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Court of Criminal Appeal 22 March 2023

McRae v R

[2023] NSWCCA 55

Fraud & dishonesty
APPEAL AGAINST SENTENCE OFFENDERS

Citation: McRae v R [2023] NSWCCA 55
Court: NSW Court of Criminal Appeal
Date: 22 March 2023
Judges: Wilson J, N Adams J, Cavanagh J (Cavanagh J writing, Wilson and N Adams JJ agreeing)

Background

The applicant was a participant in an organised money laundering scheme operating in 2020 and 2021. She was recruited to establish a company, open bank accounts, fly between the Gold Coast and Sydney, deposit cash provided by persons higher in the scheme, and transfer those funds to accounts controlled by a cryptocurrency dealer in Queensland. The total amounts involved were $188,000 (Count 1) and $883,500 (Count 2).

The applicant pleaded guilty in the NSW District Court to two offences under the Crimes Act 1900: dealing with proceeds of crime while reckless as to their character, and dealing with property where there were reasonable grounds to suspect it was proceeds of crime. The sentencing judge imposed a total sentence of 3 years and 6 months imprisonment, with a non-parole period of 1 year and 9 months, allowing for partial accumulation of the individual indicative sentences.

The applicant sought leave to appeal on the grounds that the sentencing judge had erred in assessing her role (including by having undue regard to the conduct of co-offenders), and that the sentence was manifestly excessive.

  • Whether the sentencing judge made factual findings about the applicant's role that were not open on the evidence, including by impermissibly conflating her conduct with that of her co-offenders
  • Whether the total sentence of 3 years and 6 months was manifestly excessive
  • Whether a mathematical comparison of indicative sentences (before applying the guilty plea discount) was an appropriate basis for a manifest excess argument

Decision

Ground 1: Role of the applicant and regard to co-offenders

The Court applied the established test from R v O'Donoghue (1988): the question is whether the sentencing judge's factual findings were open on the evidence. The Court found that the challenged findings were open to the sentencing judge, even where those findings went beyond the agreed facts. Additional evidence, including information the applicant had provided to a clinical psychologist, provided a legitimate basis for the judge's conclusions. The applicant was unable to identify any alternative inferences that were reasonably available on the evidence.

Ground 2: Manifest excess

The applicant's principal argument on manifest excess rested on a mathematical comparison of the indicative sentences. The Court rejected this approach, affirming that sentencing is not a mathematical exercise and that attributing specific numerical weight to individual sentencing components distorts the balancing exercise a judge must perform. There was no evidence the sentencing judge had adopted any impermissible mathematical method. The applicant also failed to point to any other factors or comparative cases suggesting error, and the Court found no basis upon which the sentence could be characterised as manifestly excessive.

Orders Made

  • Leave to appeal granted
  • The appeal dismissed

Key Takeaways

  • The test for challenging factual findings made by a sentencing judge is whether those findings were open on the evidence, as confirmed in R v O'Donoghue (1988) 34 A Crim R 397. Evidence beyond the agreed facts, such as material from a clinical psychologist's report, can legitimately support findings on role and culpability.
  • A sentencing judge is entitled to draw inferences from the evidence as a whole, including in circumstances where no agreed facts expressly address a particular matter.
  • Relying on a mathematical comparison of indicative sentences, before application of a guilty plea discount, is not a sound basis for a manifest excess ground. Sentencing involves a holistic balancing of objective and subjective factors, not arithmetic.
  • In dismissing the manifest excess ground, the Court emphasised that the applicant had not identified any erroneous finding on subjective circumstances, nor pointed to comparable cases suggesting the sentence fell outside an acceptable range.
  • Under ss 193B(3) and 193C(1) of the Crimes Act 1900, the maximum penalties are 10 years and 5 years imprisonment respectively, and neither offence carries a standard non-parole period.

Legislation and Cases Referenced

Legislation
- Crimes Act 1900 (NSW), ss 193B(3), 193C(1)
- Crimes (Sentencing Procedure) Act 1999 (NSW), s 5

Cases
- R v O'Donoghue (1988) 34 A Crim R 397
- Hughes v R [2018] NSWCCA 2
- Merheb v R [2021] NSWCCA 224
- Wong v The Queen (cited within the judgment in the context of mathematical sentencing approaches)