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Court of Criminal Appeal 26 November 2004

Regina v Swadling

[2004] NSWCCA 421

Theft & property
NEED TO RE SENTENCE

Citation: Regina v Swadling [2004] NSWCCA 421
Court: New South Wales Court of Criminal Appeal
Date: 26 November 2004
Judge(s): Hodgson JA, Hulme J, Smart AJ

Background

The applicant, an employee, was convicted of multiple offences of larceny as a clerk spanning 21 months. She was found to have stolen funds from her employer across 20 separate occasions, with individual amounts ranging from approximately $3,500 to over $49,000. The total amount taken was $322,766, and the sentencing judge found the misappropriation had caused the victims considerable financial hardship.

In the District Court, Dodd DCJ sentenced the applicant on nine counts, with 11 further offences taken into account on a Form 1 document (a procedural mechanism under which additional offences are placed before the court at sentencing to be considered alongside the principal charges). The sentencing judge granted a 25% discount for the applicant's guilty plea and accepted that she had no prior criminal record, a generally favourable psychological report, and some degree of genuine remorse.

The applicant sought leave to appeal her sentences to the Court of Criminal Appeal, contending that errors had been made in the sentencing structure at first instance.

  • Whether the sentencing judge erred by adopting a global approach to sentencing across multiple discrete offences, rather than sentencing for each offence individually
  • Whether the sentence imposed on count 8, in connection with which 11 further offences were taken into account on the Form 1, was manifestly excessive
  • Whether, if error were established, the overall effective sentence should be reduced on re-sentencing

Decision

The Court unanimously found that the sentencing judge had erred. The clearest indicator of error was the imposition of identical sentences for multiple counts, with all sentences commencing on the same date. This disclosed an impermissible global approach: rather than sentencing for each offence individually and then structuring cumulation and concurrency to reflect total criminality, the judge had effectively worked backwards from a single aggregate term.

The Court also found that the sentence on count 8 was manifestly excessive. That count involved a theft of $49,125, with 11 additional Form 1 offences involving approximately $92,000 taken into account. A starting point of nine years and four months before applying the guilty plea discount was not justified by those facts.

On the question of whether the overall effective sentence should be reduced, the Court was divided. Hulme J considered the seriousness of the offending, including its deliberate and repeated nature over 21 months and the scale of total losses, demanded that general deterrence and retribution carry significant weight. His Honour declined to reduce the overall effective sentence, placing particular weight on the vulnerability of employers to dishonest employees handling funds, and the real hardship caused to the victim. Smart AJ, whose reasons were endorsed by Hodgson JA, took the view that re-sentencing was required and structured individual sentences reflecting the progression in offending and the applicable totality principle.

The Court ultimately allowed the appeal, quashed the original sentences, and re-sentenced the applicant. The re-sentencing exercise applied a 25% guilty plea discount to each individual sentence, imposed partially concurrent and partially cumulative terms to reflect both the discrete nature of each offence and the overall criminality, and resulted in an overall head sentence of six years and three months with an effective non-parole period of three years and three months.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against sentences allowed; sentences quashed
  • The applicant re-sentenced as follows:
  • Count 1: 18 months imprisonment commencing 19 June 2003, non-parole period of 9 months expiring 18 March 2004
  • Count 2: 2 years imprisonment commencing 19 June 2003, non-parole period of 1 year expiring 18 June 2004
  • Counts 3 and 4: 2 years 6 months each commencing 19 December 2003, non-parole period of 15 months expiring 18 March 2005
  • Count 5: 3 years commencing 19 March 2004, non-parole period of 18 months expiring 18 September 2005
  • Counts 6 and 7: 3 years 6 months each commencing 19 June 2004, non-parole period of 21 months expiring 18 March 2006
  • Count 8: 6 years commencing 19 September 2003, non-parole period of 3 years expiring 18 September 2006
  • Count 9: 4 years commencing 19 September 2004, non-parole period of 2 years expiring 18 September 2006
  • Overall head sentence: 6 years 3 months; overall effective non-parole period: 3 years 3 months
  • Applicant eligible for release to parole on 19 September 2006

Key Takeaways

  • A global sentencing approach to multiple discrete offences is an error of principle. Sentencing for each offence individually, followed by a structured consideration of cumulation, concurrency, and totality, is the correct methodology.
  • Imposing identical sentences on multiple counts and ordering that all sentences commence on the same date is a strong indicator that a global approach has been impermissibly adopted.
  • For offences of larceny as a clerk, the Court of Criminal Appeal confirmed that general deterrence and retribution carry particular weight given society's necessary reliance on the honesty of employees who handle funds.
  • Where Form 1 offences are significant in number and value, the sentence on the principal count to which they attach must still be proportionate to the overall criminality involved; a manifestly excessive starting point will constitute error.
  • Partial concurrency combined with partial cumulation, adjusted for totality, is the accepted structural tool when imposing sentences for multiple offences committed over an extended period.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW), s 56 (larceny as a clerk)
- Crimes (Sentencing Procedure) Act (NSW), s 44

Cases:
- Johnson v The Queen (2004) 78 ALJR 616
- Mato and Russo (1999) 109 A Crim R 121
- R v AEM (Snr) [2002] NSWCCA 58
- R v Carr [2002] NSWCCA 434
- R v Felton (2002) 135 A Crim R 328
- R v Fraser [2000] NSWCCA 97
- R v Hawker [2001] NSWCCA 148
- R v Itamura [2000] NSWCCA 502
- R v McGarrity [1999] NSWCCA 73
- R v Pearce (1998) 194 CLR 610
- R v Purnell (unreported, CCA, 28 September 1994)
- R v Thompson and Houlton (2000) 49 NSWLR 383
- R v Woodman [2001] NSWCCA 310