

The offences fell into two categories: 15 counts of dishonestly obtaining a financial advantage by deception (under s 192E(1)(b) of the Crimes Act 1900 (NSW)), and four counts of recruiting others to assist in carrying out criminal activity (under s 351A(1)). The recruited individuals were innocent third parties who were duped into acting as purported loan applicants.

District Court Judge O'Rourke SC imposed an aggregate sentence of 9 years' imprisonment with a non-parole period of 5 years and 5 months. The appellant, who was self-represented, applied to the Court of Criminal Appeal for leave to appeal against sentence. His earlier appeal against conviction had already been dismissed.

  • Whether the District Court made any of the numerous alleged sentencing errors raised by the self-represented appellant
  • Whether the aggregate sentence was manifestly excessive
  • Whether the Court of Criminal Appeal should receive fresh evidence relating to events occurring after sentencing

Decision

The Court granted an extension of time and leave to appeal, but unanimously dismissed the appeal. R A Hulme AJ (with whom Button J and Fagan J agreed) found no merit in any of the grounds advanced.

The sentencing judge had carefully assessed the objective seriousness of each offence, rating most at mid-range and three recruitment offences slightly above mid-range. She took into account the scale and duration of the fraud, the significant planning involved, the near-total unrecoverability of the funds, and the fact that innocent third parties were recruited to participate. The appellant's subjective circumstances, including his age (68 at sentencing), physical health issues, prior criminal history for similar dishonesty offences, and the additional hardship of custody during the COVID-19 pandemic, were all considered and factored into the sentence.

The Court rejected the wide-ranging complaints of error pressed by the appellant, finding no identifiable legal or factual error in the primary judge's approach to sentencing. The sentence was also found not to be manifestly excessive given the serious and extensive nature of the criminality. Fagan J specifically agreed with R A Hulme AJ's conclusion that the Court should not receive the post-sentencing evidence the appellant sought to tender.

Orders Made

  • Time for filing notice of application for leave to appeal against sentence extended to 5 July 2022
  • Leave to appeal against sentence granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that no identifiable error in principle or fact was established in the District Court's sentencing of the appellant, and that the aggregate sentence of 9 years was not manifestly excessive for a large-scale, prolonged fraud involving $2.56 million in false credit applications.
  • The District Court's assessment of objective seriousness at mid-range (or slightly above for the recruitment offences) was upheld, with the Court finding the scale, planning, and duration of the scheme, along with the duping of innocent third parties, properly weighed in the sentencing exercise.
  • A prior criminal record for similar dishonesty offences did not operate as a formal aggravating factor in this case, but it did limit the leniency available to the sentencing court.
  • Health conditions and the hardships of custody during the COVID-19 pandemic were accepted as relevant subjective matters that the sentencing judge took into account, though they did not reduce the sentence to a level the appellant sought.
  • Fresh evidence of post-sentencing events was refused admission, with the full Court agreeing that such material did not provide a proper basis for intervention on appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(b) and 351A(1)
- Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 21A(3), 22A, 44 and 44(2B)

Cases:
- Carnaby v R [2021] NSWCCA 275
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Cahyadi v R [2007] NSWCCA 1
- GAR v R [2021] NSWCCA 265
- Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
- House v The King (1936) 55 CLR 499
- JM v R [2014] NSWCCA 297
- Khoury v R [2011] NSWCCA 118
- Mulato v R [2006] NSWCCA 282
- Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
- Obeid v R (2018) 96 NSWLR 155
- Osman v R [2020] NSWCCA 78
- R v Giam (No 2) [1999] NSWCCA 378