Citation: McLaren v R [2021] NSWCCA 12
Court: NSW Court of Criminal Appeal
Date: 15 February 2021
Judges: Hoeben CJ at CL, Rothman J, Hamill J
Background
Over six years between 2011 and 2017, the appellant ran a Ponzi scheme defrauding approximately 15 victims of a total of $7.6 million. He falsely represented himself as a skilled financial investor, persuaded victims to transfer funds or superannuation into accounts he controlled, and used those funds for his own purposes or to repay earlier victims. His victims included retirees, a single mother investing a divorce settlement, and a person with whom he had formed a romantic relationship under a false identity.
The appellant pleaded guilty in the Local Court and was sentenced in the District Court by Acting Judge Charteris SC on 17 counts of dishonestly obtaining a financial advantage by deception (s 192E(1)(b) of the Crimes Act 1900 (NSW)) and one count of knowingly dealing with proceeds of crime (s 193B(2)). The sentencing judge applied a 25% discount for the early guilty plea. The aggregate sentence for the 17 fraud counts was 16 years imprisonment with a non-parole period of 12 years, with a concurrent fixed term of 7 years and 6 months for the proceeds offence.
The appellant sought leave to appeal on two grounds: first, that the sentencing process was unbalanced and infected by error in principle; and second, that the aggregate sentence was manifestly excessive.
Legal Issues
- Whether the sentencing judge's language and conduct demonstrated a loss of judicial detachment, effectively rendering the appellant's subjective circumstances irrelevant
- Whether the sentencing judge's remarks to the media after delivering the sentence were consistent with the judicial function
- Whether the aggregate sentence of 16 years with a 12-year non-parole period was manifestly excessive, having regard to the early plea discount and the appellant's subjective circumstances
Decision
The Court of Criminal Appeal found that the sentencing judge's remarks on sentence contained emotive and pejorative language that crossed the line of appropriate judicial conduct. The judgment included passages described by the Court as more consistent with a "pep talk" to the media than a sober exercise of the sentencing function. The Court noted that the judge appeared at points to have "transmogrified" into a champion of the victims, losing the temperance and detachment required of a sentencing judge. While acknowledging that the offending was extremely serious, the Court found that this imbalance constituted an error in principle.
The Court also found that the sentencing judge, despite stating that he had taken the appellant's subjective circumstances and early guilty plea into account, had not meaningfully done so in a way that was reflected in the sentence ultimately imposed. The 25% discount nominally acknowledged had not, on the Court's analysis, actually produced a proportionate reduction when measured against the overall sentence structure.
On manifest excess, the Court accepted that the aggregate sentence of 16 years was plainly unjust given the need to give real weight to the guilty plea, the appellant's subjective circumstances, and established sentencing patterns for comparable offending. The Court resentenced the appellant to an aggregate term of 12 years imprisonment, with a non-parole period of 9 years, while confirming the concurrent fixed term of 7 years and 6 months for the proceeds of crime offence.
Orders Made
- Leave to appeal granted
- Appeal against sentence allowed
- Sentences imposed by the District Court for the 17 fraud offences quashed and replaced with:
- Aggregate term of 12 years imprisonment commencing 11 July 2017, expiring 10 July 2029
- Aggregate non-parole period of 9 years; eligible for parole from 10 July 2026
- Indicative individual sentences confirmed across the 17 counts, ranging from 1 year 6 months (Sequence 43) to 6 years 9 months (Sequence 46)
- Concurrent fixed term of 7 years and 6 months for the proceeds of crime offence confirmed, commencing 11 July 2017 and expiring 10 January 2025
Key Takeaways
- Judicial detachment is a fundamental requirement of the sentencing function: emotive language and conduct suggesting a judge has become an advocate for victims constitutes an error in principle, even where the underlying offending is serious.
- A stated discount for an early guilty plea is not sufficient on its own; the discount must be meaningfully reflected in the sentence ultimately imposed, and failure to give it real weight is a reviewable error.
- Under ss 192E(1)(b) and 193B(2) of the Crimes Act 1900 (NSW), the maximum penalties are 10 and 15 years respectively, and neither offence carries a standard non-parole period, leaving the sentencing exercise heavily dependent on instinctive synthesis of all relevant factors.
- Remarks made by a sentencing judge to the media following delivery of sentence can be relevant to an assessment of whether appropriate judicial balance was maintained throughout the sentencing proceeding.
- In substituting sentence, the Court of Criminal Appeal reduced the aggregate custodial term from 16 years to 12 years, reflecting the errors identified, while affirming that the offending remained an extremely serious example of fraud.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), ss 192E(1)(b), 193B(2)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 53A(2)(b)
Cases:
- Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2
- Berryman v R [2017] NSWCCA 297
- De Angelis v R [2015] NSWCCA 197
- Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54
- Gaffney v R [2009] NSWCCA 160
- Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45
- Ibbotson (a pseudonym) v R [2020] NSWCCA 92
- Johnston v R [2017] NSWCCA 53
- Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37
- Lowndes v The Queen (1999) 195 CLR 665; [1999] HCA 29
- McKittrick v R [2014] NSWCCA 128
- Pereira v R [2018] NSWCCA 171
- PG v R [2017] NSWCCA 179; (2017) 268 A Crim R 61
- Postiglione v The Queen (1997) 189 CLR 295; [1997] HCA 26