Adams v The Queen - [2019] NSWCCA 295

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Adams v R [2019] NSWCCA 295
Hearing dates: 9 September 2019
Date of orders: 19 December 2019
Decision date: 19 December 2019
Before: Bathurst CJ at [1]
Fullerton J at [2]
Bellew J at [64]
Decision:
1. Leave to appeal granted
2. Appeal dismissed

Catchwords: CRIMINAL LAW – appeals – appeal against sentence – applicant convicted of one count of conspiracy to cheat and defraud the beneficiaries of an estate – applicant insinuated herself into the life of an ageing and dementia-afflicted woman – forged will – applicant sentenced to seven years’ imprisonment with a non-parole period of five years – whether the sentencing judge erred in his assessment of objective seriousness – whether the sentencing judge misconstrued the applicant’s role in the conspiracy – paucity of evidence as to how the applicant and her co-conspirators insinuated themselves into the deceased’s life – sentencing judge described the applicant’s conduct as wicked – open to the sentencing judge to describe the applicant’s conduct in terms reflecting his strong reprobation of her conduct – no error shown – whether the sentence imposed was manifestly excessive – whether the sentencing judge should have taken into account the applicant’s depressive disorder – where no such submission was advanced on sentence – comparable cases did not support a finding of manifest excess – appeal dismissed
Legislation Cited: Crimes Act 1900
Cases Cited: Archer v R [2017] NSWCCA 151
House v The King (1936) 55 CLR 499; [1936] HCA 40
Page v R [2007] NSWCCA 175
R v Quinn [2018] NSWCCA 297
Thangavelautham v R [2016] NSWCCA 141
Vella v R; Siskos v R [2015] NSWCCA 148
Zreika v R [2012] NSWCCA 44
Category: Principal judgment
Parties: Victoria Anne Adams (Applicant)
The Crown (Respondent)
Representation:
Counsel:
L Fernandez (Applicant)
B Baker (Crown)
Solicitors:
Michael Bowe (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2015/61513
Decision under appeal

Court or tribunal:

District Court

Date of Decision:

22 June 2017

Before:

Sutherland DCJ

File Number(s):

2015/61513

Judgment

BATHURST CJ: I agree with the orders proposed by Fullerton J and with her Honour’s reasons.
FULLERTON J: The applicant, Victoria Anne Adams, seeks leave to appeal a sentence of 7 years with a non-parole period of 5 years imposed by Sutherland DCJ on 22 June 2017 after she was convicted by a jury of a common law conspiracy to cheat and defraud the beneficiaries of the Estate of the late Edna Pearson between 19 October 2005 and 24 February 2011.
There is no appeal against conviction.
The maximum sentence for a conspiracy at common law is at large. The substantive offence comprehended by the conspiracy, namely dishonestly obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW), carries a maximum penalty of 10 years’ imprisonment.
Although the applicant was charged with conspiring with three people (being Louise Johan, her aunt, Anthony D’Souza and her father, Alex Johan) she was…

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 Adams v The Queen

Details

AGLC: Adams v The Queen [2019] NSWCCA 295
Case: [2019] NSWCCA 295
Decision Date: 19 December 2019

CaseChat Overview and Summary

In the matter of Adams v The Queen, the applicant appealed against the sentence imposed by the sentencing judge following her conviction for conspiracy to cheat and defraud the beneficiaries of an estate. The applicant had manipulated an elderly woman with dementia and facilitated the forging of a will to her advantage. The sentencing judge handed down a term of seven years' imprisonment, with a non-parole period of five years. The applicant contended that the sentencing judge erred in his assessment of the objective seriousness of her crime, misconstrued her role in the conspiracy, and failed to consider her depressive disorder. The applicant also argued that the sentence was manifestly excessive.

The legal issues before the court included whether the sentencing judge erred in his assessment of the objective seriousness, misconstrued the applicant’s role in the conspiracy, and failed to consider her depressive disorder. Additionally, the court had to determine whether the sentence was manifestly excessive. The court examined the evidence and the sentencing judge’s reasoning, and noted the lack of detailed evidence regarding how the applicant and her co-conspirators had manipulated the deceased. The court found that it was open to the sentencing judge to describe the applicant’s conduct in terms reflecting strong reprobation, and that the description of the conduct as wicked did not indicate error. The court also found that the sentence was not manifestly excessive, as there was no submission made regarding the applicant’s depressive disorder during sentencing, and comparable cases did not support a finding of manifest excess.

The appeal was dismissed. The court found no error in the sentencing judge’s assessment of the objective seriousness of the crime, the description of the applicant’s conduct, or the sentence imposed. The court held that the sentence was not manifestly excessive, and that no consideration of the applicant’s depressive disorder was required in the circumstances. The appeal was therefore dismissed, and the original sentence upheld.

Orders