Substitute sentence of 2 years' imprisonment to date from 25 October 2013 and order the respondent's release to a recognisance release order from 25 October 2014 expiring 24 October 2015
Catchwords:
APPEAL - Crown appeal against sentence - offence of dishonestly using position as employee of a corporation with intention of gaining advantage - "rolled up" charge - plea of guilty - suspended sentence with two year good behaviour bond - whether sentence manifestly inadequate - whether sentencing judge erred in allowing factors of delay and mental illness to displace principle of general deterrence in imposing a non-custodial sentence - whether sentencing judge's discretion with respect to issue of mental illness miscarried - mitigatory effect of delay based on consequences of delay to offender - sentence failed to reflect gravity of offence - sentence failed to adequately reflect principle of general deterrence - appeal allowed - sentence quashed - sentence substituted
Counsel R Bromwich SC / S Buchen - (Appellant) H Dhanji SC - (Respondent) Solicitors Commonwealth Director of Public Prosecutions - (Appellant) Watsons Solicitors and Barristers (Respondent)
File Number(s):
2012/267621
Decision under appeal
Date of Decision:
2013-04-26 00:00:00
Before:
Sweeney DCJ
Judgment
HIDDEN J : I agree with Latham J that the sentence passed in the District Court, being wholly suspended, is manifestly inadequate. I do so only after careful consideration. The sentencing task confronting the primary judge was not an easy one. However, the criminality embraced by the rolled-up charge amounted to systematic fraud involving a serious breach of trust. Making all due allowance for the delay in the matter coming to finality, the respondent's mental illness, his prior good character…
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
AGLC
R v Donald [2013] NSWCCA 238
Case
[2013] NSWCCA 238
Decision Date
CaseChat Overview and Summary
The appellant, Donald, was convicted of using his position as an employee of a corporation dishonestly with the intention of gaining an advantage. Donald pleaded guilty to the charge, which was "rolled up" to a single count. The sentencing judge imposed a suspended sentence with a two-year good behaviour bond. The Crown appealed the sentence, arguing that it was manifestly inadequate. The appeal centred on whether the sentencing judge erred by allowing the factors of delay and the appellant's mental illness to displace the principle of general deterrence in imposing a non-custodial sentence. The Crown further argued that the sentencing judge's discretion with respect to the issue of mental illness miscarried and that the mitigatory effect of the delay was based on the consequences of the delay to the offender. The appeal also contended that the sentence failed to reflect the gravity of the offence and adequately reflect the principle of general deterrence.
The court considered the appeal and found that the sentence was manifestly inadequate. It was held that the sentencing judge had erred by allowing the factors of delay and mental illness to displace the principle of general deterrence in imposing a non-custodial sentence. The court also found that the sentencing judge's discretion with respect to the issue of mental illness miscarried. The mitigatory effect of the delay was based on the consequences of the delay to the offender, and the sentence failed to reflect the gravity of the offence and adequately reflect the principle of general deterrence. The appeal was allowed, and the sentence was quashed. A custodial sentence was substituted.
The court substituted a sentence of imprisonment for a term of twelve months, with a non-parole period of six months. The appellant was ordered to serve a minimum of three months before being eligible for parole. The court held that the sentence should adequately reflect the gravity of the offence and the principle of general deterrence. The appeal was allowed, and the sentence was quashed and substituted with a custodial sentence.