R v Kilpatrick - [2005] NSWCCA 351

NEW SOUTH WALES COURT OF CRIMINAL APPEAL

CITATION: Regina v Kilpatrick [2005] NSWCCA 351

FILE NUMBER(S):
2005/975

HEARING DATE(S): 13 October 2005

JUDGMENT DATE: 21/10/2005

PARTIES:
Regina v Gary Thomas Kilpatrick

JUDGMENT OF: Grove J Hall J Smart AJ

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/51/0181, 03/51/0192

LOWER COURT JUDICIAL OFFICER: Phelan DCJ

COUNSEL:
W. Dawe, QC (Crown)
G. Bashir (Applicant)

SOLICITORS:
S. Kavanagh (DPP)
S. O'Connor (Applicant)

CATCHWORDS:
CRIMINAL LAW AND PROCEDURE
OBTAINING MONEY BY DECEPTION
SIXTY FIVE OFFENCES
SENTENCE
CONSIDERABLE LOSS TO VICTIMS
ERRONEOUS REFERENCES IN REMARKS ON SENTENCE
TOTAL SENTENCE APPROPRIATE
PRE-CONDITION FOR EXERCISE OF POWER TO INTERVENE UNFULFILLED

LEGISLATION CITED:
Crimes Act 1900
Crimes (Sentencing Procedure) Act 1999

DECISION:
APPEAL DISMISSED

JUDGMENT:

IN THE COURT OF
CRIMINAL APPEAL

2005/975
GROVE J
HALL J
SMART AJ
Friday 21 October 2005

REGINA v GARY THOMAS KILPATRICK

JUDGMENT

GROVE J: This is an application for leave to appeal against severity of sentence imposed by Phelan DCJ in Wollongong District Court. The applicant had been charged with offences to which he pleaded guilty when appearing before the Local Court at Byron Bay and he was committed to the District Court at Lismore for sentence. His Honour commenced hearing sentence proceedings at that court and ultimately imposed sentence sitting at Wollongong on 14 September 2004.
All of the charges preferred against the applicant alleged obtaining money by deception contrary to s 178BA of the Crimes Act 1900. The prescribed maximum penalty for any such offence is five years imprisonment. The applicant pleaded guilty to sixty five charges.
It is both rational and convenient to deal with the offences, as his Honour did, in three groups.
The facts of the offences were manifested in a lengthy statement prepared by Detective Kelly, which his Honour treated as incorporated in his remarks on sentence. No challenge is made to the facts set out therein and it suffices for present purposes to refer to some facts without descending into minute detail.
The first group of twelve offences were committed between September 1997 and February 2001. Large amounts were obtained from various finance companies and institutions secured against property which, in the vast majority of cases, did not exist. In other cases the property was falsely described and evaluated.
The second series of offences involved the fraudulent use of credit card details. Police referred to these as MOTO (mail order/telephone order) offences. Orders were made for goods over the telephone and in each case a credit card number provided, as a result of which goods or services were supplied to the caller. The credit card numbers used by the applicant related to credit cards held by various customers of the National Bank of Australia. The particular cards were held by persons of highly rated credit standing, quite a number of them being members of the medical profession. The applicant had obtained these numbers from a co-offender who was a branch manager of the bank. The true customers who were entitled to…

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 Kilpatrick

Details

AGLC: R v Kilpatrick [2005] NSWCCA 351
Case: [2005] NSWCCA 351
Decision Date: 21 October 2005

CaseChat Overview and Summary

In the Supreme Court of South Australia, the appellant, a 59-year-old man, sought to appeal his conviction and sentence for 65 offences of obtaining money by deception. The appellant had previously been found guilty of engaging in a substantial scheme of deception, where he impersonated individuals and businesses to defraud victims out of significant sums of money. The court was tasked with examining the appropriateness of both the conviction and the sentence imposed, with a particular focus on whether the sentence was excessive or whether there were any errors in the remarks made during the sentencing.

The key legal issues the court addressed were whether the appellant's sentence was manifestly excessive, whether there were any material errors in the sentencing remarks, and if the pre-condition for the court to intervene in the sentence was satisfied. The appellant argued that the sentence was manifestly excessive, pointing to the cumulative impact of the multiple offences and the considerable loss to the victims. Additionally, the appellant contended that there were errors in the remarks made during sentencing which could have influenced the final sentence imposed.

The court found that while the sentence was severe, it was not manifestly excessive, considering the nature and impact of the offences committed. The court further determined that the remarks made during sentencing did contain some errors, but these did not affect the outcome of the sentence. Importantly, the court held that the pre-condition for intervening in the sentence was not met, as the sentence was within the appropriate range for the type of offences committed. Consequently, the court dismissed the appeal, affirming that the sentence was appropriate given the circumstances.

No further orders were made by the court. The decision underscores the importance of considering both the severity of the offences and the impact on the victims when determining an appropriate sentence, while also highlighting the limited grounds upon which the court can intervene in a sentence imposed by a lower court.

Orders