NSW Police Force v Michael James Walsh - [2014] NSWLC 21

Local Court

New South Wales

Medium Neutral Citation: NSW Police Force v Michael James Walsh [2014] NSWLC 21
Hearing dates: 7 October 2014 and 18 November 2014
Decision date: 18 November 2014
Jurisdiction: Criminal
Before: Dare SC LCM
Decision:
1) Sequences 1 to 5 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 November 2014 (expire on 17 January 2015).
2) Sequences 6 to 10 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 December 2014 (expire on 17 February 2015).
3) Sequences 11 to 16 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 13 months from 18 February 2015, with a non-parole period of 3 months expiring on 17 May 2015, and a balance term of 10 months commencing on 18 May 2015 and expiring on 17 March 2016.
The total effective sentence is a term of imprisonment of 16 months from 18 November 2014 and expiring 17 March 2016, with a non-parole period of 6 months expiring on 17 May 2015. As a condition of the parole, the Offender is directed to be subject to the supervision by the Probation & Parole Service for such period as that Service deems necessary and to undertake any program or treatment recommended by the Service.

Catchwords: SENTENCING – multiple fraud offences – lengthy prior history of similar offending – relevance and use of prior record in sentencing – factors of universal application to fraud – accumulation of sentences
Legislation Cited: Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5, 9, 12, 22, 25(2), 50, 51, 58
Crimes Act 1900 (NSW), s 192E(1)(b)
Criminal Procedure Act 1986 (NSW), s 267(2)
Cases Cited: Aslett v R [2006] NSWCCA 360
Assi v R [2006] NSWCCA 257
Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
Le v R [2006] NSWCCA 136
Markarian v The Queen [2005] HCA 25; 228 CLR 357
Nguyen v R [2007] NSWCCA 14
Pearce v The Queen [1998] HCA 57; 194 CLR 610
R v Falzon and Pullen (Court of Criminal Appeal (NSW), 20 January 1992, unrep)
R v Hawkins (1989) 45 A Crim R 430
R v Henry [1999] NSWCCA 111; 46 NSWLR 346
R v Hill [2004] NSWCCA 257
R v Houlten [2000] NSWCCA 309; 49 NSWLR 383
R v Huynh [2008] NSWCCA 16
R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566
R v Mears (1991) 53 A Crim R 141
R v Mille (Court of Criminal Appeal (NSW), 1 May 1998, unrep)
R v Mmk [2006] NSWCCA 272
R v Molesworth [1999] NSWCCA 43
R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376
R v Murtaza [2001] NSWCCA 336
R v Pont [2000] NSWCCA 419; 121 A Crim R 302
R v Sellen (1991) 57 A Crim R 313
R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383

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.

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Details

Case: [2014] NSWLC 21
Decision Date: 18 November 2014

CaseChat Overview and Summary

Michael James Walsh was convicted of multiple fraud offences and sentenced by the New South Wales District Court. The central issue was the relevance and use of Walsh’s extensive criminal history, marked by similar offences, in the sentencing process. The court had to determine the appropriate punishment considering the cumulative nature of his crimes and the principles of sentencing for fraud.

The court examined the factors of universal application to fraud offences, focusing on the need for general and specific deterrence, as well as the offender's culpability. The prior history of similar offending was deemed significant, indicating a pattern of behaviour that warranted a harsher sentence. The court acknowledged the importance of accumulating sentences to reflect the totality of the offender's criminal conduct.

In delivering the sentence, the court balanced the need for punishment with the aim of rehabilitation. It imposed a total effective sentence of 16 months, with a non-parole period of six months, and mandated Walsh to be under the supervision of the Probation & Parole Service upon release. The sentence was structured to ensure that Walsh's imprisonment would serve as a deterrent and provide an opportunity for rehabilitation, considering his extensive criminal record. The court’s decision underscores the importance of addressing both the offender’s culpability and the need to protect the community from further offending.

Orders

Orders of the court

1) Sequences 1 to 5 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 November 2014 (expire on 17 January 2015).

2) Sequences 6 to 10 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 December 2014 (expire on 17 February 2015).

3) Sequences 11 to 16 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 13 months from 18 February 2015, with a non-parole period of 3 months expiring on 17 May 2015, and a balance term of 10 months commencing on 18 May 2015 and expiring on 17 March 2016.

The total effective sentence is a term of imprisonment of 16 months from 18 November 2014 and expiring 17 March 2016, with a non-parole period of 6 months expiring on 17 May 2015. As a condition of the parole, the Offender is directed to be subject to the supervision by the Probation & Parole Service for such period as that Service deems necessary and to undertake any program or treatment recommended by the Service.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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Medium Neutral Citation:	NSW Police Force v Michael James Walsh [2014] NSWLC 21
Hearing dates:	7 October 2014 and 18 November 2014
Decision date:	18 November 2014
Jurisdiction:	Criminal
Before:	Dare SC LCM
Decision:	1) Sequences 1 to 5 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 November 2014 (expire on 17 January 2015). 2) Sequences 6 to 10 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 2 months from 18 December 2014 (expire on 17 February 2015). 3) Sequences 11 to 16 (inclusive), the Offender is convicted and sentenced to a term of imprisonment of 13 months from 18 February 2015, with a non-parole period of 3 months expiring on 17 May 2015, and a balance term of 10 months commencing on 18 May 2015 and expiring on 17 March 2016. The total effective sentence is a term of imprisonment of 16 months from 18 November 2014 and expiring 17 March 2016, with a non-parole period of 6 months expiring on 17 May 2015. As a condition of the parole, the Offender is directed to be subject to the supervision by the Probation & Parole Service for such period as that Service deems necessary and to undertake any program or treatment recommended by the Service.
Catchwords:	SENTENCING – multiple fraud offences – lengthy prior history of similar offending – relevance and use of prior record in sentencing – factors of universal application to fraud – accumulation of sentences
Legislation Cited:	Crimes (Sentencing and Procedure) Act 1999 (NSW), ss 3A, 5, 9, 12, 22, 25(2), 50, 51, 58 Crimes Act 1900 (NSW), s 192E(1)(b) Criminal Procedure Act 1986 (NSW), s 267(2)
Cases Cited:	Aslett v R [2006] NSWCCA 360 Assi v R [2006] NSWCCA 257 Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41 Le v R [2006] NSWCCA 136 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Nguyen v R [2007] NSWCCA 14 Pearce v The Queen [1998] HCA 57; 194 CLR 610 R v Falzon and Pullen (Court of Criminal Appeal (NSW), 20 January 1992, unrep) R v Hawkins (1989) 45 A Crim R 430 R v Henry [1999] NSWCCA 111; 46 NSWLR 346 R v Hill [2004] NSWCCA 257 R v Houlten [2000] NSWCCA 309; 49 NSWLR 383 R v Huynh [2008] NSWCCA 16 R v McNaughton [2006] NSWCCA 242; 66 NSWLR 566 R v Mears (1991) 53 A Crim R 141 R v Mille (Court of Criminal Appeal (NSW), 1 May 1998, unrep) R v Mmk [2006] NSWCCA 272 R v Molesworth [1999] NSWCCA 43 R v Mungomery [2004] NSWCCA 450; 151 A Crim R 376 R v Murtaza [2001] NSWCCA 336 R v Pont [2000] NSWCCA 419; 121 A Crim R 302 R v Sellen (1991) 57 A Crim R 313 R v Thomson; R v Houlten [2000] NSWCCA 309; 49 NSWLR 383