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Court of Criminal Appeal 10 June 2009

GAFFNEY, Brendan Eamon v R

[2009] NSWCCA 160

Fraud & dishonesty
CRIMINAL LAW SENTENCING APPEAL AGAINST SEVERITY OF SENTENCE TOTAL NON NO FACILITY FOR DOING SO WHETHER MANIFESTLY EXCESSIVE

Citation: Gaffney, Brendan Eamon v R [2009] NSWCCA 160
Court: NSW Court of Criminal Appeal
Date: 10 June 2009
Judge(s): McClellan CJ at CL, Hall J, Harrison J

Background

The applicant, a relationship manager at a major bank, pleaded guilty in the Local Court to eight counts of obtaining a financial advantage by deception under s 178BA of the Crimes Act 1900. His role placed him in a position of significant seniority and trust, responsible for securing new lending and managing a large portfolio of business clients. The frauds were committed between February 2003 and January 2005 and totalled nearly $3.94 million, of which approximately $3.7 million was never recovered. The sentencing judge found the applicant had gambled away most of the proceeds on horse racing.

A further eight offences (four of making and four of using a false instrument) were taken into account on a Form 1, which is a procedure that allows a court to consider additional, uncharged offences when imposing sentence without recording separate convictions for them. The District Court sentenced the applicant on 31 August 2007, imposing a term of 3 years on each of the eight counts, with some sentences running concurrently and others cumulatively, producing a total effective sentence of 8 years with a single "global" non-parole period of 5 years.

The applicant sought leave to appeal to the Court of Criminal Appeal, challenging both the structural validity of the sentences and their overall severity.

  • Whether the sentencing judge imposed valid sentences in conformity with the Crimes (Sentencing Procedure) Act 1999, particularly ss 44 and 45
  • Whether the sentencing judge failed to assess the criminality of each offence individually, contrary to the principles in Pearce v The Queen (1998) 194 CLR 610
  • Whether the imposition of a single "global" non-parole period spanning multiple individual sentences was permissible under the Act
  • Whether the sentences, individually and in combination, were manifestly excessive

Decision

The Crown conceded that the sentencing judge had failed to impose sentences in conformity with the Crimes (Sentencing Procedure) Act 1999. The judge imposed a uniform 3-year term for every count without differentiating between offences involving amounts ranging from $50,000 to $1.84 million. This failure to evaluate the criminality of each offence separately was inconsistent with the requirements established in Pearce v The Queen, which requires a sentencing court to assess each offence on its own terms before considering questions of totality.

The sentencing judge also purported to set a single non-parole period of 5 years across all sentences, a period longer than any individual sentence imposed. The Court of Criminal Appeal found there was no facility under the Crimes (Sentencing Procedure) Act 1999 to impose such a global non-parole period. The resulting sentence structure could not be translated into a form that complied with the Act, rendering the sentences invalid.

On resentencing, the Court upheld the effective non-parole period of 5 years, finding it was not manifestly excessive given the serious breach of trust, the planned nature of the offending, and the scale of the loss. However, the Court reduced the total effective sentence from 8 years to 6 years, with the balance of term dropping from 3 years to 1 year. Count 7, which involved a significantly smaller sum than the remaining counts, was treated separately and attracted a shorter sentence of 18 months. The Court considered that an extended post-release supervision period was neither warranted nor necessary in the applicant's particular circumstances.

Orders Made

  • Leave to appeal granted and the appeal allowed.
  • The sentences imposed by Woods DCJ on 31 August 2007 were quashed.
  • The applicant was resentenced as follows:
  • Count 1: 3 years and 9 months, with a non-parole period of 3 years (31 August 2007 to 30 August 2010) and a balance of term of 9 months (to 30 May 2011).
  • Count 8: 3 years and 6 months, with a non-parole period of 3 years (31 August 2008 to 30 August 2011) and a balance of term of 6 months (to 28 February 2012). This sentence took into account the eight Form 1 offences.
  • Counts 2, 3, 4, 5 and 6: 3 years each, with a non-parole period of 2 years (31 August 2010 to 30 August 2012) and a balance of term of 1 year (to 30 August 2013).
  • Count 7: 1 year and 6 months, with a non-parole period of 1 year (28 February 2011 to 27 February 2012) and a balance of term of 6 months (to 30 August 2012).
  • First eligible parole date: 30 August 2012.
  • Total effective sentence: 6 years with a non-parole period of 5 years.

Key Takeaways

  • The Court of Criminal Appeal confirmed that there is no facility under the Crimes (Sentencing Procedure) Act 1999 to impose a single "global" non-parole period that spans multiple individual sentences where that period exceeds the length of any one sentence.
  • Under Pearce v The Queen, a sentencing court must separately evaluate the criminality involved in each individual offence before applying the totality principle. Imposing identical terms across counts involving vastly different amounts of money, without differentiation, constitutes error.
  • Imposing structurally invalid sentences that cannot be translated into a form consistent with the Act warrants intervention on appeal, even where the overall quantum of penalty might not independently be characterised as manifestly excessive.
  • In resentencing for serious trust-based fraud, the Court treated the scale of individual losses as a meaningful differentiating factor, warranting a shorter sentence for the count involving the smallest amount.
  • A finding of special circumstances (here, a gambling addiction requiring counselling) does not automatically produce a lengthy supervision period on parole; the sentencing court's assessment of what the offender actually requires after release remains a relevant consideration.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), ss 178BA, 300(1), 300(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), ss 44, 45, 45(4), 48(3)
- Criminal Appeal Act 1912 (NSW), s 5(1)(c)

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Dunn v Regina [2007] NSWCCA 312
- R v McDonald (1994) 71 A Crim R 370
- R v Moon (2000) 117 A Crim R 497