Carnaby v R - [2022] NSWCCA 250 - NSWCCA 2022 case summary — Zoe

NSWNSWCCA

Carnaby v R

[2022] NSWCCA 250

Court of Criminal Appeal (NSW)|2022-11-09|Before: Button J, Fagan J, Hulme AJ, Adamson J, McCallum JA, Davies J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2022-11-09

Before

Button J, Fagan J, Hulme AJ, Adamson J, McCallum JA

Catchwords

Jones v The Queen [2010] HCA 45
(2010) 242 CLR 520 House v The King (1936) 55 CLR 499 JM v R [2014] NSWCCA 297
(2014) 246 A Crim R 528 Khoury v R [2011] NSWCCA 118 Mulato v R [2006] NSWCCA 282 Nguyen v The Queen (2016) 256 CLR 656
[2016] HCA 17 Obeid v R (2018) 96 NSWLR 155 Osman v R [2020] NSWCCA 78 R v Giam (No 2) [1999] NSWCCA 378

Source

Original judgment source is linked above.

Catchwords

Jones v The Queen [2010] HCA 45(2010) 242 CLR 520 House v The King (1936) 55 CLR 499 JM v R [2014] NSWCCA 297(2014) 246 A Crim R 528 Khoury v R [2011] NSWCCA 118 Mulato v R [2006] NSWCCA 282 Nguyen v The Queen (2016) 256 CLR 656[2016] HCA 17 Obeid v R (2018) 96 NSWLR 155 Osman v R [2020] NSWCCA 78 R v Giam (No 2) [1999] NSWCCA 378

Judgment (22 paragraphs)

[1]

JUDGMENT

BUTTON J: I agree with R A Hulme AJ.
FAGAN J: I agree with R A Hulme AJ, including that the Court should not receive the evidence referred to at [81] in his Honour's judgment.
R A HULME AJ: Mr Raymond Carnaby applies for leave to appeal in respect of an aggregate sentence imposed in the District Court at Sydney on 22 May 2020 by her Honour Judge O'Rourke SC.
The sentence was one of imprisonment for 9 years with a non-parole period of 5 years 5 months and it was in respect of 19 offences for which the applicant had been found guilty by a jury.
There were 15 offences of dishonestly obtaining a financial advantage by deception and four offences of recruiting another to assist in carrying out criminal activity. These are offences contrary to ss 192E(1)(b) and 351A(1) of the Crimes Act 1900 (NSW) for which there is a maximum penalty of imprisonment of 10 years and 7 years respectively.

[2]

The offences

Adamson J, with whom McCallum JA and Davies J agreed, introduced the conviction appeal judgment with the following pithy summary of the case: "[3] The Crown case … was, in substance, that the applicant was involved in applying for finance for himself and third parties to purchase luxury motor vehicles and that such applications were made on the basis of false documents which were submitted to obtain finance. The nature and details of the transactions and that they were fraudulent were the subject of agreed facts tendered pursuant to s 191 of the Evidence Act 1995 (NSW). The principal issue was the applicant's involvement in the transactions and whether he was dishonest."
A very detailed summary of the evidence followed in the conviction appeal judgment at [4]-[112].
It is convenient to note also the following summary provided in the Crown's written submissions in this Court: "[4] The offences were committed between 2013 and early 2016, during which the applicant caused a number of 3rd parties to lodge false documentation with finance companies to secure loans for the purchase of luxury vehicles. The total value of the fraudulently procured loans was $2.56 million. The total loss suffered by the finance companies was $2.29 million. The facts underlying each of the fraud counts were substantially similar. The fraud involved lodging false tax returns and other false documents overstating the income of the borrower. The Crown case was that the applicant had provided the false financial information, which was then submitted to finance companies. In relation to counts one to 5, 7, and 12 to 16 the Crown relied on a joint criminal enterprise between the applicant and the individual who had made the loan application. … The applicant did not dispute at trial the falsity of the information provided, but said that at the relevant time, he had no knowledge that the documentation was false and that it had not been provided by him."
The judge reviewed the facts relating to each offence and then discussed her assessment of their objective seriousness. She considered that the motivation for the offending was "a combination of greed, gambling and for the maintaining of his perceived appearance, status, or self-promotion directed to those within the community and his own family". [1] Her conclusion was as follows: [2] "It was the Crown's overall submission that in light of the frauds, which totalled approximately $2.56 million in relation to the terms of credit obtained, and $2.29 million in terms of loss to the victims and corporate victims; the number of victims; the ongoing nature of the offending; the significant planning and sophistication; the duration of the offending; that most of the monies will be irrecoverable; the motivation, it was submitted, by greed; and the duping of 3rd parties in relation to Yassin, Younes and Nouh, (care must be taken not to double count). The overall objective seriousness, it was submitted, of the criminality was very serious. Ms Gallagher of counsel, on behalf of the offender, agreed with the global assessment of the objective seriousness by the Crown. Considering all matters relevant to the objective gravity of the offences before the court I have determined that the offending falls slightly above mid-range of offending for counts 9, 11 and 20 and at mid-range for the remaining counts."
Counts 9, 11 and 20 were recruitment offences against s 351A(1) involving Ms Afaf Yassin, Mr Mohamed Younes and Ghada Nouh, the innocent third parties "duped" by the applicant into to being the purported applicants for credit.
The following table provides a summary of each count with the finding of objective seriousness and the indicative sentence assessed by the primary judge. For brevity, the offences of obtaining a financial advantage by deception are indicated by s 192E(1)(b). The offences are grouped by the documents containing false financial information and the purported applicant for credit. Count Offence Objective seriousness Indicative sentence Precious Metals and Gems Pty Ltd and Mahdine Obeid 1 192E(1)(b) Mid-range 2 years 8 months Credit of $124,589 (Audi Q7 NBP24T) 2 192E(1)(b) Mid-range 2 years 8 months Credit of $124,589 (Audi Q7 NBP24S) 3 192E(1)(b) Mid-range 2 years 8 months Credit of $146,972 (Audi Q7 NBP51F) 4 192E(1)(b) Mid-range 2 years 8 months Credit of $252,247 (Audi A8 NBP51E) 5 192E(1)(b) Mid-range 2 years 8 months Credit of $39,254 (Audi A1 CPD62U) 7 Recruit Mahdine Obeid to assist carrying out criminal activity (fraud) Mid-range 2 years Impact Quality Flooring Pty Ltd and Afaf Yassin 8 192E(1)(b) Mid-range 3 years Credit of $235,839 (Mercedes Benz E63 COU71S) 9 Recruit Afaf Yassin to assist carrying out criminal activity (fraud) Slightly above mid-range 2 years 3 months MKY Enterprises Pty Ltd and Mohamad Younes 10 192E(1)(b) Mid-range 3 years 6 months Credit of $375,405 (Audi R8 NBR01J) 11 Recruit Mohamad Younes to assist carrying out criminal activity (fraud) Slightly above mid-range 2 years 6 months Consec Personnel Pty Ltd and Mohamad Bannout 12 192E(1)(b) Mid-range 3 years Credit of $120,000 (Jaguar XF CVH82U) 13 192E(1)(b) Mid-range 3 years Credit of $53,015 (Ducati motorcycle BQJ43 14 192E(1)(b) Mid-range 3 years Credit of $121,582 (Mercedes Benz C63 CIO19E) El-Sayed Transport Pty Ltd and Hassan El Sayed 15 192E(1)(b) Mid-range 3 years Credit of $232,145 (Bentley coupe (CWK54B) 16 192E(1)(b) Mid-range 3 years Credit of $100,397 (Jeep Cherokee CWZ64E) Global Wealth Strategies Pty Ltd and Ghada Nouh 17 192E(1)(b) Mid-range 3 years 4 months Credit of $92,819.30 (Jeep Cherokee CYB45A) 18 192E(1)(b) Mid-range 3 years 4 months Credit of $300,000 (Porsche YDG42C) 19 192E(1)(b) Mid-range 3 years 4 months Credit of $128,900 (Landrover CRT49F) 20 Recruit Ghada Nouh to assist carrying out criminal activity (fraud) Slightly above mid-range 2 years 6 months

[3]

The applicant's subjective case

The learned judge reviewed the evidence concerning the applicant's subjective case in some detail. She made findings on many aspects including the following.
The applicant had a criminal record which included previous convictions for very similar offences of dishonesty although the judge noted they were committed some years ago. She said: "the record, whilst limiting the leniency to be applied, is not regarded for these purposes as an aggravating factor". [3]
There was evidence that the applicant gambled significantly but the judge noted that he disavowed any addiction and made no claim for any causal connection between that and his offending. [4]
The applicant was aged 68 at the time of sentencing and the offences were committed when he was aged between 61 and 64. [5]
The judge noted that "the offender clearly has physical health issues". They included chronic back pain and reported medical complications with his right groin, vocal cord, left shoulder, abdominal wall, and scrotum. She referred to and appeared to accept evidence to the effect that there was a capacity to treat the various issues in the custodial environment. [6]
Her Honour also had regard to then recent outbreak of the COVID-19 pandemic and concluded that it had "made conditions in custody more onerous (at least for a time), for the offender because of measures introduced to control outbreaks which increase the offender's anxiety and the level of stress in the light of his medical conditions and his comorbid vulnerability. … Notwithstanding the efficient and sustained effort (which has clearly proved successful so far) on the part of Corrective Services the risks are real and are likely to engender anxiety and fear in the offender". [7]
The judge noted that there was no evidence of any real genuine remorse. [8]
As to hardship to others, she said: "it appears his wife is unwell and he cares for her. I also note, however, that they have two adult children that will need to assist. I do not consider this to be an exceptional circumstance." [9]
Her Honour said, "I am guarded about the offender's prospects of rehabilitation. [10]
Special circumstances were found for the purposes of s 44(2B) of the Crimes (Sentencing Procedure) Act 1999 (NSW). They were: "the offender's advanced age, his ill-health and the COVID-19 pandemic, which will all make his time in custody more onerous". [11]

[5]

Ground 1 - error in finding that the offending was aggravated as it was "in company". [13]

The applicant contends that the judge erred in finding that the offending was aggravated because it was "in company". No submission in writing was made as to why this might have been so except for the assertion that there were no grounds upon which the finding could be made. In oral submissions, the applicant argued that there could be no "in company" if the other person was an "innocent agent" or "innocent stooge". [14]
In the course of discussing the applicant's subjective case in her remarks on sentence, her Honour diverted to discuss various aggravating and mitigating features, both objective and subjective. She referred to the Crown having submitted that "the offending is aggravated by being in company as a joint criminal enterprise (as for counts 1 to 5, 12 to 14, 15 and 16), or employing innocent agents (as counts 8, 10 and 17 to 19)". [15] The latter were the offences involving Ms Yassin, Mr Younes and Ms Nouh.
Her Honour proceeded to say that she was satisfied that counts 1 to 5, 12 to 14, 15 and 16 (none of which involved the three people just mentioned) were committed in company as part of a joint criminal enterprise. However, those that were committed with "a duped third party" were not so aggravated because her Honour was concerned about double counting with the fact that there were recruiting charges for which the applicant stood to be sentenced. [16] This is the answer to the point raised by the applicant at the hearing.
There is nothing erroneous in her Honour's reasoning. The offence of dishonestly obtaining a financial advantage can be committed by a single person. In other words, it is not an element of the offence, nor an inherent characteristic, that multiple persons are involved. In relation to counts 1 to 5, 12 to 14, 15 and 16 the offence was committed by more than one person. This was a feature that rendered the offence more serious. It added an aura of legitimacy to the transaction, thereby enhancing the degree to which the victims were deceived.
No error is established.
There is a related complaint. The applicant expressed concern about the fact he was not present at court during the sentencing hearing on 27 March 2020. He was on bail. It is to be recalled that this was during the initial lockdown period in the COVID-19 pandemic. Ms J Gallagher of counsel appeared for the applicant and the transcript for that day commenced as follows: [17] "AUDIO VISUAL LINKS COMMENCED AT 2.08PM HER HONOUR: Ms Gallagher, as I indicated, thank you for the emails, but in light of your client's age, medical conditions and the like, I did not want him dragging himself into the city. So I assume that he consents and is happy for this to proceed in his absence. GALLAGHER: He is, your Honour, yes. And obviously I'll be, you know, reporting back to him this afternoon, together with my instructing solicitor, Ms Richardson. She isn't present, your Honour, but we will be speaking with him, yes."
The applicant observed in his submissions to this Court that he "had no idea as to why would his counsel agree to the aggravation, seriousness and in company". [18]
I do not understand the point of this complaint. Counsel did not expressly make such a concession about the "in company" issue. Whilst it is true she did not challenge the Crown's submission that "the offences are objectively very serious", the seven reasons provided by the Crown for this submission did not include that the s 192E(1)(b) offences were committed "in company". [19]

[6]

Ground 2 - error in the assessment of the objective seriousness of the offences. [20]

The applicant submitted that the judge wrongly determined the objective seriousness of the offences. She made a global assessment of the seriousness of the offending without proper analysis of the objective seriousness of the individual offences. She did not consider or compare the very similar, if not identical, facts of each of the offences which were relevant to objective seriousness.
Reference was made to R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348 at [27] where Dunford J noted how seriously the courts treat white-collar crime, and offences under s 176A in particular, as it involves not only fraud but also the breach of the trust involved in being a company director. (Section 176A, since repealed, provided for an offence of company directors cheating or defrauding the company or anyone in their dealings with the company.)
The applicant pointed to the fact that he was not a director or had any executive authority and so should not be treated as a person who has betrayed the trust of his office. However, whilst acknowledging his wrongdoing, he then set out reasons why blame should be cast upon the victim credit providers for failure to do their own due diligence.
As the Crown has pointed out by reference to well-known authority (e.g. Mulato v R [2006] NSWCCA 282) there are difficulties involved in challenging findings by a sentencing judge as to the objective seriousness of an offence. It is necessary to establish error in the ways described in House v The King (1936) 55 CLR 499 at 505.
The factors the judge considered in her assessment of the objective seriousness of the offending were most of those which had been identified in submissions by the Crown (which were not challenged) as to the overall offending: [21] Total amount of the defrauding and the amount lost by victims. Number of victims. Ongoing nature of the offending. Significant planning and sophistication. Duration of the offending. Most of the moneys were irrecoverable. Motivation.
The judge carefully considered the individual offences within their logical groups. [22] In the course of this exercise she referred to factors such as: Role played by the applicant (including that he was the instigator). Nature of the false documentation used. Vehicles obtained were expensive and luxurious. Value of the credit obtained in respect of individual counts. Whether the vehicles or money had been recovered. Whether the applicant or others were known to have used the vehicles. Whether the third party was an unwitting assistant or not; and if so, the degree of callousness and consequences they suffered.
There were similarities between the facts of the offences, for example in planning and modus operandi, which allowed the judge to avoid repetition in her recitation of the relevant factors for some of the groups of offences.
The Crown submitted that there was no error and that the findings of the judge as to the objective seriousness of the offences were well open in light of the factors she considered. The Crown also noted the concession made in oral submissions by the applicant's counsel, agreeing with the Crown's submission that all of the offences were objectively "very serious". [23]
There is no merit in the applicant's contention that she did not make a proper analysis or did not consider similarities of features.

[9]

Ground 5 - the judge erred in her assessment of the applicant's subjective case. [28]

This "ground" is assumed to incorporate the applicant's complaint under the previous ground. In addition, there is a complaint that the judge gave "wrong consideration to the subjective circumstances of the applicant" in which respect he nominated errors in her assessment of reliability, remorse and prospects of rehabilitation.
The latter proposition was based upon the error the subject of complaint under the previous "ground". The applicant submitted that while the judge did not reject all that was put forward on his behalf, "it did not auger [sic] well in terms of findings such as remorse and prospects of rehabilitation due to making up her mind to impose the maximum punitive sentence on the appellant, irrespective of any argument put on his behalf".
At the hearing of the application, it was submitted that the judge was "wrong in saying the prospects of my rehabilitation is weak because of my prior conviction" because it was 20 years in the past. [29] (He was convicted and sentenced for making a false statement to obtain money in the District Court at Campbelltown on 9 August 1999 and obtaining money by deception in the Local Court at Sutherland on 24 June 1999. [30] )
A report by Mr Patrick Sheehan, forensic psychologist, dated 11 February 2020 was tendered on the applicant's behalf in the sentence proceedings. The report included: [31] "During interview Mr Carnaby denied any wrong-doing, consistent with his plea. He promoted the view that his charges were the result of corrupt policing and false statements."
A Sentence Assessment Report included: [32] "Mr Carnaby agreed with the police facts but cited ignorance and did not think his actions were wrong at the time of his offending. He now accepts his behaviour was wrong whilst stating he thought he was performing a duty in good faith. He denied recruiting any person to carry out criminal activity."
The Crown submitted to the judge: "[T]he court would not find that the offender is unlikely to reoffend …, nor that he has good prospects of rehabilitation …. The offender continues to deny the offences and has shown no remorse". [33]
Counsel for the applicant conceded that "he hasn't shown any remorse. Obviously, he maintains his innocence." [34] She made no submissions on the subject of rehabilitation.
The judge's findings in relation to remorse and prospects of rehabilitation were: [35] "In relation to the question of remorse, to my mind there is simply no evidence of any real genuine remorse, indeed, quite to the contrary. … In relation to his prospects of rehabilitation, he has prior convictions for very similar offending. He has demonstrated very little insight into his offending, and I note that although he is married with adult children he has kept the charges, the trial and the sentencing proceedings from them. Indeed, it appears that he has told no one of these proceedings, which is quite extraordinary in itself. Whilst that is, of course, his right, it is evident that the offender wishes to maintain his standing (as he perceives it), within his home and community generally and has elected to falsely portray to all that there is nothing adverse occurring in his life. This need for self-grandiose is also, in my opinion, present in the commission of the offences themselves and in the opinion of Dr Sheehan. The authorities have stated that the degree of remorse (or a complete lack of), is a significant factor in assessment to an offender's prospects of rehabilitation and likelihood of reoffending. The offender committed these offences when he was in his sixties and continues to deny the offending. Although I note the author of the sentence assessment report found he now accepted his behaviour was wrong, yet stated he thought he was performing a duty in good faith. He was assessed at being a low risk of reoffending according to the Level of Service Inventory. I am guarded about the offender's prospects of rehabilitation. He has a history of similar prior offending and this matter involved several frauds committed over a period of time involving different victims, individuals and corporate, different third parties duped and different financial institutions."
Remorse can only be taken into account as a mitigating factor if "the offender has provided evidence that he or she has accepted responsibility for his or her actions, and … has acknowledged any injury, loss or damage caused by his or her actions or made reparation for such injury, loss or damage (or both)": s 21A(3), Crimes (Sentencing Procedure) Act. There was no evidence before the judge that was capable of satisfying this requirement. The finding made by her Honour was well open to be made.
The applicant bore the onus of persuading the judge that he had good prospects of rehabilitation (and was unlikely to reoffend). She was not asked to make such findings. That was realistic in the circumstances.
There is no substance in the assertion of error in the judge taking into account his prior convictions for fraud. The judge had previously noted that the prior offences "were committed some years ago". [36] It might be different if the prior convictions were the only factor her Honour considered but that was clearly not the case. The applicant's lack of insight into his offending and lack of remorse were the more significant considerations and were clearly relevant to the assessment her Honour made.
There is no merit in any relation to these issues.

[10]

Ground 6 - error in failing to take into account, whether generally or by way of allowing a discount, the applicant's facilitation of the administration of justice. [37]

The applicant referred to statements made at the beginning of the trial by the Crown Prosecutor to the judge to the effect that the original estimate was five weeks but there were hopes of reducing this considerably because of proposed agreed facts and agreements as to documents that could be tendered to save the calling of some witnesses. [38]
Reference was also made to a discussion sometime after the applicant had discharged his legal representatives about the prosecution assisting Mr Carnaby by having police serve subpoenas, once issued, upon 26 persons he wanted to call as witnesses. The Crown Prosecutor indicated that they were not in a position to give evidence of relevance from the Crown's perspective. The judge inquired whether as an alternative the evidence sought from the witnesses could be obtained by questioning of the police officer in charge of the case. The Crown Prosecutor indicated that the officer had included such material in a statement previously served on the defence as a matter of disclosure. [39]
The applicant now contends he should have received some benefit for having facilitated the administration of justice by agreeing to a course which obviated the need to call 26 witnesses. [40]
The Crown responded by referring to the power provided by s 22A of the Crimes (Sentencing Procedure) Act to impose a lesser penalty than otherwise would have been imposed if the defence had facilitated the administration of justice, whether by disclosures made pre-trial or during the trial or otherwise. Whether this is a matter of "disclosure" need not be analysed. The applicant's argument is that he should have been given "some discount as it should be treated as though a cooperation with the court by the appellant".
The Crown pointed out, [41] however that no submission was made that the judge should impose a lesser penalty on this account. Thus, the Crown submitted, this complaint should be rejected as an attempt to reformulate the case presented at first instance. This is not a "rare circumstance" in which something has been overlooked and it would work a "serious injustice" if the Court did not allow it to be corrected: Zreika v R [2012] NSWCCA 44; (2012) 223 A Crim R 460 at [82].
The more fundamental hurdle for the applicant in relation to this issue is that even if he had been asked, there was a very good reason why the judge would not have allowed for any reduction of sentence. The trial estimate was five weeks. The applicant withdrew his instructions from his counsel on the seventh day which led to delays. In the end, the trial ran for five weeks.
As for the applicant's acquiescence with a proposal that would obviate the calling of 26 witnesses, the fact is that these were proposed defence witnesses. Facilitating the administration of justice or cooperating with the court does not involve abandoning an inefficient method of presentation of the defence case by accepting an alternative and better method.
There is no merit in relation to this complaint.

[11]

Ground 7 - a miscarriage of justice has occurred as a result of events subsequent to sentencing. [42]

With reliance upon a variety of medical reports and records the applicant submitted that his medical condition has deteriorated from what it was at the time of sentencing. He also argued that it was an agony for him to have his wife visit him as her medical and psychological condition has worsened as well. Another post-sentencing issue concerned an incident in respect of which a statement, a certificate and some photographs were provided.
This material was contained within or referred to in paragraphs 1 to 7 of the applicant's affidavit of 6 September 2022 and his affidavits of 18 and 25 October 2022. The Crown objected to the Court receiving any of it on the basis that it did not qualify as either fresh or new evidence.
The applicant did not identify how he contended this evidence was admissible in the appeal and not merely in the event the Court upheld any of the grounds and moved to resentence.
If any of the applicant's assertions of error in the sentencing process are made out it could be open to this Court to have regard to this evidence if tendered for use in that event (i.e. "on the usual basis"): Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25. As to whether the Court may take this evidence into account in more broadly considering whether there has been a miscarriage of justice in the sentencing process, the High Court said in that case (at [10]): "[10] … [I]t is well settled that the Court of Criminal Appeal's power to intervene is not enlivened unless error in any of the ways explained in House v The King is established. The identification of error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court. However, the Court of Criminal Appeal has recognised that there are bases upon which error at first instance may be disclosed by new or fresh evidence. Generally, the Court of Criminal Appeal insists upon proper grounds being established as a foundation for the exercise of its discretion to receive fresh evidence. Evidence qualifies as fresh evidence if it could not have been obtained at the time of the sentence hearing by the exercise of reasonable diligence. None of this is to deny that the Court of Criminal Appeal has the flexibility to receive new evidence where it is necessary to do so in order to avoid a miscarriage of justice." (Citations of authority omitted)
The principles relating to this issue were succinctly summarised by Wright J in GAR v R [2021] NSWCCA 265: "[76] This Court generally does not have power to disturb a sentence on appeal unless it is correcting an error of the kind explained in House v The King (1936) 55 CLR 499 at 504-505; [1936] HCA 40, and the identification of such error will ordinarily be by reference to the sentencing judge's reasons on the material that was before the court: Betts at [10] (French CJ, Kiefel, Bell, Gageler and Gordon JJ). An exception to that general position arises, however, where there is fresh evidence of a medical condition that existed at the time of sentencing but the condition was unknown or its seriousness not fully appreciated at the time: Anastasiou at [15] (Rothman J, McClellan CJ at CL and James J agreeing). Simpson J explained in Khoury as follows at [113]: "Where it is held that the facts or circumstances of which evidence is sought to be adduced existed at the time of sentencing, even if not known, or imperfectly understood, at that time, then, where the interests of justice have so dictated, the Court has admitted the additional evidence (sometimes properly categorised as fresh evidence) in order to correct the misunderstanding. It appears that the justification for this is that, although on the state of the evidence before the sentencing judge, no error could be identified in the process or the sentence, the sentencing proceeded upon an erroneous view of the factual circumstances. This proposition is sometimes traced back to the decision of the Supreme Court of South Australia in R v Smith (1987) 44 SASR 587 at 588. In all cases the power to admit the additional evidence is a discretionary one; 'proper grounds' must be established as a foundation for the exercise of the discretion to admit the evidence: R v Lanham [1970] 2 NSWR 217." [77] If, however, the facts relating to the relevant medical condition did not exist at the time of sentencing, it cannot have been an error for the sentencing judge not to have taken them into account. In those circumstances, the impact on the sentence of the medical condition which has arisen subsequent to sentencing is a matter for the executive government: Khoury at [110]; Munday at 178 (Street CJ, Moffitt P and Lee J agreeing)."
The sentencing judge took into account the applicant's ill-health in a manner favourable to him. This included it being a factor in the finding of "special circumstances" that moved her Honour to reduce the proportion of the sentence represented by the non-parole period. She also had regard to evidence concerning the applicant's wife; that she had a mental condition and that the applicant cared for her. [43] There is no principled basis for this Court to take into account further material on these subjects relating to events post-sentencing. There is nothing in the material that relates to some condition that existed at the time of sentencing, but which was unknown, or its seriousness not fully appreciated at the time.
The incident the subject of a statement, certificate and photographs occurred after sentencing and had no bearing at all upon the sentencing process or the issues there considered. Evidence pertaining to it is clearly not "fresh" or "new" in the sense described in the authorities (for example, Khoury v R [2011] NSWCCA 118 at [107]) and no basis has otherwise been demonstrated for its admission.
I propose that the Court refuse to receive the evidence referred to above, namely paragraphs 1 to 7 of the applicant's affidavit of 6 September 2022 and the entirety, including annexures, of his affidavits of 18 and 25 October 2022.

[13]

Totality [44]

The applicant submitted (in effect) that there should have been more (notional) concurrency and less accumulation of the indicative sentences in the determination of the aggregate sentence because of the identical features of all of the offences.
It was necessary for the judge to determine the aggregate sentence so that it was proportionate to the objective seriousness of the entirety of the offending.
The relevant sentencing principle is encapsulated in the following from the judgment of Gageler, Nettle and Gordon JJ in Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17: "[64] Ultimately the object of the sentencing exercise is to impose individual sentences that, so far as possible, accurately reflect the gravity of each offence while at the same time rendering a total effective sentence which, so far as possible, accurately reflects the totality of criminality comprised in the totality of offences. That is an exercise which involves a significant measure of discretionary moderation and accumulation of individual sentences according to the particular circumstances of each case. Up to a point, therefore, it is something about which sentencing judges might take different views of which neither could be said to be wrong. Generally speaking, however, the imposition of less severe individual sentences may call for a greater degree of accumulation in order to reflect total criminality whereas more severe individual sentences may necessitate a greater degree of concurrency."
Howie J said in Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 4 (and this was partially quoted in the applicant's written submissions at [72]): "[27] In any event there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is so regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both."
Having regard to the applicable maximum penalties (10 years for s 192E(1)(b) and 7 years for s 351A(1)) and the assessments of the objective seriousness of the individual sentences (see the table above at [14], the indicative sentences were relatively modest. This leaves no room to infer the judge did not make an appropriate allowance for such mitigating factors as there were.
A complete accumulation of the indicative sentences would have resulted in an aggregate in excess of 50 years. The fact the judge imposed an aggregate of 9 years indicates that there was a substantial degree of (notional) concurrency.
The applicant submitted at the hearing that the criminality involved in the recruitment offences overlapped with that in the fraud offences so that there should not have been any additional component of punishment for the former. That is, they should (notionally) have been entirely concurrent. [45]
An advantage of aggregate sentencing is that it is not necessary for a judge to specify starting dates for the sentences for each offence. As a result, however, it is difficult and sometimes impossible to know whether the judge determined (notionally) to wholly or partially accumulate one indicative sentence upon another: JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 at 39 and 40. So, even if the applicant's point is correct (which I do not accept) it is not possible to say there was any erroneous (notional) accumulation.
Confining attention to the 15 fraud offences, I am of the view that it is not the case that the sentence for only one, or a few, could comprehend the criminality of the whole of them. There were common features of the offending, but they were distinct instances perpetrated upon multiple victims over a three-year period. Significant (notional) accumulation was required in order for the aggregate sentence to be an appropriate reflection of the totality of criminality for those 15 offences by themselves.
These totality issues do not assist the applicant in establishing manifest excess in the sentence.

[16]

A table of 16 comparative cases supports the contention that the sentence is manifestly excessive. [48]

The applicant appreciated there are limitations in the utility of referring to other cases (and statistics) and in doing so cited (appropriately) [49] Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520.
At a very superficial level, the cases selected by the applicant for contrast with his own case may appear to support his contention of erroneous severity in the sentence he received but on closer analysis they do not. Differences between the applicant's case and those in the table include that quite a number of other offenders were able to rely upon their pleas of guilty [50] , remorse [51] and prior good character (or at least no prior convictions) [52] .
Of the 16 cases, only eight involved sentencing for an offence of obtaining a financial advantage by deception. [53] Significantly, they were all contrary to s 178BA(1), the predecessor of the present s 192E(1) offence. The repeal and replacement occurred when the Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW) took effect on 22 February 2010, as part of a broad overhaul of fraud and related offences in the principal Act. For this particular offence there was an increase in the maximum penalty of imprisonment from 5 years to 10 years. The effect is that the applicant invited comparison of his sentence with sentences imposed in cases at a time when the maximum penalty for the offence was half of that which applied in his case. Aside from other different features, this on its own substantially limited the utility of the exercise.
The other eight cases relied upon by the applicant concerned sentencing for offences with maximum penalties of either 5, 7 or 10 years. Some of them involved frauds in breach of a significant element of trust. [54] One involved defrauding the Commonwealth by way of tax fraud (failing to remit PAYE tax to the ATO). [55]
There are too many differences between the facts and the offences in the cases relied upon by the applicant to make a comparison worthwhile.

[22]

The item identified as "M3. Medical certificate justice health dated 22-05-2020" appears to relate to a Justice Health "Health Problem Notification form" dated 22 June 2020, followed by sundry medical records and letters not in date order but dated between 11 November 2019 and 12 May 2021, and then a handwritten document with various references and dates, all ruled through (AB 68-78) 13. Derived from AWS [56]-[58] and affidavit of 6.9.22 at 33. 14. 9.11.22 at T9.7-9.31 15. ROS 30.7 16. ROS 30-1 17. 27.3.20, T15 (AB 152) 18. AWS [43] 19. Crown written submissions in District Court, [26] (AB 263); 27.3.20 T27.33 (AB 164) 20. AWS [45]-[54] 21. ROS 24 22. ROS 21-24 23. Crown written submissions in District Court at [26], (AB 263); 27.3.20 T27.33 (AB 164) 24. AWS [63]-[66] 25. ROS 39 26. "Grounds of Appeal" document, page 6, [13]-[14]; see also Grounds of Appeal document page 1 and AWS [79]-[80] 27. The Crown identified this appearing in the trial transcript at page 410.44. 28. "Grounds of Appeal" document, page 6, [13]-[14]; AWS [59]-[62] 29. 9.11.22 at T10.41 30. AB 197-8 31. Report of Patrick Sheehan [16] (AB 300-1) 32. Sentence Assessment Report, p2 (AB 200) 33. Crown written submissions, 14.2.20, [23] (AB 262) 34. Proceedings on sentence, 27.3.20, T31.11 (AB 168) 35. ROS 36-7 36. ROS 30.5 37. Grounds of Appeal document, pp 4-6; AWS [34]-[36] 38. For example, T1, 18.9.19 (AB 347) 39. 14.10.19, T789-791 (AB 389-391) 40. Grounds of Appeal document, page 6 [12]; AWS [36] 41. CWS [80] 42. Grounds of Appeal document, pp 6-7, [18]-[30] 43. ROS 26.9, 29.9 44. Grounds of Appeal document, page 6 [15]; AWS [67]-[73] 45. 9.11.22, T2.47; T4.8 46. Grounds of Appeal document, pp 1-3 47. Grounds of Appeal document, page 7 [24] 48. AWS [81] 49. AWS [78] 50. R v Battiatio [1999] NSWCCA 44; R v Prasad, R v Krishnan, R v Prakash, R v Milford [2000] NSWCCA 539; R v De Souza [2001] NSWCCA 94; R v Jackson [2001] NSWCCA 355; Power v R [2002] NSWCCA 244; R v Vickers, R v Fearon (Court of Criminal Appeal (NSW), 17 October 1996, unrep); R v Vidler (Court of Criminal Appeal (NSW), 23 November 1993, unrep); R v Fell [2004] NSWCCA 235; Itaoui v R [2005] NSWCCA 415; (2005) 158 A Crim R 233; R v Pollard [2006] NSWCCA 405; and Gaffney v R [2009] NSWCCA 160 51. R v Battiatio; R v Prasad, R v Krishnan, R v Prakash, R v Milford (Krishnan only); R v Jackson; R v Power; R v Vickers, R v Fearon; R v Fell; R v Pollard; and R v Gaffney. 52. R v Egerton (Court of Criminal Appeal (NSW), 8 August 1997, unrep); R v Battiatio; R v Child [1999] NSWCCA 407; R v Prasad, R v Krishnan, R v Prakash, R v Milford (Prakash only; Krishnan had no prior convictions); R v Jackson; R v Pearce [2001] NSWCCA 447; R v Power; R v Vickers, R v Fearon; R v Fell (no prior convictions); Itaoui v R (no prior convictions); R v Pollard; and R v Boskovitz [1999] NSWCCA 437. 53. R v Battiatio; R v Child; R v Prasad, R v Krishnan, R v Prakash, R v Milford; R v De Souza; R v Vickers, R v Fearon; R v Fell; R v Pollard; and R v Gaffney. 54. For example, R v Egerton; and R v Jackson. 55. R v Pearce 56. AB 33-35 57. See, for example, 9.11.22 at T8.8 58. See, for example, 9.11.22 at T8.30 and above at [32]-[34] DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 02 December 2022

Carnaby v R

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