McKittrick v R [2014] NSWCCA 128

Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: McKittrick v R [2014] NSWCCA 128 Hearing dates: 2 April 2014 Decision date: 16 July 2014 Before: Simpson J at [1] Davies J at [48] Adamson J at [147] Decision: 1. Grant leave to appeal; 2. Allow the appeal in part; 3. Quash the sentence imposed by Maiden DCJ in respect of sequence 4; 4. In lieu thereof, in respect of that offence, the Applicant be sentenced to imprisonment made up of a non-parole period of 1 year, commencing on 27 May 2015 and expiring on 26 May 2016, with a balance of term of 2 years and 6 months, expiring on 26 November 2018. Catchwords: CRIMINAL LAW - sentencing - obtain financial advantage by deception - multiple counts - two Ponzi schemes at different times in different locations - second scheme operated while applicant on bail from charges relating to first scheme - amounts involved exceeding $13 million - losses exceeding $1 million - delay in charging for second scheme - whether taken into account on sentence - totality principle - sentencing by different judges for each scheme - whether second judge had regard to totality of offending and sentence imposed by first judge - accumulation and effect on statutory ratio - variation to non-parole period Legislation Cited: Crimes Act 1900 (NSW) Crimes (Sentencing Procedure) Act 1999 (NSW) Criminal Appeal Act 1912 (NSW) Sentencing Act 1989 (NSW) Cases Cited: AB v R [2014] NSWCCA 31 Abbas, Bodiotis, Taleb and Amoun v R [2013] NSWCCA 115 Baghdadi v R [2012] NSWCCA 212 House v The King (1936) 55 CLR 499 John Michael Higgins v R [2006] NSWCCA 38 Markarian v The Queen [2005] HCA 25; (2005) 228 CLR 357 Mill v The Queen (1988) 166 CLR 59 Muldrock v The Queen [2011] HCA 39; (2011) 244 CLR 120 Pearce v The Queen (1998) 194 CLR 610 R v Blanco [1999] NSWCCA 121; 106 A Crim R 303 R v Boulden [2006] NSWSC 1274 R v Cameron [2005] NSWCCA 357 R v Kelly [2006] NSWSC 1142 R v MAK (2006) 167 A Crim R 159 R v Todd [1982] 2 NSWLR 517 R v V (1998) 99 A Crim R 297 Texts Cited: New South Wales Legislative Assembly Parliamentary Debates (Hansard), 10 May 1989 Category: Principal judgment Parties: Patricia Lillian McKittrick (Applicant) Crown Representation: Counsel: A Miller (Applicant) N Noman SC (Crown) Solicitors: Bell Lawyers (Applicant) Solicitor for Public Prosecutions (Crown) File Number(s): 2011/415324 Decision under appeal Date of Decision: 2012-07-25 00:00:00 Before: Maiden DCJ File Number(s): 2011/415324