McKenna v The Queen

[1999] NSWCCA 358

CITATION:	McKenna v Regina [1999] NSWCCA 358
FILE NUMBER(S):	CCA 98/60709
HEARING DATE(S):	Friday 22 October 1999
JUDGMENT DATE:	22 October 1999
PARTIES :	A: David Wayne McKenna R: Regina
JUDGMENT OF:	Meagher JA at 1; James J at 11; Kirby J at 12

LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S) :	95/11/0744
LOWER COURT JUDICIAL OFFICER:	Goldring J

COUNSEL:	A: Robyn Burgess R: Frank Veltro
SOLICITORS:	A: Ms C Ridge Legal Aid Commission R: Mr R Ferral-Smith
CATCHWORDS:	defraud Commonwealth; multiple offences; prior convictions ; sentence excessive
ACTS CITED:	Crimes Act 1900 (NSW)
DECISION:	Appeal granted, sentance quashed,sentence of 6 yrs, non-parole period of 3 years

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

060709/98

MEAGHER JA
BRUCE JAMES J
KIRBY J

FRIDAY 22 OCTOBER 1999

DAVID WAYNE McKENNA v REGINA (COMMONWEALTH)

JUDGMENT

1   MEAGHER JA: This is an application for leave to appeal by Mr David McKenna, who was sentenced by his Honour Judge Goldring to six years' imprisonment with a non-parole period of three years. What he did was to obtain by fraud various sums of money totalling in all over half a million dollars, to be precise $558,668.96. The victim of his fraud was the Australian Tax Office or the Commonwealth of Australia. 2   That is one way of putting it. A more accurate way of putting it would be the victims of his frauds would be the people of Australia. To make matters worse, he was a person of considerable literacy and skill and he employed the qualifications which he had gained as a university graduate and as an accountant in order to perpetrate his frauds. To make matters worse still, he did so in a field in which detection is very unlikely and, if it casts a further unsatisfactory aspect on his behaviour, he did not do so in order to further any cause or to pay his creditors or to meet any personal needs. He seemed to do it solely for his own enjoyment including giving himself expenses travel. It involved 22 counts relating to defrauding the Commonwealth, and he had some previous history.
3   The grounds of appeal, which were argued with very great skill by Miss Burgess on his behalf, were a number. The first one was the in taking into account Mr McKenna's prior history, his Honour made mistakes in that he treated as previous convictions convictions which, in fact, were not previous. In my view, this ground of appeal should fail but it is worth saying something about it.
4   One previous conviction related to a driving offence and we can forget about that. The other concerned what were initially said to be two offences - obtaining benefit by deception. That one defence, which was mistakenly called two defences, was an offence which took place between 16 January 1994 and 16 February 1994. It, in some respects, could be called previous events and in some respects not.
5   The 22 counts, with which this appeal is concerned, took place between February 1992 and July 1994. The offence, with which the Downing Centre Local Court dealt on 17 March 1997, was committed before the last six of those 22 offences. Now, there are various ways one could possibly categorise it: either as being the subsequent offence, in the sense that it was subsequent to a great number of the offences charged, or a previous offence because it was previous to the last six; or, in my view, more realistically as a concurrent offence really of the same general nature which had taken place more or less at the same time as the 22 counts under consideration.
6   There is also an offence of obtaining benefits by deception, which was dealt with by the St James Local Court on 26 May 1997. That truly was subsequent in the sense that it took place after all 22 offences. But it also took place when he was on appeal in respect of those offences. So whatever way one looks at the offences, which his Honour took into account, were either previous offences, concurrent offences or very close to being concurrent offences. His Honour, on any view, was not able to take them into account, even if they could properly be counted as subsequent offences, which I doubt.
7 In those circumstances, I am of the view that the first ground of appeal fails. The second ground, which can be said is, with respect to the sentence, manifestly excessive in the circumstances of the case. In my view, this must also fail in that one is not dealing with one offence. One’ s dealing with 22 offences. Literally, the Crimes Act would provide for 10 years for each offence. Bearing in mind the principle of totality one must treat them more as one offence than as 22 offences.
8   Nonetheless, one cannot neglect the fact that there are 22 distinct offences and one must start at the highest possible point before one makes any form of discount for anything. In those circumstances, his Honour was perfectly correct, I think, in starting his calculations at a high point and then greatly reducing them.
9   Also in this area, Miss Burgess suggested his Honour did not give sufficient weight to Mr McKenna's medical condition - the fact he is HIV positive. She very fairly, in her written submissions, stated that his Honour did state the relevant principles to be applied when a person has health problems. She conceded that his Honour did not make any error of principle. In these circumstances, I would be disinclined to overrule what is admittedly a discretionary judgment.
10   The third aspect of the second ground of appeal was that his Honour did not give the applicant real benefit of the pre-sentence custody. On this, Miss Burgess is definitely correct. Apparently by error, his Honour did not give Mr McKenna the benefit of 12 days, which he should have given him. I am of the view, therefore, although it is almost on a technicality, that the following orders should be made:
1. Leave to appeal granted.
2. Decision on sentence quashed, the appeal being allowed.
3. In lieu of the decision on the sentence, order that the prisoner have a sentence of six years' imprisonment commencing 8 May 1998 and finishing 7 May 2004; that he not be eligible for parole for a period of three years, that is, he will first become eligible for parole on 7 May 2001.

I might add that in making that adjustment for the technical allowance of the appeal, I have not thought it necessary to pay much heed to judicial information which Miss Burgess has been kind enough to give to the court.

11   BRUCE JAMES J: I agree with the judgment of the presiding judge and the orders proposed by his Honour. Even if the first ground of appeal should be regarded as entitled to succeed, I would not have been satisfied that a sentence less severe in law would have been warranted subject, of course, to the minor adjustment required by the short period of pre-sentence custody not taken into account.
12   KIRBY J: I also agree with the orders proposed.
13   MEAGHER JA: The orders of the court are the orders which I proposed.
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