NEW SOUTH WALES COURT OF CRIMINAL APPEAL
CITATION:
McGuiness v R [2008] NSWCCA 80
FILE NUMBER(S):
2007/00005384
HEARING DATE(S):
20/3/08
JUDGMENT DATE:
11 April 2008
PARTIES:
Cheryl Christine McGuiness (Applicant)
Regina (Respondent)
JUDGMENT OF:
Bell JA Simpson J Rothman J
LOWER COURT JURISDICTION:
District Court
LOWER COURT FILE NUMBER(S):
07/51/0138
LOWER COURT JUDICIAL OFFICER:
Black DCJ
COUNSEL:
Mr A Bellanto QC / Ms J Ghabrial (Applicant)
Mr L Crowley (Respondent)
SOLICITORS:
Somerville Laundry Lomax, Solicitors (Applicant)
Cth DPP (Respondent)
CATCHWORDS:
CRIMINAL LAW - fraud offences
SENTENCING - appeal against severity of sentence - no question of general principle
LEGISLATION CITED:
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912 (NSW)
Criminal Code Act
Criminal Code by the Criminal Code Amendment (Theft, Fraud, Bribery and Related Offences) Act 2000 (Cth)
CASES CITED:
Lowe v R (1984) 154 CLR 606
Pearce v R (1998) 194 CLR 610
R v Blaire (unreported), Court of Criminal Appeal, 20 November 1987
R v Formosa [2005] NSWCCA 363
R v Kerr [2003] NSWCCA 234
R v Winchester (1992) 58 A Crim R 345
Shaopang Yin v R [2007] NSWCCA 350
Spinks v R [2007] NSWCCA 52
TEXTS CITED:
DECISION:
1. Grant leave to appeal;
2. Allow the appeal;
3. Quash the sentences imposed in the District Court on counts 1, 6 and 7 and confirm the sentences imposed on counts 2, 3, 4 and 5;
4. On count 1 sentenced to six months’ imprisonment to commence on 23 November 2007 and to expire on 22 May 2008;
5. Confirm the sentences of three months dating from 23 November 2007 on counts 2, 3, 4 and 5. Such sentences will expire on 22 February 2008;
6. On count 6 the applicant is sentenced to six months’ imprisonment to date from 23 February 2008. That sentence will expire on 22 August 2008;
7. On count 7 the applicant is sentenced to nine months’ imprisonment to date from 23 February 2008. That sentence will expire on 22 November 2008;
8. Direct the applicant’s release forthwith on her entering into a recognizance self in the sum of $50.00 to be of good behaviour for the balance of the sentence until 22 November 2008;
JUDGMENT:
IN THE COURT OF
CRIMINAL APPEAL
CCA 2007/00005384
BELL JA
SIMPSON J
ROTHMAN JFriday 11 April 2008
Cheryl Christine McGuiness v The Queen
Judgment
THE COURT: On 20 March 2008 the Court made orders granting leave to appeal against the severity of sentences imposed on the applicant for social security fraud offences and allowed her appeal. The sentences imposed for the offences charged in counts 1, 6 and 7 were quashed and in lieu thereof sentences amounting in total to a term of 12 months’ imprisonment with a recognizance release order, which took effect on 20 March, after the applicant had served just under four months’ imprisonment were imposed. These are the reasons for the making of those orders.
The applicant pleaded guilty to seven offences. Each offence related to her receipt of the partner…
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- McGuiness v R [2008] NSWCCA 80
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- [2008] NSWCCA 80
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CaseChat Overview and Summary
The court examined the nature of the offences, the applicant's conduct, and the principles of sentencing. The court noted that the applicant had knowingly failed to notify the Agency of her employment and income, leading to her receiving benefits at a higher rate than she was entitled to. The court also considered the fact that the applicant had entered a plea of guilty, which resulted in a discount to the sentence. The court further acknowledged that the applicant had not acted with malice and had cooperated with the authorities.
The court found that while the sentence was severe, it was justified given the seriousness of the offences and the need for deterrence. The court concluded that the sentence reflected the principles of general deterrence and specific deterrence, and it was not manifestly excessive. The appeal against the severity of the sentence was dismissed.
The court did not make any orders regarding the sentence but confirmed that the sentence imposed by Black DCJ was appropriate. The applicant was to serve a two-year imprisonment sentence, subject to a recognizance release order to take effect after 10 months of the sentence had been served. The recognizance was conditioned on the applicant being of good behaviour throughout the balance of the two-year sentence.
Orders
Orders of the court
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Background
Background to the litigation
Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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