NSW Police v Scott John Seward

OBJECTIVE SERIOUSNESS

1. In assessing the objective seriousness I must have regard to the maximum penalty prescribed by the legislature, the amount of money involved, the length of time over which the offence was committed, the offender's motive, the degree of planning, and the fact that this matter involved a breach of trust. Plainly, the amount of money involved is substantial, being $221,106.50. In this regard I note that it was indicated to me during the submissions that the loss was one occasioned to the Parramatta Leagues Club, it being the entity which funded the operation of the Parramatta Eels. Of real importance is the fact that had the Parramatta Eels honoured the agreements they had reached with players and managers for payments outside the salary cap, then those payments would have been made by the Parramatta Leagues Club in any event. As I understand it, those agreements were enforceable in the traditional way notwithstanding that they involved a breach of the NRL rules. As was explained to me by the prosecutor, those agreements could not be honoured because to do so would have exposed the Parramatta Eels as salary cap cheats. No doubt such exposure would have resulted in serious sanction by the NRL. I note that in due course the cheating was uncovered and sanctions were put in place including the loss of premiership points and the removal of the Board of Directors.
2. The offending occurred over a 7 month period between November 2014 and June of 2015. The offender's motive was not one of personal gain, other than so far as it impacted upon his continuing employment, but rather, to fix up what was a diabolical mess that he had inherited from others. Plainly, there was a degree of planning involved in the offending and, as the offender himself acknowledges, there was a significant breach of trust. Given the fact that the offender received no actual financial benefit, the fact that he had no involvement in the initial salary cap breaches which created the environment giving rise to his criminal behaviour, and the fact he was personally and professionally ill equipped for the role he was undertaking, I have concluded that his offending can be assessed at a point at or towards the lower end of objective seriousness for offences of this type.
3. This finding is despite the quantum involved and the period of the offending. In coming to this conclusion I have had regard to the seriousness with which offences under this section are generally regarded. When senior employees such as the offender commit offences of this type, custodial sentences often result. This however is an unusual and unique case that can be readily distinguished from others brought before the court. The most important distinguishing feature is that the Board members, or at least some of them, being the member elected representatives of the victim organisations, connived in the commission of the offence. Those Board members had, prior to the offender's engagement as CEO, created the circumstance that they then pressured the offender to resolve, and in his seeking to do so, the offence before the court was committed. Their willingness to allow the commission of the offence, places these victims in a vastly different category to the victims of almost all other offences of this type.

THE OFFENDER'S SUBJECTIVE CASE

1. The offender is aged 41 years. He is married with 2 children, aged 7 and 10. His wife suffers from a debilitating illness, although she is apparently symptom free at this time. Prior to coming to work in Sydney for the Parramatta Eels, the offender had worked in sporting administration with the Western Bulldogs, an AFL team based in Melbourne. Upon his resignation he returned to Melbourne and was unemployed for about 5 months. He then obtained employment as the General Manager of the Melbourne Cricket Club - Kew Sports Club. He remained in that employment until he was charged with the matters before the court, following which his employment was terminated. He is currently employed doing casual work in a supermarket. He continues to reside in Victoria. The material reveals that those who know him well observed deterioration in his mental health following his taking up the position of CEO with the Parramatta Eels. Subsequent to his resignation he has been treated for depression. He continues under the care of a psychologist who describes him as someone who is unlikely to reoffend. He requires ongoing counselling and psychotherapy to rebuild his life personally, socially and professionally. His prognosis is described by his treating psychologist as "good in light of his intelligent and reasoned approach to recovery and the support of significant others".

ASSISTANCE TO AUTHORITIES

1. Looming large in this matter is the issue of the discount on penalty that ought to be afforded the offender as a consequence of the assistance he has provided to authorities. Plainly that assistance has been substantial. It has long been the case that a sentencing court is able to extend leniency to an offender who has provided assistance to authorities. Sometimes that leniency will be substantial, especially if it is motivated by genuine remorse and contrition: see R v Cartwright (1989) 17 NSWLR 243. I accept that it is in this case. In extending leniency for assistance courts must ensure that the ultimate outcome is not disproportionate to the actual offending. As in any sentencing task, the court must strive to impose a penalty that is, in the final analysis, a fair and just one. The discount for assistance can result in the imposition of a less serious sentencing option and is not limited to the imposition of a numerically lesser penalty. Relevantly in this case, any discount for assistance must also have regard to the voluntary disclosure by the offender of his guilt in circumstances where the facts reveal that had that disclosure not been made, the offences before the court would not have come to light: see R v Ellis (1986) NSWLR 603; Panetta v R [2016] NSWCCA 85. There is an obvious public interest in such a course being taken by an offender (see AB v The Queen (1990) 198 CLR 111) and courts should reward an offender in such circumstances by meaningful reductions in penalty.
2. Section of 23 of the Crimes (Sentencing Procedure) Act 1999 indicates how a court is to deal with the issue of assistance to authorities. Subsection 23(2) sets out the matters a court must consider in determining whether a lesser penalty is to be imposed. Subsection 23(3) provides that any lesser penalty must not be unreasonably disproportionate, and subsection 23(4) requires a court that imposes a lesser penalty to indicate what penalty would otherwise have been imposed save for the assistance. So far as the factors to be taken into account pursuant to subsection 23(2) are concerned, I note the significance and usefulness of the offender's assistance is high; that the prosecution accept that the information he has provided is truthful, complete and reliable; that the nature and extent of his assistance is high; that his assistance was offered in a timely manner and that the assistance relates solely to the offence before the court. It is not suggested in any of the material that there has been any promise of future assistance by the offender. Whilst the written submissions of the offender's solicitors make reference in paragraph 48 to promised assistance, those submissions provide a mere recitation of the relevant law and do not suggest that there will be assistance to authorities by the offender in the future.
3. As will be plain, many of the section 23 factors that must be considered operate favourably for the offender and in my assessment he must be given very significant leniency in the disposition of this matter. It is of course, necessary for me to indicate the penalty that would have been imposed but for the offender's assistance and I will shortly return to this aspect.

THE MEDIA

1. Mr Sutton submitted a large number of excerpts of media articles touching upon the offender and his conduct all of which have been considered. His submissions suggest that the media has hypothesized that the offending was for personal benefit in circumstances where this was not in fact the case. Sergeant Sala submitted that the media coverage did not amount to extra curial punishment. My consideration of the material submitted by Mr Sutton does not allow me to draw the conclusion he urges and I am in agreement with the submission of Sergeant Sala. While I have no doubt that the publicity and media coverage has caused the offender significant humiliation and embarrassment I am not of the view that it amounts to extra curial punishment such as would warrant some consideration being given in respect of the sentence to be imposed. In R v Wran [2016] NSWSC 1015, Harrison J reflected on what he described as "a sustained and unpleasant campaign by some of the daily newspapers circulating in Sydney" towards the offender in that case. He referred to "distasteful and wholly misleading headlines" that made allegations about "her criminality, sexual conduct and reputation that had no basis in fact". He accepted in that case, that the treatment of the offender by the media, and its disproportionate intensity, went beyond the traditional case of adverse publicity such as to warrant a lesser punishment being imposed. I am not satisfied from what has been provided that the media treatment in this case goes beyond traditional adverse publicity and I do not propose to mitigate the sentence to be imposed on this account.

THE STATUTORY CONSIDERATIONS

1. The Crimes (Sentencing Procedure) Act 1999 mandates that the court is to take into account the aggravating and mitigating factors set out in section 21A of the Act, along with any other objective factor that affects the relevant seriousness of the offending. So far as the aggravating factors in section 21A(2) are concerned, I note that the offender abused his position of trust, that the offending involved a series of criminal acts, and that the offending was planned. The mitigating factors pursuant to section 21A(3) are that the offender does not have any record of previous convictions, was a person of good character, is unlikely to reoffend, has good prospects of rehabilitation, is remorseful and has accepted responsibility for his actions, has acknowledged the loss caused by his actions, has pleaded guilty, and has provided assistance. All of these relevant aggravating and mitigating factors will be taken into account.
2. Section 3A sets out the purposes for which the court may impose a sentence. Those purposes are: 1. to ensure that the offender is adequately punished for the offence, 2. to prevent crime by deterring the offender and others from committing similar offences, 3. to protect the community from the offender, 4. to promote the rehabilitation of the offender, 5. to make the offender accountable for his or her actions, 6. to denounce the conduct of the offender, 7. to recognise the harm done to the victim of the crime and the community
3. In the unusual circumstances of this case, all of these purposes will be taken into account to the extent that they are relevant. So far as punishment is concerned, the offender's voluntary disclosures have meant a very significant self-imposed punishment. He lost his employment and his future prospects of employment, particularly in the field of sports administration must be regarded as limited. Given the highly unusual and unique circumstances of this case, I am not of the view that general deterrence has a significant role to play. For the reasons earlier articulated this is a fraud case that is far removed from the usual fraud cases that this court encounters. Further, I note that the defendant's mental health does not make him a suitable vehicle to be made an example of as a means of deterring others. I am satisfied that specific deterrence has no role to play given my view that he will not reoffend and in all the circumstances the community does not require protection from the offender. I am also of the view that the sentence to be imposed will promote the offender's rehabilitation. He has already been made accountable for his conduct and the orders I will make will provide sufficient denunciation. So far as the harm to the victim is concerned, I have already remarked on this aspect earlier in these reasons.

THE PARTIES SUBMISSIONS

1. Mr Sutton for the offender submitted that I would deal with the matter by recording a bare conviction pursuant to section 10A of Crimes (Sentencing Procedure) Act after balancing all of the relevant objective and subjective considerations. He particularly stressed the circumstances giving rise to the offending, the voluntary disclosure made by the offender, the fact that there was no personal gain by him, his mental health, the fact that he was a person of good character and his early plea of guilty. Sergeant Sala noted that in cases of this type some form of custodial sentence would normally be appropriate. In broad terms, and noting that each case must be dealt with on its merits, I agree with that submission. She did however fairly acknowledge that in all the circumstances of this case, the section 5 threshold requiring a custodial penalty to be imposed had not been crossed. She accepted that there was no actual benefit that had been obtained by the offender and that as a consequence of his conduct there was a significant detriment to his employment prospects. She conceded the offender had provided significant assistance to police. She placed weight in her submissions on the need for general deterrence. It was argued that the matter was objectively serious due to the offenders' position, the large amount of money involved and the fact that his behaviour would have been hard to identify in the normal course. In making that submission she nevertheless properly conceded that his criminality was lowered as a consequence of the fact that he had himself identified it to authorities. Implicit in the submissions of both the prosecutor and the offender's counsel was that a conviction be recorded.

CONCLUSION

1. It is to be observed that the submissions of the parties whether they involve a request for leniency or otherwise do not bind the court. A court will be guided and assisted by submissions but in the final determination a decision as to whether or not a conviction ought to be recorded is a matter solely for the sentencer. At its core, a sentence must be individual and it must fit the crime. In imposing it a court must acknowledge the importance of its public dimension and the maintenance of public confidence in the justice system. Somewhat unusually I have determined in this matter to impose a lesser penalty than that suggested by the offender's solicitor. In doing so, I have borne firmly in mind the remarks of Windeyer J in Cobiac v Liddy (1969) 119 CLR 257 at 269 that "a capacity in special circumstances to avoid the rigidity of inexorable law is of the very essence of justice", together with what was said by Spigelman CJ in R v Ingrassia (1997) 41 NSWLR 447 at 449 that "the legal and social consequences of being convicted of an offence often extend beyond the penalty imposed by the court".
2. I have decided that in all the circumstances of this case I ought not proceed to conviction and that instead I should make an order discharging the offender on condition that he enter into a good behaviour bond for a period of 2 years. In determining to take this action I have had particular regard to the following factors as prescribed by section 10(3) of the Crimes (Sentencing Procedure) Act; the offender's character, antecedents, age, mental condition, and the extenuating circumstances in which the offence was committed. I have also borne in mind the fact that the offending is not in its nature trivial. In having regard to other matters that I regard as proper, I have paid particular attention to the defendant's early plea of guilty, his assistance to authorities and the affect that a conviction would have upon his already diminished employment prospects. It is important to remember that while section 10(3) mandates the factors that a court is to have regard to in dealing with an offender pursuant to the section, there is no statutory requirement that all of the factors be present prior to disposition in this way: see Hoffenberg v The District Court of New South Wales [2010] NSWCA 142, per Basten JA at [8]. Accordingly, the fact that an offence is not trivial does not give rise to some type of legislative barrier to it being disposed of in the way that I propose. I have also taken into account the offence on the Form 1 in reaching my conclusion and can indicate that had this offence not been taken into account then the term of the section 10 bond would have been for a lesser period.
3. Needless to say, the more serious the offending the less scope there is for a court to deal with an offender without recording a conviction. In this case however, my view as to the compelling nature of the extenuating circumstances concerning the offending conduct leaves no room for the recording of a conviction. As was made clear in R v Mauger [2012] NSWCCA 51 by Harrison J, with whom Beazley JA (as the President then was) and McCallum J agreed, the fact that a conviction is not recorded should not "dilute or downgrade the significance of the imposition of a s10 bond". There are onerous consequences if an offender fails to comply with a section 10 bond and it should not be assumed that because this court has decided not to record a conviction that the sentence is automatically lenient. R v Mauger (supra) also makes clear that the prospect of a conviction having a detrimental consequence upon employment is something that I am entitled to take into account and I have done so. R v Mauger (supra) is further authority for the proposition that the imposition of a bond even without conviction can meet the need for denunciation and general deterrence in an appropriate case. In my assessment this is such a case, particularly when one has regard to the factual matrix of the offending and the assistance that the offender provided to authorities. I have concluded that such a disposition will not affront community standards, particularly when the facts of the matter are made clear, or that it would be otherwise inappropriate. I propose to order the dismissal of the charge be conditional upon the offender entering into a bond to be of good behaviour. Such a bond will satisfy the need for denunciation and general deterrence and as I have earlier found, specific deterrence has no role to play. To comply with the provisions of section 23(4)(c) of the Crimes (Sentencing Procedure) Act, I state that without the significant assistance that has been provided by the offender a more serious penalty would have been imposed being a conviction and the imposition of a section 9 bond.

ORDERS

1. Re Sequence 1 - I find the offence proved but deem it inexpedient to inflict any punishment. The charge will be dismissed pursuant to the provisions of section 10(1)(b) of the Crimes (Sentencing Procedure) Act conditional on the defendant entering into a bond to be of good behaviour for a period of 2 years.
2. Re Sequence 2 - Taken into account on a Form 1. Deputy Chief Magistrate Christopher O'Brien Downing Centre Local Court 13 July 2017

NOTE: A Crown inadequacy appeal was dismissed in the District Court on 3 November 2017. DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 03 November 2017