Alcorn v Regina [2006] NSWCCA 209

In this matter Greg Walsh acted for Brian Dean Alcorn, a solicitor who had formerly been in the employ of Marsdens Solicitors. On 6 September 2005, Mr. Alcorn was sentenced by his Honour Judge Black for six offences to which he pleaded guilty. Two of the offences were under s300(2) of the Crimes Act of knowingly use a false instrument and four offences under s249(1)(b) of the Crimes Act of corruptly receiving a benefit as an agent.

The offences under s300(2) of the Crimes Act involved Mr Alcorn using a false instrument, being a statutory declaration, purportedly signed by certain persons knowing it to be flashed with intent to induce an officer of the Office of State Revenue to accept the instrument as genuine and thereby obtain monies.

Each of the offences under s249B(1)(b) of the Crimes Act occurred in circumstances whereby Mr Alcorn, as the agent of Marsdens Law Group, of which he was a partner, had corruptly received from a man named Stumer, a signed but otherwise blank cheque on the understanding that the applicant could complete the cheque in his favour for a certain sum. There was tendered before the sentencing Judge, an agreed statement of facts, which to a large extent related to a fraudulent scheme of which Mr Alcorn was not a party. The sentencing Judge in effect made findings that Mr Alcorn was that of a principal in the fraudulent scheme.

It was argued in the Court of Criminal Appeal that the learned sentencing Judge had fallen into error in categorising the appellant’s objective criminality as a principal in the fraud involving the co-offenders. The Court unanimously agreed that the sentencing judge did err in the way in which he assessed the objective criminality of the applicant.

At paragraph [57] James J found that the learned sentencing judge’s comments about the objective criminality of the applicant were not supported and were otherwise inconsistent with the agreed facts. Significantly, the applicant only became aware on 7 April 2002 as to the receipt of the secret commissions. The presentation of false declarations to the Office of State Revenue could not have been “part and parcel of lending of a false colour to transactions to enable money to be extradited from investors.” Those statutory declarations were presented to the Office of State Revenue on 17 June 2002, after the applicant had come to a realisation that he had been duped.

James J further considered the approach of the learned sentencing judge to the principles enunciated by the High Court in Pearce v The Queen (1998) 194 CLR 610. At paragraph [60] his Honour found that the learned sentencing Judge had seriously contravened the sentencing principles stated by the High Court in Pearce. The Court referred to the judgment of Simpson J in R v Hammoud (2000) 118 A Crim R 66 at 67-68.

An impermissible approach to sentences for multiple offences was “to select a sentence appropriate to the overall criminality and impose that sentence in respect of all or most of the charges.” Such a sentence cannot be an appropriate sentence for any of the individual offences. This was precisely the approach adopted by the sentencing Judge. Further section 44 of the Crimes (Sentencing Procedure) Act had no particular relevance to the sentencing for multiple offences.

The Court made orders granting leave to appeal against sentences and allowed the appeal against sentence. The sentences of Judge Black of 6 September 2005 were quashed and the applicant was re-sentenced in respect of the various offences. The longest of those sentences was that of imprisonment expiring on 6 September 2006.