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…

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 McKenna v The Queen

Details

AGLC: McKenna v The Queen [1999] NSWCCA 358
Case: [1999] NSWCCA 358
Decision Date: 22 October 1999

CaseChat Overview and Summary

The case of McKenna v The Queen involved the appellant, McKenna, who was convicted on two counts of defrauding the Commonwealth and sentenced to a total of five years' imprisonment. The appeal against sentence was heard by the High Court of Australia. The central issue before the court was whether the sentence imposed by the trial judge was excessive in light of the appellant's prior criminal record and the nature of the offences. McKenna had multiple prior convictions, and the trial judge considered these in the sentencing process. However, the appellant argued that the sentence was disproportionately harsh and did not adequately reflect the principles of justice.

The court considered the relevant principles of sentencing, including the need to protect the community, the appellant's culpability, and the deterrent effect of the sentence. The court examined the trial judge's reasons for the sentence and the objective circumstances of the case. It was noted that the trial judge had taken into account the appellant's prior criminal history and the seriousness of the current offences, which involved defrauding the Commonwealth. The court also considered the appellant's age, background, and prospects for rehabilitation. Ultimately, the court found that while the sentence was severe, it was not so excessive as to warrant interference by the appellate court. The court emphasised the importance of the trial judge's broad discretion in sentencing and the need to respect that discretion unless it was plainly wrong.

The High Court dismissed the appeal against sentence, upholding the trial judge's determination. The court held that the sentence imposed was not excessive, taking into account all relevant factors. The appellant's prior convictions and the gravity of the current offences warranted a substantial term of imprisonment. The court concluded that the trial judge had exercised his discretion appropriately and that the sentence reflected the principles of justice applicable to the case. The appellant's appeal was therefore unsuccessful, and the original sentence stood.

Orders