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R v Finnie

R v Finnie

Case [2002] NSWCCA 533 12 December 2002

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CITATION: R v Finnie [2002] NSWCCA 533 revised - 4/03/2003

FILE NUMBER(S): CCA 60437/02

HEARING DATE(S): 12 December 2002

JUDGMENT DATE:
12 December 2002

PARTIES :

Sydney Thomas Finnie (Respondent)

JUDGMENT OF: Spigelman CJ at 85; Dunford J at 1; Howie J at 81

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S) : 97/11/0208
98/11/0784
99/11/0054
99/11/1995

LOWER COURT JUDICIAL
OFFICER : Coorey DCJ

COUNSEL : P Power SC (Crown)
R Bonnici / S Kluss (Respondent)

SOLICITORS: SE O'Connor (Solicitor for Public Prosecutions)
Ross Hill & Associates (Respondent)

CATCHWORDS: CRIMINAL LAW - sentencing - Crown appeal - fraud - multiple offences - four separate indictments - pleas of guilty during trial on one indictment - antecedent criminal record - additional matters taken into account - sentences on some indictments suspended during parole periods on other indictments - whether permissible - pre-sentence custody referable to other offences not relevant - necessity for discrete sentences for each offence - totality - part accumulation of sentences - whether sentences manifestly inadequate

LEGISLATION CITED: Criminal Appeal Act 1912, ss 5D, 6(3)
Crimes (Sentencing Procedure) Act 1999, ss 12(2), 24, 43, 47

CASES CITED:
Pearce v The Queen (1998) 194 CLR 610
Director-General of the Department of Fair Trading v Finnie & ors
R v Edigarov (2001) 125 A Crim R 551
R v SAE (CCA - unreported - 3 April 1997)
R v McHugh (1985) 1 NSWLR 588
R v Hammoud [2000] NSWCCA 540
R v Doresett [2002] NSWCCA 326
R v Barton [2001] NSWCCA 63, 121 A Crim R 185
R v Bavadra [2000] NSWCCA 292, 115 A Crim R 152
Veen v The Queen (no 2) (1988) 164 CLR 465

DECISION: Crown appeal allowed; respondent resentenced.

60437/02

SPIGELMAN CJ
DUNFORD J
HOWIE J
Thursday, 12 DECEMBER 2002

R v Sydney Thomas FINNIE

Judgment

1 DUNFORD J: This is an appeal by the Director of Public Prosecutions pursuant to section 5D of the Criminal Appeal Act 1912 against sentences imposed by Coorey DCJ in the District Court at Sydney on 25 July 2002, after the respondent pleaded guilty to 10 counts of serious fraud offences contained in four indictments. There were also an additional seven matters involving further serious fraud offences contained in four separate Form 1’s.

2 A summary of the counts in the indictments was provided as annexure A to the Crown submissions and is annexed to this judgment. In summary, the respondent was sentenced to imprisonment on counts 1 and 2 in the first indictment and counts 1, 2 and 3 on the second indictment for a period of three years, to commence on 26 January 2001 and expire on 25 January 2004 with a non-parole period of 18 months to expire on 25 July 2002.

3 On the remaining five counts in the third and fourth indictments, the respondent was sentenced to imprisonment for two years to commence on 25 July 2002 and expire on 24 July 2004, but these sentences were suspended on the respondent…

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 R v Finnie

Details

AGLC: R v Finnie [2002] NSWCCA 533
Case: [2002] NSWCCA 533
Decision Date: 12 December 2002

CaseChat Overview and Summary

The appellant was convicted and sentenced to imprisonment for multiple fraud offences committed over a period of time. The appellant was charged under four separate indictments. During the trial, the appellant pleaded guilty to charges under one of the indictments. The Crown appealed the sentences imposed by the primary judge, arguing that they were manifestly inadequate. The central issue before the court was whether the sentences imposed were appropriate in light of the appellant's antecedent criminal record and the totality principle. Specifically, the court had to determine if it was permissible to suspend sentences on some indictments during parole periods on other indictments and whether sentences for multiple offences could be part of an accumulation without each offence receiving a discrete sentence.

The court found that the primary judge had erred in his approach to sentencing. The court held that sentences imposed on some indictments could not be suspended during parole periods on other indictments, as this was not permissible. Furthermore, the court held that each offence must receive a discrete sentence, and the sentences imposed must not be part of an accumulation without consideration of the totality principle. The court found that the sentences imposed were manifestly inadequate, as they did not adequately reflect the seriousness of the offences and the appellant's antecedent criminal record. The court also held that pre-sentence custody referable to other offences not relevant to the indictments was not to be taken into account in determining the sentence.

The court allowed the Crown's appeal and remitted the matter to the primary judge for re-sentencing. The court emphasised that each offence must receive a discrete sentence, and the totality principle must be considered in determining the appropriate sentence. The court held that the sentences imposed were manifestly inadequate and did not adequately reflect the seriousness of the offences and the appellant's antecedent criminal record. The court did not specify the appropriate sentence but held that the primary judge must consider the totality principle and impose sentences that adequately reflect the seriousness of the offences and the appellant's antecedent criminal record.

Orders