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Court of Criminal Appeal 9 February 2007

Murphy v Regina

[2007] NSWCCA 18

Fraud & dishonesty
CRIMINAL LAW COMMONWEALTH OFFENCES SENTENCES NOT MANIFESTLY EXCESSIVE NON PAROLE PERIOD EXCEEDING NORMAL RATIO ABSENCE OF REASONS

Citation: Murphy v Regina [2007] NSWCCA 18
Court: New South Wales Court of Criminal Appeal
Date: 9 February 2007
Judge(s): Beazley JA, Buddin J, Hislop J

Background

The appellant was a Centrelink employee whose duties included processing childcare benefit advance requests. Between October 2002 and April 2004, she altered the nominated bank account details for various childcare providers so that payments were redirected into her own accounts. This scheme resulted in 18 payments totalling approximately $375,895.

She pleaded guilty to 11 charges of dishonestly intending to obtain a gain from a Commonwealth entity, contrary to s 135(1) of the Criminal Code Act (Cth), each carrying a maximum penalty of 5 years imprisonment. In July 2005, the District Court sentenced her to an aggregate effective head sentence of 3 years and 3 months, with a non-parole period of 2 years and 3 months.

The appellant sought leave to appeal on two grounds: that the sentencing judge erred in setting the non-parole period, and that the overall sentence was manifestly excessive.

  • Whether the aggregate head sentence of 3 years and 3 months was manifestly excessive in light of the appellant's age, prior good character, guilty pleas, and rehabilitation prospects.
  • Whether the sentencing judge erred by setting a non-parole period that exceeded the normal ratio for Commonwealth offences without giving reasons for departing from that range.

Decision

On the question of manifest excess, the Court rejected the appellant's argument. Hislop J, with whom Beazley JA and Buddin J agreed, found the head sentence was not manifestly excessive. In fact, the Court characterised it as lenient, given the number of offences, the 18-month duration of the scheme, the significant breach of trust involved, and the absence of compelling subjective features.

On the non-parole period, the Court identified error. The established norm for non-parole periods in Commonwealth offences is in the range of approximately 60% to 66.67% of the head sentence, as stated in R v Bernier. The sentencing judge had imposed a non-parole period representing approximately 69% of the head sentence. While that ratio is not impermissible, the sentencing judge made no reference to the ratio in his remarks on sentence and gave no reasons for departing from the normal range.

The Court drew on R v Bugeja, which requires a sentencing judge to advert to the extent to which a conventionally appropriate non-parole period may be inadequate in light of the purposes of sentencing. The absence of any such reasoning led to the inference that the sentencing judge had not turned his mind to the question at all. This constituted error, particularly given that the judge's own findings on rehabilitation were positive, which would ordinarily support a non-parole period within the lower range.

The Court varied the non-parole period to 2 years, producing a ratio consistent with the sentencing judge's findings on rehabilitation and with the normal range identified in the authorities.

Orders Made

  • Leave to appeal granted.
  • Head sentences confirmed in their entirety.
  • Non-parole period quashed and substituted with a non-parole period of 2 years, commencing 14 July 2005 and expiring 13 July 2007.

Key Takeaways

  • The normal range for non-parole periods in Commonwealth offences is approximately 60% to 66.67% of the head sentence, but this range is not immutable and may be departed from where circumstances justify doing so.
  • A sentencing court that departs from the normal non-parole period ratio must provide reasons for doing so. Failure to address the ratio at all in the remarks on sentence supports an inference that the issue was not considered, which constitutes error.
  • Positive findings on rehabilitation prospects ordinarily support a non-parole period within the lower end of the conventional range, and a ratio that departs upward from that range without explanation is inconsistent with those findings.
  • In dismissing the manifest excess ground, the Court of Criminal Appeal confirmed that a total aggregate head sentence for serious, planned, multi-count Commonwealth fraud involving repeated breach of trust may properly be regarded as lenient, even where the offender has no prior convictions and received a 25% discount for guilty pleas.
  • Under s 19AB(1) of the Crimes Act 1914 (Cth), a single non-parole period must be set when sentencing for multiple Commonwealth offences, and the relationship between that period and the aggregate effective sentence remains subject to established sentencing principles.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1914 (Cth), s 19AB(1)
- Criminal Code Act (Cth), s 135(1)

Cases:
- R v Bernier (1998) 102 A Crim R 44
- R v Bugeja [2001] NSWCCA 196
- R v Campos (1999) NSWCCA 339
- R v Lian (1990) 47 A Crim R 444
- R v Moore (2005) NSWCCA 212
- R v Stitt (1998) 102 A Crim R 428
- Power (1974) 131 CLR 623