R v Burke [2002] NSWCCA 353

R v Burke [2002] NSWCCA 353

No ground of sentencing error was established and, on the material before the sentencing judge, the overall head sentence of ten years and effective non-parole period of seven years and six months were not manifestly excessive for repeated breaches of trust involving over $5 million across six years, many elderly or retired victims, prior dishonesty convictions, and no established remorse. The fresh evidence of third party reimbursement or possible reimbursement did not justify a lesser sentence because third party payments did not eliminate the loss, only potentially alleviated some personal hardship, and substantial hardship remained.

Jurisdiction
Australia
Judgment Date
29 August 2002
Procedural Posture
Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court After Pleas of Guilty
Outcome
Application for leave to appeal granted; appeal dismissed.
Legal Topics
['fraudulent Misappropriation' 'use of False Instruments' 'plea of Guilty Discount' 'co Operation With Investigating Authorities' 'third Party Reimbursement and Insurance' 'fresh Evidence on Sentencing Appeal' 'manifest Excess' 'totality Principle' 'special Circumstances']
['criminal Law' 'sentencing' 'criminal Appeals'] ['fraudulent Misappropriation' 'use of False Instruments' 'plea of Guilty Discount' 'co Operation With Investigating Authorities' 'third Party Reimbursement and Insurance' 'fresh Evidence on Sentencing Appeal' 'manifest Excess' 'totality Principle' 'special Circumstances']

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Procedural Posture

Criminal Appeal Against Severity of Sentence / Application for Leave to Appeal Against Sentences Imposed in the District Court After Pleas of Guilty

Legal Issues

  1. 1 ["Whether the sentencing judge gave insufficient weight to the applicant's pleas of guilty." 'Whether additional allowance should have been made for co-operation with ASIC investigators.' "Whether the applicant's subjective case was inadequately put because of incompetence of counsel." 'Whether the sentencing judge erred in treating loss, absence of indemnity insurance or absence of a fidelity fund as relevant to sentence.' 'Whether excessive weight was placed on deterrence, prior convictions, ostentatious living, or absence of remorse.' "Whether the Crown's presentation of 50 counts rather than use of s 32 of the Crimes (Sentencing Procedure) Act 1999 unfairly prejudiced the applicant or prevented proper application of totality." 'Whether the head sentence or non-parole period was manifestly excessive.' 'Whether fresh evidence of payments or possible payments by Financial Wisdom Limited and Security Financial Planning Pty Limited warranted appellate intervention.']

Ratio Decidendi

No ground of sentencing error was established and, on the material before the sentencing judge, the overall head sentence of ten years and effective non-parole period of seven years and six months were not manifestly excessive for repeated breaches of trust involving over $5 million across six years, many elderly or retired victims, prior dishonesty convictions, and no established remorse. The fresh evidence of third party reimbursement or possible reimbursement did not justify a lesser sentence because third party payments did not eliminate the loss, only potentially alleviated some personal hardship, and substantial hardship remained.

Court Disposition

Application for leave to appeal granted; appeal dismissed.

Orders

  • ['Application for leave to appeal granted.' 'Appeal dismissed.']