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Court of Criminal Appeal 6 August 2025

Badaric v R

[2025] NSWCCA 117

Fraud & dishonesty
CRIME APPEALS APPEAL AGAINST SENTENCE FRAUD OFFENCES WHETHER THE ERROR WAS MATERIAL APPEAL ALLOWED

Citation: Badaric v R [2025] NSWCCA 117
Court: NSW Court of Criminal Appeal
Date: 6 August 2025
Judges: Price AJA, N Adams J, Sweeney J

Background

The applicant pleaded guilty in the Local Court to a range of fraud-related offences. These included possessing and using a false identity, obtaining personal financial information by installing card-skimming ("shimming") devices in ATMs, and dealing with the proceeds of crime totalling approximately $36,000. He was committed to the District Court for sentencing.

On 30 August 2024, the sentencing judge imposed an aggregate sentence of 4 years and 2 months imprisonment with a non-parole period of 2 years and 6 months, commencing 4 August 2023. A 25% discount was applied for the guilty pleas.

The applicant sought leave to appeal on the single ground that the sentencing judge made a factual error: she found there was no evidence of the quantum of a debt the applicant had been trying to extinguish through his offending, when unchallenged evidence of that amount was before the court.

  • Whether the sentencing judge erred by finding no evidence existed as to the quantum of the debt motivating the offending, when unchallenged evidence of that debt was in fact before the court.
  • Whether that factual error was material, in the sense that it had the capacity to influence the sentence.
  • Whether it was also open to find, adversely to the applicant, that the offending ceased only because of police detection and that the fraud had the capacity to cause significant financial harm.
  • On resentencing, whether the sentence for dealing with the proceeds of the applicant's own crimes should be concurrent with, or partially accumulated upon, the other sentences.

Decision

Ground 1(a): Factual error as to debt quantum
All three judges agreed that the sentencing judge erred. Unchallenged evidence of the amount of the debt existed before the court. Because the debt motivated the applicant's offending, the quantum of that debt was directly relevant to the assessment of objective seriousness, and the error had the capacity to influence the sentence.

Ground 1(b): Adverse findings on cessation of offending and harm
The Court accepted it was open to the sentencing judge to find the offending stopped only because of police arrest, and that the scheme had the capacity to cause significant financial damage to victims. However, the factual error under Ground 1(a) had the capacity to cause her Honour to take a more adverse view of the offending than was warranted, and the appeal was therefore allowed.

Resentencing: Proceeds of crime and the accumulation question
Neither party had addressed the Court on the authorities in Thorn, Nahlous, and Schembri, which bear on sentencing for dealing with the proceeds of one's own crime. This created a division between the judges. Sweeney J applied those authorities to conclude the proceeds of crime sentence should run concurrently, while Price AJA and N Adams J distinguished them on the facts: the applicant's conduct involved additional criminality beyond merely depositing or briefly holding money, including multiple domestic and international fund transfers. Price AJA and N Adams J held that, because there was some shared criminality, partial accumulation with proper regard to totality was appropriate, while full concurrency was not required.

The resentence
N Adams J, with Price AJA agreeing, imposed an aggregate sentence of 4 years imprisonment with a non-parole period of 2 years and 6 months, to date from 4 August 2023. General deterrence was treated as a significant factor. Sweeney J would have imposed a lower aggregate of 3 years and 6 months with a 2-year non-parole period, having applied full concurrency for the proceeds of crime count.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Aggregate sentence imposed in the District Court on 30 August 2024 quashed.
  • Applicant sentenced to 4 years imprisonment with a non-parole period of 2 years and 6 months, to date from 4 August 2023.

(Note: these orders reflect the majority position of Price AJA and N Adams J. Sweeney J would have imposed a lower sentence.)

Key Takeaways

  • A factual error at sentencing is material, and therefore capable of vitiating the sentence, where it concerned a matter directly relevant to the assessment of the objective seriousness of the offending, such as the motivation behind the crimes.
  • Where a defendant deals with the proceeds of their own offending through conduct that goes beyond a single incidental act (here, multiple domestic and international fund transfers), the dealing may constitute separate criminality warranting partial, rather than purely concurrent, sentencing.
  • The Court of Criminal Appeal distinguished Thorn, Nahlous, and Schembri on their facts, noting that the "highly technical" proceeds of crime cases those decisions addressed involved minimal additional criminal acts, unlike the more elaborate laundering conduct present here.
  • Under the principle in Kentwell v The Queen, an appellate court's power to resentence is engaged once a material error is established, even where some of the original adverse findings against the applicant were themselves open.
  • A sentencing court may make findings adverse to an offender, such as that offending ceased only due to police detection, provided those findings are supported by the evidence and are not tainted by another factual error that infected the overall assessment.

Legislation and Cases Referenced

Legislation
- Anti-Money Laundering and Counter-Terrorism Financing Act 2006 (Cth), s 136(1)
- Crimes Act 1914 (Cth), s 16A
- Criminal Code Act 1995 (Cth), ss 11.1(1), 372.2(1), 400.6(1), 480.4, 480.5(1)
- Foreign Passports (Law Enforcement and Security) Act 2005 (Cth), s 22(2)

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Thorn v R [2009] NSWCCA 294; (2009) 198 A Crim R 135
- Nahlous v R (2010) 77 NSWLR 463; [2010] NSWCCA 58
- Schembri v R [2010] NSWCCA 149
- Standen v DPP (Cth) [2011] NSWCCA 187; (2011) 254 FLR 467
- Subramaniam v R [2013] NSWCCA 159
- Kerr v R [2014] NSWCCA 235
- R v Dickson; R v Issakidis (No 1) [2014] NSWSC 1068
- Clarke v R [2019] NTCCA 2
- Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
- Newman (a pseudonym) v R [2019] NSWCCA 157
- R v Simpson (2001) 53 NSWLR 704; [2001] NSWCCA 534
- R v MA [2004] NSWCCA 92; (2004) 145 A Crim R 434
- GP (a pseudonym) v R [2021] NSWCCA 180