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Court of Criminal Appeal 1 November 2024

Beck v R

[2024] NSWCCA 201

Fraud & dishonesty
CRIME APPEAL APPEAL AGAINST SENTENCE CONTEMPORANEOUS SENTENCES INCONSISTENT ORDERS PAROLE PERIOD

Citation: Beck v R [2024] NSWCCA 201
Court: Court of Criminal Appeal, New South Wales
Date: 1 November 2024
Judge(s): Basten AJA (with whom Dhanji J and Faulkner J agreed)

Background

The applicant pleaded guilty in the District Court to three offences arising from conduct between September and December 2022. Two offences were federal: modifying data via a carriage service to facilitate fraud (contrary to s 477.1 of the Criminal Code Act 1995 (Cth)), and obtaining and dealing in personal financial information without authority (contrary to s 480.4). The third offence was a State charge of dishonestly obtaining property by deception under s 192E of the Crimes Act 1900 (NSW), involving 12 victims and approximately $66,600 in fraudulent payments made using credit card and bank details obtained through the earlier conduct.

The applicant had a prior history of dishonestly obtaining financial advantages and was on an intensive correction order at the time of the offending. The sentencing judge in the District Court imposed an aggregate sentence of 22 months for the two federal offences, with a 14-month custodial period followed by an eight-month recognizance release order, and a separate sentence of 30 months (with a 15-month non-parole period) for the State offence.

The applicant sought leave to appeal against the sentences, primarily on grounds relating to the length of the terms imposed. While the Court rejected those specific grounds, it identified a structural problem in the sentencing exercise that required the sentences to be set aside and the applicant resentenced.

  • Whether the length of the sentences imposed by the District Court was manifestly excessive or otherwise in error on the grounds raised by the applicant.
  • Whether an aggregate sentence is available for federal indictable offences under State sentencing legislation picked up by s 68 of the Judiciary Act 1903 (Cth).
  • Whether the structure of the sentences, specifically the interaction between the federal recognizance release order and the State non-parole period, produced an inconsistency or legal error that required correction.
  • How concurrent State and federal sentences should be structured where a recognizance release order under federal law is set to operate during a State non-parole period.

Decision

The Court unanimously rejected the applicant's specific grounds of appeal relating to the length of his sentences. The sentencing judge had properly attended to the applicant's personal circumstances, the objective seriousness of the offending, and the need to avoid double punishment given the overlap between the conduct underlying the federal and State offences.

However, the Court identified a structural problem not raised by either party. The federal aggregate sentence commenced in December 2023, with the custodial period due to expire in February 2025, at which point the recognizance release order would take effect. The State sentence was set to commence in March 2024, with the non-parole period expiring in June 2025. This meant the recognizance release order, which imposed its own conditions on the applicant's liberty, was operating during the State non-parole period, when the applicant remained in custody under a separate obligation. The two regimes were in conflict.

Section 19AJ of the Crimes Act 1914 (Cth) prohibits a single non-parole period or recognizance release order from covering both federal and State offences. That constraint, combined with the distinct requirements of each regime, meant the original structure could not stand. The Court held that the sentencing exercise had miscarried because the recognizance release order was effectively rendered inoperative or inconsistent with the State sentence during the period of overlap.

To resolve the conflict, the Court restructured the sentences. The State offence received a fixed term of 15 months (with no non-parole period), and the federal aggregate sentence of 22 months was adjusted to commence after a revised date, with the recognizance release order taking effect from 14 June 2025 for a period of 15 months. This structure ensured the two regimes operated sequentially rather than concurrently in a contradictory fashion.

Orders Made

  • The sentences imposed in the District Court on 15 March 2024 were set aside.
  • For the State offence (sequence 7): a fixed term of 15 months' imprisonment, commencing 16 December 2023 and expiring 15 March 2025.
  • For the federal offences (sequences 2 and 3): an aggregate sentence of 22 months, commencing 15 November 2024 and expiring 14 September 2026, with a direction under s 20(1)(b) of the Crimes Act 1914 (Cth) that the applicant be released on 14 June 2025 upon giving security of $1,000 (without surety), on condition of good behaviour for 15 months until 14 September 2026, and on the following further conditions:
  • Supervision by a Community Corrections Officer
  • Reporting to the Community Corrections Office within 7 days of release
  • Compliance with all reasonable directions of the Community Corrections Officer
  • No interstate or overseas travel without the written permission of the probation officer

Key Takeaways

  • An aggregate sentence is available for federal indictable offences by operation of s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW) picked up through s 68 of the Judiciary Act 1903 (Cth), consistent with the High Court's reasoning in Putland v The Queen and confirmed by the Court of Criminal Appeal in DPP (Cth) v Beattie.
  • Under s 19AJ of the Crimes Act 1914 (Cth), a court cannot make a single non-parole period or recognizance release order that covers both federal and State offences; each regime must operate separately.
  • Where a federal recognizance release order is set to take effect during a State non-parole period, the two regimes conflict, and the sentencing structure miscarries even if the individual sentence lengths are otherwise unimpeachable.
  • The Court of Criminal Appeal corrected the structural error by imposing a fixed term for the State offence and adjusting the commencement date of the federal aggregate sentence so that the recognizance release order operated after, rather than during, the period of State custody.
  • The applicant's specific grounds of appeal (challenging sentence length) were rejected; the resentencing arose entirely from a structural inconsistency identified by the Court itself, not from any error in the primary sentencing judge's assessment of the offending or the offender's circumstances.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), s 192E
- Crimes Act 1914 (Cth), ss 4K, 16E, 19, 19AB, 19AC, 19AJ, 20, Pt 1B
- Crimes (Administration of Sentences) Act 1999 (NSW), s 158
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 47, 53A
- Criminal Code Act 1995 (Cth), ss 477.1, 480.4
- Judiciary Act 1903 (Cth), s 68
- Mental Health and Cognitive Impairment Forensic Provisions Act 2020 (NSW), s 14

Cases
- Putland v The Queen (2004) 218 CLR 174; [2004] HCA 8
- Director of Public Prosecutions (Cth) v Beattie [2017] NSWCCA 301; 270 A Crim R 556
- Kannis v R [2020] NSWCCA 79
- Rizeq v Western Australia (2017) 262 CLR 1; [2017] HCA 23
- Director Public Prosecutions (Cth) v Swingler [2017] VSCA 305; 269 A Crim R 526
- Mercanti v The Queen [2011] WASCA 120; 249 FLR 223
- Mill v The Queen (1988) 166 CLR 59; [1988] HCA 70