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Court of Criminal Appeal 17 May 2023

Kelly v R

[2023] NSWCCA 104

Fraud & dishonesty
CRIME SENTENCING SINGLE GROUND OF MANIFEST EXCESS MULTIPLE OFFENCES RANGE OF OBJECTIVE SERIOUSNESS LENIENCY FOR GOOD CHARACTER

Citation: Kelly v R [2023] NSWCCA 104
Court: Court of Criminal Appeal, NSW
Date: 17 May 2023
Judge(s): Bell CJ at [1]; Walton J at [18]; Davies J at [130]

Background

The appellant was an employee of a financial services company whose role included contacting investors whose long-term investment products were approaching maturity. Over a five-year period beginning in 2013, he exploited that position to redirect unclaimed investor funds into bank accounts he controlled, typically by forging investor signatures on payment directions. The fraud affected approximately 90 victims and involved a total of approximately $6.7 million.

The appellant pleaded guilty in the District Court to 31 counts of dishonestly obtaining a financial advantage by deception under s 192E(1)(b) of the Crimes Act 1900 (NSW). A further 59 counts of the same offence were included on Forms 1, meaning they were taken into account at sentencing but did not attract separate penalties. The District Court imposed an aggregate sentence of 13 years' imprisonment with a non-parole period of 8 years.

The appellant sought leave to appeal to the Court of Criminal Appeal on the sole ground that the aggregate sentence was manifestly excessive. He supported that ground by pointing to several alleged patent errors in the sentencing judge's reasoning.

  • Whether indicative sentences entered under s 53A(2) of the Crime (Sentencing Procedure) Act 1989 (NSW) are themselves appealable, and what role they play in assessing the aggregate sentence on appeal.
  • Whether the sentencing judge erred in assessing two specific counts (counts 18 and 29) as above the mid-range of objective seriousness.
  • Whether the "notional starting point" for the aggregate sentence, before application of the guilty plea discount, was excessive.
  • Whether the sentencing judge misapplied principles relating to the mitigating effect of prior good character.
  • Whether the aggregate sentence of 13 years was manifestly excessive overall.

Decision

Indicative sentences and the appellate role. The court confirmed that indicative sentences entered under s 53A(2) are not directly amenable to appeal. They may, however, serve as a guide to whether error is established in relation to the aggregate sentence. Critically, even if individual indicative sentences are excessive, that does not automatically mean the aggregate sentence is excessive. The principal focus on a manifest excess ground is whether the aggregate sentence properly reflects the totality of the offending.

Objective seriousness of specific counts. The court rejected the argument that counts 18 and 29 were incorrectly assessed as above the mid-range. Count 18, which involved over $1 million, was properly characterised as a serious instance of fraud. Regarding count 29, the court found no error in the sentencing judge imposing a longer sentence to reflect the community's entitlement to retribution in circumstances where the Form 1 offences did not attract separate punishment.

Notional starting point and good character. The court held that the appellant's argument based on the notional starting point of 17 years and 4 months was misconceived, because that figure represented the pre-discount aggregate of the indicative sentences, not an independent error in principle. On the question of good character, the court accepted the sentencing judge did give weight to that factor but was entitled to reduce its significance given the sustained and repeated nature of the offending over many years.

Overall sentence. The court found the aggregate sentence was not manifestly excessive. The offending was systematic and serious, the motive was greed (reflected in a luxurious lifestyle), and at the time of his arrest the appellant intended to continue the fraud on a substantial scale. The court emphasised that white-collar crime is not diminished in seriousness, and that general deterrence and denunciation required significant weight. A comparative sentence from a District Court decision involving a solicitor's fraud was not accepted as establishing that the sentence was excessive.

Orders Made

  • Leave to appeal granted.
  • The appeal dismissed.

Key Takeaways

  • Indicative sentences imposed under s 53A(2) of the Crime (Sentencing Procedure) Act 1989 (NSW) are not directly appealable, though they may inform an appellate court's assessment of whether the aggregate sentence is infected by error.
  • Even where indicative sentences may be open to criticism, that does not necessarily establish that the aggregate sentence is manifestly excessive; the focus must remain on whether the aggregate reflects the totality of the criminality.
  • Where an offender commits repeated fraud over a prolonged period, the mitigating weight ordinarily accorded to prior good character is of reduced significance, and a sentencing court is entitled to limit that reduction accordingly.
  • A single comparative sentencing decision, or even several such decisions, cannot establish a sentencing range; a departure from one comparable case does not, of itself, demonstrate manifest excess.
  • In dismissing the appeal, the court reaffirmed that white-collar fraud is not treated as inherently less serious than other forms of serious offending, and that general deterrence and denunciation are factors requiring substantial weight in large-scale, sustained fraud cases.

Legislation and Cases Referenced

Legislation:
- Crime (Sentencing Procedure) Act 1989 (NSW), including s 53A(2)
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Adzioski v R [2013] NSWCCA 69
- Aryal v R [2021] NSWCCA 2
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Burke v R [2022] NSWCCA 6
- CMB v Attorney-General (NSW) (2015) 256 CLR 236; [2015] HCA 9
- DH v R [2022] NSWCCA 200
- GG v R [2022] NSWCCA 102
- Hayek v R [2016] NSWCCA 126
- Higgins v R [2020] NSWCCA 169
- House v King (1936) 55 CLR 499
- Hughes v R [2018] NSWCCA 2
- JM v The Queen (2014) 246 A Crim R 528; [2014] NSWCCA 297
- Kerr v R (2016) 78 MVR 191; [2016] NSWCCA 218
- Lees v R [2019] NSWCCA 65
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- McDowell v R [2018] NSWCCA 29
- McLaren v R [2021] NSWCCA 12
- McMahon v R [2011] NSWCCA 147
- Mulato v R [2006] NSWCCA 282
- Noonan v R [2021] NSWCCA 35
- R v Brown [2012] NSWCCA 199
- Ryan v The Queen (2001) 206 CLR 267; [2001] HCA 21