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Court of Criminal Appeal 22 June 2011

McMAHON v R

[2011] NSWCCA 147

Fraud & dishonesty
CRIMINAL LAW SENTENCE APPEAL PLEAS OF GUILTY WHETHER ERROR IN SETTING NON PAROLE PERIOD.

Citation: McMahon v R [2011] NSWCCA 147
Court: NSW Court of Criminal Appeal
Date: 22 June 2011
Judges: Hodgson JA, Hoeben J, Grove AJ

Background

The appellant pleaded guilty in the District Court to 81 charges spanning two broad categories: 42 identity fraud offences (including passport fraud, departing Australia as an undischarged bankrupt without trustee consent, and operating bank accounts under false names) and 39 tax fraud offences (obtaining or attempting to obtain a financial advantage from a Commonwealth entity by deception). A further 35 summary offences relating to false statements to the Australian Electoral Commission were also dealt with at sentencing.

The sentencing judge, Tupman DCJ, imposed an effective aggregate head sentence of 6 years' imprisonment with a single non-parole period of 4 years, commencing 25 September 2009. The offences reflected a sustained course of conduct, including the accumulation of false identity documents in the names of deceased persons, carried out over a number of years while the appellant was an undischarged bankrupt.

The appellant sought leave to appeal on several grounds, arguing the sentences were excessive, that certain mitigating factors were given insufficient weight, and that the sentencing judge's approach to non-parole period and character evidence was flawed.

  • Whether the sentencing judge correctly applied the principle in Pearce v The Queen when grouping and structuring individual sentences across multiple counts
  • Whether proper weight was given to the appellant's cooperation, particularly in the context of orders made under the Proceeds of Crime Act 2002 (Cth)
  • Whether the sentencing judge erred in having regard to findings made by the Independent Commission Against Corruption (ICAC) when assessing the appellant's character
  • Whether the sentencing judge erred in setting the non-parole period by reference to a fixed percentage proportion (60 to 66 per cent) of the head sentence rather than on the particular facts
  • Whether, under s 6(3) of the Criminal Appeal Act 1912, the phrase "some other sentence" refers to each individual sentence under appeal or to the overall effective sentence

Decision

ICAC findings and character: The Court accepted that the sentencing judge erred in relying on adverse ICAC findings when assessing the appellant's character, given those findings were not established to any criminal or civil standard by a court of law. However, this error did not ultimately affect the outcome, as the Court found no lesser sentence was warranted.

Non-parole period: The sentencing judge's reasoning contained an error in that she applied a percentage-based formula (60 to 66 per cent) to fix the non-parole period rather than determining it on the specific facts of the case. The Court of Criminal Appeal confirmed, drawing on the High Court's guidance in Hili v The Queen, that the non-parole period must be fixed according to each case's individual circumstances. Despite identifying this error in reasoning, the Court found that the 4-year non-parole period was not itself excessive and no lesser period was warranted.

White collar crime and non-parole periods: The Court rejected the appellant's submission that white collar crime, being non-violent, should attract a substantial gap between the head sentence and non-parole period. The Court characterised that proposition as out of step with current community standards, observing that serious tax fraud is now viewed as a grave offence affecting the whole community and that sentences must carry both deterrent and punitive effect.

The s 6(3) question: Hodgson JA noted the unresolved question of whether "some other sentence" in s 6(3) of the Criminal Appeal Act 1912 refers to individual sentences or the overall effective sentence. Without resolving the point, his Honour observed that even on the narrower interpretation, other sentences imposed on the same offender can legitimately be taken into account, particularly where totality is in issue or a single non-parole period has been fixed across multiple federal offences. If no practical result would flow from a successful appeal on one sentence, the Court could refuse leave on that ground.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • Although error was identified in the sentencing judge's use of ICAC findings for character assessment and in her percentage-based approach to fixing the non-parole period, neither error was sufficient to disturb the sentences imposed, as the Court of Criminal Appeal found no lesser sentence was warranted on the facts.
  • Under Hili v The Queen, the appropriate non-parole period must be determined by reference to the particular circumstances of each case rather than by applying a fixed percentage formula to the head sentence.
  • A conviction for serious tax fraud does not attract any sentencing principle favouring a generous gap between head sentence and non-parole period simply because the offending was non-violent; the Court confirmed that community standards now treat such fraud as grave, deliberate criminality warranting significant punishment and deterrence.
  • Hodgson JA confirmed that even if "some other sentence" in s 6(3) of the Criminal Appeal Act 1912 refers to individual sentences, a court may still consider other sentences when assessing totality, concurrency, or the overall period of full-time custody, particularly where a single non-parole period covers multiple federal offences under s 19AB of the Crimes Act 1914 (Cth).
  • Where an appeal ground is made out but no practical reduction in the total sentence would result, the Court of Criminal Appeal may decline to grant leave on that ground.

Legislation and Cases Referenced

Legislation:
- Criminal Appeal Act 1912 (NSW), s 6(3)
- Crimes Act 1914 (Cth), s 19AB
- Criminal Code 1995 (Cth), ss 11.1, 134.2
- Passport Act 1938 (Cth), s 10(1)(a)
- Bankruptcy Act 1966 (Cth), s 272(1)
- Financial Transactions Reports Act 1988 (Cth), ss 24(1), 94(4)(aa)
- Proceeds of Crime Act 2002 (Cth)
- Criminal Procedure Act 1986 (NSW), s 166

Cases:
- Pearce v The Queen [1998] HCA 57; (1998) 194 CLR 610
- Hili v The Queen [2010] HCA 45; (2010) 85 ALJR 195
- Johnson v The Queen [2004] HCA 15; (2004) 78 ALJR 616
- Mill v The Queen (1988) 161 CLR 59
- Arnaout v R [2008] NSWCCA 278; (2008) 191 A Crim R 149
- R v Corbett (1991) 52 A Crim R 112
- R v Williams [2005] NSWSC 315; (2005) 152 A Crim R 548
- R v Knight [2004] NSWCCA 145
- Gorman v R [2002] NSWCCA 516
- Carter v The Queen (2007) 173 A Crim R 458
- R v Alimic [2006] VSCA 273
- Wilkins v R (1998) 38 A Crim R 445