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10
Court of Criminal Appeal 12 December 2002

R v Finnie [2002] NSWCCA 533 revised - 4

[2002] NSWCCA 533

Fraud & dishonesty
CRIMINAL LAW SENTENCING CROWN APPEAL FRAUD MULTIPLE OFFENCES FOUR SEPARATE INDICTMENTS

Citation: R v Finnie [2002] NSWCCA 533 revised - 4/03/2003
Court: NSW Court of Criminal Appeal
Date: 12 December 2002
Judge(s): Spigelman CJ, Dunford J, Howie J

Background

The respondent, a financial adviser, pleaded guilty to ten counts of serious fraud offences across four separate indictments, with seven additional fraud matters listed on Form 1s (matters taken into account at sentencing without separate conviction). The offences involved the systematic defrauding of multiple victims through false loan applications, forged documents, and misappropriation of invested funds, with total losses exceeding $636,000. Notably, the respondent changed his pleas to guilty on the first indictment only after a three-week trial had already run to the defence case.

The sentencing judge in the District Court imposed sentences of three years imprisonment (with an 18-month non-parole period) on the first two indictments, commencing January 2001. On the remaining two indictments, his Honour imposed two-year terms commencing July 2002, but suspended those sentences upon the respondent entering good behaviour bonds. The practical result was that the respondent walked free on the day of sentencing, subject to parole and the suspended sentences.

The Director of Public Prosecutions brought a Crown appeal under section 5D of the Criminal Appeal Act 1912, arguing the sentences were manifestly inadequate across multiple grounds.

  • Whether the suspended sentences imposed on the third and fourth indictments were permissible under section 12(2) of the Crimes (Sentencing Procedure) Act 1999, given the respondent was already serving a period of imprisonment at the time they were imposed
  • Whether the sentencing judge gave excessive credit for pre-sentence custody that was referable to other offences, not the offences being sentenced
  • Whether the sentencing judge failed to impose discrete sentences for each offence, as required by the principles in Pearce v The Queen
  • Whether the sentences failed to reflect the seriousness of the offending, the respondent's prior criminal record for similar offences, and the need for general and personal deterrence
  • Whether insufficient weight was given to the aggravating circumstance that the later offences were committed while the respondent was on bail and in breach of a Supreme Court order prohibiting him from engaging in financial dealings
  • Whether the discount for guilty pleas was excessive, given pleas were entered only after three weeks of trial
  • Whether the Form 1 offences and the respondent's apparent lack of remorse and failure to make restitution were given insufficient weight

Decision

The Court of Criminal Appeal allowed the Crown appeal and resentenced the respondent. The Court found multiple errors in the approach taken by the sentencing judge, each independently supporting the conclusion that the overall sentences were manifestly inadequate.

On the section 12(2) issue, the Court held that the suspended sentences were impermissible. Section 12(2) of the Crimes (Sentencing Procedure) Act 1999 prohibits a court from suspending a sentence of imprisonment if the offender is already subject to a sentence of imprisonment at the time of sentencing. As the respondent remained on parole under his earlier sentences when the third and fourth indictments were dealt with, the suspended sentences on those matters were not available.

The Court also found error in the treatment of pre-sentence custody. The time the respondent had spent in custody was largely referable to the earlier indictments and the related proceedings, not to the offences on the later indictments. Allowing it to reduce the sentences on the later indictments was not appropriate. Additionally, the sentencing judge had failed to impose discrete sentences for each individual offence as required by Pearce v The Queen, improperly treating multiple offences across indictments as if they could be packaged together without individual consideration.

The Court found the overall sentencing regime fell well short of what was required given the scale and nature of the fraud, the respondent's significant prior record for similar offending, the commission of further offences while on bail and in breach of a Supreme Court order, and the limited weight properly available to the late guilty pleas. On resentencing, the Court applied the totality principle with partial accumulation of sentences to arrive at an outcome that properly reflected the criminality involved.

Orders Made

  • Crown appeal allowed
  • Respondent resentenced

Key Takeaways

  • Under section 12(2) of the Crimes (Sentencing Procedure) Act 1999, a suspended sentence is not available where an offender is already subject to a sentence of imprisonment at the time of sentencing, including where that person is on parole.
  • The Court of Criminal Appeal confirmed that pre-sentence custody is only creditable against sentences for the offences to which that custody was actually referable; it cannot be applied to reduce sentences for different offences merely because they are dealt with at the same time.
  • Following Pearce v The Queen, a sentencing court must impose discrete sentences for each separate offence across multiple indictments, even where the totality principle is then applied to moderate the aggregate through partial accumulation or concurrency.
  • Guilty pleas entered only after several weeks of trial attract a materially reduced discount compared with early pleas; the Court treated the three-week trial before the respondent changed his plea as a significant factor limiting the credit available.
  • Offending committed while on bail and in breach of a Supreme Court restraining order is a serious aggravating circumstance that must be given meaningful weight in the sentencing exercise.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), ss 5D, 6(3)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 12(2), 24, 43, 47

Cases:
- Pearce v The Queen (1998) 194 CLR 610
- Veen v The Queen (No 2) (1988) 164 CLR 465
- R v Edigarov (2001) 125 A Crim R 551
- R v McHugh (1985) 1 NSWLR 588
- R v Hammoud [2000] NSWCCA 540
- R v Doresett [2002] NSWCCA 326
- R v Barton [2001] NSWCCA 63, 121 A Crim R 185
- R v Bavadra [2000] NSWCCA 292, 115 A Crim R 152
- R v SAE (CCA, unreported, 3 April 1997)
- Director-General of the Department of Fair Trading v Finnie & ors