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14
Court of Criminal Appeal 16 July 2014

McKittrick v R

[2014] NSWCCA 128

Also reported as (2014) 243 A Crim R 155
Fraud & dishonesty
CRIMINAL LAW SENTENCING OBTAIN FINANCIAL ADVANTAGE BY DECEPTION MULTIPLE COUNTS AMOUNTS INVOLVED EXCEEDING $13 MILLION LOSSES EXCEEDING $1 MILLION

Citation: McKittrick v R [2014] NSWCCA 128
Court: Court of Criminal Appeal, NSW
Date: 16 July 2014
Judges: Simpson J, Davies J, Adamson J

Background

The applicant ran two separate Ponzi schemes, defrauding investors of approximately $6 million in the Coffs Harbour district from May 2003, and a further amount exceeding $1 million in the Newcastle/Hunter Valley area from April 2007. The Newcastle/Hunter Valley scheme continued while the applicant was on bail from charges relating to the Coffs Harbour offences.

In May 2009, a District Court judge sentenced the applicant to 4 years and 6 months imprisonment with a 3-year non-parole period for the Coffs Harbour offences. Despite police being in possession of sufficient evidence to charge the applicant in relation to the Newcastle/Hunter Valley scheme by at least March 2010, Court Attendance Notices for those offences were not issued until December 2011.

A second District Court judge sentenced the applicant in 2012 to 6 years and 6 months with a 5-year non-parole period for the Newcastle/Hunter Valley offences, to be served fully consecutively on the Coffs Harbour sentences. The combined result was a total sentence of 9 years and 6 months with a non-parole period of 8 years, producing a ratio of approximately 84 per cent of the total term, well above the statutory ratio under the Crimes (Sentencing Procedure) Act 1999 (NSW).

  • Whether the sentencing judge gave adequate weight to the significant unexplained delay in charging the applicant for the Newcastle/Hunter Valley offences
  • Whether the second sentencing judge properly applied the totality principle, having regard to the sentences already imposed for the Coffs Harbour offences
  • Whether the combined sentence structure, including the ratio of non-parole period to total term, was appropriate given the accumulation of both sets of sentences
  • Whether the objective seriousness of the offences was correctly assessed

Decision

The Court of Criminal Appeal rejected most grounds of appeal. The majority found no error in how the sentencing judges assessed the objective seriousness of the offences or applied general sentencing principles. However, the Court found error in relation to the combined effect of the sentences on the statutory ratio between the non-parole period and total term.

On delay (ground 4), the judges took differing approaches. Simpson J and Davies J both acknowledged that the delay in charging the applicant after the March 2010 police correspondence was entirely unacceptable and not attributable to the applicant in any way. Indeed, the applicant's legal representatives had actively pressed police to bring charges promptly. Simpson J accepted delay as a relevant sentencing consideration but declined to hold that the second sentencing judge had failed to take it into account. Adamson J agreed, finding no demonstrated error in how delay was addressed.

On totality (ground 5), the Court found that the fully accumulated sentences produced a combined non-parole period to total term ratio of approximately 84 per cent. This excess over the statutory ratio was not accompanied by any finding of special circumstances, and the Court was satisfied the sentencing judge had not appreciated the mathematical effect of full accumulation on the overall ratio. All three judges agreed this constituted error warranting resentencing, though they differed on what the correct restructured sentence should be.

Simpson J and Adamson J agreed that the total length of the sentence should remain intact but the non-parole period should be reduced by one year to restore proportionality. Davies J would have reduced both the non-parole period and the total term by a year through a finding of special circumstances, but that approach did not command majority support.

Orders Made

  • Leave to appeal granted
  • Appeal allowed in part
  • Sentence imposed by Maiden DCJ on sequence 4 quashed
  • In lieu thereof, the applicant sentenced to imprisonment comprising a non-parole period of 1 year commencing 27 May 2015 and expiring 26 May 2016, with a balance of term of 2 years and 6 months expiring 26 November 2018

Key Takeaways

  • Where two sets of sentences are fully accumulated and no finding of special circumstances is made, the Court of Criminal Appeal confirmed that the combined ratio of non-parole period to total term must comply with the statutory ratio under s 44(2) of the Crimes (Sentencing Procedure) Act 1999 (NSW).
  • Unexplained and substantial prosecutorial delay in charging an offender is a recognised sentencing consideration, particularly where the delay was not caused by the offender and the offender actively sought to have charges brought promptly.
  • The principles from Mill v The Queen (1988) 166 CLR 59 and R v Todd [1982] 2 NSWLR 517, developed in the context of interstate delays, do not apply directly where all offending occurred within NSW, though delay remains a relevant factor in that context.
  • A second sentencing court dealing with offences by the same offender bears an obligation to have regard to sentences already imposed and to apply the totality principle, so that the combined result reflects what would likely have been imposed in a single sentencing exercise.
  • Absence of reasons for a non-parole period to total term ratio that exceeds the statutory ratio may, in the context of full accumulation, support a finding that the sentencing judge did not appreciate the combined mathematical effect of the sentences imposed.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW)
- Crimes (Sentencing Procedure) Act 1999 (NSW), particularly s 44(2)
- Criminal Appeal Act 1912 (NSW), s 6
- Sentencing Act 1989 (NSW)

Cases
- Mill v The Queen (1988) 166 CLR 59
- R v Todd [1982] 2 NSWLR 517
- R v Blanco [1999] NSWCCA 121; 106 A Crim R 303
- Pearce v The Queen (1998) 194 CLR 610
- Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357
- Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120
- House v The King (1936) 55 CLR 499
- AB v R [2014] NSWCCA 31
- Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115
- R v MAK (2006) 167 A Crim R 159
- R v Cameron [2005] NSWCCA 357