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Supreme Court 14 December 2012

R v Milne

[2012] NSWSC 1538

Fraud & dishonesty
CRIMINAL LAW SENTENCE OFFENDER CURRENTLY SERVING A NON DELAY PRINCIPLE OF TOTALITY

Citation: R v Milne [2012] NSWSC 1538
Court: Supreme Court of New South Wales
Date: 14 December 2012
Judge: Fullerton J

Background

The offender, a businessman, pleaded guilty on 13 November 2012 to one count of dishonestly obtaining a gain from the Commonwealth under s 135.1(1) of the Criminal Code Act 1995 (Cth). The offence involved causing income tax returns to be lodged on 7 December 2006, for financial years ending June 2000, June 2001, and June 2005, which omitted income totalling $928,574. The offence arose from the same arrest in February 2008 that had led to earlier proceedings.

Those earlier proceedings resulted in a separate sentence imposed by Johnson J in December 2010, following the offender's conviction after trial for other Commonwealth offences including money laundering. At the time of the current sentencing, the offender was already serving that earlier custodial sentence during his non-parole period.

The current count had originally formed part of a larger six-count indictment. The parties agreed to sever the indictment in 2009, prosecuting the more complex charges first. That prosecutorial sequencing meant the present sentencing occurred roughly two years after the first sentence, raising significant questions about delay, totality, and the operation of s 19AD of the Crimes Act (Cth).

  • How should the guilty plea be treated, given its lateness and the offender's earlier cooperation in narrowing the contested issues at trial?
  • What weight should be given to the offender's subjective circumstances, including a recently diagnosed major depressive disorder, in light of questions raised about the credibility of his treating psychiatrist?
  • Whether the sentence for the current offence should be served concurrently or with some degree of accumulation on the existing sentence.
  • How the principle of totality applies where prosecutorial necessity required two separate curial processes over an extended period.
  • Whether a new single non-parole period should be fixed under s 19AD(2)(e) of the Crimes Act (Cth), and if so, what that period should be.

Decision

Fullerton J accepted that the guilty plea, while entered at a late stage, was nonetheless entitled to some weight. The offender had earlier cooperated with the Crown to narrow contested issues, and the reformulated indictment represented a genuine utility to the proceedings. Her Honour also accepted the psychiatric diagnosis of major depressive disorder, notwithstanding the Crown's challenge to the credibility of the diagnosing psychiatrist based on past disciplinary findings. The diagnosis was treated as a relevant subjective factor moderating the punitive and deterrent aspects of the sentence.

On the central question of concurrency versus accumulation, her Honour rejected the submission that the sentence should be wholly concurrent. The current offending was separate and distinct from the conduct prosecuted in the first trial, and a wholly concurrent sentence would have failed to reflect adequate punishment for it. At the same time, full accumulation was not appropriate given the delay caused by the two-stage prosecution and the requirements of totality.

Applying totality principles in light of the two-year gap between the sentences, her Honour found that an accumulation of one year on the existing sentence appropriately balanced the need for proportionate punishment with the unfairness that can arise when prosecutorial sequencing extends the period over which an offender faces sentencing. The resulting effective sentence across all federal offending was 9 years and 6 months.

Her Honour fixed a new single non-parole period under s 19AD(2)(e), extending the existing non-parole period by three months. Fullerton J acknowledged this disturbed the ratio between head sentence and non-parole period set by Johnson J, but considered the modest extension appropriate given the interrelated impact of delay and the totality principle in the context of a sentence imposed two years earlier.

Orders Made

  • Sentence of 2 years imprisonment, commencing 17 June 2018 and expiring 16 June 2020.
  • New single non-parole period of 5 years, commencing 17 December 2010 and expiring 16 December 2015.
  • Effective total sentence across all federal offending: 9 years and 6 months.

Key Takeaways

  • Under s 19AD of the Crimes Act (Cth), where an offender is serving an existing non-parole period for federal offences and receives a further federal sentence, the sentencing court must either confirm the existing non-parole period, fix a new single non-parole period, or (where appropriate) cancel the non-parole period entirely. It cannot make a recognizance release order.
  • Where prosecutorial necessity requires two separate trials over an extended period, the principle of totality remains operative and can justify a reduced degree of accumulation to account for the delay inherent in that process.
  • A late guilty plea entered after reformulation of an indictment may still attract some mitigation, particularly where the offender has previously cooperated to narrow contested issues ahead of trial.
  • Psychiatric illness diagnosed during a period of custody is a relevant subjective factor in sentencing, even where the offender did not suffer from that condition at the time the offences were committed.
  • Disturbing the ratio between head sentence and non-parole period set by an earlier sentencing judge may be justified where a new non-parole period is required under s 19AD, provided the court accounts for the totality of sentences and the circumstances of the prior sentencing.

Legislation and Cases Referenced

Legislation
- Criminal Code Act 1995 (Cth), s 135.1(1)
- Crimes Act 1901 (Cth), ss 16A, 19AD
- Proceeds of Crime Act 2002 (Cth)

Cases
- Hili v R; Jones v R [2010] HCA 45; 242 CLR 520
- Pearce v R [1998] HCA 57; 194 CLR 610
- R v Todd [1982] 2 NSWLR 517
- Director of Public Prosecutions (Cth) v Gregory [2011] VSCA 145; 211 A Crim R 147
- Wu v R [2011] NSWCCA 102; 211 A Crim R 88
- Milne v R [2012] NSWCCA 24
- R (Cth) v Milne (No 6) [2010] NSWSC 1467
- Blanco v R [1999] NSWCCA 121; 106 A Crim R 303
- R v AEM Snr; KEM; MM [2002] NSWCCA 58
- R v Kay [2004] NSWCCA 130
- R v MAK; R v MSK [2006] NSWCCA 381; 167 A Crim R 159
- R v MMK [2006] NSWCCA 272; 164 A Crim R 481
- R v Nguyen [2006] NSWCCA 369; 166 A Crim R 124
- R v SBR [2012] NSWCCA 233
- R v Scott [2005] NSWCCA 152