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Court of Criminal Appeal 8 May 2024

Baydoun v R

[2024] NSWCCA 65

Fraud & dishonesty
CRIME APPEALS APPEALS AGAINST SENTENCE STATE AND COMMONWEALTH FRAUD RELATED OFFENCES ALLEGED ERRORS ESTABLISHED

Citation: Baydoun v R [2024] NSWCCA 65
Court: NSW Court of Criminal Appeal
Date: 8 May 2024
Judges: Wilson J, Chen J, Huggett J

Background

The appellant pleaded guilty in the District Court to nine Commonwealth and State fraud-related offences. These included dishonestly dealing in personal financial information affecting 50 victims across 40 bank accounts, using a carriage service to menace, contravening a court order requiring provision of a device password (under s 3LA of the Crimes Act 1914 (Cth)), and six counts of dishonestly obtaining financial advantages by deception totalling more than $160,000.

The District Court sentenced the appellant to two aggregate terms: a fixed term of 1 year and 3 months for the Commonwealth offences, followed by a term of 2 years and 3 months with a 12-month non-parole period for the State offences. The combined effective sentence was 3 years and 3 months imprisonment.

The appellant sought leave to appeal against the sentence for count 3 (the s 3LA(6) offence). During proceedings, the Crown also identified two errors in the sentence that operated against the Crown's own position.

  • Whether the sentencing judge failed to assess the objective seriousness of the offending for count 3
  • Whether the sentencing judge failed to provide adequate reasons for the indicative sentence of 12 months imposed for count 3
  • Whether the sentencing judge failed to account for three days of pre-sentence custody when fixing the commencement date of the State offence sentence
  • Whether the sentencing judge erroneously applied a 15% discount for the early guilty plea to both the Commonwealth and State offences, rather than the mandatory 10% discount prescribed by s 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW) for the State offences

Decision

The Court found that the sentencing judge made no finding at all about the objective seriousness of count 3. The Crown's argument that there was an "implied" finding based on a common position between the parties was rejected, as was any suggestion that the judge had sufficiently "engaged" with the objective features of the offence so that a proper assessment could be inferred.

The absence of any reasons for the indicative 12-month sentence on count 3 was held to constitute a clear failure to provide legally sufficient reasons. These two grounds of appeal were therefore established.

The Court also accepted the two errors raised by the Crown. The failure to account for three days of pre-sentence custody was characterised as an arithmetical error that did not independently require a full re-exercise of sentencing discretion. The application of a 15% discount to both sets of offences was, however, erroneous: for the State offences, the appellant was entitled only to the mandatory 10% discount under the relevant statutory provision, with no basis established for a higher figure.

Having re-exercised the sentencing discretion, the Court concluded that no lesser indicative or aggregate sentences were warranted in law for either the State or Commonwealth offences. The sentences were confirmed, with the sole variation being a correction to the commencement date of the State offence sentence to properly account for pre-sentence custody. The Court also noted that, consistent with its usual practice in the absence of a Crown appeal, it did not impose the more severe sentence that the erroneous 15% discount had produced.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The aggregate sentences passed in the District Court are confirmed, but the sentence for the State offences (counts 4 to 9) is directed to commence on 24 February 2024, with the non-parole period expiring on 23 February 2025 and the sentence expiring on 23 May 2026

Key Takeaways

  • A sentencing judge must make an express finding on the objective seriousness of each offence being sentenced; an implied or inferred finding will not suffice where there is no agreed position between the parties and no evident engagement with the relevant objective features.
  • Legally sufficient reasons are required for an indicative sentence: the complete absence of reasons for a 12-month indicative term constituted clear error.
  • Under s 25D(2)(b)(i) of the Crimes (Sentencing Procedure) Act 1999 (NSW), an offender who pleads guilty at the relevant stage is entitled to a mandatory 10% discount; a higher discount requires a factual foundation that must be established at sentencing.
  • Failing to account for pre-sentence custody when fixing a commencement date is an arithmetical error correctable on appeal, but does not by itself compel a full re-exercise of sentencing discretion.
  • Where errors in a sentence are unfavourable to the Crown but the Crown has filed no appeal, the Court of Criminal Appeal will not ordinarily impose a more severe sentence even if one might otherwise be warranted.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E
- Crimes Act 1914 (Cth), ss 3LA, 3LA(6)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 3A, 25D, 47(2), 47(3), 68(2)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c), s 6(3)
- Criminal Code Act 1995 (Cth), ss 474.17(1), 480.4

Cases:
- Almaouie v R [2021] NSWCCA 274
- Betts v The Queen (2016) 258 CLR 420
- Black v R (2022) 107 NSWLR 225
- Christian v R [2021] NSWCCA 300
- Delaney v R (2013) 230 A Crim R 581
- DL v The Queen (2018) 265 CLR 215
- Doyle v R (2022) 108 NSWLR 1
- Flaherty v R; R v Flaherty (2016) 92 NSWLR 290
- Giles-Adams v The King (2023) 377 FLR 426
- Hildebrand v R (2021) 387 ALR 271
- Hurt v The King [2024] HCA 8
- Ilic v R (2020) 103 NSWLR 430
- Kentwell v The Queen (2014) 252 CLR 601
- Markarian v The Queen (2005) 228 CLR 357
- Muldrock v The Queen (2011) 244 CLR 120
- R v Cage [2006] NSWCCA 304