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R v Mungomery

R v Mungomery

Case [2004] NSWCCA 450 14 December 2004

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Reported Decision:
151 A Crim R 376

New South Wales

Court of Criminal Appeal

CITATION: R v MUNGOMERY [2004] NSWCCA 450 revised - 17/12/2004

HEARING DATE(S): 19 May 2004

JUDGMENT DATE:
14 December 2004

JUDGMENT OF: Spigelman CJ at 1; Hulme J at 9; Adams J at 60

DECISION: (i) Grant leave to appeal to Stephen Arthur Mungomery;(ii) Dismiss his appeal;(iii) Dismiss the Crown appeal.

PARTIES :
Regina
Stephen Arthur Mungomery

FILE NUMBER(S): CCA 60526/03; 60042/04

COUNSEL: Crown: B Walker SC; AJ Kimmins
Respondent: D Frearson

SOLICITORS: Crown: M Bosscher
Respondent: S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/0354

LOWER COURT
JUDICIAL OFFICER : Christie DCJ

- 18 -

60526/03
60042/04

SPIGELMAN CJ
HULME J
ADAMS J

R v Stephen Arthur MUNGOMERY

Judgment

1 SPIGELMAN CJ: I have read the judgment of Hulme J in draft. His Honour outlines the facts and issues that have arisen in this appeal. I generally agree with his Honour’s analysis.

2 His Honour rejects the contention put in written submissions by the Applicant to the effect that his Honour erred in failing to identify the quantum of discount which he allowed for the guilty plea. Those submissions were correctly withdrawn at the outset of oral submissions for the Applicant.

3 Secondly, Hulme J comments on his Honour’s observation:

“I never find a great deal of assistance in perusing one after the other decisions that are Crown appeals and I do not propose to do so on this occasion.”

4 This observation has to be read in the full context of his Honour’s Remarks on Sentence. The sentence appears at the end of a long passage in which he notes that reference only on Crown appeals may be misleading because of the fact that they may reflect only the bottom of the range by reason, inter alia, of the principle of double jeopardy applied by courts of criminal appeal.

5 The principal thrust of the oral submissions made for the Applicant was that his Honour’s statement that he took into account “the whole spectrum of various penalties” passed in connection with this type of crime was an inadequate statement of reasons because, for example, it does not identify what his Honour took into account or state where in the “spectrum” the particular accused was to be placed. In my opinion, this overstates the relevant role of other penalties in the sentencing process. Prior sentences are in no way precedents that need to be distinguished. They may be relevant as a guide and issues of consistency are of significance. Nevertheless, the broad judgment required for the determination of an appropriate sentence turns on the facts of a particular case and the facts of other cases are virtually never so similar as to require detailed exposition. It will often be appropriate for a sentencing judge to refer only to an impression that s/he acquires from reading relevant prior judgments and from the range of statistics available on the Judicial…

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 Mungomery

Details

AGLC: R v Mungomery [2004] NSWCCA 450
Case: [2004] NSWCCA 450
Decision Date: 14 December 2004

CaseChat Overview and Summary

In the case of R v Mungomery, the appellant, Stephen Arthur Mungomery, was convicted of defrauding Coal and Allied Industries Limited over a period of four and a half years, involving more than 100 transactions and a total amount of slightly over $1,000,000. The appellant, who was born in 1967, held various responsible positions before being employed by Coal and Allied Industries Limited, where he worked as the Manager of Business Analysis and later as Manager, Corporate Development. The appellant pleaded guilty to three counts of defrauding the company. The District Court sentenced the appellant to a total effective sentence of imprisonment for 5 years, including a non-parole period of 2½ years. Both the appellant and the Crown appealed against the sentence.

The legal issues in this case were whether the sentencing judge gave insufficient weight to the appellant's plea of guilty, failed to consider relevant authorities, and whether the sentences imposed were manifestly excessive. The Court found that the sentencing judge did not err in not quantifying the discount for the plea of guilty, as it was not mandatory to do so. The Court also found that the sentencing judge's approach to considering other penalties was not incorrect, as it was not necessary to identify specific cases that influenced the sentencing decision. However, the Court did find that the sentencing judge's approach to cumulative sentences was contrary to established principles.

In terms of the excessiveness of the sentences, the Court found that the amount of money involved in the premeditated deception and the period over which the offences were committed were important factors in determining the extent of criminality. The Court concluded that the sentence imposed for the third count was not excessive, taking into account the gravity of the offence, general deterrence, and retribution. However, the Court found that the sentences imposed for the first and second counts were manifestly inadequate and should have been longer. Nonetheless, given the Crown's stance on the overall sentence, the Court decided not to interfere with the length of the sentence imposed for the first count. The Court also decided not to increase the sentence for the second count.

The final orders of the Court were to grant leave to appeal to Stephen Arthur Mungomery, dismiss his appeal, and dismiss the Crown appeal. The Court acknowledged that while the sentences for the first and second counts were inadequate, the overall effective sentence was within the appropriate range and no further increase was necessary.

Orders