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McKittrick v R

McKittrick v R

Case [2014] NSWCCA 128 16 July 2014

Criminal Liability

Sentencing

Obtain Financial Advantage by Deception

Multiple Counts

Totality Principle

Variation to Non-Parole Period

Criminal Law

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Court of Criminal Appeal

New South Wales

Case Title: McKittrick v R

Medium Neutral Citation: [2014] NSWCCA 128

Hearing Date(s): 2 April 2014

Decision Date: 16 July 2014

Before: Simpson J at [1]
Davies J at [48]
Adamson J at [147]

Decision:
1. Grant leave to appeal;
2. Allow the appeal in part;
3. Quash the sentence imposed by Maiden DCJ in respect of sequence 4;
4. In lieu thereof, in respect of that offence, the Applicant be sentenced to imprisonment made up of a non-parole period of 1 year, commencing on 27 May 2015 and expiring on 26 May 2016, with a balance of term of 2 years and 6 months, expiring on 26 November 2018.

Catchwords: CRIMINAL LAW - sentencing - obtain financial advantage by deception - multiple counts - two Ponzi schemes at different times in different locations - second scheme operated while applicant on bail from charges relating to first scheme - amounts involved exceeding $13 million - losses exceeding $1 million - delay in charging for second scheme - whether taken into account on sentence - totality principle - sentencing by different judges for each scheme - whether second judge had regard to totality of offending and sentence imposed by first judge - accumulation and effect on statutory ratio - variation to non-parole period

Legislation Cited: Crimes Act 1900 (NSW)
Crimes (Sentencing Procedure) Act 1999 (NSW)
Criminal Appeal Act 1912 (NSW)
Sentencing Act 1989 (NSW)

Cases Cited: AB v R [2014] NSWCCA 31
Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
Baghdadi v R [2012] NSWCCA 212
House v The King (1936) 55 CLR 499
John Michael Higgins v R [2006] NSWCCA 38
Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
Mill v The Queen (1988) 166 CLR 59
Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
Pearce v The Queen (1998) 194 CLR 610
R v Blanco [1999] NSWCCA 121; 106 A Crim R 303
R v Boulden [2006] NSWSC 1274
R v Cameron [2005] NSWCCA 357
R v Kelly [2006] NSWSC 1142
R v MAK (2006) 167 A Crim R 159
R v Todd [1982] 2 NSWLR 517
R v V (1998) 99 A Crim R 297

Texts Cited: New South Wales Legislative Assembly Parliamentary Debates (Hansard), 10 May 1989

Category: Principal judgment

Parties: Patricia Lillian McKittrick (Applicant)
Crown

Representation

- Counsel: Counsel:
A Miller (Applicant)
N Noman SC (Crown)

- Solicitors: Solicitors:
Bell Lawyers (Applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2011/415324

Decision Under Appeal

- Before: Maiden DCJ

- Date of Decision: 25 July 2012

- Court File Number(s): 2011/415324

JUDGMENT

SIMPSON J: I have read in draft the judgment of Davies J. His Honour's comprehensive statement of relevant facts and circumstances enables me to be brief in that respect. I agree with Davies J that grounds 1 to 3, 6, 7, 8 and 9 ought to be rejected. In respect of grounds 4 and 5 I take…

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 McKittrick v R

Details

AGLC: McKittrick v R [2014] NSWCCA 128
Case: [2014] NSWCCA 128
Decision Date: 16 July 2014

CaseChat Overview and Summary

The case of McKittrick v R involved the sentencing of the applicant, who was found guilty of multiple counts of obtaining financial advantage by deception. The applicant operated two Ponzi schemes, one in Melbourne and another in Queensland, with the second scheme being conducted while the applicant was on bail for charges related to the first scheme. The total amount involved in the fraud exceeded $13 million, with losses exceeding $1 million. The court was tasked with determining whether the delay in charging for the second scheme should be taken into account in sentencing, and whether the principle of totality should apply when sentencing for multiple schemes.

The legal issues before the court were whether the delay in charging for the second scheme should be taken into account in the sentencing, and whether the second judge should have regard to the totality of the offending and the sentence imposed by the first judge. Additionally, the court had to consider the accumulation and effect on the statutory ratio, and whether the non-parole period should be varied.

The court found that the delay in charging for the second scheme was not a mitigating factor in sentencing, as it did not affect the applicant's culpability. The court also found that the second judge had not adequately considered the totality of the offending and the sentence imposed by the first judge, and that the accumulation and effect on the statutory ratio should be taken into account. As a result, the court varied the non-parole period imposed by the second judge. The court held that the second judge should have imposed a sentence that reflected the totality of the offending, and that the accumulation and effect on the statutory ratio should be considered when sentencing for multiple schemes. The court also noted that the delay in charging for the second scheme was not a mitigating factor in sentencing, as it did not affect the applicant's culpability.

Orders