Cordoba v R - [2021] NSWCCA 144 - NSWCCA 2021 case summary — Zoe

NSWNSWCCA

Cordoba v R

[2021] NSWCCA 144

Court of Criminal Appeal (NSW)|2021-05-03|Before: Garling J, Adams J

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At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2021-05-03

Before

Garling J, Adams J

Catchwords

[2010] HCA 45 House v The King (1936) 55 CLR 499
[1936] HCA 40 JM v R [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601
[2014] HCA 37 Kliendienst v R [2020] NSWCCA 98 Markarian v The Queen (2005) 228 CLR 357
[2005] HCA 25 Matthews v R [2014] NSWCCA 185 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120

Source

Original judgment source is linked above.

Catchwords

[2010] HCA 45 House v The King (1936) 55 CLR 499[1936] HCA 40 JM v R [2014] NSWCCA 297 Kentwell v The Queen (2014) 252 CLR 601[2014] HCA 37 Kliendienst v R [2020] NSWCCA 98 Markarian v The Queen (2005) 228 CLR 357[2005] HCA 25 Matthews v R [2014] NSWCCA 185 Mulato v R [2006] NSWCCA 282 Muldrock v The Queen (2011) 244 CLR 120[2011] HCA 39 Obeid v R (2017) 96 NSWLR 155[2017] NSWCCA 221 Pearce v The Queen (1998) 194 CLR 610[1998] HCA 57 R v Trindall [2005] NSWCCA 446 R v Van Ryn [2016] NSWCCA 1 Wong v The Queen (2001) 207 CLR 584

Judgment (18 paragraphs)

[1]

Judgment

SIMPSON AJA: I agree with N Adams J.
GARLING J: I agree with the orders proposed by N Adams J, and with her Honour's reasons.
N ADAMS J: The applicant, Ronald Cordoba, seeks leave under s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Syme DCJ on 13 November 2019. On 11 July 2017, the applicant pleaded guilty to the following offences: Count 1: Dishonestly obtain financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) (maximum penalty of 10 years imprisonment); Count 2: Dishonestly obtain property by deception contrary to s 192E(1)(a) of the Crimes Act (maximum penalty of 10 years imprisonment). A further offence of failure to appear in accordance with bail undertaking contrary to s 79 of the Bail Act 2013 (NSW) (maximum penalty of 3 years imprisonment, 30 penalty units, or both) was taken into account on a Form 1; Seq. 53: Give false/misleading evidence at a public inquiry contrary to s 87(1) of the Independent Commission Against Corruption Act 1988 (NSW) ("ICAC Act") (maximum penalty of 5 years imprisonment, 200 penalty units, or both).

[2]

Factual background

Between December 2012 and August 2014, the applicant was acting manager of Information and Communications Technology services ("ICT services") for the South Western Sydney Institute of TAFE ("SWSI"). He had been employed by TAFE since 2002. His substantive position was senior education officer, teaching and learning consultant within the faculty of electro technology. During his employment at TAFE he had been sponsored to further his own education.
As the acting manager of ICT services, the applicant had a financial delegation of up to $150,000.
There was a system used to manage procurement within the New South Wales Government known as the SAP system. That system aimed to ensure that goods and services were only purchased from "approved" government suppliers. SWSI used this system.
Specific arrangements could be made to procure goods from "out of contract suppliers" depending on the amount involved. Out of contract purchases of less than $30,000 required a minimum of one written quotation. Out of contract purchases between $30,000 and $150,000 required three written quotations and out of contract purchases of greater than $150,000 required tenders.
In addition, there were applicable codes of conduct for procurement which included the following guidelines: 1. If a person is a permanent full-time or part-time employee they must seek approval in writing from their manager prior to engaging in secondary employment; 2. Where there is a possible conflict of interest, the employee's supervisor must be notified, and alternative supervision arranged; 3. Payment of suppliers of goods to TAFE cannot be made unless they have been created and approved as a vendor within the relevant procurement system. Such a request requires the supplier's name, ABN number, contact details and bank deposit details. An invoice or quotation must be provided with the request form so that those details can be confirmed.
The process of adding a vendor to the SAP system required several checks including financial accountant checks and independent approval. Similarly, when goods or services were sought, a check was conducted to see whether the goods and services were available from "in contract" suppliers. If they were available, the request would be approved by the line manager.
If goods were ordered from an "out of contract supplier" the quotation provided had to be attached to the relevant internal electronic order and then sent to the line manager for approval. The person who created the original order could not be the person who approved it. Once a purchase order had been raised, approved and forwarded to shared services, it was then sent to a vendor for fulfilment. Finally, an officer had to certify that the goods or services had been provided before the supplier could be paid.
The above process was put in place in order to ensure that goods and services required by TAFE were purchased only from approved suppliers and, once they were provided, that the goods were properly invoiced and paid for on delivery.

[3]

Count 1

The applicant had developed a professional working relationship with Jason Kinsella, who was a director of Cloud People Pty Ltd ("Cloud People"). Cloud People provided cloud-based IT infrastructure. Between 2011 and 2013, the applicant was in contact with Mr Kinsella. He engaged in regular conversations with him regarding opportunities for his company within the education and online learning systems.
In early 2013, the applicant emailed Mr Kinsella and told him that he had an idea for student learning which would involve the use of a Cloud People system. Following these discussions, Cloud People became an authorised vendor with TAFE, with the applicant's assistance. At the applicant's request, Mr Kinsella provided a demonstration of the Cloud People system and provided him with platform costings in accordance with their previous discussions.
The applicant subsequently informed Mr Kinsella that TAFE wanted him (the applicant) to undertake first and second level service support for the platform through his own company, ITD Systems trading as Storm Solutions, independent of TAFE. This representation was false. There had been no approval by TAFE for this to occur.
The applicant then billed Cloud People $50,000 excluding GST through his company, ITD Systems, for first and second level support. He subsequently signed a master services agreement between Cloud People and ITD Systems which was enforceable for a 12-month period. The agreement provided that the applicant as a subcontractor would provide first and second level support for the hosted private cloud at TAFE. He never provided these services.
Cloud People would not have engaged the applicant if they had known he was not authorised by TAFE to provide that support nor would they have paid him the sum of $55,000 to undertake that work. Neither the applicant nor his company ever provided any support on behalf of Cloud People to TAFE.
The applicant enlisted the services of Cloud People without seeking quotes from alternative providers. Contrary to what he told Mr Kinsella, he did not have approval and did not provide support at all. Cloud People therefore paid $55,000 for a service that was unauthorised, was dishonestly obtained and was not provided.

[4]

Count 2

A company known as ITD Pty Ltd was registered with ASIC in October 2003 and it remained active and registered until October 2014. No approval was provided by the director of that company for its ABN to be given to anyone else. The applicant set up a company called ITD Systems.
On 21 January 2014, the applicant requested to make ITD Pty Ltd a new vendor at SWSI. He submitted this request to his immediate line manager for approval. He provided his line manager with the name and ABN number of ITD Pty Ltd. The email address and accounts provided were linked to ITD Systems which was registered by the applicant as a business address. The request included a copy of a quotation concerning a Samsung SSD drive with a value of $418.
When the vendor's request was received, the usual process was adopted to check the ABN number on the quote provided and to ensure that the person associated with the company was not associated with any employees. The applicant provided a false name and address for the business name and later a request was made to include ITD Pty Ltd as a vendor in the SAP system.
The procedures adopted did not alert the line managers to any association between ITD Pty Ltd and the applicant due to the false email address and name supplied, and due to the use of a company with a registered ABN without that company's knowledge or consent.
On 27 February 2014, a submission prepared by the applicant was placed before the Board of Directors in which he sought funding for ICT technology capital expenditure for approximately $2.5 million for the 2014 financial year. The Board of Directors approved the funding.
Between January and August 2014, a total of 50 purchase orders and subsequent payments were made by TAFE to ITD Pty Ltd, all authorised by the applicant. The total value of the purchase orders raised on the system in favour ITD Pty Ltd was $1,709,904.90 including GST. This amount was paid into an NAB business cheque account in the name of Storm Solutions trading as ITD Systems. This was the account provided in the purchase tax invoices that were raised by ICT services and stamped, each referring to their respective purchase order numbers and values, and then signed by the applicant who certified that the goods had been received in good order and condition.
Apart from the first item no goods were received at all.
An extensive investigation commenced after a complaint was received regarding irregularities that had been observed in the purchase of a significant number of items from a single provider, ITD Pty Ltd. Analysis of the letterhead and invoices noted a discrepancy in the email address which was very slightly different to the ABN of the business trading as ITD Systems. It was discovered that the business name trading as ITD Systems was registered in the name of the applicant as a sole trader rather than ITD Pty Ltd which was a separate and unrelated company.
When questioned about this matter the applicant lied. He told a TAFE employee that goods were being held by the vendors and he requested a list of outstanding items from her. After the investigation commenced, the applicant started making purchases of some of the items and having them delivered to TAFE, in order to cover his deceit.
A number of the items purportedly supplied by the applicant's company were supplied at significantly inflated prices. He was able to achieve this because the purchase orders did not go through the appropriate approved system via a properly approved contract vendor.
The applicant's employment with TAFE ended in October 2015, after the discovery of these discrepancies, and while the investigation was proceeding.

[6]

Sequence 53: False evidence at a public inquiry

In March 2015, investigators executed a search warrant at the applicant's residence. It was put to him that he had supplied goods to TAFE using the ABN of another company and that he had raised purchase orders and approved payments to himself. The applicant responded that he had done so through an approved process and other people were aware of that system. He also told investigators that his line managers knew what he was doing, that the company ITD Systems was his company and that he had completed the appropriate declarations and paperwork.
On several occasions the applicant told investigators that his line managers were well aware that he owned the companies. He advised investigators that everybody in the system knew he owned the companies and everybody in the system was aware that he was providing goods and it was approved of. He told investigators that his line manager, Mr Humphries, kept saying, "I don't care how you do it, get it done" and was well aware that he was providing the items through his own companies. He repeated this statement on numerous occasions.
The applicant denied that he had any knowledge of Annalisa Rodrigues (in whose name emails were sent on behalf of ITD Systems) and further denied that he was responsible for sending emails in her name. When it was put to him specifically that TAFE had told investigators they were unaware that the company was owned by the applicant, he replied, "I understand and from my point of view they were well aware". The applicant told investigators that there was evidence and paperwork at TAFE, and that he had signed documents with companies that he worked with. None of this was true.
The applicant participated in a compulsory examination at ICAC on 9 June and 29 July 2015. He also gave evidence during a public inquiry in August and September 2015. Prior to answering questions, he was told by the Commissioner that he was obliged to answer all questions truthfully even though those answers might incriminate him in the commission of an offence. The protections afforded to him under ss 37 and 38 of the ICAC Act were explained to him including the fact that he was not protected against prosecution for giving false or misleading evidence.
During this compulsory examination, the applicant told the Commissioner that he was surprised when officers of the Commission came to his home and said that he was using a fraudulent ABN. He said that when he was filling out the initial vendor application form he went into the business name search website and looked up ITD Systems and found a business which he thought was his and used those details and did not notice the words "Proprietary Limited" at the end of the business name. He said he then, almost by accident, created a purchase order and invoice using the same ABN details. He said he did not check the details again when raising subsequent purchase orders. He gave this version of mistakenly using the ABN number incorrectly several times during the hearing.
On 18 August 2015, the applicant admitted on oath that he had lied in his compulsory examination and agreed that the use of the incorrect ABN was intentional to conceal his connection with the company. He told the Commission that he deliberately used the name ITD Pty Ltd and agreed with the proposition that it was only when he was confronted by the weight of evidence against him that he confessed to having lied months earlier.

[7]

Proceedings on sentence

Proceedings on sentence were conducted on 19 September 2019. A Crown bundle was tendered comprising a sentence summary, chronology, agreed facts for these offences, agreed facts for a previous dishonesty offence, the applicant's criminal and custodial history and a transcript of the applicant's evidence on 13 April 2018, which related to his medical conditions. As set out above, after receiving an adjournment on that date the applicant subsequently sought to traverse his plea and then failed to appear.
Counsel for the applicant tendered a defence bundle comprising: a psychological report of Ms Kris North, forensic psychologist, dated 20 June 2019; the applicant's medical records; a letter from the applicant dated 2 July 2019; a letter from the applicant's ex-wife, Ms Tia Cordoba, dated 9 June 2019; three character references; an affidavit of the applicant's solicitor, Mr Bo Yi Ye affirmed on 4 July 2019; and documents relating to the value of the applicant's properties.
The applicant gave evidence at the proceedings on sentence on 19 September 2019. He set out the medical conditions he was experiencing at that time and stated that he was taking medication for his heart, for his diabetes, and for his blood pressure. The applicant stated that he had been assaulted in custody and had also injured his wrist. The applicant gave evidence that he had to use a CPAP machine every night for his sleep apnoea and that this created difficulties with his cell mates. The applicant said that he had requested his own cell but was ineligible due his heart medication.
In relation to his motive for committing the offences, the applicant said that he felt stressed at work and under pressure to provide for his family. He stated that he used around $450,000 of the proceeds to purchase a second property and renovate it, as well as renovating his primary residence. The applicant said that he did not know what happened to the rest of the approximately $1.2 million obtained as a result of his offences.
Submissions on sentence addressed the degree of planning and sophistication involved in count 2, the applicant's prospects of rehabilitation, and the discount applicable in circumstances where the applicant pleaded guilty in the Local Court and then sought to traverse his plea before absconding and failing to appear in breach of his bail conditions.
In relation to count 1, the Crown submitted that the financial advantage was not insignificant, that the money had not been reimbursed, and that much of the outstanding amount was likely irretrievable. The Crown noted that the offence occurred between January and February 2014 and involved multiple instances of dishonesty. The Crown submitted that the applicant's motivation was "greed rather than need".
Counsel for the applicant submitted that the amount was "relatively modest" for offences under that section and that the fraud took place over a "relatively short time period of [two] months". Counsel for the applicant further submitted that the degree of planning was limited, that the fraud was not part of a planned or organised activity, and that the applicant did not attempt to mask his offending. It was submitted on behalf of the applicant that the count 1 offence fell below the mid-range of objective seriousness.
In relation to count 2, the Crown submitted that the offence was objectively considerably more serious than the count 1 offence as it involved a substantial sum of money, the offending occurred over a period of about six months, and the offending involved 50 separate purchase orders. The Crown also noted that the applicant only ceased offending when a complaint was made. The Crown further submitted that the offence involved a breach of trust by the applicant in his capacity as a senior employee of TAFE.
Counsel for the applicant submitted that the loss to TAFE would only be approximately $628,408.45 after the sale of the applicant's properties (which had not taken place at the date of sentence, although the applicant had recently signed the requisite documents). It was submitted on behalf of the applicant that the count 2 offence was within the mid-range of objective seriousness.

[8]

Remarks on sentence

After finding the facts as set out above, the sentencing judge turned to consider the objective seriousness of the offences. Her Honour took into account the following matters.
In relation to the duration of the offences, the sentencing judge observed that count 1 occurred over a relatively short period of time, that being two months, and that count 2 occurred over a period of 7 months. Her Honour found that the degree of planning and sophistication was significant. In relation to count 1, it was noted that the applicant cultivated a friendship with Mr Kinsella (the director of Cloud People) over a number of years and therefore the degree of organisation required for the deception was not necessarily great. Her Honour found that the degree of organisation in relation to count 2 was significant. The sentencing judge noted in this respect that the applicant intentionally chose a business name similar to ITD Pty Ltd, communicated under a false name, arranged for the approval of the vendor, and then engaged in over 50 fraudulent transactions, each of which required purposeful acts on the part of the applicant. The sentencing judge concluded that the offences could not in any way be characterised as opportunistic or impulsive.
The sentencing judge found that breach of trust was a significant aggravating factor in relation to count 2, due to applicant's senior position at TAFE. Her Honour noted that the breach of trust in relation to count 1 was only a breach of personal or business trust and therefore was not an aggravating factor under s 21A. Her Honour found that the amount defrauded in relation to count 1 was "no doubt a significant amount for a small company". In relation to count 2, the sentencing judge observed that the amount defrauded from TAFE was two-thirds of the department's budget for that year, and noted that some $1.2 remained outstanding, although approximately $600,000 was expected to be recovered from the sale of Mr Cordoba's properties. The sentencing judge observed that TAFE was a publicly funded institution and therefore any shortfall in funding due to the applicant's offending would have to be made good by the government and thus the entire community.
Regarding the applicant's motive for the offences, the sentencing judge observed that the applicant was on a significant income of approximately $150,000 per annum at the time of the offences and used the funds in part to fund the purchase of a second property. Her Honour rejected the submission that the money was required for the applicant's children, in particular for their medical conditions, as no evidence was provided to support this contention. Her Honour also rejected the submission that the offending was caused by work-related stress or depression as there was no evidence to support this.
The sentencing judge noted that the applicant had a previous conviction for a similar dishonesty offence in 1996 and was sentenced to a 3-year periodic detention order which was ultimately served by way of 1 year of full-time custody. The sentencing judge observed that this was not an aggravating factor but that it would "to some extent [deprive] him of leniency", noting that the offence was committed over 15 years prior to the index offences.
The sentencing judge found that count 2 was "much greater than mid-range seriousness for the charge offence" and that count 1 was "below but not significantly below mid-range".
For the s 166 certificate offence of giving false or misleading evidence to a public inquiry, the sentencing judge found that this offence was of slightly less than mid-range seriousness. Her Honour noted that the applicant gave false evidence on several occasions and did not retract the evidence until he had no other option.
For the Form 1 offence of failure to appear in accordance with a bail undertaking, the sentencing judge noted that, although there were no particular aggravating factors, it was clear that at the time the applicant entered into the bail undertaking he had "no intention whatsoever of complying with it". Her Honour made this finding based on the fact that the purpose of granting bail was for the applicant to have a medical procedure that was never conducted.
In relation to sequence 2, her Honour noted the significant breach of trust and the 50 separate purchase orders. Her Honour then observed: "Otherwise I find that especially with sequence 2 the systematic dishonesty was able to be achieved by a degree of sophistication and planning and therefore it is an aggravating circumstance pursuant to section 21A. This is reprehensible offending of much greater than mid-range seriousness for the offence charged. Sequence 1 relating to Cloud people is an offence of below but not significantly below mid-range seriousness."
Immediately after making these findings, the sentencing judge then stated the following: "The assessment of objective seriousness has been arrived at after taking into account any relevant mitigating matters, such as his plea of guilt[y] which I will now refer to."
Her Honour then went on to address the relevant mitigating factors under headings of "psychological issues" and "remorse".
In relation to the applicant's plea of guilty, her Honour noted that following his plea of guilty in the Local Court the applicant applied to vacate his sentence date in 2018 and then sought to traverse his plea, before absconding and failing to appear in breach of his bail conditions, causing a delay of more than one year. It was however noted that once police located the applicant in South Australia, he handed himself in to authorities, thereby sparing the expense of extradition proceedings. Her Honour concluded that: "Notwithstanding that, his plea of guilty to these relatively complex matters still affords him some benefit and I propose to allow a 15% discount on the sentence that would have otherwise been appropriate on the original offences."
The sentencing judge found that there were no mental health or other psychological issues that would have a mitigating effect on the applicant's sentence. Her Honour found that the applicant had reasonable prospects of rehabilitation. Her Honour noted the applicant's health issues but did not find any particular hardship to the applicant or his family by the imposition of a custodial sentence. In relation to remorse, the sentencing judge found that the applicant showed very little insight into his offending and demonstrated little remorse as to the consequences for the wider community. The sentencing judge did not make a finding of special circumstances.
In relation to the purposes of sentencing, her Honour found that there was a strong need for general deterrence due to the nature of the offences. It was further noted that the offences were easy to commit and that the applicant "entered into the commission of these offences with such enthusiasm that he did not expect to be caught." The sentencing judge found that specific deterrence was a "strong sentencing consideration" for the applicant.

[11]

Consideration: Ground 1

The finding by the sentencing judge was that count 1 was "below but not significantly below mid-range" and count 2 was "much greater than mid-range seriousness". It is well established that the assessment of the objective seriousness of an offence is one quintessentially for the sentencing judge: Mulato v R [2006] NSWCCA 282 at [46]. The applicant must establish House v The King error (House v The King (1936) 55 CLR 499; [1936] HCA 40) in order to succeed under this ground.
Specific error is relied upon under this ground: it was submitted that the use of the word "after" in the impugned passage meant that her Honour had sentenced contrary to Muldrock.
As the High Court observed in Muldrock at [27]: "Meaningful content cannot be given to the concept [of objective seriousness] by taking into account characteristics of the offender. The objective seriousness of an offence is to be assessed without reference to matters personal to a particular offender or class of offenders. It is to be determined wholly by reference to the nature of the offending."
There are two difficulties with the complaint made under this ground.
The first difficulty is that a reading of the reasons, as a whole, makes it clear that the sentencing judge meant to use the word "before" rather than the words "after" in the impugned passage. Her Honour had not referred to any subjective factors prior to the impugned paragraph. Immediately after that paragraph is a heading clearly indicating that it was at that stage her Honour commenced to consideration of the mitigating factors.
The second difficulty with the complaint under this ground is that even if it was to be accepted, contrary to the conclusion I have reached, that her Honour made the error alleged, it could only have been an error that would have benefited the applicant. As Simpson AJA observed during the hearing of this application, this is the sort of ground one would expect to see in a Crown appeal against manifest inadequacy.
No error is disclosed under this ground.

[14]

Consideration: Ground 3

An offence under s 192E of the Crimes Act is a "Table 1 offence" within the meaning of the Criminal Procedure Act: s 4A, Part 2 of Schedule 1 of the Criminal Procedure Act. Table 1 offences are to be dealt with summarily in the Local Court unless the prosecutor or the accused person elects otherwise: s 260(1), Criminal Procedure Act.
Despite the fact that this offence carries a maximum penalty of 10 years imprisonment, if it were dealt with in the Local Court the jurisdictional limit would be 2 years imprisonment (assuming it was the only offence for sentence). The fact that the jurisdictional limit increases from 2 years to 10 years once a decision is made for it to be dealt with in the District Court, rather than the Local Court, is relied upon by the applicant to submit that the jurisdictional limit of the Local Court, rather than the maximum penalty, should reflect the upper boundary of the sentence to be imposed. The applicant relied upon the decision in R v Trindall [2005] NSWCCA 446 but that decision does not assist him.
In R v Trindall the offender was charged with an offence under s 95 of the Crimes Act (steal from person in circumstances of aggravation). That is a strictly indictable offence. The Crown ultimately accepted pleas of guilty to charges under ss 94 and 61 of the Crimes Act (steal from person and common assault), which are both Table 2 offences, provided that the value of the property stolen does not exceed $5,000: ss 1, 3 of Table 2, Schedule 1 of the Criminal Procedure Act. Both of those offences could have been dealt with summarily in the Local Court if pleas had been accepted at that time. This fact was relied upon by the applicant at the proceedings on sentence. Despite this, the sentencing judge did not make any reference to this submission in the sentencing reasons.
On appeal to this Court, Hall J (with whom McClellan CJ at CL and Hodgson JA agreed) was satisfied that the sentencing judge erred in failing to have regard to a submission put to the court but held that the error did not warrant intervention (this decision pre-dated Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37). The relevant principle to be extracted from the decision in R v Trindall is as follows at [38]: "… the relevant principle is that a sentencing judge is not required to proceed upon the basis that the maximum available sentence is that which could have been imposed in the Local Court. It is but one circumstance to be taken into account by the judge in the exercise of his or her discretion."
In R v Trindall the DPP took a different approach in the District Court to that taken in the Local Court. That is to be distinguished from the circumstances of the applicant's case.
A similar complaint was made in Zreika in circumstances where the submission had not been made before the sentencing judge. In that context, Johnson J (with whom McClellan CJ at CL agreed) observed the following at [109]-[112]: "Unless this Court is able to clearly determine that the offence in question, committed by the particular offender with his or her criminal history, ought to have remained in the Local Court, then the argument is theoretical at best. The bare theoretical possibility of the matter being dealt with in the Local Court does not suffice: Wise v R [2006] NSWCCA 264 at [31]; R v Cage [2006] NSWCCA 304 at [31]; Edwards v R at [47]; McIntyre v R [2009] NSWCCA 305; 198 A Crim R 549 at 561-562 [62]-[67]. Grounds of appeal, as asserted by the present Applicant, have been considered in a number of recent decisions of this Court, including Bonwick v R [2010] NSWCCA 177, Dagdanasar v R [2010] NSWCCA 310, Lewis v R [2011] NSWCCA 206, Kean v R [2011] NSWCCA 136 and LB v R [2011] NSWCCA 220. The frequency of appeals which raise this ground tends to emphasise the fact that the issue is well known as a potential factor to be taken into account on sentence, so that this Court should apply a rigorous approach in requiring offenders to take the point at first instance, before being permitted to raise it in this Court. The ground of appeal can only be meaningful if this Court determines that the total sentence for the particular offence should not have exceeded the jurisdictional limit of the Local Court. It might be thought that a ground asserting manifest excess is capable of covering the same ground, if the position is that clear in the particular case. Unless it is plainly wrong that the offence is in the District Court, it is difficult to see how an offender can succeed on a ground of appeal which claims that a relevant factor has not been taken into account by the sentencing Judge."
This ground proceeds on the theoretical basis that count 1 could have been dealt with in the Local Court. It is possible that had this been the only offence committed by the applicant that may have been the case. But the applicant was being sentenced for a number of offences covering a span of years. Given the principle of totality, it would never have been possible for this matter to have been dealt with separately in the Local Court and the more serious matter (count 2) committed to the District Court for sentence. The sentencing judge was required to first determine the appropriate sentence for each individual offence before turning to a consideration of accumulation and concurrence: Pearce v The Queen (1998) 194 CLR 610; [1998] HCA 57. This same approach applies when imposing an aggregate sentence: JM v R [2014] NSWCCA 297 at [39(4)]; Kliendienst v R [2020] NSWCCA 98 at [84].
Furthermore, an assessment of the objective seriousness of each individual offence includes an assessment of the context in which that offence occurred. R A Hulme J (with whom Leeming JA and Johnson J agreed) considered a similar complaint in R v Van Ryn [2016] NSWCCA 1. His Honour observed the following at [226]: "With respect, I cannot accept the logic of this in a case where there are a significant number of charges with some being strictly indictable. Although it was said that it was not necessary for a judge to look at each offence in a vacuum, it was submitted that the gravity of the offences must be determined individually. I accept the latter but it does not justify invocation of an artificial consideration that if each offence was prosecuted in isolation from the others they might have been dealt with in the Local Court."
The applicant's submission, that if count 1 had been dealt with summarily and in isolation it may not have attracted a custodial sentence, is based on a hypothetical situation that is removed from the facts before the sentencing judge.
The applicant relied upon the JIRS statistics published by the Judicial Commission which record that over the course of almost four years, from January 2016 to December 2019, 3,500 offences under s 192E(1) of the Crimes Act were dealt with in the Local Court while only 122 were dealt with in the higher Courts. But these bare figures simply reflect the fact that the DPP in most cases was satisfied that the objective criminality involved could be dealt with within the jurisdictional limit of the Local Court. Given that the criminality in count 1 was closely connected with the subsequent offence, it was never going to be dealt with in the Local Court separately to the principal offence.
A further difficulty with the complaint made under this ground is that at no time was it submitted to the sentencing judge that the fact that count 1 could have been dealt with in the Local Court was a factor relevant to the sentencing exercise. As Johnson J observed at [81] in Zreika, in sentencing appeals to this Court: "….the Court is reviewing the exercise of a discretionary judgment and not rehearing a plea of mitigation. It is not the occasion for the revision and reformulation of the case presented below. The Court will not lightly entertain arguments that could have been put, but were not advanced on the plea, and will have an even greater reluctance to entertain arguments that seek to resile from concessions made below or are a contradiction of submissions previously made."
Johnson J went on to observe at [82] that: "In rare circumstances, a factor which may operate in mitigation of penalty (and which appears clearly from the material before the sentencing Judge) may have been overlooked by defence counsel and the sentencing Judge. In such a case, this Court may be invited to have regard to it, often in circumstances where the Crown will accept that the relevant material raised a factor which should unequivocally operate in the offender's favour on sentence. As Warren CJ said in Bayram v R at [29], it may 'render a serious injustice' if an offender was not able to correct the error in such a case. This approach reflects the primacy of the rule that appeal grounds should relate to arguments put, and decisions made, at first instance. At the same time, criminal appellate courts should be able to correct a miscarriage of justice, or serious injustice, in the clear and rare cases where the relevant matter has not been relied upon at first instance." (emphasis in original)
No error has been established under this ground.

[15]

Applicant's submissions

This ground contends for manifest excess in both the aggregate sentence and the indicative sentence for count 1. It was submitted that Court would find that the indicative sentence for count 1 was manifestly excessive and that this would be a guide to establishing error in the aggregate sentence.
In relation to the indicative sentence for count 1, counsel for the applicant submitted that the starting point for the offence, before applying the 15% discount, was 44 or 45 months. It was submitted that the salient features of this offence were: that the amount involved was $55,000; that the offending occurred over a period of two months; that there was a degree of planning; and that the applicant had a previous conviction for dishonesty in 1996. It was submitted that there was an absence of evidence as to the impact of the offending on Cloud People, the company that was defrauded. Counsel for the applicant submitted that the offence would ordinarily have been dealt with in the Local Court and that, while the s 5 threshold was crossed because of the other offences and the fact that it was dealt with in the District Court, the indicative sentence was manifestly excessive.
In relation to the range of offending covered by the section, counsel for the applicant noted that offences under s 192E can involve millions of dollars: Matthews v R [2014] NSWCCA 185 at [21] per Hamill J (Macfarlan JA and Fullerton J agreeing). By way of comparison, it was further noted that the amount involved in the count 2 offence was some 30 times greater than the amount defrauded in count 1, and that the indicative sentence for count 2 was 6 years imprisonment. It was further submitted that the indicative sentence for count 2 would necessarily have been increased as a result of the failure to appear offence taken into account on the Form 1, although it was conceded that the count 2 offence was incapable of any real comparison and that the starting point for count 2 (before applying a discount) was unclear. It was submitted that given the "much lower" level of objective seriousness for count 1 compared to count 2, the indicative sentence for count 1 was excessive.
In relation to the aggregate sentence, the applicant did not submit that the indicative sentences for count 2 or sequence 53 were unjust or unreasonable, and submitted instead that the aggregate sentence was infected by the alleged error in the indicative sentence for count 1.

[17]

Consideration: Ground 4

The question for consideration under this ground is whether the aggregate sentence imposed is "unreasonable or plainly unjust": Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25]; Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [75].
Consideration of whether a sentence is unreasonable or plainly unjust is undertaken in the context that there is no single correct sentence and that sentencing is not a mathematical exercise. In arriving at the sentence to be imposed, sentencing judges are required to balance a number of different and conflicting factors: Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 at [443].
An aggregate sentence was imposed upon the applicant under s 53A of the Crimes (Sentencing Procedure) Act 1999 (NSW). When imposing an aggregate sentence a court is required to, inter alia, indicate the sentences that would have been imposed if separate sentences had been imposed ("indicative sentences"): s 53A(2). Thus, an application for leave to appeal against sentence is brought in relation to the aggregate sentence imposed and not the indicative sentences: JM v R. Despite this, it is permissible to have regard to the indicative sentences when assessing whether an aggregate sentence is manifestly excessive. This is because an error in fixing the indicative sentences may lead to a conclusion of error in relation to the aggregate sentence. As R A Hulme J observed in JM v R at [40]: "The indicative sentences recorded in accordance with s 53A(2) are not themselves amenable to appeal, although they may be a guide to whether error is established in relation to the aggregate sentence: R v Brown, supra, at [17]; Nykolyn v R, supra, at [58]; PD v R [2012] NSWCCA 242 at [44]; R v Rae [2013] NSWCCA 9 at [32]-[33], [42]-[43]; Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [218], [227]; Subramaniam v R, supra, at [28]; SHR v R, supra, at [40]; R v Clarke, supra, at [56]; Martin v R [2014] NSWCCA 124 at [47]; JL v R [2014] NSWCCA 130 at [17]; Stoeski v R, supra, at [43]; CL v R [2014] NSWCCA 196 at [53]-[55]. … A principal focus of determination of a ground alleging manifest inadequacy or excess will be whether the aggregate sentence reflects the totality of the criminality involved: R v Brown, supra, at [37]; R v Rae, supra, at [42]-[46], [62], [69]. This Court is not in a position to analyse issues of concurrence and accumulation in the same way that it can analyse traditional sentencing structures: Truong v R; R v Le; Nguyen v R; R v Nguyen, supra, at [231]; Martin v R, supra, at [33]-[41]."
Thus, even if error was established in the indicative sentence for count 1, that would not necessarily mean that the aggregate sentence was manifestly excessive.
The indicative sentence on count 1 was 3 years and 2 months imprisonment (as against a maximum penalty of 10 years imprisonment). The indicative sentence on count 2 (taking into account the failure to appear offence on the Form 1) was 6 years imprisonment (as against a maximum penalty of 10 years imprisonment) and the indicative sentence on sequence 53 was 1 year and 6 months imprisonment (as against a maximum penalty of 5 years imprisonment).
Determination of this ground turns on whether the indicative sentence on count 1 was manifestly excessive. Her Honour was satisfied that the objective seriousness of that offence was in the mid-range. A discount of 15% was applied to the indicative sentence. Although the amount involved was only $50,000, this was found to be a significant amount for a small company. There was also a degree of planning. The applicant's subjective case was largely favourable, but her Honour only made faint findings in relation to remorse and prospects of rehabilitation.
Having considered all factors relevant to the fixing of the indicative sentence for count 1, I am satisfied that it is very high, possibly manifestly so, but the application of the totality principle means that even if it was manifestly excessive that does not inevitably lead to the conclusion that the aggregate sentence imposed was manifestly excessive.
Her Honour was satisfied that counts 1 and 2 took placed over a long period of time, that the applicant had established trust over many years with the relevant organisations and that TAFE had sponsored his continued education, which "merely underline[d] the moral failure of all of his actions". As her Honour concluded, the applicant's conduct was "reprehensible". Having already served a period in gaol for a dishonesty offence committed in 1996, he went on to enact a considerable fraud on his employer who was using taxpayer funds to provide education to adults. Her Honour found that the offences were not opportunistic or impulsive, that they required a significant degree of planning and sophistication and that the amounts defrauded were significant for those organisations.
When the applicant was first apprehended, he lied to investigators. He then lied at the public hearing until the deception grew too large and he finally conceded that he had lied. He then secured an adjournment for his sentencing proceedings on the basis that he needed gastric sleeve surgery. He did not have the surgery. Rather, he went on the run for nearly a year, assumed a false identity and continued to work in the same field until he was finally apprehended. Her Honour noted that around $600,000 remained outstanding in relation to count 2 and that this would have to be made up by the whole community through taxpayer funds. Her Honour rejected the purported motive of financial need and work-related stress and found that the applicant's motive was greed.
I am satisfied that even if error was disclosed in the fixing of the indicative sentence on count 1, having regard to the principle of totality, the aggregate sentence is not unjust or plainly unreasonable.
I would not uphold this ground.

Cordoba v R

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