Citation: Alcorn v Regina [2006] NSWCCA 209
Court: New South Wales Court of Criminal Appeal
Date: 10 July 2006
Judge(s): McClellan CJ at CL, James J, Hall J
Background
The appellant was a solicitor and partner at a Campbelltown law firm who became embroiled in a sophisticated property fraud scheme. The scheme, devised by others, involved obtaining short-term loans secured over Sydney properties owned by members of the Friel family, with forged signatures and fabricated explanations for missing certificates of title. The appellant acted for lenders in a series of transactions connected to this fraud.
The appellant pleaded guilty in the District Court to six offences: two counts of knowingly using a false instrument (forged statutory declarations) to obtain cheques totalling approximately $81,500 from the Office of State Revenue, and four counts of corruptly receiving benefits as an agent of his law firm. The corrupt receipts involved accepting signed blank cheques from a mortgage broker named Stumer, totalling $130,000, in circumstances that tended to influence the appellant in showing favour to Stumer in the firm's business. A further eight offences were taken into account on a Form 1.
Judge Black of the District Court sentenced the appellant on 6 September 2005 to six equal concurrent sentences of 30 months imprisonment, with non-parole periods of 15 months. The appellant sought leave to appeal against those sentences.
Legal Issues
- Whether the sentencing judge erred by imposing six entirely concurrent sentences without any cumulation, given that the offences involved distinct criminal conduct
- Whether the total effective sentence adequately reflected the overall criminality of the appellant's conduct across the six counts
- Whether the structuring of the sentences properly accounted for the principle in Pearce v The Queen regarding concurrency and accumulation for separate offences
Decision
James J (with whom McClellan CJ at CL and Hall J agreed) found that the sentencing judge erred in making all six sentences run completely concurrently. The court noted that where an offender is sentenced for multiple distinct offences, at least some accumulation is generally required to reflect the separate criminality involved. Simply imposing identical concurrent sentences across offences of different character and gravity did not adequately reflect the totality of the conduct.
The Court of Criminal Appeal acknowledged the mitigating factors that the sentencing judge had accepted: the appellant's guilty pleas, his cooperation with authorities, his lack of prior convictions, his good character prior to the offending, the delay between his admission of guilt and sentencing (approximately three years), and the progress he had made toward rehabilitation during that period. These factors warranted the same percentage discounts the sentencing judge had applied.
James J observed that because some sentences were to be made cumulative, a finding of special circumstances was appropriate, permitting adjustment to the standard ratio between non-parole periods and the balance of the term. The court also noted that because the offences were committed before 1 February 2003, the previous version of section 44 of the Crimes (Sentencing Procedure) Act applied to the calculation of non-parole periods.
The court re-sentenced the appellant by imposing a combination of fixed-term sentences and sentences with non-parole and parole periods, structured so that some terms ran cumulatively. The resulting overall period of imprisonment was shorter than that originally imposed, with the earliest parole eligibility date set at 5 September 2006.
Orders Made
- Leave to appeal against sentence granted
- Appeal against sentence allowed
- Sentences imposed by Judge Black on 6 September 2005 quashed, and in lieu thereof:
- Count 1 (taking into account the first two Form 1 offences): fixed term of 10 months imprisonment, commencing 6 September 2005, expiring 5 July 2006
- Count 2: fixed term of 8 months imprisonment, commencing 6 September 2005, expiring 5 May 2006
- Count 3 (taking into account the last four Form 1 offences): 14 months imprisonment comprising a non-parole period of 2 months commencing 6 July 2006 and a balance of term of 12 months commencing 6 September 2006, expiring 5 September 2007
- Counts 4, 5 and 6: 12 months imprisonment each, comprising a non-parole period of 2 months commencing 6 July 2006 and a parole period of 10 months commencing 6 September 2006, expiring 5 July 2007
- Earliest date of eligibility for release on parole: 5 September 2006
Key Takeaways
- Imposing wholly concurrent sentences across multiple distinct offences may constitute a sentencing error where the separate criminal acts warrant at least some degree of cumulation to reflect overall criminality.
- The Court of Criminal Appeal confirmed that the principle in Pearce v The Queen (1998) 194 CLR 610 requires sentencing courts to address concurrency and accumulation in a way that appropriately reflects the totality of an offender's conduct.
- Significant delay between an offender's admission of guilt and the imposition of sentence is a recognised mitigating factor, with the court citing R v Todd (1982) 2 NSWLR 517 in noting the relevance of the period of suspense endured by the appellant.
- Where some sentences are to run cumulatively, a finding of special circumstances under the Crimes (Sentencing Procedure) Act may be warranted to adjust the non-parole period accordingly.
- Offences committed before 1 February 2003 attract the previous version of section 44 of the Crimes (Sentencing Procedure) Act when calculating the relationship between non-parole periods and the balance of term.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 249B(1)(b), 300(2)
- Criminal Procedure Act 1986 (NSW)
- Duties Act 1997 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 44
Cases:
- Pearce v The Queen (1998) 194 CLR 610
- R v Hammoud (2000) 118 A Crim R 66
- R v Todd (1982) 2 NSWLR 517