Regina v McLellan

[2004] NSWCCA 73

CITATION:	Regina v McLellan [2004] NSWCCA 73
HEARING DATE(S):	17 March 2004
JUDGMENT DATE:	17 March 2004
JUDGMENT OF:	Hodgson JA at 1, 28, 30; Shaw J at 29; Smart AJ at 2
DECISION:	See para 27
CATCHWORDS:	Attention not paid to special circumstances which warranted shorter non-parole period
LEGISLATION CITED:	Crimes Act Crimes (Sentencing Procedure) Act 1999
CASES CITED:	Pearce (1998) 194 CLR 610
PARTIES :	Regina v Traceylee Joy McLellan
FILE NUMBER(S):	CCA 60429/03
COUNSEL:	(A) C Bruce (C) B Knox SC
SOLICITORS:	(A) S E O'Connor (C) S Kavanagh

LOWER COURTJURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	02/21/3156; 02/21/3157; 03/21/3031
LOWER COURT JUDICIAL OFFICER :	Goldring DCJ

60429/03

HODGSON JA

SHAW J

SMART AJ

Wednesday, 17 March 2004

Regina v Traceylee Joy McLELLAN

JUDGMENT

1. HODGSON JA: I will ask Smart AJ to give the first judgment.

2. SMART AJ: Traceylee Joy McLellan appeals against the severity of accumulated sentences totalling five years six months with a non-parole period of four years six months. She was charged with sixteen counts:

(a) Seven counts (counts 1, 2, 4, 5, 6, 7 and 9) of obtain money by deception (s 178BA of the Crimes Act - maximum penalty five years).

On count 1, seven further similar offences and on count 4, fourteen similar offences were taken into account.

On each of counts 1 and 4 a fixed term of imprisonment of two years was imposed, commencing on 3 October 2004. On each of counts 2, 5, 6, 7 and 9 a fixed term of imprisonment of eighteen months was imposed, commencing on 3 October 2004.

(b) Two counts (3 and 8) of making a false statement (s 178BB of the Crimes Act - maximum penalty five years).

On count 3, five offences of making a false statement were taken into account. On count 3 a fixed term of imprisonment of two years was imposed, commencing on 3 October 2004.

On count 8 a term of imprisonment for four years was imposed, commencing on 3 October 2004, with a non-parole period of three years.

(c) Six counts (10, 11, 12, 13, 14 and 15) of using a false instrument (s 300(2) of the Crimes Act - maximum penalty ten years).

On count 10, seven offences of making a false instrument and eight offences of using a false instrument were taken into account.

On count 11, eight offences of making a false instrument and eleven offences of using a false instrument were taken into account.

On count 12, seven offences of making a false instrument and nine offences of using a false instrument were taken into account.

On count 13, five offences of making a false instrument and seven offences of using a false instrument were taken into account.

On count 15, eleven offences of making a false instrument and eight offences of using a false instrument were taken into account.

On each of counts 10, 11, 12, 13, 14 and 15 a sentence of four years’ imprisonment was imposed, commencing on 3 October 2004, with a non-parole period of three years.

(d) One count (count 16) of providing a document with intent to pervert the course of justice (provision of an altered medical report on 6 August 2002 so as to receive a lesser sentence) (s 319 of the Crimes Act - maximum penalty 14 years).

On count 16, a sentence of imprisonment of eighteen months was imposed, commencing on 3 April 2003.

3. In all there were 108 matters of fraudulent or dishonest conduct over a period of sixteen months from August 1999 to December 2000 involving $247,000.

4. The judge described the applicant’s method of operation. She obtained documents such as a birth certificate or a concession card, photocopied those documents, made alterations and then used the altered documents to obtain credit cards and to operate accounts with a number of different financial institutions. She obtained money from them, or other benefits. One financial institution incurred a loss of $65,000. The facts reveal widespread dishonesty and serious criminality.

5. In August 2002 the applicant was due to appear for sentence. She asked her treating doctor for a letter describing her medical condition and that doctor provided such a letter. She used the letterhead and the signature but added to the contents of the letter a number of other matters, including statements that she was suffering from cancer and other serious complaints, with a view to influencing the sentence she would receive. This was a serious offence.

6. The applicant pleaded guilty in the magistrate’s court and thereby obviated what could have been a lengthy trial which would have tied up police and court resources for some time.

7. The applicant was born on 2 June 1972. Her criminal record involves dishonesty offences in 1989 when she was sixteen and, more importantly, some twenty-three counts of obtain financial advantage by deception in 1995. In 1997 she was dealt with for a series of dishonesty offences, including seventy-one counts of obtain financial advantage by deception and eleven counts of obtain benefit by deception and two further charges of attempt obtain benefit by deception and goods in custody. The highest sentence she received was a minimum term of five months and an additional term of twelve months. She was required in 1998 to serve further periods in gaol for breaches of parole.

8. The sentencing judge accepted that the applicant had had an unhappy childhood. Her relationship with her mother has never been good and is fraught with hostility. She was abused in her childhood at the hands of her brothers. She left school in year 9 at the age of fourteen.

9. She has a gambling problem of long standing. It goes back to her years as a juvenile. Her marital history has also been unhappy and unfortunate. She has had four children, but only the youngest of them, to whom she is devoted, lived with her at the time of the offences.

10. The first marriage failed. She claimed her husband, whom she married at the age of nineteen, was a gambler and an alcoholic. She met her second husband in custody. She asserted that he deceived her. She next married Alfred Aquilina, who is the father of her two youngest children. There have been hostile proceedings in the Family Court. She says that Aquilina was a gambler and pressured her to commit offences to pay her gambling debts. However, she accepted responsibility for these offences. There was no duress. She was worried about Aquilina being violent to their younger daughter.

11. The judge noted that she had been in a relationship with another man for about the last three years (as at April 2003).

12. The judge accepted that the applicant felt remorse. She had been working as a volunteer in a child care centre. The proprietor would employ her if she had a vacancy.

13. Dr R Bradley, consultant psychiatrist, has treated the applicant since December 2002. In fact, the applicant had seen Dr Bradley on nine occasions as at the date of sentence. In Dr Bradley’s report of 31 March 2003 she has written that the applicant’s psychiatric issues are due to personality disturbance, a poor family background, that her poor sense of self has led her to choose violent and dominating men and that in her desperate need to please and be loved, she has been easily led into criminal acts. She continued:

“Tracey is currently well motivated to reform and has remorse. She also appears to be in a stable and supportive relationship for the first time which is a very positive sign."

After analysing the applicant's personality disorder Dr Bradley wrote:

“With this degree of personality damage, the prognosis for recovery from telling lies and from dishonesty is very guarded.

Treatment would involve long term psychotherapy on a weekly basis and she should have very close follow-up.”

14. The applicant, in her evidence, was relatively confident that she would not commit offences again.

15. The Probation and Parole officer, in her report of 3 April 2003, thought that the applicant’s attitude and approach to offending had changed and instanced her conduct while she had been on bail over a lengthy period.

16. The parties were agreed that the repealed s 44 of the Crimes (Sentencing Procedure) Act 1999 applied both to the proceedings before the judge and in this Court.

17. The applicant complained that the judge had erred in failing to find special circumstances allowing for a departure from the statutory ratio as contained in s 5(2) of the Sentencing Act 1989. That submission was framed with the dates of the offences well in mind. That complaint is now made under the 1999 Act.

18. This was a difficult and complicated sentencing exercise. In his detailed reasons the judge did not refer to “special circumstances”. This is understandable. It was not mentioned in the generally helpful address of counsel for the applicant before the judge. Counsel asked the judge to make the minimum term as short as possible. Nor was the judge reminded that if he accumulated the sentences he should consider what was, overall, an appropriate non-parole period. Counsel did not direct the judge’s attention to which sentencing regime applied.

19. In the circumstances of the present case, and having regard to the terms of the judge’s reasons and the complexities of the sentencing exercise, it seems that attention was not directed to the question of “special circumstances”.

20. The accumulation of sentences was a special circumstance. There was no good reason not to take this into account and, at least, adjust the sentences so that overall the non-parole period was not more than three quarters of the total of the sentences, allowing for some overlapping. If the usual ratio for the non-parole period was followed, then three quarters of five years six months is four years one month.

21. The prospects of rehabilitation could not be described as other than guarded. While there are some hopeful signs, the history of the applicant with repeated offences cannot be overlooked. What is clear is that the applicant will need extended treatment and supervision on her release. There is evidence from the Probation and Parole Service that of recent years and while on bail for over two years, she responded to supervision.

22. Error has been shown on the part of the trial judge in his dealing with the aspect of special circumstances. This Court should re-sentence as another sentence with a shorter non-parole period is warranted in law.

23. On re-sentencing I have taken into account the affidavit of Simon Healy of 16 March 2004 annexing a copy of the report of Dr Giuffrida and an affidavit of the applicant of 8 March 2004. She is far from well.

24. With the applicant’s difficulties, Dr Bradley’s recommended treatment and the need for extended support and supervision, a non-parole period of three years nine months is both necessary and correct. It is correct because, looked at from the reverse side, it is the minimum period which it is necessary that the applicant should serve in gaol. An extended period of 21 months on parole is needed. I have not overlooked the dictates of Pearce (1998) 194 CLR 610 at par 45. Some adjustments to the sentences will be needed.

25. I record that no argument was addressed as to the length of any of the sentences or the accumulation. Nor could it have been. The focus of the applicant’s challenge was the length of the non-parole period.

26. For the reasons earlier stated, special circumstances exist.

27. I propose the following orders:

(1) Leave to appeal against sentence is granted.

(2) Dismiss the appeal against the sentence of eighteen months’ imprisonment on count 16, commencing on 3 April 2003 and expiring on 2 October 2004.

(3) Dismiss the appeal against the sentence of eighteen months’ imprisonment on each of counts 2, 5, 6, 7 and 9, commencing on 3 October 2004 and ending on 2 April 2006.

(4) Dismiss the appeals against the sentence of two years’ imprisonment on each of counts 1, 3 and 4, commencing on 3 October 2004 and expiring on 2 October 2006.

(5) Dismiss the appeals against the sentence of four years’ imprisonment on each of counts 8, 10, 11, 12, 13, 14 and 15, commencing on 3 October 2004 and expiring on 2 October 2008.

(6) Allow the appeals against the non-parole period of three years fixed on each such count and substitute on each count a non-parole period of two years three months, commencing on 3 October 2004 and expiring on 2 January 2007.

28. HODGSON JA: I agree that in the circumstances of this case an overall non-parole period of three years and nine months, in the context of a head sentence of five years and six months, is the appropriate non-parole period.

29. SHAW J: I agree with the judgments of Smart AJ and Hodgson JA.

30. HODGSON JA: The orders of the court are as proposed by Smart AJ.

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Last Modified: 03/26/2004