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Court of Criminal Appeal 21 October 2005

Regina v Kilpatrick

[2005] NSWCCA 351

Also reported as 156 A Crim R 478
Fraud & dishonesty
CRIMINAL LAW AND PROCEDURE OBTAINING MONEY BY DECEPTION SIXTY FIVE OFFENCES SENTENCE CONSIDERABLE LOSS TO VICTIMS TOTAL SENTENCE APPROPRIATE

Citation: Regina v Kilpatrick [2005] NSWCCA 351
Court: NSW Court of Criminal Appeal
Date: 21 October 2005
Judge(s): Grove J, Hall J, Smart AJ

Background

The applicant pleaded guilty to 65 charges of obtaining money by deception under s 178BA of the Crimes Act 1900, each carrying a maximum penalty of five years imprisonment. The offences fell into three groups: frauds against finance companies using non-existent or misrepresented property as security; fraudulent use of stolen credit card details obtained through a bank insider (known as MOTO offences); and further large-scale finance institution frauds. The total amount obtained across the syndicate exceeded $2.6 million, with the residual loss to victims assessed as well in excess of $1 million.

The applicant was sentenced by Phelan DCJ in the Wollongong District Court in September 2004. The judge structured the sentences in three cumulative blocks, commencing from 2 April 2004 (the end of a separate, pre-existing sentence). The overall result was a first parole eligibility date of 1 October 2008.

The applicant sought leave to appeal on the ground that the sentence was manifestly excessive, raising specific complaints about the judge's approach to statutory aggravating factors, the discount for the guilty plea, and the application of the totality principle.

  • Whether the sentencing judge erroneously applied the aggravating factors checklist under s 21A(2) of the Crimes (Sentencing Procedure) Act 1999 by taking into account matters already inherent in the offences themselves
  • Whether the sentencing judge applied an insufficient discount for the guilty pleas, particularly given the applicant's admissions to a liquidator in 2001
  • Whether the cumulative structure of the three sentence groups failed to give proper effect to the totality principle
  • Whether, taken together, these alleged errors produced a sentence that was manifestly excessive and warranted appellate intervention

Decision

On the first ground, the Court accepted that the sentencing judge's remarks contained some erroneous references when applying s 21A, including references to aggravating factors that were already inherent elements of the offences charged. However, the Court found this did not infect the outcome. The overall sentence remained appropriate when assessed against the objective gravity of 65 offences involving over $2.6 million in fraud across multiple victims over several years.

On the guilty plea discount, the Court found no error warranting intervention. The judge had acknowledged the plea and given some credit, and the applicant's prior admissions to a liquidator were considered in context. The Court was not persuaded the discount was manifestly inadequate.

On totality, the Court rejected the applicant's complaint. The sentences imposed on the first and second groups of offences were characterised as lenient, given the extent of criminality. The concurrency within each group already reflected considerable leniency, and further compression of the overall sentence through partial concurrency between groups was not warranted.

Because the precondition for appellate intervention in sentence matters was not satisfied, namely that the sentence was not shown to be manifestly excessive, the application for leave to appeal was dismissed.

Orders Made

  • Appeal dismissed

Key Takeaways

  • Erroneous references to s 21A aggravating factors in sentencing remarks do not automatically vitiate a sentence; the Court of Criminal Appeal will assess whether the error actually affected the outcome rather than treating formal missteps as automatically decisive.
  • Under the totality principle, a sentencing court is not required to impose partial concurrency between groups of offences where leniency has already been built into each group through internal concurrency; the aggregate must simply not be crushing in the circumstances.
  • A guilty plea discount remains subject to the full context of the case, and prior admissions made in civil or regulatory proceedings do not necessarily enlarge the discount that must be applied at sentencing.
  • In dismissing the appeal, the Court confirmed that 65 counts of fraud causing losses well exceeding $1 million across multiple victims justified a substantial cumulative sentence, notwithstanding the applicant's limited prior record and favourable subjective features.
  • The precondition for appellate intervention in severity appeals remains that the sentence be shown to be manifestly excessive; absent that foundation, errors in the sentencing judge's remarks will not ground a successful appeal.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 178BA
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 21A

Cases:
- Johnson v The Queen (2004) 78 ALJR 616
- R v Ellis (1986) 6 NSWLR 603
- R v Simpson (2001) 53 NSWLR 704
- R v Tadrosse [2005] NSWCCA 145
- R v Thomson & Houlton (2000) 49 NSWLR 383