McInnes v The King - [2024] NSWCCA 104

Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McInnes v R [2024] NSWCCA 104
Hearing dates: 24 April 2024
Date of orders: 19 June 2024
Decision date: 19 June 2024
Before: Davies J at [1];
N Adams J at [2];
McNaughton J at [74].
Decision:
(1) Leave to appeal is granted.
(2) The appeal is dismissed.

Catchwords:
CRIMINAL LAW - appeal against sentence - dishonestly obtaining financial advantage by deception - fresh evidence relied upon on appeal - heart condition - sentenced on expectation he wold receive particular level of medical care in custody - alleged failures by Justice Health - provision of medication - issues with heart transmission device - fresh evidence not indicative of a standard of medical care below expectation of sentencing judge - stable prognosis - appeal dismissed

Legislation Cited:
Crimes (Sentencing Procedure) Act 1999 (NSW), s 44(2)
Crimes Act 1900 (NSW), ss 178BA, 193E(1)(b)
Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases Cited:
Betts v R (2016) 258 CLR 420; [2016] HCA 25
R v Keir [2004] NSWCCA 106
R v McInnes [2022] NSWDC 723
R v Smith (1987) 44 SASR 587
Turkmani v R [2014] NSWCCA 186; (2014) 244 A Crim R 402

Category: Principal judgment
Parties: Paul McInnes (Applicant)(self-represented)
Crown (Respondent)
Representation:
Counsel:
E Wilkins SC (Respondent)
Solicitors:
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2021/00277621
Publication restriction: Nil.
Decision under appeal

Court or tribunal:

District Court

Jurisdiction:

Criminal

Date of Decision:

05 December 2022

Before:

Colefax SC DCJ

File Number(s):

2021/277621

JUDGMENT

DAVIES J: I agree with N Adams J.
N ADAMS J: On 7 July 2022, the applicant pleaded guilty in the Local Court to two counts of dishonestly obtaining a financial advantage by deception contrary to s 193E(1)(b) of the Crimes Act 1900 (NSW). That offence carries a maximum penalty of 10 years imprisonment. There is no applicable standard non-parole period. A further offence of dishonestly obtaining a financial advantage by deception contrary to the now repealed s 178BA of the Crimes Act was included on a Form 1. The charges followed the discovery that the applicant had defrauded his employer, Rheem Australia, of over $2 million over an eleven-year period from August 2007 to October 2018.
On 5 December 2022, Colefax SC DCJ sentenced the applicant in relation to these frauds to an aggregate sentence of 7 years imprisonment with a non-parole period of 4 years commencing on that day. The applicant now seeks leave to appeal against that aggregate sentence pursuant to s 5(1)(c) of the Criminal Appeal Act 1912 (NSW).
The applicant was aged between 44 to 55 over the 11 years of his offending. By the time of this appeal, he was 60 years old. He was self-represented on his appeal and relied on the following sole ground of appeal:

“Failure by Corrective Services and Justice Health in adequately managing my health condition and treatment for my severe medical heart condition while in custody, despite the Judge…

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 McInnes v The King

Details

AGLC: McInnes v The King [2024] NSWCCA 104
Case: [2024] NSWCCA 104
Decision Date: 19 June 2024

CaseChat Overview and Summary

In the case of McInnes v The King, the appellant, Mr McInnes, was convicted for obtaining a financial advantage by deception and appealed against the sentence imposed by the lower court. The appeal was heard in the High Court of Australia, where the primary focus was on the adequacy of the medical care provided to the appellant while he was in custody, which was a factor considered during the sentencing process. Mr McInnes argued that the medical care he received did not meet the standard he was led to believe it would, and thus his sentence should be reconsidered.

The legal issues before the court were whether the fresh evidence presented by the appellant concerning the alleged failures in the provision of medical care amounted to a standard below what the sentencing judge had anticipated, and whether this warranted a revision of the sentence. The court had to assess the reliability and relevance of the new evidence, and determine whether the medical conditions and treatment in custody were sufficiently substandard to justify altering the sentence. Furthermore, the court examined whether the appellant's stable prognosis at the time of the appeal hearing affected the appeal's outcome.

The High Court found that the fresh evidence did not substantiate that the level of medical care provided to Mr McInnes was below the expectations set forth during sentencing. The court noted that the appellant had been receiving appropriate treatment and his health condition was stable at the time of the appeal. Given these findings, the court concluded that the new evidence did not provide a basis for altering the sentence. Consequently, the appeal was dismissed, and the original sentence remained in effect. The court's decision was grounded in the principle that the appeal was not to be treated as an opportunity to re-litigate the case based on new evidence unless it significantly undermined the original sentencing considerations.

Orders