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Court of Criminal Appeal 15 February 2023

Kapua v R

[2023] NSWCCA 14

Fraud & dishonesty
CRIME APPEAL APPEAL AGAINST SENTENCE OBTAIN PROPERTY BY DECEPTION MULTIPLE COUNTS MULTIPLE VICTIMS

Citation: Kapua v R [2023] NSWCCA 14
Court: NSW Court of Criminal Appeal
Date: 15 February 2023
Judges: Simpson AJA, Davies J, Wilson J

Background

The applicant pleaded guilty in the Local Court to nine dishonesty offences, with two further offences taken into account on Form 1 documents. The offending spanned four months and involved the applicant assuming six stolen identities to apply for financial advantages from various institutions, along with dealing in proceeds of crime.

The sentencing judge imposed six years' imprisonment with a non-parole period of four years and three months. The applicant had a lengthy prior criminal history for fraud and dishonesty across two countries and three jurisdictions, and was found to suffer from post-traumatic stress disorder (PTSD) with psychotic features.

The applicant sought leave to appeal against sentence on three grounds, challenging the treatment of her mental health condition, the assessment of the objective seriousness of the attempted offences, and the overall length of the sentence.

  • Whether the sentencing judge erred by failing to find that the applicant's PTSD with psychotic features reduced her moral culpability and the need for general deterrence.
  • Whether the sentencing judge erred in assessing the objective seriousness of the attempted (as distinct from completed) offences.
  • Whether the aggregate sentence of six years with a four-year three-month non-parole period was manifestly excessive.

Decision

Ground 1: Mental health and moral culpability (decided by majority)

The majority (Wilson J, Davies J agreeing) held that the sentencing judge's acceptance of the applicant's mental health condition did not automatically lead to a reduction in moral culpability or a reduced need for general deterrence. The sentencing judge had considered the psychological evidence and was not required to find, as a matter of course, that PTSD diminished culpability in the circumstances. This ground was dismissed by the majority.

Simpson AJA dissented on this ground. His Honour concluded that the sentencing judge had misunderstood the import of the psychologist's report and thereby failed to apply the established sentencing principles drawn from Director of Public Prosecutions (Cth) v De La Rosa (2010) concerning offenders with mental health conditions. In Simpson AJA's view, the applicant ought to have been resentenced with due allowance for her diminished moral culpability.

Ground 2: Objective seriousness of attempted offences (majority only)

Wilson J, with Davies J agreeing, held that the sentencing judge's characterisation of the offences as falling below the mid-range of seriousness was well open on the evidence. Importantly, the Court confirmed that an attempt to commit an offence is not automatically less serious than a completed offence. The fact that most of the applicant's attempts were unsuccessful did not greatly diminish the objective gravity of her conduct. Simpson AJA did not determine this ground.

Ground 3: Manifest excess (majority only)

The majority found that the sentence was not outside the available range and could not be regarded as unfair or unjust. The sentencing judge had considered all relevant objective and subjective factors. Although the applicant's personal background was acknowledged as difficult, her prospects of rehabilitation were described as "guarded," and the roles of specific deterrence and community protection were significant given her persistent offending history. Comparator cases raised by the applicant were distinguished as materially different on their facts. Simpson AJA did not determine this ground.

Orders Made

The orders below are those proposed by Simpson AJA in the dissenting judgment, which would have applied had the appeal been allowed. The majority's orders are reflected separately:

Majority orders (the operative orders of the Court):
- Leave to appeal granted.
- Appeal dismissed.

Orders proposed by Simpson AJA (dissent only, not the operative orders):
- Leave to appeal granted.
- Appeal allowed; sentence imposed on 8 September 2021 set aside.
- In lieu thereof, a term of imprisonment comprising a non-parole period of 3 years and 8 months with a balance of term of 1 year and 9 months, commencing 30 April 2020 and expiring 29 July 2025, with eligibility for parole on 29 December 2023.

Key Takeaways

  • Acceptance by a sentencing court of a diagnosed mental health condition does not automatically reduce an offender's moral culpability or diminish the need for general deterrence; the condition must be shown to have contributed materially to the offending.
  • A notable three-way split emerged on the mental health ground: the majority dismissed it on the merits, while Simpson AJA dissented on the basis that the sentencing judge had misread the psychological evidence and therefore misapplied the De La Rosa principles.
  • The principles from De La Rosa on sentencing offenders with mental illness, though not strictly part of the ratio of that decision, were treated by Simpson AJA as authoritatively stating the relevant law in NSW, given their consistent citation and application since 2010.
  • Attempted offences are not automatically of lesser objective seriousness than completed offences; the lack of success in carrying out fraudulent applications did not substantially reduce the gravity of the conduct.
  • Where an offender has a lengthy, repetitive criminal history for similar offending and only guarded prospects of rehabilitation, specific deterrence and community protection carry significant weight in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 192C(2), 192E(1)(a)-(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 33
- Crimes (Appeal and Review) Act 2001 (NSW), s 68A
- Criminal Appeal Act 1912 (NSW)

Cases:
- Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1; [2010] NSWCCA 194
- Bugmy v The Queen (2013) 249 CLR 571; [2013] HCA 37
- Betts v The Queen (2018) 258 CLR 420; [2018] HCA 25
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Muldrock v The Queen (2011) 244 CLR 120; [2011] HCA 39
- Anderson v R [2022] NSWCCA 187
- Apulu v R [2022] NSWCCA 244
- Barbieri v R [2016] NSWCCA 295
- DS v R; DM v R [2022] NSWCCA 156
- Gaffney v R [2009] NSWCCA 160
- Johnston v R [2017] NSWCCA 53
- McKittrick v R [2014] NSWCCA 128
- McLaren v R [2021] NSWCCA 12
- Pereira v R [2018] NSWCCA 171
- R v Burke [2002] NSWCCA 353
- R v Deng [2007] NSWCCA 216; (2007) 176 A Crim R 1
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Israil [2002] NSWCCA 255
- R v Lauritsen [2000] WASCA 3; (2000) 114 A Crim R 333
- R v Schofield (2003) 138 A Crim R 19; [2003] NSWCCA 3