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39
Court of Criminal Appeal 26 June 2013

Delaney v R; R v Delaney

[2013] NSWCCA 150

Also reported as (2013) 230 A Crim R 581
Fraud & dishonesty
CRIMINAL LAW CONVICTION APPEAL DEMAND MONEY WITH MENACES CONTINUING EFFECT OF ORIGINAL DEMAND ELEMENTS OF OFFENCES DIFFERENT NO ABUSE OF PROCESS

Citation: Delaney v R; R v Delaney [2013] NSWCCA 150
Court: NSW Court of Criminal Appeal
Date: 26 June 2013
Judges: Hoeben CJ at CL; Harrison J; Beech-Jones J

Background

The appellant was a member of the Rebels Motorcycle Club who, together with a co-offender, attended a newly opened tattoo shop in Raymond Terrace in May 2010. On 3 May 2010, the appellant confronted the shop owner and demanded $200 per week in protection money, threatening to "blow your shop up" and "run you out of town." The victim paid $200 the following day when the appellant and his co-offender met him at a McDonald's carpark, and then continued making weekly payments until September 2010.

The appellant was tried by judge alone and convicted on four counts: two counts of demanding property with menaces in company (3 and 4 May 2010), one count of receiving proceeds of crime (4 May 2010), and one count of demanding property with menaces (13 May 2010, committed through other club members under joint criminal enterprise principles). He was sentenced to concurrent terms totalling a non-parole period of 10 months.

Two appeals came before the Court of Criminal Appeal together: the appellant challenged his convictions on Counts 2 and 4, and the Crown appealed the sentence as manifestly inadequate.

  • Whether Counts 2 and 4 were made out when no fresh demand or threat was made on those dates, and the appellant was not personally present on 13 May 2010
  • Whether the original demand on 3 May 2010 had a continuing effect capable of founding liability on subsequent payment occasions
  • Whether including the money laundering count (Count 3) alongside the extortion counts constituted an abuse of process
  • Whether the Crown could rely on the "parity principle" to increase a sentence on appeal
  • Whether the sentences imposed were, individually or in aggregate, manifestly inadequate

Decision

Conviction appeal (Counts 2 and 4): The Court rejected the argument that a fresh demand was required on each occasion. The initial demand on 3 May 2010 carried a continuing effect: it established a standing threat that the weekly payments were made to satisfy. The trial judge was entitled to find that the payment on 4 May was made in direct response to that earlier demand, and that the appellant's presence at the McDonald's carpark reinforced and gave effect to the ongoing menace. Accordingly, Count 2 was properly established.

On Count 4, the Court accepted that joint criminal enterprise principles applied. The appellant had been found by the trial judge to be a prime mover in the enterprise from its outset, and there was no evidence he had withdrawn from it. The collection of money on 13 May by other club members was a foreseeable continuation of the enterprise the appellant had established, and his conviction on that count was not unreasonable.

Abuse of process (Count 3): The Court found no abuse of process in charging the money laundering count alongside the extortion counts. Although the offending conduct substantially overlapped, the elements of the offences under s 99 and s 193B(2) of the Crimes Act 1900 are different. A prosecutor may properly charge distinct offences arising from the same conduct where each offence has genuinely separate elements.

Crown sentence appeal: The Court dismissed the Crown's appeal. The sentencing judge had correctly identified the objective seriousness of the offending, taken the relevant aggravating features into account, and given appropriate weight to the appellant's significant subjective circumstances, including his role as sole carer for two young children, his history of trauma, post-traumatic stress disorder, and severe depression. The Court found that concurrent sentences were a permissible sentencing approach given the substantial overlap in the offending, and that the sentences were not manifestly inadequate. The Court also noted that the parity principle is not a tool available to the Crown to increase a sentence simply because co-offenders received heavier penalties.

Orders Made

  • The appellant's appeal against conviction was dismissed.
  • The Crown's appeal against sentence was dismissed.

Key Takeaways

  • A demand made under s 99 of the Crimes Act 1900 can have a continuing effect, such that subsequent payments made in response to the original threat may found separate offences without requiring proof of a fresh demand on each occasion.
  • Where a defendant establishes and participates in a joint criminal enterprise to extort ongoing payments, convictions for later collections by co-offenders are available even when the defendant is not personally present, provided the defendant has not withdrawn from the enterprise.
  • Charging a money laundering offence alongside extortion counts does not constitute an abuse of process where the elements of the two offences are genuinely distinct, even if the underlying conduct overlaps substantially.
  • The Court of Criminal Appeal confirmed that the parity principle is not available to the Crown as a ground for increasing a sentence: the principle exists to protect offenders from disproportionate disparity, not to lift sentences upward to match harsher outcomes for co-offenders.
  • In dismissing the Crown's sentence appeal, the Court affirmed that a sentencing judge may properly treat concurrent sentences as appropriate where multiple counts arise from closely overlapping offending, and may give significant weight to an offender's role as a primary carer for young children as part of the intuitive synthesis process.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW): ss 99(1), 99(2), 193B(2)
- Criminal Appeal Act 1912 (NSW): s 5D
- Criminal Code Act 1995 (Cth): s 400.6(1)
- Copyright Act 1968 (Cth): ss 135ASB(1), 135ASC(1)

Cases:
- Muldrock v The Queen [2011] HCA 39; 244 CLR 120
- Pearce v The Queen [1998] HCA 57; 194 CLR 610
- House v R [1936] HCA 40; 55 CLR 499
- Markarian v R [2005] HCA 25; 228 CLR 357
- Lowe v R [1984] HCA 46; 154 CLR 606
- Carroll v The Queen [2009] HCA 13; 83 ALJR 579
- Austin v R [1989] HCA 26; 166 CLR 669
- Nahlous v R [2010] NSWCCA 58; 77 NSWLR 463
- Cahyadi v R [2007] NSWCCA 1; 168 A Crim R 41
- R v Collister (1955) 39 Cr App R 100
- R v Edwards (1996) 90 A Crim R 510
- MH v Regina [2011] NSWCCA 230
- R v Anderson [2012] NSWCCA 175
- Rae v R (1998) 45 NSWLR 546
- R v Nguyen [2010] NSWCCA 331
- Regina v Robert Brian Grbin [2004] NSWCCA 220