Police v Barbara Thorley

Local Court of NSW|2011-04-01

Remarks on Sentence 1This matter has taken a very considerable time to be concluded, however, the reason for that delay was essentially the acute ill-health of the offender's late husband who was a co-offender, and who died on 7 February 2011. The delay in the matter being finalised is solely attributable to the offender requesting adjournments because of the medical condition of her late husband. She is not entitled to any consideration on sentence because of that delay. 2Originally the offender was charged with 15 counts of either Obtain Money by Deception contrary to s 178BA or Larceny contrary to s 117 of the Crimes Act 1900. However, following representations, pleas of guilty were sought and subsequently entered on 19 January 2010 to the following 8 charges: (1)(Sequence 3) That (she) between 1 May 2008 and 10 July 2008 at Ballina in the State of New South Wales did dishonestly obtain for Raoul Thorley and herself money, namely $40,000 by deception, in that they would establish a bona fide self managed superannuation fund for Helen Hummelstad and Joy Dunlop; (2)(Sequence 5) That (she) between 1 May 2008 and 5 August 2008 at Ballina in the State of New South Wales, did dishonestly obtain for Raoul Thorley and herself money, namely $10,000 by deception, namely representations to borrow money from Helen Hummelstad with intention to repay such funds upon receipt of an income tax return; (3)(Sequence 6) That (she) between 1 May 2008 and 25 August 2008 at Ballina in the State of New South Wales did dishonestly obtain for Raoul Thorley and herself money, namely $2370 by deception, in that they would establish a bona fide self managed superannuation fund for Helen Hummelstad and Joy Dunlop; (4)(Sequence 8) That (she) between 1 May 2008 at 26 August 2008 at Ballina in the State of New South Wales did dishonestly obtain for Raoul Thorley and herself money, namely $10,000 by deception, in that they would establish a bona fide self managed superannuation fund for Helen Hummelstad and Joy Dunlop; (5)(Sequence 12) That (she) between 27 august 2008 and 15 September 2008 at Casino in the State of New South Wales did steal certain property to the value of $32,881 in cash being the proceeds of the income tax return of Michael Riddell; (6)(Sequence 13) That (she) between 30 July 2008 and 12 September 2008 at Ballina in the State of New South Wales did dishonestly obtain for Raoul Thorley and herself money, namely $6,000 by deception, namely representations to make payment to the Australia Taxation Office of outstanding liabilities on account of Michael Riddell; (7)(Sequence 14) That (she) between 30 July 2008 and 15 September 2008 at Ballina in the State of New South Wales did dishonestly obtain for Raoul Thorley and herself money, namely, $3500 by deception, namely representations to make payment to the Australian Taxation Office of outstanding liabilities on account of Michael Riddell; and (8)(Sequence 15) That (she) between 30 July 2008 and 22 September 2008 at Ballina in the State of New South Wales did dishonestly obtain for Raoul Thorley and herself money, namely $6,000 by deception, namely representations to establish a bona fide self managed superannuation fund for Melinda Brown and Michael Riddell. 3I note that on 24 August 2009 a brief of evidence was ordered. However, the matter has never been listed for hearing nor have witnesses been assembled. In the circumstances, I am prepared to err on the side of generosity and allow 25% for the utilitarian value of the pleas of guilty. On this issue of the discount for the plea of guilty it was held in R v Falzon & Pullen (unreported, 20/02/1992, NSWCCA per Carruthers, Smart and Loveday JJ) that a plea of guilty in a matter of "white-collar" crime "attracts a considerable measure of leniency". That decision was decided before the "Guideline Judgment" on pleas of guilty: R v Thomson; R v Houlton (2000) 49 NSWLR 383.

Facts 4The facts are set out comprehensively in the Statement of Facts that was tendered without apparent objection on the date that the pleas of guilty were entered. I will recite those facts: The accused Raoul Thorley and Co-accused Barbara Thorley are husband and wife, whom previously resided at an address in Casino. Barbara Thorley was the operator of a business MCS Solutions, a business name, providing book keeping and associated services. Neither Raoul Thorley or Barbara Thorley hold any formal tertiary qualifications in relation to accounting or providing financial investment advice. Neither person are registered Tax Agents or members of any professional accounting bodies. Two principal bank accounts are operated by the two accused:

ANZ Basic Access Account in the name of Barbara Thorley, account number [xxxxxxxxx], and
ANZ Business account (MCS Solutions) in the name of Barbara Thorley: account number [xxxxxxxxx]. Offences relating to Helen Hummelstad and Joy Dunlop The victims Joy Dunlop and Helen Hummelstad (partners) operated various businesses in the Ballina area. About November 2007 the victim Dunlop first became acquainted with the two accused through a friend. At that time Dunlop requested the two accused to conduct some taxation work for her, by way of preparing and lodging her income tax return. This was completed by the two accused and an income tax refund was subsequently received. At that time the accused Raoul Thorley stated to the victim Dunlop that he was a qualified accountant having previously worked at the Australian Taxation Office (ATO). About May 2008 the two accused attended the residence of the victims Dunlop and Hummelstad in Ballina at the invitation of Dunlop. The purpose of the meeting was to finalise the income tax return of Dunlop. At that time both victims spoke with the two accused in relation to combining all their business interests under the one corporate entity, being Golden Rainbow Developments Pty Ltd a company held by the victim Hummelstad. They also required financial advice in relation to establishing a self managed superannuation fund. During that meeting the accused Raoul Thorley informed the victims that he was a qualified accountant, and had specialised tax knowledge from past employment with the Australian Taxation Office. The accused Barbara Thorley stated that he business was an accredited accountancy business. No formal agreements were entered into at that meeting. On 13 June 2008 the two accused again attended the address of the victims Dunlop and Hummelstad. During that meeting the accused Raoul Thorley informed the victims of an investment opportunity involving an earthworks company that had a 10 year contract with the Mackay Regional Council. The company was purportedly managed by an individual by the name of Anthony Gibson. The victims were explained (sic) that by investing through the superannuation fund, that all profits would be tax free. The accused Raoul Thorley stated that the initial investment would cost $40,000. Both victims were concerned about investing without the trustee company being established, to which the accused Barbara Thorley informed them that they (victims) had nothing to lose as the funds would be guaranteed by their (accuseds') family trust. At the conclusion of the meeting the victims agreed in principal to invest and proceeded to organise the requested funds. Offence sequence 3 - Obtain Property by Deception - $40,000 At the same meeting the victims and accused again discussed the investment of $40,000 into the earthworks company. The accused Raoul Thorley informed the victims that the company desperately needed funds to purchase additional equipment to service the Council contract. The victims remained concerned that they had not received the documentation in relation to the self managed superannuation fund to which the accused Raoul Thorley assured them that the funds would be secure in their (accuseds') trust account until such time as all documentation was received. About 6 July 2008 the two accused again attended the residence of the two victims, at which time the victim Hummelstad gave the accused Barbara Thorley a cheque of $15,000 and a further cheque for $25,000 being the $40,000 self managed superannuation fund investment. Both cheques were deposited to the ANZ account of MCS Solutions on 10 July 2008. They earthworks company and the contract with the Council were completely fictitious. Offence sequence 5 - Obtain Property by Deception - $10,000 About late July 2008 the accused Raoul Thorley contacted the victims by telephone. At that time it was stated that the tax return of the accused had been delayed by the ATO and he requested a loan from the victims to assist with some outstanding debts associated with the renovations to their home. The accused requested a loan of $10,000 being $5,000 in cash and $5,000 in cheque form. On 4 August the two accused attended the residence of the victims and collected from them $5,000 in cash and a cheque for $5,000. On 5 August 2008 the cheque for $5,000 was deposited to the ANZ account of MCS Solutions. The $5,000 cash was not deposited to either of the accounts identified. It is alleged that the tax refund delay was a fabrication, and the accused had no intention of paying the loan, and the scenario in relation to the tax refund was stated in order to ensure that the loan was secured from the victims. On 19 August 2008 the two victims made arrangement to attend the Bank of Queensland in order to open accounts for the new Trustee Company for the self managed superannuation fund that was said to have been established by the two accused. The victims informed Raoul Thorley of the meeting, who stated that he would also attend in his capacity as their accountant. During this meeting with the bank, the accused Raoul Thorley handed over a document purporting to be a Trust Deed for the Golden Rainbow Development Superannuation Fund. The relevant identification document was copied and the bank officer commenced establishing the relevant accounts. Offence Sequence 6 Obtain Property by Deception - $803.75 On 23 August 2008 the two accused again attended the address of the victims. At that time the accused Barbara Thorley handed the victims tow invoices, being for legal fees and services associated with the establishment of the superannuation fund. On that date the victim Dunlop handed the accused Barbara Thorley a cheque of $803.75. The services that were paid for, being the establishment of the superannuation fund were never conducted. The funds were deposited to the ANZ account of MCS Solutions on 26 August 2008. Offence Sequence 8 - Obtain Property by Deception - $10,000 On that same date the two accused entered into further discussion in relation to the earthworks company contracted to the Council. The accused Raoul Thorley stated that the company needed to buy further equipment in order to service the Council contract and requested that the victims invest another $10,000. The victim Hummelstad handed the accused Barbara Thorley a further cheque for $10,000 to invest in the earthworks company. The stated venture was a fabrication and did not exist. The cheque was deposited to the ANZ account of MCS Solutions on 26 August 2008. On 29 August 2008 the victims received notification from the Bank of Queensland that all accounts that had been opened on 19 August 2008 had been suspended due to discrepancies in documentation provided. The victims then checked their registration details with ASIC and discovered that no companies had been registered or business names changed as requested and paid for. The accused Raoul Thorley was contacted by telephone and stated that he had made a mistake in the registration papers and he would "get it fixed up". On 1 September 2008 the victims contacted the accused Barbara Thorley by telephone inquiring as to the superannuation fund investment venture. At that time the accused Barbara Thorley informed the victims that the company contracts were being finalised in Mackay and would be provided shortly. On 4 September 2008 the victims received, via email from the accused copies of partnership agreements, and copies of documents that purported to be contracts between the Council and East Coast Earthworks, being the company under which the supposed superannuation funds were to be invested. The documents were completely false, created by the accused, and no such earthworks company or contract ever existed. Offences relating to victims Melinda Brown and Michael Riddell On 30 July 2008 the victims Michael Riddell and Melinda Brown first met the two accused Raoul Thorley and Barbara Thorley at their home in Ballina. The victims had been been recommended the two accused, by friends being Helen Hummelstad and Joy Dunlop. The victims were seeking advice in relation to taxation issues and winding up some past business ventures. At the initial meeting the victims were told by the two accused and Raoul Thorley was a qualified accountant and that MCS Solution was a registered accounting and taxation business. At that time the victims had significant tax credits due to previous Pay as you Go tax instalments that were paid to the ATO for personal tax but they were also aware that two past business ventures carried some significant tax debts with the ATO in relation to GST and non-lodgement fines. During the conversation the accused Raoul Thorley raised the issue of establishing a self managed superannuation fund, and suggested registering a company to act as trustee for the fund, which the victims agreed to do. Offence sequence 12 - Larceny $32,881 On 27 August 2008 the victims Riddell and Brown met the accused at their home in Casino. At that time the victim Riddell handed the accused Raoul Thorley documentation in order for his income tax return to be completed. The victim Riddell expected to receive about $32,000 in a tax refund from the ATO. Upon reviewing the documentation the accused Raoul Thorley stated that he would complete the tax return, and the refund would be received from the ATO by direct credit to Riddell's bank account. The accused lodged an online Etax return on behalf of the victim, indicating that the tax refund to be direct transferred to the ANZ account of MCS Solutions, as opposed to the account details of the victim. Bank and ATO records indicate that on 15 September 2008 a direct deposit was made by the ATO to the ANZ account of MCS Solutions in the sum of $32,881. The two accused had no entitlement to those funds. Offence Sequence 13 - Obtain Property by Deception - $6,000 On 11 September 2008 the accused Raoul Thorley contacted the victims by telephone. At the time he stated he had contacted the ATO and had been informed that one of the previous business entities of the victims had significant GST liabilities outstanding with the ATO of about $27,000. The victims were aware of the liability. The accused Raoul Thorley stated that he had negotiated a deal with the ATO that if they paid $6,000 immediately the ATO would waive the balance of the liability. He stated that he had already paid the sum to the ATO from his own account, and as such required the funds to be reimbursed to him. On 12 September 2008 the victims transferred by direct transfer the sum of $6,000 to the account of MCS Solutions. No liabilities were ever paid by the two accused to the ATO and it is alleged that no negotiations ever took place between the accused and officers of the ATO. Offence sequence 14 - Obtain Property by Deception - $3,500 Later that same day the accused Raoul Thorley called the victims again by telephone. Again he stated that he had spoken with ATO officers about non-lodgement fines in relation to another business entity. He stated that he had also entered into negotiations in respect of those funds and the ATO had agreed to accept $3,500 in full payment if that payment was made immediately. He stated that he had again paid the funds direct to the ATO, and required those funds to be reimbursed. On 15 September 2008 the victim transferred by direct transfer, the sum of $3,500 to the ANZ Account of MCS Solutions. No liabilities were ever paid by the two accused to the ATO and it is alleged that no negotiations ever took place between the accused and officers of the ATO. On the same date the accused raised with the victims a proposed investment scheme for the previously discussed self managed superannuation fund. The scheme was to involve investing in an earthworks company that was contracted to the Mackay Regional Council. The accused Raoul Thorley stated that the company urgently needed capital to purchase additional equipment to keep up with the Council work and was looking for investors. The victims stated that they would consider the scheme. Offence Sequence 15 - Obtain Property by Deception $6,500 About 19 September 2008 the accused Barbara Thorley emailed a document to the victims being a budget forecast for the earthworks venture showing the forecast income and expenditure. Also received from the accused Raoul Thorley by email was a copy of an agreement purportedly between East Coast Earthworks and the Mackay Regional Council for the completion of works. The accused Raoul Thorley stated that the investment outlay would be $12,000. The victims told the accused that they only had about $6,555 cash. The accused replied that if they invested the $6,500 he would lend them the remainder so they did not miss the investment opportunity. On 22 September 2008 the victims transferred by direct transfer the sum of $6,500 to the ANZ account of MCS Solutions. All documentation received by the victims was false; the earthworks company and investment scheme did no exist. On 23 September 2008 the victims spoke with the accused Raoul Thorley by telephone in relation to the outstanding income tax return. At that time the accused stated that he had checked with the ATO and the return was still 3 weeks away. The victims sought advice from a registered accountant who conducted checks with the ATO, revealing that the tax return had been paid to the account of the two accused. They were further informed that ATO records indicated that no GST liability or ATO fines had been paid. The victims Brown and Riddell spoke with victims Hummelstad and Dunlop by telephone, and as a result of that conversation a meeting was arranged with the two accused the following day under the pretence of Brown and Riddell paying the remainder of the investment contributions. On 25 September 2008 the two accused attended the residence of the Brown and Riddell in Ballina. At that time they were confronted by all four victims. The two accused made admissions in respect of the false investment scheme and theft of the income tax return of Riddell. At that time the accused Barbara Thorley accessed the ANZ account of MCS Solutions and transferred the sum of $15,500 from that account to the account of the victims Brown and Riddell, as part repayment of the funds obtained from them. Brown then transferred $7,500 of that money to the victims Hummelstad and Dunlop. Both accused gave an undertaking to repay the remaining balance of the funds. No further funds have since been forthcoming from the two accused. In early April 2009 the two accused departed from their home in Casino and relocated to Moe in Victoria. An analysis of the accounts of the accused reveals that funds obtained from the four victims have been withdrawn from the account of MCS Solutions predominantly through significant ATM withdrawals, many being within licensed premises. A further significant quantity of funds appears to have been expended on building and hardware supplies. At the time of the offences the two accused were in receipt of various Centrelink career and pension benefits. The total funds taken by the two accused from the victims Hummelstad and Dunlop was $60,803.75 of which $7,500 has been reimbursed. The total funds that were taken by the two accused from the victims Brown and Riddell was $48,881 of which $8,000 has been reimbursed. Compensation orders are requested in relation to the outstanding funds.

Assessment of the Criminality 5The facts indicate that the criminality involved in these matters was very much a joint criminal enterprise between the offender and her late husband. Any suggestion that the offender was less culpable than her late husband needs to be firmly rejected. The moneys obtained by the various frauds were paid into the accounts held in the name of this offender. She was present at the meetings. She was clearly aware of the various false representations. 6The matter involves various dishonest and fraudulent acts that resulted in a total of $109,684.75 being paid to the offender and her late husband. The conduct was clearly well planned and relatively sophisticated. The conduct occurred over a relatively short period of time. I am of the opinion that the matter falls slightly above the mid range of seriousness of these matters that come before the criminal courts. This assessment in made in respect of all matters that become before all courts, not merely those matters that come before the Local Court. 7However, in matters such as the present, it is appropriate to repeat the observation of Simpson J in R v Brown (unreported, 01/08/1994, NSWCCA) in that: "...white collar crime itself is so various in its manifestations and nature that it is scarcely susceptible of precise definition or of defined sentencing principles".

Maximum Penalty 8The maximum penalty for all of the offences on which I have to pass sentence is 5 years imprisonment if dealt with on Indictment. The principles enunciated by the Court of Criminal Appeal in R v Doan (2000) 50 NSWLR 115, and affirmed by a five judge bench in Attorney General's Application Under s 37 of the Crimes (Sentencing Procedure) Act 1999 No 2 of 2002 (Guideline Judgment in Assault Police Matters) [2002] NSWCCA 515 apply. In Doan Grove J (Spigelman CJ, Kirby J agreeing) said at [35]: " The result of true construction of the statutory provisions in New South Wales is that, what has been prescribed is a jurisdictional maximum and not a maximum penalty for any offence triable within that jurisdiction. In other words, where the maximum applicable penalty is lower because the charge has been prosecuted within the limited summary jurisdiction of the Local Court, that court should impose a penalty reflecting the objective seriousness of the offence, tempered if appropriate by subjective circumstances, taking care only not to exceed the maximum jurisdictional limit. The implication of the argument of the appellant that, in lieu of prescribed maximum penalties exceeding two years imprisonment, a maximum of two years imprisonment for all offences triable summarily in the Local Court has been substituted must be rejected. As must also be rejected the corollary that a sentence of two years imprisonment should be reserved for a 'worst case'".

Criminal History 9The offender has no criminal history, and accordingly is entitled to be dealt with as a person of prior good character. However, in Phelan v R ( 1993) 66 A Crim R 446, Hunt CJ at CL (Smart & James JJ agreeing) said at 448: "This Court has said on many occasions that prior good character is of less weight in such a situation of repeated offences over a period of time that it is when the offence committed is an isolated one."

Matters of General Principle 10The issue of general deterrence is a very significant factor to be taken into account in passing sentence in respect of matters involving a breach of trust, as is the case in the matters on which I am passing sentence. The offender and her husband purported and represented to the victims that they were professionals. The victims trusted the offender and her lat husband with substantial sums of money. The decided cases on fraud by employees and those in a position of trust are relevant. 11In R v Pont (2000) 121 A Crim R 302, Greg James J (Beazley JA, Wood CJ at CL agreeing) said at [43]: "But it was conceded, on the authorities in this court, that where there are breaches of trust by employees, particularly involving large or substantial sums, involving systematic dishonesty attended by planning and some sophistication, general deterrence requires at least usually or in the absence of special features, that there be substantial sentences of imprisonment". 12Much earlier, in the decision of Pantano v R (1990) 49 A Crim R 328, Wood J (Carruthers J agreeing) said at 330: "...those involved in serious white collar crime must expect condign sentences. The commercial world expects executives and employees in positions of trust, no matter how young they may be, to conform to exacting standards of honesty. It is impossible to be unmindful of the difficulty of detecting sophisticated crime of the kind here involved, or of the possibility for substantial financial loss by the public. Executives and trusted employees who give way to temptation cannot pass the blame to lax security on the part of management. The element of general deterrence is an important element of sentencing for such offences". 13It is to be immediately observed that the matters of Pont and Pantano involved much greater sums of money than is the case with the matters on which I am passing sentence. Be that as it may, I am on the opinion that the sums of money defrauded and stolen from the victims in the matters presently under consideration can certainly be described as substantial. 14More recently in the decision of R v Mungomery (2004) 151 A Crim R 376, Hulme J (Spigelman CJ, Adams J agreeing) said at [40]-[41]: "40 In this regard authority makes it clear that the amount of money involved in premeditated deception is an important, and the period of time over which offences are committed a relevant, factor in determining the extent of criminality - see Hawkins (1989) 45 A Crim R 430, R v Mears (unreported, NSWCCA, 14 March 1991), referred to by Wood CJ at CL and Sperling J in R v Woodman [2001] NSWCCA 310. 41 The cases in this area also stress the importance of general deterrence. Organisations, be they business or government, cannot operate effectively without placing a good deal of trust in their employees. Opportunities for the abuse of that trust are legion and breaches are often difficult to detect. Commonly, offenders are able to continue their depredations for long periods. Often matters only come to light when the total amounts involved become too large to be overlooked. It seems to me an inevitable inference that there must be many cases where offending is never discovered - a factor also arguing for sentences which are substantial deterrents". 15Returning to the decision in Brown (supra) Simpson J said: "The fourth of the Crown arguments is concerned with principles of sentencing that have evolved in relation to so-called "white collar crime". But white-collar crime itself is so various in its manifestations and nature that it is scarcely susceptible of precise definition or of defined sentencing principles. I do not read the cases cited as laying down any proposition of the inevitability of a full-time prison sentence in any case which could be brought within the description of "white collar crime". 16Hunt CJ at CL in that same decision said: " I do not accept that it is appropriate to lay down any rule that, in all cases of serious white collar crime, a sentence other than a full-time custodial one by itself demonstrates error requiring a Crown appeal to be upheld. There is a wide range in the nature of white collar crimes and necessarily a wide range in the nature of the appropriate sentences to be imposed". 17Although these are clearly matters of general principle by which I am bound, it is nevertheless instructive to consider the facts. The benefit accrued to the offender in Brown was the use of the money. Further, the conduct was committed in a misguided attempt to keep a failing business afloat. The matters presently under consideration appear to be motivated by greed. It is significant that the facts note that a good number of the withdrawals occurred at ATMs at licensed premises. 18A small fraction of the money dishonestly obtained has been repaid. Mr Aitken candidly conceded that there is little likelihood of any further moneys being repaid. For the purpose of proceeding to sentence I am of the opinion that the loss occasions to both sets of victims in this matter is irretrievable. On this issue Hunt CJ at CL said in Phelan at 448: "In many of these cases, some emphasis has been placed upon the fact that the amount of money involved has been voluntarily repaid, but in my view it would be wrong to interpret those cases as supporting any proposition that an offender is able to purchase mitigation. Where there has been a substantial degree sacrifice involved in the repayment, that is a matter which may properly be taken into account by way of mitigation. Otherwise, in my view, it is more a matter of aggravation when there has been a loss which is effectively irretrievable than a matter of mitigation when the loss has simply been made good". 19When the matter was called on today Mr Aitken indicated that he wished to make further submissions. He informed the court that he made inquiries as to the house that had been owned by the offender's late husband and her. Those inquiries revealed that the National Australia Bank foreclosed and accordingly there are no proceeds available from that house. However, further inquiries revealed that shortly before his death the offender's late husband took out some type of insurance policy for which no medical examination was required. As I indicated to Mr Aitken when he raised this issue, the relevant insurance company may very well be very interested in the various medical reports on the Court file sent to ground the numerous adjournment applications. 20It was put that given there is that insurance policy, there is now "some prospect of the moneys being repaid". No further information was given. However, I am dealing with the matter on the basis that there is no firm proposal for any of the moneys to be repaid. I am left wondering why this issue was left to the very last minute, Mr Aitken being aware that I had reserved and had prepared written remarks on sentence.

Pre-Sentence Report 21A Pre-Sentence Report was prepared on 15 February 2010. I have already referred to the reason for the delay in this matter. There was no application for an updated report. In any event, even if there had, it is highly unlikely that I would have ordered one. The offender is (or was until she went into custody) a resident of Victoria. Many of the community-based options were not available because of that fact. I am of the opinion that no other sentence other than full time custody is appropriate. 22The report notes that the offender denies having any knowledge of the offending. That must be firmly rejected. She was present at a number of the meetings. The ANZ bank accounts were in her name. I note the pleas of guilty. This is yet another example of an offender attempting to minimise their criminality by statements to the author of a pre-sentence report. 23Further, the report notes that the offender lived for many years in the north coast area of New South Wales. She met her late husband when she was 37 (that would have been in or about 2003). They began to cohabit soon after the meeting. They lived in Casino for a number of years before relocating after the offending. The offender maintained to the author of the report that the reason for the move to Moe was because the victims of the fraudulent conduct were harassing her. 24According to the report the offender suffers from insulin dependent diabetes. There is no reason to doubt that. There are no substance or alcohol abuse issues according to the report. The report recommends that the offender would benefit from financial counselling. I have no difficulty accepting that proposition. 25The author of the report indicates that there is a low likelihood of re-offending. While I am prepared to accept that opinion, in my opinion there must be some circumspection in that regard given the nature of the offending in respect of which I have to pass sentence.

Plea in Mitigation 26Mr Aitken submitted that the appropriate disposition would be a suspended sentence. Inherent in that submission is an acknowledgement that no other sentence other than a sentence of custody is appropriate - see R v Zamagias [2002] NSWCCA 17 at [24]-[25]. 27The plea of guilty was appropriately emphasised, as was the content of the pre-sentence report so far as the offender's personal circumstances and background was concerned. I have indicated that I will err on the side of generosity and allow 25% for the utilitarian value of the plea. The offender is 45 years of age, being the second of 5 children. She did not obtain employment until she was in her 20s. Her income has always been modest. That of course, in no way excuses the fraudulent conduct on which I am passing sentence. She did not excel at school. It was put and I accept that the offender is not particularly sophisticated. She apparently had to cease work because of a significant and severe injury to her wrist that resulted in an award of compensation. 28The lack of record was appropriately emphasised. It was put and I accept that some of the money dishonestly obtained went to repairs and renovations to the home at Casino. It was conceded that the criminality on which I am passing sentence was very much a joint criminal enterprise between the offender's late husband and her. It was conceded in submissions that this offender was present at most of the meetings. That submission is directly contrary to what is stated in the pre-sentence report. It is tolerably plain however, from what I have already said that I accept the submission put by Mr Aitken that it was a joint criminal enterprise, and that she was present at the meetings. The submission was made that the facts "indicate a greater involvement". The facts are those that were tendered without apparent objection. Those are the facts on which I am passing sentence. 29It was put and I accept that the relocation to Moe was because of the declining health of the offender's late husband, and the harassment from the victims. I am of the opinion that the latter issue cannot be seen as a mitigating factor. 30Further, it was submitted, and I accept that the offender is now largely on her own. Her family is scattered to disparate parts of Australia. It was put that the offender's late husband told substantial lies as to the state of his own finances at and after they met. Given the fraudulent conduct of her late husband, I accept that this occurred. However, again that cannot be seen as a mitigating factor. 31The fact that the offender is unlikely to re-offend was emphasised. As a secondary submission Mr Aitken put that I would find special circumstances. Given the age of the offender and that this is her first time in custody, taken with the need for cumulation given the number of offences and victims I am of the opinion that the case for special circumstances has been made out.

General Remarks 32I am obliged to give proper regard to sections 3A and 5 of the Crimes (Sentencing Procedure) Act 1999. I am of the opinion that no other sentence other than custody is appropriate given the amount of money involved, the number of offences, the nature of offences, the course of conduct and the need for general deterrence. The issue is then the length of the sentence. I am of the opinion that the starting point in respect of the offending in respect of the each of the two sets of victims is in the vicinity of 15 months imprisonment from which I will deduct 25% and "round down" the sentence to 11 months. Of course, proper regard will need to be given to the effect of the decision of the High Court in Pearce v The Queen (1998) 194 CLR 610. 33The issue is then whether the sentence should be suspended. Howie J in Zamagias said at [32]: "Further, a sentencing court must approach the imposition of a sentence that is suspended on the basis that it can be a sufficiently severe form of punishment to act as a deterrent to both the general public and the particular offender. Of course it must also be recognised that the fact that the execution of the sentence is to be immediately suspended will deprive the punishment of much of its effectiveness in this regard because it is a significantly more lenient penalty than any other sentence of imprisonment. The question of whether any particular sentencing alternative, including a suspended sentence, is an appropriate or adequate form of punishment must be considered on a case by case basis, having regard to the nature of the offence committed, the objective seriousness of the criminality involved, the need for general or specific deterrence and the subjective circumstances of the offender. It is perhaps trite to observe that, although the purpose of punishment is the protection of the community, that purpose can be achieved in an appropriate case by a sentence designed to assist in the rehabilitation of the offender at the expense of deterrence, retribution and denunciation. In such a case a suspended sentence may be particularly effective and appropriate". 34Given the need for general deterrence and the seriousness of the criminality involved in the matter presently under consideration I am of the opinion that it is inappropriate to suspend any sentence. It is also timely to remind myself of the decision of the Court of Criminal Appeal in R v Dodd (1991) 57 A Crim R 349 at 354, namely: "As Jordon CJ pointed out in Geddes at 556, making due allowance for all relevant considerations, there ought to be a reasonable proportionality between a sentence and the circumstances of the crime, and we consider that it is always important in seeking to determine the sentence appropriate to a particular crime to have regard to the gravity of the offence viewed objectively, for without this assessment the other factors requiring consideration in order to arrive at the proper sentence to be imposed cannot properly be given their place. Each crime, as Veen (No. 2) (1988) 164 CLR 465 at 472 stresses, has its own objective gravity meriting at the most a sentence proportionate to that gravity, the maximum sentence fixed by the legislature defining the limits of sentence for cases in the most grave category. The relative importance of the objective facts and the subjective features will vary: see for example, the passage from the judgment of Street CJ in Todd [1982] 2 NSWLR 517 quoted in Mill (1988) 166 CLR 59. Even so, there is sometimes a risk that attention to persuasive subjective considerations may cause inadequate weight to be given to the objective seriousness of the case: Rushby [1977] 1 NSWLR 594." 35Dodd was more recently affirmed by the Court of Criminal Appeal in R v Carroll [2008] NSWCCA 218 at [20]-[21]. The decision in the High Court does not impact on the affirmation of Dodd . 36I have referred to the issue of cumulation. In Nguyen v R [2007] NSWCCA 14, Howie J (Sully and Price JJ agreeing) said at [12]: "It seems obvious from a number of matters that have been before this Court recently, that there is abroad an insufficient understanding of the principles of totality and of the relevant factors to be taken into account when determining whether to order than sentences be served concurrently or made, at least partially cumulative. There is no rule that sentences committed on the same day or in the same criminal enterprise should be served concurrently. The issue has been considered in a number of decisions of this Court that should make it plain that the question to be asked is whether the criminality of one offence can be encompassed in the criminality of the other offence; see generally R -v- MMK [2006] NSWCCA 272. The position was explained in Cahyadi -v- R [2007] NSWCCA 1 as follows: "27...there is no general rule that determines whether sentences ought to be imposed concurrently or consecutively. The issue is determined by the application of the principle of totality of criminality: can the sentence for one offence comprehend and reflect the criminality for the other offence? If it can, the sentences ought to be concurrent otherwise there is a risk that the combined sentences will exceed that which is warranted to reflect the total criminality of the two offences. If not, the sentences should be at least partly cumulative otherwise there is a risk that the total sentence will fail to reflect the total criminality of the two offences. This is no regardless of whether the two offences represent two discrete acts of criminality or can be regarded as part of a single episode of criminality. Of course it is more likely that, where the offences are discrete and independent criminal acts, the sentence for one offence cannot comprehend the criminality of the other. Similarly, where they are part of a single episode of criminality with common factors, it is more likely that the sentence for one of the offences will reflect the criminality of both". 37A similar issue arose in Vaovasa v R [2007] NSWCCA 253. After reciting the above extract from Cahyadi , Howie J said at [16]: "This is not a new principle. Similar observations have been frequently made in this Court since Pearce was taken to require that each individual sentence imposed reflect only the criminality of the conduct to which it related and that the totality principle be addressed by an order making the individual sentences concurrent or at least partly cumulative. In R v Weldon and Carberry (2002) 136 A Crim R 55 at [48] Ipp JA stated that there is no inflexible rule that concurrent sentences should be imposed for multiple offences arising out of the one criminal enterprise. There are a number of cases that indicate that the fact that there are a number of victims will generally require an increase in the otherwise appropriate sentence where one victim only was involved: R v Wilson [2005] NSWCCA 219; R v KM [2004] NSWCCA 65". 38The matters on which I have to pass sentence involve a number of offences committed against two sets of different victims. Noting the principles stated above, I am of the opinion that it is appropriate to impose sentences that are substantially cumulative at least so far as the different victims are concerned. I will substantially alter the statutory ratio between the non-parole period and balance of term in respect of the second set of offences in order to give appropriate practical meaning to the finding of special circumstances, noting the cumulation of sentences.

Formal Orders 39In respect of each of the matters to which the offender has pleaded guilty she is convicted. Consequent upon those convictions I impose the following sentences: In respect of offence sequences 5, 6 and 8 a Fixed Term of 3 months commencing 22 March 2011 and expiring on 21 June 2011 . In respect of offence sequence 3, a non-parole period of 6 months commencing 22 March 2011 and expiring on 21 September 2011 . Thereafter a balance of term of 5 months to commence on 22 September 2011 and expiring on 21 February 2012. Parole is to be supervised. I have imposed fixed terms on offence sequences 5,6 and 8 as they are concurrent with a longer non-parole period. In respect of offence sequences 13, 14 and 15 a Fixed Term of 3 months to commence on 22 August 2011 and expiring on 21 November 2011 . In respect of offence sequence 12 a non-parole period of 5 months to commence on 22 August 2011 and expiring on 21 January 2012 . Thereafter a balance of term of 6 months to commence on 22 January 2012 and expire on 21 July 2012. Parole is to be supervised. Magistrate G Lerve Albury Local Court 01 April 2011 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: 20 July 2011

At a glance

Court

Decision date

Source

Judgment (10 paragraphs)

Parties

Cases Cited (15)