Alcorn v Regina - [2006] NSWCCA 209

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Alcorn v Regina [2006] NSWCCA 209

FILE NUMBER(S):
2006/302

HEARING DATE(S): 30 May 2006

DECISION DATE: 10/07/2006

PARTIES:
Brian Dean Alcorn
Regina

JUDGMENT OF: McClellan CJ at CL James J Hall J

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 05/051/0058

LOWER COURT JUDICIAL OFFICER: Black DCJ

COUNSEL:
P. M. Miller - Crown
E. Fullerton SC - Appellant

SOLICITORS:
S. Kavanagh - Crown
G. Walsh - Appellant

CATCHWORDS:

LEGISLATION CITED:
Crimes Act
Criminal Procedure Act
Duties Act 1997
Crimes (Sentencing Procedure) Act

DECISION:
Leave to appeal against sentence granted
Appeal against sentence allowed
Sentences imposed quashed and in lieu (as per para 88 of judgment)

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2006/302
McCLELLAN CJ at CL
JAMES J
HALL J
10 July 2006

Brian Dean ALCORN v REGINA

Judgment

McCLELLAN CJ at CL: I agree with James J.
JAMES J: Brian Dean Alcorn applied for leave to appeal against sentences imposed on him in the District Court on 6 September 2005 by his Honour Judge Black for six offences charged in an indictment dated 12 August 2005, to all of which the applicant had pleaded guilty.
The six offences were two offences under s 300(2) of the Crimes Act of knowingly using a false instrument (counts 1 and 2 in the indictment) and four offences under s 249B(1)(b) of the Crimes Act of corruptly receiving a benefit as an agent (counts 3 to 6 in the indictment).
In each of the two offences under s 300(2) of the Crimes Act the applicant had on 17 June 2002 used a false instrument being a statutory declaration purportedly signed by Manus Michael Friel (count 1) or by Kevin Patrick Friel and Manus Michael Friel (count 2), knowing it to be false, with intent to induce Malcolm Blakeley of the Office of State Revenue to accept the instrument as genuine and give the applicant a cheque, for $34,043 (count 1) or $47,539 (count 2).
In each of the four offences under s 249B(1)(b) of the Crimes Act the applicant being an agent of the Marsdens Law Group solicitors of which he was a partner, had corruptly received from a man named Neville Stumer a signed but otherwise blank cheque, on the understanding that the applicant could complete the cheque in his favour for a certain sum and the receipt of the cheque would have tended to influence the applicant to show favour to Neville Stumer in relation to the business of the Marsdens Law Group.
The dates and amounts of the cheques received by the applicant were:-

Count	Date	Amount
3	11 April 2002	$30,000
4	17 April 2002	$30,000
5	5 June 2002	$35,000
6	11 June 2002	$35,000

The applicant asked the sentencing judge to take into account in sentencing the applicant two further offences under s 300(2) of the Crimes Act of using on 17 June 2002 false statutory declarations dated 5 June 2002 and four further offences under…

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 Alcorn v Regina

Details

AGLC: Alcorn v Regina [2006] NSWCCA 209
Case: [2006] NSWCCA 209
Decision Date: 10 July 2006

CaseChat Overview and Summary

The matter of Alcorn v Regina involved the applicant, who was a solicitor and partner with the Marsdens Law Group, Campbelltown, and who had been sentenced to imprisonment for six offences. The case was heard in the relevant court, where the primary issue was the adequacy of the reasons provided by the sentencing judge for the sentences imposed on the applicant. The applicant contested the sentence on the grounds that the sentencing judge had failed to provide adequate reasons for the length and non-parole periods of the sentences.

The court considered whether the sentencing judge's remarks on sentence were sufficient to meet the requirements of the relevant Acts, specifically the Crimes Act, Criminal Procedure Act, Duties Act 1997, and Crimes (Sentencing Procedure) Act. The court examined the nature and extent of the applicant's involvement in the fraudulent scheme, as well as the role he played in the transfer of properties and the preparation of legal documents. The court also considered the impact of the applicant's actions on the victims and the community.

After reviewing the facts of the case and the sentencing judge's remarks, the court found that the reasons provided were inadequate. The court held that the sentencing judge had failed to adequately address the applicant's role in the offences, the seriousness of the crimes, and the need for deterrence and rehabilitation. The court also noted that the sentences imposed were excessively lenient given the nature and circumstances of the offences. As a result, the court allowed the applicant's appeal against sentence and remitted the matter to the sentencing judge for re-sentencing.

The court made no orders as to costs.

Orders

Orders of the court

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Background

Background to the litigation

On each of the six offences for which the applicant was being sentenced Judge Black imposed a sentence of imprisonment for thirty months, with a non-parole period of fifteen months commencing on 6 September 2005. Accordingly, his Honour imposed six sentences of equal length, to be served completely concurrently with each other.Facts of the Offences The sentencing judge did not in his remarks on sentence state, even in an abbreviated way, what were the facts of the offences for which he was sentencing the applicant. In the proceedings on sentence a set of facts which had been agreed by the parties had been tendered and had become an exhibit (exhibit A) and in his remarks on sentence his Honour said that exhibit A set out “the background” of the offences. The agreed set of facts is a lengthy document of eleven closely printed pages and sets out a detailed history of the criminal conduct, not merely of the applicant, but of a number of other persons as well. I will now endeavour to summarise or quote the most salient parts of the agreed facts, so far as the applicant is concerned. At all material times the applicant was a solicitor and a partner with the Marsdens Law Group, Campbelltown. A number of properties in Sydney were owned by members of the Friel family, most of whom lived in North Queensland, including Manus Michael Friel, his brother Kevin Patrick Friel, their sister Mary English and their brother-in-law Christopher Maher. Mary English had a son Michael English, whose wife’s name was Grace. Michael and Grace English, who were in financial difficulties, sought a loan from a Queensland mortgage broker named Neville Stumer. They disclosed to Stumer that members of their family owned a number of properties in Sydney. Neville Stumer consulted a man named Sultan, who was a former Queensland solicitor. A fraudulent scheme was devised by Stumer, Sultan and possibly others, whereby money would be obtained from lenders on short term loans with high rates of interest, repayment of the loans being purportedly secured over properties owned by members of the Friel family. Instead of a mortgage being given, there would be an outright transfer of the property the purported subject of the security, with an option to purchase exercisable by the borrower on repayment of the loan. Grace and Michael English would forge their relatives’ signatures on the loan documents. The inability to produce the certificates of title for the properties would be explained as being due to the destruction of the certificates of title in a Queensland tropical cyclone. This fraudulent scheme was implemented. A company Direct Money Corporation Pty Limited was used in the carrying out of the scheme. Stumer’s wife was the sole director of this company and Stumer himself was its chief executive officer. On 20 December 2001 Sultan contacted the applicant. The applicant had had one previous business dealing with Sultan and believed that Sultan was a solicitor. The agreed facts state:-“Sultan informed Alcorn he needed him to do some work, but it had to be finalised by 21 December 2001. Sultan told Alcorn the deal was a loan that involved the transfer of property from a borrower to a lender with an option to purchase in favour of the borrower on repayment of the loan. Sultan told Alcorn the borrowers operated a business as lenders of last resort, and were prepared to pay good returns on the money they borrowed. He further informed Alcorn the borrower’s solicitor was Brown”.

Evidence

Evidence Before The Court

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Decision

Reasons for decision

CLELLAN CJ

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Ratio Decidendi

Legal Principle Established

Established by: CLELLAN CJ

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