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Court of Criminal Appeal 19 May 2004

REGINA v. KEIR

[2004] NSWCCA 106

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL LENGTHY COURSE OF PENSION FRAUD ELDERLY ILL APPLICANT FULL TIME CUSTODY CALLED FOR

Citation: Regina v Keir [2004] NSWCCA 106
Court: Court of Criminal Appeal, New South Wales
Date: 19 May 2004
Judge(s): Dunford J, Greg James J, Buddin J

Background

The applicant, a 79-year-old man in poor health, had pleaded guilty to two Commonwealth offences involving a prolonged pension fraud spanning approximately 27 years. After his mother died in 1973, he continued to claim her widow's pension and later her aged pension by forging her signature and lodging false forms, ultimately obtaining $182,663.71 in funds to which he had no entitlement.

In November 2003, the District Court sentenced him to two years' imprisonment, with release on recognisance after serving six months. The sentencing judge, aware of his serious medical condition, proceeded on the understanding that he would serve that custody either in hospital or in a facility other than maximum security.

In practice, the applicant was placed in a maximum security facility situated near a hospital rather than within one. He subsequently suffered multiple cardiac events, was removed to hospital on each occasion, and suffered a further cardiac episode in the court cells on the very morning his leave to appeal was heard. The Court of Criminal Appeal proceeded in his absence on that occasion, on the basis of adequate instructions from senior counsel.

  • Whether the sentencing judge's evident intentions as to the conditions of custody had been undermined by what actually occurred after sentence was passed.
  • Whether subsequent events, specifically the cardiac episodes and the nature of the applicant's actual confinement, constituted fresh evidence or circumstances capable of warranting re-sentencing on appeal.
  • Whether the sentence as served differed so materially from the sentence as contemplated that intervention by the Court of Criminal Appeal was warranted under s 6(3) of the Criminal Appeal Act 1912.
  • Whether s 16(3) of the Crimes Act (Cth) 1914, requiring a court to have regard to the nature and severity of the conditions of confinement, was engaged.

Decision

The Court confirmed that a full-time custodial sentence was appropriate for the offending, which was serious, prolonged, and involved sustained dishonesty over nearly three decades. The applicant's age and ill-health had already been taken into account at first instance, and those factors did not displace the need for imprisonment.

However, the Court accepted that the basis on which the sentencing judge had passed sentence had been effectively undermined by what followed. The sentencing judge had proceeded on the understanding that custody would be served in hospital or in conditions of lesser severity than maximum security. What actually occurred was materially different from what she had envisaged, and that difference had serious consequences for the applicant's health.

The Court applied the principle, drawn from cases including Regina v Ehrenburg and Regina v Bailey, that subsequent events may be taken into account on appeal where they make known or explain something that was unknown or not fully appreciated at the time of sentencing. This was not an exercise of supervisory oversight of the corrections system but a proper appellate review of whether "some other sentence warranted in law should have been passed."

On that basis, the Court varied the recognisance release order so that the applicant would be released after serving two months and 21 days, rather than six months. The Court also gave a direction designed to avoid the applicant being returned to a corrections facility for processing or transported in a prison vehicle.

Orders Made

  • Leave to appeal granted.
  • Appeal allowed.
  • Sentences on each count confirmed.
  • Recognisance release order varied: the applicant to be released after serving two months and 21 days upon entering into the recognisance specified by the sentencing judge.
  • Direction given that the recognisance be entered in a manner avoiding return to any corrections facility for processing or transfer by prison vehicle.

Key Takeaways

  • A sentencing court's expectations about the conditions of an offender's custody are a legitimate consideration, and if those expectations are substantially defeated by what actually occurs, an appellate court may intervene to re-sentence.
  • Under s 16(3) of the Crimes Act (Cth) 1914, a court sentencing for Commonwealth offences is required to have regard to the nature and severity of the conditions that will apply under the sentence, a provision the Court of Criminal Appeal found directly relevant in this context.
  • The power to re-sentence on appeal was not framed as supervisory oversight of the corrections system. Rather, it operated as a review of whether the sentence as actually served accorded with the sentence the sentencing judge understood she was passing.
  • Serious age and ill-health alone did not preclude a full-time custodial sentence where the offending was grave and sustained. The appeal succeeded on the narrow and exceptional ground that actual custody conditions had diverged materially from the sentencing judge's contemplation.
  • Where fresh evidence of post-sentencing events explains something unknown or not fully appreciated at the time, the Court of Criminal Appeal may take that evidence into account in determining whether a different sentence was warranted in law.

Legislation and Cases Referenced

Legislation
- Crimes Act (Cth) 1914, ss 29B, 29D, 16(3)
- Criminal Appeal Act 1912 (NSW), s 6(3)

Cases
- Vachalec (1981) 1 NSWLR 351
- L (CCA, unreported, 17 June 1996)
- Munday [1981] 2 NSWLR 87
- Jones (1993) 70 A Crim R 449
- Goodwin (1990) 51 A Crim R 328
- Bradley [2004] NSWCCA 88
- Wilson v Department of Corrective Services (1997) 93 A Crim R 301
- Jenkins (CCA, unreported, 14 July 1993)
- Price (CCA, unreported, 2 September 1993)
- Scullion (CCA, unreported, 15 July 1992)
- Regina v Ehrenburg (Loveday J, unreported, 14 December 1990)
- Bailey (1988) 35 A Crim R 458