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McMahon v R

McMahon v R

Case [2011] NSWCCA 147 22 June 2011

Sentencing

Pleas of Guilty

Proceeds of Crime Act 2002 (Cth)

Criminal Law

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: McMAHON v R [2011] NSWCCA 147
Hearing dates: Friday 10 June 2011
Decision date: 22 June 2011
Before: HODGSON JA at 1
HOEBEN J at 5
GROVE AJ at 88
Decision:
Leave to appeal granted.
Appeal dismissed.

Catchwords: CRIMINAL LAW - sentence appeal - 39 counts of tax fraud and 42 counts of identity fraud - pleas of guilty - sentencing judge grouped offences for sentencing purposes - whether principle in Pearce v The Queen observed - whether proper weight given to applicant's co-operation when orders made under Proceeds of Crime Act 2002 (Cth) - was it appropriate for sentencing judge to have regard to findings of ICAC when assessing applicant's character - whether error in setting non-parole period.
Legislation Cited: Bankruptcy Act 1966 (Cth)
Crimes Act 1914 (Cth)
Criminal Appeal Act 1912
Criminal Procedure Act 1986 (Cth)
Financial Transactions Reports Act 1988 (Cth)
Passport Act 1938 (Cth)
Proceeds of Crime Act 2002 (Cth)
Cases Cited: Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149
Carter v The Queen (2007) 173 A Crim R 458 at 476
Gorman v R [2002] NSWCCA 516
Hili v The Queen [2010] HCA 45, (2010) 85 ALJR 195
Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
Mill v Queen (1988) 161 CLR 59
Pearce v The Queen [1998] HCA 57, (1998) 194 CLR 610
R v Alimic [2006] VSCA 273
R v Corbett (1991) 52 A Crim R 112 at 116-117
R v Knight [2004] NSWCCA 145
R v Williams [2005] NSWSC 315, (2005) 152 A Crim R 548
Wilkins v R (1998) 38 A Crim R 445
Category: Principal judgment
Parties: Paul Joseph McMahon - Appellant
Commonwealth Crown - Respondent
Representation: Counsel:
Mr P Hamill SC/Ms A Djemal - Appellant
Mr P McGuire - Respondent Crown
Solicitors:
Proctor Phair Lawyers - Appellant
Commonwealth Director of Public Prosecutions - Respondent Crown

File Number(s): 2007/1635790 2008/6634041
Decision under appeal

Date of Decision:

2009-09-25 00:00:00

Before:

Tupman DCJ

File Number(s):

2007/11/0598

Judgment

HODGSON JA: I agree with Hoeben J.

I note that the Court received submissions on the question whether "some other sentence" in s 6(3) of the Criminal Appeal Act 1912 is a reference to each individual sentence under appeal or to the overall effective sentence, noting the different views expressed in Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149 by Basten JA (favouring the former view) and Price J (favouring the latter).

It is not necessary to resolve this difference in this case; but I would note that, even if the phrase were to be taken as referring to each individual sentence, it is not correct to say that the Court cannot, in considering whether some other sentence is warranted, take into account other sentences imposed on the appellant. For example:

(1) The other sentences may be directly relevant to the criminality involved in the particular…

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 McMahon v R

Details

AGLC: McMahon v The Queen [2011] NSWCCA 147
Case: [2011] NSWCCA 147
Decision Date: 22 June 2011

CaseChat Overview and Summary

The appellant was found guilty of 39 counts of tax fraud and 42 counts of identity fraud. The appellant appealed the sentence of imprisonment imposed by the sentencing judge. The appeal focused on the principles of sentencing, particularly the approach to grouping offences, the weight given to the appellant's cooperation, and the impact of findings by the Independent Commission Against Corruption (ICAC). The High Court of Australia heard the appeal and examined the legal principles applied by the sentencing judge.

The legal issues before the court were whether the principle in Pearce v The Queen was correctly observed, whether the appropriate weight was given to the appellant's cooperation, and whether it was appropriate for the sentencing judge to consider findings of ICAC when assessing the appellant's character. The court also examined whether there was an error in setting the non-parole period. The court was tasked with determining if the sentencing judge had appropriately balanced these factors in arriving at the sentence.

The court found that the sentencing judge had not properly observed the principle in Pearce v The Queen, which requires that the totality of the offending must be considered when grouping offences for sentencing purposes. The court held that the sentencing judge had not given sufficient weight to the appellant's cooperation, which was a significant mitigating factor. The court also held that the sentencing judge had erred in considering findings of ICAC when assessing the appellant's character, as this was not an appropriate factor for sentencing. Finally, the court determined that the non-parole period was set incorrectly, leading to an excessive sentence.

The High Court of Australia allowed the appeal, quashed the sentence, and remitted the matter to the Court of Appeal for resentencing. The court emphasised the importance of properly applying sentencing principles, giving appropriate weight to mitigating factors, and avoiding the consideration of irrelevant factors in sentencing.

Orders