Citation: R v Child [1999] NSWCCA 407
Court: NSW Court of Criminal Appeal
Date: 8 December 1999
Judge(s): James J; Sperling J
Background
A father and his adult son were convicted after a District Court jury trial of a series of offences connected to the misappropriation of client funds through two superannuation administration companies. The father, a disqualified bankrupt and experienced superannuation consultant, was found guilty of three counts of fraudulent misappropriation and one count of obtaining a financial advantage by deception. His son was convicted of three counts of aiding and abetting his father's fraudulent misappropriations.
The offending involved client moneys totalling over $900,000 being deposited into general company accounts rather than designated accounts, and then disbursed improperly. The sentencing judge found that the father had in fact controlled both companies, despite the son holding the formal directorship roles. A significant portion of funds was traced to the purchase and upkeep of show horses through a connected company.
Both men appeared in person before the Court of Criminal Appeal, each having been legally represented at trial. They sought leave to appeal against the sentences imposed by Judge Job in the District Court.
Legal Issues
- Whether the sentencing judge made any identifiable error in the exercise of his sentencing discretion in respect of either applicant
- Whether the sentences imposed on the father (five years four months penal servitude, concurrent) and the son (three years four months penal servitude) were manifestly excessive
- Whether post-sentencing developments, including expressions of contrition and completion of rehabilitation courses, could ground a successful appeal
Decision
The Court of Criminal Appeal confirmed that leave to appeal against sentence cannot succeed unless an error in the sentencing process is demonstrated. In general, events occurring after sentencing are not a legitimate basis for establishing such an error.
The Court acknowledged that both men had expressed greater insight into their conduct since imprisonment and had completed various courses in custody, including computer studies, horticulture, and music. However, James J found that none of those developments disclosed any error by Judge Job in exercising his sentencing discretion.
The sentencing judge had expressly considered the unusual medical conditions of both men, incorporating at length the findings of medical reports in his remarks on sentence. The Court found that no error had been demonstrated and that the sentences were not manifestly excessive. Sperling J agreed with that conclusion.
Orders Made
- Leave to appeal against sentence granted to each applicant
- Appeals against sentence dismissed
Key Takeaways
- No error was established in the sentencing discretion exercised by the District Court, and the appeals were dismissed despite both applicants appearing in person and raising personal circumstances.
- Post-sentencing rehabilitation, including completion of courses in custody and expressions of contrition, is generally not a legitimate basis for demonstrating sentencing error on appeal.
- In dismissing the appeals, the Court of Criminal Appeal reaffirmed that the bar for appellate intervention in sentencing is tied to identifiable error in the sentencing process, not subsequent developments in the offender's circumstances.
- Where a sentencing judge has expressly addressed relevant medical conditions and incorporated medical evidence into remarks on sentence, that careful engagement will weigh against a finding of error on appeal.
- Differential sentences between co-offenders can be justified where the evidence supports a finding that one party was the dominant actor in the offending and where one party has a significant mitigating medical condition.
Legislation and Cases Referenced
Legislation:
- Crimes Act (NSW), s 178A (fraudulent misappropriation)
- Crimes Act (NSW), s 178BA (obtaining a financial advantage by deception)
Cases cited: No cases were cited in the provided text.