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Court of Criminal Appeal 24 September 2025

Wei v R

[2025] NSWCCA 150

Fraud & dishonesty

Citation: Wei v R [2025] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 24 September 2025
Judge(s): Leeming JA, Free JA, N Adams J

Background

The appellant was a client engagement officer with the Australian Taxation Office (ATO) who, between 2010 and 2022, engaged in a sustained course of serious corruption. The offending included accepting a $100,000 cash bribe from a taxpayer, then conducting an audit in a manner that dramatically understated that taxpayer's tax and GST liabilities (which should have been identified as exceeding $6.28 million). He also made unauthorised access to ATO restricted data on more than 1,700 occasions across two separate associates, and provided tax avoidance advice in exchange for benefits totalling over $56,000.

The appellant pleaded guilty to five Commonwealth offences: bribing a Commonwealth public official, three counts of unauthorised access to restricted data, and one count of abuse of public office. He was sentenced in March 2024 to an aggregate term of five years' imprisonment, with a non-parole period of two years and six months.

The appellant sought leave to appeal against that sentence on the grounds that the sentencing judge had made identifiable legal errors. A third ground was abandoned before the hearing, and an additional ground relating to contrition was added by leave during the proceedings.

  • Whether the sentencing judge erred by incorporating a reduction for the appellant's past cooperation with law enforcement within the 25% utilitarian discount already allowed for the early guilty plea, rather than treating them as distinct considerations.
  • Whether the sentence was manifestly excessive.
  • Whether the sentencing judge failed to take into account the appellant's contrition and remorse, as required by s 16A(2)(f) of the Crimes Act 1914 (Cth).
  • Whether, following the identification of sentencing error, a re-sentencing exercise produced a result warranting a lesser sentence.

Decision

Ground 1: Merging cooperation with the early plea discount

The Court upheld the first ground of appeal. On a fair reading of the sentencing remarks, the sentencing judge had acknowledged the appellant's cooperation with law enforcement as warranting some reduction in sentence, but had "incorporated" that reduction within the 25% already attributed to the early guilty plea. The Court held that merging these two distinct considerations in this way meant the cooperation discount was not separately brought to bear in the sentencing synthesis. This constituted error: past assistance and the utilitarian value of an early plea are separate matters, each requiring independent consideration.

Ground 2: Manifest excess

Because error in the sentencing process had already been identified, it was unnecessary to determine whether the sentence was also manifestly excessive. The identification of error in the approach triggered an obligation to re-sentence, rendering the second ground redundant.

Additional ground: Failure to consider contrition

The Court also upheld the additional ground. Section 16A(2)(f) of the Crimes Act 1914 (Cth) required the sentencing judge to take into account the degree to which the appellant had shown contrition. On a fair reading of the sentencing remarks, the judge had not done so. This was a further identifiable error in the sentencing process.

Re-sentencing exercise

Despite establishing error on two grounds, the appeal was dismissed. The Court undertook the required re-sentencing exercise, considering the undisturbed findings of the sentencing judge alongside the matters that had been overlooked, and taking into account additional evidence filed for re-sentencing purposes. All three judges independently concluded that a properly conducted re-sentencing would have produced an outcome more severe than the original sentence, principally because the bribery offence warranted a materially higher individual sentence than the indicative term identified at first instance. The Court also noted an unresolved question about whether aggregate sentences may lawfully be imposed for Commonwealth offences, and approached the exercise by considering individual sentences. Where re-sentencing would produce a harsher result, the established practice is to dismiss the appeal rather than impose a more severe penalty.

Orders Made

  • Leave granted under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
  • Appeal dismissed.

Key Takeaways

  • Past cooperation with law enforcement and the utilitarian discount for an early guilty plea are distinct sentencing considerations that must be brought to bear separately in the instinctive synthesis. Merging them within a single percentage discount constitutes identifiable sentencing error.
  • Under s 16A(2)(f) of the Crimes Act 1914 (Cth), a sentencing judge is required to expressly consider an offender's contrition. Failure to do so on the face of the sentencing remarks is a separate ground of error.
  • In dismissing the appeal, the Court applied the principle that, where a re-sentencing exercise reveals that the correct sentence would be more severe than the sentence already imposed, the practice is to dismiss the appeal rather than to impose a harsher penalty.
  • An unresolved question exists, noted at [73]-[74], as to whether aggregate sentences may lawfully be imposed for Commonwealth offences. The Court of Criminal Appeal considered it prudent in those circumstances to assess individual sentences when conducting a re-sentencing exercise.
  • Establishing sentencing error does not automatically produce a successful appeal. The Court of Criminal Appeal exercises an independent sentencing discretion afresh, and the outcome of that exercise may be the same or a greater sentence, in which case no lesser sentence is warranted in law.

Legislation and Cases Referenced

Legislation
- Crimes Act 1914 (Cth), s 16A
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A
- Criminal Appeal Act 1912 (NSW), ss 5(1)(c), 6
- Criminal Code 1995 (Cth), ss 141.1, 142.2, 478.1

Cases
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Pearce v R (1998) 194 CLR 610; [1998] HCA 57
- Siganto v The Queen (1998) 194 CLR 656; [1998] HCA 74
- Parker v Director of Public Prosecutions (1992) 28 NSWLR 282
- R v Cartwright (1989) 17 NSWLR 243
- R v Gallagher (1991) 23 NSWLR 220
- R v Stanbouli [2003] NSWCCA 355; (2003) 141 A Crim R 531
- R v Sukkar [2006] NSWCCA 92; (2006) 172 A Crim R 151
- Bae v R [2020] NSWCCA 35
- Patel v R [2022] NSWCCA 93
- Kilby v R [2023] NSWCCA 247
- Finnigan v R [2022] NSWCCA 181
- McGregor v R [2024] NSWCCA 200
- DG v R [2025] NSWCCA 137
- O'Hanlon v R (Cth) [2025] NSWCCA 118
- DS v R [2025] NSWCCA 53
- R v XX [2009] NSWCCA 115; (2009) 195 A Crim R 38
- R v Grossi (2008) 23 VR 500; [2008] VSCA 51
- Barbaro v The Queen [2012] VSCA 288; (2012) 225 A Crim R 354