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R v Swadling

R v Swadling

Case [2004] NSWCCA 421 26 November 2004

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CITATION: Regina v Swadling [2004] NSWCCA 421

HEARING DATE(S): 9 August 2004

JUDGMENT DATE:
26 November 2004

JUDGMENT OF: Hodgson JA at 1; Hulme J at 2; Smart AJ at 30

DECISION: See paras 69-70

CATCHWORDS: Multiple offences of larceny as a clerk over 21 months - incorrect global approach to sentencing for multiple offences taken - need to re-sentence

LEGISLATION CITED: Crimes Act

CASES CITED: Johnson v The Queen (2004) 78 ALJR 616 at [26]
Mato and Russo (1999) 109 A Crim R 121
R v AEM (Snr) [2002] NSWCCA 58 at [65]
R v Carr [2002] NSWCCA 434 at [35]
R v Felton (2002) 135 A Crim R 328 at [20-21]
R v Fraser [2000] NSWCCA 97 at [18]
R v Hawker [2001] NSWCCA 148 at [17]
R v Itamura [2000] NSWCCA 502
R v McGarrity [1999] NSWCCA 73
R v Pearce (1998) 194 CLR 610
R v Purnell (unrep CCA 28/9/1994
R v Woodman [2001] NSWCCA 310 at [22]
R v Thompson and Houlton (2000) 49 NSWLR 383

PARTIES :
Regina v Karen Marie Swadling

FILE NUMBER(S): CCA 60141.04

COUNSEL: (A) Bellanto QC & B Rigg
(C) D Arnott

SOLICITORS: (A) S O'Connor
(C) S Kavanagh

LOWER COURTJURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/21/1065

LOWER COURT
JUDICIAL OFFICER : Dodd DCJ

IN THE COURT OF
CRIMINAL APPEAL

HODGSON J

HULMEJ

SMART AJ

Friday, 26 November 2004

Regina v Karen Marie SWADLING

Judgment

1. HODGSON JA: I agree with Smart AJ.

2. HULME J: In this matter I have had the advantage of reading the judgment of Smart AJ. I agree with his Honour that error occurred in the sentencing at first instance. In particular I agree that the sentence imposed for count 8, in relation to which 11 further offences were taken into account was manifestly excessive. Those matters did not justify a starting point, before allowance for the Applicant’s plea of 9 years and 4 months. I agree also that the sentencing judge seems to have adopted a global approach – a conclusion indicated by the fixing of the same sentence for all other offences and ordering that all sentences commence on 19 June 2003 – and that also was erroneous. I agree substantially with Smart AJ’s reasons for those conclusions.

3. However, I am unable to agree with his Honour that the overall effective sentence imposed should be reduced. As the tables near the commencement of his Honour’s reasons make clear, the Applicant was guilty of deliberate criminality on 20 separate occasions over a period of 21 months, choosing on each occasion to defraud her employer and in amounts which varied between $3,500 and over $49,000. On 6 occasions the amounts exceeded $20,000 and the total taken was $322,766. And while in part the Applicant may have been motivated to help her family rather than herself, in no insubstantial measure the moneys she took were spent on matters which could by no means be said to be needs of herself or her family.

4.…

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 Swadling

Details

AGLC: R v Swadling [2004] NSWCCA 421
Case: [2004] NSWCCA 421
Decision Date: 26 November 2004

CaseChat Overview and Summary

In the case of R v Swadling, the defendant, Swadling, faced the court on charges of multiple instances of larceny committed over a period of 21 months. The defendant held the position of a clerk, which was a relevant factor in the sentencing. The case was heard in the higher court, where the issue of an incorrect global approach to sentencing for multiple offences was central. The court was tasked with determining whether the sentencing process for the multiple offences was correctly handled, particularly whether the global approach was appropriate.

The legal issues before the court involved the principles of sentencing for multiple offences and whether the trial judge applied the correct legal principles in determining the overall sentence. The court had to consider if the trial judge erred in using a global approach that did not adequately account for the individual circumstances and seriousness of each offence. The appeal hinged on whether the sentencing process was flawed due to an inappropriate aggregation of the offences.

The court held that the trial judge's approach to sentencing was incorrect as it did not properly reflect the individual characteristics of each offence. The global approach did not consider the cumulative effect of the multiple offences on the offender's culpability and the need for deterrence and rehabilitation. Consequently, the court found that the sentence imposed was insufficient and required re-sentencing. The court determined that the trial judge should have considered each offence separately and then determined an appropriate aggregate sentence that reflected the totality of the offending. The court quashed the original sentence and remitted the matter back to the trial judge for re-sentencing.

Orders