Gaffney, Brendan Eamon v The Queen - [2009] NSWCCA 160

New South Wales
Court of Criminal Appeal

CITATION: GAFFNEY, Brendan Eamon v R [2009] NSWCCA 160

HEARING DATE(S): 7 November 2009

JUDGMENT DATE:
10 June 2009

JUDGMENT OF: McClellan CJatCL at 1; Hall J at 2; Harrison J at 3

DECISION: 1. Grant leave to appeal and allow the appeal.
2. Quash the sentences imposed upon the applicant by his Honour Woods DCJ on 31 August 2007.
3. In lieu thereof the applicant is sentenced to the following terms of imprisonment:
(a) On Count 1: To imprisonment for 3 years and 9 months with a non-parole period of 3 years from 31 August 2007 to 30 August 2010 and a balance of term of 9 months from 31 August 2010 to 30 May 2011.
(b) On Count 8: To imprisonment for 3 years and 6 months with a non-parole period of 3 years from 31 August 2008 to 30 August 2011 and a balance of term of 6 months from 31 August 2011 to 28 February 2012. The sentence for this offence takes into account the eight additional offences on the Form 1.
(c) On Counts 2, 3, 4, 5 and 6: To imprisonment for 3 years with a non-parole period of 2 years from 31 August 2010 to 30 August 2012 and a balance of term of 1 year from 31 August 2012 to 30 August 2013.
(d) On Count 7: To imprisonment for 1 year and 6 months with a non-parole period of 1 year from 28 February 2011 to 27 February 2012 and a balance of term of 6 months from 28 February 2012 to 30 August 2012.
Accordingly, the first date upon which the applicant will be eligible for parole is 30 August 2012.

CATCHWORDS: CRIMINAL LAW – sentencing– appeal against severity of sentence – eight counts of obtain financial advantage by deception – bank officer in a position of trust involving sums in excess of $3.7M – total non-parole period of 5 years for all counts plus "global" balance of term of 3 years imposed – no facility for doing so – sentences not in accordance with principles in Pearce v R - whether manifestly excessive – applicant re-sentenced to 6 years with a non-parole period of 5 years.

LEGISLATION CITED: Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999
Criminal Appeal Act 1912

CATEGORY: Principal judgment

CASES CITED: Dunn v Regina [2007] NSWCCA 312
Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
R v McDonald (1994) 71 A Crim R 370
R v Moon (2000) 117 A Crim R 497

PARTIES: Brendan Eamon Gaffney (Applicant)
Regina (Respondent)

FILE NUMBER(S): CCA 2007 / 4290

COUNSEL: H K Dhanji (Applicant)
P W C Calvert (Respondent)

SOLICITORS: S O'Connor, Solicitor for Legal Aid New South Wales (Applicant)
S Kavanagh, Solicitor for Public Prosecutions (Respondent)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 07/11/0048

LOWER COURT JUDICIAL OFFICER: Woods DCJ

LOWER COURT DATE OF DECISION: 31 August 2007 (date of sentence)

2007/ 4290

McCLELLAN…

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 Gaffney, Brendan Eamon v The Queen

Details

AGLC: Gaffney, Brendan Eamon v The Queen [2009] NSWCCA 160
Case: [2009] NSWCCA 160
Decision Date: 10 June 2009

CaseChat Overview and Summary

The case of Gaffney, Brendan Eamon v The Queen involves an appeal against the severity of a sentence imposed on the applicant for eight counts of obtaining financial advantage by deception. The applicant, a former bank officer, abused his position of trust to defraud his employer of over $3.7 million. The primary legal issue before the court was whether the total non-parole period of 5 years for all counts, along with a "global" balance of term of 3 years, was manifestly excessive and in breach of the principles outlined in Pearce v The Queen. The court was required to determine if the original sentence deviated from the established judicial norms and if the applicant was deserving of a re-sentencing.

The court, in its analysis, considered the unique circumstances of the case, including the substantial sums involved, the breach of trust by a bank officer, and the principles of cumulative sentencing. It noted that the original sentence did not provide a facility to account for the overlap between counts, which is essential for a fair assessment under Pearce v The Queen. The court held that the sentences imposed did not align with the established principles and were, therefore, manifestly excessive. As a result, the applicant was re-sentenced to a total of 6 years, with a non-parole period of 5 years, reflecting a more appropriate application of the sentencing principles.

The decision underscores the importance of adhering to the principles of sentencing in cases involving multiple counts of deception, particularly where the offender holds a position of trust and the sums involved are significant. The court's re-sentencing reflects a correction to ensure the punishment is commensurate with the offence and consistent with legal precedents. The final orders of the court mandated the re-sentencing of the applicant, ensuring the sentence met the requisite standards of fairness and proportionality.

Orders