R v McPhee

Case [2014] SASCFC 107

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Criminal Appeal: Criminal)

R v MCPHEE

[2014] SASCFC 107

Judgment of The Court of Criminal Appeal

(The Honourable Justice Vanstone, The Honourable Justice Blue and The Honourable Justice Nicholson)

27 October 2014

CRIMINAL LAW - PARTICULAR OFFENCES - PROPERTY OFFENCES - MISAPPROPRIATION - FRAUDULENT CONVERSION BY PERSONS ENTRUSTED WITH PROPERTY - SENTENCE

CRIMINAL LAW - APPEAL AND NEW TRIAL - APPEAL AGAINST SENTENCE - GROUNDS FOR INTERFERENCE  - SENTENCE MANIFESTLY EXCESSIVE OR INADEQUATE

CRIMINAL LAW - SENTENCE - SENTENCING PROCEDURE - FACTUAL BASIS FOR SENTENCE

CRIMINAL LAW - SENTENCE - RELEVANT FACTORS  - RESPONSE TO CHARGES - PLEA OF GUILTY

The appellant was sentenced in the District Court to a period of 13 years imprisonment with a non-parole period of ten years after having pleaded guilty to 181 counts of theft contrary to s134 of the Criminal Law Consolidation Act 1935. The appellant misappropriated funds totalling $1,949,827.43 over which she had control by virtue of her position as a court appointed trustee. The offending was aggravated by the appellant’s abuse of a position of trust. On the appeal the appellant raised various bases in support of her contention that the sentence was manifestly excessive: that the head sentence (13 years with a starting point of 16 years) was too high; that the Judge failed to apply an appropriate discount given the appellant’s guilty pleas; that the non-parole period of ten years was too high; and that the Judge erred by sentencing against an incorrect factual background.

Held by the Court:

1.  The appeal is allowed.

2.  The sentence imposed in the District Court is set aside.

3.  The appellant is re-sentenced to imprisonment for a term of nine years and two months and a non-parole period of six years both backdated to commence on 23 July 2013.

Criminal Law Consolidation Act 1935 s5AA, s134. s353; Criminal Law (Sentencing) Act 1988  s10, s10C, s18A; Criminal Law (Sentencing) (Guilty Pleas) Amendment Act 2012 s7, referred to.
R v Reiner (1974) 8 SASR 102; House v The King (1936) 55 CLR 499; R v Chisholm (1985) 122 LSJS 230; R v Ainsworth [2008] SASC 67; R v Kreutzer [2013] SASCFC 130; R v Telford [2005] SASC 349; R v Cavanagh [1999] SASC 418; R v Willoughby DCCRM-07-976, sentencing remarks of Rice DCJ, 21 January 2011; R v Fuss DCCRM-11-350, sentencing remarks of Griffin DCJ, 8 July 2011; Subramaniam v R [2013] NSWCCA 159; R v Kinnear & Thomas [2009] VSCA 104; R v Jorquera [2013] SASCFC 145; R v Davies (1996) 88 A Crim R 226; M, MA v Police [2013] SASCFC 140; R v Shannon (1979) 21 SASR 442; Cameron v The Queen (2002) 209 CLR 339; R v Place (2002) 81 SASR 395; Markarian v The Queen (2006) 228 CLR 357, considered.

R v MCPHEE
[2014] SASCFC 107

Court of Criminal Appeal:  Vanstone, Blue and Nicholson JJ

VANSTONE J.      

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R v McPhee [2014] SASCFC 107
Case
[2014] SASCFC 107
Decision Date

CaseChat Overview and Summary

The appeal concerned a sentence imposed in the District Court on the appellant, who had pleaded guilty to 181 counts of theft. The appellant, a court-appointed trustee, had misappropriated a total of $1,949,827.43, with the offending being aggravated by her abuse of a position of trust. The appeal was brought on the grounds that the sentence was manifestly excessive, specifically that the head sentence was too high, the discount for the guilty pleas was insufficient, the non-parole period was too high, and the sentencing judge had erred by proceeding on an incorrect factual background.

The court was required to determine whether the sentence of 13 years imprisonment with a non-parole period of ten years was manifestly excessive, and if so, to re-sentence the appellant. This involved considering the appropriate discount for the guilty pleas, the impact of the abuse of trust, and the factual basis upon which the original sentence was imposed.

The court allowed the appeal, finding that the original sentence was excessive. In re-sentencing, the court applied a starting point of 13 years for the head sentence but reduced it by three years and ten months, representing approximately 30 per cent, to account for the appellant's early guilty pleas. While acknowledging that some pleas were made early enough to potentially attract a larger discount, the court found that a greater discount for later offences was not warranted given the appellant's opportunity to consider her position. A non-parole period of six years was set, and both the head sentence and non-parole period were backdated to the commencement of the original sentence.

Orders

Orders of the court

Held by the Court:

1. The appeal is allowed.

2. The sentence imposed in the District Court is set aside.

3. The appellant is re-sentenced to imprisonment for a term of nine years and two months and a non-parole period of six years both backdated to commence on 23 July 2013.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

VANSTONE J NICHOLSON J (dissent)
In exercising the discretion under s18A of the Sentencing Act to impose the one penalty for all 181 offences, I would start with a head sentence of 13 years. However, I would reduce that to nine years and two months on account of the appellant’s early pleas of guilty. This reduction of three years and ten months represents a shade under 30 per cent. I am mindful that pleas to a number of the offences on the information were so early as to render the maximum permitted discount of 40 per cent potentially available with respect to those pleas. However, the appellant had had ample time to consider her position generally and the presentation of the additional counts simply reflected further accounting work on the part of the prosecution, demonstrating a capacity to prove further particulars of the appellant’s acknowledged dishonesty. In the circumstances, a discount for the new offences greater than that to be given for the old offences is not warranted. I would set a non-parole period of six years. Both the head sentence of nine years and two months and the non-parole period of six years should be backdated to commence 23 July 2013.Conclusion I would allow the appeal, set aside the sentence imposed in the District Court and re-sentence the appellant as indicated.

Ratio Decidendi

Legal Principle Established

Established by: VANSTONE J,

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