R v Hinchliffe [2013] NSWCCA 327

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: R v Hinchliffe [2013] NSWCCA 327 Hearing dates: 2 December 2013 Decision date: 20 December 2013 Before: Leeming JA at [1] Johnson J at [2] Hall J at [307] Decision: Decision Crown appeal allowed. Sentences imposed upon the Respondent in the District Court on 14 June 2013 are quashed. In lieu thereof, the Respondent is sentenced as follows: (i)for Count 1, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 June 2013 and expiring on 20 June 2014, (ii)on Count 2, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 September 2013 and expiring on 20 September 2014, (iii)for Count 3, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 December 2013 and expiring on 20 December 2014, (iv)for Count 4, the Respondent is sentenced to a fixed term of imprisonment for 12 months commencing on 21 December 2013 and expiring on 20 December 2014, (v)for Count 5, and taking into account the seven offences on the Form 1, the Respondent is sentenced to imprisonment comprising a non-parole period of one year and six months to date from 21 March 2014 and to expire on 20 September 2015, with a balance of term of one year and six months commencing on 21 September 2015 and expiring on 20 March 2017. The earliest date upon which the Respondent will be eligible for release to parole is 21 September 2015. Recommendation It is recommend that the psychiatric report of Dr Richard Furst 26 November 2013, together with the psychological report of Ms Emma-Jane Barclay dated 7 November 2013 be furnished to relevant authorities within Justice Health and the Department of Corrective Services, to assist the treatment and classification of the Respondent in custody. Catchwords: CRIMINAL LAW - sentencing - Crown appeal - Respondent pleaded guilty to five counts of defrauding a body corporate as a director contrary to s.176A Crimes Act 1900 with seven similar offences on a Form 1 - offences committed over 12-month period - Respondent obtained more than $1.5 million - Respondent sentenced to two years' imprisonment to be served by way of intensive correction order - whether factual error in characterisation of offences - whether error in assessment of objective gravity - whether error in approach to Form 1 offences - whether undue weight given to Respondent's subjective circumstances - heavy reliance upon psychiatric evidence where Respondent did not give evidence - whether erroneous to sentence by way of intensive correction order - whether sentences manifestly inadequate - errors established - sentences manifestly inadequate - whether residual discretion should be exercised to dismiss Crown appeal - Crown representative had contributed to factual error - held discretion ought not be exercised - interests of justice required resentencing - objective gravity of offences - importance of general deterrence for offences of fraud committed by company directors - Respondent resentenced to terms of full-time imprisonment Legislation Cited: Crimes Act 1900 Crimes (Sentencing Procedure) Act 1999 Criminal Appeal Act 1912 Cases Cited: Abbas v R [2013] NSWCCA 115 Bugmy v The Queen [2013] HCA 37; 87 ALJR 1022 Carroll v The Queen [2009] HCA 13; 83 ALJR 579 Director of Public Prosecutions (Cth) v De La Rosa [2010] NSWCCA 194; 79 NSWLR 1 Green v The Queen [2011] HCA 49; 244 CLR 462 Hili v The Queen [2010] HCA 45; 242 CLR 520 House v The King [1936] HCA 40; 55 CLR 499Majid v R [2010] NSWCCA 121 Markarian v The Queen [2005] HCA 25; 228 CLR 357 Milne v R [2012] NSWCCA 24; 219 A Crim R 237 Mulato v R [2006] NSWCCA 282 R v Baker [2000] NSWCCA 85 R v Ball [2013] NSWCCA 126 R v Dinh [2010] NSWCCA 74; 199 A Crim R 573 R v Donald [2013] NSWCCA 238 R v Geddes (1936) 36 SR(NSW) 554 R v Giam (No. 2) [1999] NSWCCA 378; 109 A Crim R 348 R v Glynatsis [2013] NSWCCA 131 R v JW [2010] NSWCCA 49; 77 NSWLR 7 R v Kong [2013] SASCFC 15; 115 SASR 425 R v MAK [2006] NSWCCA 381; 167 A Crim R 159 R v McGourty [2002] NSWCCA 335 R v Merritt [2004] NSWCCA 19; 59 NSWLR 557 R v Palu [2002] NSWCCA 381; 134 A Crim R 174 R v Pogson [2012] NSWCCA 225; 82 NSWLR 60 R v Qutami [2001] NSWCCA 353; 127 A Crim R 369 R v Radich [1954] NZLR 86 R v Rushby [1977] 1 NSWLR 594 R v Scott [2005] NSWCCA 152 R v Speechley [2012] NSWCCA 130; 221 A Crim R 175 R v Tannous [2012] NSWCCA 243 R v Williams [2005] NSWSC 315; 152 A Crim R 548 Stratford v R [2007] NSWCCA 279 The Queen v Olbrich [1999] HCA 54; 199 CLR 270 Weininger v The Queen [2003] HCA 14; 212 CLR 629 Texts Cited: --- Category: Principal judgment Parties: Regina (Applicant) Adam Samuel Hinchliffe (Respondent) Representation: Counsel: Ms HM Wilson SC (Applicant) Mr SJ Odgers SC (Respondent) Solicitors: Solicitor for Public Prosecutions (Applicant) Legal Aid (NSW) (Respondent) File Number(s): 2009/137251 Publication restriction: --- Decision under appeal Citation: --- Date of Decision: 2013-06-14 00:00:00 Before: Jeffreys DCJ File Number(s): 2009/137251