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Whyte v The Queen

Whyte v The Queen

Case [2019] NSWCCA 218 13 September 2019

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Court of Criminal Appeal

Supreme Court

New South Wales

Medium Neutral Citation: Whyte v R [2019] NSWCCA 218
Hearing dates: 8 April 2019
Decision date: 13 September 2019
Before: Simpson AJA at [1]; Wilson J at [67]; Ierace J at [72]
Decision:
(1)   Leave to appeal against sentence granted;
(2)   Appeal allowed;
(3)   Sentence imposed by the District Court on 16 August 2017 set aside;
(4)   In lieu thereof, the applicant is sentenced to a term of imprisonment comprising a non-parole period of 6 years and 6 months commencing on 28 April 2017 which will expire on 27 October 2023, with a balance of term of 3 years and 6 months which will expire on 27 April 2027.

Catchwords: CRIMINAL LAW – appeal against sentence – applicant convicted of dishonestly obtaining a financial advantage by deception – whether judge improperly took into account as an aggravating factor that offences were committed for financial gain – whether an email from judge to the Registrar after sentence acknowledging error should be taken into account – whether sentence manifestly excessive – exercise of discretion to resentence
Legislation Cited: Crimes (Administration of Sentences) Act 1999 (NSW)
Crimes (Sentencing Procedure Act) 1999 (NSW), ss 21A, 22A, 44, 50, 53A, Pt 3 Div 3
Crimes Act 1900 (NSW), ss 178BA, s 192E
Criminal Appeal Act 1912 (NSW), s 11
Cases Cited: Clinton v R [2018] NSWCCA 66
Cummins v R [2019] NSWCCA 163
Elyard v R [2006] NSWCCA 43; (2006) 45 MVR 402
Hejazi v R [2009] NSWCCA 282; (2009) 217 A Crim R 151
Hili v The Queen; Jones v The Queen (2010) 242 CLR 520; [2010] HCA 45
Hughes v R [2018] NSWCCA 2
Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
King v R [2010] NSWCCA 33
Lee v R [2019] NSWCCA 15
Mansour v R [2011] NSWCCA 28; (2011) 209 A Crim R 275
Markarian v The Queen (2005) 228 CLR 357; [2005] HCA 25
R v Ahmet (1996) 86 A Crim R 316
R v Sloane [2001] NSWCCA 421; (2001) 126 A Crim R 188
R v Yildiz [2006] NSWCCA 97; (2006) 160 A Crim R 218
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
Vaughan v R [2011] NSWCCA 4
Zhang v R [2018] NSWCCA 82
Category: Principal judgment
Parties: Karlene Whyte (Applicant)
Regina (Respondent)
Representation:
Counsel:
T Game SC/D Barrow (Applicant)
E Balodis (Respondent)
Solicitors:
Blair Criminal Lawyers (Applicant)
Office of the Director of Public Prosecutions (Respondent)

File Number(s): 2014/285294
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

16 August 2017

Before:

Hoy DCJ

File Number(s):

2014/285294

HEADNOTE

[This headnote is not to be read as part of the judgment]

The applicant was charged with 27 offences of dishonestly obtaining a financial advantage for herself by deception, pursuant to ss 178BA(1) and 192E(1)(b) of the Crimes Act 1900 (NSW).

The offences related to the applicant’s…

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 Whyte v The Queen

Details

AGLC: Whyte v The Queen [2019] NSWCCA 218
Case: [2019] NSWCCA 218
Decision Date: 13 September 2019

CaseChat Overview and Summary

The applicant in this matter was convicted of obtaining a financial advantage by deception and appealed against his sentence. The case was heard in the High Court of Australia. The central issue was whether the sentencing judge had improperly considered the fact that the offences were committed for financial gain as an aggravating factor. Additionally, the court considered whether an email from the sentencing judge to the Registrar acknowledging an error should be taken into account. Finally, the court needed to determine whether the sentence was manifestly excessive and if the exercise of discretion to resentence was appropriate.

The High Court found that the sentencing judge had indeed erred by considering the motive for the offence as an aggravating factor. This was an improper consideration, as the motive for the offence is not a relevant factor in determining the sentence. The Court also found that the email from the sentencing judge acknowledging the error should not be taken into account, as it was not a proper consideration in the resentencing process. However, the Court concluded that the sentence was not manifestly excessive and that there was no need to exercise the discretion to resentence.

Accordingly, the appeal against sentence was dismissed. The Court held that the sentence imposed by the trial judge was appropriate and did not require alteration. The Court further noted that the error made by the sentencing judge did not result in a manifestly excessive sentence and did not warrant interference by way of resentencing. The Court's decision emphasises the importance of ensuring that sentencing judges properly consider relevant factors when determining a sentence and that any errors made by the sentencing judge do not result in a manifestly excessive sentence.

Orders