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9
Court of Criminal Appeal 9 March 2023

Harris v R

[2023] NSWCCA 44

Fraud & dishonesty

Citation: Harris v R [2023] NSWCCA 44
Court: NSW Court of Criminal Appeal
Date: 9 March 2023
Judges: Beech-Jones CJ at CL; Yehia J; Weinstein J

Background

The applicant pleaded guilty to six counts of dishonestly obtaining a financial advantage by deception, and two counts of attempting to do so, contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW). The offences arose from a series of fraudulent applications made in April and May 2020 for small business grants established to assist those affected by the 2019 to 2020 NSW bushfires. The applicant submitted eight online applications under different ABNs and bank account numbers, fraudulently obtaining six grants of $10,000 each, with two further applications unsuccessful.

At the time of sentencing in May 2022, the applicant was already serving a four-year sentence (running from 4 June 2020 to 3 June 2024) with a non-parole period of 2 years and 3 months. The sentencing judge imposed a further aggregate sentence of 3 years commencing 4 June 2022, with a non-parole period of 2 years. The sentencing judge noted the principle of totality and made a finding of special circumstances based on the applicant serving other sentences.

The applicant sought leave to appeal on the sole ground that the sentencing judge erred in applying the totality principle when accumulating the new sentence upon the existing one.

  • Whether the sentencing judge erred in applying the totality principle when accumulating the new sentence on the existing sentence
  • Whether the resulting ratio of the total combined non-parole period to the total combined sentence, at 80%, was consistent with the sentencing judge's apparent intention and with applicable sentencing principles

Decision

The Court of Criminal Appeal granted leave to appeal and allowed the appeal. When the two sentences were viewed together, the total effective non-parole period (4 June 2020 to 3 June 2024, being four years) represented 80% of the total combined head sentence (4 June 2020 to 3 June 2025, being five years). That ratio substantially exceeded the standard three-quarters threshold reflected in s 44 of the Crimes (Sentencing Procedure) Act 1999 (NSW).

Beech-Jones CJ at CL held that the sentencing judge had erred by failing to recognise that the accumulation structure he adopted produced this elevated ratio. The error lay either in fixing the commencement date of the new sentence, in selecting the non-parole period, or in both. The Court drew on Cahyadi v R [2007] NSWCCA 1 and Lonsdale v R [2020] NSWCCA 267, which confirm that where a combined sentence structure results in a non-parole period exceeding 75% of the total term, the sentencing judge must clearly advert to that fact and explain why it is intended.

The Court resentenced the applicant by reducing the aggregate sentence to 2 years and 10 months commencing 4 July 2022, with a non-parole period of 18 months. This adjustment brought the overall ratio of the combined non-parole period to the combined head sentence back within an appropriate range. Yehia J added that a finding of special circumstances inherently calls for a downward adjustment to the non-parole period, and that where accumulation produces a ratio exceeding 75%, the sentencing judge must clearly express that this outcome was intentional.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The District Court sentence of 23 May 2022 set aside and the applicant resentenced to an aggregate term of 2 years and 10 months imprisonment commencing 4 July 2022 and expiring 3 May 2025, with a non-parole period of 18 months (earliest parole eligibility date: 3 January 2024)
  • Indicative individual sentences recorded: 12 months for each of Sequences 1 and 3 to 7; 10 months for Sequences 2 and 8
  • A suppression order was made under s 7 of the Court Suppression and Non-publication Orders Act 2010 (NSW) over specified materials in affidavits, operative throughout the Commonwealth for 10 years

Key Takeaways

  • Where cumulative sentencing produces a combined non-parole period exceeding 75% of the total combined head sentence, the sentencing judge must expressly recognise that outcome and indicate it was intentional; silence on the point may constitute error.
  • A finding of special circumstances carries with it a necessary downward adjustment to the non-parole period, and this must be borne in mind when structuring an accumulated sentence.
  • The Court of Criminal Appeal confirmed that the error in Harris could arise from the choice of commencement date, the selection of the non-parole period, or both, illustrating that the totality inquiry extends to the mechanics of how sentences are combined.
  • Applying Cahyadi v R and Lonsdale v R, the Court treated a ratio of 80% as substantially exceeding the statutory benchmark and not supportable absent an express statement of intent from the sentencing judge.
  • Resentencing resulted in a modest reduction to both the head sentence and the non-parole period, restoring a ratio consistent with the sentencing judge's apparent intention to reflect totality and special circumstances.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 44(2A), 53A(2)(b)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)
- Court Suppression and Non-publication Orders Act 2010 (NSW), ss 7, 8, 10

Cases:
- Cahyadi v R (2007) 168 A Crim R 41; [2007] NSWCCA 1
- Lonsdale v R [2020] NSWCCA 267
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70
- Haak v R [2022] NSWCCA 28
- Deakin v R [2014] NSWCCA 121
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25