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[2021] NSWCCA 238
Court of Criminal Appeal (NSW)
2021-08-13
Payne JA, Wilson J, Fagan J
Original judgment source is linked above.
HEADNOTE [This headnote is not to be read as part of the judgment] On 29 January 2020 in the Lismore Local Court, the applicant, Ms Hughes, pleaded guilty to one "rolled up" count of obtaining a financial advantage by deception contrary to s 192E(1)(b) of the Crimes Act 1900 (NSW) and was committed for sentence to the District Court. On 17 June 2020, McLennan SC DCJ sentenced the applicant to 2 years and 6 months' imprisonment commencing on 15 June 2020 with a non-parole period of 18 months. The relevant "deception" specified in the indictment was the "fraudulent transfer of money". The applicant was employed by the Moon Street Medical Centre service trust as the practice manager for the Moon Street Medical Centre. In that role she was responsible for all financial payments and transactions conducted by the business. She operated on her own an account held by the service trust with the Commonwealth Bank and was required to keep accurate accounting records using a software accounting program known as MYOB. On 329 occasions between 19 January 2012 and 15 October 2018, the applicant, without authority, transferred funds from the service trust's bank account held with the Commonwealth Bank to one of two of her personal accounts. The total amount obtained was $179,153.60. The applicant sought leave to appeal under s 5(1)(b) of the Criminal Appeal Act 1912 (NSW) against her conviction. Her primary contention was that the conviction was wrong in law because the elements of s 192E were not proven by the statement of facts tendered at her sentencing hearing. The applicant advanced three primary arguments as to why the element of deception was not established on the facts:
Judgment
Factual background
Charges laid against the applicant
Relevant legislation
Consideration
Issues one and two: causation and "keeping" the financial advantage
Conclusion regarding issues one and two
Issue three: whether the centre was actually deceived by the MYOB records
Conclusion and orders
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Hughes
R
(1996) 184 CLR 501
(1995) 184 CLR 132
(2014) 252 CLR 149
(1986) 160 CLR 251