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[2007] NSWCCA 202
Court of Criminal Appeal (NSW)
2007-06-21
Beazley JA, Grove J, Simpson J
Original judgment source is linked above.
The application for leave to appeal against sentence 41 On behalf of the applicant it was contended that: "In their own right the sentences were too severe." 42 Heavy reliance was placed upon the circumstance that no loss was occasioned (by the two transactions in which the applicant was involved) to Scottish Pacific; that the applicant neither sought nor received any benefit from the transactions; and that the applicant was not shown to have been aware of the larger scheme being operated by the Gomes brothers. It was contended that error could be shown in the assessment of the objective criminality of the applicant as being "in the high range of seriousness". The final of these (no loss to Scottish Pacific) was contrary to an express statement contained in the agreed facts and was the subject of express rejection by his Honour. 43 Also challenged was the finding that all those involved: "… were hand in glove with one another and were fully aware in all presently relevant respects of why Smartpak was raising the sham invoices …"
This, it was argued, infected the sentencing process because the applicant was sentenced on an erroneous assessment of his objective criminality. 44 A parity argument was also advanced, although this is more properly characterised as a "disparity" argument - the contention being that the criminality of the Gomes brothers was so significantly greater than that of the applicant that the sentences imposed ought to have themselves contained a greater element of disparity. It was pointed out that the total sentence imposed upon the applicant amounted to approximately one-third of the total of those imposed upon the Gomes brothers. It may here be observed that they pleaded guilty as principals to 12 charges of offences carrying maximum penalties of 10 years' imprisonment, involving an elaborate (though remarkably foolish) scheme, together with acknowledging their guilt of another 62 such offences. This suggests that there is considerable merit in this aspect of the application. 45 Complaint was also made of the disparity in the discounts allowed in relation to the pleas of guilty. This, too, is well made. 46 A further complaint was made concerning the application of the finding of special circumstances which, it was argued, was not fully implemented in the result. Finally, it was argued that his Honour failed to consider assessment of the applicant for suitability for alternatives to fulltime imprisonment, such as suspension of the sentences, or service of the sentence imposed by home detention. There is merit in all of these complaints. 47 This court experienced significant concern about a number of aspects of the proceedings. I have extracted, in full, one of the charges against the applicant. It alleges that he was accessory to the defrauding (that is, actual defrauding) of Scottish Pacific by the Gomes brothers. That defrauding, it was alleged, occurred in respect of a discrete transaction in which three false invoices were provided to Scottish Pacific. The second charge was in relevantly identical terms. It is true that the statement of facts - agreed on behalf of the applicant - expressly asserted that Scottish Pacific had suffered a very significant - $1.3 million loss: "… as a result of the alleged fraud committed by the directors of Smartpak and the customers identified as being involved in the fraud ." (emphasis added)
and that: "… the actions of [the applicant] assisted the directors of Smartpak to maintain the fraud." 48 These, however, were general statements about the scheme operated by the Gomes brothers. The applicant was charged with two specific offences referable to two specific transactions. The evidence (in the Gomes/Baldini proceedings) clearly established that, in respect of these transactions, Scottish Pacific suffered no loss. 49 "Defraud" is not defined in the Crimes Act. However, it has been the subject of judicial consideration on a number of occasions. Some of the authorities are referred to in Howie and Johnson: Criminal Practice and Procedure NSW, LexisNexis Butterworths 1998 at pp 116, 626 in the notes to s 176A of the Crimes Act. In my opinion to "defraud" necessarily imports a loss to the victim of something of value. I acknowledge that the loss may be intangible, although, it must, in my opinion, at best involve prejudice to the victim's "proprietary rights" (R v Negline (NSWCCA, 5 December 1990)). 50 Here, the evidence failed to establish that Scottish Pacific was deprived or defrauded of anything in respect of the transactions in which the applicant was involved. There was therefore no "defrauding" of Scottish Pacific. But this was an essential element of each offence charged. 51 This conclusion raises an awkward question for this court. In my opinion, based on the evidence presented to Mahoney ADCJ, the prosecution did not establish that either principal offence (defrauding Scottish Pacific by the Gomes brothers) had been committed. Axiomatically it did not establish that the applicant was an accessory to either of those offences. 52 The awkward question thus raised is whether the pleas of guilty ought to have been rejected. 53 The applicant was legally represented and entered pleas of guilty to both charges. It would have been open to the judge to reject the pleas, but this he does not appear to have contemplated. The transcript of the sentencing proceedings makes it clear that the applicant's counsel strenuously pressed for the pleas to be maintained. He did not want to become involved in a lengthy and expensive process of seeking leave to withdraw his pleas or having rejection of the pleas imposed upon him. This is entirely understandable. The evidence did establish that the applicant was involved in some wrongdoing. He undoubtedly assisted the Gomes brothers in a deceitful enterprise as a result of which Scottish Pacific eventually suffered significant losses. Had he been charged, for example, with being an accessory to an offence of obtaining a benefit by deception (s 178BA, itself punishable by imprisonment for five years, and therefore a serious indictable offence), his pleas would have been quite appropriate. 54 But that does not mean that the judge is obliged to sentence on the basis of the applicant's accessorial liability to a serious fraud in the absence of adequate evidence as to the nature and extent of the fraud. It is inescapable, in my opinion, that the applicant was sentenced on the basis that he bore or shared, responsibility for the loss of $1.3 million ultimately suffered by Scottish Pacific as a result of the conduct of the Gomes brothers. In fact, on the basis of the charges to which he pleaded guilty, he bore no responsibility for any loss. 55 In my opinion, what his Honour did was to characterise the applicant's participation in two discrete transactions as participation in what might properly be called a conspiracy, or an overall scheme or enterprise. But that was not the charge brought against him. 56 In my opinion it was not open to the judge to sentence the applicant as he did. The evidence was simply deficient and failed to establish any criminality relevant to the charge brought. 57 It is for these reasons that I joined in the orders made. **********
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Bikhit
Regina
CITATION: Bikhit v Regina [2007] NSWCCA 202
CASES CITED: R v Negline (NSWCCA, 5 December 1990) R v Thomson; R v Houlton [2000] NSWCCA 309; 49 NSWLR 383