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Court of Criminal Appeal 14 February 2025

Roulstone v R

[2025] NSWCCA 7

Fraud & dishonesty
CRIME APPEAL APPEAL AGAINST SENTENCE WHERE ERROR CONCEDED RESENTENCE

Citation: Roulstone v R [2025] NSWCCA 7
Court: NSW Court of Criminal Appeal
Date: 14 February 2025
Judges: Davies J, N Adams J, Yehia J

Background

The appellant pleaded guilty in the District Court to four counts of dishonestly obtaining a financial advantage under s 192E(1)(b) of the Crimes Act 1900 (NSW). The offending involved a sustained fraud against a single victim over 15 months in 2018 and 2019, totalling $4,808,000. The appellant had cultivated a friendship with the victim through a swimming school before making a series of false representations to extract funds under the guise of a business investment.

The original indictment contained 16 counts. However, 12 of those counts were placed on four Form 1 documents at the appellant's request, with only four counts remaining on the indictment. The four indictment counts related to just $1,341,000 of the total fraud, while the remaining $3,467,000 in criminality sat on the Forms 1.

The District Court imposed an aggregate sentence of 7 years and 6 months imprisonment, with a non-parole period of 5 years. On appeal, the appellant argued the sentencing judge had erred by using the Form 1 offences when assessing the objective seriousness of the four indictment counts, and had separately erred in his assessment of objective seriousness.

  • Whether the sentencing judge erred by having regard to the Form 1 offences when assessing the objective seriousness of the principal (indictment) counts
  • Whether the sentencing judge separately erred in his assessment of the objective seriousness of the principal offences
  • Whether any established error had the capacity to infect the sentence, warranting resentencing
  • What sentence was appropriate upon resentencing

Decision

The Crown conceded ground 1, acknowledging it was open to the Court of Criminal Appeal to find that the sentencing judge had impermissibly used the Form 1 offences in assessing the objective seriousness of the indictment counts. N Adams J accepted that concession and found the error had the capacity to infect the sentence, citing Benn v R [2023] NSWCCA 24. Because error was established, the Court was required to resentence the appellant afresh under the principles in Kentwell v The Queen (2014) 252 CLR 601.

Given her conclusion on ground 1, N Adams J found it unnecessary to determine ground 2 separately. On resentencing, the Court assessed the criminality pertaining to each of the four indictment counts individually, taking into account the Form 1 offences appropriately, that is, as matters that could increase the indicative sentence for each count but not as factors bearing on objective seriousness of the principal offences. The court found the Form 1 criminality was "substantial" within the meaning of the guideline judgment, permitting a significant uplift to each indicative sentence, though ultimately the appellant was being sentenced for less total criminality than if all 16 counts had remained on the indictment.

Davies J, with whom Yehia J agreed, added a pointed observation about the Crown's decision to place 12 of 16 counts on Forms 1. No explanation was offered by Crown counsel on appeal, and the approach was found to have breached the Prosecution Guidelines as well as the longstanding practice of including at least the first, worst and last offence on the indictment in fraud matters. Davies J noted that had the appellant been sentenced for all 16 counts directly, no lesser sentence than that originally imposed would have been warranted. The procedural structure adopted by the Crown effectively produced a lower sentence than the totality of the offending deserved.

Orders Made

  • Leave to appeal granted
  • Appeal allowed
  • The aggregate sentence imposed by Judge McGuire SC on 20 November 2023 is quashed
  • In lieu thereof, the appellant is sentenced to an aggregate term of 6 years and 6 months imprisonment, commencing 19 October 2022 and expiring 18 April 2029, with a non-parole period of 4 years and 3 months, commencing 19 October 2022 and expiring 18 January 2027
  • The appellant is referred to the Drug Court for determination of whether he should be the subject of a Compulsory Drug Treatment Order

Key Takeaways

  • A sentencing judge errs in law by using Form 1 offences to assess the objective seriousness of the principal indictment offences; Form 1 matters may increase an indicative sentence but cannot be used as a proxy measure of the gravity of the counts on the indictment.
  • Where that error has the capacity to infect the sentence, the Court of Criminal Appeal must resentence the offender afresh rather than merely adjusting the existing sentence.
  • The Court of Criminal Appeal confirmed the Crown's obligation, reflected in the Prosecution Guidelines, to structure indictments so that the counts on the indictment adequately reflect the full criminality of a course of conduct; placing the majority of charges on Forms 1 may distort the sentencing process and, as occurred here, produce a lower sentence than the overall offending warrants.
  • In resentencing, the court found the Form 1 criminality to be "substantial" within the meaning of the Form 1 guideline judgment, permitting a significant uplift to each indicative sentence, but acknowledged that sentencing was ultimately proceeding on a narrower factual basis than the total offending.
  • Davies J reiterated the principle from Attorney General's Application No 1 of 2002 that the administration of justice may be brought into disrepute where an offender is sentenced on a manifestly inadequate or artificial basis, emphasising the continuing relevance of proper indictment construction in fraud cases.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 32
- Criminal Appeal Act 1912 (NSW), ss 5, 6
- Director of Public Prosecutions Act 1986 (NSW)
- Drug Court Act 1998 (NSW), ss 5A, 18B
- Drug Court Regulation 2020 (NSW), reg 9

Cases:
- Attorney General's Application under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 1 of 2002 (2002) 56 NSWLR 146; [2002] NSWCCA 518
- Benn v R [2023] NSWCCA 24; (2023) 305 A Crim R 550
- Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
- Carroll v The Queen [2009] HCA 13; (2009) 83 ALJR 579
- DL v The Queen (2018) 265 CLR 215; [2018] HCA 32
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
- R v Henry (1999) 46 NSWLR 346; [1999] NSWCCA 111
- R v Pont (2000) 121 A Crim R 302; [2000] NSWCCA 419
- Tukuafu v R [2024] NSWCCA 84