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McLaren v R

McLaren v R

Case [2021] NSWCCA 12 15 February 2021

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Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: McLaren v R [2021] NSWCCA 12
Hearing dates: 17 June 2020
Decision date: 15 February 2021
Before: Hoeben CJ at CL at [1]
Rothman J at [2]
Hamill J at [3]
Decision:
(1) Leave to appeal granted.
(2) Appeal against sentence allowed.
(3) Quash the sentences imposed by the District Court in relation to the (17) offences of obtaining a financial advantage by deception and in lieu thereof:
The applicant is sentenced to an aggregate term of imprisonment of 12 years commencing on 11 July 2017 and expiring on 10 July 2029 with an aggregate non-parole period of 9 years. The applicant will first become eligible for release on parole on 10 July 2026.
Pursuant to s 53A(2)(b) of the Crimes (Sentencing Procedure) Act 1999, confirm the following indicative sentences for the individual offences:
(i)   Sequence 1: 4 years, 6 months.
(ii)   Sequence 10: 4 years.
(iii)   Sequence 11: 4 years.
(iv)   Sequence 22: 3 years, 9 months.
(v)   Sequence 23: 4 years.
(vi)   Sequence 32: 6 years.
(vii)   Sequence 38: 4 years.
(viii)   Sequence 43: 1 year, 6 months.
(ix)   Sequence 44: 4 years, 6 months.
(x)   Sequence 46: 6 years, 9 months.
(xi)   Sequence 47: 3 years, 9 months.
(xii)   Sequence 48: 6 years.
(xiii)   Sequence 51: 6 years.
(xiv)   Sequence 57: 2 years.
(xv)   Sequence 73: 2 years, 3 months.
(xvi)   Sequence 74: 5 years.
(xvii)   Sequence 76: 4 years.
(4) For the offence of dealing with proceeds of crime, confirm the concurrent fixed term of 7 years and 6 months commencing on 11 July 2017 and expiring on 10 January 2025.

Catchwords:
CRIMINAL LAW - appeal against sentence - fraud offences - dishonestly obtain by deception - multiple counts - extremely serious example of fraud - judgment on sentence - emotive and pejorative language - whether appropriate balance in sentencing proceeding maintained - whether judge “transmogrified” into “champion of victims” - judicial detachment - temperance - “pep talk” to media - judicial function - whether subjective circumstances disregarded - manifestly excessive aggregate sentence - whether plainly wrong or unjust

Legislation Cited:
Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(2)

Cases Cited:
Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2
Berryman v R [2017] NSWCCA 297
De Angelis v R [2015] NSWCCA 197
Decision Restricted [2019] NSWSC 1109
Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
Gaffney v R [2009] NSWCCA 160
Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
Ibbotson (a pseudonym) v R [2020] NSWCCA 92
Johnston v R [2017] NSWCCA 53
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
McKittrick v R [2014] NSWCCA 128
Pereira v R [2018] NSWCCA 171
PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
Postiglione v The Queen (1997) 189 CLR 295

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 McLaren v R

Details

AGLC: McLaren v R [2021] NSWCCA 12
Case: [2021] NSWCCA 12
Decision Date: 15 February 2021

CaseChat Overview and Summary

In the case of McLaren v R, the appellant sought to appeal against the sentence imposed by the trial judge for multiple counts of fraud. The appellant was found guilty of dishonestly obtaining funds by deception on several occasions, constituting an extremely serious example of fraud. The appeal focused on the appropriateness of the sentence imposed, considering factors such as the emotive and pejorative language used by the trial judge and whether this affected the balance in the sentencing proceedings. The appellant argued that the judge had lost detachment and had "transmogrified" into a "champion of victims," questioning whether the subjective circumstances were disregarded and if the aggregate sentence was manifestly excessive.

The legal issues in the case revolved around the appropriateness of the language and tone used by the trial judge during the sentencing process. The appellant contended that the judge's language and demeanour, including a perceived "pep talk" to the media, demonstrated a lack of judicial detachment and temperance, potentially influencing the outcome of the sentencing. The court needed to determine whether the trial judge's conduct amounted to an error in the sentencing process that was plainly wrong or unjust, and whether the aggregate sentence imposed was manifestly excessive.

The court considered the trial judge's language and conduct in the sentencing process, assessing whether it demonstrated a lack of judicial detachment or a failure to maintain a balanced approach. The court concluded that, while the language used was emotive and pejorative, it did not amount to a departure from the principles of judicial detachment or temperance. The trial judge's comments were found to be within the bounds of acceptable judicial conduct, and the aggregate sentence was not considered manifestly excessive or plainly wrong or unjust. The appeal was therefore dismissed, with the court upholding the original sentence imposed by the trial judge.

Orders