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Court of Criminal Appeal 16 March 2022

R v MT

[2022] NSWCCA 53

Fraud & dishonesty
UP COUNTS

Citation: R v MT [2022] NSWCCA 53
Court: NSW Court of Criminal Appeal
Date: 16 March 2022
Judges: Johnson J (principal reasons); Harrison J; Fagan J

Background

The respondent pleaded guilty in the Parramatta District Court to six counts of dealing with funds reasonably suspected of being proceeds of crime under s 193C(1) of the Crimes Act 1900 (NSW), one count of attempting to obtain a financial advantage by deception under s 192E(1)(b) of the same Act, and one count of dealing with money reasonably suspected of being proceeds of crime under s 400.9(1) of the Criminal Code (Cth). Two further offences were taken into account on a Form 1. The offences involved approximately $103 million over a 15-month period.

The District Court imposed an aggregate sentence of five years' imprisonment with a non-parole period of two years and six months for the State offences, plus a concurrent one-year sentence for the Commonwealth offence. The sentencing judge applied a combined 40% discount: 25% for early guilty pleas and 15% for past and anticipated assistance to law enforcement. A non-publication and pseudonym order was in place due to the respondent's extensive cooperation with authorities.

The Crown appealed, initially on a single ground of manifest inadequacy. An amended notice of appeal added a first ground alleging error in the assessment of objective seriousness of the individual s 193C(1) offences.

  • Whether the sentencing judge erred by assigning identical indicative sentences to four s 193C(1) counts despite substantial differences in the amounts of money and number of transactions involved in each (Ground 1).
  • Whether the rolled-up nature of each s 193C(1) charge was properly accounted for in assessing objective seriousness.
  • Whether the aggregate sentence imposed was manifestly inadequate (Ground 2).
  • Whether, if error was established, the Court of Criminal Appeal should exercise its residual discretion to decline to resentence the respondent.

Decision

Ground 1: Individual assessment of objective seriousness

The Court of Criminal Appeal found that the sentencing judge erred by assigning the same indicative sentence of one year and nine months to four s 193C(1) counts (Sequences 5 through 8) despite very significant differences between them. The amounts involved ranged from approximately $3.5 million to nearly $34 million. Each count was a rolled-up charge, meaning it encompassed multiple transactions over a defined period, and the number and scale of those transactions were directly relevant to assessing objective seriousness. No reasoning in the sentencing remarks explained the lack of differentiation, and none could be inferred. Ground 1 was established.

Ground 2: Manifest inadequacy

The Court held that this error contributed to an overall sentence that was manifestly inadequate. Even making full allowance for the respondent's strong subjective circumstances and the well-justified 40% combined discount, a total effective sentence of five years and six months for offences involving approximately $103 million in suspected proceeds of crime was insufficient. The Commonwealth sentence had no meaningful practical effect beyond extending the parole eligibility date by approximately two months.

Residual discretion: decline to resentence

Despite finding manifest inadequacy, the Court declined to resentence. It exercised the residual discretion available in Crown sentence appeals, taking into account several exceptional factors. Since the District Court sentenced the respondent, he had provided substantial new assistance to authorities in areas beyond those previously disclosed. His earliest release date was imminent at the time the orders were made (10 March 2022), and the orders were in fact made on 8 March 2022 for that reason. The Court acknowledged the function of Crown sentence appeals as a means of vindicating proper sentencing standards rather than necessarily increasing punishment, and concluded that the combination of exceptional circumstances, the significant and ongoing cooperation, and the imminence of release made resentencing inappropriate. The Crown appeal was dismissed.

Orders Made

  • Crown appeal dismissed.
  • Non-publication and pseudonym orders maintained.

Key Takeaways

  • Sentencing courts must individually assess the objective seriousness of each rolled-up count, and a failure to differentiate between counts involving vastly different amounts of money constitutes identifiable error.
  • Under the aggregate sentencing regime in s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999 (NSW), indicative sentences for component offences must reflect a coherent and reasoned assessment of relative criminality; uniformity in the face of varying criminality is an error of principle.
  • A finding of manifest inadequacy does not automatically produce resentencing in a Crown appeal. The Court of Criminal Appeal confirmed that residual discretion permits the court to dismiss a Crown appeal even where error is established, when the circumstances are exceptional and unusual.
  • In this case, substantial post-sentence assistance to authorities in new subject areas, combined with an imminent release date, were determinative in the exercise of that residual discretion.
  • The 40% combined discount for early guilty pleas (25%) and assistance to authorities (15%) was expressly endorsed by the Court of Criminal Appeal as well justified on the particular facts.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 192E(1)(b), 193C(1)
- Criminal Code (Cth), s 400.9(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 32, 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5D(1)
- Crimes Act 1914 (Cth), s 20(1)(b)(i)
- Criminal Legislation Amendment (Organised Crime and Public Safety) Act 2016 (NSW)
- Confiscation of Proceeds of Crime Amendment Act 2005 (NSW)

Cases
- HT v The Queen (2019) 269 CLR 403
- Green v The Queen; Quinn v The Queen (2011) 244 CLR 462
- Pearce v The Queen (1998) 194 CLR 610
- CMB v Attorney General for New South Wales (2015) 256 CLR 346
- Everett v The Queen (1994) 181 CLR 295
- Ansari v R (2007) 70 NSWLR 89
- R v Amati (2019) 279 A Crim R 73
- JM v R (2014) 246 A Crim R 528
- BB v R [2021] NSWCCA 283
- Humphreys v R [2020] NSWCCA 144
- Johnston v R [2017] NSWCCA 53