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Representation: Counsel:
Mr M Gleeson (Applicant)
Ms M Knowles (Respondent)
Solicitors:
Ryan Payten Le (Applicant)
Office of the Director of Public Prosecutions (NSW) (Respondent)

File Number(s): 2023/00289544; 2023/00289548; 2024/00056929; 2024/00172068

Publication restriction: Not applicable

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant, Peter Anthony Walker, sought leave to appeal against the aggregate sentence imposed on him in the District Court on 20 March 2025. The aggregate sentence imposed on him followed his pleas of guilty to a series of offences, committed between 2023 and 2024, including larceny, enter dwelling with intent to commit a serious indictable offence (taking into account an offence of larceny on a Form 1), two counts of dishonestly obtaining a financial advantage by deception, contravening an apprehended domestic violence order (on a “s 166 certificate”) and two counts of failing to appear in accordance with a bail acknowledgment.

After pronouncing the indicative sentence for each offence, including the 25% discount for each of the early guilty pleas, the sentencing judge imposed an aggregate term of imprisonment of 7 years and 2 months with a non-parole period of 4 years and 9 months.

The applicant sought leave to appeal his aggregate sentence on the sole ground that the sentence imposed was manifestly excessive. In advancing his appeal, the applicant contended that two of the indicative sentences (for the two counts of dishonestly obtaining a financial advantage by deception) were excessive and assumed “prominence” in the overall aggregate sentence.

The Court (Boulten J, Kirk JA and Roberts J agreeing) held, granting leave to appeal but dismissing the appeal:

(1) The fundamental question in this appeal is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality involved in the offences: at [51]; (Boulten J); [1] (Kirk JA); [80] (Roberts J).

Lee v R [2020] NSWCCA 244; Saleh v R [2026] NSWCCA 42, cited.

(2) The aggregate sentence imposed, although stern, was within the sentencing judge’s discretionary range of available sentences. It was not unreasonable or plainly unjust: [73]-[78] (Boulten J); [1] (Kirk JA); [80] (Roberts J).

JUDGMENT

1. KIRK JA: I agree with Boulten J. The applicant’s attack was directed to the aggregate sentence imposed, albeit he criticised two of the indicative sentences identified by the sentencing judge as steps in his argument. He did not argue that a finding that any indicative sentence was excessive would suffice to uphold the appeal, or was equivalent to a finding of patent error in an indicative sentence, and thus it is not necessary to consider such issues. In my view the sentence imposed was stern. Taking account of all of the circumstances, however, I am not persuaded that the applicant made good his complaint that the aggregate sentence imposed was manifestly excessive, that is to say, unreasonable or plainly unjust.

2. BOULTEN J: The applicant seeks leave pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW) to appeal against the sentence imposed on him by Herbert DCJ in the District Court on 20 March 2025. He pleaded guilty to various offences in the Local Court (as specified at [6] below) and he was sentenced to an aggregate term of imprisonment of 7 years and 2 months with a non-parole period of 4 years and 9 months.

3. The applicant advanced a single ground of appeal, namely, that the aggregate sentence imposed was manifestly excessive. The applicant has not asserted any kind of misapplication of principle in advancing this appeal ground. Instead, the applicant has primarily focussed on two of the indicative sentences and argued that they were both manifestly excessive and, therefore, resulted in the aggregate sentence being manifestly excessive.

4. The issue in this appeal is not whether those indicative sentences are manifestly excessive. It is well established that indicative sentences are not amenable to appeal. Rather, the fundamental question here is whether the aggregate sentence imposed is manifestly excessive when viewed against the total criminality of the relevant offences.

5. For the reasons that follow, I consider that while leave should be granted, the appeal should be dismissed.

The offences

6. It is first convenient to identify the different principal and related offences the subject of this appeal, the maximum penalties, and the indicative sentences pronounced by the sentencing judge, as follows.

| # | Charge | Reference | Maximum penalty | Indicative sentence | | Offence 1 | Larceny Crimes Act 1900 (NSW) s 117 | H81547653/1 | 5 years imprisonment | 1 year 1 month | | Offence 2 | Enter dwelling with intent to commit a serious indictable offence (taking into account on a Form 1 an offence of larceny) Crimes Act s 111(1) | H81547653/5 | 10 years imprisonment | 1 year 6 months | | Offence 3 | Dishonestly obtain financial advantage Crimes Act s 192E(1)(b) | H94402812/2 | 10 years imprisonment | 3 years | | Offence 4 | Contravene apprehended domestic violence order (on a “s 166 certificate”) Crimes (Domestic and Personal Violence) Act 2007 (NSW) s 14(1) | H79419511/1 | 2 years imprisonment and/or fine of 50 penalty units | 9 months | | Offence 5 | Dishonestly obtain financial advantage Crimes Act s 192E(1)(b) | H81170915/1 | 10 years imprisonment | 5 years 3 months | | Offence 6 | Fail to appear Bail Act 2013 (NSW) s 79(1) | H81547653/4 | 3 years imprisonment and/or fine of 30 penalty units | 6 months | | Offence 7 | Fail to appear Bail Act s 79(1) | H81170915/2 | 3 years imprisonment and/or fine of 30 penalty units | 6 months |

The salient facts

7. The facts were agreed. Whilst it is not necessary to set those facts out in their entirety, their salient features are as follows:

Offence 1

8. In August 2023, the applicant was residing in a property belonging to his partner, “SN”. That property had a granny flat where another woman, “MK”, was living. By early August, MK had been in the granny flat for about three weeks and she was living alone. She was also five months pregnant and not particularly familiar with the applicant.

9. When MK was unpacking her belongings, she placed plastic tubs on the granny flat’s verandah. One tub contained two jewellery boxes. Between 22 and 23 August 2023, the applicant went through the tubs and stole the jewellery boxes and their contents.

Offence 2

10. Sometime between the early morning of 23 and 24 August 2023, the applicant entered MK’s granny flat with intent to steal, knowing she was not at home at the time. The applicant rummaged through the house and stole a smart phone, a television and other items. The entry into the premises with intent to steal was charged as Offence 2. The larceny charge was placed on the Form 1.

Offence 3

11. Whilst the applicant was in an intimate relationship with SN, he made 52 fraudulent transactions from her bank account, totalling $6,383 over the course of around a 6-month period.

Offence 4 (on a s 166 certificate)

12. When SN reported the facts underpinning Offence 3 in August 2023, police issued a provisional Apprehended Violence Order (“AVO”) against the accused, which included a condition not to contact SN.

13. The applicant was served with a copy of the order at the time of his arrest on 11 September 2023. He immediately entered custody and, over the course of the following 3-month period, he contacted (or attempted to contact) SN via telephone 420 times. He also contacted her indirectly through other people. This course of contact breached the AVO.

Offence 5

14. Between 24 and 30 October 2023, the applicant shared a cell in custody with another prisoner, “PK”. While sharing the cell, they both had their own electronic tablet devices issued by Corrective Services. Those devices are capable of being used to contact registered people, usually family or friends. To operate the device, inmates must enter a four-digit code and their individualised Master Index Number (or otherwise known as a “MIN”).

15. The applicant watched PK enter his personal credentials to access his device and memorised the details. Around the same time, the applicant crafted an anonymous note which falsely claimed a threat to PK’s life. This resulted in PK being removed from his cell and placed into segregation as staff believed the threat to be genuine.

16. Once PK was removed from the cell, the applicant started to use PK’s account to make calls to “MR” (the victim), who is PK’s sister. They were not known to each other. On 31 October 2023, the applicant called and introduced himself as “John” and claimed an attempt had been made on PK’s life. He said that PK was in the hospital clinic, his blood pressure was out of control, and the doctors were struggling to control it. The applicant demanded that MR transfer $500 into his account. She panicked and complied.

17. Over the following days, the applicant called the victim on a number of other occasions. On 1 November, he called and confirmed receipt of the $500 payment. On 5 November, he called and lied about PK’s blood pressure again, stating that it remained out of control and that he was in a poor condition. On 6 November, he called and again lied about PK’s physical health condition. He said, for example, that “[PK] is still very ill with high blood pressure and severe migraines, and more accusations and attempts are being made towards him. He is not in a good position and is in grave danger”. He called later that evening and said that PK had left a note stating, “I am in trouble, and you’re the only one who can help me. I will pay you back when I get out. Little sister, please help me”.

18. The applicant told the victim that her brother needed $10,000 transferred into the applicant’s bank account and an additional $300 into the applicant’s prison account. MR was, quite obviously, stressed, panicked and concerned for her brother. She told the applicant, “$10,000 is an enormous amount of money. This is insane”. But the applicant said the money needed to be deposited, or else her brother would be a “marked man”. MR eventually complied and transferred $10,800 to the applicant’s bank account over a total of four transactions.

Offences 6 and 7

19. The applicant was granted conditional bail by the Supreme Court on 12 July 2024. A condition of his bail was that he appear at Newcastle and Penrith Local Courts on 17 and 19 July 2024, respectively. He failed to do so, which resulted in the issue and execution of a warrant for his arrest.

Proceedings on sentence

20. On 20 March 2025, proceedings on sentence took place. The Crown tendered, amongst other things, the agreed facts, the applicant’s criminal and custodial history, and a victim impact statement from MR.

21. The applicant did not give evidence. However, he did tender a chronology of his custodial history and a psychologist’s report from Dr Thea Gumbert which was dated 7 March 2025.

Submissions before the sentencing judge

22. The applicant identified different matters either informing or militating against the objective seriousness of the offending. It is worthwhile to state his submissions in respect of Offences 3 and 5 as they are both an important focus of this appeal. First, in relation to Offence 3:

“The following matters militate or inform the objective seriousness of the offending:

a. The offending comprised 52 unauthorised payments over a single month totalling $6,383.00;

b. That he was motivated from financial hardship stemming from his drug addiction which was costing him $400 every week;

c. He admitted his guilt to the victim, including the means by which he committed the offences, to the victim prior to her reporting the offending to police;

d. It was unsophisticated, its discovery was inevitable and there was no attempt to conceal his own involvement; and

e. Whilst the offender was in a relationship with the victim, he was evidently not entrusted with access to her bank account given he did not know her password”

23. Secondly, with respect to Offence 5:

“The following matters militate or inform the objective seriousness of the offending:

a. That he was motivated to obtain money for his buy-up;

b. The victim was particularly naïve given:

i. She didn’t appear to question the statement by the offender that she was not to speak to her brother about the issue;

ii. There is no evidence she sought to contact the correctional centre to verify any aspect of the offender’s account;

iii. There is no evidence that she had any reason to believe the offender as a reliable and trustworthy source of information; and

iv. The false story appears internally contradictory; that [PK] was in the hospital clinic for high blood pressure which the doctors were purportedly unable to ‘control’ but there also had been an ‘attempt on [PK’s] life.

c. The money would inevitably be traced to the offender given it was transferred into his prison account and into a PAY ID Account”.

24. Separately, the applicant made submissions about his personal circumstances on the basis of the expert evidence of Dr Gumbert. This evidence demonstrated a history of drug addiction and poor mental health. Against this, the applicant argued that his addiction materially contributed to his offending such that it significantly reduced his moral culpability.

25. At the sentencing hearing, her Honour inquired about moral culpability in circumstances where the evidence does not suggest the applicant’s use of drugs was not a free choice. In response, the following oral submission was made on behalf of the applicant:

“… And this is not a situation where perhaps a colloquial use of the word, drug addiction, may be of varying degrees in which someone has a particular reliance or desire to use drugs, but this one that manifests in what is opined by Dr Gumbert as a mental health disorder. And when it reaches that level, in my submission, that mental health disorder which manifests in, that compulsion to use drugs is one that would, in my submission, affect an assessment of the moral culpability”.

26. On the other hand, the respondent placed considerable emphasis on the objective seriousness of the offending, identifying a range of aggravating factors, such as the applicant’s history of previous convictions, which included convictions for similar offences. For example, the Crown made the following written submission:

“… the offender’s record of prior convictions indicates that the sentencing offences were not an uncharacteristic aberration and demonstrates the offender possesses a ‘continuing attitude of disobedience towards the law’ (Veen v The Queen (No 2) (1998) 164 CLR 465 at [477]-[448])”.

27. As to the issue of moral culpability, the respondent accepted that the applicant’s substance use disorder was causally connected with his offending involving financial gain – except with respect to Offence 5. In relation to that offence, the respondent submitted that no causal connection can be drawn because the applicant “conceded his motivation to obtain the victim’s money was to pay for his buy-ups”.

Remarks on sentence

Objective seriousness

28. The sentencing judge succinctly assessed the objective seriousness of each offence separately, as summarised below.

Offence 1

29. This offence, which her Honour considered to be impulsive and opportunistic, was assessed at the “lower range of objective seriousness”.

Offence 2

30. Similarly to Offence 1, her Honour considered this offending to be opportunistic in the absence of any evidence to the contrary. It was characterised by her Honour as being in the “lower range”.

Offence 3

31. While the sentencing judge refrained from placing this offence on a notional scale, her Honour characterised it as an “objectively serious offence”. Her Honour also observed:

“The offender took advantage of his relationship with the victim to be able to request a reset of her password, and this is also indicative of a degree of planning on his behalf”.

Offence 4

32. This offence was also characterised as being “objectively serious” due to the volume of calls, the period over which the calls were made, and the multiple phone numbers that were used to contact SN. Her Honour found that SN was not safe from the applicant, even whilst he was in custody.

Offence 5

33. This offending unquestionably involved a “degree of sophistication and planning”. The sentencing judge found:

“The various acts of deception were callous acts by the offender to take advantage of the victim’s concern for the wellbeing of her brother.”

34. In response to the applicant’s written submission that the victim’s naivety militated against the objective seriousness of the offending, her Honour remarked during the sentencing hearing:

“It really sounds like you’re victim blaming. She was stupid, or she was naïve, as opposed to, he was callous, he abused the relationship she had with her brother, he acted on her vulnerability and concern for the man when he discovered that he was able to get money out of her, and that she was somehow to blame for callous actions. I mean, I’m finding this offence extraordinarily serious…” (Emphasis added.)

35. The following finding was then made in her Honour’s remarks on sentence:

“I do not accept that the naivety of the victim can lessen the seriousness of the offending in any way. The offender took advantage of her requesting much larger amounts after discovering her vulnerability”.

36. Additionally, her Honour also found:

“The offender was aware that the victim was the younger sister of [PK] and used that information to pressure her and to make false claims about [PK] having written a note to the victim. The offender claimed to the victim that he was a murderer so that she would be scared and comply. The offence occurred over a period of nine days with separate acts of deception to cause the victim to transfer money on four occasions. The total obtained being more than $10,000, which is not an insubstantial sum of money. The offence is in the high range of objective seriousness”. (Emphasis added.)

Offences 6 and 7

37. In observing these offences occurred within a week of the applicant’s release from custody, her Honour found that the applicant “never intended to comply with his bail undertaking”.

Subjective circumstances

38. In assessing the applicant’s subjective circumstances, her Honour turned to Dr Gumbert’s report and the sentencing assessment report. The following sentencing remarks are particularly illustrative of her Honour’s findings in this context:

“It is a significant matter of aggravation that the offender was on conditional liberty at the time of the offences committed while in the community.

In the present matter the offender was an adult when he commenced taking prohibited drugs. There is nothing in the report of Dr Gumbert to show that this was other than a choice made by the offender when he was in his late twenties. The drug addiction may explain the commission of the offences 1 to 3 but does nothing to reduce the offender’s moral culpability for those offences or his other offences. It does not mean that the offender is an inappropriate vehicle for general deterrence.

I accept that the offender is [a] person who is at risk of institutionalisation given the period that he has spent in custody.

Consideration of general deterrence is important for the offences committed by the offender. Clearly, weight must be given to personal deterrence”.

Remorse and prospects of rehabilitation

39. The applicant’s early guilty pleas resulted in a 25% discount in sentence to reflect the utilitarian benefit of the pleas.

40. In terms of the applicant’s remorse and prospects of rehabilitation, her Honour made the following pertinent finding:

“I accept the offender has expressed remorse for his offences, even though he minimised his role with respect to the offence involving [MR] in his conversation with Dr Gumbert. I find the offender has at best guarded prospects of rehabilitation. I cannot be satisfied that he will not commit further offences”.

The ultimate sentence

41. In all the circumstances, both the applicant and the Crown accepted that no sentence other than imprisonment was appropriate. As noted, her Honour imposed an aggregate sentence of imprisonment of 7 years and 2 months with a non-parole period of 4 years and 9 months.

42. In finding special circumstances, her Honour observed:

“The offender would benefit from an extended period of supervision to ensure that he has the opportunity to address his drug relapse prevention while in the community”.

43. The aggregate sentence also incorporated a degree of accumulation to “reflect the separate nature of the offences and the overall criminality”.

Is the aggregate sentence manifestly excessive?

The precise basis of the applicant’s appeal

44. As noted already, the applicant’s appeal is advanced on the ground of manifest excess. However, the applicant’s written submissions caused some doubt about the precise basis on which he alleged the sentence is manifestly excessive.

45. The following submissions tended to suggest, clearly enough, that the applicant’s appeal was premised on the existence of latent error in two of the indicative sentences for the fraud offences (Offences 3 and 5). First, the applicant confirmed in those submissions that he “does not challenge her Honour’s overall findings”. Secondly, the heart of the applicant’s position on the appeal was articulated through the following written submission:

“The essence of the applicant’s argument is that the indicative sentences for both fraud offences, although themselves not amenable to appeal, appear to be manifestly excessive. It is submitted that given their relative severity compared to the balance of the offences, the fraud offences irrefutably took prominence in determining the aggregate sentence”.

46. However, in dealing specifically with Offence 5, the applicant advanced the following written submission:

“The applicant submits [h]er Honour erred in making the finding at (a)-(b) above; and that contributed to the error in characterising the fraud as ‘extraordinarily serious’ and ‘high range’”.

47. This cast doubt over the true basis of the applicant’s appeal. Nevertheless, Mr Gleeson, who appeared for the applicant at the appeal hearing, confirmed that actually none of the sentencing judge’s findings were being challenged. Mr Gleeson specifically confirmed that the applicant’s “narrow point” of argument was crystalised by the written submission quoted at [45] above. Accordingly, it became clear that the applicant’s appeal concerned alleged latent errors in the indicative sentences for Offences 3 and 5, which were said to have resulted in a manifestly excessive aggregate sentence.

Principles

48. With that clarified, a useful starting point for considering appeals where the ground of appeal is one of manifest excess is R A Hulme J’s summary in Obeid v R (2017) 96 NSWLR 155; [2017] NSWCCA 221 (Bathurst CJ, Leeming JA, Hamill and N Adams JJ agreeing). His Honour stated the following (at [443]):

“When it is contended that a sentence is manifestly excessive it is necessary to have regard to the following principles derived from House v The King (1936) 55 CLR 499; [1936] HCA 40 at 505; Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29 at [15]; Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [6]; Wong v The Queen (2001) 207 CLR 584; [2001] HCA 64 at [58]; Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25 at [25], [27]; and Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45 at [59].

· Appellate intervention is not justified simply because the result arrived at in the court below is markedly different from sentences imposed in other cases.

· Intervention is only warranted where the difference is such that it may be concluded that there must have been some misapplication of principle, even though where and how is not apparent from the reasons of the sentencing judge, or where the sentence imposed is so far outside the range of sentences available that there must have been error.

· It is not to the point that this Court might have exercised the sentencing discretion differently.

· There is no single correct sentence and judges at first instance are allowed as much flexibility in sentencing as is consonant with consistency of approach and application of principle.

· It is for the applicant to establish that the sentence was unreasonable or plainly unjust.”

49. It must be emphasised that indicative sentences are not themselves amenable to appeal. Nevertheless, indicative sentences can be relevant in manifest excess appeals because they can support an applicant’s broader contention that there has been some error in an aggregate sentence. [1]

50. Indeed, it is now well established that an indicative sentence may inform whether error has been established in relation to an aggregate sentence. [2] As Beech-Jones J recognised in Lee (at [32]):

“Further, with an aggregate sentence, although the indicative sentences specified in accordance with s 53A(2) of the Sentencing Act are not themselves amenable to appeal, they can be a guide to whether error is established in relation to the aggregate sentence”. (Emphasis added.)

51. This is reflective of the applicant’s position here. But importantly, even if one or both of the indicative sentences are considered excessive in their own right, it does not necessarily follow that the aggregate sentence is manifestly excessive. [3] Equally, if neither of the indicative sentences are excessive, that does not preclude a finding that the aggregate sentence is manifestly excessive. [4] The fundamental question is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality involved in the offences. [5]

Consideration

52. In considering this ground of appeal, it is convenient to restrict the initial focus to her Honour’s indicative sentences for the two fraud offences. This will shed light on whether error has been established in respect of the aggregate sentence imposed. There is no suggestion that the other indicative sentences are too harsh.

The indicative sentences for Offences 3 and 5

53. For Offence 3, her Honour indicated a sentence of 3 years’ imprisonment. But for his early guilty plea, her Honour’s starting point was in fact about 3 years and 9 months’ imprisonment.

54. For Offence 5, her Honour indicated a sentence of 5 years and 3 months’ imprisonment. Taking the 25% discount that the applicant received for his early guilty plea, the “starting point” was 7 years’ imprisonment. On any view of it, this represents a severe sentence when keeping in mind the maximum penalty of 10 years.

Survey of other cases

55. It is useful to review other sentencing decisions to illustrate the typical characteristics of similar offences contrary to s 192E of the Crimes Act. Regrettably, the applicant’s offending was quite singular. It was not at all typical of offending under this section. I am unaware of any offence under s 192E having been committed by a prisoner in the context of threats of harm to another prisoner.

56. More typically, fraud offences are committed in what are euphemistically described as “white collar” circumstances where the offender uses their position of trust and professional skills to defraud an institution or corporation. In most of those circumstances, the offending is aggravated by the offender’s breach of trust and involves multiple fraudulent transactions which go undetected for many months and, quite commonly, for years.

57. A review of some of those more typical examples of offending under s 192E of the Crimes Act reveals a pattern of sentences which are significantly less severe than the indicative sentence in relation to Offence 5.

58. In Kareem v R [2022] NSWCCA 188, the appellant relevantly pleaded guilty to two offences contrary to s 192E(1)(b) of the Crimes Act, as well as to another offence contrary to s 193D(1) of the Crimes Act. The fraud involved the appellant falsely representing the identities of various applicants for credit, which caused the ANZ Bank a financial disadvantage. While the appellant was not defrauding his employer, “his profession as an accountant gave him a particular responsibility to not exploit financial services by criminal offending” (at [122] per Ierace J). The offending involved a total of $1,351,274 in loans and credit cards that were applied for and/or granted ($786,535.46 was granted, $548,714 was declined), resulting in a loss of $663,090 to the victim company. On appeal, the appellant was re-sentenced, after a 10% discount for his plea, to an aggregate sentence of 3 years and 7 months’ imprisonment with a non-parole period of 2 years.

59. In Dimitriou v R [2025] NSWCCA 18, the appellant was convicted after trial of an offence contrary to s 192E(1)(b) of the Crimes Act. He was a co-director of a financial services company and, between 30 November 2011 and 10 March 2012, he caused a financial disadvantage to ANZ Banking Group Pty Ltd in the sum of $1,867,491.50 by causing false information to be submitted in support of a loan application. The offending involved calculated and persistent deceptive conduct over several months. He was motivated by personal enrichment. The sentencing judge at first instance concluded that his offending fell within the mid-range of objective seriousness. The appeal was dismissed and the original sentence stood, which was a term of 3 years and 6 months’ imprisonment with a non-parole period of 2 years and 3 months.

60. In Michael Robert Holloway v R [2017] NSWCCA 17, the appellant was convicted after trial of 9 counts of fraud contrary to s 192E of the Crimes Act. He was the Chief Executive Officer of the Australasian branch of a freight forwarding business. He caused a number of false invoices to be created and instructed a subordinate to issue cheques in payment of the false invoices made out to cash. The cheques were cashed, and some of the proceeds were deposited into Mr Holloway’s personal account held jointly with his wife. He was sentenced on the basis that the financial advantage totalled $269,291.00 and the offences involved a degree of planning over a 10-month period. He received an aggregate sentence of 4 years’ imprisonment with a non-parole period of 2 years and 6 months.

61. Hughes v R [2021] NSWCCA 238 was a conviction appeal and thus it does not disclose all of the circumstances relevant to the sentencing exercise. Nevertheless, the appellant pleaded guilty to one “rolled up” count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act*.* After receiving a 25% discount, the appellant received a sentence of 2 years and 6 months’ imprisonment with a non-parole period of 18 months. The appellant was a practice manager at a medical centre and was responsible for all financial payments and transactions conducted by the business. On 329 occasions, over a period in excess of 6 years, she transferred funds from the business bank account to her personal accounts. Each transaction was falsely described by the appellant in the internal records system. The total amount obtained was $179,153.60.

62. Syed v R [2026] NSWCCA 47 involved a successful severity appeal where the applicant pleaded guilty to six “representative counts” of offences under s 192E(1)(b) of the Crimes Act*.* The applicant had been the financial controller of Crosby Textor Research Strategies Results Pty Ltd. In total, the six counts reflected the misappropriation of $182,492.50. There had been a late guilty plea, leading to a 10% discount to reflect the utility of the plea. The applicant succeeded on appeal, demonstrating that the sentencing judge had erred in finding that he “did not voluntarily desist” from offending and “stopped when his employment ceased”. This Court re-sentenced him to an aggregate term of 3 years and 9 months’ imprisonment, with a non-parole period of 2 years. The indicative sentences ranged from 14 months to 2 years.

63. Although these comparative cases are illustrative and only provide limited assistance, noting that each case is determined on its own merits, they do demonstrate a much less severe pattern of sentencing for offenders who practise professions that give them access to the opportunity to defraud their victims, compared to the indicative sentences in this case for Offences 3 and 5. Most of the offenders in the sample of cases, although without previous criminal convictions, were sentenced on the basis that they used their good character and positions of trust to advance their fraudulent conduct.

64. The applicant, on the other hand, was a man with a considerable record of prior offending, including terms of imprisonment, who had been hopelessly addicted to illicit drugs for very many years.

Are either of the indicative sentences excessive?

65. So then, the question arises as to whether either or both of the two relevant indicative sentences in this case are excessive or not.

66. In short, I am satisfied that the indicative sentence for Offence 3 was not excessive, but I have arrived at the opposite conclusion with respect to the indicative sentence for Offence 5.

67. First, the indicative sentence for Offence 3 was clearly within the range of available sentences. The applicant conceded that it was an “objectively serious” offence, as her Honour characterised it. Nor did the applicant call into question the series of factual findings which underpinned her Honour’s characterisation of the offending. I do not regard a starting point of 3 years and 9 months as being excessive given the number of transactions involved, the amount of money defrauded, the fact that the victim trusted the applicant and that the applicant had a bad record of previous offending, including having served a number of prison sentences.

68. Second, and as foreshadowed above, I consider the indicative sentence for Offence 5 is excessive – when viewed in isolation. There are a number of reasons for this. While the objective criminality of the offending was unquestionably high, it is troubling that rarely, if ever, do sentences for offences contrary to s 192E of the Crimes Act ever reach such a height, even allowing for the several ways in which those other cases can be distinguished from the instant case.

69. In my view, the starting point of 7 years’ imprisonment is disproportionate to the objective seriousness of the offending. Various factors point in this direction.

70. The first factor is the quantum of loss, which here was $10,800. Though not an insignificant sum of money – especially for this victim – it is considerably less than the quantum that courts routinely deal with in fraud cases under this section. This itself is not a determinative factor, but it is clearly of some significance. [6] Another significant, but not determinative factor, is the duration of the fraud. Here the applicant’s conduct resulted in three transactions over the span of a period of days. While bearing in mind the principle of individualised justice, it is instructive that fraudulent conduct is commonly practised over much longer periods of time, certainly more than a few days. It is also relevant that the applicant’s offending was not enabled by some position of trust or authority; he was an inmate in custody who was motivated by a desire to fund his drug addiction.

71. Of course, there are factors that point in the opposite direction as well. As her Honour found, the applicant’s conduct involved a degree of sophistication and planning. He took advantage of his cellmate’s sister and caused particular anxiety to his cellmate who was moved into a different part of the gaol, obviously believing that there was an active threat to his life. Also, the gaol discipline system more broadly was undermined. When his cellmate was moved into segregation, the applicant was able to offend - free from any real risk of detection from within the gaol. This gave credence to the applicant’s claims that his former cellmate was under serious threat of harm from criminals in custody. In all the circumstances, it was a devious, manipulative scheme. It caused the victim to be so afraid of the potential consequences to her brother that she felt compelled to comply with the applicant’s demands in order to save her brother from harm in gaol.

72. But, even so, one cannot lose sight of the fact that offences contrary to s 192E(1)(b) of the Crimes Act carry a maximum penalty of 10 years’ imprisonment. As serious as the offending was, the starting point, prior to the application of the discount, was outside the range of possible sentences, even accepting its objective seriousness and the fact that the applicant was not entitled to considerable leniency.

Is the aggregate sentence manifestly excessive?

73. As I have noted, the success of this ground depends not on any error in the indicative sentence or sentences, but instead it depends on whether error is established in the aggregate sentence itself. This involves an assessment of how her Honour dealt with important issues such as totality, concurrency and accumulation.

74. It is noteworthy that three victims were involved. All three women were impacted under different circumstances. Each pocket of offending, though, consistently involved serious dishonesty. MK had her belongings stolen from her in two different circumstances, one of which was when the applicant entered the residence in which she was living. The applicant’s then partner, SN, had money fraudulently funnelled out of her bank account over 52 transactions and was subjected to a disturbing pattern of harassment in a serious breach of an AVO. MR was manipulated in quite cunning circumstances, which resulted in the applicant receiving $10,800 while he was in custody.

75. For all of the offences, the sentencing judge imposed an aggregate sentence of 7 years and 2 months. There needed to be a significant degree of accumulation as the offending in relation to each victim was quite separate. Had her Honour wholly accumulated the indicative sentences, the aggregate sentence would have been about 12 years and 7 months. An aggregate sentence of 7 years and 2 months demonstrated quite a substantial degree of concurrency.

76. It was for the sentencing judge, in imposing the aggregate sentence, to determine the appropriate degree of accumulation. This Court has not been asked to intervene in that particular exercise of her Honour’s discretion for the purpose of this appeal. But in any case, it should be noted that where more than one victim is involved, as there was here, there will generally be a need for an increase in the otherwise appropriate aggregate sentence to meet the totality of the conduct involved. [7] In this case, it is my view that, even if an indicative sentence of somewhat less than 5 years and 3 months had been imposed for Offence 5, a properly aggregated sentence of no less than 7 years and 2 months was not unwarranted.

77. In conclusion, I am not satisfied that the aggregate sentence is manifestly excessive. It follows that the appeal must be dismissed. The need to re-sentence the applicant does not arise, even though I have found that the indicative sentence for Offence 5 is excessive.

78. In reaching this conclusion, I have followed what I understand to be the prevailing view in this Court that there is no need to embark upon a re-sentencing process in these circumstances. While members of this Court have expressed differing views on the issue, the prevailing view is that, even where an indicative sentence is determined to be excessive as a result of a latent error, it does not follow that the Court would proceed to re-sentence in circumstances where the aggregate sentence is not established to be manifestly excessive. [8] I have taken this same approach.

Orders

79. For these reasons, I propose the following orders:

80. Leave to appeal granted.

81. Appeal dismissed.

82. ROBERTS J**:** I agree with Kirk JA and Boulten J that the appeal should be dismissed. In this matter, whilst accepting that the appeal was against the aggregate sentence, the applicant contended that two of the individual indicative sentences were manifestly excessive, and that these sentences had assumed “prominence” in determining the aggregate sentence. As the authorities discussed by Boulten J above at [49]-[51] establish, whilst an excessive indicative sentence can support an applicant’s contention that the aggregate sentence is manifestly excessive, the fundamental question to be addressed by the Court is whether the aggregate sentence is manifestly excessive when viewed against the totality of the criminality involved in the offences. I agree, for the reasons Boulten J gives, that the aggregate sentence imposed upon the applicant is not unreasonable or plainly unjust.

**********

Endnotes

Dorsett v R [2024] NSWCCA 192 (“Dorsett”) at [159] (per N Adams J, Harrison CJ at CL agreeing).

JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528 (“JM”) at [40] (per R A Hulme J, Hoeben CJ at CL and Adamson J agreeing); Lee v R [2020] NSWCCA 244 (“Lee”) at [32] (per Beech-Jones J, Payne JA and Fagan J agreeing); AA v R [2024] NSWCCA 132 at [4] (per Ward P and Wilson J); Saleh v R [2026] NSWCCA 42 (“Saleh”) at [424] (per Free JA, Yehia J and R A Hulme AJ).

JM at [40(12)] citing PD v R [2012] NSWCCA 242 at [12] (per Beech-Jones J, Basten JA and Hall J agreeing) and BJS v R [2013] NSWCCA 123 at [252]-[254] (per Hoeben CJ at CL, Davies and Adamson JJ agreeing); Lee at [32]; KS v R [2024] NSWCCA 147 (“KS”) at [72]-[74] (per Adamson and Stern JA, Wright J).

Lee at [32].

Lee at [32]; Saleh at [433]-[434].

Whiley v R [2014] NSWCCA 164 at [39] (per Adams J, Bathurst CJ and Hoeben CJ at CL agreeing).

See Vaovasa v R [2007] NSWCCA 253; (2007) 174 A Crim R 116 at [16] (per Howie J, McLellan CJ at CL and Harrison J agreeing).

Dorsett at [177]; PN v R [2024] NSWCCA 86 (per Wilson J, Chen and Huggett JJ agreeing); KS at [74]; Saleh at [432].