Blundell v R

Case [2008] NSWCCA 92

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION:
Blundell v R [2008] NSWCCA 92
This decision has been amended. Please see the end of the judgment for a list of the amendments.

FILE NUMBER(S):
2007/3108

HEARING DATE(S):
12 and 14 December 2007

JUDGMENT DATE:
29 April 2008

PARTIES:
Richard James Blundell - Appellant
Regina - Respondent

JUDGMENT OF:
Grove J Hulme J Simpson J   

LOWER COURT JURISDICTION:
District Court

LOWER COURT FILE NUMBER(S):
06/11/0345

LOWER COURT JUDICIAL OFFICER:
Hughes DCJ

LOWER COURT DATE OF DECISION:
12 July 2007

COUNSEL:
J Conomos - Applicant
CP O'Donnell - Respondent

SOLICITORS:
Van Cooney Lawyer - Applicant
Comonwealth Director of Public Prosecutions - Respondent

CATCHWORDS:
CRIMINAL LAW - appeal against sentence - obtaining money by deception, fraudulent misappropriation, obtaining money by false or misleading statements - pleas of guilty - whether inadequate recognition given to subjective circumstances and consideration of alternate sentencing options - prosecution did not oppose community service - failure to take into account s 5(1) of the Sentencing Procedure Act and to consider alternatives to a fulltime custodial sentence - lengthy delay in finalisation of the proceedings - sentence quashed and community service ordered.

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

CASES CITED:

TEXTS CITED:

DECISION:

  1. Leave granted to the applicant to appeal against the sentences imposed

  2. Each sentence be quashed

  3. In lieu thereof, in respect of each offence direct the applicant to perform 100 hours of community service work

  4. The applicant is directed to report to the NSW Probation and Parole Service within 7 days

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2007/3108

GROVE J
HULME J
SIMPSON J

29 April 2008

BLUNDELL, Richard James v R

Judgment

  1. GROVE J:              I agree with Simpson J

  2. HULME J:              I agree with Simpson J

  3. SIMPSON J:  On 14 December 2007, the Court made the orders that appear at para 28 of this judgment.  What follows are my reasons for joining in those orders

  4. The applicant sought leave to appeal against sentences imposed upon him in the District Court on 12 July 2007 by Hughes DCJ following his pleas of guilty to charges brought by the Commonwealth Director of Public Prosecutions under the Crimes Act 1900 (NSW).

  5. The applicant pleaded guilty to all counts on an indictment alleging four offences of obtaining money by deception, contrary to s 178BA and asked, pursuant to Pt 3, Div 3 of the Crimes (Sentencing Procedure) Act 1999 (“the Sentencing Procedure Act”), that a further five offences (three against s 178BA, and one each against s 178A (fraudulent misappropriation) and s 178BB (obtaining money by false or misleading statements) listed on a Form 1 be taken into account.

  6. The maximum penalties prescribed by the Crimes Act in respect of the offences are: s 178A – imprisonment for 7 years; s 178BA – imprisonment for 5 years; s 178BB – imprisonment for 5 years.

  7. Hughes DCJ sentenced the applicant, on the first count on the indictment, to a period of imprisonment for 18…

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Details
AGLC
Blundell v R [2008] NSWCCA 92
Case
[2008] NSWCCA 92
Decision Date

CaseChat Overview and Summary

In the case of Blundell v R, the defendant, Blundell, appealed against his sentence imposed following a guilty plea to multiple charges including obtaining money by deception, fraudulent misappropriation, and obtaining money by false or misleading statements. The appeal centred on the contention that the trial judge did not adequately consider the subjective circumstances of the case and failed to explore alternative sentencing options. The prosecution did not oppose a community service sentence, yet the trial judge imposed a custodial sentence instead. Blundell argued that the trial judge did not take into account the provisions of section 5(1) of the Sentencing Procedure Act and did not adequately consider sentencing alternatives to full-time imprisonment.

The court had to determine whether the trial judge failed to adequately consider the subjective circumstances and alternative sentencing options. Specifically, the court needed to assess whether the trial judge's failure to explore community service, despite the prosecution not opposing it, was a significant error. Furthermore, the court considered whether the trial judge adequately applied section 5(1) of the Sentencing Procedure Act, which mandates consideration of all available sentencing options before imposing a custodial sentence. The court also evaluated whether the lengthy delay in finalising the proceedings had any bearing on the sentence.

The court found that the trial judge did not adequately consider the subjective circumstances and failed to explore all sentencing options. The court quashed the sentence and ordered that Blundell be required to perform community service instead. The court emphasised that the trial judge should have taken into account the subjective circumstances, the prosecution's non-opposition to community service, and the statutory requirement to consider all sentencing options before imposing a custodial sentence. The court concluded that the subjective circumstances and the available sentencing alternatives warranted a different outcome.

Orders

Orders of the court

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Background

Background to the litigation

In the applicant’s case his Honour stated that, were it not for the pleas of guilty, the overall sentence would have been of imprisonment for 2 years, which he discounted by 25 percent in recognition of the pleas of guilty. He found special circumstances pursuant to s 44(2) of the Sentencing Procedure Act, as a consequence of which he varied the ratio between the head sentence and the non-parole period there stated.The facts All offences on the indictments were committed over a period of a few months in 2002. The Form 1 offences were committed in 2000 and 2001. Despite the varying sections of the Crimes Act under which the charges were brought, and by reference to which the Form 1 offences were identified, all offences (committed by both brothers) were essentially the same. In each case the applicant who, with his brother, operated an insurance brokerage business, represented to a client that a particular kind of insurance would be (and had been) arranged, obtained from that client funds for payment of the premium, but failed to make the necessary arrangements or remit the funds to the insurance company, rather diverting the funds into a business or personal account. One consequence was that clients who believed that they had insurance cover against various contingencies were in fact uninsured. The amount involved in the applicant’s offences was $16,920.39, of which $8827.30 was attributable to the offences the subject of the indictment, and the balance of $8093.09, to the Form 1 offences. The amount involved in the offences committed by Paul Blundell was vastly higher, amounting in total to $146,000. This may have been because of the identity of the victims, who were the operators of licensed premises, where, it may be assumed, insurance premiums are significant. Subjective circumstances The applicant was born in October 1958. He is the older of the brothers by six years. He was 42 when his offending began, 42 when charged and 48 at sentencing. He has no previous convictions. He and his brother together operated an insurance brokerage business, a firm that had been established by their grandfather in 1972 and had remained in the family for three generations. He is the father of two adult children and lives in a de facto relationship. Following his being charged he lost his employment and was unemployed for about eight months. For a time he lived with his parents and relied upon them for money. Thereafter he has had employment in hotels in Moree and in Botany Bay. The applicant gave evidence in the sentencing proceedings. He said that he had suffered a great deal of embarrassment and personal anguish as a result of the break up of the family business and his loss of reputation. He had deposited, by way of reparation, the sum of $2000 in a solicitor’s trust account and offered to pay $100 a week. A large number of impressive testimonials were put before his Honour, all attesting to the applicant’s good character.The Remarks on Sentence

Evidence

Evidence Before The Court

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Decision

Reasons for decision

GROVE J

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Ratio Decidendi

Legal Principle Established

Established by: GROVE J

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