AI-generated summaries. Not legal advice. Always verify against the official judgment on NSW Caselaw.
← All decisions
Court of Criminal Appeal 19 December 2019

Adams v R

[2019] NSWCCA 295

Fraud & dishonesty
CRIMINAL LAW APPEALS APPEAL AGAINST SENTENCE AFFLICTED WOMAN FORGED WILL PAROLE PERIOD OF FIVE YEARS

Citation: Adams v R [2019] NSWCCA 295
Court: NSW Court of Criminal Appeal
Date: 19 December 2019
Judges: Bathurst CJ, Fullerton J, Bellew J

Background

The appellant was convicted by a jury of conspiring with three others to cheat and defraud the beneficiaries of the estate of an elderly woman, Edna Pearson, who suffered from vascular dementia. The conspiracy ran from October 2005 to February 2011. The appellant insinuated herself into the deceased's life under the guise of providing domestic assistance, progressively isolating the deceased from her family and cultivating dependence.

A forged will, purportedly executed in 1999, was lodged with the Public Trustee shortly before the deceased's death in 2008. The will appointed the appellant as sole executrix and directed the bulk of an estate valued at approximately $1.7 million to her, with only nominal bequests of $10,000 each to the deceased's niece and nephew, who had been the true beneficiaries under a genuine 1978 will. Equity proceedings were ultimately settled, with the appellant receiving freehold title to two properties and rental income.

The appellant was sentenced in the District Court to seven years' imprisonment with a non-parole period of five years. She sought leave to appeal that sentence in the Court of Criminal Appeal, arguing errors in the assessment of objective seriousness, a misconstruction of her role in the conspiracy, and manifest excess. There was no appeal against conviction.

  • Whether the sentencing judge erred in his assessment of the objective seriousness of the offence
  • Whether the sentencing judge misconstrued the appellant's role in the conspiracy, particularly given limited direct evidence about how the deceased was first identified as a target
  • Whether the sentencing judge should have taken into account the appellant's depressive disorder as a mitigating factor
  • Whether the sentence of seven years with a five-year non-parole period was manifestly excessive by reference to comparable cases

Decision

On the question of objective seriousness, the Court of Criminal Appeal found no error. The sentencing judge's findings were based on evidence led at trial, and the appellant did not challenge the factual findings as a whole. The Court noted that some paucity of direct evidence about how the deceased was first targeted did not undermine the overall findings, which were reasonably open on the trial evidence. The sentencing judge's description of the conduct as "wicked" was an expression of strong reprobation that was open to him on the facts.

On the question of the appellant's role in the conspiracy, the Court rejected the submission that the sentencing judge had misconstrued it. The evidence plainly supported findings that the appellant was a central participant who cultivated the deceased's dependence over a sustained period, isolated her from family, and was involved in the presentation of a forged will.

Regarding the depressive disorder, the Court noted that no submission had been advanced on this topic at the original sentencing hearing. That omission precluded the appellant from raising it as a sentencing error on appeal.

On manifest excess, the Court examined the three comparable cases relied upon by the appellant and found each was distinguishable in material respects. The conspiracy in the present case generated approximately $500,000, extended over many years, and involved significant emotional harm to the deceased and her family members. The comparable sentences did not support a finding that the sentence imposed was unreasonable or plainly unjust.

Orders Made

  • Leave to appeal granted
  • Appeal dismissed

Key Takeaways

  • In dismissing the appeal, the Court of Criminal Appeal confirmed that a sentencing judge's characterisation of offending in strong moral terms, such as describing conduct as "wicked," does not constitute error where those characterisations reflect the gravity of facts properly found on the evidence.
  • Where a ground of appeal is raised that was never advanced at the original sentencing hearing, such as a mental health condition as a mitigating factor, an appellate court will not treat its omission as a sentencing error.
  • A sentence will only be set aside on the ground of manifest excess where it is unreasonable or plainly unjust; identifying a comparable case with a lower sentence is not, by itself, sufficient to establish that threshold.
  • Comparative sentencing cases must be closely analogous to carry significant weight; distinctions in the duration of the conspiracy, the quantum of financial loss, and the presence of emotional harm to victims are all potentially material.
  • No error was established in the sentencing judge's assessment of the appellant's role as a central participant in the conspiracy, notwithstanding gaps in the direct evidence about the earliest stages of the offending.

Legislation and Cases Referenced

Legislation:
- Crimes Act 1900 (NSW), s 192E(1)(b) (dishonestly obtaining a financial advantage by deception, maximum 10 years)
- Crimes Act 1900 (NSW), s 188(1) (receiving stolen property)

Cases:
- House v The King (1936) 55 CLR 499 (principles governing appellate intervention in sentencing)
- Archer v R [2017] NSWCCA 151
- Page v R [2007] NSWCCA 175
- R v Quinn [2018] NSWCCA 297
- Thangavelautham v R [2016] NSWCCA 141
- Vella v R; Siskos v R [2015] NSWCCA 148
- Zreika v R [2012] NSWCCA 44