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Court of Criminal Appeal 17 March 2004

Regina v McLellan

[2004] NSWCCA 73

Fraud & dishonesty
PAROLE PERIOD

Citation: Regina v McLellan [2004] NSWCCA 73
Court: NSW Court of Criminal Appeal
Date: 17 March 2004
Judges: Hodgson JA, Shaw J, Smart AJ

Background

The appellant had pleaded guilty in the District Court to 16 counts arising from 108 separate instances of fraudulent conduct committed over 16 months. The offences included obtaining money by deception, making false statements, and using false instruments, and involved total losses of approximately $247,000. A separate count related to the appellant tampering with a medical report to obtain a more favourable sentence, by adding false claims of serious illness to a letter from her treating doctor.

At first instance, Goldring DCJ imposed accumulated sentences totalling five years and six months, with a non-parole period of four years and six months. The appellant had a prior history of dishonesty offences and a longstanding gambling problem. Psychiatric evidence indicated a personality disorder, a troubled background, and a need for long-term psychotherapy and close supervision upon release.

On appeal, the sole challenge was the length of the non-parole period. The appellant argued that the sentencing judge had failed to identify special circumstances that warranted a departure from the standard statutory ratio between the non-parole period and the head sentence.

  • Whether the sentencing judge erred by failing to identify and apply special circumstances that would justify a non-parole period shorter than the statutory default ratio
  • Whether, in the context of accumulated sentences, the judge should have considered what was appropriate as an overall non-parole period, having regard to the extended supervision the appellant would require on release

Decision

The Court of Criminal Appeal found that the sentencing judge had not expressly addressed special circumstances, which was understandable given that trial counsel had not raised the term directly. However, the Court concluded that special circumstances did in fact exist and that the judge's attention had not been adequately directed to this aspect of the sentencing exercise.

The relevant special circumstances included the appellant's psychiatric condition and personality disorder, the treating psychiatrist's recommendation for long-term weekly psychotherapy and close follow-up, and the need for an extended period of supervised parole. The Court noted that when sentences are accumulated, the sentencing court should consider whether the resulting overall non-parole period appropriately reflects the need for post-release supervision.

Smart AJ, with whom Hodgson JA and Shaw J agreed, re-sentenced the appellant on the basis that a non-parole period of three years and nine months was both necessary and correct, within the overall head sentence of five years and six months. This left an extended parole period of 21 months, which the Court considered appropriate given the appellant's rehabilitative needs.

The individual sentence lengths and the fact of accumulation were not in dispute and were not disturbed. The Court's intervention was confined to adjusting the non-parole periods on the counts that carried parole components.

Orders Made

  • Leave to appeal against sentence granted
  • Appeal against the 18-month sentence on count 16 (perverting the course of justice) dismissed
  • Appeals against the 18-month sentences on counts 2, 5, 6, 7 and 9 dismissed
  • Appeals against the 2-year sentences on counts 1, 3 and 4 dismissed
  • Appeals against the 4-year sentences on counts 8, 10, 11, 12, 13, 14 and 15 dismissed
  • Appeals against the 3-year non-parole periods on those counts allowed; non-parole period on each such count substituted with 2 years and 3 months, commencing 3 October 2004 and expiring 2 January 2007
  • Overall non-parole period reduced to 3 years and 9 months within a head sentence of 5 years and 6 months

Key Takeaways

  • Where accumulated sentences produce a lengthy aggregate term, the sentencing court is required to consider whether the overall non-parole period appropriately accounts for special circumstances, including the offender's need for extended post-release supervision and treatment.
  • A failure to advert to special circumstances in sentencing reasons, particularly where the issue was not raised by counsel, can constitute an error that warrants intervention by an appellate court.
  • Psychiatric evidence of a personality disorder, combined with clinical recommendations for long-term weekly psychotherapy and close follow-up, was sufficient to establish special circumstances in this case.
  • In dismissing the challenges to individual sentence lengths and to the accumulation, the Court of Criminal Appeal confined its re-sentencing to the non-parole periods, leaving the structure of the head sentences intact.
  • The principle in Pearce (1998) 194 CLR 610 was engaged and considered in the re-sentencing exercise, requiring care to ensure that the overall outcome of accumulated sentences remained proportionate.

Legislation and Cases Referenced

Legislation:
- Crimes Act (NSW): ss 178BA, 178BB, 300(2), 319
- Crimes (Sentencing Procedure) Act 1999 (NSW): s 44 (repealed), s 5(2)
- Sentencing Act 1989 (NSW): s 5(2)

Cases:
- Pearce v The Queen (1998) 194 CLR 610