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Supreme Court 9 May 2023

R v Cranston (No 31)

[2023] NSWSC 488

Fraud & dishonesty
CRIME — SENTENCE W ITHDRAWAL OF COMMONWEALTH LEGAL AID DELAY

Citation: R v Cranston (No 31) [2023] NSWSC 488
Court: Supreme Court of New South Wales
Date: 9 May 2023
Judge(s): Payne JA

Background

Following an almost year-long trial, a jury convicted the offender of two serious Commonwealth offences: a tax fraud conspiracy and a money laundering conspiracy involving over $105 million in federal tax revenue. The Commonwealth Attorney-General's Department had funded the offender's legal representation since May 2021, including throughout the entirety of the trial.

On 4 May 2023, without notice to the Court, the Commonwealth Attorney-General's Department withdrew the grant of legal aid on the basis that conviction had now been entered. The Department suggested that Legal Aid NSW should instead fund the sentencing proceedings. Legal Aid NSW indicated it could not make a decision on funding until at least early June 2023.

The Court was therefore unable to proceed to a sentencing hearing as planned. Payne JA delivered ex tempore reasons explaining why the sentencing hearing had to be adjourned and expressing concern about the consequences of the withdrawal.

  • Whether it is consistent with a fair sentencing hearing to proceed to sentence an unrepresented offender following a very serious criminal trial.
  • What steps the Court should take when legal representation is unexpectedly withdrawn shortly before an imminent sentencing hearing.
  • Which authority, Commonwealth or State, bears responsibility for funding legal representation at sentence in a Commonwealth prosecution.

Decision

Payne JA reaffirmed the principle established in Dietrich v The Queen (1992) 177 CLR 292 that the obligation to ensure a fair trial, including a fair sentencing hearing, falls on the trial judge. His Honour held that, given the gravity of the offences and the complexity arising from a year-long trial, legal representation for the offender at sentence was not optional. The Commonwealth DPP and counsel for the Commonwealth Attorney-General's Department both agreed that proceeding to sentence an unrepresented offender in these circumstances would be unfair.

Payne JA recounted the protracted history of the legal aid dispute, noting that identical difficulties had arisen before the trial commenced in 2021. On that earlier occasion, the Commonwealth DPP itself had successfully applied to vacate the trial on the basis that proceeding against an unrepresented accused would be fundamentally unfair. The Commonwealth eventually stepped in to fund the trial in May 2021, and intervened again in May 2022 when funding was threatened mid-trial.

His Honour expressed surprise and disappointment at the withdrawal, observing that the remaining cost of the sentencing hearing was modest by comparison with what had already been spent: approximately $37,000 for senior counsel and solicitor attendance and preparation, plus around $11,500 in disbursements. The withdrawal risked requiring new counsel to be briefed, which would exponentially increase costs to the community as incoming counsel would need to familiarise themselves with a year's worth of trial material.

Payne JA also emphasised that delay in sentencing undermines the general deterrence purpose of sentencing for serious tax fraud, and that the community has a legitimate and pressing interest in the sentence being imposed as soon as practicable. The matter was adjourned to 13 June 2023, with a warning that if legal representation had not been secured by then, the Court would consider whatever steps were available, however unpalatable.

Orders Made

  • Sentence proceedings stood over for directions to 13 June 2023 at 9:30am.
  • The Commonwealth DPP directed to supply these reasons to representatives of the Commonwealth Attorney-General's Department and Legal Aid NSW.

Key Takeaways

  • A sentencing hearing following a very serious criminal trial forms part of the "trial" for the purposes of the Dietrich principle, and the trial judge bears an obligation to ensure the offender is legally represented.
  • Where both the prosecution and the funding authority accepted that proceeding against an unrepresented offender would be unfair, the Supreme Court held that adjournment was the only available course.
  • The withdrawal of Commonwealth legal aid shortly before sentencing, after the Commonwealth had funded years of preparation and 173 days of trial, was found to risk substantial additional cost to the public through the potential need to brief new counsel.
  • Delay in sentencing for serious tax fraud offences directly undermines the general deterrence purpose of the sentence, a concern Payne JA described in terms consistent with his remarks when sentencing co-offenders.
  • The Court reserved the right to consider further, unspecified steps if legal representation was not obtained before the next directions hearing.

Legislation and Cases Referenced

Legislation
- Bail Act 2013 (NSW), s 50(1)

Cases
- Dietrich v The Queen (1992) 177 CLR 292; [1992] HCA 57
- R v Cranston (No 8) [2021] NSWSC 9
- R v Cranston (No 28) [2023] NSWSC 199
- Bar-Mordecai v Rotman [2000] NSWCA 123