Raine v R

1. [1]

   BRERETON JA: On 14 August 2019, at the conclusion of the hearing, the Court unanimously refused leave to appeal, and reserved its reasons. My reasons for joining in that order are reflected in those of Lonergan J, with which I agree. I wish to add only some observations as to why, in my opinion, this was a case in which it was appropriate to refuse leave to appeal, as distinct from granting leave and dismissing the appeal.

2. [2]

   The purpose of a requirement for leave to appeal is generally to serve as a filter on unmeritorious or trifling appeals, so as to restrict the appeal procedure to appropriate matters and thereby promote the efficiency of the Court’s appeal procedures. [1] The (NSW) Criminal Appeal Act 1912 provides a convicted person with an appeal from conviction as of right on a question of law, and otherwise, including from sentence, by leave of the Court. That manifests an intention that while a conviction appeal which raises a question of legal principle should be available as of right, otherwise the filter of leave should apply.

3. [3]

   Most principles concerning leave to appeal have been developed in the context of interlocutory appeals in civil matters, and considerable caution is required in their application in the context of appeals to a Court of Criminal Appeal from final convictions and sentences in criminal matters. As Deane and Gaudron JJ observed in Coulter: [2]

4. [4]

   In other words, leave would not be refused in a criminal appeal if it appeared that there had been a miscarriage of justice warranting the quashing of a conviction. [3]

5. [5]

   In the context of sentence appeals, in Bailey v Director of Public Prosecutions (NSW), [4] Mason CJ, Brennan, Dawson and Toohey JJ said:

6. [6]

   It is the practice of this Court to permit full argument of the issues on the application for leave as if it were the hearing of the appeal, so that if leave be granted, the appeal has been heard concurrently. As a result, leave is granted relatively liberally. Nonetheless, consistent with the purpose served by the requirement for leave, it is appropriate to refuse leave in respect of an appeal which has no prospects of success, is unmeritorious, is vexatious, or is trifling.

7. [7]

   In this case, the applicant’s grounds were fully elaborated and considered. As Lonergan J’s reasons demonstrate, grounds 3 and 4 had no prospects of success: the fraudulent scheme, as described in the remarks of the sentencing judge, was a clever and sophisticated one, which went undetected for years; and it involved the flagrant abuse of a position of trust and responsibility which gave the applicant the knowledge and access to perpetrate it. Grounds 1 and 2 were not only without prospects of success – as the applicant’s role was plainly and unarguably substantially longer in duration, greater in quantum and, above all, more significant in the formulation, design, instigation and implementation of the fraudulent scheme than his wife’s – but they also involved an attempt to depart from the basis on which the sentencing proceedings had been conducted, in which the present applicant had joined in an approach which sought to mitigate his wife’s culpability relative to his own, in circumstances where they were both well-advised and ably represented by experienced counsel. In that context, it would be offensive to notions of justice to permit him now to advance a different case on appeal.

8. [8]

   JOHNSON J: I joined in the order made at the conclusion of the hearing on 14 August 2019 refusing the application for leave to appeal against sentence generally for the reasons contained in the judgment of Lonergan J.

9. [9]

   LONERGAN J: On 14 August 2019 the Court heard argument in support of an application for leave to appeal from the sentence imposed by Lakatos DCJ on 15 February 2018.

10. [10]

    This Court refused leave to appeal on the basis that none of the grounds of appeal had any prospect of success and that two of the four grounds relied upon were inconsistent with the case made before the sentencing judge. The Court stated that reasons would be published at a later time and this judgment contains my reasons for joining in that order.

11. [11]

    Given that leave was refused, my analysis of the facts and submissions will be shorter than they would have been if leave was granted.

The sentences of the applicant and his co-offender

1. [12]

   The applicant was charged with dishonestly obtaining financial advantage by deception pursuant to s 192E(1)(b) of the Crimes Act 1900 (NSW). This attracts a potential maximum penalty of 10 years imprisonment. No standard non-parole period applies.

2. [13]

   The criminal activity involved the systematic defrauding by the applicant of his employer Tabcorp between 16 January 2013 and 17 July 2016. By the time the applicant was apprehended, he had successfully obtained $682,923. The offending ceased on arrest and not before.

3. [14]

   The applicant also had taken into account on a Form 1 a single offence of possess prohibited drug (0.11 grams of methylamphetamine) in contravention of s 10(1) of the Drug Misuse and Trafficking Act 1985 (NSW).

4. [15]

   His Honour sentenced the applicant to a period of imprisonment of three years and six months, with a non-parole period of two years and four months commencing on 12 December 2017, with the non-parole period expiring on 11 April 2020 and the head sentence expiring on 11 June 2021.

5. [16]

   The applicant was sentenced together with a co-offender, his wife, Talanoa Raine (“Talanoa”).

6. [17]

   Talanoa was sentenced to a period of two years imprisonment with a non-parole period of one year and three months commencing on 12 December 2017. The non-parole period expired on 11 March 2019 and the head sentence expired on 11 December 2019.

7. [18]

   Both were represented at the sentencing hearing by the same junior counsel and very experienced senior counsel.

8. [19]

   They both pleaded guilty to a charge contrary to the same statutory provision, although as noted by the sentencing judge, the wording of the charges on the respective court attendance notices was slightly different. The sum involved in the applicant’s “rolled up” count was approximately $54,000 more than Talanoa and he had been pursuing the fraud for a year longer than Talanoa.

The Facts found by the Sentencing Judge about the “system”

1. [20]

   At the sentencing hearing, an Agreed Statement of Facts was tendered. The sentencing judge relevantly summarised that Statement, highlighting the role of the applicant, the use he made of the trusted position he held with Tabcorp and the way the deception scheme was designed and perpetuated by him:

The Grounds of Appeal

1. [21]

   The applicant raised 4 grounds of appeal. Grounds 1 and 2 are interrelated:

   1. (1)

      The learned sentencing judge incorrectly assessed the role of the applicant by finding that the co-offender was a “lesser partner” or “follower”;

   2. (2)

      The applicant has a justifiable sense of grievance in that his sentence and that of the co-offender lacked parity given their respective roles in the offence;

   3. (3)

      The learned sentencing judge erred in determining the objective criminality as “sophisticated” without taking into account clear indicia of lack of sophistication; and

   4. (4)

      The learned sentencing judge erred in that he mischaracterised the level of responsibility of the applicant’s position as an employee.

The Remarks on Sentence

1. [22]

   The applicant’s role in the fraud commenced on 16 January 2013 and continued to 17 July 2016. The sum involved was $682,923. Talanoa’s role commenced on 9 January 2014. The amount involved in her role was $629,000. Neither offender had any criminal history prior to this, save that the applicant had a minor and irrelevant matter in the Queensland Magistrates Court. Both were given a 25% discount for their early guilty plea.

2. [23]

   Reference was made to the applicant having completed a Bachelor of IT at Bond University and a Bachelor of Education, graduating in 2003. He worked for several years as a high school maths teacher and an IT teacher. [6] After working in an (unsuccessful) business with his wife for a short period, the applicant and his wife relocated to Sydney in 2011.

3. [24]

   The applicant began working at Tabcorp in November 2011, initially casually in technical support but then as a permanent part-time employee in 2014. [7]

4. [25]

   The sentencing judge referred to a psychologist’s report that recorded that the applicant told her that he realised soon after beginning work for Tabcorp that he would be able to access unclaimed winnings, but did not act upon this knowledge until 2013. [8] He also told the psychologist that he saw the fraud as a way of handling financial problems and that it escalated in the last six months. He reported feeling ashamed and embarrassed about the offences and stated that his greatest concern prior to the sentencing hearing was avoiding custody for his wife because “he felt responsible for involving her”. [9]

5. [26]

   The sentencing judge detailed a number of aggravating factors that were particular to the applicant’s role in the fraud:

6. [27]

   His Honour specifically noted:

7. [28]

   His Honour also dealt with the submission made by Mr Terracini that the criminal activity was not sophisticated. He rejected that submission with clear and cogent reasons:

8. [29]

   His Honour noted the remarks of Bathurst CJ in Johnston v R [2017] NSW CCA 53 at [70] to the effect that there is a need to consider more seriously a “rolled up charge” where there has been “a systematic defrauding of the applicant’s employer in circumstances where he was in a position of trust”.

9. [30]

   When assessing objective seriousness, his Honour noted that there were six matters to be taken into account; the different sums of money involved with the applicant as opposed to his wife; that it was unclear whether the losses are retrievable and to what extent; the motive was common, being to acquire funds initially for financial reasons; the degree of planning and sophistication which applies only to the applicant because “he was clearly in a position of (trust) with his employer Tabcorp and abused that position”; and sixth, the impact of the criminal offending upon public confidence in the betting system.

10. [31]

    His Honour concluded:

Ground 2: The applicant has a justifiable sense of grievance in that his sentence and that of the co-offender lack parity given their respective roles in the offence.

1. [32]

   It is convenient to deal with grounds 1 and 2 together. In support of these grounds, the applicant emphasised the similarity in role by reference to the overall sums of money collected, noting that the money taken was being used for the joint purpose of purchasing a new home for both of them to live in.

2. [33]

   The applicant argued that Talanoa is responsible for at least 92% of the overall fraud, and in the period that she was involved, the amounts taken accelerated. This should have led to his Honour inferring that Talanoa was a partner and not a follower in the joint criminal enterprise. It was argued that there were other indicia of equal partnership. There was coordination between the two of them in making claims and collecting proceeds from the TAB outlets. On one occasion one of the cheques was drawn in favour of Talanoa’s sister in New Zealand in order to “launder” the money. Talanoa was well aware of the detailed processes that were being used at their home to create the forged tickets and this also underscores the joint nature of the undertaking.

3. [34]

   There are a number of fundamental problems with this submission. As noted by the Crown, the applicant and the co-offender were each represented by the same very experienced senior counsel (and junior counsel) at the sentencing proceedings. The written and oral submissions proceeded on the basis that the applicant engaged in the offending over a longer period of time and obtained a greater financial advantage than Talanoa. The applicant introduced Talanoa into an activity that he had already designed and established and had pursued, in all its intricacies, for a year before involving her in its execution.

4. [35]

   At the sentencing hearing senior counsel then appearing for the applicant made specific reference to R v Goundar (2001) 127 A Crim R 331; [2001] NSWCCA 198 at [33] in support of the analysis urged on the court that Talanoa was a “follower”:

5. [36]

   In the context of that authority, senior counsel unambiguously submitted that Talanoa can be seen as having had a lesser level of involvement and role in the offending conduct and so the court might rightly find that she joined an ongoing offence as a “follower rather than being a ring-leader or someone abusing some form of inside knowledge”. Clearly the reference to “ringleader” and “inside knowledge” was a valid description of the more major role of the applicant.

6. [37]

   Talanoa’s lesser role was emphasised on a number of occasions during the oral submissions on sentence, including disavowing coercion but submitting that if the applicant had not been involved in and had not been associated with Tabcorp, it would have been literally impossible for Talanoa to become involved at all.

7. [38]

   There is another fundamental problem with Grounds 1 and 2. As stated in Zreika v R (2012) 223 A Crim R 460; [2012] NSWCCA 44:

8. [39]

   Counsel appearing before this Court sought to present a completely different analysis and different arguments to the position taken on sentence before Lakatos DCJ. That is not permissible.

9. [40]

   The sentencing judge assessed the facts with care and made specific findings regarding the respective roles of the applicant and the co-offender. Not only was his Honour correct in concluding that the applicant was a leader and his wife a follower in the enterprise, but counsel appearing at the sentencing hearing for the applicant clearly presented that as the true position. Grounds 1 and 2 are rejected.

Ground 3: The learned sentencing judge erred in determining the objective criminality as “sophisticated” without taking into account clear indicia of lack of sophistication.

1. [41]

   The applicant argued that there was a lack of sophistication and that the plan was naïve and would be discovered and was doomed to fail. There was a failure to consider the likelihood of Talanoa being seen on CCTV collecting the money, and there was no effort made by the applicant to conceal his electronic signature, thus allowing his detection.

2. [42]

   This ground must be rejected. The sentencing judge’s analysis of this issue was cogent and without error. [15] There was sophistication in both the hatching and birth of the plan and its repeated execution. It required the use of technical skills and high order thinking to identify the loophole in the system and to cleverly and accurately recreate the fraudulent copies repeatedly and for three and a half years without detection.

Ground 4: The learned sentencing judge erred in that he mischaracterised the level of responsibility of the applicant’s position as an employee.

1. [43]

   This ground too must be rejected. As stated by the sentencing judge, the applicant had both skills and the access that came with his trusted position at Tabcorp. [16] The submission that he was a “backroom employee” was rightly rejected. Obviously a skilled technical expert, with the unsupervised access that the applicant had to betting systems and potentially large amounts of unclaimed cash winnings, is in an important position at Tabcorp. It was, as correctly identified by his Honour, the systematic defrauding of his employer where he was in a position of access and trust.

Order

1. [44]

   The order made on 14 August 2019 was:

   1. (1)

      Leave to appeal is refused.