McLaren v R

[2021] NSWCCA 12

Court of Criminal Appeal (NSW)|2020-06-17|Before: Hoeben CJ, Rothman J, Hamill J

View original source

At a glance

Source facts

Court

Court of Criminal Appeal (NSW)

Decision date

2020-06-17

Before

Hoeben CJ, Rothman J, Hamill J

Catchwords

Zirilli v R (2014) 253 CLR 58
[2000] HCA 54 Gaffney v R [2009] NSWCCA 160 Hili v The Queen (2010) 242 CLR 520
[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

Source

Original judgment source is linked above.

Catchwords

Zirilli v R (2014) 253 CLR 58[2000] HCA 54 Gaffney v R [2009] NSWCCA 160 Hili v The Queen (2010) 242 CLR 520[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(2014) 241 A Crim R 544 Siwek v R [2017] NSWCCA 178 Strbak v The Queen [2020] HCA 10

Judgment (43 paragraphs)

[1]

R v Burke [2002] NSWCCA 353 R v Clarke [2019] NSWDC 2 R v Dimitri De Angelis [2013] NSWDC 79 R v Kennedy [2019] NSWDC 359 R v Nykolyn [2012] NSWCCA 219 SHR v R [2014] NSWCCA 94; (2014) 241 A Crim R 544 Siwek v R [2017] NSWCCA 178 Strbak v The Queen [2020] HCA 10; (2020) 280 A Crim R 285 Stroud v R [2019] NSWCCA 249 Whyte v R [2019] NSWCCA 218 R v Moore (NSWCCA 12 April 1994, unreported) Category: Principal judgment Parties: Hamish Earle McLaren (Applicant) Regina (Respondent) Representation: Counsel: G Wendler (Applicant) F Veltro (Respondent)

[2]

[17]

Subjective Case

The applicant was aged 41 to 47 at the time of his offending which spanned a period of six years. He was 49 years old at the time of sentence. By June 2019 the applicant had spent approximately 2 years in custody. He will be in his sixties by the time the sentence imposed by the sentencing Judge expires. The applicant had no previous convictions recorded in NSW. However, Charteris SC ADCJ did not regard the applicant as a first offender as he "may have been considered a first offender at the time of his first offending but that has been swamped by the behaviour that continued on over the next six years" (ROS 42). His Honour found that the applicant's early plea of guilty was "the only mitigating feature" (ROS 46). His Honour found the applicant's prospects of rehabilitation to be "extremely guarded" (ROS 43) and was loath to find "at all" that the applicant was unlikely to re-offend having regard to the offender's "planned and deceitful conduct" (ROS 42).
The applicant tendered a bundle of documents on sentence including a one- page handwritten letter to the sentencing Judge and a signed document undertaking to do anything to allow for the release of funds to the victims from any of his personal and company accounts (including superannuation entitlements). Charteris SC ADCJ said at ROS 35: "I must say that that letter and the other material tendered does not persuade me remotely that this man is sorry for others. I do not believe he has any remorse. I believe he is consumed by himself. He was driven by stealing the money of other citizens, all of whom trusted him and were no doubt good people. His one focus was his wellbeing, so that he could live apparently the high life, spending the retirement savings they had put aside for their autumn years. I consider it is likely he is sorry only about his own predicament; that is what he regrets. He has proceeded on the basis that he would not be brought to account, that his judgment day would not come. I am not impressed by his letter when it is considered with the remaining material before the Court."
In relation to remorse, Charteris SC ACDJ said at ROS 42: "It was urged upon me that I should accept that the offender by his plea and by evidence of his statements to others (including his brother-in-law, the psychologist, and the psychiatrist) is remorseful. The law provides for a discount from a sentence if someone is remorseful as defined in the legislation. As I have already observed, regrettably I have come to the view that Mr McLaren is not remorseful. Mr McLaren is sorry for no one other than himself. He is sorry for his own predicament. He is not truly sorry for the ruinous results of his outrageous conduct."
Surf Lifesaving Records demonstrated the applicant's involvement since about 2006. Charteris SC ADCJ found this was "to [the applicant's] credit" (ROS 38).

[18]

Psychologist and Psychiatrist Reports

Reports from Dr Richard Furst, a psychiatrist, and Mr Philip Gorrell, a psychologist, were tendered on sentence. The applicant was assessed by Dr Furst on 1 February 2019 and by Mr Gorrell on 4 and 14 February 2019. The history provided by the applicant at each assessment was described as "broadly consistent" by Dr Furst. However, Mr Gorrell noted that his interview with the applicant was "full of inconsistencies and those inconsistencies appear to be based on Mr McLaren attempting to represent himself in a positive light". Despite this, Mr Gorrell extracted the information he believed to be consistent and concluded that: "Mr McLaren's offences appear resultant of an unusual upbringing where he felt he had to earn acceptance from his father by achieving highly in sport; being abandoned by his parents whilst still at school; being a loner who from the upbringing interaction with his father, believed in the importance and need to impress others."
At around the time the applicant was in year 10 of high school, his family relocated away from Sydney and he resided with a foster family. At the end of year 10, he left high school and started working as a gardener and a landscaper. He worked in search and rescue and as a ski instructor in the snowfields of Canada and New South Wales. He began share trading in 1995 as a trainee. By the early 2000s he had established his own trading business. The business did not do well and resulted in a civil court case in 2003 and, ultimately, his bankruptcy. Charteris SC ADCJ took into account the applicant's previous bankruptcy as a factor militating against the applicant's prospects of rehabilitation and likelihood of reoffending. The adverse publicity from that event led the applicant to relinquish his family name and adopt the name "McLaren". It also took a toll on his family relationships and as a result he has since had no contact with one of his sisters. In 2016 he saw his father for the first time in 16 years. The applicant separated from his wife in December 2012 and described his life at that point as "spiralling out of control".
Charteris SC ADCJ noted that the applicant provided an account of his personal and employment history to Dr Furst and Mr Gorrell. His Honour noted that "the offender is able to put the most favourable gloss on many things including his previous work history" (ROS 40).
Mr Gorrell administered a Beck Depression Inventory test which measures attitudes and symptoms of depression based on self-report. The applicant scored 40 which equates to a possible diagnosis of severe depression. Mr Gorrell suspected that the applicant "was providing answers that he best thought would help his cause". Mr Gorrell also administered the Personality Assessment Inventory (PAI), although due to the applicant's scores on validity subscales, the test results could not be considered valid. Mr Gorrell concluded that the applicant's responses appeared to be "an attempt to best represent himself rather than be truthful". Similarly, Dr Furst reported that the applicant's demeanour was inconsistent with the above results and that there is "clearly a large degree of psychopathology in [the applicant's] presentation and patterns of behaviour". Charteris SC ADCJ concluded that the findings by Mr Gorrell and Dr Furst were "not favourable" to the applicant.
Charteris SC ADCJ found the applicant was motivated by greed and not need. His Honour accepted the conclusions of Dr Furst's report which stated: "Although he now expresses regret, Mr McLaren's actions over a number of years have demonstrated a callous disregard for the multiple victims of his fraudulent offences, most of whom lost substantial sums of money, if not their life savings. In this respect, I am of the opinion Mr McLaren's actions were likely driven by greed and deficient personality traits rather than any overt mental illness or mental disorder."

[19]

Character references

Written character testimonials were provided by Christopher Rourke, the applicant's brother-in-law and Barry Kachkowski, a friend whom the applicant met skiing in Canada in 1989. Mr Kachkowski described the applicant as a "supportive and loyal friend" and his behaviour as "uncharacteristic". He believed the applicant's divorce "took a heavy toll on him mentally and emotionally" due to being cut off from his three step-sons. Charteris SC ADCJ concluded that this testimonial was "not of much moment" (ROS 38).
Mr Rourke described the applicant as a "loving and fun uncle to my four children, a caring and protective brother to his sister Julie and a solid mate to me". He considered the applicant to be remorseful and determined to "turn his life around". Charteris SC ACDJ did not share Mr Rourke's optimism and found him to be unreliable (ROS 36 and 38).
Mr Rourke also gave evidence orally before the Court during the sentence proceedings. He gave evidence that he worked with the applicant in futures trading in or around 2000. Mr Rourke traded with his own money, but the applicant was trading with clients' money and Mr Rourke described him as "disorganised", "impulsive" and unable to "read the market". He was cross-examined on his comments to Mr Gorrell, which were included in the psychologist's report: "Q. You've told the psychologist he wants people to think the best of him. He buys nice suits to impress; do you remember telling the psychologist that? A. Yes. Q. You also said, "A strange thing about him is that he will watch a James Bond movie and then will dress like James Bond. He will drive cars like what James Bond drives;" do you remember telling the psychologist that? A. Yes, sir. Q. What were you referring to? Were you suggesting that he was a fantasist, in your opinion? A. Yeah, I mean, he, he's just got a, a personality where he'd, he'd watch something and get totally involved in it and think that he could be it."
Mr Rourke gave evidence that the applicant "had a tendency to tell lies" and was diagnosed with bipolar disorder for which he received medication. There was no other evidence of this. Dr Furst found that there was "no indication that [the applicant] suffered from a major mental illness in his teens, adolescence or early 20s" and noted that he did not have any emergency psychiatric presentations or admissions.
Mr Rourke gave further evidence that the applicant had owned an Aston Martin and two Ferraris, although at the time Mr Rourke believed these cars were on loan from the car dealer.
A total loss of $5.4 million was unexplained after accounting for repayments made to the victims, investment fees and unsuccessful trading losses. In oral submissions, Mr Wendler urged the court to accept that this money was spent "on lifestyle situations" including cars and first-class travel. The prosecution was unable to prove where the money was spent or where it was now, if there was any left.

[23]

That the sentencing process was unbalanced and attended by error in principle in that the Court's focus was almost entirely upon the objective criminality of the applicant rendering the applicant's plea of guilty at the earliest opportunity, his subjective circumstances and his rehabilitation of little consequence.

While the applicant did not challenge specifically any of the adverse factual findings made by the sentencing Judge, he submitted that the record of proceedings, and the judgment on sentence, demonstrated that the approach of the sentencing Judge was unbalanced and focused almost entirely on the objective seriousness of the offence while disregarding the applicant's lack of convictions and personal circumstances. In essence, it was submitted that the Judge became the victims' advocate and exhibited a lack of judicial impartiality and detachment. It was submitted that this "[rendered] the Applicant's subjective circumstances of titular value". The same was said of the 25% discount for the early plea of guilty. While counsel correctly acknowledged that the discount was applied to the individual or putative sentences, in accordance with the authority of this Court, [4] it was pointed out that if one considered the aggregate sentence, the starting point was around 21 years with a non-parole period of around 16 years.
On the hearing of the appeal, counsel submitted that "his Honour effectively transmogrified himself as a champion of the victims". Mr Wendler expanded on those submissions by reference to a number of parts of the transcript of proceedings and the judgment on sentence. He submitted: "His Honour then went on to make this further observation: 'In my experience as [a] lawyer and as a judge living in our community, the members of our community absolutely abhor the fraudulent activities of individuals who target the assets of other innocent citizens and steal those assets. I've been a judge in this Court for more than 16 years and later years as an acting judge, and as a lawyer [I have practised] since 1973. I have appeared for the prosecution and the accused in jury trials over the years. In my association with the criminal [law] there's always been knowledge that our community disapproves in the strongest terms of people engaged in such fraudulent conduct. The law itself acknowledges that position'. Within the terms of s 3 of the Sentencing Act much of that passage is justified. The collateral flavour of that passage clearly, in my respectful submission, insinuates that his Honour took a particular stance against this offender, aligned himself as a champion with the victims and sought in effect to be their cudgel so far as the sentencing exercise is concerned." [5]
It is impossible to avoid the conclusion that there is real substance in Mr Wendler's submissions. It is one thing for a Judge to make almost exclusively adverse findings against a person standing for sentence and to emphasise the serious and repetitive nature of the offending and the impact of the crimes on the victims. It is another thing for the sentencing proceedings and remarks to give the appearance of a lack of temperance and impartiality. In this case, there was perhaps no individual comment or incident that, considered in isolation, gave rise to such concerns. However, there was an accumulation of comments and observations all going the one way. To provide some examples of the emotive language employed in the course of the proceedings, his Honour said: "To manipulate these unfortunate victims so as to steal virtually all superannuation moneys of Mr and Mrs Prickard is a very serious example of breach of the relevant section." (ROS 10) "He had no empathy for them" (ROS 10) "One can ask the rhetorical question, how could this man have acted in this way? How could he have deceived person's so as to swindle them out of superannuation they had earned through their working lives. The question is easily answered. He was readily able to do that. He had no empathy clearly for the victims. He treated them contemptuously." (ROS 16) He encouraged her to invest money with him, promising her, his partner, there was no chance the money could be lost. How could he utter those words knowing his earlier history of investing other people's money?" (ROS 17) "A man who had spent six years spinning yarns to people and having the gift of the gab did not want to talk to the police about what he had been doing and was unusually silent." (ROS 33) "He has had absolutely no compassion for the victims." (ROS 33) "His behaviour is the most reprehensible one could imagine having regard to offences of this nature" (ROS 33) "As a man who is able to charm people with the gift of the gab to separate them from their savings there is a paucity of explanation from him." (ROS 34) "I believe he is consumed by himself." (ROS 35) "I observe that if the offender has received the massive disapproval of the community it is appropriate that he should do so. In my experience as a lawyer and as a judge living in our community the members of our community absolutely abhor the fraudulent activities of individuals who target the assets of other innocent citizens and steal those assets." (ROS 36) "The offender may have been considered a first offender at the time of his first offending but that has been swamped by the behaviour that continued on over the next six years." (ROS 42) "Mr McLaren is sorry for no one other than himself. He is sorry for his own predicament. He is not truly sorry for the ruinous results of his outrageous conduct." (ROS 42) "You conducted yourself as though you would not have a judgment day. You were mistaken. That judgment day is today." (ROS 52)
The reference to the applicant not speaking to the police or giving evidence in the proceedings was inapposite, [6] and the ominous quasi-religious flavour of the reference to "judgment day" was unnecessary and inappropriate.
His Honour, as he was entitled to do, relied on his vast experience as a practitioner and judge but did so in similarly emotive language. This passage, to which the Court was taken at the appeal hearing, is reproduced above at [67].
Finally, having imposed what appears to be the highest sentence recorded in New South Wales for offending of this kind, the sentencing Judge delivered what he described as a "pep talk" to the media: "There are a number of people from the media here. My experience is that the media seem to go deaf after the minimum period is announced, and I've often seen articles written which only contain the minimum period. The fact is, a lot of people do not get granted their parole at the end of the non-parole period. And many people aren't released until they have served all of their sentence. I've imposed an effective sentence of 16 years imprisonment with 12 years non-parole. I was rather hoping, if there be any headlines, they not say 12 years imprisonment because it's important that it is a 16 year sentence. The offender is doing well in the prison system in trying to be productive, but it will be the parole authority's decision in ten years time. So that ends my pep talk for the media." [7]
With due deference to an experienced Judge, this was no part of the judicial function.
R v Moore (NSWCCA 12 April 1994, unreported) was a case of serious sexual offending against young girls. The sentencing Judge used strong language to condemn the offender and to emphasise the seriousness of the offending and the need to protect the community. This Court allowed an appeal against sentence. Blanch J said: "Although it is clear the courts must protect young girls between the ages of 10 and 14, as this victim was, from the depredations of persons such as the applicant, the relevant question is what term of imprisonment is the appropriate one."
That passage was a gentle reminder by the former Chief Judge of the District Court of the need for sentencing Judges to maintain an unemotional approach to the sentencing exercise, even in the most serious of cases.
The applicant submitted that the result in the present case was that the judgment on sentence was unbalanced and focussed almost exclusively on the objective seriousness of the offences so that the personal circumstances of the applicant were essentially disregarded. I accept that submission and would uphold ground 1.
The applicant's employment record, his complete lack of criminal offending before the age of 40, his long estrangement from his father, the ill-health of a close relative, his good behaviour in custody, his work in surf life saving, to detail just a few of the personal circumstances adduced in evidence: all of these things were entitled to be taken into account and receive some weight in the complex sentencing process. If they received any consideration, taking into account the 25% discount for the early plea, it is difficult to imagine how a starting point exceeding two decades was in contemplation.

[24]

That the aggregate sentence imposed upon the applicant was manifestly excessive as to both the total sentence and the non-parole period.

Having decided that ground one must be upheld, it is necessary to exercise the sentencing discretion afresh: Kentwell v The Queen (2014) 252 CLR 601; [2014] HCA 37 at [42]. It is not strictly necessary to determine whether the aggregate sentence and non-parole period was manifestly excessive. However, I would record my conclusion that it is.
In Hili v The Queen (2010) 242 CLR 520; [2010] HCA 45 the Court said at [59]: "As was said in Dinsdale v The Queen, '[m]anifest inadequacy of sentence, like manifest excess, is a conclusion'. And, as the plurality pointed out in Wong, appellate intervention on the ground that a sentence is manifestly excessive or manifestly inadequate 'is not justified simply because the result arrived at below is markedly different from other sentences that have been imposed in other cases'. Rather, as the plurality went on to say in Wong, '[i]ntervention is warranted only where the difference is such that, in all the circumstances, the appellate court concludes that there must have been some misapplication of principle, even though where and how is not apparent from the statement of reasons'..." (Footnotes omitted.)
Comparison with other cases and reference to statistics will rarely, without more, justify a finding that a sentence is "manifestly excessive" or "manifestly inadequate". What must be considered is whether the sentence is "plainly unjust" or "manifestly wrong": Dinsdale v The Queen (2000) 202 CLR 321; [2000] HCA 54 at [22] (Gaudron and Gummow JJ). In Lowndes v The Queen (1999) 195 CLR 665 at 671-672; [1999] HCA 29, the High Court emphasised that: "[A] court of criminal appeal may not substitute its own opinion for that of the sentencing judge merely because the appellate court would have exercised its discretion in a manner different from the manner in which the sentencing judge exercised his or her discretion."
The High Court has also observed that the consistency that is sought between sentences is the consistency in the application of relevant legal principles. In Barbaro v R; Zirilli v R (2014) 253 CLR 58; [2014] HCA 2 at [40]-[41], the Court said: "The setting of bounds to the available range of sentences in a particular case must, however, be distinguished from the proper and ordinary use of sentencing statistics and other material indicating what sentences have been imposed in other (more or less) comparable cases. Consistency of sentencing is important. But the consistency that is sought is consistency in the application of relevant legal principles, not numerical equivalence. As the plurality pointed out in Hili v The Queen, in seeking consistency sentencing judges must have regard to what has been done in other cases. Those other cases may well establish a range of sentences which have been imposed. But that history does not establish that the sentences which have been imposed mark the outer bounds of the permissible discretion. The history stands as a yardstick against which to examine a proposed sentence. What is important is the unifying principles which those sentences both reveal and reflect..." (Footnotes omitted.)

[41]

Re-sentencing

The sentencing Judge assessed each individual fraud offence as falling generally in the "very broad mid-range" of objective seriousness. He said "some are at the top of [that] range, some are at the lower end of that range". That conclusion was open on the evidence and I agree with it. For each of those offences, his Honour indicated a putative individual ("indicative") sentence ranging between 18 months and 6 years and 9 months. The distinguishing feature was the amount of money involved. For example, sequence 43 involved a loss to the victims of $33,270 and his Honour indicated a sentence of 18 months while sequence 48 involved a fraud of $850,000 and his Honour pronounced an indicative sentence of s6 years. Sequence 46 involved a financial advantage of $1 million and the sentencing Judge announced an indicative sentence of 6 years and 9 months.
I would not interfere with the individual indicative sentences nominated by the sentencing Judge. Nor would I interfere with the sentence imposed for the proceeds of crime offence which was 7 years and 6 months and, appropriately, wholly concurrent with the aggregate sentence for the deception offences.
The aggregate sentence failed properly to apply the principle of totality with the result that the sentence can appropriately be described as crushing. [8] In saying that, I appreciate that in settling upon an aggregate sentence the degree of accumulation and concurrence is somewhat academic or notional. [9] Even so, the principle of totality remains critical to the outcome and the ultimate question is whether the aggregate sentence imposed was outside of a permissible discretionary range. [10] I have not lost sight of the seriousness of the offending, the impact on the individual victims, and the repetitive, calculated and sophisticated nature of the offending. I have adopted his Honour's adverse findings as to the applicant's lack of genuine contrition and the guarded assessment of his prospects of rehabilitation. I have been influenced by the ambivalent opinions expressed by the psychologist and psychiatrist. However, I have given the applicant's previous lack of criminal convictions some weight and have taken into account his individual personal circumstances.
I would not interfere with the 25% discount for the plea of guilty which was applied to the indicative sentences. I do not disagree with the sentencing Judge's rejection of the submission that there were special circumstances justifying a reduction of the non-parole period.
In all of the circumstances, I would impose an aggregate sentence of 12 years with a non-parole period of 9 years.

McLaren v R

At a glance

Court

Decision date

Before

Catchwords

Source

Catchwords

Judgment (43 paragraphs)

Parties

Legislation Cited (2)

Cases Cited (32)

Cited By (10)