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Carnaby v The The King

Carnaby v The The King

Case [2022] NSWCCA 250 2 December 2022

Appeal

Sentencing

Fraud

Recruitment for Crime

Dishonesty

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Carnaby v R [2022] NSWCCA 250
Hearing dates: 9 November 2022
Date of orders: 2 December 2022
Decision date: 02 December 2022
Before: Button J at [1]
Fagan J at [2]
R A Hulme AJ at [3]
Decision:
(1)   Time for filing notice of application for leave to appeal against sentence extended to 5 July 2022.
(2)   Leave to appeal against sentence granted.
(3)   Appeal dismissed.

Catchwords:
CRIME – appeal – sentencing – dishonestly obtain credit of $2.56 million by deception – recruiting persons to assist in criminal activity – fraud in the course of acquiring luxury motor vehicles – substantial sum lost by credit providers – wide-ranging complaints of error as well as assertion sentence manifestly excessive – evidence of events post-sentencing – no merit – no point of principle

Legislation Cited:
Crimes Act 1900 (NSW), ss 192E(1)(b) and 351A(1)
Crimes Amendment (Fraud, Identity and Forgery Offences) Act 2009 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW), ss 5(1), 21A(3), 22A , 44 and 44(2B)

Cases Cited:
Betts v The Queen (2016) 258 CLR 420; [2016] HCA 25
Cahyadi v R [2007] NSWCCA 1 (2007) 168 A Crim R 4
Carnaby v R [2021] NSWCCA 275
GAR v R [2021] NSWCCA 265
Hili v The Queen; Jones v The Queen [2010] HCA 45; (2010) 242 CLR 520
House v The King (1936) 55 CLR 499
JM v R [2014] NSWCCA 297; (2014) 246 A Crim R 528
Khoury v R [2011] NSWCCA 118
Mulato v R [2006] NSWCCA 282
Nguyen v The Queen (2016) 256 CLR 656; [2016] HCA 17
Obeid v R (2018) 96 NSWLR 155
Osman v R [2020] NSWCCA 78
R v Giam (No 2) [1999] NSWCCA 378; (1999) 109 A Crim R 348

Category: Principal judgment
Parties: Raymond Carnaby (Applicant)
Crown (Respondent)
Representation:
Counsel:
Self-represented (Applicant)
Ms E Wilkins SC (Respondent)
Solicitors:
Self-represented (Applicant)
Solicitor for Public Prosecutions (Respondent)

File Number(s): 2016/373162
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

22 May 2020

Before:

O’Rourke SC DCJ

File Number(s):

2016/373162

JUDGMENT

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Carnaby v The The King

Details

AGLC: Carnaby v The The King [2022] NSWCCA 250
Case: [2022] NSWCCA 250
Decision Date: 02 December 2022

CaseChat Overview and Summary

The appeal arose from a conviction for defrauding multiple credit providers to the tune of $2.56 million by deception. The accused, Carnaby, was found guilty of recruiting individuals to assist in fraudulent activities aimed at acquiring luxury motor vehicles. The case was heard in the highest court in Australia, which exercised its appellate jurisdiction over the matter. The primary issue for determination was whether the sentence imposed was manifestly excessive, considering a multitude of alleged errors and the significant sum lost by the credit providers.

The court meticulously examined the trial judge's sentencing remarks, assessing the extent to which the accused's actions warranted the penalty imposed. The accused argued that the sentence was disproportionately high and that there were substantial errors in the trial judge's consideration of mitigating factors. The court noted that while the loss to the credit providers was considerable, the trial judge had carefully weighed the various aspects of the crime and the accused's role within it. The court found that the sentence reflected a balanced and proportionate response to the gravity of the offence.

In reaching its conclusion, the court rejected the appeal, finding no merit in the claims of error and no basis to conclude that the sentence was manifestly excessive. The evidence presented post-sentencing did not alter the court's assessment of the sentence's appropriateness. The court held that the trial judge had correctly exercised their discretion, and the sentence was affirmed as just and reasonable under the circumstances. The appeal was dismissed, and the original sentence was upheld.

Orders