R v Colquhoun; R v Colquhoun

Texts Cited: B. Edgeworth, Butt’s Land Law (7th ed, 2017, Lawbook Co, Proview)

Category: Sentence

Parties: Rex (Crown)
Margaret Colquhoun (Offender)
Andrew Colquhoun (Offender)

Representation: Counsel:
S Healy (Crown)
B Neild SC (Offender, Margaret Colquhoun)
C Akthar (Offender, Andrew Colquhoun)
Solicitors:
Solicitor for Public Prosecutions (NSW) (Crown)
Greg Walsh & Co (Offender, Margaret Colquhoun)
Horowitz & Bilinsky (Offender, Andrew Colquhoun)

File Number(s): 2023/00227396; 2023/00223343

SENTENCING REMARKS

(This is a revised version of sentencing remarks delivered on 3 August 2026.)

Introduction

1. On 12 June 2026, sitting as trial judge alone, I found the co-offenders, Margaret Colquhoun (MC) and Andrew Colquhoun (AC), guilty and convicted them both on the joint charge of fraud, contrary to s 192E(1)(a) of the Crimes Act 1900 (NSW). Another accused, Peter Colquhoun (PC), husband to MC and father to AC, was acquitted. The Crown’s case against him depended upon proof of joint criminal enterprise liability.

2. By its verdicts, the Court determined, in MC’s case, that in the period from November 2013 to March 2015, she engaged in serial deceptions in the form of written representations. In AC’s case, the Court determined that in November 2013 and March 2014, he also engaged in deceptions (which were substantially the same as those of MC). The Court also determined that, in the cases of both MC and AC, it was by those deceptions that they obtained the property belonging to the deceased’s estate.

3. The offence carries a maximum penalty of 10 years’ imprisonment. That is an important legislative yardstick for sentencing. There is no standard non-parole period.

4. I note that at the sentencing hearing, the co-offenders were separately represented. Neither of them gave evidence themselves, although they tendered documents in their respective cases.

5. To the extent that they relied upon out of court statements made to others, such as a psychiatrist or character referees, I am cautious about the weight to be attributed to statements of a co-offender that had the tendency to be self-serving, or had the intention or effect of enhancing the position of the other co-offender, where neither offender subjected themselves to scrutiny: Hancock v R [2025] NSWCCA 213 at [35]. Such statements have greater weight where they constitute admissions, are independently corroborated, or are otherwise consistent with the inherent probabilities and logic of events.

6. I will structure these remarks by referring first to the facts, and then identifying the objective seriousness of the offending, in the cases of MC and AC, respectively. I will then consider their respective subjective cases separately.

7. As will be seen, the facts relating to the objective seriousness of the offending were (for the purposes of sentencing) generally not disputed. In relation to other facts relevant to sentencing, including those in mitigation, the basic governing principle is that a sentencing judge may not take facts into account in a way that is adverse to the interests of the offender unless those facts have been established beyond reasonable doubt. On the other hand, if there are circumstances which the sentencing court proposes to take into account in favour of the offender, it is enough if those circumstances are proved on the balance of probabilities. [1]

The facts

8. My lengthy reasons for the verdicts were published as R v Colquhoun; R v Colquhoun; R v Colquhoun [2026] NSWDC 198. The reader of these remarks will obtain greater familiarity with the subject matter by considering those reasons (which I will refer to hereafter as the ‘Verdict Reasons’). What follows in this section of these remarks is a summary and partial paraphrase of what was contained in the Verdict Reasons.

9. The offending occurred in a context of MC and AC applying from late November 2013 to Land and Property Information (‘LPI’) for title by adverse possession of real property situated at 61 Boyce Street, Glebe (the ‘Property’). The Property belonged to the estate of a deceased, Ansis Neilands. Mr Neilands had died in late July or early August 1995.

10. The Court found that it was partly through PC’s effective physical control of, and involvement with, the Property whilst acting as a solicitor for Mr Alex Huszti Snr, that from about the middle of 2003, the opportunity presented itself for MC to set about taking steps to make a future claim of adverse possession for herself or for her family more generally. In 2010, AC entered into occupation of the Property.

11. The doctrine of adverse possession requires the possessor of property to have physical possession, and manifest an intention to own the property, for a period of 12 years, after which the documentary owner’s interest is extinguished. The co-offenders’ claim of adverse possession was, in substance, initially made in November 2013, although, technically, it was reformulated in about March 2014 for the purpose of removing the caution and limitation on the title that had been obtained. Eventually, in May 2015, LPI granted the application and in June 2015, MC and AC obtained full title on the register to the Property.

12. In 1996, Peter Colquhoun (PC), husband to MC and father to AC, received instructions, and thereafter acted as the solicitor (through his law firm Colquhoun & Colquhoun), to a neighbour of the deceased, Mr Alex Huszti Snr, who claimed that he (and his wife, Rosa) were creditors to the deceased’s estate. The substance of the retainer was to apply for letters of administration for the deceased’s estate and to locate beneficiaries.

13. The Firm acted for Mr Huszti Snr from 1997 through to 2002, although the Firm’s files were closed in May 2003. Mr Huszti Snr died in August 2002.

14. After the deceased’s death, Mr Huszti located a will. By that will, the executor of the deceased’s estate was identified as the deceased’s sister.

15. On 16 December 1996, PC applied to the Supreme Court of New South Wales for letters of administration in respect of the deceased’s Estate on behalf of Mr Huszti Snr, as a creditor to the estate.

16. That application was not granted, and probate or administration was never granted for the deceased’s estate.

17. Between 6 March 1997 and 2002, PC’s firm, Colquhoun & Colquhoun (‘the Firm’), unsuccessfully searched for the executor and beneficiaries (the executor’s sons) to the deceased’s estate.

18. MC had limited involvement with the Firm. That occasionally included her attending upon the real estate agency of Paul Cooper, then trading as Ray White Balmain, to provide conveyancing documents to that agent and sometimes attending social functions of the Firm.

19. From early March 1997, the Property was rented out. Mrs Betty Verrijt moved in from 5 May 1997. Her tenancy was managed by Paul Cooper. Mr Cooper and PC had had a long-standing professional association whereby he often acted for PC’s clients in property sales and tenancies. He had also acted for PC and MC in personal dealings in property. By arrangement, Betty Verrijt’s rental was paid to Paul Cooper’s agency’s account. From there, the rent was transferred to the Firm’s trust account (after deducting for the agent’s expenses). PC used the monies from the Firm’s trust account to pay for expenses the Firm incurred in conducting searches for the beneficiaries to the estate, and also to pay itself for its costs and disbursements in acting for Mr Huszti Snr.

20. Betty Verrijt remained a tenant until about September 2002. During the period of her tenancy, the Property was in a poor condition. In October 2002, Paul Cooper reported to PC that the Property was uninhabitable and unlettable. He struggled to find a new tenant.

21. On 10 July 2003, a neighbour to the Property, Ms Kate Robinson, corresponded with an employee of the Firm about the Property, including its poor condition and the presence of squatters. Ms Robinson indicated to that employee that she might call police.

22. Soon after that indication, and (as I found) prompted by it, on the same day, PC took steps to instruct a builder, Peter Cairis, to secure the Property. Almost simultaneously, on 15 July 2003, MC wrote to Paul Cooper, through which she appointed him to manage the Property on her behalf.

23. An important factual matter at the trial was how MC came to be ‘introduced’ to the Property in July 2003. An account that she gave to police in an ERISP in 2023 was, effectively, that it was only through Paul Cooper mentioning the Property to her, and the opportunity for her to repair it, that she came to inspect the Property, provide instructions to Paul Cooper to manage it, and thereafter instructed a builder (Mr Cairis) to rectify the building on the Property. This was important for one of the deceptions the Crown alleged she later perpetrated against LPI. I rejected MC’s account. Later in these remarks, I refer to a matter that MC was reported to have said to her psychiatrist concerning her knowledge about the Property in 2003, which appeared to be at odds with what was submitted on her behalf at the trial.

24. From July 2003 through to 2010, MC undertook many different acts by which she manifested physical control of the Property and an intention to exclude others from the Property (including the documentary owner – the deceased estate). She outlaid significant expenditure to rectify the building. She paid insurance and local council rates. The Property was let out for several years and MC received the rent.

25. Significantly also, she paid land tax that was assessed on the Property. The circumstances in which she paid land tax was another controversial subject at the trial. In November 2005, MC had a verbal communication with Ms Elizabeth Abbey, who was the Chief Commissioner of the Office of State Revenue (‘OSR’, as it was then called). Prior to that telephone conversation, a questionnaire had been sent to the OSR. The questionnaire was not in evidence, but it appeared that a representation was made in it that she, MC, had been the owner of the Property since July 2003, when the OSR had previously understood that the Property was owned by the Estate of A V Neilands. There was a discussion between Ms Abbey and MC as to whether the Property had been tenanted, and MC indicated that it had been tenanted since 1997. To recall, the rent from Betty Verrijt was paid to Paul Cooper’s agency before being transferred to the Firm’s Trust account, whilst it acted for Mr Huszti Snr. On that basis, Ms Abbey indicated that the OSR would levy land tax on the Property for five land tax years commencing from December 2000.

26. On 20 February 2007, a letter was issued by the Department of Lands to the Estate of the Late A V Neilands. This was sent to the Firm’s address. The letter advised that the Department was in the process of converting all Old System title to Torrens title. The letter also indicated that according to the Department’s records, the deceased was the owner of Old System title and that the land had been converted to Torrens title.

27. In 2010, AC entered into occupation of the Property with his wife. Prior to that, they had lived in London for several years. After he entered occupation, he and his wife paid certain utility bills. He also paid rent to MC.

The deceptions in November 2013

28. On 24 November 2013, MC and AC commenced the process of applying for registered title to the Property based on a claim of adverse possession. They made statutory declarations in support Possessory Title Application AI308901. These statutory declarations were witnessed by PC, who as the ‘authorised witness’, recorded his qualification in the case of each statutory declaration, as that of a solicitor.

MC’s statutory declaration of 24 November 2013

29. In her Statutory Declaration on 24 November 2013, MC declared that “On or about 1 November 2000, the property appeared abandoned and was falling into disrepair. We (MC and AC) entered into possession at that time” (paragraph 4) (the First Representation). The Court found that the First Representation was false because MC and AC had not entered into actual physical possession on or about 1 November 2000.

30. MC also declared that “On the basis that we were already in possession as at 31 December 2000 we paid Land Tax for the 2001 Tax year and have paid Land Tax all subsequent years” (paragraph 4) (the Second Representation). The Court found that the Second Representation was false because MC’s payment of land tax for the 2001 Tax Year was not a proper basis for asserting that she and AC were already in possession of the Property as at 31 December 2000.

31. MC further declared that she and AC had been jointly in adverse possession of the Property since 1 November 2000 (paragraph 8) (the Third Representation). The Court found that the Third Representation was false because the basis of that claim was that they had entered into possession on 1 November 2000 and the Property was abandoned and had fallen into disrepair as at that date, which was false because the Property had not been abandoned as at that date.

AC’s statutory declaration of 24 November 2013

32. AC declared in his statutory declaration of 24 November 2013 that he had read MC’s statutory declaration of 24 November 2013 and agreed with its contents (paragraph 1) (the Fourth Representation). The Court found that the Fourth Representation was false because AC adopted as correct the representations made by MC in her statutory declaration, which themselves were false.

33. AC also declared that he had entered into possession with MC of the Property on or about 1 November 2000 (paragraph 2) (the Fifth Representation). The Court found that the Fifth Representation was false because he had no possession of the Property as at that date (and indeed had no connection with the Property at all until 2010, when he entered into occupation of it with his partner).

34. On 18 January 2014, Application for Possessory Title AI308901 was lodged with Land and Property Information (LPI) by John A Jenner Pty Ltd (“Jenners”). The statutory declarations of MC and AC of 24 November 2013 were submitted in support of that application.

35. On 4 March 2014, Primary Application PA83194 was signed by MC and AC and was stamped later that month. This was lodged (on 6 May 2014) for the purpose of getting rid of the caution and limitation inhibiting the applicants from obtaining full Torrens title; in the sense of guaranteeing indefeasible title.

The deceptions in March 2014

The Deed Poll executed in March 2014

36. On 20 March 2014, PC wrote to the Office of State Revenue. He enclosed a Deed Poll, along with supporting documentation. This followed correspondence with Mr Peter Blair, a solicitor at LPI, who eventually became the ultimate decision-maker in respect of the application for title.

37. In a Deed Poll, MC and AC declared that:

38. On or about 1 November 2000, the land was abandoned and falling into disrepair and MC and AC entered into possession at that time (Recital I) (the Sixth Representation). The Sixth Representation was false because:

(i) as at 1 November 2000 the land was not abandoned; and (ii) MC and AC did not possess the property on the date stated.

2. MC and AC had the intention to possess the Claimed Land during the period of their purported actual possession (paragraph 3) (the Seventh Representation). The Seventh Representation was false because: (a) MC had no intention to possess the Claimed Land before July 2003 because it was only from July 2003 that she became introduced to the Property; and (b) AC had no intention to possess the Claimed Land until some point in 2010 when he actually entered into possession.
3. MC and AC’s possession of the Claimed Land has been adverse to the interests of the documentary owner at all times (paragraph 9) (the Ninth Representation). The Ninth Representation was false because they had no adverse possession from 1 November 2000.

Requisitions in December 2014

38. On 16 December 2014, Mr Blair authored a letter of requisitions. The substance of the requisitions was to enquire how the applicants obtained possession of Old System title deeds for the documentary title. An additional request was made for the results of a probate search of the deceased estate.

The deceptions in January 2015

39. In her statutory declaration of 12 January 2015, MC declared that:

40. MC entered into possession of 61 Boyce Street, Glebe on or about 1 November 2000 (the Tenth Representation). The Tenth Representation was false because MC did not enter into possession of the Property on or about 1 November 2000.

41. MC found the “old system title documents for the property” within the premises “at that time” (the Eleventh Representation). The Eleventh Representation was false because “at that time” meant 1 November 2000, and MC did not find such documents there on or about 1 November 2000.

42. The Court determined that the First, Second, Third, Sixth, Seventh and Ninth (the last three being made jointly with AC), Tenth and Eleventh Representations were false to MC’s knowledge and that she intended LPI to rely upon them.

43. The Court determined that the Fourth and Fifth, Sixth, Seventh and Ninth (the last three made jointly with MC) Representations were false to AC’s knowledge and that he intended LPI to rely upon them.

Requisitions in January 2015

42. On 9 January 2015, Tom Blacket and Kate Robinson emailed to Mr Blair, of LPI, a letter of objection. This was in response to Mr Blair’s letter of 16 December 2014 to the adjoining neighbours of the Property, through which notice was given of MC and AC’s Primary Application.

43. The content of Mr Blacket and Ms Robinson’s complaint was part of the reason why, on 15 January 2015, Mr Blair sent a further letter of requisitions to the Firm (directly, rather than to Jenners).

44. Mr Blair’s requisitions of 15 January 2015 can be broken down into three parts. The first part (in paragraph 1) requested a statutory declaration from the applicants “detailing how they became aware that the subject land was abandoned and falling into disrepair”. Paragraph 1 indicated that the statutory declaration to be provided “should address the issue of whether they were allowed into possession by Peter Colquhoun”.

45. The second part (in paragraphs 2, 3, 4 and 5) asked questions which generally concerned the subject of the connection between PC, the Firm and the deceased estate; with paragraph 5 containing a request for copies of any tenancy agreement or managing agency agreement with a real estate agent.

46. MC’s statutory declaration of 12 March 2015 may be viewed as a partial response to Mr Blair’s letter of 15 January 2015. Her statutory declaration was supplied in response only to paragraph 1 (the balance of the response to Mr Blair’s letter came in the form of the Firm’s letter of 12 March 2015, authored by PC).

47. On or about 8 May 2015, Peter Blair, acting as delegate for the Registrar-General, granted the Primary Application.

48. The Court determined that the First, Second, Third, Sixth, Seventh and Ninth (the last three made jointly with AC), Tenth and Eleventh Representations all significantly and substantially contributed to LPI’s decision to grant the application.

49. The Court determined that MC dishonestly obtained the Property by the deceptions. The reasons for that finding were set out at paragraphs [555]-[578] (incl) of the Verdict Reasons.

50. The Court determined that the Fourth, Fifth, Sixth, Seventh and Ninth Representations (all being made jointly with MC) all significantly and substantially contributed to LPI’s decision to grant the application.

51. The Court also determined that AC dishonestly obtained the Property by the deceptions. The reasons for that finding were set out at paragraphs [579]-[583] (incl) of the Verdict Reasons.

52. By 15 June 2015, MC and AC were identified as the registered owners (Torrens title) of the Property. By that date, for the purpose of proof of an essential element of the charge, they had ‘obtained’ the Property.

53. They later sold the Property in June 2022 for $3.67 million.

The objective seriousness of the offending

54. There are many cases of fraud not involving the deployment of professional skill in breach of trust and which may not fall under the label of ‘white collar crime’. For fraud offences, although they are not to be applied in any formulaic fashion, it is generally established that the following factors (to the extent that they are known) have particular salience when considering the objective seriousness of an offence:

(a) the nature and value of the property that was obtained; [2] (b) the nature of the dishonesty and deceptions involved; [3] (c) the period of time over which the deceptions occurred; [4] (d) the degree of planning and sophistication of the deceptions perpetrated; [5] (e) the number of victims involved and their circumstances; [6] (f) the offender’s motive for the offending; [7] (g) whether any breach of trust occurred [8] .

Nature and value of property

55. According to my researches, most sentencing cases under s 192E of the Crimes Act concern the obtaining of a financial advantage (s 192E(1)(b)). Where they concern s 192E(1)(a) at all, they generally deal with chattels, which typically have a readily ascertainable value. The deceptive and dishonest use by a person of someone else’s credit card to acquire goods in a retail store is a paradigm example.

56. Here, the property concerned is real property, a comparatively illiquid asset (relative to other asset classes), where values can fluctuate in a market. In oral argument, I queried whether there were fraud cases concerning rare artwork as a possible comparator, but was informed by Counsel that their searches did not reveal any such cases.

57. As noted, the offenders sold the Property for $3.67 million in June 2022. This was about seven years after they acquired full Torrens title to it. Although MC, in particular, made substantial improvements to the Property before that acquisition, MC and AC paid no monetary ‘consideration’ for their acquisition of full legal ownership of the Property in the middle of 2015.

58. As Senior Counsel for MC expressed the matter, although MC (and AC) obtained registered title to the Property by means of the offending, this was something which they would have been entitled to obtain in any event, at a later point in time. It was not possible to quantify what I referred to in the Verdict Reasons as the “expedition of the process” of acquiring the Property, in which she or they already had certain interests.

59. However, that description should not be overstated or taken out of context. As the Crown points out, and as was found at [444] of the Verdict Reasons, this was not a case where MC had ever declared that she was applying as a representative or agent for AC. What was being represented was that each of them was jointly entitled, in their own right, through adverse possession, notwithstanding that AC had nothing to do with the Property until 2010. Viewing his position alone, he would have had to wait until 2022 to make valid application on the basis of adverse possession.

60. Moreover, I agree with the Crown that it affords no defence, and very little mitigation, that the same benefit (whether property or a financial benefit) might have been acquired by lawful means in a counterfactual scenario. The Crown cited the decision of R v King [1987] 1 QB 547, a case of an attempted fraud concerning deceptive misrepresentations to a property owner regarding the removal of trees for a proposed price. [9] In that case, it did not avail the offenders to say that the owner may have consented to the removal of trees for a negotiated fee. The Crown submitted, and I agree, that there is a policy behind the index offence, that it can be committed even if an accused is prepared to pay the price for property. There is, however, something more in this. A harmful result will plainly be relevant to sentencing, but fraud is somewhat different in comparison to, say, a personal violence offence (or dangerous driving offence), where typically the scale of severity of an offence is heavily influenced by the extent of the resultant harm. There is a policy in s 192E to proscribe dishonest and deceptive conduct directed towards obtaining something to which the offender has no entitlement. It is the deceptive and dishonest obtaining of property belonging to someone else that is the essence of the offence. That is so whether or not an accused has prospects of having such entitlement in the future, and whether or not the obtaining of the property does result in substantial loss to the victim or substantial gain to the offender.

61. Both offenders emphasised that no finding can be made as to the quantum or value of the property obtained. No monetary value of the benefit was, or could be, particularised. Ultimately, MC submitted (and AC adopted) that the value of what was acquired by the commission of the offence was the difference between the value of the Property after the grant of Torrens title (in June 2015) and the value of their interest in the Property before that occurred.

62. Senior Counsel for MC pointed out that there was no evidence at trial as to the value of the Property as at May or June 2015, when the offenders acquired full legal ownership of it, even though MC, at least, accepted that, being inner city Sydney real estate, the Property would inherently be likely to have had considerable value. It was pointed out that the evidence indicated a range between the outlying figures of $250,000 (being the valuation attributed to it in the documents submitted to the Supreme Court in 1996) and the $3.67 million sale price when sold in June 2022. But it was said that when quantifying the benefit of what was obtained, allowance should be made for MC’s expenditure of $100,000 for her expenditure on improvements.

63. The Crown submitted that the Court could, in the absence of direct evidence, infer that by the middle of 2015, the Property had a value of well over $1 million and at least $1.5 million. This was very substantial. The Crown argued that the aspect of the cost of renovations or other expenses associated with the upkeep or maintenance of the Property after July 2003 did not really come into it. For one thing, MC’s submissions left out of the equation the rent ($184,000) she received in the period covering February 2004 to January 2011. I agree with that. Moreover, it was the cost of renovations that, to a significant degree, potentially qualified MC as an eligible applicant for title by adverse possession (subject to temporal considerations). Further, any outlays, including for renovations, incurred after the middle of 2015, at the point when the offence was completed, were irrelevant. I agree with that as well.

64. Senior Counsel for MC further submitted that the position was complicated further by the circumstance that by April 2014, the applicants had obtained qualified and limited title. That meant, according to AC, that there was no basis for finding that any specific monetary value was intended, or even contemplated.

65. However, a difficulty with the contention that the offenders obtained qualified and limited title before the offence was ‘completed’ in May or June 2015 (by registration of legal title), was that it could equally be said that the deceptions comprised by the First, Second, Third, Fourth and Fifth Representations also contributed to or aided the acquisition of qualified and limited title. I agree with the Crown’s submission on this point that it would be inappropriate to regard the transformation from qualified and limited title to full Torrens title as a legitimate ‘upgrade’ in the circumstances.

66. Senior Counsel for MC then argued that offenders had actually acquired an inchoate title, even before they obtained qualified or limited title. That may be so, but there remains a question as to whom they acquired that interest against.

67. In Professor Edgeworth’s Butt*’*s Land Law (7th ed, 2017, Lawbook Co, Proview) (at [16.350]), the editor argued that an adverse possessor who had been in possession for the full limitation period had an interest in land in advance of being registered as the proprietor through a possessory application, and has a statutory right to registration assuming all other requirements in Part 6A of the Real Property Act 1900 (NSW) are met.

68. The learned editor contrasted that position against the position of adverse possessors who (like these offenders) had been in possession for less than the full limitation period. The learned editor said the following about persons in the position of these offenders:

“But what is the position of a possessor who has been in possession for less than the full limitation period, and so is not yet entitled to lodge a possessory application? Does he or she have an inchoate “interest” in the land similar to the inchoate interest enjoyed by an adverse possessor of land under old system title. From one perspective, no interest of any kind, legal or equitable, arises until the possessor is registered as proprietor under a possessory application. This view draws in particular on s 45C of the Real Property Act 1900 (NSW), which precludes the acquisition of any interest by virtue of long possession except as under Pt 6A. It also reflects the policy as expressed by the Minister when introducing Pt 6A into Parliament: ‘An adverse occupier, no matter how long he has been in possession is, until the register is altered in his favour pursuant to an application, in no better position as against the registered proprietor than a mere trespasser’. But the reference to a ‘mere trespasser’ here refers to the possessor’s status as against the registered proprietor against whom no possessory rights of any kind exist. But as far as others are concerned, as long as he or she retains possession of the land, it will defeat dispossessors.”

69. This means that until the 12 year period had passed, the offenders were, as against the estate (as registered proprietor), mere trespassers. But so long as possession was retained, the possessor would defeat persons other than the registered proprietor. [10] This reasoning appears to be consistent with the authority that MC brought to the Court’s attention, being Sidoti v Hardy (2021) 105 NSWLR 1, where Brereton JA recognised (at [87]), that s 45C(2) of the Real Property Act applies both to crystallised possessory claims and to inchoate claims in respect of which time has commenced to run, but has not yet expired, before the land becomes registered*.* In that case, the adverse possessor had been in possession for the full length of the limitation period.

70. That is not, however, this case. Between 24 November 2013 and 8 May 2015, neither MC nor AC had been in adverse possession for the length of the limitation period. I accept the Crown’s submission that it did not appear to be the case that Brereton JA cast doubt upon the correctness of Refina. They had no rights against the estate (but were mere trespassers as against it). At most, they arguably had inchoate rights only against third parties who may have had a competing claim to possession.

71. Although it is unusual for an offence under s 192E(1)(a) for there to be an absence of quantification of the value of the property obtained, that does not preclude the Court from reaching a finding that the Property that was obtained had substantial value, or that by obtaining the Property, the offenders acquired a substantial property benefit. The Court is not now assessing a claim for compensation.

72. As a rough guide, the Court can accept MC’s submission that between 1996 to 2022, the Property, located in Glebe, roughly increased in value from $250,000 to $3.67 million. The period from November 2013 (when the deceptions commenced) to June 2015 (when Torrens title to the Property was obtained) was, to put the matter somewhat crudely, in the second half of a period that ran for just over a quarter of a century. The offenders did not purchase the Property in a conventional way. That they bore expenses and incurred costs of rectification can be accepted. That MC received a substantial amount of rent even before she acquired full legal ownership rights to the Property can also be accepted. No accountant’s evidence was before the Court indicating how the pecuniary benefits of possession were netted off against the expenses. No tax returns were before the Court from which it could be indicated what, if any, taxation advantages accrued to either or both of MC and AC (or even indirect advantages to other members of the Colquhoun family).

73. There are too many variables and inherent uncertainties in reaching any valuation, and it would be impermissibly speculative to do so.

74. The Court is able to conclude, albeit without quantification, that the value of what was obtained was of substantial economic benefit to the offenders.

75. I also accept the Crown’s submission that in the middle of 2015, MC and AC became joint tenants to a property with indefeasible title. By doing so, they obtained property in the inner city of Sydney that inherently had substantial economic value. There is no evidence to indicate any agreement between them, at the time they obtained the Property in the middle of 2015, that one of them was better off than the other as a result.

Period of time

76. Both offenders were found guilty, jointly, of a single charge. In R v Richard [2011] NSWSC 866, Garling J observed that there can be a considerable advantage to an offender in a “rolled up” charge, in that it restricts the maximum penalty to that for one offence, instead of what, in reality, could have been charged as a number of discrete offences. [11] This is particularly so in the case of MC.

77. In both offenders’ cases, the Crown nominated a period of 18 months in which the offending was pursued up until the point when the offending was committed. MC’s acts of deception that caused the obtaining the Property occurred in three instances, being in documents created in November 2013, March 2014 and January 2015 (noting that her additional deceptions in March 2015 did not cause or contribute to the obtaining). In AC’s case, his acts of deception occurred twice, in documents created in November 2013 and March 2014 (i.e. four months apart).

78. However, I agree with the Crown that this is the appropriate period for MC and AC since the period encompasses the acts of deception, but also a period in which the offenders could have withdrawn their application before the offence was completed. This is a substantial period of time.

Nature of the deceptions and dishonesty

79. As was emphasised in the Verdict Reasons, the deceptions were perpetrated against LPI, an instrumentality of government. As was also emphasised in the Verdict Reasons, much of the offending comprised deceptions perpetrated in statutory declarations, which is inherently serious misconduct.

80. MC submitted two matters in particular. First, she apparently held a genuine belief that she was entitled to date the period of adverse possession from the date she paid land tax for the purpose of the application, being November 2000. That, it was said, was conceptually distinct from thinking that she was in actual physical possession of the premises from November 2000.

81. A problem with that submission is that it controverts the findings concerning the mental element of deception and dishonesty made against her (Verdict Reasons [425], [562], [568]-[569]), and particularly the finding to the effect that she was using this argument as something of a pretext to justify her action.

82. Secondly, it was submitted that she sought to correct representations that were ultimately found to have been the operative cause of obtaining the Property, which correction was accepted by Mr Blair. From this latter submission, the argument was put that, in effect, she voluntarily ceased her offending and/or sought to withdraw from the commission of an offence which had not yet been completed.

83. A problem with this submission is that it neglects findings made in the Verdict Reasons that the purported correction was itself misleading (Verdict Reasons [410], [481]-[489], [563]-[567] and [573]). That being so, the purported ‘correction’ does not reduce the seriousness of, or moral culpability for, her earlier deceptions, even if they did not cause or contribute to the acquisition of the Property.

84. Moreover, to say that an offender has ‘desisted’ from further offending ordinarily connotes a level of voluntariness, manifesting a consciousness of past wrongdoing. Such ‘corrective’ information that MC provided was not unsolicited, but in response to requisitions raised by Mr Blair which, as explained in the Verdict Reasons ([474]), were themselves the product of happenstance: they were prompted by the actions of Tom Blacket and Kate Robinson in January 2015.

85. MC did not ‘desist’ from offending and nor did AC.

86. I agree with the Crown that desisting would have been a simple matter of each of the offenders withdrawing the statutory declarations and other documents containing the deceptive representations.

87. The essential element of property being (also) dishonestly obtained inherently engages certain sentencing principles which will be referred to later as I synthesise the range of relevant considerations.

The degree of planning and sophistication of the offending

88. Counsel for both offenders acknowledged that multiple documents were signed containing the deceptive statements. But it was commonly said that the offending was not especially sophisticated. It involved a misrepresentation, commonly repeated, about what Senior Counsel for MC described as a “relatively uncomplicated matter”.

89. MC emphasised further that the documents containing the misrepresentations were drafted by her husband, PC, an experienced solicitor, and that the Court should infer that she was ‘guided’ by him in her actions. This particular submission, which she had also adverted to in her ERISP, does not assist MC. Firstly, the submission is intrinsically unattractive for its manifest minimisation of responsibility. The submission had the effect, if not the intention, of making her role appear less serious when considered in the context of an ‘enterprise’ (the word chosen in paragraph 35 of MC’s written submissions, but which Senior Counsel later attributed to Dhanji J’s statement of principles in Nosti). The reference to an enterprise was ironic. MC (and AC) mounted a vigorous defence at trial that there was no enterprise; or at least no criminal enterprise, as the Crown had alleged it to be. It does not avail MC much to say that PC was more responsible for the deceptions than she was.

90. Secondly, MC’s attempt to bring her husband into things has an unintended effect of heightening the extent of the planning involved in the offending. The circumstance that PC drafted the documents has to be seen in the context that MC and AC were content to rely upon PC’s involvement, by taking advantage of his status as a solicitor (of long standing), to provide documents containing the misrepresentations. Much like a taxpayer who employs a reputable firm (of accountants or tax agents) to prepare a tax return because of their credit with the Australian Taxation Office, MC and AC effectively borrowed PC’s status and reputation in aid of their deceptions. That displayed some level of sophistication in addition to the planning, but it had the added benefit that a decision-maker would naturally be inclined to repose confidence in documents created or sent to it by a solicitor. This circumstance lends weight to the role of general deterrence in the sentencing exercise since, as the Crown correctly pointed out, the use of a professional to act, facilitate or function as an intermediary is apt to make offending more difficult to detect.

91. As to AC, there was a flavour in the sentencing assessment report that he placed trust in MC, that he was ‘trusting’ in nature, and that he was, more or less, doing her bidding. That signifies, and the Court finds, a lesser involvement on his part than MC in terms of planning.

Motive

92. Unlike the position with respect to an offence under s 192E(1)(b), where a motive of financial gain is an essential element of the offence and cannot be taken into account as an aggravating factor, [12] this aggravating factor may apply to an offence under s 192E(1)(a).

93. A submission made at trial (which was not accepted) was that the offenders lacked an obvious motive to engage in the offending since there was but a relatively short period to go before the limitation period had expired, which would have facilitated the making of the application.

94. This submission was reprised by the offenders in the sentencing hearing. AC submitted that the offending occurred ‘about a month’ prior to the expiry of the 12 year limitation period before entitlement to property could validly be claimed. That submission appeared to use the point where the offence was completed as the starting point. Even if the details were different, MC said the application was made 16 months short of the expiry of the limitation period. MC’s reference point, being the date when the application was first made, is to be preferred, given that by the statutory provision, no application can be made for adverse possession until the 12 year limitation period has expired.

95. A problem for AC with this emphasis upon timing is that, insofar as he relied upon adverse possession where the registered proprietor was a deceased estate, he could not have obtained any interest in the Property without his mother any sooner than 2022. Although it was suggested at the trial that persons can act in a representative or agency capacity in making joint applications for property, there was no actual evidence from MC (as representative, or agent) or AC (as principal) that this was what either of them had intended before the offending was committed: see [444] of the Verdict Reasons. That was not to say that a statement made by AC could not also be relied upon by MC, and vice versa.

96. MC submitted that it could not be found that the offence was committed for greed, at least in an ‘immediate’ financial sense. For example, there was no attempt by her to obtain any quick re-sale after June 2015.

97. The Crown submitted that necessarily, the motive for the offending was pecuniary, in the sense that the gain had economic value. This is true as far as it goes but it does not go far.

98. As was pointed out in the Verdict Reasons, what prompted them to act as they did throughout the period from November 2013 to January 2015 was not apparent. Neither is it apparent at the sentencing hearing.

99. For the preponderant part of the period from July 2003 to June 2015, MC did not occupy the Property herself but acted as if she were a de facto landlord, even beyond 2010. Prior to November 2013, she used the Property in the manner as if it were her own investment property, where she obtained the benefit of rent and, viewed prospectively, upon obtaining full title, she would have been able to get the benefit of whatever capital growth there was in the Property until its later sale. The Court was informed of other properties in which she had an interest. In her ERISP she emphasised that financial independence and security was important to her.

100. There were, in short, reasons why, from July 2003 onwards, she might have wanted to acquire full Torrens title to Property. But they do not explain why she acted as she did from November 2013. It appears that at that time, she was still receiving an income stream and had the prospect of obtaining the benefit of substantial capital growth upon acquiring lawful ownership, having been in possession since July 2003. Securing full Torrens title would have solidified her title. But there was no obvious reason for her to hasten the process in November 2013 when she had only a relatively short period, until July 2015, before she could lawfully bring her application based upon adverse possession.

101. AC had been in occupation of the Property since 2010. He paid rent to his mother. There was no evidence as to what entitlements he might have had to property in any inheritance had MC brought an application in July 2015 in her own right (without him). Reiterating that there was nothing to suggest that MC did act as his agent or representative, prior to his offending in November 2013 and in March 2014, the prospect of him being able to establish an independent entitlement via adverse possession was a very long time on the horizon. He must have known in November 2013 that without his mother, he had no prospect of securing a full legal interest, given that it was her acts of possession, and what they indicated about an intention to exclude all others since the middle of 2003, that underpinned the application. He cannot take advantage of the notion that the prospect of his lawfully obtaining Property in a short time was within his grasp.

102. As with his mother, there is a vacuum in the evidence as to why he acted as he did when he engaged in the offending. There was nothing pointing to his financial circumstances in 2010. If, however, as was suggested, he was able to provide or procure $1 million worth of renovations after 2015, it appears that he was financially comfortable.

103. One thing is clear, however. The experience of the Court is that many frauds are perpetrated out of need, be it poverty, or drug addiction, or straightened financial circumstances arising from the vicissitudes of life. Those circumstances may at least cast the offending in a more sympathetic or comprehensible light.

104. A circumstance of need as a basis for mitigation is a matter for which the offenders must prove on the balance of probabilities. Neither offender attempted to prove that their offending was necessary in any sense.

105. As the authorities indicate, it is unnecessary for the Court to determine the motive for the offending. It is a fact that is unknown. What the Court can and does determine is that the offending was not motivated by need.

The State as victim?

106. By the charge that the co-offenders were convicted of, the victim was the estate of the deceased. The circumstance of the Property belonging to the e**state was an essential element to the offence. There is no reason to doubt that through the efforts of PC and those of the solicitors of his firm, and in conformity with their duty of care to Mr Huszti Snr, time and resources were devoted (albeit for which the Firm received recompense through rent) to inquiring whether there were in fact beneficiaries to the deceased’s estate.

107. The Crown argued that in the absence of identifiable beneficiaries to the estate, in substance, the Property of the unadministered estate would very likely have vested in the State of New South Wales. That being so, the State could be regarded as a victim of financial loss. In this, the Crown relied upon the evidence of Mr Richard Neal (an accredited specialist in wills and estate law), which, as I recall, was not seriously challenged at trial, albeit that it did not require acceptance either.

108. Senior Counsel for MC acknowledged the possibility that if no beneficiaries were found, the Property may have passed to the State.

109. It would not be right, I think, to regard this circumstance as an aggravating factor, for the purposes of s 21A(2)(m) of the Crimes *(*Sentencing and Procedure) Act 1999 (NSW) (‘CSP Act’), since, as the Crown explains, such factors have to go above and beyond what ordinarily arises. Nevertheless, there is a possibility (at least) that on the counterfactual of the universe as it should have been, the State would have had an interest in the Property. This is a factor to be taken into account in evaluating the seriousness of the offence.

Irrecoverable loss?

110. Associated with its submission that the State of New South Wales suffered loss, the Crown pointed out that, consistently with their approach of not admitting any wrongdoing (nor accepting responsibility), neither offender offered any restitution, but instead treated the proceeds from the sale of the Property in 2022 as their private property.

111. The Crown indicated that proceedings instituted by the NSW Crime Commission against the co-offenders under the Criminal Assets Recovery Act 1990 (NSW) are on foot in the Supreme Court of New South Wales. I understood that the purpose of this indication was to explain why there was no Confiscation of Proceeds of Crime Act 1989 (NSW) application on foot. The Crown acknowledged that there was a prospect of a compulsory exaction of money.

112. There is too little information before the Court to place weight upon this information. Neither of the offenders’ Counsel referred to it.

Victim-less crime?

113. In R v Pont (2000) 121 A Crim R 302; [2000] NSWCCA 419 at [73]-[75], Greg James J (Beazley JA and Wood CJ at CL agreeing) reviewed, among other things, English authorities for sentencing in theft related matters. In the course of this, his Honour referred to the English decision of R v Barrick (1985) 81 Cr App R 78 where the Lord Chief Justice identified “the impact of the offences on the public and public confidence” as a relevant consideration.

114. I think some analogy can be drawn with cases of fraud involving manipulation of the stock market. In DPP (Cth) v Couper (2013) 229 A Crim R 115; [2013] VSCA 72, the Victorian Court of Appeal (per Tate JA, Harper JA and Williams AJA agreeing) observed as follows in that context:

“[107] As the Honourable Justice McClellan, speaking extra-judicially, said:

When assessing the seriousness of a crime involving violence to an individual, the extent of the harm occasioned to the victim is a significant matter. The sentence may vary depending upon the nature and extent of the injuries inflicted on the victim. White-collar crime also impacts upon victims, sometimes many, but usually lacks any physical violence. Although mostly confined to a loss of money, that loss may have a devastating consequence for the wellbeing of the individual. Identifying and weighing the harm may prove difficult. When a market is manipulated, the loss to a particular individual may be impossible to identify.

[108] While the particular individuals who were harmed in this case from the respondent’s recording of false entries in company journals and the resulting artificial increase in the price of BXP shares may not be identifiable, there is a harm that lies in the erosion of confidence in the market as a whole. The offending had the potential to impair the efficacy and integrity of the market in public securities.” [13] (emphasis added)

115. In the present case, the deceptions were repeatedly perpetrated by the co-offenders upon Land and Property Information, or, perhaps more accurately, the Registrar-General, who is responsible for the execution of provisions in the Real Property Act 1900 (NSW). This, or these are agencies of government. Mr Blair was the Registrar-General’s delegate. It is the Registrar-General that is responsible for the integrity of the Register, as the means by which title to real property may be changed. One of the Registrar-General’s statutory functions is to maintain a Register (s 31B(1)). Apart from the benefit of indefeasibility of title, and associated with it, another attribute of Torrens title is its transparency: those who are in the property market (who have an actual or prospective interest in dealings in land) can generally ascertain with limited inquiry who holds title to a property. Such dealings, including applications for title (such as possessory title), are governed by well-established general principles and statutory provisions. Once people come to think that the Registrar-General can be deceived into effectuating changes in title to property, confidence in that system may be shaken. It makes no difference in principle whether the deception is perpetrated in an application for possessory title or in the registration of a lease or mortgage. There is also a need for the sentence to vindicate persons who do honestly engage in land dealings and applications for possessory title with LPI.

116. The offenders obtained full Torrens title on 8 June 2015. A hypothetical person inspecting the Register for the Property between 8 June 2015 and, say, 10 July 2015, would not know that MC was not entitled to have obtained the Property by adverse possession, or that AC would not be qualified to obtain title by adverse possession until sometime in 2022.

117. Senior Counsel for MC argued that the notion of a loss of confidence was too remote. But I agree with the Crown that the Register and Land Property Information form part of the civic infrastructure of the State, and that where fraud occurs on the Register, it can have ripple effects, even if that is difficult to quantify.

118. For applications of the kind that the offenders brought, it was the Registrar-General, through its delegate Mr Blair, who stood between the offenders and their acquisition of real property. In a not insubstantial sense, the offenders’ fraud was a fraud on the Register and those who rely upon it.

Breach of trust

119. MC submitted (and AC agreed) that no breach of trust occurred here. She owed no duty to the deceased estate or its beneficiaries.

120. The Crown accepts, as do I, that this feature is absent in the circumstances of this offending.

Summary on objective seriousness

121. MC submitted that whilst the offending exhibited factors suggestive of some gravity, those matters needed to be ‘set off’ against those mitigating the objective seriousness.

122. AC acknowledged that the offending was serious.

123. The Crown submitted that overall, the offending showed considerable planning and involved the obtaining of a Property that had substantial value. The offending was pursued over a substantial period of time. If it was necessary to do so, the Crown characterised the offending, by both offenders, as being ‘above the mid-range’. In making that submission, apparently on the basis of the evidentiary material that has emerged through the offenders’ cases, the Crown says that AC had less involvement in the planning than MC. To that extent, his conduct was less serious than hers.

124. The matters that MC referred to were not ‘mitigating’ in the truest sense; they only indicated that some matters which would ordinarily aggravate the seriousness of the offending were not present in her case.

125. In summary, MC put herself in a position to set up for herself a claim of adverse possession of the Property from July 2003 when it was in an uninhabitable state. Recognising that she outlaid significant expenditure to restore the Property, she did what most property investors would do when presented with the prospect of a good return through capital growth and, after taking possession of the Property from July 2003, she also obtained rent for most of the period up to 2014. It was not suggested that any of these activities were themselves unlawful. These were necessary conditions without which her offending would not have occurred or, at least, would not have been effective.

126. It was not shown to be financially necessary for her to engage in the offending at any time, let alone when, within in a relatively short further period of time, she would have been entitled to validly make a claim of adverse possession. She secured herself a joint entitlement to an inherently valuable property. She engaged in her offending over a substantial period. Through the intermediation of her husband, a long-established solicitor, she helped make the already notoriously difficult task of detecting this type of offending even more difficult. She deceived a government agency and, contrary to her submission, when purporting to ‘correct’ earlier misinformation (at Mr Blair’s behest, not her own), she engaged in other deceptive conduct (even if that did not have any causal effect). Her conduct was serious.

127. Nothing was known at the time of the trial as to what interactions or communications took place, as between MC and AC, to explain the latter’s involvement. Some additional information became apparent in the sentencing hearing, but not much. The objective deceptiveness of the statements in the statutory declaration and Deed Poll was starker in AC’s case than in MC’s, given that he had nothing to do with the Property until 2010. I accept that there is nothing to suggest that the application was his idea. But even accepting this evidence on the probabilities, he showed a lack of inquisitiveness despite receiving a half share legal and registered interest in an inherently valuable property for nothing after only five years of occupying it. His conduct was also serious, although not as serious as that of his mother.

No aggravating factors

128. The Crown did not rely upon any statutory aggravating factors.

MC’s subjective case

Age, background and physical and mental health conditions

129. Although the period referred to on the charge was broad, the deceptions (by which the offence of fraud was completed) occurred in the period from November 2013 to March 2015. In that period, MC was 66 to 67 years of age. She is now approaching 79 years of age.

130. In a sentencing assessment report, it is noted that she resides with her husband and granddaughter. She has had a long and successful marriage with her husband and has positive relationships with her two adult sons, one of whom is the co-offender (AC) and the other who resides in the United Kingdom.

131. MC’s background is set out more extensively in a report by Dr Olav Nielssen, a psychiatrist, dated 11 July 2026.

Background

132. I adopt Senior Counsel for MC’s summary of ‘salient’ matters concerning her background (paragraph 43 of her written submissions); although I will deal with one of those matters referred to in that summary later as it merits separate treatment. The balance of the matters in her Senior Counsel’s summary were that:

133. MC completed high school and subsequently trained as a nurse, obtaining qualifications in midwifery and neonatal intensive care. There were some certificates before the Court that indicated her qualifications as a nurse and a more recent academic qualification, being a Bachelor of Social Science (with a major in psychology).

134. After marrying PC (in 1973), she continued to work as a nurse before giving birth to two children, after which she resumed working in health-related administration.

135. Her daughter was born with a rare genetic syndrome and had to undergo numerous surgical procedures before sadly passing away in 2024.

Advanced age

133. Senior Counsel for MC referred the Court to the statement of principles concerning advanced age in Tsoumbanellis v R [2025] NSWCCA 107 at [68]-[69], where Dhanji J adopted principles that had been summarised by Steytler P in Guylas v Western Australia (2007) 178 A Crim R 539 at [54]. They are:

“(1) Where moral culpability is reduced by reason of advanced age (which will inevitably mean that the advanced age is coupled with some other factor that is a consequence of it, for example when there is an age related mental impairment), allowance should be made for that factor.

(2) Where there is evidence sufficient to justify the conclusion that circumstances associated with advanced age (for example, continuous ill health, or ill health coupled with physical or mental frailty) will make imprisonment more arduous for the offender than is normal, allowance should be made for this.

(3) Account may also be taken of hardship for the offender arising out of his or her knowledge that a lengthy sentence of imprisonment is likely to destroy any reasonable expectation of useful life after release. However, the punishment must still reflect the crime and the seriousness of the offending behaviour may be such that the offender has forfeited the right to any reasonable expectation of useful life after release.

(4) Deterrence and denunciation are important even in the case of an offender of advanced age. However, where there are factors associated with age that justify a more lenient sentence, the general public will understand why the sentence is less severe than might otherwise have been the case and the purposes of deterrence and denunciation will still be served. However, if this is to be achieved, the punishment must still reflect the seriousness of the crime.”

134. As to the third of these factors, Dhanji J emphasised previous authority [14] to the effect that in the event a custodial sentence is imposed, each year spent in prison represents a substantial portion of the remaining years of life which the offender may expect.

135. Senior Counsel for MC submitted that some allowance should be made in her favour, in the event that a sentence of imprisonment is imposed, in relation to the third and fourth factors (and the proposition from DB referred to therein).

136. The Crown concedes that by a combination of advanced age and (age-related) health issues, some leniency is warranted by reasons of these principles.

137. I accept that given her advanced age, any time spent in custody would have extra significance for MC, in the sense explained in the authorities, but that circumstance does not carry such substantial weight as to result in the sentence being disproportionate to the seriousness of the offending.

Mental health condition and physical health

138. To repeat, the general sense of loss associated with diminishing time, and the health travails that typically arise for someone of MC’s age, have been taken into account in mitigation in her favour.

139. Additionally, MC invokes one of the well-known propositions in Director of Public Prosecutions (Cth) v De La Rosa (2010) 79 NSWLR 1 (‘De La Rosa’) at 177 (third bullet point), being that a mental abnormality may make a custodial sentence weigh more heavily upon her.

140. Dr Nielssen diagnosed MC as having a depressive illness (an adjustment disorder with a depressed mood). Senior Counsel for MC did not suggest that this condition was operative in the period of the offending in a way that might itself serve to reduce her moral culpability.

141. The particular proposition from De La Rosa that MC relies upon is inherently relative, being that the given sentence will weigh more heavily upon the offender than it would upon someone of normal health (The Queen v Guode (2020) 267 CLR 141 at [8](5)). As it appeared from the ERISP considered at the trial, so too it appeared from the material before the Court at the sentencing hearing (in the circumstance of MC’s election not to give evidence), that MC impressed the Court as a mature and independent woman. She, like any woman of her age, has shouldered many burdens throughout her life, even a tragic one, without the onset of any incapacitating mental condition, and has apparently gotten by, and hitherto lived a blameless and productive life, without seeking counselling or medication. This is a testament to her mental strength and resilience. It is not surprising that she now experiences depression and anxiety, but the real and proximate causes for those conditions are her recent predicament arising from her offending, including being subject to investigation, then a contested trial, and now sentencing. Although it is highly possible that depression and anxiety may intensify should she be incarcerated, that is not all that material in the circumstances. It is difficult to see how her mental health condition, such as it is, would cause a sentence to weigh more heavily upon her than upon a person of her age in ‘normal health’; since a first-time offender of her age, with no prior experience of incarceration and otherwise in ‘normal’ health, would also be expected to suffer from some level of depression and anxiety. I give that particular matter little weight.

142. I do, however, take MC’s depression, anxiety and other feelings into account in her favour in somewhat moderating the consideration of personal deterrence (although my view about that particular sentencing consideration is complicated given the presence of other matters that might offset that moderation).

143. MC’s Senior Counsel did not make submissions about any particular physical health concerns in his client.

Antecedents

144. MC has had no criminal history. MC is entitled to some leniency on account of her being a first time offender.

Good character

145. MC relied upon multiple written character references, from Ms Clare Bailey, Ms Carolyn Thornber, Mr Michael Thornber and Ms Rosslyn Crommelin. I have read all of these written testimonials.

146. They paint a picture of a loving mother, supportive wife, generous friend and charitable donor, and a civic-minded citizen with a sense of compassion, who is prepared to help others less fortunate than herself. There is no doubt that, apart from the offending, MC was otherwise of good character.

147. Unfortunately for her, whilst good character is mitigating, especially in the sense of both offenders being ‘first-time offenders’, the weight to be given to that matter is reduced on account of certain considerations. First, it is often the case in fraud offences, and it was the case here, that the actuality and perception of an offender’s good character (and, for reasons explained, the good character of PC who created and sent the documents containing the deceptive representations) enables fraud to occur. Whether the system is one of self-reporting for income tax assessment, social security or other government benefits or, as in this case, applications to the Registrar-General, the system depends for its efficacy upon the apparent trustworthiness and honesty of those who engage with it. Fraud perpetrated by persons of prior good character can be difficult to detect. [15] Secondly, and particularly in the case of MC, her good character did not prevent her offending on three different occasions over a not insubstantial period of time [16] . Given the course of conduct offence for which she has been convicted, the offending cannot accurately be minimised as an ‘aberration’, even if there was a substantial similarity in the deceptions.

Remorse, or contrition?

148. Acknowledging the absence of a guilty plea, Senior Counsel for MC stops short of submitting that the Court should find that she is remorseful. Nevertheless, he submitted that, through the content of the written testimonials, MC has expressed regret extending beyond the proceeding and the effects of the findings of guilt upon herself and her family. Reference was made in the written testimonials, and more specifically in out of court statements made by MC to her referees, to support this submission.

149. That submission needs to be evaluated in the light of other aspects of MC’s conduct since she was convicted.

150. When asked, apparently directly, by Dr Nielssen to explain what went through her mind during the period of the offending, MC’s response was to refer to her need to care for her daughter (who, according to Ms Thornber, was born in 1992 and thus aged between 21 and 23 during the period of offending) and her dealing with her husband’s treatment for an inoperable form of cancer. But the documentary evidence went no further than to indicate that PC (who is now aged 79) had prostate cancer in 2022, many years after the offending (and, indeed, closer in time to when the Property was sold). Dr Nielssen’s report for PC did not take the matter of timing for when he had cancer any further.

151. There is nothing in MC’s account to Dr Nielssen to indicate remorse or contrition. The psychiatrist reported her observation that “it doesn’t seem fair” and her reiteration of what she had said in the ERISP about not thinking that she had done anything illegal.

152. In the sentencing assessment report, the corrections officer recorded observations of MC’s attitude following her conviction. These included that she believed she was entitled to apply for ownership of the property; that her land tax payment established her legal status (or perhaps standing) to make such an application; and that it was not her intention to be deceptive. She stated that had she been aware she had no legal claim, she would not have applied. She regards herself as always being a law-abiding citizen and as having had no intention of acting unlawfully.

153. These were all matters which were substantially raised on her behalf at the trial in her defence, and earlier in her ERISP. On one view, they implicitly add up to a conclusion that, notwithstanding the Court’s verdict, she maintains that she did nothing wrong. Even accepting at its highest her contention that the payment of land tax provided an arguable basis for a claim of adverse possession (however erroneous that belief), she showed no insight into her dishonesty in making assertions about physical possession. She shows no regret for any aspect of her conduct, as distinct from regret for the various consequences of that conduct for herself (and for other family members) that have befallen, and may continue to befall, her. As was once observed in another case:

“We have little doubt that (the offender) would wish to turn back the clock. But true contrition does not arise without an acceptance of guilt.” [17]

154. MC’s position, as reflected in what she said to Dr Nielssen and to the community corrections officer, did not suggest much progression from what she had said to the police in her interview in July 2023 (Exhibit PX 24 at trial). When asked whether, aside from her belief in the legality in her conduct, she thought it was appropriate, her response was to say that she “found it hard in this day and age to say what was appropriate” (Q&A 614). That response struck me as cynical and there is no material before the Court to suggest that she has moved away from that attitude.

155. MC is entitled to her belief and her opinion. It is not a factor which aggravates her offending. It goes, rather, to an absence of mitigation, particularly the mitigating factor of remorse, which can still be found to exist even where an offender has pleaded not guilty and been convicted. [18] Further, given the detailed findings in the Verdict Reasons, her post-conviction statements evince no insight into the seriousness of her conduct.

156. This is relevant to considerations of specific deterrence and also has some bearing upon an assessment of her rehabilitation prospects.

Rehabilitation prospects and likelihood of MC re-offending

157. The good character references are relevant also to the offenders’ prospects of rehabilitation.

158. A finding of remorse is not a prerequisite to a finding that an offender has rehabilitation prospects, and a plea of not guilty does not disqualify an offender from obtaining such a finding (Sigalla v R [2021] NSWCCA 22 per Brereton JA, Hoeben CJ at CL, Cavanagh J agreeing) (at [143]). Indeed, what Brereton JA said at [147] appears apposite in many respects to MC’s position:

“Although the respondent (the Crown) submitted that the conclusion that there could be no finding that there were prospects of rehabilitation was not in error in the circumstances of the case, given the findings about lack of remorse, hubris, sense of entitlement, and that he believed that the ends justified the means, there were contrary indicators: the applicant was of prior good character, having no relevant criminal record; he was well-educated, connected and intelligent; he is married with three daughters, and his wife and daughters continue to visit and support him in custody; and as [the sentencing judge] accepted, he is unlikely to require assistance to reintegrate into the community notwithstanding a lengthy non-parole period. Those factors point to some prospect that he will one day be able to resume a worthwhile role as an honourable citizen.”

159. To be clear, I also find that MC demonstrates a lack of remorse and a sense of entitlement. Her lack of insight leads one to wonder whether, if presented with materially similar circumstances, she would offend again; although, as her Senior Counsel pointed out, it may be doubted whether such opportunities would present themselves in the future. Notwithstanding those concerns, I have also found that she was of prior good character (having no criminal record or any history of anti-social behaviour), had a good career, was well-connected, had the support of her husband and sons, and would be unlikely to require much assistance should she be incarcerated. She also indicated to the corrections officer her willingness to engage in intervention and stated that she has engaged with a psychiatrist. Those indications appeared, however, to be in tension with what Dr Nielssen reported (p 6), being that she appeared to have expressed ambivalence towards counselling or taking medication.

160. Be that as it may, on balance, these matters point to reasonable prospects of rehabilitation. I agree with Senior Counsel for MC that in the circumstance that she is unlikely to reoffend (as she says should be found), that should not preclude a positive finding as to her rehabilitation prospects. [19]

161. I agree with the view of the corrections officer, which, as her Senior Counsel noted, was also alluded to by Dr Nielssen, that there is little risk of MC re-offending.

Hardship

162. The co-offenders each relied upon hardship to third parties. They acknowledge that, under the laws of New South Wales, hardship to third parties needs to be ‘exceptional’ before a court will give substantial weight to the hardship that an otherwise justified sentence would cause to those third parties: R v Edwards (1996) 90 A Crim R 510 at 516.

163. In MC’s case, she refers to PC’s cognitive decline and her current role as a carer for him. A report of PC’s mental health was also supplied by Dr Nielssen. This was a report that had been prepared before the trial (dated 1 April 2026). Dr Nielssen made no diagnosis of any psychiatric disorder. No application was made contending that PC was not fit to be tried. According to Addenbrooke’s Cognitive Examination, he scored 93/100. Dr Nielssen noted that his cognitive functioning, which I regarded as reflecting the natural process of ageing, was ‘largely unimpaired’. Senior Counsel for MC did not submit that, if his client were incarcerated, PC’s condition and the hardship to him would rise to the level of exceptional hardship, but submitted that those matters should be taken into account in the overall mix.

164. That position was, with respect, sensible, since there was a slender basis for MC to rely upon this factor. Mr Thornber, in his written testimonial for MC, noted that he and PC were regular gym-goers and spectators at sporting events; a statement which, in the context it was made, was indicative of its relative currency. Dr Nielssen’s report on PC refers to his lifelong habit of physical fitness, albeit that his more recent activities have become somewhat more restricted. He did not mention any apparent incapacity in PC. Although there are references to some forgetfulness or memory problems, these are only vague. At its highest, Dr Nielssen referred to MC’s report to him that PC had left arrangements and planning to her, and to her belief that he could not manage such matters himself without her assistance. Dr Nielssen did not suggest that he be examined for dementia.

165. In the absence of evidence from MC, I place little weight upon the hearsay evidence of Dr Nielssen or Ms Bailey on the subject of MC’s care for PC, which was, at any rate, generalised in nature. There was a general absence of particularity as to what it is that MC does for PC and what PC would miss if she were incarcerated. There was nothing to suggest, for example, any relatively recent alteration to estate planning because of a decline in PC’s cognitive capacity, such as the execution of an enduring power of attorney or enduring guardianship arrangements, which could have qualified as an objective signpost of PC’s dependence upon MC.

166. Reference was also made to PC’s earlier suffering from prostate cancer, which I have touched upon. This was not, however, a matter referred to in MC’s submissions on this topic. ‘Hardship’ to PC is immaterial.

Delay

167. Both offenders relied upon this factor, albeit in different ways. But there were some general similarities as well, which I will address first.

168. The factor of delay has several dimensions, and not all of them necessarily assist offenders. Apart from the extent of the delay, what is important is the reason for delay and its impact on the offender.

169. Though they both complained that the delay which they endured was beyond their control, the offenders did not provide any evidence of any particular reasons for delay beyond the ordinary operation of the criminal justice system. But one obvious additional reason relates to the nature of the offending. As Bathurst CJ observed in Giourtalis v R [2013] NSWCCA 216 at [1791], in the case of a complex fraud it will always be necessary to balance the effect of the delay on the offender against the difficulty and complexity of proving the offence and the need for general deterrence. Delay caused by the difficulties in detecting, investigating or proving fraud is ordinarily not a mitigating factor.

170. Senior Counsel for MC noted that his client is being sentenced just over three years after her arrest in July 2023. She argues that being sentenced more than three years later represents substantial delay for which she is not responsible. In conjunction with the death of her daughter in November 2024, and the passage of the matter through the criminal justice system over which she had no control, it is said that this is a matter that should be taken into account in mitigation.

171. Her submission was thus relatively narrow. It concentrated upon the period of delay since her arrest, rather than the delay since the commission of the offending (which is obviously a much longer period).

172. I accept that, as MC told Dr Nielssen, that through the process of the criminal proceeding she became stressed and depressed. MC’s submissions are otherwise unpersuasive. First, the period since her arrest was, to a large degree, a function of the nature of her offending, which is notoriously difficult to detect. Second, although it may be accepted on the probabilities that she is blameless for the delay since her arrest, she did not contend, or seek to prove, that prosecutorial authorities were dilatory or neglectful in a way that exacerbated that delay.

173. The very sad circumstance of her daughter’s passing in November 2024 does not add to the weight of her argument on this point. Noting her arrest in July 2023, it would have been surprising if a defended criminal proceeding of this scope (involving events going back some 30 years) and complexity (complexity being a factor that MC and AC jointly invoked in support of a trial by judge alone), vigorously defended as it has been, had been completed by November 2024, when her daughter sadly passed away. In fairness, Senior Counsel for MC clarified in oral argument that the linkage between delay and the tragedy concerning her daughter only arose from the circumstance that MC’s natural bereavement from around November 2024 was worsened by the delay.

174. I am not persuaded on the probabilities that delay is a mitigating factor in MC’s case.

The subjective case of AC

Age and background

175. AC was born in 1984. He was 29 years of age in the period of the offending. He is now 42 years old.

176. AC relied upon the evidence of Dr Kim Colquhoun, who is his wife. She is also a lecturer in Veterinary Science. She swore an affidavit dated 27 July 2026 (to which there was an exhibit). Her evidence was principally directed towards the consequences of any penalty for herself and her family, which I will come to.

177. AC met his wife in 2003, and they have been together since that time. They have lived together in Australia and the United Kingdom.

178. He is a computer programmer by training, although for reasons his wife explains, he has stopped paid employment in that area so that he can manage the day-to-day care of the children in his family.

179. Beyond these matters, there is little that is known about AC’s background, such as his family upbringing or level of educational attainment. This was not a case where he relied upon the report of a mental health professional, which typically goes into considerable detail about an offender’s background.

Hardship

180. This factor was front and centre of AC’s overall submissions on his subjective case.

181. As indicated, Dr Kim Colquhoun swore an affidavit which was primarily directed towards establishing her and AC’s parental responsibilities. She deposed that they have nine children in their household. They have been foster carers for five and a half years. She indicated that they have three biological children (ranging in age from nine to thirteen years). The (six) children in foster care range in age from five to ten years.

182. She detailed certain issues associated with their biological children. The eldest child (F), who is 13, has been diagnosed with Autism Spectrum Disorder (ASD) and Attention Deficit Hyperactivity Disorder (ADHD), and has certain physical needs. To her credit, and to the credit of her parents, she is a talented swimmer. Their 11 year old son (O) is in Year 6 and performing very well, having a key leadership role at school and bonding well with the extended family. Their youngest daughter, aged nine, also has diagnoses of ASD and ADHD.

183. Dr Colquhoun then described their foster children. She explained that they did not set out to have nine children (including their biological children) under the one roof. Their household grew through emergency placements, ‘failed’ reunifications, the death or incapacity of other carers, and the breakdowns of other placements.

184. The foster children each present particular challenges. The two five year old twins (H and S) endured hardship in their early childhoods associated with their biological parent being admitted to a mental health unit. They were neglected, lacked stability and adequate access to food. AC and his wife support them through occupational therapy to address their development delays and emotional regulation.

185. Their seven year old daughter (K) has experienced significant trauma. She was diagnosed with ADHD and has a trauma-related attachment disorder for which she receives prescribed medication.

186. Their six year old son (T) has language and behavioural issues and has undergone surgery for his hearing and breathing. He has a mood disorder.

187. T and his two brothers (J and Z) have impaired executive functioning. They have trouble with impulse control, hyperactivity, adaptive behaviour and social communication and, to varying degrees, suffer from a cognitive impairment. They receive medication and attend therapy.

188. Dr Colquhoun’s narrative is supported by considerable documentation in an exhibit to her affidavit. It is also supported by Ms Ruth Woerner’s written testimonial, to which I will return.

189. Dr Colquhoun says that AC plays an important role during the school week, particularly in supporting T. She describes him as the primary carer in the household (she being the primary income earner). AC manages school drop-offs and pick-ups, medical and therapy appointments, transport, sporting commitments, family-contact arrangements, and meetings and calls from school. She says he provides the children with predictable routines and close supervision.

190. She says that if AC were imprisoned, she would be left with the care of nine children whilst trying to continue with her employment. She deposed that she herself has no family in the country who could step in to take over AC’s role. In effect, AC was irreplaceable as the children’s day-to-day carer. She referred to the dislocation to the family that would result from his incarceration. Some or all of the six foster children would need to be removed from the family home. There was also a prospect of a change of schools. Dr Colquhoun was concerned about the distress that would be caused to them if they were removed. She also indicated that she and AC did not consider that they could relocate to New South Wales. Their connections with the Queensland child protection system were too embedded.

191. I accept Dr Colquhoun’s account of the consequences for her and her family should AC be incarcerated.

192. Counsel for AC submitted that there would be exceptional hardship to the nine children, if not also his wife, if AC were imprisoned. It was not suggested, in terms, that any anguish experienced by the offender that might follow from the imposition of any particular penalty would itself rise to the level of exceptional hardship. Certain things were said by his mother to Dr Nielssen about her concern as to the consequences to AC of his offending. These were not only out of court statements made by MC which could not be tested, but were also statements that AC did not personally adopt in his own case. Accordingly, no weight is placed upon those statements.

193. It is unnecessary to be categorical as to whether AC has demonstrated ‘exceptional’ or ‘highly exceptional’ hardship. The Crown concedes that it is open to the Court to find that the circumstances of hardship to third parties consequential upon AC’s incarceration are sufficiently exceptional to be taken into account, and even accorded substantial weight.

194. I accept that the family situation narrated by Dr Colquhoun engages this mitigation factor in AC’s favour. That means that the factor of hardship should be given substantial weight in the synthesis. I accept that the mercy principle of sentencing has a role to play.

195. Some care, however, needs to be exercised when applying that principle, lest the invocation of the mercy principle overwhelm other important sentencing principles, or infringe another principle of sentencing, being equality before the law, and the concern that if an offender who has needy dependents is treated more leniently than one who does not, this may adversely affect the appearance of justice (Markovic v The Queen (2010) 200 A Crim R 510; [2010] VSCA 105 at [7]).

Antecedents

196. AC is entitled to some leniency on account of his being of his being a first time offender.

Good character

197. AC relied upon written testimonials from Ms Ruth Woerner and Reverend Thomas Pountain. Ms Woerner, a primary school teacher, has known AC since their university days over 20 years ago. Reverend Pountain has known AC since 2020. Both are upstanding citizens and their views merit respect. As indicated, Mr Thornber provided a written testimonial for MC, in the course of which he was also very complimentary of the contributions made by AC and his wife to the care and support of Aboriginal children.

198. I referred earlier to AC’s role as a foster parent which, according to his wife, commenced five and a half years ago (i.e. well after his offending). Nevertheless, the role is another tangible, albeit post-conviction, indication of good character in the sense of the contribution he has made to society.

Remorse or contrition

199. AC’s Counsel acknowledges that he has shown no remorse or contrition.

200. In the sentencing assessment report, the community corrections officer observed that it had not appeared to AC that he had done anything wrong. Moreover, as I have indicated, he trusted MC, and his wife described him as a trusting person. The impression is created that he was doing his mother’s bidding.

201. But, in fairness to him, the community corrections officer reported that AC recognised the significance of legal ownership and the need to seek confirmation regarding the ‘legality of the property’, and had “overlooked the seriousness” of the matter at the time.

202. Interestingly, he further indicated that he was conscious of the possibility that the “rightful owner” might emerge at any stage. That would belie the notion that he was simply asked by his mother to engage in the deceptions without any knowledge of the circumstances by which the Property might be obtained.

203. These were matters about which he gave no evidence at the trial. They indicate some, albeit very limited, level of insight into his offending. There is little to no appreciation that he benefitted by the offending and that, in the absence of having any entitlement in his own right to invoke adverse possession to obtain the Property, he rode on his mother’s coattails. What appears to exercise his mind more is the consequences of his offending for his family and his responsibilities as a full-time carer.

204. His Counsel did not advocate for a finding of remorse and I do not find that he is remorseful. As I explained in connection with MC’s case, that has a consequence in terms of the role that specific deterrence has to play, which is not favourable to AC.

Rehabilitation prospects or likelihood of reoffending

205. Notwithstanding the absence of remorse, Counsel for AC submits that he has strong prospects of rehabilitation on account of his prior good character (including good conduct), lack of antecedents, family support (including a ‘pro-social spouse’), and his period of employment.

206. In the sentencing assessment report, he indicated a willingness to undertake ‘intervention’ and financial counselling, and continue with his psychological support.

207. Those factors may be accepted. However, the Court is concerned not only with the absence of remorse, but in addition, the limited nature of his insight into the wrongfulness of his conduct, which includes an inherently serious finding of dishonesty against him. There is nothing, in short, to indicate that AC has learned much about himself from the experience. Balancing the matters out, nevertheless, I find that his rehabilitation prospects are reasonable.

208. There is little risk of re-offending, a finding supported by the opinion of the community corrections officer who authored the sentencing assessment report.

Delay

209. I reiterate the general observations about this particular factor that I made when remarking upon MC’s subjective case.

210. Counsel for AC submitted that he had taken steps to rehabilitate himself at a point where the offence was ‘stale’. Reference was made to observations of Street CJ in R v Todd [1982] 2 NSWLR 517 (‘Todd’) at 519. Since 2015, both offenders have been law-abiding citizens.

211. Moreover, it is inapposite for the offenders to say that the delay had a material impact upon them because of the stress associated with being left in ‘uncertain suspense’. Where Street CJ referred to that expression in Todd, his Honour was dealing with an offender who had committed separate crimes in two different states and faced the prospect of a delay in a subsequent sentencing hearing. It was in that context that the Chief Justice referred to the ‘uncertain suspense’ of a guilty person. The suspense was regarding what penalty would be imposed (and, in particular, what non-parole period would be imposed in applying the totality principle) in a subsequent sentencing hearing.

212. Counsel for AC referred the Court to Sabra v R**egina [2015] NSWCCA 38 at [29]-[38] for the proposition that the principle is not narrowly restricted to the class of offender considered in Todd, but can extend to the situation where: (a) delay has resulted in significant stress for an offender or left him or her, to a significant degree, in uncertain suspense; or (b) the offender has adopted a reasonable expectation that he or she would not be charged, or that a pending prosecution would not proceed, and has ordered his or her affairs on the faith of that expectation.

213. Although AC subsequently uprooted himself and his family, relocating to Queensland, there is nothing to suggest that this ‘ordering of affairs’ was attributable to anything which would have induced in him an expectation that he would not be charged. Consistently with his other apparent professions of innocence, which appear to have endured beyond the trial, there is nothing to suggest that he had any ‘uncertain suspense’ at all.

214. There was one potential matter in AC’s favour. Since he now resides in Queensland, there would be potential difficulty for him if the point was reached whereby the Court considered a custodial sentence, given his ineligibility to serve that by way of an intensive correction order (ICO). Depending on the Court’s ultimate disposition, that concern may or may not be somewhat academic.

215. Any point of delay does not go very far in the circumstances of either offender. Both offenders continued after 2015, as they characteristically had, as law abiding citizens. They have the benefit of some leniency because of prior good character. They also have the benefit of a positive finding as to their prospects of rehabilitation (if not as extensive as they submitted), partly because of their good behaviour since 2015.

Comparable cases

216. Counsel for the co-offenders did not cite any case comparable to the offending in issue in this case. The Crown similarly did not provide any comparable case. No party drew attention to the sentencing statistics under s 192E that emerges from the Judicial Commission of New South Wales’ Judicial Information Research System (JIRS).

217. Counsel for AC described the offending as a ‘singular’ instance of fraud. I agree.

Parity

218. Counsel for AC submitted that his conduct demonstrated significantly less culpability than that of MC. His role, as was found in the Verdict Reasons, was to reinforce and support MC’s representations. Her deceptions were greater in number. His Counsel did not say so in so many words, but the Court nonetheless finds, based on what AC said to the community corrections officer, that he trusted MC (and PC), without any real inquiry into what he was doing. This, I note, was evidence that was not at trial, and was therefore unavailable for consideration on the question of his state of mind, but was only given in the course of the sentencing hearing. But MC, who on one view had an interest in doing so, did not contradict this position. As his mother, realistically, it is unsurprising that she did not.

219. MC accepts that she played a more substantial role in the commission of the offence than AC. The Crown made a similar submission, emphasising the greater extent of her planning if one included the broader context of her awareness about the Property and its potential exploitation. Her involvement in the offending was also for a longer period.

220. The correctness of MC’s concession was potentially illuminated by another matter not evident at the trial. In that respect, in Dr Nielssen’s report (p 2), the following statement was made: “Mrs Colquhoun confirmed that quite strenuous efforts were made by her husband to locate any potential heir, or rightful owner to the property” (emphasis added). Read in context, those “strenuous efforts” occurred from 1997 to 2002. This statement was potentially significant in the light of MC’s position at the trial, itself reflected in her ERISP, which included the proposition that she only became ‘introduced’ to the Property independently of her husband, through Paul Cooper, and could not remember PC mentioning the Property to her before July 2003 (Exhibit PX 24, Q&A 34).

221. I accept, however, that it is not possible to find beyond reasonable doubt, on the basis of this evidence alone, how much MC knew about the Property prior to July 2003. It was not possible to know the point of time she was referring to when she stated this knowledge to Dr Nielssen. I accept that, but it provides another illustration of the need for caution about construing out of court statements made by an offender who does not subject themselves to potential scrutiny.

222. The Crown referred me to passages in her ERISP (Ex PX 24, Q&A 52-66 and Q&A 245-8) which, it argued, suggested that she had a greater knowledge than what she had indicated to Police. Consistently with what was found in the Verdict Reasons, certainly in comparison to AC, she was far from being a stranger to the Property even as at July 2003.

223. The Court also notes that MC’s involvement was of longer duration than AC.

224. The Crown submitted, and the Court accepts, that, comparatively, AC has in his favour a finding of hardship to his family that would be a consequence of any imprisonment imposed upon him. It also appears that since the offending, he has been comparatively more active in seeking out treatment, specifically in engaging in counselling.

The instinctive synthesis

General

225. I earlier noted the maximum penalty for the offence, of 10 years’ imprisonment, as an important yardstick.

226. I take into account the sentencing purposes in s 3A of the CSP Act. These are:

(a) to ensure that the offender is adequately punished for the offence, (b) to prevent crime by deterring the offender and other persons from committing similar offences, (c) to protect the community from the offender, (d) to promote the rehabilitation of the offender, (e) to make the offender accountable for his or her actions, (f) to denounce the conduct of the offender, (g) to recognise the harm done to the victim of the crime and the community.

Submissions

227. Senior Counsel for MC emphasised that there were several highly unusual characteristics to this case. He argued that whilst general deterrence had a relatively limited role to play, there was limited (if any) need for weight to be given to the considerations concerning the need to protect the community, making her accountable, denouncing her conduct, or recognising harm done to the victim. There was little need for specific deterrence to be emphasised. There were factors in her favour regarding rehabilitation. It was submitted that, although such options would be exceptional for an offence of this kind, a conditional release order or community corrections order would be within range as an appropriate and proportionate response to the offending. According to the sentencing assessment report, the latter option was available.

228. If, however, the s 5(1) threshold is crossed, it was submitted on behalf of MC, in the alternative, that a sentence of two years or less would be open and appropriate, and that the sentence could be served by way of ICO.

229. Further in the alternative, if a full-time custodial sentence were imposed, it would be open and appropriate to make a finding of special circumstances based on (individually or cumulatively) her prior good character, the circumstance that this would be her first time in custody, her advanced age, and the hardship that would be experienced by PC.

230. The Crown submitted that in MC’s case, the s 5(1) threshold is crossed. Recognising the favourable circumstances of prior good character, age (and any age-related) health issues, the Crown submitted that it was open for the Court to determine whether an ICO might be the mode of serving any term of imprisonment. If a custodial sentence were to be imposed, the Crown submitted that her age and the circumstance that this would be her first time in custody would warrant a finding of special circumstances to justify varying the length of the usual proportion of the non-parole period.

231. Counsel for AC submitted that AC’s conduct did not cross the s 5(1) threshold. Imprisonment was a penalty of last resort. She submitted that his lack of antecedents and the delay meant that specific deterrence had a reduced role to play. Whilst she accepted the significance of general deterrence for offences of this type, that, she submitted, could be adequately addressed by a community corrections order.

232. In the very recent sentencing assessment report, AC was assessed as being unsuitable to undertake community services work because of his residence in Townsville.

233. The Crown submitted that AC’s lesser involvement and lesser culpability may, in combination with the hardship to his family, make it open to the Court to find that the s 5(1) threshold is not crossed.

Consideration

234. There is no presumptive hierarchy in evaluating the sentencing principles in s 3A. What weight they have depends upon the facts as they pertain to each offender considered separately.

235. But what I am about to say is, however, generally applicable to the positions of both offenders, unless indicated to the contrary.

236. In my opinion, general deterrence is to be given primary weight to this offending which, of its nature, is difficult to detect and difficult to prove. That this offence was ‘singular’ does not mean that the force of general deterrence should be diluted. To the contrary, the rare nature of this offending suggests that general deterrence should be given force to ensure that it does not become more frequent than it is. [20]

237. Kindred considerations of retribution and denunciation are also to be given substantial weight. Both of these principles feed into the notion that sentencing courts should impose sentences that accord with legitimate community expectations. [21] The community expects that persons who act deceptively and dishonestly to obtain property that does not belong to them merits punishment. Further, arguably, retribution has even greater force where, subject to other proceedings of which this Court has no visibility, it is unclear whether, and to what extent, anything of monetary value can be recovered from the offenders, where both have been unjustly enriched. [22] Denunciation reflects condemnation of the conduct which inherently offends the standards of honest people: an element of the offence. This principle vindicates, or is intended to reinforce, the standards of honest people.

238. The sentencing principles of holding the offenders to account, recognising harm (in the sense that I described earlier) to the community, and protecting the community are all bound up, if not accommodated within, these principles.

239. In view of the absence of remorse and the lack of insight such as I have determined in the case of each offender, there is also a not insignificant role for specific deterrence; even if that is moderated to a minor degree by the expressions of regret and my finding that each of them are unlikely to reoffend. In both cases, the offenders, being persons of prior good character, must henceforth bear the stigmatic consequence of their offending. In AC’s case, the sting is likely to be greater given his younger age and the potential detriments that might follow him for the rest of his career and life as a consequence of his offending.

240. Since they have behaved well since their offending and are unlikely to reoffend, there is a somewhat lesser need to rehabilitate them. That does not mean that rehabilitation prospects are immaterial. It does mean that this principle has a relatively subsidiary role in the sentencing exercise.

241. Another principle of sentencing is equal justice and the desirability of a reasonable consistency in sentencing for the same kind of offence. Put negatively, a sentencing court needs to avoid inequality of outcome. There are cases of social security fraud committed by persons in desperate need. Frauds can also be a species of white-collar crime committed by professionals who abuse the trust reposed in them, say, for gambling or drug addictions. Or, as is the case here, they can be committed by persons of good character who have aspirations to secure and enhance their financial positions and comfort through the acquisition of real property belonging to another, and who use deceptive and dishonest means to obtain it. In R v Boughen [2012] NSWCCA 17 Simpson J (Hislop J and Latham J agreeing), after describing tax evasion and social security fraud as being two sides of the same coin, deprecated the tendency, in practice, for punishments for the latter being more severe than for the former. Her Honour observed (at [96]):

“There is undoubtedly a pathos about the prospect of two middle aged men, of prior good, even exemplary, character, each with some health issues, who have expressed remorse for their conduct, being sentenced to imprisonment. That pathos cannot be permitted to overshadow the objective seriousness of the offences: two middle aged men, intelligent, professionally successful, financially secure, prosperous, over a seven year period defrauded the Australian community of very significant sums of money, leaving others, less financially able to do so, to bear the burden of financing the many services government provides. The community cannot afford for judges to be squeamish about discharging their duty, however personally painful it may sometimes be. To fail to sentence middle class offenders commensurately with social security offenders risks bringing the administration of justice into disrepute as perpetrating class bias.”

242. Senior Counsel for MC argued that, given the few truly comparable cases to this case, what was important, in respect to the aspect of consistency, was the consistent application of well-known principles directed towards the attainment of individualised justice, and not consistency in outcome. There is force to that response, but it does not remove, with respect, the good sense in what Simpson J said. Put another way, what her Honour said guards against the risk that principles such as retribution and denunciation are disproportionately lessened because of the subjective characteristics of a certain type of offender.

243. I accept the proposition, which was common ground, that MC was more culpable than AC and that AC has, by reason of his family circumstances, a more powerful subjective case.

244. I have concluded that in MC’s case, having considered all possible alternatives, no penalty other than imprisonment is appropriate. The length of the term means that she does not qualify for it to be served by way of intensive correction order.

245. I find that special circumstances exist by reason of her being a first time offender, her prior good character, and her age and age-related issues.

246. In AC’s case, the Court proposes to make a community corrections order.

247. There was some debate about the potential application of additional conditions if that contingency came to pass. Counsel for AC appeared to suggest that a supervision condition was unnecessary given his proximity to supervision by persons associated with the child protection system in Queensland. In the Court’s view, that is an inadequate substitute.

Sentences

248. Mrs Colquhoun, please stand.

249. I sentence you to a term of imprisonment of two years and four months, commencing 3 August 2026 and expiring on 2 December 2028 with a non-parole period of 1 year and 2 months expiring on 2 October 2027; after which you will be eligible for release on parole.

250. Mr Colquhoun, please stand.

251. I sentence you to a community corrections order commencing 3 August 2026 and expiring 2 February 2028, subject to your compliance with:

252. the standard conditions that you:

(a) must not commit any offence; and (b) must appear before the court if called on to do so at any time during the term of the order; and

2. the additional conditions that:

(a) you are to continue to undertake a psychological counselling program as determined by a community corrections officer; and (b) you are to submit to supervision by a community corrections officer.

252. You are to make telephone contact with the Leichhardt Community Corrections Officer within 7 days of these orders.

253. I direct that your solicitor explain to you your obligations under this order and the consequences that may befall you should you fail to comply with them.

**********

Endnotes

R v Olbrich (1999) 199 CLR 270 at [27].

R v Mungomery (2004) 151 A Crim R 376; [2004] NSWCCA 450 (‘Mungomery’) at [40].

Dimitriou v R [2025] NSWCCA 18 (‘Dimitriou’) at [166].

R v Mungomery at [40]; Luong v R [2014] NSWCCA 129 at [21].

Stevens v R [2009] NSWCCA 260 at [77]; Dimitriou at [166].

Nosti v R [2024] NSWCCA 158 (‘Nosti’) at [45].

R v Mears (1991) 53 A Crim R 141 per Lee CJ at CL (Gleeson CJ and Loveday J agreeing) at 145; Cordoba v R [2021] NSWCCA 144 at [112]. In Abellanoza v R [2021] NSWCCA 4 it was noted (by Meagher JA at [3] and Fullerton J at [26]-[27] that there was no obligation for a sentencing court to determine motive.

R v Pont [2000] NSWCCA 419 at [43]-[44], [47]; R v Stanbouli (2003) 141 A Crim R 531; [2003] NSWCCA 355 at [33]-[35].

The case was cited on the causation element of deception in Attorney-General’s Application pursuant to s 108 Crimes (Appeal and Review) Act 2001 (NSW): Re Robert Burton (a pseudonym) [2021] NSWCCA 87 at [74]-[75].

Refina Pty Ltd v Binnie (2010) 15 BPR 28,633; [2010] NSWCA 192 (‘Refina’) at [9], [79]; Newington v Windeyer (1985) 3 NSWLR 555 at 563F-G.

Approved in R v Donald [2013] NSWCCA 238 at [85].

Whyte v R [2019] NSWCCA 218 at [30]-[36].

See R v Rivkin (2004) 59 NSWLR 284; [2004] NSWCCA 7 at [412] (reported version excises [305]-[435]); also R v Curtis (No 3) [2016] NSWSC 866 at [24].

R v DB [2001] NSWCCA 320 (‘DB’).

McMahon v R [2011] NSWCCA 147 at [83].

Luong v R [2014] NSWCCA 129 at [21].

R v Price [2004] NSWCCA 186 at [21].

Allen v Regina [2008] NSWCCA 11 at [41].

R v Pogson; R v Lapham; R v Martin [2012] NSWCCA 225 at [120]-[123].

Regina v King (2004) 150 A Crim R 409; [2004] NSWCCA 444 at [165].

Markarian v The Queen (2005) 228 CLR 357 at [82].

Environment Protection Authority v Hanna [2018] NSWLEC 80 at [202]-[203].

Amendments

10 August 2026

Minor typographical corrections to [19], [22], [46], and amendment to cover sheet.