Leeming JA at [1] Johnson J at [2] Hall J at [307]
Decision:
Decision Crown appeal allowed.
Sentences imposed upon the Respondent in the District Court on 14 June 2013 are quashed.
In lieu thereof, the Respondent is sentenced as follows:
(i)for Count 1, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 June 2013 and expiring on 20 June 2014,
(ii)on Count 2, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 September 2013 and expiring on 20 September 2014,
(iii)for Count 3, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 December 2013 and expiring on 20 December 2014,
(iv)for Count 4, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 December 2013 and expiring on 20 December 2014,
(v)for Count 5, and taking into account the seven offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of one year and six months to date from 21 March 2014 and to expire on 20 September 2015, with a balance of term of one year and six months commencing on 21 September 2015 and expiring on 20 March 2017.
The earliest date upon which the Respondent will be eligible for release to parole is 21 September 2015.
Recommendation It is recommend that the psychiatric report of Dr Richard Furst 26 November 2013, together with the psychological report of Ms Emma-Jane Barclay dated 7 November 2013 be furnished to relevant authorities within Justice Health and the Department of Corrective Services, to assist the treatment and classification of the Respondent in custody.
Catchwords:
CRIMINAL LAW - sentencing - Crown appeal - Respondent pleaded guilty to five counts of defrauding a body corporate as a director contrary to s.176A Crimes Act 1900 with seven similar offences on a Form 1 - offences committed over 12-month period - Respondent obtained more than $1.5 million - Respondent sentenced to two years' imprisonment to be served by way of intensive correction order - whether factual error in characterisation of offences - whether error in assessment of objective gravity - whether error in approach to Form 1 offences - whether undue weight given to Respondent's subjective circumstances - heavy reliance upon psychiatric evidence where Respondent did not give evidence - whether erroneous to sentence by way of intensive correction order - whether sentences manifestly inadequate - errors established - sentences manifestly inadequate - whether residual discretion should be exercised to dismiss Crown appeal - Crown representative had contributed to factual error - held discretion ought not be exercised - interests of justice required resentencing - objective gravity of offences - importance of general deterrence for offences of fraud committed by company directors -…
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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AGLC
R v Hinchliffe [2013] NSWCCA 327
Case
[2013] NSWCCA 327
Decision Date
CaseChat Overview and Summary
In the case of R v Hinchliffe, the respondent pleaded guilty to five counts of defrauding a body corporate as a director contrary to section 176A of the Crimes Act 1900, with seven similar offences on a Form 1. The respondent obtained more than $1.5 million through these offences, which were committed over a 12-month period. The respondent was sentenced to two years' imprisonment to be served by way of an intensive correction order. The Crown appealed the sentence, arguing that the sentencing judge made several errors in the sentencing process.
The legal issues that the court had to decide were whether there was a factual error in the characterisation of the offences, an error in the assessment of the objective gravity, an error in the approach to the Form 1 offences, undue weight given to the respondent's subjective circumstances, reliance upon psychiatric evidence where the respondent did not give evidence, and whether it was erroneous to sentence by way of an intensive correction order. The court also had to determine whether the sentences were manifestly inadequate and whether the residual discretion should be exercised to dismiss the Crown appeal.
The court found that there were errors in the sentencing process, including an incomplete assessment of the objective gravity of the offences and an irresistible inference that the sentencing judge regarded the respondent's offences as being at a relatively low level of objective gravity. The court also found that the respondent had pleaded guilty to all the offences and that there was no submission on his behalf that he had not gained financially as a result of all the offences. The court held that the sentences were manifestly inadequate and that the interests of justice required resentencing. The respondent was resentenced to terms of full-time imprisonment.
The court observed that the Crown representative had contributed to the factual error, but the discretion ought not be exercised as it was in the interests of justice to resentence the respondent. The court emphasised the importance of general deterrence for offences of fraud committed by company directors and the need for appropriate sentences to reflect the objective gravity of the offences.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
It was submitted that the Crown had not demonstrated that it was not open to the sentencing Judge to make the findings sought to be challenged under the first ground of appeal.Decision It may be taken that this Court will be slow to interfere with discretionary determinations of sentencing Judges concerning the objective gravity of offences: Mulato v R [2006] NSWCCA 282 at [37], [46]-[47]. To overturn a factual finding by a sentencing Judge, it is necessary for this Court to be satisfied that there was an error of principle, or a mistake of fact or law, such that the sentencing discretion of the trial Judge miscarried. In its review, the Court is bound by findings of fact by the sentencing Judge unless they were not open on the evidence or unless error is shown in the sense referred to in House v The King [1936] HCA 40; 55 CLR 499 at 504-505: R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 at 573 [61]. However, what has been demonstrated in this case is an incomplete process of assessment of objective gravity by the sentencing Judge. Further, there is an irresistible inference to be drawn from orders actually made, that his Honour regarded the Respondent's offences as being at a relatively low level of objective gravity. Such a finding was not open in this case. I am satisfied that his Honour misconstrued the facts as part of the sentencing process. The fact that this was contributed to by Crown submissions on the last day of the sentencing hearing will be considered further on the question of the exercise of the residual discretion. It should be observed, however, that the Respondent had pleaded guilty to the five counts of fraud contained in the indictment, and had admitted his guilt of the seven counts to be taken into account on the Form 1. Added to that were the contents of the Agreed Statement of Facts, which quantified the sums obtained as a result of the frauds, and which, it was agreed, had not been repaid at all to the victim company. At no point, until his Honour raised the issue on the last hearing day, was there any submission on behalf of the Respondent that he had not gained financially as a result of all of the offences. The Crown had made specific submissions that there had been financial benefit on his part. To the extent that it may possibly be relevant, there was nothing in the various reports tendered in the sentencing proceedings which indicated that the Respondent had not himself benefited financially from all offences. Further, no submission had been made by counsel for the Respondent by reference to the shareholding arrangement relied upon (incorrectly) by his Honour. In these circumstances, it would appear that it was his Honour who raised this issue at the end of the sentencing hearing, with questions (without notice) being directed to a solicitor for the Crown, who was in attendance for a limited purpose, and who (according to the transcript) was not prepared to engage upon a detailed discussion of this aspect of the case. Questions of this type had not been directed to the Crown Prosecutors who had appeared on earlier hearing days. Notably, enquiries of this type were not directed by his Honour to counsel for the Respondent, who had been in attendance throughout the sentencing hearing.