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Court of Criminal Appeal 5 April 2024

Kapila v R

[2024] NSWCCA 48

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE NO DEMONSTRABLE ERROR APPEAL DISMISSED

Citation: Kapila v R [2024] NSWCCA 48
Court: Court of Criminal Appeal, New South Wales
Date: 5 April 2024
Judge(s): Harrison CJ at CL, Button J, Weinstein J (Weinstein J delivering the principal judgment, Harrison CJ at CL and Button J agreeing)

Background

The applicant pleaded guilty in the District Court to two offences: dealing with property worth over $1.2 million where there were reasonable grounds to suspect it was the proceeds of crime (count 1), and attempting to dishonestly obtain a financial advantage by deception of $2.5 million (count 2). At his own request, a further offence of knowingly participating in a criminal group was placed on a Form 1 document and attached to count 2. All three offences arose from the same period of large-scale money laundering activity.

The sentencing judge, O'Brien AM DCJ, imposed an aggregate term of 4 years and 6 months imprisonment with a non-parole period of 2 years and 6 months, after applying a 5% discount for late guilty pleas. Indicative sentences of 22 months (count 1) and 4 years including the Form 1 offence (count 2) were specified.

The applicant sought leave to appeal against sentence on a single ground: that the sentencing judge had impermissibly "double counted" the Form 1 offence. The applicant argued that the judge first used the Form 1 conduct to elevate the objective seriousness of count 1 (to which the Form 1 did not attach), and then separately used the same Form 1 offence to increase the sentence on count 2 (to which it did attach).

  • Whether the sentencing judge erred by taking the facts and circumstances of the Form 1 offence into account when assessing the objective seriousness of count 1, an offence to which the Form 1 did not attach.
  • Whether doing so, and then also applying the Form 1 to count 2, constituted impermissible double counting.
  • What weight, if any, should be given to exchanges between the Crown and the sentencing judge during the sentencing hearing when assessing whether error occurred.

Decision

The Court of Criminal Appeal granted leave to appeal but dismissed the appeal, finding no demonstrable error in the sentencing judge's approach.

Weinstein J confirmed the applicable principle: the facts and circumstances of a Form 1 offence may legitimately be considered in relation to a charged offence to which it does not attach, but only by way of context. A sentencing judge must not use those facts to increase the objective gravity of the offence to which the Form 1 does not attach. That line, the Court found, was not crossed here.

The Form 1 offending (knowingly participating in a criminal group) overlapped in time with both count 1 and count 2. The Court characterised it as "the yoke which united the charged offending," making some reference to it contextually unavoidable. On a fair reading of the remarks on sentence, his Honour had not actually elevated the objective seriousness of count 1 by reference to the Form 1 conduct. Critically, the applicant's counsel was unable to identify any specific passage in the sentencing remarks demonstrating that the judge had done so.

The Court also rejected the argument based on exchanges during the oral sentencing hearing. Relying on a judge's responses to propositions put in oral argument, rather than the formal remarks on sentence, is generally not a sound basis for identifying sentencing error. Additionally, the Court noted that the applicant himself had requested that the Form 1 offence be taken into account, and had agreed to the Form 1 attaching to count 2. He could not readily impugn an approach he had endorsed.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • A sentencing court may have regard to the facts of a Form 1 offence when considering a charged count to which it does not attach, but only to provide context, not to increase the objective gravity of that count.
  • No error was established here: the applicant's counsel could not point to any specific passage in the sentencing remarks demonstrating that the judge had actually elevated the seriousness of count 1 by reference to the Form 1 conduct.
  • Where Form 1 offending overlaps in time with multiple charged counts and provides the unifying factual context, ignoring it entirely when discussing those counts would produce artificial and disjointed remarks on sentence.
  • Exchanges between the Crown and a sentencing judge during oral argument are not a reliable basis for identifying error in sentencing; the formal remarks on sentence are the primary document for that purpose.
  • An offender who requests that a Form 1 offence be taken into account, and who endorses the procedural arrangement under which it attaches to a particular count, is in a difficult position on appeal when challenging that same arrangement as erroneous.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 93T, 192E(1)(b), 193C(1), 344A(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 25D(2), 32(1), 33(1)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Director of Public Prosecutions (NSW) v TH [2023] NSWCCA 81
- RL v R [2018] NSWCCA 274
- Ragg v R [2022] NSWCCA 150
- Singh v R [2021] NSWCCA 96
- RO v R [2019] NSWCCA 183
- Andrew Smith v R [2013] NSWCCA 209
- Dang v R [2014] NSWCCA 47
- Ahmad v R [2022] NSWCCA 144
- Lonsdale v R [2020] NSWCCA 267
- Mulato v R [2006] NSWCCA 282